Poulter v Times Newspapers Ltd

This is the trial of the preliminary issues of meaning in this libel action. It is brought by the Claimant against the Defendant. The Claim Form was issued on 30 August 2018. No defence has been served by consent of the parties. On 16 October 2108, Master Gidden ordered the trial of meaning as a preliminary issue.

The claim arises from the publication of two articles, both in the print edition of The Sunday Times and online. The two articles appeared on p.3 of the print edition of The Sunday Times of 5 November 2017. The page was dominated by a picture of the Claimant with the caption “Poulter: Practising Doctor”. The headline, spanning the whole page, was “Tory former minister accused of putting hands up MPs’ skirts”. The strapline above the headline was “Westminster Scandal”.

On the left-hand side of the Claimant’s picture was an article with the sub-headline “First reported years ago, the ex-minister, Daniel Poulter, is finally being investigated”. Under that, and printed in red, were the words “Formal Complaint”. The article’s by line was Caroline Wheeler, who is described as the deputy political editor (“the Wheeler Article”). The text of the Wheeler Article as it appeared in the print edition of The Sunday Times is set out (with paragraph numbers added) in Section 1 of the Appendix to this judgment.

On the right-hand side of the Claimant’s picture was a further, but separate, article with its own sub-headline, “I’m doing what the whips wouldn’t”. The picture by line is shown as “Andrew Bridgen” (“the Bridgen Article”). The Bridgen Article is enclosed in large, red inverted commas. At the foot of the article, appeared the following text: “Andrew Bridgen is MP for North West Leicestershire.” The text of this article as it appeared in the print edition, again, with paragraph numbers added is set out in Section 2 of the Appendix to this judgment.

Superimposed on the picture of the Claimant is a single pair of inverted commas with the words “three female MPs said they were reluctant to go in to the lift with Poulter”.

In Sections 3 and 4 of the Appendix to the judgment I set out respectively the versions of the Wheeler and Bridgen Articles as they appeared online.

At the foot of the online Wheeler Article was a section headed “Related Links”. Two articles were featured. The left hand one was a link to the online Bridgen Article. The reader was not otherwise directed towards the Bridgen Article. Correspondingly, at the foot of the Bridgen Article, the Wheeler Article was included under related links again, but the reader was not directed specifically to that article. Both online articles are marked with the sentence “This article is the subject of a legal complaint from Daniel Poulter” immediately above the text of the relevant article.

The Claimant, in his Particulars of Claim, has pleaded each of the articles as a separate publication and allocated to each article a meaning that the Claimant contends the words bear in their context.

Mr Millar QC, for the Defendant, contends that the print articles have to be read together when determining the meaning of the publication as a whole. The cause of action arises from the publication of the totality of the words complained of across the Wheeler and Bridgen Articles. He makes the same argument that the two online articles should be read together and that the court should attribute a meaning to the two articles when read together.

In his Particulars of Claim, the Claimant pleads that the meaning of the Wheeler Article (both in print and online) was:

“that there were reasonable grounds to suspect the Claimant of sexual assault by putting his hand up the skirts of at least three female Members of Parliament without their consent.”

As to the Bridgen Article, the Claimant pleads the meaning that it bore as:

“The Claimant is guilty of sexual assault by putting his hand up the skirts of at least three female Members of Parliament without their consent; alternatively, that there were reasonable to so suspect the claimant.”

The Defendant identified the meaning that it contended the words bear in its letter of 15 December 2017. In line with its submission on the proper approach the Court should adopt, the Defendant advances a meaning that it contends the Wheeler and Bridgen Article bear when they are read together. That meaning is

“that there are grounds to investigate whether [the Claimant], whilst an MP, sexually harassed or assaulted women in Parliament”.

Before determining meaning I have to resolve an issue as to the correct approach.

Ms Page QC for the Claimant argues as follows:

In support of his argument that the Court should fix one meaning, the two articles read together, Mr Millar QC contends:

I consider that Mr Millar is correct in relation to the print articles. The starting point is that the Claimant includes for complaint words from both the Wheeler and Bridgen Articles. A reader that read only one and not the other print article is not an ordinary, reasonable reader. Indeed, the reader of the Wheeler Article, in paragraph 6, is specifically referred to the Bridgen Article. The Charleston principle requires that the single meaning be ascertained by considering the words complained of in context. The ordinary, reasonable reader would have read both articles. S/he or he would not have been compartmentalised in that exercise, for example, reading the Wheeler Article and reaching a decision about what that article told him/her before moving onto the Bridgen Article and performing a separate analysis of what s/he learned from that article.

Applying Dee -v- Telegraph Media Group, it seems to me that it is really unarguable but that the two print articles must be read together to ascertain meaning.

