Simpson v MGN Ltd [2015] EWHC 77 (QB)

Case No HQ13D05513[2015] EWHC 77 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/01/2015
Before
MR JUSTICE WARBY
Between
DANIEL PETER SIMPSONClaimantMGN LIMITEDDefendant/
Manuel Barca QC and Aidan Eardley (instructed by Lewis Silkin LLP) for ClaimantAdam Wolanski (instructed by Simons Muirhead and Burton) for Defendant/Intended Part 20 Claimant for The Intended Part 20 Defendant did not appear and was not represented.Hearing Hearing date: 19 January 2015
JudgmentMR JUSTICE WARBY :
[1]The claimant is a Premier League footballer. He sues the defendant for libel in articles published in the Daily Mirror for 16 November 2012, and on the defendant's website www.mirror.co.uk from that date onwards.[2]The nature of the hard copy article is indicated by the text of the taster that appears under the masthead on the front page, and the captions to the photographs either side of the taster. The text is: "Exclusive: Prem star’s pregnant girlfriend .. ‘Tulisa is just a home-wrecker.. I'm devastated.’” One of the captions reads: “FAMILY Danny, partner Stephanie Ward and baby”. The photograph shows the parents in a loving pose with their daughter in Ms Ward’s arms. The other caption reads: “TOGETHER Tulisa at shops with Toon star Danny Simpson”.[3]The Defence denies that the words complained of were defamatory of the claimant, and denies that they bore the meanings complained of, but pleads a defence of justification. The meaning which the defendant contends is true (the Lucas-Box meaning) is different from the meanings complained of by the claimant.[4]The following applications are before the court. i) The claimant applies for an order that the court try as preliminary issues the meaning of the words complained of, and whether they are defamatory of the claimant, and for the immediate trial of those issues. The defendant has consented to that application, but disputes the claimant’s meaning. ii) If the court upon the trial of those issues upholds the defamatory meaning complained of by the claimant, the claimant seeks an order striking out of the defence of justification as disclosing no reasonable grounds for defending the claim. iii) The defendant applies for permission to amend its Defence. The draft amendments would assert the truth of the meaning complained of by the claimant, modify the defendant’s Lucas-Box meaning, and add to the particulars of justification. The claimant’s case is that even with the proposed amendments the Defence would be liable to be struck out, so the amendment application should be refused. iv) The defendant applies for permission to commence an additional claim against Stephanie Ward for a contribution pursuant to s 1(1) of the Civil Liability (Contribution) Act 1978 and CPR 20.7. This is on the basis that in publishing the article complained of the defendant relied on what it was told by Ms Ward so that, if the defendant is liable, Ms Ward is jointly liable with it. This application is not opposed, but nor is it consented to by Ms Ward. Meaning The words complained of

