DATES: 1967 Nov. 27, 28, 29, 30; 1968 Jan. 17

COUNSEL: Sir Peter Rawlinson Q.C. and Hugh Davidson for the defendants.
David Hurst Q.C. and Leon Brittan for the plaintiffs.

SOLICITORS: Simmons & Simmons; Lovell, White & King.

JUDGES: Lord Denning M.R., Diplock and Salmon L.JJ.

HEADNOTE: Libel and Slander – Fair comment

Plaintiff, a The plaintiff, S., a solicitor, after many years as town clerk of Hammersmith, retired and became legal adviser to V. Ltd., who had a factory in Hammersmith. The factory adjoined Upper Mall, a narrow way by the Thames along which the public had a right of way on foot. Some years earlier the Hammersmith Council had put up a notice signed by S. as town clerk forbidding cycling along it. Later S. as legal adviser of V. Ltd. had been trying to establish that the company had a right of way for vehicles over it. Such a right was denied by many local residents. [*158]

On March 30, 1964, the defendant newspaper published a letter from H., a local resident, entitled “Double Think,” referring, inter alia, to the removal of the notice signed by S. as town clerk, which, the letter said, might have made local residents “a little cynical” and stating that it was Plaintiff who on behalf of the firm to which he was legal advisor claimed the right to drive lorries along the path. On April 14, the newspaper published a letter from G., the chairman of V. Ltd., disclaiming any intention by his company to use the way for lorries. On April 23, 1964, the newspaper published a further letter from H. saying, inter alia, that the intentions of V. Ltd. were obviously to establish the vehicular right of way “willy-nilly,” without even waiting for a decision from the council.

S., V. Ltd. and G. brought a libel action against the newspaper and H. Paull J. held that the letter of March 30 bore the imputation that S. had brought improper pressure to bear on the council employees and was not fit to remain a solicitor and that the letter of April 23 bore the imputation that G. and through him V. Ltd. were insincere and hypocritical and had been guilty of improper conduct. All three plaintiffs were awarded substantial damages.

On appeal by the defendants:—

Held, allowing the appeal, that in their natural and ordinary meaning the words of the letters were fair comment on a matter of public interest and, as they were honest expressions of genuine opinions, the action failed.

Lewis v. Daily Telegraph Ltd. [1964] A.C. 234; [1963] 2 W.L.R. 1063; [1963] 2 All E.R. 151, H.L.(E.) considered.

Per Lord Denning M.R. and Diplock L.J. The right of fair comment, which is one of the essential elements of free speech, must not be whittled down by legal or linguistic refinements (post, pp. 170, 179).

Per Diplock and Salmon L.JJ. The letter of March 30 did not mean that S. had behaved unprofessionally or in any way dishonourably (post, pp. 178, 181).

Per Lord Denning M.R. When a plaintiff complains of words in their natural and ordinary meaning, he must accept that meaning as it is with all the derogatory imputations that it conveys. He cannot select some of the imputations and reject others as he pleases (post, p. 168).

Per Diplock L.J. The artificial and archaic character of the tort of libel is a fit topic for the attention of the Law Committee (post, pp. 171, 179).

Per Salmon L.J. I am inclined to think that where a plaintiff alleges an inference from the ordinary and natural meaning of words he is bound by the terms of his pleading and cannot rely upon a different inference (post, p. 185). There is no sensible reason why a judge’s finding of fact in a libel action should be more sacrosanct than in any other action (post, p. 187).

Judgment of Paull J. reversed. [*159]

APPEAL from Paull J.

By writ dated June 24, 1964, the first plaintiff, Horace Cornelius Slim, claimed damages against the defendants, The Daily Telegraph Ltd. and John Herbert, for libel published in the correspondence column of the “Daily Telegraph and Morning Post” newspaper dated March 30, 1964, under the heading “Double Think” and the second and third plaintiffs, Vitamins Ltd. and Henry Charles Herbert Graves, claimed against the defendants damages for libel published in the correspondence column of the newspaper dated April 23, 1964, under the heading “Right of Way Risks on the Riverside.”

The statement of claim alleged, inter alia, that the first plaintiff was a solicitor who between 1928 and 1948 was deputy town clerk of Hammersmith and between 1948 and 1958 was town clerk of Hammersmith and who since January 1, 1959, had been a legal adviser to the second plaintiffs (paragraph 1); that the latter carried on business as food manufacturers and since 1929 had occupied factory premises in Upper Mall, Hammersmith; that the third plaintiff was at all material times managing director of the second plaintiffs; that the first defendants were the proprietors and publishers of the newspaper, which had a very large circulation throughout the United Kingdom; that the second defendant was a neighour of the second plaintiffs; that on March 30, 1964, the second defendant falsely and maliciously wrote and published and falsely and maliciously caused the first defendants to publish, and the first defendants falsely and maliciously printed and published of and concerning the first plaintiff and of and concerning him in the way of his profession and business in a letter to the editor the words in the letter set out in the judgment of Lord Denning M.R. (post, p. 165). It was alleged that the words in their natural and ordinary meaning bore the following defamatory inferences: (1) that the first plaintiff was guilty of improper professional conduct as a solicitor and/or (2) in his position as legal adviser to the second plaintiffs applied standards of professional conduct as a solicitor which were unsatisfactory and/or lower than those applied by him during his period of office as town clerk and/or (3) as the retired town clerk of Hammersmith he was guilty of disloyalty to his former employers, the Hammersmith Borough Council, and/or (4) that he had made improper use of his position as the ex-town clerk by bringing pressure to bear on the council to remove a notice in Upper Mall. It was alleged that the words bore the meanings and each of them [*160] as secondary meanings, the matters pleaded in paragraph 1 being given as particulars pursuant to R.S.C. (Rev. 1965), Ord. 82, r. 3 (1). The words of the letter of April 23, 1964, (set out in the judgment of Lord Denning M.R. post, pp. 166 – 167), were pleaded as having been falsely and maliciously written and published by the second defendant and thereby falsely and maliciously printed and published by the first defendants of and concerning the second and third plaintiffs in the way of their respective businesses. It was alleged that the words in their natural and ordinary meaning bore the following defamatory inferences: (1) that the statements of the third plaintiff on behalf of the second plaintiffs (a) concerning the intentions of the second plaintiffs in relation to the use of Upper Mall by the second plaintiffs’ vehicles and/or (b) concerning the second plaintiffs’ wishes to improve riverside facilities and appearance and to extend the riverside walk were insincere and hypocritical; (2) that the second plaintiffs under the directions of the third plaintiff as managing director were guilty of unlawful and/or improper and/or arrogant conduct in the exercise of passage along Upper Mall with motor cars. Further or alternatively it was alleged that the words bore and were understood to bear the meaning pleaded in (1) as a secondary meaning, particulars being furnished pursuant to R.S.C. (Rev. 1965), Ord. 82, r. 3 (1).

The defendants, inter alia, pleaded justification and fair comment made in good faith and without malice on a matter of public interest “namely the rights of the public in Upper Mall” and the conduct of the plaintiffs in regard thereto.

On April 28, 1967, Paull J. gave judgment for the plaintiffs and awarded the first, second and third plaintiffs £3,500, £500 and £1,500 damages respectively.

The defendants appealed.

The facts are fully stated in the judgments of Lord Denning M.R. and Salmon L.J.

Sir Peter Rawlinson Q.C. and Hugh Davidson for the defendants. The letters complained of were fair comment on a matter of public interest. They were honest expressions of opinion on matters of substantial local importance. They were made without malice. It was not suggested at the trial and is not suggested now that the plaintiffs were dishonest, insincere or hypocritical. This admission at the trial did not invalidate the defence of fair [*161] comment. The cynicism, the scepticism referred to in the letters was directed to the Hammersmith Council.

