First published on the Brett Wilson Media Law Blog on 26 September 2016
The Claimant is a Premier League footballer and his claim concerns an article published in the Daily Mirror on 16 November 2012. The article was a story about the Claimant’s relationships with his long-term partner Stephanie Ward, and the celebrity former X-Factor judge, Tulisa Contostavlos, with whom the Claimant had a relationship between November 2012 and May 2013.
First instance decision
There was a preliminary issue hearing on 19 January 2015 (Simpson v MGN Ltd  EWHC 77 (QB)), at which Warby J decided the meaning of the words complained of as follows:
“By entering a romantic relationship with the celebrity Tulisa Contostavlos the claimant was unfaithful to his loyal partner Stephanie Ward, with whom he was in a long-term and committed relationship, living with their daughter as a family; he did so despite Ms Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child; and by doing so he callously destroyed his relationship with Ms Ward and broke up an established family unit which was soon to be joined by the child they were expecting.”
The Defendant pleaded justification (what is now called ‘truth’, but the case was brought before the Defamation Act 2013 came into force). At the hearing, Warby J considered the Claimant’s application to strike out the defence of justification. Warby J concluded that the particulars of justification should be struck out on the basis that the Defendant did not seek to justify two specific meanings of the article (namely the assertion that the Claimant and Ms Ward were a committed family unit living together, and that Ms Ward had given up her legal career to have children with the Claimant) which both added to the defamatory sting of the article (i.e. the gist or substance of the words complained of).
The Defendant appealed the decision to strike out (but not the finding on meaning) on the basis that these two facts did not mean that the Defendant could not or would not prove the whole of the libel’s defamatory sting, and that in any event those matters should be determined by the Judge at trial having heard witness evidence.
The Court of Appeal (Simpson v Mirror Group Newspapers Ltd  EWCA Civ 772) found that despite the initial finding on the meaning of the article, it was still open to the Defendant to raise arguments as to the intensity of the libel’s sting. The Court acknowledged that in some instances the meaning of the words and their defamatory sting would go together, but this would not always be the case.
The court concluded that if it accepted that the particulars of justification should be struck out, then it would be accepting that no reasonable fact-finder could conclude that those particulars would prove the truth of the words complained of in the meaning found by the Judge. It went on to say that issues relating to co-habitation and Ms Ward’s legal career are matters over which reasonable people might disagree and it therefore must be dealt with by the Judge at trial having heard the witness evidence.
The Court of Appeal decision has perhaps muddied the waters a little as it has previously been rare for the meaning and sting of a defamatory statement to not “go together.” The effect of the decision is likely to be that claimants will be more reluctant to make an early application for strike-out of a defence on the basis that the full nature of the defamatory sting may not be established until trial, thus making preliminary hearings less likely.
The Claimant has applied for permission to appeal to the Supreme Court.