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(V23) 1 CLR 1
1957 December 5
[BOURKE. C.J., ZEKIA, J., ZANNETIDES. J.]
KEMSLEY NEWSPAPERS LTD., OF LONDON
Appellants-Defendants
v.
CYPRUS WINES & SPIRITS CO., LTD., "KEO", OF LIMASSOL
Respondents-Plaintiffs.
(Civil Appeal No. 4235)
Defamation - Defamation of a trading Company in its way of trade - Civil Wrongs Law Cap. 9 (as amended by the Civil Wrongs (Amendment) Law 1953), Sections 17 to 23, Section 2 (2) and Section 7 - Imputations of criminal activities against unnamed employees of a Company - Whether capable of being defamatory of the Company itself - Imputations on the products of a Company - They may involve an actionable reflection on the Company itself.
Damages for defamation-Defamation contained in a newspaper distributed abroad and in Cyprus -Whether in assessing damages the Cyprus Courts should take into account the injury likely to be caused to the trading reputation of a Company by reason of the circulation of the newspaper outside Cyprus.
Appeal-Principles upon which an Appellate Court will interfere with damages awarded by the Court of trial.
Injurious falsehood - Special damage - When allegation or proof of, is unnecessary - Civil Wrongs Law Cap. 9, (as amended by the Civil Wrongs (Amendment) Law, 1953) Section 24, Section 2(2), Section 7.
The Respondents are the largest brewers of beer and probably the largest producers of wine and other liquors in Cyprus. Their products are exported all over the world. The Respondents brought an action in the District Court of Nicosia against the Appellants claiming damages for defamation in the way of their trade or business and/or for injurious falsehood. The Court of trial, having found that the words complained of (which are set out in the judgment, post) were outrageously defamatory false and malicious awarded substantial damages (£8,000) in respect of the defamation without awarding another set of damages for injurious falsehood, although all the ingredients of the last-mentioned civil wrong were present, particularly malice. Apparently the trial Court, having taken into consideration the "malice" as an aggravating factor in assessing the damages for defamation, did not think fit to proceed any further with regard to the injurious falsehood.
The Respondents did not allege or prove special damages. The words complained of were printed in the newspaper of the Appellants "The Empire News and Sunday Chronicle", printed and published in the U.K. which has a large circulation in U.K. and is distributed in Cyprus for sale to the public and the troops. They were to the effect that, unknown to the Respondents unnamed employees of theirs were deliberately poisoning in the premises of the Respondents the beer brewed by the latters for sale to N.A.A.F.I. and the British troops. The respondents in paragraph 6 of their Statement of Claim put three innuendos (which are set out in the judgment of the Court post).
The Appellants' main argument before the Supreme Court with regard to this aspect of the case was that inasmuch as there was no aspersion of wilful misconduct against the owners (Respondents), the aforesaid imputation was not and could not be defamatory of the Respondents.
With regard to the damages the Appellants argued:
(1) that in assessing damages, the Court of trial erred in taking into consideration the fact that the libel was published outside Cyprus.
(2) that in so far as the trial judges awarded damages for injurious falsehood, they were not entitled to take into consideration in assessing such damages anything other than the pecuniary loss sustained by the Plaintiffs - Respondents in consequence of the publication complained of.
(3) that in any event the damages were unreasonable and excessive.
Held: (1) The fact that serious aspersions were cast upon its employees does not prevent the Respondent Company from making the case that it was defamed in its trading character. Those aspersions amount to an imputation to be reasonably inferred against the trading character of the Company as alleged by para. 6 (c) of the Statement of Claim (see, post, in the judgment), viz. that it conducted its business inefficiently, with gross neglect and lack of proper supervision, with the result that its workers could poison its products supplied to the Army.
(2) An imputation on the goods sold or manufactured by a trading Company may and in this case does involve a reflection on the Company itself in the way of its business; British Empire Machine v. Linotype (1899) 81 L. T. 331, followed.
(3) The charges, direct or indirect, contained in the offending article would tend to injure the business of the Respondents. A Company can maintain an action for libel (or slander) for any words which are calculated to injure its reputation or business, this without necessarily alleging or proving special damage -
South Hetton Coal Co. v North - Eastern News Association (1894) 1Q.B. 133, followed.
