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||Neutral Citation Number:  EWCA Civ 1644
||Case No: A2/2000/3896
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
||Royal Courts of Justice
London, WC2A 2LL
Thursday 8th November 2001
B e f o r e :
LORD JUSTICE SIMON BROWN
LORD JUSTICE MANTELL
LORD JUSTICE LATHAM
|| CARLTON COMMUNICATIONS PLC & ANOTHER
||- and -
||NEWS GROUP NEWSPAPERS LTD
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Andrew Caldecott, QC & Matthew Nicklin (instructed by Messrs Farrer & Co for the Appellants)
Mr Patrick Milmo, QC & Godwin Bussutil (instructed by Messrs Schillng & Lom and Partners for the Respondents)
HTML VERSION OF JUDGMENT
Crown Copyright ©
LORD JUSTICE LATHAM:
- In three editions of the News of the World newspaper, articles and leaders were published by the appellants alleging that a number of programmes by the well known television investigative reporter Roger Cook were fakes. Subject to arguments which do not concern us in this appeal, the respondents accept that they were responsible for these programmes. In proceedings brought for libel against the appellants in relation to the words referring to the Cook Report programmes, the appellants seek to justify the allegation that they were fakes, but further wish to assert that the words in their context were capable of meaning that the respondents were not only responsible for faking the programmes about which specific complaint is made, but also a programme "The Connection" broadcast in 1996. This programme was about heroin smuggling, in relation to which an allegation of fakery was made in May 1998, which was, after an inquiry instigated by the respondents themselves, held to be well founded. The result was that the Independent Television Commission fined the respondents £2 million. The appellants wish to place before the court the material relating to "The Connection" which they can clearly justify, on the basis that the words complained of were, in their context, capable of meaning that the respondents were responsible not only for broadcasting the programmes by Roger Cook which are said to be fakes, but also "The Connection" which has been found to have been faked, and that the sting of the libel was therefore that the respondents had been responsible for more than one fake programme or series of programmes. In interlocutory proceedings, Eady J struck out this extended Lucas Box meaning contended for by the appellants, and the particulars of justification pleaded in support, on the grounds that the words complained of in their context were not capable of bearing that extended meaning, and that in any event, as a matter of case management, the issues before the court at trial should be restricted to those relating to the Cook Report programmes. The appellants accept that the decision as to the available meaning of the words complained of is a matter for the judge with which this court will be slow to interfere, and that case management decisions are essentially a matter for the judge's discretion, and again should not be lightly interfered with by this court. Nonetheless they submit that Eady J's decision is plainly wrong in the present case.
- The articles were published in editions of the News of the World for the 13th February 2000, the 20th February 200 and the 2nd April 2000. The headlines on the front page of the edition on 13th February 2000 read:
"ROGER COOK SHOWS FAKED
TV CRIME BUSTING series The Cook Report is today exposed as a cynical scam"
- The story continued over four further pages of that edition highlighting in particular four programmes. There was a cartoon referring to the Cook Report, and a leader. All this material was designed to make good the appellant's claim that the programmes were shams, and that the assertion in the headline could be made good. There were references to the respondents making it plain that they were responsible for the relevant programmes, as follows:
"Tele-detective Roger Cook's bosses at Carlton TV last night launched an immediate probe into our evidence of programme faking ….
Carlton are particular concerned because Cook is due back on screen soon with a new series of special investigations, beginning with an investigation into Yardie gangs."
- In an addendum to one part of the articles, the respondents said:
"TV Company Carlton was hit with a record £2 million fine for a 1996 show on the Colombian drug trade. It won several awards but was exposed a fake."
- In the edition on 20th February 2000, the respondents published a two page spread alleging further faking of the Cook Report, and a further leader. In one part, the respondents said that they had given their dossier of evidence to the ITC. It concluded:
"The ITC will seek an explanation from Carlton Television before deciding on action.
We offered to go through the Cook Report tapes with Carlton to point out faked sequences. They refused the offer."
- In a side article on the same pages, which contained the respondents logo, and under the heading "Heroin Show a Phoney", the respondents said:
"Carlton bosses have been hit by a series of rebukes by tele-watchdogs.
They were fined £2 million over a 1998 documentary on heroin smuggling – then had to hand back eight prizes the show won.
A probe by the Independent Television Commission showed that the programme The Connection was phoney from beginning to end ….."
