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Cite as: [2013] EWHC 2201 (QB)

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Neutral Citation Number: [2013] EWHC 2201 (QB)
Case No: 1HJ/13/0467

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
26/07/2013

B e f o r e :

MRS JUSTICE NICOLA DAVIES DBE
____________________

Between:
Nigel Waterson
Claimant
- and -

Stephen Lloyd MP
Rebecca Carr
Defendant

____________________

Mr Desmond Browne QC and Mr David Hirst (instructed by Irwin Mitchell LLP) for the Claimant
Mr Richard Rampton QC and Mr Ian Helme (instructed by Goodman Derrick LLP) for the Defendants
Hearing dates: 16 July 2013

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mrs Justice Nicola Davies DBE:

  1. The nature of the claimant's claim for libel in relation to two spoof election newspapers by the defendants during the 2010 General Election was set out by Richards LJ in the judgment of the Court of Appeal [2013] EWCA Civ 136 as follows:
  2. "1. Mr Nigel Waterson (the respondent) was formerly Conservative Member of Parliament for Eastbourne. At the general election in May 2010 he lost his seat to the Liberal Democrat candidate, Mr Stephen Lloyd (the first appellant). He subsequently brought a claim in libel against Mr Lloyd and Mr Lloyd's campaign agent, Ms Rebecca Carr (the second appellant), in respect of two pieces of campaign literature produced and distributed by the appellants in the constituency in the run-up to the general election. The appellants raised the defence of honest comment.
    2. Following cross-applications for summary judgment, Tugendhat J handed down a judgment on 8 December 2011 ("the first judgment") in which he determined the meanings of the words complained of and ruled that those meanings constituted defamatory allegations of fact rather than comment. On consideration of a draft of the first judgment and before the judgment was handed down, the appellants applied for permission to amend the defence to plead justification in respect of the factual meanings identified by the judge. For reasons given in a further judgment handed down on 13 December 2011 ("the second judgment") the judge dismissed the application. As a consequence of those rulings, summary judgment was entered for Mr Waterson.
    3. Permission to appeal against the first judgment was granted by Dame Janet Smith. Permission to appeal against the second judgment was granted at a later date by Norris J, sitting as a judge of the Court of Appeal. The appeals came on for hearing together before us. Having heard argument on the first appeal, however, we decided to reserve judgment on it and to adjourn the hearing of the second appeal, the need for which appeared likely to depend on the terms of our judgment on the first appeal. Accordingly, this judgment deals only with the first appeal.
    The first publication
    4. The two publications complained of each took the form of a single folded sheet with the broad appearance of a free local newspaper but containing nothing but Liberal Democrat campaign material. They were two in a series of publications of that character.
    5. The first publication complained of is headed "Sussex Courier", below which there appear in small black capitals the words "New issue, March 2010", and in slightly larger red capitals the words "Your free local newspaper".
    6. On the front page, in bold capitals some 4 centimetres high, is printed the headline "Expenses scandal MP faces defeat", which in strict pleading terms may not form part of the words complained of but provides important context for those words and is certainly included within the general ambit of the complaint. The article underneath the headline is in three columns and is said to be "By Jonathan Walsh Chief Political Correspondent". Mr Waterson does not complain of the first five paragraphs of the article (these explain why it is said he was facing defeat), but he does complain of the following three paragraphs which read as follows:
    "The borough of Bromley is where Mr Waterson and his family live, more than 60 miles from his constituents.
    Taxpayers have paid almost Ł70,000 during the last four years towards the cost of Mr Waterson's Kent family home. The MP also claimed for food, cleaning, utility bills and over Ł1,000 to have his garage redecorated at the taxpayers' expense.
    Mr Waterson has also claimed for the cost of glossy brochures, featuring the photo-opportunities for his visits to Eastbourne".
    7. On the second page, alongside what purports to be a Sussex Courier "Comment" column, appears an article under the bold headline "Expenses scandal: Eastbourne residents speak out". The words complained of in that article read:
    "Local residents have delivered their verdict on the MPs' expenses scandal.
    Eastbourne's Conservative MP Nigel Waterson has come under fire in recent months for his own scandalous expenses claims.
    Mr Waterson claimed almost Ł70,000 for the mortgage on his large family home in Kent, which is over 60 miles away from his constituents.
    He also claimed over Ł1000 to have his garage re-decorated.
    It's clear that Mr Waterson's expenses claims have upset many people in Eastbourne."
    8. There follow two paragraphs of which Mr Waterson does not complain. Immediately under the article is a section presented as "Latest letters to the paper: Eastbourne Herald" (the Eastbourne Herald is a genuine local newspaper) which provides additional context for the words complained of. The "letters" read:
    "The electorate is fed up with the entire House of Commons, our MP included … It is time for Eastbourne to vote for a new Member of Parliament".
    "Why does Mr Waterson need a large house in Beckenham?"
    "I for one would prefer my local MP to live in Eastbourne full-time and offer us taxpayers value for money. Eastbourne deserves more than second best and perhaps it's time we got it".
    "Why are you allowed to claim Ł70,000 of tax payers' money for the mortgage on your home in Beckenham, Kent … why are you allowed to claim tax payers' money to fund your 'Sea Vews' [sic] magazine'? … you do not seem to enjoy mixing with the ordinary voter."
    9. Mr Waterson attributes to the words complained of both a natural and ordinary meaning and an innuendo meaning. As Tugendhat J helpfully explains at [10] of his judgment, an innuendo meaning is the technical term for a meaning that would only be understood by a reader who knows facts not stated in the words complained of (in this case those facts are set out in paras 8(1) to (3) of the Particulars of Claim), and the reader interprets the words in the light of those facts. The relevant paragraphs of the Particulars of Claim, taking unopposed amendments into account, are these:
