[IN THE COURT OF APPEAL.]

HUNT v. THE STAR NEWSPAPER COMPANY, LIMITED.

Defamation - Libel - Personal Imputation - Plea of Fair Comment - Meaning and Effect of - Misdirection - New Trial.

In an action for libel based upon articles published in the defendants' newspaper the plaintiff alleged that the articles imputed to him improper conduct in the discharge of his duties as deputy returning officer at a municipal election. The defendants pleaded justification and fair comment. At the trial the judge directed the jury that if they found the statements in the articles to be libellous and the facts truly stated, then the question for them would be whether the comment was bona fide and fair, or whether it tended, as alleged, to charge the plaintiff with improper conduct. No separate questions were left to the jury, and they returned a general verdict for the plaintiff with damages. Upon an application for a new trial:-

Held by the Court of Appeal, that the question of fair comment had not been properly left to the jury as a separate issue, and that there must be a new trial on the ground of misdirection.

Dakhyl v. Labouchere (1) applied.

APPLICATION by the defendants for judgment or a new trial on appeal from the verdict of a jury at the trial before Lawrance J.

(1) See note at end of this report.

The action was for damages for a libel contained in certain statements published by the defendants in two articles in the Star newspaper of March 2, 1907, and in the Morning Leader of March 4, 1907. The plaintiff, Mr. John Hunt, town clerk of the city of Westminster, alleged that these statements charged him with not having acted honestly and bona fide in the discharge of his statutory duties as deputy returning officer for the London County Council elections, with having acted improperly and unfairly in the interests of one political party as against the other, and with having been actuated by political bias.

It appeared that the plaintiff acted as deputy returning officer at the election of members of the London County Council for Westminster which was held on March 2, 1907. At the Caxton Hall polling station he had occasion, in discharge of his statutory duties, to require certain personation agents to retire from positions which they had taken up in the room. This occasioned disputes between him and the said agents and others, and the removal by his order of certain persons from the said polling station. The evidence taken at the trial as to what took place on the occasion in question was conflicting. The following were the articles complained of:-

In the Star:

"In Westminster.

"Serious Allegations made by Progressive Candidates.

"The Star was informed this afternoon that formal protests had been handed in by the Progressive candidates in Westminster, Messrs. Campbell and Herrin, against the action of Mr. John Hunt (clerk to the Moderate city council), who was the deputy returning officer at the Caxton Hall polling station. Mr. Hunt ordered the exclusion from the hall of the Progressive personation agents, one of whom was Major Hobart, lately Liberal candidate for the division, and it is further alleged that Mr. Campbell, although one of the candidates, was refused admission. It is further stated that one of the Westminster City Council officials doing duty at the polling station used the words 'I am not going to take the opinion of my political opponents' to Mr. Herrin, the other Progressive candidate. This assertion of political bias on the part of an officer at a polling station is to be the subject of

grave inquiry, and we are assured that the attention of Parliament will be called to the matter next week. The chairman of the Westminster Liberal Association told a Star reporter this evening that an appeal was being made to Mr. Gomme (clerk of the London County Council and returning officer) to overrule the decision of his deputy at Westminster. 'It is absolutely necessary that personation agents should be at Caxton Hall,' he added. 'Already we have detected plural voters recording second votes, and in cases where the evidence is conclusive we are determined to prosecute.'"

In the Morning Leader:

"Obstructing Progressives.

"Extraordinary Action by Westminster Polling Official.

"At the Caxton Hall (Westminster) polling station extraordinary obstacles were placed in the way of the Progressive polling agents in the performance of their duties - duties of particular importance in a constituency where plural voting exists on an abnormal scale. Mr. John Hunt, the town clerk, who is a Moderate, relegated the Progressive agents to a part of the hall where they could neither see the voters' faces nor hear their numbers, and were thus completely frustrated in their legitimate duty of seeing whether an elector was voting for the second time. The remonstrances of Major Hobart (late Liberal candidate for Westminster) and Mr. Montefiore Brice (chairman of the Westminster Liberal Association), who were acting as unpaid polling agents, resulted in their being turned out of the hall by the police, together with Captain Hemphill. On the failure of an attempt to obtain fair treatment, the Progressive candidates, Mr. W. B. Campbell and Mr. Edwin Herrin, handed in a formal protest, and withdrew their polling agents from the hall. Mr. Hunt told Mr. Herrin that he did not intend to take advice from the opposition. The incident is to be made the subject of a question in Parliament."

The defendants by their statement of defence denied that the words complained of bore the meaning alleged and said that they were not libellous. They pleaded that in so far as the said words consisted of statements of fact they were in their natural

and ordinary signification true in substance and in fact, and that in so far as they consisted of comment they were fair and bona fide comment upon a matter of public interest and importance.

