Spicer v Commissioner of Police for the Metropolis [2021] EWHC 1099 (QB)

“And the evidence suggests that they drove at that speed and in that way, not because they had to, but because they chose to, because they were showing off to one another, because they were competing with one another in those high performance cars and effectively raced it, each tacitly encouraging the other to drive in a reckless and dangerous way … All the evidence, members of the jury, clearly suggests, in my submission, that on 31 March … Mr Reza was not driving dangerously because he had no choice, he drove dangerously because he liked to speed and he thought he could maintain full control of his vehicle because he was racing with Mr Spicer and showing off; ‘My BMW is better than your BMW’ … If you conclude that Spicer was driving dangerously that night, you then have to go on to consider whether his driving caused or contributed to the collision that subsequently occurred. Now the prosecution case, on this point, as I have said, is that Mr Spicer and Mr Reza were competing with each other and thereby encouraging one another to drive at excessive and dangerous speeds. And if you conclude that Mr Spicer intentionally encouraged Mr Reza to put his foot down and that as a result Mr Reza did so and drove dangerously and thereby causing collision, then it follows, as a matter of common sense, that Mr Spicer also bears some responsibility for it …”

“Turning now to the case against Mr Spicer. You will, of course, appreciate that he is in a different position to Mr Reza in that his vehicle was not in collision with the victim and, indeed, emerged from this incident entirely unscathed. The way in which the prosecution put the case against him is that he was driving at a grossly excessive speed and that he was, in effect, racing with Mr Reza and was thereby encouraging Mr Reza to drive at the same or a similar speed which in turn was a contributory cause of the accident. If you are sure so far as Mr Spicer was concerned that that was the case he would in law be equally responsible for the fatal collision provided that you are sure that the manner of his driving was dangerous as per the definition at paragraph 7 above, and that: (a) he intended to encourage Mr Reza and did encourage him to drive dangerously and (b) his actions thereby contributed to the cause of the collision.”

“Two guilty of killing a woman while racing their cars News Jan 26,2017 17:21 GMT [Picture Hina Shamim] [1] Two men who raced their high performance cars along astreet in Kingston, leading to the death of a young woman,have been found guilty by a jury. [2] Farid Reza, 36 (3.04.80) of Surbiton Road, Kingston was convicted at the Old Bailey today, Thursday, 26 January, of causing death by dangerous driving and also causing serious injury by dangerous driving after a young boy inside his car suffered multiple fractures. [3] He was sentenced to five years and three months for causing death by dangerous driving and three years imprisonment for causing serious injury by dangerous driving, to run concurrently. He was also disqualified from driving for five years, will be required to take an extended retest and must pay a victim surcharge of £120. [4] William Spicer, 28 (6.06.88) of Somervell, Harrow, was found not guilty of those two offences but guilty of careless driving. [5] He was given nine penalty points on his licence, a £1,000 fine and ordered to pay £500 costs. [6] Hina Shamim, 21, was killed instantly when she was struck by a BMW – driven by Reza who had five children in the car with him – as she crossed Penrhyn Road on 31 March 2015. [7] Detective Sergeant Jeff Edwards, from the Met's Roadsand Transport Policing Command, said: "Reza and Spicer were essentially showing off,racing each other to see who had the fastest car. [8] "Miss Shamim didn't stand a chance; at thespeed Reza was travelling it was impossible forhim to stop in time and avoid the collision. Notonly that but he had five children in his carwhose lives he also put in danger through hisincredibly reckless and needless actions. Onewas badly injured. [9] I would like to commend Miss Shamim’s family for their dignity throughout the trial, undoubtedly an incredibly difficult time for them, as well as the police investigation and prosecution teams for their tireless work to secure these convictions.” [10] The court heard that around 21:00hrs Reza was racinghis white convertible BMW M3 against a dark grey BMW330d, driven by Spicer who had three friends with him.They drove from the area of Kingston town centre towardsSurbiton, reaching speeds of almost 70mph in a 30mph zoneas they came into Penrhyn Road. [11] Miss Shamim, a student studying sport science at Kingston University, was crossing the road as she made her way to the campus library. [12] She was hit at speed by Reza’s car. [13] The vehicle then crashed into a bus before spinning and stopping on the pavement. [14] Witnesses heard crying and saw Reza trying to get young children out of the car. Miss Shamim was lying motionless on the pavement beside the vehicle. [15] Spicer continued past the collision and made an illegal right-hand turn into Surbiton Road. [16] Police were called and commenced CPR but Miss Shamim died at 21:43hrs. [17] They identified that five children – aged four, four, eight, 12 and 16 – had been in Reza’s car. The 16-year old was still trapped and had to be cut out of the vehicle by the London fire brigade. [18] The children were taken by ambulance to St George’s Hospital with shock and cuts and bruises. Following a scan, one of the four-year olds was found to have fractures to his skull, jawbone, collarbone and a bone in his face. He has since recovered. [19] A post-mortem examination of Miss Shamim found she died from multiple injuries, including fractures to her arms, left leg and pelvis and a brain injury. [20] Examination of Reza’s car found no child seats and only two seatbelts in the back of the vehicle, meaning at least two of the children were unrestrained. [21] Collision investigators estimated both vehicles were travelling at around 62 or 63 mph at the time of the collision. Had Reza been travelling within the 30mph speed limit, officers found he would have stopped in time upon seeing Miss Shamim in the road ahead. [22] Reza was arrested on 1 April 2015. Following furtherenquiries officers arrested Spicer the next day. [23] Reza and Spicer, who were not friends but knew eachother locally, were subsequently charged. [24] At the conclusion of sentencing the trial Judge HHJ Marks commended the Forensic Collision Investigator PC Simon Palmer saying ‘his evidence was central to the case and was presented and delivered in a thoroughly professional manner.’ [25] In an impact statement, Hina's father Shamim Khan said: ‘On the day Hina died, a part of me died with her. Her death has left a void in my life that can never be filled. [26] ‘Hina was my eldest child. I was in my mid-40s when Hina was born and I had waited so long to become a father so the day of her birth was the happiest day of my life. For every parent, their child is precious. In my case, Hina was my life. [27] ‘In our culture, people tend to favour sons over daughters but for me, Hina was everything. Hina was a delightful child who grew up to become a compassionate and selfless woman, always placing the wishes and needs of others before her own. She loved her family and her family loved her. She had so much to live for. [28] ‘Hina had diligently pursued her studies at Kingston University. Had she not been killed she would have graduated in three months and we as proud parents would have attended her graduation. Not long before her death she was invited to attend an interview for a specialist nutritionist food company. The start of such a promising career or so we thought. She also had ambitions to continue studying for her Masters degree such was her passion. [29] ‘My wife and I had nurtured so many dreams for Hina's life but sadly none of these will ever be fulfilled. She was robbed of her life and we have been robbed of a daughter and, my sons, a sister. [30] ‘My wife and I take each day as it comes without respite from the heartache of losing Hina. Not a day has passed without my wife crying. The upset has caused her eyesight to suffer and she has been diagnosed with glaucoma. She is truly heartbroken. [31] ‘No parent should outlive their child. I remember her as a newborn baby; now our last memory of Hina is seeing her inside a coffin at our local mosque. [32] ‘I had to break the news of Hina's death to her already ill grandmother in Pakistan. As soon as she heard the news she went into shock and as a result is completely bedridden. I now live mostly outside the UK in order to look after my mother. [33] ‘Our local community was also deeply affected by what had happened. At the funeral we estimated 4,000 to 5,000 mourners came to pay their respects. Their love and support has been truly wonderful. [34] ‘A 'Just Giving' page was set up in Hina's memory. The funds raised, approximately £24,500, enabled a mosque to be built in an impoverished area in Pakistan. Further to that, in the Philippines a house was built for a poor family and 11 water wells were constructed for affected areas as well as community income generating projects set up. A separate charity was also set up in Hina's memory. This raised £4,500 and was spent constructing a large water well, supplying water to an African village. These donations did not come from the UK alone but from overseas, as news of Hina's death and the circumstances surrounding it became known, such was the impact. [35] ‘Although Hina is buried we as a family have not yet been allowed to mourn properly due to the ongoing court case. Both men charged with causing Hina's death had an opportunity to own up to their terrible lack of judgement and to apologise to us openly and honestly. In time I'm sure that we as a family could have found peace in that. Instead we have endured lies and false sentiment. Mr Reza shed tears during his evidence but they weren't tears for Hina or for his family but more for his predicament, we are no fools. Mr Spicer started so humbly only for his true arrogant character to surface. Not only was he disrespectful to the barristers but to us as a family. Suffice to say all the lies have compounded and prolonged our grief. I ask them, what gives you the right to put so many people's lives in danger by your dangerous driving, such unbelievable arrogance. [36] ‘Each day, I wake up hoping that it was a bad dream but sadly, that will never be the case. I am hopeful that with the passage of time, my sons will come to terms with the loss of their sister but for my wife and I, feel that our lives will forever remain desolate.’”