    "7. In their natural and ordinary meaning the words complained of … meant and were understood to mean that the Claimant's conduct in making the various expenses claims listed had given rise to legitimate outrage, and that the cause of such scandal was his grave abuse for his own financial advantage of the Parliamentary rules governing such claims.
    8. Further, or in the alternative, the words complained of … meant and were understood to mean that the Claimant was one of a number of notorious Members of Parliament, whose conduct had rightly become a subject of recent scandal, because their claims were unlawful and/or in breach of the Parliamentary rules, or such that they were liable to repay the amounts they had received.
    Particulars of Innuendo
    8(1) In or about July 2009 the Daily Telegraph published over a number of days details of expenses claims made by individual Members of Parliament between 2004 and 2009. The details published became an unprecedentedly notorious matter of national scandal, and it emerged that a very large number of Members of Parliament had made unlawful claims or claims for payment to which they were not entitled under the Parliamentary rules or claims which though within the rules were essentially improper.
    8(2) As the scandal increased, on 19 May 2009 the Prime Minister asked Sir Thomas Legg to investigate MPs' claims, and on 19 June 2009 Scotland Yard announced that a number of MPs would face criminal investigation. On 5 February 2010 the Director of Public Prosecutions announced that three MPs would face criminal charges of false accounting.
    8(3) Following the articles in the Daily Telegraph a large number of MPs of all parties repaid monies to which they had not been entitled, either voluntarily or as a result of rulings by Sir Thomas Legg.
    8(4) The above facts and matters were known to a very large but unquantifiable proportion of the readers of the words complained of."
    10. The appellants' Defence attributes the following meaning to the words complained of (the same meaning is given to the relevant words of the second publication, considered below):
    "10. The words complained of constituted honest comment on a matter of public interest, namely, the generosity of the Parliamentary expenses system as it was at the time of publication, the use that the Claimant had made of that system while he was MP for Eastbourne and the anger and resentment that those matters were apt to cause, and had caused, amongst voters and taxpayers.
    Particulars of Comment
    10.1 The comment expressed by the words complained of in their natural and ordinary meaning and in their proper context was that Claimant's conduct in exploiting the expenses system to help purchase and maintain a large house in Kent, sixty miles from his constituency, at considerable expense to the taxpayer, and in maintaining his family home there in preference to Eastbourne, was scandalous and such as to cause legitimate anger, resentment and criticism, with the result that it would be no more than the Claimant deserved if he lost his seat in the forthcoming General Election for those reasons (amongst others)."
    11. At the hearing before the judge it was made clear on behalf of the appellants that the meaning for which they contended contained no suggestion that Mr Waterson had broken any rules but was confined to the simple comment that he had used the expenses system for his own benefit in a way that was open to criticism, particularly at a time when he was seeking re-election.
    The second publication
    12. The second publication is headed "Eastbourne & Willingdon Express", below which appear in small print the words "Printed & delivered at not [sic] cost to the taxpayer. Paid for entirely by volunteer contributions." The article on the first page, under the headline "Stephen Lloyd is set to win", helps to provide context. It asserts that after years of let-down from a Labour Government and an unpopular Conservative MP, residents of Eastbourne and Willingdon are calling for change; people feel let down by the MP, whose large family home is over 60 miles away in Beckenham and has got many of the issues wrong over the years; and "the choice here is between local man Stephen Lloyd or more disappointment with a unpopular Conservative, whose family home is sixty miles away". The words specifically complained of appear on the second page and the fourth page and are as follows.
    13. On the second page, in a column headed "Courier Comment: It's time for change", and sandwiched between references to the dreadful recession and to taxes rising for ordinary people while bankers continue to collect obscene bonuses, are these words:
    "We've seen the scandal of MPs abusing their expenses."
    Alongside that column, under the headline "Eastbourne needs a new MP", is an article the second paragraph of which reads:
    "Local residents were angry to discover that Nigel Waterson claimed Ł70,000 in just four years for his large Kent family home, 60 miles from his constituents."
    Laid out next to the article is a column headed "Nigel Waterson's Roll of Shame" which includes the following entry in capital letters:
    "In just four years claimed Ł70,000 for his family home sixty miles away in Kent."
    On the fourth page, under the headline in capitals "It's a two horse race" and after assertions that Labour cannot win in Eastbourne and that this means the choice for local people is between a new Liberal Democrat MP or the unpopular Conservative, it is stated:
    "Voting Labour here in Eastbourne and Willingdon will just let our expenses scandal MP off the hook."
    14. As in the case of the first publication, Mr Waterson attributes to the words complained of both a natural and ordinary meaning and an innuendo meaning. The natural and ordinary meaning alleged in the amended Particulars of Claim is that:
    "10(1) the Claimant's conduct in making an expenses claim in relation to his home in Kent was a shameful abuse of the Parliamentary rules for his own advantage, and had given cause for legitimate public indignation and anger, and
    10(2) he would escape his just deserts for such scandalous conduct in relation to his expenses, unless the electorate voted for the First Defendant."
    The innuendo meaning alleged is in the same terms as that pleaded in respect of the first publication.
    15. The appellants' pleaded case in respect of the second publication repeats, so far as relevant, the matters pleaded by them in respect of the first publication.
    16. There is a further issue as to whether, even if the words complained of were comment, the appellants had an honest belief in what they published. That issue does not affect the determination of this appeal, which relates only to the judge's determination of the meaning of the words. It does, however, affect the question whether the appellants would be entitled to summary judgment if they were to win the appeal. ….. "

