Tim Yeo MP v Times Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 04 February 2015 |
| Neutral Citation | [2015] EWHC 209 (QB) |
| Docket Number | Case No: HQ14D01146 |
| Court | Queen's Bench Division |
| Date | 04 February 2015 |
[2015] EWHC 209 (QB)
Mr Justice Warby
Case No: HQ14D01146
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Desmond Browne QC and Victoria Jolliffe (instructed by Carter-Ruck Solicitors) for the Claimant
Gavin Millar QC (instructed by RPC) for the Defendant
Hearing date: 26 January 2015
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.
1. The claimant ("Mr Yeo") is an MP. He sues Times Newspapers Limited ("TNL") for libel in articles published in hard copy on the front page and on pages 6–7 of The Sunday Times for 9 June 2013, and a further article published two weeks later on 23 June 2013. All three articles have also been published on TNL's website, with some modifications, since June 2013.
2. The general subject-matter of the articles is indicated by the front page headline of 9 June 2013: "Top Tory in new Lobbygate row". The articles followed undercover investigation by two journalists from TNL's "Insight" team, posing as representatives of a consultancy ("CGG") to a Far Eastern solar company. The articles were largely though not exclusively based on exchanges between the journalists and Mr Yeo over a lunch on 21 May 2013, which was covertly filmed.
3. This is the second case management conference ("CMC"), and the first costs management conference. After the first CMC, in a judgment handed down on 20 August 2014 ( [2014] EWHC 2853 (QB)), I ruled against an application by TNL for trial by jury and determined as preliminary issues what defamatory meanings the articles complained of bore, and whether those meanings were factual or comment. I found that the articles of 9 June 2013 bore two defamatory meanings, one factual and the other exclusively comment. I found that the article of 23 June 2013 bore a single defamatory factual meaning.
4. Because these meanings were different from those complained of by Mr Yeo, and different from those which were then defended by TNL as true or fair comment, I gave Mr Yeo permission to amend the Particulars of Claim to complain of the meanings I had found the articles to bear, and struck out TNL's defences of justification and fair comment, as they were then pleaded. 1
5. Mr Yeo having amended his Particulars of Claim TNL re-pleaded its Defence so as to justify the defamatory factual meanings of both articles, and to defend as fair comment the defamatory comment contained in the articles of 9 June 2013. The Amended Defence also retains in their original form defences of Reynolds privilege, asserting that the articles were "on a subject of strong public interest, were responsibly published and were expression protected by Article 10.1 of the Convention".
6. On 3 October 2014 Mr Yeo served a Reply. This addresses in some detail the particulars relied on in support of justification, fair comment, and Reynolds privilege, and further alleges that the words complained of were published maliciously.
7. Two issues arise for decision:-
i) Whether Mr Yeo's plea of malice should be struck out.
ii) To what extent the parties' costs budgets should be approved.
The plea of malice
8. TNL's attack on Mr Yeo's pleaded case of malice is double-barrelled. One criticism is that the malice plea, as it stands, is equally consistent with the absence of malice as with its presence and is therefore non-compliant with well-established pleading principles and falls foul of the Part 53 Practice Direction.
9. TNL's other criticism is that the plea is misdirected. It fails to make the only relevant allegation, namely that someone for whose conduct TNL is responsible published the defamatory comment without an honest belief in it. Instead, it alleges that the journalists did not believe in the truth of the narrow factual allegation contained in the articles of 9 June 2013, which is not a sufficient basis for alleging malice.
10. To assess these points it is convenient to begin by examining the plea of malice in its context within the statements of case overall. In relation to the articles of 9 June 2013, the Defence pleads the defences of justification, fair comment and Reynolds in that order. This is sensible, as the Reynolds defence is put forward as an answer to both the defamatory meanings of the articles, and the statutory public interest defence explicitly protects opinion as well as fact: Defamation Act 2013, s 4(5). In relation to the article of 23 June 2013, which bore only a factual meaning, the Defence pleads justification and Reynolds. As there was no comment, there is no room for any defence of fair comment.
