Stocker v Stocker

“He tried to strangle me.” What would those words convey to the “ordinary reasonable reader” of a Facebook post?

The respondent to this appeal, Ronald Stocker, is the former husband of the appellant, Nicola Stocker. Their marriage ended in acrimony in 2012. Mr Stocker subsequently formed a relationship with Ms Deborah Bligh. On 23 December 2012 an exchange took place between Mrs Stocker and Ms Bligh on the Facebook website. In the course of that exchange, Mrs Stocker informed Ms Bligh that her former husband (now Ms Bligh’s partner) had tried to strangle her. It is now clear that the date on which this is alleged to have occurred is 23 March 2003.

Mrs Stocker also said that her husband had been removed from the house following a number of threats that he had made; that there were some “gun issues”; and that the police felt that he had broken the terms of a non-molestation order. These statements and the allegation that Mr Stocker had tried to strangle her were the basis on which he took proceedings against her for defamation.

The allegations about threats, gun issues and the breach of a non-molestation order are relevant to provide context to the statement that Mr Stocker had tried to strangle Mrs Stocker. They paint a picture of acute marital conflict and on that account set the scene for any reader of the Facebook post. That reader would know that Mrs Stocker’s statement that her former husband had tried to strangle her was made against the background that this had been, towards the end of its life, a most disharmonious marriage.

Mr Stocker issued proceedings against his former wife, claiming that the statement that he had tried to strangle her was defamatory of him. He claimed that the meaning to be given to the words “tried to strangle me” was that he had tried to kill her. Mrs Stocker denied that the words bore that meaning. She claimed that, in the context of domestic violence, the words do not impute an intention to kill. What they would be understood to mean, she said, was that her husband had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed.

Mr Stocker also claimed that the statement that he had uttered threats and breached a non-molestation order was defamatory and was to be taken as implying that he was a dangerous and thoroughly disreputable man. Mrs Stocker refuted this. She said that it was not reasonable to infer that she had suggested that her husband was dangerous on account of his having been arrested a number of times. It is to be observed, however, that in the defence filed on her behalf, Mrs Stocker averred that the statement that her husband was dangerous and disreputable was justified. It seems likely that this was by way of alternative plea. In any event, for reasons that will later appear, this is immaterial because of the rule concerning the substantial truth of the statements made by the alleged defamer.

At the start of the defamation proceedings, Mitting J, the trial judge, suggested that the parties should refer to the Oxford English Dictionary’s definition of the verb, “strangle”. This provided two possible meanings: (a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully. The judge was asked by counsel for the appellant, Mr Price QC, to consider how the words, “tried to strangle” had been used in different contexts. Mr Price also sought to introduce legal definitions of the word “strangle”. These do not appear to have been taken into account by Mitting J and he did not refer to them in his judgment.

Mr Stocker gave evidence that, on the occasion when the altercation which led to his wife accusing him of trying to strangle her took place, he had been standing on a stool or a chair while she was adjusting the length of a pair of his trousers. She had pricked him with a pin. He had sworn at her. She swore back at him and he placed his hand over her mouth to prevent her raised voice from waking their sleeping son. The judge rejected this account, saying, at para 43:

This finding implicitly rejects Mrs Stocker’s account of the incident also. She had said that her husband had dismounted from the chair, had pushed her against a small sofa, put his hands around her neck and squeezed, causing her to believe that he would kill her. The judge accepted that some two hours after the incident, red marks on Mrs Stocker’s neck had been seen by police officers but he came up with a theory as to how those had come about which neither party had proposed.

It is of course open to a trial judge, after considering all the evidence, to reach his or her own conclusions or to draw inferences which neither party has advanced or espoused. But there must be a sound basis for doing so. In this case, the judge accepted the police evidence that there were red marks on Mrs Stocker’s neck. Mr Stocker had agreed during a police interview that it was possible that he had put his hand around his wife’s neck and, implicitly, that this had caused the red marks that were found there. He had also said that he had dismounted from the chair or stool on which he had been standing; had followed Mrs Stocker over to a chair and that it was possible that he had put his hand around her neck. Unsurprisingly, he was content to go along with a suggestion put to him by a police officer that he had not “maliciously grabbed her around the throat or tried to assault her”.

