Nicholas Brown v Tom Bower and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin,The Honourable |
| Judgment Date | 31 October 2017 |
| Neutral Citation | [2017] EWHC 2637 (QB) |
| Docket Number | Case No: HQ17D00558 |
| Court | Queen's Bench Division |
| Date | 31 October 2017 |
[2017] EWHC 2637 (QB)
The Honourable Mr Justice Nicklin
Case No: HQ17D00558
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Adrienne Page QC and Jacob Dean (instructed by Carter-Ruck) for the Claimant
Andrew Caldecott QC (instructed by Wiggin LLP) for the Defendants
Hearing date: 17 October 2017
Judgment Approved
This is a libel action. On 19 June 2017, following application by the Defendants, Warby J ordered that (a) meaning; and (b) whether the words were 'defamatory' at common law should be tried as preliminary issues ( [2017] EWHC 1388 (QB) ("the First Judgment")).
This judgment follows the trial of those issues. The trial has been short, largely because no evidence is admissible in relation to the issues to be determined.
The Defendants had urged the Court also to direct trial of the issues of serious harm under s.1 Defamation Act 2013 and whether the claim was an abuse of process under the principles in Jameel v Dow Jones [2005] 1 WLR 946, but that application was refused.
I can gratefully adopt the background to the litigation and its procedural history from the First Judgment ([9]–[17]). I shall use the same definitions in this judgment.
Given their importance, it is necessary for me to set out the words in the Book that are the subject of the claim. The following appears on p.104 of the Book:
"The imbroglio intensified after Blair was told that Ron Davies, the Welsh secretary, had been robbed by a male prostitute on Clapham Common. His instant resignation was praised in the media as 'the coming of age of the Blair government' – without their realising that Blair had concealed from the outset that Davies had been lying to the police about the circumstances of the incident. In the ensuing discussion about gays in politics, journalist Matthew Parris declared on BBC TV that Mandelson was gay. Days later, Nick Brown, the new minister of agriculture was accused by the News of the World of paying £100 to rent boys in order to be kicked around a room, and admitted his sexuality. A 'gay mafia' blared the Sun, was running the country. Next, Westminster gossipers blessed 'statesman-like' Mandelson and mentioned him as Blair's heir apparent."
The words complained of by the Claimant are shown in bold. I have included the balance to show their immediate context.
The meaning that the Claimant contends the words bear is:
"that the Claimant had been paying £100 a time to young male prostitutes to subject him to violent sexual acts or that there were strong grounds to so believe"
No Defence has been served, but in a letter from their solicitors dated 4 July 2017 the Defendants indicated that the meaning that they would invite the Court to find was:
"that there are grounds to suspect Nick Brown may have paid young men for consensual rough sex." ("the Defendants' Meaning")
I will deal with the meaning of the Book (so far as it concerns the Claimant) before turning to consider the second point, whether the meaning found is defamatory.
Meaning
There has been no dispute between the parties as to the approach I must adopt to determining meaning. Naturally, Ms Page and Mr Caldecott place emphasis on certain aspects, but there is no disagreement as to the basic approach. There is a dispute as to the 'repetition rule' and its proper application in this case, and I will come to that shortly.
My task is to determine the natural and ordinary meaning of the words complained of. That meaning is the meaning that the hypothetical reasonable reader would understand the words bear. In assessing meaning, no evidence beyond the words complained of is admissible: Charleston v News Group Newspapers [1995] 2 AC 65, 70per Lord Bridge. The same case establishes the principle that the ordinary reasonable reader is taken to have read the whole of a publication; in this case, the whole of the Book. That is important, because the context in which the words complained of appear will often influence the meaning (see Paragraph 16 below).
By this process, the Court arrives at the single natural and ordinary meaning that the words complained of 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 [1968] 2 QB 157, 173D-Eper Lord Diplock.
It is common ground that in determining the single meaning, the Court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the Claimant's pleaded meaning: Slim 175F per Lord Diplock).
There are several authorities which guide the Court as to the process of determining the single meaning. Drawing together earlier authorities, Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 gave the following summary [14]:
"(1) The governing principle is reasonableness.
(2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read 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.
(3) Over-elaborate analysis is best avoided.
(4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any 'bane and antidote' taken together.
(6) The hypothetical reader is taken to be representative of those who would read the publication in question.
(7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the product of some strained, or forced or utterly unreasonable interpretation'
(8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense'."
In Simpson v MGN [2015] EWHC 77 (QB) [10], Warby J noted the following in relation to the third and sixth Jeynes principles.
"As principle (3) indicates, the exercise is one of impression. As Eady J said in Gillick v Brook Advisory Centres (cited in Jeynes at [7]) ' Judges should have regard to the impression the words have made on themselves in considering what impact it would have made on the hypothetical reasonable reader'. Principle (6) requires the court to form a view on how the representative hypothetical reader of the particular publication concerned would be likely to understand the words, bearing in mind where in the publication the words appear; the reader's familiarity with the nature of publication in question; and any expectations created by that familiarity: see John v Guardian Newspapers Ltd [2008] EWHC 3066 (QB), [22]–[23], [32]. I would add, however, that this is an exercise which needs to be undertaken with care. The court can take judicial notice of facts which are common knowledge, but facts which are not need in principle to be admitted or proved, not assumed. The court should beware of reliance on impressionistic assessments of the characteristics of a newspaper's readership."
In McAlpine v Bercow [2013] EWHC 1342 (QB) Tugendhat J dealt with the approach of the court where there are two (or more) rival meanings that are said to be the natural and ordinary meaning [66]:
"… If there are two possible meanings, one less derogatory than the other, whether it is the more or the less derogatory meaning that the court should adopt is to be determined by reference to what the hypothetical reasonable reader would understand in all the circumstances. It would be unreasonable for a reader to be avid for scandal, and always to adopt a bad meaning where a non-defamatory meaning was available. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve."
The recent Court of Appeal decision in Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529 [13]–[16] emphasises the importance of the court having proper regard to the context in which the words complained of appear. 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).
Finally, I need to refer to what are called the Chase levels of meaning. They come from the decision of Brooke LJ in Chase v News Group Newspapers Ltd [2003] EMLR 11 [45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand. In Charman v Orion [2005] EWHC 2187 (QB), for example, Gray J found a meaning of " cogent grounds to suspect" [58]).
It is the Claimant's case that the meaning of the Book, as it refers to him, is Chase level 1. The Defendants' Meaning is a species of Chase level 2.
The Repetition Rule
The so-called 'repetition rule' is a principle " deeply embedded" in the law of defamation ( per Hirst LJ in Shah v Standard Chartered Bank [1999] QB 241, 261G). It has two, quite distinct, applications. First, it is a rule...
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