The words complained of in the letters were not defamatory of the plaintiffs and in any event the defence of fair comment should succeed.

Hugh Davidson following. The heading of “Double Think” was put in entirely on the responsibility of the Daily Telegraph and cannot be used against Mr. Herbert. If a plaintiff does set out the natural and ordinary meaning of the words complained of, he is not confined to that meaning at the trial and the defendant is therefore entitled to plead also to any other meaning that the words may bear.

David Hurst Q.C. and Leon Brittan for the plaintiffs. The whole foundation of the case before Paull J. was based on the directions given by the House of Lords in Lewis v. Daily Telegraph Ltd.1 These were sensible directions which simplified libel actions. The House of Lords directed that it was the duty of the plaintiff in certain circumstances to plead the meaning to be inferred from the natural and ordinary meaning of the words used and that it was the duty of the judge to rule as to the ambit of the meanings which the words were capable of bearing and the criteria on which the natural and ordinary meaning of the words was to be judged. Lewis’ case1 is the foundation of the plaintiffs’ argument. Part of the background of that case was a difference of opinion as to what could be pleaded: see per Lord Reid2 and Lord Morris of Borth-y-Gest.3 One cannot just say “Here is a libel: is it true?” but “Here is a libel: what is its meaning? is that meaning true?”

Here the plaintiffs tied themselves to what they contended was the more serious of the natural and ordinary meaning of the words used. You cannot determine whether and to what extent the words complained of injure someone’s reputation without determining what that reputation is. It is highly desirable that the inferential meaning of words should be pleaded. At the heart of the matter there is the question, what do these letters mean?

Summarising the effect of the decision in Lewis’ case4: (1) the judge is bound to rule as a matter of law as to the ambit of the meaning of the words; (2) the natural and ordinary meaning of the words includes all inferences which a reasonable man might draw as a matter of impression and is not limited to a lawyer’s

1 [1964] A.C. 234; [1963] 2 W.L.R. 1063; [1963] 2 All E.R. 151, H.L.(E.)
2 [1964] A.C. 234, 257.
3 Ibid. 264.
4 Ibid.

[*162] impression; (3) the criterion of what the words are capable of meaning is the most serious meaning; (4) there is strong encouragement to the practitioner to plead the inferential meaning.

Paull J. was right in the findings which he reached as to the meanings of the letters. In considering whether he was right, the court must ask itself the question which Lewis’ case4 said must be asked by the jury. Great stress is laid on the words “Double Think” and “cynical.” Double think immediately raises the question of sincerity and connotes an element of duplicity. The words “double think” and “cynicism” question motives. Here we are dealing with the actions of a professional man. Paull J. accepted the plaintiffs’ sincerity and the court should give very great consideration to what he found. Insincerity imports deliberate concealment. The expression “willy-nilly” suggests charging ahead regardless of what other people think.

As a result of Lewis’ case,4 a plaintiff is perfectly entitled to select the meanings on which he will rely and to disclaim other meanings from the ordinary and natural meanings. As a result of Plato Films Ltd. v. Speidel,5 the defendant is entitled to plead partial justification whatever the plaintiff may plead. [Reference was made to the Land Registration Act, 1925, s. 72 and the Land Registration Rules, rr. 251, 255.]

In a case tried by a judge alone, the judge fulfils the role of both judge and jury and decides what the words in fact mean and what they are capable of meaning. In a jury action, it is for the judge to rule what they are capable of meaning. A jury’s findings of fact are sacrosanct. Lewis v. Daily Telegraph Ltd.6 lays down the range of possible meanings of the words used, and at the top of the scale is the most damaging meaning which the words could reasonably bear to the persons to whom they were published, assuming that they were reasonable people. Where a judge is sitting alone, the position of the Court of Appeal is exactly the same as if there was a jury. Libel actions stand in a different position in this respect to personal injury cases. The question for the jury is, assuming that the reader is a reasonable man, what do the words mean?: see Hopwood v. Muirson.7 In Hough v. London Express Newspaper Ltd.,8 Goddard L.J.

4 [1964] A.C. 234.
5 [1961] A.C. 1090; [1961] 2 W.L.R. 470; [1961] 1 All E.R. 876, H.L.(E.)
6 [1964] A.C. 234.
7 [1945] K.B. 313; 61 T.L.R. 312; [1945] 1 All E.R. 453, C.A.
8 [1940] 2 K.B. 507; 56 T.L.R. 758; [1940] 3 All E.R. 31, C.A.

[*163] was saying9 that subject to one exception a judge was equivalent to a jury, and see also Byrne v. Deane.10

On the allied question of whether the words are capable of referring to the plaintiff, Knuppfer v. London Express Newspapers Ltd.11 which is binding on the court, lays down the doctrine of class.

This court can only decide whether the words complained of are capable of the defamatory meaning which the judge found. If the words are capable of that meaning, this court is bound by the meaning found by the judge. Where the judge’s findings of fact depend on his evaluation of the credibility of witnesses, the court will not normally interfere with his findings, although it may do so.

When one comes to libel, the test whether the words are capable of a defamatory meaning is, what range of meanings can the words bear? All meanings within that range satisfy the test of reasonableness. The question then is, what do they actually mean? What the judge is doing is interpreting the actual meaning by putting himself in the shoes of the reasonable man. This court is saddled with the decision in Lewis’ case12 that there is a range of meaning and out of that range, any finding cannot be upset. As with a jury, so with a judge alone, it is desirable that there should be finality in picking the meaning within the zone of reasonableness. If a judge’s decision is within the zone of reasonableness, as in the case of assessment of damages, the judge’s decision should be final.

To some extent Dingle v. Associated Newspapers Ltd.13 shows that it is the policy of the law to assimilate the role of a judge sitting alone in a libel case with the role of the jury. In the House of Lords in that case,13 the judge alone was put in the same position as the jury. This court could not hold that Paull J.’s finding was outside the zone of capability. Where there is a permissible range, as in damages, this court would not interfere where the finding is within that range.

As to damages; it was a straightforward compensatory award with no punitive element. [The court did not require further argument as to damages.]

Sir Peter Rawlinson Q.C. in reply. The powers of this court

9 [1940] 2 K.B. 507, 516.
10 [1937] 1 K.B. 818; 53 T.L.R. 469; [1937] 2 All E.R. 204, C.A.
11 [1943] K.B. 80; [1944] A.C. 116, 60 T.L.R. 310; [1944] 1 All E.R. 495, H.L.
12 [1964] A.C. 234.
13 [1964] A.C. 371; [1962] 3 W.L.R. 229; [1962] 2 All E.R. 737, H.L.(E.)

[*164] are set out in Benmax v. Austin Motor Co. Ltd.14 The position is the same in a libel action. Damages is a matter of quantum which is a very special matter very different to the present case. This is a question of liability and not of quantum of damages. It is as open to this court as to the judge to decide what is the meaning of the words in the letters. It is pre-eminently a case for this court to look at the meaning. The defendants’ submissions were always based on inconsistency, that Mr. Slim had changed over to the other side. The letters were published in the correspondence columns of the newspaper. It was a robust correspondence. It is a case where the first impression of the meaning of the words used may be the right one. The expression “Double Think” epitomises the letter of March 30, 1964. The basic meaning of “double think” is “just like a lawyer.”

Cur. adv. vult.

January 17, 1968. The following judgments were read.

LORD DENNING M.R.: Mr. Slim is a solicitor. For many years he was town clerk of Hammersmith but he retired in 1958. On January 1, 1959, he became legal adviser to Vitamins Ltd., who have a factory in Hammersmith. Mr. Graves is the chairman of Vitamins Ltd.

