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No. 10. — Zierenberg v. Labouchere, 1893, 2 Q. B. 189, 190.
justification. But it is no justification to plead simply that the alleged libel is true. That, as has been pointedly said, is not justification but is merely repeating the libel. J Anson v. Stuart, p. 98, ante, 1 T. R. 748 (1 R. R. 392). Accordingly the practice required that the plea should state facts which justified the defendant in publishing the language complained of. This is clear from the decision in Hickinbotham v. Leach, 10 M. & W. 361, and the authorities referred to in that case: Jones v. Stevens, 11 Price, 235; Newman v. Bailey, 2 Chit. Rep. 665; J'Anson v. Stuart, Holmes v. Catesby, 1 Taunt. 543.
It is said that the modern practice is not to state the facts relied on as a justification in the pleading, but to add them in particulars. I presume this is done under Order XIX., rr. 6, 7. But then the particulars should be as explicit as the plea was required to be before.
If the defendant says that he is unable to state any such facts without discovery, the answer is simple and conclusive, — he ought not to have published the libel, and cannot plead any justification for having done so.
The case of a charge of fraud against an agent, or a breach of trust against a trustee, by pleading only, where no libel has been published otherwise, is essentially different. There the fiduciary relation, and the circumstance that the facts are generally known only to the defendant, or at least that he has means of knowledge not in the first instance equally accessible to the plaintiff, may justify the Court in requiring the defendant * to (* 190] make discovery before the plaintiff is called on to give particulars, because the fiduciary relation of the defendant to the plaintiff entitles the plaintiff to all the knowledge which the defendant may have, and it is not uncommon, when a conflict arises between the right of the plaintiff to discovery and the right of the defendant to particulars, in such cases to postpone the giving of particulars until the discovery has been made. Leitch v. Abbott; Sachs v. Speilman, 37 Ch. D. 295.
But to apply this practice to the case of libel would be to sanction the publication of a libel when the libeller knew no facts justifying the libellous statement, because he believed he could by the process of discovery elicit such facts.
It is urged that if the facts are stated before discovery is given that the discovery will be limited to the particular facts so alleged.
Nos. 9, 10. — J'Anson v. Stuart; Zierenberg v. Labouchere. — Notes.
I am not satisfied that this will necessarily be so. I can conceive a case in which a libel in general terms may be justified by certain facts stated in the particulars, and that there may be power to obtain discovery of other analogous facts which may support the justification. But even if it were so limited, that is no reason why the particulars should not be as definite or explicit as the defendant can make them. It seems to me a much less evil, if it be an evil, to confine the discovery to the particular facts adduced as a justification, than to give the smallest sanction to a libel unsupported by facts which justify the publication.
There is another obvious reason for requiring precise particulars, namely, that the plaintiff may know the case he has to meet and what acts it is alleged have been committed which justify the general charge against him. But this is a consideration not peculiar to libel cases.
I am of opinion that the particulars complained of are too general; that they are not particulars at all, but a mere repetition of part of the libel, and that further and better particulars ought to be given.
There remains the question whether the penalty if better particulars are not given is not as it now stands too large. A libel
lous statement as to which no particulars are given ought (* 191] * not to be allowed to be justified at all. But where some
facts are stated in the particulars by way of justification which may or not be sufficient, it is argued that the defendant should not be prevented from relying on them at the trial simply because he has added a general statement which in itself is not sufficient. However, I am not satisfied that this argument applies in the present case. I do not think that any facts are stated as a justification in this case in the particulars complained of, and, therefore, the penalty imposed is not too large.
The plea of justification on the ground of truth is that the whole statement is substantially true. If the whole statement is not true, the plea fails. For instance, if the heading or title of a paragraph in a newspaper is not true, the fact that the paragraph itself is true or privileged will not save the paper from liability. In Clement v. Lewis (1822), 3 Brod. & Bing. 7 Moo. 200, 3 B. & Ald.
Nos. 9, 10. — J'Anson v. Stuart ; Zierenberg v. Labouchere.
