Defamation - Case Law

Reynolds v Times Newspapers Ltd

2007-01-31T04:17:00.000+08:00

Reynolds v Times Newspapers Ltd and others
[1998] 3 WLR 862, [1998] 3 All ER 961, [1998] EMLR 723
Court of Appeal (Civil Division)

Lord Bingham of Cornhill C.J., Hirst and Robert Walker L.JJ.

Defamation - Privilege - Qualified - Newspaper publication concerning public figure engaged in political events - Whether defence of qualified privilege available - Whether privilege attaching to publication

The plaintiff, a prominent public figure in Ireland, began proceedings for defamation against the defendants, the publishers of an article contained in the British mainland edition of a national newspaper. The publication related to the political crisis in Ireland in 1994 culminating in the plaintiff's resignation as Taoiseach, and the collapse of his coalition government which had, during its course, progressed the peace process in Northern Ireland. The plaintiff claimed that the words complained of bore the meaning that he had deliberately and dishonestly misled the Dáil by suppressing crucial information about the Irish Attorney-General, whose appointment to the Presidency of the High Court he had sought to promote, and had similarly misled his cabinet colleagues by withholding the information and by lying as to when he had obtained it. The defendants pleaded, inter alia, the defence of qualified privilege at common law on the ground that, consonant with article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms,fn1 the public interest in the general publication of information and discussion relating to political issues and the public conduct of elected politicians engaged in them justified such protection. The judge ruled that the defence was not available. The jury returned a verdict in the plaintiff's favour and he was awarded the sum of 1p by way of damages.

On the plaintiff's appeal and the defendants' cross-appeal: -

Held, (1) dismissing the cross-appeal, that the common welfare of a modern plural democracy was best served by ample dissemination of information to the public and vigorous discussion of matters relating to the public life of the community and to those who participated in it; that, in maintaining a proper balance between freedom of speech and a public figure's right to his reputation and consistently with article 10, the defence of common law qualified privilege was available where the defendant had a legal, moral or social duty to publish the information to those, including the general public, who had a corresponding interest in receiving it, such tests to be more readily satisfied than formerly, and where the nature, status and source of the information and the circumstances of its publication were such that it should be protected in the absence of malice; that since the task of the press in informing the public on a matter which was of general concern in Great Britain constituted such a duty and since there was a general public interest in receiving that information, the duty and interest tests were satisfied, but that, since the nature, status and source of the information and the circumstances of its publication were not such, on the facts, as to justify its protection, the defence was not available (post, pp. 899E-G, 900G, 905G, 906A, 909B-C, 910A-B, 911A).

(2) Allowing the appeal and ordering a new trial, that since the judge's factual misdirections in the summing up, taken cumulatively, were such as to deny the plaintiff a fair trial, the jury's verdict and the judgment would be set aside (post, pp. 880B-D, 881H-882A, 887D-E, 888B-D, 889H-890D).

Appeal and Cross-Appeal from French J. and a jury.

By a writ and statement of claim dated 18 August 1995 the plaintiff, Albert Reynolds, claimed:

(1) damages for defamation against the defendants, Times Newspapers Ltd, Alan Ruddock, John Burns and John Witherow, in respect of an article written by the second and third defendants and published by the defendants in the issue of The Sunday Times" for 20 November 1994 and

(2) an injunction restraining further publication of the same or similar words. The plaintiff asserted that in the context of the article as a whole the words complained of in their natural and ordinary meaning meant and were understood to mean that (1) in promoting the appointment of the Irish Attorney-General to the Presidency of the High Court of Ireland the plaintiff had deliberately and dishonestly misled the Dáil by suppressing information he possessed which would render the promotion out of the question; (2) by withholding the information from his coalition cabinet colleagues the plaintiff had deliberately and dishonestly misled them and (3) the plaintiff had lied to those colleagues about when the information came into his possession.

By their amended defence re-served on 4 November 1996 the defendants (1) denied that the words bore or were capable of bearing such meanings, alternatively (2) claimed that the words were published on an occasion of qualified privilege, in particular since (i) they were published in the course of public discussion and political debate concerning the views and conduct of the plaintiff and of other public officers of the Irish government in respect of the discharge of his and their public functions and in particular in the context of the collapse of the coalition government and the plaintiff's resignation as Taoiseach; (ii) the words related wholly to the plaintiff's conduct in his public roles and/or as an elected representative and leader of Fianna Fáil party and to his suitability for such roles; (iii) the reasons for the collapse of the coalition were of considerable importance and interest in the United Kingdom because of the critical stage of the peace process in Northern Ireland; (iv) the words correctly reported the stated reasons for the break up of the coalition, as stated, inter alia, by the spokesman of Mr Dick Spring, the leader of the Labour party, and accordingly (v) the defendants were under a duty, had a legitimate interest and were entitled as publishers, journalists and editor of "The Sunday Times," to communicate the information and opinions contained in the words complained of to their readers who had a legitimate interest in receiving them; alternatively the words were true. By his reply the plaintiff asserted that the defendants had been actuated by express malice.

During the course of the trial, John Burns gave evidence from which it was apparent that he bore no responsibility for the article and the judge accordingly directed that the action be discontinued against him. On 19 November 1996 the jury found in the plaintiff's favour but declined to make any award by way of damages. By his order the judge substituted an award in the sum of 1p, ruled that the defence of qualified privilege was not available to the defendants, and dismissed their application for costs up to the date of a payment into court, refusing them leave to appeal from that part of his order.

By a notice of appeal dated 20 December 1996 the plaintiff appealed on the grounds, inter alia, that (1) the summing up, which required particular care and thoroughness because the facts were complex, the evidence interrupted by illness and an interval of seven days occurring between the plaintiff's closing address and the retirement of the jury, was so confusing and unstructured, with large tracts of evidence unsummarised, that it was of no material assistance to the jury; (2) the summing up might have misled the jury into thinking that the words complained of could be defended as fair comment; (3) when purporting to summarise key factual issues the judge showed a fundamental misunderstanding of them; (4) in purporting to sum up, at the plaintiff's request, crucial factual issues the judge gave confusing directions; (5) the judge mistakenly transposed plaintiff and defendants in referring to issues of fact and to the submissions such that the transpositions were particularly prejudicial to the plaintiff; (6) the judge failed to sum up the plaintiff's factual case on malice; (7) the judge gave a seriously inadequate direction of the question of damages; and that in all the circumstances his misdirections and failure to put the plaintiff's case fairly to the jury resulted in justice neither being done nor seen to be done.

By notices of appeal, dated 23 December 1996 and 31 January 1997, and pursuant to leave granted by McCowan L.J., the defendants cross-appealed on the grounds, inter alia, that the judge (1) erred in law in holding that the defence of qualified privilege at common law was not available to them on the facts found by the jury; (2) misunderstood the meaning and relevance of the chilling effect" of libel actions, referred to in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, as inhibiting freedom of speech; (3) erred in considering that the defence of qualified privilege failed where the matters published did not constitute an urgent warning to the public about an imminent danger; (4) failed to have regard to the constitutional importance of the public interest considerations underlying the defence; (5) failed to recognise the reciprocity of duty and interest between the media and the public where the defamatory material was published in the course of public discussion and debate about political matters; (6) failed to have regard to the principle of freedom of speech contained in article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) which accorded with the common law principle of free speech; and (7) failed to have regard to the political nature and content of the publication complained of; (8) erred in law in ruling that the jury were not entitled to award the plaintiff no damages and in substituting a nominal award; (9) failed to direct himself on the established principles that costs should be awarded to the party which had in substance and reality won the action; and (10) erred in holding that the plaintiff had obtained something of value and was therefore entitled to his costs.

The facts are stated in the judgment of the court.

Lord Lester of Herne Hill Q.C., James Price Q.C. and Emma Dixon for the defendants.Andrew Caldecott Q.C. and Benjamin Hinchcliff for the plaintiff.

The general principle -- analysis and conclusions

We do not for an instant doubt that the common convenience and welfare of a modern plural democracy such as ours are best served by an ample flow of information to the public concerning, and by vigorous public discussion of, matters of public interest to the community. By that we mean matters relating to the public life of the community and those who take part in it, including within the expression 'public life' activities such as the conduct of government and political life, elections (subject to s 10 of the 1952 Act, so long as it remains in force) and public administration, but we use the expression more widely than that, to embrace matters such as (for instance) the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure. Recognition that the common convenience and welfare of society are best served in this way is a modern democratic imperative which the law must accept. In differing ways and to somewhat differing extents the law has recognised this imperative, in the United States, Australia, New Zealand and elsewhere, as also in the jurisprudence of the European Court of Human Rights. It would be strange if the law in this country -- the land of Milton, Paine and Mill -- were to deny this recognition, and the history recited above in our judgment makes plain that it does not.

As it is the task of the news media to inform the public and engage in public discussion of matters of public interest, so is that to be recognised as its duty. The cases cited show acceptance of such a duty, even where publication is by a newspaper to the public at large. In modern conditions what we have called the duty test should, in our view, be rather more readily held to be satisfied.

Corresponding to the duty of the media to inform is the interest of the public to receive information. Article 10 of the convention lays down a right to receive information. We have no doubt that the public also have an interest to receive information on matters of public interest to the community (as opposed, of course, to information about matters in which the public may happen to be interested). The cases have accepted that the public generally may have an interest to receive information published in a newspaper, so satisfying that we have called the interest test. In modern conditions the interest test should also, in our view, be rather more readily held to be satisfied.

It would, however, in our judgment, run counter to English authority and do nothing to promote the common convenience of our society to discard the circumstantial test. Assuming in each case that a statement is defamatory and factually false although honestly believed to be true, it is one thing to publish a statement taken from a government press release, or the report of a public company chairman, or the speech of a university vice-chancellor, and quite another to publish the statement of a political opponent, or a business competitor or a disgruntled ex-employee; it is one thing to publish a statement which the person defamed has been given the opportunity to rebut, and quite another to publish a statement without any recourse to the person defamed where such recourse was possible; it is one thing to publish a statement which has been so far as possible checked, and quite another to publish it without such verification as was possible and as the significance of the statement called for. While those who engage in public life must expect and accept that their public conduct will be the subject of close scrutiny and robust criticism, they should not in our view be taken to expect or accept that their conduct should be the subject of false and defamatory statements of fact unless the circumstances of the publication are such as to make it proper, in the public interest, to afford the publisher immunity from liability in the absence of malice. We question whether in practice this is a test very different from the test of reasonableness upheld in Australia.

The view of the law which Lord Lester has urged upon us is in our view both too broad and too narrow. It is too broad because it exposes those who are properly the subject of political speech to false and defamatory factual statements about them with no protection save on proof, which will often be difficult or impossible, that the publisher lacked an honest belief in the truth of the statement. It is too narrow because confined to political speech or discussion. For understandable forensic reasons, Lord Lester framed his submission in terms wide enough to cover this case but no wider. That does not, however, absolve us from the need to state the law in terms which are clear and workable and serve the common convenience and welfare of society. If a businessman were said to have corrupted a serving politician, Lord Lester's 'political speech' qualified privilege would, in the absence of malice, protect the publisher in a suit by the politician. But what of a suit by the businessman? If, as we understood him to accept, the same privilege would apply in a suit by the businessman, it would seem unlikely that the privilege could be confined to political speech. But if the privilege could be and were so confined, we question whether the common convenience and welfare of society would be thereby served: there are, after all, many matters which affect the public interest and the health of society much more profoundly than the small change of political controversy.

It is also plain that Lord Lester's rule would emasculate, in the area of political speech, the defence of fair comment. While, as we have shown, this defence permits the expression of very strong opinions, so long as they are honest, it does require (subject to s 6 of the 1952 Act) that the facts commented upon be true. If Lord Lester's rule were adopted, the defence of fair comment would be unnecessary in political cases, as Cantley J pointed out in Littler's case; the important safeguard of truth would effectively disappear.

In his reply Lord Lester sought to demonstrate that his rule would have the positive virtue of discouraging irresponsible journalism by imposing a salutary discipline on the editor and journalists involved, since, absent a plea of justification, the focus of a trial would shift from the conduct of the plaintiff to the conduct of the newspaper, which in answer to a plea of malice would need to vindicate the conscientiousness of its investigation and of its conduct leading up to the publication. In our view, application of the circumstantial test would exert the same beneficial influence; and we remind ourselves that the law of defamation is concerned primarily to maintain the proper balance, not to regulate the practice of journalism.

For all these reasons we reject Lord Lester's proposed rule and adhere to the existing tests of qualified privilege, applied in the way we have described.

XX

The application of these principles to the present case

It is well settled that the question whether the occasion of publication is protected by qualified privilege is a question of law to be decided by the judge, but before he can reach that decision it may be necessary for the jury to make findings on any issues of fact in dispute upon which the answer to the question depends (Duncan and Neill para 14.07, Hebditch v MacIlwaine [1894] 2 QB 54 at 58, [1891-4] All ER Rep 444 at 445 per Lord Esher MR and Adam v Ward [1917] AC 309 at 318, [1916-17] All ER Rep 157 at 160 per Lord Finlay LC).

As already noted, in the present case there was only one issue of fact which was pertinent to qualified privilege left to the jury, namely whether the words complained of correctly reported Mr Spring's stated reasons for withdrawing from the government. This question was answered in the defendants' favour, and is not the subject matter of the plaintiff's appeal. We can therefore proceed on the footing that this answer was correct, and that otherwise the relevant facts are not in issue.

The circumstances in which Mr Reynolds' government fell from power were matters of undoubted public interest to the people of Great Britain. We think it clear that the defendants had a duty to inform the public of these matters and the public had a corresponding interest to receive that information. So the duty and interest tests were, in general, satisfied. We cannot, however, regard the circumstantial test as satisfied:

1. The allegation that Mr Reynolds had lied was attributed in the article to an unidentified colleague of Mr Spring. This source was later identified, as a result of the exchange of witness statements, as a Mr Finlay, who was not a deputy but was described in the Dail as 'Mr Spring's programme manager'. There was no evidence before the jury that Mr Spring authorised Mr Finlay to accuse Mr Reynolds of lying, and Mr Finlay (although present in court for part of the trial) was never called as a witness. In the bitter aftermath of these events, a member of the staff of one of Mr Reynolds' leading political opponents could scarcely be judged an authoritative source for so serious a factual allegation.

2. Mr Spring did not in terms accuse Mr Reynolds of lying to the Dail. He did, in his speech on Wednesday, 16 November, strongly criticise Mr Reynolds for failing to disclose what he had known on Tuesday, 15 November about the Duggan case; but his criticism was consistent with an honest but mistaken omission on Mr Reynolds' part.

3. The defendants wholly failed to record Mr Reynolds' own account of his conduct, as described by him when addressing the Dail in the Wednesday debate.

4. The defendants did not, between the debate on Wednesday and publication on Sunday, alert Mr Reynolds to their highly damaging conclusion that he had lied to his coalition colleagues and knowingly misled the Dail so as to obtain his observations on it.

5. The defendants failed to resolve whether Mr Reynolds was a victim of circumstance, as conveyed to Irish readers in the 'House of Cards' article, or a devious liar, as conveyed to readers on the mainland of Britain. It should have been obvious that he could not be both.

Given the nature, status and source of the defendants' information, and all the circumstances of the publication, this was not in our judgment a publication which should in the public interest be protected by privilege in the absence of proof of actual malice.

Appeal allowed.
Cross-appeal dismissed.

For the full case, Read here

Jameel and Another v Wall Street Journal Europe

2007-01-31T04:12:00.000+08:00

Defamation Suit

Defamation — Parties — Corporation — Newspaper article alleging monitoring by Saudi Arabia of bank accounts of prominent businessmen to prevent transfer of funds to terrorist organisations — Businessman and his trading company named — Whether proof of special damage an essential element in libel — Human Rights Act 1998, Sch 1, Pt 1, art 10

Jameel and Another v Wall Street Journal Europe Sprl: [2005] EWCA Civ 74

CA: Lord Phillips of Worth Matravers MR, Sedley and Jonathan Parker LJJ: 3 February 2005

The Wall Street Journal lost their appeal in what will be seen by the media as a setback for Reynolds privilege: many media defendants had hoped that the Court of Appeal would relax the test for Reynolds privilege which Eady J had formulated as being: “whether the media had an obligation to publish and whether the public had a need to have the information contained within it in the sense that it would be wrong to deprive the public of it”. The Court of Appeal declined to interfere with this test holding that “on the facts of this case it does not seem to us that the precise definition of Reynolds privilege was material”.

The Court of Appeal also refused the WSJE’s appeals to the effect that (i) there should be no presumption of damage in the case of overseas trading corporations that do not trade in this jurisdiction; (ii) that the common law presumption of falsity infringes Article 6 and Article 10; and (iii) that the jury should have been required to deliver a verdict recording its decision as to the actual meaning of the article complained of.

The common law rule by which special damage was not required to be proved in order to establish a cause of action in libel, damage being presumed once the libel was proved, was unaffected by art10 of the Human Rights Convention in respect of a corporation. The same rule applied to a foreign corporation with a trading reputation within the jurisdiction.

The Court of Appeal so held, dismissing the appeal of the defendant, the Wall Street Journal Europe Sprl against, inter alia, the ruling of Eady J on 5 December 2003 on the claim brought by Mohammed Abdul Latif Jameel and Abdul Latif Jameel Co Ltd, rejecting the defendant's challenge on art 10 grounds to the presumption of damage once a libel was proved.

LORD PHILLIPS OF WORTH MATRAVERS MR, giving the judgment of the court, said that the jury concluded that the claimant company, a substantial Saudi Arabian trading company of which the first claimant was the general manager and president, had been defamed by the article published by the defendants and that the appropriate award of damages was £10,000.Those findings were made after directions on English law by the judge that they should award appropriate damages if they found that the claimant company had a trading reputation in England and that the article bore a defamatory meaning that was apt to damage that trading reputation. The company had not attempted to prove that the article had caused it any specific financial loss by way of special damages. In interlocutory proceedings before the trial Mr Robertson contended that the Human Rights Act 1998 required the court to redefine the English law of libel as it related to corporations or foreign corporations. If English law was to be compatible with art 10 of the Human Rights Convention it had to require proof of special damage as an essential element in the cause of action in libel. The judge rejected that submission. There was no dispute as to the relevant principles of English law prior to the coming into force of the 1998 Act. Mr Robertson submitted that it was not necessary in order to protect the reputation of others to allow a corporation to recover damages for libel when it had not demonstrated that the libel had caused it pecuniary damage; the effect on freedom of the press afforded by English law before the 1998 Act was disproportionate to the object that it was intended to achieve. Their Lordships said that the difficulty that a trading corporation would often have in proving that a defamation calculated to cause damage to its trading reputation had resulted in specific financial loss was obvious. The judge pointed out that an important object of the law of defamation was to provide a means for those defamed to achieve vindication. A requirement to prove special damage would leave many an injured corporation without remedy. Their Lordships agreed. Such a requirement would not go far enough to provide necessary protection for the reputation of corporations that were at risk of being damaged by inaccurate press reports. S and M v United Kingdom (1993) 18 EHRRCD 172 suggested that the Commission saw no objection in principle to a foreign corporation receiving the same protection for its reputation within the British jurisdiction as a British corporation. Their Lordships saw every reason why they should receive the same treatment. Differential treatment would be likely to constitute discrimination in the accordance of art 6 rights, contrary to the prohibition imposed by art 14. It was likely in practice that a foreign corporation which traded outside this jurisdiction but not within it would have greater difficulty in establishing that it had a trading reputation within this jurisdiction. If it succeeded however, the interests of justice required that the same principles of law should apply to its claim for defamation.

Appearances: Geoffrey Robertson QC and Rupert Elliott (Finers Stephens Innocent) for the defendant. James Price QC and Justin Rushbrooke (Peter Carter-Ruck & Partners) for the claimants.

3 February 2005 Lord Phillips MR, Sedley and Jonathan Parker LJJ

This is only the fourth consideration by the Court of Appeal of Reynolds privilege (GKR Karate, Grobbelaar, Al-Fagih and Loutchansky) since Lord Nicholls, in introducing his ten non-exhaustive factors in 1999, anticipated that “over time, a valuable corpus of case law will be built up” and the first since the Privy Council’s judgment in Bonnick v Morris. In this judgment the Court of Appeal reviews the test for Reynolds privilege and discusses what role meaning and the subjective belief of the Defendant have to the availability of the Reynolds defence. It also introduces new pleading obligations for both parties.

The Facts

The Wall Street Journal published an article in February 2002 that identified Mr Jameel´s group of companies as being among those whose bank accounts were being monitored by Saudi authorities, at the US government´s request, in connection with the actual or potential funding of terrorism. In an action brought by the main company in the Group and by Mr Jameel, the Defendant contended that the publication was protected by Reynolds privilege and disputed the Claimants´ ´reasonable grounds to suspect´ meaning, contending it was not defamatory or at worst bore the lowest tier of gravity meaning ‘grounds to investigate’.

The action was tried before a jury in December 2003. In answer to a shopping list of questions put to the jury, the jury accepted that the words bore a defamatory meaning of the Claimants but rejected the journalist’s case as to his contact with 4 out of 5 of his anonymous sources in Saudi Arabia (none of whom were called). The jury also did not accept his account of his attempts to verify the story and contact the Claimants in advance of publication. Subject to the defence of qualified privilege, the jury awarded damages of £30,000 to Mr Jameel and £10,000 to the company. On the basis of the jury´s findings of fact, Eady J rejected the defence of qualified privilege. The Defendant’s appealed on qualified privilege, presumption of falsity and presumption of damage.

Qualified privilege

Issues:

(i) Whether Eady J applied an erroneous and over-strict test of Reynolds privilege?
(ii) Whether Eady J should have obtained from the jury their decision as to the meaning of the words and whether he wrongly imposed his own meaning?
(iii) Whether Eady J should have left to the jury the question of whether the Defendant intended to defame the Claimants and was wrong to rule that Bonnick had no application to the facts of this case?

Lord Phillips MR gave the judgment of the Court:

(i) The Test: The Court of Appeal upheld Eady J’s identification of the primary question as being “whether the peculiar circumstances gave rise to a duty to publish. The question of whether there had been responsible journalism or the exercise of due professional skill and care were matters to be addressed when answering that primary question. ..The duty in question was a social or moral duty and that the obverse of this test was whether it was in the public interest at the time for the words to be published”.

“Responsible journalism is insufficiently precise to constitute the sole test for Reynolds privilege. … The requirements of responsible journalism will vary according to the particular circumstances and, in particular, the gravity of the defamation. Responsible journalism must be demonstrated before Reynolds privilege can be established. But there is a further element that must be demonstrated. The subject matter of the publication must be of such a nature that it is in the public interest that it should be published. This is a more stringent test that that the public should be interested in receiving the information.” (paragraph 87)

However, the court declined on the facts to wrestle with the Defendant’s submission that Eady J’s refinement of the test (“whether the media had an obligation to publish and whether the public had a need to have the information contained within it in the sense that it would be wrong to deprive the public of it”) was too stringent a test. Or, that if gravity is particularly relevant, why the jury should not have been asked for their decision as to the meaning of the article.

(ii)Jury finding on meaning: The difference between ´reasonable grounds to suspect´ and ‘grounds to investigate’ meanings can be a narrow one, the court held. “Had the issue of Reynolds privilege been likely to turn on whether the words bore the more or the less serious meaning, it might have been necessary to invite the jury to choose between the two. But the judge plainly did not consider that the precise nature of the defamatory sting was capable of affecting the outcome. We share that view.” (paragraph 84)

(iii) Defendant’s subjective belief: In a novel direction, the Court of Appeal held that responsible journalism requires a belief in the truth of the article’s [obvious] defamatory implications: “It is clear that he [the judge] did not consider that the article was one which it was in the public interest to publish without adequate attempts at verification and without belief in the truth of its defamatory implications. We are of the same mind”. (paragraph 89)

(iv) Bonnick v Morris: The Court of Appeal ruled that Bonnick has no application where the article is obviously capable of bearing a defamatory meaning and therefore questions as to whether Bonnick represents the law in this jurisdiction and, if it does, how it applies remain unanswered.

“In Bonnick it seems that the Defendant gave evidence that she did not appreciate that her article had a defamatory meaning. The Judicial Committee of the Privy Council considered that she could be forgiven for this and therefore had not acted irresponsibly in publishing the article. … We consider that the judge was justified in holding that no responsible journalist could have ignored the fact that the article was capable of a defamatory meaning. .. For these reasons we have concluded that the judge was correct to rule that Bonnick v Morris had no application to the facts of this case.” (paragraphs 90-97)

Other quotes to note

Pleading obligations:

“It seems to us that, in seeking to demonstrate that a publication accords with the requirements of responsible journalism, a publisher will almost certainly wish to adduce evidence of the subjective belief of those responsible for the publication…to demonstrate that it was reasonable to believe that a defamatory article was true…or that a third party was conducting an investigation…[or] to demonstrate that it was reasonable not to appreciate that an article bore a defamatory meaning.” (paragraph 27)

“It is important that the pleadings should make clear where a defendant is relying on reasonable belief in the truth of matters published, or their implications, and where he is not. It is also important that the claimant should make clear whether or not he denies that the belief was held, or whether he merely contends that the belief was not reasonable.” (paragraph 31)

Judge or jury: “The division between the role of the judge and that of the jury when Reynolds privilege is in issue is not an easy one; indeed it is open to question whether jury trial is desirable at all in such a case.” (paragraph 70)

Presumption of falsity: Where the jury are asked to make findings of fact relevant to Reynolds privilege “it does not seem right to us that the jury should apply a presumption that the article was false”. (paragraph 61).

Presumption of Damage

The Defendants submitted that Article 10 required a redefinition of English libel law to require corporations or, alternatively, foreign corporations which do not trade here, to prove special damage as a prerequisite for a cause of action in libel. The Court of Appeal rejected this argument on the grounds that a requirement to prove special damage would leave an injured corporation without a means to achieve vindication; and, in respect of foreign corporations, agreed with the European Commission of Human Rights that there is no objection in principle to a foreign corporation receiving the same protection for its reputation within this jurisdiction as a British corporation, and differential treatment would be likely to constitute discrimination in the accordance of Article 6 rights, which is prohibited by Article 14.

Permission to appeal to the House of Lords was refused.

Sarah Palin
3rd February 2005

Reynolds case law referred to in the judgment:

George Galloway v Daily Telegraph Group Limited [2004] EWHC 2786
Jameel v The Wall Street Journal Europe 26 November 2003 EWCA Civ 1694 Eady J.
Bonnick v Morris [2002] UKPC 31
Loutchansky v Times Newspapers [2002] EWHC 2490 Gray J.
English v Hastie Publishing Limited [2002] All ER (D) 11
Loutchansky v Times Newspapers (Nos 2-5) [2001] EWCA Civ 1805 CA
Al-Fagih v HH Saudi Research & Marketing (UK) Ltd [2001] EWCA Civ 1634
Grobbelaar v News Group Newspapers [2001] EWCA Civ 33
GKR Karate Ltd v Yorkshire Post Newspapers Ltd [2001] 1 WLR 2571
Reynolds v Times Newspapers [2001] 2 AC 127

Rupert Elliott, instructed by Finers Stephens Innocent, appeared for the Defendant

Source: www.onebrickcourt.com

Berkoff v Burchill

2007-01-31T04:09:00.000+08:00

Berkoff v Burchill and another
[1996] 4 All ER 1008, [1997] EMLR 139
Court Of Appeal (Civil Division)

Cur adv vult. 31 July 1996. The following judgments were delivered.

Neill LJ: Introduction

This appeal raises questions as to the meaning of the word 'defamatory' and as to the nature of an action for defamation.

The facts can be stated quite shortly. 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. The second defendants, Times Newspapers Ltd, are the publishers of the Sunday Times.

In the issue of the Sunday Times dated 30 January 1994 Miss Burchill wrote a review of the film 'The Age of Innocence'. In the course of the review, in a general reference to film directors, Miss Burchill wrote: '. . . film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people . . .' Nine months later Miss Burchill returned to the same theme in a review of the film 'Frankenstein'. In this review, which was published in the issue of the Sunday Times dated 6 November 1994, Miss Burchill described a character in the film called 'the Creature'. She wrote:

'The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature -- no bolts in the neck or flat-top hairdo -- and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking.'

