Brown v Bower & Anor [2017] EWHC 1388 (QB)

[2017] EWHC 1388 (QB)Case No HQ17D00558IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONMEDIA AND COMMUNICATIONS LISTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/06/2017
Before
MR JUSTICE WARBY
Between
Nicholas Hugh BrownClaimant(1) Tom BowerDefendants(2) Faber & Faber LimitedDefendant
Adrienne Page QC & Jacob Dean (instructed by Carter-Ruck) for ClaimantCatrin Evans QC (instructed by Wiggin LLP) for DefendantsHearing Hearing date: 7 June 2017
Judgment ApprovedMr Justice Warby :INTRODUCTION
[1]The defendants in this libel action apply for orders and directions for the trial of preliminary issues. Four preliminary issues are proposed. They can be summarised as meaning, defamatory tendency, defamatory impact, and Jameel abuse. The application is made before service of a Defence.[2]The case for the defendants is, in summary, that the words complained of are not defamatory: they do not bear any meaning that is defamatory at common law or, if they do, the claimant’s case fails to satisfy the serious harm requirement imposed by s 1 of the Defamation Act 2013. Alternatively, it is said that the case on serious harm is weak, that the action is not justified by any real need to protect or vindicate reputation, and that it is therefore an abuse of process of the kind identified in Jameel v Dow Jones [2005] 1 QB 946. The defendants maintain that the early determination of these issues would avoid the risk of wasting unnecessary time and costs, either by bringing the action to a swift conclusion or, failing that, by narrowing the issues which flow from the meaning of the words complained of, including the scope of any defences.[3]The claimant does not oppose an order for the trial of meaning and defamatory tendency as preliminary issues. But he opposes the remainder of the defendants’ application. Until recently, his main grounds of resistance were:(1) that the defendants had refused to state whether they intend to rely on a substantive defence, thus depriving the Court of the opportunity to make an informed case management decision;(2) that the best inference from the defendants’ conduct is that they do not intend to rely on a substantive defence, in which case it would be an inefficient use of the parties’ and the Court’s resources to have a split trial on liability and quantum, given the inevitable and extensive overlap between the two.[4]Shortly before the hearing the defendants felt pressurised into giving an indication of their fall-back position. This was that they might, if unsuccessful at a preliminary trial, advance an affirmative defence of truth. The claimant’s primary response has been to criticise the defendants’ position for obscurity and lack of detail, and to submit that in the absence of any clear or settled statement of the defendants’ position the position remains as it was. The court has been provided with inadequate information, it is said, and should assume that there will or may well be no substantive defence.

THE ISSUES AND THE OVERALL APPROACH

[5]The question before the court is one of case management. The decision must of course be made in accordance with the overriding objective of “enabling the court to deal with cases justly and at proportionate cost”. The court must strive to strike a just balance between the parties, having regard to the importance of the substantive rights that are relied on, and the procedural and practical factors that point towards and against the early determination of individual issues.[6]The difficulties in such cases normally lie in the detail. It is a question of assessing which course of action is, in all the particular circumstances of the individual case, the most likely to achieve the aims specified in CPR 1.1(2), and thereby further the overriding objective. All the factors listed in CPR 1.1(2) are material, of course. Some, however, are of more obvious significance in this instance. There is for instance, no suggestion that the parties are not for these purposes on equal terms. Disproportionately high costs are a particular bugbear of libel litigation, as is delay. So the factors listed in CPR 1.1(2)(b)-(d) must feature prominently in my thinking.[7]Issues I must consider include these: is an order for the early trial of any given issue likely to produce or assist in securing a just conclusion to this dispute, swiftly, and at lower cost than an alternative procedural approach; or is it more likely to complicate the matter, delay the ultimate outcome, risk injustice, and increase cost in the process?[8]In making such assessments it is necessary to bear in mind the general principle, to be found expressed in many authorities, that the court should be alert to the risks of attempting short cuts. It is necessary also to take account of the practical realities of libel litigation, and of some of the peculiarities of the procedural law in this area, including in particular the threshold function played by the serious harm requirement, and the offer of amends regime. I will come to these points in more detail after outlining the relevant facts.

