On 28 February 2013 the Court of Appeal delivered judgment in Waterson v Lloyd [2013] EWCA Civ 136. The decision grapples, once again, with the elusive distinction between fact and comment in the law of defamation. By a majority, the Court of Appeal held that publications by a political candidate criticizing his opponent’s ‘scandalous’ parliamentary expenses claims were statements of comment, rather than statements of fact.
The case illustrates the difficulty of distinguishing between fact and comment in libel actions. Of the four judges who considered the issue, two thought the challenged words were statements of fact (Tugendhat J and Richards LJ) while two thought they were statements of comment (McCombe and Laws LJJ).
Although the decision provides little fresh guidance on this thorny issue, Laws LJ’s judgment contains an interesting discussion about the relevance of context – in particular the fact the articles were political speech published during an election – to the honest comment defence. It also reflects the growing influence of Strasbourg jurisprudence on English defamation law.
Factual Background
The claimant was the former Conservative MP for Eastbourne. In the run up to the 2010 General Election, the claimant’s Liberal Democrat rival, Stephen Lloyd, published two pieces of campaign literature that criticized the claimant’s parliamentary expenses claims. After losing to Mr Lloyd at the election, the claimant began libel proceedings against Mr Lloyd and his agent in respect of the publications.
The first publication was in the ‘Sussex Courier’, a free ‘local newspaper’ produced by the Liberal Democrats and consisting entirely of campaign literature. The front page bore the headline ‘Expenses scandal MP faces defeat’. An article below said taxpayers had paid almost £70,000 during the last four years towards the cost of the claimant’s family home, which was over 60 miles away from his constituency. It added that the MP had also claimed for food, cleaning and utilities and spent over £1,000 of taxpayers’ money redecorating his garage door.
The substance of the statements was repeated in a ‘Comment’ column on the following page under the headline ‘Expenses scandal: Eastbourne residents speak out’. The article included the following passages:
“Local residents have delivered their verdict on the MPs’ expenses scandal. Eastbourne’s Conservative MP Nigel Waterson has come under fire in recent months for his own scandalous expenses claims. Mr Waterson claimed almost £70,000 for the mortgage on his large family home in Kent, which is over 60 miles away from his constituents. He also claimed over £1000 to have his garage re-decorated. It’s clear that Mr Waterson’s expenses claims have upset many people in Eastbourne.”
The second publication was another Liberal Democrat campaign ‘newspaper’. It contained a column that included the statement: “We’ve seen the scandal of MPs abusing their expenses.” Alongside the column were articles which said the claimant had claimed £70,000 of expenses over four years. Another article described the constituency as a two-horse race and stated: “Voting Labour here in Eastbourne and Willingdon will just let our expenses scandal MP off the hook.”
The claimant argued that by linking criticism of his expenses claims with the overarching parliamentary expenses scandal, the publications meant that he was one of a number of notorious MPs whose expenses claims were unlawful and/or in breach of the Parliamentary rules and/or they were liable to repay the amounts they had received. The defendants argued that the words did not suggest the claimant had broken any rules. Instead, they were a simple comment that the claimant had used the expenses system for his own benefit in a way that was open to criticism.
Meaning and honest comment
The principles for ascertaining meaning and the honest comment defence were largely undisputed. In Jeynes v News Magazines Limited [2008] EWCA Civ 130 the Court of Appeal summarized the basic rules for determining meaning:
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…” (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at paragraph 7 and Gatley on Libel and Slander (10th edition), paragraph 30.6). (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.” Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73″. [14]
In Spiller v Joseph [2010] UKSC 53 the Supreme Court identified the requirements of the honest comment defence as follows:
(1) The comment must be on a matter of public interest.
(2) The comment must be recognizable as comment, as distinct from an imputation of fact.
(3) The comment must be based on facts that are true or protected by privilege.
(4) The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.
(5) The comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.
(6) The comment must not have been published maliciously.
Judgment of the High Court
Tugendhat J held that the defendants’ words would not be understood as meaning that the ‘scandal’ concerning the claimant was the mere fact of making claims for mortgage interest and costs of decoration pursuant to a scandalous system. The articles located their criticism of the claimant in the context of the ‘MPs’ expenses scandal’, which included all the forms the scandal had taken, including MPs whose claims were unlawful, those whose claims breached the parliamentary rules, and those who repaid their expenses voluntarily after being criticized by their parties or by an independent parliamentary audit.
