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
		16/04/2014

Mr Justice Bean :

1. This claim for slander is brought against Councillor Colin Lambert, leader of Rochdale Metropolitan Borough Council and against the Council itself, by two companies which operate residential children's care homes in the Rochdale area and elsewhere. Meadows Care Ltd is the largest of the seven or so private sector operators of such children's care homes in Rochdale. Pathfinders Childcare Ltd is a smaller provider with two such homes in Rochdale and a further three elsewhere in Northwest England. There are 41 such homes in Rochdale, some of them very small. The claimants depend for their work on children being referred to them by local authorities.
2. On 8^th May 2012, after a trial in the Crown Court at Liverpool before His Honour Judge Clifton and a jury, nine men were convicted of a range of serious sexual offences, including rape, against over 40 girls and vulnerable young women. Both the perpetrators and the victims lived in the Rochdale area. These grave crimes, in what became known as the Rochdale grooming case, led to a wave of national publicity and concern.
3. Following the convictions the Council established a Rochdale Community Forum which held its launch meeting on 30^th May 2012. The evidence before me gives little detail about the Forum. A list of participants, which may not be complete, has 14 names, including Sir Peter Fahy (Chief Constable of Greater Manchester), Nazir Afzal OBE (Chief Crown Prosecutor for North West England) and Jim Dobbin, Member of Parliament for the neighbouring constituency of Heywood and Middleton. The meeting was open to the public and press. Among those attending was the reporter Chris Jones of the Rochdale Observer and Heywood Advertiser, who made shorthand notes.

Pleadings

4. The present claim was issued on 23^rd April 2013 and amended by consent on 19^th June 2013. Paragraphs 7-10 of the Amended Particulars of Claim, so far as material, read as follows:-

"7. On 30 May 2012 immediately following an open launch meeting for the Rochdale Community Forum the First Defendant, in his capacity and role as a representative and leader of the Second Defendant, spoke and published to substantial numbers of the assembled audience and members of the press the following words defamatory of the Claimants and each of them ("the Forum Publication"):"

"Don't send any more 'vulnerable' kids to us… The legislation surrounding private care homes is totally inadequate. They do not do with it says on the tin. They do not protect vulnerable children, they do not rehabilitate them back into the community, they do the opposite. If these homes were secure units then it would be safe, no one would get in and no one would get out. They would get full access to medical care and full access to social services. But there is no control, they don't even lock the door to keep them in, they go missing, they call the police and its up to the police, local authority and health services to pick up the problems… The council doesn't know anything about the children who are sent to Rochdale and we do not know what is going on inside those care homes and we have no right to find out. Host councils do not ask if the needs of the child are being met by the contract that they sign with the private care home operator. Rochdale borough, at the moment, is the wrong place to send these children, yet host authorities are doing exactly that."

8. In their natural and ordinary meaning, these words meant and were understood to mean that the Claimants and each of them own and operate care homes which are dangerous, unsafe and damaging to both vulnerable children in their care and society and therefore no children should be placed with them and they should not be allowed to operate.

Particulars of Reference

8.1 Paragraph 2 is repeated.

8.2 Paragraph 3 is repeated.

8.3 The words expressly refer to the class of legal persons who operate private health care homes in the Rochdale borough and/or area ("the Class").

8.4 At the material time there were only six or seven legal persons within the Class, including the Claimants.

8.5 The First Claimant is the largest member of the Class.

8.6 The above facts and matters were known to these persons to whom the words were published; alternatively they were known by a substantial number of persons to whom the words were published.

8.7 Without prejudice to the generality of paragraph 8.6 Simon Danczuk MP to whom the words complained of were published who was present at the Forum Publication understood the words complained of to refer to the Claimants.

9. Further and alternatively in their innuendo meaning these words meant and were understood to mean that the Claimants and each of them were directly culpable for the failing to look after children in their care with the result that they were subject to the worst kind of sexual exploitation and abuse, and therefore no child should be placed with them as they might be unsafe and at risk of the same.

