IN THE COURT OF APPEAL (CIVIL DIVISION) Appeal Court Ref: 2013/3675 ON APPEAL FROM. - and - DEFENDANT S SKELETON ARGUMENT FOR PERMISSION TO APPEAL

Transcription

1 IN THE COURT OF APPEAL (CIVIL DIVISION) Appeal Court Ref: 2013/3675 ON APPEAL FROM THE HIGH COURT OF JUSTICE Claim No. HQ13D02853 QUEEN S BENCH DIVISION B E T W E E N: RICHARD RUFUS Claimant/Respondent - and - PAUL ELLIOTT Defendant/Appellant DEFENDANT S SKELETON ARGUMENT FOR PERMISSION TO APPEAL References in this skeleton to tab numbers are to those in the court bundle [tab number/page(s)] Summary 1. This should be a straightforward case. Put shortly, in modern day Britain there is no basis on which right-thinking members of society generally could think substantially the worse of C for having made public a text message in which he was called a nigger by D, a trustee of a publicly funded anti-racism organisation that has zero tolerance towards the use of such language. 2. The case has become over-complicated by the Judge s reliance on a series of old cases relating to police informers. From these the Judge derived two principles to justify his finding that the words were capable of being defamatory of C on the basis of disloyalty. The second principle is that unless the person is reporting a crime, it may be defamatory to say of a person that they have acted disloyally, even if the person was acting lawfully in carrying out the disloyal activity. 1 The Judge drew a distinction between reporting wrongdoing to the relevant authorities and making it public. 2 There is no previous decision, of which we are aware, in which an allegation has been found to be capable of being defamatory on the basis of disloyalty in the absence of a breach of an obligation recognised by law or a previous inconsistent representation. The Judge s approach gives rise to important issues of principle in relation to the extent to which an imputation 1 At [28] at 3/32 2 At [32] at 3/33 1

2 of the lawful exercise of a fundamental human right can be regarded as defamatory and the attributes and values of the notional right-thinking member of society in modern-day Britain. The claim 3. The words complained of were published on the website of Kick It Out ( KIO ). 3 It is an anti-racism campaign group supported by the FA and partly publicly funded. It seeks to eradicate racism in football. A significant element of its work relates to racist abuse, in respect of which it has a policy of zero tolerance. The ordinary reader of its website will be aware of these matters, insofar as they are not generally known. The publication complained of is a statement made on D s resignation as a trustee on 23 February 2013 ( the Statement ), part of which comprises words attributed to him. The material words are: Today Paul Elliott CBE has resigned from his position as a Kick It Out trustee. He has released the following statement to clarify this decision: Earlier this week, a former friend and business colleague, made public a SMS text message I sent him, in which I used a term which is widely known as being derogatory to my own community. I regret using it; it is inappropriate and not part of my everyday vocabulary. As an advocate of high-standards of public behaviour, and integrity in public life, I know the use of this word sends out mixed messages and contradicts my position as a Kick It Out trustee. 4. In determining the meaning of the Statement C relies on an article published in The Sun on 18 February, which names him as the recipient of the text message. 4 In contrast to the Statement, the article discloses extracts from the message and that it was sent in a business context: Ur a stupid man nigger.you dog. Ur history my friend.this will follow you scumbag. While C needs to rely on the Sun article to identify him, the disclosure of the abusive wording used does not assist his case in advancing a defamatory meaning based on disloyalty. 5. It is important to keep in mind that the determination of whether the Statement is capable of being defamatory must be based solely on the content of the Statement, in the context of the KIO website and the Sun article, viewed from the perspective of right-thinking members of society generally. The subsequent publications pleaded in POC [13] are not sued on as independent torts. They are relied on solely in support of C s claim for 3 7/ The Sun article is set out in the Particulars of Claim at [5] at 9/

