[COURT OF APPEAL]

BOOKBINDER v. TEBBIT

[1987 B. No. 2774]

Libel and Slander - Pleadings - Defamatory meaning - Political speech referring to specific incident of plaintiff's spending of public money - Context in which words spoken - Defence including particulars of other incidents of public spending - Whether words spoken capable of wider meaning - Whether particulars to be struck out

A county council decided that all its stationery, including that of schools within the county, should bear the caption "Support Nuclear Free Zones." During a by-election in a constituency within the county, the defendant addressed a public meeting in support of the Conservative candidate. During the course of his speech he stated that the £50,000 spent on printing anti-nuclear statements on school stationery was a foolish idea and if the plaintiff, the leader of the Labour majority on the council, had not told the Russians of the county's nuclear free policy, it was arguable that he had lost £50,000. The plaintiff issued a writ claiming damages for defamation and, in his statement of claim, alleged that the words in their natural and ordinary meaning meant that the plaintiff, as leader of the council, had acted irresponsibly in causing large scale squandering of public funds. The defendant, by his defence, denied that the words were defamatory and, alternatively, pleaded fair comment. In paragraph 6(7) to (19) he referred to other items of council spending which he claimed were examples of the council under the plaintiff's leadership squandering public money. The plaintiff then amended his statement of claim to allege that the words in their natural and ordinary meaning meant that the plaintiff as leader of the council had acted irresponsibly in squandering £50,000 of public money on printing statements supportive of

nuclear free zones on its stationery and, when the defendant indicated that he would not make a corresponding amendment of his defence by deleting paragraph 6(7) to (19), applied to have those sub-paragraphs struck out as disclosing no reasonable defence to the alleged defamatory remarks in the amended statement of claim. The judge dismissed the application on the ground that a jury might consider that the words bore the meaning that the plaintiff was irresponsible in squandering public money as shown by the overprinting of school stationery.

On appeal by the plaintiff: -

Held, allowing the appeal, that it was a question of law whether the words complained of were an allegation of general irresponsible spending of public money or of a specific incident of such expenditure; that in the absence of a pleading of the context in which the words were spoken, the court had to determine that issue solely on the pleaded words spoken by the defendant at a public meeting; that the allegation that a spending of £50,000 on overprinting stationery could not mean that the plaintiff as leader of the council had been irresponsible in the expenditure of public money on other occasions; and that, therefore, the plaintiff had properly amended the error in his statement of claim and paragraph 6(7) to (19) of the defence would be struck out (post, pp. 645E, 646A-E, 647B-C, 651D-F, 652A-F).

Decision of Caulfield J. reversed.

The following cases are referred to in the judgments:

Bonnard v. Perryman [1891] 2 Ch. 269, C.A.

Davey v. Harrow Corporation [1958] 1 Q.B. 60; [1957] 2 W.L.R. 941; [1957] 2 All E.R. 305, C.A.

Hollis v. Burton [1892] 3 Ch. 226, C.A.

Khashoggi v. I.P.C. Magazines [1986] 1 W.L.R. 1412; [1986] 3 All E.R. 577, C.A.

Lewis v. Daily Telegraph Ltd. [1964] A.C. 234; [1963] 2 W.L.R. 1063; [1963] 2 All E.R. 151, H.L.(E.)

London Computer Operators Training Ltd. v. British Broadcasting Corporation [1973] 1 W.L.R. 424; [1973] 2 All E.R. 170, C.A.

Lucas-Box v. News Group Newspapers Ltd. [1986] 1 W.L.R. 147; [1986] 1 All E.R. 177, C.A.

Maisel v. Financial Times Ltd. (No. 1) (1915) 84 L.J.K.B. 2145, H.L.(E.)

Polly Peck (Holdings) Plc. v. Trelford [1986] Q.B. 1000; [1986] 2 W.L.R. 845; [1986] 2 All E.R. 84, C.A.

Speidel v. Plato Films Ltd. [1961] A.C. 1090; [1961] 2 W.L.R. 470; [1961] 1 All E.R. 876, H.L.(E.)

Warner v. Sampson [1959] 1 Q.B. 297; [1959] 2 W.L.R. 109; [1959] 1 All E.R. 120, C.A.

Williams v. Reason (Note) [1988] 1 W.L.R. 96; [1988] 1 All E.R. 262, C.A.

