Privilege

Hopkins v Sadlier

Queen’s Bench Division.

6 November 1893

[1894] 28 I.L.T.R 137
Holmes J.

Nov. 6, 1893

Libel—Privilege—Libellous letter written in answer to another.

A letter written in reply to another, though prima facie libellous, may be privileged, if the writer and receiver occupy confidential positions with the libelled party.

Appeal from the Recorder of Dublin. The libellous letter complained of was written under the following circumstances. Mrs. Hopkins, the plaintiff, instituted Habeas corpus proceedings against the Protestant Orphanage Society to obtain possession of her daughter, who had been placed there by her. Canon Sadlier and Mr. E. Johnston took an interest in her case and assisted her. Canon Sadlier suddenly withdrew his aid, and Mr. Johnston wrote asking why. To this letter Canon Sadlier wrote a reply stating that he had been informed by the Secretary of the Institution (who was absent in London, and could not be subpœnaed for the plaintiff) that Mrs. Hopkins wanted to obtain her daughter for immoral purposes—using the term prostitution. It was admitted by Canon Sadlier, on cross-examination, that the information amazed him, that it was a whispered communication, that he took no means to verify it, but believed his informant, and repeated the alleged libel in his answer to Mr. Johnston, without inquiry, and that his informant had denied that he said so in a letter to the press.

R. W. Murray, for defendant.—The letter was written by one adviser to another, who occupied the position of legal adviser, in reply to a request. The statement was a true reason, and repeated as it was heard. Both the occasion and the letter were privileged.

A.F.R. Stritch, for the plaintiff.—The defendant acted recklessly in making such a statement without attempt to verify it. The reason may have been truly given, but it was worded needlessly libellously. There was no fiduciary relationship between the parties, and even if there was, such recklessness and want of care would remove the privilege.

Holmes, J., held that the letter was a privileged communication, and the dismiss of the Recorder should be confirmed.

Green v. Blake and Others.

[1948] IR 242

MAGUIRE C.J. :
27 Feb.

