On 1 December 2023, Jay J handed down judgment in Dyson v MGN Ltd [2023] EWHC 3092 (KB). Inventor and entrepreneur Sir James Dyson (the “Claimant”) sued MGN Limited, owner of the Daily Mirror newspaper, (the “Defendant”).
The claim concerned for a column suggesting that the Claimant was a bad role model for children as he had “screwed” the UK by campaigning for Brexit, only to then move Dyson’s headquarters to Singapore. The Judge found for the Defendant, holding that the Defendant had succeeded in its honest opinion defence and that the Claimant failed on the issue of “serious harm”.
Background
In 2016, the Claimant championed the merits of Brexit, explaining that this would be in the long-term economic interests of the country [2]. On 28 January 2022, the Defendant published an article online headlined: “Our government is making young people believe that cheats do prosper“.
On 29 January 2022, the Defendant published the same article in print under a different headline: “Message to young folks today is that cheats do prosper” [4]. The relevant paragraphs within those articles read as follows:
“Then there’s Robert Halfon, chair of the Commons Education Select Committee, claiming that if schoolkids want to succeed they need to follow the example of James Dyson. That’s the vacuum cleaner tycoon who championed Vote Leave due to the economic opportunities it would bring British industry before moving his global head office to Singapore.
In other words kids, talk the talk, then screw your country, and if anyone complains tell them to suck it up. But what must really puzzle them now is why they need to be truthful. We teach them that honesty is the best policy and cheats never prosper, yet the man elected to the top job in the country is acknowledged by even his closest colleagues to be a liar and a cheat” [5].
The Claimant brought proceedings claiming damages for libel in respect of these publications and associated further relief [7].
On 26 July 2022, Nicklin J determined the meaning of the article as follows (Dyson v MGN Ltd [2022] EWHC 2469 (QB) at [21]):
“(a) the Claimant had publicly supported the benefits of Brexit to British industry, yet following Brexit he had moved the global head office of his business to Singapore.
(b) by so doing, the Claimant was a hypocrite who had screwed the country and who set a poor moral example to young people“.
Nicklin J (at [22]) held that meaning (a) was an allegation of fact that was not defamatory at common law. Meaning (b) was an expression of opinion. Overall, the meaning of the article was defamatory because of the defamatory element of hypocrisy, harming the country and being a poor moral example that was supplied by meaning (b).
The Claimant did not appeal Nicklin J’s judgment and amended his pleadings to reflect the meaning accorded to the article by the court.
Issues
Two issues arose to be determined:
- whether the Defendant’s defence of honest opinion succeeded; and
- whether the Claimant had established that he had suffered “serious harm” for the purposes of section 1 of the Defamation Act 2013 (the “Act”).
Jay J pointed out that, strictly speaking, the second issue on serious harm should have been addressed first as the burden was on the Claimant to show serious harm and discharging this burden did not depend on whether the defence was made out. However, as both parties had begun their arguments with the statutory defence, Jay J proceeded on this basis [83].
The Decision
Issue 1: Honest opinion
Only s. 3(4)(a) of the Act was in issue, which provides:
“The third condition is that an honest person could have held the opinion on the basis of…any fact which existed at the time the statement complained of was published” [87].
Jay J addressed four sub-issues in turn.
Sub-issue 1
The first sub-issue was whether the Defendant was entitled to go beyond the single fact mentioned in the article, namely that the Claimant moved his global head office to Singapore [88]. The Defendant contended it could rely on the following facts:
“After Brexit the Claimant moved parts of his business, including the global head office of his business, out of the jurisdiction:
19.1 On 23 October 2018, Dyson announced to staff in an internal memo, reported in the Guardian, that it had chosen Singapore over the UK as the place to manufacture its proposed electric car. The news came after it had been reported that Dyson had previously identified and shortlisted a UK site for manufacturing. This announcement involved a move of advanced product development to Singapore.
19.2 In January 2019 Dyson announced its decision to relocate the company by establishing a global headquarters in Singapore. Its de facto “global headquarters” had hitherto been in the UK and so, for the avoidance of doubt, the Defendant contends that by Dyson establishing this new “global headquarters” the Claimant “moved the global head office of his business to Singapore” within the meaning found by Nicklin J. In announcing the move, and in response to being asked if Dyson could still be called one of Britain’s best success stories, Jim Rowan, Dyson’s CEO, said it should now be called a “global technology company” [57].
Jay J held that the Defendant was entitled to rely on all the facts pleaded in paragraph 19 of its Re-Re-Amended Defence [108]. Section 3(4)(a) meant that a defence of honest opinion could not succeed if the fact indicated in the article were false, but on the assumption that the fact was true, there was no basis for confining a defendant to that bare fact, excluding from account related and connected facts [106].
Sub-issue 2
The second sub-issue was whether the facts the Defendant relied on were substantially true. Jay J found that they were. All the Defendant was alleging that the Claimant’s decision to move his global head office to Singapore occurred after Brexit, not that this decision was made on account of Brexit [111].
