Lait v Evening Standard Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lord Justice Longmore,The Master of the Rolls |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] EWCA Civ 859 |
| Date | 28 July 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2011/0086 |
[2011] EWCA Civ 859
IN THE COURT OF APPEAL (CIVIL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Laws
and
Lord Justice Longmore
Case No: A2/2011/0086
Mr Richard Rampton QC and Mr Ian Helme (instructed by Carter-Ruck) for the Appellant
Mr Mark Warby QC and Ms Victoria Jolliffe (instructed by Taylor Wessing) for the Respondent
Hearing dates: 5 July 2011
INTRODUCTION
This is a claimant's appeal in a libel action, with permission granted by Smith LJ on consideration of the papers on 4 February 2011, against orders made by Eady J on 9 December 2010 when he dismissed the claimant's application for summary judgment in respect of the pleaded defences of fair comment (or honest comment, which is the preferred expression following the guidance given by the Supreme Court in Spiller v Joseph [2010] UKSC 53) and justification, and granted summary judgment in the defendants' favour in respect of the honest comment defence.
The appellant is the former Conservative MP for Beckenham. She did not stand for Parliament in the 2010 election, having announced on 20 September 2009 that she would not do so. Her claim arises in respect of an article published by the respondents in the first edition of the Evening Standard on 9 November 2009. The appeal requires the court to revisit what is known in the law of defamation as the single meaning rule.
THE FACTS
The context of the case, and the article complained of, arose out of the notorious controversies of 2009 relating to claims for expenses by Members of Parliament. MPs having their main homes outside London were able to take advantage of a system known as Additional Costs Allowance (ACA), often referred to in the press as the second homes allowance. The scheme allowed those MPs who qualified to recover costs which were wholly, exclusively and necessarily incurred in obtaining accommodation in London. The allowance covered, for example, the reimbursement of interest on mortgage loans. MPs were free to keep any profit made on the sale of the second home; and if an MP nominated the second home as his main residence, he or she might retain the profit without payment of capital gains tax.
The appellant's principal home was at Rye in Sussex. She purchased a flat in her Beckenham constituency and claimed the mortgage interest under the ACA. She also claimed (as the system allowed) travelling expenses.
What became known as the expenses scandal endured for many months in 2009. At length an investigation was undertaken by the Committee on Standards in Public Life under the chairmanship of Sir Christopher Kelly. They published a report on 4 November 2009. In July 2009 a decision had been taken to withdraw the benefit of the ACA from MPs whose constituencies were within 20 miles of Westminster. The appellant had acquired her Beckenham flat at an earlier date. Recommendation 7 of Sir Christopher Kelly's November 2009 report is relevant to the case and was in these terms:
"The recent removal of the right to claim additional accommodation expenses from MPs with constituencies wholly within 20 miles of Westminster should be extended to those whose constituency homes fall within a reasonable commuting distance. The independent regulator should draw up a revised list of constituencies to which this principle applies. "
A few days later, on 9 November 2009, the appellant and three other women MPs wrote to The Times expressing concerns about this proposal. This is what the letter said:
"Sir, There is cross-party consensus about the need to get more women into the House of Commons, and to encourage women with young families to stand for Parliament. As serving MPs, we are concerned that aspects of Sir Christopher Kelly's proposals will discourage women who might otherwise seek their party's nomination as well as exposing existing MPs to unnecessary risk.
The Kelly report does not address the fact that MPs are, in effect, shift workers. On Mondays and Tuesdays, we are expected to remain at the House of Commons for 10 pm votes. The voting process is slow, and means that we are often unable to leave Westminster until 10.45 pm. Under Kelly's proposed regime MPs whose constituencies are within an hour's train journey of London will receive no financial assistance to rent accommodation, and will have to return home each evening.
