Case Law: Thornton v Telegraph Media Group, an offer of amends defence fails – Hugh Tomlinson QC [Updated]

28 07 2011

On 26 July 2011 Mr Justice Tugendhat handed down a reserved judgment after the trial in Thornton v Telegraph Media Group ([2011] EWHC 1884 (QB)).   The claimant was successful and a total award of damages for libel and malicious falsehood of £65,000 was made.   The case is notable for a number of firsts.  It is first libel trial of the year and the first one involving the publisher of a national newspaper since the Mo George case in April 2009.  It is the first case in which an “offer of amends” defence has been overturned by a finding of malice.  Finally, the case also appears to be the first in which a court has awarded general damages for malicious falsehood.

Background

The claim arose out of a review of the claimant’s book “Seven Days in the Art World” by Lynn Barber in the “Daily Telegraph” on 1 November 2008.   The review contained the following words which were relevant to the application:

“Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of “ethnographic research”, which she defines as “a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds”. She also claims that she practices “reflexive ethnography”, which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this “copy approval” and disapprove.

Thornton claims her book is based on hour-long interviews with more than 250 people. I would have taken this on trust, except that my eye flicked down the list of her 250 interviewees and practically fell out of its socket when it hit the name Lynn Barber. I gave her an interview? Surely I would have noticed? I remember that she asked to talk to me, but I said I had already published an account of my experiences as a Turner Prize juror which she was welcome to quote, but I didn’t want to add to.”

The claimant complained that the first quoted paragraph alleged that she gave “copy approval” to interviewees (“the Copy Approval allegation”) and the the second quoted paragraph meant that she had dishonestly claimed to have carried out an hour-long interview with Ms Barber as part of her research for the Book, when the true position was she had not interviewed Ms Barber at all, and had in fact been refused an interview (“the Interview Allegation”).

The defendant made an offer of amends under section 2 of the Defamation Act 1996 in relation to the Interview Allegation.  That offer was rejected by the claimant who contended that Ms Barber knew or had reason to believe that the Interview Allegation was false.

Procedural History

The defendant had originally relied on the defence of fair comment.  This was struck out by Sir Charles Gray ([2009] EWHC 2863 (QB)) and the defendant sought permission to appeal.  At the hearing of the application for permission, Lord Justice Sedley ([2010] EWCA Civ 510) raised the question as to whether the words were defamatory at all and adjourned the application. In June 2010 Mr Justice Tugendhat held that the Copy Approval allegation was not capable of being a personal libel and, if it was, it fell far below the threehold of seriousness required.  He also rejected the argument that this was a case of “business libel” (see [2010] EWHC 1414 (QB) and our post here).   The claimant subsequently amended to allege malicious falsehood in relation to this allegation.

In February 2011, Mr Justice Tugendhat held that there was no defence of “honest comment” in a malicious falsehood case (see [2011] EWHC 159 (QB) and our post here).  In June 2011, following an appeal to the Court of Appeal, the previous order for trial by judge and jury was reversed (see our post here).

The Judgment

The matter was tried by Mr Justice Tugendhat over a period of 4 days earlier this month.   The crucial evidence was that of Ms Barber concerning her state of mind when she wrote the words complained of.

After a discussion of the assessment of credibility ([67] to [77]) the Judge went on to consider the question: did Ms Barber believe what she wrote to be true?

He found that “Ms Barber had in fact been interviewed by Dr Thornton” [82]  As a result, it followed that she knew she had been interviewed, unless she had subsequently forgotten about it.    He went on to reject her evidence that she had forgotten that there had been an interview, holding that she had lied.  This was partly based on the documents and partly on her demeanour in the witness box:

“I have also considered the manner in which Ms Barber gave evidence. While the demeanour of a witness is not the best guide to whether the witness is lying or not, in this case I found nothing in her demeanour which suggested to me that she cared one way or another whether the interview allegation was true or false. She manifested no sign of caring at all” [106].

He then went on to consider the reasons why, if she did not know the truth, Ms Barber was reckless, concluding:

“It is with some hesitation that I reached the conclusion that Ms Barber knew the interview allegation was false at the time she wrote the Review. I have had no hesitation in reaching the alternative conclusion that (if she did not know it was false) she was reckless, that is indifferent as to whether it was true or false” [127].

