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Today, 24 January 2019, five Supreme Court judges (Lord Reed, Lord Kerr, Lady Black, Lord Briggs and Lord Kitchin) will hear Stocker v Stocker UKSC 2018/0045, an appeal against the 12 February 2018 Court of Appeal decision of Lady Justice Sharp, with whom Lord Justice McFarlane and Sir John Laws concurred ([2018] EWCA Civ 170).

The case has attracted some media attention in light of recent suggestions that English law, particularly libel law, is being abused by wealthier males to silence female accusers. Given the underlying facts of the case, if the appellant does lose then she may rightly feel a deep sense of injustice, whatever the law.

The appeal will also, however, deal with several points which may be of special interest to practitioners. It will, in particular, examine (1) the process by which a first instance judge may arrive at his interpretation of the meaning, and (2) the circumstances in which an appellate court may override a lower court’s decision as to the meaning.

As practitioners will know, the determination of meaning can be so decisive in libel cases that recent years have seen increasing numbers of trials of meaning as a preliminary issue, in an attempt to establish some certainty and save time and costs. The point is well summarised in Ms Stocker’s Grounds of Appeal [pdf], at paragraph 7:

The determination of meaning is often determinative of the outcome of the claim. If the meaning upheld by the court is materially more serious than that intended by the defendant a truth defence will not succeed even if the defendant can prove the truth of her intended meaning. […]  If the meaning found by the court is not the right meaning, the result will be a serious and unjustified interference with the defendant’s right to freedom of expression and a false public vindication for the claimant.

It follows that Supreme Court attention in this area should be welcomed by libel practitioners and observers alike. However the implications could be far-reaching.

Background

First Instance

The case involves a 23 December 2012 Facebook posting by Ms Stocker relating to her former husband, in which Ms Stocker alleged that Mr Stocker had “tried to strangle me”. Mr Stocker sued for defamation. It duly fell to the first instance judge, Mitting J, to determine the meaning of Ms Stocker’s words, “tried to strangle” – whether (1) as Mr Stocker alleged, the words meant that Mr Stocker had tried to kill Ms Stocker by strangling her (an allegation that Mr Stocker said was untrue and defamatory), or (2) a lesser meaning (as contended by Ms Stocker), that Mr Stocker had violently gripped Ms Stocker’s neck. Ms Stocker attempted to adduce external material as to the usage of the word “strangle” in this lesser sense.

Had the judge accepted Ms Stocker’s lesser meaning, it follows that her defence of justification (Sharp-eyed readers will have already noted that Ms Stocker’s 2012 Facebook posting preceded the coming into force of the Defamation Act 2013 and the replacement of ‘justification’ with the defence of truth under s 2(3) of the Act.) might then have succeeded. However, after consulting the OED and the two meanings of “strangle” given therein, the judge concluded that the reader would not have understood Ms Stocker to be alleging that Mr Stocker had merely tried to compress her neck – because it was obvious she was alleging that he in fact had compressed her neck (leaving handprints on it). The all-important “single right meaning” (i.e. what the reader would have understood Ms Stocker’s words to mean) was that Mr Stocker had tried but failed to kill Ms Stocker by compressing her neck. He found that Ms Stocker’s words were a significant and distorting overstatement of the common assault that in fact occurred, and thus fell far short of establishing a successful defence of justification. On this basis, he held that Mr Stocker had been libelled ([2016] EWHC 474 (QB)).

The Court of Appeal

Ms Stocker appealed. In determining the appeal ([2018] EWCA Civ 170), Lady Justice Sharp approved Mitting J’s approach to establishing the meaning:

“The Judge directed himself explicitly by reference to the well-established principles set out in Jeynes v News Magazines Limited [2008] EWCA Civ 130 (as qualified in Rufus v Elliott [2015] EWCA Civ 121); moreover, since he had merely used the dictionary definitions as a check and no more, his ultimate reasoning was sound.

Lady Justice Sharp proceeded to state, at [19] that, when the Court of Appeal comes to consider meaning:

“The issue is not whether we would have come to the same or a different conclusion had we been trying the case at first instance. That would be to usurp the judge’s function. It was open to Mr Price to argue his points on context and domestic violence before the judge as he did, but in my opinion, putting forward what amounts to a re-argument of the appellant’s case on meaning does not assist him in this appeal. The judge referred to and applied the correct principles of law, his reference to dictionaries, which was understandable in the circumstances, did not lead him into error, and in my opinion his decision as to meaning was one that was plainly open to him.”

The first instance judge’s meaning was therefore upheld, and Lady Justice Sharp ultimately dismissed Ms Stocker’s appeal. The meaning thus remained at “tried to kill by strangulation”.

