Rubber Improvement Ltd v Daily Telegraph Ltd
[1964] AC 234(Decision by: Lord Devlin)
Rubber Improvement Ltd
vDaily Telegraph Ltd
Judges:
Lord Morris of Borth-Y-Gest
Lord Hodson
Lord DevlinLord Reid
Lord Jenkins
Judgment date: 26 March 1963
Decision by:
Lord Devlin
My Lords, the natural and ordinary meaning of words ought in theory to be the same for the lawyer as for the layman, because the lawyer's first rule of construction is that words are to be given their natural and ordinary meaning as popularly understood. The proposition that ordinary words are the same for the lawyer as for the layman is as a matter of pure construction undoubtedly true. But it is very difficult to draw the line between pure construction and implication, and the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.
In the law of defamation these wider sorts of implication are called innuendoes. The word explains itself and is very apt for the purpose. In Rex v. Horne De Grey C.J. said: "In the case of a libel which does not in itself contain the crime, without some extrinsic aid, it is necessary that it should be put upon the record, by way of introduction, if it is new matter; or by way of innuendo, if it is only matter of explanation. For an innuendo means nothing more than the words, 'id est,' 'scilicet,' or 'meaning,' or 'aforesaid,' as, explanatory of a subject-matter sufficiently expressed before."
An innuendo had to be pleaded and the line between an ordinary meaning and an innuendo might not always be easy to draw. A derogatory implication may be so near the surface that it is hardly hidden at all or it may be more difficult to detect. If it is said of a man that he is a fornicator the statement cannot be enlarged by innuendo. If it is said of him that he was seen going into a brothel, the same meaning would probably be conveyed to nine men out of ten. But the lawyer might say that in the latter case a derogatory meaning was not a necessary one because a man might go to a brothel for an innocent purpose. An innuendo pleading that the words were understood to mean that he went there for an immoral purpose would not, therefore, be ridiculous. To be on the safe side, a pleader used an innuendo whenever the defamation was not absolutely explicit. That was very frequent, since scandalmongers are induced by the penalties for defamation to veil their meaning to some extent. Moreover, there were some pleaders who got to think that a statement of claim was somehow made more forceful by an innuendo, however plain the words. So rhetorical innuendoes were pleaded, such as to say of a man that he was a fornicator meant and was understood to mean that he was not fit to associate with his wife and family and was a man who ought to be shunned by all decent persons and so forth. Your Lordships were told, and I have no doubt it is true, that before 1949 it was very rare indeed to find a statement of claim in defamation without an innuendo paragraph.
I have said that a derogatory implication might be easy or difficult to detect; and, of course, it might not be detected at all, except by a person who was already in possession of some specific information. Thus, to say of a man that he was seen to enter a named house would contain a derogatory implication for anyone who knew that that house was a brothel but not for anyone who did not. In the passage I have quoted, De Grey C.J. distinguished between this sort of implication and the implication that is to be derived from the words themselves without extrinsic aid, and he treats the term "innuendo" as descriptive only of the latter. Since then the term has come to be used for both sorts of implication. Either sort had to be "put upon the record," as the Chief Justice said, and extrinsic facts had to be pleaded "by way of introduction," as he also said, or as a prefatory "averment," as it came to be called. Section 61 of the Common Law Procedure Act, 1852 , did away with the necessity of pleading the prefatory averment, while leaving it necessary to plead the innuendo: the section provided that "the plaintiff shall be at liberty to aver that the words or matter complained of were used in a defamatory sense, specifying such defamatory sense without any prefatory averment."
My Lords, a system of pleading was built up on this basis which in 1949 was disconcerted by the introduction of a new rule - Ord. 19, r. 6 (2). The object of the rule was to require that extrinsic facts must not only be proved but pleaded, thus restoring the position before 1852. The object was simple enough. It is the language of the rule that has caused the difficulties which have recently been brought to a head and have been the subject of three decisions, including the present one, by the Court of Appeal. The sub-rule reads: "(2) In an action for libel or slander if the plaintiff alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning. he shall give particulars of the facts and matters on which he relies in support of such sense."
The word "innuendo" is not used. But the effect of the language is that any meaning that does not require the support of extrinsic fact is assumed to be part of the ordinary meaning of the words. Accordingly, an innuendo, however well concealed, that is capable of being detected in the language used is deemed to be part of the ordinary meaning.