Lawrance J. in summing up to the jury, after reading the articles in question and the allegations of the plaintiff as to what the defendants meant thereby, said: "If a man writes something which has a tendency to prejudice a person in the office he is holding and says that he has not conducted himself properly in that office, that would be a libel. The question whether the words did mean what I have just read to you, the innuendo, is first of all a question for me whether the words are capable of that construction, and I hold that they are capable of that construction, and then it remains for you to say whether that is the proper view of the case." Then, after alluding to the defence that the words complained of were fair and bona fide comment upon a matter of public interest and importance, he said: "It is for me to say whether it is matter of public interest, as undoubtedly it was. It was a matter of public interest that a gentleman occupying the position of the plaintiff should properly discharge his duties. Then the question for you will be, if you find that these words were libellous and were intended to convey the meaning that I have already read to you that is alleged by the plaintiff, whether the words which purport to be statements of what took place are, in fact, true in substance and in fact. I need hardly point out to you that a man's words, however libellous they may be, if they are true would not be libel, and the plaintiff would not be entitled to damages. The question is whether the words, in so far as they relate to what took place at the polling station upon this particular day, are true, and in so far as they consist of comment whether it was bona fide and fair comment. The comment is their own remark made with regard to what is alleged to have taken place. If a newspaper publishes exactly what took place with no comment whatever, they would be justified in so doing as a matter of public interest, but if they add to that comment of their own, then the question is whether that comment was bona fide and fair comment, or whether it was comment which tended, as alleged here, to charge the plaintiff

with improper conduct. That is, so far as the law goes, the question in this case."

Then, after reviewing the evidence at length, the learned judge continued: "Now, gentlemen, I have gone purposely at some length through the evidence, and you have the whole matter before you. I have told you the law on the question of libel, and it is for you to say whether these paragraphs which were inserted in these newspapers are libels or not. If you come to the conclusion that they are libels and are such as would have a tendency to prejudice the plaintiff in his position of town clerk of Westminster, of presiding officer and deputy returning officer of the county council elections, then you must give him your verdict. Then the next question is whether the defence is made out that the accounts given in these two articles of what happened at the Caxton Hall on this occasion were true in substance and in fact as far as they related to the details of what took place at the Caxton Hall. Then as far as comment is concerned you will consider whether that comment is fair and bona fide comment, or whether it is for the purpose of suggesting, as is alleged by the plaintiff, that he was acting in an improper way." In conclusion the learned judge said: "Now, gentlemen, that is the whole case. It is for you to decide, first of all, whether these articles constitute a libel, and, if so, the next question for you will be whether the defendants can make out their defence of justification, whether the words are true in so far as they purport to be an account of what took place at the hall, and whether the comment made upon them was fair comment. If you find that the words were libellous and that the defence is not made out you will say so. It is entirely for you to take the facts into your consideration and say, if you find for the plaintiff, what you think are fair and reasonable damages."

The jury returned a verdict for the plaintiff with 800l. damages. The defendants moved for a new trial on the ground, inter alia, that the learned judge had misdirected the jury by directing them in regard to the plea of fair comment that the question for the jury to decide was whether the comment was bona fide and fair comment or whether it was comment which tended to charge the plaintiff with improper conduct; and,

further, that he had misdirected the jury by directing them that if they came to the conclusion that the words complained of were libels and were such as would have a tendency to prejudice the plaintiff in his position, they must return a verdict for him.

Eldon Bankes, K.C., and Norman Craig, for the appellants. The observations made by the appellants' paper do not exceed the limits of fair comment. If the facts are truly stated, as they were in the present case, a newspaper is entitled to comment upon them, even though such comment may seem libellous. The ruling of Kennedy J. in his summing up in Joynt v. Cycle Trade Publishing Co. (1) correctly states the right of a paper to discuss and comment on facts of this kind, and this ruling was adopted and approved in Dakhyl v. Labouchere. (2) On this point there was a want of proper direction by the judge to the jury. The evidence was laid before the jury without any guide or any warning as to what was and what was not fair comment. The learned judge in the Court below has misunderstood and misstated the law in his directions to the jury, and for this reason alone the appellants are entitled to a new trial.

The nature and extent of fair comment are also clearly explained in Merivale v. Carson. (3) This too was approved in Dakhyl v. Labouchere. (2) There is no difference in principle between what is fair criticism of a work like a book or a play and fair criticism of a man. The standard of criticism is the same in both cases.

The learned judge directed the jury that if they thought the words conveyed an imputation they could not be fair comment. The defendants were entitled to have the verdict of the jury upon the question of fair comment, and that question was never properly left to them: Campbell v. Spottiswoode. (4) Lord Atkinson in Dakhyl v. Labouchere (2) said: "A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts; in other words, in my view, if it be a reasonable

(1) [1904] 2 K. B. 292, at p. 294.

(2) See note at end of this report.

(3) (1887) 20 Q. B. D. 275, at p. 281.

