This was the defendant’s application to amend its defence in a libel claim against the publishers of the Daily Mail. The claim concerned an article published on 24 August 2017 with the headline “Building tycoons using staff discounts to snap up homes meant for families”.
The hearing of the application followed a trial of the preliminary issues of meaning and whether the allegations were fact or opinion. He identified three meanings which are set out at paragraph  of the judgment, finding that the third (that “the Claimant had exploited his position to line his own pockets in a greedy, unethical and morally unacceptable way”) was defamatory at common law, and that it was a statement of opinion .
A defence had been pleaded prior to the trial of meaning, in which the defendant admitted “that the statements complained of meet the threshold in s.1(1) of the 2013 Act as defined in Lachaux v Independent Print Ltd”. By its amendment application, the defendant sought to amend the defence to substitute that admission with a denial that the statements complained of conveyed a serious defamatory imputation.
This was on the basis that the statement complained of was recognisably one of opinion and was not therefore sufficiently harmful to cross the threshold of seriousness under s.1(1) .
The meaning identified by the Judge was, in his view, sufficiently serious to give rise to a inference of serious reputational harm . Accordingly, it was unnecessary to determine the defendant’s application (as the amendment would have no purpose) .
The starting point for Nicklin J’s analysis is the fact that a defamatory opinion is still capable of causing harm to reputation. As he notes, there would otherwise be no need for the defence of honest opinion under s.3 of the 2013 Act .
Nicklin J identified the following factors as relevant to the court’s assessment of serious harm in opinion cases :
- The gravity of the defamatory meaning;
- The gravity of the opinion or criticism expressed of the claimant;
- Context and presentation, including whether the criticism is made expressly or by implication;
- Whether the opinion is clearly presented to the reader as such (which “may well mitigate its defamatory impact”);
- The source of the opinion expressed: whether s/he appears authoritative, or someone whose view the reader is likely to discount in favour of their own assessment;
- Whether the criticism has been adopted by the publisher (whether it has ‘put its weight’ behind it).
On the facts of this case, the criticism – which had a “clear flavour of exploitation of the less well-off” was “very far from trivial”. It was based on the views of three individuals whose views would not be discounted by a reader, and no alternative perspective was offered in the article which might give readers pause to consider their own views. In addition, the newspaper had endorsed the opinion, such that “any mitigating effect arising from the clear separation of opinions from allegations of fact is therefore reduced” .
These factors took the seriousness of meaning above the threshold in s.1.
Settling defences prior to the determination of meaning
Defendants in defamation claims will wish to note Nicklin J’s expression of concern about the practice of settling a defence prior to trials of preliminary issues (and particularly trials of meaning).
Noting that this was the second case in a month in which a defence had been filed prior to meaning being determined by the court, Nicklin J made clear his view that – following the abolition of jury trials – meaning can be determined, in most cases, as soon as the particulars of claim are served, and that it may be “hugely wasteful of costs for a defendant to plead a full defence if meaning is in dispute”.
It was not a Judge’s place “to issue practice directions”, but “consistent with the overriding objective the parties must consider whether the expense of a defence is justified before the court has ruled on meaning if meaning is disputed”. In Nicklin J’s view, that overriding objective points “clearly, to disputes as to meaning being disposed of as a preliminary issue sooner rather than later” .
Sarah Palin, instructed by Wiggin LLP, appeared for the Defendant.
The judgment is available here.