England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE QBENI 98/0350/1

IN THE COURT OF APPEAL (CIVIL DIVISION )

(MR JUSTICE POPPLEWELL )

Royal Courts of Justice

Strand

London W2A 2LL

Wednesday 22nd July 1998

B e f o r e

LORD JUSTICE STUART-SMITH

LORD JUSTICE BROOKE

SIR JOHN KNOX

(1) TOM CRUISE

(2) NICOLE KIDMAN Respondents

v.

(1) EXPRESS NEWSPAPERS PLC

(2) RICHARD ADDIS Appellants

(Handed down transcript of

Smith Bernal Reporting Limited, 180 Fleet Street

London EC4A 2HD Tel: 0171 421 4040

Official Shorthand Writers to the Court)

MR PATRICK MOLONEY QC (instructed by Messrs Henry Hepworth) appeared on behalf of the Appellants (Defendants).

MISS ADRIENNE PAGE (instructed by Messrs Olswang) appeared on behalf of the Respondents (Plaintiffs).

J U D G M E N T

(As approved by the court)

©Crown Copyright

LORD JUSTICE BROOKE: This is an appeal by the defendants against a judgment of Popplewell J on 9th March 1998. On an application by the defendants under Order 82 Rule 3A he refused to strike out all but one of the plaintiffs’ pleaded meanings in their Statement of Claim in this libel action, and on an application by the plaintiffs he ordered that the plea of justification contained in paragraphs 6 and 7 of the Defence should be struck out. The plaintiffs have served a Cross-Notice asking for the judge’s order to be affirmed on additional grounds, and seeking to reinstate the pleaded meaning which the judge struck out.

Appeals against orders made by judges pursuant to the new jurisdiction under Order 82 Rule 3A have been before this court on two recent occasions. In Hinduja v Asia TV Ltd (CAT 25th November 1997) Hirst LJ pointed out that this new rule was intended to lay down a swift and inexpensive procedure in chambers to eliminate meanings which the words are plainly incapable of bearing. He said that he would strongly wish to discourage appeals under this rule, on which the decision seemed to him to be essentially within the province of the judge in chambers. In a differently composed division of the court in Geenty v Channel 4 TV Corporation (CAT 13th January 1998) the same lord justice said that he did not in any way resile from that general approach, but he suggested that the Court of Appeal should be a little less reluctant to interfere with a judge’s decision in a case in which he had ruled that a meaning relied upon was ruled out once and for all, since there would then be no opportunity for a jury to make the final decision. This approach is now well settled in the jurisprudence of this court, which is not willing to allow disgruntled litigants to make this useful new rule a fertile playground for libel lawyers. I hope that this message may be picked up by the editors of the Supreme Court Practice in a note to this Rule, and that judges may be unwilling to grant leave to appeal against their rulings under Order 82 Rule 3A (and in particular their rulings that the words pleaded are capable of bearing the meaning or meanings relied upon) except in cases which are clearly fit for further argument in this court.

The plaintiffs are a well known film actor and a well known film actress. The article of which they make complaint appeared in the magazine section of The Express on Sunday on 5th October 1997. The magazine has on the front of it a photograph of the female plaintiff called “Thrill Seeker. Nicole Kidman turns all-action babe”. On most of pages 14 to 16 there is an article by Jenny Cooney in flattering terms in which she describes Nicole Kidman’s life story and her role in a new film called The Peacemaker which was to open shortly. The second half of page 15, however, is taken up with a very much less flattering article about the two plaintiffs headed: “Cruising for a bruising ... What’s the inside story on Hollywood’s Golden Couple? Ashley Bart-Powell investigates.”

The plaintiffs set out the whole of this article in the Statement of Claim. It is in the following terms:

"‘Nicole bans brickies from eyeing her up’ said the papers last year. Not much of a story, really: the Cruises had the builders in to do a little work on their LA mansion and Nicole ordered the hapless hodwielders to turn and face the wall as she passed. Quite natural, of course; you and I would do the same thing. They were brickies, after all, so they ought to be facing the wall. Probably that was the only way the poor girl could get any work out of them. But it was just too good a story to miss.

Ever since she burst upon the scene in the timeless Aussie epic BMX Bandits , an electro-permed proto-Kylie (below), people have wanted to know the inside story. Her flawless looks and lustrous hair are perhaps a provocation to gnarled pressmen at the opposite end of the aesthetic spectrum. Nicole, poor girl, has always made good copy.

Since she married himbo hunk Tom Cruise and the couple inaugurated themselves as Hollywood royalty - not difficult when the competition is led by Bruce ‘n’ Demi - there has been a persistent trickle of speculation. Their failure to produce offspring (like everyone else in uptown LA, they adopted some poor children) set Hollywood tongues wagging. He was gay, they said; he was impotent; she was gay. The whole marriage thing was no more than a business arrangement, they sniggered, and, most sinister of all, the wedding had been ordered by the Church of Scientology, which was keen to establish the couple as a beacon of clean living and an example to the young.

Scientology has become the religion of choice in A-list Hollywood, and the Cruises are very keen on it. The only one of the world’s major faiths whose founder is called Ron, its adherents include such models of continence and rectitude as Lisa Marie Presley and Kirstie Alley.

The most famously devoted of L Ron Hubbard’s disciples is, of course, John Travolta. Only last month the porky jiver was up before a US congressional hearing to complain that the Germans had been beastly to his fellow Hubbard-lovers. Tom and Nicole won’t talk about their faith, of course. In fact, they won’t talk about their private life at all. Loftily outraged by the tittle-tattle, they have clammed up. That, sadly, is always the green light for gossips. Refusing to dignify most of the insinuations with a denial, Cruise made a furious exception for suggestions that he is infertile. No one accuses Top Gun of firing blanks. Cruise launched a £40m lawsuit, his lawyer resonantly declaring that ‘Tom Cruise is not sterile. He has normal sperm.’ The public was greatly reassured.

The Scientology connection might give the couple an opportunity to hit back at those who feed the public’s curiosity. ‘Truth and Accuracy in the Media’, a scientologist organisation dedicated to slapping journalistic wrists, has been surpassed, if recent reports are correct, by the efforts of three unnamed movie stars to dig the dirt on newspaper editors by hiring their own team of investigators. Any suggestions that a pocket-sized action man and his towering Australian escort might have had a hand in this are, of course, malicious rumour.

