Price v MGN Ltd

The claimant was the Chief Constable of Cleveland Police. In and after 2011, he was the subject of disciplinary investigations and proceedings. As a result, he was dismissed. That was in October 2012. In December 2016, the defendant, the publisher of the Mirror newspaper, published three articles which have led to this libel action. The claimant complains that those articles meant that, when he was Chief Constable, he was party to the illegal interception of the mobile phone records of a Mirror journalist. The defendant denies that any of the articles bore any such meaning, or any lesser meaning of the same kind (an “Interception Meaning”). If that was right, it would be the end of the case, because the only meanings complained of are Interception Meanings. On the defendant’s application, I have tried the issue of what the words complained of mean as a preliminary issue in the action.

For the reasons that follow, I have concluded that the claimant is right about the meanings of the words complained of.

The defendant has an alternative application, by which it seeks to bring an early end to the claim on other grounds. It seeks summary judgement, or alternatively the striking out of the claim as an abuse of process. The basis for these applications is not that there was any truth in the Interception Meanings, or that the defendant has any other substantive defence to the claim in respect of those meanings. Rather, it is said that the articles complained of contained other, separate and distinct, defamatory imputations about the claimant, arising from or connected with his dismissal. Mr Wolanski has dubbed these the Dismissal Allegations. It is said that the publication of those allegations – of which the claimant has not complained - was so destructive of the claimant’s reputation that the publication of the Interception Meanings cannot have caused any serious reputational harm. Accordingly, the claim must fail. Alternatively, the claim is said to be an abuse of the Court’s process, on two bases. First, it is said that the time and expense which the claim would absorb are wholly disproportionate to the minimal damages that might, at best, be recovered; so, it would be wrong to allow the claim to proceed. Reliance is placed on the abuse of process principle identified in Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75 [2005] QB 946. Alternatively, the claimant’s decision not to complain of the Dismissal Allegations is said to be a tactical abuse of the law or the Court’s procedures.

My conclusion, for the reasons given below, is that it cannot be said that the claim is bound to fail, or that it is an abuse of the Court’s process. The summary judgment and strike-out applications should both be refused. The claim must proceed towards trial.

The first article complained of (“the First Article”) was published from about 22.36 on 18 December 2016 in Mirror Online. A slightly modified version was published about half an hour later, but the changes are immaterial. The article was headed “Police unlawfully intercepted Mirror reporter’s phone records after disgraced Chief’s lies were exposed”. There was a sub-headline, in bold: “Force unlawfully snooped on us and others after its £191,000-a-year Chief Constable, later sacked in disgrace, had an affair with a colleague, lied about it, and spent thousands of pounds of taxpayers' money on jollies with her.” The claimant complains of all these words.

This was quite a long article, running to 37 paragraphs in all. The full text is set out in Appendix A to this judgment, with paragraph numbering added for ease of reference. The article was illustrated by three photographs of the claimant, two in uniform and one in civilian clothes with the caption, “Price leaves his home yesterday”. The claimant has selected some of the article for complaint, relying on the following words (again, the numbering has been added):

“[1] A police force last night faced stinging criticism for unlawfully snooping on the Daily Mirror after we revealed its Chief Constable blew taxpayers’ cash to conduct an affair with a colleague.

[2] Bosses used powers designed to track terrorists and dangerous criminals to access my phone records as well as those of other journalists, officers and a solicitor in a bid to find who was leaking information about alleged racism within its ranks.

…

[6] Cleveland Police admitted it accessed my mobile records under the Regulatory Investigatory Powers Act of 2000.

…

[22] In 2010, the Mirror told how Price had started a fling with Eastwood, now his wife. An internal report by Cleveland Police told how he tried to cover up his affair when we first broke the story.

…

[34] Five months after our phone records were accessed, Price became the first chief constable to be sacked in 35 years. …”

The natural and ordinary meaning attributed to these words by the claimant is that “whilst holding office as Chief Constable, [he] was party to the illegal accessing of the mobile telephone records of a Daily Mirror journalist.”

A similar article (“the Second Article”) was published in the hard copy Mirror newspaper the following day, 19 December 2016. It was a “splash and spread”, in two main parts. There was a prominent front page lead story which referred the reader to pages 4 and 5 for the “FULL STORY”. These two elements have, quite rightly, been treated as a single publication for present purposes.

The front page lead took up over half the front page. It was headed “CHEATING TOP COP & THE SPY SCANDAL” and sub-headlined “Police unlawfully intercepted Mirror reporter’s phone records after chief’s lies exposed”. The claimant complains of all these words. The article was illustrated by a photograph of the claimant in police uniform. The claimant complains of the body of the front page splash, which read as follows:

“POLICE used terror laws to snoop on Mirror phone records after it was revealed a Chief Constable lied about his fling with a colleague.

Cleveland bosses accessed data after reports that Sean Price blew public cash on the relationship and other allegations of racism within the force. One MP said: “This is shocking. We do not live in a police state.”

The spread on the inside pages had two headlines: “SHAMEFUL ABUSE OF POWER BY POLICE” and “THE SPY COPS”. Beneath those words were a photograph of the claimant (“top cop”) shown as he “leaves his home yesterday”, and a picture of his “cop lover”. Prominently in the middle of the page were these words: “Force unlawfully snooped on us & others after its £191,000-a-year Chief Constable, later sacked in disgrace, had an affair with a colleague, lied about it, and spent thousands of pounds of taxpayers’ money on jollies with her.” The claimant complains of all these words. The spread comprised a main article, some boxes of text, and a comment piece.

The main article was again quite long, this time running to 28 paragraphs in total. The full text is at Annex B to this judgment. The claimant has selected the first seven paragraphs for complaint. They read as follows:

“[1] A POLICE force last night faced stinging criticism for unlawfully snooping on the Daily Mirror after it was revealed its Chief Constable blew taxpayers' cash to conduct an affair with a colleague.

