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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST

		Royal Courts of Justice Strand, London, WC2A 2LL
		6 July 2018

The Honourable Mr Justice Nicklin :

1. This is a claim for libel brought by Steve Morgan CBE against Associated Newspapers Limited, the publishers of the Daily Mail, over an article that appeared in the print edition and (with some minor differences) also online on 24 August 2017 under the headline: "Building tycoons using staff discounts to snap up homes meant for families" ("the Article").
2. On 28 June 2018, I heard and determined two preliminary issues in this libel claim: (1) the meaning of the Article; and (2) whether the allegations made were fact or opinion. I gave an extempore judgment dealing with those two matters.
3. I found the meaning to be as follows

i) the Claimant was able to take advantage of an opportunity to purchase six houses built by his company that were intended to be sold for less-well off buyers as affordable homes – but which had failed to sell - after his company had been successful in getting local authority planning rules changed;

ii) he purchased the six properties at a substantial discount, £860,000 against a market value of £2.1m and, as a result, stood to make a very large personal gain; and

iii) in consequence, the Claimant had exploited his position to line his own pockets in a greedy, unethical and morally unacceptable way.

4. As to fact/opinion, I was satisfied that elements (i) and (ii) were factual in nature and not themselves defamatory. I found element (iii) to be an expression of opinion based on the conduct of the Claimant in (i) and (ii). Overall, I am quite satisfied that the Article is defamatory of the Claimant at common law as the Defendant has admitted (see [8] below).

Serious Harm

5. Included within the order of 19 June 2018 directing trial of the above preliminary issues was a direction that the Court should, at the same time, determine the issues of whether the meaning found by the Court conveyed a serious defamatory imputation pursuant to s.1 Defamation Act 2013.^[1] Ordinarily, it would be a routine matter to deal with that issue at the same time as ruling on other preliminary issues relating to meaning. Indeed, I would have dealt with it when ruling on the other issues.
6. In this case, however, the issue is complicated, somewhat, by the fact that in its Defence dated 9 March 2018, the Defendant had admitted "that the statements complained of meet the threshold in s.1(1) of the 2013 Act as defined in Lachaux -v- Independent Print Ltd." The reference to Lachaux is to the Court of Appeal's decision ([2018] QB 594) in which Davis LJ, summarising the decision of the Court, said [82(3)]:

"If there is an issue as to meaning (or any related issue as to reference) that can be resolved at a meaning hearing, applying the usual objective approach in the usual way. If there is a further issue as to serious harm, then there may be cases where such issue can also appropriately be dealt with at the meaning hearing. If the meaning so assessed is evaluated as seriously defamatory it will ordinarily then be proper to draw an inference of serious reputational harm. Once that threshold is reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial.

7. Warby J explained the general principles applying to determinations of serious harm (and how they interrelate with the common law test of what is defamatory) in Sube -v- News Group Newspapers [2018] EWHC 1234:

[23] ... The starting point is the common law principle that a meaning is defamatory of the claimant if it "[substantially] affects in an adverse manner the attitude of other people towards him, or has a tendency to do so": Thornton -v- Telegraph Media Group Ltd [2011] 1 WLR 1985 [96] (Tugendhat J). This is the common law "threshold of seriousness", which requires a "tendency" to affect adversely the attitudes of others towards the claimant, to a "substantial" extent.

[24]  Section 1(1) of the Defamation Act 2013 has raised the bar. It provides that a statement "is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant." The words "is likely to cause", as used in this subsection, "are to be taken as connoting a tendency to cause": Lachaux [50] (Davis LJ) (my emphasis). The effect of the subsection is to give "statutory status to Thornton, albeit also raising the threshold from one of substantiality to one of seriousness …": [82(1)].

[25] The approach to be adopted by the Court is explained in Lachaux:

[69] … If the meaning … established … does not convey a serious defamatory imputation then the claim may, by reason of s.1(1), be vulnerable to being struck out without more ado.

[70] If, on the other hand, the meaning so established conveys a serious defamatory imputation … then an inference of serious reputational harm ordinarily can and should be drawn accordingly…

[73] … at a meaning hearing … [t]he seriousness of the reputational harm is … evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used (for example, in a newspaper article or widely accessed blog)…

[79] Whether in any given case the imputation is of sufficient gravity as of itself to connote serious reputational harm … should therefore normally be capable … of being relatively speedily assessed at the meaning hearing.

