Robin Tilbrook v Stuart Parr
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 13 July 2012 |
| Neutral Citation | [2012] EWHC 1946 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12D00280 |
| Date | 13 July 2012 |
[2012] EWHC 1946 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ12D00280
The Claimant appeared in person
Jonathan Scherbel-Ball (instructed by Hemingways Solicitors Ltd) for the Defendant
Hearing dates: 10 July 2010
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.
This is an action for defamation and malicious falsehood commenced by a claim form issued on 25 January 2012. The Claimant is the chairman of a political party, the English Democrats. He is also a solicitor. The Defendant is sued as the author of an internet publication in the form of a blog known as "Bloggers4UKIP". As is common knowledge, UKIP stands for the United Kingdom Independence Party, which is another political party.
The words complained of were published on and after 28 November 2011 under the heading "BNP Butler joined BNP Barnbrook in the English Democrats". There then follow about a dozen lines of text. These are alleged to be untrue (the Claimant states that Mr Barnbrook has never been a member of the English Democrats), but it is not pleaded that those words of themselves are defamatory. The words that are complained of as defamatory are in the one line at the end of the text. The words complained of include:
"Eddy Butler the former National Front, former BNP, former Freedom Party, former BNP a couple more times, former BNP national elections co-ordinator has joined the English Democrats.
The announcement which was the EDP's worse kept secret since his mate Richard Barnbrook joined in January, will be a bitter blow to the handful of party activists that haven't yet joined UKIP who had hoped to stop the BNP takeover of the party…
English Democrats: not left, not right, just racist".
The Defendant has issued an application for an order that the claim be struck out, or that summary judgment be entered for the Defendant. The main issue before the court in this application is whether the words complained of are capable of being understood as referring to the Claimant. The Claimant is not named. Nor do the Particulars of Claim set out any facts relied on which might be known to any particular publishees, and no publishees are identified. The only fact set out in the Particulars of Claim relevant to the issue of whether the words complained of are capable of referring to the Claimant is the fact that he is the chairman of the English Democrats.
At the end of the argument I stated my conclusion that the words complained or are not capable of referring to the Claimant. These are the reasons for that conclusion.
The submissions of Mr Scherbel-Ball for the Defendant are as follows.
It is settled law that the words cannot be defamatory of a claimant unless they are capable of being understood by a reasonable reader as referring to the claimant. In Morgan v Odhams Press [1971] 1 WLR 1239 at 1252 D-1253F Lord Morris said at p 1253D:
"The principle was succinctly expressed by Viscount Simon LC in his speech in Knupffer v. London Express Newspaper Limited [1944] AC 116 when he said that, at p119,
'where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to".
In Knupffer the plaintiff was the representative in Great Britain of a political party of Russian émigrés known as Mlado Russ or Young Russia. The total membership was about 2000 and the membership of the British branch was twenty four. The words complained of included:
"The quislings on whom Hitler flatters himself he can build a pro-German movement within the Soviet Union are an émigré group called Mlado Russ or Young Russia. They are a minute body professing a pure Fascist ideology…"
The plaintiff relied on his own prominence or representative character in the movement as establishing that the words referred to himself (see page 120). The appeal to the House of Lords followed a trial, at which he had succeeded, and an appeal by the defendant to the Court of Appeal where the plaintiff had lost. In dismissing the plaintiff's appeal to the House of Lords Viscount Simon LC said at p122:
"In the present case the statement complained of is not made concerning a particular individual, whether named or unnamed, but concerning a group of people spread over several countries and including considerable numbers. No facts were proved in evidence which could identify the plaintiff as the person individually referred to. Witnesses called for the Appellant were asked the carefully framed question, "To whom did your" mind go when you read that article?", and they not unnaturally replied by pointing to the Appellant himself. But that is because they happened to know the Appellant as the leading member of the Society in this country, and not because there is anything in the article itself which ought to suggest even to his friends that he is referred to as an individual."
The question for the court at this stage is not whether the words complained of would be understood to refer to the Claimant, but whether they are reasonably capable of being so understood. Since the legal test as to whether words could be understood as referring to a claimant is essentially the same as the test to be applied where the question is whether the words complained of have a particular meaning, it is appropriate to set out that test. It has been most recently formulated by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paras 14 and 15, as follows, so far as is relevant to this action:
"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...
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...1239 especially at 1243, 1264, 1269–1270. See also, Islam Expo Ltd v Spectator (1828) Ltd [2010] EWHC 2011 (QB) per Tugendhat J. at [6]; Tilbrook v Parr [2012] EWHC 1946 (QB) per Tugendhat J. at [9].……. 40 For evidence on the reference issue, see generally paras 32.18–32.24, below. 41 Conso......