Simpson v Mirror Group Newspapers Ltd

When determining the single meaning of an allegedly defamatory publication, the court must not prefer one possible meaning merely because it carries a stronger defamatory sting. Meaning and the intensity of the sting may overlap, but they are not invariably identical.

A justification defence may be struck out only where no reasonable fact-finder could conclude that the pleaded facts prove the essential or substantial truth of the sting. The tribunal must determine which pleaded facts are proved and then assess whether, taken together, they justify that sting. Reasonable disagreement about the significance of particular facts should ordinarily be resolved at trial.

A newspaper publisher appealed from part of Warby J’s order in a libel claim arising from an article about a professional footballer’s relationships. The judge had determined the article’s meaning as a preliminary issue and struck out the publisher’s common law defence of justification.

Permission to appeal was confined to the strike-out. The determination of meaning was therefore unchallenged. Because the claim predated the Defamation Act 2013, the applicable defence was common law justification rather than the statutory defence of truth.

The central issue was whether the fixed meaning necessarily determined the intensity of the defamatory sting, so that omissions concerning cohabitation and the claimant’s partner’s legal career made the pleaded justification incapable of succeeding.

1. Appeal allowed. The judge should not have struck out the defence of justification. Laws LJ gave the judgment of the court, with which King and Lindblom LJJ agreed.

2. The governing principle in ascertaining a publication’s meaning is reasonableness. The court must read the publication as a whole through the eyes of the hypothetical reasonable reader. It must not choose one possible meaning because that meaning carries a greater defamatory sting. Such an approach would presume a libellous meaning and systematically favour claimants.

3. Once meaning has been ascertained, the defamatory sting will commonly be apparent. Meaning and the intensity of the sting may sometimes be inseparable, but they do not invariably coincide. Reasonable people may differ about the gravity of conduct conveyed by the words. The unappealed ruling on meaning therefore did not prevent the publisher from arguing that particular elements made a lesser contribution to the sting than the claimant asserted.

4. A justification defence could be struck out only if no reasonable fact-finder could conclude that proof of the pleaded particulars would establish the truth of the words in the meaning already found. The essential sting alleged here was the selfish disruption of a committed family relationship. Whether cohabitation and the partner’s legal career materially intensified that sting was reasonably debatable and had to be determined by the fact-finding tribunal at trial.

5. The approach was consistent with Turcu [2005] EWHC 799: the tribunal should isolate the essential core of the libel without being distracted by peripheral inaccuracies. It was also consistent with Chase [2003] EMLR 11. The tribunal must first decide which factual propositions in the particulars of justification have been proved. It must then decide whether the proved facts collectively establish the essential or substantial truth of the sting. The judge had impermissibly determined the latter issue on the pleadings.

1. Court of Appeal (Civil Division): Allowed the publisher’s appeal against the order striking out its defence of justification. The unappealed determination of meaning remained in place.
2. High Court, Queen’s Bench Division: Warby J determined the article’s meaning as a preliminary issue and struck out the defence of justification as disclosing no reasonable grounds for defending the claim.