Full case report
Cook v Telegraph Media Group Ltd
Reference  EWHC 763 (QB
Court Queen's Bench Division
Judge Tugendhat J
Date of Judgment 29 Mar 2011
Defamation – Part 24 – Justification – Honest comment – Reynolds privilege – Mode of trial
In 2006 the Claimant’s assistant made a £5 donation to a Battle of Britain memorial service in his constituency on his behalf. His claim for reimubursement of the donation as a Parliamentary expense was rejected. C was also a supporter of the campaign to commemorate Air Chief Marshall Sir Keith Park, a Second World War fighter commander. As part of its coverage of MPs expenses, The Sunday Telegraph published three articles on 31 May 2009 concerning C’s refused claim for reinbursement. C claimed that the articles conveyed meanings that he was a “low value-for-money” MP and that the reimbursement claim was an extraordinary abuse and exploitation of the expenses system. The newspaper applied to strike out the claim as disclosing no prospect of defeating defences of justification, honest comment or Reynolds privilege. On Reynolds, C accepted public interest, but argued that the 2-3 hours time to respond to allegations given to him was unfair, C’s acceptance that the reimbursement was unjustified was ignored in 2 of 3 articles published, and the use of the term “low value for money” connoting voting performance misled readers. On comment C contended the words were statements of fact, and that the newspaper’s journalists knew the factual basis for the article was untrue. On justiciation, the C’s case was that it was false that he had exploited the system, thought it appropriate to make the claim, or that it was hypocritical.
(1) Whether summary judgment should be entered for the defendant on the basis that the claim had no reasonable prospect of defeating defences of honest comment, justification and Reynolds privilege.
(2) Mode of trial.
(1) Allegations of being a “low value for money” MP and embarassment at the £5 claim were unarguably comments not statements of fact.
(2) Allegations that C thought the expenses claim appropriate, set out to exploit the system, or abused the system were arguably fact or comment, to be determined at trial.
(3) The omission of facts from the articles that C had told the journalist he was precluded from certain votes driving down his attendance figures and that considered the expenses claim inappropriate did not lead to the conclusion that underlying facts were not truly stated, but might go to honest belief.
(1) Evidential conflicts prevented the Court from resolving the issues on a Part 24 application.
(1) It could not be said that C had no real prospect of defeating the defence of Reynolds privilege: the belief of the journalist, whether the defence protects comment pieces and the sufficiency of the opportunity to comment all needed to be resolved.
Mode of trial:
(1) Outside the 28 day window under CPR 26.11 for making an application for trial with a jury, the Court will exercise its discretion to order trial by jury, taking into account a wide number of case management factors, from a starting presumption of trial without jury. The wishes of the parties are one factor. Other factors are (1) cases involving figures from public life, (2) the advantages of reasoned judgment and (3) cases involving issues of honesty and integrity (4) the involvement of the state as a defendant.
(2) The facts of the case favoured trial by judge alone. C was no longer a public figure and the underlying matter not one of great national interest.
The Judge’s decision contains much useful guidance for media litigators. The Judge relied upon what Lord Phillips had said in Spiller v Joseph, namely that seemingly modest disputes may give rise to issues of complexity best resolved at substantive hearings rather than expensively at interlocutories, several of the issues in the application being more suitable for determination by a jury or judge sitting alone at trial. The decision is also a further nail in the coffin of trial by jury in defamation. The facts of the case made it unsuited to trial with a jury but the judgment includes a lengthy paean on the advantages of trial by judge alone: the benefit of reasoned judgments lending themselves to appeal, early rulings on meaning, the avoidance of excessive awards, and the avoidance of disproportionately redeploying the same arguments before a jury, a judge having heard the same arguments at an interim stage.
Hill Dickinson for C, David Price for D
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