ICLR: King's/Queen's Bench Division/1940/Volume 1/NEWSTEAD v. LONDON EXPRESS NEWSPAPER, LIMITED. - [1940] 1 K.B. 377 [1940] 1 K.B.

377 [COURT OF APPEAL]

NEWSTEAD v. LONDON EXPRESS NEWSPAPER, LIMITED.

1939 Nov. 2, 3, 6, 7, 20. SIR WILFRID GREENE M.R. and MACKINNON and DU PARCQ L.JJ. Defamation - Libel - No intention to defame plaintiff - Words true of another existing person - Questions left to jury - Whether words could be reasonably understood to refer to plaintiff - Disagreement of jury - Plaintiff awarded one farthing damages - Effect of jury's findings. A newspaper published an account of a trial for bigamy and referred to the prisoner as "Harold Newstead, thirty-year-old Camberwell man." The account was true as regards a Camberwell barman of that name, but was not true as regards the plaintiff, Harold Newstead, aged about thirty, who assisted his father in a hairdressing business at Camberwell Road, Camberwell. The plaintiff brought an action for libel against the proprietors of the newspaper. Five questions were left to the jury, who were unable to agree on the first question: "Would reasonable persons understand the words complained of to refer to the plaintiff?" and they assessed the plaintiff damages at one farthing. No judgment was entered and the parties were left to make up their minds as to the future course of the litigation:Held (affirming the decision of Hawke J. [1939] 2 K. B. 317), (1.) that the evidence would have justified a finding by the jury that reasonable persons would have understood the words complained of to refer to the plaintiff; and (2.) that, assuming the words complained of were capable of a meaning defamatory of the plaintiff, the fact that they were true of another person did not afford a good defence to the defendants. Per MacKinnon L.J. That as the jury assessed the damages at one farthing and no reasonable jury could be expected to assess them at a higher figure, the Court ought not to permit or direct a further trial of the action. APPEAL from Hawke J. (1) Argument on points of law arising out of the findings of a jury in an action for libel. The plaintiff was one Harold Cecil Newstead, a hairdresser, who assisted his father in business at Camberwell Road, Camberwell. The defendants were the printers and publishers of the Daily Express newspaper. The words complained of were published in the Daily Express of March 30, 1938, under the title "Why do people

(1)

[1939] 2 K. B. 317.

[1940] 1 K.B. 377 Page 378 commit bigamy?" and were as follows: "Harold Newstead, 30-year-old Camberwell man, who was jailed for nine months, liked having two wives at once. Married legally for a second time in 1932 his legal wife is pictured right, above - he unlawfully married nineteen-year-old Doris Skelly (left, above). He said 'I kept them both till the police interfered.'" The case for the plaintiff was that he was well known in the hairdressing trade in Camberwell and elsewhere as Harold Newstead, and that he was about thirty years of age, and a Camberwell man. He alleged that the words published were understood by a number of people to refer to him, and to mean that he had committed bigamy and been punished therefor. The defendants admitted publication, but denied that the words complained of were intended or understood to refer to the plaintiff, or that they were defamatory of him. They asserted that the words were published of an existing person of the name and description therein contained, and were intended, and were understood, to refer to that person, who was not the plaintiff. In relation to that other person, they said, the words published were true, and they pleaded justification and fair comment. The plaintiff, in his reply, submitted that, if the words were intended to refer to some other person, it was the absolute duty of the defendants, or at least their duty, to take reasonable care to give a precise and detailed description of such person, denoting him exclusively, and to ensure that the words published should not be capable of referring to any other person. In breach of such duty they had recklessly struck out words giving the occupation and address of the person convicted. His Lordship left the following questions to the jury:1. Would reasonable persons understand the words complained of to refer to the plaintiff? 2. (a)Was it true to say that the convicted man was "a Camberwell man"?

(b) Was it true to say that the convicted man "liked having two wives at once"? [1940] 1 K.B. 377 Page 379 3. Was the expression "liked having two wives at once" a fair comment on the conduct of the convicted man? 4. In omitting the occupation and address of the convicted man were the defendants (a) (b) reckless? negligent?

5.

Damages (if any).

The jury returned answers to the last four questions, but were unable to agree on the first question, and they assessed damages at one farthing, and were discharged. The answers of the jury were not read out in Court, but the paper on which they were written was handed down to counsel. The question what effect should be given to the findings of the jury was adjourned for further consideration. Having heard arguments, his Lordship held (1.) that the principle in Jones v. E. Hulton & Co. (1) applied, and the fact that the words complained of were intended to refer to, and were true of an existing person, who was not the plaintiff, did not afford a defence to the action; (2.) that an answer to the question whether reasonable persons would understand the words to refer to the plaintiff was essential to the success of the plaintiff in the action; and (3.) that therefore no judgment would be entered, and the parties must be left to make up their minds as to the future course of the litigation. The defendants appealed. The appeal was heard on November 2, 3, 6, 7, 1939. G. O. Slade for the appellants. The appellants' claim that they were entitled to a judgment in their favour on the jury's answers to questions two and three. Question one did not matter, question four was immaterial. The words complained of were not reasonably capable of applying to the respondent, and the jury ought to have so directed. Farwell L.J. in Jones v. E. Hulton & Co. (2) deals with recklessness and refers to Derry v. Peek. (3)

(1)

[1909] 2 K. B. 444; [1910] A. C. 20.

