The defamatory sting in an article which criticised a wealthy businessman who was alleged to have bought, at a discount, homes intended as affordable housing was an expression of opinion which readers would recognise as being distinct from factual allegations in the piece, a High Court judge has held.

Mr Justice Nicklin was dealing with the preliminary issue of the meaning of an article which appeared in the Daily Mail in August last year which businessman Steve Morgan claimed was defamatory.

The piece, headlined “Building tycoons using discounts to snap up family homes”, included phrases such as “morally unacceptable” and “far cat bought six houses and rents four back to staff”.

The Lawtel information service reported that Mr Morgan claimed that the natural and ordinary meaning of the words in the context in which they were published was that he had exploited his position to obtain massive discounts for himself and that the six homes should have been available to families requiring affordable housing; that he had engaged in reprehensible dealing which had been rubberstamped by his co-directors; and that he was lining his own pockets and was greedy and unethical.

Associated Newspapers, publisher of the Daily Mail, pleaded the defence of honest opinion, arguing that Mr Morgan had put the needs of his staff before the affordable housing needs of those not employed by him; had behaved unethically and taken advantage of his position; and that was worthy of public criticism.

Mr Justice Nicklin held at a hearing in London on Thursday last week that the article meant that Mr Morgan had, first, been able to take advantage of the opportunity to purchase six houses which had been intended to be sold as affordable housing but had not sold and a local authority changed its planning rules; second, bought the houses at a discount for personal gain; and third, taken advantage of his position,
was greedy and unethical and had behaved in an unacceptable way.

The meaning distilled the essential factual allegations and a reader would have appreciated that it had not been said that Mr Morgan had breached any rule or broken any law, Mr Justice Nicklin said. The defamatory sting of the article was in the third meaning, Lawtel reported the judge as having said.

But that meaning was an expression of opinion which readers would have recognised as distinct from the first two.

The criticism of Mr Morgan by third parties quoted in the article would have been recognised as opinion, said Mr Justice Nicklin – and readers would have been able to decide for themselves whether he was worthy of the expressed condemnation.

The judge also mentioned the question of costs and expenses, Lawtel reported. Associated Newspapers had provided a full defence to the claim before the issue of meaning had been determined, and the judge questioned whether that was a sensible use of costs.

As the court had had to assess meaning from the position of the ordinary and reasonable reader, he had not read the defence in full, Mr Justice Nicklin said.

Since the end of jury trials in defamation cases, meaning could be determined as soon as particulars were served – so it was a waste of costs to plead a full defence before that determination was made. Parties had to consider whether that expense was justified given the overriding objective.

This report originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.