THE FACTS

[9]All the parties are well-known. The claimant, Mr Brown, is the Member of Parliament for Newcastle upon Tyne East. He has held that post for some 34 years, since the General Election of 1983. He is a member of the Labour Party. He held a number of ministerial positions when that party was in government, and in the shadow cabinet. He was the party’s Chief Whip for some 5 years when it was in power, and was re-appointed to that role in October 2016, when the party was in opposition.[10]The first defendant, Mr Bower, is an investigative historian, broadcaster and journalist. He has a high profile as the author of a number of unauthorised biographies of major figures in business, journalism and politics. The second defendant, Faber & Faber, is a long-established publishing house.[11]Mr Brown complains of a passage in Mr Bower’s latest work, “Broken Vows – Tony Blair, the Tragedy of Power”, which was first published by Faber & Faber in or about March 2016. This work (The Book) has appeared and has continued to be sold in hard copy and, it seems, in other formats. The passage complained of appears on p104 of the hardback. Being short, it is convenient to set it out in full:
“In the ensuing discussion about gays in politics, journalist Matthew Parris declared on BBC TV that Mandelson was gay. Days later, Nick Brown, the new minister of agriculture, was accused by the News of the World of paying £100 to rent boys in order to be kicked around a room, and admitted his sexuality.”

PROCEDURAL HISTORY

[12]Complaint was made by letter from Mr Brown’s solicitors dated 10 May 2016. There followed extensive correspondence between them and solicitors instructed by the defendants, which failed to resolve the complaint. Proceedings were issued on 17 February 2017, when a claim form and Particulars of Claim were filed. The claim[13]The meanings complained of in the Particulars of Claim are:- “that the Claimant had been paying £100 a time to young male prostitutes to subject him to violent sexual acts or that there were strong grounds to so believe”.[14]These meanings are alleged to be “defamatory of the Claimant at common law”. It is further and separately alleged that they “have caused serious harm to the reputation of the Claimant”. These twin averments reflect the law as it stands following the enactment of s 1 of the 2013 Act. The effect of that section is that a statement is not defamatory and hence not actionable in defamation unless it has a tendency to defame according to the established standards of the common law and its publication “has caused or is likely to cause serious harm to the reputation of the claimant” (the serious harm requirement).[15]The Particulars of Claim assert that it is “a matter of obvious inference” that serious harm to reputation has been caused in this case; but the matter is not left there. Extensive details are pleaded of matters on which the claimant will rely in support of such an inference. It is unnecessary to set these out here. Broadly characterised, they can be said to fall into seven categories:(a) the nature of the imputation and the response it would be likely to evoke from ordinary reasonable people;(b) the impact that such an imputation would be likely to have on the reputation of “a person such as the claimant”, given his position in politics at the time of the alleged conduct;(c) the authority given to the imputation by the apparent “imprimatur” of the News of the World;(d) the publication of the imputation without any qualification or balance but with, it is suggested, an implication that the claimant did not dispute the allegations;(e) the extent of publication;(f) the fact that some friends and colleagues of the claimant have been shocked and raised the matter with him, from which(g) the inference is invited that others who know him or know of him will have accepted the meanings complained of as true. The claimant has obtained four witness statements from friends and colleagues which are before the court, and which are said to support the case advanced under (f) above.[16]The Particulars of Claim go on to allege that the publication of the words complained of is “likely to cause further serious damage to the reputation of the Claimant in the future”, in other words that the case satisfies the second limb of the serious harm requirement. In support of this averment the Book is described as “a major work of biography on an important political and historical figure” which will be an important source of reference, likely to be retained by purchasers and re-read. It is likely to have been obtained by public and academic libraries and to be borrowed or consulted by users in future, it is said.[17]There are also, separately, allegations of serious embarrassment and distress, and a claim for aggravated damages based on the defendants’ alleged failure to verify the allegation with the claimant or contact him for comment, and on the continued inclusion of some of the words complained of in the paperback edition, published after complaint was made. The application[18]The defendants’ application notice was filed on 11 May 2017, following an earlier request that the claimant consent to an order to such effect, which he declined to do. The application notice seeks an order that there be a trial by judge alone of the following preliminary issues: i. Insofar as the words complained of in this claim refer to the Claimant, what meaning(s) do they bear? ii. Is/are the meaning(s) found under (i) above defamatory at common law? iii. If the meaning(s) found under (i) above is/are defamatory of the Claimant, has the Claimant established that the words complained of have in fact caused or are likely to cause serious harm to his reputation pursuant to section 1(1) of the Defamation Act 2013? iv. Does the claim constitute an abuse of the court’s process pursuant to the principles established in Jameel v Dow Jones [2005] 1 QB 946?[19]The defendants sought and obtained an extension of time for service of a Defence, and subsequently an assurance that no steps would be taken to enter default judgment pending the outcome of the application. The defendants’ stance at the time the application was filed was that it was irrelevant to ask or consider whether they might advance any substantive defence to the claim. Thus, in a letter of 24 May 2017 their solicitors wrote:
“As we keep repeating, the existence or non-existence of a substantive defence is irrelevant at this stage where the burden is on your client to satisfy section 1. Our clients are not required to plead a substantive defence in advance of the court’s determination of the application ....”
