England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Morland J)

		Royal Courts of Justice Strand London WC2 15th June 2001

15th June 2001
1. LORD JUSTICE KEENE: These are expedited appeals against decisions of Morland J in these two inter-related slander cases, his decisions being dated 10th May 2001. Permission to appeal was granted by me on the documents in respect of some of the grounds of appeal in the action brought by Mr Thornberry, and on the sole ground of appeal in the action brought by Shendish Manor Limited.
2. The application for permission was renewed in respect of those grounds where permission had been refused on the documents, those all relating to the action brought by Mr Thornberry. We ruled after argument that this renewed application was dismissed and said that we would give our reasons in this judgment. At the end of the argument on the appeal we dismissed the appeal, save in one respect, and said that we would give our reasons in due course.
3. In 1997 the respondent was the leader of Dacorum Borough Council, the chair of its policy committee and a member of the local plan subcommittee. Mr Thornberry was the executive chairman of Streetneat Limited, a company which has since changed its name to Shendish Manor Limited. According to Mr Thornberry's witness statement the company is the owner of property within Dacorum Borough known as Shendish Manor. It comprises a listed building set in 160 acres of land near Hemel Hempstead in Hertfordshire. The company carries on business there of providing conference and banqueting facilities, together with a fitness centre and a golf course.
4. In June 1997 the company submitted proposals to the borough council as the local planning authority for inclusion in the draft local plan. It seems that the company wanted some 35 acres of the land at Shendish Manor to be shown in the draft local plan for residential development.
5. On 23rd September 1997 Mr Newlyn, a town planner, addressed the policy committee on behalf of the company. After the meeting the respondent is alleged to have said to Councillor Young:

"The owner of Shendish Manor, Mr Ralph Thornberry, is a crook and is only in business for a fast buck."

6. That is the first slander upon which both Mr Thornberry and the company sue. The defamatory meaning pleaded in this respect of this slander and the later slander is in relation to Mr Thornberry that:

"In their natural and ordinary meaning the said words meant and were understood to mean that the claimant had committed a criminal offence and in particular one involving dishonest dealings and/or that the claimant was capable of acting in a dishonest and/or criminal manner."

7. In relation to the company the meaning pleaded was:

"In their natural and ordinary meaning the words pleaded meant and were understood to mean that Mr Thornberry, and by virtue of Mr Thornberry's close connection with Streetneat Limited, the company, had committed a criminal offence and in particular one involving dishonest dealings and/or the claimant himself was capable of acting in a dishonest and/or criminal manner."

8. The second alleged slander was uttered on 1st December 1997 after a private meeting between Mr Thornberry, acting for the company, and the respondent in her capacity as leader of the council and chair of the policy committee. The respondent is alleged to have said to a councillor, Councillor Hinson:

"That was Ralph Thornberry from Shendish. He is a bloody crook and I have to count my fingers to make sure that they are all there after shaking hands with him."

