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Libel: Preliminary Issue Meaning Trials: Where are we now?- Emma Foubister

Related Member(s):
Emma Foubister
Related Practice Area(s):
Media and Information Law

The removal of the right to jury trial in defamation cases by the Defamation Act 2013 has meant that the Courts can determine issues such as meaning as preliminary issues at an early stage. While preliminary issue trials on meaning have now become the norm, the issues and practices that surround them are far from settled. This post considers some recent trends and issues that have arisen in practice.

As an initial point it should be noted that although initially, meaning and serious harm were determined together at preliminary issue trials (see e.g. Ames v The Spamhaus Project [2015] EWHC 127 (QB) at [101]) this practice has now been disapproved.  It became apparent that determining serious harm as a preliminary issue led to additional complexity, delay and cost (e.g. Brown v Bower & anor ([2017] 1 WLR 4703 at [57]). Preliminary issue trials on meaning and fact/opinion are however appropriate as they usually require determination of narrow issues of law where the principles are uncontroversial, and the matter can be dealt with promptly, shortly and inexpensively (Brown v Bower & anor at [36]).

  1. Determination of other matters at preliminary issue meaning trials

At a preliminary issue trial on meaning, courts will often two other issues as well as meaning.  These are the issue as to whether the words complained of are “defamatory at common law” and whether the allegation is one of fact or opinion.  These issues do not usually complicate such hearings in the way that determining serious harm might. The case of Scarsdale Grange LLP t/a Scarsdale Grange Nursing Home v Jpimedia NSMY Ltd [2020] EWHC 1988 (QB) is a recent example a preliminary issue trial on meaning, which also involved consideration of whether those meanings were defamatory at common law and which of those meanings was a statement of fact or opinion.

Considering these questions can further the overriding objective, particularly where they may be determinative of a claim. For example, in Burleigh v Telegraph Media Group Limited [2020] EWHC 2359 (QB) the court found that the publication was not defamatory at common law, therefore disposing of the claim.

  1. Costs budgets for preliminary issue trials

Another recent development is the emergence of the practice of mandatory costs management as a prelude to the hearing of preliminary issue trials. There has also been a move towards limiting the amount of costs which can be claimed for such hearings. In Price v MGN Ltd [2019] 1 WLR 1464 Warby J indicated that “experience suggests that in the general run of cases costs of the order of £20,000 to £25,000 per side are towards the top end of the range, and costs in excess of £30,000 for one side would be hard to justify” [34]. Therefore, in general, it will be difficult to have more than £25,000 costs for the preliminary issue trial approved.

This development has given rise to another subtle question. Usually a costs budget for trial is completed on a precedent H form and directions often include a specific order for that form. When completing a precedent H form, parties are obliged to include incurred costs. Therefore, a party ordered to serve a costs budget for a preliminary issue trial on meaning, with a general limit of £25,000, would in theory be required to include any incurred costs on the precedent H form. This will often far exceed the £25,000 cap, which was only intended to be for the preliminary hearing alone.

There are two possible options for parties in this position. The first is not to specify that a precedent H in the order for costs budgeting, thereby removing the obligation to include incurred costs. The second is to include the preliminary issue trial as a contingency on the precedent H form. This is another (as yet) unresolved question, which may warrant further guidance from the court on the appropriate approach to costs budgeting.

  1. Defendant’s “statement of case”

Although there is no relevant provision in the CPR or the Practice Direction, the practice has developed of defendants being ordered to serve a “statement of case” on meaning. Such an order may take the following form: “D shall serve a statement of case setting out the natural and ordinary meaning which he/she contends is borne by the words complained of”. This practice has generally been viewed as a welcome development, because it enables claimants to know the defendant’s position in advance of the hearing. While there is no rule or practice direction which makes provision for such a document, the courts have been open to making orders for statements of case upon request of the claimant.

  1. Oral hearing or determination on the papers?

There is a developing practice of determining meaning on the papers, rather than at an oral hearing. In Hewson v Times Newspapers Ltd [2019] EWHC 650 (QB), Nicklin J ruled that meaning could be determined on the basis of the parties’ written submissions. To counter the potential adverse impact on the principle of open justice, he proposed a procedure for ensuring that judgments would be handed down in open court and written submissions would be made available. Such determinations are now relatively common.

For some, it is a beneficial development which provides an opportunity to keep costs down. For others, it raises real concerns about losing the opportunity to have an oral hearing and the undoubted benefits that provides, including being able to address any of the judge’s questions that arise from the written submissions.

  1. Characterisation of determination of meaning hearings

Finally, there is a subtle and (as yet) undetermined question as to the difference between: (1) a preliminary issue trial on meaning; and (2) a determination of meaning under PD53B, paragraph 6. On the face of it, the first is a “trial”. Barristers must be robed, it is heard in open court and any decision is final (subject to appeal). In contrast, the second is an interim hearing, which doesn’t demand the same requirements.

The issue of late amendments highlights why the distinction may matter in practice. In Allen v Times Newspapers Ltd [2019] EWHC 1235 (QB), an issue arose because the claimant appeared to be departing from its pleaded case on meaning during the preliminary issue trial. Warby J emphasised that trials on meaning were not meant to be provisional or preliminary; “they are meant to provide a final determination of one or more issues in the claim” [50]. He observed that the authorities on late amendment show that, as a general rule, a party should not be allowed to advance at trial a case which significantly departs from the pleaded case, and which that party has had ample opportunity to formulate beforehand, and this principle applies equally to determinations of meaning [51]. This indicates that the correct approach is to treat the determination of meaning as a trial, rather than an interim hearing.

It appears that the drafter of paragraph 6 did not have this issue in mind. However, for the reasons outlined above, a hearing to determine meaning clearly cannot be both a trial and an interim hearing. Issues such as allowing late amendments would not arise in the same way if a determination of meaning was simple an interim decision, rather than a final determination.

Conclusion

Preliminary issue meaning trials are a very useful procedure for speeding up the resolution of libel claims.  Some will be finally disposed of by a meaning or fact/opinion determination, many others settle after the meaning has been decided.  In view of their importance to libel lawyers it may be useful for them to be the subject of a practice note, or further express provision in the Practice Direction to CPR Part 53.