Barron MP & Anor v Vines (Rev 1) [2015] EWHC 1161 (QB)

[2015] EWHC 1161 (QB)Case No IHJ/15/0148
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/04/2015
Before
THE HONOURABLE MR JUSTICE WARBY
Between
(2) Rt. Hon. John HEALEY MPClaimantsCaven VINESDefendant
Gavin Millar QC (instructed by Steel & Shamash Solicitors) for ClaimantsThe Defendant in person for in personHearing Hearing date: 20 April 2015

REVISED Approved Judgment

[1]This is an application for judgment for damages to be assessed in this action for slander and libel, which arises from a television broadcast in January 2015.[2]The Claimants are two of the three Labour MPs for the Rotherham area. The first Claimant has been the MP for the Rother Valley constituency since 1983. The second Claimant has represented Wentworth and Deane since 1997. The third Labour MP for the Rotherham area is Sarah Champion. She was elected at a by-election in November 2012, her predecessor being Denis MacShane, also of Labour.[3]The Defendant is the Councillor for the Rawmarsh Ward and the Leader of the UK Independence Party (UKIP) group on Rotherham Metropolitan Borough Council (RMBC).[4]The RMBC commissioned an Independent Inquiry into Child Sexual Exploitation in Rotherham. The Inquiry, conducted by Professor Alexis Jay OBE, reported in August 2014. It concluded that some 1,400 children had been abused over a sixteen year period.[5]On Monday 5 January 2015 the Defendant and Sarah Champion MP were interviewed live on air by Kay Burley of Sky News. The following exchanges took place:
“[Kay Burley] It was particularly unimpressive that UKIP used the fourteen hundred kids that had been abused over sixteen years for party political favour and actually put a poster together saying “1,400 reasons not to vote Labour”
. Haven’t those kids suffered enough? Was that really appropriate? [Caven Vines] The kids have suffered enough and whether it was appropriate or not I mean they did appalling … [Kay Burley] Was it or not? [Caven Vines] Well, I thought it was appropriate, yes. People need reminding. Those fourteen hundred kids had been abused and been let go by the Labour Council and the Labour MPs. They knew what were going off, most … not Sarah, because she’s only the new girl on the block. But certainly the other two, not telling me they did not know. In fact MacShane in his book has openly said so. So yes people need reminding. We cannot forget that they let the kids down and they’re still letting them down. There’s still no arrests, what’s going on? Nothing has altered so we need to get in there and blow it open. This has got to be done. [Kay Burley] I don’t know if Denis MacShane said that in his book, I’ll take your word for it but I haven’t read it. … [Kay Burley] How are you going to change things for the better? [Caven Vines] We’ve got this CSE problem. We’ve got to help these girls. We’ve got to rid the streets of these perpetrators …” I have set out in bold the words identified by Mr Millar QC as those of which the Claimants particularly complain. The response from Kay Burley is not relied on by the Claimants. The remainder of the exchange that I have set out is relied on by them as context. [Kay Burley] Was it or not?

[Kay Burley] How are you going to change things for the better?

[6]The Claimants issued their claim form on 29 January 2015, two weeks after the broadcast, with Particulars of Claim attached. The Particulars are in conventional form, containing only 15 paragraphs. Paragraphs 1 to 8 plead the background facts that I have summarised at 2 to 4 above. Paragraphs 8, 9 and 10 plead the words complained of, which I have set out at 5 above. Paragraphs 8 to 10 of the Particulars of Claim allege that the words complained of were defamatory of the Claimants, and complain of their publication to Kay Burley and the film crew (alleged to be slander), and to a substantial number of viewers of Sky News via the live broadcast (alleged to be libel).[7]Paragraph 11 pleads the Claimants’ case on meaning. This is that “in their natural and ordinary and/or inferential meaning” the Defendant’s words “meant and were understood to mean”:
“that the Claimants knew of child sexual exploitation involving 1,400 children in Rotherham over sixteen years but despite knowing this they let the sexual abuse of the children go on and are now failing to ensure that the perpetrators are arrested and brought to justice.”
[8]Paragraph 12 pleads that the words complained of were calculated to disparage the Claimants in their offices as MPs. Words which satisfy that criterion are actionable as a slander without the need to satisfy the ordinary common law requirement that they caused special damage: Defamation Act 1952, s 2.[9]The Defendant, who has represented himself with some limited legal assistance, filed a Defence on 10 February 2015. On 23 March the Claimants issued the applications now before the Court. They contend that the Defence discloses no reasonable grounds for defending the claim and/or is an abuse of the court’s process. They apply to strike it out on one or both of those grounds, and for judgment to be entered for them accordingly. Alternatively, they seek a determination of the meaning of the words, and summary judgment pursuant to CPR 24 on the grounds that there is no real prospect of a successful defence to their claims and no other compelling reason for a trial. In either case, the Claimants seek an order for damages to be assessed.

