O'Dwyer v ITV Plc

An example of meanings pleaded by Mr O’Dwyer which Miss Addy submits are not capable of being defamatory is the very first natural and ordinary meaning that he pleads. Para 16 of the draft reads:

“16.

In their natural and ordinary and/or inferential meaning and in the context in which they were published, [the words at 21:37:22 to 21:37:43 and at 21:38:45] were understood to mean:

16.1

that while in Cyprus, the developers indicated he was, subject to his partner’s agreement, prepared to give the Claimant his money back, and that once home that offer was crystallised.
16.2 that the Claimant rejected a sincere offer of his money back.
16.3 that regardless of any offer, the Claimant wanted the house in any event”.

Miss Addy submits that all that the reasonable viewer could understand is that he declined the offer for the reasons he is recorded as stating (at 21:37:57), namely that he would prefer to buy it and sell it on. Miss Addy is plainly right in this submission. These are not capable of being defamatory meanings.

In para 17 of the draft Mr O’Dwyer pleads:

“Once the viewer has absorbed the above false information the implication has a wider more substantial sting. It is implied that the Claimant put his family in this dire situation needlessly, for over 5 years. This portrayed the Claimant as a foolish person”.

Miss Addy submits that the claim in respect of this meaning could not in any event amount to a real or substantial tort, or could not succeed, since the alleged meaning is contradicted by the words which he is shown as speaking,

Mr O’Dwyer submits that ITV has misquoted him, or quoted him out of context. He submits that it omitted to broadcast a further statement that he made to ITV, to the effect that the offer apparently made by the developers was not in fact a genuine offer and had been retracted.

I accept Mr O’Dwyer’s submission that, as a matter of principle, a person shown in a broadcast as speaking words can be defamed by that broadcast of his own words. That may occur if those words are so edited that they can reasonably be understood as meaning that he has spoken words that would tend to lower the speaker in the estimation of right thinking people.

However, as a matter of practice, it appears to me that Mr O’Dwyer faces difficulties. The first difficulty that Mr O’Dwyer faces in relation to this point is that the reason he is recorded as giving for refusing the offer allegedly made by the developer could not reasonably be understood as foolish, obstinate, greedy or otherwise unreasonable. To attribute to a speaker words or actions that are reasonable cannot be defamatory of him in any natural and ordinary meaning, even if the attribution is incorrect.

That is why Mr O’Dwyer needs to plead an innuendo, if he is to succeed on this point. But his innuendo is defectively pleaded. It reads:

“Further, by way of true (legal) innuendo the words complained of [in the above passages] meant and were understood to mean that the Claimant was a hypocrite.
18.1 the Claimant had extensively published (as pleaded in para 6) that the 2006 verbal offer in Cyprus was immediately retracted on his return to the UK. The verbal offer was never sincere and was given to avoid dialogue.
18.2 the Claimant will invite the court to infer that:

18.2.1

thousands of readers, who followed and supported the Claimant (as pleaded in para 6) understood these facts laid out in para 18.1.
18.2.2 The Defendant omitted the Claimant’s spoken words from the programme where he immediately explained paragraph 18.1.
18.2.3 The Defendant had full access to all correspondence on the retraction of this verbal offer”.

However, para 6 of the draft amended Particulars of Claim does not plead the facts alleged. All that that paragraph contains is:

“By the summer of 2011 the Claimant had been in over 40 press articles abroad and was well known within the expat and local community. The Financial Mirror wrote: “The Conor O’Dwyercase has reached such a level of international notoriety it is difficult to see Cyprus ever living it down”. The Claimants story has been diarised in minute detail on his websites www.LyingBuilder.comwww.ShameOnCyprus.com, various internet forums and on YouTube. His entire experience with the Cypriot developer is online and supported by audio, video and documentary evidence”.

So if (as he claims) he has in fact published that “the 2006 verbal offer in Cyprus was immediately retracted on his return to the UK”, paragraph 6 of the draft does not state that fact. Nor, if it be a fact, does paragraph 6 of the draft identify when, how or to whom he published that fact.

Even if Mr O’Dwyer did publish on one of his websites, or elsewhere on the internet, that “the 2006 verbal offer in Cyprus was immediately retracted on his return to the UK”, he would face a further difficulty. It is established law that the court will not draw the inference as requested in para 18.2.1 simply from the fact there is a website. Mr O’Dwyer would have to plead and prove that there were within the jurisdiction, people who had viewed both the Programme and the website: Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 WLR 113. As Gray J said at para 37:

“I am unable to accept that under English law a claimant in a libel action on an Internet publication is entitled to rely on a presumption of law that there has been substantial publication.”

