Simpson v MGN: Isolating the defamatory sting
A recent decision by the Court of Appeal threatens to roll back progress towards the faster resolution of disputes by way of preliminary hearings. Since the coming into force of the Defamation Act 2013, and with it the effective abolition of jury trials, Judges now have more scope to make early decisions on issues such as meaning.
The publishers of the Daily Mirror, MGN, appealed against the strike-out by the High Court of their defence of justification (now truth) to a libel action brought by Premier League footballer Danny Simpson. Mr Justice Warby found the meaning of the article complained of to be, in essence, that the claimant had been unfaithful to his long-term partner and callously destroyed that relationship and family unit. He also struck out the defence as disclosing no reasonable grounds for defending the claim, where he felt that, even if MGN were able to prove the facts as set out in their particulars of justification, they could not establish the defamatory “sting” i.e. the gist or substance of the words complained of. In particular, MGN had not alleged that Mr Simpson’s partner had given up her legal career for the sake of having children with him, nor that they were living together at the time of the affair.
On appeal, MGN submitted that, although Warby J had identified gaps in their particulars of justification, this did not mean that they could not, or would not, prove the whole of the libel’s defamatory sting. They also sought to downplay the relevance of those parts of the meaning not addressed in the particulars. The claimant, in response, argued that, where MGN did not challenge the meaning, and where that meaning had been formulated to capture the full defamatory sting, they could not now say that certain elements were peripheral.
The Court of Appeal however, disagreed. Lord Justice Laws found that, even where the meaning had been decided, it remained open to MGN to raise arguments as to the intensity of the libel’s sting. He explained: “…in some cases the meaning of the words and their defamatory sting (and its intensity) ineluctably go together; but not always.” In this particular case, he felt that reasonable people might disagree on the extent to which the co-habitation and legal career factors went to the essential sting, which should therefore be established by fact-finding at trial, not at an interlocutory hearing. This was, he reasoned, in line with the two-stage process laid down in Chase v News Group Newspapers: 1) Has the defendant proved all or at least some of the factual propositions within the particulars of justification; and 2) Does the entirety of the proven facts establish the sting?
But Laws LJ’s concluding proposition, that “the meaning of a defamatory statement does not necessarily establish the intensity of its sting”, is a marked departure from Chase. It was also not (albeit this claim was brought under the old law) envisaged within the Explanatory Notes to the new Act. These make clear that “In any case where the defence of truth is raised, there will be two issues: i) what imputation (or imputations) are actually conveyed by the statement; and ii) whether the imputation (or imputations) conveyed are substantially true.” There is no reference to assessing the intensity of the sting, once determined. Perhaps, as Laws LJ recognises, it will be only in rare cases that the defamatory meaning and the intensity of the sting do not go hand in hand. Nevertheless, if the decision stands, it may discourage the early strikeout of a defence, and therefore prolong litigation, on the basis that the full scope of the sting cannot be established until trial.
The Claimant has applied to the Court of Appeal for permission to appeal to the Supreme Court.
Click here for a link to the judgment.