Andrew Bruce & Anor v High Speed Two (HS2) Ltd

This case is about a one-hour BBC Panorama documentary programme broadcast on 16^th September 2024 (“the Programme”). The title of the Programme was ‘HS2: The Railway that Blew Millions’. It was a journalistic investigation into the course of the major, and controversial, High Speed 2 railway infrastructure project.

That project, as is well known, had originally been conceived as providing a new fast rail link between London, Birmingham, Manchester and Leeds, and improving the connectivity of the north of England and its potential thereby for economic growth (‘levelling up’) – and as increasing the capacity of the railway network more generally. However in the autumn of 2023 the then Prime Minister, Mr Rishi Sunak, announced the project’s cancellation beyond the London-Birmingham link, amid concerns about cost. The Programme investigated the project’s history leading to that outcome and beyond. Its format was journalist/presenter-led, a combination of voiceover and extracts from one-to-one interviews with individual ‘witnesses’ who had at various times had a range of roles in relation to the project, intercut with contextual footage.

Delivery of the project has at all relevant times been the responsibility of HS2 Ltd, the Defendant in this case. HS2 Ltd is a company set up by the government in 2009 to have overall responsibility for developing and promoting the project. It is a non-departmental public body sponsored by the Department for Transport and funded by grant-in-aid from the government.

The Claimants, Mr Bruce and Mr Thornton, are former employees of HS2 Ltd. They were among the ‘witnesses’ interviewed by the Programme’s presenter. Excerpts from their interviews are featured in the Programme.

Mr Bruce introduces himself in one of those excerpts as having been recruited by HS2 Ltd to be its Head of Planning and Performance in its Land and Property Department. He says: ‘My job description was to plan to buy all the land for Phase One. … I was very comfortable with planning and executing large-scale infrastructure projects. Most of my career has been with the Army. I served in Iraq. I was in charge of building all the border forts along the Iraqi border.’ Mr Bruce’s background is as a senior chartered civil engineer and chartered manager, holding fellowships in the Chartered Management Institute, the Association of Project Managers and the Royal Geographical Society, and membership of the Institution of Royal Engineers. He has over 35 years’ experience in engineering and logistics. He completed two tours of duty as a Chief Engineer in the armed forces in Afghanistan, and a further tour in Iraq as head of infrastructure and logistics, overseeing large-scale infrastructure projects there. He worked for HS2 Ltd between November 2015 and May 2016. He has since worked as a construction manager at Amazon UK.

Mr Thornton is shortly afterwards introduced in the Programme as having been Mr Bruce’s boss at HS2 Ltd, joining a little before him in 2015. He introduces himself by saying: ‘I am a Chartered Surveyor. I was employed by HS2 to purchase all the land, the property required by the project, from London to Manchester and Birmingham.’ Mr Thornton is a fellow of the Royal Institution of Chartered Surveyors with over 30 years’ experience in land acquisition and development, and a chartered member of the Chartered Institute of Building. He worked for many years for Tesco, including in senior roles including running an extensive land acquisition and development programme. He left HS2 Ltd in December 2015.

The Programme includes excerpts from their interviews in which Mr Bruce and Mr Thornton each gives an account of their employment with HS2 Ltd, and the summary termination of their employment, which is strongly critical of the company and of the management of the project. The BBC offered HS2 Ltd a right of reply, and featured some of its responses as read and spoken text in the Programme.

Mr Bruce and Mr Thornton have filed libel claims against HS2 Ltd on account of some of the material in those responses, as featured in the Programme.

The parties agreed there should be a preliminary issues trial to determine:

This judgment records the outcome of that trial.

The legal framework within which defamation preliminary issues are decided is well established, and there is no dispute about it in the present case.

A court must approach the determination of ‘the single natural and ordinary meaning’ of a TV programme by considering the meaning a hypothetical ordinary reasonable viewer would understand it to bear. Clear and comprehensive guidance is given as to how to do that in the judgment of Nicklin J in Koutsogiannis v Random House [2019] EWHC 48 (QB). It sets out at [11] the following key principles distilled from the earlier authorities:

i.

The governing principle is reasonableness.

ii.

The intention of the publisher is irrelevant.

iii.

The hypothetical reasonable [viewer] is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A [viewer] who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt a less derogatory meaning would also be unreasonable: it would be naïve.

iv.

Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.

v.

Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.

vi.

Any meaning that emerges as the produce of some strained, forced, or utterly unreasonable interpretation should be rejected.

vii.

It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.

viii.

The publication must be [viewed] as a whole, and any ‘bane and antidote’ taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic ‘rogues’ gallery’ case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).

ix.