3 damages. They are therefore irrelevant to the determination of defamatory meaning, as the Judge correctly recognised. 6. It is, nevertheless, necessary for the Court to be aware of the dispute between C and D in greater detail. It is relevant to the case management considerations arising on the application for permission to appeal. It is also relevant to C s attempt to rely on the subsequent publications and reader comments in support of his case on meaning. The background 5 7. Following his retirement from football, C set up in business as an investment adviser. C persuaded D to place around 575,000 with him for investment, of which 140,000 came from a longstanding friend of D s. It was a substantial amount of money for D. In or around February 2011 the Financial Services Authority ( FSA ) froze C s bank accounts. 8. C informed D that it was necessary for D to provide him with a Deed of Release in relation to the sums invested because this would lead to the FSA unfreezing the accounts. He said that the investment was safe and this would enable him to recover it for D. C provided a letter dated 13 July 2011 stating his intent to make good the monies within 12 to 24 months 6 and D executed the deed 7 on or around the same date. C must have known that the representations that he made to procure the Deed of Release were false. None of the investment has been returned to D and there appears to be no prospect of any return. A considerable number of other investors are in a similar position. 9. C s misconduct has generated some controversy. The website (which has nothing to do with D) appears to be operating without challenge from C. C has informed D that he accepted a lifetime ban on trading by the Financial Conduct Authority and is being investigated by them in relation to breaches of the Financial Services and Markets Act In the circumstances, the description in the Sun article of a business venture that went wrong is not an accurate summary of what transpired. But that is all the ordinary reader 5 This is outlined in the Appellant s Application Notice of 18 November 2013, signed with a Statement of Truth; see 13/ At 13/74 7 At 13/

4 is told about it. It is entirely neutral. Similarly, the Statement merely refers to a former friend and business colleague. 8 C s financial position 11. At the time the proceedings were commenced C was subject to an IVA. C s solicitors are acting on a conditional fee agreement. Prior to the hearing attempts were made by D s solicitors to ascertain C s financial position and whether there was any prospect of him being in a position to meet D s costs in the event that his claim failed. 9 No satisfactory response was received. C was aware that a bankruptcy petition had been issued on 25 June and was listed to be heard on 22 October, the day before the hearing. Only after the hearing, following further enquiry by D s solicitors, did it emerge that C had been made bankrupt on the 22nd. 10 There appears to be no prospect of D recovering any costs from C or C s wife who is said to be funding counsel s fees. In contrast if C wins, his solicitor intends to seek his fees and an uplift from D, notwithstanding the bankruptcy. Appeals in relation to determinations under PD PD provides:- At any time the court may decide (1) whether a statement complained of is capable of having any meaning attributed to it in a statement of case; (2) whether the statement is capable of being defamatory of the claimant; (3) whether the statement is capable of bearing any other meaning defamatory of the claimant. 13. Sub-paragraph (1) will be described as a meaning ruling and sub-paragraph (2) as a defamation ruling. In Ecclestone v Telegraph Media Group [2009] EWHC 2779 (QB) Sharp J (as she then was) accepted the defendant s submission that there was a difference between the two: a determination on meaning does not involve any value judgment, but a generous construction of the relevant words as against the pleaded meanings. In contrast, an application to determine whether words are capable of being defamatory does involve a value judgment, because the decision of the judge implicitly says something about the attributes and values of right-thinking members of society generally See the Particulars of Claim at [5] at 9/45 9 See letters from DPSA on 18 and 22 October 2013 at 15/124 and 15/ See letter from Simon Smith at 15/ At [10] 4

