HOUSE OF LORDS CASSELL & CO. LTD.,
APPELLANTS AND BROOME AND ANOTHER, RESPONDENTS For official version see: [1972] A.C. 1027 (David Irving libel case) On appeal from BROOME v. CASSELL
& Co. LTD. COUNSEL:
Roger Parker Q.C.
and Robert Alexander for the appellants. David
Hirst Q.C., Andrew Bateson Q.C. and M. G. Tugendhat for the respondent. SOLICITORS: Herbert Smith & Co.; Theodore
Goddard & Co. DATES: 1971 Nov. 29, 30; Dec. 1,
2, 6, 7, 8, 9, 13, 14, 15, 16, 20; 1972 Feb.
23 JUDGES:
Lord Hailsham of
St. Marylebone L.C., Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne,
Lord Wilberforce, Lord Diplock and Lord Kilbrandon. Appeal
from the Court of Appeal (Lord Denning M.R., Salmon and Phillimore L.JJ.). February
23, 1972. LORD
HAILSHAM OF ST. MARYLEBONE L.C. My Lords, Nature of
the proceedings This
appeal arises out of two consolidated actions for libel on the publication of a
book. The first action was in respect of the 60 proof copies of the book, the
second in respect of the principal or hard back edition of the book. We were
told that there are separate proceedings still pending in respect of a paper
back edition, published under licence by [*1051]
separate publishers. This paper back edition was mentioned at all stages in the
proceedings as being potentially relevant to the question of damages. The House
is not otherwise concerned with it. The
plaintiff in the action (the first respondent to this appeal) is a retired
captain in the Royal Navy of unblemished reputation, who at the time of the
matters referred to in the book, held the rank of Commander, and occupied the
responsible position of officer commanding the escorts in the ill-fated convoy
PQ17. He held active command throughout the war, and ended his wartime naval
career with his present rank of captain in command of the battleship Ramillies.
The subject matter of the book, and its title, was The Destruction of
Convoy PQ17 which, as is well known, was one of the great naval
disasters of the war, in which all but 11 out of over 35 merchant vessels were
sunk on their way to the Soviet Union and about 153 merchant seamen killed by
enemy action and a vast quantity of war material lost. The
defendants in the action were respectively the author of the book, David Irving,
who is the second respondent in the appeal, and was not represented before us,
and the publishers of the book, Cassell & Co. Ltd., who are the appellants. The
result of the trial The trial
of the action took, we were told, 17 days before Lawton J. and a jury. In the
result, on February 17, 1970, the jury found a verdict for the plaintiff and
awarded against both defendants (1) the sum of £1,000 in respect of
publication of the proof copies of the book, counsel for the plaintiff having
waived any claim to exemplary damages on the proof copies, (2)
£14,000 described as compensatory damages in
respect of the hard back edition, and, (3) in respect of the hard back edition
a further sum of £25,000, described as by way of exemplary
damages. Judgment was entered for the sum of £40,000
against both defendants. The present appeal relates solely to the above sum
awarded by way of exemplary damages of £25,000. So far as
relevant to this appeal, the entire proceedings before Lawton J. were conducted
by all the counsel concerned and summed up by the judge to the jury on the
basis of the remarks of Lord Devlin on pp. 1220-1233 of the report of Rookes
v. Barnard [1964]
A.C. 1129, and of the direction following Lord Devlins remarks by
Widgery J. in Manson v. Associated Newspapers Ltd. [1965] 1 W.L.R. 1038. This was
not surprising since all the other members of the House of Lords had expressly
concurred in Lord Devlins opinion on this point, though without
adding reasons of their own, and the opinion in Rookes v. Barnard, which was strictly an
intimidation case, though obviously intended to apply generally, had been
expressly applied to defamation proceedings by the Court of Appeal in McCarey
v. Associated Newspapers Ltd. (No. 2) [1965] 2 Q.B. 86; by Pearson, Willmer and
Diplock L.JJ.; in Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805, by Sellers,
Davies and Russell L.JJ.; in Fielding v. Variety Incorporated [1967] 2 Q.B. 841, by Lord
Denning M.R. and Harman and Salmon L.JJ.; and in Mafo v. Adams [1970] 1 Q.B. 548, a case of
deceit and other causes of action, the principles enunciated in [*1052] Rookes v. Barnard were accepted as applicable where
the evidence justified it by Sachs and Widgery L.JJ. and Plowman J. Except
for two important passages and one minor passage of which complaint is made,
and to which I will come later, Lawton J.s direction to the jury was
unexceptionable as an exposition of the law as it has been declared in the
House of Lords by an unanimous House in Rookes v. Barnard and applied by the Master of the
Rolls and ten Lords Justices and one puisne judge in the above cases in the
Court of Appeal and as it had been expounded by Widgery J. in his direction to
the jury in Manson v. Associated Newspapers Ltd. The
appeal to the Court of Appeal At the
end of the seventeen-day trial the costs of the proceedings which, as between
party and party, followed the event, must have already been enormous. Both
defendants accepted the verdict on liability. The defendant Irving appealed on
all the damages awarded. The present appellants appealed on the award of
£25,000 by way of exemplary damages. The appeal
lasted nine days before the Court of Appeal (Lord Denning M.R., Salmon and
Phillimore L.JJ.) and judgment was given on March 4, 1971, dismissing both
appeals with costs, which must by this time, with the costs of the trial, even
on a party and party basis, have greatly exceeded the amount of the award.
Before the Appellate Committee of this House the appeal lasted 13 working days,
thus again greatly increasing the sum at stake, though by this time the
respondent Irving had given up the struggle. Judgment
of the Court of Appeal The Court
of Appeal took a somewhat unusual course. On the view which they formed of the
matter, which, as will appear, I have come to share though with greater
hesitation than they expressed, they were for dismissing the appeal on the
grounds that the criticisms of the direction by Lawton J. failed, and that the
mere size of the award was not one which, on accepted principles, could be
attacked. If they had stopped there, it is possible, and perhaps likely, that
the proceedings would have come to an end. It is doubtful if leave to appeal to
this House would have been given and if it had not, the two remaining parties
would have been spared the costs of the 13 days hearing in your
Lordships House. Even if leave to appeal had been given in the above circumstances
a great deal of the time occupied before us would have been saved. But the
Court of Appeal did not stop at dismissing the appeal on these grounds. Whether
or not they were encouraged by the zeal of plaintiffs counsel, they
put in the forefront of their judgments the view that Rookes v. Barnard [1964] A.C. 1129 was wrongly
decided by the House of Lords and was not binding even on the Court of Appeal.
It was, so they said, arrived at per incuriam, and without argument from
counsel. It ignored, they claimed, two previous decisions in the House of
Lords, Ley v. Hamilton (1935) 153 L.T. 384 and E. Hulton & Co. v. Jones [1910] A.C. 20, which had
approved awards of punitive or exemplary damages on lines inconsistent with
Lord Devlins opinion in Rookes v. Barnard. They felt themselves fortified
in this view with the somewhat cool reception in the [*1053] Commonwealth of Rookes v. Barnard, particularly in the Australian
Supreme Court decision in Uren v. John Fairfax & Sons Pty. Ltd. (1966) 117 C.L.R. 118 which had
been affirmed so far as regards Australian law by the Judicial Committee of the
Privy Council in the associated case of Australian Consolidated Press Ltd.
v. Uren [1969] 1
A.C. 590. Neither Lord Denning M.R. nor Salmon L.J. seem to have been in any
way inhibited or embarrassed by the fact that each had been party to at least
one of the decisions of the Court of Appeal applying Rookes v. Barnard [1964] A.C. 1129 without
question. Not content with all this, all three members of the Court of Appeal went
further still and, besides declaring Rookes v. Barnard to have been decided per incuriam
and ultra vires, proceeded to say that it was unworkable,
and in the meantime, therefore [1971] 2 Q.B. 354, 384 judges should
direct juries in accordance with the law as it was understood before Rookes
v. Barnard
which the court considered, to use the phrase of Lord Denning M.R. as
settled. As sent
to us by the Court of Appeal, therefore, the appeal before us raised several
questions of wide ranging importance. Quite apart from the merits of the
respective litigants, these questions include the status of judgments and the
relevance of precedent in this House, the circumstances when, if at all,
decisions of this House may be questioned by the Court of Appeal, and judges of
first instance directed by the Court of Appeal to disregard them. There is also
the whole question of exemplary damages as canvassed in Rookes v. Barnard and subsequent decisions. What
began as a simple proceeding between a plaintiff and two defendants has
assumed, at the expense of two of the litigants, the dimensions of a
constitutional question and a general enquiry into one aspect (and perhaps more
than one aspect) of the law of damages. The
course taken by the Court of Appeal In view
of their importance it is unavoidable that before entering into the merits of
the appeal I should discuss in a few paragraphs both the propriety and the
desirability of the course taken by the Court of Appeal. I desire to do so briefly
and with studied moderation. From the
point of view of the litigants it is obvious, I would have thought, that, on
the view taken by the Court of Appeal, the course taken was unnecessary.
Private litigants have been put to immense expense, of which most must be borne
by the loser, discussing broad issues of law unnecessary for the disposal of
their dispute. If the
Court of Appeal felt, as they were well entitled to do, that in the light of
the Australian and other Commonwealth decisions Rookes v. Barnard ought to be looked at again by
the House of Lords, either generally or under the Practice Declaration of
1966, Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234, they were perfectly at
liberty to say so. More, they could have suggested that so soon as a case at
first instance arose in which the ratio decidendi of Rookes v. Barnard was unavoidably involved, the
parties concerned might wish to make use of the so-called
leap-frogging procedure now available to them under the
Administration of Justice Act 1969 and thus avoid one stage in our three-tier
system of appeals. But to impose on these litigants, to whom the question was,
on the courts view, unnecessary, the inevitable [*1054] burden of further costs after all they
had been through up to date was not, in my view, defensible. Moreover,
it is necessary to say something of the direction to judges of first instance
to ignore Rookes v. Barnard as unworkable. As will be seen when I
come to examine Rookes v. Barnard in the latter part of this opinion, I am driven to the
conclusion that when the Court of Appeal described the decision in Rookes v.
Barnard as
decided per incuriam or unworkable they
really only meant that they did not agree with it. But, in my view, even if
this were not so, it is not open to the Court of Appeal to give gratuitous
advice to judges of first instance to ignore decisions of the House of Lords in
this way and, if it were open to the Court of Appeal to do so, it would be
highly undesirable. The course taken would have put judges of first instance in
an embarrassing position, as driving them to take sides in an unedifying
dispute between the Court of Appeal or three members of it (for there is no
guarantee that other Lords Justices would have followed them and no particular
reason why they should) and the House of Lords. But, much worse than this,
litigants would not have known where they stood. None could have reached
finality short of the House of Lords, and, in the meantime, the task of their
professional advisers of advising them either as to their rights, or as to the
probable cost of obtaining or defending them, would have been, quite literally,
impossible. Whatever the merits, chaos would have reigned until the dispute was
settled, and, in legal matters, some degree of certainty is at least as
valuable a part of justice as perfection. The fact
is, and I hope it will never be necessary to say so again, that, in the
hierarchical system of courts which exists in this country, it is necessary for
each lower tier, including the Court of Appeal, to accept loyally the decisions
of the higher tiers. Where decisions manifestly conflict, the decision in Young
v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718 offers guidance to each tier in matters
affecting its own decisions. It does not entitle it to question considered
decisions in the upper tiers with the same freedom. Even this House, since it
has taken freedom to review its own decisions, will do so cautiously. That this
is so is apparent from the terms of the declaration of 1966 itself where Lord
Gardiner L.C. said [1966] 1 W.L.R. 1234: Their Lordships regard the use of precedent as
an indispensable foundation upon which to decide what is the law and its
application to individual cases. It provides at least some degree of certainty
upon which individuals can rely in the conduct of their affairs, as well as a
basis for orderly development of legal rules. Their Lordships nevertheless recognise that too rigid
adherence to precedent may lead to injustice in a particular case and also
unduly restrict the proper development of the law. They propose, therefore, to
modify their present practice and, while treating former decisions of this
House as normally binding, to depart from a previous decision when it appears
right to do so. In this connection they will bear in mind the danger of
disturbing retrospectively the basis on which contracts, settlements of
property and fiscal arrangements have been entered into and also the especial
need for certainty as to the criminal law. [*1055] This announcement is not intended to affect the use of
precedent elsewhere than in this House. It is
also apparent from the recent case of Reg. v. National Insurance
Commissioner, Ex parte Hudson [1972] A.C. 944, where the decision in Reg. v. Deputy
Industrial Injuries Commissioner, Ex Parte Amalgamated Engineering Union, In re
Dowling [1967] 1
A.C. 725 came up for review under the 1966 declaration, that the House will act
sparingly and cautiously in the use made of the freedom assumed by this
declaration. In
addition, the last paragraph of the declaration as quoted above clearly affirms
the continued adherence of this House to the doctrine of precedent as it has
been hitherto applied to and in the Court of Appeal. The
merits of the appeal It is now
possible to turn to the merits of the case so far as these were canvassed
before us on the assumption of the continued authority of the Rookes v.
Barnard decision.
Before us the appellants made three contentions. (i) That there was no evidence
to be left to the jury that the conditions were fulfilled to bring the case
within one of the three categories of cases listed by Lord
Devlin in Rookes v. Barnard as being appropriate for an award of punitive damages,
and in particular the second, which was admittedly the only relevant category.
(ii) That, even on the assumption that the first contention was wrong, Lawton
J. had misdirected the jury in at least two important matters. (iii) That in
any event the award of £25,000 was excessive, and could not be
sustained. In order to understand these contentions it is necessary to say
something about the facts. The facts
on which the book was founded The fate
of the PQ17 convoy is one of the most publicised, as well as one of the most
tragic, naval operations of World War II. The evidence showed that it had been
written about many times, notably by Captain Roskill, R.N., the official naval
historian, and by the late Mr. Godfrey Winn, whose book was said to have sold
half a million copies. It is unnecessary to recapitulate the facts here. They
are graphically described in the judgment of Lord Denning M.R. It is
sufficient to say that the primary cause of the disaster flowed from an order
to the convoy to scatter, which made the ships in it an easy prey to the
aircraft and submarines by which they were attacked. This order to scatter was
issued by the Admiralty in Whitehall and was due to a faulty appreciation by
the naval staff, in particular, as is now known, by the then First Sea Lord
himself, that the German battleship Tirpitz was at sea, and to a decision, also
by the then First Sea Lord, to take the responsibility for the order on himself
rather than leave the decision to the discretion of the naval officers on the
spot. The naval officers on the spot, including Admiral Hamilton in command of
the cruiser squadron, and Captain Broome, had no option but to obey, and the
convoy was thus left to fan out on individual courses covering a vast area of
sea. So far
there can be no controversy. But the two naval officers, rightly considering
that the order to scatter must denote the approach of a superior [*1056] hostile surface force, sailed west in
company. Admiral Hamilton was acting under precise orders from the Admiralty.
Captain Broome was not. Captain Broome had proposed and Admiral Hamilton
accepted that he should put himself under command of the admiral commanding the
cruisers. That this decision was courageous there can be no doubt. What has
been subsequently disputed was whether it was as wise as it was certainly
brave. Some have thought that it was no more than the inevitable reaction of
gallant and experienced naval officers to the threat of surface action. Others
have thought that its effect was to remove from the area of the convoy the only
naval elements, which might have countered the U-boat and air attacks, and thus
to contribute to the extent of the convoys losses. Which of these two
views be correct it is not appropriate here to discuss. But what is relevant to
the present appeal is that those who criticised the decision had previously
fastened the responsibility on Admiral Hamilton. It was one of the distinctive
features of Mr. Irvings book (which it may have shared with a German
work with whose author he had collaborated) that it attempted to place
responsibility for the withdrawal of the destroyers entirely or mainly on the
shoulders of Captain Broome. This was a difficult thesis to sustain since
Captain Broome was the junior officer of the two, and had only
proposed the course which both forces ultimately pursued.
It also involved the propositions, both disputable, that the decision was wrong
in the light of the information then available, and that the absence of the
destroyers made a significant difference to the loss of life and material. From the
start Captain Broome contended that the passages in the book relating to
himself which it is not necessary to set out at length were defamatory. In
paragraph 5 of his statement of claim he said that they meant and were intended
and understood to mean: that the plaintiff was disobedient, careless,
incompetent, indifferent to the fate of the merchant ships and/or by virtue
thereof had wrongly withdrawn his destroyer force from the convoy and/or taken
it closer to the German airfields than he had been ordered to and had thereby
been largely responsible for or contributed extensively to the loss of the
aforesaid ships and the effective destruction of more than two-thirds of the
Convoy PQ17. In
addition, at the trial it was contended that the ordinary and natural meaning
of one of the relevant passages was that Captain Broome was a coward and for
this reason needed no second bidding to desert the convoy.
The defendants both disputed that the book bore any of these meanings, but
contended that without them the passages in the book were true. It is evident
from their verdict and from the magnitude of the award of damages that the jury
rejected the contentions of the defence, though how far and to what extent must
be to some extent a matter of speculation. The
material before the jury From the
commencement of the trial it was contended for Captain Broome that
notwithstanding the limitations of Rookes v. Barnard [1964] A.C. 1129, he was entitled
to exemplary or punitive damages. The
trial judge ruled (though on this point he was subsequently overruled by the
Court of Appeal) that, if so, he was bound to include a plea to this effect in
[*1057] his statement of claim, and
the pleading consequently introduced into the statement of claim by way of
reamendment affords a convenient summary of the way the case was then put. The
pleader wrote in paragraph 7: The plaintiff will assert that the defendants
and each of them calculated that the money to be made out of the said book
containing the passages complained of would probably exceed the damages at risk
(if any) and that the plaintiff is consequently entitled to recover exemplary
damages. He then
went on to give particulars. If established, the plea clearly puts the case
within the second of the three exceptional categories listed by Lord Devlin in Rookes
v. Barnard. The
question for the judge was whether there was evidence to leave to the jury on
which they could find that the case was indeed to be placed in this category.
If there was such evidence and if the jury were not misdirected, inclusion
within the second category would have entitled (though not compelled) them to
make some award on this account. The
appellants contended before the Court of Appeal and before us that there was no
such evidence. In my opinion, this contention wholly fails. To convince us,
they would in practice have to establish that there was no evidence on which a
properly directed jury could find that at the time of publication they were
fully aware the words bore and were intended and understood to bear the
meanings attached to them in the statement of claim, since, if at the time of
publication the words were known to bear these meanings, they were false to the
knowledge of the appellants and published with that knowledge for profit. In my
view, the meanings or most of them are sufficiently obvious from a casual
reading of the book, and the inadequate attempts by the author or the
publishers to provide an alternative meaning or an escape route by which they
could argue the alternative before a jury by small modifications or carefully
phrased ambiguities, are less an indication of innocence or na•vetŽ than a
clear sighted appreciation of the danger that they faced. Mr. Irving was not
represented before us, but his case was strenuously advanced before the Court
of Appeal, and in another context (to be discussed later) we had to consider
his case when counsel for the appellant expressly accepted as accurate the
Master of the Rolls colorful account of his behavior. It is
abundantly plain from this account that Mr. Irving at least knew, and carefully
planned, what he was doing, that he went on with it in spite of repeated
warnings from the most authoritative sources, that he conceived the book
as a book with a difference as all men (that is, including
Captain Broome) were shown to be cowards, and that he
prided himself on being able to say some pretty near the knuckle
things about these people (he was directly referring to Captain
Broomes threat of proceedings) but if one says it in a
clever enough way, they cannot take action. The rules of evidence
preclude us from taking these admissions of his state of mind as evidence
against the appellants. But, in my opinion, the near the knuckle
things said about Captain Broome in the course of this book,
including the allegation that he was a coward, were said sufficiently plainly
for an experienced publisher to know perfectly well what their meaning was and
the fact that they were said in a clever enough way should
[*1058] have told them plainly that
they were said with deliberate intent to convey the meanings without incurring
heavy damages. But the
case against Cassells does not stop at the obvious meanings to be attached to
the passages in the book. Even if, which I could not easily accept, they did
not understand the drift of the book at a first reading, they acquired the
right to publish and they went on actually to publish in circumstances from
which the jury were clearly entitled to infer that they went ahead with the
most cold-blooded and clear-sighted appreciation of what they were doing. The
appellants were not the first publishers selected by Mr. Irving. His original
publishers were William Kimber Ltd., who ultimately refused to publish the book
on the ground that the book was a continuous witch hunt of Captain
Broome having been advised by Captain Roskill, who gave evidence for
Captain Broome, and perhaps by others, that the book reeks of
defamation. In the absence of evidence by either defendant at the
trial, it is impossible to say how much of this was known to the appellants.
But it is certain that Mr. William Kimber warned the appellants in unmistakable
terms that his house had rejected the book precisely on the grounds that it was
libellous, amongst others of Captain Broome. The undisputed response of the
appellants was either flippant or cynical. Moreover, Captain Broome himself had
warned them on several occasions that, if they published the book, as they did,
in substantially the form in which he had seen it, they must expect an action for
libel from himself. That they took these threats seriously can be seen from
their reaction to the latest of them which followed the issue of the proof
copies. On receipt of this, the appellants placed a stop on the book in the
following terms: Will you please note that absolutely and
positively, not one single copy, on any pretext whatsoever, is to be removed
from the house without reference to me. In
attempts to sell the serial rights their efforts were shot
down by three national Sunday newspapers presumably on the same
grounds. What the
full explanation of their subsequent publication may have been will never be
known, since the appellants did not elect to give evidence. But, in the absence
of any explanation, the jury were perfectly entitled to infer that they had
calmly calculated that the risks attendant on publication did not outweigh the
chances of profit. What is certain is that, in so far as they were aware that
the passages complained of could be reasonably understood to bear the meanings
attached to them by Captain Broome, including the allegation of cowardice, they
published them knowing them in this sense to be false, since no effort was made
at any stage to suggest that there was any material on which a reasonable publisher
could base the belief that the passages complained of, if they bore these
meanings, were true. In his judgment in the Court of Appeal Lord Denning M.R.
lists other features of the case against the appellants upon which the jury
were entitled to base inferences. With most of these, except the reference to
the paperback edition, which, contrary to what he says (perhaps per incuriam),
was not published by the appellants but under licence by another publisher, I
find myself in agreement. In particular, I concur in what was said in the Court
of Appeal about the dust cover of the book, [*1059]
which, making every allowance for the popular style in such productions, and
putting the most favorable interpretation upon every phrase in it, seems, to my
mind, in the absence of explanation, to indicate that the publishers were well
aware of the full implication of the passages complained of and were prepared
to sell the book on this sensational interpretation. In such circumstances, to
argue that there was no evidence from which the jury could infer that
the appellants had calculated that the money to be made out of the
book containing the passages complained of would probably exceed the damages at
risk (if any) was, to my mind, a somewhat forlorn hope, and nothing
which counsel for the appellants said in the course of his strenuous and ably
conducted argument has convinced me to the contrary. I will refer to the
passage from Lord Devlins speech in Rookes v. Barnard [1964] A.C. 1129 relating to the
categories later for its proper interpretation, but I cannot see how, on any
view, if these facts were proved to the satisfaction of a jury, properly
directed, they are not sufficient to enable the jury to base inferences
bringing the publication within the second category. The
direction on the relation between the two awards There was
much more substance in, and I find much greater difficulty in deciding upon,
the appellants second contention, which was based, not upon Lord
Devlins three listed categories, but upon his exposition of the
general conditions under which exemplary damages may be awarded after the
conclusion of the three considerations listed on pp.
1227-1228 of the report which, he says, ought always to be borne in mind. At
this point, Lord Devlin said, at p. 1228: Thus a case for exemplary damages must be
presented quite differently from one for compensatory damages; and the judge
should not allow it to be left to the jury unless he is satisfied that it can
be brought within the categories I have specified. But the fact that the two
sorts of damage differ essentially does not necessarily mean that there should
be two awards. In a case in which exemplary damages are appropriate, a jury
should be directed that if, but only if, the sum which they have in mind to
award as compensation (which may, of course, be a sum aggravated by the way in
which the defendant has behaved to the plaintiff) is inadequate to punish him
for his outrageous conduct, to mark their disapproval of such conduct and to
deter him from repeating it, then it can award some larger sum (italics mine).
If a verdict given on such direction has to be reviewed upon appeal,
the appellate court will first consider whether the award can be justified as
compensation and if it can, there is nothing further to be said. If it cannot,
the court must consider whether or not the punishment is, in all the
circumstances, excessive. There may be cases in which it is difficult for a
judge to say whether or not he ought to leave to the jury a claim for exemplary
damages. In such circumstances, and in order to save the possible expense of a
new trial, I see no objection to his inviting the jury to say what sum they
would fix as compensation and what additional sum, if any, they would award if
they were entitled to give exemplary damages. That is the course which he would
have [*1060] to take in a claim to
which the Law Reform (Miscellaneous Provisions) Act, 1934, applied. In my
opinion, this passage contains a most valuable and important contribution to
the law of exemplary damages which, prior to Rookes v. Barnard, had not, so far as I am aware,
been adequately stressed in any previous case, and which, in my view, would
retain, and possibly even increase, its value even if the categories in Rookes
v. Barnard were
to be wholly rejected. In
essence the doctrine is that the award of a punitive element in damages, if it
is ever permissible, must also remain discretionary, and, in order to give
effect to the second of the three considerations listed at
p. 1227, the judge should always warn a jury that they need not award anything,
and must not do so unless they are satisfied that a purely compensatory award
(in a sense which I will explain) is inadequate. It follows that whatever they
do award should only be a sum which has taken into account the award of damages
already notionally allowed as compensation, including, where appropriate, the
aggravated element required by a defendants bad
conduct, and should never exceed the amount by which the required penalty (if
that is the right word) exceeds the required compensation. I shall
revert to this feature of Rookes v. Barnard later. But what is said in
substance by the appellants in this case is that the summing-up failed to give
effect to this important and, in my view, vital principle. The
learned judge directed the jury over two days and much that he said was
irrelevant to the question of exemplary damages. Of what was relevant to
exemplary damages, most was a direction to the jury about the second category
and the evidence in the case relevant to it. This reflected the balance of
argument by counsel during the case and it appears from a remark in the
judgment of Phillimore L.J. in the Court of Appeal that, in some sense at
least, both counsel agreed that, dependent on the view which the jury took of
the facts, Lawton J. should leave the question of exemplary damages to the
jury. But there were two passages in the summing-up relevant to the present
issue. The first was a passage on the first day of the summing-up when the
judge, having directed the jury that punitive damages were in the nature of a
fine, went on to give two examples from the criminal law carrying the moral that
the punishment must neither be excessive nor inadequate to the gravity of the
offence and said: If you are going to punish a man to show him
that libel does not pay, provided, of course, it comes within Widgery
J.s definition (he was referring to Manson v. Associated
Newspapers Ltd.
[1965] 1 W.L.R. 1038) what you do must be reasonable in all the
circumstances, bearing in mind that it is a penalty. The
second, and more important, of the passages was on the second day of the summing-up
when, after leaving an agreed list of questions to the jury, the learned judge
said: As you will see, the issue of damages has been
divided into two questions. The first one is No. 3, What compensatory
damages do you award the plaintiff? You will remember that
compensatory [*1061] damages are
compensation for something, they are not given to you. When you come to
consider that question you must remember that this is a joint publication by
Cassell & Co. Ltd., and Mr. Irving. You do not award two different sums.
You award one sum and you will leave the lawyers to work out what it means, but
it is one sum. Do you all follow that? Then having decided what are the proper
additional compensatory damages then you will go on and consider the fourth
question, namely, Has the plaintiff proved that he is entitled to
exemplary damages? It is for him to prove that he is entitled to it,
not for the defendants to prove that he is not. This question has got to be
divided up into a number of subsidiary questions and the reason for this is
problems of law which arise, but you do not have to concern yourselves with
those. That is my responsibility. There are two defendants and, as I have been
at pains to point out to you during my summing-up, the case against each
defendant on the issue of punitive damages is different, so you will have to
consider the case against each defendant separately. I suggest you start with
Mr. Irving and then go on to Cassell & Co. Ltd. In respect of each of them
you will ask yourselves this question: Has the plaintiff proved his
entitlement against that defendant? If the answer is yes then you
will have to go on and assess how much punitive damages should be awarded. If
the answer is no he will get no punitive damages. At least that will be your
finding. What the law is is another matter, but that will be your finding.
