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ODHAMS PRESS LIMITED.
[COURT OF APPEAL]
1936 JAN. 13, 14 FEB. 7
[1935. B. 3481.]
BEFORE THEIR LORDSHIPS:
GREER, SLESSER and SCOTT L.JJ.
Valentine Holmes – for the appellants.
St. John Field – for the respondent.
Solicitors for appellants: Lewis & Lewis.
Solicitors for respondent: Kenneth Brown, Baker, Baker.
TORT AND PERSONAL INJURIES LAW:- Defamation – Libel – Where no specific reference to plaintiff is mader – Particulars of allegation that certain words referred to plaintiff.
CHILDREN AND WOMEN LAW:- Women in Business – Licensed pilot – Publication alleging criminal conduct – Use of female pronouns and descriptions without use of actual name – Whether enough to found defamation – How treated
HISTORY AND SUMMARY
The defendants published an article in a newspaper published by them in which they referred to certain aeroplane smuggling exploits of “an Englishwoman.” The plaintiff brought a libel action against the defendants, and in her statement of claim she alleged that the words “an Englishwoman,” “she,” and “her,” in the article, referring to the woman who was alleged to have been guilty of plane smuggling, meant the plaintiff, but the plaintiff was not identified in the article by name or description as the woman referred to. The defendants applied for an order for particulars of the allegation that the words complained of referred to the plaintiff. The Master made an Order that the plaintiff should deliver to the defendants particulars of the allegation in the statement of claim, that the words complained of were published of the plaintiff, and that “Englishwoman,” “she,” and “her,” in the words meant the plaintiff, stating the facts from which it was to be inferred that the words were published of the plaintiff and that the said specific words meant the plaintiff. The Judge in Chambers reversed the Order of the Master. On appeal:-
Held, that the material facts on which a plaintiff must rely in a libel action necessarily included the facts and matters from which it was to be inferred that the words were published of the plaintiff. Without a statement of those facts and matters it was impossible for the defendants to be in a position to decide how to plead to the statement of claim. The matters and facts referred to in the Order of the Master were material facts on which the plaintiff relied as a matter of necessity in support of her allegation that she was defamed by the article in question, and under the provisions of Order XIX., r. 4, such facts ought to have been stated in the statement of claim, and if not so stated the defendants were entitled to have further particulars of the allegation that the words referred to the plaintiff.
APPEAL from a decision of Lewis J. sitting in Chambers.
The plaintiff, Mildred Mary Bruce (wife of The Hon. Victor Bruce) was, and was well known as, an airwoman holding a pilot’s licence, and an expert in matters of aviation.
The defendants, Odhams Press, Ld., were the printers and publishers of a weekly newspaper entitled The People, which had a large circulation in the United Kingdom.
The plaintiff brought an action against the defendants for libel contained in The People published on September 8, 1935.
The plaintiff by para. 3 of her statement of claim alleged that “In the issue of the said newspaper dated September 8, 1935, the defendants falsely and maliciously printed and published or caused to be printed and published of the plaintiff the following words:-
‘THE NEW RACKET.
‘And it was an Englishwoman’ (thereby meaning the plaintiff) ‘who started it.
‘Plane-running is the latest smuggling “racket” and Abyssinia offers a ready market for those engaged in it.
‘The process is a simple one. Owing to the country’s failure to sign the Arms Convention, armaments cannot be exported from Britain to Abyssinia except under licence from the Foreign Office, and this has always been refused.
‘This embargo applies to warplanes exported from this country. There is, however, no ban on aircraft intended for commercial purposes.
‘Taking advantage of this fact a number of machines have been shipped as commercial planes to some neutral country. There a trusted agent proceeds to make the necessary alterations, and in a few hours the machines have been converted into effective bombers and fighters. These warplanes are then transhipped from the neutral country to Abyssinia.
‘This aeroplane running was started by an enterprising young Englishwoman’ (thereby meaning the plaintiff) ‘who began operations during the Bolivia-Paraguay war in South America.
