Lewis v Commissioner of Police of the Metropolis & Ors (Rev 1)

On an application for a ruling on meaning, the court asks whether words are capable of bearing the pleaded defamatory meaning; the ultimate meaning is for trial. In a limited publication, the hypothetical reader is assessed in the position of the actual recipient and may read the communication with appropriate care. Evidence of a publishee’s reaction may be admissible on meaning where it is also relevant to damages. Liability for republication depends on whether the defendant foresaw, or ought reasonably to have foreseen, the further publication and resulting additional damage. Qualified privilege is fact-sensitive and ordinarily unsuitable for summary determination where the duty, interest and relevance of the publication remain disputed. A plea of malice requires evidence raising a probability that the defendant did not believe the words to be true or was indifferent to their truth.

The claimant, a solicitor involved in proceedings concerning unlawful telephone-message interception, brought a libel claim against the Metropolitan Police Commissioner. The claim concerned an email stating that a police officer had been wrongly quoted and that the recipient should rely on evidence given by other police officers to a parliamentary select committee.

The defendants applied for rulings on meaning, summary judgment on qualified privilege, and strike-out for abuse of process. The claimant sought amendments to plead further publications, aggravation of damages and malice. The court also considered whether meaning should be tried by judge alone and whether evidence of a former defendant’s response was admissible.

1. The application under section 69(4) of the Senior Courts Act 1981 was refused. The court could not sensibly determine the mode of trial for meaning before determining the mode of trial for the action as a whole. The issue was central, and an early judge-only determination might materially influence the later mode-of-trial decision.

2. Applying the established principles summarised in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, the words were capable of bearing the pleaded meaning that the claimant had lied to the select committee. The hypothetical reader was the recipient of a limited communication, who could be expected to read an official legal response with care. Whether that was the actual meaning remained for trial.

3. Evidence of Baroness Buscombe’s written and spoken response was admissible for the interlocutory meaning issue. Following the reasoning in Garbett v Hazel Watson & Viney [1943] 2 All ER 359, evidence relevant to reputation and damages could also assist on meaning, although its admission at trial would remain for the trial judge.

4. Permission was granted to amend the claim to include publication to Baroness Buscombe and associated PCC recipients, and to rely on her own further statements. The wider press republications were excluded as disproportionate. The test in McManus v Beckham [2002] 1 WLR 2982 was not defeated at this stage: there was a real prospect of proving that further publication was foreseen or reasonably foreseeable and would cause additional damage.

5. The claim was not an abuse of process. Earlier settlement and vindication obtained from Baroness Buscombe and the PCC did not necessarily provide the same vindication as a judgment determining the MPS’s responsibility.

6. Summary judgment on qualified privilege was refused. The doctrine, particularly in publications by public authorities, was fact-sensitive and developing. The relevance of the volunteered reference to the claimant, and the scope of any duty or legitimate interest, required determination at trial.

7. Permission to amend the Reply to plead malice was refused in the contested respects. The pleaded facts did not raise a probability that the relevant officers did not believe the words to be true or were indifferent to their truth, applying the approach in Horrocks v Lowe [1975] AC 135 and Telnikoff v Matusevitch [1991] 1 QB 102.

First-instance interlocutory judgment in the High Court. The court determined applications concerning meaning, amendments, qualified privilege and abuse of process.