Guerrilla Marketing Ltd v NGM Advertising Limited [2026] EWHC 1085 (KB)

[2026] EWHC 1085 (KB)Case No KB-2025-001392
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice,Date 08/05/2026
Strand,
London,
WC2A 2LL
Before
MR JUSTICE COPPEL
Between
GUERRILLA MARKETING LTDClaimant(1) NGM ADVERTISING LIMITEDDefendant(2) GUY THURLOWDefendant(3) GREGORY ALLENDefendant
Nikila Kaushik (instructed by Brandsmiths) for ClaimantKatya Pereira (instructed by Caytons) for DefendantHearing Hearing dates: 25 th March 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Friday 8 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

The claim

[1]In this claim, the Claimant and the First Defendant are competitors in the business of marketing display space for advertising to students on digital screens which are located on university and college properties. The Claimant takes issue with a chain of emails, sent between 16 April and 29 April 2024 by which Guy Thurlow and Gregory Allen of the First Defendant, who are the Second and Third Defendants respectively, communicated with Boohoo.com UK Ltd (“BH”) (“the email chain”). At that stage, BH had been a customer of the First Defendant but was not currently its customer. In the emails, Mr Thurlow and Mr Allen alleged to BH, with a degree of certainty which is in dispute, that the Claimant may have sold or had sold display space on advertising screens, including to BH, which it was not entitled to sell. The consequence, according to the Claimant, was that BH terminated a contract it had entered into with the Claimant and the Claimant suffered longer term harm to its commercial reputation.[2]The Claimant disputes the allegations made by the Defendants to BH and claims damages against the Defendants for libel, malicious falsehood, unlawful interference with the Claimant’s economic interests and procuring a breach of contract.

The preliminary issues

[3]In an Order dated 3 November 2025, Collins Rice J directed that there be a trial of these preliminary issues: i) the natural and ordinary meanings of the publications complained of (as defined in the Particulars of Claim); ii) whether and to what extent, in the meanings found, the publications complained of were or included a statement of fact or an expression of opinion; and iii) whether, in the meanings found, the publications complained of are defamatory at common law.