Upper Mall is a narrow way in Hammersmith by the river Thames. It has several private houses alongside it but at one point it passes the factory of Vitamins Ltd. Its width along this stretch is only 9 ft. or 10 ft. The public have a right of way along it on foot, but not with vehicles. Some years ago the Hammersmith Council put up a notice forbidding people to cycle along it. It was signed by Mr. Slim as town clerk. Later on it was replaced by a simple notice: “No cycling.”

Vitamins Ltd. assert that they have used this stretch of Upper Mall as an access for their vehicles to their factory. Mr. Slim, as their legal adviser, has been trying to establish that they have a legal right of way for vehicles along it. Many of the local residents deny that they have any such right. One of the local papers saw a spokesman for the firm and published this report: “He would not say whether his firm intended to use the road for heavy vehicles to and from the factory.”

At this point Mr. John Herbert, who has lived nearby in Hammersmith for many years, wrote to the “Daily Telegraph” a

14 [1955] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326, H.L.

[*165] letter which they published on March 30, 1964. Mr. Slim complains that it is a libel on him:

“DOUBLE THINK.

Sir—

Rotherhithe is not the only part of London’s riverside which is in danger of losing some of its most pleasant features.

Upstream at Hammersmith the peace of Upper Mall is threatened by a claim of Vitamins Ltd., a factory nearby, to the vehicular right of way. If this is approved, this narrow stretch of the riverside with its period houses may become a thoroughfare for heavy lorries and a dangerous place for a walk.

This is not a parochial matter, for the charm of Upper Mall is enjoyed by people from all over London. Its special character is already recognised. Section 30 of the London County Council (General Purposes) Act, 1953, prohibits the driving and parking of cars on Upper Mall, but this it seems is not sufficient protection.

The local council are still pondering on the firm’s claim, but what gives cause for concern is that already at the western end of Upper Mall a council notice forbidding even cycling has been removed. If this has made local residents a little cynical, they must be forgiven.

For many years this notice was signed by one Horace Slim, the reigning town clerk. It is now the same Mr. Slim, as legal adviser to Vitamins Ltd., who claims the right to drive lorries along this very path.

Yours faithfully,

John Herbert.

London, W.6.”

Following that letter, other residents wrote to the “Daily Telegraph” objecting to the use of this walk by lorries and commercial vehicles. In reply, Mr. Graves, the chairman of Vitamins Ltd., wrote a letter to the “Daily Telegraph” which they published on April 14, 1964:

“DOUBLE THINK.

Sir—

In recent weeks my company has been accused of an intention to use its right of way to the south of Linden House in Upper Mall, Hammersmith, for purposes of lorry access.

My company has never had such an intention, nor has this ever been its practice, as all those inquiring of it have been informed.

We therefore associate ourselves with the general sentiments expressed in recent correspondence; but we regret that we should have been wrongfully and recklessly implicated by, inter alia, neighbours who have not had the courtesy to discover our intentions before rushing into print. [*166]

I would further point out that the only lorries using its right of way are:—

1. Those of the Hammersmith Borough Council engaged in construction work: and

2. Those regularly delivering beer, and no doubt other supplies, to the Corinthian Yacht Club.

At no time during the past 30-odd years has my company in any way abused its privileges of right of way at the point concerned. On the contrary, through repeated efforts to obtain planning permission to rebuild on its freehold site, it has sought vastly to improve riverside facilities and appearance, and has offered all facilities for extension of the riverside walk.

Yours faithfully,

H. C. H. Graves,

Chairman, Vitamins Ltd.

London, W.6.”

It is to be noticed that in that letter Mr. Graves disclaims any intention to use lorries, but he does not mention other commercial vehicles. This provoked Mr. Herbert to reply in a letter which they published on April 23, 1964. Mr. Graves and Vitamins Ltd. complain that it is a libel on them:

“Right of Way Risks on the Riverside

Attitude of Company.

Sir—

Residents of Upper Mall, Hammersmith, and others who use it as a riverside walk will be pleased to hear Mr. H. C. H. Graves’s news that Vitamins Ltd. do not intend to use it as a right of way for their lorries. His protestations of injured innocence would be more convincing, however, if his company was really acting in the spirit of his letter.

Cars belonging to his employees are already being driven along the western end of Upper Mall, and in particular that part which has been for pedestrians only for 50 years – there is still in fact a council ‘No cycling’ notice. Residents of Upper Mall who have protested have been told by the drivers that the land belongs to Vitamins Ltd. and that they must move their cars from in front of their houses if those belonging to the company’s employees cannot get past.

It is not surprising, therefore, that no-one has asked what the intentions of the company were because they were obvious: to establish the vehicular right of way in front of the London Corinthian Sailing Club willy-nilly, without even waiting for a decision from Hammersmith Borough Council.

It need hardly be said that the use of cars on this narrow pathway is just as much to be deplored as that of lorries. How can Mr. Graves pretend to associate himself with the sentiments of those who wish to preserve the character of [*167]

Upper Mall, let alone keep it safe as a riverside walk, when he countenances such action?

All he has to do to put everyone’s mind at rest is to tell his employees to desist from using Upper Mall as a thoroughfare.

Yours faithfully,

John Herbert.

London, W.6.”

On June 24, 1964, Mr. Slim, Vitamins Ltd. and Mr. Graves brought an action for libel against the “Daily Telegraph” and Mr. Herbert. To my mind the issue should have been a simple one. The letters were undoubtedly defamatory, but the matter was clearly one of public interest. The defendants were protected if the letters were fair comment. Otherwise they were liable.

So the simple issue should have been: Fair comment or not? But it became submerged in pleadings which covered 83 pages, in correspondence which filled 300 pages, in evidence which covered six days, in argument which covered two or three days, and a judgment which filled 35 pages. Eventually the judge tried to cut his way through it. He thought that the sole question was whether the words bore the meanings put upon them by the plaintiffs. And he held they did. He held that the letter of March 30, 1964, bore the imputation that Mr. Slim had brought improper pressure to bear on the council employees and was not fit to remain a solicitor. The judge awarded him £3,500. He held that the letter of April 23, 1964, bore the imputation that Mr. Graves, and, through him, Vitamins Ltd., were insincere and hypocritical: and also the company had been guilty of improper conduct by seeking to establish this right of way “willy-nilly.” He awarded Mr. Graves £1,500 and the company £500.

The reasoning by which the judge reached this conclusion can be best understood if I set it out in the form of a dialogue between the judge and counsel, greatly shortened:

Plaintiff’s counsel: The letter of March 30, 1964, in its natural and ordinary meaning, conveys two derogatory imputations against Mr. Slim. The first is that he was inconsistent (he is a man who runs with the hare and hunts with the hounds). The second is that he was dishonest (he is a man who went behind the scenes and used “back-door influence” with the employees of the Hammersmith Council). I do not complain, says counsel, of the first imputation of inconsistency. That is a fair comment to make on a matter which I agree is of public interest. But I do complain, [*168] Says counsel, of the imputation of dishonesty. That was not true and it was not a fair comment.

The judge (to plaintiff’s counsel): I think you are entitled to limit your complaint to the imputation of dishonesty. Then he turns to defendants’ counsel.

The judge (to defendants’ counsel): Do you suggest that Mr. Slim was in any way dishonest, such as using back-door influence or the like?

Defendants’ counsel: We do not suggest that Mr. Slim was guilty of any such conduct.

