Jersey Unreported Judgments

Defamation - action for damages for libel.

[2012]JRC092

Royal Court

(Samedi)

10 May 2012

Before     :

Sir Charles Gray, Commissioner and Jurats Le Breton and Milner.

 

Advocate C. Hall for the Plaintiffs.

Advocate D. P. Le Maistre for the First Defendant.

Advocate D. S. Steenson for the Second Defendant.

judgment

the commissioner:

1.        This is an action for damages for libel brought by Mrs Shona Pitman and her husband, Mr Trevor Pitman, against the Jersey Evening Post ("JEP") as First Defendant and 1st Jersey Ltd. as Second Defendant.  The alleged libel was contained in the Christmas Eve 2008 issue of the JEP.  The Plaintiffs complain of a cartoon contained in the property section of that issue.

2.        The cartoon takes up a full page and is headed "BROADLANDS" which is the name of the   2^nd Defendant's estate agency.  It wishes all the firm's clients a Merry Christmas.  The cartoon consists of a dozen or so sketches depicting well-known Jersey personalities.  One of the sketches depicts the two Plaintiffs above a rosette which has the name PITMAN endorsed on it.  The sketch is accompanied by a quotation which reads:  "4 x the salary darling!"

3.        The complaint made by the Plaintiffs in respect of that cartoon is that it is defamatory of both of them in its natural and ordinary meaning. The Plaintiffs' case is that the cartoon (including the caption) bears the natural and ordinary meaning that they were greedy money-grabbers who were motivated to seek election to the States purely or mainly for the financial reward it would bring them, namely a fourfold increase in salary.

4.        The Plaintiffs say in the alternative that the cartoon bears the following meaning by innuendo, namely that the Plaintiffs were greedy money-grabbers who had deceived their respective electorates by deliberately misrepresenting to them that they were seeking election for altruistic reasons when in fact each of them was doing so purely or mainly for the financial reward it would bring them, namely a fourfold increase in salary. I should explain that this meaning was pleaded in the alternative as being another natural and ordinary meaning. However, Ms Hall made clear in her opening that she accepted that this second meaning is an innuendo meaning and that it was not relied on as being a natural and ordinary meaning.

5.        An innuendo meaning is a special defamatory meaning which may be conveyed to some readers because they possess knowledge of particular facts extrinsic to the words of which the plaintiffs complain.  In some cases the innuendo meaning may be different from and may also be more serious than the natural and ordinary meaning of the words.  In the present case, however, the natural and ordinary meanings are identical to the innuendo meanings.  The Plaintiffs will not need to establish the innuendo meanings if their case as to the natural and ordinary meanings is upheld.

6.        I should for completeness refer at this point to an interlocutory application made by the Plaintiffs shortly before trial.  By that application the Plaintiffs sought a ruling that they might adduce evidence, not only as to their knowledge of the extrinsic facts relied on as supporting the innuendo meanings but also as to the defamatory meaning that those witnesses understood the words to bear.

7.        That application was heard by me.  I refused it for the reasons set out in a judgment which was handed down on the 26^th March 2012.  My conclusion was that evidence from such witnesses as to the defamatory meanings which they understood to bear is inadmissible.    

8.        In the present case the Defendants do not rely on any substantive defence, whether of truth/justification or fair comment on a matter of public interest or privilege.  Accordingly liability in the action will depend on the decision of the Jurats whether the words and images of which Mr and Mrs Pitman complain are defamatory of them or either of them - whether in their natural and ordinary meaning or by innuendo (as explained above).

9.        In the present case the first question for the Jurats to decide is whether the cartoon complained of was, as the Plaintiffs contend, defamatory of them either in their natural and ordinary meaning or by innuendo or both.  If and only if the Jurats decide that issue in favour of the plaintiffs would the issue of damages arise.

10.      The Plaintiffs were represented by Ms Christina Hall, whose presentation of her clients' case was impressive throughout. In her opening she stressed that Mr and Mrs Pitman brought the action in order to vindicate their reputations; the case was not about money.  Ms Hall made clear that the Pitmans' principal concern was to obtain an apology for what they felt was an unfair and unjustified imputation of dishonesty on their part.

11.      The Plaintiffs' case was that the cartoon, together with its caption, would have suggested to many readers of the JEP that they had stood as candidates in the States election for the money they would be paid if elected.  In other words they were in it for the money. According to Ms Hall the cartoon and especially its caption "4 x the salary darling!" would have conveyed to many readers the meaning that they had put themselves forward for election to the States in order to obtain the relatively substantial remuneration paid to members.

