Mark Anthony Allen v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 15 May 2019 |
| Neutral Citation | [2019] EWHC 1235 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ18M02344 |
| Date | 15 May 2019 |
[2019] EWHC 1235 (QB)
THE HONOURABLE Mr Justice Warby
Case No: HQ18M02344
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Robert Sterling (instructed by Carruthers Law) for the Claimant
Jonathan Scherbel-Ball (instructed by Legal Department, Times Newspapers Limited) for the Defendant
Hearing date: 9 May 2019
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.
On 14 June 2017, Grenfell Tower in West London caught fire, and a disaster followed in which many, many of its residents died. The essential facts about this terrible tragedy are notorious, and need no elaboration.
This libel action arises from articles relating to the Grenfell Tower disaster which were published in the hard copy and online versions of a national newspaper about three weeks later.
The claimant is an architect, and a member of the RIBA. At the relevant times, he was employed by Saint-Gobain Limited, a company that designs and manufactures materials for the construction industry. According to the Particulars of Claim, his job title was Habitat Technical Director. The defendant is the publisher of The Times.
On 1 July 2017, the defendant published on page 6 of the hard copy version of The Times, and on its website, an article headed “Grenfell cladding boss is a government adviser”. The hard copy and online versions of the article were illustrated by different photographs and captions, but the text was identical. I shall therefore refer to “the Article”.
The Article named the claimant, and there is no dispute that he is and would have been identified by readers as the “Grenfell cladding boss” referred to in the headline.
The full text of the Article in its original version is set out in the Appendix to this judgment, with paragraph numbering added for ease of reference. I have omitted photo captions, which are not material to the issues I have to decide.
The online version of the Article continued to be published after 1 July 2017, with one change of wording in the headline. From 2 July 2017, it was entitled “Grenfell insulation boss is a government adviser”. This was more accurate, but the change of wording is of no other significance.
On 21 May 2018, the claimant's solicitors wrote to complain of the Article, alleging that it suggested that the claimant had acted corruptly. On 8 June 2018, the defendant replied, denying that contention, and advancing a positive case as to the meaning of the Article, which was said to be a non-defamatory one. The defendant stands by that position. Its meaning is as follows:
“Mark Allen, a senior representative of Saint-Gobain UK, a company involved in the manufacturer of the Celotex insulation boards fitted to Grenfell Tower, is on the Building Regulations Advisory Committee, which advises the Secretary of State on building regulations. The insulation boards are highly flammable and suspected of contributing to the Grenfell fire. Despite the fact that the product has been withdrawn from use on high-rise buildings Mr Allen remains on the Committee. There is concern that building regulations are not fit for purpose and, in the circumstances, the appointment to [the Building Regulations Advisory Committee] of Mr Allen or other members with roles in the construction industry to this Committee may be inappropriate.”
On 29 June 2018, the claimant issued these proceedings. On 9 October 2018, his solicitors wrote, rejecting the defendant's meaning but proposing a revised one of their own. The suggestion that the words bore an imputation of corruption was dropped in favour of a new meaning. On 23 November 2018, the claimant served Particulars of Claim, complaining of paragraphs 1 to 7 of the Article, which I have italicised in the Appendix. The Particulars of Claim incorporated the revised meaning, alleging that the words complained of were defamatory of the claimant in the following meanings:-
“ [1] Mark Allen was the technical director of Saint-Gobain at the time of the Grenfell fire. Saint-Gobain manufactured the Celotex insulation used to clad Grenfell Tower. Celotex insulation is highly flammable and dangerous and there are strong grounds for suspecting that it was the cause of the fire. There are also strong, alternatively reasonable, grounds for suspecting that Mr Allen was responsible for the design, specification and manufacture of the Celotex insulation, which caught fire.
[2] At the time of the fire Mr Allen was also a committee member of the Building Regulations Advisory Committee, a public body that advises the Government on making Building Regulations and setting standards for the design and construction of buildings. Mr Allen, improperly, was also acting in conflict of interest by being a member of the Building Regulations Advisory Committee at the same time as serving as a director of Saint-Gobain, which was selling its products to local authorities in conjunction with the construction and repair of local authority high-rise flats.”
These meanings are not identical to those suggested in the letter of 9 October 2018, but they are not materially different. I have added the numbering, which does not appear in the Particulars of Claim but reflects the way the case has been argued before me at this trial.
The defendant promptly applied to the Master for an order for the determination of two questions as preliminary issues in the claim. This has been the trial of those two issues, pursuant to an Order made by Master Kay QC on 29 November 2018. The issues are:-
(1) “The meaning(s) of the words complained of at paragraphs 7 and 8 of the Particulars of Claim” (that is, paragraphs 1 to 7 of the Article);
(2) Whether such meaning(s) are defamatory of the claimant at common law.
The law
A claimant makes out a cause of action for libel by proving that the defendant has published to one or more third parties a statement in permanent form that refers to and is defamatory of the claimant. Ordinarily, as here, the case is about words, and the question of whether the words are defamatory turns on their natural and ordinary meaning or, put another way, the imputation(s) about the claimant which the words would convey to the ordinary reader.
A judge deciding the natural and ordinary meaning of words in a libel action is making a finding of fact, albeit of a somewhat unusual nature. The essential principles that apply were re-stated by Nicklin J in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [11–12]. I omit internal citations.
“11. The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173D–E, per Lord Diplock.
12. The following key principles can be distilled from the authorities:
(i) The governing principle is reasonableness.
(ii) The intention of the publisher is irrelevant.
(iii) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
(iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
(v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
(vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
(vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
(viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
(ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
(x) No evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning.
(xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
(xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
(xiii) In determining the...
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