9. By her defence the respondent denies uttering the slanders or any similar words and asserts that she had no reason for so doing.
10. The matter is listed for trial beginning next Monday, 18th June 2001. However, on 9th and 10th May Morland J dealt with a number of applications made on behalf of the respondent. He decided, first, that the company, Shendish Manor Limited, had no realistic prospect of establishing that the slanders referred to it. He therefore dismissed the company's claim. In essence he concluded that the alleged slanders were not capable of referring to the company. In so doing he rightly observed that since the defamatory words did not identify the company as such, the company was obliged to establish reference.
11. On this topic the judge applied a two stage test. First, it had to be shown that at least one person to whom the slander was published did in fact conclude at the time that the words complained of sent a message defamatory of the company. That could be established because the publishee had knowledge of certain extrinsic facts which led him to that conclusion. This first stage arises because there has to be publication of defamatory words understood to refer to the company if the latter is to establish any damage.
12. The second stage of the test applied by Morland J was to ask whether a sensible person, knowing the same extrinsic facts, might have reasonably understood the words as being defamatory of the company. This second stage is based on a number of well-known authorities, in particular Morgan v Odhams Press [1971] 1 WLR 1239.
13. It is not in issue that it is for the judge to determine whether the words are capable of being understood by such an ordinary, sensible person, possessed, if necessary, of the special knowledge, as referring to the claimant, it being for the jury, if the words are so capable, to determine whether in fact the words would be so understood. None of these legal principles are in issue.
14. The judge concluded that the company's case failed at the first stage. He went through the witness statements of those who said that they had heard the words. He decided that their evidence did not establish that they regarded the words as referring to the company as well as to Mr Thornberry as an individual. He then dealt briefly with the second stage test, simply indicating that he would have found against the company on that basis also had it been necessary.
15. On behalf of the appellant company Mr Hockman QC submits first that Morland J went wrong in applying the first part of the test. He point to passages in the evidence from the two councillors to whom the two remarks were allegedly made; Mr Young in respect of the first statement and Mr Hinson in respect of the second.
16. Mr Young in his witness statement refers to Mr Thornberry as "the owner of Shendish and the driving force there". Mr Young in his statement clearly means, given the context, that he believed Mr Thornberry to be the owner of the property Shendish Manor. He refers also to planning applications made by Shendish. Mr Hinson in his witness statement says that he knew Mr Thornberry was "from Shendish Manor". He goes on in paragraph 11 of his statement to say:

"But what she said put me on my guard so as far as Mr Thornberry was concerned. At a meeting of 29th January 1998 the disparaging references to Mr Thornberry began to fuel doubts in my mind about his integrity. The planning officers were definitely treating Mr Thornberry as someone to be kept at arms' length. This made me suspicious of him, so much so that if I was looking at a list of planning applications I would make a point of looking out for a Shendish application. Gradually I began to believe that there might be some truth in what Miss Coleman had said. It is certainly the case that we encouraged to view and treat Shendish applications with scepticism."

17. Then at paragraph 13 he adds:

"I discussed the matter with Councillor Killen. I may well have discussed it with others at various times when the affairs of Shendish came up for discussion in council."