Having carried out that operation in relation to Mr. Irving you should carry
out exactly a similar operation in relation to Cassell & Co. Remember all
the time that letters written by Mr. Irving or to Mr. Irving, other than by
Cassells, are not evidence against Cassell & Co. I cannot stress that too
much. You will have to ask yourselves: Has he proved that he is
entitled to punitive damages against Cassell & Co. Ltd? If the
answer is no that is that. If the answer is yes you will have to assess the
damages. I have put all that into an omnibus lawyers series of
questions. I could have put it all into one question, but I came to the
conclusion that it would probably be better for you. I will read paragraph 4
again. Has the plaintiff proved that he is entitled to exemplary
damages? If yes, has he proved his entitlement against one or both of the
defendants? If one only, against which one? Then you see the last
question under this heading, What additional sum should be awarded
him by way of exemplary damages? Would you be good enough to
underline the word additional, because I want to know, and
learned counsel want to know, if you do decide to award punitive damages, how
much more do you award over and above the compensatory damage. What was
said against this passage on behalf of the appellants was that this summing-up
was defective in that it did not make it absolutely plain to the jury that
before making any punitive award against the defendant they must first take
into account and assess the punitive effect of any compensatory award
(including any element of aggravated damage) and only award
such amount (if any) by which the appropriate penalty exceeded such award.
[*1062] I am bound to say that I
have found the greatest difficulty in accepting the summing-up on this point as
adequate, and my difficulties were increased by two passages in the final
speech of Captain Broomes counsel which, as counsel for the
appellants persuasively argued, seemed to indicate that the respective awards
of compensatory and punitive damages were entirely separate assessments and that
one should not be balanced against the other. In so far as counsel said this,
and he appears to have done so, he was, in my opinion, entirely wrong. In the
end, however, I have come to the con-clusion that the judges
direction was just adequate to convey the impression intended in the passage of
Lord Devlins speech Which had been accurately read to the jury by
counsel for Mr. Irving and that the jury were not in fact misled. In coming to
this conclusion I have been impressed, as was the Court of Appeal, by the
stress the judge laid on the word additional in the passage
cited, by the fact that the form of the questions left to the jury (which did
not include as it should have done, the words if any in
that relating to punitive damages) was agreed by counsel and by the fact that
the line of the judges summing-up was entirely in accord with the
case for the appellants as it was put to the jury on their behalf, and that
everyone seems to have assumed that the result of the jurys answers
was that which in fact obtained. I desire, however, to say that the direction
on this point, if sufficient, as I am constrained to say it was, was only
barely sufficient, and that I trust that in future cases of this kind trial judges
will stress the matter a good deal more clearly and with greater emphasis than
was done here. In the present case I do not think that the judge can be blamed
for putting the matter compendiously in a form which seems to have misled no
one, which accorded with the way and with the emphasis with which it had been
put to the jury on behalf of the appellants, and which, according to Phillimore
L.J.s observation quoted above, had, in some sense, been agreed. A single
award or two? Less
meritorious, in my view, was the second criticism of the direction put before
us. This was in effect that the judge did not correctly direct the jury as to
the principles on which a joint award of exemplary damages can be made against
two or more defendants guilty of the joint publication of a libel in respect of
which their relevant guilt may be different, and their means of different
amplitude. With high regard for the judgments of Lord Denning M.R. and of
Salmon L.J., I differ from both in what they said on this aspect of the matter,
both as to the effect of the judges summing-up and to what it ought
to be in such cases. Lord Denning M.R. said [1971] 2 Q.B. 354, 383: There is, of course, a difficulty. How is a jury
to assess the one figure against two defendants. Are they to fix it at a
high sum which they think the mare blameworthy ought to pay? Or a low sum for
the least blameworthy? That must be left to the jury. They may, if they choose,
fix a figure in between. The judge can, I think, tell them that they can fix it
as against the more blameworthy, expecting him to pay it: and leave the least
blameworthy (if he is called upon to pay) to recover contribution. In this case
the judge left it to them without any [*1063] specific direction. That was, I think quite
legitimate; and it is no ground for disturbing the verdict. (the italics are mine). Lord Denning then added: In any case, however, I think Cassells are not at
liberty to take this point. They did not ask judge or jury to split the
damages. The judge told counsel the questions he was going to put to the jury:
and asked for their comments. That was the time for counsel to ask for the
exemplary damages to be split. As that was not done, it is too late to ask in
this court. Salmon
L.J. appears to have thought that the award should reflect the amount due by
the most guilty of the tortfeasors and he said at p. 393: ... it is well settled that where there are
several defendants who have all committed a joint tort, there can be only one
award of one sum of damages against all of them: Greenlands Ltd. v.
Wilmshurst and London Association for Protection of Trade [1913] 3 K.B. 507. It may bear
hardly on one or more of the defendants. The moral may be that you must be as
careful in choosing your companions in tort as you are in choosing your
companions when you go out shooting. (The italics are again mine.) With
respect to both judgments which, as will be seen, are arguably not quite
consistent with one another, I think the effect of the law is exactly the
opposite and that awards of punitive damages in respect of joint publications
should reflect only the lowest figure for which any of them can be held liable.
This seems to me to flow inexorably both from the principle that only one sum
may be awarded in a single proceeding for a joint tort, and from the
authorities which were cited to us by Mr. Parker in detail in the course of his
argument. Mr. Parker referred us to Heydons Case (1612) 11 Co.Rep. 5a; Clark
v. Newsam (1847)
Exch. 131; Hill v. Goodchild (1771) 5 Burr. 2790; Dawson v. MClelland [1899] 2 Ir.R. 486; Greenlands
Ltd. v. Wilmshurst and London Association for Protection of Trade [1913] 3 K.B. 507, especially at
p. 521; Smith v. Streatfeild [1913] 3 K.B. 764, 769; Chapman v. Lord Ellesmere [1932] 2 K.B. 431, 471 per
Slesser L.J.; Dougherty v. Chandler (1946) 46 N.S.W.S.R. 370; Egger v. Viscount Chelmsford [1965] 1 Q.B. 248, 262 and to Gatley
on Libel and Slander,
6th ed. (1967), p. 606, para. 1390. I think that the inescapable conclusion to
be drawn from these authorities is that only one sum can be awarded by way of
exemplary damages where the plaintiff elects to sue more than one defendant in
the same action in respect of the same publication, and that this sum must
represent the highest common factor, that is, the lowest sum for which any of
the defendants can be held liable on this score. Although we were concerned
with exemplary damages, I would think that the same principle applies generally
and in particular to aggravated damages, and that dicta or apparent dicta to
the contrary can be disregarded. As counsel conceded, however, plaintiffs who
wish to differentiate between the defendants can do so in various ways, for
example, by electing to sue the more guilty only, by commencing separate
proceedings against each and then consolidating, or, in the case of a book or
newspaper [*1064] article, by suing
separately in the same proceedings for the publication of the manuscript to the
publisher by the author. Defendants, of course, have their ordinary contractual
or statutory remedies for contribution or indemnity so far as they may be
applicable to the facts of a particular case. But these may be inapplicable to
exemplary damages. Having
established his principle, counsel for the appellant went on to argue that the
judge had misdirected the jury, seeking to encourage us in this belief by the
submission that, if he had persuaded at least two members of the Court of
Appeal to defend it on one of two possibly inconsistent and erroneous bases,
the learned judge might well have succeeded in making the jury accept one of
them as the ground of their award. The
passage in the summing-up on which the appellants relied for this purpose was
as follows. It occurs immediately after the passage already quoted in which the
judge directs the jury to regard the exemplary damages as a sum additional to
the compensatory award. Lawton J. went on: You may be saying to yourselves: if we do take
the view that both these defendants should pay something by way of punitive
damages, should we take into consideration the relative culpability of each
one? Again, and I merely say this by way of illustration, and certainly not by
way of guidance to you, say, for example you took the view that Mr. Irving was
more to blame than Cassell & Co., or to be fair, you took the view that
Cassell & Co. being an experienced firm of publishers were more to blame
than this young man, Mr. Irving, should you make Cassell & Co. pay a larger
sum by way of punitive damages than Mr. Irving? The answer to that is
no (italics mine). Whatever damages, if any, you decide should be
awarded by way of punitive damages must be the same sum in respect of both Mr.
Irving and Cassell & Co. Ltd., if you find them both liable to pay punitive
damages. Have I made that clear? This
direction is in many ways defective as a piece of clear English prose. In
particular, it contains an ambiguity, later cured by an exchange in the
presence of the jury between counsel and the Bench as to whether the jury is to
award a single sum against both defendants or two sums, each against one of the
defendants. But on the crucial point as to whether this sum, when awarded,
should represent the higher or the lower figure for which the jury found either
guilty, I myself find no difficulty in thinking that the jury would have been
clear that they were to award the lower. I would hope that on other occasions
this would be made even plainer, but I find it difficult to criticise an
experienced judge for not being absolutely crystal clear on this point at the
end of a two-day direction over a wide range of different topics following a
17-day trial. I would not disturb the verdict on these grounds. I also
consider that, having agreed to the form of the questions left to the jury, it
was not really open to the appellants to contend, on appeal, that the awards
should be split. In any case I am fortified in my view of the matter by the
fact that I find the same difficulty as did the Court of Appeal in
differentiating in any way between the moral culpability of the two defendants.
Mr. Irving may have been the author of the defamatory [*1065] matter. But the appellants published
it, on the jurys finding, with their eyes open as to what it contained.
It may be that Mr. Irving had fewer means, and, if the jury were looking on the
exemplary damages from the point of view of deterring him, they could have
awarded a smaller sum. But there seems to have been no evidence concerning the
means of either party, and I do not see how at this late date we can properly
be invited to speculate. The enterprise was essentially a joint one, and if the
appellants had not all the information available to Mr. Irving, they had enough
to make sure that they knew exactly what they were doing. It is difficult to
know on what principle the jury could have differentiated between the two
defendants. Was the
award excessive? The final
point taken for the appellants was that the award of £25,000
exemplary damages, or, as it was equally properly, and possibly better, put,
the total award of £40,000 (which included the exemplary element) was
so far excessive of what twelve reasonable men could have awarded that it ought
to be set aside and a new trial ordered. I cannot disguise from myself that I
found this an extremely difficult point in the case, and have only decided that
the verdict should not be disturbed, with great hesitation, because I am very
conscious of the fact that I would certainly have awarded far less myself, and
possibly, to use a yardstick which some judges have adopted as a rule of thumb,
less than half the £25,000. A number
of factors lead me, however, to the belief that the verdict should not be
disturbed. The first, and paramount, consideration in my mind is that the jury
is, where either party desires it, the only legal and constitutional tribunal
for deciding libel cases, including the award of damages. I do not think the
judiciary at any level should substitute itself for a jury, unless the award is
so manifestly too large, as were the verdicts in Lewis v. Daily Telegraph
Ltd. [1963] 1
Q.B. 340 or manifestly too small, as in English and Scottish Co-operative
Properties Mortgage and Investment Society Ltd. v. Odhams Press Ltd. [1940] 1 K.B. 440, that no
sensible jury properly directed could have reached the conclusion. I do not
think much depends on the exact formula used to describe the test to be
applied, whether the traditional language so large (or small) that
twelve sensible men could not reasonably have given them: perLord
Esher M.R. in Praed v. Graham (1890) 24 Q.B.D. 53, 55 or that of Palles C.B. in MGrath
v. Bourne (1876)
Ir.R. 10 C.L. 160, 164 cited by Lord Wright in Mechanical and General
Inventors Co. Ltd.
and Lehwess
v. Austin and Austin Motor Co. Ltd. [1935] A.C. 346, 378, that no reasonable
proportion existed between it and the circumstances of the case. The
point is that the law makes the jury and not the judiciary the constitutional
tribunal, and if Parliament had wished the roles to be reversed in any way,
Parliament would have said so at the time of the Administration of Justice
(Miscellaneous Provisions) Act 1933, since section 6 of that Act expressly
excepts defamation actions (otherwise than in a limited class of case) from the
general change which it then authorised. In
addition to the above cases counsel for the respondent cited Youssoupoff v.
Metro-Goldwyn-Mayer Pictures Ltd. (1934) 50 T.L.R. 581, [*1066]
583, 584; Bocock v. Enfield Rolling Mills Ltd. [1954] 1 W.L.R. 1303; Scott
v. Musial [1959]
2 Q.B. 429, 436; Morey v. Woodfield (No. 2) (Note) [1964] 1 W.L.R. 16; McCarey v.
Associated Newspapers Ltd. (No. 2) [1955] 2 Q.B. 86 and Broadway Approvals Ltd. v. Odhams
Press Ltd. (No.
2) [1965] 1 W.L.R. 805 especially at pp. 818, 820. I do not
see anything in the above cases which alters the principle involved, nor am I
aware of anything in the nature of exemplary damages to alter it in this
limited class of case. It may very well be that, on the whole, judges, and the
legal profession in general, would be less generous than juries in the award of
damages for defamation. But I know of no principle of reason which would
entitle judges, whether of appeal or at first instance, to consider that their
own sense of the proprieties is more reasonable than that of a jury, or which
would entitle them to arrogate to themselves a constitutional status in this
matter which Parliament has deliberately withheld from them, for aught we know,
on the very ground that juries can be expected to be more generous on such
matters than judges. I speak with the greater conviction because my own view is
that the legal profession is right to be callous in such matters and juries are
wrong if they can be said to be more generous. But that is not the law and I do
not think that judges who hold my view are any more entitled to change the law
on this topic than they have been in the past. Counsel
very rightly drew our attention to observations of Lord Devlin in Rookes v.
Barnard [1964]
A.C. 1129, 1227-1228, when he said: I should not allow the respect which is
traditionally paid to an assessment of damages by a jury to prevent me from
seeing that the weapon is used with restraint. It may even be that the House
may find it necessary to follow the precedent it set for itself in Benham v.
Gambling [1941]
A.C. 157, and place some arbitrary limit on awards of damages that are made by
way of punishment. I regard Benham
v. Gambling as
setting an absolutely necessary but wholly arbitrary rule to solve an
absolutely insoluble problem, and I do not think it could readily be extended
to exemplary damages for libel simply on the ground that judges do not agree
with juries on quantum. I do not think the first sentence in Lord Devlins
observation means more than that the House will use its legitimate powers to
interfere with awards by juries with particular regard to the need for
preserving liberty, which he was concerned to express, and, if it means that
the House was conferring on itself greater powers than it previously possessed,
I would have regarded it as an usurpation of the function of the legislature as
a whole. We were also referred to the observations of the Court of Appeal in Ward
v. James [1966] 1
Q.B. 273, 301. If the passage quoted there means more than that the court, in
exercising its undoubted right to interfere with unreasonable verdicts, will
have more regard than heretofore to the general level of damages in cases of a
similar nature, and particularly personal injury cases, it may need further
consideration. The
second reason which leads me to decline to interfere with the jurys
verdict in this case is the peculiar gravity of the facts of this case. I share
with Phillimore L.J. the view [1971] 2 Q.B. 354, 400 that the jury must have
found that [*1067] these were grave libels perpetrated quite
deliberately and without regard to their truth by a young man and a firm of
publishers interested solely in whether they would gain by the publication of
this book. They did not care what distress they caused. It is
true, and I have been constrained to say, that I would have treated this
heinous offence against public decency with far less severity than did the jury
in this case. But, at the end of the hearing, I found myself as unable to say
as were the three eminent judges in the Court of Appeal that no twelve
reasonable jurors could have come to a different conclusion from myself. These
matters are very highly subjective, and I do not feel myself entitled to
substitute my own subjective sense of proportion for that of the constitutional
tribunal appointed by law to determine such matters. I should
add, lest I be thought to have overlooked the point, that to avoid the expense
and anxieties of a new trial counsel on both sides agreed to leave to us, in
case the appeal should succeed, the assessment of any sum to be awarded. I
doubt myself how satisfactory this would have been but, quite obviously, before
we embarked upon such a task we should have to be first satisfied that the
original verdict could not stand, and to this preliminary issue the agreement
between counsel is necessarily irrelevant. The
decision in Rookes v. Barnard These
considerations really conclude the result of this appeal. It must, in my view,
be dismissed. But, lest other litigants be put to expense and uncertainty
comparable to that which the parties to this case have, in my view,
unnecessarily suffered, it is now unavoidable that I should deal at length with
the wider issues in the law of damages on which the Court of Appeal founded the
greater part of its judgment. Before I do so I ought to remark that, though
counsel for the appellants took the point that the trial judge should have
withdrawn the question of the paper back edition from the jury, I regard the
way in which he left it to them as so favorable to the appellants as not to
justify a new trial on that ground alone. The
judgment of the Court of Appeal was based on the simple proposition that the
decision in Rookes v. Barnard [1964] A.C. 1129 so far as it affected punitive or
exemplary damages was made per incuriam and without prior argument by counsel
and that judges should in future ignore it as unworkable, and that, in
directing juries, judges of first instance should return to the status quo ante
Rookes v. Barnard
as if that case had never been decided at all. I have
already said, and will not repeat, what I think about the propriety of the
Court of Appeal in doing this at all, and the appropriateness, in view of the
consequences to the parties, of their doing it in this case. I now proceed to
consider how far their opinions are correct. I make no
complaint of their view that Rookes v. Barnard clearly needs reconsideration by
this House, if only because of the reception it has received in Australia,
Canada and New Zealand. I view with dismay the doctrine that the common law
should differ in different parts of the Commonwealth, which is the effect of
the decision in Australian Consolidated Press Ltd. v. Uren [1969] 1 A.C. 590, and anything
one can do in this case to bring the various strands of thought in different
Commonwealth [*1068] countries
together ought to be done. Moreover, as I shall show, many of Lord
Devlins statements have been misunderstood, particularly by his
critics, and the view of the House may well have suffered to some extent from
the fact that its reasons were given in a single speech. Whatever the
advantages of a judgment of an undivided court delivered by a single voice, the
result may be an unduly fundamentalist approach to the actual language
employed. Phrases which were clearly only illustrative or descriptive can be
treated in isolation from their context, as being definitive or exhaustive. I
am convinced that this has happened here and that to some extent at least, the
purpose and nature of Lord Devlins exposition has been misunderstood. The law
before Rookes v. Barnard Whatever
else may be said, the Court of Appeals judgment is based on one
assumption which is plainly incorrect. This assumption is, to quote its most
characteristic expression on the lips of Lord Denning M.R., [1971] 2 Q.B. 354,
379: Prior to Rookes v. Barnard, the law as to exemplary damages was
settled. In point of fact, it was nothing of the kind. Lord Denning
M.R. went on immediately to quote from Mayne and MacGregor on Damages, 12th ed. (1961), the following
passage from para. 207: Such damages are variously called punitive
damages, vindictive damages, exemplary damages, and even retributory damages.
They can apply only where the conduct of the defendant merits punishment, which
is only considered to be so when his conduct is wanton, as where it discloses
fraud, malice, violence, cruelty, insolence, or the like, or as it is sometimes
put, where he acts in contumelious disregard of the plaintiffs rights
... Such damages are recognised to be recoverable in appropriate cases of
defamation; If Lord
Denning M.R. had gone on to quote from paragraph 212 of the same edition he
would have read the following passage, inconsistent with his construction of
the foregoing, under the heading A Double Rationale which
should, I hope, have disabused him of the idea that the law of punitive damages
was in fact settled prior to Rookes v. Barnard. The passage is as follows: 3. A Double Rationale Through all these various cases, however, runs another
thread, giving a very different explanation of the position. For indeed it
cannot be said that English law has committed itself finally and fully to
exemplary damages, and many of the above cases point to the rationale not of
punishment of the defendant but of extra compensation for the plaintiff for the
injury to his feelings and dignity. This is, of course, not exemplary damages at
all. It is another head of non-pecuniary loss to the plaintiff. (The
italics are mine). Indeed,
in the well-known American textbook on The Law of Damagesby the late Professor
Charles T. McCormick, published in 1935 by eke West Publishing Company of
Minnesota occurs the following passage to the same effect on p. 278: [*1069] In England, where exemplary damages had their
origin, it is still not entirely clear whether the accepted theory is that they
are a distinct and strictly punitive element of the recovery, or they are
merely a swollen or aggravated allowance of compensatory
damages permitted in cases of outrage. It is only in America that the cases
have clearly separated exemplary from compensatory damages, and it is only here
that the doctrine, thus definitely isolated, has been attacked and
criticised. More
characteristic than either of these passages and more illustrative of the
confusion which reigned before Rookes v. Barnard is the paragraph on the subject
in Lord Simonds 3rd edition of Halsburys Laws of England vol. 11 (1955) title
Damages; p. 233, para. 391: Exemplary damages. Where the wounded feeling and
injured pride of a plaintiff, or the misconduct of a defendant, may be taken into
consideration, the principle of restitutio in integrum no longer applies.
Damages are then awarded not merely to recompense the plaintiff for the loss he
has sustained by reason of the defendants wrongful act, but to punish
the defendant in an exemplary manner, and vindicate the distinction between a
wilful and an innocent wrongdoer. Such damages are said to be at
large, and, further, have been called exemplary, vindictive, penal,
punitive, aggravated, or retributory. This
passage clearly shows the extraordinary confusion of terminology reflecting
differences in thinking and principle which existed up to 1964. Apart from
anything else, aggravated damages, classed as compensatory
by Mayne and MacGregor, and by Professor McCormick, are assimilated to
exemplary or punitive damages as such, as is the phrase damages at
large, an expression so indefinite in its connotation that
counsel for the appellants in argument felt able to include within it (as this passage
suggests inappropriately) even the general damages for pain and suffering in a
personal injuries case. Clearly, before Rookes v. Barnard, the thinking and the terminology
alike called aloud for further investigation and exposition, and, since in such
cases it is the classic function of this House to make such reviews, I cannot
accept eke simplicity doctrine of the Court of Appeal either that there was no
need to make it, or that the only thing to restore clarity is to go back to the
state of the law as it was in 1963. In passing, I may say that I do not attach
so much importance as did the Court of Appeal to the circumstance that eke two
categories mentioned by Lord Devlin had never been discussed in argument by
counsel. The cases and textbooks on exemplary damages had been exhaustively
read, and when this House undertakes a careful review of the law it is not to
be described as acting per incuriam or ultra vires if it identifies and expounds
principles not previously apparent to the counsel who addressed it or to the
judges and text book writers whose divergent or confusing expressions led to
the necessity for the investigation. Of course, in a sense, it would be easy
enough to direct a jury under the old law if one simply said to them that any
conduct of which they chose on rational grounds to disapprove would give rise
to an award of exemplary damages and that any sum they chose to think
appropriate as the penalty would be acceptable. But no one in recent years has
ever thought this, although it is noteworthy [*1070]
that as recently as 1912 the author of Sedgwicks A Treatise
on the Measure of Damages, 9th ed., vol. I, para. 349, pp. 688-689 was writing: Until comparatively recent times juries were as
arbitrary judges of the amount of damages as of the facts ... Even as late as
the time of Lord Mansfield it was possible for counsel to state the law to be
that The court cannot measure the ground on which the jury find
damages that may be thought large; they may find upon facts within their own knowledge. ... ... The
doctrine of exemplary damages is thus seen to hail e originated in a survival
in this limited class of cases of the old arbitrary power of the
jury. (Italics mine.) Clearly
modern juries must be given adequate professional guidance and the object of
Lord Devlins opinion in Rookes v. Barnard was to enable them to have it.
Speaking for myself, and whatever view I formed of the categories, I would find
it impossible to return to the chaos which is euphemistically referred to by
Phillimore L.J. [1971] 2 Q.B. 354, 399 as the law as it was before Rookes
v. Barnard. Before I
examine the actual decision in Rookes v. Barnard I would now propose to make two
sets of observations of a general character. The first relates to the context
in which damages must be awarded, the second to the terminology to be used in
particular classes of case. The
subjective element in damages Of all
the various remedies available at common law, damages are the remedy of most
general application at the present day, and they remain the prime remedy in
actions for breach of contract and tort. They have been defined as
the pecuniary compensation obtainable by success in an action for a
wrong which is either a tort or a breach of contract. They must
normally be expressed in a single sum to take account of all the factors
applicable to each cause of action and must of course be expressed in English
currency: Mayne and MacGregor on Damages, 12th ed. (1961), para. 1. In almost
all actions for breach of contract, and in many actions for tort, the principle
of restitutio in integrum is an adequate and fairly easy guide to the
estimation of damage, because the damage suffered can be estimated by relation
to some material loss. It is true that where loss includes a pre-estimate of
future losses, or an estimate of past losses which cannot in the nature of
things be exactly computed, some subjective element must enter in. But the
estimate is in things commensurable with one another, and convertible at least
in principle to the English currency in which all sums of damages must
ultimately be expressed. In many
torts, however, the subjective element is more difficult. The pain and
suffering endured, and the future loss of amenity, in a personal injuries case
are not in the nature of things convertible into legal tender. The difficulties
arising in the paraplegic cases, or, before Benham v. Gambling [1941] A.C. 157, in estimating
the damages for loss of expectation of life in a person who died
instantaneously, are only examples of the intrinsically impossible task set
judges or juries in such matters. Clearly the £50,000 award upheld in
Morey v. Woodfield (No. 2) (Note) [1964] 1 W.L.R. 16 could never compensate the
victim of such an accident. Nor, so [*1071]
far as I can judge, is there any purely rational test by which a judge can
calculate what sum, greater or smaller, is appropriate. What is surprising is
not that there is difference of opinion about such matters, but that in most
cases professional opinion gravitates so closely to a conventional scale.
Nevertheless in all actions in which damages, purely compensatory in character,
are awarded for suffering, from the purely pecuniary point of view the
plaintiff may be better off. The principle of restitutio in integrum, which
compels the use of money as its sole instrument for restoring the status quo,
necessarily involves a factor larger than any pecuniary loss. In
actions of defamation and in any other actions where damages for loss of
reputation are involved. the principle of restitutio in integrum has
necessarily an even more highly subjective element. Such actions involve a
money award which may put the plaintiff in a purely financial sense in a much
stronger position than he was before the wrong. Not merely can he recover the
estimated sum of his past and future losses, but, in case the libel, driven
underground, emerges from its lurking place at some future date, he must be
able to point to a sum awarded by a jury sufficient to convince a bystander of
the baselessness of the charge. As Windeyer J. well said in Uren v. John
Fairfax & Sons Pty. Ltd., 117 C.L.R. 115, 150: It seems to me that, properly speaking, a man
defamed does not get compensation for his damaged reputation. He gets damages
because he was injured in his reputation, that is simply because he was
publicly defamed. For this reason, compensation by damages operates in two ways
as a vindication of the plaintiff to the public and as consolation to
him for a wrong done. Compensation is here a solatium rather than a monetary
recompense for harm measurable in money. This is
why it is not necessarily fair to compare awards of damages in this field with
damages for personal injuries. Quite obviously, the award must include factors
for injury to the feelings, the anxiety and uncertainty undergone in the
litigation, the absence of apology, or the reaffirmation of the truth of the
matters complained of, or the malice of the defendant. The bad conduct of the
plaintiff himself may also enter into the matter, where he has provoked the
libel, or where perhaps he has libelled the defendant in reply. What is awarded
is thus a figure which cannot be arrived at by any purely objective
computation. This is what is meant when the damages in defamation are described
as being at large. In a sense, too, these damages are of
their nature punitive or exemplary in the loose sense in which the terms were
used before 1964, because they inflict an added burden on the defendant
proportionate to his conduct, just as they can be reduced if the defendant has
behaved well as for instance by a handsome apology or the
plaintiff badly, as for instance by provoking the defendant, or defaming him in
return. In all such cases it must be appropriate to say with Lord Esher M.R. in
Praed v. Graham,
24 Q.B.D. 53, 55: ... in actions of libel ... the jury in
assessing damages are entitled to look at the whole conduct of the
defendant (I would personally add and of the
plaintiff) from the time the libel was published down to
the time they give their verdict. They may consider what [*1072] his conduct has been before action,
after action, and in court during the trial. It is this
too which explains the almost indiscriminate use of at
large, aggravated, exemplary
and punitive before Rookes v. Barnard. To quote again from Professor
McCormicks work, it was originally only in America that the
distinction between aggravated damages (which take into
account the defendants bad conduct for compensating the
plaintiffs injured feelings) and punitive or
exemplary damage was really drawn. My own view is that in
no English case, and perhaps even in no statute, where the word
exemplary or punitive or
aggravated occurs before 1964 can one be absolutely sure
that there is no element of confusion between the two elements in damages. It
was not until Lord Devlins speech in Rookes v. Barnard that the expressions
aggravated, on the one hand, and
punitive or exemplary, on the other,
acquired separate and mutually exclusive meanings as terms of art in English
law. The next
point to notice is that it has always been a principle of English law that the
award of damages when awarded must be a single lump sum in respect of each
separate cause of action. Of course, where part of the damage can be precisely
calculated, it is possible to isolate part of it in the same cause of action.
