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
		25/04/2013

Mr Justice Tugendhat :

1. In this libel action the Claimant applied by notice issued on 7 March 2013 for an order that the question of meaning be determined by a judge as a preliminary issue. Such applications have become increasingly common in recent years and, so far as the court and counsel are aware, there has not previously been a report of a contested application, although since the hearing I handed down my reasons for not ruling on actual meaning in Hamaizia v Commissioner for Police of the Metropolis [2013] EWHC 848 (QB). In other cases the parties have in effect agreed, either that there should, or that there should not, be the trial of such a preliminary issue. In many libel actions there is little difference between the parties as to what the words complained of actually mean.
2. At the end of the submissions I announced that I would grant the Claimant's application for the trial of a preliminary issue on the actual meaning of the words complained of, and give my reasons later. They are these.
3. In Gatley on Libel and Slander 11^th edition (2008) the editors wrote:

"32.9 Meaning and preliminary issue. A number of issues on meaning have recently been determined on applications for the trial of preliminary issue, rather than for a ruling under CPR PD 53 para 4(1). On the hearing of a preliminary issue, the judge is determining the actual single meaning of the words, not delimiting the meanings which the words are capable of bearing…"

4. In such cases, as in the present case, neither party applied for a trial with a jury. The cases cited in the footnote to Gatley are Charman v. Orion Publishing Group Limited [2005] EWHC 2187 (QB); Armstrong v. Times Newspapers Limited [2006] EWHC 1614 (QB) and Curistan v. Times Newspapers Limited [2008] EWCA Civ 432; [2008] 3 All ER 923.
5. In the supplement issued as at October 2010 there is the following addition to that footnote.

"For recent examples of this jurisdiction being exercised, see Bond v. BBC [2009] EWHC 539 (QB); British Chiropractic Association v. Singh [2009] EWHC 1101 (QB) in which Eady J.'s ruling on meaning was found by the Court of Appeal to have been in error: [2010] EWCA Civ 350; [2011] E.M.L.R. 1; and Horlick v. Associated Newspapers Ltd [2010] EWHC 1544 (QB). ….

If the presumption of jury trial in defamation proceedings is reversed (as was contemplated in cll.14 and 15 of the Defamation Bill [HL] 2010-2011), it is quite conceivable that interim judicial rulings on meaning where meaning is in dispute and on issues of fact or opinion (as to which see further below) – given the narrowing of the issues between the parties (with consequent savings in costs such rulings are apt to produce – will become a standard feature of defamation litigation."

6. More recent similar cases include: Cook v Telegraph Media Group Ltd [2011] EWHC 1134 (QB) (myself); Miller v Associated Newspapers Ltd [2011] EWHC 2677 (QB) (myself) Auladin v Shaikh [2013] EWHC 157 (QB) (Eady J); Waterson v Lloyd MP [2013] EWCA Civ 136.

THE COURSE OF THE LITIGATION

7. The claim form was issued on 7 December 2012. The Claimant claims damages in respect of a publication on Twitter alleged to have been made to a substantial but unquantifiable number of users of that service on or around 4 November 2012.
8. The Particulars of Claim include the following statements, all of which are admitted in the Defence which was served on 21 December 2012:

"1. The Claimant is a former Deputy Chairman of the Conservative Party and a former Party Treasurer. He was a close aide to Margaret Thatcher during her time as Prime Minister. As a result of his positions and his work with the Conservative Party, he had a significant political profile during the late 1970s and the late 1980s. He was a life peer in 1984. He retired from working for Conservative Party Central Office in 1990 and since 2002 has lived in Southern Italy out of the public eye.

2. The Defendant has a high public and media profile. She has appeared on television on a number of occasions, including in 2011 as a contestant in the reality show 'Celebrity Big Brother'. The Defendant …. is the wife of the Speaker of the House of Commons. The Defendant has a high profile Twitter account and tweets regularly. At the material time, she had approximately 56,400 followers on Twitter.

3. On the evening of 2 November 2012, the BBC's current affairs programme Newsnight broadcast a report which made serious allegations against 'a leading Conservative politician from the Thatcher years'. The programme alleged that this politician was guilty of sexually abusing boys living at the Bryn Estyn care home in Wales in the 1970s and 1980s. Newsnight did not name the politician and, towards the end of the report, the presenter said it did not have enough evidence 'to name names'.

