3PLR – DINGLE V. ASSOCIATED NEWSPAPERS LTD AND OTHERS
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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DINGLE
V.
ASSOCIATED NEWSPAPERS LTD AND OTHERS
COURT OF APPEAL
[1961] 21 ALL E.R. 897
30 NOVEMBER, 1, 2, 5, 6 DECEMBER 1960, 8 FEBRUARY 1961
3PLR/1961/2 (CA-E)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
SELLERS, HOLROYD PEARCE AND DEVLIN LJJ
REPRESENTATION
Geoffrey Lawrence QC and W D T Hodgson for the plaintiff.
Neville Faulks QC and David Hirst for the defendants.
Solicitors: Stephenson, Harwood & Tatham agents for Grundy, Kershaw, Farrar & Co, Manchester (for the plaintiff); Swepstone, Walsh & Son (for the defendants).
Henry Summerifeld Esq Barrister
MAIN ISSUES
TORTS AND PERSONAL INJURY – DEFAMATION: Libel – Meaning and essential ingredients – relevant considerations for award of damages for libel – Mitigation of damages – defences to libel – Relevant considerations in setting up a successful defence based privilege – Whether the defence of privilege attaches to form or occasion but not to substance
TORTS AND PERSONAL INJURY – DEFAMATION: Previous publication in privileged Parliamentary Paper – Subsequent publication with additional actionable defamatory material by defendant newspaper.
TORTS AND PERSONAL INJURY: Libel – Damages – Mitigation – Reputation – Established bad reputation only taken into account in mitigation – Prior publication of same libel not evidence of such reputation –
KEY QUOTE
“In my judgment the fact that a passage in the defamatory article is protected by privilege is irrelevant in the assessment of damages in this case. The foundation for this conclusion is that the report and Mr Bromley’s story are as a piece of defamation essentially one and the same. The defamatory essence of them both is that the plaintiff was guilty of sharp practice. The story is worse than the report because it goes further but in substance they contain the same libel. Privilege attaches to form or occasion but not to substance. What a Member of Parliament says in the House of Commons is privileged; the repetition of the very same words outside is not. A report of a judicial or parliamentary proceeding may be privileged, but if the substance of the matter be cast into another form, the publication is subject to the ordinary law.”
SUMMARY OF FACTS AND JUDGMENTS
The plaintiff, who was town clerk of the City of Manchester, wrote in 1957 a letter to shareholders of a cemetery company containing an offer on behalf of the corporation to purchase the shares in the company at £1 each. A report of a select committee of the House of Commons on a Manchester Corporation Bill, which was before the House in 1958 and which contained clauses to enable the corporation to clear the land of the cemetery company for use as, eg, an open space, criticised the corporation’s offer to purchase the shares. The report stated—”It was clear to the committee that the corporation obtained the shares by presenting a one-sided view, which failed to disclose the true position of the company on a break-up”. The report was widely publicised by newspapers, including the “Daily Mail”, the first defendants’ national newspaper, on 17 May 1958. On 16 June 1958, the “Daily Mail” published an article which described an interview with the chairman of the cemetery company who was reported as stating that by the plaintiff’s letter the corporation obtained the shares for less than half their real value; the article contained other allegations and reproduced the sentence set out above from the Parliamentary report. On 2 July 1958, the “Daily Mail” published an article entitled “Town Clerk Cleared”; the article showed that the plaintiff was cleared of threat of prosecution under s 12 of the Prevention of Fraud (Investments) Act, 1939, it also set out the corporation’s defence to the criticism, but it did not intimate that the accusations of the plaintiff’s critics had been successfully met or offer any apology to the plaintiff. In an action by the plaintiff for libel he pleaded, among other matters, an innuendo that the article of 16 June 1958, meant and was understood to mean that he had been guilty of an offence against s 12. The trial judge found that the price offered by the corporation was generous, that other allegations in the article were also untrue, and that there was nothing wrong with the plaintiff’s letter to the shareholders or with his conduct in the matter, but that the defendants acted without malice in reporting the Parliamentary report. The trial judge held that the defendants’ publication of the extract from the report was privileged, but that the plaintiff was entitled to damages for libels contained in the rest of the article, and he assessed the damages at £1,100. On appeal on the quantum of damages,
Held – The damages should be increased (and would be increased to £4,000) for the following reasons—
(i) damages for the libel should not be mitigated on account of any injury to the plaintiff’s reputation due to the publication of the report of the select committee because—
(a) it was only established bad reputation that could be taken into account in mitigation of damages for defamation, and the publication of the report was sufficiently contemporaneous with the libel by the defendants that there could be no inference that bad reputation had attached to the plaintiff at the time of the libel (see p 921, letter h, p 922, letter f, p 910, letter i, p 911, letter a, and p 908, letter b, post).
Judgment of Cave J in Scott v Sampson ((1882), 8 QBD at pp 503 et seq) approved.
(b) previous publication of the same libel by other persons was no ground for mitigating damages (see p 905, letter i, to p 906, letter b, p 910, letter b, and p 915, letter a, post).
Saunders v Mills ((1829), 6 Bing, 213) approved.
Dictum of Lord Hanworth MR in Chapman v Lord Ellesmere ([1932] All ER Rep at p 230) disapproved.
(c) (per Devlin LJ) where injury has been done which is indivisible any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it (see p 916, letter a, post); on the supposition that the report and the article of 16 June 1958, were contemporaneous, the defendants would be responsible for the whole damage flowing from publication of the article, since damage referable to the reference to the report would be indivisible from the rest (see p 918, letter f, post).
(ii) the trial judge was wrong in regarding the period of damage as having ended by 2 July 1958, for the publication of the article on that date, which contained no apology by the defendants, was not the complete vindication of character to which the plaintiff was entitled (see p 908, letter h, and p 912, letter i, to p 913, letter a, post).
(iii) (per Sellers LJ) the trial judge had failed to take adequately into account that part of the innuendo which alleged that the plaintiff had committee a criminal offence (see p 908, letter h, but cf p 911, letter h, post).
Decision of Pearson J (noted [1960] 1 All ER 294) varied.
Notes
With regard to the nature of evidence of bad reputation which is admissible in mitigation of damages in an action for libel, the present case should be considered with the decision of the House of Lords in Plato Films, Ltd v Speidel, p 876, ante.
As to giving evidence of the plaintiff’s bad reputation in mitigation of damages in a defamation action, see 24 Halsbury’s Laws (3rd Edn) 116–118, paras 217, 218; and for cases on the subject, see 32 Digest 166–169, 2029–2067.
As to evidence of character, see 15 Halsbury’s Laws (3rd Edn) 293, 294, paras 530–532.
Appeal
The plaintiffs Philip Burrington Dingle, town clerk of Manchester, brought this action for damages for libels contained in the issues of the “Daily Mail” newspaper for 16 June and 26 June 1958. The first defendant, Associated Newspapers Ltd were the proprietors of the “Daily Mail”. The second defendant, Arthur George Wareham, was the editor of the “Daily Mail” and the third defendant, Michael Kelly, was a journalist employed by the first defendant. The plaintiff alleged that in the issue of the “Daily Mail” for 16 June 1958, the defendants falsely and maliciously printed and published an article concerning the circumstances in which Manchester Corporation acquired the shares in Ardwick Cemetery Ltd. The article, which stated that it was written by the third defendant, purported to be a report of an interview with Mr Bromley, the chairman of the cemetery company; it contained allegations by him that while negotiations for the sale of shares in the company were going on between the company’s board and Manchester Corporation, the plaintiff went behind the backs of the board by sending a letter to the shareholders in which the plaintiff offered them £1 for each share, a sum which was less than the offer for which the company were then negotiating. The chairman alleged in the article that the shares of the company were worth more than double the £1 each that, as the result of the plaintiff’s letter to the shareholders, the corporation paid for them. The article then continued with the following paragraph:
“Objections.
“Twice there have been formal objections in the House of Commons to a Bill dealing with the cemetery. A debate has been arranged for Thursday, but this may be shelved. Sir John Barlow, M.P. for Middleton and Prestwich, has put down a motion that there should be an independent valuation of the shares. If it proved more than £1 the balance would be paid by the corporation for all shares bought after Dec. 2, last. If not, the original £1 deal would stand. Last month, a committee of the House of Commons, examining the Bill—it was intended to enable Manchester to take over the cemetery for conversion to playing fields or an open space—reported:—‘It was clear to the committee that the corporation obtained the shares by presenting a one-sided view, which failed to disclose the true position of the company on a break-up’.”
The article concluded with a report of the chairman of the cemetery company’s views on the take-over of the company by Manchester Corporation. The plaintiff complained of the whole of this article alleging that it meant and was understood to mean that he had by a statement which he knew to be misleading, false or deceptive or by dishonest concealment of material facts induced or attempted to induce the shareholders of Ardwick Cemetery Ltd to enter into or offer to enter into an agreement to sell their shares and that the plaintiff was guilty of an offence under s 12(1) of the Prevention of Fraud (Investments) Act, 1939.
Pearson J found that the article of 26 June 1958, was not defamatory of the plaintiff, and that the publications of the report of the parliamentary committee were privileged, but that the plaintiff had acted properly in writing the letter and throughout the transaction. His Lordship inferred that the plaintiff’s reputation had been damaged by the defendants’ publication of the parliamentary report and of reports thereof in other newspapers, and held that the plaintiff was entitled to compensation only for any additional damage which he suffered by reason of the unprivileged libels by the defendants. Pearson, J accordingly assessed the plaintiff’s damages at £1,100 and gave judgment for the plaintiff for this sum. The plaintiff appealed.
Cur adv vult
8 February 1961. The following judgments were delivered.
MAIN JUDGMENT
SELLERS LJ.
This is an appeal by the plaintiff in respect of a judgmenta in his favour for £1,100 damages for defamation of character given by Pearson J against the defendants as the publishers of the “Daily Mail” and the editor and a reporter of the “Daily Mail” respectively. It has been submitted that the amount awarded is on any view far too small and out of harmony with the present-day awards in comparable circumstances. More particularly it has been submitted that in arriving at his assessment of damages the learned judge misdirected himself in law and misapprehended certain vital facts and issues.
