Page images
PDF
EPUB

Nos. 5, 6.

Toogood v. Spyring; Hemmings v. Gasson. Notes.

to be good. Hamon v. Fall (1879), 4 App. Cas. 247, 48 L. J. P. C.

45.

If the defendant starts an unprivileged statement against the plaintiff, and in explaining the statement utters a libel, the explanation is not privileged. Smith v. Mathews (1831), 1 Moo. & Rob. 151. So, unnecessarily wide publication of a privileged statement destroys the privilege. Robertson v. M’Dowall (1828), 4 Bing. 620, 3 C. & P. 259; Jones v. Williams (1885), 1 Times Law Rep. 572.

If an occasion is privileged, the mere fact that the statement complained of was in excess of the occasion does not rebut the defence of privilege, unless the jury find actual malice. Nevill v. Fine Arts Insurance Company (C. A. 1895), 1895, 2 Q. B. 156, 64 L. J. Q. B. 681, 72 L. T. 525. See Notes to No. 11 p. 127, post.

8. "If a communication was of such a nature that it could be fairly said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them, when these two things coexist, the occasion is a privileged one." Per Lord ESHER, M. R., in Hunt v. Great Northern Railway Company (1891), 1891, 2 Q. B. at p. 191, 60 L. J. Q. B. 498. This of course means "privileged" in the qualified sense that actual malice would take the case out of the privilege. For instance, a letter by a ratepayer affecting the character of a constable to be read at a parish meeting at which the accounts of the parish were to be considered, Spencer v. Amerton (1835), 1 Moo. & Rob. 470; a communication made by a relative to a lady as to the character of her intended husband, Todd v. Hawkins (1837), 8 C. & P. 88; an accusation made by a parishioner before justices sitting in special sessions, and objecting to the plaintiff who was about to be sworn in as a parish constable, Kershaw v. Bailey (1848), 1 Ex. 743, 17 L. J. Ex. 129. The defendant, a tradesman, having reason to suspect that the plaintiff, a servant of M. one of his customers, had when sent to the defendant's premises by M. abstracted property belonging to the defendant, communicated to M. the reasons of his suspicions. It was held that the communication was privileged. Aman v. Damon (1860), 8 C. B. (N. s.) 597, 29 L. J. C. P. 313.

A charge made at a parish meeting convened for the nomination of officers, as to the previous conduct in office of a parish officer seeking re-election was held to be privileged. George v. Goddard (1861), 2 F. & F. 689.

R., a tradesman, received letters purporting to come from the defendant, and ordering targets to be sent to the headquarters of a regiment of volunteers of which the defendant was honorary secretary. In answer to questions from R. the defendant denied ordering the goods,

Nos. 5, 6. Toogood v. Spyring; Hemmings v. Gasson. Notes.

and added, "On comparison of the order and others, with letters in the office in the handwriting of Dr. C. (the plaintiff), I have no hesitation in saying as my firm opinion that all the letters are in his handwriting." The jury found that the defendant wrote the letters without malice in the bona fide belief of the truth of his statement. Held that the letter was privileged. Croft v. Stevens (1862), 7 H. & N. 570, 31 L. J. Ex. 143.

A correspondence between a curate of one parish church, and the defendant, an incumbent of another parish church, as to the character of a parishioner of the latter who had formerly lived in the parish in which the curate worked, relating to a proposal that the defendant should arbitrate in a dispute between two members of the church, and in which the defendant gave his reasons for declining to do so, was held to be privileged. Whiteley v. Adams (1864), 15 C. B. (N. S.) 292, 33 L. J. C. P. 89. So a letter by one creditor, appointed as the trustee in bankruptcy of the debtor's estate, to another creditor respecting the debtor. Spill v. Maule (1869), L. R., 4 Ex. 232, 38 L. J. Ex. 138, 20 L. T. 675, 17 W. R. 805. Similarly a bishop's charge to his clergy, Laughton v. Bishop of Sodor and Man (1872), L. R., 4 P. C. 495, 42 L. J. P. C. 11, 28 L. T. 377, 21 W. R. 204, and a communication between a vicar and curate for the purpose of obtaining advice as to the course to be pursued on an ecclesiastical matter, were decided to be privileged. Clarke v. Molyneaux (C. A. 1877), 3 Q. B. D. 237, 47 L. J. Q. B. 230, 37 L. T. 694, 26 W. R. 104. The judgment of BRAMWELL, L. J., contains a clear statement of the way in which the question ought to be left to the jury in such cases. He says: "The proper direction to the jury would have been this: "These occasions are privileged, and unless you are satisfied that the defendant availed himself of them, or on the occasion spoke malâ fide, maliciously (with an explanation of what is meant by that word), then you ought to find for the defendant." In Quartz Hill Gold Mining Company v. Beal (C. A. 1882), 20 Ch. D. 509, 51 L. J. Ch. 874, 46 L. T. 746, 30 W. R. 583, a circular written by a solicitor for some of the shareholders of the company and sent to other shareholders upon a matter of interest to the company was held to be prima facie privileged. In this case it was laid down that where a communication is primâ facie privileged (sub modo), and the ground of action is that the privilege has been abused, the Court will exercise the utmost caution before acceding to an application to restrain the publication, especially by interlocutory injunction. The MASTER OF THE ROLLS (Sir J. JESSEL) said: “A judge should hesitate long before he decides so difficult a question as that of privilege upon an interlocutory application, the circular being, on the face of it, privileged, and the only answer being express

malice."

