Cruddas v Calvert & Ors

The principles of law to be applied by the court to determine the actual meaning of words complained of in a libel action are not controversial. But the principles to be applied in a malicious falsehood action are not agreed. The difference between the two causes of action, so far as meaning is concerned, is that in libel the single meaning rule applies, whereas in malicious falsehood it does not apply.

I shall consider first the claim in libel.

The legal principles to be applied when determining the question of meaning were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14]-[15] (where “he” means “he or she”):

“The legal principles relevant to meaning have been summarised many times and are not in dispute.... They may be summarised in this way: (1) The governing principle is reasonableness. (2) 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. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any “bane and antidote” taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. …”

It is important to stress point (6). The three Articles are a publication to the world at large. The hypothetical reader must be taken to be a reasonable representative of readers of The Sunday Times. What the characteristics of such people might be is a matter of public knowledge. It is a newspaper directed to readers with an interest in and general knowledge of politics.

In Charman v Orion Publishing Group Ltd [2005] EWHC 2187 Gray J cited the guidance of Eady J in Gillick v Brook Advisory Centres which was approved by the Court of Appeal at [2001] EWCA Civ 1263 (it is the guidance that was subsequently repeated in Jeynes). Gray J then explained:

“[11] It appears to me to be particularly important where, as here, a judge is providing written reasons for his conclusion as to the meaning to be attributed to the words sued on, that he should not fall into the trap of conducting an over-elaborate analysis of the various passages relied on by the respective protagonists. The parties are entitled to a reasoned judgment but that does not mean that the court should overlook the fact that it is ultimately a question of the meaning which would be put on the words of the book by the ordinary reasonable reader. Such a hypothetical reader is assumed not to be a lawyer. He or she is very unlikely to read the whole book in a single sitting or to compare one passage with another or to focus on particular phrases. The exercise is essentially one of ascertaining the broad impression made on the hypothetical reader by the book taken as a whole.

[12] A feature of the present dispute on meaning is that each side has pointed to different passages in the book which it maintains is supportive of its case as to the degree of seriousness of the libel. That is commonplace and legitimate. It is well established that the tribunal of fact, whether judge or jury, must take the bane and antidote of the publication together: ... As Lord Nicholls pointed out in Charleston v News Group Newspapers [1995] 2 AC 65 at 73-74, there is an artificiality about this approach since, especially in the case of a book, not all readers will read it from cover to cover. It is, however, clear from that and earlier authorities that the publication must be taken as a whole.”

The parties agree that the whole context is relevant to the determination of meaning. A claimant can (and usually does) select parts of a publication in framing his complaint. But the other parts remain relevant, for otherwise the parts selected might be read out of context.

There is an issue specific to this case arising out of the use of the words “corruptly” in the first meaning which the Claimant attributes to the Articles (para 7 above). The word “corrupt” does not appear explicitly in any form in the Articles, although it does appear in the Editorial in the passage:

“The lesson of the Labour years was that the party’s corrupt relationship with its donors had a corrosive effect on politics and government. Tony Blair himself was interviewed twice by police over ‘cash for peerages’. The Tories appear to be hurtling down a similar path”

The Defendants plead (in para 8.3 of their Defence):

“For the avoidance of doubt, although the Claimant has not explained what he means by ‘corruptly’ in his meaning, it is denied (if it be alleged by him) that the words bore or could reasonably be understood as bearing any allegation of guilt of a criminal offence”.

In response to this the Claimant pleaded in his Reply:

“6.3

In relation to Paragraph 8.3, corrupt is an ordinary word; it was the adjective chosen in the Editorial to describe the relationship between the party and the putative donors. The word connotes bribery; the payment of money, secretly, to obtain something that could not be obtained openly or lawfully. What is more, corruption would be known, to most if not all readers, to be a criminal offence”.

Mr Kelsey-Fry submits that para 6.3 of the Reply is an impermissible attempt to advance in the Reply a meaning which is different and more seriously defamatory than the meaning pleaded in the Particulars of Claim. Moreover, he submits that the use of the word “corrupt” by the Claimant in this context is impermissible for a further reason. He submits that since the passing of the Bribery Act 2010 there has been no criminal offence of corruption and the Article cannot be taken to allege an offence under the pre Bribery Act criminal law. The Claimant could not rely on the word “corrupt” as imputing a crime without pleading a true innuendo, identifying the offence referred to, and proving that readers knew the extrinsic facts. If the Claimant wishes to put forward a case that the Articles meant he was guilty of a criminal offence, he must do so by application for permission to amend, and that application would be opposed. It would be opposed on the grounds that the words complained of are not capable of bearing the meaning that the Claimant had committed a criminal offence.

On 17 May the Defendant issued an application notice asking for an order striking out the last sentence of para 6.3 of the Reply. But once the Defendants had agreed that the trial is to be without a jury, Mr Kelsey-Fry accepts that that application no longer needs to be determined. The Defendants leave it to the court, in arriving at its decision on meaning, to take into account the submission that the Articles are not capable of meaning that the Claimant has committed a criminal offence.

Mr Browne distinguished in his submission “the Corruption meaning” and “the Breach of Electoral Law meanings”. But the whole of the words complained of are to be read together. So what the Articles say in relation to the meetings with the Prime Minister and other Ministers is to be understood in the light of what the Articles say in relation to electoral law, and vice versa.

In relation to the Corruption meaning Mr Browne starts by referring to the headline on the front page “Tory Treasurer charges £250,000 to meet PM”. What was allegedly being sold was secret meetings: see First Article para 1 (“selling secret meetings”) and para 16 (“secret corporate lobbying”) and the Second Article paras 8 (“secret world”), and para 30 (“secretive grouping”). The meetings are also private and personal: First Article (“dinner with Cameron and Samantha”) in a “private apartment” (para 26) or “private venue” (Second Article para 8). As to the benefit that the donor would receive in exchange for the money, Mr Browne refers to the Claimant’s words “it will be awesome for your business” (First Article para 1, and repeated more than once), “lobby the prime minister directly on business issues” (First Article para 10), “business clients” (First Article para 13), and “information” (First Article para 11 and Second Article para 37).

This is said to be a “scandal”: it is what Mr Cameron in 2010 had referred to as “the next big scandal waiting to happen” (First Article para 16 and Second Article para 15). As explained in the Editorial to any reader who did not recall 2010, it was to be compared with the “cash for peerages” scandal under the previous Labour Government, over which the then prime minister had been questioned by police. It contradicts not only what Mr Cameron had said in 2010, but also what Lord Feldman had said did not happen when, the previous November, he had spoken to the Committee on Standards in public life, as set out in the Second Article paras 16-17 (“individuals either influencing policy or gaining unfair advantage by virtue of their financial contributions to the party”). It is “money buying power” and “individuals … influencing policy … by virtue of their financial contributions to the party…” (Second Article para 16).

Mr Browne submits that in using the word “corruptly” the Editorial is doing no more than expressing what a reasonable reader would have understood to be implicit in the Articles that are complained of. The word “corruptly” is an ordinary English word. It connotes serious wrongdoing, sufficiently serious to amount to a criminal offence, although not, in the minds of the ordinary reader (who is not a lawyer), any criminal offence he could name.

Mr Kelsey-Fry emphasised those passages in the Articles which refer to matters which are not illegal. In the First Article at para 14 what is alleged is that the putative donors presented themselves not as persons who were “genuine supporters who do not seek to influence policy”, but as persons with a “shopping list” (Second Article para 4) of commercial benefits. He emphasises that the Article records that the Claimant did tell them that “it was not possible to buy access to the prime minister” (First Article pra 20, Second Article para 50) and that “big donors could not determine policy” (First Article para 28). “Just because you donate money doesn’t give you a voice at the top table to change policy. That doesn’t happen” (Second Article para 53).

