IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
B E T W E E N:
Claim No. HQ09X01648
ROBERT DEE
Claimant
-vTELEGRAPH MEDIA GROUP LIMITED
Defendant
_______________________
DEFENDANT’S PRIMARY SKELETON ARGUMENT
FOR HEARING ON 24 FEBRUARY
_______________________
Reading list:
Articles, application notice, witness statements, statements of case, skeleton arguments.
D has prepared a separate skeleton argument in relation to the application of the single
meaning rule.
Estimated length of reading time:
2 – 3 hours
Estimated length of hearing:
½ day to 1 day.
Overview
1. This is a straightforward claim which has been overly complicated in an attempt to
obscure its incurable defects.
To use the metaphors of Lord Hobhouse in Three
Rivers, what is required now is a focus on the “wood from the trees” and the “bottom
line”.1 At a previous hearing Eady J observed: “It is difficult to see what the Claimant
hopes to gain from this litigation. It may be true that the newspaper was "having a
laugh" at his expense, but it is not immediately apparent how the claim is likely to
restore or enhance his reputation”.2 On proper analysis, there is no rational basis on
which the tribunal of fact could conclude that C has been libelled.
There is no
relevant conflict of evidence. The evidence served by C for this hearing is irrelevant
to any of the issues to be determined. There is no need for a trial. The court is duty
bound to grasp the nettle now and prevent further costs and court resources being
applied to the claim.
1
Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at [158] cited recently by Eady J in Ali
v Associated Newspapers Ltd [2010] EWHC 100 (QB) at [12].
1
2. C is now 23 years old. At 16 he left Eltham College, despite having apparently
successfully completed his GCSEs and with no obvious success as a schoolboy
tennis player, to be trained in Florida at a top private coaching establishment in the
hope of achieving “great fame”. His strategy was “to gain my experience on the
world circuit by playing any world ranking matches I could get into, anywhere I could
and, in the process, hopefully see some of the world and gain valuable tournament
experience”.3
The letter of claim states: “After attending Nick Bollettieri’s tennis
academy in Florida in 2005, our client was advised by his coaches there to take
advantage of the opportunity to play in ITF Futures tournaments primarily to gain
experience of such tournaments at a higher level, notwithstanding that his prospects
of winning such matches at that level would initially be negligible. That was a
conscious strategy, which he was advised to follow by his coaches”.
4
It was C’s
prerogative to pursue such a strategy and for his father to finance it. However, its
consequences may properly be reported and commented on by the media.
The claim
3. The claim arises from material published on the front page and page 20 of the Sport
section of the issue of The Daily Telegraph of 23 April 2008 under the headings
“World’s worst tennis pro wins at last” and “A British tennis sensation – the world’s
worst”.5 To avoid unnecessary disputes about terminology, these will be described
as “the front page article” and the “S20 article”. C’s claim relates solely to the front
page article,6 but, in accordance with well-established principles, they must be read
as one for the purpose of determining meaning. The articles reported that C had lost
54 successive tennis matches in straight sets in three years on the “circuit” or
“international professional circuit”, which was the worst losing run.
4. C does not dispute the run of losses or that it was the worst. However, he states that
over this period he was also participating in domestic tournaments in Spain (“the
domestic Spanish tournaments”), that they were professional tournaments and that
2
Volume 1, tab 25 p242 at [5]
See extracts of C’s website at Volume 1, tab 38 p306-307
4 LOC at Volume 2 p3
5 Articles at Volume 1, tab 16 p190-191
6 POC at Volume 1, tab 18 p194
3
2
he secured some modest victories in them.7
The domestic Spanish tournaments
are outside the jurisdiction of the International Tennis Federation (“the ITF”), the
world governing body of tennis and the Association of Tennis Professionals (“the
ATP”), which organises the ATP World Tour and maintains the official international
ranking system in men’s professional tennis.
The domestic Spanish tournaments do
not give rise to any world ranking points. This much is common ground. It is also
clear that they are not part of “the circuit” or “the international professional circuit”, as
these terms are commonly used in the tennis world. Throughout this litigation C has
devoted much time and cost to aggrandising the Spanish tournaments and to
obfuscating the clear distinction between them and world ranking tournaments on the
international professional circuit.
5. Unsurprisingly, a large number of other media outlets covered the story. On 27 April
C and Alan Dee gave an interview to The Sunday Times in which C stated that he
felt “a little bit hard done by”. In contrast, Mr Dee was said to be “so angry...by some
of the mocking articles written about his son that he sought the counsel of
solicitors”.8 On 19 May Alan Dee registered the website www.robertdee.co.uk . In
the biography section the following is attributed to C: “I never believed that by the
time I was 21 I would have achieved great fame, I didn’t think I would be ready. But
on 22 April 2008, my life changed forever. Having been previously unknown to
almost everyone in the tennis world, I suddenly became famous overnight and that
story you can read in another area!”
