1 IN THE HIGH COURT OF JUSTICE Claim No. HQ 14D01588 QUEEN'S BENCH DIVISION 2

3 Royal Courts of Justice 4 Strand, London, WC2A 2LL

5 Wednesday, 23rd July 2014

6 Before: 7 MR. JUSTICE BEAN 8 ---------------

9 BETWEEN:

10 (1) RUTH COOKE (2) MIDLAND HEART LIMITED 11 Claimants

12 - and -

13 (1) MGN LIMITED (2) TRINITY MIRROR MIDLANDS LIMITED 14 Defendants

15 ---------------

16 (Computer-aided transcript of the Shorthand and Stenograph Notes of Marten Walsh Cherer Ltd., 1st Floor, Quality House, 17 6-9 Quality Court, Chancery Lane, London WC2A 1HP. Telephone No: 020 7067 2900. Fax No: 020 7831 6864 18 e-mail: info@martenwalshcherer.com)

19 ---------------

20 MR. HUGH TOMLINSON QC (instructed by Wragge Lawrence Graham & Co LLP) appeared for the Claimants. 21 MR. DAVID PRICE QC (instructed by David Price Solicitors and 22 Advocates) appeared for the Defendants.

23 --------------- PROCEEDINGS 24 ---------------

25

1 MR. TOMLINSON: My Lord, in this matter I appear for the claimants

2 and Mr. Price, Queen's Counsel, appears for the defendants.

3 My Lord, this is the trial of two preliminary issues under

4 section 1 of the Defamation Act 2014. Your Lordship will, I

5 hope, have received skeletons from both parties.

6 MR. JUSTICE BEAN: Yes, I have, thank you.

7 MR. TOMLINSON: And two bundles of documents and two bundles of

8 authorities.

9 MR. JUSTICE BEAN: I have.

10 MR. TOMLINSON: I am grateful. Your Lordship may have noticed in

11 my skeleton I suggest a slight amendment to the second issue.

12 I have discussed this with Mr. Price and we are agreed,

13 subject to the court's views, on a formulation of the second

14 issue which perhaps I can hand up. (Same handed.) My Lord,

15 the original version simply referred to the publications

16 causing or likely to cause serious harm and I wanted to simply

17 reflect the words of section 1(1), so it is the publications

18 of the statement causing serious harm. It is a very small

19 amendment.

20 My Lord, as I say, subject to your Lordship's views that

21 is what the parties ----

22 MR. JUSTICE BEAN: If you and Mr. Price with all your experience

23 are happy with that exam paper, then I am happy too.

24 MR. TOMLINSON: We will consider your Lordship's marks at the end!

25 My Lord, this, as your Lordship knows, is the first

1

1 occasion on which the courts have had to consider the effect

2 of section 1(1) of the Defamation Act 2013, because, as I am

3 sure your Lordship knows, the statute applies to causes of

4 action accruing after 1st January of this year, so in the

5 ordinary way of things this is a January publication and it is

6 the first time, as far as we are aware, that one has come

7 before the courts.

8 My Lord, the background is set out in my skeleton. I am

9 only proposing to deal with it very briefly. The case, as I

10 said, concerns an article which was published in the Sunday

11 Mirror on 26th January. The article arose on the back of, I

12 think it is fair to say, a controversial Channel 4 programme

13 called Benefits Street which was broadcast in January and

14 February of this year. At some point the Sunday Mirror

15 decided to investigate the ownership of properties in the

16 street and a reporter visited the first claimant's offices and

17 indicated that the claimants were going to be mentioned in the

18 article. Your Lordship will have seen the reporter was

19 ultimately persuaded that that was not a good idea and indeed

20 said that they would not be included in the article. However,

21 when the article was published they were mentioned. The

22 Sunday Mirror immediately, or very shortly after, took the

23 reference to the claimants off the online version, but

24 obviously the hard copy had gone out in some 800,000 plus

25 copies to some two million plus readers.

2

1 There was then an immediate complaint and I do not

2 propose, unless anyone wishes me to, to go into the

3 correspondence? It simply forms part of the background. The

4 claimants sought the publication of an apology. Crucially, we

5 say, the Sunday Mirror refused to include any words accepting

6 that the article was defamatory or false, so the apology was

7 not, we say, in full and clear terms. It certainly was not in

8 agreed terms. The Sunday Mirror insisted and continued to

9 insist that although it had removed the paragraph referring to

10 the claimants and it had published the apology item, there was

11 no reason in fact for removing that paragraph, no reason in

12 law and it had done nothing wrong in law and, as a result,

13 these proceedings were started.

14 My Lord, the way I am proposing to deal with it, subject

15 to your Lordship's views, is to begin by dealing with the law,

16 which is largely uncontroversial, certainly in relation to

17 meaning it is not very controversial, and then to deal with,

18 first of all, the meaning of the article and then the

19 question of serious harm. It is not quite how it is dealt

20 with in my friend's skeleton, but I am in your Lordship's

21 hands. If your Lordship would prefer to deal with it, as it

22 were, tranche by tranche, I will do it that way instead.

23 MR. JUSTICE BEAN: No, you take your own course. There are not

24 happily so many issues that I will get confused.

25 MR. TOMLINSON: My Lord, no. Perhaps I should just say something

3

1 about, as it were, an introduction about section 1(1). I do

2 not know what the most convenient place to look at it is. I

3 have a copy of the full Act here if that would be helpful to

4 the court.

5 MR. JUSTICE BEAN: By all means if you have made copies, yes.

6 (Same handed.)

7 MR. TOMLINSON: It is rather uninspiringly described in its long

8 title as an Act to amend the law of defamation. Section 1(1)

9 provides that: "A statement is not defamatory unless its

10 publication has caused or is likely to cause serious harm to

11 the reputation of the claimant."

12 It is agreed between us, and I think uncontroversial,

13 that what that section does, it does not introduce a

14 definition of defamatory, it simply adds an additional bar, an

15 additional requirement, so, as it were, under the old law, a

16 claimant was required to establish that the words complained

17 of were defamatory and then, subject to defences, the claimant

18 had a good claim if the statement was published by the

19 defendant. Here, what the Act does is introduces in effect

20 two stages. First of all, is it defamatory at common law, but

21 if it is defamatory at common law, then it is not actionable

22 unless its publication has caused, or is likely to cause,

23 serious harm to the reputation of the claimant.

24 That is why the two issues have been formulated in the

25 way that they have, because it is effectively now a two stage

4

1 process, whereas under the old law it would have been a one

2 stage process. In relation to a pre 1st January 2014 cause of

3 action, if this was a meaning hearing where your Lordship was

4 determining the actual meaning of the words then we would be

5 doing, as it were, stage one, but because of the terms of

6 section 1(1) your Lordship now has a stage two.

7 My Lord, I just make two other points about what is

8 common ground before I go into the question of meaning. The

9 first is that however it works, it is common ground that the

10 section is intended to "raise the bar", in the words of the

11 explanatory notes. It is intended to make it more difficult

12 to sue for defamation. Going ahead of myself, one of the

13 central issues your Lordship will have to determine is how

14 much more difficult it is intended to make it. We say only by

15 a modest amount. Mr. Price says, although not quite in these

16 terms, that it effects a radical transformation of the law of

17 defamation.

18 The final point which is common ground I just make now,

19 just for the sake of clarity. Although, as your Lordship

20 knows, defamation damages have traditionally been assessed

21 under three heads; that is to say, damage to reputation,

22 distress and vindication, section 1(1) deals only with the

23 first of those; in other words, damage to reputation. If

24 there is no serious harm to reputation, either caused or

25 likely to be caused, then it matters not at all that the

5

1 claimant has suffered the most intense distress. That is the

2 effect of the section. Neither does it matter that the

3 claimant requires the most clear and obvious vindication,

4 because that is not what the section says. There is a gateway

5 that a claimant has to get through which section 1(1) lays

6 down. My Lord, as I say, I will turn to that in more detail,

7 but I thought it might just be helpful to say something about

8 that at the very outset.

9 My Lord, can I now then turn to meaning. Your Lordship

10 is, of course, I know very familiar with this and there is no

11 dispute about the basic principles. They are set out

12 helpfully most recently in the well-known summary in the case

13 of Jeynes v. News Magazines. Your Lordship has doubtless been

14 referred to these many times. They are set out in my skeleton

15 at paragraph 20 and just for your Lordship's note, the Jeynes

16 case is in the defendant's authorities bundle at tab 5. I am

17 not going to turn to it unless your Lordship or my friend

18 wishes.

19 MR. JUSTICE BEAN: It is the same paragraph as is always cited in

20 every skeleton argument in every case.

21 MR. TOMLINSON: Yes and it seems to be lifted from Mr. Caldecott's

22 skeleton in that case, but there we are. It has certainly

23 been approved on numerous occasions. But, my Lord, one point

24 that is important, because Mr. Price makes a lot of play of it

25 in his skeleton, and it is important to be clear about this,

6

1 is the purpose and effect of the single meaning. The court

2 has, as we all know, to determine the single natural and

3 ordinary meaning of the words complained of. That is, of

4 course, in one sense a wholly artificial exercise, because, as

5 we all know, words do not have single meanings, different

6 people understand them in different ways.

7 Again, I have referred in my skeleton, although I do

8 not propose to take your Lordship to it, unless it would be

9 helpful as a reminder, to the classic discussion by Lord

10 Diplock of the single meaning rule in Slim v. Daily Telegraph

11 where he pours a certain amount of scorn on it, but accepts

12 that that is the law that has to be applied.

13 The crucial point about the single meaning rule, we say,

14 Mr. Price stresses at some length its artificiality, is that

15 the hypothetical ordinary reader is a person who is at the

16 midpoint of the scale. It is a pragmatic and sensible

17 approach by the common law, because some readers, those who

18 are, in the time-honoured phrase, avid for scandal, will read

19 a text as insinuating all kinds of negative things. They will

20 seek to read between the lines and say, "Ah, they must be

21 really getting at this point". Those are at one end of the

22 scale and at the other end of the scale there are people who

23 are not, who again in some of the cases are referred to as

24 naive or perhaps literally minded who take nothing bad at all

25 from the words complained of.

7

1 One possible approach would be to try and work out all

2 the possible meanings that words bear and, indeed, that is now

3 the law in relation to malicious falsehood, but the Court of

4 Appeal decided recently that in malicious falsehood you did

5 not apply the single meaning rule, but the purpose of the

6 single meaning rule in libel is to find that hypothetical

7 midpoint which is where you look at the position that a reader

8 who is not avid for scandal but not naive would arrive at.

9 When Mr. Price says in his skeleton at paragraph 14 that the

10 common law lays down a binary approach, all the readers draw

11 the inference or none of them ----

12 MR. JUSTICE BEAN: That is a different way of putting it, but

13 there is only one hypothetical reasonable reader.

14 MR. TOMLINSON: Yes.

15 MR. JUSTICE BEAN: Of course, in a sense, it is nonsense to say,

16 unless it is deeming, that everybody understands the article

17 in the same way.

18 MR. TOMLINSON: Of course they do not.

19 MR. JUSTICE BEAN: Of course they do not, but there is only one

20 hypothetical reasonable reader.

21 MR. TOMLINSON: Yes, but what Mr. Price goes on to say is that a

22 large number of readers will not draw the adverse inference

23 the court has found to be the true meaning. Of course that is

24 right. Those are the ones towards one end of the scale, but

25 what he leaves out is that in the other direction there are

8

1 people who are going to be reading it in a more damaging way

2 and the common law seeks to balance the two. It discounts

3 those who read it in a damaging way and, as it were, also

4 discounts those who read it in an innocent way. In this case

5 (I will say a bit more about this in a moment) some readers

6 may say, "Look at this article, it is all about Tory

7 millionaires, obviously all these people are in cahoots with

8 the Tory party and they are up to no good and there is all

9 kinds of political corruption going on." That would be a

10 reader avid for scandal and that is not a fair way of reading

11 the article.

12 Contrary-wise, there may be readers who, like Mr. Price,

13 focus only on the paragraph in which the claimants are

14 mentioned and say, "Well, look, it is just factual, so really

15 there is nothing wrong at all. It just says they own property

16 in this street and their Chief Executive earns this amount of

17 money. What could be wrong with that?" That is the far end

18 of the scale, the naive or literalist reader and the one who

19 thinks it is about some great political corrupt scandal is the

20 one who is avid for scandal, but the reasonable reader is in

21 the middle and the law of defamation is balancing the whole

22 scale by alighting on the fictional character right in the

23 middle. Of course, it is an artificial exercise, but it is

24 also a pragmatic one and it is a pragmatic one which is

25 intended to balance the position in a sensible way rather than

9

1 engaging in a vast exercise of looking at every possible

2 meaning, because, of course, if you looked at every possible

3 meaning then inevitably you find damage, because you would

4 find some people who read the article in a way that was very

5 damaging. If a hypothetical reasonable reader was not picked

6 out, defendants would always lose and the common law seeks to

7 avoid that by this fiction, but this pragmatic and useful

8 fiction.

9 My Lord, we certainly part company with Mr. Price on the

10 analysis of the utility of the approach that the common law

11 has taken. It could be done in other ways, but the way that

12 it does it works perfectly well in practice.

13 The claimants' contentions as to natural and ordinary

14 meaning are set out in the particulars of claim and we say

15 that what the article means is essentially that Midland Heart,

16 the second claimant, is a disreputable private landlord who is

17 making large amounts of profit out of squalid and substandard

18 housing from renting them to people in receipt of housing

19 benefit and, therefore, making money on the misery of those in

20 the street and that the first claimant, Mrs Cooke, is

21 personally responsible for that.

22 My Lord, I have not taken your Lordship to the article

23 for a long time. I think it is important now to go to it.

24 Your Lordship has it in tab 1 of bundle A. We obviously want

25 to avoid what Lord Diplock describes and Mr. Price adopts that

10

1 the logical positivist exercise of analysing for a long period

2 something which everybody accepts should be a matter of

3 impression and assessment on the basis of a single reading.

4 MR. JUSTICE BEAN: I have come to learn this, Mr. Tomlinson, but,

5 as I said in one of the cases, maybe the way these things

6 ought to be done is the judge is given the article, asked to

7 read it once and then write down what the paragraph complained

8 of means without hearing any submissions, referring to

9 anything else and then that is the end of the case or at least

10 end of the meaning section. Anyway, I did read it. Having

11 discovered what the case was about, I read it before I did

12 anything else.

13 MR. TOMLINSON: My Lord, I am grateful for that indication. I am

14 not going to weary the court by going into a line by line

15 analysis, but it is important to draw attention to a number of

16 points. I have set these out in my skeleton, but I will just,

17 if I may, go back to them briefly. Obviously, the words

18 complained of, I will not repeat them, are set out at

19 paragraph 8 of the particulars of claim, but they need to be

20 read in the context of the whole article.

21 MR. JUSTICE BEAN: Yes.

22 MR. TOMLINSON: The headline on the front page gives us really

23 very little doubt as to what the article is about. It is

24 about a millionaire Tory cashing in on TV Benefits Street and

25 then we are told that there is a damp and mouldy dump being

11

1 rented out for £215 a week. It is right to say, and Mr. Price

2 emphasises this point and, of course, I accept it, that the

3 focus of the article is on Mr. Nischal, the Mr. Goldfinger as

4 he is referred to, but he is not the only one. My Lord, the

5 paragraphs on page 1 essentially repeat the headline in the

6 box under the photograph.

7 One then turns to pages 4 and 5 and across the top of

8 the page we are told "Mr. Goldfinger is raking it in from

9 Benefits Street" and then we have the large headline about the

10 property riddle with damp and so on and so forth. The first

11 column deals with this specific property and Mr. Nischal and

12 his luxurious home and so on. The contrast is drawn between

13 his living in luxury in a gated house in a smart suburb of

14 Birmingham and the condition in which his tenant, the refugee

15 from the Congo is living. The first column on page 4 is about

16 Mr. Nischal.

17 At the second column at the bottom of the page we then

18 have quotes from two MPs and although it is said that they are

19 blasting Mr. Nischal, in fact they are both speaking in

20 completely general terms. Laura Sandys is saying that some

21 private landlords do not care, are only interested in getting

22 in the rent and then they just walk away and then the local

23 Labour MP, Mr. Mann, makes a general comment about private

24 landlords. "Private landlords are making a killing from

25 housing benefit payments and often don't care at all about the

12

1 standard of the property they rent out. For them, it is all

2 about getting rich on taxpayers' money", again a completely

3 general comment. None of this is directed at Mr. Nischal, it

4 is private landlords in general.

5 Turning the page, in the first column on page 5 we are

6 then given a little nugget of information about Mr. Nischal

7 being a former aid to Rajiv Ghandi, but then there are these

8 words which we say are particularly important, bearing in mind

9 where they come in the article: "Our probe reveals a string

10 of well-off property owners are paid up to £650 a month by the

11 Government through the housing benefit system", so there has

12 been a probe and it has revealed that there is a string of

13 well off property owners. We already know who one of them is,

14 that is Mr. Nischal or Goldfinger, his company, and then we

15 are told, first of all, one of them is a wealthy dentist and

16 then we have the paragraph which refers to the claimants.

17 MR. JUSTICE BEAN: The dentist is the subject of the insert on the

18 previous page.

19 MR. TOMLINSON: Yes. The dentist also appears on page 4 in the

20 top left hand corner. There is a probe and it has revealed a

21 string of well-off property owners paid up to £650 a month by

22 the Government and so on. There is then the paragraph about

23 the claimants. The reader is reminded of the general nature

24 of the street. They have been portrayed as scroungers and

25 lowlife by Channel 4 and then it says they are owned by

13

1 Midland Heart housing association. "Its chief Ruth Cooke, 45,

2 earns £179,000 a year and lives in a large house in Stroud,

3 Glos." The article then goes on to talk about another

4 property owner, the Deputy Police and Crime Commissioner, and

5 then makes some general comments about Benefits Street, the

6 criminality or the alleged criminality of certain of the

7 residents. It quotes older residents as criticising Channel 4

8 for selective editing. Mr. Price relies on that passage, but

9 it is interesting that the older residents are complaining

10 about the worst aspects of life being represented. They are

11 saying nothing about the landlords or about the quality of the

12 properties.

13 Then there are two paragraphs quoting comments

14 favourable to Mr. Nischal and then in the finest tradition of

15 this kind of newspaper story, the boot is then put in in the

16 final paragraphs and Mr. Nischal has said he has worked

17 incredibly hard and he spends a lot on repairs, but just so we

18 know that actually that is not right, we are then told at the

19 end: "But that is little consolation to Mr. Mbuyamba. He

20 said: 'All I know is that I keep asking for the damp to be

21 sorted out but no one comes'." The last paragraph tells us

22 that actually the protestations of the landlords are all hokum

23 and really the poor tenant is being very badly treated.

24 My Lord, we say that if one reads that quickly through

25 the reader sees these claimants featuring after the probe has

14

1 revealed the landlords. There is no antidote whatever. There

2 is nothing at all in the article that says these people are in

3 a different category. It is inevitable that their being

4 mentioned, the reader would conclude that they are landlords.

5 It does not say so in terms, but I think the defendants

6 concede that it is likely that they would be regarded as

7 landlords. The only detail that is given is of squalid

8 properties. Nowhere in the article does it say that some

9 properties in the road are in a perfectly fine state and some

10 of the landlords are perfectly decent characters. All the

11 bane is there, but no antidote.

12 We say that the way that the article introduces Mrs

13 Cooke is particularly telling. Her salary of £176,000 is

14 mentioned and her large house. The reader reading that

15 paragraph, it is perhaps over-analytical to say that they

16 think, "Why is it being mentioned she has got a large house

17 and a large salary?". The reader thinks, "Well, she is

18 another one with a snout in the trough". That is what the

19 reader is bound to draw from that paragraph. This is hardly a

20 passing comment on the level of Chief Executive salaries in

21 the public sector. The suggestion that Mr. Price makes,

22 perhaps rather faintly, that somehow this could be regarded as

23 a passing comment on the disparity between her salary and the

24 amount that the poor benefits claimants of James Turner Street

25 receive is, we say, fantastical. It is there. The reason her

15

1 salary is being mentioned, the reason her large house is being

2 mentioned is that, we say, any reasonable reader would take

3 the view it is there to show that she is another one who is

4 raking it in, she is there raking in the profits from renting

5 out these squalid houses. Otherwise, what is the point of

6 mentioning her salary, what is the point of mentioning her

7 large house?

8 My Lord, of course, the reasonable reader is not

9 dwelling on every paragraph, but the overall impression given

10 by the article in the absence of any antidote and any pointers

11 to the contrary is that all these people are in it together,

12 they are all landlords renting out squalid properties to poor

13 tenants, raking it in from the public purse. My Lord, we say

14 that really that is the beginning and the end of it and your

15 Lordship needs to analyse no further than that.

16 Can I just on the question of meaning deal briefly with

17 some points made by Mr. Price in his skeleton. I think it

18 just may be helpful for me to deal with them now. First of

19 all, he suggests that the ordinary reader would know that

20 Midland Heart is non-profit, because it is referred to as a

21 housing association. My Lord, I have two answers to that.

22 First of all, your Lordship may have noticed in the article

23 "housing association" is not capitalised, it is small h, small

24 a. It does not appear to be a specialist kind of entity, it

25 is just the words "housing association". Would an ordinary

16

1 reader know that that is some sort of special body whose

2 purpose is to not make a profit? I think I am entitled to

3 draw attention to the fact that an ordinary Mirror journalist

4 did not know that.

5 Your Lordship may have seen bundle A, tab 8, page 3. It

6 is a note prepared by an employee of Midland Heart about the

7 first approach by the journalist who actually wrote the

8 article. In the large text box on the first page, that is on

9 page 3 itself, Mr. Wright confirms that he has written a two

10 page spread for this Sunday's paper, "Wealthy tory is getting

11 even richer on tax payers money".

12 "The main elements of the story are: Private landlord

13 (rich dentist) owns 3 properties ... Private landlord two is a

14 'tory who is great friends with John Major ... He owns 62

15 other properties in the area. All on benefits. They have

16 found (from a land registry) that Midland Heart owns '3 or 4'

17 homes. (They didn't search all of the street - we were the

18 first that popped up).

19 "Main gist is that PR LL" (that is private landlords)

20 "owners are generating a profit from tax payers who are paying

21 the rent through benefits claimed. A third element of the

22 story is that they are including CEO Ruth's salary £179k,

23 saying that Ruth lives in a large house ... and that Ruth/our

24 business is getting rich on benefits too."

25 Then she records her thoughts about does he know

17

1 anything about the business and the fact that they are a

2 housing and care organisation and not for profit, whether it

3 would change anything and he said: "No, but did recognise

4 that wasn't an ideal fit". Then at 3 p.m. Mr. Wright, SW,

5 calls Ms. Govani to say: "Someone at their office had looked

6 at our financial statements as realise that we are not for

7 profit and are beginning to consider if we should be part of

8 the article." In other words, when Mr. Wright approached the

9 claimants, he thought they were a private landlord and it was

10 only when someone from his office had looked at the statements

11 they realised that they were not for profit. That is

12 something of an indication at least that an ordinary reader of

13 the article is not going to immediately jump to the conclusion

14 that they are not for profit. I say this without any intended

15 hint of irony at all, but one assumes that Sunday Mirror

16 journalists are more sophisticated than ordinary reasonable

17 readers and if they do not know it, it seems unlikely that an

18 ordinary reader would know it.

19 We say that an ordinary reader would not really have

20 anything more than a hazy idea that a housing association is

21 some body that provides housing. Your Lordship will have

22 seen there was a debate in the correspondence as to whether it

23 was a body that fell under section 1(2) of the Act; in other

24 words, whether it was a corporation trading for profit. We

25 say that the ordinary reader is not going to immediately

18

1 realise it is not for profit and immediately realise that

2 therefore it is different from a private landlord. No such

3 indication is given and all the indications are to the

4 contrary. I say the indications are to the contrary, because

5 there it is as part of a run of private landlords who have

6 been discovered as part of a probe and the ordinary reader

7 that paused for a moment would think, "If they were any

8 different, why hasn't the Sunday Mirror said so?"

9 Mr. Price suggests that the ordinary reader would

10 understand the paragraph in its literal meaning; in other

11 words, this is a body which owns three properties and has a

12 Chief Executive with that salary who lives in Stroud. My

13 Lord, that does not bear serious examination. The paragraph

14 has to be read in the context, as we have already said.

15 The article is, we say, not just making the allegation.

16 Mr. Price argues this, that to say someone profits from

17 renting properties is not defamatory, because renting

18 properties is a lawful activity which some people may approve

19 of, some people disapprove of, but it is not defamatory to say

20 that someone does it, but that is not the issue. We say, put

21 very shortly, that this is a rogues gallery of slum landlords.

22 These are people who are exploiting disadvantaged tenants, The

23 only properties referred to are squalid, and no suggestion is

24 made that any other properties are in any better condition,

25 certainly no suggestion is made that the claimants' properties

19

1 are in a better condition. We say that the meaning cannot be

2 confined to a non-defamatory allegation that they are

3 profiting from housing benefit. The context inexorably points

4 further and points to their conduct being of a piece with the

5 conduct which is criticised throughout the article and the

6 conduct criticised by the MPs. Why are the MPs attacking

7 private landlords in general? They are not saying that

8 private landlords are appalling, but housing associations are

9 in a different category. If that was in the article then we

10 would not be here today.

11 My Lord, we say that the articles bear the meanings

12 pleaded or meanings to substantially that effect. I will not

13 read them out again. Your Lordship has them. They are at tab

14 4, page 4, paragraph 9 of the amended particulars. One could

15 obviously debate the precise way it is put, but the essence of

16 the allegation being that they are one of these slum landlords

17 renting out properties to disadvantaged people in a squalid

18 state and profiting thereby and that the first claimant is

19 personally profiting, because that is why her salary and large

20 house is mentioned.

21 My Lord, that is all I propose to say about meaning,

22 unless there is anything else your Lordship would find

23 helpful.

24 MR. JUSTICE BEAN: No, thank you.

25 MR. TOMLINSON: Can I now turn to the new requirement of serious

20

1 harm. I have already indicated the points of agreement. It

2 is tolerably clear that the Act is designed in some sense to

3 raise the bar. My Lord, I do not know if your Lordship has my

4 skeleton there conveniently to hand, but at paragraph 30 I

5 have quoted the explanatory notes. Mr. Price also mentions

6 them. The explanatory notes to section 1(1) tells us: "The

7 section builds on the consideration given by the courts in a

8 series of cases to the question of what is sufficient to

9 establish that a statement is defamatory." It refers to

10 Thornton v. Telegraph Media Group identifying a "threshold of

11 seriousness" and then also refers to the rather different

12 jurisdiction, the Jameel jurisdiction to strike out trivial

13 cases on the basis they are an abuse of the process and then

14 says this: "The section raises the bar for bringing a claim

15 so that only cases involving serious harm to the claimant's

16 reputation can be brought."

17 It is not entirely clear from those bare words how the

18 courts are meant to proceed and particularly how this relates

19 to the common law threshold of substantial harm. It is, of

20 course, important to bear in mind that the section is

21 restricting rights which are otherwise granted by the common

22 law and therefore must be construed strictly, that the common

23 law grants certain rights to people to sue for defamation.

