Haviland v The Andrew Lownie Literary Agency Ltd & Anor

This is a claim for libel arising from seven emails that were sent by the Defendants concerning the Claimant to Reedsy, a British online author services firm. The Claimant describes himself as a well-known and highly respected editor and publisher and the First Defendant as a well-known and influential literary agency. The Second Defendant is a director and 50% shareholder of the First Defendant.

The Claimant’s case is that Reedsy “serves as a bridge uniting authors and editors and publishers” and has a “very considerable influence in connecting writers with editors and publishers and other publishing professionals”.

The emails about which the Claimant complains are set out in the Appendix to this judgment, referred to as the First to Seventh Emails. They are set out as they originally appeared, included within email chains where applicable. Any errors appear in the original text.

The Claim Form was issued on 14 April 2020. The Claim Form with Particulars of Claim was not served until mid-August 2020. In the Particulars of Claim, each Email is pleaded separately. Each meaning relied upon by the Claimant is pleaded as arising as the natural and ordinary meaning of each individual Email. No innuendo is advanced, relying for example on earlier Emails. Where the email appears as part of a chain, the Claimant has set out the text of the main message in the Particulars of Claim.

The meanings pleaded by the Claimant are as follows:

The Defendants have accepted that the natural and ordinary meaning of the First Email is the meaning pleaded by the Claimant in the Particulars of Claim.

On 20 October 2020, I directed that the following should be tried as preliminary issues:

Pursuant to a further direction given in the Order of 20 October 2020, the Defendants have filed a written statement of their case on the natural and ordinary meanings of the seven Emails:

The Defendants’ case is that apart from the Defendant’s meaning (b) advanced in respect of the Third Email, none of the emails bears a meaning that is defamatory of the Claimant at common law. The Defendants contend that the various Emails meant no more than “the Defendants took issue with the accuracy of certain statements the Claimant had posted on his Reedsy profile and was using an endorsement for which he did not have permission.”

With the consent of the parties, no hearing took place. Instead, I have considered the written submissions of the parties on the issues to be determined. In accordance with the practice outlined in Hewson -v- Times Newspapers Ltd [2019] EWHC 650 (QB) [16]-[27], copies of the parties’ written submissions will be made available with copies of this judgment.

The law I apply in relation to resolution of the first preliminary issue is well settled and is set out in Koutsogiannis -v- Random House Group Ltd [2020] 4 WLR 25 [11]-[12]. The principles identified in [12(x)] and [12(xi)] have particular relevance to this case. The meaning that any individual publishee understood a particular Email to bear, whilst likely to be highly material to any assessment of serious harm to reputation (under s.1 Defamation Act 2013), is nevertheless irrelevant to the determination of the single natural and ordinary meaning.

The modern and approved practice when the Court comes to determine the natural and ordinary meaning of the publication in a defamation claim is to read the words complained of without reference to the parties' contentions or submissions: Tinkler -v- Ferguson [2020] EWCA Civ 819 [9] per Longmore LJ. The purpose of doing so is “to capture the Judge's initial reaction as a reader”. Only after doing so have I considered the parties’ pleaded cases and arguments.

In Sheikh -v- Associated Newspapers Ltd [2019] EWHC 2947(QB) Warby J noted:

As to whether a meaning found by the Court is defamatory at common law, the principles are set out in Allen -v- Times Newspapers Ltd [2019] EWHC 1235

As copies of the written submissions will be made available when this judgment is handed down, only a short summary of the parties’ arguments is required for this judgment.

As to natural and ordinary meaning, the Claimant makes few submissions beyond the words of the Emails themselves. Mr Sterling has particularly highlighted the word “misrepresentation” as it is used in the Fifth, Sixth and Seventh Emails as demonstrating that the meaning goes beyond a simple allegation that there were inaccuracies or errors in the Claimant’s profile. Mr Stables on behalf of the Defendants contends that all of the Emails are simply requesting the correction of inaccuracies.

Both sides have made submissions as to the context in which the emails appeared. I have set out the emails in the Appendix to this judgment exactly as they would have appeared. Mr Stables submitted that the reader(s) of the relevant Emails would have read the entire chain. I am not sure that that is necessarily what recipients of emails do, particularly if they are long or are part of an ongoing conversation. I do not consider that the point requires resolution because I think whether the recipient read the entire thread of emails makes no difference to the meaning of the relevant Email in its proper context. These are not complicated documents. They would have been read and absorbed quickly; the meaning received would have been largely impressionistic.

The parties are agreed that the natural and ordinary meaning is:

“[The Claimant] has made many false and misleading statements on his webpage on Reedsy’s website, including the endorsement he claims was given by Andrew Lownie and his claim that he is the founder and running the business of the publishing company, Thistle Publishing”

The meaning that the parties have agreed has left unspecified whether the false and misleading statements were included by the Claimant deliberately. This makes a difference whether the meaning is defamatory or not. If, having read the text, the ordinary reasonable reader drew nothing more than that there were inaccuracies in the text that were innocent or at best careless, then that meaning would not cross the threshold of being defamatory. It would not be serious enough. In my judgment, the First Email does suggest to the ordinary reader that the false statements had been included deliberately by the Claimant. That message comes across largely from the accusatory tone of the email and the fact that it is described as a complaint. I am satisfied that this crosses the threshold of seriousness to be regarded as defamatory at common law; it connotes deception or an attempt to deceive.