In relation to the Electoral Law meanings, Mr Browne submits that the Articles are explicit: there is an allegation of breach of the law. The “problem” that the funds originate from abroad non-British investors is one that the undercover reporters are recorded as making clear in a number of passages (First Article paras 3, 33, Third Article para 1). The Claimant is said to know that that was “banned under British election law” (Third Article para 2, and other passages). But the Claimant was said to be willing to proceed with the proposal because, as Ms Southern is recorded as having told the undercover reporters, “the party don’t pry as to where the money comes from” (First Article para 36 and title to the Third Article), and because he was said to be “happy for the reporters to find a way round” (First Article para 33, Second Article paras 2, 7, 59, Third Article para 2). Given the description of themselves and their clients that the reporters are recorded as having given to the Claimant, it is clear that any way round the election law envisaged by the Claimant, such as the donations being given by the undercover reporters themselves, must be a sham.

Mr Kelsey-Fry submits that the Claimant is stated to have referred the reporters to the “‘compliance people’ to check that it was legitimate” (First Article para 33). The suggested solutions to the problem attributed to the Claimant in the Third Article paras 3 and 4 are, he submits, to be understood by the reasonable reader as suggestions as to how to find a lawful solution to the legal problem. The words quoted in the Third Article para 8 (“Go and see Mike Chattey, talk to him about compliance and then come back to me . . .”) are to be understood as making that clear.

In my judgment the way that the reasonable reader is led to understand what is scandalous is the contrast between what it is alleged in the Articles that the Claimant was selling, and what he, Mr Cameron and Mr Feldman were and had been saying, as reported in the Articles.

In the First Article the explanation for the apparent discrepancy is at para 20 “Cruddas initially gave them the party line that it was not possible to buy access to the prime minister, but then went on to suggest the opposite”. In the Second Article at para 52 the same contrast is made: “Asked whether a donation would buy the right to influence government policy, Cruddas again began cautiously but went on to assure the reporters that the prime minister ‘does tap into us on a regular basis’”.

The contrast between “the party line” and what it was alleged the Claimant was actually doing, or suggesting, is made again in relation to electoral law. The first suggested solution to the problem which is attributed to the Claimant (for the prospective donors to establish a UK company: the Third Article para 3) is described in the Third Article as a “loophole in electoral law”. That might be discreditable, but it could not be understood as illegal: on the contrary.

But in the case of the second suggested solution to the problem attributed to the Claimant (for the prospective donors to funnel money through a third party, such as the reporters posing as executives: the Third Article para 6), the Third Article makes clear that this would be illegal to the Claimant’s knowledge (see the Third Article para 6, and the words “the party won’t pry” in the headline and in the First Article paras 35 and 36). While those words are attributed to Ms Southern, and not to the Claimant, nothing in the Articles can be understood as disassociating the Claimant from that illegal proposal.

In my judgment the single meaning of the Articles is clearly one of corruption. In reaching that conclusion I take into consideration what is, in my judgment, to be understood as an explicit suggestion by the Claimant to the reporters to adopt the illegal solution of funnelling their supposed clients’ funds through themselves as the nominal donors.

All three meanings pleaded by the Claimant in para 6 of the Particulars of Claim are (subject to what is stated below) the actual single meanings which I find the words complained of bear, and these meanings are plainly defamatory.

I turn then to consider Mr Kelsey-Fry’s submission that the meaning in para 6(1) of the Particulars of Claim cannot be relied on by him as an allegation of guilt of a criminal offence.

Words complained of in a libel action must, in accordance with the law set out above, be treated as bearing a meaning that would be understood by the reasonable ordinary reader, not a meaning that would be understood by a lawyer. In my judgment there must follow this conclusion. If a claimant attributes to words complained of in a libel action a meaning that the claimant is guilty of a crime (but without identifying a specific offence known to the law) that pleaded meaning is not defective. It would be inconsistent with the legal guidance set out above if such a pleaded meaning were defective.

By way of illustration, it would be possible for a defendant to allege explicitly that a claimant had committed a crime, albeit that the crime alleged was not a crime known to the law. That would be a defamatory allegation of criminal conduct, notwithstanding the defendant’s error as to what the criminal law provides. Thus a defendant could say of a claimant who she alleged to be a stalker: “He is a criminal: he used to harass me when we were neighbours in the early 1990s, and when we met again in 2005 he indecently assaulted me”. Harassment did not become a crime until the Protection from Harassment Act 1997, and indecent assault ceased to be the name of a crime after the Sexual Offences Act 2003.

The criminal law is subject to repeal and amendment, and the terms used in modern statutes to define offences often differ from the terms used in the preceding common law, or in statutes that have been repealed. But the ordinary member of the public may continue to use the terms that have ceased to be used in the law. Even well informed journalists persist in referring to the issue of a writ, whereas writs were abolished (and claim forms introduced instead) over ten years ago.

In the present case the meaning I have found the words complained of to bear is expressed in ordinary language, and connotes conduct which is criminal in England and Wales. Whether the connotation is correctly made is another matter: but although that would matter on an indictment, it does not matter in a newspaper article.

Mr Kelsey-Fry submits that the connotation is wrongly made, because the word corrupt is not used in the Bribery Act 2010. But I note that, as it happens, the word “corrupt” is still used in the Representation of the People Act 1983 to define criminal offences in electoral law. And there are other offences, most notably under the Bribery Act 2010, which can also properly be described as offences involving corruption as that word is used in ordinary English, albeit that corruption is not part of the statutory definition.

For these reasons I hold that the words complained of bear each of the three single meanings which the Claimant attributes to them in para 6 of the Amended Particulars of Claim.

It is not very common for a personal claimant to advance a claim simultaneously in defamation and in malicious falsehood, but there are such cases from time to time. A claimant is entitled to choose his cause of action: Joyce v Sengupta [1993] 1 WLR 337. While writing this judgment I was also finalising a reserved judgment in Euromoney Institutional Investor PLC v Aviation News which I heard on 2 May 2013 (“Euromoney”). Euromoney is a claim by a corporation (or two, if I give permission) against a corporation and individual who are in competition with the claimant(s) in the provision of services. The complaint arises from comparative advertising. Malicious falsehood is one of the torts which is most commonly relied on in disputes between competitors in business (others being infringement of trade mark and passing off). But rival businesses can and do also sue each other in defamation. It so happens that there is some overlap in the arguments that I heard in this case and in Euromoney. Mr Barca’s submissions on how Ajinomoto is to be interpreted are similar to Mr Browne’s.

In defamation a defendant’s liability does not depend upon fault (whether negligence or malice in fact). But in malicious falsehood it does depend on proof of malice. So a defendant may well ask a claimant, as the Defendants did in this case, to explain whether he maintains that he could succeed with the claim in malicious falsehood if the claim in libel were dismissed. The Claimant’s solicitors replied as follows on 12 April 2013:

“In a libel claim the court will determine the single meaning borne by the published words. As explained by the Court of Appeal in Ajinomoto v ASDA [2011] QB 497, the single meaning rule has no application in malicious falsehood. If, for the sake of argument, the Court were to accept that the single meaning of the words complained of for the purposes of the libel action was your clients’ Lucas Box meaning and that that meaning was substantially true, it would nevertheless be open to the court to find that a significant number of the readers of the article would nevertheless have understood the words to bear the meanings pleaded by our client. Assuming the other ingredients of the tort were made out, he would be entitled to damages and the vindication that would come from the finding that those meanings were false”.

In other words, a malicious falsehood claim may enable a claimant to prove false a meaning which he could not prove to be false in a defamation action. That may happen in a number of different circumstances. It may happen, as the Claimant feared in this case (unnecessarily as it has turned out, if I am right) that the meaning which he wishes to prove false is ruled out as not being a defamatory meaning which the words are capable of bearing, or, even if it is, on the ground that it is not the single meaning the court holds the words to bear. It may also happen in cases where the defendant elects not to plead a defence of truth. If the defendant does not allege truth the court will, of course, apply the presumption of falsity. But the presumption of falsity is a far cry from proof of falsity.