The following additional cases were cited in argument:

Prager v. Times Newspapers Ltd. [1988] 1 W.L.R. 77; [1988] 1 All E.R. 300, C.A.

United States Tobacco International Inc. v. British Broadcasting Corporation (unreported), 11 March 1988; Court of Appeal (Civil Division), Transcript No. 220 of 1988, C.A.

INTERLOCUTORY APPEAL from Caulfield J.

By notice of appeal dated 18 May 1988, and served on the defendant, the Rt. Hon. Norman Tebbit M.P., the plaintiff, David Melvyn Bookbinder, appealed against the order of Caulfield J. on 26 April 1988

whereby he dismissed the plaintiff's application to strike out sub-paragraphs (7) to (19) of paragraph 6 of the defence but granted leave to appeal.

The principal ground of the appeal was that the judge had erred in law in holding that the wider meaning of the words used by the defendant, on which he sought to rely, was a conceivable and ordinary meaning which a jury might put upon the words.

The facts are stated in the judgment of Ralph Gibson L.J.

Alan Newman for the plaintiff.

Geoffrey Shaw and Stephen Suttle for the defendant.

8 December. The following judgments were handed down.

RALPH GIBSON L.J. This is an interlocutory appeal in an action for damages for allegedly defamatory words brought by the plaintiff, Mr. David Melvin Bookbinder, who at the material time was the leader of the Labour majority which controls the Derbyshire County Council. The defendant is the Rt. Hon. Norman Tebbit, M.P., chairman of the Conservative Party. The plaintiff applied for part of the particulars of justification set out in the defence to be struck out on the ground that the allegations contained in them disclosed no reasonable defence and are vexatious and/or are an abuse of the process of the court. Caulfield J. on 26 April 1988 dismissed the application and the plaintiff appealed to this court.

The history of the dispute began in 1984 when the council decided that the caption "Support Nuclear Free Zones" should be printed on its stationery including the stationery of the county schools and educational institutions. Existing stationery stocks were overprinted. It seems that there were suggestions that this exercise had cost much money and a sum of £50,000 was mentioned in a newspaper. In May 1986 there was a by-election for the West Derbyshire constituency. On the evening of 6 May 1986, at a public meeting in Matlock Baths, held in support of the Conservative candidate, the defendant referred to the matter. It is common ground between the parties that the defendant, speaking at the public meeting, said:

"The £50,000 spent on printing anti-nuclear statements on county schools' stationery was a 'damn fool' idea. I hope that Councillor David Bookbinder has also told the Russians of Derbyshire's nuclear free policy. If not, it is arguable that he has lost £50,000 on this damn fool idea on school notepaper."

It is to be noted that the words he used state as a fact that £50,000 had been spent on printing the anti-nuclear message on the school stationery. The opinion is then expressed that that was a damn fool idea; and there is then what might be thought to be a sarcastic reference to telling the Russians of Derbyshire's nuclear free policy and the suggestion that, if the Russians had not been told, the £50,000 might have been lost.

The plaintiff's action was commenced by writ on 11 March 1987 after the lapse of some eight months available for reflection. The plaintiff's statement of claim alleged that the task of overprinting stationery was undertaken by the council without the employment of any extra staff,

without making any special collections or deliveries, and by using spare printing time at the county's printing department; so that the cost of that form of advertising of the council's policy was minimal. The plaintiff thus asserts that the fact alleged in the defendant's statement was untrue; but that assertion is denied by the defendant and the real cost of the overprinting is disputed.

Next the statement of claim alleged that the words, in their natural and ordinary meaning, meant and were understood to mean that the plaintiff, as leader of the Derbyshire County Council, had acted irresponsibly in causing large scale squandering of public funds. Thus, in its first form, the statement of claim alleged a general charge of squandering and did not merely allege that the words meant that the plaintiff had caused a sum of about £50,000 to be squandered on overprinting school stationery.

