Euromoney Institutional Investor Plc v Aviation News Ltd & Anor

On an application to amend a defamation claim, the court must refuse an amendment where the pleaded words are incapable of bearing the alleged defamatory meaning or the proposed claim has no real prospect of success. Meaning is assessed by reading the publication as a whole through the eyes of the hypothetical reasonable reader. Lawful copying and comparative advertising are not inherently defamatory. An expression such as “fleecing”, in context, may be opinion rather than an allegation of dishonesty. A statement of opinion cannot found malicious falsehood, and a plea of malice requires a properly arguable case of dishonesty or an intention to injure. A claim should also be refused where no real or substantial tort would justify the expenditure of litigation resources.

Euromoney sued Aviation News Ltd and Philip Tozer-Pennington over two promotional emails concerning competing aviation-finance conferences. The original claim alleged libel and intentional infliction of harm by unlawful means. The claimant later sought permission to amend, add Euromoney Trading Limited as a claimant, and introduce claims in malicious falsehood.

The defendants opposed the amendments on grounds including defective reference, meaning, opinion, malice, lack of likely pecuniary damage and abuse of process. The court considered whether the publications were capable of bearing the pleaded meanings, whether they could refer to either claimant, whether the proposed causes of action had a real prospect of success, and whether any real or substantial tort remained.

1. Amendment principles. Permission to amend was refused where the proposed pleading would have been struck out under CPR r.3.4(2)(a), or where the new claim had no real prospect of success under CPR r.24. The court applied the guidance in Jeynes v News Magazines Ltd [2008] EWCA Civ 130: reasonableness governed the assessment; the publication was read as a whole; the publisher’s intention was irrelevant; and strained meanings were excluded.
2. Email. The allegation that a competitor had copied or been forced to copy a conference was incapable of being defamatory. Lawful copying promotes competition and, without an allegation of breach of law or binding code, did not lower a company in the eyes of right-thinking members of society generally. The defamation amendment based on the Email was therefore refused.
3. Advertisement. The words concerning “fleecing” were capable of referring to the claimant or ETL and of conveying unfair overcharging. In context, however, they were capable only of expressing opinion or value judgment, not dishonesty or fraud. Under Spiller v Joseph [2010] UKSC 53, success on such a defamatory opinion would require proof of malice in the relevant sense. The pleaded meaning of dishonest or fraudulent overcharging was not the meaning relied on.
4. Malicious falsehood. The court applied the constituents stated in Kaye v Robertson [1991] FSR 62, including falsity, malice and likely pecuniary damage under section 3 of the Defamation Act 1952. Opinions could not be treated as falsehoods for this purpose. The copying allegation was ordinary comparative advertising and was not a claim a reasonable person could take seriously. The pleaded case of intention to injure was fanciful, and the material did not show a real prospect of proving dishonesty.
5. Reference and utility. The draft pleading gave the claims against both claimant companies a sufficient prospect of success on reference, and the claim by ETL could be added. That did not save the action. The court concluded that there was no real prospect of substantial damages or an injunction and no real or substantial tort worth the expenditure of further resources. Permission to amend was refused and, as the original claim was not pursued, the action was struck out.

First-instance decision. No appellate history was stated in the judgment.