(2)

[1909] 2 K. B. 444, 480.

(3)

(1889) 14 App. Cas. 337.

[1940] 1 K.B. 377 Page 380 [SIR WILFRID GREENE M.R. Recklessness must depend upon the facts in each case.] The averment that the libel was written of and concerning the plaintiff is a material averment, and unless sensible people reading the libel could see that it referred to the plaintiff it would not be a libel - see Lord Alverstone C.J. in Jones v. E. Hulton & Co. (1) A libel consists in using language which others knowing the circumstances would reasonably think to be defamatory of the plaintiff, and he must be injured by it; Lord Loreburn L.C. in E. Hulton & Co. v. Jones. (2) In D. C. Thomson & Co. v. McNulty (3) Lord Dunedin followed E. Hulton & Co. v. Jones (2) and in Shaw v. London Express Newspaper, Ld. (4), the case was withdrawn from the jury, because the article in question could not refer to the plaintiff and was therefore not defamatory. Cassidy v. Daily Mirror Newspapers (5) was a very different case from the present one. The de facto intention of the writer does not affect the issue. Where words are published which are true of an existing person no action will lie at the suit of another person, even if that person satisfies the jury that reasonable people might think the words apply to him. In the absence of recklessness a person is not liable to pay damages for a publication that is true of one person, even if all the friends of another person think that the

cap fits him. No one can reasonably assume that the plaintiff is meant, unless there is something in the article or the surrounding circumstances that particularly points to the plaintiff, and the plaintiff must plead and prove the circumstances: Bruce v. Odhams Press, Ld. (6) There is nothing in the article or the surrounding circumstances in this case that particularly points to the plaintiff. The question whether something written about a particular person is capable of applying to another particular person is one for the judge and not the jury. When the only things that emerge from the evidence in dealing with a true statement

(1)

[1909] 2 K. B. 444, 452-3.

(2)

[1910] A. C. 20, 23.

(3)

(1927) 71 Sol. J. 744.

(4)

(1925) 41 Times L. R. 475.

(5)

[1929] 2 K. B. 331.

(6)

[1936] 1 K. B. 697.

[1940] 1 K.B. 377 Page 381 about some one other than the plaintiff are that the plaintiff has the same name, comes from the same district and is about the same age, it is impossible to infer the intention to refer to the plaintiff. The intention to be found is not one of de facto intention but of assumed intention. The matters that arise here are (1.) whether the statement was true of some one other than the plaintiff and of this there is no doubt. (2.) If the statement is true of that person, has the plaintiff shown that a defamatory statement has been published of him and, as already suggested, for this purpose an assumed intention must be shown in the clear evidence of no de facto intention. (3.) Assumed intention is manifested in two ways (a) by the defamatory words themselves, or (b) by the circumstances and manner of publication. An example of (b) is when words are published about A and the publisher must be assumed to know that in view of the outstanding position of B a large number of persons would regard them as applying to B. Recklessness arises when the assumed intention differs from the de facto intention by reason of the conduct of the writer of the libel. It is a species of estoppel by conduct. The only province of the factor for recklessness in cases of this type is when the writer of an alleged libel says he never meant it in his own mind, although it is apparent that everyone must understand otherwise. It is only where in the words used is a true statement about someone else there is something which points particularly to the plaintiff that the time comes to go to the jury. Here there is nothing of the kind. The statement made here was capable of verification by anyone interested and no reasonable person would jump to the conclusion that it referred to his friend the plaintiff. The same sort of question arises as when the question is whether the words used are capable of a defamatory meaning and the question is not what the writer meant, but what meaning the words used might reasonably bear: see Perryman v. Lister. (1) Here there was not the necessary foundation to enable the question to be put to the jury of who was the person to

whom the published statement might be understood to refer to. It

(1)

(1868) L. R. 3 Ex. 197, 200.