Particulars of Innuendo

9.1 Paragraph 6 above is repeated.

9.2 The offences took place in the Rochdale area. The perpetrators were from the area, as were the victims.

9.3 The victims were, or included a number of, vulnerable girls and young women who were or had been in care.

9.4 The above facts and matters were known to those persons to whom the words were published; alternatively they were known by a substantial number of persons to whom the words were published.

10. As a direct, natural and foreseeable (and it is to be inferred, intentional) consequence of the Forum Publication, the words complained of were published extremely widely in the local media and became very well known.

5. In the course of this litigation the parties have had access to a typed text of Mr Jones' shorthand notes and also to an audio recording of the meeting, which first came to light in December 2013. The audio recording proved to be of such poor quality that the transcript of the relevant remarks is almost useless. The claimants bear the burden of proving on the balance of probabilities that defamatory words were spoken by the first defendant; but perfect accuracy is unnecessary provided that the claimants are able to show that Cllr Lambert spoke either the quoted words or substantially similar words to the same effect.
6. By an application notice of 30^th January 2014 the claimants sought permission to re-amend their Particulars of Claim to substitute a new version of the words attributed to Cllr Lambert and also to make two minor changes: the first to add at the end of the introductory section of paragraph 7 the words "or substantially similar words to the same effect", the second to increase the pleaded special damage claims from £357,870 to £371,800 in the case of the first claimant and from £156,000 to £299,000 in the case of the second claimant. (In mentioning the large sums claimed I note at this stage that if the case were to go to trial there would be major issues as to causation and damage. The Claimants say that Cllr Lambert's remarks and their subsequent re-publication in the local press have caused them to suffer a substantial loss of business; the Defendants say that any such loss of business is far more likely to derive from concerns caused by the grooming case.)
7. In the period leading up to the hearing there has been correspondence between solicitors and further discussions between counsel on the subject of exactly what words were spoken. Matthew Nicklin QC for the defendants appended to his skeleton argument a helpful document, with tracked changes in three colours and marginal comments, showing the differences between the versions put forward at various stages and the sources of each suggested phrase. In the light of the views I have formed on the issues of real substance on this hearing it is not necessary to deal with the detailed archaeological history of the latest version of the pleading. The text put forward by Andrew Caldecott QC for the claimants in oral argument, which differs slightly (but not materially) from the draft in the application notice, was as follows:-

"The issue of these homes is one I have been on about for six years. There are 41 of these private homes in the Borough. The issue is not that they are private, the issue is that the legislation around them is totally inadequate and they do not do what it says on the tin. They do not protect vulnerable children, they do not re-integrate them back into the community, they do the opposite. And what previous governments and the current government need to do is to review our cared for children in the UK and this needs to be a starting point.

These homes, 41 here and yet Rochdale has no say on any child that comes here. How can a host authority, be they Essex or Newcastle or Sunderland, say it is sensible and safe to send a child to a private care home in the borough of Rochdale in the current climate, but that is what they are still doing. That is the wrong decision.

In the homes themselves, if these children were to be at a point where they have been moved, quite for a good purpose, out of their region to keep them safe, but if they were in secure units they would be safe, no-one could get in, they could not get out, they would get full access to education, full access to medical treatment, full access to social services. They get into these homes and sign contracts because host authorities use them to get rid of them. What happens? There is no control, care workers can't even lock the door to keep them in. They just go missing and phone the police. The local authority then picks up the social problems, the health service picks up the medical problems, and home authorities are often simply washing their hands of issues because they did not ask if the needs of that child are being met by the top contract that they signed for that child's welfare.

Rochdale Borough, at the moment, in the current climate, is the wrong place to send their troubled, vulnerable child, the wrong place to send troubled children and yet host authorities are not asking that question.

We need a parliamentary review into childcare in the UK."

