In an early episode of Alan Partridge, the chat show host played by Steve Coogan tells a guest: ‘If you want to make up an anecdote, that’s fine by me.’ In Taylor v Pathe and Ors, Coogan found himself being accused of not letting the truth get in the way of a good story.
The film
The Lost King is a 2022 film produced by Pathe Productions Limited and Coogan’s company Baby Cow Productions Limited. Coogan co-authored the screenplay and appears in the film. It dramatises the 2012 discovery of King Richard III’s remains beneath a council car park in Leicester. Central to the plot is amateur historian Philippa Langley, who is shown as driving the search for the King.
The excavation itself was led by the University of Leicester’s Archaeological Services, working with the Richard III Society and Leicester City Council. Langley is portrayed as the film’s hero. If the film has an anti-hero, it is Richard Taylor – an archaeologist, and the university’s former director of corporate affairs and planning and deputy registrar.
The claim
In the film, Taylor is frequently dismissive of Langley and her theories, but following the discovery, he is shown taking credit on the university’s behalf.
In September 2023, Taylor sued the production companies and Coogan for libel. His core complaint was that he was falsely misrepresented as dishonestly taking credit for the discovery of Richard when he knew that Langley had been the driving force. Separately, Taylor complained that he was falsely portrayed as a generally unlikeable character.
The meaning determination
As is common in libel trials, a preliminary issues trial was listed prior to the service of a defence to determine what imputations the film carried, whether they were statements of fact or opinion, and whether they were defamatory at common law. This hearing took place on 29 February 2024 before HHJ Lewis, with a judgment (Taylor v Pathe Productions Ltd & Ors [2024] EWHC 1475 (KB)) handed down on 14 June 2024.
The judge noted the approach of Warby LJ in Millett v Corbyn [2021] EWCA Civ 567 concerning broadcasts: ‘... this is not a matter of studying the transcript, which cannot tell you how the words are spoken, in what tone, or with what emphasis. It means watching and listening to the interview as a whole, bearing in mind that the ordinary viewer will do so only once. The court should avoid over-elaborate analysis and give weight to its own impression.’
HHJ Lewis considered additional generic-specific factors: ‘The hypothetical reasonable viewer would have appreciated that the film was neither a documentary nor a work of fiction. It was a dramatisation of events, and the viewer would appreciate that this means that the dialogue in the film was not a verbatim record of what occurred.’ The court also considered how scenes were edited, the presentation of a character’s demeanour and the tone of voice, intonation, emphasis and expression used by the actors.
The judge determined that the defamatory imputations the film carried about Taylor were:
a. He had knowingly misrepresented facts to the media and the public concerning the search for, and discovery of, Richard III’s remains. He did so by presenting a false account of the university’s role in the project, and marginalising Langley’s role, despite her major contribution to the find.
b. His conduct towards Langley in respect of the project was smug, unduly dismissive and patronising.
He held that the first imputation was a statement of fact, and the second a statement of opinion.
The settlement
It is common for a libel claim to settle after a preliminary issues trial, because the outcome may give the parties a clearer idea of the prospects of success. A defendant may throw in the towel if the court finds the imputation is one that they are not confident they can prove to be substantially true at trial. Conversely, where an imputation is held to be a statement of opinion, a claimant may be concerned that they will struggle to defeat an honest opinion defence.
Here, however, the case did not settle at this juncture. The defendants advanced defences of truth and honest opinion. Settlement seems to have been reached shortly before a scheduled pre-trial. This was announced in a statement in court at a short hearing on 27 October. Taylor’s barrister explained how the depiction of him ‘had caused serious harm to his professional and personal reputations and caused enormous distress and embarrassment to him’.
As is often the case with libel settlements, the damages figure was simply described as ‘substantial’. The defendants agreed to pay the claimant’s legal costs. Given that the litigation lasted some two years and settled close to trial, these costs, together with the defendants’ own, are likely to be significant. The defendants also agreed to make changes to the film to withdraw the allegations.
A warning for filmmakers
The past decade has seen a notable rise in films and TV series based on true events. In Hollywood, the trend has been referred to as the ‘biopic boom’. The outcome of this claim serves as a warning to filmmakers that there are limits on artistic licence.
While a settlement is not binding, the judgment in the preliminary issues trial is instructive. Portraying a living person negatively risks inviting a claim, which could be difficult unless there is a good evidential basis to satisfy the court that any defamatory imputation is substantially true. Adding a disclaimer at the start may offer some protection, but if the audience still goes away thinking less of the subject, it may not be sufficient.
Iain Wilson is managing partner of Brett Wilson LLP, London
No comments yet