Legal principles

[10]The Claimant in an action for defamation normally needs to prove only three things to establish liability:(1) that the Defendant has published, or caused or authorised the publication of, words which(2) refer to the Claimant and(3) are defamatory of the Claimant. In an action for slander the Claimant also needs to prove that the publication has caused special damage or that the case falls within one of the exceptions to that common law requirement, such as the one relied on here, pursuant to s 2 of the 1952 Act.[11]A person who participates in an interview for broadcast will normally be responsible for the resulting publication by broadcast, as they will have caused or authorised it.[12]Whether particular words refer to a Claimant depends on whether an ordinary reasonable person knowing the Claimant would understand the words to refer to them.[13]Whether words are defamatory depends first of all on what meaning they would convey to the ordinary reasonable reader, or listener. The approach of the law to the determination of meaning is well-established and was set out by Sir Anthony Clarke MR in Jeynes v News Magazines Limited[2008] EWCA Civ 130 [14]:
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) …. (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.”
Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.”[14]Words are defamatory of a claimant if they(1) substantially affect in an adverse manner the attitude of other people towards the claimant, or have a tendency to do so (Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985, [96]) and(2) their publication has caused or is likely to cause serious harm to the reputation of the claimant (Defamation Act 2013, s 1(1)). These tests are concerned with the tendency and effect of the words only. The belief that words are not defamatory if they are true is a common misconception.[15]A Defendant may dispute all or any of the matters which the Claimant needs to prove. The Defendant may do so either by positively denying them or by putting the Claimant to proof of them. If, however, these matters are admitted or established the Claimant is entitled to judgment unless the Defendant establishes a substantive defence. A Claimant does not have to prove that the words complained of were untrue.[16]The substantive defences that could in principle be available in the circumstances of this case are those of truth, honest opinion, and publication on a matter of public interest, that are provided for by ss 2, 3 and 4 of the Defamation Act 2013 respectively. These replaced the common law defences of justification, fair comment, and Reynolds privilege, all of which were abolished by the 2013 Act. The defence of truth is made out by proof that “the imputation conveyed by the statement complained of is substantially true.”[17]A Defendant who wishes to advance any of the defences I have mentioned must specifically plead it. The rules as to what needs to be pleaded by way of defence are set out in the Part 53 Practice Direction. This requires a defence of truth to specify the defamatory meaning the Defendant intends to justify and to give details of the matters relied on in support of that allegation: PD53 2.5. Similar requirements apply to the defence of honest opinion (PD53 2.6). The same in principle is true of the defence of publication on a matter of public interest, though the PD has yet to be updated in this respect; it currently refers to “a privileged occasion” (PD53 2.7) reflecting the Reynolds privilege defence.[18]A Defendant who is unable to establish a substantive defence may be able to mitigate damages in various ways. One of these is by means of a retraction and apology. Another is by reliance on facts proved in an unsuccessful attempt to prove a substantive defence. This second rule has often tempted defendants to put on record over-optimistic pleas of justification (now truth) in the hope that the plea would at least diminish damages. As the Court of Appeal pointed out in Burstein v Times Newspapers Limited [2001] 1 WLR 579, however, this is not a proper use of the court’s process. The solution devised by the Court in that case was to permit proof in mitigation of damages of facts directly relevant to the contextual background to the publication, even where no substantive defence could be advanced.[19]The court may strike out a statement of case, or part of one, if it appears to the court that it discloses no reasonable grounds for defending the claim, or is otherwise an abuse of process: CPR 3.4 (2) (a), (b). Those are the grounds relied on by the claimants. The Court may also strike out a statement of case if it fails to comply with a Practice Direction: CPR 3.4(2)(c).[20]The court may grant summary judgement on a claim if it considers that the Defendant has no real prospect of successfully defending the claim, and there is no other compelling reason why the case should be disposed of at a trial: CPR 24.2. The jurisdiction is available in respect of all kinds of claim. In former times the fact that s 69 of the Senior Courts Act 1981 enacted a presumption of jury trial for defamation cases affected the approach to summary judgment applications in such cases, but now that the presumption has been reversed by s 11 of the 2013 Act the approach is as it would be in any other kind of case.[21]That approach is well-established and familiar. A “real prospect” is one that is not fanciful, and better than merely arguable. The court should not conduct a mini trial. It should not hesitate to decide a short point of law if all the relevant materials are before it. But it should be wary of granting summary judgment in areas of developing jurisprudence.