In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.

x.

No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.

xi.

The hypothetical [viewer] is taken to be representative of those who would [view] the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication’s [viewership].

xii.

Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.

xiii.

In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant’s pleaded meaning).

Nicklin J also reviewed the authorities on determining whether a publication contains allegations of fact or expressions of opinion and indicated at [16] of Koutsogiannis that a court will be guided by the following points:

i.

The statement must be recognisable as comment, as distinct from an imputation of fact.

ii.

Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.

iii.

The ultimate question is how the word would strike the ordinary reasonable [viewer]. The subject matter and context of the words may be an important indicator of whether they are fact or opinion.

iv.

Some statements which are, by their nature and appearance, opinion are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment.

v.

…

Where there are several preliminary issues a court is required to determine, the authorities (Triplark v Northwood Hall[2019] EWHC 3494 (QB) at [16]; Barron v Collins[2015] EWHC 1125 (QB) at [20]-[21]) counsel against the dangers of trying to resolve them in too linear or compartmentalised a fashion. A court must bear in mind whether the questions of ‘meaning’ and ‘fact/opinion’ might throw light on each other, such that it would be wrong to tackle them in an order which proves to be a trap of false logic.

Particular issues arise in this connection where the publication in question is a film or TV programme. Nicklin J observed in Zarb-Cousin v Association of British Bookmakers [2018] EWHC 2240 (QB) at [18] that two further important principles apply where a court is determining meaning and fact/opinion in such cases:

a.

First, particular care needs to be adopted when determining the meaning of a television broadcast. An ordinary, reasonable viewer is unlikely, indeed most will be unable, to watch the item more than once. In that respect, television broadcasts are different from newspaper articles where the reader does have at least the opportunity to look back to an earlier part perhaps to remind him or herself as to what a later paragraph is referring to. That principle was made clear and established in Skuse v Granada Television Ltd [1996] EMLR 278, 286 per Sir Thomas Bingham MR. The effect is that the Court must be even more vigilant against over analysis. This is particularly so in the case where the defamatory words are delivered in a manner of seconds at the end of a longer segment of a news broadcast.

b.

Second, the Court must heed the cautionary words of the Court of Appeal in British Chiropractic Association v Singh [2011] WLR 133. In essence, the Court should guard against compartmentalising the process of assessment of meaning and fact or opinion. To do so risks the Court unwittingly stifling a proper assessment of the latter by the former …

Further guidance was given on this point by the Court of Appeal in Millett v Corbyn [2021] EWCA Civ 567 at [18]:

The key principle of law is that the answer to that question [fact or opinion?] must always be one that would be given by the ordinary reasonable reader or – as was in this case – viewer. With a broadcast such as this, this is not a matter of studying the transcript, which cannot tell you how the words are spoken, in what tone, or with what emphasis. It means watching and listening to the interview as a whole, bearing in mind that the ordinary viewer will do so only once. The court should avoid over-elaborate analysis and give weight to its own impression. This approach applies equally to the methodology for deciding meaning, and whether the offending statement is fact or opinion…

Again, Eady J put it this way in Bond v BBC [2009] EWHC 539 (QB) at [9]:

It is important to acknowledge that assessing the meaning(s) of an hour long television programme is to a large extent a matter of impression. Yet it is also necessary to remember that the test is objective, so that one must always have in mind how the reasonable viewer would interpret it. Nonetheless, it is recognised in the authorities that the judge can take into account his or her own subjective reaction as part of the process. Beyond that, one must not be over-analytical, in the sense of subjecting the text to a leisurely or legalistic breakdown: ordinary viewers will not have had that opportunity. The overall flavour of a programme may contribute to an interpretation which would not necessarily be found when subjecting the text to piecemeal analysis. There is a risk that such an exercise will focus on the trees and miss the wood.

The test at common law for whether a (natural and ordinary) meaning is defamatory is well-established: whether it substantially affects in an adverse manner the attitude of other people towards a claimant, or has a tendency to do so. Recent authorities put it in terms of identifying that a claimant has transgressed the common, shared values of our society (Monroe v Hopkins [2017] EWHC 433 QB at [51]). This is not about actual impact, or evidence, at this stage; it is about the meaning of the words themselves and their inherent tendency to damage someone’s reputation by making others think substantially the worse of them. ‘Substantially’ imports a threshold of gravity or seriousness (Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 at [98]).

