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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/609.html
Cite as: [2010] EWCA Civ 609, [2011] QB 497, [2010] FSR 30, [2011] 2 WLR 91, [2010] EMLR 23, [2011] 1 QB 497

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		Neutral Citation Number: [2010] EWCA Civ 609
		Case No: A2/2009/1683

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE TUGENDHAT
[2009] EWCA 1717 (QB)

Royal Courts of Justice
Strand, London, WC2A 2LL

02/06/2010

B e f o r e :

LORD JUSTICE SEDLEY
LORD JUSTICE RIMER
and
SIR SCOTT BAKER
____________________

Between:

	AJINOMOTO SWEETENERS EUROPE SAS	Appellant
	- and -
	ASDA STORES LIMITED	Respondent

____________________

Mr James Price QC and Mr Matthew Nicklin (instructed by CMS Cameron McKenna Llp) for the Appellant
Mr Andrew Caldecott QC and Mr Manuel Barca (instructed by Kempner Robinson Llp) for the Respondent
Hearing dates: 11 and 12 May 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Sedley :

In defamation cases, both civil and criminal, there has for centuries been a rule that the question libel or no libel is to be answered in respect of a single meaning. This is unproblematical where there is only one thing that the words can sensibly mean, but it can be highly problematical where reasonable people might put more than one construction on the words read in their proper context. By the early 17th century, in order to discourage suits and prosecutions (the latter almost all private and open to abuse – hence the concomitant development of the action for malicious prosecution), the courts had decided that such words were always to be construed in the most inoffensive sense reasonably possible – in mitiori sensu: see Mitchell v Brown 3 Inst. 167. This practice – it can hardly be dignified as a doctrine – was superseded after the Restoration by a rule that the impugned words were to be understood "according to the general and natural meaning, and agreeable to the common understanding of all men" (Townshend v Hughes (1676) 2 Mod. 159); or, as more vividly put by Levinz J in Naben v Miecock (1683) Skin. 183, "in their natural, genuine and usual sense and common understanding, and not according to the witty construction of lawyers, but according to the apprehension of the bystanders".

This, however, was another version of the single meaning rule. It still declined to recognise that two or more bystanders can perfectly reasonably make different sense of the same words. It simply shifted the preferred meaning to the middle ground. By virtue of Fox's Libel Act of 1792, the function of deciding meaning passed to the jury in both civil and criminal libel cases, but still subject to two things: that the judge must determine the outer limits of meaning, and that, within those limits, the jury's verdict of libel or no libel must relate to what they find to have been the meaning, not a meaning, of the words.

The fiction that there is a single reasonable reader, so that words, duly taken in context, have only one meaning, has remained embedded in the law of defamation. In his classic judgment in Slim v Daily Telegraph [1968] 2 QB 157, endorsed in Charleston v News Group Newspapers [1995] 2 AC 65, Diplock LJ said:

"… the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the 'right' meaning by the adjudicator to whom the law confides the responsibility of determining it.

Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel.

Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the 'right' meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single 'natural and ordinary meaning' which is 'right,' survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel."

In the circumstances it is surprising – it might even be thought gratifying - that neither of the very experienced leading counsel appearing in the present appeal could recollect a case in which a judge had had difficulty in directing a jury in accordance with the single meaning rule, or in which a jury had evinced difficulty in applying it.

This case

Aspartame is a sugar substitute which has attracted a measure of controversy but is a lawful food additive. The claimant is the European limb of one of the world's major producers and suppliers of it.

The defendant is a large supermarket chain, now a subsidiary of Walmart, which sells its own brand of health foods. Some of these carry a flower design, on one petal of which is written "No hidden nasties", together with a legend typically reading "No artificial colours or flavours and no aspartame".

Three possible meanings were ascribed to this packaging by the claimant:

A: That aspartame is harmful or unhealthy.

B: That there is a risk that aspartame is harmful or unhealthy.

C: That aspartame is to be avoided.

The defendant averred that it meant

D: That these foods were for customers who found aspartame objectionable.

In a meticulously reasoned judgment on the preliminary issue of meaning ([2009] EWHC 1717 (QB); [2010] 1 QB 204) Tugendhat J rejected meaning A outright. It accordingly leaves the stage. He found that a substantial number of consumers would derive meaning B from the packaging. He also found that a substantial number would derive meaning D from it. Meaning C, he found, added nothing to meaning B, and it too accordingly leaves the stage.

