Berkoff v Burchill
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE MILLETT,LORD JUSTICE PHILLIPS |
| Judgment Date | 31 July 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0731-17 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENI 95/1519/E |
| Date | 31 July 1996 |
[1996] EWCA Civ J0731-17
Lord Justice Neill
Lord Justice Millett
Lord Justice Phillips
QBENI 95/1519/E
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mr Justice Drake)
Royal Courts of Justice
Strand
London WC2
MR J PRICE QC (Instructed by Theodore Goddard, EC1A 4EJ) appeared on behalf of the Appellants
MR M BARCA (Instructed by Mishcon de Reya, WC1B 5HS) appeared on behalf of the Respondent
( )
Wednesday, 31st July 1996
Introduction.
This appeal raises questions as to the meaning of the word "defamatory" and as to the nature of an action for defamation.
The facts can be stated quite shortly. The plaintiff, Mr. Steven Berkoff is an actor, director and writer who is well known for his work on stage, screen and television. The first defendant, Miss Julie Burchill, is a journalist and writer who at the material times was retained to write articles about the cinema for the Sunday Times. The second defendants, Times Newspapers Limited, are the publishers of the Sunday Times.
In the issue of the Sunday Times dated 30 January 1994 Miss Burchill wrote a review of the film "The Age of Innocence". In the course of the review, in a general reference to film directors, Miss Burchill wrote:
"… film directors, from Hitchcock to Berkoff are notoriously hideous-looking people."
Nine months later Miss Burchill returned to the same theme in a review of the film "Frankenstein". In this review, which was published in the issue of the Sunday Times dated 6 November 1994, Miss Burchill described a character in the film called "the Creature". She wrote:
"The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature—no bolts in the neck or flat-top hairdo—and I think it works; its a lot like Stephen Berkoff, only marginally better-looking."
Following the publication of the second article Mr. Berkoff made an immediate complaint. The complaint was rejected, however, and on 1 March 1995 Mr. Berkoff issued a writ. In paragraph 6 of the statement of claim, which was served on the same day as the writ was issued, it was alleged that the passages in the two articles which I have set out meant and were understood to mean that Mr. Berkoff was hideously ugly. It is to be noted that in paragraph 5 of the statement of claim, after the words in the second article of which complaint was made had been set out, it was pleaded that the plaintiff would rely on the full text of the article for context.
The defendants then issued a summons pursuant to RSC Order 14A seeking an order that the following question of law might be determined:
"Whether the meaning pleaded in paragraph 6 of the statement of claim … is capable of being defamatory".
The summons also included an application for an order that if it were determined that the meaning was not defamatory the action should be dismissed.
The summons was heard by Sir Maurice Drake sitting as a High Court Judge. After hearing argument the judge dismissed the defendants' application, but he gave the defendants leave to appeal.
The primary submission on behalf of Mr. Berkoff before the judge was that the meaning was defamatory because to call a person "hideously ugly" would tend to expose him to ridicule. As a subsidiary submission it was contended that such a description would tend to cause other people to shun or avoid Mr. Berkoff. The judge stated his conclusion at page 6 of his judgment as follows:
"I must say I am doubtful whether to call a person `hideously ugly' exposes that person to ridicule, but I have come to the conclusion that it is likely to lead ordinary reasonable people to shun the plaintiff, despite the fact that being hideously ugly is no reflection on a person's character or good reputation. For that reason, albeit with hesitation, I hold that to call a person `hideously ugly' is defamatory. If justification is pleaded, that will involve the jury deciding whether the plea is made out."
The Law
Before stating my conclusion I propose to examine the relevant question of law under three headings
(1) The scope of the present application.
(2) Definitions of "defamatory".
(3) Additional Guidance from decided cases.
I turn to the first heading.
The scope of the present application.
No order has been made as to the mode of trial in this case. One must therefore proceed on the basis that the action is likely to be tried, if at all, with a jury. The question of fact: libel or no libel, is a matter for the jury. But the court has jurisdiction to rule that as a matter of law words are incapable of being defamatory.
A striking example of the exercise of this jurisdiction is provided by the decision of the House of Lords in Capital and Counties Bank Ltd. v. George Henty & Sons (1882) 7 App. Cas. 741. In that case the defendants sent a circular to a large number of their customers stating "Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank." The contents of the circular became known and there was a run on the bank. Nevertheless it was held by the House of Lords, affirming the majority decision of the Court of Appeal, that in their natural meaning the words were not capable in law of being defamatory. It may be noted that the issue had been left to the jury at the trial but they had been unable to agree.
It is clear, however, that the court should exercise great caution before concluding that words are incapable of a defamatory meaning. In the present case the position is somewhat different because a specified meaning has been isolated and the preliminary issue requires the determination of the single question, whether that meaning is capable of being defamatory. The practice of pleading inferential meanings is of course to be encouraged where it is appropriate and it may often enable the court to dispose of extravagant inferential meanings under the new procedure enshrined in RSC Order 82 Rule 3A(1). But there may be cases, of which this perhaps is one, where the inferential meaning may not provide a wholly adequate paraphrase for the words complained of. Thus it was suggested in the review that the appearance of the "marginally better-looking" Creature was such that it was "rejected in disgust" when it came out "scarred and primeval".
I turn next to consider some of the definitions of the word "defamatory".
Definitions of "defamatory"
I am not aware of any entirely satisfactory definition of the word "defamatory". It may be convenient, however, to collect together some of the definitions which have been used and approved in the past.
(1) The classic definition is that given by Lord Wensleydale (then Parke B) in Parmiter v. Coupland (1840) 6 M & W 105, 108. He said that in cases of libel it was for the judge to give a legal definition of the offence which he defined as being:
"A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule."
It is to be noted that in Tournier v. National Provincial Bank [1924] 1 KB 461 Scrutton L.J. said at 477 that he did not think that this "ancient formula" was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt. Atkin L.J. expressed a similar opinion. At 487 he said:
"I do not think that it is sufficient direction to a jury on what is meant by `defamatory' to say, without more, that it means: were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers but it is obvious that suggestions might be made very injurious to a man's character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt—for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of the jury might understand as hatred or contempt."
(2) In Scott v. Sampson (1882) 8 QBD 491 the Court of Queen's Bench was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. At 503 Cave J. explained the nature of the right which is concerned in an action for defamation:
"Speaking generally the law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action."
But as was pointed out in the report of the Faulks Committee (paragraph 62) the word "discredit" is itself incapable of precise explication. Nevertheless, in Youssoupoff v. M.G.M. Pictures Ltd. (1934) 50 TLR 581 Scrutton L.J. said that he thought that it was difficult to improve upon the language of this definition.
(3) In Sim v. Stretch [1936] 2 All ER 1237 Lord Atkin at 1240 expressed the view that the definition in Parmiter v. Coupland (supra) was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:
"… after collating the opinions of many authorities I...
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