The judge: In those circumstances I think that the defences of justification and fair comment cannot arise. The sole question is whether the words bore the imputation of dishonesty. I ask myself as a lawyer: Were the words capable of bearing that imputation? My answer is: Yes. I ask myself as an ordinary reader of the “Daily Telegraph”: Did they in fact bear that imputation? My answer is: Yes. They imputed that he acted from dishonest motives, was insincere and acted in bad faith towards his former employers, the Hammersmith Corporation. I give judgment, therefore, for the plaintiff.

The judge applied like reasoning in the case of Mr. Graves and Vitamins Ltd. He held that the letter of April 23, 1964, imputed that Mr. Graves and the company were guilty of insincerity and hypocrisy: and that, as counsel for the defendants did not suggest they were guilty of such conduct, there was no defence to their claim for damages for that imputation. As to the word “willy-nilly,” that imputed that the company was guilty of arrogant conduct which was not justified; but this only called for quite small damages.

I find myself unable to agree with the judge’s reasoning.

In the first place, I think that, when a plaintiff complains of the words in their natural and ordinary meaning, he must accept that meaning as it is with all the derogatory imputations that it conveys. He cannot select some of the imputations and reject others as he pleases. The reason is because, when he complains of libel, he complains of the injury which the words do to his reputation in the minds of the ordinary reader. Now the ordinary reader takes the imputations as a whole. He does not divide them up into bits. Nor should the plaintiff be able to do so. It is not a case where he is relying on any other defamatory sense, such as to require particulars under R.S.C., Ord. 19, r. 6 (2), now R.S.C. (Rev. 1965), Ord. 82, r. 3 (1). He is relying on the natural [*169] and ordinary meaning of the words. In such case the customary form of pleading has been for the pleader to say: “The said words meant and were understood to mean” so and so, setting out all the derogatory imputations that he can think of. Such has always been the practice to my certain knowledge. The pleader in my time at the Bar never tried to select some of the imputations and reject others: and I do not think he should be allowed to do so now. I find nothing in Lewis v. Daily Telegraph Ltd.1 to warrant it. When the defendant comes to plead his defence, he cannot select some of the imputations and reject others. If he justifies, he pleads in the customary form: “The said words in their natural and ordinary meaning were true in substance and in fact” without specifying any particular imputations. So we see that, in the customary form of pleading, neither plaintiff nor defendant is allowed to make selections of some of the derogatory imputations. Each must accept the words as conveying all such imputations as the jury think they bear: and make his claim or defence accordingly. Only in this way can we avoid the complications which have disfigured this case.

In the second place, I think that the judge placed too much weight on his question to the defendants’ counsel: “Do you suggest that the plaintiffs were dishonest, insincere or hypocritical?” and counsel’s answer: “No, we do not suggest it.” That answer showed only that the defendants were not attempting to justify any such imputations. But it did not destroy the defence of fair comment. Even if the words did convey the imputation, by way of comment, that the plaintiffs’ conduct was dishonest, insincere or hypocritical, the defence of fair comment was still available.

I think the correct approach is simply this: Were these letters fair comment on a matter of public interest? The company, Vitamins Ltd., claimed that they had a right of way for vehicles along Upper Mall. That was a matter of public interest. So also was the conduct of their officers in regard thereto. That is conceded. The defendants were, therefore, entitled to make any fair comment upon it. The letters contained a recital of facts which were virtually undisputed. At any rate, no serious complaint was made about the facts. The complaints which Mr. Hirst made were about the comments. In particular, he complained about the comments “Double Think” and “cynical” in the letter of March 30, 1964: and of the comments “protestations of

1 [1964] A.C. 234; [1963] 2 W.L.R. 1063; [1963] 2 All L.R. 151, H.L.(E.)

[*170] injured innocence” and “How can Mr. Graves pretend to associate himself?” in the letter of April 23, 1964. These comments are capable of various meanings. They may strike some readers in one way and others in another way. One person may read into them imputations of dishonesty, insincerity and hypocrisy (as the judge did). Another person may only read into them imputations of inconsistency and want of candour (as I would). But in considering a plea of fair comment, it is not correct to canvass all the various imputations which different readers may put upon the words. The important thing is to determine whether or not the writer was actuated by malice. If he was an honest man expressing his genuine opinion on a subject of public interest, then no matter that his words conveyed derogatory imputations: no matter that his opinion was wrong or exaggerated or prejudiced; and no matter that it was badly expressed so that other people read all sorts of innuendoes into it; nevertheless, he has a good defence of fair comment. His honesty is the cardinal test. He must honestly express his real view. So long as he does this, he has nothing to fear, even though other people may read more into it, see perLord Porter in Turner v. M.G.M. Pictures Ltd.2 and per Diplock J. in Silkin v. Beaverbrook Newspapers Ltd.3 I stress this because the right of fair comment is one of the essential elements which go to make up our freedom of speech. We must ever maintain this right intact. It must not be whittled down by legal refinements. When a citizen is troubled by things going wrong, he should be free to “write to the newspaper”: and the newspaper should be free to publish his letter. It is often the only way to get things put right. The matter must, of course, be one of public interest. The writer must get his facts right: and he must honestly state his real opinion. But that being done, both he and the newspaper should be clear of any liability. They should not be deterred by fear of libel actions.

When I said to Mr. Hirst that I thought the real defence here was fair comment, he suggested that it was not based on true facts and it was actuated by malice. But he did not obtain any such finding from the judge: and in the absence of it, I am not prepared to accept the suggestion. Looking at the published correspondence, it seems to me that these were hard-hitting comments by both protagonists, of which neither can complain in a court of law. On the face of these letters, I think that the

2 (1950) 66 T.L.R. (Pt. 1) 342, 354; [1950] 1 All E.R. 449, H.L.
3 [1958] 1 W.L.R. 743, 745; [1958] 2 All E.R. 516.

[*171] comments made by Mr. Herbert and the “Daily Telegraph” were fair comments on a matter of public interest. They honestly said what they thought. Even if the words did impute dishonesty, insincerity and hypocrisy (which I do not think they did), nevertheless the writers were expressing their honest opinion. And that is enough to clear them of any liability.

As to the word “willy-nilly,” it only means that the company intended to establish their right of way, whether other people were willing or unwilling. If that was a statement of fact, it was perfectly true. If it was a comment, it was perfectly fair. The company cannot complain of it.

I would allow the appeal and enter judgment for the defendants.

DIPLOCK L.J. In the spring of 1964 two short letters appeared in the correspondence columns of the “Daily Telegraph.” Written by Mr. Herbert, they formed part of a robust though desultory controversy about the prospective use by motor vehicles of a public footpath forming part of Upper Mall in Hammersmith. Neither letter can have taken a literate reader of that newspaper more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference about the plaintiffs’ characters or conduct which he might have drawn from what he read would have been one of first impression. Yet in this court three lords justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters. If this protracted exercise in logical positivism has resulted in our reaching a conclusion as to the meaning of either letter different from the first impression which we formed on reading it, the conclusion reached is unlikely to reflect the impression of the plaintiffs’ character or conduct which was actually formed by those who read the letters in their morning newspaper in 1964.

Nevertheless, the artificial and archaic character of the tort of libel makes the exercise necessary in this appeal, even though in the end we return to the first impression with which we began. Libel is concerned with the meaning of words. Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another. The same words may be understood by one man in a different meaning from that in which they are understood by another and both meanings may be different from that which the author of the words intended to convey. But the notion that the same words [*172] should bear different meanings to different men and that more than one meaning should be “right” conflicts with the whole training of a lawyer. Words are the tools of his trade. He uses them to define legal rights and duties. They do not achieve that purpose unless there can be attributed to them a single meaning as the “right” meaning. And so the argument between lawyers as to the meaning of words starts with the unexpressed major premise that any particular combination of words has one meaning which is not necessarily the same as that intended by him who published them or understood by any of those who read them but is capable of ascertainment as being the “right” meaning by the adjudicator to whom the law confides the responsibility of determining it.

