Hewson v Times Newspapers Ltd & Anor

These libel proceedings are brought by the Claimant against the publishers of The Times and MailOnline for articles published on 12 April 2017. The text of the articles complained of is set out in the Appendix to this judgment with paragraph numbers added in square brackets. The words selected for complaint by the Claimant are shown underlined in each article.

The Claim Form was issued on 10 April 2018. The Particulars of Claim are dated 12 June 2018. Following amendment, for which permission was granted on 8 March 2019, the meaning that the Claimant contends that both articles bear is:

“… the Claimant committed, or it almost certain that she committed, or it is highly likely or reasonably suspected that the Claimant committed the following criminal acts:

(a)

threatened to murder a law student several times by personally telephoning him to make death threats;

(b)

impliedly threatened to cause physical harm to the law student’s ex-partner and his daughter by sending the law student a picture of his address, his ex-partner’s details and a picture of his daughter’s head and, as part of her campaign to intimidate and frighten him, further harassed him by pestering him so incessantly with nuisance phone calls that he has been left feeling frightened, alarmed distressed and anxious to the point that his exams might be jeopardised”.

Neither Defendant has filed a Defence. Instead, following an Application, by Order of 20 December 2018, the Court directed that meaning be tried as a preliminary issue. The time for the filing a Defence has been extended until the preliminary issue has been determined.

The First Defendant contends that TheTimes article bears the meaning:

“… that there were grounds to investigate whether [the Claimant] has committed the acts which are attributed to her in the article by Mr Desai and Ms Phillimore”

The Second Defendant contends that the MailOnline article bears the meaning:

“(1)

The Claimant had been the subject of an investigation by the Metropolitan Police over allegations that she engaged in harassment of Sarah Phillimore and had been issued with a harassment warning from the Metropolitan Police in light of those allegations.

(2)

There were sufficient grounds to investigate the Claimant of having engaged in the harassment of Sarah Phillimore, and Ms Phillimore’s supporters such as Mehul Desai, by making repeated abusive and threatening communications towards and about them (including in Mr Desai’s case, death threats).

(3)

There had been at least 3 complaints to the Bar Standards Board concerning the Claimant’s behaviour in this regard.”

The Claimant has also complained that the First Defendant published a link to The Times article on its Twitter account. The text of the Tweet was “A barrister has been handed a harassment warning over alleged ‘death threats’ to student”. The Claimant contends that readers who read the Tweet “in conjunction” with The Times article would have understood the “relevant words” to bear the same meaning as The Times article.

The Claimant contends that the relevant readers would also have read The Times article. As no case on reference is pleaded in relation to the Tweet, the Claimant’s case depends upon the Twitter publishees following the link to the article. As such, the meaning will be the same as The Times article. Practically, all the Tweet does is increase the number of publishees of the article.

In determining the meaning, I apply the well-established principles set out in Koutsogiannis -v- The Random House Group Ltd [2019] EWHC 48 (QB) [11]-[15].

In this case, the following principles assume particular importance:

Mr Bennett QC has emphasised in this case the capacity of headlines to affect the overall meaning of a publication. Although each article has to be read as a whole, as Lord Nicholls observed in Charleston -v- News Group Newspapers Ltd [1995] 2 AC 65, 72 and 74:

“Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralise it but also on the manner in which the whole of the relevant material is set out and presented…

… Those who print defamatory headlines are playing with fire. The ordinary reader might not be expected to notice curative words tucked away further down in the article.”

Mr Bennett QC has also objected to the form of both Defendants’ meanings.

In response, Mr Glen has relied on Lord Devlin’s speech in Lewis -v- Daily

As it is for the Court to determine the single meaning of the article, argument as to the form in which a party articulates the meaning for which s/he contends is unlikely to have much bearing.

