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
		11/05/2018

Mr Justice Nicol :

1. This is the trial of a preliminary issue as to the meaning of the publications which are the subject of the Claimant's claim for libel.
2. The Claimant, through Vision Residences (Two) LLP, is the owner of Bishops Court Farm, Dorchester-on-Thames, Oxfordshire, a 303 acre livestock-grazing farm ('the property') which he bought in November 2016. The Defendant is the publisher of the 'Oxford Mail' a daily newspaper which circulates in Oxfordshire. There is each day a hard-copy print edition. There is also an online edition.
3. The publications on which the Claimant sues are (i) the hard copy print edition for 19^th January 2017; (ii) the online edition of the same date, but available thereafter until 26^th January 2017 ('the original on-line article'); and (iii) an amended version of the online article which has been available since 26^th January and is still available ('the amended on-line article').

The hard copy article

4. This was published on page 3 of the paper. It had the headline, "'He's put a barbed wire fence around Pooh Sticks meadow'" What appears to be a sub-headline said 'Villagers shocked after former UKIP treasurer blocks access to fields after buying up 845-acre estate'. The article was accompanied by a picture of a group of people on a grass field with wire fence and an inset photograph of the head of a man. The caption to the picture said, 'Dispute: Villagers in Dorchester-on-Thames pictured at Day's Lock Meadow; inset, Andrew Reid'. The text of the article (with paragraph numbers helpfully added) said,

'[1] VILLAGERS are fighting for freedom after a former UKIP treasurer bought up vast swathes of beloved countryside and started fencing it off.

[2] Residents in Dorchester-on-Thames were shocked when city lawyer Andrew Reid bought the 845-acre Bishop's Court Farm for £11m last year and started putting up barbed wire fences around fields where families have played and picnicked for generations.

[3] The rolling patchwork of pastures, in the shadow of Wittenham Clumps hill on the banks of the Thames, includes the famous meadow by Day's Lock where the World Pooh Sticks Championships were held for more than 30 years.

[4] The previous owner of Bishop's Court Farm, Anne Bowditch, had always been happy for villagers and visitors to tramp across her meadows, but she passed away in September 2015.

[5] Mr Reid, a senior partner at RMPI solicitors, bought the property last year through a company called Vision Residences (Two) LLP.

[6] The first many villagers knew about it was when spiked fences started going up across the fields in October.

[7] Mr Reid then sent Oxfordshire County Council an official map of the entire estate, marking out exactly which paths were public rights of way, with the rest being private land.

[8] That official declaration means the villagers now have exactly one year from the date it was submitted on November 2 to challenge the fences – and that is exactly what they are doing.

[9] A group of residents, led by lawyer and mum-of-three Becky Waller, are preparing to apply to Oxfordshire County Council for two of Mr Reid's fields – Day's Lock Meadow and Dyke Hills – to be granted public Village Green status.

[10] If they get can convince the council the land should be publicly accessible, it will mean villagers and visitors can picnic, play and even hold fetes there in perpetuity.

[11] If they can't, generations of tradition will be lost, they warn.

[12] Mrs Waller, 49, who lives in Dorchester with her husband Martin and their three sons, said: "We won't want to make this a personal thing but people have been really upset by this because this area of land has always been open.

[13] "There have always been areas people saw as places to picnic and play games.

[14] "What has happened feels enclosing and suffocating, not least because these fences have two lines of barbed wire on them."

[15] The villagers' campaign has now been backed by the head of the national Open Spaces Society.

[16] General secretary Kate Ashbrook said: "We deplore the mass of ugly fencing which has been festooned across the paths and green spaces in this beautiful landscape, and we welcome the campaign to record people's long-held rights to enjoy these historic paths and spaces.

[17] "We look forward to helping the local people to record their rights so that they are protected for ever more."

[18] The Oxford Mail attempted to contact Mr Reid through his law firm RMPI but did not receive a response.'