The judge then applied to meanings B and D the single meaning rule. This he took to require that "The court should not select one bad meaning where other non-defamatory meanings are available". His reasoning rested on article 10 of the European Convention on Human Rights and on the particular regard for it enjoined by s.12(4) of the Human Rights Act 1998. He accordingly took the single meaning to be D. On this finding, if it is to stand, the claimant loses.

So far I have deliberately said nothing about the cause of action. If it had been libel, James Price QC, for the claimant, would have contended that the judge had not only reverted to the old 'mitiori sensu' criterion rather than arrive at the informed preference which the law now requires but, in founding his choice on article 10, had accorded free expression inappropriate priority over the property right contained in article 1 of the First Protocol. But his principal case rests on the fact that this was not a libel action at all but a claim for malicious falsehood, a tort in which, he contends, the single meaning rule does not operate.

For the defendant, Andrew Caldecott QC accepts that no authority explicitly requires us to apply the single meaning rule to a malicious falsehood claim, but he contends, first, that no authority prevents it (which Mr Price for his part accepts) and, secondly, that there are solid jurisprudential reasons for maintaining parity of legal reasoning between the two classes of claim.

Does the single meaning rule apply to malicious falsehood?

The appellant's case

Mr Price's argument starts from the intellectual high ground of Diplock LJ's judgment in Slim. Even in libel the rule is an anomaly, explained but no longer excused by either history or practice. If we were starting from scratch, Mr Price suggests, nobody would try to justify such a rule, whether for judges sitting alone or for judges directing juries. The judge would, as he or she now does, eliminate unreasonable meanings as a matter of law and leave the rest to the jury. If they find that a significant segment of reasonable readers would think the words defamatory of the claimant, then it should be sufficient for a verdict of libel that a meaning of the words will have damaged the claimant's reputation. The damages will then reflect the inferred extent of the libel. Exactly the same would apply, but with narrative reasons, to a judge sitting alone.

Had Tugendhat J done that here, his finding that the packaging conveyed both meaning B and meaning D would have been as far as he was required to go. Insofar as it was then found at trial that meaning B would have adversely influenced customers – a finding which would give credit, so to speak, for the comparable reasonableness of meaning D – but no further, and subject to proof of malice and falsity, the claim would be made out.

To the argument that it would be mistaken in principle to draw such a line between libel and malicious falsehood, Mr Price replies that these are torts of different kinds: libel is an injury to reputation and thus a personal tort; malicious falsehood is an injury to property and thus an economic tort. In at least one of the other economic torts, the tort of passing off, Lightman J in Clark v Associated Newspapers [1998] 1 WLR 1558 held that it was enough to establish that one of the possible reasonable meanings of the publication would mislead a substantial number of people; but he also held that a single meaning was required for the statutory tort of false attribution of authorship.

In Vodafone v Orange [1997] FSR 34 Jacob J, invited by consent to find the single meaning of words sued on for malicious falsehood, said:

"As a comparative stranger to this branch of the law I find the "one meaning rule" strange, particularly for malicious falsehood. Without authority, I should have thought it would be enough to satisfy the criterion of falsity for the plaintiff to prove that the defendant made a statement which was false to a substantial number of people. That, for instance, is the position in passing off (a tort also concerned with false representations): for that tort it is enough to show that the representation fools some of the people, even if not most of them.

The reason for the libel rule in part relates to the entitlement of jury trial for libel (as Diplock LJ explained in Slim). Save in exceptional circumstances the right jury trial remains for libel and slander (see section 69(1) of the Supreme Court Act 1981) but there is no such right in relation to malicious falsehood. So it by no means follows that the historical reason for the rule in libel should apply to malicious falsehood. Another reason for the rule relates to the function of a jury in awarding damages for defamation: unless one has settled on a particular meaning one cannot judge the extent of the defamation. But in malicious falsehood damages are rather different: they are essentially compensatory for pecuniary loss as for most other torts. So again it does not seem necessarily to follow that the libel rule should apply to the tort. However, as I say, the parties were agreed that I should proceed on the basis that I am a notional jury identifying the single meaning of the words complained of."