So is any of it true? Is Nicole really a head taller than Tom? There’s one way to find out. Scientologists’ favourite trick is to wire themselves up to an ‘E-meter’, a device rather like a lie detector, invented by L Ron Hubbard (who else?). This contraption promises to reveal whether the subject is suppressing emotions. When the needle flickers, he or she is invited to talk about what dark secret is producing the charge. One day, perhaps, Tom and Nicole will wire themselves up and invite the gentlemen of the press along to watch.”

In paragraph 4 of the Statement of Claim the plaintiffs pleaded:

“4 In their natural and ordinary meaning, and juxtaposed with Jenny Cooney’s article on the same page, the words complained of in paragraph 3.2 hereof meant and were understood to mean that the real ‘inside story’ on the plaintiffs is -

4.1 that the second plaintiff is someone who arrogantly ordered building workers at her home to turn and face the wall as she passed;

4.2 that, far from being the ‘golden couple’ that they seek to portray, the ‘Hollywood royalty’ in which they have cast themselves, and the ‘great love match’ suggested by the second plaintiff in her interview with Jenny Cooney, the likely truth is that their marriage is a hypocritical sham, there being good reasons to believe that it is a cover for the homosexuality of one or both of them and/or a cynical business arrangement and/or a marriage ordered by the Church of Scientology so that the Scientologists might dishonestly hold up the plaintiffs as an example to the young;

4.3 that there are good reasons to believe that the first plaintiff’s failure to father children is attributable to impotence and/or sterility and his vehement public denial of sterility probably a lie;

4.4 that the ‘plaintiffs adopted some poor children’ because it is the fashion in ‘uptown LA’;

4.5 that the plaintiffs have almost certainly been involved in hiring a team of investigators to dig the dirt on newspaper editors, something in respect of which, one can confidently predict, there will be a disingenuous denial from them attributing the claim to malicious rumour;

4.6 that by reason of 4.2, 4.3, 4.4 and 4.5 above, there are good reasons to regard the plaintiffs and each of them as hypocrites, frauds and liars;

4.7 that short of seeing the plaintiffs perform under a lie detector test, or something equivalent, nothing that the plaintiffs say or portray about themselves, including in the second plaintiff’s interview with Jenny Cooney, should be trusted.”

This is said to be a bane and antidote case (see Chalmers v Payne [1835] 2 Cr M&R 156). Under the law of defamation, if something disreputable to a plaintiff is stated in one part of a publication, but this stain is removed in another part of the same publication, the bane and antidote must be taken together when a court is asked to consider whether the publication is defamatory of the plaintiff.

The defendants’ first complaint is that the judge misdirected himself in concluding that the Court of Appeal had laid down in Mitchell v Faber and Faber (CAT 24th March 1994) that as a matter of principle the question of bane and antidote should necessarily be left to the jury. The judge had quoted the following passage from the judgment of Hirst LJ in that case (transcript, p 17):

"So far as the antidote is concerned, it seems to me that only in the clearest of cases would it be proper for a judge to rule that the sting of words, which are ex hypothesi capable of defamatory meaning in themselves, is drawn by the surrounding context so that in the result those words cease to be capable of a defamatory meaning. In my judgment the general, though perhaps not universal rule should be that this is matter for the jury and not for the judge to decide.”

The judge then commented:

"While I am bound by that view, it seems to me that it is for the judge in my position to decide as a matter of impression whether the bane has been removed by the antidote. I confess some unease at the suggestion that as a matter of principle it should necessarily be left to the jury, but that is what Hirst LJ said, with which the other judges agreed.”

The judge then went on to reject the first meaning pleaded, a matter to which I will return, and then went on:

"So far as the other matters are concerned, Mr Moloney says that it is quite clear that, so far as the allegation of homosexuality is concerned, there has been a clear disclaimer. The suggestion that they are gay is not borne out, it is said, by the article. If the suggestion is made there, then it is refuted and, in any event, it may well be that to say he was impotent or he was gay and she was gay is not of itself defamatory. I do not, I am afraid, accept that. It seems to me that it is capable of having a defamatory meaning. I do not think the fact that there is some sort of disclaimer and/or that the whole of the rest of the main article is a favourable one is sufficient antidote to the bane which appears in this particular offending article. In the end, it is very much a matter of impression and is not capable, I do not believe, of any very elaborate argument. So, in my judgment, [as to] paras 4.2 and 4.3, the article is capable of bearing those meanings.

So far as the ‘adopted poor children’ is concerned, I have some greater doubt about that because it is in the context of the failure to produce offspring. But there is a suggestion that it is fashionable in uptown LA and that is capable of having the meaning alleged which is a defamatory meaning.

So far as the business of the investigators is concerned, Mr Moloney says that while it is capable of involving the plaintiffs hiring investigators, it is not defamatory of itself. I do not take that view. It seems to me that the use of the phrase ‘ malicious rumour’ gives weight to the suggestion that that is capable of have a defamatory meaning.

Finally, so far as the lie detector is concerned, again it is capable of suggesting that the plaintiffs are not people to be trusted."

I see no reason to suppose that whatever the judge may have meant by his throwaway comment in an ex tempore judgment, he did not in fact consider whether this might be one of those rare cases in which it is open to a judge to consider that the alleged antidote so obviously extinguishes the alleged bane that there is no issue which can properly be left to a jury. But that that would be a rare situation is well established by persuasive authority. In addition to the judgment of Samuels JA in the Court of Appeal of New South Wales in Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) (which Hirst LJ quoted in Mitchell), that court returned to the same topic in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669. Hutley JA said at p 670:

"There being no doubt that if portions of the material published stood alone, the plaintiff/appellant would have been defamed, it is only if the whole of the material published does not permit of a defamatory meaning that there is no case to go to the jury. The bane and antidote theory upon which Hunt J relied is merely a vivid way of stating that the whole publication must be considered, not a segment of it: cf World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712, at 719, 725. It must follow that it is only rarely that it will be possible for a judge to remove from the jury the issue whether the whole publication is defamatory where a publication contains clearly defamatory statements if they had been published on their own. As Samuels JA said: ‘...cases (ie, when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning) must be comparatively rare.’ Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 419.

The mere making of an apology may not be sufficient; it is a question for the jury whether the apology is so complete as to expunge the defamation and for the judge to determine whether the evidence is so strong as to make a decision to the contrary by a properly instructed jury perverse."

