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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 [2002] EWCA Civ 939 (4 July 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/939.html Cite as: [2002] EWCA Civ 939, [2002] WLR 2982, [2002] 1 WLR 2982, [2002] 4 All ER 497

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		Neutral Citation Number: [2002] EWCA Civ 939
		Case No: A2/2002/0003

IN THE SUPREME COURT OF JUDICATURE
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)

		Royal Courts of Justice Strand, London, WC2A 2LL
		4 July 2002

B e f o r e :

LORD JUSTICE WALLER
LORD JUSTICE CLARKE
and
LORD JUSTICE LAWS
____________________

Between:


	McManus & ors	Appellants/Claimants
	- and -
	Beckham	RespondentDefendant

____________________

(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)

____________________

James Price QC; Mr Jonathan Barnes (instructed by Messrs Richards Butler) for the Claimants/Appellants
Desmond Browne QC; Mr Justin Rushbrooke (instructed by Messrs Lee & Thompson) for the Defendant/Respondent
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Crown Copyright ©

Lord Justice Waller :

1. The claimants allege that on 26^th March 2001 the defendant came into their shop and in a rude, loud and unreasonable way advised the three customers present that the autograph on a photograph of her husband, David Beckham, was a fake. They allege that the effect of what she also said was that the claimants habitually sold memorabilia with fake autographs, and that she was advising customers not to buy the same. They further allege that the incident got considerable press coverage, and that as a result of that coverage their business has suffered a dramatic down turn.
2. The question raised by this appeal is whether the claimants are entitled to rely on the press coverage in establishing the loss they say they suffered. The defendant suggests not and she applied to strike out those paragraphs of the particulars of claim in which the press publication and the losses said to be flowing therefrom are pleaded. His Honour Judge Previte QC, sitting as a High Court judge, by judgment dated 28^th November 2001 held that the paragraphs should be struck out, and this is an appeal from that decision.
3. The judge relied on various grounds. First he ruled that the newspaper articles relied on did not “repeat the slander” and on that ground alone would have struck out the paragraphs. Second he held that in any event the publications must have resulted from the independent act of a third party for whose acts the defendant was not in law responsible. Third he held that, since the claimants could not establish either that representatives of the press were present when she spoke the words or that she knew a particular publisher would repeat her words to the media, the paragraphs should be struck out.
4. The Particulars of Claim made the following allegations :-

“4. On 26^th 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 28^th March 2001 and at www.mirror.co.uk entitled, “Posh goes stropping – BECK’S ‘FORGERY FURY’, at www.peoplenews.com for 29^th 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 1^st April 2001 entitled, “POSH HAS ANOTHER BOOB JOB”, on page 5 of the “News Shopper” for Kent for 4^th April 2001 entitled, “BLUEWATER: Family business may take legal action – Posh rows over signed picture and on page 11 of the “Sunday Mirror” for 8^th 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.

. . . .

. . . .

. . . .

. . . .”

5. Paragraphs 5, 9.3 and 11.1 are the paragraphs struck out by the learned judge.
6. The judge’s approach was to start by considering whether the articles relied on “repeated the slander”. He quoted in full the various articles. The first article in point of time was in the Daily Mirror of 28^th March 2001, and was in the following terms:-

“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.

Chap

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.”

7. The judge held that that article did not repeat the slander because the words were not a general allegation of fraudulent selling, because a reasonable reader would understand simply that Mrs Beckham had detected what she believed to be a fake signature on a photograph of her husband and warned customers against buying photographs of her husband which bore fake signatures. He formed similar conclusions in relation to all the other articles save the News Shopper. In relation to the article in the News Shopper the judge said this:

“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.”

8. Mr Price QC, representing the claimants, suggested to the judge that this first ruling might be cured by the claimants making an amendment to the pleading as to the sting of the original slander, including at least an imputation that the claimants were habitually selling memorabilia with fake David Beckham autographs. The judge ruled that that should be considered if a properly drafted amendment was forthcoming. An amendment has been put before us.
9. The judge then went on to consider separately the question of causation and natural and probable or foreseeable consequence. In relation to causation he ruled that the absence of any averment as to causation was fatal to the claimants’ case. He ruled that the claimants do not and could not on the facts of the case aver that the publication of the articles or the repetition in the trade was caused by the defendant. Those publications must have resulted from the independent act of some third party for whose act the defendant is not in law answerable. He then quoted the following from Slade LJ in Slipper v BBC [1991] 1 QB 283 at page 301:

“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”.

10. In relation to natural and probable and foreseeable consequence the essential finding of the judge was:

“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 ....”

