Crow v Johnson

In determining whether words are capable of bearing a defamatory meaning, the court applies the understanding of the reasonable reader. The publisher’s intention is irrelevant. Political criticism must be assessed in its full context, particularly during a contested election, when substantial latitude is allowed for partisan comment. Words criticising a political candidate, or a person associated with that candidate, will not be defamatory merely because they convey negative political judgments. Where the words cannot reasonably be understood as attributing allegations of misconduct to the claimant, and the remaining meanings are political opinions rather than adverse statements of fact, the claim should be struck out.

The claimant, the General Secretary of the RMT, brought a libel action concerning election leaflets published by the defendant during the 2012 London mayoral election. The leaflets referred to the claimant’s association with the defendant’s political opponent and included references to council tax rises, broken promises, scandals, waste and cronies. The defendant applied to strike out the claim, arguing that the words were incapable of bearing a defamatory meaning. The claimant also sought permission to amend the claim to rely on a second version of the leaflet. The central issues were whether the words were capable of referring defamatory meanings to the claimant and whether those meanings were defamatory in the context of political campaigning.

1. The court applied the principles stated by Thomas LJ in Modi v Clarke [2011] EWCA Civ 937. The question at this stage was whether the words were capable of bearing a defamatory meaning, not what meaning they actually bore at trial. If no defamatory meaning was reasonably capable of arising, the claim disclosed no reasonable grounds and fell to be struck out under CPR r.3.4(2)(a).
2. The governing test was the understanding of the reasonable reader. The intention of the publisher was irrelevant. A reasonable reader is not avid for scandal and will reject a strained, forced or unreasonable meaning where a non-defamatory meaning is available.
3. The first pleaded meaning was not capable of being defamatory. Whether association with a political candidate damaged that candidate’s electoral prospects, or harmed Londoners’ interests, depended on the political views of the reader. There was no single view which all right-thinking people should adopt on whether the candidate ought to be elected.
4. The second and third pleaded meanings could be defamatory in an appropriate context, but the leaflet did not reasonably attribute the references to scandals, waste, broken promises, cronies or political immorality to the claimant. Those matters were attributed to the opposing candidate. The claimant’s association with that candidate was a separate matter, linked to the candidate’s reported intention to join a picket line.
5. In any event, the context of a hotly contested election was decisive. Statements by one candidate about another candidate, or about a person associated with that candidate, were partisan political statements. They fell within the latitude permitted by the law and could not reasonably be understood as lowering the claimant in the estimation of right-thinking members of society generally.
6. The words were therefore incapable of being defamatory of the claimant. The action was struck out. The proposed amendment could not assist.