    History of the proceedings

  3. In October 2011, the claimant applied for summary judgment pursuant to CPR 24.2 on the ground that the defence of honest opinion was bound to fail because the words complained of were not reasonably capable of being understood as comment or opinion. In December 2011 the defendants cross-applied for a ruling on meaning, namely, that the publications were "comment" and the defence of honest comment was bound to succeed because it was "adequately supported by the facts and there are no grounds for holding that the defendants did not honestly hold the views expressed by the comment".
  4. Tugendhat J acceded to the claimant's application, as a result, the judge was not required to determine the defendants' cross application. By a majority, the Court of Appeal, Richards LJ dissenting, overturned the order of Tugendhat J and allowed the defendants' appeal. The court ruled that the meaning advanced by the defendants was comment and remitted the remainder of the defendants' application to be heard by the judge. A second appeal against Tugendhat J's order dismissing a late application to amend to plead a defence of justification was withdrawn by the defendants. For the purpose of the appeal, the defendants simplified their case on the meaning and factual basis for their defence of honest comment. In June 2013, the claimant issued a cross application for summary judgment on the basis that the simplified comment is not one which could have been made by an honest person however prejudiced he may be and however exaggerated or obstinate his views.
  5. The applications of the claimant and the defendant

  6. The matter now comes before this court for the hearing of the claimant's June 2013 application for summary judgment, the defendants' November 2011 application for summary judgment and, if necessary, the claimant's strike out application of June 2013 as originally pleaded in October 2011 in respect of certain paragraphs in the Defence.
  7. The applications raise the question of whether it is capable of being within the defence of honest opinion to describe, as a scandal, the fact that the claimant claimed Ł70,000 from taxpayer funds for a family home, 60 miles from his Eastbourne constituency, in circumstances where there is no suggestion of any breach of the rules or the law. The two levels are respectively the objective test and the subjective test for honest opinion.
  8. The law

  9. CPR 24.2
  10. 24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

    (a) it considers that –

    (i) that claimant has no real prospect of succeeding on the claim or issue; or

    (ii) that the defendant has no real prospect of successfully defending the claim or issue; and

    (b) there is no other compelling reason why the case or issue should be disposed of at a trial.

  11. In Three Rivers DC v Bank of England (3) [2003] 2 AC 1 Lord Hobhouse observed that the "criterion which the judge has to apply under Part 24 is not one of probability; it is absence of reality" [158]. At [160] the judge identified the application of the criteria in Part 24 as an "assessment to be made in advance of a full trial as to what the outcome of such a trial will be." There is recognition of the fact that the court must have regard, not only to the evidence presently available to the respondent to such an application but also to the reasonable possibility of evidence becoming available whether by further investigation, discovery, cross-examination or otherwise, which would strengthen the case of the respondent and give it some prospect of success. That position is distinguished from the situation in which the admissible material available discloses a reasonable prima facie case which the other party would have to answer at trial. At [162], Lord Hobhouse recognised that the relevant exercise was "not one of making findings of fact or comparable to a trial on admissible evidence. It was to make a predictive assessment".
  12. Two further considerations identified by the claimant are that the court does not conduct a mini-trial of the respondent's case and that the judge at trial will usually have a better grasp of the case as a whole because of the additional benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials.
  13. In Branson and Bower ...No.2) (2002) QB 737, Eady J provided the following summary as indicative of the course that the court should take on such an application:
  14. "15. The corollary is that if the judge is able to conclude that a properly directed and conscientious jury could only decide the issue in favour of the applicant, then it would be his duty to close off that issue so as to save time and money in accordance with the objectives of the Civil Procedure Rules. In order to perform this exercise, on the pleadings alone, it will be necessary for the judge to make all factual assumptions against the applicant. Where the challenge is to a plea of malice, for example, it follows that the court must approach the factual assertions, from which the claimant wishes to invite that inference, on the basis that they will be proved at the trial. At the pleading stage, it will only be possible to strike out a plea of malice if the facts pleaded are held to be incapable of supporting a plea of malice, that is to say, with reference to a fair comment case, if they are incapable of supporting an inference of dishonesty on the defendant's part: see e.g. Turner v MGM and Somerville v Hawkins (1851) 10 C.B. 583"
  15. The caution to be exercised by the court was identified in Doncaster Pharmaceuticals Group v The Bolton Pharmaceutical Co Limited (2007) FSR 63 per Mummery LJ [4–12] and in particular:
  16. "17. It is well settled by the authorities that the court should exercise caution in granting summary judgment in certain kinds of case. The classic instance is where there are conflicts of fact on relevant issues, which have to be resolved before a judgment can be given … A mini-trial on the facts conducted under CPR Pt 24 without having gone through normal pre-trial procedures must be avoided, as it runs a real risk of producing summary injustice.

