Andre v Price

MR JUSTICE TUGENDHAT: Two separate occasions have given rise to the Claimant's complaints in this action. The one first pleaded is an interview the Defendant gave to a journalist on the basis of which there were published words complained of in the issue of Heat magazine dated 10 to 16 October 2009.

Before I go any further, this is going to be an open judgment, but it probably ought to be subject to a postponement of reporting until I have finished it and decided what further applications to hear.

MR SHERBORNE: My Lord, yes.

MR JUSTICE TUGENDHAT: The claim was in slander and libel, but is now in libel alone. There is an issue as to whether the words were defamatory, and the Defendant has raised a defence of fair comment as it is traditionally called, or honest comment as it is better described.

The second occasion was the recording of the BBC programme The Graham Norton Show on 14 October 2009. The BBC did not broadcast the words complained of, but there was a studio audience. The Claimant claims the publication to them was a slander. The Claimant pleads a natural ordinary meaning and two innuendo meanings in respect of this occasion. Again, there is an issue as to whether the words were defamatory, and a further issue as to whether any publishee knew of the extrinsic facts relied on by the Claimant to support each of the innuendos. The Defendant has raised no positive defence to this claim.

In judgments delivered on Friday, 8 October, which was listed as the first day of the trial, I was able to dispose of two out of seven applications made by the Defendant by an application notice dated 15 September. Another two were disposed of by agreement. I heard argument on two more points relating to the defence of honest comment.

There are two further points which remain to be argued and decided. One of them is the seventh point raised in the Defendant's application notice, and is the only one relating to The Graham Norton Show. The other is an issue as to whether the comment, if such it be, is on a matter of public interest. This relates to words allegedly spoken to the journalist for Heat magazine. This issue arises in any event in the trial, and was not the subject of an application notice until this morning. In my judgment it did not need to be.

I heard further argument this morning, Monday, 1 October. The jury is due to be empanelled tomorrow, Tuesday, subject to further delays that may arise.

The parties describe themselves in the Particulars of Claim in terms which are agreed as follows:

In addition to the two children of the marriage, the Defendant had a child from a previous relationship. I shall refer to him as H. He is in need of regular medical treatment and specialist childcare.

The main principles relating to honest comment are summarised by the editors of Duncan and Neill on Defamation, 3rd ed, in paragraph 13.07, as derived from the case of Cheng v Paul [2001] EMLR 777 at paragraphs [16] to [21]. As set out in Duncan and Neill they are:

There are issues under all but the third of these. A further issue arises under the Defamation Act 1952, Section 2. That provides as follows:

Rulings are now required from me on the following points. The first three arise on the defence of honest comment to the alleged libel published in Heat magazine. They are, (1) whether the words complained of in paragraph 3 of the Particulars of Claim are capable only of being comment or opinion, and are incapable of being fact, so that the issue of whether they are fact on the one hand, or comment or opinion on the other, should not be left to the jury. By way of explanation, the only defence raised by the Defendant is honest comment, so if these words complained of are capable of being fact, and if the jury were to find that they are fact, there would be no affirmative defence. (2) whether six specified passages from the Reply should be struck out pursuant to CPR 3.4(2)(a). (3) if the words complained of are comment, whether they are on a matter of public interest. (4) Finally, in respect of the words complained of in The Graham Norton Show, whether these words complained of, in their natural and ordinary meaning, were calculated to disparage the Claimant in respect of any office, et cetera, within Section 2 of the 1952 Act. By way of explanation, if they are not, then since there is no plea of special damage, this slander claim must fail in respect of the natural and ordinary meaning relied on for The Graham Norton Show. But Mr Nicklin accepts that I should leave the issue to the jury in any event in any event, in accordance the guidance in the case of Alexander v The Arts Council [2001] 1 WLR 1840.

The relevant parts of the particulars of claim to be noted at this stage are the following, paragraph 3:

Relevant parts of the defence are in paragraph 7, which is referred to below. The relevant parts of the reply for the purposes of this judgment are set out below.