“3. Although, it appears, the Article on the Metropolitan Police Service website received 2,642 views, it was published simultaneously on its Twitter account, which shared a platform with the website, enabling whatever was published on the website to be sent directly to the Twitter account … Paragraph 10 of Ms Wickers’ statement [she works for the press office and gave evidence: see below] also shows that, simultaneously with the Article being published on the website, there was some type of automatic feed by email to a number of media contact groups. The Metropolitan Police Service has also disclosed a log of 21st April 2017, which states that the email had been opened 468 times by 200 unique people, 19 of them having clicked a link … While Ms Wickers will say that the Article and the tweet were removed on 26th April 2017, there is clear evidence that the tweet of the Article can be seen online … In any event, the retention of the Article online for a period of 3 months by the Metropolitan Police Service, which must be regarded as the most authoritative reporter of the matters referred to in the Article, was capable of causing the most serious harm to Mr Spicer. It also received very wide publication by other media, as Mr Spicer evidences.”

“William Spicer and Farid Reza have been found guilty by a jury of unlawfully killing a young woman pedestrian, Hina Shamim, at about 9pm on 31st March 2015 while recklessly racing their high performance BMWs against each other at more than 60 mph in a 30 mph zone in Kingston town centre. Spicer also failed to stop and illegally drove on. He was later found by the Police, charged and arrested.”

“This has been the trial of the issue of meaning, as a preliminary issue in the action. The main issue for resolution, putting it broadly, is whether the headline encapsulates or reflects the natural and ordinary meaning of the article, read as a whole. Put another way, does the article mean that the claimant was one of two found ‘guilty of killing a woman while racing their cars’ ? The answer is that it does not. Established legal principle holds that the meaning of a published article or statement must be collected from the article or statement as a whole. The law does not permit a claimant to sue for damages in respect of a headline, however defamatory, if the headline and article are mismatched, and the impact of the headline is contradicted or neutralised by the remainder of the article. That is this case.”

“(1) At common law, a statement is defamatory of the claimant if, but only if, (a) it imputes conduct which would tend to lower the claimant in the estimation of right-thinking people generally, and (b) the imputation crosses the common law threshold of seriousness, which is that it ‘[substantially] affects in an adverse manner the attitude of other people towards him or has a tendency so to do": Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB) [2011] 1 WLR 1985 [96] (Tugendhat J). (2) ‘Although the word 'affects' in this formulation might suggest otherwise, it is not necessary to establish that the attitude of any individual person towards the claimant has in fact been adversely affected to a substantial extent, or at all. It is only necessary to prove that the meaning conveyed by the words has a tendency to cause such a consequence’: Lachaux v Independent Print Limited [2015] EWHC 2242 (QB) [2016] QB 402 [15(5)].”

“[If] in one part of the publication something disreputable to the plaintiff is stated, but that is removed by the conclusion, the bane and the antidote must be taken together.”

“Headlines commonly feature in bane and antidote arguments. Experience shows that there is quite often a disconnect between a headline and the body of an article. One reason for that may be that many headlines are written by editors or sub-editors, who aim for something eye-catching and may be less familiar with the nuance of the text than its author(s). A headline can create a libel, even if the text contains none: see Gatley on Libel and Slander 12th ed para 3.30, text to n 349. That is especially so, when one bears in mind the (reasonable) tendency of ordinary readers to give weight to that which is most prominent, and most negative. But there are cases in which the text neutralises what would otherwise be a libel in the headline - the headline being the poison, to which the body of the article provides the antidote.”

“I accept that the article, read fairly, spells out what happened in a logical and chronological sequence. In my judgment, the defendant’s meaning underplays what the article suggests about racing. The article would leave the reasonable reader in no doubt that the claimant was a participant in a hazardous road race at speeds over twice the legal limit, and that he did so to show off. Both matters are presented as fact: see the headline, paragraphs [1] and [7]. This is bolstered by the reported allegations in paragraphs [10] and [21], which are tantamount to direct allegations, given the absence of any balancing or contrary assertions. I do not agree with Mr de Wilde that the sting of those paragraphs is effectively neutralised by the report of the claimant’s acquittal of dangerous driving. The ‘racing’ allegation (as Mr de Wilde has labelled it) is thus at Chase level one, not Chase level two. The article clearly suggests that the claimant failed to stop but drove past the scene of the accident and away. Finally, I accept the modification of the claimant’s meaning advanced by Mr Sterling. A Chase level two imputation, of reasonable grounds to suspect guilt of causing death and serious injury by dangerous driving, is clearly implicit in the report of the claimant’s arrest, charge, and acquittal.”

“39. The Claimant (1) took part with an acquaintance, Farid Reza, in a car race in the streets of Kingston upon Thames, in which they showed off by driving their highperformance cars at speeds of almost 70mph along public roads in an urban area at around 9pm, to see who had the fastest car; (2) did so with three friends in his car; (3) when Mr Reza's car struck and killed a pedestrian, Hina Shamim, failed to stop but drove past the accident and away from the scene; (4) was for those reasons reasonably suspected of being jointly responsible with Mr Reza for causing the death of Hina Shamim, and of causing serious injury to a young boy who was one of Mr Reza's passengers, by dangerous driving; (5) was arrested for, charged with, tried for and acquitted of those offences (Reza being convicted of both); but (6) was guilty and convicted of careless driving.”

