Neutral Citation no.  [1999] 1927

Ref:    

COGC2855

 

 

 

Judgment: approved by the Court for handing down

Delivered:

18/05/99

(subject to editorial corrections)

 

 

 

 

                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                                  QUEEN'S BENCH DIVISION

 

                                                                    ------------

 

BETWEEN:

                                                                          

                                LIAM NEESON AND NATASHA RICHARDSON

                                                                                                                                                      

                                                                                                                                      Plaintiffs;

 

                                                                        and

 

                               BELFAST TELEGRAPH NEWSPAPERS LIMITED

 

                                                                                                                                   Defendant.

 

                                                                    ------------

COGHLIN J

            Liam Neeson and his wife, Natasha Richardson, both of whom are successful and well known stage and screen actors, have each instituted proceedings for libel alleged to have been contained in an article published by the defendant in the issue of the Sunday Life Newspaper of 20 September 1998.  By way of summons issued pursuant to Order 82 Rule 3, Order 82 Rule 3A, Order 18 Rule 19 and Order 22 Rule 1 the defendant has attacked the pleadings in both actions and seeks various forms of consequential interlocutory relief.

The factual background

            On Saturday 19 September 1998 there was extensive press coverage, both in England and Northern Ireland, of a story alleging that the marriage of Mr Neeson and Ms Richardson had come to an end and that Ms Richardson was seeking a divorce.  The defendant accepts that there was no truth whatsoever in such a story and, on the same day, the Belfast Telegraph Newspaper published an article which referred to the reports but also recorded repudiation of the story by Mr Neeson's family and friends.  On the following day, 20 September 1998, the Sunday newspapers continued to express interest in the story and the article was published in the Sunday Life which is the subject of these proceedings.  The edition of the newspaper for that day bore a picture of Liam Neeson on the front page with a reference to an article on page 3 under the heading "Neeson's pals on those love‑split rumours".  The article on page 3 occupied the full page and appeared under the heading "Friends deny marriage of Ulster superstar is on the rocks" followed by the much larger headline "Has curse of Hello struck again?".  Page 3 consisted of a main article (with photographs), by‑lined Stephanie Bell, together with a box containing text and photographs headlined "Diary of romance" and an extract from an edition of Hello Magazine consisting of both photographs and text. 

            Before this court the plaintiffs were represented by Mr Weir QC and Mr Ringland while Ms Adrienne Paige QC and Mr Simpson appeared on behalf of the defendant.  I am indebted to both sets of counsel for the assistance which I derived from their concise and well argued oral submissions and to Ms Paige QC for the comprehensive skeleton argument and copy authorities which she furnished to the court.

Order 82 Rule 3A

            Order 82 Rule 3A is a new Rule which was added to the Rules of the Supreme Court (Northern Ireland) 1980 in February 1999 and the material part thereof provides as follows:

                        "3A-(1)   At any time after the service of the statement of claim either party may apply to a judge in chambers for an order determining whether or not the words complained of are capable of bearing a particular meaning or meanings attributed to them in the pleadings. 

 

                        (2)        If it appears to the judge on the hearing of an application under paragraph (1) that none of the words complained of are capable of bearing the meaning or meanings attributed to them in the pleadings, he may dismiss the claim or make such other order or give such judgment in the proceedings as may be just."

            An equivalent provision came into force in England and Wales on 1 September 1994 and has been the subject of consideration by the Court of Appeal in England and Wales in a number of decisions.  In Gillick v BBC [1996] EMLR 267 Neill LJ approved and summarised the principles which the court should observe, previously set out by Bingham LJ, as he then was, in Skuse v Granada Television Limited [1996] EMLR 278, in the following terms at page 272:

 

                        "(1)      The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once. 

 

                        (2)        The hypothetical reasonable reader (or viewer) is not naive but he is not unduly suspicious.  He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking.  But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. 

 

                        (3)        While limiting its attention to what the defendant has actually said or written the court should be cautious of an over-elaborate analysis of the material in issue. 

 

                        (4)        A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article. 

 

                        (5)        In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court are entitled (if not bound) to have regard to the impression it made on them.

 

                        (6)        The court should not be too literal in its approach.

 

                        (7)        A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right‑thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally."