Following the publication of the second article Mr Berkoff made an immediate complaint. The complaint was rejected, however, and on 1 March 1995 Mr Berkoff issued a writ. In para 6 of the statement of claim, which was served on the same day as the writ was issued, it was alleged that the passages in the two articles which I have set out meant and were understood to mean that Mr Berkoff was hideously ugly. It is to be noted that in para 5 of the statement of claim, after the words in the second article of which complaint was made had been set out, it was pleaded that the plaintiff would rely on the full text of the article for context.

The defendants then issued a summons pursuant to RSC Ord 14A seeking an order that the following question of law might be determined: '. . . whether the meaning pleaded in paragraph 6 of the Statement of Claim . . . is capable of being defamatory . . .' The summons also included an application for an order that if it were determined that the meaning was not defamatory the action should be dismissed.

The summons was heard by Sir Maurice Drake sitting as a judge of the High Court. After hearing argument the judge dismissed the defendants' application, but he gave the defendants leave to appeal.

The primary submission on behalf of Mr Berkoff before the judge was that the meaning was defamatory because to call a person 'hideously ugly' would tend to expose him to ridicule. As a subsidiary submission it was contended that such a description would tend to cause other people to shun or avoid Mr Berkoff. The judge stated his conclusion as follows:

'I must say I am doubtful whether to call a person "hideously ugly" exposes that person to ridicule, but I have come to the conclusion that it is likely to lead ordinary reasonable people to shun the plaintiff, despite the fact that being hideously ugly is no reflection on a person's character or good reputation. For that reason, albeit with hesitation, I hold that to call a person "hideously ugly" is defamatory. If justification is pleaded, that will involve the jury deciding whether the plea is made out.'

The Law

Before stating my conclusion I propose to examine the relevant question of law under three headings. (1) The scope of the present application. (2) Definitions of 'defamatory'. (3) Additional guidance from decided cases. I turn to the first heading.

The scope of the present application

No order has been made as to the mode of trial in this case. One must therefore proceed on the basis that the action is likely to be tried, if at all, with a jury. The question of fact: libel or no libel, is a matter for the jury. But the court has jurisdiction to rule that as a matter of law words are incapable of being defamatory.

A striking example of the exercise of this jurisdiction is provided by the decision of the House of Lords in Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, [1881-5] All ER Rep 86. In that case the defendants sent a circular to a large number of their customers stating: 'Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.' The contents of the circular became known and there was a run on the bank. Nevertheless it was held by the House of Lords, affirming the majority decision of the Court of Appeal ((1880) 5 CPD 514), that in their natural meaning the words were not capable in law of being defamatory. It may be noted that the issue had been left to the jury at the trial but they had been unable to agree.

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. The practice of pleading inferential meanings is of course to be encouraged where it is appropriate and it may often enable the court to dispose of extravagant inferential meanings under the new procedure enshrined in Ord 82, r 3A(1). But there may be cases, of which this perhaps is one, where the inferential meaning may not provide a wholly adequate paraphrase for the words complained of. Thus it was suggested in the review that the appearance of the 'marginally better-looking' creature was such that it was 'rejected in disgust' when it came out 'scarred and primeval'.

I turn next to consider some of the definitions of the word 'defamatory'.

Definitions of 'defamatory'

I am not aware of any entirely satisfactory definition of the word 'defamatory'. It may be convenient, however, to collect together some of the definitions which have been used and approved in the past.

(1) The classic definition is that given by Lord Wensleydale (then Parke B) in Parmiter v Coupland (1840) 6 M & W 105 at 108, 151 ER 340 at 341-342. He said that in cases of libel it was for the judge to give a legal definition of the offence which he defined as being:

'A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule . . .'

It is to be noted that in Tournier v National Provincial Union Bank of England Ltd [1924] 1 KB 461 at 477, [1923] All ER Rep 550 at 557 Scrutton LJ said that he did not think that this 'ancient formula' was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt. Atkin LJ expressed a similar opinion ([1924] 1 KB 461 at 486-487, [1923] All ER Rep 550 at 561):

'I do not think that it is a sufficient direction to a jury on what is meant by "defamatory" to say, without more, that it means: Were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers, but it is obvious that suggestions might be made very injurious to a man's character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt -- for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred, or contempt.'

(2) In Scott v Sampson (1882) 8 QBD 491, [1881-5] All ER Rep 628 the Divisional Court was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. Cave J explained the nature of the right which is concerned in an action for defamation (8 QBD 491 at 503, [1881-5] All ER Rep 628 at 634):

'Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.'

But, as was pointed out in the Faulks Committee Report of the Committee on Defamation (Cmnd 5909) para 62, the word 'discredit' is itself incapable of precise explication. Nevertheless, in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 Scrutton LJ said that he thought that it was difficult to improve upon the language of this definition.

(3) In Sim v Stretch [1936] 2 All ER 1237 at 1240 Lord Atkin expressed the view that the definition in Parmiter v Coupland was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:

'. . . after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

(4) As I have already observed, both Scrutton and Atkin LJJ in Tournier's case drew attention to words which damage the reputation of a man as a business man. In Drummond-Jackson v British Medical Association [1970] 1 All ER 1094, [1970] 1 WLR 688 the Court of Appeal was concerned with an article in a medical journal which, it was suggested, impugned the plaintiff's reputation as a dentist. Lord Pearson said:

'. . . words may be defamatory of a trader or business man or professional man, although they do not impute any moral fault or defect of personal character. They [can] be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity . . .' (See [1970] 1 All ER 1094 at 1104, [1970] 1 WLR 688 at 698-699.)

It is therefore necessary in some cases to consider the occupation of the plaintiff.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587 Slesser LJ expanded the Parmiter v Coupland definition to include words which cause a person to be shunned or avoided. He said:

'. . . not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff's] part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Slesser LJ added, in relation to the facts in that case:

'One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.'

(6) The Faulks Committee in their report recommended that for the purpose of civil cases the following definition of defamation should be adopted (para 65):

'Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.'

(7) In the American Law Institute's Restatement of the Law of Torts (2nd edn, 1977) @ 559 the following definition is given:

'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'

(8) In some of the Australian states a definition of 'defamatory matter' is contained in the Code. In the Queensland Criminal Code @ 366, the following definition is given:

'Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him . . .'

It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. On the other hand, insults which do not diminish a man's standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define.

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. I turn therefore to such guidance as can be found in any of the decided cases to which we were either referred by counsel or to which my own limited researches have led me.

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. Lord Wilmot CJ said (2 Wils 403 at 403-404, 95 ER 886 at 886-887):

'. . . 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. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases . . . 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. 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. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable . . .'

(3) In Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745 the plaintiff, who was the inventor of a pneumatic tyre, had assigned his interest in the invention to the defendant company. The plaintiff lived in Ireland. In 1891 the plaintiff had presented the defendants' predecessors in title with a portrait bust of himself and his signature to be used as a trade mark. Later, however, the defendants, without his permission, exhibited advertisements containing pictures intended to represent him, but the features, which were adapted from the portrait bust, were placed upon the body of a very tall man dressed in an exaggeratedly foppish manner, wearing a tall white hat, a white waistcoat, and carrying a cane and eyeglass. The plaintiff had obtained an injunction against the defendant company in the Chancery Division in Ireland and the injunction was upheld by the Court of Appeal in Ireland. On appeal to the House of Lords it was argued that leave should not have been given in Ireland to serve a writ in London.

But in the course of his speech dismissing the appeal Lord Birkenhead LC said ([1921] 1 AC 367 at 372, [1920] All ER Rep 745 at 747):

'. . . it was said in the Court below, and it has been said in other cases which were cited to us as authorities, that such an injunction would not be granted, and ought not to be granted, unless the Court was satisfied of the existence of a serious libel, unless indeed it was prepared confidently and completely to anticipate what the view of a jury would be when it tried the case. I am not sure that in some of the passages cited the case was not in this particular put rather too high. It is sufficient for me to say that the judges who tried this case have reached the conclusion (and I agree with them) that the exhibition of these pictures constituted a circumstance in which that which was done was at least capable of a defamatory meaning.'

It is to be noted that the claim in the writ for an injunction was to restrain the defendant from publishing any advertisements etc which contained pictures representing the plaintiff 'in absurd or unsuitable costumes or attitudes, or caricatures of him, or otherwise calculated to expose him to public ridicule or contempt by misrepresenting his appearance or costume'.

(4) In Zbyszko v New York American Inc (1930) 228 App Div 277 the plaintiff, who was a wrestler, complained of references to him in an article published by the defendant on the theory of evolution. The article called attention to the structural resemblance between man and the gorilla. Near the top of the page appeared a photograph of the plaintiff in a wrestling pose and under it the words: 'Stanislaus Zbyszko, the Wrestler, not Fundamentally Different from the Gorilla in Physique.' In close proximity to the photograph of the plaintiff was a photograph of a gorilla (described in the law report as 'hideous looking') which was stated to be a mounted specimen of the Great Kivu gorilla in Lord Rothschild's museum in England.

The plaintiff's action, in which it was pleaded that 'the plaintiff enjoyed an international reputation for dignity . . . kindliness, intelligence and culture', was struck out by the Supreme Court for New York County but the case was reinstated by the Appellate Division. It was held that the tendency of the article was to disgrace him and bring him into ridicule and contempt. Judge McAvoy said (at 413):

'Any written article is actionable . . . if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of others and deprives him of their society. It is not necessary that words impute disgraceful conduct to the plaintiff. If they render him contemptible or ridiculous, he is equally entitled to redress.'

The court therefore held that the case could not be struck out before trial.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 the plaintiff complained that she could be identified with the character Princess Natasha in the film 'Rasputin, the Mad Monk'. The princess claimed damages on the basis that the film suggested that, by reason of her identification with 'Princess Natasha', she had been seduced by Rasputin. The princess was awarded GBP25,000 damages. In the Court of Appeal it was contended that if the film indicated any relations between Rasputin and 'Natasha' it indicated a rape of Natasha and not a seduction. Slesser LJ considered the defamatory nature of the film (at 587):

'I, for myself, cannot see that from the plaintiff's point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Later he added (at 588):

'When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.'

(6) In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August the Tatler magazine published an article which contained a reference to a residential health spa of which Mr Stephen Winyard and Mrs Winyard, his mother, were directors. Mrs Winyard complained of a sentence which was in these terms:

'His mother, Gaynor Winyard, is an internationally renowned beauty therapist (known more familiarly on the beautician circuit as "the international boot").'

One of the meanings of 'boot' relied on by Mrs Winyard was that it meant 'an ugly harridan'. At the trial the judge considered a submission that in this meaning the word 'boot' was not capable of being defamatory. He said:

'In their context, applied to a lady who is in the alleged libel itself described as "a beauty therapist" and "someone on the beautician circuit" to call such a person "an ugly harridan" is in my view something beyond mere ridicule. It is ridicule, no doubt. But it is ridicule which the jury, if it thought right, would be entitled, within the well-known definition (which I am not going to repeat here but I shall state to the jury) of finding to be defamatory.'

It seems that the 'well-known definition' was that of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240: '. . . would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

In his judgment in the Court of Appeal, Staughton LJ referred to the judge's ruling:

'It may well be that in some cases to say that a woman is old and ugly, or haggard, would do no more than cause injury to her feelings, and would not affect her character or reputation. But the judge evidently felt that a different view might be taken if she was a beauty therapist. It is not, apparently, that she would have failed to exercise her skills in preserving her own appearance, but that others might not wish her to be in charge of their treatment. I entirely agree with the judge's ruling on this point; it was open for the jury, if they thought fit, to find that this meaning of the word "boot" lowered Mrs Winyard's character or reputation. Whether they did reach that conclusion we do not know. It may be that their verdict was entirely based on the innuendo meaning of a promiscuous slut, which (if established) was far more serious.'

(7) In Manning v Hill (A-G for Ontario and ors, interveners) (1995) 126 DLR (4th) 129 the Supreme Court of Canada was concerned with the relationship between the common law action for defamation and the Canadian Charter of Rights and Freedoms. In the course of his judgment, with which the majority of the court agreed, Cory J considered the nature of actions for defamation and the values which require to be balanced. He traced the history of proceedings designed to protect the reputation of an individual (see 126 DLR (4th) 129 at 160). Starting with the provisions of the Mosaic Code, he came to the origins of the modern law of libel arising out of De Libellis Famosis (1605) 5 Co Rep 125a, 77 ER 250. He continued (at 162-163):

'Though the law of defamation no longer serves as a bulwark against the duel and blood feud, the protection of reputation remains of vital importance . . . reputation is the "fundamental foundation on which people are able to interact with each other in social environments". At the same time, it serves the equally or perhaps more fundamentally important purpose of fostering our self-image and sense of self-worth. This sentiment was eloquently expressed by Stewart J in Rosenblatt v Baer ((1966) 383 US 75 at 92) who stated: "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty."'

The Appeal

It was argued by counsel on behalf of the defendants that the defining characteristic of the tort of defamation is injury to reputation. The fact that a statement may injure feelings or cause annoyance is irrelevant to the question whether it is defamatory. He reminded us of Lord Atkin's words in Sim v Stretch [1936] 2 All ER 1237 at 1242 that though the freedom of juries to award damages for injury to reputation was one of the safeguards of liberty, the protection was undermined 'when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs'. Counsel accepted that it was also defamatory to say of a man that he was suffering from certain diseases. But he submitted that a distinction had to be drawn between an allegation that someone was physically unwholesome and an allegation that someone was physically aesthetically unpleasing. It could not be defamatory to say that an individual had a streaming cold or influenza, so the test of being 'shunned or avoided' cannot be applied without qualification. It was also to be noted that it was not suggested in Youssoupoff's case that there was no evidence on which it could be found that the passages complained of were defamatory of the princess (see (1934) 50 TLR 581 at 586 per Greer LJ).

Counsel for Mr Berkoff on the other hand, contended that the present case fell into the residual class where words may be defamatory even though they do not involve an attack on a plaintiff's reputation in the conventional sense. Mr Berkoff, it was said, is an actor and a person in the public eye. It was submitted that it was necessary to look at all the circumstances. If this were done it was a matter for the jury to decide whether the words complained of had passed beyond mere abuse and had become defamatory by exposing Mr Berkoff to ridicule or by causing him to be shunned or avoided. It was suggested that these two passages would reduce the respect with which he was regarded. The words complained of might affect Mr Berkoff's standing among the public, particularly theatre-goers, and among casting directors.

In his helpful submissions on behalf of the defendants, Mr Price QC rightly underlined the central characteristic of an action for defamation as being a remedy for publications which damage a person's reputation. But the word 'reputation', by its association with phrases such as 'business reputation', 'professional reputation' or 'reputation for honesty', may obscure the fact that in this context the word is to be interpreted in a broad sense as comprehending all aspects of a person's standing in the community. A man who is held up as a figure of fun may be defeated in his claim for damages by, for example, a plea of fair comment, or, if he succeeds on liability, the compensation which he receives from a jury may be very small. But nevertheless, the publication of which he complains may be defamatory of him because it affects in an adverse manner the attitude of other people towards him.

It was argued on behalf of Mr Berkoff that in considering whether words were capable of a defamatory meaning it was necessary to take into account every possible group of persons to whom the words might apply. Could the words be defamatory of anyone? In my opinion this is not the right test. Mr Price was, I think, correct when he submitted that the question has to be answered in relation to the claim by the plaintiff. But if this is done, one has to look at the words and judge them in the context in which they were published. Indeed, as I pointed out earlier, it is pleaded in the statement of claim that reliance will be placed on the context. It may be that in some contexts the words 'hideously ugly' could not be understood in a defamatory sense, but one has to consider the words in the surroundings in which they appear. This task is particularly important in relation to the second article.

It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning. In the present case it would, in my view, be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule

I confess that I have found this to be a far from easy case, but in the end I am satisfied that it would be wrong to decide this preliminary issue in a way which would withdraw the matter completely from the consideration of a jury.

I would dismiss the appeal.

Millett LJ: Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously. The question, however, is how the words would be understood, not how they were meant, and that issue is pre-eminently one for the jury. So, however difficult it may be, we must assume that Miss Julie Burchill might be taken seriously. The question then is: is it defamatory to say of a man that he is 'hideously ugly'?

Mr Berkoff is a director, actor and writer. Physical beauty is not a qualification for a director or writer. Mr Berkoff does not plead that he plays romantic leads or that the words complained of impugn his professional ability. In any case, I do not think that it can be defamatory to say of an actor that he is unsuitable to play particular roles.

How then can the words complained of injure Mr Berkoff's reputation? They are an attack on his appearance, not on his reputation. It is submitted on his behalf that they would cause people 'to shun and avoid him' and would 'bring him into ridicule'. Ridicule, it will be recalled, is the second member of a well-known trinity.

The submission illustrates the danger of trusting to verbal formulae. Defamation has never been satisfactorily defined. All attempted definitions are illustrative. None of them is exhaustive. All can be misleading if they cause one to forget that defamation is an attack on reputation, that is on a man's standing in the world.

The cases in which words have been held to be defamatory because they would cause the plaintiff to be shunned or avoided, or 'cut off from society', have hitherto been confined to allegations that he suffers from leprosy or the plague or the itch or is noisome and smelly (see Villers v Monsley (1769) 2 Wils 403, 95 ER 886). I agree with Phillips LJ and for the reasons which he gives that an allegation of ugliness is not of that character. It is a common experience that ugly people have satisfactory social lives -- Boris Karloff is not known to have been a recluse -- and it is a popular belief for the truth of which I am unable to vouch that ugly men are particularly attractive to women.

I have no doubt that the words complained of were intended to ridicule Mr Berkoff, but I do not think that they made him look ridiculous or lowered his reputation in the eyes of ordinary people. There are only two cases which have been cited to us which are at all comparable. In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August it was held to be defamatory to call a professional beautician 'an ugly harridan', not because it reflected on her professional ability, but because some of her customers might not wish to be attended by an ugly beautician. I find the decision difficult to understand, since the reasoning suggests that the cause of action would more properly be classified as malicious falsehood rather than defamation, so that actual loss of custom would have to be proved.

The other case is Zbyszko v New York American Inc (1930) 228 App Div 277. A newspaper published a photograph of a particularly repulsive gorilla. Next to it appeared a photograph of the plaintiff above the caption: 'Stanislaus Zbyszko, the Wrestler, Not Fundamentally Different from the Gorilla in Physique.' The statement of claim alleged that this had caused the plaintiff to be shunned and avoided by his wife (who presumably had not noticed her husband's physique until it was pointed out to her by the newspaper), his relatives, neighbours, friends and business associates, and had injured him in his professional calling. The Appellate Division of the New York Supreme Court held that the caption was capable of being defamatory. The case was presumably cited to us as persuasive authority. I find it singularly unpersuasive except as a demonstration of the lengths of absurdity to which an enthusiastic New York lawyer will go in pleading his case.

The line between mockery and defamation may sometimes be difficult to draw. When it is, it should be left to the jury to draw it. Despite the respect which is due to the opinion of Neill LJ, whose experience in this field is unrivalled, I am not persuaded that the present case could properly be put on the wrong side of the line. A decision that it is an actionable wrong to describe a man as 'hideously ugly' would be an unwarranted restriction on free speech. And if a bald statement to this effect would not be capable of being defamatory, I do not see how a humorously exaggerated observation to the like effect could be. People must be allowed to poke fun at one another without fear of litigation. It is one thing to ridicule a man; it is another to expose him to ridicule. Miss Burchill made a cheap joke at Mr Berkoff's expense; she may thereby have demeaned herself, but I do not believe that she defamed Mr Berkoff.

If I have appeared to treat Mr Berkoff's claim with unjudicial levity it is because I find it impossible to take it seriously. Despite the views of my brethren, who are both far more experienced than I am, I remain of the opinion that the proceedings are as frivolous as Miss Burchill's article. The time of the court ought not to be taken up with either of them. I would allow the appeal and dismiss the action.

Phillips LJ: In almost every case in the books, words which have been held to be defamatory have been words which have denigrated the character or personality of the plaintiff, not the corporeal envelope housing that personality. The law of defamation protects reputation, and reputation is not generally dependent upon physical appearance. Exceptionally there has been a handful of cases where words have been held defamatory, notwithstanding that they do not attack character or personality.

In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453 as Hunt J observed:

'At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him . . . I say that this is "in general" the position, as the common law also recognizes as defamatory an imputation which, although not disparaging, tends to make other persons "shun or avoid" the plaintiff, for example, by attributing to him that he is insane: Morgan v Lingen ((1863) 8 LT 800); or by attributing to her that she has been raped . . . as well as an imputation that displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part . . .'

'Shun or avoid'

It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment, such a statement differs in principle from those statements about a person's physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact -- illness, madness, filthiness or defilement. Hearsay factual statements about a person's physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual's features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person's features.

It is perhaps for this reason that statements disparaging, however strongly, a person's features -- and many such statements must have been published -- have never been the subject of a successful claim for defamation.

My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff.

Ridicule

The class of cases where it has been held defamatory, or potentially defamatory, to damage a plaintiff's reputation by exposing him to ridicule is too elusive to encapsulate in any definition. No case demonstrates this better than Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745, the facts of which have been outlined by Neill LJ. The preliminary point which is the subject of this appeal does not require us to decide whether the publications complained of are capable of constituting defamation of the plaintiff. The question which we are asked to answer is whether 'the meaning pleaded in para 6 of the statement of claim is capable of being defamatory'. The defendants' skeleton argument opened with the following proposition:

'The question of law for decision is whether a statement that an individual is ugly is capable of being defamatory. If this statement is defamatory in one case, it must be in all cases (in the absence of any distinguishing features of a particular case), so that there is no distinction to be drawn between the technical issue of law, whether it is capable of being defamatory, and the technical issue of fact, whether it is defamatory.'

I cannot accept this proposition. Where the issue is whether words have damaged a plaintiff's reputation by exposing him to ridicule, that question cannot be answered simply by considering whether the natural and ordinary meaning of the words used is defamatory per se. The question has to be considered in the light of the actual words used and the circumstance in which they are used. There are many ways of indicating that a person is hideously ugly, ranging from a simple statement of opinion to that effect, which I feel could never be defamatory, to words plainly intended to convey that message by way of ridicule. The words used in this case fall into the latter category. Whether they have exposed the plaintiff to ridicule to the extent that his reputation has been damaged must be answered by the jury. The preliminary point raised by the defendants cannot be answered in the affirmative and this appeal should be dismissed.

Disposition:
Appeal dismissed.

Resource book: Berkoff v Burchill and another
1/31/2007 12:07:23 AM
Berkoff v Burchill and another
[1996] 4 All ER 1008, [1997] EMLR 139
Court Of Appeal (Civil Division)

Resource book: Berkoff v Burchill and another
1/31/2007 12:07:39 AM
Neill, Millett, Phillips LJJ

Cur adv vult. 31 July 1996. The following judgments were delivered.

Neill LJ: Introduction

This appeal raises questions as to the meaning of the word 'defamatory' and as to the nature of an action for defamation.

The facts can be stated quite shortly. 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. The second defendants, Times Newspapers Ltd, are the publishers of the Sunday Times.

In the issue of the Sunday Times dated 30 January 1994 Miss Burchill wrote a review of the film 'The Age of Innocence'. In the course of the review, in a general reference to film directors, Miss Burchill wrote: '. . . film directors, from Hitchcock to Berkoff, are notoriously hideous-looking people . . .' Nine months later Miss Burchill returned to the same theme in a review of the film 'Frankenstein'. In this review, which was published in the issue of the Sunday Times dated 6 November 1994, Miss Burchill described a character in the film called 'the Creature'. She wrote:

'The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature -- no bolts in the neck or flat-top hairdo -- and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking.'

Following the publication of the second article Mr Berkoff made an immediate complaint. The complaint was rejected, however, and on 1 March 1995 Mr Berkoff issued a writ. In para 6 of the statement of claim, which was served on the same day as the writ was issued, it was alleged that the passages in the two articles which I have set out meant and were understood to mean that Mr Berkoff was hideously ugly. It is to be noted that in para 5 of the statement of claim, after the words in the second article of which complaint was made had been set out, it was pleaded that the plaintiff would rely on the full text of the article for context.

The defendants then issued a summons pursuant to RSC Ord 14A seeking an order that the following question of law might be determined: '. . . whether the meaning pleaded in paragraph 6 of the Statement of Claim . . . is capable of being defamatory . . .' The summons also included an application for an order that if it were determined that the meaning was not defamatory the action should be dismissed.

The summons was heard by Sir Maurice Drake sitting as a judge of the High Court. After hearing argument the judge dismissed the defendants' application, but he gave the defendants leave to appeal.

The primary submission on behalf of Mr Berkoff before the judge was that the meaning was defamatory because to call a person 'hideously ugly' would tend to expose him to ridicule. As a subsidiary submission it was contended that such a description would tend to cause other people to shun or avoid Mr Berkoff. The judge stated his conclusion as follows:

'I must say I am doubtful whether to call a person "hideously ugly" exposes that person to ridicule, but I have come to the conclusion that it is likely to lead ordinary reasonable people to shun the plaintiff, despite the fact that being hideously ugly is no reflection on a person's character or good reputation. For that reason, albeit with hesitation, I hold that to call a person "hideously ugly" is defamatory. If justification is pleaded, that will involve the jury deciding whether the plea is made out.'

The Law

Before stating my conclusion I propose to examine the relevant question of law under three headings. (1) The scope of the present application. (2) Definitions of 'defamatory'. (3) Additional guidance from decided cases. I turn to the first heading.

The scope of the present application

No order has been made as to the mode of trial in this case. One must therefore proceed on the basis that the action is likely to be tried, if at all, with a jury. The question of fact: libel or no libel, is a matter for the jury. But the court has jurisdiction to rule that as a matter of law words are incapable of being defamatory.

A striking example of the exercise of this jurisdiction is provided by the decision of the House of Lords in Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741, [1881-5] All ER Rep 86. In that case the defendants sent a circular to a large number of their customers stating: 'Henty & Sons hereby give notice that they will not receive in payment cheques drawn on any of the branches of the Capital and Counties Bank.' The contents of the circular became known and there was a run on the bank. Nevertheless it was held by the House of Lords, affirming the majority decision of the Court of Appeal ((1880) 5 CPD 514), that in their natural meaning the words were not capable in law of being defamatory. It may be noted that the issue had been left to the jury at the trial but they had been unable to agree.

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. The practice of pleading inferential meanings is of course to be encouraged where it is appropriate and it may often enable the court to dispose of extravagant inferential meanings under the new procedure enshrined in Ord 82, r 3A(1). But there may be cases, of which this perhaps is one, where the inferential meaning may not provide a wholly adequate paraphrase for the words complained of. Thus it was suggested in the review that the appearance of the 'marginally better-looking' creature was such that it was 'rejected in disgust' when it came out 'scarred and primeval'.

I turn next to consider some of the definitions of the word 'defamatory'.

Definitions of 'defamatory'

I am not aware of any entirely satisfactory definition of the word 'defamatory'. It may be convenient, however, to collect together some of the definitions which have been used and approved in the past.

(1) The classic definition is that given by Lord Wensleydale (then Parke B) in Parmiter v Coupland (1840) 6 M & W 105 at 108, 151 ER 340 at 341-342. He said that in cases of libel it was for the judge to give a legal definition of the offence which he defined as being:

'A publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule . . .'

It is to be noted that in Tournier v National Provincial Union Bank of England Ltd [1924] 1 KB 461 at 477, [1923] All ER Rep 550 at 557 Scrutton LJ said that he did not think that this 'ancient formula' was sufficient in all cases, because words might damage the reputation of a man as a business man which no one would connect with hatred, ridicule or contempt. Atkin LJ expressed a similar opinion ([1924] 1 KB 461 at 486-487, [1923] All ER Rep 550 at 561):

'I do not think that it is a sufficient direction to a jury on what is meant by "defamatory" to say, without more, that it means: Were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers, but it is obvious that suggestions might be made very injurious to a man's character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt -- for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred, or contempt.'

(2) In Scott v Sampson (1882) 8 QBD 491, [1881-5] All ER Rep 628 the Divisional Court was concerned with the question as to the evidence which might be called by a defendant relating to the character of the plaintiff. Cave J explained the nature of the right which is concerned in an action for defamation (8 QBD 491 at 503, [1881-5] All ER Rep 628 at 634):

'Speaking generally the law recognizes in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit; and if such false statements are made without lawful excuse, and damage results to the person of whom they are made, he has a right of action.'

