England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st January 2008

Sir Anthony Clarke MR:

Introduction

1. This is an appeal from an order dated 25 April 2007 made by Eady J ("the judge") in a libel action in which he struck out paragraphs 5 and 6 of the particulars of claim, as not disclosing defamatory meanings that the words complained of were capable of meaning. In consequence he dismissed the appellant's claim. The judge refused permission to appeal. So did Pill LJ on paper but permission was subsequently granted by Sedley LJ after an oral hearing.

The alleged libel

2. The words complained of appeared on the front cover of the 9-15 May 2006 issue of a magazine called 'Love It'! The words were "BB'S LISA 'THE GEEZER' My fake boobs fell out on a date with James Hewitt!" They appeared in the bottom left-hand corner of the front page. Immediately to the left of them was a photograph of the head and shoulders of the appellant with the word "REALITY!" across her chest. The first respondent is the publisher of the magazine. On page 57 of the issue of the News of the World on 14 May 2006 there appeared an advertisement for the magazine which included a much reduced black-and-white copy of the front page and thus of the photograph of the appellant and the words complained of. The News of the World was published by the second respondent. On pages 22 and 23 of the magazine there appeared an article, for which the words complained of were a trailer, but which is not itself complained of.
3. Paragraph 5 of the Particulars of Claim is in these terms:

"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."

4. It is agreed that the words in brackets are irrelevant. The appellant's case is thus that the words complained of have one or other of two meanings: (1) that the appellant is a man posing as a woman or (2) that she is a transgendered or transsexual person who was born a man but has become a woman. It can be seen that these are alternative meanings.
5. Paragraph 6 of the particulars of claim alleged that the words conveyed the same meaning by innuendo. The Particulars of Innuendo were these:

"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."

6. It is common ground that the appellant had been a housemate on the television programme Big Brother for about a fortnight in mid-2003, which was nearly three years before the publication complained of.

The judgment

7. The issue before the judge was whether the words complained of were capable of bearing either the pleaded natural and ordinary meaning or the pleaded innuendo meaning or any meaning defamatory of the appellant. The application was made under CPR 53 PD paragraph 4.1 which expressly provides that questions of this kind can be decided at any time. The judge accepted the respondent's submission that no reasonable person could construe the words and photograph in their context as conveying the message that the appellant is male or, as the judge put it, "more importantly that she was deceiving anyone or pretending to be female." He accepted the submission that such an inference would be the product of a "strained, forced, or utterly unreasonable interpretation." Put another way, he held that if the jury were to uphold such a meaning, the decision could be challenged on appeal as "perverse". The judge noted at paragraph 12 that there was no dispute that that was the correct test to apply.
8. As I read his judgment the judge decided the application before him solely on the basis of the words complained of. He also gave some consideration to an alternative argument, advanced before him on behalf of the respondents, namely that the words and picture on the front page of Love It! (or indeed on the front page of Love It! when reproduced in the News of The World) would not, and should not, be read in isolation. It was submitted that in either case the reader would appreciate the nature of the small item in the bottom corner of the front page and would properly infer, if reading it reasonably, that it would make no particular sense unless read in context, together with the article for which it was a flyer. It was submitted that on that basis there could be no doubt that the words complained of were not, and could not be, defamatory of the appellant, because the article makes it clear that the appellant is a woman in terms that provide no support for any suggestion either that she was posing as a man or that she is a transgendered or transsexual person.
9. Mr Davies conceded in this court that, if the words complained of and the article were together treated as part of one publication to be considered together, the publication would not be defamatory of the appellant. However, he submitted to the judge that whether the words should be so treated was a matter for the jury. He further submitted that there was no question of the words complained of, reproduced in the News of the World, being treated as part of one publication with the article in Love It!
10. In these circumstances the judge sensibly considered simply whether the words complained off were capable of being defamatory of the appellant as alleged in paragraphs 5 and 6 of the Particulars of Claim. He held that they were not.

The issue in the appeal

11. In this appeal Mr Davies submits on behalf of the appellant that the judge was wrong to hold that the words complained of were not capable of being defamatory of the appellant. Mr Caldecott QC, on the other hand, seeks to uphold the decision of the judge, substantially for the reasons he gave.

The correct approach

12. The correct approach in this court is that stated by Lord Phillips MR in Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 at paragraphs 5 and 6 as follows:

"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 [1998] EMLR 516, 523 per Hirst LJ and Cruise v Express Newspapers [1999] 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 [1998] EMLR 524 at 532)"

13. That approach was adopted by this court in Patterson v ICN Phototonics [2003] EWCA Civ 343, per Keene LJ at paragraph 17 and Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 6, per Simon Brown LJ at paragraph 7. Simon Brown LJ, with whom Mummery LJ and Mance LJ agreed, also adopted this statement by Sedley LJ in Berezovsky v Forbes Inc [2001] EMLR 1030, 1040:

"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 [1999] 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