The defence was served on 29 April 1987. It denied that the words had or were capable of bearing any defamatory meaning. The defendant next relied, in the alternative, on the defence of fair comment upon a matter of public interest, namely the expenditure by the council of money collected as rates. The viability of the defence of fair comment, of course, depends upon proof of the substantial truth of the facts stated. In addition, the defence pleaded justification: the defendant said that, if the words which he used had the meaning which the plaintiff alleged, that is to say that the plaintiff had been guilty of irresponsible squandering of public funds, then the defendant would show that the charge was true and in paragraph 6 he gave particulars of the facts and matters on which he relied. These particulars fall into two categories: the first part, sub-paragraphs (1) to (6) are directed to the specific issue of overprinting. The second part of the particulars, namely sub-paragraphs (7) to (19) deal with other occasions of alleged squandering of public money by the council under the leadership of the plaintiff. Examples are as follows: in sub-paragraphs (7), (8) and (9) publication from 1983 by the council of a free quarterly newspaper at an alleged annual cost of £76,000 and containing allegedly political propaganda; (10) employment in 1985 of an advertising agency to launch an advertising campaign on behalf of the council, the cost of the campaign being estimated at £660,000; (11) the sending in 1986 of councillors abroad in furtherance of "twinning" arrangements; (13) the giving in March 1985 of £33,000 to a college outside Derbyshire; (14) the organising in about 1983 of a "peace conference" at Matlock in 1983; (15) the cost in 1982 of early retirement of a council surveyor; (17) the spending in 1985 of £20,000 on sponsorship of a relay run by young people to the Russian border; (18) the allegation that in March 1987 Derbyshire was the highest rated county in England. The last sub-paragraph (19) reads:

"By reason of [those] facts and matters . . . the defendant will contend that the plaintiff as leader of the Derbyshire County Council has indeed acted irresponsibly in causing large scale squandering of public funds."

The plaintiff, who, it is submitted, wishes to have tried the issue on which he started his action and not all the other issues which the defendant has raised, repented of the form of his pleading and amended it. Paragraph 5 of his statement of claim now reads:

"The said words in their natural and ordinary meaning meant and were understood to mean that the plaintiff as leader of the Derbyshire County Council had acted irresponsibly in squandering £50,000 of public money on printing statements supportive of nuclear free zones on its stationery."

The plaintiff invited the defendant to amend his defence accordingly and to delete sub-paragraphs (7) to (19) of paragraph 6 but the defendant declined. Hence the application to strike out those sub-paragraphs.

Caulfield J. dismissed the plaintiff's application because, in his judgment, the wider meaning was one which a jury might conceivably attach to the words used: the defendant was saying that: "the plaintiff was irresponsible in squandering public money and was giving an example in the overprinting of the school stationery." He added:

"there is a common sting here between the words used by the defendant and complained of by the plaintiff and the point of justification made by the defendant and the common sting is a waste of ratepayers' money."

The submission to this court for the plaintiff by Mr. Newman in summary form was as follows. (i) The wider meaning of the words, as first alleged by the plaintiff in the statement of claim settled by Mr. Newman, was not a meaning of which the words were reasonably capable and, if the defendant had made application, the court must have struck out the allegation on that ground. (ii) The plaintiff is entitled to correct the error in his pleading. There is no estoppel. Now that the words have been removed by amendment the action proceeds as if they had never been there: Warner v. Sampson [1959] 1 Q.B. 297, 321. (iii) The matters alleged in sub-paragraphs (7) to (19) of paragraph 6 of the defence may be regarded as having been relevant and permissible while the plaintiff's pleading contained the alleged wider meaning. (There are matters of dispute as to the state of the pleading even if the wider meaning should be upheld as a meaning which the jury might reasonably attach to the words but those matters will, if necessary, be left for resolution by requests for particulars.) Upon amendment of the statement of claim, since the wider meaning is not a conceivable meaning which the jury could properly attach to the words, the sub-paragraphs (7) to (19) should be struck out since they allege irrelevant matters which do not justify the charge contained in the words used and therefore constitute allegations designed to reduce the damage and as such are impermissible: Speidel v. Plato Films Ltd. [1961] A.C. 1090. (iv) The wider meaning is not a reasonably conceivable meaning of the words used because the words allege one specific "damn fool idea" in the spending of a named sum, £50,000 on one particular exercise, namely the overprinting of stationery. (v) The defendant's attempt to adhere to the wider meaning, and thereby to introduce the other issues into the trial, will greatly prolong the trial and increase the expense of it. The result would be oppressive to the plaintiff.