‘By means of a number of aliases, she’ (thereby meaning the plaintiff) ‘bought up all the second-hand aircraft and their component parts that were on the market.
‘Her’ (thereby meaning the plaintiff’s) ‘problem was to find secret storage space for these aircraft, and ultimately she’ (meaning the plaintiff) ‘used the vaults of a disused church in the southern counties.
‘There the machines were stored until they were ready for shipment to a South American port, either as commercial aircraft or in their component parts.
‘In this way she’ (thereby meaning the plaintiff) ‘was able to evade the embargo.'”
By para. 4 of the statement of claim the plaintiff alleged that by the said words the defendants meant and were understood to mean that the plaintiff had been constantly engaged for some time past in committing criminal offences by secretly and illegally exporting munitions of war – namely, aircraft, assembled or dismantled, and aircraft engines, contrary to certain specified statutes, and that her conduct in committing the said offences was deserving of the severest condemnation.
On the application of the defendants the Master made an Order that the plaintiff should within fourteen days deliver to the defendants particulars in writing of the allegation in para. 3 of the statement of claim, that the words complained of were published of the plaintiff, and that “Englishwoman,” “she,” and “her,” in the said words meant the plaintiff, stating the facts and matters from which it was to be inferred that the words were published of the plaintiff, and that the said specific words meant the plaintiff, and that the plaintiff should have leave to supplement these particulars at any time up to twenty days before the trial of the action.
The plaintiff appealed from the Order of the Master to the judge in Chambers, who allowed the appeal.
The defendants appealed from the decision of the Judge in Chambers.
Valentine Holmes for the appellants.
The defendants are entitled to the particulars which were ordered by the Master, as they are necessary and desirable in order that the defendants may be in a position to decide what their defence to the action should be. The only question in the case is one of identity. Particulars of the kind asked for were ordered in Youssopoff v. Metro-Goldwyn-Mayer Pictures. (1)
It is most unusual for a statement of claim in a libel action to omit all the facts and circumstances from which it can be inferred who was meant. These facts ought to have been set out in the statement of claim originally as was done in _ Jones v. E. Hulton & Co.(1)
(1) (1934) Unreported.
Cotton L.J. in Philipps v. Philipps (2) said that “it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they have to meet when the case comes on for trial.” That directly applies in the present case. The defendants here are not asking for the evidence but for particulars of the facts upon which the plaintiff relies.
[SLESSER L.J. referred to _ Ratcliffe v. Evans. _(3)].
St. John Field – for the respondent.
If these particulars are ordered it will amount to ordering the plaintiff to state the evidence by which the material facts upon which she relies are to be proved, and will be an infringement of Order XIX., r. 4, of the Rules of the Supreme Court. Under that rule “every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim … but not the evidence by which they are to be proved.” Therefore the plaintiff must plead that the words complained of were spoken of her but need not plead anything more. The statement of claim sets out sufficiently the case the defendants will have to meet at the trial.
[GREER L.J. In Philipps v. Philipps (4) Bramwell L.J. said: “The object of the rules is threefold. It is that the plaintiff may state what his case is for the information of the defendant, and that the plaintiff may be tied down to it and not spring a new case on the defendant; secondly, that the defendant may be at liberty to say, that the statement is not sufficient in point of law, and to raise the point on demurrer; and thirdly, that the defendant, instead of being driven to deny everything by an ambiguous and uncertain statement involving conclusions of law as well as actual facts, and so going down to try an expensive issue, may be at liberty to single out any one statement, and to answer it.”]
(1)  2 K. B. 444; In H. L.  A. C. 20.; (2) (1878) 4 Q. B. D. 127, 139.; (3)  2 Q. B. 524, 532.; (4) 4 Q. B. D. 127, 131.
