Nicholas Hugh Brown v Tom Bower and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 19 June 2017 |
| Neutral Citation | [2017] EWHC 1388 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17D00558 |
| Date | 19 June 2017 |
[2017] EWHC 1388 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ17D00558
Adrienne Page QC & Jacob Dean (instructed by Carter-Ruck) for the Claimant
Catrin Evans QC (instructed by Wiggin LLP) for the Defendants
Hearing date: 7 June 2017
Judgment Approved
INTRODUCTION
The defendants in this libel action apply for orders and directions for the trial of preliminary issues. Four preliminary issues are proposed. They can be summarised as meaning, defamatory tendency, defamatory impact, and Jameel abuse. The application is made before service of a Defence.
The case for the defendants is, in summary, that the words complained of are not defamatory: they do not bear any meaning that is defamatory at common law or, if they do, the claimant's case fails to satisfy the serious harm requirement imposed by s 1 of the Defamation Act 2013. Alternatively, it is said that the case on serious harm is weak, that the action is not justified by any real need to protect or vindicate reputation, and that it is therefore an abuse of process of the kind identified in Jameel v Dow Jones [2005] 1 QB 946. The defendants maintain that the early determination of these issues would avoid the risk of wasting unnecessary time and costs, either by bringing the action to a swift conclusion or, failing that, by narrowing the issues which flow from the meaning of the words complained of, including the scope of any defences.
The claimant does not oppose an order for the trial of meaning and defamatory tendency as preliminary issues. But he opposes the remainder of the defendants' application. Until recently, his main grounds of resistance were: (1) that the defendants had refused to state whether they intend to rely on a substantive defence, thus depriving the Court of the opportunity to make an informed case management decision; (2) that the best inference from the defendants' conduct is that they do not intend to rely on a substantive defence, in which case it would be an inefficient use of the parties' and the Court's resources to have a split trial on liability and quantum, given the inevitable and extensive overlap between the two.
Shortly before the hearing the defendants felt pressurised into giving an indication of their fall-back position. This was that they might, if unsuccessful at a preliminary trial, advance an affirmative defence of truth. The claimant's primary response has been to criticise the defendants' position for obscurity and lack of detail, and to submit that in the absence of any clear or settled statement of the defendants' position the position remains as it was. The court has been provided with inadequate information, it is said, and should assume that there will or may well be no substantive defence.
THE ISSUES AND THE OVERALL APPROACH
The question before the court is one of case management. The decision must of course be made in accordance with the overriding objective of "enabling the court to deal with cases justly and at proportionate cost". The court must strive to strike a just balance between the parties, having regard to the importance of the substantive rights that are relied on, and the procedural and practical factors that point towards and against the early determination of individual issues.
The difficulties in such cases normally lie in the detail. It is a question of assessing which course of action is, in all the particular circumstances of the individual case, the most likely to achieve the aims specified in CPR 1.1(2), and thereby further the overriding objective. All the factors listed in CPR 1.1(2) are material, of course. Some, however, are of more obvious significance in this instance. There is for instance, no suggestion that the parties are not for these purposes on equal terms. Disproportionately high costs are a particular bugbear of libel litigation, as is delay. So the factors listed in CPR 1.1(2)(b)-(d) must feature prominently in my thinking.
Issues I must consider include these: is an order for the early trial of any given issue likely to produce or assist in securing a just conclusion to this dispute, swiftly, and at lower cost than an alternative procedural approach; or is it more likely to complicate the matter, delay the ultimate outcome, risk injustice, and increase cost in the process?
In making such assessments it is necessary to bear in mind the general principle, to be found expressed in many authorities, that the court should be alert to the risks of attempting short cuts. It is necessary also to take account of the practical realities of libel litigation, and of some of the peculiarities of the procedural law in this area, including in particular the threshold function played by the serious harm requirement, and the offer of amends regime. I will come to these points in more detail after outlining the relevant facts.
THE FACTS
All the parties are well-known. The claimant, Mr Brown, is the Member of Parliament for Newcastle upon Tyne East. He has held that post for some 34 years, since the General Election of 1983. He is a member of the Labour Party. He held a number of ministerial positions when that party was in government, and in the shadow cabinet. He was the party's Chief Whip for some 5 years when it was in power, and was re-appointed to that role in October 2016, when the party was in opposition.
The first defendant, Mr Bower, is an investigative historian, broadcaster and journalist. He has a high profile as the author of a number of unauthorised biographies of major figures in business, journalism and politics. The second defendant, Faber & Faber, is a long-established publishing house.
Mr Brown complains of a passage in Mr Bower's latest work, "Broken Vows – Tony Blair, the Tragedy of Power", which was first published by Faber & Faber in or about March 2016. This work (The Book) has appeared and has continued to be sold in hard copy and, it seems, in other formats. The passage complained of appears on p104 of the hardback. Being short, it is convenient to set it out in full:
"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."
PROCEDURAL HISTORY
Complaint was made by letter from Mr Brown's solicitors dated 10 May 2016. There followed extensive correspondence between them and solicitors instructed by the defendants, which failed to resolve the complaint. Proceedings were issued on 17 February 2017, when a claim form and Particulars of Claim were filed.
The claim
The meanings complained of in the Particulars of Claim are:-
"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".
These meanings are alleged to be "defamatory of the Claimant at common law". It is further and separately alleged that they "have caused serious harm to the reputation of the Claimant". These twin averments reflect the law as it stands following the enactment of s 1 of the 2013 Act. The effect of that section is that a statement is not defamatory and hence not actionable in defamation unless it has a tendency to defame according to the established standards of the common law and its publication "has caused or is likely to cause serious harm to the reputation of the claimant" (the serious harm requirement).
The Particulars of Claim assert that it is "a matter of obvious inference" that serious harm to reputation has been caused in this case; but the matter is not left there. Extensive details are pleaded of matters on which the claimant will rely in support of such an inference. It is unnecessary to set these out here. Broadly characterised, they can be said to fall into seven categories: (a) the nature of the imputation and the response it would be likely to evoke from ordinary reasonable people; (b) the impact that such an imputation would be likely to have on the reputation of "a person such as the claimant", given his position in politics at the time of the alleged conduct; (c) the authority given to the imputation by the apparent "imprimatur" of the News of the World; (d) the publication of the imputation without any qualification or balance but with, it is suggested, an implication that the claimant did not dispute the allegations; (e) the extent of publication; (f) the fact that some friends and colleagues of the claimant have been shocked and raised the matter with him, from which (g) the inference is invited that others who know him or know of him will have accepted the meanings complained of as true. The claimant has obtained four witness statements from friends and colleagues which are before the court, and which are said to support the case advanced under (f) above.
The Particulars of Claim go on to allege that the publication of the words complained of is "likely to cause further serious damage to the reputation of the Claimant in the future", in other words that the case satisfies the second limb of the serious harm requirement. In support of this averment the Book is described as "a major work of biography on an important political and historical figure" which will be an important source of reference, likely to be retained by purchasers and re-read. It is likely to have been obtained by public and academic libraries and to be borrowed or consulted by users in future, it is said.
There are also, separately, allegations...
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...[101] and Lachaux v Independent Print Ltd [2015] EWHC 2252 (QB) [2016] QB 402, and see also the cases summarised in Brown v Bower [2017] EWHC 1388 (QB) [38], and Brown v Bower itself. In Lachaux, the Court of Appeal was not convinced that a preliminary issue trial was generally appropriat......
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...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")). 2 This judgment follows the trial of those issues. The trial has been short, largely because no evidence is adm......
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