The contentions in answer put forward for the defendant by Mr. Shaw went as follows. (i) Where the plaintiff has pleaded a wide meaning, the defendant is entitled to justify that meaning: see Maisel v. Financial Times Ltd. (No. 1) (1915) 84 L.J.K.B. 2145. The plaintiff ought not to be allowed to circumvent that principle after service of the defence by an amendment. Mr. Shaw referred to "moving the goal

posts." (ii) Although the plaintiff can by amendment remove his original allegation from his pleading, the fact is that the plaintiff, of whom the words were spoken, considered that, as applied to him, they had the wider meaning; the jury may well agree with his first view; and the court should not say that such a view is not reasonably conceivable. (iii) The defendant is entitled to justify any meaning which the words can conceivably bear: London Computer Operators Training Ltd. v. British Broadcasting Corporation [1973] 1 W.L.R. 424; and, for the purposes of an interlocutory application to strike out, the test is whether the wider meaning sought to be justified by the defendant is "reasonably arguable" as the meaning of the words complained of: see Williams v. Reason (Note) [1988] 1 W.L.R. 96, 102, per Stephenson L.J. (iv) Right minded persons on hearing the words used would think the worse of the plaintiff not because of any particular frolic upon which he has wasted public money but because he wasted public money; and the defendant ought to be allowed to prove, if he can, the fact that the plaintiff had wasted public money by reference to other items of expenditure.

It is first necessary, in my judgment, to decide what effect must be given to the original pleading of the plaintiff. Mr. Newman for the plaintiff has contended that the first form of pleading was a mistake. It was not put forward for any tactical purpose. When the consequence of the error was seen there was a prompt attempt to correct it: the statement of claim was served on 11 March 1987; the defence was served on 29 April 1987; and notice of intention to amend the statement of claim was given on 22 July 1987. It has not been argued on behalf of the defendant that, irrespective of the merits of the point as to the proper meaning of the alleged libel, the plaintiff could be prevented from amending the statement of claim by reason of any disadvantage to the defendant, arising from the original form of the pleading, which could not be put right by an order for costs.

A party is normally entitled to correct by amendment a bona fide error in his pleading where the other side is not unfairly disadvantaged if the error is corrected. That principle is plain, where, for example, an incorrect admission of fact is made by mistake: see Hollis v. Burton [1892] 3 Ch. 231. This case is concerned with a contention as to the meaning of an alleged libel and by it notice is given of what claim will be made by the plaintiff at the trial. It may sometimes be wrong to permit a party to resile from the position adopted, and maintained for a considerable period of time, in his pleading with reference to some issue in the case: see Davey v. Harrow Corporation [1958] 1 Q.B. 60, 69, per Lord Goddard C.J. There is nothing, in my judgment, in Maisel v. Financial Times Ltd. (No. 1), 84 L.J.K.B. 2145, cited by Mr. Shaw, which establishes any principle which might deny to this plaintiff the right to amend in due time such an allegation made by him in his pleading. According to the construction which the plaintiff in that case had in his pleading placed on the libel the defendants were sued for a general charge that the plaintiff was a dishonest person. It was, therefore, obvious that they were entitled to give particulars showing why they said he was a dishonest person; but there was no question there of the plaintiff amending his allegation so as to withdraw the wider charge.

If, in a defamation cases, the plaintiff were not free by amendment, made in due time, to correct an error in his pleading the plaintiff might, by such an error, be caused to have to fight a case upon issues which the

law would otherwise have excluded. In my judgment, the only force of the wider allegation originally made by the plaintiff is, as Mr. Shaw pointed out, that the plaintiff, with the assistance of advice, considered that, as applied to him, the words had that wider meaning.

The question for this court, therefore, is whether the words used could reasonably be regarded by the jury as meaning that the plaintiff was in 1986 a councillor who had acted irresponsibly in causing large scale squandering of public funds generally, and not only that he had squandered £50,000 of public funds on a particular "damn fool idea," namely the overprinting of stationery. That question is, of course, not to be answered by deciding whether the jury could in fact in probability be persuaded to accept that the words had the wider meaning. It is a question of law whether the words are capable of having the wider meaning for which the defendant now contends: see perLord Reid, in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234, 260. In that case the jury had found the words to have the wider meaning for which, in that case, the plaintiff contended, but the Court of Appeal set aside the verdict and judgment on the ground of misdirection and the House of Lords, by a majority of four to one upheld the decision of the Court of Appeal. As to the approach of the court in considering what meaning the jury might properly infer from the words used, Lord Reid said, at p. 259 (cited in Duncan & Neill on Defamation, 2nd ed. (1983), para. 4.15):

"Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words . . ."

