Defamation - Case Law

Wednesday, January 31, 2007

 

Theaker v Richardson

Theaker v Richardson
[1962] 1 WLR 151, [1962] 1 All ER 229
Court of Appeal

Ormerod, Harman and Pearson L.JJ.

Libel and Slander - Publication of libel - Letter to wife opened by husband - Whether natural and probable consequence of defendant's action.

Libel and Slander - Damages for libel - Assessment by jury - Conduct of defendant.
Fact or Law - Libel - Publication - Letter to wife opened by husband.

The plaintiff and the defendant were both members of their local district council and candidates in an imminent council election. As a result of ill-feeling between them, the defendant wrote an abusive letter to the plaintiff in highly defamatory language. The letter was typed by the defendant, placed in a manila business envelope and sealed by gumming down the flap, which was further secured with Sellotape. The envelope was addressed to the plaintiff in her married name with the addition of the appellation "Coun." before the word "Mrs" The defendant himself put the letter through the letter-box of the house where the plaintiff lived with her husband and married daughter. Shortly afterwards the plaintiff's husband entered the house, saw the letter on the mat and opened it, thinking it was an election address.

At the trial of the action, in which the plaintiff claimed, inter alia, damages for libel, the jury found, in answer to questions left to them, that the defendant anticipated that someone other than the plaintiff would open and read the letter, and that it was a natural and probable consequence of the defendant's writing and delivery of the letter that the plaintiff's husband would open and read it, and they awarded the plaintiff GBP500 damages. On appeal it was contended for the defendant that the findings of the jury were perverse and that, as it was conceded that there was no publication other than to the plaintiff's husband, and as the defendant could not have anticipated that the letter would be opened and read by the plaintiff's husband, there was not any publication of the libel. It was further contended that the damages were excessive:-

Held, (1) (Ormerod L.J. dissenting) that in the circumstances the questions were properly left to the jury and their findings on the issue of publication could not be said to be perverse.

Per Harman L.J. Judicial notice should not be taken of the fact that husbands read wives' letters. The answer to the question of publication of a libel contained in a letter depends on the state of the defendant's knowledge, either proved or inferred, of the conditions likely to prevail in the place to which the libel is destined (post, pp. 157, 158).

Per Pearson L.J. It would not be right to substitute the opinion of the court for the opinion of the jury on the question whether the opening and reading of the letter by the plaintiff's husband was something which could quite easily and naturally happen in the ordinary course of events (post, p. 161).

(2) That having regard to the conduct of the defendant and the language of the libel, the damages awarded could not be said to be wholly out of proportion to the gravity of the libel and that, accordingly, the appeal failed.

Judgment of Hinchcliffe J., sitting with a jury, affirmed.

APPEAL from Hinchcliffe J., sitting with a jury, at Lincoln Assizes.
The following statement of facts is taken from the judgments of Ormerod and Harman L.JJ.

The plaintiff, Mrs Doris Theaker, and the defendant, Frank Richardson, were both at all material times members of the Mablethorpe and Sutton Urban District Council. Both sat in the Conservative interest and on May 5, 1960, both were candidates in the then imminent council election. There was ill-feeling between the parties and on the morning of May 5, 1960, the plaintiff, who lived in Mablethorpe and was the wife of a man who delivered coal in the district, met the defendant's wife in the town. There was a quarrel and the plaintiff abused the defendant's wife and the defendant, which seriously distressed the defendant's wife. The defendant, a jeweller also living in Mablethorpe, came upon the plaintiff and his wife in the course of this quarrel and, finding his wife very distressed, took her home in his car. The defendant then returned to his shop. Being extremely upset and angry about the events which had happened he decided to write to the plaintiff. He started to write the letter but found that because of his angry state the writing was illegible, so he started again and this time typed the letter. The letter was most abusive and defamatory and it was agreed that there was no truth in the defendant's allegations. The letter began

"Mrs Theaker, For the way you treated Mrs Richardson today I am going to show you up in every way I possibly can. I have quite a record on your dishonest activities and I will as from today start to put people wise to you."

The letter then accused the plaintiff of shoplifting, of keeping a brothel, of dishonesty on the council on which she was said not to be fit to serve, of being a prostitute and, in fact, "a very dirty whore" and the letter ended:

"Mrs Theaker, you are nothing but a lying low down brothel-keeping whore and thief, and by the time I have finished you will be sorry indeed that you ever began to meddle in local affairs, or to take upon yourself to make the remarks you have to Mrs Richardson."

