Reference:  EWHC 2172 (QB)
Court: High Court (Queen's Bench Division)
Judge: Nicol J
Date of judgment: 9 Jul 2018
Summary: Defamation - privacy - data protection - harassment - preliminary issue - meaning
Gervase de Wilde (Claimant)
Instructing Solicitors: Taylor Hampton Solicitors
The Claimant (“C”) was the husband of the defendant (“D”) who was also a performer. C’s claim for libel and infringement of privacy and data protection principles and harassment related to a series of performances by D in which it was said by C that she accused him of subjecting her to domestic abuse.
C sought the trial of the meaning of the words complained of as a preliminary issue. In correspondence the parties were agreed that a preliminary issue trial was desirable, but disagreed as to what evidence would be admissible and what time estimate it should have. Although the parties had reached agreement on the desirability of a preliminary issue, they both recognised that ultimately that was a matter for the court’s decision.
C issued an application notice for an order for a preliminary trial covering: (a) the meaning of the words complained of for the purposes of the defamation claim; (b) whether the libels caused or were likely to cause serious harm to his reputation; (c) whether the words were statements of opinion; (d) if opinion, whether the basis of the opinion was stated.
Should the Court grant permission for the trial of meaning and related issues as a preliminary issue?
Refusing permission for the trial of meaning as a preliminary issue:
The content of the publication was disputed. The performances by D were mainly scripted and D submitted that decisions about meaning and reference to C must be judged by reference not only to the words complained of but their context as well. The present case was unusual in that the corpus of material from which the court must determine the meaning of the words complained of and whether they referred to C was less easy to identify than is usually the case.
The Court considered that about a day would be necessary for the hearing of such a preliminary trial. Even if the trial last a week, the saving of time by holding a trial of a preliminary issue was not as great as it might be in other cases.
The Court was not persuaded that the issue or issues really were severable from the remainder of the disputes in the case. The privacy/data protection claims also raised issues as to the meanings to be attributed to the performances. It was not proposed to include meanings for these purposes in the preliminary issues to be tried. If they were to be incorporated, that would further lengthen the time estimate of such a hearing and diminish further the advantage of having a preliminary trial.
D’s intention in publishing the words complained of may be relevant to damages and the nature of the performance and, if relevant, its context, may be material again at the point of assessing damages.
This is a decision which departs from the increasingly prevalent tendency to order the trial of meaning as a preliminary issue in defamation claims. There were two key factors in the Court’s decision to refuse the application: firstly, that the saving of time in a preliminary trial relative to the trial of the action itself was limited; and, second, that the preliminary issues were not clearly severable from other issues in the litigation. The Court’s assessment of the requirement for a preliminary issue will always depend on the broader nature of the litigation.