The defendants’ case on serious harm[20]Under cover of the same letter, however, the defendants did accede to a request from the claimant’s side to particularise their case on serious harm. They did so in a helpful document headed “Defendants’ summary response to Claimant’s pleaded case on serious harm”. To summarise the summary, its main features are these.[21]The defendants deny that serious harm was caused; they deny that this is, or can properly be, a matter of inference; and they deny that the matters pleaded support any such inference. They then make a broad point: that a person in the claimant’s position must be expected to show a high level of tolerance of defamation, such that “it would only be in relation to the publication of the most grave allegations that in principle a person in the Claimant’s position could establish serious harm”. It is said that the allegation complained of “comes nowhere close to that level of severity”. This, which I shall call the Public Figure Point, raises an issue of principle relating to the nature of the allegation and the claimant’s status. It is, as Ms Evans QC accepts, a novel point of law.[22]The defendants’ summary then proceeds to put the claimant to strict proof of his case under s 1 of the Act “in the light of” various matters: the fact that this claim relates to an allegation dating back nearly 20 years; that the allegation was published then in the News of the World and elsewhere, and repeated later, regularly, in various media; that the claimant has not taken any action over any of this; and that his career has prospered nonetheless. It has become clear in the course of the hearing that much of the factual account of things in this part of the summary is disputed. But this line of defence raises what appears to be a novel point, which might be called the Reverse Dingle Point.[23]This label refers to what is known as “the rule in Dingle”, of which I gave this broad summary in Lachaux v Independent Print Ltd [2015] EWHC 2242 (QB) [2016] QB 402 [15(9)]:
“In the class of case, of which the present is an example, where many have published words to the same or similar effect, it is not legitimate for a defendant to seek to reduce damages by proving the publications of the defendant or others, and inviting an inference that those other publications have injured the claimant’s reputation … Dingle v Associated Newspapers Ltd [1964] AC371.”
[24]Here, the defence relies on other publicity to the same or similar effect to prove that the imputation complained of has not injured the claimant’s reputation, or not seriously. The argument is that any evidence or inference that might otherwise lead to the conclusion that the words complained of have caused serious harm to the claimant’s reputation is rebutted by evidence that(a) others gave publicity to the same or similar information about the claimant and yet(b) his professional career has flourished. This would seem to be an inferential case. Whether Dingle has any bearing on this line of argument may be a matter for consideration.[25]Next, the defendants’ summary addresses the specifics of the claimant’s case. It is denied that the allegation is either “self-evidently seriously harmful”, or particularly damaging for a person in the claimant’s position. It is denied that the imputation was given added weight or force by the reference to the News of the World, or by the omission of any reference to the claimant’s denial, or other features of the publication that are relied on. It is admitted that the words complained of were read by a very large number of people, around 33,000 copies having been sold, it is said. It is however denied that the four witness statements to which I have referred are evidence of serious harm to reputation. As to the claimant’s case that his reputation is likely to suffer serious harm in future, as people resort to library or archive copies of the Book the defendants deny the factual case, but they also say this:
“… even if the Book were to be a resource for journalists and other writers in the future, the same would be true of all the other articles and books referred to above which are a central part of the public archive about the claimant so far as the rent boy allegation is concerned. It would be not only irrational but an unjustifiable interference with the defendants’ Article 10 rights to make them liable for this alleged effect of future publication, but not other publishers who published the same or similar allegations and against whom the claimant apparently took no action.”
This is, as Ms Evans QC accepts, a further point of law which is novel and of some potential importance. I shall call it the Archive Point. It would seem to have at least some potential interaction with the Reverse Dingle Point. Evidence[26]In support of their application the defendants have filed a witness statement from Caroline Kean of their solicitors. This exhibits the documentary materials on which the defendants would propose to rely in support of their pleaded case on serious harm. This is clearly relevant to the assessment I need to make, of the nature and scale of the evidential inquiry that would be required in order to resolve the issues raised by the rival cases on serious harm. A possible defence of truth[27]By letter sent on the eve of the hearing, the defendants changed their position in relation to substantive defence. The letter, dated 6 June 2017, first set out in clear terms the defendants’ stance as to what they were or were not required to do by way of pleading or indication of a substantive defence:
“… defendants such as our clients who, faced with what they regard as a very weak section 1 claim, nevertheless have to decide for the usual proportionality reasons whether to make an offer of amends (which means that contrary to their true position they are required to accept that serious harm has been caused by the publication complained of) or to challenge section 1 as a threshold issue, as is their right, and leave their election as to defences until after section 1 has been determined. As a matter of principle and fairness, a defendant in that position should not be forced to particularise any substantive defences they may intend to rely on in the event that the section 1 issue is not determined in their favour…”
This line of reasoning has been a prominent feature of the argument advanced before me by Ms Evans. It will be convenient to refer to this as “the Election Point”.[28]The letter went on, with evident reluctance, to outline what the defendants might in due course say by way of affirmative defence, as follows:
“… Whilst our predecessors may not have referred to any substantive defences, we have been carrying out our own investigations. The result is that – should our client be so advised in due course and subject to any ruling on meaning and/or serious harm – our clients may indeed rely on a truth defence to a meaning of reasonable grounds to suspect your client of paying a rent boy or rent boys for rough sex. We should make clear that this is not intended to have the precision of a pleading at this stage because our clients are not obliged at this stage to elect their defence. They continue to reserve their right to make their election at the appropriate time.”