The question with reference to these words might have been raised, and in my view can usefully be considered, in a different context, as Mr. Newman pointed out, if the case had gone to trial on the issue as first pleaded by the plaintiff and with a plea of justification directed to the sole issue of spending or squandering public funds, to the extent of £50,000, or some smaller amount, on overprinting stationery. If the judge had directed the jury that they could, if they saw fit, find that the words in their natural meaning were not limited to a charge of squandering public funds on publicising the council's anti-nuclear policy by printing a caption on stationery but extended to a general charge of having caused large scale squandering of public funds while a councillor; and if the jury had found for the plaintiff and awarded damages appropriate to that general charge; would this court have been obliged to uphold the verdict and judgment on the ground that the wider meaning was one which the jury could properly attach to the words?

It has not been, and could not be, suggested that a particular charge of wrongdoing necessarily may be regarded by the jury in all cases as including a general charge of that sort of wrongdoing. Even where a defendant has published two distinct libels about a plaintiff the law permits the plaintiff to complain of one only, and to have that issue decided, and the law does not permit that defendant to justify the one of which complaint is made by proving the truth of the other. Nor does the law permit a defendant to lead evidence of particular acts of misconduct on the part of the plaintiff in mitigation of damages where the defendant has failed to justify the libel complained of: see Speidel v.

Plato Films Ltd. [1961] A.C. 1090; but the two libels must be distinctly severable into distinct parts and, if they are not, the plaintiff cannot pick and choose between them: see Polly Peck Holdings Plc. v. Trelford [1986] Q.B. 1000, 1025.

The question whether a particular charge of wrongdoing carries a general charge may depend upon the context in which the words appear. Where the words are published in written form the writing conveys the context and the defendant is normally entitled to insist that the jury see the whole of the context. In this case the words were spoken in the course of a public meeting. It is common ground that the meaning which the jury might properly attach to the words might be affected by the context, for example by the form of a question to which the words were given in answer, or the general course of a speech in which the words formed a passage; but neither the plaintiff nor the defendant has pleaded reliance on any such context and Mr. Shaw for the defendant stated in this court that the defendant did not rely upon any unpleaded context.

Whether the words complained of were spoken, or were written, a party who alleges that the meaning of the words is affected by the context in which they were written or spoken must, in my judgment, give notice by his pleading of that fact and must state what the relevant context was. Where the words were spoken there may be a conflict of evidence as to what was said before and after the words complained of and, therefore, as to what the context was in which the words were said. The obligation to plead the context, if reliance is to be placed upon it for the purposes of supporting a contention as to what the meaning of the words was, is imposed, in my view, by R.S.C., Ord. 18, r. 7(1):

"Subject to the provisions of this rule, and rules 7A, 10, 11 and 12, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits."

The requirement is also covered, so far as concerns the defence of a defendant, by the provision in Ord. 18, r. 8(1):

"A party must in any pleading subsequent to a statement of claim plead specifically any matter . . . (b) which, if not specifically pleaded, might take the opposite party by surprise . . ."

It therefore seems to me that the court on this application cannot speculate as to what the context might be shown to have been in which the words in question were used beyond the matters to which reference is made in the pleading.

Reference, however, should be made to the manner in which this matter of the context arose in the course of this appeal. I did not understand from Mr. Shaw that consideration on behalf of the defendant had been given to the known context in which the words were used or that the defendant was intending expressly to abandon any question of reliance upon such context. Indeed, I got the impression that until the matter was raised by Russell L.J. in the course of argument direct attention had not been given to the context. It appeared that the parties were not in possession of a transcript of the meeting, if any recording existed from which a transcript might be made. I am not, of course, suggesting that there was some relevant context to which either side

could usefully refer but, just as the plaintiff has amended his pleading, so the defendant might on his part, provided the application was made in due time, seek leave to amend his defence in order to allege what the context was if the evidence to justify such an application were available. In other words, the decision which I think this court should make upon this appeal is based upon the material contained in the pleading as it now stands.