[2] Bosses used powers designed to track terrorists and dangerous criminals to access my phone records as well as those of other journalists, officers and a solicitor in a bid to find who was leaking information about alleged racism within its ranks.

[3] We had told how £191,000-a-year Cleveland Chief Constable Sean Price was having a fling with his chief staff officer Heather Eastwood. He claims the romance started after he had left his wife Jackie, but that turned out to be a lie.

[4] Later sacked for gross misconduct and branded a liar and a bully, he also spent £57,800 on a force credit card, which included bills for hotels and flowers.

[5] Cleveland Police admitted it accessed my mobile records under the Regulatory Investigatory Powers Act of 2000. And a tribunal in London heard it breached communication data powers to get hold of the information.

[6] It claimed the move was done by mistake. But former Shadow Home Secretary Yvette Cooper branded the breach "very serious".

[7] The Commons Home Affairs Select Committee chairwoman said: "Communications data powers exist so the police can investigate serious crimes, not so they can prevent journalists holding them to account. In a democracy the freedom of the Press is incredibly important and needs to be protected not undermined. …"”

The comment piece, by Kevin Maguire, ran to seven paragraphs. The claimant complains of it all:

“[1] WELCOME to Stasi Britain, where cops spy on journalists investigating credible allegations of police corruption.

[2] If this had been in Putin's Russia, our PM and Foreign Secretary would rightly denounce state intimidation and an unwarranted assault on press freedom.

[3] So we must now hold to account the high-ranking uniforms who abused positions of trust to cover up bad behaviour by public servants. Covertly monitoring calls by my respected colleague Jeremy Armstrong rode roughshod over his right to privacy and civil liberties. The police happily tracing calls in the hope of unmasking a mole tells me they were more anxious to avoid embarrassment than ensure public money was spent wisely.

[4] But a broader, more terrifying truth is this alerts us to the danger of the police as a law unto themselves, prepared to stamp on anybody who gets in their way.

[5] Gagging papers, halting probes would make their life easier at the expense of the public good. The disinfectant of daylight keeps the authorities honest.

[6] Spying on the Press is the e-version of a baton. I condemn cases where journos broke laws with no public interest defence - and we must equally robustly stand up to the snooper cops.

[7] Journalism at its best speaks truth unto power, so we should be concerned that's why the police accessed records.”

One of the text boxes contained a large print “pull quote” drawn from paragraph 6 of the the comment piece, of which the claimant also complains: “Spying on Press is the e-version of using a baton”.

The meaning attributed by the claimant to the words complained of in the Second Article is that “whilst holding office as Chief Constable, [he] abused his power by being party to the illegal accessing of the mobile telephone records of a Daily Mirror journalist who was investigating him.”

A further article was published on the evening of 19 December 2016, in Mirror Online (“the Third Article”). This was rather different in its language from the earlier pieces. It had this prominent headline: “CHEATING COP WHO ACCESSED MIRROR PHONE RECORDS CLAIMS HIS PHONE WAS ALSO MONITORED”. There was a sub-headline: “Sean Price, 59, was sacked from his £191,000-a-year job with Cleveland Police four years ago after we told of his affair with a colleague”. The claimant complains of both. The body of the article ran to 23 paragraphs, again illustrated by three different photographs of the claimant, two in uniform and one seemingly more recent, in suit and tie. The full text is at Annex C to this judgment. The words which the claimant has selected for complaint are these:

“[1] The cheating policeman at the centre of the Mirror data scandal has claimed HIS phone was monitored too.

…

[4] Cleveland Police has admitted accessing Mirror phone records for four months from Jan 1 to May 1, 2012 - at the time we ran a number of stories on Price and the long-running investigation into claims of his corruption.”

The claimant’s case is that the words he complains of bore the following natural and ordinary meaning: that “whilst holding office as Chief Constable, [he] was party to the illegal accessing of the mobile telephone records of Daily Mirror journalists who were investigating him.”

Paragraph 7 of the Particulars of Claim alleges that the words complained of in the First, Second and Third Articles “have caused serious harm to the Claimant’s reputation.” That of course is nowadays an essential averment, because, “a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”: Defamation Act 2013, s 1. The pleading sets out matters on which the claimant will rely in support of this assertion. They include the seriously defamatory nature of the words complained of, from which it is said that “serious harm to the Claimant’s reputation may reasonably be inferred”. That way of putting the case reflects the established principle that if the claimant proves the publication of a serious defamatory imputation, “an inference of serious reputational harm ordinarily can and should be drawn”: Lachaux v Independent Print Ltd [2017] EWCA Civ 1334 [2018] QB 594 [70].

The matters relied on also include this: “The allegations were different from those concerning the Claimant’s conduct which led to his dismissal as Chief Constable and caused additional damage to his reputation.” The claimant goes on to rely on the publication of “a large number of critical comments concerning the claimant” on the Mirror’s Facebook and Twitter pages, and on the Open Rights Group Twitter account “and throughout Twitter and Facebook generally”. Reliance is placed on an interview broadcast on Channel 4 News on 21 December 2016, in which the Director of Open Rights Group, Jim Killock, was interviewed by the presenter Jon Snow about the claimant’s alleged conduct.

The Claim form was issued on 10 December 2017, and it and the Particulars of Claim were served on 17 April 2018. There is as yet no Defence. A defendant does not need to serve a defence when a summary judgment application is pending.

The defendant’s applications were made by a notice filed on 7 June 2018. The applications are supported by two witness statements of Erica Henshilwood of the defendant’s solicitors, with substantial exhibits. The claimant has also served a witness statement, made on 16 October 2018. This too has a substantial exhibit. The papers fill three large ring binders.

