England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 July 2010

Mr Justice Eady :

1. The Claimant in these proceedings is suing the Defendants for libel said to have been contained in articles published in the Express and Echo, which is a local newspaper circulating in Devonshire. The claim was launched on 8 January of this year and the proceedings were served in March. So far, no defences have been served pending the outcome of this application, whereby the Defendants seek a ruling from the court pursuant to CPR 53 PD4 to the effect that the words complained of by the Claimant are incapable of bearing any of the meanings he relies upon, or indeed any other meaning defamatory of him. If successful, the intention is to strike out the particulars of claim or to seek summary judgment.
2. In any event, there is also an application to remove the Fourth Defendant, Northcliffe Media Ltd, from the proceedings on the basis that it was not responsible in law for any of the publications complained of. Also, it is said that there is nothing to support a claim for exemplary damages, having regard to the necessary pre-conditions for such a remedy identified in Cassell v Broome [1972] AC 1027.
3. All the applications are supported by a witness statement from Mr Tony Jaffa, the Defendant's solicitor.
4. Mr Wright explained to me that he has apparently been the subject of a campaign by the newspaper, and by the journalist Ms Eleanor Gregson in particular, and that this has led to a great deal of vitriolic abuse directed at him and his family both through websites and to his face in the locality. Nonetheless he has chosen to confine his claim to four articles. Correspondingly, I must direct my attention to those specific articles and to the submissions made by the parties in respect of them.
5. On 9 January 2009, there appeared on the front page of the newspaper the headline "Bobby's dad: 'I'll use fund to buy a mansion'". Although that headline is complained of in the particulars of claim, there is also a subheading ("Cancer kid's cash will be used to pay for £2.5m country retreat") of which no complaint is made. The front page article draws attention to the "full story", which is set out under various headings on pages 4 and 5 of the same edition. These are fairly lengthy, but there is no need for me to set them out in the body of this judgment, since Mr Wright complains of relatively little.
6. Apart from the headline, quoted above, the only other passage of which Mr Wright complains from the front page article is as follows:

"Kevin Wright is using funds raised by thousands of people across Devon to buy the sprawling property near Exeter – which will also be the family home."

7. As to the extensive spread on pages 4 and 5, he only complains of the headline "Bobby Wright's family move to £2.5m home". The thrust of Mr Wright's complaint is that these passages convey to reasonable readers the defamatory meaning that he was about to use money raised for children's cancer treatment to buy and move his family into "a lavish home". One can understand why Mr Wright might take offence at those passages if taken in isolation. But they did not appear alone. The brief article on the front page contains not only, as it were, the bane but also an antidote. It is made clear that Mr Wright was saying that the property in question would be "used as a retreat for sick children". He also stated that the fundraising operation which he had originally launched in order to provide treatment for his young son, but which was subsequently directed towards other cancer sufferers, was to move from its current rented accommodation in the village of Kenn to the new property.
8. These important points are also made inside the newspaper on page 4. Mr Wright is there described as the founder of Bobby's Fund and it is said that he was proposing to buy "a £2.5m country retreat for sick children – paid for out of the organisation's funds". It is also made clear that he insists that he will be paying the organisation rent in order to live, together with his family, at the property.
9. Later in the article, it is stated that the organisation continued to raise cash, despite "negative publicity" (largely in the Express and Echo) and that "the purchase of a retreat was something he had always worked towards". The article continues:

" 'This has always been the next obvious step for the fund,' he said.

Mr Wright says that the retreat will be a place where children suffering from cancer can come and stay with their parents.

They will be given health and lifestyle advice on how to get the most from the child's conventional medical treatment.

…

'This will be a place where families can come down and stay for two or three weeks, and the Royal Devon & Exeter is just up the road,' he said."

10. In the next column, there appear the following quotations:

" 'This is not a Kevin Wright house, it is a Bobby's Fund retreat, although we are operating as a new organisation now.

'I shall be paying rent to live there out of my own money.'

Mr Wright said he owed thanks to the 'people of Devon', whose 'generosity' has helped to pay for the retreat.

…

'Their generosity could go on to help thousands of children.'

Mr Wright said he hoped to open similar retreats in the future.

'Hopefully, it's just the first of many,' he said."