Meaning

[5]I shall focus on the hard copy publication, as neither side suggested that there was any relevant distinction between this and the online version. The words complained of include those that appeared on the front page and are set out in paragraph 2 above. They directed the reader to the following article, which appeared as a splash across two pages, taking up about a third of page 6 and the whole of page 7 (paragraph numbers are added for ease of reference): “SHE'S TU CRUEL Newcastle Utd star's pregnant girlfriend calls singer a 'homewrecker' Steph says it is over and she doesn't want anything to do with him [1] The pregnant girlfriend of Newcastle United star Danny Simpson yesterday branded Tulisa a "homewrecker". [2] We exclusively revealed yesterday how the footballer, 25 and the X Factor judge were spotted having drinks, dinner and visiting a hotel. [3] But devastated Stephanie Ward, 24, said he was supposed to be Christmas shopping with her and their 16-month-old daughter Skye-Lorena at the time. [4] Tulisa and Danny were also spotted smiling as they left Tesco near his £1 million hone the next day. [5] And yesterday morning they emerged from his pad as he whisked her to the airport in his £130,000 Bentley. [6] Distraught Stephanie, who is four months pregnant with their second child, said: "He's not famous and nobody knows who he is, but Tulisa is obviously a homewrecker. [7] "She knows about me and the baby because when she called him to let him know the story was breaking, he told me she said to him, 'I'm just letting you know now there's a story breaking as I know you've got a baby on the way and I know you won't want your girlfriend to see it'. It's fair enough if a girl doesn't know about it, but the fact that she knows I've got a baby on the way and another child is bad." [8] They have been together for six years and she says she gave up her law career for him. [9] On Tuesday, she visited her mum in Manchester with her daughter. [10] She claimed Danny was supposed to visit her so they could go Christmas shopping. [11] But he apparently told her he could not go because he had training in Newcastle. It turned out though he was in Manchester - with Tulisa, 24. [12] Stephanie said the final insult came when her friend spotted Danny and the singer at Tesco near the luxury home she shares with him in Newcastle on Wednesday. DISTRAUGHT [13] Last night Stephanie insisted their relationship was over after the revelations. [14] She said: "I don't want anything more to do with him now. He's made me feel like absolute s***." [15] She first heard about Danny's meeting with Tulisa when he called her on Wednesday evening. [16] Stephanie said: "Danny said that Tulisa had called him to tell him that a story about the two of them was going to appear in the paper, saying they'd been seen out together. He was upset and saying sorry and saying it was nothing, that he just went for food with her and his friends." [17] But she claimed his story began to unravel when she grilled him. "I asked if he had messaged her and if he speaks to her on the phone," she said. "He admitted he has been texting her. [18] "I said it's obviously more than just food with friends, and he told me they got on well. [19] "So I asked if he'd slept with her but he said no it was just food. [20] "I was hysterical. I asked him, 'Do you want to sleep or you have slept with her, are you telling me that you cheated on me?"' [21] As a pregnant mum, she was horrified that she found herself competing with Tulisa. [22] She said: "I told him I cannot compete with one of the most high-profile women in the media, but I'm loyal and I've loved you for six years and I'm the mother of your children and I've been the best girlfriend I can be. [23] "He kept just saying, 'I'm sorry'. I have a law degree and I gave up my career as a solicitor to have children with him." [24] Danny is believed to have bedded Natasha Giggs, Ryan Giggs' sister-in-law, when he played for Manchester United and has also been seen on nights out with Big Brother glamour model Imogen Thomas and Emmerdale star Roxanne Pallett. [25] Tulisa smiled for stunned shoppers as she left the Tesco store in Kingston Park in Newcastle on Wednesday night, with Simpson by her side. [26] They walked out of the store side by side, with Danny carrying two bags of shopping. [27] Tulisa, who has just released a new album, smiled as a number of fans spotted her and started taking pictures. [28] The pair were up at 6.30am the next day and emerged at 7.50am from his home in a smart area on the outskirts of Newcastle, to make a dash to the city's airport where she was due to catch a plane to London. But the flight was cancelled due to fog at Heathrow. [29] So the United star drove her back to his place in his Bentley, pulling her designer Louis Vuitton luggage behind him. [30] The pair then played a cat-and-mouse game with photographers. [31] When Danny left for training around 9.30am, it was thought Tulisa was with him. But she waited behind at his home before getting a taxi back to the airport for the 12.15 BA flight to London. [32] Before she boarded, we asked if our exclusive on her friendship had caught her by surprise. [33] She flashed a beaming smile and joked: "I am not going to tell you that now am I?" [34] She chatted with BA staff about the "nightmare" trying to get to London on the earlier flight before making her way through customs, dressed in white plimsoles, skinny blue jeans, designer sunglasses and a white hooded top. MYSTERIOUS [35] Before boarding, she said: "I am not going to talk about it. I am hardly going to sell a story on myself am I?" But she added intriguingly: "I will say something when I am ready." Newcastle Utd star's pregnant girlfriend calls singer a 'homewrecker' Steph says it is over and she doesn't want anything to do with him DISTRAUGHT

MYSTERIOUS

[6]The article on pages 6-7 was accompanied by four photographs with captions: i) [Caption, beneath a photograph similar to the one that appeared on the front page] FAMILY Stephanie and Danny with baby ii) [Caption, beneath a photograph of the Claimant with Miss Contostavlos in the Claimant's car] GETAWAY Leaving Tesco in Danny's Bentley iii) [Caption, beside a photograph of the Claimant with Miss Contostavlos] SMILING Tulisa at Tesco with Danny iv) [Caption, beside a photograph of the Claimant with Miss Contostavlos] HOODED Pair at airport yesterday

