[IN THE COURT OF APPEAL.]

MACHADO v. FONTES.

Jurisdiction - Procedure - Alleged Libel - Publication in a Foreign Country - Action for Damages - Pleading.

An action will lie in this country in respect of an act committed outside the jurisdiction if the act is wrongful both in this country and in the country where it was committed; but it is not necessary that the act should be the subject of civil proceedings in the foreign country.

The rule enunciated in Phillips v. Eyre, (1870) L. R. 6 Q. B. 1, and The M. Moxham, (1876) 1 P. D. 107, applied.

APPEAL from Kennedy J. at chambers.

The plaintiff brought this action to recover damages from the defendant for an alleged libel upon the plaintiff contained in a pamphlet in the Portuguese language alleged to have been published by the plaintiff in Brazil.

The defendant delivered a statement of defence (in which, amongst other defences, he denied the alleged libel), and he afterwards took out a summons for leave to amend his defence by adding the following plea: "Further the defendant will contend that if (contrary to the defendant's contention) the said pamphlet has been published in Brazil, by the Brazilian law the publication of the said pamphlet in Brazil cannot be the ground of legal proceedings against the defendant in Brazil in which damages can be recovered, or (alternatively) cannot be the ground of legal proceedings against the defendant in Brazil in which the plaintiff can recover general damages for any injury to his credit, character, or feelings."

The summons came before Kennedy J. in chambers, who allowed the plea to be added, but expressed some doubt as to the propriety of so doing, and gave leave to plaintiff to bring the present appeal.

Montague Lush, for the plaintiff, in support of the appeal. Although it may be that libel cannot in Brazil be made the subject of civil proceedings in which the plaintiff could recover

damages, it is not an innocent act there, and can be made the subject of criminal proceedings. The plea is therefore bad, and should be struck out; for the authorities shew that an action will lie in this country in respect of an act committed abroad if such act is actionable in this country, and not "justifiable" where committed: Scott v. Lord Seymour (1); Phillips v. Eyre (2); The M. Moxham (3); The Halley. (4)

Joseph Walton, Q.C., and A. J. Ashton, for the defendant. The plea amounts to this: that the publication of the alleged libel could not be made the subject of an action for damages in Brazil, and the defendant contends that if not actionable there it is not actionable here; and it is no answer to say that if there has been a libel there the State might cause criminal proceedings to be instituted in respect of it. The question as to whether the alleged tort is or is not actionable in Brazil is one of Brazilian law, and the proper course would be to send out a commission to thAt country for the purpose of inquiring into and ascertaining what the law on the subject is, instead of deciding the question on the materiAls now before the Court; and if it turns out that the plaintiff individually cannot by any civil proceedings in Brazil make the defendant liable in respect of this alleged libel, no action will lie here, and the plea will be good. There is nothing in the cases cited at variance with this.

[They referred to 1 Smith's Leading Cases, 10th ed. p. 605; notes to Mostyn v. Fabrigas. (5)]

Montague Lush, in reply.

LOPES L.J. I am of opinion that this appeal ought to be allowed. [The Lord Justice then referred to the facts, and, after reading the plea, continued:-]

Now that plea, as it stands, appears to me merely to go to the remedy. It says, in effect, that in this case no action in which damages could be recovered would lie in Brazil, and, assuming that any damages could be recovered in Brazil, they would be special damages only. Mr. Walton contends that

(1) (1862) 1 H. & C. 219.

(2) L. R. 6 Q. B. 1, 28.

(3) 1 P. D. 107.

(4) (1868) L. R. 2 P. C. 193.

(5) (1774) 1 Cowp. 161.

that is not the meaning of the plea: that the plea is intended to raise a larger question than that, and to say that libel cannot be made the subject of any civil proceedings at all in Brazil, but is only the subject-matter of criminal proceedings; and, for the purposes of what I am about to say, I will assume that to be so.

Now the principle applicable in the present case appears to me to be this: where the words have been published outside the jurisdiction, then, in order to maintain an action here on the ground of a tort committed outside the jurisdiction, the act complained of must be wrongful - I use the word "wrongful" deliberately - both by the law of this country, and also by the law of the country where it was committed; and the first thing we have to consider is whether those conditions are complied with.

In the case of Phillips v. Eyre (1) Willes J. lays down very distinctly what the requisites are in order to found such an action. He says this (2): "As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled: First, the wrong must be of such a character that it would have been actionable if committed in England .... Secondly, the act must not have been justifiable by the law of the place where it was done." Then in The M. Moxham (3) James L.J., in the course of his judgment, uses these words (4): "It is settled that if by the law of the foreign country the act is lawful or is excusable, or even if it has been legitimized by a subsequent act of the Legislature, then this Court will take into consideration that state of the law - that is to say, if by the law of the foreign country a particular person is justified, or is excused, or has been justified or excused for the thing done, he will not be answerable here."

