MANU/UKWA/0850/2002

Equivalent Citation: [2002]4All ER494, [2002]4All ER497, [2002]EWC A C iv 939, [2002] WLR 2982, [2002] 1 WLR 2982

ENGLAND AND WALES COURT OF APPEAL (CIVIL DIVISION)

Case No: A2/2002/0003
Decided On: 04.07.2002
McManus & Ors v. Beckham
Hon'ble Judges:
LORD JUSTICE WALLER LORD JUSTICE CLARKE and LORD JUSTICE LAWS
Counsels:
James Price QC; Mr Jonathan Barnes (instructed by Messrs Richards Butler) for the
Claimants/Appellants Desmond Browne QC; Mr Justin Rushbrooke (instructed by Messrs
Lee & Thompson) for the Defendant/Respondent
JUDGMENT
Lord Justice Waller:
1. The claimants allege that on 26th March 2001 the defendant came into their shop and
in a rude, loud and unreasonable way advised the three customers present that the
autograph on a photograph of her husband, David Beckham, was a fake. They allege
that the effect of what she also said was that the claimants habitually sold memorabilia
with fake autographs, and that she was advising customers not to buy the same. They
further allege that the incident got considerable press coverage, and that as a result of
that coverage their business has suffered a dramatic down turn.
2. The question raised by this appeal is whether the claimants are entitled to rely on the
press coverage in establishing the loss they say they suffered. The defendant suggests
not and she applied to strike out those paragraphs of the particulars of claim in which
the press publication and the losses said to be flowing therefrom are pleaded. His
Honour Judge Previte QC, sitting as a High Court judge, by judgment dated 28th
November 2001 held that the paragraphs should be struck out, and this is an appeal
from that decision.
3. The judge relied on various grounds. First he ruled that the newspaper articles relied
on did not "repeat the slander" and on that ground alone would have struck out the
paragraphs. Second he held that in any event the publications must have resulted from
the independent act of a third party for whose acts the defendant was not in law
responsible. Third he held that, since the claimants could not establish either that
representatives of the press were present when she spoke the words or that she knew a
particular publisher would repeat her words to the media, the paragraphs should be
struck out.
4. The Particulars of Claim made the following allegations :-
"4. On 26th March 2001, at the Shop, the Defendant spoke and published to the
Third Claimant and Mr Gordon Philip Joseph Cook and Mrs Sandra Theresa
Phelps and two unidentified female customers, all of whom were present in the

15-05-2021 (Page 1 of 17) www.manupatra.com National Law University Jodhpur

Shop at the material time, of and concerning the Claimants and each of them
and calculated to disparage them and/or to cause pecuniary damage to them in
the way of their business words defamatory of them as attributed to her below:
Defendant ("VB") "Excuse me but do not buy any autographs from this shop,
they are all fakes. That is not my husband's signature out there."
....
(It is unnecessary to set out the whole quotation but it ends)
....
'VB' "I just don't want to see you people being ripped off."
5. The Defendant's publication of the words complained of foreseeably led to
extensive media coverage, repetition and republication of the words complained
of and/or their sting, including articles published on page 19 of the "Daily
Mirror" for 28th March 2001 and at www.mirror.co.uk entitled, "Posh goes
stropping - BECK'S 'FORGERY FURY', atwww.peoplenews.com for 29th March
2001 entitled, "Posh Spice in feud with shopkeeper - Owner fears her rant could
ruin business", on page 13 of the "News of the World" for 1st April 2001
entitled, "POSH HAS ANOTHER BOOB JOB", on page 5 of the "News Shopper"
for Kent for 4th April 2001 entitled, "BLUEWATER: Family business may take
legal action - Posh rows over signed picture and on page 11 of the "Sunday
Mirror" for 8th April 2001 entitled, '"Victoria Wreck 'em'" and between dealers,
collectors and other individuals in the specialist celebrity autograph
memorabilia market.
6. In their natural and ordinary meaning the said words or some of them meant
and were understood to mean that in the course of conducting their business
the Claimants were and would continue to be in the habit of dishonestly and
fraudulently ripping off their customers by knowingly selling fake autographs.
9. By reason of the publication of the words complained of the First, Second
and Third Claimants have been seriously injured in their personal reputations
and business reputations and goodwill and have suffered distress and
embarrassment and the First and Third Claimants, who both suffer from stress
related illnesses, have had their respective mental and physical symptoms
aggravated. The Fourth Claimant has been seriously injured in its business
reputation and goodwill. Accordingly, the Claimants and each of them have
suffered loss and damage.
PARTICULARS OF SPECIAL DAMAGE
9.1. . .
9.2. . .
The Business has lost profits and gains that had it not been for the publication
of the words complained of it would otherwise have acquired and has suffered a
general loss of business. Based on a projected turnover on the basis of the
Business' experience to the end of March 2001 the Business' effective lost

