In a judgment which betrays the complete lack of familiarity the law of defamation of its panel of three the Court of Appeal has overturned decades of precedent on a key issue in defamation proceedings, which is the establishment at an early stage of the defamatory meaning/sting of a publication (the two terms being synonyms).
In today’s judgment in Simpson v MGN ( EWCA Civ 772) the Court of Appeal has invented a distinction between those two terms which is not only wrong in principle, but has the capacity to render entirely pointless early determinations of meaning in defamation claims.
The background to the judgment is a claim brought by the Leicester City footballer, Danny Simpson against MGN Limited concerning an article which it published about his relationship with Tulisa Contostavlos. This is the defamatory meaning that the article was found to bear by Mr Justice Warby:-
“By entering a romantic relationship with celebrity Tulisa Contostavlos the claimant was unfaithful to his loyal partner Stephanie Ward, with whom he was in a long-term and committed relationship, living with their daughter as a family; he did so despite Ms Ward having sacrificed her legal career to have his children, and being, as he knew, pregnant with their next child; and by doing so he callously destroyed his relationship with Ms Ward and broke up an established family unit which was soon to be joined by the child they were expecting.”
In January 2015 Warby J determined as a preliminary issue the meaning of the words complained off, and struck out MGN’s defence for justification of disclosing no reasonable grounds for defending the claim because its particulars did not meet the defamatory meaning that the article was found to bear ( EWHC 77 (QB)).
MGN sought permission to appeal against the Judge’s determination of meaning and his order striking out the defence. Christopher Clarke LJ granted permission only in relation to the latter. MGN did not renew its application in respect of the former, so the Court of Appeal was only concerned with Warby J’s striking out of its defence.
The claim which is the subject of the Court of Appeal judgment pre-dates coming to the force of the Defamation Act 2013, and so it fell to be tried under the law as it was at date of publication; the relevant defence therefore being the old Common Law defence of “Justification”, rather than the new statutory defence of “Truth”.
The “Conclusions” section of the judgment goes off the rails immediately with its heading “Meaning and ‘sting’”. The heading should have read “Defamatory meaning and ‘sting’” – or rather one or other of those terms. For the seven paragraphs of the conclusions section of the judgment Laws LJ (with whom King and Lindblom LJJ agreed) based his decision to allow the appeal on this primary premise; “The meaning [of the publication] having been found, it remains open to MGN to raise arguments as to the intensity of the libel’s sting.”  Laws LJ also says; “In fairness to the Judge, I do not consider that his conclusion on meaning was, in fact, driven by his views on the sting of the libel” .
It was clear during the course of the hearing that Laws LJ believed that the job of a judge determining the defamatory meaning of an article was independent of the trial judge’s determination of the defamatory sting.
He says this; “I accept, of course, that in some cases the meaning of the words and their defamatory sting (and its intensity) ineluctably go together; but not always.”  The practical effect of that dictum is to render early determinations of defamatory meaning/sting an entire waste of the parties’ resources, and the Court’s time, if at a subsequent trial a judge can choose to take a different view, and thereby allow a collateral challenge to the defamatory meaning arrived at by the judge as was mounted in this case.
Leaving aside the practical problems created by this judgment, the distinction made by Laws LJ is both wrong in principle and contrary to authority. In an action for defamation, the judge must determine the natural and ordinary meaning of the publication at issue according to the principles set out in Jeynes v News Magazines Limited  EWCA Civ 130. It does not matter whether the distillation exercise produces an outcome referred to as the “meaning”, “sting”, or “imputation” (the term used in section 2 of the 2013 Act). Once this is determined, it governs the rest of the action, and in particular the scope of any defence of justification or “Truth” as it now is. It is this meaning/sting/imputation which the defendant must prove to be substantially true if his defence is to succeed.
This aberrant decision of the Court of Appeal has the capacity greatly to increase the cost and delay of defamation actions. With libel actions now effectively being determined by judges rather than juries it is now common for the Court to make an early determination of the meaning borne by the statement complained of. Such a determination will often dispose of the whole claim, or will at least significantly narrow the issues. In particular it allows the Court to assess whether a pleaded defence of truth is viable. If the Court then finds that the defendant’s particulars (even if true) are incapable of proving the truth of the defamatory meaning/sting/imputation that has been ascribed to the statement, then the defence can be struck out and the cost of a futile trial of liability avoided.
Defendants will now routinely argue that theirs is not one of those cases where; “The meaning of the words and their defamatory sting (and its intensity) ineluctably go together.” As the claimant argued in seeking permission to appeal to the Supreme Court; “Accordingly, the far-reaching ramifications of this decision, and its potential to reverse the effect of a very recent statutory reform, means that this is an appeal which raises a point of law of general importance, which the Supreme Court should hear….”. The sooner the better.
Jonathan Coad acted for the Respondent, Danny Simpson, he is a partner at Lewis Silkin LLP and acts for both claimants and defendants. Follow him on Twitter @jonathan_Coad.