KB-2025-000232 - [2025] EWHC 1784 (KB)

The approach to determining meaning as a preliminary issue is well established. The judge reads or watches the offending publication to capture an initial reaction before reading or hearing the parties’ submissions: Millett v Corbyn [2021] EWCA Civ 567, [2021] E.M.L.R. 19 (“Millett”) at para 8.

The legal principles to be applied when determining the meaning of the words complained of were distilled by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB), [2024] 4 WLR 25 (“Koutsogiannis”) at paras 11 – 12. This distillation was approved by the Court of Appeal in Millett at para 8. I will summarise the elements that are or may be pertinent for present purposes. The Court’s task is to determine the single natural and ordinary meaning of the words complained of (para 11). This is the meaning that the hypothetical reasonable reader or viewer would understand the words to bear (para 11). The intention of the publisher is irrelevant (para 12(ii)). The hypothetical reasonable reader is neither naïve nor unduly suspicious (para 12(iii)). Over elaborate analysis should be avoided and the Court should not take too literal approach to the task (para 12(iv)). The publication must be read as a whole (including any “bane” and “antidote”) and account taken of the context in which it appeared and the mode of publication (para 12(viii) and (ix)). Sometimes, context may clothe the words in a more serious, or a weaker meaning, than would be the case if the words complained of were read in isolation (para 12(viii). No evidence beyond the publication complained of is admissible in determining the natural and ordinary meaning of the words (para 12(x)). The hypothetical reader is taken to be representative of those who would read the publication in question (para 12(xi)). In determining the single meaning, the Court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties, save that it cannot find a meaning more injurious than that pleaded by the claimant (para 12(xiii)).

Determination of the meaning of a publication also involves assessing whether the words in question convey fact or opinion. The applicable principles were summarised by Nicklin J in Koutsogiannis at paras 16 – 17. The ultimate question is how the words would strike the ordinary reasonable reader. The subject matter and context may be an important indicator of whether they are fact or opinion (para 16(iii)). The statement must be recognisable as comment, as distinct from an imputation of fact (para 16(i)). Opinion is something “which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation etc” (para 16(ii)).

As Steyn J explained in Vine v Barton [2024] EWHC 1268 (KB) at para 23, a statement is defamatory at common law if it: (a) attributes to the claimant behaviour or views that are contrary to common, shared values of our society (referred to as “the consensus requirement”); and (b) would tend to have a substantially adverse effect on the way that people would treat the claimant (“the threshold of seriousness”).