Hilary Term [2019] UKSC 17 On appeal from: [2018] EWCA Civ 170

JUDGMENT
Stocker (Appellant) v Stocker (Respondent)
before
Lord Reed, Deputy President
Lord Kerr
Lady Black
Lord Briggs
Lord Kitchin
JUDGMENT GIVEN ON
3 April 2019
Heard on 24 January 2019
Appellant Respondent
David Price QC Manuel Barca QC
Jonathan Price Claire Overman
(Instructed by David Price
Solicitor Advocate
)
(Instructed by SA Law
LLP
)
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LORD KERR: (with whom Lord Reed, Lady Black, Lord Briggs and Lord
Kitchin agree)
1. “He tried to strangle me.” What would those words convey to the “ordinary
reasonable reader” of a Facebook post?
Background
2. The respondent to this appeal, Ronald Stocker, is the former husband of the
appellant, Nicola Stocker. Their marriage ended in acrimony in 2012. Mr Stocker
subsequently formed a relationship with Ms Deborah Bligh. On 23 December 2012
an exchange took place between Mrs Stocker and Ms Bligh on the Facebook
website. In the course of that exchange, Mrs Stocker informed Ms Bligh that her
former husband (now Ms Bligh’s partner) had tried to strangle her. It is now clear
that the date on which this is alleged to have occurred is 23 March 2003.
3. Mrs Stocker also said that her husband had been removed from the house
following a number of threats that he had made; that there were some “gun issues”;
and that the police felt that he had broken the terms of a non-molestation order.
These statements and the allegation that Mr Stocker had tried to strangle her were
the basis on which he took proceedings against her for defamation.
4. The allegations about threats, gun issues and the breach of a non-molestation
order are relevant to provide context to the statement that Mr Stocker had tried to
strangle Mrs Stocker. They paint a picture of acute marital conflict and on that
account set the scene for any reader of the Facebook post. That reader would know
that Mrs Stocker’s statement that her former husband had tried to strangle her was
made against the background that this had been, towards the end of its life, a most
disharmonious marriage.
The proceedings in the High Court
5. Mr Stocker issued proceedings against his former wife, claiming that the
statement that he had tried to strangle her was defamatory of him. He claimed that
the meaning to be given to the words “tried to strangle me” was that he had tried to
kill her. Mrs Stocker denied that the words bore that meaning. She claimed that, in
the context of domestic violence, the words do not impute an intention to kill. What
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they would be understood to mean, she said, was that her husband had violently
gripped her neck, inhibiting her breathing so as to put her in fear of being killed.
6. Mr Stocker also claimed that the statement that he had uttered threats and
breached a non-molestation order was defamatory and was to be taken as implying
that he was a dangerous and thoroughly disreputable man. Mrs Stocker refuted this.
She said that it was not reasonable to infer that she had suggested that her husband
was dangerous on account of his having been arrested a number of times. It is to be
observed, however, that in the defence filed on her behalf, Mrs Stocker averred that
the statement that her husband was dangerous and disreputable was justified. It
seems likely that this was by way of alternative plea. In any event, for reasons that
will later appear, this is immaterial because of the rule concerning the substantial
truth of the statements made by the alleged defamer.
7. At the start of the defamation proceedings, Mitting J, the trial judge,
suggested that the parties should refer to the Oxford English Dictionary’s definition
of the verb, “strangle”. This provided two possible meanings: (a) to kill by external
compression of the throat; and (b) to constrict the neck or throat painfully. The judge
was asked by counsel for the appellant, Mr Price QC, to consider how the words,
“tried to strangle” had been used in different contexts. Mr Price also sought to
introduce legal definitions of the word “strangle”. These do not appear to have been
taken into account by Mitting J and he did not refer to them in his judgment.
8. Mr Stocker gave evidence that, on the occasion when the altercation which
led to his wife accusing him of trying to strangle her took place, he had been standing
on a stool or a chair while she was adjusting the length of a pair of his trousers. She
had pricked him with a pin. He had sworn at her. She swore back at him and he
placed his hand over her mouth to prevent her raised voice from waking their
sleeping son. The judge rejected this account, saying, at para 43:
“I do not accept [Mr Stocker’s] account that he merely put one
hand over [Mrs Stocker’s] mouth while he was standing on the
stool or chair. His hand would have been at his thigh level. He
could not have exerted more than momentary pressure on her
mouth, from which she could instantly have escaped. Nor could
he have left the reddening marks on her neck or throat which I
am satisfied were seen by the police. I do not, however, believe
that he threatened to kill her or did anything with his hands with
that intention. I do not believe that he was capable even in
temper of attempted murder. The most likely explanation about
what happened is that he did in temper attempt to silence her
forcibly by placing one hand on her mouth and the other on her
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upper neck under her chin to hold her head still. His intention
was to silence, not to kill.”
9. This finding implicitly rejects Mrs Stocker’s account of the incident also. She
had said that her husband had dismounted from the chair, had pushed her against a
small sofa, put his hands around her neck and squeezed, causing her to believe that
he would kill her. The judge accepted that some two hours after the incident, red
marks on Mrs Stocker’s neck had been seen by police officers but he came up with
a theory as to how those had come about which neither party had proposed.
