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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB) (29 March 2011) URL: https://www.bailii.org/ew/cases/EWHC/QB/2011/763.html Cite as: [2011] EWHC 763 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
FRANK COOK |
Claimant |
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- and - |
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TELEGRAPH MEDIA GROUP LIMITED |
Defendant |
____________________
Mr David Price (of David Price Solicitors and Advocates) for the Defendant
Hearing dates: 25 February 2011
____________________
Crown Copyright ©
Mr Justice Tugendhat :
THE THREE ARTICLES COMPLAINED OF
"MP claimed £5 for church collection
An M.P. used his expenses to claim for a £5 donation he made during a church service to commemorate the Battle of Britain.
Frank Cook a Labour backbencher sought reimbursement on his office expenses after the memorial service in his constituency town of Stockton On Tees. It was rejected by the parliamentary fees Office.
The controversial claim was one of a series made by M.Ps that can be disclosed today, including reimbursement for carpets bought in India, sweets bought by a former party leader and office expenses used for household items ...
Today the Sunday Telegraph discloses the expense claims of
members of parliament who represent low "value-for-money" when their voting records, participation in parliamentary debates and number of questions they ask are compared to their total level of expenses.
The most extraordinary was made by Mr Cook who tried to claim for £5 he gave at a Battle of Britain memorial service. A handwritten note attached to the claim by way of a receipt stated "Battle of Britain church service, Sunday 17.09.06. £5 contribution to offertory on behalf of Frank Cook M.P."
The fees office wrote on his claim "Not Allowed" and refused to pay out on the claim ....
It is particularly embarrassing because Mr Cook is an official supporter of the campaign to commemorate Air Chief Marshall Sir Keith Park who commanded the RAF's 11 Group Fighter Command during the Battle of Britain".
"Frank Cook, the Labour M.P., in flight gear. Despite
campaigning for the RAF he tried to claim on expenses £5
that he donated at a church service commemorating the
Battle of Britain".
"I'm sorry, church claim was unfair
Mr Cook last night said he could not remember making the claim but apologised for doing so. His claim for the donation is particularly embarrassing because he is an official supporter of the campaign to commemorate Air Chief Marshall Sir Keith Park who commanded 11 Group Fighter Command RAF at the Battle of Britain.
He is also a former member of the Commons Defence select committee and his son Andrew is a serving soldier with the Royal Electrical and Mechanical Engineers.
Mr Cook who was deselected as a candidate for the next general election by his local constituency party in 2008 after more than 24 years representing Stockton North is among the 20 MPs who represent poor value for money to taxpayers.
Despite claiming total expenses last year of £153,902 which included travel, home office and staffing costs Mr Cook turned up to just 44% of votes in Parliament, spoke 11 times and submitted four questions to ministers ...
Last year Mr Cook a former gravedigger, Butlins Redcoat and special needs teacher received £23,083 of taxpayers' money to run his second home in Camberwell, south London ... "
"Worthy causes: Frank Cook at Westminster before a charity run. The former gravedigger said claiming for a £5 church collection was 'unjustified'".
"COMMENT AND ANALYSIS
Now it is the people's turn to be heard
When, as we report today, one Labour MP thinks it is appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity, the most obvious conclusion that Labour is made up of people who will destroy the ethic of selfless public service.
If the expenses scandal had revealed flaws of character and
judgement in individual MPs, it has not revealed a fundamental flaw with Britain's basic system of representative democracy. None of those who made disgraceful claims were forced to do so by "the system", for there were plenty of MPs who only made claims that are beyond reproach. The difference between those who put their snouts in the trough, and those who did not, is that the individual who make up the first group decided to claim what they thought they could get away with, rather than what they could justify to their constituents".
"(i) the Claimant represented low "value-for-money" as a parliamentarian;
(ii) the Claimant's claim for £5 was an extraordinary abuse of M.Ps' expenses and was particularly embarrassing and hypocritical having regard to his official support of the campaign to commemorate a Battle of Britain hero."
"(i) the Claimant thought it appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity;
(ii) the Claimant set out to exploit the expenses system for his own gain in disregard of his constituents' views."
"10.1 The Claimant claimed on expenses a £5 offertory donation for an RAF charity made during a memorial service to commemorate the Battle of Britain.