9
The other area includes the reproduction of a
cheque from C’s solicitors for the sum of £12,500 from the BBC and a photograph of
C with a cheque from ANL for £15,000.10
6. C’s solicitors (“AG”) sent a prompt letter of claim on 30 April 2008. It is noteworthy
that the complaint, at this stage, related to both articles and identified the following
meanings, which were derived from the words on S20:“That he unreasonably and unrealistically persists in a career as a professional
tennis player which is an expensive waste of money and doomed to failure.
That because of our client’s lack of success he is virtually unknown to the LTA.”
7
Volume 2 p3
Sunday Times article at Volume 1, tab 39 p311-312
9 Volume 1, tab 38 p307
10 Volume 1, tab 38 p308-310
8
3
There was also a claim for malicious falsehood.11
7. The correspondence petered out with a letter from D’s solicitors on 28 May 2008
offering, without admission of liability, a clarification in relation to the Spanish
tournaments, which was not accepted.12 AG picked up the correspondence again in
February 200913 and proceedings were eventually issued on 21 April 2009, shortly
before the expiry of the limitation period.14
8. In the interim, C had commenced or threatened proceedings against a number of
other publishers. They are referred to in the witness statements of David Engel, the
supervising partner at AG,15 and Alan Dee in relation to this application.16 The fact
that other publishers have capitulated in respect of different articles is irrelevant to
the present application. It is, nevertheless, worth noting the evidence of Reuters’
solicitor, Keith Mathieson to the Parliamentary Select Committee. His observations
also serve to underline the important policy factors in relation to CPR 24:
“While I have got your attention, may I just mention one particular case I have had recently
which shows the way in which CFAs operate in practice against the media. This was a case
in which I acted for Reuters who were sued by a professional tennis player - not a well-known
professional tennis player. His complaint was over a report that he had the worst record in
professional tennis. This was not a desperately important story, nor was it a story which
required much in the way of investigation or defence in the event that it was eventually to
come to court. The tennis player employed his solicitors on a no-win no-fee basis. Reuters
was extremely keen to defend the allegation. It thought that what it had published was
basically true. There were, as there always are, slight niggles over aspects of the report, but
basically Reuters was very keen to defend the case, and wanted to defend the case; it
wanted to show that its journalists had done a proper job. Eventually it decided that it had
really no option but to settle because it was faced with potential costs of trial for this
comparatively unimportant libel case of £1.2 million. Those were the costs that it was going to
have to pay the other side if it took the case to trial and lost. As you probably know,
defendants do not have great record when it comes to taking cases before juries. So there
was a clear risk even in a case where it was advised that it had a pretty strong case. It settled
some four months before trial after the case had been going for five or six months; the costs
that Reuters is now being asked to pay the other side are £250,000; that compares with
Reuters' own costs of £31,000; so there is a massive disparity between the costs that are
being claimed by claimant lawyers and the costs that are actually being charged to large
international media organisations by firms such as mine.”17
11
Volume 2 p1-5
Volume 2 p23
13 Volume 2 p24
14 Volume 1, tab 17
15 Witness statement of David Engel at Volume 1, tab 15
16 Witness statement of Alan Dee Volume 1, tab 14
17 Volume 1, tab 46, p367-368
12
4
9. No explanation has been given of why The Telegraph is the Tail End Charlie. It
seems inconsistent with the suggestion in Alan Dee’s witness statement that The
Telegraph’s coverage was particularly damaging.
A comparison of the media
coverage would suggest that the substantial delay was for purely tactical reasons.
Only The Telegraph referred explicitly to the Spanish tournaments and made clear
that the 54 consecutive defeats were on the circuit and not in every tennis match that
C played over the relevant period. No doubt, C’s advisors hoped that it would fold
once the others had been picked off.18
10. The POC firmly limit the claim to the front page article. POC [4] advances the
following meaning:“In their natural and ordinary and/or inferential meaning, the words complained of
above meant and were understood to mean that until his win at the Reus tournament
near Barcelona, the Claimant had lost 54 consecutive professional matches during
his three years on the professional tennis circuit, and had therefore proved himself to
be the worst professional tennis player in the world.”
It is not clear why a distinction has been drawn between a “natural and ordinary”
meaning and an “inferential” meaning. No legal innuendo is pleaded.
11. What is apparent from the pleaded meaning, is that C’s complaint is entirely
dependent on his contention that the 54 consecutive defeats fail to take into account
the domestic Spanish tournaments. Hence the phrase “54 consecutive professional
matches” and the attempt to isolate the front page from S20, in which the reader is
told that C had also been playing in tournaments on the “Spanish national tour”.
There is no longer any attempt to contend that the humorous parts of the S20 article
are unlawful. The complaint is limited to the run of 54 defeats and the suggestion
that it ranks as the world’s worst.
12. The Defence denies that either article is defamatory and advances substantive
defences of justification and fair comment in relation to the following meanings:“5.1.
The Claimant lost 54 consecutive matches in straight sets in tournaments
on the international professional circuit; and/or
18
See AG’s letter of 9 February at Volume 2 p24
5
5.2.
The Claimant lost 54 consecutive matches in straight sets in tournaments
that contribute to a player’s world ranking;
5.3.
In consequence, he merited being ranked or described as the world’s
worst professional tennis player.”
