Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE LONGMORE
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Mr Mark Warby QC and Ms Victoria Jolliffe (instructed by Taylor Wessing) for the Respondent
Hearing dates : 5 July 2011
Crown Copyright ©
Lord Justice Laws:
"The recent removal of the right to claim additional accommodation expenses from MPs with constituencies wholly within 20 miles of Westminster should be extended to those whose constituency homes fall within a reasonable commuting distance. The independent regulator should draw up a revised list of constituencies to which this principle applies. "
"Sir, There is cross-party consensus about the need to get more women into the House of Commons, and to encourage women with young families to stand for Parliament. As serving MPs, we are concerned that aspects of Sir Christopher Kelly's proposals will discourage women who might otherwise seek their party's nomination as well as exposing existing MPs to unnecessary risk.
The Kelly report does not address the fact that MPs are, in effect, shift workers. On Mondays and Tuesdays, we are expected to remain at the House of Commons for 10 pm votes. The voting process is slow, and means that we are often unable to leave Westminster until 10.45 pm. Under Kelly's proposed regime MPs whose constituencies are within an hour's train journey of London will receive no financial assistance to rent accommodation, and will have to return home each evening.
Trains are slower and less frequent at night, and some MPs will not be able to reach their home stations until after midnight. In some cases, they will have to alight at unstaffed stations and walk to their cars through car parks or wait for taxis. The risk of mugging or sexual assault is obvious, and is likely to deter women who currently have jobs where the safety of employees is treated with the seriousness it deserves. We cannot believe that Sir Christopher Kelly seriously intends that his proposals should put female MPs at unnecessary risk, but in the light of this report we call upon the leaders of our parties to reaffirm their commitment to making Parliament a friendlier place for women. We also call on the Independent Parliamentary Standards Authority to ensure that the safety of current and future MPs is a guiding principle in its deliberations."
"But today women MPs attacked one of the Kelly Report's key proposals a ban on second homes for those who live within an hour of Westminster.
Labour's Claire Curtis-Thomas, Kali Mountford and Phyllis Starkey, as well as Tory MPs Jacqui Lait and Eleanor Laing, said that the proposals 'will discourage women who might otherwise seek their party's nomination, and well as exposing MPs to unnecessary risk'".
Here is the paragraph said to defame the appellant:
"However, the criticism may risk the ire of some. Ms Lait claimed large sums to travel to her family home in Sussex, even though her constituency home was 11 miles from Westminster. She was forced to pay back nearly £25,000 after it emerged she had made a major capital gain on the sale of a home funded by the taxpayer."
"4. In their natural and ordinary meaning these words meant and were understood to mean that the Claimant deliberately failed to account for a large profit that she had made on the sale of a taxpayer-funded home, a deception so serious that the Parliamentary Fees Office ordered her to pay back almost £25,000."
In fact the appellant had not been "forced" to repay £25,000, or any sum, and had not done so. The respondents had got the facts wrong: the allegation concerned a different MP. A laconic correction was published in the Evening Standard on 26 November 2009, but no further reparation was offered or made.
"The allegation was used in the Article specifically to undermine the Claimant's concerns that the proposals to reform funding for Members of Parliament risked deterring women who might otherwise seek their party's nomination. In so doing the Article not only obscured a concern shared by numerous Members of Parliament, but also, critically, called into question whether the Claimant's stance was genuine. Given that the Claimant is an elected public servant who depends on the trust of her constituents, the implication is potentially hugely damaging."
"19. This introduces what Mr Warby [sc. for the respondents] characterises as the 'hypocrisy' charge in relation to the Claimant's stand on the proposed reforms. As I have already indicated, I think this is a legitimate meaning at least for the purposes of argument at trial. But it is confusing (especially, potentially, for a jury) to have to address a different defamatory meaning in respect of aggravation of damages from the primary meaning. They would have to decide whether the words bore the meaning in question and I cannot see why it should be pleaded in a different place. If it belongs anywhere, it belongs in the conventional meaning paragraph (in this case, paragraph 4 of the particulars of claim). If the opportunity is taken to amend the pleading, no doubt that can be embraced within it."
In light of one of the submissions advanced by Mr Rampton QC for the appellant I should also set out paragraph 11 of Eady J's judgment of 25 March 2010:
"Most readers will know, therefore, that much of that conduct was lawful and recognised as being within the system. So why, asks Mr Warby, would anyone think the worse of the Claimant? That is all well and good, but the fact remains that the article uses the words 'forced' and 'emerged', which are capable in my judgment of suggesting something to her discredit. She had to be forced to 'pay back' sums of money to which, at least morally, she is now thought not to have been entitled. She had initially tried to avoid doing the right thing and, what is more, it did not 'emerge' for some unspecified time. This introduces connotations of concealment and being underhanded. All I say is that these are possible defamatory meanings."
"(1) The Claimant milked the parliamentary expenses system by buying a second (constituency) home with taxpayers' money and in due course selling it and making a large capital gain on the sale. In those circumstances, she had a moral obligation both to disclose this gain and to repay all or some of it. But she did neither, choosing instead to conceal it for as long as she could. In consequence, when it was eventually discovered, she was forced to repay nearly £25,000 of it to the taxpayer.
