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The Law Column: New Year, Old Topic…


Happy New Year, and welcome to the first Law Column of 2020!

With all of these firsts, we thought that we would be different and start the year with a visit to an old favourite…the meaning of words in libel cases.

Just before Christmas, judgment was handed down in a trial of a preliminary issue relating to the meaning of a number of allegations contained in a leaflet and a letter. The claim was brought by a company which owns the freehold of a block of flats in Highgate, London.

The background is that the tenants of the flats are collectively trying to buy the freehold of the building through a legal process called enfranchisement which, hardly surprisingly, the current owner is resisting.

The claim is based on the publication of a leaflet and a letter sent to all leaseholders in the block by the Defendants in March 2018. The documents set out the business case for the leaseholders to ‘enfranchise’ the block, and they also set out responses to some earlier points made by the Claimant concerning the potential scheme.

The Claimant’s position was that both of the publications were defamatory in their entirety, and it put forward a very lengthy and detailed meaning which, it said, the ordinary reasonable reader would understand the documents to mean.

Suffice to say, the Defendant refuted the Claimant’s analysis and instead, argued that the publications were simply pieces of written advocacy in support of their case for enfranchisement. The Defendants further argued that in any event, the publications were clearly examples of honest opinion.

The parties opted to have a trial of preliminary issues, to determine the meaning of the publications complained of and whether those meanings were defamatory of the Claimant.

Mr. Justice Warby heard the application, and he determined the issue of what the publications meant, using the settled principles from a case he decided last year. Interestingly, the Judge decided that some of the meanings arising from the documents were stronger than those actually put forward by the Claimant.

In addressing the second issue of whether the meanings were defamatory at common law, the judge applied the test used by the Supreme Court last year in the case of Lachaux, namely: did the publication(s) complained of “substantially affect in an adverse manner the attitude of other people towards him, or have a tendency to do so”

The Judge found a number of elements of the meaning to be defamatory, but what is of interest to journalists is that he reiterated that just because a statement is considered defamatory at common law, it does not mean that it is actionable under statute law. The claimant company has to prove that the statements complained of have caused, or are likely to cause it serious financial loss – which is not necessarily straightforward.

The issue of serious financial loss was not considered at this preliminary hearing, so there is still a good deal of expensive litigation to take place before the claimant can proceed with the claim itself.

The final point that will have to be addressed should this case ever get to trial relates to the Defendants’ anticipated reliance upon the defence of honest opinion. This defence is one that is enshrined by the Defamation Act and has specific requirements that must be met.  The Judge gave a very detailed and thorough analysis of the publications, and he identified where the requirements were and were not met.  Overall, he found there to be a “defamatory factual core” and therefore, not capable of sustaining a defence of honest opinion.

Though from legal perspective, there is nothing here that could be characterised as ground-breaking, it is actually the procedural aspect of the preliminary issue trial that proves of most interest.

This case is a clear example of how preliminary issue trials can work as a kind of “pit-stop” for the dispute – allowing parties to gain certainty on pivotal issues and therefore re-evaluate their position and available options. This in itself is a useful tool in anyone’s armoury when facing a claim for defamation that looks as though it could go either way.

But at the same time, the judgment reveals just why libel litigation is so expensive. This legal sparring is all well and good, and it’s very helpful for the judgments in these types of cases to provide the rest of us with guidance for the future.

But the fact remains that litigation comes with a hefty price tag, and is best avoided wherever possible.