Stocker (Appellant) v Stocker (Respondent)

Cite as:[2019] UKSC 17
Hand-down Date:April 03, 2019
 
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Hilary Term [2019] UKSC 17 On appeal from: [2018] EWCA Civ 170

JUDGMENT

Stocker (Appellant) v Stocker (Respondent) before

Lord Reed, Deputy President Lord Kerr

Lady Black

Lord Briggs

Lord Kitchin JUDGMENT GIVEN ON 3 April 2019 Heard on 24 January 2019 Appellant Respondent David Price QC

Manuel Barca QC Claire Overman (Instructed by SA Law LLP) Jonathan Price

(Instructed by David Price Solicitor Advocate)

LORD KERR: (with whom Lord Reed, Lady Black, Lord Briggs and Lord Kitchin agree)

  1. "He tried to strangle me." What would those words convey to the "ordinary reasonable reader" of a Facebook post?

    Background

  2. The respondent to this appeal, Ronald Stocker, is the former husband of the appellant, Nicola Stocker. Their marriage ended in acrimony in 2012. Mr Stocker subsequently formed a relationship with Ms Deborah Bligh. On 23 December 2012 an exchange took place between Mrs Stocker and Ms Bligh on the Facebook website. In the course of that exchange, Mrs Stocker informed Ms Bligh that her former husband (now Ms Bligh's partner) had tried to strangle her. It is now clear that the date on which this is alleged to have occurred is 23 March 2003.

  3. Mrs Stocker also said that her husband had been removed from the house following a number of threats that he had made; that there were some "gun issues"; and that the police felt that he had broken the terms of a non-molestation order. These statements and the allegation that Mr Stocker had tried to strangle her were the basis on which he took proceedings against her for defamation.

  4. The allegations about threats, gun issues and the breach of a non-molestation order are relevant to provide context to the statement that Mr Stocker had tried to strangle Mrs Stocker. They paint a picture of acute marital conflict and on that account set the scene for any reader of the Facebook post. That reader would know that Mrs Stocker's statement that her former husband had tried to strangle her was made against the background that this had been, towards the end of its life, a most disharmonious marriage.

    The proceedings in the High Court

  5. Mr Stocker issued proceedings against his former wife, claiming that the statement that he had tried to strangle her was defamatory of him. He claimed that the meaning to be given to the words "tried to strangle me" was that he had tried to kill her. Mrs Stocker denied that the words bore that meaning. She claimed that, in the context of domestic violence, the words do not impute an intention to kill. What

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    they would be understood to mean, she said, was that her husband had violently gripped her neck, inhibiting her breathing so as to put her in fear of being killed.

  6. Mr Stocker also claimed that the statement that he had uttered threats and breached a non-molestation order was defamatory and was to be taken as implying that he was a dangerous and thoroughly disreputable man. Mrs Stocker refuted this. She said that it was not reasonable to infer that she had suggested that her husband was dangerous on account of his having been arrested a number of times. It is to be observed, however, that in the defence filed on her behalf, Mrs Stocker averred that the statement that her husband was dangerous and disreputable was justified. It seems likely that this was by way of alternative plea. In any event, for reasons that will later appear, this is immaterial because of the rule concerning the substantial truth of the statements made by the alleged defamer.

  7. At the start of the defamation proceedings, Mitting J, the trial judge, suggested that the parties should refer to the Oxford English Dictionary's definition of the verb, "strangle". This provided two possible meanings: (a) to kill by external compression of the throat; and (b) to constrict the neck or throat painfully. The judge was asked by counsel for the appellant, Mr Price QC, to consider how the words, "tried to strangle" had been used in different contexts. Mr Price also sought to introduce legal definitions of the word "strangle". These do not appear to have been taken into account by Mitting J and he did not refer to them in his judgment.