Glass JA said more briefly at p 674:

"The question must in my view be submitted to a jury which is the proper tribunal for determining whether the antidote has overcome the bane: Odgers on Libel and Slander , 6th ed (1929) at pp 22, 23; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at p 770; Chalmers v Payne (1835) 2 Cr M&R 156 at 159; 150 ER 67 at p 68. Rare cases may occur where the refutation so exactly matches the accusation that there can be no question for the jury."

Although this complaint was made in the Notice of Appeal, Mr Moloney QC did not seriously press it in argument, and the only reason why I have devoted a little time to it is because the decision of this court in Mitchell, like a number of recent important decisions of this court in the problematical field of defamation practice, seems to have escaped the attention of the law reporters.

Mr Moloney’s more substantial challenge to the judge’s ruling that the words were capable of bearing the meanings relied on was based on a contention that when the judge made his ruling under Order 82 Rule 3A he failed to follow the principles which the courts have been told to follow in these cases. Counsel referred us to the decisions of this court in Skuse v Granada Television Ltd [1994] 1 WLR 1156 and Mapp v News Group Newspapers Ltd [1998] 2 WLR 260, and submitted that the most relevant principles in the context of the present case were as follows:

(1) That the words complained of must be read in the context of the article as a whole;

(2) That the reasonable reader does not select one bad meaning when other, non-defamatory meanings are available;

(3) That on hearing an application under Order 82 Rule 3A the judge should delimit the range of meanings of which the words are capable, without fettering himself with Order 18 Rule 19 considerations.

Mr Moloney relied very heavily on the attractive write-up of the second plaintiff in the long article by Jenny Cooney which completely surrounded the short article by Ashley Bart-Powell of which complaint is made. He said, correctly, that this long profile is wholly favourable to her, and that it states in the most plain and least ironic terms possible that she and her husband are deeply in love with each other, and are devoted and loving parents to their two adopted children. But for this context, he said, it might be arguable that the references in Mr Bart-Powell’s article to previous press articles and gossip to a contrary effect were to be believed, in spite of the disclaimers contained in that article, but he submitted that given the context in which they appeared no reasonable reader would understand that those allegations were or might be true.

He said that the plaintiffs, in order to evade this insuperable problem (which the judge had allegedly failed to recognise) were compelled to go so far as to suggest that a reasonable reader would interpret the article as meaning that the statements in Jenny Cooney’s article were false and that the words complained of meant that the second plaintiff was lying in her interview. Not only, it was suggested, was this a far-fetched interpretation which only a person “avid for scandal” could reach, but it ignored the fact that the statements in the main article about the strength of the Cruises’ marriage and their devotion to their children were not put into the second plaintiff’s mouth but were contained in the descriptive text written by Ms Cooney. Counsel submitted that no reasonable reader would think that what she had written was being contradicted by her own paper.

Mr Moloney therefore submitted that the words complained of were plainly incapable of bearing the meanings pleaded which related to the plaintiffs’ family life and/or accused them of being liars (Meanings 4.2, 4.3, 4.4, 4.6 and 4.7). Two of the meanings pleaded fell into a different category. Counsel said that Meanings 4.1 (that she objected to being stared at by builders in her own home) and 4.5 (that the plaintiffs may have been involved in hiring investigators to look into the background of newspaper editors who were harassing them) did not accuse the plaintiffs of any misconduct and were not defamatory. The judge had been right to strike out Meaning 4.1, and we were pressed to strike out Meaning 4.5 as well.

In so far as the plaintiffs might rely on the so-called “repetition rule” (see Stern v Piper [1997] QB 123) we were reminded that Simon Brown LJ had made it clear at p 136B that this rule did not apply to “bane and antidote cases”.

We did not need to call on Miss Page to respond to this attack, although we had the benefit of her clear and helpful skeleton argument. It is well established now that this court could not overrule the judge unless he was plainly wrong, and the authorities I have cited show that it would only be in an exceptional case that a bane and antidote plea would be so compelling that a judge would be entitled to stop a plaintiff’s complaint from going to the jury.

So far as Meanings 4.1 and 4.5 are concerned, I share the judge’s view that the latter meaning is capable of being attributed to the words complained of and that it is potentially defamatory. As to the former, which is the subject of the cross-appeal, I would overrule the judge and hold that the words complained of are capable of having the meaning alleged and that it is a defamatory meaning. The judge dealt with it in this way:

"The first [meaning], as I have already indicated, is related to the order that building workers should turn and face the wall. That is said to indicate that the plaintiff is somebody who is arrogant. I confess that if that were the only allegation in the pleading, I would find it very difficult to say that that is capable of bearing a defamatory meaning. Unpleasant, maybe; defamatory, no. I shall strike it out."

In her skeleton argument Miss Page submitted that to impute arrogance is plainly to impute something that is capable of being defamatory. It was plainly open to a jury to find that the incident described in the first paragraph of Mr Bart-Powell’s article is to the second plaintiff’s discredit, that it would tend to make people think the less of her, and that it could readily affect the perceptions of others as to the desirability of her presence in a whole range of situations, from her employability on a film set teeming with technicians to her work as Australian Ambassador to UNICEF.

I agree. This is very much a matter for the jury to consider, and I would restore paragraph 4.1 to the pleadings.

I turn now to the appeal by the defendants against the judge’s order on the plaintiffs’ strike-out application which raised a difficult question which has not previously been decided by this court, although after argument was complete the court was reconvened to allow Miss Page to show us relevant dicta in another unreported decision of this court which had previously escaped her attention.

In order to understand the point in issue, it is necessary to quote quite extensively from the Defence (including, in italics, proposed amendments which the defendants seek to make in the event that we are minded to allow their appeal). After some immaterial prefatory admissions, non-admissions and traverses, paragraph 4 to 9 of the Defence (incorporating the proposed amendments) reads:

"4 The Defendants will rely, as context indicating the meaning and significance of the words complained of, on the whole of the references to the Plaintiffs in the 5 October 1997 issue of the Sunday Express magazine, that is:

a. The front cover, which comprised a full-page and glamorous photograph of the Second Plaintiff, captioned “Thrill seeker. Nicole Kidman turns all-action babe” (a reference to her new action film The Peacemaker which was publicised by the Defendants’ article)

b. The whole of the interview and article “Class action” by Jenny Cooney on pages 12, 13, 15 and 16 of the magazine (further illustrated with glamorous photographs of the Second Plaintiff and an action still from The Peacemaker) and in particular the caption to a photograph of the Second Plaintiff lying on a double bed with the prominent caption: “You have to work at marriage - and that could mean on a Saturday night we’ll go off and stay in a hotel together”

c. The whole of the panel on page 15 with the heading “Cruising for a bruising”, including the photographs and captions.