5 14. A meaning ruling is a matter of impression. The principles of construction are wellestablished and the decisions rarely give rise to issues of principle. In contrast, a defamation ruling is one of analysis. It is more likely to give rise to issues of principle. In particular, a finding that the imputed conduct is capable of being defamatory amounts to an acceptance that it could legitimately be stigmatised. 15. A claimant can sometimes blur the distinction by pleading that the defendant has accused him of a particular act which is dishonourable. If there is no dispute about whether the relevant words impute the act, the question of whether it is dishonourable is a defamation ruling, not a meaning ruling. This is the position in the present case. The act imputed to C is clear: making public the text message. The Judge accepted that there was no dispute about this. 12 The issue is whether right-thinking members of society generally would consider this to be culpably disloyal on the basis of the information in the Statement and the Sun article. 16. There is authority to the effect that the Court of Appeal discourages appeals in relation to meaning rulings. The reason for this, as explained by Sedley LJ in Berezovsky v Forbes Inc [2001] EMLR 45, is the impressionistic nature of the exercise. "16. The real question in the present case is how the courts ought to go about ascertaining the range of legitimate meanings. Eady J regarded it as a matter of impression. That is all right, it seems to us, provided that the impression is not of what the words mean but of what a jury could sensibly think they meant. Such an exercise is an exercise in generosity, not in parsimony. It is why, once fairly performed, it will not be second-guessed on appeal by this court: the long stop is the jury. 17. However, even on inclusive meaning rulings the Court has given permission to appeal and allowed appeals. 13 The fundamental point is that the test for permission to appeal is simply whether the proposed appeal has a real prospect of success. It is well established that burdening a defendant with a defamation claim is a serious interference with the Article 10 right The present case is a defamation ruling that raises issues of principle. The Judge accepted that the judgment considered some issues of law. 15 This is apparent from the 12 At [29] at 3/32 13 See for example Burstein v Associated Newspapers Ltd [2007] 4 All ER 319; Patterson v ICN Photonics [2003] EWCA Civ See for example Thornton v Telegraph Media Group [2011] 1 WLR 1985 at [61] [63]. 15 See Reasons for refusing Permission to Appeal at [2] at 5/36 5

6 legal principles stated by the Judge. The distinction that he drew from them between disclosure to the authorities and to the public was fundamental to the decision to allow the claim to proceed. The Judge did not rule that D s case in relation to the issues of law did not have a real prospect of success. He merely relied on the reluctance to reverse inclusive meanings. But the main reason for the reluctance is that meaning rulings do not generally raise any issues of law. 19. In addition, there are strong and unique case management reasons for permission being granted: C has recently stated that he will not object to the Court of Appeal determining whether the words are, in fact, defamatory As the Judge observed on the permission application, there are considerable case management benefits to such an approach and it was regrettable that C had previously objected to the Judge determining it. The Judge stressed that he had merely determined whether the words were capable of being defamatory, not whether he thought that they were The practice of early judicial determination of meaning and defamation is becoming increasingly commonplace. It has obvious benefits, as was recognised by Tugendhat J in McAlpine v Bercow [2013] EWHC 981 (QB). 17 However, until the Defamation Act 2013 comes into force on 1 January 2014, 18 one party can thwart it by relying on the right to jury trial. The consequence is that the court can only determine capability, even though the hearing is virtually identical The Judge correctly recognised that, in the light of C s belated volte-face, it must be left to the Court of Appeal to decide whether to determine actual as opposed to capable defamation. 19 D submits that all the case management considerations favour such a determination. If the words are not defamatory, it is the end of the case. There is no benefit in the parties tilting at windmills until trial. 16 See letter from Simon Smith at 15/154 and Reasons for refusing Permission to Appeal at [5] at 5/36 17 At [26] 18 It does not apply to claims arising prior to the Act coming into force. 19 See Reasons for refusing Permission to Appeal at [5] at 5/36 6

