McAlpine v Bercow

In a libel action, the court may order a preliminary trial of the actual meaning of words where doing so furthers the overriding objective. The court determines the single meaning which the words actually bear, rather than merely identifying meanings of which they are capable. Meaning may affect whether the words are defamatory, the seriousness and extent of publication, damages, mitigation and the prospects of settlement. The decision requires a fact-sensitive assessment of proportionality, expense, expedition, fairness and use of court resources. Speculative matters, including possible appeals or undisclosed settlement offers, should not materially influence that assessment.

The claimant brought a libel claim concerning a Twitter message asking why he was trending. The defendant admitted publication but denied that the message bore the defamatory meaning pleaded. The claimant applied for the actual meaning of the words, and whether they were defamatory, to be tried as a preliminary issue. The defendant argued that a single hearing would be more efficient and less costly. The court therefore considered whether an early determination would further the overriding objective.

1. Application granted. The actual meaning of the Tweet, and whether the words were defamatory, were ordered to be tried as a preliminary issue.
2. The court’s decision was governed by the overriding objective under CPR r 1.1, including saving expense, proportionality, expedition, fairness and the appropriate allocation of court resources. The parties were required to assist the court under CPR r 1.3.
3. On a preliminary issue of meaning, the judge determines the actual single meaning conveyed by the words. This differs from a ruling on the meanings which the words are capable of bearing. A natural and ordinary meaning is assessed from the perspective of the reasonable reader. An innuendo meaning depends on the reader’s knowledge of extrinsic facts.
4. An early determination may be particularly appropriate in libel proceedings. Meaning may determine whether the words are defamatory, the seriousness of the defamatory meaning, the extent of publication, the amount of damages and the relevance of compensation received from other publishers under Defamation Act 1952 s 12. It may also reduce distress, publicity and expense by avoiding unnecessary evidence.
5. The absence of a truth or honest-opinion defence made the potential saving smaller, and two hearings might cost more than one. Those considerations did not outweigh the benefits in this case. Assertions about a party’s negotiating position in a skeleton argument were improper and carried no weight. The possibility of an appeal was too speculative to affect the decision.

Directions were to be agreed for the preliminary hearing and any subsequent hearing on damages.