In April 2017, an article was published in the Manchester Evening News (MEN), claiming that a customer had found a dead mouse in a packet of MyProtein’s Impact Diet Whey protein powder. While the customer did not react quite as badly as if he had found a snail in his ginger beer, it certainly took the edge off his day and he decided to contact the MEN.
The inference of what he said and what MEN published was that the mouse had entered the packet in the factory (with all that entailed for a lack of cleanliness) but a series of laboratory tests on the mouse, worthy of “Silent Witness” or CSI Manchester, determined that it had died after the date on which the packet of protein powder had been sealed in the factory. The offending rodent had therefore entered the packet in the customer’s home after he had opened it. Following the laboratory result the customer issued an apology which was reported and repeated by the MEN.
MyProtein brought a libel claim against MEN’s publisher Reach Plc which claimed special damages in excess of £1m as a consequence of an alleged drop in sales in the weeks following the MEN’s report (and its repetition in other newspapers). MEN made an offer of amends. MyProtein served a report setting out the alleged loss which it claimed had been caused by the libel and more than 2 years later the claim has been settled.
Claims for special damage in libel present particular issues. Proving that a given customer chose not to do business with the claimant because of the specific publication complained of is rarely straightforward. There will often be an alternative reason for the loss of a customer’s trade and the burden of proof is with the claimant. If the case is presented on the basis of the business’ overall turnover/profit then it is necessary to consider the general economic climate and the specific variables applicable to the claimant’s sector of business. Unless the drop in business is truly catastrophic and immediate, a claimant always faces the problem that one recognised problems of libels is that they cause people to change their allegiances without explaining why they are doing so.
William McCormick QC was instructed by Gordon Clough and Razi Mireskandari of SMB.