I adopted the established standard preparatory approach to the determination of defamation preliminary issues (approved by the Court of Appeal in Tinkler v Ferguson [2019] EWCA Civ 819 at [9]). Having been made aware that the case concerned an edition of Panorama, I watched the whole Programme through once, without reading any of the case papers and without even noting who the parties to the proceedings were. I made some notes recording my first impressions.

These included that, by means of a structured montage of excerpts from interviews with a range of ‘witnesses’ – politicians, commentators, decision-makers, people involved in or affected by the project and members of the public – the Programme as a whole raised serious questions about the competence, and in some respects the probity, with which the HS2 project had been planned, part-executed and ultimately radically truncated as part of a financial damage limitation exercise. I noted a number of interlinked themes: (a) the public controversiality of the project at all stages, and the general disappointment of the hopes that the project would be able to deliver the substantial benefits to UK life for which it had been set up, questioning the possible reasons for that; (b) the hugely inflated costs of the project compared to its original budget, raising questions about poor financial management and a lack of transparency and accountability in relation to the project’s finances; and (c) its damaging environmental impact on the countryside in general, and the specific impact on the landowners along the route, with questions raised about whether they had been treated fairly in the project’s acquisition of their land.

I noted in particular that the Programme was bookended by some memorable challenges (including by some well-known figures) that the whole history could be regarded as more than a failure – a public ‘scandal’ (or a ‘Whitehallmorality tale’) into which a public inquiry was due so that important lessons could be learned to avoid similar failures in future large-scale national infrastructure projects. Although the overall tone of the Programme was questioning rather than expressive of concluded judgment, and it provided opportunities for different viewpoints to be heard, it was not neutral. The preponderant tone, and the preponderant content from the interviewees, was critical in one way or another – that is, adverse for a range of different reasons to both the political decision-making processes and to the management of the project at different levels. I understood the Programme’s headline message to be that seriously concerning questions had been raised about the whole project but not (yet) satisfactorily answered; that was not only a matter of unfinished business in relation to accountabilities so far, but a major risk in relation to future projects.

I then immediately afterwards read the case papers in order to identify the parties, the extent to which the Programme had to do with them specifically, the aspects of the Programme in particular complained of by Mr Bruce and Mr Thornton, and what the parties had to say about the preliminary issues to be determined.

On that basis, I was able immediately to identify Mr Bruce and Mr Thornton as interviewees whom I recollected as having featured in the Programme as senior professional appointees of HS2 Ltd who had, on arrival, identified and raised within the organisation substantial concerns about major overspend on the budget. I recollected that both had given an account of their concerns having been dismissed by HS2 Ltd and, worse, that they had been asked to collude in the public presentation of misleading financial information; when they resisted that, each had been summarily dismissed. I recollected an initial impression that the Programme had presented them as being honest whistleblowers who had been badly and unethically treated by HS2 Ltd, and that what they said raised matters of concern which had not been satisfactorily investigated and questions which had not been satisfactorily answered.

I watched the Programme again, reminding myself that both Claimants were briefly excerpted in the opening montage as claiming the problems with the project went beyond bad management to a lack of probity, and that Mr Thornton was also excerpted in the closing montage calling for a public inquiry. I noted the main excerpts from their interviews were shown in a passage around fifteen minutes into the Programme, and lasting about ten to twelve minutes in total. Their accounts were part-dramatised, and interspersed with three quotations from a responsive written statement from HS2 Ltd. I remembered thinking on my first viewing that these quotations felt evasive and unsatisfactory, leaving an impression that the Claimants’ accounts, and the questions raised by those accounts, had not been satisfactorily addressed or answered.

I next read the parties’ skeleton arguments, heard their oral submissions at trial, and reserved judgment. An important part of my doing so was to reflect carefully, in the light of all I had since read, seen and heard, on how far my initial impressions properly fell to be adjusted in order to conclude what an ordinary, reasonable viewer of the Programme, watching it once through, would have understood it to mean in relation to each Claimant.

The Claimants are concerned the Programme had an inherent tendency to make an ordinary, reasonable viewer think substantially the worse of them. Their concerns focus on three elements of the responsive material from HS2 Ltd broadcast in the Programme.

The first follows an extract from an interview with Mr Bruce in which he says that on arrival as an HS2 Ltd employee he was provided with two sets of financial figures. He says he was told the first could be shown externally and used in presentations, and demonstrated the project was on track to be able to acquire all the land it needed within budget and on time. The second set showed the budget as having been hugely exceeded, meaning the land could not in fact be acquired. He describes attending an internal meeting at which he presented the overspend figure and was told by the person running the meeting that if he mentioned that figure he would get a blackboard eraser thrown at him. This is followed in the programme by a quotation from HS2 Ltd’s response: ‘HS2 says it doesn’t recognise these allegations’.

