Case No: A2/2008/0520
Neutral Citation Number: [2008] EWCA Civ 1577
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION 
(HIS HONOUR JUDGE MACKIE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 4th December 2008

Before:

LORD JUSTICE SEDLEY
LORD JUSTICE KEENE
and
LADY JUSTICE SMITH  DBE
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Between:

	FREEGUARD & ANR	
Appellant	
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MARTLET HOMES LIMITED	

Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.
Mr M Slater (instructed by Messrs Devonshires) appeared on behalf of the Respondent.
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Judgment

Lord Justice Sedley:

1.	The appellant -- it is now Mr Freeguard alone -- was, with his wife (and as far as I know still is), a neighbour in Cambria Close of Mr and Mrs Keywell.  Their landlords were the defendants to this action, a non-profit company which was responsible for the upkeep of the communal gardens.  A dispute developed between the Freeguards and the Keywells about a series of issues including the use of this shared space.  It was not the first dispute between them but this one resulted in the leasehold and debt recovery co-ordinator of the defendant company, Ms Wright, writing to the claimant in the following terms in September 2003:
“Dear Mr Freeguard
Further to complaints received regarding the planting in the communal gardens at Cambria Close, we wish to emphasise that all the gardens including the patio area outside of your French windows are for the use of all the residents in the block and their guests.  This was previously stated in a letter to you dated 1st September 2004 from Martlet Homes Chief Executive, Martin Ward.  
We are now writing to tell you that Martlet Homes requires you to remove all trees and shrubs planted and re-turf the area, remove all plant pots and other planting around the patio within 28 days from the date of this letter, i.e. by Friday 14th October 2005.  If the garden is not cleared by this time, Martlet Homes will clear the ground and plant pots, turf the garden over and charge the cost of this work to you.
Yours Sincerely” 
2.	The letter was copied to Mr and Mrs Keywell by Martlet Homes with a covering compliment slip that read as follows:
“Enclosed is a copy of the letter sent to Mr Freeguard at the same time as this one.  Let me know if he is abusive etc to you.  Also if you can confirm that the work has been done, it will save us visiting the site.  I will organise work to be done after 14th October if necessary.”
3.	This slip and its contents came to Mr Freeguard’s notice in the course of disclosure in proceedings between Mr and Mrs Freeguard and Mr and Mrs Keywell.  The present claim accordingly included a claim for libel.  It came before HHJ Mackie QC as part of a larger case, with the remainder of which we are not now concerned.  Nobody appears to have taken the point, although HHJ Mackie drew attention to it in his judgment, that documents produced in the course of litigation cannot be sued on in defamation.  Even so, the judge struck out the libel claim as unsustainable.  
4.	Although Mr Freeguard has sought to raise a number of procedural issues, it is on this question alone that Hooper LJ has given permission to appeal, and it is accordingly on this question alone that Mr Freeguard today in a very courteous and helpful fashion has addressed us.  His pleading of the issue is short and sharp:
“22. The words complained of are defamatory of the First Claimant in their normal and ordinary meaning. 
23. Alternatively, the words complained of have an innuendo implying that the First Claimant is abusive and/or that his behaviour is anti-social.”
5.	The second of these paragraphs refers not to a legal innuendo, that is to say a meaning which will be attached to the words by readers who have some special knowledge, but to an implication in the words themselves.  The question is whether an ordinary reader of the words, who in practice would only have been Mr or Mrs Keywell, might read them in that sense and think the worse of Mr Freeguard in consequence.  
6.	It is necessary to say at once that, as between warring neighbours, there is an air of unreality about this submission.  But it is right that we should stand back, as Mr Freeguard invites us to do, and at least begin by considering the words of the compliments slip as they would be read and understood by an ordinary member of the public.  That is how the judge approached them.  He did so in the light of Eady J’s well known guidance, which I quote from paragraph 16 of the judgment:
“The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary reasonable reader, reading the article once.  Hypothetical readers should not be treated as either naïve or unduly suspicious.  They should be treated as being capable of reading between the lines engaging in some loose thinking, and not been avid for scandal.  The court should avoid an over elaborate analysis of the article because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts.  Judges should have regard to the impression the article has made upon them themselves in considering what … impact it will have made [on] the hypothetical reasonable reader.  The court should certainly not take a too literal approach to its task.”
The judge concluded at paragraph 17:
“In my judgment there is no realistic prospect of this set of words, “let me know if he is abusive etc, to you”, being capable of being defamatory when one looks as one must at the entire context in which the words were used.  This is a company which although seriously criticised by the claimant is responding to complaints made by one tenant about another.  It seems to me that the ordinary and natural meaning in the context is that if one tenant is being abusive to the other than that other should let the company know.  It doesn’t seem to me that the word “et cetera” carries things further except in indicating that as well as abusive conduct perhaps the tenant should be drawing attention to any other conduct to which he objects.  It does not seem to me, bearing in mind the position of the company, that those words are pregnant with the suggestion that one tenant is more likely to be right … Bearing in mind the context and the words used it seems to me that there is no prospect whatsoever of this matter proceeding on the basis of those words being held to be defamatory…”
7.	Mr Freeguard now appeals on the ground that, contrary to what the judge thought, it is by no means certain that a jury properly directed would take this view.  They might perfectly legitimately consider, he says, that Ms Wright’s remark had diminished him in the eyes of a reasonable and right-thinking reader.  
8.	Mr Freeguard today draws attention to paragraph 3.16 of the 10th edition of Gatley.  This cites the words of Lord Reid in Lewis v The Daily Telegraph [1964] AC 234 at 258 to the effect that the sting may not be so much in the words themselves as in what the ordinary man will infer from them and that that is in consequence regarded as part of the natural and ordinary meaning.  The inference, Mr Freeguard submits here, would be that he is a naturally abusive individual.  Why else, he says, would Ms Wright put a note like this in front of his neighbour?  He adds to this, as Eady J reminded us, that the ordinary reader is not necessarily too scrupulous about sifting out wheat from chaff in what he or she reads.  
9.	Mr Freeguard also contends before us today that the judge in paragraph 17, which I have read out, is qualifying meaning by context.  It is true that context is very frequently relevant to qualified privilege, but it cannot be wholly overlooked in relation to meaning.  Indeed for a claimant, particularly when he is relying upon an innuendo or an inference, it is often the very thing that determines meaning.  And so here, in my judgment, as in HHJ Mackie’s, the word “abusive” has to be read as what it is, part of a response to a complaining neighbour from a lessor company which simply wants to see the peace kept.  It does not accuse the claimant of being an abusive person.  It simply asks Mr Keywell to let the company know if, as Mr Keywell has already suggested to them has been happening, the claimant should be rude to him over the prospective clearing of the communal garden.  
10.	That, it seems to me, is not defamatory by any of the tests advanced by Mr Freeguard in reliance upon Gatley.  It seems to me, as it seemed to the judge, that no jury with its feet on the ground and its head in the real world could sensibly regard this handwritten compliment slip as containing more than an offer to step in if the neighbour with whom the recipient of the slip was in dispute were to become abusive or otherwise difficult.  It does not say, and it does not suggest, that this is likely to happen.  It does not say or suggest that Mr Freeguard is a naturally abusive individual.
11.	For these reasons it seems to me that, attractively though Mr Freeguard has put his case, the judge was right to take the view that there was no prospect of it succeeding at trial and to strike this element of the claim out as he did, pursuant to his power under the Civil Procedure Rules and section 8 of the Defamation Act.  
12.	For my part I would therefore dismiss this appeal.
Lord Justice Keene:  
13.	I agree, but I do wish to emphasise one particular point.  It is well established as a matter of law that the words complained of have to be read in context and on the basis of facts as known to the person or persons to whom the words were published.  Sometimes that means, as my Lord has pointed out, that words which would not otherwise have been defamatory become so because of such facts; see for example Cassidy v Daily Mirror [1929] 2KB 331 and Hough v London Express Newspapers [1940] 2KB 507.  But sometimes this principle works the other way round, as Gatley recognises at paragraph 3.21.  Here the words in question were published only to Mr and Mrs Keywell, there being no allegation in the particulars of claim of publication to anyone else.  Mr and Mrs Keywell, according to the evidence, had already complained to Martlet Homes that Mr Freeguard had been “less than civil” to them.  
14.	In my judgment the recipients of this compliments slip on which the words were written -- that is to say, Mr and Mrs Keywell -- would have known that the words were simply a reference to their own earlier complaint.  The judge was right to find that the words were in this context not capable of bearing a defamatory meaning.  
15.	For that reason, as well as for those which my lord has set out, I too would dismiss this appeal.
Lady Justice Smith:  
16.	I agree with both judgments.

Order: Application refused