Hayden v Associated Newspapers Ltd

In determining the natural and ordinary meaning of allegedly defamatory words, the court must read the publication as a whole and in its context. Headline words which suggest a defamatory meaning may be qualified or neutralised by explanatory material elsewhere in the article. This is a form of “bane and antidote” analysis. The hypothetical reasonable reader is not to adopt an unduly literal or suspicious interpretation.

Words are not defamatory merely because they report that a person complained to the police. Where the publication presents the complaint as involving serious allegations, and distinguishes the complainant’s conduct from the police’s subsequent response, a reasonable reader may regard the complaint as justified or understandable rather than improper or vexatious.

The claimant, a transgender woman, brought a libel claim concerning an article reporting the arrest of Kate Scottow following the claimant’s complaint to the police about online conduct. The article highlighted that Mrs Scottow had been arrested after referring to the claimant as a man, but also reported allegations of harassment, malicious communications, defamatory statements, and an injunction obtained by the claimant.

The issues at trial were the meaning of the article and whether that meaning was defamatory at common law. The claimant also applied for the judge to recuse himself because of observations in an earlier judicial review judgment. The recusal application was refused.

1. Recusal. The application to recuse was refused. Previous judicial decisions ordinarily do not establish apparent bias. The relevant question was whether there was substantial evidence that the judge could not give a fair hearing or that a fair-minded and informed observer would conclude that there was a real possibility of bias. The earlier judgment did not concern the claimant, make findings about her, or determine any issue relevant to the libel trial.
2. Meaning. Applying the principles in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), the article had to be read as a whole. Although the headlines referred to Mrs Scottow calling the claimant a man, the article explained that the complaint concerned a wider course of alleged conduct, including harassment, malicious communications, allegations that the claimant was racist, xenophobic and a crook, and mockery of her legal qualifications. The article therefore conveyed that the arrest followed a broader complaint, not merely a complaint about misgendering.
3. The article’s principal focus was the police response. It did not criticise the claimant for making a trivial or vexatious complaint. The reference to the injunction reinforced the seriousness of the allegations and showed that the factual basis of the criminal complaint and civil proceedings was substantially connected.
4. Defamatory meaning. Applying the common-law standard, the words did not attribute improper or wrongful conduct to the claimant. A right-thinking member of society would not regard a good-faith report of serious alleged harassment and malicious communications as improper. Nor would such a reader hold the claimant responsible for the police’s decision to arrest and detain Mrs Scottow.
5. The libel claim failed. Judgment was entered for the defendant.