The plaintiff is the town clerk of Manchester and has been in this important office since 1944 when he was appointed at the age of thirty-eight. His promotion with Manchester corporation was rapid. He was appointed senior assistant solicitor in January, 1938, and advanced to deputy town clerk in October of the same year. In addition to the office of town clerk the plaintiff holds many other appointments which are associated with or incidental to that position. He was, and is, undoubtedly well-known in local government circles and his duties bring him into professional association with a wide range of people, not only fellow-lawyers but administrators, both governmental and local, particularly in south-east Lancashire. Anything disparaging of the plaintiff might he regarded as news but it is obvious that a man in such a position would be highly vulnerable to allegations against his integrity and honesty or his standards of conduct in his office and profession. If those who provide and publish material for newspapers find that defamatory material affecting a public man, such as the plaintiff, is “news” they cannot be unaware that it will be most damaging and hurtful to him whether true or untrue and therefore of the risk they run of heavy damages if the matter they choose to write and publish is untrue and unprotected. A man’s legitimate grievance in such a matter can only be redressed in a court of law by an award of damages commensurate with the wrong done, especially when no apology is forthcoming when the true facts are known or are ascertainable.
It is right to say at the outset that the plaintiff vindicated his character from whatever source it was impugned and showed that he acted throughout in the best interests of all concerned in the matter which gave rise to all the trouble. I would say also that the plaintiff, despite much provocation to act immediately and to denounce those who misjudged him, restrained himself and curbed his personal interest in order to serve the corporation which employed him, by doing nothing which might prejudice or delay an important Bill which the corporation was seeking to have passed through Parliament. This was desirable and commendable and in no way mitigates the responsibility of the defendants.
It was from this Bill that all the trouble arose. The history of the Ardwick Cemetery in Manchester is amply set out in the judgment of Pearson J and I do not repeat it. There is no doubt that it had become not only unserviceable as a cemetery but in a state of neglect and ruin which made it an eyesore and a most undesirable open place which was frequented by hooligans and children. It was therefore in the interest of the city and its good administration that the site should be acquired and be properly controlled. The contemplated Manchester Corporation Bill provided an opportunity to insert some minor provisions giving power to the corporation to deal with the Ardwick Cemetery and this brought to a head the matter which had been under consideration for some time. In 1925 the Ardwick Cemetery Ltd was formed and, put shortly, it acquired the cemetery and presumably took over its obligations. The company’s concern was not to conduct or maintain it as a cemetery but, it seems, to sell or let off what land it could, the legality of which is at least questionable. As far back as 1948 the plaintiff and other officials of his corporation had discussed with Mr Bromley and Mr Evans, directors of the company, a proposal that the corporation should acquire the company’s undertaking in order to convert the cemetery into an open space but nothing came of it. At intervals there were further meetings, discussions and correspondence until on 2 December 1957, the plaintiff, in his capacity as town clerk, wrote this letter to the shareholders of Ardwick Cemetery Ltd:
“Dear Sir or Madam. Ardwick Cemetery Ltd. If you have not visited this cemetery recently you may not be aware how neglected it has become. The entrance gates are broken and the growth of weeds and shrubbery has in places made it almost impossible to reach some of the graves. It is difficult to see how the cemetery company, with their limited resources, can hope to make any substantial improvement in these conditions, and there seems a real danger of the cemetery becoming a public scandal as has happened with one or two commercial cemeteries in other towns. The company could not dispose of the cemetery for commercial purposes without obtaining an Act of Parliament and at a very high cost, as this would involve not only the removal of the tombstones but also the exhumation of all the human remains. The city council could usefully make use of the land for school playing fields or as an open space (which should avoid having to remove the human remains) and they will be prepared to do this notwithstanding the considerable cost involved in clearing away the weeds and removing the tombstones, if they are able to acquire the cemetery undertaking as a whole, which means acquiring all the shares. They have therefore instructed me to include the necessary clauses in the corporation’s Bill which has now been deposited in Parliament, and to make a formal offer to the shareholders of £1 per share. This is considered a generous offer considering that the dividend paid of recent years, and not every year, has been only 2 1/2 per cent. It is realised that the company still have some investments and also receive rent from some properties, but it will be appreciated that it would hardly be fair to expect the corporation to acquire the burdensome part of the company’s property, namely the cemetery itself, and for the shareholders to retain the profitable assets in the shape of investments and the rents. I am therefore writing to ask you to let me know if you would be prepared to accept an offer of £1 per share for the shares which you hold in the company if the corporation obtain the necessary powers from Parliament, as unless it is clear that a majority of the shareholders are prepared to agree to this I think the corporation may drop the proposal. You will understand that if this opportunity is allowed to pass, it is doubtful whether such a favourable offer would be forthcoming in the future, quite apart from the fact that the company may in the meantime be forced by public opinion to use more of their income and investments on caring for the cemetery than they have done in the past. It would most helpful if you would let me have your decision as soon as possible.”
Pearson J comments on that letter as follows:
“I studied it very carefully and I see nothing wrong with that letter at all; nothing wrong with it at all. I cannot see anything in the least improper about it. To my mind, it placed the whole position quite fairly before the shareholders. That was important, of course, and one is basing that finding on the view now taken as to the value of the shares: really, it was a generous offer, from that point of view, and perfectly fair.”
I now turn to the pleadings, which allege two separate libels. The first is in the “Daily Mail” for 16 June 1958, as set out in para 3 of the statement of claim, which sets out the whole articleb and I do not propose to read it now. Paragraph 4 is as follows:
“By the words set out in para. 3 hereof the defendants meant and were understood to mean that the plaintiff had by a statement which he knew to be misleading, false or deceptive or by the dishonest concealment of material facts induced or attempted to induce the shareholders of the Ardwick Cemetery, Ltd. to enter into or offer to enter into an agreement for disposing of their shares in the said company and that the plaintiff was guilty of an offence under s. 12(1) of the Prevention of Fraud (Investments) Act, 1939.”
Some of the statements made in the article complained of were found to be true and were justified by the defendants but substantial defamatory matters were not justified or even alleged to be true. Any innuendo must be derived from the defamatory statements which were not justified.
The judgment finds, after a full and careful analysis of the evidence, that the shares of the company were of very dubious value and were worth much less than £1 each and that any corporation which offered to buy them in 1957 or 1958 at £1 each was making a generous offer. It was established that after April, 1940, the highest price paid for any share was 10s and that in December, 1955, Mr Evans had bought twenty-four shares at 2s 6d each, at which price shares in the company had on some five occasions been valued for probate purposes. These findings were not challenged. The article therefore was untrue when it said that the shares were worth twice what the corporation paid or more than double the £1 each that Manchester Corporation paid for them. It was shown to be untrue to say that this is what the corporation got by buying 2,017 of the 2,100 shares at £1 each: The cemetery itself; land surrounding it, which brings in an income from chief rents of £430 a year; gilt-edged securities—mostly short-term—worth between £4,000 and £5,000 and giving an income of between £200 and £300 a year. The reader, on the information given, would not only see that the chairman of the company said the shares were worth twice at least the £1 the corporation offered and paid but would see for himself the alleged income and assets and would be likely to form his own conclusion that that was so.
The article complained of also alleges that the plaintiff’s letter to the shareholders went out while negotiations were still going on. This has been found to be justified and the plaintiff has attacked the finding. [His Lordship considered the facts on which this finding was based, and concluded thereon:] I would not disturb the judge’s conclusion that negotiations had not terminated. It matters little.
The words which have been held to be untrue and unprotected by any defence amply in my view fulfil the innuendo that the plaintiff had by the letter which he knew to be misleading and false and by the dishonest concealment of material facts induced or attempted to induce the shareholders of the Ardwick Cemetery Company to part with their shares. In the minds of readers who were lawyers or accountants (both classes of people who might well be especially interested in a town clerk and in particular the town clerk of Manchester) I think that the words written and unjustified would also bring to their minds that an offence under s 12 of the Prevention of Fraud (Investments) Act, 1939, had been committed by the plaintiff.
These are grave allegations against a town clerk. The stigma of sharp practice or dishonesty is greatly damaging. These most damaging observations are set out in the course of the article which in other parts also, as the judge finds, gives quite a false impression. For instance, so far from Mr Bromley thinking the plaintiff would not have done such a thing, this was quite untrue as Bromley when he heard from Evans about the £1 offer said “You must grab it before he withdraws”. As the judge says, the most material parts are untrue.
I turn now to the second libel alleged by the plaintiff in the statement of claim. Paragraph 5:
“In the issue of the said newspaper for June 26, 1958, the defendants falsely and maliciously printed and published of the plaintiff the words following: ‘No prosecutions after cemetery deal probe. By Daily Mail Reporter. No prosecutions will follow Scotland Yard’s investigations into the take-over bid for Ardwick Cemetery by Manchester Corporation. The decision not to take any action will be announced, I understand, in the next week. A full report by Fraud Squad officers is now with the Director of Public Prosecutions, Sir Theobold Mathew. It contains statements taken from a number of officials and persons who were consulted about the proposed purchase of the derelict cemetery. All interested parties have been cleared of any deliberate attempt to defraud’.”
Paragraph 6 is as follows:
“By the words set out in para. 5 hereof the defendants meant and were understood to mean that the plaintiff had by the reckless making of a statement which was misleading, false or deceptive induced or attempted to induce the shareholders of the Ardwick Cemetery Ltd. to enter into an agreement for disposing of their shares in the said company and that the plaintiff was guilty of an offence under s. 12(1) of the Prevention of Fraud (Investments) Act, 1939.”
It was argued for the plaintiff that the word “deliberate” justified the innuendo that although there was no deliberate attempt to defraud by the plaintiff there was a recklessness which would make him guilty of an offence under s 12 of the Prevention of Fraud (Investments) Act, 1939. On the face of it, as the judgment points out, this article was in favour of the plaintiff and I agree with the judge that the article would not be regarded by the reasonable reader as defamatory.
