AJINOMOTO SWEETENERS EUROPE SAS v. ASDA STORES LTD [2010] EWCA CIV 609

In Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] EWCA Civ 609, the Court of Appeal, comprised of Lord Justices Sedley and Rimer and Sir Scott Baker, held that the single meaning rule was confined solely to an action in defamation. Making no attempt to disguise his distaste for the long-standing ‘rule’, Lord Justice Sedley described it as “anomalous, frequently otiose and, where not otiose, unjust” (at [31]). Signalling his agreement, Lord Justice Rimer stated at [40], “The single meaning rule in defamation is the product of an accident of history resulting in a fiction that assumes that the reasonable man will understand a particular statement in only one way – its supposed single natural and ordinary meaning. Like most legal fictions, it is artificial and has something of the absurd about it.” There was, he said, no sound basis for importing it into the tort of malicious falsehood.

At issue in Ajinomoto Sweeteners was a phrase contained on a brand of health foods, which stated “No hidden nasties” together with the comment “No artificial colours or flavours and no aspartame”. The European makers of aspartame took issue with the claim, alleging that it constituted a malicious falsehood. The High Court judge who heard the matter at first instance, Justice Tugendhat, had found that there were four possible meanings that could be ascribed to the comments. Having rejected two, the Judge was left with one that conveyed a meaning that was damaging to the plaintiff, and one which did not. After applying the ‘single meaning rule’, his Honour opted for the innocuous meaning, on the basis that the Court should not select one bad meaning where there were non-defamatory meanings also available.

While the Court of Appeal accepted there was little they could do to remove the single meaning rule from its now firmly entrenched position in defamation law, it was not prepared to extend that position into the separate – although seemingly related – tort, malicious falsehood. “[T]he two are not so close as to be variants of a single tort, as libel and slander might be said to be,” said Lord Justice Sedley at [30]. “For historical reasons they have developed with different characteristics; they make different demands on the parties; and they offer redress for different things.”

Lord Justice Sedley found that to apply the single meaning rule to the tort of malicious falsehood would lead to injustice. “On the judge’s unchallenged findings, the meanings which reasonable consumers might put on Asda’s health-food packaging include both the damaging and the innocuous,” he said at [33]. “Why should the law not move on to proof of malice in relation to the damaging meaning and (if malice is proved) the consequential damage without artificially pruning the facts so as to presume the very thing – a single meaning – that the judge has found not to be the case?”

The suggestion that it would be more practical to have the single meaning rule apply to both defamation and malicious falsehood claims failed to persuade the Court, with Lord Justice Rimer pointing out that while such an application would keep the common law “tidy”, the common law had never worried itself with tidiness. “It has always been more concerned with meeting the justice of the particular case and developing itself accordingly.” The Judge observed at [43] that if the single meaning rule did not exist, a modern court would be unlikely to invent it – for defamation or any other tort.

Two weeks after Justice Tugendhat’s decision in Ajinomoto Sweeteners was overturned, his Honour was introducing another threshold into defamation claims. In Thornton v Telegraph Media Group Limited[2010] EWHC 1414 (QB), a case dealing with a less than favourable book review, Justice Tugendhat, granting summary judgment to the defendant, read the element of “seriousness” into Lord Atkin’s classic statement as to what constitutes defamation.

CREDITS:

YUSTACE MHINA MAHITA v. R (1967) HCD 248

. Crim. App. 380-D-67; 20/6/67; Hamlyn, J.

Accused was convicted of publishing defamatory matter, contrary to P.C. s. 187. The defamatory matter was contained in a letter to Mr.Mkusa, and concerned that gentleman’s competence as a District Executive Officer.

            Held: One element of the offence of defamation is that the defamatory material be communicated to someone other than the person about whom the statements are made. Since the requisite publication was absent here, the conviction and fine of Shs. 200/- were set aside.

THORNTON V TELEGRAPH MEDIA GROUP LIMITED [2010] EWHC 1414 (QB)

In Thornton v Telegraph Media Group Limited [2010] EWHC 1414 (QB), a case dealing with a less than favourable book review, Justice Tugendhat, granting summary judgment to the defendant, read the element of “seriousness” into Lord Atkin’s classic statement as to what constitutes defamation.

CREDITS: NZLawyer magazine, issue 139, 25 June 2010

RASHIDI M. OMARI v. R (1968) HCD 296

RASHIDI M. OMARI v. R. (1968) HCD 296

SIM v. STRETCH (1936) 52 T.L.R 669

In Sim v Stretch (1936) 52 TLR 669 at 671, when deciding whether a telegram bore a defamatory meaning, Lord Atkin observed, “Judges and text book writers alike have found difficulty in defining with precision the word ‘defamatory’. The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person or class of persons, whose reaction to the publication is the test of the wrongful character of the words used.” Despite stating that he did not intend to ask their Lordships to lay down a formal definition, Lord Atkin’s proposed test – “Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?” – did just that.

Later in his judgment, Lord Atkin said, “That juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character and are treated as actionable wrongs” (at 672). Justice Tugendhat found that this statement introduced into the tort of defamation an element of seriousness, which would ensure that “trivial” claims were excluded.

CREDITS: NZLawyer magazine, issue 139, 25 June 2010

JOHN HAMISI v. BONIFACE S/O PAUL (1968) HCD 166

(PC) Civ. App. 69-D-66, 2/2/68, Hamlyn J.

Defendant allegedly called plaintiff a thief. The Primary Court found that defendant had uttered the words complained of, but that such word were justified in that they were true. Defendant had seen plaintiff leaving a strange house in the early hours of the morning, and upon asking him what he was doing, plaintiff ran away. Plaintiff never was convicted or even charged, with theft, and indeed there is no evidence that he stole anything from the house.

            Held: 

“(T)he term ‘thief’ was probably used in a colloquial sense as meaning a person who was intent on stealing rather than one who was actually carrying the goods of another away. It seems a fairly reasonable assumption by one who finds a person silently coming out of the house of another in the dark hours of the early morning, when that person flees, for the discoverer to chase him with a shout of ‘Thief, thief’. And in the absence of any explanation by the (plaintiff) as to what he was in fact doing at that time, the Court seems to have been justified in reaching the conclusion that it did – that the appellant was not entitled to compensation for defamation ……” Appeal dismissed.

YOUSOUPOFF v. M.G.M. PICTURES LTD (1934) 50 T.L.R 581

YOUSSOUPOFF v. METRO-GOLDWYN-MAYER PICTURES LTD(1934) 50 TLR 581. 

ATHMAN LUSAJU v. SADIKI ATHUMANI (1968) HCD 128

ATHMAN LUSAJU v. SADIKI ATHUMANI (1968) HCD 128

DIXON v. HOLDEN (1869) 7 EQ. 488

In Dixon v. Holden, (1869) LR 7 Eq 488, it was held that a man's reputation is his property, more valuable than other property.