Insights High Court considers impact of Curistan v Times Newspapers on deciding preliminary issues of meaning and fact/opinion in defamation case where qualified privilege defence pleaded

The claimants, Zoe Harcombe PhD and Dr Malcolm Kendrick, issued proceedings for defamation against Associated Newspapers Ltd in relation to articles published in the Mail on Sunday and Mail Online in March 2019 of which they were the subject. In the print edition, there was a main news article and an inside piece. The headline of the main news article read, “Statin deniers are putting patients at risk says Minister”. A separate article, which appeared in the Health, Wealth and Holidays section of the newspaper was trailed in the main article, with a sub-headline, “ ‘Experts’ behind scare stories and why they are wrong”. The supplement article began: “The deadly propaganda of the statin deniers. The science is unequivocal. Statins do protect you from heart attacks but, as this devastating investigation reveals, thousands refuse them because of the deadly propaganda of the statin deniers. Special report by Barney Calman”. The article ran to three inside pages. The headline of a second, double page spread read, “It’s worse than the MMR scare”.

Associated relied on qualified privilege under s 15 and Schedule 1 Part 2 paragraph 9(1)(b) of the Defamation Act 1996 and on s 6 of the Defamation Act 2013 to protect its publication of certain paragraphs, which contained a statement by the Secretary of State of Health as well as reference to some scientific studies. This resulted in difficulties in resolving preliminary issues of meaning and whether the publication complained of was, or contained, an allegation of fact or expression of opinion because of the decision in Curistan v Times Newspapers Ltd [2009] QB 231. Curistan is authority for the position that the court must resolve the extent to which the publication complained of is protected by privilege before it can determine meaning. In other words, when deciding the natural ordinary meaning of an article, the court must first remove from its consideration such parts of the article that it finds are protected by qualified privilege.

Associated applied for directions to resolve the following preliminary issues at a “Trial 1”:

  1. whether the qualified privilege defence under s 15 Defamation Act 1996 was made out;
  2. whether the qualified privilege under s 6 Defamation Act 2013 was made out;
  3. whether the claimants’ plea of malice defeated any qualified privilege defence that was established; and
  4. whether the articles complained of were protected by the public interest defence under s 4 of the Defamation Act 2013.

Mr Justice Nicklin noted that resolution of issues (i) to (iii) would remove the Curistan obstacle. If issue (iv) was not resolved in Associated’s favour, the court could go on and resolve, as the final preliminary issues, the issues of natural and ordinary meaning and whether the statements were fact or opinion. One of the subsidiary issues that would also have to be resolved was whether the main article and the supplement article of the print publication were sufficiently closely connected to be regarded as a single publication, thereby having a single natural and ordinary meaning.

The claimants contended that the court should not direct a trial of the preliminary issues as sought by Associated due to the risk of overlapping between those matters tried in Trial 1 and those left over to a “Trial 2”, in particular, the overlap between “malice” issues. Malice was pleaded in answer to the qualified privilege defences, but it also arose in the context of the statutory malice under s 3(5) in relation to the honest opinion defence, which Associated wanted to be considered at Trial 2.

Nicklin J noted that all issues relating to malice would be resolved by determining the state of mind of Associated and the author of the supplement article, Mr Calman. In fact, his state of mind was also critical to the s 4 public interest defence.

To resolve this, Associated suggested (and the claimants agreed) that the honest opinion defence could be tried in Trial 2, but that the issues under s 3(5), relating to Mr Calman’s state of mind, could be tried in Trial 1. In other words, all the “state of mind” issues could be resolved at Trial 1. Nicklin J said that this was a “novel approach” but that he did not have “any principled objection”, if he were to direct there to be two separate trials.

Nicklin J noted that a trial of the preliminary issues proposed by Associated would be a substantial enterprise involving disclosure, witness evidence and a trial with cross-examination. However, resolving the preliminary issues of meaning and fact/opinion at Trial 1 would mean clarity of the issues that remained to be resolved. Further, the interval between Trial 1 and 2 would provide an opportunity for the parties to take stock and possibly resolve the remainder of the dispute. Even if resolution was not possible, the fact that the court would have set the parameters of meaning and fact/opinion meant that the case management of Trial 2 would be much easier. For example, Trial 1 would clearly set out the extent to which, if at all, Associated could rely on defences of honest opinion and truth.

Further, Nicklin J said, as long as meaning and the issues of fact and opinion remained unresolved, then the proceedings would have to work on the basis of various hypothetical outcomes. This was unsatisfactory because it risked litigation of issues that, in the final analysis, would not be relevant, resulting in substantial costs and waste of the court’s time.

On the other hand, Nicklin J said, the downside of having two trials was that it risked an appeal of the Trial 1 decisions, leading to increased costs and use of court time. This was because, applying the Curistan decision to the case would result in two rival meanings: one natural and ordinary meaning arrived at by excluding the Curistan privileged material, and one in which the Curistan material was taken into account. That issue alone could lead to an appeal, he said.

In the end, Nicklin J concluded that, due to the particular circumstances of this case, he should direct a trial of the preliminary issues sought by Associated, as there were significant benefits in splitting the trials. In Nicklin J’s view, there was a sufficient upside in ordering the trial of preliminary issues that outweighed the significant potential downsides, of which the appeal risk was the greatest. Nicklin J also ordered that Trial 1 should include resolution of the s 3(5) issues arising under the honest opinion defence. (Zoë Harcombe PhD v Associated Newspapers Ltd [2022] EWHC 543 (QB) (10 February 2022) — to read the judgment in full, click here).