The question as to the width of the conceivably proper meaning of the words used is therefore to be answered on the material before this court by reference to the words themselves spoken at a public meeting in support of a candidate in a by-election and spoken of a councillor, who was the leader of the controlling majority of the council. If the court is to say that these words, by their own force and in that context, may properly be held to contain a general charge of squandering public money, then it seems to me that we would be very close to holding that it is open to a jury, at least with reference to a person holding elective office and of known political views, to find that any specific charge against him of wrongdoing, based upon stated specific facts, imports a general charge of preceding similar wrongdoing which may be justified by different specific facts. To take an example from the other side of the political debate, a specific charge of cruel and damaging cuts in public spending, based upon a stated reduction of funds to a particular cause or body, could, without support from the context, and by the force of the particular words alone be held to contain a charge of other preceding allegedly cruel and damaging cuts, based upon other reductions of funds to other causes and bodies.

For my part, I consider that the law should not, and does not, permit such wide discretion to a jury in selecting the meaning of words used. I do not, of course, assume or suggest that in this case any charge or allegation has been made upon a false factual basis. The question of the cost of the overprinting is in issue and will be decided by the jury together with the primary question whether the words used were defamatory at all. But if in such a case as this a defamatory charge has been made upon a false factual basis then, unless a wider meaning or a more general charge can fairly be gathered from the words used, or from the context, it is important to the even handed conduct of such trials that it should not be open to a defendant, who has mistakenly charged the plaintiff with some form of alleged misconduct, be it squandering of public money or the making of damaging cuts, when there has been in fact no such squandering or no such cuts in funds, to defend the specific claim in defamation by reference to any other alleged examples of squandering or of cuts, merely on the ground that they are allegedly true examples in the past conduct of the plaintiff of the alleged kind of wrongdoing of which a specific charge has been made. A plaintiff ought to be able, if he can, to prove the untruth of a specific mistaken or false charge without having to face the burden of a trial directed to any number of preceding incidents of expenditure or of cutting expenditure in which he was concerned.

Mr. Shaw argued that to hold that the words cannot properly bear the wider meaning would be to prevent ventilation at the trial of the real issue, namely whether or not there had been squandering of money, left right and centre, by the council under the leadership of the plaintiff. He said that assistance could be found in support of the plaintiff's contention that the words import a sting of a general nature from the decision of

the court in Khashoggi v. I.P.C. Magazines [1986] 1 W.L.R. 1412; and that two cases, London Computer Operators Training Ltd. v. British Broadcasting Corporation [1973] 1 W.L.R. 424 and Williams v. Reason (Note) [1988] 1 W.L.R. 96 were "on all fours with this case."

In my view, on the essential question as to the possible meanings of the words used in this case, those cases relied upon by Mr. Shaw provide little if any assistance, and that is not surprising because the relevant principle applicable in this case is not in issue between the parties and the application of the principle by the court to one set of facts can rarely be of direct assistance in applying it to different facts. A brief examination of these cases will be sufficient. In Khashoggi's case the publication contained various express allegations about the sexual behaviour of the plaintiff but she complained in her proceedings of one allegation only of an affair with a named man. It was contended for the defendants that they could properly claim to justify the sting of the libel, for the purposes of the principle in Bonnard v. Perryman [1891] 2 Ch. 269, so as to prevent the grant of an interlocutory injunction, by proof of conduct showing sexual promiscuity although they could not prove the allegation with reference to the named man. This court upheld that submission and thereby held, as I understand it, that it would be open to the jury on the facts of that case to find that the meaning of the words used in the publication as a whole was that contended for by the defendants. The application of the principle by the court to the facts of that case seems to me to be of no assistance in answering the question in this case. There was here no allegation of wrongdoing, additional to the specific charge in issue, capable of supporting a wider meaning.

Next, as to the London Computer Operators Training Ltd. case [1973] 1 W.L.R. 424, the proprietors of an establishment which claimed to train computer operators claimed damages for libel contained in a radio programme, broadcast by the defendants, which was an expose of the training provided, and included comments that it was a financial racket; that the aptitude test and final certificate were bogus; and it referred to the founder of the school, who was not a plaintiff in the action, with the words: "Is this the sort of man to run a computer school?" The defendants, who had pleaded justification and fair comment, applied for leave to amend their defence by adding to the particulars of justification details of previous convictions of the founder of the school for offences of dishonesty not connected with the running of the school. The defendants were held by this court to be entitled to plead those convictions on the ground that the programme was capable of being interpreted by a reasonable jury as meaning that the company was being run by people of questionable honesty; and, as that was a conceivable meaning, evidence of the convictions should be before the jury. That case is another example of the application of the principle that any facts may be proved which are relevant to justify the sting of the libel according to any meaning which the jury may properly attach to it; but there is, I think, no particular assistance to be derived as to the factors by reference to which the court is to decide whether, in the absence of a relevant context, it is properly open to a jury to hold that a specific allegation of wrongdoing contains for those purposes a general charge of such wrongdoing.

