Full case report
Yeo MP v Times Newspapers Ltd
Reference  EWHC 2853 (QB)
Court High Court (Queen's Bench Division)
Judge Warby J
Date of Judgment 20 Aug 2014
Libel – jury trial – s11 Defamation Act 2013 – s69(3) Senior Courts Act 1981 – discretion – meaning – relief from sanctions
The Claimant (C) was the Conservative MP for South Suffolk. His Parliamentary Select Committee roles included chairing the Environmental Audit Committee from 2005 and, from 2010 and at the times relevant to this claim, being the Chairman of the House of Commons Energy and Climate Change Select Committee (“ECCSC”). The Defendant (D) was the publisher of the Times and the Sunday Times print and online editions.
On 21 May 2013, two members of D’s Insight team met and covertly filmed C over lunch. They posed as representatives for a solar technology developer in the Far East and had arranged to discuss an opportunity for C to provide consultancy work with an extremely generous remuneration package. The resulting articles appeared in the 9 June 2013 edition of the Sunday Times. The first appeared on the front page and was headed “Top Tory in new Lobbygate row” and there was a sub-headline: “MP coached client before committee grilling” (“the Front Page Article”). The second appeared inside and was headed “I told him in advance what to say. Ha-ha” and had a sub-headline “The chairman of a Commons committee has boasted of how he can promote businesses in which he has an interest” (“the Inside Article”). A further article appeared in the issue of the Sunday Times for 23 June headed “Lobbyist wrote peer’s speech” (“the 23 June Article”). It did not refer to C by name but did contain a paragraph referring to an investigation by Parliamentary authorities of “three Lords and a select committee chairman… after the Sunday times revealed that they were selling themselves as parliamentary advocates for paying clients”.
There were two main applications at the hearing, the first Case Management Conference in the case. The first was an application by D for trial with a Jury. This fell to be decided under the law as recently amended by s 11 of the Defamation Act 2013 (“the 2013 Act”), which amended s69 of the Senior Courts Act 1981 (“the 1981 Act”). The Judge considered the pre 2013 Act law, including the decision in Rothermere v Times Newspapers Ltd  1 WLR 448, 453 and Aitken v Preston  EMLR 415.
The second principal application was by C who applied, in the event that D’s application for trial with a Jury was rejected, for the determination of what the defamatory meanings were conveyed by the words of which he complained. C also sought a ruling on whether the words complained of were fact or comment.
C alleged that the Front page and Inside Articles meant that:
“in breach of the rules of the House of Commons, C was prepared to act, and had offered himself as willing to act, as a paid Parliamentary advocate who would:
(a) push for new laws to benefit the business of a client for a fee of £7.000 a day; and
(b) approach Ministers, civil servants and other MPs to promote a client’s private agenda in return for cash.”
The meaning which D was prepared to justify in respect of the Front Page and Inside Articles was as follows:
“at a lunch meeting on 2 May 2013 C had to his discredit:
(a) boasted that he had privately told a witness for a commercial group in which he is a paid director and shareholder what the witness should say in evidence to his Select Committee and/or
(b) made a sales pitch to consultants seeking to hire him to lobby in a way which was incompatible with his position as an MP and Chairman of the ECCSC which gave reasonable grounds to suspect (alternatively to investigate) that he was willing to lobby ministers, civil servants and MPs in a way which would breach the House of Commons prohibition on paid advocacy.”
The meaning which D sought to defend as fair comment was to the same effect save that it included the comment on the allegations in D’s meaning that:
“C’s conduct at the lunch meeting showed a scandalous willingness to use his position in Parliament to further his own financial and business interests in preference to the public interest.”
C’s case on the 23 June article was that it meant that:
“in breach of the rules of the House of Commons he was selling himself as a Parliamentary advocate for paying clients.”
This was advanced as a natural and ordinary meaning or alternatively one that arose in the context of or by way of true innuendo based on the Front Page and Inside Articles. D did not admit that the article referred to C, but alternatively sought to justify the meaning that that:
“there were reasonable grounds to suspect (alternatively to investigate whether C had offered to act as a Parliamentary advocate for a paying client in a way that breached Parliamentary standards.”
There was a further subsidiary application for relief from sanctions in respect of failure to seek a notice of funding.
(1) Should the trial of C’s claim be with a jury;
(2) What was the meaning of the words complained of; and
(3) Should C be granted relief from sanctions?
