In the case of Allen v Times Newspapers Ltd [2019] EWHC 1235 (QB) Warby J found that an article concerning Mark Allen, described as a ‘Grenfell cladding boss’, bore a defamatory meaning which was different from that contended for by the parties.

Background

This libel action arose from two almost identical articles relating to the Grenfell Tower disaster which were published in hard copy and the online version of The Times in July 2017. The print version of the article was headed ‘Grenfell cladding boss is a government adviser’, whilst the online version was textually identical bar a slight (irrelevant) variation in the headline (together “the Article”). The ‘government advisor’ referred to was the claimant, Mark Allen.

In May 2018 Mr Allen’s solicitors wrote to The Times complaining of the Article, alleging that it suggested the claimant had acted corruptly. The newspaper denied that contention, advancing a positive case as to the meaning of the article, said to be a non-defamatory one, as follows:

“Mark Allen, a senior representative of Saint-Gobain UK, a company involved in the manufacturer of the Celotex insulation boards fitted to Grenfell Tower, is on the Building Regulations Advisory Committee, which advises the Secretary of State on building regulations. The insulation boards are highly flammable and suspected of contributing to the Grenfell fire. Despite the fact that the product has been withdrawn from use on high-rise buildings Mr Allen remains on the Committee. There is concern that building regulations are not fit for purpose and, in the circumstances, the appointment to [the Building Regulations Advisory Committee (“BRAC”)] of Mr Allen or other members with roles in the construction industry to this Committee may be inappropriate.”

At the end of June 2018 Mr Allen issued proceedings, though advancing a new meaning no longer alleging that the article suggested corruption on behalf of Mr Allen. Instead, the Particulars of Claim alleged that the words (paragraphs 1-7) of the Article were defamatory of the claimant in that they suggested that [1] Mr Allen being technical director at Saint-Gobain meant he was responsible for the design of the insulation that caught fire, and [2] Mr Allen also being a committee member of the BRAC represented a conflict of interest.

The Times was successful in obtaining an order for the determination of two questions as preliminary issues in the claim, which resulted in a trial which is the topic of this judgment: “(1) The meaning(s) of the words complained of at paragraphs 7 and 8 of the Particulars of Claim (that is, paragraphs 1 to 7 of the Article); and (2) Whether such meaning(s) are defamatory of the claimant at common law”.

Judgment

Warby J cited the relevant principles on meaning from paras 11 to 12 of Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB).

Counsel for the claimant, Robert Sterling, submitted that whilst there must be a single meaning, it can have more than one element. Notably, that the ordinary reasonable reader would understand the article to allege:

“(1) that there were strong, alternatively reasonable, grounds to suspect that Mr Allen was responsible for the design, specification and manufacture of the highly flammable and dangerous Celotex insulation used in the construction of the external cladding to Grenfell Tower; and

(2) that Mr Allen was acting wrongly and in conflict of interest by being a member of the Building Regulations Advisory Committee (BRAC) when he was a senior executive director of Saint-Gobain and Saint-Gobain was a contractor, chosen by Kensington Council, for installing insulation in its high-rise flats, and when he had remained as a BRAC member after the Grenfell fire.”

These are the two strands of meaning advanced by the claimant and were considered in turn.

The first strand

Mr Sterling emphasised the importance of the headline, in particular Lord Nicholls’ observation that “Those who print defamatory headlines are playing with fire” (Charleston v News Group Newspapers Limited [1995] 2 AC 65, 74). He submitted that “Grenfell cladding” is a reference to the tragedy, and the word “boss” indicates that the claimant was the boss responsible for the Grenfell cladding. Of the article itself, it was argued that Mr Allen’s role as technical director of Saint-Gobain led to an ‘inescapable inference’ that he bore direct responsibility for the Celotex insulation’s design, specification and manufacture. It was also suggested that reference in paragraph [4] of the article, to the withdrawal of the product from use on high-rise buildings, “strongly suggests an admission of personal fault in regard to the product on the part of Mr Allen.” Finally, Mr Stirling submitted that there was nothing by way of antidote to the defamatory sting complained of.

However, the judge agreed with counsel for the defendant, Jonathan Scherbel-Ball, that the above approach to the first strand of the pleaded meaning was strained, forced and unreasonable [24]. Warby J considered it a significant jump from the claimant being presented as the technical director of the company that made the suspect panels, to the conclusion that he was personally responsible for their design and suspected faults. Further, the judge denied that the withdrawal of the panels from sale necessarily meant an admission of fault on Mr Allen’s behalf. Finally, the judge considered that the claimant’s meaning did not engage the ‘bane and antidote’ principle, but rather raises the question of whether there is any, and if so what, bane.