24 This is trying to restrict them in some way and, therefore,

25 the court has to proceed cautiously.

21

1 We have mentioned some Parliamentary materials, so have

2 the defendants. Of course, the courts are very well aware of

3 the restrictions of using such materials as an aid to

4 construction, but we say that the provision is obscure because

5 it is not entirely clear, there is certainly no guidance in

6 the case law as to what serious harm to reputation might mean.

7 Some consideration of the statements by the sponsoring

8 ministers is therefore of assistance.

9 In terms of obscurity, can I just refer to the paragraph

10 in Gatley that deals with this that rather illustrates the

11 difficulty of the position. I do not know if your Lordship

12 has Gatley as a hard copy book.

13 MR. JUSTICE BEAN: I have upstairs, but if you could kindly

14 produce an extract.

15 MR. TOMLINSON: It is in tab 4 of my bundle and part of the

16 relevant chapter of Gatley has been reproduced. It is

17 paragraph 2.6. "Under s.1 of the 2013 Act, the claimant must

18 prove that the publication has caused, or is likely to cause,

19 serious harm to his reputation. Proof that serious harm has

20 actually occurred will obviously suffice but the claimant need

21 only prove that such harm was likely. The harm need not

22 manifest itself in financial terms, though it may do so:

23 serious harm for the purposes of this provision may also be

24 established by proof that the effect of the libel was to cause

25 others to shun the claimant or that the claimant was caused

22

1 serious injury to feelings, distress, hurt and/or

2 humiliation". There must be some doubt about the second part

3 of that statement about the claimant was caused serious injury

4 to feelings, distressed, hurt and/or humiliation, because, as

5 I have said already, the section only refers to reputation.

6 "Section 1(1) will have the effect of putting the burden

7 on the claimant to prove that the defamatory imputation has

8 caused, or is likely to cause, him serious harm. At present,

9 the claimant need only establish that the words complained of

10 have the tendency adversely to affect his reputation. The

11 question whether a publication has the tendency adversely to

12 affect a person's reputation can of course be determined by

13 examining the statement on its own" and so on. "The inherent

14 gravity of the allegation" and so forth.

15 "The claimant should therefore include details in his

16 particulars of claim of the harm caused, or likely to be

17 caused, to him by the publication complained of." That was a

18 counsel of perfection for the modern pleader. Then there is

19 this, paragraph 2.7. It raises the question as to whether

20 there is a raised threshold. "Beyond requiring greater

21 particularity by the claimant in his pleadings with regard to

22 the harm suffered, the question arises whether s.1(1) will

23 make it more difficult for claimants to succeed. As stated

24 earlier in the chapter, the law already requires that an

25 imputation meet the necessary threshold of seriousness, and

23

1 there is also currently the potential for trivial cases to be

2 struck out under the Jameel abuse jurisdiction. ... It is true

3 that currently the law only looks to the tendency of the

4 words, but s.1 only requires that harm is likely and it is

5 difficult to think of cases where an imputation has the

6 tendency to adversely affect a person's reputation to a

7 substantial degree that are not also likely to cause serious

8 harm to reputation" and then goes on to say that perhaps cases

9 following in the second or third categories of personal

10 defamations may be in a different category. These are the

11 shun and avoid cases, the Princess Yusupov v. MGM sort of

12 cases, where what the person is being accused of is something

13 which in no way affects their character, it is not said they

14 have done anything wrong, but because of the terrible things

15 that have happened to them, people might shun and avoid them.

16 So what is being said in this section is perhaps that

17 the "raise the threshold" does not work at all. Mr. Price

18 criticizes that in his skeleton, but we say that that, at the

19 very least, shows that the question of construction is a

20 difficult one and the meaning is obscure. In those

21 circumstances, your Lordship can properly have regard to some

22 of the Parliamentary materials.

23 What I was proposing to show your Lordship was simply

24 one passage which seems to us to really sum up the

25 Government's view on that. It says in terms it sums up the

24

1 Government's view of section 1(1). It is in my authorities

2 bundle at tab 3. It is the House of Lords Grand Committee on

3 17th December of 2012. Your Lordship will see from the first

4 page of the photocopy that at 3.30 pm the House began to

5 consider various amendments to clause 1, serious harm. There

6 is one moved by Lord Browne of Ladyton. Then, at the bottom

7 of the next page -- that is column GC422 -- Lord McNally, who

8 is one of the two sponsoring ministers (the other was the then

9 Lord Chancellor, Kenneth Clarke), said this. Your Lordship

10 will see immediately, I hope, why I am reading this because in

11 the penultimate paragraph on the page of this copy, he says,

12 in the last sentence: "In the light of requests from a number

13 of noble Lords for information on what the serious harm test

14 is intended to encapsulate, it may be helpful for me to

15 explain as fully as possible the Government's thinking behind

16 Clause 1." So this is the sponsoring Minister explaining, for

17 the benefit of Parliament, what clause 1 is about. For that

18 reason, we say it is helpful to the court.

19 "The introduction of a serious harm test reflects the

20 Government's view that there is merit in legislating to ensure

21 that trivial and unfounded actions do not proceed. It is the

22 first time that there has been a statutory threshold of this

23 nature in defamation proceedings. In the draft Bill, we

24 consulted on the following provision. It said: 'A statement

25 is not defamatory unless its publication has caused or is

25

1 likely to cause substantial harm to the reputation of the

2 claimant'.

3 "In formulating this provision, we examined a series of

4 cases over the past century in which the courts have

5 considered the question of what is sufficient to establish

6 that a statement is defamatory." He then uses words, and I

7 will not read them out because they are virtually identical to

8 the explanatory note. He refers to Thornton, Sim v. Stretch

9 and Jameel v. Dow Jones.

10 Then he says: "The 'substantial harm' clause aims to

11 encapsulate the tests applied in these and other cases. Our

12 view at that point, which we expressed to the Joint Committee

13 on the draft Bill, ws that this would reflect and strengthen

14 the current law. Establishing in statute a substantial harm

15 test for the first time would giver this requirement a new

16 prominence and would help to discourage trivial and unfounded

17 claims being brought."

18 So, at that stage, the Government is proposing to use

19 the word "substantial" which is the same word that Tugendhat J

20 used in Thornton.

21 The Joint Committee took a strict view that a stricter

22 test was appropriate and said this: "'A threshold test that

23 focuses on the seriousness of the allegation would raise the

24 bar in a meaningful way and give greater confidence to

25 publishers that statements which do not cause significant

26

1 harm, including jokes, parody, and irreverent criticism, do

2 not put them at risk of losing a libel claim'. It recommended

3 a test of serious and substantial harm.

4 "The Government's response to the committee's report

5 expressed our concern at using two separate terms alongside

6 each other. I will return to that point shortly.

7 "However, it indicated that, in the light of the

8 committee's views and the balance of opinion on consultation,

9 the Government were persuaded that it was appropriate to raise

10 the bar to bringing a claim and that a test of serious harm"

11 -- those are the words "raise the bar" which we found in the

12 explanatory note -- "would do this while maintaining a

13 balance a that is not unduly restrictive of claimants'

14 rights."

15 My Lord, we emphasize the next sentence: "Our view is

16 that the serious harm test would raise the bar to a modest

17 extent above the requirement of the current law. A wide range

18 of circumstances may be relevant in determining whether the

19 serious harm test is met in individual cases. We do not

20 consider that it would be practicable to try to predict

21 particular circumstances or types of case which would or would

22 not fail to meet the test, nor is it appropriate for Ministers

23 to try to second guess how the courts would behave."

24 He then gives an example, and the example he gave is a

25 case your Lordship may be familiar with called Mardas v. New

27

1 York Times. That is a Jameel case in which I seem to remember

2 Mr. Mardas was a man who was involved with The Beatles.

3 Anyway, I now forget but it does not matter. The point was

4 that there were 177 hard copies and 31 hits on the on-line

5 version. So we have a relatively small number of

6 publications, but the judge, who I recollect was Eady J,

7 refused to strike it out because a few dozen was enough to

8 found a cause of action, although the damages were likely to

9 be modest.

10 He then goes on to say: "We believe that the court

11 would be likely to take a different view of this case under

12 the serious harm test. In referring to this example, it is

13 important to make clear that although the decision in Mardas

14 related primarily to the extent of publication in this

15 jurisdiction, this is only one of a wide range of

16 circumstances which might be relevant to whether the claimant

17 has suffered serious harm. The court will need to consider

18 all the circumstances in reaching its decision. I appeal to

19 the fellow lawyers of the noble Lord, Lord Browne, on this

20 issue, but as a layman I feel that he may be setting too high

21 a hurdle for me to clear in giving various examples because in

22 the end it will be for the courts to decide. My layman

23 suspicion is that that is the best place to leave the matter

24 rather than for me to try to give examples.

25 "As well as influencing how the courts approach these

28

1 cases, we consider that the introduction of a serious harm

2 test would have an important impact in discouraging claimants

3 from bringing trivial claims. When claimants are considering

4 whether to bring an action they will need to ask themselves

5 whether the harm that they believe they have been caused is

6 really serious. An advantage in using this term is that it is

7 in common usage. We think that this is likely to make many

8 claimants think twice about bringing proceedings. I hope that

9 the explanation I have given of the Government's thinking is

10 helpful."

11 Then he goes on to deal with the amendments. Amendment

12 1 seeks to add an additional condition so that it is

13 defamatory only if the extent of its publication has caused,

14 or is likely to cause, serious harm. "We do not consider

15 this amendment is necessary or appropriate." He said the

16 courts can consider that anyway and it would not be

17 appropriate to give an "undue prominence to the extent of the

18 publication over and above other factors ... One of our key

19 aims in the Bill is to simplify the law."

20 So, my Lord, that is the Government giving, as it were,

21 its considered explanation of what section 1 is about. Of

22 course, it is said that all the circumstances are to be taken

23 into account and it will be a matter for the courts, but what

24 is clearly intended are two things. One is to raise the bar,

25 and I have already accepted that but, second, and we say this

29

1 is very important, to a modest extent to exclude trivial

2 claims. We say that if it had been suggested in the course of

3 Parliamentary debate that the serious harm test was intended

4 to apply to publication to 2 million readers in the national

5 newspaper, incredulity would have been expressed because that

6 is not a trivial claim. It is not a modest extension of the

7 law. It would be a radical revision of the law.

8 MR. JUSTICE BEAN: But the extent of publication, the number of

9 copies, cannot be conclusive either way, can it?

10 MR. TOMLINSON: My Lord, it cannot be conclusive but, on the other

11 hand, we say it is a factor which is a very powerful one

12 indeed. The fact is that, in a sense, what this test is

13 intended to do is to run Jameel and Thornton together, so it

14 has to be a threshold of seriousness and the claim has to be a

15 non-trivial one. Previously, those were dealt with

16 separately. One was part of the definition of defamation and

17 the other was part of the abuse jurisdiction, but one only has

18 to ask the question, would it be possible to strike out as an

19 abuse on the Jameel basis a publication of this kind to see

20 that really it would be a very substantial extension of the

21 law if Mr. Price's submissions were accepted? He talks in his

22 skeleton of establishing tangible, adverse consequences, and

23 he says at paragraph 36 that the reputations of large,

24 commercial organisations and their CEOs are comparatively

25 resilient. He also says that the business decisions are

30

1 rarely affected by passing adverse references in media

2 publications. I do not know where he gets that from. It

3 seems to be falling into the error of giving evidence in his

4 skeleton. But if those submissions were right, if tangible,

5 adverse consequences had to be shown, and if the court

6 essentially assumed that reputations were resilient, certainly

7 of large organisations and their CEOs, it is a defamous

8 charter because what that means is that a large number of

9 defamatory allegations made in newspapers could be defended on

10 the basis of, "Well, they have not really suffered any harm.

11 Where is the evidence of adverse consequences? They have

12 resilient reputations". The fact that we have, ex hypothesi,

13 said something about them which is false and defamatory does

14 not really matter.

15 MR. JUSTICE BEAN: But large national organisations -- query their

16 CEOs -- as such bring in play in section 1(2).

17 MR. TOMLINSON: If they are trading for profit.

18 MR. JUSTICE BEAN: Yes.

19 MR. TOMLINSON: Of course, but he has accepted that section 1(2)

20 does not apply.

21 MR. JUSTICE BEAN: No, but it was just the phrase "large

22 commercial organisations".

23 MR. TOMLINSON: Sorry, I am ----

24 MR. JUSTICE BEAN: Large organisations, though not trading for

25 profit.

31

1 MR. TOMLINSON: Yes. I was quoting from his skeleton. I think

2 the word "commercial" probably should not be there. If it is

3 said that large organisations, substantial figures in them,

4 have resilient reputations and can only bring defamation

5 claims if they can establish tangible, adverse consequences,

6 that would be a radical revision of the thing and would go a

7 very long way beyond the modest extension of the threshold

8 which it was the Government's intention, as Lord McNally's

9 statement makes clear. We are not here talking about trivial

10 claims. We are talking about potentially substantial claims

11 because if one just stands back and assumes in my favour for

12 the moment, that I establish the defamatory meaning on the

13 lines I contend for, or something to that effect, that would

14 be a case which would attract substantial damages in the

15 ordinary course. But if Mr. Price is right, although it would

16 attract substantial damages in the ordinary course,

17 nevertheless it is knocked out by this section. That, we say,

18 is a radical revision of the law, a radical removal of common

19 law rights, and a step that the court should only take if it

20 absolutely required to do so by the wording of the statute,

21 which it is not.

22 My Lord, can I just say something because there is a

23 fundamental difficulty here which I have outlined in my

24 skeleton which is that what has to be shown is serious harm to

25 reputation. One has to ask the question, how does one

32

1 establish serious harm to reputation? If the argument is that

2 section 1 now requires you to put forward evidence of

3 substantial harm to reputation, how is it envisaged that one

4 goes about it because the person's reputation is the

5 estimation in which they are held by other people? There is

6 no obvious or recognised way of measuring it, in contrast to

7 physical harm or economic harm where they recognise ways of

8 doing it. There is no generally accepted way of ascertaining

9 either the extent of actual harm or likely harm.

10 I pray in aid the point which is often made in the

11 authorities, that even when you are talking about small scale

12 publications, it is never possible to ascertain who has read

13 them and what effect they will have on the minds of readers.

14 Your Lordship will, of course, remember the case of Cairns v.

15 Modi.

16 MR. JUSTICE BEAN: Yes, indeed. How could I forget it? But with

17 the percolating underground springs and, as I said in that

18 case, the Internet coming in long since Lord Atkins' day, the

19 percolation effect is even faster, certainly. But you are not

20 really saying that such things are incapable of proof, are

21 you?

22 MR. TOMLINSON: Well, I do not say that they are incapable. That

23 would be going too far but there are no established principles

24 for assessing damage to reputation. In passing off cases, as

25 your Lordship may know -- and this will be a radical departure

33

1 in the defamation field -- sometimes people commission public

2 opinion polls to find out about the extent of people being

3 misled by goods which are got up in the garb of someone else's

4 goods. I suppose one could call expert evidence from a

5 specialist in reputation management. There are possibilities,

6 but how does one actually ascertain whether or not a very

7 large number of readers have changed their estimation of a

8 person as a result of a particular publication? The

9 difficulty, the practical difficulty, is obvious. It is

10 relatively common in defamation cases to have some witnesses

11 who say, "I read this and I thought how appalling", but they

12 are of very limited value because those are people usually who

13 know the claimant and, obviously, by and large, will know that

14 what is said is false. The real damage is done, not on the

15 basis of your friends reading it but on the basis of people

16 you do not know reading it because those are the people who

17 may say, "They look pretty dodgy. I do not think we will deal

18 with them in the future." You may never get to know, for

19 obvious reasons.

20 I do not say it is impossible; of course not. There are

21 methods that could be devised but the common law has never, up

22 to now, chosen to go down that path because of the

23 difficulties. The common law has chosen, when assessing the

24 question of harm to reputation, to do it on the basis of a

25 broad approach of which two factors are of crucial importance,

34

1 but not the only factors. One is the seriousness of the

2 allegation and the other is the extent of the circulation.

3 Another factor which is often taken into account, in my

4 experience, is if it is said, for example, "This libel has

5 been published to people who are potential customers of the

6 claimant's business", or people who are professional

7 colleagues. So their estimation is more important than that

8 of the mass of ordinary readers because they may literally

9 shun and avoid the claimant if they believe the libel. That

10 is another factor that is taken into account. But what the

11 court has never, in my experience -- there is certainly no

12 reference in any of the authorities -- sought to engage in is

13 some more precise quantification of harm by trying to work out

14 how many readers took it seriously, for example. One could

15 see in theory that it might be possible to do. One might do

16 an opinion poll from the readers of the Sunday Mirror and ask

17 them about this article. But that would be, we say, an

18 extraordinary and radical revision of the way the law of

19 defamation approaches the question of damage to reputation,

20 and one which was not envisaged by Parliament when passing the

21 section. Parliament envisaged a modest change, one that was

22 designed to deal with trivial claims. A claim of this sort,

23 assuming that we are right about the defamatory meaning, is

24 not a trivial claim. My Lord, those are my broad submissions.

25 Your Lordship will doubtless recollect that in the Court

35

1 of Appeal in Cairns v. Modi the appellant urged the Court of

2 Appeal to take a more analytical approach to the assessment of

3 damages, a view which was rejected by the Court of Appeal,

4 that effectively said that a broad assessment of all the

5 factors was the appropriate way to deal with it, upholding

6 your Lordship's determination. In that case, what was said

7 was that the actual damage to reputation must be slight

8 because there are only 75 readers, and no plea of

9 republication. The Court of Appeal said, no, the judge's

10 approach was correct.

11 Effectively, if Mr. Price is right, then in a Cairns v.

12 Modi sort of case one would have to go and interview all 75

13 and find out what they thought to see whether the reputation

14 had been damaged or not because it may turn out that there was

15 no damage to reputation at all. We say that that is not what

16 Parliament had in mind by raising the bar in the way it did.

17 What it was trying to do was to get rid of trivial claims. My

18 Lord, those are my general submissions about serious harm.

19 What I say about serious harm on the facts of this case

20 is, first of all, that the court can properly take into

21 account that the harm is likely to be greater to someone who

22 has a good reputation because, if someone has a good

23 reputation, if question marks were asked about them, that

24 would harm their reputation. Of course, it may or may not be

25 a resilient reputation, but if we had an individual or a

36

1 trading body which lots of people had said negative things

2 about on a regular basis and it had a low reputation, then

3 throwing one more rock into the pool hardly makes things much

4 worse. If, on the other hand, somebody of a very high

5 standing is tarred with a defamatory brush, then that is more

6 likely to produce serious harm. We say that this is the exact

7 position in this case.

8 We do say that this is a case in which serious harm has

9 been caused and is likely to be caused. Mr. Price takes a

10 point on the pleadings. Although I did not sign them I am

11 prepared to take responsibility for them. It does not allege

12 that in terms. My Lord, if it needs to allege it in terms we

13 can amend it but I do not think there is ----

14 MR. JUSTICE BEAN: I did not notice the pleading point, I am

15 afraid.

16 MR. TOMLINSON: I know the point is of great interest to your

17 Lordship but he says in his skeleton, and it is right to say

18 that the pleader does not say, by reason .... This is the

19 amended Particulars of Claim, tab A4, page 4. It says: "As a

20 result of the publication of the words complained of, the

21 Claimants have been very seriously injured in their

22 reputations, and the First Claimant has suffered severe

23 distress and embarrassment." What it does not say is that

24 they have suffered and are likely to suffer serious harm to

25 their reputations. In other words, it does not recite the

37

1 statutory formula but the intent is obviously ----

2 MR. JUSTICE BEAN: I cannot see that there is any difference

3 between "injured" and "harm". Should it have said "and/or are

4 likely"?

5 MR. TOMLINSON: My Lord, I think perhaps it should. It should

6 perhaps have said something about likelihood as well.

7 Doubtless, in an ideal world, it should have recited in terms

8 reliance on the seriousness of the allegation and the extent

9 of the publication and so on. I do not think it is said that

10 Mr. Price is taken by surprise by any of those points. The

11 pleading then goes on to deal ----

12 MR. JUSTICE BEAN: I do not know how much importance Mr. Price

13 will give to this and rely on the wording of paragraph 10 but

14 I would have thought not much since the exam paper would then

15 be misconceived.

16 MR. PRICE: My Lord, I simply wanted to know whether it was being

17 said that it had been caused or was likely to be caused or

18 could be either of them.

19 MR. JUSTICE BEAN: Or both, yes. It is a perfectly fair point of

20 substance but I get from that the case will not turn on

21 whether you have to make a formal amendment to paragraph 10.

22 MR. TOMLINSON: My Lord, I just wanted to mention it because of

23 the inherent interest of the pleading point apart from

24 anything else.

25 The position is, as I said, that we say that serious

38

1 harm has been caused, between the date of publication and now,

2 and is likely to be caused in the future. The position is

3 that we are not able specifically to identify that harm. In

4 other words, what we cannot say is, "Mr. A, Mr. B,

5 organisation C, local authority D, now think less of us than

6 they did before publication". We said, in reality, that it

7 would be, I will not say impossible but extremely difficult to

8 have evidence of that sort, but it is an inference that the

9 court can draw. It is an inference the court can draw. I

10 ought to perhaps make this point. I know I have made the

11 point on a number of occasions, as it were, indirectly.

12 Perhaps I ought to make it clearly and directly so that your

13 Lordship will be under no doubt that I am making it. There

14 are two million readers of the Sunday Mirror. Undoubtedly, a

15 number of those did not read this article at all. Probably

16 most of them did because it was very prominent. Of those that

17 did read it, a good percentage may not have noticed or not

18 have remembered the names of the claimants. It may not have

19 struck them. But there are going to be some who read it and

20 who saw the claimants' names and who thought, "So they are in

21 it as well", or words to that effect. Some of those will be

22 people who knew them and think, "Oh, no, Mrs. Cooke is a

23 wholly upstanding character. This is just ridiculous. I do

24 not know why they are making those allegations against her at

25 all." Some of them will be people who do not know them at all

39

1 and it may just not strike them in any way. But there will be

2 a category in the middle that will think something about them,

3 and we say will think less of them because of those words.

4 One can speculate about the actual number. It may be tens,

5 hundreds or thousands of readers of the two million plus

6 readers of the Sunday Mirror that have that reaction. In a

7 sense, once we start to be drawn into quantification your

8 Lordship sees the obvious, utterly speculative nature of it,

9 but there will be some, and that is our point. In that huge

10 body of readers up and down the country, there will be some,

11 more than a negligible number, more than a trivial number, who

12 will notice and think, "Look what they are up to! Look at

13 that! So these people, they are in it as well! They are just

14 the same as this! Millionaire Tory! Look at these

15 characters! Look at what they are up to". That is damage to

16 reputation.

17 It does not matter, actually, in terms of damage to

18 reputation whether those people act on it. It does not matter

19 whether they, as it were, literally get out their Christmas

20 card list and cross Mrs. Cooke's name off it. It does not

21 matter whether they have a list of great and good people that

22 they are thinking of offering honours to and they say, "We

23 cannot offer it to her because I have read about her in the

24 Sunday Mirror". It does not matter whether they are going to

25 offer a contract to Midland Heart tomorrow and they cross them

40

1 off the list because if the estimation is lowered, that is the

2 test. It is reputation, estimation. If they think less of

3 them, that is the damage. They do not actually have to act on

4 that thought at all. The law of libel does not require people

5 to think less of you and, as a result, do something unpleasant

6 to you. It only requires them to think less of you.

7 We say that it is an inevitable and inescapable

8 inference that in the two million odd readers of the Sunday

9 Mirror there are going to be some people in that category who

10 are thinking less of these claimants as a result of the

11 article. That is really, in a nutshell, our case. If

12 Mr. Price or your Lordship say to me, "What is your

13 evidence?", my response is as I have already. Evidentially,

14 it is something very, very difficult to establish, but it is

15 something that the court is well able to draw inferences

16 about. Courts have always drawn inferences in libel cases to

17 this effect, and Parliament is not now saying, "Sorry, we are

18 going to have a radical revision. No inferences can be drawn.

19 You must prove it by evidence".

20 My Lord, with that not entirely jury speech, I just say

21 one or two other things about the claimants. Your Lordship

22 will have seen from the evidence, and I do not think this is

23 disputed, that Midland Heart is an unusual Housing

24 Association. It is not one that simply provides houses. It

25 also has focus on care and support services. So it is

41

1 providing services to disadvantaged people in various forms,

2 ex-prisoners and people with mental health difficulties and so

3 on. It is particularly damaging to an organisation of that

4 sort to associate it with slum landlords in the way that we

5 say the article does. It is also obviously damaging to the

6 Chief Executive of such a body to say or to imply that she is

7 profiting from the disadvantage. It would be damaging to any

8 Housing Association and any Chief Executive but this, as it

9 were, is a particularly sensitive victim. This is a body

10 which, if I can put it very crudely, is in this area and they

11 are trying to deal with the very problems which are exposed on

12 the "Benefits Street" programme and yet everything is being

13 reversed. They are being characterised as part of the problem

14 rather than part of the solution. That is something about

15 which they feel very strongly, and I am sure your Lordship can

16 understand why.

17 In terms of the case on harm, we have, if I can put it

18 this way, done our best. I have already indicated that, as a

19 matter of practicality, to produce evidence of harm is

20 something which is extremely difficult, but we have pleaded

21 three individuals who drew it to the attention of Mrs. Cooke.

22 She has also dealt with her family's reaction but I accept

23 that is a matter of feelings. If I get over this hurdle then

24 that can be taken into account. I am not suggesting that her

25 reputation in the eyes of her family has been damaged but,

42

1 obviously, that is something that is relevant to her feelings.

2 MR. JUSTICE BEAN: Yes. Potentially, that is part of damages at a

3 trial, if there were one, but it has nothing to do with

4 section 1.

5 MR. TOMLINSON: Yes, it has nothing to do with section 1. So, for

6 example, the fact that her mother reads the article and

7 becomes very distressed and rings her up is something that the

8 court can properly take into account when assessing damages

9 for her distress, but plainly her mother is not thinking less

10 of her because of the article, and similarly with other

11 relatives that are mentioned.

12 In relation to the second claim, to Midland Heart

13 itself, Mr. Price criticizes the way that the case is put as

14 essentially being speculative. Well, the difficulty is, as I

15 have said more than once, that it would be very difficult for

16 us to identify actual contracts lost and actual financial harm

17 caused. But the operation of Midland Heart depends on a

18 network of tenders, a series of contracts, which are, if I can

19 put it this way, reputationally-sensitive because in deciding

20 whether to give a particular Housing Association a particular

21 contract, reputation matters are bound to be taken into

22 account. Of course, it may be said that people granting

23 contracts are sophisticated individuals and they know that

24 Midland Heart is not actually tainted at all and is an

25 entirely proper and upstanding body, but in the real world it

43

1 does not always work like that. In the real world, people

2 say, "Well, I have heard some bad things about them". That is

3 what damage to reputation is. "I have heard that they are

4 associated with some dodgy landlords. Let us not deal with

5 them. Let us deal with someone else". I do not have to

6 establish actual contracts lost or actual contracts likely to

7 be lost. All I have to establish is the lowering of Midland

8 Heart in the estimation of people, of which one possible

9 reaction is a losing of contracts, but it may just be a

10 reluctance to deal and so on. My Lord, I have referred in my

11 skeleton to some of the evidence in relation to that and the

12 further information. If there are any issues that arise I

13 will deal with them in reply but I think your Lordship has the

14 general point.

