Ranger v Pycraft

Contractual undertakings given to compromise threatened defamation proceedings are interpreted objectively, by reference to their wording, the agreement as a whole, relevant context and business common sense. Where the undertaking prohibits publication of defamatory statements of the same or similar nature to identified posts, the restriction ordinarily concerns the content of the allegations, not the format, audience or medium, unless the agreement provides otherwise. The technical defamation meaning of publish is the starting point. It includes communication to one other person and may extend to material supplied for dissemination to a substantial journalistic audience. Early settlements remain enforceable even though the underlying allegations have not been adjudicated. An injunction enforcing such an undertaking remains discretionary and requires a sufficiently real and substantial risk of future breach.

The claimant, a solicitor and trust-company director, alleged that the defendant had breached contractual undertakings signed in March 2018. The undertakings had been given in return for the claimant refraining from bringing threatened defamation proceedings concerning online allegations of serious professional and criminal wrongdoing.

The alleged breaches comprised a briefing sent to an investigative journalist, which was later posted to a journalists’ listserv, and three earlier tweets which the defendant was required to delete. The defendant argued that the briefing was not publication of statements of the same or similar nature, that it was private or semi-private, and that the tweets had been deleted. The claimant sought enforcement of the contractual costs provision and a permanent injunction.

1. Liability. The undertakings were binding contractual compromises and were to be interpreted objectively, considering the ordinary meaning of the words, the agreement as a whole, relevant background and business common sense ([16]).
2. The expression “further defamatory statements of the same or similar nature to the posts complained of” referred principally to the content of the allegations identified in the solicitors’ letters, rather than to the form in which they were communicated. No limitation to websites, social media or the public domain could be implied ([20]-[28]). The briefing repeated the earlier allegations and therefore fell within the undertaking ([21]).
3. The word “publish” was given its technical defamation meaning as the starting point. Publication included communicating the material to Ms Komisar and, in any event, making it available through her posting to approximately 200 investigative journalists. The evidence also established, on the balance of probabilities, that the listserv material had been publicly accessible ([38]-[48]).
4. The undertakings were not impermissibly vague or oppressive. They placed responsibility on the defendant to take care over where he took the allegations, while recognising a distinction between material under his control and material for which only best endeavours could be required ([35]-[36]; [42]-[47]).
5. The court also found it probable that the three tweets had not been deleted, or that the defendant had failed to take the required steps concerning their persistence or re-emergence. That issue was not necessary to liability because the briefing already constituted a breach ([49]-[55]).
6. Remedy. The contractual agreement to pay the claimant’s legal costs was enforceable. A permanent injunction was refused. Although the defendant had previously conducted an extensive campaign and had breached the undertakings, the evidence showed only two discovered instances, the breaches appeared capable of being mistakes or oversight, and the risk of future breach was not sufficiently high to justify an injunction at that stage ([56]-[64]).