There is more beside, but I do not think it necessary to cite further passages.

11. The second article appeared in the newspaper on 13 January 2009 under the headline "REVEALED". This is followed by the subheading:

"Mansion set to go on market for £3.25m that cancer fund dad is planning to buy up."

The story which is claimed as an "EXCLUSIVE" continues from the front page on to pages 4 and 5, where there appears the following heading:

"It hasn't gone on the market yet and the owners weren't aware of any interest but this is …

The £3.25m country pile that Kevin Wright is planning to buy with Bobby's Fund donations."

Again, the coverage is extensive and accompanied by no less than 13 photographs of various parts of the "mansion".

12. In this instance, Mr Wright complains only of the headlines on page 1 and pages 4 to 5, together with the introductory words on the front page:

"THIS is the multi-million pound country estate where Kevin Wright, founder of Bobby's Fund plans to set up home.

The Echo can exclusively reveal pictures of the property, near Exeter, which Mr Wright is set to buy with cash from the organisation's coffers."

The defamatory meaning attributed by Mr Wright is much the same as in the case of the first article (see paragraph 7 above). It is made clear, however, in the very next paragraph on the front page that "Mr Wright will be paying Bobby's Fund rent for his family to live there". In addition, the following two paragraphs appear on page 4:

"He told the Echo that he also planned to use the estate as the family home for himself, wife Jacqui and seven-year-old son Bobby, in whose name Bobby's Fund was set up.

He said: 'This is not a Kevin Wright house, it is a Bobby's Fund retreat, although we are operating as a new organisation now'."

13. The third article complained of appeared on the front page of the newspaper on 6 November 2009 and it was continued on page 5. On the front page, there was a large photograph of Mr Wright, accompanied by the caption, "COLLECTING: Former Bobby's Fund boss Kevin Wright". It appears immediately under the headline "Kevin Wright in new charity row". There is also a subheading "Report sent to watchdog over fund collectors".
14. Apart from the headline, the only other passage in the article of which Mr Wright complains is the first paragraph:

"FUNDRAISERS working under former Bobby's Fund boss Kevin Wright have been reported to the Charity Commission after carrying out unlicensed street collections, the Echo can reveal."

15. Nevertheless, as part of the context it may be important to include, as context, some of the other paragraphs in what is quite a long article:

"Street collectors from Exeter's Kids Integrated Cancer Treatment (KICT) – set up by a former senior boss of Bobby's Fund – have been fundraising in towns across the country, including Tiverton.

But local authorities claim the charity has failed to apply for legal street collection permits. And now police and officials at the Charity Commission have been alerted to the activities of KICT by a council licensing boss.

Marjory Parish, licensing manager at Mid Devon District Council, claims the organisation has 'misled' the public and is trying to avoid the law.

She has complained about KICT to the charities governing body, which has admitted that it had concerns about the fund.

KICT is registered to an address in Pinhoe Road, Exeter, and is headed by Ian Weir.

…

[On page 5]

Mr Weir was formerly involved in the running of the now disbanded Bobby's Fund, which was investigated by the Gambling Commission.

Bobby's Fund claimed to have raised millions to help young cancer sufferers after it was set up several years ago.

But as revealed in the Echo, it came under fire for not registering as a charity and after admissions from Mr Wright that he had attacked an employee.

And a separate fundraising campaign called Marni's Appeal – set up by Bobby's Fund – was at the centre of a criminal investigation in Nottingham.

Mr Wright previously denied having any links to the new charity KICT. But he has now told the Echo that he is a 'parent advocate' for the organisation who makes donations to the fund.

Workers from KICT have recently carried out several street collections in Fore Street, Tiverton, despite being warned by officers from Mid Devon District Council that they were acting without the required licence.

Ms Parish said that when challenged, KICT collectors who wore clothing emblazoned with the charity's logo, said they were selling pamphlets for a periodical company owned by Mr Wright.

…

[Ms Parish said] 'My officer told them that they would still need a permit.

'They came again a couple of weeks later and said they were selling booklets for a company called Health Truth News owned by Kevin Wright.

'They said that the profits went to this company and that Mr Wright made donations to KICT.

'The collectors were all dressed in their charity clothes and they gave a clear impression they were carrying out street collections for charity but were, in fact, selling booklets for a company owned by Mr Wright.

