Identifying a claimant to a libel action

On 31 October, Mr Justice Nicklin handed down his judgment following a preliminary issues hearing in the libel claim brought by Sir James Dyson, Dyson Technology Ltd and Dyson Ltd against Channel Four Television Corporation and Independent Television News Ltd. Nicklin J found the claimants’ claim failed at preliminary issue stage.

The first claimant is the founder of the Dyson group. The second is the UK-based company within the Dyson group that holds Dyson’s intellectual property, technology and brand rights. The third is the UK trading company.

The first defendant owns and operates the national TV network, Channel Four. The second produces TV news programmes.

The claimants issued a libel claim on 25 February regarding a Channel Four News broadcast on 10 February. Channel Four News is produced by the second defendant and broadcast by the first. The broadcast concerned the treatment of workers at a factory in Malaysia, operated by ATA Industrial, which manufactured goods for Dyson.

The claimants alleged that the broadcast was defamatory of them and conveyed the meaning that they were complicit in the abuse and torture of workers at the factory. They alleged that the meaning of the words complained of was that: ‘(1) the claimants were complicit in the systemic abuse and exploitation of workers at ATA, one of their suppliers located in Malaysia; (2) the claimants were also complicit in the persecution and torture of a worker who blew the whistle on working practices at ATA; and (3) the claimants claim to act in a responsible and ethical way but when serious abuses of workers were brought to their attention these abuses were not properly investigated but ignored and tolerated for a prolonged period of time while the claimants tried to cover them up and shut down public criticism.’ The defendants denied this.

A preliminary issue trial was heard on 6 October before Nicklin J to determine: (i) whether the broadcast, in its natural and ordinary meaning, referred to the second and third claimants; (ii) the natural and ordinary meaning of the broadcast; (iii) whether the meaning found is defamatory at common law; and (iv) whether the broadcast was, or included, statements of fact or opinion. All three claimants alleged that reasonable viewers would understand the broadcast to refer to them without special knowledge of extrinsic facts. In the alternative, in relation to the second and third claimants, they alleged that the broadcast would be understood by a substantial number of viewers to refer to them. Although they accepted there was no reference to the second and third claimants in the broadcast by name, they alleged that the programme was published ‘of and concerning’ all three claimants.

The defendants denied that the broadcast referred to the second and third claimants, who were not named in it. They contended that there was no information in the broadcast that would lead a reasonable viewer to understand the broadcast to refer to either of them. The only entity referred to was ‘Dyson’. From that, the viewer could not, without more, understand the broadcast to be referring to the second and/or the third claimant. They did, however, accept that if the broadcast was found to refer to the second and third claimants, then it was defamatory of them at common law.

As to the first claimant, the defendants accepted that the broadcast referred to him, but alleged that it bore no meaning defamatory of him, since it did not attribute any culpable conduct to him personally.

As a preliminary point, Nicklin J noted that the claimants’ case as to the Dyson group was ‘somewhat opaque’. While the particulars of claim did indicate a corporate ‘Dyson’ group (of which the second and third claimants are part), nothing further was said about the group structure or the other corporate entities within it.

The judge commented that the broadcast’s allegations were not directed at the entire Dyson group. Instead, there were only two candidates with a potential claim in so far as Dyson was concerned: (i) the corporate entity that was trading with ATA; and (ii) whichever company was responsible for the ‘PR operation’. In so far as the second and third claimants were concerned, Nicklin J found that, without consideration of extrinsic evidence, the broadcast simply did not refer to them. It did not name either company and there was nothing to suggest (without extrinsic evidence) that either company carried out the activities described at (i) and (ii) above. Having decided this, the judge found that the remaining preliminary issues to be determined fell away.

As to the first claimant, there was no dispute between the parties that the broadcast referred to him: he was named in it. The dispute concerned whether the broadcast bore any defamatory meaning of him. Here, the judge found that: ‘The broadcast is simply not about him, and no ordinary reasonable viewer could conclude that he was being in any way criticised.’

Nicklin J added: ‘Only a reader that was hopelessly naive about the way in which global companies like Dyson operate could consider that a single person, its founder, had day-to-day management responsibility for what happened in a manufacturing plant that supplied its products.’

The broadcast was incapable of bearing any meaning defamatory of the first claimant and as such, the remaining preliminary issues with respect to the first claimant also fell away.

This case demonstrates the importance of correctly identifying a claimant to an action at the outset of a matter. The failure of broadcast to refer to the second and third claimants, without consideration of extrinsic evidence, was fatal to the claim. The judge emphasised that caution must be exercised before the court directs reference to be determined as a preliminary issue. In cases where reference is disputed and the issue may well require an investigation of evidence, the issue may not be suitable for disposal as a preliminary issue.

Elizabeth Wiggin is a senior associate at Wiggin, London