Interesting claims from renowned lawyer Mark Lewis on the Murdoch media phone-hacking scandal
Via Jack of Kent
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
B E T W E E N
- and –
(1) COMMISSIONER FOR THE METROPOLITAN POLICE SERVICE
(2) BARONESS BUSCOMBE
(3) PRESS COMPLAINTS COMMISSION
PARTICULARS OF CLAIM
1. The Claimant is a solicitor.
2. The First Defendant is responsible for the Metropolitan Police Service (“MPS”).
3. The Second Defendant is employed as the Chairman of the Third Defendant.
4. The Third Defendant is a regulatory body for British newspapers and magazines.
5. At all material times the Second Defendant was acting in the course of her employment with the Third Defendant.
6. The Claimant acted as solicitor to Gordon Taylor and Joanne Armstrong, the Professional Footballers’ Association’s (“PFA”) Chief Executive and Legal Advisor and one other person (whose name remains confidential) in an action against News Group Newspapers (“NGN”) in regard to the hacking of mobile telephone messages by employees and/or agents of the News of the World (a newspaper owned by NGN).
7. In 2006 the MPS launched an investigation into the activities of Glenn Mulcaire, a private detective retained by the News of the World, and Clive Goodman, who was employed as the News of the World’s Royal Correspondent. The investigation discovered that Mr Mulcaire had improperly obtained the pin number required to access messages left on Mr Taylor’s mobile telephone voicemail. Mr Mulcaire used this pin number in order to retrieve voicemail messages left for Mr Taylor, thus breaching not only Mr Taylor’s confidence but also the confidence of the numerous persons who left messages for him, including Ms Armstrong.
8. On 26 November 2006 both Mr Mulcaire and Mr Goodman pleaded guilty to conspiracy to intercept communications, contrary to section 1(1) of the Criminal Law Act 1977. The interceptions were of messages left for three members of the Royal Household.
9. Mr Mulcaire also pleaded guilty to five additional counts concerning the unlawful interception of the communications of figures with no connection with the Royal Household (and therefore having no connection with Mr Goodman’s work as a royal correspondent): Max Clifford, Skylet Andrew, Gordon Taylor, Simon Hughes MP and Elle Macpherson. Mr Goodman was not charged with these five offences. They related to interceptions carried out for a person or persons unknown at the News of the World.
10. In 2007 the Third Defendant conducted an investigation into the Mulcaire/Goodman scandal. It published a report entitled: PCC Report on Subterfuge and Newsgathering. During its investigation it posed a number of questions to Colin Myler, who had replaced Andy Coulson following his resignation as the News of the World’s editor, and Les Hinton, the Chief Executive of News International (the News of the World’s ultimate owner). At paragraph 6.3 the report concluded that:
No evidence has emerged either from the legal proceedings or the Commission’s questions to Mr Myler and Mr Hinton of a conspiracy at the newspaper going beyond Messrs Goodman and Mulcaire to subvert the law and the PCC’s Code of Practice. There is no evidence to challenge Mr Myler’s assertion that: Goodman had deceived his employer in order to obtain cash to pay Mulcaire; that he had concealed the identity of the source of information on royal stories; and that no-one else at the News of the World knew that Messrs Goodman and Mulcaire were tapping phone messages for stories.
11. On 6 March 2007 Mr Hinton gave evidence to the Culture, Media and Sport Parliamentary Select Committee (“the Select Committee”). He reported that Mr Myler had told the Third Defendant 12 days earlier that Mr Goodman’s telephone hacking was “aberrational”, “a rogue exception”.
12. On 18 November 2008 the Select Committee commenced an investigation into press standards, privacy and libel. It investigated the News of the World’s involvement in the Mulcaire/Goodman telephone hacking scandal.
13. On 8 July 2009 The Guardian published an article by Nick Davies: Trail of hacking and deceit under nose of Tory PR chief. This concerned allegations that Mr Mulcaire’s actions had not been “aberrational” but that telephone hacking had been widely used by the News of the World in order illicitly to secure information. This article was followed up by one published on 9 July 2009: Revealed: Murdoch’s £1m bill for hiding dirty tricks. This stated that the PCC had been misled when it had been told by News International that Mr Mulcaire’s activities were “aberrational”.
