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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sakho & Anor v World Anti-Doping Agency  EWHC 251 (QB) (11 February 2020)
Cite as:  EWHC 251 (QB)
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
| (1) MAMADOU SAKHO
(2) MS TOP LIMITED
|- and -
|WORLD ANTI-DOPING AGENCY
Guy Vassall-Adams QC and Victoria Jolliffe (instructed by Covington & Burling LLP) for the Defendant
Hearing date: 16 January 2020
Crown Copyright ©
Mrs Justice Steyn :
i) An email sent at 18:02 on 23 August 2016 by Ben Nichols, WADA's Senior Manager, Media Relations and Communications, to Ben Rumsby, a journalist at The Telegraph newspaper ("The Telegraph Email"); and
ii) An email sent at 21:26 on 20 April 2017 by Mr Nichols to Sean Ingle, a journalist at The Guardian newspaper ("The Guardian Email").
i) An article published in The Telegraph on 23 August 2016, bearing the headline "Exclusive: Mamadou Sakho cleared of being a drugs cheat after the World Anti-Doping Agency choose not to appeal Uefa verdict" ("The Telegraph article"), which includes the words of The Telegraph Email; and
ii) An article published in The Guardian on 20 April 2017, bearing the headline "Uefa slams Wada over incorrect handling of Mamadou Sakho's drug test" ("The Guardian article"), which includes the words of The Guardian Email.
i) Should the meaning of the Articles be determined?
ii) What is the meaning of each of the Emails?
iii) If the answer to issue (i) is yes, what is the meaning of each of the Articles?
B. Procedural history
i) Amended Particulars of Claim dated 30 July 2019;
ii) Amended Defence dated 19 September 2019; and
iii) Amended Reply dated 7 October 2019.
"C. PRELIMINARY TRIAL ON MEANING
6. There shall be a preliminary trial of the issue of meaning ("the Meaning Trial") to be listed for the first available date after 1 October 2019, before a specialist High Court Judge of the Media and Communications List, with a time estimate of one day. In terms of directions leading to the preliminary trial, the parties shall comply with paragraph 12.3 of the Queen's Bench Guide.
7. No later than 14 days before the Meaning Trial, each party shall file and serve a list of statements which the party wishes the court to determine the meaning of."
C. Issue (i): Should the meaning of the Articles be determined?
"Where a defendant's defamatory statement is voluntarily republished by the person to whom he published it or by some other person, the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the claimant may have a choice: he may (1) sue the defendant both for the original publication and for the republication as two separate causes of action, or (2) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote." (footnotes omitted)
The claimant's submissions
"The fact that the ordinary reasonable reader is assumed to read the whole of the article or other publication complained of can cause complexities if, as in this case, the claimant sues a defendant for being a source of and causing a media publication. A media publication will often include some material for which the source bears responsibility and some for which he bears none. That is true of the first six of the publications complained of in this action. Such additional material is likely to affect the meaning of the publication. The additional material may make things worse in which case the source cannot be blamed; or it may make the meaning less damaging, or even innocent, in which case the claimant must take the meaning as it emerges from the entire publication. A source or contributor cannot be sued for a defamatory meaning which only arises from part of the media publication to which he has contributed: see Monks v Warwick District Council  EWHC 959 (QB) [12-14] (Sharp J).
The defendant's submissions
"In a nutshell, it is WADA's case that where a claimant sues upon a statement provided to a media organisation as the "primary" publication, but brings his case on publication, serious harm and damages in respect of the wide foreseeable republication of that statement in an article, the Court should, in addition to determining the meaning of the "primary publication", determine the meaning of those words in the context of the article so as to be able to assess whether the republication repeats the sting or part of the sting of the original article."
i) the introduction of the serious harm threshold in s.1(1) of the 2013 Act;
ii) the close link between the Emails and the Articles, the latter being the means by which the Emails were published beyond a few journalists;
iii) the claimant's reliance on the Articles in support of his case on publication, serious harm and damage; and
iv) the substantial difference between the meanings, and the gravity, of the Emails compared to the Articles; and
v) the recognition that, in accordance with the overriding objective, it is important to resolve at an early stage issues as to the meaning which have a significant impact on whether serious harm can be demonstrated and on the value of the claim.
i) a WhatsApp message which consisted of a screenshot of the 4 May Tweet (see 128[v)]); and
ii) a Facebook post about which Nicklin J said at [128vi(b)] "The language and contents of the Eddie English Facebook post are almost identical to the 4 May Tweet".