  8. Mr Stocker gave evidence that, on the occasion when the altercation which led to his wife accusing him of trying to strangle her took place, he had been standing on a stool or a chair while she was adjusting the length of a pair of his trousers. She had pricked him with a pin. He had sworn at her. She swore back at him and he placed his hand over her mouth to prevent her raised voice from waking their sleeping son. The judge rejected this account, saying, at para 43:

    "I do not accept [Mr Stocker's] account that he merely put one hand over [Mrs Stocker's] mouth while he was standing on the stool or chair. His hand would have been at his thigh level. He could not have exerted more than momentary pressure on her mouth, from which she could instantly have escaped. Nor could he have left the reddening marks on her neck or throat which I am satisfied were seen by the police. I do not, however, believe that he threatened to kill her or did anything with his hands with that intention. I do not believe that he was capable even in temper of attempted murder. The most likely explanation about what happened is that he did in temper attempt to silence her forcibly by placing one hand on her mouth and the other on her

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    upper neck under her chin to hold her head still. His intention was to silence, not to kill."

  9. This finding implicitly rejects Mrs Stocker's account of the incident also. She had said that her husband had dismounted from the chair, had pushed her against a small sofa, put his hands around her neck and squeezed, causing her to believe that he would kill her. The judge accepted that some two hours after the incident, red marks on Mrs Stocker's neck had been seen by police officers but he came up with a theory as to how those had come about which neither party had proposed.

  10. It is of course open to a trial judge, after considering all the evidence, to reach his or her own conclusions or to draw inferences which neither party has advanced or espoused. But there must be a sound basis for doing so. In this case, the judge accepted the police evidence that there were red marks on Mrs Stocker's neck. Mr Stocker had agreed during a police interview that it was possible that he had put his hand around his wife's neck and, implicitly, that this had caused the red marks that were found there. He had also said that he had dismounted from the chair or stool on which he had been standing; had followed Mrs Stocker over to a chair and that it was possible that he had put his hand around her neck. Unsurprisingly, he was content to go along with a suggestion put to him by a police officer that he had not "maliciously grabbed her around the throat or tried to assault her".

  11. At no point did Mr Stocker claim that he had grasped his wife by the throat in order to secure his hand covering her mouth or to prevent her from wrenching free from his grasp. Nor did he suggest that he could not have prevented her from shouting simply by placing his hand over her mouth. It is to be noted that he had admitted to police that he had alighted from the stool or chair. If that statement was accurate and truthful, he was therefore on the same level as his wife. Yet, the judge rejected Mr Stocker's evidence that he had simply put his hand over his wife's mouth. Mitting J considered that a further hand (on the neck) was needed to secure the grip on Mrs Stocker's mouth. This conclusion seems to have been premised on Mr Stocker remaining on the chair. (And, in fairness to the judge, it seems that Mr Stocker so claimed in evidence.)

  12. If other considerations had not supervened, there might well have been an issue as to whether it was open to the judge to reach the conclusion which he did, particularly because that conclusion is more benevolent to Mr Stocker than any version of the facts which he could reasonably have advanced. It seeks to explain the red marks on a basis which Mr Stocker has never argued for. In the event, however, it is unnecessary to deal with that matter because of the conclusions that I have reached on other issues and, since it had not been argued that the judge's finding on this point was one which he should not have made, I say nothing more about it.

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  13. The judge began his discussion about the meaning to be given to the statements said to be defamatory by referring to the well-known case of Jeynes v News Magazines Ltd [2008] EWCA Civ 130 and cited the eight propositions made in that case by Sir Anthony Clarke MR in para 14. The judge also quoted the supplementary qualification to those propositions provided by Sharp LJ in Rufus v Elliott [2015] EWCA Civ 121, para 11. (Both authorities will be considered below.)

  14. Having considered these judicial pronouncements, Mitting J said that he did not understand that either authority indicated that, in order "to confirm the meaning in ordinary usage of a single English word", it was impermissible to refer to "an authoritative English dictionary such as the Oxford English Dictionary." He then referred to the two dictionary definitions which I have set out at para 7 above and continued at para 36:

    "If the defendant had said 'he strangled me', the ordinary reader would have understood her to have used the word in the second sense for the obvious reason that she was still alive. But the two Facebook comments cannot have been understood to refer to 'trying' to strangle her in that sense because, as she said, the police had found handprints on her neck. These could only have been caused by the painful constriction of her neck or throat. If understood in that sense, she could not have been taken to have said that the defendant had tried to strangle her because he had succeeded. The ordinary reader would have understood that the...

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