10.2 The claim was an extraordinary abuse of the expense system.
10.3 It was particularly embarrassing to the Claimant.
10.4 It was inconsistent with the nature of a church offertory and the Claimant's support of the armed forces.
10.5 It was justifiable to describe the Claimant as a low value for money MP."
"17.2 The donation claim is a prime example of an MP claiming what he thought he could get away with, rather than what he could justify to his constituents.
17.3 the [Telegraph] will, if necessary, allege that the Claimant set out to exploit the expenses system for his own gain in disregard of his constituents' views".
"16.1 The Claimant thought it appropriate to make the donation.
16.2 Such conduct is destructive of the ethic of selfless public service.
16.3 The donation claim is a prime example of an MP claiming what he thought he could get away with, rather than what he could justify to his constituents."
MATTERS NOT IN DISPUTE
"We are considering publishing an article in tomorrow's Sunday Telegraph (May 31, 2009) which will contain details of your expenses claim.
However, as a matter of legitimate public interest and concern, we intend to publish the following details about your expense. We would invite you to respond to the following points.
1. We note that in September 2006 you claimed £5 as reimbursement for a donation to the offertory made during a Battle of Britain Day church service.
Why did you feel it justified to claim back from the public purse the cost of a personal donation to such a cause?
3. An analysis by the Sunday Telegraph has shown that you are one of the MPs that offers the least value for money.
Given that last year you only voted in 44 per cent of votes, asked 4 questions and spoke in 11 debates and yet claimed for £153,902 in expenses, do you think your work as a Member of Parliament constitutes value for- money? "
"I told Mr Sawer on the Saturday evening prior to publication that 'if this had happened it was unjustified and unjustifiable'."
" the Sunday Telegraph discloses the expense claims of Members of Parliament who represent low 'value for money' when their voting records, participation in parliamentary debates and number of questions they ask are compared to their total level of expenses."
"Mr Cook last night said he could not remember making the claim but apologised for doing so."
" Frank Cook said claiming for a £5 church collection was 'unjustified'".
"My reaction at the moment given the story in the Sunday Telegraph this morning is one of acute embarrassment acute annoyance and I just couldn't until the middle of the day figure out how it could have happened and it's only now I am beginning to get some idea of how it could have occurred. Let me make it plain that the editorial of the Sunday Telegraph makes some suggestion that I thought it was justified to make this claim, I think nothing of the kind. I have already gone on record by saying that it is totally unjustified and unjustifiable. It was wrong that should have happened and it was some people would call it unfair. It [is] a bit more than that. I think how it came about I deputise a member of my team to stand in for me at this event because I was elsewhere and when I came back after it was in the middle of August as I remember as far as I remember and when I got back there was what we call a work note one of the team had done registering the fact that he had made a £5 donation in my absence, on my behalf which is entirely proper that he should do that and I paid him that immediately and my mistake was I should have taken that paper that work note and crumpled it up and thrown it in the bin because of pressure of work I can't think of any other reason I didn't. Somehow or other it got scooped up in numerous other receipts and the like and got included inadvertently in the claim that I submitted for that month's activity. That's the best explanation I can offer at the moment until I look further into it, I regret that it has been a serious error and I am sorry for it."
"Whilst I fully accept that the issue of payments to Members of Parliament is a matter of major media interest and real public concern, I would ask that coverage of the issue is fair and balanced. In my own case, when questioned by the Sunday Telegraph on a claim relating to a church service donation, I made it very clear that I regarded the claim as unacceptable and one that should never have been submitted.
Yet in your Leader column (Sunday Telegraph May 31st) you alleged that I regarded the claim as 'appropriate'. That is exactly the opposite of what I said to your newspaper and indeed every other media and public query I have received on this matter."
ISSUES BETWEEN THE PARTIES
PRINCIPLES APPLICABLE TO SUMMARY JUDGMENT
"The court may give summary judgment against a Claimant on the whole of a claim if (a) it considers that (1) that Claimant has no real prospect of succeeding on the claim ."
"It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice. If a Claimant has a case which is bound to fail, then it is in the Claimant's interests to know as soon as possible that that is the position."
MEANING
THE DEFENCE OF HONEST COMMENT
" [i] First, the comment must be on a matter of public interest. .
[ii] Second, the comment must be recognisable as comment, as distinct from an imputation of fact. If the imputation is one of fact, a ground of defence must be sought elsewhere, for example, justification or privilege. Much learning has grown up around the distinction between fact and comment. For present purposes it is sufficient to note that a statement may be one or the other, depending on the context. Ferguson J gave a simple example in the New South Wales case of Myerson v. Smith's Weekly (1923) 24 SR (NSW) 20, 26:
'To say that a man's conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain specific things and that his conduct was dishonourable is a statement of fact coupled with a comment.'