'It is completely misleading to the public as they believe they are donating to a charity raising money for children with cancer'.

Ms Parish said she contacted police on one occasion requesting that the street collectors be moved on.

And she has confirmed she told Mr Wright that he appeared to be conducting an unlicensed street collection and that his fundraisers could be liable for arrest.

She added that she had contacted the Charity Commission with her concerns.

'I have spoken to the Charity Commission and they have told me that they are uncomfortable with the activities of KICT and that the charity is under observation', she said.

Torbay Council has also revealed that KICT failed to apply for a permit for four days of fundraising carried out in September.

The charity revealed that it had raised £2,500 from collections in Paignton and Brixham.

And Ms Parish claims authorities outside Devon have raised concerns about the fundraising activities of KICT, including a council in Dorset.

Responding to the claims Mr Wright said: 'We have a commercial arrangement between Health Truth News and KICT.

'Health Truth News publishes information and chooses to give its profits to KICT – last month it donated £5,000 to KICT. I don't take any wages from it and earn my money through various other business ventures that I am involved with, including a chemical company and a motorcycle company'.

Mr Weir added: 'These were not street collections, we were trading as news vendors which we can legally do without a permit.

'We are selling something for the money which people give to us – I completely disagree that we are misleading people'.

A spokeswoman for the Charity Commission said: 'We have received a complaint suggesting an unauthorised street collection by Kids Integrated Cancer Treatment has taken place.

'We are currently considering these concerns to determine what, if any, role there may be for us'."

16. The fourth article takes the form of an editorial comment in the same issue of the newspaper, which was clearly based at least partly upon the story from which I have already quoted. The editorial is headed, "Give your cash wisely". Although, on this occasion, Mr Wright complains only of the last four paragraphs, once again it is appropriate to set out the rest of the leader in order to give context:

"MANY Echo readers will be familiar with the name Kevin Wright.

A controversial character, he spent many years raising cash for a cancer fund named after his son Bobby.

That all came to a halt in August last year after the Echo revealed how the organisation was being investigated by the Gambling Commission.

Mr Wright said the 'negative publicity' had made it impossible for him to recruit staff for a fundraising call centre he had been operating and called it a day.

However, since then his name has been linked to another cause, KICT, which, as we report today, is also courting controversy.

Meanwhile, a separate fundraising campaign set up by Bobby's Fund was at the centre of a criminal investigation.

It would seem that despite his altruistic efforts, Mr Wright has developed a habit of attracting the wrong sort of attention to the projects he is involved with.

This may, of course, be pure coincidence but it cannot help any credible organisation to come under the scrutiny of either the Gambling Commission, the Charity Commission or, indeed, the police.

And the latest run-in appears to have been both avoidable and unnecessary.

People wearing clothing emblazoned with the KICT logo carried out several collections despite being told they were working without the required licence.

We should point out that when questioned they named Mr Wright as the man whose company they were working for and it also happens that KICT is run by a former Bobby's Fund associate.

If any picture begins to emerge from all of this it's an incredibly murky one.

Of course, no one is forcing people to donate money to the organisations that Mr Wright has connections with, as loose as they may be, and when it comes to handing over your hard-earned cash there is no shortage of worthy causes.

This newspaper has campaigned tirelessly on behalf of charities such as Dream-A-Way, Elf, Hospiscare, NSPCC and Macmillan, among others.

All are, without exception, run by genuine, caring, honest and dedicated people and in some cases, Dream-A-Way for example, not a penny is paid to the people that run it.

The Echo will continue to work hard for all these charities and you will see them featured in our pages over the months and years to come.

However, there are some causes we would be highly unlikely to ever lend our support to and, without a shadow of a doubt, KICT is one of them."

17. Mr Wright suggests that the limited parts of the third article of which he complains bear the meaning that "the Claimant acted without official sanction and therefore illegally". As to the last four paragraphs of the leader, he pleads the meaning:

"KICT is run by people that are not genuine, caring, and dedicated people … By associating the Claimant in the way it does with KICT the Express and Echo are conveying this defamatory meaning to their publishees about the Claimant."

