COUNSEL: J. T. Molony Q.C. and Hugh Davidson for the defendants.
Desmond Ackner Q.C. and David Hirst for the plaintiffs.

SOLICITORS: Simmons & Simmons; Oswald Hickson, Collier & Co.

JUDGES: Sellers, Davies and Russell L.JJ.

DATES: 1965 Jan. 12, 13, 14, 15, 18, 19; Mar. 26.
 

March 26. SELLERS L.J. stated the facts and continued: It is understandable and not inconsistent that the jury could conclude that the evidence exonerated the two plaintiffs from any discreditable or improper business conduct but could also think that any fair-minded man could criticise what they did and could hold the views expressed. The appellants have relied strongly on the findings of fair comment in their favour. The plaintiffs have objected to the form of the question, as they did at the trial, and to the answer of the jury. These contentions have to be considered in the light of the finding that the defendants in publishing the article acted with malice. It is convenient to deal with the issue of malice first.

The defendants have submitted that there was no evidence of malice proper to be left to the jury and that the jury should not have been asked the fifth question on that ground and because it was irrelevant after question 4 had been answered. They further submitted that the jury had received inadequate directions and in particular that in respect of several of the allegations of malice relied on by the plaintiffs they were of such a character and so involved that they required very clear direction by the judge as to whether or to what extent such allegations were supported by the evidence and, to the extent that they were proved, were capable in fact or in law of constituting malice.

No submission that there was no evidence to go to the jury or

1 (1868) 18 L.T.N.S. 527.

2 [1952] A.C. 345; [1952] 1 T.L.R. 532; [1952] 1 All E.R. 501, H.L.(E.).

3 (1887) 20 Q.B.D. 275; 4 T.L.R. 125, C.A.

4 The Times, March 1, 1960.

5 (1865) 4 F. & F. 224.

6 [1950] W.N. 83; 66 T.L.R. (Pt. 1) 342; [1950] 1 All E.R. 449, H.L.

7 [1919] A.C. 304; 35 T.L.R. 120, H.L.(E.).

8 (1845) 7 Q.B. 68.

9 [1958] 2 Q.B. 275; [1958] 3 W.L.R. 16; [1958] 2 All E.R. 462, C.A.

10 [1958] 1 W.L.R. 743; [1958] 2 All E.R. 516.

11 [1909] 2 K.B. 444; 25 T.L.R. 597, C.A.

12 Unreported. 1964 E. No. 261, C.A.

13 (1935) 153 L.T. 384.

14 [1925] A.C. 47; 41 T.L.R. 106, H.L.

an style='color:teal'>[* 813] that question 5 was irrelevant was made before the judge either before he summed up or after the jury’s verdict before judgment was entered. This omission is no doubt prejudicial to the defendants’s submission before us but it does not preclude them from raising the point: Banbury v. Bank of Montreal.1

The malice pleaded in the reply was that the defendants did not honestly believe what they wrote to be true; published the words with the deliberate intention of injuring the plaintiffs in their business; and were insincere in their attack on the plaintiffs’ advertising and their general methods of business because similar advertisements had previously been published by the defendant company for payment, and the defendant company had prior to publishing the advertisements sought and obtained from the plaintiff company an undertaking in the standard form of undertaking required at the time by the defendants. This undertaking related to the goods fulfilling the description or being identical with the sample, if any, and incidental requirements. It had been entered into as far back as February, 1956. Reliance was placed on a letter of March 18, 1963, canvassing advertising material for “The People” and another of December 14, 1962, from Odhams Press advertising department canvassing advertising from the plaintiffs in the magazine “Girl.”

By paragraph 3 of the reply the plaintiffs alleged that the defendants deliberately suppressed in the libel a variety of matters numbered (1) to (7) and by amendment (12) to (15). Subparagraphs (8) to (11) are of a different character and require special consideration. No greater effort could have been made by the pleader or counsel as advocate to derive malice from a fleeting article prepared and published in a routine way arising out of a complaint of a reader, a routine investigation and an article criticising the method of business of the plaintiffs of whom the editorial department had never previously heard and with regard to whom there was apparently no other interest than to uphold the criticism of Mrs. Wragg and give it some publicity as news.

