Lowe v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,The Hon. Mr Justice Eady |
| Judgment Date | 28 February 2006 |
| Neutral Citation | [2006] EWHC 320 (QB) |
| Docket Number | Case No: HQ04X03970 |
| Court | Queen's Bench Division |
| Date | 28 February 2006 |
[2006] EWHC 320 (QB)
The Hon. Mr Justice Eady
Case No: HQ04X03970
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Desmond Browne QC and David Sherborne (instructed by Mishcon de Reya) for the Claimant
Victoria Sharp QC and Sarah Palin (instructed by Taylor Wessing) for the Defendant
Hearing dates: 15th, 16th and 19th December 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon. Mr Justice Eady:
Introduction
On 15 th December 2005 there were listed before me no less than 16 applications in this litigation, although it emerged that some of these were premature in the sense that the outcome could only be determined after others were resolved. On 19 th December, I was able to give certain rulings, although I indicated that the reasons would follow in January. At that point, however, although Mr Browne QC, for the Claimant, was ready to proceed with his detailed points on the pleading issues, Miss Sharp QC appearing on the Defendant's behalf took the view that she had not had sufficient notice of some of Mr Browne's arguments to be able to address them adequately in the remaining time. Accordingly, with the parties' eventual agreement, I decided that I would resolve the outstanding issues in the light of any further written submissions which counsel wished to place before me, on a sequential basis, during the Christmas vacation. That round of submissions came in dribs and drabs, eventually petering out only on 30 January 2006.
The nature of the claim
The action was brought, by a claim form dated 8 th December 2004, on behalf of Mr Rupert Lowe who is the chairman of Southampton Football Club. He sues Associated Newspapers Ltd in respect of an article published on 27 th August of that year by Mr David Mellor under the heading "I'm giving you the Lowe down, Rupert's really lost it now". The words complained of are relatively short and, submits Mr Browne, correspondingly straightforward. He argues that the Defendant's case requires to be cut down to size because the issues raised are so complicated and extensive that they are out of all proportion to the allegations made. Naturally, it is always an attractive argument, in any libel action, that time and money could be saved by concentrating on the real issues and by the court exercising its case management powers. Unfortunately, questions of principle need to be given priority over case management, and arguments based on the "real issues" between the parties sometimes beg the question of what those issues are.
One of the difficulties about the present case is that the article is written in such an obscure way that it is difficult to divine its message or messages. At this stage, the court must address the issues of meaning, and any possible defences, in the light of any imputations which the words complained of are capable of bearing. When an article is opaquely written, therefore, allowance has to be made for this; defences may be advanced on the basis of any meaning which the words are reasonably capable of bearing. Although it may seem unattractive, it follows that an author or his publishers may sometimes take advantage of the lack of clarity in his writing to prolong and complicate the issues, should there be a claim for libel. That is unavoidable, although I am conscious that close scrutiny is required of any defence in order to ensure that impermissible advantage is not being taken.
The words complained of are as follows:
"WHAT will Rupert Lowe do if Southampton are thrashed by Chelsea at Stamford Bridge tomorrow?
'Don't panic,' advised Corporal Jones, but Rupert doesn't listen. He couldn't wait to get rid of Dave Jones on the basis he couldn't handle the manager's job while he faced charges of alleged child sex abuse for which he later cleared his name.
Sad, because Lowe has been on a surprising high for most of his time with the Saints. But his arrival at the club was hardly glorious. He reversed Southampton into a care home company he and a mate owned.
A manoeuvre that struck many fans as just a repellent piece of financial chicanery. It worked because existing board members benefited more than they would have done if a rival bid from a far wealthier life-long fan, Gavyn Davies, had been accepted".