The defendants know that the plaintiff will call witnesses who will say that they have read the libel and thought it referred to the plaintiff. What the defendants are asking for by their application is that the plaintiff shall state the reasons why the witnesses have come to that conclusion. The defendants are asking for these particulars under Order XIX., r. 7B., but they have not put in a defence yet, and by that rule “particulars of a claim shall not be ordered under r. 7 to be delivered before defence unless the Court or judge shall be of opinion that they are necessary or desirable to enable the defendant to plead.” Nevertheless the defendants want the plaintiff to state the facts from which it is to be inferred that the libel referred to the plaintiff. In the days of strict pleading before the passing of the Judicature Act, 1873, the plaintiff was never required to set out the facts proving the introductory averments: Bourke v. Warren. (1)
[SLESSER L.J. It is stated in Bullen & Leake’s Precedents of Pleading, 3rd ed., p. 304, that “the declaration must state that the words were spoken, or the libel was written ‘of the plaintiff,’ unless the matter itself spoken or published manifestly pointed out and applied to the plaintiff; otherwise the count would be bad even on error.” The question then arises whether the circumstances are set out in the statement of claim in the present case with sufficient particularity.]
In Clement v. Fisher (2), which is cited as an authority for that proposition, the second count was held to be bad because it did not repeat the words “of and concerning the plaintiff.” If the words used were innocent in their natural meaning and actionable only in consequence of the peculiar meaning conveyed by them on the particular occasion it was necessary to add an innuendo or statement of the meaning intended by the words. It was formerly necessary to insert in the declaration, by way of inducement, a prefatory averment of the meaning of the words, and then by innuendo to allege that they were used to convey that meaning: see O’Brien v. Clement. (1) Prefatory averments were abolished by s. 61 of the Common Law Procedure Act, 1852.
(1) (1826) 2 C. & P. 307.; (2) (1827) 7 B. & C. 459.
[SLESSER L.J. It is stated in Gatley on Libel and Slander, 2nd ed., p. 536, that “the defendant is entitled to particulars of any prefatory averment in the statement of claim which, whether necessary or not, is not immaterial for the purposes of the plaintiff’s case.”]
There never was a prefatory averment as to the meaning of the words “of and concerning the plaintiff,” but only as to the meaning of the words alleged to constitute the libel. It was held in Le Fanu v. Malcomson (2), that though defamatory matter may appear only to apply to a class of individuals, yet if the descriptions in such matter are capable of being, by innuendo, shown to be directly applicable to any one individual of that class, an action may be maintained by such individual in respect of the publication of such matter. In the present case every fact required by Order XIX., r. 4, has been pleaded – namely, the libel and the allegation that it referred to the plaintiff. It is very remarkable that there is no report of an application such as this one, asking for particulars of the allegation that the words complained of were published of the plaintiff, having been made to the Courts. That is a matter of evidence for the jury. If the present application is right, plaintiff’s counsel in a libel action would have to have proofs of all his witnesses before drawing the statement of claim. In the Youssopoff case (3) plaintiff’s counsel offered to give the particulars which are now asked for. Where a libel does not on the face of it refer to the plaintiff some extrinsic evidence must be given to connect the libel with the plaintiff. It is neither necessary nor desirable to apply for particulars before the issues to be tried are fixed. Palmer v. Palmer (4) and Cassidy v. Daily Mirror Newspapers, Ld. (5) were also cited.
Valentine Holmes in reply. This statement of claim is unprecedented and therefore this application for particulars is also without precedent. The particulars which used formerly to be inserted in the prefatory averment are now put into the body of the statement of claim or into the innuendo. The defendants are not asking for particulars of the evidence by which the plaintiff will prove her case, but particulars of the facts which the plaintiff is going to prove as showing that persons knowing the circumstances would reasonably infer that the words complained of referred to the plaintiff. This statement of claim does not comply with r. 4 of Order XIX., and therefore the defendants would be entitled under r. 7 to a further and better statement of the nature of the claim. The issue to be tried is whether the words complained of could reasonably be thought to refer to the plaintiff. If it were a case in which other persons might reasonably think that the words referred to the plaintiff, the defendants might plead an apology.
