Neutral Citation Number: [2011] EWHC 1519 (QB)
Case No: HQ10D01492

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16/06/2011

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between :

	FRANK COOK	Claimant	
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	TELEGRAPH MEDIA GROUP LIMITED	Defendant	

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Mr Jonathan Crystal (instructed by Hill Dickinson LLP) for the Claimant
Mr David Price Q C(of David Price Solicitors and Advocates) for the Defendant

Hearing date: 9 June 2011
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Judgment

Mr Justice Tugendhat: 

1.	This is the trial of two preliminary issues in this libel action pursuant to my order dated 9 May 2011. It has been the subject of previous judgments on various issues: [2011] EWHC 763 (QB) (29 March 2011); [2011] EWHC 1134 (QB) (9 May 2011). In the issue of the Sunday Telegraph dated 31 May 2009 the Defendant (“the Telegraph”) published three articles, on three separate pages, each of which Mr Cook claimed was defamatory of him.  Mr Cook sued for libel on 20 April 2010. 
2.	The first of the three articles is headed “MP claimed £5 for church collection” (“the front page article”).  The second is under the title “I’m sorry, church claim was unfair” (“the page 2 article”).  The third is under the title “COMMENT AND ANALYSIS - Now it is the people’s turn to be heard” (“the Leader”).  
3.	On 9 May I ruled that the articles complained of bear the following defamatory meanings, all of which I ruled were comment (as opposed to statements of fact):
i)	Mr Cook’s claim for £5 was particularly embarrassing having regard to his support of the campaign to commemorate a Battle of Britain hero;
ii)	Mr Cook thought it appropriate to make a claim for a refund of £5;
iii)	At the time Mr Cook made the claim he did not believe he could justify it to the public.
4.	In para [20] of my judgment of 9 May I held that the meaning (i) is the meaning which the front page article and the page 2 article bore. Mr Patrick  Sawer was the author of each of these two articles (jointly with another journalist in the case of the front page article). In paras [31] and [35] of my judgment of 9 May I held that meanings (ii) and (iii) are meanings which the Leader bore. Mr Alasdair Palmer was the author of the Leader.
5.	The preliminary issues are:
a)	Whether an honest person could express the comments on the basis of the admitted facts;
b)	The allegation of malice in paragraph 15(ii) of the Reply.
6.	The plea of malice in issue (b) relates only to Mr Sawer, and so only to meanings (ii) and (iii). The pleading reads:
“[Mr Cook] informed Mr Sawer prior to publication that he did not consider it appropriate to claim the £5 and … Mr Sawer therefore knew it was untrue to state otherwise in the leader”.
7.	Issue (a) must be considered separately in relation to each of the three meanings. 
THE FACTS GIVING RISE TO THIS ACTION
8.	On 17 September 2006 Mr Cook’s assistant, Mr George O’Neill, made a £5 offertory donation at a Battle of Britain church service in Stockton. 
9.	Mr Cook was the Member of Parliament for Stockton North from 1983 until May 2010.  He reimbursed Mr O’Neill. He then included the £5 in his own claim for reimbursement of his expenses as an MP. His claim was rejected. At the time that appeared to be the end of the matter. But it became an issue in 2009 when the Telegraph published its series of articles on MPs’ expenses. They attracted very wide publicity at that time, and have been much discussed subsequently. In the case of a number of MPs the Telegraph and others alleged that the MPs had acted dishonestly. In the present case there is no allegation that Mr Cook acted dishonestly.
THE THREE ARTICLES COMPLAINED OF
10.	The front page article reads:
“MP claimed £5 for church collection
An M.P. used his expenses to claim for a £5 donation he made during a church service to commemorate the Battle of Britain. 
Frank Cook a Labour backbencher sought reimbursement on his office expenses after the memorial service in his constituency town of Stockton On Tees. It was rejected by the parliamentary fees Office. 
