Mark v Associated Newspapers Ltd.

On an application to rule upon a pleaded defamatory meaning, the court must identify the range of meanings reasonably available to the ordinary reasonable reader. It must consider the publication as a whole and avoid strained, over-literal or lawyerly analysis.

The repetition rule remains compatible with freedom of expression. An attributed and unadopted allegation may damage reputation, although qualified privilege can protect responsible reportage. Publishing the subject's denial does not ordinarily remove the defamatory sting. Only in the clearest cases should a court decide before trial that surrounding words have extinguished an otherwise available defamatory meaning.

A former nanny sued the publisher of the Daily Mail over an article reporting conflicting accounts of her dealings with the Mail on Sunday concerning a book about her former employers. The article was admittedly defamatory, but the parties disputed whether it could mean that she had lied when denying that she authorised publication of material from the book.

A Deputy High Court judge struck out that pleaded meaning under paragraph 4.1 of Practice Direction Part 53. He held that the article did not assert that she had authorised publication and, alternatively, that her reported denial neutralised any defamatory allegation. The claimant appealed against that ruling.

1. The appeal was allowed unanimously. Simon Brown LJ delivered the leading judgment. Mummery and Dyson LJJ agreed.

2. The court must give the publication the natural and ordinary meaning conveyed to the ordinary reasonable reader. That reader is neither naïve nor unduly suspicious, may read between the lines and engage in loose thinking, but is not avid for scandal. The court must consider the overall impression and avoid strained, over-elaborate or excessively literal analysis. The approach adopted in Gillick v Brook Advisory Centres & Jones [2001] EWCA Civ 1263 was applied.

3. The article was reasonably capable of reporting inconsistent statements. On one available reading, the newspaper's allegation that the claimant had misrepresented her position followed and characterised her denial as a lie. On another, the surrounding references could still convey that the Mail on Sunday asserted that she had authorised publication. The pleaded lying meaning therefore fell within the permissible range.

4. The repetition rule remained good law. A correctly attributed and unadopted defamatory allegation may itself damage reputation. For justification, proving merely that the allegation was made does not establish the truth of its substance. The rule concerns meaning and justification; it does not restrict common-law qualified privilege. Strasbourg decisions protecting responsible reportage were therefore compatible with the rule because they addressed when liability for publication was justified, rather than whether the words were defamatory.

5. The bane-and-antidote principle requires the whole publication to be considered. At an interlocutory stage, a judge should rule that surrounding material has removed an otherwise available defamatory sting only in the clearest and rarest cases. Merely reporting the subject's denial will not ordinarily neutralise the allegation.

6. The denial in this article did not extinguish the defamatory meaning. It could compound the allegation by presenting the claimant as dishonest, and the article was heavily weighted towards the account of the Mail on Sunday. The lying meaning was accordingly restored for determination in the action.

1. Court of Appeal (Civil Division): The claimant's appeal was allowed unanimously. The ruling that the pleaded lying meaning was unavailable was reversed.
2. High Court, Queen's Bench Division: HHJ Previte QC, sitting as a deputy judge, struck out the pleaded lying meaning under paragraph 4.1 of Practice Direction Part 53. No neutral or report citation is stated.