Ms Henshilwood’s evidence has two main aspects: “The Claimant’s public profile as at 18 December 2016” and “The Cleveland Police unlawful RIPA applications for Mr Armstrong’s telephone data”. Her evidence is mainly concerned to set out the history of the disciplinary investigations and actions taken in respect of Mr Price in and between 2011 and 2014: the reports produced, the allegations made, the findings and public statements made about such allegations, and the reporting of all these matters. Mr Wolanski, for the defendant, has taken me through a good deal of this in the course of the hearing and I shall have to say some more about it later.

The claimant’s statement, served in response to the defence applications, exhibits some of the post-publication comments on which he relies in support of his case on serious harm. I have been shown some of this material by Mr Tomlinson. It includes a tweet posted by the Open Rights Group on 19 December 2016, containing a link to the First Article and the words “’Nothing to hide, nothing to fear’: unless you are a journalist being hounded by a corrupt police chief”. There were 168 retweets of this post, and 63 likes. A transcript of the Channel 4 News interview is also exhibited to the witness statement of the claimant. Mr Killock said, among other things:

“…you know last week a journalist was revealed to have been, had his data accessed by a Police officer who was upset that he was investigating his fraudulent trips with his girlfriend to the States and that’s the kind of abuse you get when you’ve got blanket retention and no serious authorisation system… .”

The Court has to determine the single, natural and ordinary meaning of the words complained of. This is the meaning that the words would convey to a hypothetical ordinary, reasonable reader of the publication in question. The principles by which this meaning is identified are well-established. Mr Wolanski cites the classic source: the judgment of Sir Anthony Clarke MR in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 [14]:

“(1)

The governing principle is reasonableness.

(2)

The hypothetical reasonable reader 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 being 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.

(3)

Over-elaborate analysis is best avoided.

(4)

The intention of the publisher is irrelevant.

(5)

The article must be read as a whole, and any 'bane and antidote' taken together.

(6)

The hypothetical reader is taken to be representative of those who would read the publication in question.

(7)

In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …'

(8)

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

A well-known consequence of principle (5) is that a libel claim cannot be brought in respect of a defamatory headline, if the article as a whole entirely changes the picture: Charleston v News Group Newspapers Ltd. In this case, no other elaboration of any of these points is necessary although, as Mr Wolanski points out, the Court of Appeal has recently reminded us that the context and circumstances of the publication are also material to the determination of meaning: Bukovsky v Crown Prosecution Service, [2018] EWCA Civ 1529 [2018] 4 WLR 13. I should however add, for the avoidance of doubt, that it is clear law that in assessing meaning the Court does not admit or consider evidence of what people actually believed the words complained of to mean. The process is an objective one, to be carried out by reference to the words, and their context, the readership, and the other known circumstances of publication. At this stage I take no account, therefore, of the evidence adduced by either side, so far as it goes beyond those matters. The process involves review of the articles themselves.

The argument for the defendant has been that the articles all involved the telling of two or more different, separate and distinct stories. One or more of those stories had to do with the claimant. The articles referred to his “lies”, his dismissal, an affair with a colleague, mis-spent funds and other matters. Another element of the articles, quite separate and distinct according to the case for the defendant, concerned the interception of journalistic phone records.

Somewhat unusually, it is the defence case, as set out in Counsel’s Skeleton Argument, that the articles complained of contained serious defamatory imputations which “include” the following:

(1)

“that he had been sacked in disgrace from his position as Chief Constable of Cleveland Police, and was the first chief constable to be sacked in 35 years, having been “branded a liar and a bully” and having had his lies exposed” (First and Second Articles); ”

(2)

“that his sacking came after the Mirror had broken the story of his affair with a colleague, after he had lied about that affair and after he had spent thousands of pounds of taxpayers’ money on ‘jollies’ with Ms Eastwood, including spending £57,800 on the force credit card on staying at top London hotels and had splashed out on flowers, food, drink and travel (First and Second Articles);

(3)

“that he was a disgraced ex-Chief Constable who was sacked after being branded a ‘liar and a bully’, and was corrupt” (Third Article).

It is submitted, however, that references in the articles to the interception of phone records are not presented as having anything to do with the claimant.

Mr Wolanski makes three main points about the reporting of the phone interception. The arguments can be illustrated by reference to the First Article, First, and fundamentally, he argues that the interception was not presented to the reader as something to which the claimant was party, or reasonably to be suspected of being a party. He relies on the fact that, whilst “lies” and other misconduct were clearly attributed to the claimant – the “disgraced chief” – the “unlawful snooping” was attributed to the “police”, the “force”, and “bosses”. The admissions reportedly made before the Investigatory Powers Tribunal (“IPT”) are attributed to “Cleveland Police”: paragraph 6. Secondly, the related point is made that the RIPA powers are expressly said to have been misused “in a bid to find out who was leaking information about alleged racism” within the police: see paragraphs 2 and 16. That is something quite different from the misconduct. Thirdly, Mr Wolanski has another, related argument: the “date point”. The reader was told in paragraph 22 that the claimant started “a fling” with a police colleague in 2010, but paragraph 15 reported that the checking of the journalist’s calls took place in 2012.

The defendant has a fall-back argument: that, if the words complained of do bear any form of Interception Meaning, it is no graver than “Chase Level Two”: a meaning that there were reasonable grounds to suspect the claimant of involvement in the interception. He points to the reports that the force “claimed the move was done by mistake” (paragraph 8), and “denied the claim” (paragraph 17), and to what are said to be the somewhat tentative way that the IPT was presented as having “indicated” its views (paragraphs 18 and 21).

Similar lines of argument are relied on in respect of the Second Article. Reliance is placed on the similar references to “the force” and “bosses” that are to be found in this article. The defendant points to paragraph 11, which reports that a “damning” review into racism had been leaked “at the time” in 2012 when the interception took place; paragraph 15 tells the reader that it was in 2010 that the Mirror reported “how Price had started a fling”. Paragraph 11 reports the IPT’s allegedly tentative “indication” of its likely findings.