5. The Defendants will contend that, read in that context, which plainly depicts the Second Plaintiff without irony as a happy and devoted wife to the First Plaintiff and mother to their children, the words complained of are not capable of bearing the meanings attributed to them in the Statement of Claim; on the contrary, the words complained of are not more than a light-hearted and ironic reference to the fact that the Plaintiffs and their marriage appear so perfect as to become a natural target for the unfounded gossip of Hollywood journalists.

6. Further or in the alternative, as to the references in the article complained of to Scientology, those are true of the Plaintiffs in the following natural and ordinary meanings:

a. That the Plaintiffs are active members of the Church of Scientology, a dangerous cult which combines ridiculous doctrines with a policy of exploiting gullible believers for the financial gain of the Church’s leaders;

b. That they are themselves instruments of that Church, who by allowing it to exploit them and their fame contribute to the ensnaring by the Church of other gullible converts;

and are fair comment on a matter or matters of public interest (namely, the Plaintiffs, their public careers, the Church of Scientology and their rile within it), the comment being:

c. That because the Plaintiffs believe in and by their public example assist the Church of Scientology, they are themselves fit subjects for ridicule in that respect.

b. Its policy and practice of ensnaring and exploiting gullible believers for the financial gain of its leaders .

7. The Defendants will rely on the following facts and matters in support of each of the above defences.

PARTICULARS

a. The Church of Scientology was founded in the 1950s by a highly eccentric American science-fiction writer called L Ron Hubbard.

b. Its belief-system is the ridiculous one, that human beings are in fact immortal aliens called Thetans, that the object of human existence is to become “clear” (ie to free the Thetan within you from the influence of evil Engrams), and that the way to rid oneself of Engrams is to submit yourself to the control of the Church of Scientology and use a lie-detector-like device called an E-Meter regularly.

c. It is in fact a sinister cult, whose leaders (from L Ron Hubbard on) have enriched themselves by duping people into accepting its belief-system and then charging them extortionate fees for use of the E-Meter and other quack “therapies”.

d. People recruited by the Church of Scientology are at grave risk of being brain-washed into abandoning their families and careers, and submitting themselves to financial exploitation and psychological damage at the church’s hands.

e. Those who seek to oppose the Church of Scientology or reveal the truth about its beliefs and activities are subjected to legal and extra-legal harassment by it pursuant to its conscious policy.

f. Meanwhile, in order to advance Scientology and conceal its true nature, it is the conscious policy of the leaders of the Church, to recruit famous people such as the Plaintiffs and other Hollywood film-stars, and put them forward as the acceptable face of Scientology and thus secure new converts.

g. The Plaintiffs are to be pitied for having themselves fallen into the hands of the Church of Scientology. They have lent their public reputations to the Church, and have supported the Church and its dangerous work with large donations while submitting their own lives to its harmful guidance.

So far as necessary the Defendants will rely on sections 5 and 6 of the Defamation Act 1952.

8. Paragraphs 5 and 6 of the Statement of Claim are denied in every respect. The Defendants’ case as to the real meaning the intention of the words complained of is as set out above. In the premises, it is denied that the Plaintiffs are entitled to an apology. The Defendants will refer to their legal adviser’s letter of 4 November 1997, and will contend that its tone is a courteous and reasonable one, (especially by comparison with that of the Plaintiffs’ letter before action of 28 October 1997). Insofar as the words complained of have an insulting or mocking tone or language, such were directed at the Church of Scientology and the Plaintiffs’ membership of and support for it, matters of which the Plaintiffs have chosen not to complain, and in respect of which they cannot recover damages or aggravated damages.

9. So far as necessary, the Defendants will rely in mitigation or extinction of damage upon:

a. The facts and matters set out at 4 and 7 above

b. Their said letter of 4 November 1997

c. The fact that the Plaintiffs’ own attitude to the allegations now complained of, as evidenced by their previous public comments when those allegations have been published elsewhere, is that those allegations are not significant, and can be ignored or treated with contempt.”

The scope of the plaintiffs’ strike-out application was limited to the pleas of justification and fair comment contained in paragraphs 6 to 7 of the Defence. It will be seen that shorn of those paragraphs the Defence will raise the following points for the consideration of the jury:

(1) That the words complained of must be read together with the front cover of the magazine and with the Jenny Cooney article, and photographs, which envelops it (paragraph 4);

(2) That when read in that context the words complained of are not capable of bearing the meanings attributed to them, but are no more than light-hearted and ironic reference to the fact that the plaintiffs and their marriage appear so perfect as to become a natural target for the unfounded gossip of Hollywood journalists (paragraph 5);

(3) That insofar as the words complained of have an insulting or mocking tone or language, such were directed at the Church of Scientology and the plaintiffs; membership of and support for it, matters of which they have chosen not to complain, and in respect of which they cannot recover damages or aggravated damages (paragraph 8);

(4) That there are matters (which cannot include the contents of paragraph 7, if it remains struck out) on which the defendants are entitled to rely in mitigation or extinction of damage.

Mr Moloney accepted that if paragraph 7 is allowed to remain on the pleadings the action could turn into a major inquiry into the harm allegedly done by the Church of Scientology and could run for months and months, like the libel action tried by Comyn J ( Orme v Associated Newspapers Ltd ) which related to the Moonies. He suggested, however, that if the plaintiffs did not want this to happen, they could make admissions, as were made by the plaintiffs in United States Tobacco International Inc v British Broadcasting Corporation (CAT 11th March 1988).

The question we have to decide is whether, if an article contains two separate and distinct stings (a proposition Mr Moloney disputed on the facts of the present case), and a plaintiff complains of the whole article but only complains of one of the stings contained in it, the defendants are to be allowed to rely on pleas of justification and fair comment in relation to the other sting. Mr Moloney relied on Waters v Sunday Pictorial Newspapers Ltd [1961] 1 WLR 967 and a recent unreported decision of this court in Lloyd v Express Newspapers plc (CAT 24th March 1997). Miss Page said that the width of Willmer LJ’s dictum in Waters (“it is impossible to say that the particulars of justification can be no answer to any conceivable meaning which a jury might find”) must be treated with great care today, now that the rules of libel pleading have changed so much, and she advanced submissions which fortuitously turned out to be supported by a passage in the judgment of Nicholls LJ in the unreported United States Tobacco case to which I have referred above.