At no point did Mr Stocker claim that he had grasped his wife by the throat in order to secure his hand covering her mouth or to prevent her from wrenching free from his grasp. Nor did he suggest that he could not have prevented her from shouting simply by placing his hand over her mouth. It is to be noted that he had admitted to police that he had alighted from the stool or chair. If that statement was accurate and truthful, he was therefore on the same level as his wife. Yet, the judge rejected Mr Stocker’s evidence that he had simply put his hand over his wife’s mouth. Mitting J considered that a further hand (on the neck) was needed to secure the grip on Mrs Stocker’s mouth. This conclusion seems to have been premised on Mr Stocker remaining on the chair. (And, in fairness to the judge, it seems that Mr Stocker so claimed in evidence.)

If other considerations had not supervened, there might well have been an issue as to whether it was open to the judge to reach the conclusion which he did, particularly because that conclusion is more benevolent to Mr Stocker than any version of the facts which he could reasonably have advanced. It seeks to explain the red marks on a basis which Mr Stocker has never argued for. In the event, however, it is unnecessary to deal with that matter because of the conclusions that I have reached on other issues and, since it had not been argued that the judge’s finding on this point was one which he should not have made, I say nothing more about it.

The judge began his discussion about the meaning to be given to the statements said to be defamatory by referring to the well-known case of Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and cited the eight propositions made in that case by Sir Anthony Clarke MR in para 14. The judge also quoted the supplementary qualification to those propositions provided by Sharp LJ in Rufus v Elliott [2015] EWCA Civ 121, para 11. (Both authorities will be considered below.)

Having considered these judicial pronouncements, Mitting J said that he did not understand that either authority indicated that, in order “to confirm the meaning in ordinary usage of a single English word”, it was impermissible to refer to “an authoritative English dictionary such as the Oxford English Dictionary.” He then referred to the two dictionary definitions which I have set out at para 7 above and continued at para 36:

It is clear from this passage of his judgment that the trial judge had confined the possible meaning of the statement, “he tried to strangle me” to two stark alternatives. Either Mr Stocker had tried to kill his wife, or he had constricted her neck or throat painfully. In the judge’s estimation, the fact that Mrs Stocker had said that her husband “tried” to strangle her precluded the possibility of her statement being taken to mean that he had constricted her neck painfully.

This approach produces an obviously anomalous result. If Mrs Stocker had said, “he strangled me”, she should be understood to have meant that her husband had constricted her neck or throat painfully, on account of her having survived to tell the tale. But, because she said that he had “tried” to strangle her (in the normal order of things and in common experience a less serious accusation), she was fixed with the momentous allegation that her husband had tried to kill her. On this analysis, the use of the verb, “to try” assumes a critical significance. The possible meaning of constricting the neck painfully was shut out by what might be regarded as the adventitious circumstance that Mrs Stocker had said that her husband had “tried” to strangle her rather than that he had strangled her.

This anomalous result was the product of confining the meaning of the words exclusively to two dictionary definitions. If “tried to strangle” did not fit with the notion of trying to constrict the neck or throat painfully (because of the prosaic fact that Mrs Stocker was still alive), the only possible meaning was that Mr Stocker had tried to kill.

On the remainder of the claimed defamatory meaning the judge’s reasoning was closely allied to that on the first part. In the passage of his judgment which immediately succeeded that quoted at para 14 above, he said at para 36:

The judge then dealt with an argument made on behalf of Mrs Stocker that all that she had done was to state that Mr Stocker had been arrested on more than one occasion and that this was not itself a defamatory statement. Of these claims, the judge said this at para 37:

The meaning attributed by the judge to the statement that the claimant had been arrested, in the context of the other statements, therefore was that Mr Stocker was a man who was dangerous to any woman with whom he had lived or might live.

Mrs Stocker had pleaded that her statements were substantially true and that she was therefore entitled to rely on the defence of justification. The judge dealt with that plea in para 54 of his judgment:

At para 17 of her judgment, Sharp LJ in the Court of Appeal said this about the use of dictionaries as a means of deciding the meaning to be given to a statement alleged to be defamatory:

The suggestion that the judge told counsel “in the course of submissions” that he had looked at the dictionary definition may mislead. On the first day of the trial, before any evidence had been given, counsel for Mr Stocker, Mr Barca QC, had suggested to Mitting J that no time would be saved by asking him to deliver a preliminary ruling on meaning. The judge replied that he had “a preliminary opinion about it” which he was willing to disclose. Shortly thereafter, he suggested that counsel should look at the Oxford English Dictionary definitions and said, “You might from that gain the primary and secondary definition and fit it (sic) into the context of a message that he ‘tried’ to do something”. All of this occurred before the judge heard any argument about meanings. This suggests that, contrary to Sharp LJ’s view, the judge was not using the dictionary definitions as a cross-check. Plainly, he regarded those definitions as comprehensive of the possible meanings of the statement, “he tried to strangle me”.

