Christopher Ness v Jennifer Miller

A claimant must plead clearly the basis on which allegedly defamatory words identify him. A reference innuendo is a distinct cause of action requiring the particular facts relied upon, the persons said to know them and any supporting inference to be pleaded. An informal case document cannot ordinarily replace an amendment to the particulars of claim.

Identification is assessed objectively by reference to the hypothetical reasonable reader or viewer acquainted with the claimant. The claimant bears the burden of showing that the words would reasonably be understood as referring to him. Publication liability may arise where a defendant procures or participates in publication, but speculation or indirect access to information is insufficient to establish procurement.

Christopher Ness brought claims in libel, false imprisonment and under the UK GDPR and Data Protection Act 2018 against Jennifer Miller. The libel claim concerned words spoken in a YouTube video and five emails sent to athletics organisations.

The court tried preliminary issues concerning meaning, defamatory character, fact or opinion, reference to the claimant in the video, and whether the defendant authored or published the emails. The claimant also sought to rely on an informal case document referring to a live-chat comment about “Chris Substack”. The central questions were whether that material could be relied upon without amendment and, if so, whether the video referred to the claimant and whether the defendant procured publication of the emails.

1. Reference to the claimant. The claimant’s pleaded case did not identify any basis on which the words in the YouTube video referred to him. The later reliance on the “Chris Substack” chat comment was an impermissible expansion of the pleaded case. Litigants in person remain expected to comply with procedural rules, particularly where the particulars were professionally drafted and the relevant material was available when they were prepared.
2. A reference innuendo is distinct from a claim based on the natural and ordinary meaning of the words. It requires pleading of the particular facts known to the relevant publishees, their identity and any supporting inference. The informal case document did not satisfy those requirements. Even if it had been treated as part of the pleaded case, the claimant had supplied no sufficient evidence that a reasonable viewer acquainted with him would identify him from the words and the “Chris Substack” comment.
3. The court nevertheless considered the meaning of the video on the alternative assumption that it referred to the claimant. The natural and ordinary meaning was that he had posted online about children in a way that could put their safety at risk. The words conveyed opinion rather than fact because they expressed a deduction or conclusion and included the basis for it. That meaning would have been defamatory at common law. The statement that the speaker would report such conduct to the police contained no defamatory imputation about the claimant.
4. Publication of the emails. A person may be liable for publication by procuring or participating in it. On the evidence, however, the defendant neither asked nor encouraged Lindsay Gauntlett to send the emails and had no advance knowledge that they would be sent. The alleged connection between them was speculative. The possibility that information originating from the defendant reached Ms Gauntlett indirectly did not itself make the defendant a publisher.
5. The court therefore dismissed the libel claim. It declined to determine the natural and ordinary meaning of the emails because the defendant was not their publisher and the publisher was not before the court. The parties were invited to make written submissions on the consequential treatment of the data-protection claims, costs, permission to appeal and directions for the outstanding strike-out application concerning false imprisonment.