Dyson Technology Ltd v Channel Four Television Corporation
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Lord Justice Warby,Lord Justice Birss |
| Judgment Date | 25 July 2023 |
| Neutral Citation | [2023] EWCA Civ 884 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
| Docket Number | Case No: CA-2022-002241 |
[2023] EWCA Civ 884
Lord Justice Dingemans
Lord Justice Birss
and
Lord Justice Warby
Case No: CA-2022-002241
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
THE HONOURABLE MR JUSTICE NICKLIN
[2022] EWHC 2718 (KB)
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson KC and Ian Helme (instructed by Schillings International LLP) for the Appellants
Adam Wolanski KC and Gervase de Wilde (instructed by Simons Muirhead Burton LLP) for the Respondents
Hearing date: 27 June 2023
Approved Judgment
This judgment was handed down remotely at 2 o'clock on 25 July 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
Lord Justice Dingemans and
Introduction
This appeal raises an issue about the identification of the person who is the subject of an alleged libel or slander, and what legal tests the court should apply to decide whether an alleged libel or slander has referred to a person, so that they have the right to sue. The issue is described in the textbooks as being one of “identification” of or “reference” to the claimant, see Gatley on Libel and Slander, Thirteenth Edition, at Chapter 8 and Duncan and Neill on Defamation, Fifth Edition, at Chapter 7.
The appeal is from the judgment of Mr Justice Nicklin (“the judge”) dated 31 October 2022. The judge decided as a preliminary issue that the appellants were not entitled to sue unless they could plead a case that there were extrinsic facts linking them to the allegations in a broadcast which were known to viewers. The formal order against which the appeal is brought is that “based solely on intrinsic evidence in the broadcast, the broadcast does not refer to the second and third claimants”. The judge also struck out paragraph 7A of the Re-Amended Particulars of Claim. The appeal is brought with the permission of Lord Justice Warby.
The broadcast
Sir James Dyson, who is not party to this appeal, and the appellants Dyson Technology Limited and Dyson Limited, two British Dyson companies, sued Channel Four Television Corporation (“Channel Four”) and Independent Television News Limited (“ITN”) for libel arising from a report broadcast on Channel Four News on 10 February 2022 (“the broadcast”).
The broadcast concerned what were said to be claims of appalling abuse and exploitation in the factories in Malaysia run by a company called ATA, where Dyson's cordless vacuums and other appliances were made, and the way in which Dyson had dealt with the matter.
The broadcast referred to “Dyson, genius at cleaning carpets” and asked “has this iconic British brand lost credibility?”. It recorded that “we speak to ex-employees of ATA, who suffered abuse, inhuman work conditions, and in one case, even torture, while they were helping to make Dyson products on wages of £9 per day …” and asked “how could work conditions have got so bad, and why wasn't it picked up?”. The broadcast stated “it is one of Britain's most iconic companies but tonight Dyson is facing claims of appalling abuse and exploitation in the factories in Malaysia where its cordless vacuums and other appliances are made”, and referred to Dyson being “a flagship company in Britain”.
There was footage showing a Dyson demonstration store, with the name Dyson showing on the outside of the shop with Sir James Dyson, the founder of the Dyson group, saying “we are in a Dyson demo store where you can try out our technology”. There was a short interview with Oliver Holland, a partner at Leigh Day solicitors, saying “Dyson depicts itself as a very responsible company and ethical, so they should have known what was happening”. It also featured an interview with Michelle Shi, described as “Global Manufacturing and Procurement Director at Dyson in Singapore”.
A transcript of the full broadcast is annexed to the judgment below, so we have not set it out in this judgment.
The High Court proceedings
The Particulars of Claim began by giving brief details of the three claimants as follows:
“1. The First Claimant is the founder and Chairman of Dyson, the multinational technology enterprise established in 1991 (“Dyson”). His name is synonymous with the Dyson brand and group of companies.
2. The Second Claimant is the UK-based company within the Dyson group that holds Dyson's intellectual property, technology and brand rights. The Second Claimant employs a number of Dyson's executive team and retains advisors to protect the reputation of Dyson. The Third Claimant is Dyson's UK trading company.”