The legal principles

[4]In determining the meaning of the statements complained about, I must identify the single, natural and ordinary meaning which each would convey to the hypothetical reasonable reader. In doing so, I apply the well-known principles set out by Nicklin J in Koutsogiannis v Random House Group Ltd [2019] EWHC 48 (QB); [2020] 4 WLR 25, §12, as approved by the Court of Appeal in Millett v Corbyn [2021] EWCA Civ 567; [2021] EMLR 19, §8:
“i) The governing principle is reasonableness. ii) The intention of the publisher is irrelevant. iii) The hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve. iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task. v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties. vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected. vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense. viii) The publication must be read as a whole, and any 'bane and antidote' taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic "rogues' gallery" case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases). ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication. x) No evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning. xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge, but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership. xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning).”
[5]The parties have invited me to determine the “Chaselevel” of the meanings of each of the statements, as per Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11, §45 in which Brooke LJ identified three types of defamatory allegation: broadly,(1) the claimant is guilty of the act;(2) there are reasonable grounds to suspect that the claimant is guilty of the act; and(3) there are grounds to investigate whether the claimant has committed the act. These are not a straitjacket which compel the court to select one of these prescribed levels of meaning, but rather are a helpful shorthand (Koutsogiannis, §13).[6]Where a statement purports to repeat information which has been provided to the maker by third parties, the repetition rule applies and prevents the court from deciding that simply because the statement is a report of what someone else said, it carries a lesser meaning than the original allegation. Nevertheless, the context and entire contents of a statement remain critical and may convey to the reader that an allegation which has been repeated has been adopted and endorsed, or repudiated and discounted (Koutsogiannis, §15).[7]In determining whether a statement is comment or opinion as opposed to a statement of fact, I should apply the following principles, drawn from §16 of Koutsogiannis:
“i) The statement must be recognisable as comment, as distinct from an imputation of fact. ii) Opinion is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc. iii) The ultimate question is how the word would strike the ordinary reasonable reader. The subject matter and context of the words may be an important indicator of whether they are fact or opinion. iv) Some statements which are, by their nature and appearance opinion, are nevertheless treated as statements of fact where, for instance, the opinion implies that a claimant has done something but does not indicate what that something is, i.e. the statement is a bare comment. v) Whether an allegation that someone has acted "dishonestly" or "criminally" is an allegation of fact or expression of opinion will very much depend upon context. There is no fixed rule that a statement that someone has been dishonest must be treated as an allegation of fact.”
[8]In §17 of Koutsogiannis, Nicklin J repeated his own dictum in Tinkler v Ferguson [2018] EWHC 3563 (QB), §37 regarding the dangers of inferring a comment or opinion from the text of a publication:
"… a number of adjectives and adverbs have been inserted into the Claimant's meaning which are not part of the natural and ordinary meaning of the words. They are strained constructions of what is being said in the [publication]. For example, if an individual reader thought that the Claimant's alleged behaviour was 'selfish', that would be a personal judgment made by the individual reader. It is neither stated nor implied in the text. Such inferential meanings (that depend upon - and vary between - each individual reader's moral judgment) are not part of the natural and ordinary meaning of words: Brown -v- Bower, §54. In context, a suggestion that the conduct of the Claimant was 'selfish' would be an expression of an opinion. If such an opinion is expressly stated by the author, then it can readily be identified as such by readers. I find the notion of an 'inferred opinion' conceptually difficult. I suppose it is conceivable that an article may not make express an author's view, but it nevertheless emerges clearly as a result of discernible indications in the text as to what his or her opinion actually is on the given facts. But this is very subjective; and it may be difficult to separate out those cases from cases where what is really happening is simply that the reader is supplying his or her own judgment on the stated facts rather than detecting the author's opinion by implication."
[9]A statement is defamatory at common law if it(a) attributes to the claimant behaviour or views that are "contrary to common shared views of our society" (such that they would tend to lower the claimant in the estimation of right-thinking people generally), and(b) would tend to have a "substantially adverse effect" on the way that people would treat the claimant: see Millett v Corbyn, §9.[10]I take into account that the use of conditional language does not, of itself, prevent the communication of a clear defamatory imputation where the condition relates to the effect of the alleged misconduct rather than its existence. In such circumstances, the reasonable reader may understand the defendant to be asserting as fact that the claimant engaged in misconduct (which is likely to be defamatory), while expressing uncertainty only as to whether the recipient was affected by it.[11]In determining the issues of meaning, whether the statement is fact or opinion and whether the meaning is defamatory at common law, I should adopt a flexible and holistic approach rather than approaching the issues in too linear and compartmentalised a fashion, as the answers may throw light on each other (Berg v Jones [2026] EWHC 564 (KB), §16.

My approach to the statements at issue in this case

[12]The context and mode of publication (principle (ix) in Koutsogiannis) are of some significance in this case. The email chain had only two recipients at BH (and there is currently no evidence to suggest that it was circulated more widely). One recipient (“BH recipient 1”) was the addressee of all six emails; the other (“BH recipient 2”) was the addressee of four of them but I readily accept that he also became aware of the contents of the other two. He was a recipient of the first email, was not copied into the next two but was then re-included in the email chain which contained the earlier emails which he had not received directly.[13]Since the emails had an identifiable and limited readership, I take into account the qualities of the hypothetical reasonable reader in the position of the two immediate publishees (see Peck v Williams Trade Supplies Ltd [2020] EWHC 966 (QB), §11(ii)). The recipients were businesspeople, working in the same area of business as the senders of the emails (albeit on the other side of the supplier-customer divide), who can be expected to have a reasonable knowledge of commercial practice in that business area. They were being informed of matters which were potentially very serious – that they had been deceived by one of their business partners – and can be expected to have read the emails with care and to have taken their contents seriously. They would be expected to bear in mind that the senders were making allegations about a commercial rival and so approach the allegations with a degree of caution, but that would not materially dilute the seriousness with which the allegations would be approached.[14]Since the six emails complained of appeared in a relatively short email chain, and both recipients were aware of all six emails, the meaning which the readers would have attributed to later emails would have been informed by what was said in the earlier emails in the chain. But the converse is not the case: the more strongly worded terms of later emails cannot influence the meaning which earlier emails would have been understood as having at the time of publication (see Grappelli v Derek Block Holdings Ltd [1981] 1 WLR 822, 831).[15]None of the emails refers to the Claimant by name and it is a matter of dispute whether the first two emails refer to the Claimant. However, for the purposes of the preliminary issues trial, I am asked to assume that all of the emails refer to the Claimant.[16]In accordance with settled practice, I read the publications and formed my own provisional views before considering the parties’ written and oral submissions. My initial impression was that the Defendants had alleged that the Claimant, a commercial rival, had been guilty of what was, in the context of their respective businesses, serious misconduct, namely offering advertising space to prospective customers such as BH which it was not entitled to offer. Although an initial email to BH was non-committal as to the explanation for the Claimant’s conduct, subsequent emails made clear that the Defendants were alleging that the Claimant had acted dishonestly and fraudulently, rather than contemplating that there was an innocent, or less culpable, explanation for what was alleged to have occurred, such as mistake on the part of the Claimant (or the Defendants for that matter).