4. The Newsnight report itself and its contents immediately became a prominent news story. Between 2 and 4 November, online and traditional media widely reported on, and repeated, Newsnight's allegations. That coverage included, but was not limited to the following articles: The Guardian on 3 November 'man claims he was sexually abused by Tory politician; www.telegraph.co.uk on 3 November, BBC's Newsnight airs claims of child abuse against 'leading Tory politician'. A senior Conservative Politician has been accused by the BBC's current affairs programme Newsnight of abusing under aged boys at a children's home in North Wales'; The Sunday Telegraph for 4 November and www.telegraph.co.uk ' senior Tory's accused over child abuse'; Mail online on 4 November, 'Tory rapist told me he'd kill me if I told the police'."

9. In his Particulars of Claim the Claimant pleads in para 5:

"On 4 November 2012, the Defendant tweeted and thereby published or caused to be published to her Twitter followers the following words defamatory of the Claimant ('the Tweet').

'Why is Lord McAlpine trending? *Innocent face*".

10. In relation to that, in paragraph 4 of her Defence, the Defendant pleads:

"Save that it is admitted that the Defendant published ('by tweeting') the words therein set out ('the words complained of'), paragraph 5 of the Particulars of Claim is denied".

11. In the Particulars of Claim paragraph 6 there is pleaded:

"6.1. Paragraphs 1, 3 and 4 above are repeated.

6.2. Twitter's homepage identifies topics or people which/who are 'trending' on the social media website at that particular time. A subject or person will 'trend' because it or he is being mentioned a substantial number of times and there is a material change in how frequently that subject or person is being mentioned. Something or someone will trend when it or he is breaking news on Twitter.

6.3. In the past, Twitter users have used Twitter to identify alleged wrongdoers and others whom the traditional media have not identified when reporting on a story. This has included, but is not limited to, the campaign by some Twitter users in 2011 to identify the footballer Ryan Giggs as the person who had obtained an injunction to prevent the disclosure of his extra-marital affair and an anonymity order protecting his identity in relation to that affair. Twitter users tweeted numerous unsubtle tweets about Mr Giggs and made concerted efforts to get his name trending.

6.4. After the Newsnight report referred to in paragraph 3 above, there was criticism by some Twitter users of the BBC's decision not to 'name names'.

6.5. The above facts and matters or a sufficient number of them would have been known to a substantial but unquantifiable number of unidentifiable readers of the Tweet and, in the premises, those publishees would have understood the words complained of to bear the meaning set out in paragraph 6 above."

12. In response to paragraph 6 of the Particulars of Claim the Defendant pleads in paragraph 5 of her Defence as follows:

"It is denied that the words complained of bore or were understood to bear the meaning set out at paragraph 6 of the Particulars of Claim, whether in their natural and ordinary meaning or by way of the innuendo meaning pleaded. It is specifically denied that the matters set out at paragraphs 6.1-6.4 of the Particulars of Claim, even if known to a reader of the words complained of would give rise to the innuendo meaning pleaded".

13. In paragraph 7 of the Particulars of Claim the Claimant pleads:

"As a result of the publication of the words complained of the Claimant's reputation was seriously damaged and he was caused considerable distress and embarrassment".

14. In response to that, in paragraph 6 of her Defence, the Defendant pleads:

"Paragraph 7 is denied. For the avoidance of doubt, the Defendant does not deny that the Claimant was distressed or embarrassed by the words complained of; she denies that they were defamatory of him and hence such distress as he suffered is not compensatable at law".

15. So the Defendant is not saying that the Claimant was the man referred in the allegation made in Newsnight and elsewhere. It is accepted by all concerned that the Claimant has nothing to do with that or any similar allegation.
16. In solicitors' correspondence the Claimant complained that the Defendant had not pleaded to the facts and matters set out in the Particulars of Claim in paragraphs 6.2, 6.3 and 6.4. In a letter dated 21 February 2013, and since then in an amended Defence, the Defendant admitted paras 6.2 to 6.4 of the Particulars of Claim, and she admitted that readers knew the facts pleaded in para 6.2. She does not admit the extent to which any reader of the words complained of knew all or any of the matters pleaded in paras 6.1, 6.3 and 6.4. She does not admit that, even if known to the readers, any of these matters would give rise to the innuendo pleaded.
17. The remaining issues between the parties all relate to damages. The Claimant pleads a number of matters upon which he relies in aggravation of damages. He alleges that the Defendant has adopted a cavalier attitude to the damage and distress which she has caused.
18. The Defendant pleads the large sums which the Claimant has received in settlements from other people who, she states, published "an allegation substantially the same as that sued upon in this action".