Finally, there is a dispute between the parties as to whether the Claimant can isolate a distinct sting or whether the articles bear a general meaning. The Claimant has limited her complaint to the words of the articles which concern Mr Desai and she has pleaded a meaning that relates only to him. The Defendants contend that the articles

Beyond the familiar yardstick of whether there is a “common sting”, Mr Glen submits that the authorities identify the following as indicators of whether the ordinary reasonable reader would understand a wider or more general meaning:

The trial of preliminary issues ordinarily take place at an oral hearing. If there is an evidential dispute (particularly with oral evidence of witnesses), the only way of resolving the issue is by way of a conventional trial in Court.

In a libel action, where the natural and ordinary meaning of a publication is determined as a preliminary issue, no evidence beyond the words themselves is admissible to determine the meaning: Koutsogiannis [12(x)]. Further, prolonged oral submissions on the meaning of the publication are not consistent with the principle that the Court should not be engage in an over-elaborate analysis: Koutsogiannis [12(iv)]. Occasionally, evidence proving the existence of contextual material can be admitted, but in most cases that will not be contentious: see Greenstein -v- Campaign Against Anti-Semitism [2019] EWHC 281 (QB) [16].

These principles mean that, at least in theory, there is no practical reason why the natural and ordinary meaning of a publication cannot be determined by the Court, without a hearing, based on the parties’ written submissions.

Such a course would certainly further the overriding objective by saving expense and ensuring that a case is dealt with expeditiously and fairly. Where appropriate, the Court should adopt new methods of dealing with cases that will reduce costs. The Court already has extensive powers of case management and has a duty actively to manage cases under CPR Part 1.4(1). Active case management includes, under CPR 1.4(2):

“… (b) identifying issues at an early stage; …

Court hearings are frequently costly. Delay can be caused whilst the matter awaits the fixing of a hearing. There is much to be said for the Court dealing with matters, in suitable cases, without a hearing. However, when the Court determines matters on paper and without a hearing, there is a potential impact on the principle of open justice. In Church -v- MGN Ltd [2012] 1 WLR 284, Tugendhat J observed:

Church was an example of a determination of whether the words complained of in a defamation claim were capable of bearing a pleaded meaning under CPR Part 53 PD §4.1. Such applications were commonplace when defamation claims were tried by juries; the ultimate issue of what the words actually meant being a matter of fact reserved to the jury (see discussion in Bokova [3]-[10]).

Tugendhat J considered that the potential range of meanings that the Court could find the words were capable of bearing was a factor that militated against determining such applications on paper [36].

As the Judge recognised [41], he had not received detailed submissions of the parties in the case as to the impact of the open justice principle. In particular, he did not receive submissions as to what other measures might be adopted properly to respect the important principle of open justice that the Judge had identified.

In my judgment, if a Judge considers that the determination of meaning as a preliminary issue is appropriate in a case, then I believe the practical difficulties that Tugendhat J identified of determining the issue without a hearing can be overcome. First, the parties can still make submissions before the Court makes the determination; but those submissions are conveyed in writing rather than orally. Second, the issues to be determined are of narrow compass and the written submissions need not be lengthy. Third, the Court’s task is to determine the single meaning (not to adjudicate potentially on a range of meanings). Fourth, that is done by considering the words of the publication alone and no evidence beyond that is admissible. Fifth, as an overelaborate analysis is to be avoided, determining meaning based on written submissions is more likely to conform to this principle.

In this case, the parties consented to the Court determining the meaning, without a hearing, based on written submissions. Of course, their consent does not resolve the important issues of open justice that Tugendhat J identified. This is the first time that the Court has dealt with a preliminary issue in this way, but I consider that these concerns can also be overcome by the Court adopting the following procedure:

In that way, the Court’s decision, and the parties’ submissions that led to it, are transparent and open to full public scrutiny. Indeed, it is arguable that written judgments (because of their wider availability through services like BAILII) are more effective at promoting open justice than the Judge giving an ex tempore judgment, perhaps in a court room where there are present no members of the public or media.

