Tinkler v Ferguson & Ors (Rev 1)

Natural and ordinary meaning in defamation is assessed from the words themselves as understood by the ordinary reasonable reader. Allegations of falsity, intention and malice are irrelevant to that exercise. Vigorous boardroom disagreement, even if disruptive or unreasonable, does not without more convey breach of directors’ duties, lack of integrity or unfitness for office. A regulatory announcement may contain both fact and opinion. Under the Defamation Act 2013, a defamatory opinion may meet the common-law threshold but still fail to raise an inference of serious harm where the imputation is relatively minor and the source is visibly partisan. For malicious falsehood, the single-meaning rule does not apply. The question is whether a substantial number of people could reasonably understand the words to bear the pleaded meaning.

The claimant, an executive director and substantial shareholder in Stobart Group, brought claims for libel and malicious falsehood against five directors concerning an announcement issued through the London Stock Exchange Regulatory News Service. The defendants applied for preliminary determination of meaning, fact or opinion, serious harm and the availability of the claimant’s pleaded meanings for malicious falsehood.

Master Gidden ordered those issues to be tried preliminarily. The central dispute was whether the announcement accused the claimant of breach of duty, improper conduct and unfitness as a director, or instead conveyed criticism of his opposition to the chairman’s re-election and the board’s view that it was destabilising.

1. Meaning. The court assessed the announcement without reference to alleged falsity, intention or malice. It held that meanings depending on an individual reader’s own moral judgment were not part of the natural and ordinary meaning. The court applied the approach in Brown v Bower [2017] 4 WLR 197. Vigorous disagreement about the best interests of a company did not, without more, imply breach of directors’ duties, lack of integrity or unfitness for office. An RNS announcement could contain both fact and opinion.
2. The single meaning for defamation comprised: factual allegations that the claimant had presented challenges to the board; an opinion that removing the chairman would weaken governance and create risks; and an opinion that the claimant’s conduct was disruptive, unreasonable and regrettable. The first meaning was factual and non-defamatory. The second was opinion and not defamatory at common law. The third was opinion and defamatory under the common-law test in Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985.
3. Serious harm. Applying section 1 of the Defamation Act 2013 and the factors identified in Morgan v Associated Newspapers Ltd (No. 2) [2018] EMLR 25, the court held that the third meaning was not sufficiently serious to raise an inference of serious harm. The criticism was at the less serious end of defamatory allegations, and readers would recognise it as the partisan view of one side in an ongoing boardroom dispute. The claimant therefore had to prove serious harm by evidence.
4. Malicious falsehood. The single-meaning rule did not apply. The court asked whether a substantial number of persons would reasonably understand the words to bear the pleaded meaning, applying Ajinomoto Sweeteners SAS v Asda Stores Limited [2011] QB 497 and Cruddas v Calvert [2014] EMLR 5. For present purposes, meanings that the claimant had destabilised the board and had required the board to address the listed challenges were capable meanings. To the extent the meaning was opinion, the claimant would bear the burden of proving falsity.
5. The court expressly declined to resolve wider questions about amendment, the addition of new meanings and the possible multiplicity of preliminary meaning trials in malicious falsehood proceedings.

This was a first-instance determination of preliminary issues. The claim form was issued on 8 June 2018. On 28 September 2018, Master Gidden ordered the issues of meaning, fact or opinion, serious harm and capable meanings for malicious falsehood to be tried preliminarily. No appellate stage is stated.