- In the edition on the 2nd April 2000, the front page carried a headline:
"Cook Report: 7 new lies."
- The alleged lies were set out in a two page spread in which the only references to the respondents were passing references to the use of a "Carlton TV car" and "float money provided by Carlton TV"
- There was also a leader which made no reference to the respondents.
- In their particulars of claim, the respondents complained of the words used in those articles and leaders so far as they alleged that the Cook Report programmes were fakes. Although they did not complain about the addendum in the articles in the edition of the 13th February 2000, or of the side article in the edition of the 20th February 2000, they relied on those passages and the other references to "Carlton" to assert that readers would consider that the articles referred to the respondents.
- The meaning which the respondents allege is that the words complained of meant that they had deliberately or recklessly perpetrated a gross and cynical deception on viewers of the Cook Report by repeatedly producing and broadcasting television programmes in that series which they knew or should have known were in their entirety worthless and ridiculous fakes.
- The defence, in the form with which the judge was concerned, admitted publication, made no admissions as to the assertion that the reader would consider that the articles referred to the respondents, made no admission as to the meaning alleged, and then pleaded justification in the following terms, so far as relevant:
"14. Further and in the alternative, and in so far as the articles bore all or any of the meanings below the defendant contends that they are true in substance and in fact. If and in so far as may be necessary, the defendant will rely upon s. 5 of the Defamation Act 1952.
Articles published on the 13th February 2000, 20th February 2000 and 2nd April 2000 (and see paragraph 6, 10 and 14 of the particulars of Claim)
A. That the claimants:
1. Were responsible for producing and broadcasting television programmes which they knew or should have known were cynical fakes; and
2. Were, or there were reasonable grounds to believe that they were, responsible for the shameful deception of television viewers, including viewers of the Cook Report……"
Thereafter followed the particulars of justification, paragraphs 14.3 to 14.6 which related solely to "The Connection".
- The applications before the judge were in the following form:
"1. Under CPR r. 3.4(2)(a) and/or (b) and/or (c) and/or in the inherent jurisdiction of the court paragraph 14(A) of the defence be struck out after a ruling on meaning under paragraph 4.1(1) of the Practice Direction to Part 53 of the CPR that the articles published in the issues of the News of the World for 13th February, 20th February and 2nd April 2000 referred to in paragraph 2, 3, 6, 7, 10 and 11 of the defence are not capable of bearing the meaning or meanings attributed to them in paragraph 14(A) of the defence;
2. Further or alternatively, the CPR r. 3.4(2)(a) and/or (b) and/or in the inherent jurisdiction of the court, the following particulars of justification in the defence be struck out because they are not capable of justifying any meaning which the articles published in the issues of the News of the World doe 13th February, 20th February and 2nd April 2001 referred to in paragraphs 2, 3, 6, 7, 10 and 11 of the defence are capable of bearing: paragraphs 14.3 to 14.6 …."
- The respondents' case was that the articles are in essence about the Cook Report and the words complained of could not carry the extended meaning contended for by the appellants. Accordingly, it was submitted that the extended meaning should be struck out at an interlocutory stage together with the particulars said to justify it. The judge dealt with the issues before him between pages 9 and 11 of the transcript of his judgment in the following terms:
"Carlton raises the following objections to the Lucas Box particulars at paragraph 14(A). Mr Milmo says the particulars are impermissibly wide in so far as they are not confined to "Cook Report" programmes. Only an unreasonable reader, he argues, avid for scandal would take the articles to be making any broader allegation against Carlton. Despite this, by the pleaded meanings, the defendants seek to widen the dispute to take in any programme produced or broadcast by Carlton. The defendants have formulated their meanings transparently so as to introduce material, purportedly in justification of the allegations made about Carlton's conduct in relation to the "Cook Report", which has in reality no bearing upon that issue. In particular, the details relating to a programme called "The Connection" which are set out in paragraphs 14.3 to 14.6 of the particulars of justification.
It is submitted that I should not permit the defendants to extend the ambit of the investigation required to determine this issue into areas not pertinent to the matters genuinely relating to the Cook programme, even though "The Connection" is in passing referred to in the body of at least one of the articles.
It seems clear that the mere fact some other incident to a claimant's discredit appears in the words "complained of" does not mean that the claimant cannot sue without doing battle on that front as well, see for example the approach of the Court of Appeal adopted in US Tobacco –v- BBC  EMLR 816.