As I have said, in this case, the procedure has been adopted by consent. It leaves open for consideration on another occasion whether, if the parties do not consent, the Court could nevertheless direct, in an appropriate case, that a preliminary issue on meaning should be determined, without a hearing, on the basis of written submissions. It may well be a procedure that is not suitable for all cases, for example, where one or more of the parties is not legally represented.

I will summarise the parties’ submissions briefly.

In relation to The Times article, Mr Bennett QC for the Claimant submits:

In relation to the MailOnline article, given the substantial similarity in the text, he repeats the points made in respect of The Times article but additionally he makes two further submissions:

Mr Price QC for the First Defendant submits:

Mr Glen, for the Second Defendant, contends:

Although there is substantial similarity between them, I have treated each article separately and assessed the meaning individually. I read each article through once, and noted the impression each had on me, before turning to consider the submissions of the parties. I was in no doubt that both articles alleged guilt, the more nuanced question was “of what?”.

I reached the decision about the level of the meaning without analysing it in terms of the legal principles that govern the assessment of meaning, but a consideration of those principles reinforces the conclusion I reached. This is not a bane and antidote case; it is practically all bane and no antidote. It is also a paradigm example of the proper application of the repetition rule.

The starting point is that these articles contain and report the allegations of others. The repetition rule applies to them. The rule represents a principle that is “deeply embedded” in the law of defamation; Shah -v- Standard Chartered Bank [1999] QB 241, 261Gper Hirst LJ.

The rule has been stated in numerous authorities, but two passages from the decisions of the Court of Appeal in Stern -v- Piper [1997] QB 123 andShahsuccinctly describe the rule and its effect:

I reject Mr Price QC’s submissions as to the effect of paragraph [30] in Brown -v- Bower. As is clear from the full discussion in [19]-[32], I was certainly not casting doubt upon the very clearly established principles of the repetition rule. The underlined passage from May LJ above establishes that publications which baldly restate the allegations of others are likely to amount to a republication of those allegations. For the purposes of meaning, therefore, the practical effect is that the allegations are “adopted” by the republisher. This form of adoption – whatever the meaning of that word in relation to Reynolds privilege (and see discussion of the repetition rule in the context of Reynolds in Mark -v- Associated Newspapers Limited [2002] EMLR 38 [33]-[35]) – does not require a publisher actively or expressly to adopt the allegations. The point was made clearly in the passage from Macoll JA in

Mr Price QC’s submissions seek to impose a new hard and fast rule for the determination of meaning. In effect, without active “adoption”, the publication cannot bear a level 1 meaning. A statement: “X stated Y stole money from him” could only produce a level 1 meaning if what was published was “X stated correctly that Y stole money from him” or “X stated Y stole money from him; and this has been established”. Whilst express adoption like that is highly likely to produce a level 1 meaning, such adoption is not necessary for such a meaning to result. That is not the law and, properly understood, nothing I said in Brown -v- Bower is capable of supporting that submission. Indeed, that case does not overthrow or cast doubt upon the application and effect of the repetition rule. The decision simply restated that the rule is not to be “applied mechanistically” and that it “takes its place alongside all the other matters to which the court must have regard when determining meaning”: [28]. For example, the interrelation between the repetition rule and the principle of bane and antidote was considered in Mark -v- Associated [36]-[44].

Mr Price QC’s submissions resurrect the heresy that bald reports of the allegations of others necessarily bear a meaning lower than the original allegations because they can be seen to be reports. That argument received no support in Brown -v- Bower, indeed it was expressly rejected[32]:

“When the authorities speak of rejecting submissions that words repeating the allegations of others bear a lower meaning than the original publication that is a rejection of the premise that the statement is less defamatory (or not defamatory at all) simply because it is a report of what someone else has said. That kind of reasoning is what the repetition rule prohibits when applied to meaning. The meaning to be attached to the repetition of the allegation has still to be judged, applying the rules of interpretation I have set out above, looking at the publication as a whole.”

