Brown v Bower & Anor

Factual and Procedural Background

This is a libel action concerning certain words published in a book. On 19 June 2017, following an application by the Defendants, the court ordered that two preliminary issues be tried: (a) the meaning of the words complained of; and (b) whether those words were defamatory at common law. The trial of those issues was conducted without admissible evidence, focusing solely on legal interpretation. The Defendants' application to also try the issues of serious harm under the Defamation Act 2013 and abuse of process was refused. The background and procedural history were previously set out in an earlier judgment and adopted in this decision.

The words complained of appear on page 104 of the book and relate to an allegation that the Plaintiff was accused by a newspaper of paying for young male prostitutes to subject him to violent sexual acts. The Plaintiff contends the natural meaning of the words is that he was guilty of this conduct, while the Defendants propose a meaning limited to reasonable grounds to suspect such conduct.

Legal Issues Presented

1. What is the natural and ordinary meaning of the words complained of, as understood by the hypothetical reasonable reader?
2. Does the meaning found amount to a defamatory imputation at common law?
3. What is the proper application of the repetition rule in determining meaning in this case?

Arguments of the Parties

Plaintiff's Arguments

• The words complained of amount to a direct accusation that the Plaintiff paid young male prostitutes for violent sexual acts (Chase level 1 meaning).
• The context of the book and the absence of any qualifying language or antidote means the reasonable reader would understand the allegation as one of guilt.
• The imprimatur of the newspaper in the book implies the allegation was true or believed to be true by the Defendants.
• The Defendants' proposed meaning is improperly diluted and amounts to a lower Chase level meaning, which should be rejected.
• The conduct alleged is immoral and thus defamatory under common law standards.

Defendants' Arguments

• The repetition rule should not be applied mechanistically; context is crucial in determining meaning.
• The book does not adopt or endorse the allegation but merely reports it as part of a broader historical account.
• The reasonable reader would understand the allegation as grounds to suspect, not as an endorsement of guilt (Chase level 2 meaning).
• The book is authored by an investigative historian and contains detailed accounts of various events, but the Plaintiff is not depicted as a casualty or subject to detailed criticism.
• The alleged conduct is defamatory only because of the Plaintiff’s status as a Minister of the Crown, though the natural meaning does not reflect this.
• The Defendants later conceded that their meaning is defamatory at common law but intend to contest serious harm and damages.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Charleston v News Group Newspapers [1995] 2 AC 65	Meaning is the natural and ordinary meaning as understood by the reasonable reader; no evidence beyond the words is admissible.	Confirmed the approach to meaning; the Court applied this principle to interpret the words in context of the entire publication.
Slim v Daily Telegraph [1968] 2 QB 157	Recognition of artificiality in selecting a single meaning; court free to choose the correct meaning within limits.	Guided the Court to select a single meaning that is not more injurious than the Plaintiff's pleaded meaning.
Jeynes v News Magazines Ltd [2008] EWCA Civ 130	Summarised principles for determining meaning focusing on reasonableness and context.	Adopted to guide the Court’s approach emphasizing the reasonable reader and contextual reading.
Simpson v MGN [2015] EWHC 77 (QB)	Consideration of impression and characteristics of the readership.	Supported careful assessment of how the hypothetical reasonable reader would understand the words.
McAlpine v Bercow [2013] EWHC 1342 (QB)	Determining which of two possible meanings is appropriate based on reasonableness of the reader’s understanding.	Informed the Court’s choice between more or less derogatory meanings.
Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529	Importance of context in determining whether words bear a more or less serious defamatory meaning.	Emphasized contextual influence on meaning; applied in assessing the words within the book’s narrative.
Chase v News Group Newspapers Ltd [2003] EMLR 11	Classification of defamatory meanings into three levels (Chase levels).	Used as shorthand to analyse the meaning found and distinguish between guilt, suspicion, or grounds to investigate.
Lewis v Daily Telegraph [1964] AC 234	Explanation of the repetition rule’s effect on meaning and liability.	Provided foundational understanding of how repeating a rumour affects meaning and liability.
Stern v Piper [1997] QB 123	Endorsement of the repetition rule, particularly in relation to defence of justification.	Clarified that repetition rule affects both meaning and proof of defences.
Shah v Standard Chartered Bank [1999] QB 241	Application of the repetition rule to meaning and justification.	Confirmed that repetition rule governs meaning and justification; relevant to the dispute over meaning.
Wake v John Fairfax & Sons Limited [1973] 1 NSWLR 43	Contextual variation in defamatory quality depending on adoption or repudiation of repeated allegations.	Applied to illustrate how context can signal adoption or rejection of repeated defamatory statements.
John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; (2005) 64 NSWLR 485	Analysis of republication of defamatory hearsay and its implications for liability.	Supported the view that republication can amount to adoption and liability depending on context.
Curistan v Times Newspapers Ltd [2009] QB 231	Application of the repetition rule irrespective of defendant's position.	Confirmed that repetition rule dictates meaning given to words used in republication.
Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985	Common law test for whether words are defamatory, focusing on impact on right-thinking people.	Referenced in assessing whether the meaning found is defamatory under common law.
Monroe v Hopkins [2017] EMLR 16	Clarification of the "right-thinking people" standard for defamation.	Guided the Court’s approach to the defamatory character of the meaning by reference to societal standards.
AVB v TDD [2014] EWHC 1442 (QB)	Consideration of immorality and exploitation in sexual conduct allegations for defamation.	Used to discuss whether paying for sex or rough sex is defamatory absent exploitation.
Stephens v Avery [1988] Ch 449	Judicial caution against imposing personal moral views in defamation law.	Emphasized the absence of a generally accepted sexual morality code affecting defamatory meaning.
Jameel v Dow Jones & Co Inc [2005] QB 946	Guidance on court's role in managing litigation and proportionality of judicial resources.	Referenced in relation to the court’s discretion over proceeding with issues agreed by parties.