The first email

[17]The first email was sent by Mr Allen to both BH recipients at 11.51 on 16 April 2024. The subject line of the email, which remained constant in subsequent emails, was “Potential Issue / Post Campaign Report”. The statement complained of is as follows:
“We’ve been made aware that there is a media owner in the student space who has some of our screens listed on their site list and selling them as their own, without any relationship with us to publish media on our network. This is obviously a serious issue that we are investigating, but I wanted to get in touch as boohooMAN was specifically mentioned to us as a recent customer. [Recipient 1], you mentioned you had no budget left for bookings at the moment so perhaps some of the information we have received is incorrect, but if by chance boohooMAN has made a booking for student media recently, I thought you would want to know that based upon the information you received, it might be worth looking into.”
[18]In my judgment, the meaning of these words is:
“There are reasonable grounds to investigate whether the Claimant has marketed to clients and/or prospective clients the use of digital advertising screens that are in fact owned and operated by the First Defendant and which the Claimant is not entitled to market. BH may be one of the clients in question and should investigate the matter.”
[19]The Claimant did not suggest a meaning that was any more definitive than that there were reasonable grounds to investigate its conduct. It proposed a meaning which imported that there were grounds to investigate whether it was engaging in unlawful business practices by falsely and deceptively representing that it was entitled to use advertising screens that it was not entitled to use. The words “false” and “deception” or similar are not used (unlike in email 2 – see below) and – as Ms Kaushik for the Claimant accepted - there could, at that early stage of the First Defendant’s investigations, have been a less blameworthy explanation for the Claimant’s alleged conduct. Other possible explanations included mistake on the Claimant’s part or indeed mistake on the Defendants’ part (which is in fact alleged in the claim). I do not agree with Ms Kaushik’s submission that the words “we’ve been made aware”, “serious issue” and “investigating” would have conveyed to the reasonable reader, who is not “avid for scandal” (Koutsogiannis, §12(iii)), that the basis of investigation at that stage was that the Claimant had been guilty of serious wrongdoing as opposed to any other explanation.[20]The meaning I have identified is a Chase level 3 meaning. That is supported by the subject of the first email being “Potential issue”, which serves again to highlight that investigations were at an early stage and that some of the information received by the First Defendant could turn out to be incorrect or misleading.[21]It is common ground between the parties that the first email conveys statements of fact as opposed to opinion. I agree.[22]The meaning I have identified is not defamatory at common law. Neither of the limbs of the definition (see §9 above) is satisfied in circumstances where investigations were at an early stage and there was a range of possible explanations for the conduct of which the Claimant was suspected, including mistake on the part of the Claimant or of the Defendants.