The defendant's evidence was that having written the letter, he put it in an ordinary manila business envelope, sealed it by gumming down the flap and made it further secure by putting across the flap a piece of Sellotape. The defendant addressed the envelope by typewriter to "Coun. Mrs D. Theaker, Victoria Road, Mablethorpe" and decided to take it himself to the house and if possible deliver it in person to the plaintiff. On reaching the plaintiff's house, the defendant saw a car outside which led him to believe that some person had called upon her on the business of the council, so he put the letter through the letter-box and walked away. The plaintiff was not in the house at the time, but her husband came in shortly afterwards and, seeing the letter on the mat, opened it, thinking, according to his evidence, that it was an election address. Having read the letter and looked at the address on the envelope, he then realised that the letter was for his wife. The plaintiff's husband then showed the letter to his married daughter, who lived in the house and she in turn read it and took it to a house across the road where she expected to find her mother.

The plaintiff claimed damages against the defendant, first, for an alleged slander on May 4, 1960, and secondly, for the libel in the letter written by the defendant on May 5, 1960. The plaintiff claimed that as the result of the letter her health was affected, she became less popular socially and that in the election in the following year her majority was reduced by 400 votes.

The trial of the action was before Hinchcliffe J., sitting with a jury at Lincoln Assizes on June 8, 1961. The jury found that the words complained of as slander were not spoken and the claim in slander was dismissed. On the libel issue, the only publication relied upon at the trial was that to the plaintiff's husband. On this issue Hinchcliffe J. put the following questions to the jury: (1) Did the plaintiff's husband open and read the letter? (2) Did the defendant anticipate that someone other than the plaintiff would open and read the letter? (3) Was it a natural and probable consequence of the defendant's writing and delivery of the letter that the plaintiff's husband would open and read the letter? (4) How much damages? The jury answered questions (1), (2) and (3) in the affirmative and assessed the damages at GBP500. Hinchcliffe J. directed that on the answers of the jury there had been publication of the libel and gave judgment for the plaintiff for GBP500.

The defendant appealed on the grounds, put shortly, that the jury was perverse and that, the damages were excessive.

Further facts are stated in the judgments.

Cur. adv vult.

Dec. 20. ORMEROD L.J. stated the facts set out above and continued: It is first necessary to consider whether the jury was perverse in answering questions (2) and (3) affirmatively. The test appears to be whether any jury acting reasonably could come to such a conclusion. Mr Gardiner for the defendant has urged that there was not sufficient evidence to justify the finding of the jury. It is unnecessary for him to say that there was no evidence. That is not the test. He drew attention to the evidence of the defendant on the writing and delivery of the letter. His submission was that, if this evidence was accepted, there was certainly no publication, and it was not contended at the hearing that there was publication to anyone other than the plaintiff's husband, but that if the defendant's evidence was not accepted there was still no sufficient evidence whereby a jury, acting reasonably, could have come to a conclusion in favour of the plaintiff.

It is necessary therefore to examine the evidence given by the plaintiff and on her behalf, and counsel for the plaintiff relied on a number of matters which she submitted showed that the defendant anticipated that the letter would be opened and read by someone other than the plaintiff. It was conceded that regard should be had to the contents of the letter as question (ii) involved consideration of the defendant's state of mind. The principal points she relied on were (i) the address on the letter was typewritten, (ii) the letter was unsigned and there was nothing on it to indicate by whom it was sent, (iii) the letter was not stamped, nor was it marked "private", (iv) the envelope was a manilla envelope of the type frequently used for business correspondence. It was submitted that these matters were in themselves sufficient to warrant the finding of the jury but there was added reason in the first sentence of the defamatory letter: "For the way you treated Mrs. Richardson today I am going to show you up in every way I possibly can". It was argued that these words were more consistent with the publication of the letter than otherwise. The husband in his evidence gave as his reason for opening the letter that he thought "it was an election address". It is difficult to understand why he should have thought this in the circumstances of the case, except that there was a local election pending. But that is not a matter for our consideration. What has to be decided is the attitude of mind of the defendant, not that of the plaintiff's husband, and it is difficult to see why the defendant should have anticipated that the plaintiff's husband or anyone else should make a mistake of that kind. My view of the evidence is that none of the matters relied on, taken together or severally, tends to show that the defendant anticipated that someone other than the plaintiff would read that letter, and in consequence I have come to the conclusion that the finding in answer to question (ii) was perverse, and cannot be allowed to stand.

