Waterston v Lloyd

We reported in January 2012 on the decision in the High Court of Mr Justice Tugendhat. Waterson v Lloyd [2013] EWCA Civ 136 is an appeal against that decision.  In the High Court the Judge had found for Waterston.  The court found that the articles were allegations of fact against him and that the meaning was that the former MP was guilty of abusing the MPs expense system for his own advantage.

Waterson argued that the criticism of his expenses claims in the articles linked him with the expenses scandal MP’s who had committed criminal offences or other breaches of the expense rules and had acted improperly in relation to their expenses. The defendants argued that the words did not suggest he had broken any rules. Instead they were simply expressions of opinion about him and how he had used the expenses system for his own benefit which was open to criticism.

Tugendhat J held that the Defendant’s words used in the articles were “plainly” statements of fact and defamatory of Mr Waterson. He considered that the “scandal” referred to had the meaning that Mr Waterson was guilty of abuse of the Parliamentary rules for his own financial advantages. He considered it significant that there was no attempt by the writers of the articles to distinguish factual statements from matters of comment or opinion.

The Judge below’s decision was overturned on appeal.  The court said they were cautious about overturning findings of fact. However, the court felt the meaning of the words complained of were quite simple: “”W” has claimed nearly £70,000 from the taxpayer for a family home that is 60 miles from Eastbourne”. That was considered to be fact.  “That is a scandal”.  That was considered to be “comment”.  The court could not find anything in the publication to the effect that Waterston had broken the law and Parliamentary Rules.  The court felt that the reasonable reader would have been aware of the criticism of the Parliamentary expenses and that some MPs might have broken the law or Parliamentary Rules or might merely have made substantial claims strictly within the rules of the criticised system.

In this case, however, all that had been stated was what was claimed and the writer’s view that was “a scandal” or “scandalous”.

McComb LJ, felt that the statements fell within the type of material identified in Myerson v Smith’s Weekly Publication Company Limited (1923): “To say that a man’s conduct was dishonourable is not comment, it is a statement of fact. To say that he did certain things and that his conduct was dishonourable is statement of fact, coupled with comment.”

The court also felt that the political nature of the publication was important.  He stated that while politicians are entitled to protection under the law of defamation:

“The limits of acceptable criticism are wider in relation to politicians acting in their public capacity and in relation to private individuals.” European case law made clear that the limits of acceptable criticism were wider in relation to politicians acting in their public capacity than in relation to private individuals. He quoted the observations of the Strasbourg Court in a 2005 case that “there was little scope under article 10(2) of the Convention for restrictions on political speech or on debate on questions of public interest”.



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