The facts about the advertising undertaking and the request for advertisement material by another department of the defendants and the conversation between the plaintiffs’ advertising agent, Castle, and a representative of the defendants, Seeny, years before 1962, accepted most favourably for the plaintiffs, do not in my view amount to any evidence of malice. The advertising was a separate department and it is no evidence of malice that one department did not know what the other was doing. It might be said to show inconsistency within the company but a company’s mind is not to be assessed on the totality of knowledge of its servants. Even if the editorial department had known of the advertising arrangements it does not seem to me that it indicates malice. If Seeny had sought to interpret the words in the [* 814] advertisement in “The People” of February 3, 1957, “Guaranteed Catalogue value 25s. 6d. all yours for 1s. to introduce our Bargain Approvals” and had thought it indicated that stamps on approval would be sent without specific request and had even been told that that was the plaintiffs’ intention it does not in my opinion show in any way malice if another person took another view of that or of the advertisement in the present case that “to introduce our Bargain Approvals” was far from clear and that it would not necessarily convey to a young person’s mind that a set of more expensive stamps would be sent with the 1s. order. The plaintiffs had in fact at least one other form of advertisement which was clear and unambiguous and specifically provided for a request for “approvals.”

The failure to apologise or retract and persistence in a plea of justification are in themselves not evidence of malice. They may be in certain circumstances but more frequently they would show sincerity and belief in what had been said and establish the best reason for the publication. The defendants failed to prove justification but they succeeded in fair comment and in that circumstance their failure to apologise or retract provides little indication of malice.

The allegation in paragraph 4 (10) of the reply was answered by the verdict of fair comment and (11) fails because there was no evidence of a reckless indifference to the rights and interests of the plaintiffs in order to boost circulation.

I now come to consider the matters on which the greater reliance was placed: namely that the defendants did not honestly believe what they wrote to be true and that they had a deliberate intention of injuring the plaintiffs in their business.

These arguments were mainly based on comparisons between four documents, (1) the article or report dated November 21, 1962, which Ive sent in after he had seen the plaintiff, Santo, at the plaintiff company’s works, incorporating as it did information contained in (2), the statement from the Manchester office of “The People” reporting the representative’s interview with Mr. and Mrs. Wragg, (3) the draft of Leggatt, the sub-editor of “The People,” and (4), the article as it appeared in the publication complained of.

Each edition was somewhat different from any other. There were amendments, additions and omissions. In successive hands the material was improved or written up to make it, according to the writer at the time, more attractive for publication. That in itself would only be good editing in the sense that the editorial department aim to give readable material. On the face of it that process would be no evidence of malice. It is a normal newspaper function. If vital matters were left out or matters were inserted in the final article which made it unfair then that might leave an element of malice for the jury’s consideration. But the jury have found that the comment was fair. The newspaper was entitled to express its opinion without setting out all the facts so that the [* 815] reader could form his own opinion, provided it was done fairly. It does not appear to me to be any evidence of malice for the writer to hold and to express or imply the views that the words “Regular 5s. 9d. value for 1s. to introduce our Bargain Approvals” were not clear to the mind of young people; that the offer was a sprat to catch a mackerel; and that Stephen Wragg as rightly surprised when his 1s. produced a booklet of approvals, and to do so without setting out the words of the advertisement so that the reader could judge for himself.

The most sustained and elaborate argument for the plaintiffs sought to establish that the defendants did not honestly believe what they wrote. Leading counsel developed the argument from the somewhat unfortunate words in paragraph 6 of the defence which set up justification and in particular sub-paragraph (viii) which alleged that the plaintiffs were well aware that Stephen Wragg was a very young boy, that he had not requested the additional collection to be sent to him and that he had no reason to think when he replied to the advertisement that any item would be sent to him other than the 1s. worth of stamps and that the plaintiffs also were well aware they had no legal right to require Stephen Wragg to return the additional collection.