PRINCIPLES Preliminary issue trials[29]The authorities contain many a cautionary tale about, and many warnings against, what Lord Neuberger MR has called the “siren song” of agreeing or ordering preliminary issues which “should normally be resisted”: Rossetti Marketing Ltd v Diamond Sofa Co Ltd [2012] EWCA Civ 1021 [2013] Bus LR 543 [1]. As is well-known, attempts at short cuts may lead to additional complexity, delay and cost.[30]A helpful summary of the approach the court should take when considering whether to make such an order is to be found in the judgment of David Steel J in McLoughlin v Jones [2001] EWCA Civ 1743 [2002] QB 1312 [66]:
“(a) Only issues which are decisive or potentially decisive should be identified; (b) The questions should usually be questions of law; (c) They should be decided on the basis of a schedule of agreed or assumed facts; (d) They should be triable without significant delay, making full allowance for the implications of a possible appeal; (e) Any order should be made by the court following a case management conference.”
[31]The need to prioritise questions of case management was emphasised by Briggs J (as he then was) in Lexi Holdings PLC v Pannone & Partners [2009] EWHC 3507 (Ch) [4]:
“In my judgment, questions of case management, questions of cost, delay and the use of the parties’ and the court’s resources must come first and foremost in the consideration whether any particular issue should be dealt with as a preliminary issue.”
[32]These principles have guided the court in defamation cases as in other classes of litigation. A preliminary issue trial was ordered where a trial on justification would take four to six weeks but a 3 day trial might resolve the case (as in the event it did): GKR Karate v Yorkshire Post (No. 1) [2000] 1 WLR 2571. But in Macintyre v Phillips [2003] EMLR 9 such an order was refused as there was no “contrast … between a very short first trial and a very long second trial” [37]. Preliminary trials of meaning and defamatory tendency[33]Meaning and defamatory tendency have long been recognised as key factors in any defamation claim. A claim can only succeed if the statement complained of is defamatory according to the common law criteria. That depends critically on what it means. The meaning of the statement complained of also governs what defences can properly be advanced, and is a key determinant of the level of any damages. The ambit of the matters that have to be considered in order to rule on meaning and defamatory tendency is quite narrow. A claimant is required to specify the words complained of in his letter of claim and his Particulars of Claim; the former should and the latter must specify the meaning(s) attributed to those words: see paras 3.1 to 3.3 of the Pre-Action Protocol for Defamation (“the Defamation PAP”) (Civil Procedure 2017 vol 1 p 2590 ff), and PD 53 paras 2.2, 2.3. In many cases no more is required. The matter becomes one of argument, based on these materials. The applicable principles are clear.[34]Until 1 January 2014 the default mode of trial for defamation claims under s 69 of the Senior Courts Act 1981 was trial by jury. The meaning of words is an issue of fact, and hence “a jury issue”. Nonetheless, a procedure was developed for the early determination of whether words were capable of bearing the meanings attributed to them by the parties, or any meaning defamatory of the claimant. This procedure, allowing a “ruling on meaning” was frequently resorted to. It was and remains enshrined in PD53 para 4. But as Sharp LJ observed in Rufus v Elliott [2015] EWCA Civ 121 [8], under this procedure “the threshold of exclusion is a high one. The judge's task under 53PD 4.1 is no more and no less than to ‘pre-empt perversity’: see Jameel v The Wall Street Journal Europe Sprl [2004] EMLR 6.”[35]By s 11 of the Defamation Act 2013 (the 2013 Act) s 69 of the Senior Courts Act was amended so as to abolish, with effect from 1 January 2014, the former “presumption” in favour of jury trial in this class of case, thereby putting it on a similar footing to other categories of claim: see Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB) [2015] 1 WLR 971. This has made it possible to order the trial by judge alone of the issue of “actual meaning”, coupled with the issue of defamatory tendency. Today, such trials are often ordered by consent or, if not agreed, after a case management conference. Such an order commonly satisfies the other criteria identified by David Steel J in McLoughlin v Jones and by Briggs J in Lexi Holdings.