The original on-line article

5. The text of the original on-line article was substantively the same as the hard copy version. There were, though, these differences: (i) The headline was different. The original on-line article had the headline 'Villagers in Dorchester-on-Thames, South Oxfordshire are battling former UKIP treasurer and city lawyer, Andrew Reid after he put fences around "Pooh Sticks meadow"'; (ii) There was the same picture of a group of people on grass with a fence, but there was no inset picture of Andrew Reid; (iii) there was no caption to the picture.

The amended on-line article

6. This had the same headline and substantially the same picture as the original on-line article. The text was also substantially the same as the original on-line version except that

i) Paragraph 2 read:

'Residents in Dorchester-on-Thames were shocked when city lawyer Andrew Reid bought 303 acres of the 845-acre Bishop's Court Farm estate for £4m for farming last year and started putting up barbed wire fences around fields where families have played and picnicked for generations.'

ii) the last three paragraphs said this:

'The Oxford Mail attempted to contact Mr Reid through his law firm RMPI but did not receive a response before publication of the article.

After publication Mr Reid contacted us to say that he is acting to protect the livestock he plans to keep on his private farmland and he says he has given away some of his land to make sure the existing rights of way are wide enough for comfortable use.

He also disputes the campaigners' claim that the land's previous owner was happy to let locals wander freely over other parts of his land. He says he made enquiries of the estate before purchase and it was confirmed that no wider rights had been recognised and the previous landowner's staff had tried to keep walkers and their dogs strictly to the public footpaths.'

The Pleadings

7. The Claim Form was issued on 11^th April 2017. Amended Particulars of Claim were served on 14^th December 2017.
8. In paragraph 4 all three publications are alleged to mean that the Claimant,

'(i) had as soon as he had bought the land, immediately used his vast resources as a rich City lawyer selfishly and callously to override and disregard the longheld and legitimate interests of local residents, threatening generations of tradition by putting up spiked and barbed wire fences, without prior notice or consultation, around swathes of countryside where families have played and picnicked for generations with the consent of the previous owner; and

(ii) had, in overriding and disregarding these legitimate interests, sent Oxfordshire County Council an official declaration about the land in order to limit and / or extinguish public rights of way even though he must or ought to have known about the longheld interests, traditions and consent referred to in sub-paragraph (i) above.'

9. A defence was served on 25^th January 2018. As to the meanings pleaded by the Claimant, the Defendant says, 'It is not admitted that in their natural and ordinary meaning the said words bore the meanings or either of them at paragraph 4. It is denied that the words carry the imputations that the Claimant acted "selfishly" or "callously"'.
10. There is a plea of truth (pursuant to Defamation Act 2013 s.2), in paragraph 10 in these terms,

'In the alternative, if and insofar as the words in their natural and ordinary meaning bore the imputations set out below the imputations are substantially true.

[A] As soon as he had bought the land, and without prior notice to many of the villagers, the Claimant put up barbed wire fences around large areas of his land which had previously been open to the public and where families had played and picnicked for generations with the consent of the previous owner.

[B] The Claimant sent Oxfordshire County Council an official declaration in relation to the land, in order to limit and/or extinguish public use of parts of the land.

[C] In doing so, the Claimant caused considerable upset to a substantial number of local residents who subsequently launched a campaign to register two parts of the Claimant's land as Village Greens.'

11. On 9^th February 2018 the Claimant applied for an order that (amongst other things) the Court should rule that the words complained of by the Claimant were not capable of bearing the meanings pleaded by the Defendant because they were not meanings which were defamatory of the Claimant and/or that the plea of truth should be struck out as disclosing no reasonable defence or as an abuse of process or, that in respect of the plea of truth, the Claimant should be granted summary judgment.
12. On 14^th March 2018 Master McCloud directed that there should be a trial of a preliminary issue to determine the meaning of the words complained of. The Claimant's application of 9^th February should be adjourned until after the determination of that preliminary issue.