This gave leading counsel scope for great play but the words and allegations were those of the pleader long after the article had been written and based apparently on his interpretation of what the article said or implied. Junior counsel, who followed in the absence of his leader, sought to derive no honest belief from the article itself. He grouped together various sentences but whether they are regarded in that way or whether the article is read, as would seem to me more reasonable, as a whole it is difficult to see that it shows on the part of the editorial staff of “The People” responsible for this article a lack of honest belief or evidence of malice. The article states what was done and does not direct attention to the plaintiffs’ knowledge of their shortcomings. Malice is not established by forensic imagination however eloquently and subtly expressed.

The facts tend to show that the defendants were producing an article for their paper in a routine way, desiring to express opinions forcibly and not drably. A newspaper would too readily be deprived of the privilege of fair comment if the editing of news by omissions and additions were of itself to be held more consistent with malice than with its absence. To interest the public and to attempt to right a relatively slight grievance is no evidence of an intention to injure. If the plaintiffs had responded, as well they might have done, to the criticism of the article by making future advertisements clearer and by abandoning their practice of sending a solicitor’s letter to young persons they would have been commended for taking the hint or advice offered and “injury” seems an excessive word for any harm that had been done.

I have dealt at length with the appellants’ submission that [* 816] there was no evidence of malice to go to the jury and on an analysis of the matters relied on I have been strongly inclined to that view. At the trial the jury may have been oppressed with submissions of malice which the facts and circumstances did not justify.

On the other hand the defendants did not call any relevant witness to explain the progressive alteration of the article in its preparation or give any evidence why matters favourable to the plaintiffs were omitted. It is often hard, even for a judge sitting alone, to know what inference to draw from a failure of a material witness to give evidence. There is perhaps here room for a jury to draw adverse inferences and, if so, that circumstance provides more than a scintilla of evidence for the jury’s consideration on this issue. It was further submitted that the jury had not been sufficiently directed on the issue of malice. In the ordinary way I would regard the judge’s summing-up and direction as fully satisfactory and adequate. He stated what malice involved and he put broadly the respective contentions of the parties. But the summing-up makes no reference to paragraph 6 (viii) of the defence in its contents and if malice is to be established on the basis of the meticulous argument advanced by Mr. Ackner before us on that paragraph or on Mr. Hirst’s analysis of the article then I think it was necessary to have had a careful direction on the evidence and how far any proved facts were capable of constituting malice.

The appellants wished to keep open the question whether malice is an answer to fair comment. It has long been decided that it is: Thomas v. Bradbury Agnew & Co. Ltd.,2 but the question does not seem to have reached the House of Lords. As the matter was not argued before us and could not have been I refrain from any expression of opinion.

The question on fair comment was I think put in an unusual form but not, we are told, entirely without precedent. It is more common, and in my view preferable, to ask simply, on proper direction whether the opinions expressed were fair comment but the jury’s answer here protects the defendants if malice is not established.

By a cross-notice the plaintiffs submitted that the defence of fair comment was not open as the article contained many statements of fact which were not expressions of opinion and that it was implicit in the jury’s answer to question 2 that the advertisement was not misleading or ambiguous, that the plaintiffs believed it was clear and unambiguous and that the plaintiffs sincerely believed that they were entitled to require the children to return the stamps and that therefore it was not open to the jury to find fair comment as it was based on facts which had not been justified.

Questions 1 and 2 are as follows: 1. Is the article defamatory of the plaintiffs? - Answer: Yes. 2. If yes, have the defendants

2 [1906] 2 K.B. 627; 22 T.L.R. 656, C.A.

[* 817] proved that its sting, that is to say its defamatory implication, is substantially true? Answer: No.

The sting or implication was that pleaded, namely that the plaintiffs’ conduct was discreditable and improper but that did not involve, when answered in favour of the plaintiffs that it was not, that the jury necessarily took the view, or that it was implicit in their finding, that the advertisement was not misleading or that the plaintiffs believed it to be clear and unambiguous or that they believed they were entitled to require children to return the stamps. Ambiguity and request for the return of one’s own property is not necessarily discreditable but it gives scope for criticism in circumstances such as arose here and it may be fair comment to express the view that it was.