18. It is those references to Shendish and the affairs of Shendish and to Shendish Manor upon which reliance is placed. It is submitted that the word "Shendish" is used to refer not merely to the property but to the entity which had applied for planning permission, or for proposals to be included in the local plan, that is to say the company. So these references are to be taken, it is said, as references to the company and they show that Mr Young and Mr Hinson took the defamatory words to be referring to the company. It is conceded that nowhere do Mr Young or Mr Hinson say expressly that they understood the words to refer to the company, but it is said that the witness statements come sufficiently close to that and that the claim should not be struck out merely on the basis of witness statements when the witnesses might in their oral evidence have made it clear that they understood the words to refer to the company.
19. There was during the proceedings before us an application for leave to admit further evidence which had not been before Morland J, evidence in the shape of an additional witness statement from each of these two councillors, Mr Young and Mr Hinson. We refused that application. The reasons for our refusal are set out in the judgment to be delivered herein by Mummery LJ which I have seen in draft. I make it clear that I agree with those reasons.
20. So far as the second stage test is concerned, it is argued on behalf of the appellant that the words were spoken on each occasion in the context of discussions about planning proposals for Shendish Manor where the proponent was in fact the company. The ordinary, sensible person knowing of the company's involvement with Shendish Manor and of the fact that Mr Thornberry did not deal with the council in a personal company but as a representative of the company, might reasonably have understood the alleged slander to refer also to the company.
21. It is contended in addition by Mr Hockman that the company was the alter ego of Mr Thornberry, reliance being placed on a passage in Bargold Limited v Mirror Newspapers Limited [1981] NSWLR 9 at 10 and 11 where reference was made to the relevance of the extent to which a director or officer of a company is considered to be its alter ego when the issue of reference is being considered. It is also said that the company's claim should not be struck out unless the position is that it would be perverse of a jury properly directed to find that the company was defamed by these words.
22. At one point in the argument Mr Hockman contended that the words complained of from the occasion in September 1997 contained an express reference to the company because of the description of Mr Thornberry as "the owner of Shendish Manor". That is said to have been the trading name of the company at all times. Reliance is placed on the use of the words "Shendish Manor" at the top of notepaper used for letters sent on behalf of the company.
23. I find this argument wholly unpersuasive. The natural meaning of the words "the owner of Shendish Manor" is that he owned the property going by that name. Those words are not, in my judgment, capable of being construed as referring to ownership of the company.
24. For the respondent Mr Shields QC submits that under the first stage of the test the claimant must plead and show by evidence that the publishees knew that Mr Thornberry was the company and took the words to refer to the company. It is emphasised that in neither of their witness statements do Mr Young or Mr Hinson say that they thought of the company when they heard the words complained of. All the indications in the witness statements are that they took the words to refer to Mr Thornberry. Neither of them, it is submitted, state that they were aware that the company owned Shendish Manor. Indeed, Mr Young refers to Mr Thornberry as being the owner.
25. Of the objective second stage Mr Shields stresses that nowhere is it pleaded that the company traded as Shendish Manor. The words used are ones peculiarly applicable to an individual, words like "crook" and "after shaking hands with him", and cannot be applied to a corporate body. It is submitted that they are not capable of being understood by the ordinary, sensible person possessed of the knowledge that the publishees had to refer to the claimant company.
26. So far as the first stage is concerned, whether there was in fact publication of the words to someone who understood them to refer to the company, I have arrived at the same conclusion as Morland J. Nowhere in the witness statements of the two councillors, to whom the two remarks were said to have been made, is it said in terms that "I regarded these words as referring to the company", or "I thought of the company", or anything approaching thereto.
27. There is some evidence from Mr Hinson in his witness statement that he subsequently started, gradually, to look more sceptically at what he calls "Shendish applications", but this evidence is related to the period after 29th January 1998 and so is well after either of the alleged statements were made.
28. It is true that the remarks were made, at least to some extent, in the context of planning proposals where the company was involved. But it does not follow from that that those who heard the alleged remarks took them to refer to the company. Indeed, the evidence from Mr Young is to the contrary. In his witness statement, after referring to the alleged words on the occasion in September 1997, he sets out his response thereto as follows, paragraph 10:

"I responded that in that case, as a businessman myself together with all the rest of the businessmen in this country they must in her opinion be crooks and I felt that there was no point in continuing our discussion. I said goodnight to both of them and then left."

29. Mr Young then adds at paragraph 11:

"I first met Mr Thornberry during my mayoral year and knew to whom she was referring. I subsequently informed Mr Thornberry of what was said."

30. In subsequent paragraphs he makes repeated references to Mr Thornberry.
31. It is clear that Mr Young is saying that he knew that the respondent was referring to Mr Thornberry. Nowhere does he say in his witness statement that he regarded Mr Thornberry and the company as alter egos, yet Mr Hockman concedes that the publishee must be shown to have known that for the alter ego argument to succeed. Mr Young speaks of Mr Thornberry as being the driving force at Shendish but many leading company executives may be so regarded in respect of their companies without them being seen as the alter ego of their respective companies, that is to say one and the same.
32. In the case of Mr Hinson he describes his reaction to the alleged statement in December 1997 as one of amazement and adds at paragraph 11 of his witness statement:

"I was shocked by her description of Mr Thornberry."

