Davidoff & Ors v Hargrave [2023] EWHC 1825 (KB)

In the case of Davidoff & Ors v Hargrave [2023] EWHC 1825 (KB) libel proceedings were brought in relation to a tweet and a post to an online article, neither of which expressly referred to the Claimants by name. The Defendant disputed that the publications referred to the Claimants and made an application to the Court to strike out parts of the Claimants’ Particulars of Claim and to consider the issue of reference as a preliminary issue. The Court in response to the applications decided to consider as a discrete issue whether the parties were permitted to adduce evidence on whether the hypothetical reader would click a hyperlink in the tweet. The Court also had to consider whether the Claimants’ innuendo pleadings on reference had been pleaded in the correct manner.

Background

The Claimants are the owners of ABC Estates which is a commercial and residential sales, lettings, and leasehold management business operating across London. The Claimants brought defamation proceedings in relation to negative online reviews published by two former employees of ABC Estates. The Claimants settled the defamation action on favourable terms and there was a statement in open court by the two former employees accepting that the reviews were false and apologising for the same. The settlement and apology were reported on in the local and trade press. The Defendant is the co-founder of a public affairs and government relations consultancy with an interest in leasehold reform.

The publications

The Defendant published the following words in response to the news that the former employees faced legal costs of £60,000 and were due to apologise in open court:

1) A quote-tweet in which the Defendant commented on a tweet from the Leasehold Knowledge Twitter account (the “Tweet”).

The Tweet stated as follows:

“'Sad tale on whistleblowing from the leasehold world. Where a deeply unethical and dishonest firm have capitalised on the unsophisticated methods of those who spoke out. Funnily enough @PBottomleyMP and I haven't been treated in the same way Cc @melyork @anna_tims @LKPleasehold”

The quoted tweet appeared below the Defendant’s tweet:

“Two former employees who criticised ABC Estates in fake Google reviews 'face £60,000 each in costs after libel claim, and must apologies in open court' @PBottomleyMP @michaelgove @team_greenhalgh https://leaseholdknowledge.com/two-former-employees-of-abc-estates-face-6000-each-in-costs-after-libel-claim-and-must-apologise-in-open-court/”

The quoted tweet contained a hyperlink which linked to an article published on www.leaseholdknowledge.com about the statement in open court and which named all four Claimants (the “Leasehold Knowledge Article”).

2) A post below an article published on the Negotiator website headlined “Two estate agents apologise in court over online reviews about employer” (the “Post”). The article named the First Claimant and referenced the other Claimants as three members of his [the First Claimant’s] family. Beneath the article the Defendant published the followed words:

“'The boys referred to above were foolish in their methods and imprecise in their wording – and have unfortunately paid a heavy penalty. It is worth reading recent interventions in the House of Commons by Sir Peter on this subject: https://www.theyworkforyou.com/debates/?id=2022-01-24c.816.0"

Would readers understand that the Defendant was referring to the Claimants?

The Claimants alleged that the Tweet referred to all the Claimants even though none of them were named in the tweet or quote tweet. The Claimants pleaded that the Leasehold Knowledge Article, in which they were all named, formed part of the publication complained of because the Defendant’s words in the Tweet expressly relied upon it and directed Twitter users to read it. In the alternative, the Claimants pleaded that the Tweet referred to the Claimants by innuendo and that an unknown but significant proportion of readers of the Tweet would have read the Leasehold Knowledge Article. In relation to the Post, the Claimants accepted that only the First Claimant was expressly referred to, but a reference innuendo was relied upon in relation to the other Claimants.

As regards the Tweet, the Defendant contended that the words did not bear a natural and ordinary meaning defamatory of the Claimants because the Tweet referred to ABC Estates and not the Claimants. Further, that the ordinary and reasonable user of Twitter would not click the hyperlink in the quote tweet and subsequently read the Leasehold Knowledge Article which named the Claimants. Even if a Twitter user had clicked on the hyperlink and read the Leasehold Knowledge Article, the fact that the Claimants were named in the article would not have been understood to mean that the Tweet referred to each or any of them.

