A Judge has ruled on meaning as a preliminary issue in a libel claim without an oral hearing, in a move which will be welcomed by those who criticise the high cost of media law litigation.
The claim was brought by barrister Barbara Hewson against the publishers of The Times and MailOnline for articles published in April 2017.
The article in The Times was headlined “Barrister ‘made death threats’ to student” and the Mailonline article had the headline “Lawyer who was dubbed the ‘bolshiest barrister on Twitter’ and called for the age of consent to be lowered to 13 ‘made death threats’ to law student”.
Ms Hewson argued that the articles meant she was guilty of making death threats, which she denies.
The newspapers argued that the articles could not mean she was guilty because they did not adopt or endorse the allegations that were reported, and that they were reporting untested and ostensibly partial third-party allegations.
The Judge expressly rejected the argument that bald reports of the allegations of others necessarily bear a meaning lower than the original allegations, because they can be seen to be reports.
He referred to the so-called “repetition rule” whereby when an allegation by a third party is repeated by the defendant, the words must be interpreted by reference to the underlying allegations of fact.
He held that, if the effect of the rule on the meaning of reports of allegations made by others is to be mitigated or avoided, the material that has that effect must be found elsewhere in the publication, for example, it must contain both sides of dispute.
The Judge found no mitigating effect here, and decided that the articles meant that Ms Hewson was guilty of acts of harassment and online bullying.
The Judge’s analysis and rejection of the arguments advanced by the media defendants is a valuable restatement of the law for those considering how to minimise the risk of defamation claims in reports of serious allegations of wrongdoing.
The decision also saw the Judge reach his conclusion on the basis of written submissions by the parties alone, without an oral hearing, which he suggested might save time and costs.
He raised the potential impact of this approach on open justice and the need for hearings to be held in public, but identified a procedure whereby the judgment and submissions could be handed down in open court to overcome any problems of that kind.
The meaning of a publication is often one of the most fiercely contested areas of defamation litigation.
Since the effective abolition of trial by jury by the Defamation Act 2013, it has become typical for this issue to be resolved at a trial of meaning as a preliminary issue.
The Court’s ruling will often affect the attitude of the parties to whether or not to settle the claim.
The procedure adopted here raises the prospect of this potentially costly obligatory stage in defamation litigation becoming quicker and less expensive, which may make fighting claims a more attractive prospect for the media.