Case Law: Simpson v MGN Limited and Ward: gradations of infidelity and the importance of ‘established family units’ – Sara Mansoori

28 01 2015

Danny SimpsonAn allegation of infidelity is defamatory, but an allegation of infidelity which imperils or destroys a home and family unit is particularly disreputable. This was the position adopted by Danny Simpson, the Premier League footballer, at the trial of a preliminary issue on meaning in respect of an article published in the Daily Mirror in November 2012.

In a judgment handed down on 21 January 2015 ([2015] EWHC 77 (QB)) Warby J agreed with him and, as a consequence, struck out the newspaper’s particulars of justification.

Mr Simpson brought libel proceedings in respect of an article published in the Daily Mirror on 16 November 2012 under the headline “She’s Tu Cruel” and the following taster and photo captions: “Exclusive: Prem star’s pregnant girlfriend… Tulisa is just a home wrecker … I’m devastated” “FAMILY Danny, partner Stephanie Ward and baby”.

Mr Simpson applied for the meaning of the words complained of to be tried as a preliminary issue and for the particulars of justification to be struck out as disclosing no reasonable grounds for defending the claim. Mirror Group Newspapers applied for permission to commence contribution proceedings against Stephanie Ward, who it claimed was the source of the story.

The article complained of is set out in full in the judgment and both parties agreed that it alleged that Mr Simpson has been unfaithful to his long-term partner, Stephanie Ward, by entering into a romantic relationship with Tulisa Contostavlos, however the parties’ pleaded meanings contained important differences.

Mr Simpson alleged that the article meant:

“(1) by entering a romantic relationship with the celebrity Tulisa Contostavlos, the Claimant was unfaithful to his partner Stephanie Ward, with whom he was in a stable, long-term and committed relationship, living together with her and their daughter as a family, despite Miss Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child.

(2) in so doing, the Claimant callously destroyed the secure family unit that his long-term partner and infant daughter had enjoyed and which was soon to be joined by the child they were expecting.”

 The newspaper relied on the following Lucas-Box meaning (the underlined words being in a draft Amended Defence used at the hearing):

 “that by entering a romantic relationship with the celebrity Tulisa Contostavlos, the Claimant was unfaithful to his loyal and long term partner Stephanie Ward, with whom he was still in a sexual and long term relationship, who was the mother of his child and who, as she had told him, was pregnant with another child of his, thereby upsetting Stephanie Ward and bringing their relationship to an end.”

The main issues that Warby J had to determine in relation to meaning was whether, as the Claimant argued, the article portrayed him and Ms Ward as being, before the relationship between him and Tulisa Contostavlos, “in a stable and committed relationship, living together with their daughter as a family“; and whether the words meant that his behaviour had destroyed a “secure family unit“.  This was important as the particulars of justification did address the allegation of infidelity but did not seek to justify an allegation that Mr Simpson had broken up a secure family unit.

Warby J, having referred to the well-known principles that apply when determining the natural and ordinary meaning of the words as set out by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 [14], found that the article did suggested that Mr Simpson was living in a committed relationship with Ms Ward as an established family unit ([20] – [21]):

The reader of these articles is given firm signals, and could not miss the messages that there had been infidelity by the claimant with Ms Contostavlos, and that this made her a “homewrecker” – an activity in which the claimant had clearly played his part – and that as a result Ms Ward was “devastated”, and now wanted nothing more to do with the claimant. The word “home” in “homewrecker” is mainly metaphorical. It indicates that there was in existence an established family relationship between two or more people. But the word also suggests a family living together in the same dwelling. When the word “homewrecker” is used four times in an article, the clear and dominant impression conveyed is that a family unit, sharing a home, has been wrecked or broken up.

The detail in the articles supports this. The family unit clearly consists of the claimant, Ms Ward, and their daughter. Striking features are the two pictures of the three together, each with the caption FAMILY. One of those is prominently placed by the masthead on the front page. The article gives the impression that the relationship is established, continuous and committed. Ms Ward is repeatedly described as the claimant’s “girlfriend”, which is evidently how she is known to Ms Contostavlos (paragraph [7]). There is the word “together” and two references to a 6 year relationship, with no suggestion of any gap. In addition, I noted that the claimant is said to have been upset and to have apologised repeatedly to Ms Ward. That is consistent with the claimant acknowledging a commitment and obligation to her. The statement that the claimant and Ms Ward “share” a “home” in Newcastle naturally suggests in context that they live together there, with their daughter.

After setting out what he found the natural and ordinary meaning to be (see [24]), the Judge then considered whether the particulars of justification ought to be struck out. He found that an allegation of breaking up an established family unit, living together, which includes one young child and another on the way is behaviour significantly different from bringing an end to a relationship between a couple who are not living together in an established family unit. The impact on the family members, and in particular the child and unborn, is likely to be very different (at [32]).

Accordingly the Judge held that no reasonable tribunal of fact could conclude that the defendant’s meaning meets in full the true defamatory sting of the words complained of (at [33]); although he noted that the facts and matters set out in the Particulars of Justification could be used in mitigation of damages following Burstein v Times Newspapers Ltd [2001] 1 WLR 579 (at paragraph [39]).

Finally, the Judge allowed the Newspaper’s application to join Stephanie Ward as a Part 20 Defendant.  It alleged that she was the source of the story and that accordingly it would be just and equitable for her to be made to contribute to the damages if the newspaper was found liable. The Judge allowed the application stating that “there seems to be no reason of principle why, in appropriate circumstances, a source may not be held liable to contribute to damages payable by a publisher to whom the source has provided a story for publication” (at paragraph [43]).

Comment

It has, in recent years, become increasingly common for libel actions to have the issue of meaning determined as a trial of a preliminary issue, see for example, within the last few months, HRH Prince Alwaleed Bin Talal Bin Abdulaziz A Saud v Forbes [2014] EWHC 3823 and Hamaizia and another v The Commissioner of Police for the Metropolis [2014] EWHC 3408 This can be a useful way of clarifying the issues between the parties and assisting the resolution of cases where the main disagreement preventing settlement is a dispute about meaning.

As well as being another example of a preliminary issue meaning trial, this case acts as a useful reminder for those involved in pre-publication advice to pay careful attention to headlines, ‘tasters’ and photographs captions. These are often included after the main story has been written and tend to pick out and repeat part of the key text. However these later additions can result in the article obtaining a slightly different meaning and a shift in focus.  This can be critical as was demonstrated in this case where the use of the words “family” and the repeated use of the word “homewrecker” were important factors in the Judge’s reasoning in favour of the claimant.

Finally, it is worth defendant publications considering whether there could be tactical or financial advantages to joining the source of their story to the proceedings, as was done here.  It is suggested in the judgment that Ms Ward had resumed her relationship with Mr Simpson in July 2013 and that she had indicated that she would be supporting him in his claim.  Adding her as a Part 20 Defendant certainly does make for a far more interesting trial.

Sara Mansoori is a barrister at Matrix Chambers practising in Media and Information Law.

 


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