[1940] 1 K.B. 377 Page 382 would be different if there was something in the surrounding circumstances to point to the plaintiff, as if a man with the relevant poster had been placed opposite his shop. If the statement in truth referred to an insignificant person and might be taken to refer to a well known person, the learned judge would take that into account in considering whether there was a case to leave to the jury. Here the plaintiff had a second Christian name, was unmarried, and was not of the age mentioned in the statement. It is unreasonable to jump to the conclusion that he was referred to, and the judge ought to have dismissed the action. The appellants here are entitled to judgment on two grounds (1.) that there was no case to go to the jury and (2.) that judgment could be given on the questions answered by the jury. [SIR WILFRID GREENE M.R. The jury was discharged because they could not agree and therefore there is no verdict.] The jury disagreed on the first question of whether the alleged libel referred to the plaintiff, but the judge had found that the statement was privileged and the jury found that there was no malice, so that on that finding alone the appellant was entitled to judgment and the absence of an answer to the first question was immaterial. Alternatively the appellant asked for a new trial and in that case asked that the finding of a farthing damage should stand. It is submitted that the Court has power so to direct: see Order XXXIX., rr. 6, 7. A. T. Denning K.C. and R. M. Wilson for the respondent. The facts here are that in the report of the proceedings for bigamy at the Central Criminal Court, the Harold Newstead the convict was referred to as having the occupation of a barman and his address in Camberwell given. After the report reached the newspaper office the assistant editor wrote the matter up into a story and in doing so omitted the address and referred to the man as a Camberwell barman. At a later stage someone altered that account once more by altering "barman" into "man." It is the omission of these identifying things that have given rise to this action and the defendants' sub-editor agreed that it is important to identify the person [1940] 1 K.B. 377 Page 383 referred to as nearly as possible. In other papers the occupation and address were inserted. It is these omissions that have made the words capable of referring to the plaintiff and therefore it is a question for the jury whether the words could reasonably be taken to refer to the plaintiff and the learned judge so held. It is for the papers to make fair and accurate reports and it is only if they do this that the newspaper can claim exemption on the ground of privilege in a case where the report can be taken to apply to a different person. It is a good defence if the defendants can show that the possible mistake arose through no lack of reasonable care and this the defendants cannot do in the present case. Again there is no such thing as legal or assumed intention any more than there is legal fraud. This point of the appellants' argument would lead to a man who published a libel with the intent of injuring A escaping liability where there was another man of the same name of whom it was true. Next, there is no such thing as absolute truth. It is necessary first to ascertain the meaning of the words used and then see whether they are true and the meaning must be ascertained independently of the writer's

intention. The words used here were clearly defamatory and no regard can be paid to the intention in publishing them. They are published at the publisher's peril unless he has some reasonable excuse for doing so. This is made clear by Jones v. E. Hulton & Co. (1) The judge is clearly right here in holding that the words in question were capable of being defamatory of the plaintiff and that being so the case must clearly go to the jury. [MACKINNON L.J. referred to Cooper and Wife v. Proprietors of the Oldham Chronicle. (2)] It is well established by Hulton's case (1) that the Court did not look to the intention with which words were published: see Spencer Bower on the Law of Actionable Defamation (1st ed.), p. 12. In Cassidy's case (3) it was pointed out that if published words were reasonably capable of referring to A the publisher must take the consequences: see Youssoupoff v.

(1)

[1909] 2 K. B. 444; [1910] A. C. 20.

(2)

Unreported.

(3)

[1929] 2 K. B. 331, 341.

[1940] 1 K.B. 377 Page 384 Metro-Goldwyn-Mayer Pictures, Ld. (1), and Gatley on Libel (2nd ed.), pp. 125, 126. Here the appellants cannot rely on their defence as reasonable excuse. They ought to have known that by omitting the name and occupation of the person they were referring to they made it possible that what they said might be taken to apply to another person: see Pollock on Torts (14th ed.), p. 200. The element of negligence is only material in considering whether there is reasonable excuse for what has been done: see Salmond on Torts (9th ed.), p. 403. American cases dealing with this branch of the law are Hausa (or Hauson) v. Globe Newspaper Co. (2); Peck v. Tribune Co. (3) and Washington Post v. Kennedy (4) and an Australian authority is Lee v. Wilson. (5) In Washington Post v. Kennedy (4) the very point that arises here of omitting a description that would have distinguished that person to whom reference was intended to be made for someone else. It is not what was the intention of the writer of the article that matters, but what was the tendency of the article: Capital and Counties Bank v. Henty. (6) It is now established that what matters is not what the writer of an article means, but what the article means to its readers. An article which is prima facie innocent may became capable of a defamatory meaning by reason of the circumstances surrounding its publication, and it is for the judge to determine whether what is complained of is capable of a defamatory meaning: Lord Tomlin in Tolley v. J. S. Fry & Sons, Ld. (7) When considering whether a publication is reasonably capable of a defamatory meaning the fact that it is true of another person does not matter. [DU PARCQ L.J. In Fraser on Libel and Slander (7th ed.), pp. 14-15, there is a long list of cases in which judges have differed as to what is reasonably capable of a defamatory meaning.] It cannot be an excuse that what has been published

(1)

(1934) 50 Times L. R. 581.

