3PLR – D & L CATERERS LTD AND JACKSON V. D’ANJOU
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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D & L CATERERS LTD AND JACKSON
V.
D’ANJOU
[1945] 1 ALL E.R. 563
COURT OF APPEAL
23 MARCH 1945
CITATIONS
BEFORE THEIR LORDSHIPS:
LORD GODDARD
MACKINNON AND DU PARCQ LJJ
REPRESENTATION
T F Davis for the appellant.
N L Macaskie KC, and Robert Fortune for the respondents.
Solicitors: E C Randall (for the appellant); B A Woolf & Co (for the respondents).
F Guttman Esq Barrister.
MAIN ISSUES
TORTS AND PERSONAL INJURY:- Defamation – Libel and Slander – Defamatory statements relating to company’s business – Limited liability company – Whether slander of company actionable without proof of actual damage
TORTS AND PERSONAL INJURY:- Defamation – Slander – Rule that oral defamation is not actionable without proof of special damage – Cases in which the law implies damage – Oral defamation in respect of a man’s business – Whether company is entitled to an action just as much as a private individual thereto
TORTS AND PERSONAL INJURY:- Defamation – Defence of justification – Need to plead same specifically – Whether can be substituted by facts elicited during cross-examination as to bad character – Whether evidence of general bad reputation only and not evidence of specific instances is admissible to show that in certain specific matters the plaintiff has been convicted of or has done that which is dishonest or wrong
CORPORATE AND COMPANY LAW:- Company or corporation – Defamation of business – Range of actionable causes of action in defamation applicable to corporate body – Whether narrow than that applicable individuals – Defamation related to company’s business – How proved
PRACTICE AND PROCEDURE:- Justification of slander – Where not pleaded – Notice given to call evidence in mitigation of damages – Whether cross-examination on specific instances of misconduct admissible – Evidence of general bad reputation only admissible – RSC, Ord 36, r 37.
SUMMARY OF FACTS AND JUDGMENT
On 27 October 1943, and on 3 November 1943, the appellant made certain statements to one L, alleging that the respondent company and its managing director J were conducting a restaurant business illegally and in contravention of the Defence of the Realm Regulations, and also that the respondent J was taking part personally in a criminal course of conduct punishable by imprisonment. It was found that the statements made on the two occasions were slanders on the respondents published by the appellant. The respondents obtained damages and an injunction against the appellant in the lower court. On appeal, it was contended on behalf of the appellant (i) that the statements did not bear a defamatory meaning;(ii) that without proof of actual damage resulting from the publication of defamatory statements, a limited liability company could not sue for slander even if it reflected on the company’s business;(iii) that the judge was wrong in not allowing the cross-examination of the respondent J as to specific facts in mitigation of damages, as the questions were for the purpose of showing the general bad reputation of the respondent company and the respondent J:—
Held –(i) the statements published by the appellant were defamatory.
(ii) a limited liability company could sue for slander without proof of actual damage where the slander related to its trade or business because in such a case the law implied the existence of damage to found the action.
South Hetton Coal Co v North-Eastern News Assocn extended.
(iii) in actions for defamation, cross-examination as to credit was admissible in the same way as in any other action; but in order to mitigate damages, evidence of specific instances of misconduct could not be given, although evidence of a generally bad reputation was admissible. Therefore the judge was right in ruling against the cross-examination.
Scott v Sampson, and Hobbs v Tinling (C T.)& Co Ltd Hobbs v Nottingham Journal Ltd applied.
The court here affirms the decision of Stable J, that on the question of slander relating to the conduct of business the law presumes special damage, and it is, therefore, irrelevant whether the slander is spoken of an individual or a limited company. In the words of Lord Sumner in Jones v Jones [1916] 2 AC 481),”the classification is one of words, not of persons.” In the court below, Stable J, held also, that a company may sue without proof of special damage for slander imputing a criminal offence punishable by imprisonment, his view being that the exception to the rule requiring proof of special damage applies to the type of crime and not to the “person” to whom it is imputed. The Court of Appeal, however, hold that a discussion of this point is unnecessary for the purpose of their decision. On the practice point, it has been held that in cases of defamation it is not permissible to give evidence of specific instances in order to show bad reputation. Here there was no plea of justification, and it is held, applying this principle, that specific instances may not be put in cross-examination in order to get the facts in in mitigation of damages, where the circumstances if true would amount to justification although notice had been given of intention to call evidence in mitigation of damages. As to defamatory statements concerning a company’s business, see Halsbury Hailsham Edn, Vol 20, pp 390–391, para 473; and for cases, see Digest Vol 9, p 648, Nos 4285–4289.As to RSC Ord 36, r 37, see yearly practice of the supreme court, p 618.
Cases referred to in judgment
South Hetton Coal Co v North-Eastern News Assocn [1894] 1 QB 133, 9 Digest 648, 4286, 63 LJQB 293, 69 LT 844.
Scott v Sampson (1882), 8 QBD 491, Digest Practice 16, 127, 51 LJQB 380, 46 LT 412.