Thus, it can be seen that the offending allegations fall into two parts. First, there are those about the former manager, Mr David Jones, whatever they mean. Secondly, there is the plain accusation of "repellent" financial chicanery. The natural and ordinary meanings pleaded on the Claimant's behalf are that:
"He had obtained ownership of Southampton by underhand and dishonest means, and he had acted in a wholly unreasonable manner by seizing the opportunity unilaterally to sack Dave Jones as Manager of Southampton using the fact that he was being investigated for charges of alleged child abuse as a false but convenient pretext."
The meaning with regard to the takeover had been expressed in different words in the letter of complaint dated 17 September 2004: "our client was only able to gain control of the Club through irregular means". It will be noted, however, that whichever formulation is used the defamatory sting in that respect is expressed generally by reference simply to "means". It is not confined to the mere use of a reverse takeover.
Secondly, although Miss Sharp says that the Claimant and his advisers did not appear to notice an implication of dishonesty at that time, I do not find any inconsistency. "Irregular" is undesirably vague in the context of defamation proceedings, but it is certainly capable of embracing dishonesty, according to context. If a defendant sets out to plead a case of "irregularity", whether in the context of justification or fair comment, it should be made clear whether dishonesty is alleged and, if not, precisely what is the defamatory sting (falling short of dishonesty) which it seeks to support.
The Defendant's pleaded case
The approach of the Defendant has been to advance its primary case on the basis of fair comment upon a matter of public interest. In the alternative, however, a defence of justification is advanced to meet the possibility that the court finds ultimately that the allegations consisted of fact rather than comment.
In paragraph 6 of the re-amended defence the Defendant has pleaded the following comments in accordance with Control Risks v New English Library [1990] 1 WLR 183:
6.1 The Claimant showed a lack of support and loyalty towards David Jones and acted precipitously in replacing him as manager while he faced charges of child sex abuse for which he later cleared his name;
6.2
6.2.1 That, by agreement with the board of Southampton Football Club Ltd, the Claimant obtained Southampton Football Club through a reverse takeover by his company, Secure Retirement plc; and that
6.2.2 This manoeuvre by those involved, including the Claimant, was a repellent piece of financial chicanery.
It is important to note, however, that the Defendant has gone so far as to plead in the alternative that it will defend, should it prove necessary, the Claimant's pleaded meanings (as set out above) on the basis of fair comment. This may be difficult to sustain, since "underhand and dishonest means" and "false but convenient pretext" would appear to be factual in character. Nevertheless, such a plea requires to be taken at face value and thus to be scrutinised in order to see whether the particulars are such that a person could indeed honestly come to the conclusion, in the light of them, that the Claimant had been dishonest.
In its current form, the alternative plea of justification is put forward in relation to the following Lucas-Box meanings:
9.1 That the Claimant showed a lack of support and loyalty towards David Jones and acted precipitously in replacing him as manager while he faced charges of sexual abuse of children for which he later cleared his name.
9.2 That the Claimant, together with the directors of Southampton football club, was involved in and responsible for a repellent piece of financial chicanery in that the reverse takeover by which he and his company took control of Southampton football club was an irregular, cunning and clever deal, dodge or manoeuvre which eventually benefited him, his company and the existing directors of Southampton football club, at the expense of the club and its fans. Alternatively that there were reasonable grounds to suspect the foregoing.
A considerable number of particulars are set out in the course of the pleading, which are relied upon for the purpose both of justification and fair comment.
The attack on the Control Risks paragraph
It is convenient to address first the application put forward by Mr Browne on the Claimant's behalf that the following words should be struck out of the Defendant's Control Risks paragraph, namely "the Claimant showed a lack of support and loyalty towards David Jones". It is said that there was no reference, explicit or implicit, in the words complained of to found this alleged meaning. In my judgment, however, this meaning should be permitted to stand as one which the words are at least capable of bearing. There is no doubt that Mr Lowe is being criticised, on some basis, for "getting rid of" Mr Jones. On the other hand, it is by no means crystal clear to the reasonable reader precisely what the basis of that criticism is. It obviously relates to Mr Lowe's conduct as an employer towards an employee. It seems to be suggested that, at the material time (on or about 26 th January 2000),...
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