England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice Strand London WC2A 2LL Monday 23 July 2001

1. LORD PHILLIPS MR: The appellant, Mrs Gillick, alleges that the respondents, The Brook Advisory Clinics and their chief executive, Dr Jones, have libelled her in a leaflet which they have published and distributed since 1996. The leaflet is about teenage pregnancies. It is Mrs Gillick's case that a passage in the leaflet carries the meaning that she was morally responsible for an increase in teenage pregnancies in the 1980s. The respondents contend that the passage in question is not capable of bearing the meaning that Mrs Gillick alleges. They applied to Eady J for a ruling to this effect pursuant to CPR Part 53, PD 4.1. He granted the application and went on to dismiss the action on the ground that there was no other defamatory meaning which the passage was capable of bearing. Mrs Gillick appears before us in person to appeal against that judgment, having been given permission so to do by Mance LJ.

The pleaded claim

2. The material parts of Mrs Gillick's particulars of claim read as follows:

"2 (1) The First Defendant .... has centres open to the general public in a number of cities in England and Scotland where it offers counselling and advice on sexual relationships, contraception, pregnancy and abortion to young women and to children under 16. It supplies contraceptives free of charge to those who consult it. It also publishes Factsheets and other material for use in schools, colleges and youth clubs and for those in the medical and teaching professions and the media.

(2) The Second Defendant is Chief Executive of the First Defendant.

....

5. In April 1996 the First Defendant began publishing and distributing and the Second Defendant authorised the publishing and distributing of a Factsheet entitled:

'Teenage Conceptions: Statistics and Trends'

The said Factsheet was republished by the Defendants with updated statistics in the Winter of 1998.

Both the 1996 and 1998 editions of the said Factsheet contained the following words which are defamatory of the Claimant:

"Teenage pregnancy...the trends over the last 25 years

After the introduction of free contraception on the NHS in 1975, teenage conception rates for the 15-19 age group steadily declined, reaching the lowest recorded figure in 1983. In the 1980s the downward trend was reversed. By 1990 the rate had risen by 23%.

What caused the teenage conception rate to rise in the 1980s

Fears over confidentiality. The legal case taken by Victoria Gillick in the early 1980s confused young people over their rights to confidential advice and deterred many from seeking contraceptive help. Although the case concluded in 1985 in favour of young people's rights, fear and uncertainty lingered on among teenagers and professionals working with them."

3. A footnote gives a reference to the legal case - Mrs Victoria Gillick v West Norfolk & Wisbech Area Health Authority 1985.
4. The issue raised is whether the words objected to are capable of bearing the defamatory meaning alleged. In a libel action that is a question of law for the judge.

The correct approach.

5. The Court of Appeal will always be very reluctant to reverse an interlocutory finding of a judge at first instance that the words alleged to be libellous are capable of bearing the defamatory meaning alleged (see Hinduja v Asia TV Limited [1998] EMLR 516, 523 per Hirst LJ and Cruise v Express Newspapers [1999] QB 931, 936 per Brook LJ).
6. Where the judge has held that words are not capable of bearing a defamatory meaning, with the result that the issue will never go to a jury, the reluctance to intervene will be less marked (see Hirst LJ in Geenty v Channel Four Television [1998] EMLR] 524 at 532).
7. Eady J produced what, if I may respectfully say so, was an impeccable synthesis of the authorities in this area of the law when directing himself as to the approach he should adopt to the respondents' application. I can do no better than to repeat this:

"The proper role for the judge when adjudicating a question of this kind is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his or her own judgment in the light of the principles laid down in the authorities and without any of the former Order 18 Rule 19 overtones. If the judge decides that any pleaded meaning falls outside the permissible range, then it will be his duty to rule accordingly. In deciding whether words are capable of conveying a defamatory meaning, the court should reject those meanings which can only emerge as the produce of some strained or forced or utterly unreasonable interpretation. The purpose of the new rule is to enable the court to fix in advance the ground rules and permissible meanings, which are of cardinal importance in defamation actions, not only for the purpose of assessing the degree of injury to the claimant's reputation but also for the purpose of evaluating any defences raised, in particular, justification and fair comment.

The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naive or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take a too literal approach to its task."