    18. In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case … "

    Honest opinion

    The objective test

  17. The burden of proof is upon the defendants to show that the comment is one that could have been made by an honest person however prejudiced he might be, and however exaggerated or obstinate his views.
  18. Following the judgment of Lord Nicholls in Tse Wai Chun Paul v Chen (2011) EMLR 31 as qualified by that of Lord Phillips PSC in Spiller v Joseph [2011] 1AC 852 at [105] the objective conditions for a successful defence of honest opinion may be summarised as follows:
  19. i. The comment must be on a matter of public interest;
    ii. The comment must be recognisable as comment, as distinct from an imputation of fact;
    iii. The comment must be based on facts which are true or protected by privilege;
    iv. The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based;
    v. The comment must be one which could have been made by an honest person, however prejudiced he or she might be or however exaggerated or obstinate his or her view."
  20. As to the fifth of the "objective" conditions identified above Lord Keith of Kinkel in Telnikoff v Matusevitch [1992] 1AC 343 at [354] explained it thus:
  21. "… whether any man, however prejudiced and obstinate, could honestly hold the view expressed by the defendant in his letter."

    The subjective test

  22. Any comment which falls within the objective limits of the defence of honest opinion identified above will only lose its immunity on proof that the defendant did not genuinely hold the views he expressed. In Cheng above, Lord Nicholls identified the relevant test for the subjective element of the defence at [79]:
  23. "Honesty of belief is the touchstone. Actuation by spite, animosity, intent to injure, intent to arouse controversy or other motivation, whatever it may be, even if it is the dominant or sole motive, does not of itself defeat the defence. However, proof of such motivation may be evidence, sometimes compelling evidence, from which lack of genuine belief in the view expressed may be inferred. Proof of motivation may also be relevant on other issues in the action, such as damages …"
  24. At trial, the burden of proof would be upon the claimant to show that the opinion was not honestly held.
  25. Facts

  26. In March 2011, a defence was served which advanced a defence of honest comment in relation to the articles complained of. The alleged "comment expressed by the words" was set out in paragraph 10.1 of the Defence, paragraph 1 above.
  27. Insinuation was also pleaded in paragraphs 10.27 to 10.30 of the Defence, namely, that the claimant was improperly claiming the Beckenham house as his home for the purposes of the Additional Cost Allowance ("ACA"). In their skeleton argument, prepared for the purpose of the appeal, the defendants pleaded a narrower meaning of the publication, namely, that:
  28. "Mr Waterson had claimed nearly Ł70,000 from the taxpayer for a family home that is 60 miles from his Eastbourne constituency in (fact) that is scandal (comment)."
  29. In his judgment, McCombe LJ (with whom Laws LJ agreed) held that:
  30. i. … "the meaning of the words complained of here is quite simple, namely … Mr Waterson has claimed nearly Ł70,000 from the taxpayer for a family home that is 60 miles from Eastbourne (fact). That is scandal (comment)." [53];

    ii. The publication contained "no imputation of a breach of the law or of internal rules or any other improper conduct by Mr Waterson" [57]. "

  31. McCombe LJ identified the limits of the facts and their context at the time of the original publication as follows:
  32. "55. The reasonable reader would be well aware that there was significant criticism of the system of Parliamentary expenses (properly applied or not) and that some MPs (1) might have broken the law or (2) the House rules or (3) might merely have made substantial claims strictly within the rules of the criticised system (all in all "a scandal" in public parlance) within whatever category a particular MP might fall. However, all that was stated here was (a) what Mr Waterson had claimed and (b) the writers' view that that was "a scandal" or "scandalous". There was no more. …

    58. … In the precise factual circumstances identified in the publications it was being said that it was "a scandal" that Mr Waterson could and did claim very substantial sums to maintain a family home at the stated distance from his constituency at the taxpayer's expense. There was, in my view, no allegation of scandal beyond the stated facts. The fact that there was thought to be a wider "scandal" does not alter the position. …

    60. With respect, I do not agree that "the scandal of MPs abusing their expenses" in a column expressly headed "comment" in the second publication, when read in context of the rest of the page, would be understood as references to facts of the kind set out in the respondent's particulars of innuendo. It is clear, at the time, some did think that some claims to expenses, even within the law and the rules, were "scandalous". It does not seem to me that they would have strayed beyond comment if they identified the precise claims made and said that, in their view, they were scandalous. Surely, it was not necessary to go so far as to say expressly, "X MP claimed ŁY in expenses. Even though the claims were within the law and the rules, I still think the claims were scandalous." …"