The second follows a passage in which Mr Thornton explains that he too had raised internally his perception that there were big gaps in the numbers, but that the response had been stone-wall silence. He says things came to a head when he was instructed by a senior person to prepare a slide deck using a figure he knew to be badly incorrect. Mr Bruce then explains that the senior person ‘went ballistic’ when he challenged the figures, shouting at Mr Thornton and belittling him, and preparing the slides herself. Mr Thornton says he understood the wrong figures were being advanced in order to secure Royal Assent to the Parliamentary measure required to authorise the purchase of the land. Mr Thornton explains that he raised a grievance procedure about being asked to do something he thought was wrong but was summarily sacked within 24 hours of doing so. Mr Bruce then explains that the first day Mr Thornton’s successor arrived, he instructed the shredding of every copy of a report containing the true figures. He was preparing a presentation setting the true figures out, when he too was summarily dismissed and escorted from the premises. This is followed in the Programme by this passage in voiceover and quoted text:

HS2 Ltd disputes Andrew Bruce’s description of the circumstances of his dismissal and says both he and Doug Thornton had failed their probationary periods. Neither man accepts that there were problems with their performance. HS2 also says their allegations are simply untrue. It says there was “no order to shred copies of the report”. HS2 also says the allegations have been put under intense scrutiny by the National Audit Office which found nothing untoward and the property cost estimate was completely recalculated in 2016 and the NAO found it to be reasonable. Doug Thornton and Andrew Bruce don’t accept the conclusions that HS2 draws from the NAO findings. They want further investigations. So, if there was pressure on the budget, what could that mean for landowners in the path of HS2?...

The third comes after the passage which follows, in which Mr Bruce sets out that these landowners were not in fact being paid a fair price for the acquisition of their land, and he was told that was because to do so would deplete the budget too much, meaning it would become clear that there was not enough money to buy all the land and Royal Assent would be jeopardised. The presenter asks him whether he was saying that ‘because the budgets were fudged and the sort of reality was denied, real people were being offered poor deals knowingly by the state, because the money wasn’t there?’. Mr Bruce confirms that. He is asked ‘That’s a scandal, isn’t it?’. He replies ‘It is a scandal.’ The Programme continues, in voiceover and quoted text, ‘HS2 Ltd says this is false, and that in all cases it seeks “a fair deal for both claimants and the taxpayer” and “many safeguards are in place to support their objective”’. The Programme moves immediately on to an interview with a family of Chiltern farmers, a fifth of whose land was being compulsorily acquired, commenting that they believed their compensation from HS2 was less than it should have been.

The excerpts in bold italic are the basis for the Claimants’ complaints of the Programme. On this basis, the Claimants’ pleaded natural and ordinary meaning of the Programme, in so far as it relates to them, is as follows:

[13.] The Broadcast conveyed the following natural and ordinary and/or inferential defamatory meanings of and concerning the First Claimant:

[13.1] Mr Bruce failed the probationary period of his employment at HS2 Ltd, it is to be inferred, for reasons of professional incompetence and/or misconduct.

[13.2] The following allegations made by the First Claimant about the Defendant are untruths and falsehoods (and carry the implication in each instance the First Claimant has lied about them):

[13.2.1] Senior executives of the Defendant in 2016 knew the figure for the property budget for the HS2 Line it used to obtain Royal Assent was unreliable and would be exceeded but proceeded to promote it anyway;

[13.2.2] Senior executives of the Defendant instructed the First Claimant that true figures for the property costs would not be presented to the Defendant’s board as this risked not getting Royal Assent for the project;

[13.2.3] The First Claimant’s boss had threatened and swore at him for trying to use true figures for the property cost estimates;

[13.2.4] The First Claimant had been asked to shred a report by Deloitte that suggested that the property cost estimates then in use by the company were unreliable, as this was inconvenient for the funding case to be used to get approval for the HS2 Line;

[13.2.5] The Defendant’s executives decided to lie regarding the HS2 Line being on time and on budget and presented figures to Parliament which it knew to be incorrect;

[13.2.6] The Defendant’s executives decided not to pay owners whose properties were subject to compulsory purchase for the HS2 Line what their properties were really worth, instead offering poor compensation, because inflated costs would risk not receiving Royal Assent.

[13.3] The First Claimant failed the probationary period of his employment at HS2 Ltd, it is to be inferred, for reasons of professional incompetence and/or misconduct and, in the circumstances, his allegations against the Defendant are nothing more than the dishonest grievances of a disgruntled former employee.