18. Mr Wright has pleaded, by way of alternative, a legal innuendo to the effect that readers of the newspaper would know that he had engaged in fundraising, not to buy himself a house, but to pay for his son's cancer treatment. Whether or not this adds anything to the natural and ordinary meanings already relied upon is a moot point, but at all events I should assume that some readers would have had the relevant knowledge for this purpose.
19. Before I turn to the parties' submissions on the meaning issue, I should say that the principles of law to be applied by a judge on an application of this kind are very well known, having been set out in a number of relatively recent Court of Appeal authorities, such as Skuse v Granada Television Ltd [1996] EMLR 278; Gillick v BBC [1996] EMLR 267; and Gillick v Brooke Advisory Centre [2001] EWCA Civ 1263. See also Duncan and Neill on Defamation (3^rd edn) at 5.14 to 5.15.
20. Mr Eardley, on behalf of the Defendants, points out that there are contained within the articles allegations about the Claimant and about Bobby's Fund that are undoubtedly defamatory. There are references, for example, to Mr Wright having a "criminal past" (in the first article) and to an ongoing investigation into the Fund by the Gambling Commission and to its being "at the centre of a criminal investigation" (see the fourth article). Yet Mr Wright does not make any complaint about these specific allegations. In those circumstances, submits Mr Eardley, those passages should be disregarded for present purposes. That is right in one sense, of course, but it is important to remember that when the court is assessing whether or not words are capable of bearing any particular meaning(s), they should be read in their context. That is why I have set out above a number of passages from the articles even though Mr Wright does not complain of them. On the other hand, Mr Wright drew my attention to a number of other articles published about him during the course of what appears to be the newspaper's campaign. Some of these seem to have been damaging to his reputation and to have led to a good deal of vitriolic abuse. Nevertheless, these have to be ignored for present purposes and cannot even be regarded as relevant for context.
21. I turn now, therefore, to Mr Eardley's submissions in relation to the first article of 9 January 2009. He accepts that the headlines, if read in isolation, could be taken as suggesting that Mr Wright was planning to use charitable funds for his own purposes. Nevertheless, Mr Eardley reminds me that the reasonable reader is to be taken as having read the article as a whole. When that is done, it becomes apparent that the property in question was to be used as a retreat for sick children. Although Mr Wright and his family would be living there, rent would be paid to the charity. There is no suggestion that this was not an arm's length arrangement or that the rent was not a fair one.
22. I have come to the conclusion that Mr Eardley's submissions are correct and that the words complained of, taken as a whole, cannot be taken as defamatory of Mr Wright in the sense of which he complains.
23. Exactly the same argument arises in relation to the second article, of 13 January 2009, and I would equally uphold Mr Eardley's submissions in that case.
24. The third article is, however, in my view rather different. The headline "Kevin Wright in new charity row", accompanied by the photograph of him, places Mr Wright firmly at the heart of the dispute. I was reminded, in the course of Mr Eardley's submissions, of the memorable opening to Sir George Baker's judgment in Hayward v Thompson [1982] 1 QB 47, 64A in the context of the headline "Two More In Scott Affair". The first sentence of the judgment was "'In' means 'In'". This is not a legal point, of course, but simply a similar headline.
25. Mr Eardley submits that Mr Wright's suggested meaning is strained in two respects. First, he argues that the allegation is not that KICT was in fact guilty of carrying out an unlicensed street collection. At its highest, he submits, it could only amount to an allegation that there was a continuing investigation into the issue of whether KICT required a licence for what it was doing. In other words, as it is sometimes put, this is a Chase level 3 meaning rather than level 1: see Chase v News Group Newspapers [2003] EMLR 218, CA.
26. It would be wrong for me to ignore the allegations in the words complained of to the effect that the fundraisers in question were working "under" Kevin Wright. That is capable of conveying the notion that they worked at his direction and that he was responsible for their behaviour. Secondly, the allegation is not that they were merely being investigated, but rather that "the Echo can reveal" certain matters – which the reader might reasonably take to be established fact. One of those matters is that the fundraisers in question actually carried out unlicensed street collections.
27. I should be exceeding my function if I were to rule that a jury would be perverse to find that the headline and introductory paragraph bore a meaning defamatory of Mr Wright.