    The claimant's case

  33. As to the five "objective" conditions identified, it is undisputed that MPs' expenses are a matter of public interest, (condition 1). Conditions (ii) and (iv) have been determined by the Court of Appeal. At issue, contends the claimant, are conditions (iii) and (v). As to (iii), it is the claimant's case that the facts which are required to be true to found the comment are the complete relevant facts, regardless of whether they are stated. Account needs to be taken of relevant exculpatory facts as well as the stated facts: Branson v Bower (No.2) above, per Eady J:
  34. "36. … The objective test for fair comment cannot be fulfilled (at any point) if the facts pleaded by the defendant might take on a different significance when set against other facts not referred to in the words complained of – at least if the defendant either knew about or could have discovered them. This raises a new clutch of problems for analysis …

    39. If the claimant, by way of rebuttal, proves truly exculpatory circumstances which negate suspicious circumstances raised by the defendant, that will undermine the accuracy of the factual substratum for the comment. …

    43. It is possible to imagine a case, as I have suggested above, in which one might express the defamatory opinions in question on the undisputed facts but, if they were combined with other facts alleged by the complainant, those views would become simply untenable. …"
  35. A defence of honest opinion will fail if the defendant omits from the statement of facts on which the comment purports to be based "some important fact which (had it been mentioned) would falsify or alter the complexion of the facts which are stated: Gatley 11th Edition (2008) 12.14, 12.17.
  36. The claimant contends that the defendants omitted any reference to the following true facts and matters:
  37. i. The claimant's expenses claims were not the subject of criticism in any organ of the national media during May/June 2009 or subsequently;
    ii. The claimant's expenses claims were investigated by Sir Thomas Legg who reviewed all MPs' claims and, irrespective of the fact that a claim had been approved and appeared to have been within the rules, applied a test of fundamental propriety to the claims data. Propriety was described as the proper handling of public money, in the sense used by the Public Accounts Committee and the National Audit Office. Where the propriety of any claim appeared questionable, Sir Thomas Legg's office wrote to the MP requesting repayment of the sum identified. On 1 February 2010, Sir Thomas Legg published the findings of his inquiry. The payment received a letter from his office indicating that he was not being asked to pay any sum back, in the published review of historical ACA payments, published contemporaneously in February 2010, it was stated in relation to the claimant's expenses claim: "Mr Waterson has no issues."
    iii. The political parties conducted their own reviews of their members' expenses claims. The parties encouraged certain MPs to accede to requests for repayment. The claimant was not asked to pay any sum by the Conservative Party, nor did he receive any adverse comment or advice on his expenses claims from any person within the Party.
    iv. All of these facts were extensively referred to in local Eastbourne and Susses media including the Eastbourne Herald.
  38. It is the claimant's case that if the complete facts do not embrace the exculpatory matters then they are not the whole relevant truth. Further, if the defendants do embrace the exculpatory matters, they fail upon the fifth objective condition as no one could, on those facts, honestly express the opinion that the claimant's conduct was scandalous.
  39. The claimant relies upon the fact that the defendants' pleaded case, prior to the Court of Appeal, contained two elements which would have satisfied the fifth objective condition for a comment that the claimant's expenses were a scandal, those which it is said were discarded from 10.1 of the Defence, namely that the claimant was exploiting the expenses system and that he was, in some way, guilty of abuse in maintaining his family home in Kent in preference to Eastbourne. Thus it is said, the defendant has chosen to abandon any possible factual basis for the imputation that the expenses claimed were improper or "an offence against morality of law" such as were capable of being seen by an honest person as amounting to scandal.
  40. The claimant submits that the defendants' deliberate change of case has produced the outcome that the statement of opinion is not relevant to the underlying facts, it is no more than invective. Even if criticism of the Parliamentary expenses system were to be within the limits of honest opinion, it does not follow that criticism of one who uses, without abusing, the system is within the limits of honest opinion for that is to criticise the system and not the person honestly using it. No honest person would be capable of holding the opinion that the making of expenses claims which were proper and legitimate is "scandalous" or amounts to "a scandal". The fact upon which the comment is said to be based is the mere making of expenses claims, no honest person could regard that as discreditable, unless every claim made under the ACA for staying away from an MPs' main home, is to be regarded as discreditable and scandalous. Reliance is placed upon the fact that under the pre 2010 expenses system, virtually all MPs, with constituencies outside London, claimed for a property in the constituency or in London depending on the location of their main home. This included Liberal Democrat MPs e.g. Norman Baker, the MP for Lewes. Further, the amounts claimed annually by the claimant, whether under the ACA or wider expenses entitlements, were average, unexceptional and typical for the Parliament in question (2005-2010).
  41. The defendants' case

