Irina Bokova v Associated Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin,The Honourable |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWHC 2032 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17M02273 |
| Date | 31 July 2018 |
[2018] EWHC 2032 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: HQ17M02273
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Garnier QC and Timothy Atkinson (instructed by Zaiwalla & Co LLP) for the Claimant
Andrew Caldecott QC and David Glen (instructed by Reynolds Porter Chamberlain LLP) for the Defendant
Hearing date: 8 June 2018
Judgment Approved
These are libel proceedings brought by the Claimant against the publisher of the Daily Mail and MailOnline arising from the publication of articles published by the Defendant concerning the Claimant on 13 April 2016. The online article was longer than the print version.
The Claim was commenced on 29 June 2017 and a Defence was served in October 2017. The Defence relied upon a defence of truth pursuant to s.2 Defamation Act 2013. On the pleadings, there was a dispute between the parties as to the meaning of the articles. As is conventional, the Defendant set out the meaning that it contended was true (“the Lucas-Box meaning”) together with “particulars of truth” (the facts relied upon alleged to prove the truth of the meaning advanced).
When libel actions were conventionally tried by jury, rival contentions as to the meaning that a publication bore arose in almost every case. As the actual ‘single-meaning’ of the publication was a matter of fact, it was reserved for determination by the jury at the ultimate trial. The circumstances in which the determination of meaning could be advanced to any pre-trial stage were very limited. In consequence, any defence (or other issue) that depended upon the final decision as to meaning, in particular a defence of truth (or justification), had to proceed on the basis of the meanings the publication was capable of bearing. This substantially impaired the ability of the Court to exercise meaningful case management and was one of the reasons why defamation actions took so long and were so costly.
The enforced postponement to trial of the determination of meaning meant that a large body of case law has grown up governing the parameters of, what was, the defence of justification. One of the cardinal principles was that the defendant was entitled to justify any defamatory meaning the words complained of were capable of bearing: Prager v Times Newspapers Ltd [1988] 1 WLR 77. But, as Purchas LJ made clear, that was in the context of cases where actual meaning remained to be resolved (at p.86):
“… it is still open to a defendant to plead so as to justify any reasonable meaning of the words published which a jury, properly directed, might find to be the real meaning… At the heart of this case, of course, is the proposition which asserts that the scope of the defence of justification should not depend upon the way in which the plaintiff pleads his case, but on the meanings which the words published are capable of bearing.”
That principle was subject to exceptions. Where a publication contained two or more ‘separate and distinct’ defamatory imputations, a claimant was entitled to select one for complaint, and the defendant was not entitled to assert the truth of the others by way of justification. Whether a defamatory imputation was separate and distinct from other defamatory statements contained in the publication was a question of fact and degree in each case. If the several defamatory imputations, in their context, had a common sting, the defendant was entitled to justify this general sting as a meaning the words were capable of bearing: Polly-Peck v Trelford [1986] QB 1000, 1032per O'Connor LJ; Warren v Random House [2009] QB 600 [102] per Sir Anthony Clarke MR.
The scope for the words complained of to bear a range of capable meanings meant that: “ an action for libel can be converted into a game of skill in which the contestants choose their own rules and the court is content to apply those rules as umpire”: Slim v Daily Telegraph [1968] 2 QB 157, 176–177per Lord Diplock.
Where the defendant sought to defend the publication as true in a meaning different from that advanced by the claimant, he was obliged to specify that meaning: Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147, 153per Ackner LJ. However, the eponymous Lucas-Box meaning, conventionally pleaded, was not an averment by the defendant that the words did bear that alternative meaning, merely that that was the meaning he intended to prove to be true: Prager p.86:
“[The defendant] does not have to identify the precise meaning for which he contends; but he must make clear to the plaintiff what case he proposes to make in precise detail. This may well, and in most cases probably will, disclose one or more meanings of the words which he is prepared to justify; but he is not obliged to plead specifically any meaning for which he contends.”