The reason for this is that there are thousands of websites, and, as is well known in this court, it is difficult to prove that anyone read them, unless the viewers make contact with the claimant.

Here Mr O’Dwyer states that he has had messages from people saying that he has been unreasonable, but he has not attempted to identify which, if any, of them viewed both the Programme and the relevant statement on one of his websites. If such people are identified, there will remain the further question whether the meaning that they have put upon the Programme is one that a reasonable hypothetical viewer could put upon it.

I have said that I assume that the facts pleaded are true, and I have reached the conclusion that this pleading is defective on the basis of that assumption.

In para 29 Mr O’Dwyer pleads the passage from the Programme starting at 21:42:54. At para 33 he pleads the passage starting at 21:45:00. At paras 31 and 34 he pleads the meanings summarised at para 6ii) above.

In the draft Mr O’Dwyer pleads:

“34 In their natural and ordinary meaning and/or inferential meaning and in the context in which they were published, the words in [this extract] meant and were understood to mean:

34.1

that the Claimant was arrested and charged with public insult for the wording of the banner only.
34.2 the banner was offensive.
34.3 the Claimant was guilty of the crime
34.4 that there were reasonable grounds for suspecting that the Claimant was guilty of the crime
34.5 that there were reasonable grounds for an investigation into whether the Claimant had committed the crime.

35.

In the context of the programme the narrators words in [this extract] implied that the Claimant:

35.1

had, after refusing offers to settle the matter, went on to torment the developer.
35.2 had committed a crime in front of Christoforos Karayannas, several police officers and the ITV film crew.

36.

In support of the claim of defamatory words in [this extract], the Claimant will rely on the following facts and matters

36.1

The arrest charges were for shouting “You bastard” and “You criminal” towards [the developer] as well as for the wording on the banner.

36.2

that ITV witnessed and filmed the entire protest and that no such public insult was ever shouted. ITV were themselves witness that the charges were false and that the developer was a liar.

36.2

ITV knew at the time of publication that no further action had been taken in relation to the charges.

36.3

ITV hid the above facts as it did not suit the story they were portraying”.

Miss Addy accepts that these words and images complained of are capable of bearing the meaning that there were grounds to suspect that Mr O’Dwyer had insulted the developer, and that meaning is capable of being defamatory. She does not accept that the words and images complained of are capable of bearing the higher meaning, that he was in fact guilty.

In the documents Mr O’Dwyer has submitted to the court (Bundle 1 divider 15) Mr O’Dwyer sets out the same parts of the transcript and he adds:

“The banner stated ‘Karayiannas are criminals’ this statement is fact. We were stood outside the office of Christoforos Karayiannas & Son Ltd. Christoforos Karayiannas and son Marios are convicted criminals for ABH to one of their customers, me! The company logo is also on the banner so there can be no mistakes as to whom I am referring to. We did a two hour silent protest holding the banner. Nothing was shouted out, we simply held up the sign”.

Mr O’Dwyer attaches a photograph of himself and his wife holding the banner. This is part of what appears in the Programme, save that the words “are criminals” and the further words on the banner “Lying Builder.com” are pixellated in the Programme.

Referring to these, Miss Addy submits that in relation to this complaint Mr O’Dwyer has no real prospect of succeeding in his claim, because, on his own version of the facts, the meaning that there were grounds to suspect that Mr O’Dwyer had insulted the developer is plainly true.

The Programme did not include any mention of the words “You bastard” and “You criminal”. So plainly these words cannot be relied on in support of a natural and ordinary meaning. The whole of para 36 of the draft is misconceived.

Paragraphs 34.3 and 35 of the draft plead meanings which the Programme cannot arguably bear. There is simply no allegation of actual guilt. Para 34.1 is the only meaning which the relevant part of the Programme is capable of bearing. Whether he was in fact arrested for something else is irrelevant to whether the Programme bore this defamatory meaning. I accept that the meaning in para 34.1 is arguably defamatory. But I also accept Miss Addy’s submission that, in the light of the facts as Mr O’Dwyer alleges them to be, he would have no real prospect of success in relation to paras 34.1, 34.2, 34.4 and 34.5.

In para 37 Mr O’Dwyer pleads the passage at 21:45:12 of the transcript. In para 38 he pleads, and attributes to that passage, the further natural and ordinary meaning that he was belligerent and too extreme in his protest. In para 40 Mr O’Dwyer pleads further matters, as he states, in support of this natural and ordinary meaning. Such facts are irrelevant to the meaning.

Miss Addy submits that this passage is not capable of bearing this, or any, defamatory meaning. Further, on the facts as Mr O’Dwyer alleges them to be, and as he is photographed behaving, Mr O’Dwyer has no real prospect of succeeding on this in any event.

