Koutsogiannis v The Random House Group Ltd

The natural and ordinary meaning of an allegedly defamatory book is the broad impression conveyed to the hypothetical reasonable reader by the whole publication. Context and any bane and antidote must be considered together, without over-elaborate textual analysis. A reader’s personal moral judgement is distinct from the publication’s objective meaning. Descriptions such as dishonest or criminal cannot be imported solely from a reader’s assessment of the conduct described.

Where third-party allegations are repeated, meaning focuses on the underlying factual allegations, considered in context. Whether words convey fact or opinion depends on how the ordinary reader understands them. A factual account of participation in wrongdoing may remain factual even where readers are left to assess its moral or criminal culpability.

Panagiotis Koutsogiannis, an interest rate derivatives trader and senior employee of UBS, brought a libel claim against The Random House Group Ltd, publisher of The Spider Network. The book concerned Libor manipulation and centred on Tom Hayes, a trader convicted of conspiracy to defraud. It described the claimant’s attempts to influence UBS’s Libor submissions, his dismissal and regulatory proceedings. Those proceedings included a finding by the Financial Conduct Authority that he had acted neither dishonestly nor without integrity.

The claimant alleged that the book accused him of dishonest and criminal conspiracy causing widespread financial loss, followed by regulatory and employment sanctions. The publisher proposed a narrower meaning concerning collusive behaviour and argued that any additional moral criticism would be opinion. Before a defence was filed, Deputy Master Bard ordered a trial of preliminary issues concerning the words’ natural and ordinary meaning and whether they conveyed fact or opinion.

The preliminary issues were determined. The book conveyed a defamatory factual allegation that the claimant participated in a worldwide network of collusive behaviour and deliberately sought to manipulate Libor for the benefit of his own or his employer’s trading positions. That conduct was potentially detrimental to many people and entities, including those paying excessive amounts for financial products or services linked to Libor. Liability on the libel claim was not determined.

1. The court had to ascertain the single natural and ordinary meaning understood by the hypothetical reasonable reader. For a book, that reader was assumed to have read the whole publication. The inquiry concerned its broad impression, taking any bane and antidote together, rather than comparing isolated passages or subjecting particular phrases to detailed analysis. The guidance in Charman v Orion Publishing Co Ltd [2005] EWHC 2187 (QB) was applied (paras 11–14, 23 and 30).

2. The claimant’s proposed descriptions of his conduct as dishonest or criminal represented, in context, possible personal value judgements by readers. They were not expressed as the author’s opinion of the claimant and formed no part of the natural and ordinary meaning. Hayes’s conviction did not establish that the book branded everyone involved in Libor manipulation a criminal. The brokers’ acquittals and the claimant’s reported regulatory exoneration were relevant to the book’s overall message. Observations about discerning an unexpressed authorial opinion remained tentative and acknowledged the difficulty of separating it from a reader’s own judgement (paras 17, 26–29 and 32(i)).

3. The pleaded regulatory and dismissal meanings breached the repetition rule. Meaning had to focus on the underlying alleged conduct, rather than merely what the regulator or employer had concluded. In the context of the pleaded allegation, dismissal itself supplied no defamatory sting; the sting lay in its alleged cause. The contextual repetition rule stated in Brown v Bower [2017] 4 WLR 197 was applied (paras 15 and 32(ii)–(iii)).

4. Opinion had to be recognisable as comment, assessed through the ordinary reader’s understanding of the subject matter and context. Allegations of dishonesty or criminality had no fixed classification. Here, the book presented a distinct factual account of the claimant’s activities without expressing an opinion on them beyond the general theme that Libor manipulation was wrong and had victims. Potential detrimental consequences formed part of the meaning, but the examples of financial loss were illustrative; actual individual loss depended on personal circumstances and the investment concerned (paras 16, 28 and 33–35).

The claim form was issued on 28 February 2018 and amended particulars of claim were served on 20 March 2018. On 20 June 2018, Deputy Master Bard ordered a trial of preliminary issues concerning meaning and whether the words referring to the claimant were opinion. Nicklin J determined those issues following the hearing on 12 December 2018.