(1) (1846) 16 M. & W. 159.; (2) (1848) 1 H. L. C. 637.; (3) Unreported.; (4)  1 Q. B. 319.; (5)  2 K. B. 331.
Cur. adv. vult.
GREER L.J. (read by SLESSER L.J. ). Mrs. Mildred Mary Bruce, the respondent in this appeal, by her statement of claim alleged that she had been libelled by the defendants in an article appearing in a newspaper published by them called The People. The words of the alleged libel, which are set out in para. 3 of the statement of claim, refer to certain aeroplane smuggling exploits of “an Englishwoman,” and if it be established that they refer to the plaintiff it is admitted that the statements contained in the article in question are defamatory. The plaintiff alleges in her statement of claim that the words “an Englishwoman” and the other words referring to the woman who is alleged to have been guilty of plane smuggling mean the plaintiff, but the plaintiff is not in the article identified by name or description as the woman referred to. She can only succeed in establishing her case by showing that there were some facts or circumstances which justified reasonable people who read the article in construing the words complained of as referring to her. This being the nature of the statement of claim, the defendants applied for an Order for particulars of the allegation that the words complained of were published of the plaintiff. The Master on that application made an Order that the plaintiff should within fourteen days deliver to the defendants particulars under para. 3 of the statement of claim of the allegation that the words complained of were published of the plaintiff and that “Englishwoman,” “she,” and “her,” in the said words means the plaintiff, stating the facts from which it is to be inferred that the words are published of the plaintiff and that the said specific words mean the plaintiff, and he further ordered that the plaintiff should have leave to supplement those particulars at any time up to twenty days before the trial of the action. From this Order the plaintiff appealed to the judge in Chambers, who allowed the appeal, reversed the Order of the Master and gave leave to the defendants to appeal to this Court.
In my judgment the Order of the Master was right, and the judge ought not to have allowed the appeal. Though the question is only one relating to particulars and the Court of Appeal has at times been reluctant to consider and allow or dismiss appeals relating merely to particulars, we reserved our decision because the question involved in the appeal is one of principle and there has not so far been any reported case dealing with the question.
It was contended on behalf of the appellants that they were entitled to the particulars which had been ordered by the Master on the ground that they were necessary and desirable in order that they might be in a position to decide what their defence to the action should be. As far as we can ascertain, the question whether a defendant is entitled to the kind of Order which the Master made in this case has never come before the Court for decision, and it therefore becomes necessary to deal with the question involved in the appeal on principle.
I am unable to attach any importance to the rules of practice prevailing before the Judicature Act. The Rules made under the Judicature Act form a code by which we are to be guided in deciding matters of practice and procedure. The first observation that occurs to me as relevant is that it is an essential part of the cause of action of a plaintiff in cases of defamation, whether of slander or libel, that the words are defamatory of the plaintiff. If they are defamatory of some other person, real or imaginary, they do not provide the plaintiff with any cause of action at all. Defamatory statements which are in the air, as it were, and do not appear by their words to refer to the plaintiff, have got to be made referable to the plaintiff by reason of special facts and circumstances which show that the words can be reasonably construed as relating to the plaintiff. It is not sufficient under the existing rules of practice merely to allege in general terms a cause of action. Such cause of action must be alleged with particularity. For example, it would not be sufficient for a plaintiff in an action of trespass to plead “the defendant trespassed on my lands and took away and converted to his own use two of my horses” without stating particulars of the time and place when the trespass is alleged to have taken place. A plaintiff must state sufficient particulars of his alleged cause of action which will enable the defendant either to admit it or deny it or otherwise plead a defence to it. By r. 4 of Order XIX. it is provided that “every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.” The material facts on which the plaintiff must rely for her claim in the present case seem to me necessarily to include the facts and matters from which it is to be inferred that the words were published of the plaintiff. Without a statement of these facts and matters, it seems to me impossible that the defendants could be in a position to decide how to plead to the statement of claim. The matters and facts referred to in the Order of the Master seem to me to be material facts on which the plaintiff relies as a matter of necessity in support of her allegation that she was defamed by the article in question, and under the provisions of Order XIX., r. 4, such facts ought to have been stated in the statement of claim, and if not so stated the defendants are entitled to have further particulars of the bald allegation that the words referred to the plaintiff.
