Cook v Telegraph Media Group Ltd

On a summary judgment application in a libel claim, the court must assess whether the claimant has a real prospect of success without conducting a mini-trial. Issues of fact, and issues of mixed law and fact, should ordinarily proceed to trial where they may affect justification, honest comment or responsible publication.

An opinion that an MP represents poor value for money, or that conduct is embarrassing, may be comment. Facts omitted from the publication may bear on whether the factual substratum was true or whether the defendant acted maliciously, but do not necessarily make the comment untrue. A Reynolds defence may fail where the publisher did not believe a material imputation to be true.

The claimant, a former Member of Parliament, sued the defendant newspaper over three articles concerning his unsuccessful claim for reimbursement of a £5 church offertory donation and his alleged value for money as an MP.

The defendant applied for summary judgment, relying on justification, honest comment and the Reynolds public-interest defence. The claimant accepted the public-interest nature of the subject but disputed the accuracy of the value-for-money assessment, the characterisation of his claim as deliberate or appropriate, the adequacy of the opportunity to respond and the defendant’s belief in the published meanings.

The court also had to decide whether any trial should be by judge alone or with a jury.

1. Summary judgment. Under CPR 24.2, the court considered only whether the claim had a real prospect of success. The application was not a summary trial. The court was required to avoid determining disputed facts or mixed questions of law and fact which could affect the outcome at trial.
2. Honest comment. The elements identified in Spiller v Joseph [2010] UKSC 53 applied. The pleaded meanings that the claimant represented low value for money and that his claim was particularly embarrassing were comment. An honest person could express an opinion on an MP’s value for money and could choose the criteria used to assess it. Omitted aspects of the claimant’s parliamentary work were relevant, if at all, to whether the factual basis was truly stated or whether the defendant believed the comment justified. They did not give the claimant a real prospect of defeating the defence on the first issue.
3. The meanings that the claimant thought it appropriate to claim the money, exploited the expenses system, or acted hypocritically were arguably either fact or comment. The claimant had a real prospect of proving that the journalist believed his denial that the claim was appropriate. The issue of malice therefore could not be withdrawn from the fact-finder. The modern scope of malice in honest comment concerned whether the defendant believed the comment justified, rather than spite or ill-will: Spiller v Joseph and Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777.
4. Justification and Reynolds. The claimant had a real prospect of defeating justification in respect of the meaning that he set out to exploit the expenses system for his own gain. The Reynolds defence required publication on a matter of public interest and responsible and fair steps to gather, verify and publish the information. Disputed evidence about the timing of the approach to the claimant, the telephone conversation and the journalist’s belief meant that the defence could not be determined summarily. It could also fail if the publication included a meaning which the journalist did not believe to be true.
5. Mode of trial. Although the claim was for libel, the application for trial by jury was made out of time under Senior Courts Act 1981, section 69 and CPR Part 26.11. The court’s discretion under section 69(3) had to be exercised by reference to the overriding objective, with a predisposition towards trial without a jury. The complexity of defamation law, the need for reasoned decisions, proportionality, cost and case-management efficiency favoured trial by judge alone.
6. The defendant obtained summary judgment only in respect of the two meanings held to be comment and incapable of being defeated by the pleaded omissions. The remaining issues were to proceed, with the trial by judge alone.