Rubber Improvement Ltd v Daily Telegraph Ltd
[1964] AC 234(Judgment by: Lord Hodson)
Rubber Improvement Ltd
vDaily Telegraph Ltd
Judges:
Lord Morris of Borth-Y-Gest
Lord HodsonLord Devlin
Lord Reid
Lord Jenkins
Judgment date: 26 March 1963
Judgment by:
Lord Hodson
My Lords, in these actions large damages were awarded to the plaintiff, Mr. Lewis, and to the company, Rubber Improvement Ltd., of which the first plaintiff is the managing director. In the first pair of actions, which were consolidated with one another, the "Daily Telegraph" was the defendant, in the second pair, likewise consolidated, Associated Newspapers Ltd., proprietors of the "Daily Mail," were defendants.
The pairs of actions were tried separately, no step being taken to have them consolidated, although the language of the libels is similar and each defendant is a newspaper having a wide national circulation. [His Lordship read the words complained of, stated the result of the actions and continued:]
The Court of Appeal ordered a new trial, holding that in any event the damages were so excessive that no reasonable jury could have awarded so large a figure, and that there was a misdirection on the part of the trial judge in respect of the meaning of the libels.
The defendants did not deny that the words complained of were defamatory of the plaintiffs. They justified the words as true in their natural and ordinary meaning, and denied that they bore any of the meanings which they were said to bear by innuendo, in effect that the plaintiffs were guilty or suspected by the police of fraud or dishonesty in connection with the affairs of the company or its subsidiaries.
The appellants recognise that in awarding such large damages on each trial the juries must have taken the view that the words of which they complain meant that they had been actually guilty of fraud, a meaning which the defendants have throughout disclaimed.
No one doubts that it is for the jury to decide the meaning of words not as a question of pure construction but as a question of fact, as Lord Tenterden C.J. put it in Harvey v. French, to be read "in the sense in which ordinary persons, or in which we ourselves out of court ... would understand them." Whether the words are capable of defamatory meaning is for the judge, and where the words, whether on the face of them they are or are not innocent in themselves, bear a defamatory or more defamatory meaning because of extraneous facts known to those to whom the libel has been published, it is the duty of the judge to rule whether there is evidence of such extraneous facts fit to be left to the jury.
It is in conjunction with secondary meanings that much of the difficulty surrounding the law of libel exists. These secondary meanings are covered by the word "innuendo," which signifies pointing out what and who is meant by the words complained of. Who is meant raises no problem here, but what is meant is of necessity divided into two parts much discussed in this case. Libels are of infinite variety, and the literal meaning of the words, even of such simple phrases as "X is a thief", does not carry one very far, for they may have been spoken in play or other circumstances showing that they could not be taken by reasonable persons as imputing an accusation of theft. Conversely, to say that a man is a good advertiser only becomes capable of a defamatory meaning if coupled with proof, for example, that he was a professional man whose reputation would suffer if such were believed of him.
The first subdivision of the innuendo has lately been called the false innuendo as it is no more than an elaboration or embroidering of the words used without proof of extraneous facts. The true innuendo is that which depends on extraneous facts which the plaintiff has to prove in order to give the words the secondary meaning of which he complains.
The classic example is to be found in Barham v. Nethersal, referred to by De Grey C.J. in Rex v. Horne in the following passage relating to a charge of criminal libel: "But as an innuendo is only used as a word of explanation, it cannot extend the sense of the expressions in the libel beyond their own meaning; unless something is put upon the record for it to explain. As in actions upon the case against a man for saying of another, 'He has burnt my barn' ( Barham's case , the plaintiff cannot there, by way of innuendo, say, meaning 'his barn full of corn'; because that is not an explanation of what was said before, but an addition to it. But if in the introduction it had been averred, that the defendant had a barn full of corn, and that in a discourse about that barn, the defendant had spoken the words charged in the libel of the plaintiff; an innuendo of its being the barn full of corn would have been good: for by coupling the innuendo in the libel with the introductory averment, 'his barn full of corn,' it would have made it complete."
The innuendo in this case was set out in the statement of claim as a separate paragraph and was or purported to be a true innuendo, for the plaintiff gave particulars pursuant to R.S.C., Ord. 19, r. 6 (2) , of the facts and matters which he relied upon in support of a sense other than the ordinary meaning. It is plain on the authorities that since the Common Law Procedure Act, 1852 , which did away with the necessity for a prefatory averment showing the sense in which words were used and enacted by section 61 that "where the words or matter set forth, with or without the alleged meaning, show a cause of action, the declaration shall be sufficient," the true innuendo has been treated as a separate cause of action from that which arose from the words in their natural and ordinary meaning (with or without inferential meanings commonly called false innuendoes). See per Blackburn J. in Watkin v. Hall and per Lord Atkinson in Sim v. Stretch.
