IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
B E T W E E N:
Claim No. HQ09X02550
SARAH THORNTON
Claimant
- and –
TELEGRAPH MEDIA GROUP LIMITED
Defendant
_______________________
DEFENDANT’S SKELETON ARGUMENT
FOR HEARING ON 26 MAY 2010
_______________________
Reading list: The application notice (tab 1), the article (tab 2), the statements of case
(tabs 4-6), the proceedings at the permission to appeal hearing (tabs 22-23) and the
skeleton arguments.
Estimated length of reading time: 1 ½ hours
Estimated length of hearing: 2 hours
Introduction
1. This is D’s application to strike out one of the two allegations complained of by C on
the basis that it is not defamatory. D no longer pursues the alternative application,
for a preliminary determination of whether it is, in fact, defamatory. While many have
recognised the desirability of a preliminary determination of meaning related issues
in defamation claims1, it remains the law that either party can elect for a jury trial. C
has re-iterated her desire for a jury trial and it is probably undesirable to have two
separate jury trials. In any event, for the reasons stated below, there is no need for
any jury determination on this issue because the words are not capable of being
defamatory.
2. There is also an outstanding issue relating to the assessment of costs from a
previous hearing before Tugendhat J on 22 January (the order is at tab 20).
1
See for example the Culture, Media and Sport Committee Report HC 362 at [125-9] and Lord
Justice Jackson’s Review of Civil Litigation Costs, Chapter 32 [5.2].
1
The claim
3. C is the author of Seven Days in the Art World. It is described as a series of “fly-onthe-wall narratives” relating to various aspects of the contemporary art market, based
on a practice described as “reflexive ethnography”. The claim arises from a review
of the Book by the well-known journalist, Lynn Barber. This was published on 1
November 2008 on page 28 of Telegraph Review, one of the several
sections/magazines distributed with the Saturday issue of The Daily Telegraph. The
review was negative and satirical in tone.
4. The claim only relates to the first two paragraphs of the review.
These were in the
following terms:“Is it small enough to fit in a lift?
Confronted with reflexive ethnographic research on the art market, Lynn
Barber isn’t buying
Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in
sociology and a seemingly limitless capacity to write pompous nonsense. She
describes her book as a piece of “ethnographic research”, which she defines as “a
genre of writing with roots in anthropology that aims to generate holistic descriptions
of social and cultural worlds”. She also claims that she practices “reflexive
ethnography”, which means that her interviewees have the right to read what she
says about them and alter it. In journalism we call this “copy approval” and
disapprove.
Thornton claims her book is based on hour-long interviews with more than 250
people. I would have taken this on trust, except that my eye flicked down the list of
her 250 interviewees and practically fell out of its socket when it hit the name Lynn
Barber. I gave her an interview? Surely I would have noticed? I remember that she
asked to talk to me, but I said I had already published an account of my experiences
as a Turner Prize juror which she was welcome to quote, but I didn’t want to add to.
And although she lists all four Turner jurors from my year (2006) among her
interviewees, it is obvious from the text that only one gave her any inside information,
and a very partial account at that. He seems to have forgotten one particularly
sensitive encounter he had with Sir Nick Serota at a judging meeting.”
5. C complained of two distinct allegations. Firstly, that the review suggested that she
had dishonestly claimed to have interviewed Ms Barber (“the interview allegation”).
Secondly, that Ms Barber falsely compared reflexive ethnography to copy approval
(“the copy approval allegation”). In particular, C takes issue with the words “which
means that her interviewees have the right to read what she says about them and
alter it”.
C admits that she gives interviewees the opportunity to comment, but
denies granting any right to alter.
2
6. In response, D made a qualified offer of amends in relation to the interview
allegation. This was rejected on the basis that it was “not a valid offer” because it did
not state the defamatory meaning and did not extend to the “second aspect” of the
complaint. It was asserted that Gray J was wrong in Warren v The Random House
Group Ltd [2007] EWHC 2856 (QB) to hold that a qualified offer of amends could be
made in relation to a particular defamatory statement that forms part of a wider
publication. Subsequently, when faced with the possibility of a summary judgment
application on this issue, C conceded that a valid offer had been made. C thereby
assumed the burden of proving malice against Ms Barber, in preference to walking
though an “open door” to full redress.