“She was in her silver Vauxhall Corsa with her 8-year-old daughter driving in the direction of Surbiton. Her attention was drawn to two other vehicles. It is clear, you may think, from the video evidence that initially she was in front of both of the BMWs but in the stretch of road between the roundabout and The [Bittoms] lights that she was overtaken by both of the defendant's vehicles. In fact, she said that she deliberately slowed down in order to allow Mr Spicer's darker vehicle to overtake her, on account of the fact that she said that it was being driven aggressively and was very close behind her, and as she put it, he was the sort of driver that she ordinarily tried to avoid. Further up the road, she saw the light-coloured vehicle, that driven by Mr Reza, spinning out of control and going onto the opposite side of the road and into the oncoming bus at which point she saw Mr Spicer's dark car as it were undertaking Mr Reza's white vehicle and continuing along the main road. And she responsibly stopped and spoke to a police officer at the scene.”

“24. When approaching The Bittoms traffic lights, I recall Luka commenting on Mr Reza’s car, something along the lines of ‘that’s a nice car. Is the car we are in faster than that car ?’ I responded to Luka stating, ‘That car’s faster’, which I knew to be true as I know a little bit about cars. I recall saying something along the lines of ‘I wouldn’t have a chance with that car’, which I knew to be true [because] on paper Mr Reza’s car was faster. This was my thought process as an M badge was a much higher spec than my vehicle. We were talking about other things as well, like the food we were going to be getting as we were all hungry, it was just general conversation between us.” 46.At [26] he said: “26. It was an unfortunate coincidence that we were both fast drivers and were travelling along the same stretch of road at the same time. If I hadn’t been there, I whole heartedly believe Mr Reza would have driven in the same way. This was supported by live witness evidence in the criminal trial, with one witness saying that Mr Reza typically drove like he was on a ‘racing circuit’ in that area, the same witness also stating ‘He was an accident waiting to happen, the man was going to kill somebody someday.’”

“I was shocked on subsequently learning the speeds I had been travelling at various points during the incident journey. However, I didn’t notice the speed as being any different to my usual driving style. It was established at the trial from the telematics data analysed that there were 15 harsh driving events over the 24-hour period and 12 of those took place before the incident journey which was part of the evidence of Raymond Ford. I appreciate this is not acceptable behaviour and I don’t condone that driving style. I have made great efforts to be more aware of my speed now.”

“39. I believe I was at a safe distance away from Mr Reza’s car at all times. I did not react to the collision because it happened very quickly and I did not have to do anything to avoid it, I merely continued onwards as I was doing before he veered off to the right hand side of the road. If I had been racing Mr Reza I would have been much closer to him and been required to brake harshly, perhaps even being involved in the collision myself. The evidence of Mr Ford supports my recollection as there was no telematics data suggesting a harsh braking event at this point rather was after the incident. 40. It all happened very quickly but I recall seeing Mr Reza’s car collide with the left-hand side of the doubledecker bus, spin to the right in the air, all four wheels were off the ground, and then before coming to a stop it spun around on the pavement. I did not realise that Mr Reza had knocked a person down. I did not see Ms Shamim which I now know was because she stepped out from behind another car on the right-hand side of the road, behind an overtaking bus, my view was obstructed by Mr Reza’s car”

“There was (sic) kids screaming everywhere and then I saw the owner of the vehicle running towards his kids from another direction. I know he was the owner because I have seen that car before and he owns the computer shop on Surbiton Road” and in his Part 18 replies of 29 September 2020 he had said: “Prior to the accident, the Claimant had seen Mr Reza facially on no more than 3 occasions. He had also seen the white BMW M3 registration no. YH61 WOD on about 5 occasions as it was regularly parked outside the University. On none of these occasions did he associate Mr Reza with the white BMW or the white BMW with Mr Reza. Further, prior to the accident the Claimant did not know that Mr Reza worked at the computer shop. Nor did he know who drove the white BMW, even by sight.”

“You've had 2,642 views since the beginning of the story. Your email has been opened 468 times by 200 unique people, 19 of them have clicked a link. Your top three sources were Mynewsdesk, Twitter and Facebook. 1,472 views on mobile.”

“In Diagram 4(b) I have illustrated the speed profile and engine rpm profile for the duration of this High G event. It is important to note that at no time was the vehicle brought to a stop or pulled over despite the incident occurring in front of the driver (Claimant); the other party who hit the victim (Reza) was approximately 20m ahead of Claimant throughout the time whilst on Penrhyn Road (from CCTV), and struck the pedestrian at approximately 70mph, before subsequently crashing into an oncoming bus. As can be seen from the speed profile even though Claimant’s vehicle has continued to accelerate throughout the period on Penrhyn Road he did not make up any ground to the Reza BMW vehicle preceding him, thus Reza’s speed must have been increasing similarly to maintain distance separation from Claimant.”

“Diagram 4(c) illustrating the speed line shown previously in 4(b) but with additional comments to explain key points in this data capture. Note the first harsh acceleration point 12 seconds before High G then the harsh braking event discussed below post incident around 6 seconds later. This braking allowed the illegal right turn into Surbiton Road where the Claimant later parked his vehicle behind domestic buildings in a car parking area.”

“8.4 In summary from the above High G data capture plus CCTV captured at various points along the journey … (a) It can be assumed that the Claimant knew the locality well (he was a student at the University), (b) he knew the speed limits and the change in carriageway width from two lanes to a single lane southbound along Penrhyn Road (driven this route many times) (c) he was following the Reza vehicle continuously once he was overtaken at the roundabout by Reza (from CCTV) (d) it was his decision to drive in the manner he did to attempt to either catch or overtake the Reza vehicle (speed data) (e) he triggered harsh acceleration when overtaking the other road user immediately prior to Penrhyn Road narrowing (f) he made no attempt to stop or pull over at the locality of the incident even though it happened immediately in front of him and was compelled to brake vigorously (speed data and accelerometer trace) (f) he was aware of the magnitude of the speeding (g) he carried out an illegal right turn to then find a parking location a short distance away from the scene. It will be a matter for the court to ascertain the reasons for this behaviour.”

“10.10 In summary by plotting all the trips from 16:37:08 onwards up until 00:49:51 I have illustrated every harsh event including High G events except one that was triggered at 01:01:37 on the morning of the 31st March 2015. It is apparent that the Claimant can drive the vehicle without triggering any harsh events if he chooses to do so, as illustrated in journeys taken after the index journey. However, for reasons known only to the Claimant he appears to have driven the vehicle in an aggressive or inappropriate manner immediately prior to and during the index journey. It is very clear that the Claimant has issues with driving within the road speed limits on occasions and where or when he feels like it has no issue with driving at speeds in excess of double the official limit. The Claimant clearly knows the University Campus, uses the surrounding roads regularly and therefore would have known the Penrhyn Road layout and speed limits on the day of the incident. It will be a matter for the court to ascertain why the Claimant chose to drive like he did on this day and specifically why was the driving so different for the preceding and index journey.”

