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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB) (13 August 2014) URL: https://www.bailii.org/ew/cases/EWHC/QB/2014/2831.html Cite as: [2014] EMLR 31, [2014] WLR(D) 379, [2015] 2 All ER 622, [2015] WLR 895, [2014] EWHC 2831 (QB), [2015] 1 WLR 895 |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
RUTH COOKE MIDLAND HEART LIMITED |
Claimants |
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- and - |
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MGN LIMITED TRINITY MIRROR MIDLANDS LIMITED |
Defendants |
____________________
David Price QC (of David Price Solicitors and Advocates) for the Defendants
Hearing date: 23rd July 2014
____________________
Crown Copyright ©
Mr Justice Bean :
"Mr Nischal, once an aide to India's assassinated Premier Rajiv Ghandi [sic], is not alone in making money from the misery of James Turner Street. Our probe reveals a string of well-off property owners are paid up to £650 a month by the Government through the housing benefit system. The owner of homes occupied by two of Benefits Street's main characters is a wealthy dentist who also owns a third property in the street.
Three more homes in the road where residents claim they have been portrayed as scroungers and lowlife by Channel 4 are owned by the Midland Heart housing association. Its chief Ruth Cooke, 45, earns £179,000 a year and lives in a large house in Stroud, Glos."
"(a) the Second Claimant, which is owned or run by the First Claimant, is one of the disreputable, well-off private landlords of rented properties on James Turner Street who make large amounts of profit, or "rake it in", by letting out squalid and sub-standard houses to people in receipt of housing benefit and overcharging in rent, thereby making money from the misery of James Turner Street residents and getting rich from taxpayers' money; and that
(b) the First Claimant is personally responsible for this seriously improper conduct of the Second Claimant, and has herself personally profited and become rich from that misconduct."
"(1) Whether the words pleaded in paragraph 8 of the Amended Particulars of Claim (in the context of the entire article) bear the meanings pleaded in paragraph 9 or any other meaning that (subject to serious harm) is defamatory to either or both of the Claimants and, if so what defamatory meaning the words bear in relation to each Claimant.
(2) Whether either or both of the publications referred to in paragraphs 5 and 6 of the statement pleaded at paragraph 8 (in the context of the entire article) has caused or is likely to cause serious harm to the reputations of either or both of the Claimants within the meaning of section 1 of the Defamation Act 2013."
The meaning issue
"The legal principles relevant to meaning … may be summarised in this way: (1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…"…. (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense".
"Libel is concerned with the meaning of words. Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be "right" conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the "right" meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the "right" meaning by the adjudicator to whom the law confides the responsibility of determining it.
That is what makes the meaning ascribed to words for the purposes of the tort of libel so artificial."
"Our probe reveals a string of well-off property owners paid up to £650 a month through the housing benefits system."
At no stage is Midland Heart distinguished from the other landlords mentioned in the article. Mr Tomlinson describes the article as all bane and no antidote.
"(a) D1 has found out that C2 owns properties in the street; C1's earnings; and where she lives (which contrast with the residents of the street and provide colour to the article);
(b) it is interesting that a CEO of a housing association is being paid that amount of money; or
(c) D1 should not have included Cs because C2 is a housing association."
"In the spring of 1964 two short letters appeared in the correspondence columns of the Daily Telegraph. … Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference about the plaintiffs' characters or conduct which he might have drawn from what he read would have been one of first impression. Yet in this court three lords justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs' character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964.
Nevertheless, the artificial and archaic character of the tort of libel makes the exercise necessary in this appeal, even though in the end we return to the first impression with which we began."
(a) Midland Heart, whose chief executive is Ruth Cooke, is one of the well-off landlords of rented properties on James Turner Street who let houses to people in receipt of housing benefit at rents of up to £650 per month, thereby making money from the misery of James Turner Street residents; and that
(b) Ms Cooke is personally responsible for this conduct of Midland Heart, and has herself profited and become rich from it, in that she is paid £179,000 a year and lives in a large house in Gloucestershire.
The apology
"Midland Heart and Ruth Cooke: An Apology
Last week the Sunday Mirror included Midland Heart Housing Association and its chief executive Ruth Cooke in our article "Millionaire Tory cashes in on TV Benefits Street".
Midland Heart is a not for profit housing and care charity, and any surplus made by it is reinvested into its homes for the benefit of its customers.
Midland Heart and Mrs Cooke take their responsibility to support customers and the communities they live in very seriously.
We did not intend to include them in the article and wish to apologise to both Midland Heart and Mrs Cooke for our mistake."
Evidence on the issue of serious harm
The Defamation Act 2013
"(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant."
(2) For the purposes of this section harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss."
"The section builds on the consideration given by the courts in a series of cases to the question of what is sufficient to establish that a statement is defamatory. A recent example is Thornton v Telegraph Media Group Ltd in which a decision of the House of Lords in Sim v Stretch was identified as authority for the existence of a "threshold of seriousness" in what is defamatory. There is also currently potential for trivial cases to be struck out on the basis that they are an abuse of process because so little is at stake. In Jameel v Dow Jones & Co it was established that there needs to be a real and substantial tort. The section raises the bar for bringing a claim so that only cases involving serious harm to the claimant's reputation can be brought".
"A statement is not defamatory unless its publication has caused or is likely to cause substantial harm to the reputation of the claimant."
The Joint Committee on the draft Bill recommended replacing "substantial harm" with "serious and substantial harm". In the event the Bill introduced by the Government in 2012 used the phrase "serious harm". It is obvious, without the necessity of referring to Hansard, that "serious harm" involves a higher threshold than "substantial harm" would have done; and also that as the Explanatory Notes put it, it "raises the bar" over which a claimant must jump.