7. In relation to the copy approval allegation, D contended that it was not defamatory or
alternatively that it was fair comment. Nevertheless, D offered C the opportunity
within the apology in relation to the interview allegation, to state in her own words
that she did not grant copy approval to interviewees2.
8. D also proposed neutral evaluation or judge only determination on whether the copy
approval allegation was defamatory and if defamatory, whether it was fact or
comment3. This had obvious potential costs savings. A finding that the allegation
was not defamatory or was fact would avoid the costs of litigating fair comment.
9. Paragraph 6 of the POC (tab 5 / 11) advanced the following meanings:“6 In their natural and ordinary and/or inferential meaning and in the context in
which they appeared the said words meant and were understood to mean that:
2
3
6.1
the Claimant had dishonestly claimed to have carried out an hour-long
interview with Lynn Barber as part of her research for Seven Days in the
Art World, when the true position was that she had not interviewed Ms
Barber at all, and had in fact been refused an interview.
6.2
the Claimant had given her interviewees the right to read what she
proposed to say about them and to alter it, a highly reprehensible practice
which, in the world of journalism, was known as “copy approval”.
6.3
the Claimant had thereby shown herself to be untrustworthy and fatally
lacking in integrity and credibility as a researcher and writer.”
The published apologies are at tabs 24 and 25.
The relevant correspondence is at tab 26 / 155, 163, 177, 209 & 211.
3
10. The words “highly reprehensible” in [6.2] are parasitic on the allegation of copy
approval. The words “untrustworthy” and “fatally lacking in integrity and credibility” in
[6.3] are parasitic on both the interview and copy approval allegations. They are not
“meanings” in the true sense and were not identified as such in the pre-action
correspondence. They are the pleader’s attempt to extract something discreditable
from the copy approval allegation. In response to a Part 18 Request, C’s solicitors
have stated in correspondence4:
“Our client’s position is that all of the meaning set out in paragraph 6.3 is informed
and contributed to by the meaning set out in paragraph 6.2. Obviously the way in
which the paragraph 6.2 allegation renders the Claimant untrustworthy, lacking in
integrity and credibility etc, is slightly different from the way in which the paragraph
6.1 allegation does so, but nevertheless both limbs contribute to the overall
imputation pleaded at paragraph 6.3.”
11. The POC also included a malicious falsehood claim in relation to the copy approval
allegation. The reason for its inclusion is the risk that C will be unable to establish
that it is defamatory.5
12. Defence [3.2] (tab 6 / 20) denied that the comparison with copy approval was
defamatory and set out the basis for such a denial.
“3.2.
It is denied that the words relating to reflexive ethnography are
defamatory of the Claimant. The reader is told that the Claimant has academic
qualifications in art history and sociology and has described the Book as a “piece of
ethnographic research” which is defined as “a genre of writing with roots in
anthropology that aims to generate holistic descriptions of social and cultural worlds”.
The granting of copy approval to interviewees for the purpose of such a book does
not involve any moral blame, nor would it lead a right-thinking member of society to
think the worse of the Claimant. It would simply be regarded by such a person as a
practice that the Claimant has chosen to employ pursuant to her stated “holistic”
approach, but which in a journalistic context would, in the opinion of Ms Barber, be
subject to disapproval. The words do not attribute to the Claimant the lack of any
necessary attribute to carry out ethnographic research and/or publish a book based
on it. There is no suggestion that the Claimant seeks to conceal her modus operandi
from her readers.”
[5.3] denied that the copy approval allegation involved any lack of trust, integrity or
credibility.
4
5
Taylor Hampton letter of 21 April 2010 tab 26 / 272.
Taylor Hampton letter of 30 April 2009 tab 26 / 114.
4
“5.3.
The meaning set out in sub-paragraph (3) is sought to be derived from
the meanings in sub-paragraphs (1) and (2). It was not identified as an independent
meaning in any pre-action correspondence. The Defendant will contend that, in the
event that the fair comment and offer of amends defences succeed, the Claimant
should not be entitled to a finding in her favour and/or damages in relation to the
meaning in sub-paragraph (3). Further, it is denied that the words relating to reflexive
ethnography suggest that the Claimant is lacking in trust, integrity or credibility. It is
denied that anything in the article suggests that the Claimant is “fatally” lacking in
any attribute.”
