Cruise v Express Newspapers Plc

A publication must be read as a whole when deciding whether it is capable of a defamatory meaning. Where part of it is defamatory if read alone, an apparent refutation will ordinarily leave an issue for the jury. A judge may withdraw the issue only in the rare case where the antidote plainly extinguishes the bane.

A claimant may select one of several separate and distinct defamatory allegations for complaint. The defendant cannot justify, or plead fair comment about, another uncomplained-of sting merely because its words are textually intermingled with the words complained of or reproduced in the statement of claim. The decisive question is whether the allegations convey different imputations or share a common sting. That question is one of law suitable for interlocutory determination.

Two film actors brought a libel action concerning a newspaper magazine article which repeated rumours about their marriage, family life, honesty and association with Scientology. Popplewell J refused, under Order 82 rule 3A, to strike out all but one of the claimants’ pleaded meanings. He also struck out the defendants’ pleas of justification and fair comment concerning Scientology.

The defendants appealed, contending that the publication as a whole could not bear the pleaded meanings and that they could defend the separate Scientology allegation. The claimants cross-appealed against the removal of a meaning imputing arrogance. The central issues were the proper approach to bane and antidote, the defamatory capacity of the pleaded meanings, and whether a defendant may justify an uncomplained-of sting whose words are intermingled with the words complained of.

1. The defendants’ appeal was dismissed and the claimants’ cross-appeal was allowed unanimously. Brooke LJ delivered the judgment with which Stuart-Smith LJ and Sir John Knox agreed.

2. On an application under Order 82 rule 3A, meanings plainly incapable of being conveyed may be eliminated swiftly. Appellate interference is strongly discouraged, particularly where the judge has held that words are capable of bearing a pleaded meaning. The Court of Appeal should intervene only where the judge was plainly wrong.

3. The publication had to be considered as a whole. Where words are defamatory if read alone, it will only rarely be proper for a judge to rule that surrounding material has so clearly removed their sting that no issue remains for the jury. The judge had considered the alleged antidote and was entitled to conclude that it did not plainly extinguish the pleaded meanings.

4. The allegations concerning the marriage, children, investigators and trustworthiness were capable of bearing the pleaded defamatory meanings. The allegation that the second claimant arrogantly ordered builders to face a wall was also capable of lowering her in the estimation of others. That meaning was restored to the pleadings.

5. Modern defamation pleading requires a defendant relying on justification or fair comment to plead any different defamatory meaning forming the foundation of that defence. A claimant may select one of two or more separate and distinct defamatory allegations for complaint. The defendant cannot answer that allegation by proving the truth of another, uncomplained-of allegation.

6. This rule turns on the substance of the imputations, not textual severability or the form of the statement of claim. Inclusion of words conveying an uncomplained-of allegation does not entitle the defendant to justify it. The whole publication may still be placed before the jury as context. Whether allegations are separate and distinct depends on whether they have a common sting and is a question of law capable of interlocutory determination.

7. The alleged imputations concerning arrogance, the marriage and the claimants’ honesty were free-standing and distinct from any imputation arising from adherence to Scientology. Popplewell J therefore properly struck out the justification and fair-comment pleas concerning Scientology. The defendants’ appeal was dismissed with costs, and paragraph 4.1 of the statement of claim was restored.

1. Court of Appeal: The defendants’ appeal was dismissed and the claimants’ cross-appeal was allowed. The meaning imputing arrogance was restored, while the order striking out the justification and fair-comment pleas concerning Scientology was affirmed.

2. High Court, Queen’s Bench Division: Popplewell J refused under Order 82 rule 3A to strike out all but one of the claimants’ pleaded meanings. He struck out the meaning imputing arrogance and struck out paragraphs 6 and 7 of the defence.