Tinkler v Ferguson & Ors

Where a defamatory meaning does not itself support an inference of serious reputational harm, a claimant relying on actual or likely serious harm must plead the facts and matters relied on to establish it. An amendment to particulars of claim should be allowed where it enables the real dispute to be determined, subject to compensable prejudice, but the proposed case must have a realistic prospect of success. Allegations of malice, being equivalent to dishonesty, require careful and precise pleading. Pleadings should identify the issues for determination and exclude vague or superfluous material. In assessing meaning and the distinction between fact and opinion, the author’s intention is irrelevant. Particulars relied on to prove falsity must address the meanings actually available on the pleaded claim.

The claimant brought claims in libel and malicious falsehood arising from an announcement issued by the defendants, members of the board of Stobart Group Ltd. Following a trial of preliminary issues, Nicklin J determined the meanings available for each cause of action, held that the only defamatory meaning was an opinion, and held that it was insufficiently serious to raise an inference of serious harm.

The claimant sought permission to amend his particulars of claim to rely on evidence and documents arising from related proceedings and to develop his cases on serious harm, falsity and malice. The defendants consented to some amendments and opposed others. The issues were whether the proposed amendments were legally relevant, sufficiently pleaded and had a realistic prospect of success.

1. Amendment principles. Permission was granted for amendments to which the defendants did not object and refused for the opposed amendments, subject to a limited opportunity to formulate further amendments concerning particular matters capable of supporting serious harm. The court applied the overriding objective in CPR r.1.1(1). Amendments should enable the real dispute to be adjudicated, where prejudice can be compensated in costs, but the new case must have a realistic prospect of success by reference to the summary judgment standard under CPR Part 24.
2. Serious harm. The claimant could not re-plead the inherent seriousness of the words as a substitute for evidence of serious harm, because that issue had already been determined. If reliance was placed on facts showing that publication had caused or was likely to cause serious reputational harm, those facts had to be pleaded. Assertions, irrelevant reactions and general allegations were insufficient.
3. Meaning and evidence. The court’s task was to determine how the words would be understood by the ordinary reader. Evidence of the author’s intention was irrelevant and inadmissible both on meaning and on whether the words were fact or opinion. Matters relied on to establish falsity had to relate to the meanings found to be available, rather than to historical or collateral matters.
4. Malice and pleading quality. A plea of malice was equivalent to an allegation of dishonesty and had to be pleaded with care and precision. The particulars had to be more consistent with malice than its absence. Vague expressions such as an allegation of an unlawful campaign without particulars, or pleading by way of examples while leaving the case open-ended, were objectionable. Superfluous material risked unnecessary disclosure, satellite issues and increased costs.
5. Costs. The defendants were the successful party on the preliminary issues and were awarded their costs, summarily assessed at £77,528 plus VAT. There was no order as to the costs of the application for the preliminary trial. The defence timetable was deferred until the particulars were in final form.

• High Court (Queen’s Bench Division): Nicklin J determined the preliminary issues in Tinkler v Ferguson [2018] EWHC 3563 (QB). Permission to appeal was refused at first instance.
• Court of Appeal: The claimant’s appeal was dismissed in Tinkler v Ferguson [2019] EWCA Civ 819.
• High Court (Queen’s Bench Division): The present court determined the claimant’s subsequent application to amend the particulars of claim.