            After reviewing a number of relevant authorities in Mapp v News Group Newspapers Limited [1998] QB 520, Hirst LJ, in the course of giving the judgment of the Court of Appeal, observed, at page 526E:

 

                        "In my judgment the proper role for the judge, when adjudicating a question under Order 82, Rule 3A, is to evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his own judgment in the light of the principles laid down in the above authorities and without any Order 18, Rule 19 overtones.  If he decides that any pleaded meaning falls outside the permissible range, it is his duty to rule accordingly.  It will, as is common ground, still be open to the plaintiff at the trial to rely on any lesser defamatory meanings within the permissible range but not on any meanings outside it.  The whole purpose of the new Rule is to enable the court in appropriate cases to fix in advance the ground rules on permissible meanings which are of such cardinal importance in defamation cases, not only for the purpose of assessing the degree of injury to the plaintiff's reputation, but also for the purpose of evaluating any defences raised, in particular, justification or fair comment."

            Prior to September 1994 such a ruling from the judge could only be obtained at trial or, subsequent to the decision in Keays v Murdoch Magazines [1991] 1 WLR 1154, by way of a preliminary ruling pursuant to Order 18 Rule 19.  However, as Hirst LJ noted in the Mapp case, the Order 18 Rule 19 application only applied in plain and obvious cases.  Order 82 Rule 3A followed a recommendation by the Neill Committee that either party engaged in a libel action should be able to obtain, as early as possible in the litigation, a ruling in relation to the pleaded meanings.  This enables the parties to make an early realistic assessment of possible injury to the plaintiff's reputation and the strength of any available defences thereby promoting early settlement in many cases and reducing the complexity of the juries task at trial.  As the Neill Committee observed:

                         "... more time is spent on preliminary skirmishing in defamation actions than in any other forms of litigation, either at the interlocutory stage or at the beginning of the trial before the jury is empanelled.  This is in our opinion, and experience, largely because of the nature of the cause of action.  In no other area of the law is there so much divergence in the circumstances from one case to another.  It is hardly possible to imagine a `standard' libel action."  (Supreme Court Procedure Committee, Report on Practice and Procedure in Defamation, July 1991, paragraph 1.13.)

            As a foundation for her challenge to each of the specific meanings pleaded by the plaintiffs in their statements of claim, Ms Paige QC attacked the fundamental premises which appeared to her to underpin the plaintiffs' actions.  She submitted that:

(i)         Contrary to the meanings pleaded, the words complained of simply reported opposing claims about the state of the marriage with the principal emphasis being placed upon denials of a marriage breakdown and, consequently, the article was not capable of being construed by reasonable readers as alleging that the marriage had in fact broken down or that the parties had in fact split up or that the parties had in fact made false representations about the state of their marriage etc.  In support of this argument Ms Paige QC relied upon the "police inquiry" cases of Lewis v Daily Telegraph [1964] AC 234 and Mapp v News Group Newspapers Limited [1998] QB 520 as well as the unreported decisions in Rechem International Limited v Greenpeace and Manonbendro Chakravati v Advertiser Newspapers in respect of which she furnished LEXIS transcripts of the relevant parts of the judgments.

(ii)        Ms Paige QC further submitted that, in any event, an allegation that a marriage has broken down cannot, in itself, in the absence of any alleged misconduct or impropriety on the part of either or both parties, constitute a defamatory imputation.  In addition, she argued that it would not of itself be defamatory of either plaintiff to allege that he or she had concealed that the marriage was in difficulties by falsely representing to family and friends that it was a happy marriage.  In Ms Paige QC's submission there might be any number of worthwhile reasons for making such a representation including, for example, a desire for privacy, a wish to give the marriage a chance to recover, the need to protect children etc.  Conduct, which, in the absence of some dishonest or improper motive or purpose, could not amount to a defamatory imputation.  In this context Ms Paige QC referred the court to the proposition that:

 

                        "... it is unreasonable that when there are a number of good interpretations, the only bad one should be seized upon to give a defamatory sense to the document." - see the judgment of Lord Blackburn in Capital and Counties Bank Limited v Henty [1882] 7 App Cas 741 at 786 cited with approval by Hirst LJ in Mapp v News Group Newspapers Limited.

            In response, Mr Weir QC was content to rely upon the meanings as pleaded in the statements of claim emphasising that, whatever may be the position in England and Wales, in Northern Ireland an allegation that a marriage was failing was certainly capable of constituting a defamatory imputation especially where the cause was suggested to be promiscuity or the inability of one party to maintain a stable marital relationship.  Mr Weir QC accepted that the whole of the article published on page 3 of the newspaper, including the "Diary of romance" and the extract from Hello Magazine, formed part of the words relied upon by each of the plaintiffs.