It is also possible and desirable to isolate different sums of damages
receivable in respect of different torts, as was done here in respect of the proof
copies. But I must say I view with some distrust the arbitrary subdivision of
different elements of general damages for the same tort as was done in Loudon
v. Ryder [1953] 2
Q.B. 202, and even, subject to what I say later, what was expressly approved by
Lord Devlin in Rookes v. Barnard [1964] A.C. 1129, 1228 for the laudable purpose of
avoiding a new trial. In cases where the award of general damages contains a
subjective element, I do not believe it is desirable or even possible simply to
add separate sums together for different parts of the subjective element,
especially where, as was done by agreement in this case, the subjective element
relates under different heads to the same factor, in this case the bad conduct
of the defendant. I would think with Lord Atkin in Ley v. Hamilton, 153 L.T. 384, 386: The
punitive element is not something which is or can
(italics mine) be added to some known factor which is
non-punitive, or in the words of Windeyer J. in Uren v. Fairfax
& Sons Pty. Ltd.,
117 C.L.R. 118, 150: The variety of the matters which, it has been
held, may be considered in assessing damages for defamation must in many cases
mean that the amount of a verdict is the product of a mixture of
inextricableconsiderations. (Italics again mine.) In other
words the whole process of assessing damages where they are at
large is essentially a matter of impression and not addition. When
exemplary damages are involved, and even though, in theory at least, it may be
possible to winnow out the purely punitive element, the dangers of double
counting by a jury or a judge are so great that, even to avoid a new trial, I
would have thought the dangers usually outweighed the advantages. Indeed,
though it must be wholly illegitimate to speculate in such a matter, the
thought crossed my mind more than once during the hearing that it may even have
happened in this case. [*1073] Terminology This
brings me to the question of terminology. It has been more than once pointed
out the language of damages is more than usually confused. For instance, the
term special damage is used in more than one sense to
denominate actual past losses precisely calculated (as in a personal injuries
action), or material damage actually suffered as in
describing the factor necessary to give rise to the cause of action in cases,
including cases of slander, actionable only on proof of special
damage. If it is not too deeply embedded in our legal language, I
would like to see special damage dropped as a term of art
in its latter sense and some phrase like material loss
substituted. But a similar ambiguity occurs in actions of defamation, the
expressions at large, punitive,
aggravated, re-tributory,
vindictive and exemplary having been
used, as I have pointed out, in inextricable confusion. In my
view it is desirable to drop the use of the phrase vindictive
damages altogether, despite its use by the county court judge in Williams v.
Settle [1960] 1
W.L.R. 1072. Even when a purely punitive element is involved, vindictiveness is
not a good motive for awarding punishment. In awarding
aggravated damages the natural indignation of the court at
the injury inflicted on the plaintiff is a perfectly legitimate motive in
making a generous rather than a more moderate award to provide an adequate
solatium. But that is because the injury to the plaintiff is actually greater
and, as the result of the conduct exciting the indignation, demands a more
generous solatium. Likewise
the use of retributory is objectionable because it is
ambiguous. It can be used to cover both aggravated damages to compensate the
plaintiff and punitive or exemplary damages purely to punish the defendant or
hold him up as an example. As
between punitive or exemplary, one
should, I would suppose, choose one to the exclusion of the other, since it is
never wise to use two quite interchangeable terms to denote the same thing.
Speaking for myself, I prefer exemplary, not because
punitive is necessarily inaccurate, but
exemplary better expresses the policy of the law as
expressed in the cases. It is intended to teach the defendant and others that
tort does not pay by demonstrating what consequences the
law inflicts rather than simply to make the defendant suffer an extra penalty
for what he has done, although that does, of course, precisely describe its
effect. The
expression at large should be used in general to cover all
cases where awards of damages may include elements for loss of reputation,
injured feelings, bad or good conduct by either party, or punishment, and where
in consequence no precise limit can be set in extent. It would be convenient
if, as the appellants counsel did at the hearing. it could be
extended to include damages for pain and suffering or loss of amenity. Lord
Devlin uses the term in this sense in Rookes v. Barnard [1964] A.C. 1129, 1221, when he
defines the phrase as meaning all cases where the award is not
limited to the pecuniary loss that can be specifically proved. But I
suspect that he was there guilty of a neologism. If I am wrong, it is a
convenient use and should be repeated. Finally,
it is worth pointing out, though I doubt if a change of terminology is
desirable or necessary, that there is danger in hypostatising [*1074] compensatory,
punitive, exemplary or
aggravated damages at all. The epithets are all elements or
considerations which may, but with the exception of the first need not, be
taken into account in assessing a single sum. They are not separate heads to be
added mathematically to one another. Analysis
of Rookes v. Barnard This
being said, it is necessary to analyse the decision in Rookes v. Barnard, a case, it must be remembered,
of intimidation and not libel. The only actual decision on damages must be
looked for on pp. 1232-1233 where Lord Devlin says: I doubt whether the facts disclosed in the
summing-up show even a case for aggravated damages; a different impression may
be obtained when the facts are fully displayed upon a new trial. At present
there seems to be no evidence that the respondents were motivated by
malevolence or spite against the appellant. They wronged him not primarily to
hurt him but so as to achieve their own ends. If that had not been their
dominating motive, then what they did would not have been done in furtherance
of a trade dispute and the whole case has been fought on the basis that it was.
It is said that they persisted in believing that their closed shop position was
endangered by the appellants conduct even when their official leaders
told them that it was not. Be it so; pig-headedness will not do. Again, in so
far as disclosed in the summing-up there was no evidence of offensive conduct
or of arrogance or insolence. It was, I think, suggested that some impolite
observations were made about the appellant, but that is not enough; in a
dispute of this sort feelings run high and more than hard words are needed for
aggravated damages. Mr. Silkin relied strongly on the flagrant breach of
contract with B.O.A.C. and the respondents open disregard of their
pledges and their lack of consideration. But this was not conduct that affected
the appellant. He was no more distressed or humiliated by it than any of
B.O.A.C.s passengers whose convenience, it might be said, and
interests were brushed aside by the respondents in their determination to
secure their object. Although,
as will be seen, I prefer much of what Lord Devlin said on the subject of
exemplary damages to what has been said by his subsequent critics, and propose
to follow it, the decision in Rookes v. Barnard must be viewed in the light of
these conclusions. It is not verbally inspired. But it is a careful and
valuable decision not lightly to be set aside. The
passages in the report which have given rise to criticism and discussion go
from p. 1220 to the top of p. 1231 of the Law Report and can be divided
conveniently into the following parts. The first
part consists in exposition of the authorities and principles which is contained
in pp. 1220-1225 where Lord Devlin begins to draw his conclusions. These
conclusions, which form the second portion of his opinion, include the three
alleged categories (pp. 1225-1227), the three
considerations (pp. 1227-1230) and finally pp. 1230-1231
the commentary and exposition of [*1075]
the consequences of what he has said and these occupy the rest of the passage
under discussion. Was the
decision per incuriam? Now, I
think I must protest at the outset at the theory that Lord Devlin (or those
members of the House who agreed with him) was speaking per
incuriam. I have already dealt with the argument that his conclusions
did not follow the actual submissions of counsel on either side. Lord
Devlin was, of course, perfectly well aware that, in drawing these conclusions
from the authorities, he was making new law in the sense in which new law is
always made when an important new precedent is established. Thus, he said, at
p. 1226: I am well aware that what I am about to say
will, if accepted, impose limits not hitherto expressed on such awards and that
there is powerful, though not compelling, authority for allowing them a wider
range. I shall not, therefore, conclude what I have to say on the general principles
of law without returning to the authorities and making it clear to what extent
I have rejected the guidance they may be said to afford. But a
judge is always entitled to do this when the exact limits, rationale, and the
extent of a principle is being discussed, and when those limits, rationale, and
extent have never been authoritatively defined. Nor can
it be said fairly that he had ignored Ley v. Hamilton, 153 L.T. 384. In fact he quoted
from it at length and treated it, making allowance for the confusion in the
legal terminology at the time to which I have already drawn attention, as a
case of aggravated damages. I think he was right in so
doing; although I also think Salmon L.J. was almost certainly right in thinking
that the inverted commas in which Lord Atkin puts punitive
are not a guide to its meaning. The word is in inverted commas for the same
reason that real in the earlier passage is in inverted
commas. They are quotation marks and Lord Atkin was quoting the actual words in
the judgment of Maugham L.J. which he was criticising. It is a
fairer criticism of Lord Devlin to say that he did not mention E. Hulton
& Co. v. Jones
[1910] A.C. 20. Both Mr. Hewart in argument in that case and Lord Loreburn L.C.
in his speech, at p. 24, which may have been extempore, reflect a view of the
law of damages for libel apparently at variance with the law as Lord Devlin has
now declared it to be. But, as I shall show, the difference is more apparent
than real. It is difficult to square either Mr. Hewarts argument or
the passage of Lord Loreburn L.C.s speech with the explicit admission
made in the Court of Appeal and repeated in the facts stated on p. 20 of the
report that the use of the name Artemus Jones by the editor
and author was innocent, and it is on this basis that the case is normally
cited as an authority. Judging the use made of the case in the Court of Appeal
by their own criteria of Lord Devlin, the case is certainly not a binding authority
on the law of exemplary damages. It was never argued as such, although the
observations of Lord Loreburn L.C. can be fairly used as testimony, and even as
persuasive authority, for the state of legal thinking at the time. In law,
however, if Lord Devlin be right, the law of exemplary damages was still
evolving, [*1076] and E. Hulton
& Co. v. Jones
made no pretence at altering or defining it, nor did either counsel in the case
argue the case in terms which raised the question in its present form. Did Rookes
v. Barnard extend
exemplary damages to fresh torts? Having
rejected the theory that Lord Devlins speech can be pushed aside as
having been delivered per incuriam, I hope I may now equally dispose of another
misconception. I do not think that he was under the impression either that he
had completely rationalised the law of exemplary damages, nor by listing the
categories was he intending, I would think, to add to the
number of torts for which exemplary damages can be awarded. Thus I disagree
with the dictum of Widgery L.J. in Mafo v. Adams [1970] 1 Q.B. 548, 558 (which,
for this purpose, can be treated as an action for deceit) when he said: As I understand Lord Devlins speech,
the circumstances in which exemplary damages may be obtained have been
drastically reduced, but the range of offences in respect of which they may be
granted has been increased, and I see no reason since Rookes v. Barnard [1964] A.C. 1129 why, when
considering a claim for exemplary damages, one should regard the nature of the
tort as excluding the claim. This
would be a perfectly logical inference if Lord Devlin imagined that he was
substituting a completely rational code by enumerating the categories and
stating the considerations. It is true, of course, that actions for deceit
could well come within the purview of the second category. But I can see no
reason for thinking that Lord Devlin intended to extend the category to deceit,
and counsel on both sides before us were constrained to say that, though it may
be paradoxical, they were unable to find a single case where either exemplary
or aggravated damages had been awarded for deceit, despite the fact that
contumelious, outrageous, oppressive, or dishonest conduct on the part of the
defendant is almost inherently associated with it. The explanation may lie in
the close connection that the action has always had with breach of contract:
see the discussion in Mayne and MacGregor, chapter 41, especially at para. 968. Where
solatium is enough The true
explanation of Rookes v. Barnard is to be found in the fact that, where damages for loss
of reputation are concerned, or where a simple outrage to the individual or to
property is concerned, aggravated damages in the sense I have explained can, and
should in every case lying outside the categories, take care of the exemplary
element, and the jury should neither be encouraged nor allowed to look beyond
as generous a solatium as is required for the injury simply in order to give
effect to feelings of indignation. It is not that the exemplary element is
excluded in such cases. It is precisely because in the nature of things it is,
and should be, included in every such case that the jury should neither be
encouraged nor allowed to look for it outside the solatium and then to add to
the sum awarded another sum by way of penalty additional to the solatium. To do
so would be to inflict a double penalty for the same offence. The
surprising thing about Rookes v. Barnard is not that Lord Devlin [*1077] restricted the award of exemplary
damages viewed as an addition to or substitution for damages by way of solatium
to the three so-called categories, but that he allowed the three so-called
categories to exist by way of exception to the general rule. That he did this
is due at least in part to the fact that he felt himself bound by authority to
do so, but partly also because he thought that there were cases where, over and
above the figure awarded for loss of reputation, for injured feelings, for
outraged morality, and to enable a plaintiff to protect himself against future
calumny or outrage of a similar kind, an additional sum was needed to vindicate
the strength of the law and act as a supplement to its strictly penal
provisions (cf. what he says at pp. 1226, 1230 of the report). Is Rookes
v. Barnard
unworkable? I confess
I am quite unable to see why such a view of the matter is
unworkable. As I have already pointed out, it has been
worked in fact for nearly eight years. On the contrary, by insisting on a
single sum being awarded for outrageous behavior in nearly every case of tort,
and allowing the jury full vent to their legitimate feelings within the
proportions set by the injury involved, it seems to me that judge and jury are
set an inherently less difficult task than if they were told first to take into
account the aggravating factors, and then to impose an additional
fine for the size of which they have neither the
qualifications nor any measure by which they can limit their discretion,
particularly since neither counsel nor the judge can mention particular figures
which can have any relevance to the actual case. The difficulty consists, not
in working the system of aggravated and purely compensatory damages, where they
apply, as they do in almost every case of contumelious conduct under Lord
Devlins opinion, but in working a system of punitive damages
alongside the system of aggravated and compensatory damage. This difficulty
exists whether Lord Devlins limitation to the categories be right or
wrong and, if it were wrong, would exist in every case, and not only in a small
minority of cases. The difficulty resides in the fact that the thinking
underlying the two systems is as incompatible as oil and vinegar, the one based
on what the plaintiff ought to receive, the other based on what 12 reasonable,
but otherwise uninstructed, men and women think the defendant ought to pay. The
meaning of the categories As
regards the meaning of the particular categories, I have come to the conclusion
that what Lord Devlin said was never intended to be treated as if his words
were verbally inspired, and much of the criticism of them which has succeeded
reports of the case has been based on interpretations which are false to the
whole context and unduly literal even when taken in isolation from it. The only
category exhaustively discussed before us was the second, since the first could
obviously have no application to the instant case. But I desire to say of the
first that I would be surprised if it included only servants of the Government
in the strict sense of the word. It would, in my view, obviously apply to the
police, despite Attorney-General for New South Wales v. Perpetual Trustee
Co. Ltd. [1955]
A.C. 457, and almost [*107\8] as certainly
to local and other officials exercising improperly rights of search or arrest
without warrant, and it may be that in the future it will be held to include
other abuses of power without warrant by persons purporting to exercise legal
authority. What it will not include is the simple bully, not because the bully
ought not to be punished in damages, for he manifestly ought, but because an
adequate award of compensatory damages by way of solatium will necessarily have
punished him. I am not prepared to say without further consideration that a
private individual misusing legal powers of private prosecution or arrest as in
Leith v. Pope
(1779) 2 Wm.Bl. 1327, where the defendant had the plaintiff arrested and tried
on a capital charge, might not at some future date be assimilated into the
first category. I am not prepared to make an exhaustive list of the emanations
of government which might or might not be included. But I see no reason to
extend it beyond this field, to simple outrage, malice or contumelious
behavior. In such cases a properly directed jury will not find it necessary to
differentiate between what the plaintiff ought to receive and what the
defendant ought to pay, since the former will always include the latter to the
extent necessary to vindicate the strength of the law. When one
comes to the second category, we reach a field which was more exhaustively
discussed in the case before us. It soon became apparent that a broad rather
than a narrow interpretation of Lord Devlins words was absolutely
essential, and that attempts to narrow the second category by a quotation out
of context of one sentence from the passage wherein it is defined simply will
not do. Lord Devlin founded his second category on a sequence of cases
beginning with Bell v. Midland Railway Co. (1861) 10 C.B.N.S. 287, and on the judgment of
Maule J. in Williams v. Currie (1845) 1 C.B. 841, 848 and the dictum of Martin B. in Crouch
v. Great Northern Railway (1856) 11 Exch. 742, 759. None of these were examples of precise calculation
of the balance sheet type. Then he said, at p. 1227: It (that is the motive of making a
profit) is a factor also that is taken into account in damages for
libel; one man should not be allowed to sell another mans reputation
for profit. Where a defendant with a cynical disregard for a
plaintiffs rights has calculated that the money to be made out of his
wrongdoing will probably exceed the damages at risk, it is necessary for the
law to show that it cannot be broken with impunity. This category is not
cantoned to moneymaking in the strict sense. It extends to cases in which the
defendant is seeking to gain at the expense of the plaintiff some object
perhaps some property which he covets which either he could
not obtain at all or not obtain except at a price greater than he wants to put
down. Exemplary damages can properly be awarded whenever it is necessary to
teach a wrongdoer that tort does not pay. (Italics mine.) Even a
casual reading of the above passage shows that the sentence: Where a
defendant with a cynical disregard for a plaintiffs rights has
calculated that the money to be made out of his wrongdoing will probably exceed
the damages at risk, it is necessary for the law to show that it cannot be
broken with impunity is not intended to be exhaustive but
illustrative, and is not intended to be limited to the kind of mathematical
calculations [*1079] to be found on
a balance sheet. The sentence must be read in its context. The context occurs
immediately after the sentence: one man should not be allowed to sell
another mans reputation for profit, where the word
calculation does not occur. The context also includes the
final sentence: Exemplary damages can properly be awarded whenever it
is necessary to teach a wrongdoer that tort does not pay. The whole
passage must be read sensibly as a whole, together with the authorities on
which it is based. It is
true, of course, as was well pointed out by Widgery J. in Manson v.
Associated Newspapers Ltd. [1965] 1 W.L.R. 1038, 1045, that the mere fact that a tort, and
particularly a libel, is committed in the course of a business carried on for
profit is not sufficient to bring a case within the second category. Nearly all
newspapers, and most books, are published for profit. What is necessary in
addition is (i) knowledge that what is proposed to be done is against the law
or a reckless disregard whether what is proposed to be done is illegal or legal,
and (ii) a decision to carry on doing it because the prospects of material
advantage outweigh the prospects of material loss. It is not necessary that the
defendant calculates that the plaintiffs damages if he sues to
judgment will be smaller than the defendants profit. This is simply
one example of the principle. The defendant may calculate that the plaintiff
will not sue at all because he has not the money (I suppose the plaintiff in a
contested libel action like the present must be prepared nowadays to put at
least £30,000 at some risk), or because he may be physically or
otherwise intimidated. What is necessary is that the tortuous act must be done
with guilty knowledge for the motive that the chances of economic advantage outweigh
the chances of economic, or perhaps physical, penalty. At this
stage one must examine some of the counter arguments which found favour in the
Court of Appeal. How, it may be asked, about the late Mr. Rachman, who is
alleged to have used hired bullies to intimidate statutory tenants by violence
or threats of violence into giving vacant possession of their residences and so
placing a valuable asset in the hands of the landlord? My answer must be that
if this is not a cynical calculation of profit and cold-blooded disregard of a
plaintiffs rights, I do not know what is. It is also argued that the
second category does not take care of the case of a man who pursues a potential
plaintiff to ruin out of sheer hatred and malice. The answer is that it does
not do so because this is already taken care of in the full compensation or
solatium for the injury involved in which the jury can give full rein to their
feeling of legitimate indignation without going outside the bounds of
compensatory damages in the sense in which I have explained the phrase, that
is, damages of sufficient size to enable the plaintiff to point to the size of
the award to indicate the baselessness of the false charge, and damages for the
outrage inflicted in exact proportion as it was unprovoked, unatoned for, or
malicious. I would have thought the second category was ample to cover any form
of injury committed within the scope of those torts for which aggravated and
exemplary damages may be awarded where the motive was material advantage. Mafo
v. Adams [1970] 1
Q.B. 548 is not really an authority to the contrary, although I would have
thought that the damages there awarded for inconvenience, breach of covenant,
and loss of a regulated tenancy were perhaps at present-day values too small
for the wrong committed. What [*1080]
was at issue in Mafo v. Adams was the award of exemplary damages in an action for
deceit (see Sachs L.J., at p. 555) and this, in the event, was never decided.
What was decided in that case was that the plaintiff had not discharged the
onus of proof that the defendants motives were such as to bring the
case within the second category. This is clear from the fact that both Sachs
L.J. and Widgery L.J. based their judgments on a passage from the decision of
the county court judge, where he said: The defendants
reasons for his actions are obscure,: see per Sachs L.J., at p. 556,
and per Widgery L.J., at p. 559. I am far from saying that, in so far as it
could have been shown that the defendant was actuated by hope of gain, and if
the action had been one of trespass, exemplary damages could not have been
awarded under the second category, and even though in the absence of authority
I am of opinion that exemplary damages cannot be awarded in an action for deceit,
I cannot claim that that matter has been finally determined. The main
criticisms of Lord Devlins speech are thus shown to have been
unfounded. That he went beyond the existing law he had no doubt, and nor have
I. But, as I have shown, he was entitled to do so. It may very well be that, in
deciding in favour of the two exceptional categories, he was making an
unnecessary concession to tradition. But he made the concession after a careful
analysis of the authorities, and, speaking for myself, and given the cautious
approach indicated in Lord Gardiner L.C.s practice declaration [1966]
1 W.L.R. 1234 and by a majority of this House in Reg. v. National Insurance
Commissioner, Ex parte Hudson [1972] A.C. 944, I do not think there is any reason for
disturbing them. I regard the Australian cases, and in particular Uren v.
John Fairfax & Sons Pty. Ltd., 117 C.L.R. 118, as deciding no more than that on the
particular facts of that case the award of exemplary damages was not
acceptable. In so far as they claim to establish that exemplary damages can be
awarded for any contumelious disregard of the plaintiffs rights I may
not, of course, comment so far as regards the law of Australia, but, so far as
regards the law of England, I would say that an adequate award of compensatory
damages in such a case must of necessity include, and perhaps more than
include, any punitive or exemplary element. The proposition, as a proposition,
would have been perfectly acceptable so long as the looser terminology prevalent
before Rookes v. Barnard was in use. So far as regards the more strict terminology now to be
employed, the proposition is not to be treated as acceptable in the English
courts. Before
turning to the so-called considerations I desire to say a
word concerning the decisions in Williams v. Settle [1960] 1 W.L.R. 1072 and Loudon
v. Ryder [1953] 2
Q.B. 202, upon which Lord Devlin also commented. Williams v. Settle was a case under section 17 (3)
of the Copyright Act 1956. I agree with Lord Devlin that it is for
consideration in the light of subsequent cases whether that section, which does
not use the phrase exemplary damages, does in fact give a
right to damages which are exemplary in the narrower sense used since Rookes
v. Barnard [1964]
A.C. 1129. If it does, the case should be regarded as a second category case,
since the defendants motive was profit. If it does not, and if it is
to be regarded as still authoritative, Williams v. Settle can only be regarded as an
extreme example of aggravated damages, though the language of the [*1081] county court judge was so strong as to
lead me to think that I would not myself have been prepared to make so large an
award. Loudon
v. Ryder [1953] 2
Q.B. 202 is the earliest instance which I have been able to find where a split
award was made of exemplary and compensatory damages for the same tort, and the
split was made in circumstances which are not altogether plain from the report,
after an award of a lump sum had been announced. What would have happened if
Devlin J. (as he was) had summed up to the jury in favour of a generous award
of aggravated damages on the lines of his later speech in Rookes v. Barnard is, of course, a question which
no one can possibly answer. The answer might well have been, substituting
trespass for defamation, what Windeyer
J. said in Uren v. John Fairfax & Sons Pty. Ltd., 117 C.L.R. 118, 152: Telling the jury in a defamation action that
compensation is to be measured having regard to aggravating circumstances the
result of the defendants conduct might not result in a verdict
different from that which they would return if they were told that because of
that conduct they could give damages by way of example. What is
certain is that the summing-up by Devlin J. in that case could not, as Lord
Devlin himself surmised, now survive the analysis by Lord Devlin in Rookes
v. Barnard of the
theoretical basis of exemplary damages in the sense in which the term should
now be employed. The
considerations I turn
now to Lord Devlins three considerations. It is
worth pointing out that neither the Court of Appeal nor any of the counsel who
appeared before us attacked these as such. Nor, so far as I am aware, have
these been attacked in the cases in which Commonwealth judges have felt
constrained to criticise Rookes v. Barnard [1964] A.C. 1129. This alone would be a good
reason against a simple return to the status quo ante proposed by the Court of
Appeal, because the first and second considerations coupled
with the passage from which I have already quoted on p. 1225 are themselves,
and quite independently of the categories, an important,
and I think original, contribution to the law on exemplary damages. Whilst, as
I have indicated, I cannot myself follow what Lord Devlin says on the second
category so far as regards the right of appellate courts to interfere with jury
awards on principles different from the traditional nor, I think, with the
proposal that Benham v. Gambling [1941] A.C. 157 offers a precedent for arbitrary limits
imposed by the judiciary in defamation cases, I regard it as extremely
important that, for the future, judges should make sure in their direction to
juries that the jury is fully aware of the danger of an excessive award. A
judge should first rule whether evidence exists which entitles a jury to find
facts bringing a case within the relevant categories, and, if it does not, the
question of exemplary damages should be withdrawn from the jurys
consideration. Even if it is not withdrawn from the jury, the judges
task is not complete. He should remind the jury: (i) that the burden of proof
rests on the plaintiff to establish the facts necessary to bring the case
within the categories. (ii) That the mere fact that the case falls within the
[*1082] categories does not of
itself entitle the jury to award damages purely exemplary in character. They
can and should award nothing unless (iii) they are satisfied that the punitive
or exemplary element is not sufficiently met within the figure which they have
arrived at for the plaintiffs solatium in the sense I have explained
and (iv) that, in assessing the total sum which the defendant should pay, the total
figure awarded should be in substitution for and not in addition to the smaller
figure which would have been treated as adequate solatium, that is to say,
should be a round sum larger than the latter and satisfying the jurys
idea of what the defendant ought to pay. (v) I would also deprecate, as did
Lord Atkin in Ley v. Hamilton, 153 L.T. 384 the use of the word
fine in connection with the punitive or exemplary element
in damages, where it is appropriate. Damages remain a civil, not a criminal,
remedy, even where an exemplary award is appropriate, and juries should not be
encouraged to lose sight of the fact that in making such an award they are
putting money into a plaintiffs pocket, and not contributing to the
rates, or to the revenues of central government. If this
be correct, the agreed list of questions submitted to the jury in the present
case is not the ideal procedure for ensuring that the jury keep their verdict
within bounds. They should normally be asked to award a single sum whether as
solatium or as exemplary damages. If, in order to avoid a second trial, they
are asked a second question, they should be asked, in the event of their
awarding exemplary damages, what smaller sum they would have awarded if they
had confined themselves to solatium in the sense explained. It
follows from what I have said that I am not prepared to follow the Court of
Appeal in its criticisms of Rookes v. Barnard, which I regard as having imposed
valuable limits on the doctrine of exemplary damages as they had hitherto been
understood in English law and clarified important questions which had
previously been undiscussed or left confused. From one point of view, there is
much to be said for the interpretation put upon Lord Devlins speech
by Windeyer J. in Uren v. John Fairfax & Son Pty. Ltd., 117 C.L.R. 118, 152 immediately
before the passage I have just quoted: What the House of Lords has now done is, as I
read what was said, to produce a more distinct terminology. Limiting the scope
of terms that often were not distinguished in application makes possible an
apparently firm distinction between aggravated compensatory damages and
exemplary or punitive damages. But it is
not to be inferred from this that the ruling in Rookes v. Barnard is a pure question of semantics.