  42. The defendants rely upon the meaning of the words as found by McCombe and Laws LJJ and the limit of such meaning, namely, that the claimant had claimed nearly Ł70,000 from the taxpayer for a family home 60 miles from Eastbourne, that is a scandal. As to the remaining question which is whether an honest person could have made the comment that the defendants made on those facts, it is said that the answer is obvious and implicit in the judgment of the Court of Appeal, in particular, McCombe LJ at [60] paragraph 14 above and [61]:
  43. "61. In the Slim case, Diplock LJ (as he then was) took the view that the case then before the court could be decided in accordance with common sense and first impression … My first impression, when reading the papers for this case, was that the matters complained of were comment, and I have remained of that view throughout. While perhaps not going so far as to identify "an evil day", I think that it would be unfortunate (paraphrasing Diplock LJ in Slim's case – loc cit),

    ". . . for free speech in this country if this kind of controversy on a matter of public though local interest were discouraged by the fear that every word written to be read in haste should be subjected in a court of law to minute linguistic analysis of the kind to which these [papers] have been subjected . . . ."

    and Laws LJ:

    "66. We are enjoined by Jeynes v News Magazines Ltd [2008] EWCA Civ 140 … to avoid "over elaborate analysis". I think this dictum has a particular resonance in the context of political speech. While of course … politicians are entitled to be protected by the law of defamation, "the limits of acceptable criticism are wider in relation to politicians acting in their public capacity than in relation to private individuals – Jerusalem v Austria (2003) 37 EHRR 25, para 38": Joseph v Spiller [2011] 1 AC 852, [2010] UKSC 53, per Lord Phillips of Worth Matravers at para 78 …

    67. At para 79 in Joseph v Spiller Lord Phillips notes that "these expressions of principle are in general consonant with the English law of defamation". They exemplify, it seems to me, the common law's increasing focus in this area on the balance to be struck between public interest and individual right: between free speech and private claims, rather than on reputation as akin to a right of property … A political context – and especially at election time – surely informs this balance.""
  44. The defendants are unequivocal; the answer implicit in the Court of Appeal's judgment is "yes". As a matter of law an honest person could have made the comment on those particular facts.
  45. The limited statement identifies three facts: a family home; its geographical location; the cost to the taxpayer. The facts, which are undisputed, are narrow. No allegation of breach of the law or the rules or any improper conduct on the part of the claimant is made. That is the finding of the Court of Appeal. Any further material, by way of exculpation or otherwise, now sought to be relied upon by the claimant, is irrelevant.
  46. The undisputed statement of fact is not defamatory. As to the comment, as a matter of law, it does not have to be correct nor reasonable. It is the defence case that some people would naturally regard the fact that a person maintains a family home 60 miles from his constituency at the expense of the taxpayer as being scandalous conduct. It is not necessary to expressly state that such a claim is within the law unless it had previously been said that it was not within the law.
  47. As to the "exculpation", relied upon by the claimant as a result of the finding by Sir Thomas Legg, the defendants rely upon the limits of terms of reference of the investigation, identified at paragraph 41 of the published report:
  48. "Acceptance of ACA's Main Structure

    My terms of reference also carry another implication. Limiting my remit to the rules and standards enforced at the time means that it is not open to me to question the main structure of the ACA, however questionable some aspects of it may appear in hindsight. Major examples were the power given to MPs to choose which homes to designate as their main and which is their second home, and then to "flip", i.e. change the designation, to suit their own convenience; allowing mortgages of very large houses; or financing MPs to rent or buy houses when they already earned quite sufficient accommodation in their private capacity …"
  49. It is said that the remit of Sir Thomas' investigation does not touch on the facts upon which the defendant makes comment. What benefit would it avail anyone knowing what Sir Thomas Legg had said as it has no bearing on the specific facts as found by the Court of Appeal.
  50. As to the various additional facts and matters relied upon by the claimant as being relevant to a full understanding of the facts upon which comment was made, Mr Rampton QC in a succinct and robust response says quite simply, "so what". No false statement of fact is made in either article, no breach of any rule or matter of law is alleged. The fact that other MPs may act in a similar manner to the claimant does not detract from the dim view taken by, amongst others, the Liberal Democrats of an individual who maintains a family home paid for by the taxpayer some 60 miles from his other home in his constituency. As to the fact that the claimant's expenses were typical and unexceptional for an MP at the time, how does that help the facts as stated which related to the sitting MP in the area of the publication.
  51. As to the caution invoked by the court in respect of an application for summary judgment pursuant to section CPR 24, the point is shortly made that little, by way of evidence, is required. What is pleaded is narrow, it is understood and requires nothing by way of elucidation.
  52. The subjective test - the defendants' knowledge and belief

  53. The defendants have submitted witness statements in close to identical terms. Both deny that, when causing or allowing the words to be published, they were actuated by malice in that the statements were comments which neither honestly believed in. Each confirms that at the time of publication, he or she knew or knew in general terms the following facts:
  54. "(1) The relevant rules governing expense claims – a copy of which is exhibited to the Claimant's Reply (Defence paragraph 10.17 and Reply paragraph 7.1);