Mr Nicklin, for the Defendant, accepts the test is the high one, as in the case of Galbraith. A judge cannot withdraw an issue from a jury unless satisfied that no jury could properly conclude that the words complained of are fact in the context of this case. Mr Nicklin relies on a number of propositions of law which are not in dispute. They are set out in the case of British Chiropractor Association v Singh [2010] EWCA Civ 350 referred to in paragraph 77 of page 22 of the skeleton argument dated 5 October, and Keays v Guardian [2003] EWHC 1565 (QB) [45] at paragraph 79, page 23 of his skeleton argument. Both of these paragraphs should be incorporated into this judgment should it ever be reported.

There is a further proposition set out in by the editors of Duncan and Neill at paragraph 13.14 which reads as follows:

Mr Nicklin submits that the words complained of are a statement that the Claimant's love for H is not unconditional. That is not capable of verification one way or the other. Therefore it can only be an expression of the Defendant's opinion, that is to say a value judgment.

Mr Nicklin submits that this is not a case where the Defendant stated simply that the Claimant was a hypocrite and a liar, without identifying any facts of the basis of that statement. If no basis had been given, then an allegation of lying or hypocrisy might have been an allegation of fact, but the words complained of do not include the words "liar" or "hypocrite", so can only be a deduction or inference from what the Defendant did state.

The Claimant has pleaded the meanings that the Claimant is a hypocrite and liar, but Mr Nicklin submits that this part of the pleaded meaning adds nothing, since these meanings can be arrived at if at all, only on the basis that Defendant had said that the Claimant's love is not unconditional. Since that statement can only be comment, a deduction or inference based upon that statement must logically also be comment.

Mr Sherborne submits that before deciding whether words complained of are fact or comment, the jury must first decide what they mean. Here Mr Nicklin's submissions are based on the Claimant's pleaded meaning, but that includes the words "liar" and "hypocrite". These are, or at least can be, allegations of fact. So long as that meaning is left to the jury, they can decide that it is an allegation of fact.

I recall that the context in which the Defendant was talking was as the estranged wife of the Claimant, as appears from the description of the parties above, and indeed from the words complained of themselves.

In my judgment, on this point Mr Nicklin is correct. What the Defendant is reported as saying can only be understood as an expression of her opinion and not as a statement of fact. While calling a person a liar and a hypocrite can be a statement of fact, where that meaning is derived from words that can only be an expression of opinion, it must follow that those words too are expressions of opinion.

The relevant passages of the Reply are lengthy. It is sufficient to summarise the way that the pleadings go as follows. The Defendant pleads honest comment, and then sets out particulars. The Defendant also relies on Section 6 of the Defamation Act 1952, which reads as follows:

The particulars of fact upon which the comment was based, as pleaded, include the following:

In paragraph 7.2 there is included a sentence relating to that part of the words complained of in which the Defendant stated that the Claimant:

The Defendant pleads as follows:

The particulars then go on to plead a different topic as the basis for the comment, namely arrangements about the Claimant's holidays with H and events that occurred while the Claimant was on holiday with H. No objection is taken to that matter being pleaded although it is not explicitly referred to in the words complained of. The Defendant pleads that she offered that H's holidays could be divided equally between the Claimant and the Defendant. The Defendant pleads that the Claimant indicated that he wanted to be able to take two holidays each year with the two younger children but without H, and one long haul holiday without H. It is not clear to me at present whether this is one of the two holidays already mentioned or a third.

The Defendant then pleads that the Claimant failed to engage in the process of selecting a specialist nanny, so that all the arrangements had to be made by the Defendant. But the Defendant goes on to plead that the Claimant did take H on holiday in Cyprus in June 2009. H became ill on that holiday. The Defendant pleads that when that happened, the Claimant was abusive and unhelpful in telephone calls about H's illness with the Defendant's mother, and that it was the Claimant's brother that took H to hospital, not the Claimant himself.

In the defence at paragraph 7.5, the Defendant sets out the words of the Claimant's song "Unconditional" and describes it as:

The reply, in summary, includes the following allegations which the Defendant applies to strike out.

Paragraphs 3.1 and 3.2: that in an action brought against her by Miss Powell in respect of the same words as those complained of by the Claimant in this action, the Defendant had apologised and promised never to repeat the allegation, but the Defendant has made no corresponding admission or apology to the Claimant.

Paragraphs 3.3 and 3.4: that the Defendant did not believe in the truth of the allegation that the Claimant is a hypocrite and a liar. Paragraph 3.4 refers to an application to strike out the defence, which has not in fact been pursued.