Nos. 5, 6.

Toogood v. Spyring; Hemmings v. Gasson. Notes.

The privilege is destroyed if the communication is made known to an unnecessarily large number of persons. Toogood v. Spyring, the first principal case; Duncombe v. Daniell (1836), 8 C. & P. 222; Martin v. Strong (1836), 5 Ad. & El. 538; Hoare v. Silverlock (1848), 12 Q. B. 624, 17 L. J. Q. B. 306, 12 Jur. 695; Parsons v. Surgey (1864), 4 F. & F. 247; or if made maliciously. Jackson v. Hopperton (1864), 16 C. B. (N. S.) 829, 10 L. T. 529, 12 W. R. 913. If statements are made beyond the necessity of protecting the common interest, the occasion is not, so far as relates to those statements, a privileged one. Fryer v. Kinnersly (1863), 15 C. B. (N. S.), 422, 33 L. J. C. P. 96, 9 L. T. 415, 12 W. R. 155.

9. Statements made in discharge of a duty, which may be either legal, moral, or social (per LOPES, L. J., in Stuart v. Bell (1891), 1891, 2 Q. B. at p. 353, 60 L. J. Q. B. 577, 64 L. T. 633, 39 W. R. 612) are privileged. For instance, an answer to an enquiry as to the character of a clerk or servant, Rogers v. Clifton (1803), 3 Bos. & P. 587; Murdoch v. Funduklian (1885), 2 Times Law Rep. 215, 614; a letter written by a solictor to his client, Wright v. Woodgate (1835), 2 Cr. M. & R. 573; a letter written by the director of a company to its members concerning the conduct of an officer of the company, Harris v. Thomp son (1853), 13 C. B. 333; the report of an officer in the Army or Navy to his superior officer, Sutton v. Plumridge (1867), 16 L. T. 741; Stace v. Griffiths (1869), L. R., 2 P. C. 420, 20 L. T. 197; Henwood v. Harrison (1872), L. R., 7 C. P. 606, 41 L. J. C. P. 206, 26 L. T. 938, 20 W. R. 1000; the statement of a person connected with a charity as to the character of a person seeking continuation in office as the trustee of the charity, Cowles v. Potts (1865), 34 L. J. Q. B. 247, 13 W. R. 858, 11 Jur. N. S. 946; the report of the auditor of a company to its directors and communicated by them to the shareholders, Lawless v. Anglo Egyptian Cotton & Oil Company (1869), L. R., 4 Q. B. 262, 38 L. J. Q. B. 129, 17 W. R. 498, 10 B. & S. 226; a letter written by an undermaster of a school to the headmaster, Hume v. Marshall (1878), 42 J. P. 136; an answer to a confidential enquiry, Robertson v. Smith (1878), 38 L. T. at p. 423; a letter written by a society for suppression of mendicity to a person enquiring about the plaintiff who had applied to him for help, Waller v. Lock (C. A. 1881), 7 Q. B. D. 619, 51 L. J. Q. B. 274, 45 L. T. 242, 30 W. R. 18; statements made to a master as to the doings of his servant, Masters v. Rogers (1886), 3 Times Law Rep. 96.

In the case of Henwood v. Harrison above mentioned, the question arose out of the publication by the authority of the Board of Admiralty of a board minute relating to the loss of The Captain containing a letter of the Controller of the Navy to the Board, reflecting upon cer

[merged small][merged small][ocr errors][merged small]

tain plans of ship construction which had been submitted by the plaintiff. It was common ground of the judgments of the Court that the letter was privileged. The question upon which the Court differed was whether the privilege extended to the sale of copies to the public. It was held by the majority, WILLES, J., BYLES, J., BRETT, J., against GROVE, J., that the publication was privileged on account of the public interest in the important matters brought under discussion.

In Allbutt v. General Council of Medical Education (C. A. 1889), 23 Q. B. D. 400, 58 L. J. Q. B, 606, 61 L. T. 585, 37 W. R. 771, a publication of the minutes of the General Council of Medical Education containing a statement that the name of a practitioner had been removed on the ground of professional misconduct was held to be privileged. In Hunt v. Great Northern Railway Company (C. A. 1891), 1891, 2 Q. B. 189, 60 L. J. Q. B. 498, the defendant company discharged one of their servants, and in a circular informed the other servants why the dismissal took place. The circular was held to be privileged. In Pittard v. Oliver (C. A. 1891), 1891, 1 Q. B. 474, 60 L. J. Q. B. 219, 64 L. T. 758, 39 W. R. 311, it was decided that the privilege attaching to defamatory statements made at a meeting of a board of guardians was not destroyed by the presence of reporters.

