KING'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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DALE VINCE |
Claimant |
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- and – |
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ASSOCIATED NEWSPAPERS LIMITED |
Defendant |
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Antony White KC (instructed by RPC (Reynolds Porter Chamberlain LLP)
for the Defendant
Hearing date, 5 March 2025
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Crown Copyright ©
MR JUSTICE SWIFT
A. Introduction
(1) The article published
"1. Sir Keir Starmer was left embarrassed yesterday after repaying a £100,000 donation to a high-flying City financier accused of sex harassment.
2. The Labour leader was forced into a humiliating climbdown after being accused of 'hypocrisy' for accepting the cash despite the allegations against Davide Serra.
3. Mr Serra, the boss of a multi-billion-pound asset management firm in London, made four £25,000 donations to Labour during the first quarter of this year, it emerged in official figures released yesterday.
4. And Labour faced further embarrassment yesterday when businessman Dale Vince, who has donated £1.5 million to the party, joined an eco-protest in London with Just Stop Oil, the group he is helping bankroll.
5. The party pocketed Mr Serra's money despite accusations that the 52-year-old married chief executive made 'wholly inappropriate' comments on the size of a female colleague's breasts.
6. A tribunal also heard he told clients that Jolanda Niccolini, his now former head of business development and investor relations, would do anything for them – 'including prostitute herself'
7. Mr Serra's firm was ordered to pay £32,000 in compensation by a tribunal judge last month after Ms Niccolini successfully sued for sex harassment and victimisation. Labour has decided to repay the £100,000 donation after the Daily Mail highlighted the case. It is understood it did not know about it before being alerted to it by this newspaper.
8. Earlier, Tory MP Craig Mackinlay said 'if [Sir Keir] had principles he would hand the money back, otherwise it's hypocrisy'
9. In central London yesterday, Mr Vince joined JSO activists who were blocking traffic around Parliament and Trafalgar Square.
10. Some suspect he may have influenced Sir Keir's pledge to block new North Sea oil and gas exploration if he wins the next election.
11. Mr Vince said 'I'm here to support the incredibly brave people of Just Stop Oil. I can't imagine it will make much difference to Keir Starmer, he's his own man and so am I'
12. Tory Party deputy chairman Nickie Aiken said: 'As if it wasn't already clear enough, Labour's big bankrollers and policy paymasters are the eco-fanatics themselves.'"
"Road blockers: Dale Vince in London yesterday, and circled as he holds up traffic with Just Stop Oil."
There was no photograph of Mr Serra.
(2) Mr Vince's claim in these proceedings
"15. The processing complained of – publishing to a very large readership with a suggestion (particularly to readers who only read part of the Article) that the Claimant was the Labour donor who was accused of sexual harassment – was unfair because it was unexpected and unduly detrimental, without justification for the adverse impact. It created a misleading impression in the minds of those receiving the personal data.
16. The Claimant reasonably expected that the Defendant would not publish serious falsehoods or connect his name and photograph to serious allegations by juxtaposing the photograph and caption with the headline as the Article did, and that it would not use his personal data in ways that would have an unjustified adverse effect on him.
17. In respect of the Mail+ version of the Article, the unfairness of the Defendant's processing of the Claimant's personal data continued until the Mail+ article was edited to separate the headline from the Claimant's photograph and his name in the photograph caption. The unfairness was not remediated in the print edition of the newspaper or the facsimile published under licence by PressReader, although the latter was deleted at the Claimant's request on 17 October 2023.
Loss & Damage
18. By reason of the unfair processing of personal data by the Defendant, the Claimant has suffered damage in the form of non-material harm, including non-material harm to reputation.
19. Further, the Claimant has suffered material harm by reason of the publication of the statement complained of, namely the costs incurred by his solicitors, Brett Wilson LLP, in attempting reasonably to mitigate the Claimant's loss by seeking to persuade PRIL to take down the statement complained of from the PressReader platform. The material harm incurred to date [is] £903.50 …"
In these proceedings, therefore, Mr Vince claims damages for financial and non-financial loss.
(3) The applications
B. Decision: Associated Newspapers' application to strike out the claim.
(1) The parties' contentions
"4. The statement complained of expressly referred to and/or identified the Claimant by name and by photograph. Further, the headline refers to Labour repaying £100,000 to a donor to the party, and as pleaded in paragraph 1 above, the Claimant has made and is widely known to have made substantial financial donations to the Labour Party.