(4) The trial Court, taking into account, inter alia, malice, awarded general damages in respect of the libel only- thinking rightly that the claims in respect of libel and injurious falsehood were alternative ones. This disposes of the ground of appeal that "if and in so far as the learned Judges awarded damages to the Plaintiffs for injurious falsehood, they were not entitled to take into consideration in assessing such damages anything other than the pecuniary loss sustained by the Plaintiffs - Respondents." Had this been an action solely for injurious falsehood and had damages fallen to be assessed under that head, the Company was not limited to proof of special damages. The elements constituting injurious falsehood were established and the printed words upon which the action is founded were calculated to cause pecuniary loss so that Section 24 (2) of the Civil Wrongs Law, Cap. 9, as amended, came to apply and renders it unnecessary to allege or prove special damage. Section 7 of the Civil Wrongs Law in no way nullifies or contradicts, as has been argued, the provisions of Section 24 (2) ; that is apparent if one refers to the definition of "damage" in Section 2 (2) : " ... "damage" means the loss of or detriment to any property, comfort, bodily welfare, reputation or other similar loss or detriment" ;
(5) There is nothing in the writ or in the Statement of Claim by reason of which the Respondents - Plaintiffs shut themselves off from remedy in respect of the much wide publication of the Appellants' newspaper outside Cyprus. The trial Court, therefore, rightly assessed the damages in taking into account, inter alia, the extent of the circulation of the newspaper outside Cyprus and the injury calculated to be caused to the Respondents thereby.
Phillips v. Eyre (1870) L. R. 6 Q. B. 28, referred to.
Whitney v. Moignard (1890) 24 Q.B. D. 630,
Per Vaughan Williams J. at p. 632; and
Gathercole v. Miall (1846) 15 M. and W. 319 per Pollock C. B. at p. 331, followed.
(6) In assessing the damages, the Trial Court did not act upon any wrong principle. Nor the amount awarded, although substantial, was so extremely large as to make it an entirely erroneous estimate of damage.
Cacoyannis v. Papadopoulos 18.C.L.R. 205, followed.
Bull v. Vazques and Another
(1947) 1 All E.R. 334. followed.
Appeal dismissed.
Cases referred to:
South Hetton Coal Co. v. North - Eastern News Association (1894) 1 Q. B. 133.
British Empire Machine v. Linotype (1899) 81 L.T. 331.
Phillips v. Eyre (1870) L.R. 6 Q.B. 28.
Whitney v. Moignard (1890) 24 Q.B.D. 630.
Gathercole v. Miall (1846) 15 M. and W. 319.
Whittaker v. Searborough Post Newspaper Co. (1896) 2 Q.B. 148.
Parnell v. Walter (1890) 24 Q.B.D. 441.
Bull v. Vazques and Another (1947) 1 All E.R 334.
Cacoyannis v. Papadopoulos 18 C.L.R. 205.
Per curiam: Had the Respondents administered an interrogatory as to the precise extent of the circulation it might well be that in the case of a newspaper like the "Empire News" such a requirement would be regarded as extravagant. Dictum of Kay C.J. in Whittaker v. Scarborough Post Newspaper Co. (1896) 2 Q.B. 148. at p. 151. considered.
Appeal.
Appeal by the Defendants against the judgment of the District Court of Nicosia (Dervish P.D.C., Feridoun D.J.), dated the 29th June, 1957 (Action No. 2246/56) whereby damages in the sum of eight thousand pounds were awarded to the Respondents - Plaintiffs in an action for defamation and injurious falsehood.
R.J. Rustomji for the Appellant.
J. Clerides, Q.C. with Sir Panayiotis Cacoyannis and j. Eliades for the Respondents.
Cur. adv. vult.
The facts sufficiently appear in the judgment of the Court, read by:
BOURKE, C.J.: The appellants, Kemsley Newspapers Ltd., appeal against a decision given by the District Court of Nicosia whereby damages in the sum of £8,000 were awarded to the respondents, the Cyprus Wine and Spirits Co. Ltd. (hereinafter referred to as "the Company") in an action for defamation and injurious falsehood brought under the provisions of sections 17 to 24 of the Civil Wrongs Law (Cap. 9) as amended by section 9 of the Civil Wrongs Amendment Law, 1953, (Law No. 38 of 1953).