In the present case, as in many cases, the Claimant holds his reputation to be beyond price, or at least beyond any price that he could be liable to pay in the form of the costs of the litigation. Damages would be of value to him for what they symbolise in terms of vindication. It is not like a personal injury or other tort claim where damages are the main objective sought by the claimant. So even though any damages for malicious falsehood would be likely to be lower than any damages for libel, the proof that the allegations complained are false would more than make up for that in the Claimant’s eyes.

In the light of the decision I have reached on meaning it may be that the claim in malicious falsehood will not need to be adjudicated upon. But the arguments that I heard on the law on malicious falsehood are of importance, if not for this case now, then certainly for other cases (including Euromoney). In any event, judges must always contemplate the possibility that they might be held to have erred in any decision, including a decision on the natural and ordinary meaning of words complained of. It is tempting not to try to resolve the difficult points raised, all the more so because this judgment had to be circulated in draft on Friday 24 May (the last day of term) if the parties were not to be delayed in their preparations for trial. Given more time the judgment might have avoided errors or omissions. But not to deal with all the points raised also carries serious risks for the parties.

Since the ruling on the actual meaning of the words complained only became possible on the Friday before the Tuesday of the hearing (with the concession that the trial be by judge alone) the arguments on meaning in malicious falsehood were prepared late. In the case of Mr Browne, they were prepared with Mr Nicklin over the weekend, and in the case of Ms Rogers (who conducted this part of the oral argument) they were prepared with Mr Kelsey-Fry and Mr Eardley overnight after the adjournment on the Tuesday. The quality of the arguments on each side does not appear to me to have suffered one bit from the shortness of the time available.

Before rehearsing the submissions, it is helpful to summarise what happened in Ajinomoto, both at first instance, and in the Court of Appeal. Before that decision it had been understood that the single meaning rule applied not only to the determination of meaning in defamation but also to the determination of meaning in malicious falsehood: Vodafone Group PLC v Orange Personal Communications Services Ltd [1997] FSR 34 at p38 (albeit that in that case Jacob J expressed some doubt upon the point). I would add that a single meaning rule applies to issues of meaning in some other fields of the law, including the interpretation of deeds, contracts and statutes. As Diplock LJ said at p172: “the notion that the same words should bear different meanings to different men and that more than one meaning should be 'right' conflicts with the whole training of a lawyer”. And even in libel the single meaning rule does not always apply (most notably, it does not apply in Reynolds privilege).

In Ajinomoto there was no claim in libel. The claim in malicious falsehood arose out of the words on the packaging of food containing a sugar substitute known as aspartame. The claimant pleaded that the words complained of bore a number of natural and ordinary meanings, which it set out, just as it would have done if the claim had been in libel: see [2009] EWHC 1717 (QB), [2010] QB 204 at para [5]. The court had ordered that there be a trial of a preliminary issue on meaning, again just as is commonly ordered in defamation actions: ibid para [10]. That issue came before me. At first instance I held that the single meaning rule which applies in defamation also applies in malicious falsehood: para [39]. Applying the same principles as set out in Jeynes, I then arrived at the single meaning.

The Court of Appeal held that the single meaning does not apply to malicious falsehood. But that was the only point on which the Court of Appeal overturned my judgment. That court did not hold, and was not asked to hold, that the exercise of determining meaning by a trial of a preliminary issue should have been conducted differently, or should not have taken place at all.

The process by which I reached the single meaning is described by Sedley LJ as follows:

“7.

Three possible meanings were ascribed to this packaging by the claimant: A: That aspartame is harmful or unhealthy. B: That there is a risk that aspartame is harmful or unhealthy. C: That aspartame is to be avoided. The defendant averred that it meant D: That these foods were for customers who found aspartame objectionable.

8.

… Tugendhat J rejected meaning A outright. It accordingly leaves the stage. He found that a substantial number of consumers would derive meaning B from the packaging. He also found that a substantial number would derive meaning D from it. Meaning C, he found, added nothing to meaning B, and it too accordingly leaves the stage.

The judge then applied to meanings B and D the single meaning rule.”

The submission for the claimant on the appeal did not include an argument that meaning A should not have been excluded. The appeal proceeded on the basis that the court was concerned only with those meanings which reasonable people might put upon the words complained of.

At para 1 Sedley LJ had said:

“In defamation cases, both civil and criminal, there has for centuries been a rule that the question libel or no libel is to be answered in respect of a single meaning. This is unproblematical where there is only one thing that the words can sensibly mean, but it can be highly problematical where reasonable people might put more than one construction on the words read in their proper context.” (emphasis added)

At para [33] he said:

“On the judge's unchallenged findings, the meanings which reasonable consumers might put on [the Defendant]'s health-food packaging include both the damaging and the innocuous. Why should the law not move on to proof of malice in relation to the damaging meaning and (if malice is proved) the consequential damage without artificially pruning the facts so as to presume the very thing – a single meaning - that the judge has found not to be the case?” (emphasis added)

As I understand it, the decision of the Court of Appeal in Ajinomoto does not expressly cast any doubt on the correctness of the reasoning at first instance up to the point at which I held that I was bound to choose only one of the two meanings which I had held a reasonable reader could understand the words complained of to mean. The Court of Appeal held that any meaning which a reasonable reader could understand the words complained of to bear should go forward. But there was no suggestion that there should also go forward any meaning which the court has held only an unreasonable reader could understand.

Nor does the judgment of the Court of Appeal in that case cast any doubt on the correctness of importing the principles set out in Jeynes into a decision on meaning in a malicious falsehood claim, in order to exclude an unreasonable meaning (as I did: [2009] EWHC 1717 (QB); [2010] QB 204 at para 28).

The principles in Jeynes were formulated for hearings in defamation actions under PD 53 para 4. In those hearings the question is what meaning words complained of are capable of bearing, not what meaning they actually bear. At that stage of a defamation action the court is not concerned with the single meaning rule, but to delimit a range of possible meanings. The court is concerned to exclude any meaning which the words complained of are not capable of bearing. The single meaning rule applies at the trial of a defamation action when the court must decide what the words complained of actually mean. For that purpose, the first words in principle (7) do not apply (“In delimiting the range of permissible defamatory meanings…”), because the court is not finding a range of permissible meanings, but one single meaning.

At the stage of PD 53 para 4 the court is regularly engaged in the exercise of determining the range of possible reasonable meanings. So the exercise which the Court of Appeal in Ajinomoto contemplated should be carried out at the trial of a malicious falsehood action is one with which the court is familiar.

Sedley LJ set out the status of the single meaning rule, and some (but not all) of the well known criticisms of it made by Diplock LJ as follows:

“3.

The fiction that there is a single reasonable reader, so that words, duly taken in context, have only one meaning, has remained embedded in the law of defamation. In his classic judgment in Slim v Daily Telegraph [1968] 2 QB 157, 172 endorsed in Charleston v News Group Newspapers[1995] 2 AC 65, 72 Diplock LJ said:

“the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law confides the responsibility of determining it”.

He said, at p173:

“Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel”.

He said, at p174:

“Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the ‘right’ meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single 'natural and ordinary meaning' which is 'right,' survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel.”

4.

In the circumstances it is surprising – it might even be thought gratifying - that neither of the very experienced leading counsel appearing in the present appeal could recollect a case in which a judge had had difficulty in directing a jury in accordance with the single meaning rule, or in which a jury had evinced difficulty in applying it.”

The Court of Appeal declined to apply the single meaning rule to malicious falsehood for reasons explained by Sedley LJ as follows:

“27.

The choice we are presented with is constrained by an immovable object, the single meaning rule in libel. Nothing we decide can have any impact on this: as Diplock LJ said in Slim, it has passed beyond redemption by the courts. What we have in the first instance to decide is whether, given its presence, it ought to be equally applied to the tort of malicious falsehood.

28.

…. I find much more realistic Mr Caldecott's approximation of the two torts with which we are concerned on the ground that both concern the protection of reputation, albeit one protects the reputation of persons and the other the reputation of property, typically in the form of the goodwill of a business.