11. It is useful to start with a statement of general principle. Gatley on Libel and Slander 9^th edition paragraph 6.30 puts the general principle in this way:

“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).”

12. The first point to stress is that the claimant in this case sues the defendant in respect of the original publication only, but is seeking to recover damages caused by that original publication. What the claimant wishes to allege is that the slander took place on 26^th March 2001, there was a loss of business thereafter, and the size of the loss can be explained by the fact that the slander was not only published to those three customers in the shop, but was published outside the shop including receiving wide publicity in the National press. In my view in relation to the first basis on which the judge struck out the relevant paragraphs i.e. that there was no repetition in the articles in the newspapers, the approach of the judge was simply wrong.
13. Only if the claimants were seeking to sue on a separate cause of action in respect of the republication would the approach of the judge be a proper one. I accept that if the press articles were not publishing any part of the sting of the alleged slander and/or had no causative link with the alleged slander, it would be wrong to allow the paragraphs to be pleaded. But, the argument, so far as the articles are concerned, was that they should be struck out because the articles were not repeating the full sting of the alleged slander. The distinction being drawn was between an allegation that the claimants sold fakes generally on an habitual basis, and an allegation asserting only a part of that whole sting i.e. that the claimants habitually sold fake David Beckham autographed memorabilia. It seems to me that when one is not concerned with separate causes of action but is concerned with whether damages flowed from the original publication, even a partial publication of the original sting can be causative of damage. Furthermore, damage could flow from a report such as that which appeared in the News Shopper following the claimant being asked about what happened. Thus it seems to me that on the first aspect the approach of the judge was over analytical and he was wrong to strike out the paragraphs simply on the basis that they did not “repeat” the slander. On that basis no question of amendment would seem to arise.
14. The real point in the case can be expressed in two ways depending from whose angle one approaches the matter. Are the claimants entitled to rely on the publication in the press in order to establish the causative link with the damage they say they have suffered? Is the defendant entitled to say that the damage alleged by the claimant was caused by publication in the press and that that publication was a novus actus interveniens?
15. We were taken through a number of authorities some of which were examples of the court ruling that the intervention of a third party was a novus actus interveniens, others apparently deciding that it was not. Thus Ward v Weeks (1830) 7 Bingh. 211 was a case in which the words alleged to be defamatory were addressed to one Bryce who “without any authority from the defendant” repeated the same to Bryer. It was the repetition and not the original statement which “occasioned the Plaintiffs damage”. Tindal C.J. said:

“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.

16. Evans v Harries (1856) 1 H. & N. 251 and Riding v Smith (1876) 1 Ex. D 91 are cases on the other side of the line. In Evans v Harries the plaintiff was an innkeeper and was entitled to prove a general loss of custom without stating the names of the customers who ceased to frequent the inn. That must have been a case where the slander had been repeated although no point appears to have been taken on that basis. In Riding v Smith, Ward v Weeks and Dixon v Smith were cited as also was Evans v Harries. Riding v Smith was a case where a trader alleged that the defendant falsely and maliciously spoke and published of the wife of the plaintiff that she was guilty of adultery. Kelly C.B. said:

“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.

17. Speight v Gosnay (1891) 60 LJQB 231 was a Court of Appeal decision also concerned with the repetition of a slander. It is in that case that Lopes LJ defined various exceptions to Ward v Weeks when he said:

“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”.

18. Although so far as I can see Speight v Gosnay was not cited, one sees the “natural consequence” exception being suggested again in the judgment of Bowen LJ, with which other members of the court agreed, in Ratcliffe v Evans [1892] 2 QB 524. At 530 he said:

“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. . . . . .”

19. In Weld-Blundell v Stephens [1920] AC 956 the House of Lords were concerned with the question whether there had been a breach of duty in the passing on of a letter containing a libel. In the course of the speeches in that case Ward v Weeks was approved as good law. This laid the foundation for an argument that by so approving Ward v Weeks even the exceptions adumbrated in Speight v Gosnay and in particular the “natural consequence” exception was no longer appropriate. This was the argument put forward by the BBC in the Court of Appeal in Slipper v BBC [1991] 1 QB 283. That case was concerned with a film suggested to be defamatory of a former Detective Chief Superintendent. The film had been reviewed in the national press and it was suggested that those reviews had repeated the defamatory sting of the film and that those publications should be taken into account in assessing the general damages. The paragraph relying on the reviews was sought to be struck out on the basis of Ward v Weeks. The Master and the judge refused to strike the paragraph out and the Court of Appeal upheld that decision. In the course of so ruling the Court of Appeal reviewed all the authorities to which I have referred, and others. The first thing which is clear from each judgment is that they did not uphold the submission that Ward v Weeks in effect imposed a rule of law to which there were no exceptions. Indeed it is clear that they were of the view that the “natural consequence” exception had not been affected by Weld-Blundell v Stephens. What is a little more difficult is to be absolutely clear as to the ambit of the “natural and probable consequence” exception.
20. Mr Browne, who was for the plaintiff in Slipper, is recorded as having submitted in that case as follows:

“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 [1961] 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 . . . . ”

21. Stocker LJ seems to me to accept that submission saying at 296 at c:

“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.”