But, as was pointed out in the Faulks Committee Report of the Committee on Defamation (Cmnd 5909) para 62, the word 'discredit' is itself incapable of precise explication. Nevertheless, in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 Scrutton LJ said that he thought that it was difficult to improve upon the language of this definition.

(3) In Sim v Stretch [1936] 2 All ER 1237 at 1240 Lord Atkin expressed the view that the definition in Parmiter v Coupland was probably too narrow and that the question was complicated by having to consider the person or class of persons whose reaction to the publication provided the relevant test. He concluded this passage in his speech:

'. . . after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

(4) As I have already observed, both Scrutton and Atkin LJJ in Tournier's case drew attention to words which damage the reputation of a man as a business man. In Drummond-Jackson v British Medical Association [1970] 1 All ER 1094, [1970] 1 WLR 688 the Court of Appeal was concerned with an article in a medical journal which, it was suggested, impugned the plaintiff's reputation as a dentist. Lord Pearson said:

'. . . words may be defamatory of a trader or business man or professional man, although they do not impute any moral fault or defect of personal character. They [can] be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity . . .' (See [1970] 1 All ER 1094 at 1104, [1970] 1 WLR 688 at 698-699.)

It is therefore necessary in some cases to consider the occupation of the plaintiff.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587 Slesser LJ expanded the Parmiter v Coupland definition to include words which cause a person to be shunned or avoided. He said:

'. . . not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on [the plaintiff's] part, but also if it tends to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiff's] part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Slesser LJ added, in relation to the facts in that case:

'One may, I think, take judicial notice of the fact that a lady of whom it has been said that she has been ravished, albeit against her will, has suffered in social reputation and in opportunities of receiving respectable consideration from the world.'

(6) The Faulks Committee in their report recommended that for the purpose of civil cases the following definition of defamation should be adopted (para 65):

'Defamation shall consist of the publication to a third party of matter which in all the circumstances would be likely to affect a person adversely in the estimation of reasonable people generally.'

(7) In the American Law Institute's Restatement of the Law of Torts (2nd edn, 1977) @ 559 the following definition is given:

'A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.'

(8) In some of the Australian states a definition of 'defamatory matter' is contained in the Code. In the Queensland Criminal Code @ 366, the following definition is given:

'Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him . . .'

It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. On the other hand, insults which do not diminish a man's standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define.

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. I turn therefore to such guidance as can be found in any of the decided cases to which we were either referred by counsel or to which my own limited researches have led me.

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. Lord Wilmot CJ said (2 Wils 403 at 403-404, 95 ER 886 at 886-887):

'. . . 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. I see no difference between this and the cases of leprosy and plague; and it is admitted that an action lies in those cases . . . 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. 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. I think the publishing any thing of a man that renders him ridiculous is a libel and actionable . . .'

(3) In Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745 the plaintiff, who was the inventor of a pneumatic tyre, had assigned his interest in the invention to the defendant company. The plaintiff lived in Ireland. In 1891 the plaintiff had presented the defendants' predecessors in title with a portrait bust of himself and his signature to be used as a trade mark. Later, however, the defendants, without his permission, exhibited advertisements containing pictures intended to represent him, but the features, which were adapted from the portrait bust, were placed upon the body of a very tall man dressed in an exaggeratedly foppish manner, wearing a tall white hat, a white waistcoat, and carrying a cane and eyeglass. The plaintiff had obtained an injunction against the defendant company in the Chancery Division in Ireland and the injunction was upheld by the Court of Appeal in Ireland. On appeal to the House of Lords it was argued that leave should not have been given in Ireland to serve a writ in London.

But in the course of his speech dismissing the appeal Lord Birkenhead LC said ([1921] 1 AC 367 at 372, [1920] All ER Rep 745 at 747):

'. . . it was said in the Court below, and it has been said in other cases which were cited to us as authorities, that such an injunction would not be granted, and ought not to be granted, unless the Court was satisfied of the existence of a serious libel, unless indeed it was prepared confidently and completely to anticipate what the view of a jury would be when it tried the case. I am not sure that in some of the passages cited the case was not in this particular put rather too high. It is sufficient for me to say that the judges who tried this case have reached the conclusion (and I agree with them) that the exhibition of these pictures constituted a circumstance in which that which was done was at least capable of a defamatory meaning.'

It is to be noted that the claim in the writ for an injunction was to restrain the defendant from publishing any advertisements etc which contained pictures representing the plaintiff 'in absurd or unsuitable costumes or attitudes, or caricatures of him, or otherwise calculated to expose him to public ridicule or contempt by misrepresenting his appearance or costume'.

(4) In Zbyszko v New York American Inc (1930) 228 App Div 277 the plaintiff, who was a wrestler, complained of references to him in an article published by the defendant on the theory of evolution. The article called attention to the structural resemblance between man and the gorilla. Near the top of the page appeared a photograph of the plaintiff in a wrestling pose and under it the words: 'Stanislaus Zbyszko, the Wrestler, not Fundamentally Different from the Gorilla in Physique.' In close proximity to the photograph of the plaintiff was a photograph of a gorilla (described in the law report as 'hideous looking') which was stated to be a mounted specimen of the Great Kivu gorilla in Lord Rothschild's museum in England.

The plaintiff's action, in which it was pleaded that 'the plaintiff enjoyed an international reputation for dignity . . . kindliness, intelligence and culture', was struck out by the Supreme Court for New York County but the case was reinstated by the Appellate Division. It was held that the tendency of the article was to disgrace him and bring him into ridicule and contempt. Judge McAvoy said (at 413):

'Any written article is actionable . . . if it tends to expose the plaintiff to public contempt, ridicule, aversion, or disgrace, or induce an evil opinion of him in the minds of others and deprives him of their society. It is not necessary that words impute disgraceful conduct to the plaintiff. If they render him contemptible or ridiculous, he is equally entitled to redress.'

The court therefore held that the case could not be struck out before trial.

(5) In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 the plaintiff complained that she could be identified with the character Princess Natasha in the film 'Rasputin, the Mad Monk'. The princess claimed damages on the basis that the film suggested that, by reason of her identification with 'Princess Natasha', she had been seduced by Rasputin. The princess was awarded GBP25,000 damages. In the Court of Appeal it was contended that if the film indicated any relations between Rasputin and 'Natasha' it indicated a rape of Natasha and not a seduction. Slesser LJ considered the defamatory nature of the film (at 587):

'I, for myself, cannot see that from the plaintiff's point of view it matters in the least whether this libel suggests that she has been seduced or ravished. The question whether she is or is not the more or the less moral seems to me immaterial in considering this question whether she has been defamed, and for this reason, that, as has been frequently pointed out in libel, not only is the matter defamatory if it brings the plaintiff into hatred, ridicule, or contempt by reason of some moral discredit on her part, but also if tends to make the plaintiff be shunned and avoided and that without any moral discredit on her part. It is for that reason that persons who have been alleged to have been insane, or to be suffering from certain diseases, and other cases where no direct moral responsibility could be placed upon them, have been held to be entitled to bring an action to protect their reputation and their honour.'

Later he added (at 588):

'When this woman is defamed in her sexual purity I do not think that the precise manner in which she has been despoiled of her innocence and virginity is a matter which a jury can properly be asked to consider.'

(6) In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August the Tatler magazine published an article which contained a reference to a residential health spa of which Mr Stephen Winyard and Mrs Winyard, his mother, were directors. Mrs Winyard complained of a sentence which was in these terms:

'His mother, Gaynor Winyard, is an internationally renowned beauty therapist (known more familiarly on the beautician circuit as "the international boot").'

One of the meanings of 'boot' relied on by Mrs Winyard was that it meant 'an ugly harridan'. At the trial the judge considered a submission that in this meaning the word 'boot' was not capable of being defamatory. He said:

'In their context, applied to a lady who is in the alleged libel itself described as "a beauty therapist" and "someone on the beautician circuit" to call such a person "an ugly harridan" is in my view something beyond mere ridicule. It is ridicule, no doubt. But it is ridicule which the jury, if it thought right, would be entitled, within the well-known definition (which I am not going to repeat here but I shall state to the jury) of finding to be defamatory.'

It seems that the 'well-known definition' was that of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240: '. . . would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?'

In his judgment in the Court of Appeal, Staughton LJ referred to the judge's ruling:

'It may well be that in some cases to say that a woman is old and ugly, or haggard, would do no more than cause injury to her feelings, and would not affect her character or reputation. But the judge evidently felt that a different view might be taken if she was a beauty therapist. It is not, apparently, that she would have failed to exercise her skills in preserving her own appearance, but that others might not wish her to be in charge of their treatment. I entirely agree with the judge's ruling on this point; it was open for the jury, if they thought fit, to find that this meaning of the word "boot" lowered Mrs Winyard's character or reputation. Whether they did reach that conclusion we do not know. It may be that their verdict was entirely based on the innuendo meaning of a promiscuous slut, which (if established) was far more serious.'

(7) In Manning v Hill (A-G for Ontario and ors, interveners) (1995) 126 DLR (4th) 129 the Supreme Court of Canada was concerned with the relationship between the common law action for defamation and the Canadian Charter of Rights and Freedoms. In the course of his judgment, with which the majority of the court agreed, Cory J considered the nature of actions for defamation and the values which require to be balanced. He traced the history of proceedings designed to protect the reputation of an individual (see 126 DLR (4th) 129 at 160). Starting with the provisions of the Mosaic Code, he came to the origins of the modern law of libel arising out of De Libellis Famosis (1605) 5 Co Rep 125a, 77 ER 250. He continued (at 162-163):

'Though the law of defamation no longer serves as a bulwark against the duel and blood feud, the protection of reputation remains of vital importance . . . reputation is the "fundamental foundation on which people are able to interact with each other in social environments". At the same time, it serves the equally or perhaps more fundamentally important purpose of fostering our self-image and sense of self-worth. This sentiment was eloquently expressed by Stewart J in Rosenblatt v Baer ((1966) 383 US 75 at 92) who stated: "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being -- a concept at the root of any decent system of ordered liberty."'

The Appeal

It was argued by counsel on behalf of the defendants that the defining characteristic of the tort of defamation is injury to reputation. The fact that a statement may injure feelings or cause annoyance is irrelevant to the question whether it is defamatory. He reminded us of Lord Atkin's words in Sim v Stretch [1936] 2 All ER 1237 at 1242 that though the freedom of juries to award damages for injury to reputation was one of the safeguards of liberty, the protection was undermined 'when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs'. Counsel accepted that it was also defamatory to say of a man that he was suffering from certain diseases. But he submitted that a distinction had to be drawn between an allegation that someone was physically unwholesome and an allegation that someone was physically aesthetically unpleasing. It could not be defamatory to say that an individual had a streaming cold or influenza, so the test of being 'shunned or avoided' cannot be applied without qualification. It was also to be noted that it was not suggested in Youssoupoff's case that there was no evidence on which it could be found that the passages complained of were defamatory of the princess (see (1934) 50 TLR 581 at 586 per Greer LJ).

Counsel for Mr Berkoff on the other hand, contended that the present case fell into the residual class where words may be defamatory even though they do not involve an attack on a plaintiff's reputation in the conventional sense. Mr Berkoff, it was said, is an actor and a person in the public eye. It was submitted that it was necessary to look at all the circumstances. If this were done it was a matter for the jury to decide whether the words complained of had passed beyond mere abuse and had become defamatory by exposing Mr Berkoff to ridicule or by causing him to be shunned or avoided. It was suggested that these two passages would reduce the respect with which he was regarded. The words complained of might affect Mr Berkoff's standing among the public, particularly theatre-goers, and among casting directors.

In his helpful submissions on behalf of the defendants, Mr Price QC rightly underlined the central characteristic of an action for defamation as being a remedy for publications which damage a person's reputation. But the word 'reputation', by its association with phrases such as 'business reputation', 'professional reputation' or 'reputation for honesty', may obscure the fact that in this context the word is to be interpreted in a broad sense as comprehending all aspects of a person's standing in the community. A man who is held up as a figure of fun may be defeated in his claim for damages by, for example, a plea of fair comment, or, if he succeeds on liability, the compensation which he receives from a jury may be very small. But nevertheless, the publication of which he complains may be defamatory of him because it affects in an adverse manner the attitude of other people towards him.

It was argued on behalf of Mr Berkoff that in considering whether words were capable of a defamatory meaning it was necessary to take into account every possible group of persons to whom the words might apply. Could the words be defamatory of anyone? In my opinion this is not the right test. Mr Price was, I think, correct when he submitted that the question has to be answered in relation to the claim by the plaintiff. But if this is done, one has to look at the words and judge them in the context in which they were published. Indeed, as I pointed out earlier, it is pleaded in the statement of claim that reliance will be placed on the context. It may be that in some contexts the words 'hideously ugly' could not be understood in a defamatory sense, but one has to consider the words in the surroundings in which they appear. This task is particularly important in relation to the second article.

It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader and not by the intention of the publisher, but the perceived intention of the publisher may colour the meaning. In the present case it would, in my view, be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule

I confess that I have found this to be a far from easy case, but in the end I am satisfied that it would be wrong to decide this preliminary issue in a way which would withdraw the matter completely from the consideration of a jury.

I would dismiss the appeal.

Millett LJ: Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously. The question, however, is how the words would be understood, not how they were meant, and that issue is pre-eminently one for the jury. So, however difficult it may be, we must assume that Miss Julie Burchill might be taken seriously. The question then is: is it defamatory to say of a man that he is 'hideously ugly'?

Mr Berkoff is a director, actor and writer. Physical beauty is not a qualification for a director or writer. Mr Berkoff does not plead that he plays romantic leads or that the words complained of impugn his professional ability. In any case, I do not think that it can be defamatory to say of an actor that he is unsuitable to play particular roles.

How then can the words complained of injure Mr Berkoff's reputation? They are an attack on his appearance, not on his reputation. It is submitted on his behalf that they would cause people 'to shun and avoid him' and would 'bring him into ridicule'. Ridicule, it will be recalled, is the second member of a well-known trinity.

The submission illustrates the danger of trusting to verbal formulae. Defamation has never been satisfactorily defined. All attempted definitions are illustrative. None of them is exhaustive. All can be misleading if they cause one to forget that defamation is an attack on reputation, that is on a man's standing in the world.

The cases in which words have been held to be defamatory because they would cause the plaintiff to be shunned or avoided, or 'cut off from society', have hitherto been confined to allegations that he suffers from leprosy or the plague or the itch or is noisome and smelly (see Villers v Monsley (1769) 2 Wils 403, 95 ER 886). I agree with Phillips LJ and for the reasons which he gives that an allegation of ugliness is not of that character. It is a common experience that ugly people have satisfactory social lives -- Boris Karloff is not known to have been a recluse -- and it is a popular belief for the truth of which I am unable to vouch that ugly men are particularly attractive to women.

I have no doubt that the words complained of were intended to ridicule Mr Berkoff, but I do not think that they made him look ridiculous or lowered his reputation in the eyes of ordinary people. There are only two cases which have been cited to us which are at all comparable. In Winyard v Tatler Publishing Co Ltd (1991) Independent, 16 August it was held to be defamatory to call a professional beautician 'an ugly harridan', not because it reflected on her professional ability, but because some of her customers might not wish to be attended by an ugly beautician. I find the decision difficult to understand, since the reasoning suggests that the cause of action would more properly be classified as malicious falsehood rather than defamation, so that actual loss of custom would have to be proved.

The other case is Zbyszko v New York American Inc (1930) 228 App Div 277. A newspaper published a photograph of a particularly repulsive gorilla. Next to it appeared a photograph of the plaintiff above the caption: 'Stanislaus Zbyszko, the Wrestler, Not Fundamentally Different from the Gorilla in Physique.' The statement of claim alleged that this had caused the plaintiff to be shunned and avoided by his wife (who presumably had not noticed her husband's physique until it was pointed out to her by the newspaper), his relatives, neighbours, friends and business associates, and had injured him in his professional calling. The Appellate Division of the New York Supreme Court held that the caption was capable of being defamatory. The case was presumably cited to us as persuasive authority. I find it singularly unpersuasive except as a demonstration of the lengths of absurdity to which an enthusiastic New York lawyer will go in pleading his case.

The line between mockery and defamation may sometimes be difficult to draw. When it is, it should be left to the jury to draw it. Despite the respect which is due to the opinion of Neill LJ, whose experience in this field is unrivalled, I am not persuaded that the present case could properly be put on the wrong side of the line. A decision that it is an actionable wrong to describe a man as 'hideously ugly' would be an unwarranted restriction on free speech. And if a bald statement to this effect would not be capable of being defamatory, I do not see how a humorously exaggerated observation to the like effect could be. People must be allowed to poke fun at one another without fear of litigation. It is one thing to ridicule a man; it is another to expose him to ridicule. Miss Burchill made a cheap joke at Mr Berkoff's expense; she may thereby have demeaned herself, but I do not believe that she defamed Mr Berkoff.

If I have appeared to treat Mr Berkoff's claim with unjudicial levity it is because I find it impossible to take it seriously. Despite the views of my brethren, who are both far more experienced than I am, I remain of the opinion that the proceedings are as frivolous as Miss Burchill's article. The time of the court ought not to be taken up with either of them. I would allow the appeal and dismiss the action.

Phillips LJ: In almost every case in the books, words which have been held to be defamatory have been words which have denigrated the character or personality of the plaintiff, not the corporeal envelope housing that personality. The law of defamation protects reputation, and reputation is not generally dependent upon physical appearance. Exceptionally there has been a handful of cases where words have been held defamatory, notwithstanding that they do not attack character or personality.

In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 at 453 as Hunt J observed:

'At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him . . . I say that this is "in general" the position, as the common law also recognizes as defamatory an imputation which, although not disparaging, tends to make other persons "shun or avoid" the plaintiff, for example, by attributing to him that he is insane: Morgan v Lingen ((1863) 8 LT 800); or by attributing to her that she has been raped . . . as well as an imputation that displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part . . .'

'Shun or avoid'

It is not easy to find the touchstone by which to judge whether words are defamatory which tend to make other persons shun or avoid the plaintiff, but it is axiomatic that the words must relate to an attribute of the plaintiff in respect of which hearsay alone is enough to provoke this reaction. That was once true of a statement that a woman had been raped and would still be true of a statement that a person has a serious infectious or contagious disease, or is physically unwholesome or is mentally deranged. There is precedent for holding all such statements defamatory. There is, however, with one possible exception, no precedent for holding it defamatory to describe a person as ugly. In my judgment, such a statement differs in principle from those statements about a person's physical condition which have been held to be defamatory. Those statements have, in every case, been allegations of fact -- illness, madness, filthiness or defilement. Hearsay factual statements about a person's physical condition can clearly be capable of causing those who hear or read them to avoid the subject of them. In contrast, a statement that a person is ugly, or hideously ugly, is a statement of subjective appreciation of that individual's features. To a degree both beauty and ugliness are in the eye of the beholder. It is, perhaps, just possible to think of a right minded person shunning one of his fellow men because of a subjective distaste for his features. What I find impossible to accept is that a right minded person would shun another merely because a third party had expressed distaste for that other person's features.

It is perhaps for this reason that statements disparaging, however strongly, a person's features -- and many such statements must have been published -- have never been the subject of a successful claim for defamation.

My conclusion is that a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff.

Ridicule

The class of cases where it has been held defamatory, or potentially defamatory, to damage a plaintiff's reputation by exposing him to ridicule is too elusive to encapsulate in any definition. No case demonstrates this better than Dunlop Rubber Co Ltd v Dunlop [1921] 1 AC 367, [1920] All ER Rep 745, the facts of which have been outlined by Neill LJ. The preliminary point which is the subject of this appeal does not require us to decide whether the publications complained of are capable of constituting defamation of the plaintiff. The question which we are asked to answer is whether 'the meaning pleaded in para 6 of the statement of claim is capable of being defamatory'. The defendants' skeleton argument opened with the following proposition:

'The question of law for decision is whether a statement that an individual is ugly is capable of being defamatory. If this statement is defamatory in one case, it must be in all cases (in the absence of any distinguishing features of a particular case), so that there is no distinction to be drawn between the technical issue of law, whether it is capable of being defamatory, and the technical issue of fact, whether it is defamatory.'

I cannot accept this proposition. Where the issue is whether words have damaged a plaintiff's reputation by exposing him to ridicule, that question cannot be answered simply by considering whether the natural and ordinary meaning of the words used is defamatory per se. The question has to be considered in the light of the actual words used and the circumstance in which they are used. There are many ways of indicating that a person is hideously ugly, ranging from a simple statement of opinion to that effect, which I feel could never be defamatory, to words plainly intended to convey that message by way of ridicule. The words used in this case fall into the latter category. Whether they have exposed the plaintiff to ridicule to the extent that his reputation has been damaged must be answered by the jury. The preliminary point raised by the defendants cannot be answered in the affirmative and this appeal should be dismissed.

Disposition:
Appeal dismissed.

Tolley v J S Fry

2007-01-31T04:08:00.000+08:00

Tolley v J S Fry and Sons, Limited
[1931] AC 333; (1931) 1 All ER Rep 131
House of Lords ©(1931)

Viscount Hailsham, Viscount Dunedin, Lord Buckmaster, Lord Blanesburgh, and Lord Tomlin.

Defamation - Libel - Caricature of Amateur Golfer used as Advertisement of Goods - Whether reasonably Capable of defamatory Meaning.

The defendants, a firm of chocolate manufacturers, issued, as an advertisement of their goods, a caricature of the plaintiff, a prominent amateur golfer, depicting him as playing golf, with a packet of their chocolate protruding from his pocket, and a caddy was represented with him, who also had a packet of chocolate, the excellence of which he likened to the excellence of the plaintiff's drive. The advertisement was published without the knowledge or consent of the plaintiff, who thereupon brought an action claiming damages, alleging that it constituted a libel. By his statement of claim he alleged that "the defendants thereby meant, and were understood to mean, that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendants' chocolate; that he had done so for gain and reward; that he had prostituted his reputation as an amateur golf player for advertising purposes; that he was seeking notoriety and gain by the means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer."

At the trial evidence was given by golfers to the effect that if an amateur golfer lent himself to a scheme for advertising, people might think he was not maintaining his amateur status, and that he might be called upon to resign his membership of any reputable club. It appeared from correspondence passing between the defendants and their advertising agents that the question of the possible effect on the amateur status of the plaintiff and others similarly caricatured had been brought to the attention of the defendants.

Acton J ruled that the advertisement was capable of a defamatory meaning, and left the case to the jury, who found for the plaintiff, assessing the damages at 1000l.

Upon an appeal by the defendants, the Court of Appeal held, first, that the judge ought to have withdrawn the case from the jury; and, secondly, that the damages were excessive, and judgment was entered for the defendants.

The plaintiff appealed on the first point only:-

Held (by Viscount Hailsham, Viscount Dunedin, Lord Buckmaster and Lord Tomlin; Lord Blanesburgh dissenting) that in the circumstances in which the publication took place, as explained by the evidence, the caricature was capable of bearing the meaning alleged in the innuendo, and that there ought to be a new trial limited to the assessment of damages.

Decision of the Court of Appeal [1930] 1 KB 467 reversed.

APPEAL from an order of the Court of Appeal ([1930] 1 KB 467) setting aside a verdict and judgment in an action for libel tried before Acton J and a common jury, who returned a verdict in favour of the plaintiff and awarded him 1000l. damages.

The facts are stated in the report of the case before the Court of Appeal and in the opinion of Viscount Hailsham, and are summarized in the headnote.

The Court of Appeal by a majority (Greer and Slesser LJJ; Scrutton LJ dissenting) held that the trial judge ought to have withdrawn the case from the jury on the ground that the document complained of as a libel was not reasonably capable of a defamatory meaning and ordered judgment to be entered for the defendants. All the Lords Justices were further of opinion that in any event there should be a new trial on the ground that the damages were excessive.

The plaintiff appealed on the first point only.

1930 Oct 30, 31. Rayner Goddard KC (with him H M Giveen and Lawson Campbell) for the appellant. The substantial question is whether the trial judge was right in holding that the publication complained of was capable of bearing a defamatory meaning. The majority of the Court of Appeal held that, in the absence of evidence of special facts known to those to whom the advertisement was published causing them to attach to it the meaning alleged in the innuendo - namely, that the plaintiff had consented, either with or without reward, to being represented as assisting to advertise Fry's chocolate - the publication was incapable of bearing any defamatory meaning, and that the correspondence between the respondents and their advertising agents fell short of being evidence of facts which would entitle a special defamatory meaning to be attributed to words otherwise innocent. The fact that the caricature was published by a firm of such eminence as the respondents has an important bearing on this question, because no one would suppose that any respectable firm would have made use of the plaintiff's name to advertise their goods without his permission. If evidence of extrinsic facts is required, the correspondence between the respondents and their advertising agents, when the question of caricaturing certain well known amateur lawn tennis players was being mooted clearly shows that the respondents had present to their minds the nature of the appellant's objection. In the light of that correspondence there was ample evidence to justify the trial judge in ruling that the publication complained of was capable of being construed by reasonable men as imperilling the appellant's reputation as an amateur in the golfing world by suggesting that he had allowed his name to be used to advertise the respondents' goods. The question is not whether the publication is susceptible of an innocent interpretation, but whether no libellous construction can reasonably be put upon it; for if such a construction can reasonably be put upon it, it is for the jury to say whether or not that is the true interpretation of it, and that question should not be withheld from them: Hart v Wall ((1877) 2 CPD 146, 149, 150.); Cassidy v Daily Mirror Newspapers, Ld ([1929] 2 KB 331, 339, 354, 355.) Capital and Counties Bank v Henty & Sons ((1882) 7 App Cas 741, 744, 745, 748) is distinguishable, because the circular complained of as a libel was not issued to the public generally but to the defendants' customers and tenants. Dockrell v Dougall ((1899) 80 LT 556.), where a doctor's name had been used without his authority to puff the sale of a medicine, is really an authority in the appellant's favour, because in that case the trial judge left the question whether the matter complained of was libellous to the jury, though the jury answered that question in the negative. In the Court of Appeal the only question at issue was whether the plaintiff was entitled to an injunction to restrain the unauthorized use of his name without more.

Norman Birkett KC (with him Walter Monckton KC) for the respondents. As a document the document complained of was admittedly not libellous, and it was not capable of a defamatory meaning in the absence of evidence of extrinsic facts known to persons to whom the document was published, causing those persons to attach to it the meaning alleged in the innuendo. The evidence of the distinguished golfers called on behalf of the appellant was given on the assumption that the meaning for which the appellant contended was the true meaning, and was directed to the question of damages only, and the correspondence which had been put in contained no evidence of any fact which would entitle a jury to attribute a special defamatory meaning to words otherwise innocent. It contained nothing amounting to evidence of any special facts which would justify an inference in the mind of the reader of the advertisement either that the appellant's consent to the advertisement had been obtained or that he had been paid for it. In the absence of such evidence the case ought to have been withdrawn from the jury. The appellant here was asking the jury to infer that words innocent in themselves bore some sinister meaning without giving any evidence of extrinsic facts from which that inference could reasonably be drawn. This case should be determined on the principles laid down by Lord Selborne in Henty's case.

Rayner Goddard KC in reply. The important point involved in this appeal is: How far a judge is entitled to rely on his own knowledge. A judge must have regard to ordinary matters of common knowledge.

The House took time for consideration.

1931 March 23. VISCOUNT HAILSHAM. My Lords, the plaintiff in this case is a well known amateur golfer. The defendants are manufacturers of chocolate in various forms.

In the month of June, 1928, the defendants published in the Daily Sketch and Daily Mail, newspapers enjoying a large circulation in London and the provinces, a caricature of the plaintiff which represented him in golfing costume having just completed a drive, with a packet of the defendants' chocolate protruding from his pocket, in the company of a caddie, who is holding up packets of the defendants' chocolate; below the caricature was a limerick in the following terms:-

"The caddie to Tolley said, Oh, Sir,
Good shot, Sir! That ball, see it go, Sir,
My word how it flies,
Like a cartet of Frys,
They're handy, they're good, and priced low, Sir."

The caricature and the limerick were surrounded with descriptions of the merits of the defendants' chocolates, and the whole was plainly an advertisement of the defendants' goods.