There was no suggestion in Monir v Wood that the republications bore a significantly different and less grave meaning than the 4 May Tweet. Similarly, Suttle v Walker appears to be a case of further publication very largely in the form of sharing of the original publications (see ).
"I accept that if the press articles were not publishing any part of the sting of the alleged slander and/or had no causative link with the alleged slander, it would be wrong to allow the paragraphs to be pleaded. But the argument so far as the articles are concerned, was that they should be struck out because the articles were not repeating the full sting of the alleged slander. The distinction being drawn was between an allegation that the claimants sold fakes generally on a habitual basis and an allegation asserting only a part of that whole sting, i.e. that the claimants habitually sold fake David Beckham autographed memorabilia. It seems to me that when one is not concerned with separate causes of action but is concerned with whether damage flowed from the original publication, even a partial publication of the original sting can be causative of damage." (original emphasis)
"The plaintiff in this consolidated action founds his claim for damages on two allegedly libellous publications of this film: the first to representatives of the press on 3 November 1988 and the second to members of the public on 11 November 1988. He does not, and in my view plainly could not, found on the reviews of the film published in various newspapers as amounting to publication or republication of the libel by the defendants." (emphasis added)
"Mr. Gray submitted that the plaintiff's claim was bad in principle because he was seeking to recover against the defendants for damage caused by tortious conduct (the publication of statements defamatory of the plaintiff in the newspaper reviews) for which the defendants were not liable as publishers or republishers and could not have been successfully sued. This is an attractive submission and underlines the need for great caution in considering claims of this kind. But I do not think the claim is for this reason bad in principle. The Home Office (in Dorset Yacht Co Ltd v Home Office  AC 1004) could not have been sued for trespass to the goods of the Dorset Yacht Ltd, nor Moss (in Scott's Trustees v Moss, 17 R 32), for the trespass by the crowd which damaged the crops and fences of Scott's trustees. Those who did the damage could have been sued. But this did not, in principle, prevent recovery by the injured party against the party whose conduct had led to the causing of this damage by third parties as a natural and probable consequence. The plaintiff's case may well fail on the facts but I am not persuaded that it must fail as a matter of law."
"Read at its widest, this might seem to suggest that damages can be recovered for the republication regardless of whether the later publication would be actionable by the claimant. Thus, even if the publisher of the later publication would have had a defence, or had been released as a joint tortfeasor, in respect of that publication, damages may still be recovered by the claimant for the republication. As Eady J pointed out in Baturina v Times Newspapers, the juridical basis of the proposition that a claimant can recover damages flowing from a publication in respect of which he could not establish primary liability on the part of the defendant is difficult to ascertain. It is submitted therefore that the correct view is that where no claim would lie against the defendant in respect of the later publication, the claimant should not as a matter of principle be allowed to recover damages in respect of that publication. If the later publication is not actionable then, even if it was caused by the original publication, it would be unjust to make the defendant liable for any harm caused by that publication. If that is right, then regardless of whether a claimant relies on a republication as a cause of action or in aggravation of damages, a defendant would be entitled to meet the claim in respect of that publication with any relevant defence. That is not to say however that the original statement must be repeated word for word in the republication. Provided a media report of the initial publication conveys the sting of the original, in whole or in part, it may be relied on to increase the damages flowing from the initial publication even if it cannot be said to "repeat" what was then said."
