Patterson v ICN Photonics Ltd.

This is a defendant’s appeal against a decision by Sir Oliver Popplewell made on 22 July 2002 in the course of what began as libel proceedings.

The claimant is the manufacturer of the Nlite laser treatment system which uses lasers to lessen the appearance of wrinkles. The defendant is a medical practitioner who also practices as Woodford Medical Services.

The proceedings arose out of a letter sent on or about 5 February 2002 by the defendant to customers of the Elite Health and Beauty Salon in Leamington Spa, Warwickshire. In that letter the defendant made certain statements about the Nlite laser, and in the original Particulars of Claim it was alleged that certain of the words used were defamatory of the claimant.

The defendant, Dr Patterson, applied for a ruling that the words complained of were not capable of bearing any meaning defamatory of the claimant and for an order that the claimant’s statement of case be struck out. By the time the matter came on for hearing before Sir Oliver Popplewell, the claimant had made an application to amend the Particulars of Claim in the form of an attached draft. Apart from amending the pleaded libel claim, the amendment also added a claim for slander of goods, so as to allege that the words falsely and maliciously disparaged the Nlite laser system. The judge gave leave for those amendments to be made and dealt with the defendant’s application on that footing. He rejected that application in respect of the defamation claim and also ruled that the words used were capable of amounting to a disparagement of the goods.

The defendant now appeals, principally against the ruling on the defamation claim but also against part of the ruling on the slander of goods claim. There is now no issue on the latter, and I shall deal briefly at the end of this judgment with the position which has been agreed between the parties.

The material part of the letter written by Dr Patterson reads as follows:

“Woodford Medical is withdrawing from Elite Health and Beauty.

I have discovered that the owner of Elite has been underhand and disloyal towards me over the last few months and I have therefore decided to withdraw my services from this salon.

As a leading aestheticdoctor I am not prepared to risk my reputation in being associated with use of the Nlite laser. The distributors of this laser have recently been declared bankrupt and in my opinion the level of consumer satisfaction with this system is very low. It is indeed surprising that Warwickshire Health Authority have allowed its introduction into the area without any medical supervision.

I remain committed to providing high quality aesthetic treatments that show significant results. Many of you have expressed an interest in continuing to see me for ongoing treatments.

I regularly hold clinics in the following areas…”

and certain areas are then identified and a telephone number is provided.

The issue as to the pleaded meaning, as in the draft for which leave was given by the judge, in the defamation claim focused on part of paragraph 5 of the Particulars of Claim. That read as follows:

“5.

In their natural and ordinary meaning, the words meant and were understood to mean that the Claimant

…

(2)

manufactured a machine, the Nlite laser, which it knew or ought to have known:

(a)

should only be used with proper medical supervision yet it permitted (or failed to prevent) a salon from using the equipment without such medical supervision to the detriment and potential harm of those who used it;”

The learned judge on the defamation issue referred to a number of authorities which established that, where the words complained of refer to goods manufactured, distributed or sold by the claimant, those words will not necessarily be defamatory of the claimant. As was said by Morritt LJ in Hope Technical Developments Limited –v- British Broadcasting Corporation (unreported) 1993/6587/E, 31March 1995.

“The question is whether here there is an imputation on the maker and not the product.”

Perhaps more precisely when an application for a ruling on meaning is made under CPR Part 53 PD para. 4, the issue is whether the words are capable of bearing a meaning which is defamatory of the claimant and not merely disparaging of the product.

On this aspect of the case, the judge said this at paragraph 17 of his judgment:

“I think it is important, as I have indicated, to look at the effect that this letter would have on somebody who had either had treatment or might have treatment and it seems to me that to suggest to somebody who has had the treatment that it ought not to have been introduced into the area without any medical supervision is capable of a suggestion that what has been manufactured is either unsafe or likely to be unsafe and therefore to reflect on the reputation of the manufacturer. It seems to me that it is a matter which is capable of being defamatory of the claimant and I so rule. Whether they will so find is a matter for them.”

It will at once be appreciated that in holding that the words were capable of meaning that the laser was unsafe or likely to be unsafe the judge was, on the face of it, departing from the meaning pleaded by the claimant at paragraph 5 of the amended Particulars of Claim. That pleaded meaning was not that the laser was unsafe in all circumstances, necessarily unsafe, or inherently unsafe as it has been put during argument before us. It was part of the pleaded meaning that the laser should only be used with proper medical supervision.

However, the transcript of the proceedings before Sir Oliver Popplewell reveals that counsel for the claimant suggested that the word “unsafe” should be used as a shorthand for the pleaded meaning of “unsafe if not medically supervised.” An earlier passage in his judgment points to the judge using the word “unsafe” as such a shorthand, and it was certainly not contended before us that the words in the letter were capable of meaning that the laser was unsafe in all circumstances. It seems to me that the judge was using the word “unsafe” as such a shorthand at paragraph 17 of his judgment.