(2)

(1893) 159 Mass. Rep. 293.

(3)

(1909) 214 U. S. 185.

(4)

(1925) 3 Fed. Rep., 2nd series, 207.

(5)

(1934) 51 C. L. R. 276.

(6)

(1882) 7 App. Cas. 741, 781-2.

(7)

[1931] A. C. 333, 350.

[1940] 1 K.B. 377 Page 385 is true of another person. There is a consensus of opinion that carelessness is no defence to an action for libel. G. O. Slade replied. 1939. Nov. 20. SIR WILFRID GREENE M.R. I have read the judgment about to be delivered by du Parcq L.J. Agreeing as I do with his conclusions, and the reasons which he gives for them, I do not think it necessary to deal at length with the case. But I wish to offer some observations of my own upon one crucial matter, which was much discussed before us. Great reliance was placed by Mr. Slade upon the language used by Farwell L.J. in his judgment in the case of Jones v. E. Hulton & Co. (1) It is not surprising that he should have done so, in view of the fact that when that case reached the House of Lords, two out of the four noble and learned Lords who heard the appeal (Lords Atkinson and Gorell) expressed their "substantial concurrence" with that judgment. At the same time, Lords Atkinson and Gorell expressed their concurrence with the opinion of Lord Loreburn L.C., whose reasoning I find it impossible to reconcile with much of what was said by Farwell L.J. In these circumstances, I am constrained to regard the reasoning of Lord Loreburn L.C. as representing the real ratio decidendi of the majority of the House, and the opinion of the other noble and learned Lord, Lord Shaw, does not differ from it in any important particular. It is to be observed that the opinions of the members of the House were not on that occasion considered opinions: if they had been, the language of Lords Atkinson and Gorell in relation to the judgment of Farwell L.J. would no doubt have been more explicit. I think it right to state my views upon this matter, as the expressions in question have given rise to much doubt and controversy. There are two passages in the judgment of Farwell L.J. upon which Mr. Slade strongly relied. The learned Lord Justice says (2): "But it is not enough for a plaintiff in libel to shew that the defendant has made a libellous statement, and that the plaintiff's friends and acquaintances understand

(1)

[1909] 2 K. B. 444.

(2)

Ibid. 480.

[1940] 1 K.B. 377 Page 386 it to be written of him: he must also shew that the defendant printed and published it of him; for if the defendant can prove that it was written truly of another person the plaintiff would fail." Again, the Lord Justice says (1): "If the libel was true of another person and honestly aimed at and intended for him, and not for the plaintiff, the latter has no cause of action, although all his friends and acquaintances may fit the cap on him." Now it is important to examine carefully the process of reasoning of which these passages form part. In the first passage Farwell L.J. expresses his agreement with the view which had been expressed by Fletcher Moulton L.J., as to the necessity of the presence of an intention on the part of the defendant to refer to the plaintiff. That view is summarized by Fletcher Moulton L.J. where he says (2): "It is therefore, to my mind, settled law that a defendant is not guilty of libel unless he wrote and published the defamatory words 'of and concerning the plaintiff' - in other words, unless he intended them to refer to the plaintiff." Farwell L.J. then says that the point of difference between himself and Fletcher Moulton L.J. lies in the meaning of the word "intended" and states (correctly, if I may respectfully say so) that "the inquiry is not what did the defendant mean in his own breast, but what did the words mean having regard to the relevant surrounding circumstances." Later on he says: "So the intention to libel the plaintiff may be proved not only when the defendant knows and intends to injure the individuals, but also when he has made a statement concerning a man by a description by which the plaintiff is recognized by his associates, if the description is made recklessly, careless whether it hold up the plaintiff to contempt and ridicule or not" and (3) "the element of intention, which is as essential to an action of defamation as to an action of deceit, can be proved in the same way in both actions." He had previously referred to the fact that fraud is committed where a representation is made (4) "recklessly, careless whether it be true or false, and

(1)

[1909] 2 K. B. 444, 481.

(2)

Ibid. 464.

(3)

Ibid. 481.

(4)

Ibid. 480.