The Defence

[22]The Defence consists of six paragraphs. In paragraph 1 the Defendant admits paragraphs 1 to 10 and 12 of the Particulars of Claim. The Defence therefore admits the publication by the Defendant of statements defamatory of the Claimants and disparaging of them in their positions as MPs.[23]Paragraph 2 of the Defence objects that some of the words from the interview which are set out in the Particulars of Claim should be struck out as immaterial and irrelevant to the issues. This objection does not apply, however, to any of the words complained of that I have set out in bold above. Paragraph 2 admits that the Defendant spoke the words attributed to him in the Particulars of Claim.[24]Paragraphs 1 and 3 of the Defence appear to take issue with the Claimants’ pleaded meaning and to put forward lines of defence. In paragraph 1 the Defendant says “…it is denied that certain words appearing in paragraph 11 are defamatory (see paragraph 3)”. The reference is of course to paragraph 11 of the Particulars of Claim. Paragraph 3 pleads as follows:
“The Defendant admits that in their natural and ordinary and/or inferential meaning the words complained of were meant to be understood to mean that at all material times the Claimants knew of child sexual exploitation involving approximately 1,400 children in Rotherham (whether over the age of sixteen years or not). The Defendant denies that he asserted either in fact or by innuendo that the Claimants or either of them let the sexual abuse of the children go on in the sense that they were in a position where they might have directly intervened in individual cases to have prevented its occurrence and puts the Claimants to proof of such an assertion. The Defendant admits that he did assert that the Claimants and both of them are now failing in the sense that they are still omitting to ensure that the perpetrators are arrested and brought to justice and pleads justification for this assertion of fact and asserts that no arrests or prosecutions have to date taken place and puts the Claimants to proof of what pressure they or either of them have/has exerted and which arrest or arrests and which prosecution or prosecutions have resulted to date; and the Defendant further pleads that such an assertion is not defamatory unless it can be shown that the Claimants or either of them were or are in a position to exert such pressure upon the police or the Courts by virtue of their respective offices or otherwise.”
[25]Paragraph 4 of the Defence puts the Claimants to proof of their allegations of injury to reputation, distress, humiliation and upset.[26]Paragraph 5 of the Defence denies all the matters pleaded by the Claimants in support of their claim for aggravated damages, with one exception. Paragraph 14(d) of the Particulars of Claim complains that the Defendant has refused to apologise publicly and has failed publicly to withdraw the allegations complained of. Paragraph 5 of the Defence says this:
“with regard to paragraph 14 d of the Particulars of Claim the Defendant now apologises for the words in the original interview with Kay Burley: … ‘and they’re still letting them down’ which was a statement of opinion pertaining to the short period during which the Claimants could not reasonably have been expected to have had any material influence owing to the course and momentum of the enquiry into previous Council and other misfeasance which rendered them unable to rectify matters at this stage. The Defendant now formally retracts those words, but asserts that in the overall context those words were not capable of causing damage to the Claimants or either of them.”
[27]Paragraph 6 denies the Claimants’ allegation that unless restrained by the Court the Defendant will further publish or cause the publication of the words complained of or similar words defamatory of the Claimants.

Evidence on the application

[28]In a short witness statement in support of the claimants’ application Mr Shamash of the claimants’ solicitors refers to the admissions in paragraph 1 of the Defence and describes the remainder of it as “vague and incoherent”. He speculates that the Defendant’s case may be that the meaning complained of is present in the words complained of, but is only partly defamatory. He points out however that the Defence appears to assert a meaning that the words “were meant to” mean, that is to say what the Defendant’s intention was. Mr Shamash says that none of the defences in ss 2-4 of the Defamation Act 2013 are advanced, and maintains that on the evidence the Defendant has no real prospect of defending the claim and that there is no other reason for the case to be disposed of at a trial.[29]In response to the application the Defendant has submitted a short witness statement with three exhibits. One is a transcript of the whole programme, accompanied by a recording, the second is his Defence, and the third is “my written and submitted defence evidence”. He asserts that his evidence shows that “the Claimants have no reason or evidence to bring this case against me and it is them who have no reasonable grounds [on] which to bring a case against me to the courts.” He claims that “judgment for damages to be assessed should therefore be entered in favour of the Defendant.” He has also submitted an “Evidence script – particulars of claim – my answers in simple terms”. The Defendant has also submitted a skeleton argument.[30]In his documentary submissions the Defendant made complaints about the way the case has been handled by the Claimant’s solicitors. I was not persuaded that they have, as he complained, taken advantage of him. But I spent time at the hearing ensuring that the Defendant had a full opportunity to present his case, and he confirmed that he was satisfied that he had done so.