Alternatively, in [7.1] D sought to defend the following meaning as comment:“The Claimant’s practice of reflexive ethnography is comparable to copy approval in
journalism which is disapproved of by journalists”.
13. On 2 October C issued an application to strike out the fair comment defence on two
principal grounds. Firstly, that the copy approval allegation was not capable of being
comment. Second, it if was comment, “the fact on which the comment purported to
be founded was not truly stated” as C “did not give her interviewees the right to read
what she proposed to say about them and alter it, nor does the Defendant advance
any case to the contrary in the Defence”.
On 12 November Sir Charles Gray
rejected the first ground, but accepted the second and struck out the defence (tab
17).
14. On 22 January Tugendhat J struck out the majority of POC [11.7] on the basis in
relation to the interview allegation that it did not disclose a proper case in malice
against Ms Barber (tab 20). He ordered that C pay the costs of the application. The
costs have not been assessed.
15. On 29 March D’s application for permission to appeal the striking out of the fair
comment defence came before Sedley LJ (tabs 21 - 23).
His Lordship observed
that the “case started in a mess and is getting into a bigger mess”.6 He noted that
the fair comment defence was based on the assumption that the words were
defamatory. He questioned how it could possibly be argued that they were and why
no application had been made to a judge for a determination on capability.7 He
adjourned the application for permission to appeal in order for D to make this
application.
6
7
Tab 22 / 85 at A
See the judgment at [2], tab 23 / 90
5
Relevant legal principles
16. There is under English law no general cause of action for the publication of false
statements in the media or elsewhere. In cases involving the printed media, the
Press Complaints Commission’s Code of Conduct may provide some remedy8.
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.
17. Applications under PD53 4.1 are most commonly made in relation to determinations of
meaning under sub-paragraph (1). Such a determination does not involve any value
judgment; it is simply a construction of the relevant words as against the pleaded
meanings. In contrast, where a judge is determining whether the words are capable of
being defamatory under sub-paragraph (2), his decision implicitly says something
about the attributes and values of right-thinking members of society generally.9 The
right-thinking member of society may be a fiction; but it is a necessary one in order to
hold the balance between the protection of reputation and freedom of expression. He
must not be unduly sensitive or represent a section of society. In the modern era, the
appropriate threshold must be interpreted consistently with the “necessity”
requirement in Article 10. Otherwise, the balance will be unduly weighted against
freedom of expression.
18. British society in 2010 is perhaps less uniform than it has ever been. While the jury
remains the tribunal for determining whether the words are defamatory, it is all the
more important that the judge carries out his duty to form a judgment on acceptable
standards and values and to rule accordingly in an appropriate case.
Excessive
latitude to a claimant results in a defendant being “wrongly burdened with defending
8
D put forward the PCC as a form of neutral evaluation (tab 26 / 177)
See the emphasis given to the need for a sufficient consensus by Sharp J in her review of the
authorities in Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB) at [17]
9
6
libel proceedings” which “can be a very onerous burden and one which interferes with
the right of freedom of expression”.10
19. It is well-established that conduct which is worthy of praise e.g. reporting crime to the
police, should not be stigmatised as capable of being defamatory. A similar principle
applies to conduct that is lawful but may be a breach of etiquette or regarded as
disgraceful or obnoxious within a particular section of society. A judicial finding that
right-thinking members of society generally could think the worse of a person who
engaged in such conduct involves an element of stigmatisation of the conduct. Setting
the bar too low has the effect of devaluing the tort. As Lord Atkin famously observed in
Sim v Stretch 52 T.L.R. 669 HL at p.672: “That juries should be free to award damages
for injuries to reputation is one of the safeguards of liberty. But the protection is
undermined when exhibitions of bad manners or discourtesy are placed on the same
level as actionable wrongs”.
