Morrissey v McNicholas & Anor

The Second Defendant is sued for libel in this action as the publisher of New Musical Express (“NME”). That is a very well known weekly music magazine which had a circulation of about 62,000 copies at the time in question. The action is in respect of words published in the issue of NME for the week beginning 1 December 2007. At that time Mr McNicholas was the editor of NME. The Defendants apply by Application Notice dated 20 May 2011 to strike out this action as an abuse of the process of court.

Mr Morrissey is a well known and successful performer and songwriter. During the 1980s he was the lead singer of “The Smiths”. Since 1989 he has pursued a very successful career as a solo artist. Earlier in 2007 he had released an album that debuted at number one in the United Kingdom Album Charts. At the time of the publication complained of he was recording an album in the United States and was due to launch two new albums, to perform concerts around the world and in particular a tour of the United Kingdom. He issued these proceedings by claim form dated 30 November 2007. That was within days of the publication complained of, but is now nearly four years ago.

The words complained of appeared under the headline “Morrissey Big Mouth Strikes Again”. Under those words, as they appeared on the front cover, was a quotation from Mr Morrissey:

“The gates of England are flooded. The country’s been thrown away”.

There then follow the words:

“Oh dear not again”.

On page 11 is an article based on an interview conducted by Mr Jonze. He was then a freelance journalist The title is

“Has the world changed or has he changed? We wanted to talk about solo albums, being an icon in the modern world, but things took an unexpected turn. Fifteen years after Morrissey and NME last fell out it happens all over again”.

The words complained of are set out over ten pages of the Particulars of Claim. They are in part words edited from a transcript of interviews given by Mr Morrissey to NME, and in part words written by NME concerning the interview. It is not necessary to set out all the words complained of, nor even all the meanings which Mr Morrisey attributes to them.

The first meaning which Mr Morrissey attributes to the words complained of is set out in para 5.1:

“Despite his protestations to the contrary, Mr Morrissey is a racist who insists on espousing shockingly extremist right wing views”.

The claim includes one for aggravated damages. The case put forward is that the editing of the words complained of from the full transcript of the interviews was deliberately distorted, by misrepresentation and omission, to create the maximum publicity for the interview, and to promote the campaign “Love Music Hate Racism” espoused by NME. Mr Morrissey also claims in respect of republications: he lists seven articles published in the days following the publication of NME, being articles in the Guardian, Independent, Sun, Times, Evening Standard and Sunday Times. In two cases they are online. He contends that they exemplify the sensation the words complained of caused, and were intended to cause.

Mr Morrissey also relies on the contents of communications by telephone between Mr Jonze and others on behalf of the NME shortly before publication of the words complained of. He claims that these show that the Defendants did not then believe the meaning which he complains of, or which they now seek to defend. The person representing Mr Morrissey was Mr Mercuriadis, his manager.

In the Defence the Defendants raise an issue as to meaning. The Defendants contend that the words complained of constituted fair comment on a matter of public interest, in that they were expressions of opinion as follows:

“(1)

The opinions are:

The particulars set out, over six pages, passages from the transcript of the interviews, followed by four pages of references to speeches by politicians and Mr Morrissey’s own words and conduct.

On 18 March 2008 Mr Morrissey served a Reply. It includes an allegation of malice, made substantially on the same basis as the plea in support of aggravated damages, namely deliberate distortion and omission. But the Reply gives a much more extensive list of instances. Served with the Reply was a Schedule A, setting out over four pages the parts of the interview it is alleged have been edited in the manner complained of.

Thus it can be seen that the issues in the case are to a large extent issues of interpretation of contemporaneous documents. The contested oral evidence will for the most part relate to such explanations as the individuals involved in the editing of the transcripts are able to give of their actions, and to accounts of telephone conversations between the representatives of the parties in the period shortly before the publication.

