McKeith v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 14 June 2005 |
| Neutral Citation | [2005] EWHC 1162 (QB) |
| Docket Number | Case No: HQ04X03063 |
| Court | Queen's Bench Division |
| Date | 14 June 2005 |
The Hon. Mr Justice Eady
Case No: HQ04X03063
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Desmond Browne QC and David Sherborne (instructed by Campbell Hooper) for the Claimant
Joanne Cash (instructed by Farrer & Co) for the Defendant
Hearing dates: 6th and 11th May 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.
Mr Justice Eady:
This application raises issues very similar to those in US Tobacco v BBC [1998] EMLR 816 and Cruise v Express Newspapers plc [1999] QB 931, although in the very different climatic conditions brought about by the more rigorous case management regime of the CPR.
In 1988 when US Tobacco was actually decided, it may have seemed odd that a defendant should be prevented from pleading justification in respect of a defamatory meaning which the words complained of were capable of bearing: see e.g. Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967 (where Willmer LJ stated that particulars could not be struck out unless they "can be no answer to any conceivable meaning which a jury might find"). It was an approach which also lay at odds with the principle that a claimant was entitled at trial to rely on a presumption that defamatory words are false unless and until the defendant has pleaded and proved them to be true. How were the jury to approach defamatory allegations which the defendant had not been permitted to justify? Should they treat them as false or simply try to ignore them? That presented certain practical problems, which did not have to be faced in US Tobacco itself because the claim was not pressed to trial.
In the light of the principles expounded in Polly Peck v Trelford [1986] QB 1000, a claimant would be entitled to select one or more defamatory meanings for complaint and leave others out of contention, even though the defendant might be willing and able to justify them. It was necessary, however, for it to be demonstrated that such meanings were "separate and distinct". If the several defamatory allegations had a common sting, then the defendant would be entitled to justify that sting. One way of explaining that principle is that the truth of the common sting would be relevant to the "real issue" between the parties.
Now the court has even greater flexibility in order to achieve the objectives underlying the CPR. Even matters which would be strictly relevant and admissible can be excluded in the interests of proportionality. The facts in the present case are comparable to those in US Tobacco. In that case, the BBC had broadcast allegations to the effect that the plaintiff corporation had breached its agreement with the Department of Health not to market a product called Skoal Bandits to young people. That is because they were potentially carcinogenic. The pleading set out large parts of the transcript which included the more general allegation that, irrespective of the agreement, the product did indeed pose a risk to health. Whereas the breach of agreement was readily justiciable on a manageable basis, the wider charges could range over vast areas of contested expert opinion from a multiplicity of disciplines—at huge cost to the parties and involving a correspondingly large allocation of court resources. The court ruled that the BBC should only be permitted to justify the breach of agreement and not to embark upon the time-consuming and expensive scientific issues.
To try and avoid injustice to the BBC, US Tobacco was encouraged to make admissions to the general effect that many experts were of the opinion that the products were damaging to health. This is not entirely logical, since if health risks were not an issue in the case, what would be the point of the admissions? It was nevertheless perceived as an expedient way of cutting the Gordian knot—what would nowadays be described as "novel and imaginative case management" to prevent a libel action getting out of hand: cf. GKR Karate v Yorkshire Post (No. 1) [2000] EMLR 396, 404, per May LJ.
Since, as I have said, the circumstances are comparable to those in US Tobacco, the steps which the Claimant now invites the court to take are less novel and therefore require less imagination. Dr Gillian McKeith sues News Group Newspapers Ltd over an article published in The Sun on 3 rd August 2004 under the heading "DR? NO—TV You Are What You Eat expert Gillian has dodgy nutrition degree … via post from a small US college".
The article itself is in these terms:
" Television health expert Gillian McKeith is today accused of exaggerating her professional qualifications and misleading the public.
The 45-year-old host of hit diet show You Are What You Eat uses the title Doctor Gillian McKeith and describes herself as the 'world's top nutritionist'.