Miss Rogers, appearing for the defendants, mentioned as one of her worries the general principle that defamatory words appearing in an article are presumed false unless and until the defendant seeks to prove the contrary. In the light of that principle, she was concerned that the jury might be given a false impression as to Carlton's role over the programme called "The Connection". Factors of that kind did not inhibit the Court of Appeal in US Tobacco –v- BBC from drastically narrowing the issues.
Mr Milmo accepts that the jury could not be given a false impression. They could not be left in the position of believing that the allegations about "The Connection" in the article to be other than accurate. Equally, however, they would have to be told that it does not in itself affect the issues they will have to determine as to the truth or otherwise, about the allegations about faking "The Cook Report" programmes.
Mr Milmo argues also that the articles complained off are not capable of bearing the alternative lower meaning pleaded in paragraph 14(A)(2) of the defence, to the effect there were "reasonable grounds" to believe the claimants responsible for producing and broadcasting fake programmes. He submits that the articles could not reasonably be understood to be charging his clients with anything less than actual responsibility for producing and broadcasting fakes in "The Cook Report" series, accordingly, the clause which introduces the impermissible lower meaning should be struck out. Moreover there is nothing in the articles to suggest the charge related to television programmes in general but "including" the "Cook Report".
Even if it is technically possible to read into the articles a general charge of faking programmes, Mr Milmo submits that the target of the newspapers reports was clearly "The Cook Report", and that is the entire focus of Carlton's complaint. Thus the essential issue is the truth or falsity of that charge, and is a matter of case management, if for no other reason, the trial should be confined to a determination of that issue.
I agree with Mr Milmo's submissions and rule that the ambit of the defence should be confined accordingly. In particular, it seems to me that he is right in his primary submission that the words are incapable of bearing the wider meaning contended for."
- Accordingly he struck out paragraph 14(A) in its entirety, and the particulars supporting the clear justification in so far as it related to "The Connection", namely paragraphs 14.3 to 14.6 of the defence.
- I can readily understand the judge's concern to exercise case management control over the ambit of the dispute. This action is only one of a number of actions for libel against the appellants arising out of the publications in question. The other actions all relate, and relate only, to the allegations in respect of the Cook Report programmes. It would clearly be preferable if some, if not all, of those actions are heard together so as to save overall costs; and to add the issue relating to "The Connection" which only concerns these respondents could divert time and energy to what might be considered a peripheral issue. But it is clear that the judge did not simply make his order on case management grounds; he expressly agreed with the respondents' submission that the words complained of are incapable of bearing the wider meaning contended for in paragraph 14(A) of the defence.
- In approaching the issue of meaning, it is accepted by both parties that the judge directed himself correctly as to the principles of law. He said at page 3:
"It is for the judge to rule whether the words complained of are capable of bearing a particular meaning or meanings. The proper rule for the judge, when adjudicating upon such a question is to evaluate the words complained of and to attempt to delimit the range of meanings of which the words reasonably capable. If he decides that any pleaded meaning falls outside the permissible range, then he has a duty to rule accordingly.
In deciding whether words are capable of conveying a particular defamatory meaning or meanings, the court should give the article the natural and ordinary meaning which it would have conveyed to an ordinary reasonable reader reading the article once. Hypothetical reasonable readers are not naive or unduly suspicious. They can read between the lines and engage in loose thinking, but they should not be taken to be "avid for scandal". The court should reject such meanings as can only emerge as the product of some strained or forced or utterly unreasonable interpretation. There should be no over elaborate analysis of the words in question. It is to be remembered that a reader would not analyse an article in a newspaper as a lawyer or an accountant would analysis a documents or accounts. The judge may have regard to the impression the article had upon him in expressing what impact it would have made on such hypothetical reasonable reader. The court should not adopt to literal an approach.
The purpose of the jurisdiction to make a ruling on meaning is to enable the court to fix in advance the ground rules on permissible meanings for the purposes of assessing the degree of injury to the claimant's reputation and for the purpose of evaluating any defence raised, but in particular, of course justification or fair comments."