14. The legal principles relevant to meaning have been summarised many times and are not in dispute. With some slight embellishment, made in the light of Mr Davies' submissions, I can take them from Mr Caldecott's skeleton argument. They are derived from a number of cases including, notably, Skuse v Granada Television Limited [1996] EMLR 278, per Sir Thomas Bingham MR at 285-7. They may be summarised in this way: (1)   The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any "bane and antidote" taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, "can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation…" (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at paragraph 7 and Gatley on Libel and Slander (10^th edition), paragraph 30.6). (8) It follows that "it is not enough to say that by some person or another the words might be understood in a defamatory sense." Neville v Fine Arts Company [1897] AC 68 per Lord Halsbury LC at 73.
15. Those are the principles applicable to the determination of meaning at a trial and thus in a jury trial by the jury. As I said earlier, on an application of this kind, it is common ground that the question is whether the words complained of are capable of the meaning or meanings complained of. Put another way, the question is whether it would be perverse to conclude that the words bear the alleged meaning or meanings.

Meaning

16. Mr Davies' submission on behalf of the appellant is simple. It is that: "BB" means Big Brother and is a plain reference to the television programme, that "BB's LISA" is a reference to the appellant having been a housemate in the Big Brother house and that "THE GEEZER" is a reference to the appellant either being or posing as a man. He submits that in giving that meaning to "LISA" the appellant is simply giving the word its dictionary meaning and the question whether it would be so understood by the reasonable reader should be left to the jury. Indeed he goes further and submits that it was perverse of the judge to reject the dictionary meaning. Mr Davies submits, in short, that when the words are taken as a whole they mean, or are at least capable of meaning, that the appellant who had been on Big Brother had posed as a man or was a transgendered or transsexual person and thus a man.
17. The judge's conclusion is summarised in paragraph 29 of his judgment as follows:

"…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'."

18. Mr Caldecott submits that the judge was correct for the reasons he gave but makes these further submissions in support of the his conclusion: (1)The magazine Love It! was published either exclusively or almost exclusively for women. This can be seen from a number of references on the front      page,     notably "sexy underwear for every reader" and "HUNKS! MACHO MECHANICS" while underneath, in smaller letters, "They can lift our bonnets any time". (2) The magazine contained accounts of real life, as shown for example by these references on the front page: "Your real life starts every Tuesday", "MORE REAL LIFE" and indeed "REALITY!" over the photograph of the appellant. (3) The words complained of were plainly a trailer for an article inside the magazine and were not a trailer for an expose of the appellant but her own story or article. Hence the reference to "My false boobs fell out…". (4) The appellant had appeared on Big Brother which would be known to the readers as a mildly exhibitionist reality TV programme. (5) The appellant was known as "The Geezer" because "geezer" rhymes with "Lisa" and because "The Geezer" appears in inverted commas. Moreover there was nothing improbable about her being known as "The Geezer" if she appeared on Big Brother, without any suggestion that she was posing as a man or had become a man. (6) The words are a trailer for a story which involved her "false boobs falling out on a date with James Hewitt", who it is submitted is, or was, a well-known lothario or ladies man. (7) The photograph is of an attractive woman without any hint that she was or had been a man.
19. Mr Caldecott submits that in all these circumstances it would not occur to anyone reading the words complained of on the cover that the story was about a woman posing as a man or about a woman who had had a sex change. I would accept those submissions. I agree with the judge that there is nothing in the words on the cover to suggest any such thing. In particular, I entirely agree with the judge that no reasonable reader of the words complained of could come to the conclusion that they were suggesting 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. Any such conclusion would be perverse.
20. I would only add this, in relation to a point made by Sedley LJ in granting permission to appeal. He said at paragraph 5:

"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".

21. There remains the appellant's case on innuendo. I have already quoted paragraph 6 of the particulars of claim. Paragraph 6 simply asserts that when the appellant appeared on Big Brother rumours were circulating that a transgendered or transsexual housemate was "about to be" introduced into the house and that it was the broadcasters of Big Brother who were spreading the rumours so as to increase interest in the programme. It is not alleged that the appellant was, or was rumoured to be, a or the transgendered or transsexual person who was to be introduced into the house. In these circumstances the judge was, in my opinion, justified in concluding that the pleaded case of innuendo adds nothing to the appellant's case of meaning and in particular that if it was alleged that a transsexual person in fact entered the house it has not been alleged, as the judge put it, at paragraph 26, that anyone believed that the appellant was the transsexual who was going to be introduced or who was introduced into the house.
22. In all these circumstances I agree with the conclusions reached by the judge as to the alleged meaning of the words complained of. It follows that it is not necessary to consider the relationship between the cover line on the front page and the article, which would have involved a consideration of the principles discussed by the House of Lords in Charleston v News Group Newspapers Limited [1995] 2 AC 65. For the reasons I have given I would dismiss the appeal.

Lord Justice Tuckey:

I agree.

Lord Justice Jacob:

I also agree.

Order: Appeal dismissed