IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH
COURT OF JUSTICE
QUEEN’S BENCH DIVISION
THE HONOURABLE MR JUSTICE
WARBY
B E T W E E N
|
Appeal
No A2/2016/3703
Claim
No HQ15D01507
|
ALEXANDER ECONOMOU
Appellant/Claimant
and
DAVID DE FREITAS
Respondent/Defendant
____________________________________________________
APPLICATION FOR
PERMISSION TO
APPEAL TO THE SUPREME
COURT
____________________________________________________ |
|
1. The Court
of Appeal’s rejection of both the Appellant’s grounds of appeal gives rise in
each instance to an arguable point of law of general public importance which
ought to be considered by the Supreme Court at this time.
(A) Where published
words convey such a serious defamatory imputation that for the purpose of s1(1)
of the Defamation Act 2013 an inference of serious reputational harm should be
drawn, does it remain open to the court to conclude that nonetheless s1(1) is
not satisfied, even where – as here – the defendant provides no evidence by way
of positive rebuttal or challenge?
2. The Judge’s
findings amounted to a greater than trivial readership and audience for the
November items in terms of the numbers who recognised the Appellant as their
subject. These items were the Sandra Laville Guardian article of 6
(website) and 7 (hardcopy) November 2014 which reproduced the Respondent’s
Press Release of 6 November 2014, the Respondent’s interview on the BBC Today
programme of 7 November 2014 and his appearance on the BBC TV News Channel
later that day. This readership and audience read, heard and saw the Respondent
suggesting there were reasonable grounds to suspect the Appellant of rape and
to impugn his private prosecution.
3. Applying
the approach of the Court of Appeal in Lachaux v AOL & Ors [2017]
EWCA Civ 1334; [2018] 2 WLR 387 at [70] an inference of serious reputational
harm should have been drawn without more. The reputational harm arose at the
moment the words were read, heard or seen. The inference that it was serious
harm established the Appellant’s cause of action – since it meant he had proved
(1) publication of the words which (2) identified/referred to him and (3) satisfied
the s 1(1) threshold of serious reputational harm. The legislative threshold
was designed to weed out trivial and undeserving claims by raising the
threshold for defamation from that in Thornton
v Telegraph Media Group Ltd [2010] EWHC 1414 (QB); [2011] 1 WLR 1985 but not otherwise to amend the common law
criteria for actionability. That is why it is not only surprising at first
blush (draft Judgment #40) but actually wrong to conclude that such serious
allegations promulgated in the national media could fail to surmount the
serious harm threshold.
4. The present
Court of Appeal has interpreted the approach taken by the Judge – conducting a
“causation analysis” (draft Judgment [#41]) – as being consistent with that
subsequently described by Lord Justice Davis in Lachaux at [80] and
[82]. However two points arise:
4.1. From [80]
in particular it seems that what Lord Justice Davis had in mind was an
exceptional case where a defendant had available a positive evidential rebuttal
that no serious reputational harm had been caused or was even likely. Lord
Justice Davis put forward the possibility that this might be for reasons
unrelated to the meaning conveyed by the defamatory statement complained of or
where the defendant considered he had irrefutable evidence that the number of publishees
was very limited, that there had been no grapevine percolation and there was
firm evidence that no-one thought the less of the claimant by reason of the
publication. Analytically this would be a “not worth the candle” type case – Jameel
(Yousef) v Dow Jones [2005] EWCA Civ 75; [2005] QB 946 – as opposed to one
where the meaning was not sufficiently defamatory to be actionable.
4.2. In any event
it is not the present case – the Respondent advanced no such evidential
rebuttal whether in the form of irrefutable evidence or otherwise.