10. It is of course open to a trial judge, after considering all the evidence, to reach
his or her own conclusions or to draw inferences which neither party has advanced
or espoused. But there must be a sound basis for doing so. In this case, the judge
accepted the police evidence that there were red marks on Mrs Stocker’s neck. Mr
Stocker had agreed during a police interview that it was possible that he had put his
hand around his wife’s neck and, implicitly, that this had caused the red marks that
were found there. He had also said that he had dismounted from the chair or stool
on which he had been standing; had followed Mrs Stocker over to a chair and that it
was possible that he had put his hand around her neck. Unsurprisingly, he was
content to go along with a suggestion put to him by a police officer that he had not
“maliciously grabbed her around the throat or tried to assault her”.
11. At no point did Mr Stocker claim that he had grasped his wife by the throat
in order to secure his hand covering her mouth or to prevent her from wrenching
free from his grasp. Nor did he suggest that he could not have prevented her from
shouting simply by placing his hand over her mouth. It is to be noted that he had
admitted to police that he had alighted from the stool or chair. If that statement was
accurate and truthful, he was therefore on the same level as his wife. Yet, the judge
rejected Mr Stocker’s evidence that he had simply put his hand over his wife’s
mouth. Mitting J considered that a further hand (on the neck) was needed to secure
the grip on Mrs Stocker’s mouth. This conclusion seems to have been premised on
Mr Stocker remaining on the chair. (And, in fairness to the judge, it seems that Mr
Stocker so claimed in evidence.)
12. If other considerations had not supervened, there might well have been an
issue as to whether it was open to the judge to reach the conclusion which he did,
particularly because that conclusion is more benevolent to Mr Stocker than any
version of the facts which he could reasonably have advanced. It seeks to explain
the red marks on a basis which Mr Stocker has never argued for. In the event,
however, it is unnecessary to deal with that matter because of the conclusions that I
have reached on other issues and, since it had not been argued that the judge’s
finding on this point was one which he should not have made, I say nothing more
about it.
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13. The judge began his discussion about the meaning to be given to the
statements said to be defamatory by referring to the well-known case of Jeynes v
News Magazines Ltd [2008] EWCA Civ 130 and cited the eight propositions made
in that case by Sir Anthony Clarke MR in para 14. The judge also quoted the
supplementary qualification to those propositions provided by Sharp LJ in Rufus v
Elliott [2015] EWCA Civ 121, para 11. (Both authorities will be considered below.)
14. Having considered these judicial pronouncements, Mitting J said that he did
not understand that either authority indicated that, in order “to confirm the meaning
in ordinary usage of a single English word”, it was impermissible to refer to “an
authoritative English dictionary such as the Oxford English Dictionary.” He then
referred to the two dictionary definitions which I have set out at para 7 above and
continued at para 36:
“If the defendant had said ‘he strangled me’, the ordinary
reader would have understood her to have used the word in the
second sense for the obvious reason that she was still alive. But
the two Facebook comments cannot have been understood to
refer to ‘trying’ to strangle her in that sense because, as she
said, the police had found handprints on her neck. These could
only have been caused by the painful constriction of her neck
or throat. If understood in that sense, she could not have been
taken to have said that the defendant had tried to strangle her
because he had succeeded. The ordinary reader would have
understood that the defendant had attempted to kill her by
external compression of her throat or neck with his hands
and/or fingers.”
15. It is clear from this passage of his judgment that the trial judge had confined
the possible meaning of the statement, “he tried to strangle me” to two stark
alternatives. Either Mr Stocker had tried to kill his wife, or he had constricted her
neck or throat painfully. In the judge’s estimation, the fact that Mrs Stocker had said
that her husband “tried” to strangle her precluded the possibility of her statement
being taken to mean that he had constricted her neck painfully.
16. This approach produces an obviously anomalous result. If Mrs Stocker had
said, “he strangled me”, she should be understood to have meant that her husband
had constricted her neck or throat painfully, on account of her having survived to
tell the tale. But, because she said that he had “tried” to strangle her (in the normal
order of things and in common experience a less serious accusation), she was fixed
with the momentous allegation that her husband had tried to kill her. On this
analysis, the use of the verb, “to try” assumes a critical significance. The possible
meaning of constricting the neck painfully was shut out by what might be regarded
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as the adventitious circumstance that Mrs Stocker had said that her husband had
“tried” to strangle her rather than that he had strangled her.
17. This anomalous result was the product of confining the meaning of the words
exclusively to two dictionary definitions. If “tried to strangle” did not fit with the
notion of trying to constrict the neck or throat painfully (because of the prosaic fact
that Mrs Stocker was still alive), the only possible meaning was that Mr Stocker had
tried to kill.
