COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE JACOB
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Mr A Caldecott QC & Ms Alexandra Marzec (instructed by Messrs Farrer & Co) appeared on behalf of the Respondent.
Crown Copyright ©
Sir Anthony Clarke MR:
The alleged libel
"The Words bear the natural and ordinary (alternatively the inferential meaning) that the Claimant (who is and was born a woman) is in truth a man posing as a woman, alternatively that the Claimant is a transgendered or transsexual person, who was born a man but has become a woman."
"6.1. At the time when the claimant appeared on Big Brother, rumours were circulating that a transgendered or transsexual housemate was about to be introduced into the Big Brother house.
6.2 To the best of the claimant's knowledge and belief the broadcasters of Big Brother were themselves spreading the rumours pleaded at paragraph 6.1 above so as to increase interest in the programme. The rumours had reached a wide audience.
6.3 The jury will be asked to infer firstly that many persons to whom the Words were published must have known the facts and matters pleaded at sub-paragraph 6.1 and 6.2 above at the time of publication, and secondly that these readers would have understood the Words to bear the meaning set out in paragraph 5 above."
The issue in the appeal
The correct approach
"5. The Court of Appeal will always be very reluctant to reverse an interlocutory finding of a judge at first instance that the words alleged to be libellous are capable of bearing the defamatory meaning alleged (see Hinduja v Asia TV Limited  EMLR 516, 523 per Hirst LJ and Cruise v Express Newspapers  QB 931, 936 per Brooke LJ)
6. Where the judge has held that words are not capable of bearing a defamatory meaning, with the result that the issue will never go to a jury, the reluctance to interfere will be less marked (see Hirst LJ in Geenty against Channel Four Television  EMLR 524 at 532)"
"16. The real question in the present case is how the courts ought to go about ascertaining the range of legitimate meanings. Eady J regarded it as a matter of impression. That is all right, it seems to us, provided that the impression is not of what the words mean but of what a jury could sensibly think they meant. Such an exercise is an exercise in generosity, not in parsimony. It is why, once fairly performed, it will not be second-guessed on appeal by this court: the long stop is the jury. But it is also why, if on an application for permission to appeal it appears that the judge had erred on the side of unnecessary restriction of meaning, this court -- though it will always be mindful of what Brooke LJ said in Cruise v Express Newspapers  QB 931 about self-denial in libel cases -- may be readier to take another look. In those cases where it does so, its decision is akin to (and strictly speaking probably is) a holding of law. It will have careful regard to the judge's view, but the view it comes to on the legitimate ambit of meaning will be its own. That is the approach we propose to take here."
The legal principles
"…no reasonable reader of the small box on the front of the magazine, whether in The News of the World advertisement or in the magazine itself, could reasonably come to the conclusion that the words "BB's Lisa 'the Geezer'" meant that the woman portrayed in the photograph was deceiving people, or intending to deceive people, into believing that she was a woman when she was in fact a man or a transsexual. That would be to read far too much into those words, even leaving out of account the article within. A reader would indeed be perverse to derive from the words that element of deception or, as it is put in the particulars of claim, 'posing as a woman'."
"It seems to me that meaning is quintessentially a matter for a jury, especially if I may say so, in matters of demotic literature and popular culture such as we have here."
While I entirely accept that all questions of meaning are matters for the jury at a jury trial or for the judge at a non-jury trial, I do not think that it is right to say that this is especially so in matters of "demotic literature and popular culture". In every case, meaning is a matter for the jury unless a judge concludes, on an appropriate application, that the words complained of could not be defamatory, or put another way that a decision by a jury or indeed a judge at a non-jury trial that the words were defamatory would be perverse. On such an application, it is the judge's duty in every case to decide whether the words complained of are capable of having the defamatory meaning or meanings alleged. Having now heard full argument, I have concluded that this is a case in which the meaning suggested on behalf of the appellant is irrational or, as Sedley LJ put it, "fanciful, absurd or factitious".
Lord Justice Tuckey:
Lord Justice Jacob:
I also agree.
Order: Appeal dismissed