8. Mr Nicklin QC opposed the application to re-amend on three grounds: (a) that the claimants have no real prospect of showing that some of the words set out in the draft re-amended pleading were spoken by Councillor Lambert; (b) that the substitution of new words substitutes a new cause of action which does not arise out of the same or substantially the same facts as were already in issue in the claim, and is therefore statute barred since the application to re-amend was made more than a year after the cause if action accrued; and (c) that even on the assumption that the pleaded words were proved to have been spoken, they were not defamatory of the claimants and were in any event clearly an expression of opinion.
9. As to the first point, having regard to Mr Jones' notes in particular I consider that it has been shown on the balance of probabilities that Councillor Lambert spoke the words set out in paragraph 7 of this judgment, or substantially similar words to the same effect.
10. Turning to the second point, Mr Nicklin referred me to two authorities, both unreported. In Lloyds Bank v Rogers (CA, 20 December 1996) a claimant who had issued proceedings for breach of contract was allowed to amend them to add a claim for libel after the expiry of the limitation period (in those days three years) because the facts already pleaded to support the claim for breach of contract were substantially the same as those relied on to support the defamation claim. On the other hand in Komorek v Ramco Energy PLC (21 November 2002) Eady J held that each publication to a different publishee involves a new cause of action even if the allegedly defamatory remarks are substantially the same on each occasion.
11. I do not consider that revision of the pleaded text of Councillor Lambert's remarks in this case involves adding or substituting a "new claim" within the meaning of CPR 17.4 (2). If I am wrong about that, it is clear to me that the new claim arises out of the same or substantially the same facts as that made in the previous version. I bear in mind that the occasion was the same; the audience was the same; and the revisions to the text do not involve any addition to the gravamen of what are said to be defamatory statements about the claimants. I conclude that I should therefore allow the proposed re-amendments, provided that I am satisfied that the claimants' case should be allowed to go to trial.
12. Before leaving the subject of pleadings I should refer to the Defence, which was served on 5^th July 2013 and has not been amended since that time. Although quite an extensive and detailed document, it does not contain the defences of honest comment (using the old terminology, since the Defamation Act 2013 does not apply to this case) nor of qualified privilege. The first omission is readily explained on the basis that there was at that time considerable doubt about what words had been spoken. A defendant cannot sensibly be expected to formulate a defence of honest comment in a slander case until it is proved what words he spoke. The second omission is a little more surprising, since whether the first defendant in making remarks at a meeting of the Rochdale Community Forum was doing so on an occasion of qualified privilege might be thought to be an issue of principle not dependant on the exact words spoken. However, it is clear from the terms of paragraph 4.2 of Practice Direction PD53 that either party may apply for a ruling on meaning at any time after service of the Particulars of Claim. It is not necessary for the defendant to have served any Defence at all. In litigation generally it is undesirable for defences to be advanced piecemeal, but Mr Caldecott did not dispute that it is permissible in a defamation case for a defendant to keep some or all of his powder dry until after a ruling on meaning has been given. This concession is reflected in the terms of a consent order made on 11^th February 2014 by Deputy Master Eyre, which was that a judge should determine:-

a) whether the claimants should be granted permission to re-amend their Particulars of Claim;

b) whether the words complained of in the re-amended Particulars of Claim bear any meaning that is defamatory of the claimants; if so,

c) whether the words complained of are an expression of opinion or a statement of fact; and

d) what meaning the words complained of bear.

13. It was not suggested that this formulation bound me to decide the issues in any particular order. It will be seen shortly that Mr Nicklin's central submission was that (c) should be decided before (b) or (d). It may also be noted that, in accordance with current practice but not with the wording of paragraph 4.1 of the Practice Direction, I am being asked to say what meaning the words complained of do bear, not what meaning they are capable of bearing. It is common ground that there is no question of a trial by jury in this case and that it would be pointless to have a hearing to decide what, if any, defamatory meaning the words spoken by Cllr Lambert are capable of bearing.
14. There was a tentative suggestion in the skeleton argument on behalf of the claimants that the "statement of fact or expression of opinion?" issue should not be determined at a stage when there is no plea of honest comment in the defence. In Euromoney Institutional Investor plc v Aviation News Ltd [2013] EWHC 1505 Tugendhat J said at [32] that "a claimant is not required by PD 53 to specify whether the words complained of are a statement of fact or opinion. That issue only arises if and when a defendant serves a defence in which the defendant seeks to defend the words complained of as being one or other of a true statement of fact, or statement of opinion (whether the opinion is honest is an issue that arises only if the claimant pleads malice in a reply)." But he noted that in Cammish v Hughes [2013] EMLR 13 (not an application pursuant to PD 53 para 4.1, but a case in which honest comment had been pleaded and the judge had been asked to determine meaning as a preliminary issue) Arden LJ had stated that "if the judge is going to make a definitive determination of meaning, he should normally deal with comment at the same time". Mr Caldecott did not press the argument that I am precluded from dealing with this issue in the absence of a pleaded defence of honest comment. I consider that I should do so, firstly because it forms part of the agreed agenda for this hearing set in the consent order made by the Deputy Master; secondly because it is closely bound up with the question of the meaning of the words; and thirdly because of the course taken by the Court of Appeal in British Chiropractic Association v Singh, to which I shall return later in this judgment.