These tournaments are defined in the Defence as “Eligible Professional
Tournaments”.19
13. Subsequent to the Defence C has served a Reply and three Part 18 Responses.20
Each has sought to muddy the clear blue water between the Eligible Professional
Tournaments and the domestic Spanish tournaments. In particular, C has raised
pettifogging points in relation to minor amendments to the professional rules which
have nothing to do with any of the issues raised by the claim. He has repeatedly
failed to put his cards on the table in relation to the use of “the circuit”, “the word
circuit” and “the international circuit”, notwithstanding the judgment and order of Eady
J in this regard. Most recently, he has introduced the concept of an “ITF Futures
Qualifying Draw Tournament”, in a misguided attempt to extricate 41 of his defeats
from the 54. 21 These matters are addressed further below.
14. AG have submitted a costs estimate of over £500,000 excluding success fees and
ATE insurance premium.22
Before proceedings were issued D offered a mutual
costs cap of £50,000.23 Eady J noted that: “To an outside observer, it may seem
difficult to understand how the case could give rise to such expenditure”.24 This is all
the more so when AG have already managed to generate £250,000 against Reuters
(the claim on assessment was, in fact, over £350,000), £28,000 against the BBC and
no doubt further sums in relation to other publishers. These have all been directed to
the same basic point in relation to the domestic Spanish tournaments. What is
invidious about such massive costs, as Mr Mathieson and many judges have
observed, is that they pressurise a defendant into settling unmeritorious cases on a
purely commercial basis. In this context, CPR 24 is a salutary power.
19
Defence at Volume 1, tab 19
Reply at Volume 1, tab 20, Part 18 Responses at Volume 1, tabs 22, 23 &24
21 See 3rd Part 18 Response at Volume 1, tab 24 p237 at [13.1]
22 Volume 1, tab 35 p260-266
23 Volume 2 p31
24 Volume 1, tab 25 p242 at [5]
20
6
15. By this application D seeks summary judgment under CPR 24 in relation to the whole
of the claim.25 This is on the basis that, in the event that the article/s are held to be
defamatory of C, he has no real prospect of rebutting the justification and/or fair
comment defence. Alternatively, it is submitted that the article/s are not capable of
being defamatory of C.
The various possible outcomes are considered further
below. Essentially, whichever way C seeks to present his case, no tribunal of fact
could rationally conclude that he has been libelled.
16. Part of D’s case is that the front page and S20 article must, as a matter of law, be
read together for the purpose of determining meaning. However, it remains D’s case
that even if the front page article is read in isolation, C still has no real prospect of
success.
D’s submissions in relation to this construction point are set out in a
separate skeleton argument, as it will not be necessary for the Court to determine
the point, if D’s submissions in relation to the front page article are accepted.
Relevant legal principles
17. The burden placed on an applicant in a summary judgment application in a
defamation claim is well established and is set out in Gatley at [32.30]. The most
common obstacle to such an application is the existence of contested evidence
which a jury could resolve in favour of the respondent. Where, in contrast, the issue
is the conclusion to be drawn from admitted or incontrovertible facts, the court is in a
better position to determine the matter summarily. Indeed, the court is duty bound to
reject any unreasonable conclusion contended for by the respondent. If not, the
applicant will be “wrongly burdened with defending libel proceedings [which]... can be
a very onerous burden and one which interferes with the right of freedom of
expression”.26 Where the costs are substantial it becomes all the more important for
the Court carefully to scrutinise the viability of the claim at the interim stage.
18. The Court is reminded of the policy factors underpinning CPR 24:"It is important that a judge in appropriate cases should make use of the powers
contained in Part 24. In doing so he or she gives effect to the overriding objectives
contained in Part 1. It saves expense; it achieves expedition; it avoids the court's
resources being used up on cases where this serves no purpose, and, I would add,
25
Application Notice at Volume 1, tab 1
Tugendhat J in John v Guardian News & Media Ltd [2008] EWHC 3066 (QB) at [16], cited by
Sharp J in Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB) at [10].
26
7
generally, that it is in the interests of justice. If a claimant has a case which is bound
to fail, then it is in the claimant's interests to know as soon as possible that that is the
position."27
It is very easy for a claimant to come before the court and argue that the claim is not
sufficiently clear-cut and he is entitled to his right to a jury trial. It is important to
ensure that the claimant is not deliberately and unnecessarily over-complicating
matters and to focus on the issues that would properly fall to be determined if the
case proceeded to trial. A failure to do so will frustrate the purpose of Part 24.
19. There have been a number of previous cases in which the court has upheld interim
applications by defendants on the basis that the justification defence was bound to
succeed on the basis of the admitted or incontrovertible facts.28 An appellate court
may make a similar ruling after a trial.29 The issue is always whether there is any
rational basis on which the tribunal of fact could conclude that the publication was
not true or substantially true.
20. D’s primary case is that the article is wholly true in any defamatory meaning that it is
capable of bearing.
However, if it is necessary to consider substantial truth,
reference should be made to the principles set out by Eady J in Turcu v News Group
Newspapers Ltd [2005] EWHC 799 (QB) at [108-111]:108.
