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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Judge of the High Court)
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LOUISA DONOVAN |
Claimant |
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- and - |
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KATE GIBBONS |
Defendant |
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Victoria Jolliffe (instructed by Payne Hicks Beach) for the defendant
Hearing date: 14 October 2014
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Crown Copyright ©
HHJ Richard Parkes QC :
Defamatory or not?
Fact or comment?
(1) The statement must be recognisable as comment as distinct from an imputation of fact: Gatley para 12.7;(2) Comment is "something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc": Branson v Bower [2001] EMLR 15 at [26];
(3) The ultimate determinant is how the words would strike the ordinary reasonable reader: Grech v Odhams Press [1958] 2 QB 275, 313;
(4) The subject matter and context of the words may be an important indicator of whether they are fact or comment: Singh, above, at [26], [31].
Meaning
(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naive 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.
Libel is concerned with the meaning of words. Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words should bear different meanings to different men and that more than one meaning should be "right" conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the "right" meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the "right" meaning by the adjudicator to whom the law confides the responsibility of determining it. That is what makes the meaning ascribed to words for the purposes of the tort of libel so artificial.
Application to strike out