Applicable Legal Principles

13. These were not in dispute.
14. The Court's task is to determine the natural and ordinary meaning of the words. That, in turn, means the meaning which the words bore (see for instance Charleston v News Group Newspapers Ltd [1995] 2 AC 65,71 per Lord Bridge). In deciding what this was, the Court determines how the words would have been understood to the ordinary reader.
15. As to this exercise, the starting point is the well-known summary by Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 at [14],

'(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 whether 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. (7) In delimiting the range of permissible meanings, the court should rule out any meanings which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense." Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.'

16. In Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529 at [12] the Court of Appeal approved what Warby J. had said at first instance in that case ([2016] EWHC 1926 (QB)) at [11] namely,

'The second principle should not be misunderstood. It is not an instruction to the Judge: it describes a characteristic of the ordinary reader. That reader will not always select the bad meaning, but nor will they always select the less derogatory meaning: Lord McAlpine v Bercow [2013] EWHC 1342 (QB) [66] (Tugendhat J.) approved in Elliott v Rufus [2015] EWCA Civ 121 [11] (Sharp LJ). The seventh principle is strictly speaking applicable only where the issue is what meanings words are capable of bearing. That is an issue rarely contested nowadays…For present purposes, however, this principle does provide a valuable reminder of the outer limits of the exercise.'

17. In Bukovsky v Crown Prosecution Service the Court of Appeal also said at [13] that Sir Anthony Clarke's summary

'omits an important principle which applies in the present case: namely, the context and circumstances of the publication see Gatley on Libel and Slander (2013) 12 ed para 3.30.'

18. No evidence is admissible in relation to the issue of meaning, other than the publications themselves.
19. It was also common ground that I was not bound to opt for the meanings canvassed by the parties but I could decide that they had some other meaning. Indeed, strictly speaking, the Defendant did not in its pleading contend that the words did bear the meanings it pleaded, rather it said that, if the Court did decide the words had those meanings, it would defend them in those meanings as true.
20. What I am concerned with is the defamatory meaning (if any) which the words bear. After all, if the words do not have a defamatory meaning, the Claimant will fail whatever (non-defamatory) meaning the words have. It is, ordinarily, at least, a barren exercise to consider the non-defamatory meanings of the words. Occasionally, the Court has ruled on the meaning which words bore, and adjourned the issue of whether, in that meaning, the words were defamatory (see for instance Brown v Bower [2017] EWHC 2637). Having said this, I make clear that this preliminary issue is not directed in addition at questions which are sometimes conveniently directed to be tried with the issue of meaning: whether the Claimant has shown that the publication caused him serious harm (now a necessary condition for words to be defamatory as a result of s.1 of Defamation Act 2013) and/or whether the claim is an abuse of process c.f. Jameel v Dow Jones & Co Inc.[2005] QB 946. There are not the particular reasons which Nicklin J. identified in Brown v Bower (or anything comparable) to consider the meaning of the words complained of in this case without considering also whether those meanings would be defamatory at common law. The parties did not seek to dissuade me from adopting that approach. That is what I will do.