[iii] Third, the comment must be based on facts which are true or protected by privilege: see, for instance, London Artists Ltd v Littler [1969] 2 QB 375, 395. If the facts on which the comment purports to be founded are not proved to be true or published on a privilege occasion, the defence of fair comment is not available.
[iv] Next the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based.
[v] Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174.
These are the outer limits of the defence. The burden of establishing that a comment falls within these limits, and hence within the scope of the defence, lies upon the Defendant who wishes to rely upon the defence..
[vi] A Defendant is not entitled to rely on the defence of fair comment if the comment was made maliciously".
"the scope of malice has been significantly narrowed. The fact that the Defendant may have been motivated by spite or ill-will is no longer material. The only issue is whether he believed that his comment was justified."
"36 Mr Price argues that 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 ofat least if the Defendant either knew about or could have discovered them. This raises a new clutch of problems for analysis.
37 The simplest example would be where a man has been charged with child abuse and a newspaper article calls for him to be suspended from his teaching post for so long as this question mark remains over him. On the face of it, that would be a legitimate instance of fair comment if those facts stood alone. Suppose, however, that there are facts, not mentioned by the Defendant, which throw a different light on matters. For example, the proceedings had been dropped by the Crown Prosecution Service, or he has been acquitted at trial, because it transpired that it was a case of mistaken identity, or because he had an alibi, or because DNA testing excluded him as the culprit. In those circumstances, the underlying factual substratum of the comment (viz there are reasonable grounds to suspect that he may be guilty of child abuse) would have collapsed.
38 The existence of such extraneous circumstances would be relevant in dealing with the question of whether the facts were truly stated (question [para 43 [iii] above]). They would also be relevant if it turned out that the Defendant had suppressed the exculpatory evidence deliberately. That would be evidence of maliceif the case ever got that far (question [para 43 [vi] above]). Where I would part company with Mr Price is over the question of whether such extraneous facts could also be relevant for answering question [para 43 [v] above]. The question would simply be "Could someone honestly express the opinion that the Claimant should be suspended on the footing that he was currently facing charges of child abuse?" The answer to that would almost certainly be in the affirmative. It does not need to be confused with the other two questions I have identified. This is because the objective test for fair comment is concerned with whether the Defendant is able to show that a hypothetical person could honestly express the relevant comment on the facts pleaded and/or proved by the Defendant. I do not understand Mr Price to challenge that as a proposition of law.
39 If the Claimant, by way of rebuttal, proves truly exculpatory circumstances which negate the suspicious circumstances raised by the Defendant, that will undermine the accuracy of the factual substratum for the comment. The Defendant would therefore fail at question 1 [para [iii] above]."
"the defence is wide enough to embrace not only expressions of opinion in the more common sense but also, in some cases, inferences of fact where it is clear they are not objectively verifiable: see eg Gatley on Libel and Slander, 11th ed (2008), at para 12.7. For example, where a conclusion is expressed by the commentator in circumstances where it is obvious to the reader that he cannot know the answer (eg in relation to someone's secret motives), it would be taken as comment rather than fact."
"Careful consideration needs to be given to [the] proposition that the defence of fair comment should extend to inferences of fact. Jurisprudence both in this jurisdiction and at Strasbourg see Nilsen and Johnsen v Norway (1999) 30 EHRR 878, para 50 - has held that allegations of motive, which is inherently incapable of verification, can constitute comment. Some decisions have gone further and treated allegations of verifiable fact as comment, see for instance the Privy Council in Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109. It is questionable whether this is satisfactory. Prejudiced commentators can draw honest inferences of fact, such as that a man charged with fraud is guilty of fraud. Should the defence of fair comment apply to such inferences? Allegations of fact can be far more damaging, even if plainly based on inference, than comments on true facts. Eady J has twice held that the defence of fair comment cannot apply where the defamatory sting is a matter of verifiable fact Hamilton v Clifford [2004] EWHC 1542 (QB) and British Chiropractic Association v Singh [2009] EWHC 1101 (subsequently reversed by the Court of Appeal)."