This might be an academic matter if it were not for the principle that the ordinary meaning of words and the meaning enlarged by innuendo give rise to separate causes of action. This principle, which originated out of the old forms of pleading, seems to me in modern times to be of dubious value. But it is now firmly settled on the authority of Sim v. Stretch, and the House was not asked to qualify it. How is this principle affected by the new rule? Are there now three causes of action? If there are only two, to which of them does the innuendo that is inherent in the words belong? In Grubb v. Bristol United Press Ltd. the Court of Appeal, disagreeing with some observations made by Diplock L.J. in Loughans v. Odhams Press Ltd., decided in effect that there were only two causes of action and that the innuendo cause of action comprised only the innuendo that was supported by extrinsic facts.
My Lords, I think, on the whole, that this is the better solution, though it brings with it a consequence that I dislike, namely, that at two points there is a divergence between the popular and the legal meaning of words. Just as the popular and legal meanings of "malice" have drifted apart, so the popular and legal meanings of "innuendo" must now be separated. I shall in the rest of my speech describe as a legal innuendo the innuendo that is the subject-matter of a separate cause of action. I suppose that it does not matter what terminology is used so long as it is agreed. But I do not care for the description of the popular innuendo as a false innuendo; it is the law and not popular usage that gives a false and restricted meaning to the word. The other respect is that the natural and ordinary meaning of words for the purposes of defamation is not their natural and ordinary meaning for other purposes of the law. There must be added to the implications which a court is prepared to make as a matter of construction all such insinuations and innuendoes as could reasonably be read into them by the ordinary man.
The consequence of all this is, I think, that there will have to be three paragraphs in a statement of claim where previously two have served. In the first paragraph the defamatory words will be set out as hitherto. It may be that they will speak for themselves. If not, a second paragraph will set out those innuendoes or indirect meanings which go beyond the literal meaning of the words but which the pleader claims to be inherent in them. Thirdly, if the pleader has the necessary material, he can plead a secondary meaning or legal innuendo supported by particulars under Ord. 19, r. 6 (2). Hitherto it has been customary to put the whole innuendo into one paragraph, but now this may easily result in the confusion of two causes of action and in consequent embarrassment. The essential distinction between the second and third paragraph will lie in the fact that particulars under the rule must be appended to the third. That is, so to speak, the hallmark of the legal innuendo. The pleader can, if he chooses, emphasise the character of the second paragraph by including in it some such words as were used in Loughans' case. That case was, in my opinion, rightly decided and rightly distinguished from Grubb's case by Upjohn L.J. in the latter case. Or the pleader can, as was suggested by Holroyd Pearce L.J. in Grubb's case, plead in the second paragraph that the words in their natural and ordinary meaning were understood to mean one thing; and then he could plead in the third paragraph that by reason of the facts thereinafter particularised they were understood to mean another The meanings alleged in the third paragraph can be the same as those alleged in the second paragraph if the pleader is relying upon the legal innuendo only as an alternative; or they can be different. But the essential thing is that if a paragraph is unaccompanied by particulars it cannot be a legal innuendo since for a legal innuendo particulars are mandatory and the innuendo cannot be proved without them.
It was suggested in argument that the division of the innuendo into two paragraphs would be awkward for the pleader. It is said that it may not always be easy to decide whether an extrinsic factor relied on is a matter of special knowledge, or whether it is just general knowledge in the light of which the ordinary, though indirect, meaning of the words has to be ascertained. I do not think that this should present any difficulty in practice. The pleader must ask himself whether he contemplates that evidence will be called in support of the allegation: if he does, it is a legal innuendo, and if he does not, it is not. If he is in doubt, he can plead in two paragraphs; and then if at the trial his opponent agrees or the judge rules that it is a matter of general knowledge, the legal innuendo can be dropped.
It was also suggested to your Lordships that the pleading of a middle paragraph was unnecessary and even improper, and your Lordships were told that since 1949 some judges have discouraged the pleading of all innuendoes that are not legal innuendoes. I should certainly like to see what I have called rhetorical innuendoes discouraged. But I am satisfied that the pleading of an innuendo in every case where the defamatory meaning is not quite explicit is at the least highly desirable, and I am glad to observe that in Loughans' case the attempt to strike out the innuendo failed. An attempt of this sort is no doubt inspired by the thought that it is unnecessary to plead the ordinary meaning of words and that that is all that the popular innuendo is. I think that that thought is fallacious. It does not take into account the difference I have pointed out between the meaning of words in the law of defamation and their meaning for the general purposes of the law. In general the meaning of words is a matter of law and therefore need not be pleaded, though where there is a difficult question of construction in issue it is usual and convenient to do so. But in defamation the meaning of words is a question of fact, that is, there is libel or no libel according to the impression the words convey to the jury and not according to the construction put upon them by the judge.