The Defendant’s case

[31]From the written material and his oral presentation I have determined what I now understand to be the essential features of the Defendant’s intended defence case. These are as follows. First, he stands by the admissions made in paragraph 1 of his Defence and his denials of damage. Secondly, however, he denies the meaning complained of. What he said in the interview was intended by him to refer to the Claimants’ conduct in the year 2012 and only that year, he says. As he put it in a letter to the claimants’ solicitors on 16 January 2015 the substance of which was repeated in a statement issued later and reported in the Rotherham Advertiser on 23 January 2015 “to clear any misunderstanding or misinterpretation of my comments”:
“I would like to take this opportunity to clear up any misunderstanding your clients may have with reference to my comments made on Sky TV on the 5th January 2015. The comments I made were in reference to the publication in Mr MacShane’s book .. in which Mr McShane makes reference to a meeting of Rotherham Councillors and MPs during which they discussed the articles published by Mr Andrew Norfolk in the Times Newspaper in 2012 relating to CSE in Rotherham. In the Times articles both your Clients are named. My comments on Sky TV were taken from Mr MacShane’s book, to which I clearly referred when making them. I also referred to Sarah Champion as the ‘new kid on the block’ as she was elected in the same year, 2012 – that to which I was referring. At no time did I insinuate any other period in time. All my references were made to Mr MacShane’s publication of the article published in 2012 and my reference to Sarah Champion in the same year 2012.”
[32]The articles by Andrew Norfolk in The Times in 2012 are those which first brought child sexual exploitation in Rotherham to national attention. The reference to Mr MacShane’s book is to ‘Prison Diaries’ published in 2012. The Defendant made clear to me that his case is not only that he intended his words to refer to 2012 and no prior point in time, but also that listeners will have understood this. The Defendant points out that it was not he but Kay Burley who referred to “sixteen years”. He submits that nobody could have thought that the Claimants knew about the abuse for sixteen years, because it was only in 2012 that it emerged publicly, through Mr Norfolk’s article.[33]Secondly, the Defendant maintains that what he said was true. The way he put his case to me in his oral submissions is that “in 2012 the claimants knew most of what was going off about child sexual exploitation in Rotherham and did nothing about it”.[34]In support of his case of truth so far as the first Claimant is concerned, the Defendant relies on the following: i) Mr MacShane’s book, which he says clearly states that the first Claimant attended a meeting in Rotherham Town Hall in 2012 at which the Andrew Norfolk article was discussed, and that the first Claimant “aggressively denounced” the article. A page of the book, exhibited by the Defendant, says that at a Town Hall meeting the first Claimant “objected to Andrew Norfolk’s reporting in The Times, which painted Rotherham in a black light.” ii) A statement made by the first Claimant in the House of Commons on 2 September 2014 and reported in Hansard at column 172, in which the first Claimant referred to meeting one of the victims and her parents over a decade earlier, and to deep concerns he had about inactivity on the part of the South Yorkshire police. iii) The Defendant maintains that the first Claimant has also said that he kept in touch with the family and met them in Westminster on 14 June 2011 when they were campaigning for victims of sexual exploitation. In these circumstances the Defendant says the first Claimant cannot claim not to have known. iv) The Defendant also refers to a speech by the Labour Party Leader Ed Miliband at Sheffield Hallam University and reported in the Sheffield Star in which Mr Miliband said “it was terrible what happened in Rotherham. Lots and lots of young people were terribly let down, including by Labour representatives”. The first Claimant is one such representative, says the Defendant. v) In his submissions to me the Defendant added that the first Claimant could and should have done more, by taking the matter up with the Chief Constable or the Home Secretary.[35]As for the second Claimant, the Defendant relies in support of his case of truth on the following: i) A constituent wrote to the second Claimant in September 2012 saying that he and others were worried about the scale of the abuse and asking what he was going to do about, and whether he would call for an inquiry. ii) The second Claimant responded by email on 5 October 2012 “admitting”, as the Defendant puts it, that he had had a meeting on the subject with the Council leader and Cabinet (who certainly knew about the abuse, says the Defendant). The second Claimant’s response to question about a call for an inquiry was to say “I am not sure an inquiry would help the girls and their families especially if it focuses solely on Rotherham and on Asian men grooming white girls. Unfortunately there are many examples of this kind of systematic abuse and exploitation.” iii) The Defendant criticises the second Claimant for this response, which became public in September 2014 via The Times. He says it shows that the second Claimant knew there was widespread abuse and yet resisted an inquiry. iv) The Defendant points to a statement made by the second Claimant in the House of Commons on 2 September 2014 reported in Hansard at column 173, when the second Claimant said that “those who knew about that terrible abuse and did not do their job by protecting those children or prosecuting the offenders must now be called to account.” The Defendant says that this applies to the second Claimant himself v) The Defendant relies in relation to the second Claimant on Mr Miliband’s speech at Sheffield Hallam University also.

