In a judgment handed down on 28 April 2010 (([2010] EWHC 924 (QB)) Mrs Justice Sharp granted The Telegraph summary judgment against Robert Dee, the professional tennis player accused by the paper of being the “world’s worst tennis pro”.  The judgment was discussed in an earlier posting on this blog.

Mr Dee had been so described when he won his first match after suffering 54 consecutive defeats. He complained the article meant he was “the worst professional tennis player in the world”. The paper published two articles, one on its front page and one in the body of the newspaper. Mr Dee complained only about the front page article. The grant of summary judgment on the issue of justification was perhaps predictable. It was the treatment of the issue of the front page article which was alarming.

The Front Page Issue

David Price (appearing for The Telegraph) relied on the well established principle that where an article refers to another article in the same issue either party is entitled to have both articles read for the purpose of determining the defamatory meaning which the publication bears. Although it is not so stated in the judgment, presumably David Price submitted that this principle applies even where the first article is on the front page, and the second article is elsewhere in the paper.

Andrew Caldecott QC submitted that the authorities did not determine whether two separate articles in different parts of the same newspaper “must be treated as having both been read by all readers for the purposes of meaning”. However, the importance of this case is that the article complained of by Mr Dee was on the front page – although the article made reference to the “Full Story” being in an inside section of the newspaper. His submission concerning the issue of the front page is summarised by the judge as follows:

“Hundreds of thousands of readers – and probably the majority – will have read the front page article without reading the Sports Supplement at all (let alone the piece about the Claimant) and… this reality should be reflected in the Court’s approach.”

The reality is that the vast majority of the readers of this article will have read only the front page because the paper will have been visible on newsstands at thousands of shops, train stations, underground stations, bus stations etc around the country. It would have been held up to camera and summarised by newsreaders on the late evening news the previous day, and on breakfast television programmes and radio stations around the country. Accordingly the overwhelming majority of those who will have seen the front page article and absorbed its content will not have purchased the paper and therefore will not have read any of it apart from the front page.

The judge said that

the key question … is 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.”

She said that this fiction (as it plainly is) should be maintained “even though the reality is that many people will have read one of the relevant articles only.”  Here then is her conclusion:

In this case the front page article was a limited one of a kind known as “the write-off” commonly put on a front page to invite attention to the “full story”. There was a very clear cross-reference in the front page article itself in bold type to the “full story” and the reader was told where to find it. There was an obvious and clear link between the two. It would also have been obvious to all readers of the front page article that read alone, it did not constitute or purport to be the full story. In my view, in the light of the clear and close connection between them, the two articles must be read together for the purpose of determining meaning; and the contrary is not arguable.” (emphasis added)

As the judge has conceded in her judgment, this is to set what is a convenient legal fiction against reality. She asserts that readers of the front page article will have known that it did not constitute the full story. But since she based these decisions on the “bane and antidote principle” and case law, where an article that contains a “bane” and also an “antidote” must be read as one, it is surely not enough to say that the readers of the article complained of were aware that there was another article. To apply this principle, they must have been aware that it contained an antidote, which they plainly were not in this case.


Press corporations use lurid and inaccurate front page articles/headlines to persuade people to buy their papers. This judgment licenses that activity, which not only amounts to a deception by newspapers on the purchaser, but also trades the reputation of the subject matter of such articles for the profit of the newspaper publisher.

This is neither just nor in the interests of society. It is therefore not an activity which needs to be protected under Article 10 of the European Convention on Human Rights. If newspapers elect for commercial reasons to publish inaccurate and/or rights-infringing material on their front pages which they know will be read by millions who will not read any other part of the paper, then those newspapers should bear the commercial risk of so doing.

Jonathan Coad,  Partner in Swan Turton and head of the firm’s Litigation Group.  This post originally appeared as a Swan Turton e-bulletin.