No. 10. Zierenberg v. Labouchere, 1893, 2 Q. B. 183, 184.

plaintiffs were charity swindlers' and 'impostors,' and the home was a monstrous swindle,' and of the facts and matters relied on in support of such allegations, and when they occurred." To this the defendant replied: "The plaintiffs by the annual reports, prospectuses, and appeals issued by them to the subscribers and the public represented the St. James' Home as a home for female inebriates, and invited subscriptions and donations for the home,

on the ground that it was a home for female inebriates, [* 184] and such subscriptions and donations as were *paid were paid upon the faith of that representation and invitation, whereas in fact the home was conducted and managed as a commercial undertaking, and in such a way as to further the success of the undertaking rather than the welfare of its inmates, and so that the plaintiffs could benefit themselves by the carrying on of the home. The facts and matters relied on are all the facts and matters stated in the alleged libel (within certain specified limits), and in addition the following facts and matters, viz.: that no proper system of books or accounts showing the receipts and expenditure of the home was kept, and that no proper vouchers were submitted to the auditors for the purpose of preparing the annual balance sheets, and that the balance sheets do not show the real or entire receipts or expenditure of the home, and that the plaintiffs by means of the home were enabled to live free of expense to themselves, and that they appropriated for their own purposes monies received for or earned by the home, and they caused statements to appear in the annual balance sheets of the home, of cash supplied by the female plaintiff and loans made by the male plaintiff, which were not in fact supplied or lent out of their own monies, but in reality out of the monies of the home, and the time when the aforesaid facts and matters occurred was the whole time the home has been open since its institution in 1876." After delivery of these particulars a master, on the application of the plaintiffs, made an order for further particulars, setting out, among other things, "the receipt of monies appropriated by the plaintiffs for their own purposes, and not accounted for, and of the persons from whom and the dates when such monies were received, and in what way the expenditure of the home was not shown by the balance sheets," and that the defendant should be precluded from giving any evidence in support of his justification in respect of the matters as to which he

No. 10. Zierenberg v. Labouchere, 1893, 2 Q. B. 184, 185.

did not give the particulars ordered. This order was confirmed by the judge at chambers and the Divisional Court.

The defendant appealed.

1893. May 30. R. T. Reid, Q. C., and J. Eldon Bankes, for the defendant. The defendant is not bound to give further * particulars, or, at all events, is not bound to give [* 185] them with the minuteness asked for. His justification is general and depends on the general conduct of the plaintiffs in managing the home and not on the misappropriation of any particular subscriptions. The answers sufficiently indicate the nature of the evidence which the defendant will bring forward, and he ought not to be called on to disclose the names of his witnesses. At all events, he ought to have discovery before being required to give further answers. Leitch v. Abbott, 31 Ch. D. 374, 55 L. J. Ch. 460. [They also cited Hickinbotham v. Leach, 10 M. & W. 361, 11 L. J. Ex. 341, and Gourley v. Plimsoll, L. R., 8 C. P. 362; 42 L. J. C. P. 244.]

Sir E. Clarke, Q. C. (C. C. Scott, with him), for the plaintiffs, was stopped. [He cited ♫Anson v. Stuart, p. 98, ante, 1 T. R. 748 (1 R. R. 392).] J. Eldon Bankes, replied. Cur. adv. vult.

1893. June 1. Lord ESHER, M. R. In this case the plaintiffs have brought their action charging that the defendant has libelled them, and they have set out in the statement of claim that which they say is the libel. The matter so set out contains a great many separate statements said to be libellous; but the defendant does not confine his plea to any particular part, but, as he has a right to do, pleads generally to the whole a justification that it is true. The plaintiffs say that the defendant pleading a justification in libel must give particulars, and have taken out a summons for particulars, not asking for them in general terms but, according to the usual practice, pointing out the matters as to which particulars are required. The defendant has given particulars, and, as to some of them, the plaintiffs are satisfied of their sufficiency, but as to other matters they say that no particulars have, in fact, been given, or that the particulars are in general terms and insufficient, and ought to be supplemented by further particulars giving more specific information. The defendant objects to giving any further particulars, and what we have to decide is whether he is bound to give them or not. The defendant raises the question in this way:

No. 10.

Zierenberg v. Labouchere, 1893, 2 Q. B. 186, 187.

[*186] He says he ought not to be obliged to give any further particulars; but he says further that the questions put to him are too minute, and he raises this further point that if he is to answer those questions he ought not to be obliged to do so at the present time, but ought to be allowed discovery by means of interrogatories, and inspection of books, before he is called on to do so.

Strictly speaking, the defendant, having pleaded generally a justification of the whole libel, would be bound to prove the whole to be true, and if he failed in doing so, it might be said that his plea of justification failed altogether. That would have been the old practice; but that seems to be too strict a view of the rights of the parties to take at the present time, and I think we ought to treat the case as if the statements in the claim were statements of separate libels and the general plea of justification as if it applied to each part of the claim.

