Factual and Procedural Background
This opinion concerns the Defendant publisher's interlocutory appeal against two rulings made by the first instance judge at a pre-trial review in a libel action. The rulings addressed (1) the meaning of the words complained of in the allegedly defamatory article and (2) the admissibility and relevance of certain hearsay evidence. The trial was scheduled for a three-week hearing starting 1 December 2003. Permission to appeal was granted with hesitation due to logistical inconvenience but on the basis that genuine issues of principle arose from the two rulings.
The libel claim arises from an article published by the Defendant on 6 February 2002 in a widely circulated newspaper, which reported that certain Saudi bank accounts were being monitored by the Saudi Arabian Monetary Authority (SAMA) at the request of US law enforcement agencies, focusing on those with potential terrorist ties. The Claimants allege that the article defamed them by implying they were reasonably suspected of terrorist ties and funnelling funds to terrorist organisations. The Defendant disputes that the words are defamatory or contends for a lesser defamatory meaning and relies on a defence of qualified privilege. There is no plea of justification.
The first instance judge ruled that the words complained of were not capable of bearing a lesser defamatory meaning than "reasonable grounds to suspect" the conduct alleged and dismissed the Defendant's application to exclude hearsay evidence served on behalf of the Claimants. The Defendant appealed both rulings.
Legal Issues Presented
- Whether the words complained of in the article are capable of bearing a lesser defamatory meaning than "reasonable grounds to suspect" the Claimants of terrorist ties and funnelling funds to terrorist organisations.
- Whether certain hearsay evidence served by the Claimants is admissible and relevant in the absence of a plea of justification, particularly in relation to the defence of qualified privilege and aggravated damages.
Arguments of the Parties
Appellant's Arguments
- The words complained of are not defamatory or, alternatively, are capable only of a lesser defamatory meaning amounting to grounds merely for investigation rather than reasonable suspicion of misconduct.
- The appellant relies on the distinction between levels of defamatory meaning established in prior case law, contending the article conveys only the lowest tier of gravity.
- Regarding hearsay evidence, the appellant argues that the evidence should be excluded as irrelevant to the defence of qualified privilege, relying principally on precedent that truth or falsity is not relevant to qualified privilege.
- The appellant contends that the ruling in a parallel case involving different parties (Al Rajhi) should not be determinative in the present case.
Appellee's Arguments
- The words complained of bear the natural and ordinary meaning that the Claimants were reasonably suspected of terrorist ties and funnelling funds to terrorist organisations.
- The Claimants seek to adduce hearsay evidence to rebut the Defendant's evidence, particularly to challenge the accuracy of the Defendant journalist's account and to support claims for aggravated damages.
- The hearsay evidence is relevant and admissible to undermine the defence of qualified privilege by showing the central allegation of monitoring is false.
- The Claimants argue that the hearsay evidence rebuts specific assertions made by the Defendant's witnesses and is not introduced to show what further inquiries might have revealed, thus distinguishing this case from the precedent relied upon by the appellant.
- The Claimants maintain that the presumption of falsity of defamatory words should apply in the absence of a plea of justification, and that this presumption is not incompatible with human rights law in this context.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Berezovsky v Forbes Inc [2001] EMLR 1030 |
Approach to determining the range of legitimate meanings of defamatory words; exercise in generosity to the possible meanings a jury could reasonably find. |
The court applied this approach to review the first instance judge's ruling on meaning, considering whether the judge had unduly restricted possible meanings. |
| Patterson v ICN Phototonics [2003] EWCA Civ 343 |
Reluctance of appellate courts to overturn interlocutory findings on defamatory meaning unless the judge was clearly wrong or ruling unsustainable. |
Supported the court’s careful review of the first instance judge’s ruling on meaning, emphasizing deference but allowing intervention where appropriate. |
| Gillick v BBC [1996] EMLR 267 |
Tests for assessing defamatory meaning at interlocutory stages. |
Referenced as part of the established legal framework guiding the judge’s ruling on meaning. |
| Mapp v News Group Newspapers Ltd [1998] QB 520 |
Principles on delimiting possible meanings of defamatory words before trial. |
Used to justify the judge’s approach to pre-trial ruling on meaning and the court’s review of that approach. |
| Lucas-Box meanings (from case law) |
Concept of lesser defamatory meanings pleaded in justification defences. |
Considered in relation to whether lesser meanings were available despite no plea of justification in this case. |
| Bennett v News Group Newspapers [2002] EMLR 39 |
Classification of tiers of defamatory meaning. |
Applied in assessing the gravity of meanings and distinguishing between reasonable suspicion and mere grounds for investigation. |