If question (ii) is to be answered in the negative, question (iii) is still left open for consideration. The question there, which was answered in the affirmative by the jury, is:

"Was it a natural and probable consequence of the defendant's writing and delivery of the letter that the plaintiff's husband would open and read the letter?" Again, in my judgment, this answer was perverse. It is to be remembered that the envelope was sealed by using the gum provided and also by the use of a piece of Sellotape applied in such a way as to be an effective sealing device. Surely it cannot be assumed that it is a general practice for one spouse to open the letters of the other, and there was no evidence that the defendant knew that it might happen in this case. Indeed, the evidence of the husband is that in his experience election addresses were usually delivered in unsealed envelopes, and he gave no other cogent reason for opening the letter apart from saying that from time to time requests for the delivery of coal were pushed through the letterbox by his customers. I find it very difficult to accept, and do not accept, that it was a natural and probable consequence of the defendant's writing and delivery of the letter that the plaintiff's husband would open and read it, i.e., that he would make the mistake which he says that he made. I come to this conclusion after taking into account the other matters which have been urged in favour of the jury's answer to question (iii). There is in my judgment, no ground for it. It was perverse.

If the conclusion to which I have come is the right one, the question of damages does not arise, as judgment must necessarily be given for the defendant; but my brethren are of a different view with regard to the answers to questions (ii) and (iii). It is necessary therefore to consider the question of damages. The jury awarded the sum of GBP500, and this is wrong if it was assessed in respect of matters other than publication to the plaintiff's husband. Counsel for the defendant submits that the jury was invited to assess damages on a wider basis. He referred to certain passages in the transcript of the summing-up. First of all, at the bottom of p. 16 the judge says: "Both learned counsel have dealt accurately with the question of damages". He then referred on the next page to certain matter of which she complains:

"She is not treated with the same respect. She was returned to the council with a smaller majority. She is quite unable to sleep. She is quite unable to cope with the development of the land". It is difficult to understand how these matters, or any of them, can be the consequence of publication to the husband; but the question is whether the jury are likely to have taken any of them into consideration. Counsel for the defendant prays in aid a passage where the judge said:

"On the libel, and if there was publication to [the plaintiff's husband], you would take into consideration all these circumstances and you would award what you thought was a fair and reasonable amount having regard to the fact that there was only publication to the husband. It is suggested that, if you do come to award damages in respect of the libel, they should be a trifling or moderate amount." In my judgment, the learned judge in that paragraph of his summing-up emphasised that the jury must award a fair and reasonable amount on the basis of publication of the libel only to the husband. I do not accept therefore the submission that the jury was invited to take into account extraneous matters.

The last point of counsel for the defendant was that, on any view, the sum awarded in damages was excessive. The jury was, of course, entitled to have regard to the conduct of the defendant, and this included the fact that there had been no offer of apology by the defendant. The language in which the libel was expressed was also something which the jury was entitled to consider. In these circumstances it is difficult to see how this part of the verdict was wrong, and I would dismiss this part of the appeal.


Harman, LJ: At the time relevant to this rather sordid and trumpery dispute, the parties were both members of Mablethorpe and Sutton Urban District Council in the county of Lincoln, of which the defendant was chairman. Both sat in the Conservative interest, but it is clear that they were at daggers drawn on some municipal dispute, the details of which do not concern this court. Both were candidates in the then imminent council election. The plaintiff's case was twofold, consisting first of a slander said to have been uttered by the defendant on May 4, 1960, and, second, of a libel uttered on the next day. The case was tried by HINCHCLIFFE, J., and a jury, and, so far as the slander was concerned, was dismissed and no more need be said about it. The libel, however, is a different matter. There is no doubt that the defendant did address a very scurrilous letter to the plaintiff which referred to her in highly libellous language. The only issue before us is whether there was any publication of this libel; it is argued that there was not and that the judge should have withdrawn this issue from the jury. The learned judge took the course of leaving it to the jury to decide whether the defendant anticipated that someone other than the plaintiff would open and read the letter, and whether it was a natural and probable consequence of what the defendant did that the plaintiff's husband would open and read the letter. The jury answered both these questions in the affirmative and awarded L 500 damages. The defendant appeals.