33. Again, not merely is there no evidence that he took the words to refer to the company, but the evidence to be given points to the contrary.
34. For my part I do accept that there is a need for some caution when deciding whether to strike out a claim on the basis of witness statements exchanged in advance of the trial. The witness statement may be sufficiently ambiguous as to require elaboration orally. But in the present case, while the evidence shows the publishees were aware of Mr Thornberry's connection with the claimant company, there is nothing in those witness statements to show that they took the words heard as referring to the company.
35. It is well established in defamation cases that where a claimant is not identified in the words complained of, the facts and matters relied on to establish reference to that claimant have to be pleaded and subsequently supported by evidence. When a defendant seeks summary judgment in his favour, the claimant knows full well that that issue will be determined on the basis of the evidence put before the court and it behoves him to ensure that his evidence is there in sufficiently clear terms to show a realistic prospect of success in the claim.
36. In the present case the evidence does not show that Mr Young or Mr Hinson understood the alleged words to be referring to the company. That alone is enough to determine this part of the case. Nonetheless we have been addressed on the objective second stage test and it is right that I should indicate briefly my conclusions on that issue.
37. There can be no doubt that the alleged words about Mr Thornberry would have implications for the company in that subsequently councillors might have been inclined to look less favourably on planning proposals emanating from it. As Morland J said in his judgment:

"A slanderous allegation about the executive chairman of a company may well have an adverse effect on the company, but the company cannot succeed in the claim in slander unless it can establish that the defamatory message, albeit defamatory of its executive chairman, is defamatory of the company. Where, as in this case, the company is not referred to in the words complained of, the company must establish reference."

38. In essence it is contended by the appellants that such an objective observer would have seen Mr Thornberry and the company as one and the same, so that if the former was a crook and dishonest, that description was being applied to the company as well. Inevitably this must largely be a matter of impression.
39. However, for my part, I cannot accept that these express references, as alleged, to Mr Thornberry could be taken by an objective, albeit informed, observer as referring to the company. Although he may have been seen as the driving force behind the company, there is no evidence that he was known to own the company or was the majority shareholder. A jury could not, in my judgment, properly conclude that the alleged statements refer to the company. They were not words which, judged objectively, were capable of being understood by the ordinary, sensible person as referring to that corporate body.
40. For both these reasons therefore I would dismiss the appeal against the dismissal of the company's action.
41. I turn to the claim brought by Mr Thornberry. I deal with the renewed application for permission to appeal against those parts of Morland J's order in respect of which permission to appeal was refused on the documents. These fall into two groups.
42. The first group consists of pleaded allegations of republication of the slander, allegations which Morland J struck out. They are to be found in paragraphs 6.2, 6.4 and 6.5 of the particulars of claim.
43. Paragraph 6.2 pleads that part of the slander was repeated at a council meeting of 29th January 1998. This is based on part of the witness statement of Mr Young, who, at paragraph 15, refers to a meeting on that date when he stated to others that he was being told that Mr Thornberry "is only wanting to get planning permission 'to make a fast buck'". It is argued on behalf of Mr Thornberry that this was a republication of part of the original slander connoting sharp practice or shady dealing. Mr Hockman contends that this phrases implies immoral motives if not criminal behaviour.
44. One has to bear in mind that the natural and ordinary meaning of the original slander as pleaded in paragraph 4 of the particulars of claim is that:

"The claimant had committed a criminal offence and in particular one involving dishonest dealings and/or that the claimant was capable of acting in a dishonest and/or criminal manner."

45. That is not a meaning of which the reference to "making a fast buck" is capable. That phrases connotes making a quick profit and perhaps putting that objective before other factors. It does not, therefore, amount to a republication of the original alleged slander.
46. Next in this group is paragraph 6.4 of the particulars of claim. This reads:

"Shortly after 23rd December 1998 councillor William Killen told one Nicholas Hollinghurst that the defendant had called the claimant a crook."

