The claimant describes himself as a well-known green energy industrialist and environmental activist who has made substantial financial donations to the Green Party and the Labour Party.

The defendant is the publisher of the Daily Mail.

On 9 June 2023, the defendant published an article in the Daily Mail (and through the Mail+ app) under the heading “Labour repays £100,000 to ‘sex harassment’ donor” (“the Article”).

In broad terms, the Article was about donations received by the Labour Party. It reported that the Labour Party had returned a £100,000 donation made by Davide Serra, who was said to be “a high-flying City financier accused of sex harassment”. It also said that the claimant had donated £1.5m to the Labour Party, but then caused the Party embarrassment by joining an “eco-protest” in London, which had blocked traffic around Parliament Square.

The Article comprised the headline identified above, eleven paragraphs of text, two photographs of the claimant and the caption “Road blockers: Dale Vince in London yesterday, and circled as he holds up traffic with Just Stop Oil”.

On 2 October 2023 the claimant issued proceedings for libel. He seeks up to £100,000 in damages, an injunction to prevent republication, and an order under section 12 of the Defamation Act 2013 that the defendant publish a summary of the court’s judgment.

The claimant acknowledges that upon reading the text of the Article, the ordinary reader would appreciate very quickly that he was not the person being accused of sexual harassment.

The claimant does not, therefore, allege in his Particulars of Claim that the words complained of were defamatory of him in their natural and ordinary meaning. He does, however, plead a meaning by way of innuendo.

In Grubb v Bristol United Press Ltd [1963] 1 QB 309, Upjohn LJ explained the difference between a case based on the “natural and ordinary” meaning of words, and one where there is an innuendo meaning, at p.331:

An “innuendo meaning” is now defined in CPR PD 53B at 4.2(4)(b) as “a meaning alleged to be conveyed to some person by reason of knowing facts extraneous to the statement complained of”.

A claim brought by innuendo constitutes a separate cause of action from any based on the words in their natural and ordinary meaning. The claimant is required to plead and prove the facts or circumstances which are said to give the statement a special meaning. In addition, “the plaintiff must prove that the words of the article would convey a defamatory meaning concerning himself to a reasonable person possessed of knowledge of the extrinsic facts. This requirement postulates… not merely a reasonable person but also a reasonable conclusion. Mere conjecture is not enough.”, per Lord Donovan in Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1264B.

The claimant’s innuendo case is pleaded as follows:

The defendant has applied to strike out the claim pursuant to CPR rule 3.4(2)(a) on the following grounds:

CPR rule 3.4(2) provides: “The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim”.

The approach to be taken on a strike out application was considered by the Court of Appeal in Hughes & Ors v Richards (t/a Colin Richards & Co) [2004] EWCA Civ 266 at [22]:

The core principles to be applied were also considered by Warby J (as he then was), sitting as a Judge of the Chancery Division, in HRH The Duchess of Sussex v Associated Newspapers Limited [2020] EWHC 1058 (Ch) at [32] - [33]. An application under CPR 3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true, and must be relevant and sufficient, in the sense that, if proved, they would establish a recognised cause of action. Warby J observed that the Court should not be deterred from deciding a point of law, and if it has all the necessary materials it should “grasp the nettle”, ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725. Where a court is certain that a case as pleaded discloses no reasonable grounds of claim, Warby J noted that the court has a discretion and “it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment.”.

The claimants in Charleston were actors who played characters Harold and Madge Bishop in the television soap, Neighbours. A tabloid published an article under the headline “Strewth! What's Harold up to with our Madge?”, with a sub-heading “Porn shocker for Neighbours stars”. It was accompanied by a photograph seemingly showing the two actors having sex with each other. The text of the article made clear that the photographs had been produced by the makers of a pornographic computer game by superimposing the faces of the two actors onto graphic images.

In the House of Lords, Lord Bridge summarised the issue to be determined at 69F:

Lord Bridge noted that the claimants’ case was being put on the basis that “the eye-catching headline and the eye-catching photograph will first attract the reader's attention, precisely as they were intended to do, and equally plain that a significant number of readers will not trouble to read any further”. He considered, though, that such an approach would fall foul of two principles of libel (at 71F):

Lord Nicholls also considered the position of the reader who only looked at the headline (at 73F):

The principle in Charleston has been applied consistently in many subsequent cases, including:

The claimant accepts the principle established by Charleston, in so far as it applies to cases based on “natural and ordinary meaning”. The claimant also accepts that if the position in law is that readers, to be deemed reasonable readers, must be taken to have read the whole article, or all of the available written material, in every case, then his claim fails.