The second email

[23]The second email was sent by Mr Thurlow (copying Mr Allen) to BH recipient 1 at 13.11 on 18 April 2024. The statement complained of is as follows:
“I am jumping in on the below as it was me who has been informed of the information. I'm unfortunately not able to share any details over email, but I would be happy to discuss this with you over a quick call if you would like? Based upon the information I have received, I believe that the company in question is making false claims and deceiving customers such as yourselves, mainly by selling screens on their site list which they do not own or operate. I am not one to make allegations, but I believe this is potentially a serious issue that will need to be investigated by yourselves.”
[24]The main issue between the parties on this publication is whether it conveyed that the Claimant was suspected of conduct which was dishonest and/or fraudulent, which is included in the meaning proposed by the Claimant, but is denied by the Defendants. The Claimant accepted that the phrase “false claims” did not, without more, convey that the claims were known to be false, which would amount to an allegation of dishonesty on the Claimant’s part. But the parties disagreed as to whether the deceiving of customers implied that the Claimant had been dishonest; the Defendants’ position was that being deceived was merely the effect of customers being given incorrect information. The Defendants’ proposed meaning would leave the words “false claims” and “deceiving customers” to speak for themselves, leaving it with room to argue at trial that neither of these phrases imported dishonesty.[25]In my judgment, the second email would convey to the hypothetical, reasonable reader that the Claimant was suspected of dishonesty or fraud, in that its false claims were deliberately or knowingly and so dishonestly or fraudulently made. That is inherently the natural and ordinary meaning of the allegation of deceiving customers (and is not, as the Defendants contended, an impermissibly inferred value judgment). Although this is not a matter which turns on authority, I note that in Haviland v Andrew Lownie Literary Agency Ltd [2021] EWHC 143 (QB), Nicklin J (at §19) regarded the deliberate (as opposed to innocent or careless) making of false statements to connote deception or an attempt to deceive.[26]This, more serious, interpretation of the publication is also supported by: i) Mr Thurlow’s unwillingness to name the perpetrator in writing, but only in a telephone conversation with BH recipient 1. ii) The stated nature of the Claimant’s conduct - “selling screens on their site list which they do not own or operate”. Although this was stated in similar terms in the first email, when put beside “false claims” and “deceiving customers” it would convey to the reader conduct which a business such as the Claimant could only realistically have perpetrated deliberately and not innocently or carelessly. iii) The words “I am not one to make allegations” which, since Mr Thurlow had in fact made allegations, served to emphasise the seriousness of what he had said. iv) Mr Thurlow’s statement that this was an issue which “will need to be investigated by yourselves”, which conveys a higher degree of significance and urgency than the first email (“might be worth looking into”).[27]Although Mr Thurlow is making an allegation based on information he has received from others, that does not diminish the seriousness of the allegation. He is stating the allegation as something he believes, without any qualification as to the reliability of the source(s) of the information.[28]The more serious nature of the allegation made as compared with the first email also serves to justify a higher degree of certainty than merely reasonable grounds for investigation.[29]In my judgment, the meaning of the second email is:
“There are reasonable grounds to suspect that the Claimant has dishonestly made claims which it knew to be false, and has deceived customers, by selling to customers the right to advertise on digital screens that the Claimant did not own or operate.”
[30]This is a Chase level 2 meaning.[31]The parties were agreed, and I find, that the second email contains statements of fact, whichever of their competing meanings was preferred, and that its meaning is defamatory at common law.