12.      Alternatively the Plaintiffs contend that the cartoon and its caption bore the same meaning by way of innuendo.  In the Particulars pleaded in the Re-amended Order of Justice the extrinsic facts relied on by the Plaintiffs in support of the innuendo meaning were that they were at the time (but are no longer) members of the Jersey Democratic Alliance. That party is said to be a left of centre party committed to a social justice agenda.  The Plaintiffs' campaign literature of each of them had emphasised their social justice agenda. The Order of Justice alleges that these extrinsic facts would have been known to a large, albeit unquantifiable, number of readers of the JEP including voters in their respective constituencies.

13.      In their respective Answers the JEP and 1st Jersey Limited deny that the words and image complained of were defamatory of either Plaintiff whether in their natural and ordinary meaning or by innuendo.

14.      It was common ground between the parties that, in relation to the natural and ordinary meaning of the cartoon, the test to be applied by the Jurats is whether the words and/or images complained of would make the ordinary reasonable reader think the worse of the plaintiffs.  Ms Hall referred us to the judgment of Tugendhat J in Thornton v Telegraph Media Group (2010) EMLR 278.  At paragraph 18 of his judgment he refers to the following passage from the judgment of Sir Anthony Clarke MR in Jeynes v News Magazines (2008) EWCA Civ 130:-

"The governing principles relevant to meaning .... may be summarised in this way:  (1) The governing principle is reasonableness.  (2)  The hypothetical reasonable reader is not naïve but he is not unduly suspicious.  He can read between the lines.  He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.  (3)  Over-elaborate analysis is best avoided.  (4)  The intention of the publisher is irrelevant.  (5)  The article must be read as a whole and any 'bane and antidote' taken together.  (6)  The hypothetical reader is taken to be representative of those who would read the publication in question.  (7)  In delimiting the range of permissible defamatory 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."

Ms Hall also referred us to a dictum of Shaw CJ in an American decision, namely Ellis v Kimball (1843) 33 Mass R at 134: "A man may be as grossly libelled, as effectively exposed to hatred, contempt and ridicule, by a caricature as by written language."

15.      On the basis of that passage Ms Hall submitted that the hypothetical reasonable reader would ask him or herself how it is that the Plaintiffs are now earning ''4 x the salary''.  She drew attention to the sterling banknotes which surround the rosette in the cartoon; to the words '4 x the salary darling' and to the gleeful expressions on the Pitmans' faces. She further relied by way of context on some of the other figures depicted in the cartoon and the controversial dealings in which they were said to have been involved. Ms Hall contended that in their natural and ordinary meaning the cartoon plus its caption would have been understood to bear the natural and ordinary meaning that the Plaintiffs' reasons for going into politics were to make money for themselves.

16.      Ms Hall submitted that the cartoon was in addition defamatory of the Plaintiffs by innuendo.  The extrinsic facts relied on include the following:-

(i)        the Plaintiffs are husband and wife.  They are and were at all material times Deputies of the States of Jersey Assembly (the "States").  The First Plaintiff has been Deputy for the St Helier No.2 district since 5 December 2005 and was re-elected on 26 November 2008.  The Second Plaintiff was elected for the first time on 26 November 2008.  He is a Deputy for the St Helier No.1 district.

(ii)       both Plaintiffs were at the relevant time members of the Jersey Democratic Alliance ("JDA"), a left of centre party formed in 2005, which aimed , among other things, to ensure greater accountability and transparency in government and pursued a social justice agenda.

(iii)      the Plaintiffs' campaign literature for the 26 November 2008 States election emphasised their social justice agenda.  Among other things, the First Plaintiff's literature emphasised her desire to serve her constituents and spend her time attending to her constituents' problems, and the Second Plaintiff's emphasised his deep concern about the direction that the government had taken in recent years, creating an ever-widening gap between the 'haves' and the 'have nots' and contained a promise that, if elected, he would give his constituents "three years of unstinting hard work and commitment".

17.      The Plaintiffs' contention was that readers armed with knowledge of those facts would have understood the words to bear the pleaded meaning that they are:-

"greedy money-grabbers who had deceived their respective electorates by deliberately misrepresenting to them that they were seeking election for altruistic reasons when in fact each of them was doing so purely or mainly for the financial reward it would bring them, namely a fourfold increase in salary."

18.      Ms Hall contended that the Second Defendant's cartoon accused the Pitmans of entering politics for the money and being motivated by greed and that their claims to have gone into politics for altruistic and idealistic reasons were untrue.  According to her argument, a significant number of those who saw the cartoon would have interpreted it as bearing this innuendo meaning.