Paragraph 3.5: that the defence pleads information about her son, his step-son, H, which is private and confidential.

Paragraph 3.6: that the foregoing will be relied on as aggravating the injury.

Paragraphs 4 and 5 refer to the non-admission by the Defendant of the allegations that she spoke the words complained of in paragraph 3 of the Particulars of Claim, these being the words which were published in Heat magazine. He refers also to the non-admission by the Defendant that these words are defamatory.

Paragraph 7 pleads what the Claimant refers to as:

Paragraph 7.1 is to the same effect as paragraph 7.1 of the defence, namely that H is the Claimant's step-son. Paragraph 7.2 pleads that H requires regular medical treatments. Paragraph 7.3, that the Defendant has endorsed the Claimant's role as father to H, and at 7.4, there are five particulars of this, including at paragraph 7.4(d) and (e), instances where the Defendant stated in the media that the Claimant is "an amazing dad" to H and "a very good dad" to him.

Paragraph 7.5 and 7.6 plead that the Claimant has sought to maintain his relationship with H and to treat him in same way as his own two children. The Claimant goes on to plead that it was at the Defendant's instance that there are these separate arrangements for H, namely two nights every two weeks referred to in the words complained of in paragraph 3.5 of the particulars of claim.

Paragraph 7.7 pleads that the holiday arrangements referred to in paragraphs 7.2 to 7.4 of the defence, in particular on account of H's medical and other needs.

Paragraph 7.8 pleads that the Claimant wrote the song "Unconditional" long before he and Defendant had separated, that he did so with the encouragement of the Defendant, and that the Defendant expressed her approval of the song on 5 March 2009 at the recording studio.

Paragraph 7.9 pleads that in publishing the words complained of in paragraph 3 of the particulars of claim, the Defendant was motivated to attack the Claimant because "public opinion about her was far lower" than about the Claimant.

Paragraph 7.10 is similar to paragraphs 3.3 and 3.4. Paragraph 8.2 is stated to be a response to the defence. In paragraph 8.2(d) the Claimant pleads what he refers to as:

The Claimant then pleads in paragraph 8.2(d)(1) and (2) to events relating to a weekend holiday in Centre Parks in October 2009, and a weekend with the children, when the children were with him, on 1 and 2 August 2009.

Paragraph 8.2(iii) refers to matters pleaded in paragraph 8.3, to which no objection is made in as far as they are pleaded in paragraph 8.3. Paragraph 8.3 and 8.4 plead to paragraphs 7.3 and 7.4 of the defence, and are not objected to in this application.

Paragraph 8.5, in so far as it is objected to, is similar in substance to paragraph 7.8.

Paragraph 9 is the plea of malice. Paragraph 9.1 incorporates paragraph 3, 4, 7 and 8 of the Reply. Paragraph 9.2 pleads that for the reasons set out in those paragraphs, when the Defendant said what she did say to the journalist for Heat, she knew what she said was untrue and wholly at odds with everything that she had said before.

Paragraph 9.3 and 9.4 plead that her motive was an improper desire to attack the Claimant for the reason already stated in paragraph 7.9 and out of spite.

There are other passages in the reply objected to, because they incorporate one or more of the above, but they require no separate mention at this stage.

Mr Nicklin's criticism of these paragraphs of the Reply are made on two independent bases. One basis relates to the factual or objective basis of the comment relied on; that is the point that arises in relation to honest comment as set out in Duncan & Neill's Summary, paragraphs (3) to (5). The other criticism is as to the plea of malice, which is point (6) in the list of Duncan & Neill.

So I turn to Mr Nicklin's criticism on the objective basis for the Defendant's comments. These submissions are directed to paragraph 8.2(d) of the Reply. As noted already, one of the principles (reaffirmed in Cheng) is that the comment must be on facts which are true. This has given rise to further consideration. In particular, in Branson v Bower [2002] QB 737 Eady J made the following observations. If this judgment is reported, there should be included at this stage paragraph 29 down to the words, "In Hunt v Star Newspaper", at page 319. The quotation should then pick up with the heading, "The relevance of accuracy to the objective test." There should be incorporated paragraphs 32, 33, 36, 37, and the words in paragraph 38 down to, "If the case ever got that far, question three." There should also be incorporated the words in paragraph 39 down to, "The Defendant would therefore fail at question one."

