In our previous blog, we discussed the case brought by the Duke of Sussex against Associated Newspapers Ltd in February 2021. Associated Newspapers has again published an article that the Duke of Sussex did not like and accordingly he has commenced proceedings against the organisation again.
The offending article was published by the Mail on Sunday and the MailOnline on 19 and 20 February 2022 with the headline: “REVEALED: How Harry tried to keep his legal fight over bodyguards secret… then minutes after MoS broke story his PR machine tried to put positive spin on the dispute” (Article).
On 8 July 2022, Mr Justice Nicklin handed down judgment on:
“i) the natural and ordinary meaning of the Article;
- ii) whether the Article is (or includes) a statement of fact or expression of opinion; and
iii) whether the Article is, in any meaning found, defamatory of the Claimant at common law.”
Whilst the Claimant sought to also have a determination as a preliminary issue whether there had been serious harm sustained by the Claimant, the Judge concluded that such an issue required substantial witness evidence, whereas the other matters to be tried as a preliminary issue did not and accordingly refused to consider serious harm as a preliminary issue.
As is usual in defamation cases, the parties set out their case on what natural and ordinary meaning should be attributed to the words set out in the Article. The Claimant’s position was that the natural and ordinary meanings were:
“…the Claimant had
(1) lied in his initial public statements to the effect that he had always been willing to pay for police protection in the UK, when the true position, as revealed by High Court documents, was that he had only made such an offer recently, after his dispute with the Home Office had started and after his visit to the UK in June 2021;
(2) improperly and cynically tried to manipulate and confuse public opinion by authorising his ‘spin doctors’ to put out false and misleading statements about his willingness to pay for police protection immediately after the Mail on Sunday had revealed that he was suing the Government; and
(3) tried to keep his legal fight with the Government secret from the public, including the fact that he expected British taxpayers to pay for his police protection, in a way which was improper and showed a lack of transparency on his part.”
The Defendant responded to confirm that its position on the natural and ordinary meaning was as follows:
“(1) The Claimant initially sought a far-reaching confidentiality order in his legal fight with the government over his claimed entitlement to police security when in the United Kingdom which would have kept from the public documents and witness statements deployed in the action and later agreed to relax that position after the Home Office argued for more transparency.
(2) The Claimant’s PR team issued a public statement on the Claimant’s behalf within minutes of news of the legal action breaking in a Mail on Sunday article, which spun the story to imply that the Claimant had brought proceedings to challenge the Home Office’s refusal of his offer to pay for police protection in the UK, when in fact no such offer to pay had been made to RAVEC before his visit in June 2021 or to the Home Office in correspondence prior to the commencement of the proceedings. This rebutted the Claimant’s initial public statement which implied that he had always been willing to pay.
(3) In consequence of the statement from his PR team, the media were confused and the public misinformed by the resulting media coverage.”
Having heard from Counsel on both sides, the Judge found as follows:
“26. In my judgment, the natural and ordinary meaning of the Article is as follows:
(a) in his legal claim against the Home Office over the provision of police protection, the Claimant had initially sought confidentiality restrictions that were far-reaching and unjustifiably wide and were rightly challenged by the Home Office on the grounds of transparency and open justice;
(b) the Claimant was responsible for public statements, issued on his behalf, which claimed that he was willing to pay for police protection in the UK, and that his legal challenge was to the Government’s refusal to permit him to do so, whereas the true position, as revealed in documents filed in the legal proceedings, was that he had only made the offer to pay after the proceedings had commenced; and
(c) as such, the Claimant was responsible for attempting to mislead and confuse the public as to the true position, which was ironic given that he now held a public role in tackling “misinformation”.
- The underlined passages of the meaning are expressions of opinion, the balance makes allegations of fact. I am satisfied that these meanings are defamatory at common law, albeit only narrowly in respect of (a).”
The Judge formed the above view having adopted the approach accepted as appropriate in these sorts of cases of adopting the role of the hypothetical reader by reading the article before hearing from the parties in the case so as to get a flavour of what he got from the article in accordance with Tinkler -v- Ferguson [2019] EWCA Civ 819. In the Tinkler case, the Judge also referred to a passage that dealt with inferential meanings and how they should be dealt with for the purpose of the natural and ordinary meaning:
“I agree … that a number of adjectives and adverbs have been inserted into the Claimant’s meaning which are not part of the natural and ordinary meaning of the words. They are strained constructions of what is being said in the Announcement. For example, if an individual reader thought that the Claimant’s alleged behaviour was ‘selfish’, but that would be a personal judgment made by the individual reader. It is neither stated nor implied in the text. Such inferential meanings (that depend upon – and vary between – each individual reader’s moral judgment) are not part of the natural and ordinary meaning of words: Brown -v- Bower [2017] 4 WLR 197 [54]. In context, a suggestion that the conduct of the Claimant was ‘selfish’ would be an expression of an opinion. If such an opinion is expressly stated by the author, then it can readily be identified as such by readers. I find the notion of an ‘inferred opinion’ conceptually difficult. I suppose it is conceivable that an article may not make express an author’s view, but it nevertheless emerges clearly as a result of discernible indications in the text as to what his or her opinion actually is on the given facts. But this is very subjective; and it may be difficult to separate out those cases from cases where what is really happening is simply that the reader is supplying his or her own judgment on the stated facts rather than detecting the author’s opinion by implication.”
Comment
As the comments have been found to be defamatory at common law and now that the natural and ordinary meanings are known, the case will now proceed on the basis that the Defendant will be given the opportunity to submit a defence with a view to seeking to avail itself of any of the statutory defences available in defamation cases.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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