Cruise and Another v Express Newspapers Plc and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,SIR JOHN KNOX,LORD JUSTICE STUART-SMITH |
| Judgment Date | 22 July 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0722-8 |
| Docket Number | QBENI 98/0350/1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 1998 |
[1998] EWCA Civ J0722-8
Lord Justice Stuart-Smith
Lord Justice Brooke
Sir John Knox
QBENI 98/0350/1
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
(MR JUSTICE POPPLEWELL)
Royal Courts of Justice
Strand
London W2A 21L
MR PATRICK MOLONEY QC (instructed by Messrs Henry Hepworth) appeared on behalf of the Appellants (Defendants).
MISS ADRIENNE PAGE (instructed by Messrs Olswang) appeared on behalf of the Respondents (Plaintiffs).
This is an appeal by the defendants against a judgment of Popplewell J on 9th March 1998. On an application by the defendants under Order 82 Rule 3A he refused to strike out all but one of the plaintiffs' pleaded meanings in their Statement of Claim in this libel action, and on an application by the plaintiffs he ordered that the plea of justification contained in paragraphs 6 and 7 of the Defence should be struck out. The plaintiffs have served a Cross-Notice asking for the judge's order to be affirmed on additional grounds, and seeking to reinstate the pleaded meaning which the judge struck out.
Appeals against orders made by judges pursuant to the new jurisdiction under Order 82 Rule 3A have been before this court on two recent occasions. In Hinduja v Asia TV Ltd (CAT 25th November 1997) Hirst LJ pointed out that this new rule was intended to lay down a swift and inexpensive procedure in chambers to eliminate meanings which the words are plainly incapable of bearing. He said that he would strongly wish to discourage appeals under this rule, on which the decision seemed to him to be essentially within the province of the judge in chambers. In a differently composed division of the court in Geenty v Channel 4 TV Corporation (CAT 13th January 1998) the same lord justice said that he did not in any way resile from that general approach, but he suggested that the Court of Appeal should be a little less reluctant to interfere with a judge's decision in a case in which he had ruled that a meaning relied upon was ruled out once and for all, since there would then be no opportunity for a jury to make the final decision. This approach is now well settled in the jurisprudence of this court, which is not willing to allow disgruntled litigants to make this useful new rule a fertile playground for libel lawyers. I hope that this message may be picked up by the editors of the Supreme Court Practice in a note to this Rule, and that judges may be unwilling to grant leave to appeal against their rulings under Order 82 Rule 3A (and in particular their rulings that the words pleaded are capable of bearing the meaning or meanings relied upon) except in cases which are clearly fit for further argument in this court.
The plaintiffs are a well known film actor and a well known film actress. The article of which they make complaint appeared in the magazine section of The Express on Sunday on 5th October 1997. The magazine has on the front of it a photograph of the female plaintiff called "Thrill Seeker. Nicole Kidman turns all-action babe". On most of pages 14 to 16 there is an article by Jenny Cooney in flattering terms in which she describes Nicole Kidman's life story and her role in a new film called The Peacemaker which was to open shortly. The second half of page 15, however, is taken up with a very much less flattering article about the two plaintiffs headed: "Cruising for a bruising … What's the inside story on Hollywood's Golden Couple? Ashley Bart-Powell investigates."
The plaintiffs set out the whole of this article in the Statement of Claim. It is in the following terms:
"'Nicole bans brickies from eyeing her up' said the papers last year. Not much of a story, really: the Cruises had the builders in to do a little work on their LA mansion and Nicole ordered the hapless hodwielders to turn and face the wall as she passed. Quite natural, of course; you and I would do the same thing. They were brickies, after all, so they ought to be facing the wall. Probably that was the only way the poor girl could get any work out of them. But it was just too good a story to miss.
Ever since she burst upon the scene in the timeless Aussie epic BMX Bandits, an electro-permed proto-Kylie (below), people have wanted to know the inside story. Her flawless looks and lustrous hair are perhaps a provocation to gnarled pressmen at the opposite end of the aesthetic spectrum. Nicole, poor girl, has always made good copy.
