Nicholas Hugh Brown -v- (1) Tom Bower (2) Faber & Faber Limited
Reference:  EWHC 1388 (QB)
Court: High Court
Date of judgment: 19/06/2017
The facts of the case
The Claimant is the Labour Party politician Nicholas Brown, who has been the Member of Parliament for Newcastle Upon Tyne East since 1983. He has brought libel proceedings against investigative journalist Tom Bower and his publisher Faber & Faber in respect of Mr Bower’s new book Broken Vows – Tony Blair: The Tragedy of Power. The passage of the book complained of is:
“In the ensuing discussion about gays in politics, journalist Matthew Parris declared on BBC TV that Mandelson was gay. Days later, Nick Brown, the new minister of agriculture, was accused by the News of the World of paying £100 to rent boys in order to be kicked around a room, and admitted his sexuality.”
Background to the proceedings
Before a defence was filed the Defendants applied for orders and directions for the trial of the following preliminary issues: (1) meaning (2) defamatory tendency (3) serious harm (4) Jameel abuse. The Defendants said at the time the application was filed that it was irrelevant whether they intended to rely on a defence to the claim, as the burden was on the Claimant to satisfy the serious harm test. The Claimant did not oppose the preliminary hearing on meaning or defamatory tendency, but he did oppose a trial on serious harm and Jameel abuse. The Claimant contended that the Defendants’ refusal to confirm whether they intended to rely on a substantive defence meant that the Court could not make an informed decision as to whether serious harm should be tried as a preliminary issue. It would be disproportionate to have a split trial on liability and quantum, if the Defendants did not intend to submit a defence. The Defendants confirmed the day before the hearing that they may put forward a defence of justification, but that they reserved the right to elect their defence until after serious harm had been determined.
Earlier in the proceedings, the Defendants had set out their case on serious harm after a request from the Claimant. The Defendants denied that serious harm had been caused as:
A person in the Claimant’s position must be expected to show a high level of tolerance of defamation (the “Public Figure Point”).
The claim relates to an allegation dating back 20 years, it was published in the News of the World and elsewhere, repeated later, regularly, in various media. The Claimant did not take action, but his career prospered nonetheless. Warby J labelled this point the “Reverse Dingle Point” as it relied on other publicity to show that serious harm had not been caused. The rule in Dingle v Associated Newspapers Ltd  AC 371 being that a defendant cannot invite an inference that other publications have injured the claimant’s reputation.
It would be an unjustifiable interference with the Defendants’ Article 10 rights to make them liable for the alleged effect of future publication, but not the other publishers who published the same or similar allegations in articles and books, and against whom the Claimant took no action (the “Archive Point”).
Meaning and defamatory tendency
Warby J considering the application said that preliminary issue trials of meaning and defamatory tendency usually take hours, not days. Meaning and defamatory tendency can be decisive. Meaning is an issue of fact, and the only evidence admissible is usually the statement complained of. Whether a meaning has a defamatory tendency is an issue of law, and the applicable principles are uncontroversial.
In Warby J’s opinion it was just and convenient to direct a preliminary trial of meaning and defamatory tendency. The parties had agreed that such an approach would be appropriate and it was realistic to suppose it may resolve the case.
Serious harm and Jameel
Warby J confirmed that there is no principle that serious harm must be tried as a preliminary issue, nor does a defendant have a right to challenge serious harm as a threshold issue. The question of whether such a trial is appropriate will always be a matter for judicial determination in the individual case. In Ames v The Spamhaus Project  EWHC 127 (QB) Warby J had observed that it was “likely… to be preferable to address issues of serious harm or Jameel abuse by means of preliminary issues, with any disputes as to meaning being resolved at the same time.”. However, Warby J said that this point should not be treated as statute, or taken out of context. In Ames, he said, he had been contrasting a preliminary issue trial on serious harm with an application to strike out. In Ames, the defendant attempted to have the claim dismissed as hopeless, or as an abuse, and it had failed at great expense without resolving any issues.