The facts appear to be that on May 5, 1960, the defendant's wife was standing in a street at Mablethorpe in conversation with a neighbour when the plaintiff passed by, and, on being greeted by the neighbour, spoke of the defendant's wife and the defendant in terms of the vulgarest abuse which so seriously distressed the defendant's wife that she sat sown on a neighbouring wall and indulged in a fit of weeping. While thus relieving her feelings she was found by the defendant, who was summoned by a neighbour from his nearby jeweller's shop, and he took her home, and, being highly incensed by her story, determined to issue a counter-attack against the plaintiff by accusing her of the most wounding things of which he could think. He thereupon took pen, or rather Biro, but finding his writing unclear, sat down at his typewriter and produced the following broadside:

"Mrs Theaker, For the way you treated Mrs Richardson today I am going to show you up in every way I possibly can. I have quite a record on your dishonest activities and I will as from today start to put people wise to you." He then accuses her first of shop-lifting, next of keeping a brothel, and next of dishonesty on the council, on which, he says, she is not fit to serve. He then accuses her of being a prostitute, and, in fact, "a very dirty whore", and ends in these terms:

"Mrs Theaker, you are nothing but a lying low down brothel-keeping whore and thief, and by the the time I have finished you will be sorry indeed that you ever began to meddle in local affairs, or took it upon yourself to make the remarks you have to Mrs. Richardson." He inserted this diatribe in a cheap, flimsy, manilla envelope, licked it down and addressed it in type to the plaintiff, and, adding a small strip of Sellotape for good measure, sallied into the street and repaired to the plaintiff's house. He had intended, he says, to hand the letter to the plaintiff at her door, but could not trust himself not to strike her if she confronted him, so he popped his billet-doux through the letter-box and made himself scarce.

At this time, as it happened, the plaintiff was not at home. She was in fact occupied in putting copies of her election address through the letter-boxes of her neighbours in the very same road, and the next person to come on the scene was the plaintiff's husband, who, as the jury believed, entered the house, picked the document up off the mat and opened and read it. It appears that he at once handed it to his stepdaughter and sent her off with it to give it to the plaintiff, who, not having her spectacles with her, handed it to another neighbour and so published the glad news round the town. These latter publications, however, though pleaded, were not relied on at the trial, where the only publication relied on is that to the husband himself. His story is that he imagined that the missive on the mat was an election address and that he picked it up, and, notwithstanding that it was sealed, opened it without looking at it to see the addressee and only became aware from the contents that it was addressed to his wife. This story was accepted by the jury as is shown by their answer to the first question left to them: "Did the plaintiff's husband open and read the letter?" Answer: "Yes".

Now the defence was, as I have said, that this was an action which the defendant could not have anticipated and that therefore there was not any publication. The defendant himself in the witness-box did state that he had no intention that the plaintiff's husband should read it, but the jury obviously disbelieved this, as they were entitled to do. The judge put the matter very clearly before the jury and they answered the second question, viz., whether the defendant anticipated, etc., in the affirmative. Counsel for the defendant says that the judge should not have allowed the jury to consider the question, or, which comes to the same thing in this case, that the jury by the answer they gave showed perversity which invalidates the verdict. Mrs. Lane, in her cogent argument for the plaintiff, relied on the following circumstances in support of her plea that the defendant did intend or must be supposed to have intended the communication to reach a wider public than her to whom it was addressed. She argued that a man who creates a libellous document of this sort must take good care that it does not get about. She points out that he did not mark the envelope "private", nor stamp it nor sign it and that it was contained in a business envelope and might be mistaken for a circular, particularly in the circumstances that election addresses in a circular form were being delivered by the plaintiff and others at that very time in the ordinary course of the election held nine days later. She also relies, as showing the state of the defendant's mind, on the fact, first, that he did not sign the document, second, that he changed his mind and used a typewriter rather than his own manuscript, and, third, that the letter itself by its first paragraph announces his intention to show the plaintiff up in every way and "put people wise to you". That these are all straws in the wind is admitted, but she argued cumulatively they do add up to a suspicion that the defendant in his rage took no thought to confine the document to the plaintiff alone.

It was suggested for the plaintiff that the court should take judicial notice of the fact that husbands do read wives' letters. This I reject, but it does seem to me that the master of the house, when confronted with an unstamped document on the door-mat looking like a circular, is not unlikely to pick it up and read it.

