The publisher of the Daily Mail has lost its challenge to a high court ruling that author JK Rowling should be allowed to read a unilateral statement in open court as part of the settlement of a libel claim.
Associated Newspapers did not dispute that she is entitled to such a move – where the claimant alone makes a statement – but objected to a number of terms in the proposed draft.
Rowling brought the action over a September 2013 story in the Daily Mail and Mail Online claiming an article she had written about her time as a single mother in Scotland was a misleading “sob story”.
The Mail printed an apology to Rowling last May in which it accepted that Rowling made no false claims in the article and said that it had paid her “substantial damages”, which she was donating to charity.
She was not at the court of appeal in London on Friday to hear the challenge dismissed by Lord Justice Longmore, Lord Justice Ryder and Lady Justice Sharp.
In January, Associated’s counsel, Andrew Caldecott QC, said that Mr Justice Tugendhat’s ruling, in April last year, was a “most unsatisfactory precedent” and one which, if generally followed, would create difficulties for the offer of amends regime.
This procedure provides for a defendant to make an open offer to pay costs and damages with an apology – with the aim of bringing a speedy end to litigation in cases where a defendant has unintentionally made statements which it admits to be untrue.
If the offer is not accepted, the claimant may only recover damages through the courts if it can prove malice on the part of the defendant.
Caldecott said: “Although this appeal raises important issues, it in no way seeks to dilute or qualify the published apologies to Ms Rowling which she was properly and rightly entitled to.”
The apology, which appeared both online and in the hard copy of the newspaper, was part of an unqualified offer of amends, which was accepted by Rowling in January 2014.
Caldecott said that the whole purpose of a statement in open court was to attract wide publicity, which made it the more important that the statement was confined to, and accurately reflected, the pleaded claim.
Justin Rushbrooke QC, for Rowling, said that the appeal did not, as claimed, raise any important issue of principle or practice in defamation law, but was plainly misconceived and an “exercise in nit-picking”.
He said that only rarely should a defendant be permitted to dictate to a claimant what she was permitted to say in a statement in open court.
It was primarily a matter between the court and the party wishing to make a statement, and the proper arbiter of what was acceptable in a unilateral statement was the judge.
Giving the court of appeal’s decision, Mrs Justice Sharp said that Associated’s contention was a narrow one – that the judge was wrong to give his approval to a statement which went outside Rowling’s pleaded case in that it mischaracterised the meaning complained of and included matters relating to aggravation of damages which went beyond those in the particulars of claim.
Rowling had made an open offer not to oppose the appeal in relation to the aggravated damages objection and the meaning objection now concerned one word only in the draft statement – the word “dishonest”, used in relation to an article written by Rowling wrote on the website of Gingerbread, the single parents’ charity of which she is the president.
Caldecott said the word did not appear in the pleadings and its inclusion in the draft was unfair.
Rejecting that argument as “flawed”, the judge said the allegation complained of was that Rowling had given a knowingly false account of her time as a single mother in which she falsely and inexcusably accused her fellow churchgoers of behaving badly towards her.
This pleaded meaning was accurately and unambiguously set out in the draft statement.
It was plain that anyone hearing it could be in no doubt that this was the meaning complained of, and that the newspaper’s position was that it accepted that the pleaded meaning was “completely false and indefensible”.
The judge said that the one word to which Associated objected did not change the position.
“The sentence of which it is a part is no more than the expression in ordinary and less formal language of the correctly identified pleaded meaning.
“It is indubitably true that the word ‘dishonest’ is not actually used in the pleading, but, as Mr Rushbrooke submits, it is impossible to see how the claimant could have given an account which she knew to be false – and which contained false and inexcusable allegations against her fellow churchgoers – without being dishonest.”
She said that those conclusions were sufficient to dispose of the one live point on the appeal.