5. By innuendo, for the purposes of the first sentence of the CPR PD 53B, paragraph 4.2(4)(b), the statement complained of was reasonably understood by a substantial but necessarily unquantifiable number of readers of the article to mean that the Claimant was guilty of, or had reasonably been accused of, sexual harassment, such that the Labour Party had repaid the claimant a £100,000 donation he had made to them.
6. Further, for the purposes of the second sentence of CPR PD 53B, paragraph 4.2(4)(b), the relevant extraneous facts known to the readers referred to in paragraph 5 above by reason of their knowledge of which they were caused to understand the statement complained of to convey the inuendo meaning defamatory of the Claimant identified in that paragraph, were that headlines, prominent photographs, and captions to such photographs appearing in articles published in the mainstream popular UK press summarise and encapsulate in an accurate and informative way what is going to be said in the rest of the article, such that they knew they did not need to read any further than that to understand what the article was saying."
"Finally, our client's name and all information about him (including his image and false allegations of wrongdoing) are his personal data as defined by Article 4(1) of the UK GDPR. By publishing such information, ANL has processed our client's personal data … That processing was and is, unlawful in that:
(a) it constitutes a libel and malicious falsehood
(as above); and
(b) none of the lawful grounds for processing set out in Article 6 of the UK GDPR apply, and our client did not, (and does not) consent to the processing.
As a result, the processing is also a breach of article 5(1)(a) of the UK GPDR.
Moreover, the processing is clearly for an illegitimate purpose, and is inaccurate, unfair, and excessive, and is therefore also in breach of Articles 5(1)(b) – (e) of the UK GDPR."
"We make the following points in response:
- For the reasons set out above the Article did not constitute a libel or a malicious falsehood and as such the processing of your client's data was lawful for that reason.
- Our processing of your client's data was lawful, fair and accurate. The Article accurately reported your client's donations to the Labour Party and his Just Stop Oil activism. Your client makes no complaint in that regard.
- We are entitled to rely on the journalistic exemption. We note that in assessing whether continued publication is in the public interest we must take account of the "special importance of the public interest of the freedom of expression in information" and the Editor's Code Practice.
- We note that your client's accuracy complaint to IPSO was rejected. The Article did not constitute a breach of Editors' Code.
- The Article reported matters of clear public interest mainly the issue of the Labour party receiving donations from one individual who had been accused of sexual harassment and another (your client) who was joining a protest by the controversial Just Stop Oil group stopping traffic moving in central London.
- The Article included your client's response."
"You have not sufficiently engaged with our client's data protection claim. Taking your client's case at its highest, you appear to be suggesting that the juxtaposition of the toxic headline against images of our client and the identifying tagline is fair and a lawful use of our client's personal data. Plainly it is not. Even if what you say about meaning/the accuracy of the publication overall is correct (which is disputed), the libel, malicious falsehood and UK GDPR claims do not stand or fall together (as indicated above). The juxtaposition on its own is an obvious breach of the UK GDPR which is compounded by ANL's decision to circle our client's face in one of the photographs.
You make the bald statement that you are entitled to rely on the journalistic exemption and that "in assessing whether continued publication is in the public interest we must take account of the further "special importance of the public interest" in the freedom of expression in information". This reads like a templated response with no attempt to explain how, in the instant case, the exemption is applicable. It is trite law that there is no public interest in false information, and again, putting your case at its highest, ANL cannot seriously be suggesting that it reasonably believed (and still believes) that the juxtaposition is in the public interest."
In a further letter dated 27 July 2023, Associated Newspapers restated its position on the proposed UKGDPR claim.
"Our position on the UKGDPR complaint is clear. There is no false information. Your client is a major donor to the Labour Party and was photographed in a public place protesting with Just Stop Oil and blocking the traffic in central London. Our firm belief is that the publication of the Article was (and remains) in the public interest and we have no doubt that a court would find that belief to be reasonable. …"
"As you will know, this claim was foreshadowed in the Letter of Claim dated 26 June 2023, albeit it is now limited to a claim of unfair data processing contrary to Article 5(a) of the UK GDPR.
Whether the Claim Form is served will likely be influenced by the outcome of your client's extant application in the libel proceedings (Claim No. KB -2023-003818). Accordingly, we do not consider it necessary or proportionate to enter into dialogue about the new claim about this stage."