It was contended by Mr. St. John Field on behalf of the plaintiff that the practice before and since the Judicature Acts had always been merely to allege that the defamatory words referred to the plaintiff, and the plaintiff was not under any obligation to give particulars of the special circumstances which show that the defamatory statements referred to the plaintiff. It appears that sometimes such facts and circumstances were pleaded, as they were in the case of Jones v. E. Hulton & Co. (1)
In my judgment the facts and matters referred to in the Master’s Order were material facts which the plaintiff had to allege to show that she had a cause of action against the defendants. They ought to have appeared in the statement of claim, and as they were not there the Master was justified in making the Order that he did.
Mr. Field also contended that in any event the particulars ought not to have been ordered before defence, and he cited in support of this contention r. 7B. of Order XIX., but in my judgment the particulars of claim ordered by the Master are necessary or desirable to enable the defendants to plead or to enable them to decide how to plead; they may have to decide whether they ought to deny the claim entirely, put in a complete defence to the claim, or whether they should admit and apologize and, if so advised, pay money into Court. I think the argument based on r. 7B. of Order XIX. also fails.
We were referred to a number of cases, but they do not appear to me to afford very much help in deciding the question involved in this appeal. There are, however, observations in the course of the judgments, of Bramwell L.J. and Brett L.J. in Philipps v. Philipps (2), which seem to me to be helpful. Lord Bramwell (then Bramwell L.J.) says (3): “The object of the rules is threefold. It is that the plaintiff may state what his case is for the information of the defendant.” I think “may” there ought to read “shall.” The observation of Brett L.J. in the same case (1) is, I think, applicable to the present case. The Lord Justice there says: “Therefore, again, in their pleadings they ought to state every fact upon which they must rely to make out their right or claim.” The facts referred to in the Master’s Order are certainly facts upon which the plaintiff in this case must rely to make out her claim. Mr. Field contended that the Order made by the Master was oppressive because the plaintiff could not be expected at the present time to know all the evidence that she would be able to procure in order to show facts and circumstances which justified some readers of the article in interpreting it as defamatory of the plaintiff. This difficulty is partly provided for by the words of the Order that the plaintiff should have leave to supplement the particulars at any time up to twenty days before the trial of the action, but we think it fair that the Order should contain the further words “or at such later time as may be ordered by the Court or a judge or at the trial on such terms as may be deemed just.” The addition of these words ought to make no difference to the result of this appeal. The appeal should be allowed with costs, but with a direction that those words should be added to the order. The appellants should also have the costs of the appeal to the judge in Chambers.
(1)  2 K. B. 444. In H. L.  A. C. 20.; (2) 4 Q. B. D. 127.; (3) Ibid. 131.
By Order XIX., r. 4, it is provided that “every pleading shall contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim, or defence, as the case may be, but not the evidence by which they are to be proved”; and the question which arises in the present case may shortly be put thus: whether it is sufficient in a statement of claim for defamation in which the defamatory matter does not mention the plaintiff at all, merely to insert after the words, “it was an Englishwoman” – the words “thereby meaning the plaintiff.” As has been pointed out by Greer L.J., the question of the degree of particularity which the defendant may demand in such a case has not been the subject of recent judicial decision.
(1) 4 Q. B. D. 133-4.
