We are pleased to introduce our May media disputes newsletter. In our coverage of this month’s events, we discuss the £35m settlement of a long-running blacklisting case, the Court of Appeal’s dismissal of a libel and malicious falsehood appeal, and a further Court of Appeal case that overturned a public interest defence in a defamation matter and concluded that the original High Court trial was unfair.
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Blacklisting High Court group litigation action settles for compensation of £35m:
Long-running claims in the UK against various construction companies relating to the blacklisting of more than 1,200 workers settled out of court this month for a total of £35m in compensation. An estimated £20m is also to be paid towards the claimants’ legal costs, as well as £230,000 for a fund that will be used to retrain the blacklisted workers.
The settlements were reached over three years. The first 256 claimants settled in 2016 for more than £10m. The dispute focused on secret files containing information about construction workers that was used to record negative information about them. They included phrases such as “will cause trouble”, “Irish ex-army, bad egg”, and even, “talks like a young Alf Garnett”, as well as “wears Anti-Nazi League badges and insignia”.
The claimants sought compensation for defamation, breaches of confidence, misuse of private information, breaches of data protection legislation and loss of earnings. The case is particularly interesting as it is an example of legal proceedings resulting from a regulatory investigation, in this matter a data protection investigation by the UK’s Information Commissioner’s Office.
Court of Appeal dismisses libel and malicious falsehood appeal regarding an announcement on the London Stock Exchange’s Regulatory News Service:
The judgment of Tinkler v. Ferguson and Others  EWCA Civ 819 this month concerned an announcement made on the London Stock Exchange’s Regulatory News Service by Stobart Group Limited.
Mr Tinkler, the claimant, was at the time of the announcement an executive director and substantial shareholder in Stobart. He was the chief executive officer of Stobart from 2007 until his resignation on 28 June 2017. He was also the sole director and CEO of Stobart Capital Limited.
In the announcement, the directors referred to a boardroom dispute with the claimant. Mr Tinkler contended that the announcement would have been understood to be alleging that he had, to paraphrase, acted in breach of his duties as a director of Stobart by deliberately destabilising the board at a crucial time for the business, and/or had done so for selfish and self-interested reasons, to protect his own position, following his history of improper conduct and poor corporate governance which included forcing the board to deal with unwarranted challenges, and that he had repeatedly shown himself to be so lacking in integrity that he was unfit to hold the office of company director.
There had been a preliminary High Court trial on the meaning of the words in the announcement and whether they caused the claimant serious harm under section 1 of the Defamation Act 2013. The first instance judge, in the High Court, identified the meanings of the announcement to be:
- that Mr Tinkler had presented a series of challenges to the board of Stobart, the most recent of which was his opposition to the re-election of the chairman of Stobart;
- that a vote to remove the Chairman would weaken Stobart’s corporate governance, create instability, present a number of serious risks to Stobart, and would not be in the best interests of the shareholders; and
- that Mr Tinkler’s behaviour was disruptive, and, in relation to the challenges identified as per the above, Mr Tinkler’s behaviour was unreasonable, and his opposition to the re-election of the chairman was regrettable and risked destabilising Stobart.
The High Court judge found that the only allegation that had a defamatory meaning was that Mr Tinkler’s behaviour was unreasonable, and that his opposition was regrettable and risked destabilising Stobart. Nevertheless, the High Court also held that despite having a defamatory meaning, this allegation failed to meet the serious harm threshold under section 1 of the Defamation Act 2013.
When reconsidering this case and whether the allegations were defamatory, the Court of Appeal emphasised the importance of context, and said that, for example: “A Stock Exchange announcement is self-evidently a more measured statement than a Facebook communication.”
The Court of Appeal said that the question of impropriety was central to the disposition of the appeal but any suggestion that the High Court judge failed to take the context of the announcement into consideration could not be sensibly maintained. The Court of Appeal said in relation to the one allegation which the High Court held did have a defamatory meaning: “If it is defamatory at all (as to which I would not wish to differ from the [High Court] judge) it is very much at the lower end of the scale.”
