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QC succeeds at trial of preliminary issue - 5RB Barristers

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QC succeeds at trial of preliminary issue - 5RB Barristers Call 5RB+44 (0)20 7242 2902 Menu About us Our work People Barristers Support team Recruitment Resources Cases News Publications Articles 5RB Talks Links Contact Contact us Enquiry Visit us Urgent injunctions Complaints procedure Register for 5RB updates Barristers Cases QC succeeds at trial of preliminary issue

July 4, 2019

Claimant's meaning upheld, article found to defame at common law and to have a tendency to cause serious harm Mr Justice Soole has ruled in a trial of preliminary issues in the Claimant’s favour in Alison Morgan QC v Times Newspapers.  The claim arose from an article published by The Times on its front page, Senior Prosecutor under fire after Stokes is cleared of affray.  It was published in the immediate aftermath of the acquittal of the England cricketer Ben Stokes for affray and sought to examine the conduct of the prosecution.  The judge found that the article conveyed the meaning contended for by Ms Morgan: that she had been professionally negligent in regard to her decisions as to who should be prosecuted and for what offences.  The Times contended that even in this meaning, the article did not defame the Claimant at common law.  It argued that where an allegation concerned a person’s professional reputation for competence, the law imposed a threshold that the imputation must suggest habitual, general of chronic incompetence in the relevant profession in order to be defamatory.  However, the judge found that this was not the case and that therefore the relevant meaning did in fact defame the Claimant in the common law sense.

Interestingly, after argument had taken place and the draft judgment circulated, the Supreme Court decision in Lachaux v Independent Print Ltd was handed down.  However, the judge concluded that his decision in regard to the tendency to cause serious harm ought still to be included in his judgment because a finding on tendency would form part of the court’s later determination of whether the test in s.1 was satisfied (which would ultimately take place at trial).  There may be an argument that the current practice of determining whether words have a tendency to cause serious harm to reputation, which will look merely to the words complained of themselves and not to any other evidence, ought to continue to be determined at preliminary issue trials where the court will determine meaning and whether the meaning found by the court defames the claimant at common law.

As acknowledged in the article, Ms Morgan had not in fact appeared for the prosecution at the Stokes trial.  Whilst she had been involved in the prosecution at a preliminary stage, The Times  accepted in its Corrections and Clarifications column the day after the publication of the article that Ms Morgan had, contrary to what was said in the article, not been involved in deciding who to prosecute and for what offences.

5RB’sWilliam Bennett QC appeared for Ms Morgan, instructed by Brett Wilson LLP

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