The parties submissions on meaning

The Claimant

21. Sir Edward Garnier QC on the Claimant's behalf submitted that all three publications bore the meanings pleaded in paragraph 4 of the Particulars of Claim. The alterations in the amended on-line version were not significant for these purposes.
22. He argued that while the articles did not expressly refer to the Claimant as selfish or callous, that was the plain inference which the ordinary reader would take from them. Furthermore, it was a straightforward inference that the Claimant was selfish and callous. Their meaning was not that there were reasonable grounds to suspect the Claimant of selfishness and callousness. In other words, in his submission, they bore a 'Chase level 1' meaning; not a 'Chase level 2' meaning (and still less a 'Chase level 3' meaning).
23. The articles portrayed the Claimant as the villain of the piece. He was an incomer (a city lawyer). He was rich. He had not simply purchased but 'bought up' a local estate. The reference to him having been a former UKIP treasurer was also added to incite disapproval of him. He had then behaved in a high-handed manner by 'fencing it off'. In doing so he had curtailed public access to lands which the public had in the past been used to enjoying under the previous owner. The fences had been 'spiked' which called to mind prison camps and high security. His actions had 'shocked' locals (who felt 'suffocated') and 'battle' had been joined. The 'goodies' of the piece were the local villagers who were led by Mrs Waller, 'mum-of-three', and supported by the public-spirited Open Spaces Society. Sir Edward argued that the ordinary reader would understand that the Claimant could not care less about upsetting people in the way that he had. The cumulative effect was a hatchet job of the Claimant.
24. In support of the meaning pleaded in paragraph 4(ii), he argued that the words implied that the Claimant's act of fencing off the land was intended to fix and delimit some and extinguish other public rights of access (in his oral submissions, Sir Edward preferred 'public access' to the pleaded 'public rights of way'). It was also implicit in the article that the Claimant had disregarded legitimate and longheld interests of which he was well aware.

The Defendant

25. Ms Jolliffe for the Defendant argued that the context was important. This was a relatively short article in a local newspaper with a readership in a relatively rural area. She argued that a reader of such a publication would be used to reading about land disputes of this kind. The reader would also be able to see the nature of the fencing from the photograph which accompanied the article in each of its various forms. It could be seen from that picture that the fence posts were not spiked; the only spikes were on the barbed wire.
26. Ms Jolliffe argued that the reader was given an account of the Claimant's actions and response of the villagers. It was not alleged in the article that the Claimant had blocked off footpaths which were public rights of way. The argument was over whether two particular fields 'should be publicly accessible' (Ms. Jolliffe's emphasis). Ms Jolliffe asked me to note that the articles quoted Ms Waller as saying the campaign was not a 'personal thing'.
27. She emphasises as well that the articles do not allege that the Claimant has done anything unlawful or fencing land which did not in fact belong to him. The articles impute no motives to the Claimant: they were about what the Claimant had done to the land, not his state of mind in doing it. She submitted that this was reporting a dispassionate dispute about access to land; not about 'goodies' versus a 'baddie'. It was not defamatory at all.
28. She argues that the meaning which the Defendant has said it is prepared to defend as true more accurately captures the meaning which the articles would convey to the ordinary reader.
29. Further, in relation to the meaning pleaded in paragraph 4(ii) of the Particulars of Claim, it was incorrect to say that the words said anything about the Claimant's state of knowledge when he acquired the land.
30. Ms Jolliffe made the above submissions in relation to all three versions of the article. However, she submitted that the alterations in the amended on-line article and, in particular, the addition of the final paragraphs removed any argument that the ordinary reader would understand it as imputing selfishness or callousness to the Claimant.
31. In her oral argument she contended that a reader would not attribute unattractive views to the Claimant on being told that he was a former UKIP treasurer. The article did not say who was a villain and who was an angel, but was a factual report in dispassionate terms about a dispute over access to land.

