B e f o r e :
THE HONOURABLE MR JUSTICE NICKLIN ____________________
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MS A. MARZEC (instructed by Lupton Fawcett LLP) appeared on behalf of the Claimant. MR A. SPEKER (instructed by Brett Wilson LLP) appeared on behalf of the Defendants. ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
MR JUSTICE NICKLIN:
These are libel proceedings brought by the claimant, Matthew Zarb-Cousin, against the Association of British Bookmakers and the second defendant Malcolm George.
On 26 September, the claimant and the second defendant appeared on Channel 4 News. A presenter, Cathy Newman, introduced a section of the programme which lasted for about 14 minutes. She said this:
A pre-recorded item was then shown as part of the programme. It consists of mainly an interview with Hussain Varajee. He was a self- identified gambling addict who talks to the reporter about his addiction and the consequences for him. The item concentrates upon what are called "fixed odds betting terminals". Pictures are shown of the machines in use, particularly offering roulette. The reporter outlines that up to four machines can be found in any betting shop and using them, it is possible to bet £100 every 20 seconds. Repeating a phrase from the introduction, he says the critics refer to them as "the crack cocaine of gambling". Mr Varajee says that from the moment that he started using the machines he was addicted. You can see him walking through the centre of a Gloucestershire town with the reporter pointing out the large number of betting shops that can be seen walking only a short distance. The reporter says that Mr Varajee has been made bankrupt eight years ago and in 25 years, Mr Varajee estimates that he has lost over £1 million and that his addiction contributed to the breakdown of two relationships. His example is said to be fuelling:
Mr Davies then explains that the Government is expected to announce its review into gambling in the Autumn and that it was anticipated that the maximum stake for the fixed odds terminals would be reduced from £100 possibly to £2 as was lobbied for by some groups. One independent bookmaker in Gloucester, David James, was then asked by Mr Davies what would happen if the stakes were substantially lowered in this way. He states that he would have to close his business. At least 60% of his business is said to come from the fixed odds betting terminals in his shop. Mr James expressed his sympathy for those of his customers that have a gambling addiction but asks rhetorically: what is he supposed to do? He has a business to run and four people employed in it. Mr Davies tells viewers that the gambling industry says that thousands of jobs are at stake and it has significantly upgraded the support available for problem gamblers by enabling limits to be placed on betting and offering facilities to allow people to "self-exclude" from betting shops.
A man, introduced as Tony, is interviewed as another problem gambler who played roulette on fixed odds terminals every day. He identifies as a current gambling addict. Mr James is then asked whether he thinks the betting industry has acted responsibly in relation to these machines. He responds that he does not think that more could have been done. Mr Davies puts it to him that the stake could be lowered from £100 but Mr James answers that, if that happened, no one would play the machines and the machines could be "chucked out on to the street". At the end of the item, Mr Varajee says that he has stopped gambling but that he still feels a strong urge to use the machines. However, a final voiceover from Mr Davies tells viewers that Mr Varajee has, since the interview, admitted that he has started gambling again.
The programme then returns to the studio and the presenter, Cathy Newman. She introduces the second defendant as the spokesman for the first defendant sitting with her in the studio. The claimant participates on a video link and was introduced as "former gambling addict and campaigner". Ms Newman asks the second defendant, who is captioned on screen as "CEO of the Association of British Bookmakers", whether he feels sorry for Mr Varajee. There then follows a debate between the claimant and the second defendant moderated by Ms Newman. I say "moderated", but Ms Newman presses the second defendant on his answers but does not probe the claimant's answers. I am not being critical of that, it is entirely a matter of editorial judgment. I simply note it because it is fair to say that the second defendant would appear to viewers to be somewhat on the backfoot in this programme. As part of their on-screen argument, the claimant and the second defendant trade statistics as to the number of problem gamblers there are and whether there has been a significant or reliable statistical percentage increase in the number of problem gamblers between 2012 and 2015. In addition, the claimant makes a number of what would appear to be factual points during the debate: (1) that many betting shops are single- manned and comments that that limits the ability to enforce self-exclusion or to allow any meaningful monitoring of potential problem gamblers using the machines; and (2) 97% of police calls to gambling premises are to betting shops and that a third of fixed costs betting terminals are smashed every year. The claimant comments that the reason for this happening is because people are addicted to them.
