Sim v H. J. Heinz Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE MORRIS,LORD JUSTICE WILLMER |
| Judgment Date | 06 February 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0206-1 |
| Court | Court of Appeal |
| Date | 06 February 1959 |
[1959] EWCA Civ J0206-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson
Lord Justice Morris and
Lord Justice Willmer.
MR GUY ALDOUS, Q. C. and MR J. N. B. PENNY (instructed by Messrs Goodman, Derrick & Co.) appeared for the Appellant, (Plaintiff below).
MR PETER BRISTOW (instructed by Messrs Warmingtons & Trevor Jones) appeared for the first Respondents, (first Defendants below).
MR GERALD GARDINER, Q. C. and MR HELENUS MILMO (instructed by Messrs Allen & Overy) appeared for the second Respondents, (second Defendants below).
This is an appeal from an order of Mr Justice McNair dated 18th December, 1958. The order was made by the learned judge upon a summons in an action brought by the Plaintiff against the two Defendants in which the Plaintiff was basing his claim upon libel and what is called passing-off. He was seeking an injunction to restrain the Defendants until the trial of the action or until further order from broadcasting or procuring the broadcasting of a particular television commentary.
This was an interlocutory application in the Queen's Bench Division. The summons was issued and heard in Chambers, and the issues in the action as raised in the Statement of Clair - I do not think any Defence has yet been delivered -have not been resolved, there having been as yet no trial. The learned judge, however, on his own volition, did not dispose of the matter in Chambers but disposed of it in open Court so that some publicity has already been given to this case which it would not otherwise have received.
I have heard read the admirable statement of the learned judge on the facts of this case and I have heard the reasons. which he gave for refusing the interlocutory application for an injunction, and I cannot improve upon that judgment. It was an order made in exercise of his discretion, and in my view that discretion cannot be assailed in the way in which it was exercised.
He based himself fundamentally upon this. There was here a claim that a voice used in the television broadcast was a representation that it was the voice of the Plaintiff, the Plaintiff being an actor, the voice used in the television broadcast coming from the lips of another actor and sounding as if it were the voice of the Plaintiff. There was, it was claimed, a cause of action in libel, but the Plaintiff before the learned judge, in light of the authorities, abandoned the claim for an injunction based upon libel because it was clear that it could not succeed, as in libel cases it has been held in many cases - the only one to which I need refer is ( Bennard v. Perryman 1891, 2 Chancery, page 269) - that the Court will not prejudge the issue of libel or no libel where that is a live issue in the case and where the question is whether the words are capable of a defamatory meaning or whether the words are justified.
In this case the learned judge came to the...
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