Hobbs v Tinling (C T)& Co Ltd Hobbs v Nottingham Journal Ltd [1929] 2 KB 1, 2, 17–18, Digest Practice 30, 249, 98 LJKB 421, 141 LT 121.
Metropolitan Saloon Omnibus Co v Hawkins (1859), 4 H & N 87, 9 Digest 648, 4285, 28 LJEx 201, 32 LTOS 283.
Appeal
Appeal by the defendant from a decision of Stable J dated 16 January 1945. The facts are fully set out in the judgment of Lord Goddard.
MAIN JUDGMENT
23 March 1945. The following judgments were delivered.
LORD GODDARD.
This is an appeal in an action brought by a limited company which owns a very well-known West End restaurant called the Bagatelle, and by a second plaintiff, Jackson who is the managing director of the plaintiff company. The defendant is a gentleman who was formerly closely connected with the Bagatelle restaurant; and apparently his relations with Jackson have been the subject of considerable trouble because two previous actions were brought by Jackson for slander, although they were not pursued. In one of them Jackson paid the defendant’s costs, and in both cases, I think, undertakings were given not to repeat the slanders. Just as it was thought, perhaps wrongly, that he had repeated the first one, now it seems that he certainly did utter some slanders. The words that the judge finds that he used are these:
‘I advise you [that is Mr. Levene, to whom he was speaking] to disassociate yourself from Mr. Leonard Jackson and the rest of them. When Mr. Jackson has a few brinks he talks a good deal and says how he can get supplies of food or otherwise for the restaurant. The restaurant is being watched. It is better to lose your money that way than have to pay a fine of £500. Get out of the Bagatelle Restaurant.’
The second allegation is that, after a conversation about some experiences with the Customs and Excise officials, which had nothing to do with the Bagatelle restaurant, he said:
‘I am in a very strong position with the Ministry of Food. The restaurant is being watched. My advice is, get out and stop supplying for 3 or 4 months. Jackson is no good; his word means nothing to him. Get out of the Bagatelle.’
In those circumstances, the judge having found that those words were used, it seems to me that it is impossible to ask this court to say either that those words were not capable of a defamatory meaning or that they were not defamatory. Of course they were defamatory; they were meant to be defamatory; and they are saying, as I read them, that the company and Jackson are carrying on the Bagatelle restaurant in a questionable manner, calling for the specific attention of the Ministry of Food, and obviously implying that the rationing orders made under the Defence of the Realm Regulations have been broken, and I think also indicating that Jackson is buying food in the black market, as it is commonly called. I do not think that anybody with a modicum of common sense could have any doubt that that is so. That is clearly and obviously defamatory and actionable with regard to Jackson. So too is it defamatory and actionable with regard to the company, although it seems curious that this precise point does not ever seem to have been decided. In the well known case South Hetton Coal Co v North Eastern News Assocn it was argued that a limited company could not bring an action for defamation. It is true that in that case it was written defamation. The court held that a company or a corporation could sue for defamation which related to its business. For instance, if you said of a company, “It is a murderer,” or if you said of a company, “It is a forger,” I have no doubt the company could not bring an action because a company cannot forge and a company cannot murder. But in the ordinary way it would not be actionable to write something of a company which might be actionable in the case of individuals unless what is written reflects upon the company in the way of its business.
Oral defamation, as a general proposition, is not actionable without proof of special damage. But there are certain cases in which the law implies damage, and one of those is oral defamation in respect of a man’s business. Therefore, I can see no reason at all why, if you orally defame a company in the way of its business, the company should not have an action just as much as a private individual because undoubtedly it could have an action for any defamation if it could prove damage. I will not say that, because I think the same limitation and the same principles must apply to slander as to libel in respect of a limited company, that is to say, the slander must relate to the company’s business. If it does, I see no principle upon which any distinction can be drawn between written defamation and oral defamation. It seems to me that an action lies at the suit of a company. I do not think that it is necessary to discuss the question as to whether or not the company could maintain an action on the ground that it has been charged with a criminal offence. Jackson obviously could, if the words bear that meaning, as I think they do. These two matters seem to me as clear as daylight; and I think, therefore, that the judgment so far was perfectly right.
Another point is raised. There was no plea of justification in this case. In substance what was pleaded was that the words were not defamatory and were not actionable. But at the trial junior counsel for the defendant sought to cross-examine in respect of matters of which notice had been given that the defendant intended to call evidence in mitigation of damages and the judge stopped him. The notice, which was served under RSC, Ord 36, r 37, stated that the defendant intended to give evidence that the plaintiff company was convicted at Bow Street Police Court on 30 March 1944, and find £220 and ordered to pay costs for failing to make entries in the stock book of purchases of spirits and for buying spirits from the plaintiff Jackson who had no authority to sell or licence to deal in spirits; and that the plaintiff Jackson was on the same date fined £15 and ordered to pay costs for dealing wholesale in spirits without a licence. Then it stated that certain other servants of the company were also prosecuted on the same day; and that in the following week, on 6 April 1944, the plaintiff company was at Bow Street Police Court fined a total of £523 and ordered to pay costs for selling lager beer at prices exceeding the maximum price. That was a statement that after the uttering of the slander the plaintiff company was twice convicted and the individual plaintiff was once convicted—that the plaintiff company was convicted of a Customs offence, failing to make entries in the stock book for the purchase of spirits and also for selling lager beer at over the maximum price. It is said that the judge was wrong in stopping the cross-examination when those matters were being put to the plaintiff, Jackson; and I also gather that, in view of the judge’s ruling, counsel then for the defendant, did not tender the evidence in support of the matters which were set out in the notice. I think it is said that the judge had clearly indicated that the evidence could not be given, and, therefore, I think there was no necessity for counsel for the defendant actually to tender the evidence. Had I thought that the evidence was admissible, speaking for myself, after the judge’s very clear intimation when objection was taken to the cross-examination, I should have thought it was necessary for counsel then for the defendant formally to tender the evidence, and I should not decide the question on the ground that he had not formally tendered it.
