Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd (No 2) (CA)
Reference:  EWCA Civ 609;  QB 497
Court: Court of Appeal
Judge: Sedley & Rimer LJJ and Sir Scott Baker
Date of judgment: 2 Jun 2010
Summary: Malicious falsehood - Meaning - Preliminary Issue - Single-meaning rule
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James Price QC - Leading Counsel (Claimant)
Instructing Solicitors: CMS Cameron McKenna LLP for the Claimant; Kempner Robinson LLP for the Defendant
The Claimant company manufactured and sold the artificial sweetener aspartame. It brought a claim for malicious falsehood against the defendant supermarket chain in respect of certain statements on the packaging of the defendant’s own-brand “Good for You” range of food and soft drink products. The packaging stated that the relevant product contained no aspartame and in certain cases also stated that the product contained “no hidden nasties”. The claimant claimed that in their natural and ordinary meaning the words complained of meant that aspartame was (i) especially harmful or unhealthy, or (ii) potentially harmful or unhealthy, and (iii) something which consumers concerned for their health and that of their families would do well to avoid.
At the trial of a preliminary issue as to meaning, Tugendhat J held that the single-meaning rule applied and that, although a substantial number of consumers would have understood the packaging to suggest that there was a risk that aspartame was harmful or unhealthy, the application of the single-meaning rule meant that the meaning was that, if a customer thought that aspartame might be bad for him or unpleasant to taste or consume, then these products were for him.
The Claimant appealed, the Judge below having given permission to appeal.
(1) Whether the judge had been correct to apply the single-meaning rule to malicious falsehood;
(2) If he had been, whether he had also been right to select between the two competing meanings on the basis of the one that was the least injurious.
(1) The single-meaning rule did not apply to malicious falsehood. The rule is anomalous, frequently otiose, and, where not otiose, unjust. It was not right to deny the Claimant a remedy (assuming it could prove falsity and malice) on the basis that although it had been damaged in the eyes of some consumers it had not been injured in the eyes of others.
(2) The second issue did not fall to be decided.
As regards the single-meaning rule in defamation, the Court recognised that nothing in this judgment would affect it, but they noted Diplock LJ’s remarks in Slim v Daily Telegraph  2 QB 157 that the law of defamation had passed beyond redemption by the courts. Although, as Tugendhat J had observed at first instance, the single-meaning rule is a control mechanism, the Court of Appeal rejected its application to malicious falsehood principally on the basis of the obvious injustice that could occur with such a crude tool. As Rimer LJ noted :
“The potential for injustice in the present case flows from the fact that, before discarding it as legally irrelevant, the judge made the finding he did as to [the claimant’s meaning]. If the case were allowed to go to trial and the claimant were able to prove that such meaning was false, uttered with malice and calculated to damage it, why should it not be entitled to damages for the injury which the falsehood will have caused it? More importantly – and this is the primary remedy the claimant wants – why, if it can prove its case, should it not be entitled to have the defendant restrained by injunction from doing that which it wants to do, namely (presumably for its own commercial benefit) to continue to publish a falsehood that will continue to damage the claimant in the eyes of a substantial body of consumers? The result, however, of the application by the judge of the single meaning rule is that that body of consumers is removed from the court’s radar. The court instead satisfies itself with the fiction, contrary to its own finding, that the entire consuming public will interpret the defendant’s packaging as bearing a single innocuous meaning.”