Thus, the prospect of the UKGDPR claim was raised again only after the strike out application had been heard and judgment reserved. Associated Newspapers submits it is clear from the 6 June 2024 letter that the UKGDPR claim had been held in reserve to be deployed in the event the defamation claim failed. No sufficient explanation to the contrary has been provided in response to this application to strike out. That tactic, drip-feeding claims one after the other, is significantly different from any normal use of the court's process and, in the absence of explanation, is an abuse.
(2) Conclusion
"… The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before."
The importance attaching not only to whether the later claim "could" have been brought with the earlier one but also to whether it "should" have been so brought was conveniently summarised by Clarke LJ in his judgment in Dexter Limited v Vlieland-Boddy [2003] EWCA Civ 14:
"49. The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co [2002] 2 AC 1, can be summarised as follows:
i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.
ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.
iii) The burden of establishing abuse of process is on B or C or as the case may be.
iv) It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.
v) The question in every case is whether, applying a broad merits-based approach, A's conduct is in all the circumstances an abuse of process.
vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C."
It follows that while "could have been raised" is a threshold issue, "should have been raised", the broad merits-based consideration of all circumstances, is the determinative issue.
"29. … these references show that the possibility of a future claim for malicious prosecution hung, like Banquo's ghost, over the hearing, with everyone aware of it to some degree or other but no-one, for whatever reason, prepared to articulate the point expressly. Perhaps both sides saw an advantage in this sort of shadowboxing, although that is not the way to conduct litigation in the twenty-first century."
Then, in October 2020, the claimant commenced a second set of proceedings against the defendant claiming damages for malicious prosecution. That claim was struck out applying the principle in Henderson. By that time the claim for damages in trespass remained outstanding; it had not been determined by the court. The Court of Appeal reversed the decision to strike out on the Henderson Ground. The leading judgment was given by Coulson LJ; the material part of it is as follows.
"48. I am in no doubt that the rule in Henderson v Henderson has no application to the facts of the present case. That is because there was no relevant determination by DJ Stewart which could legitimately prevent the appellants' subsequent pursuit of the malicious prosecution claim.
49. At the time of the hearing before DDJ Payne, there was a trespass claim which had not got beyond the pleading stage, and a later malicious prosecution claim, arising out of the same incident (but with many different features), which had also not got beyond the pleading stage. There had been no determination by the court of any substantive issue. The appellants could not be accused of trying to go behind some earlier determination of the court, because there had not been one. The only determination that DJ Stewart made was allowing the appellants permission to re-amend the trespass claim. On the face of it, that had nothing to do with the existence or otherwise of the separate malicious prosecution claim, which had not even been commenced.
50. On that basis, therefore, it is impossible to see how the rule in Henderson v Henderson could have any general applicability to this case. It might be different if the trespass claim had been fought through to a trial and been determined by the court by August 2020. In those circumstances, the commencement of the malicious prosecution claim in October 2020 may well have fallen foul of the rule, because it could and should have been raised before the trespass trial. But that was all a long way off in August 2020, when the trespass claim had not got beyond the pleading stage, and the only determination was the permission to make some re-amendments."
"81. … As this label ("a thing adjudicated on") indicates, the essence of the principle, like other aspects of res judicata, is that once a particular matter has been determined by a court, that may preclude a party from having a second go. Or to put it in colloquial terms a litigant is entitled to their day in court, but once they have had it, is not in general entitled to a second bite at the cherry.
…
83. The cases show that the Henderson v Henderson principle is a very flexible one. In Henderson v Henderson itself the issue was whether a claim could be brought in England for items said to be due on an account where there had already been an account taken in previous proceedings in Newfoundland in which those items could have been raised but were not. In Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 a mortgagor sought unsuccessfully to avoid the exercise by a mortgagee of a power of sale in two successive actions, contending on the first occasion that the sale was a sham and that there was no real sale, and on the second that the sale was fraudulent. That was undoubtedly a different claim but if it was going to be taken at all it should have been taken in the first set of proceedings. The doctrine can apply even though the second claim is brought by a different party (as was the case in Johnson v Gore Wood), or against a different party (as in Aldi Stores v WSP Group), although in fact in each of those cases the second claim was not found to be abusive. Whether in any particular case the second claim is abusive depends on whether it not only could but should have been brought first time round, and that requires a broad merits-based judgment as explained by Lord Bingham in Johnson v Gore Wood.
