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Law Column: But what does it mean?

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The importance of what something means in the context of a defamation case cannot be understated.  The strength of a claim hinges on the “natural and ordinary” meaning attributed to the words complained of.

Often a significant point of dispute in defamation claims, the claimant will say that the words carry a meaning of X, whereas the publisher will say that it means Y.  In times gone by the question of the actual meaning of the words was a matter for a jury to decide; but since the introduction of the Defamation Act 2013 trials by jury have been abolished for defamation cases and it is now open to either party to opt for meaning to be determined by the court as a preliminary issue – i.e. before going to the effort of preparing for a full trial.

There are clear cost benefits to opting for a trial of meaning as a preliminary issue; primarily that it prevents a defendant from wasting time and money by preparing a defence based on an interpretation of meaning which could change later in the proceedings.

Though the option of determining meaning as a preliminary issue has been open to parties for some time now, it has been noted that in many cases the option to do so is not being taken up, leading to costly amendments to prematurely filed defences being required.

A series of recent cases in the High Court have shone a light on the way that determining meaning is to be approached from a case management perspective, and they have a suggested a change in practice which could have a significant effect on the way that defamation claims are administered in future.

The most prominent of these decisions was the case of Morgan v Associated Newspapers Ltd [2018] EWHC 1850 (QB).  Steve Morgan CBE, the founder of housebuilder Redrow, sued the Daily Mail for defamation over an article published in print and online, which he claimed carried the meaning that he had exploited shareholder schemes to purchase properties at a discounted rate which should have been sold to people in need of affordable housing.

At the trial of preliminary issue to determine the meaning of the article, the judge, Mr Justice Nicklin, noted that the Defendant had filed a full defence despite the fact that the issue of meaning had yet to be determined by the Court.

Branding this as “hugely wasteful of costs” , Nicklin J went on to note that “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…the overriding objective is to deal with cases justly and at proportionate cost.  All of those point, clearly, to disputes as to meaning being disposed of as a preliminary issue sooner rather than later”.

Accordingly, in a claim where meaning is in dispute, the expectation is now that the issue will be determined at a trial of preliminary issue at the earliest possible opportunity, and certainly before a defence is filed.  If such action is resisted by either party, then they are likely to be exposed to serious adverse costs as a consequence.

This renewed focus on early determination of meaning from a case management perspective once again highlights the importance of accuracy and clarity.  Trials of meaning as a preliminary issue can represent an opportunity to shut down claims lacking in merit before extensive costs have been incurred, provided that the defendant is confident in the meaning he attributes to the words complained of.

All that remains to be seen is whether this new suggested practice will be embraced by claimants and their lawyers with open arms; thus helping to curb the ever spiralling costs associated with defamation proceedings.

Only time will tell…

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  • March 6, 2019 at 2:05 pm
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    I was always taught by seniors that it wasn’t what you thought you meant that mattered, but what the general public thought you meant. Some of the comments on social media are so defamatory I wonder how people get away with them. Some nice money there for a sharp solicitor!

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