HONEST COMMENT APPLIED TO THIS CASE
i) Mr Cook told Mr Sawer in their conversation on Saturday 30 May that he was a members of the Speaker's Panel, and as such he was not allowed to vote on Bills which he had chaired at any stage, and by omitting to report this the Telegraph gave its readers a false impression as to Mr Cook's voting record;
ii) Mr Cook told Mr Sawer in their conversation on Saturday 30 May that he did not consider it appropriate to claim the £5.
"(i) the Claimant represented low "value-for-money" as a parliamentarian;
(ii) the Claimant's claim for £5 was particularly embarrassing having regard to his official support of the campaign to commemorate a Battle of Britain hero."
"(i) the Claimant thought it appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity;
(ii) the Claimant set out to exploit the expenses system for his own gain in disregard of his constituents' views.
(iii) the Claimant's claim for £5 was an extraordinary abuse of M.Ps' expenses and was hypocritical having regard to his official support of the campaign to commemorate a Battle of Britain hero.."
THE DEFENCE OF JUSTIFICATION
THE REYNOLDS DEFENCE
"Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant factors will vary from case to case".
"Any disputes of primary fact will be a matter for the jury, if there is one. The decision on whether, having regard to the admitted or proved facts, the publication was subject to qualified privilege is a matter for the judge. This is the established practice and seems sound. A balancing operation is better carried out by a judge in a reasoned judgment than by a jury".
"23. On 27 April 2009, just over one month before the date fixed for the trial, the Claimants issued an application for summary judgment, alternatively for an order striking out the defences, on the basis that there were no issues to go to the jury. Thus began the tortuous interlocutory proceedings that have culminated in this appeal. With hindsight it is apparent, and with a little foresight it should have been apparent at the time, that this relatively modest dispute raised issues of complexity, some of which might not prove decisive, and that the best course would be to proceed with the substantive hearing before a judge alone. .
116. Finally, and fundamentally, has not the time come to recognise that defamation is no longer a field in which trial by jury is desirable? The issues are often complex and jury trial simply invites expensive interlocutory battles, such as the one before this court, which attempt to pre-empt issues from going before the jury."
MODE OF TRIAL
"(1) Where on the application of any party to an action to be tried in the Queen's Bench Division, the court is satisfied that there is in issue-
(a) a charge of fraud against that party; or
(b) a claim in respect of libel, slander, malicious prosecution or false imprisonment; or
(c) any question or issue of a kind prescribed for the purposes of this para,
the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.
(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed.
(3) An action to be tried in the Queen's Bench Division which does not by virtue of subsection (1) fall to be tried with a jury shall be tried without a jury unless the court in its discretion orders it to be tried with a jury.
(4) Nothing in subsections (1) to (3) shall affect the power of the court to order, in accordance with rules of court, that different questions of fact arising in any action be tried by different modes of trial; and where any such order is made, subsection (1) shall have effect only as respects questions relating to any such charge, claim, question or issue as is mentioned in that subsection."
" an action which does not come within section 69(1) has to be tried without a jury, unless the court in its discretion orders it to be tried with a jury. The discretion is now very rarely exercised, reflecting contemporary practice. Contemporary practice has an eye, among other things, to proportionality; the greater predictability of the decision of a professional judge; and the fact that a judge gives reasons".
"It is no longer the role of the court simply to provide a level playing-field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice."
"1.1 (1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as is practicable
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.
1.3 The parties are required to help the court to further the overriding objective.
1.4 (1) The court must further the overriding objective by actively managing cases.
(2) Active case management includes
(a) encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b) identifying the issues at an early stage;
(c) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d) deciding the order in which issues are to be resolved;
(g) fixing timetables or otherwise controlling the progress of the case;
(h) considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i) dealing with as many aspects of the case as it can on the same occasion;
(j) dealing with the case without the parties needing to attend at court;
(l) giving directions to ensure that the trial of a case proceeds quickly and efficiently".
"(1) The list of powers in this rule is in addition to any powers given to the court by any other rule or practice direction or by any other enactment or any powers it may otherwise have.
(2) Except where these Rules provide otherwise, the court may
(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective".
"There are, however, four factors which have been identified in the earlier cases, which have some general application and which are presently relevant, as the judge recognised:
(1) The emphasis now is against trial by juries, and this should be taken into account by the court when exercising its discretion (Goldsmith v Pressdram [[1988] 1 WLR 64] at page 68 per Lawton LJ with whom Slade LJ expressly agreed). This conclusion is based on section 69(3), which was a new section appearing for the first time in the 1981 Act to replace section 6(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the provision in force at the date when Rothermere v Times Newspapers was decided.
