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
		09/05/2011

Mr Justice Tugendhat:

1. In the issue of the Sunday Telegraph dated 31 May 2009 the Defendant ("the Telegraph) published three articles, on three separate pages, each of which Mr Cook claims was defamatory of him. The first of the three articles is headed "MP claimed £5 for church collection" ("the front page article"). The second is under the title "I'm sorry, church claim was unfair" ("the page 2 article"). The third is under the title "COMMENT AND ANALYSIS - Now it is the people's turn to be heard" ("the Leader").
2. The words complained of and the meanings attributed to them by the parties are set out in paras [6] to [16] of my first judgment in the same case [2011] EWHC 763 (QB) (29 March 2011). By Order dated 29 March I directed, with the consent of the parties, that the following issues be determined as a preliminary issue by myself without a further hearing:

i) The meaning of the words complained of;

ii) Whether any meaning is defamatory of Mr Cook; and

iii) In relation to any meaning held to be defamatory, whether it is comment or a statement of fact.

The applicable legal principles

3. In Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2010] EMLR 25 I concluded that a publication is defamatory of a claimant if it substantially affects in an adverse manner the attitude of other people towards him, or has a tendency so to do.
4. In Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at para [14] the Court of Appeal summarised the principles to be applied by the court in deciding whether a publication is defamatory as follows:

(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question Jeynes…."

5. It is also necessary to consider what distinction the law draws in this context between statements of fact and comments. In para 43 of my first judgment I included the following:

"The elements of the defence of honest comment are authoritatively set out in the judgment of the Supreme Court in Spiller v Joseph [2010] UKSC 53 [2010] 3 WLR 1791 at paras [3], [4] and [105] as follows:

"…. [ii] Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26:

'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.' "

6. At para 48 I said:

"Further, it has long been recognised (as Eady J put it in a passage quoted in Spiller at para [26]) that:

'the defence is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear they are not objectively verifiable: see eg Gatley on Libel and Slander, 11^th ed (2008), at para 12.7. For example, where a conclusion is expressed by the commentator in circumstances where it is obvious to the reader that he cannot know the answer (eg in relation to someone's secret motives), it would be taken as comment rather than fact.'"

7. I then went on to cite the passage from Lord Phillips' speech in which he recognised that a statement even of verifiable fact has been held to be comment where it is clear that it is an inference (Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109), as to which Lord Phillips expressed some caution. Mr Price submits that I should not myself hesitate to follow such cases as a result of those words of caution. The proposition is established, and he cites a number of cases, some of which are discussed in Duncan & Neill on Defamation 3^rd ed paras 13.14 ff. I accept that if it is clear that the imputation in question is an inference, then it will be a comment, whether or not it is otherwise verifiable. But the fact that an imputation is objectively verifiable is a factor to be taken into consideration in deciding whether the defendant has made clear that it is an inference and so a comment.
8. In my first judgment at para [12] I set out that the meanings attributed by Mr Cook to the front page article and the page 2 article are the same, namely:

"(i) the Claimant represented low "value-for-money" as a parliamentarian;

(ii) the Claimant's claim for £5 was an extraordinary abuse of M.Ps' expenses and was particularly embarrassing and hypocritical having regard to his official support of the campaign to commemorate a Battle of Britain hero."

9. And at para [51] I held that meaning (i) and the following part of meaning (ii) as pleaded by Mr Cook are comment, and no jury properly directed could find otherwise:

"(ii) the Claimant's claim for £5 … was particularly embarrassing … having regard to his official support of the campaign to commemorate a Battle of Britain hero."

10. However, I did that on the assumption that the words complained of bore the meanings pleaded by Mr Cook. I had not at that stage been asked to decide what meaning the words bore, or whether they were defamatory. That is now the task to be carried out in this judgment.
11. The court is not bound by the meanings which the parties attribute to the words complained of, except to the extent that the court will not find that the words bear a meaning more serious than that contended for by a claimant.

The front page article

12. There is no real issue that the front page article bears Mr Cook's meaning (i) (the meaning that Mr Cook "represented low 'value-for-money' as a parliamentarian"). That is what the article said in the words:

"Today the Sunday Telegraph discloses the expense claims of
Members of Parliament who represent low "value-for-money" when their voting records, participation in parliamentary debates and number of questions they ask are compared to their total level of expenses. The most extraordinary was made by Mr Cook who tried to claim for £5 he gave at a Battle of Britain memorial service..."