It may well be true that in most individual cases the precise terminology in
which the question is asked of the jury may not make much difference to the
amount of the award. Both Windeyer J. in the passage just cited and Lord Devlin
at p. 1230 were evidently of this view. But the following positive advantages
can be gained from adhering to the rules he laid down, if properly interpreted:
(1) The danger of double counting, of adding a pure fine to
what has already been awarded as solatium without regarding the deterrent or
punitive effect of the latter, has been eliminated, or at least reduced to a
minimum. (2) In all cases where the categories do not apply, the jury [*1083] must be told to confine the punitive or
deterrent element in their thinking within the limits of a fair solatium. In
other words, to borrow the language, though not the sentiments, expressed in Forsdike
v. Stone (1868)
L.R. 3 C.P. 607, 611, the jury must be told to consider only what the plaintiff
should receive after giving full allowance to the need to re-establish his
reputation and for the outrage inflicted upon him, and not what the defendant
should pay independently of this consideration. (3) In cases where the
categories do apply, juries can be given directions a little more informative
and regulatory than was the case up to and including the new analysis. Rookes
v. Barnard has
not perhaps proved quite the definitive statement of the law which was hoped
when it was decided. This is often the case. I remember with suitably mixed
feelings of filial piety and inherited caution that in his judgment in Robert
Addie & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358 my father
believed he was putting a final end to doubts about the limits of
occupiers liability to trespassers, licensees and invitees. But the
way forward lies through a considered precedent and not backwards from it. I
would hope very much that, in the light of observations made on Rookes v.
Barnard in this
case, Commonwealth courts might see fit to modify some of their criticisms of
it. I do not know how far it can be of value in the United States of America
where it seems to me that the decisions of the Supreme Court have been
influenced greatly by the terms of the First Amendment to the Constitution, and
by the unsatisfactory rules prevalent in American courts as to the recovery of
costs. However that may be, we cannot depart from Rookes v. Barnard here. It was decided neither per
incuriam nor ultra vires this House; we could only depart from it by tearing up
the doctrine of precedent, and this was not the object of this House in
assuming the powers adopted by the Practice Statement (Judicial Precedent) [1966] 1 W.L.R. 1234. Lest I
should have been thought to have forgotten it, I would observe that the Court
of Appeal overruled the decision of Lawton J. that a claim for exemplary
damages should be pleaded. I am content to accept their view on the basis of
the present practice. But in the light of the decision of this House in the
instant case I propose to refer to the Rule Committee the question whether in
the light of Rookes v. Barnard and the present decision the present practice should not
be altered. There is much to be said for the view that a defendant against whom
a claim of this kind is made ought not to be taken by surprise. My Lords,
it follows from what I have said in my opinion this appeal should be dismissed
and that costs should follow the event. LORD
REID. My Lords,
the appellants published a book, The Destruction of Convoy
PQ17 which according to their advertisement on the dust jacket was
the result of five intensive years of meticulous research by the author. It
contained many statements about the conduct of the respondent who was the naval
officer in command of the convoy. He sued the appellants and the author for
damages for libel. After a trial which lasted for some 17 days a number of
questions were left to the jury. They found that the words complained of were
defamatory of the respondent and were not true in substance and in fact. They
were [*1084] asked what
compensatory damages they awarded, and they awarded £15,000. Then
they were asked Has the plaintiff proved that he is entitled to
exemplary damages? Their answer was yes against both defendants. Next
they were asked What additional sum should be awarded him by way of
exemplary damages? Their answer was £25,000. So judgment
was entered against both defendants for £40,000. Others of
your Lordships have dealt in detail with these statements and I do not think it
necessary to say more than that in my opinion the jury were well entitled to
find that they conveyed imputations of the utmost gravity against the character
and conduct of the respondent as a naval officer. Indeed the appellants do not
now seek to disturb the award of £15,000 as compensatory
damages. Their contention before your Lordships is twofold: first,
that the jury were not entitled to award any exemplary damages and, secondly,
that the amount awarded under this head was much too great. As no objection was
taken at the time to the form of the question there cannot now be any objection
to the jury having been asked in this case to consider separately compensatory and
exemplary damages. The whole
matter of exemplary damages was dealt with in this House in Rookes v.
Barnard [1964]
A.C. 1129 in a speech by Lord Devlin with which all who sat with him, including
myself, concurred. The Court of Appeal dealing with the present case held that
if they applied the law as laid down in Rookes v. Barnard the appellants appeal
must fail and the jurys verdict must stand. They could have stopped
there, but they chose to go on and attack the decision of this House as bad law.
They were quite entitled to state their views and reasons for reaching that
conclusion but very unfortunately Lord Denning M.R., apparently with the
concurrence of his two colleagues, went on to say [1971] 2 Q.B. 354, 384: This case may, or may not, go on appeal to the
House of Lords. I must say a word, however, for the guidance of judges who will
be trying cases in the meantime. I think the difficulties presented by Rookes
v. Barnard are so
great that the judges should direct the juries in accordance with the law as it
was understood before Rookes v. Barnard. Any attempt to follow Rookes v. Barnard is bound to lead to
confusion. It seems
to me obvious that the Court of Appeal failed to understand Lord
Devlins speech, but, whether they did or not, I would have expected
them to know that they had no power to give any such direction and to realise
the impossible position in which they were seeking to put those judges in
advising or directing them to disregard a decision of this House. That
aberration of the Court of Appeal has made it necessary to reexamine the whole
subject and incidentally has greatly increased the expense to which the parties
to this case have been put. The very
full argument which we have had in this case has not caused me to change the
views which I held when Rookes v. Barnard was decided or to disagree with any of Lord
Devlins main conclusions. But it has convinced me that I and my
colleagues made a mistake in simply concurring with Lord Devlins
speech. With the passage of time I have come more and more firmly to the
conclusion that it is never wise to have only one speech in this House dealing
with an important question of law. [*1085]
My main
reason is that experience has shown that those who have to apply the decision
to other cases and still more those who wish to criticise it seem to find it
difficult to avoid treating sentences and phrases in a single speech as if they
were provisions in an Act of Parliament. They do not seem to realise that it is
not the function of noble and learned Lords or indeed of any judges to frame
definitions or to lay down hard and fast rules. It is their function to
enunciate principles and much that they say is intended to be illustrative or
explanatory and not to be definitive. When there are two or more speeches they
must be read together and then it is generally much easier to see what are the
principles involved and what are merely illustrations of it. I am
bound to say that, in reading the various criticisms of Lord Devlins
speech to which we have been referred, I have been very surprised at the
failure of its critics to realise that it was intended to state principles and
not to lay down rules. But I suppose that those of us who merely concurred with
him ought to have foreseen that this might happen and to have taken steps to
prevent it. So I shall try to repair my omission by stating now in a different
way the principles which I, and I believe also Lord Devlin, had in mind. I do
not think that he would have disagreed with any important part of what I am now
about to say. Damages
for any tort are or ought to be fixed at a sum which will compensate the
plaintiff, so far as money can do it, for all the injury which he has suffered.
Where the injury is material and has been ascertained it is generally possible
to assess damages with some precision. But that is not so where he has been
caused mental distress or when his reputation has been attacked
where, to use the traditional phrase, he has been held up to hatred, ridicule
or contempt. Not only is it impossible to ascertain how far other
peoples minds have been affected, it is almost impossible to equate
the damage to a sum of money. Any one person trying to fix a sum as
compensation will probably find in his mind a wide bracket within which any sum
could be regarded by him as not unreasonable and different people
will come to different conclusions. So in the end there will probably be a wide
gap between the sum which on an objective view could be regarded as the least
and the sum which could be regarded as the most to which the plaintiff is
entitled as compensation. It has
long been recognised that in determining what sum within that bracket should be
awarded, a jury, or other tribunal, is entitled to have regard to the conduct
of the defendant. He may have behaved in a highhanded, malicious, insulting or
oppressive manner in committing the tort or he or his counsel may at the trial
have aggravated the injury by what they there said. That would justify going to
the top of the bracket and awarding as damages the largest sum that could
fairly be regarded as compensation. Frequently
in cases before Rookes v. Barnard, when damages were increased in that way but were still
within the limit of what could properly be regarded as compensation to the
plaintiff, it was said that punitive, vindictive or exemplary damages were
being awarded. As a mere matter of language that was true enough. The defendant
was being punished or an example was being made of him by making him pay more
than he would have had to pay if his conduct had not been outrageous. But the
[*1086] damages though called
punitive were still truly compensatory: the plaintiff was not being given more
than his due. On the
other hand when we came to examine the old cases we found a number which could
not be explained in that way. The sums awarded as damages were more
sometimes much more than could on any view be justified as
compensatory, and courts, perhaps without fully realising what they were doing,
appeared to have permitted damages to be measured not by what the plaintiff was
fairly entitled to receive but by what the defendant ought to be made to pay as
punishment for his outrageous conduct. That
meant that the plaintiff, by being given more than on any view could be
justified as compensation, was being given a pure and undeserved windfall at
the expense of the defendant, and that in so far as the defendant was being
required to pay more than could possibly be regarded as compensation he was
being subjected to pure punishment. I thought
and still think that that is highly anomalous. It is confusing the function of
the civil law which is to compensate with the function of the criminal law
which is to inflict deterrent and punitive penalties. Some objection has been
taken to the use of the word fine to denote the amount by
which punitive or exemplary damages exceed anything justly due to the
plaintiff. In my view the word fine is an entirely accurate
description of that part of any award which goes beyond anything justly due to
the plaintiff and is purely punitive. Those of
us who sat in Rookes v. Barnard thought that the loose and confused use of words like
punitive and exemplary and the failure to recognise the difference between
damages which are compensatory and damages which go beyond that and are purely
punitive had led to serious abuses, so we took what we thought was the best
course open to us to limit those abuses. Theoretically
we might have held that as purely punitive damages had never been sanctioned by
any decision of this House (as to which I shall say more later) there was no
right under English law to award them. But that would have been going beyond
the proper function of this House. There are many well-established doctrines of
the law which have not been the subject of any decision by this House. We
thought we had to recognise that it had become an established custom in certain
classes of case to permit awards of damages which could not be justified as
compensatory, and that that must remain the law. But we thought and I still
think it well within the province of this House to say that that undesirable
anomaly should not be permitted in any class of case where its use was not
covered by authority. In order
to determine the classes of case in which this anomaly had become established
it was of little use to look merely at the words which had been used by judges
because, as I have said, words like punitive and- exemplary were often used with
regard to damages which were truly compensatory. We had to take a broad view of
the whole circumstances. I must
now deal with those parts of Lord Devlins speech which have given
rise to difficulties. He set out two categories of cases which in our opinion
comprised all or virtually all the reported cases in which it was clear that
the court had approved of an award of a larger sum of damages [*1087] than could be justified as
compensatory. Critics appear to have thought that he was inventing something
new. That was not my understanding. We were confronted with an undesirable
anomaly. We could not abolish it. We had to choose between confining it
strictly to classes of cases where it was firmly established, although that
produced an illogical result, or permitting it to be extended so as to produce
a logical result. In my view it is better in such cases to be content with an
illogical result than to allow any extension. It will
be seen that I do not agree with Lord Devlins view that in certain
classes of case exemplary damages serve a useful purpose in vindicating the
strength of the law. That view did not form an essential step in his argument.
Concurrence with the speech of a colleague does not mean acceptance of every
word which he has said. If it did there would be far fewer concurrences than
there are. So I did not regard disagreement on this side issue as preventing me
from giving my concurrence. I think
that the objections to allowing juries to go beyond compensatory damages are
overwhelming. To allow pure punishment in this way contravenes almost every
principle which has been evolved for the protection of offenders. There is no
definition of the offence except that the conduct punished must be oppressive,
high-handed, malicious, wanton or its like terms far too vague to be
admitted to any criminal code worthy of the name. There is no limit to the
punishment except that it must not be unreasonable. The punishment is not
inflicted by a judge who has experience and at least tries not to be influenced
by emotion: it is inflicted by a jury without experience of law or punishment
and often swayed by considerations which every judge would put out of his mind.
And there is no effective appeal against sentence. All that a reviewing court
can do is to quash the jurys decision if it thinks the punishment
awarded is more than any twelve reasonable men could award. The court cannot
substitute its own award. The punishment must then be decided by another jury
and if they too award heavy punishment the court is virtually powerless. It is
no excuse to say that we need not waste sympathy on people who behave
outrageously. Are we wasting sympathy on vicious criminals when we insist on
proper legal safeguards for them? The right to give punitive damages in certain
cases is so firmly embedded in our law that only Parliament can remove it. But
I must say that I am surprised by the enthusiasm of Lord Devlins
critics in supporting this form of palm tree justice. Lord
Devlins first category is set out on p. 1226. He said: The first category is oppressive, arbitrary or
unconstitutional action by the servants of the government. I should not extend
this category I say this with particular reference to the facts of
this case to oppressive action by private corporations or
individuals. This
distinction has been attacked on two grounds: first, that it only includes
Crown servants and excludes others like the police who exercise governmental
functions but are not Crown servants and, secondly, that it is illogical since
both the harm to the plaintiff and the blameworthiness of the defendant may be
at least equally great where the offender is a powerful private individual.
With regard to the first I think that the [*1088]
context shows that the category was never intended to be limited to Crown
servants. The contrast is between the government and
private individuals. Local government is as much government as national
government, and the police and many other persons are exercising governmental
functions. It was unnecessary in Rookes v. Barnard to define the exact limits of the
category. I should certainly read it as extending to all those who by common
law or statute are exercising functions of a governmental character. The
second criticism is I think misconceived. I freely admit that the distinction
is illogical. The real reason for the distinction was, in my view, that the
cases showed that it was firmly established with regard to servants of
the government that damages could be awarded against them
beyond any sum justified as compensation, whereas there was no case except one
that was overruled where damages had been awarded against a private bully or
oppressor to an amount that could not fairly be regarded as compensatory,
giving to that word the meaning which I have already discussed. I thought that
this House was therefore free to say that no more than that was to be awarded
in future. We are
particularly concerned in the present case with the second category. With the
benefit of hindsight I think I can say without disrespect to Lord Devlin that
it is not happily phrased. But I think the meaning is clear enough. An ill
disposed person could not infrequently deliberately commit a tort in contumelious
disregard of anothers rights in order to obtain an advantage which
would outweigh any compensatory damages likely to be obtained by his victim.
Such a case is within this category. But then it is said, suppose he commits
the tort not for gain but simply out of malice, why should he not also be
punished? Again I freely admit there is no logical reason. The reason for
excluding such a case from the category is simply that firmly established
authority required us to accept this category however little we might like it,
but did not require us to go farther. If logic is to be preferred to the
desirability of cutting down the scope for punitive damages to the greatest
extent that will not conflict with established authority then this category
must be widened. But as I have already said I would, logic or no logic, refuse
to extend the right to inflict exemplary damages to any class of case which is
not already clearly covered by authority. On that basis I support this
category. In my
opinion, the conduct of both defendants in this case was such that the jury
were clearly entitled, if properly directed, to hold that it brought them
within the second category. Again, I do not intend to cover ground already
covered by my noble and learned friends. So I say no more than that the jury
were fully entitled to hold that the appellants knew when they committed this
tort that passages in this book were highly defamatory of the respondent and
could not be justified as true and that it could properly be inferred that they
thought that it would pay them to publish the book and risk the consequences of
any action the respondent might take. It matters not whether they thought that
they could escape with moderate damages or that the enormous expense involved
in fighting an action of this kind would prevent the respondent from pressing
his claim. It was
argued that to allow punitive damages in this case would hamper [*1089] other publishers or limit their freedom
to conduct their business because it can always be inferred that publishers
publish any book because they expect to profit from it. But punitive damages
could not be given unless it was proved that they knew that passages in the
book were libellous and could not be justified or at least deliberately shut
their eyes to the truth. I would hope that no publisher would publish in such
circumstances. There is no question of curtailing the freedom of a reputable
publisher. The next
passage in Lord Devlins speech which has caused some difficulty is
what has been called the if, but only if, paragraph on p.
1228. I see no difficulty in it but again I shall set out the substance of it
in my own words. The difference between compensatory and punitive damages is
that in assessing the former the jury or other tribunal must consider how much
the plaintiff ought to receive, whereas in assessing the latter they must
consider how much the defendant ought to pay. It can only cause confusion if
they consider both questions at the same time. The only practical way to
proceed is first to look at the case from the point of view of compensating the
plaintiff. He must not only be compensated for proved actual loss but also for
any injury to his feelings and for having had to suffer insults, indignities
and the like. And where the defendant laws behaved outrageously very full
compensation may be proper for that. So the tribunal will fix in their minds
what sum would be proper as compensatory damages. Then if it has been
determined that the case is a proper one for punitive damages the tribunal must
turn its attention to the defendant and ask itself whether the sum which it has
already fixed as compensatory damages is or is not adequate to serve the second
purpose of punishment or deterrence. If they think that that sum is adequate
for the second purpose as well as for the first they must not add anything to
it. It is sufficient both as compensatory and as punitive damages. But if they
think that sum is insufficient as a punishment then they must add to it enough
to bring it up to a sum sufficient as punishment. The one thing which they must
not do is to fix sums as compensatory and as punitive damages and add them
together. They must realise that the compensatory damages are always part of
the total punishment. It was
argued that the jury were not properly directed by the trial judge on this
matter. I agree with your Lordships that that argument must fail. A
judges direction to a jury is not to be considered in vacuo. It must
be read in light of all the circumstances as they then existed and I cannot
believe that the jury were left in any doubt as to how they must deal with this
matter. Next
there are questions arising from the fact that there were two defendants. When
dealing with compensatory damages the law is quite clear. There was one tort of
which both defendants were guilty. So one sum is fixed as compensation, and
judgment is given for that sum against both defendants, leaving it to the
plaintiff to sue whichever he chooses and then leaving it to the defendant who
has paid to recover a contribution if be can from the other. But when
we come to punitive damages the position is different. Although the tort was
committed by both, only one may have been guilty of the outrageous conduct or,
if two or more are so guilty they may be [*1090]
guilty in different degrees or, owing to one being rich and another poor,
punishment proper for the former may be too heavy for the latter. Unless we
are to abandon all pretence of justice, means must be found to prevent more
being recovered by way of punitive damages from the least guilty than he ought
to pay. We cannot rely on his being able to recover some contribution from the
other. Suppose printer, author and publisher of a libel are all sued. The
printer will probably be guiltless of any outrageous conduct but the others may
deserve punishment beyond compensatory damages. If there has to be one judgment
against all three, then it would be very wrong to allow any element of punitive
damages at all to be included because very likely the printer would have to pay
the whole and the others might not be worth suing for a contribution. The only
logical way to deal with the matter would be first to have a judgment against
all the defendants for the compensatory damages and then to have a separate
judgment against each of the defendants for such additional sum as he should
pay as punitive damages. I would agree that that is impracticable. The fact
that it is impracticable to do full justice appears to me to afford another
illustration of how anomalous and indefensible is the whole doctrine of
punitive damages. But, as I have said before, we must accept it and make the
best we can of it. So, in my
opinion, the jury should be directed that, when they come to consider what if
any addition is to be made to the compensatory damages by way of punitive
damages, they must consider each defendant separately. If any one of the
defendants does not deserve punishment or if the compensatory damages are in
themselves sufficient punishment for any one of the defendants, then they must
not make any addition to the compensatory damages. If each of the defendants
deserves more punishment than is involved in payment of the compensatory
damages then they must determine which deserves the least punishment and only
add to the compensatory damages such additional sum as that defendant ought to
pay by way of punishment. I do not
pretend that that achieves full justice but it is the best we can do without
separate awards against each defendant. It was
argued that here again there was misdirection of the jury because all that was
not made plain to them. But again I agree with your Lordships that in the whole
circumstances we ought not to hold the direction of the learned trial judge to
be inadequate. Again the jury can have been in no doubt as to what was required
of them. There
remains what is perhaps the most dim cult question in this case
whether the additional award of £25,000 as punitive damages is so
excessive that we can interfere. I think it was much too large, but that is not
the test. I would like to be able to hold that the court has more control over
an award of punitive damages than it has over an award of compensatory damages.
As regards the latter it is quite clear that a court can only interfere if
satisfied that no twelve reasonable men could have awarded so large a sum and
the reason for that is plain. The court has no power to substitute its own
assessment for the verdict of a jury. If it interferes it can only send the
matter back to another jury. So before it can interfere it must be well
satisfied that no other jury would award so large a sum. I do not see how this
House could arrogate to itself any wider power with [*1091] regard to punitive damages. We could
not deprive the plaintiff of his right to a new trial so we must adhere to the
established test. Any diminution or abolition of the functions of a jury in
libel cases can only come from Parliament. If this case brings nearer the day
when Parliament does take action I for one shall not be sorry. Whether
or not we can interfere with this award is a matter which is not capable of
much elaboration. In considering how far twelve reasonable men might go, acting
as jurors commonly do act, one has to bear in mind how little guidance the
court is entitled to give them. All they can be told is that they must not
award a sum which is unreasonable. In answer to questions whether anything more
definite could properly be said neither counsel in this case was able to make
any suggestion and I have none to offer. The evidence in this case is such that
the jury could take an extremely unfavorable view of the conduct of both
defendants. I do not say that they ought to have done so, but they were
entitled to do so. And they must have done so. I find it impossible to say that
no jury of reasonable men, inexperienced but doing their best with virtually no
guidance, could reach the sum of £25,000. Or, to put it in another
way, I would feel no confidence that if the matter were submitted to another
jury they must reach a substantially different result. So with considerable
regret I must hold that it would be contrary to our existing law and practice
if this House refused to uphold this verdict. It is
true that in this case the parties agreed that if the verdict for
£25,000 were quashed they would leave it to this House to substitute
another figure. But that agreement cannot justify us in doing other vise than
we would have done if the parties had stood on their legal rights. The obvious
reason for that agreement was a common desire to avoid the enormous expense of
a new trial. This is not the first occasion on which I have felt bound to
express my concern about the undue prolixity and expense of libel actions. I
would not blame any individuals. It may arise from the conduct of a trial
before a jury being more expensive than a trial before a judge. If so that is
an additional argument for taking these cases away from juries. Or it may be
that it suits wealthy publishers of newspapers, books and periodicals that the
cost of fighting a libel action is so great that none but a person with large
financial backing can sue them effectively. Whatever be the reason the costs of
this case have already reached a figure which many laymen would call scandalous.
I think that those in a position to take effective action might take note. Finally,
I must say something about a strange misconception which appears in the
judgments of the Court of Appeal in this case. Somehow they reached the
conclusion that the decision of this House in Rookes v. Barnard was made per incuriam was ultra
vires, and had produced an unworkable position. It must be noted that in at
least three earlier cases the Court of Appeal were able without difficulty or
question to apply that decision: McCarey v. Associated Newspapers, Ltd. (No. 2) [1965] 2 Q.B. 86; Broadway
Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805 and Fielding v. Variety
Incorporated
[1967] 2 Q.B. 841. What has caused their change of mind does not appear but I
must deal with their new view. As regards the present position being
unworkable, of course many difficulties remain in this branch of the law, but
these difficulties are an [*1092]
inheritance from the confusion of the past. I have dealt fairly fully with the
proper interpretation of Rookes v. Barnard [1964] A.C. 1129 and it appears to me that that
decision removes many old difficulties and creates few if any new ones. I need
not deal separately with the novel idea that a decision of this House can be
ultra vires because that charge appears to be consequential on the charge that
this House acted per incuriam in reaching its decision. It is perfectly
legitimate to think and say that we were wrong but how anyone could say we
acted per incuriam in face of the passage on page 1230 I fail to understand. This
charge is really based on what appears to me to be a misreading by the Court of
Appeal of two decisions of this House, E. Hulton & Co. v. Jones [1910] A.C. 20 and Ley v.
Hamilton, 153
L.T. 384. Hultons case has always been regarded as the leading
authority for the proposition that a defamatory description intended to apply
to a fictional person may in fact be a libel on a real person and therefore a
subject for damages. I see nothing in the speeches in this House to indicate
that punitive damages in the modern sense were being considered. It was said
that there was an element of recklessness in the failure of the defendants to
realise that there was a real Artemus Jones and that this justified a rather
high sum of damages but I see nothing to indicate any view that the damages
went beyond anything that could be justified as compensation and could only be
justified as being punitive in the modern sense. Ley v.
Hamilton requires
rather fuller consideration. But again I see nothing to indicate that this
House held that the damages went beyond compensation or that there had been
outrageous conduct justifying a punitive award which went beyond compensation.
The majority in the Court of Appeal certainly held that the £5,000
damages award was punitive in the modern sense. They held that the real damage
was trifling and the rest punishment. Greer L.J. said (1934) 151 L.T. 360, 369
that if Hamilton had been prosecuted for criminal libel it was inconceivable
that he would have been fined £5,000. Maugham L.J. said, at p. 374,
that the damages could not be described as a fair and reasonable compensation
but were in the nature of a fine. In this
House only Lord Atkin delivered a speech. I read it as intended to show that
elements properly included in compensatory damages were far wider than the
majority in the Court of Appeal had thought and that the whole of this
£5,000 was in fact justified as being compensatory. He said, 153 L.T.
384, 386: The
fact is that the criticism with great respect seems based upon an incorrect
view of the assessment of damages for defamation. They are not arrived at as
the Lord Justice seems to assume by determining the real
damage and adding to that a sum by way of vindictive or punitive damages. It is
precisely because the real damage cannot be ascertained and
established that the damages are at large. It is impossible to track the
scandal, to know what quarters the poison may reach: it is impossible to weigh
at all closely the compensation which will recompense a man or a woman for the
insult offered or the pain of a false accusation. No doubt in newspaper libels
juries take into account the vast circulations which are justly claimed in present
[*1093] times. The
punitive element is not something which is or can be added
to some known factor which is non-punitive. In particular it appears to present
no analogy to punishment by fine for the criminal offence of publishing a defamatory
libel. By saying
that compensation for insult or the pain of a false accusation cannot be
weighed at all closely and that there was nothing here analogous to punishment
by fine, he was to my mind making it as clear as words can make it that the
whole of this £5,000 was truly compensatory in character. So I think
that Lord Devlin was perfectly right in saying that there is no decision of
this House which recognises punitive damages in the modern sense of something
which goes beyond compensation. Where the Court of Appeal went wrong was in
failing to realise that in the older cases damages were frequently referred to
as exemplary or punitive although they were in reality compensatory. On the
whole matter I would dismiss this appeal. LORD
MORRIS OF BORTH-Y-GEST. My Lords, at the trial of this action questions arose as to whether
if the plaintiff succeeded, he was entitled to recover exemplary damages in
addition to compensatory damages. The law relating to exemplary damages was
considered in your Lordships House in 1964 and was laid down in the
decision in Rookes v. Barnard [1964] A.C. 1129. That decision bound the learned judge.
