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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Price v MGN Ltd [2018] EWHC 3014 (QB) (08 November 2018) URL: https://www.bailii.org/ew/cases/EWHC/QB/2018/3014.html Cite as: [2018] WLR(D) 690, [2018] 4 WLR 150, [2018] EWHC 3014 (QB) |
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Sean Price |
Claimant |
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- and - |
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MGN Limited |
Defendant |
____________________
Adam Wolanski (instructed by Simons Muirhead & Burton LLP) for the Defendant
Hearing date: 30 October 2018
____________________
Crown Copyright ©
See also Appendix 1 to this judgment>
MR JUSTICE WARBY :
"[1] A police force last night faced stinging criticism for unlawfully snooping on the Daily Mirror after we revealed its Chief Constable blew taxpayers' cash to conduct an affair with a colleague.
[2] Bosses used powers designed to track terrorists and dangerous criminals to access my phone records as well as those of other journalists, officers and a solicitor in a bid to find who was leaking information about alleged racism within its ranks.
…
[6] Cleveland Police admitted it accessed my mobile records under the Regulatory Investigatory Powers Act of 2000.
…
[22] In 2010, the Mirror told how Price had started a fling with Eastwood, now his wife. An internal report by Cleveland Police told how he tried to cover up his affair when we first broke the story.
…
[34] Five months after our phone records were accessed, Price became the first chief constable to be sacked in 35 years. …"
"POLICE used terror laws to snoop on Mirror phone records after it was revealed a Chief Constable lied about his fling with a colleague.
Cleveland bosses accessed data after reports that Sean Price blew public cash on the relationship and other allegations of racism within the force. One MP said: "This is shocking. We do not live in a police state."
"[1] A POLICE force last night faced stinging criticism for unlawfully snooping on the Daily Mirror after it was revealed its Chief Constable blew taxpayers' cash to conduct an affair with a colleague.
[2] Bosses used powers designed to track terrorists and dangerous criminals to access my phone records as well as those of other journalists, officers and a solicitor in a bid to find who was leaking information about alleged racism within its ranks.
[3] We had told how £191,000-a-year Cleveland Chief Constable Sean Price was having a fling with his chief staff officer Heather Eastwood. He claims the romance started after he had left his wife Jackie, but that turned out to be a lie.
[4] Later sacked for gross misconduct and branded a liar and a bully, he also spent £57,800 on a force credit card, which included bills for hotels and flowers.
[5] Cleveland Police admitted it accessed my mobile records under the Regulatory Investigatory Powers Act of 2000. And a tribunal in London heard it breached communication data powers to get hold of the information.
[6] It claimed the move was done by mistake. But former Shadow Home Secretary Yvette Cooper branded the breach "very serious".
[7] The Commons Home Affairs Select Committee chairwoman said: "Communications data powers exist so the police can investigate serious crimes, not so they can prevent journalists holding them to account. In a democracy the freedom of the Press is incredibly important and needs to be protected not undermined. …""
"[1] WELCOME to Stasi Britain, where cops spy on journalists investigating credible allegations of police corruption.
[2] If this had been in Putin's Russia, our PM and Foreign Secretary would rightly denounce state intimidation and an unwarranted assault on press freedom.
[3] So we must now hold to account the high-ranking uniforms who abused positions of trust to cover up bad behaviour by public servants. Covertly monitoring calls by my respected colleague Jeremy Armstrong rode roughshod over his right to privacy and civil liberties. The police happily tracing calls in the hope of unmasking a mole tells me they were more anxious to avoid embarrassment than ensure public money was spent wisely.
[4] But a broader, more terrifying truth is this alerts us to the danger of the police as a law unto themselves, prepared to stamp on anybody who gets in their way.
[5] Gagging papers, halting probes would make their life easier at the expense of the public good. The disinfectant of daylight keeps the authorities honest.
[6] Spying on the Press is the e-version of a baton. I condemn cases where journos broke laws with no public interest defence - and we must equally robustly stand up to the snooper cops.