I would therefore uphold the learned judge in respect of two out of the three attacks made on the judgment on the issue of liability. He was justified in holding that negotiations were still pending and that the second article relied on by the plaintiff was not actionable; but, with respect, I agree with the submission for the plaintiff that the judge either disregarded or attached too little importance to the innuendo of the first article that the plaintiff had committed an offence under s 12 of the Prevention of Fraud (Investments) Act, 1939. There would, I think, be many informed readers to whom this would appear a serious matter and this omission will have to be taken into assessment when the amount of the damages is later considered.
The damages have to be assessed on what has been established as the actionable defamation contained in the first libel with its innuendoes and the real issue on the appeal has been what matters if any have to be taken into consideration in their mitigation.
The submissions of the plaintiff were that in assessing the damages on the basis of the defamation which he found to be actionable (limiting, as it would appear that he did, the full extent of the pleaded innuendo) the learned judge (a) wrongly took into consideration the effect on the plaintiff’s reputation of defamatory statements which had appeared previously and contemporaneously in many other newspapers as well as in the “Daily Mail”, which it was submitted were inadmissible as evidence for this purpose and which did not, in any event, affect the defendants’ liability for damages, and (b) wrongly held that there had been a complete clearance and vindication of the plaintiff’s reputation which limited the damage done to the plaintiff’s character to a period of approximately a fortnight following 18 June 1958. As I read the judgment, the learned judge did take both these matters into consideration with the undoubted effect that they greatly reduced the damages awarded. Before considering whether the judgment was right or not in these matters it will be necessary to refer as briefly as possible to the circumstances which arose.
When the sections of the Manchester Corporation Bill dealing with the Ardwick Cemetery came up for consideration in Parliament there was a Report of the Select Committee criticising the town clerk’s letter. This was given wide publicity on 17 May 1958, not only the “Daily Mail” but in many other papers throughout the country as well. The “Daily Mail” article of that date had large headlines “MPs Censure Town Clerk over Shares” and contained these passages:
“The town clerk of Manchester, Mr. Philip Dingle, has been censured by an all-party group of the M.P.s which investigated share-buying methods of the city council. A Select Committee yesterday expressed ‘unanimous strong disapproval’ of a letter written by Mr. Dingle to shareholders of a cemetery. It added: ‘They now draw the attention of the House of Commons to the facts’. This means there will probably be a debate on the town clerk’s action in the Commons after Whitsun. According to the committee’s report, this is what happened: Mr. Dingle wrote to shareholders owning an old cemetery at Ardwick, Manchester, saying the corporation wanted to use the land as playing fields. The corporation offered to pay £1 a share in compensation. Said Mr. Dingle ‘This is considered a generous offer’. Evidence taken by the committee revealed, however, that the break-up value of the shares was more than £1 each. Mr Dingle did not disclose this. Manchester Corporation has since bought most of the shares. The committee stated ‘The corporation obtained the shares by presenting a one-sided view which failed to disclose the true position of the company on a break-up.’”
Quotations of some part of the committee’s report were repeated on 12 June 1958, and on several subsequent occasions including the article complained of in the first libel alleged.
In so far as the article was an extract from the Select Committee’s Report, all the defendants satisfied the learned judge that they had acted without malice and they established protection under the Parliamentary Papers Act, 1840. Therefore there was in the article complained of defamatory matter which was not actionable because privileged, a little defamatory matter which was justified, and substantial defamatory matter to which there was no defence.
There had been published in other newspapers as well as the “Daily Mail” on 17 May 1958, and 12 June 1958, extracts from the Report of the Select Committee and many other newspapers had been put in evidence by the defendants in the course of the trial to refute the plaintiff’s allegation that the defendants acted maliciously and that they were campaigning against him. The same articles were sought to be used in mitigation of damages. The learned judge regarded other articles in the “Daily Mail” before the article complained of and prior and contemporary articles in other newspapers as having a bearing on the assessment of damages. He says that
“… in so far as the making of the report and the printing of extracts from it in various newspapers caused damage to the plaintiff’s reputation the defendants are not responsible for that damage … As one expects, one finds that this Report of the Select Committee, which expressed a strong view and strong disapproval of a local government officer, received substantial publicity. That must have done substantial damage to the plaintiff’s reputation. For that damage the defendants are not responsible, and the plaintiff cannot recover for it, therefore, in this action … As regards the proper measure of damages one has to remember that a good deal of damage had already been done by the publication of the report.”
Put in that way, that the defendants are not responsible for damage done by the publication of the report or by other newspaper articles, the statement is unobjectionable, but apart from the harm done by all the criticism over the Ardwick Cemetery transaction there is nothing at all against the character or reputation of the plaintiff and the position is that the judgment has completely vindicated the plaintiff of the imputations against him and there is no evidence remaining of anything to besmirch his character and no evidence at all of bad reputation. It would be a regrettable situation if a man who has cleared his character of the allegations made against it is to have his damages assessed on the false basis that his reputation is to be regarded, inferentially, as bad on the ground of the very allegations which the action has successfully refuted.
In the recent case of Truth (N Z) Ltd v Holloway ([1960] 1 WLR at p 1002) the Judicial Committee referred to a passage from Gatley on Libel and Slander with approval and acceptance as follows:
“GATLEY opens this chapter on republication and repetition with the quotation: ‘Every republication of a libel is a new libel, and each publisher is answerable for his act to the same extent as if the calumny originated with him’: See GATLEY ON LIBEL AND SLANDER (4th Edn.), p. 106. This case is a good instance of the justice of this rule.”
So I think is the present case before us.
It has not been the law that a man pays less for his defamatory remarks which he cannot justify merely because someone else has published previously or concurrently the same libel. If it were otherwise a defamed man might have no adequate redress, for the full range and extent of publication or republication can rarely if ever be traced and established and every offender brought to justice. A national newspaper such as the “Daily Mail” penetrates to many readers over a wide area some of whom may, most of whom probably will not, read any other paper broadcasting matter stated in a Report of a Select Committee of Parliament.
The Press properly have the freedom, if they wish to exercise it, to inform the public of the contents of such a report provided it is done in the public interest and not in any way maliciously but I see no ground for excusing or benefiting those who publish such matter if they repeat it or the defamatory substance of it in a form which is unprotected, still less if they enlarge and embellish the publication with falsehoods which are highly defamatory and completely untrue. When the libellous matter is held to be untrue then I fail to see how in justice or good sense it can be said nevertheless that a man’s character or reputation has to be judged on the basis that what he has disproved in a court of law has still to be regarded as damaging to his reputation.
In Gatley on Libel and Slander (5th Edn), p 620, the general rule is thus stated:
“The defendant cannot prove in mitigation of damages that some other person or persons have on previous occasions published the same libel, for the fact that others have defamed the plaintiff is wholly irrelevant.”
This rule is derived from Saunders v Mills. On that authority the other newspapers, though no doubt rightly introduced by the defendants as evidence to rebut malice, were not admissible in mitigation of damages and were not at the trial contended to be. The general rule so stated is established law and I see no ground for acceding to the defendants’ counsel’s request to hold that Saunders v Mills should be reversed even if it were possible so to do with an authority so old so frequently applied over the years. At common law a defendant could not in mitigation of damages give evidence to show that the plaintiff had already commenced an action or recovered damages against some other person or persons for other publications of the same libel. It was irrelevant. By the Law of Libel Amendment Act, 1888, s 6, liberty wasc given to newspapers to give evidence in mitigation of damages that the plaintiff had already recovered (or had brought actions for) damages or had received or agreed to receive compensation in respect of a libel to the same purport or effect for which the action being tried had been brought. By the Defamation Act, 1952, s 12, similar provision is made for all and not only for newspapers. These statutory provisions only emphasise the existence of the general rule of Saunders v Mills and in no way serve to prevent a plaintiff from receiving the full compensation for the wrong done to him but only to prevent him being paid the full damage more than once or at least to avoid an overlapping of damages taking into consideration that the matters for assessment may not always have common features affecting the amount of damages, some defendants may have apologised at once most generously or may have made the publication complained of in excusable circumstances whereas others may have acted maliciously and sustained their allegation to the end. Damages for libel of the same purport would clearly from the nature and extent of a publication not necessarily be the same against all defendants against whom liability was established except in the case of joint tortfeasors.
Libel is a tort but the damage which it may do does not from its nature resemble damage by physical injury to the body. In physical injury the damage and loss actually inflicted is constant and should be the same in amount whether one person is liable for it or more. It is not so in libel. What A has published may never have been seen by B’s readers and as the law stands no one could be called in mitigation of damages to say that he had read precisely, or the substance of, what B had said either on the same day or on some prior occasion. It seems to me to be a salutary and practical rule without which it might be difficult or impossible for a plaintiff to get adequate redress for the wrong done him. I find much force in the argument of counsel for the plaintiff that a previous publication of the same libel cannot be used to establish a bad reputation. Indeed, as the law stands it is not possible to adduce evidence of particular acts of conduct which could adversely affect a plaintiff’s reputation. Ever since Scott v Sampson in 1882 a defendant has been allowed to give evidence of a plaintiff’s general bad character only and not of specific facts and circumstances which a judge or jury might think should establish his character to be bad. Whether this is logical or desirable or not it is long established and it serves at least to show that any specific allegation which might be said to be detrimental to a man’s character could not be used to condemn him—as it is sought to be used here—if it was proved in the course of the trial to be untrue. Where evidence of general bad reputation is called, a plaintiff may I apprehend refute it if he can by evidence of general good reputation and a judge or jury has to decide. This particular allegation of misconduct is refuted and the plaintiff’s character and reputation stand where they did.