The third question left to the jury was whether it was the natural and probable consequence of what the defendant did that the plaintiff's husband would read the letter. The defendant argued that this also should not have been left to the jury, and urged that the plaintiff's husband could not have thought that the envelope contained an election address or something of the sort because it was sealed not only by the gum on the envelope but by the piece of Sellotape, and that his behaviour in showing the letter to his stepdaughter showed that he was only looking for a stick with which to beat the defendant.

A number of cases on publication were cited to us, but each obviously depends on its own facts and no one is very pertinent to the instant case. In the leading case, Delacroix v Thevenot, the plaintiff's success depended on the facts that the libel was addressed to his place of business and that the defendant knew that a clerk employed there read his master's letters. To a similar effect are Pullman v Hill & Co, and Gomersall v Davies, though the report of the latter is not satisfactory. In Huth v Huth the publication was said to be to the butler who opened the letter out of mere inquisitiveness, and the claim failed because this was a breach of the butler's duty not to be anticipated by the defendant. In Sharp v Skues, the jury answered in the negative a question as to knowledge on the defendant's part of the likelihood of the letter being opened by a clerk or partner of the plaintiff. COZENS-HARDY, MR, said this:

"It would be a publication if the defendant intended the letter to be opened by a clerk or some third person not the plaintiff, or if to the defendant's knowledge it would be opened by a clerk; but the jury had negatived this in the clearest terms, and under these circumstances it was impossible to hold that some act done by a partner or a clerk of the plaintiff by his direction and for his own convenience when absent from the office could be a publication by the defendant under circumstances which the jury have found, in answer to question 2, the defendant knew could not possibly happen." It thus appears that the answer to the question of publication of a libel contained in a letter will depend on the state of the defendant's knowledge, either proved or inferred, of the conditions likely to prevail in the place to which the libel is destined. I have considered the rival arguments and am of opinion that these are just the kind of questions of fact which ought to be left to a jury and that the learned judge was fully justified in doing so. Moreover, in answering questions (ii) and (iii) in the affirmative, the jury, who saw the parties and no doubt observed their demeanour, had some material on which, if, as they did, they disbelieved the defendant and accepted the explanation offered by the plaintiff's husband, they were not without warrant, and could not be said to have been perverse in coming to an affirmative conclusion on both of them. Whether the judge left to himself, or this court for that matter, would have arrived at the same conclusion is not to my mind material. No complaint is made of the judge's summing-up, which certainly did nothing to encourage the jury to say "Yes", and I can see no reason why the verdict could be set aside.

There remains the question whether the damages were so excessive that there ought to be a re-trial, for it seems clear on the authorities that it is not open to this court in a libel action tried with a jury to revoke the award of damages and substitute a lesser sum of its own: see Bray v Ford. The plaintiff when asked to give particulars of the damage suffered could supply no specific details. She said that the fact that the letter was written was common gossip in the town, but this cannot be attributed to the defendant but must be rather to the acts of the plaintiff and her husband, and the lowering of her reputation of which she complains, if read, is attributable to the same source. There was no evidence that her husband believed the highly scurrilous accusations made. The plaintiff also complained that she was returned at the ensuing election with a decreased majority, but it would be fanciful to attribute this to the libel. The defendant in fact lost his seat altogether, and clearly there may be many reasons why the electors of the town took a less favourable view of both parties than they had done at the previous election. There remains only the complaint that the plaintiff was so affected that she could not give her mind to her business.

I have been impressed by these considerations, but, on the whole, I think that they are not strong enough to persuade me that a new trial is necessary in the interests of justice. This court will only interfere with a jury's estimate in very rare cases: see Scott v Musial. The jury was entitled to take into account the defendant's behaviour. He confessed openly that he had no warranty for any of the scandalous things he said nor any belief in them, and this fact, and the plaintiff's assertion of the injury to her feelings, which the defendant himself said it was his object to bring about, justifies, I think, the jury in marking their disapprobation to the tune that they did. I would dismiss the appeal.


Pearson, LJ: At the trial, when the plaintiff and her husband had given all their evidence and the stepdaughter had given her evidence-in-chief, counsel on behalf of the plaintiff said:

"That is my evidence of publication and history of the document. In my submission, I am now entitled to read the letter." Legal argument followed as to the admissibility of the document, and at the conclusion of the argument, the document was admitted and copies were handed to the jury. Then the stepdaughter's evidence was concluded, and afterwards the defendant and his witnesses gave evidence. In considering the questions which arise in this appeal, all the evidence can be taken into account, and this court is not required to disregard the evidence given after the decision that the document was admissible: Payne v Harrison.

