Tiscali UK Ltd v British Telecommunications Plc

At the pre-trial stage of a defamation claim, the court determines which meanings the words are capable of bearing. A meaning should be excluded only where a jury would be perverse to adopt it. The exercise must be approached with generosity towards the claimant. The court must focus on the words themselves, read in context, while recognising that a headline may colour the meaning of an article as a whole. In a claim by a company, the relevant meaning must reflect upon its trading or business reputation. Allegations that an individual has acted improperly do not necessarily convey a defamatory meaning about the corporate claimant. Meanings based on dishonesty or breach of a customer-facing duty will be struck out where the words cannot reasonably bear them.

Tiscali UK Limited, a broadband provider, sued British Telecommunications Plc in libel and malicious falsehood. BT had sent Tiscali customers a letter headed “Tiscali chief plots sell-off”, inviting them to consider switching to BT Total Broadband. Tiscali alleged that the words conveyed dishonesty, lack of candour, or failure to safeguard customers’ interests by failing to warn them that their broadband service might be jeopardised by a sale or takeover.

BT applied under paragraph 4.1 of the Practice Direction attached to CPR Part 53 for a ruling that the words were incapable of bearing the pleaded defamatory meanings. The court considered both the natural and ordinary meaning and the pleaded innuendo.

1. The application was determined on the pleaded basis. Evidence challenging the accuracy of the facts relied upon for the innuendo was inadmissible on this application. The court assumed that Tiscali would establish those facts at trial and that at least some readers would know them.

2. The court’s task was to delimit the meanings which the words were capable of bearing: [1998] QB 520, 526. At the pre-trial stage, a meaning should be excluded only if a jury would be perverse to uphold it: [2004] EMLR 6, [14]. The exercise required generosity rather than parsimony: [2001] EMLR 1030, [16].

3. The words had to be assessed as words referring to the corporate claimant and its trading or business reputation. The court was wary of treating a corporation as the claimant where the alleged conduct in truth concerned an individual. Mr Pompei was not a party, and the reference to his plotting did not necessarily convey dishonesty by Tiscali UK. The court also recognised that a headline could influence the meaning of the article as a whole: [1995] 2 AC 65, 72.

4. The pleaded meanings were too contrived. The words conveyed that Tiscali’s business might be sold and that customers might wish to consider an alternative service because the future position was uncertain. They did not reasonably convey that Tiscali was dishonest, lacked candour, had failed to safeguard customers’ interests, or was in breach of a duty to warn them.

5. Knowledge of the pleaded background did not make the alternative innuendo meaning reasonably available. It would therefore be perverse for a jury to uphold the pleaded meanings. BT’s application was upheld and the part of the claim founded in defamation was struck out.