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Lord Wilmot CJ said (2 Wils 403 at 403-404, 95 ER 886 at 886-887):'. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases . Gould J said (2 Wils 403 at 404, 95 ER 886 at 887):'What is the reason why saying a man has the leprosy or plague is actionable?[It] is because the having of either cuts a man off from society; so the writing and publishing maliciously that a man has the itch and stinks of brimstone, cuts him off from society.This appeal raises questions as to the meaning of the word 'defamatory' and as to the nature of an action for defamation. The plaintiff, Mr Steven Berkoff, is an actor, director and writer who is well known for his work on stage, screen and television.The first defendant, Miss Julie Burchill, is a journalist and writer who at the material times was retained to write articles about the cinema for the Sunday Times.A striking example of the exercise of this jurisdiction is provided by the decision of the House of Lords in Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, [1881-5] All ER Rep 86.In that case the defendants sent a circular to a large number of their customers stating: 'Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.' The contents of the circular became known and there was a run on the bank.

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I turn therefore to such guidance as can be found in any of the decided cases to which we were either referred by counsel or to which my own limited researches have led me.

The formula is well known to lawyers, but it is obvious that suggestions might be made very injurious to a man's character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt -- for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred, or contempt.'(2) In Scott v Sampson (1882) 8 QBD 491, [1881-5] All ER Rep 628 the Divisional Court was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? words may be defamatory of a trader or business man or professional man, although they do not impute any moral fault or defect of personal character. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'Slesser LJ added, in relation to the facts in that case:'One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.'(6) The Faulks Committee in their report recommended that for the purpose of civil cases the following definition of defamation should be adopted (para 65):'Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.'(7) In the American Law Institute's Restatement of the Law of Torts (2nd edn, 1977) @ 559 the following definition is given:'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'(8) In some of the Australian states a definition of 'defamatory matter' is contained in the Code.

Cave J explained the nature of the right which is concerned in an action for defamation (8 QBD 491 at 503, [1881-5] All ER Rep 628 at 634):'Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.'But, as was pointed out in the Faulks Committee Report of the Committee on Defamation (Cmnd 5909) para 62, the word 'discredit' is itself incapable of precise explication. '(4) As I have already observed, both Scrutton and Atkin LJJ in Tournier's case drew attention to words which damage the reputation of a man as a business man. They [can] be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity . .' (See [1970] 1 All ER 1094 at 1104, [1970] 1 WLR 688 at 698-699.)It is therefore necessary in some cases to consider the occupation of the plaintiff.(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587 Slesser LJ expanded the Parmiter v Coupland definition to include words which cause a person to be shunned or avoided. In the Queensland Criminal Code @ 366, the following definition is given:'Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him . .'It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society.

It's a very new look for the Creature -- no bolts in the neck or flat-top hairdo -- and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking.'Following the publication of the second article Mr Berkoff made an immediate complaint. .' The summons also included an application for an order that if it were determined that the meaning was not defamatory the action should be dismissed.

The complaint was rejected, however, and on 1 March 1995 Mr Berkoff issued a writ. The summons was heard by Sir Maurice Drake sitting as a judge of the High Court.

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