            In approaching my task pursuant to Order 82 Rule 3A, I have carefully considered all of the authorities to which I was referred as well as the detailed and helpful submissions of counsel.  In doing so, it seems to me that there is a clear distinction to be made between those cases which deal with police investigations and inquiries, such as Lewis v Daily Telegraph Limited and Mapp v News Group Newspapers Limited, and an article which concerns itself with unattributed "rumours" and "reports" and, in relation to Capital and Counties Bank v Henty I note the subsequent comments made upon that decision by Salmon LJ in Slim v Daily Telegraph [1968] 2 QB 157 when, with regard to the question of what words are capable of meaning to the ordinary layman, he went on to observe, at page 187:

 

                        "... the principles were never better formulated than they were in Capital and Counties Bank v Henty nor perhaps ever worse applied.  It was there held that the words complained of were incapable of meaning to ordinary men that the bank was in financial difficulties, yet they caused a run on the bank, whose customers, presumably, were ordinary men."

            I take into account not only the actual words complained of, but also the context and circumstances of the publication as a whole and I remind myself of the words of Lord Reid in his classic judgment in Lewis v Daily Telegraph Limited when he stated at page 259-260:

 

                        "In this case it is, I think, sufficient to put the test in this way.  Ordinary men and women have different temperaments and outlooks.  Some are unusually suspicious and some are unusually naive.  One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. ...  What the ordinary man, not avid for scandal will read into the words complained of must be a matter of impression."

            Approaching the matter on this basis, I have reached the conclusion that the words complained of, in their natural and ordinary meaning, are capable of meaning that the marriage between Liam Neeson and Natasha Richardson had come to an end.  In my view the allegation that a marriage has broken down is capable of bearing a defamatory imputation in Northern Ireland and, in all probability, also in the rest of the United Kingdom.  Furthermore, I consider that the words complained of are capable of bearing the defamatory meaning that Liam Neeson bore some degree of responsibility for the breakdown by failing to deal with the difficulties allegedly faced by Natasha Richardson.  Similarly, it seems to me that the words are capable of bearing the defamatory meaning that Natasha Richardson was also responsible in some degree for the breakdown by failing to deal with the same difficulties.  In my opinion the allegations that both plaintiffs were making false representations about the state of the marriage are also capable of bearing defamatory meanings.

            Accordingly, in the statement of claim delivered on behalf of Liam Neeson, I rule that the words complained of are capable of bearing the meanings set out at 4(i)(a)-(f), (iv), (v), (vi), (vii), (viii), (ix) and (x).  In my view the words complained of are not capable of bearing the meanings alleged at paragraph 4(ii) or (iii).

            In the statement of claim delivered on behalf of Natasha Richardson, I rule that the words complained of are capable of bearing the meanings alleged in paragraph 4(i)(a)-(f), (ii), (iii), (iv), (v) and (vi).     

The innuendo meanings

            An "innuendo" is said to exist where the defamatory meaning arises because of special facts which are known to the recipients.  As the learned authors of the 9th Edition of Gatley on Libel and Slander observe at paragraph 3.17:

 

                        "This has two principal consequences.  First, the plaintiff must plead the special meaning he contends the words have and prove that the facts upon which this meaning is based were known to at least one of the persons to whom the words were published.  Secondly, the meaning resulting from those facts gives rise to a cause of action separate from that (if any) arising from the words in their ordinary and natural meaning because it is an extended meaning not present in the words themselves."

            In any action for libel where the plaintiff alleges that the words complained of were used in a defamatory sense other than their ordinary meaning, he is obliged by virtue of Order 82 Rule 3(1) to give particulars of the facts and matters upon which he relies in support of such sense.  In Liam Neeson's case, nine paragraphs of particulars pursuant to Order 82 Rule 3(1) have been provided and the statement of claim delivered on behalf of Natasha Richardson contains seven such paragraphs.  Ms Paige QC challenged a number of the particulars furnished pursuant to Order 82 Rule 3(1). 

            In the statement of claim delivered on behalf of Liam Neeson, I rule that the only particulars capable of giving rise to true innuendo meanings are those contained in paragraphs 5(2), (3), (4) and (6).  In my opinion the words complained of are not capable of bearing the meanings alleged at paragraph 5(d), (e) (in so far as the reference to "unacceptable behaviour" is to some form of sexual promiscuity) or (h). 

            In the statement of claim delivered on behalf of Natasha Richardson, I rule that the words complained of are capable of bearing the meanings alleged at paragraph 5(a), (b), (c), (d), (e), (g) and (h).  In my view, in that statement of claim, the only particulars capable of sustaining true innuendo meanings are those contained in paragraphs 5(2), (3) and (7). 

