Sarah James v Julian Saunders
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 29 November 2019 |
| Neutral Citation | [2019] EWHC 3265 (QB) |
| Date | 29 November 2019 |
| Docket Number | Case No: QB-2018-000159 |
| Court | Queen's Bench Division |
[2019] EWHC 3265 (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: QB-2018-000159
William Bennett QC (instructed by Pattinson & Brewer) for the Claimant
Caroline Addy (instructed by Shakespeare Martineau LLP) for the Defendant
Hearing date: 19 November 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.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
This claim for libel arises from the publication by the Defendant of one tweet and four blog posts during the period from January to August 2018.
The Claimant is employed by Sandwell Metropolitan Borough Council. She is also a Facility Representative, Branch Equality Officer and National Equality Women's Lead for the GMB trade union and an active member of the Labour Party. The Defendant publishes a website known as “The Sandwell Skidder” (“the Website”).
This judgment addresses preliminary issues as to the meaning of the words complained of, whether those words are fact or opinion, whether the words are defamatory at common law and the Defendant's application for permission to amend to plead defences of honest opinion and public interest.
B. The preliminary issues
On 3 May 2019 the Claimant applied for an order that:
“1. There be a trial of preliminary issues concerning: (1) the meaning of the words complained of pleaded at §§5, 8, 11, 13 and 15; (2) whether the Claimant is defamed by the relevant publications; and (3) whether an inference is to be drawn that the publications caused serious harm to the Claimant's reputation.
2. Trial of a preliminary issue concerning whether the Claimant published the publication referred to at §5 of the Particulars of Claim (alternatively the Claimant's summary judgment application on that issue).
3. Summary judgment/strike out in favour of the Claimant in regard to the truth, qualified privilege and honest opinion defences pleaded at paragraphs 7.2, 7.3, 7.4, 11, 12, 13, 18 and 19.”
Following a Costs and Case Management Conference, Master Davison made an order dated 3 July 2019 and, by consent, gave the following directions in a further order dated 4 July 2019:
“1. Further to the Claimant's application notice of 3 May 2019, the following matters shall be adjudicated upon by a Judge of the Media and Communications List …
a) The trial of the preliminary issues concerning the meaning of the words complained of pleaded at paragraphs 5, 8, 11, 13 and 15 of the Particulars of Claim and whether the Claimant has been defamed by those publications.
b) The trial of the preliminary issue concerning whether the Defendant published the publication referred to at paragraph 5 of the Particulars of Claim.
c) If the Judge in his discretion permits it, the trial of the preliminary issue as to whether an inference is to be drawn that the publications caused serious harm to the Claimant's reputation.
d) The Claimant application for summary judgment in [her] favour in regard to whether the Defendant published the publication referred to at paragraph 5 of the Particulars of Claim (in the alternative for that matter to be tried as a preliminary issue).
e) The Claimant's application for summary judgment in [her] favour and/or the striking out of the defences of truth, qualified privilege and honest opinion set out in paragraphs 7.2, 7.3, 7.4, 11, 12, 13, 18 and 19 of the Defence.”
On 16 October 2019 the Defendant's solicitors sent a proposed Amended Defence (“the Amended Defence” or “AmD”) to the Claimant's solicitors and indicated that the Defendant would make an application to amend at the preliminary issues hearing (which was listed for 5 November and subsequently adjourned to 19 November). The Defendant's application for permission to amend the Defence was filed on 22 October 2019.
In a letter dated 24 October 2019, the Claimant's solicitors set out the extent to which the Claimant opposed or consented to the Defendant's proposed amendments. The Claimant did not consent to the amendments in respect of (i) reverse innuendo; (ii) the defences of honest opinion; and (iii) the public interest defences. Nevertheless, the letter continued:
“In reality, the test for allowing the amendments and striking out/granting summary judgment re the existing parts of the Defence to which objection is taken are the same. We therefore propose that the court proceeds by considering the case as set out in the Amended Defence. The Amended Defence will then, ultimately, consist of those parts not struck out in conjunction with those amendments which the court permits.”