That is what makes the meaning ascribed to words for the purposes of the tort of libel so artificial. In the present appeal, although legal innuendoes (see Lewis v. Daily Telegraph Ltd.4 have been pleaded, no reliance has been placed in the argument upon them. The whole discussion has been about the “natural and ordinary meaning” of the words used in the letters. What is the “natural and ordinary meaning” of words for the purposes of the law of libel? One can start by saying that the meaning intended to be conveyed by the publisher of the words is irrelevant. However evil the imputation upon the plaintiff’s character or conduct he intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of the words, they did not bear any defamatory meaning. However innocent an impression of the plaintiff’s character or conduct the publisher of the words intended to communicate, it does not matter if, in the opinion of the adjudicator upon the meaning of words, they did bear a defamatory meaning. This would be rational enough if the purpose of the law of libel were to afford compensation to the citizen for the unjustifiable injury to his reputation actually caused by the publication of the words to those to whom they were communicated. But although in assessing damages the courts now accept this as the purpose of the civil action (see Rookes v. Barnard5 and McCarey v. Associated Newspapers Ltd. (No. 2)6, we refuse to accept its logical corollary that the relevant question in determining liability for libel is: “What did those to whom the words were published actually understand them to

4 [1964] A.C. 234.
5 [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E.).
6 [1965] 2 Q.B. 86; [1965] 2 W.L.R. 45; [1964] 3 All E.R. 947, C.A.

[*173] mean?” The best evidence of that would be the evidence of the persons to whom the words were actually published. Yet, save in exceptional cases where a “legal” innuendo is relied on, it is not even permitted to ask a witness to whom the words were published: “What did you understand them to mean?” What he did actually understand them to mean does not matter. This too might be rationalised on the ground that the publisher of the words ought to be responsible in law only for the injury caused to the plaintiff’s reputation by those defamatory inferences which a reasonable man might draw from the words published, and the witness to whom the words were published may not have been reasonable in drawing the defamatory inferences which he in fact drew. But this rationalisation breaks down once it is conceded, as it has been by the House of Lords in Lewis v. Daily Telegraph,7 that one man might be reasonable in drawing one defamatory inference from the words and another man might be reasonable in drawing another defamatory inference. Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicators at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is “the natural and ordinary meaning” of words in an action for libel.

The adjudicator, whose opinion as to the meaning of words is decisive for the purposes of libel, used to be the judge, and he was accustomed to the techniques of construction which lawyers employ to ascertain the “right” meaning of words. But Fox’s Libel Act in 1792 was to alter that. The Act itself dealt only with criminal libels in which the issue as to the meaning of words was less complex than in civil actions. In a criminal prosecution all that was necessary to determine was whether the words bore any meaning defamatory of the persons to whom they referred. It was not necessary to distinguish between one defamatory meaning and another. And so the effect of Fox’s Act, which made the jury the adjudicators as to the meaning of words, could be accurately described as: “Libel or no libel is a question for the jury.” A consequence of Fox’s Act, however, was that the

7 [1964] A.C. 234.

[*174] courts in course of time transferred from judge to jury the function of acting as adjudicator as to the meaning of words in civil actions for libel as well as in criminal prosecutions. But in this as in other forms of civil action, the jury as adjudicators were subject to judicial control. If the jury’s decision as to the meaning of words could be demonstrated to be perverse, as for instance where the court was of opinion that no twelve reasonable men could have ascribed any defamatory meaning to the words, the court could set aside the verdict; or if a particular defamatory meaning submitted to the jury by the plaintiff as being the “right” meaning was one which, in the judge’s opinion, it would be perverse of the jury to accept, he could rule that the words were not capable of bearing that meaning and direct the jury to reject it (Lewis v. Daily Telegraph Ltd.7.

The exercise of this kind of control over juries in libel actions involved acknowledging that different men would not be unreasonable in ascribing different meanings to the same words. Hence the distinction between defamatory meanings which words are capable of bearing and the particular defamatory meaning which, for the purposes of the tort of libel, they bear. The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact. But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of deciding upon one of those meanings as being the only “natural and ordinary meaning” of the words. Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the “right” meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single “natural and ordinary meaning” which is “right,” survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel.

But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single “right” meaning as

7 [1964] A.C. 234.

[*175] “the natural and ordinary meaning” of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of the one “right” meaning which they do bear disappears. It would be carrying artificiality too far, even for the law of libel, to suggest that a judge sitting alone must approach the issue as to the natural and ordinary meaning of the words complained of by asking himself not only the question: “What is the natural and ordinary meaning in which the words would be understood by reasonable men to whom they were published?” but also the further question: “Could reasonable men understand them as bearing that meaning?” Nevertheless Paull J. in the present case did ask himself both questions and, not surprisingly, answered the second question: “Yes.” It has been submitted that in this court, although we can examine his answer to the second question, we are bound by his answer to the first question because that would have been a question for the jury in a jury trial.

That the judge could plausibly pose himself the second and supererogatory question at all resulted from a further technicality in the law of libel and the curious course which this particular case took at the trial. Any defamatory imputation upon the plaintiffs’ characters or conduct conveyed by the words was mainly, at any rate, dependent upon inferences which the readers would themselves draw from them. The plaintiffs, as they were entitled to do, chose to set out in their statement of claim the particular defamatory meaning which they contended was the natural and ordinary meaning of the words. Where this manner of pleading is adopted, the defamatory meaning so averred is treated at the trial as the most injurious meaning which the words are capable of bearing, and the plaintiff is, in effect, estopped from contending that the words do bear a more injurious meaning and claiming damages on that basis. But the averment does not of itself prevent the plaintiff from contending at the trial that even if the words do not bear the defamatory meaning alleged in the statement of claim to be the natural and ordinary meaning of the words, they nevertheless bear some other meaning less injurious to the plaintiff’s reputation but still defamatory of him, nor does it relieve the adjudicator of the duty of determining what is the right natural and ordinary meaning of the words, though nice questions may arise as to whether one meaning is more or less injurious than another. C’est pire qu’un crime c’est une faute.

[*176] Where an action for libel is tried by judge and jury, it is for the parties to submit to the jury their respective contentions as to what is the natural and ordinary meaning of the words complained of, whether or not the plaintiff’s contention as to the most injurious meaning has been stated in advance in his statement of claim. And it is for the judge to rule whether or not any particular defamatory meaning for which the plaintiff contends is one which the words are capable of bearing. The only effect of an allegation in the statement of claim as to the natural and ordinary meaning of the words is that the judge must direct the jury that it is not open to them to award damages upon the basis that the natural and ordinary meaning of the words is more injurious to the plaintiff’s reputation than the meaning alleged, although if they think that the words bear a meaning defamatory of the plaintiff which is either that alleged or is less injurious to the plaintiff’s reputation, they must assess damages on the basis of that natural and ordinary meaning which they think is the right one. But where a judge is sitting alone to try a libel action without a jury, the only questions he has to ask himself are: “Is the natural and ordinary meaning of the words that which is alleged in the statement of claim?” and: “If not, what, if any, less injurious defamatory meaning do they bear?”

