Sir Elton John v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 10 October 2012 |
| Neutral Citation | [2012] EWHC 2751 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ12D02733 |
| Date | 10 October 2012 |
[2012] EWHC 2751 (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: HQ12D02733
Ronald Thwaites QC and William McCormick QC (instructed by Carter-Ruck) for the Claimant
Manuel Barca QC (instructed by Pia Sarma) for the Defendant
Hearing dates: 9 October 2012
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 MR JUSTICE TUGENDHAT Mr Justice Tugendhat This is an application by the Defendant ("TNL") for a ruling pursuant to CPR PD53 para 4.1(1) that the words complained of in this libel action are not capable of bearing the meaning attributed to them by the Claimant in his Particulars of Claim, nor any other meaning defamatory of him. If that application is successful, TNL asks for an order that the action be dismissed.
The Claimant needs no introduction as a musician and song writer. For the purposes of this action he emphasises his work as the founder and Chairman of the Elton John Aids Foundation, and the other work for music and charities for which he was awarded a CBE in 1996 and a knighthood in 1998.
The words complained of were published in the print issue of The Times dated Thursday 21 June 2012, and online. The words complained of are set out in over eight pages of the single spaced Particulars of Claim. In the print edition they appear as follows:
i) On the front page, under the heading "Screen play: how movie millions are moved offshore. Secrets of the tax avoiders" the words complained of make up the only news story, and that article is continued on page 8. Also on page 8 is a separate article under the heading "Cameron condemns 'straightforward tax avoidance'". The two articles together are the only text on page 8, but the article headed "Cameron condemns…" is relied on only as part of the context in which the words complained of appear;
ii) On pages 6 and 7, under the heading "World of glitz and glamour that's on the Revenue's radar. Secrets of the tax avoiders" the words complained of are the only text on page 6, and most of the text on page 7. The remaining text on page 7 is a related article about tax avoidance under the heading "An offer of a film role that lost its liability", but that is not pleaded in the Particulars of Claim.
iii) On page 2, under the heading "Morality, Money and Tax" there is a leader which is relied on as context, and which is referred to on page 1 ("There is no moral case for the avoidance of tax") in a box which also refers to an article published in The Times the previous Tuesday ("The Revenue goes for glitz").
The Claimant is named in three places in these articles. There is no need for me to set out all of this text in this judgment. But the passages which refer to the Claimant expressly are as follows.
On page 1 the first two of the three columns read as follows:
"Wealthy investors in tax-efficient film finance schemes are secretly moving tens of millions of pounds offshore in an abuse of tax breaks designed to support Britain's creative industries.
Seventy-five members of just one film investment scheme called Terra Nova are set to avoid £18 million in tax by moving their liabilities to Luxembourg.
Although many film schemes have attracted investments from Premier League footballers, their managers, and television personalities, this partnership was dominated by people working in the City.
S…, a hedge fund manager, invested £5.5 million in the scheme, alongside other bankers, traders and fund managers. The Labour Government introduced tax breaks for film investment in 1997. But HM Revenue and Customs believes that billions of pounds in tax revenue has been lost as the schemes are increasingly sold to high-net-worth individuals as a means of avoiding or deferring tax.
The Revenue told The Times that it had put 600 film schemes, involving thousands of wealthy and well-known people, under inquiry. "Film schemes are a £5 billion risk for us at least," one senior Revenue official said. "Someone puts in money, and then the film scheme promoter says, "We're going to lend you ten times that'… so all you do is generate tax relief and make a shedload of money for nothing."
The revelations came as David Cameron led condemnation yesterday of the comedian J… and other investors in the K2 tax avoidance scheme, exposed by The Times on Tuesday. "All those people who work hard and pay their tax and out of that save up to go and see J…, he's taking that money and stuffing it somewhere where he doesn't pay tax," the Prime Minister said. "That's not morally right." There were also calls that an OBE for G…, announced this week, ought to be reconsidered after The Times revealed that he and two other band members put tens of millions of pounds in music industry investment vehicles that act as tax shelters.
Many of the film investment schemes being investigated by the Revenue were set up by two men: Patrick McKenna, the former accountant of Sir Elton John who runs Ingenious Media and Tim Levy, founder of Future Capital Partners. Both maintain that they run commercial investments and not tax-avoidance schemes."
On page 6 the first five paragraphs reads as follows:
"To investors, they offer a glamorous and tax-efficient glimpse into a world of red carpets, champagne and stardom. Patrick McKenna, Elton John's former accountant and an adviser to the Labour Party, and Tim Levy, the founder of Future Capital Partners, are the two main providers of film investment schemes in the UK.
Since Labour introduced tax breaks for film schemes, the pair have generated hundreds of million pounds-worth of tax relief for investors, who have used their partnerships to purchase films such as X-Men: The Last Stand, Pirates of the Caribbean, The Bourne Ultimatum and Enchanted.
To the Revenue, the two men represent a threat. HM Revenue and Customs believes that film schemes have enabled investors to avoid at least £5 billion in tax. Much of that sum, the Revenue says, is attached to schemes created by Mr Levy and Mr McKenna.
In April the Revenue won a landmark victory against Mr Levy and his investment partnership Eclipse 35, as a result of which investors, including Sir Alex Ferguson, the Manchester United manager, were barred from claiming tax relief of £117 million. Now The Times has learnt that the Revenue is challenging the remaining 39 Eclipse partnerships, which have attracted £1.8 billion and contain 636 investors.
Mr McKenna, 56, founder of Ingenious Media, is also involved in a long-running Revenue inquiry into three of his partnerships. The England footballers W… and S… and the film-maker G… all poured money into McKenna film schemes."
On page 6 there are six photographs. At the bottom of the page there is a cut out head and shoulders of Mr Levy. At the top of the page there is a picture of three men in outdoor gear (about 11 x 7 cms). On the right hand side of the page there are three pictures of similar size one above the other, and a much smaller one underneath. The top picture is of some yachts. The second picture is of a team at a sporting event. The third picture is of the Claimant wearing a glitzy outfit, apparently taken some years ago. The lowest of the four pictures on that side of the page is much smaller. There are two captions.
The caption at the top of the page reads:
"Tim Levy, bottom of the page and far left, with Bear Grylls and a colleague during the North Pole expedition. Future Films, the company he co-founded, was known for its parties on yachts that overlooked the red carpet at Cannes Film Festival, right, and trips to the Rugby World Cup in 2007, below right".
The caption under the picture of the Claimant, and to the right of the lowest of the four pictures on that side of the page reads:
"Patrick McKenna, right, is the founder of Ingenious Media. He previously worked as an accountant for Elton John, above, and as chief executive of Andrew Lloyd Webber's Really Useful Group, left. He advised Robbie Williams on a record deal and also helped Simon Fuller".
Thus the Claimant is named in three separate places, and in each case he is named as one of the persons or bodies with whom Mr McKenna has been professionally associated in the past, in the Claimant's case in the capacity of an accountant. Mr McKenna is said to have been professionally associated in the past with other named individuals, in the capacity of a partner, a...
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