In libel actions, meaning is everything (or at least nearly everything).
While words can mean different things to different people, in libel the parties are concerned with finding the single meaning the words complained of bear. Meaning is important, because it will determine to a large extent what defences a defendant could viably run (for example truth or honest opinion).
Before the abolition of jury trials by section 11 of the Defamation Act 2013, it was rare for a court to decide the meaning of a publication complained of. This all changed when the new act came in, and with it a new era of preliminary issue trials in libel actions.
The intention was for these preliminary trials to function as a cost- and time-saving mechanism, with issues such as meaning being decided at any early stage. This would potentially be decisive for the litigation (whether by deciding the claim as a whole or enabling the parties to settle the remainder of the dispute).
Following the introduction of the act, the court considered that on the whole it would be best to determine the issues of meaning and serious harm together at a preliminary issue trial (serious harm being the new, higher threshold for bringing a claim in libel under the 2013 act). This approach was taken, for example, by Warby J in Ames v The Spamhaus Project, where he observed that it was ‘likely… to be preferable to address issues of serious harm … by means of preliminary issues, with any disputes as to meaning being resolved at the same time’.
The court however ultimately moved away from this approach, as it seemed that attempting to take short cuts had simply led to additional complexity, delay and cost. HH Judge Moloney QC expressed concerns in his judgment in Theedom v Nourish Training & Anor, where the preliminary issue trial on serious harm and meaning included cross-examination of both the claimant and defendant (including questions of claimant credibility). The parties’ collective costs for the preliminary issue trial alone amounted to £170,000.
Ultimately Warby J sealed the fate of joint meaning and serious harm preliminary issue trials in his judgment in Brown v Brown & anor, in which the defendants sought to have a preliminary issue trial on meaning and serious harm (among other things). Warby considered that a preliminary issue trial would not be proportionate where the trial of serious harm would raise substantial issues of fact and law which would likely require disclosure and witness statements (and inevitably require more than a one-day hearing).
By contrast, meaning’s stock as a triable preliminary issue could not have been higher. In that same judgment, Warby said: ‘It is clearly just and convenient to direct a preliminary trial of meaning and defamatory tendency. Such a trial would be short, and relatively inexpensive. It would stand a reasonable chance of bringing an end to the proceedings. Failing that, it would at least narrow the issues.’
So preliminary issue trials on meaning went from strength to strength, but what about timing? Parties were often bringing the issue of meaning before the court only after the defence had been filed, and the court was taking a dim view of that.
Nicklin J (pictured) called it ‘potentially hugely wasteful of costs’ (Morgan v Associated Newspapers Ltd) and added that if the court did not agree with the defendant’s proposed meaning, their defence may no longer be viable or require amendment. He indicated that for cases to be dealt with justly and at proportionate cost, ‘disputes as to meaning [should be] disposed of as a preliminary issue sooner rather than later’.
Nicklin J said the same thing in Bokova v Associated Newspapers Ltd, where he cautioned against the ‘spectre of hugely wasteful litigation’ and set out a requirement for the parties to prepare costs budgets for preliminary issue trials, to ensure costs were kept proportionate. Nevertheless, the benefits of bringing the issue before the court at an early stage were obvious, because ‘even if the claim cannot be settled at that stage, there remain significant benefits for the future conduct of the case. A defendant would know, for example, what would be required for any truth defence to have a real prospect of success’.
Nicklin J went even further in Poroshenko v BBC, where he ordered that the claimant pay the defendant’s costs of the application on the basis that the claimant’s solicitors had adopted a ‘wasteful and obstructive stance’.
However, just as it seemed that preliminary issue trials on meaning were now the done thing, Nicklin J refused permission for one in Mohammed Dahlan v Middle East Eye Ltd, stating that a preliminary issue trial will have little to no benefit where a public interest defence is the principal defence being run (unless the meaning was not found to be defamatory at all), because meaning does not set the parameters of that defence in the same way as a defence of truth.
So where does that leave things? In short, as long as they have some tangible benefit for a case’s future conduct, preliminary issue meaning trials are here to stay.
Helena Shipman is a senior associate at Carter-Ruck
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