(2) In consequence, the Claimant's publicly stated opposition to the proposed reforms, whose effect would be to prevent her from claiming expenses on her constituency home because it was within an hour (11 miles) of Westminster, could legitimately be regarded as insincere and hypocritical, being motivated not, as she had claimed, by concern that the reforms might discourage women from standing for Parliament and present a risk to the personal safety of women MPs, but by a desire not to lose the benefit of public funding for her constituency home.
(3) The Claimant's conduct in both the foregoing respects was disreputable, underhanded and dishonourable, with the result that her criticism of the proposed reforms was apt, rightly, to provoke public anger."
There followed an amended defence and reply. The reply was served in May 2010. In it the appellant averred (paragraph 9.8.1) that she had realised no capital gain on the Beckenham flat and (paragraph 9.8.3) that she had no obligation of payment to the State in respect of any such gains. On 30 June 2010 (as the respondents discovered in September 2010) she sold the flat for £290,000, realising a profit of some £174,000 of which about £130,500 represented a gain generated by the mortgage loan on which the interest had been paid by the taxpayer.
"The Defendant states in paragraph 13.7 to 13.10 of its amended defence that I have made a capital gain at the taxpayer's expense on the Beckenham flat since it is worth more now than it was when I paid for it. I do not understand the basis for the Defendant's plea as it does not appear to be capable of justifying the sting of the words complained of or the meanings which the defendant says are true. There is no allegation that I have done anything disreputable, dishonourable or wrong. "
As will be clear, this was a week before she sold the flat. On 7 September the respondents issued a cross-application for summary judgment on the ground that their defence of fair comment was bound to succeed. Both applications came before Eady J on 22 November 2010 and his judgment upon them of 9 December 2010 in the respondents' favour is, as I have said, the subject of this appeal.
"By signing a letter to The Times attacking a key reform proposal of the Kelly Report which would ban second home expenses for MPs within an hour of Westminster the Claimant had exposed herself to legitimate criticism and/or behaved in a way which
12.1.1 was apt to provoke justified anger, and/or
12.1.2 could legitimately be regarded as hypocritical and not motivated by the concerns she had expressed for the safety of women MPs,
having regard to her own exploitation of the parliamentary Expenses System which included milking the system, and was disreputable, or dishonourable, or morally wrong."
"Even if the reference to the Claimant having to pay back £25,000 was wrong, and even though there is no basis for attributing an insincere motive to the Claimant in putting her name to the letter, he argues that there is still a possible defamatory meaning which the defendant should be allowed to defend by way of fair comment. His case is that right-thinking members of the public would be fully entitled to feel angry at the Claimant, (and, I assume, the other signatories) purely because they should simply 'shut up' and not hold forth at all on the subject of expenses. In particular, people are entitled to be cross at their opposing or criticising any of the recommendations to be found in the Kelly report. This may seem a little harsh. The question is, however, whether the article is capable of bearing that meaning and, if it is, whether there is a viable defence of fair comment in respect of it."
"43... The words do plainly mean that people might react with anger to her public pronouncement [there is proposition (1)] and, as I have indicated, that is a view which could honestly be held by some people in the light of her having taken advantage of the old system. Indeed, I would go further. I cannot see that a jury could realistically come to any other conclusion about that [there is proposition (2)]."
"36. The factual basis for such a comment would not involve having to show that the Claimant had made claims of 'virtue' or that she had a secret motive. It would simply consist of the bare fact that she had taken advantage of the expenses system (and, in particular, by making a capital gain on a subsidised constituency home and/or being reimbursed the cost of travel to and from her homes)...
39. Party leaders in the wake of the expenses 'scandal' were effectively telling MPs to 'shut up' on the subject and to take their medicine. Even though some suggested at the time that this may have been governed by electoral or public relations considerations, rather than by principle or natural justice, it illustrates how difficult it now is in this context to argue that no reasonable citizen could feel legitimate anger at the behaviour of their elected representatives. This is not, of course, specific to Mrs Lait. It would apply to each and every one of her co-signatories (as well as most other MPs). In the case of each MP, there will have been his or her own expenses claims, and they will no doubt differ considerably; yet the criticism is not based wholly on individual figures but largely upon the suggestion that, merely by taking advantage of the 'overly-generous' system, they have forfeited the right to be heeded any longer on that topic.
40. For these reasons, a jury of 12 citizens, which would no doubt include voters and taxpayers, could (at the least) come to the conclusion that, notwithstanding the failure to establish hypocrisy, the rather ill-formulated observation about justifiable 'ire' constitutes fair comment."
"33. Since, as I ruled last March, 'hypocrisy' is a defamatory meaning of which the words are capable, one might well think it should be left to a jury to rule at trial whether in fact they do bear that meaning. If it is upheld, then on the present pleading it seems to me that the Defendant would be unlikely to make good that specific charge. It might thus seem to follow that it cannot succeed in its submission that the defence is bound to be upheld. Its fate could depend on the meaning the words are ultimately held to bear.