(4) (1863) 3 B. & S. 769.

inference from those facts. Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determination of the judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the jury to determine whether in that particular case it ought to be drawn." Applying that here, the defendants were entitled to have the question of fair comment left to the jury in that way. It was not so left to them, and there ought to be a new trial accordingly.

Shearman, K.C., R. F. Colam, and Courthope Munroe, for the respondent. At the trial the plea of justification was put forward and strenuously argued. If the facts were not truly stated there could be no fair comment: Joynt v. Cycle Trade Publishing Co. (1) The judge made it clear that he left the question of fair comment to the jury. The two questions left to them were, first, were the facts as stated true, and, secondly, if they were true, was the comment fair? They found in effect that the facts were not truly stated and that the comment was unfair.

It is said that the damages are excessive, but that is no ground for a new trial unless the Court thinks that, having regard to all the circumstances of the case, the damages are so large that no jury could reasonably have given them: Praed v. Graham. (2)

[On this point they were stopped by the Court.]

Eldon Bankes, K.C., in reply. Taking the summing up as a whole, the effect of it was a direction to the jury that if they found the articles contained an imputation against the plaintiff, then they need not consider whether there was fair comment or not. The real question was never left to the jury at all. [He also referred to O'Brien v. Marquis of Salisbury (3), Lefroy v. Burnside (No. 2) (4), and Fraser on Torts, 6th ed. p. 109.]

March 20. COZENS-HARDY M.R.This is an application for a new trial on the ground of misdirection. The action was for libel, based upon two articles in the Star and the

(1) [1904] 2 K. B. 292, at p. 294.

(2) (1889) 24 Q. B. D. 53.

(3) (1889) 6 Times L. R. 133.

(4) (1879) 4 L. R. Ir. 556.

Morning Leader newspapers. The articles complained of related to the plaintiff, who was deputy returning officer at the Caxton Hall polling station at the election for the London County Council in March, 1907. I do not think it necessary to read the articles in full. The article in the Star is headed "In Westminster. Serious Allegations made by Progressive Candidates"; and the article in the Morning Leader is headed "Obstructing Progressives. Extraordinary Action by Westminster Polling Official." Each article stated certain alleged facts with reference to what took place in the Caxton Hall and, as the plaintiff asserts, charged the plaintiff with not having acted honestly in the discharge of his statutory duties as deputy returning officer, and as having been influenced by political bias with intent to prejudice the Progressive candidates. The defendants pleaded that the words complained of were in their natural and ordinary signification true in substance and in fact, and also, as a separate defence, that in so far as the said words consisted of comment the same were fair and bona fide comment upon a matter of public interest and importance. The issue of justification was strenuously fought at the trial. The learned judge, in summing up, after holding that it was a matter of public interest that a gentleman occupying the position of the plaintiff should properly discharge his duties, told the jury that the question for them would be, if they found that the words were libellous and were intended to convey the meaning alleged by the plaintiff, whether the words which purported to be statements of what took place were, in fact, true in substance and in fact. He pointed out that if these questions were answered in the affirmative, or, in other words, if the justification were proved, the plaintiff would not be entitled to damages, and he then dealt with the plea of fair comment as follows: "If a newspaper publishes exactly what took place with no comment whatever, they would be justified in so doing as a matter of public interest, but if they add to that comment of their own, then the question is whether that comment was bona fide and fair comment, or whether it was comment which tended, as alleged here, to charge the plaintiff with improper conduct." And at the end of the summing up he says this: "If you come to the conclusion that

they are libels and are such as would have a tendency to prejudice the plaintiff in his position of town clerk of Westminster and of presiding officer and deputy returning officer of the county council elections, then you must give him your verdict. Then the next question is whether the defence is made out that the accounts given in these two articles of what happened at the Caxton Hall on this occasion were true in substance and in fact as far as they related to the details of what took place at the Caxton Hall. Then, as far as comment is concerned, you will consider whether that comment is fair and bona fide comment, or whether it is for the purpose of suggesting, as is alleged by the plaintiff, that he was acting in an improper way." I regret that no separate questions were left to the jury. A general verdict was found in favour of the plaintiff with 800l. damages. Now it seems to me that the learned judge did not properly direct the jury as to the meaning and effect of the plea of fair comment. The words which I have read seem to indicate that that cannot be fair comment which tends to prejudice or to impute blame to the plaintiff. In my opinion that is not the law. The defence of fair comment only arises in the event of the plea of justification failing, but the plea of justification may fail by reason of the facts stated not being substantially true. But there still remains the question whether, if, and only if, the facts are substantially true, the comment made by the defendants, based upon those true facts, was fair and such as might, in the opinion of the jury, be reasonably made. I cannot do better than adopt the language of Kennedy J. in Joynt v. Cycle Trade Publishing Co. (1) "The comment must .... not misstate facts, because a comment cannot be fair which is built upon facts which are not truly stated, and, further, it must not convey imputations of an evil sort, except so far as the facts, truly stated, warrant the imputation." And in Dakhyl v. Labouchere (2) Lord Atkinson said: "A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts - in other words, in my view, if it be a reasonable inference from those facts. Whether the personal attack in any given case can reasonably be

(1) [1904] 2 K. B. 292.

