Allen v Times Newspapers Ltd [2019] EWHC 1235 (QB)

https://www.bailii.org/ew/cases/EWHC/QB/2019/1235.html

[All numbers in square brackets refer to paragraphs in the judgment].

Background

This libel action arose from two almost identical articles relating to the Grenfell Tower disaster which were published by the Times in hard copy and online on 1 July 2017. The print version of the article was headed ‘Grenfell cladding boss is a government adviser’, whilst the online version was textually identical bar a slight (irrelevant) variation in the headline (together “the Article”). The ‘government advisor’ referred to was the claimant, Mark Allen. The article reported that the claimant, an architect employed by a company involved in the manufacture of cladding used on Grenfell, is a member of a committee which advises the government on building regulations (the “BRAC”).

In May 2018 Mr Allen alleged that the Article suggested he had acted corruptly. The newspaper denied that contention, advancing a positive case as to the meaning of the article, said to be a non-defamatory one, as follows: "Mark Allen, a senior representative of Saint-Gobain UK, a company involved in the manufacturer of the Celotex insulation boards fitted to Grenfell Tower, is on the Building Regulations Advisory Committee, which advises the Secretary of State on building regulations. The insulation boards are highly flammable and suspected of contributing to the Grenfell fire. Despite the product having been withdrawn from use on high-rise buildings, Mr Allen remains on the Committee. There is concern that building regulations are not fit for purpose and, in the circumstances, the appointment to [the Building Regulations Advisory Committee] of Mr Allen or other members with roles in the construction industry to this Committee may be inappropriate."

At the end of June 2018 Mr Allen issued proceedings no longer alleging corruption but instead, that [1] Mr Allen, as technical director at Saint-Gobain, was responsible for the design of the insulation that caught fire, and [2] Mr Allen, as a committee member of the BRAC, represented a conflict of interest.

The Times was successful in attaining an order for the determination of two questions as preliminary issues in the claim: “(1) The meaning(s) of the words complained of at paragraphs 7 and 8 of the Particulars of Claim and (2) Whether such meaning(s) are defamatory of the claimant at common law”.

Judgment

Counsel for the claimant, Robert Sterling, submitted that whilst there must be a single meaning, it can have more than one element. Notably, that the ordinary reasonable reader would understand the article to allege:

(1) First strand: that there were strong, alternatively reasonable, grounds to suspect that Mr Allen was responsible for the design, specification and manufacture of the highly flammable and dangerous Celotex insulation used in the construction of the external cladding to Grenfell Tower; and

(2) Second strand: that Mr Allen was acting wrongly and in conflict of interest by being a member of the BRAC when he was a senior executive director of Saint-Gobain and Saint-Gobain was a contractor, chosen by Kensington Council, for installing insulation in its high-rise flats, and when he had remained as a BRAC member after the Grenfell fire.

(1) First strand

Mr Sterling emphasised the importance of the headline and referred to Lord Nicholls’ observation in Charleston v News Group Newspapers Limited ([1995] 2 AC 65, 74) that "Those who print defamatory headlines are playing with fire". Mr Sterling submitted that "Grenfell cladding" is a reference to the tragedy, and the word "boss" indicates that the claimant was the boss responsible for the Grenfell cladding. Of the article itself, it was argued that Mr Allen’s role as technical director of Saint-Gobain led to an ‘inescapable inference’ that he bore direct responsibility for the Celotex insulation’s design, specification and manufacture. He also argued that a reference to the withdrawal of the product from use on high-rise buildings, "strongly suggests an admission of personal fault in regard to the product on the part of Mr Allen." Finally, Mr Stirling submitted that there was nothing by way of antidote to the defamatory sting complained of.

Warby J did not accept this and agreed with counsel for the Defendant, Jonathan Scherbel-Ball, that this approach to the pleaded meaning was strained, forced and unreasonable [24]. Warby J considered it a significant jump from the claimant being presented as the technical director of the company that made the suspect panels, to the conclusion that he was personally responsible for their design and suspected faults. Further, the Judge denied that the withdrawal of the panels from sale necessarily meant an admission of fault on Mr Allen’s behalf. Finally, the Judge did not consider that the claimant’s meaning engaged the ‘bane and antidote’ principle, but rather raised the question of whether there is any, and if so what, bane.