[14.] The Broadcast conveyed the following natural and ordinary and/or inferential defamatory meanings of and concerning the Second Claimant:

[14.1] The following allegations made by the Second Claimant about the Defendant are untruths and falsehoods (and carry the implication in each instance the Second Claimant has lied about them):

[14.1.1] The Second Claimant had been stonewalled by the Defendant’s senior managers when raised concerns that property cost estimates being used were unreliable and misleading;

[14.1.2] The Second Claimant when making a presentation on property cost estimates to senior figures at the Defendant was pressured and bullied into using figures which were demonstrably incorrect;

[14.1.3] The Defendant deliberately put forward unreliable cost figures to Parliament to get the green light for the project which might otherwise not have been granted had the true numbers been provided;

[14.1.4] The Second Claimant was sacked when he tried to make a whistleblowing grievance about being forced to use figures which were demonstrably incorrect.

[14.2] The Second Claimant failed the probationary period of his employment at HS2 Ltd, it is to be inferred, for reasons of professional incompetence and/or misconduct and, in the circumstances, his allegations against the Defendant are nothing more than the dishonest grievances of a disgruntled former employee.

HS2 Ltd has chosen not to plead a rival ‘single natural and ordinary meaning’ of these passages. Its position is that, taken as a whole, the Programme does not convey any meaning about the Claimants which is defamatory of them at common law.

In submissions on behalf of the Claimants, Mr Bennett KC explained that, by agreeing to co-operate in the making of the Programme, they took on the role of whistleblowers, on the basis they would be so portrayed in the Programme. As such, in a nutshell, they expected to be shown as bringing to public attention ‘the fact that the spiralling costs of the HS2 project were concealed from Parliament and the public. Their case is that they were dismissed from their employment by the Defendant because they confronted their management about this scandal’. However, Mr Bennett KC explained, because of the responsive material from HS2 Ltd, they were in the event portrayed as having been ‘dismissed due to failures on their part (they are said to have ‘failed’ their probationary periods)’ and as ‘lying in regard to what they revealed on Panorama about HS2’.

Mr Bennett KC explains the Claimants fear the Programme would be understood by an ordinary reasonable viewer as having two defamatory meanings in relation to them: (a) that they were liars whose accounts did not contain honest and truthful histories and (b) that they were rightly dismissed for incompetence and ‘because they invented a very serious false allegation’ against HS2 Ltd’s senior management.

As to the ‘lying’ meaning, Mr Bennett KC argues there is no room for a meaning in the Programme that the Claimants might have been mistaken. It is falsity which is alleged against them. He points to the corroborating reference to the NAO having after all supported the figures they had challenged. He points to a later section in which a senior government minister at the time said that Parliament had not been misled. The Claimants fear that viewers would also more generally be influenced by the authoritative voice of the company, framed by the authoritative journalism of the BBC, stating that their accounts were false.

As to the ‘dismissal’ meaning, Mr Bennett KC accepts that the stated fact of a dismissal is not by itself capable of being considered defamatory (Koutsogiannis at [32(iii)]). Any ordinary reasonable viewer would factor in that someone may be dismissed for all sorts of reasons, good and bad. It is any stated or implied reason for the dismissal that can hold a defamatory sting, and Mr Bennett KC points to the implication in this case of the reference to failure of probation: namely that because of their own deficient performance or conduct the Claimants were not of the appropriate professional standard looked for and deserved their dismissal. That meaning is, he says, supported by the necessary implications of the ‘lying’ meaning: if the Claimants had invented serious and false allegations against their colleagues and management, that would in itself suggest misconduct meriting dismissal.

Mr Bennett KC put it to me in all these circumstances that this is a case in which an ordinary reasonable viewer would register that mud was noticeably thrown at the Claimants by HS2 Ltd, and mud sticks. He took me in support of that to some of the cases where the courts considered submissions about defamatory ‘bane and antidote’ and concluded that the latter rarely neutralises the former entirely (including Mark v Associated Newspapers [2002] EMLR 38 at [42] and Jameel v Times Newspapers [2004] EMLR 31 at [14]). The Claimants’ fears, he submits, are supported by the decisions in these cases.

The Claimants in this case have chosen to proceed not against the broadcaster of the Programme but against HS2 Ltd. Their chosen Defendant can be held responsible in a defamation action only for its own (re-)published statements in the Programme. But that is simply a limitation on HS2 Ltd’s potential ultimate liability; there is no dispute in the present case that I must determine the single natural and ordinary meaning of the Programme as a whole, in so far as it relates to the Claimants. Warby J (as he then was) said this, in Economou v De Freitas [2017] EMLR 4 at [17]:

… A media publication will often include some material for which the source bears responsibility and some for which he bears none. … Such additional material is likely to affect the meaning of the publication. The additional meaning may make things worse, in which case the source cannot be blamed; or it may make the meaning less damaging, or even innocent, in which case the claimant must take the meaning as it emerges from the entire publication.

