Wright v Caan

On an application to amend a defamation and malicious falsehood claim, the court determines the permissible range of meaning at an early stage. Words are assessed as an ordinary reasonable reader would understand them, without strained, forced or excessively suspicious analysis. An innuendo requires proper particulars of the extrinsic facts and the meaning said to arise from them, but readers need not always be individually identified where a substantial readership makes that inference reasonable and oppressive to require identification. A malicious falsehood claim must identify a false statement and plead actual damage or a proper factual basis for the likelihood of pecuniary damage. Amendments with no real prospect of success should be refused.

The claimant, an inventor and former participant in Dragons’ Den, sued the defendant for libel and malicious falsehood arising from comments published in the Mail on Sunday and on the defendant’s website. She sought leave to replace defective particulars of claim with an amended pleading.

The proposed meanings included that she had lied about why the business relationship ended and had misled the defendant and the other Dragons. The malicious falsehood case alleged falsity, malice and damage, relying alternatively on section 3(1) of the Defamation Act 1952. The central issues were whether the words were capable of bearing the pleaded meanings and whether the proposed amendments had a realistic prospect of success.

1. Meaning. The judge applied the principles restated in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, drawing on the formulation in Gillick v Brook Advisory Centres and the Court of Appeal decision at [2001] EWCA Civ 1263. The court must evaluate the words itself and delimit the meanings reasonably capable of being conveyed to the ordinary reasonable reader or publishee. Meanings requiring a strained, forced or utterly unreasonable interpretation must be rejected.
2. The comments to the journalist were not capable of bearing the pleaded natural and ordinary meanings that the claimant had lied or misled the Dragons. The pleaded innuendo that the journalist understood the claimant to have lied was properly particularised, but the meaning remained too strained. The website statement was capable of meaning that the claimant had misled the Dragons about the alleged order, but not that she had deliberately misled them. The proposed website innuendo that she had lied was likewise too strained.
3. For an innuendo, the claimant must plead the extrinsic facts and the understanding said to result. Individual readers need not always be identified. Following the reasoning discussed in Baturina v Times Newspapers Ltd [2011] 1 WLR 1526, Fullam v Newcastle Chronicle [1977] 1 WLR 651 and Grapelli v Block [1981] 1 WLR 822, an exception may arise where substantial readership makes it reasonable to infer that some readers knew the extrinsic facts and identifying them would be oppressive.
4. A malicious falsehood claim must identify a false statement and establish actual damage or that the words were calculated, meaning likely, to cause pecuniary damage. The pleaded publication to one journalist lacked a credible basis for such likelihood. The website statement was predominantly positive and the alleged criticism was minor; a bare assertion under section 3(1) of the Defamation Act 1952 was insufficient.
5. The court accepted that malice in malicious falsehood is broadly equivalent to malice in qualified privilege, but found no pleaded basis for recklessness. Amendments generally should be allowed to determine the real dispute, subject to prejudice and the interests of justice, but must be refused where the proposed case has no prospect of success. Leave to amend the defamation claim based on the journalist publication, the deliberate-misleading and website-innuendo meanings, and the malicious falsehood claims was refused. Counsel were invited to address the consequential orders.