In the case of Youssopoff (1), in which the plaintiff claimed damages for an alleged libel contained in a sound film alleging that the defendants had published in the film pictures and words which were understood to mean that she, therein called “Princess Natasha,” had been seduced, Sir Patrick Hastings for the plaintiff on an interlocutory appeal agreed to give particulars as to the reasons why the plaintiff was to be identified with the Princess Natasha, and in some cases, such as Jones v. E. Hulton & Co. (2), the circumstances in which it was said that the defamatory statements would be understood to convey a meaning defamatory of the plaintiff in the circumstances were pleaded.
In such a case as the present, the plaintiff, not being actually named in the libel, will have to prove an innuendo identifying her in the minds of some people reasonably reading the libel with the person defamed, for there is no cause of action unless the plaintiff can prove a publication of and concerning her of the libellous matter: see per A. L. Smith M.R., in Sadgrove v. Hole. (3) And such innuendo, being essential to the plaintiff’s case, seems to me to fall within r. 4 of Order XIX., as being a statement of the material facts on which the party pleading relies, without which no cause of action is disclosed. The earlier cases as to the particularity with which an innuendo must be pleaded were concerned rather with the meaning of the defamatory matter itself in some secondary sense, than with the problem whether the person defamed would be understood to be the plaintiff and in such cases the extraneous facts which made a statement, ex facie innocent, defamatory had to be pleaded. It was formerly necessary to insert in the declaration by way of inducement a prefatory averment of the meaning of the words and then by the innuendo to allege that they were used to convey that meaning; the averment containing the necessary particulars. But after the abolition of the necessity of preliminary averment and facts and the colloquium necessary to support the innuendo had been effected, nevertheless, though evidence be no longer pleaded, the need for assigning a special meaning by innuendo with sufficient particularity remains.
(1) Unreported.; (2)  2 K. B. 444. In H. L.  A. C. 20.; (3)  2 K. B. 1, 4.
In – Clement v. Fisher (1), on a count that the defendant published of the
plaintiff libellous matter without alleging that it was matter of and concerning the plaintiff, Lord Tenterden C.J. said (2): “Such an allegation would not have been necessary if there had been in the libel set out anything which clearly applied to the plaintiff … it seems to me quite impossible to say that it has any relation to the plaintiff… There is no averment that the particular matter is of and concerning the plaintiff, or any innuendo shewing that it related to the plaintiff.”
With the extension of the possibility of innuendoes as to words said to be interpretable by some as concerning the plaintiff, encouraged by such decisions as Jones v. E. Hulton & Co. (3), and Cassidy v. Daily Mirror Newspapers, Ld. (4),the question of particularity in pleading such innuendoes may become as important as the older learning on the colloquium and innuendo to be attached to the defamatory matter itself. But in principle, the general rule as stated by Cotton L.J., in Philipps and Philipps (5), that, “it is absolutely essential that the pleading, not to
be embarrassing to the defendants, should state those facts which will put
the defendants on their guard and tell them what they have to meet when the
case comes on for trial,” and the passage from Bowen L.J., in Ratcliffe v.
Evans (6), that “as much certainty and particularity must be insisted on,
both in pleading and proof of damage, as is reasonable, having regard to the
circumstances” have only to be applied to the present case to result in the
need for the particulars here sought becoming apparent.
I agree that this appeal should be allowed and the Order varied as stated by
(1) 7 B. & C. 459.; (2) Ibid. 462.; (3)  2 K. B. 444; In H. L.  A. C. 20.; (4)  2 K. B. 331.; (5) 4 Q. B. D. 139.; (6)  2 Q. B. 524, 532.
In this appeal I should have been content simply to express agreement with the judgments already delivered, which I have had the advantage of perusing, but that it seems to me to raise important questions of principle in regard to pleading and the correct interpretation of the leading rules of Order XIX., upon which I prefer to express my reasons and conclusions in my own way.
