Full case report

McEvoy v Michael

Reference [2014] EWHC 701 (QB)
Court High Court (QBD)

Judge His Honour Judge Keyser QC

Date of Judgment 18 Mar 2014


Summary

Defamation- preliminary ruling- meaning- comment- publisher- political criticism- picture


Facts

C was a Plaid Cymru and former Labour member Cardiff Council. D was a Labour local politician in the same ward. There had been a history of personal antagonism between the two politicians for at least the last ten years.

C alleged he had been defamed by statements and a picture printed in two newsletters produced by D’s Labour Party branch: Issue 6 and Issue 7.  A trial on the preliminary issues of 1) responsibility for publication, 2) meaning, and 3) whether the allegations were fact or comment, was ordered. Issue 6, headlined “Snouts in the Trough” alleged, among other things (see [7]-[10] for full list) that:

(i) Plaid Cymru councillors, including C, had claimed more in allowances than their predecessors, after having run a highly personal and negative campaign based on the use of such allowances.

(ii) C had enjoyed “jollies” abroad and had “raked in” thousands of pounds renting two properties, including one to the very Council of which he was Deputy Leader.

(iii) C was a “SOCIAL LANDLORD AND A HYPOCRITE”.

(iv) C had claimed childcare allowance on top of his “huge earnings” as councillor.

The article was accompanied by a photograph that portrayed C as the character “Del Boy” Trotter from Only Fools and Horses, with the caption “This time next year we’ll be millionaires Rodders!

Issue 7 contained, among other things (see [11]-[12] for full list), allegations that Plaid councillors had ensured that (nearly) every member of the local Fairwater PACT panel (Police and Communities Together panel) was a Plaid Cymru member or supporter.

Both issues contained a Promotion Statement in accordance with electoral legislation in the terms that they had been printed and promoted by D on behalf of the Fairwater Labour Party. D argued that he was not responsible for publication.


Issue

1. Whether D should be considered a publisher of the newsletters.

2. Whether the words and pictures complained of in Issue 6 and the words complained of in Issue 7 bore a defamatory meaning.

3. Whether the allegations were fact or comment (decided with Issue 2).


Held

1.    D was a publisher of the newsletters:

HHJ Keyser QC was, if necessary, prepared to hold that the Promotion Statement was itself a sufficient assumption of responsibility , but in any event D was branch Chairman of the party on whose behalf the leaflets were written and had been fully involved in the branch’s activities and played an active part of the approval process by confirming approval.

2.     (a)  The words complained of in Issue 6 were defamatory of C:

The Judge analysed each allegation in detail from [56]-[92]. Although his findings were fact specific, the Judge made the following general observations:

(i) The natural and ordinary meaning of the words complained of was an imputation of hypocrisy on C’s behalf.

(ii) There was, however, no imputation of fact to the effect that C had committed any wrongful act. For instance, the Judge regarded the use of the word “jollies” as a pejorative expression.

(iii) The various criticisms and pejorative expressions used to describe C throughout Issue 6 constituted comment.

(iv)  Expressing criticism of someone was not in itself defamatory. The accusations of hypocrisy, however, were clearly defamatory of C.

(b)  The picture and accompanying words were not defamatory.

It was necessary to consider what features of Del Trotter were being used for comparison with C.

The Judge found that the meaning of the picture was that:

i) C was a money-loving and money-seeking entrepreneur. This may be a criticism, but it was not defamatory.

ii) C had received “free child care”. This was an imputation of fact and was not defamatory.

iii) By virtue of context, (i) and (ii) carried with them an implicit accusation of hypocrisy. This was a defamatory comment.

iv)  C was prone to unrealistic fantasies and improbable business ideas. This was undoubtedly a criticism, but it was not defamatory. Allegations of lack of realism and lack of judgment were the stuff of political disagreement.

The picture and the words, therefore, were not properly taken to mean that C was dishonest.

(c)  The words complained of in Issue 7 were not defamatory of C.

The judge agreed that the passage stating that nearly every member of the local PACT Panel was a Plaid Cymru member or supporter was an imputation of fact but that it was not defamatory as it contained no allegation of manipulation or any other improper conduct.

When read as a whole, the passage was highly critical but did not suggest that what was happening was improper. It was within the bounds of robust political criticism.


Comment

This decision provides a useful example of the court’s robust approach to determining what is defamatory, and what is comment as opposed to fact, in a political context. The Courts will apply a high threshold and will be slow to find that a criticism constitutes an imputation of fact, rather than a comment – in which context a defence of honest comment/opinion may then be deployed. An article may be unremittingly hostile and personal, to an extent many might find distasteful, without being defamatory. It was the presence of accusations of hypocrisy, as oppose to strong criticisms, which formed the basis of the Judge’s conclusions that Issue 6 was defamatory.

As the European Court of Human Rights has often stressed, the limits of acceptable criticism are wider as regards a politician than as regards a private individual (Lindon, Otchakovsky-Laurens and July v France (2008) 46 EHHR 35 at [56]). Political invective often spills over into the personal sphere, such are the hazards, according to Strasbourg, of politics and the free debate of ideas, which are the guarantees of a democratic society (Lopes Gomes Da Silva v Portugal (2002) 34 EHRR 56).


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Instructing Solicitors

Glamorgan Law LLP for the Claimant, Hutton's Solicitors for the Defendant