15-05-2021 (Page 2 of 17) www.manupatra.com National Law University Jodhpur

 turnover for the four months immediately following publication of the words
complained of (April to July 2001 inclusive) amounted to £37,225. Losses have
continued on a daily basis and the Claimants will provide full particulars of their
claim under this head when the same become available.
11. Further or alternatively, in support of their claims for damages and/or in
aggravation of damages the Claimants will rely on the following facts and
matters:
Paragraphs 3 and 5 above are repeated. The Defendant routinely and
assiduously courts publicity in all forms of media in relation to all aspects of
her professional career and many aspects of her private life. As the Defendant
well knew and could and did foresee her publication of the words complained of
was likely to come to the attention of the national and local media, including in
particular the tabloid press (in both its paper and Internet versions) and
Internet bulletin boards, and was likely to be reported widely in such media in
eye-catching and sensational terms and/or repeated in the specialist celebrity
autograph market. Further or in the alternative it was the natural and probable
consequence of the Defendant's publication of the said words that reports of
them would appear in the media and/or be repeated within the specialist
celebrity autograph market.
....
....
....
. . . ."
5. Paragraphs 5, 9.3 and 11.1 are the paragraphs struck out by the learned judge.
6 . The judge's approach was to start by considering whether the articles relied on
"repeated the slander". He quoted in full the various articles. The first article in point of
time was in the Daily Mirror of 28th March 2001, and was in the following terms:-.
"Posh goes stropping
BECKS 'FORGERY' FURY
SHE'S turned shopping into an art form . . . so when you're on the other side of
the counter, Victoria Adams is one customer you don't cross.
We hear Posh Spice launched a furious four-letter tirade against a hapless
assistant after she discovered the shop was selling what she believed to be fake
autographs of her husband David Beckham.
The superstar singer was out with her mum Jackie and baby son Brooklyn at
the Bluewater Shopping Centre, in Kent, when she spotted the signed pictures
of the Manchester United and England star in the autograph shop, GT
Recollections. The multi-millionaire went in to have a peek, and after taking a
closer look, launched into a blistering rant, claiming the signatures were
nothing like wot 'im indoors does.
The brave assistant said the £65 signed snaps were the real McCoy - which led

15-05-2021 (Page 3 of 17) www.manupatra.com National Law University Jodhpur

 to another volley of expletives.
Victoria, 26, remained unconvinced and started telling other customers not to
buy any of the autographs because they were fakes.
She told bemused shoppers: It's so unfair on parents who spend a lot of money
buying these for their children, and they're not the real thing.
"They shouldn't be allowed to get away with this." When we contacted the store
they insisted they weren't selling fakes.
Chap
Manager Tim McManus said: "I bought these off a chap who collects
autographs. He is the most reputable collector I know of. She seemed very
upset, claiming it wasn't his signature and said some uncomplimentary things
about us. We asked her to leave us a number so we could check it out, but she
said she didn't have time.
She said she knows what her husband's signature like, but it was explained to
me that what he does now is not a full signature, but just a squiggle. I don't
know if Victoria was aware of that or not.
I've removed the one she complained about and intend to contact David.
I want to apologise for upsetting her, but I also want to resolve this in a
respectful and friendly atmosphere.
But she wasn't very respectful in the shop, in all honesty. She was very
aggressive . . . but this is a small family business and we like all our customers
to be happy."
7. The judge held that that article did not repeat the slander because the words were
not a general allegation of fraudulent selling, because a reasonable reader would
understand simply that Mrs Beckham had detected what she believed to be a fake
signature on a photograph of her husband and warned customers against buying
photographs of her husband which bore fake signatures. He formed similar conclusions
in relation to all the other articles save the News Shopper. In relation to the article in
the News Shopper the judge said this:
"20. News Shopper
This article alleges that Victoria Beckham told shoppers at the claimants' shop
that a "signed photo of her husband David" and "other memorabilia" are "not
the real thing". The article quotes Mr Tim McManus as saying that "Victoria
came into the shop and advised people not to buy anything, saying the picture
of David was false, and all the other items in the shop were fake" and
"Someone of her profile saying bad things about our company and all the
merchandise in our shop, not just about David, could ruin us." In my view a
reasonable reader would understand these words to mean that the defendant
had made general allegation of fraudulent trading about the claimants' business
and had said that a signed photograph of David Beckham was not genuine. In
my view the words attributed to the defendant in this article, in the context of
the words attributed to Mr McManus, are reasonably capable of being
understood to bear the meaning complained of. That meaning derives partly

15-05-2021 (Page 4 of 17) www.manupatra.com National Law University Jodhpur

 from the words attributed to the defendant and partly from the words attributed
to Mr McManus. The words attributed to Mr McManus obviously can not
constitute a repetition of words spoken by the defendant. The words attributed
to the defendant are not a repetition of the words complained of. The words
attributed are different words bearing a similar meaning to the meaning
complained of. In my view that does not constitute repetition."
8. Mr Price QC, representing the claimants, suggested to the judge that this first ruling
might be cured by the claimants making an amendment to the pleading as to the sting
of the original slander, including at least an imputation that the claimants were
habitually selling memorabilia with fake David Beckham autographs. The judge ruled
that that should be considered if a properly drafted amendment was forthcoming. An
amendment has been put before us.
9. The judge then went on to consider separately the question of causation and natural
and probable or foreseeable consequence. In relation to causation he ruled that the
absence of any averment as to causation was fatal to the claimants' case. He ruled that
the claimants do not and could not on the facts of the case aver that the publication of
the articles or the repetition in the trade was caused by the defendant. Those
publications must have resulted from the independent act of some third party for whose
act the defendant is not in law answerable. He then quoted the following from Slade L J
in Slipper v BBC [1991] 1 QB 283 at page 301:
"Prima facie the court will treat the unauthorised repetition of a libel as a novus
actus interveniens breaking the chain of causation between the original
publication and the damage suffered by the injured party through repetition or
republication".
10. In relation to natural and probable and foreseeable consequence the essential
finding of the judge was:
"to render the defendant liable for repetition and any subsequent financial or
other loss it would, in my view, be necessary to allege and prove either that the
defendant knew that representatives of the media were present when she spoke
the words or knew that a particular publishee would repeat her words to the
media. In this case there is no such evidence. Without evidence to establish
causation on the part of the defendant I find it difficult to see how the claimants
could possibly establish that repetition was the natural and probable
consequence of speaking the words. On this ground, as well as on the grounds
of no repetition and no evidence of causation, I accede to the defence's
application to strike out paragraphs 5, 9.3 and 11.1 ...."
11. It is useful to start with a statement of general principle. Gatley on Libel and
Slander 9th edition paragraph 6.30 puts the general principle in this way:
"Where a defendant's defamatory statement is voluntarily republished by the
person to whom he published it or by some other person the question arises
whether the defendant is liable for the damage caused by that further
publication. In such a case the plaintiff may have a choice: he may (a) sue the
defendant both for the original publication and for the republication as two
separate causes of action, or (b) sue the defendant in respect of the original
publication only, but seek to recover as a consequence of that original
publication the damage which he has suffered by reason of its repetition, so