The plaintiff thereupon brought this action for damages for libel. He did not complain of the caricature or the words as being defamatory in themselves; but the innuendo alleged that the "defendants meant, and were understood to mean, that the plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the defendants' chocolate; that he had done so for gain and reward; that he had prostituted his reputation as an amateur golf player for advertising purposes, that he was seeking notoriety and gain by the means aforesaid; and that he had been guilty of conduct unworthy of his status as an amateur golfer."

At the conclusion of the plaintiff's case the defendants submitted that there was no case to go to the jury; the judge overruled this contention and the jury found a verdict for the plaintiff for 1000l damages. From this decision the defendants appealed, asking for a new trial on the grounds that the damages were excessive, and further asking for judgment on the ground that the judge ought to have ruled that there was no case to go to the jury. The Court of Appeal came to the conclusion that the damages were excessive, and that there ought in any event to be a new trial on that ground; but the majority of the Court further held that there was no case to leave to the jury, and accordingly directed that judgment should be entered for the defendants. From this latter decision the present appeal is brought to your Lordships' House.

My Lords, from the foregoing narrative it is plain that in order to succeed the plaintiff must satisfy the jury that the publication complained of was capable of some, at least, of the meanings attributed to it in the innuendo, and that those meanings were defamatory.

The oral evidence adduced by the plaintiff, apart from his own testimony, was that of a Mr. Storey, an eminent amateur golfer, and Mr. Hobson, a secretary of two well known golf clubs. Mr. Storey said: "If an amateur golfer lent himself to a scheme for advertising, a great many people would think he was not maintaining his amateur status. It would damage his reputation as an amateur golfer." Mr. Hobson said: "If an amateur lent himself, as a golfer, to the advertisement of people's goods, I think he would be called on to resign the membership of any reputable club." No evidence was called to contradict this testimony; and it seems to me that if the jury accepted that evidence, they were bound to reach the conclusion that, if the publication conveyed the meaning that the plaintiff had lent himself to the defendants' advertising scheme, it was defamatory. There remains, however, the question whether the publication was capable of bearing that meaning. If it was capable of such a meaning, then it seems to me that the judge was bound to leave the case to the jury. The case is unusual in that the defamatory innuendo does not depend upon the words used of the plaintiff, but solely upon the circumstances in which the publication takes place. The argument for the defendants was that there was no evidence called to prove that well known persons were in the habit of allowing their names to be used for advertising purposes, and that in the absence of such evidence a jury could not be allowed to reach the conclusion that the publication impliedly represented that the plaintiff had given such permission.

My Lords, I gravely doubt whether any such evidence was necessary. The question here does not depend upon a state of facts known only to some special class of the community, but upon the inference which would be drawn by the ordinary man or woman from the facts of the publication. It is always difficult to determine with precision the amount of judicial knowledge which is permissible to a judge or jury; but I am not satisfied that it would not be open to a jury, acting on their own knowledge as ordinary citizens, to assume that no reputable firm would have the effrontery and bad taste to take the name and reputation of a well known man for an advertisement commending their goods without first obtaining his consent. But if evidence was necessary, I think it is to be found in the correspondence between the defendants and their advertising agency, which was put in at the trial. No objection was taken either in the Courts below or at the Bar of your Lordships' House to the admissibility of this correspondence as a correct statement of the opinions of the writers. From this correspondence it appears that about six months before the date of the publication complained of the defendants had been considering the possibility of using the names of a number of well known men and women in various walks of life to commend their goods and advertise their merits. Apparently they had, from a very early date, been conscious that some of the persons with whom they were proposing to take this liberty would be likely to object, and counsel's opinion was taken as to whether each individual caricature could be regarded as libellous. The defendants expressed themselves as unwilling to allow their agents to ask the consent of the persons whose names they were proposing to use because, as they said, they felt that this was "rather bad form." Why it should be regarded as bad form to ask the consent of any individual to the use of his name in this manner, and yet unobjectionable to use his name without his consent, I am unable to understand. However, from the correspondence it appears that a number of the proposed caricatures were ruled out as being libellous, but that the caricature of the plaintiff was passed by counsel as not being in itself defamatory.

Whilst this correspondence was proceeding, there was a suggestion that Mlle. Suzanne Lenglen's caricature should be used in the course of the campaign. Mlle. Suzanne Lenglen is a well known professional lawn tennis player. Early in June, 1928, the defendants suggested that Mlle. Suzanne Lenglen should be omitted, and that either Miss Helen Wills or Miss Betty Nuthall should be substituted. Miss Wills and Miss Nuthall are well known amateur lawn tennis players. To this suggestion the defendants' advertising agents replied on June 4 in the following terms: "You return the Suzanne Lenglen lay-out with the suggestion that we should feature either Helen Wills or Betty Nuthall instead. We feel that there are several things which make this undesirable. Firstly, both Betty Nuthall and Helen Wills are amateurs, and in tennis circles even more than in golf circles the amateur status must be very carefully guarded, hence if Cyril Tolley has any quarrel with us, it is more than likely that both Helen Wills and Betty Nuthall would be upset at our caricaturing them for advertising purposes."

It seems to me that this letter is a plain intimation by the defendants' own advertising agents that the natural result of using the names of these two ladies for the purpose of the defendants' advertising campaign would be to impugn their amateur status, and that for this reason it would be undesirable to use their names, although it would be safe to use that of Mlle. Lenglen, who is a professional. This can only be on the ground that the inference which would naturally be drawn from the appearance of such an advertisement would be that the persons whose names were used had consented to their use and had consented on such terms as were inconsistent with their position as amateurs.

I think the jury were entitled to take this letter into account in determining what was the natural inference to be drawn from the publication complained of, and that there is to be found in this letter evidence entitling the jury to hold that the publication of the plaintiff's name as part of the defendants' advertising campaign did imply to the ordinary reader that the plaintiff had lent himself to the defendants' advertising scheme. If so, there was a case to go to the jury; both sides are agreed that the summing up was not open to criticism, and the finding in favour of the plaintiff ought not, therefore, to be disturbed.

As to the damages, there has been no appeal from the decision of the Court of Appeal that these were excessive, and that a new trial is necessary. Whether or not the new trial should be limited to the question of damages, or whether it should extend to a retrial of the whole case, is a matter of discretion. I cannot see in the facts of this case any ground for saying that the amount of the damages awarded is so excessive as to warrant the inference that the jury took a biassed or mistaken view of the whole case. The imputation against the plaintiff was a most offensive one; it was given the widest possible publicity; when the defendants were given an opportunity to apologize and to contradict the imputation that the plaintiff had consented to the use of his name, they refused to avail themselves of it; and I think that the case is one in which a jury might properly give very substantial damages. I accept the decision that 1000l. is too much, but unless your Lordships are prepared to hold that in every case in which excessive damages are given there must be a retrial of the whole case, I cannot see in the present case any sufficient ground for making such an order. In my opinion the new trial should be limited to the assessment of damages.

With regard to costs, the plaintiff must have the costs of the trial; in the Court of Appeal the defendants succeeded in their motion for a new trial, and in the result failed in their motion for judgment: I think each party should bear his own costs of that appeal. The plaintiff has succeeded in his appeal to your Lordships' House, and the defendants must pay the costs.

I move, your Lordships, accordingly.

VISCOUNT DUNEDIN. My Lords, the sole question raised by this appeal is whether the case ought to have been withdrawn from the jury by the judge, and judgment entered for the defendants.

It has been stated again and again and is not in dispute that the question for the judge is whether the writing or publication complained of is capable of a libellous meaning. It is for the jury, if the judge so rules, to say whether it has that meaning.

The most authoritative pronouncement on actions of this sort, because it is a judgment of this House, is to be found in the case of Capital and Counties Bank v Henty. Both parties in this case have appealed to it as an authority in their favour. My Lords, I think the ruling canon in that case is to be found in the judgment of Lord Selborne LC. That was a case where as here the mere words used were not libellous. But Lord Selborne then proceeded to inquire what were the circumstances under which the document was published. In that case he held the circumstances did not and could not lead to any libellous imputation. The circular was directed to Henty's customers alone, and there were quite innocent reasons which would justify the circular. But he pointedly said that if the circumstances had been otherwise, if the circular had been placarded up or published to the world at large, the effect might have been quite otherwise.

Now applying this method of reasoning to the present case I find that the caricature of the plaintiff, innocent itself as a caricature, is so to speak imbedded in an advertisement. It is held out as part of an advertisement, so that its presence there gives rise to speculation as to how it got there, or in other words provokes in the mind of the public an inference as to how and why the plaintiff's picture, caricatured as it was, became associated with a commercial advertisement. The inference that is suggested is that his consent was given either gratuitously or for a consideration to its appearance. Then it is said, and evidence on that point was given, and not cross-examined to, that if that were so the status of the plaintiff as an amateur golfer would be called in question. It seems to me that all this is within the province of a jury to determine. The idea of the inference in the circumstances is not so extravagant as to compel a judge to say it was so beside the mark that no jury ought to be allowed to consider it.

My Lords, I come to this conclusion on a consideration of the advertisement alone, explained with the evidence of the golf players and the golf secretary. There are here two separate propositions: (1.) Would the caricature associated with the advertisement admit of a reasonable inference that the plaintiff had assented to be so depicted? That depends on the view taken of the picture, of its surroundings, and of its use. (2.) If that inference were drawn would it be deleterious to the plaintiff's position as an amateur golfer, and to do him harm? That depends on the evidence of the golfers. A great deal of argument was directed to the terms of the letter of June 4, which has been quoted by his Lordship on the Woolsack. I do not consider that to be material to the question before us. It may well have influenced the jury in coming to the verdict they did, for to my mind it shows clearly that the general proposition that amateur status might be called in question by association of an amateur with an advertisement was well before the eyes of the defendants and their advisers. But we are not concerned at present with the justice of the verdict, only with the question of whether there was a case for the jury to consider.
I agree with the motion proposed.

LORD BUCKMASTER (read by LORD THANKERTON). My Lords, if the advertisement the subject of the alleged libel were issued with the assent of the appellant the evidence of Mr. Storey and Mr. Hobson shows that such conduct would seriously injure his position in golf clubs and as an amateur golfer. This evidence was not made the subject of challenge by cross-examination nor of dispute by rival evidence, and indeed is in agreement with common experience.

The whole question therefore is whether the advertisement itself is capable of the inference that such assent either voluntary or for reward had been obtained before its publication.

Upon the face of it there is no statement to that effect, and evidence to show that such was the reasonable inference was I think rightly rejected, for if admitted on one side evidence to contradict it must equally have been admitted on the other. The question therefore is whether the judge was bound to say that the publication was incapable of this meaning. I do not think that he was. All the circumstances of its issue must be considered, and the first is that the picture is not a mere caricature, it is an advertisement; and it seems to me the question of whether a well known and respectable trader would be assumed to have the effrontery to use a man's portrait and his reputation to advertise goods without his assent is exactly the class of question on which the opinion of a jury might well be invoked. If one man calls another a thief without more it might be mere vulgar abuse and not actionable, but if there are circumstances from which it might properly be inferred that, goods having been stolen, the man of whom the words were spoken was pointed to as the thief, the words at once become actionable, and it would be open to the jury to consider whether in the circumstances that was their true meaning.

In this case there is also some further help to be obtained from letters that passed between the defendants and the advertising agents. The letter referred to by Scrutton LJ of June 4, 1928, is certainly very significant. There had been a suggestion made that Miss Helen Wills or Miss Betty Nuthall should be substituted for an advertisement of which Miss Lenglen was the principal figure. The agency points out that this is very undersirable for the following reasons: "Firstly, both Betty Nuthall and Helen Wills are amateurs and in tennis circles even more than in golf circles the amateur status must be very carefully guarded, hence if Cyril Tolley has any quarrel with us it is more likely that both Helen Wills and Betty Nuthall would be upset at our caricaturing them for advertising purposes." It is impossible to read this letter without realizing that the advertising agency were well aware that such advertisement might affect the amateur status of people both in golf and in tennis circles, and it is obvious that this can only happen if the advertisement suggested that the persons caricatured had assented to its publication. It is also worthy of notice that in the letter of the plaintiff's solicitors of March 14, 1929, after the proceedings had been started, an offer was made in the following terms: "That if your clients will publish, in the same newspapers as the advertisement complained of appeared, a statement that such advertisement was inserted without Mr. Tolley's knowledge or assent, and that he, Mr. Tolley, received no payment directly or indirectly for the use of his name, our client will then be prepared to agree to an order staying proceedings, the defendants paying the taxed costs up to date."

To which the solicitors for the respondents replied offering a limited publication of a statement to the effect that the plaintiff had received no remuneration and adding that no one could think that remuneration had been paid. But they made no reference whatever to the suggestion that they should say the advertisement was without Mr. Tolley's knowledge or assent. The plaintiff's solicitors again wrote on May 14, and referred only to the question of remuneration, but their first letter was explicit, and the refusal to accept the statement lent strong colour to the suggestion that the publication in itself suggested assent, and that the defendants were not particularly willing to let the world know that such assent had not been obtained. The evidence to which I have referred does not depend upon the receipt of money, but on the fact that an amateur had lent himself to the advertisement of other people's goods. I think, therefore, there was sufficient for the jury to consider, and if that be so, their verdict, excepting as to amount, is unassailable. Upon this latter point the Court of Appeal have held that the damages are so unreasonable that on this ground alone a new trial is justified. This conclusion has not been made the subject of appeal, and upon that head, therefore, the new trial must be held, though I do not think it right that it should be assumed that the damages ought to be nominal or trivial. Substantial wrong has been done to the plaintiff and not one which is technical and insignificant.

LORD BLANESBURGH (read by LORD RUSSELL OF KILLOWEN). My Lords, in this case, with no sympathy whatever for the respondents in the predicament in which they have become involved, I agree with Greer and Slesser LJJ, The appellant, in my judgment, failed at the trial to bring home to the respondents any actionable wrong. He made no case against them fit for the consideration of the jury. At the close of the evidence it had become apparent, as it seems to me, that the only reputation blunted by the publication of this caricature was that of the respondents responsible for it.

The appellant in his evidence stated that he did not find anything offensive in the picture. Presumably that was his impression all along. It surprises me, but it suggests a sufficient explanation for these proceedings. Just because the appellant deemed the caricature inoffensive, so also might he suppose that the golfing world when they saw it would be tempted to conclude that he had consented to it, if no more. Hence this action.

The respondents' advisers must have been strongly tempted to challenge at the trial this charitable view of their clients' work. Challenge was so easy. But of course there were difficulties in their way and the forensic temptation was resisted. They did not contest the appellant's view of their clients' advertisement. But nevertheless that view was, I am convinced, profoundly mistaken. Scrutton LJ's description of this thing is surely not a whit too severe. The caricature is a piece of offensive vulgarity - so vulgar indeed - and this is to my mind the fatal obstacle to the appellant's success in these proceedings - that it is almost beyond reason that any one knowing anything of the appellant, as he and his record were disclosed at the trial, could for a moment have supposed or even suspected that he had had anything whatever to do with its publication. That publication was, surely, only another instance of the toll levied on distinction for the delectation of vulgarity.

And if the appellant's dissociation from the publication was thus apparently complete, and no witness was called to contest that view or to affirm the contrary, then the appellant's case as presented by him is at an end. For it is admitted that the caricature, vulgar though it be, is not in itself actionable. Had its subject been a distinguished statesman it seems to be agreed that it would have remained innocent. So, I suppose, if a great scientist or a scholar or a captain of industry had been enlisted, in like manner, into the service of chocolate. But it is, so it is suggested, defamatory of the appellant because he is a prominent amateur golfer. Upon him the caricature is a serious libel actionable as such. One naturally asks why. It seems anomalous that for some hidden reason it should be defamatory of a man in that character, while it would have remained legally harmless at the instance of these other persons not less well known and eminent. And the question is searching, because it has met with what I cannot help thinking is a somewhat confused answer. It is defamatory of the appellant, so it is said, because it is a publication calculated to imperil his amateur status. Again one asks why - and the answer is because it imports that he consented to its publication or was paid to allow it - and expert evidence is called to show that if such had been the fact he would have forfeited his amateur position and might have been required to resign from the golf clubs to which he belongs. The answer seems inconclusive, if not irrelevant. The fact that the consequences to an amateur golfer would have been so immediate and serious seems to supply a convincing reason why consent to such a publication should of all men not be imputed to him. And if the expert evidence was called for the purpose of quantifying damage, how irrelevant it was to the case then being presented by the appellant. Why, he actually appeared before the jury as the amateur golf champion in the year succeeding the publication of the caricature. And, further, is it not obvious that no action in relation to his amateur status could have been taken against the appellant before his conduct in relation to this publication had been challenged by some responsible authority? That it never was so challenged I assume. There was no reference at the trial to anything of the kind. But if it had been and if in answer he had declared, as I doubt not he would in terms appropriately indignant have declared, that not only had he never consented or been asked to consent to the publication, but that on the contrary he strongly resented the liberties taken with his name and personality, then there could have been no end to the challenge except an apology for having made it. As it seems to me, therefore, on the only case presented by the appellant, the caricature being per se not actionable, there was nothing left for the jury to consider.

But, my Lords, when I find that the jury awarded the appellant 1000l. damages, when there was, so far as I can see, no evidence, on the case presented, properly to instruct any damages at all, the conclusion is inevitable that if the jury were not merely venting their displeasure upon the respondents they were considering and adjudicating upon a very different case, not suggested even in the plaintiff's evidence and in no way proved. And that case was, as I followed learned counsel, really implicit in his argument at your Lordships' Bar. It may perhaps thus be stated.

There is a widespread belief, well or ill founded, that amongst some gentlemen cricketers, amateur lawn tennis players, and other amateur athletes, including golfers, a practice obtains to utilize and exploit their amateur status for reward by, for example, assisting advertisement campaigns or pushing by the use of their name and personality the sale of proprietary articles, and that the respondents' caricature was such as falsely to represent to the public that the appellant was one of these athletes whose amateur status is believed to be a mere masquerade.

Now, I cannot doubt that such an allegation, if made and proved, would have amounted to a serious imputation on the honour of the appellant, and, not being justified, might well have instructed exemplary damages.

But there is nothing in the caricature itself to suggest all that or any of it. In the old days an averment that the libel was published to people who knew of that belief would have been essential. The Legislature has rendered it no longer necessary to set out on the record the facts and the colloquium necessary to support an innuendo: they are now only matter of proof at the trial; but the principle remains: see per Lord Blackburn, River Wear Commissioners v Adamson ((1877) 2 App Cas 743, 763); and see also Capital and Counties Bank v Henty. (7 App Cas 741, 771, 778) My Lords, there was no evidence at all adduced on this subject. None is supplied, as I read it, by the correspondence to which reference has been made. The. appellant himself was the obvious witness on such a topic, and, while one may respect his reticence upon a matter so delicate, the gratification of a quite natural reserve is not to be purchased at the respondents' expense. Had evidence on the subject been tendered, the limits of this alleged belief might through cross-examination have been set. Did it get as far as a vulgar caricature like this; did it go beyond a letter or a photograph, signed perhaps, and in point of attractiveness not more truthful than was necessary? In this matter were amateur golfers ever even suspect? It would have been interesting to ascertain the limits of the alleged belief.

But neither the belief nor its limits were explored or made the subject-matter of evidence; and I have, I think, said enough to show that neither could have been within the judicial knowledge of the judge or within the worldly experience of a Middlesex common jury.

If therefore this was the real case on which the jury adjudicated, such a case was entirely beyond their competence. There was no evidence upon it fit for submission to them for consideration or at all, and I reach from this approach also the conclusion that the respondents were entitled to judgment.
I would dismiss the appeal.

LORD TOMLIN. My Lords, the only question in this appeal is whether the learned trial judge was wrong in allowing the case to go to the jury.

The law is not in doubt. It is for the judge to determine whether the writing or picture complained of is capable of a defamatory meaning, and in this connection it is to be observed that that which is prima facie innocent may become capable of a defamatory meaning by reason of the circumstances surrounding its publication.

If the judge determines that the writing or picture is capable of a defamatory meaning it is for the jury to say whether it is in fact defamatory.

Here the thing complained of is a drawing in the nature of a caricature of the appellant, a well-known amateur golfer, with some added letterpress and other features establishing the identity of the person represented.

Regarded in vacuo it is admittedly innocent, but the question remains whether it is capable of a defamatory meaning by reason of the circumstances surrounding its publication.

It has been published by the respondents, a commercial company, as part of an advertisement used for promoting the sale of their goods.

Having regard to the evidence (apart altogether from the correspondence between the respondents and their advertising agents) it is not in my opinion possible to say that the matter complained of in the circumstances of this case, and in the environment in which it appeared, might not have given rise in reasonable minds to the inference that the appellant had assented to this publication. Further there was evidence that such an inference might be harmful to the appellant in view of his position as an amateur golfer.

My Lords, upon this view of the matter I think the trial judge was right in not withholding the case from the jury and I agree with the motion proposed.

Order of the Court of Appeal reversed; and further ordered that judgment be entered for the appellant for damages to be assessed, and that a new trial be had between the parties for the assessment of such damages The respondents to pay the costs of the trial before Acton J. and also the costs of the appeal to this House. Each party to bear and pay their own costs in the Court of Appeal. Cause remitted back to the King's Bench Division to do therein as shall be just and consistent with this judgment.

Lords' Journals, March 23, 1931.

Solicitors for the appellant: Cohen & Cohen.
Solicitors for the respondents: Pritchard, Englefield, & Co, for Osborne, Ward, Vassall, Abbot & Co, Bristol.

Hulton Co v Jones

2007-01-31T04:07:00.000+08:00

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.

Newstead v London Express Newspaper

2007-01-31T04:06:00.000+08:00

Newstead v London Express Newspaper, Limited
[1940] 1 KB 377
Court of Appeal

Sir Wilfrid Greene MR and Mackinnon and Du Parcq LJJ.

Defamation - Libel - No intention to defame plaintiff - Words true of another existing person - Questions left to jury - Whether words could be reasonably understood to refer to plaintiff - Disagreement of jury - Plaintiff awarded one farthing damages - Effect of jury's findings.

A newspaper published an account of a trial for bigamy and referred to the prisoner as "Harold Newstead, thirty-year-old Camberwell man." The account was true as regards a Camberwell barman of that name, but was not true as regards the plaintiff, Harold Newstead, aged about thirty, who assisted his father in a hairdressing business at Camberwell Road, Camberwell. The plaintiff brought an action for libel against the proprietors of the newspaper. Five questions were left to the jury, who were unable to agree on the first question: "Would reasonable persons understand the words complained of to refer to the plaintiff?" and they assessed the plaintiff damages at one farthing. No judgment was entered and the parties were left to make up their minds as to the future course of the litigation:-

Held (affirming the decision of Hawke J. [1939] 2 KB 317), (1.) that the evidence would have justified a finding by the jury that reasonable persons would have understood the words complained of to refer to the plaintiff; and (2.) that, assuming the words complained of were capable of a meaning defamatory of the plaintiff, the fact that they were true of another person did not afford a good defence to the defendants.

Per MacKinnon L.J. That as the jury assessed the damages at one farthing and no reasonable jury could be expected to assess them at a higher figure, the Court ought not to permit or direct a further trial of the action.

Cases referred to:
Bruce v Odhams Press, Ld [1936] 1 KB 697.
Capital and Counties Bank v Henty (1882) 7 App Cas 741, 781-2.
Cassidy v Daily Mirror Newspapers [1929] 2 KB 331.
Cooper and Wife v Proprietors of the Oldham Chronicle. Unreported.
D C Thomson Co v McNulty (1927) 71 Sol J 744.
Derry v Peek (1889) 14 App Cas 337.
E Hulton Co v Jones [1910] AC 20, 23.
Hausa (or Hauson) v Globe Newspaper Co (1893) 159 Mass. Rep. 293.
Jones v E. Hulton Co [1909] 2 KB 444; [1910] AC 20.
Lee v Wilson (1934) 51 CLR 276.
Marsh v Isaacs (1876) 45 L J (QB) 505.
Nevill v Fine Art and General Insurance Co [1897] AC 68, 76-7.
Peck v Tribune Co (1909) 214 US 185.
Perryman v Lister (1868) LR 3 Ex 197, 200.
Poliakoff v News Chronicle Ld [1939] 1 All ER 390.
Shaw v London Express Newspaper, Ld (1925) 41 Times LR 475.
Tolley v J S Fry Sons, Ld. [1931] AC 333, 350.
Washington Post v Kennedy (1925) 3 Fed. Rep., 2nd series, 207.
Watt v Watt [1905] AC 115.
Youssoupoff v Metro-Goldwyn-Mayer Pictures, Ld (1934) 50 Times LR 581.

APPEAL from Hawke J. ([1939] 2 KB 317)
Argument on points of law arising out of the findings of a jury in an action for libel.
The plaintiff was one Harold Cecil Newstead, a hairdresser, who assisted his father in business at Camberwell Road, Camberwell.
The defendants were the printers and publishers of the Daily Express newspaper.

The words complained of were published in the Daily Express of March 30, 1938, under the title "Why do people commit bigamy?" and were as follows: "Harold Newstead, 30-year-old Camberwell man, who was jailed for nine months, liked having two wives at once. Married legally for a second time in 1932 - his legal wife is pictured right, above - he unlawfully married nineteen-year-old Doris Skelly (left, above). He said 'I kept them both till the police interfered.'"

The case for the plaintiff was that he was well known in the hairdressing trade in Camberwell and elsewhere as Harold Newstead, and that he was about thirty years of age, and a Camberwell man. He alleged that the words published were understood by a number of people to refer to him, and to mean that he had committed bigamy and been punished therefor.

The defendants admitted publication, but denied that the words complained of were intended or understood to refer to the plaintiff, or that they were defamatory of him. They asserted that the words were published of an existing person of the name and description therein contained, and were intended, and were understood, to refer to that person, who was not the plaintiff. In relation to that other person, they said, the words published were true, and they pleaded justification and fair comment.

The plaintiff, in his reply, submitted that, if the words were intended to refer to some other person, it was the absolute duty of the defendants, or at least their duty, to take reasonable care to give a precise and detailed description of such person, denoting him exclusively, and to ensure that the words published should not be capable of referring to any other person. In breach of such duty they had recklessly struck out words giving the occupation and address of the person convicted.

His Lordship left the following questions to the jury:-
1. Would reasonable persons understand the words complained of to refer to the plaintiff?
2. (a) Was it true to say that the convicted man was "a Camberwell man"?
(b) Was it true to say that the convicted man "liked having two wives at once"?
3. Was the expression "liked having two wives at once" a fair comment on the conduct of the convicted man?
4. In omitting the occupation and address of the convicted man were the defendants
(a) reckless?
(b) negligent?
5. Damages (if any).

The jury returned answers to the last four questions, but were unable to agree on the first question, and they assessed damages at one farthing, and were discharged. The answers of the jury were not read out in Court, but the paper on which they were written was handed down to counsel.

The question what effect should be given to the findings of the jury was adjourned for further consideration. Having heard arguments, his Lordship held (1.) that the principle in Jones v E Hulton Co applied, and the fact that the words complained of were intended to refer to, and were true of an existing person, who was not the plaintiff, did not afford a defence to the action; (2.) that an answer to the question whether reasonable persons would understand the words to refer to the plaintiff was essential to the success of the plaintiff in the action; and (3.) that therefore no judgment would be entered, and the parties must be left to make up their minds as to the future course of the litigation.

The defendants appealed. The appeal was heard on November 2, 3, 6, 7, 1939.

G. O. Slade for the appellants. The appellants' claim that they were entitled to a judgment in their favour on the jury's answers to questions two and three. Question one did not matter, question four was immaterial. The words complained of were not reasonably capable of applying to the respondent, and the jury ought to have so directed.

Farwell LJ in Jones v E Hulton Co deals with recklessness and refers to Derry v Peek.

[SIR WILFRID GREENE M.R. Recklessness must depend upon the facts in each case.]