11. The Reply pleads to the particulars of justification in paragraph 5, which contains numerous sub-paragraphs in which each particular is addressed and responded to in turn. Paragraph 6 addresses the plea of fair comment as follows:
"Save that it is admitted that the standard of behaviour of a Member of Parliament and Select Committee Chair is a matter of public interest, paragraph 34 is denied. The Defendant cannot demonstrate any (or any sufficient) factual support for the defence of fair comment/honest opinion. The facts reported in the article were not true. Paragraph 5 is repeated."
Specific paragraphs of the particulars of facts relied on in support of the fair comment plea are then addressed. If this plea were made good, the defence of fair comment would fall short of meeting the objective test of fair comment: that the comment is one that an honest person could have made on the basis of the facts.
12. Paragraph 7 of the Reply deals with the Reynolds defence. The body of that paragraph states that the plea of Reynolds privilege is denied, and explains the basis for that denial: "the Defendant (principally through the actions of the two journalists) did not act responsibly or in the public interest in publishing the Articles." Details of Mr Yeo's case in this respect follow, over 38 sub-paragraphs.
13. These sub-paragraphs identify a number of respects in which the Defendant's conduct is explicitly said to have been irresponsible or not responsible. For example, paragraph 7.16 alleges that in making reference in the articles to a House of Commons rule "The Defendant failed to act responsibly in that it did not make clear to readers that the Rule related specifically to bribes." At paragraph 7.18 it is alleged that statements in the article describing the initial contact made with Mr Yeo by the journalists were false and "particularly irresponsible", for certain stated reasons. Paragraph 7.27 describes the journalists' activities as a "blatant fishing expedition [which] was utterly inconsistent with the tenets of responsible journalism". Paragraph 7.29 complains that "The Defendant's decision to place the Claimant's denial at the end of the Front Page and Inside Page Articles, when the allegation appeared so prominently, was irresponsible."
14. The particulars also contain, however, a number of explicit allegations of deliberate misconduct. For example, paragraph 7.17 alleges that "The Defendant deliberately misrepresented the initial approach made in its email, …". Paragraph 7.23 alleges that "The Defendant deliberately distorted the Claimant's crucial caveat …", and paragraph 7.24 that "The Defendant thereby deliberately distorted the Claimant's clear statement that he could not act as a public advocate …"
15. There are also allegations which clearly imply deliberate misconduct even if they do not use the word "deliberate". At paragraph 7.15, for example, it is alleged that "by the time they came to write the Articles, Ms Blake and Mr Calvert must have appreciated that any indication by the Claimant of a willingness to provide advisory services was not a breach of the rules." In paragraph 7.32 it is alleged that "The video footage contained highly selective quotes designed to mislead and give a false impression of what the Claimant had said."
16. Other sub-paragraphs of Mr Yeo's case on Reynolds privilege contain allegations that are consistent with, and could be taken to imply, a case of deliberate misconduct, but are in my judgment equivocal. One example is paragraph 7.14, which says this:
"The Defendant had access to the full recording of the Meeting. The decision to deprive readers of the same access meant that it was incumbent on the Defendant to ensure that it presented an accurate and fair account of what had been said. Instead, the Defendant presented a grossly misleading account supplemented by a highly selective and misleading extract of video footage."
17. The language here does not include any allegation of deliberate wrongdoing. The nub of the criticism here could be viewed as a failure to discharge a duty incumbent on a responsible journalist to present an accurate and fair account, without an imputation of dishonesty. Certainly, there is no clear allegation of dishonesty. Yet there is some loaded language implying a state of mind ("decision to deprive", "selective").
18. Other instances of allegations which are equivocal in their presentation are the allegation that "The Defendant" had no sufficient basis on which to justify the use of subterfuge against the Claimant for the purposes of the PCC Code (Reply 7.9–7.13); and the allegation that paragraph [26] in the Inside Article ('Asked by the reporters if he would be able "to guide us through that process", Yeo replied "Yes"') was highly misleading (Reply 7.20).
19. A further, and prime example of an equivocal plea is what I shall call "the joke point". It arises from paragraph 7.29 of the Reply, in which the pleaders deal with...
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