The controversial claim was one of a series made by M.Ps that can be disclosed today, including reimbursement for carpets bought in India, sweets bought by a former party leader and office expenses used for household items ... 
Today the Sunday Telegraph discloses the expense claims of 
members of parliament who represent low "value-for-money" when their voting records, participation in parliamentary debates and number of questions they ask are compared to their total level of expenses. 
The most extraordinary was made by Mr Cook who tried to claim for £5 he gave at a Battle of Britain memorial service. A handwritten note attached to the claim by way of a receipt stated "Battle of Britain church service, Sunday 17.09.06. £5 contribution to offertory on behalf of Frank Cook M.P." 
The fees office wrote on his claim "Not Allowed" and refused to pay out on the claim .... 
It is particularly embarrassing because Mr Cook is an official supporter of the campaign to commemorate Air Chief Marshall Sir Keith Park who commanded the RAF's 11 Group Fighter Command during the Battle of Britain". 
11.	The front page article was accompanied by a photograph of the Claimant, with a reproduction of an extract from the Claimant's member's reimbursement form and of the receipt for £5 with the caption: 
“Frank Cook, the Labour M.P., in flight gear. Despite 
campaigning for the RAF he tried to claim on expenses £5 
that he donated at a church service commemorating the 
Battle of Britain”.
12.	The page 2 article reads:
“I’m sorry, church claim was unfair 
Mr Cook last night said he could not remember making the claim but apologised for doing so. His claim for the donation is particularly embarrassing because he is an official supporter of the campaign to commemorate Air Chief Marshall Sir Keith Park who commanded 11 Group Fighter Command RAF at the Battle of Britain. 
He is also a former member of the Commons Defence select committee and his son Andrew is a serving soldier with the Royal Electrical and Mechanical Engineers. 
Mr Cook who was deselected as a candidate for the next general election by his local constituency party in 2008 after more than 24 years representing Stockton North is among the 20 MPs who represent poor value for money to taxpayers. 
Despite claiming total expenses last year of £153,902 which included travel, home office and staffing costs Mr Cook turned up to just 44% of votes in Parliament, spoke 11 times and submitted four questions to ministers ... 
Last year Mr Cook a former gravedigger, Butlins Redcoat and special needs teacher received £23,083 of taxpayers' money to run his second home in Camberwell, south London ... " 
13.	The page 2 article was accompanied by a photograph of the Claimant with the caption: 
“Worthy causes: Frank Cook at Westminster before a charity run. The former gravedigger said claiming for a £5 church collection was ‘unjustified’”.
14.	The part of the Leader which is complained of reads:
“COMMENT AND ANALYSIS 
Now it is the people’s turn to be heard
… When, as we report today, one Labour MP thinks it is appropriate to claim back from taxpayers the £5 he put in a church collection for an RAF charity, the most obvious conclusion that Labour is made up of people who will destroy the ethic of selfless public service. 
If the expenses scandal had revealed flaws of character and 
judgement in individual MPs, it has not revealed a fundamental flaw with Britain's basic system of representative democracy. None of those who made disgraceful claims were forced to do so by "the system", for there were plenty of MPs who only made claims that are beyond reproach. The difference between those who put their snouts in the trough, and those who did not, is that the individual who make up the first group decided to claim what they thought they could get away with, rather than what they could justify to their constituents”.
MATTERS NOT IN DISPUTE
15.	Mr Cook admits that he made the claim for reimbursement of £5, but he states that he did so by mistake.  
16.	There is no dispute that on 17 September 2006 Mr O’Neill attended the Battle of Britain Church Service in Stockton.  He made a donation of £5 on behalf of Mr Cook and provided Mr Cook with a receipt.  Mr Cook reimbursed him that sum the next day.  On 30 September 2006 Mr Cook submitted a form C1 headed “Incidental Expenses Provision: Member’s reimbursement form” to the Parliamentary Fees Office.