Tugendhat J therefore held the articles would reasonably be understood as meaning that the claimant was guilty of abusing the Parliamentary rules for his own financial advantage. They were ‘plainly statements of fact’. The defendants had made no effort to distinguish what could only be factual statements (e.g. the statement that the claimant’s home was 60 miles from the constituency) from matters they claimed were comment or opinion. On this basis, the Judge entered summary judgment for the claimant.
Judgment of the Court of Appeal
By a 2-1 majority the Court of Appeal overturned the Judge’s ruling and held the words complained of were statements of comment.
McCombe LJ said the meaning of the words was quite simple:
“Mr Waterson has claimed nearly £70,000 from the taxpayer for a family home that is 60 miles from Eastbourne (fact). That is a scandal (comment).’ [53]
McCombe LJ said the claimant’s argument on meaning involved ‘the technique of the lawyer, rather than that of the layman’ [53]. The impugned statements fell squarely within the type of material identified in Myerson v Smith’s Weekly Publishing Co. Ltd (1923) 24 SR (NSW) 20, 26:
‘To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain things and this his conduct was dishonourable is a statement of fact coupled with a comment.’ [56]
There was no express or implied statement that the claimant had acted unlawfully, broken the parliamentary rules or was required to repay sums previously claimed [54]. The conduct on which the defendants’ comments were based was clearly identified [56]. McCombe LJ explained:
‘In the precise factual circumstances identified in the publications it was being said that it was ‘a scandal’ that [the claimant] could and did claim very substantial sums to maintain a family home at the stated distance from his constituency at the taxpayer’s expense. There was, in my view, no allegation of scandal beyond the stated facts. The fact that there was thought to be a wider ‘scandal’ does not alter the position.’ [58]
Paraphrasing from Diplock LJ’s judgment in Slim v Daily Telegraph [1968] 2 QB 157, McCombe LJ said it would be unfortunate
‘for free speech in this country if this kind of controversy on a matter of public though local interest were discouraged by the fear that every word written to be read in haste should be subjected in a court of law to minute linguistic analysis of the kind to which these [papers] have been subjected…’
Laws LJ agreed with McCombe LJ. He added that the political nature of the publications was important. The court must avoid ‘over elaborate analysis’ – a principle that has ‘a particular resonance in the context of political speech’ [66]. While politicians are entitled to protection under the law of defamation, ‘the limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals’ (Jerusalem v Austria (2003) 37 EHRR 25, para 38). Similarly, in Hrico v Slovakia (2005) 41 EHRR 18 the Strasbourg Court observed that, ‘there was little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest’.
Laws LJ said the Strasbourg authorities
‘exemplify…the common law’s increasing focus in this area on the balance to be struck between public interest and individual right: between free speech and private claims, rather than on reputation as akin to a right of property… A political context – and especially at election time – surely informs this balance.’ [67]
Richards LJ dissented. The references to ‘the MPs’ expenses scandal’ and to ‘the scandal of MPs abusing their expenses’ clearly referred to the large number of MPs who made claims that were unlawful, in breach of the rules or improper. These were statements of facts [43].
In the first article the reference to the claimant’s ‘scandalous’ expenses claims came immediately after the reference to ‘the MPs’ expenses scandal’. It therefore suggested a link between the two, insinuating that the claimant was one of those MPs who acted unlawfully, in breach of the rules or improperly [46].
Likewise, in the second article the reference to ‘our expenses scandal MP’ suggested a connection with ‘the scandal of MPs abusing their expenses’. It would not reasonably be read as a mere comment that the fact the claimant claimed expenses for a home a long way from his constituency was scandalous [47].
Comment
Identifying the line between fact and comment is notoriously difficult. That four experienced judges could not agree where the boundary lay speaks volumes about the uncertainty inherent in this area of the law. The divergent judgments will provide little comfort to politicians, journalists and other public commentators.
Nevertheless, the outcome of the Court of Appeal’s decision is a sensible one. As McCombe LJ recognised, in libel litigation it is too easy for a microscopic dissection of words to displace straightforward and commonsense interpretations. The law is designed to compensate claimants for injury to reputation actually caused – a forensic and sterile linguistic analysis is therefore best avoided. Richards LJ’s approach had a distinctly artificial air, whereas the majority’s approach – eschewing over-complicated analysis and focusing on the meaning that an ordinary layman would attribute to the publications – was grounded in reality.