[36]As already noted, meaning and defamatory tendency can be decisive. Meaning is an issue of fact, not one of law. But it depends on the application of settled legal principles to a limited range of facts which are commonly beyond dispute. The only evidence that is ordinarily admissible is evidence of the statement complained of. The question whether a meaning has a defamatory tendency is an issue of law, and again the applicable principles are uncontroversial. Preliminary issue trials of this kind are likely to take a matter of hours at most, not days. They can be listed and dealt with promptly (see, for example, Rufus v Elliott [2015] EWHC 807 (QB) [14]-[16]).For the reasons given above, preliminary issue trials of this kind have additional advantages, even if they are not in the event decisive. It will not often be the case that the issues and evidence to be considered overlap substantially with other evidence or issues in the case. Serious harm and Jameel as preliminary issues[37]Section 1(1) of the 2013 Act introduced an additional threshold test for defamation claims: the serious harm requirement. Section 1(1) provides that “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.” A series of cases in the 3 years and more that have passed since the section came into force on 1 January 2014 have examined its substantive and procedural impact.[38]Matters that have been frequently canvassed in the course of this jurisprudence include when it is appropriate for a defendant or a claimant to seek to strike out or apply for summary judgment on the issue, and whether there should be a preliminary issue trial on serious harm and/or Jameel abuse. I believe these issues were first touched on in Ames v The SpamhausProject [2015] EWHC 127 (QB) [2015] 1 WLR 3409. Later cases in which these issues have been considered include Lachaux v AOL (UK) Ltd [2015] EWHC 915 (QB), Decker v Hopcraft [2015] EWHC 1170 (QB), Lachaux v Independent Print Ltd (above), Business Energy Solutions Ltd v Scrivener [2015] EWHC 2948 (QB), Theedom v Nourish Training [2015] EWHC 3769 (QB) [2016] EMLR 10, Sobrinho v Impresa Publishing SA [2016] EWHC 66 (QB) [2016] EMLR 12, Undre v Harrow LBC [2016] EWHC 931 (QB) [2017] EMLR 3, and Bode v Mundell [2016] EWHC 2533 (QB). Other relevant features of defamation procedure The Offer of Amends Regime[39]This entirely statutory regime was introduced twenty years ago by ss 2-4 of the Defamation Act 1996. It is supplemented by PD53 para 3. In outline, it enables a person who has published a statement alleged to be defamatory of another to “offer to make amends” under s 2. That means an offer to make a suitable correction and sufficient apology; to publish these in a manner that is reasonable and practicable; and to pay such compensation and costs as may be agreed or determined to be payable. Importantly, the offer must be made before service of a Defence, and may be relied on as a defence if, but only if, no other defence is relied on.[40]The case law contains some important principles. One, summarised in Barron v Vines [2016] EWHC 1226 (QB) [26] is as follows:
“Where a defendant uses this procedure, it will be considered a significant mitigating feature and attract a healthy discount to the damages awarded: Nail v News GroupNewspapers Ltd [2004] EWCA Civ 1708 [2005] 1 All ER 1040 [41]. The usual discount for a prompt and unqualified offer of amends is between 35-50%: C v MGN Ltd [42] (Bean J) ...”
[41]The level of discount may be affected if the offer is not prompt, or is qualified; or if the apology made or offered is late or off-hand or grudging, or one is offered but none is made. The level of discount may also be affected by other factors identified in Barron v Collins [2016] EWHC 162 (QB) [32]:
“(3) Whether the defendant has acted in a way inconsistent with the conciliatory stance which an offer represents. If the defendant has advanced an ill-founded defence in correspondence, or indicated that the claimant’s character may be attacked, the mitigating effect of the offer may be reduced … (4) Whether a Defendant’s conduct has increased the overall hurt to the Claimant’s feelings. For instance, correspondence may increase hurt to feelings by treating the Claimant dismissively, or by expressing a grudging attitude … Such conduct may at least theoretically make it appropriate to allow no discount at all …”
The Defamation PAP[42]This came into force on 2 October 2000. It aims, among other things “to encourage both parties to disclose sufficient information to enable each to understand the other’s case and to promote the prospect of early resolution” (para 1.2). I have referred to the demands which it makes of claimants in their Letter of Claim. Para 3.4 requires a defendant to provide a “full response … as soon as reasonably possible”. Among the matters that this response “should include” are the following:• If the claim is rejected, then the Defendant should explain the reasons why it is rejected, including a sufficient indication of any facts on which the Defendant is likely to rely in support of any substantive defence;• It is desirable for the Defendant to include in the Response to the Letter of Claim the meaning(s) he/she attributes to the words complained of.[43]The general functions performed by the Pre-action Protocols are set out in the “Practice Direction – Pre Action Conduct and Protocols”, as revised in 2015. This states, among other things, that “13. If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)). The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements …”

The general procedural duties of litigants

[44]Another, more general principle of procedural law that has been highlighted by the submissions in this case is the duty of the parties “to help the court to further the overriding objective”: CPR 1.3.