In relation to the “Copy Approval allegation, the judge considered the question: did Ms Barber believe what she wrote?  He concluded that

On the basis of the Book itself, there was no material upon which Ms Barber could dispute Dr Thornton’s evidence that what Ms Barber had written about her giving a right of copy approval was false. Moreover, on the basis of the Book, which was the only material she had before her at the time she wrote the Review, I find that Ms Barber had no reason to believe and did not believe that Dr Thornton had given a right of copy approval to the people she quoted. She understood very well that an opportunity was not a right, and believed that what she had written was false” [167]

As a result, the claim for malicious falsehood was also successful.

On the question of damages, the Judge took into account the circulation of the “Telegraph” and the “serious aggravating factor” of Ms Barber’s malice.   The cross-examination of the claimant was also an aggravating factor.  There was, however, some mitigation resulting from the fact that there was an apology by the Telegraph, about ten months after the first publication, and about six months after the Review had been removed from the website.

In all the circumstances, the Judge held that the least award of damages that is necessary in this case is one of £65,000.  He attributed £50,000 to the libel and £15,000 to the malicious falsehood [189].

Comment

The case illustrates the fundamental point that whatever comments a reviewer makes he or she will be liable for defamation if the review includes false defamatory allegations of fact.  The false statement that the claimant had not interviewed Ms Barber was a particularly clear case of such an allegation.  In an ordinary case the offer of amends might have been accepted but the claimant chose to challenge this defence because she believed Ms Barber was malicious.  This was a risky strategy which was, however, vindicated by her success at trial.

A number of interesting points arise from this judgment.  First, as already mentioned this appears to be the first time that an offer of amends defence has been defeated at trial under section 4(3) of the Defamation Act 1996.  This provides that the fact that an offer of amends has been made is not a defence:

“if the person by whom the offer was made knew or had reason to believe that the statement complained of (a) referred to the aggrieved party and (b) was both false and defamatory of that party; but it shall be presumed until the contrary is shown that he did not know and had no reason to believe that was the case”.

It has been held that under this provision the claimant must establish “malice” in the sense required to rebut the defence of qualified privilege (see Milne v Express Newspapers [2004] EWCA Civ 664).   This is a high hurdle and claimants rarely attempt to surmount it.

Second, there is the finding of malice itself.   It is, as the Judge acknowledged, “a very serious matter for a judge to find that a witness has lied”.  In making this finding, he relied on Ms Barber’s reaction to the claimant’s initial complaint about the review and on statements made in her well known autobiography “An Education”.  Nevertheless, it might be thought to be a curiously unmotivated lie – why would Ms Barber make it in circumstances where the position was easily checked?   The defendant has indicated an intention to seek permission to appeal and might well seek to argue that the finding resulted from the application of  over-rigorous standards which transformed flippancy into dishonesty.

Third, there is the award of general damages for malicious falsehood in relation to the Copy Approval allegation.  Having found for the defendant in his June 2010 ruling that this was not capable of being defamatory, the Judge found for the claimant on the new malicious falsehood case.  There has been some debate in the case law as to whether general damages are available for this cause of action – although the better view is in favour.  The issue is not considered in the judgment and it is not clear whether it was the subject of argument. [Update] Mr Benjamin Pell has drawn attention to the case of Khodorparast v Shad ([2000] 1 All ER 545) in which the Court of Appeal held that aggravated damages could be recovered in malicious falsehood and upheld the judge’s award of £20,000.  The award in the present case was of general rather than aggravated damages but in the context of the case this distinction has no practical significance.

Overall the case is a clear and decisive victory for the claimant who was quoted in the press as describing it as a matter of “journalistic integrity”. She added: “At a time when the ethics of the tabloids are under scrutiny, here is an example of a ‘quality’ journalist’s abuse of power.”    In contrast, the defendant expressed dismay and indicated an intention to seek permission to appeal.  In the light of the Judge’s findings of fact this is likely to be an uphill task.

[Update]  A number of commentators have expressed concern that the judgment “bans reviewers from being ‘spiteful'”.  Mr Justice Tugendhat made clear in the course of the judgment that this is not the case.  As he said:

A reviewer is entitled to be spiteful, so long as she is honest, but if she is spiteful, the court may more readily conclude that misstatements of fact are not honest, since spite or ill will is a motive for dishonesty.” [76]

These issues are interestingly discussed by Tom Phillips from a non-legal perspective on his flashboy dot org blog in a post entitled  “does the lynn barber libel case ban reviewers from being ‘spiteful’?“.  He concludes:

While many journalists may be worried about this judgement based on some stray headlines, in actual fact it’s a result that all good journalists should be able to support – even though many of us, myself included, have enjoyed and admired Lynn Barber’s work for many years. Because ultimately it’s about the basics of journalism, our version of “first, do no harm” – “First, don’t say something that isn’t true.”

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12 responses

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