Preliminary hearings on meaning are becoming the norm in defamation actions, as parties view them as a relatively cheap and efficient way of determining a key issue at the outset. In Barron MP & Others v Jane Collins MEP  EWHC 1125 (QB), three Labour MPs for constituencies in the Rotherham area brought a libel action against a UKIP candidate over a speech she made at the UKIP Conference.
The hearing was to determine meaning; whether the words were fact or comment; and whether the words referred to the third claimant (as none of them were named). Mr Justice Warby’s judgment provides a useful insight into how – from a practical, as well as legal, point of view – he approaches meaning applications. It is interesting too because the judge concluded that the words bore a higher meaning than either party was suggesting.
The speech was broadcast live on the BBC Parliament channel and republished in whole or in part on the UKIP website, Twitter, and the Press Association Mediapoint wire service. The speech took as its main theme the sexual exploitation of children in the Rotherham area, which had become a national scandal following a report by Professor Alexis Jay, published in August 2014.
The Defendant’s speech is set out in full in the judgment with the keys words underlined. It is not repeated in this post as it is quite lengthy but it can be found at paragraph 9 here. While none of the three Claimants were named, there were references to “many others that still have questions to answer, and possibly charges to face, this includes the three Labour MPs for the Rotherham area”, following which the Defendant said, “I am convinced that they knew many of the details of what was happening. I am now calling for criminal charges to be brought against those who it can be proved knew about the abuse, who failed to act – because in failing to act they aided and they abetted the perpetrators and they are just as guilty.”
In approaching his task Warby J explained that he viewed the BBC recording of the speech once, knowing from the application notice and the introductory parts of the skeletons what the issues were, but before reading the meaning complained of, or the detail in the skeleton arguments. The judge makes the following points about how he approached the task:
- He bore in mind that this was a speech and not an article, or online, therefore the decision was how the speech would strike the hypothetical ordinary reasonable viewer and listener hearing and seeing it once only. He focused on the speech as delivered, its rhythm and emphasis, and its overall impact on the ear and eye and relied on a high quality recording of the BBC Parliament channel broadcast .
- He took into account the fact that the statements were part of a rallying cry to the ‘party faithful’ and that the speech was made to an audience, reasonable members of which can be taken to have understood, and made allowance for the fact, that political expression will often include opinion, passion, exaggeration, and even inaccuracy of expression .
- However he noted that the speech was delivered from notes and that the reasonable audience member would have understood the defendant’s words to be ones that “had been chosen, weighed, and considered before they were delivered” .
- When considering meaning he considered the words used carefully, including the repetition of the word “together” three times which suggested that the Defendant was aiming her words at the Labour politicians collectively. The word “conspired” adding greater weight to the collective nature of the allegation .
- He also took into account the gestures used by the Defendant as she spoke, which included “emphatic pointing”  and “emphatic hand gestures” .
He made a note of the meanings that he took from the speech and, having reconsidered them in light of Counsels’ skeleton arguments and the oral arguments, was not persuaded to depart from his initial findings. As is clear from the various meanings set out below, the meaning that the Judge found was a higher one that either party put forward.
The Claimants had put forward the following meaning which was an allegation of fact:
That the Claimants “knew of the horrific sexual abuse of around 1,400 children in Rotherham over sixteen years but failed to act, keeping quiet and allowing the abuse to continue because it suited their political purposes.”
The Defendant claimed the meaning was of the following opinion:
That the Labour MPs in Rotherham at the time the sexual exploitation was rife “are likely to have known that sexual exploitation was a serious problem in the area.”
If the Defendant was wrong about that and the allegation was of fact it meant:
“in light of the widespread knowledge amongst members of the Labour Party in Rotherham, which had been running the council for years, that child sexual exploitation was rife in the town, there are reasons to believe that the Claimants, as members of the same political party and MPs at the time, knew that sexual exploitation was a serious problem.”
The judge found the following three meanings, the first of fact and the latter two of comment:
Each Claimant “knew many of the details of the scandalous child sexual exploitation that took place in Rotherham over a period of sixteen years, in the course of which an estimated 1,400 children were raped, beaten, plied with alcohol and drugs, and threatened with violence by men of Asian origin, yet deliberately chose not to intervene but to allow the abuse to continue.”
That they “acted in this way for motives of political correctness, political cowardice, or political selfishness”, and
That each “was thereby guilty of misconduct so grave that it was or should be criminal, as it aided and abetted the perpetrators and made the Claimants just as culpable as the perpetrators.”
The claim will therefore continue based on the meanings found by the judge; as he observed, it was no part of his task to determine whether those meanings are, or may be, defensible.
The increasing tendency to have meaning determined as a preliminary issue is likely to continue and ‘capability hearings’ should become a thing of the past. Previously there were procedural difficulties with such applications, as meaning was an issue of fact left to the jury; however s.11 of the Defamation Act 2013 now provides for trial without a jury unless the court orders otherwise. Moreover, it had previously been thought that the court was bound by the Claimant’s meaning as the high water mark and could only find a lesser meaning (see Gatley on Libel and Slander, 12th ed, para 34.8) but this case suggests that this will no longer be the case and that on meaning applications the court will set out whatever meaning it considers the words bear.
Sara Mansoori is a barrister at Matrix Chambers practising in Media and Information Law.