England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE BELL)

		Royal Courts of Justice Strand London WC2
		17 February 1998

LORD JUSTICE OTTON: This is an appeal from the Order of Bell J made on 16 February 1996 on the Defendants' Summons pursuant to RSC Ord.82 r3A. The Judge held that the words complained of in this libel action were not capable of bearing any defamatory meaning of the Plaintiffs or any of them and dismissed the action. Leave to Appeal was subsequently granted by the Court of Appeal.

The action stems from an article headlined "FARMLAND IN POISON FEARS" written by the first Defendant and published by the second Defendant on the front page of the East Anglian Daily Times for Monday 20 February 1995. In essence, the article reported fears about the safety of a new agricultural fertiliser made by the N-Viro process from sewage sludge and cement-kiln dust. The text of the article which includes a smaller headline "Fertiliser Attacked as Unsafe", reads:

"DANGEROUS chemicals could be part of a new fertiliser being spread on land by farmers, environment campaigners claimed yesterday.

Friends of the Earth fear a controversial fertiliser being used in Suffolk could contain cement kiln dust.

The substance is recognised as hazardous waste in the United States.

The N-Viro process, developed in the US, involves mixing sewage with waste from the cement and burnt lime industries.

The fertiliser, produced at Southern Water's N-Viro plant in Horsham, Sussex, was tested at Cobbold Farm, Little Glenham, near Saxmundham, in January .

The farming press has reported that Anglian Water plans to have a similar plant running in Southend by the end of year.

Friends of the Earth (FoE) fear the fertiliser may contain cement kiln dust impregnated with high amounts of toxins. These could include heavy metals and dioxins.

Roger Lilley, the FoE's regional spokesman, claimed yesterday that efforts to investigate further have been frustrated by the reluctance of the water companies to release information.

He said he was particularly concerned about dioxins in the air which could lead to foetal abnormalities. 'It is extremely dangerous,' he warned.

Mr Lilley said he was worried that there would not be adequate checks to ensure that cement kiln dust did not get into the processed fertiliser.

But the group's claims were criticised by the chairman of the National Farmers Union in Essex, James Padfield. He said a soil expert told him that he was 'absolutely confident this is 100 per cent safe for farming and for the environment'.

Labour agricultural spokesman, Gavin Strang, pledged to press the Government for more information.

Southern Water said it was unable to comment. Last night, Mike Adlam, manager of Cobbold Farm, refused to comment."

The first and second Plaintiffs are the directors of the third and fourth Plaintiff companies, which are the sole distributors of the N-Viro Soil Fertiliser in Norfolk, Suffolk and Essex. Neither the individual Plaintiffs nor their companies are mentioned in the Article. Nevertheless, it is contended that a very substantial number of (unidentifiable) people would have understood the Article to refer to the Plaintiffs in their capacities as the distributors, marketers and promoters of N-Viro Soil in the East Anglia area. For the purpose of the application and this appeal reference is assumed.

Paragraph 5 of the Statement of Claim asserts that in their natural and ordinary meaning the words meant:

"The Plaintiffs distribute, market and promote fertiliser for use by farmers on their land which:

"(1) contains dangerous and toxic chemicals and which could lead to foetal abnormalities;

(2) comprises cement kiln dust which is impregnated with large amounts of toxins and is classified as hazardous waste in the United States of America;

(3) is by reason of (1) and (2) above extremely dangerous and should not be used on farm land."

In the Defence it is denied that the words bore, were understood to bear, or are capable of bearing the meanings pleaded or any meaning defamatory of the Plaintiffs.

Before the learned Judge Counsel for the Plaintiffs sought leave to amend paragraph 5 of the Statement of Claim as follows:

"In their natural and ordinary meaning and/or by way of innuendo the said words meant and were understood to mean that the Plaintiffs distribute, market and promote a fertiliser for use by farms on their land which they know or ought to know or ought to have suspected:

(1) might well contain dangerous and toxic chemicals and which could lead to foetal abnormalities,

(2) might well comprise of cement kiln dust, which is impregnated with high amounts of toxins and is classified as hazardous waste in the United States of America,

(3) might well be by reason of (1) and (2) above extremely dangerous and should not be used on farm land."