- It can be seen from the passage in his judgment which I have cited in which he sets out his decision, that he did not approach the resolution of the issue in the present case by any detailed exegesis. He clearly considered that it could be determined as a matter of impression. In determining whether or not he was right, it seems to me that we should approach this case in the same way that Sedley LJ approached a similar issue in Berezovsky & Another –v- Forbes Inc & Another, judgment in which was given on the 31st July 2001. In the transcript at paragraph 16, Sedley LJ said:
"The real question in the present case is how the courts ought go about ascertaining the range of legitimate meanings. Eady J regarded it as a matter of impression. That is alright, it seems to us, provided the impression is not of what the words mean but of what a jury could sensibly think they meant. Such an exercise is an exercise in generosity not in parsimony. It is why, once fairly performed, it will not be second guessed on appeal by this court: the long stop is the jury. It is also why, if on an application for permission to appeal it appears that the judge erred on the side of unnecessary restriction of meaning, this court –though it will always be mindful of what Brooke LJ said in Cruise -v– Express Newspapers  QB 931 about self denial in libel cases – may be readier to take another look. In those cases where it does so, its decision is akin to (and strictly speaking probably is) a holding of law. It will have careful regard to the judge's view but the view it comes to on the legitimate ambit and meaning will be its own. That is the approach we propose to take here."
- Untrammelled by authority apart from those which established the basic principles which the judge accurately summarised in the passage to which I have already referred, I would have had little difficulty in concluding that the judge was plainly wrong in his conclusion as to meaning, perhaps because of his understandable concern, as I have already said, to limit the trial to what he considered to be the real issue. It seems to me that the ordinary reader faced with the addendum and the side article could well be asking himself or herself what the purpose of those passages were if they were not meant to indicate that the respondents were "doing it again", to use a relatively loose phrase. What other purpose could there have been in referring to "The Connection"? At the least such a reader could conclude that they were responsible for more than one fake programme or series of programmes, and at worst, that these are perhaps merely two examples. This, put simply, is the argument put forward by Mr Caldecott QC, for the appellants. He submits that the judge was right to treat the matter as one of impression but clearly wrong in the conclusion to which he came. The words complained of in their context, that is, reading the articles as a whole, are clearly capable of carrying the extended meaning for which he contends.
- Mr Milmo QC, on behalf of the respondents, submits that we must approach the question of meaning rather more rigorously than this broad brush way. He submits as a starting point that the issue is whether or not the words complained of by the respondents are in their context capable of having the wider meaning not whether the article as a whole is so capable . Looked at from that perspective, he submits that even in the context of the articles it is clear that the thrust of the article is such that the meaning of the words complained of is restricted to an assertion that the Cook Report programmes were fakes. For this submission he did not rely on any authority, save for the general proposition, exemplified by the decision of this court in Bookbinder –v- Tebbit  1 WLR 640, that the mere assertion of one instance of wrong doing (in that case the alleged squandering of public money) does not carry with it a general allegation of financial irresponsibility: see the judgment of Ralph Gibson LJ at page 648.
- If indeed the court is restricted to looking simply at the words complained of then there would be force in Mr Milmo's submission. But it seems to me that the law clearly requires the court to look at the broad context of the publication in which the words complained of appear as Mr Milmo himself concedes. In doing so, the court is not concerned with niceties of textual analysis, but with the real world of the ordinary reader's understanding. The principles are best set out, in my view, in the judgment of O'Connor LJ in Polly Peck (Holdings) plc & Other –v- Trelford & Others  QB 1000, where he said at page 1020 e:
"The first principle is that where a plaintiff chooses to complain of part of a whole publication the jury is entitled to see and read the whole publication: this is unchallenged and has been the law for well over 150 years. What use is the jury permitted to make of the material now in evidence?
There is no doubt that they can use it to provide the context to the words complained of when considering whether any, and if so what, defamatory meaning was disclosed…..
What other use can be made of the material depends on its nature and on the defences put forward by the defendant.
The second principle is where a publication contains two distinct libels, the plaintiff can complain of one and the defendant cannot justify that libel by proving the truth of the other. The difficulty with this apparently self evident proposition is in deciding whether the two libels are indeed distinct in the sense that the imputation defamatory of the plaintiffs character in the one is different from the other.
The third principle is that it is for the jury to decide what the natural and ordinary meaning of the words complained of is. This simple proposition has become enmeshed in the question how far can the plaintiff by his pleading, limit the meanings that may be canvassed at trial.
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."
