Makin v Cambridge

In a renewed application concerning the meaning of words complained of in libel, the appellate question was whether the first-instance judge was right, not merely whether the meaning was one the judge was entitled to find. A defamatory meaning should not be expressed through over-elaborate or unclear construction. Where a ruling blends active conduct with passive acquiescence and creates material uncertainty about what must be proved at trial, permission may properly be granted so that the meaning can be revisited. The court applied the principles against over-elaboration summarised in Jeynes v News Magazines Limited [2008] EWCA Civ 130 and the approach in BCA v Singh [2010] EWCA Civ 350.

The claimant, a public service interpreter and former director of the National Register of Public Service Interpreters, brought a libel claim against the defendant concerning an email circulated to approximately 925 people. The defendant challenged the meaning pleaded by the claimant and relied on a Lucas-Box meaning and qualified privilege.

Tugendhat J ruled on 12 July 2010 that the words bore a meaning alleging that the claimant had used her position to advance private interests in CINTRA and had allowed CINTRA to procure the sale of data to assist it in obtaining contracts. Rimer LJ refused permission on the papers. The defendant renewed the application before the Court of Appeal, arguing that the meaning was unclear, over-elaborate and not defamatory. The central issue was whether the meaning ruling should be revisited on appeal.

Permission to appeal was granted. The application concerned an interlocutory ruling on the meaning of the words complained of. The Court of Appeal did not finally determine the proper meaning, liability or any defence.

1. The relevant appellate question was whether Tugendhat J was right, rather than merely whether the meaning was one he was justified in finding. This followed the approach identified in BCA v Singh [2010] EWCA Civ 350.
2. The principles governing defamatory meaning, summarised in Jeynes v News Magazines Limited [2008] EWCA Civ 130, cautioned against over-elaborate analysis.
3. Laws LJ considered the meaning found below arguably over-elaborate and unclear. It appeared to combine active advancement of private interests with passive acquiescence in CINTRA’s conduct. The resulting question was what facts would establish that passive acquiescence amounted to active advancement.
4. The position was unsatisfactory because the uncertainty would create difficulties in contesting and trying the action. In those circumstances, the meaning required reconsideration, and permission to appeal was granted.

• Court of Appeal (Civil Division): Rimer LJ refused permission to appeal on the papers on 10 September 2010. On renewal, Laws LJ granted permission on 8 October 2010.
• Queen’s Bench Division: Tugendhat J ruled on 12 July 2010 that the words complained of bore a defamatory meaning alleging misuse of the claimant’s position to advance private interests in CINTRA.