14. As a consequence of the allegations made in The Guardian, on 9 July 2009 the Third Defendant commenced an investigation as to whether it had been misled in 2007. This investigation was independent from that being conducted by the Select Committee.
15. On 2 September 2009 the Claimant gave evidence to the Select Committee. He reported that whilst conducting Mr Taylor’s claim he had attended court in order to make an application for the disclosure of documents from the MPS. Whilst outside court he had a conversation with Detective Sergeant Mark Maberly, who was attending on behalf of the MPS. The Claimant’s evidence to the Select Committee was that:
DS Mark Maberly said to me: “You are not having everything but we will give you enough on Taylor to hang them.” Those were his words: “to hang them”. . . He also mentioned the number of people whose phones had been hacked. Whether that was an aside . . . but they said that there was evidence about, or they had found there were something like 6,000 people who were involved. It was not clear to me whether that was 6,000 phones which had been hacked or 6,000 people including the people who had left messages.
16. The Claimant’s evidence was published and attributed to him by name as follows:
16.1. it was broadcast live via Parliament’s website where a video recording and transcript of the relevant evidence was also published one or two days after the evidence was given. This material continues to be published on this website [From 16:44];
16.2. it was reported upon by The Guardian in an article entitled PCC finds no evidence that it was misled in phone hacking inquiry. The article was first published on 9 November 2009 and has continuously been published on The Guardian website since; and
16.3. it was published by the Third Defendant on 7 November 2009 in paragraph 11.1 of the PCC report on phone message tapping allegations (see paragraph 19 below), which has been published on the Third Defendant’s website since that date.
17. The Claimant’s evidence became widely known to journalists and to those who were interested in the telephone hacking controversy.
18. Immediately prior to the Claimant’s evidence to the Select Committee, Assistant Commissioner John Yates and Detective Chief Superintendent Philip Williams gave evidence to it in regard to the MPS investigation into telephone hacking by Mulcaire and Goodman. The Select Committee made it clear that it believed that the investigation had not been properly conducted by the MPS because it had failed to investigate the extent of the News of the World’s involvement in telephone hacking.
19. On 7 November 2009 the Third Defendant published the conclusions which it had reached as a result of the investigation which it had commenced on 9 July 2009: PCC report on phone message tapping allegations. At paragraph 13.2 it concluded that no evidence had emerged since its 2007 report which indicated that the practice of telephone tapping was engaged in by anyone other than Mulcaire and Goodman or that News of the World executives knew about those activities.
20. The PCC report on phone message tapping allegations was publicly derided:
20.1. Adam Price, a Plaid Cymru MP and member of the Select Committee stated: “I think it would be depressing if this PCC report was perceived by the public as a closing of the ranks within the industry.”; “I think the Guardian really was right to publish its story, was right to raise these questions. And I think it would be a shame if this report was in any way, shape or form interpreted as a slap across the wrists of the Guardian, which I think was raising legitimate questions.”; and that the Select Committee’s forthcoming report “would be able to give a fuller picture of the context of this story”.
20.2. Labour MP Paul Farrelly, a member of the Select Committee, described the PCC report as a “whitewash” and stated that “We (which in context meant the Select Committee) are seriously concerned about the effectiveness of the PCC and self-regulation in the industry,” He also said. “Any whitewash thrown over these events by the regulator will only heighten concerns that will be explored in our report.”
20.3. The above statements received substantial publicity in The Guardian, which also criticised the PCC report on phone message tapping allegations and the Third Defendant.
(I) PUBLICATION BY THE FIRST DEFENDANT
21. On 30 September 2009 Tim Toulmin, a director of the PCC, emailed DI Maberly (who had been promoted since the conversation with the Claimant had taken place). Mr Toulmin stated that whilst the Claimant had indicated to the Select Committee that DI Maberly had told him that “6,000 people were involved in the practice” of “phone message tapping at the News of the World”, John Yates and Andy Hayman (who had given evidence to the Committee on behalf of the MPS) had indicated that “only a handful of people were involved.” Mr Toulmin asked for an indication of the scale of the interceptions.
