This was a preliminary issues trial of the meaning of the words complained of and whether the defamatory imputations conveyed by the article were allegations of fact or expressions of opinion. The claim was brought by Steve Morgan CBE, the chairman of Redrow plc, one of the UK’s leading housebuilders, in respect of an article, published by the Daily Mail and Mail Online on 24 August 2017, headed “Building tycoons using staff discounts to snap up homes meant for families”.
The Claimant said that the words complained of meant “(i) that the Claimant had exploited company staff and/or shareholder schemes in order to secure for himself at a massive discount to their true value – i.e. for a total of £860,000 instead of the £350,000 each that the had been marketed for – six houses from Redrow’s Stretton Green development which should have been sold to people in need of affordable housing, so that that he could rent them out to staff on his estate instead; (ii) the Claimant and Redrow had had these reprehensible dealings rubber-stamped by tame directors who had been rewarded for doing so with remunerative posts, and had hidden the dealings from public scrutiny by tucking away the details in the small print of corporate documents; and (iii) the claimant was thereby guilty of lining his own pockets in a thoroughly greedy, unethical and morally unacceptable way.
The preliminary issues trial was heard after service of the defence, which advanced defences of opinion and truth. The judge said he had deliberately not read the pleading beyond identifying the meaning advanced by the defendant to ensure that any alleged factual inaccuracies did not encroach upon his decision.
As to fact or opinion, the Claimant submitted that this was a newspaper article making factual allegations upon the back of what readers were told was an investigation by the newspaper and an audit of Redrow’s accounts.
Nicklin J found that the words complained of meant that:
(a) the Claimant was able to take advantage of an opportunity to purchase six houses built by his company that were intended to be sold for less-well off buyers as affordable homes – but which had failed to sell – after his company had been successful in getting local authority planning rules changed;
(b) he purchased the six properties at a substantial discount, £860,000 against a market value of £2.1m and, as a result, stood to make a very large personal gain; and
(c) in consequence, the Claimant had exploited his position to line his own pockets in a greedy, unethical and morally unacceptable way.
Drawing from Warby J’s judgment in Yeo -v- Times Newspapers Limited  1 WLR 971 -, Nicklin J held that when determining whether the words complained of contain allegations of fact or opinion, the court will be guided by the following points:
(i) The statement must be recognisable as comment, as distinct from an imputation of fact.
(ii) Comment is “something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.”: Branson -v- Bower  EMLR 32.
(iii) The ultimate question is how the word would strike the ordinary reasonable reader: Grech -v- Odhams Press  2 QB 75. The subject matter and context of the words may be an important indicator of whether they are fact or comment: – British Chiropractic Association -v- Singh  1 WLR 133.
(iv) Some statements which are, by their nature and appearance comment, are nevertheless treated as statements of fact where, for instance, a comment implies that a claimant has done something but does not indicate what that something is, i.e. that the statement is a bare comment.
The factual allegations made in the article, captured in meanings (a) and (b), were not themselves defamatory.
Meaning (c) was an expression of opinion on the claimant’s conduct. Readers would have recognised the opinion as distinct from factual allegations as “the criticism was attributed to third parties, who are clearly expressing their view as to the claimant’s actions. … Not that it is definitive in relation to the test, but any reader, in my judgment, would be able to make up his or her own mind as to whether taking advantage of the opportunity that presented to the claimant is worthy of the expressed condemnation”. The fourth aspect identified on the test, concerning bare comment, did not arise in this case.
Greater case management of defamation claims
The Court also noted that “one of the great advantages of the removal of trial by jury in defamation cases is the opportunity it presents for greater case management of defamation claims”. “Active case management includes, under CPR 1.4(2), identifying issues at an early stage; deciding promptly which issues need full investigation and trial and accordingly disposing summarily of others; and deciding the order in which issues are to be resolved… The overriding objective is to deal with cases justly and at proportionate cost. All of those point, clearly, to disputes as to meaning being disposed of as a preliminary issue sooner rather than later”. Where meaning is disputed, the parties should consider whether the expense of a defence is justified before the court has ruled on meaning as it may be hugely wasteful of costs for a defendant to plead a full defence prior to the determination of meaning. “The natural and ordinary meaning of the words complained of in a defamation claim can be determined, in most cases, as soon as the Particulars of Claim have been served. No evidence, beyond the words complained of is admissible, so the hearing can be accommodated, as this one was, in a couple of hours” -.
Sarah Palin, instructed by Wiggin LLP, appeared for the Defendant.
The judgment is available here.