England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Sir Michael Davies

		QBENF 94/0537/C Royal Courts of Justice Strand, London WC2
		19th October 1995

NEILL L.J.

1. Part of the background to this case is the public controversy over the provision of confidential advice about contraception to girls under the age of sixteen.
2. In July 1964 the first Brook Advisory Centre was opened. One of the objectives of the Centre was to provide young single women and girls with contraceptive advice. In the course of the next twenty five years Brook Centres were opened in other cities in Great Britain.
3. On 27 July 1989 the British Broadcasting Corporation broadcast a live television programme entitled "The Garden Party." Part of that programme included a discussion about the work of the Brook Centres. The broadcast took place on the 25th anniversary of the opening of the first Brook Centre. Those who took part in the discussion were Mrs Karon Keating, the presenter, Mrs. Susan Pearce, a journalist who at the time contributed an "Agony" column in the magazine LOOKS, and Mrs. Victoria Gillick.
4. In 1982 Mrs. Gillick commenced proceedings in the High Court against the Department of Health and Social Security for a declaration that a circular issued by the Department regarding family planning services was unlawful because the circular contained advice from the medical profession to the effect that when a child of whatever age was given advice about contraception the parents should not be contacted without the child's permission. On 23 July 1983 Woolf J. dismissed Mrs. Gillick's action, but on 20 December 1984 the Court of Appeal unanimously reversed the judge's decision. Subsequently, however, on 17 October 1985 the House of Lords reversed the decision of the Court of Appeal.
5. In the present proceedings, which were commenced by Mrs. Gillick on 23 July 1992, she complains of some words spoken by Mrs. Pearce in the course of the broadcast discussion. I shall have to come in a moment to the meanings which Mrs. Gillick seeks to attach to the words.
6. At this stage it is sufficient to note that by the defence served on 13 October 1992 the British Broadcasting Corporation and Mrs. Pearce denied that the words complained of were capable of bearing the meanings alleged by Mrs. Gillick.
7. On 30 November 1993 Master Topley made an order for the trial of a preliminary issue under RSC Order 33 rule 3 to determine whether the words complained of in their proper context were capable of bearing "the meanings pleaded in paragraph 7 of the amended statement of claim".
8. The preliminary issue was tried by Sir Michael Davies sitting as a judge of the High Court, when he decided that the words complained of were so capable and he directed that judgment should be entered for Mrs. Gillick on the preliminary issue.
9. The defendants have now appealed.
10. This court has been provided with a transcript of the broadcast discussion and also had an opportunity during the hearing of the appeal of seeing a video recording of the discussion.
11. In order to understand the arguments advanced on behalf of the parties it is necessary to make some reference to the discussion.
12. At the outset of the discussion the presenter introduced Mrs. Gillick and Mrs. Pearce. In introducing Mrs. Gillick she said that she had fought a lengthy court battle to restrict a G.P.'s right to offer contraceptives to girls under 16. After her introduction the presenter then turned to Mrs. Pearce to ask her for her verdict on the Brook Centre. Mrs. Pearce said this:

"I think it has done a very good job. It has done a job that nobody else has been doing in quite the same way. Teenage pregnancies have gone down since the Brook opened. And there is a much more ... There is an atmosphere now where people talk much more about contraception and where young people know that they can go and get the kind of help and advice that they need in the Brook Centres. ... It is because the Family Planning Service doesn't really cater for young people as much as it could. In 1974 the DHSS did recommend that the Family Planning Service operated special sessions for youngsters and ten years later only 42% of them had that, so they don't really offer the same kind of atmosphere and the same focus on youth and youth's problems that the Brook does."

13. The presenter then turned to Mrs. Gillick to ask her for her verdict on the Brook Centres. It is sufficient to refer to only parts of her reply. She said:

"Total disaster. If they were running clinics trying to reduce levels of alcoholism or drug taking amongst the young and after twenty years there was ... had been 100,000 drug addicts registered, you would say 'they've failed'. Well in the last ... since 1975 there has been 100,000 school girl pregnancies of which 55,000 ended in abortion. Now if the Brook has had any part of that and they have, then they should have been drummed out of business long ago, because that is a failed policy by anybody's standards.

Now we are licking our wounds as you might say from the permissive society and the Brook is looking a bit sheepish because it has been promoting it. It actually could convince people like Sue here, that it has helped reduce the number of pregnancies. They reduced, after I won that battle in 1984, from 1985 onwards it had begun to reduce because the number of girls going to the Brook clinics is still well down and to the 30,000 other G.P.'s in this country-was still down."