Jay J found that Dyson decided to establish a global headquarters in Singapore on 21 January 2018. He dismissed the Claimant’s contention that, in reality, only two highly ranked executives moved to Singapore and that the two main operating companies remained in the UK. This did not alter the fact that part of the Dyson business moved to Singapore [113-118].
Sub-issue 3
The third sub-issue was whether the Defendant was required to place the facts in their full and proper context; and, if so, has failed to do so.
Jay J considered the law on this sub-issue to be correctly stated as being:
“…a defence of fair comment would fail if the defendant omitted from the statement of facts on which the comment purported to be based some important fact that would falsify or alter the complexion of the facts that are stated” [127].
The Claimant submitted that the Defendant should have included contextual facts such as Dyson already being a global company whose centre of operations was in Asia and that the practical significance of the relocation to Singapore was minor [123].
Jay J rejected this argument. Whilst such contextual facts would probably give the reader a fairer picture of the overall position, this was not the test: the omission of these contextual facts did not “falsify or contradict the basic factual allegation: that Dyson moved part of its business out of the jurisdiction” [131]. Their omission also did not alter the complexion of the allegation fundamentally enough to invoke this narrow exception.
Sub-issue 4
The fourth sub-issue was whether an honest commentator could have held the opinion expressed in the article. Jay J held that the correct test was “whether any man, however prejudiced or obstinate, could honestly hold the view expressed by the defendant”. That view could be irrational, stupid, illogical and not based on evidence and yet still remain an honest comment [134-137].
Jay J observed that a precise analysis of financial materials was not required to establish whether an honest commentator would think that the Claimant had “screwed the country”; a loose symbolic nexus would suffice [138-140]. It was therefore within the scope of honest comment for the Defendant to say that, given the Claimant’s status as a leading inventor and entrepreneur, his hypocritical and highly symbolic actions could undermine the confidence of others in the UK and harm the country thereby, and hypocrisy of this sort does not set one up as other than a poor moral example to young people [141-144]. Accordingly, the defence of honest opinion was made out.
Issue 2: Serious harm
Jay J reiterated that section 1 of the Act has:
“…intensified the common law and requires proof of harm which is actually or likely to be serious rather than proof of substantial harm and a tendency to cause it. “Serious harm” may be established by inference from such matters as the extent of the publication, the gravity of the allegation, and whether the statement was read by people who knew the Claimant or will come to know him in the future” [152].
Jay J held that the Claimant could not demonstrate that he had suffered financial loss as a result of these publications nor could he show that his philanthropic work, particularly directed to young people and schools, has been harmed in any way. These factors were not fatal, but they meant that the Claimant was constrained to advance an inferential case based on the gravamen of the words used and the inherent probabilities flowing from these being mass publications [153]. In this regard, the suggestion that the Claimant represented a poor moral example to young people was particularly wounding in the context of someone who has worked hard to promote the interests of young people in the UK [154].
However, the factors set out in Lachaux v Independent Print Media Ltd [2019] UKSC 27 militated against the inference of “serious harm”. First, the article was intended to be light-hearted. In any event, the article was really about the character of other people who the writer thought were liars and cheats. The allegation of hypocrisy as a common theme in this context was not at the gravest end of the scale.
Second, the author was writing in January 2022 about something that was very much old news. Most people had already formed a view about the merits or demerits of what Dyson did three years previously. The Defendant was not adding to that debate.
Finally, in a multiple publication case, a particular defendant is responsible only for the harm it has caused (following Dingle v Associated Newspapers Ltd [1964] AC 371). Another article in The Guardian which contained a series of detailed attacks targeting the Claimant was more damning, from a causation perspective, than the Defendant’s article. The Claimant therefore did not discharge the burden of proving serious harm [155-159].
As the Claimant had failed to show serious harm and as the Defendant’s defence of honest opinion succeeded, the Claimant’s claim was dismissed.
Comment
This case raises two interesting points. First, it clarifies that an honest opinion does not have to be more than honest; requiring the commentator to be fair-minded, intellectually honest or balanced. Further, there is no obligation for the selection of the facts justifying the comment to be any of these things. The position changes only if either (i) the commentator deliberately suppresses relevant facts, and thereby acts maliciously or (ii) where deliberately or not the omitted fact places a wholly different complexion on the stated fact.
If the position were otherwise, freedom of speech would be imperilled. As Jay J observed:
“[a] journalist would struggle to say anything potentially controversial without conducting assiduous research, and even that may not avail him. It would also place an unattractive burden on the court in having to make a judgment as to the facts which must be included to ensure a fair balance” [130].
Second, it confirms the high threshold that “serious harm” under section 1 of the Act represents for claimants. There are two alternative hurdles to overcome: establishing actual financial loss or reputational harm or advancing an inferential case based upon the gravamen of the words used. As to the latter, even when the gravamen of the words used is by no means trivial – such as allegations of hypocrisy and screwing the country in the present case – if the particular statement has already been part of a subject of public discussion for some time, its potential to cause serious harm will be diminished. Accordingly, claimants will struggle to show serious harm where the statements complained of are a mere rehashing of old criticisms about them.
Conor Fenton-Garvey is a pupil barrister at Quadrant Chambers.
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