Scott v Sampson has stood since 1882 and approved in this court nearly fifty years later in Hobbs v Tinling where Scrutton LJ said ([1929] All ER Rep at p 40;[1929] 2 KB at p 18) that the judgment of Cave J concurred in by Mathew J has been accepted as an accurate statement of the law. Certainly this court must so regard it. The learned lord justice continued ([1929] All ER Rep at p 40;[1929] 2 KB at p 18):
“On the other hand, the defendant may not give evidence of rumours at the time of publication to the same effect as the libel. Nor may the defendant give evidence of specific facts and circumstances to show the disposition of the plaintiff, as distinct from general evidence that he has that reputation. If those specific facts are to the same effect as the libel, which he has not justified, he cannot justify under the plea of mitigation of damages.”
In Hawkins v Express Dairy Co Ltd Stable J took into consideration a bad reputation which the plaintiff himself had revealed in evidence showing “misconduct during his term of service with his employers closely connected with the subject-matter of the libel”. The evidence showed fraud by the plaintiff known to and indeed participated in by a number of servants of the company with whom he worked. I see no reason to differ from Stable J. There the bad character or reputation was established by the plaintiff and could not be overlooked. The present case is almost the converse of that. Here the substance of the libel has been disproved and nothing remains against the plaintiff’s character and reputation.
The only support for the view taken by the learned judge cited to us on behalf of the defendants was a passage in the judgment of Lord Hanworth MR in Chapman v Lord Ellesmere ([1932] All ER Rep at p 230;[1932] 2 KB at p 457) where the Master of the Rolls said:
“For these reasons it seems that the right course will be to direct a new trial as to paras. 3 and 4. The jury should be directed that they cannot impeach the decision which was reached; that the publication was in the ordinary course of the news agencies’ and newspapers’ business; and was one which must in any case have become known to a very large circle through the protected publication of the ‘Racing Calendar’ on Oct. 2.”
I am not clear, with respect, what the learned Master of the Rolls had in mind. He cannot be held to have thought that at the future trial the protected publication of the “Racing Calendar” could be put in evidence, for that would be contrary to established authority which was not, it would appear, challenged or argued in the case. I think that it was an obiter dictum and is but little guide in the circumstances to the decision in the present case.
In the course of the argument reference was made to Speidel v Plato Films Ltd, an interlocutory appeal recently before this court and now on appeal to the House of Lords. The case raised points of pleading and I think ultimately of substance which do not in any way arise in the present case. The defendants here did not seek to give in evidence any specific facts or circumstances outside the libel alleged or the substance of it to show the plaintiff’s true character or to call evidence of bad reputation. All that is said, as I understood it, is that having regard to what was published of the Parliamentary Report, both contemporaneously in the protected part of the offending article in the “Daily Mail” and in articles prior thereto in the “Daily Mail” and other newspapers, which was the substance of the libel and nothing independent of it, the learned judge had to infer and was justified in inferring that the plaintiff’s reputation had been lowered thereby and therefore in awarding damages he had to treat the plaintiff as a man with a sullied reputation. For the reasons which I have already given I do not think that any such inference can be relied on. The plaintiff in this action has proved the foundations of any such inference to be false.
I do not think either that the question of the character or reputation which a man has or ought to have and which of these is the relevant consideration in an action of defamation calls for consideration here. No one suggests anything against the plaintiff except the facts and circumstances which have been in controversy in this case. I am prepared to say, as I think should be said, in justice to the plaintiff that he has cleared his character. I feel that it is much less satisfactory to an aggrieved man merely to say that he has cleared his reputation for that in itself might be said to give rise to an innuendo. I am therefore of opinion that there was no evidence, when the time came for the damages to be assessed, that the plaintiff had either a bad character or a bad reputation so as to limit in any way the damages to be awarded to him for the wrong done by the defendants’ statements which defamed him. He had no doubt been personally hurt and outwardly damaged by assertions of others but the action has established that they were false and did not impeach his character or his reputation. If this is right then the plaintiff’s submission that the learned judge misdirected himself in this respect in assessing damages succeeds and it fundamentally affects the amount to be awarded.
I think, too, with respect, that the learned judge went too far in favour of the defendants when he held that there had been clear and complete vindication of the plaintiff by 2 July. It would have been of real benefit to the plaintiff if on or about that date there had been a full and frank apology by the defendants and a retraction of all of which the plaintiff could legitimately complain. Merely to say “There will be no prosecution in the case of the neglected graveyard” and to head the article “Town Clerk Cleared” and to set out what the Attorney General and Manchester Corporation said, still leaves open the question: “Yes, but what do you say?”. Even the mind of a newspaper—which may be made up of the minds of several individuals—could not overlook the hurt which the statements, true or untrue, must have done to the plaintiff, his anguish of mind and distress, and yet not a word of reinstatement or of regret nor an indication that it gave them pleasure that one in so important a position had been restored to the position of respect and confidence which his important office required.
On behalf of the defendants it can be said that they acted without malice in publishing extracts from the Report of the Select Committee and it was that report which brought the matter into the news and that the learned judge has found that the reporter, the third defendant, “did not doubt Mr Bromley’s word in the least” and that he, the judge, had no doubt that “what the defendants reported was what Bromley had in fact said but there were many untrue statements.” Against them is the absence of any apology until very belatedly when, of little avail, one was inserted by learned counsel in the defence and this notwithstanding that the matter had been kept in the news in the “Daily Mail” in one way or another over a prolonged period commencing on 17 May 1958, until 13 November 1958, altogether on some seventeen different dates with reference often on more pages than one.
However, these and perhaps other matters of a minor character complained of by the plaintiff were for the judge and this court would not intervene merely because it thought the amount low. For the reasons which I have stated I would hold that the learned judge failed in the assessment of damages to take adequately into account the second part of the innuendo which alleged that the plaintiff had committed a criminal offence; that he concluded that the period of damage was much less than it was; and above all that he assessed damages on the basis that the plaintiff had a bad reputation prior to the publication complained of by reason of the publicity given to the report. These are in my opinion vital matters. We were properly referred to what was said by Lord Wright in Davies v Powell Duffryn Associated Collieries Ltd (No 2) and by Viscount Simon in Nance v British Columbia Electric Ry Co Ltd, for direction by which an appellate court should be guided in reviewing damages. If the damages were assessed on a wrong basis at least in part, as I with every respect have had to conclude, then there is no doubt that they call for re-assessment. Damages in such a case as this are hard to assess. I should have thought a jury would have been, with their respective viewpoints, the right tribunal for the task. My two brethren have assessed the damages at £4,000, which I accept although my own unaided assessment would have been somewhat higher, based perhaps on a view of the innuendo more favourable to the plaintiff’s claim but primarily on the injury done to one holding the high and important office of town clerk of a great city by the defendants’ readiness to exploit the matter in the way they did and then by their unwillingness, or at least failure, to see and to redress the wrong they had done.
I would therefore allow the appeal and substitute a judgment for £4,000.
HOLROYD PEARCE LJ.
Counsel for the plaintiff contends first that the learned judge was wrong in holding that the second libel was not defamatory. It is conceded that the question depends largely on first impression. I, too, share the learned judge’s view of it. Secondly it is argued that the learned judge wrongly mitigated the damages by reason of injury to the plaintiff’s reputation by the publication in the “Daily Mail” and in other newspapers of the Report of the Select Committee.
The judge dealt with this question in the following passages. He said:
“The defendants put in evidence more or less contemporaneous articles in other newspapers. Those have been read and they are, I suppose, mainly relevant to the assessment of damages and, indeed, they are important on one element of the assessment of damages, as I will endeavour to explain later … Finally, on the issue as to the assessment of damages, here again the Report of the Select Committee is something which happened, an event which happened, and, in so far as the making of the report and the printing of extracts from it in various newspapers caused damage to the plaintiff’s reputation, the defendants are not responsible for that damage, and, again, any amount of comment would have very little materiality … How much damage is attributable to so much of the libel as is neither privileged under the Act nor true? So far as the article contained extracts from the Select Committee’s Report, if they were doing that bona fide, without malice, that is privileged and, in so far as what was said was true, that is, of course, justified. One has to isolate the indefensible part of the libel from the rest … As one expects, one finds that this report of the Select Committee, which expressed a strong view and strong disapproval of a local government officer, received substantial publicity. That must have done substantial damage to the plaintiff’s reputation. For that damage the defendants are not responsible, and the plaintiff cannot recover for it, therefore, in this action … This very serious stigma had been cast on the plaintiff and added a lot, in my view, to the damage flowing from the original Report of the Committee. I would say that probably the Report of the Committee, while it caused much damage—there are various ways of putting it—one way of putting it is that the article of June 16 put the meat on the bones, in this way, that the committee merely reported that the shares were acquired under value, but this article in the ‘Daily Mail’ added the meat to it by saying that the true value was more than twice what was offered. As regards the proper measure of damages, one has to remember that a good deal of damage had already been done by the publication of the report.”
It is argued with force that the evidence of other newspapers which published the report was not admissible in mitigation of damages. They were only (and quite properly) put in evidence on the question of malice to show that the “Daily Mail” was not maliciously conducting an individual campaign. They could not properly be proved in mitigation of damages (see Saunders v Mills; and see also per Scrutton LJ in Hobbs v Tinling ([1929] All ER Rep at p 40;[1929] 2 KB at p 18)).
If the judge’s observations, stated previously, mean that he was doing no more than isolating the publication of the report in the “Daily Mail” and other newspapers from the actionable matter in respect of which he had to give damages and leaving the former out of account when he did so, he was admittedly dealing correctly with the matter. If, however, he was mitigating the damages on account of injury done to the plaintiff by the publication of the report he was not, in my judgment, entitled to do so.
In Harrison v Pearce ((1858), 1 F & F at p 569), a case of libel, Martin B, said:
“The plaintiff has a right to recover against this defendant all the damage which the jury think arose from his wrongful act”.
