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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> McManus & Ors v Beckham  EWCA Civ 939 (4 July 2002)
Cite as:  1 WLR 2982,  4 All ER 497,  WLR 2982,  EWCA Civ 939
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
His Honour Judge Previte QC
(sitting as a High Court judge)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE CLARKE
LORD JUSTICE LAWS
| McManus & ors||Appellants/Claimants|
|- and -|
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)
Desmond Browne QC; Mr Justin Rushbrooke (instructed by Messrs Lee & Thompson) for the Defendant/Respondent
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Justice Waller :
“4. On 26th March 2001, at the Shop, the Defendant spoke and published to the Third Claimant and Mr Gordon Philip Joseph Cook and Mrs Sandra Theresa Phelps and two unidentified female customers, all of whom were present in the Shop at the material time, of and concerning the Claimants and each of them and calculated to disparage them and/or to cause pecuniary damage to them in the way of their business words defamatory of them as attributed to her below:
Defendant (“VB”) “Excuse me but do not buy any autographs from this shop, they are all fakes. That is not my husband’s signature out there.”
. . . .
(It is unnecessary to set out the whole quotation but it ends)
. . . .
‘VB’ “I just don’t want to see you people being ripped off.”
5. The Defendant’s publication of the words complained of foreseeably led to extensive media coverage, repetition and republication of the words complained of and/or their sting, including articles published on page 19 of the “Daily Mirror” for 28th March 2001 and at www.mirror.co.uk entitled, “Posh goes stropping – BECK’S ‘FORGERY FURY’, at www.peoplenews.com for 29th March 2001 entitled, “Posh Spice in feud with shopkeeper – Owner fears her rant could ruin business”, on page 13 of the “News of the World” for 1st April 2001 entitled, “POSH HAS ANOTHER BOOB JOB”, on page 5 of the “News Shopper” for Kent for 4th April 2001 entitled, “BLUEWATER: Family business may take legal action – Posh rows over signed picture and on page 11 of the “Sunday Mirror” for 8th April 2001 entitled, ‘“Victoria Wreck ‘em’” and between dealers, collectors and other individuals in the specialist celebrity autograph memorabilia market.
6. In their natural and ordinary meaning the said words or some of them meant and were understood to mean that in the course of conducting their business the Claimants were and would continue to be in the habit of dishonestly and fraudulently ripping off their customers by knowingly selling fake autographs.
9. By reason of the publication of the words complained of the First, Second and Third Claimants have been seriously injured in their personal reputations and business reputations and goodwill and have suffered distress and embarrassment and the First and Third Claimants, who both suffer from stress related illnesses, have had their respective mental and physical symptoms aggravated. The Fourth Claimant has been seriously injured in its business reputation and goodwill. Accordingly, the Claimants and each of them have suffered loss and damage.
PARTICULARS OF SPECIAL DAMAGE
9.1. . .
9.2. . .
The Business has lost profits and gains that had it not been for the publication of the words complained of it would otherwise have acquired and has suffered a general loss of business. Based on a projected turnover on the basis of the Business’ experience to the end of March 2001 the Business’ effective lost turnover for the four months immediately following publication of the words complained of (April to July 2001 inclusive) amounted to £37,225. Losses have continued on a daily basis and the Claimants will provide full particulars of their claim under this head when the same become available.
11. Further or alternatively, in support of their claims for damages and/or in aggravation of damages the Claimants will rely on the following facts and matters:
Paragraphs 3 and 5 above are repeated. The Defendant routinely and assiduously courts publicity in all forms of media in relation to all aspects of her professional career and many aspects of her private life. As the Defendant well knew and could and did foresee her publication of the words complained of was likely to come to the attention of the national and local media, including in particular the tabloid press (in both its paper and Internet versions) and Internet bulletin boards, and was likely to be reported widely in such media in eye-catching and sensational terms and/or repeated in the specialist celebrity autograph market. Further or in the alternative it was the natural and probable consequence of the Defendant’s publication of the said words that reports of them would appear in the media and/or be repeated within the specialist celebrity autograph market.
. . . .
. . . .
. . . .
. . . .”
“Posh goes stropping
BECKS ‘FORGERY’ FURY
SHE’S turned shopping into an art form . . . so when you’re on the other side of the counter, Victoria Adams is one customer you don’t cross.
We hear Posh Spice launched a furious four-letter tirade against a hapless assistant after she discovered the shop was selling what she believed to be fake autographs of her husband David Beckham.
The superstar singer was out with her mum Jackie and baby son Brooklyn at the Bluewater Shopping Centre, in Kent, when she spotted the signed pictures of the Manchester United and England star in the autograph shop, GT Recollections. The multi-millionaire went in to have a peek, and after taking a closer look, launched into a blistering rant, claiming the signatures were nothing like wot ‘im indoors does.