I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded; and a reasonable test of distinctness would be whether the justification would be substantially different. In the present case, for example, there could have been three distinct categories of justification - proof of the fact of an inquiry, proof of reasonable grounds for it and proof of guilt. If no innuendo had been pleaded and there had been full proof of grounds for inquiry, I cannot think that in a closing speech the plaintiff could without any previous notice invite the jury to say that the words meant guilt and to reject the justification as insufficient. Moreover, where distinct meanings are possible and the judge is invited to rule separately on one or more, it is desirable that the meanings put to the jury should be on the record. But that touches on a point of substance which I shall consider later.
I understand your Lordships all to be of the opinion that the pleading of the ordinary or popular innuendo is permissible but do not intend that the House should rule on whether it is necessary. I agree that the point does not arise directly in this case, and therefore I, too, shall reserve my judgment on it. But I make the comment that if it is not necessary, it is nevertheless a form of pleading universally used from the earliest times until 1949, and I can see nothing in the new rule that should alter so well established a practice.
My Lords, I have made a very long preliminary to the consideration of the pleading point in this case. Your Lordships were invited from the Bar to deal in detail with all the difficulties of pleading involved in that point and that have recently come to the fore in other cases, and I have thought it right to do so. I must now state how in the light of what I have said generally I should decide the point at issue. Paragraph 4 of the statement of claim is as follows: "By the said words the defendants meant and were understood to mean that the affairs of the plaintiffs and/or its subsidiaries were conducted fraudulently or dishonestly or in such a way that the police suspected that their affairs were so conducted."
The Court of Appeal considered this paragraph to be defective, and I agree with them. This does not involve any sort of criticism of the learned pleader, who drafted his statement of claim at a time when it was possible to take almost any view of the points I have been canvassing. It is plain now that paragraph 4 must be treated as in form a plea of a legal innuendo. But in substance it is not a legal innuendo because no extrinsic facts are pleaded: general knowledge is, as I have indicated already, not an extrinsic fact for the purpose of rule 6 (2) , but is matter, not requiring to be proved, in the light of which the jury can interpret the publication. In substance the paragraph is a plea of a popular innuendo and the confusion between substance and form makes it embarrassing.
But I cannot, with respect, agree with the Court of Appeal that the way in which the judge treated this point is by itself a ground for a new trial. He went by the substance of the paragraph and left it to the jury as an ordinary innuendo, not a legal one. Perhaps he ought to have insisted on an amendment in the form, but he stated the course he was going to take and neither counsel offered any objection to it. I cannot think that the jury could have been in any way misled. There has been some discussion about whether the plaintiffs will have to amend before proceeding to a new trial. That is for them to say. In the light of all this discussion they would perhaps be wise not to take indulgence for granted.
I turn now to the main ground for ordering a new trial. This was that the judge misdirected the jury by failing to tell them that the words were not capable of bearing one or more of the defamatory meanings alleged in paragraph 4 of the statement of claim. It is admitted that the words are capable of some defamatory meaning, and I think it is undoubtedly defamatory of a company to say that its affairs are being inquired into by the police. But paragraph 4 alleges that the words meant "that the affairs of the plaintiffs and/or its subsidiaries were conducted fraudulently or dishonestly or in such a way that the police suspected that their affairs were so conducted." This is saying that the words mean either that the plaintiffs were guilty of fraud or that they were suspected of fraud. If it is permissible to distinguish between these two meanings, then for reasons which I shall give as I proceed I should hold that the words are capable of the latter meaning but not of the former, and I should on this basis agree with the Court of Appeal that the jury should have been so directed and that, since they were not, there should be a new trial. But Mr. Milmo has submitted that it is not right so to distinguish.
In the first place, he relies on what are called the "rumour cases." I agree, of course, that you cannot escape liability for defamation by putting the libel behind a prefix such as "I have been told that ..." or "It is rumoured that ...", and then asserting that it was true that you had been told or that it was in fact being rumoured. You have, as Horridge J. said, in a passage that was quoted with approval by Greer L.J. in Cookson v. Harewood, "to prove that the subject-matter of the rumour was true." But this is not a case of repetition or rumour. I agree with the distinction drawn by Horridge J. on this point, though not necessarily with his limited view of the effect of the libel in that case. Anyway, even if this is to be treated as a rumour case, it is still necessary to find out what the rumour is. A rumour that a man is suspected of fraud is different from one that he is guilty of it. For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it.
