Ann-Marie Janice Smith & Anor. v Pastor John Charles Surridge & Ors.

The claimants are secondary school teachers. They worked at Stanborough School (“the School”) until August 2018, when they moved to new teaching jobs.

The claimants say that the School is operated by the British Union Conference of Seventh-day Adventists (“BUCSA”). There is a dispute between the parties about whether the School and BUCSA are a single unincorporated association (the claimants’ case), or separate unincorporated associations (the defendants’ case), although that is not a matter for this hearing.

The first, second and third defendants are said by the claimants to have been trustees of BUSCA, and they are sued on behalf of themselves and all other trustees. The third and fourth defendants are said to have been governors of the School, and they are sued on behalf of themselves and all other governors.

In December 2020, both claimants received conditional job offers for new teaching roles. The offers were made through a specialist employment agency, Dunbar Education.

On 5 March 2021, Dan Brown of Dunbar contacted the School to request references for both claimants. The emails passing between Mr Brown and the School are set out in the Annex to this judgment. During this correspondence, Mr Brown provided the School with two versions of a reference request form (“the Request Form”) which included the following question: “Have there been any allegations or concerns raised against the applicant relating to the safety and welfare of children or young people or vulnerable adults or relating to behaviour towards children or young people or vulnerable adults?”.

On 18 March 2021, the School emailed Dan Brown with its response to his request for references (“the Reference”). This is the publication complained of in these proceedings. It was sent by a school employee, Anna Papaionnou, who was the School’s International Programme Coordinator, Marketing Administrator and Acting PA to the Headteacher. The email was in the following terms:

“Subject: RE: URGENT Reference Request for Kayon Jackson & Ann Smith

Dear Mr Brown,

Thank you for your e-mail.

We can confirm that the applicants worked at Stanborough School during the following dates:

Kayon Jackson Start date: 01/09/2014 End date: 31/08/2018

Ann Smith Start date: 03/09/2014 End date: 31/08/2018

However, I would like to inform you that there were some safeguarding issues during their time at Stanborough School. We will fill in the forms you have sent us in detail and send these to you shortly.” (original emphasis)

The claimants deny that there were any safeguarding issues from their time at the School, and they say the Reference led to their job offers being withdrawn.

The claimants issued proceedings nearly a year later for libel, misuse of private information and negligent misstatement. They seek injunctions to prevent republication of the words complained of, and awards of general, special and aggravated damages.

On 13 September 2022, Lavender J gave directions for a trial of preliminary issues to determine (i) the natural and ordinary meaning of the statement complained of; (ii) whether the statement complained of, in any meaning found, is defamatory of the claimant at common law; and (iii) whether the statement complained of is (or includes) a statement of fact or opinion.

The court’s task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear.

In Jones v Skelton [1963] 1 WLR 1362 the Privy Council explained what is meant by a natural and ordinary meaning as follows:

“The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. …. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.” per Lord Morris at 1370.

The long-established principles to be applied when reaching a determination of meaning were re-stated by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB) at [12]:

“(i)

The governing principle is reasonableness.

(ii)

The intention of the publisher is irrelevant.

(iii)

The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.

(iv)

Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.

(v)

Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.

(vi)

Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.

(vii)

It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.

(viii)

The publication must be read as a whole, and any “bane and antidote” taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic “rogues’ gallery” case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (eg bane and antidote cases).

(ix)

In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.

(x)

No evidence, beyond publication complained of, is admissible in determining the natural and ordinary meaning.

(xi)

The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication’s readership.

(xii)

Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.

(xiii)

In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant’s pleaded meaning).”

The courts now commonly refer to various levels of possible defamatory meaning, to distinguish between different types of defamatory allegation. This was explained by Nicklin J in Brown v Bowyer and another [2017] EWHC 2637 (QB) at [17]:

“Finally, I need to refer to what are called the Chase levels of meaning. They come from the decision of Brooke LJ in Chase –v- News Group Newspapers Ltd [2003] EMLR 11 [45] in which he identified three types of defamatory allegation: broadly, (1) the claimant is guilty of the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3) grounds to investigate whether the claimant has committed the act. In the lexicon of defamation, these have come to be known as the Chase levels. Reflecting the almost infinite capacity for subtle differences in meaning, they are not a straitjacket forcing the court to select one of these prescribed levels of meaning, but they are a helpful shorthand.”

