As I’ve said before in the Law Column, when considering meaning in the context of defamation, it isn’t what you think the words mean that is important, it’s more about what others will think you meant.
A recent case out of the High Court has emphasised the importance of this point, and more specifically serves as a reminder that it isn’t always a choice between the contending meanings advanced by the Claimant and Defendant. Judges themselves have the power to determine a defamatory meaning of their own – subject to certain conditions.
This case arose from an article published by the Times both online and in print in July 2017 entitled “Grenfell cladding boss is a government adviser” (“the Article”). The Article named the Claimant, Mark Allen, and reported his position as technical director employed by Saint-Gobain, the company involved in the manufacture of the external cladding on Grenfell Tower, alongside his membership of the government committee that advises on Building Regulations (“BRAC”).
The Claimant originally argued that the article suggested corruption on his part, later amending this, following the issue of proceedings to a double-stranded meaning that:
- the Claimant was personally responsible for the design, specification and manufacture of the external cladding product used on the Grenfell Tower building; and
- following the fire at Grenfell Tower, the Claimant’s position as a member of BRAC given his employment by Saint-Gobain, was wrong and a grave conflict of interest.
In contrast the Defendant argued that the Article bore a different, non-defamatory meaning, namely that there is concern that Building Regulations in the United Kingdom are not fit for purpose, and that in the circumstances the appointment to BRAC of individuals with senior roles in the construction industry may not be appropriate.
The Judge in this case, Mr Justice Warby, did not agree with either of the pleaded meanings advanced by the parties, finding the first strand of the Claimant’s pleading meaning to be “strained, forced and unreasonable” and characterising the Defendant’s approach as underplaying the “implications of the reporter’s choice of words”.
As such, Warby J engaged the Court’s power to find an alternate meaning in circumstances such as this, and in doing so provided useful clarification of the two limiting principles applicable in relation to this power. Firstly, that the Court cannot find a meaning more injurious than the Claimant’s pleaded meaning i.e. they are not permitted to unilaterally increase its severity, and secondly, that the Court should be slow to formulate a different meaning to that advanced by the Claimant, particularly in cases such as this, where the Claimant has formulated a number of different meanings but has never advanced the one favoured by the Court.
Following consideration of the arguments put forward by both parties, Warby J determined that the Article bore the meaning that the Claimant had “misconducted himself by remaining on the BRAC” and “placed himself in a situation of conflict of interest”. Warby J further held that this meaning was defamatory. The case remains ongoing.
What is of particular interest in this case to legal practitioners and the press alike is the conceptual distinction drawn between an imputation and an inference. Acknowledging that the two terms are often used interchangeably, Warby J noted that there is a definitive difference in so far as an imputation refers to the meaning flowing directly from the words used, as opposed to an inference which requires the reader to determine their own meaning through deductive reasoning. The Judge held that it is the former that should be considered when determining the issue of meaning to avoid arriving at an unreasonable conclusion.
In practice this means that when considering a piece of writing pre-publication, what is most important in the context of any potential defamatory meaning is what is imputed by the words expressly stated.
In other words, be sure to say what you mean as reliance on inference is a risky business indeed…