As Mr Wolanski frankly acknowledged, it is clear that not all these lines of argument can be sustained when it comes to the Third Article. The headline expressly presents the claimant as not only a “cheating cop” but one “who accessed Mirror phone records”. Mr Wolanski did not pretend that this part of the article could be understood in any other way. His argument was that by the time the reasonable reader had read and absorbed the article as a whole they would take away the message that the headline was wrong. The thrust of the Third Article, it is submitted, was that the claimant was presenting himself as a victim of phone interception, not a perpetrator. Mr Wolanski suggests that the reader would have clearly understood that to be the claimant’s position, and to be (or to be presented as) the true position. He submits that if that is so, it is inconsistent with any participation by the claimant in the Cleveland force’s snooping on a Mirror journalist.

This was, on any view, an ambitious submission. I did not find it necessary to call on Mr Tomlinson to respond to defendants’ arguments on this, or any of the articles. Applying the principles I have identified, it seems to me very clear that the ordinary reasonable reader would have taken from the words complained of, in the context of the articles as a whole, the meanings of which the claimant complains. That applies to each of the three articles.

The position is clearest, no doubt, when it comes to the Third Article. It is a rare case in which the “bane” (or poison) is clearly and unequivocally set out in the headline, but the body of the article provides so potent an antidote that the effects of the poison are completely neutralised. That may be because sub-editors, who write headlines, usually have a pretty good feel for the message conveyed by the article as a whole, and do not often end up contradicting it. However that may be, I do not accept that the body of the Third Article is at odds with the plain meaning of the headline. On the contrary.

The very first paragraph of the article itself makes essentially the same point as the headline, describing the claimant as “the cheating policeman at the centre of the Mirror data scandal”. Plainly, as Mr Wolanski concedes, the “Mirror data scandal” would be taken as a reference to the phone record interception. With all due respect to Counsel, who presented his argument with care and skill, it is not far short of absurd to argue that an article which describes an individual as the cop who “accessed Mirror phone records” and was “at the centre” of a scandal involving such unlawful access, does not implicate him in the access.

The rest of the article is consistent with the message conveyed by the headline and opening paragraph. Paragraph 4, complained of by the claimant, portrays the interception as having taken place “at the time we ran a number of stories on Price.” Paragraphs 7-11, setting out the claimant’s account of his role, do not detract from the message. In that account, Mr Price could not have been involved in the interception as it took place “after I left the force.” But in paragraphs 4 and 5 of the article, the reader has already been told the relevant chronology, according to the Mirror: the records were accessed at the time the Mirror was running stories on Price and “the long-running investigation into claims of his corruption”; and it was five months later that he was sacked. Further, the claimant’s statement that he could not recall getting information from a specific officer “in the course of the inquiry” (paragraphs 10-11) is juxtaposed and contrasted with the facts (as presented in paragraph 12) “But officers were trying to trace the source of our stories”, despite the force’s claims that this was a mistake (my emphasis). Although it is true that the Third Article made reference to officers seeking to identify those behind the leak of a damning review into racism, that is buried deeper in the article and given no emphasis. In addition, the leak is not presented as confined to the racism review. There is reference to “other confidential documents”. There is no basis on which to conclude that the meaning of the Third Article was at Chase Level Two.

Artificial though it might seem to some, legal principle coupled with the way the claim is pleaded dictates that each of the First and Second Articles must be viewed in isolation, and its meaning considered by reference to its own terms and not those of the Third Article, which was published some 24 hours after the First Article. It is certainly the case that the defamatory imputation of participation in the interception of journalistic phone records is not so explicitly presented in the earlier publications. But it is nonetheless clearly present. Read literally, the headline, the sub-headline and the first paragraph of the article all tell the reader that one thing happened “after” another: the “disgraced police chief’s lies” and other misconduct were exposed, and then the police unlawfully intercepted the reporter’s phone records. The ordinary reader of the First Article would not take these words to be informing them of a chronological sequence, of no particular relevance or interest. The reader would naturally suppose that the Mirror was suggesting a causal link between the two events.

It is common knowledge that the word “after” is typically used in ordinary speech, and in particular in journalism, to mean or indicate “because”. The reader would understand headline, sub-headline and opening paragraph to suggest that the “disgraced police chief’s lies” had been exposed, and then (because of that) the force had intercepted the reporter’s phone records. The reader would naturally suppose that the “disgraced chief”, whose photo appeared immediately beneath these words, was involved. That is the ordinary and natural interpretation. Reference to “bosses” does not help the defendant, because only one boss is mentioned - the claimant – and he, after all, was the Chief Constable. The fact that the claimant’s picture appeared three times in the article bolsters that view. So does the fact that he was pictured “yesterday”, leaving his home, and reported (in paragraph 36) as making “no comment”. The reader was made aware that the allegations of infidelity, misuse of public funds, and other disgraceful conduct were by this time four years old. The natural inference for the reader would be that the claimant had been asked to comment on the recent revelations which were the theme of the article, and that the reason he had been asked to comment was that he was implicated. The context, therefore, supports rather than detracting from the meaning which the ordinary reader would take from the words complained of.

The Second Article linked the claimant’s “cheating” with the so-called “spy scandal” on the front page. The spread had the claimant’s picture directly beneath the words “Spy Cops”. The opening paragraph of the main article used the same phraseology as before: “unlawfully snooping on the Daily Mirror after it was revealed its Chief Constable blew taxpayer’s cash to conduct an affair with a colleague” (my emphasis). The opening paragraph of Kevin Maguire’s comment piece linked the spying with journalistic investigations into “credible allegations of police corruption”. This was clearly not a reference to allegations of racism. It was, and would have been understood as, a reference to the “corruption” referred to in paragraphs 16-24 of the main article (which appeared just above and to the right of Mr Maguire’s piece.) The plain and obvious meaning of Mr Maguire’s opening paragraph is that the “cops” had spied on the Mirror because the journalists were investigating credible allegations of corruption involving the claimant. Mr Maguire’s final paragraph tells the reader that the “cops” accessed records because the Mirror was “speaking truth unto power”, which would be taken as a reference to the revelations about the claimant. The “high ranking uniforms” whom Mr Maguire says need to be “held to account” would be taken at least to include the claimant. The defendant really has no answer to these points.

