Defamation Update: Part 1 – Heather Rogers QC

29 03 2011

Libel reform is in the air.  The Government’s Draft Defamation Bill was released on 15 March 2011.  The purpose of this post, which will be three parts, is to note some of the key cases over the last twelve months or so in England and Wales.

Defamation claims – some data

The number of libel claims started in 2009 was 298, up 15 from 284 in 2008. The reported judgments over the last year include a high proportion of interim rulings: no change there. The number of jury trials for libel over that period is zero. The most recent jury trial in a defamation case was Desmond v Bower – 600 days ago. However, the statutory presumption of jury trial – subject to exceptions – continues to affect the management of defamation cases.

The cause of action – what is “defamatory”

Tugendhat J’s ruling last June in Thornton v Telegraph Media Group Ltd [2010] EMLR 25 includes an interesting review of what “defamatory” means. The judge attempted [34-36] to order the cases into “personal defamation”, consisting of an attack on the character or attributes of an individual, and “business or professional” defamation, consisting of an attack on the way in which that person or body conducts their business or profession. Sub-groups in the “personal” category included allegations of (a) some form of wrongdoing (such as illegal, “sinful”, unethical, immoral or harmful conduct); (b) some “misfortune”, with no direct moral responsibility (such as disease); and (c) ridicule.

More important is the recognition by the judge that the concept of “defamatory” includes a “threshold of seriousness” [51ff], [90-91]. Whatever definition of “defamatory” is adopted, “it must include a qualification or threshold of seriousness, so as to exclude trivial claims” [90]. This “threshold” was said to accord with older authority and to be required by the development of the law of defamation after the passing of the 1998 Human Rights Act, in the light of article 10 of the Convention and the “principle of proportionality”.

Of course, this leaves open the question of what (if any) cases fall below the threshold.  In Thornton, one defamatory meaning failed, but that left two others and a malicious falsehood claim (see [2011] EWHC 159 (QB)). Thornton has had a series of interim judgments, including two trips to the Court of Appeal, and, perhaps, one day there will be a trial.)

Where is the line? Has it moved? Would Berkoff v Burchill [1997] EMLR 139 CA which held that “hideously ugly” could be a defamatory allegation – be decided differently today?  Are you sure?

Which side of the “abuse” line?

In addition to the “threshold of seriousness”, the court can be asked to decide whether there is a “real and substantial tort” and, if there is not, to strike the claim out as an abuse: Jameel v Dow Jones [2005] QB 946. This is increasingly relied on in attempts to bring cases to a speedy end, sometimes with other grounds for strike out of summary judgment. Here are some of the recent cases, in roughly reverse chronological order:-