84. But what all the cases have in common is that the second claim is an attempt to reopen something that has already been decided. That is where the abuse lies. That does not mean there must have been a trial of the first claim. The principle is capable of applying if the previous proceedings have been settled by agreement. A settlement by the parties is just as much a final resolution of a claim as a judgment by a court, and it can be just as abusive to seek to circumvent it by putting forward a second claim. The principle is also capable of applying where there has been an interlocutory decision in the very same proceedings, as illustrated by the case referred to by Coulson LJ in paragraph 46 above of Seele v Tokio (in fact a decision of his own although he modestly does not say so). But if there has not been any previous decision, there is nothing for the principle to bite on. It cannot be said that a litigant is being abusive in seeking to have a second bite at the cherry if they have not yet had their first."
"18. First, it is important that Aldi had not behaved in any way that was culpable, let alone improper, even though neither impropriety nor culpability is a necessary finding before a claim can be struck out. Aldi had made a judgment that it would be in its interests to try and make a recovery against excess layer underwriters on the judgment that it had obtained rather than to continue to participate in the action by bringing claims against WSP and Aspinwall. In my view that was a decision which was open to Aldi as a sensible and cost effective way of proceeding in the light of the fact that (a) the trial of the Aldi Part 20 claims and the B&Q and Grantchester actions would last several weeks; (b) the costs would be considerable, given the fact there were 8 separately represented parties; (c) the issues which WSP and Aspinwall were raising on their liability and on quantum were issues that Aldi had not been concerned with in its claim against Holmes; (d) the interest of Aldi in monetary terms was a fraction of that of B&Q. Aldi had been singularly successful in the strategy it had pursued against Holmes and its success was a factor which the judge failed to take into account in judging Aldi's decision on its strategy.
…
25. Furthermore, there is a real public interest in allowing parties a measure of freedom to choose whom they sue in a complex commercial matter and not to give encouragement to bringing a single set of proceedings against a wide range of defendants or to complicate proceedings by cross-claims against parties to the proceedings. That freedom can and should be restricted by appropriate case management."
C. Decision: the applications for summary judgment.
"It is precisely the application of the principle so clearly expounded in these passages which, in a libel action where no legal innuendo is alleged, prevents either side from calling witnesses to say what they understood the allegedly defamatory publication to mean. But it would surely be even more destructive of the principle that a publication has "the one and only meaning that the readers as reasonable men should have collectively understood the words to bear" to allow the plaintiff, without evidence, to invite the jury to infer that different groups of readers read different parts of the entire publication and for that reason understood it to mean different things, some defamatory, some not.
Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralise it but also on the manner in which the whole of the relevant material is set out and presented. But the proposition that the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines, is to my mind quite unacceptable in the light of the principles discussed above.
I have no doubt that Mr. Craig is right in his assertion that many "News of the World" readers who saw the offending publication would have looked at the headlines and photographs and nothing more. But if these readers, without taking the trouble to discover what the article was all about, carried away the impression that two well-known actors in legitimate television were also involved in making pornographic films, they could hardly be described as ordinary, reasonable, fair-minded readers."
"7. The claimant acknowledges that upon reading the text of the Article, the ordinary reader would appreciate very quickly that he was not the person being accused of sexual harassment.
8. The claimant does not, therefore, allege in his Particulars of Claim that the words complained of were defamatory of him in their natural and ordinary meaning. He does, however, plead a meaning by way of innuendo.
…
12. The claimant's innuendo case is pleaded as follows:
a. The "statement complained of" in the proceedings comprises the headline, two photographs and a caption, but not the text of the article.
b. It is said that a substantial but necessarily unquantifiable number of readers knew certain "extraneous facts", namely that: "headlines, prominent photographs, and captions to such photographs appearing in articles published in the mainstream popular UK press summarise and encapsulate in an accurate and informative way what is going to be said in the rest of the article, such that they knew they did not need to read any further than to understand what the article was saying".
c. A substantial number of readers would have read the "statement complained of" in the knowledge of the 'facts' identified in (b) above. Those readers would have understood that the newspaper was saying that he was "guilty of, or had been reasonably been accused of, sexual harassment, such that the Labour Party had repaid the claimant a £100,000 donation that he had made to them".
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24. Mr Busuttil says there is no principle in English law, derived from Charleston or otherwise, to the effect that innuendo readers of a defamatory article – in contrast to 'natural and ordinary' readers – must be taken to have read the whole article if they are to be regarded as reasonable readers, regardless of their special knowledge or characteristics. He says innuendo readers with special knowledge or characteristics which have caused them to read the text differently must be taken to have read only what they have read, and to have read it reasonably.