Mr Busuttil says, however, that Charleston is not about innuendo meanings, only natural and ordinary meanings. He has identified points in the judgment in Charleston which he says show that the House of Lords was keen to emphasise the distinction between the two:

Mr Busuttil says there is no principle in English law, derived from Charleston or otherwise, to the effect that innuendo readers of a defamatory article – in contrast to ‘natural and ordinary’ readers – must be taken to have read the whole article if they are to be regarded as reasonable readers, regardless of their special knowledge or characteristics. He says innuendo readers with special knowledge or characteristics which have caused them to read the text differently must be taken to have read only what they have read, and to have read it reasonably.

The claimant’s case is, therefore, focussed on what Mr Busuttil says is a special class of readers (owing to their special characteristics and knowledge), how they go about reading defamatory material and whether they read all, or only some, of the material presented to them.

Mr Busuttil relies on dicta in Nicklin J’s decision in Falter v Altzmon [2018] EWHC 1728 (QB) which, he says, proceeded on the footing that some innuendo readers may have special knowledge or characteristics which caused them to read a text reasonably, in a way which they otherwise would not. Mr Busuttil says that case is materially indistinguishable from the present one, the only distinction being that while the Falter scenario related to innuendo readers reading something more than ordinary readers, the present case concerns innuendo readers, owing to their special characteristics and knowledge, reading less than ordinary readers.

Mr Busuttil says that the claimant’s pleaded case is not “so obviously untenable that it cannot possibly succeed” or “manifestly groundless”. He says it is pleaded in accordance with established innuendo authority including Falter and is legally orthodox. He says that even if the court considers that the case is “unorthodox but potentially viable”, it should regard it as falling within an area of developing jurisprudence, and allow it to be tried, to enable the facts to be found.

Ms Marzec says that the issue before the court was resolved definitively by the House of Lords in 1995, with the court’s decision having been applied consistently and uncontroversially, since then. The principle in Charleston, that words complained of cannot be read in isolation, applies just as much to innuendo cases as it does to cases where the claimant relies on a “natural and ordinary” defamatory meaning.

Ms Marzec says that the courts have made clear that a reasonable reader is one who reads the whole of an article: again, this is something that applies as much to a reader who is said to be in possession of extrinsic knowledge as to one who comes to an article without such knowledge. She says it is, therefore, irrelevant what an innuendo reader believes about headlines and articles because, if they are a hypothetical reasonable reader, they would have read the whole article because that is what reasonable people do. This must obviously be correct, she says, since it could not be said to be reasonable for someone to glance at a headline or photo and on that basis reach a decision about what an article is saying. She says that any reasonable person would know that they need to read the whole thing.

The defendant says there is no substantive difference between this case and Charleston, except the form of pleading. Here the claimant is attempting to repackage the unsuccessful arguments in Charleston as a case said to be based on innuendo, where there are no significant factual differences that justify such a departure. Ms Marzec says that this case is on all fours with Charleston and so should be struck out. If this attempted work around was successful, she points out that it could be done in every case, which would in effect be the reversal by the High Court of a decision of the House of Lords.

I am going to consider the application on the basis of the claimant’s pleaded case.

I will assume for present purposes that the claimant’s case is properly characterised as being one of innuendo, although for reasons I will return to, I do not think that it is.

The primary question is whether Charleston applies to an innuendo case or whether it is confined to “natural and ordinary meaning” cases, and ordinary readers.

It is for the party seeking to rely on an innuendo meaning to prove the extrinsic facts on which their proposed meaning is based. If a claimant can do so, the court must go on to consider how the ordinary and reasonable reader (with that additional information), would view the words complained of. In doing so, many of the usual principles of meaning apply, including the need to consider the context and circumstances of the publication, which remain a material and necessary part of the determination, see for example Stocker v Stocker [2020] AC 593 and the discussion in Riley v Murray [2020] EWHC 977 (QB) from [13]. The relevant context in this case includes the text of the article. There is no reason in principle why it could be said that this relevant context should be excluded, and doing so would appear to be contrary to clear authority.

Mr Busuttil’s case is put on the basis that the special knowledge caused innuendo readers to read the text differently, he says relying on Falter.

Falter was a claim in respect of an online blog. The defendant had published an article looking at the contrast between the position of the Crown Prosecution Service, which was said to have indicated that there has been no increase in anti-Semitism in Britain, and the position set out by “activist” Gideon Falter in an interview on Sky News, that attacks were on the rise. The website article contained a prominent hyperlink to the interview on Sky News, and invited readers to watch the interview. The defendant in that case argued that readers would inevitably have wanted to watch the Sky News clip to understand what the piece is about, and that this interview provided context that should be taken into account when determining meaning.

Nicklin J observed that it was not possible to put forward a hard and fast rule that hyperlinks imbedded in an article should be treated as having been read by the ordinary reasonable reader. Everything will depend on context.