In White v. Batey (1892), 8 Times Law Rep. 690, a letter written by the member of a trade protection society to its secretary was held to be privileged. In Boxsius v. Goblet (C. A. 1893), 1894, 1 Q. B. 842, 63 L. J. Q. B. 401, 70 L. T. 368, 42 W. R. 392, a solicitor in discharge of his duty towards a client dictated to his clerk a letter containing defamatory statements concerning the plaintiff. The communication to the clerk was considered to be privileged.

Even a volunteered statement made bonâ fide and in order to enable the person to whom it is made to clear himself from imputations on his. conduct, is privileged. Davies v. Snead (1870), L. R., 5 Q. B. 608, 39 L.J. Q. B. 202, 23 L. T. 126.

A communication made by a parliamentary agent and chairman of the committee of one of two rival candidates to the agent of the rival candidate, charging the plaintiff with bribery in favour of the latter candidate, is not privileged. Dickeson v. Hilliard (1874), L. R., 9 Ex. 79, 43 L. J. Ex. 37, 30 L. T. 196, 22 W. R. 372.

The watch committee of the justices of a borough to facilitate business at the general licensing meeting, ordered the head constable to issue to persons having business at the meeting copies of his report which stated the ground of his objection to the renewal of licenses. This publication of the report was held to be privileged by reason that the constable, in issuing the copies under the order of the watch committee, was performing a statutory duty under the 7th section of the

[merged small][ocr errors][merged small]

(Police) Act 19 & 20 Vict. c. 69. Andrews v. Nottblower (C. A. 1895), 1895, 1 Q. B. 888, 64 L. J. Q. B. 536, 72 L. T. 530, 43 W. R. 582.

Two other defences to an action of libel or slander are:

1. Fair and bonâ fide comment on a matter of public interest. Campbell v. Spottiswoode (1863), 3 B. & S. 769, 32 L. J. Q. B. 185, 8 L. T. 201, 11 W. R. 569, S. C., at Nisi Prius, 3 F. & F. 421; Kelly v. Tinling (1866), L. R., 1 Q. B. 699, 35 L. J. Q. B. 940, 13 L. T. 255, 14 W. R. 51; Wason v. Walter (1868), L. R., 4. Q. B. 73, 38 L. J. Q. B. 34, 19 L. T. 409, 17 W. R. 169, 8 B. & S. 671; Merivale v. Carson (C. A. 1887), 20 Q. B. D. 275, 58 L. T. 331, 36 W. R. 231. The comment must be fair. It must not be a cloak for malice. Imputation of bad, wicked, or improper motives, without justification, makes the comment actionable. Cowper v. Lawson (1838), 8 Ad. & El. 746, 1 P. & D. 15, 1 W. W. & H. 601, 2 Jur. 919; Campbeli v. Spottiswoode (supra), Harle v. Catterall (1866), 14 L. T. 801; Bryce v. Rusden (1886), 2 Times Law Rep. 435; Brenon v. Ridgway (1887), 3 Times Law Rep. 592.

2. By 6 & 7 Vict. c. 96, s. 2, when a libel is published in a newspaper without malice and without gross negligence, insertion of an apology at the earliest possible opportunity is made a good defence; and the defendant may pay money into Court by way of amends. By 8 & 9 Vict. c. 75, s. 2, payment of some money by way of amends is made essential to a valid plea under the former Act.

AMERICAN NOTES.

The American doctrine accords with the first branch of the rule. Mr. Newell says (Defamation, p. 391): "A communication made in good faith upon any subject-matter in which the party communicating has an interest or in reference to which he has a duty, moral or social, if made to a person having a corresponding interest or duty, is privileged, and the burden of proving the existence of malice is cast upon the person claiming to have been defamed." Citing the principal cases; Laughton v. Bishop, &c. L. R., 4 C. P. 495; Harrison v. Bush, 5 E. & B. 344.

The following instances have been adjudged to furnish the privilege in question: Words spoken in defence of a clergyman before a presbytery, M'Millan v. Birch, 1 Binney (Penn.), 178; 2 Am. Dec. 426. Words between church members in the course of disciplinary proceedings, Jarvis v. Hatheway 3 Johnson (New York), 180; 3 Am. Dec. 473. Saying that a voter put in two votes at town meeting, Bradley v. Heath, 12 Pickering (Mass.), 163; 22 Am. Dec. 418. A statement that the defendant believed that the plaintiff had stolen certain money, Faris v. Starke, 9 Dana (Kentucky), 128; 33 Am. Dec. 536. A statement that defendant believed that plaintiff had murdered defendant's son, Stallings v. Newman, 26 Alabama, 300; 62 Am. Dec. 723. A statement concerning the financial standing of a merchant to one proposing

« PreviousContinue »