Both those cases seem to me to go this length: that, in order to constitute a good defence to an action brought in this country in respect of an act done in a foreign country, the act relied on must be one which is innocent in the country where it was committed. In the present case there can be no doubt that

(1) L. R. 6 Q. B. 1.

(2) L. R. 6 Q. B. 1, at p. 28.

(3) 1 P. D. 107.

(4) 1 P. D. 107, at p. 111.

the action lies, for it complies with both of the requirements which are laid down by Willes J. The act was committed abroad, and was actionable here, and not justifiable by the law of the place where it was committed. Both those conditions are complied with; and, therefore, the publication in Brazil is actionable here.

It then follows, directly the right of action is established in this country, that the ordinary incidents of that action and the appropriate remedies ensue.

Therefore, in this case, in my opinion, damages would flow from the wrong committed just as they would in any action brought in respect of a libel published in this country.

It is contended that it would be much better that this question should not be decided at the present time, but that a commission should go to Brazil, and that the Brazilian law should be inquired into. If our view is correct, it seems to me that that would be a great waste of time and money, because, having regard to the authorities I have mentioned, this plea is absolutely bad, and ought to be struck out.

RIGBY L.J. I am of the same opinion. I do not propose to decide this case on any technical consideration as to what may be the precise meaning of the allegation that is proposed to be introduced into the defence; I give it the widest possible construction it can reasonably bear; and I will assume it to involve that no action for damages, or even no civil action at all, can be maintained in Brazil in respect of a libel published there. But it does not follow from that that the libel is not actionable in this country under the present conditions, and having regard to the fact that the plaintiff and defendant are here.

Willes J., in Phillips v. Eyre (1), was laying down a rule which he expressed without the slightest modification, and without the slightest doubt as to its correctness; and when you consider the care with which the learned judge prepared the propositions that he was about to enunciate, I cannot doubt that the change from "actionable" in the first branch of the rule to "justifiable" in the second branch of it was deliberate.

(1) L. R. 6 Q. B. 1.

The first requisite is that the wrong must be of such a character that it would be actionable in England. It was long ago settled that an action will lie by a plaintiff here against a defendant here, upon a transaction in a place outside this country. But though such action may be brought here, it does not follow that it will succeed here, for, when it is committed in a foreign country, it may turn out to be a perfectly innocent act according to the law of that country; and if the act is shewn by the law of that country to be an innocent act, we pay such respect the law of other countries that we will not allow an action to be brought upon it here. The innocency of the act in the foreign country is an answer to the action. That is what is meant when it is said that the act must be "justifiable" by the law of the place where it was done.

It is not really a matter of any importance what the nature of the remedy for a wrong in a foreign country may be.

The remedy must be according to the law of the country which entertains the action. Of course, the plea means that no action can be brought in this country in respect of the libel (if any) in Brazil. But I think the rule is clear. It was very carefully laid down by Willes J. in Phillips v. Eyre (1); and in the case of The M. Moxham (2) all the learned judges of the Court of Appeal in their judgments laid down the law without hesitation and in a uniform manner; and first one judge and then another gave, in different language but exactly to the same purport and effect, the rule enunciated by Willes J. So that if authority were wanting there is a decision clearly binding upon us, although I think the principle is sufficient to decide the case.

I think there is no doubt at all that an action for a libel published abroad is maintainable here, unless it can be shewn to be justified or excused in the country where it was published. James L.J. states in The M. Moxham (2) what the settled law is. Mellish L.J. is quite as clear upon that point as James L.J. in laying down the general rule; and Baggallay L.J. also takes the same view. We start, then, from this: that the act in question is primâ facie actionable here, and the only thing we have to do is to see whether there is any peremptory bar to

(1) L. R. 6 Q. B. 1.

(2) 1 P. D. 107.

our jurisdiction arising from the fact that the act we are dealing with is authorized, or innocent or excusable, in the country where it was committed. If we cannot see that, we must act according to our own rules in the damages (if any) which we may choose to give. Here we cannot see it, and this. appeal must be allowed with costs.

Solicitors: Grant, Bulcraig & Co., for Parker, Eyre & Moorhouse, Manchester; Chester & Co., for Crofton, Craven & Worthington, Manchester.

W. W. K.