Warby J gave a useful exposition of the difference between implications and inferences (from para 26). Mr Scherbel-Ball submitted that a meaning ascertained by way of inferential deduction by the reader – rather than implied directly by the words – is not part of the natural and ordinary meaning. He considered this distinction significant because the claimant's meanings were all dependent upon inferences. In contrast, Mr Sterling suggested that this was an artificial distinction, which on a proper analysis finds no support in the authorities.

Warby J found that, whilst the words ‘infer’ and ‘imply’ are often used interchangeably, there is a difference [28]. Whilst an implication is something conveyed to the reader by the words used by the writer (i.e. flowing from what is expressly stated), an inference is a conclusion drawn by the reader as a result of a process of deductive reasoning undertaken by him/her, often including extraneous facts or based on moral/political value. It is suggested therefore that for meaning determinations, the focus should be on implication, rather than inference, to ensure that the Court does not arrive at an unreasonable conclusion.

In relation to the first strand of meaning, then, the court decided that neither by inference nor by implication would a reasonable reader come to the meaning put forward by the claimant (that the claimant was responsible for the manufacture of the panels that caused the Grenfell fire).

(2) Second Strand

The Judge agreed with Mr Sterling that the Article presents to the reader as significant that the claimant is both (a) a senior executive from "the company that made the insulation boards" for Grenfell Tower and (b) "an adviser to the government on building regulations" [33]. The question was: what does the Article suggest is the significance of these dual roles?

Warby J did not agree fully with how the claimant’s meaning was expressed in submissions – for example, Mr Sterling claimed that the Article makes “the clearest statement” that the claimant should not be on the committee, whilst the judge considered the Article to only imply as much (though an implied meaning was not pleaded). Yet, the defendant’s version of meaning regarding the second strand was also not accepted: it was not enough to state that the article implied that Mr Allen’s appointment to the BRAC “may be inappropriate” in the circumstances. Warby J thus came to a meaning on his own formulation as follows: “[T]he claimant misconducted himself by remaining on the BRAC when it discussed the Grenfell Tower fire the week before the Article: by doing so despite the facts that (a) he was a senior executive and technical director of the company that made the Celotex insulation boards, which (b) were fitted to the Tower, (c) had proved on investigation to be highly flammable, and thus come under reasonable suspicion of being implicated in the spread of the fire, and (d) been withdrawn from sale, he placed himself in a situation of conflict of interest.” [56] In finding a meaning different from any put forward by the parties, the two limiting principles are that:

the court cannot find a meaning that is more injurious than the claimant's pleaded meaning (Slim v Daily Telegraph Ltd [1968] 2 QB 157 at para 175); and
the court should be slow to find a meaning different from that of which the claimant complains, when the claimant has repeatedly attempted to formulate a defamatory meaning but has chosen not to formulate the meaning which the court may consider the words to bear (Dell'Olio v Associated Newspapers Ltd [2011] EWHC 3472 (QB) at paras 31-32).

Warby J agreed with Nicklin J in Hewson v Times Newspapers Ltd [2019] EWHC 1000 (QB) that courts today should not be absolutely barred from finding a meaning which is more serious than one contended for by the claimant, though caution should always be exercised [50].

There was also discussion on to what extent a claimant can change his submissions from what was initially pleaded. Mr Sterling submitted that a claimant can always change his case at trial. This was rejected by Warby J who held that last minute changes could be unfairly prejudicial to the other side. Any changes must be in accordance with the overriding objective and the efficient administration of justice. Further, if the court is to adopt a meaning that is not advanced by either the claimant or defendant, it should be slow to adopt a new meaning that is ‘substantially different’.

Comment

Warby J usefully clarifies that in meaning applications there is a conceptual difference between inference (drawn by the reader through deductive reasoning) and implication (flowing from what is expressly stated), and that the latter should be focused on by the court to avoid an unreasonable conclusion.

His judgment also gives guidance as to the principles that will be applied when finding a natural and ordinary meaning different to that advanced by the parties and, in particular, whether the Court is entitled to find a meaning more injurious to the claimant than that set out in his pleaded case (see paras [40]-[55]).