(2) See note at end of this report.

inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determination of the judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the jury to determine whether in that particular case it ought to be drawn." In substance it seems to me that the issue of fair comment was not left to the jury. It is highly probable that the jury thought that the facts were not truly stated, in which case the verdict for the plaintiff would be plainly justified; but it is also possible that they thought that, although the facts were truly stated, they must, as the learned judge told them, find for the plaintiff, if in the view of the jury the articles in question imputed improper conduct to the plaintiff. In my opinion the defendants are entitled to have a new trial in which both the issues raised by them may be presented to a jury with a proper and adequate direction. There must be an order for a new trial, but under the circumstances I think the costs of this appeal, as well as of the first trial, should abide the result of the second trial.

FLETCHER MOULTON L.J.With the greater part of the argument that was addressed to us by counsel for the appellants in this case I thoroughly disagree. That argument was based mainly upon an application of the language of the judgment in Merivale v. Carson (1) to the case of the imputation of corrupt or disgraceful motives to an individual, and the contention was that, if in his comment upon facts a writer attributed such motives to an individual, such language was covered by the plea of fair comment unless the views it expressed could not be held by any fair man, however prejudiced he might be and however exaggerated and obstinate his views. In my opinion this is a complete misapprehension of the law as laid down by that case, and is absolutely opposed to what is now settled law with regard to fair comment. The case of Merivale v. Carson (1) related to a criticism upon a play, and not to a question of libel on personal character, and the language of the judgments in that case shews that both the eminent judges who decided it intended to deal with literary criticism. The law laid down by the decision in

(1) 20 Q. B. D. 275, at p. 281.

that case has therefore nothing to do with personal libels such as the imputation of disgraceful motives to an individual. In order to demonstrate this it is only necessary to quote what may be said to be the leading passage in the judgment of Lord Esher. He says: "What is the meaning of a 'fair comment'? I think the meaning is this. Is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work. It is very easy to say what clearly would be beyond that limit. If, for instance, the writer attacked the private character of the author." With this language as applied to literary criticism I fully agree, but it gives no support to the contention of the counsel for the appellants in the present case, seeing that we have here to deal with imputations of motives which unquestionably amount to attacks on the character of the plaintiff.

The law as to fair comment, so far as is material to the present case, stands as follows: In the first place, comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v. Chapman. (1) The justice of this rule is obvious. If the facts are stated separately and the comment appears as an inference drawn from those facts, any injustice that it might do will be to some extent negatived by the reader seeing the grounds upon which the unfavourable inference is based. But if fact and comment be intermingled so that it is not reasonably clear what portion purports to be inference, he will naturally suppose that the injurious statements are based on adequate grounds known to the writer though not necessarily set out by him. In the one case the insufficiency of the facts to support the inference will lead fair-minded men to reject the inference. In the other case it merely points to the existence of extrinsic facts which the writer considers to warrant the language he uses. In this relation

(1) (1853) 3 C. & K. 286.

I must express my disagreement with the view apparently taken by the Court of Queen's Bench in Ireland in the case of Lefroy v. Burnside (1), where the imputation was that the plaintiffs dishonestly and corruptly supplied to a newspaper certain information. The Court treated the qualifications "dishonestly" or "corruptly" as clearly comment. In my opinion they are not comment, but constitute allegations of fact. It would have startled a pleader of the old school if he had been told that, in alleging that the defendant "fraudulently represented," he was indulging in comment. By the use of the word "fraudulently" he was probably making the most important allegation of fact in the whole case. Any matter, therefore, which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment. In the next place, in order to give room for the plea of fair comment the facts must be truly stated. If the facts upon which the comment purports to be made do not exist the foundation of the plea fails. This has been so frequently laid down authoritatively that I do not need to dwell further upon it: see, for instance, the direction given by Kennedy J. to the jury in Joynt v. Cycle Trade Publishing Co. (2), which has been frequently approved of by the Courts.

Finally, comment must not convey imputations of an evil sort except so far as the facts truly stated warrant the imputation. This is the language of Kennedy J. in the case to which I have just referred. It is based on the judgments in Campbell v. Spottiswoode (3), a case of the highest authority, and is, in my opinion, unquestionably a true statement of the law. The only portion of the statement which requires examination is the phrase "except so far as the facts truly stated warrant the imputation." Speaking for myself, the words "warrant the imputation" can bear but one meaning, and that meaning is stated so plainly by Lord Atkinson in the opinion delivered by him in the case of Dakhyl v. Labouchere (4) in the House of Lords that I cannot do better than quote his language: "Whether the personal attack in any given case can reasonably be inferred from the truly

(1) 4 L. R. Ir. 556.