15 Can I just say a word or two about the apology. It may

16 be useful to turn it up. It is in A2. That appeared in the

17 Sunday Mirror the following week. I have here a photocopy of

18 the relevant bit of the Sunday Mirror so that your Lordship

19 can see the prominence it had.

20 MR. JUSTICE BEAN: It is page 2?

21 MR. TOMLINSON: Yes. It is just perhaps more striking if your

22 Lordship looks at the copy of the newspaper from that day. It

23 is page 2, but for someone opening the newspaper, their eye

24 might not immediately fall on it.

25 MR. JUSTICE BEAN: Do you want me to say that their eye would be

44

1 drawn to page 3 and ignore page 2?

2 MR. TOMLINSON: For example, but it is relatively small in terms

3 of the position and low prominence. More importantly, the

4 point I make about it is as I have set out in my skeleton,

5 that it raises more questions than it answers. There is an

6 apology, "We did not intend to include them in the article

7 and we wish to apologise ... for our mistake". It says nice

8 things about them, about what they do, but what is the reader

9 to think in terms of what is the nature of this mistake? What

10 were they doing in that article if they are entirely above

11 board? What the Sunday Mirror have refused to do is to take

12 the additional step of saying words to the effect that they

13 are not slum landlords and they are not profiting from

14 disadvantaged people on benefits.

15 MR. JUSTICE BEAN: Does not the second sentence say they are not

16 profiting from their activities?

17 MR. TOMLINSON: It says they are not for profit and surpluses are

18 reinvested and they take their responsibilities very

19 seriously. But if someone read this and went back to the

20 original article, if they maintained, doubtless as many

21 readers do, an archive of the Sunday Mirror under their

22 kitchen table or wherever it is, you would think, why were

23 they there in the first place? What was the point?

24 MR. JUSTICE BEAN: On saying, "Why were they there in the first

25 place?", "They should not have been. It was a mistake".

45

1 MR. TOMLINSON: They say, "We did not intend to include them in

2 the article", which raises an interesting issue about

3 intention but, never mind. "We did not intend to include them

4 in the article and wish to apologise for the mistake". I

5 would have thought it is inevitable that less people read this

6 than read the article because of its lack of prominence but,

7 if they did read it, then what we say is that it gives rise to

8 a number of questions. The most fundamental of those is,

9 "You do not say that anything you said about them was wrong,

10 so why was there a paragraph about them in the article?

11 Someone must have prepared that paragraph, stuck it in the

12 article and then, by mistake, left it there". In short, it is

13 only a partial apology. If we are right about the defamatory

14 effects of the article, it is not an apology. It is not

15 saying, "Sorry, we made false allegations. Sorry, we

16 associated them with slum landlords". It is simply saying,

17 "Sorry, by mistake, we put them in the article".

18 MR. JUSTICE BEAN: Would that not just make it worse? This

19 apology does not remind the reader of the imputation which you

20 say is there. It says "we included them in our article and we

21 should not have".

22 MR. TOMLINSON: Your Lordship is right. It does not remind them

23 of the imputation but for anybody who remembers the article,

24 it gives the headline. It gives the "Millionaire Tory cashes

25 in on TV Benefits Street". So anybody who remembers the

46

1 article remembers the general theme. They will remember that

2 they are included in an article about that and will now say

3 that their inclusion was a mistake. But it does not say one

4 way or the other whether they are of a kind with the others

5 mentioned in the article. It simply says it was a mistake.

6 Why? The question is left open. Perhaps an over-analytical

7 or reasonable reader would say, "It could be a mistake because

8 they did not have the evidence to back up the allegations. It

9 could be a mistake because what they actually put in the

10 article was factually incorrect. It could be a mistake

11 because they do not own properties in the street". It could

12 be a mistake for all kinds of reasons.

13 What the claimants asked for, and what they were

14 refused, was a clear statement that they were not involved in

15 the activities castigated in the article. In the claimants'

16 estimation, that would have been something that would have had

17 a positive effect on restoring their reputation in a way that

18 this apology, in their estimation, does not, or only a partial

19 effect. Why does the Sunday Mirror publish an article,

20 including a paragraph written by one of its own journalists,

21 which they think is relevant and then change their minds?

22 There are all kinds of possible reasons, only one of which is

23 because the allegation is false.

24 My Lord, we, of course, accept that the apology has some

25 effect but it is not a complete answer. It is not a complete

47

1 cure for the damage to reputation. I accept, and I am sure

2 Mr. Price will make the point, that if you do a Google search

3 on "Midland Heart and Ruth Cooke" the apology comes up, and

4 the article does not because their name has been removed from

5 it. But reading the apology on its own without the article,

6 as any user of Google would, you are left in the dark. More

7 importantly, someone who has read the article and remembers it

8 and has not read the apology, that is where there is damage to

9 reputation. Damage to reputation has been caused and is

10 likely to be caused in the future.

11 So, my Lord, for those reasons, we say that the words

12 pleaded bear the meanings set out in paragraph 9 which are

13 defamatory of both claimants. We also say that on a proper

14 understanding of section 1 of the 2013 Act, the publication of

15 those words in the Sunday Mirror, and to the 4,000 readers on

16 the Birmingham Mail website of the same article, caused, and

17 is likely to cause, serious harm to the reputations of the

18 claimants.

19 My Lord, we say that both issues should be answered in

20 that way. Unless I can assist your Lordship further?

21 MR. JUSTICE BEAN: There is one other point. What does "likely"

22 mean?

23 MR. TOMLINSON: It is fair to say that "likely" means "in general

24 more likely than not". As your Lordship may recollect, the

25 word is analysed by Lord Nicholls in Cream Holdings. He says

48

1 it can have a flexible meaning and that it would defeat the

2 purpose of section 12 to construe it in every case as being

3 more likely than not. It is fair to say that he accepted the

4 primary meaning was more likely than not.

5 The court must find that on the balance of probabilities

6 past harm has been caused, or that on the balance of

7 probabilities it is more likely than not that future harm will

8 be caused.

9 My Lord, I have not said enough about the Birmingham

10 Mail. It was on the Birmingham Mail website on the same day.

11 Before it was changed online it was read by 4,500 people.

12 That is common ground. Obviously the point I should make, in

13 case it is not clear, is that Birmingham is an example of one

14 of those special readerships. Benefits Street is in

15 Birmingham and Midland Heart is operating in Birmingham.

16 Doubtless readers of the Sunday Mirror in Carlisle, Newcastle

17 or wherever would find this is no relevance at all, but the

18 most focused it is on the local community, the more likely it

19 is to cause harm.

20 Unless I can assist your Lordship further?

21 MR. JUSTICE BEAN: Thank you very much, Mr. Tomlinson.

22 MR. PRICE: My Lord, I was intending to deal with the law in

23 relation to meaning and section 1 together. Obviously section

24 1 will take a little bit longer than the conventional

25 principles on meaning, although there are a couple of features

49

1 of the conventional approach on meaning that I need to take

2 your Lordship to. I will then apply them to the facts.

3 There is a particular feature about this case, which is

4 that the claimants' claim is based on their inferential

5 inclusion in a category of private landlords who are motivated

6 by making money. What they say is, "When you read this

7 article and you come to this brief reference to us, you lump

8 in what has been said about Nischal and you lump in what the

9 MPs have been saying about private landlords because we are in

10 the article and therefore inferentially you assume that we are

11 one of those profit-making landlords."

12 Of course, profit making is the start point. It is the

13 profit motive which leads the dodgy landlords not to care

14 about the properties. That is how they make their money.

15 They get a large amount of money in and then they don't spend

16 anything. Why are they doing that? They are doing that

17 because they are motivated by making money. That is what

18 drives them. So it is an inferential inclusion in a

19 particular category.

20 A feature of this case is that if the ordinary reader

21 does not know that a housing association falls outside such a

22 category, then anyone who has any dealings or is in a position

23 to cause harm to the claimants will know that fact. Once you

24 know that they are a non profit-making organisation, you know

25 that when those MPs are making those generalised statements

50

1 about private landlords they are not talking about the

2 claimants. You know that Nischal is in a different category

3 to these claimants. That is a particular feature of this

4 claim, which explains the absence of any evidence of harm. I

5 will develop this submission in more detail later, but I do

6 need to stress the particular nature of this claim which one

7 does not find ordinarily.

8 It is because of this particular feature that the

9 difference between the common law test and the statutory test

10 actually makes a difference. I am assuming I fail on the

11 common law test.

12 I say that rather than raising the bar what section 1

13 does is provide an additional hurdle. The appropriate analogy

14 is a hurdle race. The claimant has to surmount certain

15 hurdles to get to the end where he, she or it is awarded

16 damages. Section 1 provides a further hurdle. The common law

17 provides its own hurdles, three of which are relevant to the

18 present claim. The first is the reasonableness of the

19 construction. In order to get to that defamatory meaning the

20 claimant has to show that it would be reasonable for the

21 article to be read in that particular way. That is Jeynes,

22 which stresses that the governing principle is reasonableness.

23 That is the first hurdle to get over.

24 The second hurdle to get over is even if you get to that

25 meaning you have to ask whether right-thinking members of

51

1 society would think the worse of the claimant. There may be

2 allegations that a certain section of society would take

3 against the claimant when they hear it, but that a right

4 thinking-member of society would not. That sets an ethical

5 benchmark which was relevant in the Thornton case. There Lynn

6 Barber, the author of the review said "in journalism we call

7 this 'copy approval' and disapprove". "We disapprove of it,

8 us journalists." Tugendhat J said, "It does not matter if

9 journalists disapprove of it. It does not matter if the

10 defendant disapproves of it and expresses her disapproval in

11 the words complained of. It does not even matter if the

12 claimant disapproves of it. I have to judge it by reference

13 to 'right thinking'."

14 The third hurdle is "generally", so there has to be a

15 sufficient consensus that the conduct imputed to the claimant

16 is culpable.

17 Perhaps I can take you to Thornton. That is in my bundle

18 of authorities at tab 8. Your Lordship can see the words

19 complained of in paragraph 7 on page 1988. "She also claims

20 that she practices 'reflexive ethnography', which means that

21 her interviewees have the right to read what she says about

22 them and alter it. In journalism we call this 'copy approval'

23 and disapprove."

24 At paragraph 21 Tugendhat J records my submissions, as

25 it happens. About half-way down: "And it would not make

52

1 right-thinking members of society generally think the worse of

2 Dr Thornton (the views of a section of a society, such as

3 journalists, being irrelevant). Or if it would, then it would

4 not do so to the extent necessary to surmount the threshold of

5 seriousness that is required. So it cannot be a personal

6 libel."

7 Tugendhat J accepts the point at paragraph 44, where he

8 talks about different people doing different things. Some may

9 disapprove but at the end of the day there has to be some form

10 of consensus unless there is a meaning of hypocrisy pleaded.

11 Say, for example, the allegation was, "You are making money

12 from renting out property". Say that was untrue and say the

13 claimant was somebody who was well known as a communist and

14 said that all property is theft, then that allegation could be

15 defamatory of him on the basis of hypocrisy. In other words,

16 in the Thornton case, if Dr. Thornton had said, "I have never

17 ever used copy approval; I think it is appalling", then the

18 hypocrisy meaning could run. But that was not alleged in

19 Thornton. Absent the hypocrisy meaning there was not a

20 sufficient societal consensus.

21 Finally, at paragraph 96 -----

22 MR. JUSTICE BEAN: I would like to read paragraph 44.

23 MR. PRICE: I am sorry; please do. (Pause for reading) If we go

24 to paragraph 98, could I ask your Lordship to read that. It

25 follows on from paragraph 44 on page 2010.

53

1 MR. JUSTICE BEAN: Paragraph 90 is the famous bit which

2 anticipated the new Act. We will come to that later.

3 MR. PRICE: Yes. I have taken it by point. I can make all my

4 points on Thornton now.

5 MR. JUSTICE BEAN: No; I am just bookmarking in my mind, as it

6 were, that we are going to come back to it.

7 MR. PRICE: At the moment I am just addressing the need for

8 societal consensus and that the thinking must be right

9 thinking before you castigate a claimant for the act imputed

10 to him, her or it. You can see at paragraph 98 how Tugendhat

11 J applies that principle to the facts of Thornton.

12 In order for an allegation to be defamatory one needs

13 the imputation of an act which would be regarded as wrong by

14 people who think in the right way, and there is a consensus

15 that it is wrong. It does not matter how it is described.

16 What does "making money from misery" actually boil down

17 to? If it does not impute the provision of sub-standard

18 housing it is not defamatory.

19 While I am on paragraph 98 it is probably best to look

20 at paragraph 96. I do not know if I can help your Lordship

21 more on the particular issue of "right thinking" and

22 "consensus"?

23 MR. JUSTICE BEAN: This bit of defamation law has been around for

24 eons, long before Jameel and long before the 2013 Act. The

25 tendency to lower the reputation of the plaintiff, as it used

54

1 to be, in the eyes of right-thinking members of society

2 generally. You do not have to show unanimity, but generally.

3 MR. PRICE: But also it has to be right thinking. That really

4 comes from Byrne v Deane and the (tape unclear). It was the

5 member of the golf club who was accused or reporting the club

6 to the police because diddler(?) machines were on the

7 premises. All the members took against him. They certainly

8 were not the criminal classes; they were members of a golf

9 club.

10 The previous dicta had said that you can't judge it by

11 reference to criminal classes, but Byrne v Deane went a little

12 bit further than that. It is not just a question of the

13 criminal classes; it is a question of right thinking

14 generally, which may be different from quite wide sections of

15 the population.

16 In fact, there is a case going to the Court of Appeal at

17 the moment in which I am involved for the defendant, where the

18 allegation is that the claimant made public that the

19 defendant, who was a member of an anti-racist organisation and

20 a black man, called another black man the 'N' word. The

21 allegation was that he made that public and then the

22 defendant, my client, resigned as a result. The claimant is

23 saying that he was not the one who made it public and it is

24 defamatory of him. One of the defendant's arguments is that

25 it is not defamatory to say that he made it public.

55

1 In that case on social media the claimant was branded a

2 sneak who had brought down this pillar of the community. The

3 argument that the Court of Appeal is going to consider is

4 whether what the claimant was accused of, even if he was

5 wrongly accused of it, actually wrong and wrong to the extent

6 that there would be a consensus in society that it would be

7 wrong. Byrne v Deane was brought forward in 2014. Byrne v

8 Deane was a case in the 1930s and will be considered in the

9 Court of Appeal.

10 In Thornton Tugendhat J referred to Myroft, which is a

11 trade union case. A trade union member had sought work in the

12 course of a strike. The suggestion was that that was not

13 defamatory. The judge -- whose name escapes me but it was a

14 first instance decision -- held that, yes, ordinarily, even if

15 you are a member of a trade union, you are entitled if you

16 want to to seek work during a strike. But this particular

17 plaintiff had voted for the strike and had spoken in favour of

18 the strike. Therefore it was suggested that he was a

19 hypocrite. That satisfied the consensus; the "generally" and

20 the "right-thinking" elements.

21 Quite often one sees the hypocrisy meaning pleaded,

22 sometimes artificially, where there is not the level of

23 consensus. I come back to the example of a communist who is

24 going around saying that all property is theft and then he is

25 falsely accused of renting property and making money from it.

56

1 There it would be a situation perhaps where the need to find

2 societal consensus could be satisfied by saying it imputed

3 hypocrisy to him.

4 MR. JUSTICE BEAN: Aren't you running together two concepts?

5 Stage one is to determine meaning. Is that meaning

6 defamatory? We can leave serious harm to one side for the

7 moment. Yes, if it would lower the reputation of this

8 claimant in the eyes of right-thinking members of society

9 generally.

10 In the example of the communist who turns out to be a

11 slum landlord or just a landlord, right-thinking members of

12 society would think, "What a hypocrite."

13 I can see the difficulty in the sneak-type case and of

14 course right-thinking members of society are not people who

15 make their living from burglary or whatever; of course. But

16 would right-thinking members of society generally think worse

17 of somebody who sneaks on his associates to the police? The

18 answer may not be obvious but that is the question.

19 I do not think those principles are in dispute between

20 you and Mr. Tomlinson; how could they be? I am not sure, when

21 Tugendhat J refers to putting forward a meaning such as

22 disloyalty or hypocrisy, there is a special type of case such

23 as a hypocrisy case or a disloyalty case.

24 The question surely is whether the meaning found to be

25 attributable to the words is something which lowers the

57

1 reputation of this claimant in the eyes of right-thinking

2 members of society generally.

3 MR. PRICE: It depends what you know about this claimant.

4 MR. JUSTICE BEAN: Go back to the landlord who is a communist.

5 If the landlord is not a communist but a prominent

6 Conservative, you cannot attach the hypocrisy meaning.

7 MR. PRICE: No. The relevance of it to the present case is that

8 the meaning, as it was originally put forward -- and we can

9 look at that in the bundle A at tab 8, which is the

10 correspondence, at page 1. The first letter is on 27th

11 January. It is a pretty short letter and my learned friend

12 took you to it. It sets out the chronology in the attachment.

13 Another letter was sent on 28th January, which is a letter of

14 claim.

15 About three-quarters of the way down it states: "The

16 clear meaning of this story is that Midland Heart, the housing

17 association, and Ms Cooke, its chief executive, make up part

18 of the 'string of well-off property owners' who are 'cashing

19 in' on the 'misery of James Turner Street', as you allege that

20 Mr Nishcal, Mr Saund and Ms Mosquito have done."

21 That meaning, that comment, is not defamatory. It

22 continues: "As well as being highly defamatory of our

23 clients, this allegation is also entirely false." The reason

24 it is entirely false, as is set out below, is because it is

25 not for profit, so how can it be within this category?

58

1 It is only when counsel is instructed a couple of pages

2 later that one gets the introduction of the sub-standard

3 meaning. What I submit is that without the sub-standard

4 meaning you have a non-defamatory allegation that has been

5 presented in a very unflattering way by the defendant in a

6 pejorative manner, in a disapproving manner. It is

7 effectively Lynn Barber saying, "in journalism we call this

8 'copy approval' and disapprove." In the Sunday Mirror, "We

9 don't like landlords who do this", this being making profit

10 from the misery of the residents.

11 Mr. Tomlinson says how can they be in the article if our

12 meaning is not right; what are they doing there? I submit

13 that they can be in there alone, assuming the ordinary reader

14 does not know that they are not for profit, because they are

15 making money from misery. There is no need, and it would be

16 unreasonable, for the reader to go a step further and to

17 conclude that their properties are sub-standard. It is only

18 when you cross that threshold and when the libel lawyers come

19 on to the scene that it becomes a defamatory allegation. That

20 is why I am referring to Thornton to illustrate the hurdle

21 that is already present along this race that a claimant must

22 go down; and that it is relevant to the present claim. The

23 claim falls at the first hurdle of reasonableness in terms of

24 interpretation because it is not a reasonable interpretation

25 to assume that the three properties that Midland Heart own on

59

1 that street are sub-standard. Assuming the ordinary reader

2 does not know they are non profit-making, the only meaning to

3 be derived is that they are in there because they are one of

4 these landlords who are making money from misery, the misery

5 clearly being the lives of those residents who are dependent

6 on state benefits.

7 MR. JUSTICE BEAN: You jumped to question 2 before question 1.

8 Question 1, surely, is what do the words mean?

9 MR. PRICE: Yes.

10 MR. JUSTICE BEAN: Question 2 is, is that meaning defamatory?

11 MR. PRICE: Yes.

12 MR. JUSTICE BEAN: First, tell me what the words mean?

13 MR. PRICE: I can make my submissions on that. I was intending

14 to go through the law but if it is helpful to your Lordship

15 now I can make those submissions. There is one further point

16 I do need to make on the law in relation to interpretation.

17 It was a point that came before your Lordship in Fox v

18 Boulter.

19 Clearly the test is by reference to the hypothetical

20 reasonable reader. What does that reader know? What can he

21 bring? He brings ordinary general knowledge. I submit that

22 an ordinary reader would know that a housing association is

23 something different from somebody like Nischal or the private

24 landlords referred to in general terms by the two Members of

25 Parliament.

60

1 My learned friend took your Lordship to the dialogue

2 between the PR for the second claimant and the journalist

3 prior to publication and suggested, "Well, this journalist

4 didn't appear to know what a housing association was;

5 therefore you can assume that vast numbers of readers wouldn't

6 know what a housing association is."

7 The question is one for your Lordship and I would submit

8 it is a matter of law. Your Lordship correctly stated the law

9 in the Fox v Boulter case. I will hand that up to your

10 Lordship. (Same handed) I have given one to my learned

11 friend. I think it is in Fox v Boulter where your Lordship

12 observes that it would be helpful just to read the article

13 without knowing anything. Clearly the less you know, the

14 better. In our practice we give out the article to members of

15 staff who know nothing about the case and without telling them

16 who either of the parties are. They know it is a libel action

17 so they are looking for inferences that could be drawn. Of

18 course, the ordinary reader -----

19 MR. JUSTICE BEAN: You cannot tell me what their reactions were.

20 It may inform your decision as to how you run the case.

21 MR. PRICE: I can make submissions. One submission could be,

22 "Actually if you know it is a housing association the piece is

23 a bit of a nonsense, because how can it be a housing

24 association and be profit making?" Another reaction could be,

25 "Well, what is it actually saying? It is only saying that

61

1 they are making money from housing benefit. Okay, that is not

2 defamatory. Is the person who owns the corner shop where they

3 buy their food from making money from misery in the same way."

4 It is not actually saying anything. They are not being

5 lumped in with Nischal and you are just reading too much into

6 it to get to that meaning. The approach of the claimants'

7 solicitor in the first letter was obviously the correct

8 approach and then the libel barristers get involved. I am

9 slightly straying from the point here. Of course, your

10 Lordship is entirely correct that the less the tribunal knows,

11 the better.

12 MR. JUSTICE BEAN: I have to pretend to be the hypothetical,

13 reasonable reader of the Sunday Mirror who knows nothing about

14 the law and reading the article once or perhaps twice but no

15 more than that.

16 MR. PRICE: You would have to have a reason to read it twice.

17 Fox v Boulter was a more specialist read and I think it was an

18 internet publication, where they would have to go to the

19 bother of clicking on it.

20 MR. JUSTICE BEAN: There was a TV interview as well. It was on

21 Sky News. You might see it again an hour later, but basically

22 you saw it once or read it on the internet once and that's it.

23 MR. PRICE: And you bring to your reading general knowledge. It

24 is paragraph 16 where your Lordship deals with this. Your

25 Lordship makes the distinction between a particular news story

62

1 that was running at that time, where your Lordship held that

2 you could not assume that the ordinary reader would be aware

3 of it, and general knowledge which are matters of universal

4 notoriety; i.e. matters which any intelligent viewer or reader

5 may be expected to know. I emphasise that; any intelligent

6 viewer or reader may be expected to know

7 The starting point -- and it is a question of law for

8 your Lordship -- is can the ordinary intelligent viewer or

9 reader be expected to know that a housing association, if not

10 not-for-profit, is somehow different from a private landlord

11 as described by the MPs and in terms of that type of private

12 landlord exemplified by Nischal. To be fair to Mr Nischal --

13 I have mentioned it in my skeleton argument -- he did make a

14 complaint to the PCC and there was an agreed resolution. It

15 was not a resounding vindication for him but it did result in

16 the article being removed permanently online. Up until about

17 three months ago the article was still there, albeit with a

18 reference to the claimants removed. It has now gone

19 completely.

20 Will people know when they see it is a housing

21 association -- whether it is capital 'H' and capital 'A' does

22 not really make any difference -- and will the reaction be,

23 "Well, it is a housing association so why are you putting it

24 in there because it is a bit of a nonsense"? You would have

25 to know what a housing association was. If you knew what a

63

1 housing association was you would say, "Why are you putting it

2 in with profit-making landlords; it is not profit making?"

3 Either the ordinary reader has that knowledge or he does

4 not have that knowledge. If he does not have that knowledge I

5 readily accept that you are in there with a category of

6 landlords making money; i.e. Saund the dentist, Mosquito and

7 the Police Commissioner. I still deny that it is defamatory

8 because it is not suggesting that their properties are

9 sub-standard. The very first question is, "Do you know what a

10 housing association is?" It is only if you do, where my

11 submission is that you look at it as something literal and you

12 might question it, that you could not possibly come away with

13 the meaning contended for by the claimants because that

14 meaning is premised on their inferential inclusion in a

15 category of landlords that they simply cannot come into.

16 If one looks how the meaning is pleaded, it is all

17 premised on that inferential inclusion. It is bundle A, tab 4,

18 paragraph 9(a) on page 4. "The Second Claimant, which is

19 owned or run by the First Claimant, is one of the

20 disreputable, well-off private landlords...." That is how you

21 get into the meaning. Because they are named in the article

22 it is suggested that you lump them in with a category. These

23 are "disreputable, well-off private landlords of rental

24 properties who make large amounts of profit, obviously for

25 themselves, or rake it in by letting out squalid and

64

1 sub-standard houses to people in receipt of housing benefit

2 and overcharging in rent, thereby making money from the misery

3 of James Turner Street residents and getting rich from

4 taxpayers' money".

5 If you know what a housing association is you don't put

6 them in that category. If you don't know what a housing

7 association is, the meaning that you get involves deletion of

8 "by letting out squalid and sub-standard houses".

9 MR. JUSTICE BEAN: Say that again. If you know what a housing

10 association is -----

11 MR. PRICE: They are out of any possible category of private

12 landlords. It falls at the first hurdle. When the MPs are

13 talking about private landlords they cannot be intending to

14 talk about a housing association. It is the imputed

15 intention.

16 Would your Lordship just flick back to the article?

17 MR. JUSTICE BEAN: Just before we do that, the approach to

18 meaning is that the claimants' pleaded case, never mind the

19 case in the correspondence ----

20 MR. PRICE: I can make bad forensic points about that.

21 MR. JUSTICE BEAN: You can make debating points or points in

22 argument about not taking the pleading meaning seriously

23 because it is not what they said first, but the law is that

24 the pleading meaning is a maximum.

25 MR. PRICE: Yes.

65

1 MR. JUSTICE BEAN: I cannot find anything worse than that, but I

2 have to say what the meaning is and it can be anywhere below

3 that or at best, for Mr. Tomlinson, exactly that; but it

4 cannot be worse than that.

5 MR. PRICE: Yes.

6 MR. JUSTICE BEAN: You are not obliged to plead, and in fact you

7 have not pleaded, what you say the meaning is. You can if you

8 want to, but you do not have to. That is the approach to the

9 pleading on meaning.

