1883 NOV. 5
12 Q.B.D. 94
BEFORE THEIR LORDSHIPS
GROVE and SMITH, JJ.
Houghton, for the defendant
Solicitor for plaintiff: S. B. Somerville, for T. Phillips, Llandovery.
Solicitor for defendant: Chamberlayne.
TORT AND PERSONAL INJURY – DEFAMATION:- Slander – Particulars of Persons to whom Slander was uttered – Relevant considerations
PRACTICE AND PROCEDURE:- Defamation proceedings – Whether defendant entitled to particulars of persons to whom alleged slander was uttered
HISTORY AND SUMMARY OF FACTS
A statement of claim alleged that T., “at the request and by the direction of the defendant, falsely and maliciously spoke and published of and concerning the plaintiff” certain slanderous words, which were set out:-
Held, that the defendant was entitled to particulars of the persons to whom the words were uttered.
MOTION by way of appeal from an order of Day, J., at chambers.
In an action for libel and slander the statement of claim alleged (inter alia) that on the 17th of May and the 26th of June, 1881, one C. Timson, “at the request and by the direction of the defendant,” falsely and maliciously spoke and published of the plaintiff, and in relation to his business, certain slanderous words which were set out; and that on the 21st of June, 1882, and the 22nd of March, 1883, C. Timson, at the request and by the direction of the defendant, falsely and maliciously spoke and published of the plaintiff, and in relation to his business, other slanderous words, which were also set out, “to a certain customer of the plaintiff in the way
of his business.”
Day, J., affirmed the order of a master that the plaintiff should deliver to the defendant particulars of the persons to whom the slanders alleged in the statement of claim were uttered.
The plaintiff appealed.
This case is within the principle of Eade v. Jacobs. (1) The defendant is attempting to get particulars of the evidence which the plaintiff proposes to adduce at the trial.
[He also cited Benbow v. Low. (2)]
Houghton, for the defendant:-
The decision in Eade v. Jacobs (1)was not intended to apply to actions of slander, where the publication to others is an essential part of the cause of action. The
practice has always been to allow these particulars.
(1) 3 Ex. D. 335.
(2) 13 Ch. D. 553.
[He also referred to Attorney General v. Gaskill. (1)
In this case if the slanders complained of had been alleged to have been uttered by the defendant himself I should have had much doubt whether he could compel the plaintiff to give the particulars asked for. I am not satisfied that the modern practice has been to order particulars of the names of the persons to whom the slanders were uttered. Where the defendant is alleged to have uttered them himself he may be supposed to know to whom he did utter them. In old days it was no doubt the rule that where the plaintiff claimed special damage by reason of the slander having been uttered to particular persons, he must give the names of those persons. However I give no opinion upon the question which would arise if the defendant was accused of having uttered the words himself. But the present is a different and an unusual case. The words are said to have been uttered by Timson “at the request and by the direction of the defendant,” and particulars are asked of the persons to whom Timson uttered them. The defendant cannot tell where or under what circumstances Timson uttered the words, and may therefore come to trial in entire ignorance of the persons to whom they were uttered, and unprepared to meet the case made against him. He might not be able to call Timson, and could not meet the plaintiff’s claim for damages – whether general or special – without knowing to whom Timson was alleged to have uttered the slanders complained of. This case, therefore, is unlike any cited before us in argument. I am of opinion that
the defendant is entitled to the particulars he asks for and that the order of the judge at chambers should be affirmed.
SMITH, J. This is certainly a peculiar case. The plaintiff does not allege that the defendant himself slandered him, but says that the defendant delegated to another to utter the slanderous words. Some of those words are alleged to have been uttered in 1881 – the action having been brought in 1883. Under these circumstances the defendant asks for particulars of the persons to
whom Timson is alleged to have uttered the words. He seeks in effect to know
the case against which he has to defend himself at the trial. Apart from
authority I should think the defendant’s demand a very reasonable one. No
authority has been cited with respect to particulars which governs the present case. In Wingard v. Cox (1) Denman, J., refused to order the plaintiff to give particulars of the names of persons mentioned in the statement of claim who were passing in the street when the alleged slander was uttered. There the defendant was asking for particulars of the plaintiff’s damages, and I should have been surprised if those particulars had been ordered. Cases were cited by the defendant’s counsel in which it had been sought by administering interrogatories to obtain the names of persons who could be called as witnesses at the trial. In one of these – Eade v. Jacobs (2) – Lord Justice Cotton stated the rule as to discovery. He said: “Looking at the practice formerly existing in the Court of Chancery, I think that the plaintiff is entitled to a discovery of the facts upon which the defendant relies to establish his case, but not of the evidence which it is proposed to adduce.” It seems to me that in the present
case – peculiar as it is – the particulars which the defendant requires are particulars of facts upon which the plaintiff relies, and not of the evidence he proposes to adduce. I am therefore of opinion that the particulars ought to be given, and that the order was rightly made.
(1) 20 Ch. D. 519.
(1) W. N. 1874, p. 106.
(2) 3 Ex. D. 335.