By letter dated 8 April 2008 solicitors for NME asked for Further Information under CPR Part 18. They ended the letter stating that failing a proper response they would advise their client to apply for an order under CPR Part 18. The questions mainly related to the specific parts of the editing of which Mr Morrissey was complaining. No answer was given to that request for some three years. It was given on 14 March 2011. When it was given it consisted of a twenty five page document which contained extracts from the transcripts of the interviews coloured in red to indicate deletions or omissions complained of, and coloured in blue to indicate distortions.

The last letter written in 2008 on behalf of Mr Morrissey was dated 29 May 2008. It was in response to a letter of 19 May 2008. Solicitors for Mr Morrissey wrote that they had not considered there to be any great urgency in responding to the request for Further Information and they would attend to this shortly.

The next letter written on behalf of Mr Morrissey was dated 10 December 2009, a gap of 19 months. In it his solicitors stated that they had formulated the response to the request for further information. Insofar as they gave an explanation for the passage of time they said:

“The position is that having resolved litigation that stood to distract our client from pursuing his claims against [the Defendants] and additionally having completed his touring and recording commitments, our client has instructed us to press ahead to determine this action with all due expediency”.

The litigation referred to in that paragraph is litigation between Mr Morrissey and Mr Mercuriadis his former manager. They had fallen out in about May 2008, that is, at about the time when the immediately preceding letter had been written by Mr Morrissey’s solicitors. As they explained in the letter dated 23 December 2009 (in response to an enquiry from the Defendants’ solicitors):

“In relation to the litigation, the position is that on 22 May 2008 (ie some seven days prior to our letter to which you made reference), our client terminated his contractual arrangements with his then manager Mr Mercuriadis. As you would appreciate Mr Mercuriadis had a central role in instructing us in relation to the claim, and from a management perspective alone, it was not until a considerable period of time later that our client had settled new management. The position in relation to management, is in many respects by the by as the principal issue that our client had to contend with following the termination of Mr Mercuriadis’s engagement, was that our client faced highly acrimonious litigation brought against him by Mr Mercuriadis and his companies, which litigation was only finally resolved in August of this year. Our client also faced a considerable volume of satellite disputes arising from such circumstances.

In addition our client had to contend with a shortfall of US $500,000 in relation to monies paid to Mr Mercuriadis/his companies in relation to concerts that our client was contracted to perform in the period there following. This shortfall placed a tremendous additional administrative burden on our client in seeking to meet his contractual commitments.

Once the Mercuriadis litigation concluded, our client was focussed on the imminent release of his album ‘Swords’ and the tour to promote the same, which finished on 11 December 2009”.

There was further correspondence between solicitors. On 4 April 2011 solicitors for the Defendants invited Mr Morrissey to consent to an order dismissing his case with costs on an indemnity basis. The letter set out the grounds upon which the Application Notice was to be issued shortly thereafter.

There are witness statements by and on behalf of Mr Morrissey. Mr Morrissey in his witness statement described what he said was the importance to himself of an opportunity in this litigation to clear his name and reputation of allegations of racism. These had been made against him in what he describes as a barrage of press publicity following the publication of the words complained of. He states that this has never receded. He refers to information that may be found on the internet. That does not include the words complained of in this action because that edition of NME in question was not available online. But he gives an example in an online article published by “Word Magazine” in February 2008, which also refers to Tory MPs in what he claims is a republication of the words complained of in NME.

As to delay, Mr Morrissey states that as a songwriter and performer the entire focus of his activities is devoted to his profession and that he needs someone to manage everything else. Mr Mercuriadis was responsible for overseeing virtually every aspect of his professional life. The impact of the dispute between the two men was crippling to Mr Morrissey, he said. He suffered severe financial difficulties at the time, with both creditors and debtors. His professional life was in complete disarray and he could not, in addition to his efforts to salvage his record contract and touring reputation, also conduct this litigation. It was when these problems had all been resolved, including the dispute with Mr Mercuriadis, that, at the end of 2009, he instructed his solicitors to press ahead with the case.

