Meaning in defamation case not to be determined as preliminary issue where defence was public interest (High Court)

The High Court has refused to order that meaning be determined at a preliminary issues trial in defamation proceedings where the defendant’s defence was of publication in the public interest. Meaning had a more subsidiary role in relation to a public interest defence and there was a risk that the preliminary issues would be academic if the defence was eventually upheld. The scheduled trial date could accommodate all the issues fairly.

The defendant had published an article on its website with the headline “United Arab Emirates ‘funnelled money to Turkish coup plotters’”. The claimant’s case was that the article suggested that he was one of the people who had funnelled money. He claimed that the article bore the meaning that he was guilty of serious criminal misconduct on behalf of the UAE in respect of supporting the July 2016 coup against the Turkish government. A nine-day trial was set for November 2019.

The defendant’s main defence was of publication in the public interest under section 4 of the Defamation Act 2013. Although it was generally preferable in defamation proceedings to resolve meaning early, especially where there was likely to be a defence of truth, because that was governed by the meaning, meaning played a more subsidiary role where the defence was of public interest, because it did not set the parameters of the defence. In the instant case, if meaning was determined as a preliminary issue, it would only have a significant outcome on the later trial if the court decided there was no defamatory meaning or tendency. In that scenario, there would be no further trial. However, if there was a defamatory meaning or tendency, then that had little bearing on the defence. It was better to leave all the issues to be determined at a single trial to save time and costs for the parties and the court. The parties could suggest how to resolve the issues at the trial, including whether they should be dealt with sequentially.

It is useful to see an example of a scenario where meaning should not be dealt with as a preliminary issue.

Source: Dahlan v Middle East Eye Ltd [2019] EWHC 2261 (QB) (27 July 2019) (Nicklin J).

Ruling on aggregating statements in defamation (Privy Council)

The Privy Council has found that in limited circumstances it might be possible to aggregate statements made at different times by a defendant so as to give rise to a cause of action in defamation.

The defendants had published two articles alleging that the police had deliberately attempted to assassinate a murderer but had instead shot dead five innocent people. After the inquest, the defendants had published a third article naming nine police officers whose conduct was said to have come into question following the shootings and a fourth reporting the findings of the inquest that the officers were not culpable for the deaths and had not been negligent. The police officers brought proceedings for defamation. At first instance, the court concluded that the later articles could not be aggregated with the earlier articles, as the reasonable reader would have forgotten about them by the time the later ones were published. The Court of Appeal (Trinidad and Tobago) overturned that decision, finding that the claimants could rely on the later articles as identifying those mentioned in the earlier articles, because the facts of the case were so notorious they would have remained in readers’ minds.

The Privy Council considered Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822, in which it was decided that in no circumstances could such statements be aggregated, and Hayward v Thompson [1982] QB 47, which appeared to reach the opposite conclusion. It held, based on the authorities, that there could be exceptions to the principle that statements may not be aggregated where there was created in the mind of the reasonable reader a sufficient nexus, connection or association between a defamatory statement and one that identified the subject.

The Privy Council overturned the decision of the Court of Appeal. The first instance judge had correctly directed himself in law about how to decide whether the articles could be aggregated. The Court of Appeal could not conclude that a judge was wrong in reaching a factual conclusion merely because it disagreed with the conclusion.

The Privy Council also observed that the third and fourth articles were exculpatory. Where claimants were identified in later statements as the subjects of an earlier defamatory statement, the later statement had to be read as a whole. If the effect of the subsequent statement was to take away the defamatory sting of the first, then the aggregation might not be defamatory.

Case: Simon v Lyder [2019] UKPC 38 (29 July 2019) (Lord Wilson, Lord Carnwarth, Lady Black, Lord Briggs and Lady Arden).

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