Tariq Alsaifi v Trinity Mirror Plc and Board of Directors
| Jurisdiction | England & Wales |
| Judge | The Honourable,Mr Justice Nicklin |
| Judgment Date | 26 July 2018 |
| Neutral Citation | [2018] EWHC 1954 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17M00903 |
| Date | 26 July 2018 |
[2018] EWHC 1954 (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: HQ17M00903
Appeal Ref: QB/2018/0024
The Claimant appeared in person
Kate Wilson (instructed by Ward Hadaway Solicitors) for the Defendant
Hearing date: 18 July 2018
Judgment Approved
This is the Claimant's appeal against the Order of Master McCloud of 21 December 2017 dismissing his claim and entering judgment for the Second Defendant. I granted permission to appeal on 11 April 2018. Before I turn to the decision appealed, I need to set out some of the history to the claim. As I explain below, judgment has already been entered for the First Defendant on the claim (see [7] below). The proceedings now concern only the Second Defendant.
I can gratefully adopt the description of the background and detail of the Claimant's claims from Warby J's judgment of 27 June 2017 ( [2017] EWHC 1444 (QB) [3]–[9]). The claim arises from the publication online of an article in the Newcastle Chronicle published by the First Defendant from 15 March 2016 (set out in [25]). Three slightly different versions of the article were published, following some amendments that were made at two points, but the differences in the versions are not material for present purposes. The Second Defendant was sued on the basis that it was also liable for part of the publication, having given a statement to the media part of which appeared in the final three paragraphs of the article. The article was a purported report of a decision of the National College for Teaching and Leadership (“NCTL”) given on around 29 February 2016 (“the Decision Notice”) as a result of which the Claimant was prohibited from teaching.
Subsequently, the Decision Notice of the NCTL and the order prohibiting the Claimant from teaching were quashed by the High Court: [2016] EWHC 1519 (Admin) (Andrews J) on 24 June 2016.
When the matter came before Warby J, there were two applications for determination:
i) the First Defendant sought summary judgment on the claim on the basis that the Claimant had no real prospect of rebutting a defence of reporting privilege under the Defamation Act 1996. Insofar as there was any part of the article not covered by privilege, the remainder was protected by the defence of honest opinion or should be dismissed as an abuse of process under Jameel v Dow Jones [2005] 1 QB 946 (“the Summary Judgment Application”); and
ii) the Claimant sought a ruling pursuant to CPR Part 53 PD §4.1 that the words complained of in the article were capable of bearing the defamatory meanings he had ascribed to them ([41]–[42]) against the First Defendant and [45]–[46] against the Second Defendant) (“the Meaning Application”).
The Second Defendant had not issued any application itself, but it was a respondent to the Meaning Application. It filed a skeleton argument and made submissions to the effect that the Meaning Application was pointless. The Second Defendant accepted that the comments of its spokesperson included in the article were defamatory (at common law), but, as there was no application to determine the actual meaning as a preliminary issue, any ruling limited to whether the article was capable of bearing the Claimant's meaning, “ will not limit the defences which [the Second Defendant] may advance to the claim.”
I should note here that it was no part of the Second Defendant's argument before Warby J that meaning had to be assessed in light of the decision in Curistan v Times Newspapers Ltd [2009] QB 231 (i.e. for the purposes of determining meaning, the parts of the article protected by privilege could not be treated as words complained of). The argument advanced by the Second Defendant was that it was only responsible for the publication of the last three paragraphs of the article, and the meaning had to be ascertained looking solely at those paragraphs.