8. By its admission in the Defence, the Defendant originally accepted that an inference of serious harm could be drawn in accordance with the underlined passages above from Lachaux. The Defence also admitted that the Article was defamatory of the Claimant at common law.
9. In my judgment on the preliminary issues of meaning and fact/opinion, I had already expressed my doubt as to the wisdom of filing a substantive defence when the dispute as to meaning was unresolved. I said:

[8] … this is the second case that I have seen in a month in which a defence has been filed, with fully pleaded defences, before the Court has been asked to determine meaning.

[9] One of the great advantages of the removal of trial by jury in defamation cases is the opportunity it presents for greater case management of defamation claims. Previously, disputed issues of fact (that could not be disposed of under Part 24) had to be left to trial to be determined by the jury. Unless the parties agreed, that effectively prevented the Court ruling on the actual meaning of the words complained of. In consequence, it was quite common to have defamation actions where the parties advanced rival contentions as to the actual meaning of the words. Defences were pleaded upon the defendant's contention as to what the words might be found to mean. That could potentially be hugely wasteful of costs. If the defendant sought to defend meaning X as true, but the jury found it meant Y and that the defendant's defence of truth in consequence failed, litigation of whether X was true is rendered largely (if not completely) pointless.

[10] Now, the natural and ordinary meaning of the words complained of in a defamation claim can be determined, in most cases, as soon as the Particulars of Claim have been served. No evidence, beyond the words complained of is admissible, so the hearing can be accommodated, as this one was, in a couple of hours. It is potentially hugely wasteful of costs for a defendant to plead a full defence if meaning is in dispute. Following the court's ruling on meaning, the defence may no longer be viable, or it may require amendment in light of the Court's ruling. I asked the parties whether they could identify an advantage that they could see in having a fully pleaded defence before the court determines meaning. Neither was able to advance a clear or cogent reason for doing so. It is not my place to issue practice directions, but consistent with the overriding objective the parties must consider whether the expense of a defence is justified before the Court has ruled on meaning, if meaning is disputed. Active case management includes, under CPR 1.4(2), identifying issues at an early stage: deciding promptly which issues need full investigation and trial and accordingly disposing summarily of others; and deciding the order in which issues are to be resolved. Under CPR 1.3, the parties are required to help the court to further the overriding objective. The overriding objective is to deal with cases justly and at proportionate cost. All of those point, clearly, to disputes as to meaning being disposed of as a preliminary issue sooner rather than later (see also Warby J in Yeo -v- Times Newspapers Ltd [2015] 1 WLR 971 [69]-[70]).

10. In this case, some of the potential pitfalls of pleading a defence before the dispute as to meaning is resolved have become apparent.
11. In light of (1) the decision in Sube and (2) the meaning determined by the Court ([3] above), the Defendant now wishes to contend that "the statements complained of" do not convey a serious defamatory imputation about the Claimant. The effect of this submission, if it were upheld, would mean that "serious harm" would remain a live issue. If the Claimant is unable to rely upon the inference of serious harm, he would need to prove that the Article, in the wording of s.1(1), "has caused" serious harm to his reputation. That would be a matter of evidence at trial.
12. As the Defendant recognises, to be able to advance this case, it must apply to amend its Defence; a position it would not have been in if it had not served a Defence and waited for the issue of meaning to be determined. An Application Notice seeking permission to amend was issued on 13 June 2018. I directed that it should be heard at the same time as the trial of the preliminary issues.
13. The amendment for which permission is sought is in the following terms (using the conventional strike-through and underlining to indicate the changes):

7. Paragraph As to paragraph 5 of the Particulars of Claim, is not admitted save that it is admitted denied that the statements complained of conveyed a serious defamatory imputation about the Claimant and meet the threshold in section 1(1) of the 2013 …

14. Although there has been argument as to its precise legal effect, essentially the amendment seeks to withdraw an admission of serious harm to reputation on the inferential basis and replace it with a denial. The Application Notice does not state what jurisdiction the Court is being asked to exercise to grant permission for the amendment. CPR Part 17.3 gives the Court the usual power to allow amendments to a statement of case, but Mr Rushbrooke QC submits that the Defendant will also have to bring itself within CPR Part 14 because the effect of the amendment is to withdraw an admission. CPR Part 14.1 provides, so far as material:

(1) A party may admit the truth of the whole or any part of another party's case.

