An unusual action for libel based on a cartoon depicting two politicians was dismissed on 10 May 2012 by the Royal Court of Jersey. Sir Charles Gray, sitting as a Commissioner, with two Jurats (of which, more later), entered judgment for the plaintiffs on the basis that the cartoon was not defamatory (Pitman v Jersey Evening Post  JRC 92).
The plaintiffs were husband and wife and were Deputies in the States of Jersey Assembly (“the States”). They were members of the Jersey Democratic Alliance, a left of centre party which to aimed to pursue a social justice agenda.
The plaintiffs complained of a cartoon which showed the them gazing at each other above a rosette endorsed with the name “Pitman” and surrounded by banknotes, accompanied by the words “4x the salary darling!” (“the Cartoon”). It was part of a full page cartoon in the property section of the Christmas Eve 2008 issue of the first defendant’s newspaper, the Jersey Evening Post. The cartoon was headed “Broadlands” – the name of the second defendant’s estate agency. It contained a dozen or so sketches depicting well-known Jersey personalities, including the plaintiffs.
The plaintiffs contended that the Cartoon, including its caption, bore the natural and ordinary meaning that they were money-grabbers who were motivated to seek election to the States purely or mainly for the financial reward it would bring them, namely a fourfold increase in salary.
In the alternative, the plaintiffs relied on an innuendo meaning, namely that the plaintiffs were money-grabbers who had deceived the electorate by deliberately misrepresenting to them that they were seeking election for altruistic reasons when in fact they were doing so purely or mainly for the financial reward it would being them, namely a fourfold increase in salary.
The second defendant relied on the surprising contention that the Cartoon was simply a reference to the fact that the plaintiffs would be able to obtain a mortgage worth four times their joint salary.
At the trial, the defendants argued
(i) that where words or images were published in a humorous context the threshold of seriousness was particularly difficult to surmount.
(ii) that where a plaintiff is well known to the public, this public position was relevant to the question of whether the words complained of bore a defamatory meaning.
They further argued that
“the images of the Plaintiffs and the accompanying words, appearing as they did in a seasonal cartoon placed by an advertiser (the 2nd Defendant), would be unlikely to be taken by ordinary reasonable readers to be serious factual assertions about the Plaintiffs’ pre- and post-election earnings. At most the cartoon might have conveyed the impression that the Pitmans were enjoying the financial rewards of office … [which was] is not a defamatory meaning“.
In the judgment the “Commissioner”, the retired English libel judge Sir Charles Gray, set out the legal background and the contentions of the parties but did not rule on the issue of meaning. This was one for the two “Jurats”. Sir Charles Gray explains that, “in accordance with the established practice in Jersey” he retired with the Jurats to assist them with the law but did not express his own view.
The Jurats discussed the question as to whether the Plaintiff had succeeded in satisfying them that the Cartoon and its caption were defamatory. They took into account, among other matters, the fact that the Cartoon was published in the Christmas Eve advertising section of the newspaper, that the heading included the words “Happy Christmas from all the team at Broadlands” and the fact that, as active politicians, the plaintiffs may be expected more robust than others.
Ultimately, the Jurats decided that the Cartoon was not defamatory of the Plaintiffs in its natural and ordinary meaning and did not accept that it would have been understood to bear the innuendo meaning pleaded. As a result, the claim was dismissed with costs.
As the issue of the meaning of the Cartoon was decided by the “Jurats” there is no reasoned judgment on the meaning issue. This means that there is no indication of the view taken as to the actual meaning of the Cartoon (save that it was not defamatory). In accordance with well established law, the Jurats were not bound by the plaintiffs’ meanings but should have considered any possible defamatory meaning of the Cartoon.
The decision on meaning does appear to give rise to difficulties. Although the context of the advertising section and the attempt at humour have to be taken into account, it is somewhat to see what the Cartoon could have conveyed to an ordinary reasonable reader if not some adverse imputation on the financial motivation or dealings of the plaintiffs.
The linking of the reference to “4x the salary” with the plaintiffs and what was presumably intended to be political rosette garnished with money can hardly be intended to convey information about the salary multipliers available to the second defendant’s customers. An ordinary reasonable reader would, surely, have inferred that the plaintiffs had abnormal and amusing degree of attachment to their political salaries.
The imputation that someone who claims to be an idealist is really in politics for the money would obviously be defamatory. Given that there was no defence of “honest comment”, the plaintiffs would then have succeeded. Questions as to the amount of actual damage caused by the Property supplement and whether the plaintiffs should have had thicker skins would, of course, have been relevant to damages.
The role of the “Jurats” is interesting more generally. There are 12 Jurats in Jersey, appointed by an Electoral College and serve until they are 72. The role is unpaid and involves several months’ work a year. As might be expected the Jurats are generally retired people. It might be thought that the advantages of having 12 randomly selected lay people decide on the meaning of words (which has, traditionally, been central to the English law of defamation) is lost if the decision is made by two longstanding members of the Royal Court.
A final point which arises from this case concerns the interim decision on the admissibility of evidence on innuendo meaning. At a hearing on 26 March 2012 Sir Charles Gray ruled that it was not permissible for the plaintiffs to adduce evidence to support the innuendo meanings which witnesses understood the words to bear ( JRC 69).
It is interesting to note that in reaching this conclusion he differed from the current edition of Gatley on Libel and Slander which states
“Where the claimant has pleaded an innuendo he may, in addition to calling evidence of the extrinsic facts on which he relies, call witnesses to state the meaning in which they understood the words. The origins of this rule are the same as that which applies to evidence concerning the identification of the claimant.”
In reaching this conclusion Sir Charles Gray relied on the recent decision of the Court of Appeal in Baturina-v-Times Newspapers  1 WLR 1526 where Sedley LJ expressed the view (without citation of authority) that even in an innuendo case the a claimant is not “entitled without more to put into the witness box a series of witnesses to say on oath what they made of the publication”.  This can, however, be contrasted with evidence of what was said by one of the publishees following publication of the words complained of which Tugendhat J in Lewis v Commissioner of Police ( EWHC 781 (QB)) held was.evidence which goes to damages and could also be be relied on as relevant to meaning .
Libel actions are very rare in Jersey and, unsurprisingly, this result was welcomed by the local media. There is a report on the case with interviews with various participants on Channelonline TV.