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A case of innuendo?

28 November 2012
At a preliminary hearing in the case of Fox v Boulter [2012] EWHC 3183, the High Court considered the difference between a claim for defamation based on the "natural meaning" that words will have to an ordinary and reasonable reader, and a claim based on an "innuendo meaning", which is only apparent to a reader who has knowledge of certain facts that are not generally known.

An action for defamation had been brought by Dr Liam Fox, an MP and former Secretary of State for Defence, against Mr Harvey Boulter, a Dubai-based businessman.  It related to an interview that Mr Boulter had given to Sky in which he had said that he intended to call both Dr Fox and his former aide, Mr Werritty, to give evidence in some separate legal proceedings relating to alleged blackmail by Mr Boulter so that they could "debunk these baseless allegations against me".  In particular, Mr Boulter said that Dr Fox and Mr Werritty:

have stated they will be willing to come forth and give evidence in the US. I hope when they get there they can put their hand on the bible and tell the truth – I suspect they will be forced to come if they do not do it willingly.

In this case, Tugendhat J was considering two preliminary matters.  The first was an application by the Defendant for a ruling, under paragraph 4.1(1) of CPR PD53, that the words complained of were not capable of bearing any defamatory meaning (the "Meaning Application"). The second was an application by the Claimant to amend his particulars of claim to include an action for an innuendo meaning (the "Amendment Application").

The Meaning Application

Tugendhat J found that, on the basis of their natural meaning, the words were capable of bearing a defamatory meaning. The words "[they] have stated they will be willing to come forth and give evidence in the US" were capable of being understood, in their context, as expressing scepticism that Dr Fox was willing to come forward even though he had said that he would, and are capable of meaning that Dr Fox had failed to clear Mr Boulter's name in circumstances where he was able to do so.  That was a meaning that imputed reprehensible conduct capable of being defamatory.

But Tugendhat J also found another reason to reject the application. It was a matter of dispute between the parties whether the detail surrounding the "baseless allegations" pleaded in Dr Fox's original particulars of claim amounted to extrinsic facts that were general knowledge, giving rise to a natural defamatory meaning, or whether, alternatively, they supported the innuendo meaning that the second application sought to introduce. That, he stated, was a matter of fact for the main trial and, until it was answered, he could not rule that the words complained of were incapable of having a defamatory meaning.

The Amendment Application

Dr Fox had made an application to amend his particulars of claim, in order to allow him to plead an innuendo meaning so that the words were defamatory of him even if the detail of the "baseless allegations" against Mr Boutler was not generally known.  However, this application was out of time, on the basis that the words complained of had been published on 7 November 2011, the hearing was on 8 November 2012, and defamation claims must be brought within one year of publication.

However, CPR 17.4(2), which embodies section 35 of the Limitation Act 1980, allows defamation claims to proceed out of time where "the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action".  In this case, Tugendhat J found that these conditions of CPR 17.4(2) were satisfied, and the application was allowed.

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