7 While D does not resile from the substantive merits of his appeal in relation to capability, he submits that the possibility of a determination of actual defamation constitutes some other compelling reason why the appeal should be heard The means of the parties are very different from the traditional case of a commercial publisher sued by a claimant of means. C is a bankrupt represented on a CFA who has already lost over 400,000 of D s money. In the circumstances, it is cold comfort to say to D that he can argue his case at trial, when there is a quick and easy way of ending it before service of the Defence. In O Dwyer v ITV plc [2012] EWHC 3321 (QB) Tugendhat J noted the unenviable position of a defendant facing the ransom factor of an impecunious CFA claimant. He concluded that: the potential injustice to a defendant in the position of ITV is such that the court must exercise its powers of case management in the light of the overriding objective with great care. If a case cannot succeed, the sooner that is decided the better for everyone. 20 Such a concern is even greater where, in contrast to O Dwyer, the defendant is an individual If a jury is directed on the basis of the Judge s approach to the informer cases which is, at least, arguably wrong in principle it will lead to an appeal after the trial. By that stage there will have been substantial unnecessary costs, use of court resources and jury time. Right-thinking members of society generally 20. The leading recent authority on the definition of defamatory is Thornton v Telegraph Media Group [2011] 1 WLR Tugendhat J conducted a detailed review of the authorities in the light of the Human Rights Act He found that any definition of defamatory must include a threshold of seriousness in order to provide proper protection to freedom of expression. 21 He emphasised the need for sufficient consensus that the conduct was blameworthy and that the opinion of the defendant, even if expressed in the words complained of, was irrelevant At [65] 21 At [90] 22 At [98] 7

8 21. The context was an application under PD for a determination that an allegation of granting copy approval was not capable of being defamatory. The Judge recognised the important role that such applications play in protecting freedom of expression The allegation in Thornton was granting copy approval to interviewees, a practice of which both the claimant and the defendant disapproved. The Judge noted that the conduct was not unlawful and that the claimant was not relying on any previous inconsistent representation by her, such as would give rise to a hypocrisy or disloyalty meaning. In those circumstances, it was not capable of being regarded as blameworthy by right-thinking members of society generally and could not therefore be regarded as a personal libel It is apparent from Thornton and the cases cited within it that each element of the definition of defamatory acts as a hurdle that a claimant must surmount: Right thinking The reasoning leading to a finding of defamatory must reflect the arbitrium boni, the literal translation of which is good judgment. This is an ethical benchmark that may be different to widely held public opinion. It has always been closely linked to standards set by law Generally There must be a societal consensus in relation to the reasoning. This does not merely exclude people with opinions that do not correspond to the norm. It acknowledges that different people could have different views of particular conduct and that in the absence of consensus that it is blameworthy it is not defamatory Think substantially the worse of A right-thinking member of society does not think substantially the worse of a person merely for having acted in a different way from the way in which he or she would have acted or even for making a wrong judgment call. For it to be a personal libel, the act imputed to the claimant must involve moral blame or culpability. 24. There are a number of overlapping features of modern society that are relevant to these hurdles. Firstly, there is greater diversity and, in consequence, less consensus. Secondly, there is greater tolerance for the diversity. Thirdly, the civil and criminal law cover a far wider field. 23 At [61] [63] 24 The Defendant s submissions summarised at [21] were accepted by the Judge at [98] [99] 8

9 25. These factors militate in favour of the determination of whether an allegation is defamatory being linked as closely as is possible to whether it is unlawful. Such an approach gives rise to greater certainty. Different people have different moral values. It is desirable, so far as is possible, to minimise any subjective element on the part of the tribunal tasked with determining whether an allegation is defamatory. As previously stated, such determinations are increasingly being made by single judges and this will become routine when the Defamation Act 2013 comes into force. 26. D accepts that there cannot be a perfect correlation between what is defamatory and what is unlawful. But where a) the law has chosen to set standards of conduct on the basis of certain values b) one of those values forms the basis of the allegedly defamatory meaning and c) the imputed act involves the exercise of a basic human right, it is difficult to see on what basis a plainly lawful exercise of that right can be considered to be defamatory. The law of misuse of private information and loyalty is a paradigm example. The arbitrium boni and the making public of information 27. The following propositions are founded in law and reflect or are deemed to reflect the arbitrium boni 25 : Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual s self-fulfilment. By categorising this basic and fundamental right as a constitutional right its higher normative force is emphasised The media plays an essential role in a democratic society. It is a public watchdog. It has a duty to impart information and ideas on all matters of public interest and the public has a right to receive such information A person holding public office (which includes D) inevitably and knowingly lays himself open to close scrutiny of his every word and deed by the media and the public at large insofar as it touches on his fitness for office. Such conduct is a matter of legitimate public interest More generally, freedom to criticise (within the limits of the law) the conduct of other members of society as being socially harmful, or wrong is one of the most valuable freedoms. 25 There is a raft of domestic and European authorities to support these propositions that can be provided if necessary. 9