  • Bowker v RSPB [2011] EWHC 777 (QB).  Sharp J gave summary judgment for the defendant on libel claims brought in relation to emails and a critique of a peer-reviewed article about grouse: she accepted that some of the publications bore defamatory meanings (though not as grave as the meanings put forward by the claimants); but found that they were protected by qualified privilege and there was no prospect of malice being proved. (The RSPB’s solicitors were Bird & Bird).
  • Baturina v BBC [2011] EWCA Civ 380. The Court of Appeal allowed an appeal by the claimant, so as to permit her claim for libel, based on an innuendo meaning, to proceed on a wider basis than had been permitted by the judge: [42]. Eady J had refused to strike the claim out as a Jameel abuse, but had confined the relevant readers who might have understood the article to bear a defamatory meaning by way of innuendo: see [2010] EMLR 18 (QB).  The claimant was ordered to give details of the relevant readers [44-51]. Although agreeing with the reasoning in the lead judgment (by Lord Neuberger MR), Sedley LJ expressed some misgivings about the consequences of it.
  • McKeown v Attheraces Ltd [2011] EWHC 179 (QB). The claimant, a senior and experienced jockey, had been the subject of adverse findings by the relevant disciplinary authorities and his appeals had failed. His penalty, for breaches of the rules, was a four-year disqualification. His sued for libel over a racing channel programme, which ran a report about the disciplinary proceedings. Tugendhat J held that the claimant was not seeking to re-litigate an issue that had been determined by a competent court and that the claim was not a Jameel abuse. If the claim were to succeed, the claimant would obtain vindication that was of real value to him and substantial.
  • Wallis v Meredith [2011] EWHC 75 (QB). A claim for libel was brought in respect of the publication of an allegation to only one person, the claimant’s own solicitor. (An application for pre-action disclosure, designed to find further instances of publication, had been rejected). Christopher Clarke J struck the claim out. The defendant, a former employee of the second claimant, had expressed his “understandable concerns” in “measured terms” to the solicitor, who had written to him on behalf of the second claimant. The solicitor was unlikely to have though the worse of his clients. There was no evidence of any harm from the publication.
  • France v Freemans Solicitors [2010] EWHC 3291 (QB).   Eady J gave summary judgment to the defendants in a libel claim, brought in respect of a document published only within a solicitors firm, which referred to the claimant (an employee in the firm). The occasion was clearly protected by qualified privilege and there was no evidence of malice. The judge would not have struck out the claim on Jameel grounds: the court should not enter into a “numbers game” and the implications of publication even to one person could be “devastating” [41].
  • Smith v ADVFN Plc [2010] EWHC 3255 (QB).  Claims for a series of (alleged) internet libels were struck out.
  • Daniels v BBC [2010] EWHC 3057 (QB).  Sharp J struck out claims for libel based on an internal BBC document, which contained minor criticisms of a temporary employee. The document was either not defamatory at all or, if defamatory, only to such a “minor degree” that they fell below the necessary “threshold of seriousness” [50]. The publications were protected by qualified privilege and the malice claim was “at best weak and equivocal, and at worst is simply speculative nonsense” [72].
  • Cairns v Modi [2010] EWHC 2859 (QB).   Tugendhat J refused to order trial of a preliminary issue to determine the extent of publication of a “tweet”, which alleged “match-fixing” against a prominent cricketer. The judge was “concerned” at the idea of trial of an issue of fact as part of (or preliminary to) an application to strike for abuse of process. While the Jameel jurisdiction was useful, it “must not be seen as an additional hurdle which claimants must overcome, increasing the complexity and cost of litigation, instead of reducing it” [44]. In many cases, whether an action is an abuse can be decided on the basis of the claimant’s claim, but that was not always the case (whether there was a substantive defence might be relevant) [45].
  • McLaughlin v London Borough of Lambeth [2011] EMLR 8.  Tugendhat J refused to strike out a claim by a head teacher and governor of a school. There was no rule preventing an individual responsible for the management of a governmental body from suing, even if the defamatory allegation related to their conduct in relation to it; Derbyshire v Times Newspapers [1993] AC 534 HL prevented only the body itself from suing for defamation. (The defendant, a governmental body, had no Article 10 rights). Although the extent of publication was small, the action was not a Jameel abuse: there was a risk of republication and there was a prospect of vindication at trial (truth/falsity of the allegation was in issue: there was a plea of justification in relation to the defamation claim, as well as a claim for a declaration of falsity on a claim under the HRA) [111-112].
  • Ronaldo v Telegraph Media Group Ltd [2010] EWHC 2710 (QB).  Sharp J refused to stay a libel claim as a Jameel abuse. Ronaldo had sued both The Mirror and The Telegraph over substantially the same allegation. The Mirror action, which had been ordered to be tried first, settled shortly before trial with the payment of £25,000 in damages and a statement in open court. But that did not mean that it would be an abuse to proceed to trial against The Telegraph. Ronaldo was entitled to compensation, as well as to vindication, in respect of the (separate) Telegraph article [50-55].
  • Taylor v Associated Newspapers Limited [2010] EWHC 2494 (QB).  Tugendhat J refused to grant summary judgment to the defendant or to strike out the claim as an abuse. The defendant had failed to show that, on the basis of matters admitted by the claimant, a jury would inevitably find that the published allegation was substantially true [26-27]. It followed that it was not possible to say that the difference between what had admittedly occurred, and what was alleged (but denied), was so narrow that it would be an abuse of process for the claimant to continue to seek vindication [33-34].
  • Kaschke v Gray [2010] EWHC 1907.  Libel action in respect of a website publication struck out.