There should also be incorporated paragraph 54:

Mr Nicklin submits that the contents of paragraph 8.2(d) of the Reply do not directly undermine the facts pleaded in the defence. They are not "truly exculpatory circumstances which negate the suspicious circumstances raised by the Defendant that will undermine the accuracy of the factual substratum for the comment".

Mr Sherborne submits that the jury could find that the facts the Claimant pleads, all of which were known to the Defendant, do directly undermine the facts pleaded by her in her defence. In my judgment, applying the principles set out in Cheng and in Branson I could not withdraw these matters from the jury. It would be for the jury to decide in the context of this dispute whether the facts relied on and pleaded by the Defendant are true.

What is true is not just a matter of literal accuracy. A statement can be accurate but convey an entirely false impression, as Eady J pointed out in Branson at paragraph 37. For example, it is for the jury to decide whether the Claimant "chose", as stated by the Defendant in the words complained of, or "agreed", as pleaded by her in the defence, to see H for two nights a fortnight.

I turn now to Mr Nicklin's submissions on malice. The propositions of law relied on by Mr Nicklin in support of his attack on the plea of malice are as follows. First, he submits, as is common ground, that malice in the sense of spite or animosity does not of itself defeat a defence of honest comment. That is clear from Cheng, paragraph 79. If this judgment is reported, that paragraph should be included at this stage.

Mr Sherborne relies on the last sentence. Mr Nicklin submits that the last sentence must not be allowed to negate the first sentence. So before evidence of spite or animosity can be put before the jury it must satisfy the requirement for any other particular of malice. It must go beyond what is equivocal or neutral. It must raise a possibility rather than a near possibility of malice; see Turner v MGM [1951] All ER 449 at 455. He submits that nothing pleaded by the Claimant makes it more probable than not that the Defendant was expressing, in the words complained of, an opinion which she did not honestly hold.

Mr Nicklin submits that the Claimant is seeking impermissibly to prove that the Defendant did not believe the meaning which she is not in fact attempting to defend.

As to this, Mr Sherborne submits that before deciding whether the Defendant honestly believed the opinion she expressed, if opinion it be, the jury must first decide the meaning of the words complained of.

I accept this part of Mr Sherborne's submission. The case on malice is not confined to the meaning pleaded by the Defendant, although of course it cannot go to a meaning which would be more serious.

Mr Sherborne further submits that the passages in the Reply are properly pleaded as follows. The facts pleaded in paragraph 3 show a propensity on the part of the Defendant to say and then to defend (instead of admitting) things which she does not believe to be true.

I accept this part of Mr Sherborne's submissions insofar as they relate to paragraphs 3.1 and 3.4. The remainder of paragraph 3 is not relevant to malice, but it does not introduce any issue not otherwise already in the case. So, in my judgment, no purpose would be served by striking out paragraphs 3.5 and 3.6.

I do not have to decide whether the principle in Turner v MGM applies to evidence of propensity to dishonesty. On the facts of the present case, in my judgment the matters pleaded can be said to raise a probability rather than a possibility.

Mr Sherborne submits that paragraphs 4 and 5 are a response to the non-admissions in the defence and again show a propensity not to admit what the Defendant knows to be true. Further, Mr Sherborne submits that striking them out will serve no useful purpose because these are points that can in any event be put in cross-examination as to credit.

The Claimant's case on paragraphs 4 and 5 is much weaker than his related case on paragraph 3. In my judgment, these paragraphs are not capable of showing the propensity relied on. The Defendant is entitled to admit saying the words allegedly spoken to the journalist, and it is not submitted that I should withdraw from the jury the issue of whether the words complained of are defamatory. Neither party has asked me to make a ruling on the meaning of these words.

It may be the case, as the Defendant submits, that he could put these points to the Defendant in cross-examination, whether or not they are pleaded. Nevertheless, they are not matters that should, in my judgment, be pleaded. I would strike out paragraphs 4 and 5 for this reason, independently of any other reason.

Mr Sherborne submits that paragraphs 7 and 8 are relevant both to malice and to the issue of whether the facts relied on by the Defendant are truly stated or are distorted. I accept Mr Sherborne's submission. I cannot withdraw these matters from the jury. It follows that I do not strike out paragraphs 9.1 and 9.2 of the reply.

