Starr v Ward - new trends for defences in defamation cases?

Starr v Ward - new trends for defences in defamation cases?

How does the decision in Starr v Ward further our understanding of slander and libel claims resulting from publications that pre-date the Defamation Act 2013 (DA 2013)? Greg Callus, barrister at 5RB, explores the judgment in this multi-platform claim. Starr v Ward [2015] EWHC 1987 (QB), [2015] All ER (D) 123 (Jul).

Background

The claimant, Starr, issued proceedings against the defendant, Ward, for slander and libel for words spoken and subsequently broadcast on the BBC and ITV, and an eBook she published. The Queen’s Bench Division, in dismissing the claim, held that the claim concerning the BBC was time-barred and the defendant was not a co-publisher. Although the claim against ITV was actionable without proof of special loss, the defendant’s account had been true. With respect to the eBook, justification had been established, although the claimant had not been identified and the claim was an abuse of process.

What issues did this case raise?

This was a defamation case involving actions in both libel and slander. The claimant was an entertainer and comedian who had appeared in an episode of a live-to-tape TV show hosted by Jimmy Savile called ‘Clunk Click’. The defendant, then a schoolgirl aged 15, was in the studio audience with four female schoolmates. The girls at this school were abused by Savile, who gave them cigarettes and invited them to see his shows.

After the show on which the claimant appeared, the girls all went to see Savile in his dressing room, where the claimant was also present. The factual dispute arose out of what happened in that room. The defendant said, and the claimant hotly disputed, that the claimant had touched her bottom and when she recoiled he made a crude remark about her being flat-chested.

This story was:

  • told on a blog, since removed
  • told in person to journalists, giving rise to the claims in slander
  • subsequently broadcast on TV, and
  • mentioned in an eBook

The main issues in the case were:

  • whether the words later broadcast on the BBC were time-barred (in slander)
  • whether the claimant needed to prove special damage in his slander claims
  • whether the defendant was liable for the TV broadcasts as a co-publisher
  • whether the words complained of bore the meanings pleaded by the claimant (including reliance on the facts to support innuendo meanings)
  • whether the words in the eBook referenced the claimant, and if not, whether this part of the claim could be struck-out as Jameel abuse (see Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44, [2006] 4 All ER 1279)
  • whether the defendant’s words were true (a defence of justification), and
  • whether the defendant could avail herself of the Reynolds defence (available in cases of ‘responsible journalism’) or some other form of qualified privilege (see Reynolds v Times Newspapers Ltd [2001] 2 AC 127, [1999] 4 All ER 609)

How did the court go about resolving the issues at stake in the main proceedings?

The court declined to extend time for the claimant to bring his claim in slander in respect of the words spoken by the defendant to the BBC. Although he could not have known about them until they were broadcast, that was only 11-and-a-half months after they were spoken to the journalist. As such, the claimant knew of his cause of action within the one-year limitation period. His solicitors only wrote their pre-action letter ten months later. That was not sufficiently prompt. It was not equitable to extend time, and so the slander claim (including the consequential loss from republication of those words by being broadcast on the BBC) was struck-out.

It was common ground that slander generally requires proof of special damage, and that the claimant had not challenged any of the defendant’s evidence contradicting his pleaded case on special damage. The court permitted an amendment to the particulars of claim to allow the claimant to plead slander per se (because the words accused him of a criminal offence, or because they disparaged him in his ‘office, profession, calling, trade or business’ per Defamation Act 1952, s 2). Having found the case ‘arguable’ to permit the amendments, the judge then agreed with it, holding that the claimant did not have to prove special damage.

The court held that the defendant was not a co-publisher of the BBC words, but was a co-publisher of the ITV words and authorised their release.

The claim in respect of the eBook was dismissed as not being a real and substantive tort within the jurisdiction (ie Jameel abuse). It was conceded that there could be no claim in respect of the defendant’s blog given when it was taken down.

On the facts, the court found for the defendant on the defence of justification. Accordingly, the vexed questions as to the application of Reynolds defences and other qualified privilege(s) did not need to be assessed.

Are there still any unresolved issues which practitioners should be mindful of when advising in this area?

Both parties accepted that the voluntary giving of an interview to camera, which it is known is destined to be shown, makes a defendant a co-publisher. The unresolved question is, where such ‘authorisation’ is not present, can the court find a person to be a co-publisher on the basis that the subsequent republication by another was merely ‘reasonably foreseeable’? The interesting question of when non-journalists can rely on the old Reynolds defence wasn’t answered, but likely will be in the forthcoming Privy Council judgment in Pinard-Byrne v Linton.

Are there any patterns or trends emerging in this area of law?

It is interesting that the claimant here chose to go after the source of the story, rather than the journalistic institutions that gave her accusations such prominence. The degree of source liability for mass-media publications has rarely been in focus, but in Simpson v MGN Ltd [2015] EWHC 77 (QB), [2015] All ER (D) 155 (Jan), Warby J permitted the defendant Mirror newspaper to bring a contribution claim under the Civil Procedure Rules 1998, SI 1998/3132, Pt 20 against their source (the claimant’s former partner, who had given the story about him to the newspaper).

Is there any reason why these claims are not being pursued against the mainstream media and broadcasters?

This claim was defeated by the defence of justification—the defendant’s story was held to be substantially true. Had it been otherwise, she would have been pleading a relatively novel form of Reynolds defence, given that she was the primary source of the allegations. Institutional media defendants would have had a classical Reynolds defence that might have succeeded even if the allegations had been false.

There may also be a tactical element—large institutional defendants have teams of specialist legal advice, and the money to fight such litigation in a way few individual defendants can do.

Any predictions as to how these disputes are likely to be resolved in the future?

This case was fought under the ‘old law’ because the publications pre-dated the commencement of DA 2013 on 1 January 2014. Cases under the ‘new law’ will see meaning and the new test of ‘serious harm’ under DA 2013, s 1 more often fought as trials of preliminary issues. It will likely be more and more rare for there to be this sort of combined trial of meaning and special damage at the same time as a trial of ‘truth’ and ‘public interest’ (replacing the defences of justification and Reynolds privilege respectively)

Interviewed by Sean Delaney.

This article is republished with kind permission of WIPIT’s sister site, Lexis®PSL IP & IT. For a free trial click here.

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