15-05-2021 (Page 5 of 17) www.manupatra.com National Law University Jodhpur

 long as such damage is not too remote. The cases do not always distinguish
clearly between the two situations and in many cases it will make no practical
difference whether the defendant's liability is based upon one rather than the
other. However, it is clear that the second principle is wider than the first:
where the defendant showed a television film defamatory of the plaintiff, the
plaintiff was allowed to rely on the effect of newspaper reviews of the film as
damage flowing from the broadcast of the film but the differences between the
film and the reviews were such that he could not have relied on the reviews as
amounting to a republication of the film. There may also be differences between
the two courses of action for other purposes, for example release or limitation.
It is clear that if the republication was by a person for whom the defendant is
vicariously liable under the principles of master and servant or agency then the
defendant is liable for that. Beyond this it may be that the original publisher
should only be liable as a publisher of the republished statement where he
authorised or intended it, but some of the cases speak in broader terms and
assume that the same principles relating to the responsibility of the defendant
apply to both situations. In any event, the starting point is that the defendant is
prima facie not liable because the voluntary act of a third person breaks the
chain of causation. However, the defendant is liable for the republication or for
the damage caused by it:
(1) where he authorised or intended the republication;
(2) where the person to whom the original publication was made was under a
duty to repeat the statement;
(3) where the republication was, in the circumstances of the case, the natural
and probable result of the original publication.
Cases (1) and (2) are probably but examples of the broad principle in (3). "The
law would part company with the realities of life if it held that the damage was
caused by publication of a libel began and ended with publication to the
original publishee. Defamatory statements are objectionable not least because
of their propensity to percolate through underground channels and contaminate
hidden springs". (per Bingham LJ in Slipper v BBC)."
12. The first point to stress is that the claimant in this case sues the defendant in
respect of the original publication only, but is seeking to recover damages caused by
that original publication. What the claimant wishes to allege is that the slander took
place on 26th March 2001, there was a loss of business thereafter, and the size of the
loss can be explained by the fact that the slander was not only published to those three
customers in the shop, but was published outside the shop including receiving wide
publicity in the National press. In my view in relation to the first basis on which the
judge struck out the relevant paragraphs i.e. that there was no repetition in the articles
in the newspapers, the approach of the judge was simply wrong.
13. Only if the claimants were seeking to sue on a separate cause of action in respect
of the republication would the approach of the judge be a proper one. I accept that if
the press articles were not publishing any part of the sting of the alleged slander and/or
had no causative link with the alleged slander, it would be wrong to allow the
paragraphs to be pleaded. But, the argument, so far as the articles are concerned, was
that they should be struck out because the articles were not repeating the full sting of
the alleged slander. The distinction being drawn was between an allegation that the

15-05-2021 (Page 6 of 17) www.manupatra.com National Law University Jodhpur

claimants sold fakes generally on an habitual basis, and an allegation asserting only a
part of that whole sting i.e. that the claimants habitually sold fake David Beckham
autographed memorabilia. It seems to me that when one is not concerned with separate
causes of action but is concerned with whether damages flowed from the original
publication, even a partial publication of the original sting can be causative of damage.
Furthermore, damage could flow from a report such as that which appeared in the News
Shopper following the claimant being asked about what happened. Thus it seems to me
that on the first aspect the approach of the judge was over analytical and he was wrong
to strike out the paragraphs simply on the basis that they did not "repeat" the slander.
On that basis no question of amendment would seem to arise.
14. The real point in the case can be expressed in two ways depending from whose
angle one approaches the matter. Are the claimants entitled to rely on the publication in
the press in order to establish the causative link with the damage they say they have
suffered? Is the defendant entitled to say that the damage alleged by the claimant was
caused by publication in the press and that that publication was a novus actus
interveniens?.
15. We were taken through a number of authorities some of which were examples of
the court ruling that the intervention of a third party was a novus actus interveniens,
others apparently deciding that it was not. Thus Ward v Weeks (1830) 7 Bingh. 211 was
a case in which the words alleged to be defamatory were addressed to one Bryce who
"without any authority from the defendant" repeated the same to Bryer. It was the
repetition and not the original statement which "occasioned the Plaintiffs damage".
Tindal C.J. said:
"Every man must be taken to be answerable for the necessary consequences of
his own wrongful acts: but such a spontaneous and unauthorised
communication cannot be considered as the necessary consequence of the
original uttering of the words. For no effect whatever followed from the first
speaking of the words to Bryce; if he had kept them to himself Bryer would still
have trusted the plaintiff. It was the repetition of them by Bryce to Bryer, which
was the voluntary act of a free agent, over whom the defendant had no control,
and for whose acts he is not answerable, that was the immediate cause of the
plaintiff's damage."
The plaintiff thus was non-suited.
On this side of the fence was also Dixon v Smith (1860) 5 H. & N. 450.
16. Evans v Harries (1856) 1 H. & N. 251 and Riding v Smith (1876) 1 Ex. D 91 are
cases on the other side of the line. In Evans v Harries the plaintiff was an innkeeper and
was entitled to prove a general loss of custom without stating the names of the
customers who ceased to frequent the inn. That must have been a case where the
slander had been repeated although no point appears to have been taken on that basis.
I n Riding v Smith, Ward v Weeks and Dixon v Smith were cited as also was Evans v
Harries. Riding v Smith was a case where a trader alleged that the defendant falsely and
maliciously spoke and published of the wife of the plaintiff that she was guilty of
adultery. Kelly C.B. said:
"Here the statement was that the wife of the plaintiff was guilty of adultery, and
it is the natural consequence of such a statement that persons should cease to
resort to the shop. Supposing the statement made not to be slander, but
something else calculated to injure the shopkeeper in the way of his trade, as