In White v Express Newspapers [2014] EWHC 657 (QB), Tugendhat J said the following in respect of Chase meanings at [10]:

“It does not follow that all words complained of must be fitted into one or other of these categories. And there may be meanings which are less serious than level 3, but if there are, then a dispute may arise as to whether such lower meanings are defamatory at all. The court is not bound to choose between the contentions of the parties as to what the words complained of mean. Judges must make up their own minds.”

In this case, reference has been made to the “repetition rule”. In Stern v Piper [1997] QB 123, Simon Brown LJ defined the rule as follows:

“The repetition rule… is a rule of law specifically designed to prevent [the court] from deciding that a particular class of publication – a publication which conveys rumour, hearsay, allegation, repetition, call it what one will – … bears a lesser defamatory meaning than would attach to the original allegation itself.”

This rule does not mean that the Court is bound to find that the defamatory meaning that attaches to the repetition is, in all cases, at the same level as the original allegation. In Brown (supra), Nicklin J noted at [32] (and see also [19] – [31]):

“When the authorities speak of rejecting submissions that words repeating the allegations of others bear a lower meaning than the original publication that is a rejection of the premise that the statement is less defamatory (or not defamatory at all) simply because it is a report of what someone else has said. That kind of reasoning is what the repetition rule prohibits when applied to meaning. The meaning to be attached to the repetition of the allegation has still to be judged, applying the rules of interpretation… looking at the publication as a whole”.

The approach to be taken when deciding whether words are defamatory was considered by Sir Thomas Bingham, MR in Skuse v Granada Television Limited [1996] EMLR 278 at 286 where he said:

I have first read the words complained of to form a provisional view about meaning, before turning to the parties' pleaded cases and submissions, see Tinkler v Ferguson [2020] EWCA Civ 819 at [9].

In respect of those pleaded cases:

The claimants make the following points in support of their proposed meaning:

The claimants’ skeleton argument asserted that the recipients of the email “must have had specialist knowledge of what are and what is meant by safeguarding issues”. However, during oral submissions, Mr Sterling clarified that the claimants are not saying that the hypothetical reasonable reader had specialist knowledge, and there is no pleaded innuendo meaning. The claimants’ case is put on the basis of general knowledge only.

The defendants make the following points in support of their proposed meaning:

There is a dispute between the parties about the scope of the material that this court should consider as “context” when assessing meaning. The relevant legal principles were summarised by Nicklin J in Riley v Murray [2020] EWHC 977 (QB) at [16]:

“[16] … the following material can be taken into account when assessing the natural and ordinary meaning of a publication:

i)

matters of common knowledge: facts so well known that, for practical purposes, everybody knows them;

ii)

matters that are to be treated as part of the publication: although not set out in the publication itself, material that the ordinary reasonable reader would have read (for example, a second article in a newspaper to which express reference is made in the first or hyperlinks); and

iii)

matters of directly available context to a publication: this has a particular application where the statement complained of appears as part of a series of publications – e.g. postings on social media, which may appear alongside other postings, principally in the context of discussions.

[17] The fundamental principle is that it is impermissible to seek to rely on material, as "context", which could not reasonably be expected to be known (or read) by all the publishees. To do so is to "erode the rather important and principled distinction between natural and ordinary meanings and innuendos": Monroe -v- Hopkins [40]. When I considered this principle very recently, I explained that the distinction was between "material that would have been known (or read) by all readers and material that would have been known (or read) by only some of them. The former is legitimately admissible as context in determining the natural and ordinary meaning; the latter is relevant only to an innuendo meaning (if relied upon)" (emphasis in original): Hijazi -v- Yaxley-Lennon [2020] EWHC 934 (QB) [14].”

