Mamadou Sakho v World Anti-Doping Agency
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 11 February 2020 |
| Neutral Citation | [2020] EWHC 251 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17M02991/QB-2017-002631 |
[2020] EWHC 251 (QB)
THE HONOURABLE Mrs Justice Steyn DBE
Case No: HQ17M02991/QB-2017-002631
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Julian Santos (instructed by Morgan Sports Law) for the First Claimant
Guy Vassall-Adams QC and Victoria Jolliffe (instructed by Covington & Burling LLP) for the Defendant
Hearing date: 16 January 2020
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 HONOURABLE Mrs Justice Steyn DBE
A. Introduction
The first claimant (“the claimant”), Mr Sakho, is a professional footballer who currently plays for Crystal Palace Football Club. Mr Sakho has brought a defamation claim against the World Anti-Doping Agency (“WADA”). This judgment addresses a preliminary issue as to the meaning of the words complained of by Mr Sakho. However, unusually, a prior issue arises as to whether I should determine the meaning only of the primary publications or also of certain republications.
The primary publications (“the Emails”) are:
i) An email sent at 18:02 on 23 August 2016 by Ben Nichols, WADA's Senior Manager, Media Relations and Communications, to Ben Rumsby, a journalist at The Telegraph newspaper (“ The Telegraph Email”); and
ii) An email sent at 21:26 on 20 April 2017 by Mr Nichols to Sean Ingle, a journalist at The Guardian newspaper (“ The Guardian Email”).
Mr Santos, Counsel for Mr Sakho, contends that I should only determine the meaning of the Emails. Whereas Mr Vassall-Adams QC, leading Counsel for WADA, contends that I should also determine the meaning of two republications (“the Articles”), namely:
i) An article published in The Telegraph on 23 August 2016, bearing the headline “ Exclusive: Mamadou Sakho cleared of being a drugs cheat after the World Anti-Doping Agency choose not to appeal Uefa verdict” (“ The Telegraph article”), which includes the words of The Telegraph Email; and
ii) An article published in The Guardian on 20 April 2017, bearing the headline “ Uefa slams Wada over incorrect handling of Mamadou Sakho's drug test” (“ The Guardian article”), which includes the words of The Guardian Email.
Accordingly, the issues are:
i) Should the meaning of the Articles be determined?
ii) What is the meaning of each of the Emails?
iii) If the answer to issue (i) is yes, what is the meaning of each of the Articles?
B. Procedural history
The defamation claim was issued on 17 August 2017. The claim form was amended on 17 November 2017 to add the second claimant.
The following statements of case have been filed and served:
i) Amended Particulars of Claim dated 30 July 2019;
ii) Amended Defence dated 19 September 2019; and
iii) Amended Reply dated 7 October 2019.
A Case and Costs Management Conference (“CCMC”) was held, before Master McCloud on 23 July 2019. Master McCloud made an order at the CCMC which includes the following:
“C. PRELIMINARY TRIAL ON MEANING
6. There shall be a preliminary trial of the issue of meaning (“the Meaning Trial”) to be listed for the first available date after 1 October 2019, before a specialist High Court Judge of the Media and Communications List, with a time estimate of one day. In terms of directions leading to the preliminary trial, the parties shall comply with paragraph 12.3 of the Queen's Bench Guide.
7. No later than 14 days before the Meaning Trial, each party shall file and serve a list of statements which the party wishes the court to determine the meaning of.”
The parties duly filed and served the lists referred to in paragraph 7 of Master McCloud's order. The claimant lists the Emails only. The defendant lists the Emails and the Articles.
C. Issue (i): Should the meaning of the Articles be determined?
Gatley on Libel and Slander (12 th ed.) (“ Gatley”) states at paragraph 6.52:
“Where a defendant's defamatory statement is voluntarily republished by the person to whom he published it or by some other person, the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the claimant may have a choice: he may (1) sue the defendant both for the original publication and for the republication as two separate causes of action, or (2) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote.” (footnotes omitted)
This passage (as it appeared in 9 th edition of Gatley, in substantially identical form) was cited with approval by the Court of Appeal in McManus v Beckham [2002] 1 WLR 2982 at [11] (Waller LJ, with whose reasoning and conclusions Clarke and Laws LJJ agreed). There is no dispute between the parties that it is a correct statement of principle. The same point is made in Duncan and Neill on Defamation (4 th ed.) (“ Duncan and Neill”) at paragraph 8.16.
