Factual and Procedural Background
This claim for defamation arises from a statement ("the Statement") made by the Defendant during an interview on a political programme on 23 September 2018. At the time, the Defendant was the leader of the Opposition. The Plaintiff is a blogger and commentator known for attending and reporting on meetings concerning Israel and Palestine. The Statement related to a speech made by the Defendant in 2013, where he referred to disruptive behaviour by certain individuals at a parliamentary meeting involving the Palestinian Ambassador. The Plaintiff alleges that the Statement was defamatory of him, causing serious harm to his reputation, despite not being named directly.
The claim was issued on 10 June 2020. By order dated 26 March 2020, a trial was directed on three preliminary issues: the natural and ordinary meaning of the Statement including reference and innuendo; whether the meaning conveyed fact or opinion; and whether the meaning was defamatory at common law. The issue of serious harm was not ordered for trial at this stage.
The trial of preliminary issues was conducted remotely on 23 June 2020. Both parties submitted written evidence but no oral evidence was called. The main factual dispute concerned whether the Statement referred to the Plaintiff, considering extrinsic materials including five original articles and five additional articles which the Plaintiff sought to rely on by way of amendment shortly before the trial.
The Court refused the Plaintiff's application to amend the particulars of claim to include the new articles, primarily due to the lateness of the application and the failure to provide an adequate explanation for delay, particularly given the short limitation period for defamation claims.
Legal Issues Presented
- What is the natural and ordinary meaning of the Statement, including whether it refers to the Plaintiff and any reference innuendo?
- Does the meaning of the Statement convey a statement of fact, opinion, or a mixture of both?
- Does the meaning of the Statement convey a defamatory tendency at common law?
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff argued that the Statement referred to him by virtue of extrinsic facts contained in certain publications, and that a reasonable reader with knowledge of those would identify him as the subject.
- The Plaintiff contended that the Statement meant he attended meetings to cause disruption, preventing orderly discussion, and was very abusive to the Palestinian Ambassador, causing him distress.
- The Plaintiff submitted that the allegations were factual and defamatory, imputing serious misconduct.
- The Plaintiff sought to rely on additional articles to support reference, but the application to amend was refused.
Defendant's Arguments
- The Defendant argued that the Statement did not refer to the Plaintiff to reasonable people without special knowledge and that the issue of whether anyone with special knowledge actually understood the Statement to refer to the Plaintiff was not relevant at this stage.
- The Defendant submitted that the Statement expressed opinion rather than fact, characterising the behaviour as "disruptive" or "incredibly disruptive," which are evaluative terms.
- The Defendant contended that the Statement did not have a defamatory tendency as it did not lower the Plaintiff in the estimation of right-thinking members of society and fell below the common law threshold of seriousness.
- In opposing the amendment application, the Defendant relied on the lateness of the application and the lack of evidence justifying delay, further arguing that the new causes of action would raise new factual issues.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Morgan v Odhams Press Ltd [1971] 1 WLR 1239 |
Test for reference in defamation: whether reasonable people knowing extrinsic facts would believe the statement referred to the claimant. |
Applied to determine whether the Statement referred to the Plaintiff based on extrinsic publications. |
| Lachaux v Independent Print Ltd [2016] QB 402 |
Clarification of reference and identification principles; objective test of whether words refer to claimant; no need to prove actual readers with special knowledge at preliminary stage. |
Guided the Court in limiting the issue to whether a reasonable person with relevant extrinsic knowledge would identify the Plaintiff. |
| Knupffer v London Express Newspaper Ltd [1944] AC 116 |
Words need not name claimant but must be understood to refer to claimant by reasonable people. |
Supported the principle that identification can arise without explicit naming. |
| David Syme & Co v Canavan (1918) 25 CLR 234 |
Test for identification by reasonable persons acquainted with claimant. |
Used to affirm the standard for reference innuendo. |
| Grubb v Bristol United Press Ltd [1963] 1 QB 309 |
Distinction between libel cause of action and innuendo cause of action requiring extrinsic facts. |
Applied in considering that amendment to add new extrinsic facts would create new causes of action. |
| Lokhova v Longmuir [2016] EWHC 2579 (QB) |
Principles governing court's discretion to allow amendment adding new claims. |
Considered in assessing whether to allow amendment to plead new articles. |
| Economou v De Freitas [2016] EWHC 1218 (QB) |
Similar principles on amendment and limitation in defamation claims. |
Considered alongside Lokhova in amendment application. |