The summing-up drew the jury’s attention to the distinction between justification and fair comment. It contained this passage:

“That is how it comes about that the Press, you may think, from time to time performs a useful function in calling attention to trading practices which can properly, fairly and honestly be criticised. It might be said, for example, that the public get a service from traders which the Press does not criticise, and the difficulties that we sometimes have with traders may be due to the fact that they do not get enough criticism. Therefore, the law has for a long time taken the view that honest, fair criticism is something that people cannot complain about.”

The judge then emphasised that it was essential that the facts upon which the criticisms were based should be fairly presented. “And, needless to say if the facts are untrue, then the criticism based upon those facts cannot in its very nature be fair, can it?”

The jury by its answer to question 3 clearly recognised that there were facts and comments in the article and by their answer to question 4 must have been satisfied that the article was substantially true in its statement of facts and the facts so proved justified the comments made on them. The judge had put very forcibly the contention of Mr. Ackner for the plaintiffs to the contrary and had pictured an imaginary scene in the editor’s office “dealing with the most degrading medium of trading” which was no understatement of any possible version of the plaintiffs’ conduct. The comments, as well as the facts and the inferences from both fact and comment, in defamatory statements have to be proved to be true for the defence of justification to succeed but if the facts are established and the comment is fair the defence of fair comment can succeed. An honest and fair expression of opinion on a matter of public interest is not actionable even though it be untrue and fail of justification. It may be said in the appropriate circumstances that a man’s conduct is discreditable and it may be a fair comment to make although a jury is not prepared [* 818] to find that the substance of the comment was true. That seems to be the position here.

Reference was made in the argument to the Defamation Act, 1952, section 6. There are kindred provisions in the Defamation Act, 1954, of New Zealand and Truth (NZ) Ltd. v. Avery3 was cited in argument. I do not find it necessary to deal further with this aspect of the argument but I would express my agreement with the clear analysis of the effect of the Defamation Act in the judgment in that case of North J. (now the President of the New Zealand Appeal Court).

I now turn to the damages. At the outset of the appeal before us counsel for the plaintiffs referred to a letter of October 22, 1964, in which the plaintiff company’s solicitor accepted the defendants’ contention in their notice of appeal that the judge failed to give sufficient and proper direction to the jury as to the effect of the company’s liability to income tax and profits tax. The letter offered be reduce the damages, by consent, to £2,500, half the amount awarded. This offer was refused by the defendants and on that ground alone there would have had to be a new trial of the company’s damages.

The defendants have submitted that both the damages of £5,000 to the company and £10,000 to Santo were unreasonable and excessive to such an extent that they were erroneous in law and should not stand.

If Santo had lost a leg, a great deprivation which nothing could restore, it is unlikely that he would have received more than about half of the sum awarded by the jury for the injury to his reputation. The article complained of appeared in one publication which would have become refuse within a day or two of its receipt by a reader. Although the publication of the paper is large it is improbable that many people read the whole of a paper; the majority I apprehend fall far short of that and restrict themselves to the topics which interest them, week by week. Relatively few of them would be interested in stamp-collecting and of those how many, one could ask, would know of the plaintiffs or either of them and if they did what great ill would they think of them? Giving the best consideration I can to the matter I find the damages extravagantly out of proportion to any possible injury to the plaintiffs. The article alleges no outrageous conduct. A likely reflection of an intelligent reader would be: “Those people ought to change their methods with children and it’s time they did so.” How can an income of £400 to £500 a year for life be justified by any harm done to Santo, for such he could obtain with £10,000 and retain the lump sum intact.

Even as a punishment for venturing to criticise the plaintiffs the sums are out of all harmony with fines inflicted in Criminal Courts for offences, in so far as comparisons can be made, far more grievous than a criticism of a method of trading (disregarding

3 [1959] N.Z.L.R. 274.