47. That clearly is capable of being seen as a republication of the original alleged slander. It is submitted that the repetition was a natural and probable consequence of the initial publication. The issue here is one of causation. The judge held that the appellant had no realistic prospect of establishing that the chain of causation was not broken. This is something which turns on the facts. Councillor Killen had heard of the alleged slander, according to his witness statement, from Councillors Young and Hinson, that being a discussion between councillors who were all members of the borough council.
48. What the pleading is based on is the following passage from Councillor Killen's witness statement relating to late December 1998, just after an article had been published in a local newspaper:

"I had a telephone conversation with Mr Nick Hollinghurst, a past business acquaintance and a former Dacorum councillor. Amongst other matters we discussed the article. I then gave Mr Hollinghurst some background information about the reason why proceedings had been issued against Miss Coleman. I told Mr Hollinghurst that Miss Coleman had called Mr Thornberry a crook. Mr Hollinghurst said that he had had business dealings with Mr Thornberry and had found him to be an honest person to deal with."

49. It was argued on behalf of Mr Thornberry that as a former councillor Mr Hollinghurst was associated with the "council community" and therefore such repetition to him was to be seen as a natural and probable consequence of the original publication of the slander. Reliance is placed on a passage from the judgment of Bingham LJ in Slipper v The BBC [1991] 1 QB 283, at 300:

"The law would part company with the realities of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs."

50. One accepts that proposition, expressed as it is with the clarity and vitality which has come to expect from that learned judge. However, for my part, I cannot accept that it was the natural and probable consequence of a statement to one councillor that the statement would be repeated to a business acquaintance of his who was not currently involved in the work of the council. In my judgment, it is simply too remote and particularly so when the repetition comes over one year after the original alleged publication. The judge was right to strike out this subparagraph 6.4.
51. The third and last element is this first group is paragraph 6.5 of the particulars of claim. That pleads further republication by and to others "on dates unknown" to be inferred from certain alleged facts. Those facts are the alleged favourable treatment of other late green field site applicants, the "unjustified" rejection of another planning application made by the company, the "inherent probability" that the respondent has repeated the slander to others in the council and the alleged antipathy of the chairman of the development control subcommittee towards the company and Mr Thornberry.
52. Of this subparagraph the judge below said:

"... this plea and the evidence relating to it must be struck out because it would entail detailed examination of peripheral matters and consideration of the rationale behind the council's planning decisions, diverting the jury from the real issue in the case which is whether the alleged slanders were uttered by the defendant to Councillors Young and Hinson. In my judgment evidence relating to the council's decisions is prejudicial and not probative. Defamation cases must be kept within bounds so as to enable the jury to concentrate on the real issues, (see McPhilemy v Times Newspapers [1993] 2 All ER 775 per May LJ at 791B and Polly Peck Holdings v Trelford [1986] QB 1000 per O'Connor LJ at 1021B]."

53. The applicant argues that one can infer repetition of the slander from the attitude of the local planning authority towards him. Mr Hockman stresses that his clients wish to show bias by the local planning authority against Mr Thornberry and then to argue that it should be inferred from that that the slander had been repeated and indeed must have been repeated.
54. In my view, the judge was right to strike this out. It is an ill-founded attempt to infer further republication on an inherently flimsy basis. Any attempt to establish that basis would involve lengthy, detailed investigation of a multitude of planning matters of little relevance to the real issue. It would require looking at the planning merits of a number of sites and of the company's own planning application. That alone would necessitate detailed planning evidence conducted in front of a lay jury. Such a process would be wholly unjustified. In my judgment, this subparagraph was speculative and was rightly struck out.
55. The other category where permission to appeal was refused on the documents consists of the judge's striking out of a claim for exemplary damages. This is pleaded in paragraph 8(a) of the particulars of claim, on the basis that the respondent, when making her comments, "acted oppressively and/or in an arbitrary manner in her capacity as an elected representative or member of local government". The judge said of this part of the claim:

"Although it might be possible to envisage a situation where such damages might be theoretically recoverable against the leader of a council, for example, if speaking ex cathedra at a council meeting or at a council press conference uttering slanders for oppressive motives, such a situation does not arise in this case. The defendant allegedly made these slanders, in a sense, off the cuff to individual councillors after official meetings. In my judgment the claim for exemplary damages is clearly unsustainable, (see Gatley paragraph 9.15)."