The rival meanings

[7]The meanings which the claimant attributes to the words complained of in each version of the article are that:
“(1) by entering a romantic relationship with the celebrity Tulisa Contostavlos, the Claimant was unfaithful to his partner Stephanie Ward, with whom he was in a stable, long-term and committed relationship, living together with her and their daughter as a family, despite Miss Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child. (2) in so doing, the Claimant callously destroyed the secure family unit that his long-term partner and infant daughter had enjoyed and which was soon to be joined by the child they were expecting.”
[8]It is convenient to set out the defendant’s Lucas-Box meanings in their draft amended form. The draft Amended Defence pleads at paragraph 6 that the defendant will justify the meaning pleaded by the claimant or alternatively the following meaning:
“that by entering a romantic relationship with the celebrity Tulisa Contostavlos, the Claimant was unfaithful to his loyal and long term partner Stephanie Ward, with whom he was still in a sexual and long term relationship, who was the mother of his child and who, as she had told him, was pregnant with another child of his, thereby upsetting Stephanie Ward and bringing their relationship to an end.”

The law

[9]The natural and ordinary meaning of words for the purposes of a defamation claim is the single meaning that would be conveyed by those words to the ordinary reasonable reader. The principles that apply to the determination of that meaning are well-established. Both parties cite the well-known formulation of 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... (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.”
[10]As principle (3) indicates, the exercise is one of impression. As Eady J said in Gillick v Brook Advisory Centres (cited in Jeynes at [7]) “Judges should have regard to the impression the words have made on themselves in considering what impact it would have made on the hypothetical reasonable reader”. Principle (6) requires the court to form a view on how the representative hypothetical reader of the particular publication concerned would be likely to understand the words, bearing in mind where in the publication the words appear; the reader’s familiarity with the nature of publication in question; and any expectations created by that familiarity: see John v Guardian Newspapers Ltd [2008] EWHC 3066 (QB), [22]-[23], [32]. I would add, however, that this is an exercise which needs to be undertaken with care. The court can take judicial notice of facts which are common knowledge, but facts which are not need in principle to be admitted or proved, not assumed. The court should beware of reliance on impressionistic assessments of the characteristics of a newspaper’s readership.[11]At common law, a meaning is defamatory if it substantially affects in an adverse manner the attitude of other people towards the claimant, or has a tendency to do so: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985, [96]. In this case the hard copy publication and online publication up to 31 December 2013 are governed by the common law. Online publication after that is subject to s 1(1) of the Defamation Act 2013 which adds that “a statement is not defamatory unless it has caused or is likely to cause serious harm to the reputation of the claimant.” But neither side suggests that this change in the law is material to my decision in this case.[12]Indeed, Mr Wolanski has advanced no submission that these articles are not defamatory of the claimant. There is also a good deal of common ground between the rival meanings. The contest on meaning is a relatively narrow one. The main issues are whether, as the claimant argues, the article portrayed him and Ms Ward as being, before the relationship between the claimant and Tulisa Contostavlos, “in a stable and committed relationship, living together with their daughter as a family”; and whether the words meant that the claimant’s behaviour had destroyed a “secure family unit”.