Every case will turn on its facts. I was referred to Smyth v Mackinnon (1897) 24 R 1086, which was the case of an alleged libel contained in a letter, where the whole of the correspondence was admissible context on the basis that the other party to the correspondence would have been aware of its contents.

I was also taken to Haviland v The Andrew Lownie Literary Agency Limited [2021] EWHC 143 (QB). Proceedings had been brought in respect of seven emails, each of which had a separate pleaded meaning. Nicklin J noted that no innuendo had been advanced, relying for example on earlier emails. The judge queried whether the readers of the relevant emails would have read the entire email chain, but did not need to resolve the issue because he determined that it would make no difference to the meaning of the relevant email in its proper context.

I acknowledge that as currently pleaded, the publication that is sued upon is the sending of the Reference by email to Mr Brown. Mr Brown was the only recipient of this publication, and so it can be said with confidence that the Annex material would have been known (or read) by all persons to whom the Reference was published. In these circumstances, there is no difficulty in considering the Annex material as either context or part of the publication.

There is, however, an issue between the parties about the claimants’ pleaded case in respect of any dissemination of the information in the Reference to the claimants’ prospective employer. We do not know what was said to the new school, and what material (if any) was provided to them. This will need to be clarified. For now, the claimants’ cause of action is limited to the single act of publication from the School to Mr Brown. The claimants have not sued the defendants on any republication, although damages are claimed to include injury suffered by the information being passed to the new school.

I am satisfied that in this case, it makes no difference to the meaning of the Reference if the material in the Annex is taken into account or not, either as part of the publication, or context. Whilst Mr Brown sent the Request Form to the School on a number of occasions, his covering emails made clear that he did not need the form to be completed. He told the School repeatedly that all he needed was for them to confirm the dates, and that there were no safeguarding issues. The documents show that the School then provided this information. Looking at all the material, the hypothetical reasonable reader would have taken the Reference at face value, and not considered the School to be answering the broader question posed in the Request Form.

If anything, one of the emails in the Annex might be said to strengthen the claimants’ case, if considered as context or part of the publication. The email sent on 17 March 2021 at 1550 by the Headteacher said that there had been “incidents”, and the School was checking to see whether these raised safeguarding issues. The subsequent confirmation by the School that they did, rather suggests to the reader that the School has verified the information, and that something did in fact happen that raised safeguarding issues.

The hypothetical reasonable reader is taken to be representative of those who would read the publication in question. I note that this was formal correspondence between organisations used to dealing with references and pre-employment checks, although the claimants do not suggest any specialist knowledge in this case.

The Reference states that there were safeguarding issues in respect of the claimants during their time at the School.

Safeguarding is a broad concept, and its meaning will depend on the context in which it is used. The term is used here in the context of a school reference. It is reasonable to assume that the focus of safeguarding in a school is on the protection of children from harm, or the risk of harm.

The hypothetical reasonable reader of the Reference will no doubt appreciate that there are a wide range of safeguarding issues that might arise in a school, and they might be extremely serious, relatively low-level, or somewhere in between.

It is of note that the claimants’ proposed meaning focuses on what are arguably more serious types of safeguarding issue, namely abuse and maltreatment. I do not accept that the hypothetical ordinary reader would jump to such a conclusion, not being avid for scandal and recognising that “safeguarding” is a general term with a broad meaning.

I also do not accept that by saying there were “some” issues means that there was more than one issue per person, as the email was sent in respect of both claimants together.

Whether or not the Annex material and the Reference Form are considered as context, the Reference would not have been interpreted by the hypothetical reasonable reader as suggesting that there were merely safeguarding “concerns” or “allegations”, as suggested by the defendants. The language used in the Reference is clear. Such a meaning would, in any event, contravene the repetition rule.

The Reference bears a Chase level 1 meaning, namely that something actually happened that gave rise to a safeguarding issue. There is nothing in the Reference to suggest a need for caution, or to qualify what was being said.

I find that the meaning of the Reference in respect of each claimant is:

This meaning is defamatory at common law. It is common ground that words complained of were a statement of fact.