After the passing of the Common Law Procedure Act until the year 1949 when Ord. 19, r. 6 (2) , came into force there was in many cases no distinction to be found between the true and the false innuendo. No special facts had to be pleaded to support the innuendo and the distinction became blurred between the true innuendo and that which was very often nothing but a wordy explanation or attempted explanation of the words complained of in their natural and ordinary meaning.
This blurring is manifest in the pleadings of the plaintiff here, for it contains the plaintiff's contention as to the natural and ordinary meaning of the words complained of, that is to say that they mean that he and his company were fraudulent or suspected of fraud, and it is at the same time supported by particulars given under Ord. 19, r. 6 (2), as of a true innuendo. As the Court of Appeal found, and I have no doubt they were right, the particulars did not show, nor was any evidence given of, extraneous facts in support of the innuendo and accordingly the innuendo should not have been left to the jury. Although the innuendo was not pleaded in the alternative, yet, as the Court of Appeal held, in my opinion quite rightly, this did not prevent the plaintiffs seeking to show, if they could, that the natural and ordinary meaning of the words complained of was to the same effect. To hold otherwise and not to permit the jury to impute to the ordinary meaning of the words any part of the failed innuendo would, as Holroyd Pearce L.J. pointed out, have the effect of removing the jury's decision on whether the words are in their ordinary sense a libel into an unreal technical and artificial sphere.
I agree with the observations of Upjohn L.J. in Grubb v. Bristol United Press Ltd. to the effect that Ord. 19, r. 6 (2), makes no alteration in the law except in cases where a true innuendo is pleaded. A pleader is entitled to allege in his statement of claim what the words in their natural and ordinary meaning convey, provided he makes it clear that he is not relying upon a true innuendo which gives a separate cause of action and requires a separate verdict from the jury. It is desirable that he should do so, for where there is no true innuendo the judge should define the limits of the natural and ordinary meaning of the libel and leave to the jury only those meanings which he rules are capable of being defamatory. If the natural and ordinary meaning is pleaded the defence will know what the contentions of the plaintiff are and the judge will not have to analyse the submissions of counsel in his charge to the jury without having the benefit of a pleading setting out what those submissions are.
There is no conflict, in my opinion, between the decisions of the Court of Appeal in Grubb's case and in Loughans v. Odhams Press Ltd. when properly understood, as indeed was pointed out by Upjohn L.J. in the former case. The difficulty arises from some words (perhaps unguarded) used by Diplock L.J. in Loughans' case and cited by Davies L.J. in Grubb's case to the effect that the plaintiff may require a verdict from a jury as to whether the words bear a special defamatory meaning even though he had led no evidence of facts and matters on which he relies other than the words themselves as giving rise to the meaning alleged in the innuendo. This, I agree with Davies L.J., he cannot do. There is one cause of action based on the words in their natural and ordinary meaning and another based on the words in such meaning as may be alleged in a true innuendo, but not a third cause of action based on the false innuendo.
The defendants having admitted that the words are defamatory in their ordinary meaning have always maintained that their ordinary meaning does not go so far as to include actual guilt of fraud. They have sought to justify by proving that an inquiry was in fact held, not by proving actual suspicion of fraud.
This is the gist of the whole case. Salmon J., who tried both pairs of actions, took the view that the words were capable of imputing guilt of fraud. Davies L.J. was inclined to the same opinion, and my noble and learned friend, Lord Morris of Borth-y-Gest, has expressed the same opinion as Salmon J. Holroyd Pearce L.J. and Havers J. took the contrary view. In view of this difference of judicial opinion, one naturally hesitates before expressing a concluded opinion of one's own, but after listening to many days of argument I am myself satisfied that the words cannot reasonably be understood to impute guilt. Suspicion, no doubt, can be inferred from the fact of the inquiry being held if such was the case, but to take the further step and infer guilt is, in my view, wholly unreasonable. This is to draw an inference from an inference and to take two substantial steps at the same time.
The distinction between suspicion and guilt is illustrated by the case of Simmons v. Mitchell which decided that spoken words which convey a mere suspicion that the plaintiff has committed a crime punishable by imprisonment will not support an action without proof of special damage.