The strike-out application

[36]The Defence shows some signs that someone with pleading experience has had a hand in its drafting, and the Defendant told me that he had received some help with it. But the document – and in particular paragraphs 3 and 5 - also indicates that those responsible for its creation did not have a clear understanding of the basic framework of defamation law, as outlined in this judgment above. So far as the Defendant is concerned, that impression has been confirmed by his submissions at the hearing.[37]The Defence admits clearly enough that the Defendant published words which were defamatory of the claimants and calculated to disparage them as MPs. However, when it comes to paragraph 3 the position becomes both confused and confusing. Paragraph 3 appears to approach the issue of meaning on the basis, which is plainly wrong in law, that it depends at least in part on what the Defendant intended his words to mean. The Defendant’s oral submissions displayed the same misunderstanding.[38]Paragraph 3 also purports to plead justification (the language of the common law) of a factual assertion that the Claimants and both of them are failing to ensure that the perpetrators are arrested and brought to justice, whilst at the same time asserting that this is not a defamatory meaning (in which case it would not be necessary to justify it) and purporting to place the onus of proof on the Claimants in this respect (when the onus lies on the Defendant). Paragraph 5 then appears to acknowledge that the very words that assert that the Claimants are “still letting them down” are unwarranted, to apologise for and to retract those words. Paragraph 5 also maintains that it was an expression of opinion, not of fact, and harmless. This is a muddle.[39]Mr Millar submits that the Defence asserts an alternative meaning but on a mistaken legal basis, and in any event pleads no substantive defence to any alternative defamatory meaning. He submits further that the Defence is so vague and incoherent as to justify striking it out on that basis in any event.[40]In my judgment the Defence is incoherent, fails to disclose any reasonable basis for defending this claim, and fails to comply with Part 53 Practice Direction. The admissions in paragraph 1 of the Defence are enough to entitle the Claimants to judgment, in the absence of any defence. No proper ground of defence emerges clearly or at all from the remainder of the pleading. To the extent that it seeks to dispute the meaning complained of, the Defence does so on a legally unsound basis and fails to make clear the extent to which and the basis on which it does so. In any event, taken overall, the Defence does not appear to me to contain any assertion that any meaning defamatory of either Claimant was true to any extent. It certainly fails to identify any defamatory meaning that is to be defended as true, and to specify the facts relied on in support. My reading of the mention of “justification” in paragraph 3, in context, is that it asserts the truth of the bare fact that the Claimants have not ensured that anyone is brought to justice, without attaching to that fact any defamatory imputation. Only in that way can it be reconciled with paragraph 5.[41]These are all defects which are, in principle, curable. Applications to strike out for the reasons I have given are often encountered in defamation actions, especially where a party is unrepresented. They are usually met by a proposal to amend, sometimes prompted by the Court. In this case it has become clear that the Defence does not set out the case which the Defendant would now wish to put forward in answer to the claim. Indeed, the case that he now puts forward is not only different from but in conflict with his pleaded case, in at least three significant respects. i) First, he no longer says, as he appears to have done in paragraph 3 of the Defence, that he intended his words to mean that “at all material times the Claimants knew of child sexual exploitation involving approximately 1,400 children in Rotherham”. He now says he meant only to allege knowledge from 2012. ii) Secondly, he now asserts the truth of a different proposition from one of current failure to act that he said in his Defence (paragraph 3) that he would justify and (in paragraph 5) that he retracted and apologised for. He now asserts knowledge and failure to act from 2012 and, in the case of the first Claimant, earlier. iii) Thirdly, whereas he previously called on the Claimants to prove that they were in a position to exert pressure, the Defendant now says positively that the Claimants are to be criticised for failing to act.[42]In those circumstances, if I considered that the Defendant had now put forward a defence case that had a realistic prospect of success at a trial, or which the Defendant should for some other compelling reason be allowed to put forward at a trial, I would allow him an opportunity to formulate an Amended Defence, rather than strike out and enter judgment at this stage. I would take the same course if I considered that a defence case was available to him which met those conditions, even if he had not himself raised it.[43]There would be no point in such an exercise, however, indeed it would be wasteful of valuable resources to adjourn for that purpose, if I was satisfied that the Defendant had no prospect of successfully defending the claims, and that there was no other compelling reason for a trial. Mr Millar’s submission on behalf of the Claimants is that this is the position. I therefore turn to consider whether he has satisfied me that this is so.