| Chase v News Group Newspapers [2003] EMLR 218 |
Further discussion of tiers of defamatory meaning and their legal significance. |
Used to clarify the levels of defamatory imputations and to support the court’s nuanced approach to meaning. |
| GKR Karate v Yorkshire Post (No. 1) [2000] EMLR 396 |
Limits on relevance of truth or falsity to qualified privilege and admissibility of hearsay evidence. |
The court distinguished this precedent to allow hearsay evidence for rebutting specific factual assertions rather than to challenge source reliability or truthfulness generally. |
| Reynolds v Times Newspapers Ltd [2001] 2 AC 127 |
Criteria for establishing qualified privilege in defamation cases. |
Guided the court’s consideration of the defence of qualified privilege and the role of evidence in assessing it. |
| Bonnick v Morris [2002] EMLR 827 |
Recognition of ambiguity of language and possibility of multiple meanings in defamation. |
Supported the court’s view that the article could bear more than one defamatory meaning, relevant to qualified privilege defence. |
| Lewis v Daily Telegraph [1964] AC 234 |
Distinction between levels of defamatory imputations. |
Referenced in analysis of the difference between suspicion and investigation levels of defamatory meaning. |
| Alexander v Arts Council of Wales [2001] 1 WLR 1840 |
High threshold for excluding possible defamatory meanings from jury consideration. |
Applied in emphasizing the judge’s limited role in excluding meanings and the necessity of avoiding perversity in rulings. |
| Kingshott v Associated Kent Newspapers Ltd [1991] 1 QB 88 |
Caution against withdrawing issues from the jury. |
Noted in the court’s cautionary approach to restricting jury consideration of meaning. |
Court's Reasoning and Analysis
The court carefully examined the first instance judge’s rulings on the two issues: meaning and admissibility of hearsay evidence.
Regarding the meaning of the words complained of, the court reiterated the established legal approach that the judge’s role is to determine as a matter of law the range of meanings that the words are capable of bearing, ensuring that any exclusion of possible meanings meets a high threshold of perversity. The court emphasized that the judge’s ruling should be an exercise in generosity to the possible meanings a jury might reasonably find, not parsimony.
The court noted that the first instance judge had adopted a meaning of "reasonable grounds to suspect" terrorist ties and funnelling of funds, reflecting a middle tier of defamatory meaning. However, the court found the judge erred in ruling out lesser defamatory meanings that might suggest only grounds for investigation or monitoring without actual misconduct. The court considered the article’s language and context, including references to "potential terrorist ties" and "a warning to people," and concluded that it was open to the Defendant to invite the jury to find a lesser defamatory meaning consistent with mere investigation or monitoring rather than reasonable suspicion of knowing or negligent involvement.
On the admissibility of hearsay evidence, the court acknowledged the general principle from GKR Karate that truth or falsity is irrelevant to qualified privilege and that hearsay evidence should not be admitted solely to challenge the reliability of sources or to speculate on further inquiries. Nonetheless, the court accepted the first instance judge’s reasoning that in this case, the hearsay evidence was relevant and admissible to rebut specific factual assertions made by the Defendant’s witnesses, particularly the journalist’s account of conversations with confidential sources. The evidence was also relevant to the Claimants’ claim for aggravated damages.
The court found no inconsistency in admitting this evidence for these purposes despite the absence of a plea of justification. The court also noted that questions about the evidential weight and effectiveness of the hearsay evidence were properly matters for the trial judge to manage.
In summary, the court allowed the appeal in respect of the ruling on meaning, permitting the possibility of lesser defamatory meanings going to the jury, but dismissed the appeal against the ruling admitting the hearsay evidence.
Holding and Implications
The court allowed the appeal in part and dismissed it in part.
The holding was that the first instance judge erred in ruling that the words complained of were not capable of bearing a lesser defamatory meaning than "reasonable grounds to suspect." The Defendant is entitled to invite the jury to consider lesser meanings consistent with mere investigation or monitoring rather than actual suspicion of misconduct. This decision reaffirms the high threshold for excluding possible defamatory meanings from jury consideration and underscores the importance of allowing ambiguity and multiple reasonable interpretations at trial.
Regarding the hearsay evidence, the court upheld the first instance judge’s decision to admit it for the limited purpose of rebutting specific factual assertions and supporting aggravated damages, even in the absence of a plea of justification. This confirms that hearsay evidence may be admissible in defamation cases to challenge the accuracy of the defendant’s narrative and to test the defence of qualified privilege.
The direct effect is that the trial will proceed with the contested meanings and hearsay evidence considered by the jury. No new precedent was set beyond clarifying the application of existing principles to the facts of this case.