It is only in respect of the wrongful act that the damages are assessed, but the defendant in a libel action cannot rely on the argument that since others have thrown mud at the plaintiff he, the defendant, has caused very little harm by throwing some extra mud. Truth (N Z) Ltd v Holloway, to which Sellers LJ has referred, makes this plain. The fact that other persons on previous occasions have published the same libel has been held irrelevant (Saunders v Mills). Such evidence is inadmissible, even when coupled with evidence that the plaintiff took no steps to contradict the libel (Pankhurst v Hamilton). Nor can the existence of rumours corresponding to the libel be proved (see per Cave J in Scott v Sampson ((1882), 8 QBD at p 504), and the cases there cited). Cave J said:
“… it would seem that on principle such evidence is not admissible, as only indirectly tending to affect the plaintiff’s reputation. If these rumours and suspicions have, in fact, affected the plaintiff’s reputation, that may be proved by general evidence of reputation. If they have not affected it they are not relevant to the issue … both the weight of authority and principle seem against the admission of such evidence.”
Cave J goes on to make it plain that it is for injury to his reputation that a plaintiff obtains damages, and if his reputation is bad he recovers smaller damages since the injury is less. The learned judge does not specifically differentiate between reputations that are deservedly or undeservedly bad. He is dealing with the generality of cases where a man, as a rule, has approximately the reputation that he deserves. Nevertheless the general reasoning of the judgment makes it clear that it is reputation, not disposition, that is to be considered. He says ((1882), 8 QBD at p 504):
“As to the third head or evidence of facts and circumstances tending to show the disposition of the plaintiff, both principle and authority seem equally against its admission. At the most it tends to prove not that the plaintiff has not, but that he ought not to have, a good reputation, and to admit evidence of this kind is in effect as was said in Jones v. Stevens to throw upon the plaintiff the difficulty of showing an uniform propriety of conduct during his whole life. It would give rise to interminable issues which would have but a very remote bearing on the question in dispute, which is to what extent the reputation which he actually possesses has been damaged by the defamatory matter complained of.”
From that judgment it is plain that it is the evidence of the plaintiff’s bad reputation and not the evidence of rumours or incidents that might make it bad which is admissible in mitigation. That judgment has been uniformly treated as accurate in the Court of Appeal as well as in courts of first instance (see Hobbs v Tinling, and Speidel v Plato Films Ltd). It is not open to this court to take a different view.
Can it here be said that there was some evidence of the plaintiff’s bad or partially bad reputation? In my judgment there was none. Evidence of bad reputation must be properly proved. It is a grave matter. One is not entitled to assume without evidence that the plaintiff’s reputation must have changed in the four weeks following the publication of the report. As the months went by such report if uncontradicted would no doubt have its effect on his reputation especially if it was succeeded by other similar matters; and the plaintiff’s reputation might in due course become bad and be proved against him. No doubt the public unmasking of a villan or a conviction in a court of law will have a more immediate effect. When, however, the defendants’ libel was published the plaintiff was a man of good reputation who had recently had something damaging attributed to him. A man’s reputation in the sense in which the word is used in civil or criminal courts does not alter daily as good or bad deeds are ascribed to him. It is the judgment of his fellows on his general life over a period. Any man is presumed on general principles to have a good reputation until the contrary is proved. Here the contrary was not proved and there is no evidence on which we should be entitled to say that the plaintiff had acquired a bad or partially bad reputation by the date of the libel.
In Speidel’s case there was a consideration of matters on which under the machinery of litigation the defendants may lead evidence in mitigation. But a consideration of when and in what circumstances the defendants can introduce evidence to mitigate their damages is not to the point in the present case. The publication of the report was fairly and squarely before the court. The plaintiff presented the history of the facts to the judge and asked for damages for the wrong that the defendants had done him. That history included the publication of the report, but nevertheless the defendants are not thereby entitled to rely on that publication for the purpose of mitigating their damage. It is for such purposes irrelevant. In my opinion the learned judge was influenced in some degree by a view that in comparison with the publicity given to the report the defendants did not add a great deal; and that the damages should be thereby diminished. As a result he estimated the damages at a figure which I respectfully think was too low.
The plaintiff further complains that the learned judge wrongly failed to decide whether the innuendo in the first libel was made out. But in my judgment he was entitled to say, as he did:
“The broad effect of the libel … is that the plaintiff while he was in negotiations with the directors of Ardwick Cemetery Ltd., went behind the backs of the directors and sent a false or at any rate misleading letter to the shareholders and thereby induced them to part with their shares at a price which was less than their true value and perhaps it can be said also thereby implied that there was an offence under s. 12, which is so to speak the serious section of the Prevention of Fraud (Investments) Act, 1939.”
When, as here, the words in their ordinary meaning are defamatory and unjustifiable the question whether the innuendo is made out is only relevant to damages. The imprecise finding of the judge on the question of the innuendo is adequate for that purpose and is probably truer than a more precise finding one way or the other would be. In general the innuendo was not made out, but it might well be that to some of the readers the libel conveyed the effect pleaded in the innuendo.
Fourthly the plaintiff argues that the judge in dealing with the part which the defendants sought to justify wrongly severed the allegation that the parties were still in negotiation, holding that it had been justified, and failed sufficiently to take into account that the real gist of the libel, namely, all the rest of the libel dealing with the value of the shares and Mr Bromley’sd various exaggerations and untruths had been the subject of an unsuccessful attempt to justify. In my judgment that point is not made out. [His Lordship gave his reasons for this conclusion, and continued:] Finally counsel for the plaintiff argues that the judge misapprehended the facts in holding that on 2 July there was “complete” or “ample” vindication and that therefore he had only to award substantial damages in respect of a period of a fortnight. I venture to think that the judge was not justified in considering the article of 2 July to be an “ample” or “complete” vindication. The article was headed “Town Clerk Cleared”. A perusal of the details showed that the plaintiff was cleared of the threat of prosecution under s 12. The article starts in heavy type—”There will be no prosecution in the case of the neglected graveyard”. There follows the fact of the Attorney General’s announcement; and the article sets out his statement to the effect that
“there is no ground for concluding that the latter contained any false misleading or deceptive statement or that there was any dishonest concealment of material facts. Consequently there are no grounds for a prosecution for an offence against s. 12 of the Act.”
The article also sets out the corporation’s defence as given in their booklet. But the corporation were clearly concerned to put the best face on their town clerk’s action on their behalf and their view could hardly be thought by readers to be impartial. Therefore it is not correct to say that the plaintiff had been completely vindicated on 2 July. He had been acquitted of dishonesty which would render him liable to prosecution, and it had been made clear that his own council were saying that their offer for the shares was generous, but readers were reminded in that same article that the Board of Trade alleged that the break-up value of the shares was greater than £1 each and that “some shareholders said later that the stock was worth more than £2”. An important matter was left undecided, namely, whether he had without actual dishonesty succeeded in getting shares from the shareholders behind the chairman’s back for a sum less than their true value. Such behaviour would be sharp practice. Though not unknown in some circles, it would be deplorable in a town clerk acting for a very large and important corporation.
That article of 2 July gave an opportunity for the “Daily Mail”, as the unbiased person who had put forward the accusations of the plaintiff’s critics, to assess whether the defence put forward by the corporation in their booklet had been made out. It would have been easy (but perhaps distasteful) for the defendants to say that there was no sharp practice, that the accusations of the critics had all been successfully dispersed, that the figures put forward by them had been inaccurate, that the offer had been generous, and to add, for good measure, an apology to the plaintiff; but they did not do so, and thereby at their own risk they allowed a serious part of the damage they had done to continue. There has never been any apology for the untruths or any recantation of them. Indeed, the fact that the defendants attempted to justify them was the antithesis of recantation. The partial apology in a pleading which attempted to justify a large amount of defamatory untruths was no apology at all. It is inevitably, in such a context, mere faux bonhomie.
It is argued by the defendants that the error with regard to “complete” vindication is not a matter which would justify altering an assessment of damages which is compounded of so many factors of varying importance. However, the question of vindication is a very important matter. It affects the plaintiff in the extent of his injury and the defendants in an assessment of their conduct. They were acquitted of malice; but nevertheless they should have taken all reasonable steps to counteract the damage that they had caused and to prevent it from continuing. No valid grounds are put forward for their failure to do so. As a result the damage continued long after 2 July. Not until the judge gave judgment was there any pronouncement by any impartial person that the town clerk had not unworthily behind the directors’ backs obtained the shares for less than their true value but had in fact made “a generous offer to the shareholders which they were very fortunate to get”.
I agree with the judgment of Sellers LJ and I would accordingly substitute for the figure of £1,100 the figure of £4,000.
DEVLIN LJ.
The main argument in this appeal has been devoted to counsel for the plaintiff’s submission that Pearson J was wrong in taking into account the fact that the plaintiff’s reputation would in any event have been injured by the Report of the Select Committee (the publication of which by the “Daily Mail” was privileged and which did not therefore sound in damages) and by reason of this diminishing the damages which he would otherwise have awarded to the plaintiff. I think that the judge did diminish the damages on this ground and it does not appear that he was ever asked to do otherwise. Counsel for the defendants has not contended that the point is not open to the plaintiff; but the omission means that we have not got the benefit of the judge’s conclusion on a difficult point.
The argument for limiting the damage can be put in two ways. First, it can be said that looking at the defamatory article by itself and without regard to what had gone before, it consisted of Mr Bromley’se story, much of which was indefensible and for which the defendants have to pay, and of a statement from the Select Committee’s Report, which was defensible and for which therefore the defendants have not got to pay. The learned judge appears to be looking at the matter in this way, for in his judgment he says:
“How much damage is attributable to so much of the libel as is neither privileged under the Act nor true?… One has to isolate the indefensible part of the libel from the rest.”
On this view it is not a question of mitigating the damage but simply of ascertaining for how much of the damage done the defendants are responsible.
The other way is to treat the question as one of mitigation of damage and to assert, as the defendants do, that on the date when the libel was published the plaintiff already had a tarnished reputation which must be taken into account as diminishing the damages that would have been awarded if his reputation had been unblemished. Under the first head, the prior publication of the report is irrelevant, and can be conceded as inadmissible; under this head it is essential and involves going back to the date when the committee’s report was first published, that is 17 May and relying on the fact that it received widespread publicity not only in the “Daily Mail” but also in all the other national newspapers. The contents of the other national newspapers are summarised by the judge in his judgment. He concludes that the report of the committee received substantial publicity which must have done substantial damage to the plaintiff’s reputation: “For that damage the defendants are not responsible and the plaintiff cannot recover for it therefore in this action.” He says the same thing earlier in his judgment; and later, in the paragraph in which he fixes the damages, he begins:
“As regards the proper measure of damages, one has to remember that a good deal of damage had already been done by the publication of the report.”