That a general plea of justification of a libel without particulars of that justification is bad has been the law from the earliest times. This is illustrated by the judgments of ASHHURST and BULLER, JJ., in Anson v. Stuart. The former says in giving judgment: "When he "- that is, the defendant" took upon himself to justify generally the charge of swindling, he must be prepared with the facts which constitute the charge in order to maintain his plea: Then he ought to state those facts specifically, to give the plaintiff an opportunity of denying them; for the plaintiff cannot come to the trial prepared to justify his whole life." That is a leading case on the subject, and at the time when it was decided it was necessary to put the particulars in the plea. Afterwards the practice was varied, and a defendant could make his plea general; but he was still bound before he went to trial to give as particulars the same matters that he would formerly have been bound to put in his plea. The mode of dealing with such a case as this is stated by PARKE, B., in Hickinbotham v. Leach, 10 M. & W. 361, at p. 363: "It is a perfectly well-established rule in cases of libel or slander, that where the charge is general in its nature, the defendant, in a plea of justification, must state some specific instances of the misconduct imputed

to the plaintiff." And in that case, during the argument, [* 187] ALDERSON, B., at page 363, said: "The plea ought to state the charge with the same precision as in an indictment.' That, I think, must now be read in this way: "If the

No. 10. Zierenberg v. Labouchere, 1893, 2 Q. B. 187, 188.

instances are not put into the plea the particulars must be as precise as would be necessary in an indictment." Treating the case then by way of indulgence to the defendant, as though he had picked out this particular libel with which we are now dealing, and stated that it was true, we must consider whether he has given particulars which are sufficient. The libel is in effect that the plaintiffs are "charity swindlers and impostors and the home is a monstrous swindle." That is a general statement, and he is asked for particulars, that is, for the instances on which he relies to justify that statement, and he says: "The instances are that they appropriated for their own purposes monies received for, or earned by, the home, and they caused statements to appear in the annual balance-sheets of the home of cash supplies by the female plaintiff, and loans made by the male plaintiff, which were not, in fact, supplied or lent out of their own monies, but in reality out of the monies of the home." Is that answer sufficient? No doubt it states the way in which the defendant means to justify; but it is almost as general as the statement in the alleged libel. It does not give the instances, nor does it state the times or occasions on which the swindles are alleged to have been done, nor does it give the names of the persons whose money is alleged to have been misappropriated. In old days a plea that did not give such particulars of justification would have been bad, and at the present time particulars that fail in this respect are insufficient. Therefore, being of opinion that these statements in the particulars are not sufficiently precise as to the instances on which the defendant means to rely, we must agree with the Divisional Court that the defendant must give further particulars, and if he does not, his justification as to that part of the libel must fail, and he will not be allowed to go into it.

The defendant, however, alleges that the particulars asked for are too minute, and would hamper him in his defence, that is to say, that he ought not to be called on to give names because he would be giving the names of his witnesses. If the particulars are those that he ought to give, he cannot refuse to *do so merely on the ground that his answer will disclose [* 188] the names of the witnesses he proposes to call. On this point all that we say is, that the plaintiffs are within their rights in asking for these particulars, but whether the defendant can in his answer give any reasonable excuse for not answering as to some of the matters raised is a question we do not go into.

No. 10.

- Zierenberg v. Labouchere, 1893, 2 Q. B. 188, 189.

I now come to the contention that the defendant ought not to be made to answer now, but should be allowed discovery by way of interrogatories and inspection before being called on to do so. This is not a case in which, before the action was brought, there was any relation between the parties, such for instance as that of principal and agent which would entitle the defendant to discovery. The only connection between them is that of plaintiffs and defendant in an action for libel, and the defendant is not entitled to discovery for the purpose of finding out whether he has a defence or not. Such discovery has never been allowed in the absence of some relationship between the parties to the action, except under exceptional circumstances, such as one party keeping back something which the other was entitled to know. Here the justification, for want of sufficient particulars, is not a wellpleaded defence, and till there is such a defence there can be no right to discovery, in the absence both of the relationship of which I have spoken and of any special circumstances. The pleading by the defendant of his justification, which consists of his general plea and his particulars, is not yet a well-pleaded defence, and until there is such a defence the defendant has no right to discovery.

Upon principle and authority the defendant's contention that he is not bound to give the particulars till he has had discovery fails. A case was cited, Leitch v. Abbott, 31 Ch. D. 374, that was said to show the contrary and to prove that there was now a new state of the law, the result of the Judicature Acts, but in that case there existed a relationship between the parties which gave a right to discovery before plea, and the decision was founded on the existence of that relationship, so that the case is no authority for the contention of the defendant. The decision of the Divisional Court will therefore be affirmed.

[*189]

*BOWEN, L. J. I am entirely of the same opinion.
The following judgment was read by

KAY, L.J. The argument in this case, in one view of it, seems to involve the question whether mere suspicion can justify a libel. It is urged that the so-called particulars, which are in terms as general as the libel complained of, ought not to be made more definite at present, because until the defendant has obtained discovery from the plaintiff, he may not be able to give particulars in any better form. The defendant in a libel action may plead a