Arran Coghlan Claire Burgoyne v Lexlaw Ltd
| Jurisdiction | England & Wales |
| Judge | Lewis |
| Judgment Date | 15 June 2023 |
| Neutral Citation | [2023] EWHC 1453 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2021-001981 |
[2023] EWHC 1453 (KB)
HIS HONOUR JUDGE Lewis
(Sitting as a Deputy Judge of the High Court)
Case No: QB-2021-001981
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Max Cole (instructed by Brandsmiths Solicitors) for the claimants
Andrew Young (instructed by Lexlaw Solicitors) the defendant
Hearing date: on paper
Approved Judgment
HIS HONOUR JUDGE Lewis
This judgment is handed down following the trial of a preliminary issue conducted on the papers, without a hearing.
In 2018, the claimants brought a claim for professional negligence against their former legal advisers. They retained the law firm Lexlaw – the defendant — to represent them under a conditional fee agreement. The seven defendants to that claim were represented by BLM Law.
In March 2020 the claimants terminated the defendant's retainer, prior to the conclusion of the professional negligence proceedings.
On 21 May 2020, the defendant sent a letter to BLM Law (“the Letter”), the terms of which are set out in the schedule to this judgment.
A year later, the claimants issued these proceedings in respect of the Letter. The claimants have sued for defamation, breach of fiduciary duty, misuse of confidential information and breaches of data protection rights. The claimants state that they expect to recover £100,000.
On 23 March 2023, Nicklin J directed that there be a trial of the following preliminary issues pursuant to CPR 3.1(2)(i) and (j) and CPR PD 53B para 6: (i) the natural and ordinary meaning of the statement complained of; (ii) whether the statements complained of are (or include) statements of fact or opinion; and (iii) whether the statements are defamatory of the claimants at common law.
On 3 May 2023, Nicklin J directed by consent that the trial of the preliminary issue will be conducted on paper.
Legal principles
The court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words to bear. In Jones v Skelton [1963] 1 WLR 1362 the Privy Council explained what is meant by a natural and ordinary meaning:
“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. …. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.” per Lord Morris at 1370.
The long-established principles to be applied when reaching a determination of meaning were re-stated by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB) at [12]:
“(i) The governing principle is reasonableness.
(ii) The intention of the publisher is irrelevant.
(iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.
(iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.
(v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.
(vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.
(vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.
(viii) The publication must be read as a whole, and any “bane and antidote” taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues' gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (eg bane and antidote cases).
(ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.
(x) No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.
(xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.
(xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.
(xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning).”
In Millett v Corbyn [2021] EWCA Civ 567 at [9], Warby LJ summarised the principles to be applied when determining whether a meaning is defamatory at common law:
“At common law, a meaning is defamatory and therefore actionable if it satisfies two requirements.
The first, known as “the consensus requirement”, is that the meaning must be one that “tends to lower the claimant in the estimation of right-thinking people generally.” The Judge has to determine “whether the behaviour or views that the offending statement attributes to a claimant are contrary to common, shared values of our society”: Monroe v Hopkins [2017] EWHC 433 (QB), [2017] 4 WLR 68 [51].
The second requirement is known as the “threshold of seriousness”. To be defamatory, the imputation must be one that would tend to have a “substantially adverse effect” on the way that people would treat the claimant: Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 (QB), [2011] 1 WLR 1985 [98] (Tugendhat J)”
Materials
I first read the words complained of to form a provisional view about meaning, before turning to the parties' pleaded cases and submissions, see Tinkler v Ferguson [2020] EWCA Civ 819 at [9].
I then considered the claim form, the particulars of claim, the defendant's written case on meaning, the orders in the case, skeleton arguments from both parties and the authorities bundle.
The defendant has sought to include emails in the bundle by way of background context. The defendant's covering letter says that this material goes to the truth of the words complained of. These materials are not admissible in respect of a determination of meaning and so I have not considered them.
The claimants' case
The claimants say the natural and ordinary meaning of the Letter was that:
“The claimants have terminated the retainer of their solicitors, the defendant, in respect of the litigation with BLM Law's clients, without paying the defendant what they owed them, being £93,259.62 with interest of 8% per annum over a base rate and statutory late payment fees. All monies received by the...
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