The averment that the libel was written of and concerning the plaintiff is a material averment, and unless sensible people reading the libel could see that it referred to the plaintiff it would not be a libel - see Lord Alverstone CJ in Jones v E Hulton Co. A libel consists in using language which others knowing the circumstances would reasonably think to be defamatory of the plaintiff, and he must be injured by it; Lord Loreburn LC in E Hulton Co v Jones. In D C Thomson Co v McNulty Lord Dunedin followed E Hulton Co v Jones and in Shaw v London Express Newspaper, Ld, the case was withdrawn from the jury, because the article in question could not refer to the plaintiff and was therefore not defamatory. Cassidy v Daily Mirror Newspapers was a very different case from the present one. The de facto intention of the writer does not affect the issue. Where words are published which are true of an existing person no action will lie at the suit of another person, even if that person satisfies the jury that reasonable people might think the words apply to him. In the absence of recklessness a person is not liable to pay damages for a publication that is true of one person, even if all the friends of another person think that the cap fits him.

No one can reasonably assume that the plaintiff is meant, unless there is something in the article or the surrounding circumstances that particularly points to the plaintiff, and the plaintiff must plead and prove the circumstances: Bruce v Odhams Press, Ld. There is nothing in the article or the surrounding circumstances in this case that particularly points to the plaintiff.

The question whether something written about a particular person is capable of applying to another particular person is one for the judge and not the jury. When the only things that emerge from the evidence in dealing with a true statement about some one other than the plaintiff are that the plaintiff has the same name, comes from the same district and is about the same age, it is impossible to infer the intention to refer to the plaintiff. The intention to be found is not one of de facto intention but of assumed intention. The matters that arise here are (1.) whether the statement was true of some one other than the plaintiff and of this there is no doubt. (2.) If the statement is true of that person, has the plaintiff shown that a defamatory statement has been published of him and, as already suggested, for this purpose an assumed intention must be shown in the clear evidence of no de facto intention. (3.) Assumed intention is manifested in two ways (a) by the defamatory words themselves, or (b) by the circumstances and manner of publication. An example of (b) is when words are published about A and the publisher must be assumed to know that in view of the outstanding position of B a large number of persons would regard them as applying to B. Recklessness arises when the assumed intention differs from the de facto intention by reason of the conduct of the writer of the libel. It is a species of estoppel by conduct. The only province of the factor for recklessness in cases of this type is when the writer of an alleged libel says he never meant it in his own mind, although it is apparent that everyone must understand otherwise. It is only where in the words used is a true statement about someone else there is something which points particularly to the plaintiff that the time comes to go to the jury. Here there is nothing of the kind. The statement made here was capable of verification by anyone interested and no reasonable person would jump to the conclusion that it referred to his friend the plaintiff. The same sort of question arises as when the question is whether the words used are capable of a defamatory meaning and the question is not what the writer meant, but what meaning the words used might reasonably bear: see Perryman v Lister. Here there was not the necessary foundation to enable the question to be put to the jury of who was the person to whom the published statement might be understood to refer to. It would be different if there was something in the surrounding circumstances to point to the plaintiff, as if a man with the relevant poster had been placed opposite his shop. If the statement in truth referred to an insignificant person and might be taken to refer to a well known person, the learned judge would take that into account in considering whether there was a case to leave to the jury. Here the plaintiff had a second Christian name, was unmarried, and was not of the age mentioned in the statement. It is unreasonable to jump to the conclusion that he was referred to, and the judge ought to have dismissed the action.

The appellants here are entitled to judgment on two grounds (1.) that there was no case to go to the jury and (2.) that judgment could be given on the questions answered by the jury.

[SIR WILFRID GREENE MR. The jury was discharged because they could not agree and therefore there is no verdict.]

The jury disagreed on the first question of whether the alleged libel referred to the plaintiff, but the judge had found that the statement was privileged and the jury found that there was no malice, so that on that finding alone the appellant was entitled to judgment and the absence of an answer to the first question was immaterial. Alternatively the appellant asked for a new trial and in that case asked that the finding of a farthing damage should stand. It is submitted that the Court has power so to direct: see Order XXXIX., rr. 6, 7.

A T Denning KC and R M Wilson for the respondent. The facts here are that in the report of the proceedings for bigamy at the Central Criminal Court, the Harold Newstead the convict was referred to as having the occupation of a barman and his address in Camberwell given. After the report reached the newspaper office the assistant editor wrote the matter up into a story and in doing so omitted the address and referred to the man as a Camberwell barman. At a later stage someone altered that account once more by altering "barman" into "man." It is the omission of these identifying things that have given rise to this action and the defendants' sub-editor agreed that it is important to identify the person referred to as nearly as possible. In other papers the occupation and address were inserted. It is these omissions that have made the words capable of referring to the plaintiff and therefore it is a question for the jury whether the words could reasonably be taken to refer to the plaintiff and the learned judge so held. It is for the papers to make fair and accurate reports and it is only if they do this that the newspaper can claim exemption on the ground of privilege in a case where the report can be taken to apply to a different person. It is a good defence if the defendants can show that the possible mistake arose through no lack of reasonable care and this the defendants cannot do in the present case. Again there is no such thing as legal or assumed intention any more than there is legal fraud. This point of the appellants' argument would lead to a man who published a libel with the intent of injuring A escaping liability where there was another man of the same name of whom it was true.

Next, there is no such thing as absolute truth. It is necessary first to ascertain the meaning of the words used and then see whether they are true and the meaning must be ascertained independently of the writer's intention. The words used here were clearly defamatory and no regard can be paid to the intention in publishing them. They are published at the publisher's peril unless he has some reasonable excuse for doing so. This is made clear by Jones v E Hulton Co. The judge is clearly right here in holding that the words in question were capable of being defamatory of the plaintiff and that being so the case must clearly go to the jury.

[MACKINNON LJ referred to Cooper and Wife v Proprietors of the Oldham Chronicle.]

It is well established by Hulton's case that the Court did not look to the intention with which words were published: see Spencer Bower on the Law of Actionable Defamation (1st ed.), p. 12. In Cassidy's case it was pointed out that if published words were reasonably capable of referring to A the publisher must take the consequences: see Youssoupoff v Metro-Goldwyn-Mayer Pictures, Ld, and Gatley on Libel (2nd ed.), pp. 125, 126. Here the appellants cannot rely on their defence as reasonable excuse. They ought to have known that by omitting the name and occupation of the person they were referring to they made it possible that what they said might be taken to apply to another person: see Pollock on Torts (14th ed.), p. 200. The element of negligence is only material in considering whether there is reasonable excuse for what has been done: see Salmond on Torts (9th ed.), p. 403. American cases dealing with this branch of the law are Hausa (or Hauson) v Globe Newspaper Co; Peck v Tribune Co and Washington Post v Kennedy and an Australian authority is Lee v Wilson. In Washington Post v Kennedy the very point that arises here of omitting a description that would have distinguished that person to whom reference was intended to be made for someone else.

It is not what was the intention of the writer of the article that matters, but what was the tendency of the article: Capital and Counties Bank v Henty. It is now established that what matters is not what the writer of an article means, but what the article means to its readers. An article which is prima facie innocent may became capable of a defamatory meaning by reason of the circumstances surrounding its publication, and it is for the judge to determine whether what is complained of is capable of a defamatory meaning: Lord Tomlin in Tolley v J S Fry Sons, Ld.

When considering whether a publication is reasonably capable of a defamatory meaning the fact that it is true of another person does not matter.

[DU PARCQ L.J. In Fraser on Libel and Slander (7th ed.), pp. 14-15, there is a long list of cases in which judges have differed as to what is reasonably capable of a defamatory meaning.]

It cannot be an excuse that what has been published is true of another person. There is a consensus of opinion that carelessness is no defence to an action for libel.

G. O. Slade replied.

1939. Nov 20. SIR WILFRID GREENE M.R. I have read the judgment about to be delivered by du Parcq L.J. Agreeing as I do with his conclusions, and the reasons which he gives for them, I do not think it necessary to deal at length with the case. But I wish to offer some observations of my own upon one crucial matter, which was much discussed before us.

Great reliance was placed by Mr Slade upon the language used by Farwell L.J. in his judgment in the case of Jones v E Hulton Co. It is not surprising that he should have done so, in view of the fact that when that case reached the House of Lords, two out of the four noble and learned Lords who heard the appeal (Lords Atkinson and Gorell) expressed their "substantial concurrence" with that judgment. At the same time, Lords Atkinson and Gorell expressed their concurrence with the opinion of Lord Loreburn L.C., whose reasoning I find it impossible to reconcile with much of what was said by Farwell L.J. In these circumstances, I am constrained to regard the reasoning of Lord Loreburn L.C. as representing the real ratio decidendi of the majority of the House, and the opinion of the other noble and learned Lord, Lord Shaw, does not differ from it in any important particular. It is to be observed that the opinions of the members of the House were not on that occasion considered opinions: if they had been, the language of Lords Atkinson and Gorell in relation to the judgment of Farwell L.J. would no doubt have been more explicit. I think it right to state my views upon this matter, as the expressions in question have given rise to much doubt and controversy.

There are two passages in the judgment of Farwell L.J. upon which Mr Slade strongly relied. The learned Lord Justice says: "But it is not enough for a plaintiff in libel to shew that the defendant has made a libellous statement, and that the plaintiff's friends and acquaintances understand it to be written of him: he must also shew that the defendant printed and published it of him; for if the defendant can prove that it was written truly of another person the plaintiff would fail." Again, the Lord Justice says: "If the libel was true of another person and honestly aimed at and intended for him, and not for the plaintiff, the latter has no cause of action, although all his friends and acquaintances may fit the cap on him." Now it is important to examine carefully the process of reasoning of which these passages form part. In the first passage Farwell L.J. expresses his agreement with the view which had been expressed by Fletcher Moulton L.J., as to the necessity of the presence of an intention on the part of the defendant to refer to the plaintiff. That view is summarized by Fletcher Moulton L.J. where he says: "It is therefore, to my mind, settled law that a defendant is not guilty of libel unless he wrote and published the defamatory words 'of and concerning the plaintiff' - in other words, unless he intended them to refer to the plaintiff." Farwell L.J. then says that the point of difference between himself and Fletcher Moulton L.J. lies in the meaning of the word "intended" and states (correctly, if I may respectfully say so) that "the inquiry is not what did the defendant mean in his own breast, but what did the words mean having regard to the relevant surrounding circumstances." Later on he says: "So the intention to libel the plaintiff may be proved not only when the defendant knows and intends to injure the individuals, but also when he has made a statement concerning a man by a description by which the plaintiff is recognized by his associates, if the description is made recklessly, careless whether it hold up the plaintiff to contempt and ridicule or not" and "the element of intention, which is as essential to an action of defamation as to an action of deceit, can be proved in the same way in both actions." He had previously referred to the fact that fraud is committed where a representation is made "recklessly, careless whether it be true or false, and although there was no intention to cheat or injure the person to whom the statement was made - Derry v Peek - and yet the fraudulent intent is of the essence of the action." It would be affectation to say that in criticizing the reasoning of so learned a judge I speak with hesitation, since my view upon the matter is clear. It appears to me that the analogy of the action of deceit is not a true analogy. In that action the necessity for the presence of a fraudulent intention is satisfied if it be shown that the defendant made the statement in question recklessly, careless whether it were true or false. But this recklessness and this carelessness have nothing to do with the meaning of the statement - they are relevant only to the question of the fraudulent intent of the person making it. But in applying the analogy to the case of libel, Farwell L.J. applies the test of recklessness to the meaning of the words used, which is quite a different matter. If the words used when read in the light of the relevant circumstances are understood by reasonable persons to refer to the plaintiff, refer to him they do for all relevant purposes. Their meaning cannot be affected by the recklessness or honesty of the writer.

I do not propose to refer to the authorities which establish this proposition, except to quote the words of Lord Loreburn L.C. in E Hulton Co v Jones, where he said: "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." In the case of libel, once it is held that the words are capable of referring to the plaintiff, it is, of course, for the jury to say whether or not they do so refer. Subject to this, the principle is in truth an illustration of the rule that the author of a written document is to be taken as having intended his words to have the meaning which they convey when understood in the light of the relevant surrounding circumstances. In the case of libel, the same words may reasonably convey different meanings to a number of different persons or groups of persons, and so be held to be defamatory of more persons than one.

After giving careful consideration to the matter, I am unable to hold that the fact that defamatory words are true of A, makes it as a matter of law impossible for them to be defamatory of B, which was in substance the main argument on behalf of the appellants. At first sight this looks as though it would lead to great hardship. But the hardships are in practice not so serious as might appear, at any rate in the case of statements which are ex facie defamatory. Persons who make statements of this character may not unreasonably be expected, when describing the person of whom they are made, to identify that person so closely as to make it very unlikely that a judge would hold them to be reasonably capable of referring to someone else, or that a jury would hold that they did so refer. This is particularly so in the case of statements which purport to deal with actual facts. If there is a risk of coincidence it ought, I think, in reason to be borne not by the innocent party to whom the words are held to refer, but by the party who puts them into circulation. In matters of fiction, there is no doubt more room for hardship. Even in the case of matters of fact it is no doubt possible to construct imaginary facts which would lead to hardship. There may also be hardship if words, not on their faces defamatory, are true of A, but are reasonably understood by some as referring to B, and as applied to B are defamatory. But such cases must be rare. The law as I understand it is well settled, and can only be altered by legislation.

The appeal must be dismissed with costs.

MACKINNON L.J. The arguments in this case have ranged over a wide field, and we have been referred to many authorities. I do not propose to examine those many cases, but to state the conclusions as to the law to which I have arrived after examining them.

If A publishes to another person, or persons, words which upon their reasonable meaning refer to B, if those words are defamatory as holding B up to hatred, ridicule, or contempt, and if the words so referring to B cannot be justified as true, A may be liable for damages to B.

Secondly, the reasonable meaning of the words, upon the question whether they refer to B must be tested objectively and not subjectively. The question is what do the words mean as words, not what did A in his own mind mean by them or intend them to mean.

Thirdly, A cannot plead as a defence that he was unaware of B's existence.

Fourthly, A cannot plead as a defence that the words are, in their reasonable meaning, equally capable of referring to C, and that when referring to C they are true.

Fifthly, there has been in some of the cases (notably by Farwell L.J. in Jones v E Hulton Co), reference to negligence or recklessness on the part of A in making the publication. If the words, on their reasonable meaning, do refer to B, I think it is immaterial whether A was either negligent or reckless in not ascertaining the existence of B, or guarding against the applicability to him of the words. If B establishes his claim, the jury in assessing his damages may take into account all the circumstances of the publication. The negligence or recklessness of A may well be among such circumstances. Further or otherwise negligence or recklessness on the part of A is immaterial.

It is hardly necessary to add, sixthly, the rule which is elementary, namely, that it is the primary duty of the judge to decide whether the words complained of are capable of a meaning that is defamatory of B, and only if he answers that question in the affirmative to leave to the jury the questions whether they are in fact defamatory of B, and, if so, what damages he shall be awarded.

In a case in which there is no question that the words are defamatory of him, if they refer to B, and the contest is only whether they do so refer, this preliminary question for the judge must be: "Are these words on their reasonable meaning capable of referring to the plaintiff?" And if he answers that affirmatively I think that, properly, the first question to be left to the jury should be: "Could the words used by the defendant be reasonably interpreted by those to whom they were published as referring to the plaintiff?"

On the first question, not exactly in that form, that was left to them, the jury failed to agree. Counsel for the defendants submitted that there was no evidence fit to go to the jury on which they could properly answer this first question in the affirmative. The judge overruled this contention: he therefore said that the case must be left for trial by another jury if the plaintiff chose to enter it again for trial. The defendants appeal from this ruling, though they also raise other contentions in law, some of which I have previously dealt with adversely to them.

In my opinion the question for us is whether the judge was right in ruling that there was evidence fit to be left to the jury on which they could reasonably answer "Yes" to the question: "Could the words used by the defendants be reasonably interpreted by those to whom they were published as referring to the plaintiff?" In form this may not be precisely the same as the preliminary question for the judge's determination: "Are the words capable of being defamatory of the plaintiff?" But I think the difference is one of form and not of substance. For I think that truly the preliminary question for the judge is: "On the evidence is it possible for a reasonable jury to answer the above question affirmatively?"

My brethren are of opinion that the judge's ruling as to this was correct. I confess that I entertain grave doubt whether it was. That doubt is not sufficient to make me express an actual dissent, especially as I think there is another ground on which this appeal should be allowed. But I should like to indicate the reasons which make me doubt.

In considering the judge's preliminary question whether the words are capable of being defamatory, and ought he therefore to leave to the jury the question whether they are so, what type of mind or intelligence ought the judge to impute to the audience? Not, I think, that they are of the class who accept and act on the wickedest proverb that was ever invented: "There is no smoke without fire." On the other hand, perhaps he should not impute to them the charitable decency of gentlemen. I can only suppose that one must have recourse again to that elusive being "the reasonable man," and assume that the audience consists of "reasonable people."

Secondly, in considering what is the reasonable meaning of words uttered, not merely the actual words, but the circumstances of time and place must be taken into account, and also the constitution of the audience to whom they were addressed.

The audience of a general newspaper is the general public. (Judging from the specimens furnished for our inspection the audience of the defendants' paper must be the more vulgar and unintelligent portion of the general public). Words in such a paper may have a meaning other than they may have in a local paper addressed to a local audience. And words in a letter addressed to a few people, or even to an individual, may have a still more special signification. I would suggest as the two extremes of generality and speciality, (a) a paragraph in The Times: "John Smith of London, was convicted at the Old Bailey of so and so," and (b) a letter to a householder at his address: "I think it right to let you know that your gardener, A. B. is stealing your vegetables and selling them to the local greengrocer." It seems manifest that The Times could not be successfully sued by a John Smith, who was not the convict; and equally manifest that, if the letter was untrue, the gardener could sue the writer.

If a newspaper printed the sentence: "A. L. Smith, a London man, was fined for drunkenness at Bow Street," and a man of that name alleged these words to be defamatory of him, I think the judge ought not to let his case go to the jury. But if, forty years ago, a man exhibited a poster at the gate of Balliol, or outside the Law Courts, bearing the words: "A. L. Smith fined for drunkenness," either of two distinguished people, if they cared to sue, should have had their cases left to the jury. The words published to the audiences - undergraduates of Balliol, or lawyers leaving the Courts - would have a special meaning.

In E Hulton Co v Jones, the nature of the audience may have had some minor importance. The plaintiff was a well known barrister on the North Wales and Chester Circuit, and that is a region not far from Manchester. But the sting of the words in that case arose from his very unusual name. In all probability there was only one "Artemus Jones" in Great Britain, possibly in the world. If the paper had written of the doings at Dieppe of John Jones, I am clear that no one of the many men who struggle through life under the name "John Jones" ought to have had a claim left to the jury. And if the article had said "Jones" simpliciter, neither Mr Artemus Jones, or any other Jones, could have sued.

If the words may have a special significance to the audience, by reason of some local, or other, circumstance, how far is the special knowledge of some members of that audience to be considered in estimating the reasonable meaning of the words to those members? If the audience be a local one, e.g., if the words in this case had been printed in a Camberwell newspaper, the percentage of readers who knew of the existence of the plaintiff might have been much greater than the percentage of readers of the Manchester Guardian - if I may assume, solely for the sake of argument, that that austere journal could ever have printed this trash. In E Hulton Co v Jones every reader (except those who thought the name merely fictitious, or did not think about it at all), would reasonably think the plaintiff was referred to. It was in evidence in that case that the plaintiff was baptized "Thomas Jones," and had only assumed the name Artemus when he came to years of discretion. If the position had been reversed, and he had dropped the name Artemus when a boy, and had sued Hulton, saying "My real name is Artemus. I have not used that praenomen for many years. But I can call one of my schoolfellows, and an aunt, who will say they once knew me as Artemus, and, being disagreeable and suspicious people, will say they thought this story of piccadillos at Dieppe referred to me" - I think he should have been non-suited.

There is implicit also this further consideration. If the special knowledge of a section of the audience consists only of their personal acquaintance with the plaintiff, and if he is a man of good character, he needs all the less any protection from any imputation on that character in their minds, if they are reasonable people. The better his character the more likely are those who know of him (unless they are unreasonably uncharitable) to say: "As usual, when one knows anything of one's own knowledge, a newspaper gets it wrong." Indeed, the smaller the percentage of the specially informed part of the audience, and the higher the character of the plaintiff, the more remote is the possibility of any real damage to him from the suggested defamation.

On the facts of this case - (a) the audience, to whom the words were published, was very widespread and numerous, while the percentage of it with special knowledge, i.e., acquaintance with the plaintiff, was infinitesimal, and (b) the name, Harold Newstead, is a very ordinary one, and may well be owned by more than one person. As the question is whether the few people who knew of the plaintiff would be acting as reasonable people in thinking, without further inquiry, that the words referred to the plaintiff, and at once holding him in ridicule, hatred, or contempt, I confess that, unassisted by the view of my brethren, I should be inclined to answer "No." I should be inclined to think that they could only do so if they were more stupid, and more uncharitable than I hope reasonable people are.

There is, however, another and different ground on which I think this appeal should be allowed. We are encouraged and entitled to assume that any jury consists of twelve reasonable people, though, paradoxically, tradition forbids us to interfere when a jury has assessed damages at a figure that we all think extravagantly excessive. In this case the jury did assess the damages, if the words did defame the plaintiff, at one farthing. It is true that they did not bring in a complete verdict, since they failed to agree on the first question. But they expressed their unanimous opinion as to the amount of damages. I suppose I am still entitled to regard them as twelve reasonable people, even if they failed to agree on a question which has virtually caused disagreement between my brethren and myself. I know, therefore, that twelve reasonable people have assessed the plaintiff's possible damages at one farthing. And, on the facts proved, I cannot conceive that any twelve reasonable people would arrive at a larger figure.

It is said that we are bound to permit, if not to direct, a further trial of this case, and if another jury disagrees, yet another, and so on. That is in order that eventually some jury may answer "No" to the first question, or, answering "Yes" to it, may give the plaintiff the farthing which one jury has already agreed upon, and which I am satisfied any reasonable jury would agree upon.

I do not think we are constrained to adopt this course. For I think we sit here to administer justice, and not to supervise a game of forensic dialectics.

This ground, on which I would allow this appeal, is similar to that which was applied by this Court in the case of Poliakoff v News Chronicle Ld, though with a slight but, as I think, an immaterial extension. For in that case the Court was made aware of the fact that, the only conceivable damages being one farthing, the defendants had paid into Court a sum in excess of that figure.

DU PARCQ L.J. The submissions upon which the appellants rely may be stated shortly as follows: (1.) That the evidence would not have justified a finding by the jury that reasonable persons would have understood the words complained of to refer to the plaintiff. The ground of this submission is that the words were not capable of such a meaning. (2.) That, even assuming that the words were capable of a meaning defamatory of the plaintiff, the fact that they were true of another person affords a good defence to the appellants.
As to (1.), there is a clear distinction between the question which a jury may have to answer, and the preliminary question which is for the Court. The question for the Court is, to adopt the language of Lord Halsbury, whether the words are susceptible of a libellous meaning in this sense, that a reasonable man could construe them unfavourably in such a sense as to, make some imputation upon the person complaining." Nevill v Fine Art and General Insurance Co. If the judge holds the words to be susceptible of a defamatory meaning in that sense, the jury are the constitutional tribunal to decide whether the words in fact have that meaning - whether, that is, the reasonable man whom they may be supposed collectively to typify would (not could) so construe them. The question which the judge must put to himself involves the assumption that the hypothetical reasonable man is capable of forming what the jury (and perhaps the judge also) may think to be an unduly censorious or suspicious view. The judge must be careful not to answer in advance the question which is properly for the jury, and to observe the limitation imposed upon his proper function by the law. At the same time he must not shrink from withdrawing the case from the jury if he is satisfied that no reasonable man "could" (not "would") attach to them the defamatory meaning alleged.

I express no opinion as to the answer which the jury ought to have made to the first question left to them by Hawke J. I am, however, clearly of opinion that the learned judge was right to leave the question to the jury. There was evidence, in my opinion, which would justify a jury in finding, in the language of the statement of claim, that the description "Harold Newstead, thirty-year-old Camberwell man substantially fits the plaintiff." The plaintiff is known as a hairdressers' assistant to a comparatively wide circle of customers and other acquaintances in Camberwell, where he has acquired a modest fame. A reasonable man who had some acquaintance with him might have been prudent enough, on reading the alleged libel, to say: "This may refer to some other Harold Newstead": but I am not satisfied that every reasonable man would necessarily have been so cautious. The man who believes no ill of his neighbour until the accusation is proved beyond doubt against him is without question a reasonable man; but it would be fallacious to argue that every reasonable man attains to that high standard of judicial fairness. Evidence proving the existence of another person to whom the words might have been taken to refer is only relevant to this first question because it proves the words to have been capable of more than one meaning, and of at least one meaning which would not be defamatory of the plaintiff. It cannot now be argued (in this Court, at any rate) that "if words are capable of several meanings, some defamatory and some innocent, they should not be left to the jury." The correct view is that if the words are reasonably capable of two or more meanings, of which one is defamatory, it must be left to the jury to determine in which sense a reasonable man would understand them: see the judgment of Scrutton LJ in Cassidy v Daily Mirror Newspapers.

If I am right in rejecting the appellants' first submission, it is necessary to come to a decision on the interesting and difficult question raised by the second. In my opinion it is now settled law that "liability for libel does not depend on the intention of the defamer; but on the fact of defamation": Cassidy v Daily Mirror Newspapers. I quote these words of Russell LJ, as he then was, as conveniently summarizing the effect of his own judgment, and of that of Scrutton LJ in Cassidy's case, and as clearly stating the principle established by E Hulton Co v Jones. It seems to me to be impossible, consistently with this principle, to make the defendant's liability depend on the accuracy of his words in relation to some person, other than the plaintiff, at whom he says he meant to strike. Nor do I think, with the greatest respect for the view expressed by Farwell LJ in E Hulton Co v Jones, that any doctrine which would make the defendant's liability depend upon his state of mind, or the degree of care which he exercised, is reconcilable with this principle. In the present case, and in any similar case in which a defendant says that he was only speaking the truth of another person and not meaning to attack the plaintiff, it may well be right to direct the jury that a reasonable man must be aware of the possibility (it is for them to say in each case whether it amounts to a probability) that in any district there may be more than one person of the same name, and that, in considering how a reasonable man would understand the words, they must assume that he will read them with such care as may fairly be expected of him, not ignoring any parts of the description which are inapplicable to the plaintiff. If a defendant has been careful and precise, he may by his care avoid the risk of a successful action; but he cannot in my opinion escape liability merely by showing that he was careful and that his intentions were good. The Master of the Rolls has dealt fully with this part of the case, and I would add that I find myself in complete agreement with all his observations upon it.

If these two submissions on the part of the appellants are rejected, it follows, in my opinion, that the learned judge was right in holding that the case had yet to be tried. Mr Slade suggested, however, that it would be proper to make an order limiting the trial to the issue of liability, and to treat the quantum of damages as having been already the subject of a decision. It is, I think, plain that this Court would have no power to take that course, even if it commended itself to us. This is not a case in which a new trial is being sought, or in which a verdict has been given on one issue. The answers of the jury do not amount to a verdict, so that there has been no verdict and no trial. When a jury has failed to agree on the question of liability, its opinion as to what the damages should have been can have no legal effect.

If this Court were to say that such an assessment of damages must stand, it would in effect be adopting the jury's assessment of damages as its own; or, in other words, itself deciding what damages ought to be awarded, a decision which it has no power to make: see Watt v Watt. It is hardly necessary to add that this case is clearly distinguishable from one in which the issues joined on different causes of action have been left to a jury, who have returned a verdict on one or more of them, and been unable to agree as to the others. See, for instance, Marsh v Isaacs. It is equally plain that Order XXXIX., r. 7, of the Rules of the Supreme Court has no application to a case where the Court is not granting a new trial but, on the contrary, is holding that there has not yet been a trial. In the circumstances, I prefer to express no view as to the adequacy of the amount assessed by the jury.

I agree with the Master of the Rolls in thinking that the appeal should be dismissed and it becomes unnecessary to decide the questions raised by the cross appeal.

Appeal dismissed.

Solicitors for appellants: Shirley Woolmer Co.
Solicitors for respondents: Manches Co.

Knupffer v London Express Newspaper

2007-01-31T04:05:00.000+08:00

Knupffer v London Express Newspaper, Limited
[1944] AC 116
House of Lords

Viscount Simon LC, Lord Atkin, Lord Thankerton, Lord Russell of Killowen and Lord Porter.