When I had watched the item before this hearing, and that is deliberately before I had read and looked at the skeleton arguments, I gained an impression that the second defendant was making pointed references to casinos in a way that appeared unnatural. At one point, he says, "Do you move somebody like Mr Hussain [by which he means Mr Varajee] out of a betting shop where he gets personal interaction? Do you move him into a casino? Do you move him online? Do you move him into an amusement arcade?" implying that, in each of those alternative scenarios posited, Mr Varajee would be worse off and at greater risk. He repeats essentially the same points a few minutes later. Towards the end of the interview, the two men speak over each other. The claimant is attempting to make a point that a large number of people are addicted to the fixed odds machines and the second defendant says, although part is over-spoken by the claimant:
The tone is dismissive of the claimant and then the claimant responds:
It is those words, before the claimant's response that I have just quoted, that form the basis of this libel action. A claim form was issued on 21 November 2017 and served with particulars of claim. The claimant complains of the publication of the words that I have quoted and contends that in their natural and ordinary meaning, the words meant and would have been understood to mean that:
A Defence was served on 11 January 2018. I have not read the defence in any detail save to note where any particular meanings are advanced by the defendant. One such meaning comes before an honest opinion defence:
There is a second meaning that is advanced but at the same time it is denied. I do not think it has been urged on me by Mr Speker during argument but, in relation to a potential truth defence, the defendants add to the end of the meaning I have quoted "or there were reasonable grounds to suspect as much". The reason I have read nothing further in the defence, and deliberately so, is that it is important that I do not cloud my judgment of the meaning the hypothetical ordinary reasonable viewer would have understood the words complained of to bear by learning facts the viewer would not have known.
By Order of 9 May 2018, Master Thornett directed trial on the following preliminary issues:
This hearing has been the trial of those preliminary issues as ordered.
It is common ground between the parties that although issue (c) would be, in the terms as drafted, an issue upon which evidence could be called as to the actual reputational harm, at this stage the Court should rule only whether any defamatory imputation the Court finds is sufficiently serious in the circumstances to raise the inference of serious harm applying Lachaux -v- Independent Print Ltd [2018] QB 594 at [82(3)] in which Davis LJ noted:
Assuming preliminary issue (b) were resolved in the claimant's favour and answer 'no' to the serious harm issue under (c) would not put an end to his claim, it would mean merely that he would need then to prove serious harm to reputation had been caused by the publication at a subsequent trial.
THE LAW
As to the general principles to be applied, there is little dispute between the parties. In relation to meaning, I will need to deal with one submission particularly made by Mr Speker.
Meaning
In Brown -v- Bower [2018] EMLR 9 , I set out the approach to assessing meaning in [10] to [17]:
Both parties have naturally emphasised the importance of context in the assessment of meaning and I will bear that firmly in mind. It is why that I have set out in some detail a description of the full news item that preceded the debate.
The legal test of whether an allegation is defamatory at common law is not in dispute. In Sube -v- News Group Newspapers Ltd [2018] EWHC 1234 , Warby J said this in [23]:
Mr Speker on behalf of the defendants rightly identifies two further important principles that apply when the Court is determining meaning and whether the words complained of make an allegation of fact or opinion.
