Tinkler v Ferguson & Ors

An appellate court should not replace a trial judge’s determination of a defamatory statement’s single meaning merely because it prefers another reasonably available meaning. It may intervene where the judge erred in law or selected a meaning outside the reasonable range.

Meaning depends on the publication’s context and the response of the reasonable reader. That reader does not infer serious impropriety from boardroom disagreement or references to related-party matters unless the publication fairly conveys it. An evaluative allegation that conduct was disruptive or unreasonable may be opinion rather than verifiable fact. Where such an allegation lies at the low end of seriousness, it does not itself support an inference of serious harm under the Defamation Act 2013.

The claimant, a former chief executive and executive director of a listed company, brought claims in libel and malicious falsehood concerning a Regulatory News Service announcement issued by the company’s other directors during a boardroom dispute.

At a preliminary trial, Nicklin J held that the announcement alleged that the claimant had presented challenges to the board and behaved disruptively and unreasonably, but did not allege breach of fiduciary duty, lack of integrity, or unfitness to be a director. The judge held that the relevant evaluations were opinion and that the sole defamatory meaning was not sufficiently serious to infer serious harm: [2018] EWHC 3563 (QB).

The claimant appealed the findings on meaning, fact and opinion, serious harm, and the reasonably available meanings for malicious falsehood.

1. Appeal dismissed. The judge’s single meaning was within the range of reasonably available meanings. The announcement described a boardroom dispute and portrayed the claimant as a disruptive or destabilising influence. It did not convey an allegation of breach of fiduciary duty, selfish impropriety, lack of integrity, or unfitness to be a director.
2. Applying Stocker v Stocker [2019] UKSC 17, the court held that context was important and that appellate intervention required disciplined restraint. A stock-exchange announcement would be read seriously by financially aware readers, but that did not turn unexpressed allegations of impropriety into its natural meaning.
3. Applying the reasonable-reader criteria in Jeynes v News Magazines Ltd [2008] EWCA Civ 130, the court rejected a construction based on an appetite for scandal. References to related-party transactions and other board challenges did not, read as a whole, assert misconduct or predict an adverse outcome on those issues.
4. The findings that the relevant meanings were opinion were correct. Calling conduct disruptive, unreasonable, regrettable or destabilising in a boardroom dispute was evaluative and not an assertion of verifiable fact. The allegation was at the low end of defamatory seriousness and did not support an inference of serious harm under section 1 of the Defamation Act 2013. The claimant could pursue that narrow meaning only by proving serious harm or its likelihood with evidence.
5. For malicious falsehood, there is no single-meaning rule. A claimant may rely on a reasonably available meaning, but cannot add unsupported imputations of breach of duty, self-interest, improper conduct, or unfitness. The judge’s available meanings correctly excluded those inferences.

• Court of Appeal (Civil Division): Dismissed the claimant’s appeal and upheld the preliminary rulings on meaning, opinion, serious harm, and malicious falsehood: [2019] EWCA Civ 819.
• High Court, Queen’s Bench Division, Media and Communications List: Nicklin J determined preliminary issues concerning the meaning of the announcement, fact and opinion, serious harm, and reasonably available meanings for malicious falsehood: [2018] EWHC 3563 (QB).