10 MR. PRICE: That is the correct approach. As it happens, we have

11 stated the meaning that we contend the words bear.

12 MR. JUSTICE BEAN: You can show me that in a minute. If some of

13 what is written in paragraph 9 is correct but I, as it were,

14 cross out bits of it or change bits of it, one then has to sit

15 back and say, "Well, is that a defamatory meaning?" The fact

16 that it is not 100% of what is contended for does not mean

17 that the claim fails.

18 MR. PRICE: No, unless the defamatory element is the bit that

19 goes.

20 MR. JUSTICE BEAN: Yes. If the meaning as found comes below the

21 line then the claimant loses.

22 MR. PRICE: Yes, and that is what we do submit. The parts that

23 make it defamatory are the squalid and sub-standard housing.

24 The overcharging is linked to the squalid and sub-standard

25 housing. A right-thinking member of society would not think

66

1 the worse of an individual or an organisation who receives

2 money from the Government merely because a newspaper says the

3 Government could be striking a harder bargain, as it were. It

4 is often said about lawyers. You get a list of what people

5 are being paid on state funding of criminal cases.

6 Right-thinking members of society generally will not think the

7 worse of those lawyers, even if the Government might get away

8 with paying them less and even if the Daily Mail describes

9 them in unflattering terms. A right-thinking member of

10 society focuses on the act itself.

11 If you are doing very well out of housing benefit as a

12 private landlord that is not defamatory, unless you are

13 failing in your obligations. They have to get to a meaning of

14 "sub-standard" before it becomes defamatory.

15 As clear as I can be, if the ordinary reader knows

16 anything about a housing association, you do not even get into

17 a profit situation. That is the circumstance where,

18 effectively, it just means what it says because a reader is

19 thinking, "Well, they should not be there in the first place."

20 If that is not right and if the reader thinks that the

21 second claimant is profit making, then it only goes as far as

22 their doing well out of housing benefit. It is not

23 defamatory. It has got to go that next stage, which we say

24 would be an unreasonable jump; that those three properties

25 that are referred to are sub-standard.

67

1 Then of course, even if you get there, it is not going

2 to have caused any harm because all the people who have

3 anything to do with the claimants will know that they are a

4 housing association and so it is bonkers that they were there

5 in the first place. Since the only defamatory allegation is

6 their inferential inclusion in the category of private

7 landlords that they should not be in, why should we think the

8 worse of them? It is not as if anything is being said about

9 those properties. They are only there because the reader puts

10 them into the category of private landlord that is criticised

11 in general terms by the MPs. Anyone who knows them knows that

12 they are not in that category. It is very different if there

13 is some more specific criticism, but the way that the meaning

14 determination works is that if the claimants are right on

15 meaning, this article is as defamatory of them as it is of

16 Nischal. It is clearly not as damaging of them as it is of

17 Nischal for a number of reasons, the most obvious one being

18 that everyone knows they are a housing association. The other

19 reason is that it is far more prominent as far as he is

20 concerned.

21 I do not know if that is a convenient moment, my Lord.

22 MR. JUSTICE BEAN: Yes; two o'clock.

23 (Adjourned for a short time)

24 MR. PRICE: My Lord, I was in the process of applying the relevant

25 legal principles to the facts in relation to meaning and I

68

1 have actually done that in my skeleton argument, page 15 at

2 the bottom, paragraph 53, where I also identify the meanings

3 that are contended for by the defendants. One is on the basis

4 that the ordinary reader knows what a housing association is

5 or at least if the ordinary reader does not know exactly what

6 a housing association is, knows that it is something different

7 from the private landlords out to make money described in

8 general terms by the MPs in the articles.

9 At paragraph 44 I make the point about housing

10 association being non-profit and that being known, certainly

11 perhaps more likely to be known to readers of the Mirror who

12 maybe are more likely to live in a housing association

13 property or at least know people who live in a housing

14 association property than other readers, insofar as one has to

15 make the distinction. I should add, of course, that this is

16 one of those binary issues, my Lord. Either the readers have

17 this knowledge or they do not.

18 MR. JUSTICE BEAN: The hypothetical reasonable reader.

19 MR. PRICE: Yes, but it falls within the common law either/or.

20 One cannot cater for some having the knowledge and some not

21 having the knowledge. Obviously if one went on to an innuendo

22 hearing, that would be different, but because I am contending

23 for the knowledge and I am the defendant, that would not

24 really help me, because if it was not within the ordinary

25 general knowledge then there would be readers who would not

69

1 understand housing associations in the way that I submit they

2 should do and that would be a problem for my clients on a

3 meaning determination, obviously subject to other points that

4 they can make. Whereas the claimant has the advantage that

5 even if he fails on the natural and ordinary meaning, if he

6 can show sufficient knowledge to make good his innuendo

7 meaning, he can succeed on that, but this is not an innuendo

8 case. This is a natural and ordinary meaning case, so it is

9 either the hypothetical reader that has knowledge or he does

10 not. I stress, it is not the dictionary definition that is

11 needed. It is merely enough to know that a housing

12 association is something different.

13 MR. JUSTICE BEAN: Supposing you are right. Is that necessarily a

14 point that is helpful to you? Suppose the hypothetical

15 reasonable reader knows something about housing associations

16 and knows vaguely that they are meant to be in this world to

17 do good in the housing field rather than to make loads of

18 money. Does that help you?

19 MR. PRICE: It does help.

20 MR. JUSTICE BEAN: Might not such a reader think, "These people

21 are stinking hypocrites. They are supposed to be in the world

22 doing good and here" (I note what you say about whether the

23 meaning includes that they are slum landlords) but at least

24 "they are making a fortune and the Chief Executive of these

25 stinking hypocrites lives in a very nice house in a very nice

70

1 part of the country."

2 MR. PRICE: Yes. There are two reasons I suppose why that is not

3 a realistic scenario on this case and the first one is the

4 easiest one. It is not pleaded as a hypocrisy meaning and it

5 is for the claimant to allege that and, as Tugendhat J.

6 recognised in Thornton, the claimant did not plead hypocrisy

7 meaning. In fact, it was her evidence that she would not

8 engage in copy approval, but that is not enough.

9 The second point is these hypocrisy meanings are

10 generally quite artificial and the answer to them is, "No,

11 people are not going to think you are liars, people are just

12 going to think that the allegation against you is untrue,

13 because they know you would not behave in that way". So the

14 reasonable reader, particularly of an inferential allegation

15 of this kind, where there is nothing specific about what they

16 are doing, would not lump them into a category in which they

17 do not belong, because that reader would know they do not

18 belong in that category of profit-making landlords, so why put

19 them in it? Yes, if there was something in the article that

20 showed that they were behaving in a way that a housing

21 association should not behave, then those meanings may come

22 into play and there may be independent defamatory meanings

23 that arise, but I do stress the distinctive feature of this

24 case, which is the whole of the claimant's case is based on

25 their inferential inclusion in a generalised category of

71

1 private landlord when nothing very much is said about them at

2 all and, in my submission, the reasonable reaction of somebody

3 who knows that a housing association does not fall within that

4 category is, "They should not be there" or "It is a piece of

5 colour".

6 I have set out three possibilities in paragraph 56

7 of my skeleton argument and these are the ones that my learned

8 friend thought were rather fanciful, but, of course, I make

9 these submissions on the basis of a knowledge as to what a

10 housing association is or a sufficient knowledge anyway and I

11 give a), b) and c) as possible reactions.

12 MR. JUSTICE BEAN: Your hypothetical reasonable reader who knows

13 about housing association, does he think to himself, "Any

14 suggestion that Midland Heart are making a profit from these

15 tenants must be nonsensical", because, as a matter of law,

16 housing associations are simply not allowed to or they never

17 do in any circumstances or is it more generalised and

18 thinking, "I thought they were supposed to be letting at rates

19 which only represent cost" or "I thought they were allowed to

20 make a profit but they have to plough back the profits into

21 the business or something"? What does the hypothetical

22 reasonable reader think?

23 MR. PRICE: I will answer. The point your Lordship makes is in a

24 sense positive on the reader starting off by including them

25 and then taking them away, as it were, and actually the

72

1 reality of it is they just do not get the inclusion in the

2 first place, because of who they are, so it is not a situation

3 where the reader says, "Oh, I have seen them appear in this

4 article, therefore I must assume that they fall into the same

5 category as the private landlords referred to earlier, but now

6 that I know that they are a housing association I then

7 withdraw them from that category." That is not how it works.

8 They are not in the category in the first place, because they

9 fall so far away from the description of the private landlords

10 in that they are not for profit and they are touchy-feely, if

11 I can put it in that way, in a way that Mr. Nischal is not,

12 who is a hard driven businessman, an individual private

13 landlord and the MPs are describing.

14 It is, of course, the imputed intention that matters.

15 If one goes to the words themselves and looks at exactly what

16 is being said by the MPs and at that point consider whether a

17 housing association falls into such a category, if one does

18 that and the answer is no, that is the correct approach, not

19 the approach that they are in and then they are out. They are

20 just never in in the first place on this single reading on the

21 train over breakfast.

22 What one has to ask, going to page 4 of the article,

23 page 2 of the bundle, is when Laura Sandys says: "This is a

24 big problem in my constituency", which happens to be in

25 Thanet. "Some private landlords don't care about the upkeep

73

1 of bricks and mortar. They're just interested in getting the

2 rent each month." There is a picture there of an individual.

3 "When the house becomes so dilapidated that it is virtually

4 falling down they just walk away having made a fortune." How

5 can that possibly relate to a housing association which

6 operates in a highly regulated environment. An ordinary

7 reader would at least know that it is a different type of

8 property owner to the one that is being described by the MP.

9 The housing association is just not going to let a house fall

10 down and walk away from it.

11 Similarly, when John Mann comments about private

12 landlords he said they are "making a killing from housing

13 benefits payments and often don't care at all about the

14 standard of the property they rent out. For them, it is all

15 about getting rich on taxpayers' money. The Government should

16 limit the amount of rent paid out in housing benefit. It

17 should be a fair amount per property. There's no way that

18 nearly £1,000-a-month is a fair market rent for a property in

19 such a poor condition. It's criminal."

20 Just pausing there, a separate point. My learned friend

21 said that the MPs were making general observations. Yes, they

22 were, but certainly relating to the Nischal case and when one

23 goes further down one can see a distinction between the £1,000

24 a month that he is charging and the probe which reveals a

25 string of well-off property owners, other property owners,

74

1 that is, who have been paid the maximum of £650 per month

2 which of itself puts them in a different category to Nischal.

3 That is a side point that I thought I should make as I was

4 going through it.

5 In terms of what an ordinary reader who knows something

6 about housing association would make of this, if one assumes

7 that that reader knows that a housing association is not

8 motivated for profit, it is not there to make the people who

9 own it rich, such a reader could not reasonably understand a

10 housing association to fall into that category or to fall into

11 the sort of category of landlords who behave in the way that

12 Nischal is alleged to have behaved. It is difficult to try

13 and pin down with precision the exact attributes of a housing

14 association that are within general knowledge and, in my

15 submission, it is not necessary to do so, because they do not

16 behave in the way that those MPs describe and nobody is going

17 to think that a housing association is the sort of landlord

18 that is being described there, if they know anything at all

19 about a housing association.

20 My start point is they are not going to start asking

21 detailed questions about the reason for the inclusion of

22 Midland Heart in the article at all. I accept that in this

23 exercise in logical positivism that we are engaging in now,

24 that is a question that you would get asked and I have an

25 answer to it if I need to, but, in my submission, it is not

75

1 the way that someone reads it. It is in and it is out and it

2 is gone and it is of no particular significance. It is

3 forgotten about.

4 In my submission, the starting point is does the

5 ordinary reader know anything at all about a housing

6 association that renders it different from the description of

7 Nischal and the private landlords referred to by the MPs and

8 then what does he do with that knowledge. I submit that

9 knowledge distinguishes them sufficiently so that the

10 inferential meaning on which this whole claim is based is not

11 derived by such a reader and could not be derived by such a

12 reader reasonably and the correct approach is not: Is the

13 inferential meaning made and then discounted? It is simply it

14 is not made at all.

15 May I just observe that all these points are made with

16 much greater force when one comes on to serious harm. They do

17 not get me home on meaning. It is just a piece of information

18 that appears in a newspaper which has some interest because

19 some people, and this is no disrespect to Mrs Cooke, who, I am

20 sure, is worth every penny of her income, but some people

21 might look at that and think, "Oh, that is interesting". It

22 is a comparison between what she earns and the tenants of the

23 housing association that she is the CEO of and it is

24 interesting possibly without searching for any particular

25 deeper meaning from it.

76

1 Unless I can help you further on the relevance of some

2 sort of knowledge of a housing association, I was then going

3 to move on to the next alternative submission on meaning,

4 which is if the reader does not really know anything about

5 housing association and assumes that it is profit making. The

6 basic submission there is that the three property owners who

7 are mentioned as being paid up to £650 a month would not be

8 lumped in with Nischal and the references of the MPs. It

9 would not be reasonable to do that.

10 I identify the meaning contended for by the defendants

11 in paragraph 57 in that scenario which is essentially the

12 meaning originally contended for by the claimants. I did

13 notice a decision of Tugendhat in Dell'Olio v. Associated

14 Newspapers where he seemed to regard that to be something

15 quite significant. There was a difference between the meaning

16 in the letter of claim and the meaning in the particulars of

17 claim, but in any event I accept at best it probably is a

18 forensic point and your Lordship simply has to judge it ----

19 MR. JUSTICE BEAN: It is not without value, but it is not a

20 technical point. The technical point is that the pleaded

21 meaning is the ceiling.

22 MR. PRICE: Yes. In 58 I deal with the points I made when we were

23 going through Thornton. When you strip out the pejorative

24 references to making money, all it really amounts to is that

25 the second claimant is making money from renting property in

77

1 an area of social deprivation to tenants who are in receipt of

2 housing benefit and the first claimant's salary comes from

3 those profits. So what? Why should that be defamatory?

4 MR. JUSTICE BEAN: The dentist, Mr. Saund, I do not know whether

5 he has brought a claim, but you would say he could not --

6 MR. PRICE: He could not.

7 MR. JUSTICE BEAN: -- because the focus on him is just, "He is

8 making a lot of money from it, so what, why shouldn't he?"

9 MR. PRICE: Yes and they know these properties and they have not

10 actually said anything about these properties and he has not

11 made a complaint, as it happens, nor has Yvonne Mosquito who I

12 suppose would be in the same category. Maybe they will be

13 getting in touch with their lawyers if this decision goes

14 against my clients, but they have not done so far and one

15 cannot really read anything too much into that. But, yes, I

16 accept that it must follow from my submissions that these

17 three are not reasonably to be put into the same category as

18 Nischal and I set out a variety of reasons why I submit that

19 that is so and those are set out in paragraph 60 and it is on

20 the basis that in order for it to be defamatory of them there

21 has to be an imputation that their properties are substandard.

22 This is where I do go into quite a detailed analysis, but that

23 is what seems to happen in defamation claims.

24 I suppose the biggest point is why would you assume that

25 they are substandard. First of all, does it look like the

78

1 Mirror knows anything about the properties? It does not say

2 what they are rented for, it does not look like they have

3 inspected them. One would have thought if they had inspected

4 them and there was something wrong with them they would have

5 said so. It sort of looks like they have not looked at them,

6 so why assume that they are bad?

7 My learned friend referred to properties in the street

8 being squalid. It is only one property that is being rented

9 out at £1,000 a month. Yes, the road is rundown, but that does

10 not mean that the properties are squalid and substandard. It

11 probably does not help for me to go through the various

12 points.

13 MR. JUSTICE BEAN: You certainly do not have to read them out.

14 You have set them out very helpfully.

15 MR. PRICE: "The misery of James Turner Street". That is perhaps

16 an important point, because the allegation is making money

17 from the misery of James Turner Street, which is a generalised

18 observation and quite clearly refers to the lifestyles,

19 because the article is full of generalised references to

20 lifestyles. In fact immediately before the words relating to

21 the claimants there is a reference claiming they have been

22 portrayed as scroungers and lowlife. There is only one

23 property that is alleged to be substandard and "making money

24 from misery" clearly relates to the lifestyles.

25 There is a discrete point relating to the first claimant

79

1 which applies at the meaning stage and also in relation to

2 serious harm and I have dealt with it in one go in paragraph

3 60.12 which is why assume that if the properties are

4 substandard she knows about it. Certainly, if you know that it

5 is a very large business with I think it is £1.5 billion asset

6 value of their properties, it is not reasonable to hold her

7 responsible.

8 MR. JUSTICE BEAN: They are different points, are they not? A

9 Chief Executive is unlikely to know about each individual

10 property, of course, but so what? If the claimants' meaning

11 is right, it seems to me whether Ms. Cooke knew about James

12 Turner Street, whether she had ever heard of it before the

13 television programmes and whether she knew that the housing

14 association had properties there is not much to the point, is

15 it? The Chief Executive can be held responsible in a moral

16 sense for what is going on in her company and cannot be heard

17 to say, "Well, I did not know about James Turner Street". The

18 response would be, "So what? If it was not James Turner

19 Street, it might have been Acacia Avenue or somewhere else.

20 It does not matter."

21 MR. PRICE: I do not want to labour the point, because obviously

22 this is on the basis that the second claimant has got home on

23 meaning, but I would just simply say this. Even if the second

24 claimant has got home on meaning, one still has to derive a

25 meaning that right thinking members of society generally would

80

1 think the worst of the second claimant.

2 One reaction would be, "Okay, these properties are

3 substandard, but is it reasonable to expect the CEO of the

4 company to know about it or to have taken steps before it was

5 drawn to her attention to remedy it?" It is probably a better

6 point in relation to serious harm, but I really do not want to

7 labour the point, because it only arises in the event that the

8 second claimant makes good its case.

9 MR. JUSTICE BEAN: Yes. It is just the point I am putting to you,

10 that it seems to me that knowledge of the specific houses or

11 the specific street or the specific tenants seems to me quite

12 immaterial if the imputation Mr. Tomlinson contends for is

13 that the Chief Executive allows these things to go on

14 generally. Whether it is at James Turner Street is neither

15 here nor there, I think.

16 MR. PRICE: I hear what your Lordship says on that and I do not

17 need to say anything further on that. That is where the

18 common law takes us.

19 MR. JUSTICE BEAN: Yes.

20 MR. PRICE: Where does section 1 take us that is different from

21 the common law? I have made the analogy with the hurdle race.

22 The claimant has jumped over the reasonable interpretation,

23 jumped over society of consensus and is in a position. When

24 one is seeing where section 1 gets us to, it is important to

25 see where the common law does not get us to and I set out

81

1 those points in paragraph 14 of the skeleton argument, page

2 5. This is where there starts to be clear blue water between

3 the common law and the notion of harm to reputation and the

4 extent of the clear blue water between the common law and any

5 harm test will depend upon the particular facts.

6 The start point which I set out at 14.1 is that it is

7 simply at common law the imputed intention of the publisher in

8 the mind of the hypothetical reader, if the readers know or

9 question the veracity of the imputed meaning then that is

10 irrelevant.

11 Then, the next point, the absence of knowledge going

12 beyond what is generally known. The reality is that the

13 people who are most likely to have a significant impact on the

14 claimants' reputation will have pre-existing knowledge of the

15 claimant going beyond what is generally known and that will

16 impact on ----

17 MR. JUSTICE BEAN: I am sorry, Mr. Price, you are obviously

18 reading from a paragraph.

19 MR. PRICE: My fault, my Lord. Page 5 of the skeleton argument.

20 The point I am trying to make here when we look at section 1

21 in the common law is where are the areas in the common law

22 where there could be clear blue water between what a claimant

23 has to prove to get to defamation and what he would have to

24 prove to get to defamation under a harm test. Obviously, the

25 factors vary depending on a particular case, but I thought it

82

1 was helpful just to set out the factors and why this does

2 involve a change.

3 The first one, as I say, is if the readers know that the

4 meaning is false, common law disregards that. If the readers

5 have some sort particular knowledge about the claimant that is

6 not known generally, that also gets disregarded, whereas the

7 sort of people who are likely to have a significant impact on

8 the claimants' reputation will often have some form of

9 pre-existing knowledge. It is a general point. It depends on

10 the facts of the case, but you cannot take into account in

11 negative and defamatory meaning if you are a defendant the

12 fact that some readers may have some pre-existing knowledge

13 which is not generally know that would impact on whether they

14 believe or question the allegation that is conveyed through

15 the common law test.

16 14.3, in my submission, is a very significant point

17 which is touched on earlier. You read it once and that is the

18 end of the process. You possibly come back to it, but you do

19 not reflect on it in any particular way and this is important

20 in a case where there is a passing reference in a long article

21 if you have no particular interest or knowledge of the

22 claimant. I would submit that you would be less likely to

23 draw an inference, but I am presuming that we have lost on the

24 inference point. The inference is drawn, but the article is

25 forgotten five minutes afterwards.

83

1 MR. JUSTICE BEAN: The paragraph is forgotten.

2 MR. PRICE: The paragraph is forgotten, yes. The name is

3 forgotten. Anyone who does not know Midland Heart if you ask

4 them in ten minutes' time what is the name of the company that

5 featured in the middle of that article, they are going to

6 forget about it. It would have no significance to them.

7 Lord Diplock made this observation in Slim. It might be

8 worth going back to Slim, because it is the main statement of

9 the artificiality of the common law's process of ascertaining

10 meaning and it is in my authorities bundle, tab 7, page 171D.

11 If I can simply ask your Lordship to read from D to F.

12 (Pause.)

13 MR. JUSTICE BEAN: That is putting in far grander language what I

14 said to Mr. Nicklin in Fox v Boulter that maybe one should

15 just give it to the judge who reads it once, writes down what

16 it means and that is the end of the case.

17 MR. PRICE: Yes. The passage has been quoted on numerous

18 occasions about the artificiality of tort and, of course, the

19 artificiality of tort is one of the reasons why Parliament

20 felt the need to get to grips with it.

21 From the defendants' perspective, it is not only

22 unfortunate that the artificiality is more likely to lead to

23 the construction which has an adverse meaning, a defamatory

24 meaning is more likely from the exercise in logical

25 positivism, because when the defendant turns round and says,

84

1 "Some will just read through it and they won't take much

2 notice of it and they won't draw the inference, it does not

3 really matter", then the response would be that that is

4 ludicrous.

5 The defendant loses out through such a process, but

6 perhaps the most significant way in which he loses out is once

7 that meaning has been derived, it is banked. That is it. It

8 is there almost forever when one comes to assess damages. One

9 cannot factor in that the overwhelming readership of a

10 newspaper will have forgotten about the inferential meaning if

11 they have no particular interest in the claimant or knowledge

12 of the claimant and if it is a passing reference in a much

13 longer article.

14 MR. JUSTICE BEAN: Yes, but there is no authority, is there - at

15 the moment we are on the common law - for imposing a sort of

16 memory test that if somebody is mentioned in an article that

17 you then, as it were, take the newspaper away and ten minutes

18 later or half an hour later you say, "Now, Miss Claimant,

19 (sic) tell me the name of the housing association that was

20 mentioned in the article" and she will say, "I have not got

21 the slightest idea".

22 MR. PRICE: Yes.

23 MR. JUSTICE BEAN: Particularly if the name meant nothing. I am

24 sorry, the reader, not the claimant. "Now, Miss Hypothetical

25 Reasonable Reader, what was the name of the housing

85

1 association that was mentioned in the article?" Of course,

2 she will not know unless she happens to have heard of it, but

3 if you change the facts so that later in the week she comes

4 across Midland Heart, for whatever reason, and thinks, "Hello,

5 I have read about them recently" and it was in the context on

6 Mr. Tomlinson's interpretation of an article about dodgy

7 profiteering, squalid landlords. It must be that sort of

8 occasion on which damage to reputation is suffered. It is not

9 a question of a memory test of a name that you had never heard

10 of before.

11 MR. PRICE: No, the test is the internet. It is not the person

12 who read the newspaper. In my submission, that person will

13 not remember Midland Heart in a week's time and it is also

14 fanciful. It is the internet that matters now and that is why

15 this case is so different and the grapevine and Cairns on

16 which Mr. Tomlinson relies actually massively supports my

17 clients' case, because it shows that it actually is not so

18 difficult as you think to show evidence of harm to reputation.

19 If one can have a look at Cairns, which, of course, would be

20 familiar to your Lordship, it is in my learned friend's bundle

21 of authorities. The relevant passage is at paragraph 27. One

22 has to look at this fairly carefully. "Mr Caldecott QC

23 contended that with allegations of this scandalous nature it

24 is likely nowadays that word will 'percolate' by way of the

25 Internet," (the internet leaves a trace) "and particularly in

86

1 this case among those interested in cricket – not least

2 because of the responsible position held by Mr Modi and the

3 apparent authority of his words. Dealing with it generally,

4 we recognise that as a consequence of modern technology and

5 communication systems any such stories will have the capacity

6 to 'go viral' more widely and more quickly than ever before.

7 Indeed it is obvious that today, with the ready availability

8 of the world wide web and of social networking sites, the

9 scale of this problem has been immeasurably enhanced,

10 especially for libel claimants who are already, for whatever

11 reason, in the public eye. In our judgment, in agreement with

12 the judge, this percolation phenomenon is a legitimate factor

13 to be taken into account in the assessment of damages" and

14 possibly could be a legitimate factor to take into account in

15 the assessment of serious harm, I would accept, but there will

16 be evidence of this.

17 As I understand it, Mr. Modi was tweeting before the

18 trial the pleadings in which he was justifying and by that

19 stage I think he had a huge number of followers. Obviously,

20 it is a completely different case, because it is a single

21 specific allegation, extremely serious, of great interest to

22 the people who read it. It is a very dramatic allegation and

23 it is a classic case for showing why it is not a numbers game

24 and why a publication to a small number of people who matter

25 can be far more serious than a passing reference in a

87

1 newspaper article.

2 I make the point in paragraph 35 of my skeleton

3 argument, picking up on this, which is on page 10. I just ask

4 you to read paragraph 35 rather than me reading it out.

5 MR. JUSTICE BEAN: Yes.

6 MR. PRICE: If you look at the witness statements of the first

7 claimant, Mr. Foster, it is notable just how many people

8 interact with the second claimant in so many different ways

9 and not one peep, not one mention, not one tweet, other than

10 the three professional contacts. There is a whole website

11 that is dedicated to having a pop at the second claimant that

12 appears on the front page of a Google search. It did not even

13 mention it.

14 The first claimant refers to all the employees that they

15 have got and if they lost faith in the second claimant it

16 would be very bad. No employee seems to have mentioned this

17 and there clearly would be a record if there had been. There

18 is no re-tweeting of the article. It is not very hard in the

19 age of the internet to provide evidence of harm. All that has

20 changed is that the channels are not underground any more and

21 the springs are not hidden. Yes, they can get contaminated

22 and there can be percolation, but you will see it. Why have

23 you not seen it in the present case? Obviously because anyone

24 who knows the second claimant knows it is rubbish to put them

25 in the article. It is a nonsense to put them in the article

88

1 and anyone who does not is not going to be interested in it

2 and on the Mirror it is offline almost immediately.

