Defamation - Case Law

Wednesday, January 31, 2007


Hulton Co v Jones

E Hulton Co v Jones
[1910] AC 20
House of Lords

Lord Loreburn LC, Lord Atkinson, Lord Gorell and Lord Shaw of Dunfermline.

Defamation - Libel in Newspaper - Publication - Intention to defame Plaintiff.

In an action for libel it is no defence to shew that the defendant did not intend to defame the plaintiff, if reasonable people would think the language to be defamatory of the plaintiff.

The appellants, owners and publishers of a newspaper, published in an article defamatory statements of a named person believed by the author of the article and the editor of the paper to be a fictitious personage with an unusual name. The name was that of the respondent, who was unknown to the author and the editor. In an action for libel against the appellants it was admitted that neither the writer nor the editor nor the appellants intended to defame the respondent, but evidence was given by his friends that they thought the article referred to him:-

Held, that the plaintiff was entitled to maintain the action.
Decision of the Court of Appeal, [1909] 2 KB 444, affirmed.

Cases referred to:
Bourke v Warren (1826) 2 C P 307.
Derry v Peek (1889) 14 App Cas 337.
Gibson v Evans (1889) 23 Q B D 384.
Harrison v Smith (1869) 20 L T 713.
Johnson v Aylmer (3 Jac 1) 1 Cro Jac 126.
Latimer v Western Morning News (1871) 25 L T 44.
Le Fanu v Malcolmson (1848) 1 H L C 637.
Le Lievre v Gould [1893] 1 QB 491, 501.
Lowfield v Bancroft (5 Geo 2) 2 Str 934.
Rex v Horne (1777) Cowp 672, 679.
Rex v Lord Abingdon (1794) 1 Esp 226.

MR ARTEMUS JONES, a barrister in practice, had been at one time on the staff of the Sunday Chronicle, a newspaper owned and published by the appellants, and contributed articles signed by himself to some of the appellants' publications. The appellants published in the Sunday Chronicle an article defamatory of a person described as "Artemus Jones." The article is set out in the report of the decision below. At the trial before Channell J. and a special jury at Manchester of an action brought by the respondent against the appellants, friends of the respondent gave evidence that they had read the libel and believed it to refer to the respondent. The evidence of the author of the article and of the editor of the Sunday Chronicle that they did not know of the existence of the respondent was accepted as true by the respondent's counsel. The jury found a verdict for the plaintiff for 1750 damages, and judgment was entered for him. Upon an application by the defendants to set aside the verdict and judgment and to order a new trial, or alternatively to enter judgment for the defendants, the Court of Appeal (Lord Alverstone C.J. and Farwell LJ, Fletcher Moulton LJ. dissenting) affirmed the judgment and dismissed the application. Hence this appeal.

Dec. 3, 6. Norman Craig, KC (Isaacs, KC, with him), for the appellants. It is a necessary element in a cause of action for libel that the words complained of should have been written "of and concerning" the plaintiff. There must have been intention in the writer to apply the words to the plaintiff, and there can be no such intention when the writer does not know even of the existence of the person who imagines the language to be directed to himself. The principle of innuendo has never been applied where the question is one of identity. No doubt a man must be taken to know the reasonable construction of the words he employs; but he cannot know every combination of names in the directory. This principle has been recognized and enforced for centuries. In Johnson v Aylmer, on motion for arrest of judgment, it was held that in the absence of express statement that the words applied to the plaintiff the action could not be maintained. The same doctrine was applied and judgment arrested in Lowfield v Bancroft. In Rex v Horne Lord Mansfield said: "The gist of every charge of every libel consists in the person or matter of and concerning whom or which the words are averred to be said or written." In Rex v Lord Abingdon Lord Kenyon said: "In order to constitute a libel the mind must be in fault and shew a malicious intention to defame." He added that if the language was inadvertently used it would not be a libel. In the present case the words were inadvertently used; there could have been no intention; the mind was not at fault. There may, of course, be indications, intelligible to those who know the circumstances, which point to a particular person, as in Le Fanu v Malcolmson, where language was used of a class of Irish factories which clearly pointed to the plaintiff, and in Bourke v Warren, where asterisks were used which seemed to suggest the plaintiff. There, notwithstanding the summing up of Abbott CJ that the question was whether those who knew the plaintiff would think that the plaintiff was designated, the verdict was for the defendant. The question is who was meant.

