Robert Ager v Career Development Finance Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn |
| Judgment Date | 25 October 2019 |
| Neutral Citation | [2019] EWHC 2830 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17M04246 |
| Date | 25 October 2019 |
[2019] EWHC 2830 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: HQ17M04246
Victoria Jolliffe (instructed by Guy Williams Layton LLP) for the Claimant
Timothy Atkinson (instructed by Taylor Walton LLP) for the Defendant
Hearing date: 15 October 2019
Approved Judgment
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.
A. Introduction
This claim for libel and harassment arises from the publication of a 43-page booklet (“the Booklet”). The Booklet was sent in December 2016, under cover of a letter, by Career Development Finance Ltd (“CDF Ltd”, the First Defendant) to William Logan.
The Claimant, Robert Ager, is an independent film maker and former Chair of the Liverpool branch of the UK Independence Party. In 2007, Mr Ager enrolled on a course with Metropolitan International Schools Ltd (“MIS Ltd”, the Second Defendant), via its “SkillsTrain” brand. He subsequently sought and obtained a refund for the course. In 2012, MIS Ltd brought proceedings for libel against Mr Ager, in respect of his online account regarding his dealings with MIS Ltd. Those proceedings were discontinued after service of the defence.
CDF Ltd provided loans in relation to MIS Ltd's educational courses. Jan Telensky (“the Third Defendant”) was, until January 2017, a Director of CDF Ltd and Mr Ager contends that he was closely associated with MIS Ltd.
The question ‘who compiled the Booklet?’ is for another day. This judgment addresses preliminary issues as to the meaning of the words complained of, whether those words are fact or opinion, and whether the words are defamatory at common law.
B. The preliminary issues
The Claim Form was issued on 23 November 2017 and Particulars of Claim were served on 15 March 2018. The Defence was served on 5 June 2018. The Reply was served on 20 July 2018.
On 8 January 2019, with the agreement of the parties, Master Eastman ordered that there be a trial of the following preliminary issues:
“(a) the actual meanings of the words complained of;
(b) whether the words complained of, in the meanings found by the Court, are fact or opinion; and
(c) whether the words complained of, in the meanings found by the Court, convey any serious defamatory imputation or imputations concerning the Claimant.”
The order further stated: “ For the avoidance of doubt, the preliminary issues do not include the determination of the issue of serious harm.”
The question whether the words convey serious defamatory imputation(s) was framed in the light of the Court of Appeal's judgment in Lachaux v Independent Print Ltd [2017] EWCA Civ 1334, [2018] QB 594. I raised with the parties at the outset of the hearing whether I should determine the third preliminary issue, having regard to the judgment given by the Supreme Court in Lachaux on 12 June 2019: Lachaux v Independent Print Ltd [2019] UKSC 27, [2019] 3 WLR 18.
At common law, a statement is defamatory of the claimant if, but only if (a) it imputes conduct which would tend to lower the claimant in the estimation of right-thinking people generally, and (b) the imputation substantially affects in an adverse manner the attitude of other people towards him, or has a tendency to do so: see Lachaux at [6]–[9], citing Sim v Stretch [1936] 2 All ER 1237, per Lord Atkin at 1240 and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985, per Tugendhat J at [96].
Section 1(1) of the Defamation Act 2013 provides: “ A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”. The effect of s.1 of the Defamation Act 2013 is that “ the defamatory character of the statement no longer depends only on the meaning of the words and their inherent tendency to damage the claimant's reputation”: Lachaux, per Lord Sumption at [17].
Lord Sumption (giving the sole judgment) explained in Lachaux at [14]:
“…section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm.”
When I raised the issue, Ms Jolliffe, Counsel for the claimant, suggested that it may be better to limit my determination to whether the words are defamatory at common law. Mr Atkinson, Counsel for the Defendant, agreed to that proposal. It seemed to me that it would be sensible to limit the issue in that way, as it will be a matter for the judge who determines whether the words are defamatory within the meaning of s.1 of the Defamation Act 2013 to consider how serious the inherent tendency of the words is in combination with any evidence as to historic or probable future harm.
Accordingly, I amended the third preliminary issue to read:
“(c) whether the words complained of, in the meanings found by the Court, convey any imputation (or imputations) concerning the Claimant which is (or are) defamatory at common law.”
C. Preliminary issue (a): Meanings
Meaning: The Law
There was no disagreement between the parties as to the applicable principles regarding the determination of the natural and ordinary meanings of the words complained of. My attention was drawn to recent summaries of the principles in Stocker v Stocker [2019] UKSC 17, [2019] 2 WLR 1033, per Lord Kerr of Tonaghmore JSC at [33] to [40]; Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529, [2018] 4 WLR 13, at [11] to [16]; Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB), per Nicklin J at [10] to [15]; and Allen v Times Newspapers Ltd [2019] EWHC 1235 (QB), per Warby J at [12]–[18].
The Court's task is to determine the single natural and ordinary meaning of the words complained of. It is well recognised that there is an artificiality in choosing a single meaning from a series of words that individual readers may understand in different ways, but this approach is well-established and it provides a practicable, workable solution: see Stocker v Stocker at [33]–[34].
The focus is on what the ordinary reasonable reader would consider the words to mean. That is the touchstone. It is the “ court's duty to step aside from a lawyerly analysis”: see Stocker v Stocker at [37] to [38].
The key principles derived from the authorities were helpfully distilled and re-stated by Nicklin J in Koutsogiannis at [12]:
“i) The governing principle is reasonableness.
ii) The intention of the publisher is irrelevant.
iii) 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. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
viii) The publication must be read as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
xii) Judges should have regard to the impression the article has made...
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...be considered by reference to the totality of evidence at trial, citing the approach I took in Ager v Career Development Finance Ltd [2019] EWHC 2830 (QB) at [10] to [12]. Miss Addy, Counsel for the Defendant, submitted that serious harm should be considered as a preliminary issue. In part......