Approach in determining whether statements of opinion met the serious harm threshold under the Defamation Act 2013, s 1


Re: Morgan v Associated Newspapers Ltd [2018] EWHC 1725 (QB)

This was a libel claim brought by Steve Morgan CBE against Associated Newspapers Limited, the publishers of the Daily Mail, over an article that appeared in the print edition and (with some minor differences) also online on 24 Aug 2017 under the headline: “Building tycoons using staff discounts to snap up homes meant for families”.

On 28 Jun 2018, two preliminary issues were heard and determined: (1) the meaning of the article; and (2) whether the allegations made were fact or opinion. An extempore judgment was given, and Nicklin J held that the meaning of the article was:

  1. the claimant was able to take advantage of an opportunity to purchase six houses built by his company that were intended to be sold for less-well off buyers as affordable homes – but which had failed to sell – after his company had been successful in getting local authority planning rules changed;
  2. he purchased the six properties at a substantial discount, £860,000 against a market value of £2.1m and, as a result, stood to make a very large personal gain; and
  3. in consequence, the claimant had exploited his position to line his own pockets in a greedy, unethical and morally unacceptable way.

The Court was satisfied that elements (1) and (2) were factual in nature and not themselves defamatory, and (3) was an expression of opinion based on the conduct of the claimant in (1) and (2). Overall, the article was defamatory of the claimant at common law as the defendant had admitted.

At the same hearing the Court heard the defendant’s application to amend its defence to withdraw an admission that the article conveyed a defamatory imputation which was serious. The Court therefore went on to determine a third preliminary issue, whether the meaning found was seriously defamatory of the claimant. In its judgment on that issue the Court was satisfied that the defamatory meaning that the article was found to bear was sufficiently serious as to give rise to the clear inference of serious reputational harm in accordance with the Defamation Act 2013, s 1. The reasons being that:

  1. The opinion denounced the claimant in direct and forthright terms. The claimant was held up as an unacceptable individual deserving of condemnation by right-thinking people. The meaning was serious in the sense that it was likely to provoke outrage in ordinary reasonable readers; there was a clear flavour of exploitation of the less well-off. Applying the Thornton test, the Court was satisfied that the allegation was of a seriousness that it was likely to bring the claimant into at least the contempt of right-thinking persons.
  2. The three individuals, whose words are quoted, were likely to be regarded by readers as authoritative; people whose views were deserving of respect, or at least views that are not likely to be discounted by readers as those of cranks, ill-informed commentators or people with an obvious axe to grind. There was no alternative opinion expressed in the article so as to give readers pause to consider their own view of what was stated about the claimant. Although there is no obligation to present alternative views as a condition of the honest opinion defence, in the absence of any countervailing views this may well affect the overall impact of a publication in terms of its ability to harm reputation.
  3. It will have been plain to readers – from the terms of the article and from the comment – that the newspaper fully endorsed and shared the expressed opinion, describing the claimant’s conduct in its own words as “distasteful” and “sickening”. Any mitigating effect arising from the clear separation of opinion from allegations of fact was therefore reduced.

The defendant’s amendment application was therefore dismissed. The defendant was relying upon the defence of honest opinion, and this defence would be determined later in the proceedings.

Catrin Evans QC was involved in this case.