Rubber Improvement Ltd v Daily Telegraph Ltd

[1964] AC 234

---

(Judgment by: Lord Morris of Borth-Y-Gest)

Rubber Improvement Ltd
vDaily Telegraph Ltd

Court:

Judges:
Lord Morris of Borth-Y-GestLord Hodson
Lord Devlin
Lord Reid
Lord Jenkins

Hearing date:
Judgment date: 26 March 1963

---

Judgment by:
Lord Morris of Borth-Y-Gest

stated the facts, summarised the pleadings, read what Salmon J. said on the submission that the innuendoes should be withdrawn from the jury and said that paragraph 4 of the statement of claim must be regarded as pleading an innuendo in the strict sense and that before the House of Lords it was common ground that the fact that certain meanings were alleged by way of innuendo did not debar the plaintiffs from contending that those words were in fact the direct or ordinary or primary meaning of the words. He continued: It is clearly settled that an innuendo constitutes a cause of action separate from the libel itself, and in respect of which a separate verdict should be returned and separate damages (if to be awarded) should be assessed. (See Sim v. Stretch and Watkin v. Hall. Unless the court otherwise permits, any payment into court referable to an innuendo must be a separate payment.

The words of the judge show that he fully appreciated the difficulty that faced the pleader and that he considered that the pleading of innuendoes had really been unnecessary. That was because the innuendoes did not go beyond the meanings that the plaintiffs said were conveyed by the words of the libel. The effect of what the judge did was that the case proceeded on the footing that the paragraphs should be treated as being no more than paragraphs which recorded what the plaintiffs submitted were the ordinary meanings of the words. The paragraphs were, however, in form and must be regarded as being in fact, paragraphs which pleaded innuendoes. That being so, if the judge took the view that no extrinsic facts were proved which could support an innuendo he should, I think, have said in direct terms that he was not leaving any innuendo in its true sense to the jury, and instead of refusing the application should have, at least to some extent, acceded to it. If he was prepared to allow the paragraphs to remain in some form he should perhaps have required that they be amended so that they were no longer paragraphs which pleaded innuendoes. But the case went on just as though he had done that. The paragraphs were treated as though they did not contain innuendoes in a true sense. They were regarded as being of the style of paragraphs which in pleadings before the introduction of Ord. 19, r. 6 (2) , used the word "innuendo" in a more general way and not in its strict or technical sense. So no harm to the respondents resulted from the ruling of the judge. The case continued in spite of the actual language of his ruling, just as the respondents suggested that it should proceed. No innuendo (using that word in its strict sense) was in fact left to the jury. The summing-up directed the jury to consider what the words themselves meant and conveyed. Had the judge left an innuendo to the jury he would have had to require the jury to deal with it as a separate issue. His words show that he regarded the paragraphs as harmless paragraphs which had not hurt the defendants but had perhaps helped them by forewarning them as to what the plaintiff said that the words meant. He did, however, consider that the words complained of were of and by themselves capable of bearing the meanings alleged by the plaintiffs, and he left it to the jury to say what they thought that the words meant. Here I think (apart from the issues concerning the damages) is the real issue in the case. Was the judge right in deciding (as he implicitly did) that the words were capable of bearing all the alleged meanings? Once the judge had reached that conclusion, then any question as to innuendoes seems to me to have dropped out of the case.

Where a plaintiff brings an action for libel he may sustain his case (where there is a trial with a jury) if the judge rules that the words, in what has been called their natural and ordinary meaning (or their "ordinary" meaning - see Ord. 19, r. 6 (2)) are capable of being defamatory, and if the jury find that they are defamatory. A plaintiff may, however, sustain his case in a different way. He may plead an innuendo. He may establish that because there were extrinsic facts which were known to readers of the words, such readers would be reasonably induced to understand the words in a defamatory sense which went beyond or which altered their natural and ordinary meaning, and which could be regarded as a secondary or as an extended meaning. The nature of an innuendo (using that word in its correct legal sense) has recently been reviewed in the valuable judgments delivered in the Court of Appeal in Grubb v. Bristol United Press Ltd. A defamatory meaning which derives no support from extrinsic facts but which is said to be implied from the words which are used is not a true innuendo. If there are some special extrinsic facts the result may be that to those who know them words may convey a meaning which the words taken by themselves do not convey.

In the present case I am disposed to agree with the Court of Appeal that no extrinsic facts were proved which yielded the necessary support to sustain an innuendo. This, however, became a matter of no consequence in the case, for if the meanings alleged in the pleaded innuendo were no more than the meanings expressed or conveyed by, or to be implied from, the words themselves, then there was no need to plead innuendoes. It was not really being alleged that the words were used in a defamatory sense other than their ordinary meaning.