18. On the remainder of the claimed defamatory meaning the judge’s reasoning
was closely allied to that on the first part. In the passage of his judgment which
immediately succeeded that quoted at para 14 above, he said at para 36:
“That understanding [that her husband had tried to kill Mrs
Stocker] would have informed the ordinary reader about the
meaning of the remaining comments. They were that he had
been arrested on at least two other occasions for ‘gun issues’
and for breach of a non-molestation order and possibly on a
third for ‘threats’. In addition, he would have understood her to
assert that the police believed that he had broken the terms of
the non-molestation order; in other words, that there was a basis
beyond mere suspicion for doing so.”
19. The judge then dealt with an argument made on behalf of Mrs Stocker that
all that she had done was to state that Mr Stocker had been arrested on more than
one occasion and that this was not itself a defamatory statement. Of these claims,
the judge said this at para 37:
“I agree that in principle the statement that a person has been
arrested is not necessarily defamatory. But these statements,
taken together, go well beyond that. They justify the claimant’s
pleaded case that the reasonable inference to draw from the
statement was that the defendant was dangerous, at least to any
woman with whom he lived or had lived, that he was a man
who tried to kill on one occasion, had been arrested for an
offence involving firearms on another, and had given the police
reason to believe that he had broken a non-molestation order
made against him. To describe him thus was defamatory.”
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20. The meaning attributed by the judge to the statement that the claimant had
been arrested, in the context of the other statements, therefore was that Mr Stocker
was a man who was dangerous to any woman with whom he had lived or might live.
21. Mrs Stocker had pleaded that her statements were substantially true and that
she was therefore entitled to rely on the defence of justification. The judge dealt with
that plea in para 54 of his judgment:
“The defendant has proved some justification for the words
which she used in the Facebook postings. The claimant did
commit an offence against her on 23 March 2003, at least
common assault. He was arrested three times. There were ‘gun
issues’. He had made threats, though not of immediate violence
against her. But she has not met the sting of the postings that
the claimant was a dangerous man. The impression given by
the postings to the ordinary reader was a significant and
distorting overstatement of what had in fact occurred.”
The Court of Appeal
22. At para 17 of her judgment, Sharp LJ in the Court of Appeal said this about
the use of dictionaries as a means of deciding the meaning to be given to a statement
alleged to be defamatory:
“The use of dictionaries does not form part of the process of
determining the natural and ordinary meaning of words,
because what matters is the impression conveyed by the words
to the ordinary reader when they are read, and it is this that the
judge must identify. As it happened however no harm was done
in this case. The judge told counsel during the course of
submissions that he had looked at the OED definitions and
what they said, so the parties had the opportunity to address
him about it; the judge, as he then said, merely used the
dictionary definitions as a check, and no more; those
definitions were in substance the rival ones contended for by
the parties, and in the event, the judge’s ultimate reasoning, not
dependent on dictionaries, was sound.”
23. The suggestion that the judge told counsel “in the course of submissions” that
he had looked at the dictionary definition may mislead. On the first day of the trial,
before any evidence had been given, counsel for Mr Stocker, Mr Barca QC, had
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suggested to Mitting J that no time would be saved by asking him to deliver a
preliminary ruling on meaning. The judge replied that he had “a preliminary opinion
about it” which he was willing to disclose. Shortly thereafter, he suggested that
counsel should look at the Oxford English Dictionary definitions and said, “You
might from that gain the primary and secondary definition and fit it (sic) into the
context of a message that he ‘tried’ to do something”. All of this occurred before the
judge heard any argument about meanings. This suggests that, contrary to Sharp
LJ’s view, the judge was not using the dictionary definitions as a cross-check.
Plainly, he regarded those definitions as comprehensive of the possible meanings of
the statement, “he tried to strangle me”.
24. Sharp LJ’s statement that Mitting J merely used the dictionary definitions as
a check may have been based on his comment in para 36 of his judgment that the
authorities do not “prohibit reference to an authoritative English dictionary such as
the Oxford English Dictionary to confirm the meaning in ordinary usage of a single
English word”. I do not construe this statement as signifying that the judge was using
the dictionary definitions as a cross-check and, indeed, neither in his judgment nor
in his exchanges with counsel, does he ever use the expression, “check”. Given that
Mitting J had consulted the dictionary before the trial began and commended
consideration of it to counsel, it seems to me plain that, far from using the definitions
as a check, what the judge did was to regard the two definitions as the only possible
meanings which he could consider or, at the very least, the starting point for his
analysis, rather than a cross-check or confirmation of the correct approach.
25. Therein lies the danger of the use of dictionary definitions to provide a guide
to the meaning of an alleged defamatory statement. That meaning is to be
determined according to how it would be understood by the ordinary reasonable
reader. It is not fixed by technical, linguistically precise dictionary definitions,
divorced from the context in which the statement was made.
26. Moreover, once the verb, “strangle” is removed from its context and given
only two possible meanings before it is reconnected to the word, “tried” the chances
of a strained meaning are increased. The words must be taken together so as to
determine what the ordinary reasonable reader would understand them to mean.