Principles applied in determining meaning

15. The principles to be applied in determining the meaning of the words complained of in defamation claims are now well established and were not in dispute. In Gillick v BBC [1996] EMLR 267 at 272-3 Neill LJ summarised the guidance given by Sir Thomas Bingham MR in Skuse v Granada TV [1996] EMLR 278, at 285-7, as to the approach to be adopted. That guidance is expressed as applied to claims for libel: I shall adapt the wording to slander.

(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable [listener hearing the words] once.

(2) The hypothetical reasonable [listener] is not naïve but he is not unduly suspicious. ……He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but is not avid for scandal and is someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) While limiting its attention to what the defendant has actually [said] the court should be cautious of an over-elaborate analysis of the material in issue.

(4) The reasonable [listener] does not give [the words he hears] the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.

(5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable [listener] the court is entitled, if not bound, to have regard to the impression it made on them.

(6) The court should not be too literal in its approach.

16. It follows from the above that the intentions of the speaker are irrelevant to the determination of meaning, which is an objective issue.
17. It was also common ground that the remarks of Cllr Lambert are to be taken as a whole, and the issue is what impression the hypothetical reasonable listener would have been left with at the end of the passage complained of.
18. The argument before me was addressed entirely to the natural and ordinary meaning of the words spoken. Mr Caldecott sensibly accepted that if he could not succeed on the natural and ordinary meaning, he could not be rescued by the innuendo meaning, which in any event involves some disputed issues of fact unsuitable for determination at this hearing. Conversely, if he succeeds on the natural and ordinary meaning, reliance on the innuendo meaning becomes unnecessary.

The claimants' right to sue in defamation

19. In Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 547 Lord Keith of Kinkel said that "the authorities clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business". The decision of the House of Lords in Jameel v Wall Street Journal [2007] 1 AC 359 demonstrates that this remains the case even after the incorporation of the European Convention on Human Rights, in particular Article 10, into English law. In the case of slander, as opposed to libel, it is subject to the rule that there is no cause of action unless the claimant can prove special damage; but that is not an issue before me at this stage.

The claimants' submissions on meaning

20. Mr Caldecott submitted that Cllr Lambert was making allegations of fact, namely "that the Claimants are failing in their prime responsibility to keep children in their care safe" in what counsel described as "striking and extreme language". Having reminded me that "the authorities caution against over-elaborate analysis", he made the following points on the natural and ordinary meaning of the words:

[1] "The words open with a reference to the 41 care homes in the borough. There is no reference to local authority care homes anywhere in D1's statement. D1 has never suggested that he referred to them.

[2] It would be obvious to anyone that the basic obligation of care homes (private or not) is to care for their vulnerable charges. That must be so, whatever the shortcomings in the legislation.

[3] The phrase "they do not do what it says on the tin" is both striking and could not be clearer. Although D1 is clearly critical of the legislation too, "they" refers to the care homes as a matter of simple English and was so understood by the Rochdale Observer journalist. The phrase unequivocally suggests that the private care homes in the area do not do what they claim, and are required, to do.

[4] D1 then goes even further and alleges that the private care homes in his area do "the opposite" to what they are required to do and that they fail both to protect children and to reintegrate them into society…...