“In summary from the above High G data capture plus CCTV captured at various points along the journey (see exhibit 2015 170 STP2) is that (a) It can be assumed that the Claimant knew the locality well (he was a student at the University), (b) he knew the speed limits and the change in carriageway width from two lanes to a single lane southbound along Penrhyn Road (driven this route many times) (c) he was following the Reza vehicle continuously once he was overtaken at the roundabout by Reza (from CCTV) (d) it was his decision to drive in the manner he did to attempt to either catch or overtake the Reza vehicle (speed data) (e) he triggered harsh acceleration when overtaking the other road user immediately prior to Penrhyn Road narrowing (f) he made no attempt to stop or pull over at the locality of the incident even though it happened immediately in front of him and was compelled to brake vigorously (speed data and accelerometer trace) (f) he was aware of the magnitude of the speeding (g) he carried out an illegal right turn to then find a parking location a short distance away from the scene. It will be a matter for the court to ascertain the reasons for this behaviour.”

“2.9 We agree that from the point Reza overtook Spicer on the College Roundabout, (prior to Penrhyn Road) then Spicer remained behind Reza at all times until he passed Reza’s crashed vehicle. We also agree that Spicer maintained separation between the vehicles to around 20m or so, whilst on Penrhyn Road single carriageway, up to the point where the incident occurred, at which point separation would have reduced as Reza’s vehicle rapidly lost velocity. 2.10 At the locale and time where the incident occurred, the Telematics data shows that Spicer’s vehicle rapidly lost speed (from 67 or 69 mph to 43 mph in about 2 seconds). This triggered a ‘High G’ record; there was no actual vehicle contact at any time during the incident. The only explanation for the identified speed loss was that the vehicle braked hard. Deceleration was calculated as 0.5G during this 2-second period; the threshold for raising a ‘Harsh Braking’ record is 0.267G. The advent of the ‘High G” event prevented a harsh braking event being recorded by the Telematics at this juncture.”

“Dixon disagrees with summary statement in Ford’s report 13:12: ‘I have shown by comparison with CCTV captures and the telematics data that the Claimant did willingly and knowingly follow another vehicle along a public road in a manner that would suggest to the other driver that he was either trying to catch up with him or maintain a defined separation between the two vehicles, no matter what speed the leading driver drove at.’ Dixon believes that Spicer did travel behind the leading vehicle, he did maintain a steady separation distance of approximately 20 meters, even when speeding, but this behaviour would not have indicated anything to the driver in front (if noticed at all). Ford stands by his conclusion …”

“The claimant (1) took part with an acquaintance, Farid Reza, in a car race in the streets of Kingston upon Thames, in which they showed off by driving their highperformance cars at speeds of almost 70mph along public roads in an urban area at around 9pm, to see who had the fastest car; (2) did so with three friends in his car, (3) when Mr Reza’s car struck and killed a pedestrian, Hina Shamim, failed to stop but drove past the accident and away from the scene …”

“21(2) The existence and scale of any harm to reputation may be established by evidence or inferred. Often, the process is one of inference, but evidence that tends to show that as a matter of fact a person was shunned, avoided, or taunted will be relevant. So may evidence that a person was treated as well or better by others after the libel than before it. … 21(5) A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages …”

“The burden of proving justification rests on the defendant. Although the standard of proof is the balance of probabilities, the more improbable an allegation the stronger must be the evidence that it did occur before, on the balance of probabilities, its occurrence will be established.”

“(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true. (2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations. (3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant’s reputation. (4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed.”

“13. This section replaces the common law defence of justification with a new statutory defence of truth. The section is intended broadly to reflect the current law while simplifying and clarifying certain elements. 14. Subsection (1) provides for the new defence to apply where the defendant can show that the imputation conveyed by the statement complained of is substantially true. This subsection reflects the current law as established in the case of Chase v News Group Newspapers Ltd [[2002] EWCA Civ 1772, [34]], where the Court of Appeal indicated that in order for the defence of justification to be available “the defendant does not have to prove that every word he or she published was true. He or she has to establish the ‘essential’ or ‘substantial’ truth of the sting of the libel”. 15. There is a long-standing common law rule that it is no defence to an action for defamation for the defendant to prove that he or she was only repeating what someone else had said (known as the “repetition rule”). Subsection (1) focuses on the imputation conveyed by the statement in order to incorporate this rule. 16. In any case where the defence of truth is raised, there will be two issues: i) what imputation (or imputations) are actually conveyed by the statement; and ii) whether the imputation (or imputations) conveyed are substantially true. The defence will apply where the imputation is one of fact.”

“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 Ms 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 unit which was soon to be joined by the child they were expecting.”

“34. … [T]he couple met in 2006 and had an intermittent relationship for the next four 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 also 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.”

“17. In my judgment, therefore, the Judge's unappealed ruling on meaning does not close off MGN's submissions on the strike-out decision. The meaning having been found, it remains open to MGN to raise arguments as to the intensity of the libel's sting. I accept, of course, that in some instances the meaning of words and their defamatory sting (and its intensity) ineluctably go together; but not always. Just as in some areas of life there are different views among reasonable people of moral and immoral conduct, so there may be different views as to the gravity or otherwise of the sting of a libel. … 19. The ascertained meaning here refers to a committed family relationship unqualified by references to ‘stable’ and ‘secure’. The essence of the sting surely consists in the assertion of a selfish disruption of that committed family relationship with father, mother, child and another child to come. As Eady J said in Turcu [2005] EWHC 799 (QB) at [105], ‘[i]t becomes important… to isolate the essential core of the libel and not to be distracted by inaccuracies around the edge – however extensive’. 20. In my judgment the extent to which the factors of cohabitation and Ms Ward's career go to this essential sting are matters upon which reasonable people might disagree. It is therefore to be ascertained by the fact-finding tribunal at trial, and not to be determined at an interlocutory hearing on the pleadings. The meaning of the published words does not, in the circumstances here, drive the conclusion as to the intensity of the sting. I would accept Mr Wolanski's submissions both as regards the cohabitation issue and Ms Ward's legal career.” cohabitation issue and Ms Ward's legal career.”

“103. My own conclusion is quite clear. The Claimant was willing to participate in criminal activities and to make a contribution, in particular, to the discussions about the proposed Beckham kidnap. I believe that most reasonable onlookers would think that sufficient to support the sting of the libel. The allegations against the Claimant are therefore substantially, if not wholly, accurate. 104. There may be a good deal of sloppiness and inaccuracy in what was published. There was no plot to kidnap the Beckham children as such. Gashi managed to extract comments to the effect that they would be kidnapped if they happened to be with their mother – but that was as far as it went. Nor could the gang be said to be ‘on the brink’ of the kidnap. Nor was there any evidence that the Beckhams' Cheshire home was being kept under surveillance. The Claimant was not allotted a surveillance role; nor had he done or said anything to support the allegation – at least anything which the News of the World journalists knew about. There was nothing to justify the assertion that he was in charge of surveillance. The only conclusion I can draw is that it was a bit of creativity on the part of Mr Mahmood or one of the sub-editors. 105. Nevertheless, the Claimant's willingness to participate in apparently genuine discussions about kidnapping Victoria Beckham, the timing of the operation, and the feasibility of obtaining several million pounds at short notice is said to be enough to establish that the sting of the libel is substantially true. It becomes important in such a case to isolate the essential core of the libel and not to be distracted by inaccuracies around the edge – however extensive.”