17.	At the head of the form there is an instruction “When to use this form”.  It states “Use this form to ask us to reimburse you for costs you have incurred on your Parliamentary duties”.  Above the signature, written by Mr Cook personally, are the words “I claim reimbursement of these costs which I incurred wholly exclusively and necessarily in the performance of my Parliamentary duties”.  There are eleven items on the form which was completed by Mr Cook in his own handwriting. The total is £1,195.44.  It is the last item that is in question.  It reads “RAF offertory £5”.  Attached is the receipt which reads “Battle of Britain church service Sunday 17.09.06 £5 contribution to offertory on behalf of Frank Cook MP received 18.09.06” and signed by Mr O’Neill.  Written against that item are the words “Not allowed”.
18.	On Saturday 30 May 2009 at 09.16 Mr Sawer on behalf of the Telegraph wrote to Mr Cook an email with a letter attached. It required a response by 12 noon on the Saturday, that is 2¾ hours later. Later that day Mr Cook spoke to Mr Sawer by telephone.
19.	The Telegraph reported that Mr Cook had said to Mr Sawer that he could not remember making the claim, but apologised for doing so, and said it was unjustified. The Telegraph also reported that he had said: 
“I have been to many memorial services over the years and have never made any other claim like this. Neither have I claimed for wreaths, as some MPs have”.
20.	The Telegraph article states that the conversation was “last night”. To a reader on the Sunday that would be understood to refer to the previous Saturday night. Mr Cook states that that was in fact the time of the conversation. Mr Sawer states that those words were simply a conventional phrase, and that the conversation in fact took place earlier in the day. The only potential relevance of that issue of timing to any of the questions that I have to decide is to Mr Sawer’s credibility. I will return to it below.
PERTINENCE
21.	What a defendant has to prove to succeed in a defence of fair comment, or honest comment, is set out in my 29 March judgment at [43]. The only point that is relevant to the issues that are before me now is the one that Lord Phillips referred to as “pertinence” (Spiller v Joseph [2010] UKSC 53, [2010] 3 WLR 1791 at para [3] citing Lord Nicholls of Birkenhead in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777, [2000] HKCFA 35 at para [20]):
“20. Finally, the comment must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views: see Lord Porter in Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449, 461, commenting on an observation of Lord Esher MR in Merivale v Carson (1888) 20 QBD 275, 281. It must be germane to the subject-matter criticised. Dislike of an artist's style would not justify an attack upon his morals or manners. But a critic need not be mealy-mouthed in denouncing what he disagrees with. He is entitled to dip his pen in gall for the purposes of legitimate criticism: see Jordan CJ in Gardiner v Fairfax (1942) 42 SR (NSW) 171, 174”.
22.	It is common ground that this is a purely objective test.
23.	Mr Crystal submits that there is an inconsistency between meanings (ii) and (iii). An honest person could not believe that Mr Cook thought it appropriate to make the claim for the £5 while at the same time believing that Mr Cook did not believe he could justify the claim to the public.
24.	Mr Price submits that there is no inconsistency. An honest person could believe that Mr Cook thought it appropriate to make the claim while at the same time not believing that he could justify it to the public (if the public was to find out about it).
25.	In my judgment Mr Price’s submission is to be preferred. The rules governing the re-imbursement of MP’s expenses were not necessarily rules or standards which the public would accept as proper. There is no inconsistency in believing that a claim may be justifiable or appropriate under one set of rules while at the same time believing that it was not justifiable under some other rules or standard. What is justifiable legally is not always justifiable morally.
26.	In my judgment it is quite plain that each of the three comments is one which could have been made by an honest person, and which is germane to the subject matter criticised.
MALICE
27.	It is common ground that the only way in which a claimant can prove that a defendant was malicious in the sense required to defeat a defence of comment is to prove that the defendant (or the individual for whom a corporate defendant is vicariously liable) did not himself believe that the comment was justified: see my judgment of 29 March [44]. This is the same as an allegation of dishonesty: Telnikoff v Matusevitch [1991] 1QB 102.
