Full case report

Fox v Boulter

Reference [2013] EWHC 1435 (QB)
Court Queen's Bench Division

Judge Bean J

Date of Judgment 5 Jun 2013


Summary

Defamation – Libel – Meaning – Innuendo – Trial of meaning as preliminary issue


Facts

The Claimant, an MP and formerly the Secretary of State for Defence, complained that the Defendant, a British businessman, defamed him by an interview he gave to the broadcaster Sky. The Claimant sued in respect of a broadcast of the interview on Sky News (“the broadcast”) and the Defendant’s words as contained in a website posting at Sky News’ website (“the website article”). The broadcast contained part only of the remarks attributed to the Defendant in the interview than the website article.

The Claimant complained that the defamatory meaning of the broadcast and the website article was:

“…that reprehensibly and dishonourably, although he was uniquely in a position to do so, the Claimant had failed to speak out with the truth in order to debunk the supposedly baseless Allegations made publicly against the Defendant, the gravity and discredit of which omission was reflected by the fact that, if the Claimant did not attend court voluntarily in the United States to exonerate the Defendant, then the Claimant would be compelled by legal process to attend.”

The Claimant argued that that was the natural and ordinary meaning of the interview as it was given, particularly in the light of the general knowledge concerning the allegations made against the Defendant at the time, but additionally such a meaning arose by way of innuendo at least in the minds of interested readers who had been following the allegations made against the Defendant.

The Defendant argued that the words complained of bore no defamatory meaning, alternatively any defamatory meaning failed to pass the test for a threshold of seriousness as set out in Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985. Evidence was not admissible in relation to the determination of the natural and ordinary meaning. If the Claimant needed to establish, by evidence, knowledge of particular readers, then that had to be done by proof of the innuendo meaning; it could not be done through so-called “general knowledge” to support a natural and ordinary meaning.


Issue

(1) Did the words (a) of the broadcast; and/or (b) the website article carry any meaning defamatory of the Claimant either in the natural and ordinary meaning or by innuendo?

(2) If so, was that meaning sufficiently serious to be defamatory under Thornton?


Held

(1) The broadcast was very short and did not convey any defamatory meaning. The Claimant’s claim in relation to the broadcast was dismissed.

(2) In assessing a natural and ordinary meaning, no evidence was admissible. “General knowledge”, were it to be relied upon, had to be in the category of what Lord Mansfield CJ in R v Horne [1775-1802] All ER Rep 390 at 393E called “matters of universal notoriety”, that is to say matters which any intelligent viewer or reader may be expected to know. Anything which required assiduous reading and a good memory so as to recall the facts of a story dating back several weeks or months cannot fall within that definition. Such knowledge of individual readers would have to be established – if it could – by evidence to support an innuendo claim.

(3) The natural and ordinary meaning of the website article was:

“… that the Claimant was in a position to give evidence to debunk the baseless allegations made publicly against the Defendant but had not done so; that although Dr Fox had previously said that he was willing to do so, Mr Boulter doubted it; and that if the Claimant did not attend court voluntarily in the United States to exonerate the Defendant, then he would be forced to do so by legal process.

(4) This meaning was sufficiently serious to qualify as defamatory under Thornton.

(5) Readers of the website publication with a more detailed knowledge of the allegations that had been made against the Defendant, as set out by the Claimant’s case on innuendo, the conclusion as to the defamatory nature of the website publication was reinforced.

(6) A claimant cannot rely on post-publication facts to support an innuendo meaning: Grappelli v Derek Block Holdings Ltd [1977] 1 WLR 822 applied.


Comment

Rulings on meaning at an early stage are likely to become commonplace after the introduction of the Defamation Act 2013. The Judge’s observations as to the procedure that might be available are interesting [37]:

“…Perhaps the procedure in meaning cases ought to be changed so that the judge is shown the publication, asked to read it once, and (without hearing any submissions or reserving judgment), asked to say or write down what it means.”

If that were adopted, there would be no reason in principle why a ruling as to the meaning could nto be made by the Judge immediately following issue of the Particulars of Claim.

The Judge’s observation in the present case about “general knowledge”, he noted that that to give that expression any wider interpretation would erode the distinction between ordinary and natural meaning on the one hand and innuendo meaning on the other, and so breach the well established rule that evidence is inadmissible on the issue of the natural and ordinary meaning of the words complained of in a defamation action.


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Instructing Solicitors

PSB Law for the Claimant; DLA Piper for the Defendant