Richard Rufus v Paul Elliott

Hearing date: 19 March 2015

On 19 March 2015 I tried the issue of whether the words complained of by the claimant in this libel action are defamatory of him. I held that they are not. These are my reasons for reaching that conclusion.

THE CLAIM

The claimant (Mr Rufus) and the defendant (Mr Elliott) are both former professional footballers. Both have remained involved with football after their playing days. Mr Rufus now helps the Charlton Athletic Community Trust. Mr Elliott has been an anti-racism campaigner for many years, and was a trustee of the "Kick it Out" anti-racism campaign of the Football Association. He has been awarded a CBE for his work on diversity and anti-racism. Mr Rufus and Mr Elliott were at one time friends and business acquaintances, but since 2013 they have been fighting this action.

The facts alleged by Mr Rufus, which for present purposes are assumed to be true, can be shortly summarised. In December 2012 a business dispute arose between the two men. On 11 February 2013 Mr Elliott sent Mr Rufus an offensive and aggressive text message. It included these words: "Ur a stupid man nigger … You dog. Ur history my friend". On 18 February 2013 the text message became public through an article in The Sun newspaper under the headline "N-word slur by CBE ace". The sub-headline was "A football anti-racism champion has sparked a race row after calling another black man 'n*****'". The article gave details of the words used in the text message.

The fact that Mr Elliott had sent such a text message to Mr Rufus was widely reported by third party media, and on chat forums, and on Twitter, on and between Tuesday 18 and Saturday 23 February 2013.

On Saturday 23 February 2013 Mr Elliott resigned his position as a Kick It Out trustee and participated in the issue of a press release (the Press Release), which was published via the organisation's website, containing these words:-

"Today Paul Elliott CBE has resigned from his position as a Kick It Out trustee.

He 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 own 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.

I will continue to be active in other projects in what I believe to be a true and just cause.'

Kick It Out extends its thanks to Paul for the key role he has played over the past 20 years, through his distinguished unpaid work, loyalty and devotion in helping the campaign in all areas of its work. His commitment to the aims and objectives of Kick It Out has inspired others everywhere."

The Press Release, or the gist of it, was widely republished in the national news media over that weekend and the following one. In addition, there was what is described by Mr Rufus as a "social media network frenzy" during which, according to Mr Rufus's case, a number of people posted messages "falsely insinuating and implying that the claimant had made the text message public as alleged by the defendant". The posting of those messages is said to flow from the publication of the Press Release. As is clear from this quotation, which comes from his Particulars of Claim, Mr Rufus maintains that it was not he who made the text public. That, however, is not before me for decision. The only issue is whether the Press Release defamed Mr Rufus in the eyes of ordinary reasonable readers.

In late February 2013 Mr Rufus complained through solicitors of libel and in May 2013, not satisfied with the response, he issued this claim for damages. Mr Rufus's case is that a large number of those who read the Press Release will previously have read the Sun article, or third party reports of the facts it contained; these readers will therefore have identified Mr Rufus as the "former friend and business colleague" referred to in the Press Release as having made public the text message. It is accepted by Mr Elliott that for these reasons at least some readers of the Press Release will have understood it to refer to Mr Rufus.

Paragraph 8 of Mr Rufus's Particulars of Claim asserts that the Press Release was defamatory of him. Paragraph 9 pleads 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 in that it contained a term that is widely known 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".

This is quite an elaborate meaning. However, the words in the middle of it are drawn almost verbatim from the Press Release. Apart from the word "inappropriate", they are essentially descriptive. There is no real dispute that the Press Release conveyed a meaning to this effect. It is the parts of the meaning that I have italicised, and in particular the opening words, which are at the centre of the dispute between the parties.

The facts relied on in support of the innuendo are identified in paragraphs 10 and 11 of the Particulars of Claim. Paragraph 10 asserts that "The fact of the content of the Text Message and its sending by the Defendant to the Claimant" had been published in The Sun. Paragraph 11 pleads that "The fact of the content of the Text Message and the identity of the Defendant as its sender and the Claimant as its recipient were widely reported by third parties" in the media, chat forums and Twitter. No other features of the reporting by The Sun, or others, are relied on in support of the innuendo.

THE ISSUE

The parties agreed that the issue for my decision was whether the Press Release was defamatory of Mr Rufus. They disagreed, however, on the approach I should take to deciding the issue. To set that disagreement in its context it is appropriate briefly to describe and explain the slightly circuitous route by which the issue came before me.

On 23 October 2013 Dingemans J heard an application by Mr Elliott for rulings that the words complained of were not capable of being defamatory of Mr Rufus, or of meaning that he acted dishonourably, betrayed Mr Elliott or deliberately harmed his reputation, and for an order striking out the claim. The application, made under 53PD 4.1, took the form it did because at that time the law was that issues of fact arising in an action for libel had to be tried by jury, unless certain specified exceptions applied, provided that a timely application for jury trial was made: see Senior Courts Act 1981, s 69; CPR 26.11 (in its then form); and Thornton v Telegraph Media Group Ltd [2011] EWCA Civ 748, [2011] EMLR 29. Where a case would or might be tried by jury a judge could only decide the threshold question of whether a jury could reasonably find the words to be defamatory or to bear a pleaded meaning. Mr Elliott had wanted the actual meaning to be determined at that stage, but Mr Rufus would not agree. It is hard to see how any of the statutory exceptions to the presumption in favour of jury trial could ever have applied in this case.

On 1 November 2013 Dingemans J gave judgment, holding that the words were capable of defaming Mr Rufus, and dismissed the application: [2013] EWHC 3355 (QB). The Judge highlighted at [6] that his decision was no more than a threshold ruling, saying: "I should point out 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. That is because the actual meanings will be a matter for trial, which may (depending on directions), be a jury trial."

Permission to appeal against Dingemans J's decision was refused by him, and by Sedley LJ on paper, but the application was renewed, and granted by Maurice Kay LJ V-P and Rafferty LJ after an oral hearing. On 20 February 2015 however the Court of Appeal (McCombe and Sharp LJJ and Mitting J) dismissed the appeal: [2015] EWCA Civ 121. The judgment of Sharp LJ, with whom the other members of the court agreed, emphasised the "narrow compass" of the argument before the Judge, identifying as one good reason for that the fact that "the threshold of exclusion is a high one. The judge's task under 53PD 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.": [8]. This point was reflected at [25] where Sharp LJ gave this reason for dismissing the appeal: "It is possible (and no more) that those who read the Press Release thought both that the defendant should not have said what he did but the worse of the claimant for having made what was essentially a private row public, given the circumstances."

The Court ordered that there should be a preliminary "trial of actual meaning" before a judge on the first available date. It had been asked to, but was not able to decide actual meaning itself, as that is a fact-finding exercise outside its province: see [27]. The court was able to direct that the issue should be tried by a judge without a jury because by that stage Mr...