56. It is submitted on behalf of the appellant that a jury could find the respondent to have been acting in her capacity as leader of the council and thus uttering the words in an arbitrary and oppressive manner in the sense used in Rookes v Barnard [1964] AC 1129. The jury should be allowed the opportunity to punish the respondent's wrongdoing if that is the view they take of it.
57. In Broome v Cassell [1972] AC 1027 it was indicated that oppressive or arbitrary conduct could be conduct on the part of local government servants as well as central government ones. Mr Hockman says that, at least in theory, defamatory remarks by a council leader could come into that category. He stresses that these remarks were made as part of a sequence of events anticipating later meetings and decisions. Although it is accepted by him that it has to be an abuse of power by a public official to come within this category of exemplary damages, he says that these remarks were designed to influence future meetings about the local plan, and that is why the respondent was saying these things to other councillors, they being the people who eventually would have to decide on the local plan proposals. Consequently the remarks should be seen as capable of being treated as an arbitrary abuse of power. It was premature for the learned judge to strike out this particular part of the pleading.
58. The basis advanced for this claim relies on the first of the categories of exemplary damages set out by Lord Devlin in Rookes v Barnard at page 1226:

"The first category is oppressive, arbitrary or unconstitutional actions by the servants of the government."

59. I entirely accept that "government" in this context is not confined to central government. In Broome v Cassell Lord Hailsham of St Marylebone, the Lord Chancellor, indicated that the category would extend to local officials exercising improper rights of search or arrest without warrant and that it might in the future include "other abuses of power by persons purporting to exercise legal authority".
60. Moreover, it is established that exemplary damages may be awarded in defamation cases falling into Lord Devlin's second category, which is where the defendant committed the tort knowingly because he calculated that the financial advantages of so doing probably outweigh the damages which he is risking. Broome v Cassell was itself a case of such an award.
61. It is, however, much less easy to envisage an award of exemplary damages in a defamation case falling into Lord Devlin's first category. I do not seek to suggest that it is impossible, but it is difficult to see how in practice such occasions are likely to arise. It would in any event, as Mr Hockman acknowledges, have to involve some form of abuse of power by the defendant in question. It would not be enough merely that the defendant was a local councillor, or even a leading local councillor.
62. But if it has to involve an abuse of power, the question arises: What power was being exercised and abused here by the respondent when she allegedly made these remarks? I cannot see that she was exercising any power as such. She may have been seeking to influence the exercise of power by the council, but that is not the same thing. This case is too remote from the type of case which falls within Lord Devlin's first category. In the circumstances of this case I agree with the judge that there is no realistic prospect of the facts being brought within that category of cases where exemplary damages may be awarded.
63. For these reasons I took the view that the renewed applications for permission to appeal should be dismissed.
64. I turn lastly to the appeal concerning the claim brought by Mr Thornberry. Permission to appeal was granted in respect of two parts of the order of Morland J in this action. The first part is that whereby the judge struck out part of the claim for aggravated damages. In the form pleaded the re-amended particulars of claim by paragraph 8(b) sought aggravated damages on the basis:

"(i) that the defendant's complete denial that she uttered the said words inherently involves a further serious imputation upon the claimant's witnesses and thereby on the honesty of Mr Thornberry (whose evidence is in various respects supportive of those witnesses);

(ii) that the said words were uttered maliciously and/or without belief in their truthfulness and/or the defendant was culpably negligent in failing to ascertain that the description of [the claimant] and/or Streetneat Ltd as a crook was true.

(iii) the absence of an apology."

65. By his order the judge struck out the whole of subparagraph (ii) and part of subparagraph (i) which was left so as to read:

"(i) of the defendant's complete denial that she uttered the said words."