29.

Both also attract similar human rights considerations because both involve a value protected by ECHR article 10(1). The brief debate about the presence of a countervailing article 8 value in libel and its possible (but to my mind doubtful) replication in relation to malicious falsehood by the property right in article 1 of the First Protocol is far less relevant than the controls built into both torts by article 10(2).

30.

But when all this is said, the two are not so close as to be variants of a single tort, as libel and slander might be said to be. For historical reasons they have developed with different characteristics; they make different demands on the parties; and they offer redress for different things. This is the gap across which it is sought to make the single meaning rule jump.

31.

In my judgment the powerful reasons advanced by Mr Caldecott for doing this are outweighed by one dominant fact: the rule itself is anomalous, frequently otiose and, where not otiose, unjust.

32.

The anomaly is very nearly common ground. With the help of counsel's scholarship we have seen how a pragmatic practice became elevated into a rule of law and has remained in place without any enduring rationale. It is frequently otiose, as counsel's own experience testifies, because in the great majority of defamation cases the choice between libel and no libel, by the time the case goes to a verdict, is an either-or choice.

33.

But where it is capable of being applied, as it is in the present claim, the rule is productive of injustice. On the judge's unchallenged findings, the meanings which reasonable consumers might put on Asda's health-food packaging include both the damaging and the innocuous. Why should the law not move on to proof of malice in relation to the damaging meaning and (if malice is proved) the consequential damage without artificially pruning the facts so as to presume the very thing – a single meaning - that the judge has found not to be the case?

34.

I do not accept that doing this will make trials of malicious falsehood claims unwieldy or over-complex. This is not because these claims are always tried by a judge alone: the experience of common law judges is that juries are on the whole very good at assimilating and applying sometimes complicated directions. It is because it makes the trial of the issues fairer and more realistic. Instead of (as here) denying any remedy to a claimant whose business has been injured in the eyes of some consumers on the illogical ground that it has not been injured in the eyes of others, or alternatively (and Mr Caldecott's case necessarily involves this) giving such a claimant a clear run to judgment when in the eyes of many customers the words have done it no harm, trial of plural meanings permits the damaging effect of the words to be put in perspective and both malice and (if it comes to it) damage to be more realistically gauged.

35.

For these reasons I would hold that the single meaning rule is not to be imported into the tort of malicious falsehood.”

Rimer LJ gave similar reasons, but with more emphasis on the injustice that the rule might cause. He said:

“41.

The potential for injustice in the present case flows from the fact that, before discarding it as legally irrelevant, the judge made the finding he did as to meaning B. If the case were allowed to go to trial and the claimant were able to prove that such meaning was false, uttered with malice and calculated to damage it, why should it not be entitled to damages for the injury which the falsehood will have caused it? More importantly – and this is the primary remedy the claimant wants – why, if it can prove its case, should it not be entitled to have the defendant restrained by injunction from doing that which it wants to do, namely (presumably for its own commercial benefit) to continue to publish a falsehood that will continue to damage the claimant in the eyes of a substantial body of consumers? The result, however, of the application by the judge of the single meaning rule is that that body of consumers is removed from the court's radar. The court instead satisfies itself with the fiction, contrary to its own finding, that the entire consuming public will interpret the defendant's packaging as bearing a single innocuous meaning.

43.

… The application of the rule can also be said to carry with it the potential for swinging the balance unfairly against one party of the other, resulting in no compensation in cases when fairness might suggest that some should be due, or in over-compensation in others. No doubt it would keep the common law tidy if the single meaning rule were also applied in malicious falsehood claims, particularly because there will be cases in which a claim might be brought either in defamation or malicious falsehood. The common law has, however, never worried about tidiness. It has always been more concerned with meeting the justice of the particular case and developing itself accordingly. If the single meaning rule did not exist, I doubt if any modern court would invent it, either for defamation or any other tort. If the resolution of the present claim has to be forced into the artificial straitjacket of that rule, it will, I consider, carry with it the potential for the production of an injustice. The court ought only to risk the suffering by the claimant of such injustice if there are compelling policy reasons why the single meaning rule, itself an anomaly, ought to prevail in malicious falsehood claims as in defamation.”

Mr Browne submits (for reasons explained more fully below) that it follows (or ought logically to follow) from Ajinomoto that:

“As the issue is whether any substantial number of readers of the words complained of would understand the words complained of in the meaning(s) alleged by the Claimant, the focus moves away from the notional meaning attached by a hypothetical reader, to the actual meaning understood by real readers (or a substantial number of them). Evidence on this issue is therefore admissible.”

He referred to the evidence of Mr Adams, all of it in documentary form derived from documents produced on disclosure. Mr Adams, was, as stated in the article written by himself, a lobbyist (and Labour Party supporter), a former private secretary to two Prime Ministers, and the person who was given credit for having alerted The Sunday Times to the story, after he had heard remarks by Ms Southern which raised his suspicions. As stated in the Skeleton Argument Mr Adams:

“thought that what the Claimant had done was (a) corrupt and (b) a breach of electoral law”

Mr Adams’ belief was, he submits, based, as Eady J said, “simply on the content of The Sunday Times articles”: Cruddas v Adams [2013] EWHC 145 (QB) para [23]. (After provoking the Claimant to sue him, Mr Adams did not in the event plead truth, and Eady J awarded damages to the Claimant).

To prove these matters the Claimant seeks to rely upon e-mails and text messages exchanged between Mr Adams and the Defendants before and after publication of the print issue of the Articles, upon the fact that, after reading the Articles he “promptly reported the Claimant to the police on the evening following publication”, and upon the transcripts of two interviews on Monday 26 March 2012 broadcast on Radio Four and Five Live. Extracts of these interviews are quoted in the Skeleton Argument.

Mr Browne in his Skeleton argument sought to rely, in addition, on publications by other readers in order to prove what they had understood the Articles to mean. The Skeleton Argument includes the following:

“The Claimant relies upon these publications to establish that a substantial number of readers understood the Articles to bear the meanings pleaded by the Claimant.

a)

Sunday Mirror (25 March 2012):

“Cruddas was allegedly prepared to go ahead with the arrangement even though he was told the money would be from a fund in Liechtenstein that would not be eligible to make donations under electoral law.”

b)

David Miliband appeared on the Andrew Marr programme on the BBC on the Sunday morning (the day of publication). He said, “the idea that policy is for sale is grotesque”. Asked by Andrew Marr what was different about this case from the usual lobbying in politics, Mr Miliband said it was “the secrecy”.

c)

The Mail on Sunday (25 March 2012) made David Miliband’s quote one of its sub-headlines for the story:

• David Miliband says idea that policy is for sale is 'grotesque'

“ ... According to The Sunday Times, he believed that any prospective donations from the reporters - pretending to be wealth fund executives - would come from Liechtenstein and would be ineligible under election law. They are said to have discussed the creation of a British subsidiary and the possibility of using UK employees to make the donation.”

d)

Birmingham Mail (26 March 2012):

“... According to The Sunday Times [Cruddas] believed that any prospective donations from the reporters would come from Liechtenstein and would be ineligible under election law.”

e)

The Herald (26 March 2012):

“... With Westminster fighting to recover its reputation following the MPs’ expenses scandal, evidence of influence-peddling emerged at the weekend. Recently appointed Peter Cruddas resigned within hours of being exposed soliciting large donations in return for meetings with ministers and the chance to influence policy... He is said to have been led to believe the donations would come from Liechtenstein and would therefore be ineligible under election law. The discussion is said to have included the creation of a British subsidiary and the possibility of using UK employees to make the donation...”

f)

Jack Straw MP on the Today programme on Radio Four (27 March 2012:

“... there is a prima facie case for the Electoral Commission to investigate whether there has been a breach of rules, potentially a breach of the criminal law by Miss Southern and Mr Cruddas.”

g)

Belfast Telegraph(27 March 2012):

“... former Tory co-treasurer was caught on film telling undercover reporters that ‘premier league’ gifts could secure meetings with ministers and influence policy... Labour will today keep up the pressure on the Prime Minister by challenging him over Mr Cruddas’s suggestion to undercover reporters from The Sunday Times that the Tories might be able to find a way around the law banning foreign donations...”

h)

Melanie Phillips (writing in the Western Morning News 28 March 2012):

“... it beggars belief that anyone in politics would ever again explicitly solicit party donations in return for political access and influence... [Mr Cruddas] was forced to fall upon his sword because he was bang to rights.”

i)

Radio Four You and Yours (27 March 2012) caller in to the programme, Carol:

“...the lobbying, which seems to me to give so many opportunities for corruption. And also one of your contributors said that there had been no wrongdoing in this case when in fact there had as the Tory party treasurer had offered to disguise donations that had come from outside the UK which I understand is, so it’s leading to all kinds of corrupt practices.”

j)

Mary Riddell in the Daily Telegraph (27 March 2012):

“This scandal looks different. Mr Cruddas’s suggestion that policy is for sale to the highest bidder makes most political bagmen look like St Augustine...””