In relation to the Summary Judgment Application, the Judge granted the application and dismissed the Claimant's claim against the First Defendant. The Judge found (a) that the publication of paragraphs [1]–[13] was protected by privilege as the newspaper's fair and accurate report of the NCTL's decision (minor inaccuracies and ‘tweaking’ did not displace privilege ([74])); and (b) paragraphs [14] and [16] (insofar as they conveyed any defamatory allegation) were opinion ([85]). In consequence, he found that a claim against Trinity Mirror based only on paragraph [15] of the article was Jameel abusive:
[91] I agree that the Jameel doctrine applies here, and mandates the conclusion that any residual claim must be dismissed. The question is whether it is orcould be legitimate and proportionate in all the circumstances to permit Mr Alsaifi to pursue a claim for libel against Trinity Mirror in respect of a single paragraph of the First Article, containing a quotation from Mr Lewin about how quickly Newcastle College had acted to suspend and then dismiss Mr Alsaifi three years earlier. The question must it seems to me be answered on the footing that any reader who drew a defamatory meaning about Mr Alsaifi from that single paragraph would also draw a similar, and equally serious defamatory meaning from the rest of the article, in respect of which Mr Alsaifi cannot complain. I am unable to see a basis on which paragraph [15] could be said to add materially to the overall defamatory sting of the article. Although it was not true that he had been dismissed, that error was corrected later. More importantly, the real sting of words such as these lies not in the allegation of dismissal but rather in the imputation that the claimant behaved in such a way as to justify dismissal. If that imputation was conveyed, it was conveyed in any event by the privileged report contained in the same article. (underlining added)
In relation to the Meaning Application relating to the Second Defendant, the Judge concluded:
[62] Newcastle College accepts that the words complained of against it are capable of bearing a meaning which is defamatory of Mr Alsaifi at common law…
[64] I ask myself therefore what natural and ordinary defamatory meanings could be conveyed by the words complained of against Newcastle College. Ms Wilson invites me to approach that question by reference only to the final three paragraphs of the First Article (paragraphs [14] to [16]), submitting that her client is not and cannot be held responsible for any other part of that article. The principle on which she relies is included in this passage from Economou v De Freitas [2017] EMLR 4 [17]:
“A media publication will often include some material for which the source bears responsibility and some for which he bears none. … Such additional material is likely to affect the meaning of the publication. The additional material may make things worse, in which case the source cannot be blamed; or it may make the meaning less damaging, or even innocent, in which case the claimant must take the meaning as it emerges from the entire publication. A source or contributor cannot be sued for a defamatory meaning which only arises from part of the media publication to which he has contributed: see Monks v Warwick District Council [2009] EWHC 959 (QB) [12]–[14] (Sharp J).”
[65] But I am not sure the position here is quite so straightforward, for three reasons. First, I must approach the issue on the basis that Mr Lewin knew and intended that the words complained of against the College would appear in an article on chroniclelive. He clearly must have had some notion of the context in which his statements would appear. There has been no exploration of that issue at this stage. But paragraph [16] of the First Article indicates that Mr Lewin was aware that the published item would include an account of the decision and findings of the NCTL and the Secretary of State. He was entitled to assume that such an account would be a fair and accurate one; the College cannot be held responsible for any inaccuracy or unfair “spin” which the rest of the article contained, if that was not known to it. But I do not think it would be right to examine the three paragraphs in question in blinkers, as if the rest of the article did not exist. Secondly, there is the point I have made above about the potential mitigating impact of the first blob (paragraph [17]). Thirdly, the submission overlooks paragraph [18] which appears to reflect a deliberate contribution by Newcastle College to the third version of the First Article, and one which must (on the face of things) have been made in the knowledge of its then extant version.
Having rejected the Second Defendant's submission that the meaning of should be assessed by considering only the last three paragraphs of the article, the Judge ruled (at [65]) that the words complained of against the Second Defendant were capable of bearing the meaning (“the Capable Meaning”):
“ [The Claimant] had misconducted himself by inappropriate behaviour towards a 17-year-old pupil in the ways found proved by the NCTL in its Decision Notice; that he had thereby behaved in such a way as to justify his immediate suspension, subsequent dismissal, and ultimate prohibition from teaching; and that this last outcome was a pleasing and satisfactory one.” (underlining added)
Consequent upon his ruling, the Judge made an order which contained the following:
“(2) The statement complained of in the claim against the Second Defendant is capable of bearing a meaning defamatory of the Claimant and is capable of bearing meanings that he had misconducted himself by inappropriate...
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