DISCUSSION

[45]In my judgment it is clearly just and convenient to direct a preliminary trial of meaning and defamatory tendency; the parties have correctly agreed that this is appropriate in principle. It is realistic to suppose that such a trial might resolve the case. The issues are narrow. The words complained of are short and the meanings complained of are straightforward, natural and ordinary meanings. The parties’ arguments as to meaning and defamatory tendency rely on conventional principles. The trial would be short, and little evidence would be required. The matter could be dealt with promptly, shortly, and inexpensively. If the defendants fail in the attempt to have the claim dismissed, the exercise will still have narrowed the issues at relatively modest expense. Paragraphs (i) and (ii) of the defendants’ draft order set out appropriate wording.[46]The answer is perhaps less obvious when it comes to the question of whether serious harm and/or Jameel abuse should be tried as preliminary issues. There are cases in which that course has been taken, and I am sure that there are other cases in which that would be the better course. But there is not, nor can there be, any general rule or principle that serious harm should always be tried as a preliminary issue. Serious harm is, analytically, a threshold issue. No claim can succeed unless the claimant demonstrates that the offending publication has caused or is likely to cause serious harm. But it by no means follows that the issue must be treated procedurally as a threshold issue, by means of a preliminary issue trial. In my judgment, the analysis contained in the defendants’ solicitors letter of 6 June ([27] above) is unsound: there is no “right” to “challenge s 1 as a threshold issue”. Nothing in the statute or the jurisprudence supports that approach. The question of whether such a trial is appropriate will always be a matter for judicial determination in the individual case.[47]In Ames at [101] I observed that in today’s legal context it was “likely … to be preferable to address issues of serious harm or Jameel abuse by means of preliminary issues, with any disputes as to meaning being resolved at the same time.” In Lachaux v AOL at [22] Nicola Davies J agreed with and applied that approach. Hence the preliminary issue trial in Lachaux v Independent Print Ltd. In Decker v Hopcraft I also ordered preliminary issue trial, on a similar basis. But what I said in this part of Ames should not be treated as if it were statute, or a Practice Direction. More importantly, it should not be taken out of context.[48]As Ms Page QC and Mr Dean have pointed out on behalf of the claimant, I was not laying down a rule of practice that there should routinely be preliminary issue trials on serious harm wherever this was raised as an issue. In Ames, an attempt to have the claim dismissed as hopeless or as an abuse had failed, at great expense, without finally resolving the relevant issues. I was contrasting a preliminary issue trial with an application to strike out, or for summary judgment. This is clear from what I went on to say in Ames at [101] and, later, in Lachaux:- “On an abuse or summary judgment application it may well be found, as I have found, that the case is not ripe for a final decision and the facts deserve further examination. At a trial of preliminary issues the court can decide the relevant issues once and for all”: Ames [101] “… where a defendant maintains that the actual or likely harm to reputation is too slight to justify a claim, the starting point should be consideration of section 1; and if that issue is raised it will usually be preferable for it to be tried as a preliminary issue, rather than by way of a striking out or summary judgment application, which may fail on the grounds that the conclusion is not obvious and the prospect of success not fanciful. I emphasise “if” and “usually” because it is not every case in which serious harm will be a real issue; and where it is, a preliminary trial will not invariably be appropriate”: Lachaux [66] (emphasis in original).[49]The defendants have submitted that if meaning is to be tried then serious harm should also be tried as a preliminary issue. The argument is that this is, as a rule, the appropriate course. Ms Evans has relied on what I said in Lachaux at [167]:
“I can say that it is inherently undesirable to separate the trial of issues of meaning and serious harm. Generally, the issues should be tried together.”
