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

A claim in libel cannot succeed if a reasonable reader or viewer would not understand the statement complained of to bear a defamatory meaning about the claimant: Dyson v Channel Four Television Corpn [2023] EWCA Civ 884, [2023] 4 WLR 67 (“Dyson”) at para 33.

Giving a joint judgment, Dingemans and Warby LJJ went on to explain that there are two main ways in which a claimant could be proved to be the person identified or referred to in the words in question. The first way is if “the claimant is named or identified in the statement or where the words used would reasonably lead persons acquainted with the claimant to believe that he was the person referred to” (para 34). The second way, known as “reference innuendo”, is where a claimant is identified by particular facts known to individuals. The particulars facts need to be pleaded in the Particulars of Claim and the issue of identification decided on the facts found to be proved (para 35).

The Court of Appeal was only concerned with the first of these two ways in Dyson. Dingemans and Warby LJJ explained that in deciding this issue, the Court must place itself in the position of the hypothetical reasonable reader and the approach to identifying the natural and ordinary meaning, summarised in Koutsogiannis (para 55 above), applies, save in one respect, namely:

“37.

…For the purpose, however, of determining identification or reference…the hypothetical reader is taken to be ‘acquainted with’ the claimant…In other words, the court imputes to the hypothetical viewer some degree of knowledge about the claimant which need not be found within the statement of which complaint is made.” (Emphasis in original.)

Their Lordships explained that the “acquainted with” test was endorsed by the House of Lords in Knupffer v London Express Newspaper Ltd [1944] AC 116, where it was said that if a plaintiff (now a claimant) is not named, the test to decide whether the words used refer to him is “whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to” (para 38).

Dingemans and Warby LJJ went on to acknowledge that to apply the hypothetical reader or viewer who is acquainted with the claimant test, will likely involve consideration of some facts extrinsic to the words complained of (para 41). They explained that the test is “both objective and abstract”; the Court is not engaged in an investigation of what actual viewers subjectively knew about the claimant or who they took the statement to be about (para 42). The “right way to do this is to consider the nature and content of the statement complained of and the attributes of the claimant which would be known to the hypothetical acquaintance” (para 43). Their Lordships added:

“44.

Where there is room for doubt or dispute about whether the claimant has been identified or referred to…it becomes necessary to consider the attributes of the claimant the hypothetical viewer, acquainted with the claimant, would be deemed to know. The onus must of course lie on the claimant to identify those attributes. The starting point must be to plead the case. This is normally done by way of the introductory averments in the particulars of claim, as it was here.”

In Dyson, the parties were agreed about the attributes of the claimant that a person acquainted with them would know. Their Lordships indicated that they knew of no case in which the Court had been required to resolve a factual dispute about what a person acquainted with the claimant would know (para 45). They continued:

“46.

Having said that, it is important to emphasise that if ever there is a need for an evidential inquiry in a case which is not a reference inuendo, it will be a factual inquiry into the attributes of the claimant known to the reasonable reader or viewer acquainted with the claimant, and not what any person actually knew or thought…

47.

It is not necessary to reach any general conclusion about the amount of detail which the hypothetical acquaintance would know about the claimant. No doubt the answer will depend upon the context. The authorities suggest that in the case of a company, the person acquainted with the claimant would know when it was incorporated and the general nature of its business activities…It seems likely that in the case of an individual, their age and other outwardly obvious characteristics would be known. We would be inclined to agree with Mr Tomlinson KC that the hypothetical reader or viewer is not to be considered omniscient or to know full details about the claimant…”

The second way of establishing that the words complained of referred to the Claimant was summarised by Collins Rice J in Bridgen v Hancock [2025] EWHC 926 (KB) (“Bridgen”) as follows:

“14.…The second ‘reference innuendo’ arises where at least some readers of the alleged libel, because of particular facts known to them, are able to put two and two together and identify what has been published as being about the claimant.”

Rice Collins J also emphasised that, “Libel pleadings must identify which basis, or bases, are relied on, and the alleged facts supporting that basis” (para 14).

A cause of action based on a reference innuendo is a distinct cause of action from that founded on the natural and ordinary meaning of the words complained of: Fulham v Newcastle Chronicle and Journal Ltd [1971] 1 WLR 651, Lord Denning MR at 654H. In terms of what must be pleaded, Lord Denning indicated at 655B-D, that in an inuendo case, the pleading must specify the particular person or persons to whom the words were published and the special circumstances known to those persons that are relied upon. The contemporary position reflects the earlier case law. In BrewDog plc v Frank Public Relations Ltd [2020] EWHC 1276 (QB) at para 35, Nicol J confirmed that the special facts relied upon should be pleaded, along with the identity of the publishees who had knowledge of the special facts and, where relied upon, any inference that the publishees would have known the specific facts and the basis upon which the pleader invites this inference to be drawn.