Thornton v Telegraph Media Group Ltd, Court of Appeal - Queen's Bench Division, June 16, 2010, [2010] EWHC 1414 (QB)

Resolution Date:June 16, 2010
Issuing Organization:Queen's Bench Division
Actores:Thornton v Telegraph Media Group Ltd
 
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Case No: IHJ/10/0230

Neutral Citation Number: [2010] EWHC 1414 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 16/06/2010

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT

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Between :

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Mr Justin Rushbrooke (instructed by Taylor Hampton Solicitors LLP) for the Claimant????

Mr David Price (of David Price Solicitors & Advocates)) for the Defendant????

Hearing dates: 26 May 2010

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JudgmentMr Justice Tugendhat :

  1. The Defendant in this libel action applies for summary judgment, alternatively a ruling on meaning under CPR PD53 para 4.1, in relation to one part of the words complained of and the meaning attributed to those words by the Claimant.

  2. The action has been before the court on a number of occasions. It is the subject of a judgment of Sir Charles Gray dated 12 November 2009, Neutral Citation Number: [2009] EWHC 2863 (QB). I gratefully adopt from that judgment parts of what follows by way of background and introduction to this case. I myself gave an ex tempore judgment in the case on 22 January 2010, striking out part of a sub-paragraph containing an allegation of malice in the aggravated damages claim.

  3. This application has an unusual procedural background. It is made very late. The Application Notice was issued following the renewed application made orally on 29 March 2010 to the Court of Appeal for permission to appeal from the order of Sir Charles Gray, following the refusal of permission on paper. Sir Charles Gray had held that there was no real prospect of the defence of fair comment succeeding, because the review materially misstated a fact upon which the comment was based. There was an exchange between the bench and Mr Price during that oral application, following which that application was adjourned to give the Defendant the opportunity to make the present application.

    THE PARTIES

  4. The Claimant, Dr. Sarah Thornton, is the author of a book entitled Seven Days in the Art World (``the Book''). According to the flyleaf of the Book it consists of a series of seven fly-on-the-wall narratives based on seven different days covering events in the contemporary art world. In her Particulars of Claim she describes herself as ``an author, freelance writer and former full time academic, specialising in the sociology of culture and in ethnography''. She states that ``Apart from book sales, she currently depends for her income upon writing regularly for The Economist ...'' and other newspapers.

  5. The Defendant publishes The Daily Telegraph both in printed form and on its dedicated website.

    THE WORDS COMPLAINED OF

  6. The book review with which this action is concerned was published in the issue of The Daily Telegraph for 1 November 2008. It appeared on page 28 of the Saturday edition of the newspaper. The review remained on the Telegraph website from the beginning of November 2008 until around late March or early April 2009. The author of the review was Ms Lynn Barber, who is herself an author and journalist. She has not been joined as a Defendant in the action.

  7. Dr. Thornton complains of only part of the article, and only part of what she complains of is relevant to the application that is before me. I have italicised the part of the review which is the subject of Dr. Thornton's complaint, and with which this application is concerned. I refer to the words below the title as the first paragraph.

    ``Seven Days in the Art World by Sarah Thornton: review

    Confronted with reflexive ethnographic research on the art market, Lynn Barber isn't buying

    Sarah Thornton is a decorative Canadian with a BA in art history and a PhD in sociology and a seemingly limitless capacity to write pompous nonsense. She describes her book as a piece of ``ethnographic research'', which she defines as ``a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds''. She also claims that she practices ``reflexive ethnography'', which means that her interviewees have the right to read what she says about them and alter it. In journalism we call this ``copy approval'' and disapprove.

  8. Sir Charles Gray held at para [47] and [51] that the review significantly misdescribes or misstates what Dr Thornton says in her Book about the way she deals with interviewees.

