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Defamation Practice Update: Determination of Meaning before Defence – Kirsten Sjøvoll
This post was originally featured on Inforrm, the International Forum for Responsible Media blog.
A series of recent decisions make it clear that, if meaning is an issue in dispute in a defamation action, there should ordinarily be a trial of meaning as a preliminary issue before the service of the defence. This is an important change in practice.
The meaning of the words complained of in a defamation claim was traditionally determined by the jury at the trial. Since the abolition of juries in libel trials, the parties have been able to have meaning determined by the judge as a preliminary issue at any stage of the proceedings. This would generally occur after service of statements of case but before the full trial, although there would often be great sense in determining meaning as a preliminary issue at an early stage after service of the Particulars of Claim: see e.g. Yeo v Times Newspapers Ltd  1 WLR 971 per Warby J at  to .
However, in the last 12 months there in a series of judgments, Nicklin J has made clear that, in accordance with the overriding objective of the Civil Procedure Rules, a hearing to determine meaning should be held at an early stage and before service of the Defence.
The first judicial statement of this practice was in Morgan v Associated Newspapers Ltd  EWHC 1850 (QB). This judgment dealt with – as preliminary issues – the questions of (1) the meaning of the words complained of; and (2) whether any defamatory imputations conveyed by the article were allegations of fact or opinion. A Defence had been served which raised, amongst other things, a defence of honest opinion and the meaning which the Defendant sought to justify as opinion. At paragraph 8 of the judgment, Nicklin J observes that this was the second case that month in which a fully pleaded defence had been filed before meaning had been determined by the court. He went on to criticise this approach as “potentially … hugely wasteful of costs” as it may result in a Defence needing amendment depending on the ruling as to meaning. He observed that:
“It is not my place to issue practice directions, but consistent with the overriding objective the parties must consider whether the expense of a defence is justified before the Court has ruled on meaning, if meaning is disputed…the overriding objective is to deal with cases justly and at proportionate cost. All of those point, clearly, to disputes as to meaning being determined as a preliminary issue sooner rather than later” .
Thus, while not going so far as to require parties to have meaning determined before a defence is served, this was a strong indication that parties should at the very least consider having meaning determined first.
Nicklin J further elaborated on the desirability of determining meaning – if in dispute – before service of a defence in Bokova v Associated Newspapers Ltd  EWHC 2032 (QB). He noted that while a defendant who seeks to justify as true the words complained of must plead their own Lucas-Box meanings, there was no obligation on a defendant to plead the meaning they said the words bore and there may even have been a rule preventing such a pleading (). However, the judge went on to note the remarks of Mustill LJ in Viscount de L’Isle v Times Newspapers Ltd  1 WLR 49, 58C-D:
“defendant is not yet permitted to set out in his defence what he contends the words complained of mean, although I respectfully agree with the editors of Duncan and Neill on Defamation, 2nd ed. (1983), p. 53, para. 11.11, where they suggest that this rule needs re-examination”.
Noting that this “eminently sensible point” had “still not been embraced even after the advent of the CPR and the increased importance of identification of the disputed issues at the earliest stage”, Nicklin J concluded that while it might “represent a culture shift in defamation pleadings”, if meaning is in dispute and the intention is that it be tried as a preliminary issue by a judge “defendants would be well-advised to make very clear what meaning they contend the words bear, including any ‘common sting’ meaning.”  to .
Referring to his earlier decision in Morgan, Nicklin J cautioned against the “spectre of hugely wasteful litigation” and the dangers of pleading a defence before meaning had been determined.
It now seems that parties would be well-advised to seek a trial of meaning as a preliminary issue at the earliest opportunity and before service of the defence. The consequences of not doing so are starkly apparent from Nicklin J’s judgment in Poroshenko v BBC  EWHC 213 (QB) handed down on 7 February 2019.
In that case, the defendant (represented by one of the counsel who had acted in Bokova) sought an extension of time for service of the Defence pending determination of meaning as a preliminary issue. It did so very close to the deadline for service of the Defence and the claimant’s solicitors responded in strong terms rejecting their proposal. There followed further correspondence and ultimately, the defendant was forced to make an application to the court. Nicklin J was extremely critical of what he termed the “obstructive” response of the claimant’s legal representatives to the BBC’s “obviously sensible” suggestion that meaning be determined before service of the Defence.
Ordering that the claimant pay the defendant’s costs of and occasioned by their application, the judge observed that:
“whilst [trials of preliminary issues of meaning] are not mandatory, once it is clear that meaning is in dispute, the issue should be considered by all parties, and a burden will normally fall on any party who contends that the issue should not be resolved by determination at a preliminary issue trial to present cogent and case-specific reasons why not. The disadvantages of ploughing on, not only to the parties in terms of potentially wasted costs, but also in disproportionate drains on the resources of the Court mean that that burden may be difficult to discharge” 
It is clear, therefore, that not only is there now an expectation that if meaning is in dispute, it will be determined by a judge at the earliest opportunity and probably before service of the defence but that if a party seeks to resist such preliminary determination, they expose themselves to a considerable risk on costs.