The respondents are the largest brewers of beer and probably the largest producers of wine and other liquors in Cyprus. The products of the Company are exported all over the world and the average annual turnover amounts to £ 1,600,000. The value of its exports to the United Kingdom during the first half of 1956 amounted to £ 92,988. They are the exclusive suppliers of locally brewed beer to N.A.A.F.I. and the Army stationed in the Island and also supply their wine and spirit products.
The appellants' newspaper, the "Empire News and Sunday Chronicle", which has a wide circulation in the United Kingdom and is distributed in Cyprus for sale to the public and also to troops, carried on the front page of its issue for the 1st July, 1956, under very heavy headlines, the following matter which is that complained of as being defamatory -
British troops warned.
YOUR BEER MAYBE POISONED
Empire News Reporter.
British troops in Cyprus have been warned: If the beer tastes queer, don't drink it!
Some beer brewed on the island for sale to British troops is believed to have been poisoned, by violent E.O.K.A. sympathisers.
The terrorists managed this without the Greek-Cypriot owners of the brewery knowing what was going on, it is said.
The brewery supplies half the beer drunk by British troops on the island.
The rest is shipped by N.A.A.F.I. from Britain.
Security officials are now investigating the personal histories of all brewery and distributive workers. Those found to be anti-British are being weeded out.
DOCTORS FOUND OUT
Several British Army units have reported a number of cases of severe "food poisoning" recently.
Army doctors who examined them discovered that the cause was contaminated beer or wine.
When they were questioned, the soldiers who were ill disclosed they had been drinking wine or beer not sold by N.A.A.F.I.
All troops are now being warned not to drink the cheap wine sold throughout the island.
They have been told: BE CAREFUL WTHAT YOU DRINK.
A N.A.A.F.I. official in London said last night: "The beer contracted to be bought for our troops from the brewery is the same as that sold to the civilian population."
"It is true that employees inside the brewery would know which crates of beer were going to the civilians and which crates to the British Army."
"Recently production at the brewery was cut down because of political strikes and unrest. As a result we had to step up our supplies of bottled beer from Britain. But the position is now righting itself."
As a precautionary step, security men are being posted inside the brewery to keep a careful watch on the bottling and packing of British Army contracts.
An officer just returned from Cyprus told me: "The risks are still there, but we are doing everything possible. Last March it was suggested that N.A.A.F.I. should import its own plant and run it."
A War Office official said: "We can make no comment. Any such security action would be solely the matter of the army commander in Cyprus."
It was alleged in paragraph 6 of the statement of claim that the said words meant and were understood to mean -
"(a) that beer supplied by plantiffs to British troops was poisoned;
(b) that British troops should avoid drinking Beer or Wines produced by plaintiffs;
(c) that plaintiffs did not keep proper watch over their brewery and distributive works with the result that beer supplied by them for consumption by British troops was poisoned."
By paragraphs 7 and 8 of the statement of claim it was alleged -
"7. By the said publication the plaintiffs have been greatly injured in their good name and credit and in their reputation as manufacturers and sellers of wines and spirits and beer and suffered damage.
8. Plaintiffs further allege that the words complained of which refer to goods manufactured by plaintiffs constitute injurious falsehood concerning plaintiffs' Beer and Wines and are calculated to cause pecuniary loss to plaintiffs."
The District Court came to the conclusion without any hesitation that the article was defamatory, that the statements of fact it contained were false, and that it was published with malice. There was no claim for special damage and the general damages were assessed at £8,000.
The ground of appeal questioning the finding as to malice was not argued. It was admitted (as it was below in the course of the trial) that the article referred to the Company, and also that the statements it contained were false. It was expressly conceded in address that the ,words used were aptly described by the trial Court as being nothing short of a wicked and vicious attack on the products of the Company. One would think that all this amounts at any rate to an admission that injurious falsehood was established, though it is aground of appeal that any damages in respect of such ,wrong could not be other than the actual pecuniary loss sustained and no special damage was either claimed or proved. This contention seems to lose sight of the provisions of section 24 (2) of the Civil Wrongs Law as amended but I wiII deal with it when I come to the question of damages.