10 27.5. Protection of journalistic sources is one of the basic conditions for press freedom. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital publicwatchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information will be adversely affected The use of racist language is to be strongly stigmatised. 28. In the present case the following matters were stated explicitly or implicitly in the Statement and Sun article and reflect the arbitrium boni. Alternatively, there is no basis for contending that right-thinking members of society generally would take issue with them: The use of the term nigger by D as an insult to C in a communication relating to a failed business venture was inappropriate The term is derogatory to the black community D is an advocate of high standards of public behaviour and a trustee of an anti-racism organisation that has zero tolerance to the use of such language. The use of such a term contradicts his position as a trustee. 29. With these factors in mind, it may be helpful to state the obvious: the publication attributed to C was clearly lawful. The test of a reasonable expectation of privacy includes the specific factors relied on by the Judge in relation to disloyalty: the relationship between the parties (former friends and business colleagues), the fact that it was a SMS message and the potential harm to D from its disclosure But there can be no reasonable expectation of privacy in relation to the use of a racist term in an abusive text message by the trustee of an anti-racist organisation that has a zero-tolerance policy to such language, and there is an obvious public interest in its disclosure. The making public of the text message was an exercise of C s fundamental right to freedom of expression, one of the basic conditions for society s progress and for each individual s self-fulfilment. The media has a duty to inform the public of such information and the public has a right to receive it. This process cannot function without individuals with knowledge of the public interest information making it public either directly or via the media. Such conduct should not be stigmatised with a finding that it is capable of being 26 The Judge placed reliance on it being a SMS text message. But this, of itself, does not give rise to any reasonable expectation of privacy. It all depends on the nature of the information. See for example Abbey v Gilligan & Ors [2013] EMLR 12 at [31] to [39].

11 defamatory. Adopting the words of Greene LJ in Byrne v Deane [1937] 1 K.B. 818 CA 27 with the substitution of suppression of crime : there is nothing dishonourable in setting in motion the constitutional machinery provided in this country for [freedom of expression on matters of legitimate public interest]. 30. Applying the taxonomy of the arbitrium boni, there is no rational space for any residual moral obligation on C not to make public the text message. If there is no breach of an obligation, legal or moral, there is no rational basis on which it could be concluded that C was disloyal or otherwise culpable. Errors of principle by the Judge 31. The errors are set out in some detail in the Notice of Appeal and only necessary supplemental points will be addressed below. The informer cases 32. The Judge appeared to treat the informer cases as an exceptional category. In [17] he appears to suggest that an allegation could be defamatory but the law would, on policy grounds, not recognise the claim: It is true that it can be galling to be wrongly called an informer or snitch, but that is a different matter from whether the right-thinking member of society would think any less of the alleged informer, and whether the law of libel would provide a remedy [emphasis added]. We are unaware of such a principle. 33. Byrne is the only informer case that contains any detailed reasoning. On proper analysis, it is apparent that it is simply an illustration of the general principle that what matters is the act imputed to the claimant through the perspective of the arbitrium boni, not how it is described by the defendant. 28 This appears most clearly from the judgment of Greene LJ at 839, which was cited by the Judge at [23]: If the allegation that he reported the matter to the police is not defamatory, in my judgment the allegation that in reporting the matter to the police he was guilty of disloyalty cannot be defamatory. 34. Byrne is not merely about ruling out the opinions of the criminal section of society, as appears to be suggested by the Judge at [28]. The members of Seaford Head Golf Club would not fall into such a category but seemingly took against the plaintiff in the belief 27 At See Thornton at [98] and Botham v Khan, Times, July 15, 1996, at 4 for an illustration of how the principle can work the other way round. 11