702, 22 R. R. 530, the heading of a paragraph was “Shameful conduct of an attorney.” The paragraph itself consisted of a correct report of certain proceedings in the Insolvent Debtors' Court. The plaintiff was held entitled to judgment, on the ground that the heading formed no part of the proceedings. In Mountjoy v. Watton (1831), 2 B. & Ad. 673, the defendant published in a newspaper a paragraph entitled “ Horse Stealer.” This was followed by a correct statement of the circumstances under which the plaintiff was taken up on suspicion of stealing a horse. The defendant justified everything except the word "horse stealer." The plea of justification failed. In Bishop v. Latimer (1861), 4 L. T. 775, the title of a paragraph in a newspaper was “How lawyer B. treats his clients.” The paragraph reported a case in which one client of B. had been badly treated. It was decided that the heading was untrue and the plea of justification failed.
So, gross exaggeration destroys the plea of justification. In Clarkson v. Lawson (1829-30), 6 Bing. 266, 4 M. & P. 356, the defendant wrote of the plaintiff, a proctor, that he had been three times suspended for extortion. In fact, he had only once been suspended for extortion. The defendant was held liable.
In Wakley v. Cooke & Healy (1849), 4 Ex. 511, 19 L. J. Ex. 91, the defendant called the plaintiff a libellous journalist. The plaintiff had libelled only one person. He was allowed to recover damages from the defendant. In Leyman v. Latimer (1877-78), 3 Ex. D. 15, 352, 47 L. J. Ex. 470, 37 L. T. 819, 26 W. R. 305, the defendant accused the plaintiff of being a convicted felon. The plaintiff was in fact an ex-convict. It was held that the word "ó felon
was not justified. In Watkin v. Hall (1868), L. R., 3 Q. B. 396, 37 L.J.Q. B. 125, 18 L. T. 561, 16 W. R. 857, 9 B. & S. 279, the defendant was held not justified in repeating a Stock Exchange rumour concerning the solvency of the plaintiff. Nor is the existence of a rumour to the same effect as the libel admissible as evidence on a plea of justification. Scott v. Sampson (1882), 8Q. B. D. 491, 51 L. J.Q. B. 380, 46 L. T. 412, 30 W.R. 511.
The defendant set out counsel's opening speech in a case, and stated that the facts opened were proved. The plea of justification was that a witness had been called, who by his testimony proved all that had been stated by counsel. The plea was held bad on demurrer, for not showing the truth of the facts in detail. Lewis v. Walter (1821), 4 B. & Ald. 605, 23 R. R. 415.
Where the declaration sets out an alleged libel consisting of two statements which are separable, one of which is libellous and the other (not libellous in itself) is not accompanied by any innuendo suggesting a libellous meaning, it is sufficient for the defendant to justify the libellous matter. So in Clarke v. Taylor (1836), 2
Nos. 9, 10. — J'Anson v. Stuart; Zierenberg v. Labouchere. — Notes.
Bing. N. C. 654, the defendants justified and proved the truth of a libel charging the plaintiff with having acted in a grand swindling concern at Manchester; but omitted justification of the following passages in the publication alleged to be a libel: “ As we have already stated Clarke had been at Leeds and is supposed to have made considerable purchases there. We have already stated that Clarke referred Mr. A. to a stockbroker in London, a Mr. Peacock we believe, to whom Mr. A. wrote for information respecting Clarke's circumstances. He received a reply from Mr. Peacock, stating that Clarke had been introduced to him by a very respectable party; that he had sold stock for Clarke. We believe there is not the slightest reason to doubt the truth of Mr. Peacock's statement; and the probability is that Clarke had been furnished with the stock, and an introduction had been obtained to the stockbroker for the purpose of giving colour to his proceedings here and in Yorkshire.” The jury having found for the defendant on the part of the libel which was justified, the Court refused to enter a verdict for the plaintiff on the passage above quoted. TINDAL, C. J., said (2 Bing. N. C. p. 664) “There can be no doubt that a defendant may justify part only of a libel containing several distinct charges. This was established in Stiles v. Nokes, 7 East, 493, where LAWRENCE, J., said: “A plea of justification may be good with a general reference to certain parts of the libel set forth in the declaration, if the Court can see with certainty what parts are referred to, as if the reference be to so much of the libel as imputes to the plaintiff such a crime (e. g., perjury) that would be sufficient without repeating all those parts again, which would lead to prolixity of pleading, and ought to be avoided.' But if he omits to justify a part which contains libellous matter, he is liable in damages for that which he has omitted to justify. The plea in the present instance does not affect to justify the whole of the publication, and we are to see whether the part omitted would by itself form a substantive ground for an action of libel. I cannot say that it is of that description. ... The declaration contains no allegation that fraud was imputed to the plaintiff in his transactions at Leeds. . . . As the plaintiff himself has not fixed a bad sense on it (the passage above quoted), I cannot see why we should do so."