20. This principle is evident in a number of authorities, which draw a distinction between
conduct which may be objectionable to a sector of society and conduct which right
thinking members of society generally would regard to be blameworthy.
a. In Clay v Roberts (1863), 8 LT 397 it was held that an allegation that a
physician had met homeopaths in consultation (conduct which according to
the declaration was considered by medical opinion at the time to be improper
or disgraceful) was not defamatory. It may be illustrative to consider the letter
complained of:
“To the Editor of the Lancet. Sir, - It is reported in Hanley that Dr. Clay of Manchester
has lately been meeting a professed homoeopathist in consultation in this town. Will
you allow me to ask Dr. Clay through the medium of your journal if he can give any
satisfactory answer to this report. I am led to believe, on what I consider the most
undeniable authority, that Dr. Clay has done so, knowing the person to be a
homoeopathist. If this report is incorrect, it cannot be refuted too soon; if it is correct, I
think Dr Clay’s colleagues cannot too soon be made acquainted with it, as I believe
there is a Medico-Ethical Society in Manchester, to which no doubt they would like to
refer the case. I am, Sir, your obedient server, - Inquirer.”
In passages cited with approval by Lord Atkin in Sim, Pollock CB questioned:
“Would it be libellous to write of a lady of fashion that she had been seen on
the top of an omnibus; or of a nobleman, that he was in the habit of burning
10
See the observations of Sharp J in Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB)
at [64].
7
tallow-candles?” Having posed the question, he concluded that: “There is a
distinction between imputing what is merely a breach of conventional
etiquette and what is illegal, mischievous, or sinful”.
b. In Mycroft v Sleight (1921) 90 L.J.K.B. the plaintiff was a trawler skipper and
union member who voted in favour of a strike but was then accused of asking
one of the ship owners for a ship to take to sea. McCardie J held that, in
principle, right-thinking members of society generally would not think the
worse of asking an owner for a ship in a strike, but in context, it amounted to
a charge of disloyalty or hypocrisy, which “all men, whatever their political or
economic opinions, would deprecate”11. There have been a number of
subsequent cases in which conduct which would ordinarily not be regarded
as culpable generally, becomes so in relation to the claimant, because it
conflicts with his previous conduct or action and therefore amounts to a
charge of hypocrisy12.
c. In Angel v H.H. Bushell & Co Ltd [1968] 1 QB 813 the allegation was that the
plaintiff was “not conversant with business ethics”. Milmo J recognised at
825G – 826A that there is a “very real difference between an allegation of
failure to comply with etiquette and a failure to conform with ethical
standards, and it is the latter imputation which, in my view, is made by this
letter. Ethics involve a moral standard, and, in my judgment, a breach of
ethics connotes at a minimum dishonourable behaviour”.
d. More recently, in Ecclestone v Telegraph Media Group Ltd [2009] EWHC
2779 (QB) Sharp J held that a statement attributed to a young fashion
designer that: “I don’t have much time for people like the McCartneys and
Annie Lennox” was not capable of being defamatory even on the assumption
that “in the world of fashion, any public statement about a well-known
designer such as Stella McCartney and her celebrity father which is not
sycophantic might be regarded as a “faux pas””.13 Sharp J recognised that a
false attribution might be defamatory on other grounds.
11
At 887.
See Gatley at [2.11].
13 See [19 – 20] where Sharp J accepts the defendant’s submissions at [13].
12
8
“21.
Circumstances could be envisaged where a person might be
exposed to ridicule because of what they are reported to have said; or where
a complaint may arise because someone’s reported views did not coincide
with what they had said or done earlier (giving rise to an innuendo of
hypocrisy). But this case does not fall into either such category.
22. There may also be circumstances where the views attributed to a person
were such that a claim for defamation might be viable (if a person was said to
have expressed support for the conduct of a notorious child abuser, and child
killer, to take an extreme example cited in argument). Equally, a claim for
defamation might arise where a claimant is alleged to have expressed views
about people with whom he or she disagreed in such violent, excessive or
abusive language that ordinary reasonable members of society might think
the less of him or her for having done so. There may even be cases where a
perceived lack of respect for a particular person in certain circumstances
might be actionable in defamation. It seems to me however, that if the opinion
expressed is an acceptable one there must be significant latitude given as to
the manner in which it is expressed before right-thinking members of society
would think the less of the person for expressing either their views, or their
opinion of someone with whom they disagree.”
21. D accepts that a professional person may be defamed by an allegation that does not
impute moral blame.