In paras 41-48 Mr O’Dwyer pleads numerous short passages from different parts of the transcript. In paras 49 to 52 he pleads that these mean that he was hostile, a warrior, aggressive, stubborn and unyielding, and a series of similar adjectives which add nothing to the claim.

Miss Addy submits that in context the Programme is incapable of bearing these meanings. The Programme depicts Mr O’Dwyer as having been the victim of two disgraceful assaults by Messrs Karayannas, one by their hands, and the other by a car crash. Mr O’Dwyer is shown as having suffered injuries of some seriousness as a result of that crash. Mr O’Dwyer was directly physically assaulted by Mr Karayannas immediately after their two cars collided. It was this, rather than the collision, that caused his injuries.

In paras 54 to 74 Mr O’Dwyer pleads passages from the Programme in which the case advanced by Messrs Karayannas is set out. Mr O’Dwyer complains that these passages bear the meaning that ITV is endorsing that case.

Miss Addy submits that this is unarguable. The reasonable hypothetical viewer would be well aware that in a TV broadcast the broadcaster is obliged to act fairly, and that, in reporting a dispute, the broadcaster cannot be understood to mean that one side or other in the dispute is correct, unless it makes clear that that is what it is saying. In the Programme there is nothing which could arguably amount to an endorsement by ITV of the case advanced for Messrs Karayannas.

In para 76 Mr O’Dwyer claims damages for psychological harm. He has produced no medical evidence. Miss Addy submits that in the light of the experiences that he has suffered since 2006, no such claim can be advanced without an explanation of why it is said any such harm is attributable to the Programme.

In my judgment, as the draft is now pleaded, Miss Addy is correct.

In para 77 Mr O’Dwyer claims aggravated and exemplary damages, based on what is said to be the malice of ITV. No individual representative of ITV is identified. The plea is entirely formulaic and lacking in particularity. A plea of malice is a very serious allegation of dishonesty. There is simply no basis put forward at all for this paragraph.

A breach of confidence occurs where (i) information has the necessary quality of confidence, (ii) it has been imparted in circumstances importing an obligation of confidence to the claimant and (iii) unauthorised use or disclosure has occurred. An obligation of confidence arises when information comes to the knowledge of a person, in circumstances where he has notice, or is held to have agreed, that the information is confidential.

The law on misuse of private information is set out in McKennitt v Ash [2008] QB 73 at [11]. There is a two-stage test, as set out by Buxton LJ :

“.....Where the complaint is of the wrongful publication of private information, the court has to decide two things. First, is the information private in the sense that it is in principle protected by article 8? If no, that is the end of the case.

If yes, the second question arises: in all the circumstances, must the interest of the owner of the private information yield to the right of freedom of expression conferred on the publisher by article 10? The latter enquiry is commonly referred to as the balancing exercise....”

Miss Addy submits that the draft amended Particulars of Claim are drafted without reference to the law. No private or confidential information is identified.

Miss Addy is plainly correct. What is pleaded bears no relation to what has to be pleaded and proved to establish these causes of action. What is pleaded is that ITV owed a duty of care to Mr O’Dwyer, and that he did not give his consent to the broadcasting of the Programme, that ITV omitted to broadcast that the house the subject of the dispute had been sold to another purchaser at a higher price, as Mr O’Dwyer alleges to be the case, and that the date of the broadcast was brought forward.

These two new claims disclose no reasonable cause of action.

The claim for “Breach of Freedom of Expression” is a claim unknown to the law. The complaint is that the protest banner was pixellated, as if ITV were obliged to publicise what Mr O’Dwyer chose to ask them to publicise.

The final new cause of action is infringement of copyright in the home video footage supplied by Mr O’Dwyer to ITV. This includes footage of him being assaulted. This is not a claim that can be brought in this Division. In any event it appears to have no merit. It is plain that the footage was provided for the purpose of the broadcast. If there was any agreement by which Mr O’Dwyer retained a right to revoke the implied licence, it is not pleaded.

For these reasons permission to amend the Particulars of Claim is refused. It is accepted by Mr O’Dwyer that the original Particulars of Claim do not disclose a cause of action. So the claim will be struck out.

This conclusion does not imply anything adverse to Mr O’Dwyer’s reputation. The main basis for the decision I have reached is that it is not arguable that the Programme harmed Mr O’Dwyer’s reputation. Rather it portrays him (whether rightly or wrongly) as the victim of serious assaults, and other wrongs, suffered in the course of an attempt to buy a house for his family.

Mr O’Dwyer states in para 1 of his draft amended Particulars of Claim:

“The Claimant is a litigant in person with no legal training and will seek appropriate guidance and directions from the court”.