22. Emma Harraway of the MPS’ Directorate of Legal Services took instructions from DI Maberly. On 9 November 2009 she replied by letter on behalf of the First Defendant that DI Maberly had been “wrongly quoted” by the Claimant. She stated that the correct position was set out in the evidence of Assistant Commissioner John Yates and DCS Philip Williams given to the Select Committee.
23. On 11 November 2009 Mr Toulmin responded to Ms Harraway by email, asking if the correct position was that: “the suggestion that DI Mark Maberly claimed 6000 people were involved in the unlawful practice is wrong.” Ms Harraway responded by email at 16.10. This email included the following words which defamed the Claimant:
Your understanding is correct that DI Maberly has been wrongly quoted, and that you should rely on what Assistant Commissioner Yates and DCS Williams told the Select Committee.
24. In their natural and ordinary meaning or in their innuendo meaning the words complained of meant and were understood to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.
Particular of innuendo
25. The context in which the words complained of were published was provided by those communications set out in paragraphs 21 and 22 above. Given that it had been stated in the correspondence that the MPS case was that there had been a handful of interceptions, the only explanation for the Claimant’s allegation that he had been told by the MPS that 6,000 persons had been involved in phone hacking was that he had invented that figure.
(II) PUBLICATIONS BY THE SECOND AND THIRD DEFENDANTS
(1) The statement
26. On the 15 November 2009 the Second Defendant, acting in her capacity as the Chairman of the Third Defendant, issued a statement to the Society of Editors Annual Conference at the Radisson Blu Hotel, Stansted (“the conference/the statement”). It was published directly by the Second and Third Defendants in the following ways:
26.1. written copies were distributed at the conference;
26.2. it was published orally by the Second Defendant at the conference. The audience included journalists who were reporting upon rather than participating in the conference;
26.3. it was published on the Third Defendant’s website from that date forward; and
26.4. it is to be inferred that the Third Defendant also published it directly to newspapers, magazines and broadcasters as part of a press release or by other means (as was the case with the Second Defendant’s speech to the conference).
27. The statement contained the following words defamatory of the Claimant:
I would like to use this opportunity to say something on a subject that I know has been of great interest to some in the media and politics.
Last week, the PCC published a report following allegations we were misled by the News of the World during an inquiry we conducted in 2007 into how the phone message hacking situation involving Glenn Mulcaire and Clive Goodman could have arisen.
Having reviewed all of the information available, we concluded that we were not materially misled.
While most people seemed to understand our reasons, one or two were less sure. I have chosen not to debate those matters in public, because our report speaks for itself.
But new evidence has come to light.
Those of you who are familiar with the case will recall the significance that was attached to the apparent evidence of a then Detective Sergeant from the Metropolitan Police called Mark Maberly. It was he who was alleged to have said that around 6,000 people had had their phone messages hacked or intercepted.
The allegation was made in oral evidence to the Select Committee on Culture, Media and Sport, and has also been published in the press. It was repeated just last Monday in some coverage questioning our report.
Since the publication of our report last Monday, the PCC has heard from Detective Inspector (as he now is) Maberly through lawyers for the Metropolitan Police.
This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an e-mail confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a “handful” of people being potential victims.
In light of this, I am doing two things.
First, I am of course putting this new evidence to my colleagues in the Press Complaints Commission, because they will want to update our report to take account of this development.
Second, I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.
28. Furthermore, after reading the statement the Second Defendant answered questions from journalists. She was asked by Chris Tryhorn, a reporter acting on behalf of Media Guardian, whether the letter from the MPS “had effectively withdrawn Maberly’s evidence”. She replied:
Maberly has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.
29. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.
30. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.