Counsel for the plaintiff says that he had to accept the other newspapers as admissible on the issue of malice because they were being properly used to show that the “Daily Mail” was not conducting a special campaign of its own against the plaintiff; but he disputes that they were admissible on the issue of damage.
Before considering separately these two limbs of the argument, it is convenient to refer to Saunders v Mills, because that was the authority on which counsel for the plaintiff chiefly relied as supporting his argument as a whole. In this case the plaintiff, an attorney, claimed damages for a libel published in a newspaper. At the trial the defendant tendered evidence that he had copied the libel in substance from the “Observer” newspaper and that many other journals had published the same statement. Tindal CJ admitted the “Observer ((1829), 6 Bing at p 220)”… as showing there was less of malice than if the defendant had been the original composer …” but declined to receive evidence of a similar publication having been made in other newspapers. This ruling was upheld by the Court of Common Pleas in Banc.
Counsel for the defendants has submitted that we should not approve Saunders v Mills. I think that we ought to do so, not only because it is a decision of long standing, but because Parliament has treated it as being good law and has passed enactments which are insensible except on the hypothesis that the principle on which it is based is part of the law of the land. I shall refer later in this judgment to the statutes of 1888 and 1952 which subject to certain limitations permit evidence to be given of other publications of the same libel.
At first sight, it looks as if Saunders v Mills introduced into the law of libel a sort of extension of the rule applicable to joint tortfeasors. Separate publications of the same libel are of course separate torts; but the principle in Saunders v Mills, it may be thought, is that notwithstanding that they are separate torts, one defendant is liable for the whole of the damage flowing from the libel just as he would be if he were one of several participators in a joint tort. But that is not, I think, the reasoning behind Saunders v Mills nor its effect. In the first place, one publisher will not be liable for all the damage done by another. If a libel is published simultaneously in the national Press and in a parish magazine, the damage payable by the latter will not be assessed on the basis of the circulation of the former as it would in the case of a joint tort. This is shown by Harrison v Pearce. In this case a certain writer composed a statement defamatory of the plaintiff and had it published as a placard and also as an advertisement in the defendant’s newspaper. The defendant contended that part of the plaintiff’s damage was due to the publication in the placard for which the plaintiff was bringing another action. Martin B, said that the jury could not take into account the other action; the plaintiff had a right to recover against this defendant all the damage which the jury thought arose from his wrongful act. But he goes on to say that the jury is not to assume that all the damage necessarily arose from the defendant’s publication.
The reasoning behind Saunders v Mills and Harrison v Pearce is, I think, simply that the damage done by other publications is deemed to be irrelevant. So in one sense it is. If each publisher is thought of as having his own circle of readers or listeners, he will be made responsible for the publication to them but not beyond; and it is irrelevant to say that some other publisher will be responsible for another publication of the same libel to another circle. But in defamation the damage goes beyond the harmful effect on the minds of those who receive the publication at first hand. There has to be taken into account as well, for example, the element of mental distress which does not increase proportionately with the extent of the publication. More important, there is the slow spread of the libel beyond the immediate circle; and if eventually the whole public mind is permeated, no one can identify each separate source of infection. The damage due to mental distress and to widespread repetition constitutes, it may be said, an indivisible injury for which the damages cannot be separately assessed as between different publications of the same libel; and therefore each wrongdoer whose act is a substantial cause of the injury must pay for the whole. “Each publisher is answerable for his act to the same extent as if the calumny originated with him”: this statement of the law in Gatley on Libel and Slander (5th Edn), p 101, has recently been approved in Cadam v Beaverbrook Newspapers Ltd and in Truth (N Z) Ltd v Holloway ([1960] 1 WLR at p 1003).
Thus, where a libel was published by several defendants the common law permitted the plaintiff to recover damages several times over in respect of those elements of damage that were common to each libel. Each jury had to be directed to consider such elements as mental distress and the spread beyond the immediate circle as if the libel under consideration was the only one in the field. (Obviously therefore it would not be permissible mitigation of damage to say that some of the distress and some of the spread whose source could not be identified would or might be due to some other privileged publication.) The common-law position has been partly alleviated by legislation which foreshadowed to a limited extent the solution that was later applied for joint tortsf in 1935. The Law of Libel Amendment Act, 1888, s 5, provide that where actions are brought in respect to the same or substantially the same libel against two or more defendants, the actions may be consolidated and tried together; and the damages given in respect of the libel apportioned between the defendants. By the Defamation Act, 1952, s 12, enlarging the scope of a similar provision previously made in s 6 of the Act of 1888, the defendant is permitted to give in evidence in mitigation of damages that the plaintiff has recovered damages or brought actions for damages or received or agreed to receive compensation in respect of publications to the same effect as that sued on. The distinction between this form of relief and that which is now granted to joint tortfeasors is that the joint tortfeasor has the right to initiate a claim for contribution while the defendant under the Acts of 1888 and 1952 cannot get any relief at all unless the plaintiff chooses to sue more than one publisher.
I turn now to consider specifically the first limb of the argument which really amounts to a contention that the damage done by the defamation ought to be notionally apportioned and that the defendants should pay only for so much of it as was caused by the unprotected part of the publication. In my judgment the fact that a passage in the defamatory article is protected by privilege is irrelevant in the assessment of damages in this case. The foundation for this conclusion is that the report and Mr Bromley’s story are as a piece of defamation essentially one and the same. The defamatory essence of them both is that the plaintiff was guilty of sharp practice. The story is worse than the report because it goes further but in substance they contain the same libel. Privilege attaches to form or occasion but not to substance. What a Member of Parliament says in the House of Commons is privileged; the repetition of the very same words outside is not. A report of a judicial or parliamentary proceeding may be privileged, but if the substance of the matter be cast into another form, the publication is subject to the ordinary law. The object of the privilege is so that the public can obtain a fair report of what is said and decided in Parliament and in courts of law; it is not to confer a licence on anyone to handle the subject-matter thereafter in whatever way he wishes. If Mr Bromley’s story had been printed by itself (and I shall assume for this purpose that it goes no further than the report) it would be no answer to an action for libel to say that the same thing had already been said in the report any more than it would be an answer by a Member of Parliament who spoke slander at a public meeting to say that he had said or could say the same or worse with impunity in the House of Commons. If Mr Bromley’s story by itself is unprotected, it cannot alter or diminish the defendants’ liability if they publish with it as part of the same article an extract from a protected report.
This conclusion appears to me to be in accordance with, and indeed to exemplify, a fundamental principle in the law of damage. Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law. If, for example, a ship is damaged in two separate collisions by two wrongdoers and consequently is in dry dock for a month for repairs and claims for loss of earnings, it is usually possible to say how many days’ detention is attributable to the damage done by each collision and divide the loss of earnings accordingly.
These are elementary principles and readily recognisable as such in the law of damage for physical injury. It is not so easy to distinguish and apply them in the law of damage for loss of reputation. It may be easier to do so, I think, if one takes as an illustration separate publications to one man only and a piece of special damage flowing from them. If a master during the course of a morning hears the same slander about the plaintiff, his servant, from four different defendants, he may after he has heard them all decide that coming from four sources it must be true and he may dismiss the plaintiff in the afternoon. Subject to any defence he may have, each defendant is severally liable for the whole of the financial loss which the plaintiff suffers from the dismissal. If one defendant has no defence, it will not help him at all that the other three can make out a good case on the grounds of qualified privilege.
The same principle must apply to general damage for loss of reputation. If a man reads four newspapers at breakfast and reads substantially the same libel in each, liability does not depend on which paper he opens first. Perhaps one newspaper influences him more than another, but unless he can say he disregarded one altogether, then each is a substantial cause of the damage done to the plaintiff in his eyes. A fortiori, when a reader of the “Daily Mail” picked up the issue for 16 June 1958, and read the article complained of, it is not possible to say how much damage was done by the privileged extract from the report and how much by Mr Bromley’s story; all that can be said is that they combined to injure the plaintiff’s reputation.
In the application of these general principles to damage done by a libel there are two qualifications to be borne in mind. Each of them is illustrated by an authority relied on by counsel for the defendants. The first is that damage done by two distinct libels is separately measurable and it is immaterial that the two libels form part of the same publication. The second is that the damage done by the publication of a libel must be measured, albeit roughly, in accordance with the number of people to whom the publication is made. A man’s reputation is in the keeping of others and it is by words uttered to those others that it is injured; the larger the number to whom the publication is made the greater the injury. If the libel is spread from mouth to mouth by a series of utterances, the damage done by each must be separately assessed; if the publication consists of only one utterance to a large number, there can be only one assessment but it must be made in accordance with size.
The first of these two points is illustrated by a dictum of Earl Loreburn in Adam v Ward ([1917] AC at p 321), on which counsel for the defendants relied. His Lordship said:
“I will only add that when one part of a libel is held to be protected by privilege and the other part not protected the jury ought to be told that they cannot give damages in respect of the first part at all, unless they are satisfied that it was malicious …”
It does not appear from the facts in this case that the libel was divisible and I think that his Lordship’s observations must have been directed to an argument advanced by Sir John Simon KC in the following terms ([1917] AC at p 316):
“A case might conceivably arise in which a document contained two subject-matters, both containing defamatory statements, so wholly divorced from one another that the judge might rule that the occasion was privileged as regards one subject-matter but not as regards the other, but the point has never arisen for decision, although it has been mooted in several cases.”