19.      Mr Daniel Le Maistre for the JEP argued that the cartoon was not defamatory of Mr or Mrs Pitman either in its natural and ordinary meaning or by innuendo. As to the test to be applied in determining the natural and ordinary meaning, he referred me to the guidance given by Sir Thomas Bingham MR in Skuse v Granada Television (1996) EMLR 278 as follows:-

"1. The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article once.

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 a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

3. While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over-elaborate analysis of the material in issue.

4. The reasonable reader would not give a newspaper item 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 reader, 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".

(I should make clear that the underlining of certain passages was done by Mr Le Maistre and not by the Master of the Rolls).

20.      Mr Le Maistre had two further points which he submitted were pertinent to the present case:-

(i)        the first was that, where the words or image are published in a humorous context, the threshold of seriousness is particularly unlikely to be surmounted:  see Berkoff v Burchill (1997) EMCR 139 and John v Guardian News and Media (2008) EWHC 3066. If any lesser test were to be applied, words would be unlikely to reach the threshold of seriousness which is required in order to comply with Article 10 of the European Convention on Human Rights (incorporated into Jersey law by the Human Rights (Jersey) Law 2000). It was submitted that the application of this test is particularly apposite where, as here, the plaintiffs are politicians.

(ii)       secondly he submitted, in reliance on a recent decision of Tugendhat J in Dell' Olio v Associated Newspapers (2011) EWHC 3472, that where the claimant is well known to the public and has been so for a number of years, the public position or character of the claimant is relevant to the question whether the words complained of bear a defamatory meaning.  On the facts of that case Tugendhat J held that an allegation of 'gold-digging' was not defamatory of Ms Dell'Olio.

21.      Mr Le Maistre adopted the test enunciated by Tugendhat J in Thornton, namely that, in order to qualify as defamatory, the words complained of should:-

"substantially affect in an adverse manner the attitude of other people towards the (plaintiff) or have a tendency to do so".

22.      On the basis of those authorities Mr  Le Maistre submitted that the images of the Plaintiffs and the accompanying words, appearing as they did in a seasonal cartoon placed by an advertiser (the 2^nd Defendant), would be unlikely to be taken by ordinary reasonable readers to be serious factual assertions about the Plaintiffs' pre- and post-election earnings.  At most the cartoon might have conveyed the impression that the Pitmans were enjoying the financial rewards of office.  That, submitted Mr Le Maistre, is not a defamatory meaning.

23.      As to the Plaintiffs' innuendo meaning, he submitted that the statements made in the course of the States election campaign which constituted the extrinsic facts relied on by the Plaintiffs were not, even arguably, a basis for establishing the innuendo meanings for which the Plaintiffs contend. The case for the JEP is that it is important that in a democratic society elected officials should be subjected to scrutiny.  The press has a vital role to play in that regard. When it comes to political debates and campaigning the court should be especially reluctant to constrain freedom of expression. 

24.      Mr David Steenson for the 2^nd Defendant in effect adopted the submissions made by Mr Le Maistre.  He maintained that neither the natural and ordinary meanings nor the innuendo meanings advanced on behalf of the Plaintiffs were sustainable.  He described them as 'strained and unreasonable'.

25.      I should for completeness record the fact that the parties made detailed and helpful submissions on the question of damages. In the event the issue of damages did not arise, so it would serve no purpose to recite those arguments in this judgment. The reason why the issue of damages did not arise was that the Jurats decided, on the basis of the tests applied, that the cartoon of which Mr and Mrs Pitman complained was not defamatory of either of them.

26.      The trial lasted over two days. I will attempt to summarise the evidence. I can do so quite shortly for two reasons: the first is that the meaning of words (or images) complained of in a libel action is a matter principally for the Jurats to decide. Evidence of what the parties understood or intended the words to mean is generally inadmissible. The only exception arises where (as in this case) an innuendo meaning is relied on. Where an innuendo is pleaded, the claimant may give evidence of the extrinsic facts relied on in support of the innuendo pleaded. But, as I have explained in paragraphs 4 to 7 above, this exception does not permit witnesses to give evidence of what meanings they understood the words complained of to bear. That was the effect of my ruling. The second reason why I can summarise the evidence quite shortly is that much of it related to the issue of damages, which, as I have explained, in the event did not arise.