This appeal arises out of an action for damages for libel. As regards the three last-named defendants, the libels complained of were contained in two issues of the Irish Racing Calendar. The first was in the issue of the 9th June, 1944. It was there published that these defendants who are the stewards of the Irish National Hunt Steeplechase Committee had received a report that the plaintiff, who had ridden the winner of a race at a point-to-point meeting had been handed lead after unsaddling and before weighing in, and that after fully investigating the matter and carefully considering all the evidence before them, the stewards warned the plaintiff off all courses on which their rules are in force. In the issue of the 16th June, 1944, it was published that these defendants had warned the plaintiff off all courses where their rules are in force. The three first-named defendants are stewards of the Turf Club and publishers of the Irish Racing Calendar. It was claimed against them that they published in the issue of the 9th June, 1944, the words above-mentioned and in addition a notice that they extended the sentence to all meetings under the Rules of Racing and that they repeated this warning-off notice in the issue of the 16th June, 1944.
Publication was admitted by both sets of defendants. It is not contested that the words published were defamatory. Both sets of defendants pleaded privilege. It was pleaded and contended at the trial that the plaintiff, by entering and riding a horse at a point-to-point meeting, had become bound by the rules applicable to point-to-point meetings which give the stewards of the Irish National Hunt Steeplechase Committee power to investigate any case which requires their interference, to give a final decision thereon, to warn off any person from the courses where the said rules are in force and to publish their decisions in the Irish Racing Calendar. The stewards of the Turf Club pleaded that the statements complained of were published with the consent of the plaintiff to be implied from his having accepted and become bound by the Rules of Racing. In addition they pleaded that they and the persons to whom the statements were published had a common interest in the subject-matter and that the occasions were accordingly privileged.
At the trial of the action before Haugh J. and a jury, the learned Judge ruled that the occasions of the publications were privileged. He declined to distinguish in this matter between the two sets of defendants. It was submitted to him that in order to be entitled to claim privilege on the basis of consent to the publications the three last-named defendants must show that when carrying out their investigations they acted in accordance with natural justice. The trial Judge did not accept this contention. He ruled, however, that the manner in which the investigation was carried out might be examined by the jury on the question of malice. In my view he was correct in this ruling, provided that evidence as to how the investigation was carried out would justify an inference that the statements complained of were published from a wrong motive amounting to malice. While he stated at one stage that there was not a scintilla of evidence of express malice against any of the defendants, the trial Judge ruled that it was open to the jury to find that the investigation had not been carried out with due regard to the requirements of natural justice, and that the jury might hold that this showed malice sufficient to destroy privilege. No difficulty arises in connection with the answer of the jury to the questions whether the words complained of were published and were defamatory. To these questions they returned answers in the affirmative. The trial Judge asked a further question”Were the investigations and enquiries on behalf of the defendants carried out with such a disregard of the ordinary requirements of natural justice as to show malice in the defendants to the plaintiff?” Later, at the request of the jury, he divided this question into two parts:”(a) Were the enquiries made on behalf of the defendants carried out with a disregard to the ordinary requirements of natural justice? (b) If so, did this disregard show malice in the defendants towards the plaintiff?” The jury answered (a) in the affirmative, but failed to agree as to (b). Damages were not assessed.
The defendants now move this Court to enter judgment for them on the findings of the jury. The plaintiff, by a cross notice of appeal, seeks to set aside the ruling of the trial Judge that the occasions on which the libels were published were privileged and asks us to hold that the plaintiff is entitled to judgment and that a new trial limited to the question of damages should be ordered.
It was objected by counsel for the respondent, in view of the fact that no judgment had been entered by the trial Judge, that no appeal lay to this Court.