(2) The party may do this by giving notice in writing (such as in a statement of case or by letter)…

(5) The permission of the court is required to amend or withdraw an admission.

15. The reason for the change of position is explained as follows in the evidence section of the Application Notice:

"In reflecting on the Claimant's application that the court should determine, by way of preliminary issue, the meaning of the statements complained of in this action and whether any such meaning is fact or opinion, the Defendant has also reviewed the question of whether the statements complained of in fact bear a meaning which is defamatory at common law and seriously defamatory of the Claimant under section 1(1) of the Defamation Act 2013 (as construed in Lachaux). On reflection (and, naturally, without waiving legal privilege), whilst the Defendant does not dispute that the statements are likely to be found to be defamatory at common law, it considers that it is strongly arguable that the statements do not in fact convey a seriously defamatory imputation about the Claimant and wishes to amend its original case on this issue (paragraph 7 of the Defence) so that the court does not decide the case without considering what is a real issue of substance in this case.

In reflecting on this issue, the Defendant has noted the parallels between this case and the recent case of Sube and the strong statements of Warby J in the judgment as to the potential difficulty in satisfying section 1(1) where the nature of the conduct alleged is not dishonesty but the 'less important' social norms of, for example, greed or unreasonable behaviour, statements which were found in that case plainly to be opinion. The Claimant in this action also complains that he is accused of greed (as well as unethical behaviour). It is clearly not a fanciful prospect that the court in this case would rule that the statements complained of do not convey a seriously defamatory imputation about the Claimant."

16. There was something of a sterile argument before me as to whether I should rule on the inferential case of serious harm before deciding the amendment application or vice versa. Mr Rushbrooke QC submitted that until the amendment was allowed, there was nothing for the Court to rule upon. Ms Evans QC responded that, under the test to be applied for amendment, one of the matters the Court had to consider was the prospects of success of the proposed amendment. I am going to approach the issue in the only practical way: determine the issue of whether the meaning I have found gives rise to inference of serious harm to reputation without prejudice to the amendment application. Ms Evans QC accepts that, if I rule against her on the inferential serious harm issue, then her amendment becomes academic. If I rule in favour of the Defendant, then the rejection of the inferential case of serious harm means that I will have to decide the merits of the amendment application in which the rejection of that case would become an important factor.

Serious Harm and Opinion

17. Ms Evans QC, principally relying upon Warby J's judgment from Sube [33], advances the argument that, as the words complained of by the Claimant are recognisably a statement of opinion, they are not harmful enough to cross the threshold of seriousness under s.1(1) and are therefore not defamatory.
18. The starting point in analysing this issue is to recognise that defamatory opinion is still capable of causing harm to reputation. If that were not so, there would be no need for a defence of honest opinion (now placed on a statutory footing in s.3 Defamation Act 2013). The fact that defamatory opinion, conveyed by an article, is recognisable as opinion does not lead to the conclusion that it is not capable of harming reputation:

"It is precisely where the criticism would otherwise be actionable as a libel that the defence of fair comment comes in."^[2]

19. The above statement might be regarded as a statement of the orthodoxy of the common law of defamation. The more fundamental question which lies at the heart of Ms Evans QC's submissions is: why are expressions of opinion (expressed on facts that are themselves not defamatory) defamatory at all, in the sense of causing damage to reputation? It is only when one understands the answer to that question that one can assess, under s.1(1), whether publication of expressions of opinion "… is likely to cause serious harm to the reputation of the claimant."
20. Some support for this submission can be found in Professor Raymond Brown's in The Law of Defamation in Canada^[3] (2^nd edition, Carswell, 1994). He argued that, properly analysed, statements of opinion are incapable of damaging reputation (i.e. they are not defamatory at all):