[5] D1 then alleges that it cannot be sensible for councils elsewhere in England to send children "to a private care home in the borough... in the current climate". That observation follows entirely naturally from [1] to [4] and is repeated in terms in the final sentence.

[6] D1 then turns to the fact that under the law vulnerable (rather than dangerous) children cannot be locked up in a secure home. That is indeed the law, and it would obviously be impossible to reintegrate children if they were permanently incarcerated. Yet even here D1 goes further and alleges that "there is no control". Obviously a private care home, properly run, must seek to control its charges insofar as it is lawful having regard to their Article 8 (and other) rights.

[7] D1's main legislative criticism appears to be that Rochdale Council has no say on whether children are sent to the area, when it would be more aware of special problems which the area presents……. He also calls for a nationwide review of the care system. That stance may or may not have merit, but it does not dilute the core criticism that private care homes in Rochdale are delivering the very opposite of what they are meant to deliver.

[8] There is not a single observation to the credit of the Rochdale private care homes to place in the balance."

21. As noted above, the ordinary and natural meaning pleaded in the Particulars of Claim is that "the Claimants and each of them own and operate care homes which are dangerous, unsafe and damaging to both vulnerable children in their care and society and therefore no children should be placed with them and they should not be allowed to operate".
22. There is one aspect of the submissions on behalf of the Claimants which I should set out and deal with immediately. In their skeleton argument Mr Caldecott and Mr Helme wrote:

"It is material, of course, that D1 is the Leader of the Council and therefore a man of experience and political influence. He is not a casual commentator, but someone in the know, addressing the record of private care homes within his bailiwick."

Mr Caldecott put the "someone in the know" point in oral argument by saying that while the issue of whether legislation is needed is a matter of opinion, an allegation of incompetence is a statement of fact, and the audience were entitled to assume that "he would not have made such a charge (of incompetence) unless he had been fully briefed".

23. I do not regard Cllr Lambert's status as Leader of Rochdale Council as relevant to the issue of what his remarks meant, nor as indicating that he was likely to have been "fully briefed" and on that basis making statements of fact rather that expressing an opinion. If it were relevant at all to these issues (rather than to qualified privilege), which I doubt, his status would seem to me to point the other way. There is no evidence before me as to what question Cllr Lambert was answering when he spoke the words complained of, but the purpose of establishing the Forum seems clear enough. The Rochdale grooming case was the most serious scandal to have occurred in the area for many years. There was understandable and pressing public concern about what lessons should be learned from it. The audience had a right to expect the leader of the local council to express his opinions frankly and fearlessly when discussing the subject, especially in the context of the Forum. On the other hand, I approach the issue of meaning on the basis that the hypothetical reasonable member of the audience did not have the specialist knowledge of the Chief Constable or the Chief Crown Prosecutor.

The defendants' submissions

24. In the leading case of British Chiropractic Association v Singh [2011] 1 WLR 133 the defendant, a scientist and science writer, wrote an article in the Guardian newspaper which stated that the BCA claimed that its members could help to treat children with certain ailments "even though there is not a jot of evidence [of this]" and that it "happily promotes bogus treatments". Eady J was asked to determine two preliminary issues: (a) what defamatory meaning the relevant words bore; and (b) whether such words constituted assertions of fact or expressions of opinion. He ruled as to the defamatory meaning of the relevant words and held that they constituted assertions of fact and not expressions of opinion. The effect was that Mr Singh would not have been entitled to rely at trial upon the defence of what was then called fair comment and would have to prove that the meanings were factually true, or lose the case. The Court of Appeal, whose constitution included the Lord Chief Justice and Master of the Rolls, allowed the defendant's appeal. They held that the critical question was whether the meaning of the passage complained of included one or more allegations of fact which were defamatory of the claimant or whether the entirety of what the passage said about the claimant was comment (or, to adopt a term used by the European Court of Human Rights, value judgment). They went on to hold that the question of whether there was any evidence to support the BCA's claims for the efficacy of chiropractic was a matter of opinion and not of fact.
25. The Court of Appeal held that Eady J had conflated two distinct issues: first, whether there was any evidence to support the BCA's claims, and secondly, if there was not, whether they knew this. If the first was, as the judge had held, a verifiable fact, the trial could be expected to involve expert evidence on both sides and a judicial conclusion as to whether there was any evidence for the BCA's claims. The court went on:-