Mitting J examined the word “strangle” in conspicuous detail before considering it
in conjunction with the word, “tried”. Having determined that “strangle” admitted
of only two possible meanings, he then decided that “tried” could be applied to only
one of these. Underpinning his reasoning is the unarticulated premise that “to try”
is necessarily “to try and fail”. Since Mr Stocker had not failed to constrict his wife’s
throat, the judge concluded that the only feasible meaning of the words was that he
had tried (and failed) to kill her. But that is not how the words are used in common
language. If I say, “I tried to regain my breath”, I would not be understood to have
tried but failed to recover respiratory function.
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27. On the meaning found by the judge at para 37 of his judgment (that Mr
Stocker was dangerous to any woman with whom he lived), Sharp LJ at para 21 of
her judgment said:
“The judge’s reference to the respondent’s dangerousness was
merely his overall characterisation of the impression the
[comments made by Mrs Stocker on Ms Bligh’s Facebook
wall] conveyed, in the light of the discrete meanings he had
found them to bear (the respondent had tried to kill etc). This
was not a freestanding meaning therefore detached from the
meanings complained of, nor was this a characterisation which
founds an appeal that the judge was wrong; indeed to my mind,
in the light of the meanings found by the judge, this overall
characterisation of what was alleged was self-evidently
correct.” (Emphasis added)
28. Plainly, the Court of Appeal considered (as did, indeed, the judge) that that
meaning was dependent, to some extent at least, on the correctness of Mitting J’s
conclusion as to the meaning to be given to the words, “tried to strangle me”. The
passage quoted was in reaction to Mr Price’s argument that the judge was wrong to
have fastened on that meaning when it had not been advanced by Mr Stocker. Sharp
LJ had observed of this argument that the judge was not bound to accept either
party’s contention on meaning; his task was “to identify the single meaning of the
words complained of within the relevant area of contention”. For reasons that will
appear, it is important to note the two aspects of Sharp LJ’s reasoning: first that the
judge was entitled to fix on a meaning which had not been advanced by either party;
and, secondly, that his choice of meaning was influenced by his findings in relation
to the first defamatory meaning – that Mrs Stocker’s words “he tried to strangle me”
were to be taken as meaning that her husband had tried to kill her.
29. Sharp LJ then turned to the question of justification. She referred to an
argument advanced on behalf of Mrs Stocker that the judge had failed to advert to
section 5 of the Defamation Act 1952 (which has now been replaced by section 2(3)
of the Defamation Act 2013):
“In an action for libel or slander in respect of words containing
two or more distinct charges against the plaintiff, a defence of
justification shall not fail by reason only that the truth of every
charge is not proved if the words not proved to be true do not
materially injure the plaintiff’s reputation having regard to the
truth of the remaining charges.”
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30. At para 25, Sharp LJ said:
“I can see why an issue in relation to section 5 might arise for
consideration if the judge was wrong to conclude that the
comments alleged the respondent had tried to kill the appellant
by strangling her. In my view however, the failure of the
principal argument on meaning deprives the argument on
section 5 of any force that it might have had. The judge found
in short that there was a real and substantial difference between
the allegations made and those proved; and in my view he was
entitled to reach that view on the evidence he heard. Having
carefully appraised the evidence of justification and dealt with
the essential points relating to that defence, the judge put the
matter in this way. Though the appellant had proved some
justification for the words she used, the allegations made in the
comments were a significant and distorting overstatement of
what had in fact occurred. His views were similarly expressed
during the course of submissions. It is true that the judge found
as a fact that during the course of an argument, the respondent
had committed common assault at least, by placing his hand
over the appellant’s mouth and putting his hand under her chin,
to stop her speaking. However there is a material difference in
gravity between such conduct, however unpleasant it may be,
and an attempt to kill by strangulation; and it was plainly open
to the judge to find, as he did, that what the appellant had
proved in this and other respects, fell short by some measure of
establishing a successful defence of justification, by reference
to section 5 or otherwise.”
31. Again, it is to be noted that the finding of Mitting J about the meaning to be
given to the words, “he tried to strangle me” was pivotal to the conclusion that
section 5 could not be prayed in aid by Mrs Stocker. It is clear that, if it had been
held that Mitting J was wrong to fix on the meaning of those words that he did, a
markedly different view as to the applicability of section 5 would have been
warranted.
The single meaning rule
32. Section 11 of the Defamation Act 2013 abolished the statutory right to trial
by jury (in section 69(1) of the Senior Courts Act 1981). Under the previous
dispensation, the judge would determine which meanings the allegedly defamatory
words were capable of bearing and exclude those which she or he considered they
were not capable of bearing. The judge would then put to the jury the various
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possible meanings and, with appropriate directions, invite the jury to decide which
of those adumbrated meanings was the one to be attributed to the words said to be
defamatory.
33. The almost complete abolition of jury trial meant that the task of choosing a
single meaning fell to the judge alone. The exercise of choosing a single immutable
meaning from a series of words which are capable of bearing more than one has
been described as artificial – see, in particular, Diplock LJ in Slim v Daily Telegraph
Ltd [1968] 2 QB 157, 172C. But the single meaning rule has had its robust defenders.