14. There then followed the following exchange. The words spoken by Mrs. Pearce are the subject matter of Mrs. Gillick's claim for damages for libel.

Mrs. Pearce

"But after you won that battle in 1974 there were at least two reported cases of suicide by girls who were pregnant."

Mrs. Gillick

"Oh no, that's a libel. That's a libel."

15. Mrs Pearce then referred to the letters which she had received from girls who either wanted to take an overdose or who had taken an overdose because they were pregnant and did not know where to go. She said that contraception failed because of people's ignorance and that the Brook Centres were there to inform and counsel girls about contraception and about sexual relationships.
16. It is common ground that Mrs. Pearce's reference to 1974 would have been understood as a mistake for 1984.
17. The reference was to the period between December 1984 and October 1985 when the declaration granted by the Court of Appeal still stood. This declaration declared that the advice given in the DHSS circular was unlawful.
18. It is pleaded in paragraph 7 of the amended statement of claim that the words spoken by Mrs. Pearce in their natural and ordinary meaning and/or by way of innuendo meant and were understood to mean that Mrs. Gillick caused and/or was morally responsible for the death by suicide of at least two young girls.
19. It is not suggested on behalf of the defendants that in the months following the decision of the Court of Appeal there were "at least two reported cases of suicide by girls who were pregnant" or indeed any cases. But the fact that the words complained of were untrue, though it removes the possibility of a plea of justification, is not relevant to the question whether the words bore the meanings alleged.
20. Both before the judge and before us Mrs Gillick appeared in person. She pointed out that the broadcast discussion was about the good and bad effects of the policies and practices of the Brook Centres. In the words complained of Mrs. Pearce was clearly alleging that a bad consequence of Mrs. Gillick's success in the Court of Appeal was that it had led to the suicide of at least two pregnant girls. There could be no doubt that Mrs. Pearce was alleging that there was a clear link between Mrs. Gillick's success and these two or more suicides. It followed that she was implying by her words that Mrs. Gillick was morally responsible for the girls' deaths.
21. On behalf of the defendants it was submitted that it was important to bear in mind that this was a serious discussion programme. Mrs. Pearce was not making any personal attack on Mrs. Gillick but was engaged in a debate about the merits of Mrs. Gillick's position and her criticisms of the work of the Brook Centres. It was not suggested that Mrs. Gillick did foresee or should have foreseen the outcome of her campaign or of her success in the Court of Appeal. The words complained of could only be defamatory if there was an inference of "culpable responsibility". She would have been no more responsible than the members of the Court of Appeal if there had been any suicides

The Law.

22. The order made by Sir Michael Davies was made following the trial of a preliminary issue ordered under RSC Order 33 rule 3. Such an order would now be made under RSC Order 82, rule 3A.
23. It is important to bear in mind that the judge's decision was on the question of law whether the words complained of were capable of bearing the meanings alleged in paragraph 7 of the amended statement of claim.
24. The actual meaning has yet to be decided. Nevertheless, it is helpful to refer to the recent guidance given by the Master of the Rolls giving the judgment in the Court of Appeal in Skuse v. Granada Television Ltd. (30 March 1993) (unreported) in which he set out the principles on which they had approached the task of deciding the meaning actually to be attributed to the words used in that case.
25. I can summarise the relevant principles as follows:

(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once.

(2) The hypothetical reasonable reader (or viewer) is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) While limiting its attention to what the defendant has actually said or written the court should be cautious of an over-elaborate analysis of the material in issue.

(4) A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.

(5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court are entitled (if not bound) to have regard to the impression it made on them.

(6) The Court should not be too literal in its approach.

(7) A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.