In a third category of evidence Mr Browne sought to rely on the following, as set out in the Skeleton Argument:

Mr Browne submitted that these publications are evidence which demonstrate the meanings that those who have read the Articles have in fact put upon them. They provide a compelling basis on which the Court can safely conclude that a substantial (i.e. more than minimal) number of readers would have understood the Articles to bear the meanings pleaded in Paragraphs 6(1) to 6(3) of the Amended Particulars of Claim.

These submissions were at that stage based solely on what Mr Browne submitted must be inferred from Slim and Ajiniomoto. He relied in particular upon the passage in Slim at p172G-173A:

“However innocent an impression of the plaintiff's character or conduct the publisher of the words intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of words, they did bear a defamatory meaning. This would be rational enough if the purpose of the law of libel were to afford compensation to the citizen for the unjustifiable injury to his reputation actually caused by the publication of the words to those to whom they were communicated. But although in assessing damages the courts now accept this as the purpose of the civil action … , we refuse to accept its logical corollary that the relevant question in determining liability for libel is: "What did those to whom the words were published actually understand them to mean?" The best evidence of that would be the evidence of the persons to whom the words were actually published. Yet, save in exceptional cases where a "legal" innuendo is relied on, it is not even permitted to ask a witness to whom the words were published: "What did you understand them to mean?" What he did actually understand them to mean does not matter. This too might be rationalised on the ground that the publisher of the words ought to be responsible in law only for the injury caused to the plaintiff's reputation by those defamatory inferences which a reasonable man might draw from the words published, and the witness to whom the words were published may not have been reasonable in drawing the defamatory inferences which he in fact drew. But this rationalisation breaks down once it is conceded, as it has been by the House of Lords in Lewis v. Daily Telegraph that one man might be reasonable in drawing one defamatory inference from the words and another man might be reasonable in drawing another defamatory inference.” (emphasis added)

Mr Browne submitted that it follows from what the Court of Appeal did say in Ajinomoto that it is now permitted in a malicious falsehood case to ask the witnesses to whom the words were published “What did you understand them to mean?”. That is the “logical corollary”. The inference that this is so is also to be drawn because the considerations of justice that led to the rejection of the single meaning rule also mandate that the court at a trial should receive evidence of what people actually understood the words complained of to mean. As Mr Browne put it, the ban on evidence is born of the single meaning rule and must go with that rule.

He referred in reply to cases where the court had heard evidence. In Clark v Associated Newspapers Ltd [1998] 1 WLR 1558 it is recorded at 1566E-1569A that

“the plaintiff had called 22 witnesses who gave witness statements to the effect that they, when they read the articles by reason of the heading they believed that it was written by the plaintiff.”

Mr Browne submitted orally that evidence which is relevant to meaning is commonly admitted in passing off actions, and in the trial of libel actions. The claimant in a libel action commonly calls evidence from family and friends. That evidence goes to damages, but damages must be assessed in the light of what they understood the words to mean. In some cases the claimant claims damages for republications (Slipper v BBC [1991] 1 QB 283), and in those cases the meaning of the alleged republications may need to be determined, for if the meaning is different from that of the words complained of, then they are not republications and can be sued on (if at all) only as independent torts.

Mr Browne submitted that the meaning rules in defamation and malicious falsehood should be the same, for the reasons given by Diplock LJ in Slim at p172G-173A. It is anomalous that they should remain different.

In the Skeleton Argument prepared overnight the Defendants submitted that the following questions arise, and that the answer should be:

(1)

In principle, is evidence admissible on the issue of whether, for the purposes of malicious falsehood, the words complained of conveyed the meanings which a claimant contends were false and published maliciously? No

(2)

If yes, are there nevertheless limits as to the circumstances in which evidence is admissible on that question? (If this arises: which it does not, if the Defendants’ answer to (1) is correct): evidence is admissible only where (without evidence) judge would be at a disadvantage vis-à-vis the likely readership of the words complained of.

(3)

If evidence is ever admissible, are there nevertheless circumstances in which the court should exclude it pursuant to CPR 32.1(2)? Yes, in particular where the Claimant seeks to prove his case without calling the publishees and/or the publishees may be pursuing their own agendas.

(4)

Can/should any of the Claimant’s evidence on meaning be admitted in this case? No

(5)

If yes, does that evidence support the Claimant’s case? No

Ms Rogers accepts that on an issue of innuendo, and an issue of reference (identification of a claimant), evidence is admissible in libel actions. But, so she submits, the explanation for that is the special knowledge in question which would be outside the knowledge of the judge (or jury). Even in such cases the evidence is not conclusive (Gatley paras 34.27 to 34.28).

In the course of Mr Browne’s submissions I had reminded him that in Lewis v Commissioner of Police of the Metropolis [2011] EWHC 781 at [56]-[72] I had held that evidence could be relied upon in the circumstances of that case, citing Garbett v Hazell, Watson & Viney Ltd [1943] 2 All ER 359. He made no submissions on Lewis, but Ms Rogers did. She submits that the decision I reached was wrong. She submits that the report of Garbett does not record whether the trial judge had taken the evidence of the witnesses into account on meaning or, if so, whether that was relied on as constituting a ground for appeal. Evidence as to the meaning of the words complained of in malicious falsehood was not admissible, except where the words were incapable of being understood without extrinsic evidence (i.e. a situation similar to innuendo in libel): The Royal Baking Powder Company v Wright, Crossley & Co (1900) RPC 95 (HL): see 98, lines 8-12; 99, lines 50-54; 101, lines 24-26 & 52-55; 102, lines 30-34.

Ms Rogers submitted that the references to passing off made by Mr Browne in his oral submissions were erroneous. She cited Interflora Inc v Marks and Spencer Plc [2012] EWCA Civ 1501; [2012] FSR 21 at [26]-[34], Parker-Knoll Limited v Knoll International Limited [1962] RPC 265 (HL) at 289, lines 23-27, Clark v Associated Newspapers Ltd (also reported at[1998] RPC 261, at 271 (lines 27-36)) and Dalgety Spillers Foods Ltd v Food Brokers Ltd [1994] FSR 504, at 527.

On the effect of acceding to Mr Browne’s submission Ms Rogers argued:

“Admitting evidence of the readers of the words would greatly lengthen and complicate proceedings. In particular, any mass media publication on a matter of public interest is likely to be followed by all sorts of republication, reaction and comment, as well as further investigations and publications by third parties. All of this materially would have to be looked at on the issue of meaning if C were right.

(5)

Taking the step advocated by C would involve a further divergence from the position in libel (despite there being “powerful” arguments against even taking the first step of jettisoning the single meaning rule: see Ajinomoto above), with particular potential to complicate matters in cases where libel and malicious falsehood are pleaded in tandem.

