Nigel Waterson v Stephen Lloyd MP and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards,Lord Justice McCombe,Lord Justice Laws
Judgment Date28 February 2013
Neutral Citation[2013] EWCA Civ 136
Docket NumberCase No: A2/2012/0083
Date28 February 2013

[2013] EWCA Civ 136

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr Justice Tugendhat

[2011] EWHC 3197 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Richards

Lord Justice Mccombe

Case No: A2/2012/0083

Between:
Nigel Waterson
Respondent
and
(1) Stephen Lloyd MP
(2) Rebecca Carr
Appellants

Desmond Browne QC and David Hirst (instructed by Irwin Mitchell LLP) for the Respondent

Richard Rampton QC and Ian Helme (instructed by Goodman Derrick LLP) for the Appellants

Hearing date: 17 December 2012

Lord Justice Richards
1

Mr Nigel Waterson (the respondent) was formerly Conservative Member of Parliament for Eastbourne. At the general election in May 2010 he lost his seat to the Liberal Democrat candidate, Mr Stephen Lloyd (the first appellant). He subsequently brought a claim in libel against Mr Lloyd and Mr Lloyd's campaign agent, Ms Rebecca Carr (the second appellant), in respect of two pieces of campaign literature produced and distributed by the appellants in the constituency in the run-up to the general election. The appellants raised the defence of honest comment.

2

Following cross-applications for summary judgment, Tugendhat J handed down a judgment on 8 December 2011 ("the first judgment") in which he determined the meanings of the words complained of and ruled that those meanings constituted defamatory allegations of fact rather than comment. On consideration of a draft of the first judgment and before the judgment was handed down, the appellants applied for permission to amend the defence to plead justification in respect of the factual meanings identified by the judge. For reasons given in a further judgment handed down on 13 December 2011 ("the second judgment") the judge dismissed the application. As a consequence of those rulings, summary judgment was entered for Mr Waterson.

3

Permission to appeal against the first judgment was granted by Dame Janet Smith. Permission to appeal against the second judgment was granted at a later date by Norris J, sitting as a judge of the Court of Appeal. The appeals came on for hearing together before us. Having heard argument on the first appeal, however, we decided to reserve judgment on it and to adjourn the hearing of the second appeal, the need for which appeared likely to depend on the terms of our judgment on the first appeal. Accordingly, this judgment deals only with the first appeal.

The first publication

4

The two publications complained of each took the form of a single folded sheet with the broad appearance of a free local newspaper but containing nothing but Liberal Democrat campaign material. They were two in a series of publications of that character.

5

The first publication complained of is headed "Sussex Courier", below which there appear in small black capitals the words "New issue, March 2010", and in slightly larger red capitals the words "Your free local newspaper".

6

On the front page, in bold capitals some 4 centimetres high, is printed the headline "Expenses scandal MP faces defeat", which in strict pleading terms may not form part of the words complained of but provides important context for those words and is certainly included within the general ambit of the complaint. The article underneath the headline is in three columns and is said to be "By Jonathan Walsh Chief Political Correspondent". Mr Waterson does not complain of the first five paragraphs of the article (these explain why it is said he was facing defeat), but he does complain of the following three paragraphs which read as follows:

"The borough of Bromley is where Mr Waterson and his family live, more than 60 miles from his constituents.

Taxpayers have paid almost £70,000 during the last four years towards the cost of Mr Waterson's Kent family home. The MP also claimed for food, cleaning, utility bills and over £1,000 to have his garage redecorated at the taxpayers' expense.

Mr Waterson has also claimed for the cost of glossy brochures, featuring the photo-opportunities for his visits to Eastbourne".

7

On the second page, alongside what purports to be a Sussex Courier "Comment" column, appears an article under the bold headline "Expenses scandal: Eastbourne residents speak out". The words complained of in that article read:

"Local residents have delivered their verdict on the MPs' expenses scandal.

Eastbourne's Conservative MP Nigel Waterson has come under fire in recent months for his own scandalous expenses claims.

Mr Waterson claimed almost £70,000 for the mortgage on his large family home in Kent, which is over 60 miles away from his constituents.