Mr Reid, his solicitor, states that the principal reason for the delay was the acrimonious dispute between Mr Mercuriadis and Mr Morrissey. Mr Mercuriadis had been responsible for virtually all correspondence or communications in the matter. He was also the person who had conducted telephone conversations with Mr McNicholas and Mr Jonze.

Mr Mercuriadis in his witness statement confirmed that during the period in which he and Mr Morrissey were in dispute he would not have agreed to help Mr Morrissey in this action. However, after they had resolved their differences he became willing to do so. He is resident in California and so could not have been the subject of any effective compulsive procedure. He had been responsible for arranging the interviews with NME and had conducted the discussions before and after the interviews. The evidence relevant to the issues in this action which he states that he can give is as to the communications between himself and Mr McNicholas and others on behalf of the NME. He states that as a result it was his clear view that the interview that NME was proposing to publish would be a positive and celebratory piece which would support Mr Morrissey’s new tour dates and reveal the new record deal. He did not understand at the time that anyone at NME had concerns about the interview on issues of racism. On the contrary it was his understanding that the Defendants were firmly of the view that Mr Morrissey’s comments were neither racist nor controversial. He has also provided to Mr Morrissey’s solicitors copies of over 350 e-mails exchanged between himself, NME and Mr Morrissey.

The Defendants obtained a copy of a pleading filed on behalf of two companies associated with Mr Mercuriadis which were plaintiffs in proceedings against Mr Morrissey in the Los Angeles Superior Court. The action had been filed on 4 August 2008 and this pleading was filed on 04 December 2008. The document gives an account of Mr Morrissey’s career, which they submit must be based on instructions from Mr Mercuriadis himself. It refers to an incident which appears to be the publication by NME (although, if that is so, the date is wrong) in terms which are certainly not helpful to Mr Morrissey. The relevant passage is very brief, only three lines long, but Ms Evans submits that that demonstrates that Mr Morrissey knew that Mr Mercuriadis did not have evidence to give that would assist him. This is one reason why it is not accepted by the Defendants that the dispute with Mr Mercuriadis is any explanation for Mr Morrissey’s failure to prosecute the action.

It does not seem to me that I can attach any weight to this particular point at this stage of the proceedings. If the matter proceeds to trial, and Mr Mercuriadis gives evidence, then it may well be that he may be cross-examined on the document filed in Los Angeles on 4 December 2008. It may be suggested that there is an inconsistency between that, and the evidence that appears in his witness statement. What his explanation for any such inconsistency may be, is not something that I can foresee. I do not think I can take it as clear, so as to undermine Mr Morrissey’s explanation for the delay, that Mr Mercuriadis has in fact no evidence to give which would assist Mr Morrissey.

The evidence for the Defendants is principally to the effect that with the passage of time the ability to remember of the individuals who were responsible for editing the transcript so as to produce the words complained of is greatly diminished. They state that they do not now have any detailed recollection as to why they edited the article in the way they did. Those decisions were taken years ago and by the time the matter comes to trial, if it does, they will be being required to recall reasons for editing decisions taken almost five years earlier. The witnesses are particularly concerned that they are facing allegations of dishonesty in the form of the plea of malice. It is a matter of serious prejudice to them to have that charge hanging over their heads for so long.

Mr McNicholas is now editor of another publication. He states that he is very concerned about the prospect of having to give evidence at a trial more than four years after the events in question, whereas he believes if he had been asked during 2008 to provide an account of what he remembered, his memory would have still been not bad, even for the detail.

Ms Kristina Murison Hodge was the deputy editor of NME in late 2007 and is now the editor. She too describes her difficulty in remembering details of the relevant events.

Mr Jonze now works for a publisher other than the Second Defendant. He too states that he cannot remember details either of the editing process, or more particularly the conversations relied on by Mr Morrissey in which he is alleged to have expressed himself about the interview. He states that had the matter progressed to trial in early 2009, so that he would have been required to provide a witness statement during 2008, he is confident that he would have been able to remember with reasonable accuracy what conversations had taken place and what had been discussed and the details of his own thinking.