    (2) The purchase by the Claimant and his wife, Dr Barbara Judge, of the property in Eastbourne known as Thatched Cottage in February 2000 ("the Eastbourne Property") (Defence paragraph 10.22 and Reply paragraph 7.2.1);
    (3) The purchase by the Claimant and his wife of a large detached four bedroom property in Beckenham ("the Beckenham Property") in August 2003 (Defence paragraph 10.23 and Reply paragraph 7.2.2);
    (4) That the Beckenham Property is some 57 miles from the constituency (Reply paragraph 7.2.3);
    (5) The Claimant's wife and two children spend the working week at the Beckenham Property (Reply paragraphs 7.2.4 (B) and (G);
    (6) That the Claimant's wife worked in London (Defence paragraph 10.25.1 and Reply 7.2.4 (A);
    (7) The Claimant's two children attended school in Bromley (which is near to Beckenham) (Defence paragraph 10.25.2 and Reply paragraph 7.2.4 (B);

    (8) The Claimant and his wife were registered on the 2009 electoral role in Beckenham, as well as Eastbourne (Defence paragraph 10.25.3 and Reply 7.2.4 (C);
    (9) The Claimant normally spent Sunday, Monday and Tuesday/Wednesday nights at the Beckenham Property (Reply paragraph 7.2.4 (E));
    (10) That, for the purposes of the Additional Costs Allowance ("ACA"), the Claimant designated the Eastbourne Property as his "main home" and the Beckenham Property as his "second home";
    (11) The Claimant's expenses under ACA for the period 1 April 2004 to 31 March 2008 totalled Ł93,428 (or Ł23,357 annually);
    (12) This included (Defence 10.28.6 and Reply 7.3 and 7.3.2):

    (a) Ł65,532 in respect of mortgage interest for the Beckenham Property (as the Claimant's designated second home);
    (b) Ł7,909 in respect of Council Tax for the Beckenham property;
    (c) Ł2,200 utility bills for the Beckenham property;
    (d) Ł4,200 food bills for the Beckenham property;
    (e) Ł3,300 cleaning bills for the Beckenham property; and
    (f) Ł4,475 service and maintenance bills for the Beckenham property (of which Ł1,000 are attributable to the exterior of the Beckenham Property and the doors of the garage to that property."
  55. In the final paragraph of each witness statement, the defendant confirms that he or she honestly believed, at the time of publication, and still believes today, that the opinions stated in those publications were entirely correct. It was a scandal that Mr Waterson had a second family home in Kent upon which he claimed very significant amounts from the taxpayer to cover mortgage interest repayments and other expenses. In all material respects, the Court of Appeal found, that these were the terms set out in the publications and that the facts were non-defamatory. It is the defence case that the issue of whether the claimant's house was in Kent or London and whether or not it is his main home is immaterial.
  56. The claimant's case

  57. The claimant's case, in respect of the knowledge and belief of the defendants is, in my view, inextricably linked to his arguments as to "objective" condition (iii) the true nature of the statement of fact.
  58. As to the defendants' application for summary judgment, the claimant makes the following points:
  59. i. The claimant has pleaded a lack of honest belief in the Reply which the court cannot resolve on a summary application. An important aspect of the claimant's case on lack of honest belief is the defendants' knowledge of fact, albeit not mentioned, which exculpate the claimant and irresistibly lead to the inference when taken together with the limited fact relied on that the defendants cannot have honestly held the opinion expressed;
    ii. The deliberate suppression of known exculpatory or contradictory facts leads to the further conclusion that the facts relied on have not been established as objectively true or reliable, and accordingly the third objective condition for the defendant is not satisfied. Put shortly, it is the claimant's case that when the limited facts, now relied upon by the defendants are set against the full set of relevant and exculpatory true facts, which were known to the defendants prior to publication, no honest person could have held or expressed the view that the claimant's expenses claims were scandal.
  60. The claimant relies on the following knowledge of the defendants:
  61. (a) The matters identified in paragraph 34 above;
    (b) The defendants knew that the claimant's main home was in the constituency, it was a matter of public record and the Liberal Democrats had previously been censured for alleging that the claimant lived elsewhere. The reference to a "family home" would be understood to be the main family home. It is said that there was an obvious political advantage to be had in contrasting the first defendant's home in Eastbourne with the claimant's home in Beckenham which made him appear a "carpetbagger".
    (c) The defendants knew that the claimant's Beckenham home was sufficiently close to Central London to enable him to attend Parliament, particularly late at night and his wife to work at a hospital in Central London. If the claimant had not had his home in Beckenham and therefore had to commute to home late to Eastbourne or stay in a hotel in London, it is said that that would have been a "recipe for family breakdown" as he would not have been able to perform his Parliamentary duties and see his young family and working wife;
    (d) The defendants knew it was impossible with late sittings in Parliament for an MP to return home every evening and, accordingly, it was reasonable for MPs to claim the expenses of the accommodation necessary to perform their Parliamentary duties. Reliance is placed upon the fact that the first defendant incurred over Ł10,000 worth of expenses in his first year as an MP having stayed at London hotels.
  62. The claimant points to the fact that neither defendant has taken the opportunity of providing a witness statement to explain why they failed to mention any of these matters. It is contended that it will be evidence of malice if it transpires that either defendants suppressed the exculpatory evidence deliberately.
  63. It is the claimant's case that had the entirety of the relevant facts been stated, it would have been clear that the necessary substratum for the statement had not been made out because all the relevant facts of the whole were not truly stated. Whether judged subjectively or objectively, there was no basis for an honest belief in the suggestion that the claimant's expenses claims of Ł70,000 were a "scandal" or "scandalous". The defendants could not honestly disregard the findings of the Parliamentary investigation and it was deliberately misleading to talk about the large family home in Kent with the emphasis on it being over 60 miles from the claimant's constituents in another county.
  64. There is more than sufficient material upon which to base the contention that the defendants knew so many exculpatory facts concerning the claimant as to make it impossible to credit that they honestly held the opinion expressed, as opposed to smearing the claimant for political advantage in the forthcoming election. Applying the Three Rivers test it cannot be said that that the claimant has no real prospect of success. The claimant has assembled sufficient admissible material bearing on the defendants' state of mind as to disclose a reasonable prima facie case which they will have to answer at trial.
  65. Conclusion