Sharp LJ’s statement that Mitting J merely used the dictionary definitions as a check may have been based on his comment in para 36 of his judgment that the authorities do not “prohibit reference to an authoritative English dictionary such as the Oxford English Dictionary to confirm the meaning in ordinary usage of a single English word”. I do not construe this statement as signifying that the judge was using the dictionary definitions as a cross-check and, indeed, neither in his judgment nor in his exchanges with counsel, does he ever use the expression, “check”. Given that Mitting J had consulted the dictionary before the trial began and commended consideration of it to counsel, it seems to me plain that, far from using the definitions as a check, what the judge did was to regard the two definitions as the only possible meanings which he could consider or, at the very least, the starting point for his analysis, rather than a cross-check or confirmation of the correct approach.

Therein lies the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement. That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made.

Moreover, once the verb, “strangle” is removed from its context and given only two possible meanings before it is reconnected to the word, “tried” the chances of a strained meaning are increased. The words must be taken together so as to determine what the ordinary reasonable reader would understand them to mean. Mitting J examined the word “strangle” in conspicuous detail before considering it in conjunction with the word, “tried”. Having determined that “strangle” admitted of only two possible meanings, he then decided that “tried” could be applied to only one of these. Underpinning his reasoning is the unarticulated premise that “to try” is necessarily “to try and fail”. Since Mr Stocker had not failed to constrict his wife’s throat, the judge concluded that the only feasible meaning of the words was that he had tried (and failed) to kill her. But that is not how the words are used in common language. If I say, “I tried to regain my breath”, I would not be understood to have tried but failed to recover respiratory function.

On the meaning found by the judge at para 37 of his judgment (that Mr Stocker was dangerous to any woman with whom he lived), Sharp LJ at para 21 of her judgment said:

Plainly, the Court of Appeal considered (as did, indeed, the judge) that that meaning was dependent, to some extent at least, on the correctness of Mitting J’s conclusion as to the meaning to be given to the words, “tried to strangle me”. The passage quoted was in reaction to Mr Price’s argument that the judge was wrong to have fastened on that meaning when it had not been advanced by Mr Stocker. Sharp LJ had observed of this argument that the judge was not bound to accept either party’s contention on meaning; his task was “to identify the single meaning of the words complained of within the relevant area of contention”. For reasons that will appear, it is important to note the two aspects of Sharp LJ’s reasoning: first that the judge was entitled to fix on a meaning which had not been advanced by either party; and, secondly, that his choice of meaning was influenced by his findings in relation to the first defamatory meaning - that Mrs Stocker’s words “he tried to strangle me” were to be taken as meaning that her husband had tried to kill her.

Sharp LJ then turned to the question of justification. She referred to an argument advanced on behalf of Mrs Stocker that the judge had failed to advert to section 5 of the Defamation Act 1952 (which has now been replaced by section 2(3) of the Defamation Act 2013):

At para 25, Sharp LJ said:

Again, it is to be noted that the finding of Mitting J about the meaning to be given to the words, “he tried to strangle me” was pivotal to the conclusion that section 5 could not be prayed in aid by Mrs Stocker. It is clear that, if it had been held that Mitting J was wrong to fix on the meaning of those words that he did, a markedly different view as to the applicability of section 5 would have been warranted.

Section 11 of the Defamation Act 2013 abolished the statutory right to trial by jury (in section 69(1) of the Senior Courts Act 1981). Under the previous dispensation, the judge would determine which meanings the allegedly defamatory words were capable of bearing and exclude those which she or he considered they were not capable of bearing. The judge would then put to the jury the various possible meanings and, with appropriate directions, invite the jury to decide which of those adumbrated meanings was the one to be attributed to the words said to be defamatory.

The almost complete abolition of jury trial meant that the task of choosing a single meaning fell to the judge alone. The exercise of choosing a single immutable meaning from a series of words which are capable of bearing more than one has been described as artificial - see, in particular, Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 172C. But the single meaning rule has had its robust defenders. In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd [2013] EMLR 7, Lord Neuberger of Abbotsbury, sitting as a judge of the Hong Kong Court of Final Appeal, said at para 138 that the criticism of the rule’s artificiality and (implicitly) its irrationality was misplaced. He suggested that the identification of a single meaning to be accorded a statement arose “in many areas of law, most notably … the interpretation of statutes, contracts and notices” - para 140.

