Ajinomoto Sweeteners Europe Sas v Asda Stores Ltd

In a malicious falsehood action, the court may direct the separate trial of meaning as a preliminary issue under CPR Part 3. The approach need not materially differ from that in defamation proceedings merely because the claimant must prove falsity and malice. The principal consideration is whether the preliminary trial is likely to save costs, subject to avoiding unfairness. A meaning issue is suitable where it is sufficiently self-contained, may dispose of the claim, or will define the issues of falsity and malice. The court may provisionally adopt a single-meaning approach for practical reasons without deciding whether that rule applies generally to malicious falsehood.

Ajinomoto manufactured and supplied aspartame. Asda marketed own-label products as free from aspartame and other substances, using expressions including “no hidden nasties”. Ajinomoto brought a malicious falsehood claim, alleging that the words conveyed that aspartame was harmful or potentially harmful.

Ajinomoto applied for a preliminary issue concerning the natural and ordinary meaning of the words complained of. The application was opposed on the grounds that it might increase costs, that evidence about consumers’ awareness of controversy concerning aspartame might be required, and that the claim involved separate issues of meaning, falsity and malice. The question was whether meaning should be tried separately and preliminarily.

1. Application granted. The issue whether the words complained of bore the pleaded natural and ordinary meaning was suitable for trial as a separate preliminary issue.
2. Under CPR Part 3, the court’s approach to a preliminary issue in malicious falsehood should not materially differ from its approach in defamation. Although CPR Part 53 was confined to defamation actions, that limitation did not justify a different case-management approach.
3. The principal consideration was whether determining the issue separately would save costs. No order should be made where severance would cause unfairness. Here, rejection of Ajinomoto’s pleaded meaning would end the claim. If the meaning were upheld, the determination would define the parameters of the issues of falsity and assist the parties on malice.
4. The court accepted that the meaning issue was self-contained. A trial of the safety of aspartame would be prolonged and very expensive, involving expert scientific and medical evidence and detailed examination of regulatory material and studies. Those considerations supported deciding meaning first.
5. The court did not decide whether the single-meaning rule generally applies to malicious falsehood. It considered that there were sound practical reasons for adopting that approach in this case, including avoiding a trial based on a wide range of subjective interpretations. The rule did not apply to the determination of malice, but a preliminary ruling on meaning could nevertheless assist on that issue.
6. The court was satisfied, on Ajinomoto’s instructions, that there was no improper intention to seek a preliminary trial of falsity before malice. The wording of the issue and future conduct of the action were left for further argument.