15-05-2021 (Page 7 of 17) www.manupatra.com National Law University Jodhpur

 for instance a statement that one of his shopmen was suffering from an
infectious disease, such as scarlet fever, this would operate to prevent people
coming to the shop; and whether it be slander or some other statement which
has the effect I have mentioned, an action can, in my opinion, be maintained on
the ground that it is a statement made to the public which would have the effect
of preventing their resorting to the shop and buying goods of the owner. . . . . I
hope the day will come when the principle of Ward v Weeks and that class of
cases shall be brought under the consideration of the Court of last resort, for
the purpose of determining whether a man who utters a slander in the presence
of others is not responsible for all the natural effects which will arise from
those persons going about and repeating the slander, though without any
express authority on his part."
He in any event, as did Pollock and Huddleston BB, distinguished Ward v Weeks and
followed Evans v Harries.
1 7 . Speight v Gosnay (1891) 60 L JQB 231 was a Court of Appeal decision also
concerned with the repetition of a slander. It is in that case that Lopes L J defined
various exceptions to Ward v Weeks when he said:
"But there are certain cases where an action against the slanderer may be
maintained for the repetition of the slander. These cases may be divided into
four classes. If the defendant had authorised the mother to repeat the
slanderous words to Galloway, the action could have been sustained. But there
is no evidence of any such authority. Then again, if the defendant had intended
that the words should be communicated to Galloway, that would have done. But
there is no evidence of any sort or kind to warrant that suggestion. Again, if the
repetition of these words had been the natural consequence of the defendant's
uttering them, that would have been sufficient; but that cannot be established
here. Lastly, there is authority for this proposition, that if it could have been
made out that there was a moral obligation on the mother to communicate the
slander to her daughter, and on the daughter to communicate it to Galloway,
the action would have been maintainable. But here the words were untrue, . . .
. there could not be any obligation either on the mother or the daughter to
repeat them to Galloway."
One notes there the exception of "the repetition being the natural consequence".
18. Although so far as I can see Speight v Gosnay was not cited, one sees the "natural
consequence" exception being suggested again in the judgment of Bowen L J, with
which other members of the court agreed, in Ratcliffe v Evans [1892] 2 QB 524. At 530
he said:
"Verbal defamatory statements may, indeed, be intended to be repeated, or may
be uttered under such circumstances that their repetition follows in the ordinary
course of things from their original utterance. Except in such cases, the law
does not allow the plaintiff to recover damages which flow, not from the
original slander, but from its unauthorized repetition: Ward v Weeks, Holwood
v Hopkins; Dixon v Smith. . . . . ."
19. In Weld-Blundell v Stephens [1920] AC 956 the House of Lords were concerned with
the question whether there had been a breach of duty in the passing on of a letter
containing a libel. In the course of the speeches in that case Ward v Weeks was
approved as good law. This laid the foundation for an argument that by so approving

15-05-2021 (Page 8 of 17) www.manupatra.com National Law University Jodhpur

Ward v Weeks even the exceptions adumbrated in Speight v Gosnay and in particular
the "natural consequence" exception was no longer appropriate. This was the argument
put forward by the BBC in the Court of Appeal in Slipper v BBC [1991] 1 QB 283. That
case was concerned with a film suggested to be defamatory of a former Detective Chief
Superintendent. The film had been reviewed in the national press and it was suggested
that those reviews had repeated the defamatory sting of the film and that those
publications should be taken into account in assessing the general damages. The
paragraph relying on the reviews was sought to be struck out on the basis of Ward v
Weeks. The Master and the judge refused to strike the paragraph out and the Court of
Appeal upheld that decision. In the course of so ruling the Court of Appeal reviewed all
the authorities to which I have referred, and others. The first thing which is clear from
each judgment is that they did not uphold the submission that Ward v Weeks in effect
imposed a rule of law to which there were no exceptions. Indeed it is clear that they
were of the view that the "natural consequence" exception had not been affected by
Weld-Blundell v Stephens. What is a little more difficult is to be absolutely clear as to
the ambit of the "natural and probable consequence" exception.
20. Mr Browne, who was for the plaintiff in Slipper, is recorded as having submitted in
that case as follows:
"Mr Browne, therefore, submits that the issue before the judge and before this
court is one of remoteness of damage since he was not contending that there
was liability upon the defendants for the repetition (if in fact there were such
repetition) but the matters pleaded in paragraph 7 go to assist the jury in
defining the ambit of the matters which are proper to be taken into account in
assessing the appropriate general damages. He contends that the earlier cases
support the proposition that the reviews are "the natural and probable
consequence" of the original publication of the libel and were intended by the
defendants to be such a consequence and that although the words used are
necessarily those of the reviewer, it was a natural and probable consequence of
any review that the "sting" of the libel would be repeated. He contends that the
phrase "natural and probable consequence" means "reasonably foreseeable"
and that even if it bore a slightly different meaning, or was used in a different
context in the earlier cases, the law, as it has developed, indicates that the true
test whether damages are recoverable is whether such damages are
"foreseeable" and that the present law is that stated in the advice of their
Lordships in The Wagon Mound [1961] A.C. 388, which expressly disapproved
the proposition that foreseeability was relevant to liability and not to damage:
per Lord Sumner in Weld-Blundell v Stephens . . . . "
21. Stocker LJ seems to me to accept that submission saying at 296 at c:
"All the cases cited, including Ward v Weeks, are examples, on their own facts,
of cases concerned with novus actus - breaches of the chain of causation. In
this case, therefore, the questions raised on this appeal are, in my opinion: (i)
Did the reviews reproduce the sting of the libel? This is a question of fact for
the jury. (ii) Did the defendants invite such reviews? The answer to this
question depends upon the facts concerning all the circumstances in which the
preview was given to the press and, again, is a matter of fact for the jury. (iii)
Did the defendants anticipate that such reviews would repeat the sting of the
libel? It is at this point that the issue of natural and probable consequence or
foreseeability arises.