The brave assistant said the £65 signed snaps were the real McCoy – which led to another volley of expletives.
Victoria, 26, remained unconvinced and started telling other customers not to buy any of the autographs because they were fakes.
She told bemused shoppers: It’s so unfair on parents who spend a lot of money buying these for their children, and they’re not the real thing.
“They shouldn’t be allowed to get away with this.” When we contacted the store they insisted they weren’t selling fakes.
Manager Tim McManus said: “I bought these off a chap who collects autographs. He is the most reputable collector I know of. She seemed very upset, claiming it wasn’t his signature and said some uncomplimentary things about us. We asked her to leave us a number so we could check it out, but she said she didn’t have time.
She said she knows what her husband’s signature like, but it was explained to me that what he does now is not a full signature, but just a squiggle. I don’t know if Victoria was aware of that or not.
I’ve removed the one she complained about and intend to contact David.
I want to apologise for upsetting her, but I also want to resolve this in a respectful and friendly atmosphere.
But she wasn’t very respectful in the shop, in all honesty. She was very aggressive . . . but this is a small family business and we like all our customers to be happy.”
“20. News Shopper
This article alleges that Victoria Beckham told shoppers at the claimants’ shop that a “signed photo of her husband David” and “other memorabilia” are “not the real thing”. The article quotes Mr Tim McManus as saying that “Victoria came into the shop and advised people not to buy anything, saying the picture of David was false, and all the other items in the shop were fake” and “Someone of her profile saying bad things about our company and all the merchandise in our shop, not just about David, could ruin us.” In my view a reasonable reader would understand these words to mean that the defendant had made general allegation of fraudulent trading about the claimants’ business and had said that a signed photograph of David Beckham was not genuine. In my view the words attributed to the defendant in this article, in the context of the words attributed to Mr McManus, are reasonably capable of being understood to bear the meaning complained of. That meaning derives partly from the words attributed to the defendant and partly from the words attributed to Mr McManus. The words attributed to Mr McManus obviously can not constitute a repetition of words spoken by the defendant. The words attributed to the defendant are not a repetition of the words complained of. The words attributed are different words bearing a similar meaning to the meaning complained of. In my view that does not constitute repetition.”
“Prima facie the court will treat the unauthorised repetition of a libel as a novus actus interveniens breaking the chain of causation between the original publication and the damage suffered by the injured party through repetition or republication”.
“to render the defendant liable for repetition and any subsequent financial or other loss it would, in my view, be necessary to allege and prove either that the defendant knew that representatives of the media were present when she spoke the words or knew that a particular publishee would repeat her words to the media. In this case there is no such evidence. Without evidence to establish causation on the part of the defendant I find it difficult to see how the claimants could possibly establish that repetition was the natural and probable consequence of speaking the words. On this ground, as well as on the grounds of no repetition and no evidence of causation, I accede to the defence’s application to strike out paragraphs 5, 9.3 and 11.1 ....”
“Where a defendant’s defamatory statement is voluntarily republished by the person to whom he published it or by some other person the question arises whether the defendant is liable for the damage caused by that further publication. In such a case the plaintiff may have a choice: he may (a) sue the defendant both for the original publication and for the republication as two separate causes of action, or (b) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote. The cases do not always distinguish clearly between the two situations and in many cases it will make no practical difference whether the defendant’s liability is based upon one rather than the other. However, it is clear that the second principle is wider than the first: where the defendant showed a television film defamatory of the plaintiff, the plaintiff was allowed to rely on the effect of newspaper reviews of the film as damage flowing from the broadcast of the film but the differences between the film and the reviews were such that he could not have relied on the reviews as amounting to a republication of the film. There may also be differences between the two courses of action for other purposes, for example release or limitation. It is clear that if the republication was by a person for whom the defendant is vicariously liable under the principles of master and servant or agency then the defendant is liable for that. Beyond this it may be that the original publisher should only be liable as a publisher of the republished statement where he authorised or intended it, but some of the cases speak in broader terms and assume that the same principles relating to the responsibility of the defendant apply to both situations. In any event, the starting point is that the defendant is prima facie not liable because the voluntary act of a third person breaks the chain of causation. However, the defendant is liable for the republication or for the damage caused by it:
(1) where he authorised or intended the republication;
(2) where the person to whom the original publication was made was under a duty to repeat the statement;
(3) where the republication was, in the circumstances of the case, the natural and probable result of the original publication.
Cases (1) and (2) are probably but examples of the broad principle in (3). “The law would part company with the realities of life if it held that the damage was 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”. (per Bingham LJ in Slipper v BBC).”
“Every man must be taken to be answerable for the necessary consequences of his own wrongful acts: but such a spontaneous and unauthorised communication cannot be considered as the necessary consequence of the original uttering of the words. For no effect whatever followed from the first speaking of the words to Bryce; if he had kept them to himself Bryer would still have trusted the plaintiff. It was the repetition of them by Bryce to Bryer, which was the voluntary act of a free agent, over whom the defendant had no control, and for whose acts he is not answerable, that was the immediate cause of the plaintiff’s damage.”
