Case Law: Price v MGN, “Disgraced” chief constable’s libel claim not an abuse – Mathilde Groppo

On 8 November 2018, Mr Justice Warby handed down judgment in the case of Price v MGN Ltd [2018] EWHC 3014 (QB). The proceedings relate to three articles (copies of which are annexed [pdf] to the judgment) which made serious imputations about the Claimant’s alleged participation in the illegal accessing of the mobile phone records of journalists who were investigating him when he was the Chief Constable of Cleveland Police (the “Interception Meanings”).

The articles also made separate defamatory allegations regarding the Claimant’s dismissal from the police force (the “Dismissal Allegations”), which the Claimant chose not to complain about in the proceedings.

The court ruled on the Defendant’s application for a determination of the meaning of the words complained of, and the early disposal of the proceedings on two alternative grounds: summary judgment or abuse of process.

The judgment deals with what might be considered to be novel and bold submissions, whereby the Defendant sought to defend the false Interception Meanings by relying on what it submitted to be true Dismissal Allegations. The judgment is also a lesson in good practices regarding applications for court orders, and a useful reminder of the limited scope of applications for summary judgment.

Judgment

1. Meaning

The Claimant’s case was based on the Interception Meanings (see [7], [14] and [16].  The Defendant’s case, which the judge rightly characterised as “somewhat unusual”, was that the articles contained serious defamatory imputations – the Dismissal Allegations – but that the Interception Meanings related to the Cleveland police force generally rather than to the Defendant. The Defendant alternatively argued that if the articles did bear an Interception Meaning, it was no graver than Chase Level Two.

After a brief restatement of the applicable legal principles judgment ([23] and [24]), Mr Justice Warby agreed with the Interception Meanings pleaded by the Claimant.

2. Summary judgment

The Defendant’s case again turned to the Dismissal Allegations. The application notice stated that the Claimant was not complaining about the Dismissal Allegations because (as the Defendant contended) they were true, and that “[i]n the light of the truth of the dismissal allegations […] publication of [the Interception Meanings] [could not] have caused serious harm to the claimant’s reputation”.

In other words, “the publication of [the Dismissal Allegations] – of which the claimant ha[d] not complained – was so destructive of the claimant’s reputation that the publication of the Interception Meanings [could not] have caused any serious reputational harm”, such that the Claimant’s claim must fail.

Mr Justice Warby was not satisfied that the truth of the Dismissal Allegations had been proven. Beyond this, he considered that the pleaded case contravened a number of separate and well-established legal principles regarding:

• The Claimant’s right to choose in respect of which allegations s/he would sue in circumstances where the publications complained of made a number of distinct allegations. The Defendant’s argument as set out in the application notice, which criticised the Claimant’s choice to complain only about the Interception Meanings and not about the Dismissal Allegations, contravened the rule in Polly Peck (Holdings) Ltd v Trelford[1980] QB 1000 (CA), which states that where a publication contains two or more distinct defamatory imputations, the claimant can complain of one and the defendant may not defend that imputation by proving the truth of one or more of the others.
• The availability of the defence of truth. In oral argument, the Defendant sought to argue that section 2(3) of the Defamation Act 2013 (which establishes a defence of contextual truth where the statement complained of conveys two or more distinct imputations, and one or more of the imputations is not shown to be substantially true) should be interpreted as asking whether “the imputations complained of have a tendency to cause serious harm, having regard to the defamatory tendency of the imputation(s) not complained of” (emphasis added). The judge identified the illogical implication which the Defendant’s proposed approach would have in practice:

“The claimant who sued on the entire publication would have to contend with s 2(3) of the 2013 Act, but he would benefit from the presumption of falsity, and would have the right to contest any defence of truth advanced by the defendant. A claimant who sued on only one or some of a number of imputations would, in effect, be conclusively presumed guilty of all other imputations not sued upon.”

Such interpretation would effectively “place the claimant who selects the grounds of complaint in a worse position than one who takes on the entire publication with all its imputations”. Mr Justice Warby rejected this unsustainable proposition.

• The proposed reliance on the Dismissal Allegations in mitigation of the harm flowing from the Interception Meanings. This ran counter to the principles in Scott v Sampson (1882) 8 QBD 491 (which states that it is not legitimate to plead or prove in mitigation of damages specific acts of misconduct, even if they concern the same “sector” of the claimant’s life, which in this case was far from certain) and Plato Films Ltd v Speidel [1961] AC 1090 (pursuant to which it is not legitimate to rely in mitigation of damages on the fact that the publication complained of contains other defamatory allegations about the claimant of which he has not complained).

The Defendant’s case regarding the Dismissal Allegations was based on damaging third party publications. The Defendant was therefore found to have invited an inference of bad reputation derived from other damaging publications, contrary to the rule in Associated Newspapers Ltd v Dingle [1964] AC 371. The exception in Goody v Odhams Press Ltd [1966] 1 QB 333, which allows a party to adduce evidence of a criminal conviction to prove a bad reputation, was not applicable in this case, where the previous findings of misconduct against the Claimant had been made in the context of disciplinary rather than judicial proceedings.

In light of the above, Mr Justice Warby dismissed the Defendant’s application for summary judgment, noting that the underlying argument ran “contrary to the established principles” enshrined in the law of defamation.