Though the two paragraphs 4 were undoubtedly pleaded as innuendoes, once it was clear that the contention of the plaintiffs was that the words themselves would be understood by ordinary readers to be conveying and expressing the meanings recorded in those paragraphs, then the case for the plaintiffs was direct and straightforward and was not in any way advanced or assisted by any mention of an innuendo. Though the paragraphs were not struck out, the only significance of their remaining was that they usefully contained and recorded the ordinary meanings which the plaintiffs said were conveyed by the words printed in the newspaper. It followed that it was quite unnecessary for the judge to tell the jury what an innuendo was, or even to use the word (and he did not) or to leave any issue or question to them concerning an innuendo. The question left to the jury - within the limits of the meanings which the judge regarded the words as being capable of bearing - was as to what they thought ordinary people would consider that the words meant.

In a case where there is no innuendo pleaded, it is not essential for a plaintiff to record and define in his pleadings what he says are the ordinary or direct or natural or implied meanings of the words. If, however, he does do so (as may often be helpful provided it is made clear what is being done), and if the judge considers that the words are not capable of bearing any one or more of such meanings, he ought so to rule. If the plaintiff does not do so, the various meanings suggested by the plaintiff will almost invariably be canvassed during the trial, and if the judge considers that the words are not capable of bearing any one or more of them, again he ought so to rule.

It is of some importance to consider how the issues in the case rested. Publication of the words complained of was admitted. The separate plaintiffs (the company and Mr. Lewis) claimed and the defendants denied that in their natural and ordinary meaning the words meant what was set out in the two paragraphs. It was not denied by the defendants and it was therefore tacitly admitted that the words in their natural and ordinary meaning were defamatory of the plaintiffs, but the defendants' contention was that in their natural and ordinary meanings the words only meant that there was an inquiry by the City of London Fraud Squad. The defendants' plea of justification was accordingly and for that reason limited to that meaning which was the only defamatory meaning that they said that the words bore. They said that there had been an inquiry. The plaintiffs said that there had not been anything that could be called an inquiry or that the defendants had not proved that there had been such an inquiry. The defendants pleaded in mitigation of damages that on December 24, 1958, they published a statement by Mr. Lewis expressing his view of the facts, and they also pleaded that the plaintiffs had claimed damages for the same or a similar libel from Associated Newspapers Ltd.

If the learned judge was correct in holding that the words were capable of bearing the meanings that the affairs of the company or its subsidiaries were conducted fraudulently or dishonestly or that the personal plaintiff had been guilty of fraud or dishonesty in connection with the affairs of the company or its subsidiaries, then I see no grounds for criticism of his summing-up on the issues of liability. He invited the jury to decide what they thought ordinary reasonable people would consider the words to mean. Having regard to the guidance given by Lord Selborne L.C. in his speech in Capital and Counties Bank Ltd. v. Henty & Sons that was, I think, an entirely correct approach. Lord Selborne said: "The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense." See also the words of Lord Blackburn.

My Lords, words are but instruments which men use to express and convey their meanings. The learned judge asked the jury to say what meanings the words in question would convey, not to people with some special or particular knowledge, but just to ordinary men and women going about their ordinary affairs. It is in this sense that in defamation cases the phrase "natural and ordinary meaning" (which may include an implied or indirect meaning) is used. Not resting upon any technical process of analysis or construction, nor upon a process of critical reading, the inquiry is as to what meanings are conveyed to hearers or readers by the medium of words. This is a matter for the jury, though a jury must not be asked to consider a meaning which the words in question are not reasonably capable of bearing.

It was said in the Court of Appeal that the learned judge had failed to remember that the defendants were admitting that the words, in what they said was their only natural meaning, were defamatory. I do not think that there is any substance in this, for the learned judge asked the jury whether, if the words bore the very limited meaning contended for by the newspaper, they considered that the words were justifiable as being true: the necessity to consider the defence of justification would only arise on the basis that the words were defamatory, and there is no reason to think that the judge was either under a misapprehension or that he need have said more to the jury than he did. He put very fairly before the jury the rival contentions as to what the words meant. We do not know exactly what the jury decided that the words meant because with the assent of both sides only the one question set out above was left to them. As it is important to see how the matter was put to the jury, I venture to quote the words of the learned judge: [His Lordship read the summing-up and continued:]

My Lords, I turn to consider the question whether the words were capable of bearing the meaning that the affairs of the company and/or its subsidiaries were conducted fraudulently or dishonestly. I do not understand any of your Lordships to be of the view that the words were not capable of bearing the meaning that the police suspected that the affairs of the company or its subsidiaries were conducted fraudulently or dishonestly: nor did I understand any submission to be made that the words were not so capable.

