Travel Insurance Facilities Plc (trading as “Tifgroup”) v Times Newspapers Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Jay |
| Judgment Date | 24 May 2019 |
| Neutral Citation | [2019] EWHC 1337 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB/2018/00285 |
| Date | 24 May 2019 |
[2019] EWHC 1337 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Jay
Case No: QB/2018/00285
Hugh Tomlinson QC and Ian Helme (instructed by Pannone Corporate LLP) for the Claimant
David Price QC (instructed by David Price Solicitors) for the Defendant
Hearing date: 15 th May 2019
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.
Introduction
The Claimant is a managing general agency in the travel insurance sector and is the UK Branch office of Union Reiserversicherung AG (“URV”). The Claimant has a binding authority with URV and provides underwriting, sales, medical screening, assistance and claims handling services. It works with a number of leading travel insurance brands including Boots, the Post Office and Holidaysafe.
This litigation is about two articles published in The Times on 20 th November 2018 and a third article published on 24 th November. The First Article was on the front page (although it continued onto page 2 in the print edition) and appeared under the headline “Boots travel insurer faces investigation over deaths”. The Second Article appeared on page 6 under the heading “News: Times Investigation”. The headline was “I begged, but they wouldn't pay to bring my dad home”. The Third Article appeared four days later in the news section of the paper and was under the headline, “Insurer left my aunt to die, says Lloyds boss”.
The three articles are set out in the Appendix to this judgment with paragraph numbers added by me to aid orientation. In this judgment I will be referring to those paragraph numbers using square brackets.
My first step when opening these papers was to read the articles once before studying the skeleton arguments, the pleadings and the “Rival Meanings” document. Inevitably, I then re-read the articles before coming into court, and the process of familiarisation continued as the hearing progressed, assisted as I was by the parties' submissions. Throughout, I have been conscious of the need to eschew over-analysis.
On 7 th March 2019, following the agreement of the parties, Master McCloud ordered the trial of two preliminary issues, viz.:
(1) The meaning(s) of each of the Articles complained of.
(2) In relation to each defamatory imputation conveyed by the Articles, whether this is an allegation of fact or of opinion. (It is now agreed that this second issue arises only in relation to the Second Article.)
The areas of dispute have narrowed as this litigation has progressed. However, there remain a number of issues for judicial resolution, some of which are more important than others. I am grateful to Counsel for the precise and focused way in which their submissions were advanced.
The Respective Cases on Meaning
The First Article
The Claimant's case as advanced in writing and as opened by Mr Hugh Tomlinson QC, is that the First Article meant:
(1) there are reasonable grounds to suspect the Claimant of fraud;
(2) the Claimant has improperly ignored doctors' advice to fly patients home, refused to engage with doctors and wrongfully denied patients treatment solely for the purpose of maximising profit; and
(3) there are strong grounds to suspect that the Claimant's medical negligence and improper refusal to provide medical treatment and/or emergency flights home has wrongfully caused the deaths of a number of its customers.
The Defendant's case is that the First Article meant:
(1) there are reasonable grounds to suspect that the Claimant has a practice of seeking to delay, avoid or minimise payments due in relation to medical claims under travel insurance policies, including such tactics as going against the treating doctor's advice to fly patients home, denying recovering patients suitable aftercare, deliberately avoiding contact with treating doctors and making patients pay upfront for treatment.
(2) in consequence, there are reasonable grounds to suspect the Claimant of misleading policyholders amounting to fraud.
(3) there are reasonable grounds to suspect that the Claimant has failed to take suitable care of policyholders, which may have resulted in avoidable deaths.
As regards (1) above, I have reflected the modest amendment put forward in a post-hearing written submission.
