Full case report

Lewis v Commissioner of Police for the Metropolis

Reference [2011] EWHC 781 (QB)
Court Queen's Bench Division

Judge Tugendhat J

Date of Judgment 31 Mar 2011


Summary

Defamation – Libel – Mode of trial – Senior Courts Act s.69 – Meaning – Amendment – Qualified privilege – Malice – Abuse


Facts

C was a solicitor who acted for Gordon Taylor, the head of the Professional Footballers’ Association, in his claim against News Group Newspapers for phone hacking.  During the litigation an application was made for non-party disclosure against the Metropolitan Police. In September 2009, when giving evidence to the Parliamentary Select Committee on Culture, Media and Sport, C described how, whilst waiting for the application to come on, a police officer called DI Maberly (who attended court on behalf of the Metropolitan Police) “mentioned the number of people whose phones had been hacked . . . (he) said that there was evidence about, or they had found there were something like 6,000 people who were involved. It was not clear to me whether that was 6,000 phones which had been hacked or 6,000 people including the people who had left messages.”

In November 2009 the PCC asked the MPS about the true number of victims of phone hacking.  In doing so, the PCC mentioned the evidence about the figure of 6,000.  In reply, the MPS published the words complained of, namely that DI Maberly had been “wrongly quoted”. C’s case is that those words meant that he had lied to the Parliamentary Select Committee about what DI Maberly had said to him. Having received this communication from the MPS, Lady Buscombe, acting in her capacity as the PCC chair, had proceeded to state during a speech to the Society of Editors Annual Conference in November 2009 that, on C’s case, he had misled the Select Committee by lying to it.  C sued the MPS, Lady Buscombe and the PCC.  The case against the latter two defendants settled in November 2010, with the payment to C of £20,000 in damages .

The MPS defended C’s claim for further compensation on the basis that the words complained of did not accuse him of dishonesty; to the extent that they did bear any defamatory meaning, they were true; and that they were published on an occasion of qualified privilege without malice.


Issue

(1) Whether the Judge should determine the meaning of the words complained of as a preliminary issue;

(2) If not, whether the words were capable of bearing C’s pleaded meaning, or any meaning defamatory of him;

(3) Whether C should be allowed to amend his Particulars of Claim to introduce further alleged republications for which he had already received damages;

(4) Whether the defence of qualified privilege was bound to succeed;

(5) Whether C should be allowed to introduce a new case on malice so as to allege dishonesty against DI Maberly and other senior investigating officers; and

(6) Whether the claim was an abuse of the process.


Held

Dismissing D’s applications for summary judgment and strike out, allowing C certain amendments but refusing others:

(1) Although C had not applied in time for trial by jury, there was a strong argument for that mode of trial, because D was a public authority. The fact the trial might be held with a jury meant that, although it was open to the Court to decide meaning as a preliminary issue, it was not appropriate to do so in this case.

(2) The words complained of were capable of bearing the meaning complained of.

(3) Limited amendments to the Particulars of Claim would be allowed.

(4) Summary judgment  on qualified privilege was refused.

(5) The application to amend the Reply was refused in so far as it was contested, and allegations of dishonesty against senior investigating officers were ruled out.

(6) The claim was not an abuse of process.


Comment

The case raises two issues which the Judge described as “novel”.

The first was the application for a preliminary determination of meainng by Judge alone, in circumstances where mode of trial had yet to be decided and trial with judge and jury  was a possibility. The Judge held that it was open to him to determine meaning pursuant to s.69(4) of the Senior Courts Act 1981, and that there were significant case management benefits to be obtained from doing so. However, since trial by jury was likely (D being a public authority) and because of the difficulty of reconciling a decision on meaning by judge alone with a trial of other issues with a jury, it was not in the interests of justice for the issue of meaning to be tried by Judge alone.

The second novel issue was the contention by C that he was entitled to call evidence of witnesses to state the meaning in which they understood the words complained of, where an innuendo meaning was relied on. The Judge ruled in C’s favour, relying on the rarely cited case of Garbett v Hazel Wtason & Viney [1943] 2 All ER 359.


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Instructing Solicitors

Taylor Hampton for the Claimant. Weightmans for the Defendant