Before I turn to the point we have to decide, Miss Page’s observation about the case of Waters caused us to consider the history of developments in defamation pleading over the last 50 years. In 1949, following the report of Lord Porter’s Committee on the Law of Defamation (1948) Cmnd 7356 (see paras 162-166), what was then Order 19 Rule 6(2) (and is now Order 82 Rule 3) was introduced because defendants under previous practice were being taken by surprise at the trial by the nature of the evidence called by plaintiffs in support of meanings pleaded as a legal innuendo. The new rule (which represented in a certain sense a return to the practice of pleading prefatory averments before the enactment of the Common Law Procedure Act 1852), provides that:

"Where in an action for libel or slander the plaintiff alleges that the words or matters complained of were used in a defamatory sense other than their ordinary meaning, he must give particulars of the facts and matters on which he relies in support of such sense."

The introduction of this new rule to cover cases in which plaintiffs sought to adduce evidence of extrinsic facts to support a legal innuendo on which they relied ushered in a quarter of a century of uncertainty about the appropriate way of pleading what I will call a popular innuendo, in which a plaintiff says that the words complained of carry within them a meaning defamatory of him, without any need or occasion to rely on any extrinsic facts or matters in support of that meaning. A glance at some of the leading cases decided in this era will show the nature of the confusion which reigned on the ground. Thus in Loughans v Odhams Press Ltd [1963] 1 QB 299 Mr Gerald Gardiner QC argued at p 302 that since the rule-change in 1949, an innuendo of any kind could only be pleaded when the plaintiff relied on facts and matters other than the actual words of the libel itself as giving to those words a defamatory meaning different from their natural and ordinary meaning. In Lewis v Daily Telegraph Ltd [1964] AC 234 Mr Colin Duncan, who was a walking encyclopaedia on interlocutory practice in defamation litigation at that time, told the House of Lords at p 250 that from 1949 until Loughans’s case Queen’s Bench masters habitually struck out innuendoes unsupported by facts as required by that rule: one could not, he recalled, plead an innuendo without giving particulars.

The decisions of this court in Loughans and Grubb v Bristol United Press Ltd [1963] 1 QB 309 (which cleared up some lingering uncertainties contained in the judgment of Diplock LJ in Loughans) were the harbinger of modern pleading practice in this respect. They resolved the continuing confusion between a popular innuendo (in which, as Lord Reid observed in Lewis at p 258 the sting is more often not so much in the words themselves as in what the ordinary man will infer from them) and a legal innuendo (which gives rise to a separate cause of action and for which the extrinsic facts relied on must be pleaded), and made it clear that the new rule did not apply to popular innuendoes. But although these cases resolved that confusion, they did not send out a clear message of what must be pleaded when a popular innuendo is relied on, and the speeches in Lewis did not reflect clear guidance from the House of Lords on this point. The travails of libel litigants had to continue until this court in Allsop v Church of England Newspapers Ltd [1972] 2 QB 161 gave clear guidance on future practice. From now on, except where there was only one ordinary meaning of the words complained of which was clear and explicit, the plaintiff must plead the meanings which he said that they bore, so that the defendant might know what case he had to meet and frame his defence accordingly and the judge at trial might better be able to rule whether the words were capable of bearing the meanings suggested. It is now regular practice in a libel case to set out the words complained of in one paragraph and to follow this with a paragraph which starts “The said words, in their natural and ordinary meaning, meant and were understood to mean that ...” or words to that effect. A third paragraph will follow, pursuant to Order 82 Rule 3(1), if a legal innuendo is relied upon.

The decision in Allsop made mandatory the growing practice of pleading the sting or stings of the libel in clear terms in the Statement of Claim, so that the defendants and the judge can identify the popular innuendo(es) on which the plaintiff relies. That it was not a universal practice in 1971 can be seen in the judgments of this court in S and K Holdings Ltd v Throgmorton Publications Ltd [1972] 1 WLR 1036, a case decided in the same year as Allsop, in which the plaintiffs omitted from their pleaded case one paragraph in a long article in the Investors Chronicle, but did not identify in their pleadings the sting or stings they relied on as the basis of their claim. The defendants sought to plead facts in justification of what they had written in the omitted paragraph, and this court permitted them to do so on the basis that the jury might well conclude that the whole article contained a single sting.

Although the decision of this court in Allsop clarified pleading practice in one important respect, it did not purport to deal with two associated problems. The first was whether the discipline imposed on plaintiffs in Allsop (that in cases not covered by Order 82 Rule 3(1) they must plead all the meanings on which they rely for their defamatory stings) was also imposed on defendants, so that they were obliged to plead the meanings on which they relied for their pleas of justification and fair comment, if they differed from those relied on by the plaintiff. The other was whether, if a publication contained two or more separate and distinct stings and the plaintiff only complained of one of them, the defendants could rely on the other(s) and plead justification and/or fair comment. In the second edition of Duncan & Neill on Defamation (1983) the editors expressed their views on the second of these issues by adding a new sentence at the end of para 11.2 (which is concerned with “Justification of a meaning other than that alleged by the plaintiff):

“But it is submitted that the latitude given to the defendant is not unbounded and that he is not entitled to justify a meaning which is wholly distinct from that of which the plaintiff complains.”

These two continuing uncertainties were resolved by separate decisions of this court in 1986. As to the first, in Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 the court ruled that the former practice which dictated that a defendant who wished to rely on a different meaning in support of a plea of justification or fair comment, did not have to set out in his defence the meaning on which he based his plea, was ill-founded and should not be followed. In future a defendant who pleaded justification must plead the meaning which he sought to justify, if it differed from that pleaded by the plaintiff.

As to the latter uncertainty, in Polly Peck (Holdings) plc v Trelford [1986] 1 QB 1000 the court held that where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one of them for complaint, and the defendant is not entitled to assert the truth of the other(s) by way of justification.