Mr Sakho has chosen the second option. That is, he has sued in respect of the Emails only; he has not sued in respect of the Articles as separate causes of action. The Articles are relied on by Mr Sakho “ as republications of the words complained of, in support of the First Claimant's case on publication, serious harm and damages” (Reply, para 49).
There was a dispute, addressed in the skeleton arguments, as to whether it was clear on the pleadings which of the two options Mr Sakho had chosen to pursue. However, at the hearing, Mr Vassall-Adams acknowledged that it is now clear that Mr Sakho has not sued on the Articles as separate causes of action. That is plainly right. As the dispute has fallen away, it is unnecessary for me to determine whether WADA ever had good cause to be uncertain. It suffices to say that the position was made clear in the Reply.
The claimant's submissions
The claimant contends that, as he does not rely on the Articles as giving rise to separate causes of action, there is no basis for determining the meaning of the Articles.
Mr Santos relied primarily on the decisions of the Court of Appeal in Slipper v BBC [1991] 1 QB 283 and McManus v Beckham [2002] 1 WLR 2982 as demonstrating that provided a republication (a) conveys the sting of the original, whether in whole or in part and (b) a reasonable person would have appreciated that there was a significant risk of repetition, the republication may be relied on to increase the damages flowing from the primary publication.
He submitted that in the present case, where WADA's words were repeated verbatim in the Articles and WADA plainly intended their words to be republished by the newspapers to which the Emails were sent, the Court is unlikely to have any real difficulty in satisfying itself that the test for reliance on a republication to increase damages is met.
Mr Santos submitted that Stocker LJ's judgment in Slipper at 296A demonstrates that republications (where not sued on as separate causes of action) are to be considered at the damages stage of the trial (as opposed to during a preliminary trial on the issue of meaning). Referring to the reliance placed in Slipper and in McManus on Speight v Gosnay (1891) 60 LJQB 231, Mr Santos submitted that determining the meaning of the Articles in this case would “ alter the approach adopted by the Court in dealing with republications for over 120 years” and should be resisted. If (which the claimant denies) the republications have any mitigating impact, that should only be considered when assessing damages.
Mr Vassall-Adams relied on Economou v De Freitas [2016] EWHC 1853 (QB), per Warby J at [17]:
“The fact that the ordinary reasonable reader is assumed to read the whole of the article or other publication complained of can cause complexities if, as in this case, the claimant sues a defendant for being a source of and causing a media publication. A media publication will often include some material for which the source bears responsibility and some for which he bears none. That is true of the first six of the publications complained of in this action. Such additional material is likely to affect the meaning of the publication. The additional material may make things worse in which case the source cannot be blamed; or it may make the meaning less damaging, or even innocent, in which case the claimant must take the meaning as it emerges from the entire publication. A source or contributor cannot be sued for a defamatory meaning which only arises from part of the media publication to which he has contributed: see Monks v Warwick District Council [2009] EWHC 959 (QB) [12–14] (Sharp J).
There is, Mr Santos submitted, no support in any of the authorities or textbooks for the defendant's approach. The defendant's reliance on Economou v De Freitas and Monks v Warwick is misplaced because the claimants sued on the republications as separate causes of action. Further, Practice Direction 53B (Media and Communication Claims) paragraph 6.1 states that the court may determine the meaning of “ the statement complained of” at any time. It does not make any reference to determining the meaning of a republication which the claimant relies on only as adding to his damages for the primary publication.
Mr Santos sought to refute the defendant's contention that the introduction of the serious harm threshold provides any reason to determine the meaning of republications which are not relied on as separate causes of action, citing Monir v Wood [2018] EWHC 3525 (QB) and Suttle v Walker [2019] EWHC 396 (QB) as examples of cases...
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