The issue on this appeal is in reality quite a short one. Both sides have focused on the meaning as pleaded at paragraph 5 of the Particulars of Claim, and neither side has suggested that the words are capable of any other meaning which could be defamatory of the claimant. The issue therefore becomes whether the words are capable of that meaning. In essence, the appellant contends that the words in the letter are not reasonably capable of an inference that the manufacturer of the laser is responsible for it being introduced into Warwickshire without medical supervision. The respondent contends that the words are capable of such an inference. Both parties regard the crucial sentence as being the one which reads “It is indeed surprising …”, while recognising of course that the sentence has to be read in context and that the letter has to be read as a whole.

On behalf of the appellant, Mr Monson submits that the allegation in the pleading that the words meant that the manufacturer knew or ought to have known that the laser should only be used with proper medical supervision but permitted or failed to prevent a salon from using it without such medical supervision is the vital part of the alleged meaning, required to render the words defamatory of the claimant. That part of the pleading recognizes that an inference of responsibility on the part of the manufacturer for unsupervised use is necessary to make the words defamatory. That is because there is nothing reprehensible about manufacturing medical equipment which should only be used under medical supervision. The alleged reflection on the manufacturer’s conduct or competence therefore depends on that part of the pleaded meaning. But, says Mr Monson, the words used in the letter simply are not reasonably capable of such a meaning. The manufacturer is nowhere named or referred to. On the contrary, the Warwickshire Health Authority is expressly identified as being the entity responsible in the sentence regarded as being at the heart of this case. The words are not reasonably capable of meaning that the manufacturer is responsible for the salon using the laser without medical supervision or for it being introduced into Warwickshire for such use. It is submitted that it is straining the language of the letter to identify such a meaning as one of which these words are capable.

For the respondent, Mr Nicklin emphasises a number of authorities which are to the effect that the Court of Appeal should be slow to interfere with a ruling by the first instance judge as to the range of meanings of which the words are reasonably capable. He relies upon Hinduja –v- Asia T.V. Limited [1998] EMLR 516, at 523; Geenty –v- Channel Four Television [1998] EMLR 524 at 532; and Cruise –v- Express Newspapers plc [1999] Q.B. 931 for that proposition. Moreover, this court should be even less willing to intervene where the ruling which is challenged is one to the effect that the words are capable of bearing the defamatory meaning alleged than where it has been ruled that they are not so capable: see Cruise and also Berezovsky –v- Forbes Inc. [2001] EMLR 1030, where at para. 16 Sedley LJ described the exercise of ascertaining the meaning of which the words are capable as being “an exercise in generosity, not in parsimony.”

It is contended by Mr Nicklin that the judge identified the correct legal principles and applied them in an inclusive, as opposed to an exclusive, ruling. Therefore this court should not seek to second-guess the judge on what is largely a matter of impression. The jury should be left to arrive at its own decision.

As for the words themselves, the respondent argues that it is implicit in them that the manufacturers knew that the laser needed medical supervision and that they had sold it to people who were unfit to use it. Consequently the words are capable of meaning that the manufacturers are responsible for seeing that it is used only with medical supervision but have failed in that responsibility. The fact that the sentence most relied on refers to the Warwickshire Health Authority does not exclude the possibility of a defamatory reference to the manufacturers.

For my part, I fully accept the principles as to this court’s approach to a judge’s ruling on meaning as summarised by Mr Nicklin. The matter was succinctly put by Lord Phillips, MR, in Gillick –v- Brook Advisory Centre [2001] EWCA Civ 1263 at paragraph 5 and 6:

“5.

The Court of Appeal will always be very reluctant to reverse an interlocutory finding of a judge at first instance that the words alleged to be libellous are capable of bearing the defamatory meaning alleged (see Hinduja v Asia TV Limited [1998] EMLR 516, 523 per Hirst LJ and Cruise v Express Newspapers [1999] QB 931, 936 per Brook LJ).

6.

Where the judge has held that words are not capable of bearing a defamatory meaning, with the result that the issue will never go to a jury, the reluctance to intervene will be less marked (see Hirst LJ in Geenty v Channel Four Television [1998] EMLR 524 at 532).”

As Lord Phillips indicates at paragraph 6, the reason for being readier to intervene where the judge below has ruled the words incapable of bearing a defamatory meaning is that, if the ruling stands, a jury will never have the opportunity of reaching a view as to the natural and ordinary meaning of the words. Those principles do not, however, prevent this court from intervening in an appropriate case, where it is satisfied that the judge has clearly gone wrong as a matter of approach or has reached a conclusion which is patently unsustainable.