(6)

Points (4) and (5) above raise serious issues as to compatibility with Article 10 of the European Convention on Human Rights. It is well established that the cost of and complication of dealing with a case may amount to a disproportionate infringement of Article 10(1). Publications on public interest matters routinely spark extensive further debate: that is part of their value. There would be a significant chilling effect if the original publisher not only had to answer for their own words but also had to address, in the course of defending liability, how subsequent publishers had understood the original publication (whether by reference to calling the publishers of, or by seeking to build a case based on an interpretation of the precise meanings of, what may be a large number of subsequent publications). It is no answer to say that such material would have to be looked at on damages in any event: the court can control material relating to damages on case management grounds in a way that it cannot on questions of liability: see e.g. Clarke v Bain [2008] EWHC [2008] EWHC 2636 at [54]-[61].

(7)

Similarly, the court ought to be concerned with the increase in costs to the court and the parties of reviewing potentially large amounts of evidence which, ultimately, do not determine the issue the court has to decide.

(8)

C’s concerns about any potential infringement of Article 8 are not to the point. If there were to be any concern about article 8 (or, in the context of a malicious falsehood claim, perhaps more pertinently Protocol article 1) raised by the single meaning rule, then it is addressed by the abandonment of that rule in malicious falsehood (Ajinomoto) and the move to a position where variant meanings conveyed to reasonable readers are taken into account. Article 8 and the protocol cannot possibly be relied upon to mandate a rule of evidence in domestic law, where the substantive law is compliant.”

Ms Rogers submits that under CPR 32.1(2), the court will have regard to the overriding objective and, accordingly, the need for evidence to be restricted to matters which will be of real assistance to the court on the matters in dispute and which can be accommodated without unnecessary complication and proliferation of side issues. The likely exclusion of survey evidence in trademark cases, where the party seeking to rely on the evidence cannot vouch for it as being representative, or there are otherwise doubts about its reliability, is an example. Here, the following consideration will be relevant:

“(1)

There is a relevant distinction between evidence from a witness, who says that s/he read the article and understood it to mean x or y, and a document created by a person which, though it does not directly address meaning, is relied upon as evidence of what that person has understood. In the first case, the witness’s evidence will be directly on point and there can be cross-examined to establish whether s/he is reasonable or not. In the second case, the meaning which the writer is said to have derived from the article can only be inferred, and unless s/he is called, it will be difficult or impossible for the court to assess whether (i) what s/he has written does indeed reflect the writer’s understanding of the article; and (ii) if so, whether the writer is to be regarded as a reasonable person.

(2)

The problem is particularly acute (and the value of the evidence correspondingly diminished) in the case of newspaper articles (or broadcasts) which report or follow up an article published by a newspaper which is defending a malicious falsehood (and libel) claim. The question is whether the evidence shows that a significant number of reasonable readers understood the (first) newspaper article to bear the meanings alleged by the claimant. The court would first have to interpret what the second article meant (which begs the question: by what standard? Presumably not a single meaning rule?). Even then, how can the court conclude (absent evidence from the writer or editor responsible for the publication) that, having read the first article (if they did), they (reasonably) understood it that first article to bear the same meaning(s) as are conveyed by the second article? The second article may be the product of multiple sources, or a desire of the second newspaper to put a particular “spin” on facts alleged by the first newspaper, or its writer may be wholly unreasonable. None of this can be established unless the claimant calls the writer/editor/publisher of the second article.

(3)

Similarly, statements by individuals, made in response to the publication, must be treated with the greatest caution if they have personal or political agendas which may be served by putting a particular gloss on the words. Again, such evidence is unlikely to be of any real value to the court unless, at least, the individual is called by the claimant and established to be a reasonable person whose reaction reflected their genuine understanding of the article.

(4)

The court is unlikely to be assisted by the evidence of individual publishes unless they can be shown to be representative of a substantial proportion of the readership.

Ms Rogers then advanced submissions directed to each of the pieces of documentary evidence relied on by Mr Browne, including points which she said undermined the weight of the evidence of the individuals who expressed views in the various circumstances relied on. Further, she submitted that the court could not just rely on the extracts set out in the Claimant’s Skeleton Argument. It would be necessary for the court to listen to the whole of the broadcasts, and, where these had become available, read the transcripts.

She noted that Mr Adams’ involvement with the journalists, and the campaign that he conducted against the Claimant as recounted in the judgment of Eady J mean that he is not a witness whose evidence on meaning can be relied on. As to the newspaper articles sought to be relied on, Ms Rogers asks what the court is to do. It is not clear from those articles what the writer had understood from The Sunday Times. She notes that there are no witness statements from the other individuals whose comments are sought to be relied on (the time for service of witness statements has passed). Mr Miliband and Mr Straw are politicians with a political agenda to advance. There is no evidence as to who “Carol” in the radio phone in is, or even whether she read the Articles. She was one of a number of participants in the broadcast, but only her words are sought to be relied on. The authors of the opinion pieces are arguing a case on the role of the press. It is unclear upon what the article in The Independent was based on, and it is to be inferred it was based on information in addition to the Articles. Until receipt of the Claimant’s Skeleton Argument, the Defendants had understood The Independent to be relied on only in aggravation of damages. The evidence relating to the Private Eye papers is also incomplete.

The judgment of Lewison LJ in Interflora at p 460 of the report is of particular assistance:

“135 The upshot of this review is that courts have allowed the calling of evidence of the kind that Interflora wishes to call and have considered it, either in conjunction with or in the absence of a statistically valid and reliable survey. But it is generally of little or no value. Sometimes it does no more than confirm the conclusion that the judge would have reached without the evidence. In passing off cases it sometimes has greater effect, but as I have said more than once, passing off raises a different legal question. Unless the court can be confident that the evidence of the selected witnesses can stand proxy for the persons or construct through whose perception the legal question is to be answered it simply represents the evidence of those individuals. In a case in which the witnesses are called in order to amplify the results of a statistically reliable survey their evidence may be probative. But unless the court can extrapolate from their evidence, it is not probative.

136 Mr Silverleaf argued that if we acceded to Mr Hobbs' submissions then evidence from consumers would never be admitted in a case of trade mark infringement in the absence of a statistically valid and reliable survey. I do not think that follows. One of the objections to the witness collection exercise, as Rimer J pointed out in UK Channel Management is that the evidence thus collected is not the spontaneous reaction of members of the public who have been exposed to the allegedly infringing sign or advertisement, but is evidence obtained under artificial conditions by applying artificial stimuli. If there is evidence of consumers who have been confused in the real world, there can be no objection to calling it. He also submitted that the calling of evidence from witnesses identified by means of a witness collection exercise was quite independent of the process by which they had been identified. That may be so in some cases; but in the general run of cases where witnesses have been identified by a tailored series of questions, they will have been led towards a particular mindset which no longer represents the unstimulated evidence of people in the real world.

137 That is not to say that there can never be evidence called in a case of trade mark infringement. The court may need to be informed of shopping habits; of the market in which certain goods or services are supplied; the means by which goods or services are marketed and so on. In addition I must make it clear, however, that different considerations may come into play where:

i)

Evidence is called consisting of the spontaneous reactions of members of the relevant public to the allegedly infringing sign or advertisement;

ii)

Evidence from consumers is called in order to amplify the results of a reliable survey;

iii)

The goods or services in question are not goods or services supplied to ordinary consumers and are unlikely to be within the judge's experience;

iv)

The issue is whether a registered mark has acquired distinctiveness; or

v)

Where the cause of action is in passing off, which requires a different legal question to be answered.

138 Outside these kinds of cases there may be others where a judge might think that it would be useful to hear from consumers. I would not wish to rule out the possibility. So I would not accept the proposition that evidence from respondents to a questionnaire can never be called in the absence of a statistically valid and reliable survey. But (apart from those I have mentioned) the cases in which that kind of evidence might be of real use are difficult to imagine. I would not therefore hold that such evidence is inadmissible as a matter of law.

139 However, it does not follow that if evidence is technically admissible, the court in civil proceedings must admit it. CPR 32.1 provides:

‘(1) The court may control the evidence by giving directions as to –

(a)

the issues on which it requires evidence;

(b)

the nature of the evidence which it requires to decide those issues; and

(c)

the way in which the evidence is to be placed before the court.

