Chapter VI: Defamation (8)

SIR GORELL BARNES, PRESIDENT. I have had an opportunity of reading the judgment of the Master of the Rolls, and I agree with it.

_Appeal dismissed._[521]

JACKSON _v._ HOPPERTON
IN THE COMMON PLEAS, MAY 25, 1864.
_Reported in 12 Weekly Reporter, 913._[522]

This case was tried before Williams, J., at Guildhall, in the sittings
after last Easter Term.

The declaration stated that, “before the speaking, &c., the defendant
had been a man-milliner, and the plaintiff had been in his service and
employ as a saleswoman and assistant, and the defendant falsely, &c.,
spoke, &c., of the plaintiff the words ‘Miss Jackson’ (thereby meaning
the plaintiff) ‘is dishonest,’ thereby meaning that the plaintiff was
a thief and a dishonest servant, and had been guilty of fraudulent
conduct in her capacity as such saleswoman, &c., whereby, &c., the
plaintiff was injured in credit and reputation, and certain persons
trading under the name and style of ‘Capper, Son, & Co.’ refused to
employ the plaintiff as saleswoman and servant in their employ, as
they otherwise would have done, and the plaintiff lost and was
deprived of her said situation in the employ of the said ‘Capper, Son,
& Co.,’ and has been for a long space of time unable to obtain
employment, &c.”

Plea—Not guilty.

The plaintiff entered the defendant’s service on December 1st, 1862,
and remained in his employ till October, 1863, when she left, he
having accused her of taking some money, and a few other things.
Shortly after she left, she returned for her boxes, and asked him for
her wages, and he then accused her of taking £3 10_s._, but said, “if
you had come back, I should have said nothing about it.” A few days
after he paid her her wages. Two or three days after this, she applied
to the Messrs. Capper, Son & Co., for a situation; and she informed
the defendant that a young lady was coming to him for a reference, and
he then said, “I will give you no reference, but if you own that you
took the money I will give you a reference.” The lady from Messrs.
Capper, Son, & Co. called at the defendant’s and asked him for the
plaintiff’s character, when he spoke the words in the declaration, and
said he would not give her a character, she was dishonest, and that he
had money and goods which he could prove she had taken. The plaintiff
did not get the situation, the wages for which were £50 a year and
board. The jury found a verdict for the plaintiff for £60.

_Mr. Chambers_, Q. C. (_Hance_ with him), now moved for a rule calling
on the plaintiff to show cause why this verdict should not be set
aside, and instead thereof a nonsuit entered, on the ground that there
was no evidence of express malice; or for a new trial, on the grounds
that the verdict was against the evidence, and that the damages were
excessive.