“18. Where the meaning of the Article has already been determined by Warby J, what is the nature of the exercise that the Court must undertake in assessing the defence of substantial truth? D submits that the Court’s task is to ascertain the ‘sting’ of the libel, and to determine whether the facts which have been admitted or proved would, in the view of most reasonable onlookers, be sufficient to support the sting. This is an objective test and its formulation by Eady J, a very experienced Judge and former specialist practitioner, clearly reflects the importance of objective standards (imposed in relation to meaning by reference to ‘the ordinary reasonable reader’) in this area of the law. … 20. What is the core of the libel here, the sting, as regards C? At the heart of the way in which the meaning would lower C in the estimation of right-thinking people generally is not the discrete issue of the alleged race, but of C’s dangerous and irresponsible conduct before, during, and after a collision in which a young woman was killed. 21. While the meaning identified by Warby J has provided a clear and useful structure for the development of the litigation and the evidence at trial, the need to assess the sting of the libel points away from adhering too closely to each individual element …” each individual element …”

“Logically anterior, therefore, to the question of whether the words are capable of being defamatory in law 132 is the question of what meaning or meanings the words are reasonably capable of bearing.133” reasonably capable of bearing.133”

“Of course it is not necessarily the case that both issues are in dispute and if they are they may be run together, but they are analytically different: Arab News Network v Jihad al Khazen [2001] EWCA Civ 118 at [11]. In Simpson v MGN [2016] EWCA Civ 772; [2016] E.M.L.R. 26, Laws LJ stated that ‘The meaning having been found, it remains open to [the defendant] to raise arguments as to the intensity of the sting’ (at [17]). Read at one level, this would seem to imply that ‘meaning’ and ‘sting’ are different concepts. It is true, as the judge recognised, that the meaning that is arrived at may not be defamatory (at [14]) but, to the extent that he was suggesting that meaning and sting (or imputation) are different concepts, it is argued that this is wrong in principle and contrary to authority. In an action for defamation, the judge must determine the meaning of the words according to the principles set out in [Jeynes v News Magazines Ltd [2008] EWCA Civ 130, [14]]. The outcome of that process is the ‘meaning’, ‘sting’ or ‘imputation’ and that then governs the rest of the action. Thus, the judge must decide whether the words in the meaning they have been found to bear are defamatory. So too, if truth is in issue, as it was in Simpson, the judge must decide whether the words are substantially true in the meaning, sting or imputation that they have been found to bear. There is in this respect no difference between meaning, sting and imputation. An alternative, and it is suggested better, reading of Laws LJ’s judgment, is to say that he was concerned with the question whether every element of the defamatory meaning must be shown to be true in order for the whole to be found to be substantially true under Defamation Act 2013, s.2, only requires that the imputation conveyed by the words (or the meaning or sting of the words) is substantially true. The imputation does not have to be wholly true and it is open to the court to conclude that the defence is made out notwithstanding that elements of it are not true ...”

“If the gist of the libel can be proved, then there is no need also to prove peripheral facts that do not add to the sting of the charge or introduce any matter that is separately actionable: ‘it is sufficient if the substance of the libellous statement be justified … as much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified.’54”

“Edwards v Bell (1824) 1 Bing. 403 at 409 per Burrough J. See also Clarke v Taylor (1836) 3 Scott 95; Morison v Harmer (1837) 4 Scott 524; Walker v Brogden (1865) 19 CB (NS) 65 (second plea); Rofe v Smith’s Newspapers Ltd (1924) 25 NSWSR 4 at 23; Sutherland v Stopes [1925] AC 49; Hoare v Jessop [1965] EA at 227; Aaron v Cheong Yip Seng [1996] 1 SLR 623Sing CA. In Berezovsky v Forbes Inc. (No.2) [2001] EWCA Civ 1251; [2001] EMLR 45 at [12], the Court of Appeal affirmed that the requirement to prove the sting of a libel was not a disproportionate restriction of the art.10 right to freedom of expression. An apparent distinction was drawn by Laws LJ in Simpson v Mirror Group Newspapers Ltd [2016] EWCA Civ 772; [2016] EMLR 26 between the meaning that the words have been determined to bear and the sting of those words, which may, but will not necessarily, be the same. The decision shows that a determination of meaning does not prevent a defendant from submitting, in support of a plea of truth, that he can justify the essential sting, even if his plea does not reach every aspect of the meaning that has been found.”

“At common law, the word ‘imputation’ was used interchangeably with terms such as ‘sting’ and ‘charge’ to represent the defamatory meaning (allegation) conveyed by the material complained of.1 It has the same meaning here. Once the court has determined the single meaning of a statement, applying the principles identified in Chapter 5 above, it is that meaning (imputation) which the defendant must prove to be substantially true.2”

“See Bokova v Associated Newspapers Ltd [2019] QB 861 at [37]-[43]. In Simpson v MGN Ltd [2016] EMLR at [14]-[17] Laws LJ purported to draw a distinction between the single meaning of a statement and its ‘sting’. It is submitted that this is incorrect. Simpson is better explained as a case concerning whether proof of the pleaded facts would be sufficient to demonstrate that the statement, in the meaning the court had determined, was substantially true. At common law it was permissible to seek to justify – prove the truth of a defamatory comment (expression of opinion): see Sutherland v Stopes [1925] AC 47. Presumably this will remain the case.”

“37(i) The only relevant and permissible route open to a defendant who wishes to advance a defence of truth following a determination of actual meaning is to plead, if it can, that it will prove the imputation(s) substantially true. If it is unable or unwilling to prove true one or more imputations, then it should identify those which it does not contend are true. … 38. There was some suggestion in argument by Mr Caldecott that variance between the actual meanings and pleaded Lucas-Box meanings was legitimate in order to encapsulate the sting of what the defendant sought to prove true in accordance with the principle in Simpson v MGN Ltd [2016] EMLR 26 … 39. I reject that submission. If the principle in Simpson’s case adds anything to the concept of proving the substantial truth of an imputation, then it operates at the point the court comes to consider whether, on the evidence, the defence of truth succeeds. At one point, I feared the spectre looming that, having determined meaning, the court would then have to go on and interpret that meaning to divine the ‘sting’: a sort of linguistic Russian doll: a sting, inside an imputation, borne of a meaning, arising from a publication. However, Mr Caldecott disavowed that he was advocating such a course. 40. Since it was decided, Simpson’s case has not benefitted from any application in practice. For my part, I am doubtful that it extends much beyond the established principle that it is sufficient to prove the substantial truth of a defamatory imputation. In argument, I tried to think of a case in which Simpson’s case might have application. I came up with a meaning: ‘the claimant, a care worker in a hospice, had stolen thousands of pounds from residents.’ What is the sting of that meaning? That the claimant stole money? In breach of trust? From vulnerable people? Would proof that he had stolen money from co-workers and visitors be sufficient? If not, would proof also of a theft from one resident make the difference? This example seems to me to demonstrate that the search for a sting quickly collapses into the question of whether proof of the various elements contained in the meaning is sufficient for the court to be satisfied that the allegation was substantially true. Plainly, it will be a highly fact-sensitive exercise. 41. Whatever the answer to this interesting point, it does not arise on the facts of this case …”

“If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.”