The appeal is from a refusal to order particulars asked for by the defendants under r. 7 of Order XIX., and as the granting or refusing of such an application is very often a matter of pure discretion with which this Court would not interfere, it is necessary to determine whether that is the case here or whether the learned judge acted upon some erroneous view of the law. The appellants submit that he did, and put their case thus: “The statement of claim sets forth a libel with adequate innuendoes as to its meaning; but there is no innuendo fastening the libel on the plaintiff; the words quoted contain no reference whatever to the plaintiff express or implied; the lady referred to may be purely fictitious; and there is nothing in the statement of claim to identify the lady of the libel with the plaintiff. The absence of any such link makes the statement of claim defective on two grounds, first, that it discloses no cause of action vested in the plaintiff, and secondly that on the issue of identification it gives the defendants no information as to the case they will have to meet at the trial. On the first ground we submit that under the old pre-Judicature Act practice the declaration would have been demurrable, because it contained no averment of extrinsic facts from which it could be inferred that the libel was in reality directed against the plaintiff, or alternatively that it would be so interpreted by persons knowing those facts. For the same reasons we say that the statement of claim is under the present system lacking in a statement of material facts within the meaning of Order XIX., r. 4, which is essential to the cause of action, and that therefore it was liable to be struck out under Order XXV., r. 4, as was done in Philipps v. Philipps (1); or a further and better statement of the nature of the claim might have been ordered under Order XIX., r. 7.
(1) 4 Q. B. D. 127.
On the second ground we submit that the omission of this link is a transgression of the modern rule that, however concisely expressed a statement of claim may be, it must contain sufficient information to put the defendant on his guard as to the case he will have to meet at the trial – as in the various specific causes of action mentioned for purposes of illustration in r. 6. Where there is an omission from the statement of claim of averments needed for the protection of the defendant, there is a default under r. 6, and the defendant is entitled ex debito justitiæ to an order for proper particulars under r. 7. Thus under either head the issue is appealable and not a matter of discretion. The defendants might have proceeded on the lines of (1.), but are content to have particulars under (2.).”
For the respondent, the plaintiff in the action, it was contended before us (1.) that the words in the statement of claim “published of the plaintiff” were a sufficient statement of the material fact, and (2.) that to demand the addition of averments, whether in the statement of claim or by way of particulars, identifying the lady of the libel with the plaintiff would be to transgress the inhibition of r. 4 against pleading evidence.
The determination of the appeal, which was well argued on both sides, involves a careful consideration of Order XIX., and especially of the true meaning of “statement of material facts” under r. 4 and of “particulars” under r. 6. That Order draws no express line of demarcation between the two, and I am not sure that in some of the judgments in the reported cases the distinction between the two has always been kept as clear as is desirable; but it is beyond question that there is a radical distinction, and none the less so that in cases near the dividing line there is a penumbra where the two may and often do overlap, just as between night and day there is a zone of doubt which we call dusk.
Many of the pre-Judicature Act decisions were cited to us. They are relevant as, within the limits of any issues raised by the present case, the Judicature Acts effected no change in the substance as distinct from the forms of pleading.
Order XIX., r. 4, lays down the fundamental rules for framing a statement of claim, but they are based on the old principles of law and pleading as applied by the Common Law Courts both before and after the Common Law Procedure Acts; and Bullen & Leake’s, 3rd ed., published in 1868, is still the best guide for the pleader on all such questions of principle. The new rules of pleading introduced by and under the Judicature Acts did not release a plaintiff from his obligation to “declare” a legally complete cause of action in his statement of claim.
But the Rules of the Supreme Court, as Greer L.J. has pointed out, now constitute, within the framework of the Judicature Acts, a complete Code of pleading, and I think the present case can and should be decided upon the phraseology of the Code, referring to the earlier position and decisions only if and so far as necessary to elucidate some point of ambiguity in the language of its provisions.
The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word “material” means necessary for the purpose of formulating a complete cause of action; and if anyone “material” fact is omitted, the statement of claim is bad; it is “demurrable” in the old phraseology, and in the new is liable to be “struck out” under Order XXV., r. 4: see Philipps v. Philipps (1); or “a further and better statement of claim” may be ordered under Order XIX., r. 7.