The judge in his summing-up said to the jury:

"The real question which you have got to determine on this aspect of the case is whether the letter was ever published. It is a vital issue. Yesterday you heard a legal argument. It was suggested that it was my duty as the judge to rule that there was no evidence of any sort or kind that this letter was in fact published and that, therefore, I ought to withdraw the case from your consideration. On the whole I thought it better that it should be left for you to decide on the facts. The position, therefore, is that the defendant admits that he wrote the letter, that he sealed the envelope, that he reinforced the sealing by Sellotape, that he intended to deliver the letter personally to the plaintiff, but he changed his mind for a reason, which I will remind you of when I come to the evidence, and he put it through the letter-box. Members of the jury, was it published to the plaintiff's husband? What do you think that the defendant ought reasonably to have expected? Do you think that he ought to have contemplated that the natural and probable consequence of sending the letter sealed and counter-sealed and delivered by him through the letter-box was that someone else would open and read it? That is the point and it has to be decided on the evidence. I am sure that you will consider the evidence with very great care and, when you have done so, you will ask yourself the question: Are you able to find on the evidence that the defendant knew or ought to have known or might have expected that the letter would be opened and read by someone other than the plaintiff? You may ask yourselves what more could the defendant have done. It is suggested that he might have put on the envelope 'private', 'personal' or 'confidential'. Do you think in the circumstances it would have made the slightest difference? Members of the jury this really is an important issue because the plaintiff fails in her action based on libel unless she establishes that there was publication. As I say, she only establishes publication if on the evidence you come to the conclusion that the natural and probable consequence of sending the letter and delivering it in the way the defendant did was that somebody else would open and read it." It is evident that on this issue of publication the summing-up was favourable to the defendant, and, indeed, the learned judge was inviting the jury to decide the issue in favour of the defendant, but, nevertheless, he did not think it right to withdraw the issue from them, and in relation to it he put to them the following questions and they gave the following answers:

"Question (ii). Did the defendant anticipate that someone other than the plaintiff would open and read the letter? Answer: Yes. Question (iii). Was it a natural and probable consequence of the defendant's writing and delivery of the letter that the plaintiff's husband would open and read the letter? Answer: Yes." Now if the jury's answers to questions (ii) and (iii) had been negative, the answers would have been unassailable. If the judge had been trying the case without a jury and had given negative answers to those questions, his answers would have been unassailable, or, at any rate, could not have been successfully assailed in this court. It does not, however, follow that the affirmative answers in fact given by the jury should be regarded as perverse, i.e., so unreasonable that no twelve reasonable men and women, properly applying their minds to the correct questions, could have given such answers.

The jury found in answer to question (i) that the plaintiff's husband opened and read the letter, and it is not suggested that that finding was incorrect or even open to doubt. Therefore the jury, in their consideration of questions (ii) and (iii), could start with the knowledge that the libellous letter, having arrived through the letter-box on the mat of the house where the plaintiff and her husband and stepdaughter lived, was picked up and opened and looked at by the plaintiff's husband. The jury could take into account the evidence of the plaintiff's husband as to how he came to do that. The most significant passage comes in the cross-examination:

"Q. -- On this particular day when you came in about the time you mentioned did you see a brown envelope lying just within the front door on the mat? A. -- The back of the door, yes. Q. -- Do you say it was dark? A. -- Yes, a brown envelope. Q -- Perhaps I may have misunderstood you, was there rather a poor light in the hall or not? A. -- No. Q. -- The light was quite good? A. -- Yes. Q. -- So you would have no difficulty in seeing to whom the letter was addressed if you had chosen to look? A. -- In the first place, I never thought. I could see there was no stamp on it and naturally I took it for an election paper. Q. -- Why assume it was an election paper just because it had no stamp? A. -- I picked it up under that thought. Q. -- Did you look at the front of the envelope to see if it did bear an address? A. -- No, not till I opened it. Q. -- Did you look at the back to see whether it was shut down or not? A. -- I never thought. I just ripped it open. Q. -- Are you saying you ripped this envelope open without looking at the back to see whether it was shut down or not? A. -- Yes. Q. -- If it was merely an ordinary envelope containing an election address of the kind which you have already described, there would be no need to rip it open, would there? A. -- You do not give it that thought, do you?" The major point in that passage is not the vague idea of the plaintiff's husband that the letter might be an election address, but the lack of care and thought with which he approached the matter. He did not pause to weigh and consider the probable character of the communication or the extent of his express or implied authority to open letters addressed to his wife. He saw on the mat an unstamped ennvelope of poor quality paper and bearing a typed address. It looked as if it would contain an election address or a circular or some minor business communication. It did not look as if it contained a private letter, still less a confidential letter. With the minimum of care and thought he picked up the document and opened it and began to read it. No doubt people ought to be more careful to avoid reading other people's letters, but the degree of blame attaching to the conduct of the plaintiff's husband is not high, because there was nothing in the external appearance of the document to indicate to him that its contents were private or confidential or important or in any way special.