Finally, as to Williams v. Reason (Note) [1988] 1 W.L.R. 96, which was decided by this court in November 1983 (Stephenson, O'Connor and Purchas L.JJ.) the libels were published in two articles in the "Daily

Telegraph" in 1979. They alleged that the plaintiff had infringed his amateur status by writing a book for money. One article contained the heading "Board should act now to halt Shamateurism"; and, in addition to reference to the writing of the book, the article said, at p. 101:

"I have not met anyone . . . who does not believe that the [plaintiff's] case has infringed at least three of the intentions of the international board's amateur principles. I have no doubt that Rugby Union football in Britain and in at least two other countries in Europe is rapidly approaching the state of shamateurism which so disfigured the top level of so-called English amateur soccer for many years."

The plaintiff by his statement of claim alleged that the words in the article meant that the plaintiff: (i) had infringed his amateur status by writing a book; (ii) was guilty of "shamateurism"; (iii) had played an international match against England though he knew that he was a professional; and (iv) had by his conduct brought disgrace and disrepute on the game of rugby and his country."

There was a dispute of fact at the trial as to whether the plaintiff had or had not written the book for money, intending to keep the money which was paid to him, or whether he had always intended to give the money to charity and had not changed his intention about keeping the money after publication of the first article in the "Daily Telegraph". The jury held the publications to have been defamatory and awarded damages. The judgment and verdict were set aside and a new trial ordered for reasons not relevant to this case. The defendants were given leave to amend the defence to allege, as particulars of justification, not new facts relevant to the alleged writing of a book for money but facts relevant to the taking of money for wearing the boots of a named boot manufacturer; and leave was granted on the grounds set out in a passage on which Mr. Shaw placed particular reliance: perStephenson L.J., at p. 103:

"I conclude . . . that [it] is right . . . that the sting of the libel here is 'shamateurism,' the charge, still tied to his book but nevertheless carrying with it a charge of hypocrisy and deviousness, that the plaintiff was a professional while claiming to be an amateur; that the evidence that alleges that the plaintiff regularly took boot money, if accepted, would prove that he had by reason of regulation 5 of the board's regulations no amateur status to infringe or lose at the time when he wrote the book because he had already lost it by taking boot money; and that a jury that heard evidence that he had accepted boot money might have been influenced into finding that he had, on any interpretation of the regulations, infringed them by writing a book for money that he never intended to give to charity until the publication of the first of Mr. Reason's articles in the 'Daily Telegraph'."

Again, in my view, that case was an example of the application of established principle to the widely varying circumstances of particular cases; and, again, I can derive little assistance from the case in the decision of the central question to this case. I note, however, that Stephenson L.J., with whose judgment both O'Connor and Purchas L.JJ. in substance agreed, said, at p. 103:

"I have not found it easy to decide whether the evidence of boot money is relevant to the words that Mr. Reason wrote of the plaintiff, understood in any meaning that they are reasonably capable of bearing."

For my part I regard that case as far stronger than this for the purpose of finding in the words used a general charge - in that case of "shamateurism," by reference to a particular example, namely the writing of a book for money.

As I have said, it is not to be expected that much assistance will be capable of being derived from the decision as to the reasonably possible meaning of one set of words for the purpose of deciding the meaning of another set of words. As Lord Reid said in Lewis v. Daily Telegraph Ltd. [1964] A.C. 234, 260: "What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression." I have reached the clear conclusion that the wider meaning, now abandoned by the plaintiff but put forward by the defendant, is not a meaning which the jury could properly apply to the words used. I have had very much in mind the view of Caulfield J., who has wide experience in defamation cases, and I have been slow to reach a conclusion different from that expressed by him. But, in the end, I have found myself unable to share his view.

The clear impression which I have formed of these words, in their context as now before us, is that the ordinary man envisaged by Lord Reid would regard the defamatory charge in the words used, if there was any, as limited to the spending of stated sums on the stated project. Next, the defamatory charge, if there was any, was not of a stated crime or of a form of moral turpitude but was - by no means unimportant or trivial but of a different order, in my view - of causing the spending of public money to such an extent and for such a purpose that the spending was wholly unjustified. The fact that a person is by his social judgment moved to cause to be made an unjustified expenditure - if that should be proved - upon publicising an anti-nuclear policy does not, in my view, suggest that he has in the past been moved to make unjustified expenditure on different projects or for different social purposes, or is of such a character that he is likely to have so acted.