Defamation - Libel - Libel on a class - Action by individual member - Competence.

It is an essential element of the cause of action for defamation that the words complained of should be published "of the plaintiff." Where he is not named the test of this is whether the words would reasonably lead people acquainted with him to the conclusion that he was the person referred to. The question whether they did so in fact does not arise if they cannot in law be regarded as capable of referring to him. If a defamatory statement made of a class or group can reasonably be understood to refer to every member of it, each one has a cause of action.

Decision of the Court of Appeal [1943] KB 80 affirmed.

APPEAL from the Court of Appeal ([1943] KB 80).

The respondents printed and published in their newspaper on July 1, 1941, the words following: "The quislings on whom Hitler flatters himself he can build a pro-German movement within the Soviet Union are an emigre group called Mlado Russ or Young Russia. They are a minute body professing a pure Fascist ideology who have long sought a suitable fuehrer - I know with what success. Established in France and the United States they claim to have secret agents able to enter or leave the Soviet Union at will. Hitler intends to nominate a puppet fuehrer from their ranks to replace the Soviet national leaders of the Kremlin, and establish a reactionary totalitarian serf State on the German and Italian model. The proposed line of operation is the seducing of Red Army officers from their allegiance to their country and with their aid destroying trade unions, co-operatives, collective farms, and the Soviet parliamentary system with a ruthless massacre of all the present leaders, great and small, of the Russian people. The vast majority of Russian emigrés repudiate these people, but Hitler is accustomed to find instruments among the despised dregs of every community. He intends Ukrainian pogroms as a starting point for general "anarchy in Russia." The appellant, a Russian resident in London, brought an action against the respondents for damages for libel, setting out the above words in the statement of claim, and alleging that they had been falsely and maliciously printed and published of him by the respondents. The respondents, who did not plead justification, denied that they printed or published the words of the appellant or that they were reasonably capable of being understood to refer to him. Evidence was given at the trial that the appellant had joined the Young Russia Party in 1928, that in 1935 he became assistant representative of the party in Great Britain, and that in 1938 he was appointed representative of the party in Great Britain and head of the British branch. The headquarters of the party were in Paris until June, 1940, when they were removed to America. The total membership was about 2,000 and the British branch comprised twenty-four members. Four witnesses who were acquainted with the appellant were called on his behalf and were asked questions to the following effect: "To whom did your mind go when you read that article?" Each intimated that it was to the appellant. Stable J. held that the words of the libel referred to the appellant and entered judgment for him for 3,500 damages. The Court of Appeal (MacKinnon and Goddard L.JJ.) held that the words could not be regarded as referring to him and allowed the appeal. The appellant appealed to the House of Lords.

Angus Macmillan for the appellant. When a defamatory statement is made of an unincorporated association or group or class of persons no representative or collective action can be open to them as a whole. It follows that the only remedy afforded by the law can be individual action at the suit of those members of the class capable of being defamed by the statement. Given certain conditions of practical feasibility it may be that all members of the class can sue individually: Foxcroft v Lacey; Henacre and Bets' Case; Society of Solicitors v Robertson; Reg v Gathercole; Macphail v Macleod; Browne v D C Thomson Co and Gross v Cantor. Though the defamed class be too large and too indeterminate to admit of action being open to each and every member individually, yet any member of whom the defamatory statement is reasonably capable of being understood as defamatory may have a right of action. To determine whether this is or is not the case the ordinary rules relating to libel by innuendo apply: see Jones v E Hulton Co, Ld. In such a case as the present, since there can be no representative or collective action, there would be a denial of a remedy, if individual action were barred. There is no absolute rule and each case must depend on its own facts. In the present case the position of the appellant in the defamed class rendered the words capable of referring to him and witnesses said that they understood them as referring to him. While the words did not necessarily reflect on all the members, they did reflect on the appellant as a particularly prominent member. He is the head of the party in England, the sole link of the British branch with the outside world and with the rest of the party. The circumstance of the publication of the libel in England made it particularly applicable to the appellant, for, at the time, the organization in France had ceased to exist so that, so far as Europe was concerned, England was the only centre left. The article refers to "a minute body," words particularly applicable to England where the membership was minute. The libel particularly attacks those who are responsible for the policy of the party, and, accordingly, directly hits at persons who are representatives in the branches. [He referred to Le Fanu v Malcolmson; Eastwood v Holmes; O'Brien v Eason Son; Wardlaw v Drysdale; Campbell v John Ritchie Co; Campbell v Wilson; Ortenburg v Plamondon; David Syme Co v Canavan.]

Serjeant Sullivan KC and Slade KC for the respondents were not called on to argue.

THE HOUSE took time for consideration.

April 3. VISCOUNT SIMON LC. My Lords, it is an essential element of the cause of action for defamation that the words complained of should be published "of the plaintiff." If the words are not so published, the plaintiff is not defamed and cannot have any right to ask that the defendant should be held responsible to him in respect of them.

In the words complained of in this case there is no specific mention of the appellant from beginning to end, and the only countries in which it is stated that this group of emigrés is established are France and the United States. Evidence was given at the trial that the appellant had joined the Young Russia Party in 1928, that in 1935 he became assistant representative of the Young Russia movement in Great Britain, and that in 1938 he was appointed representative of the movement in Great Britain and head of the British branch of the movement. The headquarters of the movement were in Paris until June, 1940, when they were removed to America.

These facts, standing alone, however, do not justify the conclusion that the words complained of are capable of being read as a defamation of the appellant. The words make allegations of a defamatory character about a body of persons - some thousands in number - who belong to a society whose members are to be found in many countries. In O'Brien v Eason Son, Holmes and Cherry L.JJ. ruled that where comments of an alleged defamatory character were made on an association called the Ancient Order of Hibernians, an individual member of the order, who was not named nor in any way referred to, could not maintain an action of libel. They referred to a well-known dictum of Willes J., uttered more than fifty years before, in Eastwood v Holmes, that "if a man wrote that all lawyers were thieves, no particular lawyer could sue him unless there is something to point to the particular individual." Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to. There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action. A good example is Browne v D C Thomson Co, where a newspaper article stated in Queenstown "instructions were issued by the Roman Catholic religious authorities that all Protestant shop assistants were to be discharged," and where seven pursuers who averred that they were the sole persons who exercised religious authority in the name and on behalf of the Roman Catholic Church in Queenstown were held entitled to sue for libel as being individually defamed. Lord President Dunedin in that case said((1912) SC 363): "I think it is quite evident that if a certain set of people are accused of having done something, and if such accusation is libellous, it is possible for the individuals in that set of people to show that they have been damnified, and it is right that they should have an opportunity of recovering damages as individuals." In the present case, however, the appellant rejected the view that every member of the Young Russia Group could bring his own action on the words complained of, and relied on his own prominence or representative character in the movement as establishing that the words referred to himself. There is, however, nothing in the words which refers to one member of the group rather than another. Le Fanu v Malcolmson was, it is true, a decision of this House in which Lord Cottenham LC and Lord Campbell held that the verdict of a jury awarding damages to the owners of a factory in the county of Waterford against the proprietor of a newspaper published in that county could be upheld notwithstanding that the letterpress, in the course of denouncing the alleged cruelty with which factory operatives were treated, did not specifically refer to the plaintiff's factory. It appears, however, in that case that there were circumstances, such as the location of the factory, which enabled the jurors to identify the plaintiff's factory as the factory pointed at, and the Lord Chancellor observed that "if a party can publish a libel so framed as to describe individuals, though not naming them, and not specifically describing them by any express form of words, but still so describing them that it is known who they are, as the jurors have found it to be here, and if those who must be acquainted with the circumstances connected with the party described may also come to the same conclusion, and may have no doubt that the writer of the libel intended to mean those individuals, it would be opening a very wide door to defamation, if parties suffering all the inconvenience of being libelled were not permitted to have that protection which the law affords." It will be observed that Le Fanu v Malcolmson was a case where there were facts pointing to the particular factory which was meant to be referred to though the article spoke in more general terms of a factory in Waterford. In the present case the statement complained of is not made concerning a particular individual, whether named or unnamed, but concerning a group of people spread over several countries and including considerable numbers. No facts were proved in evidence which could identify the appellant as the person individually referred to. Witnesses called for the appellant were asked the carefully framed question: "To whom did your mind go when you read that article?" and they not unnaturally replied by pointing to the appellant himself, but that is because they happened to know the appellant as the leading member of the society in this country and not because there is anything in the article itself which ought to suggest even to his friends that he is referred to as an individual.

There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - Does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him? Unless the first question can be answered in favour of the appellant, the second question does not arise, and where the trial judge went wrong was in treating evidence to support the identification in fact as governing the matter, when the first question is necessarily, as a matter of law, to be answered in the negative. I move that this appeal be dismissed.

LORD ATKIN (read by LORD THANKERTON ) My Lords, I have read the opinion about to be delivered by my noble and learned friend Lord Porter, and agree with it and with the proposed motion that the appeal be dismissed. I add a few words, however, for I wish to emphasize the point that the judgments in the Court of Appeal appear to over-elaborate the law of libel as applicable to this case. I venture to think that it is a mistake to lay down a rule as to libel on a class, and then qualify it with exceptions. The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. It is irrelevant that the words are published of two or more persons if they are proved to be published of him, and it is irrelevant that the two or more persons are called by some generic or class name. There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration. Even in such cases words may be used which enable the plaintiff to prove that the words complained of were intended to be published of each member of the group, or, at any rate, of himself. Too much attention has been paid, I venture to think, in the textbooks and elsewhere to the ruling of Willes J. in 1858 in Eastwood v Holmes, a case at nisi prius in which the judge non-suited the plaintiff both because he thought there was no evidence that the words were published of the plaintiff and for other reasons, and, so far as the first ground is concerned, it appears to me on the facts to be of doubtful correctness. His words: "it only reflects on a class of persons" are irrelevant unless they mean "it does not reflect on the plaintiff," and his instance "All lawyers were thieves" is an excellent instance of the vulgar generalizations to which I have referred. It will be as well for the future for lawyers to concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoken of a class. I agree that in the present case the words complained of are, apparently, an unfounded generalization conveying imputations of disgraceful conduct, but not such as could reasonably be understood to be spoken of the appellant. It becomes unnecessary to deal with the question of excessive damages. I content myself by saying that, if the libel had been published of the appellant, while the damages awarded are possibly too high, I do not find myself in any degree in accord with the estimate of the damages suggested by the Court of Appeal.

LORD THANKERTON . My Lords, I concur in the opinions which have just been delivered.

LORD RUSSELL of KILLOWEN (read by LORD THANKERTON ). My Lords, I agree that this appeal fails. The crucial question in these cases in which an individual plaintiff sues in respect of defamation of a class or group of individuals is whether on their true construction the defamatory words were published of and concerning the individual plaintiff. Unless this can be answered in the affirmative he has no cause of action. It is not, I think, the case of a defined primary rule with defined exceptions to the rule. I would rather say that in every case it is the question indicated above. When the construction of the matter complained of comes under consideration, there may be something in the defamatory matter or in the circumstances in which it is published, which indicates, and enables a jury to find, that particular individuals are defamed, although they are not named. Le Fanu v Malcolmson is an instance of this. Or the class or group can be identified, and is such that each member thereof is necessarily defamed. Browne v D C Thomson Co is an instance of this. A body of trustees or directors would furnish another instance in which defamation of the body involves defamation of each member thereof. The present case, however, is far removed from these considerations. The newspaper article makes allegations about a body of persons some thousands in number, established in France and the United States of America. It makes no reference of any kind to the appellant or even to England. There is nothing in it which would enable anyone to identify any person as being a member of the body. All that can be said is that a person who read it and who knew that the appellant was a member of the body would know that he was one of the numerous individuals from whose ranks Hitler hoped at some time to nominate a puppet fuehrer in Russia. Nothing more than that. That is really all that I can attribute as the meaning of the answers given by the appellant's friends to the carefully worded and stereotyped question of the appellant's counsel, viz., "To whom did your mind go when you read that article?" In my opinion, it is impossible to construe the article in any way which would justify the view that it contained defamatory matter published of and concerning the appellant.

LORD PORTER (read by LORD MACMILLAN ). My Lords, this case raises once again the question which is commonly expressed in the form: "Can an individual sue in respect of words which are defamatory of a body or class of persons generally?" The answer as a rule must be "No" but the inquiry is really a wider one and is governed by no rule of thumb. The true question always is: "Was the individual, or were the individuals, bringing the action personally pointed to by the words complained of?"

Many of the earlier cases appear to have been concerned with words alleged to refer, not to a class, but to one or more out of a larger number of persons without, it was said, sufficiently indicating who was aimed at. The authorities quoted in argument in Le Fanu v Malcolmson were of this type though in that case itself the defamatory words complained of, while they appeared to apply to a class, in reality were capable of being shown, and were shown, to be applicable to some of the individuals comprising that class. No doubt, it is true to say that a class cannot be defamed as a class, nor can an individual be defamed by a general reference to the class to which he belongs. Willes J.'s well known words in Eastwood v Holmes sufficiently illustrate the point. Nevertheless, the words or the words combined with the relevant circumstances may be shown to refer to some person or persons individually. Le Fanu v Malcolmson has already been quoted, and Foxcroft v Lacy is an earlier example to the same effect. In each case a number of persons were involved, but they sued, jointly or severally, as individuals because their identity was sufficiently ascertained.

The question whether the words refer in fact to the plaintiff or plaintiffs is a matter for the jury or for a judge sitting as a judge of fact, but as a prior question it has always to be ascertained whether there is any evidence on which a conclusion that they do so refer could reasonably be reached. In deciding this question the size of the class, the generality of the charge and the extravagance of the accusation may all be elements to be taken into consideration, but none of them is conclusive. Each case must be considered according to its own circumstances. I can imagine it being said that each member of a body, however large, was defamed where the libel consisted in the assertion that no one of the members of a community was elected as a member unless he had committed a murder.

Whatever the tribunal, the first question is: Are the words in conjunction with the relevant circumstances reasonably capable of being understood to apply to the plaintiff? In the present case that question must, I think, be answered in the negative. It is true that the appellant was and is a member of a body on which very grave reflections have been cast, that he is the representative of that body in England, and that there are only twenty-four members of it in this country, but the newspaper article makes no reference to England. It confines itself to allegations about "a minute body" "established in France and the United States." Minute, no doubt, its membership of 2,000 is when compared with the vast population of Russia, but in itself it forms a considerable body. Out of that body there was nothing to point to the appellant, nor indeed to any individual in this country. Nor do I think the appellant's case is improved by the allegations of his friends that "their minds turned to" him when they read the article. Apart from the vagueness of the question, I can see no justification for an inference that he was the person aimed at. If it could be said, as it is conceded it could not, that each member of the body, wherever resident, could claim to be defamed, some case might be made on behalf of the appellant as one of its members, but as the evidence stands I see nothing to point to him in contra-distinction to the rest. Indeed, inasmuch as he is a member of the English group, he is the less likely to be referred to. I agree that the appeal should be dismissed.

Appeal dismissed.

Solicitors for appellant: Hasties.
Solicitors for respondents: Shirley Woolmer Co.

Cases referred to:

Browne v D C Thomson Co 1912 SC 359.
Campbell v John Ritchie Co 1907 SC 1097, 1101.
Campbell v Wilson (1934) SLT 249.
David Syme Co v Canavan (1918) 25 Commonwealth LR 234, 238.
Eastwood v Holmes (1858) 1 F F 347.
Foxcroft v Lacey (1613) Hob. 89.
Gross v Cantor (1936) 270 N Y 93.
Henacre and Bets' Case (1675) Keble. 525.
Jones v E Hulton Co, Ld [1909] 2 KB 444, 477.
Le Fanu v Malcolmson (1848) 1 HLC 637, 664.
Macphail v Macleod (1895) 3 SLT 91.
O'Brien v Eason Son (1913) 47 Ir LT 266.
Ortenburg v Plamondon (1914) 24 Quebec KB 69.
Reg v Gathercole (1838) 2 Lewin 237.
Society of Solicitors v Robertson (1781) Mor 13935.
Wardlaw v Drysdale (1898) 25 R 879.

Huth v Huth

2007-01-31T04:03:00.000+08:00

Huth v Huth
[1915] 3 KB 32
In the Court of Appeal

Lord Reading, Swinfen Eady LJJ, and Bray J.

Libel - Publication - Communication posted in Unclosed Envelope.

The defendant sent through the post in an unclosed envelope a written communication which the plaintiffs alleged was defamatory of them. The communication was taken out of the envelope and read by a butler who was a servant at the house to which the envelope was addressed in breach of his duty and out of curiosity. In an action for libel brought by the plaintiffs against the defendant:-

Held, that there was no evidence of publication by the defendant of the communication, and that therefore the action would not lie.

APPEAL by the plaintiffs from a judgment of Darling J.

The action was brought to recover damages for libel and for an injunction. At the trial, which took place at the Sussex Assizes on July 11, 1914, before Darling J. and a special jury, the learned judge held that there was no evidence of publication and entered judgment for the defendant.

The plaintiffs were four infants who sued the defendant, their father, by their next friend Miss Hilda Stark. The defendant, Captain Philip S. Huth, R.N.R., was married in 1898 to Miss Edith Greaves, and the plaintiffs were the issue of the marriage.

Up to September, 1913, Captain and Mrs. Huth lived together at Wadhurst, when, owing to differences with her husband, Mrs. Huth left her husband's house at Wadhurst and went with her children to live at Torquay at a house called "Hillstead," where her friend Miss Stark resided. The alleged libel was sent by the defendant to Mrs. Huth by post in an unclosed envelope bearing a halfpenny stamp, addressed by some person whose writing was not identified to "Miss Edith Greaves, care of Miss Stark, Hillstead, Torquay." The unclosed envelope contained an account which had been originally sent in a closed envelope stamped with a penny stamp by a saddler named Boyes at Wadhurst to Mrs. Huth at the Wadhurst address in respect of a bill for 3 8 3 which had been incurred by Mrs. Huth. The defendant had taken the account out of the envelope in which it was enclosed by the saddler and placed it in the unclosed envelope after he had crossed out the name Mrs. Huth on the account and had written upon it (omitting immaterial words) "Not known. Try Miss Edith Greaves," and also the following words: "To Mr T. Boyes, saddler, Wadhurst. The woman known as 'Mrs. Huth' will henceforth take her maiden name of Miss Edith Greaves." On the back of the account the defendant had written: "The woman in question has forfeited all claims to the title of 'Mrs. Huth,' and I hereby and herewith disown her. P. S. Huth. To Mr T. Boyes, saddler, Wadhurst." He then placed the account with the writing upon it in the unclosed envelope stamped with a halfpenny stamp which he sent by post to Mrs. Huth. The plaintiffs alleged that the words meant and were understood to mean that Mrs. Huth was not married and that the plaintiffs were illegitimate.

At the trial, Alfred Edward Manners, a butler who had been in the service of Captain and Mrs. Huth at Wadhurst for some years and continued in Mrs. Huth's service when she left her husband and went to live at Torquay, was called and said that the letter was delivered at the house at Torquay by post and that he took the account out of the envelope and read what was written upon it out of curiosity. He then placed it upon the breakfast table without comment. He knew that Mrs. Huth's maiden name was Miss Edith Greaves.

At the close of the plaintiffs' case Darling J. held that there was no evidence of publication, as the butler had no right to take the document out of the envelope, and that the words were not capable of bearing the meaning alleged, as the children were not mentioned. He therefore entered judgment for the defendant.

The plaintiffs appealed.

H A McCardie and Barrington-Ward (Marshall Hall, KC, with them), for the appellants. There was sufficient evidence of publication of the defamatory matter placed upon the account by the respondent in the fact that the butler took the account out of the envelope and read what was written upon it.

In the early stage of the law of libel there was a marked distinction between a closed up and an open letter. Letters not closed up fall into the same category as post-cards.

Thorley v Lord Kerry was an action on a libel published in a letter which the bearer, who had no authority to do so, happened to open, and that case shows that a man is responsible for the publication which has arisen through the curiosity of a person into whose hands the letter happens to pass. Belief that a third person might open it is evidence to go to the jury of intended publication: Delacroix v Thevenot; Gomersall v Davies. A letter not sealed or fastened up is analogous to a post-card, and a post-card is a publication to every one through whose hands it passes.

[LORD READING CJ. It is assumed that whatever you write on a post-card will be read.]

That shows how material curiosity is as regards the question of publication. There is no difference in principle between the case of an unclosed letter, a post-card, and a telegram, and a communication which would not be actionable if sent in a closed letter may be so if sent by telegram: Williamson v Freer, approved in Robinson v Jones. The question whether or not there has been publication is for the jury: Clutterbuck v Chaffers.

The butler had been in service with Captain and Mrs. Huth for some years and it was part of his duty to attend to the letters. That point was not dwelt upon by Darling J. The defendant knew that the document was likely to be taken out of the envelope and read and he must be responsible for it. The only obligation on the plaintiffs is to show that the words are susceptible of a defamatory meaning, and unless it would be wholly unreasonable to attribute a libellous meaning to them it should be left to the jury to say whether the publication has the meaning ascribed to it: Capital and Counties Bank v Henty; Beamish v Dairy Supply Co; Linotype Co v British Empire Type-setting Machine Co.

In the present case the gist of the libel lies in the innuendo that the children are illegitimate; and the inverted commas to the name - "Mrs. Huth" - do not imply the existence of a valid marriage.

Hohler, KC, and C Doughty, for the respondent. There is no case in which it has ever been held that there has been publication where the letter has been sent in an envelope. In the case of a post-card or telegram there is a presumption of fact the ground for which is that when a person sends a communication wholly uncovered the reasonable inference is that he contemplated that the matter would be published, but that has never been extended to anything in an envelope. Both Thorley v Lord Kerry and Gomersall v Davies were cases totally different from this. Here there is the undisputed evidence of the butler himself that he took the account out of the envelope and read what was written upon it out of curiosity. There can be no publication in those circumstances. This letter was no libel on the children, there was nothing to connect it with them. There is no proof that anything was published of and concerning the plaintiffs.

McCardie in reply. In the case of a telegram there is undoubtedly publication on the part of the sender because the words it contains must be read by the post office clerk. At the other end of the scale is the sealed envelope where it is clear that the sender has taken all possible precautions unless it can be shown that he knew that it would probably be opened. Robinson v Jones turned upon the question whether adequate precautions had been taken to prevent publication. Intermediate between the sealed letter and the telegram comes the gummed envelope. Here the sender has taken all reasonable precautions of a modern character to prevent publication. Whether there has been publication depends on a presumption of fact. If an envelope was sent with the flap cut off so that the contents are visible there would be publication, not as a matter of law but because the jury may infer as a fact that there is publication. The question is one of fact for the jury. There would be evidence of publication upon the ground that the defendant had not taken proper precautions to prevent publication to a third person, and the question for the jury would be whether the defendant had not done something from which they ought to infer publication. The decision in Delacroix v Thevenot was based upon the ground that though the defendant had taken the precaution of gumming his letter, he had not taken the precaution of putting "private" upon it, and therefore in the circumstances he had not taken reasonable precautions to prevent publication. If instead of cutting off the flap of the envelope a person leaves the flap open because he thinks that cutting it off would show too clearly that he wanted the contents to be read there would still be a question of fact for the jury whether there was publication. No jury could ignore the fact that letters with halfpenny stamps are opened by persons who would not otherwise open them. If a person writes a libel and sends it out to the world he has created a weapon of danger and perhaps of disaster, and the law places upon him the burden of taking reasonable precautions when he sends it forth that it is not published.

It is the duty of the postal authorities to see if the contents of an envelope comply with the Post Office Regulations. It is a question for the jury whether there is a probability to the knowledge of the defendant that they will be read. If there is and the contents are read it will be publication. Proper precautions must be taken when a person is sending defamatory matter, and he takes the risk of its being read. If the law were otherwise the result would be to afford a shield to libellers. [Odgers on Libel, 5th ed., p. 163, was also referred to.]

LORD READING CJ. In this case the plaintiffs, who are four infants, brought an action for libel by their next friend against the defendant, who is their father, the object of the action being, it is said, to obtain an injunction to prevent the repetition of matter which, according to the plaintiffs' case, is defamatory.
For some reason which has not been brought to the knowledge of the Court the wife of the defendant left him, and went to live at Torquay with her four children, in the house of a Miss Stark, the next friend. It is neither material nor necessary to probe into the delicate question of the relations existing between husband and wife: it is sufficient to say that evidently the defendant was extremely angry with, or wished in some way to annoy, his wife, and he sent a letter addressed to her which has given rise to this action. The letter was addressed to Mrs. Huth by her maiden name, care of Miss Stark, at the address at Torquay. Inside the letter was an account, an ordinary tradesman's bill, which had been sent by a saddler named Boyes to Mrs. Huth at Wadhurst, where Captain Huth was still living, in respect of an account for 3 8 3 which had been incurred upon orders given by Mrs. Huth. Captain Huth sent the account in an envelope addressed as I have just described, and on the account wrote the words complained of in this case. "Mrs. Huth" was struck out, and in the defendant's handwriting appear "Not known. Try Miss Edith Greaves"; that was the maiden name of Mrs. Huth. Later there appear on the same document addressed to the saddler: "The woman known as 'Mrs. Huth'" - "Mrs. Huth" was in inverted commas - "will henceforth take her maiden name of Miss Edith Greaves. Yours truly, P. S. Huth." Again on the same document was written: "The woman in question has forfeited all claims to the title of 'Mrs. Huth'" - "Mrs. Huth" was again in inverted commas - "and I hereby and herewith disown her. P. S. Huth." That account, with that writing upon it by the defendant, was enclosed in the envelope addressed to the lady in her maiden name, under cover of a halfpenny stamp, and consequently in an envelope which was neither sealed nor gummed.

When the action came before Darling J. and a jury, he withdrew the case from the jury on the grounds (1.) that there was no evidence of publication; (2.) that the words complained of were not capable of a defamatory meaning in relation to the persons who were suing; the defendants' four children and not the wife were suing, on account of the difficulties presented by the law relating to husband and wife. The complaint on behalf of the plaintiffs was that the libel alleged by way of innuendo that as Mrs. Huth had not gone through a valid marriage ceremony with Captain Huth, the plaintiffs, the four children, were illegitimate. The learned judge came to the conclusion that the words complained of were not capable of bearing a defamatory meaning with regard to the four children. The plaintiffs appealed to this Court, and we have had an able and interesting argument upon both questions. With regard to the first point it was contended on behalf of the plaintiffs that there was evidence to go to the jury that the document enclosed in the envelope had been published to some third person because, first, the butler had in fact read it, his attention having been attracted by the peculiar form of address to Mrs. Huth, as he had lived for some years with Captain and Mrs. Huth, and that he then took out the account and read the defamatory matter. The butler was called at the trial and said that he opened the letter in the sense of removing the document from inside the envelope, and read it, and that he did so because he was curious. It would be impossible successfully to contend - and it is not contended, as I understand - that if a person, in breach of his duty, were to open a letter, and there was no reason to expect that he would commit that breach of duty, the fact that he had opened it and read it would amount to publication by the person who sent it; but on behalf of the appellants it was contended that, as the document was enclosed in an unsealed and ungummed envelope, it must be assumed that the defendant knew, or ought to have known, or might have expected, that a servant in the house would open a letter in such an envelope. It was further contended that an envelope unclosed, with a halfpenny stamp on it, is always liable to be opened by the postal authorities and the document it contains examined and read, and consequently that it must be held in the present case that there was some evidence of publication to the Post Office. With regard to the first point - the alleged publication to the butler - I am clearly of opinion that there is no evidence of publication to him by the defendant merely in the fact that the butler opened and read the letter because he was curious. Fortunately, it is no part of a butler's duty to open letters which come to the house of his master or mistress addressed to them; and in this case there is nothing exceptional, save that his curiosity was excited by reason of the lady being addressed by her maiden name. It is impossible to prevent a man's curiosity being excited, but it does not justify him in opening a letter, and (which is the only matter of importance in this connection) the butler's curiosity could not make the defendant liable for the publication to him of the contents of the envelope. It must of course be borne in mind that however insulting and offensive the matter might be which the husband wrote to his wife, if it was addressed to the wife and only intended for her, and she alone saw it, no action for libel could be brought by her: an action for libel can only be brought if there is publication to some third person. In my judgment there was no evidence of publication to the butler.