It is clear that under the Judicature Act, 1877, s. 51, the Divisional Court of King’s Bench could have been moved to enter judgment on the findings of the jury in such a case as this. Sect. 41, sub-s. 1 of the Government of Ireland Act, 1920, provided that “where but for this provision an appeal under section 51 of the Supreme Court of Judicature Act, 1877, would lie to a divisional court, whether by way of motion for new trial or otherwise, an appeal shall lie to the Court of Appeal in Southern Ireland or Northern Ireland as the case may be instead of to a divisional court.”
The Court of Appeal of Southern Ireland continued in existence by virtue of Article 75 of the Constitution of 1922 until the passing of the Courts of Justice Act, 1924. By s. 18 of that Act the jurisdiction which at its commencement was vested in or capable of being exercised by the existing Court of Appeal was transferred to this Court.
We accordingly ruled that this appeal lay.
Certain matters are beyond dispute established by the evidence. The stewards of the National Hunt Steeplechase Committee on receiving the report referred to in the statements published in the Irish Racing Calendar deputed one of their number, Major Watt, to investigate the matter at Midleton in the County of Cork. The reason given for this step was that this was a convenient meeting-place for the witnesses whose attendance was thought necessary and whom it was thought unreasonable to bring to Dublin owing to the difficulties which then existed as to transport. Major Watt made some preliminary inquiries in the district and satisfied himself that the complaint was worthy of investigation. He then wrote to the Secretary of the Killeagh Point-to-Point Meeting asking him to secure that the necessary witnesses, including the plaintiff, should attend at the place appointed. He attended there and brought with him Colonel Knowles and Mr. Lee, a solicitor. A number of witnesses, including the plaintiff and his brother, gave evidence. A note was taken by Mr. Lee of what was said by each witness. This note of the evidence was subsequently forwarded to the other two stewards. Later the three National Hunt stewards met at the premises of the Phoenix Park Racecourse in Dublin and together considered the evidence thus recorded. It was at this meeting that the decision to warn off the plaintiff, subsequently published, was reached. The investigation was held in accordance with rule 16 (ii) (c) of the Irish National Hunt Steeplechase rules which is incorporated in the rules applicable to point-to-point meetings, Appendix B. to the rules above-mentioned. The warning-off notice is claimed to be made in accordance with rule 16 (ii) (f). Publication in the Irish Racing Calendar is authorised by sub-rule (iii) of the same rule.
The contention that the investigation and inquiries made were not in accordance with natural justice was based on the evidence of the plaintiff. He complained that until he arrived at Midleton he was unaware of the nature of the complaint which was to be under investigation. He admitted that he became aware of the nature of the complaint when he arrived at Midleton. At the trial, he complained that it was then too late to prepare a proper defence or to bring witnesses on his behalf. It is clear, however, that he made no protest at the time. He furthermore complains that he was not invited to be present during the whole of the proceedings. At one point in his evidence he appeared to challenge the accuracy of the record of his evidence. Later he agreed that “it was very like it, anyway.” He further takes exception to the proceedings at the Phoenix Park on the ground that he was not invited to be present to answer the charges against him.
As already stated, it is to my mind clear that if the trial Judge was right in ruling that the occasion was privileged, evidence as to the manner in which the investigation was carried out might be considered on the question of malice. In my opinion, however, there was no evidence of malice on the part of any of the defendants. Even if it were true that the Secretary of the Killeagh Point-to-Point did not inform the plaintiff of the charge against him, it was not suggested at the trial that Major Watt knew of this or was responsible for it. Beyond a vague suggestion, which was not pursued, that he had some interest in preventing the point-to-point being held, there was no question of the good faith and honest intention of Major Watt. It was admitted by the plaintiff that Colonel Knowles was a man of standing in the district”a man of fairness who would not do him”(the plaintiff), “a dirty trick.” Again, there is no imputation on the good faith and bona fides of the three stewards who considered the matter at the Phoenix Park. Having studied the evidence closely, I am of opinion that, accepting the plaintiff’s evidence which, of course, the jury was entitled to do, there was not a scintilla of evidence of malice against the three stewards of the National Hunt Steeplechase Committee.