The articles did present the reader with several strands of narrative. Some involved sex, money, corruption, lies, bullying, and dismissal. Another involved the abuse of police powers to snoop on journalists. But I reject as unrealistic the suggestion that the defendant presented these strands to its readers as if they were separate and unconnected matters or (as Mr Wolanski put it at one stage), as linked only by a common connection to the Cleveland Police. The strands were woven together in such a way as to present the reader with this picture: the access to journalistic phone records which the force had admitted, and which was unlawful, was prompted by the Mirror’s journalistic investigation of the claimant, and he – as the boss, and the person with most to fear – was a participant.

CPR 24.2 allows the Court to grant summary judgment against a claimant if it is satisfied that the claim has no realistic prospect of success, and there is no other compelling reason why the claim should be disposed of at a trial. The correct approach to such applications is well-established. It was set out by Lewison J in Easy Air Ltd v Opal Telecom Ltd [2009] EWHC 339 [15]:

"(1)

The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success.

(2)

A 'realistic' claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.

(3)

In reaching it conclusion, the court must not conduct a 'mini-trial'.

(4)

This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.

(5)

However, in reaching its conclusion, the court must take into account not only the evidence actually placed before it on the application for summary judgment but also the evidence that can reasonably be expected to be available at trial.

(6)

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.

(7)

On the other hand, it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it.”

“Reverse” summary judgment applications are not uncommon in libel actions. Usually, they are made on the basis that the defendant has some defence which is bound to succeed, and cannot be negatived. Sometimes the argument is “QP no malice”, that is, that the Court would inevitably find the publication protected by qualified privilege and the claimant plainly cannot prove malice. Sometimes the contention is that a defence of truth is bound to succeed, for instance because the claimant has a relevant conviction which is conclusive proof of guilt pursuant to s 13 of the Civil Evidence Act 1968. There are cases in which it has been held that the claim has no real prospect of success because the reputational impact of such a conviction makes it fanciful to suppose that the claimant could satisfy the serious harm requirement: see, for instance, Ahmed v Express Newspapers Ltd and Associated Newspapers Limited [2017] EWHC 1845 (QB). The defendant’s application notice in this case is however unusual, if not unprecedented. It says that “the claim has no reasonable prospect of success because:

(a)

The claimant is making no complaint in these proceedings of the seriously defamatory imputations within the articles that the claimant had been sacked in disgrace from his job as chief constable following findings that he has acted corruptly and dishonestly and branded a liar and a bully (“the dismissal allegations”). He could make no such complaint since the dismissal allegations were true.

(b)

In the light of the truth of the dismissal allegations if (contrary to the defendant’s case) the articles bore meanings complained of, publication of these imputations cannot have caused serious harm to the claimant’s reputation.”

Two points can be made about this wording. First, no doubt inadvertently, it mis-states the test. As Lewison J made clear, the test is absence of reality; summary judgment should only be granted if it is “fanciful” to suppose the claim may succeed. Secondly, both paragraphs (a) and (b) assert the truth of the Dismissal Allegations. So, when issued, the application would appear to have been grounded in the alleged truth of those allegations. That makes it understandable that Ms Henshilwood’s 1^st witness statement devotes so much attention to the factual background, and exhibits so much evidential material.

A rather different picture emerges from the text of Ms Henshilwood’s witness statement, however. It concludes in this way:

“… the Defendant submits that because of the Claimant’s existing reputation as a corrupt and dishonest police officer, branded a liar and a bully and who was fired for misconduct, the publication of the three articles complained of cannot have caused serious harm to his reputation … Moreover, if this is wrong, by reason of the above matters, which form background context to the publication of the article complained of, any damages … would be reduced very substantially, quite possibly to a nominal award.”

The implied references here are to the statutory threshold of “serious harm” to reputation and the established common law principles that (1) damages must not be assessed in blinkers; account must be taken of directly relevant background context to the words complained of: Burstein v Times Newspapers Limited [2001] 1 WLR 579; and (2) proof of a pre-existing bad reputation may reduce or extinguish any damages.

The legal basis for the application, as presented in the application notice and evidence, therefore seems a little confused. In the Skeleton Argument, and then again in the oral argument of Mr Wolanski, the defendant’s arguments have developed and expanded. One line of argument is that the Court can and should dismiss the claim summarily without any evidential investigation of the truth or falsity of the Dismissal Allegations, or the effect on the claimant’s reputation of previous events and publications. I shall attempt to address the various strands of argument in turn. But it is important to set them in the context of some other settled legal principles, some of which have been alluded to already.

The defence of truth:

Serious harm:

Mitigation of damages/disproof of harm:

The “Burstein” principle, referred to above, is a separate basis on which material that may moderate damages can be admitted. May LJ explained that the admissibility of material in reduction of libel damages is “heavily affected, if not determined, by questions of procedural fairness and of case management”, and that Scott v Sampson should not be allowed to exclude what he called (at [41-42]) “directly relevant background context”, including “the circumstances in which the publication came to be made” and (at [47]) “background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication.”