I do not consider that this, in practice, gives rise to the sort of problem that Ms Page suggests. The different roles of the reader would perceive Ms Wheeler and Mr Bridgen having, in relation to their separate articles may have an impact on the overall meaning. The liability of separate contributors to publications, although it can sometimes give rise to tricky points of assessment, causes no problem in principle. It simply requires an application of the principles relating to responsibility for publication. The individual defendant is liable for the publication of his words. If they are juxtaposed by the publisher in a wholly different manner from that expected by the contributor, then she or he is not liable for any higher resulting meaning, only the meaning of what he published: see the discussion in Alsaifi -v- Trinity Mirror & Anor [2017] EWHC 1444 QB [64]–[66] in the judgment of Warby J and my judgment in a related case, Alsaifi -v- Trinity Mirror & Anor [2017] EWHC 2873 QB [47]–[48].

No such complications arise here. The Defendant is liable, as publisher of both articles. Had the Claimant sued only on the Bridgen Article, that would have been a choice open to him but, as Ms Page accepts, the Defendant would have been entitled to rely on the surrounding context which, for these purposes, would include the Wheeler Article on the issue of the single meaning of the Bridgen Article.

The words complained of in the two print articles should be read together, in context, to ascertain the single natural and ordinary meaning. This does not risk a return to ‘in mitiori sensu’ principle. Application of the established rules of meaning avoids that.

The position seems to me to be different in relation to the online publication. I noted in Falter -v- Altzmon [2018] EWHC 1728 QB that the rule from Charlestonthat readers are taken to read the whole of a publication has its limits in relation to links provided in an online version of an article:

It is not possible to extract any sort of rigid rule from Budu. That was a particular case on its facts. The evidence was that all three articles sued on could only be found following a search [9]. The first article was not retrievable at all by a search of the website [14]. The second and third articles could be accessed by search, but the only way of reaching the first article was if the reader went to the second and followed the link marked “see also”, which took him or her to the first article [16].

In my judgment, Budu is an example of the Court considering what, on the facts, the ordinary, reasonable reader would be taken to have read together.

Here, there was no exhortation, direction or even encouragement given to readers of either the Wheeler or the Bridgen Articles to read the other article, the availability of which was advertised under the heading “Related Links” at the foot of the relevant article. Equally, it is not immediately obvious from the link to the Bridgen Article how it relates to the Wheeler Article. Whether readers follow links provided like this is influenced by a number of factors, including: (1) their familiarity with the story or subject matter and whether they consider they already know that they are offered by way of further reading; (2) their level of interest in the particular article and whether that drives them to wish to learn more; (3) particular directions given to read other material in the article; (4) if the reader considers that he or she cannot understand what is being said without clicking through to the hyperlink. It might be reasonable to attribute items (3) and (4) to the hypothetical ordinary, reasonable reader, but (1) and (2) will vary reader by reader.

Mr Millar suggests that paragraphs 5 and 6 of the online Wheeler Article indicated to the reader that there was an “accompanying article” by Mr Bridgen. The article actually said, “Writing for the Sunday Times, Bridgen claimed…” No hyperlink was provided at this, inviting or facilitating the reader to go to the article. It is to be noted that, unlike the print version of the Wheeler Article, the reader is not directed to the Bridgen Article. The paragraphs themselves give readers a summary of what Mr Bridgen had said, together with quotations. The reader was not driven to the conclusion that she or he was not getting the whole story if she or he limited his or her reading to the instant article.

Applying the principle from Dee, it seems to me that the “Related Links” were not sufficiently closely connected as to be regarded as a single publication. It would not have been obvious to readers of one of the online articles that if read alone, it did not constitute or purport to be the full story. On the contrary, the Bridgen Article could easily have appeared to readers to be self-contained and the Wheeler Article itself summarised the Bridgen Article. The “Related

In my judgment, the online articles are separate publications and I will determine the single meaning of each of the online articles.

There has been no dispute as to the law and the proper approach to ascertaining meaning. I will apply the well-established legal principles as they are set out in my judgment in Brown -v- Bower [2017] 4 WLR 197 [10]–[17]. They are very familiar.

Conveniently, in the same judgment, in [19] – [25] and [28] – [31], that case also explains and sets out what is called the repetition rule, which is relied upon by Ms Page in particular, in relation to the effect of the Bridgen Article.

Ms Page points out that the Explanatory Note 15 to s.2 of the Defamation Act 2013 (the new statutory truth defence) expressly recognised the continuing effect of the repetition rule. The paragraph said this:

“15.

There is a longstanding common law rule that it is no defence to an action for defamation for the defendant to prove that he or she was only repeating what someone else had said (known as the ‘repetition rule’). Subsection (1) focuses on the imputation conveyed by the statement in order to incorporate this rule.”

Mr Millar has relied upon Cruddas -v- Calvert [2014] EMLR 5 [15]–[16] in support of his resistance of any suggestion that the articles bear a meaning (at whatever Chase level) that the Claimant was guilty of a criminal offence, i.e. sexual assault.

Applying the Chase taxonomy, the Claimant’s meaning is a Chase level 2 for the Wheeler Article and Chase level 1 (with Chase level 2 as an alternative) for the Bridgen Article. The Defendant’s meaning is a Chase level 3 meaning.

Ms Page also referred me to the paragraphs in Yeo -v- Times Newspapers between [97]–[98] as to the proper approach to adopt as to meaning.