31. In their natural and ordinary meaning the words set out in paragraphs 27 and 28 (i.e. the slander, the reading out of the statement followed by the Second Defendant’s answer to the Mr Tryhorn’s question) meant and were intended to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Inspector Maberly.
32. The words complained of were calculated to cause harm to the Claimant in his profession as a solicitor. A solicitor cannot properly practise unless he is a fit and proper person. In litigation, it is crucial that a solicitor’s statement of truth is accepted at face value.
33. The Second and Third Defendants knew and intended that the statement and any words added orally at the conference would be republished in the media:
33.1. The issue of telephone hacking by the News of the World was a matter of huge public interest.
33.2. The Second and Third Defendants intended to undermine the recent criticisms of the Third Defendant (and by implication the Second Defendant) by publishing the defamatory words set out above. The criticisms which they were seeking to undermine are outlined in paragraphs 20 to 20.3 above.
34. Alternatively it was reasonably foreseeable that the statement would be republished in the media.
(1) The Society of Editors website
35. On or shortly after 15 November 2009 the Second and Third Defendants caused a copy of the statement to be published in full on the website of the Society of Editors, where it continues to be published. A video recording of the statement was also published on the same website from or shortly after 15 November 2009 to a date which is currently unknown.
36. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking:
36.1. Paragraphs 16 to 16.3 above are repeated.
36.2. In Police lawyers deny 6,000 people had phones hacked, an article written by Andrew Woodcock, the Press Association’s Chief Political Correspondent, which was published from 15 November 2009 onwards on the Society of Editors website, the Claimant was identified by name as the person who had given the evidence as to what DI Maberly had told him.
37. In their natural and ordinary meaning the words set out in paragraph 27 above meant and were intended to mean that:
38. The Second and Third Defendants caused an article with the headline Report by Alexandra Fletcher and Adam Thorn to be published on the website of the Society of Editors from 15 November 2009 or shortly afterwards, where it continues to be published. This report included the following words which defamed the Claimant:
The SOE Lecture 2009
Baroness Buscombe, Chairman of the Press Complaints Commission
Chaired by Nigel Pickover, President, Society of Editors
. . .
Read the full text of Baroness Buscombe’s speech here (Word format)
Read Baroness Buscombe’s statement on new evidence in the phone message hacking episode (Word format)
Report by Alexandra Fletcher and Adam Thorn
The chair of the Press Complaints Commission dealt a blow to allegations of widespread phone tapping by the News of the World on Sunday when she revealed a key witness was misquoted.
Addressing the annual conference of the Society of Editors, Baroness Buscombe revealed that then Detective Sergeant Mark Maberly’s evidence related to only a handful of potential victims – and not the 6,000 quoted in some news reports.
She said lawyers for the Metropolitan Police this week contacted the PCC with the new revelations, which have now been passed on to the John Whittingdale, chair of the Commons Select Committee on Culture, Media and Sport, which is investigating allegations that News of the World staff routinely hacked into text messages in pursuit of stories.
The allegation about Maberley saying there were thousands of possible victims ‘’was made in oral evidence to the Select Committee … and has also been published in the press,” the baroness said. This week’s letter from the Metropolitan Police lawyers “says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a ‘handful’ of people being potential victims.”
Buscombe said she would be putting this new evidence to her colleagues on the Press Complaints Commission, ‘’because they will want to update our report to take account of this development.’’ A recent PCC report concluded that the body had not been misled about the allegations.
She added that she had already told Whittingdale about the new evidence. “Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.”
. . .
Chris Tryhorn, a reporter from the Media Guardian, which first reported the phone tapping allegations, asked Buscombe whether the letter from the Metropolitan Police had effectively withdrawn Maberly’s evidence. Buscombe replied that Maberly: “has been wrongly quoted in saying that 6,000 people were involved. He didn’t say it. He is said to have said it.”
39. The particulars of reference set out at paragraphs 36 to 36.2 are repeated.
40. In their natural and ordinary meaning the words set out in paragraph 38 above meant and were intended to mean that:
The Claimant lied to the Parliamentary Select Committee about what he had been told by Detective Sergeant Maberly.