- Later, at page 1032 b he said:
"In cases where the plaintiff selects words from a publication, pleads that in their natural ordinary meaning the words are defamatory of him, and pleads the meaning that he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiffs. The defendant is entitled to plead that in that meaning the words are true and to give particulars of the facts and matters upon which he relies in support of his plea as he is required to do by RSC Ord. 82. It is fortuitous that some or all of those facts and matters are culled from parts of the publication of which the plaintiff has not chosen to complain.
Where a publication contained two or more separate distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the other by way of justification.
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. 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 for fortuitous that what is in fact similar fact evidence is found in the publication."
- Mr Milmo submits that if, looking at the publication as a whole, it is proper to have regard to the allegations relating to "The Connection", then these amount to a separate and distinct libel which either as a matter of law or as a matter of case management should not be capable of being raised as an issue before the court. He accepts that it would be necessary for the jury to be told something about the facts relating to "The Connection", but submits that that could be satisfactorily dealt with by an agreed statement making it clear that those facts have no relevance to the issue before the court relating to the Cook Report allegations. He accepts that there is an argument now for saying that the facts relating to "The Connection" could be relevant on the issue of damages (see Burstein –v- Times Newspaper Ltd  1WLR 579), but submits that as the issue has not at present been pleaded as a matter relating to damages, that question does not arise before us.
- He has referred us to two cases in particular in which the courts have considered that two separate libels have been contained in the same publication or series of publications. The first is United States Tobacco International Inc & Anr –v- British Broadcasting Corporation  EMLR 816 which was referred to by the judge in his judgment. This was a decision of this court in 1988. It related to the broadcast of a programme about a substance known as oral snuff which was considered by the government to present a danger to health. The programme asserted that the substance was carcinogenic and that the plaintiffs were in breach of an agreement that they had entered into with the Department of Health restricting the marketing of the product and forbidding its sale to young people. The plaintiff issued proceedings complaining of the allegation of a breach of the agreement. The defendants sought to plead and justify as part of the issues before the court the assertion that oral snuff presented a health risk. The plaintiffs were prepared to agree a statement which would go before the jury to the general effect that there was a significant body of medical opinion which considered the substance to be carcinogenic.
- Purchas LJ and Nicholls LJ held that although there was a connection between the two allegations, in that the reason for the agreement was the existence of what the Government perceived to be a health risk, nonetheless the defendant should not be permitted to plead and justify the health risk allegations. They both considered that a just determination of the dispute did not require a resolution of the health issue. Nicholls LJ said that its only relevance, in any event, was to damages. Russell LJ considered that they were in any event two separate and distinct allegations, and that therefore the defendant should not be permitted to raise the allegation about which no complaint had been made by the plaintiffs.
- The second case is Cruise –v- Express Newspaper plc & Another  QB 931. The plaintiffs complained of an article which made serious allegations about their private life, and included defamatory comments about their adherence to the Church of Scientology. The defendants sought to justify the allegations relating to the Church of Scientology, even though those were no part of the plaintiffs' complaint. The judge struck out the defence in so far as it sought to justify the allegations in relation to the Church of Scientology. On appeal, this court upheld the judge. Brooke LJ, in his judgment with which the other members of the court agreed, concluded that the "sting" about their characters of which they complained was totally distinct from the "sting" that the article contained about their adherence to the Church of Scientology. Even though those allegations were clearly bound up in the other allegations, so that the whole of the article had to go before the jury, he concluded at page 955 f:
"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 defendant 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."
- Accordingly Mr Milmo submits that, in the present case, the parts of the articles which refer to "The Connection", and its consequences for the respondents, constitute a separate and distinct "sting" which should not be permitted to divert the court from consideration of the real issue, namely the question of whether or not the appellants can justify the allegations in relation to the Cook Report.
- I do not consider that these decisions in any way affect the conclusion that I reached, essentially as a matter of impression, in paragraph 19 above. Whether or not the appellants are wise to seek to expand the meaning of the articles in the way they do is a matter for them. But the meaning for which they contend seems to me to be one which is clearly capable of being understood by the ordinary reader. It follows that this is not a case where the defendants seek to assert and justify a separate sting; two separate allegations are capable together of forming one single allegation which, subject to any considerations of case management, the appellants should be entitled to seek to justify.