Whether the analogy between a single defamatory meaning and a sole meaning to be given to a contractual term, statutory provision or notice is apt (which I take leave to doubt), it is clear that the single meaning approach is well entrenched in the law of defamation and neither party in the present appeal sought to impeach it. And, whatever else may be said of it, it provides a practical, workable solution. Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding that one particular meaning should be ascribed to the statement.

It is then for the judge to decide which meaning to plump for. Guidance as to how she or he should set about that mission was provided in Jeynes (mentioned in para 13 above). At para 14, Sir Anthony Clarke MR set out the essential criteria:

Sharp LJ added a rider to the second of these criteria in Rufus v Elliott when she said at para 11:

Clearly, therefore, where a range of meanings is available and where it is possible to light on one meaning which is not defamatory among a series of meanings which are, the court is not obliged to select the non-defamatory meaning. The touchstone remains what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning.

All of this, of course, emphasises that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words. And this highlights the court’s duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post. To fulfil that obligation, the court should be particularly conscious of the context in which the statement was made, and it is to that subject that I now turn.

The starting point is the sixth proposition in Jeynes - that the hypothetical reader should be considered to be a person who would read the publication - and, I would add, react to it in a way that reflected the circumstances in which it was made. It has been suggested that the judgment in Jeynes failed to acknowledge the importance of context - see Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529; [2018] 4 WLR 13 where at para 13 Simon LJ said that the propositions which were made in that case omitted “an important principle [namely] … the context and circumstances of the publication …”.

It may be that the significance of context could have been made more explicitly clear in Jeynes, but it is beyond question that this is a factor of considerable importance. And that the way in which the words are presented is relevant to the interpretation of their meaning - Waterson v Lloyd [2013] EWCA Civ 136; [2013] EMLR 17, para 39.

The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.

In Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter:

I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.

That essential message was repeated in Monir v Wood [2018] EWHC (QB) 3525 where at para 90, Nicklin J said, “Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly.” Facebook is similar. People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting. Some observations made by Nicklin J are telling. Again, at para 90 he said:

And Nicklin J made an equally important point at para 92 where he said (about arguments made by the defendant as to meaning), “… these points only emerge as a result of close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by his/her side making points like this.”

A similar approach to that of Nicklin J had been taken by Eady J in dealing with online bulletin boards in Smith v ADVFN plc [2008] EWHC 1797 (QB) where he said (at paras 13 to 16):

It will be clear from what I have said already that, in my view, Mitting J fell into legal error by relying upon the dictionary definition of the verb “to strangle” as dictating the meaning of Mrs Stocker’s Facebook post, rather than as (as Sharp LJ suggested) a check. In consequence, he failed to conduct a realistic exploration of how the ordinary reader of the post would have understood it. Readers of Facebook posts do not subject them to close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the post. Anyone reading this post would not break it down in the way that Mitting J did by saying, well, strangle means either killing someone by choking them to death or grasping them by the throat and since Mrs Stocker is not dead, she must have meant that her husband tried to kill her - no other meaning is conceivable.

In view of the judge’s error of law, his decision as to the meaning of the Facebook post cannot stand, and this court must either determine the meaning for itself, or if that is not possible, remit the case for a rehearing. It is entirely appropriate in this case for us to take the former course, determining the meaning ourselves.

I return to the ordinary reader of the Facebook post. Such a reader does not splice the post into separate clauses, much less isolate individual words and contemplate their possible significance. Knowing that the author was alive, he or she would unquestionably have interpreted the post as meaning that Mr Stocker had grasped his wife by the throat and applied force to her neck rather than that he had tried deliberately to kill her.

Ironically, perhaps, this conclusion is reinforced by the consideration that only one meaning is to be attributed to the statement. Taking a broad, overarching view, and keeping in mind that only one meaning could be chosen, the choice to be made between the meaning of the words being that Mr Stocker grasped his wife by the neck or that he tried to kill her is, in my opinion, a clear one. If Mrs Stocker had meant to convey that her husband had attempted to kill her, why would she not say so explicitly? And, given that she made no such allegation, what would the ordinary reasonable reader, the casual viewer of this Facebook post, think that it meant? In my view, giving due consideration to the context in which the message was posted, the interpretation that Mr Stocker had grasped his wife by the neck is the obvious, indeed the inescapable, choice of meaning.

I emphasise again that it is a legal error on the part of the judge that has opened the door to a redetermination of the meaning of Mrs Stocker’s words. This is not a case of the appellate court giving precedence to its view of meaning over that legitimately reached by the judge. To the contrary, it is the court’s recognition that the meaning determined by the judge was reached via a route which was impermissible and having then to confront the question what meaning should properly be attributed to the relevant words. It is nevertheless appropriate to say something generally about the role of the appellate court in appeals concerning the meaning of avowedly defamatory words chosen by a trial judge.