"In both Baturina v Times Newspapers  EWHC 696 (QB) at  and Budu v BBC  EWHC 616 (QB) at  the judges suggested that the Court of Appeal in Slipper v BBC recognised implicitly that it would have been open to the claimant to sue in respect of the reviews in so far as they simply republished the words of the libel itself".
Meaning: The Law
"i) The governing principle is reasonableness.
ii) The intention of the publisher is irrelevant.
iii) 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. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
viii) The publication must be read as a whole, and any 'bane and antidote' taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic "rogues' gallery" case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).
ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning)."
"In the light, in particular, of principles (v) to (x) and (xii), it is common practice among judges dealing with issues of meaning in defamation claims to read the article complained of and form a provisional view about their meaning, before turning to the parties' pleaded cases and the arguments about meaning."
The Telegraph Email
"With the support of its List Expert Group, WADA thoroughly reviewed the full [Sakho] case file along with recently published articles on higenamine. WADA supported the List Expert Group's unanimous view that higenamine is a beta2-agonist and does indeed fall within the S3 class of the Prohibited List.
However, after careful review of the specific circumstances of the case, WADA decided not to appeal. Mr. Sakho had already served a provisional suspension of 1 month and, given the circumstances of the case, it is uncertain whether a significantly higher sanction would have been justified and obtained based on the Code and, more specifically, Mr. Sakho's degree of fault.
Regarding possible legal action, you would need to speak to the club or player."
"The First Claimant was guilty of culpably and/or recklessly taking a prohibited, performance-enhancing substance which fell within the S3 class of the World Anti-Doping Agency's Prohibited List, in breach of the WADA Code, and his conduct and degree of fault was such that justified a sanction of at least one month's suspension, and possibly a significantly higher sanction."
"the First Claimant was guilty of taking Higenamine, a prohibited substance which fell within the S3 class of WADA's Prohibited List, in breach of the WADA Code. However, WADA had decided not to appeal UEFA's decision, as it was uncertain if this code violation would justify a sentence of significantly more than one month's suspension based on the WADA Code and the First Claimant's low degree of fault."
"The First Claimant was guilty of taking a prohibited, performance-enhancing substance which fell within the S3 class of the World Anti-Doping Agency's Prohibited List, in breach of the WADA Code. However, his low degree of fault was such that it was uncertain whether it would justify more than the one month's suspension he had already served voluntarily."
The Guardian Email
"We read your article earlier about higenamine and the Sakho case: https://www.theguardian.com/football/2017/apr/20/mamadou-sakho-liverpool-positive-test-uefa-wada
Here is our response, should you wish to incorporate this:
Higenamine has been considered prohibited ever since the 2004 Prohibited List, however it was expressly named (for the first time) on the 2017 List as an example of a selective and non-selective beta-2-agonist.
With regards to the case of Mr Mamadou Sakho, WADA, with the support of its List Expert Group, thoroughly reviewed the full case file along with recently published articles on higenamine. WADA supported the List Expert Group's unanimous view that higenamine is a beta-2-agonist and does indeed fall within the S3 class of the Prohibited List. It was decided, however, after careful review of the specific circumstances of the case, that WADA not lodge an appeal.
Whilst higenamine has been considered prohibited since 2004, its prevalence within dietary supplements has surfaced more recently. Therefore, in early August 2016, WADA requested its network of accredited laboratories to implement systematic testing for higenamine; although it is clear that some laboratories already conducted routine testing for higenamine before this date."
"The First Claimant was guilty of culpably and/or recklessly taking a prohibited, performance-enhancing substance which had been prohibited since 2004 and fell within the S3 class of the World Anti-Doping Agency's Prohibited List, in breach of the WADA Code, and his conduct merited a finding of guilt and a sanction."
"the First Claimant was guilty of taking Higenamine, a prohibited substance which fell within the S3 class of WADA's Prohibited List, in breach of the WADA Code."