22. Bingham LJ, having reviewed the authorities, concluded first that Ward v Weeks cannot have been intending to lay down a legal rule to govern issues of causation in cases where the facts were quite different. Second he analyzed the speeches in the House of Lords in Weld-Blundell v Stephens and demonstrated that even the majority who were approving Ward v Weeks as good law were not saying that a defendant could never be liable where a slander had been repeated by a third party unauthorised to do so. The majority were accepting “that the unauthorised act of an independent third party might be the natural and probable result of a defendant’s conduct”. He then referred to two authorities cited by the plaintiffs in that case including Speight v Gosnay and concluded that they were authorities for the proposition “that the intervention of an independent third party does not, irrespective of the facts, break the chain of causation or render damages too remote”. His conclusion at 300 c-e was then in the following terms:

“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”.

23. Slade LJ started by analyzing what had to be assumed for the purpose of considering a strike out, and he did so at 300f in the following terms:

“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 [1961] AC 388, 423, per Viscount Simonds. For the purposes of this judgment, I treat these two differently expressed categories of consequence as coterminous.”

24. He then went on to consider the decision in Ward v Weeks and concluded:

“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.”

25. He then said at 302d:

“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.”

26. At 302g Slade LJ said:

“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.”

27. One notes from the way in which Stocker LJ framed the questions that he posed, and the way Slade LJ posed the issues which he suggested the plaintiff was seeking to have established before the jury, that they put the issues in slightly different terms. They were at one in suggesting that the jury should have to decide whether the reviews “repeated the defamatory sting of the libel”. Stocker LJ suggested that the next issue would be whether the defendants “invited” such reviews whereas Slade LJ suggested that that issue should be framed as whether the defendants “well knew and could and did foresee that the film was likely to be reviewed”. Stocker LJ put the final issue as to whether the defendants “anticipated that such reviews would repeat the sting of the libel” whereas Slade LJ put the matter in this way:

“Could the defendants have reasonably foreseen that the newspaper reviews would repeat that defamatory sting.”