Submissions

[13]Mr Barca QC submits on behalf of the claimant that the allegations just mentioned are clearly made in the articles, central to them, and critical to their defamatory sting. He draws attention to the word “homewrecker” which features prominently in both the page 1 text and the page 6 headline, and is then repeated in bold type in paragraph [1], and again in paragraph [6] on page 6. Although the allegation is directed against Ms Contostavlos, it is pointed out that she cannot be a “homewrecker” unless there is a home to wreck. Reliance is placed on the word, “FAMILY”, used twice in picture captions as a description of the relationship between the claimant, Ms Ward and their child.[14]Mr Barca points to the fact that readers are told not only that the couple have one daughter and are expecting a second child, but also at [8] that “They have been together for six years…” and the similar message at [22]. Mr Barca relies on the statement at [12] that Ms Ward “shares” a “luxury home in Newcastle” with the claimant; and on [8] where the reader is told that Ms Ward says she gave up a career for him as a solicitor and [23], where she is quoted saying “I gave up my career as a solicitor to have children with him” (emphasis added). It is submitted that there is an imputation of breaking up a stable family which ought to be acknowledged in the single meaning the words complained of are held to bear.[15]For the defendant, Mr Wolanski submits that the article says nothing at all about the relationship being stable, committed or secure; the impression it gives of the relationship is quite the opposite. The claimant is not portrayed as a family man but as a serially unfaithful “lad”. Mr Wolanski relies on the references to the claimant having (allegedly) “bedded” a fellow player’s sister-in-law, and been “seen out” with a glamour model and a TV star, which he characterises as euphemistic suggestions of a sexual relationship. The suggestion is, he submits, that these were recent events. He points to the reference to the claimant being a “legend” and to getting “gentle ribbing” and a “bit of stick”from team mates, suggesting that the implication is that this is because of his “legendary womanising”.[16]It is submitted that Ms Ward is depicted as a devoted and loyal girlfriend and mother to the claimant’s children. She is the one who sought to create a “home” – hence her view that Ms Contostavlos is a ‘home wrecker’ – but she would be seen by readers as someone who did not trust the claimant, immediately doubting his explanation of his relationship with Tulisa. She is portrayed as someone for whom the latest indiscretion has come as the final straw. None of this suggests, says Mr Wolanski, that the relationship between her and Mr Simpson was stable, committed or secure.[17]Mr Wolanski submits, further, that the article does not suggest that the claimant, Ms Ward, and their daughter were “living together as a family”. He relies on a reference in paragraph [10] to the claimant being “supposed to visit her so they could go Christmas shopping” in Manchester (emphasis added); a reference at [4] to “his £1 million home” and the description of that home at [12] as one “she shares with him in Newcastle” rather than one they live in together. These parts of the article are said to give the reader the impression that the couple are not or may not be cohabiting at all, but living separately at least some of the time and paying each other visits. That impression is bolstered, it is submitted, by references to them communicating by phone, suggesting a long-distance relationship. Mr Wolanski adds that in any event sharing a home does not connote a stable, secure or committed relationship. “Plenty of cohabitees endure unstable relationships.”[18]Mr Barca, anticipating that points of this kind would be taken, submitted in his skeleton argument that “readers of The Daily Mirror are likely to take a more impressionistic approach, and be more ready to read in implications than, e.g., readers of broadsheets who are used to analysing long and complex articles on matters of public interest.” As a result, headlines and picture captions are very important and are likely to make an important contribution to the sting of an article. Mr Wolanski for his part suggested that Mirror readers are accustomed to “love rat” stories about Premier League footballers who drive Bentleys, and would not approach this story with an assumption that the claimant was a stable family man.

Discussion and determination

