Horlick v Associated Newspapers Ltd

In determining the meaning of allegedly defamatory words as a preliminary issue, the court must identify the natural and ordinary meaning conveyed to an ordinary reasonable reader reading the publication once in context. The exercise is impressionistic and should not be distorted by over-elaborate analysis or by selecting an artificially less serious meaning. Meaning must be distinguished from questions of defamatory tendency and available defences. Expressions such as loss of credibility or an undeserved reputation may be opinion rather than fact, depending on context. An allegation expressed as disingenuous may likewise be comment where readers would recognise it as a personal opinion. Opinions concerning the management and performance of an investment fund offered to the public relate to a matter of public interest.

The claimant brought a libel claim concerning an article published in The Mail on Sunday and online. The article criticised her management of an investment fund, including its performance, an investment in Bernard Madoff’s scheme, due diligence, and the raising of investment from a Middle East investor. The defendant pleaded meanings involving inadequate due diligence, a crisis of confidence among investors, and disingenuous fundraising, together with fair comment on matters of public interest.

The court was asked to determine the article’s meanings as a preliminary issue and to rule whether certain passages were expressions of opinion relating to matters of public interest. It also addressed the claimant’s obligation to respond to specified factual averments in the defence.

1. The court determined the meanings conveyed by the article by applying the natural and ordinary meaning test. The hypothetical reader was an ordinary reasonable reader of the relevant newspaper, reading the article once. Such a reader was neither naïve nor unduly suspicious, and was capable of reading between the lines, but was not avid for scandal. The judge’s task was substantially one of forming an impression, without over-elaborate analysis or a search for hidden meanings. The principles were drawn from Skuse v Granada Television Ltd [1996] EMLR 278, Gillick v BBC [1996] EMLR 267 and Gillick v Brook Advisory Centres [2002] EWCA Civ 1263.

2. The article conveyed that the claimant appeared likely to be toppled as a celebrated fund manager; that she had been criticised as disingenuous in dealing with the Middle East investor; that investors were suffering substantial losses; that she had lost credibility; that she had allowed the share price to diverge from the assets; that about 10 per cent of the fund had been invested with Bernard Madoff; and that questions had arisen about the quality of her due diligence.

3. The article did not convey deception, obtaining money by false pretences, reckless investment strategy, charlatanism, exploitation of powerful connections, or a defamatory imputation arising from the death of the claimant’s daughter. Nor did it convey a concluded allegation that her due diligence was inadequate. Applying the approach in Chase v News Group Newspapers Ltd [2003] EMLR 11, the passage amounted to a lower-level meaning that questions had been raised and that there were reasonable grounds for enquiry, rather than a concluded allegation of guilt or incompetence.

4. The expressions that the claimant had lost all credibility, would find it difficult to continue, and had an undeserved reputation were opinions or comments rather than verifiable facts. In context, the description of her approach to the investor as disingenuous was also capable of being understood as Sanford Henry’s personal opinion.

5. The opinions related to matters of public interest because members of the public had been invited to invest in the fund and the fund was traded on the London Stock Exchange main market. The court made no final determination on whether the passages were defamatory or whether any defence succeeded. The claimant was ordered to admit or deny specified passages in the defence, with brief reasons if unable to do so, by 4.30 pm on 8 July 2010.