- In a proposed re-amended defence, the form of the allegation in paragraph 14. A has been refined as follows:
"That the claimants
1. Were responsible for producing and broadcasting television programmes alternatively Cook Report and "The Connection" television programmes, which they knew or should have known were cynical fakes:
2. Were (deleting "or there were reasonable grounds to believe that they were") responsible for the shameful deception of television viewers, including viewers of the Cook Report and "The Connection""
I consider that this formulation of possible meanings properly reflects the view that I have expressed above, carrying with it, as it does, the sting that the respondents were responsible for more than one fake programme or series of programmes and could therefore be said to have caused or permitted a culture to develop in which fakery was possible. That seems to me to be a single libellous allegation, of which "The Connection" simply forms an evidential part. It follows that the judge was, in my view, wrong to have accepted Mr Milmo's submissions as to the meaning of the words complained of.
- That still leaves the question as to whether or not, despite the fact that the particulars are permissible as a matter of law, the court should strike them out in its discretion exercising its case management powers. There is no doubt that it has jurisdiction to do so. Under CPR Part 3.1(2)(k) the court is entitled to exclude an issue from consideration if to do so would further the overriding objective. In the present case, it is clear that excluding the issue would save expense and shorten the hearing to some extent. The question is whether on the one hand the added expense and time would be proportionate to the significance of the issue, and on the other whether to exclude it would produce unfairness.
- The respondent's argument is that the issue can be satisfactorily dealt with by way of an agreed statement as in US Tobacco and Cruise. Such a statement, as proposed to Eady J, and refined in subsequent correspondence, set out a series of agreed facts as to the findings of the inquiry, and the order of the ITC. This, it is said, would ensure that the court was fully informed, without having to consider the detail, or allow its judgment to be clouded by what the respondents say is the main issue, by consideration of the peripheral issue.
- It seems to me, however, that this would not deal fairly with the appellants' case. It would preclude the appellant from asking the jury to consider a permissible meaning to be given to the words complained of. The evidence relating to the issue itself can be the subject matter of case management orders by the judge. It is to be noted that in US Tobacco and Cruise, the issues which the defendants in those cases sought to raise were far reaching, general, and highly contentious. Trying the issue as to the carcinogenic properties of oral snuff would completely overshadow consideration of the breach of agreement in US Tobacco; the trial of the issues as to the validity of the Church of Scientology as a rational belief system would have overshadowed consideration of the specific allegations relating to the plaintiffs' family life in Cruise. The same considerations simply do not arise in the present case. The underlying facts are likely to be uncontentious: there may be issues as to what steps were taken by the respondents as a result of the findings of the inquiry, but again these are unlikely to produce any significant disputes of fact. It follows that, in my judgment, there is no good reason as a matter of case management, for precluding the appellants from relying on the issues which they say arise out of the inclusion of "The Connection" in the articles containing the words complained of.
- For these reasons I would allow the appeal. As to the proposed re-amended defence, it seems to me that the best course would be for application to be made to the judge for permission to re-amend in the light of the judgments of this court, so that consideration can be given to the extent to which the words in paragraph 14 A and the particulars of justification fully reflect the views of this court. This will preclude any, or at least any immediate, need for an application to re-re-amend.
LORD JUSTICE MANTELL:
- I have had the opportunity of reading the judgment of Simon Brown LJ in draft and for the reasons he gives as well as those contained in the judgment of Latham LJ I, too, would allow this appeal.
LORD JUSTICE SIMON BROWN:
- I gratefully take all the facts and much of the law as set out in Latham LJ's judgment. My own judgment can be correspondingly shorter. I write it because the point it raises is one of obvious interest and importance.
- Although ostensibly this appeal is about the meaning which particular words are capable of bearing, to my mind it is about no such thing. It is perfectly obvious what the words complained of mean: since Carlton complain only of those parts of the publications which allege that the Cook programmes were fakes, plainly that and no more is what the words complained of mean. Equally plainly, however, the publications as a whole mean that not only were the Cook programmes faked, but so too was The Connection, and Carlton were responsible for both. Test it in this way. Had not Carlton but in fact some other television company broadcast The Connection (and the journalist simply made a silly mistake about this) it is inconceivable that Carlton would not also have sued in respect of that part of the publications. Whilst, therefore, in the long passage from the judgment below cited in paragraph 14 of Latham LJ's judgment Eady J says: "Only an unreasonable reader [Mr Milmo argues] avid for scandal would take the articles to be making any broader allegations against Carlton [than about the Cook programmes]", this really is not so: it is only so if one is talking about the words complained of, not about "the articles".