Further, I have tested the point in the way suggested by Mr. Newman. If it should have been proved that the defendant had incorrectly asserted that £50,000 had been spent on the idea of printing the anti-nuclear caption on council stationery; and if the jury should have found that the words used were defamatory in their context, including therein the assertion that the expenditure was a damn fool idea, it would in my view have been unjust for the jury to have awarded damages on the basis that by the words used the defendant had generally charged the plaintiff with the squandering of public money in the plaintiff's prior direction of expenditure of public money by the council in all or any part of its functions. The fact that the defendant now asserts the wider meaning, in order to be allowed the opportunity to try to prove other distinct items of public expenditure which he wishes to try to prove to have amounted to squandering of public money, does not, in my judgment, alter the case or widen the possible meaning of the words used.

For my part, therefore, I would allow this appeal and direct that sub-paragraphs (7) to (19) inclusive of paragraph 6 of the defence be struck out.

RUSSELL L.J. I agree. As Ralph Gibson L.J. has pointed out, I was concerned, during the submissions of counsel, that the context in which the words were spoken by the defendant might well have a bearing upon the conceivable meanings that the words are capable of bearing. On the one hand the allegation might have been an isolated and self-contained one, confined to the assertion that £50,000 had been spent on the overprinting on schools' stationery, with the derisive comments about the activity. If such were the reality it is impossible, in my judgment, to give the words a meaning wider than that now contended for by the plaintiff. On the other hand the offending words might well have formed a part or illustration of a much broader based political attack upon alleged maladministration at the expense of ratepayers by the local authority of which the plaintiff was the leader. If this were the true context in which the words were spoken, then I think it is plain that a conceivable meaning of the words used could be as is now contended for by the defendant. This seemed to be the view of Caulfield J. when he said in his judgment that a conceivable meaning was: "that the plaintiff was irresponsible in squandering public money and [the defendant] was giving an example in the over-printing of the school stationery." (My emphasis). Unfortunately neither counsel could assist as to the context in which the words were spoken, and we are left with the pleadings. They are silent as to context.

In these circumstances I am satisfied that, in the absence of a pleaded context, the court should not speculate, where to do so might lead to a defendant being permitted to prolong the hearing and to adduce a welter of evidence not relevant to the real issue for the jury's determination. Whilst recognising that the striking out of a pleading, or part of it, is a Draconian step, I do not shrink from it in this case so long as the pleadings do not assist in ascribing to the words a broader meaning than that which they bear when looked at in isolation.

In Lucas-Box v. News Group Newspapers Ltd. [1986] 1 W.L.R. 147, 151, Ackner L.J. said:

"It is axiomatic that the function of pleadings is to define the issues between the parties, so that both the plaintiff and the defendant know what is the other side's case, and thus everyone, counsel, judge and jury are able to focus upon the real nature of the dispute. Although to some it may seem a startling observation, we can see no reason why libel litigation should be immune from the ordinary pleading rules."

Mr. Shaw, on behalf of the defendant, told us that in libel the context was normally pleaded by a reference to the full material passage where a defence of justification and/or fair comment was raised. However, in his wide experience, he could not recall the context being pleaded in slander proceedings - certainly not as a matter of practice or convention by those practising extensively in this field.

For my part I can see no reason why slander should be different from libel, and the words of Ackner L.J. cited above seem to me to be entirely appropriate to both forms of defamation.

Like Ralph Gibson L.J. I must not be taken as suggesting that a context which would permit of a wider meaning than that pleaded by the plaintiff was present, but in my view if such is to be alleged it should be pleaded, and provided that the defendant makes his application to amend timeously in order to allege the appropriate context, the order of this court on this interlocutory appeal should in no way preclude the amendment being made.

I too, therefore, would allow this appeal and make the order proposed by Ralph Gibson L.J.

Solicitors: Finnis Christopher Foyer & Co. for Cooper Sons Hartley & Williams, Manchester; Peter Carter-Ruck & Partners.

[Reported by JAMES KELLY, ESQ., Barrister-at-Law]