15-05-2021 (Page 9 of 17) www.manupatra.com National Law University Jodhpur

 In my opinion this is a question of remoteness of damage and not liability and
raises an issue of fact for the jury. I have no doubt at all that, to put it no
higher, it could not be said that this was a "plain and obvious case" so as to
justify striking out. I would go further and say that the matter cannot be
resolved without the findings of fact by the jury, to which I have referred. This
includes the question of whether or not it was foreseeable or a natural and
probable consequence of the invitation to review that such reviews would
include the sting of libel."
22. Bingham L J, having reviewed the authorities, concluded first that Ward v Weeks
cannot have been intending to lay down a legal rule to govern issues of causation in
cases where the facts were quite different. Second he analyzed the speeches in the
House of Lords in Weld-Blundell v Stephens and demonstrated that even the majority
who were approving Ward v Weeks as good law were not saying that a defendant could
never be liable where a slander had been repeated by a third party unauthorised to do
so. The majority were accepting "that the unauthorised act of an independent third party
might be the natural and probable result of a defendant's conduct". He then referred to
two authorities cited by the plaintiffs in that case including Speight v Gosnay and
concluded that they were authorities for the proposition "that the intervention of an
independent third party does not, irrespective of the facts, break the chain of causation
or render damages too remote". His conclusion at 300 c-e was then in the following
terms:
"Mr Gray urged that to admit the possibility of such a claim would be contrary
to public policy and threaten freedom of expression. But the law would part
company with the realities of life if it held that the damage caused by
publication of a libel began and ended with publication to the original
publishee. Defamatory statements are objectionable not least because of their
propensity to percolate through underground channels and contaminate hidden
springs.
Usually, in fairness to a defendant, such effects must be discounted or ignored
for lack of proof. But here, where the further publications (although not
republications) are provable and are said to have been foreseeable, natural,
provable and perhaps even intentional results of the publications sued upon, I
see no reason in logic or policy why those effects need be ignored if the factual
premises can be established. Nor do I see any threat whatever to freedom of
expression, which (I accept) the courts must be vigilant to protect".
23. Slade L J started by analyzing what had to be assumed for the purpose of
considering a strike out, and he did so at 300f in the following terms:
"For the purpose of considering this striking out application, I think we have to
assume that the plaintiff, if permitted to do so, will or may be in a position to
prove at the trial the following facts, namely that (1) the portrayal of the
plaintiff in the film "The Great Paper Chase" was defamatory; (2) the
defendants well knew and could and did foresee that the film was likely to be
reviewed in the national press and the contents thereof rehearsed in such
reviews; (3) the passages from the reviews quoted in the statement of claim
repeated the defamatory sting of the libel; (4) the defendants could have
reasonably foreseeen that newspaper reviews would repeat the defamatory
sting."

15-05-2021 (Page 10 of 17) www.manupatra.com National Law University Jodhpur

At 301c he said:
"At least in cases where the damage following the commission of a tort is not of
a physical nature, I for my part find it difficult to draw any distinction between
damage which is the natural and probable consequence of the tort and damage
which is a reasonably foreseeable consequence: compare The Wagon Mound
[1961] A.C. 388, 423, per Viscount Simonds. For the purposes of this
judgment, I treat these two differently expressed categories of consequence as
coterminous."
24. He then went on to consider the decision in Ward v Weeks and concluded:
"Prima facie, the court will treat the unauthorised repetition of a libel as a
novus actus interveniens breaking the chain of causation between the original
publication and the damage suffered by the injured party through the repetition
or republication. Nevertheless, Tindal C.J., in saying in Ward v Weeks . . . . that
"such spontaneous and unauthorised communication cannot be considered as
the necessary consequence of the original uttering of the words" was not, in my
judgment, purporting to lay down a universal rule applicable to all cases of
unauthorised repetition or republication. He was referring to "such spontaneous
and unauthorised communication" as had occurred on the facts of that case."
25. He then said at 302d:
"There have been cited to us a number of decisions, which seem to show that
on particular appropriate facts the repetition of the sting of a libel by an
unauthorised third party may be treated as the "natural" or the "natural and
probable" consequence of the original publication, so as to expose the original
publisher to a claim for damage in respect of the repetition: see for example
Speight v Gosnay, 60 L.J.Q.B. 231, 232, per Lopes L.J. and at p. 233, per Kay
L.J.; Ecklin v Little, 6 T.L.R. 366, 367 per Charles J. (distinguishing Ward v
Weeks) and Cellactite and British Uralite Ltd v H. H.Robertson Co Inc., The
Times, 23 July 1957, per Hodson L.J."
26. At 302g Slade LJ said:
"As I have already indicated, at least for present purposes I am prepared to
accept that prima facie the unauthorised repetition of a libel will be treated as a
novus actus interveniens (as it was in Ward v Weeks and Weld-Blundell v
Stephens); prima facie repetition will not be treated as the natural and probable
consequence of the original publication. Nevertheless, every case must depend
on its own facts. Subject as stated above, I am not persuaded that the "natural
and probable" test is the wrong one to be applied in considering questions of
remoteness of damage in cases of defamation or that the circumstances in
which repetition can properly be treated as the natural and probable
consequence can or should be restricted to stated, rigidly defined categories."
27. One notes from the way in which Stocker L J framed the questions that he posed,
and the way Slade L J posed the issues which he suggested the plaintiff was seeking to
have established before the jury, that they put the issues in slightly different terms.
They were at one in suggesting that the jury should have to decide whether the reviews
"repeated the defamatory sting of the libel". Stocker L J suggested that the next issue
would be whether the defendants "invited" such reviews whereas Slade L J suggested
that that issue should be framed as whether the defendants "well knew and could and