"There is a more fundamental reason why comment cannot be defamatory. Defamation consists of a false statement of fact. If the facts are stated or are known to the listener or reader, the comment on those facts adds no additional factual information about the plaintiff. It merely reflects the speaker's own personal subjective response to those facts… If a defendant discloses true facts that the plaintiff does not attend church on Sunday, and expresses his opinion that for that reason the plaintiff is immoral, there is no reason why the comment should be actionable. The comment adds nothing factual about the plaintiff. It merely represents the defendant's view of this behaviour and the importance the defendant attaches to church attendance in determining moral behaviour. Those who do not attend church will think nothing worse about the plaintiff. Even those who attend may think nothing worse of him. If they do, it will not be as a result of the defendant's opinion, but simply because of the fact that the plaintiff does not attend church. They would have held those views despite the defendant's additional comment. The opinion, however, may disclose something about the defendant. Those who find a correlation between church attendance and personal morals will have a greater respect for the defendant, but their disgust at the plaintiff will be based upon the truthful information that was disclosed about the plaintiff. Others may conclude that the defendant has a very narrow view of moral values and will reflect adversely on the defendant for having expressed this view. In other words, the opinion in this case, as is true in all cases where the opinion is based about true facts that are divulged, will say nothing about the plaintiff that has not already been disclosed, but it will say something about the values, philosophy, and attitudes of the defendant who would express such opinions based upon the disclosed facts."^[4]

"However, the comment that [the stated] behaviour is disgraceful or dishonourable is merely a person's subjective response to the proven fact, and we cannot prove that such behaviour is or is not as described in that opinion. However, by reciting the facts upon which the opinion is based, the readers or listeners can judge for themselves the extent to which the opinion is well founded.

There is an even stronger reason why an expression of opinion should be protected. It adds nothing to our store of factual information about the plaintiff. The facts that precede the opinion already provide the reader or listener with a factual picture of the plaintiff. What the expression of opinion does is to tell us something about the defendant, that is, it identifies those moral and aesthetic values which form the basis for the defendant's opinion. If that is so, the comment cannot be false or incorrect. Therefore it should not be actionable because it says nothing factually false, incorrect or defamatory about the plaintiff."^[5]

21. This debate is perhaps reminiscent of the early confusion as to where fair comment fitted in the law of defamation. In the 1800s, it was suggested that fair comment operated to rebut the presumption of malice that arose upon proof of publication of defamatory words referring to the claimant.^[6] That led it to be labelled as a species of qualified privilege. However, in Peter Walker & Son Ltd -v- Hodgson [1909] 1 KB 239, there was a difference of view in the Court of Appeal. Vaughan Williams LJ rejected the idea that fair comment was a form of qualified privilege, expressing the view that it went to the issue of whether the publication was defamatory (at p.250):

"Ever since Merivale -v- Carson (1887) 20 QBD 275 the doctrine laid down by Sir James Shaw Willes (see Henwood -v- Harrison (1872) LR 7 CP 606) that fair comment is a branch of the doctrine of privileged occasion, under which the publication is protected if the judge rules that the occasion is privileged and that there is no evidence of express malice, has been disapproved, and the defence of fair comment has been regarded, as it is now regarded, as a denial that the words complained of are really defamatory, fair criticism being, it is said, no defamation."

22. Buckley LJ, however, stated what is now the accepted orthodoxy (at p.253):

"Upon the plea of fair comment the substratum must, I think, upon the authorities, be laid by showing that, notwithstanding that the words are defamatory, yet the facts upon which the comment is based were truly stated, and that the comment was honest and was not without foundation. Fair comment does not negative defamation, but establishes a defence to any right of action founded on defamation."

23. Similarly, in Pratten -v- Labour Daily Limited [1926] ALR 152, Cussen J noted (in a passage that is prescient in the era of serious harm):

"It is possible that a statement in the nature of comment may be of so general a character that a jury would be held to be right in finding it to be non-defamatory or in awarding nominal or even contemptuous damages, so as possibly to produce an effect on costs. But confusion has been caused by judicial dicta to the effect that it is only when the writer goes beyond the limits of fair criticism that criticism passes into the region of libel at all – see per Bowen LJ in Merivale -v- Carson. The learned Lord Justice may have meant by "libel" what would be more correctly called actionable libel, and, as applied to the case before him, the statement may have caused no difficulty; but his statement has been relied upon so as to result in confusion.