The real point, I think, that Mr. Milmo makes is that whether the libel is looked at as a statement or as a rumour, there is no difference between saying that a man is suspected of fraud and saying that he is guilty of it. It is undoubtedly defamatory, he submits, to say of a man that he is suspected of fraud, but it is defamatory only because it suggests that he is guilty of fraud: so there is no distinction between the two. This is to me an attractive way of putting the point. On analysis I think that the reason for its attraction is that as a maxim for practical application, though not as a proposition of law, it is about three-quarters true. When an imputation is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts and it is no use submitting to a judge that he ought to dissect the statement before he submits it to the jury. But if on the other hand the distinction clearly emerges from the words used it cannot be ignored. If it is said of a man - "I do not believe that he is guilty of fraud but I cannot deny that he has given grounds for suspicion," it seems to me to be wrong to say that in no circumstances can they be justified except by the speaker proving the truth of that which he has expressly said he did not believe. It must depend on whether the impression conveyed by the speaker is one of frankness or one of insinuation. Equally, in my opinion, it is wrong to say that, if in truth the person spoken of never gave any cause for suspicion at all, he has no remedy because he was expressly exonerated of fraud. A man's reputation can suffer if it can truly be said of him that although innocent he behaved in a suspicious way; but it will suffer much more if it is said that he is not innocent.
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
In the libel that the House has to consider there is, however, no mention of suspicion at all. What is said is simply that the plaintiff's affairs are being inquired into. That is defamatory, as is admitted, because a man's reputation may in fact be injured by such a statement even though it is quite consistent with innocence. I dare say that it would not be injured if everybody bore in mind, as they ought to, that no man is guilty until he is proved so, but unfortunately they do not. It can be defamatory without it being necessary to suggest that the words contained a hidden allegation that there were good grounds for inquiry. A statement that a woman has been raped can affect her reputation, although logically it means that she is innocent of any impurity: Yousoupoff v. Metro-Goldwyn-Mayer Pictures Ltd. So a statement that a man has been acquitted of a crime with which in fact he was never charged might lower his reputation. Logic is not the test. But a statement that an inquiry is on foot may go further and may positively convey the impression that there are grounds for the inquiry, that is, that there is something to suspect. Just as a bare statement of suspicion may convey the impression that there are grounds for belief in guilt, so a bare statement of the fact of an inquiry may convey the impression that there are grounds for suspicion. I do not say that in this case it does; but I think that the words in their context and in the circumstances of publication are capable of conveying that impression. But can they convey an impression of guilt? Let it be supposed, first, that a statement that there is an inquiry conveys an impression of suspicion; and, secondly, that a statement of suspicion conveys an impression of guilt. It does not follow from these two suppositions that a statement that there is an inquiry conveys an impression of guilt. For that, two fences have to be taken instead of one. While, as I have said, I am prepared to accept that the jury could take the first, I do not think that in a case like the present, where there is only the bare statement that a police inquiry is being made, it could take the second in the same stride. If the ordinary sensible man was capable of thinking that where ever there was a police inquiry there was guilt, it would be almost impossible to give accurate information about anything: but in my opinion he is not. I agree with the view of the Court of Appeal.
There is on this branch of the case a final point to be considered. It is undoubtedly the law that the judge should not leave the question "libel or no libel" to the jury unless the words are reasonably capable of a defamatory meaning. But if several defamatory meanings are pleaded or suggested, can the judge direct the jury that the words are capable of one meaning but not of another? The point is important here because the defendant admits that the words are defamatory in one sense but disputes that they are defamatory in the senses pleaded in the statement of claim and contends that the judge should have so directed the jury. Mr. Milmo and Mr. Duncan appear at one time to have argued in the Court of Appeal that the function of the judge was exhausted when he ruled that the words were capable of being defamatory and that it was not for him to inquire whether they were or were not capable of any particular defamatory meaning. But later they abandoned the point and therefore did not initiate the discussion of it here. Nevertheless there was considerable discussion of it because some of your Lordships at one time felt that it was a point which ought to be considered.
In the result I think that all your Lordships are now clearly of the opinion that the judge must rule whether the words are capable of bearing each of the defamatory meanings, if there be more than one, put forward by the plaintiff.
This supports indirectly my view on the desirability of pleading different meanings. If the plaintiff can get before the jury only those meanings which the judge rules as capable of being defamatory, there is good reason for having the meanings alleged set out precisely as part of the record.
For the reasons I have given earlier, I agree that there must be a new trial on the ground of misdirection: but I should in any event have considered that there should be a new trial on the issue of damages as they are, in my opinion, ridiculously out of proportion to the injury suffered.Appeal dismissed. (F. C. )