Dorset Flint & Stone Blocks Ltd and Others v Moir and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE EADY |
| Judgment Date | 26 July 2004 |
| Neutral Citation | [2004] EWHC 2173 (QB) |
| Docket Number | JS/04/0103 |
| Court | Queen's Bench Division |
| Date | 26 July 2004 |
[2004] EWHC 2173 (QB)
IN THE HIGH COURT OF JUSTICE
Mr Justice Eady
JS/04/0103
SARAH PALIN (instructed by TG Readman) appeared on behalf of the CLAIMANTS
ALEXANDRA MARZEC (instructed by Browne Jacobson, Nottingham) appeared on behalf of the DEFENDANTS
Monday, 26th July 2004
Introduction
The first claimant is a family owned company, which manufactures and supplies what are known as Trad-Lite flintblocks. The second to fourth claimants are members of the family and are directors and shareholders of the company. They claim damages for libel and malicious falsehood alleged to be contained in a document published in hard copy and on the Internet entitled "Chilterns Building Design Guide: Chilterns Flint: Supplementary Technical Note". That has been referred to throughout the proceedings as the "technical note", and I shall adopt the same phrase.
Under the Countryside and Rights of Way Act 2000, the statutory duty is imposed on local authorities to produce management plans for areas of outstanding natural beauty. The Chilterns is one such area. The duty is delegated by the 14 local authorities in the Chilterns area to a body known as the Shadow Chilterns Conservation Board ("SCCB").
The SCCB is charged with the responsibility of developing and promoting policies to help conserve and enhance the Chilterns area of outstanding natural beauty. It is seeking a Parliamentary order to enable it to operate as a conservation board under the 2000 Act. Pending any such order, Wycombe District Council, which is the third defendant in these proceedings, acts as the host authority providing some personnel and financial services. The second defendant is the chairman of the SCCB, Sir John Johnson.
In October 2002 after consultation, the SCCB produced a management plan for the Chilterns area. Among other matters, it dealt with the built environment, and stated that to supplement the advice in the management plan reference should be made to a design guides to building, including the Chilterns Building Design Guide. That was a document which had first been adopted in April 1999.
The SCCB Technical Note
Early last year, the SCCB produced a technical note designed to supplement the Building Design Guide. The purpose of it was to provide some additional guidance on the appropriate use of flint in the Chilterns area. One of the authors was Dr James Moir, the first defendant. He is a heritage management consultant.
On or about 17 th February of last year, a draft version of the technical note was distributed to interested individuals and organisations and put on the SCCB's website for further comments and suggestions. The final version of the technical note was approved in May 2003 by the SCCB and subsequently, in or about July of that year, a small number of hard copies were distributed. The final version was not put on the Internet. Nevertheless, the words complained of in these proceedings appear both in the draft and the final versions.
The claimants' flintblocks are pre-cast blocks for use in building. They have flint stones already embedded in the outside surface and are intended to save time and money as compared to the traditional method of laying flint stones individually.
It was clearly part of the message of the technical note, and particularly in its chapter 3 "Using Flint Today", that the use in the Chilterns of pre-cast flint panels should be discouraged, and that local flint should be used, worked according to traditional methods. One of the main objections appears to be that with "imported pre-cast blocks" the regularity of their edges and shape is such that, inevitably, the banding between them cannot be disguised. That is to say, however skilfully the joins may be covered by mortar, there are bound to be discernible straight lines or "banding" between each block, both horizontally and vertically. How obvious they are may depend on how narrow the edges of the blocks are and how skilfully they are put together and mortared. But the regularity of the banding cannot be wholly eliminated.
The Claimant's complaint
On page 22 of the technical note there appeared some photographs to illustrate various points made in it. Unfortunately, a picture of the first claimant's product appeared among them. It was clearly identifiable as such from the label on the packaging of some pre-cast concrete blocks waiting to be unwrapped. It is in the foreground and is located in front of a brick wall which has set within it 16 pre-cast flintblocks, apparently waiting to be pointed.