“22. The judge said that this was one of those cases where the defence of justification depended upon establishing at least “reasonable grounds to suspect” the claimant (of involvement in terrorist activity). After referring to Lewis v Daily Telegraph [1964] AC 235, Evans v Granada Television [1996] EMLR 429, Stern v Piper [1997] QB 123, Shah v Standard Chartered Bank [1999] QB 241, Bennett v News Group Newspapers [2002] EMLR 39 and Chase v News Group Newspapers [2003] EMLR 11, the judge accepted counsel's formulation of the following principles: (1) There is a rule of general application in defamation (dubbed the “repetition rule” by Hirst LJ in Shah) whereby a defendant who has repeated an allegation of a defamatory nature about the claimant can only succeed in justifying it by proving the truth of the underlying allegation—not merely the fact that the allegation has been made; (2) More specifically, where the nature of the plea is one of “reasonable grounds to suspect”, it is necessary to plead (and ultimately prove) the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged; (3) It is impermissible to plead as a primary fact the proposition that some person or persons (eg law enforcement authorities) announced, suspected or believed the claimant to be guilty; (4) A defendant may (for example, in reliance upon the Civil Evidence Act 1995) adduce hearsay evidence to establish a primary fact - but this in no way undermines the rule that the statements (still less beliefs) of any individual cannot themselves serve as primary facts; (5) Generally, it is necessary to plead allegations of fact tending to show that it was some conduct on the claimant's part that gave rise to the grounds of suspicion (the socalled “conduct rule”). (6) It was held by this court in Chase at paras [50]–[51] that this is not an absolute rule, and that for example “strong circumstantial evidence” can itself contribute to reasonable grounds for suspicion … (7) It is not permitted to rely upon post-publication events in order to establish the existence of reasonable grounds, since (by way of analogy with fair comment) the issue has to be judged as at the time of publication. (8) A defendant may not confine the issue of reasonable grounds to particular facts of his own choosing, since the issue requires to be determined against the overall factual position as it stood at the material time (including any true explanation the claimant may have given for the apparently suspicious circumstances pleaded by the defendant). (9) Unlike the rule applying in fair comment cases, the defendant may rely upon facts subsisting at the time of publication even if he was unaware of them at that time. (10) A defendant may not plead particulars in such a way as to have the effect of transferring the burden to the claimant of having to disprove them.”

“… (iii) Third, the jury's verdict that Mr. Spicer was not guilty of the more serious charges which he faced did not amount to positive ‘factual findings or conclusions’ about the conduct by him which led to the criminal proceedings. It simply meant that his criminal liability was not established (which could have been for a number of reasons, none of which can be known with certainty). This is very different to the situations in Hunter and Amin, which are both cases in which positive findings had been made in relation to evidence by the trial judge, during a voir dire, which the convicted criminal defendant then effectively sought to challenge in civil proceedings. That is far from the situation before me. (iv) Fourth, even if one could infer that the jury had rejected the ‘racing’ and ‘showing off’ allegations, they did that asking themselves if they were ‘sure’ that this had been established, as opposed to applying the civil standard which the libel judge will apply (whether or not the Commissioner has been able to establish a defence ‘on the balance of probabilities’). (v) Fifth, as to the argument that there is a nexus between the Particulars of Truth and the charges faced by Mr. Spicer, the offences with which he was charged were those of causing Ms. Shamin's death by dangerous driving, and causing serious injury to the young boy who was one of Mr Reza's passengers, that only goes so far. HHJ Marks QC's summing up explained that the questions for the jury at the criminal trial were whether Mr. Spicer was guilty of causing death or serious injury by dangerous driving because he was (1) driving at a grossly excessive speed, (2) in effect, racing with Mr Reza, (3) thereby encouraging Mr Reza to drive at the same or similar speed, and that this in turn was a contributory cause of the accident. By contrast, the meaning found by Warby J is not focused on whether or not Mr. Spicer did in fact through his driving encourage Mr Reza so as contribute to the accident and its consequences. Rather, its focus, and the resulting focus of the Commissioner's defence of truth, is on the conduct by Mr. Spicer in driving his car in the short period of time before the accident took place, which then led to him being reasonably suspected of causing death and serious injury by dangerous driving.”

“Q. And as they passed you, I think you said in your statement that they were going too quickly for you to be able to see who was inside, who was driving either vehicle ? A. That’s correct. Q. But as they passed you, what did you think about what might happen? A. I just was shocked and thought, oh my gosh, they are going to crash into something. It was really very fast.”

‘Everyone was asking each other what happened. I did not wanna (sic) sound like I was involved, someone asked me what happened and I said I don’t know and I just left it at that’

“14. - Reports of court proceedings absolutely privileged. (1) A fair and accurate report of proceedings in public before a court to which this section applies, if published contemporaneously with the proceedings, is absolutely privileged. … (3) This section applies to— (a) any court in the United Kingdom.”

“15. - Reports, &c. protected by qualified privilege. (1) The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows. … (3) This section does not apply to the publication to the public, or a section of the public, of matter which is not of public interest and the publication of which is not for the public benefit.”

“2. A fair and accurate report of proceedings in public before a court anywhere in the world.”

“26. There are a number of authorities on what constitutes a fair and accurate report. It need not be a verbatim report. It can be selective and concentrate on one particular aspect as long as it reports fairly and accurately the impression that the reporter would have received as a reasonable spectator in the proceedings: see generally Cook v Alexander [1974] QB 279 and Tsikata v Newspaper Publishing plc [1997] 1 All ER 655 27. However, these appeals are principally concerned with the quality of fairness. Fairness in section 15 has been held to mean fairness in terms of presentation rather than fairness between the speaker and the subject of the statement: see per Lord Denning MR in Cook v Alexander [1974] QB 279, 289. A report does not cease to be fair because there are some slight inaccuracies or omissions: Andrews v Chapman (1853) 3 C & K 286 , 290. It follows that if there is a substantial or material misstatement of fact that is prejudicial to the claimant's reputation, the report will not be privileged. If the report refers to an accusation made on a privileged occasion which is in fact untrue, the defence of fair comment may be available if it is in terms which would be fair if the accusation were well-founded and provided that the comment is made in good faith and without malice: Mangena v Wright [1909] 2 KB 958 , 977. 28. Fairness can also be lost by the presence of extraneous material. This proposition is supported by a memorable passage in the speech of Lord Denning in the Dingle case [1964] AC 371: see para 33 below.”

