Sellers v Secretary of State for Foreign, Commonwealth And Development Affairs & Anor

This is my judgment on a number of preliminary issues in a libel claim based on three emails, which I have appended to this judgment (with paragraph numbers added). The emails are dated 14 January 2019, 7 May 2019, and 13 May 2019 and I will adopt the same shorthand as the parties by referring to these communications as the First Email, the Second Email and the Third Email, respectively. I will describe the content of the emails in more detail in due course.

By Order dated 9 October 2020, Nicklin J directed the determination on written submissions of the issues of meaning and defamatory tendency.

I have received detailed and helpful written submissions dated 9 November 2020 from Counsel for the Claimant and the Defendants. I have taken into account those submissions but on issues of meaning it is my task to determine what the emails would mean to the hypothetical ordinary and reasonable reader.

In applying this test, I have gratefully adopted the summary of the principles in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB); [2020] 4 WLR 25 at [11]-[12]. The relevant law was not in dispute and both parties laid appropriate emphasis on the principle that in the determination of meaning, the “context” in which the statement complained of was published is of considerable importance. I was also referred to Bukovsky v CPS[2017] EWCA 1529; [2018] 4 WLR 13 and Stocker vStocker[2019] UKSC 17; [2020] AC 593, as well as a number of other cases.

I will begin with a broad description of the factual background. Prior to 2019, the Claimant, Mr Sellers, had been employed by the Second Defendant, The British Council, for some 27 years. Since 2014 he had been its Country Director in Italy, based in Rome.

As part of his duties as Country Director in Italy, Mr Sellers was required to work closely with the British Embassy, the Foreign and Commonwealth Office’s representative in Italy, including Her Majesty’s Ambassador in Italy, senior members of the Embassy and employees of the Embassy, all of whom I understand were based at the British Embassy in Rome.

Mr Sellers’ employment with The British Council ceased on 7 May 2019. He submits that for present purposes, it is proper to proceed on the footing he was dismissed by The British Council from his employment because of his alleged conduct addressed in the First Email. This was an email sent on 14 January 2019 by the Minister and Deputy Head of Mission at the British Embassy in Rome, Ken O’Flaherty, (for whom the First Defendant is liable) to three employees of the Second Defendant, Johannes Etten, Rebecca Walton and Sanjay Patel, with the subject line “Personal and in confidence: Investigation”.

The First Email followed a complaint of sexual misconduct made about Mr Sellers by someone working at the Rome Embassy. This person, the complainant, is described as

“ZZ” in the copy of the First Email appended to this judgment. This designation is pursuant to an earlier Order of this Court, and is intended to protect her identity as an alleged victim of sexual assault.

As can be seen from this document, the First Email was a response to a request for information by Mr Etten, who had been appointed to be a member of the case panel charged with investigating ZZ’s complaint.

The Second and Third Emails were sent some months later after disciplinary proceedings in relation to the above complaint had been taken against Mr Sellers and around the time that he ceased being employed by the Second Defendant. There is no evidence before me about those proceedings.

The Second Email was sent on 7 May 2019 by Ms Walton, the Second Defendant’s Regional Director EU Europe, to various group email addresses of the Second Defendant’s organisation, with the subject line “News re Italy”.

The Third Email was sent on 13 May 2019, by Mr O’Flaherty to various group email addresses within the First Defendant’s organisation, with the subject line “Italy Network: key themes for w/b 13 May”.

I will now turn to each of the emails and set out the competing cases as to meaning advanced by the parties, followed by my own conclusion.

Mr Sellers’ case is that the natural and ordinary meaning of the First Email was: “There are strong grounds to suspect that Paul Sellers, the Director of The British Council Italy, had a party at his home on Sunday, 16^th December 2018, and which was attended by members of staff of The British Council and The British Embassy, when, whilst drunk, he sexually and deliberately

The First Defendants’ case is not so far from this. They say the meaning is as follows:

Both parties have made detailed submissions in support of their cases as to meaning but ultimately, I consider this is a relatively straightforward issue given the narrow range of dispute. I bear in mind that this is a professional communication as opposed to casual chat as in social media and that the recipient will consider the contents with some care.