The Defendant agreed with this proposal regarding the procedure to be adopted. Accordingly, I have addressed the issues by reference to the Amended Defence.
Issues (b) and (d) (see paragraph 5 above) have fallen away as the Defendant admits that he published the words complained of in paragraph 5 of the Particulars of Claim: AmD §5.1.
Accordingly, it was common ground that I should determine as preliminary issues:
i) The meanings of the words complained of in each of the publications which the Claimant contends are defamatory;
ii) Whether the words complained of are statements of opinion or of fact; and
iii) Whether the words complained of are defamatory at common law.
iv) Whether to refuse permission in respect of the amendments to the Amended Defence pleading defences of (a) honest opinion and (b) public interest, on the grounds that these defences have no real prospect of success.
The parties were in agreement that they could not usefully make submissions regarding the Defendant's defence of truth until the meanings have been determined and so I was asked not to consider the Claimant's application for summary judgment or strike out in respect of the defence of truth or the Defendant's application to amend insofar as the amendments address the defence of truth.
The parties disagreed as to whether I should make any determination regarding the issue of serious harm.
In a letter dated 4 October 2019, the Defendant's solicitors wrote:
“…we believe that the first point that should be dealt with by the Court in any preliminary assessment … logically has to be whether serious harm has been caused to your client's reputation. It seems sensible that that should be the starting point for any preliminary assessment because if no serious harm is found all other points become an irrelevance.”
The Claimant's solicitors responded by email on 10 October 2019:
“We disagree that the issue as to whether serious harm was caused could be resolved at the forthcoming hearing. At the hearing before Master Davison your client did not apply for this issue to be determined. At present the issue concerning the serious harm test is dealt with at §1(c) of the Master's order: “If the judge in his discretion permits it, the trial of the preliminary issue as to whether an inference is to be drawn that the publications caused serious harm to the Claimant's reputation.” Save for “If the judge in his discretion permits”, this wording is taken from our application notice. However, it was issued prior to the Supreme Court's decision in Lachaux v Independent Print Ltd [link given] [2019] UKSC 27, which established that serious harm was to be tried on all of the evidence, not just whether a particular allegation could as a matter of inference be said to cause serious harm or not. In the circumstances, the final issue as to whether serious harm was caused would be best left to trial.”
The Claimant's solicitors reiterated in their letter of 24 October 2019:
“ Serious harm to reputation
The application notice was drafted prior to the Supreme Court's decision in Lachaux v Independent Print Ltd [2019] UKSC 27, [2019] 3 WLR 18. The application notice is dated 3 May 2019 whereas the judgment was handed down on 12 June 2019. The Supreme Court judgment requires a different approach to the issue of serious harm, it needs to be considered on all of the evidence, therefore it is an issue best left for trial.”
I heard argument at the outset of the hearing as to whether I should make any determination regarding the issue of serious harm. Mr Bennett QC, Counsel for the Claimant, maintained that s.1 of the Defamation Act 2013 should 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 particular, she contended that the paucity of the pleaded case in respect of serious harm is such that I should strike out the Claimant's Amended Particulars of Claim (“Particulars of Claim” or “PoC”).
I decided that I would not address serious harm as a preliminary issue in this case. Whether the statements caused or are likely to cause serious harm to the reputation of the Claimant depends on more than the inherent tendency of the words. There was no evidence before me addressing the issue and so I declined to hear it as a preliminary issue. The Defendant has not made any application to strike out any part of the Particulars of Claim, which he has had since November 2018. Although the Defendant had suggested in correspondence that serious harm should be considered as a preliminary issue, there was no response to explain why, following the Supreme Court's judgment in Lachaux, that would be sensible, still less any warning that the Defendant would seek to strike out the Claimant's pleading of...
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