Mr McCardie has strenuously and very ingeniously raised a further point on behalf of the appellants with regard to the Post Office, and I think that the broad general proposition he has submitted requires examination with some care. I should certainly be very sorry to lay down any proposition of law which would enable libels to be published with greater safety than has hitherto been the case. Mr McCardie based his proposition upon the ground that there is a presumption of fact that the contents of a post-card sent through the post have been published to some third person, and consequently the mere proof that the post-card was written by the defendant, and posted by him, is in itself held to be some evidence that the defendant published the writing on the post-card. That doctrine is founded upon very clear grounds rather of fact than of law. It has been laid down - I think rightly - that the Court will take judicial notice of the nature of the document, i.e., that it is a post-card, and will presume, in the absence of evidence to the contrary, that others besides the person to whom it is addressed will read and have in fact read what is written thereon. That is the presumption of fact which arises as a matter of law. If, even in such a case as that, the defendant could establish that the postcard never was read by a single person - although it is very difficult to conceive that the proof could be given - he would, notwithstanding the presumption, succeed in the action, because he would have proved that there was no publication. The fact that it is practically impossible to prove that any third person read it is the reason why the law takes judicial notice of the nature of the document, and says that the mere fact that the words are written on a post-card which is posted must be taken as some evidence that a third person will read it, or has read it. That is clear law and is quite beyond dispute. Mr McCardie contends that if that is so with regard to a post-card, the same presumption must be made with regard to an unsealed and ungummed letter; in other words that a document circulated with a cover must be treated just as would be one without a cover. The question is whether that contention is sound. He has referred us to several authorities which require to be very shortly examined. With regard to Thorley v Lord Kerry, which came before Sir James Mansfield C.J. in the year 1812, the point was not taken. The matter came before the Court on a writ of error. It appears that Lord Kerry had written a letter which he had delivered unsealed to his servant to carry. One does not wonder that the point that that was no evidence of publication to the servant was not taken, for the period was long before the days of post-cards, or of a halfpenny post in unsealed or ungummed envelopes. It was further contended that in Delacroix v Thevenot there was a similar statement of the law, although under different circumstances. Lord Ellenborough there held that inasmuch as the letter, which was not marked "private," was sent to the address of the plaintiff, and the clerk there was in the habit of opening letters directed to the plaintiff which were not marked "private," and the clerk opened the letter, there was evidence of publication to the clerk. It is to be observed that in that case the clerk said he opened the letter, and that he believed that the defendant knew that he was in the habit of opening the plaintiff's letters and therefore it was proved that there was publication to him.

Our attention was also directed to the judgment of Palles CB in Robinson v Jones. It does not carry the matter any further. It deals with a question of privilege and only restates the law with regard to post-cards. Gomersall v Davies, which came before the Court of Appeal, was also referred to. In that case a letter was sent to the plaintiff by the defendant and was opened by the clerk of the addressee, the plaintiff, in the ordinary course of business. It was held that there was evidence of publication to go to the jury immediately it was proved that the clerk opened the letter in the ordinary course of his duty, and read it. Questions were left by the judge to the jury, who answered them in favour of the plaintiff, and the Court of Appeal were of opinion that the questions were rightly left to the jury because on the facts there was evidence that, to the defendant's knowledge, letters addressed to the plaintiff and received in the ordinary course of business would be likely to be opened by persons in the plaintiff's employment. It is to be observed that the distinction between the position of the clerk in that case and that of the butler in the present case is that the clerk opened the letter in the ordinary course of his business, while the butler opened it in breach of his duty, outside the ordinary course of his business.

It appears to me - having given consideration to all the authorities to which our attention has been called - that there is no such presumption as was contended for by Mr McCardie with regard to letters which are unclosed. It is not right, in my view, to treat a letter sent in an envelope with a halfpenny stamp and ungummed as though it were an open letter. Before the document can be abstracted from the envelope and read, there must be some act by the person who has it in his hands in the nature of opening the letter which is ungummed, and I do not think that the Court can presume that letters would be opened in the ordinary course of business, or that they might be opened if sent in this fashion. It is quite true that the Post Office authorities have the right to examine the document which is in the envelope with the halfpenny stamp upon it. It is part of the duty of the Post Office authorities to see that that which is sent under cove of a halfpenny stamp is matter which can properly be sent for halfpenny and that it does not require a penny stamp. But the is not sufficient for the success of the appellants in this case If they could have called a postman, or a postmaster, or some official who would have said "Yes, I examined this document and read it in order to see whether it could properly go through the post under a halfpenny stamp," then would arise a state of things which I think would amount to evidence of publication by the defendant. But that is where the appellants fail. No such person can be called. I cannot think that the Court is entitled to presume, merely because the letter went through the post, that it would be opened. I suppose that what is said with regard to letters with a halfpenny stamp upon the envelope is true of every package and parcel which is sent through the Post Office, and in certain circumstances it may be true also of other documents even though they may be sealed. But that does not justify the presumption that a letter in an envelope which is ungummed is to be treated just as a post-card. I think that that point fails, and that there is, therefore, no evidence of publication in this case.
Upon the point as to whether the words are capable of a defamatory meaning I do not propose to express any opinion. It is sufficient to dispose of this case by holding that there was no evidence of publication. Of that I am satisfied, and therefore the appeal must be dismissed.

SWINFEN EADY L.J. This action is one of an unusual character, being an action by infant children against their father for libel. It claims damages and an injunction, and the object of the action is to stop the defendant's wife being annoyed and distressed by documents, alleged to contain statements defamatory of the plaintiffs, being sent to her through the post. In form it is an action by the children, and that form was necessary by reason of the wife being unable to bring an action of this kind against her husband. The substance of it is to protect the wife against a further incursion of these documents.

The learned judge at the trial held that there was no evidence of publication, and it is that point which is first raised on this appeal. The document in question was enclosed in an envelope, but the envelope was not sealed or fastened with any adhesive matter, or otherwise, and it was sent through the post with a halfpenny stamp upon it. The alleged publication was that the butler, on receipt of the letter through the post, opened the envelope, perused the enclosure, and, having replaced it in the envelope, placed it without comment on the dining-room table for his mistress. The mistress was in the house and was living there at the time. It is not suggested that the butler had any duty in connection with the letter except to put it unopened on the table. The butler was called at the trial and said, on being pressed, that he opened it from curiosity to see what the enclosure was. It was therefore opened and perused by the butler in breach of his duty. In my judgment the question of publication can shortly be disposed of in this way. There was no evidence of publication because there was no evidence that, to the defendant's knowledge, a letter addressed to his wife and enclosed in this envelope - but unsealed and unstuck down - would, in the ordinary course, be likely to be opened by the butler or by any other person in the employ of the mistress, or at the mistress's house, before it was delivered to her.

When the authorities which were referred to are considered it will be seen that, in each of those cases, the defendant - who must be dealt with upon the footing that he intended the natural consequences of his act in the circumstances of the case - intended the publication which in fact took place. In Delacroix v Thevenot, where the libel was contained in a letter and the letter was opened by a clerk, the evidence was not only that the clerk was in the habit of opening letters directed to his master which were not marked private, but that the defendant, who was acquainted with the plaintiff, was aware of the nature of the clerk's employment. Lord Ellenborough said that in those circumstances there was sufficient evidence for the jury to consider whether the defendant did not intend the letter to go into the hands of a third person, which would be a publication. It must be borne in mind, in connection with a publication of this sort, that it is immaterial whether the letter is sealed or unsealed, because if a person sends a letter, although carefully sealed, to, say, a merchant at his office, knowing that the merchant has a staff of clerks who in the ordinary course of business open all letters sent to the merchant's office, that would be clearly a publication if the letter were opened and perused by a clerk in that way, even although that letter were most carefully sealed. Again, in Gomersall v Davies the question raised on appeal was whether there was evidence of the publication of the libel. What had happened was that the plaintiff was a man engaged in the business of a game and poultry salesman, and evidence was given that in the ordinary course letters addressed to him would be opened by his clerk or foreman, and brought to him in the market, and A L Smith LJ dealt with it on appeal in this way, the question being whether there was evidence of publication; he said: "The jury, in answer to questions put to them, found that the plaintiff's business was such that, to the defendant's knowledge, letters addressed to the plaintiff, and received in the ordinary course of business, would be likely to be opened by persons in the plaintiff's employ. In the face of that finding, how could it be said that this was an accidental publication?" In each of those cases, therefore, there was evidence from which publication could be established by the fact that it was published in the way that the defendant must have been presumed to have intended it. Evidence of that sort is entirely wanting in the present case.

On behalf of the appellants Mr McCardie urged that a letter enclosed in an unclosed wrapper or envelope must be treated as being on the same footing as a post-card, or a telegram. I am quite unable to accede to that view. With regard to a postcard and a telegram, it was said by A L Smith MR in Sadgrove v Hole that "It is certainly my opinion that if a man writes a libel on the back of a post-card and then sends it through the post there is evidence of publication, as in the case of a telegram. The cases cited show that the two stand on the same footing"; but that is wholly different from a case where a communication is enclosed in a cover, and is not, without some unauthorized act, withdrawn from the cover and perused. If the plaintiffs had been able to establish that the perusal of this - communication was in the ordinary course by a person in the discharge of his duty, the case would have been different, as, for instance, if they were able to show that it was withdrawn and perused by a Post Office official. By the Post Office Regulations there are certain things which are prohibited from being sent through the post at all. There are other things which the public have a privilege of sending under a halfpenny stamp, but they are a limited class of things, and if the article, say a communication in the nature of a letter, is sent in this way, it is liable to be surcharged, and, in order to protect the Post Office, the Post Office officials have certain statutory powers. In the General Post Office Rules contained in the Post Office Guide for January to March, 1915, at pp. 17 and 18 under the heading "Prohibited Articles," it is stated that it is provided by the Inland Post .Warrant of 1903 that certain articles shall not be posted, or conveyed, or delivered by post, and if they are, in breach of this regulation, tendered for transmission, transmission will be refused, or if they are detected in transit, they will be detained, and they are liable to be dealt with in such manner as the Postmaster-General may direct, and the sender is liable, in some cases, to prosecution. Although, therefore, persons in the employ of the Postmaster-General in the discharge of their duty may have to peruse and examine postal communications, and although a publication of a libel in that way would be established if perusal took place, there is no inference of fact or law to be drawn that, in all cases, communications of this sort are opened and read by the Post Office officials.

In these circumstances I am of opinion that in the present case there was no evidence of publication to go to the jury and the learned judge was right in the view that he took, and the appeal on this point fails. That being so, it is not necessary to consider the other portion of the case.

BRAY J. I am of the same opinion. At the trial the learned judge withdrew the case from the jury on two grounds - first, that there was no evidence of publication by the defendant, and secondly, that the words were not capable of being read in a defamatory sense.

As to the first ground, the facts are not in dispute. The writing was placed in an envelope which was not closed or sealed, it was posted, and arrived in the ordinary course of post at the house where Mrs. Huth resided, and was opened and read by the butler, and the first contention of the plaintiffs was that that constituted a publication by the defendant. It was a publication, but the question is whether it was a publication by the defendant, or one for which he was responsible. It appears quite clearly from the butler's evidence that he knew perfectly well that although the envelope was addressed to "Miss Edith Greaves," it was intended for his mistress, Mrs. Huth. Also there was nothing which entitled him, in the ordinary course of his duty, to open the envelope. He admitted that he did so from curiosity. There can be no doubt, in those circumstances, that the opening of the envelope, and the reading of its contents, was a wrongful act by the butler. In my opinion it is quite clear that, in the absence of some special circumstances, a defendant cannot be responsible for a publication which was the wrongful act of a third person. He cannot be said, except in special circumstances, to have contemplated it. It was not the natural consequence of his sending the letter, or writing, in the way in which he did. There are no special circumstances in the present case, and therefore, in my opinion, the publication, such as there was, to the butler was not a publication by the defendant, or a publication for which he could be made responsible.

It was also contended that the fact that the document was in an envelope unclosed was in itself some evidence from which a jury would be at liberty to infer that it was in fact published. But the only evidence that can be suggested is that a presumption of fact arises from the letter being sent in that way. What is a presumption of fact? A presumption of fact is one which arises from the high degree of probability of the existence of the fact. A familiar instance is where a man is charged with larceny, and is found in recent possession of the stolen goods. In that case there is a presumption of fact which affords evidence that the prisoner did in fact steal them, arising from the high degree of probability, which exists from his recent possession, that he did in fact steal them. Can there be such a presumption of fact in the present case? It is not analogous to a post-card or a telegram. A distinct act of taking its contents out of the envelope was required. Was there any presumption of fact - was there any high degree of probability - that that would occur in the course of transmission from the defendant through the post to Mrs. Huth? In my opinion there was not. It is said that the Postmaster-General, or those deputed by him, have the right to open the envelope and read its contents in order to see if they are in accordance with the Post Office Regulations. I assume that. I have no doubt that it is so. But ought that to induce us to say that there is a high degree of probability that it would be so opened? On the contrary, it is the barest possibility, and the barest possibility will not do. In my opinion there is no such presumption of fact, and there being no evidence which would justify the jury in saying that the defendant was responsible for the publication to the butler, the learned judge was right in withdrawing the case on that point from the jury.

As to the other point I do not desire to say anything, but it must not be understood that I therefore am dissenting in any way from the learned judge's judgment.

Appeal dismissed. (1)

Solicitors for appellants: Calder, Woods Pethick, for Urry, Woods Pethick, Ventnor.
Solicitors for respondent: G. F. Hudson, Matthews Co., for Ragau Martin Frend, Tunbridge Wells.

(1) NOTE. - For reasons which are not material to the report no point was taken on behalf of the appellants as to whether an action would lie against the respondent in respect of the written address upon the envelope.

Cases referred to:

Beamish v Dairy Supply Co. (1897) 13 Times LR 484.
Capital and Counties Bank v Henty (1882) 7 App Cas 741.
Clutterbuck v Chaffers (1816) 1 Stark 471.
Delacroix v Thevenot (1817) 2 Stark 63.
Gomersall v Davies (1898) 14 Times LR 430.
Linotype Co v British Empire Type-setting Machine Co (1899) 81 LT 331.
Robinson v Jones (1879) 4 LR Ir 391.
Sadgrove v Hole [1901] 2 KB 1, at p 4.
Thorley v Lord Kerry (1812) 4 Taunt 355.
Williamson v Freer (1874) LR 9 CP 393.

Theaker v Richardson

2007-01-31T04:02:00.000+08:00

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.

Derbyshire County Council v Times Newspapers Ltd

2007-01-31T04:00:00.000+08:00

Derbyshire County Council v Times Newspapers Ltd and Others
[1993] AC 534, [1993] 1 All ER 1011, [1993] 2 WLR 449, 91 LGR 179
House of Lords

Lord Keith of Kinkel, Lord Griffiths, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Woolf

Defamation - Parties - Corporation - Publication relating to administration of local authority's superannuation fund - Publication insinuating maladministration of pension funds - Balance between public interest in freedom of speech and protection of authority's reputation - Whether local authority entitled to maintain action in defamation

The plaintiff, a local authority, brought an action for damages for libel against the defendants in respect of two newspaper articles which had questioned the propriety of investments made for its superannuation fund. On a preliminary issue as to whether the plaintiff had a cause of action against the defendants, the judge held that a local authority could sue for libel in respect of its governmental and administrative functions, and dismissed the defendants' application to strike out the statement of claim. On appeal by the defendants, the Court of Appeal held that the plaintiff could not bring the action for libel.

On appeal by the plaintiff:-

Held, dismissing the appeal, that since it was of the highest public importance that a democratically elected governmental body should be open to uninhibited public criticism, and since the threat of civil actions for defamation would place an undesirable fetter on the freedom to express such criticism, it would be contrary to the public interest for institutions of central or local government to have any right at common law to maintain an action for damages for defamation; and that, accordingly, the plaintiff was not entitled to bring an action for libel against the defendants, and its statement of claim would be struck out (post, pp. 547E-F, 549B, 550D, 551H-552E).

Manchester Corporation v Williams [1891] 1 QB 94, D.C. considered.
Bognor Regis Urban District Council v Campion [1972] 2 QB 169 overruled.
Decision of the Court of Appeal [1992] QB 770; [1992] 3 WLR 28; [1992] 3 All ER 65 affirmed on different grounds.

APPEAL from the Court of Appeal.
This was an appeal, by leave of the Court of Appeal, by the plaintiff, Derbyshire County Council, from the decision of the Court of Appeal (Balcombe, Ralph Gibson and Butler-Sloss L.JJ.) [1992] QB 770 allowing an appeal by the defendants, Times Newspapers Ltd, Andrew Neil, the editor of "The Sunday Times," and Rosemary Collins and Peter Hounam, two of the newspaper's journalists, from the order of Morland J. [1992] QB 770 holding, on a preliminary issue, that the plaintiff could maintain a cause of action in libel against the defendants in respect of articles in issues of "The Sunday Times" dated 17 and 24 September 1989.
The facts are stated in the opinion of Lord Keith of Kinkel.

Charles Gray Q.C. and Heather Rogers for the plaintiff. In exercising its powers and carrying out its functions as a county council, the plaintiff has a reputation that is distinct from that of its individual members or officers. At common law trading corporations can sue for libel: Metropolitan Saloon Ombibus Co Ltd v Hawkins (1859) 4 H. N. 87. It is not necessary for the corporation to prove actual damage: South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133. Non-trading corporations can also sue: National Union of General and Municipal Workers v Gillian [1946] KB 81. So, too, can trade unions: Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB 585. Each of these bodies, although having only legal personality, has a legitimate entitlement to protect its reputation from defamatory attacks. Further, a partnership (which does not have a separate legal personality) is entitled to sue in its own name for damage done to its reputation: Le Fanu v Malcolmson (1848) 1 H.L.Cas. 637. There is no reason in logic or principle to distinguish the plaintiff from these bodies.

Bognor Regis Urban District Council v Campion [1972] 2 QB 169 remains good authority for the proposition that a local authority has a "governing" reputation, which it can protect by an action for libel. [Reference was also made to City of Prince George v British Columbia Television System Ltd (1978) 85 D.L.R. (3d) 755; (1979) 95 D.L.R. (3d) 577; Church of Scientology Inc. v Anderson [1980] W.A.R. 71; Die Spoorbond v South African Railways, 1946 A.D. 999 and Argus Printing and Publishing Co Ltd v Inkatha Freedom Party, 1992 (3) S.A. 579.] The Court of Appeal erred in holding that Manchester Corporation v Williams [1891] 1 QB 94; 63 L.T. 805 conflicts with the Bognor decision and casts doubt on the general principle that a local authority is entitled to sue for libel. That case only decided that a local authority could not sue for libel in respect of an imputation of bribery and corruption. The basis of the decision was the wrong conclusion that a local authority cannot commit those offences. The common law is thus clear and certain.

There is no statutory restriction preventing the plaintiff from taking action for libel. On the contrary, section 222 of the Local Government Act 1972 confers a wide power on local authorities to institute civil proceedings of all types. The need for a local authority to be able to sue for libel to protect its reputation is a real and pressing one. Damage to its reputation may make it more difficult for the authority to borrow money or tender for contracts, and may disaffect its staff or deter participation in its pension scheme. The rationale for permitting persons other than individuals to sue for libel thus applies with equal force to local authorities.

Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969) should not be used to determine what the common law is, or to resolve any uncertainty in the common law; in fact, however, English domestic law is consistent with article 10. It is accepted that the precepts underlying the Convention may be looked at to decide whether the public interest in freedom of information should prevail over the right to protect one's reputation. [Reference was made to Reg. v Secretary of State for the Home Department, Ex parte Brind [1991] 1 AC 696, 760.] But regard should be had to the fact that the right to freedom of expression under the Convention is not unlimited. It is subject to restrictions which are prescribed by law, or necessary in a democratic society, or necessary for the protection of the reputation or rights of others. [Reference was made to Attorney-General v Antigua Times Ltd [1976] AC 16, 25-28.] Any restriction should be proportionate to its aim.

The article should not be applied in the abstract to conclude that a local authority's right to bring a libel action will inevitably and in all circumstances infringe the article. The correct approach should be to consider whether in the context of the particular case, the relevant domestic law is unnecessarily restrictive: see Castells v Spain (1992) 14 E.H.R.R. 445; Lingens v Austria (1986) 8 E.H.R.R. 407 and Oberschlick v Austria, 23 May 1991, Publications of the European Court of Human Rights, Series A No. 204. Even if the question were to be asked in the abstract, a thorough investigation of the aims and effect of domestic law would show that the English law of defamation strikes a balance between the rights of protection for reputation and of freedom of expression. Thus, a local authority has to show that a defamatory article in a newspaper refers to it as such, not just to individuals associated with it. The newspaper only has to prove the "sting" of the libel, not every single allegation. The defence of fair comment gives a wide protection to the newspaper. Honest comment (including inferences of fact) cannot be the subject of a successful libel action: Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743 and Telnikoff v Matusevitch [1992] 2 AC 343. Damages awarded to corporate plaintiffs are not large. A local authority has no feelings to be hurt by a libel: see Fielding v Variety Incorporated [1967] 2 QB 841. Thus, the English law of defamation imposes no unnecessary or illegitimate restriction on freedom of expression within article 10.

A local authority should not be deprived of the right to bring an action for libel because of the possibility of its being able to prosecute for criminal libel. This offence is virtually extinct and is anomalous and difficult to reconcile with article 10: see Reg. v Wells Street Stipendiary Magistrate, Ex parte Deakin [1980] AC 477. Nor should the right be denied because of the availability of actions for malicious falsehood. If there is a legitimate need for a local authority to protect its reputation, why should its ability to do so depend on whether, fortuitously, it could prove malice. A non-malicious publication may cause just as much damage as a malicious one.

If a local authority has a right to sue for libel at common law, only Parliament, not the courts, can take away that right: see Dennis v United States of America (1951) 341 U.S. 494.

Anthony Lester Q.C. and Desmond Browne Q.C. for the defendants. The plaintiffs are not a trading corporation or some other private body: they are a governmental body performing public duties and exercising public powers not possessed by individual citizens or private bodies. There is no justification for treating a local authority's governing reputation as analogous to a private company's or trade union's business reputation, and there is no legitimate public interest in restricting or interfering with freedom of speech to protect that governing reputation. For the courts to allow an elected public authority to sue for libel would be to authorise unnecessary interference by the common law with freedom of expression in a democratic society. It is important that there should be as much public information and public criticism about the workings of local government as there is about the workings of central government. If the council were to succeed in this appeal, any governmental body with corporate status could bring libel proceedings against a newspaper or individual citizen alleged to have defamed its governing reputation. Such bodies would be able to wield the very sharp sword of libel proceedings to deter or suppress public criticism and information about what they do as the people's representatives and public servants. They could do so using public funds and knowing that an ordinary individual citizen could not afford access to justice to defend his freedom of political expression against such a claim. This is not a hypothetical matter: the defendant in the Bognor Regis case [1972] 2 QB 169 was completely ruined by the legal costs of defending a libel trial for having handed out a leaflet at a ratepayers' association meeting in a village hall. Freedom of expression is an essential feature of citizenship and of representative democracy. Close scrutiny of possible threats to fundamental freedoms is called for: Reg. v Independent Television Commission, Ex parte T.S.W. (Broadcasting) Ltd, The Times, 30 March 1992.

The plaintiffs seek to extend the tort of libel well beyond the ambit of the criminal offence of seditious libel, which is designed to protect the government and the public against scurrilous and extreme attacks upon the Crown or government institutions: see Reg v Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury [1991] 1 QB 529. Seditious libel requires proof of a seditious intention, whereas state of mind is immaterial for defamatory libel, since malice is implied from the mere publication of defamatory matter. The development of a tort of government libel, much more draconian than the crime of seditious libel, would have a chilling effect upon the freedom of expression of newspapers as well as of the individual citizen critic of government. The press is not above the law or entitled to some special privilege or immunity not enjoyed by the individual citizen: it has no greater or fewer rights than does the citizen for whom it is the surrogate.

In the Bognor Regis case [1972] 2 QB 169 no attempt was made to weigh the public interest in freedom of expression against the public interest in the protection of reputation. Although followed in City of Prince George v British Columbia Television System Ltd, 85 D.L.R. (3d) 755 it is uncertain whether that case remains good law in Canada in the light of the constitutional guarantee of free speech in the Charter of Rights and Freedoms: see Edmonton Journal v Attorney-General for Alberta (1989) 64 D.L.R. (4th) 577 and Retail, Wholesale Department Store Union, Local 850 v Dolphin Delivery Ltd (1986) 33 D.L.R. (4th) 174. Where there has been judicial weighing of the competing public interests, it has been held that governmental bodies cannot sue in respect of their governing reputations: City of Chicago v Tribune Co (1923) 139 N.E. 86; New York Times Co v Sullivan (1964) 376 U.S. 254 and Die Spoorbond v South African Railways, 1946 A.D. 999.

In the United Kingdom there is no Act of Parliament incorporating the guarantee of free speech contained in article 10 of the European Convention on Human Rights and Fundamental Freedoms into domestic law. However, the common law is not ethically aimless. Subject to the sovereign power of Parliament to intervene by legislation, the common law matches the protection given to free speech by article 10. The fundamental human right to free expression is an essential feature of citizenship and of representative democracy. It is a basic principle of the unwritten British Constitution, protected by the common law.

In the absence of legislative intervention by Parliament, it is the constitutional function of the courts, when declaring and applying the common law, to ensure that the law does not unnecessarily interfere with free expression: see In re Alberta Legislation [1938] 2 D.L.R. 81; Australian Capital Television Pty. Ltd v Commonwealth of Australia (No. 2) (1992) 108 A.L.R. 577; Nationwide News Pty. Ltd v Wills (1992) 108 A.L.R. 681 and Te Runanga O Wharekauri Rekohu Inc. v Attorney-General (unreported), 3 November 1992.

Where a statute confers an apparently unfettered power on a minister to restrict free expression, the common law principles of statutory interpretation require the restriction to be closely scrutinised and to be justified as necessary to protect an important competing public interest: see Reg. v Secretary of State for the Home Department, Ex parte Brind [1991] 1 AC 696. There is a similar requirement where the restriction upon free expression is imposed by the common law itself: Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248 and Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109. Furthermore, the courts will, unless constrained by binding authority, declare the common law so as to be in harmony with the right to freedom of expression recognised and guaranteed by article 10 of the Convention and with the principle that only necessary interferences with freedom of expression are acceptable. The Convention, though not part of domestic law, enshrines the common law. The mere existence of a legal rule can violate a Convention right or freedom if it has a chilling effect upon the practical enjoyment of that right or freedom: Dudgeon v United Kingdom (1981) 4 E.H.R.R. 149 and Times Newspapers Ltd v United Kingdom (Application No. 14631/89) (unreported), 5 March 1990. [Reference was also made to Castells v Spain, 14 E.H.R.R. 445 and Hector v Attorney-General for Antigua and Barbuda [1990] 2 AC 312.] The application of the Bognor Regis decision undoubtedly interferes with free speech, authorises potential restrictions and penalties and has a serious chilling effect upon freedom of speech generally. A rule enabling a government corporation to sue for libel thus cannot be justified under article 10(2) in accordance with the principles of objective necessity and proportionality. These principles are of particular importance so far as the press is concerned as public watchdog. The limits of permissible criticism are wider with regard to the government. A critic of government conduct ought not to have to guarantee the truth of all his factual assertions endangering the esteem in which government is held on pain of a successful suit for libel. This would deter newspapers and individual citizens from offending governmental bodies and would lead to self-censoring and public ignorance about the workings of government. Placing the burden of proving justification upon the defendant does not mean that only false allegations would be deterred. In addition, would-be critics of government conduct will be deterred from voicing criticism even though what they published was reasonably believed to be true and was in fact true, because of doubt of whether it could be proved to the satisfaction of a court of law, or because of fear of the expense of having to do so: see City of Chicago v Tribune Co, 139 N.E. 86, approved in New York Times Co v Sullivan, 376 U.S. 254. [Reference was also made to Hoechst A.G. v Commission of the European Communities (Case 46/87R) [1987] E.C.R. 1549; Sixteen Austrian Communes v Austria (1974) 46 Eur.Comm.H.R.Dec. 118; Sunday Times v United Kingdom (1979) 2 E.H.R.R. 245; Sunday Times v United Kingdom (No. 2) (1991) 14 E.H.R.R. 229 and Foster v British Gas Plc. [1991] 2 AC 306.]

