57.
Allegations can be published with varying degrees of certainty. These degrees of
certainty have been classically analysed at three distinct levels : (i) level 1: the
claimant is ‘guilty’ of the conduct alleged; (ii) level 2: there is ‘reason to suspect’ the
claimant is guilty of the conduct alleged; and (iii) level 3: there are ‘grounds for
investigating whether’ the claimant is guilty of the conduct alleged (see Chase v.
News Group Newspapers [2002] EWCA Civ 1722). These levels calibrate the degree
of proof required by the defendant in a defence of truth (c.f. e.g. Musa King v.
Telegraph Group Ltd [2003] EWCA 1312 (QB) and [2004] EWCA Civ 613).
Lucas-Box Meanings
58.
In determining the meaning of the material complained of the court is “not limited by
the meanings which either the plaintiff or the defendant seeks to place upon the
words” (Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 at 152H).
(2)
Legal principles – approach to meaning of previous speeches and utterances
59.
I turn to consider the legal principles applicable to the second exercise, namely to
establishing the meaning of previous speeches and utterances relied upon in support of
a defence of justification. I am grateful to Mr Caldecott QC and Ms Jane Phillips for
their helpful note on this topic, with which Mr Bennett did not demur.
60.
The objective of the first exercise is to determine the artificial ‘single’ meaning which
the law requires to be attributed to the WCO. The first exercise is artificial in the
sense that in real life there is rarely a ‘single’ meaning and different people may
reasonably interpret words in different ways. The rationale for this search for the
‘single’ meaning is elucidated in the well-known passage from Diplock LJ’s judgment
in Slim v Daily Telegraph [1968] 2 QB 157 at 171-2. (See above)
61.
The objective of the second exercise is not so linear, or otherwise constrained by the
‘single’ meaning rule. The Court has far more flexibility. The reason is that the Court
is concerned with a quite different exercise, namely simply deciding whether the
defendant has proved the ‘sting’ (i.e. of the ‘single’ meaning established in the first
exercise) to be ‘substantially true’. In so doing, the Court does not have to find a
‘single’ meaning or even a range of reasonable meanings in relation to every disputed
passage. The Court simply has to decide whether a section of the audience would
reasonably take the words spoken to convey a particular message. Thus, if the Court
were to conclude that at least a section of the audience would reasonably take the
Claimant’s words to carry a particular message, that would be sufficient to support a
finding that his words conveyed that message, even if it could not be said with
certainty that the words were understood or conveyed the same message to everyone
present.
62.
I summarise below the extent to which the Jeynes criteria set out above have any
utility in the second exercise:
(1) Principle (1) of Jeynes, i.e. reasonableness, is clearly key in the second exercise.
(2) Principle (2) is relevant but not the caution in the last two lines.
(3) Principle (3) is applicable: over-elaborate analysis is to be avoided.
It
is
important to judge the degree of attentiveness which any particular speech is likely
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