SUBMISSIONS

19. Both sides submit that the issues in this action are: (1) meaning, albeit that there are two sub-issues, the natural and ordinary meaning and the innuendo meaning (if any); and (2) if the words are found to be defamatory, then the amount of any damages.
20. Sir Edward submits that there will be no need for either party to give evidence at the hearing of a preliminary issue on meaning, if there is one.
21. Sir Edward accepts that, although it is the Claimant's case that the Tweet meant he was actually guilty of child abuse, it would be open to the court to find a defamatory meaning at a lower level, sometimes referred to as Level 2 or Level 3. In Chase v Newsgroup Newspapers Ltd [2003] EMLR 218, [2002] EWCA Civ 1772 Brooke LJ explained at para 45:

"The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act."

22. Accordingly, submits Sir Edward, if both parties know what (if any) defamatory meaning the court has found the words complained of to bear, then they will be able to focus their attention upon the appropriate damages, and that will promote settlement. It may prove unnecessary for the Claimant and any witnesses in support of his case to come to court.
23. He also submitted that, if the words complained of are found not to be defamatory, it is likewise in the interests of both parties (and the court) that time and resources should not be taken up in preparing for the trial of an issue on damages which will not arise.
24. Mr McCormick submits that the case will be more efficiently heard in a single hearing. He gives no indication of what (if any) meaning the Defendant will be submitting that the Defendant's Tweet does bear. Since she is not seeking to defend any defamatory meaning as true or honest opinion, the rules do not require that in her Defence she attribute a non-defamatory meaning to the words. The Defendant's case on meaning will no doubt be made clear at the hearing at which the court determines what the actual meaning of the Tweet was.
25. Mr McCormick submits that two hearings are generally more expensive than one. He had originally submitted that two hearings would also delay the final determination of the litigation beyond the end of July. But he accepts that that risk now seems unlikely. The court would probably be able to accommodate two hearings (if necessary) before the end of July.
26. He notes that in the present case there is no substantive defence of truth or honest comment. In cases where there is such a defence, a determination of meaning as a preliminary issue may bring the benefits that can be very large in savings of time and costs. Any savings in this case will be on any view much less significant.
27. Mr McCormick referred me to the list of ten factors identified by Neuberger J in Steele v Steele [2001] CP Rep 106 (cited in Aldersgate Estates Ltd v HAM Construction Ltd [2013] EWHC 104 (TCC) at para [11]). While these apply to defamation actions as much as to any other, this case is not commonly cited in defamation actions because of the characteristics of defamation actions that are peculiar to them.
28. So far as material, consideration of those factors leads to the following conclusions, he submits: first, the entirety of the dispute will not be resolved on a preliminary issue on meaning unless the words are held not to be defamatory of the Claimant; second, such a hearing is unlikely to save costs, but, seventh, is likely to increase costs.
29. The reasons he submits that costs are unlikely to be saved are that one of the factors mentioned in Steele is the possibility that resolution of one issue might lead to a prompt settlement of the other issues. His skeleton argument then includes this:

"The Defendant's submission on this point is quite simple. There is no question of this case settling whatever the outcome of the proposed preliminary issue unless it is by the Claimant's late acceptance of that Part 36 offer the Defendant made before the Claimant issued proceedings. The offer was made to guard against a finding that, contrary to her case, her tweet did libel the Claimant and she will not offer better terms".

30. He also states that there is a risk that a party might wish to appeal an adverse outcome of a preliminary issue.
31. Finally he states that the course proposed by the Claimant is a departure from the established way of trying disputes, and any such departure must be demonstrated to have real benefits.
32. Sir Edward submitted that the statements made on behalf of the Defendant that she would not offer better terms and that there is a risk of appeal, are inappropriate.

DISCUSSION

33. It is common ground that my decision must be reached by reference to the obligation of the court to deal with cases in accordance with the overriding objective to achieve justice (CPR r.1.1). This includes saving expense, dealing with a case proportionately with the importance and complexity of the case, dealing with it expeditiously and fairly, and allotting to it an appropriate share of the court's resources.
34. The parties are also required to help the court to further the overriding objective (r.1.3).
35. The damages that a Claimant may be awarded in a libel action are awarded for more than one purpose. In John v MGN Ltd [1997] QB 586 at p607 the Court of Appeal set out the following guidance:

"In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way."

