N-word text appeal dismissed

Court of Appeal judgment in Rufus v Elliott

The bid by former professional footballer and Kick It Out ambassador Paul Elliott to have the libel claim against him by fellow former professional Richard Rufus struck out by the Court of Appeal has failed. Mr Rufus is suing Mr Elliott over the latter’s resignation statement when he left Kick It Out, which Mr Rufus complains implied he acted disloyally by leaking to the Press a text from Mr Elliott in which Mr Elliott used the word “nigger”. In fact Mr Rufus denies disclosing the text.

At first instance Dingemans J found that the press release was capable of being defamatory because the act of disclosing it imputed to Mr Rufus was arguably wrong and disloyal. Mr Elliott appealed arguing that someone’s conduct cannot be considered reprehensibly disloyal when it led to the public exposure of wrongdoing by another. He also argued that there is a necessary link between what is defamatory and what is (un)lawful. The Court of Appeal rejected Mr Elliott’s arguments, expressing agreement with Sir Stephen Sedley who when he turned down permission to appeal on the papers observed that the words of the press release in their context were capable of imputing disloyalty or untrustworthiness to the Claimant. Sir Stephen had said:

“One can test it by asking whether people would now think worse of the claimant had the allegation been true. It is by no means certain that the answer would be no. The fact that such indiscretions are regularly leaked (or sold) to the media does not mean that to be a source is morally inconsequential. It may be as lofty an act as the D now submits or as base an act as C contends. It’s for a court to say.”

Unless Mr Elliott now obtains a stay in order to take this case to the Supreme Court there is likely to be a High Court trial later this year.

5RB‘s Jonathan Barnes is acting for the successful respondent, Richard Rufus, instructed by Simon Smith.

A 5RB case report on this Court of Appeal decision can be found here.