As such, the Court of Appeal rejected the claimant’s appeal on this point and agreed with the High Court that “an inference of serious harm cannot be drawn”. The Court of Appeal also held that Mr Tinkler’s pleaded meanings of the announcement could not be part of any reasonable available meaning for the purposes of malicious falsehood.
Both the first instance judge, Mr Justice Nicklin, and one of the Court of Appeal judges, Lord Justice Bean, made clear that when they received papers in a defamation case, they read the publication complained of before reading the legal submissions, so they could consider them in the same way as an ordinary reader of the publication would do.
This implies that parties looking to rely upon nuances and perhaps not obvious meanings for potentially defamatory items will have to work hard to shift a judge’s opinion to their way of thinking. They are essentially trying to convince the judge that the court’s initial reading of the publication was not how a hypothetical reasonable reader would have understood the article. We discuss the current state of the law and procedure for determining meaning in defamation cases in depth below.
Court of Appeal forcefully overturns England and Wales High Court defamation judgment on ”public interest” journalism:
This case was heard in England, but the claimant was Polish. The defamatory article about him was in a Polish-language newspaper called Nowy Czas for the Polish community living in the UK. At first instance, the High Court judge in Serafin v. Malkiewicz and Others delivered a withering judgment rejecting the claimant’s claim for defamation, in which he said: “It is, in a different way perhaps from the article itself, a modern morality tale: a cautionary warning that litigation of this sort, having regard to the nature of the issues at stake, should not be initiated out of almost unbounded self-confidence and lack of judgment, coupled with a misplaced belief that the court will surely succumb to the same charm and eloquence that has worked so effectively in the world outside.”
The Court of Appeal this month overturned that High Court decision in equally strong terms, and released a judgment criticising the High Court judge. Among other criticisms, the Court of Appeal ruling said, “The [High Court] judge’s interventions during the claimant’s evidence were highly unusual and troubling. On numerous occasions, the judge appears not only to have descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination, but also to have used language which was threatening, overbearing and, frankly, bullying. One is left with the regrettable impression of a judge who, if not partisan, developed an animus towards the claimant.”
It added: “The judge not only seriously transgressed the core principle that a judge remains neutral during the evidence, but he also acted in a manner which was, at times, manifestly unfair and hostile to the claimant… not all departures from good practice render a trial unfair – ultimately the question is one of degree. Nevertheless, we have carefully considered and reflected upon this matter and are driven to the conclusion that the nature, tenor and frequency of the judge’s interventions were such as to render this libel trial unfair.”
Aside from being a remarkable pair of forcefully worded judgments, the Court of Appeal judgment is noteworthy for how it analysed the public interest defence under section 4 of the Defamation Act 2013. In allowing the appeal, the Court of Appeal found that the High Court judge had made an error when deciding that the defendants in the case had satisfied the “public interest” defence.
When deciding upon public interest, the Court of Appeal considered that the article was in reality about the claimant and his personal life, and not the management of organisations in which he was involved. The defendants’ failure to contact the claimant for comment was an important factor, with the court finding that the circumstances in which a publisher need not seek comment would “necessarily be rare”. Other failings to comply with the public interest defence were discussed in the judgment. This Court of Appeal judgment adds to growing case law clarifying how public interest defences are to be considered. It gives a good insight into what journalists should do in future to ensure that their articles fall within public interest requirements, as well as other factors and potential defences, such as truth and honest opinion, which were also both dealt with in the judgment.
A new era for determining defamatory meanings
What a hypothetical reasonable reader would have understood an allegedly defamatory statement to mean is of fundamental importance to a defamation case in England and Wales, and in much of the rest of the world. Often a defence will stand or fall on the meaning attributed to the publication by the court.
Read the full article here – A new era for determining defamatory meanings
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