deeIn February we did a post about the argument in the case of Dee v Telegraph Media Group, in which the defendant newspaper was making a bold application for summary judgment.  Judgment in the case was given today, 28 April  ([2010] EWHC 924 (QB) by Mrs Justice Sharp. 

She decided decided that, although the words were arguably defamatory “there can be no rational conclusion other than that the claim of justification must succeed” and, as a result, grant the defendant summary judgment.  The judgment deals with a number of interesting issues.

Facts

The claim was made by a professional tennis player, Robert Dee (pictured) who had lost a lot of matches.  On 23 April 2008 in the Daily Telegraph published material on the front page and on page 20 of the Sport section under the headings “World’s worst tennis pro wins at last” and “A British tennis sensation – the world’s worst”.  The story was repeated by a number of different media outlets and Mr Dee brought a number of claims, all of which apart from the Telegraph appear to have settled.

The claim form against the Telegraph was issued on 21 April 2009.  The claimant alleges that the words complained meant that:

“until his win at the Reus tournament near Barcelona, the Claimant had lost 54 consecutive professional matches during his three years on the professional tennis circuit, and had therefore proved himself to be the worst professional tennis player in the world.”

The Defence denied that either article was defamatory and advances substantive defences of justification and fair comment in relation to the following meanings:-

5.1.  The Claimant lost 54 consecutive matches in straight sets in tournaments on the international professional circuit; and/or

5.2.  The Claimant lost 54 consecutive matches in straight sets in tournaments that contribute to a player’s world ranking;

5.3.  In consequence, he merited being ranked or described as the world’s worst professional tennis player.”

On 17 December 2009, the Defendant applied for summary judgment on the basis that the articles were not capable of being defamatory and, in any event, he had no real prospect of rebutting the justification and/or fair comment defences.   This is the Defendant’s Primary Skeleton Argument in support of its application for summary judgment and this is the Defendant’s Single Meaning Skeleton.  This is the Claimant’s Skeleton Argument in opposition to the application.

Judgment

In her judgment Mrs Justice Sharp dealt with three issues.   The first issue was whether the front page material and the article in the “Sports Section” should be read together for the purposes of determining meaning.  The key question was

“whether the various items under consideration “were sufficiently closely connected as to be regarded as a single publication” – and this is so whether or not the items in the same publication are continuation pages or different items of published material relating to the same subject matter” [29].

She pointed out that the ordinary rule was that articles in the same publication relating to the same subject matter should be read together.  It did not matter that many people  will have read on of the relevant articles only.  In this case the front page article was of the type known as “the write off” – inviting attention to the “full story” and, as a result, she accepted the Defendant’s contention that the “the two articles must be read together for the purpose of determining meaning” [32]

The second issue was whether the articles complained of were arguable defafmatory of the Claimant.  The Judge had no trouble in concluding that the words did bear a defamatory meaning – although not the one pleaded by the Claimant.  Having considered the cases on lack of professional competence (in particular Drummond-Jackson v BMA [1970] 1WLR 688), commenting that

“the cases grouped together in Gatley at paragraph 2.35 under the heading “Entertainment” and which deal with “sporting libels” (save possibly so it seems to me for Hoeppner and Hackenschmidt) come nowhere near this case on the facts, concerning for example the throwing of matches, or the taking of performance enhancing drugs. It is of course possible that one of the reasons that the libel courts are not normally troubled by sportsmen or women complaining that they have been defamed by an allegation of want of skill, is that such an allegation might be an obvious value judgment as I have said. Alternatively, they might think their efforts were better spent elsewhere”. [54]

Nevertheless she was prepared to accepted that the words were  capable of being defamatory on the grounds that they imputed “want of skill” or incompetence or, alternatively, on the basis that the real complaint was one of “ridicule”, “that the Claimant was made to look absurdly bad at tennis” [55] (see Berkoff v Burchill and Times Newspapers Ltd ([1996] 4 All ER 1008).

The third issue was the crucial one: was the plea of justification or fair comment bound to succeed?  After considering the background, the Judge came to the view that there were only two essential points of difference between the parties relevant to justification:

“First, do the articles suggest – or are they capable of suggesting at this stage – that the Claimant’s run of 54 losses represented the whole of his professional record.  Are they therefore capable of suggesting that the run of consecutive losses by the Claimant comprised the only professional matches he had ever played, and that he had never won any professional match until his victory [which broke the sequence]? [105] …

Second, are the articles capable of suggesting that literally, objectively, and verifiably, the Claimant is the world’s worst tennis professional?” [107]

On the first issue the judge held that an ordinary reader could not draw the conclusion that the 54 losses represented the whole of the Claimant’s professional record.  The article did say that the Claimant had played other matches and suggests that he had had some success.  Furthermore, she did not consider that

“a reasonable and sensible reader could really think that the suggestion that the Claimant was “the world’s worst” or the “world’s worst tennis professional” was a free standing and objectively verifiable allegation independent of his record of losses in the 54 matches played all around the world” [119]

The undisputed or incontestable facts were that the Claimant had lost 54 consecutive professional tennis matches which was the world record equalling worst ever run of losses on the international professional circuit.  Although he won professional matches in Spain they were not part of the “circuit” and did not attract ranking points (see Judgment, [121]).

As a result,

“there is nothing, as a matter of reality, of which the Claimant actually complains that cannot be justified; and the facts are sufficient to justify any defamatory meaning the words complained of are capable of bearing. There can be no rational conclusion other than that the claim of justification must succeed” [122].

The judge’s final point was that it was not immediately apparent “how the claim would be likely to restore or enhance the Claimant’s reputation in any event”

Discussion

The judgment is a comprehensive victory for the media defendant and, it might be thought, a triumph for common sense.  The article did ridicule the Claimant but this was on the basis of his – admitted – very poor record in professional tennis tournaments.   The judge re-affirmed the technical but understandable principle that publications must be looked at as a whole.  Overall, this judgment shows that the Courts are willing to be robust when weak libel claims are brought and that the media do not, in fact, lose every case.

Finally, there is an interesting Conditional Fee angle on the case.  Both parties had the benefit of Conditional Fee Agreements (although the Claimant’s was only a 50% CFA).  The Defendant proposed a costs cap of £50,000 and a neutral evaluation.   This was not agreed.  The Claimant’s Estimate of base costs to the conclusion of the action was £506,331.81 as against the Defendant’s base costs estimate of £91,172.   We assume that the Claimant’s ATE insurers will now be faced with a substantial bill for costs and that his lawyers will have a considerable amount of work in progress to “write off”.

Update: The Telegraph has reported its victory under the headline “‘World’s worst’ tennis player loses again“!