Boot-shop rivalry in 1920s Upper Hutt.

Case reviewed: Clark v Vare, Supreme Court, Wellington
[1930] NZLR 430

Background 

Clark and Vare were neighbouring traders in Upper Hutt.  Clark was a draper, but at times also sold boots.  Vare, who limited his trade to boots and shoes, took exception to Clark’s venture into boots.  When Clark advertised a sale of a bankrupt stock of boots, Vare responded with a placard stating: “We do not sell bankrupt stock, but we sell under cost price.”  Some time later, Clark advertised a fire sale of boots, to which Vare put up a placard in his window stating: “Hutt War Sale.”  Matters came to a head on 30 January 1929, when Vare placed in his window a placard stating: “One man, one wife, one trade.”

It was widely known around Upper Hutt that Clark was living apart from his wife, and that his housekeeper was separated from her husband.  Clark was affronted by the placard, which to him imputed improper relations between him and his housekeeper.

Although not recorded in the judgment, it is noteworthy that Clark, after seeing the placard, attacked Vare in the street. An Evening Post report of 14 February 1929 records that both men were charged in respect of the fight, though the charges against Vare were dismissed.  Clark’s counsel—who would represent him in his libel action against Vare—highlighted the provocation element of the placard, but the Magistrate held that this did not give Clark the right to attack Vare.  Clark was fined £4 (about $380 in 2016).

Down but not out, Clark sued Vare for libel, seeking £50 (about $4,750 in 2016).

In a hearing before a Magistrate, Vare said that the placard was not intended to refer to Clark at all; that Vare called his shop “The Uno Boot Store”, and his placards merely emphasised the word “Uno”.  Further, Vare said he was proud of the fact that his shop was a one-man shop, devoted to the one trade, with no man in it but himself, and the placard in question was meant merely to stress that fact.  The Magistrate agreed with Vare, finding that the placard did not identify Clark in the manner Clark suggested.

Clark appealed to the Supreme Court (the equivalent to the modern High Court).

Judgment

Chief Justice Myers, who heard the appeal, overturned the Magistrate’s decision.  He ruled that the placard did in fact bear the innuendo meaning Clark complained of.  Guiding the Judge’s decision was the evidence of three local women who were familiar with Clark, Vare and their rivalry, and understood the placard in question to suggest improper relations between Clark and his housekeeper.

The Judge remitted the case to the Magistrate to be entered in Clark’s favour and for damages to be assessed. (There is no record of any damages assessment, so it is presumed the case was settled after Clark’s successful appeal.)

Comment

This case is a good example of innuendo meanings: how certain statements, which may appear innocuous on their face, can bear defamatory meanings to those with ‘inside information’.  To an ordinary person unaware of the local context, the words “one man, one wife, one trade” would not have even referred to Clark, let alone have been defamatory of him.  However, in the context of the case, readers such as the three women with knowledge of relevant extrinsic facts—i.e. the rivalry between Clark and Vare, and Clark’s marital situation—would have construed the words in the defamatory sense alleged.  In these people’s eyes, Clark’s reputation was attacked.

Vare’s explanations for the placard seem disingenuous, but it is important to note that even if he didn’t intend to refer to Clark, the fact that certain readers interpreted the words in a defamatory sense of Clark was enough in law for Vare to be liable.

The short point is, it doesn’t matter what you intend to publish; only what readers reasonably interpret.