Injurious Falsehood in UK Law

When I adjourned the trial on 1 December 2006, I ordered inter alia the defence of Mr and Mrs Kristaps be struck out unless they complied with certain outstanding costs orders. That order was not complied with and, accordingly, Ms Skinner's primary submission is that the defence was automatically struck out.

This means that the Claimants will still need to establish their case in relation to each pleaded publication and to adduce evidence in relation to such matters as aggravated and special damages. The plea of aggravated damages in this case largely overlaps with the plea of malice which is an essential ingredient in support of the claim for injurious falsehood.

like my Lord, I would prefer to deal with this on principle. I agree that a publication is an essential part of the cause of action; that once there is publication the cause of action is complete, and there is no room for the doctrine that the cause of action can, so to speak, be allowed to be in a coma or lie dormant until such time as some fact emerges which would transform an otherwise innocent statement into a defamatory one.

One thing is dear: There is no pecuniary damage in this country. No-one suggests that the box office receipts at the Adelphi Theatre are any the less by reason of this publication. "Charlie Girl" is such a success in England that it is fully booked up already well into this present season. The only pecuniary damage that is suggested is the chance of losing a production in the United States. Mr Fielding gave his evidence very accurately and very impressively.

In these circumstances I cannot find any evidence to show that the chances of production in the United States have been adversely affected. I should have thought that everyone of note in the theatrical profession in the United States must know by now that "Charlie Girl" has been a great success. None of them is likely to be influenced by those two words written as long ago as March 1966. I would only assess the pecuniary damage from this publication at a nominal sum which I would put at £100.

The modern leading authority as to the meaning of malice is Horrocks v Lowe [1975] AC 135, 149–151. As to its pleading, there are stringent requirements imposed because malice is recognised as being tantamount to an accusation of fraud or dishonesty and must not be made on a merely formulaic basis.

The remedy provided by the law for words which injure a person's reputation is defamation. Words may also injure a person without damaging his reputation. An example would be a claim that the seller of goods or land is not the true owner. Another example would be a false assertion that a person has closed down his business. Such claims would not necessarily damage the reputation of those concerned.