(2) The Independent
41. On 16 November 2009 the Second and Third Defendants caused a report of the statement to be published in the print edition of The Independent and from that day forward on its website. It contained the following words which defamed the Claimant:
Parliamentary inquiry misled on phone hacks
Detective denies saying messages to 6,000 people were intercepted
A parliamentary inquiry into phone hacking by tabloid journalists may have been seriously misled, it emerged yesterday when lawyers acting for a Scotland Yard detective denied that he had ever claimed that messages to 6,000 people had been intercepted.
The chairman of the Press Complaints Commission, Baroness Buscombe, said that she had been written to by the Metropolitan Police lawyers acting for Detective Inspector Mark Maberly, who, according to evidence given to the House of Commons Select Committee on Culture, Media and Sport, had said that 6,000 people were victims of a culture of phone hacking at the News of the World, Britain’s biggest-selling Sunday tabloid. Baroness Buscombe was told that DI Maberly had “been wrongly quoted”. The police lawyers told her that the “reliable evidence” given to the committee was from Assistant Commissioner John Yates, who had said that only a “handful” of people were targeted.
“I have just spoken to the Chairman of the Select Committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention,” Baroness Buscombe was expected to tell the annual Society of Editors conference last night.
“Any suggestion that a Parliamentary Inquiry has been misled is an extremely serious matter.”
42. A substantial number of those persons who read or listened to the words complained of would have known that the Claimant was the person referred to as having given evidence to the effect that 6,000 persons were involved in telephone hacking. Paragraphs 16 to 16.3 above are repeated.
43. In their natural and ordinary meaning the words set out in paragraph 35 above meant and were intended to mean that:
(3) Press Gazette
44. On 16 November 2009 the Second and Third Defendants caused a copy of the statement and a report of it to be published on the Press Gazette website, where they are still being published.
45. The Press Gazette’s report contained the following words which defamed the Claimant:
Buscombe: Police lawyers deny 6,000 phones hacked
The Commons’ inquiry looking into allegations of phone hacking by journalists may have been misled it emerged last night as Metropolitan Police lawyers acting for a senior officer on the force investigating reporters at the News of the World denied he had ever claimed 6,000 calls had been intercepted.
In a letter to the Press Complaints Commission, police lawyers said that evidence suggested only “a handful” of people were targeted rather than the thousands that were claimed in recent evidence given to the Commons’ Select Committee examining alleged phone-hacking.
PCC chairman, Baroness Buscombe, revealed the existence of the letter to delegates after her opening address to the Society of Editors conference, at Stansted, last night.
Baroness Buscombe said: “The PCC has heard from Detective Inspector – as he now is – Maberly through lawyers for the Metropolitan Police.
“This letter says that Mr Maberly has in fact been wrongly quoted on the 6,000 figure. The reliable evidence, we were told in an email confirming the contents of the letter, is that given by Assistant Commissioner John Yates to the Select Committee, who referred to only a ‘handful’ of people being potential victims.”
Evidence of phone hacking first emerged in 2007, when former News of the World royal editor Clive Goodman and private investigator Glen Mulcaire were jailed for eavesdropping on royal aides and celebrities.
The News of the World then told a PCC inquiry that no one else at the paper was involved.
The inquiry’s findings were reviewed earlier this year after reports in The Guardian suggested that the practice was more widespread at the Sunday tabloid than previously believed.
In a report published last week, the PCC said it had found no evidence that it was misled by the News of the World in the original inquiry.
The PCC report was then criticised by a number of MPs, calling it a “whitewash”, and by Guardian editor Alan Rusbridger who said it was “worse than pointless”.
Last night Buscombe said the commission would update its report in the light of the new information supplied to it about the evidence presented to the CMSC last month by solicitor Mark Lewis.
Lewis told the committee that he had been informed by Maberly that “they had found there were something like 6,000 people who were involved.”
“It was not clear to me whether that was 6,000 phones which had been hacked, or 6,000 people including the people who had left messages.”
Buscombe told delegates: “In light of this [lawyers' letter], I am doing two things.