| Bewry v Reed Elsevier [2014] EWCA Civ 1411 |
Emphasises the short limitation period for libel and the exceptional nature of disapplication. |
Supported the Court's approach to the amendment application and limitation considerations. |
| Fox v Boulter [2013] EWHC 1435 (QB) |
Discussion of innuendo meaning and extrinsic facts. |
Referenced in relation to the approach to reference, though the Court preferred Lachaux. |
| Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) |
Principles distinguishing fact and opinion in defamation context. |
Guided the Court's analysis on whether the Statement conveyed fact or opinion. |
| Butt v Secretary of State [2019] EWCA Civ 933 |
Comprehensive review of fact vs opinion and fair comment defences. |
Particularly relied upon by Defendant in submissions on fact or opinion. |
| Tinkler v Ferguson [2019] EWCA Civ 819 |
Consideration of whether terms like "disruptive" are factual or opinion statements. |
The Court found the case unhelpful for the present facts and distinguished it. |
| Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB) |
Common law threshold of seriousness in defamation claims. |
Relied on by Defendant to argue the Statement fell below seriousness threshold. |
| Brown v Bower No. 2 [2017] EWHC 2637 (QB) |
Contextual approach to defamatory tendency and societal views. |
Used to support Defendant's argument regarding political context and lack of defamatory meaning. |
| Monroe v Hopkins [2017] EWHC 2637 (QB) |
Modern approach to defamatory meaning focusing on behaviour contrary to shared societal values. |
Applied by the Court in assessing defamatory tendency and seriousness. |
| Starr v Ward [2015] EWHC 1987 (QB) |
Considerations on amendment and limitation in defamation claims. |
Referenced in the context of amendment application. |
Court's Reasoning and Analysis
The Court first addressed the issue of reference, applying established principles from leading authorities that identification in defamation requires the claimant to plead and prove extrinsic facts which would cause reasonable people with such knowledge to believe the statement referred to the claimant. The Court agreed with the Plaintiff that the question at this stage is whether a reasonable person with the relevant extrinsic knowledge would identify the Plaintiff, not whether actual viewers had such knowledge.
Regarding the proposed amendment to include additional extrinsic articles, the Court found that these would add new causes of action and thus constitute new claims subject to limitation rules. The Plaintiff failed to provide an adequate explanation for the delay in seeking to rely on these articles, which were largely within his knowledge or control. Consequently, the Court refused permission to amend.
Turning to the original extrinsic materials, the Court found that a reasonable reader in possession of each of the five original articles would identify the Plaintiff as one of the persons referred to in the Statement. The Court rejected the Defendant's argument about memory fade given the short interval between publication and broadcast.
On the issue of meaning, the Court considered the submissions of both parties but found the Plaintiff's suggested meaning overly broad and inferential, while the Defendant's meaning understated the seriousness of the conduct described. The Court concluded that the Statement meant that the Plaintiff behaved disruptively at a parliamentary meeting to the extent that police wished to remove him, was abusive to the Palestinian Ambassador causing distress, and that the Defendant spoke in defence of the Ambassador. The conduct was linked to disagreement with the Ambassador's views.
In determining whether the Statement conveyed fact or opinion, the Court applied principles from Koutsogiannis and Butt, concluding that the Statement contained factual allegations rather than mere opinion. The description of behaviour as "disruptive" and "very abusive" implied specific conduct without specifying details, amounting to a statement of fact.
On defamatory tendency and seriousness, the Court rejected the Defendant's submissions that the Statement was not defamatory or fell below the common law threshold of seriousness. The Court applied a modern approach focusing on behaviour contrary to shared societal values, finding that abusive behaviour causing distress and police involvement was serious and defamatory. The political context did not negate the defamatory nature. The Statement met the Thornton threshold for seriousness.
Holding and Implications
The Court found in favour of the Plaintiff on the preliminary issues, holding that:
- The Statement referred to the Plaintiff by reasonable viewers possessing the relevant extrinsic knowledge.
- The Statement bore a defamatory meaning as identified by the Court.
- The Statement contained factual allegations rather than mere opinion.
- The defamatory meaning met the common law threshold of seriousness.
- The Plaintiff's application to amend the claim to include reliance on additional extrinsic articles was refused due to delay and limitation considerations.
The direct effect of this decision is that the Plaintiff's claim proceeds on the basis of the original pleadings and extrinsic materials. No new precedent was established beyond the application of established defamation principles to the facts. The refusal to amend limits the scope of the Plaintiff's case to originally pleaded causes of action.