Elliott v Rufus

On an application to strike out a pleaded defamatory meaning, the court asks only whether an ordinary reasonable reader could understand the publication in that way. The threshold for excluding a meaning is high. The reader may draw implications, engage in loose thinking and form a broad impression, but cannot adopt a strained or unreasonable interpretation.

Lawful conduct may still be described in terms which lower a person in the estimation of right-thinking members of society. The protection accorded to reporting crime to the proper authorities does not create a general rule that public disclosure of wrongdoing can never involve defamatory disloyalty. Meaning and defamatory tendency depend on the words, their context and contemporary social attitudes.

The claimant brought a libel action concerning a press release in which the defendant said that a former friend and business colleague had made public an offensive private text message. The claimant alleged that readers familiar with an earlier newspaper article would identify him and understand the press release to accuse him of dishonourable and disloyal betrayal.

Dingemans J, in [2013] EWHC 3355 (QB), refused to strike out the claim under CPR Practice Direction 53 paragraph 4.1. He held that the press release was capable of implying that the claimant had acted disloyally by making a private dispute public. The defendant appealed, contending principally that lawful public exposure of wrongdoing could not be defamatory.

The central issues were whether the words were capable of bearing the pleaded defamatory implication and whether the Court of Appeal could determine their actual meaning.

1. Appeal dismissed. The High Court was entitled to find that the press release, read in its context, was capable of imputing disloyalty or untrustworthiness to the claimant. Sharp LJ gave the judgment, with which Mitting J and McCombe LJ agreed.

2. The threshold for excluding a meaning under paragraph 4.1 of Practice Direction 53 to the Civil Procedure Rules 1998 is high. The court should intervene only to prevent a perverse meaning. It must apply the perspective of the hypothetical ordinary reasonable reader described in Jeynes v News Magazine Ltd [2008] EWCA Civ 130. That reader forms a broad impression, can read between the lines and may engage in loose thinking, but does not adopt a strained or forced interpretation.

3. The relevant meaning included reasonable implications drawn from the words. A publication may be literally neutral while its sting lies in what an ordinary reader would infer. In context, readers could infer that the claimant had betrayed a residual obligation of loyalty by making a private dispute public. They could think both that the defendant's language was seriously wrong and that the claimant's alleged disclosure was disloyal.

4. The court rejected a general rule equating lawful conduct with conduct incapable of attracting defamatory criticism. An allegation of unlawful conduct will ordinarily be defamatory if sufficiently serious, but the converse does not follow. Conduct may be lawful under privacy or confidence principles yet still lower a person in the estimation of right-thinking members of society.

5. Byrne v Deane [1937] 1 KB 818 did not establish a wider bright-line rule covering every public-interest disclosure. Reporting crime to the proper authorities differs materially from making a private communication public. The law must remain sufficiently flexible to reflect the subtleties of language, context and contemporary social attitudes.

6. The Court of Appeal declined to determine the words' actual meaning. Under rule 52.11 of the Civil Procedure Rules 1998, the appeal was limited to reviewing the decision below. Actual meaning was a primary factual question which the High Court had not decided, so it was remitted for determination there.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 121, unanimously dismissed the defendant's appeal. It upheld the ruling that the words were capable of bearing a defamatory meaning but left their actual meaning for determination by the High Court.
2. High Court of Justice, Queen's Bench Division: Dingemans J, in [2013] EWHC 3355 (QB), refused the defendant's application under Practice Direction 53 paragraph 4.1 to strike out the libel claim on the ground that the words were incapable of being defamatory.