  66. The findings of the majority in the Court of Appeal are unequivocal both as to meaning and the limit of the statement in the publication. Three facts are identified: (a) a claim by the claimant of nearly Ł70,000 from the taxpayer (b) the claim is in respect of a family home (c) the home is 60 miles from the claimant's constituency. The facts are true, they are not defamatory. No breach of Parliamentary rules or illegality is alleged. The comment is that the facts amount to "a scandal". It was made in the context of what McCombe LJ stated a reasonable reader would have been aware of at the time of publication which he identified as "significant criticism" of the system of Parliamentary expenses (properly applied or not) and that some MPs (1) might have broken the law or (2) the House rules or (3) might merely have made substantial claims strictly within the rules of the criticised system (all in all "a scandal" in public parlance) within whatever category a particular MP might fall. [55]
  67. Put shortly, in the opinion of McCombe LJ, the comment of a "scandal" included those who made substantial claims within the rules. The judge made the point, a second time, at [60] when he stated: "It is clear that, at the time, some did think that some claims to expenses, even within the law and the rules, were "scandalous".
  68. I agree with McCombe LJ's assessment of what the reasonable reader would have been aware of at the time of publication. I do not accept the claimant's point that this was confined to a criticism of the system. In my view, it included those who chose to make a claim within this system. Ł70,000, by the standards of most of us, represented a substantial sum. It was to be paid by the taxpayer to maintain a home used by the claimant's family at a distance of 60 miles from his constituency. It follows, and I so find, that the facts provided a true basis for a comment that the same was a scandal.
  69. No further allegation of a breach of the rules or law, or even impropriety, was necessary nor was it made. The further material sought to be relied upon by the claimant is irrelevant to these limited and undisputed facts. The "exculpatory" finding by Sir Thomas Legg takes the matter no further because it does not address the three matters which provide the factual basis for the comment. No breach of the law, rules, or impropriety was alleged therefore no material is necessary to rebut or contradict the same. In my view, the additional and "exculpatory" material, does not undermine the factual substratum of the statement which was the source of the comment. The facts contained in the additional material would not falsify or alter the complexion of the facts. It is the narrowness of the facts which defeats this aspect of the claimant's case. Accordingly, I find that condition (iii) of the objective conditions identified in Cheng, is made out.
  70. Condition (v)

  71. I have real difficulty understanding how it can be said by the claimant that no honest person could have held the view that the facts did not amount to a scandal. I agree with the submission of Mr Rampton QC, that the answer to the question, whether an honest person could have made the comment that the defendants made on those facts, is implicit in the judgments of McCombe and Laws LJJ, and it is "yes". It also represents my own view. No allegation of breach of the rules, illegality or impropriety was required. The substantial sum of money identified, all of which was to be paid by the taxpayer for the maintenance of a family home 60 miles from the claimant's constituency, without more, permitted an honest person to conclude that the same represented a scandal.
  72. The defendants' belief

  73. The burden would be upon the claimant at trial to disprove the defendants' assertion as to the honesty of their opinion. I accept that the facts as originally pleaded in the Defence were wider and an amendment of "justification" was proposed. However, that does not in my view, undermine the core premise contained in the facts and that the same could amount to a scandal. The defendants have accepted knowledge of the many issues of additional fact which are relied upon by the claimant but maintain their stance as to the comment that it is a "scandal". In this, it would appear, they are not alone.
  74. Given the narrowness of the facts, I accept the submission of Mr Rampton QC that little, by way of further evidence, would be necessary at trial. There are no disputed issues of fact. Notwithstanding the caution urged in the authorities, I believe I am in a position to properly assess the claimant's chances of successfully disproving the defendants' assertion as to their honest belief. On this point, I find that the claimant has no realistic prospect of success.
  75. Accordingly, I grant the defendants' application for summary judgment upon the basis that their defence of honest comment, founded on the statement of facts identified by the Court of Appeal, satisfies the objective conditions of honest opinion and there is no realistic prospect of the defence failing for a lack of honest belief. I dismiss the claimant's application for summary judgment. By reason of these findings, it is unnecessary to consider any further applications.


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