Hewson v Times Newspapers Ltd & Anor

The natural and ordinary meaning of an alleged libel is determined from the publication as a whole and by its overall effect on the ordinary reasonable reader. Under the repetition rule, a publisher who baldly repeats another person’s allegation may convey the allegation itself. Words such as “alleged” and “claimed” do not, without more, reduce an allegation of guilt to grounds for suspicion or investigation.

Context may mitigate or extinguish the defamatory meaning, particularly where the publication presents a substantial rebuttal or both sides even-handedly. Whether several imputations convey a common general sting is determined objectively as part of the meaning exercise. It is separate from the scope of any later truth defence.

The claimant brought libel proceedings concerning articles published by The Times and MailOnline. Both articles reported allegations that she had harassed and bullied a law student and another barrister. The defendants had not served defences. By an earlier order, the natural and ordinary meanings of the articles were directed to be tried as a preliminary issue.

With the parties’ consent, the preliminary issue was determined from written submissions without an oral hearing. The principal questions were whether the articles alleged guilt or merely grounds for investigation, and whether the allegations concerning the two complainants formed separate imputations or a common general sting.

1. Preliminary issue determined in favour of meanings alleging guilt. Each article meant that the claimant was guilty of repeated harassment and online bullying. The common allegations included death threats, online abuse, persistent nuisance telephone calls, and the sending of distressing pictures and personal details. Each article also alleged repeated online abuse of the other barrister, with minor differences reflecting its text. The court therefore rejected the defendants’ proposed meanings based only on grounds for investigation: paras [33]–[49].

2. The publication had to be read as a whole. Its overall effect governed the natural and ordinary meaning. Both articles were predominantly inculpatory and contained no substantial counterweight to the allegations. The limited statement in The Times that the police warning had no legal standing did not neutralise the allegations of guilt: paras [34], [40]–[43].

3. The repetition rule applied. A bald report that another person has accused the claimant of misconduct may itself convey that misconduct as fact. This primary form of adoption does not require the publisher expressly or actively to endorse the allegation. The verbs “alleged” and “claimed” therefore do not, by themselves, insulate a publisher from a meaning of guilt. The rule must nevertheless be applied with the other principles governing meaning and in the context of the whole publication: paras [35]–[42].

4. Context can mitigate the effect of repetition. A substantial rebuttal, facts undermining the accuser, or a roughly even-handed presentation may lead the reader to suspend judgment and understand only grounds for suspicion or investigation. The degree of mitigation always depends on the publication as a whole: para [42].

5. An allegation that a person is merely under investigation is defamatory because it implies grounds for investigation or suspicion. Proof of the bare fact of an investigation does not establish anything relevant to that implied charge. The suggested independent category of “proof of the fact of an inquiry” was not accepted: paras [11]–[12].

6. The allegations concerning the two complainants overlapped and concerned the same type of conduct. They conveyed the general sting of repeated harassing behaviour. The objective single meaning had to be determined at the preliminary trial and could not be postponed until a truth defence was pleaded. Meaning and the permissible parameters of a truth defence are separate questions: paras [44]–[46].

7. A natural and ordinary meaning issue can, in a suitable case, be determined from written submissions without an oral hearing. Open justice was maintained here by handing down a public judgment in open court and making the written submissions available. Whether that procedure could be imposed without the parties’ consent was left open: paras [16]–[27].

This was a first-instance determination. The claim form was issued on 10 April 2018. By an order dated 20 December 2018, the natural and ordinary meanings of the publications were directed to be tried as a preliminary issue before service of the defences. The preliminary issue was determined from written submissions with the parties’ consent.