He also claimed over £1000 to have his garage re-decorated.

It's clear that Mr Waterson's expenses claims have upset many people in Eastbourne."

8

There follow two paragraphs of which Mr Waterson does not complain. Immediately under the article is a section presented as "Latest letters to the paper: Eastbourne Herald" (the Eastbourne Herald is a genuine local newspaper) which provides additional context for the words complained of. The "letters" read:

"The electorate is fed up with the entire House of Commons, our MP included … It is time for Eastbourne to vote for a new Member of Parliament".

"Why does Mr Waterson need a large house in Beckenham?"

"I for one would prefer my local MP to live in Eastbourne full-time and offer us taxpayers value for money. Eastbourne deserves more than second best and perhaps it's time we got it".

"Why are you allowed to claim £70,000 of tax payers' money for the mortgage on your home in Beckenham, Kent … why are you allowed to claim tax payers' money to fund your 'Sea Vews' [sic] magazine'? … you do not seem to enjoy mixing with the ordinary voter."

9

Mr Waterson attributes to the words complained of both a natural and ordinary meaning and an innuendo meaning. As Tugendhat J helpfully explains at [10] of his judgment, an innuendo meaning is the technical term for a meaning that would only be understood by a reader who knows facts not stated in the words complained of (in this case those facts are set out in paras 8(1) to (3) of the Particulars of Claim), and the reader interprets the words in the light of those facts. The relevant paragraphs of the Particulars of Claim, taking unopposed amendments into account, are these:

"7. In their natural and ordinary meaning the words complained of … meant and were understood to mean that the Claimant's conduct in making the various expenses claims listed had given rise to legitimate outrage, and that the cause of such scandal was his grave abuse for his own financial advantage of the Parliamentary rules governing such claims.

8. Further, or in the alternative, the words complained of … meant and were understood to mean that the Claimant was one of a number of notorious Members of Parliament, whose conduct had rightly become a subject of recent scandal, because their claims were unlawful and/or in breach of the Parliamentary rules, or such that they were liable to repay the amounts they had received.

Particulars of Innuendo

8(1) In or about July 2009 the Daily Telegraph published over a number of days details of expenses claims made by individual Members of Parliament between 2004 and 2009. The details published became an unprecedentedly notorious matter of national scandal, and it emerged that a very large number of Members of Parliament had made unlawful claims or claims for payment to which they were not entitled under the Parliamentary rules or claims which though within the rules were essentially improper.

8(2) As the scandal increased, on 19 May 2009 the Prime Minister asked Sir Thomas Legg to investigate MPs' claims, and on 19 June 2009 Scotland Yard announced that a number of MPs would face criminal investigation. On 5 February 2010 the Director of Public Prosecutions announced that three MPs would face criminal charges of false accounting.

8(3) Following the articles in the Daily Telegraph a large number of MPs of all parties repaid monies to which they had not been entitled, either voluntarily or as a result of rulings by Sir Thomas Legg.

8(4) The above facts and matters were known to a very large but unquantifiable proportion of the readers of the words complained of."

10

The appellants' Defence attributes the following meaning to the words complained of (the same meaning is given to the relevant words of the second publication, considered below):

"10. The words complained of constituted honest comment on a matter of public interest, namely, the generosity of the Parliamentary expenses system as it was at the time of publication, the use that the Claimant had made of that system while he was MP for Eastbourne and the anger and resentment that those matters were apt to cause, and had caused, amongst voters and taxpayers.

Particulars of Comment

10.1 The comment expressed by the words complained of in their natural and ordinary meaning and in their proper context was that Claimant's conduct in exploiting the expenses system to help purchase and maintain a large house in Kent, sixty miles from his constituency, at considerable expense to the taxpayer, and in maintaining his family home there in preference to Eastbourne, was scandalous and such as to cause legitimate anger, resentment and criticism, with the result that it would be no more than the Claimant deserved if he lost his seat in the forthcoming General Election for those reasons (amongst others)."

11

At the hearing before the judge it was made clear on behalf of the appellants that the meaning for which they contended contained no suggestion that Mr Waterson had...

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