….. It is necessary to remember what has been said more than once in the
European Court of Human Rights to the effect that journalists, in the exercise of their
rights to freedom of expression, need to be permitted a degree of exaggeration even in
the context of factual assertions (not only when making comments or voicing their
opinions): See e.g. Bladet Tromsø & Stensaas v Norway (1999) 29 EHRR 125 at [58][59]; Reynolds v Times Newspapers Ltd [2002] 2 AC 127, 204.
109.
As was suggested in Branson v Bower (No. 1) [2001] EMLR 800 at [8] and in
Berezovsky v Forbes Inc [2001] EWCA Civ 1251 at [9], English law is generally able to
accommodate the policy factors underlying the Article 10 jurisprudence by means of
established common law principles; for example that a defamatory allegation need only
be proved, on a balance of probabilities, to be substantially true. The court should not be
too literal in its approach or insist upon proof of every detail where it is not essential to the
sting of the article. So too the demands of a defence of justification are sometimes
mitigated by the terms of section 5 of the Defamation Act 1952 (although not of relevance
here).
27
Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91, 94 cited in Ali at [13]
See for example Johnson v Perot Systems Europe [2005] EWHC 2450 QBD at [114], Robson v
News Group Newspapers Ltd Unreported 9 October 1995 HHJ Previte QC and Ali v Associated
Newspapers Ltd [2010] EWHC 100 (QB).
29 See Gatley at [38.19].
28
8
110.
Each case obviously depends on its own unique circumstances and the
application of these considerations of public policy will to a large extent be a matter of
impression. Here, Mr Price contends that the gap between what was published about his
client and the facts established at trial is simply "unbridgeable". He reminded me also of
the words of Simon Brown LJ in Grobbelaar v News Group Newspapers [2002] All ER
437 at [40]: "If the newspapers choose to publish exposés of this character,
unambiguously asserting the criminal guilt of those they investigate, they must do so at
their own financial risk". True no doubt, but it does not assist when one comes to decide
on the particular facts.
111.
In deciding whether any given libel is substantially true, the court will have well in
mind the requirement to allow for exaggeration, at the margins, and have regard in that
context also to proportionality. In other words, one needs to consider whether the sting of
a libel has been established having regard to its overall gravity and the relative
significance of any elements of inaccuracy or exaggeration. Provided these criteria are
applied, and the defence would otherwise succeed, it is no part of the court's function to
penalise a defendant for sloppy journalism – still less for tastelessness of style. I must set
all that to one side, including what Mr Price described as the "orgy of self-congratulation",
and focus only on substance.
21. Where the facts upon which the defendant relies are uncontested and/or clearly true,
but the claimant relies on other facts which he contends bear on the substantial truth
of the publication, the court must ask whether the tribunal of fact could rationally
conclude that the facts relied on by the claimant make any difference to the court’s
conclusion on the basis of the uncontested facts relied on by the defendant. 30
Putting it another way, do the facts advanced by the claimant (even assuming them
to be true) materially affect any defamatory impression conveyed by those relied on
by the defendant in the context of the publication complained of? On what rational
basis could the facts advanced by the claimant render the publication libellous?
22. Where a publication is only barely defamatory, an error or exaggeration is less likely
to be materially defamatory.
23. The determination of truth or substantial truth may be linked to the determination of
meaning. However, any potential differences in meaning between the parties must
a) have the capacity to make a difference to a rational decision on truth or substantial
truth and b) the claimant’s meaning must be a capable meaning.
The articles
24. For convenience, both articles are set out below.
9
Front page
“World’s worst tennis pro wins at last
By Mark Hodgkinson
A BRITON ranked as the worst professional tennis player in the world after 54
defeats in a row has won his first match.
Robert Dee, 21, of Bexley, Kent, did not win a single match during his first three
years on the circuit, touring at an estimated cost of £200,000.
But his dismal run ended at the Reus tournament near Barcelona as he beat an
unranked 17-year-old, Arzhang Derakshani, 6-4, 6-3. Dee, below, lost in the second
round.
Full story: S20:
Page S20
“A British tennis sensation – the world’s worst
British globetrotter Dee ends his losing streak at the 55th time of asking, writes Mark
Hodgkinson.
IN the history of British tennis failures, and it’s been a long and rich history, no one
had previously come close to the serial defeats that have flowed from the racket of
Robert Dee, a 21-year-old from Bexley, Kent. Perhaps Dee has earned the right to
be bracketed with such global sporting icons as ski-jumping’s Eddie the Eagle or
swimming’s Eric the Eel.
Dee said last night he had found his new fame “a bit odd”, but raise a glass of
Pimm’s to him, as when it comes to losing he’s absolutely world class.
Dee recently equalled the world record for the longest run of consecutive defeats,
after his first three years on the international professional circuit saw him lose 54
matches in a row, and all of them in straight sets. That’s 108 lost sets in succession.
Dee sounded baffled yesterday as he reacted to claims that he might just be the
world’s worst professional tennis player. “I honestly didn’t know about the record so
all the attention is a bit odd,” he said. “Obviously it was great to get my first win but I
can’t believe that people don’t have anything better to write about. I’m just going to
keep on playing and improving and working hard with my coaches. Hopefully that will
mean more wins at these sorts of tournaments.”
