Court rules on meaning in Noel Clarke’s defamation claim against The Guardian

As many readers will know, Noel Clarke, the actor perhaps best known for his roles in three films constituting The Hood Trilogy and the television series Bulletproof, has sued The Guardian newspaper for libel and breach of his data protection rights in respect of eight articles in which he was accused of various forms of sexual harassment.

It is now commonplace in libel claims for the Court to determine the defamatory meaning(s) of the publication(s) complained of before the defendant files a defence.  Such an exercise can be useful where a defendant would like to run a truth defence and needs to know what it must prove in order to succeed at trial.

In Clarke v Guardian News & Media Ltd (Re Preliminary Issues) [2023] EWHC 2734 (KB), the Court ordered that meaning be determined as a preliminary issue, in conjunction with whether the words complained of, in any meaning found, are defamatory of Mr Clarke at common law and whether they are statements of fact or opinion.

The Judgment

Meaning

Save for in respect of one article, even The Guardian accepted that each of the articles complained of implied that there were reasonable (and in one case ‘strong’) grounds to suspect that Mr Clarke had sexually harassed a number of women.  Mr Clarke, however, considered that the articles went further than this and implied that he was guilty of the alleged wrongdoing.  Mr Justice Johnson therefore described the “central issue” as the “degree of defamatory sting of each of the articles and, in particular, whether they bear the meaning that the claimant is guilty of the conduct alleged, or some lesser meaning such as that there are merely grounds to suspect that he is guilty of the conduct alleged.”

Johnson J did not accept either party’s case on meaning in its entirety and instead alighted on a middle ground, which, in summary, was that there are strong grounds, in respect of the first seven articles, to believe that Mr Clarke is guilty of various forms of sexual harassment and, in relation to the eighth article, there are grounds to investigate Mr Clarke.

Defamatory at common law

The uncontroversial test as to what in defamatory at common law was outlined recently by the Court of Appeal in Corbyn v Millett [2021] EWCA Civ 567:-

“At common law, a meaning is defamatory and therefore actionable if it satisfies two requirements. The first, known as "the consensus requirement", is that the meaning must be one that "tends to lower the claimant in the estimation of right-thinking people generally." The Judge has to determine "whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society": Monroe v Hopkins[2017] EWHC 433 (QB), [2017] 4 WLR 68 [51]. The second requirement is known as the "threshold of seriousness". To be defamatory, the imputation must be one that would tend to have a "substantially adverse effect" on the way that people would treat the claimant: Thornton v Telegraph Media Group Ltd[2010] EWHC 1414 (QB), [2011] 1 WLR 1985 [98] (Tugendhat J).”

The Guardian accepted that the words complained of in the first seven articles are defamatory of Mr Clarke at common law, save for the hard copy version of the eighth article, which it said bore the non-defamatory meaning that the police should have investigated allegations made against Mr Clarke because failing to so do meant that the women in question were not treated seriously.  The Judge did not accept this submission and instead held that the eighth article meant that there are grounds to investigate allegations against Mr Clarke of groping, harassment and bullying and that this meaning was also defamatory of him at common law.

Opinion

The Judge held that in each case the statement complained of amounts to a statement of fact rather than an expression of opinion.

Comment

Both parties presented the Judge’s decision as their own victory.  Responding to the ruling, Mr Clarke said, “I have always disputed the content of the eight Guardian articles and I am satisfied that the High Court has now found that all eight articles issued by the defendant were defamatory in law. I look forward to now receiving the Guardian’s defence and progressing my claim for defamation in the high court next year.” The Guardian published an article with the headline ‘Noel Clarke legal action against Guardian suffers high court setback’ which included a statement from an unidentified spokesperson: “We welcome this judgment on meaning. The Guardian’s investigation was deeply reported and researched, and we intend to defend our journalism robustly.”

To the uninitiated, these reactions might suggest that this judgment ought to be heralded as a highly significant event in determining the outcome of the claim.  There is an element of truth in this.  The finding that all the words complained of are factual assertions, for instance, is important since it deprives the defendant of an honest opinion defence (although it should be noted that libel claims based on sexual harassment allegations are rarely defended successfully as honest opinion in any event).

But, for the most part, the parties’ comments on the judgment appear to overstate its importance.  This is so for the following reasons:-

1. Mr Clarke’s avowed satisfaction at the Court finding all eight articles “defamatory in law” might lead a reader with no specialist legal knowledge to believe that The Guardian had denied that all the articles were defamatory at common law when in fact the true position was that it only challenged the hard copy version of the eighth article on this basis. It was hardly surprising that The Guardian conceded that the first seven articles were defamatory of Mr Clarke given the seriousness of the allegations contained therein.  The Court’s decision in this regard was thus primarily an endorsement of what the parties had already agreed.It should be noted that Mr Clarke’s statement that all eight articles are “defamatory in law” is not strictly correct. Pursuant to section 1(1) of the Defamation Act 2013, a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant, but this issue was not determined as part of the preliminary issue trial.  Perhaps what he meant to say was that the articles had been held to be "defamatory at common law".  Nevertheless, Mr Clarke is presumably likely to satisfy the serious harm test given the gravity of the imputations found by the Court and the significant readership of The Guardian (before one goes on to consider the adverse consequences that he says flow from the articles).
2. The Guardian’s statement that it welcomes the judgment on meaning might make readers think that it will now be more straightforward for the newspaper to defend the allegations as being substantially true. This may be so, albeit a defendant can still have real difficulties proving the truth of an allegation that there are reasonable grounds to suspect wrongdoing because where the defamatory imputation is pitched at this level, it is necessary for the defendant to plead and prove primary facts and matters that give rise to reasonable grounds of suspicion objectively judged (King v Telegraph Group Ltd [2004] EWCA Civ 613). In this context, it is impermissible to plead as a primary fact the proposition that some person or persons announced, suspected or believed the claimant to be guilty.  Applying this principle to the present case, it would be insufficient for The Guardian to refer simply to the fact that allegations had been made against Mr Clarke by individuals who claim to have been sexually harassed by him. Further, the Court’s observations in King related to an allegation of “reasonable grounds” to suspect wrongdoing whereas in Mr Clarke’s claim the Court pitched the defamatory imputations in respect of the first seven articles at the slightly higher level of “strong grounds”, thereby requiring The Guardian to produce slightly stronger evidence to support its plea of truth.
3. One of the primary defences likely to be advanced by The Guardian, namely a public interest defence under section 4 of the Defamation Act 2013, is largely unaffected by this judgment because such a defence “is not assessed by reference to a meaning or imputation” and is instead “concerned with protection, on public interest grounds, for the publication of “the statement complained of” (Doyle v Smith [2018] EWHC 2935 (QB)). Indeed, a public interest defence can still succeed even where a truth defence has failed.   Whether such a defence will succeed is likely to raise the same considerations the Court had to address in two recent cases of Hay v Cresswell [2023] EWHC 882 (KB) and Aaronson v Stones [2023] EWHC 2399 (KB), which concerned allegations of sexual misconduct, and have been examined in our recent blog here).

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