The cases generally show that comment may be defamatory, though even there it may not be actionable if it is justified or excused. It is only where the comment is defamatory that the question of fair comment arises at all – Henwood -v- Harrison (1872) LR 7 CP 606; Thomas -v- Bradbury, Agnew & Co Ltd [1906] 2 KB 627; Sutherland -v- Stopes [1925] AC 47, particularly at 63; Speight -v- Syme [1895] 1 ALR 153 at pp.156-7; Falcke -v- The Herald and Weekly Times Ltd (1925) VLR 56."

24. The contention that publication of opinions, because they can be recognised as such, is not likely to cause damage to reputation is an interesting argument, but I am quite satisfied that, as a general statement, it does not represent the law. The objective meaning of the publication^[7] – and the harm that it does to the claimant's reputation – remains the same whether the facts upon which it is based are true or not. In the former case, the commentator may well have an opinion defence (if the other requirements are satisfied); in the latter case he will not.^[8] If a claimant has been roundly condemned by a newspaper for doing X, it is irrelevant to the objective meaning of the article whether he did X or not, but X is clearly the premise of the criticism.
25. The key is the requirement that, to provide a defence, the opinion be expressed on true facts (see the underlined passages in the quotation in [20] above). At common law, in the example above, proof of X was essential.

i) The facts upon which the comment was based had to be proved true: "the writer must get his facts right": Slim -v- Daily Telegraph [1968] 2 QB 157, 170F per Lord Denning MR; "there must at least be a sufficient basis of fact to warrant the comment": London Artists Ltd -v- Littler [1969] 2 QB 375, 392H per Lord Denning MR; and "it is not comment… grossly to misrepresent the conduct of a public man, and then to hold him up to execration for this alleged-wrongdoing": Christie -v- Robertson (1889) 10 NSWLR 157, 163 per Windeyer J.

ii) This requirement was strict. All the allegations of fact upon which the opinion was expressed had to be proved to be true: Sutherland -v- Stopes [1925] AC 47, 62-63 per Viscount Finlay and 99-100 per Lord Carson; and Kemsley -v- Foot [1952] AC 345, 357-358 per Lord Porter.

26. The rigour of this latter principle was relaxed (and the strict rule in Kemsley reversed) by s.6 Defamation Act 1952^[9], which enabled the publisher to succeed with a fair comment defence providing he proved true sufficient facts to support the comment. Nevertheless, the core principle remained: if sufficient facts on which the comment purported to be founded were not established to be true (or published on a privilege occasion), the defence of fair comment was not available; Tse Wai Chun -v- Cheng [2001] EMLR 777 [18] per Lord Nicholls; and Joseph -v- Spiller [2011] 1 AC 852 [102] per Lord Phillips.^[10]
27. As noted above ([18]), the defence of fair comment/honest opinion is only needed if the opinion expressed is defamatory (at common law). Serious harm to reputation from defamatory comment/opinion may well be caused by a publication's denunciation of the claimant;^[11] holding him up "to execration"^[12] or being "worthy of attack".^[13] If the critic chooses to "dip his pen in gall" and not be "mealy-mouthed"^[14] in his condemnation of the claimant, the resulting harm to his reputation is likely to be obvious. The central question is whether, objectively judged, a claimant has been the subject of "an attack on [his] integrity and character such as would harm his reputation in the eyes of reasonable people": Prince Moulay Hicham -v- Elaph Publishing Ltd [2017] 4 WLR 28 [37] per Simon LJ. Assessed using the conventional common law approach: "… if an imputation tends to bring a person into the hatred and contempt of right-thinking persons, then it will certainly be defamatory": Thornton [88] per Tugendhat J.^[15]
28. In Sube, Warby J made rulings as to (i) meaning; (ii) fact/opinion; and (iii) serious harm in relation to a large number of articles published about the Claimants that were highly critical of their claims for welfare benefits. The pleading of the Claimants' claim was unorthodox in that it complained of very small sections of text, devoid of context [34]. In one instance, the Claimants complained of three words: "are they serious", and then suggested that they bore a host of meanings that the Judge found they were "manifestly incapable" of bearing without the context of the remainder of the article [35]. The Judge made findings as to the meanings of the articles [38]. Some meanings, albeit allegations of fact, he rejected as not being borne by the relevant article. Other meanings were found to be expressions of opinion, for example, that the Claimants were "milking" the benefits system, and "taking undue advantage of their welfare entitlements, obtaining sums which – though they are entitled to them – are excessive and undeserved, and behaving unreasonably over their housing" [38(1)(ii)]. Turning to the s.1 threshold, the Judge said [39]:

"The articles contain a wealth of factual statements, in particular about the sums of money that have been paid to the claimants in benefits, the nature of the housing offered to them, and their responses; but most of these are not complained of – no doubt because they are not in themselves defamatory. I have rejected all the factual imputations that are complained of on the basis that they are not conveyed by the articles, or are not defamatory at common law. The claimants are left with complaints about expressions of opinion. The question then is the one posed in Singh [32]: "whether the words are defamatory even if they amount to no more than comment". The answer must take account of the subsequent statutory revision of the threshold of seriousness."

29. The Judge found that, considered individually, none of the expressions of opinion contained in or implicit in the articles had "a tendency to cause harm to reputation of a kind or extent which is 'serious'." He gave three reasons for this conclusion:

[41] … One is the nature of the behaviour which the comments attribute to the claimants. There is certainly a consensus that behaviour that is arrogant, greedy, abusive, or unreasonable is undesirable. Society as a whole disapproves of such behaviour. But these are not the most important of social norms. And the significance of such an imputation will always depend on context. Some examples of arrogance or abuse would be seriously damaging to a person's reputation; they would lead people to take a seriously adverse attitude towards them. Some would be treated more lightly. Here, the individual meanings are of "arrogance", "greed", "abuse" and "unreasonable" behaviour in relation to claims for welfare benefits, and similar imputations. The imputations appear in the context of articles which do not impute any dishonesty nor, in my judgment, that the claimants have obtained any benefits to which they were not entitled. The impression conveyed is that they have taken the maximum (and, it is suggested, undue and excessive) advantage of their rights. That may be defamatory by the common law standard, but more is needed now.

[42] The second reason is that the imputations are very plainly expressions of opinion. If an article consists of a clearly stated non-defamatory account of the claimant's behaviour, coupled with the expression of a derogatory opinion about that behaviour, the fact that the opinion is clearly presented as such must mitigate its defamatory impact. The derogatory statement will be seen for what it is: someone's evaluation of the behaviour laid out for the reader's consideration. And if, as here, the opinion expressed is not particularly harsh, the impact of its publication may fall short of the s.1 threshold. That is the position here, in my judgment. The third and contributory reason is the source of the opinions expressed. Where explicit, the statements that convey the opinions complained of derive from neighbours, and officials. Where implicit, they are the insinuations of the publisher. None of these are authoritative sources, which the reader would take to be better able to judge the situation. The reality is that readers are likely to form their own assessment of the facts presented to them, perhaps influenced, but not determined, by the opinions expressed or implied by the articles.

30. Sube was a most unusual case on the facts, particularly so in the Claimants' very limited selection of the words complained of, and the narrow confines of the imputations alleged to be conveyed. Further, in Sube, I understand that the Judge has still to rule on whether the "statements" (as opposed to the individual imputations made in them) were defamatory: see [13(1)], [43]. Therefore, the issue remains to be determined of whether the defamatory impact of a statement, that contains several imputations, crosses the s.1(1) threshold even if, assessed individually, each imputation on its own did not do so.
31. For present purposes, I think some general principles can be extracted from Sube. Subject always to the overall context of the words complained of, the following may well be factors that the court will consider as having a bearing on the serious harm issue in opinion cases:

i) the starting point is the gravity of the defamatory meaning that the court has found;

ii) secondly, there is the question of the gravity of the opinion expressed or criticism of the claimant: criticism can range from being seriously damaging to a person's reputation (leading people to take a seriously adverse attitude towards him/her) to more trivial criticism (and which may fall short of the s.1 threshold);

iii) the significance of an imputation and its capacity (or tendency) to cause serious harm to reputation may be affected by its context and presentation; is the criticism made expressly or by implication?

iv) the fact that the opinion is clearly presented to the reader as such may well mitigate its defamatory impact;

v) if the source of the criticism is identified, does s/he appear authoritative? Is his/her view likely to carry weight and be accepted by the reader? Or is the critic someone whose view the reader is likely to discount in favour of making his/her own assessment? and

vi) has the criticism been adopted by the publisher, expressly or implicitly: in other words, has the publisher 'put its weight' behind the criticism expressed?