The third email

[32]The third email was sent by Mr Thurlow (copying Mr Allen) to BH recipient 1 at 08.00 on 22 April 2024. The statement complained of is as follows:
“Following on from the below, I wanted to let you know about the sites we exclusively operate in which have been spotted on another media owners site list, so please see attached so you can cross reference with anything that has been shared with yourself. If these sites were included in any package you have purchased, then it confirms that you have been mis-sold and are unfortunately on the receiving end of fraudulent activity. I have also attached some examples of emails confirming that we are the exclusive operator and owner of the only digital screen at each site.”
[33]In addition, this publication is pleaded to include the attachments referred to, which comprised a list of sites which were said to be exclusively operated by the First Defendant and three extracts from emails confirming that the First Defendant was the only operator of digital marketing screens at the site for which the author of the email was responsible. The list of sites comprised two pages of sites, one listing 18 sites and one listing 11 different sites. I apprehend from the fourth email that it was the list of 18 sites which represented the sites said to be exclusively operated by the First Defendant (see §45 below).[34]The third email alleges that the Claimant had been engaged in mis-selling, amounting to fraud, by including sites on its site list which it offered to potential customers and on which it was not entitled to sell advertising space because those sites were exclusively operated by the First Defendant. That allegation is expressed without qualification and by way of follow-on from previous emails, thereby indicating that matters had moved on from the second email, where the allegation was expressed as a belief based on information received to date, and was still under investigation. The allegation of fraud reflects what was meant in the second email as to the Claimant making claims to be entitled to sell certain advertising space which it knew to be false.[35]The Claimant’s pleaded meaning (Particulars of Claim, §23) includes an allegation that the Claimant had defrauded BH by mis-selling to it advertising space which it did not own and was not entitled to operate. However, that meaning is not consistent with the conditional phrase “If these sites were included in any package you have purchased” (my emphasis)”. That conditionality indicates that there was uncertainty as to whether BH had purchased any advertising space from the Claimant on any of the relevant screens.[36]In my judgment, the meaning of this publication, reflecting the necessary conditionality, and building on the allegation in the second email that the Claimant was suspected of having made claims to be entitled to sell advertising space which it knew to be false is:
“The Claimant has been engaged in fraudulent mis-selling of advertising space by marketing a site list which included digital screens that were exclusively operated by the First Defendant and on which the Claimant knew that it was not entitled to sell advertising space. If BH has contracted with the Claimant for advertising space on any of sites listed in the attachment as being exclusively operated by the First Defendant then it has been a victim of the Claimant’s fraudulent conduct.”
[37]Although this departs from the meaning pleaded by the Claimant, in particular because it alleges fraudulent mis-selling of which BH may have been a victim, rather than simply a fraud upon BH, Ms Pereira for the Defendants accepted in her oral submissions that this construction of the third email was within the parameters of, and was not more serious than, the sting pleaded by the Claimant.[38]The meaning in §36 above is a Chase level 1 meaning. Contrary to the Defendants’ submission, the fact that there is doubt as to whether BH has been a victim of the alleged fraud does not serve to reduce the imputation of the third email to Chase level 2. The allegation of fraudulent conduct on the Claimant’s part – as set out in the first sub-paragraph of §36 above - is unqualified by any uncertainty and is clearly at Chase level 1. Similarly, the allegation as to BH being a victim of the Claimant’s fraudulent conduct – in the second sub-paragraph of §36 – is also unqualified by any uncertainty as to the nature of the Claimant’s conduct but only uncertainty as to whether BH had contracted for any of the disputed advertising space, a fact which will have been within the knowledge of the persons to whom the publication was made. If, as I apprehend to be the case (from the Particulars of Claim and the correspondence between the First Defendant and BH), BH did in fact contract for some advertising space which, according to the Defendants, the Claimant was not entitled to sell, there was, in substance, a complete and unqualified allegation that BH had been the victim of fraud by the Claimant (also Chase level 1).[39]The parties are also in dispute about whether the description of the Claimant’s conduct as fraudulent is a statement of fact or of opinion. The Defendants submitted that the accusation of fraudulent conduct was a value judgment on its part rather than an outright allegation of fraud in its civil or criminal form. The Defendants relied upon the explanation given in the third email as to what the Claimant’s conduct had been. Given that explanation, this was not a bare comment which was accordingly liable to be treated as a statement of fact (see §7 above). Also, as the Defendants submit, "[t]he more clearly a statement indicates that it is based on some extraneous material, the more likely it is to strike the reader as an expression of opinion" (Blake v Fox [2023] EWCA Civ 1000; [2024] EMLR 2, §24).[40]There is no rule that a statement that someone has been dishonest must be treated as an allegation of fact (or, for that matter, as an opinion) (see §7 above). It must follow that there is also no rule that an allegation of fraud, which is a variation upon one of dishonesty, is either fact or opinion, even if it appears in a publication which describes the conduct on which the allegation is based. Everything depends upon the wording of the particular publication and the context in which the relevant statements are made.[41]Here, a hypothetical reader would have understood that the statements in the third email that the Claimant’s conduct had been fraudulent, and that BH may have been the victim of fraud, were statements of fact rather than of opinion given in particular: i) The meaning of the second email was that the Claimant was suspected of having dishonestly made claims to customers to be entitled to sell advertising space which it knew to be false. ii) As I have noted, it was common ground between the parties, and I have found, that that meaning was factual and did not consist of opinion or comment. iii) The allegation in the second email was developed in the third email in that the position hardened from one of reasonable suspicion, and more details were provided of the sites affected, but without departing from the accusation of dishonesty in the second email. iv) The allegation of fraud is not materially different from the factual allegation in the second email that (there were reasonable grounds to suspect that) the Claimant had dishonestly made claims to customers to be entitled to sell advertising space which it knew to be false. In short, the allegation of fraudulent conduct in this particular context was not an evaluative gloss but a shorthand factual conclusion drawn by the First Defendant from asserted facts which were presented as true.[42]The parties are agreed, and I find, that the meaning of the third email is defamatory at common law. The Defendants did not submit (correctly, in my view) that the conditionality of the allegation as to the Claimant having defrauded BH (“If BH has contracted with the Claimant…”) prevents that part of the meaning of the third email having a defamatory imputation.