The Judge held that the words complained of (as asserted in paragraph 5 in its original or proposed amended form) were not capable of bearing the meaning pleaded. He further held, that in any event:

"No reasonable Jury properly directed could conclude that the words complained of were capable of being defamatory of the complainants even if the were capable of bearing the meaning pleaded in the Statement of Claim. Moreover there was no ground for inferring from the words complained or anything else that the defendants knew, or ought to have known, or suspected that N-Viro Soil was or might be dangerous".

He rejected the argument that a reader might infer danger from the inability or unwillingness of Southern Water and Mr Adlam to comment.

Mr Richard Rampton QC, on behalf of the Plaintiffs accepted that the meaning originally pleaded in paragraph 5 of the Statement of Claim is not capable of being defamatory of the plaintiffs. He submits that the Judge erred in law in finding that the words complained of in the proposed amendment were not capable of bearing any defamatory meaning. He contends that the Judge reached the conclusion on the basis that the article complained of merely reported a dispute between, environmental campaigners, and an advocate of N-Viro as to whether or not the product was dangerous or might be dangerous, and that the Plaintiffs were "mere distributors and so could not reasonably be expected to have knowledge of any dangerous properties in the product they were distributing". Four weeks prior to the article complained of the Defendants published a full page article which made clear the Plaintiffs leading role in promoting N-Viro in East Anglia. In the result the readers of the article complained of who had read the previous article could (and probably would) have concluded that, far from being mere distributors, the Plaintiffs were truly speaking its sponsors, having actively promoted it as 'environmentally friendly'. Accordingly in the minds of such readers there would be an inference of culpable irresponsibility on the part of the Plaintiffs.

Leading Counsel further contends that the Article is starkly unbalanced. The first 10 paragraphs coupled with the headline and sub-heading set out the case against the product (and by inference the Plaintiffs) which he refers to as "The bane". Only paragraphs 10 and 11 purport to put the other side of the argument and to exonerate them ("The antidote"). The bane is not neutralised by the antidote. Hence the question is whether ordinary readers of the Article knowing that the Plaintiffs were the sole distributors of and were actively promoting N-Viro could have concluded that the Plaintiffs knew or ought to have known or suspected that the N-Viro had or might well have, the hazardous properties suggested in the article.

Mr Desmond Browne QC on behalf of the Respondents contends that if the Plaintiffs have a cause of action at all, it is not for defamation of them as individuals or corporations, but for so called slander of goods. It is not enough to constitute a libel on a retailer to say that his goods are (still less, maybe) dangerous. There has to be an additional element, namely some suggestion impugning the Plaintiffs competence as a retailer.

He further submits that the article primarily records the claim or fear of the environmental campaigners that N-Viro soil could contain cement kiln dust which may be impregnated with toxins which could include dioxins which could lead to foetal abnormalities. He emphasises the tentative terms in which these fears are expressed and in particular the use of subjunctive verbs. The Article merely asserts that the produce is controversial because there are two sides to the debate about its safety. Thus the Judge was right when he held that there was nothing in the words complained of suggesting that the Plaintiff knew or ought to have known or suspected that N-Viro Soil was or might be dangerous; nor could any lack of care of the part of the Plaintiffs be inferred when the article made it quite clear that there was a real dispute as to whether the produce was dangerous or absolutely safe.

It is well established that where the words complained of amount to no more than disparagement of the Plaintiffs goods this does not give grounds for an action for libel. In the Griffiths v Benn 1911 27/TLR/346 at 350 per Cozens-Hardy MR:

"For material to be defamatory of a company there must..... be some inference of culpable responsibility on the part of the company, whether it be, in ascending order of seriousness, inefficiency, negligence, recklessness, deliberate malpractice of some kind, or plain fraud and dishonesty which is so serious that it is likely to affect the company adversely in the true estimation of reasonable people generally."