The rather more contentious submission Mr Speker makes is that the Court, when assessing meaning, should make appropriate allowance for the fact that this was "political speech" in the sense that it was a debate between people on a matter of significant public interest. He has referred me to Crow -v- Johnson [2012] EWHC 1982 (QB) where Bob Crow had sued Boris Johnson over an election leaflet issue by Mr Johnson. The words of the leaflet are set out in paragraph 6 and the meaning attributed to them in paragraph 8. Tugendhat J was asked to determine meaning and he applied the conventional authorities to the task but, in doing so, he also referred to a Scottish decision of Curran -v- Scottish Daily Record & Sunday Mail Limited [2011] CSIH 86 ; [2012] SLT 359 and quoted from that decision in paragraph 14, the thrust of which was that:
The judge held that one of the meanings complained of was not defamatory at all and the other two were not meanings that bore any defamatory meaning of the claimant (at [22]- [23]). In [24] he said:
Obviously, that statement has to be read in light of his earlier findings that the statements were not defamatory of the claimant. Indeed, I understand Tugendhat J there to be emphasising the importance of context in the determination of meaning. That is uncontroversial. Mr Speker, however, sought to extract the additional principle that partisan statements, that are seen as such, are not capable of being defamatory. I do not accept that Tugendhat J was laying down any such broad principle. Indeed, it would run contrary to the authorities as to the proper approach to meaning. If a clearly defamatory statement is made by one political opponent against another, the fact that they would be seen to be partisan cannot strip the words of their objective meaning or lead them to be assessed in any different way. The objective meaning of words, assessed in their proper context, is a constant.
In support of that, Ms Marzec has referred me to Warby J's decision in Barron MP & Ors - v- Collins MEP [2015] EWHC 1125 (QB) at [54]. The judge said:
The law of defamation must give due effect to Article 10 but, as Warby J has made clear in that paragraph, this is done by other means than the rules governing meaning. It is to be remembered that one of the important functions for the determination of meaning is to assess the objective harm that is caused to reputation. That is separate from the question of whether there is a defence available.
Fact/Opinion
As to the approach when determining whether a publication is a statement of fact or an expression of opinion, I direct myself as to the correct approach by reference to Morgan -v- Associated Newspapers Limited [2018] EWHC 1850 QB at [13]:
Ms Marzec, for the claimant, submits that allegations attacking so mebody's integrity or alleging that they are dishonest or lying are not generally treated as statements of opinion. She relies for that proposition upon passages from Eady J's judgment in Wasserman -v- Freilich [2016] EWHC 312 (QB) [16] and [21]-[22]:
I think that some caution must be applied before overly prescriptive rules are adopted as to the assessment of fact or opinion. The pitfalls of doing so are perhaps demonstrated by Singh . In my judgment, what Eady J is saying in those passages is that context is likely to play a critical role in this assessment. It is the fourth point from Morgan about bare comment. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact. The real question is whether, in context, the allegation of dishonesty would be understood to be the deduction or inference of the speaker. In most cases, it will be the context in which the words appear or are spoken that will provide the answer to whether the words are (or would be understood to be) opinion or whether the statement is 'bare comment' and therefore potentially liable to be treated as an allegation of fact. Asking a question of whether the statement is "verifiable" is perhaps a dangerous gloss on this approach.
Indeed, I note from Eady J's decision in Lowe -v- Associated Newspapers Ltd [2007] QB 580 , he said this in relation to the test:
As to "bare comment", Lord Phillips in Joseph -v- Spiller [2011] 1 AC 852 said at [88]-[89]:
Then in [5], Lord Phillips said this:
SUBMISSIONS
Ms Marzec submits that the words spoken by the second defendant - "It's a complete misportrayal of our industry, deliberate, conscious, by a man who's funded by the casino industry" - make a clear allegation of fact that the claimant is paid by the casino industry to make false and dishonest statements in order to protect that industry. She contends that, by implication, he deliberately misled and lied to Channel 4 News viewers for money whilst hypocritically pretending to be a campaigner acting in the public interest.
Mr Speker submits that, having regard to Singh , the Court ought first to ask whether the second defendant's words were expression of opinion. He submits that the words "complete misportrayal of our industry, deliberate, conscious" are clearly an expression of opinion on the statements made by the claimant during the debate. That, he submits, would have been obvious to viewers. They are the second claimant's view.