25. The claimant's case is, therefore, focussed on what Mr Busuttil says is a special class of readers (owing to their special characteristics and knowledge), how they go about reading defamatory material and whether they read all, or only some, of the material presented to them.
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40. I cannot see any principled basis for the principles in Charleston not being applicable in in this case. The House of Lords considered the position of readers who only look at headlines and photographs, referred to by Lord Bridge at 70C as "limited readers". For the reasons already outlined, the House of Lords established a clear principle which has been applied consistently in the Court of Appeal and the High Court. Whilst Mr Busuttil is correct in highlighting that the House of Lords referred in places to innuendo claims, in in each of the examples given, the court was summarising a legal principle that would not apply in the same way to innuendo cases. There is nothing in the judgment to suggest that the Court was saying that the core point under consideration would not apply in an innuendo case.
41. It follows that I am certain that this claim is bound to fail, even assuming that the claimant can establish that this is a true innuendo claim and prove the key facts upon which the claim is based. The principle in Charleston is binding on this court, meaning that the headline, photos and caption must be read together with the article. Taken together, it is agreed that the article was not defamatory of the claimant at common law, and so the claim must fail."
"83. … I do not regard the principles identified in Charleston as artificial. Nor do I think them inapposite in the present context. They have been developed over centuries to meet the needs of a cause of action that addresses issues arising from the publication of words and their impact on reputation. Mr White's submissions also have two other virtues. They find support in domestic authority. In Lord Ashcroft v Attorney-General [2002] EWHC 1122 (QB) [22] Gray J held it arguable that ostensibly innocent words might convey a secondary, inferential meaning which embodied sensitive personal data about an individual to the effect that he was involved in money laundering (see Tugendhat & Christie, op. cit. at 7.25). In Quinton v Peirce [2009] EWHC 912 (QB) [2009] FSR 17 [27]-[29], [92] Eady J applied the single meaning rule when assessing whether data were inaccurate within the meaning of the Fourth Principle. In addition, the defamation rules seem well-adapted to testing whether the words satisfy the Working Party criterion of giving "an inaccurate, inadequate or misleading impression of an individual".
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87. It seems to me legitimate to have regard in this context also to the contours of the English law of defamation, which has always allowed a generous latitude to those reporting proceedings in Court or in Parliament, going so far as to permit reporting which conveys the "impression" of the journalist (see, e.g., Cook v Alexander [1974] 2 QB 279, CA). It would be wrong to treat the two branches of the law as co-terminous, as they not only have different origins but also serve different purposes. It is possible to give more weight to literal accuracy in the context of data protection law, with its broader aims and its wider and more flexible range of remedies. It is appropriate, however, to bear in mind domestic principles in order to ensure, as far as possible, that the law has the "coherence" to which Lord Sumption referred in Khuja."
Thus, in the context of the claim in that case, principles developed in defamation, including the rule in Charleston, had some bearing on assessment of whether the personal data had been processed accurately.
"74. If the single meaning rule is applied for purposes of (i) identifying personal data and/or (ii) interpreting the ambit of that data, a question arises as to how that interrelates with the issue of fairness. In Slim v Daily Telegraph [1968] 2 QB 157, at 187 Salmon LJ cited a case in which "It was there held that the words complained of were incapable of meaning to ordinary men that the bank was in financial difficulties, yet they caused a run on the bank, whose customers, presumably, were ordinary men". No doubt, that is an extreme example. However, what if the Court determines for the purposes of the claim of inaccuracy that the natural and ordinary meaning of the data is innocuous, but readers, or some readers, of the data in fact react to it in a manner that is very adverse to the data subject? Does that have the effect that when addressing the claim of unfair processing, the Court is tied to the natural and ordinary meaning that it has found in respect of the inaccuracy claim? If so, it seems to me that might produce an unduly fettered approach to the issue of fairness. Or does it have the effect that when addressing the issue of fairness, the Court is not precluded from having regard to the reality of the matter? If so, that would seem to me to be consonant with achieving the correct approach on the issue of fairness, but how comfortably would that sit beside the conclusion on inaccuracy?"
Thus, the suggestion is that to apply a rule such as the one in Charleston, that what is published must be considered as a whole, to decide claims under UKGDPR, could produce artificial outcomes. However, whether that might be so rather depends on the substance of the complaint that is being pursued as the complaint under the UKGDPR. Ultimately (at paragraph 79 of his judgment) the Deputy Judge concluded that "fairness is a broad and flexible concept, and it is possible to take account of all the circumstances when determining it".
D. Disposal
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