3 Newspapers are pretty prompt at taking things offline when

4 they get a complaint. Here was a situation where it was so

5 obviously wrong for it to be online and for it to have been

6 published that the article was amended, I think, around nine

7 o'clock in the morning.

8 The online publication of the Sunday Mirror is not

9 complained of. We know that Mr. Chipp when he tried to find

10 the article on that Sunday morning could only come across the

11 amended version. It had come and gone. This really is an old

12 fashioned case of a newspaper article being fish and chip

13 paper.

14 If one accepts that the majority of readers of a

15 newspaper article who are not interested and do not know the

16 person are going to forget about it ten minutes afterwards. I

17 do respectfully take issue with the suggestion that even a

18 week later, which is quite a hypothetical situation, they

19 happened to crop up and then they remembered the reference.

20 In my submission, once it is gone from the mind, it has gone

21 from the mind.

22 This appalling vista that Mr. Tomlinson paints of

23 claimants having to show memory tests really does not exist,

24 because it is all out there on the web and anything that has

25 caused harm will have a presence on the web in terms of a

89

1 national newspaper article. Of course, there may be more

2 specific publications - a serious allegation made about an

3 employee to an employer. That can cause serious harm,

4 obviously. But the case that is being put forward today is

5 essentially if it is in a national newspaper, you are over the

6 hurdle. One of the arguments in support of that is that it is

7 very difficult to prove harm and the response to that is, "No,

8 it is not, because if anything is in a national newspaper and

9 it is going to cause some harm, there will be a percolation

10 effect that will be visible in the age of the internet, which

11 is what the Court of Appeal were quite rightly talking about

12 in Cairns v. Modi.

13 It is legitimate and, in my submission, an obvious point

14 to make in a newspaper article that if none of this had

15 happened, not a re-tweet, not a telephone to the customer

16 helpline, not a staff member questioning, there is nothing,

17 where is the harm?

18 Can I just come back to 14.4 on page 5. This is another

19 example of how the common law approach to meaning has clear

20 blue water from the issue of harm, particularly with

21 inferential meanings. If a reader derives an inferential

22 meaning on a first reading, if that reader is minded to act in

23 an adverse way towards the claimant, surely such a reader is

24 going to think about it a little bit more carefully than the

25 ordinary reader who just looks at it once. Certainly, if the

90

1 action is going to be seriously adverse, let us say somebody

2 decided not to award a tender that a claimant would otherwise

3 be suitable for because of some passing reference in a

4 newspaper article that bears an impression, but it does not

5 say anything specific about the claimant, is that person not

6 perhaps going to pause or at least raise the matter with the

7 claimant before doing something drastic? These are

8 generalised observations, of course, but it is in the context

9 of what section 1 is actually doing.

10 Finally, I make the binary point that either the

11 hypothetical reader draws the inference or he does not, so you

12 are allowing in under the common law test a lot of people who

13 will not draw the inference. Mr. Tomlinson observes

14 correctly, yes, but you are also putting out of the equation

15 people who will draw the inference, but we have already got

16 that, so that is ready in the defendant's favour in this

17 balance between protection of reputation and freedom of

18 expression that has to be held by the law. The law already

19 recognises that, but Parliament has decided to go further.

20 Where has it gone to? It has gone to the harm test in section

21 1. In my submission, before one decides whether it is a

22 modest or a big leap, one should look at what it actually says

23 and what the consequences of what it says lead us to, because

24 the start point is the wording that Parliament has chosen to

25 adopt.

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1 Just for the avoidance of doubt, it excludes trivial

2 claims. Even if it is a modest, a tiny little raising of the

3 bar, in my submission, on the facts of this case the claimants

4 cannot surmount the bar. But the start point must be to look

5 at what the bar actually entails, or the hurdle, because there

6 is a further hurdle down the track. Before I go there I

7 should just say a little bit about context.

8 MR. JUSTICE BEAN: I am getting a confused picture about whether

9 the relevant event is the high jump or the hurdles. Maybe it

10 is a semantic point, whether one calls it raising the bar or

11 putting in another hurdle?

12 MR. PRICE: With respect, I think it is important to describe it

13 as a hurdle because it is a different analysis. There is a

14 series of hurdles and now there is one more. The trouble with

15 the common law, as far as the defendant is concerned, is that

16 a tendency is sufficient. Thornton just requires a tendency.

17 In Jameel, there is no equiperation in the Jameel jurisdiction

18 between an absence of harm and an abuse of process. You

19 cannot, as a Jameel defendant, say there has been no harm and

20 therefore it is an abuse of process. That does not work. The

21 claimant can proceed just for the purposes of vindication. In

22 any event, the precise ambit of the Jameel jurisdiction is not

23 really relevant because Parliament has put in this hurdle and

24 one has to look and see what it entails. It is a blanket

25 rule. It applies to all defendants, no matter how big they

92

1 are, no matter how nasty they are. That is what Parliament

2 has decided. The thing about a blanket rule is that it

3 creates an environment in which freedom of expression can

4 better thrive. That was why Tugendhat J raised the bar in

5 Thornton because the availability of substantive defences to

6 good guys is not enough protection because it takes quite a

7 lot of money to establish who the good guy is. So you need a

8 blanket hurdle right at the beginning of the claim. That is

9 clear. If your Lordship is worried about all these newspapers

10 libelling people with impunity, it was made in the context of

11 Leveson LJ's recommendation and report, a tougher regime on

12 the media, and that was part of the consideration. Already,

13 the PCC Code requires newspapers to correct false allegations.

14 One might think it is odd that a person can get substantial

15 damages without any evidence of harm, let alone serious harm,

16 or one might not.

17 I do not know if your Lordship has seen Lady Hale's

18 observation in Jameel which I have referred to in my skeleton

19 argument, at the top of paragraph 7. Some people might think

20 it is odd and some people may not. It does not really matter

21 because Parliament has decided to impose the hurdle.

22 So what does it mean? It breaks down into two elements;

23 either has caused serious harm or is likely to. One is in the

24 past tense; one is in the future tense. What is the date? It

25 has to be the date of the assessment, the date of the

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1 determination that your Lordship is making now. "Has caused"

2 requires proof, possibly by inference, but proof on the

3 balance of probabilities, that harm has been caused and that

4 your Lordship is willing to characterise that harm as serious.

5 "Serious" was chosen by Parliament to go beyond substantiality

6 to raise the level of the next hurdle along the race.

7 MR. JUSTICE BEAN: It was never totally clear what "substantial"

8 meant.

9 MR. PRICE: No.

10 MR. JUSTICE BEAN: In that there would be announcements in the

11 sport feature, "My client has accepted substantial damages in

12 satisfaction of a cause of action", and the general public

13 were not told what "substantial" meant. It meant more than

14 nominal but was it £1,000, £10,000 or £100,000? They did not

15 know. I do not think it was ever defined in the authorities.

16 MR. PRICE: No. Sometimes it is £1,000. I do remember a number

17 of years ago where I think it was Drake J actually demanding

18 to know what the damages were before he allowed reference to

19 "substantial" in the court statement. But "serious" brings

20 with it some notion of adverse consequence. It accepts that

21 you could have harm to your reputation but you still cannot

22 bring a claim. So, in my submission, "serious" brings with it

23 some form of adverse consequence. Whether it is tangible or

24 not is another issue but there has to be some form of adverse

25 consequence which, in practice, means that people are thinking

94

1 the less of you in a way that impacts on you negatively.

2 So that is actual serious harm or past serious harm

3 which is likely to cause, requires the judge, to look to the

4 future and reach a conclusion as to whether this serious harm

5 is more likely than not going to be caused at some unspecified

6 future date. My learned friend has conceded more likely than

7 not and that it relates to the future. Given that is the

8 case, I probably do not need to say very much about what is in

9 Gatley, but since it is there and my learned friend has

10 referred to it I should do so.

11 MR. JUSTICE BEAN: You have set it out in your skeleton. I think

12 in the light of what Mr. Tomlinson said about "likely" he is

13 not relying on what was said in Gatley, so that is that

14 really.

15 MR. PRICE: Then I will jump through to paragraph 29 on page 9.

16 Let us take a situation where there is no threat of future

17 publication. If no actual serious harm has been proved at a

18 determination six months after publication, how is a claimant

19 going to establish that future serious harm was more probable

20 than not? It seems to be very difficult to do that. That is

21 just as a matter of ordinary common sense because the

22 determination will take place a number of months afterwards.

23 There has not been any particular attempt in the present case

24 to show some sort of likely, more probable than not, future

25 harm. That is one of the reasons why we were seeking some

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1 sort of particularity on the pleaded case because of the

2 distinction between past and future. It is difficult to see

3 how this article, if it has not caused serious harm by this

4 stage, can possibly do so in the future when there is no trace

5 of it, when the apology comes up very easily. I will deal

6 with the apology in a little bit more detail when I need to

7 but it cannot be said that the apology is defamatory. So if

8 the claimant cannot rely on the risk of future harm, the only

9 thing that is left is that serious harm has occurred. That is

10 an objective matter for the court. So the claimant's

11 perception is irrelevant at every stage of this process. As

12 someone who has acted for claimants for a number of years, it

13 is an entirely human reaction to feel that something has

14 caused very serious harm to your reputation, particularly in

15 the immediate aftermath of its publication. But if the court

16 starts admitting evidence or giving consideration to such

17 concerns, then these determinations will become much longer

18 than they need to be. Yes, of course, the claimant can put

19 forward primary facts to invite the court to infer that

20 serious harm has been caused but what is not acceptable is for

21 expressions of concern or reasonable grounds to suspect to be

22 put forward because they cannot satisfy the statutory test.

23 MR. JUSTICE BEAN: On "likely to cause in the future", it is

24 almost impossible to prove actual evidence. By definition

25 they are talking about something which is or is not more

96

1 probable than not as a future event. How would you show that

2 someone is likely to sustain serious harm to their reputation?

3 MR. PRICE: If they have not sustained it already?

4 MR. JUSTICE BEAN: Yes.

5 MR. PRICE: It may be quite difficult.

6 MR. JUSTICE BEAN: I appreciate the way you put paragraph 29, but

7 that cannot be a rule, otherwise you are rewriting the

8 statute.

9 MR. PRICE: No, no rule. Of course there can be circumstances,

10 particularly if the article is still readily available

11 on-line. I think there is an example given maybe in one of

12 the textbooks of the possibility of some scandalous allegation

13 that is on an obscure website getting picked up by the

14 mainstream media in some way. That might, for example, be a

15 scenario where the court could perhaps lower the "more likely

16 than not" test because it is a flexible test. My learned

17 friend has accepted that on a case such as this, where there

18 is not really any threat of future publication and it is a

19 "more likely than not".

20 If one goes to Cream, which is in my authorities bundle

21 at tab 2, your Lordship is probably familiar with Cream, I

22 would imagine.

23 MR. JUSTICE BEAN: Yes.

24 MR. PRICE: Your Lordship can see from the headnote that the court

25 can depart from the "more probable than not" test,

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1 particularly if the risk it eventualises is particularly

2 grave. So one could have a particularly grave outcome and a

3 risk that could not be established as perhaps more likely than

4 not. In those circumstances, the claim could be allowed to

5 proceed. It is to be remembered that it is really just an

6 alternative. The libel industry has seized upon "likely" as

7 the evidence that the bar has not been raised very high

8 because they are interpreting it as "was likely", "is likely

9 to have been caused". It is a looking back exercise, like

10 "calculated". But once it is accepted that it is a future

11 looking exercise, it does become quite difficult to establish,

12 although there will be meritorious cases where it can be

13 established. Really, the prime question at a determination

14 six months down the line is whether serious harm has been

15 caused. "Likely" is not a sort of substitute for a lesser

16 form of past harm.

17 Turning to the explanatory notes, the relevant bit is

18 set out on page 8 of my skeleton argument, paragraph 24. It

19 says, "the provisions extend to". It is another option. But

20 the main test is serious harm having been caused. That has to

21 be the main focus. Of course, there will be cases where

22 "likely" comes into play but it is future "likely".

23 It is agreed that injury to feelings is discounted. So

24 the focus really has to be on what is meant by "serious harm

25 has been caused". I address that at paragraph 33 of my

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1 skeleton onwards on page 9. I think I have made the point

2 already that there has to be some adverse consequence for it

3 to be serious. Whether those are tangible is another matter,

4 but I do submit that if there has been no tangible adverse

5 consequence six months down the line, it is not acceptable

6 just to say you can infer that there has been because we live

7 in a world where harm is now evident. Also, one would have to

8 look quite carefully at the nature of the allegation and the

9 nature of the claimant and draw the inference. One cannot

10 just say, "It is a media publication. It ticks the boxes as

11 far as the common law determination of meaning goes.

12 Therefore, it must have caused harm".

13 Can I take your Lordship back to Hansard and the passage

14 that my learned friend referred to.

15 MR. JUSTICE BEAN: Yes.

16 MR. PRICE: It is in his bundle of authorities.

17 MR. JUSTICE BEAN: Yes, number 3.

18 MR. PRICE: Yes. I do stress that one has to look at the words,

19 and the words are clear, but since reference has been made to

20 Hansard I do not know what view your Lordship will take of it.

21 MR. JUSTICE BEAN: You both made some reference to Parliamentary

22 material. I am aware of the traditional rule against Hansard.

23 I think there was force in the partial recantation of Pepper

24 v. Hart and Lord Hoffmann some years on saying that nine times

25 out of ten you look at it and it is absolutely useless. I

99

1 suppose I should declare that on the day that Pepper v. Hart

2 was published I wrote a letter to The Times, as a junior

3 barrister, which was published, saying that I thought it would

4 be very unfortunate if the result was legislation by speech,

5 and that is still my view. But it is right that in cases of

6 ambiguity you can look at what the promoter of the bill said,

7 if it helps, and generally you can look at material such as

8 explanatory notes or, in this case, the Select Committee

9 Report on the draft bill to see what was the mischief that the

10 legislation was aimed at.

11 MR. PRICE: Yes.

12 MR. JUSTICE BEAN: That is about as much use as one can make of

13 it.

14 MR. PRICE: Yes. I do submit that it is not ambiguous.

15 MR. JUSTICE BEAN: Yes, quite, the usual form. It is not confined

16 to defamation cases. One side says, "My construction is

17 obviously correct and you do not need to look at Hansard".

18 The other side says, "On the contrary, my construction is

19 obviously correct. You do not need to look at Hansard but in

20 case you think it is ambiguous you can."

21 MR. PRICE: Yes, but the only element of ambiguity contended for

22 by my learned friend is the word "serious". It is a word that

23 is used in other statutes, in fact, "serious harm", to "very

24 serious consequences". I have put a couple of references in

25 the skeleton argument. The statutory provisions are in my

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1 bundle. There is serious injury to one's person, that level

2 of harm. Would it be helpful to briefly refer to those?

3 MR. JUSTICE BEAN: Yes. I am not sure that the criminal statute

4 analogies are very helpful, partly because, with respect,

5 Parliament has developed a habit of saying that certain

6 sentencing powers are available in respect of serious offences

7 as set out in the schedule. Then you look at the schedule and

8 they are not terribly serious at all. But since that is the

9 incorporated definition, it is a shorthand way of saying "an

10 offence listed in the schedule", but that does not help us

11 here. For example, grievous bodily harm, really serious

12 bodily harm, that is a long way away from the present case, is

13 it not? I do not know. By all means show me if you think

14 they will help.

15 MR. PRICE: My Lord, I will not. I will simply observe that any

16 personal injury is going to have an adverse consequence,

17 whether it is serious or not. Somebody thinking the less of

18 you for a short period of time is not going to have an adverse

19 consequence. In fact, someone thinking the worse of you will

20 not have an adverse consequence until it actually impacts on

21 your life in some way.

22 MR. JUSTICE BEAN: Yes, but the phrase is "serious harm to

23 reputation".

24 MR. PRICE: Yes.

25 MR. JUSTICE BEAN: Of course, it has been part of the argument

101

1 about defamation damages for years that you compare them with

2 personal injury damages as set out in the JSB guideline books.

3 How can you say that any damage to reputation compares with

4 death from mesothelioma or rendering a claim of paraplegic and

5 so on? But that is not the question. The question is, what

6 is serious alarm to reputation? To take an obvious example,

7 to say falsely that somebody is a sex offender is plainly

8 serious alarm to reputation. Some might say it is still a lot

9 better than losing a leg, and no doubt it is, but that does

10 not help you, does it?

11 MR. PRICE: Yes. That would be a case where you could perhaps

12 infer it but the likelihood is that if it is in a national

13 newspaper it will be tangible in some way. Yes, of course, I

14 accept that. I think the real issue here is what is the

15 difference between "harm" and "serious harm" to reputation.

16 MR. JUSTICE BEAN: Yes.

17 MR. PRICE: At what point does the fact that people think the

18 worse of you become serious? That was the word that

19 Parliament chose, having rejected a word such as

20 "substantial".

21 With that in mind, before I come on to Lord McNally, it

22 is just worth observing Lord Browne on the first page, the

23 second paragraph. It is quite clear that it is the

24 restriction of freedom of expression that is one of the

25 drivers behind this Act. "We, on these benches, support the

102

1 modernisation of our defamation laws as we said at the second

2 reading ----"

3 MR. JUSTICE BEAN: Well, hang on a moment! This is not the

4 promoter of the bill.

5 MR. PRICE: No.

6 MR. JUSTICE BEAN: The rule against Hansard surely survives to

7 this extent, that in terms of debate you can only look at what

8 the promoter of the bill says about it, or the mover of an

9 amendment which is passed, but not what the mover of an

10 amendment which is rejected says. That is his opinion.

11 MR. PRICE: No. There is definitely a statement that would fall

12 within the Pepper v. Hart exemption relating to the purpose of

13 the Act being to ----

14 MR. JUSTICE BEAN: It may be in the report of the Select Committee

15 on the draft bill, is it?

16 MR. TOMLINSON: But they are not promoters of the bill.

17 MR. JUSTICE BEAN: No, but this is the mischief rule. What can

18 you look at to see what was the reason for introducing the

19 legislation? The answer to that has always been a broader

20 range than what you can look at for the purposes of

21 interpretation of the statute itself.

22 MR. TOMLINSON: My Lord, I entirely accept that and perhaps the

23 obvious place, as Mr. Price put it in his bundle of

24 authorities, is the consultation which comes from the

25 promoters of the bill. It is tab 17.

103

1 MR. PRICE: I am most grateful. It is the second paragraph, my

2 Lord. At that point, it may just be helpful to make a note of

3 Thornton, paragraphs 61 to 63, because Thornton is mentioned

4 in the ----

5 MR. JUSTICE BEAN: Yes.

6 MR. PRICE: I need not go to it but explicitly the reason for

7 setting the threshold of seriousness is to protect freedom of

8 expression by having a higher barrier at the pre-defence

9 stage, and that is clearly what section 1 is directed to.

10 Coming back to tab 3 of my learned friend's bundle, Lord

11 McNally, it is quite clear that he is not trying to predict

12 particular circumstances in which the court will find the

13 hurdle to be surmounted or find it not to be surmounted. The

14 attempt to put the extent of publication as a specific factor,

15 which would be much more likely to impact on newspapers, was

16 rejected. When Lord McNally talked about the Mardas case, he

17 said -- we are now at the top of the fourth page, the

18 right-hand side -- "A few dozen is enough." That is a

19 reference to the Mardas case where there were 177 publishees.

20 When he gives that as an example, he makes it clear that

21 although he is referring to it the extent of publication is

22 only one of a wide range of circumstances which might be

23 relevant to whether the claimant has suffered serious harm.

24 Then the next paragraph reads: "As well as influencing how

25 the courts approach these cases, we consider that the

104

1 introduction of a serious harm test would have an important

2 impact in discouraging claimants from bringing trivial claims"

3 -- I will come back to "trivial" -- "When claimants are

4 considering whether to bring an action they will need to ask

5 themselves whether the harm that they believe they have been

6 caused is really serious. An advantage in using this term is

7 that it is in common usage. We think that this is likely to

8 make many claimants think twice about bringing proceedings."

9 That phrase, "they believe they have been caused is really

10 serious", the harm that they believe they have been caused is

11 really serious, encapsulates two points. They may believe

12 that the harm has been caused, but has it? If it has been

13 caused, is it really serious?

14 MR. JUSTICE BEAN: I think, with respect to the Minister of State,

15 the suggestion they will need to ask themselves whether they

16 believe the harm they have been caused is really serious is an

17 unhelpful test.

18 MR. PRICE: It does reflect the realities of defamation litigation

19 which is that a claimant comes in to see you full of

20 understandable hurt and anguish. In a situation like this it

21 will be compounded by the fact that there is a breach of

22 promise which is in fact irrelevant to the issue of

23 defamation, but you would not be human if you did not factor

24 that into how you felt about the whole thing. The courts are

25 trying to avoid people litigating unless they really have to

105

1 because of the costs involved. What it is saying here is,

2 "You need to pause, claimants" or, more accurately, "The

3 claimants' legal advisers need to advise properly as to

4 whether there really is serious harm". If something is not

5 serious harm then, by definition, it is trivial. It depends

6 how you can characterise "trivial", but "trivial" is just the

7 opposite of "serious harm". It does not have any independent

8 meaning of its own. It is not whether the whole thing is

9 trivial because you could be upset about something and it

10 would not be trivial, or there could be a breach of promise as

11 in this case that may not be regarded as trivial. It may be a

12 matter of seriousness that the Mirror gave a promise that it

13 did not follow through. But the issue is whether the harm is

14 "serious", and "trivial" is only being used to contrast with

15 "serious". So the real issue is, when does the harm become

16 serious and what do you need to show to establish it?

17 MR. JUSTICE BEAN: Before we leave the extent of publication at

18 the top, you are not saying, are you, that the very large

19 leadership of the newspaper is entirely irrelevant?

20 MR. PRICE: No.

21 MR. JUSTICE BEAN: I put to Mr. Tomlinson, and I think he agreed

22 -- maybe you agree -- that the Government resisted this

23 amendment and it was withdrawn because it seemed to make

24 extent of publication potentially conclusive, and it should

25 not be either way. If you publish an allegation to a

106

1 claimant's employer only, one person, that the claimant is a

2 paedophile and he loses his job, you have caused immense

3 damage by a publication of a defamatory statement to one

4 recipient.

5 MR. PRICE: Yes.

6 MR. JUSTICE BEAN: Conversely, you could make a completely anodyne

7 reference in the Sunday Mirror and it would not fulfil the

8 test.

9 MR. PRICE: Yes. Because of the Internet, allegations can spread

10 very quickly, so things that start off small can become big.

11 If there is no relevant Internet dissemination of a newspaper

12 article, it is forgotten quickly. So, of course, the extent

13 of publication can be a relevant matter, but what I submit is

14 that there is no necessary connection between size of

15 publication and harm and, in many cases, it will not make any

16 difference. The reasons for that partly are the ones I went

17 through when I was talking about the clear blue water between

18 the meaning determination and the harm determination in that

19 the vast majority of readers who have no interest in the

20 claimant will forget about it two minutes afterwards.

21 Immediately, if you discount all those people, then you have a

22 much smaller amount of relevant publishees. Then you have to

23 ask, what are those relevant publishees going to make of this

24 particular allegation with the knowledge that they have? That

25 is the significance of the passing reference, the fact that it

107

1 is an inferential allegation that comes by lumping them in

2 with a whole lot of people that they clearly should not be

3 lumped in with because they are not for profit.

4 The claimants' positive case in this court in support of

5 its Mardas claim is that the minute that the defendants were

6 told that this was a not for profit entity, they knew that the

7 defamatory allegation was false. That is the positive case

8 that they advance to this court. "We told you that we were a

9 non-profit organisation. We are charitable. We churn back

10 our profits for the charitable purposes that we advance.

11 Therefore, you knew that we should not be included in this

12 category of dodgy private landlords just out to make money".

13 Inherent in that case is the reality which is that once you do

14 know that then you are not going to derive the defamatory

15 allegation, or at least you will know it is untrue. That is

16 why this article has not caused any harm at all, let alone

17 serious harm, and why there has been no ripple of it apart

18 from three people who sympathised with the first claimant.

19 Serious harm must have some adverse consequence for it

20 to be serious, in my submission, or else how can it be

21 categorised as serious if it does not have an adverse

22 consequence?

23 The next issue is, if the adverse consequence is

24 tangible, fair enough, but if it is not tangible, how does the

25 claimant satisfy the burden of proof on the claimant? I do

108

1 submit that if something has caused harm, there will be

2 evidence of it in the environment that we live in now.

3 Therefore, if there is no evidence of it, the likelihood is

4 that it has not caused harm, let alone serious harm.

5 In support of that submission I talk about resilience of

6 large companies and their CEOs. It is not a core point in

7 support of my case. It is not the central point because of

8 the particular facts of this case. My learned friend seems to

9 suggest that I am giving evidence, but it is no different from

10 the observations that he makes about people being crossed off

11 Christmas card lists or downgraded. Your Lordship has

12 judicial knowledge of how the world works. You have to assess

13 seriousness, not in a vacuum. My submission to your Lordship

14 is that it is a matter of judicial knowledge that larger

15 corporations have lots of things written about them on the

16 Internet, good and bad, as does this particular claimant which

17 we will come on to in greater detail. Some sort of passing

18 reference in an article that has come and gone is inherently

19 unlikely to cause harm, even if it conveys an inferential

20 meaning which is defamatory at common law. People do not make

21 business decisions based on some reference of that kind,

22 certainly not without asking some questions about it. Yes,

23 serious alarm can be caused to resilient reputations, of

24 course, but it is likely to be evident. If it is not evident

25 you cannot just infer it because you can derive a meaning that

109

1 has a tendency to cause harm from the exercise in logical

2 positivism because it is in a national newspaper. My learned

3 friend says that the higher the reputation, the more likely

4 that it will cause serious damage if a defamatory allegation

5 is published about the claimant. In my submission, the other

6 way of looking at it -- of course, it depends on the

7 particular facts -- is that the higher the reputation, the

8 less likely someone will take into account a passing reference

9 of the type that one sees here in forming an adverse view of

10 the claimant to such a serious extent that it will have

11 adverse consequences.

12 MR. JUSTICE BEAN: Do you accept that before the new Act there was

13 no rule which said, "The claimant is a person of such spotless

14 reputation that nobody could possibly believe that, and

15 therefore the claim fails"? Before the Defamation Act, there

16 was no such defence, was there?

17 MR. PRICE: No.

18 MR. JUSTICE BEAN: Are you saying that that is the defence now?

19 MR. PRICE: I am not saying it is a defence. What I am making is

20 rather generalised submissions on this point which, of course,

21 have to draw down to the facts, but I am doing it because my

22 learned friend starts from the perspective that it has not

23 raised the bar very much. I start from the perspective of,

24 what does the Act actually say, and then make a decision about

25 that. Also, I am faced with essentially an inferential case

110

1 which is that if it goes over the Thornton threshold of

2 seriousness and it is a national newspaper, that is enough.