"Our view is that the serious harm test would raise the bar to a modest extent above the requirement of the current law."
How can serious harm can be proved?
"(a) The establishment of "actual" or "likely" harm to reputation presents a number of evidential difficulties. There are a number of obvious reasons for this:
(i) "Reputation" is the sum of the estimations of a person by other people. It is not something that can be "measured" with any degree of accuracy. In contrast to say, financial damage or physical damage, there is no generally accepted way of ascertaining the extent of actual or likely reputational damage.
(ii) Even in the case of relatively small circulation defamatory statements, it is never possible to ascertain who, exactly, has read them and what effect they have had on the mind of such readers. When considering damage the Court always takes into account the propensity of defamatory statements "to percolate through underground channels and contaminate hidden springs", what the Australian courts have called the "grapevine effect" (see generally Cairns v Modi [2013] 1 WLR 1015 at [26]). The position is plain and obvious where the defamatory statement is published to millions in a national newspaper.
(iii) Witnesses who have read the defamatory statement and draw it to the claimant's attention will often be people known to the claimant who will not believe it (or will not say if they do). As a result, their evidence is of limited value.
(iv) Actual damage to reputation will be caused when individuals who do not know the claimant read the defamatory statement and then take it into account in forming their views of the claimant. There is often no way in which the claimant will know about this change in estimation. A reader may "demote" the claimant in a list of social contacts or potential business partners or employees, or leave the claimant off altogether. A reader may decide to avoid dealing or engagement with the claimant or to reduce such dealing or engagement. By their very nature decisions of this kind will often never come to the claimant's attention.
(b) It is for these kinds of reasons that the Courts have never, in defamation cases, sought to engage in any sophisticated evidential investigation of the extent of "damage to reputation" but have, rather considered the point in broad terms. The Courts will usually look at the seriousness of the allegations and the extent of their publication and then carry out a broad assessment of damage. A sophisticated "analytical" approach is not appropriate (see, most recently, Cairns v Modi [2013] 1 WLR 1015 [35] to [37]). In Cairns, the Court undertook agreed with the judge's "broad assessment", and clearly accepted that substantial damage to reputation had been caused by the publication of a single "tweet" to 65 people.
(c) The Court should employ a similar "broad assessment approach" when considering the likelihood of serious harm under section 1(1). Two considerations are of paramount importance: the seriousness of the allegations and the extent of the circulation of the libel. Consistently with the policy of the 2013 Act and this general approach a serious libel circulated to a very large number of publishees will inevitably pass the "serious harm" test.
(a) "The fact that Midland Heart is dependent on grant and contract income for which it bids on competitive tender;
(b) The fact that maintaining a strong reputation for the delivery of high quality services is central to its success in competitive tenders. The suggestion that it fails in its delivery of services is bound to cause those who award contracts and grants to question whether it should receive public money. In particular, although Midland Heart is not aware of any contract being lost it often does not know the reasons for the loss of contracts……
(c) The claimants are not in a position to adduce evidence about specific individuals who, as a result of reading the Article "think less" of them. In the nature of these things, such evidence is in practice almost always impossible to obtain. The actual and likely serious harm to Claimants' reputations will be in the estimation of those who do not know them but will now know them as "dodgy landlords" associated with Benefits Street. The purpose of this action is to publicly vindicate the claimants in the face of such an allegation."
(a) "Where there is no threat of future publication, if no actual serious harm has been proved at a determination a number of months after publication, it is hard to see how a claimant could establish that future serious harm was more probable than not.
(b) Where the claimant cannot rely on the risk of future harm, he must prove that serious harm has occurred by the date of the determination. The claimant's belief that it has or the existence of cause for concern that it has is insufficient. It is common (and understandable) that a claimant has a heightened sense of concern as to the consequences of a publication.
(c) The limited common law requirement of a tendency to cause harm is no longer sufficient. This simply involves ascertaining whether the publication complained of conveys the allegation and if so, considering its capacity for harm in isolation……
(d) If there are no tangible adverse consequences to the claimant by the time of a determination many months after publication it is difficult to see on what basis the claimant can establish that serious harm has been caused.
(e) We live in a world where people are quick to express their views, particularly if adverse. Customers and employees of large corporations are uninhibited in expressing complaints in a variety of evident ways such as social media accounts, online reviews, customer "helplines" and staff "feedback". Social media allows defamatory allegations quickly to "go viral" or at least for there to be some lesser form of visible republication and comment (if, of course, anyone is interested in them). Media publications generally invite reader comments. If a media publication has caused serious harm to reputation there will be evidence of it.
(f) In the absence of such evidence, the claimant may seek to infer that it has been caused, relying on the nature of the allegation and the extent of publication. The court should be wary of such attempts, which have the potential to lower or remove the hurdle set by s.1. Passing references in media publications are generally transient. Even when the entire article remains online once it has disappeared below the early search entries its potential for harm is significantly reduced. Where it has been quickly removed and an apology published, its capability for future harm can be "removed altogether". In any event, the reputations of large commercial organisations and their CEOs are comparatively resilient and business decisions are rarely affected by a passing adverse reference in a media publication.
(g) Of course, there will be cases where serious harm is caused to even the most resilient of reputations, but, if so, it will be evident. In the absence of such evidence, it would be wrong, in principle, to infer serious harm to reputation simply because the claimant can derive a meaning that has a tendency to cause harm from a widely published media article."
Conclusion