12 that he was the informer. It is implicit in Byrne that the concept of the right-thinking member of society sets an ethical benchmark that determines what is defamatory. The consequence is that an act that may be viewed with disfavour by large numbers of people will not be capable of being defamatory because their reasoning is contrary to what is recognised to be good. The law of defamation has never provided a remedy in all circumstances where a false allegation could cause harm to a claimant. Parliament has now set the bar higher by incorporating serious harm into the definition of defamatory in section 1 of the 2013 Act. And there are now remedies other than defamation in relation to a false allegation that were not available when Byrne was decided A more recent illustration of the ethical benchmark approach is the South African case of Sokhulu v New Africa Publications Ltd & Ors 2001 (4) SA 1357(W). Goldstein J concluded that the right-thinking person I must postulate is someone who subscribes to the norms and values of the Constitution which must, of course, inform all of the law. 30 The Constitution seeks to create an environment in which a person who is not married ought to be disadvantaged for that reason. There ought, therefore to be no stigma attached to extra-marital relationships. 31 An allegation that a woman had given birth out of wedlock could not therefore be defamatory. 36. There is no reason, in principle, to treat a disclosure to the authorities differently from the making public of truthful legitimate public interest information. 37. In terms of loyalty and adverse consequences to the wrongdoer, there should be no difference between the two. The proper reaction of those who are responsible for taking action over the wrongdoing should not be determined by whether it has or might be made public. 38. In terms of legal principle, D accepts that Byrne merely holds that an allegation of reporting crime to the police is not capable of being defamatory. There was no need for the Court of Appeal to consider the disclosure of wrongdoing to the public (which could lead to the police or other bodies, such as an employer, taking action). But equally, there is nothing in the judgment to support such a distinction. 29 The PCC Code of Conduct and Ofcom Code provide for the correction of inaccuracies. There are also remedies under the Data Protection Act Malicious falsehood remains available in cases of actual or financial loss. The failure to correct an error, once pointed out, would be evidence of malice in relation to a continuing online publication. 30 At [7] 31 At [6] 12

13 39. To applaud one and stigmatise the other would be inconsistent with the principles referred to in [27] above, including the vital role played by the press as the public s watchdog. In this context, the observations of Ouseley J in Theakston v MGN [2002] EMLR 22 at [69] are apposite: It is insufficient in my judgment to overcome this point for Mr Tugendhat to say that the newspaper could take its information to the BBC [the claimant s employer]. The free press is not confined to the role of a confidential police force; it is entitled to communicate directly with the public for the public to reach its own conclusion. Indeed the more that Mr Tugendhat emphasised the potential degree of damage to the claimant s employment from the publication of the article the more it seemed to me that he was emphasising the public interest in its publication. 40. In any event, the phrase nobody likes a snitch does not reflect the values of a modern transparent democracy. It is certainly inappropriate where it is applied to the victim of conduct by a holder of public office which is inconsistent with the office. 41. The Judge relied on Myroft v Sleight (1921) 90 L.J.K.B. 883 for the proposition that, absent the reporting of crime exception, lawful conduct could nevertheless form the basis of a defamatory allegation of disloyalty. But this ignores the particular context in Myroft. The plaintiff was a trade union member who had voted for and publicly supported a strike and then attended the owner s office looking for work. This enabled McCardie J to ground the finding of defamatory in universal values: all men, whatever their political or economic opinions, would deprecate bad faith and secret treachery in any post or status. 32 The conduct imputed to the plaintiff amounted to a charge of trickery or of underhand disloyalty or of hypocrisy. 33 Notably, McCardie J made clear that it would not be defamatory to say that a union member had acted against the wishes of the union or openly continued at work despite the orders of his union, notwithstanding that he would be under a duty of loyalty to his union and other members. 34 It was the plaintiff s apparent personal commitment to the strike that rendered the allegation defamatory. 42. In Thornton, Tugendhat J restated the need for a previous inconsistent representation to found a defamatory meaning of disloyalty or hypocrisy in relation to lawful conduct 35. There was no such representation in relation to copy approval in Thornton. There is nothing in the present case to suggest that in making public the text message C would have been acting expressly or implicitly contrary to any moral code or commitment which he had professed to honour. 32 At At At At [44] and [98]. 13

