Day 312 - 11 Dec 96 - Page 22
1 has a "trading" reputation, and that is from South Hetton
2 Coal Company v. North-Eastern News Association [1894] 1
3 Q.B. 133.
4
5 The Defendants submit that this has important implications
6 to this case. If the court presumes damage to the
7 Plaintiff without any proof of actual loss whatsoever, it
8 is effectively awarding the Plaintiffs a windfall gain. If
9 the only loss they are capable of sustaining in law is a
10 loss to their trading reputation, the question of whether
11 they have in fact suffered any loss should be gauged by
12 reference to their trade. In other words, a trading
13 corporation that claims that its trading reputation has
14 been damaged ought to be required to show proof of that
15 fact. The danger of any other course is that the trading
16 corporation is effectively treated as if it had a general
17 reputation, which it does not.
18
19 There are a couple of spelling mistakes in there.
20
21 No 4, the Defendants' submission is in line with the
22 recommendation of the Faulkes Committee on defamation that
23 trading and non-trading corporations alike should only be
24 able to bring defamation proceedings if they be prove that
25 they have suffered special damage or that the words are
26 likely to cause them pecuniary damage. There is a
27 reference given there; I do not know what the reference is.
28
29 MR. JUSTICE BELL: Yes.
30
31 MS. STEEL: CMND 5, 909, paragraph 342. We were trying to get
32 a copy of that, but we have not.
33
34 MR. JUSTICE BELL: Do not worry because I can get one.
35
36 MS. STEEL: No 5. Further, or alternatively, the Defendants
37 submit that most if not all of the Plaintiffs' claim should
38 be struck out because the allegedly defamatory words
39 complained of are incapable of attribution to a
40 multi-national Corporation. As Lord Goddard recognised in
41 D & L Caterers and Jackson v D'Ajou 1945 KB 364, page 366:
42 "If one said of a company 'it is a murderer' or 'it is a
43 forgerer', I have no doubt that the Company could not bring
44 an action, because a company cannot forge and a company
45 cannot murder, so in the ordinary way it would not be
46 actionable to write something of a company which might be
47 actionable in the case of individuals, unless what is
48 written reflects on the company in its way of business."
49
50 MR. JUSTICE BELL: Just pause a moment. Yes.
51
52 MS. STEEL: As the Defendants submit above, if the Plaintiffs
53 allege that the words complained of reflect on them in
54 their way of business, it is incumbent upon them to show
55 some damage to that business.
56
57 MR. MORRIS: Just to make a point on that matter, that when the
58 Plaintiffs have argued in terms of interpretation of
59 meaning that the words complained of must mean, for
60 example, unconscionable effects of advertising, or these
