New balls, please

The Daily Telegraph recently won a part 24 CPR summary judgment application in Robert Dee v Telegraph Media Group Limited [2010] EWHC 924 (QB) on the basis that the claim against them had no realistic prospect of success. Judgment was given on 28 April by Mrs Justice Sharp.

Mr Dee is a professional tennis player. He sued over a Daily Telegraph front page article published on 23 April 2008 under the heading: 'World's worst tennis pro wins at last.' The article contained the following paragraphs:

'A Briton ranked as the worst professional tennis player in the world after 54 defeats in a row has won his first match. Robert Dee, 21, of Bexley, Kent, did not win a single match during his first three years on the circuit, touring at an estimated cost of £200,000.

'But his dismal run ended at the Reus tournament near Barcelona as he beat an unranked 17 year old, Arzhang Derakshani, 6-4, 6-3. Dee, below, lost in the second round.'

Underneath the article there were the words in bold: 'Full story: S20.' This was a reference to the back page of the sports supplement of the same edition of The Daily Telegraph which expanded on the article and also referred to other great sporting failures in British history such as ski jumping's Eddie The Eagle.

Dee sued on the front page article alone, alleging it was defamatory. The Telegraph claimed that the front page article had to be read with the associated article and together they were not arguably defamatory of the claimant and in any event the claimant had no real prospect of rebutting a justification and/or fair comment defence.

Closely connected

As to whether the two articles should be read together on meaning, reference was made to the leading case of Charleston v News Group Newspapers Limited [1995] 2 AC 65, where the House of Lords held that a libel claim could not be founded on a headline or photograph in isolation from the related text. Here there were two articles and Mrs Justice Sharp opined that the key question was whether the articles under consideration were sufficiently closely connected as to be regarded as a single publication. Such flexibility as to the manner and form in which information and ideas can be expressed was protected under article 10 of the European Convention on Human Rights. She concluded there was an obvious and clear link between the twoand The Telegraph succeeded on that part of the application.

Were the articles defamatory?

The judge found that it was arguable that the words in issue were defamatory; for example, that Dee lacked insight into his own lack of talent or unreasonably and unrealistically persisted in a career which was doomed to failure. However, that had not been the meaning which had been pleaded. She found it incredible that the articles caused Mr Dee to be shunned and avoided. An innate lack of talent might be said to be a misfortune but no more. It seemed to her that the real complaint was one of ridicule. It was that Dee was made to look 'absurdly bad at tennis'. To that extent she found it was arguable that the words were defamatory but it would be for the jury to decide whether they were in fact defamatory. However, if the case was to proceed it would be necessary for Mr Dee to formulate a meaning in his pleading which would more precisely reflect the nature of his complaint.

Was the plea of justification/fair comment bound to succeed?

It was argued that Mr Dee's success and/or failure on circuit had not taken into account domestic Spanish tournaments. But the judge concluded that it was uncontroversial that Dee had lost 54 consecutive matches; that they were all world-ranking tournaments; that the consecutive run of defeats was a record equalling the worst ever run of defeats in such tournaments; and that the domestic Spanish tournaments in which the claimant had played were not under the jurisdiction of the ITF or ATP (the professional bodies for tennis players).

She found that meaning and justification were bound together and that the ordinary sensible reader reading both articles would not draw the conclusion that the reference to a run of 54 losses represented the whole of Mr Dee's professional record.

The judge held that her conclusion on the first issue on meaning and on the facts removed the central plank of the claimant's case and there was nothing as a matter of reality of which Mr Dee actually complained that could not be justified.

There could be no rational conclusion other than that the claim of justification must succeed and summary judgment was given for the defendant accordingly.

In the last media update (Solicitors Journal 154/15, 20 April 2010) prior to this judgment, reference was made to the costs being disproportionate to any merit in this case and the concern about damage being done to the reputation of libel by such cases being allowed to progress when they should be struck out, and where costs should be capped in any event. This does not require legislation but it does require our judges to grasp the nettle like Mrs Justice Sharp and be proactive and observe the overriding objective.