Indeed, it is to be observed that in Mapp –v- News Group Newspapers Limited [1998] Q.B. 520, where the lead judgment was given by Hirst LJ, as it was in the Hinduja and Geenty cases which spelt out the need for self-restraint on the part of the appellate court, the Court of Appeal did in fact decide that the judge of first-instance had erred in his ruling. That was so, even though the judge’s ruling had been an “inclusive” one, to the effect that the words complained of were capable of the meaning alleged. This is merely an illustration of the fact that there will occasionally if infrequently be cases where this court is satisfied that it should intervene in such a case. No self-denying ordinance can absolve this court from its responsibility to act in such cases.

In so doing, it has to apply the well-established principles on the topic of meaning. They were summarised by Neill LJ in Gillick –v- British Broadcasting Corporation, page 272 as follows:

“(1)

The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once.

(2)

The hypothetical reasonable reader (or viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meaning are available.

(3)

While limiting its attention to what the defendant has actually said or written the court should be cautious of an over-elaborate analysis of the material issue.

(4)

A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of account, or an academic to the content of a learned article.

(5)

In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court are entitled (if not bound) to have regard to the impression it made on them.

(6)

The court should not be too literal in its approach.

(7)

A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.”

In Jones –v-Skelton [1963] 1 WLR 1362, 1370, a decision of the Privy Council, Lord Morris of Borth-y-Gest, giving the judgment of the Board, said in a passage which has been approved and followed a number of times, most recently by this court in Gillick –v- Brook Advisory Centres at paragraph 7:

“In deciding whether words are capable of conveying a defamatory meaning, the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation.”

In a case where the words complained of relate on the face of them to a product, the issue on an application for a ruling as to meaning is whether those words are capable of reflecting adversely on the manufacturer or his conduct of his business, as opposed to being disparaging merely of the product. As it was put by Cozens-Hardy, MR, in Griffiths –v- Benn [1911] 27 TLR 346 at 350, one has to ask whether the words are reasonably capable of conveying

“a personal imputation upon them, either upon their character or upon the mode in which their business is carried on.”

It is well-established that the words may be defamatory simply because they impute at least incompetence on the part of the trader or manufacturer in the way in which he runs his business: see Drummond-Jackson –v- B.M.A. [1970] 1 WLR 688. Nonetheless, the words have to be capable of conveying some such personal imputation.

With all these principles in mind, I turn to consider the facts of the present case. I accept that the crucial paragraph in the judgment below, paragraph 17 which is set out earlier in this judgment, is not entirely free from ambiguity. It may mean that to say that a product of this kind is unsafe unless used with medical supervision is, by itself, capable of being defamatory of the manufacturer. If so, then I cannot agree. Invasive equipment such as a laser may very well require medical supervision for its use and by itself such an assertion is quite incapable of being defamatory of the manufacturer. But that is not the interpretation of the words or of the judgment urged on us by the claimant. His contention is that the words in the letter are capable of meaning that the manufacturer has been responsible for its introduction into and use in Warwickshire without medical supervision.

If that was what was meant by the judge below, then I can readily accept that such an allegation is capable of being defamatory of the manufacturer. But for my part I find it impossible to see that the letter is capable of bearing any such meaning. Nothing in it suggests or implies that the manufacturer is responsible for such introduction or use. The owner of the salon is referred to, as are the distributors of the laser and the Health Authority, but not the manufacturer. No action on the part of the manufacturer is referred to. While the express reference to the Warwickshire Health Authority does not rule out an inference that someone else is also responsible, it does nonetheless point away from such an inference, and when that is coupled with a total absence of any reference in the letter to the manufacturer, whether by name or in any other form, then the end result can only be that no such inference could reasonably be drawn by a jury. One simply cannot get from these words an inference of responsibility on the part of the manufacturer. That would be a meaning which could only emerge as the product of a strained or forced or utterly unreasonable interpretation. The words are not reasonably capable of such a meaning.

It follows that I regard this as one of those unusual cases where this court should intervene. It is sufficiently clear-cut for it to be said that the judge’s conclusion is patently unsustainable. This case should proceed as a slander of goods case, not a defamation case.

As indicated earlier, there is no dispute as to what should happen on this appeal insofar as it concerns the slander of goods claim. Both parties are agreed that in paragraph 6(b) of the amended Particulars of Claim in the form approved by the judge, the words “unsafe and/or” should be struck out. That part of the pleading should simply read “was ineffective”. Since this is agreed, I do not propose to explain the reasoning behind this result.

For the reasons set out earlier in this judgment, I would allow this appeal.

I agree.

I also agree.