To this Mr Price adds the laconic opinion of the Supreme Court of South Australia in Entienne v Festival City Broadcasters [2001] SASC 60, [41]:

"To insist upon an innocent interpretation where any reasonable person could, and many reasonable people would, understand a sinister meaning is to refuse reparation for wrong that has in fact been committed."

He also calls in aid what Lord Nicholls said in Charleston v News Group Newspapers [1995] 2 AC 65, 73-4:

"Newspaper readers will have seen only the banner headline and glanced at the picture. They will not have read the text of the accompanying article. In the minds of these readers, the reputation of the person who is the subject of the defamatory headline and picture will have suffered. He has been defamed to these readers. The newspaper could have no cause for complaint if it were held liable accordingly. It has chosen, for its own purposes, to produce a headline which is defamatory. It cannot be heard to say that the article must be read as a whole when it knows that not all readers will read the whole article.

To anyone unversed in the law of defamation that, I venture to think, would appear to be the common sense of the matter. Long ago, however, the law of defamation headed firmly in a different direction. The law adopts a single standard for determining whether a newspaper article is defamatory: the ordinary reader of that newspaper."

If this would, but for historical accidents, be the commonsense approach to defamation, why abandon common sense, Mr Price asks, when the claim is for malicious falsehood?

There is even so, as Mr Price acknowledges, a measure of practical as well as jurisprudential discomfort in having two different tests of meaning in what may be single lawsuit for libel and malicious falsehood, albeit one necessarily tried without a jury, since malicious falsehood carries no such right. The judge may, in the present state of the law, be required to adopt a single meaning for the one tort and a range of meanings for the other. But such complexity, Mr Price suggests, as well as being quite manageable, will be in good company, for there are already different burdens of proof (in malicious falsehood the claimant must prove falsity; in libel the defendant must prove truth), different requirements in relation to malice, and a need to prove different kinds of harm.

The respondent's case

To Mr Price's persuasive argument Mr Caldecott has advanced a formidable response. The single meaning rule, he submits, while artificial, affords a balancing mechanism of sufficient significance that to abandon it would bring an unpredictable range of consequences in its wake. The balance it strikes is between the need to protect reputation and the use of factitious complaints to inhibit free expression, and between both of these and the entitlement of the public to be informed. It moves the law into the middle ground between the author's intent, a test highly favourable to defendants, and multiple meanings, a test which puts all the cards in the claimant's hand. Having ruled out untenable meanings, the court proceeds by fixing on the most tenable one and trying out the question whether it is libellous. This is practical and fair.

Moreover, Mr Caldecott submits, the possible variety of meanings is factored into the single meaning rule itself. Neill LJ, whose expertise in this field is unrivalled, said in Hartt v Newspaper Publishing plc (26 October 1989, CA, unreported), at 15:

"The hypothetical reasonable reader … must be treated as being … someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available."

Moreover, Lord Nicholls, giving the opinion of the Privy Council in Bonnick v Morris [2003] 1 AC 300, said at §21:

21. ….The "single meaning" rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear: see the familiar exposition by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171-172. The law attributes to the words only one meaning, although different readers are likely to read the words in different senses. In that respect the rule is artificial. Nevertheless, given the ambiguity of language, the rule does represent a fair and workable method for deciding whether the words under consideration should be treated as defamatory. To determine liability by reference to the meaning an ordinary reasonable reader would give the words is unexceptionable.

Notwithstanding that the Privy Council went on to disapply the principle in relation to the Reynolds defence, Mr Caldecott can at least rely on this as an antidote to the bane of Lord Nicholls' remarks in Charleston (where, indeed, Lord Nicholls had gone on to accept that, given the huge variety of ways in which mass circulation papers were read and interpreted, it was the very crudeness of the single meaning yardstick that, from the point of view of the law, justified it).

He can also place some reliance on the report of the Faulks Committee on Defamation (1975), which cited the trenchant comments of Diplock LJ in Slim but, acknowledging that these were powerful criticisms, concluded nevertheless that the defects were "inherent in a system which prescribed the criterion as the interpretation of the ordinary reader." The report (§102) went on:

"We hold strongly that this is the correct test since it most nearly approximates to the actual meaning or meanings which the actual readers of the publication as a class are likely to have placed upon the words complained of."

If this makes sense in libel, it is submitted, it makes equal sense in malicious falsehood.