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Libel. Preliminary issue meaningAugust 11, 2014
In Mitchell v News Group Newspapers Ltd  EWHC 2615 (QB) Mr Justice Warby considered how the long-running case involving Andrew Mitchell MP should proceed together with the other case brought against him by PC Rowland, the last hearing being on the 24th July when Mr Justice Warby was to deliver his decision in respect of the case management.
Andrew Mitchell MP was Chief Whip in the Conservative Government when on the 19th September 2012 he left Downing Street with his bicycle and became involved in an argument with the police officers guarding the gates. PC Toby Rowland, who was attached to the Diplomatic Protection Group within the Metropolitan Police force, was one of the policemen at the gates.
The subsequent publicity from that incident led to the resignation of Mr Mitchell from his role as Chief Whip, three of the policemen lost their jobs, another policeman acquired a criminal conviction for misconduct in a public office with the two libel cases before the Judge following.
In Mr Mitchells action against News Group Newspapers (NGN) which commenced on the 7th March 2013, NGN had originally published a story in their paper, The Sun, where the article said he had called the policemen “fucking plebs” and “morons” which words Mr Mitchell had denied using but he had admitted swearing. NGN claimed that their story was protected by Reynolds privilege, a reasonable story and of public interest. This action had, at another hearing, been given a trial date in December 2014.
In the other Libel action brought by PC Rowland against Andrew Mitchell, which commenced on the 12th December 2013, this came about because of the statements made by Mr Mitchell in the media between December 2012 to December 2013 at six different times. Some of the statements made by Mr Mitchell made accusations against PC Rowland saying that the allegations made by PC Rowland were fabricated to destroy his, Mr Mitchell’s, career. In turn PC Rowland says that Mr Mitchell has lied about what happened and about him.
Mr Mitchell’s defence is that what he said about PC Rowland was true and that he has put forward the defences of honest opinion and qualified privilege. PC Rowland’s reply was that the allegations are false and Mr Mitchell was malicious.
Mr Justice Warby on looking at the two cases found there were a lot of issues the same and therefore, to avoid waste in terms of cost and time it would be fairer and more manageable for the areas that are common in both cases to be tried at the same time alongside each other.
Mr Justice Warby went on to say, however, there are still a lot of areas in both cases which are not common to each other particularly the defence by NGN of Reynolds privilege which does not feature in PC Rowland’s case and the defence of qualified privilege by Mr Mitchell is a different matter to that defence of NGN. Likewise the defence of honest opinion only features within the PC Rowland case. However, the matter of damages would be decided absolutely separately in each case and would not overlap in any way.
Mr Justice Warby thought a solution would be to have a preliminary trial of the common areas extracting those other issues to go for trial at another date. However, the common areas would have to be clearly defined to make this work.
Another aspect considered was whether the trial should be by Judge alone or with a Jury as well. Under s.69 (1) of The Senior Courts Act 1981, which says that if the claim is for libel or slander then that action should be tried by jury unless the Court states that there should be detailed examinations of documentation or accounts etc which cannot be satisfactorily conducted with a jury present. The Court will decide at its own discretion whether the case falls within that category and the presumption is for a non-jury trial.
Originally Mr Mitchell wanted trial by jury and again in June said he wanted trial by jury. He also made application for the PC Rowland case to be trial by jury. Both NGN and PC Rowland asked for the Judge only at the trials with no jury and also for the preliminary issue trial in respect of both matters.
However, by 17th July Mr Mitchell changed his mind and a letter written by his Solicitors said that he wanted to maintain the December date fixed for trial and trial by jury would probably mean another date being fixed. The parties then agreed that both trials would be without a jury and the trial of the preliminary issues be along the lines put forward by Mr Mitchell in that letter written by his Solicitors on the 17th July.
- The Preliminary issues were
(a) meaning of the words complained of in the Particulars of Claim in both matters,
(b) the justification defences by the Defendants in both matters AND
(c) the issue pleaded in 37.4 Particulars of Claim in Rowland v Mitchell.
Mr Justice Warby made some small alterations and then issued an Order for the trial of those preliminary issues. He went on to say that in a Libel action it is crucial to ascertain the meaning of the words in question, applying the laid down principles of law to those words. He did not consider that there were any great problems in this action, Mr Mitchell having repudiated that some of the statements made by him and which PC Rowland took exception at, referred to PC Rowland.
With regard to the justification defences Mr Justice Warby did not have any concerns or problems as they were straightforward for the preliminary issue trial.
The issue pleaded in 37.4 of the Particulars of Claim in Rowland v Mitchell, that Mr Mitchell knew that the allegations complained of by PC Rowland were without foundation, Mr Justice Warby said that as it is linked to the justification defences that it should be included in the preliminary issue trial. Further the same allegations form part of the plea of malice in para 26 of the Reply by PC Rowland and will be incorporated in this preliminary issue for the trial.
Mr Justice Warby left the Reynolds defence pleaded by NGN out of the preliminary issues as this in itself is very involved, costly and takes up too much time. At the same time Mr Mitchell’s qualified privilege defence was not included in the preliminary issue trial, not for the same reasons as the Reynolds defence but because it is different from the preliminary issues to be tried.
Mr Justice Warby at the earlier Hearing on the 24th July made an Order that both cases should be tried together before a Judge but without a Jury on the 17th November 2014 lasting approximately 7-12 days and that the trial should be of those certain preliminary issues in the actions.