[See also South Hetton Coal Company v North East News Association 1894 1QB133 at 139-40, per Lord Esher MR, McDonalds v Steel and Morris 20 November 1995 per Bell J and Gatley 9th Edition Chapter 2.38.] The Defendants article is not open to the construction that in the conduct of their business and in the selection of the product the Plaintiffs were incompetent or lacked judgement. Accordingly the Appellants were correct in accepting that the meaning attributed to the words complained of in the original pleading is not capable of being defamatory of them.

Thus the issue is whether the words complained of are capable of bearing the natural and ordinary meaning contained in the amended pleading, ie could a reasonable Jury, properly directed, find that the words bore that meaning? In order to determine that question it is necessary to take into account the context in which the words were used and the mode of publication. The Plaintiff cannot select isolated passages and complain of those alone if other parts of the Article throw a different light on that passage. [See Duncan and Neill on Defamation Second Edition page 13, paragraph 4.11.]

I accept Mr Rampton's argument that taken as a whole the article is unbalanced. It carries a sensational headline, containing the emotive word 'Poison'. This is enhanced by the subheading 'Fertiliser Attacked as Unsafe'. The first word of the text 'DANGEROUS' is in upper case. The first ten paragraphs set out the environmentalists' concerns, their regional spokesman's fear that dioxins could lead to foetal abnormalities and his warning that 'It is Extremely Dangerous'. Of the remaining four paragraphs only two are devoted to the contrary argument. Mr Padfield the Chairman of the National Farmers Union in Essex merely relates that he has been told by an unidentified soil expert that he was 'absolutely confident this is 100 per cent safe for farming and for the Environment'. There is some substance in Leading Counsel's contention that Mr Padfield is a person who might be thought by readers 'more concerned with the agricultural benefits to be derived from the new product than its potential hazards'.

However this lack of balance, stark as it undoubtedly is, is not, in my judgement, of itself sufficient to render the words complained capable of bearing the natural and ordinary meaning presently pleaded. The Defendants do not assert that the product is dangerous, it records the opinion of the FoE's spokesman, that 'It is extremely dangerous'. The rest of the language referring to the product is much more circumspect. Moreover the imbalance is substantially corrected when it is read in conjunction with the earlier article to which no possible exception can be taken.

Assuming that there are readers of the Article with the knowledge that the Plaintiffs promoted or marketed or sponsored N-Viro soil, (as suggested by the earlier Article) it does not follow that they will think the worse of the Plaintiffs merely for distributing a product which may be unsafe. In the Skuse v Granada Television 1996 EMLR278 at 285

Sir Thomas Bingham MR said:

"The hypothetical reasonable reader is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer, and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available".

The readers of this publication in East Anglia, particularly farmers, would readily appreciate that two views of the controversy were possible and they are sophisticated enough to appreciate that FoE is an environmental lobbyist concerned for potential damage to the environment. Merely because the FoE has strong reservations about the safety of the product does not mean that the Plaintiffs individually or collectively would be lowered in the estimation of the reader.

In Hope Technical Developments Ltd v British Broadcasting Corporation (unreported) 1993/6587/E, 31 March 1995, Morritt LJ said:

".........Counsel for the Plaintiff has submitted that....... the product in question is a safety device designed and manufactured by the Plaintiff, any criticism of the product is likely to reflect adversely on the Plaintiff and be defamatory. That seems ....... to be putting the matter much too high and to involve a series of non-sequiturs. A new invention on the threshold of science can well be criticised for not being 100 per cent effective without casting any implication whatever on the maker of the product. The question is whether here there is an imputation on the maker and not the product."

