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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Poulter v Times Newspapers Ltd [2018] EWHC 3900 (QB) (14 December 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/3900.html Cite as: [2018] EWHC 3900 (QB) |
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QUEEN'S BENCH DIVISION
Royal Courts of Justice |
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B e f o r e :
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DANIEL POULTER MP | Claimant | |
- and - | ||
TIMES NEWSPAPERS LIMITED | Defendant |
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(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London EC4A 3BF
Tel: 020 7831 5627 Fax: 020 7831 7737
[email protected]
This transcript has been approved by the Judge
MR G. MILLAR QC (instructed by RPC) appeared on behalf of the Defendant.
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Crown Copyright ©
MR JUSTICE NICKLIN:
The parties' pleaded cases on meaning
"that there were reasonable grounds to suspect the Claimant of sexual assault by putting his hand up the skirts of at least three female Members of Parliament without their consent."
"The Claimant is guilty of sexual assault by putting his hand up the skirts of at least three female Members of Parliament without their consent; alternatively, that there were reasonable to so suspect the claimant."
"that there are grounds to investigate whether [the Claimant], whilst an MP, sexually harassed or assaulted women in Parliament".
a. She accepts that the starting point always is that the offending publication (so far as it refers to the Claimant) must be considered as a whole. The whole of the Bridgen Article is complained of and all of that part of the Wheeler Article that refers to the Claimant, as well as the headlines, photograph and captions. Clearly, in the case of the print edition, each article provides context for the other, as do the headlines, the photograph and the captions, which provide context for both articles. This is not a case, she submits, in which the Claimant has sought to isolate the passage in the overall coverage and complain of that alone, while other parts are not complained of, tending to throw a different light on that passage. In that respect, she compares the decisions of Charleston -v- News Group Newspapers Ltd [1995] 2 AC 65 HL and Dee -v- Telegraph Media Group Ltd [2010] EMLR 20.b. She submits there is no rule that the Court must, in every case, attempt to find one single meaning to straddle disparate parts of coverage where, as here, she submits, it is on the face of that coverage, even the print edition, that it falls into two distinct parts which have been separately authored and where the authors are speaking with two distinct voices, not one. As will be self-evident, she submits, to readers of either the print or the online versions, the two authors are performing different roles in relation to the newspaper. Mr Bridgen, who, independent of the newspaper, is the source of and also plays a part in the story, and Ms Wheeler, who is the journalist/reporter observing from the side lines, but also, she submits, giving momentum to what is described. It would also be evident to the reader, she argues, that each author's relationship to the story signifies to the readers different levels of knowledge. Ms Wheeler is acting as a "reporter", whereas Mr Bridgen claims to have been the first-hand recipient of the three MPs' complaints.
c. Further, Ms Page argues that if a 'one single meaning' rule did exist, it would add another layer of complexity and artificiality to the single meaning rule, compelling the Court either to attribute contributors by separate authors and joint tortfeasors published within the same edition of a newspaper a common denominator meaning that is lower than the natural, ordinary meaning of one author's contribution or higher than the other author's contribution. This risks a reversion to the "in mitiori sensu" rule of the early 17th century, which, as Tugendhat J observed in Lord McAlpine -v- Bercow [2013] EWHC 1342 QB 64, has not been a rule of law since then and is not one now.
d. Finally, she contends that such a rule would have the potential also to interfere arbitrarily in the prospect of success or failure of a s.4 defence (or defences) or, for that matter, a s.2 defence (or defences) and conflict with the rule on aggravated damages. It could be unjust to one party and an undeserved windfall to the other. In the current case, she submits, the Defendant's one single meaning contention could have the effect of lowering the meaning of one of the articles (creating unfairness to the Claimant) or raising the meaning of the other if, as the Claimant recognises, the Bridgen Article may be of a different order of gravity to the Wheeler Article. Each case, she submits, must be just judged on its own facts.
a. Relying on Dee -v- Telegraph Media Group [2010] EMLR 20, the key question in this context is whether the articles "were sufficiently closely connected as to be regarded as a single publication". Articles appearing in the same edition of a newspaper can be regarded as having a sufficient connection - depending upon the relevant facts - and this is so whether or not the articles are continuation pages or different items of published material relating to the same subject matter: see Sharp, at [27]–[31]. On the facts in Dee the judge concluded [32]:"It would… have been obvious to all readers of the front page article that, read alone, it did not constitute or purport to be the full story. In my view, in light of the clear and close connection between them, the two articles must be read together for the purpose of determining meaning and the contrary is not arguable."
b. He has also referred me to Budu -v- BBC [2010] EWHC 616 (QB), a case that concerned three articles on the BBC's website in its archive.
