Morgan v Times Newspapers Ltd

For professional defamation, an imputation need not allege habitual or general incompetence. A specific instance of professional negligence, or reasonable cause to suspect it, may damage professional reputation sufficiently to be defamatory. The question is whether ordinary reasonable readers would think less of the professional or adversely alter their estimation of that person. The alleged conduct may concern particular professional decisions rather than general competence. The criticism is not necessarily reduced to criticism of the professional’s product, especially in an advisory profession. Inherent tendency remains relevant to the factual issue of serious harm under the Defamation Act 2013.

The claimant, a barrister, sued the publisher of The Times over an article reporting criticism of her charging decisions in the prosecution of Ben Stokes and the absence of charges against Alex Hales. The claim concerned both print and website publication, including an embedded video.

At a trial of three preliminary issues, the court determined the article’s true meaning, whether that meaning was defamatory at common law, and whether it had a tendency to cause serious harm under s.1 of the Defamation Act 2013. The Supreme Court had handed down [2019] UKSC 27 after the hearing and had overturned the Court of Appeal’s reasoning in Lachaux v Independent Print Ltd. The central issues were the meaning conveyed by the publication and whether criticism of particular professional decisions could amount to professional defamation.

1. Meaning. The article conveyed that there was reasonable cause to suspect that the claimant had been professionally negligent in deciding that Mr Stokes should be charged only with affray and in deciding not to charge Mr Hales. The court assessed the publication as a whole, including the headline, surrounding context and website video. It rejected the narrower interpretation that the article conveyed only an excusable mistake, an error of judgment, or disagreement between prosecutors.
2. Professional defamation. It was not necessary for the imputation to concern an habitual, chronic or general attribute. Skuse v Granada Television Ltd demonstrated that an imputation concerning professional competence in a particular case could be defamatory. One instance of incompetent professional services, or reasonable cause to suspect it, could adversely affect professional reputation as much as an allegation of general incompetence.
3. The court rejected the suggested distinction between professional negligence and an error of judgment as specialist legal analysis which the reasonable reader would not make. It also rejected the contention that criticism of particular professional decisions was merely criticism of the professional’s product and therefore actionable only as malicious falsehood.
4. The imputation met the common-law tests for professional defamation and crossed the seriousness threshold. The article also had a tendency to cause serious harm to the claimant’s professional reputation. The issue remained relevant notwithstanding the Supreme Court’s judgment in Lachaux v Independent Print Ltd, because inherent tendency remained relevant to the overall factual issue under s.1.
5. The three preliminary issues were answered: (1) the meaning was as pleaded by the claimant; (2) yes, it was defamatory at common law; and (3) yes, it had a tendency to cause serious harm.