Full case report
Lait v Evening Standard Ltd (CA)
Reference  EWCA Civ 859;  1 WLR 2973;  EMLR 4
Court Court of Appeal
Judge Lord Neuberger MR, Laws & Longmore LJJ
Date of Judgment 28 Jul 2011
Libel – MPs’ expenses – Honest comment – Summary judgment – Justification – Jameel abuse – Summary judgment for D on honest comment – Residual claims dismissed as an abuse – Appeal – Single meaning rule – Alleged breach of rule by Judge – Single meaning rule applies to comment – Judge did not err – Jameel jurisdiction part of law’s balancing of rights
C was an MP. In the wake of the expenses scandal the Kelly report recommended, among other things, that MPs with an easy commute between their constituencies and Westminster should no longer be able to claim additional accommodation expenses. C and other MPs wrote to The Times protesting at this change. Later that day an article in the Evening Standard reported the Times letter. The article commented that the MPs’ criticisms “may risk the ire of some”, citing her substantial travel expenses claims and asserting that she had been “forced” to repay nearly £25,000 after it “emerged” that she had made a major capital gain on a taxpayer-funded second home. The second of these allegations related in truth not to C but to another MP. D published a correction.
C sued for libel. A defence alleging honest comment and justification was pleaded. This relied in part on the fact that C had bought a second home with taxpayer funding: her constituency flat, mortgage interest on which she had claimed as expenses.
C applied for summary judgment on both defences. D applied for summary judgment on the honest comment defence and the striking out of the rest of the claim as an abuse on Jameel principles. By the time of the hearing, C had sold her constituency flat, making a capital gain of some £175,000 of which some £130,500 arose from the taxpayer-funded part.
Eady J dismissed C’s application, holding that the defences could succeed. He dismissed the action, holding that honest comment was bound to succeed in respect of the “may risk the ire” comment (later dubbed the “shut up meaning”), and that the residual “hypocrisy” and “underhanded” meanings were unworthy of a trial.
(1) Whether the Judge should have left the hypocrisy meaning and/or the underhanded concealment meaning to a jury;
(2) Whether the Judge erred in law in failing to apply the single meaning rule;
(3) Whether the Judge was wrong to dismiss as Jameel abuse those parts of the claim in respect of which he did not grant summary judgment
(1) The Judge was right to hold that the words plainly meant that people could get angry at C’s conduct, and that no reasonable jury could find otherwise. The hypocrisy meaning was at most an additional imputation.
(2) The single meaning rule did apply to honest comment cases. That was established by binding Court of Appeal authority. However, it did not follow that the shut up and hypocrisy meanings were alternatives. The correct analysis was not that a jury could either find the words to bear the shut up meaning or the hypocrisy meaning. Rather, a jury could find either that the words bore only the shut up meaning or that they bore that meaning and the hypocrisy meaning.
(3) The Judge was right to dismiss the case.
(a) As to the hypocrisy meaning
– The engine of the Jameel jurisdiction is not only the overriding objective but also the need to keep freedom of expression and the protection of reputation in proper balance. This will especially be so where a defence of honest comment is advanced by a responsible journalist, and the proper balance will be material when the court has to consider an honest comment defence.
– Accordingly, where a comment, honestly expressed in a media publication and grounded upon a sufficient factual basis, may reasonably be thought to carry an additional imputation which may not be so grounded, the defendant should not ordinarily be held liable for that imputation unless it was maliciously advanced.
(b) As to the underhanded concealment meaning, the Judge was right to conclude that the real sting of the mistaken reference to the £25,000 payment was that the profit had been made with the taxpayer’s help and not disgorged, and right to conclude that there was nothing left in that part of the claim.
An interesting application of the Jameel jurisdiction, with a clear analysis of its role in modern defamation law.
On 23 November 2011 the Supreme Court dismissed an application by the Claimant for permission to appeal.
Carter-Ruck for the Appellant; Taylor Wessing for the Respondent
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