Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd* (Sir Charles Gray; [2009] EWHC 781 (QB); 08.04.09)

In this malicious falsehood action the Claimant, Ajinomoto, sought an order for the trial of a preliminary issue.

Ajinomoto is one of a number of companies which manufactures and supplies an artificial sweetener called aspartame. In May 2007, Asda commenced a campaign which was designed to ensure that, by the end of that year, none of its own-label food and soft drinks products would contain any artificial colours or flavours or any hydrogenated fat or flavour enhancers. Asda also committed to the replacement of aspartame in its low calorie products with an alternative sweetener made from sugar, namely sucralose. Asda’s press release and packaging contained the catch-phrase “no hidden nasties”. One of the statements used on packaging in conjunction with the catch-phrase was “no artificial colours or flavours, no aspartame and no hydrogenated fat”.

According to Ajinomoto, the natural and ordinary meaning of the words on the packaging was that aspartame is an especially harmful or unhealthy sweetener and was one which consumers concerned for their health would do well to avoid. Ajinomoto applied for the meaning of the words to be decided as a preliminary issue.

Sir Charles Gray noted that the major consideration on any application for the trial of a preliminary issue was whether the trial would save costs, subject always to the proviso that no order would be made if it would or might cause unfairness to the opposite party to hive off the issue in question.

The judge accepted that if Ajinomoto’s meaning was rejected, that would be an end to the case. If, on the other hand, Ajinomoto’s view of the natural and ordinary meaning was upheld, Asda would know what Ajinomoto had to establish in order to succeed on the issues of falsity and malice and this may assist the parties when they came to consider their respective positions. The judge readily acknowledged that any trial of the issue of the safety of aspartame would be prolonged and exceedingly costly to the parties, as it would require scientific and medical evidence by experts and a minute examination of the conclusions arrived at by various regulatory bodies.

Asda’s counsel expressed a concern that Ajinomoto may, if successful upon the trial of the preliminary issue, thereafter seek an order for the trial of falsity in advance of any trial in relation to malice. Asda’s counsel submitted that it was improper for Ajinomoto to slice up the issues in this way. However, since Ajinomoto’s counsel confirmed that it did not intend to seek a separate trial of the issue of falsity prior to the issue of malice, this concern was unfounded.

The judge concluded that the issue as to the meaning of the words complained of was suitable for trial as a separate preliminary issue. A preliminary determination would, whichever way it was decided, assist the parties to know where they stood and may well result in a considerable saving in costs.