The factual background that emerges from the evidence involves two main strands. For present purposes, it can be summarised quite shortly. Allegations of corruption and other misconduct within Cleveland Police, made in around 2010, led to a lengthy investigation known as “Operation Sacristy”. Operation Sacristy was led by Keith Bristow, who was then Chief Constable of Warwickshire Police. This investigation concerned 20 allegations of misconduct against the claimant and the Deputy Chief Constable of Cleveland, Derek Bonnard. In August 2011, the claimant was arrested on suspicion of criminal misconduct, bailed, and suspended from his post. The arrest was reported in the media.

Just under a year later, on 18 July 2012, Mr Bristow submitted a report on his findings (“the Bristow Report”) to Nicholas Long, the Commissioner of the Independent Police Complaints Commission (“IPCC”). A Regulation 14a notice was served on the claimant in relation to 11 of the 20 topics of investigation pursued by Mr Bristow. And at least some of those matters were referred to the Crown Prosecution Service for investigation.

Separately, it appears, the IPCC investigated some other allegations of misconduct against the claimant. He was accused of misconduct in connection with the recruitment of one Natasha McLuckie to the Cleveland Police. There was an IPCC investigation into the circumstances of that recruitment. This led to misconduct charges, which were the subject of a hearing before a Panel chaired by Joanna Greenberg QC. The charges, summarised, were that the claimant had been guilty of nepotism, by facilitating the employment of Ms McLuckie without a fair and open recruitment process, in order to ingratiate himself with her father; that he had repeatedly lied about his role in her recruitment when challenged about it; and that he had encouraged a junior member of staff to conceal what he had done. The Panel’s findings and the outcome of the hearing were circulated on 4 October 2012.

The Panel found that nepotism allegations were not proved, as the claimant had only taken a minor role in the recruitment process. But the allegations of lying were proved, as was the charge of encouraging the junior to cover up. In fact, the Panel found that the claimant had told her to lie. It was on the basis of those adverse findings that the Panel determined that the claimant had been guilty of gross misconduct and should be dismissed without notice. With effect from 4 October 2012, he was dismissed from his post as Chief Constable and from the Police Force. Unsurprisingly, the claimant’s dismissal and the reasons for it were given extensive publicity.

The other allegations remained live, and the claimant remained on police bail for over 2 ½ years. On Wednesday 5 March 2014, however, the CPS announced that no charges would be brought. A News Brief containing a statement from the Director of Public Prosecutions explained that, after scrutinising the detailed reports and evidence provided by the Operation Sacristy team, the CPS had concluded that the available evidence “does not give rise to a realistic prospect of conviction” on any of the matters. The announcement gave some explanation of the reasons behind that conclusion. It said, for instance, that in relation to the cost of trips undertaken by senior staff “the evidence is not sufficient to prove dishonesty to the criminal standard”. No misconduct proceedings were brought against the claimant in relation to any of those matters, either.

Following the CPS announcement, the claimant went public with allegations that he had been the subject of a “witch-hunt”. An article in the Northern Echo for 6 March 2014 reported that he had said this:

“My extremely high-profile arrest ruined my life and my reputation and it is now clear for all to see that it was completely unnecessary, disproportionate and unlawful. The ongoing and misguided criminal investigation has been a complete waste of £5m of public money.”

The IPCC’s reaction to the CPS announcement was to publish the Bristow Report, in a slightly redacted version. It did so, on Sunday 9 March 2014, accompanied by a public statement from Cindy Butts of the IPCC. This was a surprising statement, in all the circumstances, as it announced that the misconduct for which the claimant had been dismissed was “the tip of the iceberg”. It referred to “a culture at the top of Cleveland Police which was reminiscent of a medieval fiefdom”, alleging that the claimant and Mr Bonnard had “sought to gain personal benefit from the public purse”, and that the “shameful behaviour” of the claimant and Mr Bonnard had “damaged the reputation of Cleveland Police and the police service generally”. The officers were said to have shown a “complete disregard” for their obligation to maintain the highest standards of integrity. This announcement led to some publicity as well.

On 15 December 2016, there was a hearing in the IPT concerning allegations that Cleveland had unlawfully intercepted phone data of its former officers, Matthews and Dias. During the proceedings it emerged that Cleveland Police had also obtained RIPA authorisation to intercept phone data of a Mirror journalist, Jeremy Armstrong. This, the defendant says, was the trigger for the Articles. The defendant makes clear that, “the claimant was not alleged to have been involved in this interception, and the defendant does not, in these proceedings, contend that he had any such involvement.”

The line of argument set out in the defendant’s application notice (paragraph [40] above) faces a number of difficulties. One is that the defendant has not provided any clear, consistent, or satisfactory statement of what it means by “the Dismissal Allegations”. There is no Defence or draft Defence. The summary of the Dismissal Allegations set out in the application notice differs from the version contained in Mr Wolanski’s skeleton argument (paragraph [26] above). And neither version would be at all satisfactory as Lucas-Box particulars, or as a summary in any other context, of what the defendant maintains to be true. In oral argument, Mr Wolanski made clear that his client’s case is that the articles contained “seriously defamatory” allegations at Chase Level One, that is to say allegations of guilt. But the written formulations are not an adequate statement of such a case.

Both formulations do assert, as a fact, that the claimant had lied, but neither makes clear precisely what lies are being alleged. Both formulations include assertions that others had accused the claimant of wrongdoing, which is not an acceptable method of pleading. For a defendant to assert the truth of a defamatory publication by saying, for instance, that the claimant has “been branded … a bully” is to violate the “repetition rule”. That rule holds that the meaning of a reported allegation is normally the same as the meaning of a direct allegation; and a defendant cannot establish the truth of such a publication by proving merely that the allegation was indeed made. When it comes to corruption, I am uncertain of the defendant’s case. Mr Wolanski’s formulation is that the claimant “was corrupt”, which is direct, but general. But the application notice advances a narrower case, that he was sacked “following findings that [the claimant] had acted corruptly”. That seems to contravene the repetition rule.