Indeed, there even appears to have been a rule preventing the defendant from pleading the meaning he said the words bore: see Viscount de L'Isle v Times Newspapers Ltd [1988] 1 WLR 49, 58C-Dper Mustill LJ referring to §11.11 in Duncan & Neill on Defamation (2 nd edition, 1983, Butterworths):
“A defendant is not allowed, however, to set out in his defence what he says the words mean, though, it is submitted that this rule needs re-examination; in many cases one of the crucial issues at the trial is the meaning of the words and it would be clearly convenient if the precise issue between the parties was placed on the record in the pleadings before the hearing.”
That eminently sensible point, made 35 years ago, has still not been embraced even after the advent of the CPR and the increased importance of identification of the disputed issues at the earliest stage. In Armstrong v Times Newspapers Limited [2008] EWHC 1614 – at the time a rare example of a Judge alone determining meaning as a preliminary issue – Gray J said, plaintively ([15]): “ it would be desirable if defendants were to identify in the Defence the meaning for which they contend, in the same way that claimants are required to do”. But it is still unusual to see a positive case as to the meaning of the words complained of advanced in the Defence. Defendants have historically been reluctant to so. Often, that was because they did not want to be tied to a meaning that might subsequently be used against them or because they wished to preserve the argument that the words bore no meaning defamatory of the claimant. Those reasons for not pleading or advancing a positive case as to what the publication meant were sensible – or at least justifiable – when meaning was ultimately to be decided by a jury. But when meaning is disputed and tried as a preliminary issue by a judge, defendants would be well-advised to make very clear what meaning they contend the words bear, including any ‘common sting’ meaning. This is for the very important reason that, once the court has determined meaning as a preliminary issue, it will usually be too late further down the line to start raising issues on the meaning of the publication.
To an extent, this represents a culture shift in defamation pleadings, but it is one that has to be embraced in the new era where meaning will regularly be tried as a preliminary issue. Since the abolition of the ‘right’ to trial by jury in defamation proceedings, by s.11 Defamation Act 2013, libel actions now fall to be determined (and case managed) in the same way as any other civil proceedings in the High Court. One of the principal benefits of the change in mode of trial is that the way is now clear for the Court to determine the actual meaning of a publication as a preliminary issue. Indeed, as the natural and ordinary meaning of a publication is a matter upon which no evidence beyond the words themselves is admissible, in most cases meaning can be determined as soon as it is clear that the issue of meaning is disputed between the parties.
The benefits are obvious. Indeed, if there is no factual dispute on the issue of publication (e.g. a dispute over the actual words published, reference or innuendo), I struggle to see circumstances in which the parties would want to proceed through the stages of defamation litigation without having meaning determined. Its determination can lead to the parties resolving the dispute without the need for further litigation. Even if the claim cannot be settled at that stage, there remain significant benefits for the future conduct of the case. A defendant would know, for example, what would be required for any truth defence to have a real prospect of success. Equally, if meaning is determined before a Defence is served, it remains open to a defendant to make an offer of amends under s.2 Defamation Act 1996 (an opportunity that is lost “ after serving a defence” (s.2(5)). But most importantly, it avoids the spectre of hugely wasteful litigation (perhaps requiring up to a year's preparation and several weeks of trial) of a meaning that the words are found not actually to bear. Some of the pitfalls of pleading a defence before the determination of meaning became apparent in Morgan v Associated Newspapers Ltd [2018] EWHC 1725 (QB).
In this case, for example, a fully-pleaded defence of truth has been advanced in a 50-page Defence to support a meaning which was not the meaning complained of by the Claimant. No Reply has been served. Instead, by an Application Notice dated 30 November 2017, the Claimant sought a determination of the meaning of the articles as a preliminary issue (“the Preliminary Issue”).
Separately, on 5 February 2018, notwithstanding that meaning had still not been determined, the Defendant issued an application seeking permission to amend several paragraphs of the particulars of truth that were relied...
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