[12] The Internet provides a degree of challenge to [the] orthodoxy [of Charleston] because it is possible to set out in on-line publications many hyperlinks to external material. It is perhaps unrealistic to proceed on the basis that every reader will follow all the hyperlinks, but everything depends upon its context. For example, if in a single tweet there is a single statement that says, "X is a liar" and then a hyperlink is given, it is almost an irresistible inference to conclude that the ordinary reasonable reader would have to follow the hyperlink in order to make sense of what was being said. At the other end of the spectrum, a very long article could contain a very large number of hyperlinks. Only the most tenacious or diligent reader could be expected to follow every single one of those hyperlinks. Such a reader could hardly be described as the ordinary reasonable reader. How many links any individual reader would follow would depend on an individual's interest in or knowledge of the subject matter or perhaps other particular reasons for investigating each of the hyperlinks in question.
[13] It therefore does not seem to me to be possible to put forward a hard and fast rule that hyperlinks imbedded in an article that is complained of should be treated as having been read by the ordinary reasonable reader.
I referred to Warby J's judgment in Monroe -v- Hopkins [2017] 4 WLR 68 in its treatment of hyperlinks in Tweets, before concluding:
[15] Monroe -v- Hopkins gives very helpful guidance, but it does not extend the principle of Charleston -v- News Group into a rigid rule that requires the court, when determining meaning, to include in consideration material that is available to be read or watched by way of hyperlink. What, if I might summarise, I derive from Monroe -v- Hopkins is that everything is going to depend upon the context in which material is presented to the reader.
[16] I suppose, ultimately, if it is a matter of dispute, the court is going to have to take a view as to what hypothetical reasonable reader is likely to do when presented by an online publication and the extent to which s/he would follow hyperlinks presented to him/her.
Meaning: the Law
"15. There is a longstanding common law rule that it is no defence to an action for defamation for the defendant to prove that he or she was only repeating what someone else had said (known as the 'repetition rule'). Subsection (1) focuses on the imputation conveyed by the statement in order to incorporate this rule."
Meaning: the Parties' Submissions
a. Both the Wheeler and Bridgen Articles indicated that:
i. allegations had been made against the Claimant by three women MPs;
ii. an allegation made by the three women was that the Claimant had put his hand up their skirts;
iii. a complaint about the Claimant's behaviour had been made by a fellow Conservative MP, Mr Bridgen, under the party's new conduct procedure; and
iv. the Claimant was understood to deny the allegations.
b. The Wheeler Article reported that the complaint had been accepted for further investigation under the procedure.
c. The Bridgen Article made clear his view that the allegations should be properly investigated and stated that the new procedure was set up to investigate alleged breaches of the code of conduct.
d. Neither article contained the word "assault".
a. The Claimant wrongly seeks to elevate the Bridgen Article to a level one allegation of guilt of sexual assault. He submits this should be rejected; the Bridgen Article contains numerous qualifying words, including that the Claimant is understood to deny the allegations.b. The argument that the Articles carry a level 2 meaning is, he says, misconceived. The thrust of the Bridgen Article is that he believed, as a matter of principle, that the women's allegations should be property investigated as code of conduct breaches. The key fact added by the Wheeler Article is that Mr Bridgen's complaint had been referred to the new Disciplinary Committee for further investigation. Beyond this, the published material does not enter into the merits or otherwise of Mr Bridgen's complaint. It does not say that there is any particular threshold for an investigation under the code of conduct, still less that any particular threshold was met when the further investigation was decided upon by the Conservative Party. There is certainly nothing in the articles that goes a step further so as to suggest reasonable grounds to suspect the Claimant acted in the way alleged by Mr Bridgen's complaint.
Meaning: Decision
a. The articles are unbalanced and one-sided. Apart from the statement in paragraph 11 of the Wheeler Article, and right at the end of the Bridgen Article the statement that the Claimant was "understood" to deny the allegations, there is no other antidote to what is presented to the reader.b. Despite being peppered with the word "alleged", sometimes (e.g. in paragraph 3 of the Bridgen Article) it is done in a way that makes no sense. These devices do not affect the overall message. This is a good example that it is not enough for a night lawyer simply to inserted "alleged" in front of the stated wrongdoing to avoid the suggestion of guilt. That is because it is the overall effect of the article that counts.