[* 819] the finding of fair comment). Notwithstanding the reluctance of an appellate court to interfere with a jury’s verdict I feel impelled to the view that the damages to both the plaintiffs are so erroneous as to require a new trial. The plaintiff company’s business as a whole had prospered since the publication of the article and no pecuniary loss from the article was established or made to appear probable.

There was additionally in my view a misdirection. It appears to me that the words of the judge “It has been said for a long time that there is a punitive aspect in damages” and some of the directions following that statement would have led the jury to regard themselves as free to punish the defendants for their wrongdoing. In Rookes v. Barnard4 Lord Devlin5 dealt with damages in a manner which met with the unqualified approval of the other members of the House of Lords who heard that appeal and the decision was applied in this court in McCarey v. Associated Newspapers Ltd. (No. 2).6 It is now established that compensation is the normal basis for damages for defamation and that punitive or exemplary damages should only be awarded in the case of a defendant who profited from his own wrongdoing in publishing the defamation.

If this was not a case for punitive damages there was a misdirection. As our decision will direct a new trial I do not feel justified in prolonging this judgment by reviewing the principles of Lord Devlin’s speech7 especially as it has recently been considered by this court in McCarey’s case.8

It may not always be easy to apply the exception for punitive damages on the basis that a defendant has profited by his own wrongdoing. It was submitted to us that the exception applied here. I will content myself for the present by saying that if Lord Devlin had intended newspapers in publishing items of news as here to fall within a punitive penalty and not merely a compensating liability I would have expected it to be expressly so stated. Newspapers would never be immune from the risk of penalty if that is the right interpretation. They, in the ordinary course of their business, publish news for profit. It would seem that a more direct pecuniary benefit would have to be shown to make a newspaper or any other defendant liable for punitive damages.

Compensatory damages in the case of libel include many different heads of compensation as Pearson L.J. pointed out in McCarey’s case.9 Even some of those would hardly apply here but that is for the trial judge to assess and direct in the light of such evidence as a new trial may produce.

4 [1964] A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367, H.L.(E.).

5 [1964] A.C. 1129.

6 [1965] 2 W.L.R. 45; [1964] 3 All E.R. 947, C.A.

7 [1964] A.C. 1129.

8 [1965] 2 W.L.R. 45.

9 Ibid. 60.

[* 820] I would allow the appeal and would set aside the judgment and order a new trial on the issues of fair comment and damages.

DAVIES L.J. When substantially all of the evidence had been read to this court and after counsel on each side had examined the summing-up in great detail and presented their careful and sustained arguments, it was difficult to resist the feeling that the result of the trial was wrong and unjust. It appeared not merely that the amount of damages awarded to the plaintiffs was wholly disproportionate to any conceivable loss suffered by them but also that on the whole of the case it was wrong that the defendants should be mulcted in damages at all. But, of course, this court has no right to usurp the function of the jury. And if, on a proper direction and on the evidence, the jury were entitled to come to the conclusion which they did, we cannot interfere. It is, therefore, necessary to examine separately the various issues which now arise for decision, in order to see whether the jury’s verdict on each of them was one at which they could properly arrive.

Perhaps it is more convenient to look first at the question of damages, since that is probably the simplest matter; though logically, no doubt, the question of damages would fall to be decided last.

The plaintiff company were awarded £5,000 and Santo £10,000. I entirely agree with the observations of my Lord as to those amounts, considered merely as amounts and without reference to any possible criticisms of the summing-up. Those amounts are, in the words of Lord Wright in Davies v. Powell Duffryn Associated Collieries Ltd. (No. 2),10 “out of all proportion to the circumstances of the case.” It is true that damages in cases of defamation are even more at large than in certain other classes of case, for example personal injuries, and that this court more rarely interferes with awards of such damages: see per Scrutton L.J. in Yousopoff v. Metro Goldwyn-Mayer Pictures Ltd.11 But the figures in the present case are wholly excessive and out of all proportion to any damage which the plaintiffs can have suffered. No loss of profit or special damage was alleged in the statement of claim by either plaintiff. There was evidence that two customers had withdrawn their custom in consequence of the publication of the alleged libel. On the other hand, Santo admitted that the company’s taxable profits for 1962-63 had multiplied 13 times by 1964-65. This, however, he attributed to a large increase in foreign business, particularly in Germany and the United States of America. He said that the English business had decreased, though he did not say by how much. The defendants’ newspaper has, of course, an enormous circulation, and the effect of a libel published in it is impossible to estimate. But on the evidence before the jury these awards

