Law, Libel and the Pitmans: Some Reconsiderations

The International Forum for Responsible Media, (Inform for short) was set up to debate issues of media responsibility. It is a part of the Guardian Legal Network. It mentions

"An action for libel based on a cartoon depicting two politicians was dismissed on 10 May 2012 by the Royal Court of Jersey (Pitman v Jersey Evening Post [2012] JRC 92)."

This is the case summarised by CTV:

"Deputies Trevor and Shona Pitman lost their court battle to sue the Jersey Evening Post and Broadlands estate agents for defamation. It related to a cartoon published in December 2008.  At a hearing in the Royal Court, the Pitmans claimed the cartoon falsely portrayed them as only going into politics for the money. They claim it damaged their reputation. UK Judge, Commissioner Sir Charles Gray and Jurats Le Breton and Milner disagreed and ruled in favour of the newspaper and estate agents."

The more detailed discussion of the case is interesting. It can be found entitled "Case Law, Jersey: Pitman v Jersey Evening Post, cartoon not defamatory" at the website:

http://inforrm.wordpress.com/2012/05/23/case-law-jersey-pitman-v-jersey-evening-post-cartoon-not-defamatory/

The summary says

"An unusual action for libel based on a cartoon depicting two politicians was dismissed on 10 May 2012 by the Royal Court of Jersey.  Sir Charles Gray, sitting as a Commissioner, with two Jurats (of which, more later), entered judgment for the plaintiffs on the basis that the cartoon was not defamatory (Pitman v Jersey Evening Post"

The comment is very interesting, as it is sharply critical of the outcome. It is worth stating in full:

"As the issue of the meaning of the Cartoon was decided by the "Jurats" there is no reasoned judgment on the meaning issue.  This means that there is no indication of the view taken as to the actual meaning of the Cartoon (save that it was not defamatory).    In accordance with well established law, the Jurats were not bound by the plaintiffs' meanings but should have considered any possible defamatory meaning of the Cartoon"

"The decision on meaning does appear to give rise to difficulties.  Although the context of the advertising section and the attempt at humour have to be taken into account, it is somewhat to see what the Cartoon could have conveyed to an ordinary reasonable reader if not some adverse imputation on the financial motivation or dealings of the plaintiffs."

"The linking of the reference to "4x the salary" with the plaintiffs and what was presumably intended to be  political rosette garnished with money can hardly be intended to convey information about the salary multipliers available to the second defendant's customers.  An ordinary reasonable reader would, surely, have inferred that the plaintiffs had abnormal and amusing degree of attachment to their political salaries."

"The imputation that someone who claims to be an idealist is really in politics for the money would obviously be defamatory.  Given that there was no defence of "honest comment", the plaintiffs would then have succeeded.  Questions as to the amount of actual damage caused by the Property supplement and whether the plaintiffs should have had thicker skins would, of course, have been relevant to damages."

And it is also critical of whether the Jurats over the UK practice of using 12 randomly selected lay people; the crux of the argument is that

"The role of the "Jurats" is interesting more generally. There are 12 Jurats in Jersey, appointed by an Electoral College and serve until they are 72.  The role is unpaid and involves several months' work a year.  As might be expected the Jurats are generally retired people. It might be thought that the advantages of having 12 randomly selected lay people decide on the meaning of words (which has, traditionally, been central to the English law of defamation) is lost if the decision is made by two longstanding members of the Royal Court."

It reminded me very much of G.K. Chesterton's comments about the merits of the jury system, where decision are made by ordinary people, over that of people who have become used to sitting in judgement. His argument is that judges get used to their job, and fail to do it properly precisely because they are too accustomed to it, they tend to lack fresh thoughts as time goes on and become set in their ways:

"Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop. Therefore, the instinct of Christian civilization has most wisely declared that into their judgments there shall upon every occasion be infused fresh blood and fresh thoughts from the streets."

"And the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it."

Now the Jurats are not specially trained legal experts, but as the comment states, they are not drawn from the same random group as a jury; they may well have become used to deliberating, and deciding, and of course there were only two of them in this instance as well. It does seem strange that the UK requires 12 people to decide, whereas Jersey makes do with only two, not even the Superior Number of the Royal Court. It is notable that Guernsey has jurats rather than jury, but has 12 of them present at a Royal Court sitting.

And the Inform comment makes an extra point about how the Pitman's had effectively to argue with one hand tied behind their backs:

"A final point which arises from this case concerns the interim decision on the admissibility of evidence on innuendo meaning.  At a hearing on 26 March 2012 Sir Charles Gray ruled that it was not permissible for the plaintiffs to adduce evidence to support the innuendo meanings which witnesses understood the words to bear ([2012] JRC 69)."

"It is interesting to note that in reaching this conclusion he differed from the current edition of Gatley on Libel and Slander which states  'Where the claimant has pleaded an innuendo he may, in addition to calling evidence of the extrinsic facts on which he relies, call witnesses to state the meaning in which they understood the words.  The origins of this rule are the same as that which applies to evidence concerning the identification of the claimant.'"

And they conclude:

"In reaching this conclusion Sir Charles Gray relied on the recent decision of the Court of Appeal in Baturina-v-Times Newspapers [2011] 1 WLR 1526 where Sedley LJ expressed the view (without citation of authority) that even in an innuendo case the a claimant is not "entitled without more to put into the witness box a series of witnesses to say on oath what they made of the publication". [56]   This can, however, be contrasted with evidence of what was said by one of the publishees following publication of the words complained of  which Tugendhat J in Lewis v Commissioner of Police ([2011] EWHC 781 (QB)) held was evidence which goes to damages and could also be be relied on as relevant to meaning [68]."

When I first read about the Pitman case, I thought it was unlikely to succeed, and when it failed, the judgment laid down seemed to show that Sir Charles Gray had legal precedent on his side. Having recently read the Inform blog and comments, it appears that other important legal precedents were mentioned but dismissed. The Inform article questions whether that should have been the case, in particular Gatley on libel. That's not to say that the same conclusion may not have been reached, but the article does question whether it was correct not to permit evidence of innuendo by calling witnesses. This, after all, was permitted in Tolley v J S Fry where a caricature of a golfer in an advertisement for Fry's Chocolates led to a defamation case, and witnesses were cited:

"The oral evidence adduced by the plaintiff, apart from his own testimony, was that of a Mr. Storey, an eminent amateur golfer, and Mr. Hobson, a secretary of two well known golf clubs."

That doesn't mean the witnesses testimony will be acceptable, only that it should be heard. This was the case with Felix Onama v Uganda Argus Ltd where the Judge questioned whether a witness (known to the plaintiff) was indeed representative of "the general public as exemplified by the reasonable man" and ruled it out of consideration in summing up.

And it needs to be questioned whether two jurats are sufficient for cases of libel, where both the UK and Guernsey have 12 individuals sitting in libel actions. Even a Superior Number of the Royal Court would be an improvement. That is again not to say they may not have come to the same conclusion, but it would have provided a case less open to accusations of bias.

References
http://inforrm.wordpress.com/2012/05/23/case-law-jersey-pitman-v-jersey-evening-post-cartoon-not-defamatory/
http://www.chesterton.org/discover-chesterton/selected-works/the-essayist/twelve-men/
http://onlawyering.com/2010/12/judges-and-the-wisdom-of-juries/
http://guernseyroyalcourt.gg/article/3089/Jurats
http://mavrkydefamationcaselaw.blogspot.com/2007/01/tolley-v-j-s-fry.html
http://swarb.co.uk/lisc/Defam19301959.php
http://www.saflii.org/ea/cases/EACA/1968/10.html