Further, there are allegations in both formulations the nub of which is unclear, and which are redolent of smear. What is the point of the assertion that it was true that the claimant had been “sacked in disgrace”? What matters, when it comes to an assertion of truth, is what he did. What is meant to be the significance of the claimant’s “affair with a colleague”, or the spending on “jollies”? Is one or are both alleged to be corrupt or professionally improper? Or is the “affair” allegation directed only at the claimant’s personal character? This is not made clear. Nor is it at all clear to me what is meant to be the significance of the allegation that the claimant’s sacking “came after the Mirror had broken” these stories. Is a causal link alleged? If so, what is its supposed significance? If not, and all that is being said is that the one event came after the other, I am at a loss to understand the significance that the Court is meant to attach to these facts.

These are not just “pleading points”. I have seen no evidence that the Mirror stories had any impact on the claimant’s dismissal. The available evidence is to the contrary. Knowing, as I do, that the DPP concluded that a conviction could not be obtained, and that there were never any other findings against the claimant in respect of any of the allegations the subject of Operation Sacristy, it seems to me that it would be essential for the defendant to make clear whether it is alleging that all or some of the 20 allegations reviewed in that operation were true.

This level of uncertainty as to the defendant’s factual case is not a good starting point for a summary judgment application based upon “the truth of the dismissal allegations”. In any event, it seems to me that this way of putting the application is doomed, because the underlying argument is contrary to the established principles which I have sought to summarise above. Stated simply, the core of this argument is that a claim in respect of allegation A is bound to fail because allegations B and C, of which the claimant has not complained, are true. That runs counter to the principles authoritatively established by the Court of Appeal and House of Lords in Polly Peck, Scott v Sampson and Plato v Speidel. Indeed, the facts as here alleged seem to be very close to those of Plato v Speidel, where the defendant wished to prove the claimant’s bad reputation by reference to other serious allegations in the offending broadcast, on which the claimant had not sued.

Mr Wolanski has submitted that these and other common law principles do not “necessarily” hold good in the context of the new test established by s 1 of the 2013 Act. That would seem to call for a conclusion that the principles may have been impliedly repealed. At the moment, that seems to me to be both too weak an argument for present purposes, and wholly untenable. At any rate, if such a submission is to be advanced, a summary judgment application is not the appropriate context.

On one view, that could be the end of the application, as I have disposed of the only reasoning advanced in the application notice. But I will go on to consider the alternative lines of argument advanced in the witness statement of Ms Henshilwood, the skeleton argument of Mr Wolanski, and his oral argument.

The first of these is bad reputation: see [42] above. Mr Wolanski’s skeleton argument submitted that the claimant has no prospect of establishing at trial that an Interception Meaning caused serious harm to his reputation “given his general bad reputation for serious dishonesty and bullying”. It is questionable whether this is the same sector of the claimant’s reputation as the one affected by the Interception Meaning. The fact that the imputations are, by common consent, separate and distinct would support the view that it is not. But the main problem with this line of argument is that it seeks to establish bad reputation by the prohibited method of inviting an inference of harm from damaging third party publications. Mr Wolanski puts it this way: “As a result of the very wide publicity given to these exceptionally damning matters, the claimant’s reputation was very seriously damaged, indeed “ruined”, as he himself publicly acknowledged in March 2014”. That is contrary to the principle established in Dingle. In this context, the argument that the statute has impliedly repealed the common law would face even greater difficulty, because the rule in Dingle has been reaffirmed, post-2013 Act, in Lachaux, by me and by the Court of Appeal.

There remains, of course, the Goody exception. But this claimant has not been convicted of anything. At one point, Mr Wolanski did suggest that the findings of the disciplinary panel in 2012 were comparable to the findings of a criminal Court. I am not sure I see the force of that. Misconduct proceedings are civil matters, with the civil standard of proof, conducted in private. In any event, thus far, the principle for which Goody stands has not evolved to cover any other notorious and damaging findings. The general rule remains as stated by Lord Denning in Dingle at 412:

"Nor can the report of a particular incident, even if it be notorious, be brought up against the plaintiff. If it refers to the same matter as the libel, it tends to prove a justification and is therefore not admissible in mitigation of damages but only in support of a plea of justification. If it refers to something different from the libel, it cannot be admitted because it is specific misconduct which it is not considered fair that you should bring up against him, see Speidel v Plato Films Ltd."

Any expansion of the Goody principle would be a radical change in the law. A summary judgment application is an inappropriate vehicle for suggesting anything of the kind.

The admission referred to in Mr Wolanski’s submission is the passage in the Northern Echo that I have quoted above. This stands in a different position. A defendant can of course rely on a claimant’s admission that he has a bad reputation. That would not offend any of the principles to which I have referred. But I do not regard the words relied on in this case as so obviously amounting to a confession of a ruined reputation at the time of publication that summary judgment is appropriate. The statement was made in 2014 and, on the face of it, referred to the impact of the claimant’s arrest in 2011. It was made in a particular context, in the aftermath of the CPS announcement. It is at least arguable that a trial court would regard the statement as amounting to a claim that the claimant’s reputation had been damaged beforehand but then cleared by the CPS announcement.

In his oral argument, Mr Wolanski has sought to persuade me of a different point. He submits that in a case such as the present, where complaint is made of a publication containing two or more imputations, the Court can in principle look at the imputations and their relative gravity and conclude that, having regard to the gravity of the imputations not complained of, the publication of the less serious imputation, which is complained of, would not tend to cause serious harm to the claimant’s reputation. This exercise, he submitted, could be conducted without regard to the truth or falsity of any of the imputations under consideration. It would not require any determination or assessment of the probability of truth. This was another line of argument that had not been prefigured by anything in the application notice. Nor was anything said about it in the supporting witness statement. Nor, indeed, was it covered by the skeleton argument. No objection was taken by Mr Tomlinson, however, and I should explain it a little more and explain why I reject it. This, in my judgment, is not just an inappropriate basis for a summary judgment application but also untenable.