66. His reasoning was:

"Nowhere in Mr Thornberry's 11 page statement dated 12th September 2000, tab 17 of the court bundle, does Mr Thornberry suggest that he suffered any additional injury to his feelings in the manner asserted by the learned pleader in the words which I have struck out in paragraph 8(b) (see Gatley paragraph 9.13)."

67. For the appellant Mr Hockman submits that the respondent's conduct of the case is a material consideration and that the appellant's feeling are likely to be injured by the imputation of dishonesty to his witnesses, Mr Young and Mr Hinson, and to himself. This relates to (i) in paragraph 8(B).
68. I find that impossible to accept. The respondent has denied that she said the words complained of. The appellant was not present on either occasion. There is no implication in the denial that he is being dishonest. There may not even be such an implication in respect of Mr Young and Mr Hinson, though that seems unlikely. But the appellant is not responsible for what he was told by Mr Young or Mr Hinson and it is not to be assumed that the hurt to the appellant's feelings is aggravated simply because the honesty of Mr Young or Mr Hinson may be challenged. His witness statement does not say that they will be so hurt. Nor is it implicit in the respondent's denial that she said those words that the appellant was not told those things by Mr Young or Mr Hinson, or that the appellant is being dishonest in saying that he was. For those reasons the judge was right to strike out that part of paragraph 8(B)(i).
69. I turn to paragraph 8(B)(ii). It is right that a claim for aggravated damages is essentially compensatory in nature and that such an award seeks to make good the additional injury caused to a claimant's feelings: see Lord Devlin in Rookes v Barnard [1964] AC 1129 at 1221. That is the basis on which aggravated damages may properly be awarded in appropriate cases because the defendant was motivated by malevolence or spite as Lord Devlin indicated. Likewise, the conduct of the case by or on behalf the defendant may be reflected in such an award. So there was nothing inherently proper in the claim in paragraph 8(B)(2) making reference to such factors.
70. The judge's decision on this paragraph seems to have turned on his view that the evidence in the witness statements did not expressly indicate that these factors had injured the appellant's feelings. However, the appellant does expressly say that he was "really outraged" by hearing about the second statement and that evidence is supported by Mr Young at paragraph 12.
71. The appellant does not explicitly tie this in with reference to the respondent's motives. But as a matter of common sense when the allegation is that someone is a crook one might properly infer that the outrage embraced some sense of malevolence or spite on the part of the speaker. That is the way in which I interpret the pleading as set out in paragraph 8(B)(ii).
72. In my judgment it was unjustifiable to strike out paragraph 8(B)(ii). The evidence goes far enough to support that allegation. I would therefore allow the appeal in so as far as it relates to the claim for aggravated damages pleaded in 8(B)(ii).
73. Finally, there is an appeal against the judge's decision to strike out various passages in the witness statements of the appellant, Mr Young, Mr Hinson and Mr Killen. These are numerous and detailed as set out in the judge's order. There is no transcript of the judge's reasons for striking out these various passages. This court is inevitably handicapped by that absence.
74. Some of the passages struck out clearly relate to issues which no longer form part of the case as a result of the judge's decision, and which, as indicated in this judgment, I would hold should not form part of the case. Those passages which relate to issues which are no longer in issue in the case should remain struck out. If and in so far as others relate to the claim for aggravated damages to the extent that I would allow the appeal, I would obviously allow those passages to be reinstated.
75. For my part I take the view that the parties should seek to agree which passages of the witness statements should remain struck out as a result of the decision of this court and which should not. The criterion must be one of relevance. If the parties cannot reach agreement, then, given the shortage of time before trial, this matter should be left to the trial judge to determine in the light of the judgments of this court.
76. To the limited extent which I have indicated, I would allow this appeal in respect of the claim by Mr Thornberry. I would dismiss the appeal of Shendish Manor Limited.
77. MR JUSTICE MAURICE KAY: I agree. I too have read the draft of the judgment produced by Mummery LJ. I agree entirely with that. I have nothing to add.
78. LORD JUSTICE MUMMERY: I agree with the judgment of Keene LJ. On the appeal by Shendish Manor Limited Mr Hockman QC applied for permission to adduce evidence. It is contained in two witness statements, one by Mr Young and the other by Mr Hinson. As already explained by Keene LJ, they are the alleged publishees of the slanders. They are not, it should be noted, new witnesses. Their main evidence is contained in two longer witness statements which were exchanged a year ago.
79. The application was opposed by Mr Shields QC on behalf of Miss Coleman. The application was refused during the course of the hearing for reasons to be given in the judgments delivered on the appeal and also on the applications and appeal by Mr Thornberry in his personal action.
80. It is provided in the CPR Part 52.11(2) that:

"Unless it otherwise orders the appeal court will not receive --

...

(b) evidence which was not before the lower court."

81. This evidence was not before the lower court. The power to receive such evidence on an appeal must be exercised so as to give effect to the overriding objective. This means that account must be taken of all the relevant circumstances. They include such matters as whether the fresh evidence could have been obtained with reasonable diligence for use in the lower court; whether the evidence, if given, would probably have an important influence on the result; and whether the evidence is in fact credible. The fact that those particular factors were highlighted in a decision of this court on the Rules of the Supreme Court nearly 50 years ago, Ladd v Marshall [1954] 1 WLR 1489, in no way diminishes their relevance to the overriding objective.
82. Account should also be taken of the nature of the proceedings and of the decision under appeal from the lower court. Unlike, for example, the recent case of Hamilton v El Fayed [2001] EMLR 394, this is not an appeal against a final order made following a trial in which oral evidence was given. As already explained by Keene LJ, this appeal is from an order of Morland J striking out the action by Shendish Manor on the ground that the alleged slanders were not capable of referring to, and were not in fact understood by the publishees to refer to, the company. They, could therefore not be defamatory of it.
83. The statements placed for the first time before this court are late attempts to expand the evidence of the two alleged publishees of the slanders. The absence of any affidavit or other evidence in support of the application exposes the principal and, in my view, fatal weakness in it, namely the lack of relevant material on which the court can properly be expected to exercise its discretion.
84. The original witness statements of Mr Young and Mr Hinson were exchanged as long ago as 22nd June 2000. The application to strike out the company's action was dated 12th April 2001. The application was heard by Morland J on 9th May 2001. The issue whether the alleged slanders were capable of referring to, or were understood to refer to the company, was fought on the basis of the witness statements exchanged in June 2000. The two supplementary witness statements were not produced to the other side or to this court until shortly before the appeal to this court was heard on 13th June. The statements were dated 7th June 2001 in the case of Mr Young and 8th June in the case of Mr Hinson. The company's skeleton argument in support of the paper application for permission made no mention of the fresh evidence. Indeed, the application for permission, which was dealt with on paper by Keene LJ on 11th June 2001, does not even include and was not accompanied by any application for permission to adduce fresh evidence.
85. The proposed grounds of appeal refer only to passages in the original witness statements made a year ago as evidence of the alleged slanders which were considered by the direct publishees to relate to the company. No explanation or excuse is offered for the production of the further witness statements at such a late stage. There appears to be no good reason for not having obtained the evidence at a much earlier stage either for inclusion in the original witness statements last year, or, at the latest, in supplementary statements for use before Morland J on 9th May 2001. The strike out application focused on the very issue whether the alleged slanders were capable of referring to, or were understood to, refer to the company.
86. The conduct of litigation in this manner, without even an attempt to explain the omission of such highly material evidence from the original witness statements, or to excuse the lateness of the production of supplementary statements from the very same witnesses, is not conducive to the attainment of the overriding objective. The parties are required to helped the court further that objective. This unexplained and inexcusable manner of conducting litigation does not enable the court to deal with the case justly, or to ensure that it is dealt with expeditiously or fairly: see CPR Part 1, 1.1(1) and (2)(d) and 1.3. For these reasons I was in favour of refusing the application for fresh evidence.