Skrine & Co & Ors v Euromoney Publications Plc & Ors

In a contribution claim arising from foreign defamation settlements, the court must determine the natural and ordinary meaning of the publication itself. It must not try to predict or reproduce the meaning a foreign court might have found. An appellate court should interfere with that determination only where the trial judge was plainly wrong.

Words may constitute comment where, read in context, they express inferences, criticisms or concerns arising from stated facts, even though some aspects of the publication are factual. An appellate court should rarely use an appeal from case-management directions to determine wide questions of law in advance of trial. Foreign law may be proved and considered where relevant to whether a contribution claim should be extinguished, reduced or assessed as just and equitable.

The claimants, a Malaysian firm and two partners, sought contribution under the Civil Liability (Contribution) Act 1978 from publishers and contributors to an article about the Malaysian justice system. The claimants had settled Malaysian libel proceedings for approximately £2.9 million.

Morland J determined the article’s meaning, held that the words were comment, and struck out substantial parts of the defence after a case-management conference. The claimants appealed against the rulings on meaning and comment. The defendants appealed against the striking-out orders and invited the Court of Appeal to determine wider issues concerning foreign law, public policy, comity, Convention rights and the assessment of contribution.

The central issues were whether the judge had adopted the correct meaning and classification of the article, and which parts of the defendants’ pleaded case were relevant and admissible for trial.

1. Meaning. The judge had to determine the meaning conveyed by the article according to its natural and ordinary meaning, read as a whole and from the standpoint of the ordinary reasonable reader. The claim being for contribution did not alter that task. The court was not required to select a middle meaning or to second-guess what a Malaysian judge might have found if the Malaysian proceedings had gone to trial. The judge’s meaning, that there were strong grounds for suspecting unethical and unprofessional manipulation of the Malaysian court system, was not plainly wrong and was upheld.
2. Appellate restraint. The principles in Slim v Daily Telegraph Ltd [1968] 2 QB 157 and Skuse v Grenada Television Ltd [1996] EMLR 278 were correctly applied. The Court of Appeal should be slow to disturb a trial judge’s conclusion on meaning, particularly where the same material is before both courts.
3. Comment. The article described factual litigation events but, read in context, the complained-of words amounted to comment on those events. They posed questions, recorded concerns and expressed inferences or criticisms. That fell within the meaning of comment explained in Clarke v Norton [1910] VLR 494.
4. Case management and pleading. It was generally inappropriate to decide wide, abstract questions governing the future trial on an appeal from case-management directions. Such guidance would ordinarily be non-binding and could increase costs and produce fragmentation. The 1987–1988 constitutional events pleaded in support of the defence were irrelevant to the article’s allegations concerning commercial litigation in 1994 and 1995 and were properly struck out.
5. The defendants could rely on Malaysian law and the reported Malaysian cases to argue that the settlement should not support contribution, or that its amount was relevant to what contribution was just and equitable under section 1 of the Civil Liability (Contribution) Act 1978. They could also challenge the reasonableness of the settlement. The broader allegations attacking the Malaysian judiciary and legal system, including reliance on the Special Rapporteur proceedings, were unsupported or irrelevant and were properly removed.
6. The claimants’ appeal was dismissed. The defendants’ appeal was allowed in part. The orders below were reversed to the extent stated, with consequential costs orders.

• Queen’s Bench Division: Morland J determined the article’s meaning and held that the words constituted comment. He struck out substantial parts of the defence following a case-management conference.
• Court of Appeal (Civil Division): The claimants’ appeal was dismissed. The defendants’ appeal was allowed in part.