[1940] 1 K.B. 377 Page 387 although there was no intention to cheat or injure the person to whom the statement was made - Derry v. Peek (1) - and yet the fraudulent intent is of the essence of the action." It would be affectation to say that in criticizing the reasoning of so learned a judge I speak with hesitation, since my view upon the matter is clear. It appears to me that the analogy of the action of deceit is not a true analogy. In that action the necessity for the presence of a fraudulent intention is satisfied if it be shown that the defendant made the statement in question recklessly, careless whether it were true or false. But this recklessness and this carelessness have

nothing to do with the meaning of the statement - they are relevant only to the question of the fraudulent intent of the person making it. But in applying the analogy to the case of libel, Farwell L.J. applies the test of recklessness to the meaning of the words used, which is quite a different matter. If the words used when read in the light of the relevant circumstances are understood by reasonable persons to refer to the plaintiff, refer to him they do for all relevant purposes. Their meaning cannot be affected by the recklessness or honesty of the writer. I do not propose to refer to the authorities which establish this proposition, except to quote the words of Lord Loreburn L.C. in E. Hulton & Co. v. Jones, where he said (2): "What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it." In the case of libel, once it is held that the words are capable of referring to the plaintiff, it is, of course, for the jury to say whether or not they do so refer. Subject to this, the principle is in truth an illustration of the rule that the author of a written document is to be taken as having intended his words to have the meaning which they convey when understood in the light of the relevant surrounding circumstances. In the case of libel, the same words may reasonably convey different meanings to a number of different persons or groups of persons, and so be held to be defamatory of more persons than one.

(1)

14 App. Cas. 337, 374.

(2)

[1910] A. C. 20, 23.

[1940] 1 K.B. 377 Page 388 After giving careful consideration to the matter, I am unable to hold that the fact that defamatory words are true of A, makes it as a matter of law impossible for them to be defamatory of B, which was in substance the main argument on behalf of the appellants. At first sight this looks as though it would lead to great hardship. But the hardships are in practice not so serious as might appear, at any rate in the case of statements which are ex facie defamatory. Persons who make statements of this character may not unreasonably be expected, when describing the person of whom they are made, to identify that person so closely as to make it very unlikely that a judge would hold them to be reasonably capable of referring to someone else, or that a jury would hold that they did so refer. This is particularly so in the case of statements which purport to deal with actual facts. If there is a risk of coincidence it ought, I think, in reason to be borne not by the innocent party to whom the words are held to refer, but by the party who puts them into circulation. In matters of fiction, there is no doubt more room for hardship. Even in the case of matters of fact it is no doubt possible to construct imaginary facts which would lead to hardship. There may also be hardship if words, not on their faces defamatory, are true of A, but are reasonably understood by some as referring to B, and as applied to B are defamatory. But such cases must be rare. The law as I understand it is well settled, and can only be altered by legislation. The appeal must be dismissed with costs. MACKINNON L.J. The arguments in this case have ranged over a wide field, and we have been referred to many authorities. I do not propose to examine those many cases, but to state the conclusions as to the law to which I have arrived after examining them. If A publishes to another person, or persons, words which upon their reasonable meaning refer to B, if those words are defamatory as holding B up to hatred, ridicule, or contempt, and if the words so referring to B

cannot be justified as true, A may be liable for damages to B. [1940] 1 K.B. 377 Page 389 Secondly, the reasonable meaning of the words, upon the question whether they refer to B must be tested objectively and not subjectively. The question is what do the words mean as words, not what did A in his own mind mean by them or intend them to mean. Thirdly, A cannot plead as a defence that he was unaware of B's existence. Fourthly, A cannot plead as a defence that the words are, in their reasonable meaning, equally capable of referring to C, and that when referring to C they are true. Fifthly, there has been in some of the cases (notably by Farwell L.J. in Jones v. E. Hulton & Co. (1)), reference to negligence or recklessness on the part of A in making the publication. If the words, on their reasonable meaning, do refer to B, I think it is immaterial whether A was either negligent or reckless in not ascertaining the existence of B, or guarding against the applicability to him of the words. If B establishes his claim, the jury in assessing his damages may take into account all the circumstances of the publication. The negligence or recklessness of A may well be among such circumstances. Further or otherwise negligence or recklessness on the part of A is immaterial. It is hardly necessary to add, sixthly, the rule which is elementary, namely, that it is the primary duty of the judge to decide whether the words complained of are capable of a meaning that is defamatory of B, and only if he answers that question in the affirmative to leave to the jury the questions whether they are in fact defamatory of B, and, if so, what damages he shall be awarded. In a case in which there is no question that the words are defamatory of him, if they refer to B, and the contest is only whether they do so refer, this preliminary question for the judge must be: "Are these words on their reasonable meaning capable of referring to the plaintiff?" And if he answers that affirmatively I think that, properly, the first question to be left to the jury should be: "Could the words used by the defendant be reasonably interpreted by those

(1)

[1909] 2 K. B. 444, 480.