In Oriental Daily Publisher Ltd v Ming Pao Holdings Ltd [2013] EMLR 7, Lord
Neuberger of Abbotsbury, sitting as a judge of the Hong Kong Court of Final
Appeal, said at para 138 that the criticism of the rule’s artificiality and (implicitly)
its irrationality was misplaced. He suggested that the identification of a single
meaning to be accorded a statement arose “in many areas of law, most notably …
the interpretation of statutes, contracts and notices” – para 140.
34. Whether the analogy between a single defamatory meaning and a sole
meaning to be given to a contractual term, statutory provision or notice is apt (which
I take leave to doubt), it is clear that the single meaning approach is well entrenched
in the law of defamation and neither party in the present appeal sought to impeach
it. And, whatever else may be said of it, it provides a practical, workable solution.
Where a statement has more than one plausible meaning, the question of whether
defamation has occurred can only be answered by deciding that one particular
meaning should be ascribed to the statement.
35. It is then for the judge to decide which meaning to plump for. Guidance as to
how she or he should set about that mission was provided in Jeynes (mentioned in
para 13 above). At para 14, Sir Anthony Clarke MR set out the essential criteria:
“(1) The governing principle is reasonableness. (2) The
hypothetical reasonable reader is not naïve, but he is not unduly
suspicious. He can read between the lines. He can read in an
implication more readily than a lawyer and may indulge in a
certain amount of loose thinking, but he must be treated as
being a man who is not avid for scandal and someone who does
not, and should not, select one bad meaning where other nondefamatory meanings are available. (3) Over-elaborate analysis
is best avoided. (4) The intention of the publisher is irrelevant.
(5) The article must be read as a whole, and any ‘bane and
antidote’ taken together. (6) The hypothetical reader is taken to
be representative of those who would read the publication in
question. (7) In delimiting the range of permissible defamatory
meanings, the court should rule out any meaning which, ‘can
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only emerge as the produce of some strained, or forced, or
utterly unreasonable interpretation …’ (see Eady J in Gillick v
Brook Advisory Centres approved by this court [2001] EWCA
Civ 1263 at para 7 and Gatley on Libel and Slander (10th ed),
para 30.6). (8) It follows that ‘it is not enough to say that by
some person or another the words might be understood in a
defamatory sense.’ Neville v Fine Arts Co [1897] AC 68 per
Lord Halsbury LC at 73.”
36. Sharp LJ added a rider to the second of these criteria in Rufus v Elliott when
she said at para 11:
“To this I would only add that the words ‘should not select one
bad meaning where other non-defamatory meanings are
available’ are apt to be misleading without fuller explanation.
They obviously do not mean in a case such as this one, where
it is open to a defendant to contend either on a capability
application or indeed at trial that the words complained of are
not defamatory of the claimant, that the tribunal adjudicating
on the question must then select the non-defamatory meaning
for which the defendant contends. Instead, those words are
‘part of the description of the hypothetical reasonable reader,
rather than (as) a prescription of how such a reader should
attribute meanings to words complained of as defamatory’: see
McAlpine v Bercow [2013] EWHC 1342 (QB), paras 63 to 66.”
37. Clearly, therefore, where a range of meanings is available and where it is
possible to light on one meaning which is not defamatory among a series of
meanings which are, the court is not obliged to select the non-defamatory meaning.
The touchstone remains what would the ordinary reasonable reader consider the
words to mean. Simply because it is theoretically possible to come up with a
meaning which is not defamatory, the court is not impelled to select that meaning.
38. All of this, of course, emphasises that the primary role of the court is to focus
on how the ordinary reasonable reader would construe the words. And this highlights
the court’s duty to step aside from a lawyerly analysis and to inhabit the world of
the typical reader of a Facebook post. To fulfil that obligation, the court should be
particularly conscious of the context in which the statement was made, and it is to
that subject that I now turn.
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Context
39. The starting point is the sixth proposition in Jeynes – that the hypothetical
reader should be considered to be a person who would read the publication – and, I
would add, react to it in a way that reflected the circumstances in which it was made.
It has been suggested that the judgment in Jeynes failed to acknowledge the
importance of context – see Bukovsky v Crown Prosecution Service [2017] EWCA
Civ 1529; [2018] 4 WLR 13 where at para 13 Simon LJ said that the propositions
which were made in that case omitted “an important principle [namely] … the
context and circumstances of the publication …”.
40. It may be that the significance of context could have been made more
explicitly clear in Jeynes, but it is beyond question that this is a factor of considerable
importance. And that the way in which the words are presented is relevant to the
interpretation of their meaning – Waterson v Lloyd [2013] EWCA Civ 136; [2013]
EMLR 17, para 39.
41. The fact that this was a Facebook post is critical. The advent of the 21st
century has brought with it a new class of reader: the social media user. The judge
tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted
by a social media user must keep in mind the way in which such postings and tweets
are made and read.
