Full case report
Krause v Newsquest Media Group Ltd
Reference  EWHC 3400 (QB)
Judge Tugendhat J
Date of Judgment 11 Nov 2013
court reports – absolute privilege – defamatory meaning – abuse of process – Gender Recognition Act 2004
C issued two libel claims. The first, against Newsquest and Cheshire Police, was based on the publication of a report containing a contemporaneous court report of proceedings in the Crown Court in which C was a defendant and a statement by a senior police officer about the case also forming part of the report. C had received repeat convictions for harassment and breaches of harassment restraining orders and been sentenced to community service, a sentence which was cut by the Court of Appeal. Appeals against conviction were dismissed. C sued on statements in the report to the effect that she was legally a woman but born male, was arrogant, obsessive and had undermined the police investigation. The Ds applied to strike out on the basis that the court report section was absolutely privileged, the police statement covered by qualified privilege under s. 15 DA 1996, the statement related to birth gender non-defamatory and the claim an abuse for the reason that the public record of the convictions eliminated any prospect of real vindication to reputation and was a collateral attack on the decisions in the criminal courts and on limitation. In a second claim against Newsquest alone C complained that a reference to her complaining to the Court of Appeal that her community service mowing task was too heavy work in a court report of proceedings was defamatory, meaning she was a shirker. C submitted at the hearing that her comments about the lawnmower were made outside the court. The grounds for striking out the second claim were that the allegation was not capable of defaming C, s. 14 privilege for court reports applied and the claim was an abuse of process.
(1) Whether the statement that C was legally female but born male and had complained about the heaviness of a lawnmower she was required to use were capable of defamatory or serious defamatory meaning.
(2) Whether having regard to C’s criminal convictions the claims could yield any vindication to reputation or whether the claim was an abuse of process.
(3) Whether either or both court reports or parts of them were protected by absolute privilege under s. 14 DA 1996 or s. 15 DA 1996.
(4) Whether a claim presented at a court building to security staff on the last day of the limitation period after the court office had closed was statute-barred.
Striking out both claims and making an extended civil restraint order:
(1) The statements that C was legally female and that she had complained about the heaviness of a lawnmower she was required to move for community service were not capable of being defamatory of C.
(2) In each case the fact of the criminal convictions meant that the claims would not have the effect of vindicating C’s reputation and the first claim was a collateral attack on the decisions of the criminal courts to convict C for harassment of her neighbour.
(3) The Court did not need to decide whether the articles were protected by absolute or qualified privilege or whether the first claim was time-barred.
This was the first case to consider whether an allegation that an individual had changed their sex was defamatory or not. Perhaps unsurprisingly the Court ruled that it was not. Parliament enacted the Gender Recognition Act in 2004 to allow legal recognition for trans-gender people. Obiter the Judge implied that the inclusion of defamatory comments made outside the courtroom within a court report would fall outside the protection of privilege under s. 14 and another basis for defending would be required.
In house for Newsquest and Cheshire Police; C in person
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.