Parties' Submissions

32. Ms Evans QC makes the following submissions:

i) The Court has found that the expressions of opinion are clearly stated upon (non-defamatory) allegations of fact.

ii) The defamatory opinion is attributed to identified individuals – said to be "experts [who] hit out at such practices" - whose views are quoted:

a) Paula Higgins of the Homeowners Alliance:

"I wish that these house builders would focus on giving people what they want, and that is well-built affordable homes, instead of focusing on these unethical practices and lining their own pockets."

b) Justin Madders, MP for Ellesmere Port and Neston in Cheshire:

"This is morally unacceptable. To hear that the big bosses of these developers are helping themselves to significant discounts while my constituents are suffering is an insult."

c) Paul Roberts, a former local councillor in Farndon in Cheshire, whose comments were directed at the Claimant individually, stated that the Claimant's deal was "immoral".

Readers, she submits, would have been able to see those views for what they were and would be well able to make up their own minds about whether they accepted the criticisms made of the Claimant. This will be a factor that will mitigate the defamatory impact.

iii) The expressed opinion – found by the Court in meaning (iii) ([3] above) – criticises the Claimant for behaviour that is greedy, unethical and morally acceptable. These are adjectives that do not ascribe to the Claimant the most reprehensible behaviour transgressing a "settled and established societal norm". Objectively judged, this is not likely to cause serious harm to the Claimant's reputation.

33. Mr Rushbrooke QC submits that this is a clear case of the Claimant being alleged to have behaved in a thoroughly morally unacceptable way:

i) The three people who are quoted in the article would be regarded as authoritative. All are described as "experts" and two of them hold public positions of authority: an MP and a councillor.

ii) Overall, the article is an uncompromising condemnation of the Claimant as a "fat cat" who has exploited his position to the disadvantage of the less well-off. The meaning found in (iii) is seriously defamatory and likely to lead people to take a seriously adverse attitude towards him. It is a meaning that is clearly dependent upon the factual allegations in (i) and (ii).

iii) Although not included in the words selected for complaint by the Claimant, the Court can and should have regard, for context^[16], to the Comment section of the newspaper to which readers of the article are directed at the foot of the page ("the Comment"). It is in the following terms:

Homes for fat cats

WHILE millions suffer from the housing shortage, these are boom times for the bosses of Britain's biggest building firms.

Many have grown rich at tax payers' expense, as profits have soared from state-backed schemes such as Help to Buy.

Others have cashed in on rip-off leasehold deals, charging unsuspecting home-buyers ground rents that can double every year.

Now the most distasteful ploy of the lot. Today, the Mail reveals how multi-millionaire developers take advantage of homes meant for young families and first-time buyers. Isn't it sickening how often schemes intended to help the needy end up enriching those least in need?

This, together with the headline of the Article, he submits demonstrates clearly that the newspaper is fully adopting the criticism and making it its own. The reader is positively being invited to agree with the criticism of the Claimant.

Decision

34. I am satisfied that the defamatory meaning I have found the Article to bear is sufficiently serious to give rise to the clear inference of serious reputational harm arising from its publication (applying Lachaux [70] and [82(3)]). My reasons are as follows:

i) Broadly, I accept Mr Rushbrooke QC's submissions. The opinion denounces the Claimant in direct and forthright terms. The Claimant is held up as an unacceptable individual deserving of condemnation by right-thinking people. The meaning is serious in the sense that it is likely to provoke outrage in ordinary reasonable readers; there is a clear flavour of exploitation of the less well-off. It is very far from trivial. Applying the Thornton test, I am satisfied that the allegation is of a seriousness that it is likely to bring the Claimant into at least the contempt of right-thinking persons. In my judgment, it does impute behaviour transgressing a settled and established societal norm.

ii) The three individuals, whose words are quoted, are likely to be regarded by readers as authoritative; people whose views are deserving of respect, or at least views that are not likely to be discounted by readers as those of cranks, ill-informed commentators or people with an obvious axe to grind. Furthermore, they are presented as united in their condemnation. There is no alternative opinion expressed in the Article so as to give readers pause to consider their own view of what was stated about the Claimant. I should make clear that there is clearly no obligation to present alternative views as a condition of the honest opinion defence, but the absence of any countervailing views may well affect the overall impact of a publication in terms of its ability to harm reputation.

iii) It will have been plain to readers – from the terms of the article and from the Comment – that the newspaper fully endorsed and shared the expressed opinion, describing the Claimant's conduct in its own words as "distasteful" and "sickening". Any mitigating effect arising from the clear separation of opinion from allegations of fact is therefore reduced.