[7] Journalism at its best speaks truth unto power, so we should be concerned that's why the police accessed records."
"[1] The cheating policeman at the centre of the Mirror data scandal has claimed HIS phone was monitored too.
…
[4] Cleveland Police has admitted accessing Mirror phone records for four months from Jan 1 to May 1, 2012 - at the time we ran a number of stories on Price and the long-running investigation into claims of his corruption."
"…you know last week a journalist was revealed to have been, had his data accessed by a Police officer who was upset that he was investigating his fraudulent trips with his girlfriend to the States and that's the kind of abuse you get when you've got blanket retention and no serious authorisation system… ."
"(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' …"
(1) "that he had been sacked in disgrace from his position as Chief Constable of Cleveland Police, and was the first chief constable to be sacked in 35 years, having been "branded a liar and a bully" and having had his lies exposed" (First and Second Articles); "
(2) "that his sacking came after the Mirror had broken the story of his affair with a colleague, after he had lied about that affair and after he had spent thousands of pounds of taxpayers' money on 'jollies' with Ms Eastwood, including spending £57,800 on the force credit card on staying at top London hotels and had splashed out on flowers, food, drink and travel (First and Second Articles);
(3) "that he was a disgraced ex-Chief Constable who was sacked after being branded a 'liar and a bully', and was corrupt" (Third Article).
It is submitted, however, that references in the articles to the interception of phone records are not presented as having anything to do with the claimant.
Summary judgment
Procedural context
"(1) The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success.
(2) A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.
(3) In reaching it conclusion, the court must not conduct a 'mini-trial'.
(4) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.
(5) However, in reaching its conclusion, the court must take into account not only the evidence actually placed before it on the application for summary judgment but also the evidence that can reasonably be expected to be available at trial.
(6) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where 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.
(7) On the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it."
This application
(a) The claimant is making no complaint in these proceedings of the seriously defamatory imputations within the articles that the claimant had been sacked in disgrace from his job as chief constable following findings that he has acted corruptly and dishonestly and branded a liar and a bully ("the dismissal allegations"). He could make no such complaint since the dismissal allegations were true.
(b) In the light of the truth of the dismissal allegations if (contrary to the defendant's case) the articles bore meanings complained of, publication of these imputations cannot have caused serious harm to the claimant's reputation."
"… the Defendant submits that because of the Claimant's existing reputation as a corrupt and dishonest police officer, branded a liar and a bully and who was fired for misconduct, the publication of the three articles complained of cannot have caused serious harm to his reputation … Moreover, if this is wrong, by reason of the above matters, which form background context to the publication of the article complained of, any damages … would be reduced very substantially, quite possibly to a nominal award."
The implied references here are to the statutory threshold of "serious harm" to reputation and the established common law principles that (1) damages must not be assessed in blinkers; account must be taken of directly relevant background context to the words complained of: Burstein v Times Newspapers Limited [2001] 1 WLR 579; and (2) proof of a pre-existing bad reputation may reduce or extinguish any damages.
The legal context
(1) Where a publication contains more than one defamatory imputation, the claimant is entitled to select which he wishes to complain about: Polly Peck (Holdings) Ltd v Trelford [1980] QB 1000 (CA) 1020, 1032 (O'Connor LJ).
(2) If he complains of two or more allegations, and the defendant relies on the defence of truth, that defence may succeed even if the defendant fails to prove the truth of all the allegations complained of. This is a statutory principle, first enacted in s 5 of the Defamation Act 1952, but now enshrined in s 2 of the Defamation Act 2013, which provides as follows:
"2 Truth
(1) It is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the defence under this section does not fail if, having regard to the imputations which are shown to be substantially true, the imputations which are not shown to be substantially true do not seriously harm the claimant's reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5 of the Defamation Act 1952 (justification) is repealed."
(3) Where a publication contains two or more distinct defamatory imputations, the claimant can complain of one and the defendant may not defend that imputation by proving the truth of one or more of the others: Polly Peck (ibid)., Carlton Communications plc v News Group Newspapers Ltd [2001] EWCA Civ 1646 [2002] EMLR 16.
