Simpson (Claimant/ Respondent) v Mirror Group Newspapers Ltd (Defendant/ Appellant)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lady Justice King,Lord Justice Lindblom |
| Judgment Date | 26 July 2016 |
| Neutral Citation | [2016] EWCA Civ 772 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2015/0357 |
| Date | 26 July 2016 |
[2016] EWCA Civ 772
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The High Court, Queen's Bench Division
Mr Justice Warby
HQ13D05513
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lady Justice King
and
Lord Justice Lindblom
Case No: A2/2015/0357
Adam Wolanski (instructed by Simons Muirhead & Burton) for the Appellant
Manuel Barca QC and Aidan Eardley (instructed by Lewis Silkin LLP) for the Respondent
Hearing date: 24 May 2016
Approved Judgment
INTRODUCTION
This is an appeal, with permission granted by Christopher Clarke LJ on 18 May 2015, against part of the order made by Warby J on 21 January 2015 in a libel action brought by the respondent to the appeal against the appellant. It will make for clarity if I refer to the appellant as MGN and the respondent as the claimant. MGN are the publishers of the Daily Mirror. The claimant is a Premier League footballer.
The claim arose out of an article published in the Daily Mirror on 16 November 2012 and (with minor variations) on MGN's website from that date onwards. The article concerns three people: the claimant Mr Simpson, Ms Ward, with whom the claimant had had a relationship for several years and who was the mother of his child, and Ms Contostavlos, a celebrity with whom the claimant also had a relationship, between November 2012 and May 2013.
The claim was issued one day before expiry of the limitation period. On 19 January 2015 Warby J determined as a preliminary issue the meaning of the words complained of, and struck out MGN's defence of justification as disclosing no reasonable grounds for defending the claim.
MGN sought permission to appeal against the Judge's determination of meaning and his order striking out the defence. Christopher Clarke LJ granted permission only in relation to the latter. MGN do not renew their application in relation to the former. So the court is only concerned with the strikeout.
The claim predates the coming into force of the Defamation Act 2013, which abolished the presumption of trial by jury in libel actions; although in fact the parties have agreed to trial by Judge alone. Since the case falls to be tried under the law as it was before 2013, the relevant defence is the common law defence of justification, rather than the new statutory defence of "truth".
THE ARTICLE'S MEANING AND THE PLEA OF JUSTIFICATION
As there is no appeal against the Judge's conclusion on meaning, I need not set out the terms of the article. The meaning found by the Judge is as follows (judgment, paragraph 24):
"By entering a romantic relationship with the celebrity Tulisa Contostavlos the claimant was unfaithful to his loyal partner Stephanie Ward, with whom he was in a long-term and committed relationship, living with their daughter as a family; he did so despite Ms Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child; and by doing so he callously destroyed his relationship with Ms Ward and broke up an established family unit which was soon to be joined by the child they were expecting."
In concluding as he did on meaning, the Judge took something of a middle way between the contentions respectively advanced by the parties. Thus he rejected the claimant's submission that the article implied that his relationship with Ms Ward was "stable" and the family unit was "secure". He stated that "the claimant would appear to the ordinary reader to be someone who had indulged in infidelity on several previous occasions" (judgment paragraph 23). However he accepted the claimant's argument, contested by MGN, that "the reader would understand that he had remained in a committed long-term relationship, living as a family with a loyal partner and their child, which he had broken up by his latest infidelity" (also paragraph 23).
Turning to the claimant's application to strike out the defence of justification, the Judge summarised the effect of the draft amended particulars of justification in paragraphs 34–35 of his judgment as follows:
"34. … [T]he couple met in 2006 and had an intermittent relationship for the next four years, during which she obtained a law degree and worked at a solicitors' firm. They began a committed relationship in June 2010, and Ms Ward 'did not continue with her legal career'. They lived together in a house in Newcastle from late 2010 until the birth of their daughter in July 2011 and thereafter – with a break from the end of 2011 into early 2012 – until about April 2012. At that time, Ms Ward moved with their daughter into a house in Manchester owned by the claimant, whilst he lived in Newcastle. The family is not said to have lived together at any time between April 2012 and the publication of the article seven months later.
35. It is also said that during that period there were frequent visits by Ms Ward to Newcastle and two holidays together, one with their daughter. It is alleged that they had a continuing though evidently intermittent sexual relationship, including a night together on 4 November 2012, and that Ms Ward was sexually faithful to the claimant, and thus loyal. The defendant's case is that the couple eventually resumed their relationship in July 2013 and moved back in together in January 2014. This is all well after publication, but is relied on as an indication of the committed and long-term nature of the relationship generally. Although the Defence does not seek to justify the epithet 'callous' I do not see that as a difference that would necessarily be held material at a trial."
Mr Wolanski for MGN submitted, correctly, that this summary does not encapsulate the whole of MGN's plea of justification. But it shows the essence of it, and in particular, as it seems to me, confronts the fact that the alleged libel concerns a committed family.
THE JUDGE'S CONCLUSION
The Judge addressed the application to strike out the defence of justification at paragraphs 36–37 as follows:
"36. At this stage of the case I have to make allowance for the fact that I am addressing a pleaded case and not evidence. Even so, the account of events contained in the draft amended particulars remains in my judgment clearly and significantly different from that which emerges from the article. It is conspicuously not alleged that Ms Ward gave up her legal career for the sake of having children with the claimant, let alone that the claimant knew this. More importantly, the particulars of justification nowhere allege, nor could the facts there set out support findings, that the...
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