Poroshenko v British Broadcasting Corporation

In a defamation claim, natural and ordinary meaning is assessed from the impression made on the hypothetical ordinary reasonable viewer or reader, having regard to the publication as a whole, its context and presentation. A television broadcast is ordinarily watched once, so overall impression matters more than close textual analysis; a written report allows more absorption but still is not read like a legal document. Under the repetition rule and bane-and-antidote principles, a denial may fail to neutralise an allegation where the publication presents mutually reinforcing, apparently credible incriminating material and offers no independent reason for caution. The court should not test meaning by asking what the publication did not expressly say. A party resisting a preliminary trial of meaning must normally give cogent, case-specific reasons, and obstructive conduct may attract costs.

The claimant, the President of Ukraine, brought a libel claim against the BBC concerning a News at Ten broadcast and a website report. Both publications alleged that intermediaries acting for the claimant had made a secret payment of $400,000 to Michael Cohen to arrange more substantial talks with President Trump. The claimant contended that the reports conveyed personal procurement or authorisation of a corrupt payment. The BBC contended that they conveyed only grounds to suspect a payment by intermediaries and left the claimant’s knowledge or authorisation unresolved.

On the BBC’s application, meaning was directed to be tried as a preliminary issue. The court was not determining truth or falsity, defamatory meaning at common law, or the statutory serious-harm threshold. The central issue was the natural and ordinary meaning conveyed by each publication.

Nicklin J determined the preliminary issue for the claimant and ordered the claimant to pay the costs of, and occasioned by, the BBC’s application, including correspondence after 5 October 2018.

1. Approach to meaning. The court applied the principles identified in Koutsogiannis -v- The Random House Group Ltd [2019] EWHC 48 (QB) [12]-[15]. The two reports had to be assessed separately. The court put itself in the position of the hypothetical ordinary viewer or reader and focused on the impression created by the publication as a whole, avoiding lawyerly over-analysis. Television is normally watched once, making overall impression especially important. A text gives the reader more opportunity to absorb its contents, but is still not subjected to textual analysis.
2. Repetition and bane-and-antidote. Both reports presented a series of factual allegations from sources whose credibility was mutually reinforced. They gave the viewer or reader no independent reason for caution. The denials therefore provided very little antidote and did not reduce the overall message. The court applied the contextual approach discussed in Zarb-Cousin -v- Association of British Bookmakers [2018] EWHC 2240 (QB) [40].
3. Meaning conveyed. The reports conveyed a Chase level 1 meaning. The ordinary viewer or reader would understand that the claimant had procured or authorised a corrupt payment of $400,000 to Michael Cohen, Donald Trump’s personal lawyer, to extend an agreed brief meeting into more substantial talks. The reference to intermediaries acting for the claimant naturally suggested his approval or knowledge. The longer chain of intermediaries in the website report did not exclude that inference. The express absence of any suggestion that President Trump knew of the payment reinforced the contrast with the claimant, who was not exonerated.
4. Preliminary issue and costs. Once meaning is clearly disputed in a defamation claim, all parties should consider its determination as a preliminary issue. As explained in Morgan -v- Associated Newspapers Ltd [2018] EMLR 25 [8]-[10] and Bokova -v- Associated Newspapers Ltd [2019] 2 WLR 232 [9]-[10], a party opposing that course will normally need cogent, case-specific reasons. The claimant’s obstructive conduct breached the obligation under Civil Procedure Rules 1998 Part 1.3 to assist the court in furthering the overriding objective and justified the costs order.
5. The court expressly confined its determination to meaning. It did not decide truth, falsity, defamatory meaning, or whether the statutory serious-harm threshold under section 1 of the Defamation Act 2013 was met.

The claim and particulars of claim were served, and the parties disputed meaning. On the BBC’s application, Master Davison directed that meaning be tried as a preliminary issue, extended time for service of the Defence, and reserved costs. This judgment determined the preliminary issue and the reserved costs.