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It is clear, however, that the court should exercise great caution before concluding that words are incapable of a defamatory meaning.
In the present case the position is somewhat different because a specified meaning has been isolated and the preliminary issue requires the determination of the single question, whether that meaning is capable of being defamatory.
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.
The case for Mr Berkoff is that the charge that he is 'hideously ugly' exposes him to ridicule, and/or alternatively, will cause him to be shunned or avoided.
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.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.Guidance from decided cases It will be convenient to consider the cases chronologically.(1) In Cropp v Tilney (1693) 3 Salk 225, 90 ER 1132 the plaintiff complained of a publication which he said had resulted in his failing to be elected as a member of Parliament.The words of which he complained are irrelevant for present purposes, but it is to be noted that Holt CJ said (3 Salk 225 at 226, 90 ER 1132):'Scandalous matter is not necessary to make a libel, it is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible and ridiculous; as for instance, an action was brought by the husband for riding Skimmington, and adjudged that it lay, because it made him ridiculous, and exposed him.'It seems that the reference by Holt CJ was to the decision in Mason v Jennings (1680) T Raym 401, 83 ER 209, where the phrase 'riding Skimmington' was taken to imply that the plaintiff's wife beat him.(2) In Villers v Monsley (1769) 2 Wils 403, 95 ER 886 the plaintiff complained of some verses written by the defendant which suggested that the plaintiff smelt of brimstone and which included the line: 'You old stinking, old nasty, old itchy old toad . .' The court upheld the plaintiff's award of sixpence damages which he had received at Warwickshire Assizes. if any man deliberately or maliciously publishes any thing in writing concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, an action well lies against such publisher. Nobody will eat, drink, or have any intercourse with a person who has the itch and stinks of brimstone; therefore I think this libel actionable, and that judgment must be for the plaintiff.'The other members of the court agreed.