03/02/2020 Donovan v Gibbons [2014] EWHC 3406 (QB) (21 October 2014) 26. In this case, the dangerousness of the pony is clear from the videos, which show the animal bucking and rearing. That is a given. Coupled with the first sentence of the words complained of, that tells the viewer that the claimant sold a dangerous polo pony as being suitable for children. As I have said already, I have no difficulty in characterising that allegation as an allegation of fact. 27. Do the videos and text go further, and impute knowledge to the claimant that the pony was dangerous and unsuitable at the point of sale? In my judgment they do. As Mr Dean submits, there is no suggestion in the videos that the behaviour shown was anything other than the characteristic behaviour of the pony. It could easily have been made clear that the animal had appeared to be well behaved when inspected, and that the defendant's son had been able to ride it without difficulty; but no attempt to explain that was made. The obvious conclusion is that the behaviour shown was characteristic of the animal. If it was characteristic, then the seller would have been aware of it. By contrast, Ms Jolliffe's kettle example would raise no equivalent imputation of awareness on the seller's part, because there would be no reason to suppose that the problems would have existed at the time of sale and been known to the seller. Mechanical and electrical faults may develop at any time; whereas the character of an animal tends to be settled. Moreover, I agree with Mr Dean that the use of the word 'scandal' tends, if anything, to reinforce the conclusion that the seller must have known at the time of sale that the pony was dangerous and unsuitable for children. 28. That being so, in my view the ordinary reasonable person watching the video will have concluded that the claimant had sold the defendant a dangerous pony as being suitable for children, even though she must have known that it was in fact wholly unsuitable for them. That conduct would plainly entail a reckless preparedness to put the children at risk. I regard the adverb 'callously' as pleader's rhetoric, but that apart, I find that the true meaning of the material is that pleaded by the claimant. In that meaning, it is of course unarguably defamatory of the claimant in a personal, as well as a business, sense. 29. Again, I stress that I am not deciding the s.1 'serious harm' issue which applies to publication in 2014. 30. I should mention Ms Jolliffe's submission that if it is right that the words bear a meaning which carries a statement about the claimant's state of mind, then that meaning can only arise as an inferential deduction or conclusion, and is therefore properly characterised as comment. She argues that the court should be very slow to deprive the defendant of a comment defence by deriving a factual assertion about the state of mind of a trader from criticism of their product or service by a consumer. That last point, so far as it takes her, is no doubt right, but I do not accept her submission that the imputation of the claimant's knowledge is an inferential deduction which should be characterised as comment. It is not, as she herself accepted in argument, an expression of opinion by the defendant: it is part of the intrinsic meaning of the material. In fact, Ms Jolliffe submitted that it would be an opinion formed by the reader. That, on analysis, is surely no more than a concession that the material complained of would have been understood in the sense which I have found it to bear. Application to strike out 31. In the light of my conclusions, it is not necessary for me to go on to consider Mr Dean's application to strike out paragraphs 9.2(4) and 9.20-9.29, and paragraph 9.16, of the plea of comment. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: http://www.bailii.org/ew/cases/EWHC/QB/2014/3406.html www.bailii.org/ew/cases/EWHC/QB/2014/3406.html 6/6