As to paragraphs 9.3 and 9.4, the jury will be told, if I come to give them directions, that spite or ill-will are not themselves malice in law for this purpose but, at most, evidence from which they can infer a lack of honest belief.

Accordingly, for these reasons, I strike out paragraphs 4 and 5 of the reply.

The relevant passage in the defence is paragraph 7. The matter of public interest is stated to be the Claimant's "public statements about his relationship with the Claimant's son". Only about a month before the words complained of were spoken, the Claimant had released an album and single record, together with a music video, all of them including his song "Unconditional".

Paragraph 7.5 of the defence states:

Neither the song nor the video identify H as the person who the Claimant states that he loves, but I shall assume that some listeners and viewers would have understood that. The Claimant and the Defendant are very famous in the music world and much has been published about their relationship. The song includes the words:

The Claimant treated H as a son before he and the Defendant had children of their own.

In the words complained of and her defence the Defendant referred, in addition to the song, to arrangements for the care of H and the extent to which he would reside with each of her and the Claimant. She also referred, as noted above, to a particular example of what she alleges was a failure on the part of the Claimant to care appropriately for H while on a holiday in Cyprus in June 2009. The relevant passages in the Reply are paragraphs 3.5 and 6.1.

As already noted, that comment or opinion should be a matter of public interest has always been said to be an essential feature of the defence of honest comment. As a first instance judge, it is not open to me to question that, even if I were minded to do so, which I am not. This is emphasised more than once by Lord Nicholls in Cheng in paragraphs 16, 41, 42, 45 and 46. If this judgment is reported, they should be set out at this point.

The effect of this is, as Mr Nicklin rightly emphasised, that in a case where the comment or opinion is not a matter of public interest, then the person publishing the words complained of cannot rely on that defence. If there were another defence available on the facts, the Defendant could rely upon it, but there may well be cases where no other defence would be available on the facts. It follows that the requirement of public interest as a constituent of the defence of honest comment is an interference with freedom of expression. In particular, in the present case it might mean that the Defendant had no defence to the words complained of, so the only issues in the case would then be whether the words complained of were defamatory and, if so, the amount of damages.

The common law requirement that the subject matter of the words complained of be a matter of public interest has received relatively little consideration in the courts in recent years, and none in relation to facts which seem to me to be in any way close to the facts of the present case. The parties agree that, since this is an issue in the trial, the determination of it by me now is the determination of it as part of the trial in my capacity as the trial judge, albeit the jury has not yet been empanelled.

The submissions for the Claimant are in Mr Sherborne's skeleton dated 11 October at paragraphs 39 to 70. If this judgment is reported, they should be included at this point. The submissions for the Defendant are in Mr Nicklin's skeleton, also dated 11 October, at paragraphs 4 to 19. If this judgment is reported, should likewise be included at this point.

In addition, Mr Nicklin made written submissions to the effect that it would be unfair, and an abuse of the process of the court, for the Claimant to be permitted to pursue this action if she, the Defendant, cannot rely on the defence of honest comment. He expanded on these submissions orally. But I simply note the fact that he made these submissions at this stage. I make no ruling upon them. If either party makes an application as a consequence of the decision in this judgment, then I shall consider such applications at the time they are made.

The question whether the words complained of were on a matter of public interest must be tested on the assumption that the jury might find that the other conditions of the defence are all fulfilled, as set out above. So far as the common law is concerned, the question for the judge is simply: are they on a matter of public interest or not? On that approach I have no hesitation in finding that the relationship between the Claimant and H is not a matter of public interest, and no statement by the Claimant about that matter makes it a matter of public interest.

For the avoidance of any misunderstanding, I do not exclude the possibility that there might be occasions when a statement by a parent about his relationship with a child could be a matter of public interest. A possible example might arise on particular facts if, for example, the person making the statement had the public responsibilities for children that a judge hearing family cases has. But there is nothing in the present case to make that so here.

However, the simple common law approach may no longer be sufficient in the light of the Human Rights Act. I make no decision as to that effect, but note it out of caution. The common law strikes a balance between rights of privacy and rights of freedom of expression. These rights were not invented in the European Convention on Human Rights. On the contrary, they are to be found in the European Convention on Human Rights because they were already recognised in the laws of England and of other Member States of the Council of Europe by the late 1940s, when the Convention was drafted.

