Brown v (1) Bower and (2) Faber & Faber Ltd [2017] EWHC 2637 (QB), Nicklin J, 31 October 2017

C was an MP and former New Labour government minister. D1 was an investigative historian and writer. This was a trial of the preliminary issues of meaning and of whether the words complained of were defamatory at common law.

The Ds had published a book, Broken Vows – Tony Blair, the Tragedy of Power, in which it was said: “In the ensuing discussion about gays in politics, journalist Matthew Parris declared on BBC TV that Mandelson was gay. Days later, Nick Brown, the new minister of agriculture, was accused by the News of the World of paying £100 to rent boys in order to be kicked around a room, and admitted his sexuality.”

C and the Ds differed in their pleaded meanings in that C pleaded a meaning at Chase level 1 and the Ds at Chase level 2. Following discussion of the repetition rule – as to which the significance of context to the meaning of a repeated allegation was emphasised – Nicklin J held the meaning to be that there were grounds to suspect that C had paid young male prostitutes to subject him to consensual rough sex.

As to whether this meaning was defamatory, just a few days before the hearing the Ds’ solicitors had accepted that the meaning contended for in the Defence was defamatory, and seriously so in the sense meant by the Court of Appeal in Lachaux – v- Independent Print Limited & Others [2017] EWCA Civ 1334 [69] – [70]. The Ds’ concessions in this respect were apparently intended to avoid the need for an appeal, the Ds expecting that C would in any event ultimately be unable to make out serious harm. However, the issues of whether saying of a person that he or she has paid others (male or female) for sex and/or whether allegations of having or enjoying consensually violent sex were defamatory were in the Court’s judgment controversial ones. And whether a meaning is defamatory is a matter of law and cannot be disposed of by agreement between parties. Because of the uncertainty of the defamatory nature or otherwise of the allegations and of the non-dispositive effect of the parties’ agreement, Nicklin J declined to rule on whether the meaning found was defamatory at common law and adjourned the issue for decision as and if necessary later in the action.