These two decisions have meant that modern practice has now moved forward, as Miss Page submitted, from the practice permitted in the days when Willmer and Danckwerts LJJ decided Waters v Sunday Pictorial [1961] 1 WLR 967. It would be impossible for a modern judge to say, as Willmer LJ said in that case at pp 971-2:

"Counsel for the plaintiff sought to distinguish [ Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413] on the ground that in that case there was an issue as to whether the words complained of were defamatory at all . Until it was known what, if any, defamatory meaning the jury might put on the words complained of, it could not be said that the particulars sought to be added could in no circumstances amount to justification. Here, however it is said, the case is different, for the words complained of here are admittedly defamatory. Even so, however, I, for my part do not think that the distinction sought to be drawn is valid; for here, too, it cannot be known what exact meaning the jury will put upon the words complained of, and, as in Cadam’s case, so here, it is impossible to say that the particulars of justification can be no answer to any conceivable meaning which a jury might find ." (Emphasis added)

Under modern pleading practice a defendant must plead any different defamatory sting(s) which he contends the words are capable of bearing, as the foundation for his plea of justification or fair comment. The focus of a strike-out application is no longer at large, as it was in Waters. The defendant is now tied to his pleadings, and the plaintiff can apply to have a plea of justification or fair comment struck out if he contends that it is not properly arguable that the words complained of are capable of bearing the meaning(s) relied on by the defendant; or that the meaning(s) relied on are not defamatory; or that a particular meaning, although defamatory, conveys a separate and distinct sting from that relied on by the plaintiff, and the plaintiff makes no complaint about that separate sting.

In Polly Peck the plaintiffs had singled out for complaint the whole of one article and parts of two other articles published about them in The Observer. The defamatory sting of which they complained was to the effect that Mr Asil Nadir (the fourth plaintiff) had deceived or negligently misled shareholders, investors, and members of the general public as to the operation of the first three plaintiffs, which were companies run, but not controlled, by him. In pre- Lucas Box days, the defendants sought, inter alia, to justify in their defence allegations in the second and third articles of which the plaintiffs had not made complaint. They pleaded that the words complained of were fair comment on a matter of public interest and/or were true in substance and in fact, and then set out no less than 54 particulars of fair comment and justification.

The interest of the case lay in the way the court dealt with the application to strike out many of these particulars on the grounds that they represented an attempt to justify matters about which the plaintiffs did not complain. These included prima facie defamatory statements (contained in the words omitted from the Statement of Claim) about the profitability of two parts of the plaintiffs’ business empire, and about future prospects in two areas of the plaintiffs’ business, and defamatory comment on the question whether Polly Peck’s accounts were sufficiently informative or reliable. This court held that insofar as these statements were defamatory of Mr Nadir they were not separate and distinct allegations in the sense explained in the judgment of O’Connor LJ at p 1032D, which was in these terms:

"Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication."

In Polly Peck the alternative sting the plaintiffs invited the court to consider was contained in the parts of the three articles which they had deliberately omitted from their pleadings. Mr Moloney maintained before us that if the parts were not severable in this way, and a plaintiff was obliged to complain of the whole of a publication as being defamatory of him, the defendants were entitled to justify a separate defamatory sting of which he did not complain. He referred in this context to a dictum of Ralph Gibson LJ in Bookbinder v Tebbit [1987] 1 WLR 640 at p 646-7:

"Even where a defendant has published two distinct libels about a plaintiff the law permits the plaintiff to complain of one only, and to have that issue decided, and the law does not permit that defendant to justify the one of which complaint is made by proving the truth of the other ... but the two libels must be distinctly severable into distinct parts, and if they are not, the plaintiff cannot pick and choose between them (see Polly Peck Holdings plc v Trelford [1986] QB 1000, 1025)." (Emphasis added).

The passage on p 1025 of O’Connor LJ’s judgment in Polly Peck to which Ralph Gibson LJ was referring in fact consists of a long extract from the judgment of Lord Denning MR in S and K Holdings at pp 1039-1040, a case in which, as I have observed, the old pleading practice was followed and no sting was identified in the Statement of Claim. In that passage Lord Denning was recalling the case of Speidel v Plato Films Ltd [1961] AC 1090 and saying that unless a publication was clearly severable into two parts, as if they were different chapters, the jury must be allowed to see the whole of it to see the words in their context. He said:

"[Unless] the parts are clearly severable, I do not think it is open to the plaintiff to pick and choose. He must take the publication as it is, with all the defamatory statements about him. I pointed out in Speidel v Plato Films Ltd at pp 1143-1144: ‘If it is one single publication, in which it is necessary to see the whole in order to appreciate the impact of the parts, the judge will let the jury see the whole and both sides can make any fair comment on it.’ Even if the plaintiff has not complained of the whole, but only of part, the judge will let the jury see the whole. He must indeed do so, for the very purpose of enabling them to decide what is the natural and ordinary meaning of the words in their context. If the jury are entitled to see the whole, they should be allowed to know what each side says about the whole: and in particular, whether they say it is true or not."

Miss Page pointed out that that passage in Lord Denning’s judgment in S and K Holdings was immediately followed by a passage in which he said that much of the difficulty in that case was due to the fact that the plaintiffs had not pleaded the meaning which the words complained of bore. It is apparent that the former Master of the Rolls was of the opinion that if they had, they would have pleaded a wide meaning which the defendants could have justified by relying on the examples of improper accountancy practices mentioned in the paragraph of their article of which complaint was not made. Because the plaintiffs had not pleaded any innuendo, the jury was entitled and bound to put their own meaning on the words, and for that purpose they were entitled to look at the whole article, including the words omitted by the plaintiff.

Miss Page said that this passage provides no authority for the proposition that if words containing a particular sting of which the plaintiffs complain are inextricably mixed up with words containing a separate and distinct sting of which they do not complain the defendants should be entitled to adduce evidence in justification of the latter sting. She contended that it would be absurd if a plaintiff’s statement of claim had to include lines of dots, signifying the omission of certain words, simply to escape the logic of this supposed rule. The whole article is going to be before the jury anyway, so that they can see the context in which the words complained of were published, and she urged us to hold that the rules of pleading practice are not so artificial as to prevent plaintiffs from relying on the rules relating to separate and distinct stings simply because all the words in an article are set out in a statement of claim.

She showed us the way in which blue-pencil treatment would have to be applied to Mr Bart-Powell’s article to comply with the supposed rule while still including all the matters of which her clients sought to complain. Four passages would have to be omitted, most of them in the middle of a sentence. The first omission would start after the words “had been ordered”, and end with the words “In fact”, which are followed by a comma in the original. The next would start with the words “The Scientology connection” and end mid-sentence with the words “has been surpassed”, although some re-writing would have to be done. Finally, the sentence starting “Scientologists’ favourite trick” would be omitted, although the words “ a device rather like a lie detector”, which appear in the middle of that sentence would be retained to make sense of what follows. She submitted that there was no logic in a rule which required her to break up and edit the defendants’ words in this way simply to avoid evidence being called to support pleas of justification and fair comment which had nothing to do with the matters of which her clients were complaining. She said that the modern requirements of libel pleading (initiated by the cases of Allsop, Lucas-Box and Polly Peck ) have removed the need for these artificialities.