(2) [1904] 2 K. B. 292, at p. 294.

(3) 3 B. & S. 769.

(4) See note at end of this report.

stated facts upon which it purports to be a comment is a matter of law for the determination of the judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the jury to determine whether in that particular case it ought to be drawn." In other words, a libellous imputation is not warranted by the facts unless the jury hold that it is a conclusion which ought to be drawn from those facts. Any other interpretation would amount to saying that, where facts were only sufficient to raise a suspicion of a criminal or disgraceful motive, a writer might allege such motive as a fact and protect himself under the plea of fair comment. No such latitude is allowed by English law. To allege a criminal intention or a disreputable motive as actuating an individual is to make an allegation of fact which must be supported by adequate evidence. I agree that an allegation of fact may be justified by its being an inference from other facts truly stated, but, as Lord Atkinson says in the passage just quoted, in order to warrant it the jury must be satisfied that such inference ought to be drawn from those facts.

Applying this law to the facts of the present case, I would say, first, that I have a great doubt whether there is anything in the publication complained of which can fairly be called comment at all, unless it be the headlines of the second article. All the rest appears to me to purport to be statement of fact, and therefore, in my opinion, the defendants could only succeed by establishing their plea of justification with respect to it. Even this plea was scarcely open to them, because the innuendoes alleged were so clearly borne out by the publications themselves that, so far as I can learn from the counsel for the defendants, they did not seriously attempt to contest them or to support the plea of justification. I have great doubt, therefore, whether the learned judge ought to have allowed the issue of fair comment to go to the jury at all (except, perhaps, as to those headlines). But the judge permitted it to go to the jury, and, therefore, he was bound to give them a proper direction as to it. In my opinion the direction he gave was so expressed as to bear a meaning which might have misled the jury and affected their verdict, and as it

was a general verdict, not distinguishing the issues, but giving a sum by way of damages in respect of both, we have no alternative but to send the case back for a new trial, because it is impossible to say to what extent the verdict may have been influenced by such misdirection.

The first misdirection to which I refer is in the passage of the summing up which reads as follows: "If a newspaper publishes exactly what took place with no comment whatever, they would be justified in so doing as a matter of public interest, but if they add to that comment of their own, then the question is whether that comment was bona fide and fair comment, or whether it was comment which tended, as alleged here, to charge the plaintiff with improper conduct." Taken by itself this would seem to be a direction that if the comment charged the plaintiff with improper conduct it was outside the plea of fair comment, whether or not that charge was warranted by the facts, and although I think it clear from the sentence that immediately follows that the learned judge did not intend to give any such erroneous direction, and although I am of opinion that the defendants by their conduct of the case (as admitted before us by their counsel) did not seriously suggest that the matter was justified, I am unable to say that this direction may not have been misunderstood by the jury, and influenced their decision at least as to the amount of damages given. Two other passages towards the end of the summing up are also open to exception. The first reads as follows: "If you come to the conclusion that they are libels and are such as would have a tendency to prejudice the plaintiff in his position of town clerk of Westminster and presiding officer and deputy returning officer of the county council elections, then you must give him your verdict." This appears to ignore the question of fair comment altogether. The second reads: "Then as far as comment is concerned you will consider whether that comment is fair and bona fide comment, or whether it is for the purpose of suggesting, as is alleged by the plaintiff, that he was acting in an improper way." This is open to the misinterpretation to which I have already referred.

I am therefore of opinion that the case must go back for trial,

but under the circumstances I think that the costs of the appeal as well as of the first trial should abide the event.

BUCKLEY L.J.In my judgment there was such misdirection in this case as that the defendants are entitled to a new trial. The action was one for libel, to which the defendants pleaded justification and fair comment. The alleged libels consisted of certain statements of fact as to what took place at the Caxton Hall polling station, and further matter which conveyed an imputation that the plaintiff, who was the deputy returning officer at that station, was actuated by an improper motive, namely, by political bias. The defendants' case was that the statements of fact contained in the alleged libels were true, and, as to the imputation of motive, that it was protected by the defence of fair comment. The substantial point of the alleged libel lay in the imputation that the plaintiff, being a Moderate, had in his conduct as returning officer obstructed the Progressives and acted unfairly towards their personation agents. Where justification and fair comment are pleaded as defences the latter is a weapon which comes into action if and when the former has failed. The defence of fair comment assumes that the matter to which it relates would be defamatory if it were not protected by the defence of fair comment. A fair and bona fide comment on a matter of public interest suffices to protect that which would otherwise be defamatory. Comment which tends to prejudice may still be fair; it may convey imputations of bad motive so far as the facts truly stated justify such an imputation. It is for the jury to say whether the facts justify the imputation or not. The fault here is that that question has never properly been left to them. The question for the jury is whether the comment is in their opinion beyond that which a fair man, however extreme might be his views in the matter, might make honestly and without malice, and which was not without foundation. The defence of fair comment extends to the imputation of motives. Cockburn C.J. in Wason v. Walter (1), speaking of the development of the law of libel, says: "The full liberty of public writers to comment on the conduct and motives of public