28.	At paras [68], [69] and [108] the Supreme Court concluded (adopting the view of Lord Nicholls expressed in Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777, [2000] HKCFA 35 para [75]) that: 
“the scope of malice has been significantly narrowed. The fact that the Defendant may have been motivated by spite or ill-will is no longer material. The only issue is whether he believed that his comment was justified.”
29.	The only comment to which the issue of malice is relevant is comment (ii), because that is the only one referred to in para [15] (ii) of the Reply. Mr Sawer did not make that comment: it was Mr Palmer who wrote the Leader. That is a complete answer to the claim of malice. Nevertheless, Mr Sawer and Mr Palmer both gave evidence on the point.
30.	Mr Sawer gave a witness statement and was cross examined, as was Mr Palmer. Mr Sawer stated that he believed that Mr Cook must have thought the claim was justified at the time when he made it, because he submitted it in the circumstances set out above. He had written the words “RAF offertory” in his own hand. So it could not have been inadvertent. After his conversation with Mr Cook, Mr Sawer maintained his belief, notwithstanding Mr Cook’s acceptance that the claim had been unjustified. Mr Sawer’s perception from the conversation with Mr Cook was that he was apologising with hindsight because the matter had come to light. In other words, Mr Sawer did not believe that what Mr Cook was saying related to the time when Mr Cook made the claim. Mr Sawer considered that there was no other explanation for what was on the expenses claim form.
31.	Mr Sawer said that when he spoke to Mr Cook on the telephone Mr Cook did not say that he had made a mistake. What he said was that he did not remember making the claim. He did not give an explanation.
32.	Mr Palmer’s evidence was to the same effect as Mr Sawer’s. He had evaluated what Mr Sawer reported that Mr Cook had said. He believed then, and still believes that when Mr Cook made the claim, he thought it appropriate to do so. He did not accept that such a claim could be submitted by mistake, given the fact that it was submitted in Mr Cook’s own handwriting. It may have been error of judgment to submit the claim, but it was not a mistake in the sense of a slip of the pen. He knew what he was doing.
33.	The cross-examination by Mr Crystal was as thorough and as skilful as it could be. But he did not shake either witness. 
34.	I turn then to the attack of Mr Sawer’s credibility which Mr Crystal made by reference to the timing of the conversation between Mr Sawer and Mr Cook that Saturday.
35.	Mr Cook is not well, and was unable to come to court to give evidence. But in his witness statement he said: 
“The first I became aware that the Telegraph were going to print a story about me was when I received a telephone call from Mr Patrick Sawer at approximately 8 pm on 30 May 2009. The call was completely out of the blue and at the time I received it I was in Stockton High Street”.
36.	Mr Sawer’s evidence is that before sending the e-mail timed at 09.16 that morning, his recollection is that he spoke to Mr Cook’s assistant to check that Mr Cook would be available and to ask for the best e-mail address to use.
37.	Mr O’Neill gave evidence disputing that such a conversation took place with him. He produced his diary. That is a detailed document. It contains no reference to this call. But as he accepted in cross-examination, neither does it contain any reference to any conversation between himself and Mr Cook on this topic that weekend. However, on the Sunday Mr Cook gave an interview to the BBC, giving his reaction to the publication of the story that morning. In the statement he refers to Mr O’Neill, not by name, but as a member of his team. Mr O’Neill accepted that it was likely that he had a conversation with Mr Cook on the Sunday, although it is not recorded in his diary. So he cannot be sure that he recorded everything relevant to this case in his diary.
38.	Mr O’Neill was an honest witness doing his best to help the court. 
39.	All three witnesses on this point, Mr Cook, Mr O’Neill and Mr Sawer, were giving evidence about the time of a call made in May 2009, long after the event. A good way to test oral evidence is to compare it to any contemporaneous documents there may be, and to see which version of events fits best with the contemporary documents.
40.	Mr O’Neill’s diary is one contemporaneous document. But the omission of any reference to the call from Mr Sawer is not necessarily inconsistent with the call having taken place.