[19]I do not think I should treat Daily Mirror readers as having some special expectations or knowledge about this kind of story. Nothing is pleaded nor is there any evidence on that score. I do not think either that I should approach these articles on the basis that Mirror readers are peculiarly prone to attach importance to headlines or photo captions. It is common knowledge that the overall impression conveyed by the written word often depends very much on what points are picked out by the writer or editor for particular emphasis. This does not apply only to Daily Mirror readers, or only to newspaper readers. Most written material uses some means of signalling to the reader what are the main messages of the text. Newspapers have particular ways of emphasising points, by featuring them in a headline, sub-headline, picture caption, or section heading, or by repetition. Different papers may have different customs in this respect, and the methods used online can differ from those used in print. But the public at large are aware of the methods used, and there is nothing unusual about the ways these articles draw attention to their main messages.[20]I have had regard to the impression made on me when I read the article for the first time. The reader of these articles is given firm signals, and could not miss the messages that there had been infidelity by the claimant with Ms Contostavlos, and that this made her a “homewrecker” – an activity in which the claimant had clearly played his part - and that as a result Ms Ward was “devastated”, and now wanted nothing more to do with the claimant. The word “home” in “homewrecker” is mainly metaphorical. It indicates that there was in existence an established family relationship between two or more people. But the word also suggests a family living together in the same dwelling. When the word “homewrecker” is used four times in an article, the clear and dominant impression conveyed is that a family unit, sharing a home, has been wrecked or broken up.[21]The detail in the articles supports this. The family unit clearly consists of the claimant, Ms Ward, and their daughter. Striking features are the two pictures of the three together, each with the caption FAMILY. One of those is prominently placed by the masthead on the front page. The article gives the impression that the relationship is established, continuous and committed. Ms Ward is repeatedly described as the claimant’s “girlfriend”, which is evidently how she is known to Ms Contostavlos (paragraph [7]). There is the word “together” and two references to a 6 year relationship, with no suggestion of any gap. In addition, I noted that the claimant is said to have been upset and to have apologised repeatedly to Ms Ward. That is consistent with the claimant acknowledging a commitment and obligation to her. The statement that the claimant and Ms Ward “share” a “home” in Newcastle naturally suggests in context that they live together there, with their daughter.[22]Mr Wolanksi’s submissions in reliance on paragraphs [4], [10] and [12] are altogether too subtle. The reference to “his” home in Newcastle, and other similar references in other paragraphs, do not detract from the statement that the couple “share” that home. The planned “visit” by the claimant for Christmas shopping makes sense. Ms Ward had gone to Manchester to see her mother, according to paragraph [9], and the claimant was supposed to be training in Newcastle: [11]. Even the scrupulous reader would not think phone contact between the couple on the Wednesday odd, when they had been in different cities on the Tuesday, and the claimant is a professional footballer, whose job means moving around the country. I am quite satisfied that the ordinary reasonable reader would understand the relationship to be not only long-term, but an established one involving the couple living together continuously in the same home, with their daughter. The whole tenor of the article suggests this, and there is nothing of significance that tends to point in the opposite direction.[23]I agree with Mr Wolanski, however, that the references to the claimant’s relationships with other women mean that it is overstating the matter somewhat to say that the article portrays the relationship as a “stable” or the family unit as “secure”. Mr Barca suggested that the references to the three women named in paragraph [24] were not tied in to the period of the claimant’s relationship with Ms Ward. They were not, in terms, but that is the impression conveyed by an article that suggests that the claimant, then aged 25, had been in a 6-year relationship with Ms Ward. The claimant would appear to the ordinary reader to be someone who had indulged in infidelity on several previous occasions. However, the reader would understand that he had remained in a committed long-term relationship, living as a family with a loyal partner and their child, which he had broken up by his latest infidelity.[24]In my judgment the words complained of bear the natural and ordinary defamatory meaning that “by entering a romantic relationship with the celebrity Tulisa Contostavlos the Claimant was unfaithful to his loyal partner Stephanie Ward, with whom he was in a long-term and committed relationship, living with their daughter as a family; he did so despite Miss Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child; and by doing so he callously destroyed his relationship with Ms Ward and broke up an established family unitwhich was soon to be joined by the child they were expecting.”[25]This meaning differs from the claimant’s meaning by omitting the words “stable” and “secure”, but it includes the word “committed” and adds “loyal” and “established”. The italics identify elements which are not included in the defendant’s Lucas-Box meaning, either in its original form or in its proposed amended version.