The plaintiff thus was non-suited.
On this side of the fence was also Dixon v Smith (1860) 5 H. & N. 450.
“Here the statement was that the wife of the plaintiff was guilty of adultery, and it is the natural consequence of such a statement that persons should cease to resort to the shop. Supposing the statement made not to be slander, but something else calculated to injure the shopkeeper in the way of his trade, as for instance a statement that one of his shopmen was suffering from an infectious disease, such as scarlet fever, this would operate to prevent people coming to the shop; and whether it be slander or some other statement which has the effect I have mentioned, an action can, in my opinion, be maintained on the ground that it is a statement made to the public which would have the effect of preventing their resorting to the shop and buying goods of the owner. . . . . I hope the day will come when the principle of Ward v Weeks and that class of cases shall be brought under the consideration of the Court of last resort, for the purpose of determining whether a man who utters a slander in the presence of others is not responsible for all the natural effects which will arise from those persons going about and repeating the slander, though without any express authority on his part.”
He in any event, as did Pollock and Huddleston BB, distinguished Ward v Weeks and followed Evans v Harries.
“But there are certain cases where an action against the slanderer may be maintained for the repetition of the slander. These cases may be divided into four classes. If the defendant had authorised the mother to repeat the slanderous words to Galloway, the action could have been sustained. But there is no evidence of any such authority. Then again, if the defendant had intended that the words should be communicated to Galloway, that would have done. But there is no evidence of any sort or kind to warrant that suggestion. Again, if the repetition of these words had been the natural consequence of the defendant’s uttering them, that would have been sufficient; but that cannot be established here. Lastly, there is authority for this proposition, that if it could have been made out that there was a moral obligation on the mother to communicate the slander to her daughter, and on the daughter to communicate it to Galloway, the action would have been maintainable. But here the words were untrue, . . . . there could not be any obligation either on the mother or the daughter to repeat them to Galloway.”
One notes there the exception of “the repetition being the natural consequence”.
“Verbal defamatory statements may, indeed, be intended to be repeated, or may be uttered under such circumstances that their repetition follows in the ordinary course of things from their original utterance. Except in such cases, the law does not allow the plaintiff to recover damages which flow, not from the original slander, but from its unauthorized repetition: Ward v Weeks, Holwood v Hopkins; Dixon v Smith. . . . . .”
“Mr Browne, therefore, submits that the issue before the judge and before this court is one of remoteness of damage since he was not contending that there was liability upon the defendants for the repetition (if in fact there were such repetition) but the matters pleaded in paragraph 7 go to assist the jury in defining the ambit of the matters which are proper to be taken into account in assessing the appropriate general damages. He contends that the earlier cases support the proposition that the reviews are “the natural and probable consequence” of the original publication of the libel and were intended by the defendants to be such a consequence and that although the words used are necessarily those of the reviewer, it was a natural and probable consequence of any review that the “sting” of the libel would be repeated. He contends that the phrase “natural and probable consequence” means “reasonably foreseeable” and that even if it bore a slightly different meaning, or was used in a different context in the earlier cases, the law, as it has developed, indicates that the true test whether damages are recoverable is whether such damages are “foreseeable” and that the present law is that stated in the advice of their Lordships in The Wagon Mound  AC 388, which expressly disapproved the proposition that foreseeability was relevant to liability and not to damage: per Lord Sumner in Weld-Blundell v Stephens . . . . ”
“All the cases cited, including Ward v Weeks, are examples, on their own facts, of cases concerned with novus actus - breaches of the chain of causation. In this case, therefore, the questions raised on this appeal are, in my opinion: (i) Did the reviews reproduce the sting of the libel? This is a question of fact for the jury. (ii) Did the defendants invite such reviews? The answer to this question depends upon the facts concerning all the circumstances in which the preview was given to the press and, again, is a matter of fact for the jury. (iii) Did the defendants anticipate that such reviews would repeat the sting of the libel? It is at this point that the issue of natural and probable consequence or foreseeability arises.
In my opinion this is a question of remoteness of damage and not liability and raises an issue of fact for the jury. I have no doubt at all that, to put it no higher, it could not be said that this was a “plain and obvious case” so as to justify striking out. I would go further and say that the matter cannot be resolved without the findings of fact by the jury, to which I have referred. This includes the question of whether or not it was foreseeable or a natural and probable consequence of the invitation to review that such reviews would include the sting of libel.”
“Mr Gray urged that to admit the possibility of such a claim would be contrary to public policy and threaten freedom of expression. But 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.
