Case Law: Turley v Unite the Union, former Labour MP accused of dishonesty wins libel claim

The judgment in Anna Turley v Unite the Union and Stephen Walker [2019] EWHC 3547 (QB) was handed down On 19 December 2019,  The case concerned a libel claim by a former Labour MP against (1) Unite the Union; and (2) the editor of The Skwawkbox blog, which published an article accusing the Claimant of making a false and dishonest declaration in order to join the union.

Nicklin J found in favour of the Claimant and awarded her £75,000, rejecting the Defendants’ truth and public interest defences and finding that the serious harm requirement was satisfied.

Background

The Claimant was a sitting Labour MP who signed up for membership of Unite Community, a section of a union which was technically reserved for only the unwaged, so she could vote against its leader, Len McCluskey. The Second Defendant is the author of The Skwawkbox, a political blog which, having received information and a press statement from Unite, published a defamatory Article about the Claimant which the parties agreed carried a Chase Level 2 defamatory meaning that there were reasonable grounds to suspect dishonesty in her joining the union.

The key issues for trial were as follows:

1. Whether Unite was responsible for the publication on the basis of the information and/or the press statement provided to The Skwawkbox;
2. Serious harm (Section 1 Defamation Act 2013);
3. The defence of truth (Section 2 Defamation Act 2013)
4. The defence of publication on matter of public interest (Section 4 Defamation Act 2013);
5. Whether the Claimant’s litigation conduct was an abuse of process due to false and dishonest statements made in pursuit of her claim;
6. Damages / further remedies.

Judgment

Nicklin J held that Unite was responsible for the defamatory statement because its Director of Communications sent the Second Defendant a press summary fully aware that he intended to publish an article which would identify the Claimant and contain substantially the same defamatory sting about her as the statement [55][96].

Unite’s contention that its press statement was designed to “shut down” journalistic enquiries was rejected by Nicklin J, who found that the statement that people were joining the Union on a fraudulent basis was “the equivalent of throwing a substantial quantity of fuel over a very small fire” and was in fact “probably the most powerful contributor to the overall defamatory meaning of the Article” [55].

Nicklin J found that the Claimant’s reputation had been caused serious harm, and that her position as an MP actually made the publication more harmful because it contained an imputation of dishonesty. The Defendants’ submissions that the statement’s location on a transparently left-wing political blog with minimal credibility insulated the Claimant from harm were rejected on the grounds that, inter alia: (i) her opponents could use the Article as ammunition to circulate negative press about her; and (ii) people tend not to read sources which they deem lack credibility [114].

Nicklin J seemingly had no trouble finding that the Defendants’ truth defences failed. According to Unite’s Rule Book, Unite Community Membership was indeed unavailable to those not in paid employment (like the Claimant) but the Claimant had easily completed the application process without being informed of that fact [131]. The Defendants claimed the Claimant “should have known” she was ineligible for Unite Community membership, but his Lordship emphasised that, even if that had been so, “negligence is unlikely to provide an objective basis upon which to reasonably suspect dishonesty” [134].

On the Defendants’ section 4 public interest defence, Nicklin J relied on Warby J’s questions from Economou v David de Freitas [2018] EWCA Civ 2591 [87]:

• was the statement complained of, or did it form part of, a statement on a matter of public interest? If so
• did the defendant believe that publishing the statement complained of was in the public interest? If so,
• was that belief reasonable?

The first requirement (which apes Section 4(1)(a)), was satisfied because an MP’s apparent joining of a union in order to vote against its leader was a matter of public interest.

There was no evidence that anyone at Unite had subjectively believed the publication to be in the public interest, and so its section 4 defence failed on the second question. This test was, however, satisfied by the Second Defendant, whose evidence of that belief was accepted. His defence failed under the third limb, though, because that belief was not reasonable. The journalist’s investigations were “seriously deficient” [155]. In addition to not properly investigating the membership process himself, he had not provided an adequate opportunity to the Claimant to respond [154]; did not put to the Claimant in full the defamatory imputations which the Article contained [57-58]; and gave the Claimant just over three business hours to provide a response [60].

As to abuse of process and damages, the Defendants pointed to the Claimant’s Whattsapp discussions which indicated she had (contrary to what was averred in her original Particulars of Claim) discussed her membership application with other MPs. The Defendants submitted that the Claimant’s dishonesty “permeate[d] through every part of the case” and that “regrettably … she is not fit to be an MP” in support of their contention that, if successful, she should only be awarded nominal damages. Nicklin J disagreed. Unsuccessful pursuit of that line of argument went beyond that which the Defendants needed to prove to satisfy for their truth defence and ostensibly cost them in aggravated damages, which were subsumed into the £75,000 award.

The Court also ordered The Skwawkbox to publish a copy of the Judgment pursuant to section 12 of the Defamation Act 2013.

Comment

This Judgment provides an interesting analysis of the interplay between the different limbs of the public interest defence following on from the Court of Appeal decisions of Serafin v Malkiewicz [2019] EWCA Civ 852 and Economou. For the purposes of section 4(1)(b), a belief is only reasonable “if it is arrived at after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case” (Economou [101]). It is clear now that those circumstances include but are not limited to the old Reynolds criteria, notwithstanding the common law defence was technically abolished by section 4(6) [138].

There is noteworthy obiter that, where two defendants are liable for the publication of the same statement, each must independently establish their own section 4 defence [140]. This is a natural corollary of the subjective belief requirement, but Nicklin J points out that often in practice a commercial editor might not even have had an opportunity to consider whether an article’s publication is in the public interest, so there could be illuminating future case law on that situation if the point arises.

Economou, in which the non-journalist defendant made out a section 4 defence despite not going through fact-checking measures, is looking an increasingly fact-sensitive decision, and it appears that where publications are made by those in positions to conduct journalistic checks, a right to respond and some investigation will normally be required to satisfy section 4(1)(b). This is especially so where there is a basic avenue of factual investigation open to a defendant.

The case serves as a warning to those issuing press statements not to rely on the publisher of the article to conduct their journalistic investigations for them.

It is also a cautionary tale for Defendants who decide to double down on defence of libel proceedings by accusing the Claimant of a higher level of dishonesty than the publication itself. The assertions by the Defendants that the Claimant was so dishonest she was unfit to be an MP led to a high award of £75,000 considering the limited extent of publication and that the meaning was only Chase Level 2 of reasonable grounds to suspect.