There is evidence in reply served for the Defendants, in particular in the second witness statement of Mr Mathieson, their solicitor. He too has conducted internet searches. The result of his searches, he states, is that there have in 2010 been other controversies over Mr Morrissey’s views. But as to any hits relating to the NME article in 2007, he states that, where there appear reports about that, the reports also include Mr Morrissey’s rebuttal of the allegations.

Mr Mathieson states that, on reviewing the e-mails produced by Mr Mercuriadis, he has found that they are mostly ones which were already in the Defendants’ possession. The Defendants were party to the communications, and thus they are documents that would have been made available to Mr Morrissey on disclosure of documents, if Mr Morrissey had progressed the action. Mr Morrissey should have foreseen this was likely to be so. He cannot therefore explain his failure to progress the action by reference to his inability to obtain those documents from Mr Mercuriadis. If that had been his concern, he should have asked the Defendants to produce the documents which he did not do.

The application is based on the court’s power to strikeout proceedings which are abuse of the process of the court (CPR Part 3.4(2)). It is also contended that the continuation of the action would be an interference with the Defendants’ Art 10 right to freedom of expression, and their Art 6 rights to a fair trial. For Mr Morrissey it is submitted that continuation of the action is necessary and proportionate to vindicate his Art 8 rights to his reputation.

The general principles to be applied are not in dispute. The Defendants rely on three separate legal bases upon which they say that the claim should be struck out.

The first is expressed as follows in Grovit v Doctor (unreported) CA, 38 October 1993, approved by the House of Lords [1997] 1 WLR 640. Glidewell LJ said at page 15:

“If the Plaintiff delays in prosecuting such an action, and gives no valid explanation for his delay, the court is entitled to infer that his motive for the delay is not a proper one.”

The second basis relied on by the Defendants is the one derived from Jameel v Dow Jones [2005] QB 946, where Lord Phillips MR said at para [55]:

“Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”

In Lait v Evening Standard Ltd [2011] EWCA Civ 859 the Court of Appeal adopted this formulation of the principle by Laws LJ at paras [42] and [45]:

“42.

The principle identified in Jameel consists in the need to put a stop to defamation proceedings that do not serve the legitimate purpose of protecting the claimant's reputation. Such proceedings are an abuse of the process. The focus in the cases has been on the value of the claim to the claimant; but the principle is not, in my judgment, to be categorised merely as a variety of the de minimis rule tailored for defamation actions. Its engine is not only the overriding objective of the Civil Procedure Rules but also, in Lord Phillips' words, the need to keep "a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation"…
45. … The balance to be struck between public interest and private right is increasingly to be seen as a function of our constitution; and the law of defamation is increasingly to be seen as an aspect of it.”

The third relevant basis relied on by the Defendants on which a claim may be struck out for delay is one considered in Birkett v James [1978] 297, where Lord Diplock at p31F-G expressed the conditions as follows:

“delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party”.

As to the first basis relied on, Ms Evans submits that in the present case the inference that the court should draw from the delay is that, as from May 2008, Mr Morrissey had no further intention of bringing the action to trial. The court cannot simply take at face value the explanations which a claimant puts forward. While his subjective view of his position is relevant, it is not conclusive as to the validity of his explanation.

She notes that the explanations that have been put forward on his behalf by solicitors in correspondence and by himself in his witness statement have differed. The main reason now relied on is the alleged importance of Mr Mercuriadis as a witness, but that was not mentioned in the letters from solicitors. The court should not accept that was the real reason. But even if it were the real reason that is not a valid explanation, such as to prevent the court from concluding that he no longer maintained an intention to proceed with the action.