3. Abuse of process

As an alternative to its application for summary judgment, the Defendant applied for the proceedings to be struck out as an abuse of process. Two separate arguments were put forward in that regard. The first was a straightforward Jameel v Dow Jones & Co. Inc. [2005] EWCA Civ 75 argument: that the claim was so trivial that “the time and expense which the claim would absorb are wholly disproportionate to the minimal damages that might, at best, be recovered; so, it would be wrong to allow the claim to proceed”. The second was that the Claimant’s decision not to complain of the Dismissal Allegations was a tactical abuse of the law or the Court’s procedures.

• The Jameel argument was largely based on the Claimant’s allegedly poor reputation in view of the Dismissal Allegations. The Defendant suggested that given the Claimant’s poor reputation, even if his claim was successful at trial, he would only recover minimal or nominal damages. Mr Justice Warby was not convinced by this argument, and noted that “[i]t [was] not obvious that […] the claimant [would] only recover derisory or minimal compensation”. He also accepted the Claimant’s view that the crux of the Defendant’s argument was that the Claimant’s reputation was so damaged that the Defendant could make any and all allegations against him in total impunity, and rejected it as unfair.
• In oral submission, the Defendant sought to argue that the Claimant’s decision not to complain about the Dismissal Allegations was an attempt to circumvent the application of section 2(3) of the Defamation Act 2013. Mr Justice Warby saw no merit in this argument, considering instead that the Claimant’s approach was well within the bounds of the freedoms conferred by the law derived from the Polly Peck

The Defendant’s strike out application was also dismissed.

Comment

This judgment provides a useful summary of many of the current principles applicable to the pleading of a truth defence and mitigation of damages in the context of an application which, in light of Mr Justice Warby’s comments, appears to have been substantively and procedurally inadequate.

The judge noted the existence of discrepancies between the application notice and the supporting evidence, and between the arguments set out in the application notice, the skeleton argument and the Defendant’s oral arguments. He further criticised the fact that Counsel for the Defendant had raised arguments in his skeleton which had not been referred to in the application notice or in the supporting evidence.

In light of such criticism, this case should be seen as a useful reminder of the contents of CPR 23.6, according to which an application notice must state what order the applicant is seeking and why the applicant is seeking the order. The reasons for seeking the order must be brief, but adequate. These are not “mere formalities”: these rules are designed to serve the overriding objective, which is to deal with cases justly and at proportionate cost (CPR 1.1), specifically by “deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others” (CPR 1.4(2)c).

Mr Justice Warby indirectly referred to the rules in Part 23 on at least two occasions in his judgment. Having pointed out the deficiencies of the application notice, he nevertheless went on to dismiss the application on substantive rather than on procedural grounds.

Doing so allowed him to stress the limited scope of summary judgment applications. He rejected the Defendant’s line of argument by reference to well-established principles of the law of defamation, and commented that if the reasoning put forward by the Defendant was an implicit call for a change in the law of defamation (in relation to which he considered the argument to be weak and untenable), then “a summary judgment application [was] an inappropriate vehicle for suggesting anything of the kind”. This is very much in line with the principles of Part 24, from which it is clear that “an application for summary judgment is not appropriate to resolve a complex question of law and fact, the determination of which necessitates a trial of the issue having regard to all of the evidence” (Apvodedo NV v Collins [2008] EWHC 775 (Ch)).

The contest upon which the Defendant was seeking to embark by way of its application was much more complex than was suggested by the bare outline contained in its application notice and supporting evidence. This was not compatible with the rules in Part 24, which deprive a party of a full trial and are therefore only applied “in plain strong cases” (David v Hosany [2016] EWHC 3797 (QB)), which this was not.

Overall, the judgment contains a warning which should be borne in mind by practitioners. An interim application must be carefully drafted and thought through before the notice is issued. This is partly because the application notice must describe the orders sought and the reasons for seeking them, and the skeleton and oral arguments are not an opportunity to expand on the contents of the application notice. But it is also because costs can build up relatively quickly at the interim stage, particularly where the application involves substantial volumes of evidence (as was the case in the present proceedings). Issuing a procedurally or substantively weak application puts the applicant at risk of seeing its application dismissed, but also, and equally importantly, of being the subject of an adverse costs order.

This case is also interesting in the wider context of the Supreme Court’s hearing of the appeal in Lachaux (UKSC 2017/0175). When Mr Justice Warby gave judgment in Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB), he put forward an interpretation of section 1(1) of the Defamation Act 2013 which involved a substantial change to the existing law of defamation, affecting the extent to which the bar had been raised from the Thornton threshold of substantiality, the presumption of damage and the date on which the cause of action accrues. The Court of Appeal disagreed with this interpretation, which it said entailed a radical change in approach and practice which had not been contemplated by Parliament when enacting the 2013 Act. Mr Justice Warby has clearly taken the Court of Appeal’s comments on board in the present case, in which he rejected the Defendant’s suggestion that the serious harm threshold may have affected the existing rules on meaning and the pleading of a truth defence, thus adopting a conservative approach to the ramifications of section 1(1).

Mathilde Groppo is a member of the Paris Bar and of the Franco-British Lawyers Society and is practicing in England and Wales at Carter Ruck as a Registered European Lawyer