(1) (1868) L. R. 4 Q. B. 73, at p. 93.

men has only in very recent times been recognized." Whether the imputation is within the defence of fair comment or not is for the jury. It is for them to say whether the imputation was warranted by the facts and honestly represented the opinion of the person who gave expression to it, and that his belief was not without foundation. Cockburn C.J. in Campbell v. Spottiswoode (1) says "that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct so that a jury shall say that the criticism was not only honest but also well-founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty he is therefore justified in assailing his conduct as dishonest." Whether the criticism be upon a literary production or the conduct of a public man, it is for the jury, I think, to find whether the imputation based upon facts truly stated does or does not honestly represent the opinion of the person who gives expression to it and was not without foundation.

In the present case the learned judge, in my judgment, failed to direct the jury that the comment which charged the plaintiff with improper conduct would not be libellous if it was the honest expression of the well-founded opinion of the writer based upon the true facts. The jury were in substance directed upon the question of fair comment that an imputation which charged the plaintiff with improper conduct was libellous whether it was or was not an honest expression of opinion upon a true state of facts, or at any rate were not directed that it was for them to say whether the imputation was or was not an honest expression of opinion and had foundation. This misdirection may have caused a miscarriage in either one or both of two ways. It may be, and it seems to me impossible to say that it was not, the case that but for this direction the jury would not have found the matter libellous at all. They may have thought that the statements of fact although not absolutely were yet substantially true, but that the imputation of

(1) 3 B. & S. 769, at p. 777.

political bias which was really the substance of the matter was libellous whether it was an honest expression of opinion warranted by the facts or not. And, secondly, it may well be that the imputation of misconduct originating from political bias weighed largely with the jury in assessing the damages, and that they understood that they were bound to find that to be libellous. These circumstances are not to my mind answered by saying that to some extent the statements of fact as to what took place in the polling booth are not wholly accurate. It was for the jury to say whether they were substantially true or not, and it may well be that, while finding them to be substantially true, they held the matter to be libellous and assessed the damages upon the wrong ground as regards the defence of fair comment. I think, therefore, that the order must go for a new trial upon the ground that the defence of fair comment was not properly put to the jury. I agree as regards the costs.

Solicitors for appellants: Lewis & Lewis.

Solicitors for respondent: Allen & Son.

NOTE (see ante, p. 309 (1)).

[HOUSE OF LORDS.]

H. L. (E.). Feb. 14, 15, 25; March 14, 1907.

DAKHYL v. LABOUCHERE.

THIS was an appeal from a decision of the Court of Appeal, setting aside a verdict and judgment for 1000l. in favour of the appellant (the plaintiff in the action) and ordering a new trial.

The appellant was a doctor of medicine, a bachelor of science, and a bachelor of arts in the University of Paris; and he had since August, 1902, practised as a doctor in Kensington, specializing in the treatment of diseases of the ear, nose, and throat.

The respondent was the editor and proprietor of the newspaper called Truth. In the issue of that paper dated April 2, 1903, he had published the following paragraph relating to the appellant:-

"Sundry inquiries have reached me during the last week or two respecting one Dr. H. N. Dakhyl, of 178, Holland Road, Kensington, who appends to his name the symbols 'B.Sc., B.A., M.D. Paris, &c.,' and describes himself as 'a specialist for the treatment of deafness, ear, nose, and throat diseases.' Possibly this gentleman may possess all the talents which his alleged foreign

degrees denote, but, of course, he is not a qualified medical practitioner, and he happens to be the late 'physician' to the notorious Drouet Institute for the Deaf. In other words, he is a quack of the rankest species. I presume that he has left the Drouet gang in order to carry on a 'practice' of the same class on his own account, and probably he is well qualified to succeed in that peculiar line."

The appellant (the plaintiff) then brought this action claiming damages for libel. The respondent, in his defence, pleaded justification and fair comment. The action was tried before the Lord Chief Justice and a special jury, and resulted, as above stated, in a verdict and judgment for the appellant. On the motion of the respondent, the Court of Appeal (Collins M.R. and Stirling and Mathew L.JJ.) on July 28, 1904, set aside the verdict and judgment and ordered a new trial, on the grounds that the jury might not have sufficiently apprehended from the summing up of the Lord Chief Justice (1.) that it was for them to decide whether the words complained of were defamatory of the appellant; and (2.) the nature and extent of the defence of fair comment.

From this decision the appellant (the plaintiff) appealed.

The effect of the summing up sufficiently appears from the judgments of the Lord Chancellor and Lord Atkinson.

Sir Edward Clarke, K.C., and Hon. Malcolm Macnaghten, for the appellant.