15-05-2021 (Page 11 of 17) www.manupatra.com National Law University Jodhpur

did foresee that the film was likely to be reviewed". Stocker L J put the final issue as to
whether the defendants "anticipated that such reviews would repeat the sting of the
libel" whereas Slade LJ put the matter in this way:
"Could the defendants have reasonably foreseen that the newspaper reviews
would repeat that defamatory sting."
28. What the claimants allege in their particulars of claim in this action as issues that
they would seek to place before the jury are (1) that there was a slander published to
certain customers in their shop on 26th March 2001, that all the autographs including
that of David Beckham were fakes habitually sold by them; (2) that the defendant
routinely and assiduously courts publicity and "well knew and could and did foresee"
that what she said was likely to come to the attention of the national and local media
and was likely to be reported widely "in such media in eye-catching and sensational
terms and/or repeated in the specialist celebrity autograph market" (see paragraph 11.1
of the particulars of claim); (3) that the media did quote her words and that in so doing
they repeated the defamatory sting of the libel either in whole or in part; and (4) that
she thus knew and/or could foresee that the newspapers and the celebrity market would
repeat the defamatory sting in whole or in part.
2 9 . Mr Browne was inclined to accept that if the claimants could prove that the
defendant courted publicity, that she knew or should have appreciated that the press
would be likely to report what she said, and that she actually foresaw or reasonably
should have foreseen that the sting of the slander would be repeated by the press, then
the claimants would be entitled to rely on the further publication to establish their
damages. In other words, he was inclined to accept that his application to strike out
was not simply that on the pleaded case the claimants could not succeed. His argument
ultimately thus came down to submitting that with the prima facie presumption
suggested by Slade L J as flowing from Ward v Weeks, the claimants would simply be
unable to prove that the defendant "knew or reasonably should have appreciated that
the press were likely to repeat what she said". Thus he submitted the case, in so far as
it relied on the press coverage, was doomed to failure. This, as it seems to me, was a
rather different way of putting the case than the way it had been argued before the
judge. It involved an acceptance that Ward v Weeks did not necessarily provide a
complete answer, and an acceptance that it was not fatal to the claimants' case not to
plead and be able to prove actual authorisation of publication in the press or actual
knowledge that the press were present and ready to publish.
3 0 . The burden on Mr Browne, once he is suggesting that his real case is that the
claimants will simply be unable to prove what they plead, is a high one. The power to
strike out both under the former rules and under the CPR has always been considered a
draconian remedy which is to be employed only in clear and obvious cases. Most
recently the House of Lords in Three Rivers DC v Bank of England
MANU/UKHL/0061/2001 : [2001] 2 All ER 513 approved amongst other authorities
McDonald's Corp v Steel MANU/UKWA/0024/1994 : [1995] 3 All ER 615 where Neill L J
emphasised the above point in the context of a libel case where the judge had struck
out paragraphs pleading justification, and the Court of Appeal reinstated the same.
3 1 . It seems to me that the case which the claimants wish to put before the jury
contains a number of factual elements. They wish to establish the kind of person they
allege the defendant was i.e. someone they say who courted the media; the way in
which she spoke the words complained of i.e. in a loud voice to all customers in the
shop, and ostensibly for the protection of customers generally; that she knew that it

