Tanner v Blueprint Books Ltd & Anor

A settlement agreement is construed objectively, by reference to the language used and the background reasonably available to the parties when the agreement was made. Where a term is ambiguous, the court may adopt the meaning that best gives effect to the purpose of the compromise. The word “article” in an undertaking concerning publication may therefore include readers’ letters, notices and advertisements where the dispute and surrounding circumstances show that a wider, all-encompassing restraint was intended. The construction does not extend to bona fide classified advertisements placed by members of the public offering the claimant’s products for sale or exchange.

The claimant appealed from Gray J’s decision in proceedings for malicious falsehood against the publishers of a competing kit-car magazine and its director. The first-instance judge held that the parties had concluded a binding compromise, including mutual undertakings not to publish articles concerning one another or their products, but considered that “article” did not include readers’ letters, notices or advertisements. The claimant challenged that construction and the defendants sought to adduce additional attendance notes. The central issues were the admissibility of fresh evidence and the proper objective construction of the settlement terms.

1. Fresh evidence. The defendants’ application to adduce further attendance notes was refused. The reasons given for their omission from the trial bundle fell short of the requirements stated in Ladd v Marshall [1954] 1 WLR 1489 at 1491, which remained persuasive after the introduction of the Civil Procedure Rules.
2. Existence and terms of the compromise. The court did not disturb the judge’s conclusion that the parties had concluded a compromise in the terms of the Schedule to the consent order. The appeal was therefore not allowed on the issue whether a binding settlement had been reached.
3. Objective construction. Having concluded that the consent order accurately represented the parties’ agreement, the judge’s task was to construe it objectively, excluding the parties’ individual subjective intentions. The meaning of an ambiguous word must be determined in the light of the background and circumstances reasonably available to the parties. The court applied the approach stated by Lord Hoffmann in Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896 at 913 and Mannai Investment Co Limited v Eagle Star Life Assurance Co Limited [1997] AC 749 at 775.
4. Meaning of “article”. The relevant background included the publication complained of, the wide injunction sought, and the defendants’ continuing campaign involving editorial material, readers’ letters and notices or advertisements. In that context, “article” was to receive a purposive and all-encompassing construction covering such material, absent words of limitation. The exception was bona fide classified or similar advertisements by members of the public offering the claimant’s products for sale or exchange.
5. The appeal was dismissed subject to the parties’ agreement concerning a possible declaration on the meaning of “article”. The application for a stay was refused. There was no order as to costs in the proceedings below or on appeal.

• Court of Appeal (Civil Division): The appeal was dismissed as to the existence and terms of the compromise, but allowed against the first-instance construction of “article”. The fresh-evidence application was refused.
• High Court, Queen’s Bench Division: Gray J held that a binding settlement had been concluded, but that “article” did not include readers’ letters, notices or advertisements.