c. The overall meaning of a publication is affected by the substance of what is being said, not just the form or the formulaic incantation of words like "alleged". As I observed in argument, that device has become so notorious that it has been a running joke on "Have I Got News For You?" for nearly three decades. "Mr X has been having an affair, allegedly." Unbeknownst to the audience, the humour is being supplied by their immediate appreciation of the practical effect of the repetition rule.
d. The Bridgen Article is a condemnation of the Claimant. He presents (and is presented) as someone who is putting his own career in jeopardy by stepping forward to speak out. There is no doubt what he is doing. He is "calling out" the Claimant's behaviour. Why? Because he wants to encourage other victims of sexual assault to come forward.
e. There is absolutely no doubt about that from the text of his article. The Bridgen Article is directly alleging guilt. His article is entirely premised upon the fact that the Claimant is guilty. It would make no sense otherwise. There could be no "conspiracy of silence" by failing to speak out if it was yet to be determined that the Claimant had behaved as alleged by the three MPs. If other victims of sexual harassment were to be encouraged to come forward by the three MPs themselves coming forward, that presupposed that the three of them had been sexually harassed by the Claimant, or sexually assaulted by the Claimant.
f. A particularly powerful factor in the notional ordinary, reasonable reader's assessment is the source of the allegation. The ultimate source of this allegation has two aspects to it. First, the accusers are MPs. The articles give no reason to doubt the credibility of what they say the Claimant has done to them, as recorded by Mr Bridgen. There is no suggestion of a political motivation, revenge or any other reason to indicate to the reader that he or she should be wary of accepting what is said by the MPs. The second is the fact that there are, indeed, three complaints. Absent collusion, which is not suggested, the fact that the three MPs have made the same complaint would be recognised as a powerful factor corroborating each other's account.
g. The Wheeler article does not mitigate the effect of the Bridgen Article. Bridgen is, colloquially, in this article, 'the horse's mouth', relaying what he has been told by the three direct victims, and the Wheeler Article is a report of that in a wider context of the "Westminster Scandal", not, it is to be noted, the "alleged Scandal". The Claimant is of interest because he is "believed to be one of the first MPs to be reported under a new code of conduct". Paragraph 7 in the Wheeler Article repeats the allegations made to Mr Bridgen from three MPs and, importantly, previous complaints to the whips fell on "deaf ears", leading to a row as to whether the whips had been complicit in a cover up. The words "cover up" presuppose that there has been wrongdoing to hide.
"the claimant was guilty of sexual assault by putting his hand up the skirts of three female Members of Parliament".
"the Claimant was guilty of sexual assault by putting his hand up the skirts of three female Members of Parliament".
"there were reasonable grounds to suspect that the Claimant was guilty of sexual assault by putting his up the skirts of three female Members of Parliament".
Appendix
Section 1: Print version of the Wheeler Article
[1] The Conservative MP Daniel Poulter has been reported to his party's new disciplinary committee after allegations about his behaviour towards at least three female MPs.
[2] Last night, a Downing Street spokesman said: "Following a conversation with him, the chief whip has referred Daniel Poulter to the party's new disciplinary committee for further investigation."
[3] It comes after The Sunday Times reveals today that Poulter had been the subject of a formal complaint by his fellow Conservative MP Andrew Bridgen.
[4] Poulter, 39, a former health minister, has been accused of breaching the new code of conduct published last week in wake of a growing number of sexual harassment allegations.
[5] He is believed to be one of the first MPs to be reported under the new procedure.
[6] Writing for The Sunday Times (see panel, right), Bridgen claims that he first complained to the whips' office about Poulter's alleged behaviour seven years ago.
[7] The complaint came after three female MPs had told him they were reluctant to get in a lift with Poulter after he allegedly put his hand up their skirts.
[8] Bridgen claims the allegation fell on deaf ears — a suggestion that is likely to reignite the row over whether whips have been complicit in a cover-up.
[9] "My complaint was not acted upon by the whips and was met with no interest," Bridgen writes.
[10] "Two years later Poulter was promoted to junior health minister – a position he left after the 2015 election so he could return to the medical profession part-time."
[11] The Sunday Times has put the allegations to Poulter, but he has chosen not to comment on the record. It is understood he denies the allegations.
Section 2: Print version of Bridgen Article
[1] When you become an MP you don't stop being a member of the human race. We have all the failings and frailties of those we represent.
[2] It is my belief that many of the claims made on the now notorious "spreadsheet of shame" are nothing more than examples of those frailties — but there are some claims that are much darker and warrant further investigation. As MPs, we must all be equal with our electorate under the law.