[LORD LOREBURN LC. Is it not rather who was hit?]

No. A man cannot be held responsible for remote and improbable results of his actions. The case most favourable to the respondent is Harrison v Smith, where the name of the plaintiff was General Plantagenet Harrison, and the defendant denied knowledge of his existence. The description, however, in the libel was applicable in several respects to the plaintiff, and Lush J. said he had no doubt that the plaintiff was the person intended to be described. Here none of the facts connected with the imaginary Artemus Jones were true of the plaintiff. In Harrison v Smith Lush J. said that if the name were purely fictitious, the creature of the writer's fancy, there would be no libel. The coincidence of name is as purely accidental as that of the American novelist Winston Churchill and the English Minister of State, or of A. L. Smith, the late Master of the Rolls, and the distinguished tutor of Balliol. It cannot be said that the writer was reckless or careless. The name was chosen in order to avoid possibility of libel. There was nothing to suggest the plaintiff like "the certain newspaper" in Latimer v Western Morning News. There is a difference between mere negligence in making a statement and recklessness whether the statement be true or false, innocent or libellous: Le Lievre v Gould, per Bowen LJ, commenting on Derry v Peek. Negligence, however, does not enter into the law of libel, though recklessness may. The question is whether the writer had a guilty mind, a guilty intention. The intention must be that of the writer, and the expression that a man must be understood as intending "the natural meaning of his own words" is loose and misleading. The test is not the impression of bystanders or the influence of friends, but whether the defendant used words which were admittedly defamatory "of and concerning" the plaintiff. The damages were excessive and out of all proportion to the injury suffered.

Hewart (Lush, KC, with him), for the respondent. In an action for libel it is a question for the jury, and the jury only, whether the words complained of are a libel on the plaintiff. The statement of the writer with respect to his own intention is irrelevant, and still more so where the action is brought against persons other than the writer for publishing and circulating the defamatory statements. In Gibson v Evans Lord Coleridge CJ said: "It does not signify what the writer meant. The question is whether the alleged libel was so published by the defendant that the world would apply it to the plaintiff." That is particularly so here, for the world in which the appellants' papers were circulated was well acquainted with the respondent. From 1892 to 1904 the respondent's name was familiar to the appellants' office. From 1901 to 1904 he was well known on a neighbouring circuit. The proof readers ought to have recognized the name. Mr Edward Hulton, the appellants' managing director, admitted that he remembered the respondent well, and that he was rather surprised at the appearance of the name Artemus Jones in the article, and that he looked over the paper when it was produced with great care. The damages were not excessive in view of the gross character of the libel, and they were entirely for the jury. The observations at the close of Farwell LJ's judgment are just and appropriate.

Norman Craig, KC, in reply.

LORD LOREBURN LC. My Lords, I think this appeal must be dismissed. A question in regard to the law of libel has been raised which does not seem to me to be entitled to the support of your Lordships. Libel is a tortious act. What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. A person charged with libel cannot defend himself by shewing that he intended in his own breast not to defame, or that he intended not to defame the plaintiff, if in fact he did both. He has none the less imputed something disgraceful and has none the less injured the plaintiff. A man in good faith may publish a libel believing it to be true, and it may be found by the jury that he acted in good faith believing it to be true, and reasonably believing it to be true, but that in fact the statement was false. Under those circumstances he has no defence to the action, however excellent his intention. If the intention of the writer be immaterial in considering whether the matter written is defamatory, I do not see why it need be relevant in considering whether it is defamatory of the plaintiff. The writing, according to the old form, must be malicious, and it must be of and concerning the plaintiff. Just as the defendant could not excuse himself from malice by proving that he wrote it in the most benevolent spirit, so he cannot shew that the libel was not of and concerning the plaintiff by proving that he never heard of the plaintiff. His intention in both respects equally is inferred from what he did. His remedy is to abstain from defamatory words.