The Defendant applied to strike out parts of the Particulars of Claim (the “PoC”) and for a preliminary issues trial. At a hearing Mrs Justice Williams DBE heard oral submissions on the strike out application and on a discrete point of law as follows: “Are the parties permitted to adduce evidence regarding the defendant’s followers in relation to the question of whether the hypothetical reasonable reader would click the hyperlink in the Tweet”.

Can the parties adduce evidence on the Defendant’s Twitter followers

There was a point of contention between the parties as to whether a reasonable and ordinary reader would click on the hyperlink in the Tweet. To be actionable words alleged to be defamatory must refer to the claimant. Therefore, the court was required to consider the situation where the claimant is named in material which he or she contends the ordinary reasonable reader would read as part of the publication. The Claimants’ counsel submitted that the assessment of whether the hypothetical reasonable reader would click on a hyperlink may be informed by the characteristics of the Defendant’s followers on Twitter. The Defendant’s counsel submitted that this submission was bad in law and unsupported by any authority.

Adducing evidence beyond the publication

The principles concerning the determination of the ordinary and natural meaning of the words were summarised by Nicklin J at paragraphs 11 – 12 of Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB), [2020] 4 WLR 25 ("Koutsogiannis"):

“(i) The governing principle is reasonableness.

(ii) The intention of the publisher is irrelevant.

(iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines...

(iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.

(viii) The publication must be read as a whole, and any 'bane and antidote' taken together...

(ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.

(x) No evidence beyond publication complained of, is admissible in determining the natural and ordinary meaning.

(xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.

(xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader."

Williams J said that on the face of it the correct approach is clear: no evidence beyond the publication complained of is admissible in determining the natural and ordinary meaning of the words complained of. Paragraph (xi) of Koutsogiannis acknowledges the question of whether the hypothetical reasonable reader would understand the words complained of to refer to the claimant to be an objective test, the same test which the court adopts to determine the natural and ordinary meaning of a publication.

At paragraph 36 of his judgment in Monroe v Hopkins [2017] EWHC 433 (QB), [2017] 4 WLR 68 ("Monroe"), Warby J said the following about Twitter readership: “As to the characteristic of the readership, it has been said that in a Twitter case, 'The hypothetical reader must be taken to be a reasonable representative of users of Twitter who follow the Defendant': McAlpine [58] (Tugendhat J)." Williams J accepted the Defendant’s counsel’s submission that paragraph 36 of Monroe was simply a statement of the principle that is summarised at paragraph 12(xi) in Koutsogiannis, applied to the Twitter context. Warby J did not give any indication that he was intending to depart from the usual orthodoxy and that, unlike the reasonable reader of other media, it is permissible for evidence to be called in relation to the characteristics of a defendant's Twitter followers.

Evidence of whether a hyperlink in a publication would be opened

Williams J went on to consider the caselaw relating to whether a hyperlink would be opened by a hypothetical reader. In the case of Falter v Altzmon | [2018] EWHC 1728 (QB) (“Falter”), the court had to consider whether the reasonable reader would have clicked on a hyperlink in an article to view a YouTube interview of a Sky News interview. Nicklin J observed that everything would depend on the context in which the material was presented to the reader and it was not possible to put forward "a hard and fast rule that hyperlinks imbedded in an article that is complained of should be treated as having been read by the ordinary reasonable reader”.

In Poulter v Times Newspapers Limited [2018] EWHC 3900 (QB) (“Poulter”) the court was concerned with the trial of the preliminary issue of meaning in relation to a libel action brought by Daniel Poulter MP. The claim arose from the publication of two articles in the print edition of the Sunday Times and online. In the online versions of the articles, there was a link at the foot of each article to the other article. The claimant contended that the two articles should be read separately, and the defendant submitted that they should be read together. In his judgment, Nicklin J did not suggest that evidence could be adduced as to the nature of the readership for the purposes of resolving this issue. He said:

"24. ...Whether readers follow links provided like this is influenced by a number of factors, including: (1) their familiarity with the story or subject matter and whether they consider they already know that they are offered by way of further reading; (2) their level of interest in the particular article and whether that drives them to wish to learn more; (3) particular directions given to read other material in the article; (4) if the reader considers that he or she cannot understand what is being said without clicking through to the hyperlink. It might be reasonable to attribute items (3) and (4) to the hypothetical ordinary reasonable reader, but (1) and (2) will vary reader by reader.".