It is a grave thing to say that someone is fraudulent. It is a different thing to say that someone is suspected of being fraudulent. How much less wounding and damaging this would be must be a matter of opinion depending upon the circumstances. Similarly in the case of the personal plaintiff the submission is made that the words, while capable of bearing some of the alleged meanings, were not capable of bearing the meanings that Mr. Lewis had been guilty of fraud or dishonesty in connection with the affairs of the company or its subsidiaries or had caused or permitted the affairs to be conducted fraudulently or dishonestly. My Lords, the only question that now arises is not whether the words did bear but whether they were capable of bearing the meanings to which I have referred. What could ordinary reasonable readers think? Some, I consider, might reasonably take the view that there was just an inquiry to find out whether or not there had been any fraud or dishonesty. Some, I consider, might reasonably take the view that the words meant that there was an inquiry because the police suspected that there had been fraud or dishonesty. Some, I consider, might reasonably take the view that the words meant that there was an inquiry because there had been fraud or dishonesty which occasioned or required inquiry by the police. Some, I consider, might reasonably take the view that the words meant that the inquiry was either (a) because there had been fraud or dishonesty or (b) because of a suspicion that there had been.

My Lords, it is not for me to say what I think was the meaning which the words conveyed to the ordinary reasonable reader of a newspaper, nor is it for me to express any opinion as to what conclusion a jury should reach as to this matter, but I do not consider that that meaning which involved that there had been fraud or dishonesty was a meaning which the jury should have been prohibited from considering on the basis that it was a meaning of which the words were not capable. I do not think that it can be said that twelve jurors could not reasonably have come to the conclusion that the words bore the meaning now being considered. In using this language I am following the approach suggested by Lord Porter in his speech in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. See also Nevill v. Fine Art & General Insurance Co. Ltd.

My Lords, a reasonable reader will probably be a fair-minded reader. The fair-minded reader would assume that a responsible newspaper would also be fair. If there was some private police inquiry in progress, the purpose of which was to ascertain whether or not there had been fraud or dishonesty, what possible justification could there be for proclaiming this far and wide to all the readers of a newspaper? If confidential information was received to the effect that there was a police inquiry, on what basis could the publishing of such information be warranted? There is no suggestion that the police had asked that any notice should be published. Under certain circumstances a newspaper may enjoy qualified privilege if it publishes a notice issued for the information of the public by or on behalf of a chief officer of police. (See section 7 of the Defamation Act, 1952 .) If there was a police inquiry by a "Fraud Squad" which might result in the conclusion that any suspicion of fraud or dishonesty was wholly unwarranted, how manifestly unfair it would be to make public mention of the inquiry. What purpose could there be in doing so? With these thoughts and questions in his mind, a reasonable reader might well consider that no responsible newspaper would dare to publish, or would be so cruel as to publish, the words in question unless the confidential information, which in some manner they had obtained, was not information merely to the effect that there was some kind of inquiry in progress but was information to the effect that there was fraud or dishonesty. Some reasonable readers might therefore think that the words conveyed the meaning that there must have been fraud or dishonesty.

Furthermore, a reasonable reader might reflect that while the police may be concerned with inquiries as to whether some crime has or has not been committed, they are probably more often only concerned after a crime has been committed. They have to inquire whether they possess the necessary evidence for the launching of a prosecution. Reasonable readers might also think that inquiries into the affairs of a company if such inquiries were not concerned with fraud or dishonesty would not be conducted by the police at all. They would be conducted by persons or departments having no connection with the City of London Police Fraud Squad. Some of such readers might therefore be led to believe that if there was an inquiry by the City of London Fraud Squad, which a newspaper felt justified in mentioning, it must have been an inquiry to collect and marshal evidence in order to launch a prosecution for some offences involving fraud or dishonesty which had been committed.

My Lords, it was for the jury to determine what they considered was the meaning that the words would convey to ordinary men and women: we have only to decide as to the limits of the range of meanings of which the words were capable. For the reasons that I have given I have the misfortune to differ from your Lordships as to this very important part of the case. I consider that the learned judge was fully entitled to leave the matter to the jury in the way in which he did, and I consider that his directions concerning liability were clear and correct and fair.

My Lords, in the consolidated action against the "Daily Mail" a similar issue arises to that which I have been discussing.

On the difficult issue as to damages I do not differ from your Lordships or from the Court of Appeal that the awards of damages were excessive and cannot stand. This issue was fully debated and the relevant evidence was carefully examined. As there must be new trials. I do not think that there is need to say more in regard to this matter. I would wish to add that having had the privilege of reading in advance the speech which has been delivered by my noble and learned friend, Lord Reid, I am in agreement with his observations in regard to section 12 of the Defamation Act, 1952 , and in regard to the extent of any relevance of the case of British Transport Commission v. Gourley.

Because I do not dissent on the issue as to damages I agree that there must be new trials and that therefore the appeals should be dismissed.