The fourth and fifth emails

[43]The fourth and fifth emails are characterised by the Claimant as a single publication because they were sent within a few hours of each other and the contents of the fifth email supplement those of the fourth. The fourth email was sent by Mr Thurlow (copying Mr Allen) to both BH recipients at 09.21 on 26 April 2024. The statement complained of is as follows:
“We have currently identified 18 screens on their site list of which we are the exclusive operator - please see those sites attached. It's important to note that I have also heard from other media owners who have been affected, so I believe the number will be much higher than 18, but these are the screens that we can provide evidence for ourselves. Thanks and please keep me in the loop as we are still investigating this further before deciding on our next steps of action.”
[44]In addition, this publication is pleaded to include the attachment referred to, which includes a list of 18 sites which, according to the First Defendant, it exclusively operated and which it had identified as appearing on the Claimant’s site list.[45]The fifth email was sent by Mr Thurlow (copying Mr Allen) to both BH recipients at 13.25 on 26 April 2024. It appears to have been sent in response to an email from BH recipient 2 to the effect that he was having difficulty in correlating the site list provided by the First Defendant with that provided by the Claimant. The statement complained of is as follows:
“Please see an updated attachment, which includes the provider and site name which I know is also on their site list. Also, we are entirely accommodation FYI. The best approach will be to cross-reference will be the postcodes as a starting point.”
The best approach will be to cross-reference will be the postcodes as a starting point.”[46]Again, this publication is pleaded to include the attachment to the email, which contained the same list of sites sent under cover of the fourth email, but with additional information columns showing, on the list of 18 sites, the accommodation provider where the screen was located and the site name.[47]There are two aspects to the meaning of the fourth and fifth emails. The first concerns the Claimant’s alleged mis-selling of screens said to be exclusively operated by the First Defendant. These emails do not significantly advance the position from the third email and the issues between the parties as to their meaning are similar to those which arose in relation to the third email (for example, the Claimant asserting that the email alleged that BH had been defrauded when the First Defendant had indicated that it did not know whether or not that was the case). However, they would have been read and understood in light of the emails which had come before them and, in particular, as providing additional information in respect of the allegations of fraudulent conduct which had been made in the third email. For the same reason, the fourth and fifth emails in substance reiterated the allegation of fraudulent mis-selling which was made in the third email, notwithstanding that the term “fraud” orsimilar was not used in the email. This is not illegitimate “inferred opinion” as the Defendants submitted, but a recognition that the hypothetical reader would understand the fourth and fifth emails as providing further information in relation to the third email (which was itself a development from the first and second emails in the same chain).[48]The second aspect of the meaning of the fourth and fifth emails is the allegation that the Claimant’s conduct has also affected “other media owners”, by which the First Defendant meant “other owners/operators of advertising screens”. The substance of the allegation was that the Claimant had also (fraudulently) mis-sold space on advertising screens which were exclusively operated by others just as it had fraudulently mis-sold space on those of the First Defendant (that is, others had been “affected” in the same way as the First Defendant had been affected). However, the First Defendant did not have evidence to support the allegation of mis-selling of advertising space on screens exclusively operated by others. In making this allegation, Mr Thurlow was repeating what he had been told by “other media owners”. The repetition rule (see §6 above) applies so the mere fact that he was repeating an allegation made by others does not serve to diminish its severity. Significantly, whilst he acknowledges that he does not himself have supporting evidence for this allegation, Mr Thurlow does not express any doubt as to its veracity. He does not use any neutral attribution formula such as “it has been alleged by other media owners”; on the contrary, he states in definitive terms that the other media owners “have been affected”. He also emphasises the significance of the allegation (“It is important to note”) and expresses his own belief that the allegation is true and that the Claimant’s fraudulent conduct has been widespread (“I believe the number will be much higher than 18”).[49]Accordingly, in my judgment, the fourth and fifth emails have the following meaning:
“To date, the First Defendant has established that the Claimant’s fraudulent mis-selling of advertising space, as described in the third email, involved 18 screens of which the First Defendant was the exclusive operator. If BH has purchased advertising space from the Claimant on any of the 18 screens in the list provided by the First Defendant, then it has been a victim of the Claimant’s fraud. The Claimant has also fraudulently mis-sold advertising space on screens which are exclusively operated by media operators other than the First Defendant. The First Defendant does not have evidence to support that allegation, but the total number of screens affected by the Claimant’s mis-selling is likely to be much higher than 18.”
[50]Both of these aspects of the meaning of the fourth and fifth emails are Chase level 1 meanings. That the First Defendant did not have evidence of other media owners’ screens having been mis-sold and was “still investigating this further before deciding on our next steps of action” did not diminish the certainty with which the First Defendant alleged mis-selling of its own screens and those of others. The further investigations referred to appeared to be in relation to the extent of the Claimant’s misconduct – there may have been customers other than BH to whom advertising space on the First Defendant’s screens had been sold – rather than because the First Defendant was in any doubt about the allegation of fraudulent mis-selling of advertising space on screens of which it was the exclusive operator.[51]The meaning of the fourth and fifth emails conveys statements of fact rather than opinion/comment. To the extent that they conveyed an allegation of fraudulent conduct, this was factual, for the same reasons as I have given in relation to the third email (see §§40-41 above).[52]The parties are agreed, and I find, that the meaning of the fourth and fifth emails is defamatory at common law.