3 He makes the point about how a person who has a good

4 reputation can be harmed more seriously. So I am making

5 generalised points in opposition to what are generalised

6 submissions. I always come back to the particular facts of

7 this case which is that people who do not know the claimant

8 will forget about it immediately afterwards. People who do

9 will know that they should not be included in the inferential

10 category of private landlords. That is really the end of the

11 case. It is an unusual case, and nothing that your Lordship

12 does on the facts of this case is going to cause any

13 shockwaves, in my submission, because it is an unusual case.

14 It clearly is trivial in the sense of harm; it is not trivial

15 to these claimants who I accept are genuinely upset about it,

16 and not trivial in the sense that the Mirror gave a promise

17 which it should have honoured. But the basis for harm having

18 been caused is really non-existent. One could reach a

19 conclusion that, in harm terms, this is a trivial case if one

20 had to, but the burden on me is not to establish whether it is

21 trivial in terms of harm. The burden is on the claimant to

22 establish that serious harm has been caused or is likely to be

23 caused in the future.

24 One puts out of one's mind, as the Tribunal of fact on

25 this issue, as to whether the defendant has behaved badly.

111

1 That is completely irrelevant. It is not a merits-based test.

2 Obviously, if the defendant has behaved dishonestly, then the

3 claimant has a claim in malicious falsehood, and that, in

4 fact, has a lower harm test than section 1. On the other

5 hand, post-publication conduct can impact on the serious harm

6 test. For example, a corrective publication can extinguish

7 harm. I make reference to what was said by the Joint

8 Committee. It is at paragraph 39 of my skeleton argument on

9 page 11, footnote 26, which is clearly directed to commercial

10 publishers. I would ask your Lordship to read footnote 26. I

11 think the actual paragraph is in my bundle of authorities.

12 MR. JUSTICE BEAN: Sorry, which tab?

13 MR. PRICE: I was going to take it from the skeleton argument.

14 MR. JUSTICE BEAN: Right.

15 MR. PRICE: But also it could be relied on by the claimant if

16 anyone raises the matter.

17 MR. JUSTICE BEAN: (Pause for reading) Yes.

18 MR. PRICE: When one is considering an apology in the context of

19 the serious harm test, the only question is, is the wording of

20 the apology effective to neutralise the defamatory allegation?

21 If you put the apology that has been published by the Mirror

22 next to the Article, nobody can draw the defamatory allegation

23 because the whole basis of the claimants' case is that it is

24 defamatory of them because they are included in the Article

25 and lumped in with a whole lot of people who they should not

112

1 be lumped in with. It is absolutely clear from the apology

2 that that should not have been the case.

3 Of course, it is not exactly in the wording that the

4 claimant wants. I do not think I have ever come across an

5 apology that is ever in the wording or in the right place,

6 because there are always arguments about this. The only issue

7 is: if you put the apology next to the Article, can anyone

8 derive a defamatory meaning? We say obviously not.

9 MR. JUSTICE BEAN: Yes, but that is not what happens, is it?

10 MR. PRICE: No. OK, someone has read the Article.

11 MR. JUSTICE BEAN: Yes.

12 MR. PRICE: If they have forgotten about it, we discount them

13 completely from the harm test.

14 MR. JUSTICE BEAN: Yes.

15 MR. PRICE: So they have remembered the Article.

16 MR. JUSTICE BEAN: If they read the apology in the following

17 issue, then the analogy -- putting the two side by side -- is

18 valid.

19 MR. PRICE: Yes.

20 MR. JUSTICE BEAN: But some will, some will not.

21 MR. PRICE: Yes. If we look at it analytically, there are the

22 people who have forgotten about it altogether, so they are out

23 of the harm situation in any event; there are the people who

24 remember it and look at the apology and at that point they are

25 out. In my submission, on the facts of this case, they are

113

1 undoubtedly out on the wording of this apology, even if it is

2 not the apology that the claimants want, because there is no

3 sensible way that they could be included in the category of

4 landlords bearing in mind what is said in the apology.

5 Then we have the third category, which is the people who

6 read or remembered the original Article but have not seen the

7 apology. I make another general observation that the people

8 who are most likely to cause harm to the claimant's

9 reputation, the people who matter to the claimant, are the

10 ones most likely to see the apology. The claimant has the

11 opportunity to draw the apology to the attention of the people

12 who are relevant to its reputation and bearing in mind, again

13 a generalisation, that people are unlikely, certainly in a

14 business context, to act against somebody, say, not give them

15 a tender without at least asking them about something. You

16 have immediately got the apology to say, "There you go, it's

17 all rubbish". Assuming the apology is fit for that purpose,

18 it will then extinguish the harm.

19 So you have a residual category of people who have found

20 out about the original Article but know nothing about the

21 apology and then do something which is going to impact

22 adversely on the claimant. Again, looking at it from a

23 general perspective, it seems to me, I would submit, that that

24 is quite unlikely. You would have to have some primary fact

25 or factual basis put before the court for the inference to be

114

1 drawn that in that residual category of people who have not

2 found out about the apology there is likely to be serious harm

3 caused.

4 What you cannot just come in is with a wholly

5 generalised case of, it is a national newspaper and some

6 people will not see the apology. And, of course, nowadays if

7 we accept we are in the internet age, then if anybody is

8 looking for information about somebody, they do a Google

9 search. If the apology comes up on the front page of the

10 Google search, that is the end of the matter in terms of the

11 harm caused or potentially caused by the original reading of

12 that leader.

13 Section 1 is a defence for the internet age. That is

14 why the Joint Committee recognises the possibility of the

15 apology extinguishing the harm and makes reference to the

16 internet. When people are making decisions they go to the

17 internet.

18 MR. JUSTICE BEAN: I think you say that if one does an internet

19 search on Ms. Cooke's name and Midland Heart and Benefits

20 Street, possibly, you get the apology but not the original

21 Article; is that right?

22 MR. PRICE: Yes. Certainly against Mrs. Cooke and Mrs. Cooke and

23 Midland Heart you get the apology. It is in the bundle.

24 MR. JUSTICE BEAN: Yes.

25 MR. PRICE: It is on the first page of the Google search. The

115

1 important thing is the Article was amended very, very quickly

2 to remove reference to both claimants and, of course, it is

3 now not on line at all.

4 MR. JUSTICE BEAN: Yes.

5 MR. PRICE: There is some reference in the Part 18 response and in

6 the witness statements to the Article being embedded in some

7 very obscure website. I do not think Mr. Tomlinson said very

8 much about it, but I do address it in my skeleton argument.

9 Obviously in a case like Cairns v Modi or any case where

10 the defendant is continuing the publication of the defamatory

11 words, a case such as Mardas in fact, then the potential for

12 harm is, of course, much greater.

13 MR. JUSTICE BEAN: Yes.

14 MR. PRICE: That is really what the Joint Committee were talking

15 about there: be a responsible publisher. If it is wrong, take

16 it off and you can minimise the harm, especially if you

17 apologise.

18 In relation to a corporation that trades for profit,

19 financial loss must be proved. Originally there was no

20 specific provision for this. Section 1(2) was brought in

21 right at the very end. One of the reasons why there was no

22 specific provision was that the Government's view was section

23 1 would cover corporations and would, in effect, require them

24 to prove financial loss without it being made explicit.

25 So what is the position in relation to a charitable

116

1 trading corporation where the charitable purpose and the trade

2 are one? In my submission, the answer to that -- and I have

3 set it out in the skeleton argument -- is that financial loss

4 is really the only loss that is relevant in terms of serious

5 harm, even if they do not fall explicitly within section 1(2).

6 In Gatley an example is given of a charity which has a

7 campaigning arm and a trading arm. It may be helpful just to

8 have a look at that, even though I have had a "go" at Gatley

9 in my submissions. It is in my learned friend's bundle at tab

10 4, page 42, paragraph 2.8, the final paragraph:

11 "While a trading corporation is clearly a 'body that

12 trades for profit', the Act is not limited to such entities:

13 any non-natural person that trades for profit whether that is

14 their only or a very minor part of their purpose, will be

15 covered. Thus, charities may fall within the provision, in so

16 far as they are involved in trade for profit ..."

17 Then the footnote refers to:

18 "A charity that may engage in trade for the purposes of

19 fundraising, may have a reputation, for example, for unbiased

20 reporting on human rights in the developing world. An

21 allegation that it has been biased or prejudiced in its

22 reporting of a particular matter would undermine its

23 credibility seriously as a reliable source of information but

24 might not cause it serious financial loss."

25 Gatley opines that section 1(2) would apply. We are not

117

1 submitting that section 1(2) does apply. The reason I pointed

2 this out was a distinction is being made between the trading

3 arm of a charity and its campaigning arm. There are a number

4 of charities who do have these two arms. One could imagine

5 that such a charity could be harmed in its campaigning arm.

6 But here, the charitable purpose is ----

7 MR. JUSTICE BEAN: We do not need to go down this road, I suspect,

8 because you accept that section 1(2) does not apply in this

9 case. It certainly cannot apply to the first claimant and I

10 do not think it can apply to the second claimant either. If

11 one takes the Gatley footnote too far it would mean that all

12 charities would fall within the section 2 requirement if they

13 had a little shop somewhere that sold bars of soap for a

14 profit.

15 MR. PRICE: Yes.

16 MR. JUSTICE BEAN: That will have to be decided in some future

17 case, not in this one, but it seems a very strange conclusion.

18 MR. PRICE: Yes.

19 MR. JUSTICE BEAN: Section 1(2) seems to me to have been quite

20 carefully worded.

21 MR. PRICE: Yes. But in the present case, my Lord, we have a

22 charity where its purpose and its trade are inextricably

23 linked. The harm that they ----

24 MR. JUSTICE BEAN: It is not trading for profit.

25 MR. PRICE: No, it is trading for the charitable purpose.

118

1 MR. JUSTICE BEAN: Parliament could have said, "Only individuals

2 can sue for defamation". That is one way of doing it. But

3 they did not. There are all sorts of entities who are neither

4 individuals nor companies trading for profit: partnerships,

5 charter corporations, all sorts of things. It does not help

6 us in this case.

7 MR. PRICE: No, but I make the specific point on the facts of this

8 case with this particular charity that its trade and its

9 purpose are one and the same, in contrast to other charities.

10 So one has to ask, what is the relevant harm to their

11 reputation if it is not financial loss? It must all be

12 directed to money, as is apparent from their annual report.

13 They need to make a surplus to continue their charitable

14 purpose. The harm that is being put before the court, albeit

15 it is not actually ticking the likely box, but the harm that

16 is being put before the court, and indeed the only harm, is

17 the loss of a tender arising as a result of th article.

18 So I submit that on the particular facts of this case,

19 with this particular charity, in reality for it to suffer

20 serious harm it must show either actual financial loss of a

21 serious kind or likely future financial loss of a sufficiently

22 serious kind.

23 MR. JUSTICE BEAN: Yes.

24 MR. PRICE: One cannot see any other loss that could possibly be

25 relevant because it is all tied to money. It does not have to

119

1 be directly tied to money, it could be indirectly tied to

2 money. But, at the end of the day, there has to be a pounds

3 consequence to it of a sufficiently substantial nature so as

4 to be categorised as "serious".

5 MR. JUSTICE BEAN: What about the first claimant?

6 MR. PRICE: The first claimant is about harm to reputation and

7 does not need to be tied to money. But her pleaded case as

8 originally drafted was directed to the industry's opinion of

9 her. Now there seems to be a move away from that, we would

10 submit, for the obvious reason, that the industry's opinion of

11 her is not going to be affected by this Article because the

12 industry will have the same knowledge as the three individuals

13 ----

14 MR. TOMLINSON: The pleaded case has not changed. Mr. Price says

15 "the pleaded case as originally drafted". There is only one

16 version of it.

17 MR. JUSTICE BEAN: I do not think I have looked at this aspect of

18 it anyway, whether original or otherwise. Let us have a look.

19 MR. PRICE: Yes, do let us have a look at it. It starts in the

20 amended particulars of claim -- it is pretty specific -- at

21 paragraph 11.1. In fact, will your Lordship start at

22 paragraph 11 on page 4:

23 "The first claimant will rely, in support of paragraph

24 10 above, on the following facts and matters."

25 11.1 is quite clearly linked to harm to reputation and

120

1 11.2 is explicitly linked to injury to feelings. So we forget

2 about 11.2 as my learned friend accepts and we look at 11.1

3 and we see what the pleader's aim is:

4 "Professional contacts of the first claimant have

5 referred to the article in communications with her, giving the

6 first claimant reasonable cause of concern that their, and the

7 industry's, opinion of herself and the second claimant have

8 been seriously adversely affected by the article. These

9 contacts have included" -- I emphasise -- "the following ..."

10 The pleader's aim is directed to the goal of the court

11 drawing the inference that the first claimant has reasonable

12 cause for concern that her opinion has been lowered. That is

13 not the test. The test is that it has been lowered,

14 seriously.

15 The three examples given unravelled (or at least two of

16 them unravelled) and the third one really did not come to

17 anything in any event with a Part 18 request that the

18 claimants eventually responded to. It is perhaps helpful to

19 go to that Part 18 request because your Lordship can then see

20 how the claim has changed.

21 Perhaps before we go there, one should have a look at

22 the second claimant's case which is in paragraph 12.

23 Paragraphs 12.1 and 12.2 relate to the possible loss of a

24 contract or grant.

25 MR. JUSTICE BEAN: Yes.

121

1 MR. PRICE: Then 12.3 repeats 11.1 and talks of:

2 "... harm and the likely harm to the second claimant's

3 reputation amongst those working in the field."

4 When one comes to the Part 18 response, which is at tab

5 5, one can see from the first page that initially we asked to

6 know who the other professional contacts were because it was

7 said to be "examples of". Then we are told that these were

8 the three but if there are any others they will tell us about

9 it. They have not done so, so we can assume it was just these

10 three.

11 When we probe a little in relation to the first one, Mr.

12 Chipp, the answer is, it is the first sign of a shift away

13 from the industry contacts into the case that is now being put

14 before the court, which is it is a national newspaper article

15 and that is really all that matters.

16 I do not know if your Lordship can see four lines from

17 the bottom of Response 3 there is a paragraph:

18 "However, the claim in this action is based on the

19 damage to the claimants' reputations in the minds of the many

20 hundreds of thousands of readers of the Sunday Mirror ----"

21 MR. JUSTICE BEAN: Yes.

22 MR. PRICE: "---- and not in the minds of Mr. Chipp, Mr. Voges or

23 any one individual in particular."

24 That is followed up in Response 7 in relation to Mr.

25 Voges. We now find out that Mr. Voges had not in fact read the

122

1 Article. He got a scrape of the apology, he could not find

2 the Article. In Response 7, a couple of lines up from the

3 bottom one sees:

4 "The vast majority of readers of the article would not

5 have had the benefit of having the first claimant explain the

6 true situation to them personally" -- which is an acceptance

7 of what is clear, that there is only a number of ways in which

8 the claimants could easily explain what had happened: "They

9 gave us a promise that they would not put it in. When they

10 did, they took it off line. Immediately they have given us

11 this apology." It is very easy to deal with. Mr. Small: it

12 is not suggested that he thinks the worse of them.

13 Then it is important to look at what is said in relation

14 to paragraph 12 of the amended particulars of claim and the

15 matters relied on by the second claimant:

16 "Question 11: Please confirm that it is not alleged that

17 the second claimant has lost any contract or grant as a result

18 of the Article.

19 "12. Is it alleged that the second claimant is likely to

20 lose a contract or grant as a result of the Article?" The

21 response is over the page:

22 "The second claimant is not aware at present of any

23 contract having been lost as a result of the article but it

24 cannot confirm the statement made in the request."

25 With great respect, that is a reversal of the burden of

123

1 proof. We were asking whether they were making that

2 allegation and they are not. Since they are not making the

3 allegation, whatever suspicions the claimants may have --

4 reasonably or unreasonably, we would necessarily submit, with

5 respect, unreasonably -- your Lordship cannot find serious

6 harm has been proved in relation to the second claimant on the

7 basis of a loss of a contract.

8 MR. JUSTICE BEAN: I am concerned that the way you are putting the

9 likelihood of serious harm test is going to result, if you are

10 right, the claimants having to, in effect, fight the trial at

11 this stage in order to succeed.

12 Assume -- I am not saying this is the result -- I am

13 against you on meaning and that all that Mr. Tomlinson's

14 pleaded meaning, which is as bad as it can be, is the right

15 meaning. What would the claimants have to show, the first

16 claimant and the second claimant, what would they have to show

17 in order to surmount the section 1 test?

18 MR. PRICE: The first claimant is in a different position from the

19 second claimant, so may I deal with the first claimant?

20 MR. JUSTICE BEAN: Yes.

21 MR. PRICE: Let us suppose something going around the internet

22 possibly having a go at them, something that shows "how awful

23 we always thought they were", something of that kind could

24 possibly do it.

25 MR. JUSTICE BEAN: For the second claimant?

124

1 MR. PRICE: It is much harder for corporations. My primary

2 submission is that this corporation, in effect, has to show

3 financial loss because that is all it can do; it does not

4 matter about section 1(2). It is abundantly clear that

5 Parliament's intention was to make it significantly harder for

6 corporations to sue because it was contributing (so Parliament

7 believed) to libel chill and therefore there had to be a

8 blanket restriction in the absence of serious financial loss.

9 If one looks at the debates, there were eminent lawyers who

10 were saying "This is going to be very, very difficult for

11 companies to prove".

12 MR. JUSTICE BEAN: Yes.

13 MR. PRICE: And in fact the House of Lords rejected a test along

14 those lines in Jameel partly because of the difficulties of

15 proof.

16 MR. JUSTICE BEAN: I am not concerned at the moment with what

17 evidence will have to be called at a trial, if there were one.

18 I am concerned with what has to be shown at this stage, at

19 this stage where no oral evidence is called and so there is no

20 cross-examination. If we turn this kind of exercise into a

21 10-day trial that will completely destroy all the good works

22 started by Tugendhat J years ago having this kind of hearing

23 where a Judge decides meaning and then decides other points

24 which may make it unnecessary to have a trial.

25 What does a claimant in the position either of this

125

1 individual claimant or of this corporate claimant have to show

2 at this stage to get over the hurdle?

3 MR. PRICE: This is the trial, my Lord. There is no evidence

4 because we have conceded all relevant primary facts. This is

5 not some interim ----

6 MR. JUSTICE BEAN: This is the whole trial of liability?

7 MR. PRICE: No, of serious harm, trial on whether serious harm has

8 been caused.

9 MR. JUSTICE BEAN: Yes. But if that is going to become an issue

10 which potentially is like a liability trial, then there may

11 have to be a 10-day contested hearing costing millions of

12 pounds.

13 MR. PRICE: Yes.

14 MR. JUSTICE BEAN: In order to avoid that, on the serious harm

15 issue, what does a claimant have to show on the serious harm

16 issue?

17 MR. PRICE: The ----

18 MR. JUSTICE BEAN: What evidence has to be brought forward?

19 MR. PRICE: Let us suppose that the defendant is still justifying

20 the allegation and it is still on the website. That would be

21 a significant factor ----

22 MR. JUSTICE BEAN: Yes.

23 MR. PRICE: ---- a Cairns v. Modi situation.

24 MR. JUSTICE BEAN: Yes.

25 MR. PRICE: Considerable internet traffic of a negative kind

126

1 arising from the allegation having been made, which you

2 commonly find.

3 MR. JUSTICE BEAN: So how much internet traffic would you have to

4 prove to show, for example, that Ms. Cooke had suffered

5 serious harm to her reputation?

6 MR. PRICE: I cannot answer precisely what level of internet

7 traffic it would take. Parliament accepted that there is an

8 element of subjectivity in relation to "serious" which would

9 involve some front-loading of costs. One would hope that it

10 would be approached in a proportionate manner and the courts

11 would encourage that to happen. We have tried to litigate in

12 that manner in this case, which is why there has been no need

13 for any oral evidence, also partly because of an absence of

14 material that can be put before the court on the facts of this

15 case. Defendants will have to make careful decisions about

16 whether to put "serious harm" in issue and that has not been

17 made lightly on the facts of this case which, I stress very

18 much, are pretty unique in many ways because of the Housing

19 Association point and the short time it was on line.

20 But as a matter of principle, the court has to go where

21 section 1 takes it, because that is what Parliament has ----

22 MR. JUSTICE BEAN: Of course that is right, Mr. Price, but what I

23 am asking is where does it take the parties? Assume a case in

24 which there is no defence of justification. Obviously if the

25 truth or otherwise of the allegation has to be fought out,

127

1 then I suppose one can envisage a case in which a defendant

2 says, "Hadn't we better try serious harm first because even if

3 the claimant succeeds on justification we say it is terribly

4 trivial, so why embark on a five or 10-day trial on

5 justification"?

6 MR. PRICE: Yes.

7 MR. JUSTICE BEAN: That is a slightly more complex type of case.

8 But I am concerned to know what the procedural approach and

9 evidential approach should be to serious harm if it is taken

10 at this stage. It is pretty well established, is it not, in

11 relation to meaning that one has a short, hopefully relatively

12 cheap and cheerful, hearing. But if meaning applications are

13 to work, you cannot line up files of evidence. It is not a

14 proportionate way of doing things.

15 How does one apply that to serious harm? You say that a

16 claimant needs to show by evidence of internet traffic that

17 there has been serious harm to her reputation or its

18 reputation?

19 MR. PRICE: I do not say "has to". It was one way in which ----

20 MR. JUSTICE BEAN: That is one way. Can you think of any other?

21 MR. PRICE: It depends on the particular facts of the case, some

22 actual tangible disadvantage: you have been forced to resign

23 from a committee; you have people abusing you in the street

24 ----

25 MR. JUSTICE BEAN: Or in this case if the second claimants had

128

1 been able to say, "We lost a contract ----"

2 MR. PRICE: Yes.

3 MR. JUSTICE BEAN: "---- here is the evidence."

4 MR. PRICE: Yes.

5 MR. JUSTICE BEAN: All right. What about individual claimants?

6 There might be cases where somebody is sacked from their job

7 or something. But if it is not that, how do you show at this

8 stage that you have suffered substantial damage to your

9 reputation?

10 MR. PRICE: Serious harm to your reputation.

11 MR. JUSTICE BEAN: I am sorry, serious harm to your reputation?

12 MR. PRICE: There are a variety of ways. As I say, internet

13 repetition, it going viral. If we just put that in bracket of

14 what the Court of Appeal said in Cairns v. Modi following on

15 what your Lordship said at trial in Cairns v. Modi; people

16 coming up to you; people ostracising you; if you are running a

17 small business, less movement through. I think it was Kenneth

18 Clarke who said that anyone who has any serious problems will

19 get through the hurdle or surmount the hurdle.

20 I stress, my forensic objective here is to persuade your

21 Lordship that there is no serious harm on the facts of this

22 particular case so I have not put my mind to what evidence

23 could apply in another case. But one would have to ask

24 oneself, given the test is serious harm, "How can harm to

25 reputation manifest itself in an adverse way": some difference

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1 between before and after. Your life beforehand had these

2 particular things happening and now it does not in some way.

3 How that might be shown would depend on your particular life.

4 A serious allegation of paedophilia would almost

5 inevitably involve some sort of life change for somebody and

6 not just in terms of injury to feelings. I can think of a

7 case I did in relation to an investigation in Panorama about

8 bungs in football. There was a massive investigation,

9 massively heralded with publicity and a covert recording of my

10 client was broadcast which, as it was presented, suggested

11 that he was interested in taking bungs. He did in fact lose

12 his job but also he encountered people who were just giving

13 him the cold shoulder asking what it was about. There was

14 massive traffic on the internet.

15 A very easy example, of course, in a newspaper case you

16 have "reader comments".

17 MR. JUSTICE BEAN: Yes.

18 MR. PRICE: You can see a whole lot of people having a go as a

19 result. That, of itself, may not be the case, but it is just

20 an example of the visibility of people having taken against

21 you, some evidence that people are taking against you, or some

22 cogent basis for inferring it.

23 Your Lordship has observed that we could have a very

24 lengthy hearing. In fact, if one strips away all the legal

25 argument relating to section 1, this hearing would have been

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1 extremely quick.

2 MR. JUSTICE BEAN: Yes.

3 MR. PRICE: The parties have adopted a sensible approach.

4 MR. JUSTICE BEAN: Yes.

5 MR. PRICE: The start point would be in the letter of claim. The

6 claimant has to set out his or her case. The defendant then

7 has to evaluate it to work out whether it should be put in

8 issue. The rule in the pleadings should be adhered to.

9 Gatley is plainly right on that: you set out the case in the

10 particulars of claim and you give particulars, if necessary

11 because, obviously, the information is outside the defendant's

12 knowledge. Then the parties have to make a sensible decision.

13 In particular, the defendant has to make a sensible decision

14 about whether to put serious harm in issue.

15 But the ways in which you can prove serious harm to

16 reputation must simply reflect the ways in which your

17 reputation can be harmed. If there is no visible evidence of

18 it, then you can ask the court to infer it, but you must have

19 some primary facts relied on to invite the court to draw the

20 inference and one would hope that the defendant would be

21 sensible and not required primary facts to be proved if it

22 looks like they are right and maybe just argue the inference.

23 If you are just arguing the inference rather than the primary

24 facts, it should be a much more straightforward hearing.

25 The difficulty would arise when primary facts were in

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1 issue and make sure that the claimant sticks to what is

2 relevant, does not put in a witness statement if the primary

3 facts are admitted, and does not put in a witness statement

4 dealing with injury to feelings, why they are bringing the

5 claim, how badly the defendant has behaved, what they are

6 going to do with the damages, the cost implications if they

7 lose. They just focus on the relevant parts of it and have

8 proper case management to make sure that it can be heard

9 quickly.

10 MR. JUSTICE BEAN: There may be a proportion of defamation cases

11 in which this is simply unsuitable for trial as a preliminary

12 issue. Meaning may be. It usually is, I think.

13 MR. PRICE: Yes.

14 MR. JUSTICE BEAN: But serious harm may or may not be depending on

15 the facts of the case.

16 MR. PRICE: That is why we wanted the Part 18 requests responded

17 to before we agreed to the preliminary determination. Once we

18 got that response, we could see that they were not actually

19 alleging that the contracts were likely to be lost, in which

20 case you can just put them out the equation or, if the

21 contract had been lost, we could just forget about that. We

22 did not have to look at what the tendering authorities might

23 or might not have done.

24 MR. JUSTICE BEAN: All right.

25 MR. PRICE: The correct way is not look at whether the result is

132

1 an appalling vista but to ask what you have to do. Clearly,

2 you have to make a finding about serious harm and the burden

3 of proof is on the claimant.

4 But what you cannot do -- because of the potential costs

5 of arguing it -- is to just turn around and say, "Oh well in

6 that case, if it is in a national newspaper and lots of people

7 have read it, just to avoid having all these arguments we will

8 just say, 'That is good enough'." With respect to my learned

9 friend, that is what I submit his case really boils down to:

10 that you can take into account that not everyone will have

11 seen the apology; take into account that it has got to reach a

12 certain threshold of seriousness under the common law; take

13 into account that it is millions of people who have read it,

14 and that is really all you need. It is effectively what he

15 submits.

16 One cannot rely on the potential costs of having a

17 proper investigation into serious harm as a reason to just let

18 that go by, in which case there will not really have been any

19 change.