The nature of the defamatory meaning alleged:

8. This is not the first occasion on which Mrs Gillick has alleged that words spoken of her were defamatory in that they meant that she was "morally responsible" for certain regrettable consequences.
9. In 1989 Mrs Gillick took part in a live television programme in which one participant remarked that after she had, in circumstances to which I shall revert, successfully challenged the practice of doctors giving contraceptive advice to girls under 16 without informing their parents, at least two girls who were pregnant were reported to have committed suicide. Mrs Gillick sued the BBC for defamation alleging that this remark meant that she was morally responsible for their suicide. The BBC contended that the words complained of were not capable of carrying this meaning and, on a preliminary issue, succeeded in this plea at first instance.
10. On appeal this decision was reversed by a majority of the Court of Appeal (Gillick v British Broadcasting Corporation [1996] EMLR 267). In the course of the leading judgment Neill LJ held at page 273:

"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."

11. On the present appeal also the issue is whether the words complained of are capable of bearing the meaning that Mrs Gillick was in some way at fault and, thus, morally responsible to a culpable degree for an increase in the rate of teenage pregnancies in the 1980s.

The judge's reasoning

12. Eady J began his judgment with the observation that "Mrs Victoria Gillick has a long and well-known history as a litigant". He went on to describe the first part of that history as follows:

"In 1983 she took proceedings against the Department of Health and Social Security, and also a local health authority, seeking a declaration that a circular relating to family planning services was unlawful, in the sense that it reflected advice to the effect that professionals giving advice on birth control should not contact the parents or guardians of the persons receiving that advice even if they were under the age of 16, that of course being the age of consent. The action was dismissed by Mr Justice Woolf on 23 July 1983. An appeal was allowed by the Court of Appeal on 20 December 1984. That decision was reversed by a majority in the House of Lords in October 1985. The dissentients were Lord Templeman and Lord Brandon of Oakbrook. The litigation was of great significance for the medical profession and others involved in giving confidential advice on contraception and also, presumably, for many of those who wished to obtain such advice. There would have been a good deal of uncertainty, and no doubt also scope for confusion as to the rights and obligations of such people. In particular, during the period between the decision of the Court of Appeal and that of the House of Lords, those under 16 who wished for confidential advice would in many cases have been turned away.

This was undoubtedly a matter of public interest, and there was considerable divergence of opinion. It is clear also that in many cases opinions were held with conviction and expressed with fervour. Certainly, Mrs Gillick took her stand on the basis of strongly held personal, and, I believe, also religious beliefs."

13. The judge then described Mrs Gillick's action against the BBC, to which I have referred, which was settled when the BBC made a public apology to Mrs Gillick and paid her substantial damages. The judge then referred to an unsuccessful suit brought by the respondents against Mrs Gillick arising out of the same broadcast. The judge observed, "It is against that background that the present litigation comes before me".
14. After dealing with the approach in law and the submissions made by Mr Nicklin for the respondents, the judge reached the critical portion of his judgment:

"I must focus on the test which it is right for me to apply to the facts of this case. In that regard, Mr Nicklin poses the question whether right-thinking members of society could conclude that an unintended contribution towards a rise in teenage pregnancies, as a by-product of litigation pursued through the courts, merited disapproval or opprobrium towards the person responsible. He suggested that it is clear from the historical background that Mrs Gillick was in her litigation motivated solely by a desire to protect her own family interests and did not intend in any way to cause adverse consequences to others.

It seems to me that no reasonable person would think the worse of Mrs Gillick for having pursued her genuine convictions through the courts, despite the fact that there were, or may have been, some undesirable but incidental social consequences, any more than a right-thinking person would think the worse of Lords Justices Eveleigh, Parker and Fox, or of Lords Templeman and Brandon, each of whom for their various reasons was in favour of upholding Mrs Gillick's central thesis."

15. In her skeleton argument in support of her application for permission to appeal, Mrs Gillick made the following comments about the passage in the leaflet of which she complains:

"There is a huge and unfounded assumption in these words, namely that readers in 1996 will know or be able to recall in some detail what this 'legal case' was all about. The footnote reference to my name says only: 'Mrs Victoria Gillick v West Norfolk and Wisbech Area Health Authority 1985' which explains nothing, and only serves to highlight my name still further.

Lawyers, doctors and social historians might be assumed to know the details of this particular case from the early 1980s. Likewise the Defendants, who had strongly opposed it at the time. But we cannot and must not assume that in 1996 the ordinary man and woman in the street, let alone young people, were familiar with it to any extent, or even at all.

The absence of any explanation of this 'legal case', such as its cause and intentions, its various legal stages and rulings, and even the crucial fact that it applied only to girls under 16, meant that the ordinary reasonable reader had to accept the case at its face value and guess for himself what it was all about.

Indeed, by omitting even the briefest details of the 'legal case', the Defendants effectively ensured not only that a clear link would be made in the reader's mind between the person named and the untoward consequences then described, but also that the reader was the more likely to 'read between the lines' and engage in some loose thinking of his own.