Laws LJ’s judgment provides welcome recognition to the importance of free expression in the political arena. In Lingens v Austria (1986) 8 EHRR 407 the Strasbourg Court said that:
“… freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention. The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others – that is to say, of all individuals – to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues.”
Of course, the deliberate dissemination of false statements about a political candidate can have a harmful effect on democracy. It was for this reason that Parliament enacted s. 106 of the Representation of the People Act 1983, which makes it an offence to publish, for the purpose of affecting any election, ‘any false statement of fact in relation to the candidate’s personal character or honour’. This provision was famously used to annul the re-election of the former Labour minister, Phil Woolas, after he made untruthful statements about his Liberal Democrat opponent during the 2010 general election.
But judges should be wary of letting libel law inhibit legitimate political discussion. Robust exchanges of opinion in election campaigns must not be quelled by the threat of defamation actions. Virulent criticism, puffery and overstatement are inevitable features of democratic debate. Political disputes should generally be settled at the ballot box, not the libel courts.
Edward Craven is a barrister at Matrix Chambers.
“Laws LJ agreed with McCombe LJ. He added that the political nature of the publications was important. The court must avoid ‘over elaborate analysis’ – a principle that has ‘a particular resonance in the context of political speech’”
McCombe LJ said the meaning of the words was quite simple:
“Mr Waterson has claimed nearly £70,000 from the taxpayer for a family home that is 60 miles from Eastbourne (fact). That is a scandal (comment).
Comment from Edward Craven.
Nevertheless, the outcome of the Court of Appeal’s decision is a sensible one. As McCombe LJ recognised, in libel litigation it is too easy for a microscopic dissection of words to displace straightforward and commonsense interpretations. The law is designed to compensate claimants for injury to reputation actually caused – a forensic and sterile linguistic analysis is therefore best avoided.
……………………….
An excellent and timely article above. Thank you.
I agree with the decision and the above extracts in particular. I am a little surprised there was a disagreement between the judges to be honest but perhaps that was due to the tendency to over complicate. Context in defamation claims is crucial and is often ignored by claimants and as we have seen here, causes disagreement and confusion with some judges.
This judgement below (Smith V ADVFN) is an example – not the same situation but I think demonstrates how context is so important and the case throws up several examples of what is fact and opinion. In my view, if anyone wants to get a good grounding in libel, this case is perfect in terms of the many examples given and for ease of understanding due in part to how well written it is. I think this judgement is one that every libel defence barrister should look at as it has so much relevance to so many possible defences. For example, the section of the judgement which deals with over-compensation and multiple defendants would be relevant to Sally Bercow in her case against McAlpine.
Anyway here is an extract from the case where similar types of things were being said in the context of a financial bulletin board discussion. The claimant was a participant in the online discussions leading up to suing multiple defendants which followed a disagreement in which he was labelled a ‘bully’ and his behavior described as ‘appalling’. These specific comments appeared after the claimant asked participants who had insulted him to pay reparations on the public bulletin board for comments he considered defamatory.
When the case went to court the claimant concentrated on the dictionary definitions of the insults etc such as ‘bully’ and ‘appalling’ and ignored the context. The judge observed that context was crucial and a reasonable reader would read the bulletin board and make their own mind up about the claimant, based on the way the claimant was behaving – not by what people were saying about it.
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2008/1797.html&query=smith+and+v+and+advfn&method=boolean
25. Mr Wynne Pearce is a retired solicitor who responded to Dr Jekyll’s call for help when he was asked for money by Mr Smith . Of course, he was not acting in a formal solicitor-client relationship, but he was trying to help (gratuitously) in the light of his professional experience. Even though he was not himself a Langbar shareholder, therefore, there would be a powerful argument that he had a legitimate reason to step in and try to inject some common sense. He was trying to encourage Dr Jekyll not simply to pay up out of stress and anxiety. That would provide a powerful argument to the effect that there was a legitimate common and corresponding interest such as to give rise to a privileged occasion. Furthermore, in using the word “appalling” he was clearly expressing a personal opinion (by no means unique to himself) about Mr Smith ‘s modus operandi and how it was affecting people.