I must accordingly take care not to focus on the matters to which the Claimants object any more than I can be satisfied an ordinary reasonable viewer would absorb them on a single viewing of the Programme. And I am required to find a putative single meaning, one that cannot vary according to the Claimants’ decisions about whom to proceed against. A number of preliminary points arise accordingly.

The first is that, although the Claimants’ pleadings of course focus on what HS2 Ltd said about them in the Programme, and although at the hearing we looked at that in detail with some care and with the assistance of both the relevant excerpts from the Programme and a transcript of those excerpts, my task is not to determine the meaning of isolated excerpts nor of a transcript; it is to determine the meaning of the Programme as an audiovisual entity, experienced as a single event, and as a whole.

As the authorities clearly guide, that is an experience which is received by an ordinary reasonable viewer at a genre-specific and highly impressionistic level. The Programme in the present case is very characteristically a piece of film journalism of precisely the genre that the Panorama branding would lead a viewer to expect and that would frame a viewer’s reception of it. It takes as its subject a serious and topical issue of established public interest and concern, arising in a context of political decision making, the expenditure of large sums of public money, and adverse public impacts at both collective and individual levels. It takes as its premise that the HS2 project has been a story of disappointment, delay, spiralling financial costs, and an overall prospect of benefit falling far short of the expectations with which it had begun. Its theme is an investigation of why that happened, who was responsible, whether they have been held to account and where that leaves the public interest and public expectations of the conduct of any future comparable infrastructure projects. As I noted when I first watched it, the Programme is not neutral about whether something has gone wrong, but it is largely questioning rather than definitive in its conclusions.

In format, the Programme is fast-paced, urgent and dramatic (and in some parts, including those featuring the Claimants, dramatised by way of reconstructions). Although conventionally structured with headlines at the beginning and end, and a developed narrative in between, it is highly composite, constantly intercutting between archive or illustrative footage, interview excerpts from something between a dozen and twenty different witnesses (often introduced with a clapperboard device) many of whom reappear at different stages, dramatic reconstructions and commentary. It is, in other words, while treating analytically and rigorously of important issues, especially agglomerate in the overall impression it gives. An ordinary, reasonable viewer would get a composite impression from this Programme that the combined perspectives of many interesting and relevant witnesses and commentators, together with the objective historical facts, gave a consistent picture that the HS2 project could indeed reasonably be described as something of a public scandal for which the public deserved but had not yet received a proper explanation; those responsible had not been held fully to account, serious issues had been raised which had not been adequately addressed, and substantial questions of public concern about competence, transparency and probity had been raised but not fully answered.

This is the sort of general background against which it falls to consider what impression the ordinary reasonable viewer is given by the Programme about the Claimants in particular. In context, any such viewer would note that the Programme was not in any sense about the Claimants as such. They appear as two together among a crowd of witnesses presented as having something to say worth listening to about what went wrong with HS2 and why, and about accountabilities for that. The Claimants do not dominate the Programme; they are given noticeable but limited airtime, and they are not, in contrast to the well-known political interviewees and commentators, individuals the ordinary viewer would already know or recognise.

This is important context. While of course the Claimants themselves, both as viewers and as defamation litigants, have been intensely focused on how they are presented in the Programme and on the detail of what their former employer said about them in it, this subjective experience of their own is something apart from the present exercise. That is not how an ordinary, reasonable viewer, with no other knowledge of the Claimants, would watch the Programme.

Introduced for the first time, their credentials as senior, experienced and expert professionals are prominently foregrounded by the Programme, including with memorable pictures of Mr Bruce on duty in army uniform in what at a glance would be recognised as overseas theatres of military operation. The relevance and authority of what the Claimants have to say as senior appointees in HS2 Ltd is readily conveyed. They are interviewed in an attentive, respectful manner – encouraging and sympathetic – the presenter/interviewer reinforcing what they say by his body language (for example nodding) and providing them with summaries of their allegations for their endorsement. The similarity of their accounts and the fact that they corroborate each other is striking. And their accounts are brought to life, and made especially impactful, by being illustrated throughout with atmospheric slow-motion dramatic reconstructions: glimpses of documents being prepared or handed over, a blackboard eraser being brandished, meetings, a Deloitte’s report being shredded, and so on.