Implication or inference?

Warby J gave a useful exposition of the difference between implications and inferences (from [26]).  The defendant submitted that a meaning ascertained by way of inferential deduction by the reader – rather than implied directly by the words – is not part of the natural and ordinary meaning. He considered this distinction significant because the claimant’s meanings were all dependent upon inferences. In contrast, Mr Sterling suggested that this was an artificial distinction, which on a proper analysis finds no support in the authorities.

Warby J found that, whilst the words ‘infer’ and ‘imply’ are often used interchangeably, there is a difference [28]. Whilst an implication is something conveyed to the reader by the words used by the writer (i.e. flowing from what is expressly stated), an inference is a conclusion drawn by the reader as a result of a process of deductive reasoning undertaken by him/her, often including extraneous facts or based on moral/political value. It is suggested therefore that for meaning determinations, the focus should be on implication, rather than inference, to ensure that the Court does not arrive at an unreasonable conclusion.

In relation to the first strand of meaning, then, the court decided that neither by inference nor implication would a reasonable reader come to the meaning put forward by the claimant (that the claimant was responsible for the manufacture of the panels that caused the Grenfell fire).

The second strand

In contrast, the judge agreed with Mr Sterling (for the claimant) that, in terms of the second strand of meaning, the Article presents to the reader as significant the fact that the claimant is both (a) a senior executive from “the company that made the insulation boards” for Grenfell Tower and (b) “an adviser to the government on building regulations” [33]. The question was: what does the Article suggest is the significance of these dual roles?

The judge did not agree fully with how the claimant’s meaning was expressed in submissions – for example, Mr Sterling claimed that the Article makes “the clearest statement” that the claimant should not be on the committee, whilst the judge considered the Article to only imply as much (though an implied meaning was not pleaded).

Yet, the defendant’s version of meaning regarding the second strand was also not accepted: it was not enough to state that the article implied that Mr Allen’s appointment to BRAC “may be inappropriate” in the circumstances.

Solution

Instead of choosing either the claimant or defendant’s version of the meaning, Warby J came to a meaning on his own formulation. The meaning was of ‘same general nature’ as the claimant’s second strand of meaning, though the judge admitted that he was ‘not sure’ whether the meaning he arrived at was more serious than the claimant’s second strand. Warby J’s ultimate meaning of the article was as follows:

“[T]he claimant misconducted himself by remaining on the BRAC when it discussed the Grenfell Tower fire the week before the Article: by doing so despite the facts that (a) he was a senior executive and technical director of the company that made the Celotex insulation boards, which (b) were fitted to the Tower, (c) had proved on investigation to be highly flammable, and thus come under reasonable suspicion of being implicated in the spread of the fire, and (d) been withdrawn from sale, he placed himself in a situation of conflict of interest.” [56]

It was clarified that when the Court is finding a meaning different from any put forward by the parties, the two limiting principles are that:

(1) the Court cannot find a meaning that is more injurious than the claimant’s pleaded meaning; and

(2) the Court should be slow to find a meaning different from that of which the claimant complains, when the claimant has repeatedly attempted to formulate a defamatory meaning but has chosen not to formulate the meaning which the Court may consider the words to bear.

Warby J agreed with Nicklin J in Hewson v Times Newspapers Ltd [2019] EWHC 1000 (QB) that courts today should not be absolutely barred from finding a meaning which is more serious than one contended for by the claimant [50], though caution should always be exercised.

There was also discussion on to what extent a claimant can change his submissions from what was initially pleaded. Mr Sterling submitted that a claimant can always change his case at trial. This was rejected by Warby J who held that last minute changes could be unfairly prejudicial to the other side. Any changes must be in accordance with the overriding objective and the efficient administration of justice. Further, if the court is to adopt a meaning that is not advanced by either the claimant or defendant, it should be slow to adopt a new meaning that is ‘substantially different’.

Comment

Warby J usefully clarifies that in meaning applications there is a conceptual difference between inference (drawn by the reader through deductive reasoning) and implication (flowing from what is expressly stated), and that the latter should be focused on by the court to avoid an unreasonable conclusion.

This is also a clear case of how a defamatory meaning can have more than one element. Here, the judge effectively agreed with the claimant’s second strand of meaning, albeit with slight variation, but not the first. Despite holding that the first strand was strained and unreasonable, the judge’s agreement with the second strand still ultimately led to a defamatory meaning.

Oscar Davies works at ACK Media Law and will start pupillage in September 2019.