(1) 4 Q. B. D. 127.
The function of “particulars” under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim – gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff’s cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff’s cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a “material fact” and a “particular” piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them.
In a case where there is no omission of material facts under r. 4, whether particulars should be ordered is very often a matter of pure discretion – because it depends on a view of fairness or convenience which is essentially a matter of degree. But where particulars are asked because the statement of claim is defective in that it omits some essential averment – i.e., some “material fact,” the question is not one of discretion, and the adoption by the defendant of the lenient remedy of an application for particulars instead of the more stringent remedy of striking out does not turn an issue of right into an issue of discretion. As Philipps v. Philipps (1) is an illustration of the more stringent remedy, so Palmer v. Palmer (2) is an illustration of the more lenient remedy; but if in the latter case the defendant had so chosen I think he would have been entitled to the more drastic remedy.
(1) 4 Q. B. D. 127.; (2)  1 Q. B. 319.
In the present case if it be assumed that the words contained in para. 3 of the statement of claim “published of the plaintiff” are an insufficient statement of material facts within r. 4, the defendants might have applied under Order XXV., r. 4, to strike out the statement of claim as disclosing no cause of action, or taken a middle course by applying under Order XIX., r. 7, for “a further and better statement of the nature of the claim,” and in either case would have been entitled as of right to the order as asked. But plaintiffs are so often in practice allowed to cure an omission to state some “material fact” in the statement of claim by delivering particulars, that the fact that the defendants here asked for particulars instead of adopting either of the above two courses ought not to prejudice their rights; it does not convert an issue of right into a mere exercise of discretion. None the less I think it would tend to promote good pleading if particulars were less used – or abused – as a cover for the omission of “material facts” which ought to have been plainly stated, and if in the future on the hearing of applications parties who attack a statement of claim on the ground that it does not state all “material facts” were called upon to make the proper application rather than merely ask for particulars.
This being the law of pleading as I think it now stands under the Code, it remains to consider whether either of the answers put forward on the part of the respondent, as stated above, is sound. As regards the first, under the old law I think it clear that a declaration not identifying the plaintiff in terms would have been held bad; and that the mere insertion of the words “published of the plaintiff” would not have been regarded as sufficient averment: an averment of facts from which the general public or at least some particular persons or class of persons to whom the libel was published would have understood the plaintiff to be intended, with an appropriate innuendo applying the libel to the plaintiff in the light of those facts would have been requisite. I agree with the view expressed in Mr. Gatley’s book, 2nd ed., p. 522. It is directly supported by the decision in Fisher v. Clement (1),where the declaration alleged that the libel was “published of and concerning the plaintiff,” a verdict of 30l. damages was found for him, and judgment was entered accordingly, but on a writ of error the Court of King’s Bench set aside the judgment on the ground that the above allegation was insufficient, there being no innuendo that the matter of the libel related to the plaintiff.
(1) 7 B. & C. 459.
But if this statement of claim would have been bad in the old days, it is equally so now. Mr. Field, I am sure, did not intend to contend that the omission of a necessary averment could be cured by evidence at the trial: but unless he did, his point about evidence is no answer to the defendants’ contention that they are entitled as of right to particulars “of the facts and matters from which it is to be inferred that the words were published of the plaintiff,” etc., following the words of their application.
And even if the defendants’ application for particulars be considered on the alternative footing of r. 6 – that the information was required in justness and fairness to the defendants in order to put them on their guard as to the case they will have to meet – I still think that the kind of information for which they ask is essential to enable them to prepare for trial, and is therefore a matter of right and not of discretion. The argument about evidence is irrelevant; the rule merely forbids the pleading of evidence which does not constitute a “material fact” or “particulars.”
For the above reasons I think this appeal should be allowed, the Order of the Master restored and that the appellants should have the costs of the two appeals and the costs before the Master with a certificate for counsel in any event.