15-05-2021 (Page 12 of 17) www.manupatra.com National Law University Jodhpur

was likely that reports of what she said would spread well beyond the confines of the
shop itself; that she knew that the press would report the type of incident which they
say she brought about; and that she knew it was likely that the press would repeat the
sting in whole or in part. I cannot see how it can be said at the interlocutory stage that
it is impossible for the claimants to establish those facts. As a starting point, if what the
claimants allege happened did happen, it is plain that the aim of the remark was at
customers generally, and not just confined to the three in the shop. It may be difficult
to establish actual knowledge or awareness, but difficulty is not the same as
impossibility.
32. The much more difficult question is whether the courting of publicity and actual
awareness are necessary facts to prove for the claimants to succeed. Both sides
appreciated that it was possible that some facts and not others might be capable of
proof, and in particular appreciated that the defendant's actual state of mind might be
difficult to establish. In Slipper as the last passage in the judgment of Slade L J
demonstrates, that court felt it appropriate, having reinstated the paragraphs, to
recognise that some unsolved problems remained e.g. precisely how the jury was to be
directed. They simply left the matter to the trial judge. We, as I understood counsel,
were not being asked to do the same, and in the interests of trying to assist those that
have to deal with the case hereafter would go a little further.
33. I am conscious that Ward v Weeks and the prima facie rule which Slade L J suggests
that case establishes is intended to act as a control mechanism in respect of liability for
slander. There is thus, as it seems to me, a danger in expressing the circumstances in
which damages for the original slander can be established by a further publication,
partial or otherwise, simply in terms of foreseeability. There is a temptation to say that
it is sufficient in relation to any defendant charged with having slandered somebody,
that if it is "reasonably foreseeable" that the slander will be repeated, damage flowing
from the repetition will automatically be recoverable. There is however, in my view, a
danger in the use of that language alone. It is instructive to remember what Lord Reid
said in The Wagon Mound (No.2) [1967] 1 A.C. 617 at 641:
"But here the findings show that some risk of fire would have been present to
the mind of a reasonable man in the shoes of the ship's chief engineer. So the
first question must be what is the precise meaning to be attached in this
context to the words "foreseeable" and "reasonably foreseeable."
Before Bolton v Stone the cases had fallen into two classes: (1) those where,
before the event, the risk of its happening would have been regarded as unreal
either because the event would have been thought to be physically impossible
or because the possibility of its happening would have been regarded as so
fantastic or farfetched that no reasonable man would have paid any attention to
it - " a mere possibility which would never occur to the mind of a reasonable
man" (per Lord Dunedin in Fardon v Harcourt-Rivington) - or (2) those where
there was a real and substantial risk or chance that something like the event
which happens might occur, and then the reasonable man would have taken the
steps necessary to eliminate the risk.
Bolton v Stone posed a new problem. There a member of a visiting team drove
a cricket ball out of the ground onto unfrequented adjacent public road and it
struck and severely injured a lady who happened to be standing in the road.
That it might happen that a ball would be driven onto this road could not have
been said to be a fantastic or far-fetched possibility: according to the evidence

15-05-2021 (Page 13 of 17) www.manupatra.com National Law University Jodhpur

 it had happened about six times in 28 years. And it could not have been said to
be a far-fetched or fantastic possibility that such a ball would strike someone in
the road: people did pass along the road from time to time. So it could not
have been said that, on any ordinary meaning of the words, the fact that a ball
might strike a person in the road was not foreseeable or reasonably foreseeable
- it was plainly foreseeable. But the chance of its happening in the foreseeable
future was infinitesimal. A mathematician given the date could have worked out
that it was only likely to happen once in so many thousand years. The House of
Lords held that the risk was so small that in the circumstances a reasonable
man would have been justified in disregarding it and taking no steps to
eliminate it.
But it does not follow that, no matter what the circumstances may be, it is
justifiable to neglect a risk of such a small magnitude. A reasonable man would
only neglect such a risk if he had some valid reason for doing so, e.g. that it
would involve considerable expense to eliminate the risk. He would weigh the
risk against the difficulty of eliminating it. If the activity which caused the
injury to Miss Stone had been an unlawful activity, there can be little doubt but
that Bolton v Stone would have been decided differently. In their Lordships'
judgment Bolton v Stone did not alter the general principle that a person must
be regarded as negligent if he does not take steps to eliminate a risk which he
knows or ought to know is a real risk and not a mere possibility which would
never influence the mind of a reasonable man. What that decision did was to
recognise and give effect to the qualification that it is justifiable not to take
steps to eliminate a real risk if it is small and if the circumstances are such that
a reasonable man, careful of the safety of his neighbour, would think it right to
neglect it."
34. What the law is striving to achieve in this area is a just and reasonable result by
reference to the position of a reasonable person in the position of the defendant. If a
defendant is actually aware (1) that what she says or does is likely to be reported, and
(2) that if she slanders someone that slander is likely to be repeated in whole or in part,
there is no injustice in her being held responsible for the damage that the slander
causes via that publication. I would suggest further that if a jury were to conclude that
a reasonable person in the position of the defendant should have appreciated that there
was a significant risk that what she said would be repeated in whole or in part in the
press and that that would increase the damage caused by the slander, it is not unjust
that the defendant should be liable for it. Thus I would suggest a direction along the
above lines rather than by reference to "foreseeability".
35. I would thus allow the appeal and reinstate the paragraphs which the judge struck
out.
Lord Justice Clarke:
36. I have read in draft the judgments of both Waller and Laws L JJ. I agree with both
their reasoning and conclusions. I detect no disagreement between them, and, being
wholly unable to add to Laws L J's classical allusions, am content simply to say that I
agree that this appeal should be allowed for the reasons given by them. I also agree
that the jury should be directed along the lines which they propose.
Lord Justice Laws:
3 7 . I agree that this appeal should be allowed, and I agree also with Waller L J's