Mr. Rustomji for the appellants has said that the two most important grounds of appeal upon which he relies are - (a) that the words complained of were not reasonably capable of bearing and did not in fact· bear the meaning alleged or any meaning defamatory of the respondents, and, (b) that the damages awarded were unreasonable and excessive. It is argued that, apart from any reflection upon the actual products of the Company, there is nothing in the article that could bear the defamatory meaning as alleged in paragraph 6 (c) of the statement of claim; there is nothing defamatory of the Company itself but only of those unnamed and unknown employees of the Company who are said to be violent E.O.K.A. sympathisers who managed to poison the beer brewed for sale to British troops. Such employees, it is contended have been defamed, but not the Company which, so far from being libelled, has been paid the compliment of the statement contained in the publication that the owners of the brewery did not know What was being done by its terrorist servants and would, by implication, have stopped them poisoning the beer if they did know; there was no statement in the article to the effect that the members or directors of the Company poisoned or were thought to have taken any part directly or indirectly in poisoning the beer; indeed the "Greek-Cypriot owners" were expressly exonerated by the statement that the poisoning was "managed" without their knowledge. If any action lay it was at the suit of the maligned employees, who anyway were unnamed and unknown, and not at the suit of the Company as such which was in no position validly to complain of any defamation. Such, in brief, was the main argument put forward on this aspect of the case.
In considering whether the words published were capable of a defamatory meaning and whether in fact they defamed as alleged, the learned Judges of the District Court came to the following conclusion:
"We are at a loss to understand how any reasonable man of the most ordinary and average intelligence can come, to any other conclusion than that the article - exhibit 1 - read as a whole as it must be, is nothing short of a wicked and vicious attack on the products of the plaintiff company. There is no doubt in our minds that the only reasonable meaning a man of reasonable intelligence can derive out of the article is that the beer and wines produced by plaintiffs 1 (respondents) were poisoned by violent E.O.K.A. sympathisers who are employed by plaintiffs 1.... All these statements can only mean that the beer and wine sold by plaintiffs 1 were being poisoned in the premises of plaintiffs 1 and by, some of its employees. And if to say of plaintiffs' goods that they contain poison deliberately put there by some of their employees for the purpose of poisoning British Troops is not a defamatory statement which 'naturally tends to injure or prejudice the reputation of any other person in the way of his trade and business,' we do not know what is. We have not the slightest hesitation or doubt that the article referred to is defamatory.... We do not doubt that the publication-exhibit 1-is calculated to injure the reputation of plaintiff 1 company in the way of its trade or business. The statement that beer and wine produced by the plaintiffs 1 is poisoned is undoubtedly calculated to injure their reputation and their trade or business."
To my mind the answer to the question raised is too clear to permit of argument. The fact that serious aspersions were cast upon its employees does not prevent the Company from making the case that it was defamed in its trading character nor impugn a finding as to such defamation. Much has been made of the defamatory meaning alleged in paragraph 6 (c) of the statement of claim, namely, "that the plaintiffs did not keep proper watch over their brewery and distributive works with the result that beer supplied by them for consumption to British troops was poisoned." In addition to the Company there was a second plaintiff, Mr. Costakis Glykys, the resident managing director of the Company. His claim did not succeed since the trial Court took the view that the article was not "prima facie defamatory" of him in that it did not mention Mr. Glykys - or any other employee - by name or description and on the face of it there was no open imputation of negligence or any incriminating reference to him. In evidence the managing director said that on reading the article he connected it with the Company and not with himself. The Court concluded that - "We have no evidence before us to prove the innuendo that any person reading the offending article connected Mr. Glykys with it." In the absence of such evidence his claim was held to fail. It is now argued that since it was not established that the article contained any imputation affecting the resident managing director by stating or implying that he did not "keep proper watch over the brewery" or was inefficient and negligent in his management, it would be illogical and wrong to find that the meaning as alleged in paragraph 6 (c) of the statement of claim emerged in relation to the Company and indeed there was no such express finding: therefore the Company had failed to prove this innuendo and could not succeed in their action.