It is suggested that there was a misdirection by the learned judge in this case. I see none. He lays down in his summing up the law as follows: "The real point upon which your verdict must turn is, ought or ought not sensible and reasonable people reading this article to think that it was a mere imaginary person such as I have said - Tom Jones, Mr Pecksniff as a humbug, Mr Stiggins, or any of that sort of names that one reads of in literature used as types? If you think any reasonable person would think that, it is not actionable at all. If, on the other hand, you do not think that, but think that people would suppose it to mean some real person - those who did not know the plaintiff of course would not know who the real person was, but those who did know of the existence of the plaintiff would think that it was the plaintiff - then the action is maintainable, subject to such damages as you think under all the circumstances are fair and right to give to the plaintiff."

I see no objection in law to that passage. The damages are certainly heavy, but I think your Lordships ought to remember two things. The first is that the jury were entitled to think, in the absence of proof satisfactory to them (and they were the judges of it), that some ingredient of recklessness, or more than recklessness, entered into the writing and the publication of this article, especially as Mr Jones, the plaintiff, had been employed on this very newspaper, and his name was well known in the paper and also well known in the district in which the paper circulated. In the second place the jury were entitled to say this kind of article is to be condemned. There is no tribunal more fitted to decide in regard to publications, especially publications in the newspaper Press, whether they bear a stamp and character which ought to enlist sympathy and to secure protection. If they think that the licence is not fairly used and that the tone and style of the libel is reprehensible and ought to be checked, it is for the jury to say so; and for my part, although I think the damages are certainly high, I am not prepared to advise your Lordships to interfere, especially as the Court of Appeal have not thought it right to interfere, with the verdict.

LORD ATKINSON. My Lords, I concur with the judgment which has been delivered by my noble and learned friend on the woolsack, and I also concur substantially with the judgment delivered by Farwell L.J. in the Court of Appeal. I think he has put the case upon its true ground, and I should be quite willing to adopt in the main the conclusions at which he has arrived.

LORD GORELL. My Lords, I concur also with the judgment which has been pronounced by the Lord Chancellor. I also wish to express my concurrence with the observations which my noble and learned friend Lord Atkinson has made upon the judgment of Farwell L.J.

LORD SHAW OF DUNFERMLINE. My Lords, I concur in the observations which have been made by the Lord Chancellor, but for my own part I should desire in terms to adopt certain language which I will now read from the judgment of the Lord Chief Justice: "The question, if it be disputed whether the article is a libel upon the plaintiff, is a question of fact for the jury, and in my judgment this question of fact involves not only whether the language used of a person in its fair and ordinary meaning is libellous or defamatory, but whether the person referred to in the libel would be understood by persons who knew him to refer to the plaintiff."

My Lords, with regard to this whole matter I should put my propositions in a threefold form, and, as I am not acquainted by training with a system of jurisprudence in which criminal libel has any share, I desire my observations to be confined to the question of civil responsibility.

In the publication of matter of a libellous character, that is matter which would be libellous if applying to an actual person, the responsibility is as follows: In the first place there is responsibility for the words used being taken to signify that which readers would reasonably understand by them; in the second place there is responsibility also for the names used being taken to signify those whom the readers would reasonably understand by those names; and in the third place the same principle is applicable to persons unnamed but sufficiently indicated by designation or description.

My Lords, I demur to the observation so frequently made in the argument that these principles are novel. Sufficient expression is given to the same principles by Abbott C.J. in Bourke v Warren (cited in the proceedings), in which that learned judge says: "The question for your consideration is whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant." I think it is out of the question to suggest that that means "meant in the mind of the writer" or of the publisher; it must mean "meant by the words employed." The late Lord Chief Justice Coleridge dealt similarly with the point in Gibson v Evans, when in the course of the argument he remarked: "It does not signify what the writer meant; the question is whether the alleged libel was so published by the defendant that the world would apply it to the plaintiff"

Order of the Court of Appeal affirmed and appeal dismissed with costs.

Lords' Journals, December 6, 1909.

Solicitors: Lewis Lewis; Nicol, Son Jones, for Pickstone Jones, Radcliffe.

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