42. In Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68, Warby J
at para 35 said this about tweets posted on Twitter:
“The most significant lessons to be drawn from the authorities
as applied to a case of this kind seem to be the rather obvious
ones, that this is a conversational medium; so it would be
wrong to engage in elaborate analysis of a 140 character tweet;
that an impressionistic approach is much more fitting and
appropriate to the medium; but that this impressionistic
approach must take account of the whole tweet and the context
in which the ordinary reasonable reader would read that tweet.
That context includes (a) matters of ordinary general
knowledge; and (b) matters that were put before that reader via
Twitter.”
43. I agree with that, particularly the observation that it is wrong to engage in
elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for
its theoretically or logically deducible meaning. The imperative is to ascertain how
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a typical (ie an ordinary reasonable) reader would interpret the message. That search
should reflect the circumstance that this is a casual medium; it is in the nature of
conversation rather than carefully chosen expression; and that it is pre-eminently
one in which the reader reads and passes on.
44. That essential message was repeated in Monir v Wood [2018] EWHC (QB)
3525 where at para 90, Nicklin J said, “Twitter is a fast moving medium. People will
tend to scroll through messages relatively quickly.” Facebook is similar. People
scroll through it quickly. They do not pause and reflect. They do not ponder on what
meaning the statement might possibly bear. Their reaction to the post is
impressionistic and fleeting. Some observations made by Nicklin J are telling.
Again, at para 90 he said:
“It is very important when assessing the meaning of a Tweet
not to be over-analytical. … Largely, the meaning that an
ordinary reasonable reader will receive from a Tweet is likely
to be more impressionistic than, say, from a newspaper article
which, simply in terms of the amount of time that it takes to
read, allows for at least some element of reflection and
consideration. The essential message that is being conveyed by
a Tweet is likely to be absorbed quickly by the reader.”
45. And Nicklin J made an equally important point at para 92 where he said
(about arguments made by the defendant as to meaning), “… these points only
emerge as a result of close analysis, or someone pointing them out. An ordinary
reasonable reader will not have someone by his/her side making points like this.”
46. A similar approach to that of Nicklin J had been taken by Eady J in dealing
with online bulletin boards in Smith v ADVFN plc [2008] EWHC 1797 (QB) where
he said (at paras 13 to 16):
“13. It is necessary to have well in mind the nature of bulletin
board communications, which are a relatively recent
development. This is central to a proper consideration of all the
matters now before the court.
14. … Particular characteristics which I should have in
mind are that they are read by relatively few people, most of
whom will share an interest in the subject-matter; they are
rather like contributions to a casual conversation (the analogy
sometimes being drawn with people chatting in a bar) which
Page 15
people simply note before moving on; they are often
uninhibited, casual and ill thought out; those who participate
know this and expect a certain amount of repartee or ‘give and
take’.

16. People do not often take a ‘thread’ and go through it as
a whole like a newspaper article. They tend to read the remarks,
make their own contributions if they feel inclined, and think no
more about it.”
Further discussion
47. It will be clear from what I have said already that, in my view, Mitting J fell
into legal error by relying upon the dictionary definition of the verb “to strangle” as
dictating the meaning of Mrs Stocker’s Facebook post, rather than as (as Sharp LJ
suggested) a check. In consequence, he failed to conduct a realistic exploration of
how the ordinary reader of the post would have understood it. Readers of Facebook
posts do not subject them to close analysis. They do not have someone by their side
pointing out the possible meanings that might, theoretically, be given to the post.
Anyone reading this post would not break it down in the way that Mitting J did by
saying, well, strangle means either killing someone by choking them to death or
grasping them by the throat and since Mrs Stocker is not dead, she must have meant
that her husband tried to kill her – no other meaning is conceivable.
48. In view of the judge’s error of law, his decision as to the meaning of the
Facebook post cannot stand, and this court must either determine the meaning for
itself, or if that is not possible, remit the case for a rehearing. It is entirely appropriate
in this case for us to take the former course, determining the meaning ourselves.
49. I return to the ordinary reader of the Facebook post. Such a reader does not
splice the post into separate clauses, much less isolate individual words and
contemplate their possible significance. Knowing that the author was alive, he or
she would unquestionably have interpreted the post as meaning that Mr Stocker had
grasped his wife by the throat and applied force to her neck rather than that he had
tried deliberately to kill her.
50. Ironically, perhaps, this conclusion is reinforced by the consideration that
only one meaning is to be attributed to the statement. Taking a broad, overarching
view, and keeping in mind that only one meaning could be chosen, the choice to be
Page 16
made between the meaning of the words being that Mr Stocker grasped his wife by
the neck or that he tried to kill her is, in my opinion, a clear one. If Mrs Stocker had
meant to convey that her husband had attempted to kill her, why would she not say
so explicitly? And, given that she made no such allegation, what would the ordinary
reasonable reader, the casual viewer of this Facebook post, think that it meant? In
my view, giving due consideration to the context in which the message was posted,
the interpretation that Mr Stocker had grasped his wife by the neck is the obvious,
indeed the inescapable, choice of meaning.
