Patrick Hodgins v Squire Sanders LLP
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Sharp |
| Judgment Date | 01 August 2013 |
| Neutral Citation | [2013] EWHC 2404 (QB) |
| Docket Number | Case No: HQ13D02115 |
| Court | Queen's Bench Division |
| Date | 01 August 2013 |
[2013] EWHC 2404 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Sharp
Case No: HQ13D02115
Andrew Caldecott QC (instructed by Reed Smith LLP) for the Claimant
James Price QC (instructed by Squire Sanders LLP) for the Defendant
Hearing dates: 26 June 2013
This is an application by the Defendant, Squire Sanders LLP, to strike out this libel action under CPR paragraph 4.1 of PD 53, on the ground that the words complained of in this libel action are incapable of bearing the meaning pleaded in paragraph 4 of the Particulars of Claim.
The Claimant sues on a letter dated 2 nd January 2013 (the letter) sent to him by email but copied his current employer in Greece and to the other members of the management board of Danaos Corporation, of which his current employer is President and CEO, by the Defendant firm of solicitors.
The letter said this:
"2 January 2013
Dear Sir
Letter Before Action
We are London solicitors for Solym Holdings Corporation of Marshall Islands and its subsidiary, Solym Carriers Limited of Gibraltar (the 'Company'), Mr Vassilios Hatzigiannis and Mr Nikolaos Paplios [ sic] who are the Directors and Shareholders of the above companies (the 'Directors').
We write to notify you that we are instructed to commence concurrent actions in the High Court of Justice, Queen's Bench Division, Commercial Court and London Arbitration against you pursuant to your implied contract of employment with Solym Carriers Limited of Gibraltar (on behalf of the Company) and Mr Hatzigiannis and Mr Papalios (as Directors and on behalf of the Company) pursuant to the Shareholders Agreement dated 27 February 2012.
The Company's action against you is for breach of your fiduciary duties to the Company including, but not limited to, your duty to promote the success of the Company, your duty to act within powers, your duty to exercise reasonable care, skill and diligence as Director of the Company, your duty to avoid conflict of interest and your duty not to accept benefits from third parties. Further the Directors' claim against you for breach of Section 10 of the Shareholders Agreement dated 27 February 2012 which claim shall be commenced by way of London Arbitration pursuant to Clause 22 of the Shareholders Agreement.
We should be grateful if you would treat this as the Claimant's Letter Before Action pursuant to the Civil Procedure Rules of England and Wales. We should also be grateful if you would provide us by return with your preferred address for service of our clients' Claim Form and Notice of Appointment of Arbitrator.
All of our clients' rights remain fully reserved in the interim and all further correspondence in relation to this matter should be directed to this office.
We look forward to hearing from you.
Yours faithfully
Squire Sanders (UK) LLP"
The natural and ordinary meaning attributed to the letter is that the Claimant:
i) Had placed himself in a position of conflict of interest and acted in grave breach of his fiduciary duties as a director of Solym Carriers Ltd; and
ii) Had while a director of that company accepted bribes or other improper benefits from third parties in return for acting in a manner detrimental to the company's interests.
As Mr Caldecott QC submits, any meaning has two ingredients: the nature of the charge and the level at which the allegation is pitched. The meaning complained of here is pitched at one of "guilt"; and the sole issue which arises on the Defendant's application is whether the words are capable of bearing that (highest) meaning.
The relevant principles for determining meaning and the range of permissible meanings
The legal framework for determining meaning and the principles which the court must apply when considering an application under CPR Part 53 para 4.1 are well settled.
i) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader reading the article (or viewing the programme) once.
ii) The hypothetical reasonable reader (viewer) 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 is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
iii) While limiting its attention to what the defendant has actually said or written, the court should be cautious of an over-elaborate analysis of the material in issue.
iv) The reasonable reader does not give a newspaper item the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.
v) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable reader the court is entitled (if not bound) to have regard to the impression it made on them.
vi) The court should not be too literal in its approach.
vii) The hypothetical reader is taken to be representative of those who would read the publication in question.
See Gillick v BBC [1996] EMLR 267 at 272–3, where Neill LJ summarised the guidance given by Sir Thomas Bingham MR in Skuse v Granada TV [1996] EMLR 278 as to the approach to be adopted when determining actual meaning; and see also Jeynes v News Group Newspapers Ltd [2008] EWCA Civ. 130 at [14].
The threshold for shutting out a meaning is a relatively high one: it is an exercise in generosity not parsimony: per Sedley LJ on Berosovsky v Forbes Inc [2001] EMLR 1030 at para 16. See also Jameel v The Wall Street Journal SprL [2004] EMLR 6. However that is not to say that a judge on a meaning application may more safely err on one side than the other. That would be inconsistent with the overriding objective: see John v Guardian News & Media Ltd [2008] EWHC 3066 (QB) at [16] and [17].
The Defendant's submissions on meaning
Mr Price QC for the Defendant submits the letter is not reasonably capable of being understood by the hypothetical reasonable reader in the position of those on the management board to bear a meaning of guilt of the conduct described. The letter does no more than indicate the allegation that the company (claimant) will seek to establish, namely that the Claimant did what it is claimed that he did. In this sense only, the letter does make that allegation: and he describes this as the high point of the Claimant's case. But he says it is an illogical and impermissible leap to the conclusion that this is the natural and ordinary meaning of the letter. The content of a letter before claim merely intimates or states the claim or charge which the person will set out to prove in legal or arbitral process. The ordinary reasonable reader would not take it as a statement of guilt since this would negate the very nature of the process. He accepts that the Defendant might have to establish and therefore meet a meaning that there are proper grounds for bringing a claim, but no higher meaning, and certainly not one of guilt.
The position he submits is analogous to that which arises when there is a criminal charge, where it would be unreasonable to take that charge as meaning guilt: see Lewis v Daily Telegraph [1964] AC 234 and what is said by Lord Hodson at p.275: "It may be defamatory to say that someone is suspected of an offence, but it does not carry with it that the person has committed the offence, for this must...
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Dr Atef Halim Wissa v Associated Newspapers Ltd
...terms in the number of subsequent cases. Mr Ojo invites me to take it from the judgment of Sharp J (as she then was) in Patrick Hodgins v Squire Sanders LLP [2013] EWHC 2404 (QB) at para 6: "The legal framework for determining meaning and the principles which the court must apply when consi......