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Court: High Court

Judge: Nicklin J

Date of judgment: 31 Oct 2017 Summary: Defamation

Download: Download this judgment

Appearances: Adrienne Page KC - Leading Counsel (Claimant)  Jacob Dean KC (Claimant)  Andrew Caldecott KC - Leading Counsel (Defendant) 

Instructing Solicitors: Carter Ruck for Claimants; Wiggin for Defendants

Facts This was a preliminary issues trial of meaning and defamatory tendency in a libel claim against the biographer and investigative historian Tom Bower. The claim relates to a short passage from Mr Bower’s book about the Blair government.

The passage concerned the time in 1998 when the News of the World outed the claimant as gay. It included a statement that the Claimant “was accused by the News of the World of paying £100 to rent boys in order to be kicked around a room”.

The Claimant said that the words complained of meant “that the Claimant had been paying £100 a time to young male prostitutes to subject him to violent sexual acts or that there were strong grounds to so believe”.

The preliminary issues trial was heard before service of the defence, but the Defendants invited the court to find that the words complained of meant “that there are grounds to suspect Nick Brown may have paid young men for consensual rough sex”.

At trial, both parties submitted that a key issue for the Court was the effect of the “repetition rule” on the approach to ascertaining the natural and ordinary meaning of the passage (and in particular the appropriate Chase level).

Held Meaning
Nicklin J found that the words complained of meant “that there were grounds to suspect that the Claimant had paid young male prostitutes to subject him to consensual rough sex” [40]. In doing so he rejected the Claimant’s submission that the effect of the “repetition rule” was to fix the meaning of the words complained of at Chase level one (an allegation of guilt).
The repetition rule, while relevant to the determination of meaning, “takes its place alongside all the other matters to which the Court must have regard” and “cannot be applied mechanistically” [28]. The effect of the rule in meaning cases is to prohibit arguments that “the statement is less defamatory (or not defamatory at all) simply because it is a report of what someone else has said.” [32]

A court is not therefore bound to find that the defamatory meaning attaching to a repetition was the same as in the original allegation. The question remains what would the words convey to the ordinary reasonable reader.

To produce a Chase level one meaning, the effect of the publication (as a whole) “has to be the adoption or endorsement of the allegation”. This could come from “bald repetition” or “other context which signals to the reader that the allegation is being adopted when it is repeated” [30].

In context, the passage complained of would not be understood to be an adoption of the allegation made in the News of the World. It meant only that there were grounds to suspect the claimant acted as alleged, at the time the allegation was made.

Defamatory tendency
Shortly before the trial, the Defendants had made two concessions: that, in the context where the Claimant was at the time a government minister, the Defendants’ meaning was defamatory at common law and was “serious” (in the sense meant by the Court of Appeal in Lachaux).

Nicklin J emphasised that this was a matter of law and not therefore disposed of by the agreement between the parties. In his view, the case previously advanced by the Defendants (that the meaning was not defamatory) was not “manifestly unsustainable” [58]. Whether or not right thinking people, in 2017, would consider that allegations of paying for sex and/or enjoying rough sex were defamatory raised difficult questions as to contemporary social values [58].

Nonetheless, in light of the approach adopted by the parties, and where the argument that the meaning was not defamatory was not “overwhelming” [60], the appropriate course was not to make a ruling but to adjourn the question of defamatory tendency to be revisited, and if necessary resolved, later in the proceedings [61].

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