The Strike-out and Amendment Applications

[26]The claimant maintains that the existing defence of justification is not capable of being an answer to the claim, and opposes the proposed amendments on the basis that even if they were made they could not save the Defence. The defendant’s position is that the particulars of justification are sufficient to meet the defamatory sting of the articles, “whether as pleaded by the claimant or defendant, or in any other formulation which the court may find.”[27]The relevant principles are not in dispute. i) A defendant does not have to prove the truth of every aspect of the words complained of. It is sufficient for the defence to prove the substantial truth of the defamatory sting of the words. ii) The defence must however meet the whole defamatory sting. If the words contain a defamatory imputation of substance which is not covered by the plea of justification the defence cannot succeed. iii) At the present stage, the question for the court is whether a trial judge could conclude that the pleaded case of justification, if established, proves the substantial truth of the words complained of.[28]The above is subject to modification in cases to which s 5 of the Defamation Act 1952 or s 2(3) of the Defamation Act 2013 apply, but those sections are not relied on or relevant here.[29]It is convenient to start by considering the parties’ submissions about the rival meanings, to the extent that those submissions remain relevant now that I have reached a conclusion on meaning. Mr Barca submits that there are significant qualitative differences between the gravamen of the parties’ meanings, the most important aspect being the way in which the parties’ relationship is treated. There is a “world of difference”, he says, between individuals who conduct a sexual relationship, even a “long term” one in which one of the participants is “loyal”, and two individuals whose commitment involves settling down together, sharing a home, and living in a family unit in which, together, they raise their children. “Infidelity which imperils or destroys a home and family is particularly disreputable.”[30]Mr Barca refers in this context to a decision on meaning of Tugendhat J in Contostavlos and Simpson v News Group Newspapers Ltd [2014] EWHC 1339 (QB). That is a libel action brought by the claimant and Ms Contostavlos over an article published in The Sun on 16 November 2012 which referred to their relationship. Mr Barca relies on the judgment for paragraphs [19]-[21] in which, he submits, the judge treated an imputation of infidelity by the claimant as being made materially different and worse because, according to the article in that case, Ms Ward was the claimant’s domestic partner, with whom he had already had one child, with whom he was living in a family home, and he knew she was pregnant. (I add that Mr Barca rightly did not suggest that the Judge’s decision on the actual meaning conveyed by The Sun article would help me in this case and, since that is an action over a different article, I have deliberately avoided reading the words complained of in that case in the course of forming my judgment on meaning). Mr Barca adds that the allegation that Ms Ward gave up her legal career to have children with the claimant adds materially to the defamatory sting, as it conveys a high degree of commitment by her, placing a correspondingly heavy duty of fidelity on the claimant.[31]Mr Wolanski submits that the real sting of the article lies in the imputation of infidelity; the allegation is that the claimant’s infidelity involved the betrayal and letting down by him of a woman who has shown loyalty to him over a period of years and striven to do her best for him; if there is an imputation that the couple were living together as a family with their daughter then that, he submits, is mere “ballast” that does not add anything of significance to the defamatory meaning of the words. Mr Wolanski submits that the defendant’s draft amended Lucas-Box meaning encompasses all the major defamatory components of the article: infidelity to Ms Ward, when she had been loyal and the relationship was sexual and long-term, and she was pregnant with the claimant’s child; and upsetting her and bringing the relationship to an end.[32]I do not accept these submissions. It is obvious that the imputation of infidelity forms a substantial element of the defamatory sting of the article. But it is not the whole picture. I have agreed with Mr Barca that the articles suggest that what was “wrecked” by the claimant’s infidelity with Ms Contostavlos was not just a long-term relationship with Ms Ward but a committed relationship and an established family unit consisting of the claimant, Ms Ward, and their daughter, living together, which was to be added to when their second child was born. I do not consider that this aspect of the meaning can be dismissed as “ballast” or of no significance. To break up an established family unit, living together, which includes one young child and another on the way is behaviour significantly different from bringing an end to a relationship between a couple who are not living together in an established family unit. The impact on the family members, and in particular the child and unborn, is likely to be very different.[33]I also accept that the element of the defamatory meaning which refers to Ms Ward having given up a legal career to have children with the claimant, which the defendant does not seek to justify, adds to the defamatory sting by making the claimant’s breach of faith with the mother of his children appear graver. I remind myself that I am not here trying the issue of justification but carrying out a filtering exercise of the nature identified above, based on the pleaded cases. But for the reasons I have given, in my judgment no reasonable tribunal of fact could conclude that the defendant’s meaning meets in full the true defamatory sting of the words complained of.[34]Nor do I accept that the defendant’s draft amended particulars of justification are capable if proved of establishing the substantial truth of the meaning that I have found the article to bear. It is unnecessary to recite the detail of those particulars. Suffice to say that the picture they present is to the following effect. The couple met in 2006 and had an intermittent relationship for the next 4 years, during which she obtained a law degree and worked at a solicitors’ firm. They began a committed relationship in June 2010, and Ms Ward “did not continue with her legal career”. They lived together in a house in Newcastle from late 2010 until the birth of their daughter in July 2011 and thereafter - with a break from the end of 2011 into early 2012 – until about April 2012. At that time, Ms Ward moved with their daughter into a house in Manchester owned by the claimant, whilst he lived in Newcastle. The family is not said to have lived together at any time between April 2012 and the publication of the article seven months later.[35]It is said that during that period there were frequent visits by Ms Ward to Newcastle and two holidays together, one with their daughter. It is alleged that they had a continuing though evidently intermittent sexual relationship, including a night together on 4 November 2012, and that Ms Ward was sexually faithful to the claimant, and thus loyal. The defendant’s case is that the couple eventually resumed their relationship in July 2013 and moved back in together in January 2014. This is all well after publication, but is relied on as an indication of the committed and long-term nature of the relationship generally. Although the Defence does not seek to justify the epithet “callous” I do not see that as a difference that would necessarily be held material at a trial.[36]At this stage of the case I have to make allowance for the fact that I am addressing a pleaded case and not evidence. Even so, the account of events contained in the draft amended particulars remains in my judgment clearly and significantly different from that which emerges from the article. It is conspicuously not alleged that Ms Ward gave up her legal career for the sake of having children with the claimant, let alone that the claimant knew this. More importantly, the particulars of justification nowhere allege, nor could the facts there set out support findings, that the claimant and Ms Ward were living together as a family with their daughter at the time the claimant began his relationship with Ms Contostavlos; or that the claimant’s infidelity broke up an established family unit. On the contrary, it is clear from the particulars that this is not said to be the case.[37]There are therefore components of the defamatory meaning of the article which in my judgment would inevitably be held to contribute significantly to their defamatory sting, the truth of which could not be established by proof of the defendant’s particulars or proposed amended particulars.[38]For these reasons I refuse permission to amend the Defence and uphold the claimant’s application to strike out the existing plea of justification. This does not mean that none of the facts relied on by the defendant will be taken into account by the court in assessing what damages should be paid by the defendant. It has been well-established since the decision of the Court of Appeal in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 that a defendant may rely in mitigation of damages on facts which do not suffice to prove the truth of what was published, but form directly relevant background context to the publication complained of.[39]Burstein represented a relaxation of the law as previously understood, which was held to encourage overly optimistic pleas of justification placed on the record with an eye to reducing damages. Here, the Defence already pleads reliance on the particulars of justification by way of mitigation. This is not said in the Reply to be an illegitimate plea, and Mr Barca accepts that in principle there could be Burstein mitigation here. So the particulars of justification, or at least some of them, may well re-enter the case as particulars of mitigation by amendment. However, no such application is before me.