But The Sun can reveal she has NO medical background. She holds a 'worthless' PhD in holistic nutrition gained via a postal course at a backwater US college.
Last night Channel 4 chiefs stood by McKeith, top right, who has earned a fortune advising stars like Demi Moore and selling health products. Her book from the series is a No1 bestseller.
But as they vowed to continue with a second series, health experts dismissed her theories and warned her 'advice' could put fans at risk.
Rubbish
Dr Edzard Ernst, professor of complimentary (sic) medicine at Exeter University, blasted McKeith—often seen 'examining' patients and performing medical procedures like colonic irrigation. He said: 'In the show I saw there was a total lack of real medical issues. Her theories on food-combining are perfect rubbish.'
Amanda Wynne, senior dietician at the British Dietetic Association said: 'We're concerned. Some of the things she says just aren't true.'
Management for Scots-born McKeith, who lives in Hampstead, North London, claim she has a PhD and MSc from the American College of Nutrition, among other qualifications.
In fact, her primary nutrition-based PhD is from Alabama's Clayton College of Natural Health. A spokesman admitted: 'This PhD is not comparable to those from other colleges'.
However, the General Medical Council said ANYONE with a PhD can call themselves a doctor—because the title is not protected.
McKeith last night said her management team had supplied an incorrect list of qualifications. She said: 'I think I know who sent this. There was a Spanish guy on work assignment over summer, it must have been him'. She expressed surprise that anyone thought she was a medical doctor, adding: 'I've never claimed to be'.
"
| Doctorate? Yes DEGREES in a variety of subjects—including those in which McKeith was said to have qualified—can easily be bought on the internet. An MSc in Nutrition from top US college Belford University costs less than £250. |
The Claimant pleads that the words convey the following meanings:
"… that [she] is a charlatan since she dishonestly claimed to have a genuine nutritionist degree from a respectable American college, when in truth she has only a highly dubious and inferior nutritional degree that she simply purchased off-the-shelf by post from a worthless US college, and has thereby made a fortune by deliberately deceiving the general public in this way".
It is fair to say that the initial letter from the Claimant's solicitors, dated 17 th August 2004, also focussed on what has been called, by way of shorthand, "the deceitful doctorate allegation".
The case was argued by Mr Desmond Browne QC for the Claimant, who submitted that the real issue between the parties is whether his client has made bogus claims and deliberately misled the public about her qualifications. Taking his cue from the Court of Appeal in US Tobacco, he is quite prepared to make admissions to the effect that many experts in the field "disagree with her advice" and that there is "room for debate in relation to nutritional issues". He argues that there is no point in turning the libel action into a quasi-public inquiry about the merits of various schools of thought on such matters. Libel actions "… should not descend into uncontrolled and wide-ranging investigations akin to public inquiries, where that is not necessary to determine the real issues between the parties" : see e.g. McPhilemy v Times Newspapers Ltd [1999] 3 All ER 775, 791, per May LJ.
Mr Browne founds his submissions on two alternative bases. First, there is no "common sting" of the kind contemplated in Polly Peck v Trelford. The Defendant originally pleaded four Lucas-Box meanings; namely, that the Claimant has misled the public by:
i) misrepresenting and exaggerating her qualifications,
ii) performing the diagnosis and treatment of individuals which she is not qualified to do,
iii) recommending self-diagnosis and self-treatment by individuals at home,
iv) making claims about food and nutrition which have no scientific or medical basis.
Mr Browne submits that the first two of these meanings are severable and distinct. First, they both relate to the Claimant's qualifications and, secondly, on one interpretation they concern allegedly dishonest misrepresentations. By contrast, the third and fourth paragraphs are concerned, in a general and unlimited way, with the merits of her nutritional advice. It is not pleaded even by implication that she has been dishonest in those respects.
He argues that the "real issue" between the parties is, or should be, whether the Defendant can prove that she is a charlatan in making false claims as to her qualifications. The action should not be tied up with a wide-ranging debate on different schools of thought about nutrition.
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