However, this too must be read in its context. The passage cited referred back to Ames [101], and the general point being made was that if serious harm is to be tried then it ought generally to be tried with and not separately from meaning.[50]One factor which has played a significant part in the great majority of the cases I have mentioned is the nature and extent of the other issues between the parties. In Ames the background was that substantive defences of public interest and truth appeared likely to be raised, if the court was against the defendants on the issue of serious harm: see [88]. In Lachaux v AOL Nicola Davies J made her decision to order a preliminary issue trial on the basis that defences of truth and public interest had been pleaded in the Independent and Evening Standard actions, and the defendants in the AOL action had stated that they intended to rely on a defence of truth: see [2015] EWHC 915 (QB) [14], [19]. In Decker v Hopcraft the defendant had indicated an intention to rely on substantive defences of truth, honest opinion and common law qualified privilege. Substantive defences were to be raised by the defendants in Business Energy Solutions and in Theedom.[51]In Business Energy Solutions [10]-[11], when explaining the order in that case, I said this: “It is tolerably clear from reading the fairly lengthy defence as it stands that it is likely that substantive defences would be raised that would require reasonably extensive investigation and consideration of a number of factual issues and possibly matters of law. In contrast, the question of whether a publication satisfies the serious harm requirement is one that usually should require only a relatively narrow enquiry and that is one reason why, in cases where substantive defences are pleaded,it is often convenient to provide for a preliminary issue trial, as has been agreed in this case. Where it is clear that serious issues are likely to arise as to whether the serious harm requirement has been satisfied, it may be appropriate to order such a preliminary trial before the expense of preparing and serving a substantive defence has occurred, as took place in Lachaux.” (The emphasis here is added). In Theedom, a defence of truth was pleaded which ultimately took four days to try: [2016] EWHC 1364 (QB).[52]In the light of these cases, CPR 1.3, and the Defamation PAP, there is some obvious force in the argument advanced for the claimant by Ms Page QC, that a defendant to a defamation claim owes a duty to the court to disclose whether he or it proposes to advance any and if so what substantive defence to the claim. Ms Evans submits, however, that it is “the established practice” to defer settling a Defence until after the issues of meaning, defamatory tendency, and serious harm have been determined. She refers in this regard to Lachaux v Independent Print Ltd at [168]-[169].[53]It is true that, as Ms Evans submits, the existence or otherwise of a substantive defence is immaterial for the purpose of determining serious harm. It is therefore unnecessary for the parties to be put to the expense of pleading out such defences or replying to them in advance of a preliminary issue trial on harm (or for that matter meaning and defamatory tendency). This is generally a costly exercise and it is undesirable that it should be undertaken unless and until that is necessary. But to argue, as the defendants do, that a defendant has a right to keep its cards close to its chest, and have the claimant’s case on serious harm tested before “electing” whether to put forward a substantive defence is to go further. In my judgment this further step in the argument is unsound, and unsupported by the authorities. I reject the Election Point.[54]To say that a defendant need not plead a substantive defence before a preliminary issue is resolved is not the same as saying that defendants have a right to stay silent on the question of whether any such defence will or may be advanced, or to keep to themselves even the general nature of any such defence. Defendants to claims in defamation are expected to reveal their hand not just during litigation, but before it starts. The expectations of defendants which are set out in the Defamation PAP are not qualified by the offer of amends regime, which was in place when the PAP was formulated. Nor, in my judgment, does the fact that a defendant seeks an order for a preliminary trial on serious harm justify an exemption from those expectations, or from the requirements of CPR 1.3.[55]Even leaving aside these duties, Ms Page is right to submit that in order to make an informed decision on whether serious harm should be tried as a preliminary issue the Court will need or at least want to know what kind of case the defendant would or might advance if the claimant prevailed on that issue. It may be hard for a defendant to persuade the court to order a preliminary issue without providing some kind of answer to the obvious question:
“preliminary to what?”
