Harcombe / Kendrick preliminary trial judgment

Public interest defence dismissed in statins case

Mr Justice Nicklin has handed down judgment on the preliminary issues that were tried between 3 and 11 July last year in Zoe Harcombe and Dr Malcolm Kendrick’s libel actions against the Mail on Sunday.

Ms Harcombe and Dr Kendrick are suing over a series of articles, the main one of which, published in the newspaper’s Health, Wealth & Holidays Section in March 2019, was headed “The science is unequivocal: statins DO protect you from heart attacks. But as this devastating investigation reveals, thousands refused them because of the…Deadly propaganda of the STATIN DENIERS”. The main article also contained a banner headline which stated: “It’s worse than the MMR scare”.

The Claimants were prominently identified as two of the alleged “statin deniers”. The Defendants are Associated Newspapers, the publisher of the newspaper, and Barney Calman, the newspaper’s Health Editor, who wrote the articles.

Ms Harcombe and Dr Kendrick commenced proceedings in February 2020. In February 2022 Mr Justice Nicklin directed that there should be a preliminary trial of the following issues:

(i) the Defendants’ section 4 public interest defence;

(ii) the Defendants’ statutory privilege defences in relation to certain passages in the articles under s.15 of the Defamation Act 1996 (reporting privilege) and s.6 (5) of the Defamation Act 2103 (privilege for a report of a peer-reviewed scientific article), which in turn gave rise to issues for the determination of meaning in the light of the Court of Appeal’s decision in Curistan v Times Newspapers Ltd [2009] QB 231;

(iii) the natural and ordinary and – in respect of one of the online articles – innuendo meaning of the publications;

(iv) fact or opinion; and

(v) depending on the ruling on meaning, whether Mr Calman held any defamatory opinions conveyed by the articles for the purposes of s.3(5) of the Defamation Act 2013 (honest opinion defence).

The issues that were left over to be tried afterwards, following the outcome of the preliminary trial, were serious harm, the Defendants’ truth and honest opinion defences, and damages and other remedies (if any).

By his judgment – which spans 562 paragraphs and decides some novel points of defamation law – Mr Justice Nicklin has determined these preliminary issues in the following way:

(1) The Defendants’ s.4 public interest defence failed and was dismissed in respect of all publications.

(2) The statutory qualified privilege defence under s.15 of the Defamation Act 1996 in relation to a statement given to the newspaper by Matt Hancock MP as Health Secretary failed and was dismissed for all relevant publications.

(3) The statutory qualified privilege defence under s.6(5) of the Defamation Act 2013 in relation to the Defendants’ reporting of a scientific paper published in the BMJ (British Medical Journal) known as “the LSHTM Paper” was generally upheld.

(4) The articles bore natural and ordinary meanings and in one case an innuendo meaning which imputed to the Claimants – in the case of the main print article – that: (a) they had each made false public claims about statins knowing them to be false; (b) there were strong grounds to suspect that they had made these knowingly false statements motivated by the hope that s/he would benefit financially or obtain enhanced status from doing so; (c) the direct effect of the publication of these knowingly false statements was (i) to cause a very large number of people not to take prescribed statin medication; and (ii) thereby to expose them to a serious risk of a heart attack or stroke causing illness, disability or death; and (d) in consequence, they were rightly to be condemned as pernicious liars for whom there was a special place in hell, whose lies, deadly propaganda, insidious fake news, scare stories, and crackpot conspiracy theories had recklessly caused a very large number of people – like a patient identified in the articles as Colin – for whom the proven benefits of taking statins were demonstrated by indisputable scientific evidence, to stop taking them risking needless deaths and causing harm on a scale that was worse than the infamous MMR vaccine scandal. (Needless to say, the Claimants maintain that these allegations about them made in the Defendants’ articles are entirely false.)

(5) Elements (a) to (c) of this meaning consisted of imputations of defamatory fact, while (d) was a defamatory opinion.

(6) Mr Calman did not hold the opinion that the Court had found the publications to bear for the purposes of s.3(5) of the Defamation Act 2013.

The judge also observed that, in consequence of his findings, the Defendants’ defences of truth and honest opinion as advanced in the Defence could not be maintained. Further case management directions would be required once the parties had had an opportunity to reflect on the contents of the judgment.

Adrienne Page KC and Godwin Busuttil of 5RB have acted for the Claimants throughout the case, including at last July’s preliminary trial, instructed by Carter-Ruck.

A 5RB case report may be found here.