Shee, K.C., Eldon Bankes, K.C., and Hugh Fraser, for the respondent.

LORD LOREBURN L.C. My Lords, in this case, which was one of libel, the Court of Appeal has ordered a new trial, and I am driven to the conclusion that no other order is possible. The pith of the libel is that the defendant wrote of plaintiff as a "quack of the rankest species" in connection with his service on the staff of the Drouet Institute. The defendant denounced the Drouet Institute, on what he claimed to be public grounds, as an organized system for dishonestly obtaining money from persons suffering from deafness in hope of a cure. The defendant pleaded that his accusation against the plaintiff was true, and also that it was protected as a fair comment upon a matter of public interest. The jury found a verdict for the plaintiff for 1000l. I rest my opinion that the verdict cannot stand upon two grounds. In the first place, the defendant was entitled to have the jury's decision, on his plea of justification, whether the words used were true in the plain meaning which the jury might attach to them. Unfortunately the learned judge told the jury more than once that the term "quack" meant a pretender to skill which the pretender did not possess. If that were a sound direction, and really it was put as a direction, there could not be a verdict on this point against the plaintiff, for admittedly he possessed skill. But there are other meanings of the word "quack," such as a person who, however skilled, lends himself to a medical imposture. The jury were the persons to affix the true meaning to the words and to say whether or not it fitted the plaintiff. But they had not the chance if they followed the judge's direction. In the second place, the defendant was, in my opinion, entitled to have the jury's decision, as to the plea of fair comment, whether or not, in all the circumstances proved, the libel went beyond a fair comment on the

plaintiff and on the system of medical enterprise with which he associated himself, as a matter of public interest treated by the defendant honestly and without malice. The plea of fair comment does not arise if the plea of justification is made good, nor can it arise unless there is an imputation on a plaintiff. It is precisely where the criticism would otherwise be actionable as a libel that the defence of fair comment comes in. But the learned judge put aside that defence, and told the jury that unless a justification was proved they were bound to find a verdict for the plaintiff, and that, unless justified, the libel is not fair comment and cannot come within the region of fair comment. I agree in what Sir Edward Clarke said to us of the evil which may flow from an order for a new trial in this case. In all cases it is a most deplorable result, not to be entertained upon any but the most solid grounds, as the only means of redressing a clear miscarriage. In the present case I regret it all the more, because the amount of the verdict seems to indicate that the jury took the plaintiff's view of the facts. But I cannot reconcile myself to allowing a verdict to stand when I am convinced that the opinion of the jury was not really taken on two vital points on which the defendant was in law entitled to insist and did insist.

LORD ROBERTSON. I entirely concur in the judgment just delivered by my noble and learned friend on the woolsack.

LORD ATKINSON. My Lords, I concur in the opinion that the appeal should be dismissed and the judgment of the Court of Appeal affirmed. [His Lordship then referred to certain passages in the summing up of the Lord Chief Justice, and continued:-] From these and other passages to the same effect contained in the summing up, it is, I think, clear that at the trial Mr. Shee, on behalf of the defendant, put forward, or attempted to put forward, the same contentions he has put forward before your Lordships - namely, (1.) that the accusation made against the plaintiff in the words which have been described as the sting of the libel amounted in effect to this, and only to this, that the plaintiff "was a quack of the rankest species by reason of his connection with the Drouet Institute, and by reason of his having resorted to and adopted the quack methods of that notorious establishment"; and (2.) that the libel so interpreted was true in substance and in fact, or if not was a fair comment. I do not for a moment suggest that the meaning thus put upon the libel by the defendant is its true meaning, but I think it would be impossible successfully to contend that it is not reasonably susceptible of that construction, or, to use the words of Lord Esher in Merivale v. Carson ⁽¹⁾, that "it could not be thought by any reasonable man to have that meaning." If that be so, as I think it is, it was the light of the defendant to have it in some form of words distinctly left to the jury to say whether the meaning so put upon the libel by the defendant was, in fact, the meaning it conveyed to the mind of the ordinary reader. This, however, was not done. No such question was ever left to the jury. The contention was practically ruled out; and the reason why it was not left to them is apparently this, that the libel, read in the sense contended for by the

(1) (1887) 20 Q. B. D. 279.

