Associated Newspapers v Murray – [2015] EWCA Civ 488

Case date: 15/05/2015
Court: Court of Appeal
Area/s of law: Libel
Barrister/s: Andrew Caldecott QC | Sarah Palin

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The Respondent had issued a libel claim in respect of an article published in the Daily Mail on 27 September 2013, alleging that it bore the meaning that she “had given a knowingly false account of her time as a single mother in Edinburgh in which she had falsely and inexcusably accused her fellow churchgoers of behaving in a bigoted, unchristian manner towards her, of stigmatising her and cruelly taunting her for being a single mother.” The Appellant made an unqualified offer of amends which was accepted by the Respondent.

The parties were unable to reach agreement over the terms of any correction or apology and so the Respondent’s solicitors made an application pursuant to CPR Part 53, PD para 6.3 for permission to read a draft unilateral statement. It was not in dispute that she was entitled to make a unilateral statement but the Appellant objected to various sections of the draft. The matter came before Tugendhat J who dealt with the matter on paper, rejecting the objections.

Before the Court of Appeal the issues had narrowed considerably and concerned solely whether the Judge was wrong to have given permission for the Respondent to use the word ‘dishonest’ in the statement when it did not appear in the meaning complained of (and in respect of which the offer of amends had been made). It was submitted that the word gave “an impermissible ‘moral colour’ to the meaning the Defendant conceded the article bore” and that this was “unfair to the defendant.”

Lady Justice Sharp (with whom Lords Justice Ryder and Longmore agreed) dismissed the appeal. She stated shortly that the use of the word ‘dishonest’ “…does not change the position. The sentence, of which it is a part, is no more than the expression in ordinary and less formal language of the correctly identified pleaded meaning.” Whilst it was true that the word did not appear in the pleading “it impossible to see how the claimant could have given an account which she knew to be false (and which contained false and inexcusable allegations against her fellow churchgoers) without being dishonest.”

Lady Justice Sharp went on to make various general observations about the use of statements in open court and approved the Judge’s reliance on the decision of Barnet v Crozier [1987] 1 WLR 272 which established a “relatively high threshold” for intervention by the courts into the reading of statements in open court. Whilst “a statement in open court (whether unilateral or joint) must be fair and proportionate… should not misrepresent a party’s case” and should take into account the interests of third parties; “The court is unlikely to intervene in the absence of any real or substantial unfairness to the objecting or other third party and ‘nit-picks’ are to be discouraged.” Claimants are not necessarily bound by their pleaded cases; “What it is fair and reasonable for a claimant to say… must depend on the facts”.

If there is any objection the matter should be capable of being dealt with on the papers.

Comment

By the time the appeal was heard the issue for determination was very narrow and the result unsurprising. While the ratio of the case is very much fact-sensitive, the judgment contains useful observations about the offer of amends regime generally and also provides a helpful reminder that claimants are permitted a real degree of latitude when making statements in open court.

Andrew Caldecott QC and Sarah Palin were instructed by RPC for Associated Newspapers.

The judgment is available here.