36. A natural and ordinary meaning is one which a reasonable person in the position of the putative reader of the Tweet would understand the Tweet to mean. The meaning must be judged in accordance with the guidance given in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]. An innuendo meaning is one which would be understood by such a person only if he also knew facts extrinsic to the Tweet, such as, in this case, what had been published on Newsnight and in other media outlets. A natural and ordinary defamatory meaning will be one that the court would take to have been understood by all the readers of the Tweet. But if the only defamatory meaning that the Tweet bears is one that would be understood only by some of the readers of the Tweet, it could follow that the extent of publication of the defamatory innuendo would be found to be significantly less than the total number of readers of the Tweet. The publishees would be limited to those who both read the Tweet and knew any relevant extrinsic fact.
37. So the court that determines the actual meaning of the Tweet, if it finds that there is any defamatory meaning, may find that that meaning is more or less serious, and that the extent of publication is greater or lesser than one or other party submits. All of these findings would, or might, be relevant to the amount of any damages claimed by the Claimant.
38. The Defendant relies in mitigation of damage (pursuant to the Defamation Act 1952 s.12) upon compensation which the Claimant has received from others in respect of allegations which she pleads are substantially similar to the meanings which the Claimant attributes to her Tweet. It follows that any finding as to meaning may be relevant to the extent to which any damages are to be reduced in accordance with the Defamation Act 1952 s.12.
39. Although not expressly mentioned by the parties, a further consideration is that, if a case is settled without the need for a claimant to give evidence, then the injury to feelings and distress (and so any damages) may well be less than they would be if the claimant has to give evidence. A trial at which a claimant gives evidence is likely to attract more publicity, and the distress and injury to feelings may be aggravated accordingly. Damages cannot always fully compensate a claimant for injury to feelings. In the case of an allegation as serious as that which the Claimant attributes to the Tweet, the court should take into consideration the effect upon the Claimant of having to come to court to give evidence.
40. It follows that, in very many libel actions, furthering the overriding objective requires that the actual meaning of words complained of be determined at as early a stage in the litigation as is practical. This explains the increasing number of cases determined in this way, some of which are referred to in the passages cited from Gatley.
41. The present case seems to me to be such a case.
42. I accept Mr McCormick's submission that the balance is more even in this case than in many. Two hearings are likely to be more expensive than one, if two are in fact required. There is less to be saved where, as here, there is no defence of truth or honest opinion. But that is not enough for him to succeed in resisting this application.
43. I reject what Mr McCormick refers to as the submission that "the Claimant … will not offer better terms". That is not a submission. It is an assertion of fact as to the state of mind of the Defendant. But if that is to be stated at all, it should be in a witness statement (verified by a statement of truth). Contentious assertions of fact have no place in a Skeleton Argument.
44. Even if it were in a witness statement, I would attach no weight to such a statement. It is not agreed, and where the parties make statements that are not agreed, a court hearing an application on the papers cannot make findings of fact.
45. In any event, the court is not concerned at this stage with any offers that one party may have made to the other. At a later stage the court may be required to have regard to the conduct of the parties, not only in assessing damages, but also in any order it may make as to costs. So while I have been told by both sides that each has made one or more Part 36 offers, I have not been told (and should not be told) what those offers included. I express no view about them.
46. I also pay no regard to the possibility of an appeal. Parties are always entitled to apply for permission to appeal, and they often do. In some cases, particularly where a relevant point of law is known to be unresolved, the possibility of an appeal may be a factor weighing against the trial of a preliminary issue. In the present case, if the Defendant lost on meaning, but effectively won on the amount of damages, then even if she had a good ground of appeal on meaning, it might not be worth her while appealing.
47. But whether or not she might have a ground of appeal, or if she did, whether or not she would wish to apply for permission before the hearing on damages, are matters too speculative to be of assistance in deciding the outcome of the present application.
48. In the course of submissions I enquired of Mr McCormick whether, by reason of the Part 36 offers, there is a point, which may not have been apparent in any previous cases, which militates against the early determination of the actual meaning of the words complained of. He made clear that he did not submit that there was any such general point.

CONCLUSION

49. It is for these reasons that I decided that furthering the overriding objective required that there be the trial of a preliminary issue on the actual meaning of the Tweet, and whether those words were defamatory. I invited the parties to agree directions both for that hearing and for any further hearing on damages that may be required.