However, a line must be drawn and maintained between
defamation and malicious falsehood. The editors of Gatley at [2.26] suggest, 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). This involves a consideration of the nature of the
allegation and the nature of the profession.14
22. In this regard, the relevant issue is the nature of the allegation, not the defendant’s
opinion of it. In Botham v Khan The Times 15 July 1996 CA, the allegation was that
Mr Botham picked the seam of a cricket ball, which was a breach of the laws of
cricket. Mr Khan said that he did not regard this to be cheating and that it was a
practice adopted by all the leading bowlers. Russell LJ held that “the important point
in this appeal is what Mr Botham is said to have done, not what Mr Khan thinks is the
true quality of the act”. This principle must work equally the other way round. If a
defendant accuses the claimant of a practice that would not make right-thinking
9
members of society generally think the worse of him, it does not become defamatory
simply because the defendant does not approve of it.
23. A number of the cases on professional reputation relate to criticisms of a claimant’s
technique. In Drummond–Jackson v BMA [1970] 1 WLR 668 CA, the Court of Appeal
(Lord Denning M.R. dissenting) held that a “severe attack” on a dentist’s technique
was capable of being defamatory of the dentist. It is debateable whether the same
decision would have been reached by today’s Court of Appeal. But even taking the
decision at face value, there are some obvious distinguishing features. Firstly, the
“special technique” in question was developed by the plaintiff and he had an
international reputation for using it, recommending it and advocating its safety.15
Secondly, the publication complained of stated that the technique had “serious
detrimental physiological effects, which may well have been the cause of the reported
deaths”.
Although no meaning was pleaded, it is clear that the sting was the
connection between the plaintiff’s practice and advocacy of his technique and the selfevidently deleterious consequences of physiological damage and death.
24. In the recent decision of Dee v Telegraph Media Group Ltd [2010] EWHC 924 (QB)
at [39-48] Sharp J analysed the earlier decisions relied on by Lord Pearson in
Drummond-Jackson. At [48] she observed:
“[48] Incompetence or ‘want of skill’ by those who hire out their professional or
personal skills for a living often involves as I have said, consequences for those who
hire them and/or pay for their services - and who get less than they might be entitled
to expect. In addition, the tendency of such words might be to suggest a claimant’s
fitness or competence falls below the standard generally required for his business or
profession ....”
As Sharp J rightly observed, the common theme in the professional technique cases
is a failure to provide the particular service for which the claimant was remunerated,
with a variety of adverse consequences.
25. Finally, as regards procedure, it is accepted that a determination under CPR PD53
4.1(2) can and (generally) should be made before service of the defence. However,
it remains the judge’s duty to withdraw a meaning that is not capable of being
defamatory, whenever the application is made. There is nothing in the CPR that
14
15
See for example the approach of Sharp J in Dee at [49].
See 697D-F.
10
requires a defendant to allege in the defence that the words are not capable of being
defamatory.16 A simple denial that they are not is sufficient and cannot be
understood to amount to an admission that they are capable of being defamatory.
Some pleaders put in issue “capability” as a matter of course.
There is no
requirement to do so.
Application of the principles to the present case
26. The starting point is that the headline refers to “reflexive ethnographic research” and
the reader is told at the commencement of the review that C has academic
qualifications in art history and sociology and describes her book as a “piece of
ethnographic research” which she defines as “a genre of writing with roots in
anthropology that aims to generate holistic descriptions of social and cultural worlds”.
It is obvious to the reader that the book does not purport to be a piece of journalism.
It is equally obvious that C does not seek to conceal her technique.
27. There is nothing inherently immoral in pursuing “ethnographic research” as a
methodology in order to obtain a “holistic description” of “a social and cultural word”
or of granting copy approval pursuant to such a process. To use C’s own words, it is
a “collaborative process”. The apparent purpose of the grant of copy approval is to
ensure that the final work most accurately reproduces the interviewees “world” from
his or her perspective. Such a process is not illegal or contrary to any professional
code. It is certainly not something that would make right-thinking people generally
think the worse of C. It should not be stigmatised by a finding that it is capable of
being defamatory.
28. There may or may not be valid reasons why some journalists disapprove of copy
approval, which may or may not be regarded sympathetically by right-thinking
members of society generally. It is certainly a widespread practice in journalism,
predominantly as a means of getting access to interviewees. There is no reason why
such an allegation should be defamatory even in a journalistic context. But the issue
is not whether copy approval is good or bad. It is whether right-thinking people
generally would think the worse of person in C’s position for employing such a
practice in the context of ethnographic research, which clearly involves a far closer
16
See CPR 16.5.
