The Duke of Sussex v Associated Newspapers Limited

In determining the meaning of a publication, the court must identify the single natural and ordinary meaning conveyed to the hypothetical ordinary reasonable reader, read as a whole. A publication may combine allegations of fact with expressions of opinion. An allegation that conduct was intended to mislead may be defamatory even where the publication stops short of alleging dishonesty or lying. Criticism of attempts to impose unjustifiably wide confidentiality restrictions on court proceedings may narrowly satisfy both the consensus and seriousness requirements for defamation.

The claimant brought a libel claim concerning an article published by the defendant about his legal challenge to decisions concerning police protection in the United Kingdom. The court tried preliminary issues concerning the article’s natural and ordinary meaning, whether it contained fact or opinion, and whether the meanings were defamatory at common law.

The claimant also sought a preliminary determination of serious harm under Defamation Act 2013, s.1, but that issue was refused for preliminary determination because evidence concerning actual impact was admissible.

1. Meaning. The article conveyed three related meanings: that the claimant had initially sought unjustifiably wide confidentiality restrictions in his proceedings; that he was responsible for statements claiming that he had always been willing to pay for police protection, although the offer was made only after proceedings began; and that he was responsible for attempting to mislead and confuse the public about the true position.
2. Fact and opinion. The court applied the principles in Koutsogiannis v The Random House Group [2020] 4 WLR 25. The factual allegations concerned the confidentiality application, the timing of the offer to pay, and the public statements. Descriptions such as “far-reaching” and “unjustifiably wide”, and the criticism that the public had been misled and confused, were expressions of opinion.
3. Defamatory meaning. Applying Millett v Corbyn [2021] EMLR 19, meaning (a) was narrowly defamatory because the criticism of seeking unjustifiably wide confidentiality restrictions was contrary to shared social values and would have a substantially adverse effect on treatment of the claimant. Meaning (b), considered alone, was not defamatory. Taken with meaning (c), however, the allegation that the claimant’s object was to mislead the public supplied the necessary defamatory element.
4. The article alleged “spinning”, not lying. The ordinary reader would understand that distinction, and any conclusion that spinning was equivalent to lying would be the reader’s own value judgment. Responsibility for the statements was attributed to the claimant personally because they were issued on his behalf and the article’s allegation of a crushing rebuttal depended on that responsibility.
5. The judgment determined only the preliminary issues. The question of serious harm and any substantive defences remained for later determination.