51. I emphasise again that it is a legal error on the part of the judge that has
opened the door to a redetermination of the meaning of Mrs Stocker’s words. This
is not a case of the appellate court giving precedence to its view of meaning over
that legitimately reached by the judge. To the contrary, it is the court’s recognition
that the meaning determined by the judge was reached via a route which was
impermissible and having then to confront the question what meaning should
properly be attributed to the relevant words. It is nevertheless appropriate to say
something generally about the role of the appellate court in appeals concerning the
meaning of avowedly defamatory words chosen by a trial judge.
The role of the appellate court
52. The question of when it was appropriate for an appellate court to substitute
its view for that of a trial judge on the meaning of a claimed defamatory statement
was addressed at some length in Bukovsky. At para 30 Simon LJ set out the
competing contentions of counsel as to how this issue should be approached:
“… [Counsel for the appellant] submitted that the relevant test
on an appeal on meaning was whether the decision of the lower
court was wrong: see CPR rule 52.11(3)(a), now CPR rule
52.21(3)(a). In contrast, [counsel for the respondent] submitted
that this court should only reject the meaning found by the
judge if it was ‘clear’ that some other meaning applied. A
passage in Duncan & Neill … at para 33.03 describes both
arguments in relation to the determination of meaning (a
different approach is adopted in a determination made under
paragraph 4 of CPR Practice Direction 53 that a statement is
capable or incapable of bearing a particular meaning). I have
added the letters A and B to para 33.03 so as to distinguish the
two approaches:
‘[A] A determination of the actual meaning of a
statement is a determination of fact that an appeal court
Page 17
is bound to overturn if the judge’s determination was
‘wrong’. Since determination of meaning is often based
on the consideration of a single document, an appellate
court, it might be said, is as well placed as the first
instance judge to decide the issue and should simply
substitute its own view if it disagrees with the judge.’
‘[B] On the other hand, it might be said, determination
of meaning is nevertheless an exercise that involves the
evaluation and weighing of various parts of a statement,
such that an appeal court should normally accord a
degree of deference to the first instance judge and
interfere only when ‘quite satisfied’ that a judge’s
determination of meaning was wrong and that some
other meaning clearly applied. It appears that this more
deferential approach is the one likely to be adopted.’”
53. At para 31, Simon LJ observed that proposition B had been supported by a
number of judgments of the Court of Appeal, including that of Sir Thomas Bingham
MR in Skuse v Granada Television Ltd [1996] MLR 278, 287, where he said:
“The Court of Appeal should be slow to differ from any
conclusion of fact reached by a trial judge. Plainly this principle
is less compelling where his conclusion is not based on his
assessment of the reliability of witnesses or on the substance of
their oral evidence and where the material before the appellate
court is exactly the same as was before him. But even so we
should not disturb his finding unless we are quite satisfied he
was wrong.” (Emphasis added)
54. As Simon LJ noted, however, when the Court of Appeal came to state its
conclusion in Skuse, it merely said that it was “satisfied” that the natural and
ordinary meaning which the judge gave to the material complained of was wrong.
The “satisfied/quite satisfied” dichotomy featured again in Cruddas v Calvert [2013]
EWCA Civ 748; [2014] EMLR 5, para 18 Longmore LJ summarised the claimant’s
argument thus:
“[Counsel for the claimants] relied heavily on a supposed
principle that the meaning of words was a jury question (and
thus a question of fact) and that the judge was the best person
qualified to reach the right conclusion which should not be
‘second guessed’ by this court.”
Page 18
55. He then referred to Skuse v Granada Television Ltd and to Cammish v Hughes
[2012] EWCA Civ 1655; [2013] EMLR 13, where Arden LJ had said at para 31:
“As to the test that this court should apply, although this court
has the same documents as were available to the judge, and the
meaning depends on documents, we apply the dictum of Sir
Thomas Bingham MR, [in Skuse]. The determination of
meaning does not depend solely on the documents, but on an
evaluation of those words in their context. In those
circumstances, we consider that we should not depart from the
judge’s meaning unless it is clear that some other meaning
applies.” (Emphasis added)
56. Longmore LJ in Cruddas acknowledged the force of the submission that the
Court of Appeal should not second guess the judge and said at para 19:
“19. There is, of course, considerable force in this argument.
On the other hand, imputations of criminal conduct are
extremely serious and, if an appellate court thinks that an article
just does not bear that imputation, it should say so. It is an
important aspect of the law of libel that it should be open to a
defendant to justify a lesser defamatory meaning than that
alleged by a claimant if that is the right meaning to be given to
the article.”
57. He concluded by saying that if, in order to come within Sir Thomas
Bingham’s eighth principle in the Skuse case, he had to, he would say that he was
not merely satisfied but “quite satisfied”. For my part, the difference in this context
between being satisfied and being quite satisfied, if it can be discerned at all, is so
ephemeral, so elusive a concept as to be of scant utility. Ultimately, the court in
Bukovsky elected to steer a middle course between what Simon LJ had described as
options A and B. At para 39, Simon LJ said:
“It seems to me that the better approach is for this court to adopt
a position somewhere between Duncan & Neill’s propositions
A and B. It should proceed cautiously before substituting its
own views on meaning and only do so when satisfied that the
judge is wrong, not least because meaning is very often a matter
of impression, because experienced defamation judges are well
practised at applying the relevant tests for determining meaning
and because it is plainly undesirable for the Court of Appeal to
Page 19
approach the issue on appeal simply on the basis that they
might have formed a different view from the judge.”
