Simpson v Mirror Group Newspapers Ltd [2016] EWCA Civ 772

In Simpson v Mirror Group Newspapers Ltd [2016] EWCA Civ 772 (26 July 2016) this matter came before the Court of Appeal after permission was granted by Lord Justice Christopher Clarke on the 18th May 2015 for the Defendant’s to appeal against part of an Order made by Mr Justice Warby in a libel action brought by the Claimant, a Premier League footballer, against the Defendant, the publishers of the Daily Mirror. The claim was brought by the Claimant because of a story in the Daily Mirror on 16th November 2012 and on the Defendant’s website concerning his relationship with a well-known person.

Mr Justice Warby’s judgment in the original hearing on21st January 2015, found the words complained of to bear the natural and ordinary defamatory meaning that:

“By entering a romantic relationship with the celebrity Tulisa Contostavlos the claimant was unfaithful to his loyal partner Stephanie Ward, with whom he was in a long-term and committed relationship, living with their daughter as a family; he did so despite Ms Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child; and by doing so he callously destroyed his relationship with Ms Ward and broke up an established family unit which was soon to be joined by the child they were expecting.”

Mr Justice Warby considered that the particulars of the defence could not substantiate that they were living as a family when he began his relationship or his infidelity destroyed a family unit.  He noted it was clear from the particulars that this was not how matters were and refused permission to amend the defence upholding the Claimant’s application to strike out the defence of justification that its particulars did not fall within the defamatory meaning that was borne by the article.

The Court of Appeal examined whether Mr Justice Warby was correct in striking out the defence of justification.

The Judges referred to Jeynes v News Magazine Ltd (2008) and, in particular, paragraph 14 where they observed there was nothing in there about the sting of the libel but noted that there would be cases where a meaning could be arrived at which is not at all defamatory as was recognised in the second point of paragraph 14

(2) The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

Lord Justice Laws who delivered the judgment for himself and on behalf of the other Court of Appeal Justices, Lady Justice King and Lord Justice Lindblom found that it was not the role of a judge  “to choose one putative meaning over another on the footing that the former contains more of a defamatory sting than the latter”.   He continued that in doing so it would “give systematic weight to a choice of meaning which would favour claimants over defendants. Such an approach offends justice and logic alike”.

He did not consider that because Mr Justice Warby’s ruling as to meaning had not been appealed that this should dismiss the Defendant’s submissions on the decision to strike out. He said it should have remained open for the Defendant to produce arguments in respect of the intensity of the libel’s sting.

He observed that reasonable people have differing views in respect of moral and immoral conduct and the same may apply to the “gravity or otherwise of the sting of a libel”.

The outcome of the Appeal was that Lord Justice Laws with the other Lord Justices considered that the Judge should have decided the defamatory meaning of the article separately from the defamatory sting. Their decision will almost likely add to the costs of the action and cause delays as, it is usual for the courts to make early decisions on the meaning of the words complained of which often narrows the issues between the parties or allows the court to get rid of a claim and to ascertain whether the defence of Truth is feasible.

The Claimants are seeking to appeal the Court of Appeal decision to the Supreme Court

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