It is, however, contended on another ground that it was necessary for the jury to consider the manner in which the investigation was carried out. The plaintiff at the trial submitted that unless the investigation was carried out in accordance with natural justice, the defendants were not entitled to rely upon the consent of the plaintiff to make the occasion of the publication of their decision privileged.
In support of this contention, reliance is placed on some passages in the judgment of Scrutton L.J. in Cookson v.Harewood (1). At page 481 he says:”Provided that the matter is within the jurisdiction of the stewards, and if they give the person affected reasonable notice of what he has to answer and an opportunity of being heard, the High Court is not a Court of Appeal from the stewards.”
It has to be remembered, however, that Scrutton L.J. was dealing in that passage of his judgment with a claim by the plaintiff, “that his name was wrongly placed in the forfeit list and the warned-off list.” Referring to the club cases in which this type of claim has been considered, he states that he finds that they “generally proceed on the right of property, that proceedings which deprive the claimant of his property must be carried out according to the rules of natural justice, a phrase which I do not like but which is continually used in the cases.”
It is true that later in his judgment dealing with the claim of libel he says:”The plaintiff by applying for a licence and acting as an official at a meeting held under the Pony Turf Club Rules, is bound by the rules to accept the decision of the stewards, provided, as I have said, that those proceedings are conducted in accordance with natural justice.”
In this passage I consider it not unreasonable to suppose that Scrutton L.J. had in mind the claim of the plaintiff that his name was wrongly placed upon the forfeit list.
There is no such claim in this case, which is solely for libel.
Even if the passage cited is with reference to the claim for libel, it is to be remembered that there was no basis for the contention that the proceedings in the case were not in accordance with natural justice. The passage cited, in my opinion, may properly be regarded as obiter.
In the case of Chapman v. Ellesmere (1), the effect of the protection given to a publication of a warning-off notice in the Racing Calendar in England again came up for consideration. The rules by which the plaintiff was bound contained a rule in similar terms to that included in the rules of the I.N.H.S. Committee authorising the publication of decisions in the Racing Calendar. The Master of the Rolls, Lord Hanworth, took the view that although the jury had found that the words published conveyed an untrue signification, they were protected because “what was published was the decision of an agreed domestic tribunal in the terms reached by that tribunal” (p. 450.) At p. 451 he says:”It would be, indeed, of serious import if the terms used by the agreed tribunal are to be conned over again by others outside, and a liability imposed upon the members of the tribunal for words used, because of an omission that the others would prefer to have seen introduced; provided always that the conduct of the tribunal has been honest and bona fide. . . . Parke B.’s words in Wright v. Woodgate (1) state the principle: ‘the occasion on which the communication was made rebuts the inferenceprima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact.’ ‘The occasion is privileged, the communication is protected,’ says Lord Shaw, in Adam v.Ward (2).”
The Master of the Rolls goes on to say:”It seems, therefore, that privilege attached on the above grounds to the publication in the Racing Calendar.”
Slesser L.J. in the same case came to the conclusion that the defendants might plead privilege because “the parties have chosen of their own accord to make the Racing Calendar a means of communication between the racing public and the Jockey Club.”