Both parties advance a meaning which picks out two strands from the First Email, namely (i) an allegation related to a possible sexual assault and (ii) an allegation related to Mr Sellers’ recent behaviour around others. In terms of the level of gravity, both parties contend that, in relation to the sexual assault element, the First Email conveys a Chase level 2 meaning, albeit that Mr Sellers contends it conveys “strong grounds to suspect” the specified conduct. I agree that a Chase level 2 meaning is conveyed.

The context for the First Email and the circumstances of its publication are the principal reasons for this. The immediate context is set by the email which preceded it, sent by Mr Etten of the Second Defendant and copied to the two other recipients of the First Email, Ms Walton and Mr Patel. In that email Mr Etten introduces the fact that he is a member of the panel which has been appointed to investigate ZZ’s complaint and invites Mr O’Flaherty to send him a summary of it. The disciplinary proceedings are clearly at the earliest stage.

In my judgment it is noteworthy that, by choosing to use the word “Investigation” in the subject line, Mr Etten describes his email, or introduces it, as referring to an investigation only. It is about a fact-finding process. That word, “Investigation”, identifies the context in which the email exchange took place and also sets the tone.

The context showing that this email exchange is the start of an inquiry process is reinforced by the first sentence of Mr Etten’s email where he again refers to the “investigation” into ZZ’s “claim”. He then asks for the “summary of the complaint”. In his response, Mr O’Flaherty retained the word “Investigation” in the subject line (while adding “Personal and in confidence”).

The circumstances of the publication of the First Email are, therefore, that Mr Etten and his two colleagues to whom it is copied are asking for, and expecting to receive, an account of one side of a matter which they have been tasked to consider in light of all the information they receive. The circumstances in which the First Email was sent were as a response to an express request for, in essence, one side of the dispute, namely ZZ’s complaint.

Where Mr Etten and the other recipients were concerned to gather information for their investigation, the circumstances, the context and their position in the British Council’s investigation is more indicative of a Chase level 3 meaning being conveyed by the reply to their request, than anything of greater gravity. However, as rightly conceded by the

The three recipients of the First Email (or reasonable people in their positions) would have read it with some care. It would be reasonable for individuals in their positions, appointed to investigate or oversee a complaint, to consider the response to Mr Etten’s request without pre-judgement. They would have been fully aware that Mr O’Flaherty was simply passing on a summary of a complaint made by a third person, about a matter which he had no direct knowledge of. At that stage, the publishees would have been aware that what was being sent had the status of a complaint only and it was for them to determine what had in fact occurred.

This is the context and circumstances in which the summary of ZZ’s allegation of a sexual assault was included in the First Email. Reasonable readers in the position of those three recipients would understand that Mr O’Flaherty was not adopting ZZ’s allegations or saying that they were true, he was giving a summary in order that they could use the information to establish where the truth lay through their own procedures. That is supported by Mr O’Flaherty’s opening words. He makes clear that he is merely a conduit with no knowledge of the matters when he expressly states that ZZ can correct anything in his summary of her complaint which he has got wrong. Adopting the words used in Stocker, “the way in which the words are presented” indicate reasonable grounds for suspicion only.

The same features negate Mr Sellers’ gloss on his pleaded meaning in his case that the First Email conveyed “strong” grounds to suspect him of the sexual assault. There are no words in the email to support the adjective “strong”. The First Defendant’s case that the grounds to suspect are “reasonable” aptly captures the impression conveyed by the email.

The second strand of the First Email pertains to Mr Sellers’ alleged erratic recent behaviour. His pleaded meaning is extracted from the first sentence of [3], but I agree with the First Defendant that it impermissibly seeks to exclude the role played by the second sentence of [3]. Those words refer to individuals wondering “whether there might be other issues in play” with Mr Sellers which implies a concern about Mr Sellers and not an attack on him because of his recent erratic behaviour.