Counsel reminded us in this context of what Lord Justice Neill, with his vast experience in this field, said in Rechem International Ltd v Express Newspapers plc (The Times, 19th June 1992):

"[In] the course of reviewing the general principles and rules governing the striking out of pleadings in defamation actions, [counsel drew] the court’s attention to the fourth principle enunciated by Lord Justice O’Connor in Polly Peck v Trelford [1986] QB 1000, 1021:

‘The fourth principle is that the trial of the action should concern itself with the essential issues and the evidence relevant thereto and that public policy and the interest of the parties require that the trial should be kept strictly to the issues necessary for a fair determination of the dispute between the parties.’

There had been a great deal of criticism both in appellate courts and more generally about the length of the trial of libel actions and about their expense and complexity. It might well be that in the past insufficient attention had been paid to the importance and relevance of that principle."

At the time she made these submissions Miss Page was unaware of the fact that this point had already attracted the attention of this court more than 10 years ago. In United States Tobacco International Inc v British Broadcasting Corporation (CAT 11th March 1988) the Statement of Claim included more than half of a four-page transcript of part of a programme in the “That’s Life” television series hosted by Miss Esther Rantzen. All three members of the court considered that the words complained of contained two stings. The first was a charge that the plaintiffs were in breach of an agreement with the British government in promoting sales of their chewing tobacco to children. The other was a general charge that they were marketing a potentially carcinogenic substance.

The majority of the court (Purchas and Nicholls LJJ) considered that these two charges could not properly be treated as separate and distinct from each other, and they resolved their concern that evidence adduced in justification of the second charge (of which the plaintiffs did not make complaint) might greatly add to the length and expense of the trial by upholding the orders of the courts below whereby the parts of the Defence which sought to justify the “health risk sting” should be struck out in exchange for certain limited admissions which the plaintiffs were willing to make in relation to this issue.

The case is notable in the present context for a passage in the judgment of Nicholls LJ in which he was addressing an argument, similar to that addressed to us by Mr Moloney, to the effect that in Polly Peck O’Connor LJ was not envisaging a situation in which the two separate and distinct stings might both be included among the words complained of in the statement of claim. Nicholls LJ referred to an argument by leading counsel to the effect that severance of a defamatory statement of which a plaintiff complains from a defamatory statement of which he does not complain can only arise where the defendant was seeking to justify something not found in the statement of claim. The court had been told that there was no case in which severance had been applied where the allegation sought to be severed had been included in the statement of claim.

Nicholls LJ rejected this argument. He said (at p 17 of the Association Transcript with which we were supplied):

"This submission exalts form over substance, and I am unable to accept it. In the first place this argument, if sound, would mean that there could be no question of severance when the words conveying the allegation of which complaint is made are so intermingled, textually, with words conveying another allegation, of which complaint is not made, that they cannot be separated by use of a blue pencil. In such a case the draftsman of the statement of claim would have no alternative but to plead some words conveying the allegation of which the plaintiff was not complaining. That cannot be right. By separate and distinct ‘defamatory statements’ Lord Justice O’Connor was, clearly, referring to defamatory allegations which are separate and distinct from each other, not to two passages in the text which are separate and distinct. As he said earlier in his judgment ‘distinct in the sense that the imputation defamatory of the plaintiff’s character in the one is different from the other’.

Secondly, even if the words conveying the two allegations are textually severable, so that it can be demonstrated that the draftsman need not have included in the text quoted in the statement of claim any words conveying the allegation of which the plaintiff is not complaining, it does not seem to me to follow that that in itself determines the question of severance for the purposes of justification. Why, I ask myself, should it? The whole article will in any event be before the judge and jury at the trial, to see the context of the words conveying the meaning of which complaint is made. So the inclusion in the statement of claim of more words than may have been strictly necessary is not, in itself, a matter of consequence. Prolixity of pleadings is not to be encouraged, but if indeed there are in the words used in the ‘That’s Life’ programme two separate and distinct defamatory allegations and if (as has happened) the plaintiffs have unequivocally selected only one for complaint, then in my view the BBC does not become entitled to assert the truth of the other by way of justification simply because the lengthy extracts from the text of the programme set out in the statement of claim include words making another allegation of which, had the plaintiffs so chosen, they could also have complained."

It is clear that the two other members of the court also adopted the same approach. Purchas LJ referred at p 15 to the dichotomy “inextricability versus severability” and then went on to consider whether the “health risk sting” was entirely separate or unconnected from the “agreement sting”, an exercise which would have been unnecessary if the rules of pleading were as rigid as Mr Moloney now contends. Russell LJ for his part considered at p 22 that the two stings, although both contained in the words complained of, were separate and distinct, and that the defendants should not on that account be entitled to adduce evidence to justify a sting of which the plaintiffs did not complain. He said:

"I recoil from the idea that the answer depends upon the precise form that the statement of claim takes when it is common ground that the plaintiffs seek to restrict the issue. In practical terms the difference is between a trial that should be disposed of in days as opposed to a trial that I suspect could take weeks or months with a wide range of experts called on each side. The courts should not be placed in the position of providing a forum for a crusade, however well intentioned."

None of these observations were strictly necessary for the decision of the majority of the court, which was to the effect that the stings were not separate and distinct, and that the appropriate way to avoid the trial getting out of control was by way of the admissions the plaintiffs were willing to make. They are therefore persuasive, but not binding authority.

Apparently to contrary effect is the judgment of Lord Bingham CJ (with which Peter Gibson and Phillips LJJ agreed) in Lloyd v Express Newspapers plc (CAT 24th March 1997). Because this is another unreported case, we do not know what arguments, if any, were addressed to the court on the point we have to decide. Lord Bingham CJ, who did not mention the United States Tobacco case, said that he understood that the relevant legal principles were not in dispute, and quoted a short passage from the judgment of O’Connor LJ in Polly Peck at p 1032A-F.

