RBOS Shareholders Action Group Ltd v News Group Newspapers Ltd & Anor

On a preliminary meaning application in defamation proceedings, the court should ordinarily determine the natural and ordinary meaning of the words without evidence. Meaning establishes the gravity of the allegation, but the seriousness of the libel also depends on matters such as publication extent and the publishees. A threatened abuse-of-process application does not, by itself, justify postponing the meaning decision. The hypothetical reasonable reader is not avid for scandal, but the court must avoid an over-analytical reading. Explanatory passages will not constitute an antidote where they fail to remove the grounds for suspicion created by the publication. A corporation may be defamed where the meaning tends to deter third parties from dealing or associating with it, even though it is portrayed as a victim.

The claimant, a company formed to pursue claims for RBoS shareholders, sued the publisher of The Scottish Sun and its Scottish Home Affairs Editor over an article concerning Gerard Walsh and the claimant’s shareholder action. The defendants had not served a defence and proposed applications to strike out the claim as an abuse of process, alternatively for summary judgment. The claimant applied for the meaning of the publication to be tried as a preliminary issue. A dispute also arose concerning the claimant’s possible right to elect trial by jury. The defendants ultimately confirmed that they would not seek a jury trial. The central issues were whether the court should determine meaning at that stage and what meaning the words bore.

1. Preliminary issue. The court could determine meaning before any proposed abuse-of-process or summary-judgment application. The order in which issues are decided is a case-management decision under CPR r 3.1(2)(j). A threatened strike-out application did not of itself prevent the court from determining the level of gravity apparent to the hypothetical reasonable reader.
2. Meaning and seriousness. Meaning should normally be determined without evidence, by reference to the words complained of, their pleaded context and the claimant’s identity. This identifies the level of gravity, including the tiers described in Chase. The seriousness of the libel is a broader question, which may include the extent of publication and the identity or relationship of the publishees. The finding of meaning would remain relevant to any later application based on Jameel v Dow Jones.
3. Corporate claimant. The claimant’s being portrayed as a victim did not prevent the allegation from being defamatory. A company of this kind was at least analogous to a trade union or charitable organisation. The relevant question was whether the meaning had a tendency to deter third parties from dealing with, or associating with, it.
4. Antidote. The remarks attributed to the claimant and Mr Walsh did not neutralise the publication’s principal sting. They did not allay the grounds for suspicion created by the article.
5. Disposition. The natural and ordinary meaning was that it was strongly to be suspected that the claimant was being controlled and used by Mr Walsh as a conduit for the fraudulent misappropriation of members’ funds for his personal benefit. The court rejected the additional contention that the article conveyed that this was highly likely. Further argument on whether the meaning was fact or opinion was left open.