He also submits that the words "by a man who's funded by the casino industry" are an expression of an opinion also and would be recognised as such and are, in any event, not defamatory.
But, perhaps most importantly, he contends that viewers would see that this was a partisan debate between two people and that any suggestion that the claimant had been taking money from the casino industry to say what he had said was "water off a duck's back".
DECISION
Fact/Opinion
There is perhaps a danger here of being overanalytical. Mr Speker's argument that the first half of the statement is opinion expressed on the claimant's contribution to the debate might have been unanswerable if it had stopped there, but it did not and I am not sure that separating out the parts of the statement in this way is the correct approach, but even if were, Mr Speker would be left with the statement that the claimant was being funded by the casino industry. Although that is not a defamatory allegation of fact if isolated in that way, in my judgment, that is a plain statement of fact and it cannot be regarded as a statement of opinion, even making allowances for the nature of the debate, the partisan appearance of the parties, and all the context. It comes, as Ms Marzec rightly says, out of the blue in the programme. I described it in argument as a "reveal". It is a factual statement the second defendant deployed to support his contention that the claimant had been guilty of a complete misportrayal of the bookmaking industry, a misportrayal that was both deliberate and conscious.
In my judgment, it is important not to dissect the statement in this way but to look at the overall impression that it would have had on viewers. The overall impression I got from viewing the programme once - I have now seen it twice as it was played at the beginning of the hearing - was that the claimant was the paid mouthpiece of the casino industry. This was not an insignificant piece of information and I think it would clearly have struck viewers. Up to that point, although the second defendant might have been regarded as someone who was speaking on behalf of an organisation with a vested interest, the claimant did not appear (or at least not obviously appear) as a spokesman for any particular body that would have such a vested interest. It is true that the claimant is captioned as being from the 'Campaign For Fairer Gambling' but I confess that was something that I had missed at the time I watched the programme because, when I was watching it, the claimant had already been introduced already as someone who had had a problem with gambling. My attention was drawn more to what the was saying. In any event, I do not think this is a big point. Even if a viewer had seen the caption, it would not have been immediately clear what stance this organisation would have (it was not obviously an "anti- gambling group"). A viewer's impression of the claimant's stance would be judged by what he had to say and what he said did not articulate the view of any particular body or interest group. He put forward statistics and arguments about the harm caused by FOBTs. Other than obviously being opposed to FOBTs, he did not appear to have any particular axe to grind.
When, therefore, at the end of the programme the second defendant dismisses the claimant's points as a complete misportrayal, the really significant point that comes across is that he is a paid spokesman. The obvious implication in those words is that what the claimant said could not be relied upon because he was the paid spokesman of the casino industry. The viewer knew, because it was a point that the second defendant made twice, that if gamblers were not able to bet on FOBTs, they would be driven potentially to casinos or other places at which there was less control or care for those with gambling addictions. The claim that the claimant was the paid lobbyist immediately called into question his integrity and the reliability of the information that he had put forward during the debate. There is no doubt that the second defendant said what he did to undermine the claimant personally as an effort to discredit what he said.
I am quite satisfied the overall effect of the statement was not to convey the expression of an opinion but to make a clear factual statement as to the status of the claimant. That is inexorably linked to what that is said to have led to: his willingness deliberately to mislead the audience as to the facts relating to FOBTs.
Applying the guidance of Singh to the approach of determining fact or opinion before finding the single meaning, I reject the submission that the statement complained of was an expression of opinion.
Meaning
Turning now to what I consider the single meaning of the statement to be, I do not accept Ms Marzec's submission that the words implied dishonesty. Of course, somebody who is willing to mislead may resort to dishonesty but not necessarily so. There are ways of presenting information which mislead but which are not dishonest. In context, I do not think that the statement goes so far as to allege dishonesty but, equally, I am quite sure that the conduct of the claimant alleged is said to be deliberate. The contrary is unarguable. That is the plain meaning of "deliberate and conscious".
