Paul Elliott v Richard Rufus (in bankruptcy)
| Jurisdiction | England & Wales |
| Judge | Lady Justice Sharp,Mr Justice Mitting,Lord Justice McCombe |
| Judgment Date | 20 February 2015 |
| Neutral Citation | [2015] EWCA Civ 121 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2 2013 3675 |
| Date | 20 February 2015 |
[2015] EWCA Civ 121
Lord Justice McCombe
Lady Justice Sharp
and
Mr Justice Mitting
Case No: A2 2013 3675
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
Dingemans J.
Royal Courts of Justice
Strand, London, WC2A 2LL
David Price QC (of David Price Solicitors and Advocates) for the Appellant
Jonathan Barnes (instructed by Simon Smith, Solicitor) for the Respondent
Hearing date: 10 December 2014
The claimant in this action for libel, Richard Rufus, is a former professional footballer, as is the defendant, Paul Elliott. On 1 November 2013, Dingemans J rejected an application made by the defendant pursuant to CPR PD 53 para 4.1 after service of the Particulars of Claim but before service of the defence, that the claim should be struck out on the ground that the words complained of were incapable of bearing a meaning defamatory of the claimant. I would not interfere with his decision, and I would dismiss this appeal.
The claimant and the defendant are former friends and business colleagues. The claimant assists in community work through the Charlton Athletic Community Trust. The defendant has had a long and distinguished involvement in various anti-racism initiatives in football; in particular, he is a former trustee of the "Kick it Out" anti-racism campaign and he was awarded a CBE for his services to equality and diversity in football.
The two men fell out about a business venture and it is common ground that as a result, the defendant sent a private SMS text message to the claimant in which Mr Elliott used an extremely offensive word, and that the use of that word was offensive and wrong. On 18 February 2013, both men were then the subject of what was described as an "exclusive" article in the Sun newspaper (the Sun article) which made the text public. The Sun article (which is still available online) is set out in the Particulars of Claim. It is entitled: "N-word slur by CBE Ace, Anti-racism chief's rant", and contained prominent photographs of both the claimant and the defendant. It said: "A football anti-racism champion has sparked a race row after calling another black man "n*****". It said that the defendant had sent the claimant a text message about a business venture which had gone wrong, and set out the content of the text itself (with the offensive word suitably modified) which said: "Ur a stupid man n*****…You dog, Ur history my friend." The Sun article went on to say that the defendant insisted the term was not offensive because of the nature of the conversation, and because it was between two black men. It also said that the row was likely to embarrass the Football Association chairman, who had recently praised the defendant for his work, saying it was "an example to us all".
On 23 February 2013, the defendant issued a Press Release which forms the subject matter of this action. The Press Release was published on the 'Kick it Out' website. It was headed "Paul Elliott CBE resigns as Kick it out Trustee". It said that the defendant "has released the following statement to clarify this decision: "Earlier this week, a former friend and business colleague, made public a (sic) SMS text message I sent him, in which I used a term which is widely known as being derogatory to my community. I regret using it; it is inappropriate and not part of my everyday vocabulary. As an advocate of high-standards of public behaviour and integrity in public life, I know the use of this word sends out mixed messages and contradicts my position as a Kick it Out trustee.""
The claimant's case as pleaded is that the words complained of meant "By way of innuendo" that the claimant, "as a former friend and business colleague had acted dishonourably and betrayed the Defendant and deliberately harmed his reputation by making public a private SMS Text communication sent by the Defendant to the Claimant which was inappropriate in that it contained a term that is widely knows (sic) as being derogatory of the Black community, and which contradicted the Defendant's role as a Kick it Out trustee causing his resignation from it." Though not relevant to this appeal, I should mention that the claimant maintains that he did not make the text public, and had nothing to do with the fact that it became public.
The claimant was not named by the defendant in the Press Release, but it is pleaded (and accepted that for the purposes of the application it should be assumed) that those who had read the Sun article, and the wide reporting of it that followed in the national press, on chat forum sites and on Twitter before the Press Release was published would have understood when they read the Press Release that the claimant was the "former friend and business colleague" referred to. It also appears to be common ground, again for present purposes that the Sun article can be relied on as context.
The argument before the judge fell within a relatively narrow compass; and one might think, rightly so, for a number of reasons. First, the defendant's simple overarching point was that the Press Release was clearly not defamatory because, put shortly, right-thinking members of society generally would plainly not think the worse of the claimant for having made public a text message in which the defendant called the claimant a "n*****". The ancillary point was made that the words "dishonourably", "betrayed" and "private" in the pleaded meaning had been tacked on to create a defamatory meaning, and should be excluded under CPR 53 PD 4.1(1). The claimant's case on the other hand, was (to use Mr Barnes's encapsulation of the case on meaning below) that the words complained of, read in conjunction with the Sun article, at the very least arguably implied that the claimant had spitefully and publicly knifed the defendant by leaking his "n-word" text message into the public domain.
Secondly, the threshold of exclusion is a high one. The judge's task under CPR PD 53 para 4.1 is no more and no less than to "pre-empt perversity": see Jameel v The Wall Street Journal Europe Sprl [2004] EMLR 6. Though this issue normally arises in the context of rulings made about the meanings pleaded by the parties, it seems to me a similarly high threshold applies to the question whether words are capable of being defamatory of the claimant. The Court of Appeal therefore discourages appeals on such rulings: see Berezovsky v Forbes [2001] EWCA Civ 1251; [2001] EMLR 45.
Thirdly, the legal principles in relation to applications of this nature are well-established as the judge said, and there was little, if any, dispute between the parties as to those that applied. The judge took them for the most part from the appendix to Mr Price QC's skeleton argument produced for that hearing.
Thus, the judge referred to the frequently cited summary of the law by Sir Anthony Clarke MR in Jeynes v News Magazine Limited [2008] EWCA Civ 130 at paragraph 14, where the Master of the Rolls said:
"14. The legal principles relevant to meaning…may be summarised in this way: (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 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 way."
To this I would only add that the words "should not, select one bad meaning where other non-defamatory meanings are available" are apt to be misleading without fuller explanation. They obviously do not mean in a case such as this one, where it is open to a defendant to contend either on a capability application or indeed at trial that the words complained of are not defamatory of the claimant, that the tribunal adjudicating on the question must then select the non-defamatory meaning for which the defendant contends. Instead, those words "are part of the description of the hypothetical reasonable reader, rather than as a prescription of how such a reader should attribute meanings to words complained of as defamatory": see McAlpine v Bercow [2013] EWHC 1342 (QB) paras 63 to 66.
So much for the approach to construction. As to whether the words in the meaning they bore were defamatory, the judge said correctly that there are a number of legal definitions of 'defamatory', and directed himself by reference to what Sir Thomas Bingham MR said in Skuse v Granada Television Limited [1996] EMLR 278 at 286 where he said:
"A statement should be taken to be defamatory if it...
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