Case Law: Brown v Bower, Judge rejects parties’ agreement as to what is defamatory – Emma Foubister

8 11 2017

In the case of Brown v Bower [2017] EWHC 2637, the High Court considered the proper application of the repetition rule in determining the meaning of a statement about an MP in a book about the Blair government. Nicklin J made interesting observations about whether the statement was defamatory and the effect of the parties’ agreement that it was.

Background

The claimant, Mr Brown, has been the MP for Newcastle upon Tyne East since 1983 and is a member of the Labour Party. The first defendant, Mr Bower, is an investigative historian, broadcaster and journalist. The second defendant, Faber & Faber, is a long-established publishing house.

The case concerned a libel claim about a passage in Mr Bower’s book “Broken Vows – Tony Blair, the Tragedy of Power”, published by Faber & Faber in March 2016. The passage complained of is at p. 104:

“In the ensuing discussion about gays in politics, journalist Matthew Parris declared on BBC TV that Mandelson was gay. Days later, Nick Brown, the new minister of agriculture, was accused by the News of the World of paying £100 to rent boys in order to be kicked around a room, and admitted to his sexuality.”

Proceedings were issued on 17 February 2017 and, following a hearing in June 2017, Warby J ordered that (a) meaning; and (b) whether the words were ‘defamatory’ at common law should be tried as preliminary issues.

Mr Brown contended that the words meant “that the claimant had been paying £100 a time to young male prostitutes to subject him to violent sexual acts or that there were strong grounds to so believe”.

Mr Bower invited the court to find that the words meant “that there are grounds to suspect Nick Brown may have paid young men for consensual rough sex”.

Judgment

Repetition rule

The repetition rule, that it is no defence for a defendant to prove that he or she was only repeating what someone else had said, is relevant to determining the single meaning of a statement [19]. It cannot be applied mechanistically and it takes its place alongside the other matters to which the Court must have regard when determining meaning [28]. To suggest that the claimant is guilty of the act (Chase level one), the effect of the publication has to be the adoption or endorsing of the allegation, and the converse is also true [30]. Taking responsibility for a statement’s further dissemination does not mean that the Court is bound to find that the defamatory meaning that attaches to the repetition is the same level as the original allegation [32].

Meaning

The meaning that the ordinary reasonable reader would understand the words complained of to mean is that

at the date the allegation was made by the News of the World, there were grounds to suspect that the Claimant had paid young male prostitutes to subject him to rough consensual sex” [40].

The defendants have not adopted and endorsed the allegation as their own but they “take responsibility for its further dissemination”. No reasonable reader could conclude that the sex was non-consensual, and if that were part of the meaning, it would completely change its gravity. It would be wrong to qualify the grounds to suspect with an adjective such as “strong” because a reader cannot assess the strength of the case against Mr Brown on the information available. The words “rough sex” capture the nature of the sexual acts and the term “young male prostitutes” is the clear meaning of “rent boys” [41].

Is the meaning defamatory at common law?

Following the preliminary hearing, the defendants unexpectedly conceded that the meaning was defamatory at common law [45]. The issue of whether paying for sex or enjoying rough sex are defamatory is controversial judged by 2017 standards and raises difficult questions [46]-[48]. The parties’ agreement creates potential difficulties, such as the awarding of damages, which must reflect the seriousness of the allegation and the harm to Mr Brown’s reputation [49].

Mr Brown’s position was that it was defamatory to say: (1) that he had paid for sex; (2) that he had visited or used the services of prostitutes; (3) that he enjoys violent or rough sex; or (4) that he has asked to be subjected to violent or rough sex [51]-[52]. However, the defendants said these statements were defamatory of Mr Brown only in the context of his being an MP [52]. Nicklin J inclined towards the view that it is not possible for the same natural and ordinary meaning to be defamatory of one citizen but not defamatory of another [55].

The parties’ agreement has the potential to keep alive an action which, if the statement were found not to be defamatory, would otherwise have been brought to an end. That would add to, rather than reduce, the workload of the court [58]. Nonetheless, the best course was not to make a ruling but to adjourn the question of defamatory meaning to be resolved, if necessary, later in the proceedings [61].

Comment

Nicklin J’s approach to the repetition rule clarifies its role in determining the single meaning of a statement. Rather than operating as a blanket rule, the repetition of an allegation has to be judged looking at the publication as a whole. Context is everything and the question remains what would the words convey to an ordinary reasonable reader.

This case illustrates the challenges facing courts in ensuring that court resources are used appropriately and proportionately. Nicklin J is critical of the parties’ agreement, which, though born of expediency, may ultimately result in litigation of a non-defamatory meaning. It is a reminder to parties in future proceedings of the potential difficulties in agreeing issues, even where the purpose is to avoid wasted costs if an issue is appealed.

Nicklin J’s concerns stem from his reluctance to accept that a statement can be defamatory of one citizen but not another. He thinks it would be necessary to either (1) spell out why the statement is defamatory of him in a natural and ordinary meaning or (2) he must plead an innuendo meaning [55]. To make such an argument, claimants may wish to outline precisely how the statement is defamatory in light of their position, particularly where differentiation of meaning depends on extrinsic facts.

Emma Foubister is a trainee barrister at Matrix Chambers


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