Serious Harm Defamation Act 2013
In Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB) this is the first case the courts have considered serious harm under the Defamation Act 2013. The Sunday Mirror, in its edition of the 26th January 2014, published a story relating to a TV reality programme called Benefits Street. The newspaper story featured a Landlord renting out properties in the street, described as being in disrepair, for £215 a week. The story also referred to a dentist landlord and reference was made to the first Claimant Housing Association, Midland Heart Limited, Landlord of three of the homes and the second Claimant, Ruth Cooke its Chief Executive who they described as living in a big house in Gloucestershire on £179,000 a year.
The First and Second Claimants case was that the references made to them in the story in conjunction with the subject matter of the article, was defamatory.
On the 4th June 2014 Deputy Master Bard gave an order for a trial of two preliminary issues and directions for an extension of time for serving a defence. The issues were as follows:
“(1) Whether the words pleaded in paragraph 8 of the Amended Particulars of Claim (in the context of the entire article) bear the meanings pleaded in paragraph 9 or any other meaning that (subject to serious harm) is defamatory to either or both of the Claimants and, if so what defamatory meaning the words bear in relation to each Claimant.
(2) Whether either or both of the publications referred to in paragraphs 5 and 6 of the statement pleaded at paragraph 8 (in the context of the entire article) has caused or is likely to cause serious harm to the reputations of either or both of the Claimants within the meaning of section 1 of the Defamation Act 2013.”
Mr Justice Bean referred to the case of Jeynes v News Magazine Limited which established the principles to ascertain the natural and ordinary meaning of the words.
Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paragraph 14:
“(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (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) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, “can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…” …. (8) It follows that “it is not enough to say that by some person or another the words might be understood in a defamatory sense.”
Counsel for the Claimants, argued that reference to the Claimants had been made within the same context in the newspaper story as the other Landlords referred to and that no distinction had been made between them.
The Defendants’ Counsel, argued that the regular reader would know that a housing association is a non-profit making organisation assisting people in need and that they would be aware of the differences between that organisation and a private Landlord. The fact that the first Claimant earns a salary in excess of the tenants in that street and lives in a big house would not make that meaning in the story defamatory only a story of interest for the reader.
The Judge did not agree with the Claimants Counsel that the reasonable reader would associate the Housing Association with being a slum Landlord. The headline clearly referred to one of the other Landlords, which accusations were removed a few months later after he complained to the Press Complaints Commission (PCC).
The Judge also did not agree with the argument put forward by Counsel for the Defendant in respect of the reference to the first Defendant, Ruth Cooke, that the reader would just find the article interesting in reference to her big house and salary.
Mr Justice Bean found the natural and ordinary meanings of the words as follows:
(1)Midland Heart, whose chief executive is Ruth Cooke, is one of the well-off landlords of rented properties on James Turner Street who let houses to people in receipt of housing benefit at rents of up to £650 per month, thereby making money from the misery of James Turner Street residents; and that
(2)Ms Cooke is personally responsible for this conduct of Midland Heart, and has herself profited and become rich from it, in that she is paid £179,000 a year and lives in a large house in Gloucestershire.
An apology in the 2nd February 2014 edition of the paper was printed on the corner of page 2 of the Sunday Mirror. Counsel for the Claimants was not happy with the wording as this had not been previously approved by the Claimants or their Solicitors.
The Judge on looking at the apology from the stance of the reasonable reader thought it was enough to diminish any previous opinions the reasonable reader might have had formed from reading the original article in respect of the first and second Claimants.
Mr Justice Bean on considering evidence of serious harm looked at the evidence given by Ruth Cooke. The apology given had not refuted the accusations. It had prompted one of her professional contacts to question why the Second Claimant was linked adversely to the properties featured in the TV programme of Benefits Street. Counsel continued that it was not damage to reputation from a particular person but from the very many readers of the Newspaper.
He further considered the position of the Second Claimant, Midland Heart Limited. Their evidence was that they were reliant upon grants and other incomes where they would bid for tenders and the adverse publicity generated would affect future grants and public money. However, they were not aware of any loss of contracts.
Counsel for the Claimants argued that damage to their reputations would be by those who do not know them but would associate them with the Landlords portrayed in the TV programme.
The Judge commented that both Counsel had drawn to his attention that this was the first case brought under the new Defamation Act 2013 (the Act) which is applicable to all cases brought since the beginning of 2014.
Under s.1 of the Act (1) for defamation a statement has to cause or is likely to cause serious harm to the reputation and (2) harm to the reputation of a body trading for profit is not serious harm unless it causes them serious financial loss.
Lord Justice Bean preferred the submission from the Claimants Counsel that the date to ascertain when the harm occurred is the date of the claim taking into consideration whether the harm has actually taken place or when it is likely to happen.
He summarised the Claimants case on harm. They are dependent upon grants and bidding on tenders and hold a substantial reputation for high quality services which affects any relationship they have with those organisations they rely upon for contracts and grants if their reputation is harmed.
He accepted that some statements will cause serious harm to an individual’s reputation especially if a newspaper with a widely read circulation accused a person of for example being a terrorist which would cause serious harm to the reputation of that person even though their friends and family would know this to be untrue. There would be no need to provide evidence of serious harm in these cases, However in other cases such as this the newspaper story and the meaning relating to the Claimants did not compare at all and evidence would be required.
On looking at the question of serious harm to the reputation of the Claimants he found that the apology printed by the newspaper was significant in this case, he had already said that he believed that the apology diminished the affect the original newspaper story had on that reasonable person who had read both the story and the later apology. For other people the apology would be easily accessible on the internet.
Mr Justice Bean concluded that the First and Second Claimants had acknowledged that the newspaper story had not, up to now, caused any serious harm to their reputations and on consideration Mr Justice Bean could not see anything resulting further from this. Also the Claimants had not shown anything to suggest that this is likely to occur in the future.
He concluded that both issues raised by Deputy Master Bard on the 4th June 2014 be answered in the negative.