When, as in this case, the libel is essentially one and the same, the position is illustrated by an old case. In Lewis v Clement the plaintiff was an attorney who had brought proceedings in the Insolvent Debtor’s Court. In the course of the proceedings the judge “deprecated in strong language the conduct of the plaintiff”. The defendant’s newspaper published the report of the proceedings under the heading “Shameful conduct of an Attorney”. The plaintiff brought an action for libel against the defendant. Abbott CJ held, delivering the judgment of the Court of King’s Bench, that without deciding whether the report of the proceedings was privileged, the claim succeeded because the defendant had not confined himself to what actually passed in court but had prefaced the statement with the words “Shameful conduct of an Attorney” and therefore taken on himself to make that allegation concerning the plaintiff. The court awarded a writ of inquiry to assess the damages and as a result of the inquiry judgment was entered for £500. The defendant brought a writ of error in respect of this assessment and in 1882 the matter came before the Court of Exchequer Chamber, where it is reported under the heading of Clement v Lewis. The first argument advanced on behalf of the defendant was “that the heading of the libel imputed no misconduct beyond that which was developed in the ensuing statement”. The argument failed, the court on this point affirming the judgment of the court below.
The other point is illustrated by a dictum in Chapman v Lord Ellesmere, on which counsel for the defendants also relied. In this case the plaintiff, a horse trainer, sued in respect of the publication of a decision of the stewards of the Jockey Club which was a libel on him. The plaintiff sued the stewards (and their agents, Messrs Weatherby) and “The Times”, the stewards in respect of three publications and “The Times” in respect of one. The first publication was the publication by the stewards of their decision to the Press Agencies on 29 September; the second publication was that in “The Times” on 30 September and the stewards and “The Times” were alleged to be jointly liable for this; and the third publication was in the “Racing Calendar” on 2 October for which the stewards as proprietors of the “Racing Calendar” were held to be responsible. The publication in the “Racing Calendar” was held to be privileged but that to the News Agencies and in “The Times” was held not to be privileged. The Court of Appeal considered that the damages awarded in respect of the first and second publications were excessive and ordered a new trial. Lord Hanworth MR referred to the directions which should be given to the jury in the new trial and said ([1932] All ER Rep at p 230;[1932] 2 KB at p 457):
“The jury should be directed that they cannot impeach the decision which was reached; that the publication was in the ordinary course of the news agencies’ and newspapers’ business; and was one which must in any case have become known to a very large circle through the protected publication of the ‘Racing Calendar’ on Oct. 2.”
This is in the nature of an obiter dictum, though one made by a careful and learned judge, because the point did not strictly arise at that stage and does not appear to have been argued. I think with great respect that it is incorrect in form. To admit evidence about the contents of the “Racing Calendar” would be contrary to what was decided in Saunders v Mills, an authority that was not considered or overruled: moreover the “Racing Calendar” was published after “The Times”. But I am far from saying that in substance the proposed direction would not be correct. Lord Hanworth MR must have meant that the damages should be reduced in consideration of the fact that a number of the readers of “The Times” would also be readers of the “Racing Calendar”; if so, they were persons to whom a protected publication could be made. The vehicle of publication, whether it is the “Racing Calendar” or “The Times”, is immaterial. As I have said, the law requires and permits that damages should be measured by the extent of the publication. A jury can properly be directed to give less damages against a paper which has a circulation of one hundred than against one that has a circulation of one thousand. It may be therefore that if a proportion of readers of “The Times” could properly have received the news anyway as a privileged communication to them, they can be counted out when the extent of the circulation is being considered. Whether this is so or not—and it is unnecessary for me to offer any firm opinion on it—it raises a different point from the one which we have to consider in this case. In this case the privilege depends on form and if in amplification there is a loss of form, there is a total loss of privilege. There is no scope for a division into “privileged” and “unprivileged” readers.
Accordingly, the defendants are liable to pay for the whole of the damage to the plaintiff’s reputation caused by the publication in the “Daily Mail”; and on that issue—I am still not considering the effect of antecedent damage to reputation—no evidence is admissible of other publications of the same libel whether privileged or not. The defendants are liable for what was said in Mr Bromley’s story, neither more nor less; since the story contains the whole libel, they must pay the whole damage that flows from it. The extent of the damage done is to be measured in accordance with the circulation that the “Daily Mail” is presumed to have. The damage is limited to readers of the “Daily Mail” who received the libel direct from the defendants and to those others to whom those readers may be assumed in due course to pass it on. That is the extent of publication which has to be considered. The trial judge had evidence before him that the same libel reached a number of other readers by means of publication in other newspapers. That evidence he would be right to ignore; the defendants have not to pay for that; the damages assessed against any one national newspaper are to be assessed on the basis of its circulation and not on the basis of the circulation of all national newspapers combined. Counsel for the defendants has submitted that this is all that the learned judge was doing—that he was taking note of the fact that the plaintiff’s reputation had been injured by other publications and was saying that the defendants were not responsible for the total injury done by all the publications put together. I have set out the relevant extracts of the judgment. It is difficult to be sure of interpreting them accurately since the point was never argued before the judge, but I think that he is doing more than merely directing himself to ignore irrelevant evidence. I think that he is assessing the defamatory excess in Mr Bromley’s story over and above the defamation in the report. If he is not doing that, then I think with respect the figure of £1,100 is inordinately low and ought to be altered.
All that I have said hitherto is based on the supposition that the report and Mr Bromley’s story were published contemporaneously. They were published together in the article complained of and I have been dealing with the legal position on the supposition that that is the only publication that can be looked at. I must now turn to consider the second limb of the argument, that is, that at the time of the publication complained of the plaintiff already had a tarnished reputation because of the publicity given in the national Press, including the “Daily Mail”, to the Report of the Select Committee a month earlier.
Here again we are concerned with a fundamental principle of the law of damage which has to be applied with modifications to damage done by libel because injury to reputation is slippery to handle compared with bodily injury. In cases of bodily injury the principle is simply applied. Where there is not one indivisible injury but two separate injuries, the second wrongdoer—at any rate in cases where the legal consequences of the first injury are complete and ascertained before the second injury is done—is liable only for the excess of damage done by the second injury. That excess is not necessarily smaller than the damage done by the first injury. The earning capacity of a man who has lost an eye may be diminished by perhaps ten per cent. If he loses his other eye, his earning capacity will probably disappear altogether. A defendant who is responsible for the loss of the second eye will have to pay for much more than half of the consequences of total blindness. In the example I have taken, he will have to pay for ninety per cent of the loss of earnings; but he will not have to pay the full one hundred per cent because he can properly plead that the plaintiff’s earning capacity was already damaged.
In a libel action the plaintiff is seeking to recover compensation for loss of reputation; and it is well established and in accordance with the general principle applicable to all torts that it is open to the defendant to show that, at the time when he inflicted his injury on the plaintiff’s reputation, it was already damaged. There is nothing in Saunders v Mills to dispute this; there is indeed nothing to show that the other publications in that case were not contemporary. In cases of defamation evidence of previous bad reputation is usually considered as evidence in mitigation of damage, whereas in cases of bodily injury the same effect is obtained simply by measuring the consequences of the second injury; but, as counsel for the defendants submits, the principle in both cases is the same. In each case one has to take, as one finds it at the time when the second injury was done, the state of the plaintiff’s bodily fitness or the state of his reputation, as the case may be.
The modern law on mitigation of damage of libel is contained in the judgment of Cave J in Scott v Sampson. Much of that judgment was approved in Hobbs v Tinling, particularly by Scrutton LJ and the case itself was recently followed in this court in Speidel v Plato Films Ltd. In the latter case my recollection is that Scott v Sampson was accepted as good law. In the present case counsel for the defendants has argued that we ought not to approve the whole of the judgment of Cave J in Scott v Sampson and in particular that we ought not to hold that “character” for the purpose of mitigation of damage in the law of libel means reputation and not quality or disposition. In view of this submission I have carefully considered the judgment of Cave J and have looked at a number of the authorities which he cites. They are, as he says, conflicting; his judgment settled a number of disputed points in a way which seems to me to be full of good sense and that has stood unchallenged for nearly eighty years. In my opinion we should not depart from it now. I refrain from elaborating this because the judgment in Speidel v Plato Films Ltd is at present being considered in the House of Lords (See,[1961] 1 All ER 876); their Lordships will doubtless express their view of Scott v Sampson and thereafter no opinion of mine will be of any value. Moreover, the proposition that “character” means reputation and not quality or disposition does not depend solely on the authority of Scott v Sampson and is not peculiar to the law of libel; it applies throughout the civil and criminal law when the character of a witness or a prisoner is in issue: see R v Rowton ((1865), 34 LJMC at pp 60, 62), per Cockburn CJ and R v Gunewardene ([1951] 2 All ER at p 293;[1951] 2 KB at p 606), per Lord Goddard CJ.
The rule is therefore that evidence of character in mitigation of damage for defamation must be evidence of general reputation only. In the application of this rule it is necessary to consider just what is meant by “character” in the sense of reputation. Leaving aside for the moment all questions as to form of proof of bad character, it may be thought that the plaintiff in this case is in a dilemma. How can he say that Mr Bromley’s story gravely injured his reputation if in the same breath he asserts that the weightier censure by the Committee did him no harm? A closer understanding of what is meant by “character” in this branch of the law will help to show whether the dilemma is more than superficial. I desire to adopt a definition or description of “character” which was given by Mr Erskine in the course of his submission in R v Hardy, and which has since been cited in argument in R v Rowton ((1865), 34 LJMC at p 58) and in R v Gunewardene ([1951] 2 KB at p 604). In the course of his submission ((1794), 24 State Tr at p 1066 et seq), he reviewed many earlier authorities and gave some interesting illustrations of the way in which questions designed to obtain evidence about reputation should properly be put; and he said ((1794), 24 State Tr at p 1079):
“Character is the slow-spreading influence of opinion arising from the deportment of a man in society; as a man’s deportment, good or bad, necessarily produces one circle without another, and so extends itself till it unites in one general opinion, that general opinion, is allowed to be given in evidence.”