Even if a governmental body is entitled to sue for libel, a constitutional privilege should attach to a publication imputing maladministration to such a body. The categories of publications which enjoy privilege at common law are not closed: London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15.

An individual councillor or local government officer can bring proceedings in his own name for an attack upon his personal reputation in relation to his official activities. It is open to question, however, whether qualified privilege attaches to the publication of fair information on a matter of public interest concerning the manner in which a public officer performs public functions: see Webb v Times Publishing Co Ltd [1960] 2 QB 535 and Blackshaw v Lord [1984] QB 1, in which the Court of Appeal took too narrow a view of the scope of privilege in such circumstances.

The plaintiffs cannot rely on section 222(1) of the Local Government Act 1972, since their proceedings are not capable of promoting or protecting the interests of the inhabitants of Derbyshire generally and they constitute an unnecessary interference with free expression.

Browne Q.C. following. The freedom to express criticism of a governmental body can be more easily stifled by a series of civil actions than by criminal prosecutions: City of Chicago v Tribune Co, 139 N.E. 86, 90. Unlike a criminal prosecution, in a civil action the plaintiff does not need to show a prima facie case as a pre-condition to going for trial. The mere issue of a writ tends to have a gagging effect; and once proceedings are set down for trial, they become active so that further publications are caught by the strict liability rule: section 2(3) of, and Schedule 1 to, the Contempt of Court Act 1981. A civil court can grant prior restraint of publication, and damages are potentially without limit. There is no legal aid and proceedings are notoriously costly. The plaintiff does not have to prove his claim beyond reasonable doubt. [Reference was made to Cox v Feeny (1863) 4 F. F. 13.]

Gray Q.C. in reply. If there is a need for greater protection to be given to freedom of expression, the manner of achieving that ought not to be an arbitrary removal from certain plaintiffs of their rights, but should be by extension of existing common law defences. The route to reform should be through the law of privilege.

Their Lordships took time for consideration.

18 February 1993. Lord Keith of Kinkel: My Lords, this appeal raises, as a preliminary issue in an action of damages for libel, the question whether a local authority is entitled to maintain an action in libel for words which reflect on it in its governmental and administrative functions. That is the way the preliminary point of law was expressed in the order of the master, but it has opened out into an investigation of whether a local authority can sue for libel at all.

Balcombe LJ, giving the leading judgement in the Court of Appeal, summarised the facts thus [1992] QB 770, 802:

"The facts in the case are fortunately refreshingly simple. In two issues of 'The Sunday Times' newspaper on 17 and 24 September 1989 there appeared articles concerning share deals involving the superannuation fund of the Derbyshire County Council. The articles in the issue of 17 September were headed 'Revealed: Socialist tycoon's deals with a Labour chief' and 'Bizarre deals of a council leader and the media tycoon:' that in the issue of 24 September was headed 'Council share deals under scrutiny.' The council leader was Mr David Melvyn Bookbinder; the 'media tycoon' was Mr Owen Oyston. It is unnecessary for the purposes of this judgement to set out in any detail the contents of these articles: it is sufficient to say that they question the propriety of certain investments made by the council of moneys in its superannuation fund, with Mr Bookbinder as the prime mover, in three deals with Mr Oyston or companies controlled by him. Excerpts from the articles giving the flavour of the allegations made will be found in the judgement at first instance... to which those interested may refer. The council is the 'administering authority' of its superannuation fund under the Superannuation Act 1972 and the Local Government Superannuation Regulations 1986 (SI 1986 No 24) made thereunder."

Following the publication actions of damages for libel were brought against the publishers of "The Sunday Times," its editor and the two journalists who wrote the articles, by Derbyshire County Council, Mr Bookbinder and Mr Oyston. Mr Oyston's action was settled by an apology and payment of damages and costs. The statements of claims in this action by the plaintiff and in that by Mr Bookbinder are for all practical purposes in identical terms. That of the plaintiff asserts in paragraph 6 that there were written and published "of and concerning the council and of and concerning the council in the way of its discharge of its responsibility for the investment and control of the superannuation fund" the words contained in the article of 17 September, and paragraph 8 makes a similar assertion in relation to the article of 24 September. Paragraph 9 states:

"By reason of the words published on 17 September 1989 and the words and graph published on 24 September 1989 the plaintiff council has been injured in its credit and reputation and has been brought into public scandal, odium and contempt, and has suffered loss and damage."

No special damage is pleaded. On 31 July 1991 French J refused an application by the plaintiff to amend the statement of claim so as to plead a certain specific item of special damage.

The preliminary point of law was tried at first instance before Morland J [1992] QB 770 who on 15 March 1991 decided it in favour of the plaintiff. However, on appeal by the defendants his judgement was reversed by the Court of Appeal (Balcombe, Ralph Gibson and Butler- Sloss LJJ) [1992] QB 770, on 19 February 1992. The plaintiff now appeals, with leave given in the Court of Appeal, to your Lordships' House.

There are only two reported cases in which an English local authority has sued for libel. The first is Manchester Corporation v Williams [1891] 1 QB 94, 63 LT 805. The defendant had written a letter to a newspaper alleging that "in the case of two, if not three, departments of our Manchester City Council, bribery and corruption have existed, and done their nefarious work." A Divisional Court consisting of Day J and Lawrance J held that the statement of claim disclosed no cause of action. The judgement of Day J in the Queen's Bench report is in these terms [1891] 1 QB 94, 96:

"This is an action brought by a municipal corporation to recover damages for what is alleged to be a libel on the corporation itself, as distinguished from its individual members or officials. The libel complained of consists of a charge of bribery and corruption. The question is whether such an action will lie. I think it will not. It is altogether unprecedented, and there is no principle on which it could be founded. The limits of a corporation's right of action for libel are those suggested by Pollock CB in the case which has been referred to. A corporation may sue for a libel affecting property, not for one merely affecting personal reputation. The present case falls within the latter class. There must, therefore, be judgement for the defendant."

Lawrance J said that he was of the same opinion.

The Law Times report contains a somewhat longer judgement of Day J in these terms, 63 LT 805, 806-807:

"This action is brought by the mayor, aldermen, and citizens of the city of Manchester to recover damages from the defendant in respect of that which is alleged by them to be a libel on the corporation. The alleged libel is contained in a letter written by the defendant to the editor of the 'Manchester Examiner and Times,' which charged, as alleged by the statement of claim, that bribery and corruption existed or had existed in three departments of the Manchester City Council, and that the plaintiffs were either parties thereto or culpably ignorant thereof, and that the said bribery and corruption prevailed to such an extent as to render necessary an inquiry by a parliamentary commission. Now it is for us to determine whether a corporation can bring such an action, and I must say that, to my mind, to allow such a thing would be wholly unprecedented and contrary to principle. A corporation may sue for a libel affecting property, not for one merely affecting personal reputation. This does not fall within the class of cases in respect of which a corporation can maintain an action, but does fall within the second class commented on by Pollock CB in his judgement in the case of the Metropolitan Saloon Omnibus Co Ltd v Hawkins, 4 H & N 87, with which I fully agree... [a quotation follows] The charge in the present case is one of bribery and corruption, of which a corporation cannot possibly be guilty, and therefore, in my opinion, this action will not lie."

It is likely that the Law Reports version of his judgement was one revised by Day J, in which he omitted the sentence which ends the Law Times report, so that the true and only ratio of the decision is that a corporation may sue for a libel affecting property, but not for one merely affecting personal reputation.

Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H & N 87 was an action by a company incorporated under the Joint Stock Companies Act 1856 (19 & 20 Vict c 47) in respect of a libel imputing to it insolvency, mismanagement and dishonest carrying on of its affairs. The Court of the Exchequer held the action to be maintainable. Pollock CB, in the passage referred to by Day J, said, at p90:

"That a corporation at common law can sue in respect of a libel there is no doubt. It would be monstrous if a corporation could maintain no action for slander of title through which they lost a great deal of money. It could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes. Nor could it sue in respect of a charge of corruption, for a corporation cannot be guilty of corruption, although the individuals composing it may. But it would be very odd if a corporation had no means of protecting itself against wrong; and if its property is injured by slander it has no means of redress except by action. Therefore it appears to me clear that a corporation at common law may maintain an action for a libel by which its property is injured."

In South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133 a newspaper had published an article alleging that the houses in which the company accommodated its colliers were in a highly insanitary state. The Court of Appeal held that the company was entitled to maintain an action for libel without proof of special damage, in respect that the libel was calculated to injure the company's reputation in the way of its business. Lord Esher MR said, at p 138:

"I have considered the case, and I have come to the conclusion that the law of libel is one and the same as to all plaintiffs; and that, in every action of libel, whether the statement complained of is, or is not, a libel, depends on the same question--viz, whether the jury are of opinion that what has been published with regard to the plaintiff would tend in the minds of people of ordinary sense to bring the plaintiff into contempt, hatred, or ridicule, or to injure his character. The question is really the same by whomsoever the action is brought--whether by a person, a firm, or a company. But though the law is the same, the application of it is, no doubt, different with regard to different kinds of plaintiffs. There are statements which, with regard to some plaintiffs, would undoubtedly constitute a libel, but which, if published of another kind of plaintiffs, would not have the same effect."

He went on to say that certain statements might have the same effect, whether made with regard to a person, or a firm, or a company, for example statements with regard to conduct of a business, and having elaborated on the question whether or not a particular statement might reflect on the manner of conduct of a business, continued, at p139:

"With regard to a firm or a company, it is impossible to lay down an exhaustive rule as to what would be a libel on them. But the same rule is applicable to a statement made with regard to them. Statements may be made with regard to their mode of carrying on business, such as to lead people of ordinary sense to the opinion that they conduct their business badly and inefficiently. If so, the law will be the same in their case as in that of an individual, and the statement will be libellous. Then, if the case be one of libel--whether on a person, a firm, or a company--the law is that the damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case."

In National Union of General and Municipal Workers v Gillian [1946] KB 81 the Court of Appeal held that a trade union could, in general, maintain an action in tort, and that an action for libel was no exception to that rule. No detailed consideration was given to the nature of the statements in respect of which the action might lie, though Scott LJ, at p87, referred to the disintegration of a trade union which might result from a libel, and Uthwatt J, at p88, said that he saw no reason why a non-trading corporation should not have the same rights as a trading corporation as respects imputations on the conduct by it of its activities.

The second case involving proceedings by a local authority is Bognor Regis Urban District Council v Campion [1972] 2 QB 169, a decision of Browne J. Mr Campion had distributed at a meeting of a ratepayers' association a leaflet savagely attacking the council, which sued him for libel. At the trial Mr Campion conducted his own case without the assistance of solicitors or counsel. Browne J found in favour of the council and awarded it damages of GBP2,000. At p173, he stated his intention to apply a principle to be found in National Union of General and Municipal Workers v Gillian [1946] KB 81, from which he quoted extensively in the following pages. He continued [1972] 2 QB 169, 175:

"Just as a trading company has a trading reputation which it is entitled to protect by bringing an action for defamation, so in my view the plaintiffs as a local government corporation have a 'governing' reputation which they are equally entitled to protect in the same way--of course, bearing in mind the vital distinction between defamation of the corporation as such and defamation of its individual officers or members. I entirely accept the statement made in Gatley on Libel and Slander, 6th Edn (1967), p409, para 890: 'A corporation or company cannot maintain an action of libel or slander for any words which reflect, not upon itself, but solely upon its individual officers or members.' Then there is a quotation: 'To merely attack or challenge the rectitude of the officers or members of a corporation, and hold them or either of them up to scorn, hatred, contempt, or obloquy for acts done in their official capacity, or which would render them liable to criminal prosecution, does not give the corporation a right of action for libel.' I stress the words 'solely' and 'merely' in those passages. The quotation given in Gatley there is from a United States case, Warner v Ingersoll (1907) 157 Fed R 311."

Browne J then proceeded to consider Manchester Corporation v Williams, and after quoting from the judgement of Day J in the Law Times Report, 63 LT 805, 806 -807, said [1972] 2 QB 169, 177:

"Day J seems to put his judgement on two grounds; first, that a corporation may sue for a libel affecting property and not for one merely affecting personal reputation. If this was ever right, it has in my view been overruled by South Hetton Coal Co v North-Eastern News Association Ltd [1894] 1 QB 133, 134, 135 (where substantially this argument was used by the defendants) and by National Union of General and Municipal Workers v Gillian (where the Manchester Corporation case [1891] 1 QB 94 was cited). The other ground seems to have been that a corporation cannot be guilty of corruption and therefore it cannot be defamatory to say or write that it has been guilty of corruption. This was based on the obiter dictum of Pollock CB in Metropolitan Saloon Omnibus Co v Hawkins (1859) 4 H & N 87 and was repeated later by Lopes LJ in South Hetton Coal Co v North-Eastern News Association Ltd [1894] 1 QB 133, 141. The Manchester Corporation case is severely criticised in Spencer Bower on Actionable Defamation (1908), pp 279 and 280; in Fraser on Libel and Slander, 7th Edn (1936), pp 89 and 90; and by Oliver J in Willis v Brooks [1947] 1 All ER 191 where he said, at p192, that after reading the National Union of General and Municipal Workers case he agreed with the editors of Fraser, who say, at p 90: 'It is respectfully submitted that the above statement of the law by Day J... is unsound in principle and would not be upheld in the Court of Appeal.' Oliver J in Willis v Brooks [1947] 1 All ER 191, 193 said: 'Counsel for the defendants'--who incidentally were Sir Valentine Holmes and Mr Milmo--'did not seriously contend that an action for libel imputing something very like corruption, as in this case, would not lie in any circumstances at the suit of a trade union,' and he awarded the plaintiffs GBP 500 damages. As I have said, the Manchester Corporation case was cited in the National Union of General and Municipal Workers case and the libel in that case seems to have imputed among other things something very like corruption."

Finally, he said, at p178:

"The actual decision in the Manchester Corporation case can perhaps be supported, as Mr Waterhouse suggested, on the argument that the libel there was not capable of referring to a corporation consisting (as the plaintiffs did) of the mayor, aldermen and citizens, and not, as here, of the chairman and councillors. I think that that case is distinguishable from this on that ground, and also on the ground that in my view none of the statements in the leaflet in this case actually impute corruption. But I hope that the Court of Appeal will soon have occasion to consider the Manchester Corporation case."

It is to be observed that Browne J did not give any consideration to the question whether a local authority, or any other body exercising governmental functions, might not be in a special position as regards the right to take proceedings for defamation. The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co case [1894] 1 QB 133 would appear to be an instance of the latter kind, and not, as suggested by Browne J, an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union's ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions.

There are, however, features of a local authority which may be regarded as distinguishing it from other types of corporation, whether trading or non-trading. The most important of these features is that it is a governmental body. Further, it is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech. In City of Chicago v Tribune Co (1923) 139 NE 86 the Supreme Court of Illinois held that the city could not maintain an action of damages for libel. Thompson CJ said, at p90:

"The fundamental right of freedom of speech is involved in this litigation, and not merely the right of liberty of the press. If this action can be maintained against a newspaper it can be maintained against every private citizen who ventures to criticise the ministers who are temporarily conducting the affairs of his government. Where any person by speech or writing seeks to persuade others to violate existing law or to overthrow by force or other unlawful means the existing government, he may be punished... but all other utterances or publications against the government must be considered absolutely privileged. While in the early history of the struggle for freedom of speech the restrictions were enforced by criminal prosecutions, it is clear that a civil action is as great, if not a greater, restriction than a criminal prosecution. If the right to criticise the government is a privilege which, with the exceptions above enumerated, cannot be restricted, then all civil as well as criminal actions are forbidden. A despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions..."

After giving a number of reasons for this, he said, at p90:

"It follows, therefore, that every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely."

These propositions were endorsed by the Supreme Court of the United States in New York Times Co v Sullivan (1964) 376 US 254, 277. While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as "the chilling effect" induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public. In Hector v Attorney-General of Antigua and Barbuda [1990] 2 AC 312 the Judicial Committee of the Privy Council held that a statutory provision which made the printing or distribution of any false statement likely to undermine public confidence in the conduct of public affairs a criminal offence contravened the provisions of the constitution protecting freedom of speech. Lord Bridge of Harwich said, at p318:

"In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office. In the light of these considerations their Lordships cannot help viewing a statutory provision which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion."

It is of some significance to observe that a number of departments of central government in the United Kingdom are statutorily created corporations, including the Secretaries of State for Defence, Education and Science, Energy, Environment and Social Services. If a local authority can sue for libel there would appear to be no reason in logic for holding that any of these departments (apart from two which are made corporations only for the purpose of holding land) was not also entitled to sue. But as is shown by the decision in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, a case concerned with confidentiality, there are rights available to private citizens which institutions of central government are not in a position to exercise unless they can show that it is the public interest to do so. The same applies, in my opinion, to local authorities. In both cases I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech. In Die Spoorbond v South African Railways, 1946 AD 999 the Supreme Court of South Africa held that the South African Railways and Harbours, a governmental department of the Union of South Africa, was not entitled to maintain an action for defamation in respect of a publication alleged to have injured its reputation as the authority responsible for running the railways. Schreiner JA said, at pp 1012-1013:

"I am prepared to assume, for the purposes of the present argument, that the Crown may, at least in so far as it takes part in trading in competition with its subjects, enjoy a reputation, damage to which could be calculated in money. On that assumption there is certainly force in the contention that it would be unfair to deny to the Crown the weapon, an action for damages for defamation, which is most feared by calumniators. Nevertheless it seems to me that considerations of fairness and convenience are, on balance, distinctly against the recognition of a right in the Crown to sue the subject in a defamation action to protect that reputation. The normal means by which the Crown protects itself against attacks upon its management of the country's affairs is political action and not litigation, and it would, I think, be unfortunate if that practice were altered. At present certain kinds of criticism of those who manage the state's affairs may lead to criminal prosecutions, while if the criticism consists of defamatory utterances against individual servants of the state actions for defamation will lie at their suit. But subject to the risk of these sanctions and to the possible further risk, to which reference will presently be made, of being sued by the Crown for injurious falsehood, any subject is free to express his opinion upon the management of the country's affairs without fear of legal consequences. I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the state, derived from the state's subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country. Such actions could not, I think, be confined to those brought by the railways administration for criticism of the running of the railways. Quite a number of government departments, as appeared in the course of the argument, indulge in some form of trading on a greater or a lesser scale. Moreover, the government, when it raises loans, is interested in the good or bad reputation that it may enjoy among possible subscribers to such loans. It would be difficult to assign any limits to the Crown's right to sue for defamation once its right in any case were recognised."

These observations may properly be regarded as no less applicable to a local authority than to a department of central government. In the same case Watermeyer CJ, at p1009, observed that the reputation of the Crown might fairly be regarded as distinct from that of the group of individuals temporarily responsible for the management of the railways on its behalf. In the case of a local authority temporarily under the control of one political party or another it is difficult to say that the local authority as such has any reputation of its own. Reputation in the eyes of the public is more likely to attach itself to the controlling political party, and with a change in that party the reputation itself will change. A publication attacking the activities of the authority will necessarily be an attack on the body of councillors which represents the controlling party, or on the executives who carry on the day to day management of its affairs. If the individual reputation of any of these is wrongly impaired by the publication any of these can himself bring proceedings for defamation. Further, it is open to the controlling body to defend itself by public utterances and in debate in the council chamber.

The conclusion must be, in my opinion, that under the common law of England a local authority does not have the right to maintain an action of damages for defamation. That was the conclusion reached by the Court of Appeal, which did so principally by reference to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969), to which the United Kingdom has adhered but which has not been enacted into domestic law. Article 10 is in these terms:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

As regards the words "necessary in a democratic society" in connection with the restrictions on the right to freedom of expression which may properly be prescribed by law, the jurisprudence of the European Court of Human Rights has established that "necessary" requires the existence of a pressing social need, and that the restrictions should be no more than is proportionate to the legitimate aim pursued. The domestic courts have "a margin of appreciation" based upon local knowledge of the needs of the society to which they belong: Sunday Times v United Kingdom (1979) 2 EHRR 245; Barthold v Germany (1985) 7 EHRR 383 and Lingens v Austria (1986) 8 EHRR 407, 418. The Court of Appeal approached the matter upon the basis that the law of England was uncertain upon the issue lying at the heart of the case, having regard in particular to the conflicting decisions in Manchester Corporation v Williams [1891] 1 QB 94 and Bognor Regis Urban District Council v Campion [1972] 2 QB 169 and to the absence of any relevant decision in the Court of Appeal or in this House. In that situation it was appropriate to have regard to the Convention. Balcombe LJ referred in this connection to Reg v Secretary of State for the Home Department, Ex parte Brind [1991] 1 AC 696; Attorney-General v Guardian Newspapers Ltd [1987 ] 1 WLR 1248; In re W (A Minor) (Wardship: Restrictions on Publication) [1992] 1 WLR 100; and Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109. Having examined other authorities he concluded, having carried out the balancing exercise requisite for purposes of article 10 of the Convention, that there was no pressing social need that a corporate public authority should have the right to sue in defamation for the protection of its reputation. That must certainly be true considering that in the past hundred years there are only two known instances of a defamation action by a local authority. He considered that the right to sue for malicious falsehood gave such a body all the protection which was necessary. Similar views were expressed by Ralph Gibson and Butler-Sloss LJJ [1992] QB 770, 824, 834, who observed that the law of criminal libel might be available in suitable cases, to afford additional protection. All three Lords Justices also alluded to the consideration that the publication of defamatory matter concerning a local authority was likely to reflect also on individual councillors or officers, and that the prospect of actions for libel at their instance also afforded some protection to the local authority.

My Lords, I have reached my conclusion upon the common law of England without finding any need to rely upon the European Convention. My noble and learned friend, Lord Goff of Chieveley, in Attorney- General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 283-284, expressed the opinion that in the field of freedom of speech there was no difference in principle between English law on the subject and article 10 of the Convention. I agree, and can only add that I find it satisfactory to be able to conclude that the common law of England is consistent with the obligations assumed by the Crown under the Treaty in this particular field.

For these reasons I would dismiss the appeal. It follows that Bognor Regis Urban District Council v Campion [1972] 2 QB 169 was wrongly decided and should be overruled.

Lord Griffiths: My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Keith of Kinkel, and for the reasons he gives, I, too, would dismiss the appeal.

Lord Goff of Chieveley: My Lords, I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Keith of Kinkel, and for the reasons he gives, I, too, would dismiss the appeal.

Lord Browne-Wilkinson: My Lords, I, too, would dismiss the appeal for the reasons given in the speech of my noble and learned friend, Lord Keith of Kinkel.

Lord Woolf: My Lords, I, too, would dismiss the appeal for the reasons given in the speech of my noble and learned friend, Lord Keith of Kinkel.

Appeal dismissed with costs.

Solicitors: Kingsford Stacey for Solicitor, Derbyshire County Council; Biddle Co

The following cases are referred to in the opinion of Lord Keith of Kinkel:

Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248; [1987] 3 All ER 316, H.L.(E.)
Attorney-General v Guardian Newspapers Ltd (No. 2) [1990] 1 AC 109; [1988] 3 WLR 776; [1988] 3 All ER 545, H.L.(E.)
Barthold v Germany (1985) 7 E.H.R.R. 383
Bognor Regis Urban District Council v Campion [1972] 2 QB 169; [1972] 2 WLR 983; [1972] 2 All ER 61
Chicago (City of) v Tribune Co (1923) 139 N.E. 86
Die Spoorbond v South African Railways, 1946 A.D. 999
Hector v Attorney-General for Antigua and Barbuda [1990] 2 AC 312; [1990] 2 WLR 606; [1990] 2 All ER 103, P.C.
Lingens v Austria (1986) 8 E.H.R.R. 407
Manchester Corporation v Williams [1891] 1 QB 94; 63 L.T. 805, D.C.
Metropolitan Saloon Omnibus Co Ltd v Hawkins (1859) 4 H. N. 87
National Union of General and Municipal Workers v Gillian [1946] KB 81; [1945] 2 All ER 593, C.A.
New York Times Co v Sullivan (1964) 376 U.S. 254
Reg v Secretary of State for the Home Department, Ex parte Brind [1991] 1 AC 696; [1991] 2 WLR 588; [1991] 1 All ER 720, H.L.(E.)
South Hetton Coal Co Ltd v North-Eastern News Association Ltd [1894] 1 QB 133, C.A.
Sunday Times v United Kingdom (1979) 2 E.H.R.R. 245
W. (A Minor) (Wardship: Restrictions on Publication), In re [1992] 1 WLR 100; [1992] 1 All ER 794, C.A.

The following additional cases were cited in argument:

Alberta Legislation, In re [1938] 2 D.L.R. 81
Argus Printing and Publishing Co Ltd v Inkatha Freedom Party, 1992 (3) S.A. 579
Attorney-General v Antigua Times Ltd [1976] AC 16; [1975] 3 WLR 232; [1975] 3 All ER 81, P.C.
Australia Capital Television Pty. Ltd v Commonwealth of Australia (No. 2) (1992) 108 A.L.R. 577
Austrian Communes, Sixteen v Austria (1974) 46 Eur.Comm.H.R.Dec. 118
Blackshaw v Lord [1984] QB 1; [1983] 3 WLR 283; [1983] 2 All ER 311, C.A.
Castells v Spain (1992) 14 E.H.R.R. 445
Church of Scientology Inc. v Anderson [1980] W.A.R. 71
Cox v Feeny (1863) 4 F. F. 13
Dennis v United States of America (1951) 341 U.S. 494
Dudgeon v United Kingdom (1981) 4 E.H.R.R. 149
Edmonton Journal v Attorney-General for Alberta (1989) 64 D.L.R. (4th) 577
Electrical, Electronic, Telecommunication and Plumbing Union v Times Newspapers Ltd [1980] QB 585; [1980] 3 WLR 98; [1980] 1 All ER 1097
Fielding v Variety Incorporated [1967] 2 QB 841; [1967] 3 WLR 415; [1967] 2 All ER 497, C.A.
Foster v British Gas Plc. [1991] 2 AC 306; [1991] 2 WLR 1075; [1991] 2 All ER 705, H.L.(E.)
Hoechst A.G. v Commission of the European Communities (Case 46/87R) [1987] E.C.R. 1549, E.C.J.
Le Fanu v Malcomson (1848) 1 H.L.Cas. 637, H.L.(E.)
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15, H.L.(E.)
Nationwide News Pty. Ltd v Wills (1992) 108 A.L.R. 681
Oberschlick v Austria, 23 May 1991, Publications of the European Court of Human Rights, Series A No. 204
Prince George (City of) v British Columbia Television System Ltd (1978) 85 D.L.R. (3d) 755; (1979) 95 D.L.R. (3d) 577
Reg v Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury [1991] 1 QB 429; [1990] 3 WLR 986; [1991] 1 All ER 306, D.C.
Reg v Independent Television Commission, Ex parte T.S.W. (Broadcasting) Ltd, The Times, 30 March 1992, H.L.(E.)
Reg v Wells Street Stipendiary Magistrate, Ex parte Deakin [1980] AC 477; [1979] 2 WLR 665; [1979] 2 All ER 497, H.L.(E.)
Retail, Wholesale Department Store Union, Local 850 v Dolphin Delivery Ltd (1986) 33 D.L.R. (4th) 174
Silkin v Beaverbrook Newspapers Ltd [1958] 1 WLR 743; [1958] 2 All ER 516
Sunday Times v United Kingdom (No. 2) (1991) 14 E.H.R.R. 229
Te Runanga O Wharekauri Rekohu Inc. v Attorney-General (unreported), 3 November 1992, New Zealand
Telnikoff v Matusevitch [1992] 2 AC 343; [1991] 3 WLR 952; [1991] 4 All ER 817, H.L.(E.)
Times Newspapers Ltd v United Kingdom (Application No. 14631/89) (unreported), 5 March 1990, E.C.H.R.
Webb v Times Publishing Co Ltd [1960] 2 QB 535; [1960] 3 WLR 352; [1960] 2 All ER 789