13. That meaning is also clearly a defamatory one. And as I found in my first judgment, it is a comment not a statement of fact.
14. The second meaning which Mr Cook alleges the front page article bore is set out in para 8 above.
15. The meanings in which the Telegraph pleads in para 10 of its Defence that each of the front page article and the page 2 article bear (and which it also states to be true) are:

"10.1 The Claimant claimed on expenses a £5 offertory donation for an RAF charity made during a memorial service to commemorate the Battle of Britain.

10.2 The claim was an extraordinary abuse of the expenses system.

10.3 It was particularly embarrassing to the Claimant.

10.4 It was inconsistent with the nature of a church offertory and the Claimant's support of the armed forces.

10.5 It was justifiable to describe the Claimant as a low value for money MP."

16. And in relation to the first two articles complained of, the Telegraph contends that the following words are comment: "controversial", "the most extraordinary" claim, "particularly embarrassing" and low "value for money" MP.
17. The Telegraph denies that the words complained of in these two articles contain an allegation that Mr Cook had behaved hypocritically. Mr Price invites consideration of what hypocrisy means, adopting Eady J's statement in Branson v Bower (No 2) [2002] QB 737 at [58]: "'Hypocrisy' implies professing one thing and believing another". Mr Price distinguishes that from professing a belief, but then acting inconsistently with it, as when a person does not live up to standards of behaviour which he professes to (and does) believe to be virtuous. The distinction Mr Price draws is not one that is always recognised in ordinary speech. This is because when a person does not live up to standards of behaviour which he professes to believe, people readily infer that he does not in fact hold those beliefs. So the two meanings overlap. However it may well not be reasonable to infer that a person does not genuinely hold a belief just because he does not live up to it on a particular occasion. This idea is captured in the much quoted words: "the spirit … is willing, but the flesh is weak" (Matthew 26:41).
18. In the present case, what I understand Mr Cook to be saying the words complained of mean, when he uses the word "hypocritical", is that the imputation against him is that he does not really support the Battle of Britain campaign, but only pretends to do so.
19. The particular passages in the front page article which are relevant here are the words:

"It is particularly embarrassing because Mr Cook is an official supporter of the campaign to commemorate Air Chief Marshall Sir Keith Park who commanded the RAF's 11 Group Fighter Command during the Battle of Britain…. Despite
campaigning for the RAF he tried to claim on expenses £5
that he donated at a church service commemorating the
Battle of Britain".

20. In my judgment those words do not carry the meaning that Mr Cook's support for the campaign is a pretence on his part. That would be an unreasonable interpretation of the words complained of in this case. What is said to be embarrassing is the revelation that he had not been living up to the principle he had proclaimed, in other words he had demonstrated a weakness in character or judgment (there is no suggestion of dishonesty). I hold that to be the meaning and that it is a defamatory meaning. I have already held it to be comment. If I had held that there was an implication of hypocrisy I would hold that that meaning is also defamatory. Mr Crystal accepts in his skeleton argument that the meaning would be a comment and not a statement of fact, and he is right to do so.

The page 2 article

21. The particular passages in the "page 2" article which are relevant here are the words:

"His claim for the donation is particularly embarrassing because he is an official supporter of the campaign to commemorate Air Chief Marshall Sir Keith Park who commanded 11 Group Fighter Command RAF at the Battle of Britain.

He is also a former member of the Commons Defence select committee and his son Andrew is a serving soldier with the Royal Electrical and Mechanical Engineers."

22. What I have said above in relation to the front page article applies to the page 2 article. But there is a further reason for my holding that this does not include an imputation of hypocrisy or pretence. The reference to Mr Cook's son makes it less reasonable to interpret this article as imputing that Mr Cook did not genuinely support the campaign.

The Leader

23. It is in relation to this article that the main issues arise between the parties.
24. The passage set out in para 11 of my first judgment is as follows:

"COMMENT AND ANALYSIS

Now it is the people's turn to be heard

…

When, as we report today, one Labour MP thinks it is appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity, the most obvious conclusion that Labour is made up of people who will destroy the ethic of selfless public service.