It follows that the defendant in the present case could not plead a defence of truth which asserted the truth of the Dismissal Allegations. They are not complained of by the claimant, and they are separate and distinct from any Interception Meaning (that is the defendant's own case, and the defendant is right). And there is no suggestion that this is a "common sting" case (see Polly Peck and Carlton for an explanation of that term).
(1) Proof that the defendant has published a serious defamatory imputation will ordinarily justify an inference that the publication has caused serious reputational harm:Lachaux
[70] (above), and [82(3)].
(2) "The defendant may seek to rebut or challenge the drawing of such an inference" (ibid.[70]) and if so the defendant "… may in an appropriate case, if the circumstances so warrant, issue a Part 24 summary judgment application or issue a Jameel application": [82(5)].
(3) But "Once [the inferential] threshold has been reached further evidence will then be likely to be more relevant to quantum and any continuing dispute should ordinarily be left to trial":
Lachaux
[82(3)].
(1) A defendant may seek to show that the claimant's reputation has not in fact suffered, or not much, by proving that at the time of publication the claimant had an existing bad reputation. This was a clear common law principle in relation to mitigation of damages. The same point holds good, but with greater force, in the modern legal context where a claimant must establish "serious harm" under s 1. In principle, a defendant can establish that there is no cause of action because the claimant's reputation is so bad that the offending publication did not cause serious harm. Ahmed (above) is a case where it was so clear that this would be the outcome that summary judgment was appropriate.(2) But there are clear limits to what is considered relevant and admissible for the purpose of, and the means by which a bad reputation can be proved.
(a) Reputation is not considered for this purpose to be a single indivisible thing. It is only the claimant's reputation in the relevant "sector" of his life that matters for this purpose.(b) It is not legitimate to plead or prove in mitigation of damages specific acts of misconduct, even if they concern the same "sector" of the claimant's life: the rule in Scott v Sampson (1882) 8 QBD 491.(c) It is not legitimate to rely in mitigation of damages on the fact that the publication complained of contains other defamatory allegations about the claimant of which he has not complained: Plato Films Ltd v Speidel [1961] AC 1090, where the House of Lords refused to reverse or qualify Scott v Sampson. At 1125, Viscount Simonds said this:"It surprises me that it should be considered a proper matter for pleading that a plaintiff has not thought fit to include in his action every libellous statement made about him by a defendant. It is, in my opinion, wholly improper."(d) Further,"it is not legitimate for a defendant to seek to reduce damages by proving [other] publications of the defendant or others, and inviting an inference that those other publications have injured the claimant's reputation."Lachaux
v Independent Print Ltd [2015] EWHC 2242 (QB) [2016] QB 402 [15(9)], summarising "the rule in Dingle" (Associated Newspapers Ltd v Dingle [1964]AC 371). Bad reputation must be proved by calling witnesses to speak of a person's actual reputation in the relevant sector.
(e) By way of exception to these general principles, criminal convictions may be admitted in evidence to prove a bad reputation in a relevant sector of a person's reputation, as "they are the very stuff of reputation": Goody v Odhams Press Ltd [1966] 1 QB 333. This is the principle applied in Ahmed.
The factual background here
"My extremely high-profile arrest ruined my life and my reputation and it is now clear for all to see that it was completely unnecessary, disproportionate and unlawful. The ongoing and misguided criminal investigation has been a complete waste of £5m of public money."
The arguments
"Nor can the report of a particular incident, even if it be notorious, be brought up against the plaintiff. If it refers to the same matter as the libel, it tends to prove a justification and is therefore not admissible in mitigation of damages but only in support of a plea of justification. If it refers to something different from the libel, it cannot be admitted because it is specific misconduct which it is not considered fair that you should bring up against him, see Speidel v Plato Films Ltd."
Any expansion of the Goody principle would be a radical change in the law. A summary judgment application is an inappropriate vehicle for suggesting anything of the kind.
Abuse of process
Disposal