(2)

The court may use its power under this rule to exclude evidence that would otherwise be admissible.’

140 CPR Part 1.4 provides:

‘(1) The court must further the overriding objective by actively managing cases.’

141 This is a positive duty placed on the court. CPR Part 1.4 (2) goes on to say that active management of cases includes:

‘(h) considering whether the likely benefits of taking a particular step justify the cost of taking it’”.

I preferred the submissions for the Defendants. The Court of Appeal in Ajinomoto did not mention the possibility of evidence on meaning, and did not criticise the application of the Jeynes principles to arrive at a range of reasonable meanings. Sedley LJ did not include in the passages he cited from Slim the passages at p172G-173A relied on by Mr Browne. The selection he made was a considered, not an accidental, one.

The Court of Appeal was explicit as to the limited effects their judgment would have on case management: Sedley LJ para 34. Rimer LJ in particular cannot have overlooked the trade mark and passing off cases in reaching the decision he did. If he had expected his decision to lead to the calling of documentary evidence, and even oral evidence, on meaning, it is to be expected that he would have said so.

Further, as stated in Jeynes, the reader must be assumed to have read the article as a whole, and any “bane and antidote” taken together. That principle was re-affirmed in Charleston. It seems to me that that is as unrealistic an assumption as any that is required to be made, whether in defamation or in malicious falsehood (applying a multiple meaning rule), albeit that that assumption is necessary to do justice to a defendant. But as the facts of Charleston illustrate, whether a person has read the whole of the article complained of, or not, may be critical as to the meaning the reader understands the words complained of to bear. In that case the defendant newspaper had published an article with a headline and illustrated by photographs. The plaintiff complained of the meaning which they said was conveyed to a publishee who read the headline and looked at the picture, but did not read the article.

Before the court can place weight on the evidence sought to be relied on by the Claimant in this case, the court would have to find that the persons concerned had indeed read the whole of the words complained of in their context, and that they each fell within the description of the reasonable person laid down in Jeynes. On the facts of this particular case, where the Articles are so long and detailed, I find it unlikely that all readers would have read all that I have read in order to arrive at the natural and ordinary meaning, and which I would have to read to determine the range of possible meanings. Speaking for myself, I have to say that (when not acting as a judge) I frequently read newspaper articles only in part, in the manner suggested by the claimant in Charleston. There must be many cases in which I read the bane but never reached the antidote.

I accept Mr Browne’s submission that, without evidence from readers (as envisaged in Slim at p 172G-3A) the outcome which Ms Rogers submits was reached by the Court of Appeal in Ajinomoto is not an adoption of what Diplock LJ said would be “the best evidence”. If the Court of Appeal did not permit the “best evidence” to be called, then they did not go as far as Diplock LJ suggested, or as the Claimant might wish, in order to achieve the justice which the Court of Appeal sought. Without “the best evidence” there remains a risk of injustice of the kind that court describes.

Where the court has ruled out as unreasonable a meaning in a malicious falsehood claim, a claimant may in fact have evidence from just one reader, but a very important reader, who did understand the discarded meaning. And it may be a reader who, if given the opportunity, could prove himself or herself to be reasonable. Where, as in Tesla Motors v BBC [2013] EWCA Civ 152, the goods allegedly slandered are cars costing nearly £100,000 each, the loss of even one customer may be important.

These are points which, in my judgment, the Court of Appeal cannot have overlooked. I should not speculate as to why the Court did not follow Diplock LJ’s suggestion that the readers’ evidence be admitted. Rimer LJ expressly stated at para [43] that “The common law has … never worried about tidiness”. The fact that the Court of Appeal was prepared to advance some way away from what Diplock LJ said was “the artificial and archaic” cannot mean that they were prepared to go all the way he suggested that the law should go, if it was to be both realistic and logical. And to do that would be inconsistent with the judgment of Lewison LJ in Interflora.

The finding of a court, one way or the other, as to whether a reasonable person might (or would not) put a particular meaning upon the words complained of (when arrived at without evidence) could prove to be erroneous if tested empirically. The smaller the readership the easier it would be to conduct the empirical test. And, in some cases, the smaller the readership the greater the risk that the court’s determination of what a reasonable reader might understand might prove to be both verifiable and wrong. In Euromoney the alleged publishee of one of the alleged falsehoods is a single person. And the readers of the other alleged falsehoods could (I speculate) prove to be a number small enough to make it practical and proportionate to ask each one of them for a witness statement. But at a hearing on meaning the court is not normally required also to determine the number of readers. If it were, it would not be able to order as often as it now does that meaning be tried as a preliminary issue, with all the case management advantages such orders bring with them. There would be likely to be too much overlap between issues of meaning and issues of damage.

The parties can, of course, conduct their own research on what readers claim to have understood a publication to mean (whether on the internet or by surveys). And if they come upon a meaning which they consider reasonable, but which they had not themselves already thought of, they can plead it in their particulars of claim. The court will then determine whether that meaning is within the range of reasonable meanings, applying the Jeynes test. The court would, in my view, rarely be assisted by reading transcripts and other material of the kind sought to be relied on in this case. If the court does read them, the court still has to go on to determine whether any meaning supported by readers’ evidence is within the range of reasonable meanings. The cost of the review of the transcripts and other evidence is likely, in most cases, to be out of all proportion to any benefit.

One of the greatest concerns today is the cost of all litigation in general, and the cost of libel actions in particular. One of the measures which the court has adopted to try to limit the costs is to order the trial of preliminary issues on meaning. These will be more frequent after the Defamation Act 2013 has brought into force the amendment to s.69(1) of the Senior Courts Act, to abolish the right to trial with a jury in a libel action. If the effect of Ajinomoto is to encourage claimants to join in their claim for defamation a second claim for malicious falsehood in order to escape the effect of the single meaning rule, and if readers’ evidence is then admissible, then in practice it is less likely that the trial of a preliminary issue will be ordered.

There is a difference between the views on the single meaning rule expressed by the Court of Appeal in Ajinomoto and what appears to be the view of Parliament. If the single meaning rule in libel is as bad as Sedley LJ said it is (“anomalous, frequently otiose and, where not otiose, unjust … without any enduring rationale”), and as Mr Browne submitted to me that it is, then it might have been expected that Parliament, in considering the Defamation Bill, would have repealed the rule in what has just become the Defamation Act 2013. But notwithstanding Ajinomoto, Parliament has not done this. So far as I, and counsel, are aware there was not included in the Bill, or in any amendment, a provision that the single meaning rule be overturned by the statute. After the most comprehensive review of the law of defamation in a generation, which has resulted in that Act, it is regrettable that the law of defamation should remain open to criticism as having a serious defect which Parliament has chosen not to remedy.

I would not therefore hold that readers’ evidence of what they understood words to mean is inadmissible as a matter of law in a malicious falsehood action. There may cases where it should be admitted, for example the cases where the evidence is of “the spontaneous reactions of members of the relevant public” (Interflora para 137(i) cited above). Garbett may perhaps be an instance of this. Mr Browne observes that Mr Diplock was counsel for the defendant appellant in that case, and that it is the only libel case reported in a law report in which evidence appears to have been given at trial as to meaning: see p359H. I do not need to, and do not, decide one way or the other that such evidence is inadmissible as a matter of law.

What I do decide is that the Claimant’s evidence on meaning should not be admitted in this case. I reach that conclusion on the ground that, if I did not find that the meanings in para 6 of the Particulars of Claim were the natural and ordinary meaning under the single meaning rule, the evidence would not materially assist me to decide whether the meaning was within the range of reasonable meanings.

In this case the Articles are long and detailed, the issues are political, and the readers whose views are relied on include a number of supporters of the Labour party (including Mr Adams) and two former members of the Cabinet in the last Labour government (one of them not just a lawyer, but a former Lord Chancellor). There is at least a perception of possible bias: their partisan view of a political opponent might mislead such persons to see wrongdoing in the Conservative Party, and might mislead them to understand the Articles to bear a meaning that would not be understood by an ordinary member of the reading public.