Taken at its lowest, what the Claimants had to say about the spiralling and out-of-control costs and timetable of the project, and the treatment of landowners, is entirely of a piece with the overall themes of the Programme, said also by many of the other interviewees, and illustrated from time to time with statistical infographics. Taken at its highest, the Claimants make a unique contribution to that narrative with their account of deliberate and strategic lack of transparency about the scale of the budgetary problem, and resort to misleading figures and undervalue land transactions as part of that strategy.

Then the shock, fear and humiliation the Claimants describe over the circumstances and manner of their dismissals are brought vividly to life in a dramatic and atmospheric slow-motion reconstruction. It begins with a hand on a shoulder, the mood set by ominous music. There follows a blurred, shadowy and tense sequence, set in a sterile but threatening office environment, suggesting a powerful and peremptory decision-maker. A faceless security man with arms folded is on standby. An individual is escorted down a bleak back staircase.

This is the scene-setting context for the responsive material from HS2 Ltd which is the focus of the Claimants’ reputational concerns. The contrast between the Programme’s presentation of that material and its presentation of the Claimants is stark, and would make a strong impression as such on the ordinary viewer. The Claimants are presented in person and in an engaging and supportive way – as professionals of standing and integrity giving a straightforward and important first-hand account of budgetary mismanagement and lack of corporate integrity. Their narratives of their experiences, and the ordeal of summary dismissal as the ruthless response to raising their concerns, are brought grippingly to life in dramatised film sequences. By contrast, the HS2 responsive material is literally disembodied, delivered principally in brief, deadpan, voiceover quotation.

The first response complained of (‘HS2 says it doesn’t recognise these allegations’) is illustrated with empty office chairs. The iconography is obvious. This is shortly followed by a voiceover observation that the then Chief Executive had been approached for personal comment but declined to respond.

The second response complained of is delivered in voiceover against a blurred background of different bleak office scenes, with some snippets shown as on-screen superimposed text in (distancing) quotation marks. It is immediately followed by switching back to the footage of the Claimants with emphatic voiceover that they don’t accept HS2 Ltd’s interpretation of what the NAO had said about the figures, and want further investigation.

The third response is delivered by voiceover against footage of aerial film panning over the countryside, again with selective excerpts in on-screen superimposed text in quotation marks. It is preceded by the passage in which the interviewer puts Mr Bruce’s account back to him in summary (‘so, just so I’m clear, what you’re saying is…’ and ‘that’s a scandal, isn’t it?’). It is immediately followed by on-location interview material with the farmer-landowners who reinforce a narrative that they had not been fairly treated.

The overwhelming impression of the Claimants – taking into account and in context what they say, how they are presented, and the delivery of the HS2 Ltd responses – which an ordinary reasonable viewer would receive from all this, is that they had been selected for interview in this Programme because they were serious first-hand participants with something important to say on the key issues of budget management and land acquisition; they said it vividly and authentically; they corroborated each other, and their accounts fitted the pattern of other evidence presented by the Programme; they described in detail corporate victimisation in consequence of performing their professional duties; and the response of HS2 Ltd to all of that was wholly inadequate.

The ordinary reasonable viewer is not naïve. They can read between the lines. A desiccated statement that the company ‘doesn’t recognise these allegations’ would be readily understood in context as a disengaged and conventional evasive formula out of any recognisable proportion to the dramatic (and dramatised) specifics of the account Mr Bruce had just given; it barely engages with them or says anything about them at all. The statement that the Claimants ‘failed their probationary periods’ would easily be understood in context as a conventional circumlocution for a rapid summary dismissal of a whistleblower before protective employment rights had accrued; it is immediately contradicted by the Claimants and no shred of evidence for it is offered. The denial that there had been any order to shred copies of the report is starved of oxygen by the immediately preceding witness interview account, illustrated with a reconstruction of exactly that happening.

I have to bear in mind that ‘the overall flavour of a programme may contribute to an interpretation which would not necessarily be found when subjecting the text to piecemeal analysis. There is a risk that such an exercise will focus on the trees and miss the wood’. HS2 Ltd’s responsive material does use the language of denial and falsity, and failed probation, but that is presented in airily dismissive and generalised terms only. I have to look at not just what is said but how it is presented. An ordinary reasonable viewer of this Programme, taken as a whole, is unlikely to experience this responsive material as being given any real salience or weight; the viewer instead is likely to, and feel encouraged to, pass over it swiftly as a conventional interpolation in the interests of providing formal balance, to regard it with scepticism if registering it at all, and to understand that it is obviously far from a satisfactory last word on the matter. The viewer would not come away with an impression of HS2 Ltd’s having thrown mud at the Claimants with any adhesive quality to it at all. They would instead have formed an impression of HS2 Ltd’s having tried to kick up a bit of dust to obscure the clarity of the impression otherwise given of the Claimants’ insights, integrity and shabby treatment at its hands, and only made itself if anything look worse in the process.