  9. A second part of the article, of which Dr Thornton also complains, is as follows (and it was to this part of the words complained of that my judgment of 22 January was relevant). This part of the words complained of is not directly relevant to what I have to decide, but Mr Rushbrooke relies on it as part of the context. The context is relevant in deciding the meanings of which the part referred to in the preceding paragraph is capable of bearing. I refer to the following words as the second paragraph. They are the second paragraph in the text:

    ``Thornton claims her book is based on hour-long interviews with more than 250 people. I would have taken this on trust, except that my eye flicked down the list of her 250 interviewees and practically fell out of its socket when it hit the name Lynn Barber. I gave her an interview? Surely I would have noticed? I remember that she asked to talk to me, but I said I had already published an account of my experiences as a Turner Prize juror which she was welcome to quote, but I didn't want to add to.''

    DR. THORNTON'S COMPLAINT

  10. The meanings of which Dr Thornton complains in relation to this second paragraph are (6.1) that she had dishonestly claimed to have carried out an hour-long interview with Lynn Barber as part of her research for Seven Days in the Art World, when the true position was that she had not interviewed Ms Barber at all, and had in fact been refused an interview. She also complains of meaning (6.3) set out below in relation to both paragraphs.

  11. In the Defence the Defendant admits that the second paragraph bears meaning (6.1) (but not meaning (6.3)). The defence to this part of the claim is one of offer of amends, both in respect of meaning (6.1) and in respect of meaning (6.3) in so far as it is derived from meaning (6.1).

  12. The defamatory meanings attributed on behalf of Dr. Thornton to the part of the article in question before me are the second and third meanings set out in para 6 of the Particulars of Claim:

    (6.2) That [she] had given her interviewees the right to read what she proposed to say about them and alter it, a highly reprehensible practice which, in the world of journalism was known as ``copy approval''.

    (6.3) That [she] had thereby shown herself to be untrustworthy and fatally lacking in integrity and credibility as a researcher and writer.

  13. Dr. Thornton frames her claim not only in libel but also in malicious falsehood. Detailed particulars both of falsity and of malice are set out in the Particulars of Claim. Nothing, however, turns on the claim in malicious falsehood. I shall therefore say no more about it. Both compensatory and aggravated damages are claimed but nothing turns on them for present purposes.

    THE DEFENCE

  14. So far as material, the Defence includes the following:

    ``3.2 It is denied that the words relating to reflexive ethnography are defamatory of the Claimant. The reader is told that the Claimant has academic qualifications in art history and sociology and has described the Book as a ``piece of ethnographic research'' which is defined as ``a genre of writing with roots in anthropology that aims to generate holistic descriptions of social and cultural worlds''. The granting of copy approval to interviewees for the purpose of such a book does not involve any moral blame, nor would it lead a right-thinking member of society to think the worse of the Claimant. It would simply be regarded by such a person as a practice but which in a journalistic context would, in the opinion of Ms Barber, be subject to disapproval. The words do not attribute to the Claimant the lack of any necessary attribute to carry out ethnographic research and/or publish a book based on it. There is no suggestion that the Claimant seeks to conceal her modus operandi from her readers.

    5.2 It is admitted that the article bears the meaning that the Claimant's practice of reflexive ethnography is comparable to copy approval in journalism which is disapproved of by journalists...

    5.3 The meaning set out in sub-paragraph (3) is sought to be derived from the meanings in sub-paragraphs (1) and (2). It was not identified as an independent meaning in any pre-action correspondence. The Defendant will contend that, in the event that the fair comment and offer of amends defences succeed, the Claimant should not be entitled to a finding in her favour and/or damages in relation to the meaning in sub-paragraph (3). Further, it is denied that the words relating to reflexive ethnography suggest that the Claimant is lacking in trust, integrity or credibility. The article suggests that the Claimant is lacking in trust, integrity or credibility. It is denied that anything in the article suggests that the Claimant is ``fatally'' lacking in any attribute''.

    THE APPLICATION

  15. The Application is on two bases, both bases relating only to the copy approval allegation and both bases being advanced under CPR Part 24 and/or CPR Part 3.4(2)(a). The application is that summary judgement be entered in the Defendant's favour. The first basis is that Dr Thornton has no real prospect of establishing that the relevant words are defamatory of her. The second basis is that the court should first make a determination pursuant to CPR PD53 4.1(2) that the relevant words are not capable of being defamatory of the Claimant and/or not capable of bearing any meaning to the effect that the Claimant has been guilty of ``highly reprehensible'' conduct, that she is...

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