Norbrook Laboratories Ltd and Norbrook Laboratories (Ireland) Ltd (plaintiffs) v Smithkline Beecham (Ireland) Ltd t/a Smithkline Beecham Animal Health (defendant).
Practice and Procedure - Defamation - Slander of Goods - Series of innuendoes - Separate causes of action - Lodgment into court - Admission of liability - Rules of the Superior Courts, Order 22 Rules 1(3) and 1(5).
The High Court (before Mr Justice Peter Kelly); judgment delivered 18 May 1999.
Where allegations of defamation and slander of goods are made, it is possible to make a lodgment with an admission of liability to part of a plaintiff's claim, provided that the defendant makes the necessary admissions in its defence, and identifies, in the notice of lodgment, the particular allegations in respect of which the payment is made. The High Court so held in making an order giving directions that a payment into court, by the defendant, in respect of the plaintiffs' allegation of slander of goods and in respect of some but not all of the plaintiffs' allegations of defamation, would be a valid payment and would be in conformity with the provisions of Order 22 of the Rules of the Superior Courts.
Garrett Cooney SC and Robert Hastings BL for the plaintiffs; Rory Brady SC and Mark Sanfey BL for the defendant.
Mr Justice Kelly set out the facts of the case stating that the first plaintiff developed and manufactured veterinary products, including one known as Life Aid Extra, while the second plaintiff marketed, distributed and sold veterinary products, including Life Aid Extra. It was alleged that the defendant was also engaged in the manufacture and sale of veterinary products, including one known as Lectade Plus, and that it wrote, in January 1994, to all members of the veterinary profession in Ireland, in order to promote its product. The letter stated, inter alia: "Indeed a recently introduced competitor is seriously hypertonic thus running the risk of compounding the dehydration problem."
The plaintiffs took exception to the letter in general but in particular the words referred to above, claiming that the reference was designed to and did in fact disparage the plaintiffs' product, Life Aid Extra. They further alleged that the words in question were false and were published maliciously or recklessly and that they were calculated to denigrate the plaintiffs' product and so to cause pecuniary damage to the plaintiffs. The plaintiffs went on to claim damages for slander of goods and for libel.
The defendant alleged a bona fide belief and lack of malice on the part of the writer of the letter in suit and claimed qualified privilege. They specifically denied that the words complained of were understood to bear the meaning attributed to them by the plaintiffs, or any meaning defamatory of the plaintiffs. The defendant had been advised that it would be prudent to admit liability in respect of the allegation of slander of goods and in respect of certain of the allegations of defamation made by the plaintiffs. It had furthermore been advised to make a single lodgment into court in respect of those allegations. Counsel had advised that a lodgment should only be made in relation to some meanings of the alleged defamation set out the statement of claim and that a lodgment should not be made in respect of the other meanings contained in the statement of claim. In other words the defendant wished to admit to certain of the innuendoes and to make a lodgment in respect of them but to maintain its defence in respect of others.
The question before the court was whether or not it was open to the defendant so to do pursuant to the provisions of Order 22 of the Rules of the Superior Courts. The defendant's application was neither consented to, nor opposed by, the plaintiffs.
Order 22 Rule 1(3) of the Rules provides, inter alia, that in actions for libel or slander, money may not be paid into court under this rule unless liability is admitted in the defence. Order 22 Rule 1(5) provides that where money is paid into court in satisfaction of one or more of several causes of action, the notice shall specify the cause or causes of action in respect of which payment is made, and the sum paid in respect of each cause of action, unless the court otherwise orders.
Mr Justice Kelly referred to the recommendation of the Law Reform Commission, that the Rules of Court be amended so that a defendant in a defamation action be allowed make a payment into court without admission of liability. He noted that the rules in England and Wales had been similar but had been changed many years ago. It had been stated, in Fleming v Dollar 23 QBD 388, that the former English rule had been enacted to reverse the decision of the Court of Appeal in Hawkesley v Bradshaw 5 QBD 302. Mr Justice Kelly stated that he did not find any convincing reasoning to justify a differentiation between defamation and other tort actions when it came to a question of payment into court. Notwithstanding this however, the Rules of the Superior Courts had not been amended in this jurisdiction and he must give effect to them.
Mr Justice Kelly went on to state that even in 1889, the year in which Fleming v Dollar was decided, it was clear from the decision in that case, that a plea of justification, to a part of a divisible libel, was permissible. The case also seemed to accept that a libel might be divisible for the purposes of a lodgment into court, provided that the defendant furnished sufficient particulars of the parts of the libel in respect of which the lodgment was made. Mackay v Manchester Press Company 6 Times Rep 16 was further authority for such a proposition. Mr Justice Kelly stated that the question was: could it be said, when a plaintiff alleged a series of innuendoes, that each of them constituted a separate cause of action, allowing a lodgment to be made in respect of each one severally? Mr Justice Kelly answered the question in the affirmative by reference to Grubb v Bristol United Press Limited [1963] QB 309 and Pedley v Cambridge Newspapers Limited [1964] 1 WLR 988.
Having considered these authorities, Mr Justice Kelly stated that the position in this jurisdiction was as follows. Firstly, lodgment in court could not be made in defamation proceedings unless liability was admitted in the defence. Secondly, there was no objection in principle to a defence of partial justification in respect of an alleged defamation; such being so, there was no objection in principle either to a defendant making a lodgment with an admission of liability in respect of a defamation in its natural and ordinary meaning and some of the innuendoes alleged or alternatively to some only of the innuendoes alleged. Thirdly, each of the innuendoes constituted a separate cause of action for the purposes of Order 22 Rule 1 (5).
Mr Justice Kelly went on to state that the practical effect of this was that in defamation proceedings it was possible to make a lodgment with an admission of liability to part of a plaintiff's claim, i.e. the natural and ordinary meaning plus some of the innuendoes or some of the innuendoes alone, provided that the defendant made the necessary admissions in the defence, and identified, in the notice of lodgment, the particular allegations in respect of which the payment was made.
Mr Justice Kelly therefore acceded to the defendant's application by directing that a payment into court, by the defendant, in respect of the plaintiffs' allegation of slander of goods, and in respect of some, but not all, of the plaintiffs' allegations of defamation, was a valid payment and in conformity with the provisions of Order 22 of the Rules of the Superior Courts, provided that the notice of such lodgment specified the particular allegations in respect of which payment had been made and that the relevant admissions were made in the defence. Furthermore, in light of the views of the Court of Appeal in Pedley v Cambridge Newspapers Limited, the judge was of the opinion that there should be a single payment made in respect of those parts of the plaintiffs' claim in respect of which there was to be an admission of liability rather than a separate sum in respect of each allegation.
Solicitors: Arthur Cox (Dublin) for the plaintiffs; Whitney Moore & Keller (Dublin) for the defendant.