The question of when it was appropriate for an appellate court to substitute its view for that of a trial judge on the meaning of a claimed defamatory statement was addressed at some length in Bukovsky. At para 30 Simon LJ set out the competing contentions of counsel as to how this issue should be approached:

At para 31, Simon LJ observed that proposition B had been supported by a number of judgments of the Court of Appeal, including that of Sir Thomas Bingham MR in Skuse v Granada Television Ltd [1996] MLR 278, 287, where he said:

As Simon LJ noted, however, when the Court of Appeal came to state its conclusion in Skuse, it merely said that it was “satisfied” that the natural and ordinary meaning which the judge gave to the material complained of was wrong. The “satisfied/quite satisfied” dichotomy featured again in Cruddas v Calvert [2013] EWCA Civ 748; [2014] EMLR 5, para 18 Longmore LJ summarised the claimant’s argument thus:

He then referred to Skuse v Granada Television Ltd and to Cammish v Hughes [2012] EWCA Civ 1655; [2013] EMLR 13, where Arden LJ had said at para 31:

Longmore LJ in Cruddas acknowledged the force of the submission that the Court of Appeal should not second guess the judge and said at para 19:

He concluded by saying that if, in order to come within Sir Thomas Bingham’s eighth principle in the Skuse case, he had to, he would say that he was not merely satisfied but “quite satisfied”. For my part, the difference in this context between being satisfied and being quite satisfied, if it can be discerned at all, is so ephemeral, so elusive a concept as to be of scant utility. Ultimately, the court in Bukovsky elected to steer a middle course between what Simon LJ had described as options A and B. At para 39, Simon LJ said:

Of course, a reviewing court should be slow to disturb a finding of a trial judge as to the meaning of a claimed defamatory statement. This is mainly because it is a finding of fact, whereas the construction of a written contract is a question of law. It is well settled, outside the field of defamation, that an appellate court will not interfere with a finding of fact by a first instance judge merely because it takes a different view of the matter. The degree of restraint which the appellate court will exercise will depend upon whether the judge had the advantage of seeing and hearing the witnesses, whether the finding is an inference based upon the review of a large mass of primary factual material, and whether the finding is in the nature of an evaluation involving mixed fact and law. The following passage from the judgment of Lord Reed in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, paras 3-4 sufficiently covers the ground:

As to whether the appellate task needs to be described as one requiring caution, as Simon LJ suggested, I am doubtful. I would prefer to say that it calls for disciplined restraint. Certainly, the trial judge’s conclusion should not be lightly set aside but if an appellate court considers that the meaning that he has given to the statement was outside the range of reasonably available alternatives, it should not be deterred from so saying by the use of epithets such as “plainly” or “quite” satisfied. If it was vitiated by an error of law then the appellate court will have to choose between remitting the matter or, more usually in this context, determining the meaning afresh. But if the appellate court would just prefer a different meaning within a reasonably available range, then it should not interfere.

This discussion is academic in the present case for I am of the view that Mitting J’s use of the dictionary definitions to confine the possible meanings of the Facebook post involved an error of law and, on that account the Court of Appeal needed to approach the question of meaning afresh. Since it did not do so, that task falls to this court, with the consequence which I have described.

In light of my conclusion as to the correct meaning to be given to the words, “tried to strangle me”, section 5 of the Defamation Act 1952 must occupy centre stage. It is beyond dispute that Mr Stocker grasped his wife by the throat so tightly as to leave red marks on her neck visible to police officers two hours after the attack on her took place. It is not disputed that he breached a non-molestation order. Nor has it been asserted that he did not utter threats to Mrs Stocker. Many would consider these to be sufficient to establish that he was a dangerous and disreputable man, which is the justification which Mrs Stocker sought to establish. Mitting J considered that the meaning of the statement that the claimant was arrested on numerous occasions, in the context of the other statements, was that he represented a danger to any woman with whom he might live. I see no warrant for adding that dimension to the actual words used by Mrs Stocker in her various Facebook postings.

Even if all her allegations were considered not to have been established to the letter, there is more than enough to satisfy the provision in section 5 of the 1952 Act that her defence of justification should not fail by reason only that the truth of every charge is not proved, having regard to the truth of what has been proved.

I would allow the appeal, and subject to any submissions which the parties might wish to make, order that the costs of the appeal and the hearings before the lower courts be borne by the respondent.