The Claimant's three meanings are, respectively, at Chase level 2, Chase level 1 and Chase level 1 1/2. In oral argument Mr Tomlinson submitted in the alternative that the second meaning (see para 7(2)) above could be Chase 1 1/2. In his reply he applied to amend his Particulars of Claim to bring his first meaning (currently Chase 2) in line with his second meaning. There has been some discussion of whether an amendment is strictly necessary, but in the event that I should rule that the second meaning is either at Chase 1 or 1 1/2, I consider that I should be allowing the application on the ground that there is no prejudice to the Defendant and it is appropriate to maintain consistency across these two meanings. The first and second meanings are inextricably intertwined because proof of the allegation(s) of fraud hinges on proof of the “pattern of practice to delay, avoid or minimise payments”, and the “alleged tactics” listed under [6] are examples or manifestations of that practice or those practices. It follows that the meaning must be the same throughout, and that the defence on the merits will stand or fall across these two allegations or sets of allegations. There is no room for the possibility of differential findings by the court either in connection with the defence of justification or that of public interest.
The Second Article
The Claimant's revised case is that the Third Article meant: the Claimant refused to transport Martin Blake and Joan Rest solely in order to delay, avoid or minimise payments due in relation to medical claims under its travel insurance policies, and there are reasonable grounds to suspect that it did so in other cases. The allegation in the principal clause is at Chase level 1 and in the subordinate clause at Chase level 2.
The Defendant's case is that the Second Article meant:
(1) there are reasonable grounds to suspect that the Claimant's doctor's denial of an air evacuation or transfer to a private hospital for the seriously ill Martin Blake was motivated by the wish to avoid, minimise or delay paying the costs involved.
(2) there are other cases, such as Ms Rest's, in which it is reasonably to be suspected that the denial by the Claimant of a flight on grounds of the risk to the patient and/or of private hospitalisation has been similarly motivated.
In relation to both (1) and (2), the Defendant's case is that these are statements of opinion rather than of fact. To the extent necessary, the Defendant's case is that these are Chase 2 allegations, but in my view this issue arises only if the primary case on opinion should fail.
The Third Article
The Claimant's case is that the Third Article meant:
(1) the Claimant wrongly caused Ms Goodman's death by ignoring doctors' advice that she had to be moved from the hospital she was in or would die; and
(2) there are strong grounds to suspect that Ms Goodman's death was not an isolated incident and that many patients may have died as a result of the Claimant's practice of delaying, avoiding or minimising payouts (there appears to be a typographical error in Mr Tomlinson's skeleton argument).
The Defendant's case is that the Third Article meant:
(1) there are reasonable grounds to suspect that the Claimant failed to take suitable care of Ms Goodman, which may have resulted in her avoidable death.
(2) there are reasonable grounds to suspect that the Claimant has a practice of seeking to delay, avoid or minimise payments due in relation to medical claims under travel insurance policies, including contact with treating doctors.
(3) there are reasonable grounds to suspect that the Claimant has failed to take suitable care of policyholders, which may have resulted in avoidable deaths.
Applicable Legal Principles
Meaning
The general approach to the determination of issues of meaning has been helpfully summarised by Nicklin J in Koutsogiannis v The Random House Group [2019] EWHC 48 (QB), paras 11 and 12; and by Warby J in Feyziyev v The Journalism Development Network Association [2019] EWHC 957 (QB), paras 15–18. It is unnecessary to set these passages out in this judgment; I have them well in mind.
In Lewis v Daily Telegraph [1964] AC 234 at 280, the House of Lords made clear that the court must address not just the literal meaning but the inferences a reasonable person would draw from the context.
At para 17 of his judgment in Brown v Bower [2017] 4 WLR 197, Nicklin J discussed the issue of levels of gravity in the context of the familiar terminology in Chase v News Group Newspapers Ltd [2003] EMLR 11. I have already allocated the relevant Chase level to each of the meanings or sub-meanings relied on by the parties, but the relevant law should be encapsulated. In short:
“[Brooke LJ in Chase] identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning,...
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Rachel Riley v Myrna-Jane Heybroek
...para 17 of Nicklin J's judgment in Brown v Bower [2017] 4 WLR 197, applied by me in Travel Insurance Facilities Plc v The Times [2019] EWHC 1337 (QB). In this latter case, the matters in question were being actively investigated by regulators. Secondly, the Lawson article does not specify......