[3] It is for this reason, among others, that I have decided to call out the alleged inappropriate behaviour of my fellow Conservative MP Daniel Poulter.
[4] I made a word-of-mouth complaint about him to the whips' office in 2010, after complaints from three female MPs. They said they were reluctant to go into the lift with him after he reportedly put his hand up their skirts. I felt that was more appropriate than confronting Poulter about the allegations.
[5] My complaint was not acted upon by the whips and was met with no interest. Two years later, Poulter was promoted to junior health minister – a position he left after the 2015 election so he could return to the medical profession part-time.
[6] While I appreciate that speaking out about an MP in my own party will not make me particularly popular and could damage my own career prospects, I have chosen to do so in the hope that it will encourage others, especially those who have been victims of sexual harassment, to come forward. It is very important that they do speak out. Only by bringing these allegations into the public domain and having them properly investigated will those responsible for wrongdoing be stopped, so they cannot cause harm to others or bring parliament into further disrepute.
[7] Those of us who are told things must speak out, or else we become complicit in a conspiracy of silence. I have now submitted my complaint about Poulter's alleged behaviour to the party's new regulatory body, set up to investigate alleged breaches of the code of conduct."
[8] The Sunday Times has put these allegations to Daniel Poulter, but he has chosen not to comment on the record. It is understood that he denies all the allegations.
Section 3: Online version of the Wheeler Article
[1] The Conservative MP Daniel Poulter has been reported to his party's new disciplinary committee after allegations about his behaviour towards at least three female MPs.
[2] A Downing Street spokesman said: "Following a conversation with him, the chief whip has referred Daniel Poulter to the party's new disciplinary committee for further investigation."
[3] The move came in response to today's revelation in The Sunday Times that Poulter had been the subject of a formal complaint by his fellow Conservative MP Andrew Bridgen.
[4] Poulter, 39, a former health minister, has been accused of breaching the new code of conduct published last week. He is believed to be one of the first MPs to be reported under the new procedure.
[5] Writing for The Sunday Times, Bridgen claims that he first complained to the whips' office about Poulter's alleged behaviour seven years ago. The complaint came after three female MPs had told him they were reluctant to get in a lift with Poulter after he allegedly put his hand up their skirts.
[6] Bridgen claims the allegation fell on deaf ears — a suggestion that is likely to reignite the row over whether whips have been complicit in a cover-up. "My complaint was not acted upon by the whips and was met with no interest," Bridgen writes. "Two years later Poulter was promoted to junior health minister." He resigned after the 2015 election to return to part-time practice as a doctor.
[7] The Sunday Times put the allegations to Poulter, but he chose not to comment on the record. It is understood he denies the allegations.
Section 4: Online version of the Bridgen Article
[1] When you become an MP you don't stop being a member of the human race. We have all the failings and frailties of those we represent.
[2] It is my belief that many of the claims made on the now notorious "spreadsheet of shame" are nothing more than examples of those frailties — but there are some claims that are much darker and warrant further investigation. As MPs, we must all be equal with our electorate under the law.
[3] It is for this reason, among others, that I have decided to call out the alleged inappropriate behaviour of my fellow Conservative MP Daniel Poulter.
[4] I made a word-of-mouth complaint about him to the whips' office in 2010, after complaints from three female MPs. They said they were reluctant to go into the lift with him after he reportedly put his hand up their skirts. I felt that was more appropriate than confronting Poulter about the allegations.
[5] My complaint was not acted upon by the whips and was met with no interest. Two years later Poulter was promoted to junior health minister — a position he left after the 2015 election so he could return to the medical profession part-time.
[6] While I appreciate that speaking out about an MP in my own party will not make me particularly popular and could damage my own career prospects, I have chosen to do so in the hope that it will encourage others, especially those who have been victims of sexual harassment, to come forward. It is very important that they do speak out. Only by bringing these allegations into the public domain and having them properly investigated will those responsible for wrongdoing be stopped, so they cannot cause harm to others or bring parliament into further disrepute.
[7] Those of us who are told things must speak out, or else we become complicit in a conspiracy of silence. I have now submitted my complaint about Poulter's alleged behaviour to the party's new regulatory body, set up to investigate alleged breaches of the code of conduct.
[8] The Sunday Times has put these allegations to Daniel Poulter, but he has chosen not to comment on the record. It is understood that he denies all the allegations.
[9] Andrew Bridgen is MP for North West Leicestershire
CERTIFICATE Opus 2 International Ltd. hereby certifies that the above is an accurate and complete record of the proceedings or part thereof. Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 [email protected] This transcript has been approved by the Judge |