Refusing D’s application for trial with a jury, determining the meaning of the words complained of, and granting C relief from sanctions.
(1) The amendment to s69(1) of the 1981 Act reversed the starting point for actions for claims for libel or slander. Such actions are now subject to the general rule contained in s69(3) of the 1981 Act that an action “shall be tried without a jury unless a court in its discretion orders it to be tried with a jury.”
The amendment should be treated as affecting the considerations taken into account by the court in the exercise of its discretion to this extent: a principle identified in the pre-amendment authorities cannot hold sway after the amendment in as much as it rests on the existence of a constitutional right to trial by jury, or a presumption in favour of such a mode of trial. This is what the reasoning in Rothermere and Aitken was largely based on. Parliament no longer regards jury trial as a right of “the highest importance” in defamation cases; it is no longer a right at all. If the case were to concern “a prominent figure in national life” the true criterion for having a jury trial would be whether there were in the particular case grounds for concern that a judge might show involuntary bias towards one or other of the parties on grounds of their status or rank and that a judge might not appear to be as impartial as a jury. Such cases will be rare.
It was not appropriate to allow the thinking of the court on meaning to inform the decision about whether to grant a jury trial. The subject matter of the case, the conduct of C as an MP, and C’s roles in public life were not to be regarded as inherently important factors in favour of a trial by jury. In order to displace the presumption of non-jury trial it is necessary not only to identify specific considerations that arise in the case but also to examine whether these make jury trial more appropriate in that case than trial without one. Although C had a prominent position, there were no grounds for giving substantial weight to the consideration of the enhanced impartiality which might arise from a decision being taken by members of the public.
The judge also identified the advantages relating to the availability of a reasoned judgment, to proportionality, and to case management as factors which pointed strongly in favour of an order for trial without a jury.
(2) Taking as his starting point the general features of the article and the impact these were likely to have on how the words used strike the mind of the ordinary reader, the Judge placed himself in the position of a reader of the Sunday Times, a serious-minded weekly newspaper, reading lengthy articles prominently positioned in the news section of the paper on a serious topic of evident political and public importance.
The Front Page and Inside articles did contain defamatory comment or opinion, both explicit or implicit; the facts on which the comment was based were amply indicated within the articles. Together they bore the defamatory meanings that C:
“(1) was prepared to act, and had offered himself as willing to act in a way that was in breach of the Code of Conduct of the House of Commons by acting as a paid Parliamentary advocate who would: a. push for new laws to benefit the business of a client for a fee of £7,000 a day; and b. approach Ministers, civil servants and other MPs to promote a client’s private agenda in return for cash;
(2) by behaving in the manner referred to in the articles had acted scandalously, and shown willing to abuse his position in Parliament to further his own financial and business interests in preference to the public interest.”
Element (1) was factual. Element (2) consisted entirely of comment.
To such readers of the 23 June Article as had read and remembered the 9 June articles, the 23 June Article would convey a defamatory factual meaning similar to that of the 9 June articles, namely that C:
“had been selling himself as a Parliamentary advocate for paying clients and had thereby offered to act in a way that was in breach of the rules of the House of Commons.”
Although they featured changes reflecting C’s complaint, none of the online versions of the three articles bore meanings different to those borne by the print versions.
(3) The approach to be taken to relief from sanctions was that recently clarified by the Court of Appeal in Denton v TH White Ltd  EWCA Civ 906. Following the three stage approach identified by Vos LJ and Lord Dyson MR, the breach was not a serious or practically significant one, it was the result of an error and was not a deliberate decision which was rectified once noticed, and its impact on the efficient and proportionate conduct of the litigation was negligible.
This is the first decision on the abolition of the presumption in favour of trial by jury. It explains the effect of the changes introduced by s11 of the 2013 Act, which amends s69 of the 1981 Act, leaving the exercise of the discretion under s69(3) as the only remaining route to a jury trial. It makes clear that since there is no longer a right to trial by jury, the elements of the reasoning in the authorities dating from before the 2013 Act which were based on the presumption in favour of that right no longer apply.
In practice, the scope for a jury trial has been reduced almost to vanishing point. The judge identified the category of cases in which it would be desirable to introduce a jury as those where it would be done to avoid any perception of “involuntary bias”, although he declined to define when that might be. The example given, of a libel claim brought by a judge, indicates how remote a possibility a libel jury trial now is.
Carter-Ruck for C; Reynolds Porter Chamberlain LLP for D.
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.