Court's Reasoning and Analysis

The Court’s primary task was to determine the natural and ordinary meaning of the words as understood by the hypothetical reasonable reader, applying established principles that the meaning is derived from the words themselves and their context within the entire publication. The Court recognized the artificiality in selecting a single meaning but adhered to the principle of reasonableness and contextual reading.

The Court carefully analyzed the so-called repetition rule, which precludes a defendant from escaping liability by merely repeating allegations made by others without adopting or endorsing them. The Court held that the repetition rule applies in determining meaning but must be balanced with the overall context. The Court rejected a mechanistic application of the rule that would always equate repetition with an adoption of guilt (Chase level 1 meaning).

Context was decisive: the passage containing the words is part of a chapter detailing various scandals and pressures on the Blair government, with the Plaintiff’s alleged conduct presented alongside other matters relating to sexuality and media coverage. The Court found that the reasonable reader would understand the Plaintiff’s “admission” as relating to his sexuality, not as an admission of the specific allegation made by the newspaper.

Consequently, the Court found the meaning to be that at the time of the newspaper publication there were grounds to suspect the Plaintiff had paid young male prostitutes for consensual rough sex (Chase level 2 meaning). The Court clarified that the meaning does not include an endorsement or adoption of the allegation by the Defendants, but they take responsibility for its republication.

Regarding whether the meaning is defamatory at common law, the parties agreed that the meaning found is defamatory, though this was a pragmatic concession by the Defendants. The Court noted that determining defamation in this context is complex, given the evolving standards of morality and pluralism in society. The Court highlighted that allegations of paying for sex or engaging in consensual rough sex may not be defamatory absent exploitation or other aggravating factors.

The Court observed that the defamatory character of the meaning may depend on the Plaintiff’s status as a Minister of the Crown, but as this was not pleaded as part of the natural and ordinary meaning, it did not affect the determination of meaning. The Court declined to rule definitively on the defamatory nature of the meaning at this stage, deferring the issue for potential later resolution.

Holding and Implications

The Court held that the natural and ordinary meaning of the words complained of is that, at the time the newspaper made the allegation, there were grounds to suspect that the Plaintiff had paid young male prostitutes to subject him to consensual rough sex. This meaning is a Chase level 2 meaning, reflecting suspicion rather than guilt.

The issue of whether this meaning is defamatory at common law is adjourned and not determined at this stage.

The direct effect of this decision is to clarify the meaning of the words for the purposes of the libel action, providing a foundation for subsequent issues such as serious harm and damages. No new legal precedent is established, as the Court relies on established principles and the parties’ agreement on defamation. The decision underscores the importance of context and careful application of the repetition rule in defamation cases involving repeated allegations.