The law with regard to cross-examination on such matters as this in libel actions is, I think, established, and the law as to the right to give evidence in mitigation in actions of defamation is also clear. Whether the law is wholly satisfactory it is not for me to say; we have to take the law as we find it, and certainly for a great many years it appears that the law has been this. You can cross-examine a plaintiff in a libel action in exactly the same way that you can cross-examine a plaintiff in any other action: therefore, if you want to put questions to him including questions as to whether he has been convicted of offences, for the purpose of destroying his credit, you can do so. If a plaintiff goes into the witness box and poses, for instance, as a man of unblemished reputation, and not only a man of unblemished reputation but a man who ought to be believed, you can put to him any questions you like to show that he is in fact a rascal whom the court or the jury ought not to believe—that is to say, to use a common expression, you can cross-examine to credit. But you are bound by his answers, and if he denies some matter you cannot call evidence to contradict it. It has always been said that you cannot use the fact that you have given notice to call evidence in mitigation of damages in order to cross-examine a person, in effect, to set up a justification. Now, counsel for the appellant says, “I do not seek to do that because I could not justify, but I do say that I could use this to destroy the plaintiff’s reputation.” It has been laid down both in Scott v Sampson and Hobbs v Tinling that you can only give evidence of general bad reputation, that you cannot give evidence of specific instances to show that in certain specific matters the plaintiff has been convicted of or has done that which is dishonest or wrong, although you may give evidence to show that he is a man who is generally known as a person of bad reputation.
It seems to me (and it was not contended otherwise) that the object of attempting in this case to put the conviction to the plaintiff was not on a matter of credit, that it was not to test his credibility or to endeavour to destroy his credibility; it was to get in these facts by cross-examination in mitigation of damage.
I think the judge applied the right rules here. I think it is equally clear that counsel for the successful plaintiff in Hobbs v Tinling felt too that he was in a difficulty about it, and I think he was justified in so feeling. I think the judge gave a right decision. He did not give large damages in this case. Considering the nature of the libel, he might have given very heavy damages, but he did not. I think, therefore, that there is no fault to find with his judgment, and that the appeal must be dismissed with costs.
The judge gave the plaintiff Jackson £2 and the plaintiff company £4 in respect of breaches of the undertaking to which I have referred, which had been given when it was alleged that there had been previous slanders. In my judgment, that was wrong because this action was not brought for breach of contract and there is no allegation of breach of contract. However, we dismiss the appeal, and we direct that the order be amended by substituting £50 in each case for £52 and £54. I do not know how it came to be done below but there seems to have been no protest about it, as the matter was not raised. It is quite clear that neither on the writ nor in the statement of claim is there any allegation that the action was brought for breach of contract. I think the judge acted perfectly properly in awarding that small sum. It makes no difference to the merits of the appeal.
MacKinnon LJ: I agree, and I do not think it necessary to add anything.
DU PARCQ LJ. I agree. It is not necessary to decide whether the judge was right in the view that:
‘… a limited company [I am reading his words] without proof of actual damage can sue for a defamatory spoken word imputing the commission of a criminal offence for which, if it were a natural person, it could be sentenced to a term of imprisonment. I wish to say nothing one way or the other about that but to reserve my opinion upon it. I have no doubt, however, that a slander of a company in the way of its business is actionable without proof of special damage. I think that that follows logically from the earlier decisions. The question whether a corporation could bring an action for libel in any circumstances was dealt with as early as 1859, and it was then held, in Metropolitan Saloon Omnibus Co v Hawkins that it could maintain an action for libel by which its property was injured. At that time in that case it was not necessary to decide whether or not proof of special damage was necessary because special damage there was alleged. Later it was established in the South Hetton Coal Co. case that in the case of a libel it is not necessary for the company to prove special damage. A company cannot sue either for libel or for slander unless it is defamed in the way of its business. In the case of a libel it is not necessary to prove special damage, and there can be no reason in principle why in the case of a slander it should have to prove special damage. It is quite true that the judges in the South Hetton Coal Co case do not specifically say that the rule is the same for slander as for libel. That was because it was unnecessary to decide that point as they were dealing with an action for libel. As I say, it occurs to me that for this particular purpose libel and slander in the case of a company are indistinguishable. I entirely agree with all that my Lord has said on the other points.’
Appeal dismissed with costs.