(2) An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest (Rothermere v Times [[1973] 1 WLR 448]).
(3) The fact that the case involves issues of credibility, and that a party's honour and integrity are under attack is a factor which should properly be taken into account but is not an overriding factor in favour of trial by jury (Goldsmith v Pressdram [[1988] 1 WLR 64, 68E] at page 71H per Lawton LJ).
(4) The advantage of a reasoned judgment is a factor properly to be taken into account (Beta Construction v Channel Four Television [[1999] 1 WLR 1042, 1056B])."
" the right given by our constitution to a Defendant who is charged with libel, either in criminal or civil proceedings. Every Defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the Defendant has ventured to criticise the government of the day, or those who hold authority or power in the state".
"We do not deny that trial by jury in criminal cases is 'the lamp that shows that freedom lives' [Lord Devlin: Trial by Jury, 1971 ed, p164], but it does seem to us incorrect to place crime and civil defamation in the same category. In criminal cases the jury as the judge of fact stands between the state and the man in the street (the accused), while in actions for defamation, also as the judge of fact, it stands between one man in the street and another, although they may sometimes be of very different wealth and power. To us accordingly the description of the jury in a libel action as a 'constitutional bulwark' seems misconceived".
"The trial by jury is also that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by [Magna Carta] in times of difficulty and danger, more is to be apprehended from the violence and partiality of judges appointed by the crown, in suits between the king and the subject than, than in disputes between one individual and another "
"Sections 8(3)(a) and (b) [of the Coroners Act 1988] make it mandatory to summon a jury in cases where the death occurred in prison or while the deceased was in police custody or resulted from an injury caused by a police officer in the purported execution of his duty. The policy consideration behind these provisions is clear; in order that there should be public confidence in the outcome of the inquest, a jury should be summoned in cases where the state, by its agents, may have had some responsibility for the death."
"The impartial administration of justice is the great end of civil society. But if that be entirely intrusted to the magistracy, a select body of men, and those generally selected by the prince or such as enjoy the highest office in the state, their decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity: it is not to be expected from human nature, that the few should always be attentive to the interests and good of the many" the most powerful individual in the state will be cautious of committing any flagrant invasion of another's right, when he knows that the fact of his oppression must be examined and decided by twelve indifferent [ie impartial] men not appointed till the hour of the trial".
"A jury is often liable to strong objections where a cry has been raised, and the passions of the multitude have been inflamed; or where one of the parties is popular, and the other a stranger or obnoxious In all these cases, to summon a jury, labouring under prejudices, is laying a snare for their consciences "
THE NEXT STEP
CONCLUSION
a) the following meanings pleaded by Mr Cook are all comment, and no jury properly directed could find otherwise:
"(i) the Claimant represented low "value-for-money" as a parliamentarian;
(ii) the Claimant's claim for £5 was particularly embarrassing having regard to his official support of the campaign to commemorate a Battle of Britain hero";
b) the following meanings pleaded by Mr Cook are arguably either comment or statements of fact, and the question whether they are comment or statement of fact could not be withdrawn from the jury (if the trial were to be by jury):
"(i) the Claimant thought it appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity;
(ii) the Claimant set out to exploit the expenses system for his own gain in disregard of his constituents' views.
(iii) the Claimant's claim for £5 was an extraordinary abuse of M.Ps' expenses and was hypocritical having regard to his official support of the campaign to commemorate a Battle of Britain hero..";
c) it is in my judgment not arguable (or at least there is no real prospect of persuading a jury, if there is one) that the omission of the two matters referred to in para 50 above is capable of leading to the conclusion that the facts were not truly stated (if the meanings which I have held to be capable of being comment are held to be comment);
d) it is not possible to say that Mr Cook has no real prospect of persuading a jury (if there is one) that Mr Sawer believed what Mr Cook had said on the telephone, and therefore did not believe that Mr Cook ever thought it appropriate to claim back from taxpayers the £5. Accordingly, the defence of comment could fail on this point, and I could not withdraw this part of the case of malice from a jury.
e) if the meaning of the words complained of is that Mr Cook set out to exploit the expenses system for his own gain in disregard of his constituents' views, then I cannot say that Mr Cook has no real prospect of succeeding in defeating the defence of justification on this point;
f) the Reynolds defence could fail on the facts, if the publication included a meaning which the journalist does not believe to be true.