Full case report

Sube v News Group Newspapers Ltd & Express Newspapers

Reference [2018] EWHC 1234(QB)
Court High Court of Justice, Queen's Bench Division

Judge Mr Justice Warby

Date of Judgment 24 May 2018


Summary

Defamation – Meaning – Preliminary Issue –  Serious Harm – s.1 Defamation Act 2013 – Data Protection Act 1998 – Equality Act 2010 – Harassment – Striking Out – Amendment


Facts

The Claimants (Cs) were a married couple with 8 children who were French and black. In 2016, they were in dispute with Luton Council about the adequacy of the housing which the Council had offered the family. Following a local newspaper article about the matter, there was extensive national newspaper coverage some of which was critical of the Cs including for allegedly rejecting a five bedroomed house offered by the Council as too small. The two Defendants had published a number of articles about the Cs in their respective newspapers and online – The Sun (D1) and the Express and the Daily Star (D2).

Readers posted comments (“Posts”) in the comment sections of the newspaper websites (“Comment Posts”) and on third party websites (“Third Party Posts”) some of which were highly offensive.

The Cs issued proceedings in 2017  for libel and harassment. They sought to amend to complain of further articles, that the reader comments were harassment, and that the publications complained of also amounted to malicious falsehoods and/or involved breaches of theEquality Act 2010 (“EA”) and/or the Data Protection Act 1998 (“DPA”).

The Defendants applied for determination of various preliminary issues in the libel claim namely: the meaning of the articles, whether those meanings were fact or comment, and whether they were defamatory. It was also contended that the proposed amendments are  should be refused or struck out. The Cs had a cross application to amend.


Issue

  1. Whether the articles bore the pleaded meanings;
  2. Whether the meanings were defamatory;
  3. Whether any such defamatory meaning was fact or comment; and
  4. Whether the malicious falsehood, DPA and EA claims and a plea of exemplary damages should be struck out.

Held

1. Defamation/Meaning:

(a) The articles complained of did not convey any defamatory factual imputations about the claimants. Although they did contain a number of derogatory comments and opinions about them, none of them considered individually was sufficiently harmful to reputation to satisfy the serious harm requirement laid down by s 1 of the Defamation Act 2013.

(b) Where an opinion is clearly presented as such this mitigates its defamatory impact; the statement is seen for what it is: someone’s evaluation of the behaviour laid out for the readers consideration: Judgment para [42].

(c) It was not defamatory to say someone was unemployed (a matter for sympathy not disapproval): para [38] (1)(vi); nor was there anything inherently discreditable in not paying tax: [38] (1) (v) or working limited hours whilst claiming benefits: [38](4) (iii).

(d)The Court left open for further argument the question of whether a statement that conveys a number of imputations (which individually do not satisfy the s.1 serious harm requirement) can cross the serious harm threshold by relying on the imputations collectively (see further Comment below).

2. Malicious Falsehood: The malicious falsehod claim was struck out as it did not meet the requirements for pleading such a claim; it was a composite plea rather than addressing individual articles individually; the defendands were corporations but Cs failed to identify any individual alleged to be malicious for whom the Ds were said to be vicariously liable and no special damage  was alleged.

3. Equality Act The Equality Act claim was struck out. The High Court had no jurisdiction over such claims and the conduct complained of (statements published to the world at large) fell outside the scope of the EA.

4. Exemplary Damages: The exemplary damages claim was struck out as the necessary elements to make good a case in exemplary damages were not pleaded

5.Data Protection: The DPA claim was stayed for the time being under s.32(4) DPA but the application to strike out it out dismissed.

6. Harassment/Amendment: Permission to amend the harassment claim to include the online posts was granted


Comment

At paragraph 43, the Court left open the question of whether the meanings held that articles conveyed are harmful enough collectively to satisfy the serious harm requirement, despite the Court’s conclusions on their individual effect as being below the serious harm requirement.  (“the Collective Issue”)

At the hand down of the judgment, the Claimants indicated that they wished to argue the Collective Issue. The parties have consented to this issue being determined without a further oral hearing. It was ordered that the Claimants were to file submissions on the Collective Issue by 31st May 2018; the Defendants to respond by 7th June 2018 and the Claimants to file submissions in reply on or before 11th June 2018. The Court will determine the Collective Issue on paper having considered written submissions.

In addition to the substantive findings on meaning, other aspects of this Judgment that maybe of interest include:

  •     The Court accepted that the need to find lawyers to work on a CFA justifies some delay in commencing an action: [12];
  •     Observations on pleading by Annexes in libel cases & warning against this approach: [34]-[36];
  •     An analysis of the pleading requirements for an exemplary damages plea: [67]-[68]; and
  •     A clear ruling that the High Court had no jurisdiction over  claims under the Equality Act 2010 and the conduct complained of (statements published to the world at large) fell outside the scope of the EA (applying as part of the ratio in this case obiter dictum from Trimingham v Associated Newspapers [2012] EWHC 1296 (QB)): [80] -[82].)

 


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