Ms Evans submits that, even if Mr Mercuriadis had been instructing solicitors up to May 2008, thereafter Mr Morrissey could have instructed solicitors himself. He should have proceeded to disclosure of documents to obtain from the Defendants such documents as he might otherwise have obtained from Mr Mercuriadis, since many of the documents would have been available from either source. That this would have been sufficient is demonstrated, she submits, by the evidence of Mr Mathieson to the effect that the documents which have in fact been obtained from Mr Mercuriadis add little to what was available from the Defendants. The Reply had been served, and it was clear that the central issue in the case was the honesty of those who had acted for the Defendants, including D1 himself. It was not reasonable to consider that Mr Mercuriadis was a crucial witness on that issue.

I have referred above (para 23) to a further point taken by Ms Evans on what was written in the document filed in the Los Angeles court. In any event, submits Ms Evans, the unavailability of a witness cannot be a proper reason for the delay.

As to the second basis relied on, Ms Evans submits that the publication complained of was so long ago (and was not made by the Defendants online) that there is no continuing damage to Mr Morrissey’s reputation for which vindication by means of this action is either required or attainable. Since 2007 there have been other controversies arising from Mr Morrissey’s views on the matters the subject of the words complained of. And as a result of the delay, the evidence shows that where references to the publication in 2007 can now be found on the internet, they appear together with rebuttals by Mr Morrissey, and with his allegations against the Defendants that the publication in 2007 was contrived by the Defendants. There is no evidence of continuing damage. It follows, she submits, that any award of damages would now be very low. And there is no basis at this late stage for an injunction to be granted. That is unnecessary, and would in any case be pointless, since so much has been published about Mr Morrissey in the intervening period. Moreover, vindication is also unnecessary for a further reason. Amongst the material published, and to be found by an internet search, is the report of a statement in open court in which the publishers of “Word Magazine” apologised to Mr Morrissey for making allegations of a similar nature against him.

As to the third basis, Ms Evans submits that the allegation of dishonesty against those involved in preparing the publication is a very serious one, and a fair trial will not now be possible because of the loss of memory in the period of delay. Solicitors for the Defendants did not take full statements upon service of the Reply because, as stated in the request for Further Information, they considered the plea to be inadequate, and because they reasonably formed the view that Mr Morrissey had lost interest in the action. It is now too late for the witnesses to recall what they would have been able to say in 2008.

Mr Sherborne accepts that the delay has been significant. He submits that it is first necessary to consider what the issues in the action will be, if it is not struck out. The first issue is meaning. The second issue is whether the comment relied on is on facts truly stated. The third issue is the plea of malice. Mr Sherborne submits that in all of these the court will be focussing primarily on the words complained of, on such differences as there are between the words complained of and the transcripts of the interviews, and, in the case of the plea of malice, on the contemporaneous e-mails and telephone conversations between Mr Mercuriadis for Mr Morrissey and Mr McNicholas, Ms Murison Hodge and Mr Jonze for the Defendants. In addition there are pleaded facts relating to the 1992 dispute between Mr Morrissey and NME, and the statements of various politicians and other matters pleaded.

Before addressing the submissions for the Defendants, Mr Sherborne submitted that the court should also have in mind that the words complained of were published to a very substantial readership. NME is a most influential magazine in the music industry. That the allegation of racism, even on the Defendants’ meaning, is a very serious one, going to his integrity and honour (John v MGN [1997] QB 568, 607).

As to the first basis relied on by the Defendants, Mr Sherborne submits that the documents demonstrate (so that it is beyond dispute) that May 2008 was both the point at which Mr Morrissey ceased to progress the claim and the date of his dispute with his manager Mr Mercuriadis. A court considering the matter on the papers is not in a position to disbelieve Mr Morrissey’s evidence that he was in practice unable to pursue this claim at the same time as dealing with the dispute with Mr Mercuriadis and the problems associated with his ceasing to employ Mr Mercuriadis. The court could not therefore infer that he had not intention of pursuing the claim. Mr Mercuriadis is an important witness to the telephone conversations which occurred in the period between the interviews and the publication of the words complained of. Moreover, Mr Mercuriadis was not only an important witness whom Mr Morrissey could not call upon while the two of them were in dispute, he was also a potential witness who could harm his case. The document filed in the Los Angeles court demonstrates that Mr Morrissey’s concerns in this regard had a foundation in fact.