There are myriad ways in which the allegations of others can be reported in a publication. It is impossible to lay down hard and fast rules. Over and over again the authorities make clear that it is the effect of the publication overall that matters. In determining meaning, the cardinal principle is that “it is the overall effect of the article that counts”: Poulter -v- Times Newspapers Ltd [2018] EWHC 3900 (QB) [43]-[44]; and Poroshenko -v- BBC [2019] EWHC 213 (QB) [28].

The effect of the repetition rule is that the use of verbs like “alleged” or “claimed” (however often they are repeated in a publication) is unlikely, initself, to insulate a publisher from the effect of the rule. If the impact of the repetition rule on the meaning of reports of allegations made by others is to be mitigated or avoided, the material that has that effect must be found elsewhere in the publication.

The classic example of such mitigation is an article that contains two sides of a dispute. A direct application of the repetition rule to part of an article that reported the allegations defamatory of the claimant would produce a level 1 meaning. But that would be to ignore the context and the fact that the Claimant’s rebuttal of the charge has also been included. How far that goes to reduce (or even extinguish) the meaning that application of the repetition rule would otherwise produce depends upon the context of the publication as a whole. If an article reports that Y has said that X had stolen money from him/her, but goes on to state that Y has previously made the same allegation which was shown to be false; that Y has a personal grudge against X; and Y has told Z that he has made up allegations against X to get back at him for some earlier dispute, the result will almost certainly be that the article bears no defamatory meaning of X. If anything, the article is more likely to defame Y. Examples like that are rare, but they do exist. A more common example is where an article presents both sides in a way that the reader will see as roughly even-handed; or certainly not containing any steer as to which side should be believed. At that point, the ordinary reasonable reader can only suspend judgment on whether the claimant is guilty. Instead, and depending on context, s/he may well alight on either a Chase level 2 or 3 meaning. I am deliberately using straightforward examples and a level of generality to demonstrate the point, but it cannot be repeated too often: context is everything.

Here, there is no real mitigating effect in the context of either article; there is nothing of any substance for the reader to put into the balance against the clear statements from Mr Desai and Ms Phillimore of the Claimant’s wrongdoing.

As to whether each article conveys a general as opposed to distinct sting, I accept the submissions of Mr Glen. The ordinary reasonable reader would understand the meaning to embrace a general allegation that the Claimant had been guilty of repeated harassing behaviour. Mr Glen is correct that the allegations overlap and concern the same type of conduct. Whatever distinction would be drawn between the relative seriousness of the incidents goes not to whether there is a general sting, but the additional specific elements of the meaning which arise from the separate allegations.

I reject Mr Price QC’s submission that the Court should postpone determining whether the article conveys a general sting until a truth defence has been pleaded (see [31(xi)(b)] above). That is wrong in principle:

Finally, I reject Mr Bennett QC’s submissions that a finding of a general sting would impermissibly frustrate the Claimant’s intention of complaining only of the alleged incidents concerning Mr Desai.

For the reasons I have given, I find the meaning of The Times article to be:

“the Claimant was guilty of repeated acts of harassment and online bullying, including:

(1)

making death threats to Mehul Desai and subjecting him to online abuse and persistent nuisance phone calls that caused him to be frightened, alarmed, distressed and anxious;

(2)

sending Mr Desai pictures that he found distressing of his home address and his daughter’s head and details of his ex-partner’s address; and

(3)

repeatedly directing abusive language at Sarah Phillimore online over a number of months, that was both serious and frightening.”

I find the meaning of the MailOnline article to be:

“the Claimant was guilty of repeated acts of harassment and online bullying, including:

(1)

making death threats to Mehul Desai and subjecting him to online abuse and persistent nuisance phone calls that caused him to be frightened, alarmed, distressed and anxious;

(2)

sending Mr Desai pictures that he found distressing of his home address and his daughter’s head and details of his ex-partner’s address; and

(3)

repeatedly directing abusive language at Sarah Phillimore over a period of some 4 months via the social media network Twitter.”