Damages

            In addition to compensatory and aggravated damages both Liam Neeson and Natasha Richardson have claimed exemplary damages and this claim was also the subject of challenge by Ms Paige QC.  In each case Ms Paige QC argued that the particulars contained at paragraphs A and B of paragraph 6 of the statements of claim disclosed no factual basis for a claim to exemplary damages, merely relying upon unparticularised assertions, and, since the article complained of contained reports of denials of the relevant allegations, neither claim was capable of attracting an award of exemplary damages. 

            In each case, at paragraph 6 of their statements of claim the plaintiffs relied upon the following particulars in support of their claims for exemplary damages:

 

                        "(A)     The defendant falsely and maliciously published the words complained of concerning the plaintiff in a prominent position in the newspaper with a view to increasing the circulation of the newspaper and in the belief that the economic or other benefits of publishing outweighed the risk of having to pay compensation to the plaintiff.

 

                        (B)       The defendant knew or had means of knowledge that the words complained of were false and defamatory at the time they were published.  The defendant failed to take any or adequate steps to check the truth of the allegations before publication and published the article without making any attempt to verify the facts with him or afford him the opportunity to comment on the proposed publication."

            In reply to notices for further and better particulars, the plaintiffs relied upon the facts that the words were published in a prominent position in the newspaper, the publication was false, the publication was malicious, the inference that the economic or other benefits of publishing outweighed the risk of having to pay compensation to the plaintiffs, the failure to take any or adequate steps to check the truth of the allegation before publication, the failure to verify the facts with either plaintiff or to afford them the opportunity to comment upon the proposed publication and the defendant's knowledge or means of knowledge that the words complained of were false and defamatory at the time of publication.

            In the course of giving judgment in the Court of Appeal in John v MGN Limited [1997] QB 586, Sir Thomas Bingham MR, as he then was, approved the well known passage in Duncan and Neill on Defamation, 2nd Edition (1983) page 136 paragraph 18.27 as a correct summary of the relevant law in relation to exemplary damages.  The learned authors there state:

 

                        "(a)      Exemplary damages can only be awarded if the plaintiff proves that the defendant when he made the publication knew that he was committing a tort or was reckless whether his action was tortious or not, and decided to publish because the prospects of material advantage outweighed the prospects of material loss.  `What is necessary is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic, or perhaps physical, penalty.'

 

                        (b)        The mere fact that a libel is committed in the course of a business carried on for profit, for example, the business of a newspaper publisher, is not by itself sufficient to justify an award of exemplary damages."

The Master of the Rolls went on to refer to the directions given by Widgery J in Manson v Associated Newspapers Limited [1965] 1 WLR 1038 in which he instructed the jury that they had to be satisfied that the defendant had acted in a wicked and callous fashion.  At page 618/619 the Master of the Rolls said:

 

                        "Secondly, the publisher must have acted in the hope or expectation of material gain.  It is well established that a publisher need not be shown to have made any precise arithmetical calculation.  But his unlawful conduct must have been motivated by mercenary considerations, the belief that he would be better off financially if he violated the plaintiff's rights than if he did not, a mere publication of a newspaper for profit is not enough.

 

                        We do not accept, as was argued, that in seeking to establish that the conditions for awarding exemplary damages have been met the plaintiff must satisfy the criminal rather than the civil standard of proof.  But a jury should in our judgment be told that the charge is grave, so should the proof be clear.  An inference of reprehensible conduct and cynical calculation of mercenary advantage should not be lightly drawn.  In the Manson case [1965] 1 WLR 1038, 1044G, Widgery J directed the jury that they could draw inferences from proved facts if those inferences were `quite inescapable', and he repeatedly directed at page 1045 that they should not draw an inference adverse to the publisher unless they were sure that it was the only inference to be drawn."

            Subsequently, in his judgment in John v MGN Limited the Master of the Rolls went on to discuss, in a passage between pages 621 and 626, the evidential basis upon which the issue of exemplary damages had been left to the jury and the directions given by the learned trial judge in relation thereto.  Taking this passage into account, together with the context and circumstances of the entire article and the meanings which I have held that it is capable of bearing, I would not, at this stage, be prepared to accede to Ms Paige QC's submission that I should strike out the claim for exemplary damages. 