28. What the claimants allege in their particulars of claim in this action as issues that they would seek to place before the jury are (1) that there was a slander published to certain customers in their shop on 26^th March 2001, that all the autographs including that of David Beckham were fakes habitually sold by them; (2) that the defendant routinely and assiduously courts publicity and “well knew and could and did foresee” that what she said was likely to come to the attention of the national and local media 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” (see paragraph 11.1 of the particulars of claim); (3) that the media did quote her words and that in so doing they repeated the defamatory sting of the libel either in whole or in part; and (4) that she thus knew and/or could foresee that the newspapers and the celebrity market would repeat the defamatory sting in whole or in part.
29. Mr Browne was inclined to accept that if the claimants could prove that the defendant courted publicity, that she knew or should have appreciated that the press would be likely to report what she said, and that she actually foresaw or reasonably should have foreseen that the sting of the slander would be repeated by the press, then the claimants would be entitled to rely on the further publication to establish their damages. In other words, he was inclined to accept that his application to strike out was not simply that on the pleaded case the claimants could not succeed. His argument ultimately thus came down to submitting that with the prima facie presumption suggested by Slade LJ as flowing from Ward v Weeks, the claimants would simply be unable to prove that the defendant “knew or reasonably should have appreciated that the press were likely to repeat what she said”. Thus he submitted the case, in so far as it relied on the press coverage, was doomed to failure. This, as it seems to me, was a rather different way of putting the case than the way it had been argued before the judge. It involved an acceptance that Ward v Weeks did not necessarily provide a complete answer, and an acceptance that it was not fatal to the claimants’ case not to plead and be able to prove actual authorisation of publication in the press or actual knowledge that the press were present and ready to publish.
30. The burden on Mr Browne, once he is suggesting that his real case is that the claimants will simply be unable to prove what they plead, is a high one. The power to strike out both under the former rules and under the CPR has always been considered a draconian remedy which is to be employed only in clear and obvious cases. Most recently the House of Lords in Three Rivers DC v Bank of England [2001] 2 All ER 513 approved amongst other authorities McDonald’s Corp v Steel [1995] 3 All ER 615 where Neill LJ emphasised the above point in the context of a libel case where the judge had struck out paragraphs pleading justification, and the Court of Appeal reinstated the same.
31. It seems to me that the case which the claimants wish to put before the jury contains a number of factual elements. They wish to establish the kind of person they allege the defendant was i.e. someone they say who courted the media; the way in which she spoke the words complained of i.e. in a loud voice to all customers in the shop, and ostensibly for the protection of customers generally; that she knew that it was likely that reports of what she said would spread well beyond the confines of the shop itself; that she knew that the press would report the type of incident which they say she brought about; and that she knew it was likely that the press would repeat the sting in whole or in part. I cannot see how it can be said at the interlocutory stage that it is impossible for the claimants to establish those facts. As a starting point, if what the claimants allege happened did happen, it is plain that the aim of the remark was at customers generally, and not just confined to the three in the shop. It may be difficult to establish actual knowledge or awareness, but difficulty is not the same as impossibility.
32. The much more difficult question is whether the courting of publicity and actual awareness are necessary facts to prove for the claimants to succeed. Both sides appreciated that it was possible that some facts and not others might be capable of proof, and in particular appreciated that the defendant’s actual state of mind might be difficult to establish. In Slipper as the last passage in the judgment of Slade LJ demonstrates, that court felt it appropriate, having reinstated the paragraphs, to recognise that some unsolved problems remained e.g. precisely how the jury was to be directed. They simply left the matter to the trial judge. We, as I understood counsel, were not being asked to do the same, and in the interests of trying to assist those that have to deal with the case hereafter would go a little further.
33. I am conscious that Ward v Weeks and the prima facie rule which Slade LJ suggests that case establishes is intended to act as a control mechanism in respect of liability for slander. There is thus, as it seems to me, a danger in expressing the circumstances in which damages for the original slander can be established by a further publication, partial or otherwise, simply in terms of foreseeability. There is a temptation to say that it is sufficient in relation to any defendant charged with having slandered somebody, that if it is “reasonably foreseeable” that the slander will be repeated, damage flowing from the repetition will automatically be recoverable. There is however, in my view, a danger in the use of that language alone. It is instructive to remember what Lord Reid said in The Wagon Mound (No.2) [1967] 1 AC 617 at 641:

“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.”

34. What the law is striving to achieve in this area is a just and reasonable result by reference to the position of a reasonable person in the position of the defendant. If a defendant is actually aware (1) that what she says or does is likely to be reported, and (2) that if she slanders someone that slander is likely to be repeated in whole or in part, there is no injustice in her being held responsible for the damage that the slander causes via that publication. I would suggest further that if a jury were to conclude that a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage caused by the slander, it is not unjust that the defendant should be liable for it. Thus I would suggest a direction along the above lines rather than by reference to “foreseeability”.
35. I would thus allow the appeal and reinstate the paragraphs which the judge struck out.

Lord Justice Clarke:

36. I have read in draft the judgments of both Waller and Laws LJJ. I agree with both their reasoning and conclusions. I detect no disagreement between them, and, being wholly unable to add to Laws LJ’s classical allusions, am content simply to say that I agree that this appeal should be allowed for the reasons given by them. I also agree that the jury should be directed along the lines which they propose.

Lord Justice Laws:

37. I agree that this appeal should be allowed, and I agree also with Waller LJ’s reasoning in arriving at that result. I add some observations of my own because of what I regard as the unrespectable complexity into which this branch of the law has wound itself. The case on the claimants’ pleadings, reduced to its essentials, involves these propositions. (1) The defendant utters, to a very limited audience, words which slander the claimants in the way of their business. (2) Shortly thereafter the gist or sting (but not the exact words) of the slander is repeated in the national and local press (I will call their reports the “second publications”); alternatively part only of the sting is so repeated. (3) After the second publications, the claimants suffer a grave downturn in the turnover of their business. (4) The claimants sue the defendant in slander and claim the whole of their business loss as damages. They accept that but for the second publications they cannot establish that the slander uttered by the defendant has caused the loss, or by far the greater part of the loss, which they seek to recover.
38. The case thus presents a particular feature which is by no means confined to the law of defamation. It is that the claimant C seeks to hold the defendant D responsible for damage occasioned (or at least, directly occasioned) by the agency of a third party X. The law of negligence is replete with instances of this feature. The law’s stock response has been to consider whether it can truly be said that D’s act or omission is a substantial or effective cause of the damage, or whether rather the chain of causation is broken by the act or omission of X; if it has been, then X’s act or omission is called a novus actus interveniens, and C cannot claim against D the loss occasioned by it. However, reasoning of that kind raised the false hope of a decisive objective test of causation. It was as if the court was saying, if only we look hard enough and long enough, we shall be able to discern from the evidence whether this really is a case where D’s wrongdoing caused the damage, or it is one of novus actus interveniens. But that was always a search for a pot of gold at the end of the rainbow. The courts have never articulated such a decisive test; for the good reason that there is none to articulate.
39. It might be thought that the ascertainment of a causal relation between an act and a result is always a question of fact; and a decision on pure fact is, so to speak, always value-free. In very many ordinary cases, that will be quite right. But where the court has to decide whether D should be responsible to C for the effects of what was done or omitted by a third agency X, the court’s task is not purely one of ascertaining fact, and is certainly not value-free. In every such case D’s act may credibly be called a cause of the damage which flows after X has done whatever he has done. If it were otherwise, if the consequences of X’s part in the story simply had no perceptible connection with D or with the consequences of what D had done, the case would admit of a very short answer indeed: D would not be liable upon any rational approach to causation and legal responsibility. The issue for the court is not, therefore, purely one of factual causation. The true nature of the exercise does not consist in an ever closer examination of the facts to find some feature which one might at first have missed. The reality is that the court has to decide whether, on the facts before it, it is just to hold D responsible for the loss in question. Perhaps I might repeat a few words from the judgment I gave in Rahman v Arearose Ltd [2001] QB 351 (a personal injury case involving successive torts), with which Henry and Schiemann LJJ agreed (paragraphs 29,33):

“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.”

40. The problem of a second cause or novus actus interveniens should have no more absolutist or metaphysical overtones for the law of defamation than it does for the law of negligence. Of course the conception of a duty of care has no analogue in defamation. But that, if anything, serves to simplify the approach to be taken in defamation cases to the task of ascertaining in any given case the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered where a potential novus actus is involved.
41. The defamation cases have over time been girt about with unhelpful complexities. Thus (1) Ward v Weeks (1830) 7 Bingh. 211 gave rise to the suggestion that there was a rule of law to the effect that a defendant could in no circumstances be held responsible to the claimant for the consequences of an effective repetition of a slander perpetrated by him. I think that was plainly wrong. (2) A distinction was drawn, having no readily perceptible basis in principle, between the effects of a repeat publication in the case where a slander was actionable per se (the repeat publication might in some circumstances be relied on) and the case where it was not so actionable (the repeat publication might never be relied on): see Parkins v Scott (1862) 1 H & C 153. (3) The circumstances in which repeat publication might be relied on became ossified into categories: see Speight v Gosnay (1891) 60 LJQB 231. (4) The courts’ perception of causation was not advanced by an uncomfortable oscillation between the old language of “natural and probable cause” and the later formulation “reasonable foreseeability”: this can be seen, with great respect, as late as this court’s judgment in Slipper v BBC [1991] 1 QB 283, to which my Lord Waller LJ has referred.
42. The law needs to be simplified. The root question is whether D, who has slandered C, should justly be held responsible for damage which has been occasioned, or directly occasioned, by a further publication by X. I think it plain that there will be cases where that will be entirely just. The observation of Bingham LJ as he then was in Slipper at 300 that “[d]efamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs” states an ancient and persistent truth, long ago vividly described in Vergil’s account of Aeneas and Dido Queen of Carthage (Aeneid IV, 173-188).
43. It will not however in my judgment be enough to show that D’s slander is a cause of X’s further publication: for such a cause might exist although D could have no reason to know of it; and then to hold D responsible would not be just. This is why the old formula, “natural and probable cause”, is inapt even as a figurative description of the relationship that needs to be shown between D’s slander and the further publication if D is to be held liable for the latter. It must rather be demonstrated that D foresaw that the further publication would probably take place, or that D (or a reasonable person in D’s position) should have so foreseen and that in consequence increased damage to C would ensue.
44. Such an approach, I hope, may go some modest distance to demythologise the law of defamation. I make it clear that I intend what I have said to be in conformity with Waller LJ’s suggestion at the end of his judgment as to how a jury might be directed, though with deference to him I think that any avoidance of the term “foreseeability” is commended by the need for clarity rather than adherence to principle, for in principle the approach he proposes, and for what it is worth my own reasoning, require that the damage in question flowing from X’s act be foreseen or foreseeable by D, or the reasonable person in D’s position.

Order:

45. Appeal allowed
46. Appellants to pay respondents (within 14 days) £35,000 on account of costs here and below the remainder to be subject to detailed assessment.
(Order does not form part of the approved judgment)