27.Rather laboriously, in his particulars of claim against Mr Love, Mr Smith attempts to define “appalling” by reference to “someone who acted in a manner that causes dismay, horror or revulsion to others”. Yet the remarks on the bulletin board by these multiple defendants were not simply made in a vacuum. Any reader would know the context and recognise the conduct on Mr Smith ‘s part which was being characterised as “appalling” and be able to form his or own view of it. This means that Mr Smith ‘s reputation in the eyes of such a person is likely to depend primarily on what he himself has done, and is known to have done, rather than on what others are saying about it.
It seems to me that the argument in favour of lloyd’s case is false in that the majority judges focussed upon the niceties of language and legal argument. Surely the point is; was the purpose of the wording intended to “smear” the MP by the association of Waterson with the “expenses scandal” in which he was not involved and had been cleared by a Parliamentary committee. Judging by comments from a number of Eastbourne residents with whom I had conversations this false assertion was believed and no critical appraisal of this assertion was evident from them. There is little doubt that this dubious electioneering tactic was planned and an untruth created intended to blacken Waterson’s standing as a person and someone unfit to represent the town. The average, largely unsophisticated, citizen believed this “smear” in its printed form and I fail to see how this wording cannot be seen as a classic example of defamation. If this level of personal, misleading abuse is found acceptable by the High Court, one questions how much lower political discourse can descend. It seems the learned judges in question have quite departed from common sense.
Michael
I understand the point you are making here and accept that some people will take note of the ‘scandal’ headline on the leaflets, perhaps without reading the full facts upon which the opinion was based. It is a bit like people who read the ‘loaded’ headlines in the tabloids about benefit scroungers and the connection with immigration. If they read the facts upon which the newspaper based its headline on, they might not agree with the headline and the message the article is trying to put across. That said, many people who read newspapers know that they are aligned to political parties and that there is often sensationalism and scaremongering used to deliver a message.
However, can we really have a system where candidates in an election take defamation action because some sections of the electorate might be unsophisticated and too lazy to read the facts that an opinion is based on? This was an election and both candidates will always try to win votes even if this is done in a negative way. In the context of an election, an electorate as unsophisticated as they might be, will know that candidates often use tactics which say a tabloid newspaper might engage in as in the example above.
As far as I can tell there was no fabrication or distortion of the facts – the expenses claimed were true and I do not think any allegations were made about breaking the rules. To that extent the electorate can make their own judgement. It remains that the facts upon which the opinion was based were true. The defendant described this as a ‘scandal’ which was clearly an opinion, not a statement of fact.
This is want Justice Eady said about expressing opinions and honest comment. (Smith V ADVFN)
107. Opinions may be expressed in exaggerated and strident terms; the only requirement is that they be honestly held.
Incidentally this is not the first libel case connected to MPs expenses. Jacqui Lait MP lost her case against the Evening Standard when comments were made about her expenses. Perhaps these judgements will now act as a wake up call for other MPs and politicians who are thinking about bringing libel claims to slience free speech and criticism of their behaviour. There is a saying – if you can’t stand the heat, get out of the kitchen.
http://www.taylorwessing.com/news-insights/details/honest-comment-the-single-meaning-rule-and-additional-imputations-2011-07-29.html
This seems to me to be more about meaning than about the distinction between fact and opinion.
As for that vexed distinction, I’m increasingly thinking that the best test is whether there is sufficient indication, in the words, their nature and their context, that the statement is one that readers can disagree with. If judges can’t make up their mind about the difference, I’m not sure how they can expect ordinary readers to.
I think the whole point is that this shows the danger and folly of islolating a group of words and then over- analysing them. The context of the words used in an election campaign is crucial. You need to step back and consider the words in the situation they were used. If you conclude that this is typical of the stuff you might read or hear about in any hard fought election campaign, then any resulting libel case needs to be dismissed. I think sometimes we concentrate too much about meaning of words and dictionary definitions of opinions and not enough about whether real damage has been caused by the publishing of false information upon which opinions are based.
There is a libel case brewing at present in which a share tipster is being sued by a listed company. Usual thing – the tipster states the company has been misleading investors about the prospects for the company and rewarding its directors to the detriment of shareholders. In numerous articles, this tipster has published a detailed timeline of information upon which he bases his views on. In the summaries of the articles he has used a few colourful adjectives and name calling and I think there was one comparision with a Third World Dictator – or something along those lines.
