Reference:  EWHC 693 (QB);  EMLR 28
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 28 Mar 2012
Summary: Defamation - libel - ruling on meaning - procedure - application for ruling without a hearing - direction for hearing - open justice - costs
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David Sherborne (Claimant)
Instructing Solicitors: Reynolds Porter Chamberlain for D; Lee & Thompson for C
The singer Charlotte Church complained of an article in The People entitled ‘Marry-oke’, which described how she had proposed to her boyfriend during a “boozy pub karaoke night”. She complained that the article meant she had made an embarrassingly drunken spectacle of herself that night.
The story was false. C had not been at that pub that night, had not proposed to her boyfriend then or at all, and had not been drunk. D published a correction and apology. C sued for libel.
D disputed the meaning alleged and contended that the article was not defamatory of C. D offered to have those issues resolved by ADR, but C said she was not interested in that means of disposing of her claim. D applied for a ruling on meaning, including whether the article was defamatory. D applied for those issues to be determined on paper, without a hearing, pursuant to CPR 23.8 and lodged written submissions with its application notice. C opposed paper disposal and sought a hearing.
The court directed a hearing, at which it also heard submissions on the general issue of whether meaning applications should be disposed of without a hearing.
(1) Were the words complained of capable of defaming C in the meaning complained of or any other meaning of which she might complain?
(2) Should such applications be disposed of without a hearing?
(3) What was the appropriate costs order?
(1) The words were capable of bearing the meaning complained of and that meaning was defamatory of C.
(2) It would only be in a small number of cases that it would be appropriate to dispose of a meaning application without a hearing. The court should consider any possibility of keeping costs low and proportionate. Disposal of the application without a hearing would have been cheaper. However, if meaning were disposed of on paper it was likely that a disappointed claimant would exercise their right to an oral hearing of an application to set aside the ruling. That would increase costs. Further, the court has a duty under CPR 53 PD para 4.1(3) to consider whether words can bear a defamatory meaning other than the one(s) complained of, which could not be discharged effectively without a hearing. In addition, albeit not in the present case, the court would often need information from the parties to assist it in placing itself in the position of the ordinary reasonable reader, and a hearing was the appropriate way to achieve that. Moreover, the open justice principle supported C’s submission that meaning applications should normally be dealt with at a hearing. An application for paper disposal is in substance an invitation to depart from open justice.
(3) D should pay C’s reasonable costs of the applications, including the costs of the hearing and the issue of whether paper disposal was appropriate. D had not speficied the meaning it attributed to the words, in compliance with the Pre-Action Protocol. It was thus in a poor position to complain, as it did, of C’s refusal to engage in ADR.
C’s costs were summarily assessed at £7,000.
The reasoning on open justice is interesting, and may have wider ramifications. D had argued that paper disposal was not ‘secret’ because written submissions were not confidential and could be made public, but the Judge observed that not all such documents were accessible under CPR 5.4C. There is an interesting comparison to be drawn with the Court of Appeal’s decision, a few days later, in R (On the application of Guardian News and Media) v (1) City of Westminster Magistrates Court (2) Government of the United States
The costs ruling places emphasis on an aspect of the Pre-Action Protocol that has not featured prominently, if at all, in previous decisions. The Protocol says it is “desirable” for the defendant to specify the meaning it attributes to the words complained of. This ruling suggests that a failure to do so can have costs consequences, and in particular that such failure may defeat an otherwise justified complaint that a claimant has turned down ADR.