The Daily Telegraph has won a stage in its libel battle with former Labour MP Frank Cook when a judge decided that some of the statements over which he is suing were clearly comment and gave the newspaper summary judgment on them.
But other issues on meaning and defences could not be decided at this stage, said Mr Justice Tugendhat, who also refused an application by Mr Cook for trial by jury.
Cook, who was Labour MP for Stockton North from 1983 until May 2010, is suing Telegraph Media Group over three articles which appeared in the Sunday Telegraph on May 31, 2009, and reported that he had tried to reclaim on his parliamentary expenses a £5 offertory donation made on his behalf by an assistant at a Battle of Britain church service in Stockton.
The articles were news stories on pages one and two, and a leader.
Cook claims that the news stories mean that he represented low “value-for-money” as a parliamentarian, and that his claim for the £5 was “an extraordinary abuse of MPs’ expenses and was particularly embarrassing and hypocritical having regard to his official support of the campaign to commemorate a Battle of Britain hero”.
The leader, he says, means that he thought it appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity, and that he set out to exploit the expenses system for his own gain in disregard of his constituents’ views.
He says that he made the expenses claim for the £5, but that he did so by mistake
Telegraph Media Group, which pleads justification, honest comment, and the Reynolds defence of responsible journalism on a matter of public interest, applied for summary judgment, arguing that Cook had no real chance of rebutting its three defences.
But at the same hearing Cook applied for the case to be dealt with by jury trial.
Mr Justice Tugendhat rejected the jury trial application and ordered trial by judge alone, saying: “In the present case the relevant factors all tend to favour a trial by judge alone.
“Although the expenses scandal, as it is known, is certainly a matter of great national interest, the particular incident of Mr Cook’s claim to be reimbursed the sum of £5 (important as it is to Mr Cook) can hardly be said to be a question of national interest. Rather the contrary.
“The expenses scandal is also a topic on which ‘the passions of the multitude have been inflamed’, although I note that it is Mr Cook who is asking for a jury. Further, Mr Cook is no longer an MP, and is not now a prominent figure in public life.
“There is an issue as to the propriety of his conduct and as to his credibility, but there is not an issue as to his integrity, in the sense that it is not alleged that he acted dishonestly.”
The disadvantages of trial with a jury in cases where the law was complicated had increased in recent years, with the increasing complexity of the law of defamation, due in part to the continuing need to develop the law to bring it into harmony with the European Convention on Human Rights.
“Where there is uncertainty as to the law, as there so often is today, a judge can formulate his reasons on alternative bases, and the Court of Appeal can substitute one disposal for another, according to the correct view of the law. It is less likely to be necessary to order a retrial, as may be inevitable if a jury has been misdirected as to the law,” the judge said.
There were also great case management advantages in trial by judge alone.
Issues could be tried in a convenient order – the judge could rule on meaning in advance of a trial, and before much of the costs associated with a full trial were.
Such rulings might show that there was no defence to a claim, or might show that a claimant might have no real prospect of defeating the defence.
There was, said Mr Justice Tugendhat, “no reason to exercise my discretion in this case to order this action to be tried with a jury, and every reason to order trial by judge alone”.
He gave Telegraph Media Group summary judgment on two issues raised in Mr Cook’s claim, saying that they were all comment, and that no properly directed jury could find otherwise.
These were that Cook “represented low ‘value-for-money’ as a parliamentarian”, and that his claim for £5 “… was particularly embarrassing … having regard to his official support of the campaign to commemorate a Battle of Britain hero”.
But he refused to give summary judgment on other issues, saying that they were arguably comment or statements or fact, or that it could not be said that Cook had no real prospect of defeating the defences.
Mr Justice Tugendhat held that the meanings claimed by Cook which were arguably comment or statements of fact, were that he “thought it appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity”, that he set out to exploit the expenses system for his own gain in disregard of his constituents’ views, and that his claim for £5 “was an extraordinary abuse of MPs’ expenses and was … hypocritical having regard to his official support of the campaign to commemorate a Battle of Britain hero”.
In his judgment it was not arguable that the omission of two matters – that Cook had told the newspaper before publication that his membership of the Speaker’s Panel meant he was not allowed to vote on Bills which he had chaired at any stage, and by omitting to report this the newspaper gave readers a false impression of his voting record; and had also said he did not consider it appropriate to claim the £5 – was capable of leading to the conclusion that the facts were not truly stated, if the meanings which he had held to be capable of being comment were held to be comment.
It was also not possible to say that Cook has no real prospect of persuading a jury that the journalist had believed what Cook had said on the telephone, therefore had not believed that Cook ever thought it appropriate to claim the £5 back from taxpayers, and so the defence of comment could fail on this point.
The judge said that if the meaning of the words complained of was that Cook set out to exploit the expenses system for his own gain in disregard of his constituents’ views, he could not say that Cook had no real prospect of succeeding in defeating the defence of justification on this point.
Finally, the Reynolds defence could fail on the facts, if the publication included a meaning which the journalist did not believe to be true.