Helena Shipman writes an analysis for Inforrm’ on a judgment handed down on 27 June 2023 ( EWCA Civ 884). The Court of Appeal upheld an appeal by Dyson Technology Limited and Dyson Limited (“the Appellants”) against the decision of Nicklin J on 31 October 2022 ( EWHC 2718 (KB)) that based solely on intrinsic evidence, they were not referred to in the Channel 4 broadcast that was the subject of their libel claim. The appeal raised the issue as to the test which the court should apply to decide whether an defamatory statement has referred to a person, so that they have the right to sue.
The claim concerns a broadcast by Channel 4 which included allegations of appalling abuse and exploitation in factories in Malaysia run by a company called ATA, where Dyson’s cordless vacuums and other appliances were made, and criticism of the way in which Dyson had dealt with the matter. The broadcast referred to Dyson as “one of Britain’s most iconic companies” and “a flagship company in Britain”. A transcript of the full broadcast is annexed to the judgment of Nicklin J.
The claim was brought by Sir James Dyson, and the Appellants, which are British Dyson companies. Paragraph 2 of the Particulars of Claim gives brief details of the Appellants as follows:
“The Second Claimant is the UK-based company within the Dyson group that holds Dyson’s intellectual property, technology and brand rights. The Second Claimant employs a number of Dyson’s executive team and retains advisors to protect the reputation of Dyson. The Third Claimant is Dyson’s UK trading company”.
No reference innuendo was pleaded; it was averred that the words complained of would be understood by an ordinary reasonable viewer of the Broadcast to refer to the Appellants as prominent Dyson companies.
The Preliminary Issues
The parties agreed that there should be a trial of two preliminary issues: the natural and ordinary meaning of the broadcast; and whether that meaning was defamatory at common law. However, following intervention from Nicklin J, two further issues were ordered to be tried, namely: “whether the publication complained of … in its natural and ordinary meaning referred to the Second and Third Claimants”; and whether the publication complained of was or included statements of fact or opinion.
The Claimants subsequently amended the Particulars of Claim to include a reference innuendo as an alternate basis for establishing reference. However, it was decided that it was not appropriate to for the Court to determine the reference innuendo as a preliminary issue on the basis that it might have required the calling of evidence.
The Decision Subject of the Appeal
At the trial of preliminary issues it was common ground that the Channel 4 broadcast referred to Sir James Dyson, but the judge held that it conveyed no defamatory meaning about him. Sir James Dyson’s personal claim was therefore dismissed and permission to appeal was refused.
When considering the issue of reference in respect of the Appellants, the Judge set out two categories through which reference can be established:
- If the claimant is named or identified by identifying material contained in the words complained of themselves (which the judge referred to as “intrinsic identification).
- If the claimant is identified or referred to by particular facts known to individuals (which the judge referred to as “extrinsic identification or ‘reference innuendo’).
The Judge also referred to a third “potential intermediate category” which included class libels, where the publication identified the target but did not name the claimant. In the Judge’s view, this type of case would be considered an intrinsic reference case.
The Judge held that, without consideration of extrinsic evidence, the allegations in the broadcast were not and would not reasonably be understood to be directed at the entire Dyson group. The judge further held that the ordinary viewer would identify two candidates as the subject of the broadcast so far as concerns Dyson: the corporate entity that was trading with ATA and whichever company was responsible for the PR operation. The Judge recorded that if the Appellants were not either of the two corporate entities (i.e. not the “target” of the allegations), then they would fail to establish reference and would have no claim.
On the basis that the Appellants had failed to prove intrinsic identification, the Judge held that the rest of the preliminary issues fell away and did not call for decision. The Judge further held that the particulars of reference pleaded in support of the reference innuendo, even if assumed proved, would not support a case of reference that had a realistic prospect of success.
Grounds of Appeal
The Appellants were granted permission to appeal on the following grounds:
- the Judge applied the wrong test to the question of whether the words complained of referred to the Appellants. The Judge had proceeded on the basis that the case fell into a previously unrecognised “intermediate category” of cases which depended on whether these were the “target” of the allegations; and
- in any event, the Judge was wrong as to who were the subjects of the broadcast. The Judge’s conclusion resulted from an over-elaborate analysis of the broadcast and was also inconsistent with what the broadcast itself said.