In the instant case the Plaintiffs are not even the manufacturers. The reader is told that the developer of the product was in the United States and that the fertiliser was produced by Southern Water. The reader might infer that the developer or manufacturer in the course of his involvement should have come to appreciate an actual or potential danger. If subsequently the product is shown to be so no fair minded reader, in my view, would attribute any responsibility (still less irresponsibility) to these Plaintiffs as mere distributors. Even if there were substance in the suggestion that the Plaintiffs sponsored or actively promoted the product, as Mr Rampton contends, there is no basis upon which a reader could draw an inference adverse to them. Moreover, there is nothing to suggest that the Plaintiffs knew or ought to have known or suspected that the fertiliser was harmful to land, livestock or the foetus.

With this analysis I turn to consider the manner in which the Learned Judge expressed his conclusions:

"I do not consider that a statement of the mere fact of distribution, or manufacture for that matter, of a product which is dangerous, let alone one which might dangerous, by a plaintiff can be defamatory of that plaintiff unless at least the danger is obvious or reasonably discernible from the nature and construction of the product itself. I see no ground for inferring from the words complained of or anything else that Mr Hinchcliffe has brought to my attention that the defendants knew or ought to have known or suspected that N-Viro Soil was or might be dangerous. There is nothing in the words complained of in this case which points in that direction, in my view. I do not consider that it is possible to infer some lack of care on the part of the Plaintiffs in failing to check the safety of a product which they distribute when the words complained of themselves make it quite clear that there is a real dispute as to whether N-Viro Soil is dangerous or absolutely safe".

I agree with the Learned Judge's reasoning and his conclusion. Consequently I am satisfied that he did not fall into error in holding that the words complained of were not capable of bearing the meaning pleaded (or in the proposed amendment) and that no reasonable Jury properly directed could conclude that the words complained of were capable of being defamatory of the Plaintiffs.

I wish to add one further observation. When granting Leave to Appeal Lord Justice Hirst (sitting with Lord Justice Judge) said:

"I am satisfied that it is reasonable arguable that the words are capable of a meaning defamatory of the Plaintiffs, thought I do not think that the Plaintiffs should feel too confident that they will necessary succeed in the Court of Appeal. I do, however, think that there are dicta in the Judgment which do call for consideration by the full court, particularly one....... which raises the well known problem of an Article which contains both a bane and antidote. The question is whether the antidote wipes out the bane. No doubt, the Full Court will wish to consider whether that is a matter for Judge to decide as a preliminary issue or one which, in the last analysis should be decided by the Jury."

This observation follows from the well known passage from the Judgment of Alderson B in Chalmers v Payne (1835) 2CMR156 at 159:

"But the question here is, whether the matter be slanderous or not, which is a question of the Jury; who are to take the whole together and say whether the result of the whole is calculated to injure Plaintiffs character. In one part of this publication something disreputable to the Plaintiff is stated but that is removed by the conclusion: the bane and the antidote must be taken together."

This hallowed principle has been applied with little refinement in many cases. In Charleston v News Group Newspaper Ltd 1995 2 AC 65 Lord Bridge of Harwich said at 70D-H:

"What is involved is essentially the weighing up and comparison of bane and antidote, to repeat Baron Alderson's evocative formula. It is question of degree and of repeating emphasis....... It may be easier to arrive at an answer where the publication contains an express disclaimer, as in Stubbs Ltd v Russell, or where the antidote consists in a State of Fact destructive of the ingredients from the bane has been brewed."

This principle only arises where the article as a whole is calculated to injure the Plaintiff's character. As I have come to the conclusion that the Article as a whole is not calculated to do so, does not injure the Plaintiffs character and no properly directed Jury is likely to so conclude, the question of whether the antidote is effective to neutralise the bane does not arise.

Accordingly I would dismiss this appeal and allow the Judge's Order to stand whereby the action stands dismissed.

LORD JUSTICE MAY: I agree.

LORD JUSTICE ROCH: I also agree.

Order: Appeal dismissed with costs. Leave to appeal to the House of Lords refused.