Meanings (1) and (2) are common to both articles. Meaning (3) is slightly different between the two articles because of the differences in text. I do not regard the differences as being in any way material in terms of seriousness, but it is right that I reflect them.

The Times, 12 April 2017

Police have issued a harassment warning to a barrister amid allegations that she waged acampaign of online bullying, abuse and ‘death threats’ against a law student.

Barbara Hewson, 55, who came to prominence after the Jimmy Savile scandal when shecalled for the age of sexual consent to be substantially lowered, is the subject of mountingcomplaints to the Bar’s regulator.

At least three complaints have been lodged with the Bar Standards Board, The Times haslearnt.

It has also emerged that Ms Hewson, a Court of Protection, and human rights specialist, haswithin the past few weeks left her chambers, 1 Gray’s Inn Square, in London. Thechambers, which is also home to the civil liberties lawyer Michael Mansfield, QC, declinedto comment on her departure, apart from saying she had left for ‘personal reasons’.

In a 22-page complaint to the standards board, seen by The Times, Mehul Desai, a studentat Nottingham University law school, claimed that he had ‘received death threats and abuseover the phone’ from Ms Hewson.

He said that the barrister sent him ‘a picture of my address, my ex-partner’s details and apicture of my daughter’s head’. The student has been left so distressed that his exams maybe jeopardised. He alleged that the lawyer pestered him so incessantly with nuisance phonecalls that he was left ‘feeling frightened, alarmed, distressed and anxious’.

The dispute allegedly grew out of Mr Desai’s support for Sarah Phillimore, a family lawbarrister at St John’s Chambers in Bristol. Ms Phillimore is a well-known campaigner onchild protection issues who has frequently crossed swords with Ms Hewson on socialmedia over their opinions on investigations into alleged historical child abuse.

Mr Desai alleges that Ms Hewson contacted him in an attempt to obtain ‘dirt’ on MsPhillimore. When the law student refused to help her, he claims that he was subjected to anonslaught of online and other abuse. In his complaint, Mr Desai pointed to an alleged seriesof comments made by Ms Hewson about Ms Phillimore.

According to the file submitted to the regulator, Ms Hewson directed a barrage of abusive language at Ms Phillimore, including calling her a ‘c***’, ‘Nazi’, as well as referring to her and her Twitter sympathisers as ‘f***wits’ and ‘sociopathic bunny boilers’.

Ms Phillimore told The Times that, ‘following months of serious and frightening harassment’ by Ms Hewson, she registered a complaint with the police. The Metropolitan Police confirmed that on March 1 ‘a 55-year-old woman, was issued with a harassment warning”.

Such warnings have no legal standing and do not establish wrongdoing, but are used by police as a response to allegations of low-level harassment. There has been no finding against her.

Mr Desai also told the Bar authorities that he had registered a complaint with Leicestershirepolice. His complaint was submitted to the standards board at the end of last month.

At least one other complainant has contacted The Times alleging that Ms Hewson has engaged in online bullying. Ms Hewson did not respond to requests for comment.

The standards board said it would not comment ‘as to whether or not individual barristers are the subject of a complaint or a disciplinary investigation’. It would also not comment on whether a police harassment warning would automatically trigger disciplinary proceedings against a barrister.

The board has the power to refer conduct that it deems has brought the profession into disrepute to an independent disciplinary tribunal, which has power to disbar people it finds guilty.

Ms Hewson has regularly aroused controversy. In the Daily Mail last year, she said: ‘Our criminal justice system has swung too far the other way. It now assumes that an accusation by a woman is tantamount to proof of guilt’.

MailOnline, 12 April 2017

Barbara Hewson, 55, has been issued a harassment warning from the MetPolice

Nottingham law student Mehul Desai said he suffered ‘death threats andabuse’

Lawyer Sarah Phillimore also claims to have been harassed on social media

Police have issued a harassment warning to a top barrister amid allegations she made ‘deaththreats’ to a law student.