Permission to appeal to the Supreme Court

Ms Stocker sought permission to appeal to the Supreme Court – and on 9 July 2018 Lord Kerr, Lord Lloyd-Jones and Lord Briggs granted the permission to appeal the decision of the Court of Appeal to dismiss her appeal from the judgment of Mitting J.

Ms Stocker’s Grounds of Appeal were unsurprisingly broad-ranging – indeed, the early paragraphs include an opportunistic assault on the single meaning rule itself. However, the issues under consideration have now been clarified (and there is no suggestion the single meaning rule will be dislodged).

The issues to be considered by the Supreme Court

These are stated on the Supreme Court website to be:

  1. “Whether the judge erred in determining the meaning of the words complained of, contrary to material adduced by the appellant as to the usage of the words to which he should have had regard”; and
  2. “Whether the Court of Appeal erred in its approach to the standard of appellate review of the determination of meaning”

Reviewing the relevant sections of the Grounds of Appeal, it is clear the Supreme Court will be told that there is no actual rule of law/civil procedure which prevents a defendant (or appellant) putting external material before the Court to demonstrate usage of the relevant words. This approach seeks to capitalise on a possible misstep by Mitting J: his use of a dictionary. By turning to the OED, Mitting J allowed external material in relation to the word ‘”strangle” – but he excluded Ms Stocker’s submitted external material concerning the use of the phrase “tried to strangle”. The question has far-reaching implications: while it is settled that there is a rule against external evidence showing how the words used were in fact understood by the publishes (because meaning is determined objectively) it is being suggested that there is no bar against external evidence being admissible as to the words’ general usage. The Court of Appeal arguably side-stepped the issue, noting that Mitting J had said he “merely used the dictionary definitions as a check, and no more” and that “no harm was done”. However, it appears the Supreme Court may wish to more positively clarify the position.

Second, the Grounds of Appeal also make clear that the Supreme Court will be taken to a considerable body of case law indicating a sometimes inconsistent approach by the Court of Appeal in handling first-instance decisions on meaning. For some decades the appellate courts have, in some eyes, been able to have their cake and eat it. When confronted with a decision on meaning of which it disapproves, the Court of Appeal will substitute its own meaning, but when confronted with a meaning of which it approves the Court of Appeal is deferential to the position of the first-instance judge. In particular, the Grounds of Appeal make clear that the Supreme Court will be told that Lady Justice Sharp applied too low a standard when concluding that the Court of Appeal should not interfere on meaning because the meaning reached by Mitting J was “plainly open to him”. It will hear that it is the role of the appellate court to either affirm the first-instance decision or substitute a new meaning: what it cannot do is weakly conclude it should not interfere so long as the decision reached was “open to” the first instance judge.

Comment

Supreme Court grants of permissions to appeal are, of course, given without much in the way of explanation. It follows that observers (and indeed perhaps sometimes the parties) are left wondering exactly what it is that has caught the Supreme Court’s interest. In some cases, it appears the Supreme Court grants permission not to overturn the judgment but for the purposes of clarifying the law while substantially upholding the lower court’s decision. Here, the Supreme Court can in any event be expected to avail itself of the opportunity to clarify the law on the proper route to interpretation of meaning, and the admission (or non-admission) of external evidence on usage.

If, however, the Supreme Court is intervening because it suspects that the decision of the first-instance judge was wrong as to meaning (in other words, that “tried to strangle” does not suggest an intent to kill) and it is minded to consider substituting a new meaning, then it is going to have to disagree with the Court of Appeal’s cautious interpretation of the circumstances in which it may overturn the decision of a first-instance judge on the single right meaning. In other words, the Supreme Court could be considering going on record as disapproving Lady Justice Sharp’s position that single right meaning is essentially a matter of fact best determined only by the first instance judge, with which a higher court should not readily interfere.

If it does so, it will be an ambitious step. A Supreme Court decision ending decades of flexible ambiguity and impliedly favouring the overturning of meanings on appeal would be likely to lead to an increase in such outcomes – leading in turn, perhaps, to a proliferation of summary retrials in the higher courts, each case rebased for a different meaning. It would mean greater uncertainty for successful litigants as opponents who effectively lost their cases at the meaning determination see greater incentive to try their luck at appeal.

Given the above, it seems plausible the Supreme Court will shy away from something so bold. If it is minded to replace Mitting J’s meaning, it may simply suggest that the Court of Appeal’s approach (that the meaning held was “open to” the first-instance judge) was inadequate – and then use the external evidence question to get to the desired outcome. However, even in this scenario, the Supreme Court will still have to give some guidance as to how the Court of Appeal should have approached the matter.

Perhaps, then, those of us planning to “shoot”, or “drown”, or “choke” someone will finally have clarity on how the law will assess a report of those actions.

This article was originally posted here.