4.3. Secondly, if
at [82] Lord Justice Davis is taken to be saying that where a claimant has
advanced a sufficient case on serious harm to give rise to an inference of
serious reputational harm, the trial can then reconsider that conclusion
such a proposition must be wrong. While
at a trial questions of the actual damage done, mitigation and therefore
remedies may feature – subject for example to rules about admissibility
including that in Dingle v Associated Newspapers [1964] AC 371 – the
presumption of damage for the purposes of establishing actionability remains:
see Lachaux [58]-[59]. That being so the Judge’s “causation analysis”
could only properly be applied for the purpose of assessing what damages or
other remedies should be awarded in the Appellant’s favour. It is not an
analysis which is apt to establish whether or not the actionability requirement
of s1(1) has been established. Lord Justice Davis’ observations must be seen in
that light.
5. The Appellant’s
advisers in the present case understand that the respondent in the Lachaux appeal
heard by the Supreme Court last week on Tuesday and Wednesday 13 and 14
November 2018 mounted substantially the same challenge to that part of Lord
Justice Davis’s reasoning as has just been stated – arguing that s1(1) presents
an actionability test but no more. If the respondent in Lachaux is
successful in the Supreme Court on this point then unless the present Appellant
is granted permission to appeal to the Supreme Court, he will have been denied
actionability on his claims concerning the November 2014 items even though ex
hypothesi his claims will have been actionable throughout. In other words they
will contrary to the findings of the Judge at first instance and this Court be
shown to have surpassed the section 1(1) threshold. Without the grant of
permission to appeal to the Supreme Court therefore the Appellant will be left
with no remedy even if the Supreme Court accepts the respondent’s argument on
this point in Lachaux.
(B) Where a
libel causing or likely to cause serious harm to the reputation of the claimant
has been published in the media without all reasonable steps having been taken
to guard so far as possible against the publication of such untrue defamatory
material, can it still be said for the purpose of the objective requirement of s
4(1)(b) of the Defamation Act 2013 that the defendant reasonably believed that
publishing the statement complained of was in the public interest?
6. As is
recognised by draft Judgment [#112] the Respondent could have added distancing
words but he did not do so. Equally as the Judge found the Respondent had “room
for manoeuvre” albeit the Judge held “limited”. The question here is not
subjectively whether the Respondent’s actual belief in what he was doing was
defensible, but objectively was it reasonable for him – or anyone in his
position knowing what he knew – to think that his various public statements including
his own Guardian newspaper article on 10 December 2014 under his own
by-line (the de Freitas article) seriously affecting the Appellant’s good
standing were nevertheless published in the public interest.
7. The case –
both before the Judge and before this Court – proceeded on the basis that there
was “much to be said” for the Appellant’s legal analysis that, in answering the
question whether a defendant’s belief that publication was in the public
interest was reasonable, the court should be guided by the Reynolds checklist
and that part of Lord Brown’s speech in Flood cited at draft Judgment [#100].
See the Judgment below at [237] to [240]. That is consonant with section 4 of
the 2013 Act having essentially been a codification of the common law as
opposed to any sort of substantial extension of a defence available in the
public interest or in pursuit of any enhanced right to freedom of expression.
See the rationale in the Explanatory Notes to the Act paragraph 35. Indeed
the Judgment below at [240] explicitly rejected one attempt by the Respondent
to read in more to section 4(4) than would be permitted by the limits of the
“flexibility” already a legitimate part of the Reynolds common law
defence.
8. There was
no cross-appeal or Respondent’s Notice to the effect that the Judge was wrong
in this part of his legal analysis apparently to accept that the proper scope
of the section 4 defence goes no wider than that provided by the common law –
in particular Reynolds and, as had been recently decided when the Act
was enacted, Flood.
9. However the
upshot of the Judge’s decision below now supported by the draft Judgment is
that “contributor immunity” (draft Judgment [#107]) has been introduced where nothing
of the sort can be derived from Reynolds, Flood or any of the
other relevant pre-2013 cases. In particular such immunity was rejected in Malik
v Newspost Ltd [2007] EWHC 3063 (QB) – a contributor of a letter to the
editor cannot claim privilege in respect of the publication of the letter by
the newspaper in the form it was sent – and Starr v Ward [2015] EWHC
1987 (QB) – Reynolds defence not available to a TV interviewee alleging
a celebrity sexual assault.
10. Only in an obiter
discussion in Hays Plc v Hartley [2010] EWHC 1068 (QB) – an
interlocutory decision made on applications to strike out or for summary
judgment – had Tugendhat J raised before the 2013 Act a possibility that the Reynolds
defence might be available to someone who contributed to the publication of
a newspaper article. However that was in the hypothetical scenario where a
newspaper company (D1) had established a Reynolds defence but then
questions about the individual liability of other members of the publishing
“team” (e.g. D2 and D3) arose because in the light of their respective roles
they could not each individually be said to have completed a Reynolds checklist
in respect of the publication.
11. By contrast
to the present case however it has never been shown that the BBC, the Guardian
or the Daily Telegraph had a section 4 defence available to them in
respect of what was broadcast and printed. There is therefore no established public
interest defence in relation to which this Respondent can claim a parasitic or
dependent entitlement. He falls outside Tugendhat J’s speculative example.
12. So far as the
claim to a “contributor’s” section 4 defence is concerned the Respondent’s
difficulty remains that he could – but did not – have done more to guard
against his libels of the Appellant. For example in his own Guardian article
– the de Freitas article – the Respondent could easily have recorded that (as
he knew was the case) first, the man accused vehemently protested his innocence
and secondly, the Director of Public Prosecutions had confirmed directly to him
(the Respondent) that the prosecution satisfied both limbs of the prosecutorial
code. By so doing the Respondent would have met both the explicit and any
implied meaning.
13. Not only
did Tugendhat J’s discussion in Hays not provide the Judge below
with a sound basis for finding a public interest defence, but the Judge then
accepted that he needed to go further – see Judgment below [246]. Draft
Judgment [#106] emphasises in bold the second sentence of that paragraph but
fails to recognise – as ultimately did the Judge – that the point made there
must be qualified by what follows in the next sentence:
…It
is hard to see how an individual could rely on the public interest defence to
escape liability for a false factual statement about events within their own
knowledge.
14. In reality
the situation described by the Judge is the very situation here where the
Respondent disavows the obligation to give the gist of the Appellant’s position
by saying that it was the newspaper’s or other media’s job to do so. However it
was the Respondent himself who knew what the Appellant’s position was and it
was the Respondent who had approached the media seeking publicity. This simply
is not a case of investigative journalism where for example the Guardian
had sought out the Respondent as a source or contributor and he is now being
pursued as such – like D2 or D3 in Tugendhat J’s example – over some failing in
the newspaper’s coverage.
15. Here the
Respondent’s final article – the de Freitas article – was the
newspaper’s publication. Prior to that the Respondent’s own appearances for
interview and organised press releases ensured he got into the media and before
the public his own version of the story without disclosing the gist of the
Appellant’s position.
16. It is irrelevant
to say – if this is what is suggested – that the Appellant’s chances of a
verdict in his favour would have been enhanced if he had sued the media (draft
Judgment [#111]) instead of their “source”. In a case such as the present the
media would have been able to say that they relied on the contributor – or in
this case the contributing lobbyist – to get the facts right and present them
fairly. After all the Respondent did know all the essential facts, as was
doubtless perceived by the media. Thus the Respondent had a non-delegable
responsibility if he wished to claim the privilege of legal protection afforded
him by section 4. That is because it remains the position under section 4 that
as Lord Mance said in Flood at [123]:
It
will not be, or is unlikely to be, in the public interest to publish material
which has not been the subject of responsible journalistic enquiry and
consideration.
APPLICATION
17. For the
reasons given above these points of law of general public importance ought to
be considered by the Supreme Court at this time. The Appellant respectfully
seeks the Court of Appeal’s permission to appeal to the Supreme Court in
relation to both grounds.
5RB
5 Gray’s Inn Square
London WC1R 5AH
|
Desmond Browne QC
Jonathan Barnes
Gervase de Wilde
20 November 2018
Counsel for the
Appellant/Claimant
|