[1940] 1 K.B. 377 Page 390 to whom they were published as referring to the plaintiff?" On the first question, not exactly in that form, that was left to them, the jury failed to agree. Counsel for the defendants submitted that there was no evidence fit to go to the jury on which they could properly answer this first question in the affirmative. The judge overruled this contention: he therefore said that the case must be left for trial by another jury if the plaintiff chose to enter it again for trial. The defendants appeal from this ruling, though they also raise other contentions in law, some of which I have previously dealt with adversely to them. In my opinion the question for us is whether the judge was right in ruling that there was evidence fit to be left

to the jury on which they could reasonably answer "Yes" to the question: "Could the words used by the defendants be reasonably interpreted by those to whom they were published as referring to the plaintiff?" In form this may not be precisely the same as the preliminary question for the judge's determination: "Are the words capable of being defamatory of the plaintiff?" But I think the difference is one of form and not of substance. For I think that truly the preliminary question for the judge is: "On the evidence is it possible for a reasonable jury to answer the above question affirmatively?" My brethren are of opinion that the judge's ruling as to this was correct. I confess that I entertain grave doubt whether it was. That doubt is not sufficient to make me express an actual dissent, especially as I think there is another ground on which this appeal should be allowed. But I should like to indicate the reasons which make me doubt. In considering the judge's preliminary question whether the words are capable of being defamatory, and ought he therefore to leave to the jury the question whether they are so, what type of mind or intelligence ought the judge to impute to the audience? Not, I think, that they are of the class who accept and act on the wickedest proverb that was ever invented: "There is no smoke without fire." On the other hand, perhaps he should not impute to them the charitable decency of gentlemen. I can only suppose that one must [1940] 1 K.B. 377 Page 391 have recourse again to that elusive being "the reasonable man," and assume that the audience consists of "reasonable people." Secondly, in considering what is the reasonable meaning of words uttered, not merely the actual words, but the circumstances of time and place must be taken into account, and also the constitution of the audience to whom they were addressed. The audience of a general newspaper is the general public. (Judging from the specimens furnished for our inspection the audience of the defendants' paper must be the more vulgar and unintelligent portion of the general public). Words in such a paper may have a meaning other than they may have in a local paper addressed to a local audience. And words in a letter addressed to a few people, or even to an individual, may have a still more special signification. I would suggest as the two extremes of generality and speciality, (a) a paragraph in The Times: "John Smith of London, was convicted at the Old Bailey of so and so," and (b) a letter to a householder at his address: "I think it right to let you know that your gardener, A. B. is stealing your vegetables and selling them to the local greengrocer." It seems manifest that The Times could not be successfully sued by a John Smith, who was not the convict; and equally manifest that, if the letter was untrue, the gardener could sue the writer. If a newspaper printed the sentence: "A. L. Smith, a London man, was fined for drunkenness at Bow Street," and a man of that name alleged these words to be defamatory of him, I think the judge ought not to let his case go to the jury. But if, forty years ago, a man exhibited a poster at the gate of Balliol, or outside the Law Courts, bearing the words: "A. L. Smith fined for drunkenness," either of two distinguished people, if they cared to sue, should have had their cases left to the jury. The words published to the audiences undergraduates of Balliol, or lawyers leaving the Courts - would have a special meaning. In E. Hulton & Co. v. Jones (1), the nature of the audience may

(1)

[1909] 2 K. B. 444.

[1940] 1 K.B. 377 Page 392 have had some minor importance. The plaintiff was a well known barrister on the North Wales and Chester Circuit, and that is a region not far from Manchester. But the sting of the words in that case arose from his very unusual name. In all probability there was only one "Artemus Jones" in Great Britain, possibly in the world. If the paper had written of the doings at Dieppe of John Jones, I am clear that no one of the many men who struggle through life under the name "John Jones" ought to have had a claim left to the jury. And if the article had said "Jones" simpliciter, neither Mr. Artemus Jones, or any other Jones, could have sued. If the words may have a special significance to the audience, by reason of some local, or other, circumstance, how far is the special knowledge of some members of that audience to be considered in estimating the reasonable meaning of the words to those members? If the audience be a local one, e.g., if the words in this case had been printed in a Camberwell newspaper, the percentage of readers who knew of the existence of the plaintiff might have been much greater than the percentage of readers of the Manchester Guardian - if I may assume, solely for the sake of argument, that that austere journal could ever have printed this trash. In E. Hulton & Co. v. Jones (1) every reader (except those who thought the name merely fictitious, or did not think about it at all), would reasonably think the plaintiff was referred to. It was in evidence in that case that the plaintiff was baptized "Thomas Jones," and had only assumed the name Artemus when he came to years of discretion. If the position had been reversed, and he had dropped the name Artemus when a boy, and had sued Hulton, saying "My real name is Artemus. I have not used that praenomen for many years. But I can call one of my schoolfellows, and an aunt, who will say they once knew me as Artemus, and, being disagreeable and suspicious people, will say they thought this story of piccadillos at Dieppe referred to me" - I think he should have been non-suited. There is implicit also this further consideration. If the

(1)

[1909] 2 K. B. 444.