It has been argued before your Lordships that suspicion cannot be justified without proof of actual guilt on the analogy of the rumour cases such as Watkin v. Hall. Rumour and suspicion do, however, essentially differ from one another. To say something is rumoured to be the fact is, if the words are defamatory, a republication of the libel. One cannot defend an action for libel by saying that one has been told the libel by someone else, for this might be only to make the libel worse. The principle as stated by Blackburn J. in Watkin v. Hall is that a party is not the less entitled to recover damages from a court of law for injurious matter published concerning him because another person previously published it. It is wholly different with suspicion. It may be defamatory to say that someone is suspected of an offence, but it does not carry with it that that person has committed the offence, for this must surely offend against the ideas of justice which reasonable persons are supposed to entertain. If one repeats a rumour one adds one's own authority to it and implies that it is well founded, that is to say, that it is true. It is otherwise when one says or implies that a person is under suspicion of guilt. This does not imply that he is in fact guilty but only that there are reasonable grounds for suspicion, which is a different matter.
Having reached the conclusion that the innuendo should not have been left to the jury as a separate issue and that the natural and ordinary meaning of the words does not convey actual guilt of fraud, I agree with the Court of Appeal that there must be a new trial, for the learned judge left the question to the jury "Did they find for plaintiffs or defendants?" without a direction that the words were incapable of the extreme meaning which I have rejected.
I would not but for this misdirection as to the meaning of the words, have thought a new trial should be ordered simply because the innuendo was wrongly left to the jury, for no harm would have been done if there had been no misdirection as to the meaning of the words. The vital misdirection was as to the meaning which the plaintiffs sought to ascribe to the words. As to this, in a Scottish case, Stubbs Ltd. v. Russell, Lord Kinnear said: "The law is perfectly well settled. Before a question of libel or slander is submitted to a jury the court must be satisfied that the words complained of are capable of the defamatory meaning ascribed to them. That is a matter of law for the court." This is also the law of England: compare English and Scottish Co-operative Properties Mortgage and Investment Society Ltd. v. Odhams Press Ltd., a case where there was a long paragraph of innuendoes suggesting various meanings to be attributed to the words complained of but no true innuendo supported by extrinsic facts. All the innuendo meanings were left to the jury and both Slesser L.J. and Goddard L.J. referred to the duty of the judge to withdraw meanings from the jury if the words are incapable of bearing such meanings.
I have mentioned this last point because at one stage of the argument it seemed that it might be contended that once the judge had ruled the words were capable of "any" as opposed to "the" defamatory meaning ascribed to them the jury were masters of the situation, but the contention I have adumbrated was not advanced before your Lordships and was expressly disclaimed by counsel in the course of the hearing before the Court of Appeal.
The responsibility of the judge to exclude a particular meaning which the plaintiff seeks to ascribe to words in their natural or ordinary meaning is, I think, clearly established by the decision of this House in Capital and Counties Bank Ltd. v. Henty & Sons. Henty & Sons had sent out a circular to a number of their customers giving notice that they would not receive in payment cheques drawn on any of the vouchers of the bank. There was no evidence to support the innuendo that the words imputed insolvency to the bank, and it was held that in their natural and ordinary meaning the words were not libellous. Lord Blackburn said : "Since Fox's Act at least, however the law may have been before, the prosecutor or plaintiff must also satisfy a jury that the words are such, and so published, as to convey the libellous imputation. If the defendant can get either the court or the jury to be in his favour, he succeeds. The prosecutor, or plaintiff, cannot succeed unless he gets both the court and the jury to decide for him."
Since, in my judgment, there must be a new trial in order that the jury in each pair of cases may be directed as to the natural and ordinary meaning of the words published in the two newspapers, I need say nothing on the question of damages except that I agree with the Court of Appeal that the damages were in each case so excessive that they cannot be allowed to stand. I also agree that as a result of the decision of your Lordships' House in British Transport Commission v. Gourley, the jury in each case so far as the plaintiff company is concerned should have been directed that, since a company can only suffer in its pocket by loss of revenue attributable to a libel, so regard must be had to the fact that the profits of the company will in large measure be passed on to the Revenue and not retained for the benefit of the shareholders.
I am further of opinion that a direction should be given to the jury as to the effect of section 12 of the Defamation Act, 1952 , which enables other claims by the plaintiffs to be disclosed to the jury with the object of preventing compensation being given twice over for the same libel, so that the jury should be directed to apply themselves to the injury inflicted in the particular case.
I would dismiss the appeal.