ERLE, C. J. I am of opinion that there should be no rule in this case.
This was an action for defamation of character, and evidence was
adduced on the part of the defendant to show that the defamatory words
were uttered on an occasion which justified the use of them. The
question left to the jury was, whether the defendant believed the
imputation of dishonesty, which he made against the plaintiff, was
true or not, and they found he did not believe it to be so, and the
judge is satisfied with their answer. I think this was a necessary
question to be left to them. Then, as to the damages being excessive,
the plaintiff lost a situation for which she would have received £50 a
year, and it cannot be said that £60 is too large a sum as
compensation for that loss. Mr. Chambers also moved on the ground that
it was the judge’s duty to nonsuit the plaintiff at the close of the
plaintiff’s case; but she tried to get another situation, and a lady
called on the defendant for her character, and he then spoke to the
lady the words complained of; where words are spoken on such an
occasion as that, if the person uttering them believe them to be true,
and there be no further evidence to show a probability that they were
spoken maliciously, it is the duty of the judge to nonsuit the
plaintiff. The cases of Taylor _v._ Hawkins, 16 Q. B. 308, and
Somerville _v._ Hawkins, 10 C. B. 583, show what is the law under such
circumstances, and lay down that, if the plaintiff give evidence from
which the jury might infer malice, such as, that the defendant made
the imputations not believing them to be true, or that at the time
when he spoke the words he did not believe he was in the discharge of
a duty, the question of malice ought to be left to the jury; and it
appears from the old cases, and also the two cases above cited, that
defamation carries with it a presumption of malice, and that it is
_prima facie_ evidence of malice, but the occasion on which the
defamatory words are spoken may rebut the _prima facie_ inference of
malice, and then additional evidence may be given to show that there
was malice, and the jury are to find on that evidence and on the libel
itself whether there be malice. In the case of Wright _v._ Woodgate, 2
C. M. & R. 573, it is thus laid down by Parke, B., at p. 577: “The
proper meaning of a privileged communication is only this, that the
occasion on which the communication was made rebuts the inference
_prima facie_ arising from a statement prejudicial to the character of
the plaintiff, and puts it upon him to prove that there was malice; in
fact, that the defendant was actuated by motives of personal spite or
ill-will, independent of the occasion on which the communication was
made. In the present case, it became, in my opinion, incumbent upon
the plaintiff to show malice in fact. This he might have made out,
either from the language of the letter itself, or by extrinsic
evidence, as by proof of the conduct or expressions of the defendant,
showing that he was actuated by a motive of personal ill-will.” And in
Taylor _v._ Hawkins, Lord Campbell lays it down at p. 321 thus: “The
rule is, that, if the occasion be such as repels the presumption of
malice, the communication is privileged, and the plaintiff must then,
if he can, give evidence of malice.” I think that the fact of his
charging her with stealing the £3 10_s._, and, not making that charge
till after she had threatened to leave, and then the fact of his
telling her that if she had come back he should have said nothing
about it, and that if she owned she took it he would give her a
reference, were sufficient facts to justify the jury in inferring that
he was not performing the important duty between man and man, of
stating what he believed to be the plaintiff’s true character, when he
spoke the words which are the subject of this action.

WILLIAMS, WILLES, and BYLES, JJ., concurred.

_Rule refused._[523]

DAVIS _v._ SHEPSTONE
IN THE PRIVY COUNCIL, MARCH 5, 1886.
_Reported in 11 Appeal Cases, 187._

The judgment of their lordships was delivered by

LORD HERSCHELL, L. C.[524] This is an appeal from a judgment of the Supreme Court of the Colony of Natal refusing a new trial in an action brought against the appellants in which the respondent obtained a verdict for £500 damages.

The action was brought to recover damages for alleged libels published by the appellants in the “Natal Witness” newspaper in the months of March and May, 1883.

The respondent was, in December, 1882, appointed Resident Commissioner in Zululand, and proceeded in the discharge of his duties to the Zulu reserve territory. In the month of March, 1883, the appellants published in an issue of their newspaper serious allegations with reference to the conduct of the respondent whilst in the execution of his office in the reserve territory. They stated that he had not only himself violently assaulted a Zulu chief, but had set on his native policemen to assault others. Upon the assumption that these statements were true, they commented upon his conduct in terms of great severity, observing, “We have always regarded Mr. Shepstone as a most unfit man to send to Zululand, if for no other reason than this, that the Zulus entertain towards him neither respect nor confidence. To these disqualifications he has now, if our information is correct, added another which is far more damnatory. Such an act as he has now been guilty of cannot be passed over, if any kind of friendly relations are to be maintained between the colony and Zululand. There are difficulties enough in that direction without need for them to be increased by the headstrong and almost insane imprudence and want of self-respect of the official who unworthily represents the government of the Queen.”

In the same issue, under the heading “Zululand,” there appeared a statement that four messengers had come from Natal to Zululand, from whom details had been obtained of the respondent’s treatment of certain chiefs of the reserved territory who had visited Cetewayo, and, what purported to be the account derived from these messengers of the assault and abusive language of which the respondent had been guilty, was given in detail.

On the 16th of May, 1883, the appellants published a further article, relating to the respondent, which commenced as follows:—“Some time ago we stated in these columns that Mr. John Shepstone, whilst in Zululand, had committed a most unprovoked and altogether incomprehensible assault upon certain Zulu chiefs. At the time the statement was made, a good deal of doubt was thrown upon the truth of the story. We are now in a position to make public full details of the affair, which the closest investigation will prove to be correct. A representative of this journal, learning that a deputation had come to Natal to complain of the attack, met five of the number, and in the presence of the competent interpreters took down the stories of each man.”

