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

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