            I also bear in mind the discussion which took place during the course of the hearing of these applications about the article published by the Belfast Telegraph on the evening of 19 September 1998.  Mr Weir QC indicated that it might be necessary to give consideration to this article in relation to the claim for exemplary damages and it is not too difficult to conceive of how a comparison between the presentation, context and content of the two articles might be placed before the jury as evidence from which they could infer that the words complained of were published in circumstances which would warrant an award of exemplary damages.

The Malicious Falsehood claims

            In each case the statements of claim include, at paragraphs 7 and 8, claims for Malicious Falsehood.  Ms Paige QC submitted that, in such claims, the starting point was the same as in a libel action, referring, by way of example to Vodaphone Group PLC v Orange Personal Communication Services Limited [1997] FSR 34, and submitted that, as a matter of law, the words were not capable of the meanings upon which the allegations of falsity were founded.  She also argued, as she had done in relation to exemplary damages, that the statements of claim, as supplemented by the replies to particulars, disclosed no case of malice fit to be left to a jury relying, inter alia, upon the decision in Telnikoff v Matusevith [1991] 1 QB 102.

            For the reasons that I have given earlier in relation to the causes of action founded upon libel, I am not prepared to accede to these submissions.  Again, it seems to me that once the pleadings have been reconstituted, as inevitably will be necessary in the light of these applications, the juxtaposition of the article of 19 September 1998 with the article complained of may well constitute prima facie evidence of malice.

The claim for interest

            Mr Weir QC conceded that Ms Paige QC's submission that interest is only recoverable on financial loss pleaded as special damage was well founded and, since no such claim has been made by either plaintiff, the claims for interest in both statements of claim will be struck out.

The defendant's request for Further and Better Particulars

            The defendant also seeks orders requiring the plaintiffs to furnish the Further and Better Particulars sought at paragraphs 2, 3, 8, 11 and 12 of the Notice for Further and Better Particulars dated 24 November 1998 served in relation to Liam Neeson's statement of claim and in paragraphs 1, 2, 7, 10 and 11 of the Notice for Further and Better Particulars of the same date served in relation to Natasha Richardson's statement of claim.  During the course of argument, Mr Weir QC indicated that, depending upon the outcome of these applications, he would be prepared to give further consideration to the particulars sought by the defendant and, accordingly, I do not propose to rule upon this part of the summons at this stage. 

            In the circumstances, I shall restrict myself to the observation that, prima facie, some of the defendant's requests appear to be well founded and that, in particular, the decision of the Court of Appeal in Fullam v Newcastle Chronicle and Journal Limited [1977] 1 WLR 651 is authority for the proposition that, in appropriate cases, a defendant is entitled to particulars of the person or persons with special knowledge to whom an innuendo meaning would have been apparent.

Payment into court

            In Fullam v Newcastle Chronicle and Journal Limited Scarman LJ, as he then was, observed, at page 659:

                        "Justice requires in this case that the plaintiff should fully particularise the publication relied on so that the defendants may understand the nature of the case they have to meet: especially whether it is one which, if successful, would be likely to result in an award of substantial or trivial damages.  The defendants are entitled to know so that they may decide whether to defend or settle, whether to pay into court and, if so, how much and generally what course they ought to follow."

            Accordingly, I propose to give leave to the defendant, if so advised, to pay money into court within 14 days of the determination of this summons or service of replies to the Notice for Further and Better Particulars whichever may be the later.

Consolidation

            I do not propose to make a formal order consolidating these actions pursuant to Order 4 Rule 5(1) of the Rules of the Supreme Court (Northern Ireland) 1980 since I was informed during the course of the hearing that the parties are in agreement that both actions should be heard together upon the same date/dates before the same jury and each side appears to be content with this arrangement.

Reply

            The defendant has sought an order pursuant to Order 82 Rule 3(3) requiring the plaintiff in the claim brought by Natasha Richardson to furnish a reply to the particulars of justification pleaded in the defence.  Again, in the course of argument, Mr Weir QC indicated that the plaintiffs' advisors will deal with this aspect of the case in due course and, accordingly, I do not propose to make an order at this stage.


                   IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND

 

                                                  QUEEN'S BENCH DIVISION

 

                                                                    ------------

 

BETWEEN:

                                                                          

                                LIAM NEESON AND NATASHA RICHARDSON

                                                                                                                                                      

                                                                                                                                      Plaintiffs;

 

                                                                        and

 

                               BELFAST TELEGRAPH NEWSPAPERS LIMITED

 

                                                                                                                                   Defendant.

 

                                                                    ------------

 

                                                                JUDGMENT

 

                                                                         OF

 

                                                                 COGHLIN J

 

                                                                    ------------