That expression of concern is consistent with Mr Sellers’ behaviour being described as ‘erratic’ which generally suggests something outside of the norm and ‘emotional’ which suggests that Mr Sellers may be suffering or have been affected by something recently.

The words of the First Defendant’s pleaded meaning, namely “There are grounds for concern”, captures this integral part of the erratic behaviour allegation.

In my judgment, the First Defendant’s case on the First Email accurately reflects the meaning of the First Email.

This email was sent by Ms Walton (as Regional Director EU Europe for The British Council) to all Regional Directors of The British Council in Italy and also to Charlie Walker (apparently, as the person in charge of The British Council’s “Global Network Team”).

Mr Sellers’ case is that the natural and ordinary meaning of this email is:

“Paul Sellers, the Director of The British Council Italy, has today ceased his employment with The British Council. His departure has been sudden and a successor is not in place as yet. We cannot comment on the circumstances or reasons for his departure. There are grounds to suspect that Mr Sellers had seriously misconducted himself in his role as a director of The British Council Italy.”

The Second Defendant argues that the meaning is:

“Mr Sellers will leave the British Council today (7 May 2019) and Ian Frankish and Jane Costello will lead its Italian operations until the Claimant’s successor is appointed”.

At the heart of Mr Sellers’ case is the claimed “unavoidable implication” of the Second Email that his departure was sudden and with no notice either from The British Council to Mr Sellers or from Mr Sellers to The British Council. He also relies on the fact that the Second Email contains no praise of him or acknowledgement of his long service as an employee of The British Council or his 5 years’ service as Country Director of Italy. No explanation is given for Mr Sellers’ departure. Nor is any statement made as to what is happening to Mr Sellers, including as to his future employment. No comment as to his departure is given by The British Council or from Mr Sellers.

While these points are factually correctly, I reject Mr Sellers’ case as to implication. I take into account these factual points and the brevity of the content of the Second Email, but I do not consider his case as to the meaning properly reflects the natural and ordinary meaning of the communication.

In my judgment, none of the words in the Second Email contain a defamatory sting, and there is nothing implied in the text from which the reasonable reader could ‘read

Specifically, the Second Email does not impute any conduct to Mr Sellers beyond him leaving his role as Country Director for Italy. That is not conduct which would tend to affect his reputation among right-thinking members of society at all, let alone substantially affect him in an adverse manner in their eyes. Individuals leave jobs as a matter of routine in our society.

After reporting his departure, the rest of the email (i.e. from “We will start the recruitment process...” [2]) is not about Mr Sellers. It tells the reader who will be running the Italian operations and who recipients should contact if they have any questions about the Second Defendant’s work in Italy.

While the ordinary reader may “read in an implication more readily than a lawyer” (Koutsogiannis[12](iii)]), in order to be able to do that, there must be something in the words or their context which gives rise to that implication. Mr Sellers’ pleaded meaning is not capable of arising from ‘reading between the lines’. In my judgment, it is a wholly different meaning and not based on anything in the Second Email or sitting between its five lines. Even if it is possible that some readers wondered why he had left his post, and, of those readers, some came up with possible explanations and considered that there must be a reason for his departure, that does not assist.

The Second Email is silent on any reason or possible reason why Mr Sellers left the British Council. It contains nothing – no words, no hints, no nudges and no winks – which would support any conjecture that he had left because there were grounds to suspect him of misconduct. A reader who drew the Claimant’s pleaded meaning from the Second Email would be ‘avid for scandal': Koutsogiannis[12(iii)].

In conclusion, applying the governing principle of reasonableness it would not be “reasonable” for the hypothetical ordinary reasonable reader to understand the Second Email as conveying any defamatory meaning about Mr Sellers. The impression conveyed to such a reader would be a non-defamatory one.

Mr Sellers’ case is that in their natural and ordinary meaning the words complained of in the Third Email meant and were understood to mean:-

“Paul Sellers, the Director of The British Council Italy has today ceased his employment with The British Council. His departure has been sudden, and a successor is not in place as yet. We cannot comment on the circumstances or reasons for his departure. There are grounds to suspect that Mr Sellers has seriously misconducted himself in his role as a director of The British Council Italy.”

