Case No: A2/2010/1868
Neutral Citation Number: [2010] EWCA Civ 1212
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE TUGENDHAT)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 8th October 2010

Before:

LORD JUSTICE LAWS
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Between:

	Makin	
Appellant/ Defendant	
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Cambridge	

Respondent/Claimant	

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(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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Mr Hugh Tomlinson QC and Mr David Hirst (instructed by Collyer Bristow LLP) appeared on behalf of the Appellant.

The Respondent did not appear and was not represented.

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Judgment

Lord Justice Laws:

1.	This is a renewed application for permission to appeal against the decision of Tugendhat J given on 12 July 2010, to the effect that the words complained of in this action for damages for libel bear a particular defamatory meaning.  

2.	Rimer LJ refused permission to appeal on consideration of the papers on 10 September 2010.  The background facts are described by the judge below at paragraphs 2 to 5 of his judgment.  I see no point in setting them out in different words.  The judge said: 

“2. The parties can be adequately described by taking the description from the Particulars of Claim. The claimant is a public service interpreter. Until 21 July 2007 she was a member of the board of directors of the National Register of Public Service Interpreters Limited (NRPSI). That is not for profit subsidiary of the Chartered Institute of Linguistics (CIOL). The claimant’s position was a voluntary one.

3.  The register kept by the company, NRPSI, is a list of professional interpreters who have satisfied certain criteria in regard to their qualifications and experience. Public service interpreters are those who work in public services such as the legal professional, health services and so on. The list kept by the NRPSI enables such organisations to find and employ suitably qualified service interpreters.

4. The defendant, now the sole defendant, is also a public interpreter. His name is on the register. He is a member of the Interpreters and Translators Branch of the GMB union and he is a member of the ITB committee.

5. From June 2005 until 2007, the defendant and the union were, in the claimant’s words, ‘Conducting a campaign against her’. Their complaint was that she and another director of NRPSI were responsible when the NRPSI passed data relating to the interpreters on the list to the Cambridge Interpreting and Translation Service (CINTRA).” 

3.	A motion of no confidence in the respondent/claimant and two other directors of NRPSI was moved at the Annual General Meeting on 19 May 2007.  The motion was not carried but in the weeks before 19 May the appellant/defendant sent a number of emails to some 925 individuals.  One of them, dated 7 May 2007, contained the words complained of in the action: 

“The [sated] subject is: ‘Private interests of MRPSI directors and adequacy of corrective measures’. The email bears the logo of the union and under that title: ‘The Interpreters and Translators Branch.’ It then reads as follows:

‘Dear Colleagues We have had an overwhelming response to our correspondence and need to clarify two extremely important issues:

1.	The private interests of NRPSI directors in selling our data to commercial intermediaries and the breach of the Data Protection Act 1998
Two NRPSI Board Directors, Nicola Glegg and Janet Cambridge, had interests CINTRA Ltd, an agency which obtained our data contrary to the DPA 1998 Nicola Glegg was the CEO of CINTRA and Janet
Cambridge worked as a trainer for CINTRA at the time our data were sold. There is evidence in the Coventry
Partnership Project, the Lincolnshire Business Case Study, the East Midlands Delivery Plan and CINTRA’S
Training Manual from 2005 that CINTRA used its connections with CIOL and NRPSI, through the tow directors, to obtain a contract with five East Midlands’ constabularies and Norfolk. CINTRA has created a monopoly in East Midlands and Norfolk and slashed interpreters’ fees by about 60%. We cannot compete against CINTRA. We can either work through them for their rates or not at all.

2.	Adequacy of the corrective measures taken by the NRPSI
The remedial action taken by NRPSI came too late because CINTRA already had the contact. Following the ICD’s ruling, we asked John Hammond on many occasions to terminate the licence with CINTRA. He has refused to do so even though he admits in his letter to the MCILs that terminating the licence would frustrate the East Midlands contract.
We hold that John Hammond’s explanation is incomplete, inaccurate and misleading. We can provide you with concrete documentary evidence which shows the link between NRPSI Board Directors, Nicola Klegg and Janet Cambridge with CINTRA should you request it. We ask you to consider all the evidence before making a decision which will have an impact on our profession and livelihoods in the future. Please take these points into consideration, visit the site of the ITB of the GMB [and then it gives the references]”

4.	In the amended particulars of claim at paragraph 16 the respondent pleads the following meaning: 

"The above words complained of meant and were understood to mean that the Claimant had improperly personally benefited from her position on the NRPSI Board of Directions and had thereby abused her office."

5.	The defence advanced what is called a Lucas-Box meaning, which it sought to justify.  It also pleaded qualified privilege.  The claim had originally impleaded other emails also, but was discontinued in relation to those.  On 14 June 2010 it was ordered that the trial of the single remaining complaint should be by judge alone.  On 1 July 2010 the appellant/defendant applied for a ruling that the words complained of were not capable of bearing the meaning pleaded by the respondent, nor any meaning which was defamatory of her; and so the matter went before Tugendhat J on 12 July 2010.  The parties agreed, as I understand it, that if the judge accepted that the words did not bear the meaning pleaded by the respondent but rejected the appellant's submission that they did not defame the respondent at all, then he should rule what was the defamatory meaning of the words.

6.	The judge at paragraph 23 of his judgment set out the well known summary of the legal principles governing meaning which was given by the Master of the Rolls in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paragraph 14.  

7.	The judge ruled that, whether read alone or in the context of the other emails, the words complained of bore the following meaning (paragraph 31 of the judgment): 

"The claimant used her position as a director of NRPSI to advance the private interests that she had in CINTRA in that she allowed CINTRA to use herself to procure that NRPSI sold data to CINTRA in order to assist CINTRA in obtaining contracts with various constabularies."

8.	The appellant says that the judge's meaning is confusing, unclear and in any event not defamatory.  The submission is that it fails to take account of the context created by the other emails.  The appellant's essential case, as recorded by the judge at paragraph 14, is that, read in context, the words do no more than allege that the respondent was at the material time in a position where her duties to NRPSI conflicted with her interests in CINTRA, and that of itself is not a defamatory assertion.  

9.	Refusing permission to appeal, Rimer LJ said: 

"The meaning found by the judge appears to me to be one that he was justified in finding and it is also a meaning that I would regard as defamatory. The applicant's skeleton argument (which appears to ignore the important words in the first numbered paragraph in the email) does not persuade me that the contrary is seriously arguable."

With great respect, the question for this court is not whether the judge was justified in finding as he did, but whether he was right or not (see BCA v Singh [2010] EWCA Civ 350).  

10.	I consider that the meaning found by the judge is arguably over-elaborate and unclear.  The principles recapitulated in the Jeynes case warn against over-elaborate analysis.  There is force in the appellant's submission at paragraph 16(i) and 18(ii) of counsel's skeleton to the effect that the judge's construction is "a natural blend of the active and the passive".  If he is to justify the appellant will: 

"need to show that passive acquiescence by the claimant in the face of CINTRA amounted to an active advancing of her own interests."

As counsel submits, the question “what facts would demonstrate such a state of affairs?” looks to be problematic.

11.	The appellant in fact says that the judge's meaning is not defamatory at all, but in that case there would of course be nothing left in the action.  It seems to me that the position is not satisfactory.  There are difficulties ahead in contesting and trying out this action if the question of meaning is not revisited.  In all these circumstances it seems to me that the appellant should have permission to appeal which accordingly I grant.

Order:  Application granted