The Second Email was sent some 7 minutes after the First Email. It clearly referred to the First Email, and to that extent the two should be read together when ascertaining meaning. In the Second Email, the Second Defendant was essentially identifying the inaccurate entries to which he had referred in the First Email. The meaning of the Second Email is:

“The Claimant’s claiming credit, on his webpage on the Reedsy website, for eight works was, as the Claimant knew, false and misleading.”

I have specified, clearly, in the meaning that the Email alleged that the statement was known to be false and misleading by the Claimant. In context, the allegation would be understood to be that the inaccuracies were not innocent or careless; they were deliberate. The natural and ordinary meaning should reflect this.

This meaning is defamatory at common law. It again connotes deception or an attempt to deceive.

The immediate context of the Third Email is that it is a reply to an email sent by Mr Nataf at 17.15 (which itself was a reply sent to the Second Defendant’s First Email). The terms of Mr Nataf’s reply perhaps suggest that he saw primary responsibility for the accuracy of information in the Claimant’s profile as lying with the Claimant and he asked whether the Second Defendant had discussed the issue with him.

Nevertheless, assessed objectively, the natural and ordinary meaning of the Third Email is, in my judgment:

“(1)

The Claimant’s webpage on the Reedsy Website contained the following statements which the Claimant knew were false and misleading and which ought to be removed:

(a)

that the Claimant had edited eight works; and

(b)

that the Second Defendant had given the Claimant an endorsement.

(2)

Whilst working for the First Defendant, the Claimant had conducted himself in such a way that led to well-founded complaints and legal action.”

The additional information that is provided in the Third Email makes it very clear to the reader that there is an ongoing dispute between the Claimant and the Second Defendant. The allegation is clearly that the Claimant has included information on his webpage on the Reedsy website which is known by him to be false and misleading. The form of the meaning I have set out complies with the repetition rule, whereas the meanings advanced by the Claimant and the Defendants did not: see discussion in Koutsogiannis [32(ii)].

This meaning is defamatory at common law. It again connotes deception or an attempt to deceive.

The immediate context of the Fourth Email is that it was a response to Mr Nataf’s suggestion that the Second Defendant ought to be taking up his complaints with the Claimant rather than him. The Second Defendant argued that it was Reedsy’s responsibility “to carry true information”. In my judgment the meaning of the Fourth Email is:

“The Claimant’s claim, on his webpage on the Reedsy website, that he was the founder and was running Thistle Publishing was, as he knew, false and misleading.”

This meaning is defamatory at common law. It again connotes deception or an attempt to deceive.

The Fifth Email, as is clear from the chain, was a response to Jessica Kim, to whom Mr Nataf had passed the Second Defendant’s inquiries regarding the website. Whether or not Ms Kim read the entire email history underneath the Fifth Email, in my judgment the natural and ordinary meaning is:

“There were grounds upon which to challenge the accuracy of the Claimant’s claim, on his webpage on the Reedsy website, that he ran the Thistle Publishing and that he had been a publisher since 2013. He was one of the two directors.”

This meaning is materially different from that of earlier Emails. The ordinary reasonable reader can see from the terms of the Fifth Email that the Second Defendant’s complaint was that Thistle Publishing was run by a company of which the Claimant was one of two directors. Seen in that context, the reader can assess for him/herself the nature of what the Second Defendant had alleged to be inaccurate. In my judgment that would clearly lead the ordinary reasonable reader to conclude that the Second Defendant’s complaint about this issue was trivial, even a matter of semantics. In my judgment, it does not cross the threshold of seriousness to be defamatory at common law.

This was a further reply to Ms Kim. In her email, Ms Kim had attempted to draw the Second Defendant’s complaints to a close. She was not successful. The Sixth Email contains what an ordinary reasonable reader would conclude were nothing more than the Second Defendant’s efforts to convince Ms Kim that the Claimant’s entry on the Reedsy website about “running” Thistle Publishing and being the publisher was still misleading. Again, I am satisfied that the ordinary reasonable reader would quickly conclude the Second Defendant’s complaints in this respect were semantic and trivial. It is unnecessary for me to ascribe a meaning to the Sixth Email as I am quite satisfied that it is not defamatory of the Claimant at common law.

The Seventh Email is of a different character. It opens up a new front of challenge to the Claimant’s profile as it appeared on the Reedsy website. Nevertheless, the meaning

I have excluded from this meaning the two paragraphs contained in the Claimant’s meaning which relate to the dispute about whether the Claimant “ran” Thistle Publishing and whether he was a publisher. The ordinary reasonable reader would, in the context of the preceding Emails, recognise this as a continuation of the trivial semantic dispute and which did not reflect adversely on the Claimant. The meaning I have set out is defamatory at common law because it again suggests deception or an attempt to deceive on the part of the Claimant.

I should make clear that where I have ruled that a meaning is defamatory that is solely applying the common law test. The issue of whether the Claimant can satisfy the requirements of s.1 Defamation Act 2013 in respect of the publication of the First to Fourth and Seventh Emails will remain to be resolved later in the proceedings. I will say nothing more on this topic.