The summary judgment application

[44]Mr Millar invites me to rule on meaning and to proceed to grant his clients summary judgment. Mr Millar’s submission is simple. As usual in actions for defamation the key lies in the meaning of the words. Applying the principles set out in Jeynes, the words complained of plainly bear the meaning complained of by the claimants, and the Defendant has put forward nothing that could conceivably amount to a defence to the claim.[45]As the Defendant is unrepresented I need to be careful that he is not unduly disadvantaged as a result. I need to make sure that I consider not only the points that he has raised, both in writing and after my questioning of him during the hearing, but also any other matters that might reasonably have been raised on his behalf had he been represented. As the case involves statements on political matters I need to proceed with caution, bearing in mind that the principle that the court in determining meaning should avoid over-elaborate analysis has particular resonance in such a context (Waterson v Lloyd [2013] EMLR 17 at [66] (Laws LJ)), and the importance of not allowing the law of defamation to stifle political debate. It is also important to have in mind that there may sometimes be reasons which justify a case going to a full trial, even if it appears that one party or the other cannot possibly succeed. One such reason is that the case involves a developing area of the law.[46]Bearing all those matters in mind I am satisfied, first, that it is just and appropriate for me to resolve the question of meaning. The relevant principles are clear and the issue is straightforward. The Defendant has had an adequate opportunity to put forward his case on the issue. I also consider the answer to be clear.[47]There is no dispute that the Defendant’s references to the two Labour MPs were references to these claimants. In my judgment the ordinary reasonable viewer of Sky News who saw and heard the Defendant’s interview will have understood him to be saying(1) that the claimants knew for years most of what was going on by way of large-scale sexual abuse of children in Rotherham, and let it go on despite such knowledge;(2) that they thereby let down the children; and(3) that they were still failing to ensure that the perpetrators were brought to justice. Applying the principles I have identified, there can in my opinion be no doubt that these meanings are defamatory.[48]It will be apparent that I do not fully accept the meaning pleaded on behalf of the claimants. The differences are, however, matters of emphasis and degree rather than fundamental matters. I agree with the Defendant to this extent, that the reasonable viewer will not have taken him to be saying the MPs knew about the abuse throughout the whole of the sixteen years that it was said to have gone on. But he did follow a question referring to that period, and to the 1,400 children abused over that period, by referring to “those 1,400 kids” as having been abused and “been let go” by “the Labour Council and Labour MPs”. Referring to both groups, he then said that “they let the kids down”. These statements plainly suggest that the MPs knew of abuse on a vast scale, which in turn implies a considerable period of time. The suggestion is clearly one of inactivity over a lengthy period despite that knowledge.[49]Whatever he may or may not have intended, the Defendant’s suggestion that ordinary viewers will have understood him to be talking about the claimants’ conduct from 2012 only is in my view simply untenable. The Times articles were not referred to. Mr MacShane’s book was mentioned but not its date nor, in any detail, its contents. The contents of Mr MacShane’s book are not matters of general knowledge. I note that they were unknown to Kay Burley; she said so immediately after the Defendant’s reference to the book. I add that I am not persuaded from what I have seen that the book limits any room for criticism to that period. Even if it did, it would not follow that an informed viewer would take the Defendant to be limiting his criticisms in the same way.[50]The fact that Ms Champion had been elected only two years earlier was made known earlier in the programme. But I do not follow the Defendant’s argument that viewers, knowing this, would have taken him to be limiting his criticisms of the claimants to the period in and after 2012. To my mind, the fact that the Defendant expressly exempted Ms Champion from criticism because she was so recently elected clearly implies that he was criticising the claimants for failures in the period before 2012, when she came on the scene, rather than at or after that time.[51]There was therefore nothing in what the Defendant said that stated or implied, nor was there any other matter that was known to his audience, that would serve to limit in the way he suggests the period of time to which his allegations that the Labour MPs knew “most” of what was “going off” would be taken to relate. On the contrary.[52]I turn to consider the matters which the Defendant has put forward by way of defence. Again, I am satisfied that I can do this fairly at this stage. In order to assess whether the matters put forward could amount to an answer to the claims it is necessary first to consider the extent to which they relate to the claimants’ complaints. Next, it is appropriate to consider their nature: whether they are plainly factual or whether they are or might be found at a trial to be expressions of opinion. In so far as they are plainly factual I need to consider whether there is a real prospect of a defence of truth. In so far as they are or may be expressions of opinion I must assess whether, although he has not put one forward, the Defendant may have available a defence of honest opinion which might succeed. I shall deal separately with the public interest defence under s 4 of the 2013 Act.[53]As I have indicated, I regard the first meaning identified at paragraph 47 above as substantially similar to the first part of the meaning that is complained of by the Claimants. In my judgment this was plainly a factual allegation. The contrary is not arguable in my view. The second of my meanings is not reflected in the meanings complained of; it is in my view a comment on the facts as alleged by the Defendant, but one of which the Claimants do not complain. My third meaning is substantially identical to the final part of the Claimants’ meaning. This was in my judgment clearly a comment, but one that plainly implied the factual assertion that the claimants were failing to take steps that were open to them to ensure that the perpetrators were brought to justice.[54]The Defence contains nothing that could support a defence of truth to the first, factual defamatory meaning I have identified. The matters which the Defendant has put forward since the service of his Defence as supporting a defence of truth could not in my judgment begin to establish the substantial truth of that meaning. Mr Millar was justified in characterising the Defendant’s criticisms of both Claimants as quite different in kind from the imputations conveyed by his words in the interview.[55]The Defendant’s criticism of the second Claimant is not that for years he knew of but failed to act on knowledge of abuse on a vast scale, but rather that he should have been more enthusiastic about a public inquiry in October 2012, when asked about it by a constituent. The Defendant’s criticism of the first Claimant is not that he knew of and failed to act on knowledge of abuse on a large scale, but that he should have done more from 2003 about the case that he did know about, as that might have stopped the abuse. Such matters may be relevant and admissible in mitigation of damages under Burstein principles, but they could not support a defence that the meaning I have identified is substantially true.[56]The Defendant has no need of an answer to the second meaning I have found, as it is one of which the Claimants do not complain. It does not seem to me, however, that it could be defended. The Defendant does not assert the existence of a sufficient factual foundation for that comment. As to my third meaning, that the Claimants were still failing to act, this is not materially different from the last part of the Claimants’ meaning. It is essentially the suggestion for which the Defendant has apologised, and which he retracted, in paragraph 5 of his Defence. The Defendant has not sought to defend anything of that nature at the hearing of the applications. I cannot detect in any of the material he has put before me any basis for criticising either Claimant for any failure to take action at the time of the interview in January 2015. Indeed, the Hansard extracts of September 2014 on which the Defendant relies show the Claimants speaking out publicly in favour of action.[57]In summary, therefore, the words complained of bore a defamatory factual meaning about both claimants which the Defendant says he did not intend to convey, which he does not seek to defend as true, and which in my judgment he plainly cannot defend as true on the basis of any facts that he has put forward. The words also conveyed a defamatory meaning which is or may be an expression of opinion about the claimants’ alleged conduct, but is one of which the claimants do not complain. Thirdly, the words conveyed a defamatory opinion about the claimants’ current conduct which the Defendant does not now seek to defend, but has withdrawn and apologised for. Thus far the case would appear to be one where the Defendant has no answer on liability even if he may have points to make in mitigation of damages.[58]I now turn to consider however whether the Defendant might have available to him a defence of publication on matter of public interest under s 4 of the Defamation Act 2013. The Defendant has not raised the defence, but as already noted he has had little legal assistance and it is clear that he has not so far been assisted by anyone with any detailed or up to date knowledge of the law of defamation. It is therefore appropriate that I should give some consideration to this issue.[59]It is, in general terms, a matter of high importance to afford political speech protection from the chilling effects which the law of defamation can have. As I noted in Barron v Collins [2015] EWHC 1125 (QB) at [54], this defence is potentially available to meet the need to allow trenchant expression on political matters. The defence can apply in cases where, as here, the defamatory statement contains allegations of fact which cannot be defended as true. In principle it seems it may be capable of protecting expressions of opinion even though the defence of honest opinion is not available – though commentators have observed that it is hard to envisage circumstances where this would be so.[60]Section 4(1) provides:
“It is a defence to an action for defamation for the Defendant to show that (a) the statement complained of was or formed part of a statement on a matter of public interest; and (b) the Defendant reasonably believed that publishing the statement complained of was in the public interest.”
[61]Section 4(2) requires the court to “have regard to all the circumstances” in determining whether the Defendant has shown these matters.[62]It is not necessary to receive more evidence about the circumstances than I have been provided with on this application to conclude that the first of the statutory requirements is plainly satisfied in this case. The question of how much politicians knew about the long-running child sexual abuse in Rotherham and whether they failed the victims to any extent are unquestionably matters of high public interest. The issue becomes considerably more complex when it comes to the second requirement of s 4(1).[63]Because the Defendant has not been advised to raise, and has not raised, this matter the evidence and information that I have about his state of mind and the other relevant circumstances is somewhat limited. He has said quite clearly and emphatically that he did not intend to suggest any knowledge or failures by the claimants before 2012. It might be said that he therefore cannot have believed, let alone reasonably believed, that it was in the public interest to make “the statement complained of”, which bore a quite different meaning. It may well be, however, that in this context the term “statement complained of” means the words used rather than the imputation which they conveyed. “Imputation” is the word used in the 2013 Act to refer to what is otherwise referred to as “meaning”. On this view, a reasonable belief that it is the public interest to make statement A could be the basis for a defence, even if the words used unintentionally conveyed meaning B. That would seem more consistent with the previous law.[64]I have expressed these views in somewhat tentative and provisional form for two reasons. First, because the defence under s 4 is a new statutory defence, which has yet to be the subject of any decision. Although the Explanatory Notes to the Act suggest that it was based on and intended to reflect the principles of the pre-existing Reynolds defence, there is inevitably some room for argument about its exact scope and application to particular facts. Secondly. on these applications there has been no such argument, for reasons that will be obvious from what I have already said. The evidence also may have been more limited than it would have been had the prospect of such a defence been considered by or on behalf of the Defendant. I am also conscious of the speed with which this matter has proceeded.[65]In the end, although I do not consider that any tenable defence has been put forward so far, I am left with a distinct feeling of unease at the prospect of granting summary judgment in a matter of this kind, against an unrepresented litigant, without giving him a further opportunity to take professional advice on the specific question of whether this as yet untested statutory defence may arguably be available to him. In all the circumstances I have decided to adjourn the claimants’ summary judgment application for a suitable period of time, to enable the Defendant to take advice and, if so advised, to prepare and submit a draft Amended Defence and further evidence, limited to the one question that I have identified as potentially deserving of further consideration.[66]This seems to me to be step which is necessary for at least two of the purposes identified in CPR 1.1(2) as factors in dealing with cases justly and at proportionate cost. The first is “(a) ensuring that the parties are on an equal footing”. The second is “(c) dealing with the case in ways which are proportionate … (ii) to the importance of the case [and] (iii) to the complexity of the issues”. The case is one of importance to the parties and the wider public because of the national importance of the Rotherham child abuse scandal and the role of politicians in relation to the abuse. The complex issues in the case are, potentially, the applicability of the s 4 defence. That is also a matter of general importance. I am not satisfied that the case will have been dealt with in accordance with those requirements of the CPR in the absence of the adjournment.[67]I acknowledge that this decision may cause the parties to incur additional cost which may ultimately prove fruitless. I also appreciate that the Defendant has, as he told me, no financial resources that would enable him to pay for representation. Conditional Fee Agreements remain permissible in litigation of this nature, however, and it is not impossible that advice and representation on a pro bono basis could be made available. If further costs are incurred that ought to be paid by the Defendant but are irrecoverable by the Claimants because of the Defendant’s financial position, that in my judgment is a proportionate price to pay.

