Simpson v MGN: Court of Appeal distinguishes between defamatory meaning and 'sting'
Simpson v Mirror Group Newspapers [2016] EWCA Civ 772
The Court of Appeal has allowed an appeal by the defendant to a defamation action after its defence of justification was struck out in a preliminary issue ruling by the High Court.
In allowing the appeal, the Court of Appeal made an unusual distinction between the 'meaning' of the defamatory publication and its 'sting', which preceding case law had regarded as synonymous.
Background
The Claimant is a professional footballer who brought a defamation claim in respect of an article published in the Daily Mirror in November 2012. As the publication preceded the Defamation Act 2013, it is being tried under the pre-existing common law defamation provisions.
The article alleged that the Claimant had entered into a romantic relationship with a female celebrity (Tulisa Contostavlos) and in doing so destroyed his relationship with his long-term partner Stephanie Ward.
Mr Simpson applied for an order that the court try as preliminary issues the meaning of the words complained of, and whether they were defamatory, and for the immediate trial of those issues. The defendant, Mirror Group Newspapers (MGN), consented to that application, but disputed Mr Simpson's meaning.
Mr Justice Warby upheld the defamatory meaning complained of by the claimant, concluding the following meaning:
"By entering a romantic relationship with the celebrity Tulisa Contostavlos the claimant was unfaithful to his loyal partner Stephanie Ward, with whom he was in a long-term and committed relationship, living with their daughter as a family; he did so despite Ms Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child; and by doing so he callously destroyed his relationship with Ms Ward and broke up an established family unit which was soon to be joined by the child they were expecting."
Accordingly, he granted an order striking out of the defence of justification (equivalent to the defence of 'truth' in the Defamation Act 2013) as disclosing no reasonable grounds for defending the claim. Specifically, the particulars of the defence did not allege that Ms Ward gave up her legal career for the sake of having children with the Claimant, nor did the particulars allege that the claimant and Ms Ward were living together as a family with their daughter at the time the claimant began his relationship with Ms Contostavlos; or that the Clamant's infidelity broke up an established family unit.
MGN did not appeal the finding on meaning, but were granted permission to appeal the order striking out MGN's defence of justification.
Submissions
MGN submitted that the fact that the particulars of justification did not make the "legal career" and "family" allegations did not mean that MGN could not or will not prove the whole of the libel's defamatory 'sting'.
The Claimant submitted that the "legal career" and "family" elements of the meaning clearly made a significant contribution to the sting otherwise they would not have been included by Warby J. Having accepted the judge's decision that these elements were enquired to be incorporated into the single meaning in order to encapsulate the full defamatory sting of the article, MGN could not now argue that proof of its particulars of justification could establish that the article was true.
Judgment
Giving the judgment, Lord Justice Laws concluded that once a publication's meaning has been ascertained, its defamatory sting, if there is one, will no doubt be manifest. However, he concluded that "the meaning [of the publication] having been found, it remains open to MGN to raise arguments as to the intensity of the libel’s sting.” In some instances the meaning of words and their defamatory sting ineluctably go together, "but not always".
Law LJ held that the essence of the sting was the assertion of "a selfish disruption of that committed family relationship". The extent to which the "family" and "legal career" elements went to that essential sting were to be ascertained by fact-finding at trial. He then concluded that what facts were proved was one thing, but whether they justify a libel's sting is another. The meaning of a defamatory statement does not necessarily establish the intensity of its sting.
Comment
The Court of Appeal's division of 'meaning' and 'sting' is unusual. Preceding case law has not drawn such a clear distinction and it has been assumed, at least by practitioners, that the terms were synonymous. Once meaning was determined by a judge, that meaning encapsulated the entire defamatory sting of the article.
The practical effect of this ruling may be far reaching. Even though this decision is under the pre-existing common law, it will undoubtedly influence the interpretation of the truth defence in section 2 of the Defamation Act 2013 which requires a defendant asserting this defence to prove that the 'imputation' (i.e. meaning) of the statement is substantially true.
This ruling potentially gives defendants a second bite of the cherry if a meaning is initially determined which does not correspond with a defendant's pleaded defence of truth. Determinations of meaning by preliminary issue may be rendered nugatory if a defendant can challenge that meaning by arguing that the 'sting' was different. Prior to this decision, it was understood that once meaning had been decided, it was that, and only that, which the defendant must prove to be substantially true in order for his defence to succeed. Defendants now have the potential to argue that it is not the case that “The meaning of the words and their defamatory sting (and its intensity) ineluctably go together.”