I cannot find any substance in this line of argument. Not only does the article defame in the manner alleged in paragraphs 6 (a) and (b) and 7 of the statement of claim, but surely there is also the imputation to be reasonably read into the article against the trading character of the Company that it conducted its business inefficiently and with gross neglect and lack of proper supervision with the result that its workers could poison its products supplied to the Army. That such meaning also was accepted by the Court below is, I think, implicit in its findings. A Company has a trading character the defamation of which may ruin it. It can maintain an action of libel or slander for any words which are calculated to injure its reputation in the way of its trade or business and this without alleging or proving special damage, South Hetton Coal Co. v. North - Eastern News Association (1894) 1Q.B. 133. An imputation on the goods sold or manufactured by a trading Company may involve a reflection on the company in the way of its business, British Empire Machine v. Linotype (1899) 81 L.T. 331. Can there be any doubt that the charges direct and indirect contained in the offending article would tend to injure the business of the Company? It is hardly necessary to apply the common sense test and ask oneself the question - What would be the effect of the charges on the business of the Company if they were proved to be true, and could it be said that such effect could not be injurious (Gatley 4th edn. pp 416 - 7) ? It is not too much to think that the effect would be that injury would result to the business and trading character of the Company to the point of catastrophe.
I can find no merit in this ground of appeal. In my opinion the learned Judges came to a correct conclusion on this aspect of the case as to the defamatory nature of the article the subject-matter of complaint.
The remaining grounds of appeal that were argued concern the assessment of damages. In the first place it is submitted that the District Court erred in taking into consideration the fact that the libel was published outside Cyprus. It is said that the writ, which was issued for service upon the appellants out of the jurisdiction, and the statement of claim, did not claim damages in respect of any publication other than that occurring in Cyprus.
The second defendant, Poulias & Koniaris Ltd., who were responsible for distribution of the newspaper in Cyprus and against whom the damages were also given, have not appealed. No objection was taken below to evidence as to the extent of circulation of the "Empire News and Sunday Chronicle" newspaper outside Cyprus and indeed more detailed information as a matter of belief was brought out as to this in cross-examination of the plaintiff Mr. Costakis Glykys. There was the evidence of Major Dermot McFarran, R.A.M.C., that he knew of the newspaper and had seen it widely circulated in England and freely circulated amongst the troops serving out of England as well as amongst troops in Cyprus. It is evident that the District Court approached the matter on the basis of a wide circulation of the newspaper and publication of the article therein not only in Cyprus but also outside the Colony. It is stated in the judgment - "We have no concrete evidence of the extent of the circulation of the "Empire News" but Mr. Glykys in his evidence stated that he thought it was about 1,000,000 copies daily. His evidence remains uncontradicted." While there is a ground of appeal going to this, that the evidence was insufficient to establish a circulation of a million copies daily, it does not appear to have been in dispute that the newspaper did have a large circulation particularly in England where it is printed and published. The real ground of the argument is that the writ and statement of claim sought damages only in respect of publication in Cyprus. I can see nothing in the writ or pleading limiting the claim to damages arising out of publication only in Cyprus. The extent of the damage which defamatory matter may cause must clearly depend to a great degree upon the extent of the publicity given to it. It would be an extraordinary thing if the respondents, who have large business dealings in England and over the world, had limited their claim to be compensated only in respect of such damage as could be said to have flowed from the comparatively small extent of the publication in Cyprus. I do not think they have. By paragraph 3 of the statement of claim it is alleged that the appellants printed and published the newspaper in England. An action will lie for a libel or slander published abroad if it is a wrongful act by the law of the country where it was effected, Phillips v. Eyre (1870) L.R. 6 Q.B. 28. If a man prints a libel in one edition of a paper well knowing that it will be republished in other editions of that paper in another country, he will he liable for such republication, Whitney v. Moignard (1890) 24 Q.B.D. 630; as was said by Vaughan Williams J. in that case (at p. 632)-"I think the plaintiffs can show by evidence that the diffusion of the libel was likely to be large, and that evidence will be admissible to show the circumstances under which the defendant must have contemplated that the libel was likely to be widely diffused." "In order to show the extent of the mischief that may have been done to the plaintiff by a libel in a newspaper, you have a right to give