defendant, does not necessarily impute to the plaintiff want of skill or professional incompetence at all, whereas it would appear to me that the learned Chief Justice was of opinion that the words "he is a quack of the rankest species" necessarily conveyed an imputation of want of skill or incompetence, and that his instruction to the jury on the point amounted to a direction to that effect. He treated the question of the plaintiffs "being a fully qualified man able to deal with the treatment" of the diseases treated in the Drouet Institute as being put beyond all controversy by his possession of the degree of M.D. of Paris, and nearly at the end of his summing up used the following words: "It seems to me that the first question you have to consider is, Has the defendant established before you that this man was a quack of the rankest description? That is the sting of the libel. I am not going over it again. I have told you what that means, and you will consider it from that point of view. If the defendant has not established it, then, of course, the plaintiff is entitled to your verdict. Upon the other part of the case, if you think the system of the Drouet Institute, which Dr. Dakhyl is now carrying on, is a system which no competent medical man ought to be a party to, then you would not think so much of him." But the only portion of his summing up in which he had purported to tell the jury what those words meant was the passage first quoted by the Master of the Rolls, in which he stated that they meant not only "an incompetent person but a person who puffs his own incompetence before the public," a person, "who pretends to medical skill he does not possess." With all respect to the learned Chief Justice, I think he was in error in the course he took. I think that in effect he took upon himself to determine the question which it was the province of the jury to in fact determine, namely, the meaning which the libel in fact convoyed to the mind of an ordinary reader - the sense in which the words complained of were to be understood by that reader. Upon the question of fair comment, with equal respect to the learned Chief Justice, I think he also fell into error. It is only necessary in order to shew that to quote two passages from his summing up dealing with this subject. They respectively run as follows: "(1.) You were told yesterday, and you were told again this morning by Mr. Shee, that the real question here was, was this fair comment, and that if it is fair comment, the fact that the defendant has used strong or exaggerated language, if honestly used, would not prevent it from being fair comment. Upon one part of the case that is a perfectly just observation, namely, upon that part of the case which involves the question of the kind of practice that the plaintiff has carried on; but I am bound to tell you that that has nothing to do with the personal attack upon the plaintiff as a man in his profession. If you find that the defendant has libelled the plaintiff in his profession as a medical man, the fact that the defendant wanted to comment upon a system which he did not approve of would be no justification at all. (2.) Therefore, in so far as this paragraph, if it be a paragraph which is otherwise libellous, relates to the system carried on by the Drouet Institute, of which the plaintiff was the physician, and to criticizing that system because it was a system purporting to advise people without seeing them, in so far as that is a matter for consideration what Mr. Shee told you about fair comment would be (and I tell you so)

absolutely right, and you ought not to condemn a man because he has used strong language about it. The other branch of the case is the attack upon the individual, and, as has been laid down by many judges of far greater experience and ability than anything I can ever hope to attain to, fair comment is not to be made the opportunity of personal attack. Therefore the first question you have to consider is, Aye or No, is there any personal attack on the plaintiff in his profession as a medical man? If there is not, the personal element goes out of the case, and you may then consider a great deal of what has been said to you as to the criticism upon the system, but if besides the system which is supposed to be attacked and criticized there is personal comment, then you have to consider whether it is true." The statement of the law contained in these passages is, I think, enforced in other portions of the summing up. I cannot find that it is in substance qualified in any. It is, in my opinion, altogether too wide. A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts - in other words, in my view, if it be a reasonable inference from those facts. Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determination of the judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the jury to determine whether in that particular case it ought to be drawn. The well-known passage from the judgment of Crompton J. in Campbell v. Spottiswoode ⁽¹⁾, relied upon so strongly by Sir Edward Clarke, was not confined to literary criticism, but applied "to writers on any public matter," and distinctly laid down the principle that if base and sordid motives which are "not warranted by the facts" be imputed, the fact that the writer bona fide believed his imputation to be well founded affords no defence. Joynt v. Cycle Trade Publishing Co. ⁽²⁾ is to the same effect. In this case the established facts might not warrant the personal charge made against the plaintiff of being "a quack of the rankest species," if that charge necessarily implied "incompetence or want of skill" on his part, but if, on the other hand, the libel bears the meaning contended for by the defendant - and, as I have already said, I think it is reasonably susceptible of that meaning - then the question whether the imputation was a fair comment in that it was warranted by the established facts was quite another matter, and should have been left to the jury to determine. The assumption on which the learned Chief Justice appears to have proceeded, namely, that incompetence or want of skill was necessarily imputed to the plaintiff, shaped and coloured his whole summing up. It led him to instruct the jury upon the law in a manner which amounted to misdirection, and prevented him from taking the opinion of the jury on the issue raised by the defendant as to the meaning of the libel. It was, I think, an erroneous assumption, and the fact that it was acted upon necessitates that there should be a new trial, however hard it may be on the plaintiff to be burdened with the cost of a second investigation. There can be no more just and wholesome rule of practice, in my opinion, than that laid down by

(1) (1863) 3 B. & S. 769, at p. 778.

(2) [1904] 2 K. B. 292.

Lord Halsbury in McDoughall v. Knight ⁽¹⁾ as to raising new questions on appeal, but this case does not come within it. The questions raised here are not new. They were, in my view, raised below, and practically ruled upon by the Lord Chief Justice in the course of the case.

Solicitors for the appellant: Collyer-Bristow & Co.

Solicitors for the respondent: Lewis & Lewis.

G. A. S.

(1) (1889) 14 App. Cas. 194.