His father Alan, said that describing him as a total no-hoper “was laughable and
incorrect”, adding: “The Lawn Tennis Association have given him a rating of 4.2 and
that is very impressive.”
Paul Henderson, his former head teacher at Eltham College, said: “Rob was never
the school champion but he was very methodical about his tennis. We often
wondered if we would hear of him again.”
Dee has lost around the planet, in Iran, Senegal, Colombia, Botswana, Venezuela,
Rwanda, Kenya, Sudan, Mexico, the United States, Norway, Holland and Spain.
Almost all of his tennis has been played at Futures tournaments, which are the
lowest rung of the proper professional circuit. Dee’s travel expenses must run to
hundreds of thousands of pounds. And yet he has won a fraction of that back in prize
money.
Why didn’t he just give up, you might ask. But you also have to admire Dee’s
perseverance as his losing record went on and on and expensively on. A
spokeswoman for the LTA confirmed yesterday that Dee had not received any official
30
See for example Ali above, and by analogy the approach of Eady J in Branson v Bower (No2)
[2002] QB 737.
10
funding, and instead received money from his parents, with his father a managing
director of a shipping firm.
Dee’s lack of success means that he doesn’t have a proper world ranking and until
this week the LTA knew next to nothing about him. Even the Kent county office were
largely in the dark, regarding Dee as something of a jet-setting man of mystery,
whose long-awaited win came in Spain last week when he beat American Arzhang
Derakhshani 6-4, 6-3. But he was brought down to earth when he immediately lost 63, 6-1 to Poland’s Artur Romanowshi.
Dee is now living and training in La Manga, Spain, and in recent months has been
playing tournaments on Spain’s national tour. Apparently, he’s even threatening to
break into the top 500 of players based there. Roger Federer, beware.
National failings
1 Eddie “the Eagle” Edwards
In 1998, became Britain’s first and only ski jumper to reach the Winter Olympics – he
had no rivals and was the only British option. At 20lb heavier than nearest
competitor, he finished last in the 70m and 90m events.
2 England cricket team 2006 – 07
After the euphoria of winning the Ashes the previous summer, Duncan Fletcher’s
men became 5-0 whipping boys Down Under.
3 Devon Loch
Dick Francis was cruising to victory in the 1956 Grand National when the Queen
Mother’s horse slipped and collapsed yards from the winning line.
4 England’s Euro 2008 squad
Steve McClaren, the ‘wally with the brolly’, couldn’t lead England’s ‘golden
generation’ to the finals. Failure to reach a major tournament for the first time since
the 1994 World Cup may cost the British economy £2billion.”
The uncontested and incontestable facts
25. The following facts are admitted by C (although this may not be not be immediately
apparent from the Reply and the Part 18 responses):a. The run of 54 defeats were in tournaments that are under the jurisdiction of
the ITF or ATP.
b. They are all world ranking tournaments.
c. It is the worst ever run of defeats in such tournaments.
d. The domestic Spanish tournaments are not under the jurisdiction of the ITF or
ATP and are not world ranking.
26. In relation to b. above, this is admitted by virtue of paragraph 5.12 of the Defence,
paragraph 26 of the Reply and Responses 3 to 5 of the Part 18 Response of 24 July.
However, in the Part 18 Response of 20 November, signed by C, he sought to
introduce the concept of “ITF Futures Qualifying Draw Tournaments” as comprising
11
separate tournaments from the Main Draw.31 50 of C’s defeats were in Futures
tournaments and 41 were in Qualifying Draws. Success in the Qualifying Draws
does not, of itself, lead to the award of world ranking points. C’s purpose is to extract
41 of his defeats from his record in world ranking tournaments.
27. The short answer to this point is that what matters is whether the tournament is
capable of giving rise to world ranking points, not whether every person who plays in
it does end up winning points. The fact that the C was unable to make it past 41
Qualifying Draws is hardly something that should assist his case. Moreover, all the
evidence conclusively demonstrates a) that the Qualifying and Main Draws are part
of the same tournament, as C has recognised by his own public statements and b)
that the first known use of the term “ITF Futures Qualifying Draw Tournament” was in
C’s Part 18 Response.32 Accordingly, it is clear that a player in a Qualifying Draw is
participating in a world ranking tournament.
28. The facts identified in paragraph 23 above are sufficient to justify any defamatory
meaning that the words are capable of bearing, including that advanced by C.
29. Furthermore, on the evidence before the Court, it is incontestable that the 54 defeats
were on “the circuit”, “the word circuit” and/or “the international professional circuit”
as such terms are commonly used.33 As Eady J recognised, this issue is directed to
justifying what was published; not to adducing evidence in relation to meaning. C
has repeatedly refused to engage with the issue, notwithstanding Eady J’s order
requiring him to “put his cards on the table”. A careful analysis of the Reply and the
three Part 18 Responses reveals that C accepts that the terms have “various
meanings and can be used in different contexts” but denies that they are in
commonly usage in the manner contended for.34 C has chosen not to elucidate the
“various meanings”.