27.      Both Plaintiffs gave evidence. Mr Trevor Pitman said that before becoming a Deputy he had been earning about £47,000 and since becoming a Deputy has been earning about £40,000 plus expenses of about £3,000. He described his reasons for going into politics and his beliefs. He described the hostile reactions of those who saw the cartoon. He agreed that he had been re-elected in 2011. In cross- examination he conceded that politicians need to have thick skins and to be robust. He accepted that politics involves rough and tumble but insisted that he should not have to put up with lies being told about him.

28.      Mrs Pitman described her political career and her political beliefs. She said that she was angry and upset by the cartoon which "went totally against all I stood for". She said that she represents the have-nots. She too gave evidence of taunts about her "big fat pay cheque" and being a money-grabber. The cartoon "stressed her out". She felt that the cartoon gave the impression that she and her husband had committed fraud.

29.      Witnesses for the Defendants were Mr Christopher Bright, the editor of the JEP, and Mr Roger Trower, the Managing Director of 1^st Jersey Limited. Mr Bright testified that the cartoon was firmly in the tradition of political lampooning. Mr Trower said that his company had published a number of satirical cartoons during previous festive periods. He selected Mr Giles Robson to do the drawings for the cartoon in 2008. It was not intended to cause offence to anyone. 

30.      Finally I should include in this judgment a brief account of events which took place in the absence of the parties and their legal representatives when the Jurats retired to consider their verdicts. In accordance with the established practice in Jersey, I retired with the Jurats in order to assist them as to the applicable law and if necessary to remind them of the evidence. It was no part of my function to express my own view or opinion as to any of the issues.

31.      I reminded the Jurats of the test to be applied when deciding whether a publication is in its natural and ordinary meaning defamatory.  I indicated that neither the understanding of the Plaintiffs nor the intentions of the Defendants had any relevance to issue of the meaning of the cartoon. Both Jurats were of course well aware of the arguments which had been rehearsed in detail and with great clarity by all parties. I repeated the explanation of what is meant by an innuendo meaning. I indicated to the Jurats that they should consider separately the parties' cases as to the natural and ordinary meaning of the cartoon and their cases as to the innuendo meaning. All Members of the Court had copies of the various authorities cited and I believe the principles applicable to the determination of allegedly libellous words were clear and consideration was given to the guidance contained in paragraphs 14, 19, 20 and 21 as detailed above. 

32.      The Jurats discussed, in my presence but without my expressing an opinion on the question which arose for decision, whether the Plaintiffs had succeeded in satisfying them on the balance of probabilities that the cartoon and its caption were defamatory of the Plaintiffs either in their natural and ordinary meaning or by innuendo. The factors which the Jurats took into account included the following: the fact that the context was the cartoon published in the advertising section (page 46) of the Christmas Eve issue of the JEP, and not in a part of the paper where serious political expression would be expected; that the heading of the cartoon included the words "HAPPY CHRISTMAS FROM ALL THE TEAM AT BROADLANDS"; that several other individuals were depicted on the same page as the Pitmans and that many of them were well-known figures; that both Mr and Mrs Pitman are active politicians and as such may be expected to be more robust than others; and the fact that, as the Plaintiffs accept, they are well remunerated as Deputies. The Jurats considered in some detail the manner in which the Plaintiffs were depicted in the cartoon, including the pound notes around the rosette. There was discussion whether either the caption "4 x the salary darling!" or the expressions on the faces of the Pitmans as depicted in the cartoon carried with them some defamatory sting.  Regard was taken of the 'threshold of seriousness' and the fact that caution should be borne in mind relating to over elaborate analysis of material.  The overall context and content of the advertisement was discussed.

33.      Ultimately the Court decided that the cartoon was not defamatory of either of the Plaintiffs. The Court was not satisfied that the cartoon would have been understood by ordinary reasonable readers to bear the meaning that the Plaintiffs were greedy money-grabbers who sought election for the financial reward it would bring them; nor did the Court accept that the cartoon would have been understood to bear the innuendo meaning pleaded at paragraph 5(2) of the re-amended Order of Justice. The Court decided that the claim must be dismissed with costs.

Authorities

Thornton v Telegraph Media Group (2010) EMLR 278.

Jeynes v News Magazines (2008) EWCA Civ 130.

Ellis v Kimball (1843) 33 Mass R at 134.

Skuse v Granada Television (1996) EMLR 278.

Berkoff v Burchill (1997) EMCR 139.

John v Guardian News and Media (2008) EWHC 3066.

European Convention on Human Rights.

Human Rights (Jersey) Law 2000.

Dell' Olio v Associated Newspapers (2011) EWHC 3472.