Court of Appeal’s Decision
The Court of Appeal found that the Judge had erred in his approach to the issue of identification or reference. The Judge had proceeded on the basis that identification had to come from within the broadcast itself or from some extrinsic fact pleaded by way of “innuendo”, and had concluded that in the absence of a name – meaning a full and precise corporate name which functioned as a unique identifier – the claimants could not show that they were the subjects of the allegations in the broadcast for the purpose of what the Judge termed intrinsic reference.
The Court of Appeal found that the Judge should have instead reviewed the broadcast in the light of the knowledge of the claimant companies which a hypothetical viewer acquainted with those companies would possess (adopting the test derived from Knupffer v London Express Newspaper Ltd  AC 116). In this case, the hypothetical viewer acquainted with the Appellants would know the matters set out in paragraph 2 of the Particulars of Claim.
The Judge had also erred in his conclusion that this was a case of intrinsic reference where only a general group of Dyson companies had been identified. The hypothetical viewer would also have paid attention to the words used in the broadcast referring to an “iconic British company”. There was no reason for the hypothetical viewer to think that the corporate failings described in the programme were the responsibility of some Dyson group company other than the “British” company to which frequent reference was made.
Although the Judge had made no finding on meaning (having determined that the issue fell away once he had resolved the issue of reference in the Defendants’ favour), the Court of Appeal said that it was likely to be along the lines that “Dyson was a leading British company which sold products manufactured by ATA in Malaysia whose employees suffered abuse and inhuman working conditions and Dyson should have known what was happening and stopped it”, and arguably also that “Dyson tried to cover the matter up and shut down criticism”.
The Court of Appeal therefore allowed the appeal and concluded that a hypothetical reasonable viewer, acquainted with the Appellants and therefore knowing the matters set out in paragraph 2 of the Particulars of Claim, would identify the Appellants as being referred to in the broadcast.
The Court of Appeal’s decision provides detailed guidance on how the cases on reference should be prepared and litigated. In particular:
- The question of whether the requirement of reference has been met is both objective and abstract.
- The court is not engaged in an investigation of what actual viewers subjectively knew about the claimant or who they took the statement to be about. This exercise may however be relevant and potentially important to the issue of serious harm under section 1 of the Defamation Act 2013.
- In cases where the requirement of identification or reference is not obviously met, the Court may need to resolve the issue. The right way to do that is to consider the nature and content of the statement complained of and the attributes of the claimant which would be known to the hypothetical acquaintance. If the Claimant has also pleaded a reference innuendo that will need to be determined.
- Where there is room for doubt or dispute about whether the claimant has been identified or referred to without reliance on the reader or viewer acquainted with the claimant, it becomes necessary to consider what attributes of the claimant the hypothetical viewer, acquainted with the claimant, would be deemed to know.
- The hypothetical reader or viewer is not to be considered omniscient, or to know full details about the claimant. The onus must of course lie on the claimant to identify those attributes. The starting point must be to plead the case. This is normally done by way of the introductory averments in the Particulars of Claim, as it was in this case.
- If the defendant disputes the pleaded case on that issue or considers it to be inaccurate, incomplete, insufficient or excessive, that issue can be raised and litigated, but the Court of Appeal doubts this will often be necessary.
- There could be advantages of pleading a case of identification in the alternative, setting out in a reference innuendo those facts which a claimant contends would be known to a reasonable reader acquainted with the claimant and would cause the reasonable reader to identify the claimant as the subject of the relevant article or broadcast.
On the question of hearing preliminary issues on identification or reference in principle, the Court of Appeal concurred with Nicklin J that caution should be exercised before proceeding down this path, and that generally speaking such an approach is considered undesirable where (for example) it would leave issues such as meaning at large.
The Court of Appeal understood why the Judge was attempting to modernise the terminology in this area of the law. However, they considered that the labels “intrinsic” and “extrinsic” are unhelpful because they cut across the well-established test for identification of or reference to the claimant by a person acquainted with the claimant, and ran the risk of, as Lord Atkin termed it in Knupffer, “over-elaborating the law of libel”.