But the Convention may now require a different approach, as submitted by Mr Sherborne. The rights to be considered by the judge in the context of this plea of honest comment include the following. The Claimant has a right to reputation which, for present purposes, I assume to be a right under Article 8. The Defendant has a right to freedom of expression, which is a right under Article 10. And, in the context of the present case, I assume that it may also be a right under Article 8 to talk about her own private life. Each of the Claimant and the Defendant and H have the right to respect for their private lives under Article 8, and each of the Claimant and the Defendant have rights of access to the court under Article 6.

H has, of course, not waived any right to respect for his private life. In the circumstances of this case, it is submitted, rightly in my view, that the other two children's rights to private life are also engaged and they have not waived their rights either. Information about the relationship between the Claimant and his stepson H is obviously private.

Moreover, although this is a different point, the litigation of the defence of honest comment in this case would involve consideration of evidence about obviously private matters, some of which are referred to above, including in particular H's health and arrangements for his care. The information referred to in the present case is of a high order of sensitivity. The private lives of the two children other than H are engaged because some of the information about H requires comparison between his position and that of the other two children.

I accept Mr Nicklin's submission that whether the words complained of are on a matter of public interest, and whether a public trial of those issues would be in the public interest, are two separate issues. If a trial is to be held, then the court can and must take appropriate measures to secure the Article 8 rights of those concerned, for example by imposing restrictions on reporting or even holding private hearings.

The Claimant and the Defendant could each waive their rights under Article 8, but neither has done so. I do not need to decide whether, if the Claimant had waived his rights, the court would have been bound to take of its own motion the point that the honest comment relied on was or was not in the public interest. I am inclined to think that the court would have been bound to do so in fulfilment of the court's duty under the Human Rights Act s6(1) by which it is required to have regard to the private lives of the third parties involved, namely the children. I, therefore, approach the balancing exercise in the manner required as I am in particular by the case of Re S as cited above.

I have already referred to the privacy rights of those involved. They need no elaboration. Article 6 rights are engaged, but they require no separate consideration. I have assumed, as stated above, that the Claimant's reputation right is, in the present context, a right under Article 8. It is Article 10 and perhaps also Article 8 rights of the Defendant that are the major potential countervailing factor.

Mr Nicklin makes a powerful point when he says that the defence of honest comment is the same whether the Defendant speaks publicly or privately. If she has no defence of honest comment when speaking to a journalist, it follows that she has no defence of honest comment when speaking to anyone else, even if she does so in private. However, I note that when speaking to some other people in private, or in other circumstances, the Defendant might have a different defence, in particular qualified privilege, whether or not she also has a defence of justification.

In the present case, as appears from the words complained of themselves, the Defendant was asked what she thought of the Claimant's music and whether she liked any of his songs. She could have answered by giving her opinion of the songs just as any member of the public could. An opinion about a song would normally be protected by honest comment as being a matter of public interest. She chose to give an answer that related to her view of the song as it related to the Claimant's relationship with H.

The song "Unconditional" is a love song. It is unusual, though not unique, in that it relates to love between a parent and a child. Other love songs may be sung or love stories written, in circumstances where it is clear that the singer or writer has in mind a particular loved one. The position of the Claimant is not unique in that respect. The fact that the public may know who the loved one in question is, cannot, in my judgment, of itself extend the right of criticism of the song on the part of the public, or anyone else, to personal criticism of the singer or writer.

The jurisprudence of the European Court of Human Rights makes clear that celebrities, even ones as prominent as Princess Caroline, cannot be the subject of comments or other statements about their private life simply because they are celebrities. In my judgment, when the Article rights of the Defendant are weighed against those of the Claimant and H, then I must conclude that the Article 10 rights do not outweigh the Article 8 rights of the Claimant, still less those of H. I reach that conclusion on the assumption that the jury would find that the facts were truly stated and the opinion expressed by the Defendant was honestly held by her.

It follows that, both under the approach of the common law, and under the approach pursuant to the Human Rights Act, in my judgment the comment relied on as honest for the purpose of the defence is not on a matter of public interest and cannot therefore go forward.