[1940] 1 K.B. 377 Page 393 special knowledge of a section of the audience consists only of their personal acquaintance with the plaintiff, and if he is a man of good character, he needs all the less any protection from any imputation on that character in their minds, if they are reasonable people. The better his character the more likely are those who know of him (unless they are unreasonably uncharitable) to say: "As usual, when one knows anything of one's own knowledge, a newspaper gets it wrong." Indeed, the smaller the percentage of the specially informed part of the audience, and the higher the character of the plaintiff, the more remote is the possibility of any real damage to him from the suggested defamation. On the facts of this case - (a) the audience, to whom the words were published, was very widespread and numerous, while the percentage of it with special knowledge, i.e., acquaintance with the plaintiff, was infinitesimal, and (b) the name, Harold Newstead, is a very ordinary one, and may well be owned by more than one person. As the question is whether the few people who knew of the plaintiff would be acting as reasonable people in thinking, without further inquiry, that the words referred to the plaintiff, and at once holding him in ridicule, hatred, or contempt, I confess that, unassisted by the view of my brethren, I should be inclined to answer "No." I should be inclined to think that they could only do so if they were more stupid, and

more uncharitable than I hope reasonable people are. There is, however, another and different ground on which I think this appeal should be allowed. We are encouraged and entitled to assume that any jury consists of twelve reasonable people, though, paradoxically, tradition forbids us to interfere when a jury has assessed damages at a figure that we all think extravagantly excessive. In this case the jury did assess the damages, if the words did defame the plaintiff, at one farthing. It is true that they did not bring in a complete verdict, since they failed to agree on the first question. But they expressed their unanimous opinion as to the amount of damages. I suppose I am still entitled to regard them as twelve reasonable people, even if they failed [1940] 1 K.B. 377 Page 394 to agree on a question which has virtually caused disagreement between my brethren and myself. I know, therefore, that twelve reasonable people have assessed the plaintiff's possible damages at one farthing. And, on the facts proved, I cannot conceive that any twelve reasonable people would arrive at a larger figure. It is said that we are bound to permit, if not to direct, a further trial of this case, and if another jury disagrees, yet another, and so on. That is in order that eventually some jury may answer "No" to the first question, or, answering "Yes" to it, may give the plaintiff the farthing which one jury has already agreed upon, and which I am satisfied any reasonable jury would agree upon. I do not think we are constrained to adopt this course. For I think we sit here to administer justice, and not to supervise a game of forensic dialectics. This ground, on which I would allow this appeal, is similar to that which was applied by this Court in the case of Poliakoff v. News Chronicle Ld. (1), though with a slight but, as I think, an immaterial extension. For in that case the Court was made aware of the fact that, the only conceivable damages being one farthing, the defendants had paid into Court a sum in excess of that figure. DU PARCQ L.J. The submissions upon which the appellants rely may be stated shortly as follows: (1.) That the evidence would not have justified a finding by the jury that reasonable persons would have understood the words complained of to refer to the plaintiff. The ground of this submission is that the words were not capable of such a meaning. (2.) That, even assuming that the words were capable of a meaning defamatory of the plaintiff, the fact that they were true of another person affords a good defence to the appellants. As to (1.), there is a clear distinction between the question which a jury may have to answer, and the preliminary question which is for the Court. The question for the Court is, to adopt the language of Lord Halsbury, whether the words are

(1)

[1939] 1 All E. R. 390.

[1940] 1 K.B. 377 Page 395 susceptible of a libellous meaning in this sense, that a reasonable man could construe them unfavourably in such a sense as to, make some imputation upon the person complaining." Nevill v. Fine Art and General Insurance Co. (1) If the judge holds the words to be susceptible of a defamatory meaning in that sense, the

jury are the constitutional tribunal to decide whether the words in fact have that meaning - whether, that is, the reasonable man whom they may be supposed collectively to typify would (not could) so construe them. The question which the judge must put to himself involves the assumption that the hypothetical reasonable man is capable of forming what the jury (and perhaps the judge also) may think to be an unduly censorious or suspicious view. The judge must be careful not to answer in advance the question which is properly for the jury, and to observe the limitation imposed upon his proper function by the law. At the same time he must not shrink from withdrawing the case from the jury if he is satisfied that no reasonable man "could" (not "would") attach to them the defamatory meaning alleged. I express no opinion as to the answer which the jury ought to have made to the first question left to them by Hawke J. I am, however, clearly of opinion that the learned judge was right to leave the question to the jury. There was evidence, in my opinion, which would justify a jury in finding, in the language of the statement of claim, that the description "Harold Newstead, thirty-year-old Camberwell man substantially fits the plaintiff." The plaintiff is known as a hairdressers' assistant to a comparatively wide circle of customers and other acquaintances in Camberwell, where he has acquired a modest fame. A reasonable man who had some acquaintance with him might have been prudent enough, on reading the alleged libel, to say: "This may refer to some other Harold Newstead": but I am not satisfied that every reasonable man would necessarily have been so cautious. The man who believes no ill of his neighbour until the accusation is proved beyond doubt against him is without question a reasonable man; but it would be fallacious to

(1)

[1897] A. C. 68, 76-7.