With him in court was a law student in her second year at university. If he has had any other legal assistance, he did not say so (nor was he under any obligation to say so). He presented himself as being at a disadvantage faced with the very experienced lawyers representing ITV.

It is not uncommon for self represented litigants to invite the court to act as a source of guidance. The court is under an obligation to do justice, and so, where a litigant is without representation, the court will be bound to look for points in the litigant’s favour which the court would not have to look for if the litigant was represented. But the English legal system is adversarial. The court employs no legally qualified staff to assist the judge. Not only is the court without any means to provide such assistance, the court is also obliged to be impartial. A litigant who explicitly seeks the guidance of the court in the way that Mr O’Dwyer does is seeking what he may suppose to be free legal advice. But he is seeking it from a source which is unable to provide it, and it is certainly not free. The hearing before me has generated very substantial lawyer’s fees, and someone has to pay them.

In terms of knowledge of the law, Mr O’Dwyer was, of course, at a disadvantage. But that is not the only possible of view of the situation of the parties.

Miss Addy submitted that ITV was at risk of not recovering any costs that Mr O’Dwyer may be ordered to pay to ITV. The court has no information as to Mr O’Dwyer’s means.

If Mr O’Dwyer has financial means, the inequality in knowledge of the law has arisen by his own choice in not obtaining representation. The risk is that costs orders may be made against him, which would not have been made if he had been represented. If any such costs orders were to be made in this case, they would be likely to exceed by a substantial margin any costs which he might have had to incur to be represented.

If, on the other hand, Mr O’Dwyer has no means to obtain legal advice from a practitioner with experience of this area of the law, then he will not have the means to meet any substantial order for costs that may be made against him. If that is the situation, then it is ITV that is at a disadvantage vis à vis Mr O’Dwyer. If that is the position, it will stand to pay its own costs whether it wins or loses, whereas Mr O’Dwyer stands to only to win.

In practice the course adopted by Mr O’Dwyer in this case in seeking guidance from the court is extravagantly costly, whoever it may be who has to bear those costs.

Any experienced practitioner knowledgeable in the law of defamation would be likely to have given to Mr O’Dwyer advice broadly along the lines of the conclusions I have reached in this judgment. And that practitioner would have done that at a small fraction of the costs that have been incurred by ITV, and by the public (who pay for the courts and judges).

In Campbell at para [29] Lord Hoffmann said:

“I cannot however part with this case without some comment upon other problems which defamation litigation under CFAs is currently causing and which have given rise to concern that freedom of expression may be seriously inhibited. They are vividly illustrated by the recent judgment of Eady J in Turcu v News Group Newspapers Ltd[2005] EWHC 799 (QB) 6. …

6.

[the claimant] is able to pursue his claim purely because [his lawyer] has been prepared to act on his behalf on the basis of a conditional fee agreement. This means, of course, that significant costs can be run up for the defendant without any prospect of recovery if they are successful, since one of the matters on which [his lawyer] does apparently have instructions is that his client is without funds. On the other hand, if the defendant is unsuccessful it may be ordered to pay, quite apart from any damages, the costs of the claimant's solicitors including a substantial mark-up in respect of a success fee. The defendant's position is thus wholly unenviable.

7.

Faced with these circumstances, there must be a significant temptation for media defendants to pay up something, to be rid of litigation for purely commercial reasons, and without regard to the true merits of any pleaded defence. This is the so-called "chilling effect" or "ransom factor" inherent in the conditional fee system, which was discussed by the Court of Appeal in King v Telegraph Group Ltd… This is a situation which could not have arisen in the past and is very much a modern development.”

The situation of defendants as described by Lord Hoffmann and Eady J is particularly unenviable. But it is a situation which can and does arise to a lesser (but still very serious) extent where a claim is pursued by a self represented litigant (or by any other litigant, who does not have a CFA), and who does not have the means to pay any order for costs that may be made against him.

In the present case Mr O’Dwyer had an alternative remedy, and for which he did not need to take any risk as to costs. He pursued that remedy. That was by way of complaint to Ofcom that he had suffered unfair treatment. That complaint was different from a complaint in libel, and it would in principle be possible to pursue both complaints. But Mr O’Dwyer’s complaint to Ofcom was not upheld.

Changes in the law relating to CFAs may improve the situation of some defendants. But it will not make any difference in cases where claimants are self represented. It is not clear that there is anything that the court or the legislature can do about this. In many cases self represented litigants have genuine grievances and their claims succeed. But the potential injustice to a defendant in the position of ITV is such that the court must exercise its powers of case management in the light of the overriding objective with great care. If a case cannot succeed, the sooner that is decided the better for everyone.