On 21 June 2012, a number of articles (the “Articles”) were published in The Times that were critical of the use of film investment schemes as a means of avoiding tax. The Articles named Patrick McKenna as one of the two main providers of these schemes, and identified his professional association with a number of celebrities. At three places in the Articles (the “References”), Patrick McKenna was referred to as having previously been the accountant of Sir Elton John. In fact, he had never worked for Sir Elton John, and on the following day The Times published a correction to that effect.
Sir Elton John brought a claim for libel against Times Newspapers Limited (“TNL”), on the basis that the References meant, and were understood to mean, that (1) the Claimant had engaged in, or (2) was reasonably suspected of having or being engaged in, immoral tax avoidance, or, at least, (3) there were grounds to investigate whether he had done or was doing so.
In response, TNL applied to the High Court for a ruling pursuant to paragraph 4.1(1) of CPR PD53 that the References complained of were not capable of having any of the meanings (1) to (3) complained of. In particular, TNL pointed out that, in the context of the Articles as a whole, the References were fleeting, that each Reference made it clear that Sir Elton John’s association with Patrick McKenna was in the past and that, where the Articles made an express imputation of participation in tax avoidance, as they did for a number of named individuals, that allegation was clear.
In determining TNL’s application, Tugendhat J applied the guidance given in Skuse v Granada Television  EMLR 278, as summarised in Jeynes v New Magazines Limited  EWCA Civ 130. The critical question was the range of meanings that the References were capable of having to a hypothetical reasonable reader, and this hypothetical reader was taken to be representative not of readers in society at large, but of readers of the particular publication in question. Tugendhat J, while also noting that recent case law had given ordinary citizens a more discriminating judgment than had been traditional, stated that a representative reader of The Times was “amongst the more highly educated and better informed members of the public“.
Accordingly, Tugendhat J determined, in relation to meanings (1) and (2) above, that there was no possible basis for argument that the References could be interpreted as meaning that the Sir Elton John had been, or was reasonably suspected of having been, engaged in immoral tax avoidance. But, furthermore, in relation to meaning (3) above, a hypothetical reader who inferred that the Articles were capable of meaning, or being understood to mean, that there were grounds to investigate whether Sir Elton John had been engaged in immoral tax avoidance was not within the definition of the reasonable reader that a jury could apply without perversity. Accordingly, he ruled that the References were not capable of bearing the meanings attributed to them by Sir Elton John, or indeed any other meaning defamatory of him.