Conclusion

[68]I have concluded that the words complained of bore a defamatory factual meaning about each of the claimants which is substantially similar to the meaning complained of by them, and which the Defendant cannot defend as true. I have concluded that the words contained a defamatory expression of opinion about the Claimants which is substantially identical to the meaning complained of by them, which the Defendant accepts is untenable and has withdrawn. I would have granted summary judgment in favour of the Claimants for damages to be assessed, but for the fact that the Defendant is unrepresented and has not benefited from informed legal advice. In my judgment he should have a further, but final, opportunity to take professional advice on whether, although he has not raised it himself, he may have an arguable defence of publication in the public interest under s 4 of the Defamation Act 2013. I am adjourning the summary judgment application to allow that to be done.

Postscript

[69]After the handing down of this judgment in draft, and having taken time to consider his position, the Defendant told me that he did not wish to take advantage of the opportunity I had decided he should have. Nor did he wish to appeal. He accepted my judgment. After questioning the Defendant I was satisfied that this was a fully informed decision made after consideration of his options, and in the knowledge of the implications of the position he was adopting.[70]Mr Millar then made an application for judgment for damages to be assessed, which the Defendant did not resist. Mr Millar did not seek an injunction, but invited me to adjourn that matter to the remedies stage of the action. I entered judgment for damages to be assessed on a date to be fixed, with any claim for a permanent injunction to be disposed of at the same hearing. I summarily assessed the claimants’ base costs of the action in the sum of £15,000 inclusive of VAT. I extended time to pay to 28 days, with permission to the defendant to make an application within that period, supported by evidence, for a further extension and for a payment regime, if so advised.

Cited in 6 later judgments