Ager v Career Development Finance Ltd & Ors

In determining meaning in a defamation claim, the court must identify the single natural and ordinary meaning conveyed to the ordinary reasonable reader, reading the publication as a whole and in context. The court should avoid lawyerly, literal or over-elaborate analysis. The recognised Chase levels are useful shorthand, not a straitjacket. Statements may combine factual assertions with evaluative opinion. Whether words are defamatory at common law depends on whether the imputation would tend to lower the claimant in the estimation of right-thinking people and substantially adversely affect, or tend to affect, others’ attitude towards the claimant. The statutory serious-harm question under Defamation Act 2013, s 1, is distinct and was left for determination at trial.

The claimant brought libel and harassment proceedings concerning a 43-page booklet sent by the first defendant to a third party. The booklet alleged, among other things, that the claimant was under investigation for tax and benefit fraud, had abandoned his dying father, and had posted links to inappropriate material on children’s websites.

By consent, the court tried preliminary issues concerning the words’ natural and ordinary meanings, whether the meanings were fact or opinion, and whether they were defamatory at common law. Serious harm under Defamation Act 2013, s 1, was excluded from the preliminary trial. The central questions were what meanings the publication conveyed, which parts were factual or opinion, and whether the resulting imputations were defamatory at common law.

1. Meaning. The court identified the single natural and ordinary meaning of each passage by asking what the ordinary reasonable reader would understand from the booklet read as a whole. The reader is not naïve or unduly suspicious, and the court must avoid a lawyerly, literal or over-elaborate analysis. Context, presentation and mode of publication are relevant. The recognised Chase levels are a useful shorthand, but do not require every case to fit one of them. The fraud allegation conveyed that there were some grounds to suspect the claimant was guilty of tax and benefit fraud. The abandonment allegation conveyed that he had shockingly abandoned his father to die in squalor and had hypocritically berated social services. The children’s website allegation conveyed that he had inappropriately posted links to described adult material and political content on children’s websites, including one he hosted, and that this was inexplicable and worrying.
2. Fact and opinion. The fraud allegation was factual. The abandonment allegation was factual in substance, but the descriptions “shockingly” and “hypocritically” were expressions of critical opinion. The children’s website allegation was factual as to the posting of links, but “inexplicable” and “worrying” were opinion.
3. Defamatory meaning. Applying the common-law test, all three meanings were defamatory. The abandonment allegation was capable of lowering the claimant in the estimation of right-thinking people and adversely affecting, or tending adversely to affect, others’ attitude towards him. The statutory serious-harm issue was not decided. It remained for the judge determining liability under Defamation Act 2013, s 1, to consider the inherent tendency of the words together with evidence of historic or probable future harm.