McManus v Beckham

A person who slanders another may be liable for increased damage caused by a third party’s further publication. Liability requires proof that the defendant foresaw that further publication would probably occur, or that a reasonable person in the defendant’s position should have foreseen it, together with the resulting increase in damage.

An unauthorised repetition is prima facie an intervening act, but it does not invariably break the chain of causation. The controlling question is whether it is just to hold the original publisher responsible. A further publication may cause recoverable damage even though it repeats only part of the original defamatory sting.

The claimants alleged that the defendant entered their memorabilia shop and loudly accused them of selling items bearing fake autographs. They claimed that ensuing national and local press coverage caused a substantial loss of business.

His Honour Judge Previte QC, sitting as a High Court judge, struck out the paragraphs relying upon the press coverage and consequential loss. He held that most articles did not repeat the slander, that third-party publication broke the chain of causation, and that liability required knowledge that journalists were present or that a particular recipient would inform the media.

The claimants appealed. The central issue was whether they could rely upon the press coverage to establish damage flowing from the original slander.

1. Appeal allowed unanimously. Waller LJ held that the pleaded paragraphs concerning press coverage and consequential loss should be reinstated. Clarke LJ and Laws LJ agreed with his reasoning, conclusion and proposed direction to the jury.

2. The claim was brought upon the original publication, with the later publications relied upon as evidence of consequential damage. The judge therefore erred by asking whether the newspaper reports repeated the full defamatory sting as though they were separate causes of action. A publication of only part of the sting may cause damage flowing from the original slander. A report generated by asking the claimant what happened may also have the necessary causal connection.

3. An unauthorised repetition by an independent third party is prima facie a novus actus interveniens, but that principle is not an absolute rule. Whether the original publisher should bear responsibility depends upon the facts. The categories in which further publication may be taken into account are not rigidly closed.

4. Per Waller LJ, a jury could impose responsibility where the defendant actually appreciated that her words were likely to be reported and their sting repeated, in whole or in part. Responsibility could also arise where a reasonable person in her position should have appreciated a significant risk of repetition and resulting increased damage. Bare foreseeability, without attention to the reality and significance of the risk, could be too broad.

5. Laws LJ expressed the controlling inquiry as whether it was just to hold the defendant responsible for loss directly occasioned by the third party. Factual causation alone was insufficient. It had to be shown that the defendant foresaw that further publication would probably occur, or that the defendant or a reasonable person in her position should have foreseen it, together with the resulting increased damage. Laws LJ regarded this as conforming with Waller LJ’s proposed direction.

6. The claimants pleaded facts capable of satisfying that standard, including the defendant’s relationship with the media, the public manner and apparent purpose of the statements, and her alleged awareness that the incident and its defamatory sting would be reported. Difficulty of proof did not make the case impossible. Strike-out was a draconian remedy reserved for clear and obvious cases.

1. Court of Appeal: By [2002] EWCA Civ 939, unanimously allowed the claimants’ appeal and reinstated the paragraphs pleading press publication and consequential loss.
2. High Court, Queen’s Bench Division: His Honour Judge Previte QC, sitting as a High Court judge, struck out those paragraphs by judgment dated 28 November 2001. No citation is stated.