Brown v Bower & Anor

The repetition rule does not mechanically require a repeated allegation to bear the same, or a guilt-level, meaning as the original allegation. The court must determine the single natural and ordinary meaning from the impression made on the reasonable reader by the publication as a whole.

A guilt meaning requires that, in context, the publisher has adopted or endorsed the allegation. Bald repetition may have that effect, but context may show that the allegation is merely reported, discounted or not adopted. A claimant cannot later enlarge the determined meaning by adding unpleaded imputations or inferences founded on an individual reader’s moral judgment.

The claimant brought a libel claim concerning a passage in a book written by the first defendant and published by the second defendant. Warby J had previously ordered that meaning and common-law defamation be tried as preliminary issues: [2017] EWHC 1388 (QB).

The passage reported that the claimant had been accused by the News of the World of paying rent boys to kick him around a room, and then stated that he had admitted his sexuality. The claimant contended for a guilt meaning. The defendants contended that the passage conveyed only grounds to suspect consensual rough sex.

The central issues were the effect of the repetition rule on meaning, the contextual meaning of the passage, and whether the resulting meaning was defamatory at common law.

1. The court determined the preliminary issue of meaning. The words meant that, at the date of the newspaper allegation, there were grounds to suspect that the claimant had paid young male prostitutes to subject him to consensual rough sex.

2. The natural and ordinary meaning had to be assessed through the impression made on the reasonable reader who had read the book as a whole. The immediate context showed that the claimant’s admission concerned his sexuality, not an admission that the reported allegation was true. The allegation was included as part of an account of publicity about homosexuality in politics, rather than as a substantiated example of misconduct or sleaze.

3. The repetition rule applied to meaning, but it did not displace the contextual exercise. A republisher remains responsible for disseminating an allegation. However, a guilt meaning arises only where the publication, read as a whole, adopts or endorses it. Bald repetition may do so, but contextual language, purpose and surrounding material may show that the allegation has not been adopted.

4. The court rejected qualifications that the grounds were “strong” or “reasonable”, because the reader could not assess the strength of the newspaper’s case. It also rejected any implication of non-consensual conduct and clarified that the allegation concerned commercial sexual services.

5. The defendants had conceded that the meaning found was defamatory and serious. The court made no ruling on whether it was defamatory at common law. That question remained one of law and was adjourned, since it involved difficult issues concerning contemporary shared values and a ruling at that stage risked unnecessary further costs.

This was a first-instance decision. Warby J had earlier directed trial of meaning and common-law defamation as preliminary issues: [2017] EWHC 1388 (QB). Nicklin J determined meaning and adjourned the remaining common-law issue.