15-05-2021 (Page 14 of 17) www.manupatra.com National Law University Jodhpur

reasoning in arriving at that result. I add some observations of my own because of what
I regard as the unrespectable complexity into which this branch of the law has wound
itself. The case on the claimants' pleadings, reduced to its essentials, involves these
propositions. (1) The defendant utters, to a very limited audience, words which slander
the claimants in the way of their business. (2) Shortly thereafter the gist or sting (but
not the exact words) of the slander is repeated in the national and local press (I will call
their reports the "second publications"); alternatively part only of the sting is so
repeated. (3) After the second publications, the claimants suffer a grave downturn in
the turnover of their business. (4) The claimants sue the defendant in slander and claim
the whole of their business loss as damages. They accept that but for the second
publications they cannot establish that the slander uttered by the defendant has caused
the loss, or by far the greater part of the loss, which they seek to recover.
38. The case thus presents a particular feature which is by no means confined to the
law of defamation. It is that the claimant C seeks to hold the defendant D responsible
for damage occasioned (or at least, directly occasioned) by the agency of a third party
X. The law of negligence is replete with instances of this feature. The law's stock
response has been to consider whether it can truly be said that D's act or omission is a
substantial or effective cause of the damage, or whether rather the chain of causation is
broken by the act or omission of X; if it has been, then X's act or omission is called a
novus actus interveniens, and C cannot claim against D the loss occasioned by it.
However, reasoning of that kind raised the false hope of a decisive objective test of
causation. It was as if the court was saying, if only we look hard enough and long
enough, we shall be able to discern from the evidence whether this really is a case
where D's wrongdoing caused the damage, or it is one of novus actus interveniens. But
that was always a search for a pot of gold at the end of the rainbow. The courts have
never articulated such a decisive test; for the good reason that there is none to
articulate.
39. It might be thought that the ascertainment of a causal relation between an act and a
result is always a question of fact; and a decision on pure fact is, so to speak, always
value-free. In very many ordinary cases, that will be quite right. But where the court
has to decide whether D should be responsible to C for the effects of what was done or
omitted by a third agency X, the court's task is not purely one of ascertaining fact, and
is certainly not value-free. In every such case D's act may credibly be called a cause of
the damage which flows after X has done whatever he has done. If it were otherwise, if
the consequences of X's part in the story simply had no perceptible connection with D
or with the consequences of what D had done, the case would admit of a very short
answer indeed: D would not be liable upon any rational approach to causation and legal
responsibility. The issue for the court is not, therefore, purely one of factual causation.
The true nature of the exercise does not consist in an ever closer examination of the
facts to find some feature which one might at first have missed. The reality is that the
court has to decide whether, on the facts before it, it is just to hold D responsible for
the loss in question. Perhaps I might repeat a few words from the judgment I gave in
Rahman v Arearose Ltd [2001] QB 351 (a personal injury case involving successive
torts), with which Henry and Schiemann LJJ agreed (paragraphs 29,33):
"29... The law is that every tortfeasor should compensate the injured claimant
in respect of that loss and damage for which he should justly be held
responsible. To make that principle good, it is important that the elusive
conception of causation should not be frozen into constricting rules.
.

15-05-2021 (Page 15 of 17) www.manupatra.com National Law University Jodhpur

 33... So in all these cases the real question is, what is the damage for which
the defendant under consideration should be held responsible.. Novus actus
interveniens, the eggshell skull, and (in the case of multiple torts) the concept
of concurrent tortfeasors are all no more and no less than tools or mechanisms
which the law has developed to articulate in practice the extent of any liable
defendant's responsibility for the loss and damage which the claimant has
suffered."
40. The problem of a second cause or novus actus interveniens should have no more
absolutist or metaphysical overtones for the law of defamation than it does for the law
of negligence. Of course the conception of a duty of care has no analogue in
defamation. But that, if anything, serves to simplify the approach to be taken in
defamation cases to the task of ascertaining in any given case the extent of any liable
defendant's responsibility for the loss and damage which the claimant has suffered
where a potential novus actus is involved.
41. The defamation cases have over time been girt about with unhelpful complexities.
Thus (1) Ward v Weeks (1830) 7 Bingh. 211 gave rise to the suggestion that there was
a rule of law to the effect that a defendant could in no circumstances be held
responsible to the claimant for the consequences of an effective repetition of a slander
perpetrated by him. I think that was plainly wrong. (2) A distinction was drawn, having
no readily perceptible basis in principle, between the effects of a repeat publication in
the case where a slander was actionable per se (the repeat publication might in some
circumstances be relied on) and the case where it was not so actionable (the repeat
publication might never be relied on): see Parkins v Scott (1862) 1 H & C 153. (3) The
circumstances in which repeat publication might be relied on became ossified into
categories: see Speight v Gosnay (1891) 60 L JQB 231. (4) The courts' perception of
causation was not advanced by an uncomfortable oscillation between the old language
of "natural and probable cause" and the later formulation "reasonable foreseeability":
this can be seen, with great respect, as late as this court's judgment in Slipper v BBC
[1991] 1 QB 283, to which my Lord Waller LJ has referred.
42. The law needs to be simplified. The root question is whether D, who has slandered
C, should justly be held responsible for damage which has been occasioned, or directly
occasioned, by a further publication by X. I think it plain that there will be cases where
that will be entirely just. The observation of Bingham L J as he then was in Slipper at
300 that "[d]efamatory statements are objectionable not least because of their
propensity to percolate through underground channels and contaminate hidden springs"
states an ancient and persistent truth, long ago vividly described in Vergil's account of
Aeneas and Dido Queen of Carthage (Aeneid IV, 173-188).
43. It will not however in my judgment be enough to show that D's slander is a cause
of X's further publication: for such a cause might exist although D could have no reason
to know of it; and then to hold D responsible would not be just. This is why the old
formula, "natural and probable cause", is inapt even as a figurative description of the
relationship that needs to be shown between D's slander and the further publication if D
is to be held liable for the latter. It must rather be demonstrated that D foresaw that the
further publication would probably take place, or that D (or a reasonable person in D's
position) should have so foreseen and that in consequence increased damage to C
would ensue.
44. Such an approach, I hope, may go some modest distance to demythologise the law
of defamation. I make it clear that I intend what I have said to be in conformity with

15-05-2021 (Page 16 of 17) www.manupatra.com National Law University Jodhpur

Waller L J's suggestion at the end of his judgment as to how a jury might be directed,
though with deference to him I think that any avoidance of the term "foreseeability" is
commended by the need for clarity rather than adherence to principle, for in principle
the approach he proposes, and for what it is worth my own reasoning, require that the
damage in question flowing from X's act be foreseen or foreseeable by D, or the
reasonable person in D's position.
Order:
1. Appeal allowed.
2 . Appellants to pay respondents (within 14 days) £35,000 on account of
costs here and below the remainder to be subject to detailed assessment..
(Order does not form part of the approved judgment)

Crown Copyright ©

15-05-2021 (Page 17 of 17) www.manupatra.com National Law University Jodhpur