Berkoff v Burchill & Anor

The question whether words are capable of being defamatory is a legal threshold, but courts should be slow to withdraw it from a jury. The assessment is claim-specific and contextual. Meaning is judged by the ordinary reader, having regard to the words, their setting and the claimant’s standing. Defamation protects reputation broadly understood as a person’s standing in the community. An imputation need not allege moral fault or professional incompetence: words capable of lowering standing, exposing a person to ridicule, or causing social exclusion may qualify. A bare statement of ugliness does not fall within the physical-condition cases concerned with shunning, but words used to convey repulsiveness and ridicule may be capable of defamation. Whether the publication actually damaged reputation remained for the jury.

Steven Berkoff sued Julie Burchill and Times Newspapers Ltd over two Sunday Times reviews describing film directors as notoriously hideous-looking and comparing the Creature in Frankenstein with him. He pleaded that the publications meant he was hideously ugly and relied on the second article’s full context.

On the defendants’ application under Rules of the Supreme Court Order 14A, Drake J refused to hold the pleaded meaning incapable of being defamatory and gave leave to appeal. The central issue was whether the meaning could be defamatory because it lowered reputation, exposed Berkoff to ridicule, or caused him to be shunned or avoided.

The appeal was dismissed by a majority, with costs, and leave to appeal was refused. Neill and Phillips LJJ formed the majority. Millett LJ dissented and would have allowed the appeal and dismissed the action.

1. Threshold issue. The court may determine as a matter of law that words are incapable of a defamatory meaning, but it should exercise great caution. Whether the publication was in fact defamatory is ordinarily for the jury. The preliminary question must be addressed by reference to the pleaded claim, the actual words and their surrounding context.
2. Meaning and reputation. The ordinary reader determines meaning. The publisher’s intention is not decisive, although perceived intention may colour the meaning. Reputation is understood broadly as a person’s standing in the community. Words need not impute moral fault or professional incompetence. They may be defamatory if they lower standing, expose the claimant to ridicule, or tend to exclude the claimant from society.
3. Majority reasoning. Neill LJ held that, in context, the publications could convey that Berkoff was not merely unattractive but repulsive, lowering his standing in the public estimation and making him an object of ridicule. Phillips LJ agreed that the precise words and circumstances were material. Although a statement that a person is ugly does not ordinarily fall within the physical-condition cases concerned with people being shunned or avoided, words framed as ridicule may be capable of damaging reputation. The pleaded meaning therefore could not properly be removed from the jury.
4. Dissent. Millett LJ considered that ugliness concerned appearance rather than reputation. In his view, the established shunning cases involved physical unwholesomeness, disease or comparable factual conditions, and a humorous or exaggerated insult should not become actionable without an attack on reputation.

1. Court of Appeal (Civil Division) The appeal was dismissed by a majority with costs; leave to appeal was refused. [1996] EWCA Civ 564
2. Queen’s Bench Division Drake J dismissed the defendants’ application under Rules of the Supreme Court Order 14A, held that the pleaded meaning was capable of being defamatory, and granted leave to appeal.