The article then gave at length the statements so taken down, which disclosed, if true, the grossest misconduct on the part of the respondent. It was in respect of these publications of the appellants that the action was brought by the respondent.

The appellants by their defence averred that the conduct of the plaintiff as British Resident Commissioner was a matter of general public interest affecting the territory of Natal, and that the alleged libels constituted a fair and accurate report of the information brought to the Governor of Natal, and published in the colony by messengers from Zululand and its king as to the conduct of the plaintiff in the discharge of the duties of his office, and a fair and impartial comment upon the conduct of the plaintiff in his public capacity published _bona fide_ and without malice.

The case came on for trial before Mr. Justice Wragg and a jury on the 4th of September, 1883, when it was proved that the allegations of misconduct made against Mr. Shepstone were absolutely without foundation, and no attempt was made to support them by evidence. It appeared that the messengers from whom the statements contained in the issue in March were derived had come from Zululand to see the Bishop of Natal, and that their statements had been conveyed to the editor of a newspaper by a letter from the bishop. The statements contained in the issue of May were communicated by a Mr. Watson, who was connected with the staff of the newspaper, and who had sought and obtained an interview with certain Zulus when on their way to convey a message from the king to the Governor of Natal.

At the close of the evidence the learned judge summed up the case to the jury, who returned a verdict for the plaintiff, the present respondent, for £500.

Application was afterwards made to the Supreme Court to grant a new trial, but this application was refused, and the present appeal was then brought. The appellants rested their appeal upon two grounds, first, that the learned judge misdirected the jury in leaving to them the question of privilege and in not telling them that the occasion was a privileged one. The second ground insisted upon was that the damages were excessive. Their Lordships are of opinion that the contention that the learned judge ought to have told the jury that the occasion was a privileged one, and that the plaintiff could only succeed on proof of express malice, is not well founded.

There is no doubt that the public acts of a public man may lawfully be made the subject of fair comment or criticism, not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between comment or criticism and allegations of fact, such as that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of misconduct.[525]

In the present case the appellants, in the passages which were complained of as libellous, charged the respondent, as now appears without foundation, with having been guilty of specific acts of misconduct, and then proceeded, on the assumption that the charges were true, to comment upon his proceedings in language in the highest degree offensive and injurious; not only so, but they themselves vouched for the statements by asserting that though some doubt had been thrown upon the truth of the story, the closest investigation would prove it to be correct. In their Lordships’ opinion there is no warrant for the doctrine that defamatory matter thus published is regarded by the law as the subject of any privilege.

It was insisted by the counsel for the appellants that the publications were privileged, as being a fair and accurate report of the statements made by certain messengers from King Cetewayo upon a subject of public importance. It has, indeed, been held that fair and accurate reports of proceedings in parliament and in courts of justice are privileged, even though they contain defamatory matter affecting the character of individuals.

But in the case of Purcell _v._ Sowler the Court of Appeal expressly refused to extend the privilege even to the report of a meeting of poor law guardians, at which accusations of misconduct were made against their medical officer. And in their Lordships’ opinion it is clear that it cannot be extended to a report of statements made to the Bishop of Natal, and by him transmitted to the appellants, or to statements made to a reporter in the employ of the appellants, who for the purposes of the newspaper, sought an interview with messengers on their way to lay a complaint before the governor.

The language used by the learned judge in summing up the present case to the jury is open to some criticism, and does not contain so clear and complete an exposition of the law as might be desired. But in their Lordships’ opinion, so far as it erred, it erred in being too favorable to the appellants, and it is not open to any complaint on their part.

The only question that remains is as to the amount of damages. The assessment of these is peculiarly the province of the jury in an action of libel. The damages in such an action are not limited to the amount of pecuniary loss which the plaintiff is able to prove. And their Lordships see no reason for saying that the damages awarded were excessive or for interfering with the finding of the jury in this respect.

They will, therefore, humbly advise Her Majesty that the judgment appealed against should be affirmed and the appeal dismissed with costs.