It bound the Court of Appeal. It continues to be binding authority in all
courts unless and until it appears to your Lordships to be right to depart from
it. In
presiding at the trial the learned judge set himself loyally and faithfully to
follow the binding authority of the decision. His directions to the jury
followed the approach laid down in the decision though it is contended that in
regard to one or two matters there was faulty exposition which was sufficiently
serious to vitiate the award made by the jury of exemplary damages. These
matters call for separate consideration. If the contentions concerning them do
not succeed there remains an issue as to whether the award of the jury was
excessive and should be set aside. If it is held that there was nothing amiss
at the trial and that the law as laid down in your Lordships House
was properly applied by the learned judge it would be an unhappy conclusion if
it were now held that the trial had in fact been conducted on wrong or at least
on unnecessary lines but that this had only been so because the law which had
to be followed had been wrongly laid down. If that were the conclusion it is by
no means certain that it would be possible to avoid ordering a new trial which
would then be conducted on the basis of the law as newly laid down. But a
result so lamentable (and for the parties so calamitous) must be contemplated
as at least a possibility if it is decided that the law was wrongly declared in
1964 and must now be changed or changed back again. Before
considering this aspect of the matter further I must express my view in regard
to the main contentions which are raised by the appellants. They for their part
do not in any way question the validity of Rookes v. Barnard. Their appeal relates only to the
award of exemplary damages. The jury found that the words complained of in the
hard back edition were defamatory of the plaintiff and that the words were not
true in substance [*1094] or in
fact. They found similarly in regard to the proof copies. They awarded
compensatory sums respectively of £14,000 and £1,000. No
challenge as to such results is made. No criticism is advanced in regard to the
very careful summing-up of the learned judge dealing with the facts and with
the issues as to liability. No suggestion is made that the awards of
compensation can be attacked as being excessive or unreasonable. The
learned judge left three questions to the jury on the issue of exemplary
damages. First they were asked whether the plaintiff had proved that he was
entitled to exemplary damages. Here the learned judge was carefully following Rookes
v. Barnard. There
may be exemplary damages if a defendant has formed and been guided by the view
that, though he may have to pay some damages or compensation because of what he
intends to do, yet he will in some way gain (for the category is not confined
to moneymaking in the strict sense) or may make money out of it, to an extent
which he hopes and expects will be worth his while. I do not think that the
word calculated was used to denote some precise balancing
process. The situation contemplated is where someone faces up to the
possibility of having to pay damages for doing something which may be held to
have been wrong but where nevertheless he deliberately carries out his plan
because he thinks that it will work out satisfactorily for him. He is prepared
to hurt somebody because he thinks that he may well gain by so doing even
allowing for the risk that he may be made to pay damages. As the learned judge
put it in reference to defamation there may be exemplary damages in cases where
someone wilfully or knowingly or recklessly peddles untruths for profit. There
must be evidence fit to be left to the jury but, if there is, then it is for
the jury to decide whether there is entitlement to exemplary damages on the
basis to which I have referred. It was
contended on behalf of the appellants that there was no evidence fit to be left
to the jury in this case on this issue. In my view this contention wholly
fails. There was ample evidence. It was painstakingly recounted in the summing
up of the learned judge. It is helpfully referred to and summarised in the
judgment of the learned Master of the Rolls. It is reviewed in the speech of
Lord Hailsham of St. Marylebone L.C. which I have had the advantage of reading
in advance. Similar
considerations apply to the question which was put to the jury and which they
answered by saying that entitlement to exemplary damages was proved against
both defendants. It is in
regard to the next question and answer that the greatest doubts and
difficulties in my view arise. Being asked What additional sum
should be awarded him by way of exemplary damages? the answer of the jury was
£25,000. So there were three awards: one being (for the hard back
edition) the compensatory figure of £14,000: another being the exemplary
damages figure of £25,000. For the total of £40,000
judgment was entered. I must
confess that for my part I should greatly regret it if the practice became
general of having a separate award of exemplary damages in this manner (I will
return to this question later). But the learned judge was only following the
guidance specifically given in Rookes v. Barnard. There it was said, at p. 1228,
that the fact that the two sorts of damage differ essentially does not
necessarily mean that there should be two awards. [*1095] But it
was said that there may be cases in which it is difficult for a judge to say
whether he ought or ought not to leave a claim for exemplary damages to the
jury. I can quite see that in such a case it will be easier for an appellate
court (where an issue is raised whether there was evidence which could justify
an award of exemplary damages) if there are two awards. The award of exemplary
damages could be set aside without the necessity for a new trial if the
appellate court considered that the evidence was not such as to have been fit
for the consideration of the jury so as to entitle them to award exemplary
damages. For this reason it was stated in Rookes v. Barnard, at p. 1228, that if a judge is
in doubt whether he ought to leave a claim for exemplary damages to a jury,
then he could invite them to say what sum they would fix as
compensation and what additional sum, if any, they would award if they were
entitled to give exemplary damages. It was this course that the
learned judge followed in the present case. But if this course is followed the
words if any become of importance. They were not included
in the question which was put to the jury. There are
three very important issues which arise. (1) Did the learned judge give an
adequate direction to the jury to ensure that they understood that they should
only award an additional sum if they were satisfied that
the amount they were awarding as compensatory damage was in itself not enough to
punish the defendants? (2) Did the learned judge give an adequate direction to
meet the situation where (as in this case) there are two defendants? (3) In any
event is the sum of £40,000 excessive as an award of exemplary
damages and a figure which no reasonable jury could award with the
result that though the purely compensatory part £15,000 is not
challenged the award of an additional £25,000 must be set aside? (1) The
relevant sentences in the summing up have been referred to in the speech of
Lord Hailsham of St. Marylebone L.C. and I need not set them out. I would have
been happier if the direction on this point (which came towards the end of what
I venture to think was a masterly review of the case) had been ampler and more explicit
than it was. But the learned judge did emphasise the word
additional. He asked the jury to underline it. He said that
they should underline it because both the court and counsel would want to know
if you do decide to award punitive damages how much more do you award
over and above the compensatory damage. Even so it would have been
better to have made it abundantly clear that the punitive element is not to be
considered in isolation: an enforced obligation to pay a large sum by way of
compensation has itself a punitive impact. So a jury ought fully to understand
that only if a sum awarded as com pensation is inadequate as a punishment
should any larger sum be awarded. Much
earlier in his summing-up the learned judge had dealt with this matter in an
introductory way. He told the jury that they were being asked not only to give Captain Broome compensatory
damages that is a reasonable sum for the injury to his reputation and the
exacerbation of his feelings: but in addition to fine Cassells and Mr. Irving
for having done what they have done. The money which you decide if
you do decide to award by way of punitive damages will not go [*1096] into the national Exchequer. It will
have to go into Captain Broomes pocket. Here
again there was an omission to emphasise that an award of compensation must
always and inevitably be a part of the fine in cases where
the imposition of a fine is warranted. Though a
study of the shorthand note of what was said has led me to the view that there
should have been amplification in the way to which I have referred, the
important question now is whether it should be held that the jury were misled
with the result that their award cannot stand. The emphasis placed upon the
word additional could not have been lost sight of by the
jury. Additional to what? Quite clearly, additional to the amount of
compensation awarded. The jury were asked how much more
they would award. The more was to be over and
above the compensation. It surely must have been clear to the jury
that any more that they decided upon or any
additional sum would have to be paid by those against whom
they awarded it on top of the sum that they were first awarding. Here was a
jury that listened to the case over a period of 17 days. They deliberated for
nearly five hours. They awarded a sum of £25,000 to be
additional to their award of £15,000. They knew
that the total was £40,000. Thereafter they heard both counsel agree
that there should be a single judgment for that amount. No suggestion was made
(or I think could possibly have been made) that the £25,000 included
the £15,000. I would find it difficult to accept that at the stage in
their deliberations when they were considering whether Cassells and Mr. Irving
should be punished by being made to pay money they should at that stage have
left out of account one part of the money that they themselves were awarding.
If, having decided that it was a case for punishment, the jury were considering
the monetary sum which, as such punishment, should be paid, the point would
surely have been raised by one member if not by all members of the jury: Are we
not punishing them enough by saying that they must pay £15,000? They
could have recorded that as their view had they entertained it. I am not
prepared to assume that something which at that stage must really have been
quite obvious was overlooked by the jury. (2) There
is nothing in regard to this question which I could usefully add to what Lord
Hailsham of St. Marylebone has said in reviewing the authorities and in
formulating his conclusion. I express my concurrence. (3) The
approach which should be followed by an appellate court in considering whether
an award of damages made by a jury should be assailed on the ground that the
sum awarded is excessive has been clearly defined in authoritative decisions.
They are referred to in the speech of Lord Hailsham of St. Marylebone. I am
bound to say that the figure of £40,000 appears to me to be a high
figure. Certainly it must be a very unusual case in which on a correct
application of the law as laid down in Rookes v. Barnard the amount which defendants must
pay should so greatly exceed the amount which is reasonably to be received by
the plaintiff by way of compensation. It is this disparity between the
£40,000 and the £15,000 that has caused disquiet as to whether
the jury may have been caused or allowed to be under a misunderstanding. But if
the conclusion is reached [*1097]
that the jury knew what they were about and chose their figures advisedly then
I do not think that I ought to conclude that their additional
figure of £25,000 was so high that no reasonable jury could award it.
To translate injury to and attack upon reputation into monetary terms is at all
times a difficult exercise. But it was the same jury that fixed the
additional figure of £25,000 that also
without being impeached for so doing fixed the compensatory figure
of £15,000. If they did not go wide when fixing the latter why should
it be determined that they went wide in fixing the former? The conclusion which
I think can be drawn is that the jury took a very serious view of the conduct
and attitude of the defendants. If, after hearing all the relevant features of
the case probed and examined over a period of seventeen days and hearing the
evidence of such of the parties as decided to call or give evidence, the jury
did take a very serious view, there was evidence which entitled them to do so.
They may have regarded the conduct and attitude of each of the defendants with
equally sharp disfavor. If it was their considered collective view that the
defamation was grave, and that publication was deliberately undertaken by those
who had regard for their own advantage but none for the honour and renown of
one whom they traduced, then the jury were warranted in deciding that such
conduct should be heavily penalised. Whatever might have been my personal
assessment had I been on the jury I have not been persuaded that it must be
decided that the penalty imposed was beyond the limit to which a reasonable jury
could go. Nor can it be said with any assurance that an estimation of a figure
by a learned judge would necessarily have superior validity. A learned judge
has experience and knowledge of other cases but in a matter so elusive as
fixing in monetary terms a reflection of feelings of disapproval there is no
norm. It may be difficult to give guidance but a judge should be able to
express to a jury the same guidance as he would give to himself. For the
reasons which I have given I consider that the appeal should be dismissed. As I
have indicated, the appellants in no way sought to impugn the decision in Rookes
v. Barnard [1964]
A.C. 1129. Such ardour in criticism as may have been evinced in the Court of
Appeal by counsel for the respondent became tempered and modified by the
reflection that an assault upon Rookes v. Barnard was not essential for his success
in this appeal and that the overturning of Rookes v. Barnard might at least possibly, involve
the jettisoning of all the proceedings to date and a complete new trial on a
fresh basis. But as so much was said about Rookes v. Barnard and because in the printed case
of the respondent the first reason set out was that your Lordships
House should depart from its decision in Rookes v. Barnard (in so far as that decision
altered the law on exemplary damages generally or at least in defamation cases)
I must record my opinion. In Rookes
v. Barnard one
submission that was made was that exemplary damages could not be awarded in
that case. Other submissions led to a somewhat general consideration of the law
relating to exemplary damages. The report of the arguments (from p. 1158 to p.
1164) shows that certain authorities and certain text books were referred to
and were examined. There were citations of some thirty cases. In the result the
House examined and reviewed the law and came to certain conclusions. [*1098] The House was not bound to limit those
conclusions within any formulation which counsel had thought fit to formulate. It would
be idle to deny that a very considerable pruning operation was decided upon. It
may be that there are some who would not have pruned so much and so
drastically. It may be that there are some who would have pruned more severely.
What was done was done in the hope of removing from the law a source
of confusion between aggravated and exemplary damages. It may be that
there are some who feel that though the previous law (built up, as the common
law is, as a result of particular decisions given in particular sets of
circumstances) was in very many respects imprecise and even illogical, yet it
was somehow found in practice to work and to be no serious cause of confusion.
It may be that there are some who consider that manifest variations and
divergencies in terminology did not reflect any really fundamental differences
of approach: that, for example, when in Mediana (Owners) v. Comet (Owners) [1900] A.C. 113, 118 Lord
Halsbury L.C. made a reference, though only a passing and incidental one, to
punitive damages: I put aside cases of trespass where a
high-handed procedure or insolent behavior has been held in law to be a subject
of aggravated damages, and the jury might give what are called punitive
damages he had
much the same conception in mind as had Lord Atkinson when in Addis v.
Gramophone Co. Ltd.
[1909] A.C. 488, 496, he made an incidental reference to circumstances of
malice, fraud, defamation or violence which would sustain an action of tort in
which a person might no doubt recover exemplary damages, or what is
sometimes styled vindictive damages; or as had Lord Loreburn L.C.
when he spoke in E. Hulton & Co. v. Jones [1910] A.C. 20, 25: In the second place the jury were entitled to
say this kind of article is to be condemned. There is no tribunal more fitted
to decide in regard to publications, especially publications in the newspaper
press, whether they bear a stamp and character which ought to enlist sympathy
and to secure protection. If they think that the licence is not fairly used and
that the tone and style of the libel is reprehensible and ought to be checked,
it is for the jury to say so; But, even
if some of the thoughts above referred to are in fact entertained, do they give
warrant for re-opening now the debate that led to the decision in Rookes v.
Barnard? I do not
think so. I do not think that the power that was referred to in the statement
of July 26, 1966, [1966] 1 W.L.R. 1234 was intended to encourage a tendency
periodically to chop and change the law. In branches of the law where
clarification becomes necessary there may well be decisions which as a matter
of policy are not universally welcome or where some may think that some variant
of the decision one way or the other would have been more acceptable. But this
does not mean that decisions of this House should readily be reviewed whenever
a case presents itself which is covered by a decision. There must be something
much more. In his
book Principles of the Law of Damages (1962) Professor Street poses the
question whether awards of exemplary damages are ever justified. [*1099] He
outlines seven arguments against them and with mathematical impartiality seven
arguments in their favour concluding that one cannot say whether or not
exemplary damages are desirable. Whatever general views may be entertained or
whatever inclination there may be in different personal views, I see no
advantage in refusing at this juncture to recognise that a deliberate
pronouncement was made in Rookes v. Barnard. Though I
consider that no reason has been shown for denying to that pronouncement the
authority of a decision of this House it is not inconsistent with this approach
to express the hope that a necessity for a separate and isolated assessment of
exemplary damages will be rare. In the search for authority only one case was
found prior to Rookes v. Barnard in which there was such a result. That was Loudon v.
Ryder [1953] 2
Q.B. 202 now overruled. The present case is, I think, the first one subsequent
to Rookes v. Barnard in which such a separate award has actually been made. In the
older cases the vindictive or exemplary
or punitive aspect merely became one element in a composite
whole. Thus the law as it was in 1877 was summarised in the 3rd edition of Maynes
Treatise on Damages. He pointed (see p. 37) to the difference between damages
in cases of contract (where they were only a compensation) and in cases of
tort. In the latter when there were no circumstances of aggravation
they are generally the same. But he said at p. 37: Where the injury is to the person, or character,
or feelings, and the facts disclose fraud, malice, violence, cruelty, or the
like, they operate as a punishment, for the benefit of the community, and as a
restraint to the transgressor. In the
various cases cited (see pp. 36, 37, 514, 516) one amount only of damages was
assessed. For a later general summary of the law (as it was in 1895) reference
may be made to Sir Frederick Pollocks 4th edition of The Law of
Torts. He refers (see p. 174) to cases where there is great injury without the
possibility of measuring compensation by any numerical rule. In such cases he
said: ... juries have been not only allowed but
encouraged to give damages that express indignation at the defendants
wrong rather than a value set upon the plaintiffs loss. Damages
awarded on this principle are called exemplary or vindictive. He went
on to explain that: The kind of wrongs to which they are applicable
are those which, besides the violation of a right or the actual damage, import
insult or outrage, The cases
cited, to which I need not refer in detail, again appear to me to be cases in
which only one figure of damages was assessed. When juries
came to award damages in such cases of tort they did there fore give and indeed
were encouraged to give a sum which marked displeasure or
indignation or which was to serve as a deterrent or as an example or which
vindicated the law or which was a way of punishing the defendant. But juries
were not invited to isolate such element as was purely punitive. I do not
expect that they did in practice. In some cases their displeasure or
indignation would operate as a kind of topping-up process. But if the process
by which they had arrived at a figure could have been analysed (which normally
it could not have been), while it would probably have been [*1100] found that there had been nothing in
the nature of a mathematical addition of separate sums, yet it would have been
recognised that some (wholly unascertainable) part of the whole must have been
purely punitive. Stated otherwise such (unascertained) part was a fine. Logical
analysis forces the conclusion therefore that in the result there would in a
civil action have been punishment for conduct not particularised in any
criminal code and that such punishment had taken the form of a fine not
receivable by the state but as a sort of bonus by a private individual who
would, apart from it, be solaced for the wrong done to him. There may be much
to be said for making it permissible in a criminal court to order in certain
cases that a convicted person should pay compensation. There is much to be said
against a system under which a fine becomes payable in a civil court without
any of the safeguards which protect those charged with crimes. If therefore the
working of the law before Rookes v. Barnard is exposed to a relentless
logical examination it has to be conceded that some features of it were not in
principle acceptable. Yet it may be that no serious injustice resulted. And
indeed as we have been told the life of the law often lies not in logic but in
experience. It would however be an unfortunate and bizarre result if a wholly
laudable attempt to rationalise the law had brought it about that the element
which it was most sought to suppress was so brought into sharp relief that it
attained a significance never before exhibited. I would
regard the present case as exceptional in the sense that the jury must have
considered that the conduct of the defendants merited very special
condemnation. In other than an exceptional case where exemplary damages are to
be awarded I would hope that a jury would be unlikely to award a total sum
which exceeded its purely compensatory component element to an extent in any
way comparable to that which is revealed in the present case. I would
dismiss the appeal. VISCOUNT
DILHORNE. My
Lords, the main issues to be determined in this appeal are (1) whether what was
said by my noble and learned friend, Lord Devlin, in Rookes v. Barnard [1964] A.C. 1129 with regard to
exemplary damages, and with which all the other members of the House then
sitting agreed, correctly states the law: (2) if it does, whether Lawton J.
erred in leaving the question of exemplary damages to the jury: (3) having left
it to them, whether he misdirected them with regard thereto: and (4) whether
the sum of £40,000 awarded by them, of which £25,000 was
exemplary damages, was so excessive that that verdict cannot be allowed to
stand. I propose
to consider the first of these questions last. Although Rookes v. Barnard was not concerned with damages
for libel, I consider the other questions on the assumption that what was said
in that case is not to be regarded as obiter in relation to libel cases and is
to be regarded as binding on all inferior courts. Lord
Devlin expressed the view that there were only three categories of cases in
which exemplary damages could be awarded, namely: (1) where there had been
oppressive, arbitrary or unconstitutional action by servants of the government;
(2) where the defendants conduct had been calculated by him to make a
profit for himself which might well exceed [*1101]
rhe compensation payable to the plaintiff; and (3) where exemplary damages are
expressly authorised by statute. The
appellants contended that this case did not come within the second category.
They called no evidence at the trial and the question whether it should have
been left to the jury to consider exemplary damages, depends on whether there
was evidence given or adduced on behalf of the plaintiff on which the jury were
entitled to infer and conclude that the defendants conduct was of
that character. I do not
think that Lord Devlin ever envisaged that, to bring a case within the second
category, the plaintiff would have to show that there had been something in the
nature of a mathematical calculation by the defendant, an assessment of the
profit likely to ensue from the publication of defamatory matter and an
estimation of the risk of being sued and the damages likely to be awarded if an
action was brought. If a plaintiff had to prove that, it would be seldom that
he would be in a position to do so. Newspapers
and books are usually published for profit and that fact does not by itself
make the publisher liable to pay exemplary damages. I think
that Widgery J., as he then was, was right when he said in Manson v.
Associated Newspapers Ltd. [1965] 1 W.L.R. 1038, 1040-1041: ... it is perfectly clear, from those
authorities, McCarey v. Associated Newspapers Ltd. [1965] 2 Q.B. 86 and Broadway
Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805 that in a case in
which a newspaper quite deliberately publishes a statement which it either
knows to be false or which it publishes recklessly, careless whether it be true
or false, and on the calculated basis that any damages likely to be paid as a
result of litigation will be less than the profits which the publication of that
matter will give, then Lord Devlins conditions are satisfied and
exemplary damages are permissible. He went
on to say at p. 1041 that he proposed to tell the jury that they could consider
exemplary damages: ... if, having considered what material there is
before them, they are driven to the inference that this was an article
published by the defendants conscious of the fact that it had no solid
foundation and with the cynical and calculated intention to use it for what it
was worth, on the footing that it would produce more profit than any possible
penalty in damages was likely to be. I think
too that Lawton J. put the matter correctly when he said in the course of his
summing-up: A man is liable to pay damages on a punitive basis if he
wilfully and knowingly, or recklessly peddles untruths for profit. In my
opinion, there was ample evidence on which the jury was entitled to come to the
conclusion that the case came within the second category. On December 9, 1966,
Mr. Irving the author, sent the manuscript of the book to Cassells with a
letter in which he said that Captain Broome had threatened legal action if the
manuscript was published, and on December 23 he sent them a long letter in
which he quoted an extract from a letter he had received from Kimbers the
publishers to whom he had first submitted [*1102]
the manuscript. That extract stated: ... if the book goes to a legal
man as it is, he could only tell you that half is libellous. We could not
possibly publish the book as it is ... The
manuscript submitted to Cassells was identical with that which Kimbers had
seen. Perusal of it by any intelligent publisher must, even without the
advantage of having the views of another publisher, have led to the conclusion
that it contained many very grave and serious libels on Captain Broome and the
jury were fully entitled to conclude that Cassells realised this. Mr. Kimber
gave evidence that about March 8, 1967, he had telephoned Mr. Parker, a
director of Cassells and told him that they had had one or two threats of libel
actions if they published the book; to which Mr. Parkers response
was: In that case we will tighten up the indemnity clause in Mr.
Irvings agreement. On
December 27, 1967, Captain Broome wrote to Cassells saying that the manuscript
was unquestionably libellous. They replied saying that in
the light of his comments drastic revisions had been made.
In fact, as Cassells must have known, the revisions that were made did not
materially affect the passages defamatory of Captain Broome. On February 16,
1968, the business director of Cassells circulated a memorandum in the
following terms, to all concerned: It is anticipated that early copies of The Destruction
of Convoy PQ17 will start coming into the house on March 5. Will you please
note that absolutely and positively not one single copy, on any pretext
whatsoever, is to be removed from the house without reference to me. Mr. Mitchell: Would you please notify the printer that
this book is to be treated on a maximum security basis and ensure that not one
single copy slips through their net. Shortly
thereafter Cassells circulated proof copies of the book. Why they did so after
the circulation of this memorandum is not known for no evidence was given for
them. In the absence of any explanation the jury were, in my view, entitled to
draw the inference that they had decided to publish the book, despite Captain
Broomes threats of action, knowing that passages in the book were
libellous of Captain Broome and not caring whether those passages were true or
false and on the footing that it was worth their while to run the risk of an
action being brought by him and of his obtaining damages in order to make a
profit on the book. On March
5, 1967, Captain Broome issued a writ for libel. On April 29, 1968, his
statement of claim was delivered. Cassells then knew, if they were in any doubt
before, of what passages he was complaining. On June 14, 1968, they delivered
their defence. They pleaded that the words complained of were true in substance
and in fact in their natural and ordinary meaning. They did not seek to justify
the meaning which the statement of claim alleged the words complained of bore,
inter alia, that Captain Broome had been disobedient, careless, incompetent,
indifferent to the fate of the merchant ships and had been largely responsible
for or contributed extensively to the loss of two-thirds of the ships of the
convoy. Despite
the issue of this writ, Cassells went on and published a hard back [*1103] edition of the book. That led to
another writ being issued by Captain Broome. Again in
their defence to this statement of claim Cassells pleaded that the words
complained of were in their natural and ordinary meaning true in substance and
in fact but did not seek to justify the meanings which in the statement of
claim it was alleged they bore. The jury by their verdict rejected the plea of
justification and must have accepted that the passages complained of bore the
meanings alleged by the plaintiff. I do not
propose to set out what those passages were. Suffice it to say that they
clearly alleged that Captain Broome had been disobedient, careless,
incompetent, indifferent to the fate of the merchant ships, that he had wrongly
withdrawn his destroyer force from the convoy, that he had taken it closer to
the German airfields than he had been ordered to do and that he had been
responsible for the loss of two-thirds of the ships in the convoy. He was in
fact accused of cowardice. That
Cassells did not appreciate that the passages complained of could be understood
to have these meanings, is hard to accept. Yet after publication of the proof
copies, after receipt of the writ and the statement of claim in respect of that
publication, and when they knew the meanings which it was alleged the passages
bore, they went on and published the hard back edition, and at the trial
persisted in their plea of justification. In these
circumstances if Lawton J. had ruled at the end of the plaintiffs
case, as he was asked to do, that there was no evidence from which the injury
could infer that the case came within the second category, he would in my
opinion have erred. I therefore reject this contention of the appellants. After
specifying the three categories of cases in which in his view exemplary damages
might be awarded, Lord Devlin in Rookes v. Barnard said that there were three
considerations which must always be borne in mind and then went on to say [1964]
A.C. 1129, 1228: In a case in which exemplary damages are
appropriate, a jury should be directed that if, but only if, the sum which they
have in mind to award as compensation (which may, of course, be a sum
aggravated by the way in which the defendant has behaved to the plaintiff) is
inadequate to punish him for his outrageous conduct, to mark their disapproval
of such conduct and to deter him from repeating it, then it can award some
larger sum. Complaint
is made that Lawton J. gave no such direction to the jury. With the agreement
of counsel, he asked them to answer seven questions. The first was whether, in
respect of the hard back edition, the words complained of were defamatory of
the plaintiff; the second, were they true in substance and in fact. Their
answer to the first question was, Yes and to the second, No. The third question
was: What compensatory damages do you award the plaintiff?
Their answer was £14,000. Then in answer to the fourth and fifth
questions they said that he was entitled to exemplary damages against both
defendants. The sixth question was What additional sum should be
awarded him by way of exemplary damages? Their answer was
£25,000. After the
questions had been handed to the jury in the course of the summing-up, Lawton
J. told them that, after considering what were the [*1104] compensatory damages if they found for
the plaintiff, they should go on to consider whether he was entitled to
exemplary damages. As to that, he told them to consider the case against each
defendant separately, saying: In respect of each of them you will ask
yourselves this question: Has the plaintiff proved his entitlement
against that defendant? If the answer is yes, then you will have to
go on and assess how much punitive damages should be awarded. In the
next paragraph of his summing-up, he repeated this, saying: You will have to ask yourselves: Has
he proved that he is entitled to punitive damages against Cassell & Co.