Romer L.J., at p. 473, puts it this way:”In my opinion the stewards of the Jockey Club and Messrs. Weatherby are protected from liability in respect of the publication in the Racing Calendar upon the ground that it was made upon a privileged occasion. I cannot myself doubt that the stewards owe a duty to all persons interested in racing under the rules of the Jockey Club to keep them informed of their decisions arrived at upon the matters that from time to time are brought before them in accordance with those rules. Nor can I doubt, in view of the provisions of rule 17, that as between the stewards and persons who submit themselves to the rules, the Racing Calendar is the proper medium for communicating those decisions. If this be so, the fact, if fact it be, that the communication is made in terms that are defamatory seems to me from the point of view of privilege to be immaterial, in the absence, of course, of malice . . . The question, as I regard it, is not whether having regard to rule 17 the plaintiff assented to the particular communication made through the Racing Calendar so as to enable the defence of volenti non fit injuria to be raised, but whether the plaintiff assented to the Racing Calendar being used in general as the medium for informing the racing public of matters which the stewards owe a duty to communicate to them.”
These words apply exactly here. The parties have adopted the Irish Racing Calendar as the means of communicating the decisions of the stewards to those who are interested in racing. The publication is made in fulfilment of a duty which the stewards have to the racing public. The question whether the occasion was privileged is to be tested by the criterion laid down by Parke B. in Toogood v. Spyring (1):”If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.” It is the occasion on which a statement is made which is privileged. In my opinion the earlier actions of a defendant which lead up to the making of the statement can only be enquired into for the purpose of showing, by affirmative evidence, in the words of Parke B., that there was “malice in factthat the defendant was actuated by motives of spite or ill-will independent of the occasion on which the communication was made.” Lord Dunedin in Adam v. Ward (2), says:”Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone may be taken by express malice which may be proved.” Lord Atkinson, at p. 335, puts it this way:”the communication being privileged, the presumption is in favour of the absence of malice in the defendant, and . . . the plaintiff must show actual malice. . . .”
In my view, when the stewards act under rule 16 (ii), (c), they are entitled to adopt their own procedure. Rule 164, relied on by Mr. O’Driscoll so strenuously, does not apply to point-to-point meetings. Furthermore, the fact that this rule was not incorporated in the Rules relating to point-to-point meetings shows that complaints in connection with point-to-point meetings are not regarded as requiring the same formality as those in connection with regular meetings. The only matter to be considered once privilege is established, is the state of mind of the defendant. As already pointed out, there is not a bit of evidence that the procedure followed was adopted with any purpose save that of endeavouring to discover the truth or falsity of the allegations made against the plaintiff.
It would, in my view, dangerously narrow the protection of privilege in such cases as this to lay down that in the case of a statement made following an investigation by an agreed domestic tribunal, the steps taken may be examined by a jury to see whether natural justice has been observed, save with a view to questioning the bona fides of a defendant in making the statement. Furthermore, it would introduce a new and troublesome element for the consideration of both Judges and juries. One obvious difficulty would be the explanation of what natural justice means. Despite the view of Scrutton L.J., I am of opinion that there is no justification for so modifying the law.
For these reasons I would allow the appeal of the three last-named defendants.
As regards the first-named defendants, it has been suggested in the course of the argument, that they are in a different position to the other defendants inasmuch as the plaintiff did not at any time consent to publication by them of their decision. No distinction is made between the two sets of defendants in the notice of appeal. I am of opinion that despite the fact that it is the normal and accepted means of communication between the stewards of the Turf Club and the racing public, the decided cases compel me to hold that the fact that it is available to the general public in addition to that section of the public which is interested in racing makes publication in the Racing Calendar in the absence of consent too wide to be protected by privilege. This is an unfortunate result for them, inasmuch as they would escape liability as publishers of the Racing Calendar, but may be liable because they have published a separate decision of their own. As against them I would allow the cross-appeal and remit the case for a new trial on the question of damages. It may well be that a jury would only award nominal damages against them because these defendants, acting in accordance with their rules, merely extended the punishment of warning off the plaintiff to the courses over which they exercise jurisdiction. This will, of course, be a matter for the jury on a new trial.