11
relationship between the interviewer and interviewee, than some journalist
interviewers such as Ms Barber choose to adopt. As Sedley LJ observed at the
permission hearing: “to say that somebody lets their interviewees see what they said
about them and alter it seems to me to carry no moral connotation either way”.17
And drawing an analogy with Ecclestone, “there must be significant latitude given as
to the manner in which” an author chooses to carry out and present her research
“before right-thinking members of society would think the less of the person” even if
they may have a preference for a different technique.
29. Drummond-Jackson v BMA and the cases relating to professional competence are
not on point. Firstly, the question of competence must be related to the nature of the
professional activity. In the present case, it is the publication of a book based on
ethnographic research.
The copy approval allegation does not attribute to the
Claimant the lack of any necessary attribute to carry out ethnographic research
and/or publish a book based on it. Secondly, C is not providing (or failing to provide)
a service to a client for which she is remunerated. She has written a book based on
a particular technique about which she is open. Purchasers have the freedom to
choose whether to buy the book. Thirdly, the pleaded meaning is not directed to any
lack of competence or judgment.
30. The Mycroft v Sleight cases are also not on point.
There would be nothing
hypocritical in C granting copy approval to interviewees.
There is no pleaded
meaning to this effect.
31. D accepts that the review satirises the “pompous” way in which C describes her
modus operandi.
However, the complaint is not directed to an allegation of
pomposity or pretentiousness, which would obviously have been met by a comment
defence.
32. The reality is that the entire claim in defamation rests on Ms Barber’s
unparticularised statement that journalists disapprove of copy approval.
But as
Russell LJ observed in Botham v Khan, it is the nature of the act that is relevant, not
the defendant’s opinion of it. And as Sedley LJ put it in the permission hearing:
17
See tab 23/ 90 at [2].
12
“Well, of course journalists disapprove. They would, would they not? They want
editorial control. It is nothing to do with what right-thinking people think about it”.18
33. The difficulties that face C are reflected in the pleaded meanings. The meaning in
POC [6.2] is that: “The Claimant had given her interviewees the right to read what
she proposed to say about them and to alter it, a highly reprehensible practice which,
in the world of journalism, was known as “copy approval””. If the words, “a highly
reprehensible practice”, were removed, the meaning would be anodyne. There is
nothing morally reprehensible in granting copy approval and no basis for the
inclusion of the words other than Ms Barber’s unparticularised statement of
disapproval. For the reasons previously stated, Ms Barber’s disapproval falls within
the same category as the strong tone of disapproval in the letter to The Lancet in
Clay v Roberts. In fact, Dr Clay’s case was stronger because he was practicing as a
doctor. C was not producing a piece of journalism, so Ms Barber’s disapproval from a
journalistic standpoint is even less material to whether the allegation is defamatory of
C.
34. The same points can be made in relation to “untrustworthy” and “fatally lacking in
integrity and credibility” in POC [6.3], which is sought to be linked to [6.1] and [6.2].
D has accepted that the interview allegation pleaded in [6.1] reflects adversely on C’s
integrity. However, the two allegations are distinct. The interview allegation is a
complaint by Ms Barber that she was not interviewed; it has nothing to do with how C
treats the product of her interviews. Moreover, Ms Barber’s disapproval of copy
approval was generalised and not specifically directed at C’s use of it. This mirrors
how it is pleaded in [6.2].
35. Finally, two ancillary matters should be addressed in anticipation that they may be
raised by C:a. POC [11.3] refers to an interview that C gave to a Dutch journalist in which he
asked why C gave copy approval. Leaving aside whether this is evidence of
damage attributable to D19, the issue is not whether the allegation caused
damage, but whether it would make right-thinking people generally think the
worse of C.
18
See tab 22/ 85 at D.
13
b. The reason why D did not bring the application earlier is irrelevant. Defence
[3.2] set out a reasoned denial of defamation. D is not stopped from making
this application. The court must judge it on its merits, as if it had been brought
before service of the Defence. Insofar as any explanation is required from D,
it is as was stated to Sedley LJ.20
David Price
Solicitor-Advocate for the Defendant
25 May 2010
As pleaded it is just an enquiry and Ms Barber’s review was not the only one which commented
on this aspect of D’s technique.
20 Tab 22/ 86.
19
14