Ltd.? If the answer is no, that is that. If the answer is yes, you
will have to assess the damages. And then
he asked the jury to underline the word additional in the
sixth question as he and learned counsel wanted to know: If you do
decide to award punitive damages, how much more do you award over and above the
compensatory damage? The jury
were thus clearly told that if they found that the plaintiff was entitled to
punitive damages, they must then assess what punitive damages should be
awarded. They were never told that in considering whether any sum should be so
awarded, they must have regard to the sum they awarded for compensatory
damages, and if, and only if, that sum was inadequate to punish the defendants,
should they add to it by awarding a sum for exemplary damages. The
failure to give such a direction, I regret that I cannot but regard as a most
serious omission. It is one of the most important features of Lord
Devlins speech that a direction on the lines he stated should be
given. It was not, and instead the jury were told twice that, if they held that
Captain Broome was entitled to exemplary damages, they must assess them. The
jurys verdict shows that they thought that £15,000 compensatory
damages was insufficient, but if they had been told that they must, in
assessing exemplary damages, take into account the sum awarded in compensation,
it is possible that they would have awarded not £25,000 but only
£10,000 as exemplary damages, that is to say, that they would have
deducted from the £25,000 the £15,000 compensatory damages. I regret
having to come to this conclusion but I see no escape from it. After a trial
lasting 17 days and lengthy hearings in the Court of Appeal and in this House,
one feels some reluctance to say that the jurys verdict should not
stand. If all the counsel engaged in the case had told the jury that a sum
should only be awarded for exemplary damages if the amount of the compensatory damages
was insufficient punishment, then it might be possible to say that despite the
omission in the summing-up, the jury can have been in no doubt as to what they
were required to do. Unfortunately all counsel did not tell them that. One
counsel told the jury in his final address that they must consider exemplary
damages quite separately from compensatory damages. He told them: ...
they are completely unconnected with each other and in no sense does the one
head fall to be balanced against the other and: The two
sums are so different that there is no propriety in any sense in balancing them
up. [*1105] He thus
indicated that account should not be taken of the amount of compensatory
damages when deciding what, if any, sum should be awarded for exemplary
damages. Counsel for Cassells did not refer to the matter but Mr. Colin Duncan
in his final address for the defendant Irving read to the jury the
if, but only if, passage of Lord Devlins speech. As the
case was presented to the jury, I can see no ground for the conclusion that
they must, despite the omission in the summing-up, have been aware that they
had to take into account the compensatory damages when deciding, if they held
that there was entitlement to exemplary damages, what sum, if any, should be
awarded on that account. On the contrary, the passages I have cited from the
summing-up show that they were told that, if they found entitlement, they must
then assess an amount for exemplary damages. I have
regretfully come to the conclusion that in consequence of this omission, the
verdict should not be upheld. Another
criticism made of the summing-up was that the jury were not told on what basis
they should assess the exemplary damages if they found that the plaintiff was
entitled to them from both defendants and if, in their opinion, the degree of
guilt of the defendants differed. In the
Court of Appeal there was considerable divergence of view as to the proper
direction to be given on this. While there is ample authority for the
proposition that against joint tortfeasors there can only be one verdict and
one judgment for a joint tort, there is not a great deal of authority on this
question. Such as there is points to the conclusion that the plaintiff can only
recover the amount which all the defendants should pay and that the amount to
be awarded should not be increased to a sum thought adequate to punish the most
guilty defendant: see Dawson v. MClelland [1899] 2 Ir.R. 486, 490 per
Andrews J.: per Boyd J. at p. 493 and per FitzGibbon L.J., at p. 499; Smith
v. Streatfeild
[1913] 3 K.B. 764, 769 per Bankes J. and Gatley on Libel and Slander, 6th ed. (1967), para. 1389. If
that were not the case an innocent party or a less guilty party might have to
pay a sum far in excess of that which he ought to pay. The result of this
conclusion appears to be that if three defendants are sued for writing,
printing and publishing a libel, if the publisher and author are held liable to
pay exemplary damages and the printer is not, the plaintiff will not be awarded
exemplary damages and the publisher and author will avoid liability for such
damages. The
summing-up contained this passage: ... say, for example, you took the view that Mr.
Irving was more to blame than Cassell & Co., or to be fair, you took the
view that Cassell & Co., being an experienced firm of publishers were more
to blame than this young man, Mr. Irving, should you make Cassell & Co. pay
a larger sum by way of punitive damages than Mr. Irving? The answer to that is
No. Whatever damages, if any, you decide should be awarded by way of punitive
damages must be the same sum in respect of both Mr. Irving and Cassell &
Co. Ltd., if you find them both liable to pay punitive damages. Later in
response to an intervention by counsel, the judge made it clear [*1106] hat this did not mean awarding one sum
against each defendant but one sum against both. While it
can be said that the direction on this might have been more clearly expressed,
I think it suffices for this passage did indicate to the jury that they should
award a sum which was appropriate to the less guilty of the two. It may, of
course, be the case that the jury did not find that one was more guilty than
the other. I now
turn to the question whether the damages awarded were so excessive that the
verdict cannot be allowed to stand. In Rookes
v. Barnard [1964]
A.C. 1129, 1228 Lord Devlin recognised that where there was entitlement to
exemplary damages, that did not necessarily mean that there must be two awards
though he expressed the view that where there was doubt about entitlement to
such damages, to avoid the risk of a new trial, it might be convenient to have
separate awards. One
consequence of there being two awards, one for compensatory damages and one for
exemplary, is that the jurys verdict is more open to attack. If
£15,000 was sufficient to compensate the plaintiff for the injury
indicted on him, what justification can there be for an award of a further
£25,000 as exemplary damages? Lawton J.
very clearly told the jury that they were being asked to fine Cassells and Mr.
Irving for what they had done. He told them that they were really in
the position of a judge or magistrate trying a criminal case and that
punitive damages must be reasonable in all the
circumstances. An
appellate court should only interfere with a jurys verdict as to
damages if it is such as to show that the jury has failed to perform its duty: Mechanical
and General Inventions Co. Ltd. v. Austin and Austin Motor Co. Ltd. [1935] A.C. 346 per Lord Wright
at p. 375: Bocock v. Enfield Rolling Mills Ltd. [1954] 1 W.L.R. 1303: Scott
v. Musial [1959]
2 Q.B. 429: Lewis v. Daily Telegraph Ltd. [1963] 1 Q.B. 340 and other cases. To be set
aside, the verdict must be out of all proportion to the facts. The award
of £25,000 for exemplary damages, as a fine and despite the direction
given by Lawton J. to which I have referred, in addition to the award of
£15,000 compensatory damages is, in my opinion, out of all proportion
to the facts and suffices to show that they failed to perform their duty. Their
award was, in my view, far in excess of the most that twelve reasonable men
could be expected to give. If they had appreciated that they had to take into
account the compensatory damages, then as I have said perhaps they might have
awarded an additional £10,000 as exemplary damages. I would myself
have assessed a considerably lower figure. Perhaps, one does not know, they may
have thought that the judge had power to set off one against the other. However
that may be, I think that the highest figure that could have been awarded by a
jury performing its duty for exemplary damages would have been
£10,000 in which case judgment would have been given not for
£40,000 but for £25,000. On this
ground, too, in my opinion the verdict cannot stand. I turn
now to the first question. Does Rookes v. Barnard [1964] A.C. 1129 correctly state
the law with regard to exemplary damages? The Court
of Appeal held that it did not. It was said that it was a decision given per
incuriam. The Court of Appeal refused to follow it and [*1107] judges were told to direct juries in
accordance with the law as understood before that case. Decisions
of this House are binding on all inferior courts and must be followed by them.
There are, I think, two grounds on which the Court of Appeal can justifiably
refuse to follow what has been said in this House. The first is that what was
said was obiter. While it might be argued that the observations made with
regard to exemplary damages in so far as they related to libel actions were
obiter as no question with regard to them arose in Rookes v. Barnard where the question was, could
such damages be given for intimidation, the Court of Appeal did not base their
action on this ground. The second is where there are two clearly inconsistent
decisions of this House, and the Court of Appeal has then to choose which to
follow. In the Court of Appeal it was asserted that what was said in Rookes
v. Barnard was in
conflict with two previous decisions of this House, E. Hulton & Co. v.
Jones [1910] A.C.
20 and Ley v. Hamilton, 153 L.T. 384 but, as I read the judgments, the Court of Appeal did
not proceed upon this ground. To say
that a decision of this House was given per incuriam is, to say the least,
unusual and could be taken, though I cannot believe it was so intended, as of a
somewhat offensive character. While I regret the use of this expression, I
doubt if it was intended to mean more than that the questions involved deserved
more consideration in relation, among other things, to libel actions. If that
is what was meant, it is, I must confess, a view with which I have considerable
sympathy. As I
understand the judicial functions of this House, although they involve applying
well established principles to new situations, they do not involve adjusting
the common law to what are thought to be the social norms of the time. They do
not include bowing to the wind of change. We have to declare what the law is,
not what we think it should be. If it is clearly established that in certain
circumstances there is a right to exemplary damages, this House should not,
when sitting judicially, and indeed, in my view, cannot properly abolish or
restrict that right. This, indeed, was recognised by Lord Devlin when he said,
at p. 1226, that it was not open to this House to arrive at a
determination that refused altogether to recognise the exemplary principle.
If the power to award such damages is to be abolished or restricted, that is
the task of the legislature. One
criticism that can be made of Lord Devlins speech is that while
recognising that a refusal altogether to recognise the exemplary principle was
not possible, he nevertheless restricted the power to award such damages so
that they ceased to be obtainable in cases where prior to Rookes v. Barnard they might have been given. I agree
with Lord Denning M.R. that the pre-Rookes v. Barnard law was well stated in Mayne and
McGregor on Damages, 12th ed. (1961), p. 196, para. 207 where it is said that
such damages can only be given where the conduct of the defendant merits
punishment, which is only considered to be so where his conduct is wanton, as
where it discloses fraud, malice, violence, cruelty, insolence or the like, or,
as it is sometimes put, where he acts in contumelious disregard of the
plaintiffs rights. [*1108]
A similar
statement is to be found in Mayne on Damages, 11th ed. (1946), p. 41. I do not
think that this statement of the law is to be questioned because at p. 200 in
paragraph 212 of the 12th edition it is said that: it cannot be said
that English law has committed itself finally and fully to exemplary damages,
(a view which conflicts with the opinion of Lord Devlin to which I have
referred), and many of the ... cases point to the rationale not of
punishment of the defendant but of extra compensation for the plaintiff for the
injury to his feelings and dignity. This is, of course, not exemplary damages
at all. It is another head of non-pecuniary loss to the plaintiff. This
passage in paragraph 212 did not appear in the earlier editions. I am not
concerned with the rationale but with what was recognised to be the law before Rookes
v. Barnard. And I
am reinforced in my view by the fact that what was said in paragraph 207
appears to accord with Australian law. In this field there does not appear to
have been any difference between Australian and English law prior to Rookes
v. Barnard. In Uren
v. John Fairfax & Sons Pty. Ltd., 117 C.L.R. 118 the High Court of Australia refused to
follow Rookes v. Barnard and held that exemplary damages might be awarded if it appears that
the defendants conduct in committing the wrong exhibited a
contumelious disregard of the plaintiffs rights, McTiernan J. saying,
at p. 122, that the law of exemplary damages was compendiously
stated in the passage I have cited from Mayne and McGregor. Lord
Devlins first category oppressive, arbitrary or
unconstitutional action by servants of the government, a category
which he said he would not extend to oppressive action by private corporations
or individuals, was subjected to serious criticism by Taylor J. in Uren v.
John Fairfax & Sons Pty. Ltd., 117 C.L.R. 118. He pointed out that in none of the
three old cases on which this category was apparently based, did the decisions
turn on the fact that the defendants had acted for the government. Surely it is
conduct, not status, that should determine liability. Power to award exemplary
damages may be an anomaly, but I doubt whether it is beneficial to the law to
seek to reduce the area of that anomaly at the price of creating other
anomalies and illogicalities. Surely it is anomalous if a person guilty of
oppressive conduct should only be liable to exemplary damages if a servant of
the government. In these days there are others than the government who can be
guilty of oppressive conduct. Why should they be treated differently? I can
find nothing in the three cases to indicate that if the conduct complained of
had been by persons other than servants of the government, liability to
exemplary damages would have been acceded. Just as
the definition of this category might be said to have been obiter to the
decision in Rookes v. Barnard [1964] A.C. 1129, so might consideration of it be
regarded in this case. Nevertheless as Rookes v. Barnard has to be considered in this
appeal in consequence of the action taken by the Court of Appeal, I feel I
should express my opinion which is that this narrow definition does not appear
to me to be justified by the authorities on which it was based. It may
also be contended that Lord Devlins second category is also too
[*1109] narrowly drawn, for why should conduct lead to exemplary
damages if inspired by the profit motive or some material interest, and similar
conduct due to other motives not do so? But the substantial criticism that can
be made is that by his categorisation, the previously existing and recognised
power to award exemplary damages is restricted. Lord Devlin indeed appreciated
the novelty of what he was doing when he said that acceptance of his views
would impose limits not hitherto expressed on such awards
(p. 1226). I do not think that this should have or could properly be done. It
should have been left to the legislature. This
conclusion does not, however, mean that the jurys verdict as to
liability must be interfered with. It was urged that Cassells
decision to call no evidence was based on the assumption that Rookes v.
Barnard applied
and that the issue was, did the case come within the second category? While it
may be that the plaintiff would have presented his case differently but for
what was said in Rookes v. Barnard, the defendants had to meet the case as presented whether
or not Rookes v. Barnard applied, and it was in relation to that case that they decided to
call no evidence. As the case presented would prior to Rookes v. Barnard, if established, have justified
the award of exemplary damages, I cannot accept that the defendants might have
reached a different decision about calling evidence on the case as presented if
Rookes v. Barnard
had not been followed. I now
turn to the passage in Lord Devlins speech dealing with the
assessment of damages, a passage which, save in the respect to which I have
referred, was closely followed by Lawton J. in his summing-up. I think
that Salmon L.J., as he then was, correctly summarised the pre-Rookes v.
Barnard practice
when he said [1971] 2 Q.B. 354, 387-388: Judges
used to direct juries in libel actions that, if they found in favour of the
plaintiff, they should award him a sum which would make it plain to the world
that there was no truth in the libel and which, as far as money could do so,
would compensate him for the distress, humiliation and annoyance which the
libel had caused him. They were also told in appropriate cases that they could
take the whole of the defendants conduct into account down to the
moment they returned their verdict, and that if they came to the conclusion
that he had behaved outrageously they might, as a deterrent, reflect their
disapproval of the defendants conduct in the amount of the damages
which they awarded. At the same time they were always warned to be fair and
reasonable and not to allow themselves to be inflamed against the defendant but
to decide dispassionately what in all the circumstances would be a reasonable sum
to award. The
summing-up in Loudon v. Ryder [1953] 2 Q.B. 202 which was previewed by the Court of
Appeal also recognised that outrageous conduct was a ground for exemplary
damages. That appears to be the first case in which a jury was asked to award
separate sums for exemplary and for compensatory damages and in which it was
suggested that the amount awarded for exemplary damages was to be regarded as
the imposition of a fine. In Ley
v. Hamilton, 151
L.T. 360 the Court of Appeal by a majority (Greer and Maugham L.JJ.; Scrutton
L.J. dissenting) allowed an appeal [*1110]
from a jurys verdict awarding £5,000 damages for libel, one
ground for the decision being that the damages awarded were excessive; Maugham
L.J. saying, at p. 374, that the sum could not be described as a fair
and reasonable compensation for the damages which the plaintiff had
suffered, that the verdict could only be justified on the view that the jury
were exercising the right to give vindictive or punitive damages, and that when the damages in question are really not
compensation for an injury sustained by the plaintiff but in the nettler of a
fine inflicted on a defendant, the Court
of Appeal would be compelled to interfere. In this
House, 153 L.T. 384 Maugham L.J.s approach was rejected by Lord Atkin
in a speech with which Lords Tomlin, Thankerton, Macmillan and Wright agreed.
Part of the relevant passages of Lord Atkins speech were cited by
Lord Devlin but two sentences which I italicise and which I regard as important
were omitted. The full passage is as follows, at p. 386: The fact is that the criticism
(Maugham L.J.s) with great respect seems based upon an
incorrect view of the assessment of damages for defamation. They are not
arrived at as the Lord Justice seems to assume by determining the
real damage and adding to that a sum by way of vindictive
or punitive damages. It is precisely because the real
damage cannot be ascertained and established that the damages are at large. It
is impossible to track the scandal, to know what quarters the poison may reach:
it is impossible to weigh at all closely the compensation which will recompense
a man or a woman for the insult offered or the pain of a false accusation. No
doubt in newspaper libels juries take into account the vast circulations which
are justly claimed in present times. The punitive element
is not something which is or can be added to some known factor which is non-punitive.
In particular it appears to present no analogy to punishment by fine for the
criminal offence of publishing a defamatory libel. Maugham
L.J. did not in his judgment refer to real damage. I think
it is clear that by real damage Lord Atkin meant the damage
which the plaintiff had suffered. Yet is
not the very process condemned in Ley v. Hamilton that which it was said in Rookes
v. Barnard should
be followed and that which, pursuant to Rookes v. Barnard, was followed in this case? Lord
Atkin said that for the reasons he gave real damage i.e.,
compensatory damage, could not be ascertained and established. Under Rookes
v. Barnard a jury
is to be directed that that which Lord Atkin said could not be done, is to be
done and compensatory damages assessed first. The punitive
element is not something that can be added. Yet in Rookes v. Barnard it is said that it should be
added if, but only if, the compensatory damages are insufficient. Lord Atkin
said that there was no analogy to punishment by a fine for a criminal libel,
yet following Rookes v. Barnard, juries are to be told that punitive damages amount to a
fine. I must confess my [*1111]
inability to reconcile the views of this House as expressed in Ley v.
Hamilton with
those expressed in Rookes v. Barnard. Before Rookes
v. Barnard the
words aggravated, punitive,
exemplary and retributory were used
indiscriminately to indicate that the damages awarded might be enhanced and
might contain a punitive element. By Rookes v. Barnard precise meanings were attached to
the words aggravated and exemplary.
Lord Devlin recognised, at p. 1221, that the jury could take into account the
motives and conduct of the defendant where they aggravate the injury to the
plaintiff. He said: There may be malevolence or spite or the manner
of committing the wrong may be such as to injure the plaintiffs
proper feelings of dignity and pride. These are matters which the jury can take
into account in assessing the appropriate compensation. So where
the injury is aggravated, an addition can be made to the compensatory damages. While in
some cases it may be evident that malice or misconduct has added to the injury,
there may be other cases where, although it is clear that there has been malice
and misconduct, it cannot be said that the injury inflicted is any greater than
it would have been if there had been no malice or misconduct. In such cases it
would seem from Rookes v. Barnard that the compensatory damages should not be increased.
Nor, in such cases would it seem that exemplary damages as there defined could
always be awarded for they are only to be awarded if the sum given in
compensation is inadequate to punish for outrageous conduct, to mark
the jurys disapproval of such conduct, and to deter a
repetition. The existence of malice may not make the
defendants conduct outrageous, and yet it is, I think, established beyond
all doubt that before Rookes v. Barnard a jury was always entitled to award larger damages
than they otherwise would have given if satisfied that the libel was actuated
by malice. All the
members of the Court of Appeal thought that the Rookes v. Barnard approach was wrong and in
conflict with the views expressed in this House in Ley v. Hamilton. I can find no escape from that
conclusion and if the choice now lies between following one or the other of
those decisions, I would myself choose to follow the simpler and more flexible
approach in Ley v. Hamilton. The Court of Appeal also thought that there was a
conflict with the decision of this House in E. Hulton & Co. v. Jones [1910] A.C. 20. While there are
some passages in the report of that case which afford some ground for that
contention, I do not think that they suffice to establish that that is so with
any degree of certainty. While, if
the views I have expressed prevailed, it would not be necessary to disturb the
jurys verdict as to liability, I cannot regard a direction to assess
damages in accordance with Rookes v. Barnard as a proper direction in
accordance with the pre-Rookes v. Barnard practice and as complying with Ley v. Hamilton. So, if my view were to prevail,
the verdict given in this case could not be sustained and there would, if there
had not been agreement by counsel that this House should in that event assess
the damages, have to be a new trial limited to the assessment of damages. As my
view does not prevail, it is not necessary to express an opinion on what that
sum should be if this House had to assess it. For the
reasons I have stated, I would allow the appeal. [*1112]
LORD
WILBERFORCE. My
Lords, this case must be accounted, as in many respects, an unhappy one. After
a trial of seventeen days before a judge and jury, in which the defendants
called no evidence, the plaintiff, Captain Broome, was awarded against author
and publishers jointly £40,000 damages in respect of libels contained
in the book The Destruction of Convoy PQ17. This total sum
was awarded by the jury as to £15,000 as
compensatory damages and as to £25,000 as
punitive damages. Captain Broome was awarded his costs of
the trial. An appeal
was taken to the Court of Appeal by both defendants. The substantial points for
argument were two: (1) whether the summing-up was defective as regards the
circumstances in which punitive damages may be given in addition to
compensatory damages (2) whether the damages awarded were excessive. There was
also a question as to whether a separate award should have been made against
each defendant. Since the passages in the book principally complained of
reflected upon the conduct of officers of the Royal Navy, in combat conditions,
there was an obvious danger that the jury may have become inflamed. This made
it particularly necessary that there should be a dispassionate and cool review
of the sums awarded and of the summing-up in the Court of Appeal. If
matters had taken their proper and normal course, these matters should have
been disposed of within a few disobey dismissal of the appeal or by an order
for a new trial, and no question of appeal to this House would have arisen. This did
not happen. The trial had been conducted properly, and inevitably upon the
basis that the law to be applied as regards any claim for punitive damages was
that stated by this House in Rookes v. Barnard [1964] A.C. 1129. The learned
judge considered that he was bound by what was said in this House, as he
clearly was. But in the Court of Appeal argument was admitted to the effect
that Rookes v. Barnard, on punitive damages, was wrong and should not be followed: the Court
of Appeal so decided, and three judgments, separate exercises in forceful
advocacy, were delivered giving their reasons. The
course permitted and taken was doubly surprising. First, there was nothing new
about Rookes v. Barnard. It was decided in 1964: it had been followed and applied in England
by the Court of Appeal itself three times since then in, amongst others, libel
cases without difficulty or protest by any of the Lords Justices involved.
Secondly, it was, on the view of the facts which the Court of Appeal took,
unnecessary for the decision of the appeal to decide whether Rookes v.
Barnard on
punitive damages was right or wrong. The Court of Appeal, having held that it
was wrong, still dismissed the appeal, and in an alternative passage held that
the same result followed if it was right. The
consequences for the present litigants have been heavy. An appeal has been
brought here and argued for thirteen days. Counsel for the appellants were
forced into the necessity of arguing at length that Rookes v. Barnard is right, and this argument was
answered on the respondents side. A mountain of costs has piled up
and it is as well that the size of this should be understood: it is open on the
record. As shown by the order of the Court of Appeal, the plaintiffs
costs at the trial have been taxed at £22,000. His costs as assessed
in the Court of Appeal are £7,000. His costs in this [*1113] House must exceed this figure. The
taxed costs of the defendants are unlikely to be less: there will be further
solicitor and own client costs on either side. It may not be unfair to put the
aggregate bill, which an unsuccessful party may have to bear, at more than
£60,000. It would be entirely unfair to suggest that the whole, or
even half this sum, is due to the course taken in the Court of Appeal
the greater part flows from the inherent nature of our system. But
it is necessary to say that in a legal system so extravagant and punitive as to
costs as ours is in civil cases, and particularly libel actions, the addition
of further burdens, and here they were certainly considerable, carries the
result further into an unacceptable area of injustice. England has not the
equivalent of the New South Wales Suitors Fund Act 1951 nor of the Victoria
Appeal Costs Fund Act 1964, so when the machinery creaks it is the private litigants
who pay. I have felt deep concern about this throughout the hearing. My Lords,
observations have already been made on other constitutional aspects of the
Court of Appeals judgments. I concur entirely with what has been
said, and the fact that for reasons of space I abstain from using my own words
does not mean that my concurrence is any the less wholehearted. I proceed
to the principal task we have, which is to decide the present appeal. Before
examining the summing-up, on which the jurys verdict was based, it is
necessary to establish the law. This involves some reexamination of those parts
of the decision in Rookes v. Barnard [1964] A.C. 1129 which relate to punitive damages. I shall
consider Rookes v. Barnard under three heads. First, as to the analysis it contains
of damages in tort cases: secondly, as to defamation actions in relation to
Lord Devlins second category both of these being directly
relevant to the present case: thirdly, and briefly, as to the first and second
categories, their inclusions and exclusions. I deal
first with that portion of the judgment which analyses damages in tort cases
into compensatory damages, a subhead of which is said to be
aggravated damages and punitive damages, because I think
that this has been largely misunderstood a misunderstanding which
has fatally entered into the present case. The
judgment points out that in the reported English authorities, over some two
hundred years, there is no clear terminology used; aggravated, exemplary,
punitive, vindictive, retributory being adjectives which have been used, singly
or in combination, without distinction or difference. Then it is suggested that
in future there should be a clear and conscious distinction between
compensatory/aggravated and punitive (or exemplary) damages, the former
reflecting what the plaintiff has suffered materially or in wounded feelings,
the latter the jurys (or judges) views of the
defendants conduct. The statement of categories, in which alone
punitive damages may be given, follows from this. This
analysis is powerful and illuminating and undoubtedly represents a valuable
contribution to English judicial thought on the subject* but it has its dangers
in practical application, as the present case only too well shows. * cf. in the United States Fay v. Parker (1873) 53 N.H. 342-397 per Foster
J.: and as to textbook discussion, Mayne and Macgregor on Damages, 12th ed. (1961):
Streets Principles of the Law of Damages (1962) [*1114] English law does not work in an
analytical fashion; it has simply entrusted the fixing of damages to juries
upon the basis of sensible, untheoretical directions by the judge with the
residual check of appeals in the case of exorbitant verdicts. That is why the
terminology used is empirical and not scientific. And there is more than merely
practical justification for this attitude. For particularly over the range of
torts for which punitive damages may be given (trespass to person or property,
false imprisonment and defamation being the commonest) there is much to be said
before one can safely assert that the true or basic principle of the law of
damages in tort is compensation, or, if it is, what the compensation is for (if
one says that a plaintiff is given compensation because he has been injured,
one is really denying the word its true meaning) or, if there is compensation,
whether there is not in all cases, or at least in some, of which defamation may
be an example, also a delictual element which contemplates some penalty for the
defendant. It cannot lightly be taken for granted, even as a matter of theory,
that the purpose of the law of tort is compensation, still less that it ought
to be, an issue of large social import, or that there is something
inappropriate or illogical or anomalous (a question-begging word) in including
a punitive element in civil damages, or, conversely, that the criminal law,
rather than the civil law, is in these cases the better instrument for
conveying social disapproval, or for redressing a wrong to the social fabric,
or that damages in any case can be broken down into the two separate elements.
As a matter of practice English law has not committed itself to any of these
theories: it may have been wiser than it knew. This is
not the place to argue out the general case for or against punitive damages in
English law. The existence of the principle has its convinced opponents,
particularly, I understand, in Scotland. The arguments against it
that it is an anomaly, that it brings a criminal element
into the civil law without adequate safeguards, that it leads to excessive
awards, an unmerited windfall for the plaintiff; these and others are by now
well known: they, and the counter-arguments are well summed up in Professor
Streets Principles of the Law of Damages (1962), pp. 33-34. Perhaps the
opponents have, marginally, the best of it in logic, but logic in excess has
never been the vice of English law and I am impressed, as I think was Lord Devlin,
with the fact that the principle has shown, and continues to show, its vitality
not only in England but in Australia, Canada and New Zealand, as well (though
there are special considerations there) as in the United States of America.
This is shown not only by reported cases. of which Canadian Provinces,
Australian States and New Zealand provide a number of modern examples *2, but
in the daily unreported practice of the courts. Its place in the law has been
endorsed by many eminent judges in terms which clearly recognise the punitive
element. The principle of punitive damages has been recognised by the High
Court of Australia on five occasions, by the Supreme Court of Canada and by the
Supreme Court of the United States of America. To my
mind the strongest argument against it is that English law already contains a
heavy, indeed exorbitant, punitive element in its costs FN*2 See, as to Canada, 48 Canadian Bar Review (1970) p.