A request for further information was made about the case that the broadcast referred to Dyson Technology Limited and Dyson Limited.
This was answered by saying “The information requested is not reasonably necessary to enable the Defendants to prepare their own case or to understand that case they have to meet. The Claimants' pleaded case is clear and the Defendants are not entitled [to] any further information. The Claimants do not plead a reference innuendo. The Claimants rely upon the content of the words complained of which it will be contended would be understood by an ordinary reasonable viewer of the Broadcast to refer to the Second and Third Claimants as prominent Dyson companies.”
It was pleaded that the natural and ordinary meaning of the Broadcast was:
“(1) the Claimants were complicit in the systemic abuse and exploitation of workers at ATA, one of their suppliers located in Malaysia;
(2) the Claimants were also complicit in the persecution and torture of a worker who blew the whistle on the working practices at ATA; and
(3) the Claimants claim to act in a responsible and ethical way but when serious abuses of workers were brought to their attention these abuses were not properly investigated but were ignored and tolerated for a prolonged period of time while the Claimants tried to cover them up and shut down public criticism.”
The parties agreed that there should be a trial of two preliminary issues: the natural and ordinary meaning of the broadcast; and whether that meaning was defamatory at common law. The parties jointly applied to the court for an order to that effect.
Exchanges between the court and the parties about the scope of these issues led the judge to conclude and to direct, by an order dated 13 June 2022, that four preliminary issues should be tried. These were the two issues set out in paragraph 12 above and two further issues, namely: “whether the publication complained of … in its natural and ordinary meaning referred to the Second and Third Claimants”; and whether the publication complained of was or included statements of fact or opinion.
In the order dated 13 June 2022 permission to amend the Particulars of Claim by consent was given. The amendment was as follows:
“7A. The Claimants' primary case is that reasonable viewers would understand the Broadcast to refer to each of the Claimants without special knowledge of extrinsic facts.
7B. In relation to the Second and Third Claimants, if and insofar as necessary, in the alternative, the Broadcast was understood by a substantial number of viewers of the Broadcast to refer to them.
Particulars of Reference
7B.1 The Second and Third Claimants are the most prominent UK companies within the Dyson group. They are the only companies within the Dyson group that interact with UK consumers.
7B.2 The Second Claimant employs a number of Dyson's executive team and retains advisors to protect the reputation of Dyson.
7B.3 The Third Claimant is Dyson's trading company and makes sales of Dyson products to businesses and consumers in England & Wales.
7B.4 On the official Dyson website, the Third Claimant is identified as the company that users of the website make purchases from in the United Kingdom and the Second Claimant is identified as the company that, together with the Third Claimant, operates the Dyson website, apps and connected products.
7B.5 The above facts and matters were known to substantial numbers of viewers of the Broadcast.”
In accordance with standard practice the judge also directed the defendant to serve a statement of its case on the preliminary issues, without pleading a full defence. It might be noted that service of a defence would remove the option of an offer of amends under section 2 of the Defamation Act 1996.
In that statement Channel Four and ITN denied that the Broadcast referred to Dyson Technology Limited and Dyson Limited. They were not named and there was no information in the Broadcast that would lead a reasonable viewer to understand the Broadcast to refer to either of them. Channel Four and ITN added:
“In the event that viewers turned their mind to the question of which corporate entity was being referred to (which is not admitted), given the repeated references to Dyson's activities in South East Asia and the use of a Singapore-based Michelle Shi as corporate spokesperson, they would understand that entity to be Singapore based entity. Neither the Second nor the Third Claimant is based in Singapore.”
As to the meaning of the broadcast, if it did refer to the corporate claimants, Channel Four and ITN maintained that it contained an expression of opinion to the effect that the claimants were “responsible for” the abuse and exploitation of workers at ATA, and for the persecution by ATA of a worker who blew the whistle on working practices at ATA, and that they had therefore not lived up to their advertised standards of ethics and corporate social responsibility. Alternatively, if the broadcast contained a statement of fact then this was to the effect that “there were...
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