Anyway, when the directors of the company announced they were taking action for libel against the tipster, everyone who used the forum which discussed shares were also debating whether the articles were defamatory or not. There were few relevant observations made about the facts published and upon which the opinions of the tipster were based which I would think would be the crucial issue if the case proceeds. All the comments made concentrated on the published opinions the tipster and the names he called the directors in his articles. For example, one contributor claimed that the directors reputation had been wounded because of the comparision to a Third World Dictator/war criminal.
But no one considered that insult in the context of the articles and the facts upon which the opinions were based. No one even considered that someone might dismiss some of the more colourful adjectives as not to be taken seriously. No one considered the fact that many people had already made a judgement about the directors from their dismal record and what has happened before (rather than what the tipster was saying about it now) No one considered these observations from Justice Eady about a previous case which resulted from opinions on a financial website:
……………….
107. Opinions may be expressed in exaggerated and strident terms; the only requirement is that they be honestly held. It is fanciful to suppose that any of these people did not believe what they were saying. Even if they reached their conclusions in haste, or on incomplete information, or irrationally, the defence would still avail them. It would be wasteful to let proceedings go forward merely on the footing of a series of formulaic assertions to the effect that the individual concerned did not honestly believe what he was saying. There is accordingly no realistic prospect of any such claims achieving the only legitimate goal of vindicating reputation.
…………………..
Personally the scenario which I describe which is unfolding sounds similar to what happened in the case in the article above and I truly think there is a serious deficit of understanding of what libel is from some specialist law firms, libel litigants and perhaps even some judges. The fact that so many claims are dismissed nowadays only confirms that and suggests to me that many claims are simply vexatious, designed by the rich/powerful to silence criticism about some wrong doing – or are simply money making exercises.
In the case of Waterson v Lloyd I think the commentators have been overconscious of interpreting words and and their significance in the calm setting of a court room many months after the use of the words in question. Surely the point of this case, that took place in the heat of an election battle, is that the defendant deliberately printed a falsehood, namely that the plaintiff “was caught up in the expenses scandal” which he was not and furthermore the defendant knew that the plaintiff had been cleared by a House of Commons committee. To my personal knowledge some people accepted the falsehood which is indicative that many others also accepted the wording as fact to the political and personal damage to the defendent
If we are to condone blatant falsehoods in order to protect free-speech then where does it end? There must be a line drawn whatever the justification
of the words in question. To my mind to say “On the subject of welfare for the handicapped Michael Black MP does not know his foot from his elbow” is acceptable whereas “”When it comes to the welfare of the handicapped Michael Black MP would kick away a cripple’s crutches if he could get away with it” is not. If we accept the abuse of the latter as “fair opinion” then we are entering a very uncivilised world, one of the gutter. Are we happy to accept the “big lie” beloved of the unscrupulous dictator?
My learned friends in this instance have been remarkably naive in their view of the defendent’s intention of “honest opinion.” It was on the contrary a deliberate falsehood printed with full knowledge of its potential damage to the plaintiff and should not go unpunished.
Michael Black
I do not think they have been naive at all – just realistic and sensible.
Let’s face it ,the whole expenses issue to most right thinking people was a scandal. Many MPs were involved – a very few were prosecuted but many of the rest would be considered to have ‘milked the system’ and if not criminally liable – were morally wrong. In my view any member of the public who says that the MPs who were criticised (but not prosecuted) were part of a scandal have a valid opinion. Most people know that only a few serious offenders were prosecuted. Surely they would have held the opinion that the candidate’s expenses in the above case was arguably wrong and part of the wider scandal regardless of prosection or what the House of Commons Committee said.
Perhaps I can offer you an analogy which I have used before.
Say you were in court 24 X 7 issuing speculative libel claims against people. You had a history of losing several court cases and you have just issued another 20 claims. The judge criticises your behaviour but does not describe it as vexatious. The judge then dismisses the cases as ‘without merit’.
A newspaper reporter concerned about misuse of the courts describes you in his newspaper article as a ‘vexatious litigant’. Do you think right minded readers would accept that as a valid opinion and honest comment?
Or do you think the newspaper should be sued for libel because at that stage, you had not actually officially been declared a ‘vexatious litigant’ by the court?
In my mind the argument you are pursuing here is similar to someone who would agree with the latter opinion in the analogy. It is just not realistic and if we followed your suggestion, anyone who is justly criticised in the press or on the internet could sue for libel based on a technicality or a comma missing in a sentence. I maintain that the judges here drew the line in the right place. As a Conservative voter (in my local elections) I was dismayed to read that this claim was ever pursued.
