Scarsdale Grange LLP t/a Scarsdale Grange Nursing Home v Jpimedia Nsmy Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 23 July 2020 |
| Neutral Citation | [2020] EWHC 1988 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2020-001683 |
| Date | 23 July 2020 |
[2020] EWHC 1988 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Steyn DBE
Case No: QB-2020-001683
Adam Speker QC and Victoria Jolliffe (instructed by McDonaghs Solicitors Limited) for the Claimant
Lord Garnier QC and Ben Gallop (instructed by Jaffa Law Ltd) for the Defendants
Judgment without a hearing pursuant to CPR 23.8(b)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
This claim for libel arises from the publication of an article in The Star on 16 April 2020 (“the Hard Copy Article”) and an article published on the website www.thestar.co.uk the same day (“the Online Article”).
The claim was issued, and Particulars of Claim were filed, on 14 May 2020. The parties are identified in the Particulars of Claim in the following terms:
i) The Claimant is a limited liability partnership incorporated in 2011 which is the owner/operator of a nursing home business in Sheffield trading under the name Scarsdale Grange Nursing Home (“the Scarsdale Nursing Home”).
ii) The First Defendant is the publisher of The Star (also known as The Sheffield Star), an evening newspaper. The Claimant has also pleaded that the First Defendant authorised the publication of its newspaper on the Second Defendant's website.
iii) The Second Defendant is the publisher of the website associated with the hard copy of The Star: www.thestar.co.uk (“the Website”).
By an order sealed on 12 June 2020, and made by consent, Nicol J ordered (“the consent order”):
“1. There be a trial of a preliminary issue of the following matters:
(a) The meaning of the words complained of in the Hard Copy Article and the Online Article.
(b) Whether those meanings are defamatory at common law.
(c) Which of those meanings is a statement of fact or a statement of opinion.”
Neither Defendant has filed a defence. In accordance with paragraphs 4 and 7 of the consent order, the Defendants filed their joint case on meaning on 12 June 2020 and time for service of the defence is extended until 28 days after the determination of the preliminary issue.
The parties have not sought preliminary determination of the question whether the words complained are defamatory within the meaning of s.1 of the Defamation Act 2013. In addition, the Defendants draw attention to the separate question of whether the Claimant itself has a business or trading reputation capable of being injured, while noting that it does not arise for resolution on this application.
The consent order provided for the trial of the preliminary issue to be determined by a Judge from the Media and Communications List on the basis of written submissions only. Accordingly, I have determined the preliminary issue without a hearing, on the basis of written submissions. Save to the extent that this judgment has been handed down in accordance with the Covid-19 Protocol, I have adopted the procedure described by Nicklin J in Hewson v Times Newspapers Ltd [2019] EWHC 650 (QB) at [25].
B. The Law
(a) Meaning
There was no disagreement between the parties as to the applicable principles regarding the determination of the natural and ordinary meaning of the words complained of. The principles are well-established. My attention was drawn to recent summaries of the principles in Stocker v Stocker [2019] UKSC 17, [2020] AC 593, per Lord Kerr of Tonaghmore JSC at [33] to [40]; Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529, [2018] 4 WLR 13, at [11] to [16]; Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25, per Nicklin J at [10] to [15].
The Court's task is to determine the single natural and ordinary meaning of the words complained of. It is well recognised that there is an artificiality in choosing a single meaning from a series of words that individual readers may understand in different ways, but this approach is well-established and it provides a practicable, workable solution: see Stocker v Stocker at [33]–[34].
The focus is on what the ordinary reasonable reader of The Star newspaper and website would consider the words to mean. That is the touchstone. It is the “ court's duty to step aside from a lawyerly analysis”: see Stocker v Stocker at [37] to [38].
When determining meaning it is necessary to have regard to the “ repetition rule”, “ namely that where an allegation by a third party is repeated by the defendant, the words must be interpreted by reference to the underlying allegations of fact”: Koutsogiannis at [15].
The key principles derived from the authorities were helpfully distilled and re-stated by Nicklin J in Koutsogiannis 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 (e.g. 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 this case, the parties draw particular attention to principles (iii), (viii), (ix), (x) and (xi).
I approach the assessment of meaning on the understanding that, in relation to the distinction between the naïve and unduly suspicious reader (principle (iii)), “ modern readers should be treated as having more discriminating judgment than has often been recognised”: John v Times Newspapers Ltd [2012] EWHC 2751 (QB), per Tugendhat J at [19]; and Allen v Times Newspapers Ltd [2019] EWHC 1235 (QB), per Warby J at [14].
Context is “ a factor of considerable importance” ( Stocker at [39]). The court can take judicial notice of facts which are common knowledge (principle (ix)). However, as Nicklin J observed in Riley v Murray [2020] EWHC 977 (QB) at [17]
“The fundamental principle is that it is impermissible to seek to rely on material as “context”, which could not reasonably be expected to be known (or read) by all the publishees. To do so is to “erode the rather important and principled distinction between natural and ordinary meanings and innuendos”: Monroe v Hopkins [40]. When I considered this principle very recently, I explained that the distinction was between “material that would have been known (or read) by all readers and material that would have been known (or read) by only some of them. The former is legitimately admissible as context in determining the natural and ordinary meaning: the latter is relevant only to an innuendo meaning (if relied upon)” (emphasis in original): Hijazi v Yaxley-Lennon [2020] EWHC 934 (QB) [14].”
The meaning of common knowledge, and its applicability to the determination of the natural and ordinary meaning, was considered by Bean J in Fox v Boulter [2013] EWHC 1435 (QB) at [15]–[16]:
“15. The meanings of words...
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