Sakho & Anor v World Anti-Doping Agency

In a defamation claim, the court may determine the meaning of a republication as a preliminary issue even where the claimant sues only on the primary publication. This is particularly appropriate where the republication reached a substantially wider audience and may bear a materially different level of gravity relevant to the serious harm threshold under the Defamation Act 2013.

Where a claimant relies on a republication only as causing or increasing damage, it is unnecessary at the meaning stage to determine whether the republication is actionable or has a mitigating effect. The natural and ordinary meaning is the single meaning conveyed to the hypothetical reasonable reader, reading the publication as a whole and without lawyerly analysis.

The first claimant, a professional footballer, brought a defamation claim against the World Anti-Doping Agency concerning two emails sent to journalists about his positive higenamine test and WADA’s decision not to appeal a disciplinary ruling.

The claimant relied on newspaper articles reproducing the emails as republications relevant to publication, serious harm and damages, but did not sue on those articles as separate causes of action. WADA sought preliminary determinations of the articles’ meanings as well as the emails’ meanings. The principal issues were whether the article meanings should be determined and what natural and ordinary meanings the four publications conveyed.

1. Republications. The court determined the meanings of both newspaper articles. Although the claimant sued only on the emails, the articles had been published to millions of readers, whereas the emails had been sent to four journalists. Their meanings were therefore relevant to assessing whether serious harm had been caused or was likely to be caused under section 1(1) of the Defamation Act 2013. Meaning could conveniently be determined as a preliminary issue because no evidence beyond the publications was admissible for that purpose.
2. The articles’ meanings were not required to decide whether the republications conveyed part of the sting of the emails or could increase damages. That question could be resolved without determining their meanings. Any mitigating effect of the articles would be considered at the assessment of damages stage. The court left open the separate issue whether WADA could rely on defences to the claim for damage said to flow from the articles.
3. Meaning. The court’s task was to determine the single natural and ordinary meaning conveyed to the hypothetical reasonable reader. The publication had to be read as a whole, in context and having regard to its mode of publication. The court rejected strained or excessively lawyerly analysis and applied the principles summarised in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB).
4. The Telegraph email meant that the claimant had taken a prohibited performance-enhancing substance within the S3 class of WADA’s Prohibited List, in breach of the WADA Code, but that his low degree of fault made it uncertain whether more than the one-month suspension already served would be justified. The Guardian email additionally conveyed that the substance had been prohibited since 2004 and that the claimant’s conduct was culpable.
5. The Telegraph article conveyed that the claimant had been absolved after a positive test gave grounds for investigation, that WADA’s classification of the substance failed to withstand scrutiny when tested, and that WADA was not appealing. The Guardian article conveyed that the positive test had been wrongly flagged, that the substance was not specifically named or consistently tested for, that experts were uncertain of its classification, and that WADA nevertheless maintained its position without appealing.