If the expenses scandal had revealed flaws of character and
judgement in individual MPs, it has not revealed a fundamental flaw with Britain's basic system of representative democracy. None of those who made disgraceful claims were forced to do so by "the system", for there were plenty of MPs who only made claims that are beyond reproach. The difference between those who put their snouts in the trough, and those who did not, is that the individuals who make up the first group decided to claim what they thought they could get away with, rather than what they could justify to their constituents…"

25. This passage is preceded by text which is in two paragraphs and which is longer than the passage complained of. There is also a longer passage of the Leader following the passage complained of. Mr Cook is not named. He is identifiable only to those readers who have already read one or both of the two other articles complained of, which are referred to in the Leader by the words "as we report today".
26. The meanings attributed by Mr Cook to the Leader are:

"(i) [he] thought it appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity;

(ii) [he] set out to exploit the expenses system for his own gain in disregard of his constituents' views."

27. Mr Cook's case is that the hypothetical reader would notice the difference between the words complained of in the Leader "who thinks it appropriate" and the words which Mr Cook is reported as saying to the journalist that weekend, namely that the church claim was "unfair" and "unjustified".
28. The meanings in which the Telegraph pleads that the Leader is true include the two meanings set out in paras 10.1 and 10.2 of its Defence (see para 15 above) and the two further meanings:

"17.2 The donation claim is a prime example of an MP claiming what he thought he could get away with, rather than what he could justify to his constituents.

17.3 … the [Telegraph] will, if necessary, allege that the Claimant set out to exploit the expenses system for his own gain in disregard of his constituents' views".

29. Mr Crystal draws attention to the words "as we report today" for a further reason (that is in addition to the identification of Mr Cook). He submits that these words are more consistent with reporting a fact than expressing a comment. Further he submits that a statement about a person's state of mind is treated as a statement of fact in some contexts, and in particular when what is in question is a person's intention. He cites a passage to that effect from my judgment in Dean McKeown v At The Races Ltd [2011] EWHC 179 (QB) para [35].
30. Mr Price submits that the subject matter of the words complained is a political matter, and that politicians present themselves to the public and invite criticism. So what is said about them is more readily to be interpreted as criticism or comment than as a statement of fact. Moreover, the words here in question are in a Leader headed "Comment and Analysis". It is clearly distinguished by style and position from the news reports in the same paper. Further, he submits that the words "as we report today, one Labour MP thinks it is appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity" would be understood by a reasonable reader as referring to what Mr Cook thought at the time he made the claim, and not as contradicting what he is reported as saying to the reporter that weekend, namely that it was unjustified. But in any event it is to be understood as an inference from the fact that the claim was made at all, and is not a statement of fact.
31. In my judgment the submissions of Mr Price are to be preferred. The Leader is what it says it is, namely a comment piece. In my judgment it means, first of all, that the writer infers from the fact that Mr Cook made the claim for a refund of the £5 that he thought it was appropriate to do so. That is a defamatory meaning.
32. As to the second of the two meanings complained of (as set out in para 26), it is expressed by Mr Cook in general terms, and not as related specifically to the claim for the refund of £5. Mr Price submits that the Leader is referring only to the £5 and not to any other claims that Mr Cook might have made.
33. It is true that the Leader speaks in general terms in these words:

"those who put their snouts in the trough, and those who did not, is that the individuals who make up the first group decided to claim what they thought they could get away with, rather than what they could justify to their constituents".

34. However, in my judgment the reasonable reader would not go on to understand from these words that Mr Cook is accused of making such claims other than in connection with the £5 (which is the only one that is attributed to him). In parts of the article not complained of by Mr Cook there are references to other MPs and their claims. That is what would be reasonably understood by these general words.
35. In my judgment the Leader means (in addition to the meaning found above at para 31), that at the time when Mr Cook made the claim for the £5 he did not believe that he could justify it to the public. That is a defamatory meaning. But in my judgment it is also an inference. The reasonable reader would understand it to be a comment and not a statement of fact.

Conclusion

36. It follows that all the meanings which I have found are defamatory meanings and that all of them are comments (or statements of opinion) and not statements of fact.