In the case of Ajinomoto Sweeteners Europe SAS v Asda Stores Limited, the High Court has for the first time ordered a split trial in a malicious falsehood claim ordering that the meaning to be attributed to the words complained of should be decided first before the questions of falsity and malice.
Ajinomoto (AJ) manufactures and supplies the artificial sweetener aspartame. Asda launched a campaign to remove aspartame from all of its own brand products. In a major press release, Asda said:
“ASDA vows to remove artificial colours and flavours from all own-label food and soft drinks by the end of 2007. Supermarket to give customers the cleanest food in Britain with a ‘no nasties’ guarantee.”
Asda used the phrase “NO HIDDEN NASTIES” on the labelling of its own brand products in conjunction with the wording “No artificial colours or flavours, no hydrogenated fat and no aspartame”.
AJ brought proceedings for malicious falsehood alleging that the natural and ordinary meaning of the words used on the packaging was that aspartame was an especially harmful or unhealthy, or potentially harmful or unhealthy, sweetener and one which consumers concerned for their own health or that of their families would do well to avoid either altogether or in the quantities found in soft drinks or other food products.
AJ applied to the court for an order that the trial be split and that the court determine first the ordinary and natural meaning to be given to the words used by Asda before the questions of falsity and malice were considered. Asda opposed the application.
The court ordered that the meaning to be given to the words used should be decided first as a preliminary issue. Its view was that split trials were common in defamation claims and that claims for malicious falsehood should be treated in the same way. The fact that the trial of a preliminary issue in a defamation claim was potentially ‘case-breaking’ (if the words were found to have a defamatory meaning then the case would continue, if not it would not) but not so in a malicious falsehood claim (even if the words were found to have the meaning alleged by the claimant, the claimant still had to prove falsity and malice) was not a reason to refuse to order the trial of the preliminary issue.
Trial of the preliminary issue would save costs because if the court rejected AJ’s ordinary and natural meaning then that would be the end of the case and the parties would not need to incur costs dealing with the falsity and malice issues. If the court accepted AJ’s ordinary and natural meaning then Asda would know what it was that AJ had to establish to succeed on falsity and malice and both parties would be assisted in the preparation of their case.
The court was satisfied that it was not AJ’s intention to tactically slice up the action into three separate trials of meaning, falsity and malice. The major consideration for the court was whether the trial of a preliminary issue would save costs, subject always to the proviso that no order would be made if it would or could cause unfairness to the opposite party to the hive off the issue in question.
This judgment is very much in line with the current tendency of the courts to use their case management powers to closely control costs and will be of interest to practitioners involved in malicious falsehood litigation.