31
Response 13 confirmed by AG letter of 15 January at Volume 2 p143
See the second witness statements of Bruce Philipps at Volume 1, tab 6, Jackie Nesbitt at
Volume 1, tab 7 and the first witness statement of Julia Varley at Volume 1, tab 8
33 See witness statements of Chris Kermode at Volume 1, tab 2, Barry Cowan at Volume 1, tab 3,
Boris Becker at Volume 1, tab 4, John Lloyd at Volume 1, tab 5 and the second witness
statement of Bruce Philipps at Volume 1, tab 6.
34 See [9 – 17] of 1st response at Volume 1, tab 22 p225-226
32
12
30. D has adduced witness statements from 5 eminent witnesses (including one of C’s)
which clearly and indisputably make good D’s case in regard to the common use of
the relevant terms.
31. C’s evidence in response is extremely limited, carefully worded and (in accordance
with his approach to the statements of case) striking by what is not said. C states at
[19]: “..there is no particular word or phrase which I would use, or which I think is
generally used in tennis, to distinguish ITF sanctioned tournaments from other
professional tournaments organised by the RFET or, for example, by the LTA in
Great Britain. The Defendant says that the phrase “international professional circuit”
is in common usage to distinguish ITF sanctioned tournaments from other
professional tournaments and circuits, but I have never heard this term being used”.
C once again refuses to state his understanding of “the circuit” or “the word circuit”.
This is notwithstanding his publicly stated strategy of gaining “experience on the
world circuit by playing any world ranking matches” [emphasis added].35 Daniel
Dios, C’s Spanish coach, says that he has never heard the term “international
professional circuit”.36 Somewhat elliptically, he states that in his experience the
terms “the circuit” or “the word circuit” do not have any special meaning. This is not
an answer to the unambiguous evidence served in support of the application. Mr
Engel simply exhibits the outcome of a search of material written by Mr Hodgkinson,
which, on analysis, supports D’s case. 37
32. It is notable that, notwithstanding that C’s evidence is supposed to be in reply to D’s,
AG did not show D’s witness statements to their witnesses. C’s evidence fails to put
forward any alternative meaning of “the circuit”. This is evidently a widely used
shortened form of “the international professional circuit”, which was used in the front
page article.
33. C’s attempts at expensive obfuscation on this issue should end now. This is an
adversarial contest. C has had two months to respond to D’s witness statements
and four statements of case in which to set out a proper case. On the evidence
before the Court, the only finding reasonably available to the tribunal of fact at trial is
35
Witness statement of C at Volume 1, tab 9 p50
Witness statement of Daniel Dios at Volume 1, tab 10 p68 at [24]
37 Volume 1, tab 15
36
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that the tournaments in which the Claimant had the losing run of 54 defeats were
part of “the circuit” and/or “international professional circuit” (as such terms are
commonly used in relation to the profession of tennis) and that the domestic Spanish
tournaments were not. The Court is duty bound to make this finding now.
Matters that are irrelevant
34. C has directed considerable time and cost to aggrandising the standard and status of
the domestic Spanish tournaments in an attempt to put them on a par with ITF
Futures tournaments.
One might think that the very fact that he secured some
victories in the domestic Spanish tournaments while consistently losing in straight
sets in ITF Futures matches would suggest that the standard was radically lower.
Moreover, C’s public statements have drawn a clear distinction between the two
types of tournaments. For example, he referred to an ITF Futures victory in April
2008 as “his first win”, notwithstanding he had been playing in domestic Spanish
tournaments for some time and stated:
“I’m just going to keep on playing and
improving and working hard with my coaches. Hopefully that will mean more wins at
these sorts of tournaments”.38 His letter of claim acknowledged that the ITF Futures
tournaments were at “a higher level” and “his prospects of winning such matches at
that level would initially be negligible”.39
35. The outcome of this libel claim cannot turn on an assessment of the respective
standards of play in the domestic Spanish tournaments and ITF Futures tournaments
and C’s evidence in this regard is irrelevant.
36. C also seeks to establish that the domestic Spanish tournaments are professional
tournaments.
Attempts by D in correspondence to establish what C means by
“professional” have not proved fruitful.40 The ITF appears to accept that where prize
money is offered they will regard them as professional.41 It also appears that some
of C’s victories were in tournaments where prize money was available. It does not
appear that C has ever won any prize money.
38
Volume 1, tab 38, p306-307
Volume 2 p1-5
40 Volume 2 p117-120
41 See first witness statement of Jackie Nesbitt at Volume 1, tab 11 p134 at [7]
39
14
37. The precise status and standard of the domestic Spanish tournaments are irrelevant
to the proper determination of this claim. For the reasons set out below, the only
relevant facts are that they are not sanctioned by the ITF or ATP, do not give rise to
world ranking points and (insofar as is necessary) they are not part of “the circuit” or
“the international professional circuit”. Insofar as is necessary, it is submitted that,
whatever the standard, they are clearly of far lesser status than ITF/ATP
tournaments.