The argument starts from the twin premises (i) that the wording of s 2(2) suggests that s 2(3) applies to a case such as the present, where some imputations are not complained of; and (ii) that the words “do not seriously harm” in s 2(3) of the 2013 Act should be interpreted and applied as meaning “do not have a tendency to cause serious harm”. From this starting point, it is submitted that the question for the Court on an application such as this is “does the imputation complained of have a tendency to cause serious harm, having regard to the defamatory tendency of the imputation(s) not complained of?”.

First, this approach involves the most convoluted and strained interpretation of provisions which are simple in their expression. On its face, s 2(3) can only apply where the defence of truth is advanced, and made out in respect of at least one imputation. That can only be the case if that imputation is complained of. Further, this approach would seem to require the Court to adopt one test for serious reputational harm in the context of s 1, and a different one in the context of s 2(3). This is contrary to generally accepted principles of statutory interpretation. The argument seems to me clearly at odds with the law as declared in Polly Peck, Plato v Speidel and Dingle. It would deprive the claimant of the freedom to choose what to complain about; it would allow the outcome of a claim in respect of one imputation to be defeated by reference to other, separate and distinct imputations; and it proceeds on the assumption that a bad reputation can, indeed should, be inferred from proof that others have published damaging statements about the claimant. As already stated, I see no basis on which to suppose that Parliament intended any such changes to the law. Indeed, the Explanatory Notes make clear that s 2(3) was not intended to alter the substantive law, but only to update the language in which it was expressed.

Mr Wolanski’s argument would involve a radical departure from the principle underlying s 5 and its successor, s 2(3). Both provisions depend on the reputational impact of one allegation, having regard to the truth of one or more others. Thus, Mr Wolanski’s argument would place the claimant who selects the grounds of complaint in a worse position than one who takes on the entire publication with all its imputations. The claimant who sued on the entire publication would have to contend with s 2(3) of the 2013 Act, but he would benefit from the presumption of falsity, and would have the right to contest any defence of truth advanced by the defendant. A claimant who sued on only one or some of a number of imputations would, in effect, be conclusively presumed guilty of all other imputations not sued upon.

The first point to deal with is the Jameel argument, which features in the application notice. It is the alternative argument advanced by Ms Henshilwood’s witness statement ([42] above), in reliance on the Burstein principle. Mr Wolanski presents it a little differently, arguing that if the Claimant were to prevail at trial on the issue of liability, “any damages he would recover would be either minimal or very substantially reduced if not completely extinguished by reason of the relevant background context of the publication, namely his dismissal for dishonesty and bullying”. He argues that it would for this reason be disproportionate in terms of time and expense to allow the additional defamatory meaning to proceed to trial. The claim therefore constitutes a Jameel abuse of process.

The precise meaning of the term “directly relevant background context”, and its application to particular facts, can sometimes be hotly debated. This is not the time or place for an elaborate discussion of the Burstein principle, and its application to the facts of this case. Mr Tomlinson accepted that the claimant’s dismissal, the reasons for it, and the publication surrounding those matters, would all have had some impact on the claimant’s reputation. It seems to me that there may well be room for at least some of the matters on which the defendant wishes to rely to be placed before the trial court, in order to ensure that the context is properly understood, and to avoid an assessment of damages conducted “in blinkers”. But the defendant’s case is not adequately formulated. Nor do I consider it clear enough at this stage either (a) that the admission of the background facts on which the defendant wishes to rely would lead to an award of only minimal damages for the publication of the imputations that I have found the articles to bear; or (b) that the resources involved in finding out would be so disproportionate that the Court should not allow the attempt.

Those are seriously defamatory imputations. The defendant has made clear that it will not suggest that they are true. No other form of defence is suggested, (apart from reliance on the matters of which the claimant does not complain). I do not see why enormous expense should be devoted to proof of the matters of mitigation on which the defendant seeks to rely. Public policy and the interests of the parties require that any trial should be kept strictly to the issues necessary for a fair determination of the dispute: Polly Peck, 1032.There is much that could be the subject of sensible admissions, cf. US Tobacco v BBC [1994] EMLR 816 (CA). The Court and the parties will be bound to engage in sensible case management. It is not obvious that, after full and proper regard is had to all contextual matters, the claimant will only recover derisory or minimal compensation. There seems to me some real force in Mr Tomlinson’s submission that the defendant’s argument comes down to this: that the claimant’s reputation is so damaged that the defendants can say anything they like about him, with impunity. That would not be a just outcome.

The defendant has raised a separate abuse of process point. Mr Wolanski has submitted that the claimant’s decision not to complain of “the dishonesty and bullying meanings” was “plainly made in an attempt to circumvent the effect of s.2(3) of the Defamation Act 2013, and the claim is therefore an abuse of process”. This argument appeared nowhere in the application notice. Nor was it alluded to in the evidence of Ms Henshilwood. It first emerged in the skeleton argument of Mr Wolanski. That is procedurally inappropriate. I could properly dismiss it for that reason. But I prefer to dismiss it on the grounds that it has no substantive merit. I can see no relevant sense in which it is fair to criticise the claimant for seeking to “circumvent” s 2(3). The predecessor of this provision was in force at the time of Plato, Dingle and Polly Peck, yet those cases established that in general a claimant is free to pick and choose the grounds of complaint, and the defendant cannot seek to defeat the claim by reference to other, separate and distinct allegations. The exercise of freedoms conferred by the law cannot generally be characterised as an abuse. I see no circumstances that would justify that label here. The fact that “directly relevant background context” is admissible weakens this line of argument still further.

It follows that the applications for summary judgment and striking out the claim are dismissed. I will hear argument on costs and directions, with a view to managing the future progress of this case in a fair and proportionate way.