"The First Claimant was guilty of taking a prohibited, performance-enhancing substance which had been prohibited since 2004 and fell within the S3 class of the World Anti-Doping Agency's Prohibited List, in breach of the WADA Code. This conduct was culpable."
The Telegraph Article
"Exclusive: Mamadou Sakho cleared of being a drugs cheat after the World Anti-Doping Agency choose not to appeal Uefa verdict."
"Wada has left itself open to being sued by Sakho and Liverpool over the extraordinary chain of events."
"The threat of Mamadou Sakho serving a full drugs ban was lifted once and for all on Tuesday night (http://www.telegraph.co.uk/football/2016/07/08/liverpool-defender-mamadou-sakho-cleared-by-uefa-after-doping-ca/) after the World Anti-Doping Agency confirmed it had chosen not to appeal against Uefa's decision to absolve him of taking a banned substance.
Wada left itself open to being sued by Sakho and Liverpool over the extraordinary chain of events which led to the France defender missing last season's Europa League final and European Championship.
Telegraph Sport exclusively revealed last month that the agency was reviewing the decision by Uefa's control, ethics and disciplinary body to clear Sakho, with a view to lodging a possible appeal. On Tuesday night, it finally confirmed it had chosen not to do so, despite standing by its position that the 26-year-old had taken a banned substance.
The outcome of the Sakho case threatens to shatter confidence in Wada's ability to lead the fight against drugs in sport, the credibility of its science department already in question over its handling of the Meldonium debacle.
A source close to the Sakho proceedings told Telegraph Sport last month: "The way in which Wada managed this case is unacceptable, absolutely unacceptable."
Wada was said to have intervened in the case after the player tested positive for a substance called Higenamine following the second leg of Liverpool's Europa League tie against Manchester United on March 17.
The prosecution collapsed after the end of last season when his lawyer, world-renowned specialist Mike Morgan, demonstrated to Uefa's satisfaction that the science that could reasonably lead Wada to class Higenamine as a banned substance – a so-called beta2-agonist – was not robust.
Sakho had already served a voluntary provisional ban at that stage, including missing the Europa League final, while France did not select him for the Euros.
A Wada spokesman said on Tuesday night: "With the support of its List Expert Group, Wada thoroughly reviewed the full case file along with recently published articles on Higenamine. Wada supported the List Expert Group's unanimous view that Higenamine is a beta2-agonist and does indeed fall within the S3 class of the Prohibited List.
"However, after careful review of the specific circumstances of the case, Wada decided not to appeal. Mr. Sakho had already served a provisional suspension of one month and, given the circumstances of the case, it is uncertain whether a significantly higher sanction would have been justified and obtained based on the [Wada] Code and, more specifically, Mr. Sakho's degree of fault.""
"in spite of the fact that UEFA had acquitted the First Claimant and rejected the science behind WADA's classification of Higenamine as a banned substance, there were reasonable grounds to suspect that the First Claimant was guilty of taking Higenamine, a prohibited substance which fell within the S3 class of WADA's Prohibited List, in breach of the WADA Code. However, WADA had decided not to appeal UEFA's decision, as it was uncertain if this Code violation would justify a sentence of significantly more than one month's suspension based on the WADA Code and the First Claimant's low degree of fault."
"The First Claimant has been absolved of taking a prohibited, performance-enhancing substance after a positive test gave rise to grounds to investigate whether he had done so. WADA maintains that the substance he took falls within a class which is on the Prohibited List, but when their position was tested it failed to stand up to scrutiny and WADA are not appealing the verdict."
The Guardian Article
"Uefa has heavily criticised the World Anti-Doping Agency for wrongly flagging up a positive drugs test by the Liverpool defender Mamadou Sakho after he took a fat-burner without the club's knowledge last year.
Sakho, who is now on loan at Crystal Palace, was suspended at the end of April 2016 after testing positive for higenamine following the second leg of Liverpool's Europa League last-16 tie against Manchester United the previous month. However, in early June Uefa's disciplinary body absolved Sakho of taking a performance-enhancing drug and on Thursday European football's governing body went further still, releasing a damning report point out that higenamine is not specifically listed on Wada's prohibited list.