I accept that it is very difficult to opine on what is truly libellous and therefore damaging and considerable latitude has to be given in the “knockabout” world of politics where gloves are off and usually acceptable. It certainly should not be a mater of punctuation or legal technicality. Nevertheless surely the question of intent must come into play and in this instance the intention was clear. It was not a misunderstanding or a generalisation but an attempt to falsely blacken the plaintiff’s character. Incidentally the defendant was requested to withdraw the offending use of words before the action was instituted that demonstrates the unwillingness of Waterson to commence proceedings.
My analogy would be the following:
Michael Black is a member of an Eastbourne Association Executive most of whose members have been found guilty of child abuse, but not all. Standing for office elsewhere Michael Black is said to be “caught up in the Eastbourne child abuse scandal” in an editorial in the house magazine [edited by a rival contender] which is then quoted in the local newspaper thus incurring contempt and disgust generally among family, friends and neighbours as well as Mr Black being rejected for the position in question; quite apart from destroying his career. Since the inference of the wording is false in being unproven can we call this fair comment with no redress in law . Hardly justice?
It isn’t good enough to say “They are all at it.”
Michael
This from the article above:
‘The front page bore the headline ‘Expenses scandal MP faces defeat’ .An article below said taxpayers had paid almost £70,000 during the last four years towards the cost of the claimant’s family home, which was over 60 miles away from his constituency. It added that the MP had also claimed for food, cleaning and utilities and spent over £1,000 of taxpayers’ money redecorating his garage door’
The analogy you present is really not the same situation. In your case,there is no evidence of any involvement whatsover in the child abuse and it would be wrong to suggest otherwise – and yes this would be a dishonest and baseless attempt to discredit you.
In this case, Mr Waterson has been implicated because his expenses were controversial and he had been criticised for them. He is not one of the MPs who was prosecuted. Nevertheless he is one of the many whose expenses were considered to be excessive and milking the system. Are we seriously suggesting that the half dozen MPs who were found guilty of fraud and rule breaking are the only ones involved in the scandal? Are we saying that all those who arguably claimed excessive expenses cannot be criticised?
No matter what the intention of Lloyd was, the scandal engulfed all MPs like Waterson who made arguably excessive claims. It does not matter if the police did not prosecute him or the Parliament Committee concluded that he had not broken their rules. Many people do not break rules and stay just within the law but still can be criticised for their behaviour. As my analogy suggested you cannot have a system where people in the public eye can only be criticised for their behaviour if they have been found guilty of breaching specific rules. Waterson was a man in a position of responsibility and the electorate would expect him to behave in line with the moral standards they expect.
The critical point about this is whether the substance upon which the opinion was based is true or not. If the facts were not true, Waterson would have a case. As it is, the substance is true so there is no case. Waterson is complaining because he thinks the opinion is wrong. That’s my understanding anyway.
Defamation claims should be all about vindiction of reputation. Are you really saying that Waterson would have been vindicated with the electorate even though the substance of the story was true but the judges had concluded that he was not part of a ‘scandal’? If you think so, I would be interested in knowing what form any apology would have been accepted had Lloyd offered one after the article appeared.
In the article about Nick Clegg, would his reputation be vindicated if the author of the article withdrew the word ‘scandal’ when describing the practice of government mininsters sending their children to the best schools? Of course not. People know that is the author’s opinion and will make their mind up when reading the facts. The fact that the opinion or words used might be expressed in strident or exaggerated terms is irrelevant. It is the rough and tumble of politics and strictly for the ballet box – not the libel courts.
I think to an extent you have been misled by Mr Lloyd’s line! The relevant point about Mr Waterson’s Beckenham family home is that it is 18 mins from Charing Cross, close to Westminster, not that it was 60 miles from Eastbourne. Mr Waterson also had a home in the Eastbourne constituency where he spent three days a week on constituency business. I’m not sure how many MP’s spend three days in their constituency, not all by any means. The MP’s home was an unfairfair attack but I didn’t expect Mr lloyd to use other than negative tactics, par for the course as you say. The “caught up in the expenses scandal” is another matter.
I re-iterate that Mr Waterson was not found guilty of any offence even if the investigation was less rigorous than it might have been to some observers. We cannot brush that aside or we should question every ruling on the basis that we know better.