Permission to join Ms Ward as Part 20 Defendant

[40]Permission to make such a claim is required because it comes after service of the Defence: CPR 20.7(3). The defendant’s application is accompanied by a draft Part 20 claim form and a statement of case entitled Particulars of Defendant’s Claim against Third Party. Those particulars assert that on 14 November 2012 Ms Ward telephoned Damien Fletcher, one of the article’s co-authors, seeking to provide information for publication. It is alleged that in the course of the conversation that followed Ms Ward conveyed information about the relationship intending or foreseeing that the defendant would publish it, in the manner that it did, and that the defendant published relying on Ms Ward’s veracity. It is alleged that if and in so far as the defendant is held liable to the claimant Ms Ward is jointly liable for any damages awarded, and a contribution is sought under the Act of 1978 as indicated at the outset of this judgment.[41]The application is supported by the evidence of the defendant’s solicitor, Mr Charalambous, which explains that Ms Ward “volunteered the information for publication and subsequently provided further relevant information which was the basis for the plea of justification”. After the relationship resumed, however, she “became antagonistic towards the Defendant” and indicated that she would support the claimant in his claim. She maintains this stance. Mr Charalambous says however that the defendant will call Ms Ward as a witness, if necessary by compulsion. The facts he states would tend to suggest that she may give evidence for the claimant. At any rate, Mr Charalambous asserts that it would be just and equitable for Ms Ward to be made to contribute to damages if the court finds the defendant liable on the grounds that the information she provided was untrue.[42]The defendant’s application was served on 12 January 2015. By letter of 13 January solicitors for Ms Ward replied. Their letter concluded that Ms Ward would not oppose the application for permission but would defend the threatened proceedings vigorously if issued. However, it also asserted that the claim had “no prospect whatsoever of success” and, in addition to maintaining that the claim was unprecedented to their knowledge, made seven specific points.[43]I am not sure it is unprecedented but it is certainly unusual for a newspaper to seek a contribution from a source. That, however, is no doubt for understandable commercial reasons. There seems to be no reason of principle why, in appropriate circumstances, a source may not be held liable to contribute to damages payable by a publisher to whom the source has provided a story for publication. Whether a court would conclude that Ms Ward should contribute to damages is not for me to decide at this stage. In my judgment the defendant’s draft claim form and Particulars disclose a reasonable basis for a claim against Ms Ward for a contribution, and it is convenient for that claim to be brought within the existing proceedings, rather than separately. Ms Ward’s solicitors have not suggested otherwise. The points that they do make do not in my opinion provide a basis on which I could accept their assertion that the claim has no real prospect of success.[44]The first point made by the solicitors’ letter is that Ms Ward owed the defendant no duty of care. That may very well be right, but none is alleged by the defendant. Points 2-5 and 7 all raise issues of fact concerning Ms Ward’s role in and responsibility for causing or authorising publication. These points are not supported by evidence and cannot be resolved on this application. Point 6 is that Ms Ward was not provided with any form of remuneration. That again is a point of fact, and I cannot at present see how it would provide an answer to the proposed claim.[45]For these reasons I concluded that permission should be granted and gave permission at the hearing.

Cited in 12 later judgments

and 3 more of the most senior