26. In the context of the present case I do not think it is necessary to refer in more detail to the judgment of the Master of the Rolls, save to say that he cited a passage from Lord Devlin's speech in Lewis v. Daily Telegraph Ltd. [1964] AC 234 at 277 where Lord Devlin pointed out that a layman reads in an implication much more freely than a lawyer and added "unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory".
27. We were referred to a number of other authorities which Mr. Caldecott QC had conveniently collected together in a bundle. It seems to me, however, that the issue to be determined does not admit of elaborate analysis.
28. Mr. Caldecott did not suggest that the "at least two reported cases of suicide" would have been understood as being merely coincidental. He accepted that the reasonable viewer could infer that there was a clear link between Mrs. Gillick's success in the Court of Appeal and the "suicides". His argument was that the programme did not suggest that Mrs. Gillick was "culpable".
29. I am unable to accept this argument. It will be for the jury to decide what the words complained of actually meant in their context. At this stage I am satisfied that within the spectrum of meanings of which the words were reasonably capable is the meaning that Mrs. Gillick was in some sense to blame for the girls' deaths and therefore morally responsible to a culpable degree. The fact that the programme included a serious discussion on a serious subject does not in my view assist the defendants. The fact that the discussion was serious lessens the possibility that any remark was merely flippant or ill-considered. The suicide of two or more young girls would have been a most distressing event and reasonable viewers might well have taken a most unfavourable view of anyone who was even remotely responsible for the girls' actions.
30. I am satisfied that a jury might properly come to the conclusion that Mrs. Pearce's words would have been likely to affect Mrs. Gillick "adversely in the estimation of reasonable persons generally".
31. I would dismiss the appeal.
32. Lord Justice Evans : I agree.
33. The subject-matter of the broadcast discussion between Mrs Pearce and Mrs Gillick was the twenty five year history of the Brook Advisory Centre. Mrs Pearce claimed credit for it in helping to reduce the number of teenage pregnancies. Mrs Gillick challenged this and went on to claim that her own campaign had been more effective, particularly in 1984/5 when the Court of Appeal had ruled in her favour. Mrs Pearce then made the remark which is complained of, and Mrs Gillick responded "Oh no, that's a libel".
34. I suspect that she meant by this "that's untrue". It is not now suggested that the allegation that there had been two reported cases of suicide was correct. The question raised by this appeal is whether the remark, being untrue, was capable of being defamatory in the circumstances in which it was made. That is a question of law.
35. I do not see how the suggestion can be resisted that the remark was at least capable of being understood to mean that Mrs Gillick through her well-publicised campaign bore some degree of moral responsibility for the two alleged deaths. If so understood, it was a wounding remark which, if it was untrue, in my judgment was defamatory also.
36. MILLETT L.J.: I have the misfortune to reach a different conclusion. I do so with more than usual diffidence, since I am conscious not only of my own unfamiliarity with this branch of the law but also of the very great experience of those from whose opinions I find myself driven to dissent. I comfort myself with the reflection that while the law of defamation has attained a degree of refinement and sophistication besides which the equitable doctrine of the constructive trust is a model of clarity and simplicity, the question whether the words complained of are capable of being defamatory is to be considered by reference to the natural and ordinary meaning which they would have conveyed to the ordinary and reasonable person seeing or hearing them.
37. The Action is the result of a live discussion programme which was broadcast on television and in which the Plaintiff Mrs. Gillick and the Second Defendant Mrs. Pearce took part. The subject of the discussion was the provision of advice on contraception to young girls. Mrs. Gillick was well-known as a campaigner strongly opposed to the availability of such advice, which she believed encouraged young girls to engage in promiscuous sexual activities. Mrs. Pearce, by contrast, strongly supported the availability of such advice, which she believed reduced the incidence of unprotected intercourse and unwanted pregnancies among those who received it. In 1982 Mrs. Gillick had brought legal proceedings to procure the withdrawal of a circular to general practitioners which stated that it was permissible to give contraceptive advice to under-age girls without the consent of their parents. Her action succeeded in the Court of Appeal but failed (by a narrow majority) in the House of Lords.
38. In support of her position Mrs. Gillick asserted on the programme that the number of under-age pregnancies had reduced "after I won that battle in 1984". To this assertion Mrs. Pearce responded with the words complained of as follows:

"But after you won that battle in 1974 (sic) there were at least two reported cases of suicide by girls who were pregnant."

39. Mrs. Gillick responded:

"Oh no, that's a libel. That's a libel."