"It is one thing to defame somebody in terms which can only be defended by proving their truth, even if this ineluctably casts the court in the role of historian or investigative journalist. It is another thing to evaluate published material as giving no evidential support to a claim and, on the basis of this evaluation, to denounce as irresponsible those who make the claim. Recent years have seen a small number of high-profile libel cases in which the courts, however reluctantly, have had to discharge the first of these functions. But these have been precisely cases in which the defendant has made a clear assertion of highly damaging fact, and must prove its truth or lose.

The present case is not in this class: the material words, however one represents or paraphrases their meaning, are in our judgment expressions of opinion. The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian Ministry of Truth. Milton, recalling in the Areopagitica his visit to Italy in 1638-9, wrote:

"I have sat among their learned men, for that honour I had, and been counted happy to be born in such a place of philosophic freedom, as they supposed England was, while themselves did nothing but bemoan the servile condition into which learning among them was brought; …. that nothing had been there written now these many years but flattery and fustian. There it was that I found and visited the famous Galileo, grown old a prisoner of the Inquisition, for thinking in astronomy otherwise than the Franciscan and Dominican licensers thought."

That is a pass to which we ought not to come again……..

It may be said that the agreed pair of questions which the judge was asked to answer [what defamatory meaning the words bore, and whether they constituted assertions of fact or comment] was based on a premise, inherent in our libel law, that a comment is as capable as an assertion of fact of being defamatory, and that what differ are the available defences; so that the first question has to be whether the words are defamatory, even if they amount to no more than comment. This case suggests that this may not always be the best approach, because the answer to the first question may stifle the answer to the second.

However this may be, we consider that the judge erred in his approach to the need for justification by treating the statement that there was not a jot of evidence to support the BCA's claims as an assertion of fact. It was in our judgment a statement of opinion, and one backed by reasons."

26. Mr Nicklin argues that I should adopt the same approach in this case. He submits that the whole of Cllr Lambert's remarks bear the badge of opinion, and that there is simply no defamatory statement of fact at all. He also submits that nothing in Cllr Lambert's remarks could sensibly have been understood as an allegation of culpable behaviour or incompetence on the part of the Claimants or their staff.

Conclusion

27. I find that the meaning of the words complained of, taken as a whole, is as follows:

"Private care homes, of which there are 41 in Rochdale, do not protect vulnerable children and do not re-integrate them into the community; they do the opposite. This is because:

(1) The legislation governing private care homes is totally inadequate; there should be a parliamentary review of it.

(2) Rochdale has no role in the life of any child sent here by another authority.

(3) If children were sent out of their own community to a secure home they would be safe. No one could get in, they could not get out, and they would have full access to educational, medical and social services.

(4) By contrast, where children go missing from a private care home the local council in that area picks up the social problems and the local health authority picks up the medical problems. Home authorities are washing their hands of the issue because they are not asking whether the welfare needs of the child are met by signing a contract with a provider outside their own area.

(5) Rochdale is in any case the wrong place for another local authority to send a troubled and vulnerable child in the current climate (following the grooming case)."

28. It was quite clear to me when I first read the words complained of, and remains clear after several more readings and considering counsel's submissions, that they were an expression of opinion and did not involve an allegation of culpable behaviour or negligence on the part of either of the Claimants or their staff, nor on the part of the seven private providers of children's care homes in Rochdale or their staff. The allegation is plainly against the system. Cllr Lambert was saying that in his opinion the children are not properly protected, and that this lack of protection is a consequence of the legislative and systemic defects which I have enumerated in the last paragraph.
29. I therefore find that the words complained of in the draft re-amended Particulars of Claim do not bear any meaning which is defamatory of the Claimants; that they are an expression of opinion rather than a statement of fact; and that this defamation claim has no prospect of success at a trial.
30. Accordingly I refuse permission to re-amend and dismiss the claim.