20 One has to ask, in terms of the facts of this case, why

21 is the claimant not in a position to provide any evidence? I

22 submit the obvious answer to that is what I have said all

23 along: it is a passing reference, an inferential meaning that

24 everyone who knows the claimant knows his faults. It was on

25 line for a very short period of time and then there was an

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1 apology.

2 The on line for a short period of time and the apology

3 you could say, perhaps in a number of cases -- although the

4 Joint Committee seems to accept that the apology is something

5 that can extinguish harm -- the real distinctive feature of

6 this case is the Housing Association point, that it should not

7 be in the Article. The inferential meaning is not there if

8 you know they are a Housing Association and they are not for

9 profit. Even their worst enemies have not taken advantage of

10 this particular Article.

11 If your Lordship goes to bundle B, tab 12 is the search

12 of Ruth Cooke and Midland Heart. Halfway down you can see the

13 apology, "Midland Heart and Ruth Cooke: An Apology". Below

14 that you can see the website.

15 MR. JUSTICE BEAN: How recent is this? I cannot remember.

16 MR. PRICE: I think it is fairly recent. It was last week.

17 MR. JUSTICE BEAN: Right.

18 MR. PRICE: You have the apology. Just below that you have the

19 website referred to in Mrs. Cooke's witness statement,

20 MidlandHeart.com "making the poor poorer". It is quite

21 vitriolic if you go on the website, all sorts of abuse being

22 poured on the claimants. It is the sort of thing that is

23 inevitable, a big company providing these sorts of services

24 will get disgruntled tenants who do this sort of thing. They

25 would perhaps be the first to seize upon this if it was of any

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1 relevance. Of all those customers that they have, none of

2 them have mentioned it. That would perhaps be some evidence,

3 if your customers were raising it with you and saying, "What's

4 this all about?"

5 When your Lordship goes through Mrs. Cooke's witness

6 statement you will see the vast pool of people who could have

7 raised this article in a negative way if it had influenced

8 them, who could have been a source of evidence.

9 If your Lordship goes to tab 10 you will see the first

10 page of a Google search relating to Midland Heart. There is

11 the usual stuff that one would see. There is a BBC News

12 article which I only mention just to illustrate the point

13 about the good and the bad being out there on the internet and

14 big corporations having lots of things said about them, which

15 they can withstand. We are told that they have a very high

16 reputation but on the front page of their Google search we see

17 a criminal prosecution. These things happen; it is a big

18 company. Why should one instance in any way affect what

19 people thing about them? But there it is, on the front page

20 of their Google search.

21 Then there are the Google reviews on the front page. We

22 get the usual "Disgruntled of Knotty Ash" although it is not

23 "Knotty Ash", is it, it is "Winson Green", "They're a bunch of

24 idiots that couldn't ..." etc. It just comes and goes.

25 Providing this sort of housing one would imagine,

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1 inevitably -- even if they were doing the most fantastic job

2 -- they get lots of people who are disgruntled with them. It

3 is interesting that none of them have raised this particular

4 Article. There are plenty of formats for them to do so, if

5 they could get hold of it quickly enough.

6 MR. JUSTICE BEAN: Tab 12 is the one you have referred me to, that

7 Midlandheart.com appears to be a hostile website?

8 MR. PRICE: Yes. I think Ms. Cooke refers to it in her witness

9 statement. These hostile websites are pretty good at getting

10 high up the search listings. If you are dedicated to causing

11 harm for a company, you can do your best, if you have not got

12 anything else going on in your life. We have all come across

13 this in the defamation field. They may be entirely sincere in

14 its beliefs, the people behind this site, or maybe they have

15 an ulterior motive, but they are going to be determined. I

16 believe that Mrs. Cooke said that this was specifically

17 referred to her in the course of some sort of tender and no

18 doubt she was able to explain it. When you look at the

19 website it is fairly grotesque and amateurish.

20 But when one lives in the real world of 2014 if a

21 defamatory allegation has had any impact, you are certainly

22 going to see that impact. There are so many ways in which you

23 can do so. So in a case where there is none, the obvious

24 question is, why is that? I have provided an answer to that

25 question which is, in my submission, an obvious one: if it

136

1 does not get me home on meaning, then it should get me home on

2 harm.

3 I just need to say something about future harm. I think

4 your Lordship is being invited to conclude that even if

5 serious harm has not been proved as at this date, it is more

6 probable than not that it will arise in the future.

7 MR. JUSTICE BEAN: Yes.

8 MR. PRICE: Your Lordship has not really given any basis to draw

9 such an inference. The second claimant cannot rely on the

10 loss of a tender for a variety of reasons, but the most

11 obvious one is that they were invited in the Part 18 response

12 to state whether that was their case. They did not state that

13 that was their case, they merely said that it might happen.

14 That is Response 12. I took your Lordship to it. I had

15 better just check it is Response 12. Yes, it is Response 12

16 and I deal with it in my skeleton argument. So one discounts

17 that.

18 Then, what is left? How is this serious future harm

19 going to arise? It really should be for my learned friend to

20 explain how it could possibly arise when there is nothing in

21 the pleaded case at all and it appears to be that paragraph 10

22 is directed to the harm having been caused. If it is failing

23 on that, where are the facts from which you can infer it is

24 going to happen in the future when there is no trace of the

25 Article on line and the print copy is dead and buried ages

137

1 ago? It is simply impossible and the claimants do not really

2 try to do so.

3 May I finalise my submissions by just making three

4 bigger picture points, taking the submissions from my learned

5 friend's skeleton argument? At paragraph 43 he says ... in

6 fact, I have these in writing, I could just hand them up to

7 your Lordship. It might help. It is an attempt ----

8 MR. JUSTICE BEAN: By all means.

9 MR. PRICE: ---- to deconstruct the central pillars of their case

10 which effectively rest on how things were done, not how they

11 are done now. (Document handed to His Lordship)

12 In paragraph 43:

13 "Midland Heart is a housing association with a

14 particular focus on care and support services and it is

15 obviously damaging to characterise it as a 'slum landlord' and

16 to allege that it is profiting from renting squalid properties

17 to housing benefits claimants. It is also obviously damaging

18 to Mrs. Cooke to allege that she is profiting in the same way.

19 "Reality:

20 "Midland Heart is a housing association with a

21 particular focus on care and support services. Anyone who

22 knows them will know this and will understand that they are

23 not to be characterised as slum landlords profiting from

24 renting squalid properties to housing benefits claimants.

25 [48] The actual and likely serious harm to the

138

1 claimants' reputations will be in the estimation of those who

2 do not know them but will now know them as the dodgy landlords

3 associated with Benefits Street.

4 "Reality:

5 "The people who did not know them when they read the

6 article will have forgotten about it shortly after reading it

7 (and if they know what a housing association is are not going

8 to put them in a category of dodgy landlords). Nobody is

9 going to read it in the future.

10 "[42] & [43]" -- and this really is the essence of their

11 case -- "The Article is in a national newspaper. The

12 inferential allegation complained of clearly passes the

13 Thornton threshold of seriousness. A Jameel application would

14 be hopeless and the claimants would be awarded substantial

15 damages without evidence of any damage. Parliament only

16 intended to raise the bar a modest extent. It follows that

17 the section 1 threshold must therefore be satisfied, whatever

18 it is." -- In other words you work back saying, "It has not

19 made much of a change and because it has not made much of a

20 change, therefore we must win." Whereas the reality is:

21 "Reality:

22 "Section 1 requires proof of actual or future serious

23 harm. In contrast, in Jameel there is no equiparation between

24 an absence of harm and an abuse. The Thornton threshold of

25 seriousness is satisfied by a mere tendency and there is no

139

1 requirement at common law to provide evidence of damage in

2 order to obtain substantial damages. It follows that section

3 1 does raise the bar in a meaningful way." -- However

4 meaningful it is, it is sufficient to cover the facts in this

5 particular case.

6 Unless I can be of any further assistance, those are my

7 submissions.

8 MR. JUSTICE BEAN: Thank you, Mr. Price.

9 Mr. Tomlinson, are you content to plough on now?

10 MR. TOMLINSON: My Lord, yes, if that is what your Lordship

11 wishes, I am certainly content.

12 MR. JUSTICE BEAN: I can come back tomorrow but none of you might

13 want that. I dare say you have busy lives.

14 MR. TOMLINSON: I am sure that we would all be delighted to see

15 your Lordship tomorrow. On the other hand, I am sure it would

16 be appropriate for me to finish today, in terms of court time

17 and resources and so forth.

18 MR. JUSTICE BEAN: Yes, indeed.

19 MR. TOMLINSON: I can see the Transcribers are reluctantly

20 agreeing.

21 MR. JUSTICE BEAN: I will simply take a five-minute break and we

22 will resume at half past four.

23 (A short adjournment)

24 MR. JUSTICE BEAN: Yes, Mr. Tomlinson?

25 MR. TOMLINSON: My Lord, whether the metaphor of the high jump or

140

1 the hurdle raises the appropriate one, in one sense it does

2 not matter at all because what we say is plain is that the

3 intention of section 1 is to make a modest change to the law

4 of defamation, the introduction that your Lordship saw to the

5 draft bill from the sponsors talk about a balancing, a

6 rebalancing of freedom of expression, the right to reputation,

7 the sponsor Lord McNally talks about a modest raising of the

8 bar and the references to trivial cases.

9 What is plainly intended we say by the serious harm test

10 is to exclude a category of trivial cases which were not

11 previously excluded by looking at, in relation to those cases,

12 the kind of harm that is caused. At the heart of the error

13 that we say that Mr. Price has fallen into is that what the

14 section talks about is serious harm to reputation. He was

15 constantly referring to adverse consequences to the claimant.

16 He was constantly glossing the phrase in the statute "serious

17 harm to reputation" as "serious harm to the claimant", which

18 is not what the statute says at all.

19 He said on at least four separate occasions that there

20 has to be adverse consequences which influences you

21 negatively. In other words he is removing in his submissions

22 the idea of serious harm reputation and replacing it with a

23 test of serious harm to the claimant which ----

24 MR. JUSTICE BEAN: I do not think it was. Anyway, it is quite

25 clear that it is serious harm to reputation.

141

1 MR. TOMLINSON: But he certainly emphasised on numbers of

2 occasions, because I made a note of the precise quotation,

3 there has to be adverse consequences which influence you

4 negatively he said.

5 That is not right. There has to be adverse consequences

6 which influences your reputation negatively and your

7 representation is not a tangible thing. Your reputation is

8 the summation of how individuals in society estimate you, how

9 they understand who you are and how they think about you in

10 the future.

11 Now, towards the end of his submissions Mr. Price fell

12 into what we say is an absolutely fundamental error. When

13 pressed by your Lordship on the question of how evidence for

14 damage to reputation would be put forward his primary

15 submission was you would find traces of it on the internet.

16 Of course, sometimes you will find traces of it on the

17 internet but not necessarily. To take a very obvious example,

18 where it is localised in a particular community, something may

19 never go on the internet but yet a reputation may be seriously

20 damaged.

21 The fact here that the article was taken off line means

22 that people do not take extracts from it and tweet them and

23 put them on blogs and so on. The submission that, therefore,

24 readers of the Sunday Mirror are not influenced by what they

25 read because they did not retweet it, effectively is what

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1 Mr. Price is saying, is, we say, obviously misconceived.

2 Readers of the Sunday Mirror are, as I said earlier,

3 some of them are influenced a lot, some of them influenced a

4 little by what they read in the Sunday Mirror but it cannot be

5 definitive of the fact that damage is suffered that they have

6 retweeted it, that they have tweeted something about it, they

7 have put it on the internet.

8 In relation to Cairns v. Modi, as your Lordship will

9 remember, there was actually no specific evidence of damage to

10 reputation. All there was was expert evidence of the number

11 of followers of Mr. Modi's twitter account in the jurisdiction

12 which is where it matters, there was no pleaded case on

13 republication or retweeting, there was no evidence before your

14 Lordship that the matter had gone viral., indeed, what had

15 happened is that there had been, the similar libel had been

16 repeated on the Cricinfo site and then had been followed by a

17 correction. In terms of the internet presence there had

18 actually been an apology of the very type that Mr. Price was

19 talking about.

20 MR. JUSTICE BEAN: That was a side complication and we see

21 Cricinfo separately and they settled ----

22 MR. TOMLINSON: They settled and then there was an apology, quite

23 so.

24 In terms of internet presence it was all, the matter was

25 entirely inferential and so, when the Court of Appeal rejected

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1 my submission that the court should be more analytical about

2 how they assess defamation damages they approved the way that

3 your Lordship had done the assessment which was on the basis

4 of broad approach looking at the percolation effect and so on

5 but, and this is we say crucial, not based on the idea that

6 there was some form of, that there was specific evidence of

7 harm caused by the circulation to a small number of people of

8 those tweets.

9 In contrast to what Mr. Price says Cairns v. Modi is

10 strongly supportive of our position because the Court of

11 Appeal in that case effectively say, well, the fact that you

12 have, on any view your defamation has only been picked up by a

13 small number of people does not therefore mean that the

14 damages must be insubstantial. On the contrary, it accepts

15 that it is right for the judge to make a broad assessment in

16 the way that your Lordship did in that case.

17 My Lord, with that introduction, may I turn to the

18 housing association point which occupied a great deal of time

19 in Mr. Price's submissions.

20 MR. JUSTICE BEAN: Just to finish on that, you say if Cairns v.

21 Modi were to occur today the Defamation Act could make no

22 difference?

23 MR. TOMLINSON: I say that it would be startling if it did make a

24 difference because it was a case in which your Lordship made a

25 substantial award of damages in respect of what your Lordship

144

1 held was a serious defamation. To say that that was a trivial

2 case which section 1 should knock out, which must be the

3 result of Mr. Price's submissions, would be not just raising

4 the bar by a small amount, it would be replacing the hurdles

5 by the pole vault. It would just be turning it into an

6 entirely new sport. Cairns v. Modi is a case where a serious

7 allegation is made, albeit to a small number of people and not

8 a trivial case and one that plainly should survive section 1.

9 My Lord, may I now turn to the housing association

10 point. Mr. Price spent a great deal of time arguing that the

11 claimant's pleaded meaning effectively had a fatal flaw

12 because it depended on the side that people would view them as

13 private landlords and if people actually thought they were a

14 housing association, therefore not private landlord, therefore

15 the rest of the case collapsed, that I think is a fair summary

16 of his position.

17 I have a number of responses to that but the first is if

18 your Lordship has it conveniently to hand, if your Lordship

19 looks at the particulars, paragraph 9, that is bundle A,

20 tab 4, page 4, actually if one deletes the word "private" in

21 the second line of 9(a) the second claimant which is owned and

22 run by the first claimant is one of the disreputable well off

23 landlords of rented properties. It does not actually cause

24 any serious diminution or any diminution in the defamatory

25 sting of the article. It is not that the word private adds

145

1 nothing of real substance. The point is that there is, as I

2 put it, a slum landlord or a disreputable landlord, and it is

3 interesting that the passage I highlighted and the words

4 complained of, after the long discussion of Mr. Nischal and

5 his squalid property and so on, your Lordship will remember I

6 highlighted, I do not think your Lordship needs to turn it up

7 but it is page 5 of the article on column 1, "Our probe

8 reveals a string of well-off property owners ...".

9 Now, that does not say well-off private landlords.

10 These are well-off property owners who are being paid £650 a

11 month. The claimant is clearly, on any view, part of that

12 list of well-off property owners. So, if I am right about

13 everything else it does not actually matter whether a reader

14 of the article regards them as a private landlord or some

15 other kind of landlord. So that is my first point in

16 response.

17 The second point is this. That housing associations, an

18 informed reader knows that housing associations come in all

19 shapes and sizes. They range from small co-operative housing

20 associations to very, very large corporations and the very,

21 very large corporations have commercial arms as well as

22 non-commercial arms. Indeed, it has been a matter of great

23 political controversy, there have been criticisms of housing

24 associations for risking their housing stock in commercial

25 deals in recent times.

146

1 Doubtless the ordinary reasonable reader does not know

2 all that but what we say the ordinary reasonable reader thinks

3 is that there is something vaguely about housing associations

4 that may not be the same as the conventional private landlord

5 but it would, we say, be a completely false, improper

6 inference from the word housing association to a reader

7 thinking that these are good-hearted charitable, good

8 landlords who could not do anything wrong. In other words the

9 mere use of the word housing association is not sufficient to

10 remove the sting of the libel.

11 An ordinary reader is bound to think that housing

12 associations are good and housing associations are bad. Like

13 private landlords, some rent squalid properties and some do

14 not. That brings me on to the next point that even if an

15 ordinary reasonable reader, the hypothetical one in the

16 middle, were to think that housing associations were bodies

17 which did not distribute profit to shareholders, in other

18 words, they were not designed to make money for third parties,

19 that would not stop them thinking that they were trying to

20 make surpluses and that they may or may not be using those

21 surpluses for good purposes.

22 For example, they may be using that surplus to pay

23 excessively large salaries to their chief executive and their

24 staff. Effectively, that is what the reader is being told.

25 The reader is being told that this Midland Heart is paying a

147

1 large sum, it is one of the well-off property owners that the

2 Mirror has discovered and it is paying a substantial salary to

3 its chief executive who lives in a nice area of the country

4 and it really does strain any reader's credulity to think

5 that, as Mr. Price said I think perhaps only half seriously,

6 that this was simply an interesting fact that they had

7 unearthed which went to colour, it is plainly intended to be a

8 criticism. That is how any reader would read in the context

9 that passage.

10 I accept Mr. Price' submission that the touchstone is

11 reasonableness and it would be wholly unreasonable to try and

12 construe the reference to the salary of the first claimant in

13 the context of this article as really just, "oh, and by the

14 way we found out that this woman earns this amount of money".

15 It is plainly intended as a criticism in the context of this

16 article. It is true to say that there is no comment made

17 about the quality of the properties owned and by inference

18 rented by Midland Heart but we say in the context of the

19 article the inference is obviously beyond any sensible doubt,

20 the article is about squalid properties and a reader would

21 assume that that is why they were being mentioned. Unless, of

22 course, they said, which they could have done, these people

23 are in a different category, they are a different sort of

24 property owners. They happen to own property in this street

25 and that some of the tenants are questionable characters but

148

1 they are not questionable landlords. That is the antidote

2 which is singularly lacking from this.

3 So, we say that the housing association point does not

4 help Mr. Price for all those reasons, it is unlikely that an

5 ordinary reader would have any sophisticated understanding of

6 what a housing association is and even if they had some

7 understanding that would not stop them thinking that housing

8 associations could have rapacious executives who creamed off

9 profits for their own benefit, thus raking it in from housing

10 benefits and so on.

11 It is a matter of common currency that those employed by

12 charitable and other bodies are criticised for the level of

13 their salaries for taking money out of the surpluses and

14 paying themselves. So, that is, we say the sense in which

15 this article would be understood by an ordinary reasonable

16 reader. It is for that reason that we say that there is a

17 meaning similar to or the same as the one pleaded in the

18 particulars of claim.

19 MR. JUSTICE BEAN: If you move from the salary point to the

20 squalid and substandard property point.

21 MR. TOMLINSON: Yes.

22 MR. JUSTICE BEAN: It might be said that the article plainly

23 criticise Mr. Nischal as slum landlord. If we turn to the

24 dentist, Mr. Saund, the feature on him, top of page 2, says he

25 is wealthy and he is making money, there is no suggestion that

149

1 his properties are substandard. Then on the ----

2 MR. TOMLINSON: There is a suggestion, it is plainly suggested

3 that these tenants are of a very dubious nature, they are

4 facing drug charges and so on.

5 MR. JUSTICE BEAN: Yes.

6 MR. TOMLINSON: It is quite true there is nothing said directly

7 about the quality of his properties.

8 MR. JUSTICE BEAN: Then we get to the third page which includes

9 the paragraph about the clients. Mr. Nischal is not alone in

10 making money from the misery of James Turner Street, "our

11 probe reveals a string of well-off property owners" and then

12 the wealthy dentist is mentioned and then the critical

13 paragraph. Could it be that the hypothetical reasonable

14 reader thinks that, well, the suggestion is that Mr. Nischal

15 is a slum landlord -- not much doubt about that -- that

16 Mr. Saund is making a lot of money out of the benefit

17 claimants on James Turner Street and that the claimants,

18 likewise, are making money from residents in James Turner

19 Street but not necessarily by being the landlords of slums.

20 You can make a lot of money from properties even if they are

21 not squalid ----

22 MR. TOMLINSON: My Lord, that is a possible reading but we say

23 that the ordinary reasonable reader does not have to be very

24 avid for scandal to see that this passage appears in the first

25 column of a page headed in very large letters occupying half

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1 of the page "riddled with damp", "a broken boiler", "leaking",

2 "£1,000 a year". It is true, if you read this carefully you

3 see that that referred only to Mr. Nischal's properties.

4 In one of the cases, I think it is Lewis v Daily

5 Telegraph, Lord Reid managed a dialogue between two reasonable

6 readers in a pub and the first will say in this kind of

7 situation, "Well, look, they have not said that these people

8 are renting slums" and the second would say, "oh come off it,

9 what do you think they are doing in this article? Look at the

10 headline, you know, obviously that is what the Sunday Mirror

11 is telling us, that these people are all in it together." As

12 I said in my skeleton it's a rogue's gallery.

13 MR. JUSTICE BEAN: Is that your phrase or someone ----

14 MR. TOMLINSON: My Lord, that is my phrase.

15 MR. JUSTICE BEAN: Not Lord Reid's.

16 MR. TOMLINSON: Not Lord Reid's, I am sure he would have put it

17 more elegantly.

18 The point we make is it is perfectly possible to

19 construe this article to say it is criticising two sorts of

20 landlords, it is criticising Mr. Nischal as the slum landlord

21 and the others as just profiteers but, as it were, at the

22 crucial turning point of the article is the blast from the MPs

23 which contrary to what Mr. Price say do not actually name

24 Mr. Nischal at all and are put in general terms, Mr. Mann

25 saying private landlords are making a killing and often do not

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1 care and Ms Sandys is saying that some private landlords walk

2 away after making a fortune.

3 The criticism is of all private landlords, all landlords

4 of a particular type and no attempt is made to differentiate

5 these two categories in this article. As your Lordship knows

6 in the time-honoured phrase you have to look at "bane" and

7 "antidote". Here there is lots of bane. The article is

8 dripping with bane and antidote we do not find at all. The

9 traditional, certain newspapers which are very careful

10 sometimes about when they make allegations will have a very

11 carefully placed paragraph saying, "it is, of course, not

12 suggested that" or "there is no suggestion that the properties

13 let by these landlords are substandard" or words to that

14 effect. I am sure it could be put much more elegantly, much

15 more pithily in Daily Mirror language, Sunday Mirror language

16 but none of that is to be found in this article.

17 That is why we say that the reader reading it once, I do

18 not think many people are on the train on Sunday morning but

19 perhaps over their breakfast are going to come away with that

20 impression. That is what the law of libel focuses on. As I

21 have said before the hypothetical reasonable reader in the mid

22 point of the scale, I mean there are some people who would

23 read this and think, you know, these are all corrupt tories

24 and friends of Mrs. Thatcher and they are ripping off the

25 citizens of Birmingham. Well, that would be at one end of the

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1 scale, the rather more benign version suggested by Mr. Price

2 at the other end of the scale that the ordinary hypothetical

3 reader in the middle, we say, gets the position in our

4 pleading.

5 My Lord, I am very conscious of the time.

6 MR. JUSTICE BEAN: It is all right Mr. Tomlinson, this is an

7 important case so do not feel you have to rush.

8 MR. TOMLINSON: So the question of serious harm.

9 MR. JUSTICE BEAN: Are you going to say anything about the apology

10 which Mr. Price addressed me on?

11 MR. TOMLINSON: I was going to deal with that under serious harm.

12 MR. JUSTICE BEAN: All right, serious harm.

13 MR. TOMLINSON: My Lord, I have already made some introductory

14 comments about this and in particular made the point that the

15 hurdle is not intended, we say, by Parliament to be anything

16 more than a modest change to the common law.

17 There are two aspects to it, as Mr. Price rightly says,

18 caused or likely to cause harm. We do not accept that likely

19 to cause harm necessarily refers to future harm after the date

20 of the determination. I accepted, when your Lordship asked me

21 the question, that likely meant more likely than not but I did

22 not disavow or I did not mean to disavow the way that it was

23 put by the editor's of Gatley, in other words that likelihood,

24 which is different I accept from tendency, but likelihood

25 includes looking at the way in which the words complained of

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1 are going to adversely effect or are likely to adversely

2 effect the reputation of the claimant.

3 As they say, it is difficult to think of a case where an

4 imputation has a tendency to adversely affect a person's

5 reputation to a substantial degree and not also likely to

6 cause serious harm to reputation. We say that these words,

7 when published, were likely to cause serious harm to

8 reputation.

9 That could be overcome, as it were, if it was then said,

10 well, actually on analysis they would cause no harm at all. I

11 mean, one could think of a situation where damaging words were

12 published to a small number of publishees and the evidence was

13 that nobody believed them. Although they were likely to cause

14 harm because they were damaging, in fact they caused no harm

15 so the serious harm test failed. The claimant fell at the

16 final hurdle, however one likes to put it.

17 We do not accept Mr. Price's analysis that, as it were

18 Parliament envisaged a moving target, so at the moment of

19 publication you ask the question, are they likely to cause

20 future harm? Then at the moment of determination you

21 essentially look backwards unless there is continuing

22 publication. I mean I think that was how Mr. Price put it.

23 He said there was only a likelihood of future harm in a case

24 where the article remained on the internet. That is a

25 completely different case because that is not the statement,

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1 that is not the words complained of causing harm, that is a

2 fresh publication of those words causing harm.

3 MR. JUSTICE BEAN: Put that to one side. I am not sure that the

4 distinction you make, "likely to cause harm at the time of

5 publication" and "likely to cause harm in the future now"

6 matters, does it? Mr. Price's submission that one must show

7 either that substantial harm has been caused and that on just

8 ordinary principles of ----

9 MR. TOMLINSON: The English language ----

10 MR. JUSTICE BEAN: ---- law of tort and proof of damage ----

11 MR. TOMLINSON: Is passed.

12 MR. JUSTICE BEAN: You have to show me it is more likely than not

13 ----

14 MR. TOMLINSON: Yes.

15 MR. JUSTICE BEAN: ---- that damage has occurred.

16 MR. TOMLINSON: Yes.

17 MR. JUSTICE BEAN: Then for the future you have to show me that it

18 is more likely than not that damage will occur.

19 MR. TOMLINSON: Yes.

20 MR. JUSTICE BEAN: The next stage is to say what evidence is

21 required for that but the conceptual question or the meaning

22 of the words that Parliament used does not seem to me to

23 matter ----

24 MR. TOMLINSON: My Lord, I would ----

25 MR. JUSTICE BEAN: ---- how you view it at the time of publication

155

1 or you view it at the time of the trial.