373. [*1115] system;
contrast the United States where it is the absence of this (advocates
costs not being normally recoverable) which is invoked as a justification for
punitive damages. One or other must clearly be reformed, and it is Parliament
alone that can do it. I take
the discussion one step further, because the point is very relevant here. In
Lord Devlins opinion the distinction is made between aggravated
damages and punitive damages; it is said that many of the authorities are
really cases of aggravated damages though other words are used, that apart from
the exceptional cases included in the three categories, aggravated damages are
the appropriate and sufficient remedy. Although I doubt very much whether all
the cases can be explained in this way to do so seems to attribute a
high degree of confusion of thought or inaccuracy of expression to judges of
eminence there is attraction in the distinction. It has the
advantage, to some minds, of reducing the area of punitive
damages, and of bringing the remedy nearer to compensation. But
closer examination causes one to doubt whether the separation, otherwise than
in analysis, of compensatory from punitive damages does not involve some real
danger in practice. As Windeyer J. said in Uren v. John Fairfax & Son
Pty., 117 C.L.R.
118, 152: What the House of Lords has now done is, ... to
produce a more distinct terminology. Limiting the scope of terms that often
were not distinguished in application makes possible an apparently firm
distinctionbetween aggravated compensatory damages and exemplary or punitive
damages. How far the different labels denote concepts really different in
effect may be debatable. I suspect that in seeking to preserve the distinction
we shall sometimes find ourselves dealing more in words than ideas. (cf.
Salmond on Torts, 15th ed. (1969), which maintains the old
confusion.) The distinction does not in my belief greatly
correspond to what happens in reality. Take a common case: a man is assaulted,
or his land is trespassed upon, with accompanying circumstances of insolence or
contumely. He decides to bring an action for damages, he need not further
specify the claim. Is he suing for compensation, for injury to his feelings, to
teach his opponent a lesson, to vindicate his rights, or the strength
of the law, or for a mixture of these things? Most men would not ask
themselves such questions, many men could not answer them. If they could answer
them, they might give different answers. The reaction to a libel may be
anything from how outrageous to he has delivered
himself into my hands. The fact is that the plaintiff sues for
damages, inviting the court to take all the facts into consideration, and, if
he wins, he may ascribe his victory to all or any of the ingredients. As, again
Windeyer J. has said, at p. 150, the amount of a verdict is the
product of a mixture of inextricable considerations. Sedgwick
(Measure of Damages, 3rd ed. (1858)) said: Where either of these elements [sc. malice,
oppression etc.] mingle in the controversy, the law, instead of adhering to the
system, or even the language of compensation adopts a wholly different rule. It
permits the jury to give what it terms punitive, vindictive or exemplary
damages, in other words, it blends together the interests of society and [*1116] of the aggrieved individual and gives
damages not only to recompense the sufferer but to punish the offender. This
rule ... seems settled in England and in the general jurisprudence of [the
U.S.A.]. Lord
Atkin said just this in Ley v. Hamilton, 153 L.T. 384 in a passage (cited in other
opinions, vide that of Viscount Dilhorne) which, if any in modern times, is
clear and authoritative. Dixon C.J. endorsed the principle see
citation below as did the key passage in Halsburys Laws of
England,vol. 11, p. 223, cited by Lord Hailsham of St. Marylebone L.C. To
segregate the punitive element is to split the indivisible and to invite the
stock criticism (vide Street loc. cit.) that civil courts have no business to
impose fines. This is
of critical importance in practice. If the separation of damages into
compensatory/aggravated and punitive is carried through into the instruction to
the jury, there is the greatest possible risk of excessive awards, through
counting twice what is but a different facet of the same bad conduct. Lord
Devlin himself clearly understood this; the careful passage on p. 1232,
containing the if, but only if, prescription, provided his
antidote an effective one if judges can administer it in a timely
and effective way. My Lords,
I think there was much merit in what I understand was the older system, before Rookes
v. Barnard [1964]
A.C. 1129. I agree with the Court of Appeal that in substance, though not
perhaps philosophically or linguistically, this was clear and as explained
above I doubt if there was any confusion as to what the jury should do. It was
to direct the jury in general terms to give a single sum taking the various
elements, or such of them as might exist in the case, into account including
the wounded feelings of the plaintiff and the conduct of the defendant, but
warning them not to double count and to be moderate. A formula on these lines
commended itself to Dixon J. in Smiths Newspapers Ltd. v. Becker (1932) 47 C.L.R. 279, 300. What
amount of damages, he asked, is enough to serve at once as a
solatium, vindication and compensation to him and a requital to the
wrongdoer. An earlier example is the direction of Abbott J. in Sears
v. Lyons (1818) 2
Stark. 317: as evidence that modern practice corresponds I could not desire
more than the passage, based on considerable experience, in the judgment of
Salmon L.J. in this case [1971] 2 Q.B. 354, 387-388 cited in full by Viscount
Dilhorne and which I need not repeat. If judges were to act in this way, and
direct substantially as Salmon L.J. describes, I would see no basis for
ascribing to them any error in law. If, on the other hand, use were to be made
of the aggravated-punitive distinction, I would think that it is even more
necessary that the jury should be directed to give a single sum (Lord
Devlins exception to avoid a new trial is entirely laudable, but, I
respectfully think, risky). The direction to give a single sum should mean (the
necessity to say this illustrates again the dangers of the terminology) not
merely producing a single figure by way of verdict, but arriving in their
discussion at a single sum. It would be wrong, and a novelty in the law, that they
should, in the jury room, find separately the various elements pure
compensation, aggravated compensation and penalty and add them up to a total.
In no previous cited case, except in Loudon v. Ryder [1953] 2 Q.B. 202 (overruled by
Lord Devlin himself), was this done; it was directly discountenanced by Lord
Atkin in Ley v. Hamilton, 153 L.T. 384. [*1117] I regret
that this rather lengthy analysis has been necessary before I deal with the
present appeal: but in my view it is fundamental to a consideration of the
summing-up. The full
account of the trial which has been given in previous opinions enables me to
summarise. The critical stages were these (page references are to the appeal
record appendix, part II) of the printed case in the House of Lords: (1) The
jury were told that there were two aspects of damages, compensatory and
punitive. They were asked first to consider compensatory damages. They had read
to them a passage from the judgment of Pearson L.J. in McCarey v. Associated
Newspapers Ltd. (No. 2) [1965] 2 Q.B. 86 in which it was said in clear terms that if there
had been any high-handed, oppressive or contumelious behavior which increased
the mental pain and suffering caused by the defamation, this might be taken
into account (pp 91-93). (2) The
judge then pointed out that Captain Broome had suffered no actual pecuniary
loss: that he had not been shunned by his comrades: that the trial had been
conducted without exacerbation: but that what was said in the book might be
very wounding to his feelings (pp. 93-98). (3) The
learned judge then dealt with punitive damages by reference to the second
category in Rookes v. Barnard, cited the words of Widgery J. in Manson v. Associated
Newspapers Ltd.
[1965] 1 W.L.R. 1038 and said: You are being asked here not only to give
Captain Broome compensatory damages, that is, a reasonable sum for the injury
to his reputation and the exacerbation of his feelings; but in addition to fine
Cassells and Mr. Irving for having done what they have done ... You are really
in the position of a judge or a magistrate trying a criminal case; you have
got, so to speak, to fine the defendant (p. 101) (emphasis supplied) and he
gives examples of reasonable and unreasonable fines. Later he gives lengthy
directions relevant to the second category (was there a calculation to profit
etc.) and on the next day returns finally to damages (p. 137). (4) The
final direction as to damages consisted of the statement of questions for the
jury and explanation of them. The first question (No. 3) is What
compensatory damages do you award the plaintiff? The summing-up
continues: Then having decided what are the proper
additional (sic) compensatory damages you will go on and consider the fourth
question, namely, Has the plaintiff proved that he is entitled to
exemplary damages? and
directs the jury to consider this in relation separately to each defendant.
Lastly there is this passage: Then you see the last question under this heading,
What additional sum should be awarded him by way of exemplary
damages? Would you be good enough to underline the word
additional, because I want to know, and learned counsel
want to know, if you do decide to award punitive damages, how much more do you
award over and above the compensatory damage. [*1118] The
result of this was an award of £15,000 compensatory damages and
£25,000 as an additional sum for exemplary damages. My Lords,
I regret to have reached the conclusion that this verdict ought not to stand.
Apart from the reasons given by my noble and learned friend, Lord Diplock, with
which I respectfully agree, I think for myself that the separation of the
element of compensatory damages from that of punitive damages, brought about
through the interpretation placed on the second category and the application of
it, involving, as it did, the need to fix compensation (plus aggravation)
first, see if the case came within the category, and then fix a separate punitive
sum, is fundamentally wrong. It has brought about precisely the result which
was to be feared from breaking down the indivisible whole, namely, of fixing a
compensation figure swollen by aggravation and then adding a fine on top
a fine in this case exceeding greatly the aggravated compensation.
If the matter rested on the figures alone, I should find the greatest
difficulty in supporting. even with all the inhibitions properly felt against
substituting a judicial opinion for that of the jury, so large a punitive
element, particularly in a case such as this where the libel was considered to
be (I say nothing as to my own opinion) of a most wounding character, so that
the compensatory damages must necessarily include a large
punitive element. But when it is seen how the jury were
directed to calculate, and the direction was certainly clear and certainly and
visibly acted on, their figures become impossible to accept. In
argument the issue was put in the form whether the judges direction
complied with Lord Devlins if, but only if,
advice (p. 1228). I think that it certainly did not. The dangers of separating
the compartments (compensatory damages and punitive damages) in so watertight a
way are so great, as I have tried to explain, indeed, in my opinion, so wrong
in principle that I doubt very much whether any instructions, in a difficult
case, could avoid them. That is why I think that any interpretation placed on Rookes
v. Barnard which
requires this separation, or authorises it, and the introduction of the profit
gateway which almost compels it, ought to be discarded. But however that may
be, the directions given fall far short of what was necessary I say
this without any criticism of the learned judge who was merely following Rookes
v. Barnard as
previously applied by the Court of Appeal. When all is said, the warning to the
jury against the danger was contained in the word
additional in question 4. I think this was not enough, for
they had been told that they could inflict a fine. For these
reasons, without committing myself to any particular figure if we were called
upon to substitute one, I agree with the conclusion of my noble and learned
friend, Lord Diplock, as to the necessity for a new trial on the question of
punitive damages. I must
add one other point. This is the question of a joint award of damages against
two wrongdoers, publisher and author. There is no doubt that the existing law
is ill adapted to deal fairly with a case where guilt of
joint defendants is unequal. But it is clear enough what the law is: it is
stated by Lord Hailsham of St. Marylebone L.C. in terms which I need not
repeat. In the Court of Appeal Lord Denning M.R. said that the jury were free
to decide whether to fix punitive damages at the highest figure, the lowest
figure, or at a figure between the two and I fear that the jury may well have
proceeded on this somewhat libertarian view of the law. One may [*1119] escape from the conclusion that this
vitiates the verdict by assuming that the two defendants were equally
guilty, but I am not prepared to make this assumption or to
ascribe a view to that effect to the jury. I think that the jury must have
been, at best, confused, at worst misled by the direction, and I cannot accept
that acquiescence by counsel validates the defect. I must
now deal as briefly as I can with other aspects of the judgment in Rookes v.
Barnard. I deal
first with its effect on the law of damages for defamation. I am far
from convinced that Lord Devlin ever intended to alter the law as to damages
for defamation or intended to limit punitive damages in defamation actions to
cases where a profit motive is shown. (I use this
compendiously for the formula in his second category.) I summarise the reasons: (a)
Defamation is normally thought of as par excellence the tort when punitive
damages may be claimed. It was so presented in argument by counsel for the
respondent (arguing against punitive damages) and he was an acknowledged expert
in the subject. Every practitioner and every judge would take this view. (b) Lord
Devlins passage where he sets up his second category does not refer
to any defamation case, but to three other miscellaneous cases which he
illuminatingly bases in the profit motive. He makes merely an incidental
reference to libel where he says the profit motive is always a factor, not, it
should be observed, a condition. (c) It is
difficult to believe that Lord Devlin was intending to limit the scope of
punitive damages in defamation actions so as to exclude highly malicious or
irresponsible libels. At least if he intended to do so at a time when the media
of communication are more powerful than they have ever been and certainly not
motivated only by a desire to make money, and since elsewhere the judgment
shows him conscious of the need to sanction the irresponsible, malicious or
oppressive use of power, I would have expected some reasons to be given. If we
cannot interpret his judgment as leaving libel outside category 2 as a separate
case, well known to everyone, in which punitive damages may be given in
familiar circumstances and as stating category 2 as a qualification for other
cases, hitherto not explained or rationalised, then since the disposal of
defamation actions was there dealt with briefly, I would say incidentally, and
obiter, I consider that in this case where we are directly concerned with such
an action we should disagree with it. This
would leave the law as I understand it to be in Australia and Canada, countries
where, in this respect, there is not known to me to be any such difference in
social conditions as to call for the recognition, by this
House, judicially, of a divergent law. If changes are to be made, they should
be made, after proper investigation, by Parliament. I would
add, with reference to this point, that the present case well illustrates the
irrationality of the supposed new principle. For if the profit motive is
essential for the recovery of punitive damages, one would expect the damages
given to bear some relation to the supposed profit and/or to the means of the
offender: the idea (if there is any logic in the requirement) must be to take
the profit out of wrongdoing. Yet there was not, and in many such cases cannot
be, any real consideration of the likely profit or of [*1120] the offenders means. There
was no evidence what these might be and the jury were given no guidance. How,
then, could the punitive £25,000 be other than an arbitrary guess? If
one replies that it represents the jurys view of the
defendants conduct (as it probably did) what purpose is served by
introducing the profit motive gateway? Finally,
as to other torts as to which, before Rookes v. Barnard, punitive damages could be given
but on which some restriction is evidently intended to be placed by the
judgment. That this House, as a matter of law, or of legal policy, was entitled
to restrict the scope of punitive damages I have, with all respect to the Court
of Appeal, no doubt and, whatever my own reservations as to the wisdom of the
policy, I should feel myself obliged to accept a new statement of principle if
it were clear, consistent and workable and intelligibly related to the main stream
of authority. That it was not entirely clear, appears well enough from the
opinions in the present case: and I cannot entirely blame the Court of Appeal
for attempting to escape from it, just as one may sympathise with a customer
when he finds his new suit almost at once requiring alteration, or patching,
for putting it aside and reaching for his old tweeds. There is not perhaps much
difficulty about category 1: it is well based on the cases and on a principle
stated in 1703 if public officers will infringe
mens rights, they ought to pay greater damages than other men to
deter and hinder others from the like offences: Ashby v. White (1703) 2 Ld.Raym. 938, 956 per
Holt C.J. Excessive and insolent use of power is certainly something against
which citizens require as much protection today: a wide interpretation of
government which I understand your Lordships to endorse
would correspond with Holt C.J.s public officers
and would partly correspond with modern needs. There would remain, even on the
most liberal interpretation, a number of difficulties and inconsistencies as
pointed out by Taylor J. in Uren v. John Fairfax & Sons Pty. Ltd., 117 C.L.R. 118. I have
more difficulty with the commonplace types of trespass or assault accompanied
by insult or contumely, which, even more than first
category cases touch the life of ordinary men and occupy the county
courts. Although Lord Devlin studiously refrains from overruling earlier cases
(other than Loudon v. Ryder [1963] 2 Q.B. 202) which undoubtedly proceeded on, or
contained, a punitive element, his opinion has been understood as laying down
that in future such cases cannot, unless the profit motive
is present, be treated as cases for punitive damages but only as cases for
aggravated damages. The phrase used has been aggravated damages can
do the work of punitive damages. I
understand that a majority of your Lordships, for possibly differing reasons,
are satisfied with this, so it will remain the law in this country. But, if
only in fairness to the Court of Appeal with whose approach to this matter I
agree, I must state very briefly why I feel some difficulty. I am far
from clear how juries, or judges, are intended to act in the future. Are they
to take it that the law has been changed, so that (absent a profit motive) only
compensatory damages can be given, plus an element for
aggravation if that is proved? I fear that there will be difficulty
in seeing how far earlier cases, or Commonwealth cases, are now authority and
that there will be much argument whether a particular case was one of
aggravated or punitive damages or of
both. Alternatively, [*1121] if
aggravated damages are to do the work of punitive
damages and if it is to be supposed that juries, or judges, will
continue giving damages much as before, then nothing has been gained by
changing the label and we are indulging in make belief and encouraging
fictional pleading. The whole point is well brought out by Pearson L.J. in McCarey
v. Associated Newspapers Ltd. (No. 2) [1965] 2 Q.B. 86, 105. If the compensatory
principle is accepted, punitive damages must not be allowed to creep
back into the assessment in some other guise. I must confess to
sympathy with the Court of Appeals preference for the older system
and with the objections to the new stated by Taylor J. in Urens case,
the weight of which clearly impressed the Privy Council. Their validity has
been endorsed by cases post-Rookes v. Barnard in Australia, Canada and New
Zealand. I share their doubt whether we have yet arrived at a viable
substitute. But I
note with satisfaction and agreement the opinion expressed by the noble and
learned lord on the Woolsack that the relevant passage in Lord
Devlins judgment, which he cites, should be read sensibly as a whole
together with the authorities on which it is based. This may provide a sound
basis for redevelopment of the law. My Lords,
on all other points not expressly dealt with in this opinion I wish to express
my concurrence with that of Lord Hailsham of St. Marylebone L.C. I regret to
differ from him in thinking that the appeal should be allowed on the grounds I
have stated. LORD
DIPLOCK. My
Lords, the trial of this action proceeded, correctly, on the basis that as
respects the measure of the damages which the jury might award, the judge was
bound to direct them in accordance with the law as laid down by this House in Lord
Devlins speech in Rookes v. Barnard [1964] A.C. 1129. I agree
with all your Lordships that there was material upon which the jury were
entitled to find that the conduct of each of the defendants brought the case
within Lord Devlins second category of cases in which exemplary or,
as I would have preferred to call them, punitive damages may be awarded. The
jury did so find by special verdicts. That part of the judges
summing-up in which he directed them as to the matters for their consideration
in arriving at their findings on this issue as respects each of the defendants
cannot be faulted. It was,
however, also incumbent upon the judge to instruct the jury as to the measure
of the damages which they might award if they reached the conclusion that the
case as against each of the defendants was one in which they were not precluded
from awarding punitive damages. On this aspect of the case there were two
principles of law which should have been stated clearly to the jury. Neither
was self-evident. The first
was that, even if the jury found that the case came within Lord
Devlins second category and that the defendants conduct
merited punishment, it did not necessarily follow that they must award as
damages to the plaintiff a greater sum than was sufficient to compensate him
for all the harm and humiliation that he had suffered as a consequence of the
defendants tortuous acts. They should take into account as part of
the punishment inflicted on the defendants any sum (in the result
£15,000) which they were minded to award to the plaintiff as
compensatory damages; and only if they [*1122]
thought that sum to be inadequate in itself to constitute sufficient punishment
were they to award such additional sum as would, when added to the compensatory
damages, amount to an appropriate penalty for the defendants improper
conduct. The
second was that if the jury thought that the conduct of one of the joint
defendants deserved to be penalised by a lesser sum than the conduct of the
other, the most that the jury were entitled to award against the defendants was
that lesser sum, if it were to exceed the amount which they were minded to
award as compensatory damages. I have
the misfortune to differ from the majority of your Lordships in that I find it
impossible to discover in the language of the summing-up any clear statement of
either of these principles. At best I think that when the jury retired they
must have been confused as to how the punitive damages, if any, were to be
assessed. At worst I think that they may well have thought that they were to
arrive at a sum which they thought was an appropriate penalty for the
defendants conduct and to add it to any sum awarded as compensatory
damages. My Lords,
I do not think that on this vital question of the assessment of exemplary
damages the jury were adequately directed. I am fortified in this view by my
conviction that, if properly directed, no reasonable jury could possibly have
reached the conclusion that the appropriate penalty to inflict on the less
culpable of the defendants was £40,000 for publishing a libel of
which the victim was in their view adequately recompensed at £15,000
for all the harm and humiliation that it had caused to him. A penalty
of £40,000 is, I believe, very much larger than any of your Lordships
would have thought it appropriate to inflict upon the defendants. I doubt if
any of your Lordships would have hesitated to interfere with it if it had been
awarded by a judge sitting alone. He would have been vulnerable because he
would have given his reasons. Shibboleths apart, there survive to-day two valid
reasons why an appellate court should be more reluctant to disturb an
assessment of damages by a jury than an assessment by a judge. The first is
applicable to all kinds of actions. It is that a judge articulates his findings
on the evidence and his reasoning, whereas a jury state the result of their
findings and their reasoning but otherwise are dumb. In considering whether an award
of damages by a jury is excessive an appellate court cannot do other than
assume that the jury made every finding of fact and drew every inference that
was open to it on the evidence as favorably as possible to the plaintiff and as
adversely as possible to the defendant. In the instant case, however, this
handicap to an appellate courts ability to do justice is palliated by
the facts: that there was no conflict of evidence for them to resolve
for the defendants called none, and that the jury were given a
partial gift of speech. By their special verdict this House has been told that
they considered that the plaintiff would be fully compensated by
£15,000. The second reason for reluctance to interfere with a
jurys award of damages applies particularly to actions for
defamation. It is that, unless the parties otherwise agree, the consequence of
setting aside the jurys verdict must be a new trial before another
jury. This involves the parties, through no fault of their own, in greatly
increased costs which, particularly in libel actions, are, to the discredit of
our legal system, out of all proportion even to the large compensatory damages
[*1123] awarded in the instant
case. For my part, I should not be deflected from setting aside a
jurys verdict as unreasonable by the fear, sometimes expressed by
appellate judges, that another unreasonable jury might make a similar
unreasonable award of damages on the new trial. So far as I know this has never
happened yet. But the consideration of the costs involved is one which it would
be unrealistic and unjust to ignore. In the instant case, however, the parties
agreed that this House should assess the damages in the event of the
jurys verdict being set aside. No more costs would be incurred if the
appeal were allowed than if it were dismissed though the incidence
of them on the parties might be different. It may be
said, and not implausibly, that there is nothing in the training or experience
of a judge which makes him fitter than a jury to determine the pecuniary
compensation which a plaintiff should receive for a reputation that is damaged
or feelings that are hurt. And there may be safety in numbers. But it runs
counter to the basis of our criminal law, in which the jury determine guilt and
the judge determines the appropriate punishment, to treat the jury as better
qualified than a judge to assess the pecuniary penalty which a defendant ought
to pay for conduct which merits punishment. On an appeal from the jurys
award of £40,000 which I know to be compensatory to the extent of
£15,000 only, I should approach it in the same way as I should
approach a fine of £40,000 imposed by a judge in a criminal
prosecution. Even if I thought the jury had been given an adequate direction by
the judge, I would have set the award aside and substituted an award of
£20,000. I have
thought it right to express my own minority opinion as to what the result of
this appeal should be. It is that with which the parties are primarily
concerned and it is they who are paying for it. It is, however,
inherent in our legal system that, owing to the manner in which the Court of
Appeal dealt with the instant case, the unsuccessful party is also paying for
the ruling of this House upon two questions of law of much more general
importance. The first is as to the effect of the decision in Rookes v.
Barnard [1964]
A.C. 1129 on the assessment of damages for defamation and whether that decision
ought to be followed. The second is as to the propriety of the manner in which
the Court of Appeal, as an intermediate appellate court, dealt with the
decision of this House in Rookes v. Barnard. To these two topics I now turn. In Rookes
v. Barnard the
plaintiffs claim was for damages for the tort of intimidation At the
trial the judge had summed up to the jury in terms which left it open to them
to award exemplary damages. There was a cross-appeal against the amount of
damages. upon which this House heard separate and lengthy argument. It was
necessary as a matter of decision of the cross-appeal for this House to
determine whether the facts in Rookes v. Barnard brought it within a category of
cases in which exemplary damages were recoverable at common law. This House
determined that they did not and ordered a new trial. There
were two different processes of reasoning by which it would have been possible
to reach this conclusion of law. One, which was not adopted by this House, was
to hold that the particular tort of intimidation was one in which the common
law did not permit of exemplary damages. The other, which was adopted by this
House, was to state the categories of cases in [*1124]
which alone exemplary damages might be awarded at common law and to determine
whether the facts in Rookes v. Barnard brought it within one of these categories. Lord
Devlins speech upon the cross-appeal in Rookes v. Barnard, in which all the five members
who heard the appeal explicitly concurred, was a deliberate attempt by this
House to do two things. (A) As a matter of legal exposition, to formulate the
rationale of the assessment of damages for torts in which damages are
at large. (B) As a matter of legal policy, to restrict the
categories of cases in which damages can be awarded against a defendant in
order to punish him, to those in which this method of inflicting punishment
still serves some rational social purpose today. Lord
Devlins speech, however, does not follow the simple arrangement of
exposition followed by choice of policy. He starts by formulating three heads
of damages. The purpose of two of them is to compensate the plaintiff; that of
the third is to punish the defendant. This formulation is followed by an
analysis of the previous authorities. These authorities lead to the policy
decision to accept two categories of cases in which exemplary damages may be
recovered and, proleptically, to reject other categories of cases in which it
had previously been thought that damages might be awarded in order to punish
the defendant. He then reverts to exposition of some considerations which
follow from the purpose served by exemplary damages and which should be borne
in mind when awards of exemplary damages are made. Finally he reverts to an
analysis of the previous authorities for the purpose of completing the policy
decision by over-ruling those which were authority for the award of exemplary
damages where the injury to the plaintiff had been aggravated by malice or by
the manner of doing the injury, that is, the insolence or arrogance by which it
was accompanied. It is,
however, convenient for the purposes of the instant appeal to deal with
exposition and with policy separately. The three
heads under which damages are recoverable for those torts for which damages are
at large are classified under three heads. (1) Compensation
for the harm caused to the plaintiff by the wrongful physical act of the
defendant in respect of which the action is brought. In addition to any
pecuniary loss specifically proved the assessment of this compensation may
itself involve putting a money value upon physical hurt, as in assault, upon
curtailment of liberty, as in false imprisonment or malicious prosecution, upon
injury to reputation, as in defamation, false imprisonment and malicious
prosecution, upon inconvenience or disturbance of the even tenor of life, as in
many torts, including intimidation. (2) Additional compensation for the injured
feelings of the plaintiff where his sense of injury resulting from the wrongful
physical act is justifiably heightened by the manner in which or motive for
which the defendant did it. This Lord Devlin calls aggravated
damages. (3) Punishment of the defendant for his anti-social behavior
to the plaintiff This Lord Devlin calls exemplary damages.
I should have preferred the alternative expression punitive
damages to emphasise the fact that their object is not to compensate
the plaintiff but to punish the defendant and to deter him, and perhaps others,
from committing similar torts. To avoid confusion I have, [*1125] however accepted the lead of Lord
Hailsham of St. Marylebone L.C. in adhering to Lord Devlins adjective
exemplary. It may
seem remarkable that there had not previously been any judicial analysis, even
as elementary as this, of the constituent elements of the compound
damages at large. But it has to be remembered that at
common law the assessment of damages was the exclusive function of a jury, and,
despite growing exceptions from the mid-nineteenth century onwards, nearly all
actions for torts in which damages were at large were tried by jury until after
1933. The assessment of damages was an arcanum of the jury box into which
judges hesitated to peer; and it does not appear to have been their practice to
give any direction to the jury as to how they should arrive at the amount of
damages they should award, beyond some general exhortation to do their best in
a matter which was peculiarly within their sphere. What is
disclosed by an examination of previous judgments since the eighteenth century,
given upon applications for a new trial on the grounds that the award of a jury
was too large or too small, is a confusion of language and consequently of
thought as to what were the constituent elements in an award of damages at
large. In particular there is a complete failure to distinguish between
aggravated and exemplary damages in cases where the malice of the defendant or
the manner in which he did the wrongful act had both increased the injury to
the plaintiffs feelings and aroused the indignation of the jury
themselves. In
addition to the cases specifically referred to by Lord Devlin in Rookes v.
