The Lord Mcalpine of West Green v Sally Bercow
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 25 April 2013 |
| Neutral Citation | [2013] EWHC 981 (QB) |
| Docket Number | Case No: HQ12D05281 |
| Court | Queen's Bench Division |
| Date | 25 April 2013 |
[2013] EWHC 981 (QB)
The Honourable Mr Justice Tugendhat
Case No: HQ12D05281
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Edward Garnier QC & Kate Wilson (instructed by RMPI) for the Claimant
William McCormick QC & David Mitchell (instructed by Carter Ruck) for the Defendant
Hearing dates: 16 April 2013
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.
In this libel action the Claimant applied by notice issued on 7 March 2013 for an order that the question of meaning be determined by a judge as a preliminary issue. Such applications have become increasingly common in recent years and, so far as the court and counsel are aware, there has not previously been a report of a contested application, although since the hearing I handed down my reasons for not ruling on actual meaning in Hamaizia v Commissioner for Police of the Metropolis [2013] EWHC 848 (QB). In other cases the parties have in effect agreed, either that there should, or that there should not, be the trial of such a preliminary issue. In many libel actions there is little difference between the parties as to what the words complained of actually mean.
At the end of the submissions I announced that I would grant the Claimant's application for the trial of a preliminary issue on the actual meaning of the words complained of, and give my reasons later. They are these.
In Gatley on Libel and Slander 11 th edition (2008) the editors wrote:
"32.9 Meaning and preliminary issue. A number of issues on meaning have recently been determined on applications for the trial of preliminary issue, rather than for a ruling under CPR PD 53 para 4(1). On the hearing of a preliminary issue, the judge is determining the actual single meaning of the words, not delimiting the meanings which the words are capable of bearing…"
In such cases, as in the present case, neither party applied for a trial with a jury. The cases cited in the footnote to Gatley are Charman v. Orion Publishing Group Limited [2005] EWHC 2187 (QB); Armstrong v. Times Newspapers Limited [2006] EWHC 1614 (QB) and Curistan v. Times Newspapers Limited [2008] EWCA Civ 432; [2008] 3 All ER 923.
In the supplement issued as at October 2010 there is the following addition to that footnote.
"For recent examples of this jurisdiction being exercised, see Bond v. BBC [2009] EWHC 539 (QB); British Chiropractic Association v. Singh [2009] EWHC 1101 (QB) in which Eady J.'s ruling on meaning was found by the Court of Appeal to have been in error: [2010] EWCA Civ 350; [2011] E.M.L.R. 1; and Horlick v. Associated Newspapers Ltd [2010] EWHC 1544 (QB). ….
If the presumption of jury trial in defamation proceedings is reversed (as was contemplated in cll.14 and 15 of the Defamation Bill [HL] 2010–2011), it is quite conceivable that interim judicial rulings on meaning where meaning is in dispute and on issues of fact or opinion (as to which see further below) – given the narrowing of the issues between the parties (with consequent savings in costs such rulings are apt to produce – will become a standard feature of defamation litigation."
More recent similar cases include: Cook v Telegraph Media Group Ltd [2011] EWHC 1134 (QB) (myself); Miller v Associated Newspapers Ltd [2011] EWHC 2677 (QB) (myself) Auladin v Shaikh [2013] EWHC 157 (QB) (Eady J); Waterson v Lloyd MP [2013] EWCA Civ 136.
THE COURSE OF THE LITIGATION
The claim form was issued on 7 December 2012. The Claimant claims damages in respect of a publication on Twitter alleged to have been made to a substantial but unquantifiable number of users of that service on or around 4 November 2012.
The Particulars of Claim include the following statements, all of which are admitted in the Defence which was served on 21 December 2012:
"1. The Claimant is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. He was a close aide to Margaret Thatcher during her time as Prime Minister. As a result of his positions and his work with the Conservative Party, he had a significant political profile during the late 1970s and the late 1980s. He was a life peer in 1984. He retired from working for Conservative Party Central Office in 1990 and since 2002 has lived in Southern Italy out of the public eye.
2. The Defendant has a high public and media profile. She has appeared on television on a number of occasions, including in 2011 as a contestant in the reality show 'Celebrity Big Brother'. The Defendant …. is the wife of the Speaker of the House of Commons. The Defendant has a high profile Twitter account and tweets regularly. At the material time, she had approximately 56,400 followers on Twitter.
3. On the evening of 2 November 2012, the BBC's current affairs programme Newsnight broadcast a report which made serious allegations against 'a leading Conservative politician from the Thatcher years'. The programme alleged that this politician was guilty of sexually abusing boys living at the Bryn Estyn care home in Wales in the 1970s and 1980s. Newsnight did not name the politician and, towards the end of the report, the presenter said it did not have enough evidence 'to name names'.