Accordingly, the relevant authorities showed that no evidence could be adduced on the Defendant’s Twitter followers in relation to the question of whether the hypothetical reader would have clicked on the hyperlink in the Tweet.

Innuendo meanings

A cause of action based on a legal innuendo is a distinct cause of action from that founded upon under natural and ordinary meaning of the words. The claimant must rely on special circumstances which convey a special defamatory meaning other than the natural and ordinary meaning of the words. In the Particulars of Claim the claimant must specify the individuals to whom the words were published, and the special circumstances known to those individuals [Fullam v Newcastle Chronicle and Journal Ltd [1977] 1WLR 651]. An exception to the rule, is that in the case of a newspaper, where the special circumstances or facts are well known in a particular area of distribution, then it is sufficient to plead an inference that some of the readers must be aware of the facts that gave rise to the innuendo [Fullam v Newcastle Chronicle and Journal Ltd [1977] 1WLR 651; Grapelli v Derek Block Ltd [1981] 1 WLR 822].

The requirements of Practice Direction 53B reflect the caselaw and provide that for a libel action the claimant must set out the natural and ordinary meaning conveyed by the statement and also any innuendo meaning conveyed to some individuals due to the knowledge of extraneous facts. In the case of an innuendo meaning, the claimant must identify the extraneous facts in the Particulars of Claim. In the case of Economou v de Freitas [2016] EWHC 1853 (QB) [2017] EMLR 4 the judgment concerned the trial of a defamation claim brought by the claimant who was not named in the publications. The claimant pleaded that he was an identifiable subject of the words complained of, which accused him of falsely prosecuting the defendant’s late daughter for having perverted the course of justice by accusing the claimant of rape. The claimant pleaded by description categories of people who knew that he had been accused and that he had brought the private prosecution. The evidence provided included names and documentary material.

A) The Tweet

At paragraph 10 of the APoC it was alleged that the Leasehold Knowledge Article (i.e. the article linked to the hyperlink in the Tweet): "formed part of the publication complained of: the Defendant's words expressly relied upon the @LPKnowledge tweet and hyperlink and thereby directed readers to view it".

At paragraph 11 of the APoC the Claimant pleaded that “the 7 May 2022 Tweet bore (and was understood to bear) the meaning at [9] above and referred (and was understood to refer) to the Claimants by innuendo. An unknown but significant proportion of readers would have read the article at the hyperlink, for the reasons given at [10] above."

The Defendant contended that paragraph 11 of the APoC did not meet the prescribed requirements for pleading a reference innuendo as the special facts were not pleaded at all and there was no direct evidence of reference pleaded in the form of individual readers who had followed the hyperlink, read the words in the Leasehold Knowledge Article, and subsequently understood the Tweet to refer to the Claimants. No basis was pleaded from which the Court could draw an inference that some readers had followed the hyperlink and understood that the alleged defamatory meaning referred to the Claimants. For example, nothing had been pleaded by way of readership figures or retweets, which would enable an inference that there were likely to be a large number of readers of the Tweet overall.

The Claimant referred to Falterand contended that Nicklin J had identified a new means by which a claimant could establish that the words complained of referred to him or her. In such a case, there was a link in the original message or article which took the reader to another document which named or otherwise identified the claimant, and some readers would have done this and read that material. The Claimant’s counsel said that the well-established requirements concerning the pleading of legal innuendos did not apply in these types of “hybrid innuendo” cases, in respect of which this was one. In the alternative, the Claimant pleaded that paragraph 11 of the APoC was sufficiently pleaded as to allow for an inference that some readers would have followed the hyperlink and read the Leasehold Knowledge Article.