Provided the whole statement is substantially true, general expressions of invective founded on the facts need not be particularly justified, if such expressions would not produce a different effect on the mind from that which the actual truth would produce. In Morrison v. Harmer (1837), 3 Bing. N. C. 759, the defendant wrote of the plaintiffs that they pretended to cure all sorts of diseases with one kind of pill, that they were scamps and rotgut rascals, and that their system was one of wholesale poisoning, and that they had been convicted of man.
Nos. 9, 10. — J'Anson v. Stuart; Zierenberg v. Labouchere.
slaughter, fined, and imprisoned for causing deaths by the administration of their poisonous vegetable boluses. It was proved that the pills if taken in large quantities as recommended in the advertisements and by the plaintiff's agents were poisonous; that the pills so taken had caused the death of two persons, and that the plaintiffs bad been convicted of manslaughter for causing these deaths. It was held that absence of further proof as to truth of the general expressions of invective did not destroy the plea of justification,
In Reg. v. Labouchere (Lambri's Case) (1880), 14 Cox, C. C. 419, the defendant wrote of the prosecutors that “ A., B., & C. are a gang of cardsharpers." It was proved that they had on two occasions cheated at cards. The defendant was discharged, it being held that the plea of justification was proved.
AMERICAN NOTES. Mr. Newell cites the first principal case, with approval (Defamation, p. 652), saying : “A justification must always be specially pleaded, and with sufficient particularity to enable plaintiff to know precisely what is the charge he will have to meet.” Citing Johnson v. Stebbins, 5 Indiana, 364; Jaycocks v. Ayres, 7 Howard Practice (New York), 215; Jones v. Cecil, 5 English (Arkansas), 593; Van Ness v. Hamilton, 19 Johnson (New York), 349; Torrey v. Field, 10 Vermont, 353, citing J'Anson v. Stuart ; Stow v. Converse, 4 Connecticut, 17; Cooper v. Greeley, 1 Denio (New York), 364, citing J'Anson v. Stuart.
In Van Ness v. Hamilton, supra, where the defendant by plea charged a member of the council of revision with taking money for procuring a charter, it was held that the particular facts must be alleged. Chief Justice SPENCER said: “A plea in bar of the plaintiff's action must be certain to a common intent; it must be direct and positive in the facts set forth, and must state them with all necessary certainty.” Citing J'Anson v. Stuart, at length, and observing: “ No case falling under my observation impugning the doctrine there laid down. ... A material and traversable fact must be expressly stated.” The contrary would be “an alarming doctrine.”
Mr. Townshend cites the first principal case very frequently, observing (Slander and Libel, sect. 357): “ The facts which show the cause to be true must be stated with certainty, so that the Court can see whether the defendant was justified in what he published.” Citing Kerr v Force, 3 Cranch (U. S Cir. Ct.), 8; Fry v. Bennett, 5 Sandford (New York Superior Ct.), 54 ; Maretzek v. Cauldwell, 2 Robertson (ibid.), 715; Wachter v. Quenzer, 29 New , York, 552. " Where the charge is in general terms, the answer must state the facts which show the charge to be true. It is not sufficient merely to allege that the charge is true." Townshend on Slander and Libel, sect. 355 ; Lawton v. Hunt, 4 Richardson Law (So. Car.), 258; Atteberry v. Powell, 29 Missouri, 429; Barrows v. Carpenter, 1 Clifford (U. S. Circ. Ct.), 204; Cook v. Tribune Ass'n, 5 Blatchford (ibid.), 352; Sweeney v. Baker, 13 West Virginia, 158.
Under the Code Practice in this country either party is entitled to a bill