4. The Newsnight report itself and its contents immediately became a prominent news story. Between 2 and 4 November, online and traditional media widely reported on, and repeated, Newsnight's allegations. That coverage included, but was not limited to the following articles:
The Guardian on 3 November 'man claims he was sexually abused by Tory politician; www.telegraph.co.uk on 3 November, BBC's Newsnight airs claims of child abuse against 'leading Tory politician'. A senior Conservative Politician has been accused by the BBC's current affairs programme Newsnight of abusing under aged boys at a children's home in North Wales'; The Sunday Telegraph for 4 November and www.telegraph.co.uk 'senior Tory's accused over child abuse'; Mail online on 4 November, 'Tory rapist told me he'd kill me if I told the police'."
In his Particulars of Claim the Claimant pleads in para 5:
"On 4 November 2012, the Defendant tweeted and thereby published or caused to be published to her Twitter followers the following words defamatory of the Claimant ('the Tweet').
'Why is Lord McAlpine trending? *Innocent face*".
In relation to that, in paragraph 4 of her Defence, the Defendant pleads:
"Save that it is admitted that the Defendant published ('by tweeting') the words therein set out ('the words complained of'), paragraph 5 of the Particulars of Claim is denied".
In the Particulars of Claim paragraph 6 there is pleaded:
"6.1. Paragraphs 1, 3 and 4 above are repeated.
6.2. Twitter's homepage identifies topics or people which/who are 'trending' on the social media website at that particular time. A subject or person will 'trend' because it or he is being mentioned a substantial number of times and there is a material change in how frequently that subject or person is being mentioned. Something or someone will trend when it or he is breaking news on Twitter.
6.3. In the past, Twitter users have used Twitter to identify alleged wrongdoers and others whom the traditional media have not identified when reporting on a story. This has included, but is not limited to, the campaign by some Twitter users in 2011 to identify the footballer Ryan Giggs as the person who had obtained an injunction to prevent the disclosure of his extra-marital affair and an anonymity order protecting his identity in relation to that affair. Twitter users tweeted numerous unsubtle tweets about Mr Giggs and made concerted efforts to get his name trending.
6.4. After the Newsnight report referred to in paragraph 3 above, there was criticism by some Twitter users of the BBC's decision not to 'name names'.
6.5. The above facts and matters or a sufficient number of them would have been known to a substantial but unquantifiable number of unidentifiable readers of the Tweet and, in the premises, those publishees would have understood the words complained of to bear the meaning set out in paragraph 6 above."
In response to paragraph 6 of the Particulars of Claim the Defendant pleads in paragraph 5 of her Defence as follows:
"It is denied that the words complained of bore or were understood to bear the meaning set out at paragraph 6 of the Particulars of Claim, whether in their natural and ordinary meaning or by way of the innuendo meaning pleaded. It is specifically denied that the matters set out at paragraphs 6.1–6.4 of the Particulars of Claim, even if known to a reader of the words complained of would give rise to the innuendo meaning pleaded".
In paragraph 7 of the Particulars of Claim the Claimant pleads:
"As a result of the publication of the words complained of the Claimant's reputation was seriously damaged and he was caused considerable distress and embarrassment".
In response to that, in paragraph 6 of her Defence, the Defendant pleads:
"Paragraph 7 is denied. For the avoidance of doubt, the Defendant does not deny that the Claimant was distressed or embarrassed by the words complained of; she denies that they were defamatory of him and hence such distress as he suffered is not compensatable at law".
So the Defendant is not saying that the Claimant was the man referred in the allegation made in Newsnight and elsewhere. It is accepted by all concerned that the Claimant has nothing to do with that or any similar allegation.
In solicitors' correspondence the Claimant complained that the Defendant had not pleaded to the facts and...
To continue reading
Request your trial
-
Louisa Donovan v Kate Gibbons
...20 However, the second Jeynes principle does not mean that the court must always choose the least defamatory meaning available: see McAlpine v Bercow [2014] EMLR 3 at [66], where Tugendhat J explained that if there are two possible meanings, one less derogatory than the other, whether it is......
-
Young v Television New Zealand Ltd
...v Wakeling [2007] 1 NZLR 841 (HC). 37 Gatley (12th ed), above n 8, at [30.14] citing Bercow v Lord McAlpine of West Green (No 1) [2013] EWHC 981 (QB) at ...
-
Clarke v Fourth Estate Holdings (2012) Ltd
...Zealand Ltd, above n 13, at [73]–[74]. Mullis and Parkes, above n 15, at [30.14], citing Bercow v Lord McAlpine of West Green (No 1) [2013] EWHC 981 (QB) at stage of the proceeding. Doing so would enable the defendants to decide how to plead their affirmative defences. In particular, Ms O’G......
-
Young v Television New Zealand Limited CA738/2012
...Zealand v Wakeling [2007] 1 NZLR 841 (HC). Gatley (12th ed), above n 8, at [30.14] citing Bercow v Lord McAlpine of West Green (No 1) [2013] EWHC 981 (QB) at … in very many libel actions, furthering the overriding objective requires that the actual meaning of words complained of be determin......