The report also suggested there are significant doubts among experts about whether higenamine is among a group known as B2-agonists, all of which are banned by Wada – and pointed out that Wada's laboratories do not routinely test for the substance and if Sakho's sample had been handled by the Lausanne laboratory and not Cologne's then it would not have been tested for higenamine.
The Uefa report added: "Higenamine is not expressly mentioned by name on Wada's prohibited list. The fact that the Cologne laboratory tested for higenamine but had to check with Wada before making a determination indicates a problem, as does the fact that the Lausanne laboratory does not test for higenamine at all.
"In this regard, Dr Saugy [giving evidence] explained that he has not received any formal instruction from Wada to test for higenamine and explained that the Lausanne laboratory would not start testing for higenamine until such communication is received."
It continued: "The onus is clearly on Wada to communicate to its laboratories what is and what is not on the prohibited list. There are clearly gaps in communication with regard to higenamine, something which also tends to support the suggestion that Wada's own internal procedure and analysis in respect of this substance is incomplete."
Sakho was suspended by Liverpool when Jürgen Klopp, their manager, and the club's owner, Fenway Sports Group, agreed it would be prudent to omit him from games while the investigation commenced, and he was then provisionally suspended by Uefa. Among the games he missed was the Europa League final, which Liverpool lost 3-1 to Sevilla after leading at half-time, and he was also omitted from France's squad for Euro 2016.
At the time Michele Verroken, Director of Sporting Integrity and formerly in charge of anti-doping in the UK, said she advised athletes against using any substances described as fat-burners. "What is causing that fat to burn is that these supplements contain a form of stimulant," she said. "They are not regulated products. It's just too big a risk. I warn against any weight-loss products. It's probably going to be a prohibitive supplement."
Sakho fell out with Klopp having been sent home from a pre-season tour for reporting late for a series of team meetings during the trip to the United States, after which he was accused of displaying "a lack of respect". But having missed the early part of the season with an achilles injury he has prospered after joining Palace in January.
However Wada spokesman Ben Nichols insisted that many of Uefa's criticisms were misplaced. "Higenamine has been considered prohibited ever since the 2004 Prohibited List, however it was expressly named [for the first time] on the 2017 List as an example of a selective and non-selective beta-2-agonist.
With regards to the case of Mr Mamadou Sakho, Wada, with the support of its List Expert Group, thoroughly reviewed the full case file along with recently published articles on higenamine. Wada supported the List Expert Group's unanimous view that higenamine is a beta-2-agonist and does indeed fall within the S3 class of the Prohibited List. It was decided, however, after careful review of the specific circumstances of the case, that Wada not lodge an appeal."
He added: "Whilst higenamine has been considered prohibited since 2004, its prevalence within dietary supplements has surfaced more recently. Therefore, in early August 2016, Wada requested its network of accredited laboratories to implement systematic testing for higenamine; although, it is clear that some laboratories already conducted routine testing for higenamine before this date.""
"In spite of the fact that UEFA had acquitted the First Claimant and seriously criticised WADA for classifying Higenamine as a banned substance and WADA had decided not to appeal UEFA's decision, there were reasonable grounds to suspect that the First Claimant was guilty of taking Higenamine, a prohibited substance which fell within the S3 class of WADA's Prohibited List, in breach of the WADA Code."
"The First Claimant has been absolved of taking a prohibited, performance-enhancing substance after a positive drugs test was wrongly flagged up. Grounds to investigate arose when the First Claimant took a fat-burner which resulted in one of WADA's laboratories finding he had higenamine in his system. However, the substance is not specifically named on the Prohibited List or consistently tested for by the laboratories and even the experts were unsure whether it falls within a prohibited class. WADA maintains that the substance the First Claimant took has been on the Prohibited List since 2004, but it is not appealing."