In my child abuse analogy there was evidence of common abuse by Committee members although Mr Black was cleared of wrongdoing. Was he just lucky to get away with it; his rival evidently thought so and in good faith. Guilt by association? Is that just?
Incidentally I forgot to mention previously that although a member of the local Conservative Association I was not a supporter of our ex-MP’s candidature. Like yourself I thought it unwise for Mr Waterson to take proceedings. Although not involved in the law I have had personal experience of a libel action and know how tricky a case may be. You may gather I have little time for Mr Lloyd. I thought it pathetic that the Liberal Democrat could not challenge the Conservative on policies and instead descend to mud-slinging.
Finally, I might add that Mr Waterson must have had an arguable case since Mr Justice Tugenhardt found in his favour at the first hearing [not allowing an appeal] while a senior judge also found in Mr Waterson’s favour in the recent hearing.
I would just leave readers with one further thought and another good example of context of words in a political setting and specifically the use of the word ‘scandal’ which was a feature of this case. I think it shows how ridiculous bringing this case was and in the process has demonstrated that on this relatively rare occasion, that two senior judges reached clearly the wrong conclusion.
This is an article in yesterday’s Sunday Mail about selective schools. The writer – a well known right wing journalist implicates Nick Clegg (a liberal) in a ‘scandal’. I think many parents would agree with this article but will Nick Clegg decide to sue Peter Hitchens? Of course not.
Clearly the claimant in the above case had issues about losing the election which he should have taken up with Elections Standards Committee or whoever is responsible. Not a matter for the libel courts at all.
“Nick Clegg claims his son’s new school is a comprehensive? That’s like calling No 10 an inner-city terrace!
By Peter Hitchens
Almost all scandals have consequences. The law is changed or people are punished. Only one enormous scandal goes on happening again and again, and nothing is ever done about it.
It is the way in which our new elite seek selective education for their own children, while ruthlessly denying it to everyone else. Nicholas Clegg is the latest of these revolting hypocrites, and he too will get away with it”.
Michael
In reply to your last post. I think we can agree to disagree. It is an interesting case and I have enjoyed discussing it.
As for Justice Tugendhat you are quite right. He is a senior judge and a good one who hears many of the major libel cases. He has followed in the footsteps of Justice Eady who was the previous head of the Jury List.
I have read many of the judgements of both and they are usually excellent and get to the heart of the matter and deliver the correct judgement. Justice Eady was criticised some time back for his decision not to allow the appeal of Simon Singh ( a science writer/journalist) which was overturned in the end. That case also had issues concerning whether the defendant was stating a fact or opinion.
So, perhaps these particular type of cases are considered the most difficult and turn on the opinion of one judge, Personally having read a fair number of other cases (including some Tugendhat ones) I think Justice Tugendhat was wrong on this. But then on the other hand perhaps I (and the two appeal judges) are over simplifying the case and maybe there were issues which Tugendhat thought should swing the case in favour of the claimant.
Whatever the reason, because of the differing opinions, it shows that at least some judges do make the wrong call. I have also come across cases where clearly the wrong judgement has been made – or more commonly where a very weak libel case has been bounced from one court to another without a decisive judgement being made until many years later. This unreasonably raises the hopes of the claimant and puts untold pressure on libel defendants who are involved in litigation for years, I think this is possibly due to the pressure of a high caseload and the tendency not to get a proper grip on the odd case. It must be difficult for judges faced with bundles of stuff from each party – most of which is probably totally irrelevant.
This is what Tugendhat said in another libel case and something worth bearing in mind for those pursuing libel claims. In this case the court was bombarded with dozens of cases arising from the same online disagreement between online posters who started throwing insults at one another. The case went on for years but was dismissed twice by the lower courts and once at Appeal as as ‘totally’ and ‘wholly without merit’. So the fact that a case is extremely weak does not necessarily mean it is dealt with quickly and the appeal system whilst good in many ways as a safety net, can sometimes prolong claims which do not even deserve a hearing..
http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2010/3255.html&query=smith+and+v+and+advfn&method=boolean
31. It may be that if the claims had been drafted after careful selection, choosing those where the meaning was sufficiently serious to be arguably defamatory and likely to cause significant damage, and where substantial publication could be proved, then there might have been some claim or claims that would have had some merit. But if there were any such claims they were concealed amongst all the claims which are unmeritorious for the reasons stated above.
Anyway – I hope we can have another debate sometime.