34. Yet things cannot, in my view, be quite that simple. I need to consider whether the other pleaded meaning would have a better chance of success. Mr Warby seemed in argument to place most reliance on the alternative argument that people may well be angered by the Claimant's putting her signature to such a letter, not so much because of hypocrisy, but because MPs who had claimed expenses under the old system (i.e. virtually all of them) should slink away in shame and keep their mouths shut at least in relation to proposals for reforming expenses."
Then part of paragraph 42:
"42... If the only meaning relied upon was that the claimant had been a hypocrite, it would be possible to rule that neither justification nor fair comment could succeed, since the necessary factual substratum is missing. On the other hand, a jury could come to the conclusion that the words bore the alternative defamatory meaning [sc. the shut up meaning] along the lines of Mr Warby's argument."
Finally on proposition (3), the first half of paragraph 43:
"One possible approach would be to leave it to the jury to decide if the words bore the meaning of hypocrisy or not. This seems to me to be unduly theoretical. It is not a case in which 'hypocrisy' could be held to be the only defamatory meaning. If the jury came to the conclusion that the words did carry that imputation, this would not of itself entail success for the Claimant, since the alternative defamatory meaning [sc. the shut up meaning] would survive."
"45. Would it be realistic to suppose that a jury would conclude that the defence of fair comment succeeds in relation to Mr Warby's alternative meaning but decide, nevertheless, that the Claimant should be compensated for an additional unsubstantiated implication of hypocrisy? It seems to me that the answer must be in the negative. In any case, it would make no sense for further time and large sums of money to be spent on resolving that theoretical point."
"... In this case specific reliance is placed on the available facts about the Claimant's expenses. It is pointed out that she made a capital gain on her Beckenham flat and, despite having had substantial contributions to her mortgage interest payments, she has not volunteered to make over any of the gain to the taxpayer (except, of course, through capital gains tax following disposal). It so happens that she was not 'forced' to do so. While it is accepted that she is under no legal obligation to do this, the retention of the capital gain is nevertheless characterised as 'milking' the system in an unacceptable (or 'disreputable') way. This seems to me to be the real sting of the mistaken allegation of fact (i.e. being 'forced' to pay back £25,000). It is not so much that the MP in question was forced to pay the money over rather that the profit had been made with the taxpayers' help and not voluntarily disgorged."
And at paragraph 47:
"47... Moreover, there is nothing left in the complaint about the factual error over the £25,000, since the defamatory sting is that the Claimant made a profit on the sale of her flat with the aid of subsidised mortgage payments but had not been willing to forego it. That remains available to the Defendant as a factual substratum, even though the Claimant was not 'forced' to refund the taxpayer either by her party leader or anyone else. Those basic facts go to support the defamatory comment identified above."
THE APPELLANT'S CASE
HONEST COMMENT AND THE SINGLE MEANING RULE
"The first thing to be considered is, what are the questions which in such a case ought to be left to the jury. The first question to be left to them is, what is the meaning of the alleged libel?"
And at 281:
"I cannot doubt that the jury were justified in coming to the conclusion to which they did come, when once they had made up their minds as to the meaning of the words used in the article, viz. that the plaintiffs had written an obscene play, and no fair man could have said that."
Likewise Bowen LJ at 282:
"We must begin with asking ourselves, what is the true meaning of the words used in the alleged libel?"
These observations only make sense on the footing that the court was applying the single meaning rule in its assessment of the honest comment defence. It is true that there is no overt discussion in the judgments of the rule, nor indeed any reference to it. The report of the argument suggests that it was not referred to by counsel either. It was applied as a matter of course.
"Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be 'right' conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the 'right' meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law confides the responsibility of determining it...
Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel...
Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the 'right' meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single 'natural and ordinary meaning' which is 'right', survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel."
THE MEANING OF THE WORDS COMPLAINED OF
THE ISSUE IN THE CASE
PRIVATE RIGHT AND PUBLIC INTEREST
"There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more pro-active. The second is the coming into effect of the Human Rights Act. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged."
Then at paragraph 57:
"In Schellenberg v BBC  EMLR 296 the claimant had settled defamation actions against the Guardian and the Sunday Times on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC. Eady J struck this out as an abuse of process. He rejected the submission that he should not do so as this would deprive the claimant of his 'constitutional right' to trial by jury. He said:
' I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile.'
He added that the overriding objective's requirement for proportionality meant that he was bound to ask whether 'the game is worth the candle'. He concluded:
'I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources.'"
At paragraph 58 Lord Phillips indicated that Eady J's approach in Schellenberg had been approved by this court in Wallis v Valentine  EMLR 175, and the court clearly echoed that approval in Jameel itself. At paragraph 69 Lord Phillips said:
"If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick."
"Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved."
"The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to
(a) the extent to which
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published..."
CONCLUSION IN THIS CASE
Lord Justice Longmore:
The Master of the Rolls: