Waterson v Lloyd MP & Anor

When deciding whether a defamatory publication conveys fact or comment, the court applies the impression of the reasonable reader. That reader is not avid for scandal, and the court should avoid over-elaborate analysis. A statement identifying what a person did and describing that conduct as scandalous may be recognisable as comment rather than an allegation of further wrongdoing.

Political context, especially during an election, reinforces the need for this restrained approach. Politicians remain protected by defamation law, but acceptable criticism is wider for politicians acting publicly, and restrictions on political speech or debate on matters of public interest require particular care.

A former Member of Parliament sued his successful electoral opponent and the opponent’s campaign agent over two election pamphlets. The pamphlets stated that he had claimed nearly £70,000 in expenses for a family home 60 miles from his constituency and described the claims as scandalous.

On cross-applications for summary judgment, Tugendhat J held in [2011] EWHC 3197 (QB) that the publications alleged as fact that the claimant had abused the parliamentary expenses rules. He therefore rejected the pleaded defence of honest comment and entered summary judgment for the claimant. A later appeal concerning refusal of permission to plead justification was adjourned.

The issue on this appeal was whether the publications conveyed defamatory allegations of unlawful, rule-breaking or otherwise improper conduct, or instead stated the expenses facts and commented that they were scandalous.

By a majority, allowing the first appeal.

1. McCombe LJ held that the meaning was simple: the claimant had claimed nearly £70,000 from the taxpayer for a family home 60 miles from his constituency, and the publishers regarded that as scandalous. The first element was fact and the second was comment. No express or implied statement alleged that the claimant had broken the law, breached parliamentary rules or been required to repay money.

2. The reasonable reader knew that criticism of parliamentary expenses covered several categories, including unlawful claims, breaches of rules and substantial claims made within the rules. Identifying the claimant’s particular claims and calling them scandalous did not add an allegation of unidentified misconduct. The conduct underlying the comment was clearly identified, satisfying the distinction explained in Joseph v Spiller [2010] UKSC 53.

3. The contrary meaning resulted from a lawyer’s minute analysis rather than the approach of the ordinary reader. The principles in Jeynes v News Magazines Ltd [2008] EWCA Civ 130 required the reader not to be avid for scandal and required the court to avoid over-elaborate analysis.

4. Laws LJ agreed. Political speech, particularly during an election, gave those principles particular force. Politicians retain the protection of defamation law, but acceptable criticism is wider for politicians acting publicly. The balance between reputation and freedom of expression therefore supported a restrained reading of campaign speech.

5. Richards LJ dissented. In his view, the descriptions linked the claimant to the national scandal of unlawful, rule-breaking or improper expenses claims. He considered that the publications thereby insinuated factual wrongdoing, or at least failed to make clear that the words were comment based only on the identified claims.

The first appeal was allowed by a majority of two to one. The separate appeal concerning amendment of the defence remained adjourned.

1. Court of Appeal (Civil Division): By a majority, allowed the appellants’ first appeal against the determination that the publications conveyed defamatory allegations of fact. The separate appeal concerning refusal of permission to amend the defence remained adjourned.
2. High Court, Queen’s Bench Division: Tugendhat J held in [2011] EWHC 3197 (QB) that the pleaded meanings were defamatory allegations of fact rather than comment. He later refused permission to amend the defence to plead justification, and summary judgment was entered for the claimant.