Cooke v MGN Ltd

The First Claimant, Ms Cooke, was the Chief Executive of the Second Claimant, Midland Heart Ltd, which was a housing association. In January 2014 the Sunday Mirror published an article entitled “Millionaire Tory cashes in on TV Benefits Street”. The street referred to was that featured in the Channel 4 programme “Benefits Street” and much of the article related to properties owned by a Mr Nishal, who was not a party to the case, but whose properties were said to be in a poor state of repair, suffering from damp and other problems. One paragraph related to the Claimants.

The Deputy Master ordered the preliminary trial of the issues of meaning and whether the publication met the serious harm threshold at section 1 Defamation Act 2013.

After correspondence between the Claimants and Defendants the Sunday Mirror published an apology on page 2 of in its next edition, although this apology was not agreed between the parties.

1) The meaning of the words complained of.

2) Whether the publication of the words complained of had caused or was likely to cause serious harm to either or both of the Claimants within the meaning of section 1 Defamation Act 2014.

(1) Meaning

The Judge set out the familiar principles on determining meaning derived from Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and Slim v Daily Telegraph Ltd [1968] 2 QB 157. Bean J accepted neither party’s submitted meanings, and found the natural and ordinary meaning of the words complained of, in context, to be:

(a) Midland Heart, whose chief executive is Ruth Cooke, is one of the well-off landlords of rented properties in James Turner Street who let houses to people in receipt of housing benefit at rents of is to £650 per month, thereby making money from the misery of James Turner Street residents; and that

(b) Ms Cooke is personally responsible for this conduct of Midland Heart, and has herself profited and become rich from it, in that she is paid £179,000 a year and lives in a large house in Gloucestershire.

2) Serious harm

Finding that the publication had not caused and was not likely to cause serious harm to the Claimants’ reputations:

The Claimants submitted witness statements setting out their case on serious harm, but were not in a position to adduce evidence about specific individuals who as a result of the article thought less of them. They were not called for cross-examination, and the Judge commented that cross-examination would have been inappropriate.

As the second Claimant is not a body which trades for profit, the test both Claimants needed to fulfil is that under section 1(1) of the Act. “Has caused” under that section looks backwards in time, whereas “is likely to cause” involves looking forwards. Although it made no difference in the present case, the Judge expressed the view that the date at which one looks backwards or forwards (i.e. the dividing line between the two) is the date of issue of the claim.

In interpreting the new Act, it is appropriate, where there is a genuine ambiguity, to consider the Explanatory Note, the Ministerial Foreword, the Joint Committee’s report on the draft Bill and statements made by Ministers in each House. However, “serious” is an ordinary word in common usage, and does not create an ambiguity so as to bring these into play under the rule in Pepper v Hart.

Some publications will be so obviously likely to cause serious harm that no evidence will be necessary – for example if a national newspaper wrongly accuses someone of being a terrorist or a paedophile. However, the present case came nowhere near this, so evidence was needed.

The apology was a matter of significance. It was sufficient to eradicate or minimise the unfavourable impression created in the minds of the hypothetical reasonable reader. The apology is now more easily accessible via an internet search than the original article, such that only someone trying to find the unamended version of the article would come across it.

There was no specific evidence that the article had caused harm to the Claimants’ reputations, serious harm could not be inferred, and it was not more likely than not that serious harm would be caused in the future.

As the first case on the new serious harm threshold under section 1 Defamation Act 2013, this case will be of interest to all libel practitioners. It is also the first example of a statement, with a meaning that would have been defamatory under the “old” law, failing to clear the serious harm hurdle. It is clear that the bar has indeed been raised.

The importance the Judge attached to the apology made by the Defendants, even though it was made without being agreed with the Claimants, will be of particular interest to newspapers and other publishers. It seems that a prompt apology which remains accessible (more accessible than the original article) may in effect “remedy” a potentially defamatory statement such that serious harm cannot be said to have been caused or be likely to be caused, unless a claimant can provide actual evidence of serious harm that has been caused notwithstanding the apology.

A number of questions remain to be resolved under section 1: Exactly what evidence will be sufficient to demonstrate that serious harm has been or is likely to be caused? How high has the bar been raised? Would a claimant be tactically better off waiting until later within the limitation period to issue the claim in order to have a better chance of having such evidence available?

Section 1(2) of the Act, which applies to bodies trading for profit and requires them to show that the publication caused or is likely to cause them serious financial loss, also remains to be tested in the courts.