“… adds its own spice and prints a story to the same effect as the parliamentary paper, and garnishes and embellishes it with circumstantial detail, it goes beyond the privilege and becomes subject to the general law. None of its story on that occasion is privileged. It has ‘put the meat on the bones’ and must answer for the whole joint. If it cannot justify it, it must pay damages: and it cannot diminish these by reference to the privileged reports which it and others may have given previously.”

“69. Once the repetition rule is disapplied, there is no reason why a fair and accurate report entitled to qualified privilege under section 15 should be read as anything more than a statement that the allegations mentioned in the report were made. The report would not of course be entitled to qualified privilege if the writer had adopted the allegations made in the privileged passages or so intermingled them with extraneous material that the privilege was lost.”

“It is plain that there will be no qualified privilege in an account of parliamentary speech if the publisher has so embellished the material that it cannot be said to be a fair and accurate report.”

“(iii) Was reporting privilege in respect of those parts lost by reason of the comments made by The Sunday Times in the remainder of the article ?”

“6. … for the purposes of determining meaning, the parts of the article protected by privilege could not be treated as words complained of. … 12(i). The effect of Curistan is not to remove privileged paragraphs from a publication. Whilst they cannot be relied upon as words complained of, for the purposes of meaning, they remain as context for the non-privileged parts of the publication: Curistan [22(v)(1)] per Arden LJ; [84] per Laws LJ; and [102] per Lord Phillips MR.” [84] per Laws LJ; and [102] per Lord Phillips MR.”

“(viii) The publication must be read as a whole, and any 'bane and antidote' taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic "rogues' gallery" case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (eg, bane and antidote cases).”

“30.8 … where one part of an article is privileged as a report of proceedings in Parliament and another part is not, the meaning of the privileged part was to be determined on a different basis from the meaning of the remainder: so far as the privileged words were concerned, the repetition rule was to be disapplied. In consequence, a reported (privileged) allegation is to be treated as meaning only that the allegation has been made, and as not to bear any connotation that the matter alleged is true.”

“10. The Article consisted of a fair and accurate report of legal proceedings in public brought against the Claimant which was published contemporaneously. Accordingly, the Article was published on an occasion of absolute privilege pursuant to s14 of the Defamation Act 1996. Further or alternatively, the Article was published on an occasion of qualified privilege pursuant to s 15 and Schedule 1 of the Defamation Act 1996.”

“10.1 The Claimant was prosecuted for causing death and serious injury by dangerous driving at the Central Criminal Court in London between 9 January 2017 and 26 January 2017. 10.2 On 26 January the Claimant was found not guilty of the said offences, but was found guilty of careless driving and was given nine penalty points on his licence, a £1,000 fine, and ordered to pay £500 costs. 10.3 To the extent that the words complained of referred to the said criminal proceedings against the Claimant, namely paragraphs 1 to 6, 10 to 21 and 23 of the Article, they constituted a fair and accurate report of the said proceedings which took place in public before a court in the United Kingdom. 10.4 The Article was published contemporaneously with the proceedings, being published on the day of the Claimant's conviction and sentence. 10.5 In the premises, the publication of the said words is protected by absolute privilege pursuant to s 14 of the Defamation Act 1996, further or alternatively by qualified privilege under s 15 and paragraph 2 of Schedule 1 of the Defamation Act 1996.”

“29. The allegations at paragraph 10 are denied. The article was not nor did it consist of a fair and accurate report of the legal proceedings in public, which was published contemporaneously. Further, with regard to the particulars under paragraph 10: (1) Paragraphs 10.1 and 10.2 are admitted. (2) The Claimant denies that paragraphs 1-6, 10-21 and 23 of the Article constituted a fair and accurate report of the said proceedings, which had taken place in public before a Court in the United Kingdom. On the contrary, paragraphs 1, 7, 10 and 15 of the report rendered the report as a report of the proceedings grossly unfair and substantially inaccurate. (3) Further, the Claimant relies upon the meaning of the report as determined at paragraph 39 of the judgment of Warby J in these proceedings on 7th June 2019. (4) Consequently, the report was grossly unfair and substantially inaccurate as it related and meant, which was untrue, that the Claimant had taken part in a car race with an acquaintance, Mr Reza, in which they were showing off by driving their high performance cars to see who had the fastest car, that the Claimant, after Mr Reza’s car had struck and killed a pedestrian, Ms Shamim, had failed to stop but had driven past the accident and away from the scene, and that for these reasons the Claimant was reasonably suspected of being jointly responsible with Mr Reza for causing the death of Ms Shamim and of causing serious injury to a young boy who was one of Mr Reza’s passengers by dangerous driving. (5) Paragraph 10.4 is admitted. (6) Paragraph 10.5 is denied, given that the report was not fair and was not accurate.”

“(7)(a) Paragraph 1 read: ‘Two men who raced their high performance cars along a street in Kingston, leading to the death of a young woman, have been found guilty by a jury.’ This paragraph is grossly unfair and substantially inaccurate in that the Claimant was not racing, his driving did not lead to the death of a young woman and, which is to be implied under paragraph 1, the Claimant was not guilty of killing a woman whilst racing his car against the other driver Mr Reza. (b) Paragraph 7 read: ‘Detective Sergeant Jeff Edwards, from Met’s Roads and Transport Policing Command, said ‘Reza and Spicer were essentially showing off, racing each other to see who had the fastest car.’ This paragraph is grossly unfair and substantially inaccurate in that Mr Spicer was not showing off to Mr Reza, essentially or otherwise, nor was he racing against Mr Reza to see who had the fastest car.’ (c) Paragraph 10 read: ‘The Court heard that around 21:00 hrs Reza was racing his white convertible BMW M3 against a dark grey BMW 330d, driven by Spicer who had three friends with him. They drove from the area of Kingston town centre towards Surbiton, reaching speeds of almost 70mph in a 30mph zone as they came into Penrhyn Road.’ This paragraph is grossly unfair and substantially inaccurate in that the Claimant was not racing against Mr Reza. Nor, which is implied by this paragraph, were they driving together nor had the Claimant reached a speed of almost 70mph on more than one occasion. (d) Paragraph 15 read: ‘Spicer continued past the collision and made an illegal right-hand turn into Surbiton Road.’ This paragraph is grossly unfair and substantially inaccurate because the Claimant, did not, as implied, continue past the collision at speed, failed to stop or make an illegal right-hand turn into Surbiton Road without reason. (e) Further, paragraphs 1, 7, 10 and 15 individually and collectively portray a grossly unfair and inaccurate report of the trial and its outcome and what was heard and said in Court.”

“To claim the benefit of absolute privilege or qualified privilege the Defendant must establish that the report was fair and accurate. The Claimant relies upon paragraph 39 of Warby J’s judgment as the threshold evidentially that the Defendant must establish to have reasonable grounds to suspect the Claimant as having been jointly responsible with Mr Reza for causing the death of Ms Shamim and of causing serious injury to a young boy who was one of Mr Reza’s passengers, by dangerous driving.”