10 [1942] A.C. 601, 616; 58 T.L.R. 240; [1942] 1 All E.R. 657, H.L.(E.).

11 (1934) 50 T.L.R. 581, 585, C.A.

[* 821] were, in my judgment, hopelessly unreasonable and impossible to sustain.

Apart, however, from the obvious excess of the amounts awarded, there was, as my Lord has pointed out, a misdirection as to damages. So far as concerns the damages awarded to the company, the plaintiffs admit that there was a misdirection in that the judge failed properly to apply the principles enunciated by Lord Reid in Lewis v. Daily Telegraph12 as to the impact of income tax and profits tax on the profits of a limited company. Those taxes in the present case would admittedly have amounted to some 10s. in the £.

I agree also that the judge fell into error in permitting the jury to award, if they thought fit, punitive damages. In his summing-up he said:

“If you thought that the defendants’ conduct in writing what they did and in the way they have conducted this case is outrageous, of course that adds to the damage to the reputation of the plaintiffs, and it follows that outrageous conduct by the defendants in writing the libel and in persisting in their allegation when it comes to trial would be a factor to be taken into consideration.

“It has been said for a long time that there is a punitive aspect in damages. It is right that I should remind you that moralists usually take the view that even just punishment should be reasonable and if not reasonable it defeats its own ends. This is a criticism, and it is right that people should be able to criticise: it is only if their conduct is really outrageous that you may think, after consideration, that perhaps the matter of whether or not the punitive aspect comes into it for consideration at all. It is all a matter for you.”

And later:

“On the other hand, Mr. Ackner asks you to take the view that this is really an outrageous attack upon a perfectly decent firm carrying on a large and reputable business, and an outrageous attack upon its managing director who has been engaged in trade for 25 years and in respect of whom apparently the advertising world has never made any complaints. You would be entitled to reflect your view in a large sum of damages.”

In my opinion, these observations to the jury are not in accordance with the law as laid down in Rookes v. Barnard13 and McCarey v. Associated Newspapers Ltd. (No. 2).14 As I understand the observations of Lord Devlin and Pearson L.J. in those two cases, a publication in a newspaper of an article such as that at present under consideration cannot fall within either of the two categories in which punitive damages are permissible. Everything which is published in a newspaper is written, printed and published, like everything published in a book, with a view to selling the paper and so making a profit. But there can be no question here of the defendants seeking to make a specific profit

12 [1964] A.C. 234, 261-2; [1963] 2 W.L.R. 1063; [1963] 2 All E.R. 151, H.L.(E.).

13 [1964] A.C. 1129, 1220 et seq.

14 [1965] 2 W.L.R. 45, 60, 61.

[* 822] out of the publication of this particular article. And the reiteration by the judge of the word “outrageous” was, in my view, somewhat dangerous and misleading. If the libel outraged the plaintiffs, that would be a proper matter for consideration in awarding compensatory damages. But if the libel outraged the jury - a question which the judge clearly invited them to consider – that would not be a proper matter for them to take into account; for to give effect to that would be not to compensate but to punish.

In any event, therefore, it would be necessary to order a new trial on the issue of damages.

The next matter for consideration, in order of convenience, would seem to be the plaintiffs’ cross-appeal. They complain (i) that the judge was wrong in leaving to the jury as separate questions questions 4 and 5; (ii) that on the evidence it was plain that (a) the facts stated in the article were not truly stated and (b) relevant facts were omitted; and (iii) that the answer to question 4 was inconsistent with the answer to question 2, viz., that the defendants had not proved that the defamatory words were true.