The natural and ordinary meaning in question is that the Claimant had cheated on the Defendant by having an affair with their former manager Miss Powell. In other words, it is an allegation of adultery by the Claimant while married to the Defendant with his manager. Again I have the benefit of detailed and helpful written submissions. Those of Mr Nicklin are set out in the skeleton argument of 5 October at paragraphs 31 to 44. If this judgment is reported, they should be included at this point. Mr Sherborne's submissions on the point are set out in his skeleton argument of 7 October at paragraphs 27 to 34. If this judgment is reported, they too should be included at this point.

This issue is closely related to the issue of whether the words complained of are defamatory. Issues of whether words complained of are defamatory, and in particular in relation to matters of sexual conduct, are very well suited to be submitted to a jury of 12 randomly chosen members of the public.

One of the issues I decided on Friday was an application pursuant to the CPR Part 53, Practice Direction, paragraph 4.1, that the words complained of in paragraph 8 of the Particulars of Claim were incapable of being defamatory. The main issue in relation to the natural and ordinary meaning was that the words complained of were incapable of referring to an affair with Miss Powell at a time before the Claimant and the Defendant were separated and thus could not be an allegation of cheating. I dismissed that application.

The main issue on this point seems to me to be the meaning of the words "calculated to disparage", as they appear in section 2. It is common ground that "calculated" means "likely" rather than "intended". But it is well-known that there can be degrees both of likelihood and of disparagement. As to likelihood, the different meanings of that term are discussed in the case of Cream Holdings v Banarjee [2004] UKH2 44 in the context of the Human Rights Act section 12. Before me it has been common ground that in section 2 the word "calculated" cannot mean "more likely than not". It must mean something less than that. I agree with that.

"Disparagement" is also a word which might cover a range of possible seriousness. Obviously actual damage is not required because if that were present there would be no need of section 2. On the other hand, liability as a result of a trivial effect on the mind of the publishee cannot be imposed consistently with Article 10. In my judgment, section 2 must be interpreted with a degree of flexibility, but it requires something more than a minimal meaning to be attributed to each of the words in question. A meaning for both words together must be found which reflects the importance of Article 10 rights. It would be inconsistent with Article 10 to impose liability for slander when the effect upon a Claimant's reputation was below a certain threshold.

Whether section 2 is satisfied must be considered not only in the light of the words complained of themselves, but also in the context in which they are spoken. Here, Mr Nicklin emphasises that the publication complained of was to a relatively small number of people, all of them members of the public who were in a studio audience, together no doubt with one or two other people who were there in a professional capacity.

Mr Sherborne emphasises that the allegation is not just of any extramarital affair but of an affair with the Claimant's manager; that is to say it is in a professional context. He emphasises that slanders are repeated, and he points to the allegations of repetition in this case in paragraph 12 of the Particulars of Claim. He also reminds me of the words of Gray J in the Maccaba vs Lichtenstein [2004] EWHC 1580 (QB) case in which he referred to this point under the words "the ripple effect".

In my judgment, the allegation of an affair in a professional context is much more likely to come within section 2 than the allegation of an affair outside such a context. In Maccaba, the allegation was of an affair outside such a context, and nevertheless was found to come within section 2. But it is still necessary to have regard to the publishees and the circumstances of the publication.

To take an example, if there was a single publishee who was a person in a position of authority over the Claimant, it may be that the allegation of an affair in a professional context would be more likely to satisfy section 2. It might raise issues of employment law and abuse of power by the Claimant.

But in the present context I have had the benefit of considering the witness statements and other documents. I can see nothing in the pleaded cases, or anywhere else in the papers, on the basis of which a reasonable jury, properly directed, could find that the disparagement of the Claimant in the present case met the measure of seriousness necessary to bring the case within section 2.

As to the repetition of the substance of the slanders in subsequent publications, if they give rise to a cause of action in libel, then a Claimant can sue on libel in respect of those publications. But whether they do or not in this case (that is: give rise to a cause of action in libel) is not a reason which persuades me that the words complained of meet the level of disparagement necessary for the Claimant to bring himself within section 2 in the present case.

Accordingly, in my judgment, the slander pleaded in relation to the natural and ordinary meaning in the Graham Norton programme cannot be left to the jury.