In Lloyd, the plaintiff, a television presenter and journalist who had presented weather reports on Independent Television, complained of two headlines, a caption beneath a photograph, and parts of an article published in The Daily Star. She said that in their natural and ordinary meaning the words pleaded meant and were understood to mean that she was an unqualified, unintelligent and unprofessional weather girl who did not have the wit or brains to present the weather except by repeating parrot-fashion a science she did not understand, and that in the circumstances she was incapable of presenting the weather properly and ought to be dismissed.

The defendants, in Lucas-Box particulars, had pleaded seven alternative meanings as the foundation of their plea of fair comment, and the issue before the Court of Appeal turned on the question whether the judge had been right to strike out the last two of these particulars, which related to aspects of the plaintiff’s personal, as opposed to her professional, life. Counsel for the defendants argued that there was a single common sting, while counsel for the plaintiffs argued that there were two severable and distinct stings in the words complained of, of which his client had chosen only to complain of the first. An argument based on “inextricability” does not seem to have been advanced.

Lord Bingham CJ accepted (transcript p 8) that the article contained two separate stings, but he said that the plaintiff could accordingly have confined her complaint to that part relating to her professional life, and even if on that basis the complaint would not have related to most of the article, it would have been a legitimate way for her to present her complaint and to seek redress. Since the passages complained of included parts of the article not directed to the professional life of the plaintiff, the defendants were entitled to advance their plea of fair comment with reference to the parts pleaded. He continued:

"It is of course true that the meanings pleaded by the plaintiff do relate solely to her professional life, but it must be clear that the defendants are not limited in the meanings which they plead to those asserted by the plaintiff. They are entitled - if, indeed, they are not bound - to plead what they say is the meaning of the words complained of, and they have done so. They have pleaded the meaning that they say should be given, including the meaning that should be given to the ‘storm’ reference in the headline and the statement in the sub-headline. They have also pleaded the facts which they rely on to support that comment. In my judgment therefore the judge was wrong to treat this as a case in which there were separable defamatory meanings of which the plaintiff had complained of only one ."

Without knowing precisely what was argued, it is difficult to comment on the effect of this decision. It does not purport to address the issue we have to decide, and for this we were given greater assistance by the judgments in this court in the United States Tobacco case.

In my judgment, Nicholls LJ correctly set out the relevant principles in his judgment in that case. I share his unwillingness, and that of Russell LJ, to accept that the length and cost of a libel action must be greatly extended simply because it is not easy for a pleader to extricate the sting or stings of which his client complains from the words surrounding them, which may contain a quite separate and distinct sting. The leading judgments of this court from Allsop onwards have been concerned to control the scope of this type of litigation, and I can see no logical basis for the supposed rule for which Mr Moloney contended. It is no defence to a charge that “you called me A” to say “Yes, but I also called you B on the same occasion, and that was true”, if the second charge was separate and distinct from the first. It may in any given case be difficult to decide whether the two charges are indeed separate and distinct (for rival approaches to the published words in the New Zealand case of Templeton v Jones [1984] NZLR 448, see O’Connor LJ in Polly Peck at pp 1030-1031), but whether they are or not is a question of law which can conveniently be determined on an interlocutory application of this kind. A good example on the other side of the line is Thompson v Bernard (1807) 1 Camp 47, cited in Polly Peck at p 1023, where the words “Thompson is a damned thief” were clearly not severable from the words that followed, which were to the effect that he had received the proceeds of the ship and failed to pay the wages.

I will now apply these principles to the facts of the present case. In my judgment Miss Page is correct when she says that the words of which her clients complain are not readily extricable from the remainder of the article, which the jury will have to read, together with the accompanying article by Jenny Cooney, in any event. This is not a case in which her clients are seeking to use a blue pencil upon the words published of them so as to change their meaning, and then prevent the defendant from justifying the words in their unexpurgated form (for which see O’Connor LJ in Polly Peck at p 1023G). Their case is that the stings about their characters of which they complain are totally distinct from any sting the article may contain about their adherence to the Church of Scientology. The idea that they were ordered to marry is equally offensive whoever may have given the order, and their complaint about the innuendo that nobody should believe anything they say unless they are seen performing a lie-detector test is offensive in itself, and once again has nothing to do with their adherence to the Church of Scientology.

Mr Moloney, for his part, told us that the article contained a single sting, but this sting was not pleaded or formulated in his skeleton argument, and when we asked him what this sting was he was not at all convincing in his answer.

The judge was of the opinion that there was no common sting between the other allegations which were made and the allegation in relation to the Church of Scientology, and he therefore struck out paragraph 6 and 7 of the Defence. In my judgment he was entitled to do so. The stings contained in the meanings pleaded in paragraph 4 of the Statement of Claim are free-standing charges. If anybody thought it was defamatory to say of the plaintiffs that they were members of the Church of Scientology, the plaintiffs do not complain of it, and this allegation, if defamatory, is unconnected with the matters of which they do complain, which relate to their arrogance, their perfidiousness about the true state of their marriage, and so on. The judge was in my judgment correct to hold that this libel action should not be permitted to get out of control by allowing the defendants to justify or plead fair comment in respect of a quite separate and distinct sting, if indeed it be a sting at all, of which the plaintiffs make no complaint.

The judge went on to say that if he was to hold that it was open to the defendants to enter these pleas, he would take the view that to allege that somebody is a member of the Church of Scientology, even though they may not take an active part in it, and may not be any more than a victim, as it is said, is capable of being defamatory. In their ordinary meaning, it seemed to him, the words used were capable of suggesting that the plaintiffs associated with members of a body who were not a benign body: whether the jury would take that view, he said, would be a matter for them.

I am not sure whether I would have reached the same conclusion as the judge. The Church of Scientology now has charitable status in certain major countries in the world, and just because some people have very strong views about it, it does not necessarily mean that to say of someone that he is a member of it is capable of being defamatory. Much the same could be said of an allegation that a person is a freemason.

In view, however, of this court’s self-denying ordinance in relation to appeals under Order 82 Rule 3A, I would not for my part have allowed the appeal on that ground. The appropriate way for the plaintiffs to restrict the scope of the trial in that event would be to make timely admissions of fact, as O’Connor LJ said in Polly Peck at p 1032E-F, and as was successfully done in the United States Tobacco case.

For the reasons I have given I would dismiss this appeal and allow the cross-appeal.

SIR JOHN KNOX: I agree.

LORD JUSTICE STUART-SMITH: I also agree.

Order: Appeal dismissed; cross-appeal allowed;

costs be for respondents.