- In truth what the appeal is about is quite different: it is about whether the appellants are entitled to invoke the undisputed truth of the allegation they make about Carlton's responsibility for The Connection in support of their plea of justification with regard to the Cook programmes. In paragraph 14(A) of their proposed re-amended defence they seek to contend that the claimants:
"1. were responsible for producing and broadcasting television programmes, alternatively Cook Report and The Connection television programmes, which they knew or should have known were cynical fakes; and
2. were responsible for the shameful deception of television viewers, including viewers of the Cook Report and The Connection."
- Both of those sub-paragraphs appear to me to be saying essentially the same thing: that Carlton at the very least should have known that both these programmes were cynical fakes and so were responsible for the shameful deception of their viewers. In fining Carlton £2 million for broadcasting The Connection the ITC found that they needed to review their "mechanisms and culture" generally in relation to the commissioning and production of such programmes. The central question arising on the appeal is whether the appellants can properly advance this case or whether instead, as the respondents contend and as Eady J held, The Connection has nothing whatever to do with this case unless and until one reaches the issue of damages. This seems to me a question not of meaning but rather of the proper understanding and application of what for the most part are well-established legal principles.
- The starting point for consideration of these principles is O'Connor LJ's judgment (with which Robert Goff and Nourse LJJ agreed) in Polly Peck plc v Trelford  QB 1000. Although Latham LJ in paragraphs 21 and 22 of his judgment has already set out the main passages from O'Connor LJ's judgment, it is convenient to repeat and consider in turn what he said about each of the first two principles:
"The first principle is that where a plaintiff chooses to complain of part of the whole publication, the jury is entitled to see and read the whole publication: this is unchallenged and has been the law for well over 150 years. What use is the jury permitted to make of the material now in evidence?
There is no doubt that they can use it to provide the context of the words complained of when considering whether any, and if so what, defamatory meaning is disclosed. A classic example of the context deciding the meaning of words to be different to their face value meaning is found in Thompson v Bernard (1807) 1 Camp.47, a slander action where the plaintiff complained that the defendants said of him: 'Thompson is a damned thief; and so was his father before him; and I can prove it.' The evidence was that the defendant added: 'Thompson received the earnings of the ship, and ought to pay the wages.' Lord Ellenborough CJ directed a non-suit on the ground that it was clear from the whole conversation that the words did not impute a felony, but only a mere breach of trust." (p.1020 e-g)
"In cases where the plaintiff selects words from a publication, pleads that in their natural and ordinary meaning the words are defamatory of him, and pleads the meanings which he asserts they bear by way of false innuendo, the defendant is entitled to look at the whole publication in order to aver that in their context the words bear a meaning different from that alleged by the plaintiff." (p.1032 b-c)
- This principle, therefore, relates to what the words complained of (when part only of a larger publication) mean in their context (the whole of the publication). This principle accommodates what are sometimes called "bane and antidote" cases, of which, indeed, Thompson v Bernard is a good example, the added words lessening the defamatory meaning of the words complained of from a felony to "a mere breach of trust". This, therefore, is a principle designed to prevent a claimant from unfairly contending for an artificially high defamatory meaning.
- I turn to the second principle:
"The second principle is that where a publication contains two distinct libels the plaintiff can complain of one and the defendant cannot justify that libel by proving the truth of the other. The difficulty of this apparently self-evident proposition is in deciding whether the two libels are distinct in the sense that the imputation defamatory of the plaintiff's character in the one is different from the other." (pp.1020 h-1021 a)
"Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.
"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." (p.1032 c-e)
- This principle, therefore, relates to the publication as a whole and allows the defendant (subject only to case management considerations) to plead, by way of justification of the allegation complained of, the truth of a second defamatory statement, provided only that the two allegations have a common sting and so are not to be regarded as separate and distinct. It is a principle which goes to the scope of the substantive defences available to the defendant and has nothing to do with the meaning of the words complained of, save only insofar as it is necessary to decide as a matter of fact and degree whether the two defamatory statements do or do not have a common sting.