The jury could properly take into account also the station in life and occupation of the plaintiff's husband, who was employed by coal merchants to deliver coal, and the size and character (if known to the jury) of the town in which he lived, and the facts that there was an election in prospect and that election literature was being distributed. The plaintiff's husband was not likely to be expert in handling documents or to be much interested in them or to attach much importance to them.

The question arising can be put in this form. The plaintiff's husband, acting carelessly and thoughtlessly but meaning no harm, picked up and opened and began to read the letter. Was his conduct something unusual, out of the ordinary and not reasonably to be anticipated, or was it something which could quite easily and naturally happen in the ordinary course of events? In my judgment that is a fair formulation of the question, and, when so formulated, it is seen to be a question of fact which in a trial with a jury can and should be left to and decided by the jury, who have observed the witnesses giving evidence and have and are expected to use their own common sense and general knowledge of the world and perhaps some particular knowledge (if they have it) of the locality concerned and the ways of its inhabitants. In my judgment, it would not be right to substitute the opinion of this court for the opinion of the jury on such a question arising in the course of a trial with a jury.

So far I have been considering the jury's answer to question (iii) (relating to the natural and probable consequences), rather than their answer to question (ii) (relating to the defendant's anticipation). It may well be that, if the jury's answer to question (iii) can be upheld, that is sufficient to decide the appeal without considering the answer to question (ii). In my judgment, however, the jury's answer to question (ii) can be upheld. They had the evidence relevant to question (iii) and also some further points based on the contents of the document. The defendant, having, according to his own evidence, first written or started to write the letter in his own handwriting, changed his mind and typed the whole of it on a new sheet of paper. He did not sign it and did not state his own address. Several reasons might be suggested for the defendant acting in this way, but a possible reason, which it would be open to the jury to consider correct, was that the defendant anticipated that someone other than the plaintiff would open the letter, and the defendant did not wish to reveal his identity to such other person. On this question also I should not think it right to substitute the opinion of this court for the opinion of the jury.

It has also been contended that the jury's award of GBP500 damages for the libel was excessive. It is true that the publication for which the defendant is liable was only publication to the plaintiff's husband, but it was a gross and highly insulting and shameful libel with no foundation of truth at all. In my judgment, the assessment of damages, though on the high side, is not wholly out of proportion to the gravity of the libel, and this court should not interfere with it. I would agree with HARMAN, L.J., that the appeal should be dismissed.

Appeal dismissed with costs.
Leave to appeal to the House of Lords refused.

Solicitors: Peacock Goddard for Haddon Owen Son, Louth; Henry Gover Son for W. Mervyn E. Attale, Lincoln.

The following cases were cited in argument, in addition to those referred to in the judgments:

Powell v Gelston [1916] 2 KB 615; 32 T.L.R. 703.
Rex v Burdett (1820) 4 B. Ald. 95.
Weld-Blundell v Stephens [1920] AC 956; 36 T.L.R. 640, H.L.
Barber (Lionel) Co v Deutsche Bank (Berlin) London Agency [1919] AC 304; 35 T.L.R. 120, H.L.
Greenlands Ltd v Wilmshurst and London Association for Protection of Trade [1913] 3 KB 507, C.A.; [1916] 2 AC 15; 32 T.L.R. 281, H.L.
Tolley v J. S. Fry Sons Ltd [1931] AC 333; 47 T.L.R. 351, H.L.
Praed v Graham (1889) 24 QBD. 53, C.A.
McNichol v Grandy (1932) 1 D.L.R. 225.


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