Usually, in fairness to a defendant, such effects must be discounted or ignored for lack of proof. But here, where the further publications (although not republications) are provable and are said to have been foreseeable, natural, provable and perhaps even intentional results of the publications sued upon, I see no reason in logic or policy why those effects need be ignored if the factual premises can be established. Nor do I see any threat whatever to freedom of expression, which (I accept) the courts must be vigilant to protect”.
“For the purpose of considering this striking out application, I think we have to assume that the plaintiff, if permitted to do so, will or may be in a position to prove at the trial the following facts, namely that (1) the portrayal of the plaintiff in the film “The Great Paper Chase” was defamatory; (2) the defendants well knew and could and did foresee that the film was likely to be reviewed in the national press and the contents thereof rehearsed in such reviews; (3) the passages from the reviews quoted in the statement of claim repeated the defamatory sting of the libel; (4) the defendants could have reasonably foreseeen that newspaper reviews would repeat the defamatory sting.”
At 301c he said:
“At least in cases where the damage following the commission of a tort is not of a physical nature, I for my part find it difficult to draw any distinction between damage which is the natural and probable consequence of the tort and damage which is a reasonably foreseeable consequence: compare The Wagon Mound  AC 388, 423, per Viscount Simonds. For the purposes of this judgment, I treat these two differently expressed categories of consequence as coterminous.”
“Prima facie, the court will treat the unauthorised repetition of a libel as a novus actus interveniens breaking the chain of causation between the original publication and the damage suffered by the injured party through the repetition or republication. Nevertheless, Tindal C.J., in saying in Ward v Weeks . . . . that “such spontaneous and unauthorised communication cannot be considered as the necessary consequence of the original uttering of the words” was not, in my judgment, purporting to lay down a universal rule applicable to all cases of unauthorised repetition or republication. He was referring to “such spontaneous and unauthorised communication” as had occurred on the facts of that case.”
“There have been cited to us a number of decisions, which seem to show that on particular appropriate facts the repetition of the sting of a libel by an unauthorised third party may be treated as the “natural” or the “natural and probable” consequence of the original publication, so as to expose the original publisher to a claim for damage in respect of the repetition: see for example Speight v Gosnay, 60 L.J.Q.B. 231, 232, per Lopes L.J. and at p. 233, per Kay L.J.; Ecklin v Little, 6 T.L.R. 366, 367 per Charles J. (distinguishing Ward v Weeks) and Cellactite and British Uralite Ltd v H. H.Robertson Co Inc., The Times, 23 July 1957, per Hodson L.J.”
“As I have already indicated, at least for present purposes I am prepared to accept that prima facie the unauthorised repetition of a libel will be treated as a novus actus interveniens (as it was in Ward v Weeks and Weld-Blundell v Stephens); prima facie repetition will not be treated as the natural and probable consequence of the original publication. Nevertheless, every case must depend on its own facts. Subject as stated above, I am not persuaded that the “natural and probable” test is the wrong one to be applied in considering questions of remoteness of damage in cases of defamation or that the circumstances in which repetition can properly be treated as the natural and probable consequence can or should be restricted to stated, rigidly defined categories.”
“Could the defendants have reasonably foreseen that the newspaper reviews would repeat that defamatory sting.”
“But here the findings show that some risk of fire would have been present to the mind of a reasonable man in the shoes of the ship’s chief engineer. So the first question must be what is the precise meaning to be attached in this context to the words “foreseeable” and “reasonably foreseeable.”
Before Bolton v Stone the cases had fallen into two classes: (1) those where, before the event, the risk of its happening would have been regarded as unreal either because the event would have been thought to be physically impossible or because the possibility of its happening would have been regarded as so fantastic or farfetched that no reasonable man would have paid any attention to it – “ a mere possibility which would never occur to the mind of a reasonable man” (per Lord Dunedin in Fardon v Harcourt-Rivington) – or (2) those where there was a real and substantial risk or chance that something like the event which happens might occur, and then the reasonable man would have taken the steps necessary to eliminate the risk.
Bolton v Stone posed a new problem. There a member of a visiting team drove a cricket ball out of the ground onto unfrequented adjacent public road and it struck and severely injured a lady who happened to be standing in the road. That it might happen that a ball would be driven onto this road could not have been said to be a fantastic or far-fetched possibility: according to the evidence it had happened about six times in 28 years. And it could not have been said to be a far-fetched or fantastic possibility that such a ball would strike someone in the road: people did pass along the road from time to time. So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeable – it was plainly foreseeable. But the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the date could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.
But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so, e.g. that it would involve considerable expense to eliminate the risk. He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity, there can be little doubt but that Bolton v Stone would have been decided differently. In their Lordships’ judgment Bolton v Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”
Lord Justice Clarke:
Lord Justice Laws:
“29… The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible. To make that principle good, it is important that the elusive conception of causation should not be frozen into constricting rules.
33... So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible.. Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered.”