“First, I am of course putting this new evidence to my colleagues on the Press Complaints Commission, because they will want to update our report to take account of this development.
“Second, I have just spoken to the chairman of the select committee on Culture, Media and Sport, John Whittingdale, to draw this to his attention. Any suggestion that a Parliamentary Inquiry has been misled is of course an extremely serious matter.”
46. In their natural and ordinary meaning the words set out in the republication of the statement and in the words set out immediately above meant and were intended to mean that:
47. The Claimant was motivated by a strong sense of public duty in giving evidence to the Select Committee. He believed that his evidence would contribute important information to its investigation into the telephone hacking affair. The fact that in return for performing a public duty he has been so seriously libelled by the Defendants, all whom hold very senior positions in society, has contributed very greatly to his sense of injustice.
48. The distress caused to the Claimant by the First Defendant’s publication was aggravated because:
48.1. DI Maberly falsely denied the Claimant’s account of their conversation.
48.2. During the Mulcaire/Goodman investigation the MPS had seen or had taken into its possession documents which indicated that the number of potential victims of phone hacking carried out by Mr Mulcaire on behalf of the News of the World was substantial, running into the thousands. At the very least this evidence made it clear that the number involved far exceeded a “handful” (which term had been intended to mean and did mean no more than five or ten).
48.3. It is to be inferred that before Emma Harraway published the words complained of, she consulted not just with DI Maberly but also with senior officers who had been responsible for the Goodman/Mulcaire investigation. Those officers knew, by reason of the material referred to in the preceding paragraph, that it was far more likely that DI Maberly had referred to thousands rather than a “handful” of persons as potential victims of telephone hacking.
48.4. By these deceptions the employees and/or officers of the MPS who were involved in passing the relevant information to the Third Defendant cynically and untruthfully set out to undermine criticisms that had been made of the MPS, most notably by the Select Committee, for failing properly to investigate the true extent of the News of the World’s telephone hacking activities. Paragraph 18 above is repeated.
Second and Third Defendants
49. The distress caused to the Claimant by the publications brought about by the Second and Third Defendants was aggravated because:
49.1. Prior to making the statement, neither the Second nor the Third Defendant contacted the Claimant to inform him that DI Maberly had denied saying words to the effect set out in the Claimant’s evidence to the Select Committee.
49.2. The failure to contact the Claimant prior to publication was in breach of the Third Defendant’s own Code of Conduct regarding the obligation of the press not to “publish inaccurate, misleading or distorted information”. In its guidance to observing the code, the Third Defendant stresses that certain steps prior to publication are important in observing this rule, most particularly giving a “likely complainant . . . an adequate opportunity to respond”.
49.3. In not contacting the Claimant prior to publication the Second and Third Defendants have not only acted with gross unfairness but also hypocritically.
49.4. The Second and Third Defendants cynically chose to promulgate the self-serving statement issued by the MPS because it also served their self-interest in heading off criticism of the Third Defendant’s telephone hacking investigation. Paragraphs 20 to 20.3 above are repeated.
49.5. The Second and Third Defendants disregarded the obvious fact that the Claimant had no motive to fabricate the evidence which he gave to the Select Committee whereas it was likely (and was the case) that the First Defendant was motivated by a desire to undermine criticism of its failure properly to investigate the true extent of the News of the World’s phone hacking activities.
49.6. It was particularly spiteful to engage in the publicity stunt of publishing to the world at large the fact that the Second Defendant had written to the Chairman of the Select Committee in order to report that the Claimant had misled it.
50. In all the premises, the Defendants demonstrated a callous contempt for the Claimant’s dignity, reputation and feelings.
51. Unless restrained by this Honourable Court the Defendants will further publish or cause to be published the said or similar words defamatory of the Claimant.
AND the Claimant claims:
(1) Damages for libel, including aggravated damages;
(2) An injunction to restrain the Defendants, whether by themselves, their servants or agents or otherwise howsoever, from further publishing or causing or permitting the publication of the words complained of or of any similar words defamatory of the Claimant.