Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd (No 2)

Reference: [2009] EWHC 1717 (QB); [2010] 1 QB 204; [2009] 3 WLR 1149; [2010] 2 AllER 311; [2009] FSR 29

Court: Queen's Bench Division

Judge: Tugendhat J

Date of judgment: 15 Jul 2009

Summary: Malicious falsehood - Meaning - Preliminary Issue - Single-meaning rule - Least injurious meaning

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Appearances: James Price QC - Leading Counsel (Claimant) 

Instructing Solicitors: CMS Cameron McKenna LLP for the Claimant; Kempner Robinson for the Defendant

Facts

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. The court ordered that the actual meaning of the words complained of be tried as a preliminary issue.

Issue

(1) Whether the single-meaning rule from the law of defamation applied to malicious falsehood claims;

(2) How, if it did, was the Court to choose between competing meanings that were equally likely;

(3) In light of the answers to (1) and (2), what meaning(s) were borne by the words complained of?

Held

(1) The single meaning rule did apply to malicious falsehood claims. It was a control mechanism which sought to protect both the defendant’s right to freedom of expression and the claimant’s right to reputation by striking a balance between the two. Since a claimant who alleged that the words he complained of were defamatory as well as a malicious falsehood was free to choose which cause of action to pursue it was in the interests of legal consistency, and of freedom of expression, that the same rule of interpretation should apply to both torts.

(2) Where there were two reasonably possible meanings, one of which was alleged to be false and the other of which was not, the court should adopt the least injurious meaning.

(3) Although a substantial number of consumers would understand the packaging to be suggesting that there was a risk that aspartame was harmful or unhealthy, the single meaning applying (2) above, 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.

Comment

The question whether the single-meaning rule applied to malicious falsehood claims was unresolved prior to this decision. In Vodafone Group plc v Orange Personal Communications Services Ltd  [1997] FSR 34, Jacob J had doubted whether it should but in that case the parties had agreed that he should proceed on the basis that it did. The single-meaning rule does not apply in passing-off – see Clark v Associated Newspapers [1998] 1 WLR 1558.