Loughans v Odhams Press Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DIPLOCK,LORD JUSTICE UPJOHN |
| Judgment Date | 11 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1211-3 |
| Court | Court of Appeal |
| Date | 11 December 1961 |
[1961] EWCA Civ J1211-3
Lord Justice Sellers
Lord Justice Upjohn and
Lord Justice Diplock
In The Supreme Court of Judicature
Court of Appeal
From Mr. Justice McNair (In Chambers)
MR (instructed by S. Sydney Silverman, Esq.) appeared for the Plaintiff (Respondent).
MR Gerald GNer, Q.C., and Mr H. Davidson (instructed by Messrs. Simmons & Simmons) appeared for the Defendants (Appellants).
I will ask Lord Justice Diplock to give this judgment.
This is an action for damages for libel. The Statement of Claim sets out in paragraph 2 the defamatory matter complained of – namely, a newspaper article which purports to be an account by prosecuting Counsel of two trials of the Plaintiff in 1944 for the murder of Rose Robinson. In the first trial the jury disagreed; in the second they acquitted the plaintiff.
The account of the two murder trials includes, in addition, the allegations that the Plaintiff was convicted and sentenced for assault and robbery committed upon another woman, and that he had been picked up by the police when trying to sell stolen shoes.
Paragraph 3 contains an innuendo that the words complained of meant, and were understood to mean, that the Plaintiff was guilty of and had committed the murder of Rose Robinson, and in purported compliance with Order 19 Rule 6(2) contained the statement: "The Plaintiff will rely upon the facts and matters stated in the said article". The present appeal is against an order of Mr. Justice McNair reversing an order of the nester and refusing to strike out Paragraph 3 of the Statement of Claim.
Mr. Gardiner has invited us to treat this appeal as if it raised question of general importance in the law of lil and of particular importance in the present ease. His contention is that since the alteration of the Rules in 1949 when a new sub-rule (2) Was added to Order 19 Rule 6, an innuendo can only lawfully be pleaded when the Plaintiff relies upon facts and matters other than the actual words of the libel Itself as giving to those words a defamatory meaning different from their natural and ordinary meaning.
It is to be observed the outset that paragraph 3 of the Statement of Claim on the face of it relies in support of the innuendo not upon the words of the article complained of, but upon the facts and matters stated in it, the truth of which on the face of his pleading as it stands, the Plaintiff is asserting that he will prove. The matter has, however, been argued before the Master, the Judge and this Court as if this sentence read: "The Plaintiff will rely upon the words contained in the said article." This is what the Plaintiff intended and was under- stood by the Defendants to mean by the words which he has in fact used in his pleading – despite the fact (if I may be excused the parenthetical comment) That no extraneous matters are relied on in support of the innuendo that the words of paragraph of the Statement of Cla$ were used in this .
I propose, therefore, to deal with this case as if the last sentence of paragraph of the Statement of had been amended ac say what the Plaintiff intended and the Defendants under them to .
direct word."
In such a case and innuendo "which means nothing more than the words 'id est', 'scilicet' or 'meaning' or 'aforesaid' and explanatory of the subject natter sufficiently expressed before" (ibid at page 684) Was essential.
There was, however, a highly technical rule of pleading that an innuendo required prefatory averments to show how the words were used in the sense declared in the innuendo, and this rule, which afforded one of the means by which the judges after the passing of Fox's Libel Act in 1792 retained some control over the issue "libel or no libel", gave rise to arguments upon demurrer of great subtlety as to whether the prefatory averment was sufficient to support the innuendo. An outstanding; example can be found in Goldstein v. Foss (1827 2 B. $ C. 154). But it would be a mistake to suppose that the prefatory averment was limited to facts not stated in the words complained of, or that an innuendo could not be pleaded when the prefatory averment only averred as facts matters which were stated in the words complained of.
Section 61 of the Common Law Procedure Act 1852 abolished the necessity for prefatory averments, but did not otherwise affect the right to plead an innuendo or the necessity of so pleading in cases where the defamatory matter was not expressed in direct words.
This amendment was discussed by the Court of Queen's Bench in Watkins v. Hall (1868 law Reports, 2 Queenly Bench, page 396) at page 403, where Mr. Justice Blackburn said: "A declaration containing one count for libel or slander with an innuendo that the words were used in a particular meaning shall be taken as if there were two counts one with the innuendo and one without the innuendo, and the Plaintiff prove either it is sufficient."
The effect of the section, said Mr. Justice Lush in the same case, was "to give to a declaration like this a kind of double character and to give the Plaintiff the benefit of the action if the words themselves are actionable whether the precise moaning he ascribes to them by the innuendo is proved or not."
Although Watkin v. Hall was decided before the new system of pleading was introduced by the Judicature Act 1875, it has been treated as authoritative with respect to pleadings in libel and slander since that date, and the practice of pleading, innuendoes continued as before. The relaxation of the strict rule that unless the defamatory meaning is expressed in direct words it was essential to plead an innuendo reduced the necessity for doing so in cases where, in the words of lord Chief Justice do Grey: "Every man who reads such a writing may put the same construction on it", although such construction was only an inference drawn from the direct words used. In such cases there is today no need to plead an innuendo. Nevertheless, whether the innuendo was necessary or not, Mr. Gardiner has been unable to point to any case prior to 1949, or any reported case thereafter, in which it has bon hold that a Plaintiff may not allege in his pleading an innuendo as to a special defamatory meaning of the words and require the verdict of a jury as to whether the words bear that meaning even although he has led no evidence of facts and matters upon which he relies, other than the words themselves, as giving rise to the meaning alleged in the innuendo.
Mr. Gardiner's proposition, with whatever sympathy I may regard it, thus seems to me to be contrary to well-established law, at any rate as it existed from 1853 to 1949. He contends, however, that the well-established law was altered inferentially in 1949, by the making of the new sub-rule (2) of Order 19 Rule 6, which is in the following terms: "In an action for libel or slander if the Plaintiff alleges that the words or matter complained of were used in a defamatory sense other than their ordinary meaning he shall give particulars of the facts and matters on which he relies in support of that sense."
This amendment to the Rule merely requires the plaintiff to give the Defendant notice by particulars of any facts or matters which he intends to prove in support of the contention made in his innuendo that the words bear particular defamatory meaning. If the defamatory meaning is a matter of inference from the terms of the statement complained of and he intends to rely upon no extraneous facts in support of the inference, it is in my view a sufficient compliance with this Rule if he so states in his particulars.
If it were otherwise it would be perfectly simple to get around the Rule as Mr. Gardiner seeks to interpret it, by selecting one or two facts stated in the words complained of. As far as I can see in the present case, Mr. Gardiner's argument would have failed in limine had the Plaintiff pleaded that in support of the innuendo he would rely upon the facts that upon such-and-such a date the Plaintiff was charged with and tried for the murder of Rose Robinson; that he is prosecuted by Mr. Casswell, K.C.; that at the first trial the jury disagreed and that upon the second trial he was acquitted.
If the new rule were to lead to the necessity of employing such devices as those it would indeed introduce into the law of defamation fresh technicalities as to prefatory averments as regrettable as those which were abolished in 1353. I do not think it has this effect. Its object is a more modest one - namely, to prevent the Defendant being taken by surprise at...
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