O'Dwyer v ITV Plc

On a meaning application, the court must identify the meaning reasonably conveyed by the publication as a whole. It must consider any competing account of a dispute together and apply the high threshold for excluding meanings as incapable of arising. A claimant cannot convert an accurate or reasonable attribution of his own words into a defamatory meaning merely by alleging that the attribution was incorrect. A claim based on an internet innuendo requires identification and proof of persons who read both publications. Amendments should be refused where they disclose no reasonable cause of action or have no real prospect of success. Claims for misuse of private information and breach of confidence require the relevant private or confidential information and the applicable legal elements to be pleaded.

The claimant, acting in person, sued in libel over an ITV programme concerning his dispute with Cypriot property developers. He alleged that the programme portrayed him as foolish, unreasonable, hypocritical, criminal, belligerent and aggressive. He also sought permission to amend his pleading to add claims concerning misuse of private information, breach of confidence, copyright, freedom of expression and psychological harm.

The defendant applied to strike out the claim and opposed permission to amend. The central issues were whether the broadcast was capable of bearing the pleaded defamatory meanings, whether the proposed innuendo was adequately pleaded, and whether the proposed additional causes of action disclosed reasonable grounds with a real prospect of success.

1. Meaning. Applying Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and Jameel v The Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 6, the court had to read the programme as a whole, including the competing views in the dispute. The threshold for excluding a possible defamatory meaning was high, but meanings produced only by strained or unreasonable interpretation had to be excluded.
2. The programme was not capable of conveying that the claimant was foolish, obstinate, greedy or unreasonable merely because it showed him declining an offer and explaining that he preferred to buy and resell the property. A person may in principle be defamed by an edited broadcast of his own words, but the pleaded meaning and supporting facts did not establish that case.
3. The programme was arguably capable of conveying that there were grounds to suspect that the claimant had insulted the developer. It was not capable of conveying actual guilt. On the claimant's pleaded facts, the remaining meanings concerning arrest, insult and grounds for investigation had no real prospect of success.
4. The proposed innuendo that the claimant was a hypocrite was defective. Website publication alone did not establish substantial publication. Following Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 WLR 113, the claimant would need to identify persons within the jurisdiction who had viewed both the programme and the relevant website material.
5. The proposed misuse of private information and confidence claims identified no private or confidential information and did not plead the required legal elements. The freedom of expression claim was unknown to law. The copyright claim was outside the jurisdiction of the Queen's Bench Division and appeared meritless on the pleaded facts.
6. Permission to amend was refused. The original claim, which the claimant accepted disclosed no cause of action, was struck out. The court stressed that the result did not imply anything adverse to the claimant's reputation.

This was a first-instance decision on the defendant's strike-out application and the claimant's application for permission to amend. Permission to amend was refused and the claim was struck out.