“Suppose that the words amount to a grave allegation against the claimant, but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed. The law's traditional answer is that these matters may mitigate damages but do not affect the defamatory character of the words. Yet it is plain that section 1 was intended to make them part of the test of the defamatory character of the statement.” f. The ‘defamatory character of the statement no longer depends only on the meaning of the words and their inherent tendency to damage the claimant's reputation … But I do not accept that the result is a revolution in the law of defamation’ [17]. g. Subsequent events can ‘be evidence of the likelihood of [serious harm] occurring’ ([18]). h. Warby J's findings on the facts of the case, which the Supreme Court upheld, were ‘based on (a) the scale of the publications; (b) the fact that the statements complained of had come to the attention of at least one identifiable person in the United Kingdom who knew Mr Lachaux and (c) that they were likely to have come to the attention of others who either knew him or would come to know him in future; and (d) the gravity of the statements themselves, according to the meaning attributed to them by Sir David Eady.’ [21]. Also: “Mr Lachaux would have been entitled to produce evidence from those who had read the statements about its impact on them. But I do not accept, any more than the judge did, that his case must necessarily fail for want of such evidence. The judge's finding was based on a combination of the meaning of the words, the situation of Mr Lachaux, the circumstances of publication and the inherent probabilities. There is no reason why inferences of fact as to the seriousness of the harm done to Mr Lachaux's reputation should not be drawn from considerations of this kind. Warby J's task was to evaluate the material before him, and arrive at a conclusion on an issue on which precision will rarely be possible.”

“167. As Lord Sumption explained in Lachaux v Independent Print Ltd [2020] AC 612 at [14], whether a statement has caused serious harm falls to be established ‘by reference to the impact which the statement is shown actually to have had’, and that, in turn, ‘depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’. Further, as appears from [16], in light of wording of section 1(1) of the Defamation Act 2013 (‘A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant’), a statement may not be defamatory even if it amounts to ‘a grave allegation against the claimant’ if (for example) it is ‘published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed’. At the same time, the assessment of harm of a defamatory statement in not simply "a numbers game" (see Mardas v New York Times Co [2009 EMLR 8, Eady J at [15]). Indeed: "Reported cases have shown that very ‘serious harm’ to a reputation can be caused by the publication of a defamatory statement to one person" (Sobrinho v Impresa Publishing SA [2016] EMLR 12, Dingemans J at [47]). 168. Other points which arise from the Sobrinho case include the following: ‘46 …. [F]irst … ‘Serious’ is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious ‘46 …. [F]irst … ‘Serious’ is an ordinary word in common usage. Section 1 requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant's reputation … 47. Secondly, it is open to the claimant to call evidence in support of his case on serious harm and it is open to the defendant to call evidence to demonstrate that no serious harm has occurred or is likely to do so. However, a Court determining the issue of serious harm is, as in all cases, entitled to draw inferences based on the admitted evidence … 48. Thirdly, there are obvious difficulties in getting witnesses to say that they read the words and thought badly of the claimant, compare Ames v The Spamhouse Project [2015] EWHC 127 (QB) at [55]. This is because the claimant will have an understandable desire not to spread the contents of the article complained of by asking persons if they have read it and what they think of the claimant, and because persons who think badly of the claimant are not likely to co-operate in providing evidence.’ 169. In Doyle v Smith [2019] EMLR 15, Warby J cited these passages with approval at [116]. Warby J went on to emphasise the importance of the point about inference, and (among other things) approved at [117] the following words of HHJ Moloney QC in Theedom v Nourish Training (trading as CSP Recruitment) [2016] EMLR 10: ‘Depending on the circumstances of the case, the claimant may be able to satisfy section 1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication.’ 170. Although the Supreme Court stated the law differently from the Court of Appeal in Lachaux v Independent Print Ltd [2018] QB 594, the following passages from the judgment of Davis LJ appear to me to be consonant with the correct legal analysis of section 1 as set out in the judgment of Lord Sumption: “72. … serious reputational harm is capable of being proved by a process of inference from the seriousness of the defamatory meaning … there is no reason in libel cases for precluding or restricting the drawing of an inference of serious reputational harm derived from an (objective) appraisal of the seriousness of the imputation to be gathered from the words used. 73. … The seriousness of the reputational harm is … evaluated having regard to the seriousness of the imputation conveyed by the words used: coupled, where necessary or appropriate, with the context in which the words are used (for example, in a newspaper article or widely accessed blog). … 79. There may, for instance, be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. One example could, for instance, perhaps be where the defendant considers that he has irrefutable evidence that the number of publishees was very limited, that there has been no grapevine percolation and that there is firm evidence that no one thought any the less of the claimant by reason of the publication …”

“8. By reason of the publication of the words complained of the Claimant's reputation has been seriously harmed and he has suffered considerable hurt, distress and embarrassment.”

“Prosecutor Deanna Heer told the court that Reza was behind the wheel of a white BMW which was racing ahead of a dark grey BMW driven by Spicer with three university friends. … In court the pair were accused of ‘encouraging one another to drive in a dangerous manner’ before the crash at 9pm on Penrhyn Road in Kingston. Following the verdict, Ms Shamim's father spoke of the family's grief and devastation. He criticised both drivers' ‘arrogance and said: ‘I ask them, what gives you the right to put lives in danger through your driving. Such unbelievable arrogance.’ Deanna Heer, prosecuting, told the Old Bailey: ‘The prosecution case is that effectively these two defendants were showing off to one another, and thereby encouraging one another to drive in a dangerous manner.’ Spicer, also a Kingston University student, drove past the crash but later stopped and walked back to the scene.”

“A speeding BMW driver has been found guilty of killing a young student who was knocked down as she crossed the road outside her university campus. Farid Reza, 36, and William Spicer, 28, were accused of racing and showing off at more than twice the 30mph speed limit before the crash which killed 21-year-old student Hina Shamim two years ago. They denied causing the death of the Kingston University sports science undergraduate by their dangerous driving. Reza was found guilty of the charge, but Spicer was acquitted, and convicted instead of the lesser offence of careless driving following an Old Bailey trial. … Following the verdict, Ms Shamim's father spoke of the family's grief and devastation. He criticised both drivers' arrogance and said: ‘I ask them, what gives you the right to put lives in danger through your driving. Such unbelievable arrogance.’” ‘I ask them, what gives you the right to put lives in danger through your driving. Such unbelievable arrogance.’”

“Shocking CCTV shows the moment student, 21, was mowed down and killed by show-off BMW driver going TWICE the speed limit as he gets five years for causing her death • Farid Reza and William Spicer were racing at twice the 30mph speed limit • They mowed down student Hina Shamim outside Kingston University • Both denied causing her death by dangerous driving, but Reza was convicted • Spicer was cleared of that charge but found guilty of careless driving Farid Reza, 36, and William Spicer, 28, were showing off at more than twice the 30mph speed limit before the crash that killed 21-year-old student Hina Shamim on March 31, 2015 …”

“Two men who raced their cars at high speeds down a busy road before the death have been found guilty of causing death by dangerous driving and careless driving, respectively. … The court heard that both men had been racing their cars at speeds of nearly 70mph in a 30mph zone.”