28. Mr Eardley also submits that the article is incapable of being read as alleging that Mr Wright was responsible for the activities of KICT – for the reason that KICT is expressly described as having been "set up by" and "headed" by Ian Weir. Mr Eardley suggests that "the overwhelming message of the article as a whole is that any illegality has been committed by KICT" rather than by Mr Wright.
29. That seems to me a difficult argument to sustain at this early stage of the litigation, in light of the article as a whole. How can one confidently say that a reasonable reader would distance Mr Wright from the allegations in the article, having regard to the content of the headline, which puts him at the centre of the "charity row", alongside his photograph, and when the unlicensed street collections are said to have been carried out "under" him? Again, I think I would be wrong to deprive Mr Wright of the verdict of a jury on this issue.
30. Mr Eardley submits that there is no sinister significance in the last four paragraphs of the editorial of which, only, Mr Wright has chosen to complain. Mr Eardley argues that for a newspaper to endorse one charity over another would not, in itself, amount to defamation of the second charity or those who run it. But it is necessary to read the editorial in the context of the article upon which it was clearly based and also to have in mind the earlier passages in the editorial itself (the first paragraph of which refers expressly to Mr Wright). Moreover, the contrast is clearly being drawn between those who run the other charities which the newspaper does support as being "genuine, caring, honest and dedicated people". One hardly has to read between the lines to get the unsubtle message that readers should beware of handing over their "hard-earned cash" to KICT or any other charity or organisation linked to Mr Wright.
31. Mr Eardley placed some weight on the fact that the editorial refers to Mr Wright's "altruistic efforts", but I do not think a jury would be perverse to conclude, from the tone of the editorial as a whole, that this phrase was being used with heavy irony. Mr Eardley argues that the reference to Mr Wright's "altruistic efforts" renders it "impossible to read the comment as questioning [Mr Wright's] sincerity, dedication or care". I cannot accept that argument.
32. Nor, in my judgment, would a jury be perverse to conclude that the contrast drawn with the other people, who were "genuine" and "honest", conveyed the message that Mr Wright (along, no doubt, with KICT) was purporting to be something he was not.
33. He also submits that the reader will appreciate that there could be many reasons why the newspaper might not wish to support KICT – even though it may well be run by people who are genuine, caring and dedicated. He suggests that the obvious reason for the newspaper's lack of support for KICT is the fact that it was run by a former associate of Bobby's Fund – said to be under investigation by both the Gambling Commission and the police. It is important to note, he suggests, that those allegations are not complained of by Mr Wright in these proceedings. As I pointed out earlier, however, the fact that something does not form the subject-matter of a libel complaint in itself does not mean that it should be ignored for the purposes of context.
34. I have therefore concluded that the third and fourth articles, both published on 6 November 2009, are capable of bearing defamatory meanings of Mr Wright and should not, therefore, be struck out. Nor, for that matter, do I regard Mr Wright's pleaded meanings as in themselves being vulnerable.
35. The outstanding matters to be considered are the claim against the Fourth Defendant and the pleading of exemplary damages. The evidence of Mr Jaffa is unequivocal: he states that at the material time the Fourth Defendant had nothing to do with the publication of the newspaper and cannot be fixed in law with responsibility for the words complained of. Mr Wright explained to me how he came to bring in the Fourth Defendant and showed me extracts from its website, but that is not sufficient to refute or undermine Mr Jaffa's evidence in this respect. Accordingly, the Fourth Defendant should be removed from the claim.
36. Finally, as to exemplary damages, there is nothing in the pleading which would justify a claim for this unusual form of relief. In particular, there is nothing to support the proposition that any of the Defendants made a calculation that there was more to be gained financially, or in any other way, from publishing the words complained of than would be lost through having to pay damages for libel.
37. As I have said, Mr Wright referred me to a number of publications in the newspaper containing allegations which would appear to have whipped up anger and resentment among the readers. In particular, he cited an article published on 10 January 2009 (i.e. between the first and second articles complained of in these proceedings). The heading was "Use of Bobby's Fund cash on £2.5m home angers Echo readers". Whether he wishes to apply for permission to amend his particulars of claim to add this article, or indeed any others, will be a matter for him to consider. He would have now to grapple with a limitation argument. For the moment, however, these allegations have not been the subject of complaint and, accordingly, I have excluded them from consideration for the purposes of the present applications.