Irrespective of whether the reader recalled the 'legal case' or not, and whatever he may have believed my motives were in taking it, the words complained of would still lead him to the same inevitable conclusion, namely that I had prevented young people from getting the contraceptive help they needed, and as a result they became pregnant.

A disinterested reader such as a lawyer might accept this conclusion uncritically as a simple statement of fact. But I submit that for the ordinary reasonable layman it would hold most unfavourable implications, the most reasonable ones being that I was to blame for the girls becoming pregnant; it was my fault because I brought the case in the first place which prevented them from being able to protect themselves from pregnancy; and whether or not I intended such a disastrous outcome, the fact remained that I was the cause of it and was therefore morally responsible for what happened to these teenagers."

16. It seems to me that some of the points made by Mrs Gillick in relation to the article can be applied to the central passage of Eady J's judgment. Young readers would not know the historical background; would not know that Mrs Gillick was motivated only by a desire to protect her family interests; would not know that she was pursuing genuine convictions through the court; would not know that she was taking her stand on strongly held religious beliefs. All they would know would be what the leaflet told them.
17. The leaflet told them that she had brought a case in the early 1980s which confused young people over their rights to confidential advice; deterred many young people from seeking contraceptive advice; caused fear and uncertainty to linger on among teenagers and professionals working with them; and constituted an attack on young people's rights which was held to be unfounded.
18. It seems to me, considering that leaflet and the passage in question, as I believe one must, without reference to any special background knowledge about Mrs Gillick or the nature of the legal proceedings she brought, that the ordinary reader (and I believe it is right to have regard to the fact, as it is pleaded, that some at least of the readers would be young) would be capable of reading this passage in a way that led them to think that Mrs Gillick must bear some of the blame for the increase that took place in pregnancies among 15 to 19 year old girls during the 1980s. The test is whether the conclusion that she was morally responsible so as to be in some respect at fault is one which falls within the spectrum of which the words used were reasonably capable. In my judgment that fact is satisfied.
19. It is for that reason that I differ from the conclusion of the learned judge that the words in question are not capable of bearing a defamatory meaning.
20. Accordingly, I would allow this appeal.
21. LORD JUSTICE LATHAM: I agree. I would emphasise that we are concerned with whether the passage about which Mrs Gillick complains is capable of bearing the meaning that she alleges. It seems to me, as my Lord, the Master of the Rolls has explained, the that the problem in the present case is that the judge, who had directed himself impeccably, fell into error when he reached his conclusions by ascribing to the reader attributes as to knowledge of the background which, in my judgment, cannot necessarily be ascribed to the reader, particularly those who are young.
22. For those of us who have known of Mrs Gillick's case since it was brought, this background enables us to apply our own judgment to the passage in the publication and to reach a conclusion such as that which was reached by the judge. But, for those who do not have that knowledge, it does not seem to me that that is necessarily the case. Clearly, it is only if it could properly be said that no reasonable person could think the worse of Mrs Gillick by reason of the passage in question, that the judge's decision could be upheld.
23. Whether the court or a jury would find that it did in fact carry the meaning alleged by Mrs Gillick if the matter were to proceed to trial, is another matter. But that is not the question which we have to answer today.
24. I, like my Lord, am of the view that the judge was, on this occasion, wrong in the assessment that he made of whether or not these words were capable of bearing a defamatory meaning. I, too, would allow this appeal.
25. LORD JUSTICE JONATHAN PARKER: As my Lord, the Master of the Rolls, has said, the extract from the Factsheet of which Mrs Gillick complains states that the case which she brought in the early 1980s confused young people over their rights to confidential advice, deterred many young people from seeking contraceptive advice; constituted an unjustified attack on young people's rights; and caused fear and uncertainty to linger on among teenagers and professionals working with them.
26. To anyone knowing nothing of the case, that statement is, in my judgment, well capable of being interpreted as implying that Mrs Gillick is in some way to blame for the increase in pregnancies among 15 to 19 year old girls during the 1980s.
27. The judge's contrary conclusion is, in my judgment, flawed by the fact that he attributed to the notional reader his own knowledge of the case and, in particular, the fact that Mrs Gillick "took her stand on the basis of strongly held personal, and, I believe, also religious beliefs", and that she "pursued her genuine convictions through the courts".
28. In my judgment a young person reading the Factsheet in 1999 is not to be assumed to know that.
29. I therefore agree, for the reasons my Lords have given, that this appeal should be allowed.
Order: Appeal allowed with costs to be agreed subject to standard entitlement for a litigant in person. Costs paid by appellant in court below to be repaid within 14 days together with the costs of the appeal. (Order does not form part of approved judgment)