Barnard, your
Lordships have been referred to many others in the course of the argument in
the instant appeal. They serve but to confirm the confused state of the law
upon this subject before 1964. The tort
of defamation, to which Lord Devlin made only a passing reference in Rookes
v. Barnard, has
special characteristics which may make it difficult to allocate compensatory
damages between head (1) and head (2). The harm caused to the plaintiff by the
publication of a libel upon him often lies more in his own feelings, what he
thinks other people are thinking of him, than in any actual change made
manifest in their attitude towards him. A solatium for injured feelings,
however innocent the publication by the defendant may have been, forms a large
element in the damages under head (1) itself even in cases in which there are no
grounds for aggravated damages under head (2). Again the
harm done by the publication, for which damages are recoverable under head (1)
does not come to an end when the publication is made. As Lord Atkin said in Ley
v. Hamilton, 153
L.T. 384, 386: It is impossible to track the scandal, to know what
quarters the poison may reach. So long as its withdrawal is not
communicated to all those whom it has reached it may continue to spread. I
venture to think that this is the rationale of the undoubted rule that
persistence by the defendant in a plea of justification or a repetition of the
original libel by him at the trial can increase the damages. By doing so he
prolongs the period in which the damage from the original publication continues
to spread and by giving to it further publicity at the trial, as in Ley v.
Hamilton, extends
the quarters that the poison reaches. The defendants conduct between
the date of publication and the conclusion of the trial may thus increase the
damages under head (1). [*1126] In this
sense it may be said to aggravate the damages recoverable
as, conversely, the publication of an apology may mitigate
them. But this is not aggravated damages in the sense that
that expression was used by Lord Devlin in head (2). On the other hand the
defendants conduct after the publication may also afford cogent
evidence of his malice in the original publication of the libel and thus
evidence upon which aggravated damages may be awarded under
head (2) in addition to damages under head (1). But although considerations
such as these may blur the edges of the boundary between compensatory damages
under head (1) and compensatory damages under head (2) in the case of defamation,
they do not affect the clear distinction between the concept of compensatory
damages and the concept of exemplary damages under head (3). My Lords,
the major clarification of legal reasoning to be found in the expository part
of Lord Devlins speech in Rookes v. Barnard was the recognition, first, that
the award of a single sum of money as damages for tort, while it must always
perform the function of giving to the plaintiff what he deserves to receive to
compensate him fully for the harm done to him by the defendant, may in
appropriate cases also perform the quite different function of fining the
defendant what he deserves to pay by way of punishment; and secondly, that even
in those appropriate cases, it is only if what the defendant deserves to pay as
punishment exceeds what the plaintiff deserves to receive as compensation, that
the plaintiff can be also awarded the amount of the excess. This is a windfall
which he receives because the case happens to be one in which exemplary damages
may be awarded. It is not
necessary to dwell upon the three considerations which Lord Devlin referred to
as arising from the nature and function of punitive damages. The first
consideration qualifies the categories of cases in which exemplary damages may
be awarded. The plaintiff must himself have been the victim of the conduct of
the defendant which merits punishment: he can only profit from the windfall if
the wind was blowing his way. The second consideration is relevant to the
attitude of an appellate court to a jurys assessment of exemplary
damages. I have already taken it into account in forming my conclusion that the
jurys award of £40,000 ought to be set aside. The third
conclusion relates to the relevance of the defendants means to any
assessment of punitive damages in excess of the amount required to compensate
the plaintiff. These
three considerations are followed by the crucial exposition of the way in which
a jury should be directed in a case in which it is open to them to award
punitive damages. I have already dealt with this in the first criticism which I
have made of the summing-up at the trial in the instant case. It should
perhaps be pointed out that Lord Devlin did not suggest that in a case which
clearly came within a category which justified an award of exemplary damages
the jury should be invited to make separate awards in respect of the
compensatory and the punitive element, although no doubt a judge sitting alone
should do so. It was only in cases where it might be doubtful whether exemplary
damages were permissible that he suggested that special verdicts splitting the
total award might serve a useful purpose in avoiding the necessity of a new
trial in the event of appeal. It has
not been contended that those parts of Lord Devlins speech [*1127] which expounded the rationale of the
award and the assessment of exemplary damages in those cases in which they
could be recovered did not serve a useful purpose which lay well within the
functions of this House in its judicial capacity. It brought some order out of
chaos, some light and reason into what was previously a dark and emotive branch
of the common law. What has been criticised is the decision of legal policy to
restrict the categories of cases in which exemplary damages may be awarded. If the
common law stood still while mankind moved on, your Lordships might still be
awarding bot and wer to litigants whose kinsmen thought the feud to be outmoded
though you could not have done so to the plaintiff in the instant
appeal, because defamation would never have become a cause of action. The
common law would not have survived in any of those countries which have adopted
it, if it did not reflect the changing norms of the particular society of which
it is the basic legal system. It has survived because the common law subsumes a
power in judges to adapt its rules to the changing needs of contemporary
society to discard those which have outlived their usefulness, to
develop new rules to meet new situations. As the supreme appellate tribunal of
England, your Lordships have the duty, when occasion offers, to supervise the
exercise of this power by English courts. Other supreme appellate tribunals
exercise a similar function in other countries which have inherited the English
common law at various times in the past. Despite the unifying effect of that
inheritance upon the concept of mans legal duty to his neighbour, it
does not follow that the development of the social norms in each of the
inheritor countries has been identical or will become so. I do not think that
your Lordships should be deflected from your function of developing the common
law of England and discarding judge-made rules which have outlived their
purpose and are contrary to contemporary concepts of penal justice in England,
by the consideration that other courts in other countries do not yet regard an
identical development as appropriate to the particular society in which they
perform a corresponding function. The fact that the courts of Australia, of New
Zealand and of several of the common law provinces of Canada have failed to
adopt the same policy decision on exemplary damages as this House did for
England in Rookes v, Barnard affords a cogent reason for re-examining it; but
not for rejecting it if, as I think to be the case, re-examination confirms
that the decision was a step in the right direction though it may
not have gone as far as could be justified. The award
of damages as the remedy for all civil wrongs was in England the creature of
the common law. It is a field of law in which there has been but little
intervention by Parliament. It is judge-made law par excellence. Its original
purpose in cases of trespass was to discourage private revenge in a primitive
society inadequately policed, at least as much as it was to compensate the
victim for the material harm occasioned to him. Even as late as 1814 Heath J.
felt able to say: It goes to prevent the practice of duelling, if
juries are permitted to punish insult by exemplary damages: Merest
v. Harvey (1814)
5 Taunt. 442, 444. No one
would today suggest this as a justification for rewarding the victim of a tort
for refraining from unlawful vengeance on the wrong-doer. Conversely, the
punishment of wrong-doers today is regarded as the function of the state to be
exercised subject to safeguards for the accused [*1128]
assured to him by the procedure of the criminal law and with the appropriate
punishment assessed by a dispassionate judge and not by a jury roused to indignation
by partisan advocacy. One of the most significant and humane developments in
English law over the past century and a half has been the increasing protection
accorded to the accused under our system of criminal justice. As my noble and
learned friend, Lord Reid has pointed out no similar protection is available to
a defendant as a party to a civil action. So the
survival into the latter half of the twentieth century of the power of a jury
in a civil trial to impose a penalty on a defendant simply to punish him had
become an anomaly which it lay within the power of this House in its judicial
capacity to restrict or to remove; though it would have been anticipating by
two years the recent change in the practice of this House if to have done so
would have involved overruling one of its own previous decisions. Lord
Devlins analysis of previous decisions disclosed three kinds of cases
in which the courts had recognised the right of a jury to award damages by way
of punishment of the defendant in excess of what was sufficient to compensate
the plaintiff for all the harm occasioned to him. The categorisation was new.
Its purpose has, I think, been misunderstood. No one suggests that judges, when
approving awards of exemplary damages in particular cases in the past
consciously differentiated between one kind of case in which exemplary damages
could be awarded and another. They dealt with them all as falling within a
single nebulous class of cases in which the defendants conduct was
such as to merit punishment. The purpose of Lord Devlins division of
them into three categories was in order to distinguish between factual
situations in which there was some special reason still relevant in modern
social conditions for retaining the power to award exemplary damages, and
factual situations in which no such special reason still survived. With this
end in view Lord Devlin extracted from the single nebulous class which appeared
to be all that had been consciously recognised as justifying an award of
exemplary damages at common law, two categories of cases in which this House
decided that there were special reasons why the power to award exemplary
damages should be retained. These two (apart from cases where exemplary damages
are authorised by statute) are generally referred to as the
categories. But there is also to be found in the previous cases a
third category, consisting of the remainder of the single nebulous class in
which this House decided that the anomalous practice of awarding exemplary
damages in civil proceedings ought to be discontinued. The first
category comprised cases of abuse of an official position of authority. This
would seem to be analogous to the civil law concept of dŽtournement de paver,
with the imitation that it must involve the commission of an act which would be
tortuous if done by a private individual. The cases cited are two hundred years
old. It would not appear that the actual conduct of the defendant himself need
justify an award of aggravated damages. In Huckle v. Money (1763) 2 Wils. 205 the defendant
appears to have treated the plaintiff with courtesy and consideration. The
servant was the whipping-boy for the political head of the government. [*1129] Nor need he have known that his act was
wrongful. Money, a mere subordinate official, can hardly have been expected to
know that general warrants issued by the Secretary of State were illegal. In Wilkes
v. Wood (1763)
Lofft. 1, however, it was said that a belief that the act impugned was lawful
could be pleaded in mitigation of damages. The
second category was of cases where an act known to be tortuous was committed in
the belief that the material advantages to be gained by doing so would outweigh
any compensatory damages which the defendant would be likely to have to pay to
the plaintiff. This would seem to be analogous to the civil law concept of
enrichessement indue subject to a similar limitation that the act resulting in
enrichment must be tortuous. The cases cited by Lord Devlin do not include
underground trespass to minerals, which provide the classic examples in the
nineteenth century of this category of tort. There is high authority both in
this House (Livingstone v. Rawyards Coal Co. (1880) 5 App.Cas. 25) and in the
Privy Council (Bulli Coal Mining Co. v. Osborne [1899] A.C. 351) that in the case
of wilful clandestine trespass to minerals the damages may be assessed at the
market value of the minerals without deduction for the cost of working an award
which would exceed both the loss to the plaintiff and the profit to the
defendant from his wrongful act. The excess is punishment. The third
and rejected category is numerically by far the largest.
It consists of cases in which the manner in which the tort has been committed
has attracted a whole gamut of dyslogistic judicial epithets such as wilful,
wanton, high-handed, oppressive, malicious, outrageous; particularly those
where the defendants manner of doing the tortuous act has been
characterised by arrogance or insolence or, in the preferred Australian phrase,
a contumelious disregard of the plaintiffs rights. These are nearly
all cases in which aggravated damages by way of
compensation apart from punishment can be awarded and much of the previous confusion
about exemplary damages stems from this. Apart
from this confusion or perhaps because of it, I do not doubt that it was the
general understanding of English judges and of those who practiced in the
English courts that exempLary damages by way of punishment of the defendant as
well as aggravated damages by way of compensation of the plaintiff could be
awarded in cases which fall within the third category. Lord Devlins
speech in Rookes v. Barnard explicity acknowledges this. It was an understanding
which he himself had shared. He had given effect to it in his own summing-up in
Loudon v. Ryder
[1953] 2 Q.B. 202. The
decision of legal policy which this House made in Rookes v. Barnard was to retain the first two
categories and to discard the third as obsolete. In
describing the two categories retained I have deliberately departed from the
ipsissima verb a of Lord Devlins description of them. His statement
of the categories was not intended as a definition to be construed as if it
were enacted law. They were retained because this House considered that there
were circumstances in which a power to award exemplary damages still served a
useful social purpose and the descriptive words must be understood in the light
of the social purpose which they were designed to serve. My Lords,
had I been party to the decision in Rookes v. Barnard I doubt [*1130] if I should have considered it still
necessary to retain the first category. The common law weapons to curb abuse of
power by the executive had not been forged by the mid-eighteenth century. In
view of the developments, particularly in the last twenty years, in adapting
the old remedies by prerogative writ and declaratory action to check unlawful
abuse of power by the executive, the award of exemplary damages in civil
actions for tort against individual government servants seems a blunt
instrument to use for this purpose to-day. But if it is to be rotunda question
which cannot arise in the instant appeal the reasoning which
supports its retention would not confine it to torts committed by servants of
central government alone. It would embrace all persons purporting to exercise
powers of government, central or local, conferred upon them by statute or at
common law by virtue of the official status or employment which they held. I have no
similar doubts about the retention of the second category. It too may be a
blunt instrument to prevent unjust enrichment by unlawful acts. But to restrict
the damages recoverable to the actual gain made by the defendant if it exceeded
the loss caused to the plaintiff, would leave a defendant contemplating an
unlawful act with the certainty that he had nothing to lose to balance against
the chance that the plaintiff might never sue him or, if he did, might fail in
the hazards of litigation. It is only if there is a prospect that the damages
may exceed the defendants gain that the social purpose of this
category is achieved to teach a wrong-doer that tort does not pay. To bring
a case within this category it must be proved that the defendant, at the time
that he committed the tortuous act, knew that it was unlawful or suspecting it
be unlawful deliberately refrained from taking obvious steps which, if taken,
would have turned suspicion into certainty. While, of course, it is not
necessary to prove that the defendant made an arithmetical calculation of the
pecuniary profit he would make from the tortuous act and of the compensatory
damages and costs to which he would render himself liable, with appropriate
discount for the chances that he might get away with it without being sued or
might settle the action for some lower figure, it must be a reasonable
inference from the evidence that he did direct his mind to the material
advantages to be gained by committing the tort and came to the conclusion that
they were worth the risk of having to compensate the plaintiff if he should
bring an action. I see no
reason for restoring to English law the anomaly of awarding exemplary damages
in the third category of cases. If malice with which a wrongful act is done or
insolence or arrogance with which it is accompanied renders it more distressing
to the plaintiff his injured feelings can still be soothed by aggravated
damages which are compensatory. I share the scepticism expressed by Windeyer J.
in Uren v. John Fairfax & Sons Pty. Ltd., 117 C.L.R. 118, 151-152 as to
whether what was in the defendants mind at the time he committed the
tort really increases the injury to the plaintiffs feeling. I think
too that an evanescent sense of grievance at the defendants conduct
is often grossly over-valued in comparison with a lifelong deprivation due to
physical injuries caused by negligence. But my own equable temperament may be
idiosyncratic and the law of aggravated damages does not
call for closer examination in the instant appeal. Finally,
on this aspect of the case I would express my agreement with the [*1131] view that Rookes v. Barnard was not intended to extend the
power to award exemplary or aggravated damages to particular torts for which
they had not previously been awarded; such as negligence and deceit. Its
express purpose was to restrict, not to expand, the anomaly of exemplary
damages. My Lords,
there is little that I should wish to add to what Lord Hailsham of St.
Marylebone L.C. and my noble and learned friend, Lord Reid, have already said
about the way the instant case was treated in the Court of Appeal. It is
inevitable in a hierarchical system of courts that there are decisions of the
supreme appellate tribunal which do not attract the unanimous approval of all
members of the judiciary. When I sat in the Court of Appeal I sometimes thought
the House of Lords was wrong in over-ruling me. Even since that time there have
been occasions, of which the instant appeal itself is one, when, alone or in
company, I have dissented from a decision of the majority of this House. But
the judicial system only works if someone is allowed to have the last word and
if that last word, once spoken, is loyally accepted. The Court
of Appeal found themselves able to disregard the decision of this House in Rookes
v. Barnard by
applying to it the label per incuriam. That label is relevant only to the right
of an appellate court to decline to follow one of its own previous decisions,
not to its right to disregard a decision of a higher appellate court or to the
right of a judge of the High Court to disregard a decision of the Court of
Appeal. Even if the jurisdiction of the Court of Appeal had been co-ordinate
with the jurisdiction of this House and not inferior to it the label per
incuriam would have been misused. The reasons for applying it were said to be:
first, that Lord Devlin had overlooked two previous decisions of this House in E.
Hulton & Co. v. Jones [1910] A.C. 20 and Ley v. Hamilton, 153 L.T. 384; secondly, that the
two categories selected as those in which the power to
award exemplary damages should be retained had not been previously suggested by
counsel in the course of their arguments. I find
the suggestion that E. Hulton & Co. v. Jones, the leading case on innocent
defamation, is to be regarded as an authority for an award of exemplary
damages, quite unacceptable. Ley v. Hamilton was discussed at some length in
Lord Devlins speech. I myself agree with his interpretation of Lord
Atkins speech. The Court of Appeal did not and in this they now have
the powerful support of my noble and learned friend, Viscount Dilhorne. But,
however wrong they may have thought Lord Devlin was, they cannot have thought
that he had overlooked Ley v. Hamilton. The
second reason I find equally unconvincing. On matters of law no court is
restricted in its decision to following the submissions made to it by counsel
for one or other of the parties. After listening to a lengthy argument which
embraced a full examination of a large and representative selection of the
relevant previous authorities this House was fully entitled to come to a
conclusion of law and legal policy different from that which any individual counsel
had propounded. With
regard to the amount of exemplary (and also aggravated) damages which may be
awarded where the plaintiff elects to sue defendants jointly for a single tort,
I agree with Lord Hailsham of St. Marylebone L.C. that the Court of Appeal got
it wrong. Where I differ from him is in thinking that [*1132] the trial judge got it right. I am
fortified in this view by the fact that Lord Denning M.R. understood the
summing-up as leaving to the jury a choice whether to award a sum appropriate as
a punishment of the more blameworthy of the defendants or the less blameworthy
or something in between the two sums. Salmon L.J. appears to have taken the
same view. Both thought that this was a correct statement of the law. In this I
think that they were mistaken as to the law, but right as to what the jury
would have understood the summing-up to mean. On the
wider aspects of the course adopted by the Court of Appeal it is best that I
should content myself with expressing my concurrence with all that Lord
Hailsham of St. Marylebone L.C. has said. LORD
KILBRANDON. My
Lords, there are several reasons which induce me to be as brief as I can.
First, the case in its important general aspects is concerned with doctrines,
and to some extent with procedures, with which I am not familiar. Secondly,
those general aspects have been examined in great detail and in an
authoritative manner by your Lordships who have preceded me. Thirdly, since it
is unlikely that any contribution of mine would be regarded as of value in
clarifying the law of England, I may at least wind up the consideration of a
disastrous case with economy, the lack of which, especially in this class of
litigation, is, as others of your Lordships have observed, a notoriously
discreditable feature of our jurisprudence. In short, having had the advantage
of reading the speeches prepared by my noble and learned friends, Lord Hailsham
of St. Marylebone L.C., Lord Reid and Lord Morris of Borth-y-Gest, I agree with
them. It is
conceded by the appellants that they libelled the respondent, and they do not
attack as excessive the sum awarded by the jury as compensation for the damage
they did to his feelings and his reputation. It is also conceded that, if there
was evidence upon which a properly directed jury could find that the appellants
had calculated that they might make a profit from publication which might
exceed the compensation payable to the plaintiff, then, since one man
should not be allowed to sell another mans reputation for profit,
and since it may be necessary to teach a wrongdoer that tort does not
pay, the jury were entitled to award punitive damages, on the
authority of Rookes v. Barnard [1964] A.C. 1129, 1227. The first question, and one which
from first to last occupied a very great deal of time in your
Lordships House, was whether there was such evidence. I have no
doubt on this point at all, and I do not rehearse the evidence. The jury had
before them the state of the appellants knowledge before publication
that the respondent had warned them that he regarded certain
passages as libellous, that professional naval opinion was to the same effect,
and, above all, that another reputable publisher had refused to handle the book
because of its defamatory character. The appellants attitude is
demonstrated by their written references to libel actions as affording
first class publicity, and to tightening up the
indemnity clause. No doubt there was an element of the jocular in
these remarks, but they do show that the appellants were going ahead with their
eyes open as to consequences, and they must have thought it would be worth
their while. Counsel
for the appellants pointed out, and I for one agree, that since [*1133] all commercial publication is
undertaken for profit, one must be watchful against holding the profit-motive
to be sufficient to justify punitive damages: to do so would be seriously to
hamper what must be regarded, at least since the European Convention was
ratified, as a constitutional right to free speech. I can see that it could be
in the public interest that publication should not be stopped merely because
the publisher knows that his material is defamatory; it may well be in the
public interest that matter injurious to others be disseminated. But if it were
suggested that this freedom should also be enjoyed when the publisher either
knows that, or does not care whether, his material is libellous
which means not only defamatory but also entreat would seem that the scale is
being weighted too heavily against the protection of individuals from attacks
by media of communication. The
conduct of the appellants, accordingly, is in my view brought within the
principle of the rule laid down in Rookes v. Barnard to which I have just referred. If
a publisher knows, or has reason to believe, that the act of publication will
subject him to compensatory damages, it must be that, since he is actuated by
the profit-motive, he is confident that by that publication he will not be the
loser. Some deterrent, over and above compensatory damages, may in these
circumstances be called for. This
leads me to the little I have to say on the doctrine of punitive damages. I do
not propose to discuss its merits or demerits, because I agree with Lord
Devlin, not only that it forms part of the law of England, but also that its
abolition would not be within the judicial functions of this House. I will,
however, add that I am not convinced that any statutory example of the recognition
of the doctrine is to be found. By the Law Reform (Miscellaneous Provisions)
Act 1934 it is provided that where a cause of action survives for the benefit
of the estate of a deceased person, the damages recoverable for the benefit of
that estate shall not include any exemplary damages. In the previous subsection
provision had also been made, per contra, for causes of action subsisting
against the estates of deceased persons. Since punitive damages are punitive or
deterrent against the author of them, it would have been understandable if the
statute had refused to allow them against a dead man. But, instead, they have
been disallowed when they are claimed in respect of an injury to a dead man.
This leads me to suppose that by the phrase exemplary damages
Parliament was here referring to what are usually called
aggravated damages; the estate of a dead man must pay them
in order to indemnify the living, but the estate of a dead man, whose feelings,
post mortem, have become irrelevant, does not receive them. In the
same sense I would interpret section 13 (2) of the Reserve and Auxiliary Forces
(Protection of Civil Interests) Act 1951 which provides for the award, in
certain circumstances, of exemplary damages. Section 13 (2)
applies, by virtue of section 13 (6), to Scotland, and since I can hardly
believe that this Act introduced for the first time, as it were by a side-wind,
the doctrine of punitive damages into the law of Scotland, I conclude again
that exemplary really means aggravated.
Aggravated damages, in the English sense, are available to pursuers in
defamation cases in Scotland, subject to this qualification, that the conduct
of counsel (cf. Greenlands Ltd. v. Wilmshurst and London Association for
Protection of Trade
[1913] 3 K.B. 507) is not accepted as an aggravation unless that conduct has
been [*1134] on the express
instructions, or with the privity, of counsels client see James
v. Baird, 1916
S.C. 510. Finally, Lord Devlin, at p. 1225, doubted whether section 17 (3) of
the Copyright Act 1956 authorised an award of exemplary damages: in my opinion
it did not. I do not
suppose that anyone now sitting down to draft a civil code would include an
article providing for punitive damages. But the doctrine exists, and in my
respectful opinion the rationale of it is explained, by illustrations as apt as
one could find, in the speech of Lord Devlin. The doctrine proceeds upon the
footing, whether sound or not, that in some torts, and in some circumstances,
there is an element of public interest to be protected. The only way in which
that can be done may be by awarding to a plaintiff a sum of damages which he
does not deserve, being in excess of any loss or injury he has suffered; that sum
includes an element calculated to deter the defendant, and other like-minded
persons, from committing similar offences. One example, which is Lord
Devlins second category, I have already noticed the
publisher who does not mind paying compensatory, even aggravated, damages for
libel, because he will still have a profit after paying them. It is not in the
public interest, especially as the publishing agencies become more and more
monolithic, that such conduct should go unchecked, and no remedial measures
other than punitive damages seem to be open. A second example Lord
Devlins first category is in the sphere of public
authority. While, as some of your Lordships have pointed out, the illustration
may have been too narrowly drawn, the rationale is clear, and is the same. An
example might be an outrageous excess of official authority without any
aggravating circumstances (cf. Huckle v. Money, 2 Wils. 205) resulting in the
wrongful imprisonment of a person of bad character. False imprisonment is
primarily actionable as an injury to reputation. If the plaintiff has none to
lose, the amount of his compensatory damages may be inadequate to deter, in the
public interest, flagrant injustices of this character. The
exclusion of the common bully category, and the consequent
overruling of Loudon v. Ryder [1953] 2 Q.B. 202, are entirely consistent with this
principle. Very large compensatory damages, which should be adequate deterrent,
are proper in such cases, and in most of them the criminal law can also take
care of the public interest. I
accordingly accept that the case of Rookes v. Barnard, as it has now been expounded by
my noble and learned friend, Lord Reid, correctly states the law of England. It
cannot be said, and it does not purport, to state the law of Scotland; it may
be that in other parts of the Commonwealth also it is not, for what may be very
different reasons, acceptable. Nevertheless it appears to me to give content to
the doctrine of punitive damages, and to set proper limits upon it. The trial
having been correctly and inevitably conducted upon the basis of Rookes v.
Barnard as then
understood, the question now arises whether the learned judge gave the jury
adequate and accurate directions in law on that basis. First, did he fail to
make it clear to the jury that, if they had made an award of compensatory
damages, any additional award by way of punitive damages could be made
if, but only if, the amount of the compensatory damages did
not itself constitute a sufficient deterrent? The second objection was that the
learned judge gave an inadequate [*1135]
direction as to the course to be followed by the jury should they find punitive
damages due, but a different degree of culpability in the two defendants. I
think it is sufficient for me to say that I agree with those of your Lordships
who are of opinion that the directions, in both matters, were adequate. The
aspect of the case which has given me the greatest difficulty is the question
whether the total amount of the damages awarded is so excessive that the
verdict cannot stand. That it is excessive I do not doubt, but that is not a
sufficient reason for the award to be set aside. The assessment of damages in
such cases as this is not, in our law, a judicial function. In so far as
compensatory damages are concerned, it may well be right that that should be
so. If he were called on to estimate the sum appropriate to repair the injured
feelings and damaged reputation of a citizen who had been defamed, a judge
would be making not a legal, but something more like a social, assessment:
there is no reason to suppose that his estimate would more probably be correct
than would that made collectively by any twelve sensible men and women. So when
one looks at a jurys award in such a case one has to ask, whether it
could have been made by sensible people acting reasonably, or whether it must
have been arrived at capriciously, unconscionably or irrationally. On that test
I think the present award must stand. Moreover, it is not unprecedented. For
example, in a case in which the libel was in some ways less wounding than the
present Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd., 50 T.L.R. 581 an
award, adjusted for the change in money values, of well over twice as large as
this was upheld by experienced judges. The same
test, as the law now stands, must be applied to a jurys award of
punitive damages. Whether this should be so is another matter; it is arguable
that the assessment of punishment is not properly a jurys function,
and ought more readily to be challengeable on appeal to a judicial authority.
It is obvious that, as counsel for the appellants forcibly pointed out, a
defendant against whom punitive damages is sought stands to a great extent
stripped of the constitutional safeguards which would be his right were he
arraigned before a criminal court. One of those safeguards is a calm judicial
determination of the penalty appropriate to his offence. Perhaps, if the
doctrine of punitive damages is to be retained, it ought to be made a condition
precedent of their being asked for that the plaintiff forgo his right to have
the case tried by a jury; it is not likely that a defendant would wish to stand
on his own right in that respect. So,
although I would myself have assessed the damages at a much smaller sum, I
cannot say that the award, on the principles under which we now operate, ought
not to stand, or that, were a new trial to be ordered, the result would, in my
confident opinion, be substantially different. Finally,
I do not consider it necessary for me to say anything on the issue of the
relations between this House and the Court of Appeal, except that I entirely
agree with what has fallen from my noble and learned friend the Lord Chancellor
on this topic. I would,
accordingly, dismiss this appeal. Appeal
dismissed. |