Barbara Hewson, 55, who was once dubbed ‘the bolshiest barrister on Twitter’ and sparkedcontroversy after calling for the age of consent to be substantially lowered, is also accusedof abuse by another lawyer.

She has been the subject of at least three complaints with the Bar Standards Board,according to The Times.

In a 22-page complaint Mehul Desai, a student at Nottingham University law school,claimed that he had ‘received death threats and abuse over the phone’ from Miss Hewson.

He said the barrister had sent him ‘a picture of my address, my ex-partner’s details and apicture of my daughter’s head’.

The student has been left so distressed that his exams may be jeopardised, it is claimed.

He alleged that the lawyer pestered him so incessantly with nuisance phone calls that hewas left ‘feeling frightened, alarmed, distressed and anxious’.

It is reported that the dispute allegedly grew out of Mr Desai’s support for SarahPhillimore, a family law barrister at St John’s Chambers in Bristol.

Both Miss Phillimore and Miss Hewson have clashed on social media over their opinionson investigations into historical child abuse.

Mr Desai alleges that Miss Hewson contacted him in an attempt to dig up ‘dirt’ on MissPhillimore. When he refused to help her, he claims he was subject to an onslaught of onlineand other abuse.

According to the file submitted to the regulator, Miss Hewson has directed a slew of abusive language at Miss Phillimore including calling her a ‘Nazi’ and referring to her sympathisers as ‘sociopathic bunny boilers’.

Miss Phillimore told The Times that after ‘months’ of harassment she reported the barrister to the police, who then issued Miss Hewson with a harassment warning.

It has also emerged that Miss Hewson, who is a Court of Protection and human rights specialist, has left her chambers at 1 Gray’s Inn Square, London within the past few weeks.

Barbara Hewson has never shied away from sharing her opinions on controversial matters.

In the wake of the Jimmy Savile abuse allegations, Miss Hewson called for the legal age of sexual consent to be lowered to 13 and an end to the ‘persecution of old men’.

Miss Hewson said rape victims had a ‘moral responsibility’ and cases were rarely straight forward where one party was ‘utterly guilty’ or ‘utterly innocent’.

And she described Scotland Yard’s investigations into historic sexual abuse of ageing celebrities accused of sexual abuse as a ‘witch hunt’.

In September 2016 Miss Hewson said it was time to ‘put an end to the whole fiasco’. Writing for the Daily Mail, she called for the inquiry into historic abuse to be closed.

The chambers, which is also home to the civil liberties lawyer Michael Mansfield, QC, declined to comment on her departure, apart from saying she had left ‘for personal reasons’.

The standards board said it would not comment ‘as to whether or not individual barristers are the subject of a complaint or a disciplinary investigation’. It would also not comment on whether a police harassment warning would automatically trigger disciplinary proceedings against a barrister.

It is not the first time Miss Hewson has aroused controversy.

She caused outrage after the Jimmy Savile abuse allegations when she called for the age of consent to be lowered to 13 and for an end to the ‘persecution of old men’.

She has also questioned whether rape victims are ‘utterly innocent’ and suggested that they can have a ‘moral responsibility for the crime’.

Miss Hewson has previously won Barrister of the Year award from the Lawyer magazine after she fought for the rights of pregnant women against compulsory treatment.

The Chambers UK guide has variously described her as ‘bright, committed and passionate’, ‘well-respected’, ‘highly diplomatic’ and ‘a tough opponent’.

A spokesman for the Metropolitan Police said: ‘On 2 February an allegation of malicious communications was transferred to the Metropolitan Police from another force.

‘The victim, a 46-year-old woman, alleged she had been harassed via a social media network (Twitter) between August 2016 and January 2017.

‘The allegation was passed to officers in Islington to investigate.

‘On 1 March the alleged suspect, a 55-year-old woman, was issued a harassment warning. The victim was informed of this outcome.’