In my opinion it is only a settled bad character of this sort that ought to be taken into account in mitigation of damage. Where it exists, it shows that the permanent injury to a man’s character done by a libel on him is less grave than it would otherwise have been. There are other elements besides permanent injury to character to be taken into account in the assessment of damages for defamation. There is mental distress, the pain caused by those who doubt, even if they hold final judgment in suspense, and maybe financial loss also if they hold business in suspense as well. There is the malice of the defendant if it is proved; the presence or absence of an apology and his conduct and that of his counsel before and during the trial. If the innocence of a plaintiff was after a short period conclusively established, if the defendant was held up to universal execration so that it could be said that there was no possibility of anyone ever thereafter believing his falsehoods, still the plaintiff might obtain a verdict for heavy damages. Now, it cannot be said that in these respects a man with a bad character will necessarily suffer less. If he is a hardened sinner, he may not be much distressed and may not care about the doubts of others, but if he is a good man who has fallen once he may suffer all the more because of it. His distress will be the greater because he knows himself to be more vulnerable; the doubts about him will be more easily aroused and less easily borne than by a man who has had hitherto an unsullied reputation. Whether he be a hardened sinner or not, there is no reason why his defamers should pay a penny the less for their malice or misconduct. It is only really when one comes to consider permanent injury to reputation that it can be said that less is taken from a man who has already lost a part than from one who has preserved the whole. Thus it is fair and right that it is only when a man’s bad reputation has formed and settled that it should be used against him.
So treated, the rule covering mitigation of damage in libel does not differ materially from that applicable in the ordinary law of tort. If a man is injured a second time while he is still recovering from his first injury and before the effect of that injury on his earning capacity can properly be ascertained, the second wrongdoer will be liable for the whole loss of earning capacity partly caused by his act. Just as in physical injury it takes time to ascertain what the degree of disablement will be, so the state of a man’s reputation cannot fairly be assessed the moment after a slander is spoken. There can of course be cases when a man’s reputation is ruined overnight just as he may be clearly disabled by a single blow. If, for example, a man pleads guilty to a charge of dishonesty, there is not much room left for question. But otherwise the loss of reputation is a slow process. Men wonder, doubt, ask questions, say at first that they really do not know where the truth lies; and it is only when the dust has settled that the extent of the damage is revealed.
If the rule as to mitigation of damage is applied in this way, injury done to reputation by tales, true or untrue, will be ignored until, in Mr Erskine’s words, they have united to produce one general opinion, and then that general opinion will be allowed in evidence. This interpretation of the rule meets many of the objections that can be urged, and have been urged on behalf of the plaintiff in this case, against this form of mitigation of damage. Time is given for unfounded rumour and unjust accusation to be dispelled; they cannot at once be seized on in diminution of damage. The danger of injustice inherent in the rule that a man’s character depends on what others believe about him and not on his true disposition is much lessened; a false accusation can easily be made and may temporarily prevail, but it is not often that a man’s settled reputation is founded on untruth. Under this rule there is no danger of tomorrow’s newspaper saying what it likes in the expectation that yesterday’s will have to pay most of the bill. There is no danger that what is said in the House of Commons on one day can be repeated the next day with comparative impunity outside the House. It is indeed highly unlikely that an earlier publication of the same libel can be used to diminish the damage for a repetition of it; it is not impossible, for the libel may be an old one that has come to be generally believed.
Accordingly, I come to the conclusion that what is relevant when character is in issue, whether in a criminal or a civil case, is established reputation. Counsel for the plaintiff has submitted that there is no admissible evidence in this case to show that at the time of the libel the plaintiff’s reputation had been damaged in this sense, so I turn to consider the way in which established reputation should be proved. Customarily the evidence is that of men who live in the community where the plaintiff is known and in which the libel has circulated and who have heard the plaintiff discussed, but I do not think that an inference from facts can or should be excluded. If it can be proved that a man has been convicted of theft and that that fact has received wide publicity, it can be inferred that his reputation for honesty has suffered. There may be exceptional cases in which such an inference could be rebutted, but it is at least a prima facie inference. It is unnecessary to call a witness to give formal proof of what must be obvious; but when the inference is at all doubtful, it is important that it should be put to the test of what the neighbours actually think.
It is common practice in criminal cases to accept proof of convictions without more as evidence of bad character. The point does not appear to have been much discussed in relation to libel, but counsel for the defendants has found one case which supports his submission that the court can act on inference. In Hawkins v Express Dairy Co Ltd Stable J reduced to a farthing the damages of £750 which he would otherwise have given to the plaintiff for a libel on his honesty, because the plaintiff in his evidence in chief volunteered the information that he was guilty of a systematic deception known to the men among whom he worked. Stable J said ((1940), 163 LT at p 149):
“The plaintiff has said that in this yard, among his associates even up to the area manager, everyone knew that he was pursuing this dishonest practice … It seems to me that I am not only entitled, but bound, to consider the reputation which has been injured.”
I think that Stable J was entitled in principle (I do not of course concern myself with the correctness of the inference) to act on an inference that in the circles where the libel was effective the plaintiff had already lost his reputation.
Finally, I must consider what has been put forward by the defendants as evidence of bad character. They called no witnesses to give direct evidence of it. They put some questions in cross-examination to the plaintiff about the effect of the other newspapers which carried the Report of the Select Committee, but (even if it be conceded, which I doubt, that a man is competent to give evidence about the esteem in which he is held by others) they got no answers from him which could amount to a concession that already within the month his established reputation had been permanently injured. There is left the inference to be drawn from the admitted facts; and this was the strongest way in which counsel for the defendants put his case. For this purpose he was willing that the contents of all newspapers other than the “Daily Mail” itself should be excluded from consideration. He relied solely on the fact that the plaintiff put in as part of his case the article in the “Daily Mail” of 17 May which published the Report of the Select Committee and he invited us to infer, which I do, that the report would also have been given wide publicity in other papers. This publicity, he contended, must have injured the plaintiff’s reputation. I agree that the publicity must have caused the plaintiff immediate serious injury but I am not prepared to infer that within a month his established reputation was lowered. I agree that a finding by a Select Committee must carry very great weight with the ordinary man and that some might have thought it conclusive and felt that they wanted to hear no more, but the proceedings before the committee are not like those at a trial where the whole matter is thrashed out in public and the whole story is known. There may well have been influential people in Manchester putting about another point of view. Many members of the corporation may have known the truth. Professional men who had advised the shareholders to accept the offer may well have known something of the true value of the shares. Many men might have preferred to wait until they heard the town clerk’s side of the question before passing judgment. In my opinion this is not a case in which in the absence of direct evidence it would be safe to draw the inference that in a short period of a month and while the whole affair was still being agitated the plaintiff’s character in the estimation of his fellow-citizens had been changed.
For these reasons I think that the learned judge was wrong in taking into consideration in mitigation of damage the publication, whether in the “Daily Mail” or elsewhere, of the Report of the Select Committee. It follows that we must ourselves assess the proper figure to award to the plaintiff. For this purpose we have had to consider other criticisms that were made of the summing-up. I agree broadly with the views on these matters expressed by Sellers LJ and Holroyd Pearce LJ and I do not think that it is necessary for me to deal with each criticism in my own words. I think that the figure of £4,000 is fair compensation for the damage sustained by the plaintiff; I agree that this figure should be substituted in the judgment for the figure awarded by Pearson J and that to that extent the appeal should be allowed.
Appeal allowed: damages increased to £4,000. Leare to appeal to the House of Lords granted.
Cases referred to in judgment
Adam v Ward [1917] AC 309, 86 LJKB 849, 117 LT 34, 32 Digest 129, 1608.
Cadam v Beaverbrook Newspapers Ltd [1959] 1 All ER 453,[1959] 1 QB 413,[1959] 2 WLR 324, 3rd Digest Supp.
Chapman v Ellesmere (Lord),[1932] All ER Rep 221,[1932] 2 KB 431, 101 LJKB 376, 146 LT 538, Digest Supp.
Clement v Lewis (1822), 3 Brod & Bing 297, 10 Price, 181, 7 Moore, CP 200, 129 ER 1299, affg SC sub nom Lewis v Clement,(1820), 3 B & Ald 702, 106 ER 817, 32 Digest 24, 148.
Davies v Powell Duffryn Associated Collieries Ltd (No 2),[1942] 1 All ER 657,[1942] AC 601, 111 LJKB 418, 167 LT 74, 36 Digest (Repl) 231, 1229.
Harrison v Pearce (1858), 1 F & F 567, 175 ER 855, subsequent proceedings,(1859), 32 LTOS 298, 32 Digest 169, 2078.
Hawkins v Express Dairy Co Ltd (1940), 163 LT 147, 2nd Digest Supp.
Hobbs v Tinling, Hobbs v Nottingham Journal [1929] All ER Rep 33,[1929] 2 KB 1, 98 LJKB 421, 141 LT 121, 30 Digest (Repl) 267, 318.
Jones v Stephens (1822), 11 Price 235, 147 ER 453, 32 Digest 92, 1236.
Nance v British Columbia Electric Ry Co Ltd [1951] 2 All ER 448,[1951] AC 601, 36 Digest (Repl) 172, 922.
Pankhurst v Hamilton (1886), 2 TLR 682, 18 Digest (Repl) 191, 1652.
R v Gunewardene [1951] 2 All ER 290,[1951] 2 KB 600, 115 JP 415, 35 Cr App Rep 80, 22 Digest (Repl) 484, 5349.
R v Hardy (1794), 24 State Tr 199, 1 East, PC 60, 15 Digest (Repl) 769, 7116.
R v Rowton (1865), Le & Ca 520, 34 LJMC 57, 11 LT 745, 29 JP 149, 14 Digest (Repl) 322, 3115.
Saunders v Mills (1829), 6 Bing 213, 3 Moo & P 520, 8 LJOSCP 24, 130 ER 1262, 32 Digest 138, 1696.
Scott v Sampson (1882), 8 QBD 491, 51 LJQB 380, 46 LT 412, 46 JP 408, 32 Digest 167, 2045.
Speidel v Plato Films Ltd, Speidel v Unity Theatre Society Ltd [1960] 2 All ER 521,[1960] 3 WLR 391.
Truth (NZ) Ltd v Holloway,[1960] 1 WLR 997.