As to the other readers whose evidence is sought to be relied on, there might be a danger that journalists looking for a story might misunderstand there to be a scandal alleged which was worse than the scandal (if any) that would be understood by an ordinary member of the public. And I have seen no evidence as to whether each of the readers whose evidence is referred to by the Claimant read all the passages of the Articles, including those passages which Mr Kelsey-Fry relies on as being exculpatory. If they did not, then they were applying a test different from the test which the law prescribes as the relevant test. So their understanding would be irrelevant, unless the law is to abandon not only the single meaning rule, but also the rule that the reader is assumed to have read the whole of the words complained of.

A further and important ground for my decision is this. When a course of action becomes permissible under the law, it may also become a matter of obligation, as a matter of practice rather than as a matter of law.

Mr Cruddas may be in the fortunate position of being able financially to instruct his lawyers to do whatever they advise is permissible and which may advance his case. If those lawyers may adduce in court all the evidence from readers that they have collected, then they may consider it their professional duty to advise their client that the exercise in collecting and distilling such evidence should be carried out. I have not been told the cost of searching for all the evidence of third party readers, of listening to the audio recordings of interviews, and then of transcribing them and putting them into the court bundles. But that exercise in selection must itself have required many hours of highly skilled preparatory work. I say nothing of the time taken to argue the point once it had been skilfully condensed into the very clear Skeleton Argument prepared for this hearing (from which I have cited at length above).

If this exercise can be done by claimants, it can also be done by defendants (albeit that, if it has been done by the Defendants in this case, I have not been told). Defendants might do it with a view to persuading the court that a suggested meaning has been understood by so few readers that that fact should lead to the inference that those few readers are unreasonable or untypical.

This is all most unlikely to be compliant with the overriding objective.

I note that a further judgment in Inteflora [2013] EWHC 1291 (Ch) was handed down by Arnold J on 21 May. That was the first day on which this case was argued before me. Having reached my decision that (if the question arose, which it does not) I would not admit on the issue of meaning in malicious falsehood the evidence from persons who claim to be readers, which the Claimant seeks to rely on, I did not consider it necessary to invite submissions on this new judgment. Following the circulation of this judgment in draft, the parties did not ask to make submissions on Arnold J’s judgment.I believe that my decision is consistent with the law as stated by Arnold J in his recent Interflora judgment.

If I had not reached the decision which I have reached on the meaning in defamation, I would not admit the evidence the Claimant seeks to rely on in support of my finding that meaning as one of a range of permissible meanings for the purposes of malicious falsehood.

Having considered the submissions of counsel set out above in relation to meaning for the purposes of libel, but at this stage applying the multiple meaning rule, I find that, subject to one point, the meanings pleaded by the Claimant in para 6 of the Amended Particulars of Claim, and the meanings pleaded by the Defendants in paras 7 and 8 of the Amended Defence, are all meanings within the range of meanings which reasonable readers could understand the words complained of to bear. Given the large circulation of The Sunday Times, the words complained of probably were so understood by a substantial number of readers. At this hearing I have not been asked to find how many such readers there were.

There is one point in which I do not find that. In my judgment, for reasons discussed at para 40 above, the words complained of are not capable of meaning that the suggestion attributed to the Claimant that the undercover reporters’ clients’ funds be funnelled through the reporters is no more than a suggested breach of the spirit of the legislation. The allegation can only reasonably be understood to mean that the Claimant was suggesting a breach of electoral law, not just a breach of its spirit.

Para 8 of the Defence is set out at para 11 above. The Facts and matters relied on in support of that plea are:

“8.1

The Defendants rely upon what the Claimant said during the meeting on 15 March 2012, which is contained in the recording and transcript of the meeting with the Claimant. They repeat paragraphs 7.1 -7.51 above [that is whole of the particulars of justification to the meanings pleaded in paras 7(1) and 7(2) of the Defence which are set out at para 10 above].

8.2

The Defendants’ case is that the Articles do not allege that the Claimant made such offer ‘corruptly’. If (which is denied) any ordinary and reasonable reader understood the Articles to include such an imputation, the same could only have been derived as a result of their concluding that what the Claimant had said in the course of the meeting (as reported in the Articles) amounted to corruption. That being so, since the Articles are a true report of the meeting and accurately quote what the Claimant said, it follows that if any such reader understood the words in that sense (which the Defendants deny), that same reader would necessarily conclude that the Defendants have proved the truth of the Articles in that sense.

8.3

For the avoidance of doubt, although the Claimant has not explained what he means by ‘corruptly’ in his meaning, it is denied (if it be alleged by him) that the words bore or could reasonably be understood as bearing any allegation of guilt of any criminal offence”.

On 17 May 2013 the Claimant issued a notice applying for paragraphs 8 to 8.3 to be struck out pursuant to CPR r.3.4(2)(a) because the facts relied on do not justify the meaning pleaded.

The Claimant had already set out the grounds in the Reply at para 6:

“6.1

Paragraphs 7.1 to 7.51 (being Particulars of Justification advanced to support a wholly different and lesser meaning) cannot support and are irrelevant o the meaning sought to be justified.

6.2

Paragraph 8.2 is denied. The readers of the Articles (and visitors to the Website) did not have access to what the Claimant had said during the meeting. They had only the distorted account of what had taken place in the Articles and the Extracts. The Defendants are obliged to specify the basis on which they will contend that the Claimant corruptly offered for sale the opportunity to influence government policy and gain unfair advantage through secret meetings with the Prime Minister and other senior ministers. They have not done so. Paragraph 8.2 is tantamount merely to setting out the words complained of and averring that they are true in the meanings sought to be defended. That is impermissible.

6.3

In relation to Paragraph 6.3, corrupt is an ordinary word; it was the adjective chosen in the Editorial to describe the relationship between the party and the putative donors. The word connotes bribery; the payment of money, secretly, to obtain something that could not be obtained openly or lawfully. What is more, corruption would be known, to most if not all readers, to be a criminal offence”.

I have set out above (paras 37 to 49) my conclusions on the meaning of the words complained of, and why I reject the Defendants denial that the words bore, or could reasonably be understood as bearing, any allegation of guilt of any criminal offence. That is all that needs to be said in relation to para 8.3 of the Defence.

As to para 8.1, as I understand the Defendants’ case, the facts relied on to support the meanings pleaded in para 7 are not said by themselves to support the more serious meaning pleaded in para 8. The case in relation to para 8 depends on the plea in para 8.2.

In a witness statement made on 15 May 2013 Mr John Witherow who was the Editor of the Sunday Times when the Articles were published, wrote:

“In my view, blatantly selling access was not corrupt, but unethical. I did not take the view, and still do not, that the articles suggested that Mr Cruddas had acted illegally”.

Mr Browne submits in the light of that passage that by para 8 of the Amended Defence the Defendants are trying to achieve what the Editor has said is not the Defendants’ case.

The difficulty with the Defendants’ case in para 8.2 of the Amended Defence is that the Articles (and the Extracts) do not consist solely of extracts from what the Claimant said to the reporters, and they do not set out the whole of what he said to the reporters. In arriving at my conclusion on meaning I have referred to words in the Articles which are not quotations from what the Claimant said, but are the Defendants’ description and interpretation of what he said.

It would be essential for the Defendants’ argument that they should establish that ‘the Articles are a true report of the meeting and accurately quote what the Claimant said’. But they cannot do that. All they can do is state that, in so far as they Articles contain quotations from what the Claimant said, then those quotations are true and accurate. But since the Articles contain both more than what the Claimant said, and less than the totality of what he said, the argument in para 8.2 of the Amended Defence is logically defective.

In my judgment the arguments of the Claimant are to be preferred, and for these reasons I would strike out para 8 of the Amended Defence.

For these reasons I decide that: