03/02/2020 Donovan v Gibbons [2014] EWHC 3406 (QB) (21 October 2014) 2. The upshot was that in February 2013 Mrs Gibbons arranged for her son or husband to upload onto YouTube two videos, entitled Pharma Polo and Pharma Polo 1. They showed a polo pony bucking while being lunged. There would have been no problem with that. But as the videos played, a caption was shown with the words 'Pharmapoloponies.com Louisa Donovan sold this polo pony as being suitable for children. Downright dangerous and a scandal they get away with this'. Later, a third video was uploaded in June of the same year, with the same footage as Pharma Polo and the same caption. They remained accessible until around the end of February 2014. 3. Mrs Donovan says that the videos are defamatory of her. She has sued in libel. Mrs Gibbons says that they are honest comment. Because the videos were available both before and after 1 January 2014, she also says that they are honest opinion under the Defamation Act 2013. 4. That duplication arises because the Act creates a new statutory defence of honest opinion, replacing the common law defence of honest comment or, as it was always known, fair comment. By s16(5), nothing in s3 has effect if the cause of action accrued before the commencement of s3, which was on 1 January 2014. So the common law defence applies for publication up to the end of 2013; and the statutory defence thereafter. Similarly, while there was a common law threshold of seriousness which had to be surmounted before words could be held to be defamatory (see eg Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985), the new Act has, by s.1(1), introduced a statutory threshold of serious harm to reputation which any statement published on or after 1 January 2014 must surmount before it can be held to be defamatory. In any case where the publication complained of began in 2013 and continues into 2014, the court is likely to have to consider the position both at common law and under statute. 5. By consent of both parties, Master Eastman ordered on 28 July 2014 that a judge should determine the actual meaning of the words and pictures complained of, and whether they are allegations of fact or expressions of opinion or comment. Depending on the outcome of that determination, the claimant also asks me to strike out certain paragraphs of the defence of honest comment or opinion. 6. However, it appears that a further question has to be decided, namely whether the words and video complained of are defamatory of the claimant at all. Mr Jacob Dean, for the claimant, told me that until he saw the skeleton argument of Ms Victoria Jolliffe, for the defendant, he had not appreciated that there was any issue as to whether the material complained of was defamatory. That was because it was not denied in the Defence. Ms Jolliffe said that was because paragraph 4 of the Particulars of Claim, which set out the material complained of, does not contend that the material is defamatory. That is true, but the meaning paragraph, paragraph 9, does plead that the meaning relied on is a defamatory one. So one would have expected a denial. Instead, the Defence simply denies that the words and images bore that meaning, not that they were not defamatory. And there was no application by the defendant for the point to be determined. In those circumstances, Mr Dean was entitled to be a little surprised that the issue was live. He was content nonetheless to deal with it, but when I asked him whether he would be addressing me on serious harm in respect of publication continuing into 2014, he said that was a matter on which he would want to be able to put in evidence, as of course he would be entitled to do, although it will not by any means always be necessary (see eg Cooke v MGN [2014] EWHC 2831 (QB) at [43]). Ms Jolliffe, somewhat ungenerously in the circumstances, said that she would want the court to determine the issue of serious harm. It seems to me that it would be quite wrong for me not to allow Mr Dean time to put in evidence on the issue of serious harm, even though it would be limited to publication which continued into 2014. I shall therefore 'park' that issue, as Mr Dean put it, and confine myself to considering the question of whether or not the words are defamatory by reference to the common law. 7. Both counsel submit that this is one of those cases where it is best to determine the issue of fact or comment before the issue of meaning. They rely on the observation of the Lord Chief Justice in British Chiropractic Association v Singh [2011] 1 WLR 133 at [32] to the effect that the answer to the question of meaning may stifle the answer to the question of comment or no comment. I think that in truth the three questions (meaning, fact/comment and whether defamatory) are very closely bound up together, and in this case I doubt that it matters very much in which order they are considered, as long as I bear in mind the impact that a decision on one may have on another. I shall follow the order which Mr Dean used in his submissions. www.bailii.org/ew/cases/EWHC/QB/2014/3406.html 2/6