The caption to the photograph states:
"The banding between imported pre-cast blocks cannot be disguised."
There are two other photographs on the page and an inset box headed "Construction Checklist" which contains six bullet points consisting of "dos and don'ts".
One of the photographs shows part of the front elevation of a house with some pre-cast flint panels inserted in the brickwork. The caption expresses the view that:
"The token panels of flint do nothing to enhance the appearance of this poorly designed building."
One might have thought it clear from the context that these captions were expressing value judgments or aesthetic opinions par excellence. They do not depend upon the individual photographs, which are merely illustrative or supposed to be illustrative of the general opinions expressed. No one would suggest that the recommendations or value judgments expressed in the technical note are based solely upon, or depend upon, the photograph of the first claimant's product on page 22. Nevertheless, as soon as the contents of the technical note were drawn to the attention of the claimants an aggressive, not say "macho", approach was adopted by their solicitor in correspondence. The substance of the complaint, however, has shifted from time to time as they have tried to fit their natural resentment about the use of their trade name and telephone number into the framework of an established cause of action.
What is more worrying, however, is the readiness with which they have been prepared to throw about indiscriminately allegations of bad faith, recklessness and dishonesty in order to persuade the defendants to offer an apology, to withdraw the technical note in its entirety and to pay damages. There was the briefest of intimations to Sir John Johnson from TG Readman, a solicitor practising from Yealmpton, Plymouth, on 18 th August 2003 merely saying that a claim for damages was being formulated, without identifying a cause action.
By 2 nd September the publication was being described as "damaging and defamatory". Reference was also made to:
"… a satisfied customer who saw your publication on the website and who was appalled by the slur and drew it to my client's attention."
This "satisfied customer" turned out to be one Max Manners whose evidence has evolved as the months have gone by. In his initial communication of 26 th August 2003, he was suggesting that the defendants' website was:
"… using your trade name in an image and referring to it in a disparaging way."
He went on to suggest that page 22 of the technical note might be a breach of what he called:
"… the EEC fair/restrictive trade legislation."
He ended his e-mail with the words, "Good luck with a great product."
The nature of the claim
The claim form and particulars of claim were not served until 8 th April 2004. There was thus plenty of time for reflection and careful thought as to how the claim should be formulated both as to cause of action and remedies. Nevertheless, the shape of the claim has been rethought on more than one occasion since then. It was originally suggested in the particulars of claim that the photograph and words bore the following natural and ordinary meanings:
(a) that the claimants were falsely and dishonestly representing and promoting to customers and potential customers that the banding or jointing between Trad-Lite flintblocks can be disguised to create a finish that looks as if it had been laid in the traditional way, but in fact the banding between Trad-Lite flintblocks cannot be disguised;
(b) that they were falsely and dishonestly representing and promoting to its customers and potential customers that Trad-Lite flintblocks can be used in environmentally sympathetic building designs, when in fact, by reason of the above, the claimants are developing, manufacturing and promoting a product which is contrary to good practice in design and construction within the Chilterns area of outstanding natural beauty and its use should not be permitted or approved of within that area.
In the alternative, an innuendo was pleaded and certain particulars were set out pursuant to paragraph 2.3 of the Practice Direction to CPR Part 53 supporting the pleaded innuendo. That depended upon a number of facts about the claimants and also their published marketing material.
I need not set out all the particulars for present purposes but will identify certain passages to give the flavour. It is said that reliance is placed upon the fact that the unique selling point and the fundamental attraction of Trad-Lite flintblocks is that they create a finish that looks as though they had been laid in the traditional way. In fact, the claimants developed Trad-Lite flintblocks in response to many architects, specifiers and contractors rejecting pre-cast flintblocks because the banding was clearly visible and the appearance of the finished face looked too regular (see paragraph 10.2).
A little further on, in paragraph 10.3, it...
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