Sarah Thornton v Telegraph Media Group Ltd

Hearing dates: 27 January 2011

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.

Mr Justice Tugendhat :

The Defendant applies for permission to amend its Defence to a claim for malicious falsehood. The claim was issued as long ago as 16 June 2009 and has a most unfortunate history. It is the subject of the following judgments: by Sir Charles Gray given on 12 November 2009 [2009] EWHC 2863, by Sedley LJ given on 29 March 2010 [2010] EWCA Civ 510, by myself given on 16 June 2010 [2010] EWHC 1414 (QB) and again by Sedley LJ given on 14 October 2010 [2010] EWCA Civ 177.

The Claimant, Dr Thornton, is the author of a book entitled Seven Days in the Art World ("the Book"). According to the flyleaf of the Book it consists of a series of seven fly-on-the-wall narratives based on seven different days covering events in the contemporary art world. In her Particulars of Claim she describes herself as "an author, freelance writer and former full time academic, specialising in the sociology of culture and in ethnography".

The Defendant publishes The Daily Telegraph both in printed form and on its dedicated website.

The book review with which this action is concerned was published in the issue of The Daily Telegraph for 1 November 2008. The author of the review was Ms Lynn Barber, who is herself an author and journalist. She has not been joined as a Defendant in the action.

Dr Thornton complains of only part of the article, and only part of what she complains of is relevant to the application that is before me. I have italicised the part of the review which is the subject of Dr Thornton's complaint, and with which this application is concerned.

"Seven Days in the Art World by Sarah Thornton: review

Confronted with reflexive ethnographic research on the art market, Lynn Barber isn't buying

Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of "ethnographic research", which she defines as "a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds". She also claims that she practices "reflexive ethnography" which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this "copy approval" and disapprove…."

The claim is based on two separate causes of action: defamation and malicious falsehood. The proceedings so far have all related to the claim for defamation: see my judgment at paragraphs [10]-[12]. One of the three meanings attributed by Dr Thornton to the words complained of, and said to be defamatory, was:

"(6.2) That [she] had given her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice which, in the world of journalism was known as "copy approval"."

One of the defences relied on was honest comment. Sir Charles Gray struck out that defence in respect of this meaning. The Defendant applied for permission to appeal, but, following the first Judgment of Sedley LJ adjourning the permission hearing, the matter came back before me. I granted the Defendant's application for summary judgment in respect of the claim in defamation on the words set out above in italics. Paragraph [6.2] of the Particulars of Claim has therefore been struck out. The Defendant nevertheless pursued its application for permission to appeal to the Court of Appeal from the judgment of Sir Charles Gray. Mr Price argued that what Sir Charles Gray had said had an adverse impact on the defence the Defendant wished to advance to the claim in malicious falsehood. In his second judgment Sedley LJ refused permission to appeal, saying that what Sir Charles Gray had found did not determine the issue in the malicious falsehood claim.

The judgments referred to above all related to the second of the three meanings which are alleged to be defamatory. The other two meanings relied on in support of the claim in defamation are not relevant to anything which I now have to decide.

The claim in malicious falsehood is pleaded in the Particulars of Claim as follows:

"7. Further or alternatively, the said words were false in the following respects:

Particulars of falsity

7.1 The claimant did not give her interviewees the right to alter what she proposed to say about them in "Seven Days".

7.2 There was no basis on which the Claimant's practice of reflexive ethnography could fairly or properly be described as the giving of "copy approval".

7.3 The latter entails providing an interviewee with a right of veto and/or amendment in respect of proposed material prior to publication. By contrast the Claimant retained complete editorial control over the content of "Seven Days". She remained free to use or ignore any feedback that was provided to her by interviewees, entirely as she saw fit".

There follows (Particulars of Claim paragraph [8]) an allegation of malice. The Particulars of Malice incorporate the Particulars of Falsity cited above. The particulars then go on to plead that Ms Barber knew that the Claimant had not granted the right to interviewees to alter what she proposed to say about them, and knew that she (Ms Barber) had no basis for saying that Dr Thornton did do that. It is also pleaded that Ms Barber had an improper and dominant motive to vilify the Claimant.

The Defence to the claim in malicious falsehood as originally pleaded reads as follows:

"9. Paragraph [7.1] [of the Particulars of Claim] is not admitted. Paragraph [7.2] is denied. As regards paragraph [7.3], copy approval in a journalistic context involves the grant of a right to approve what is to be published about an interviewee. The second and third sentences of paragraphs [7.3] are not admitted.

10. Paragraph 8 is denied. Ms Barber believed what she wrote about the Claimant's practice of reflexive ethnography and was not motivated by any wish to vilify the Claimant.

10.1. … It is denied that Ms Barber knew the Claimant had not granted the right to interviewees to alter what she proposed to say about them and/or that she had no basis for making such a claim. There are no grounds for making such an allegation against Ms Barber. Ms Barber expressed her honest opinion about the Claimant's practice of reflexive ethnography on the basis of the material referred to in paragraph [7] [of the Defence] above…"

It is in paragraph [7] in the unamended Defence that the Defendant pleaded the defence of honest comment to the claim in defamation in respect of which I gave summary judgment in favour of the Defendant. That part of the Defence thereafter became irrelevant. It has been deleted from the draft amended Defence as a consequence of the order that I had made. However, the Defendant now applies to re-introduce much of the same material into that part of the Defence which relates to the claim in malicious falsehood.

Mr Rushbrooke accepts that to some extent that is permissible, but he opposes the application to amend in respect of other parts as irrelevant and wrong in law. He submits that if pleaded in that way in the original Defence, the passages to which he objects would have been struck out under CPR Part 3.4(2)(a) as disclosing no reasonable grounds for defending the claim. It is the test applicable under CPR Part 3.4(2)(a) that is to be applied to this application by the Defendant for permission to amend the Defence. It is therefore necessary to consider first the elements of the tort of malicious falsehood.

The elements of the cause of action in malicious falsehood are very simple: see Duncan & Neill on Defamation 3 ^rd ed paragraph [26.01]. In such a claim it is necessary for the claimant to prove:

) That the words complained of were false;

) That they were published maliciously;

) That the Claimant has thereby been caused actual pecuniary damage, or that she is exempted from doing so by the provisions of the Defamation Act 1952 s3.

The Defamation Act 1952 s3 applies if the words are published in permanent form and were calculated to cause pecuniary damage to the Claimant including in respect of her profession. That is the basis relied on by Dr Thornton.

The burden of proof of each of these three elements of the cause of action lies on the Claimant.

The part of the proposed amendment to which Mr Rushbrooke objects is the addition to what was paragraph [9] of the unamended Defence (renumbered as paragraph [7] in the draft amended version) the following words:

"For the avoidance of doubt, the Defendant will allege that the words on which the malicious falsehood claim is based ("which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this 'copy approval' and disapprove") were comment and that an honest person could express comment on the basis of the facts set out below. Accordingly, the words cannot be regarded to be false".

The "facts set out below" are the same facts as had been previously pleaded as the basis of the plea of honest comment (namely the part of the Defence which has been made irrelevant by my earlier judgment). These matters are essentially extracts from, or...