Fox v Boulter

On a meaning application in a defamation claim, the court decides whether words are capable of bearing the pleaded or another defamatory meaning, applying a high threshold before excluding meanings as perverse. The words must be read in their publication context, including other parts of the publication. Whether surrounding circumstances are matters of general knowledge supporting a natural and ordinary meaning, or extrinsic facts supporting an innuendo, may be a question for trial. A claimant may select a distinct allegation on which to sue. After expiry of the limitation period, an amendment introducing a new cause of action may be permitted where it arises from the same or substantially the same facts already in issue. Further particulars of an existing allegation are not themselves new facts.

Dr Liam Fox brought a libel claim against Harvey Boulter concerning words published in a televised interview and accompanying website article. He alleged that the words meant that he had dishonourably failed to speak publicly to rebut serious allegations against Mr Boulter, despite being able to do so.

Mr Boulter applied under CPR Practice Direction 53 to establish that the words were incapable of bearing the pleaded or any other defamatory meaning. Dr Fox also sought permission to amend his Particulars of Claim to plead an innuendo and provide further particulars, after the one-year limitation period had expired. The central issues were the range of meanings properly open on the words and whether the proposed amendment introduced a new cause of action arising from the same facts.

1. Meaning application. The application was dismissed in substance. The court had to consider both the pleaded meaning and any other meaning defamatory of the claimant that could properly be advanced, applying Modi v Clarke [2011] EWCA Civ 937.
2. The governing principle was reasonableness. The hypothetical reasonable reader was neither naïve nor unduly suspicious. The publication had to be read as a whole, including its context and any bane and antidote. The court should exclude only meanings emerging from a strained, forced or utterly unreasonable interpretation. The court’s task was to pre-empt perversity, not decide the ultimate meaning for the jury, applying Jeynes v News Magazines Limited [2008] EWCA Civ 130 and Jameel v The Wall Street Journal Europe Spry [2003] EWCA Civ 1694; [2004] EMLR 6.
3. The words referring to Dr Fox’s stated willingness to give evidence were capable, in context, of conveying scepticism about whether he was genuinely willing to do so. They were therefore capable of bearing the pleaded defamatory meaning that he had failed to speak up to clear Mr Boulter’s name despite saying that he would.
4. The court accepted that the other words in the website publication could be relevant context, although the claimant had selected specific allegations on which to sue. A claimant may choose between separate and distinct allegations, and a defendant cannot justify an uncomplained allegation: Cruise v Express Newspapers Ltd [1999] QB 931.
5. It was not possible at this stage to determine whether the pleaded circumstances were general knowledge supporting a natural and ordinary meaning, or special knowledge supporting only an innuendo. That was a factual issue for trial. The distinction between a natural and ordinary meaning and an innuendo was confirmed by Grubb v Bristol United Press Ltd [1963] 1 QB 309 at 326–327.
6. Amendment. Permission was granted. The proposed innuendo was a separate cause of action, but the relevant conditions under CPR 17.4(2), reflecting section 35 of the Limitation Act 1980, were satisfied because the new claim arose from the same or substantially the same facts already in issue. The additional matters were further particulars of the existing allegation and were not new facts. The amended Particulars of Claim could therefore be served.