  • Henderson v London Borough of Hackney [2010] EWHC 1651 (QB).  Eady J struck out an action for libel based on a “referral letter”, sent by the claimant’s former employer to a third party, under its statutory duty. The publication was protected by qualified privilege and there was no prospect of proving malice. In this case, although the defendant had not relied on Jameel abuse, the judge pointed out that it could have been argued, given the very limited publication and uncontested facts; the claimant could not expect to achieve any “tangible advantage” by way of vindication [42].
  • Ewing v Times Newspapers Ltd [2010] CSIH 67.  North of the border, in Scotland, the court struck out a case because the “pursuer” had gone into the jurisdiction to acquire a cause of action. He had no connection with Scotland and “no apparent reputation” there to defence. “If he should have suffered hurt feelings when he read the article here, his hurt is self-inflicted.” Even if there were a “vestige of merit” in the claim, it would be disproportionate to try it [17].
  • Khader v Aziz [2011] EMLR 2 CA.  The Court of Appeal refused an overturn a decision by Eady J to strike out a slander claim, based on a publication to one person. One of the grounds for the decision was Jameel abuse: the claim was “at best fraught with difficulties” and, even if it were to succeed, the claimant would “at best recover minimal damages at huge expense to the parties and of court time”. The judge had been right to conclude that the claim was disproportionate and an abuse [32].
  • Underhill v Corser [2010] EWHC 1195 (QB).   Tugendhat J refused to strike out a libel claim as an abuse. He found, on a preliminary issue, that defamatory words in an editorial had been published to thirteen people who were not members of the 6024 Preservation Society Limited (a charity for the preservation of a steam engine – pictured above), but who were on the mailing list for its magazine. The judge thought that the defamatory allegation complained of – dishonest misappropriation of funds from the society – was “so serious” that it was proportionate for the Claimant to proceed with this claim, based on publication to the 13 non-members. The editorial did not merely repeat allegations that had been published in the specialist press and, even if it had, that would be no reason to strike out the claim [143]. The case subsequently settled without trial. The Telegraph reported that the steam engine, which the volunteers had worked for 16 years to preserve, had to be sold to pay the legal costs; the claim had, it said, “horrified the steam preservation world”; but, from the claimant’s point of view, while he was sad that it had come to  this, the fact was that he had been accused of something he had not done and, as he said: “Reputation is everything in this game .. there’s always that doubt in people’s minds which you’ve got to dispel.”
  • Hays Plc v Hartley [2010] EWHC 1068 (QB).  Tugendhat J struck out a claim for libel against a press agency, which had provided a story to a newspaper. The claimant did not sue the newspaper (taking the view that it had a potential Reynolds/Jameel defence and ‘neutral reportage’), but sued three former employees whose employment tribunal claims were the subject of the article. That libel claim settled (together with the tribunal proceedings). There was an agreed statement that acknowledged, amongst other things, that there was no evidence of institutional racism within the company. The judge held that to continue the claim against the intermediary would be an abuse of process: the claimant was a company; the publication was to one person; the republication by the newspaper had included the claimant’s response; the claimant had been vindicated by the settlement, which had been reported by the newspaper; damages would not add any symbolic value to the vindication that had been achieved; and the defendant would be unable to pay damages and costs. In short, pursuit of the action could achieve nothing of value to the claimant [59-60].
  • Kashcke v Osler [2010] EWHC 1075 (QB).  Eady J struck out a defamation claim based on a blog.
  • Dee v Telegraph Media Group [2010] EWHC 924 (QB).  The claimant sued for libel over an article that described him as the “worst professional tennis player in the world” – when he had, in fact, suffered 54 consecutive defeats in tennis tournaments. The court accepted that the newspaper might well have been “having a laugh” at his expense in the article, but ordered summary judgment in its favour. The undisputed facts were sufficient to justify any defamatory meaning the article might reasonably have borne. While the outcome, with hindsight, seems obvious, the fact is that Mr Dee had recovered damages and secured apologies from a number of other media organisations. They had probably been “chilled” by the risk of an adverse costs order. Sharp J later refused an application that the defendant should have its costs on an indemnity basis: [2010] EWHC 1939 (QB).
  • Budu v BBC [2010] EWHC 616 (QB).  Sharp J struck out a libel claim based on an article in the BBC’s online archive

Of course, each of these cases turns on its facts. But the general approach where the court is faced with a Jameel abuse application will be to look at what is at stake in the case. Can the claimant reasonably expect proper vindication and/or substantial compensation and/or an injunction to prevent further publication? Will s/he obtain anything of value by proceeding with the claim, that is, some “tangible advantage”?  The court has made clear that this is not a “numbers game” – even a small-scale publication can be very damaging. In deciding whether to stop the case in its tracks, or wave it merrily on its way, the question of what is “proportionate” in the circumstances will inevitably arise.

Heather Rogers QC is a barrister at Doughty Street Chambers.  This is the first part of a paper delivered at the 18th Annual IBC Conference on Defamation and Privacy, held on 15 March 2011.

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31 03 2011
Midweek media law mop up: Mooting, souped up injunctions and CFA reform | media law & ethics

[...] Inforrm>>Defamation Update: Part 1 – Heather Rogers QC [...]

22 10 2011
Midweek media law mop up: Mooting, souped up injunctions and CFA reform | Media law and ethics

[...] Inforrm>>Defamation Update: Part 1 – Heather Rogers QC [...]

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