Since she married himbo hunk Tom Cruise and the couple inaugurated themselves as Hollywood royalty—not difficult when the competition is led by Bruce 'n' Demi—there has been a persistent trickle of speculation. Their failure to produce offspring (like everyone else in uptown LA, they adopted some poor children) set Hollywood tongues wagging. He was gay, they said; he was impotent; she was gay. The whole marriage thing was no more than a business arrangement, they sniggered, and, most sinister of all, the wedding had been ordered by the Church of Scientology, which was keen to establish the couple as a beacon of clean living and an example to the young.
Scientology has become the religion of choice in A-list Hollywood, and the Cruises are very keen on it. The only one of the world's major faiths whose founder is called Ron, its adherents include such models of continence and rectitude as Lisa Marie Presley and Kirstie Alley.
The most famously devoted of L Ron Hubbard's disciples is, of course, John Travolta. Only last month the porky jiver was up before a US congressional hearing to complain that the Germans had been beastly to his fellow Hubbard-lovers. Tom and Nicole won't talk about their faith, of course. In fact, they won't talk about their private life at all. Loftily outraged by the tittle-tattle, they have clammed up. That, sadly, is always the green light for gossips. Refusing to dignify most of the insinuations with a denial, Cruise made a furious exception for suggestions that he is infertile. No one accuses Top Gun of firing blanks. Cruise launched a £40m lawsuit, his lawyer resonantly declaring that 'Tom Cruise is not sterile. He has normal sperm.' The public was greatly reassured.
The Scientology connection might give the couple an opportunity to hit back at those who feed the public's curiosity. 'Truth and Accuracy in the Media', a scientologist organisation dedicated to slapping journalistic wrists, has been surpassed, if recent reports are correct, by the efforts of three unnamed movie stars to dig the dirt on newspaper editors by hiring their own team of investigators. Any suggestions that a pocket-sized action man and his towering Australian escort might have had a hand in this are, of course, malicious rumour.
So is any of it true? Is Nicole really a head taller than Tom? There's one way to find out. Scientologists' favourite trick is to wire themselves up to an 'E-meter', a device rather like a lie detector, invented by L Ron Hubbard (who else?). This contraption promises to reveal whether the subject is suppressing emotions. When the needle flickers, he or she is invited to talk about what dark secret is producing the charge. One day, perhaps, Tom and Nicole will wire themselves up and invite the gentlemen of the press along to watch."
In paragraph 4 of the Statement of Claim the plaintiffs pleaded:
"4 In their natural and ordinary meaning, and juxtaposed with Jenny Cooney's article on the same page, the words complained of in paragraph 3.2 hereof meant and were understood to mean that the real 'inside story' on the plaintiffs is -
4.1 that the second plaintiff is someone who arrogantly ordered building workers at her home to turn and face the wall as she passed;
4.2 that, far from being the 'golden couple' that they seek to portray, the 'Hollywood royalty' in which they have cast themselves, and the 'great love match' suggested by the second plaintiff in her interview with Jenny Cooney, the likely truth is that their marriage is a hypocritical sham, there being good reasons to believe that it is a cover for the homosexuality of one or both of them and/or a cynical business arrangement and/or a marriage ordered by the Church of Scientology so that the Scientologists might dishonestly hold up the plaintiffs as an example to the young;
4.3 that there are good reasons to believe that the first plaintiff's failure to father children is attributable to impotence and/or sterility and his vehement public denial of sterility probably a lie;
4.4 that the 'plaintiffs adopted some poor children' because it is the fashion in 'uptown LA';
4.5 that the plaintiffs have almost certainly been involved in hiring a team of investigators to dig the dirt on newspaper editors, something in respect of which, one can confidently predict, there will be a disingenuous denial from them attributing the claim to malicious rumour;
4.6 that by reason of 4.2, 4.3, 4.4 and 4.5 above, there are good reasons to regard the plaintiffs and each of them as hypocrites, frauds and liars;
4.7 that short of seeing the plaintiffs perform under a lie detector test, or something equivalent, nothing that the plaintiffs say or portray about themselves, including in the second plaintiff's interview with Jenny Cooney, should be trusted."
This is said to be a bane and antidote case (see Chalmers v Payne [1835] 2 Cr M&R 156). Under the law of defamation, if something disreputable to a plaintiff is stated in one part of a publication, but this stain is removed in another part of the same publication, the bane and antidote must be taken together when a court is asked to consider whether the...
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