Davidoff & Ors v Hargrave

The four Claimants, who held senior roles in various companies under the umbrella of “ABC Estates”, sued for libel over a quote tweet and a comment published on an online website. The quote tweet complained of referred to ABC Estates but did not name any of the Claimants. An article that could be reached via a hyperlink embedded in the quoted tweet named all four Claimants. The article in which the comment complained of appeared only named the First Claimant.

The Claimants contended that the tweet complained of would be understood by the ordinary reasonable reader to refer to them individually because the hypothetical reader would have clicked through and read the hyperlinked article, and advanced a reference innuendo in the alternative. They also pleaded a reference innuendo in the comment complained of in respect of the Second to Fourth Claimants.

The Defendant applied to strike out the Claimant’s pleaded case on reference innuendo. The Claimants also argued that they were allowed to adduce extrinsic evidence concerning the Defendant’s followers in order to determine whether the ordinary reasonable reader of the tweet complained of would click on the hyperlink in the quoted tweet.

(i) Whether the parties are permitted to adduce evidence regarding the Defendant’s followers in relation to the question of whether the hypothetical reasonable reader would click on the hyperlink in the Tweet; and
(ii) whether to strike out the Claimants’ pleaded case on reference innuendo.

(i) The Claimants could not adduce evidence of the Defendant’s Twitter followers to determine whether the ordinary reasonable reader would click on the hyperlink in the tweet complained of. The orthodox position was that no evidence beyond the publication complained of was admissible and the case law did not support a departure from orthodoxy.

(ii) The Claimants’ reference innuendos, which had been settled by different counsel than represented them at the strike out hearing, had been defectively pleaded. The Claimants had not pleaded direct or indirect evidence from which reference could be proved or inferred. However, the Claimants would be given the opportunity to amend the particulars of reference.

This case demonstrates the need, where claimants are not immediately identifiable from the words complained of, to plead clearly the basis on which a reference innuendo is advanced. However, it also underlines that the court will be slow to strike out the pleaded case if it thinks the deficiencies are of a kind that may be remediable.

Also of interest is the discussion of whether parties can adduce extrinsic evidence to identify the characteristics of the ordinary reasonable reader. Although Heather Williams J did not accept that evidence could be adduced, it may remain open to the parties to invite the court to draw inferences about the hypothetical reader’s characteristics based on generalisations about the material in question and the medium by which it has been communicated.