By contrast, the First Defendant says the meaning was:

“Mr Sellers has left the British Council. Ian Frankish and Jane Costello will lead its Italian operations until the Claimant’s successor is appointed”.

The following main arguments were made on behalf of Mr Sellers in relation to this email. It was sent by Mr O’Flaherty to, apparently, all employees of The British Embassy in Rome and to further representatives of The British Embassy. Its subject is key themes for the week beginning 13^th May 2019. Mr Sellers argues that it clearly includes his departure from The British Council as one of the key matters for circulation to the recipients. It is said to be significant that Mr Sellers’ departure from The British Council is “bluntly” described with the words “Paul Sellers has left the British Council”, which also implies suddenness without notice. It is said that the recipients of the email would know that Mr Sellers was Country Director for The British Council because Mr Frankish and Ms Costello, temporarily in his place, are to lead The British Council’s Italian operation. Consequently, the absence of any reason for Mr Sellers’ departure, whether provided by The British Council or by Mr Sellers, is a prominent omission from the announcement. So too (it is argued) is any comment about Mr Sellers’ contribution to The British Council, whilst its Country Director in Italy.

Again, reliance is placed upon the omissions as giving rise to the implication that Mr Sellers’ departure was on the grounds of suspicion of his misconduct in his office as Country Director. The implication is said to be that Mr Sellers has left under a cloud or, more precisely, has left because of some suspected misconduct.

I reject these submissions. In my judgment, the Third Emailis similar to the Second Email, but the statement complained of appeared within a longer email which provides relevant context.

On its face, the Third Email is a weekly routine form of communication to update recipients about a wide range of events arising out of or relating to the work and life of the British Embassy in Rome. This is shown by a number of elements of the email including the subject line which states, “Italy Network: key themes for w/b 13 May”, and immediately beneath it is a banner showing the Royal coat of arms and in large font the words “Weekly Update”. The introductory words “Key points from the Heads of Section meeting on Monday morning:” and the sign off “I hope that everyone has a very enjoyable week!” suggests that the Heads of Section meeting took place every Monday morning or at least had done so that week.

There follows 12 bullet points which cover a diverse range of topics from ministerial visits that week and how the Embassy will mark International Day against Homophobia, Transphobia and Biphobia, to employment matters affecting staff, and arrangements for a pub quiz that week (the final bullet point).

The First Defendant is correct to submit that in content and in style this is an updating communication from a senior member of the Embassy staff to colleagues across Europe. While most of the content is serious, the amiability conveyed by the final bullet point and sign-off imply nothing untoward, difficult or contentious has preceded it.

In my judgment, the only conduct of Mr Sellers referred to in the Third Email is that he has left the British Council and that is not defamatory. There is nothing in the statement complained of which could imply Mr Sellers pleaded meaning.

As with his case on the Second Email, the pleaded meaning is conjecture, not founded in the words themselves. Tellingly, the statement complained of contains only 48 words, while Mr Sellers’ pleaded meaning is materially longer, at 66 words. That alone is strongly suggestive of a case which is not based on what was actually published. Like the First and Second Emails, in my judgment the Defendants’ pleaded meaning is accurate.

The natural and ordinary meaning of the First Email is that: there are reasonable grounds to suspect that, when [ZZ] was saying goodbye to the Claimant when leaving a party at his home, the Claimant, under the influence of alcohol, inappropriately kissed [ZZ] on the edge of her lips and deliberately rubbed his hands over her breasts in a sexual manner; and there are grounds for concern about the Claimant’s recent conduct which has at times been erratic and uncharacteristically emotional.

The natural and ordinary meaning of the Second Email is that: the Claimant will leave the British Council today (7 May 2019) and Ian Frankish and Jane Costello will lead its Italian operations until the Claimant’s successor is appointed.

The natural and ordinary meaning of the Third Email is that: the Claimant has left the British Council, and Ian Frankish and Jane Costello will lead its Italian operations until the Claimant’s successor is appointed.

The Second Email and the Third Email are not defamatory of the Claimant at common law.