Ms Page contends that, when read together, the print Wheeler and Bridgen Articles allege that the Claimant is guilty, or, alternatively, reasonable grounds to suspect that he is guilty, of sexual assault.

She argues that the articles are not neutral or balanced reports; such as to indicate to readers that no judgment should be reached or that there were two sides to the story. In particular, she contends that the Bridgen Article is a one-sided denunciation of the Claimant. He is portrayed as someone who has evaded public exposure. The reader is given no reason to doubt the credibility of the Claimant’s accusers. On the contrary, she submits the complainants are three MPs. Mr Bridgen is so convinced of the truth of the allegations that he has risked his own popularity (and perhaps his career) by exposing the Claimant.

The effect, she submits, of the repetition rule is that the meaning of guilt is not diluted by the frequent references to “allegations”. She submits that “allege” is just another verb to convey that a statement has been made by another person.

She relies in that respect on Simon Brown LJ’s decision in Stern -v- Piper [1997] QB 123 at 135H. She submits the Bridgen Article proceeds entirely on the basis that the allegations of the three MPs are true. Mr Bridgen has decided to “call out” the inappropriate behaviour of

Ms Page submits that the overall message from the Bridgen Article is that the three MPs are victims of sexual assault; the Claimant is the perpetrator of those assaults and he will only be stopped from causing further harm and damage to the reputation of Parliament if he is publicly exposed. There is nothing, she submits, in either article which invites readers to suspend judgment, and neither article gives the reader any reason to doubt the MPs’ claims.

In the Wheeler Article, although recognisable as a report of the allegations, nevertheless presents the complaints of the three MPs as a direct report of what they are said to have told Mr Bridgen. Ms Page suggests that there is an embellishment in the first paragraph in the words that “at least three MPs” had complained about the Claimant’s behaviour, leaving the reader to speculate that there may be more victims. There is very little antidote. The Claimant is said to have “chosen not to comment” and that it is “understood” that he denied the allegations.

Mr Millar, in support of his argument that the Court should adopt the Chase level 3 for which he contends, argues:

As to the Chase levels, Mr Millar contends:

Determining meaning is all about the context in which statements are made. This is particularly so in relation to the divide between articles that allege guilt of wrongdoing and those that suggest only reasonable grounds to suspect or grounds to investigate. An overly analytical approach is likely to lead the Court into error. Readers do not pore over articles like lawyers, and there is a danger that submissions made by parties on rulings on meaning like this stray over that line. That is why I make it my practice to read the article complained of before I read submissions or, indeed, the meanings contended for by the parties. That allows me to capture what my impression of the article is as an ordinary reader before considering other matters. Reflecting, as it does, the meaning the notional, ordinary, reasonable reader would understand the words to bear, the exercise has necessarily an impressionistic element to it. It is the overall impact, the lasting impression that the ordinary, reasonable reader takes away, that is the best guide to the meaning that the article bears.

In my judgment, when read together, the articles clearly suggest that the Claimant is guilty of sexual assault, as alleged by the three MPs. Although couched in the language of accusation and allegation, the overall effect is clear. The particular factors that lead me to this conclusion are:

What is the reader to make of the fact that the Claimant is to be investigated? In my judgment, readers would not conclude that the investigation was to decide whether the Claimant was guilty of not of the sexual assaults, but more likely what or would or should be done about. The Claimant was presented as a test of what Parliament was going to do about people like him who are guilty of sexual harassment. Insofar as any reader might have thought that the investigation might involve a formal adjudication of the complaints about the Claimant, the case against him was overwhelming. It is not possible to avoid an allegation of guilt simply by reporting that someone is subsequently going to stand trial or face an investigation. For example, if an article publishes the accounts of five eye witnesses, all of which are consistent that X stabbed Y in a town square, the resulting article is going to convey the meaning of guilt if it provides no reason to doubt the eye witnesses’ accounts that are set out. Reporting that X has been arrested and charged (and even that he has vigorously denied the charge) and is awaiting trial, does not affect that.

For those reasons, in my judgment, the meaning of the print publication of the two articles is: “the claimant was guilty of sexual assault by putting his hand up the skirts of three female Members of Parliament”.

The articles do not, themselves, address the issue of whether the conduct is or might be criminal. I doubt any reader would fail to appreciate that such conduct was serious and could possibly amount to a criminal offence, but that goes to the gravity of what was being alleged. It is unduly legalistic to include it in the meaning itself and neither party does so.

Turning to the online publications, for the reasons I have explained above the online version of the Bridgen Article is also:

“the Claimant was guilty of sexual assault by putting his hand up the skirts of three female Members of Parliament”.

The assessment of the meaning of the online Wheeler Article, in isolation, might not have been so clear cut. However, I do not need to decide this point. The Claimant has limited the meaning he attaches to this article as Chase level 2. I therefore find that the meaning of the online version of the Wheeler Article is:

“there were reasonable grounds to suspect that the Claimant was guilty of sexual assault by putting his up the skirts of three female Members of Parliament”.

Had I been deciding the meaning of the online articles if they had to be read together as a single publication, then the meaning would have been the same as I have found for the print versions of the articles.