- Polly Peck itself was a case where defamatory statements which were not complained of were held to share a common sting with others which were, so as to be available to the defendants in their plea of justification. So too was Khashoggi v IPC Magazines  1 WLR 1412 where the plaintiff was complaining only of that part of a publication which alleged that she had had an affair with the president of a friendly foreign state and made no complaint about a number of other similar allegations made in the same article. As Sir John Donaldson MR said at p.1417 e-f, having cited O'Connor LJ's second principle:
"What is said here is that that principle can be applied and the sting of the article is promiscuity generally. It is submitted that it would be very difficult for the plaintiff, when her statement of claim comes to be prepared, to make any complaint about this particular allegation which could not equally be made about the other allegations contained in the same article. In those circumstances the Polly Peck principle applies and, notwithstanding that the defendants may not be able to prove the particular affair complained of, they will be able to adduce evidence which will justify the sting of the article and the sting of that statement on the footing, I suppose, that it is not more defamatory to have an extra-marital affair with one person rather than with another in the circumstances of this case."
- Two cases where, on the other hand, the allegations of which no complaint was made were held not to share a common sting with the defamatory allegations sued upon were U.S. Tobacco International Inc v BBC  EMLR 816 and Cruise v Express Newspapers plc  QB 931, each already described by Latham LJ. Both, to my mind, involved simply an application of the second Polly Peck principle. In U.S. Tobacco , it is true, some link was recognised between the two allegations; as Nicholls LJ explained at p.827:
"The reason why I consider that charges (b) and (c) [the breach of agreement allegations] are not wholly independent of charge (a) [the allegation that oral snuff is carcinogenic] is that part of the sting of the libel in charges (b) and (c) lies in the nature of the product. Marketing a product in a manner likely to attract the attention of young people would, in itself, be an innocuous allegation. The sting lies in the allegation that this particular product, to the knowledge of the plaintiffs, is dangerous to health. The nature of the product is an integral part of the allegation."
- Nicholls LJ had earlier stated, however, that "in one sense" the health risk's statement "raises a distinct and separate defamatory allegation. … The main thrust of the two criticisms, the sting of the two libels, is different." Purchas LJ too recognised merely that there was some "connection between the two 'stings'" so that there was "no reason why the agreement sting could not safely be severed in [the jury's] considerations from the health risks sting". Brooke LJ's comment in Cruise at p.951h that "the majority of the court (Purchase and Nicholls LJJ) [in U.S. Tobacco] considered that [the] two charges could not properly be treated as separate and distinct from each other" must be so understood: within the Polly Peck classification, U.S. Tobacco is in my judgment certainly to be regarded as a case where the two allegations were adjudged not to have a common sting. That Cruise itself was such a case is not, of course, in doubt.
- How, then, does the second Polly Peck principle apply to our case? The answer to my mind is plain. The defamatory allegations concerning respectively the Cook programmes and The Connection manifestly have a common sting. They are accordingly not to be regarded as separate and distinct. Why, then, should the appellants not rely on either to justify that common sting?
- As I understand Mr Milmo's argument, it is that a second allegation cannot properly be introduced for the purposes of justification under the common sting principle unless, taken together, the allegations can be said to advance a wholly general charge – in Khashoggi of promiscuity, here of fakery. That argument, to my mind, unnecessarily glosses the authorities and would too narrowly circumscribe the scope of the substantive defence of justification. It would, for example, prevent a defendant who alleged of a claimant that he had committed three murders, in the event that the claimant chose to sue only in respect of one, relying by way of justification on the other two. Mr Milmo would, I think, submit that nothing short of an allegation that the claimant is a serial killer could found a defence on this basis. I would reject the argument.
- On the other limb of the appeal, the case management aspect, there is little I wish to add to what Latham LJ has said. It was at most a makeweight in the reasoning of the judge below. This case, where really no dispute arises as to the circumstances concerning the broadcast of The Connection, is at the very opposite end of the spectrum from U.S. Tobacco where everyone agreed that a trial of the health risk issue would have required "expert scientific evidence which is likely to be complex, technical and very lengthy" (per Nicholls LJ at 829), and thus turned "a trial that should be disposed of in days [into one which] could take weeks or months with a wide range of experts called on each side" (per Russell LJ at 831). Given that The Connection ought properly to be available to the appellants by way of defence, it would not be proportionate to deprive them of it on case management grounds.
- I too, therefore, would allow this appeal with the result proposed by Latham LJ.
Order: Appeal allowed with costs subject to detail assessment; original costs below referred to judge on basis of judgment; Application for LTA to the House of Lords refused.
(Order does not form part of the approved judgment)
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