As to the second basis relied on by the Defendants, Mr Sherborne submits that this was referred to for the first time in the skeleton argument for the Defendants. The seriousness of the allegation and the extent of publication of the words complained of make the present case clearly distinguishable from any other case in which the Jameel principle has been the ground for a strike out. He submits that the court cannot accept the Defendants’ interpretation put upon the intervening publications referred to in the evidence. On the contrary, the damage done by the original publication continues to have effects on Mr Morrissey’s reputation. Mr Morrissey continues to be very well known in the music world, and so very many people take an interest in publications concerning himself. Vindication remains an important objective for Mr Morrissey, and is attainable in the present proceedings if they are allowed to proceed. As to the third basis relied on by the Defendants, Mr Sherborne submits that the prejudice alleged is not such as to reach the threshold necessary to support a strike out of the action, as set out in Lord Diplock’s test. The lapse of time between the events in late 2007 and the date upon which a trial would take place, if there is one will not exceed five years. That is a period longer than it ought to be, but it is not so long as to make a trial unfair. In any event some of the issues in the action require consideration of events much further in the past than five years, in particular the dispute between the parties in 1992. The main evidence on all the issues is the small number of contemporaneous documents already identified. No documents are said to have been lost. The claim form was issued very promptly, and the pleadings were all served with reasonable expedition. The Further Information has not added materially to what the Defendants knew about the claim in 2008. NME is not a publication which commonly attracts libel proceedings, so the events in question should be more memorable to those involved than is the case with some actions.

Mr Sherborne submits that the documents show that the extracts from the interviews included in the words complained of were hardly altered after the first draft had been prepared by Mr Jonze, and so that he is the only one of the Defendants’ witnesses who might be called upon to explain the selection that he made.

Mr Sherborne also submitted that under CPR Part 1.3 there is an onus on a defendant to assist the court in achieving an expeditious disposal of an action, and so that the Defendants could and should have made an application to the court themselves. In the present case I attach little weight to this submission.

On the papers before me it is not possible for me to disbelieve Mr Morrissey’s explanation as to why he did not pursue the action after May 2008. His explanation is credible. I cannot infer that he ceased to have an intention to progress the action to trial, or that he has been abusing the process of the court by failing to progress it to trial. He ought, of course, to have progressed the action, but to strike out the action would be a disproportionate sanction for this breach of the CPR. Accordingly, I decline to strike out the action on the first ground relied on by the Defendants.

The imputation complained of in this action is a very serious one, the extent of publication was very wide, Mr Morrissey remains a prominent figure in the world of music, and NME is a magazine which enjoys an important place in that world. These are unusual circumstances in which to ask a court to strike out a libel action on the Jameel principle, and I decline to do so.

As to the third basis relied on by the Defendants, I accept that there has been some prejudice in loss of memory. I also accept that it is wrong that the individuals concerned should have hanging over them an allegation of malice. But the question I have to decide is whether it is now no longer possible for there to be a fair trial of the action. In my judgment that point has not been reached. The delay is not as great as that. Accordingly, I reject that basis for the application also.

Overall, in my judgment a proper balance between the Article 10 right of freedom of expression of the Defendants and Mr Morrisey’s right to the protection of his individual reputation requires, in the circumstances of this case, that the action be permitted to proceed.

For the reasons given above, I will dismiss the Defendants’ application. I invite the parties to agree directions to bring this matter to trial at an early date.

As I remarked during submissions, it appears to me that this is a case that might be susceptible to resolution by alternative dispute resolution. But it is important that if there is to be an attempt to resolve it in that way, then that should not lead to further unacceptable delays in the event that the attempt should fail.