CHRIS PACKHAM CBE v DOMINIC WIGHTMAN

In defamation proceedings, the natural and ordinary meaning of publications is determined by asking what the hypothetical reasonable reader would understand from the words read as a whole and in context. Rhetorical questions, qualifications and references to investigation will not neutralise a defamatory meaning where the surrounding publication supplies an emphatic answer. Meaning and the fact/opinion issue may be considered together, because whether words convey fact or opinion forms part of determining their meaning. Parts of a publication may express opinion in isolation, yet the publication’s overall defamatory imputation may remain an asserted statement of fact.

The claimant brought defamation proceedings concerning 19 online publications comprising articles, videos and tweets published between April 2020 and November 2021. The publications concerned alleged fundraising by the claimant for the Wildheart Trust and statements about tigers housed at its sanctuary.

Master Dagnall directed a trial of preliminary issues concerning the natural and ordinary meanings of the publications, whether those meanings were defamatory, whether they were statements of opinion under section 3(2) of the Defamation Act 2013, and, if so, whether the basis of opinion was indicated under section 3(3).

1. Preliminary issues. The defendants were wrong to contend that meaning could not be determined separately from the underlying facts or any defence of truth. Meaning is commonly determined as a preliminary issue, and that course had been directed in this case. The court formed a preliminary view of meaning before considering the parties’ cases, following the approach in Tinkler v Ferguson [2019] EWCA Civ 819.
2. Meaning. The court applied the principles summarised in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB). The task was to determine the single natural and ordinary meaning conveyed to the hypothetical reasonable reader. The publications had to be read as a whole and in context.
3. Questions in the articles were predominantly rhetorical. The surrounding text supplied the answers and conveyed allegations of dishonest fundraising and lying. Question marks, references to police or other investigating bodies, invitations to make up one’s mind, and offers of clarification did not operate as antidotes to the defamatory sting.
4. Fact and opinion. The court adopted the approach in Haji-Ioannou v Telegraph Media Group Ltd [2020] EWHC 2922 (QB). Meaning and the fact/opinion issue should not be treated in an excessively linear or compartmentalised way. Some passages expressed opinion when read in isolation, but those passages were ancillary. The defamatory meanings conveyed by the publications were asserted facts and none of the meanings was, or contained, a statement of opinion for the purposes of section 3 of the Defamation Act 2013.
5. The meanings of all 19 publications were defamatory at common law. The meanings of the score-draw publications and most agreed publications were not determined afresh because no relevant issue remained between the parties, although the agreed meanings were recorded. A Case Management Conference was directed, with consequential amendments to the statements of case and any contested applications to amend the defences to be considered there.

This was a first-instance trial of preliminary issues in defamation proceedings. On 10 November 2021, Master Dagnall directed the preliminary-issues trial. The High Court determined the meanings, defamatory character and fact/opinion issues, and directed a subsequent Case Management Conference.