The application of the principles to the facts
Justification bound to succeed
38. The pleaded meaning can be divided into two allegations. Firstly, that C had lost 54
consecutive professional matches. Secondly, that he has proved himself to be the
worst professional tennis player in the world. It is not clear whether the alleged run
of losses is alleged to be defamatory in its own right or that it is merely the link to the
allegation that he is the world’s worst. It will be assumed that C contends that both
allegations are defamatory.
39. Put shortly, the fact that C lost 54 matches in a row in straight sets in his first three
years in world ranking ITF/ATP tournaments on the international professional circuit
and that this was the worst ever run, is, on any rational basis, sufficient to justify any
defamatory impression arising from anything that was said in the article/s about C’s
playing record.
40. There is no additional obligation on D to prove that C is objectively the worst
professional tennis player in the world in terms of his playing skills. The article is not
capable of bearing such a meaning. It is clear to the reader that the characterisation
of C as the world’s worst tennis player is simply a consequence of his unprecedented
record of defeats. Moreover, POC [4] also links the “world’s worst” allegation to the
playing record.
41. To subject D to a “penalty” in defamation if it could not prove objectively that C was the
world’s worst player, would also be contrary to the “policy factors underlying Article 10”
identified in Turcu. It would be impossible to prove; how would a jury objectively
determine playing skill and what would be the cut-off point in determining whether a
comparative player was a professional? It would also unnecessarily inhibit the
15
reporting of statistics in competitive sport to require proof of objective qualitative
factors (which may be impossible to prove) in addition to raw data of performances.
42. Alternatively, insofar as the “world’s worst” is found to be a value judgment, it is clearly
fair comment.42
43. Does the fact that C won matches in the domestic Spanish tournaments during the
same period make any difference? The only rational answer is that, for a number of
reasons, it cannot.
a. Even if the front page is seen in isolation, it is not capable of being
understood to refer to all matches played by C during the period. It is obvious
from the references to “ranked as the worst professional tennis player in the
world” and the “circuit” that the consecutive defeats were in tournaments
contributing to a world ranking. The ordinary meaning of “circuit” in a sporting
context, which would be known to the ordinary reader, is a series of
competitions held in different places. The use of “the circuit” suggests that it is
a recognised term in tennis. There is no reason for an ordinary reasonable
reader, who is unaware of its technical meaning, to conclude that “the circuit”
equates to all matches played over the period.
b. Furthermore, the S20 article explicitly refers to the domestic Spanish
tournaments, thereby drawing a clear distinction between them and those on
the international professional circuit: “Dee is now living and training in La
Manga, Spain, and in recent months has been playing tournaments on
Spain’s national tour. Apparently, he’s even threatening to break into the top
500 of players based there”.
The ordinary reader does not have know
anything about tennis to understand that “the tournaments on Spain’s
national tour” are not part of the international professional circuit. Moreover,
“international” is in obvious in contrast to “national”. Readers are also told that
“Dee recently equalled the world record for the longest run of consecutive
defeats, after his first three years on the international professional circuit” and
that following his “first win” he hopes to achieve “more wins at these sorts of
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tournaments” [emphasis added] i.e. those on the international professional
circuit.
c. Even if the domestic Spanish tournaments are properly to be regarded as
professional and an ordinary reader is capable of understanding the article/s
to mean that C had lost 54 consecutive professional matches, it would still be
unreasonable to find that the article/s were libellous.
i. No rational tribunal of fact when informed of the admitted facts
(alternatively, the admitted and incontrovertible facts) could conclude
that the failure to include the domestic Spanish tournaments in C’s
professional record gives rise to a material defamatory falsehood in
the context of a) any defamatory impression of C drawn from the
article/s (insofar as it relates to his playing record) and b) any
defamatory impression of C drawn from the truth.
ii. The only defamatory sting (if there is one) is that C has lost a very
large number of tennis matches and, in particular, the longest record
of consecutive defeats in the world. This is indisputably true. The
tournaments that comprise the record are based on rational grounds
(and the only record available). The ATP ranking system is the world
ranking system. There is no world ranking system that also takes into
account performances in non ITF/ATP tournaments. The fact that C
won some matches in lesser status tournaments in Spain during the
same period, does not detract from the fact that he holds the longest
record for consecutive defeats based on the official world ranking
system.
iii. As Eady J held in Turcu at [111]: “In deciding whether any given libel
is substantially true, the court will have well in mind the requirement to
allow for exaggeration, at the margins, and have regard in that context
also to proportionality. In other words, one needs to consider whether
42
In accordance with the principles in set out in Branson v Bower (No.2) above.
17
the sting of a libel has been established having regard to its overall
gravity and the relative significance of any elements of inaccuracy or
exaggeration. Provided these criteria are applied, and the defence
would otherwise succeed, it is no part of the court's function to
penalise a defendant for sloppy journalism – still less for
tastelessness of style. I must set all that to one side, including what
Mr Price described as the "orgy of self-congratulation", and focus only
on substance”.