The sixth email

[53]The sixth email was sent by Mr Thurlow (copying Mr Allen) to both BH recipients at 12.15 on 29 April 2024. It was sent in response to an email from BH recipient 2 to Mr Thurlow which stated as follows:
“Just to confirm, these sites are yours so they are 100% not accessible to the other company? So in essence if they were added to their list, they would be lying?”
So in essence if they were added to their list, they would be lying?”[54]Mr Thurlow responded:
“That’s correct. We have exclusivity at the 18 sites in question and have confirmation from each individual site that we are the only advertising screen in situ. I'm also confident that this goes much further than the 18 screens we are disputing, but I don't currently have the evidence to support this just yet, as it goes beyond the scope of our network.”
[55]The Defendants submitted that the confirmation given by Mr Thurlow in the sixth email was likely to have been a response only to the first of the questions asked by BH recipient 2. However, it seems to me to be clear that the hypothetical reader would have understood the confirmation to relate to both questions – Mr Thurlow’s “that’s correct” did not distinguish between the two questions he had been asked. As such, Mr Thurlow confirmed that the Claimant would be “lying” if it had included on its site list any of the sites which the First Defendant had said it had exclusive access to. It is conceivable that the word “lying” meant simply “untrue” in the sense of saying something incorrect rather than importing any imputation of dishonesty. However, “lying” would usually import dishonesty and that is the better meaning of the term in this email given the allegations of dishonesty which had been made by the First Defendant earlier in the email chain which would have been in the mind of the hypothetical reader of the sixth email. It is more reasonable to interpret the confirmation being sought by BH recipient 2, and given by Mr Thurlow, as being confirmation that, if it had included any of the 18 sites previously listed by the First Defendant on its site list, the Claimant would have dishonestly made claims which were not merely false but known to be so by the Claimant.[56]A similar issue arose as in relation to earlier emails as to whether the meaning of the sixth email included an allegation that BH had been defrauded, as the Claimant has pleaded. Consistent with my decision in relation to earlier emails, that was not the case, but the meaning did include an allegation of fraudulent mis-selling of which BH may have been a victim. Another repeat issue was whether the meaning of the sixth email included an allegation of fraudulent mis-selling when that was not expressly stated in the sixth email. In my judgment, it did, given the context and purpose of the sixth email in providing further information in relation to the allegations of fraudulent misconduct which had been made earlier in the email chain.[57]The second part of the sixth email refers to the allegation, made for the first time in the fourth email, that mis-selling by the Claimant had extended to screens owned or operated by media operators other than the Defendant. In this respect, the sixth email did not materially advance the position stated in the fourth email: the First Defendant’s position was that it was confident that this conduct had occurred and that it went significantly beyond the 18 screens operated by the First Defendant but it was acknowledged that the First Defendant did not yet have supporting evidence of this. The words “just yet” indicated an expectation on the part of the First Defendant that such evidence would be forthcoming in the near future.[58]Accordingly, in my judgment, the sixth email has the following meaning:
“The Claimant is not entitled to offer advertising space at the 18 sites notified to BH in the fourth and fifth emails. The screens at those sites are exclusively operated by the First Defendant and no-one other than the First Defendant is entitled to market advertising space on screens at those sites. If the Claimant has claimed to BH to be entitled to provide advertising space on screens at those sites, then those claims were untrue and were dishonestly made. The Claimant’s fraudulent mis-selling of advertising space went much further than the First Defendant’s screens at the 18 sites and included many screens operated by other media owners, although the First Defendant does not yet have supporting evidence of this.”
[59]Consistent with my rulings in relation to the third, fourth and fifth emails, both aspects of the meaning of the sixth email are at Chase level 1.[60]The parties are agreed, and I find, that the meaning of the sixth email is defamatory at common law.