35. I should make clear that I am dealing only with the issue of the threshold requirement of serious harm to reputation under s.1 Defamation Act 2013. The Defendant has relied upon a defence of honest opinion. The issue of whether this defence succeeds will be determined later in the proceedings. At this stage, I am making no assessment of the strength of that defence; indeed, I have not considered it.

Amendment Application

36. In light of my findings, it is not necessary for me to determine the Defendant's application to amend its Defence to withdraw the admission that the Article conveyed a seriously defamatory imputation about the Claimant. Such an amendment would, in consequence of my decision, serve no purpose. Therefore, I formally dismiss the application.

Note 1    s.1(1) Defamation Act 2013 provides: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.”    [Back]

Note 2    Dakhyl -v- Labonchere [1908] 2 KB 325, 327 per Lord Loreburn. See also Leech -v- Leader Publishing Co. Ltd. [1926] 2 DLR 28; (1926) 20 Sask LR 337, 350 per Lamont JA: “Fair comment does not negative defamation; on the contrary, it presupposes that the writer has used defamatory language, which language is excused because it does not go beyond what, under the circumstances, is a fair expression of opinion in respect of a public man.”    [Back]

Note 3    The title of the work does it a disservice; it contains an impressive survey of the common law of defamation generally.    [Back]

Note 4    §15.2, footnote 7    [Back]

Note 5    §15.3(1)    [Back]

Note 6    Joseph -v- Spiller [2011] 1 AC 852 [33] per Lord Phillips and see also Chapter 8 of The Making of the Modern Law of Defamation (Hart Publishing, 2005)    [Back]

Note 7    The ‘single-meaning rule’ applies to honest opinion defences: Lait -v- Evening Standard Limited [2011] 1 WLR 2973 [34]-[35] per Laws LJ; [52] per Lord Neuberger MR.    [Back]

Note 8    I am dealing here with cases – as in the instant case – where the facts upon which the comment is expressly based do not contain any defamatory allegations of fact. At common law, if the facts stated in a publication as a basis for the opinion were themselves defamatory, the defendant had to rely upon a defence of justification/truth in respect of those imputations and fair comment/honest opinion was no defence: Broadway Approvals -v- Odhams Press [1964] 2 QB 683, 685-686 per Lawton J approving Truth (N.Z.) Ltd -v- Avery [1959] NZLR 274.    [Back]

Note 9    s.6 Defamation Act 1952 provides: “In an action for libel or slander in respect of words consisting partly of allegations of fact and partly expression of opinion, a defence of fair comment shall not fail by reason only that the truth of every allegation of fact is not proved if the expression of opinion is fair comment having regard to such of the facts alleged or referred to in the words complained of as are proved.”    [Back]

Note 10    This element of the defence finds its place in the third condition of the statutory honest opinion defence under s.3 Defamation Act 2013. s.3(8) abolished the common law defence of honest opinion/fair comment and repealed s.6 Defamation Act 1952.    [Back]

Note 11    Singh -v- British Chiropractic Association [2011] 1 WLR 133 [23]    [Back]

Note 12    Christie -v- Robertson at 163 per Windeyer J    [Back]

Note 13    Kemsley p.355 per Lord Porter    [Back]

Note 14    Cheng [20] per Lord Nicholls quoting with approval Jordan CJ in Gardiner -v- Fairfax (1942) 42 SR (NSW) 171, 174.    [Back]

Note 15    It is not necessary to establish this strength of reaction, but as Tugendhat J recognised, it will be sufficient. In the classic statement of the test (and now subject to Thornton see [7] above): “would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?”: Sim v- Stretch [1936] AllER 1237, 1240 per Lord Atkin.    [Back]

Note 16    Bukovsky -v- Crown Prosecution Service [2018] EMLR 5 [14]-[16] per Simon LJ    [Back]