[56]I am not persuaded by the defendants’ riposte to this line of argument. There are three strands to it.(1) First, it is said that “to have to serve a Defence could prejudice both parties as it would remove the possibility of the defendant making an offer of amends under section 2 of the Defamation Act 1996.” I agree that the regime has potential advantages for both parties. They include, for claimants, the prospect of a published correction and apology – remedies which the court cannot impose on a defendant. The answer to Ms Evans’ argument is contained in what I have already said: a defence, or defences, can be indicated without being formally pleaded by way of defence. In that way, the potential benefits of the offer of amends regime can be preserved for both parties.(2) Secondly, it is submitted that any indication that a substantive defence would be advanced is likely to be seized on by claimants as a basis on which to claim aggravated damages. I do not think this is a legitimate justification for staying silent. It is recognised today that it is wrong in principle to award aggravated damages on account of a good faith defence of truth: Sloutsker v Romanova [2015] EWHC 2053 (QB) [2016] EMLR 27 [81(i)].(3) Thirdly, it is argued that an indication that truth will be advanced by way of defence will tend to deprive a defendant of the benefit of the discount for an offer of amends, or reduce that discount. I think this is exaggerated, as an answer to Ms Page’s submission. I do not believe the entire discount would be lost; in principle, an offer of amends should almost always lead to a discount, because it will almost always tend to mitigate harm. The discount would no doubt be lower if the offer was not made promptly, but withheld until after an unsuccessful attempt to challenge serious harm at a preliminary trial. In accordance with general principles, an indication meanwhile that truth would be pleaded might lead to a larger reduction in the discount, because of its effect on the claimant’s feelings. But it would be wrong to depart from those principles so as to prioritise for the benefit of defendants the preservation of a discount, or a particular level of discount, over the other considerations set out in CPR 1.1, or to override for these reasons the requirements of the Defamation PAP and CPR 1.3. After all, the primary purpose of the offer of amends regime is to bring about swift settlement, ideally before litigation begins. It was clearly not intended to operate as a fall-back for defendants, after they had tried their luck with a preliminary trial on some substantive issue.[57]I have come to the clear conclusion that in all the circumstances of this case it would not be just or convenient to direct a preliminary trial on the issue of serious harm, or on the Jameel issue. For the reasons which follow, that course would be more likely to complicate, delay, and waste resources than to simplify, expedite, and economise. It would more probably undermine than further the overriding objective.(1) The preliminary trial which I shall in any event be ordering stands a real chance of resolving the case at modest expense without the need for any further trial.(2) Failing that, it seems to me something of a long shot to suggest that the claimant might succeed on the issue of serious harm, yet fail on the Jameel point. There may be cases which are a Jameel abuse for reasons other than a lack of harm to reputation, but this does not seem to be one of them. It is much more likely that the real issue would be serious harm.(3) The preliminary trial proposed on that and the Jameel issue would raise issues of fact and of law. Those would, as I see them, be substantial matters that would in practice require well over a day’s hearing. The factual substratum of the defence case in relation to previous publications is hotly disputed. So are the inferences that may be drawn from the facts, or alleged facts. Ms Page’s submissions have provided cogent illustrations of areas of serious dispute. It seems to me that the case management implications are quite substantial. I am not persuaded that firm case management would succeed in confining the scope of the issues to something relatively modest. It is likely that there would have to be disclosure and witness statements, of significant ambit. There is much room for argument about all these matters.(4) The need to reach clear conclusions on the facts, on a sound evidential footing, is underscored by the fact that the defence case on the law raises three novel issues of principle: the Public Figure Point, the Reverse Dingle Point, and the Archive Point. Issues such as these ought not to be resolved in a vacuum. So there would have to be a thorough factual enquiry.(5) The legal principles that apply when considering serious harm are currently under consideration by the Court of Appeal following the hearing of an appeal from my decision in Lachaux v Independent Print Ltd. It would be all the more undesirable to try these novel issues of law at such a time.(6) It is highly uncertain whether any substantive defence would be advanced, if the claimant were to succeed on the issue of serious harm. The language used in the letter I have cited is very guarded, and hedged around with qualifications.(7) If there were no substantive defence, then the differences between a preliminary trial of all the issues proposed by the defendants and a full trial of all the issues would seem to be relatively slender. An order for a preliminary trial as proposed would cause delay. The probability is that the issues in the preliminary trial on liability would overlap very much with those at the ultimate quantum trial. A preliminary trial would be liable to result in wasteful duplication, and there would be a risk of confusion over what issues had or had not been resolved at the first, preliminary trial.(8) It would not be right to place great weight on any savings that might be made, if the claimant were to succeed on the issue of serious harm as a preliminary issue. The nature of the substantive defence of truth that would be advanced is clear only to the extent that the defendants have identified the defamatory imputations they might seek to defend. Those imputations fall short of the claimant’s highest meanings, so they might not afford a defence, depending on the court’s conclusions as to meaning. It is unclear what would be the nature and extent of the evidence relied on to support a defence of this kind. I have no adequate basis on which to find that the preliminary issue trial for which the defendants contend would be likely to yield a significant saving, if they were to succeed.

CONCLUSIONS

[58]It is clearly just and convenient to direct a preliminary trial of meaning and defamatory tendency. Such a trial would be short, and relatively inexpensive. It would stand a reasonable chance of bringing an end to the proceedings. Failing that, it would at least narrow the issues. By contrast, it would not be just or convenient to direct a preliminary trial of the other issues. For all the reasons given above, in the circumstances of this case the balance is quite firmly tilted against such an order.

Cited in 5 later judgments