Shendish Manor Limited v Coleman

Where defamatory words do not identify a claimant, reference requires both actual understanding by a publishee and objective capability of being understood as referring to that claimant by an ordinary, sensible person possessing relevant extrinsic facts. Evidence must show a realistic prospect of establishing the necessary understanding when summary disposal is sought.

Republication is actionable only where the further publication is sufficiently connected and foreseeable. Speculative inferences from unrelated planning decisions should not enlarge a defamation trial. Exemplary damages against a local councillor require an abuse of governmental power, not merely an attempt to influence its exercise. Aggravated damages remain compensatory and may reflect malice or the conduct of the case where evidence supports additional injury to feelings.

Shendish Manor Limited and Mr Thornberry brought related slander claims concerning alleged statements by the respondent, a local council leader, describing Mr Thornberry as a crook. Morland J struck out the company’s claim because the evidence did not show that the publishees understood the words to refer to the company. He also struck out parts of Mr Thornberry’s claims concerning republication, exemplary damages and aggravated damages.

The Court of Appeal considered the company’s reference case, proposed fresh evidence, alleged republications, exemplary damages, aggravated damages and the admissibility of witness-statement passages.

1. Company’s claim. The appeal by Shendish Manor Limited was dismissed. Where words do not identify a corporate claimant, the claimant must establish that at least one publishee actually understood them to refer to the company and that an ordinary, sensible person possessing the relevant extrinsic facts could reasonably have understood them in that way. The witness statements showed knowledge of Mr Thornberry’s connection with Shendish Manor, but did not show that either publishee understood the words to refer to the company. The alleged references to Mr Thornberry as a crook were also not objectively capable of referring to the corporate body.
2. The court refused fresh evidence from the two publishees. Under CPR Part 52.11(2)(b), the appeal court’s discretion had to serve the overriding objective. The evidence was produced very late, by the same witnesses, without explanation, and could reasonably have been obtained earlier. The familiar considerations in Ladd v Marshall [1954] 1 WLR 1489 remained relevant.
3. “Making a fast buck” did not convey the pleaded meaning that Mr Thornberry had committed, or was capable of committing, a dishonest or criminal offence. A further publication to a former councillor more than a year later, in circumstances unconnected with current council work, was too remote to be a natural and probable consequence of the original publication. Speculative reliance on the council’s later planning decisions was rightly struck out as requiring detailed inquiry into peripheral matters.
4. Exemplary damages were unavailable on the pleaded facts. The first category in Rookes v Barnard [1964] AC 1129 can extend to local government officials, as recognised in Broome v Cassell [1972] AC 1027, but requires an abuse of governmental power. Seeking to influence the council’s future exercise of power was not itself the exercise or abuse of power.
5. The appeal was allowed in part on aggravated damages. Such damages are compensatory and may reflect additional injury to feelings caused by malevolence, spite or the conduct of the case. The evidence that Mr Thornberry was outraged was sufficient to support the pleaded allegation that the words were uttered maliciously or without belief in their truth. The parties were to agree which witness-statement passages remained relevant; unresolved matters were left to the trial judge.

• Court of Appeal (Civil Division): Allowed Mr Thornberry’s appeal to the limited extent relating to aggravated damages; dismissed the company’s appeal and the renewed applications for permission to appeal.
• High Court of Justice, Queen’s Bench Division: Morland J’s decisions of 10 May 2001 struck out the company’s claim and parts of Mr Thornberry’s claims.