On the first point, I agree that it is much more usual, and I should have thought preferable, for a judge when dealing with a defence of fair comment to leave to the jury, after instructing them as to the essentials of that defence, as the judge fully and clearly did in the present case, the simple question: Was this in the circumstances a fair comment? Mr. Molony would not, of course, agree with this, since he wishes to keep open the point, which in view of Thomas v. Bradbury, Agnew & Co. Ltd.15 and other authorities he admits is not open to him in this court, that a defence of fair comment is not defeasible by express malice. All I would say about that tentative submission by Mr. Molony is that it is a very remarkable one.

But it does not seem that the course which the judge took was wrong in law or worked any injustice to the plaintiffs. In effect he asked the jury whether the facts were truly and sufficiently stated and whether the comments made on those facts were theoretically fair and then went on in the next question to ask whether these particular defendants made the comments fairly or maliciously. I am unable to see that the plaintiffs have any legitimate ground of complaint here.

The plaintiffs’ second point as to the alleged inadequacy of the statement of the facts in the article and as to the alleged omissions in it must be taken to have been negatived by the answer to question 4. And in my view there was abundant evidence on which the jury could properly conclude that the substance of the facts was fully and adequately set out in the article.

The plaintiffs’ third point on their cross-appeal is based, as I think, on a misappreciation or misapplication of the effect of the

15 [1906] 2 K.B. 627.

[* 823] answer to question 2, the rejection of the defence of justification. The answer to that question means that the jury found that the defendants had not proved that the plaintiffs were, to use the words of paragraph 5 of the statement of claim, “guilty of discreditable and improper business conduct in their dealings with children.” But this finding is, to my mind, not in the least inconsistent with a finding that a fair-minded person having the relevant facts before him might well take the view that the plaintiffs’ methods were undesirable and open to strong criticism. Mr. Santo thought that his advertisement was clear, even to young children. He took the view that there was nothing wrong in sending in the last resort even to a young child a solicitor’s letter demanding the return of the stamps. Other people might well take a different view. Stephen Wragg did not expect to be sent approval stamps. Neither, apparently, did his mother so read the advertisement; and she was obviously extremely critical of the solicitor’s letter. And there seems to be no possible justification for the contention that the finding that the defamatory meaning ascribed by the plaintiffs to the article was not in fact justified was inconsistent with the view that the criticism voiced by the defendants could fairly be made.

There remains what I consider to be the most difficult question in the case. Was there any evidence of malice fit to be left to the jury and, if so, was the direction to the jury on this question adequate?

Mr. Ackner’s main contention on this part of the case was based on the comparison between the report of Ive as to his interview with Santo, incorporating the information received from the defendants’ Manchester agent, the draft article composed by the deputy editor and the final copy together with the headlines composed by the deputy features editor. The suggestion is that, in the process of editing, a number of facts favourable to the plaintiffs were omitted and the general tenor of the article became increasingly critical. This, it is argued, was done not for the purpose of making a fair comment but in order to heighten the tone of the article and its disparagement of the plaintiffs so as to titillate the appetite of the readers of the “People” for sensational matters. Moreover it was pointed out that neither the deputy editor nor the deputy features editor was called as a witness to account for or explain the alterations. To this was added the point that the defendants, in paragraph 6 (viii) of their defence, went so far as to allege, as part of their particulars of justification, inter alia, that the plaintiffs knew that Stephen Wragg had not asked for the approvals to be sent to him and had no reason to think that they would be sent and that the plaintiffs knew that they had no right to require Stephen Wragg to return the stamps or pay the price.

This last matter has, of course, as my Lord has pointed out, no direct connection with the publication of the article or with the state of mind at the time of those responsible for its [* 824] publication. But it seems to me that it would not be right, whatever its weight, to exclude it from the consideration of the jury on the issue of malice. To what extent reliance was placed upon it at the trial it is not easy to know, since it finds no place in the summing-up.