evidence of any place where any copy of that libel has appeared for the purpose of showing the extent of the circulation", per Pollock C.B., Gathercole v. Miall (1846) 15 M. & W. 319 at 331. The evidence in the instant case may not be detailed but it was never contested that a considerable number of copies of the paper are circulated daily in England, which would include the issue containing the libel. Had the respondents administered an interrogatory as to the precise extent of the circulation it might well be that in the case of a newspaper like the "Empire News" such a requirement would be regarded as extravagant. As was said by Kay L.J. in Whittaker v. Scarborough Post Newspaper Co. (1896) 2 Q.B. 148 at p. 151, referring to Parnell v. Walter (1890) 24 Q.B.D. 441, where a question was asked for the purposes of a trial as to the circulation of a newspaper like the "Times" - "It is impossible not to see that in such a case the jury would know what the circulation of the newspaper is sufficiently well for the purpose of assessing the damages." It is perhaps going too far to suggest that the Judges of fact in Cyprus would be in a similar position to place a reasonable estimate upon the circulation of even a well-known newspaper such, as the "Empire News" as would a jury in London. But I am concerned at the moment with that ground of appeal which alleges "that there was no, or no sufficient evidence that the circulation of the "Empire News" was 1,000,000 copies daily." The witness, Mr. Glykys, was giving a rough estimate to the best of his belief and it was never challenged. Apart from that there was the evidence of Major McFarran, which again was not questioned, that he had seen the newspaper widely circulated in England and freely circulated among troops abroad. There was enough to show that the circulation of the offending issue in England was considerable. As to publication in Cyprus the evidence afforded greater detail. I do not think that in assessing the damages the learned Judges had no evidence or insufficient evidence before them or proceeded upon any wrong basis in assessing damages when they came to consider the extent of the publication. Nor, as I have indicated, do I consider that the respondents have, by reason of what is contained in the writ and statement of claim, shut themselves off from remedy in respect of the very much wider publication outside Cyprus.
Coming to the damages awarded, it has been seen that the claim was in respect of defamation and injurious falsehood and general damages were asked for and were assessed as such. They were given, as is clear from the judgment, in respect of the libel. No one suggests that the Company was not entitled to bring an action in respect of the two wrongs and Mr. Clerides for the respondents has stated that it was an alternative claim. It is a ground of appeal that "if and in so far as the learned Judges awarded damages to the plaintiffs for injurious falsehood, they were not entitled to take into consideration in assessing such damages anything other than the pecuniary loss sustained by the plaintiffs 1(respondents) in consequence of the publication complained of." Had this been an action solely for injurious falsehood and had damages fallen to be assessed under that head, I would think it a case in which the Company was not limited to proof of special damage. The elements constituting injurious falsehood were established and the printed words upon which the action is founded were calculated to cause pecuniary loss to the Company so that section 24 (2) of the Civil Wrongs Law as amended came to apply and render it unnecessary to allege or prove special damage. Section 7 of the Civil Wrongs Law in no way nullifies or contradicts, as has been argued, the provisions of section 24 (2) ; that is apparent if one refers to the definition of "damage" in section 2 (2). But this is a case where there is overlapping in that ingredients going to constitute injurious falsehood, such as malice, have been taken into consideration as aggravating features of the libel alleged ,to be a falsely and maliciously published and for which the Company was given damages. The Court below did not proceed to give damages in respect of the defamation and then award another set of damages for injurious falsehood.
It is submitted that the damages awarded were unreasonable and excessive. The damages are undoubtedly substantial. The learned Judges took a very serious view of the nature of the libel and regarded it as outrageous. So it was. The damages might have been appreciably more had the Army Authorities not swiftly moved in their own interests to enquire and inspect the brewery thus disproving the allegations of poison being introduced into the beer. The subsequent conduct of the appellants, which is dealt with fully in the judgment of the lower Court, did not go to mend matters. The principles upon which this Court will act to interfere with the amount of damages awarded are well-established and I refer to Cacoyannis v. Papadopoulos 18 C.L.R. 205 for their statement: I refer also to Bull v. Vazques and Another (1947) 1 All E.R. 334. I am not satisfied that the learned Judges acted upon any wrong principles of law or that the amount awarded was so extremely large as to make it an entirely erroneous estimate of damage.
I would dismiss the Appeal with costs.
ZEKIA, J. I agree.
ZANNETIDES, J. I also agree.
Appeal dismissed with costs.