Day 186 - 10 Nov 95 - Page 47


     
     1
     2   MR. JUSTICE BELL:  You see, literally the bottom line, if you
     3        look at page 139, almost literally the bottom line of 139:
     4
     5             ".....the only question would have been whether
     6             it contained statements with regard to the
     7             conduct by the plaintiffs' company of their
     8             business, tending to shew that it was so
     9             improper and inefficient as to bring them into
    10             contempt or discredit."
    11
    12        Earlier, there is a reference to "conducting business badly
    13        and inefficiently" being defamatory.  So it may be that the
    14        test is, at the end of the day, whether it is inefficiency,
    15        carelessness, fraud.  You have to ask yourself: Is that
    16        such as to bring the company concerned into discredit in
    17        the eyes of the ordinary reader?  Obviously, it is much
    18        more likely that that will happen if it is fraud than if it
    19        is mere carelessness.  But it does not matter what epithet
    20        you put against it; at the end of the day, you have to ask:
    21        Would that discredit the company concerned in the eyes of
    22        the ordinary reader?
    23
    24   MR. MORRIS:  Yes; and we would say that would be much more
    25        stronger than what it says in our leaflet on the subject of
    26        their nutrition guide.
    27
    28        That was South Hetton Coal Company.  The next one is
    29        Evans v. Harlow, page 1387, tab 10 of the list of
    30        authorities, bottom of page 1387 -- which, really, is a
    31        continuation of the previous point -- where Lord Denman CJ
    32        says:
    33
    34             "I am of the opinion that the statement
    35             complained of does not amount to a libel."
    36
    37        It goes on down the page:
    38
    39             "The gist of the complaint is, the defendant's
    40             telling the world that the lubricators sold by
    41             the plaintiff were not good for their purpose,
    42             but wasted the tallow.  A tradesman offering
    43             goods for sale exposes himself to observations
    44             of this kind; and it is not by averring to them
    45             to be 'false, scandalous, malicious and
    46             defamatory' that the plaintiff can found a
    47             charge of libel upon them.  To decide so would
    48             open a very wide door to litigation, and might
    49             expose every man who said his goods were better
    50             than another's to the risk of an action.  There 
    51             is, in this case, a caution given by the 
    52             defendant against the plaintiff; but it is not 
    53             against fraud in him; it is simply on account of
    54             his selling defective goods.  Any one selling
    55             the same articles would have as much right to
    56             complain as he has.  The imputation is only on
    57             the goods, and is not grounds for an action."
    58
    59        So I think there is some indication that even calling goods
    60        defective is not, in itself, defamatory.  Even if we say

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