Trains are slower and less frequent at night, and some MPs will not be able to reach their home stations until after midnight. In some cases, they will have to alight at unstaffed stations and walk to their cars through car parks or wait for taxis. The risk of mugging or sexual assault is obvious, and is likely to deter women who currently have jobs where the safety of employees is treated with the seriousness it deserves. We cannot believe that Sir Christopher Kelly seriously intends that his proposals should put female MPs at unnecessary risk, but in the light of this report we call upon the leaders of our parties to reaffirm their commitment to making Parliament a friendlier place for women. We also call on the Independent Parliamentary Standards Authority to ensure that the safety of current and future MPs is a guiding principle in its deliberations."
The letter prompted the publication in the Evening Standard, the very same day, of the article complained of in these proceedings. I will set out the same passages as did the judge:
"But today women MPs attacked one of the Kelly Report's key proposals – a ban on second homes for those who live within an hour of Westminster.
Labour's Claire Curtis-Thomas, Kali Mountford and Phyllis Starkey, as well as Tory MPs Jacqui Lait and Eleanor Laing, said that the proposals 'will discourage women who might otherwise seek their party's nomination, and well as exposing MPs to unnecessary risk'".
Here is the paragraph said to defame the appellant:
"However, the criticism may risk the ire of some. Ms Lait claimed large sums to travel to her family home in Sussex, even though her constituency home was 11 miles from Westminster. She was forced to pay back nearly £25,000 after it emerged she had made a major capital gain on the sale of a home funded by the taxpayer."
PROCEDURAL HISTORY
In order to understand the issues in the case, and the impact (or otherwise) of the single meaning rule, it is necessary to trace some of the procedural history. The claim form was issued on 22 December 2009. The particulars of claim pleaded the meaning of the words complained of as follows:
"4. In their natural and ordinary meaning these words meant and were understood to mean that the Claimant deliberately failed to account for a large profit that she had made on the sale of a taxpayer-funded home, a deception so serious that the Parliamentary Fees Office ordered her to pay back almost £25,000."
In fact the appellant had not been "forced" to repay £25,000, or any sum, and had not done so. The respondents had got the facts wrong: the allegation concerned a different MP. A laconic correction was published in the Evening Standard on 26 November 2009, but no further reparation was offered or made.
Although paragraph 4 of the original particulars of claim pleads only one meaning (and alleges no innuendo), as the judge was to point out other meanings are to be found in paragraph 6, which on its face sets out facts and matters to be relied in support or aggravation of the damages claimed rather than the alleged meaning of the article. Thus paragraph 6(2) asserts:
"The allegation was used in the Article specifically to undermine the Claimant's concerns that the proposals to reform funding for Members of Parliament risked deterring women who might otherwise seek their party's nomination. In so doing the Article not only obscured a concern shared by numerous Members of Parliament, but also, critically, called into question whether the Claimant's stance was genuine. Given that the Claimant is an elected public servant who depends on the trust of her constituents, the implication is potentially hugely damaging."
On 15 February 2010 the respondents issued an application to strike out the claim on grounds inter alia that the words complained of were not capable of bearing the meaning alleged. The application came before Eady J on 25 March 2010. He held (judgment of 25 March 2010, paragraph 15) that paragraph 4 of the particulars of claim was "over-pleaded and sets out a meaning which the words are incapable of bearing". He declined however to conclude that the words were not capable of bearing any defamatory meaning. He referred to the contents of paragraph 6. He observed (paragraph 20) that the plea in aggravation of damages should be about the defendant's conduct, and it was "muddling" to rely on a different meaning as aggravating the damages. He said this about paragraph 6(2):
"19. This introduces what Mr Warby [sc. for the respondents] characterises as the 'hypocrisy' charge in relation to the Claimant's stand on the proposed reforms. As I have already indicated, I think this is a legitimate meaning – at least for the purposes of argument at trial. But it is confusing (especially, potentially, for a jury) to have to address a different defamatory meaning in respect of aggravation of damages from the primary meaning. They would have to decide whether the words bore the meaning in question and I cannot see why it should be pleaded in a different place. If it belongs anywhere, it belongs in the conventional meaning paragraph (in this case, paragraph 4 of the particulars of claim). If the...
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