Horan v Express Newspapers [2015]
In Horan v Express Newspapers [2015] EWHC 3550 (QB) (07 December 2015) the matter came before The Honourable Mr Justice Dingemans. The Claimant, a member of a very popular and internationally known boy band, brought a libel claim against the Defendant Newspaper Group relating to stories printed by them in one of their newspapers, the Daily Star on pages 1 and 5 on the 21st July 2015, on their website running from the 21st to the 29th July and the newspaper’s YouTube channel.
In his claim, the Claimant contended the articles were defamatory of him “either in their natural and ordinary meaning or by way of true innuendo, “the articles meant and were understood to mean that during an evening spent with Justin Bieber and Cody Simpson the Claimant had used hard drugs, namely crystal meth or crack”.
The Defendants disagreed that the stories bore the meaning attributed to them by the Claimant and made an application to the court under CPR Part 53 PD 4.1(1). They sought a ruling by the court that the article did not bear the meanings given in the Particulars of Claim and the meanings were not defamatory of the Claimant.
Mr Justice Dingemans noted that their application was not for a hearing of a preliminary issue to decide what the actual meaning of the words was. He referred to Lord Justice Sharp in Rufus v Elliott where he had said that “the need for such applications has effectively fallen away, and there are many obvious advantages in determining the actual meaning of the published words and any issues about section 1 of the 2013 Act and “serious harm” as preliminary issues and at the same time”.
Mr Justice Dingemans observed that these points had been raised by the Claimants representatives to the Defendants in a letter of 22nd October 2015 which the Defendants responded to by confirming their application would proceed. He considered this went against CPR Part 1 where the overall objective is for the parties to come together to meet the requirements of the court in facilitating the management of the case involving the cooperation of the parties.
He noted the Skeleton Argument put forward by the Defendants included “the Claimant has taken various technical objections to the form of the application in correspondence”. He did not consider the objections were technical as they addressed the issues involved as to whether a preliminary issue and disclosure would be made. Further, that the application should be looked at “as a preliminary issue meaning/serious harm application”. Mr Justice Dingemans did not consider this to be appropriate since the Claimant had not been given the chance to produce proof of evidence in the matter.
He addressed the legal principles applicable to applications of this nature. He referred to the case of Jeynes v News Magazine:
“(1) The governing principle is reasonableness”.
“2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious”.
“(3) Over-elaborate analysis is best avoided”.
“(4) The intention of the publisher is irrelevant”.
“(5) The article must be read as a whole, and any ‘bane and antidote’ taken together”.
“(6) The hypothetical reader is taken to be representative of those who would read the publication in question”.
“(7) the court should rule out any meaning which, ‘can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation …’ …”
“(8) ‘it is not enough to say that by some person or another the words might be understood in a defamatory sense.'”
As Mr Justice Dingemans observed, the submissions raised the issue of “bane and antidote”. He explained that if, after reading through the article a “stain” is removed from some other part of the article then the bane and antidote must be considered together in deciding whether it is defamatory and, whether the antidote had removed the bane, was a matter of impression. In the case of Cruise v Express Newspapers the suggestion had been that it would be unusual for the antidote to have removed the bane. As Mr Justice Dingemans noted, there is no rule of law that an antidote will always remove the bane, it is an issue “for the hypothetical reasonable reader”.
He noted that the submissions also raised the repetition rule which meant that reporting matters such as “rumours the singers were using hard drugs” cannot be defended by basing that report on rumours and, that it was necessary to prove the truth of that statement, that he was using hard drugs. He noted the submissions before him had raised matters as to whether the articles had sustained the meaning that the Claimant “had actually committed the act and used hard drugs, which is sometimes referred to as a Chase level 1 meaning” from the case of Chase v News Group Newspapers 2003 with a Chase Level 2 meaning there are “reasonable grounds to suspect” and a Chase Level 3 meaning, “reasonable grounds to investigate”.
In his summary, Mr Justice Dingemans considered that the article in the Daily Star was capable of bearing the meaning. The banner headline was “new drug storm” and there were numerous references to a “Breaking bad-style drugs pipe” after a TV series which concerned crystal meth and its manufacture and sale, with various other references made to the Claimant. As he observed, the fact that the article can bear the meaning that the Claimant is using hard drugs is supported by the facts, in particular, references made to a Breaking Bad style drugs pipe from the TV programme.
He considered the same meaning applicable to the online articles. He also considered the articles to be capable of having Chase 2 and 3 meanings, reasonable grounds to suspect and reasonable grounds to investigate as to whether the Claimant used hard drugs which Mr Justice Dingemans observed, were meanings capable of being defamatory of the Claimant.
He concluded that “the statement is capable of having the meaning attributed to it in the Particulars of Claim, and that the statement is capable of being defamatory of the Claimant. I will therefore dismiss the application”.