Steve Morgan CBE v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | The Honourable,Mr Justice Nicklin |
| Judgment Date | 06 July 2018 |
| Neutral Citation | [2018] EWHC 1725 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17M03875 |
| Date | 06 July 2018 |
[2018] EWHC 1725 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Nicklin
Case No: HQ17M03875
Justin Rushbrooke QC and Felicity McMahon (instructed by Himsworth Legal Ltd) for the Claimant
Catrin Evans QC and Sarah Palin (instructed by Wiggin LLP) for the Defendant
Hearing date: 28 June 2018
Judgment Approved
This is a claim for libel brought by Steve Morgan CBE against Associated Newspapers Limited, the publishers of the Daily Mail, over an article that appeared in the print edition and (with some minor differences) also online on 24 August 2017 under the headline: “ Building tycoons using staff discounts to snap up homes meant for families” (“the Article”).
On 28 June 2018, I heard and determined two preliminary issues in this libel claim: (1) the meaning of the Article; and (2) whether the allegations made were fact or opinion. I gave an extempore judgment dealing with those two matters.
I found the meaning to be as follows
i) the Claimant was able to take advantage of an opportunity to purchase six houses built by his company that were intended to be sold for less-well off buyers as affordable homes – but which had failed to sell — after his company had been successful in getting local authority planning rules changed;
ii) he purchased the six properties at a substantial discount, £860,000 against a market value of £2.1m and, as a result, stood to make a very large personal gain; and
iii) in consequence, the Claimant had exploited his position to line his own pockets in a greedy, unethical and morally unacceptable way.
As to fact/opinion, I was satisfied that elements (i) and (ii) were factual in nature and not themselves defamatory. I found element (iii) to be an expression of opinion based on the conduct of the Claimant in (i) and (ii). Overall, I am quite satisfied that the Article is defamatory of the Claimant at common law as the Defendant has admitted (see [8] below).
Serious Harm
Included within the order of 19 June 2018 directing trial of the above preliminary issues was a direction that the Court should, at the same time, determine the issues of whether the meaning found by the Court conveyed a serious defamatory imputation pursuant to s.1 Defamation Act 2013. 1 Ordinarily, it would be a routine matter to deal with that issue at the same time as ruling on other preliminary issues relating to meaning. Indeed, I would have dealt with it when ruling on the other issues.
In this case, however, the issue is complicated, somewhat, by the fact that in its Defence dated 9 March 2018, the Defendant had admitted “ that the statements complained of meet the threshold in s.1(1) of the 2013 Act as defined inLachaux v Independent Print Ltd.” The reference to Lachaux is to the Court of Appeal's decision ( [2018] QB 594) in which Davis LJ, summarising the decision of the Court, said [82(3)]:
“If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.
Warby J explained the general principles applying to determinations of serious harm (and how they interrelate with the common law test of what is defamatory) in Sube v News Group Newspapers [2018] EWHC 1234:
[23] … The starting point is the common law principle that a meaning is defamatory of the claimant if it “ [substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency to do so”: Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985 [96] (Tugendhat J). This is the common law “ threshold of seriousness”, which
requires a “ tendency” to affect adversely the attitudes of others towards the claimant, to a “ substantial” extent.[24] Section 1(1) of the Defamation Act 2013 has raised the bar. It provides that a statement “ is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” The words “ is likely to cause”, as used in this subsection, “ are to be taken as connoting a tendency to cause”: Lachaux [50] (Davis LJ) (my emphasis). The effect of the subsection is to give “ statutory status toThornton, albeit also raising the threshold from one of substantiality to one of seriousness …”: [82(1)].
[25] The approach to be adopted by the Court is explained in Lachaux:
[69] … If the meaning … established … does not convey a serious defamatory imputation then the claim may, by reason of s.1(1), be vulnerable to being struck out without more ado.
[70] If, on the other hand, the meaning so established conveys a serious defamatory imputation … then an inference of serious reputational harm ordinarily can and should be drawn accordingly…
[73] … at a meaning hearing … [t]he seriousness of the reputational harm is … evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used (for example, in a newspaper article or widely accessed blog)…
[79] Whether in any given case the imputation is of sufficient gravity as of itself to connote serious reputational harm … should therefore normally be capable … of being relatively speedily assessed at the meaning hearing.
By its admission in the Defence, the Defendant originally accepted that an inference of serious harm could be drawn in accordance with the underlined passages above from Lachaux. The Defence also admitted that the Article was defamatory of the Claimant at common law.
In my judgment on the preliminary issues of meaning and fact/opinion, I had already expressed my doubt as to the wisdom of filing a substantive defence when the dispute as to meaning was unresolved. I said:
[8] … this is the second case that I have seen in a month in which a defence has been filed, with fully pleaded defences, before the Court has been asked to determine meaning.
[9] One of the great advantages of the removal of trial by jury in defamation cases is the opportunity it presents for greater case management of defamation claims. Previously, disputed issues of fact (that could not be disposed of under Part 24) had to be left to trial to be determined by the jury. Unless the parties agreed, that effectively prevented the Court ruling on the actual meaning of the words complained of. In consequence, it was quite common to have defamation actions where the parties advanced rival contentions as to the actual meaning of the words. Defences were pleaded upon the defendant's contention as to what the words might be found to mean. That could potentially be hugely wasteful of costs. If the defendant sought to defend meaning X as true, but the jury found it meant Y and that the defendant's defence of truth in consequence failed, litigation of whether X was true is rendered largely (if not completely) pointless.
[10] Now, the natural and ordinary meaning of the words complained of in a defamation claim can be determined, in most cases, as soon as the Particulars of Claim have been served. No evidence, beyond the words complained of is admissible, so the hearing can be accommodated, as this one was, in a couple of hours. It is potentially hugely wasteful of costs for a defendant to plead a full defence if meaning is in dispute. Following the court's ruling on meaning, the defence may no longer be viable, or it may require amendment in light of the Court's ruling. I asked the parties whether they could identify an advantage that they could see in having a fully pleaded defence before the court determines meaning. Neither was able to advance a clear or cogent reason for doing so. It is not my place to issue practice directions, but consistent with the overriding objective the parties must consider whether the expense of a defence is justified before the Court has ruled on meaning, if meaning is disputed. Active case management includes, under CPR 1.4(2), identifying issues at an early stage: deciding promptly which issues need full investigation and trial and accordingly disposing summarily of others; and deciding the order in which issues are to be resolved. Under CPR 1.3, the parties are required to help the court to further the overriding objective. The overriding objective is to deal with cases justly and at proportionate cost. All of those point, clearly, to disputes as to meaning being disposed of as a preliminary issue sooner rather than later (see also Warby J in Yeo v Times Newspapers Ltd [2015] 1 WLR 971 [69]–[70]).
In this case, some of the potential pitfalls of pleading a defence before the dispute as to meaning is resolved have become apparent.
In light of (1) the decision in Sube and (2) the meaning determined by the Court ([3] above), the Defendant now wishes to contend that “ the statements complained of” do not convey a serious defamatory imputation about the Claimant. The effect of this submission, if it were upheld, would mean that “serious harm” would remain a live issue. If the Claimant is unable to rely upon the inference of serious harm, he would need to prove that the Article, in the wording of s.1(1), “ has caused” serious harm to his reputation. That would be a matter of evidence at trial.
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