The Defendants submitted that, as a rule, if meaning is to be tried then serious harm should also be tried as a preliminary issue. In Lachaux v Independent Print Ltd, Evening Standard Ltd, AOL (UK) Ltd
Reference  EWHC 2242 (QB) at  Warby J had said: "I can say that it is inherently undesirable to separate the trial of issues of meaning and serious harm. Generally, the issues should be tried together." Warby J said this point must be read in context, the general point he had been making was that if serious harm was to be tried then it ought to be tried with meaning.
In the majority of preliminary trials on serious harm, the defendants had indicated intentions to put forward substantive defences which would require extensive investigation, and a consideration of factual issues and matters of law. In this case, the Defendants were keeping their cards to their chests and insisting that they did not need to confirm a substantive defence until the serious harm point had been settled. The Defendants contended that an indication of a substantive defence would be seized upon by the Claimant as a basis to claim aggravated damages. A defence of justification would also deprive them of a discount for an offer of amends, or reduce the discount.
Warby J did not agree. The Defamation Pre-Action Protocol requires defendants to set out their case before proceedings have even been issued. It is wrong in principle to award aggravated damages on account of a good faith defence of justification [Sloutsker v Romanova  EWHC 2053 (QB)]. In his opinion, the discount on an offer of amends would not be lost by indicating a defence of justification at this stage. An offer of amends almost always leads to a discount, because it will almost always mitigate harm. In any event, the discount will be lower if the Defendants wait until after serious harm had been determined to make an offer.
Accordingly, Warby J concluded that it would not be just or convenient to order a preliminary trial on the issue of serious harm, or the Jameel issue, for the following reasons:
The preliminary trial on meaning and defamatory tendency stood a real chance of resolving the case at modest expense without the need for a further trial.
A preliminary trial on serious harm and Jameel would raise issues of fact and of law. There are areas of serious dispute, and disclosure and witness statements would be required.
The defence case raised novel areas of law: Public Figure Point, Reverse Dingle Point and the Archive Point. These points could not be resolved in a vacuum.
It would be undesirable to try the novel issues without the Court of Appeal decision on serious harm in Lachaux.
It was not clear whether the Defendants would advance a defence. If there is no defence, then there would be little difference between a preliminary trial of all the issues suggested by the Defendant and a full trial of the issues.
There was no evidence that a preliminary trial would yield a significant saving.
It was just and convenient to order a preliminary hearing of meaning and defamatory tendency. It was not just or convenient to order a preliminary hearing on serious harm and Jameel abuse.
In Brown Warby J has revisited and added context to comments he made in other judgments dealing with serious harm as a preliminary issue. He has rowed back from his previous recommendation that serious harm should be tried by means of a preliminary issue hearing. This is sensible in light of Judge Moloney QC’s comments in Theedom v (1) Nourish Training t/a CSP Recruitment (2) Sewell. In Theedom at the preliminary hearing on serious harm there was cross-examination of the claimant and the second defendant, and the claimant’s credibility was called into question. The parties’ costs budgets showed that the claimant had spent over £100,000, and the defendants about £70,000 in respect of the serious harm hearing. Judge Moloney QC said that the Court should decline to order preliminary trials on serious harm if the exercise is likely to involve a lengthy evidential dispute or to overlap with other factual issues arising later in the case. In Brown, the Archive and Reverse Dingle Points were relevant to serious harm, but the evidence that would be submitted in respect of these points would also be relevant to quantum.
Following Brown, it appears that it will be difficult to test serious harm as a preliminary issue unless it is obvious that no serious harm has been caused, or that little evidence is required to have a preliminary hearing. In Brown, Warby J also said that the offer of amends mechanism should not operate as a fall back for defendants after they had tried their luck on serious harm. This seems slightly unfair to defendants who genuinely believe that the claimant’s case on serious harm is weak, but would rather make an offer of amends than risk the costs of a full libel trial.