2 MR. TOMLINSON: I would say that you ask the question whether the

3 publication of the words complained of is likely to cause

4 harm. I mean, are they the kind of words which are likely to

5 cause harm? That is not a question of their tendency because

6 that is a lower test as we accept, so when they were published

7 were they likely to cause harm? If the answer is yes then the

8 test is satisfied. That is the point the editors of Gatley

9 make, which I adopt.

10 MR. JUSTICE BEAN: But does it make a difference? Of course, "has

11 caused" must be an enquiry into what has happened before the

12 trial or the trial of the preliminary issue. Publication does

13 not cause harm retrospectively.

14 MR. TOMLINSON: My Lord, it might make a difference in this kind

15 of case because just imagine that the position is, assume that

16 your Lordship is against me on inferences so your Lordship

17 says, well, look, I can't, at least to the relevant standard,

18 draw an inference that just because these words have been

19 published to two million readers that has caused you harm. So

20 you fail on "has caused harm".

21 I say, well, that does not matter because if the

22 position assessed as at the date of publication was that they

23 were likely to cause harm, that is sufficient.

24 MR. JUSTICE BEAN: So the question of evidence of what particular

25 people thought about it will be, would it be relevant at the

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1 damages stage or would it be relevant at all?

2 MR. TOMLINSON: If I was basing my case on likely to cause harm it

3 would not be relevant at all. I mean that is after all the

4 way that libel damages have traditionally been assessed. In

5 other words, one looks at the, I mean the old word is the

6 tendency, but likelihood, as I accept, is a higher test.

7 MR. JUSTICE BEAN: Yes.

8 MR. TOMLINSON: One looks at the likelihood and one does not go

9 around asking individual people, did you read this and did you

10 think less of the claimant for obvious reasons?

11 On the other hand if I am establishing that it has

12 caused harm to my reputation then I have to produce some kind

13 of evidence and I will come on to what that is in a moment

14 because that is a very difficult point we say. If one is

15 assessing likelihood of harm I do not accept that that is

16 exclusively confined to the question of harm after the date of

17 trial or the date of determination.

18 Mr. Price's submission must be that likelihood is only

19 relevant when effectively you can't show past harm but at the

20 date of trial you are trying to prove the likelihood of future

21 harm which, say for some extraordinary circumstances are very

22 difficult to think of, is always going to be an impossible

23 task.

24 On Mr. Price's analysis it is going to be very rare that

25 likely to cause serious harm has any role at all. I think he

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1 more or less said that that was his submission, that really

2 the crucial thing was, has caused serious harm in the past.

3 We do not accept that. We accept that those are alternatives.

4 Now, we say that those are alternatives so if this case was a

5 situation where your Lordship said, well, I mean let me put it

6 in this very straightforward way, if your Lordship thought,

7 had I been making this assessment on 26th January I would have

8 said this is likely to cause harm, but now as I am making this

9 assessment in July and I have no evidence either way, I can't

10 say whether there has been past harm.

11 On Mr. Price's analysis the case would fail at that

12 stage. On my analysis the case will still succeed. It would

13 fail if your Lordship said no harm has been caused, no future

14 harm is likely, so I am ruling out any harm at all.

15 Anyway, my Lord, there is that issue between us about

16 the way that likely harm works. When it comes to the evidence

17 of past harm I have already touched on this point but harm to

18 reputation is essentially something which you may be able to

19 detect some, as it were, evidential traces of it, but you are

20 never going to be able to give direct evidence of it. When

21 pressed by your Lordship, all Mr. Price could give are what

22 essentially are evidential traces. So people say, oh, there

23 is a lot of chatter on the internet, people are repeating this

24 and he then said, "well, you know perhaps you could show that

25 people had spat at you in the street or perhaps" he did not

158

1 use that example but that kind of thing and there are may be

2 cases in which someone has lost their job or something but

3 those actually aren't, none of those are evidence of harm to

4 reputation or rather they are evidence of traces of harm to

5 reputation.

6 The harm that you have in the estimation of people

7 generally is something that you can't directly evidence

8 because without using opinion poles or other forms of evidence

9 of that kind, we say that essentially all the court can do in

10 making that assessment is make an inferential assessment on

11 the basis of a series of factors of which extent of

12 publication is not the decisive factor but it is a very

13 important factor, I mean nature of audience is another,

14 seriousness of allegation.

15 We say, I have made the point already, national

16 newspaper publication, extensive publication, it therefore

17 follows, we say, that the court can properly infer some degree

18 of harm to reputation. Mr. Price's binary approach

19 effectively suggesting there are only two categories of

20 people, there are the ones who know the claimant, who know it

21 is false so there is no harm and there are the ones who do not

22 know the claimant so they are not interested so there is no

23 harm, therefore there is no harm at all. That spread as a

24 general argument shows that if that is a route that the court

25 was tempted to go down it would effectively remove virtually

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1 every libel case.

2 What it misses out is a large category in the middle who

3 do not know the claimants enough to know the truth but do know

4 something and so come across them in some way and that is

5 where damage to your reputation occurs, it is not among your

6 close friends or those people who live in remote areas of the

7 world and never come across you, it is the others. The others

8 are the ones who have got some interest in housing. Your

9 Lordship will remember Benefit Street was a very, very big

10 topic at the time and that was particularly ----

11 MR. JUSTICE BEAN: I did not watch the programme as such but there

12 was massive news coverage.

13 MR. TOMLINSON: My Lord, neither did I but there was massive

14 coverage, it was discussed in Parliament, it even made its way

15 to the front page of The Times.

16 MR. JUSTICE BEAN: Yes.

17 MR. TOMLINSON: The position was that actually, and particularly

18 in those in Birmingham and so on, one can properly infer that

19 they would have paid attention to the question of who was

20 involved in it and what they were doing. Some of those people

21 will have known the claimants and known it was all ridiculous,

22 others will have had their doubts and it is in those people

23 that we say there is serious damage to reputation that the

24 court can properly infer.

25 What the court can't do is to say, well, there must be

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1 some evidence of adverse consequences, you know, Mrs. Cooke

2 must be able to say, "well, someone crossed the road who

3 previously had spoken to me" or "I used to be invited to five

4 meetings a week and I am now only invited to three" that sort

5 of evidence is not what is required to demonstrate serious

6 harm. That is putting the bar for too high.

7 Mr. Price had an elaborate submission about a charitable

8 corporation and how it had to demonstrate some form of

9 financial loss. My Lord, that cannot be right. The position

10 is very straightforward, at common law -- and this was

11 challenged in the House of Lords unsuccessfully in Jameel -- a

12 corporation can sue for damage to its reputation without

13 showing financial loss. What section 1(2) has done is to

14 change that in relation to trading corporations, so

15 corporations which are trading for profit have to show

16 financial loss.

17 In relation to corporations for not trading for profit

18 it just imposed the same serious harm threshold that it has

19 imposed on individuals. It is not added in financial loss.

20 Because the classic problem from a corporation is that it is

21 very difficult to link a defamation and change in its

22 financial position, it is very difficult to prove causation.

23 Parliament has decided that for types of trading

24 corporations, profit making corporations whose activities are

25 disproved of, there should be that very high hurdle placed in

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1 their way but it is certainly not decided that that should be

2 the position in relation to a corporation of the kind of the

3 second claimant's kind. That would be to add a requirement

4 into the Defamation Act which simply is not there. It is not

5 a body which trades for profit, as has been accepted by

6 Mr. Price and he can't, as it were, introduce by the back door

7 a requirement which is accepted is not there at the front

8 door.

9 Damage to the reputation of a company which does not

10 trade for profit is exactly the same as damage to a

11 corporation was until 1st January 2014. In other words, it

12 lowers in its estimation among the members of the public and

13 as a result the corporation has been offered opportunities,

14 but people do not want to work for it and so on and so forth.

15 That does not have to be cashed out in money terms to be

16 actionable law of defamation. My Lord, I say that he is wrong

17 about that point.

18 The final point I want to make is just in response to

19 Mr. Price's document. I will say nothing at all about the

20 misuse of the term deconstruction in the first line. His

21 first point is the one which I have in substance already dealt

22 with. He says effectively anybody who knows anything about

23 Midland Heart knows that they are good guys and, therefore,

24 their reputation is not damaged. The answer to that is the

25 point that I have just made, that there is a group a people

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1 who know a bit about them who have heard of them but do not

2 know enough about them to know that this is all nonsense and

3 that is where the damage takes place.

4 Again the same point arises in relation to his second

5 submission, that he assumes that the world falls into two

6 categories, those who know them who are not influenced by it

7 and those who do not know them who will forget about them.

8 That is not true because as I say there is probably the

9 largest category or certainly a large category of those in the

10 middle who have some interest in them, knowledge of them but

11 do not know enough to know it is nonsense.

12 Then the final point is really the crux of the case. It

13 is right to say that section 1 requires prove of serious harm

14 to reputation. It is noteworthy that when Mr. Price

15 summarises the position he in fact, we say, gives himself away

16 because he consistently translated serious harm to reputation

17 as being serious adverse consequences for the claimant. Here

18 he says section 1 requires proof of actual or future serious

19 harm. No, it does not. Section 1 requires proof of actual or

20 likely serious harm to reputation.

21 In Jameel, he is wrong about Jameel, one of the factors

22 that is always taken into account in Jameel is that there is

23 no harm, certainly in my experience. It is right that the

24 Thornton threshold is satisfied by a mere tendency and that

25 the common law does not require evidence of damage in order to

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1 taken substantial damages but that is just to assume what he

2 is trying to prove.

3 The question here is the claimant must establish that

4 publication has caused or is likely to cause serious harm to

5 reputation and the question is, how does the claimant do that?

6 Can the claimant point to the seriousness of the allegation,

7 the extent of publication and so on or does the claimant have

8 to produce something specific? We say that in the

9 overwhelming majority of cases it will not be possible for the

10 claimant to produce anything specific, that the claimant will

11 have to rely on the extent of publication, the seriousness of

12 the allegation and so on. That is what Parliament understood

13 was going to happen and Parliament was not seeking to raise

14 the bar in such a way that a national newspaper could publish

15 a defamatory allegation to two million people and it was not

16 actionable.

17 My Lord, I have said I was going to say something about

18 the apology and I have not.

19 MR. JUSTICE BEAN: Yes, please.

20 MR. TOMLINSON: I think I have accepted the apology can mitigate

21 the harm in the sense that people reading the apology will at

22 least come away with the view that Midland Heart was

23 mistakenly included in the article and with the view that it

24 is a non-profit organisation and is not a slum landlord.

25 Whether that will dispel all their questions is an interesting

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1 one. Mr. Vogue(?), his evidence was that it raised in his

2 mind questions as to what was in fact going on. My Lord, I

3 accept that there is some element of mitigation but I do not

4 accept, for the obvious reason, that the readership of the

5 apology is going to be very different to the readership of the

6 article.

7 I do not accept that it is something that wholly removes

8 the harm. It can't do that, particularly bearing in mind its

9 terms. It can do that in part, but it cannot do that

10 entirely. It is perfectly possible, even for a reader who has

11 read both, for them to think, "well, they are now saying it is

12 a mistake. What was it doing in the article? This is all

13 very strange. There must be more to it than that". There

14 are certainly some readers who are going to react in that way.

15 In other words, the question marks that they have about the

16 reputation of Midland Heart will remain so the damage to the

17 reputation will not be wholly removed by the publication of

18 the apology.

19 Then, as I say, one could assume I think fairly that

20 virtually every reader of the Sunday Mirror or a very high

21 proportion of them will have read the original article.

22 Perhaps not those who only read the sport but on the front

23 page and pages 4 and 5, but one certainly cannot say assume

24 anything like every reader would have read the apology.

25 My Lord, is there anything more that your Lordship

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1 wishes me to cover on the apology or, indeed, anything else?

2 MR. JUSTICE BEAN: I will have to think about whether that is an

3 answer, but I think you have set your stall out very clearly.

4 MR. PRICE: I am concerned, given the time, but my learned friend

5 has mentioned something I thought was accepted which is fairly

6 fundamental which is the meaning of "likely".

7 MR. JUSTICE BEAN: Yes. How would you like to deal with it?

8 MR. PRICE: Well, there are two issues. Does likely real address

9 harm and if it does not what does likely actually mean when

10 you are looking back or when you are at the date of

11 publication looking forward, does it satisfy on the facts?

12 The short point is that looking at the notes (unclear) the

13 future. Gatley is wrong when it talks about "was likely",

14 shifting it back to the date of publication.

15 That is the big battle ground because that is where it

16 will make a different because to say something is likely at

17 the date of publication is a far lower level than seven months

18 later or six months later at the date of trial looking back to

19 see whether it has actually been caused. It is a really big

20 point.

21 MR. JUSTICE BEAN: It is a big point, certainly.

22 MR. PRICE: I did not develop it on the law.

23 MR. JUSTICE BEAN: Mr. Tomlinson accepted and has not resiled from

24 it, that likely means more likely than not but that does not

25 answer the question of whether you consider whether the

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1 publication, which is when the cause of action accrued, was

2 likely then to cause serious harm, or whether you divide it

3 into "has caused" up to the time of the trial and "is likely

4 to cause" in the future.

5 MR. PRICE: Yes.

6 MR. JUSTICE BEAN: Your submission that is the virtue that the Act

7 says "is likely" not "was likely", on the other hand it has

8 the defect that the question of whether a publication is

9 defamatory or not one would have thought does not depend on

10 the date on which you ask the question. It would be rather

11 strange if Mr. Tomlinson said, "Supposing I was able to go

12 into immediate session, as it were, on the Monday, and try

13 this question, at that stage one will be looking at, is this

14 legal to cause serious harm? If so, then it is defamatory.

15 It is pretty strange if six months later or twelve months

16 later, or whatever it is, the question of whether the

17 article is defamatory gets a different answer.

18 I do not know, I have not decided how to resolve these

19 points but those are the points on either side, are they not?

20 MR. PRICE: But it has only arisen as a point in my learned

21 friend's reply, that is what is giving me cause for concern

22 because, in my submission, it is absolutely plain that likely

23 refers to after the date of the determination.

24 MR. JUSTICE BEAN: To the future.

25 MR. PRICE: If you bring it back to the beginning then the bar has

167

1 not been raised very much at all. That is an argument. I

2 will still say on the facts of this case it has been raised

3 enough but it is an absolutely crucial point on construction.

4 MR. JUSTICE BEAN: But I am not sure, neither of you has anything

5 more to offer in the sense of this has not been considered in

6 the authorities, there does not appear to be any authoritative

7 statement anywhere of what the answer is and I have just got

8 to try and work it out.

9 MR. PRICE: I would have made a number of submissions as to why

10 ----

11 MR. JUSTICE BEAN: Please do.

12 MR. PRICE: I am conscious of the fact this is the first time and

13 it is a big point.

14 MR. JUSTICE BEAN: Well, I am not sure about that.

15 A SPEAKER: I think you made the submissions in your skeleton

16 argument.

17 MR. PRICE: They are in my skeleton argument.

18 MR. JUSTICE BEAN: Yes.

19 MR. PRICE: I do not want to detain the court any longer than I

20 need to but the words "is likely" are commonly used to refer

21 to the (unclear due to rustling of papers). The introductory

22 notes (unclear) my Lord, how would the court actually approach

23 the matter if it was, as it were, now looking back to the date

24 of publication and seeking to assess whether it was likely to

25 cause serious harm? What factors would the court take into

168

1 account?

2 It would be a pretty arid exercise when the court, six

3 months down the line, has the material before it as to how it

4 has actually panned out. In my respectful submission it would

5 simply be an absurd construction for the court to go back in

6 time. It may be I think I need to add to my written

7 submissions on this point.

8 Perhaps I could let your Lordship know very soon but if

9 it was something that was going to be contested I really did

10 anticipate that this was going to be a big battle ground, I

11 certainly could have amplified my written submissions and oral

12 submission and focused on this particular point in greater

13 detail. Of course, the legal defamation text book is

14 advocating the interpretation which my learned friend is now

15 clearly contending and giving that as a reason as to why

16 really it has made no difference or very little difference at

17 all. That is simply why I observe it is a big point.

18 MR. JUSTICE BEAN: Yes.

19 MR. PRICE: I am very conscious of the time and it has been a long

20 day.

21 MR. JUSTICE BEAN: You are politely saying you are very conscious

22 of the time. I do not mind sitting on. I don't mind if you

23 are both available and those instructing you are prepared to

24 put up with the additional cost, I do not mind coming back

25 tomorrow. I don't mind if it was tomorrow, I do not think it

169

1 should drift on further if you want to put in any further

2 written submissions tomorrow morning.

3 The trouble with that is then Mr. Tomlinson would want

4 to reply and once everybody is not in the same room it all

5 becomes rather strung out. I am not bringing down the

6 guillotine now, but would you like to speak to Mr. Tomlinson

7 and think about it for a couple of minutes and decide how we

8 are to go forward?

9 MR. PRICE: I am happy to do that if your Lordship wishes to rise

10 for a moment.

11 MR. JUSTICE BEAN: I will rise for a moment and hover outside.

12 MR. PRICE: I am most grateful.

13 MR. JUSTICE BEAN: I am only sitting tomorrow to hand down two

14 judgments and that will not take long.

15 (A short adjournment)

16 MR. JUSTICE BEAN: Yes, Mr. Price.

17 MR. PRICE: I am most grateful to your Lordship and also to the

18 court staff.

19 MR. JUSTICE BEAN: Yes.

20 MR. PRICE: If one goes to Gatley which is in my learned friend's

21 bundle of authority at tab 4 paragraph 2.6 page 41 the tense

22 is of course the most important part, paragraph 2.6 says

23 Defamation Act. The second sentence starting at the end of

24 line 2: "Proof that serious harm to reputation has actually

25 occurred will obviously suffice but the claimant need only

170

1 prove that such harm was likely." It is likely, Parliament did

2 not say likely to have been caused. It used a phrase which is

3 very commonly used to refer to future harm.

4 What options would there have been if Parliament wanted

5 to look to the date of publication? It could have obviously

6 used calculated. Calculated is a word used in section 2 and

7 section 3 of the Defamation Act 1952 in relation to the need

8 to prove special damages. Does your Lordship have Gatley?

9 MR. JUSTICE BEAN: I have upstairs but I did not bring it down,

10 just read sections 2 and 3 of the 1952 Act to me.

11 MR. PRICE: It is the 52 Act, my Lord, yes. This is section 2

12 relating to slander: "In an action for slander in respect of

13 words calculated to disparage the plaintiff in any office,

14 profession, calling, trade or business held or carried on by

15 him at the time of the publication, it shall not be necessary

16 to allege or prove special damage, whether or not the words

17 are spoken of the plaintiff in the way of his office,

18 profession, calling, trade or business."

19 MR. JUSTICE BEAN: Yes.

20 MR. PRICE: Then malicious falsehood: "(1) In an action for

21 slander of title, slander of goods or other malicious

22 falsehood, it shall not be necessary to allege or prove

23 special damage — (a) if the words upon which the action is

24 founded are calculated to cause pecuniary damage to the

25 plaintiff ... ". Then there are other references to

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1 calculated in that section.

2 MR. JUSTICE BEAN: Yes. Gatley, the editors, with respect,

3 obviously have not thought of this point because they use, in

4 the two sentences to which you have drawn my attention they

5 recite the Act and then say "proof that serious harm has

6 actually occurred" will obviously suffice; yes, but the

7 claimant need only prove that such harm was likely.

8 (Laughter)

9 MR. PRICE: Why would you ever need to prove that it had happened?

10 It is clearly a lower hurdle. It is not just that "is likely"

11 obviously refers to the future, it is that "has caused"

12 obviously relates to the past.

13 MR. JUSTICE BEAN: Yes.

14 MR. PRICE: What else could Parliament be doing?

15 MR. JUSTICE BEAN: Yes.

16 MR. PRICE: We would essentially be back to the common law

17 tendency test, essentially. Depending on what the court would

18 look at one has to ask if your Lordship is going back in time,

19 ignoring what has happened subsequently in judging the

20 position on 26th January, what are the factors that your

21 Lordship takes into account in order to determine whether the

22 publication is likely on that date to cause serious harm to

23 reputation. You have to look at the words and nature of the

24 allegation and the extent of publication.

25 Why would Lord McNally be saying that the claimants need

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1 to consider carefully whether actual harm has been caused?

2 Clearly Parliament was trying to raise the bar and would it

3 actually do so? Gatley suggests that it would not do so.

4 Then we come on to what is meant by likely in this context. I

5 do have a case in malicious falsehood which I brought along in

6 case this got raised which deals with what is meant by

7 calculated in section 3 of the Defamation Act 1952, if I can

8 hand that up. It is the IBM case. This was a trade dispute

9 over, I think it was, the use of a name. The defendants who

10 were a small organisation up against IBM put together a

11 leaflet which had a pop at IBM and distributed this leaflet I

12 think at various meetings of customers of IBM. They were

13 sued, among other claimants, for causes of action for,

14 malicious falsehood. In relation to what was meant by

15 calculated Lewison J referred at paragraph 74, I am sorry,

16 there are no page numbers, it is towards the end.

17 MR. JUSTICE BEAN: 74?

18 MR. PRICE: Yes, paragraph 74, it is about three or four pages

19 from the end, and refers to a judgment of Gray J, if I can

20 invite your Lordship to read paragraph 74.

21 MR. JUSTICE BEAN: (Pause) Yes. Calculated means likely.

22 MR. PRICE: Yes, so what is the exact exercise that the tribunal

23 of fact is undertaking if one applies a likelihood test to the

24 date of publication to that at the date of publication it was

25 more probable than not that harm would occur in the future,

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1 would that be the test? In which case you would have to

2 discount something which might well happen or might be a

3 possibility. You might have to depending on the terminology

4 and if I had to direct my submissions on the facts of this

5 case I would submit that the claimant cannot get higher than

6 something that might well happen or was a possibility.

7 These are questions that would have to be answered if

8 your Lordship did accept that it was a test that jumped back

9 to the date of publication being made six months later and for

10 all the reasons set out in my skeleton argument that is

11 clearly not what Parliament was contemplating. It clearly

12 offends the ordinary meaning of the words and, therefore, must

13 be rejected.

14 MR. JUSTICE BEAN: I think maybe what is between you and

15 Mr. Tomlinson on this point is less a question of statutory

16 interpretation than a matter of evidence.

17 MR. PRICE: Yes.

18 MR. JUSTICE BEAN: Mr. Tomlinson says that serious harm to

19 reputation can be inferred in the statement unpleasant enough

20 to use a non-technical word. You say it cannot, it is to be

21 proved. It has to be proved either as something which has

22 happened or it has to be proved that it is more probable than

23 not that it will happen and that it cannot be assumed or

24 simply inferred from, for example, the large readership of the

25 Sunday Mirror. I understand that submission and it is not one

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1 with which Mr. Tomlinson agrees but the resolution of that

2 dispute does not, I think, depend on whether you are viewing,

3 whether I am viewing two periods, past and future, or whether

4 it might have led to a different result if I tried this case

5 today after publication. It is a different approach to

6 evidence, proof, inference rather than being critical on what

7 day or making a snapshot.

8 MR. PRICE: There is that but it is important to work out exactly

9 what it is has to be proved. I am not saying there is a

10 blanket rule against drawing inferences at all. What I am

11 saying is you can't just rely on the size of the publication

12 and the nature of the allegation. So long as we are looking

13 back from today's date nothing I submit should in any way be

14 seen as limiting the ordinary powers of the court to draw

15 inferences from matters that are properly admissible towards

16 the relevant legal test. I am not going to repeat this point

17 but in terms of what is meant by serious reputation it set

18 out, serious harm to reputation, sorry, my Lord, it is set out

19 clearly in paragraph 33 of my skeleton.

20 MR. JUSTICE BEAN: Yes, it is.

21 MR. PRICE: I am most grateful.

22 MR. JUSTICE BEAN: Thank you very much, Mr. Price.

23 Mr. Tomlinson, as the burden is on you you have the last

24 word but I am not requiring you to exercise it, merely to tell

25 me whether you wish to.

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1 MR. TOMLINSON: My Lord, just very, very narrowly on this very

2 last point. The section says the publication is likely. That

3 is completely neutral as between whether the date on which you

4 do the consideration is the date of publication or the date of

5 hearing. Mr. Price says, well, it must mean the date of

6 hearing ----

7 MR. JUSTICE BEAN: Because that is the only one that makes sense

8 for "has caused".

9 MR. TOMLINSON: That is because that is the only one that makes

10 sense for "has caused" but the obvious, as it were, point in

11 between and which the explanatory notes refer to is the date

12 of issue, the explanatory notes say, I do not know if your

13 Lordship has looked at this but what they say is "... a

14 statement is not defamatory unless its publication has caused

15 or is likely to cause serious harm to the reputation of the

16 claimant. The provision extends to situations where

17 publication is likely to cause serious harm in order to cover

18 situations where the harm has not yet occurred at the time the

19 action for defamation is commenced."

20 That is the section that Mr. Price referred to, the note

21 that he referred to but I do not think quoted. That would

22 then deal with both possibilities and would also deal with

23 your Lordship's concern which would otherwise lead to the

24 absurdity that you could have a situation where something was

25 defamatory, was not defamatory and then was defamatory again

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1 and stopped being defamatory, depending on the state of the

2 evidence at any given which would be a very unsatisfactory

3 situation.

4 The ordinary principle, if you assess it at the date of

5 commencement then that would solve the problem and we say that

6 that is the date your Lordship should choose in this case. I

7 do not think there is anything more to add.

8 MR. PRICE: I say, if that is the date, then your Lordship has to

9 choose and nothing has happened between the date of

10 commencement and the date of trial.

11 MR. JUSTICE BEAN: I understand what you say and I think, as I

12 say, it comes back to what you say about evidence and

13 inference and what Mr. Tomlinson says about evidence and

14 inference. Although the statutory interpretation point is

15 likely, was likely so on is very interesting and I shall

16 certainly grapple with it. At the moment I do not think it

17 could affect the outcome, but there you are. You have both

18 given me a great deal to think about. Thank you very much.

19 MR. TOMLINSON: I am sorry, we have kept your Lordship.

20 MR. PRICE: It has been a long day.

21 MR. TOMLINSON: We have kept everybody else so late, I apologise.

22 MR. JUSTICE BEAN: I am very grateful to the court staff as well

23 as to you, thank you very much. I will, of course, reserve

24 judgment and I will let you have it as soon as I can.

25 MR. PRICE: May I assume that that will not be before the

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1 vacation?

2 MR. JUSTICE BEAN: I think it is most unlikely to be before July

3 31st. What I will ask, could you, when I have arisen, inform

4 my clerk of whether if, for example, I am in a position to

5 hand down judgment in the second week of August, you or either

6 of you will be away. If you are going to be away when I hand

7 down judgment I would want there to be a contact person on

8 each side, whether solicitor or counsel, who could deal with

9 corrections and then, if either or both of you was away I

10 could deal with the questions of form of order, permission to

11 appeal, costs and whatever when you are back. I would not,

12 obviously I wouldn't want in that situation to sit on the

13 decision or keep it secret for weeks until we were all back in

14 London together.

15 MR. TOMLINSON: We will let your clerk know.

16 MR. JUSTICE BEAN: Would you do that? I will return these files

17 which were not used and the newspaper. Thank you.

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