58. Of course, a reviewing court should be slow to disturb a finding of a trial
judge as to the meaning of a claimed defamatory statement. This is mainly because
it is a finding of fact, whereas the construction of a written contract is a question of
law. It is well settled, outside the field of defamation, that an appellate court will not
interfere with a finding of fact by a first instance judge merely because it takes a
different view of the matter. The degree of restraint which the appellate court will
exercise will depend upon whether the judge had the advantage of seeing and
hearing the witnesses, whether the finding is an inference based upon the review of
a large mass of primary factual material, and whether the finding is in the nature of
an evaluation involving mixed fact and law. The following passage from the
judgment of Lord Reed in McGraddie v McGraddie [2013] UKSC 58; [2013] 1
WLR 2477, paras 3-4 sufficiently covers the ground:
“3. The reasons justifying that approach are not limited to
the fact, emphasised in Clarke’s case and Thomas v Thomas,
that the trial judge is in a privileged position to assess the
credibility of witnesses’ evidence. Other relevant
considerations were explained by the United States Supreme
Court in Anderson v City of Bessemer (1985) 470 US 564, 574-
575:
‘The rationale for deference to the original finder of fact
is not limited to the superiority of the trial judge’s
position to make determinations of credibility. The trial
judge’s major role is the determination of fact, and with
experience in fulfilling that role comes expertise.
Duplication of the trial judge’s efforts in the court of
appeals would very likely contribute only negligibly to
the accuracy of fact determination at a huge cost in
diversion of judicial resources. In addition, the parties to
a case on appeal have already been forced to concentrate
their energies and resources on persuading the trial
judge that their account of the facts is the correct one;
requiring them to persuade three more judges at the
appellate level is requiring too much. As the court has
stated in a different context, the trial on the merits
should be ‘the ‘main event’ … rather than a ‘try-out on
the road’’ … For these reasons, review of factual
findings under the clearly erroneous standard – with its
deference to the trier of fact – is the rule, not the
exception.’
Page 20

4. Furthermore, as was stated in observations adopted by
the majority of the Canadian Supreme Court in Housen v
Nikolaisen [2002] 2 SCR 235, para 14:
‘The trial judge has sat through the entire case and his
ultimate judgment reflects this total familiarity with the
evidence. The insight gained by the trial judge who has
lived with the case for several days, weeks or even
months may be far deeper than that of the Court of
Appeal whose view of the case is much more limited
and narrow, often being shaped and distorted by the
various orders or rulings being challenged.’”
59. As to whether the appellate task needs to be described as one requiring
caution, as Simon LJ suggested, I am doubtful. I would prefer to say that it calls for
disciplined restraint. Certainly, the trial judge’s conclusion should not be lightly set
aside but if an appellate court considers that the meaning that he has given to the
statement was outside the range of reasonably available alternatives, it should not
be deterred from so saying by the use of epithets such as “plainly” or “quite”
satisfied. If it was vitiated by an error of law then the appellate court will have to
choose between remitting the matter or, more usually in this context, determining
the meaning afresh. But if the appellate court would just prefer a different meaning
within a reasonably available range, then it should not interfere.
60. This discussion is academic in the present case for I am of the view that
Mitting J’s use of the dictionary definitions to confine the possible meanings of the
Facebook post involved an error of law and, on that account the Court of Appeal
needed to approach the question of meaning afresh. Since it did not do so, that task
falls to this court, with the consequence which I have described.
Justification
61. In light of my conclusion as to the correct meaning to be given to the words,
“tried to strangle me”, section 5 of the Defamation Act 1952 must occupy centre
stage. It is beyond dispute that Mr Stocker grasped his wife by the throat so tightly
as to leave red marks on her neck visible to police officers two hours after the attack
on her took place. It is not disputed that he breached a non-molestation order. Nor
has it been asserted that he did not utter threats to Mrs Stocker. Many would consider
these to be sufficient to establish that he was a dangerous and disreputable man,
Page 21
which is the justification which Mrs Stocker sought to establish. Mitting J
considered that the meaning of the statement that the claimant was arrested on
numerous occasions, in the context of the other statements, was that he represented
a danger to any woman with whom he might live. I see no warrant for adding that
dimension to the actual words used by Mrs Stocker in her various Facebook
postings.
62. Even if all her allegations were considered not to have been established to the
letter, there is more than enough to satisfy the provision in section 5 of the 1952 Act
that her defence of justification should not fail by reason only that the truth of every
charge is not proved, having regard to the truth of what has been proved.
Conclusion
63. I would allow the appeal, and subject to any submissions which the parties
might wish to make, order that the costs of the appeal and the hearings before the
lower courts be borne by the respondent.