Mr Speker, however, makes a powerful point as to what the viewer is to make of the emphatic denial that they see from the claimant immediately after the second claimant's words. I think there is force in this submission. It is analogous to the newspaper article that reports allegations made against somebody but also includes a clear denial by that person. Whilst everything does depend on the context, the effect of that type of reporting is often not to create the impression of guilt but to leave in the mind of the ordinary reasonable reader grounds to suspect the person of guilt of the conduct alleged. Sometimes, the effect of the denial can itself be undone by the way it is reported. If a mountain of evidence is presented in an article and there is a mealy- mouthed denial, the reader may conclude that the denial is insincere or not to be accepted.
Here, the relevant exchange is so quick the viewer is really only left with an allegation and a denial. Of course, context applies equally to this question. I do bear in mind in assessing the overall meaning that the second defendant, given his position, would have appeared to viewers to be somebody who would know about the industry. This allegation would not therefore be one that would be immediately discounted by viewers as not being reliable.
In my judgment, therefore, the single meaning of the words complained of is that "there are reasonable grounds to suspect that the claimant was willing deliberately to mislead the audience of Channel 4 News with inaccurate information because he was paid to do so by the casino industry."
It would not be right to find that the meaning was one of guilt ( Chase level 1) because that would be to ignore completely the clear denial of the claimant. The ordinary reasonable viewer would not ignore that in reaching his or her conclusion about the overall message or meaning that was conveyed. Certainly, in my judgment, the second defendant's statement would give viewers real reason to doubt what the claimant had to say on this topic.
Defamatory at common law?
Is the meaning that I have found defamatory at common law? In my judgment, the answer is clearly 'yes'. Although it is a Chase level 2 meaning, it is a meaning that attacks the claimant's integrity and whether he could be trusted. As I have said, the immediate effect of it would have led people to doubt what he said. Obviously, a level 1 meaning would have been more damaging, but I am quite satisfied the Chase level 2 meaning that I have found would "substantially affect, in an adverse manner, the attitude of other people towards the claimant or would have a tendency to do so."
Serious Harm
The final issue that I have to decide is whether that defamatory meaning is sufficiently serious that the Court can draw the inference of serious harm and whether the Court would be willing to draw that inference. I am satisfied that it is. Mr Speker's arguments on this were mainly premised on a finding that the words were an expression of an opinion. He had developed submissions that, in the rough and tumble of a political debate, the expression of a defamatory opinion, not adopted by the broadcaster, would not be likely to cause serious harm to reputation. As I have found that the words do make an allegation of fact, largely the strength of those arguments falls away. I do bear in mind that this is a Chase level 2 meaning and that is not a conduct of the most serious kind, for example, criminal or seriously antisocial activity. Nevertheless, as I have found, it does strike at one of the core attributes of personality: the claimant's integrity. It is an allegation, even at Chase level 2, that could not be described as insignificant. Even discounting republication that is relied upon, this was an allegation that was published to hundreds of thousands of viewers of Channel 4 News. In my judgment, the Court can and should draw the inference of serious harm.
Basis of the opinion indicated?
In light of my findings, it is not necessary for me to decide the final preliminary issue of whether the opinion indicated, in general or specific terms, the basis of the opinion stated. In case I were wrong in my finding about the statement being an allegation of fact rather than the expression of opinion, although the element of the meaning relating to misportrayal of the bookmaking industry did indicate, in general terms, the basis of the opinion stated, i.e. the statements put forward by the claimant during the debate, the claim that the claimant was funded by the casino industry did not indicate the basis on which that opinion was ased either in general or specific terms. Mr Speker said the basis would be the same: the statements he made during the programme. In my judgment, that does not follow but it becomes rather difficult to apply this argument given that whether a person is paid by a particular interest group is a matter of fact and not opinion.
Those are my determinations on the preliminary issues.