[1940] 1 K.B. 377 Page 396 argue that every reasonable man attains to that high standard of judicial fairness. Evidence proving the existence of another person to whom the words might have been taken to refer is only relevant to this first question because it proves the words to have been capable of more than one meaning, and of at least one meaning which would not be defamatory of the plaintiff. It cannot now be argued (in this Court, at any rate) that "if words are capable of several meanings, some defamatory and some innocent, they should not be left to the jury." The correct view is that if the words are reasonably capable of two or more meanings, of which one is defamatory, it must be left to the jury to determine in which sense a reasonable man would understand them: see the judgment of Scrutton L.J. in Cassidy v. Daily Mirror Newspapers. (1) If I am right in rejecting the appellants' first submission, it is necessary to come to a decision on the interesting and difficult question raised by the second. In my opinion it is now settled law that "liability for libel does not depend on the intention of the defamer; but on the fact of defamation": Cassidy v. Daily Mirror Newspapers. (2) I quote these words of Russell L.J., as he then was, as conveniently summarizing the effect of his own judgment, and of that of Scrutton L.J. in Cassidy's case (1), and as clearly stating the principle established by E. Hulton & Co. v. Jones. (3) It seems to me to be impossible, consistently with this principle, to make the defendant's liability depend on the accuracy of his words in relation to some person, other than the plaintiff, at whom he says he meant to strike. Nor do I think, with the greatest respect for the view expressed by Farwell L.J. in E. Hulton & Co. v. Jones (3), that any doctrine which would make the defendant's liability depend upon his state of mind, or the degree of care which he exercised, is reconcilable with this principle. In the present case, and in any similar case in which a defendant says that he was only speaking the truth of another person and not meaning to attack the plaintiff, it may

(1)

[1929] 2 K. B. 331, 339.

(2)

Ibid. 354.

(3)

[1909] 2 K. B. 444; [1910] A. C. 20.

[1940] 1 K.B. 377 Page 397 well be right to direct the jury that a reasonable man must be aware of the possibility (it is for them to say in each case whether it amounts to a probability) that in any district there may be more than one person of the same name, and that, in considering how a reasonable man would understand the words, they must assume that he will read them with such care as may fairly be expected of him, not ignoring any parts of the description which are inapplicable to the plaintiff. If a defendant has been careful and precise, he may by his care avoid the risk of a successful action; but he cannot in my opinion escape liability merely by showing that he was careful and that his intentions were good. The Master of the Rolls has dealt fully with this part of the case, and I would add that I find myself in complete agreement with all his observations upon it. If these two submissions on the part of the appellants are rejected, it follows, in my opinion, that the learned judge was right in holding that the case had yet to be tried. Mr. Slade suggested, however, that it would be proper to make an order limiting the trial to the issue of liability, and to treat the quantum of damages as having been already the subject of a decision. It is, I think, plain that this Court would have no power to take that course, even if it commended itself to us. This is not a case in which a new trial is being sought, or in which a verdict has been given on one issue. The answers of the jury do not amount to a verdict, so that there has been no verdict and no trial. When a jury has failed to agree on the question of liability, its opinion as to what the damages should have been can have no legal effect. If this Court were to say that such an assessment of damages must stand, it would in effect be adopting the jury's assessment of damages as its own; or, in other words, itself deciding what damages ought to be awarded, a decision which it has no power to make: see Watt v. Watt. (1) It is hardly necessary to add that this case is clearly distinguishable from one in which the issues joined on different causes of action have been left to a jury, who have returned a verdict on one or more

(1)

[1905] A. C. 115.

[1940] 1 K.B. 377 Page 398 of them, and been unable to agree as to the others. See, for instance, Marsh v. Isaacs. (1) It is equally plain that Order XXXIX., r. 7, of the Rules of the Supreme Court has no application to a case where the Court is not granting a new trial but, on the contrary, is holding that there has not yet been a trial. In the circumstances, I prefer to express no view as to the adequacy of the amount assessed by the jury.

I agree with the Master of the Rolls in thinking that the appeal should be dismissed and it becomes unnecessary to decide the questions raised by the cross appeal. Appeal dismissed. Solicitors for appellants: Shirley Woolmer & Co. Solicitors for respondents: Manches & Co.

P. J. B.

(1)

(1876) 45 L. J. (Q. B.) 505.