40. The question for our consideration is whether it would be open to a jury to find that it was an actionable libel.
41. Mrs. Gillick pleads that in their context within the programme as a whole the words complained of bore the defamatory meaning that she "caused and/or was morally responsible for the death by suicide of at least two girls". At the trial of a preliminary issue whether the words complained of were capable of bearing the meaning pleaded, Sir Michael Davies held that they were, and it is from that ruling that the Defendants appeal. In my view it was the wrong question or, more accurately, the question was not sufficient to dispose of the real issue between the parties. The proper question was whether the words complained of were capable of bearing the meaning pleaded and if so whether so understood they were capable of bearing a defamatory meaning.
42. I do not believe that any reasonable person watching the programme could fail to understand what Mrs. Pearce was saying. Mrs. Gillick had claimed the credit for the reduction in the number of under-age pregnancies which followed the success of her campaign. Mrs. Pearce's response was that if she claimed the credit for the reduction in the number of under-age pregnancies she must accept responsibility for the deaths of at least two young girls which, she alleged, was also the result of the success of her campaign. I do not believe that any reasonable viewer would think for a moment that Mrs. Pearce was going further than this and accusing Mrs. Gillick of having intended or desired or foreseen (or having wrongly failed to foresee) that this would be the consequence of the success of her campaign or of having pursued her campaign with reckless disregard for the consequences.
43. I have no doubt, therefore, that the words complained of were capable of bearing the meaning that Mrs. Gillick was morally responsible for the deaths of at least two young girls, but only because they were the factual consequence of the implementation of the policy for which she had campaigned. The expression "morally responsible" is often used in this sense. It does not connote any degree of culpability or blameworthiness. Indeed, the word "morally" is used to indicate that the person in question is not really responsible. But the expression reflects a common feeling that a person whose conduct in fact leads to unintended and unforeseen but tragic consequences has them "on his conscience."
44. I also accept that Mrs. Pearce could reasonably be understood as alleging a causal link between the adoption of the policy for which Mrs. Gillick had campaigned and the deaths of the girls, but only in the sense that they would not have occurred but for Mrs. Gillick's activities. I agree, therefore, that the words complained of were also capable of bearing the meaning that Mrs. Gillick had "caused" the alleged deaths, but only in this limited sense. The word is sometimes used in this sense but, I think, it would generally be regarded as an exaggeration. Had two viewers discussed the programme afterwards, I can well understand one saying to the other: "Well, you heard what Mrs. Pearce said. Two girls died as a direct result of what Mrs. Gillick did. She as good as caused their deaths." But the other would surely protest and say: "That's going much too far. You can't say she caused their deaths." And the former would surely reply: "No, but if it hadn't have been for her they wouldn't have died. She's morally responsible. That's all I meant."
45. Accordingly, I agree that the first limb of the question which I have reformulated should be answered in the affirmative. But it is still necessary to consider whether, so understood, the words complained of were capable of bearing a defamatory meaning; and here I respectfully part company with my Lords. Of course, if Mrs. Pearce had accused Mrs. Gillick of having caused or of being morally responsible for the deaths of two young girls, this might well have been capable of being defamatory. The words have a wide range of possible meanings, some of which are defamatory and others of which are not; and it would be for the jury to decide what meaning they bore in the context in which they were spoken. But this is not what Mrs. Pearce said. The question is not whether an allegation that Mrs. Gillick had caused or was morally responsible for the girls' deaths would have been capable of bearing a defamatory meaning; but whether an allegation that the successful outcome of her campaign had in fact led to their deaths, so that in this sense Mrs. Gillick could be said to have caused or to be morally responsible for the deaths, is capable of being defamatory.
46. I am firmly of the view that it is not. Mrs. Pearce was attacking Mrs. Gillick's policy; she could not reasonably be understood as criticising Mrs. Gillick herself save for having put forward a policy which had such disastrous consequences. She was accusing Mrs. Gillick of having been tragically mistaken, but that is all; and that is not defamatory. The same could be said of the members of the Court of Appeal who decided the case in Mrs. Gillick's favour. I do not believe that Mrs. Pearce's words were capable of being defamatory of them. Similar allegations could be and often are made, for example, of a Minister of Health whose policy of financial retrenchment has brought about the closure of a ward or accident unit which, it is claimed, has led to avoidable deaths. He might well be described by ordinary people as being "morally responsible" for the deaths in question and even, in a wilder moment, of having "caused" them. But I do not accept that either statement would be actionable. However personalised, it would still be an attack on the Minister's policy and not on the Minister, save for having mistakenly adopted a policy with such tragic consequences.
47. Mrs. Pearce's remarks were deeply wounding, and it is not surprising that Mrs. Gillick responded by saying "That's a libel." If untrue, it was a serious libel of Mrs. Gillick's policy; but it was not an actionable libel of Mrs. Gillick herself.
48. I would allow the appeal.

Order: appeal dismissed with costs.