Discussion

32. It is convenient to take first the hard copy article (though much of what I say in that context will be relevant when I turn to the original on-line article and the amended on-line article).
33. Although I accept that, in principle, account must be taken of the context of the publication, there is not much about the context of these words which assists in gauging its meaning. The article appeared in a local paper. Its subject was certainly a local issue and I am ready to assume that a reader would have been interested in such local affairs, but that takes the matter of meaning little further. Ms Jolliffe invited me to infer that readers of the 'Oxford Mail' would know and be familiar with land disputes. I agree with Sir Edward that I could not feel sufficiently confident to draw that inference. After all, as he says, the readership of the newspaper is likely to be diverse and not have a readily identifiable body of knowledge about, or experience of, arguments concerning public access to land. I do acknowledge that this was a news article rather than, for instance, an editorial or a comment piece. However, that, too, does little to advance the issue of meaning. The article appeared on page 3 of the newspaper, but neither party saw significance in that.
34. I do not agree with Ms Jolliffe that the article was describing a 'dispassionate dispute.' The sub-heading said how villagers were 'shocked' by the actions of the Claimant. They were joining in 'battle' with him. The opening paragraph said that they were 'fighting for freedom'. The headline to the article was a quotation from some unidentified person that 'He's put a barbed wire fence around Pooh Sticks meadow'. That reinforced the message of the sub-heading that what the Claimant had done was seen as shocking. If Ms Jolliffe had meant to submit that the report was dispassionate, I would also disagree. The tone of the article sides with the villagers for very much the reasons that Sir Edward gave.
35. While I go this far with the Claimant's submissions and for these reasons reject the Defendant's case that the words were not at all defamatory (in the common law sense), I accept other points which Ms Jolliffe was making. I agree with her that the article is about what the Claimant has done, not why he has done it. What he had done was to fence off parts of his land over which the public had in past been allowed to exercise access and then sending the official declaration to the County Council. It was these acts which had been shocking and which had led the villagers to join in battle with him. Sir Edward asked me to find that a reasonable reader would go on to infer that the Claimant had so acted out of selfishness and callousness, but that is not what the article says and Ms Waller is quoted as saying that this was not a 'personal thing'. Nor do I think that a reader with the characteristics which I must attribute to her or to him would read these motives into what was said in the article about the Claimant and what he had done.
36. I also agree with Ms Jolliffe that the article says nothing about the Claimant's knowledge of the past use of the fields in question. It does say that the past owner had allowed members of the public to tramp over the meadows by Day's Lock. It does not say that the Claimant was aware of this when he bought the land including those meadows, nor, in my judgment, would a reasonable reader infer that the Claimant did have knowledge from what is written in the article. Likewise, the article says nothing about what the Claimant ought to have known about the public's use of those fields.
37. Nor do I consider that the defamatory meaning is affected by paragraph 6 and its reference to 'spiked fences'. I agree with Ms Jolliffe that the ordinary reader would be able to see from the picture which accompanied the article just what the nature of the fences was and that they did not have the connotations of a prison or high security as Sir Edward had suggested.
38. As I have already said, the Defendant does not positively assert that the words have the meanings in paragraph 10 of the Defence: rather it says, if the words have those meanings, it will defend them as true. Nonetheless, these meanings do come closer to what I find to be the meanings of the article.
39. The Claimant has alleged in his application notice that the meanings which have been set out in paragraph 10 of the Defence are not defamatory. It is not, as such, my task to rule on his application notice. I have, though, said above that a meaning of the article which is not defamatory is nothing to the point. I will interpret Master McCloud's order as requiring me to determine what, if any, meaning the article has which is defamatory at common law.
40. In my judgment the Claimant is entitled to say that the article was defamatory of him in the common law sense. The defamatory sting was that he shocked and caused considerable upset to local villagers by his actions. The Claimant may have a point in saying that the meaning in paragraph 10(B) ('The Claimant sent Oxfordshire County Council an official declaration in relation to the land to limit and/or extinguish public use of parts of the land.'), looked at in isolation, may not be defamatory. However, the position is different when this is seen as a preamble or explanation of part of the actions of the Claimant which, it is said, had caused that shock and upset.
41. Pulling this together, I conclude that the hard copy article had the following meaning:

The Claimant had shocked and caused considerable upset to a substantial number of local residents by his actions, following his purchase of land in the area by (a) without warning, fencing off fields to which the public had been allowed access by the previous owner and where families had played and picnicked for generations; and (b) sending to Oxfordshire County Council an official declaration in order to limit and/or extinguish public use of parts of the land.

42. The original on-line article had the differences to which I have previously referred. However, none of them affect the meaning of the article which was therefore the same as I have set out above for the hard copy article.
43. The amended on-line article had the further changes which I have described. They, too, make no difference to the meaning which I have said the hard copy article bore.