14 Flawed reasoning 43. In order for lawful conduct to be stigmatised as defamatory, there must at least be a process of rational thinking leading to such a conclusion. The starting point in the present case is that the Statement was overwhelmingly about D s resignation, not the reason for C s decision to make public the text message, which was only mentioned as the context. The reader had no reason to analyse C s decision let alone any basis for condemning him for making it. Insofar as information is provided to the reader it affords an unpromising basis for placing an obligation of loyalty on C to D. The text was sent in a business context and its abusive wording, as reproduced in the Sun article, suggests intent on D s part to cause harm to C. 44. The closest that the Judge came to an analysis was at [31] by identifying two connected facts of life said to be familiar to right-thinking members of society: (a) the ordinary weaknesses and failings of mankind; (b) that in private communications between former friends, even the most well-intentioned and hard-working people (such as Mr Elliott), might say things which should never be said. 36 He then observed that D s resignation was the inevitable consequence of the text message being made public. 45. Disloyalty was not a meaning explicitly complained of in the POC. When it was raised by the Judge, it was submitted on behalf of D that in order for there to be disloyalty there had to be a recognisable obligation on C s part not to make public the text message and on a capability ruling there had to be an identifiable and rational basis for its potential imposition. This appeared to be accepted by the Judge. Despite this, there is an illogical jump from the two facts of life to the potential finding of disloyalty. The issue in relation to defamation is not whether the text message was or was not a resignation matter for D. It is not even whether the decision to make it public was a good judgment call. It is whether C had an obligation of loyalty to D to keep quiet. 46. The potential adverse consequences for a person who acts in a manner inconsistent with his public office cannot rationally give rise to an obligation of silence on the victim. The fact that the conduct may have been the product of weaknesses or have taken place in a one-to-one communication is, at best, a mitigating factor for the office holder. It can be debated publicly and he can fight his corner, if he so chooses. It provides no rational moral basis for shooting or gagging the victim. 36 At 3/32 14

15 47. The Judge s two facts of life are capable of wide application. It would appear to place a moral obligation of confidentiality on the victim of wrongdoing by an office holder in relation to conduct that would justify his resignation, provided the communication was solely with the victim and the office holder can be seen to be otherwise well-intentioned and hard-working. Such a proposition would be wholly inconsistent with the arbitrium boni for the reasons previously stated. The threshold of seriousness 48. It is clear from Thornton that the threshold of seriousness is part of the definition of defamatory and therefore amounts to an additional hurdle for a claimant to surmount at the interim stage. In stating his conclusions the Judge observed: I do not consider that this is the most serious of libels, but the words are capable of being defamatory. 37 Given that the Judge correctly raised the issue of seriousness, he ought to have specifically addressed the threshold of seriousness. 49. It is a bizarre feature of the present case that C did not make contact with KIO or any of the media outlets that reported the Statement to state his case that he did not make public the text message. The standard response to such an approach would be to remove or amend the articles. It appears that C would prefer to rely on their continued publication to maximise his claim in damages. There is no suggestion that the allegedly defamatory allegation has caused any actual harm to C. The seriousness of the allegation must now also be viewed in the context of his bankruptcy. 50. In all the circumstances, if, contrary to D s primary case, the words complained are capable of imputing culpable disloyalty to C, the Court should follow the alternative approach of Tugendhat J in Thornton and dismiss the claim now on the basis that it does not overcome the required threshold of seriousness. 38 David Price QC For the Defendant/Appellant 23 December At [33] at 3/33 38 See Thornton at [100] and [105] 15