Reference:  EWHC 601 (QB)
Court: High Court, Queen's Bench Division
Judge: Johnson J
Date of judgment: 16 Mar 2021
Summary: Defamation - Meaning - Ambiguity - Extraneous Evidence - General Knowledge
Download: Download this judgment
Appearances: Christina Michalos KC - Leading Counsel (Defendant)
Instructing Solicitors: Reach plc
The Claimant, known as a royal commentator, brought libel proceedings in respect of an article published on 19 November 2019 in The Mirror and online titled A glimpse into the sordid world of entitled elite. The article made reference to an interview given by Prince Andrew on Newsnight about his relationship with Jeffrey Epstein and contained the following words:
“Then, remarkably, Lady Colin Campbell left us all open-mouthed on Monday when she appeared on Breakfast TV to defend Epstein’s right to rape children. “He was procuring 14-year-old prostitutes,” she said. “They were not minors, they were prostitutes, there is a difference.”
Both parties accepted that there was ambiguity in the wording “appeared on Breakfast TV to defend.” because “to defend” could, in this context, either be an infinitive of purposive or an infinitive governed by the verb “appeared“.
On the trial of preliminary issues as to the meaning of the words and whether it contained allegations of fact or opinion, the Claimant submitted the words were factual and meant “the Claimant had appeared on national television for the specific purpose of defending Jeffrey Epstein’s right to rape children and had done so.” The Defendant submitted the words meant “On Monday 18th November 2019 on Breakfast Television, the Claimant appeared to defend Jeffrey Epstein’s right to rape children when she drew a remarkable and untenable distinction between procuring 14 year old prostitutes and procuring minors for sexual intercourse.” or alternatively “During the course of an appearance on Breakfast Television on Monday 18th November 2019, the Claimant seemed to defend Jeffery Epstein’s right to rape children when she drew a remarkable and untenable distinction between procuring 14-year-old prostitutes and procuring minors for sexual intercourse.” The Defendant contended the statement was one of opinion.
There was also an issue as to whether the Court should watch the relevant extract of the Breakfast Television broadcast referred to in relation to issues of general knowledge, possible inneundo (subject to findings on meaning as pleaded) and general case management. The Defendant relied on McAlpine v Bercow  EWHC 1342 (QB) at -:
“ There may be an issue between the parties whether the circumstances of a publication amount to extrinsic facts, which have to be proved as such to support an innuendo, or whether they are general knowledge, which can be relied on in support of its natural and ordinary meaning.”
The issues for decision were:
- The natural and ordinary meaning of the words, including resolution of the ambiguity.
- Whether the statement was one of fact and opinon.
- Whether the Court should watch the short extract of the broadcast referred to.
1.It was held that the words complained of:
(1) assert as fact: “Lady Colin Campbell appeared on a breakfast television programme. She did so to defend the rape of children by Epstein. Her defence was that the children had been 14-year-old prostitutes rather than minors.”
(2) express the opinion: “This is a shocking thing to say. Her comments are an exemplar of the sordid world of the entitled elite.“
2. It was noted that the Court would often read disputed material de bene esse (provisionally) without having ruled on its admissibility which could be pragmatic, save time and costs and be helpful in the resolution of the question of admissibility. However, the Court declined to watch the programme extract or read the transcript on the basis that there was a risk that reading the material might make it more difficult for the Judge to determine the meaning of the words in the way that is required by the authorities. This would risk distorting, rather than assisting, the process of determining the correct meaning of the words. There was no evidence that the detailed content of the programme was a matter of general knowledge at the time of publication of the article, nor was there evidence adduced as to the intersection between the populations that (1) viewed the programme, and (2) read the article.
For the most part, a straightforward meaning and fact/opinion application in which the Court followed the guidelines set out in Koutsogiannis v Random House Group Ltd  EWHC 48 (QB). The Defendant succeeded in removing from the meaning the Claimant’s wording that she had appeared on television “for the specific purpose of” defending Epstein. There was an order for costs in the case in respect of the application for a preliminary issue and the trial of the preliminary issue. This accords with Nicklin J’s observations in Sharif v Associated  EWHC 343 (QB) at para 44 where Nicklin J said:
“I do not know ultimately who is going to be successful in this litigation at any trial. Even if it were possible to detect a clear ‘winner’ on the issue of meaning in this case, there is still a potential unfairness by making what is, in effect, an issue-based costs order at this stage. Although that party might have ‘lost’ the meaning issue, the party may yet ultimately ‘win’ at trial. In the ordinary course, therefore, the costs of determination of the preliminary issue of meaning should follow the ultimate event; the result of the action.”
Costs in the case on meaning applications is now likely to be the standard order, absent exceptional circumstances.