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?
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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