In the present case, no doubt with the best of motives, the plaintiffs sought at the trial to limit the issues as to the natural and ordinary meaning of the words complained of to the single question of whether or not they bore the defamatory meaning alleged in the statement of claim. On the pleadings as they stood, the only way in which they could do this was by waiving any claim to damages for any less injurious meaning which the words bore, if they did not bear the meaning so alleged. The defendants did not dissent from this course being taken and I will assume that this was what was intended to be done. But the effect, however well-intentioned, was to add a further artificiality to the trial. The natural and ordinary meaning which the plaintiffs alleged the words bore was stated with great precision in the statement of claim. The defendants conceded that they could not justify the defamatory meaning so alleged, but did seek to justify the actual words complained of in what they, the defendants, contended was the natural and ordinary meaning of those words – a meaning which, incidentally, the rules of pleading prohibit the defendants from stating in their defence. So far so good if (which I must not [*177] be taken to accept) an action for libel can be converted into a game of skill in which the contestants choose their own rules and the court is content to apply those rules as umpire. But at least the umpire must be quite clear what the chosen rules are and must apply them consistently. As I read his judgment, the judge did not succeed in doing that. In the important passage of his judgment in which he says that “no question of justification can arise,” he accepts that the only issue left to him (apart from damages) in this particular game of skill was whether the words in their natural and ordinary meaning bore the precise defamatory meaning alleged in the statement of claim, but he nevertheless goes on to consider what is a different issue, viz. whether the words bore a defamatory meaning which he expresses in a number of different phrases, all of them less precise than those used in the statement of claim, but which he apparently regarded as paraphrases of the relevant paragraphs of the statement of claim. To do so introduces into the proceedings a new complication about the meaning of words – this time not about the meaning of the words used in the alleged libel but about the meaning of the words used in the paragraph of the statement of claim to plead the defamatory meaning which the plaintiffs alleged was the natural and ordinary meaning of the words used in the alleged libel. Any paraphrase of that paragraph which was less precise than the actual words used in the paragraph could not bear the same meaning as the words themselves, and if the judge was going to depart in any way from what, on the true construction of the relevant paragraph of the statement of claim, was the precise meaning therein alleged to be that which the libel bore, he should also have gone on to consider whether the defence of justification or p fair comment was made out in respect of the words of the alleged libel in the meaning which he ultimately decided was their natural and ordinary meaning. But this he never did.

What then is this court to do? I do not think we need send it back for a retrial. No oral evidence given at the trial throws any light upon the natural and ordinary meaning of the words to readers of the correspondence columns in the “Daily Telegraph.” This court is in as good a position as the judge to determine what is the natural and ordinary meaning of the words, and in so far as any action for libel can be a simple case, I think that this one is.

What is said in the first letter about Mr. Slim is that when his client or employer was the Hammersmith Borough Council, [*178] he took action on their behalf to prevent vehicles, even bicycles, from using Upper Mall and that, now his client is Vitamins Ltd., he is taking action on their behalf to enable Upper Mall to be used by their vehicles. Well, so he was. There is nothing in that conduct which would lower him in the esteem of right-thinking lawyers. The professional duty of a lawyer is to express the views of his client, not his own personal views. That is one of the reasons why lawyers as a class have through the centuries been distrusted by laymen (cf., The Peasants’ Revolt 1381; Hopwood v. Muirson8. It makes laymen, to use Mr. Herbert’s mild phrase, “cynical” about lawyers, if indeed the cynicism expressed in his letter was directed to Mr. Slim’s conduct and not, as I think, to the borough council. The judge took the view that a reader of the letter would infer that Mr. Slim had used “backdoor influence” with the borough council to persuade them not to press their opposition to his clients’ intended use of Upper Mall. I do not find it easy to construe that phrase, which was the judge’s – not the plaintiffs’. Of course Mr. Slim had the advantage derived from his previous employment of knowing the officials of the council with whom he was talking or corresponding on behalf of his clients, and maybe the previous policy of the committees by whom the decisions would be recommended. He was no doubt in a better position than other solicitors might be to marshal the arguments for his client in a form most likely to persuade those to whom they were addressed. But there is nothing professionally improper in this. Indeed, it was Mr. Slim’s duty to his client to do so. I cannot read the letter as implying that Mr. Slim had done anything more than this. The worst that I can read into the letter is an expression of Mr. Herbert’s view, no doubt shared by many non-lawyers, that this is an undesirable practice. Even if to express that view could be defamatory of a lawyer, it is a perfectly fair comment on what was admittedly a matter of public interest.

As respects the second letter, there has been much discussion about the adverb “willy-nilly” and the verb “pretend.” For my part I cannot read the former expression in the context of the letter as meaning anything more than that the company were persisting in their policy despite opposition by the borough council and residents in Hammersmith. And so they were. As regards the verb “pretend,” it was used in reference to the claim made by Mr. Graves in a previous letter that his company was in

8 [1945] K.B. 313; 61 T.L.R. 312; [1945] 1 All E.R. 453, C.A.

[*179] general sympathy with the views which had been expressed by those who wanted to preserve Upper Mall exclusively for pedestrians. All that Mr. Herbert did in his reply was to draw attention, forcefully perhaps, to the inconsistency between this claim and the attempts that Mr. Graves and the company were admittedly making to secure and to enlarge the right of use of Upper Mall by cars belonging to their employees. Again this was fair comment.

It would be an evil day for free speech in this country if this kind of controversy on a matter of public though local interest were discouraged by the fear that every word written to be read in haste should be subjected in a court of law to minute linguistic analysis of the kind to which these letters have been subjected on this appeal. As the law of libel now stands, it is not easy to avoid it. In the result, in the present case I think we can decide this case in accordance with common sense and first impression by allowing the appeal. I venture to recommend once more the law of defamation as a fit topic for the attention of the Law Commission. It has passed beyond redemption by the courts.

SALMON L.J. Any attempt to rationalise the law of libel would have proved a daunting task even before 1964. Happily it is unnecessary to attempt it in the present case. The task would not perhaps have been made any easier by Lewis v. The Daily Telegraph,9 nor by Rookes v. Barnard,10 or McCarey v. Associated Newspapers.11 These cases may one day raise a number of intransigent problems to which it will then be necessary to try and find a solution. But the time is not yet. It seems to me that the principal question in the present case is as to whether or not the words complained of bear the meanings attributed to them by the plaintiffs.

The words complained of by Mr. Slim appeared in a letter from Mr. John Herbert in the issue of the “Daily Telegraph” for March 30, 1964. The words complained of by Vitamins Ltd. and by their chairman and managing director, Mr. Graves, appeared in another letter from Mr. John Herbert in the issue of the “Daily Telegraph” for April 23, 1964. These letters formed part of a spirited correspondence in that newspaper and in the local press concerning the use of a riverside walk called Upper Mall in Hammersmith. The peace and quiet charm of this place

9 [1964] A.C, 234.
10 [1964] A.C. 1129.
11 [1965] 2 Q.B. 86.

[*180] had been preserved and jealously guarded for many years by the borough council, the local residents and those members of the general public who resorted to it. According to them, the narrow part of Upper Mall had always been closed to vehicular traffic and even to bicycles. Vitamins Ltd., whilst professing their concern to preserve the amenities of the place, claimed the right to drive their vehicles, other than heavy lorries, along the whole of the walk, and proceeded to do so. Their premises are adjacent to Upper Mall. Mr. Slim had been Deputy Town Clerk of the Hammersmith Borough Council from 1928 to 1948, and Town Clerk from 1948 until his retirement in 1958. Thereafter he was engaged by Vitamins Ltd. as their legal adviser, chiefly in relation to their property interests in Hammersmith and the conduct of negotiations on their behalf with the borough council.

In his letter of March 30, 1964, which appeared under the title “Double Think”, Mr. Herbert wrote:

’ The local council are still pondering on the firm’s claim, but what gives cause for concern is that already at the western end of Upper Mall a council notice forbidding even cycling has been removed. If this has made local residents a little cynical, they may be forgiven. For many years this notice was signed by one Horace Slim, the reigning town clerk. It is now the same Mr. Slim, as legal adviser to Vitamins Ltd., who claims the right to drive lorries along this very path.”

