Richard Rufus (in Bankruptcy) v Paul Elliott
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 01 November 2013 |
| Neutral Citation | [2013] EWHC 3355 (QB) |
| Court | Queen's Bench Division |
| Date | 01 November 2013 |
| Docket Number | Case No: HQ13D02853 |
[2013] EWHC 3355 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Dingemans
Case No: HQ13D02853
Jonathan Barnes (instructed by Simon Smith, Solicitor) for the Claimant
David Price QC (of David Price Solicitors and Advocates) for the Defendant
Approved Judgment
Hearing date: 23 October 2013
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.
Introduction
This is a libel claim brought by Richard Rufus, a former professional footballer who now assists in community work through the Charlton Athletic Community Trust, in respect of a press release issued by Paul Elliott. Mr Elliott is also a former professional footballer, and he has had a long involvement with anti-racism initiatives in football and has been appointed a CBE for services to equality and diversity in football. Mr Elliott is a former trustee of "Kick It Out", an anti-racism campaign group supported by the Football Association ("FA").
Mr Rufus and Mr Elliott have, in the past, been friends and business colleagues. Mr Rufus claims that the press release issued by Mr Elliott was defamatory of Mr Rufus because, in the context of a previous article published in the Sun newspaper on 18 February 2013, it meant that Mr Rufus had made public a private SMS text message, in which Mr Elliott had used an extremely offensive word. This was an allegation of disloyalty and dishonourable conduct. It might be noted that Mr Rufus says that it was not him that made public the text message, but this is nothing to the legal issue before me.
Mr Elliott claims that the word that he used to Mr Rufus was so offensive that it cannot be defamatory to say that Mr Rufus made it public. Right-minded thinking members of society would commend Mr Rufus for his public spirited actions in exposing the wrongful use of the extremely offensive word, even if it had been sent in a private text message to a former friend. As appears below, it might be noted, as Mr Price QC on behalf of Mr Elliott has pointed out, the question is not whether Mr Rufus would be commended, but only whether the publication would tend to lower Mr Rufus in the estimation of right-thinking members of society generally.
Mr Rufus accepts that the word was offensive and, so Mr Barnes on behalf of Mr Rufus submitted, "toxic". Mr Rufus notes that it was Mr Elliott who used it to Mr Rufus. Mr Rufus says that Mr Elliott has added public odium and contempt to the original insult of using the word, by falsely accusing Mr Rufus of betraying a former friend by making public the private communication.
It is in these circumstances that Mr Elliott brings an application seeking: (a) a determination that the statement pleaded in paragraph 8 of the Particulars of Claim is not capable of being defamatory of Mr Rufus or bearing certain specified meanings; and (b) that the claim be struck out.
I should note that this is an application about whether the words are capable of bearing a defamatory meaning. It is not the hearing of a preliminary issue for a determination as to the actual meanings of the words. This is because the actual meanings will be a matter for trial, which may (depending on directions), be a jury trial.
The context
On 18 February 2013 Mr Elliott and Mr Rufus were the subject of an exclusive article in the Sun newspaper. The material parts of the article are set out in paragraph 5 of the Particulars of Claim. The article was headlined " A football anti-racism champion has sparked a race row after calling another black man "n*****". The article noted that Mr Elliott had written Mr Rufus a text message about a business venture which had gone wrong. The text had said " Ur a stupid man n***** … You dog, Ur history my friend".
The article noted that it was understood that Mr Elliott had insisted that the term was not offensive because of the nature of the conversation and because it was between two black men. It was noted that the row was likely to embarrass the FA.
It is common ground that the use of the word is extremely offensive and wrong.
The press release
On 23 February 2013 Mr Elliott resigned as a trustee of the "Kick it Out" campaign. He issued a press release. The press release was headed " Paul Elliott CBE resigns as Kick It Out Trustee". It continued that Mr Elliott " has released the following statement to clarify this decision: Earlier this week, a former friend and business colleague, made public a SMS text message I sent him, in which I used a term which is widely known as being derogatory to my community". The press release continued acknowledging that the use of the term was inappropriate and that use of the word sent out mixed messages and contradicted his position as a Kick It Out trustee.
The pleaded meaning
The Particulars of Claim plead at paragraph 9 that, by way of innuendo, the press release meant that Mr Rufus " 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 … and which contradicted the Defendant's role as a Kick It Out trustee, causing his resignation from it".
The Particulars of Claim pleaded the way in which the press release had been reported and picked up online comments about the articles.
Applicable legal principles
The principles to be applied on applications of this nature are well-established. They were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [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 in 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 produce 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.'"
There are a number of well-known definitions of the legal meaning of the word " defamatory". Sir Thomas Bingham MR in Skuse v Granada Television Limited [1996] EMLR 278 at 286 said:
" A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally."
It follows that it is not enough that the words should damage the Claimant in the eyes of a section of the public only, see Modi v Clarke [2011] EWCA Civ 937. Moreover, it is not in dispute that to be counted as defamatory an allegation must pass a certain threshold of seriousness: Thornton v Telegraph Media [2010] EWHC; 1414 (QB); [2010] EMLR 25 at paragraph 16. As Lord Atkin expressed it in Sim v Stretch [1936] TLR 669 at 672; [1936] 2 All ER 1237 at 1242:
" That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character and are treated as actionable wrongs."
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