An ordinary reasonable viewer would easily infer from the Programme that the Claimants were featured in the BBC’s flagship investigative journalism vehicle precisely because what they said demanded to be taken seriously and the questions they raised investigated and answered. They would have seen that amply borne out in the way the Programme presented them and their accounts. They would not in context have recognised in the HS2 Ltd responsive material either a picture of the Claimants as disgruntled and unreliable or untruthful witnesses, or an adequate answer to their testimony.

An ordinary reasonable viewer would not, in my view, take from a single viewing of the Programme that the Claimants were untruthful or unworthy of their employment. That would require experiencing HS2 Ltd’s responsive comments as impactful to a degree with which the Programme simply does not endow them, and to fail to see the wood for the trees. It would require a focus on this material not warranted or encouraged by either its immediate context or the context of the Programme as a whole. It would then require a viewing mindset unduly suspicious of the Claimants and unduly naïve and literal-minded in relation to HS2 Ltd’s responses. That is not the mindset of an ordinary reasonable viewer.

If I have descended to a level of localised analysis of what is feared by the Claimants to be a defamatory sting of this Programme, it is only by way of stress-testing the original high-level impression I had formed of what this Programme had to say about the Claimants, taken as a whole. And if on doing so I find that I have not moved very far from my original impression, that should not be surprising in what is – importantly and essentially – an impressionistic exercise in which over-analysis is one of the chief pitfalls to be avoided.

It is a highly fact and context specific exercise also. I am not looking at a publication which sets out an allegation against a claimant and a bare denial, or even a rebuttal (cf. Mark v Associated Newspapers). It is not a publication which ‘advances and then purports to dispel a defamatory allegation’ (cf. Jameel). It is something of a mirror image of those kinds of cases. The Programme advances an overwhelmingly positive portrayal of the Claimants as important contributors to the accumulation of evidence it presents that very serious questions arise about the competence, transparency, accountability and probity of those responsible for planning and executing the HS2 project, and that those questions deserve in the public interest to be (but have not yet been) properly investigated and answered. The specific ‘answers’ of HS2 Ltd are delivered ‘in a matter of seconds’ at the end of the Claimants’ vivid accounts, and do not materially affect ‘the overall flavour’ of the portrayal of the Claimants. On the contrary, the ‘answers’ are, in this context, presented, and easily recognisable by a reasonable viewer, as part and parcel of the narrative of inadequate investigation and response, not as detracting from the contribution of the Claimants to the raising of the questions themselves. The Claimants appear among the protagonists of this Programme with whom an ordinary reasonable viewer would readily identify and accept at face value. HS2 Ltd (which undoubtedly has its own perspective on this and many other aspects of the criticisms levelled and questions raised in the context of the Programme) appears by contrast as a corporate public body with and about whom important and pressing questions have been raised, to which it has yet to give satisfactory answers.

The single natural and ordinary meaning of the Programme, in relation to each Claimant, is that:

The Claimant is a whistleblower. As a senior professional with strong credentials, he gives a clear and compelling account, corroborated by his co-Claimant, of his experience, as a senior employee, of HS2 Ltd’s management of the High Speed 2 infrastructure project. His account raises issues of public concern about HS2 Ltd’s competence, transparency, probity and accountability in relation to the financing of land acquisition. There is reason to believe he was dismissed for his whistleblowing. HS2 Ltd’s response to the Claimant’s account, including of his dismissal, does not provide a satisfactory answer to it.

In this meaning, what the Programme says about each Claimant is factual, otherwise than by way of the final sentence, which is an expression of (editorial) opinion.

In this meaning, the Programme is not of defamatory tendency at common law. The Claimants can be reassured that an ordinary reasonable viewer looking at the whole Programme on a single occasion would not think seriously the worse of either of them, or consider them to have transgressed the common values of our society. On the contrary, they would readily understand the Programme to have presented the Claimants as senior, experienced professionals and individuals worth listening to, with something important to say about their short time as employees of HS2 Ltd which had a strong claim to be taken seriously in the public interest.

In the result, however, a defamation claim against HS2 Ltd cannot be regarded an appropriate vehicle for pursuing any grievance of the Claimants against their former employer in relation to their respective presentation by the Programme.