Returning to the coming into being of the article as published, I find myself unable to say that there was here no evidence fit for the consideration of the jury, no evidence, that is to say, on which it was possible for a reasonable jury to make a finding adverse to the defendants, though in saying that I am of course not for one moment suggesting that the jury ought to have made such a finding. There was, as I think, evidence upon which the jury could take the view that certain matters were deliberately omitted and the picture deliberately heightened in order to present a more exciting and scandalous story, more especially as those persons directly responsible were not called. I agree, however, that it is not altogether easy to reconcile such a finding with a finding of what I have called theoretical fair comment.

But so many other matters were allowed to go to the jury as evidence of malice that it is, in my judgment, impossible to allow this verdict to stand. And in this connection it is important to remember that the jury had before them copies of the pleadings which, of course, included paragraph 3 of the reply with its long catalogue of alleged malice on the part of the defendants. The judge suggested to the jury that some of the matters introduced into the case were very much fringe matters. But, in my view, some of the matters relied upon as showing malice were well beyond the fringe. And it may be convenient to deal with some of these, as contained in paragraph 3 of the reply. Sub-paragraph (1) alleges that the defendants did not honestly believe what they wrote, and sub-paragraph (2) alleges that the defendants acted with the deliberate intention of injuring the plaintiffs. Save as is to be inferred from the matters with which I have already dealt, which are-covered by sub-paragraphs (4), (5), (6), (7), (12), (13) and (14), there was no evidence to support these allegations.

So far as concerns sub-paragraph (3) and the alleged inconsistency between the attitude towards the plaintiffs of the defendants’ editorial department and their advertising department, I agree, for the reasons stated by my Lord, that there was nothing here that could amount to evidence of malice. Yet this was expressly left to the jury by the judge as a possible example of the defendants’ “humbugging attitude.”

Sub-paragraph (8) relies on the defendants’ refusal to publish an apology as evidence of malice. But, quite apart from any authority, it is difficult to see how this could be so in the circumstances of the case. The jury have in effect found that the comment would have been fair if made by a non-malicious person. How then could a failure to apologise make the comment unfair or render its publication malicious? [* 825]

Sub-paragraph (9) relies upon the plea of justification, which, of course, failed. It may be that in some cases an unsuccessful plea of justification may be evidence of malice (Simpson v. Robinson16. But in many cases, as in the present, so to hold would be to deprive a defendant of the right to raise a twofold defence of justification and fair comment, since to fail on justification would destroy his defence of fair comment; indeed, to plead justification may point more to honesty than to malice (see Hayford v. Forrester-Paton17. This allegation, therefore, should not have gone to the jury. Sub-paragraph (10), dealing with the offensive terms of the article and the headlines, must be taken to have been rejected by the jury in view of their finding of fair comment. The allegation in sub-paragraph (11) that the defendants published with reckless indifference to the rights and interests of the plaintiffs in order to boost circulation is the merest hyperbole of counsel, unsupported by evidence.

The allegation in paragraph (15), viz., that the defendants omitted the fact that the Wraggs dealt in stamps, is, in my opinion, entirely irrelevant to the issue.

It will be seen, therefore, that a number of the matters which the jury were permitted to consider as evidence of malice did not amount to such evidence. The verdict therefore cannot stand, and, in my opinion, there must be a new trial on the issues of fair comment and damages.

RUSSELL L.J. To the comparative newcomer, the law of libel seems to have characteristics of such complication and subtlety that I wonder whether a jury on retiring can readily distinguish their heads from their heels. Having made that comment (I hope without malice) I will content myself with saying that I agree with my brethren that a new trial must be ordered on those aspects of the case mentioned by them.

Appeal allowed with costs.

New trial ordered.

Costs of first trial reserved to judge of second trial. Sums of damages already paid by defendants to plaintiffs to be repaid within one week.

Applications for leave to appeal to House of Lords refused.

16 (1848) 12 Q.B. 511.

17 1927 S.C. 740.