On 7 July 2022, the High Court handed down a judgment on a series of preliminary issues in the case of The Duke of Sussex v Associated Newspapers Limited  EWHC 1755 (QB). The Duke of Sussex brought a libel claim against Associated Newspapers over an article published on 19 and 20 February 2022 in the Mail on Sunday and MailOnline respectively (the "Article").
The Article reports on the Duke's judicial review against the Home Office in respect of the Government's refusal to provide him and his family with police protection now that he and his wife have "stepped back" from their official duties.
It ran in print under the headline: “REVEALED: How Harry tried to keep his legal fight over bodyguards secret…then minutes after MoS broke story his PR machine tried to put positive spin on the dispute”.
What did the Court decide?
Nicklin J found that the natural and ordinary meaning of the Article is as follows:
- In the Duke's legal challenge against the Home Office, he had sought "confidentiality restrictions that were far-reaching and unjustifiably wide and were rightly challenged by the Home Office on the grounds of transparency and open justice";
- While the legal challenge was to the Government's refusal to allow him to pay for his police protection – and he was responsible for statements issued on his behalf to that effect – the true position was that court documents revealed he had made the offer only after proceedings had commenced; and
- Therefore, the Duke of Sussex "was responsible for attempting to mislead and confuse the public as to the true position, which was ironic given that he now held a public role in tackling “misinformation”".
Statement of fact vs expression of opinion
The Article was found to contain both expressions of opinion (as underlined above) and allegations of fact.
Common law defamation
In the meaning found by the Court, Nicklin J held that the Article is defamatory of the Duke of Sussex at common law.
Applying the test in Millett v Corbyn  EMLR 19 at , meaning (a) was held to be only "narrowly" defamatory, but overall signalled to the reader that the Duke of Sussex's actions are "discreditable or worthy of criticism".
In respect of meaning (b), Nicklin J found that the Article clearly alleged this was an example of "spinning" (as distinct from "lying"), which is "presentation of true facts (and often the omission of other facts) in a way that is designed to give a positive message but which, overall, is apt to mislead". The Article signalled that the Duke was responsible for the "spin".
Meaning (b) was only held to be defamatory when taken together with meaning (c), which "supplied" the meanings with the defamatory element, being the allegation that the "object was to mislead the public" (albeit "spinning" will not always amount to misleading).
What are the implications?
The judgment of Nicklin J contains helpful analysis of how the courts approach questions of meaning. However, the reason why many are following this spin off litigation – aside from interest in the parties involved – lies in the media criticism of the Duke for bringing a judicial review (and his explanations for doing so), which he is understandably aggrieved by. Such reporting is problematic as it may dissuade litigants from asserting their legal rights.
The next step will be for Associated Newspapers to file a defence to the claim. Nicklin J concluded by emphasising that despite the preliminary findings, "it will be a matter for determination later in the proceedings whether the claim succeeds or fails, and if so on what basis". This will involve an assessment of whether the Duke of Sussex suffered serious harm to reputation under s.1 Defamation Act 2013 and any substantive defences relied on by Associated Newspapers.