Nicklin J observed that he did not need to decide the point in his case since he did not consider the Sky News interview affected the view that he would have taken as to the meaning of the article. He did, however, recognise the care needs to be taken when pleading a case based on hyperlinked material. At [17] he said:

I do not read this as supporting Mr Busuttil’s position. In suggesting that a claimant might consider pleading an innuendo meaning, it seems to me that Nicklin J was not commenting on how a class of readers go about reading material. He appears to be applying traditional principles of innuendo, namely recognising that that some readers of the article might have knowledge of extrinsic facts from having viewed the Sky News interview. Nicklin J was not saying that a claimant could seek to exclude parts of an article, or relevant context, by pleading an innuendo meaning.

I cannot see any principled basis for the principles in Charleston not being applicable in this case. The House of Lords considered the position of readers who only look at headlines and photographs, referred to by Lord Bridge at 70C as “limited readers”. For the reasons already outlined, the House of Lords established a clear principle which has been applied consistently in the Court of Appeal and the High Court. Whilst Mr Busuttil is correct in highlighting that the House of Lords referred in places to innuendo claims, in each of the examples given, the court was summarising a legal principle that would not apply in the same way to innuendo cases. There is nothing in the judgment to suggest that the Court was saying that the core point under consideration would not apply in an innuendo case.

It follows that I am certain that this claim is bound to fail, even assuming that the claimant can establish that this is a true innuendo claim and prove the key facts upon which the claim is based. The principle in Charleston is binding on this court, meaning that the headline, photos and caption must be read together with the article. Taken together, it is agreed that the article was not defamatory of the claimant at common law, and so the claim must fail.

I have considered whether to allow the claimant a further opportunity to re-plead his case, but I can see no basis for doing so. The claimant has conceded that if, as a matter of law, Charleston applies, then he does not have a claim to pursue.

I have also considered whether to exercise a discretion to allow the case to proceed, on the basis that the case raises issues that are uncertain and developing, or better considered on the basis of a factual matrix determined at trial.

I do not consider the principles in Charleston to be uncertain, nor developing.

For the purposes of this application, I have taken the claimant’s pleaded case at face value. I did, however, hear further argument about the merits of that claim, which is relevant when considering whether to exercise discretion and allow the case to proceed.

As noted already, I am far from satisfied that this is properly described as an innuendo case. The extrinsic ‘facts’ relied upon are not actually facts. The special knowledge that must be pleaded and proved to establish an innuendo claim must be of facts, and those facts must be objectively true. Ms Marzec points out that there is no authority for the proposition that a cause of action in libel can be founded upon a reader or readers holding certain opinions. Here, she points out that the claimant’s pleaded case sets out no more than an explanation as to why some readers might take the view that they do not need to read an article as a whole before deciding what it means, based on “a set of very vague and wrong opinions as to the way in which “the mainstream UK press” (whatever that is) publishes content”.

Mr Busuttil says that the pleaded case is of matters of fact. He says they would be clearly capable of proof by evidence, and asks the question whether “headlines, prominent photographs and captions to such photographs appearing in articles published in the mainstream popular UK press summarise and encapsulate in an accurate and informative way what is going to be said in the rest of the article” is an issue of fact. He asks: “do they or don’t they?”.

This is of course an impossible question to answer in the manner suggested, which brings us to the second difficulty with the claim.

Ms Marzec accepts that the court should assume factual issues in the claimant’s favour, but not where they are glaringly false. This has been recognised by the courts before, for example where facts pleaded are “contradictory or obviously wrong” (Mohamed Razeem v Vibhutiben Desai [2024] EWHC 689 (Ch)) or “manifestly incapable of proof”, Morgan Crucible Company Plc v Hill Samuel & Co. Limited and ors [1991] Ch 295.

Ms Marzec says the “knowledge” relied upon by the claimant to support his innuendo case is not up for debate. The courts, including the House of Lords, have recognised that isolated parts of articles, such as headlines plus captions, do not always accurately summarise the gist of an article. As we have seen, Warby J also considered the point in Spicer (supra) at [18]. Ms Marzec says that this is why the Charleston principle exists.

It seems to me that it is impossible for the claimant to prove the extrinsic facts relied upon as a statement of universal application. There is a contradiction in the claimant’s case. The claimant accepts that the headline and photograph do not accurately summarise the article, although his pleaded case on “extrinsic facts” is that they always do. There are numerous examples of cases where headlines have failed to accurately summarise an article, including Charleston itself. At its highest, it could be said that some readers will have believed that headlines always accurately summarise the underlying article, but this is no more than an opinion, and is insufficient to support an innuendo meaning. The claim is not potentially viable, and there is no basis for exercising discretion in the claimant’s favour.

Against this background, I grant the defendant’s application to strike out the claim.