41.	The other contemporaneous document is an e-mail retrieved from the Telegraph’s back up server. The e-mail is timed on the Saturday at 11.53. It is a draft of Mr Sawer’s article in a form sent to the Telegraph’s in-house lawyer Mr Arthur Wynn Davies by Mr Sawer’s superior, Mr James Hall. It contains an account of the conversation between Mr Cook and Mr Sawer, including the words about the wreaths for which Mr Cook had not claimed. Mr Palmer gave evidence that he had a version of that article available to him before he wrote the leader.
42.	Mr Crystal did not have instructions from Mr Cook to accept the timing on that e-mail. So it was proved by Mr David Ingram, a technical employee of the Telegraph. Mr Crystal did not challenge his evidence. I accept the e-mail is an authentic document.
43.	There is only one conclusion that I can draw from these facts. It is that Mr Cook spoke to Mr Sawer before 11.53 that Saturday. Mr Cook and Mr O’Neill must be mistaken. I draw no inference from this that is adverse to either of them. It is simply a failure of memory. But equally there is nothing to cast doubt on the credibility of Mr Sawer. 
44.	Mr Cook fails to establish that either Mr Sawer (or, for that matter, Mr Palmer) lacked belief in the comment. So the plea of malice fails.
CONCLUSION
45.	For these reasons this whole claim must fail. Since the plea of malice fails, the defence of fair comment succeeds. There is no need to consider the other defences that are pleaded. The decision on this preliminary issue is all that need be decided.
THE TELEGRAPH’S APPLICATION
46.	On 1 June the Telegraph issued an application notice. It applied for the allegation of malice in [15] (ii) of the Reply to be struck out under CPR3.4 (2) or under the inherent jurisdiction of the court, in the light of the witness statements of Mr Sawer and Mr Palmer.
47.	A pleaded case in malice must be more consistent with the existence of malice than with its non-existence: Telnikoff v Matusevitch [1991] 1 QB 102.
48.	On 29 March I was considering an application for summary judgment by the Telegraph. At para [61] of that judgment I held that it was a question of fact what Mr Sawer believed, after the conversation that Saturday with Mr Cook. On the material then before the court I held that it was not possible to say that Mr Cook had no real prospect of persuading the court that Mr Sawer believed what Mr Cook had said on the telephone, and therefore did not believe that Mr Cook ever thought it appropriate to claim back from taxpayers the £5. Accordingly, I held at that time that the defence of comment could fail on this point.
49.	If the case had been tried with a jury, it would have been open to the Telegraph to ask the court at the end of Mr Cook’s case to withdraw the case in malice from the jury. The application would have had to be considered on the evidence then before the court.
50.	If such an application had been made, I would have withdrawn the case from the jury. The only evidence before the court at the close of Mr Cook’s case was his evidence and that of Mr O’Neill.  The effect of Mr O’Neill’s evidence was that he could not be sure that Mr Sawer had not telephoned him, as Mr Sawer claimed. So there was nothing in his evidence to support Mr Cook’s evidence as to the timing of the call. As to Mr Cook’s evidence, all it established is what he told Mr Sawer, which was in any event not in dispute. A journalist who is told what Mr Cook told Mr Sawer is not bound to believe it. On facts such as these it cannot be said that Mr Sawer knew what he was told by Mr Cook to be true. I would have held that on Mr Cook’s evidence the case did not satisfy the test in Telnikoff.
51.	Since the action was tried by judge alone, there was little point in an application that would have been made if the trial had been with a jury. Similarly there is little point in the application that the Telegraph issued on 1 June.  Mr Price did not ask me to decide it before the trial. He asked me to decide it after the trial, just as judges sometimes rule that there is no case to go to a jury after the jury has delivered its verdict. In that way, if there is an appeal, it may be possible to avoid a retrial.
52.	But since I have heard the trial, and reached the conclusions that I have reached on the evidence, I see no point in deciding whether I would have struck out the case if I had been asked to consider the 1 June application notice before the trial.