The statement of claim alleged in effect that these words in their ordinary and natural meaning inferred that Mr. Slim had behaved with professional impropriety and in a dishonourable manner. Before the judge and in this court. Mr. Hirst has conceded that, unless the words do bear such a meaning. Mr. Slim must lose. He made it plain, to quote from the judge’s judgment, that “there was and is no question of his asking for damages if all that is established is that the letter meant that while acting honourably and in good faith, he has done something which could be criticised.” It is, therefore, unnecessary for me to pause to consider whether Mr. Slim, in spite of his pleading, might have sought to rely upon some other and less objectionable defamatory meaning. I am afraid that I cannot agree with the judge that the words complained of do bear the meaning which Mr. Slim attributes to them. I think that the ordinary reader of the “Daily Telegraph” would consider the words meant that when Mr. Slim was Town Clerk, he was the champion of one view about Upper Mall, and that when he became legal adviser to Vitamins Ltd., [*181] he became the champion of the opposite view. This, however, does not mean that he has been guilty of what anyone would regard as unprofessional or dishonourable behaviour. It is generally recognised that to do as he did is part of a lawyer’s normal duties – although no doubt it is regarded by some laymen with a certain degree of cynicism. Again the ordinary man on reading Mr. Herbert’s letter might conclude that Mr. Slim, through the many years he had served the borough council, would have gained great experience of the kind of arguments and considerations likely to appeal to them, that he would be persona grata with the council’s officers, and generally more favourably placed than a comparative stranger in negotiating with them. There would be no question of his applying any improper pressure or deviating by one iota from the path of strict rectitude, but, merely because he was who he was, he would have the best chance of persuading the council that his cause was just. No doubt this was as obvious to Vitamins Ltd. as it would have been to the ordinary reader of the “Daily Telegraph” – and may even have been a reason for their retaining him. The ordinary reader may have thought that in doing so, Vitamins Ltd. were seeking to obtain an unfair advantage over any other ratepayers with whom they might be in conflict. Indeed, the fact that Vitamins Ltd. did retain the ex-Town Clerk to advise them in their dealings with the borough council and to negotiate with the borough council on their behalf may well have caused local residents to be a little cynical, and even left a strange flavour in their mouths. But this does not raise a question of honour or professional propriety – only a question of taste. In my view, Mr. Herbert’s letter does not mean that Mr. Slim behaved unprofessionally or in any way dishonourably, and I would accordingly allow the appeal and enter judgment for the defendants in respect of that letter.

Mr. Herbert’s other letter, of which Vitamins Ltd. and Mr. Graves complain, was written in reply to a letter of Mr. Graves appearing in the issue of the “Daily Telegraph” for April 14, 1964. In that letter Mr. Graves denied that his company had any intention of using Upper Mall for the purpose of lorry access. He associated himself and his company with the sentiments of those anxious to preserve the peace and quiet and general amenities of Upper Mall; he also pointed out that his company had sought planning permission to rebuild and improve the riverside appearance and facilities, including an extension of the riverside walk. He expressed himself in fairly strong terms about having [*182] been, as he put it, “wrongfully and recklessly implicated by neighbours who have not had the courtesy to consult us before rushing into print.” In his letter in reply appearing in the issue of the “Daily Telegraph” for April 23, 1964, Mr. Herbert wrote: “(Mr. Graves’s) protestations of injured innocence would be more convincing … if his company was really acting in the spirit of his letter.” Mr. Herbert then went on to point out that cars belonging to the company or its employees were using Upper Mall as a thoroughfare including the narrow part which had been kept for pedestrians only for 50 years, and that cars on this narrow pathway were just as objectionable as lorries.

The letter also contained the following passage to which Mr. Graves and his company took exception:

“It is not surprising therefore that no-one has asked what the intentions of the company were because they were obvious: to establish the vehicular right of way in front of the London Corinthian Sailing Club willy-nilly, without even waiting for a decision from the Hammersmith Borough Council. … How can Mr. Graves pretend to associate himself with the sentiments of those who wish to preserve the character of Upper Mall, let alone keep it safe as a riverside walk, when he countenances such action?”

It seems to me that the words “willy-nilly” mean no more than that Vitamins Limited’s intention was to establish a vehicular right of way along Upper Mall whether the local residents or the borough council liked it or not. The local residents had made it very plain that they did not like it. So had the borough council by their Town Clerk’s letter to Mr. Slim of March 18, 1964, in which the Town Clerk wrote:

“Whilst your clients’ claim is still being investigated, it is not agreed that your clients have a right of way for vehicles over the passageway in front of Linden House. So far (apart from your client company) I have yet to find anyone who believes that this passageway is a carriageway as well as a footpath.”

The company’s internal correspondence makes it very plain that in spite of the opposition, they were using the way for their vehicles at least once a day and considered it important to continue to do so and to log the journeys in order to establish what they alleged were their existing rights. To my mind, the passage in Mr. Herbert’s letter stating that the company’s intention was to establish a vehicular right of way willy-nilly was fully justified and in any event was fair comment. [*183]

In the statement of claim, however, it is further alleged that Mr. Herbert’s second letter in its ordinary and natural meaning inferred that Mr. Graves in his letter written as chairman of Vitamins Ltd., to which I have already referred, was insincere and hypocritical in his statements concerning (a) his company’s intentions in relation to the use of Upper Mall by the company’s vehicles, and (b) the company’s wishes to improve the riverside facilities and appearance and to extend the riverside walk. In my view no such inferences can properly be drawn from Mr. Herbert’s letter. Indeed he impliedly accepts Mr. Graves’ expression of intention not to use Upper Mall for lorries, but points out that its use as a thoroughfare for other motor vehicles (which Mr. Graves admittedly intended) is just as objectionable. Nor does Mr. Herbert cast any doubt on the statement in Mr. Graves’ letter to the effect that his company’s intention, if planning permission could be obtained, was to rebuild on their freehold site and thereby improve the riverside facilities and appearance and enable the riverside walk to be extended.

Mr. Hirst, however, seeks to rely upon another inference from Mr. Herbert’s letter which has not been pleaded, namely, the inference that Mr. Graves was insincere and hypocritical in pretending to associate himself with the sentiments of those who wished to preserve the peace and quiet of the riverside walk, whilst he was at the same time seeking to use it as a thoroughfare for vehicular traffic. This raises the question as to whether Mr. Hirst is entitled to rely on such an inference having regard to the terms of his pleading. Words may be defamatory in their ordinary and natural meaning. They may also, or in the alternative, bear a defamatory innuendo. A “true” or “legal” innuendo is a meaning which is different from the ordinary and natural meaning of the words, and defamatory because of special facts and circumstances known to those to whom the words are published. The ordinary meaning and the innuendo give rise to different causes of action, and, accordingly, must be separately pleaded – Sim v. Stretch.12 Words in their ordinary and natural meaning may be defamatory because of what they say expressly, e.g., “A. is a thief”; or because of what they imply to the ordinary sensible man without knowledge of any special circumstances. For many years prior to 1949 it was most unusual to see a statement of claim which did not purport to plead an innuendo. This would either be a “true” innuendo or the ordinary meaning to be

12 (1936) 52 T.L.R. 669; [1936] 2 All E.R. 1237, H.L.

