Clarke (t/a Elumina Iberica UK) v Bain & Anor

In a defamation claim, a publication is incapable of bearing an alleged meaning where that meaning would require an unduly suspicious reader to select a significantly more serious interpretation when a lesser meaning is available. Allegations of dishonesty require clear words and cannot be inferred merely from non-payment or contractual breach.

Evidence of other publications may support aggravated damages by showing malice or conduct increasing injury to feelings. The court may nevertheless exclude such evidence on case-management and proportionality grounds, particularly where the publications would create separate causes of action and substantially enlarge the trial.

The claimant brought libel proceedings concerning an internet press release, an e-mail, a letter sent to golf-course operators and statements made during an internet conference call. The defendants applied for jurisdictional rulings, meaning rulings under CPR Practice Direction 53 and strike-out orders. The claimant sought amendments, including reliance on the e-mail and other publications in aggravation of damages.

The court was required to determine whether the publications were capable of bearing the pleaded meanings, whether particular matters could be relied upon in aggravation of damages, and whether the proposed amendments were proportionate and procedurally permissible.

1. Meaning. The press release was incapable of bearing meanings alleging dishonesty. Breaches of a distribution agreement and non-payment could in principle involve dishonesty, but that was neither necessary nor sufficiently indicated by the words used. The press release was capable of conveying that the claimant had inexcusably failed to pay for goods and that he was involved in breaches attributed to the related parties, but the pleaded meanings required amendment.
2. The letter of 10 March 2008 was incapable of bearing a meaning that the claimant had deceived or misrepresented matters to customers. The relevant timing and wording would lead to that conclusion only for an unduly suspicious reader. The conference-call words were likewise incapable of bearing the pleaded meaning that the claimant had caused a business fiasco resulting in numerous proceedings.
3. Aggravated damages. Evidence of other defamatory publications may establish malice or conduct which increases injury to feelings, dignity or pride. Malice is not essential, but the pleading must make clear that the claimant relies on injury to feelings, not increased injury to reputation. A publication that itself discloses another cause of action may be met by any defence that would have applied had it been separately pleaded.
4. The court retained a case-management power to exclude otherwise admissible material. Applying the reasoning in Collins Stewart v FT [2006] EMLR 100, reliance on further publications would substantially enlarge and complicate the trial and was unlikely to produce a proportionate benefit. The relevant paragraphs were therefore struck out, and permission to insert the proposed paragraph concerning the Chung e-mail was refused.
5. The court did not need to determine the separate jurisdictional issue concerning foreign publications. It indicated that, on the facts, moving the Chung e-mail from a cause of action into the aggravation section would in any event have been impermissible.

The defendants’ applications succeeded in part. Paragraphs 18.2, 18.3 and 18.7 were struck out. The proposed amendment was refused except for the consensual deletion of paragraphs 8, 9 and 10. The defendants’ application to strike out paragraph 18.1 failed.