Packham v Wightman & Ors (Preliminary Issues)

Factual and Procedural Background

This opinion concerns a trial of preliminary issues regarding the meaning of various articles, videos, and tweets published between April 2020 and November 2021. The Plaintiff seeks damages for defamation based on these publications. The publications involve 19 separate items: nine articles published online by Company A Magazine, two videos uploaded to a video-sharing website, and eight tweets linking to the articles or videos. The content centers on fundraising efforts by the Plaintiff for a wildlife sanctuary operated by a charitable entity on an island location, specifically focusing on statements made by the Plaintiff about the treatment and rescue of tigers formerly owned by circuses.

Procedurally, a Master directed a trial of preliminary issues to determine the natural and ordinary meanings of the statements, whether those meanings were defamatory at common law, whether they contained statements of opinion under the Defamation Act 2013, and if so, whether the basis of such opinions was indicated. The Plaintiff complied with Civil Procedure Rules Practice Direction 53B in setting out imputations, but the Defendants' defences did not comply fully, and applications to amend were outstanding.

Legal Issues Presented

1. What is the natural and ordinary meaning of each of the complained-of publications?
2. Are the statements, in the meanings found, defamatory of the Plaintiff at common law?
3. Do the statements, in the meanings found, amount to statements of opinion within the meaning of section 3(2) of the Defamation Act 2013?
4. If any statements are opinions, do they indicate the basis of such opinion for the purposes of section 3(3) of the Defamation Act 2013?

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff advocates an impressionistic approach to meaning, especially for tweets and videos, relying on authoritative case law emphasizing the perspective of the hypothetical reasonable reader.
• The Plaintiff submits that some publications engage the "repetition rule," meaning that repeated accusations carry a stronger defamatory meaning.
• Each tweet contains a hyperlink that a reasonable reader would follow to understand the full defamatory context.
• The Plaintiff contends that the Defendants’ proposed meanings are belated attempts to sanitize and marginalize the defamatory sting and that the publications are scathing and defamatory, with no neutral or unanswered questions.

Defendants' Arguments

• The Defendants provide alternative meanings for the publications, accepting some are "score draws" where meanings align with the Plaintiff’s and are not contested.
• They emphasize that some Defendants merely re-tweeted content and had no editorial control, questioning the narrow focus on meanings rather than underlying facts or defences such as truth.
• The Defendants assert that the Plaintiff misused his public role to defraud the public in fundraising and do not shy away from this central contention.
• They rely on the presence of mitigating features in the publications, such as rhetorical questions, references to the need for external clarifications, and offers of right to reply, to argue that the publications are not "all bane and no antidote."
• The Defendants identify specific textual features in each article and tweet that, in their view, mitigate the defamatory impact by indicating uncertainty or opinion rather than factual assertion.
• They contend parts of the publications amount to expressions of opinion rather than statements of fact and have provided marked-up copies to delineate these boundaries.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court rejected the Defendants' argument that determining meaning separately and preliminarily was impossible or improper. It emphasized that meaning is routinely determined as a preliminary issue and that this process was agreed by the parties. The Court reviewed the publications ahead of considering parties’ arguments.

The Court did not rule on the meaning of publications where there was no dispute ("score draw" publications) and accepted the Plaintiff’s meanings as uncontested for those.

For the contested publications, the Court assessed the textual context, including rhetorical questions and references to external clarifications, and found that these features did not mitigate the defamatory sting. The questions were rhetorical devices with implied answers, reinforcing the defamatory meaning.

The Court found the essential and common theme across the publications to be that the Plaintiff dishonestly raised charitable funds by falsely claiming that tigers had been mistreated and rescued, whereas in fact they had been well-treated and donated.

The Court concluded that the meanings ascribed to each publication were defamatory at common law. While some parts of the publications, read in isolation, expressed opinion, these were ancillary and did not undermine the overall defamatory factual assertions. None of the meanings were statements of opinion under the Defamation Act 2013.

The Court made directions for amendments to the pleadings to reflect the meanings found and for a case management conference to define the scope of future proceedings.

Holding and Implications

The Court held that the meanings set out in the judgment for each publication are the natural and ordinary meanings and that these meanings are defamatory of the Plaintiff at common law. The meanings are statements of fact rather than opinion.

The direct effect of this decision is that the pleadings must be amended to reflect these meanings, and the Defendants must amend their defences accordingly to comply with procedural rules. A case management conference will be held to manage subsequent stages of the litigation.

No broader legal precedent was established beyond the application of existing defamation principles to the facts of this case.