Travel Insurance Facilities Plc (t/a Tifgroup) v Times Newspapers Plc

In determining defamatory meaning, the court must assess the words as a whole and the inferences a reasonable reader would draw from their context. Chase levels are useful shorthand, not a rigid taxonomy. Reports of allegations and investigations may convey strong grounds for suspicion rather than guilt, depending on the article’s overall effect, prominence, evidence and the publisher’s treatment of the claimant’s response. The repetition rule applies where a publication reports a third party’s allegation, subject to the overall effect of the article. For honest opinion under section 3(2) of the Defamation Act 2013, the question whether words convey fact or opinion is likewise assessed by the ordinary reasonable reader, having regard to context and whether the statement is recognisable as comment or inference.

The claimant, a travel-insurance managing general agency, brought proceedings over three articles published by the defendant newspaper. The articles reported regulatory investigations, alleged failures to arrange medical repatriation, and allegations that the claimant delayed, avoided or minimised payments.

On 7 March 2019 Master McCloud ordered the trial of preliminary issues concerning the meaning of each article and, in relation to the Second Article, whether the defamatory imputation was fact or opinion. The court therefore had to determine the meanings conveyed and the applicable Chase levels, together with the fact-opinion issue relevant to the proposed honest-opinion defence.

1. Meaning. The court applied the approach summarised in Koutsogiannis v The Random House Group and Feyziyev v The Journalism Development Network Association. Meaning is determined by the overall tenor, purport and effect of the publication, including its context, presentation, prominence, evidence and any response from the claimant. The reasonable reader would understand the First Article to convey strong grounds to suspect fraud, a systematic practice of delaying, avoiding or minimising insurance payments through specified tactics, a profit-saving motive, and strong grounds to suspect that the practice had caused avoidable deaths.
2. The same Chase level applied to the Second Article. Its case studies exemplified the alleged pattern of conduct and conveyed strong grounds to suspect that the claimant should have repatriated Mr Blake and Ms Rest by air, that similar conduct occurred in other cases, and that the cases illustrated the alleged pattern of practice. The Third Article similarly conveyed strong grounds to suspect that the claimant failed to follow medical advice concerning Ms Goodman, causing her death, and that her death was not isolated.
3. The court rejected Chase level 1 meanings. Although the articles raised serious allegations and referred to substantial evidence, they were understood as reports of allegations, supporting material and investigations. The use of “whistleblower” did not make the allegations facts. The appropriate level for the central allegations and causation was Chase level 1½.
4. Repetition and context. Applying Hewson v Times Newspapers Ltd, repetition of a third party’s allegation generally attracts the same Chase level as the original allegation, subject to the overall effect of the article, including any mitigation or antidote. A report of regulatory investigation does not automatically prevent a finding of guilt or establish a presumption against it.
5. Fact and opinion. The statements attributed to Ms Sullivan and Ms Staddon were opinions. The article as a whole nevertheless conveyed the same suspicion of a money-saving motive as the First Article. The fact-opinion inquiry under section 3(2) of the Defamation Act 2013 required consideration of whether the imputation was recognisable as comment or inference and how it would strike the ordinary reasonable reader.
6. The claimant was permitted to amend its case concerning the First Article. The parties were directed to draw up an order reflecting the ruling and the other case-management directions. Costs were costs in the case.

First-instance determination of preliminary issues ordered by Master McCloud on 7 March 2019. The court determined the meanings of the three articles and the fact-or-opinion issue arising in relation to the Second Article.