Conclusions

[61]The publications complained of, bear the following meanings. All of the meanings consist of statements of fact rather than expressions of opinion. With the exception of the meaning of the first email, all are defamatory at common law. First email “There are reasonable grounds to investigate whether the Claimant has marketed to clients and/or prospective clients the use of digital advertising screens that are in fact owned and operated by the First Defendant and which the Claimant is not entitled to market. BH may be one of the clients in question and should investigate the matter.” [Chase level 3] Second email “There are reasonable grounds to suspect that the Claimant has dishonestly made claims which it knew to be false, and has deceived customers, by selling to customers the right to advertise on digital screens that the Claimant did not own or operate.” [Chase level 2] Third email “The Claimant has been engaged in fraudulent mis-selling of advertising space by marketing a site list which included digital screens that were exclusively operated by the First Defendant and on which the Claimant knew that it was not entitled to sell advertising space.” [Chase level 1] “If BH has contracted with the Claimant for advertising space on any of sites listed in the attachment as being exclusively operated by the First Defendant, then it has been a victim of the Claimant’s fraudulent conduct.” [Chase level 1] Fourth and fifth emails “To date, the First Defendant has established that the Claimant’s fraudulent mis-selling of advertising space, as described in the third email, involved 18 screens of which the First Defendant was the exclusive operator. If BH has purchased advertising space from the Claimant on any of the 18 screens in the list provided by the First Defendant, then it has been a victim of the Claimant’s fraud.” [Chase level 1] “The Claimant has also fraudulently mis-sold advertising space on screens which are exclusively operated by media operators other than the First Defendant. The First Defendant does not have evidence to support that allegation, but the total number of screens affected by the Claimant’s mis-selling is likely to be much higher than 18.” [Chase level 1] Sixth email “The Claimant is not entitled to offer advertising space at the 18 sites notified to BH in the fourth and fifth emails. The screens at those sites are exclusively operated by the First Defendant and no-one other than the First Defendant is entitled to market advertising space on screens at those sites. If the Claimant has claimed to BH to be entitled to provide advertising space on screens at those sites, then those claims were untrue and were dishonestly made.” [Chase level 1] “The Claimant’s fraudulent mis-selling of advertising space went much further than the First Defendant’s screens at the 18 sites and included many screens operated by other media owners, although the First Defendant does not yet have supporting evidence of this.” [Chase level 1]