[*184] naturally inferred from the words, or both a “true” innuendo and a natural inference jumbled up together in the same paragraph. Innuendoes were also commonly pleaded even when the words complained of were as plain as could be, e.g.: “X. is a fraudulent scoundrel,” or: “Y. is a prostitute”, in such cases an innuendo was, of course, unnecessary and indeed absurd. This practice, however, although untidy and sometimes ridiculous, did little harm. It, at any rate, helped the defendant by forewarning him of the meaning which the plaintiff would seek to attribute to the words at the trial. Then in 1949 came a new rule, R.S.C., Ord. 19, r. 6 (2) (now R.S.C. (Rev. 1965), Ord. 82, r. 3 (1)), which provided that where

“… the plaintiff alleges that the words … 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 such sense.”

Although to some extent the old practice lingered on, between 1949 and 1964 there were many cases in which plaintiffs, who relied alone upon the natural meaning of the words complained of, did not in their statement of claims set out the inferences which at the trial they intended to allege that the words bore. Thus defendants were sometimes left in the dark and the administration of justice was somewhat impeded.

It was, I think, in order to overcome this difficulty that Lord Devlin stated in Lewis v. Daily Telegraph Ltd.13 that it would be desirable for the statement of claim to contain a separate paragraph setting out “those … indirect meanings which go beyond the literal meaning of the words but which the pleader claims to be inherent in them.” The whole House agreed that it was permissible for the statement of claim to contain such a paragraph but forbore to rule whether it was necessary for it to do so. That point, as I understand Lord Devlin’s speech, was left open.14 Lord Devlin’s observations15 may have been obiter but they carry very great weight and are of the highest persuasive authority. It is not surprising that Mr. Hirst accepted them in drawing the statement of claim in the present case. Indeed, he could hardly have done otherwise, having regard to the warning that the House of Lords might rule that it was necessary for him to do so. If it should turn out to be necessary, presumably the plaintiff would be precluded from seeking to set up at the trial any indirect meaning, or

13 [1964] A.C. 234, 280.
14 Ibid. 282.
15 Ibid. 280.

[*185] inference which he had failed to plead. Supposing, however, that it is not necessary for the indirect meanings or inferences to be alleged in the statement of claim but that nevertheless the plaintiff (as here) has chosen to allege them, is he to be confined to those meanings or may he rely upon some entirely different meaning at the trial? Without committing myself to any concluded view, I am inclined to think that the plaintiff is bound by his pleading – otherwise it may prove to be nothing but a snare for the defendant. I do not mean, of course, that the plaintiff is strictly confined to the very shade or nuance of meaning which he has pleaded but what he sets up at the trial must come broadly within the meaning he has pleaded. Nor do I think that, without any amendment of his statement of claim, it would be permissible for him to set up any entirely different meaning, even if it were less injurious to the plaintiff than the meaning pleaded. It is often difficult to decide which of two defamatory meanings is the more injurious. If there were a jury, how and by whom would the question be decided? Moreover, even if one meaning were somewhat less injurious than another, it might still be very injurious indeed, and the defendant might have had no real chance of preparing his defence to meet it. After all, there may be many opinions as to what inference words bear. It would be unfair to expect the defendant to guess which meaning or meanings the plaintiff intends to attribute to them. He might guess wrong and thus not only waste a great deal of time and money in raising a defence of justification or fair comment which would prove to be wholly irrelevant at the trial but he might also come to court wholly unprepared to meet the actual case sought to be made against him. Moreover, if the plaintiff relies on two different defamatory meanings, the defendant might wish to justify the one but not the other, and this, in my view, he is entitled to do.

It has been suggested in argument that this view of the pleading point might in some way prejudice the defendants because it would preclude them from justifying a meaning upon which the plaintiff has not relied in his pleading. But if the plaintiff cannot recover damages in respect of such a meaning, no plea of justification in respect of it could be relevant. I can imagine a case in which the words bore two indirect defamatory meanings and the plaintiff chose to confine himself to the one because he was afraid of justification in respect of the other. But this manoeuvre could do him no good. The defendants may always invite the court to consider the words complained of in their context and can also [*186] serve a notice in diminution of damage. If the matters which could have been pleaded by way of justification of meaning B are not relevant by way of diminution of damage in respect of meaning A, then the fact that the plaintiff does not seek to recover damages in respect of meaning B, and that accordingly there has been no plea of justification in relation to it, cannot prejudice the defendant in respect of the claim founded on meaning A. If the matters which might have been relied upon in justification of meaning B (had it been pleaded) are relevant in diminution of damages in respect of meaning A, then those matters can be set out in the appropriate notice.

Accordingly, I incline to the view that on principle Mr. Graves and his company should be confined to the indirect meanings which in their statement of claim they attribute to Mr. Herbert’s second letter. And, as I have already indicated, I do not consider that it bears any of these meanings.

I do not think it necessary to reach any final view on the pleading point because even if the view I have provisionally formed is incorrect, Mr. Graves and his company would still fail. If they were entitled to rely upon the unpleaded indirect meaning to the effect that it is humbug for Mr. Graves to pretend or claim that he shares the sentiments of those who wish to preserve the peace of Upper Mall, whilst he asserts and purports to exercise the right to use it as a thoroughfare for his company’s vehicles, fair comment, if not justification, would on the evidence clearly be a complete answer to the claim. I would, therefore, also allow the appeal in respect of Mr. Herbert’s second letter.

There is one last point to which I must refer before parting with this case. It applies equally to the plaintiffs’ claim on both Mr. Herbert’s letters. Mr. Hirst contends that if the words of which the plaintiffs complain are capable of the defamatory meaning attributed to them, then this court has no more power to interfere with the judge’s findings as to the meaning of those words than it would have had to interfere with the findings of a jury. I cannot accept this argument. It is unsupported by any direct authority, although it is lent some colour by implication from the dicta of Goddard L.J. in Hough v. London Express Newspaper Ltd.16 No doubt, even when a libel action has been tried by a judge alone an appellate tribunal may sometimes approach the case by considering, as a matter of law, whether the words complained of are capable of the defamatory meaning which they have

16 [1940] 2 K.B. 507, 516; 56 T.L.R. 758; [1940] 3 All E.R. 31, C.A.

[*187] been found to bear. If they are, the appellate tribunal will not lightly interfere with the judge’s finding of fact. If, however, the appellate tribunal is satisfied that the judge’s finding of fact is wrong, it is its duty to reverse him. There is no sensible reason why a judge’s finding of fact in a libel action should be more sacrosanct than in any other action. For the reasons I have indicated, I am as satisfied as I can be that the judge’s decision was wrong. I say “as I can be” because I am very conscious of the difficulty which a judge faces in trying to ascertain the meaning which the ordinary layman would attribute to words which he reads in his newspaper. Much of a judge’s time is spent in construing statutes and legal documents – an apparently similar task to the one which now confronts us, but a task which, in reality, requires a different technique. There have been many differences of judicial opinion even on the question of what words are capable of meaning to the ordinary layman, see, e.g., Lewis v. Daily Telegraph Ltd.17 The principles are easy to formulate but difficult to apply. They were never better formulated than they were in Capital and Counties Bank v. Henty18 nor perhaps ever worse applied. It was there held that the words complained of were incapable of meaning to ordinary men that the bank was in financial difficulties, yet they caused a run on the bank whose customers, presumably, were ordinary men. If it is difficult to decide whether words are capable of a defamatory meaning, it is still more difficult to decide what they in fact are likely to mean to the ordinary layman. Conscious as I am of the difficulties involved and much as I respect the judge’s opinion, I have formed the clear view that Mr. Herbert’s letters do not bear the meanings which the plaintiffs attribute to them.

Accordingly, as I have already indicated, I would allow the appeal and order judgment to be entered for the defendants.

Appeal allowed. Judgment for defendants with costs in Court of Appeal and below.

Leave to appeal to House of Lords refused.

17 [1964] A.C. 234.
18 (1882) 7 App.Cas. 741, H.L.