Patterson v ICN Photonics Ltd.

An appellate court should be very reluctant to reverse an interlocutory ruling that words are capable of bearing a pleaded defamatory meaning. It must nevertheless intervene where the first-instance approach is clearly wrong or the conclusion is patently unsustainable.

Words concerning a product defame its manufacturer only if they are reasonably capable of imputing misconduct, incompetence or another personal failing to the manufacturer or its business. A statement that medical equipment requires supervision does not itself carry such an imputation. The court must reject any meaning obtainable only through a strained, forced or utterly unreasonable interpretation.

A manufacturer brought libel proceedings over a medical practitioner’s letter concerning its laser-treatment system. It later added a claim for slander of goods. Sir Oliver Popplewell held that the words could bear the pleaded defamatory meaning that the manufacturer knew the system required medical supervision but permitted, or failed to prevent, its unsupervised use.

The defendant appealed. The central issue was whether the letter could reasonably imply that the manufacturer bore responsibility for the system’s introduction or use without medical supervision. The parties agreed separately that the allegation that the product was “unsafe” should be removed from the slander-of-goods pleading.

1. Appeal allowed unanimously. Keene LJ gave the leading judgment. Rix and Schiemann LJJ agreed. Although an appellate court should be very reluctant to reverse an interlocutory ruling that words can bear a pleaded defamatory meaning, it remains responsible for intervening where the judge’s approach is clearly wrong or the conclusion is patently unsustainable.

2. The natural and ordinary meaning is the impression conveyed to an ordinary reasonable reader. Such a reader can read between the lines and engage in some loose thinking, but is neither unduly suspicious nor avid for scandal. A court must avoid over-elaborate or excessively literal analysis and reject a meaning which depends upon a strained, forced or utterly unreasonable interpretation.

3. Where words ostensibly concern a product, they must be capable of reflecting adversely upon the manufacturer or the conduct of its business. Mere disparagement of the product is insufficient. An imputation of incompetence in the conduct of the manufacturer’s business can be defamatory.

4. An assertion that invasive equipment requires medical supervision is not, without more, defamatory of its manufacturer. An allegation that the manufacturer was responsible for introducing or allowing the product to be used without necessary supervision could be defamatory. The letter, however, neither referred to the manufacturer nor attributed any action or responsibility to it. It instead identified the salon owner, the distributors and the health authority. The pleaded inference of manufacturer responsibility could arise only through a strained or unreasonable interpretation.

5. The libel claim could not proceed. The proceedings could continue as a slander-of-goods claim, with the agreed deletion of “unsafe and/or” from the amended pleading so that the relevant allegation stated only that the product “was ineffective”. The respondent was ordered to pay the appellant’s costs.

1. Court of Appeal (Civil Division): In [2003] EWCA Civ 343, the court unanimously allowed the defendant’s appeal. It held that the words could not bear the pleaded defamatory meaning and approved the agreed amendment to the slander-of-goods pleading.
2. High Court, Queen’s Bench Division: Sir Oliver Popplewell granted leave to amend the claim, rejected the defendant’s application concerning the libel claim and held that the words were capable of disparaging the goods. No citation is stated.