Williams J rejected the Claimant’s counsel’s submission that Nicklin J’s judgment in Falter created a new type of legal innuendo for the claimant to establish reference. Nicklin J was only making a brief obiter dicta observation that the innuendo meaning relies on the hyperlinked material as material that at least a large proportion of readers would have read. Williams J said that paragraph 11 of the APoC is defective as there was no properly pleaded cause of action based on a reference innuendo in relation to the Tweet.

B) The Post

Paragraph 8 of the APoC contended that the words complained of in the Post referred to the First Claimant in their natural and ordinary meaning, because the text named him. The pleading continued: "8. ...Further, the words complained of referred, and were understood to refer to the Second to Fourth Claimants.” Particulars of Reference were then provided explaining that the article above the Post referred to three members of the Davidoff family and referred to articles on Leasehold Knowledge naming the Claimants. At paragraph 8.2, further or in the alternative, it was pleaded that the Second and Fourth Claimants were widely known to be related to the First Claimant, and so was their connection to ABC Estates by reason of various facts which were subsequently set out.

The Defendant’s counsel submitted that paragraphs 8.1 and 8.2 were defective as the Claimants had not pleaded that at the time the Post was read that there were readers who would understand the words complained of to refer to the Claimants. In relation to paragraph 8.1 of the APoC, no extrinsic facts were pleaded that some readers would understand the words complained of to refer to the Second to Fourth Claimants. In so far as paragraph 8.1 was intended to rely upon an inference that a significant number of readers would have read all or some of the material that was referred to in advance of reading the Post, the basis the Court was to identify the inference was not identified. The Negotiator on which the Post was published was not a mass newspaper and the post to the original article was posted weeks after the date of first publication. Paragraph 8.2 did not invite the court to draw an inference or identify any known readers who were aware of the facts set out at Paragraph 8.2 connecting the Second to Fourth Claimants to the First Claimant and ABC Estates.

The Claimant’s counsel accepted that the Claimant’s case would have to be confined to the knowledge that readers had at the time of the Defendant’s post and that the pleading did not currently reflect this. He also submitted that paragraphs 8.1 and 8.2 should be read together rather than alleging two separate bases for a reference innuendo, but this was not currently pleaded. The Claimant’s counsel said that it was an inference that was being replied upon, rather than any attempt to identify particular readers. Williams J agreed with the Defendant’s counsel that the pleadings on reference were defective. The Defendant’s counsel proposed that the reference case of innuendo of the Second to Fourth Claimants was bound to fail as it was inherently improbable that readers would read the Post with the matters in mind that the Claimants sought to rely on. However, Williams J did not agree with this proposition, and said that this was a strike out application and not a summary judgment application or a trial of preliminary issues where some evidence could be adduced.

Conclusion

Williams J agreed with the Defendant’s counsel and concluded that the parties were not able to adduce evidence of the Defendant’s Twitter followers in relation to the question of whether the hypothetical reasonable reader would click on the hyperlink in the Tweet or not. No evidence beyond the publication complained of is admissible in determining whether the hypothetical reasonable reader would understand the words to refer to the claimant. The case law did not support a departure from orthodoxy. Williams J could not confidently conclude that the current deficiencies in the Claimants’ APoC were incapable of remedy such that a viable claim could not be pleaded. Williams J declined to strike out the innuendo pleadings on reference and ordered that the Claimants be given an opportunity to amend the APoC.

Comment

This case is a reminder that care should be taken when pleading innuendos of reference. The changes in the way individuals receive and transmit information on social media and the internet have not changed the manner in which an innuendo should be pleaded with the extraneous facts set out and in accordance with Practice Direction 53B. Further, where there is publication on social media, the usual rules apply as to whether evidence beyond the publication can be considered to determine whether the hypothetical reader would understand the words to refer to the claimant.