On the assumption that the ordinary reader
understood the article/s to imply that the run of 54 defeats were in all
professional matches, at the worst there has been a failure to clarify
terminology that amply falls within the permitted degree of tolerance
recognised in the domestic and European authorities. It goes without
saying that the “having a laugh” factor – which is not now complained
of – must be put to one side. The focus is solely on substance.
iv. Put in the words of a layman apprised of the true facts, the only
rational response to C’s protestation that he won some matches in
Spain is: “So what? What matters is that you lost 54 matches in
ITF/ATP world ranking tournaments on the international professional
circuit in a row and in straight sets and that is the worst ever run of
defeats. The Spanish tournaments are not ITF or ATP tournaments,
they are not world ranking or part of the circuit”.
v. This determination can and should be made at the interim stage as
there is no relevant conflict of evidence.
44. Moreover, any libel penalty based on a finding that an ordinary reader would not
understand the meaning of “the circuit” or “the international professional circuit”
would be contrary to Article 10. It is a settled part of the Strasbourg jurisprudence,
approved by the House of Lords, that the form in which information and ideas are
expressed is generally for the publisher to decide, without interference from the
domestic courts.43 The media is entitled to exercise its own judgment in the
43
See for example Jersild v Denmark [1994] ECHR 33 at [31] cited with approval by Lord
Hoffmann in Campbell v MGN Ltd [2004] AC 457 at [108].
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presentation of journalistic material. The present case relates to article/s about
tennis. Mr Hodgkinson has chosen to employ terms, which, on the evidence, are in
common use in the tennis world and which have been used correctly by him. Implicit
in any finding of libel, on C’s case, would be that the ordinary reader did not
understand precisely what is meant by them and therefore failed to understand the
true nature of C’s serial defeats. The ordinary reader is a device to control liability.44
He fails in this process if a deemed lack of knowledge gives rise to a finding in libel in
a case where the journalist has expressed lawful information and ideas in a form
appropriate to the subject matter and clearly within the discretion afforded to him.
Not capable of being defamatory
45. There is under English law no general cause of action for the publication of false
statements in the media or elsewhere. In cases involving newspapers, the Press
Complaints Commission’s Code of Conduct may provide some remedy. Where the
statement is calculated to cause financial loss and published maliciously, a claim in
malicious falsehood will be available. Modern developments in harassment, privacy
and data protection have provided additional remedies in appropriate circumstances.
However, it is an unavoidable requirement for a claimant in a defamation claim to
demonstrate that the statement in question is defamatory of him. In the modern era,
the appropriate threshold must be interpreted consistently with the “necessity”
requirement in Article 10. Setting the bar too low devalues the tort.45
46. As previously stated, C does not attempt to allege that the arguably humorous parts
of the S20 article expose him to ridicule.46 The complaint is limited to the run of 54
defeats and the suggestion that it ranks as the world’s worst.
47. The risk of defeat is an inevitable part of sporting competition, particularly for a young
player in the first years of competition. It cannot be defamatory to state that a player
has lost a tennis match. If it cannot be defamatory to state that a player has lost one
match, why should it be defamatory to state that he has lost a large number on the
44
See Gatley [3.25] fn 256.
See the approach of Sharp J in Ecclestone above.
46 An exposure to ridicule generally arises from an imputation of some conduct on the part of the
claimant that would make right-thinking people think the worse of him. It is questionable whether
absent of such an imputation, the publication should be actionable, particularly in the light of
developments in misuse of private information and harassment.
45
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trot?
The risk of consecutive defeats is an equally inevitable part of sporting
competition, as is the fact that someone has to have the worst playing record over a
particular period.
48. There appears to be no previous case in which a sportsman has sued in defamation
in relation to a statement concerning his playing record. None of the cases referred
to in Gatley [2.35] are on point. The majority involve allegations which involve moral
blame. The editors suggest at [2.26], as a general test in relation to allegations
concerning “business, trade or profession”, that the “words must impute to the
claimant some quality, which would be detrimental, or the absence of some quality
which is essential, to the successful carrying on of his office, profession or trade”. (It
may be that this test is too favourable to a claimant in that it might include certain
allegations such as a physical injury which would obviously not be defamatory).
49. It does not follow from the fact that a young tennis player has lost a large number of
consecutive matches in his first years that he lacks an “essential quality” to be a
professional. The article records the fact that C has won his first match and his
intention to add to his success. It is clear that he is continuing with his career and
there is no suggestion in the article that he lacks any essential quality to make it
work. Nothing is said about the reason for his defeats. No defect in his play is
identified. POC [4] does not suggest that the article imputes any incompetence to C,
notwithstanding the pleader’s stated intention to cover inferential meanings.
50. The limited part of the article of which C complains says nothing about his character
and is incapable of lowering his estimation in the mind of a right-thinking person.
One of the meanings identified in the letter of claim was that C “unreasonably and
unrealistically persists in a career as a professional tennis player which is an
expensive waste of money and doomed to failure”.
Since this meaning is not
complained of in the POC and can only be derived from the words on page 20, it
cannot be taken into account. But it is worth observing in passing, that perseverance
in the face of adversity is a longstanding British characteristic which is to be admired
by a right-thinking person.
David Price
Solicitor-Advocate for the Defendant
23 February 2010
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