BrewDog Plc & Anor v Frank Public Relations Ltd

In determining defamatory meaning, the court must assess the publication as a whole and in context, through the eyes of the hypothetical reasonable reader. The court may select the correct single meaning, but cannot adopt a strained or unduly suspicious interpretation. Extrinsic evidence of how readers understood the publication is inadmissible.

A legal innuendo requires publication to persons who knew the relevant special facts, and those publishees and facts must be pleaded. A negligent misstatement claim must plead the factual basis for the duty of care, breach and loss. A pleading will not ordinarily be struck out for remediable defects where amendment is reasonably possible, but strike-out is appropriate where there is no good reason to believe that an arguable case can be pleaded.

The claimants, BrewDog plc and BrewDog Retail Ltd, brought claims in defamation and negligent misstatement against their public-relations company. The dispute arose from a press release announcing a commercial partnership with Scofflaw Brewing Company and offering free beer to supporters of Donald Trump.

A preliminary issue concerned the natural and ordinary meaning of the words complained of. The defendant also applied under CPR r.3.4(2) to strike out the Particulars of Claim. The central issues were whether the publication conveyed that BrewDog supported Donald Trump or his political views, whether the pleaded innuendo was sustainable, and whether the negligent misstatement claim adequately pleaded duty, breach and loss.

1. Meaning. Applying the principles summarised in Kutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25, the press release had to be read as a whole and in context. The hypothetical reasonable reader was neither naïve nor avid for scandal, and the court was not bound by the meanings advanced by the parties.
2. The publication conveyed only that BrewDog had entered a commercial partnership with Scofflaw, whose promotion offered free beer to Trump supporters. It did not convey that BrewDog shared Scofflaw’s political philosophy, supported Donald Trump, or supported associated right-wing, intolerant or prejudicial policies. The question whether such a meaning would be defamatory therefore did not arise. The common-law test was stated by reference to Skuse v Granada Television Ltd [1996] EMLR 278.
3. The pleaded innuendo necessarily depended on the rejected natural and ordinary meaning. It therefore failed. In any event, a legal innuendo requires the identity of the publishees who knew the special facts to be pleaded. That requirement followed Fulham v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651. The court indicated that amendment might ordinarily have been permitted for that omission, but any new innuendo would be a fresh cause of action barred by Limitation Act 1980, s.4A.
4. Negligent misstatement. The pleading did not identify the factual basis for the alleged duty of care, the facts constituting breach, or the loss suffered by each claimant. There was also no need to impose a duty to avoid defamation, since defamation liability does not depend on negligence. The relevant parts of the claim were unsustainable.
5. Although amendment is generally preferable where a pleading defect can probably be cured, applying Soo Kim v Young [2011] EWHC 1781 (QB), the claimants’ continued defence of the existing pleading and failure to propose amendments justified the inference that no arguable duty or breach could be pleaded. The defamation and negligent misstatement claims were struck out.