This was the Defendant’s double-barrelled application for (i) a determination of meaning and whether the statement complained of was fact or opinion as preliminary issues; and (ii) summary judgment for the Defendant in a libel claim brought against the publishers of Mail Online. The claim concerned an article published on 6 March 2017 with the headline “Council boss in charge of protecting vulnerable children at Baby P authority ‘sends sexual pics from office toilets to man she met on Plenty of Fish’”.
Practitioners in defamation will wish to note that this case was an example of the court, in directing the hearing of the preliminary issues, permitting an immediate hearing of a strike out application (in contrast to, for example, the comments of Dingemans J in Bokova v Associated Newspapers Limited  EWHC 320 (QB) at ).
Although the article juxtaposed allegations about the sending of texts and photographs with reports of the Baby P and Victoria Climbie cases, Nicklin J held that the ordinary reasonable reader would not conclude that the Claimant had been culpably involved or was in any way connected to those child protection scandals.
The article contained both a factual meaning that was not defamatory of the Claimant and an expression of opinion, which was defamatory at common law. The judge stated: “The fact that the Claimant had sent the messages/pictures whilst she was at work is not something that is stated to be a breach of the Council’s rules. Therefore, the expression of condemnation is a value judgment on that conduct and would readily have been recognised as such. It is not a requirement for any potential honest opinion defence, but, in this instance, readers of each article could make up their own minds about whether they thought the conduct of the Claimant was worthy of the expressed criticism” .
Honest opinion and exculpatory facts
The Defendant contended that the facts admitted by the Claimant in pre-action correspondence and in her witness statement were sufficient for the Court to conclude that an honest person could have expressed the opinions in the article based upon these admitted facts. The Claimant, however, submitted that the Court should not proceed to determine this issue on a summary basis because the Claimant had a real prospect of demonstrating that there were other relevant – exculpatory – facts that would have a bearing on whether the hypothetical honest person could have expressed the relevant opinion.
The judge held, agreeing with the Defendant’s submissions, that the facts which the Claimant sought to rely on were irrelevant to the objective test under s.3(4)(a) of the statutory defence under s.3 of the Defamation Act 2013. If the commentator did know of a series of truly exculpatory facts (see the example given in Branson v Bower (No.2)  QB 737 at ) then, depending upon the assessment of their weight and cogency, this might provide a basis on which the Court could conclude under s.3(5) that a defendant did not honestly hold the opinion expressed -.
As there was no basis upon which to conclude that the Defendant did not honestly hold the opinion expressed, the defence of honest opinion was bound to succeed and the Defendant was entitled to summary judgment on the libel claim.
There was no application to strike out the claim under the Data Protection Act 1998 or for misuse of private information which would continue to trial.
Sarah Palin, instructed by Wiggin LLP, appeared for the Defendant.
The judgment is available here.