MURNAGHAN J. :
The action out of which this appeal arises was one for damages for libel. The three second-named defendants were stewards of the Irish National Hunt Steeplechase Committee and having received a complaint as to the plaintiff’s conduct at a point-to-point meeting, viz. that he had been handed lead after unsaddling and before weighing-in, they caused to be published in the Irish Racing Calendar a statement that the plaintiff had been warned off all courses on which their rules are in force. The remaining defendants, who were stewards of the Turf Club, are the owners and publishers of the Irish Racing Calendar and they also published in the Irish Racing Calendar that they had, in consequence of the action of the stewards of the I.N.H.S. Committee, extended the sentence to all meetings under the Rules of Racing.

At the trial held before Mr. Justice Haugh and a jury, the jury found that the words published were defamatory. The learned trial Judge ruled that the publication was made on a privileged occasion, and he overruled an objection made by counsel for the plaintiff who submitted that privilege did not exist if it were established that the stewards of the I.N.H.S. Committee had not observed the requirements of natural justice in an inquiry carried out by them previous to the publication. The learned trial Judge left to the jury a question dealing with malice, but subsequently, at the request of the jury, this question was sub-divided and was answered as follows:
“3. (a) Were the inquiries made on behalf of the defendants carried out with a disregard of the ordinary requirements of natural justice?” Answer: “Yes.”
“(b) If so, did this disregard show malice in defendants towards the plaintiff?” Answer “No agreement.”
The jury gave no answer on the question of damages.
On these findings the defendants, who all joined in their defence, have moved the Court to have judgment entered for the defendants. The plaintiff by notice of cross-appeal seeks to have set aside the ruling that the occasion was privileged and asks that, on the finding of the jury, the plaintiff is entitled to judgment and that a new trial be directed solely to assess the damages.
It was accepted in evidence that the plaintiff had become bound by the rules dealing with point-to-point steeplechases which are found in Appendix B to the Irish National Hunt Steeplechase rules. The rules dealing with point-to-point meetings specifically make applicable rule 16 and rules 173 to 177 of the I.N.H.S. rules. Rule 16 (ii), (c) gives the stewards of the I.N.H.S. Committee power “to investigate any case which appears to them to require their interference (whether or not referred to them by the stewards of a meeting) and to give a final decision thereon.” Rule 16 (iii) provides that “the stewards of the I.N.H.S. Committee are authorised (if they so think fit) to publish in the Racing Calendar their decision with respect to any matter within their jurisdiction or control and such publication shall be deemed sufficient notice to all parties interested in or affected by the decision . . . every such decision shall, save where otherwise provided, be final and conclusive.”
It was not disputed that the stewards of the I.N.H.S. Committee, who had investigated a proper complaint in a proper manner, would have the benefit of privilege in communicating their decision to persons who had an interest in being acquainted with the decision. The plaintiff sought, however, to establish that if there was an inquiry into his conduct, he was unaware of it, and that in any event the inquiry was not conducted with due regard to the requirements of natural justice.
The point-to-point meeting was held near Killeagh, County Cork, and owing to the great difficulty of transport at the time, the stewards did not think it reasonable to require the parties to attend at Dublin. Equally the stewards did not feel able to hold the inquiry in County Cork. What they decided to do was that Major Watt, one of the stewards, went to Midleton, County Cork, and evidence was taken from various witnesses which was duly recorded by Mr. William Lee, Solicitor, Kilmallock. Contrary to the evidence given by Major Watt and Mr. Lee, the plaintiff sought to persuade the jury that he heard little of the evidence, not being present at a great deal of it and not having the various statements read to him. When, however, the evidence was taken and recorded, it was considered by the three stewards at a meeting at Phoenix Park. The plaintiff was neither summoned to this meeting, nor was he sent the recorded evidence so that he might have the opportunity of stating in writing, if not allowed to be present, his observations.
Publication in the Irish Racing Calendar was admitted and proof of publication was not therefore required. The Irish Racing Calendar contains no information that would be of interest to others than people interested in racing, but the evidence discloses that it is available at the place of publication to any member of the public who pays the price. In the absence of other circumstances publication in such a way would be too wide to be covered by privilege. This is in accordance with the decision of the Court of Appeal in Hope v. I’Anson and Weatherby (1).
Where, however, the parties consent to publication in the Racing Calendar, such publication will be within the privilege. Such was the ruling of the Court of Appeal in England in Chapman v. Ellesmere (2), where publication in The Times was held outside privilege, but publication in the Racing Calendar was within the privilege, where the party consented to such mode of publication. Where, however, such consent does exist, the question arises whether the consent implies that the investigation will be held in accordance with the rules of natural justice. Scrutton L.J. expressed his opinion to this effect in Cookson v. Harewood (reported in a note to Chapman v. Ellesmere (2)) and such implication seems to me to be reasonable and even necessary. If it were not so, a person who had consented to publication in a particular manner would have no redress if a purported adjudication, highly damaging to him, were made without any proper inquiry and was subsequently published in the manner agreed upon. An investigation of the character contemplated by the person giving consent to a particular form of publication must include a fair opportunity of defence on the part of the party accused.
It was urged that, while a fair opportunity of defence was essential if a person sought a declaration that he was wrongfully deprived of his rights, e.g. in the case of expulsion from a club, there was no room for such a principle in an action for libel. I fail to see the ground for such a distinction. The opinion of Scrutton L.J., referred to, was given in respect of an action for damages for libel.
On the admitted facts of the case before the Court, I am of opinion that a jury could say that the investigation made by the stewards of the I.N.H.S. Committee at Phoenix Park did not afford the plaintiff a fair opportunity of making his defence, and if a jury did so find, there was no room for the plea of privilege.
The finding made by the jury at the trial that the inquiries made on behalf of the defendants were carried out with a disregard of the ordinary requirements of natural justice, may appear to have been an actual finding on the point involved. The jury, however, made this finding on a question of malice, and as, in my opinion, there must be a new trial, I am of opinion that the whole matter should again be submitted to the jury if the case again comes before a jury. In my opinion the plaintiff’s cross-appeal should be allowed but only so far as it asks for a new trial of the action, and the defendant’s appeal should be dismissed.

GEOGHEGAN J. :
I agree with the judgment of Mr. Justice Murnaghan for the reasons he has stated.

O’BYRNE J. :
The plaintiff was the owner and rider of a horse called Glen Rover, which ran in a nomination race at a point-to-point steeplechase meeting held at Killeagh, in the County Cork, on the 16th February, 1944. It is conceded that, by entering and riding his horse in the said race, plaintiff subjected himself to and accepted the Rules of Racing applicable to point-to-point steeplechase meetings.

These rules, hereinafter referred to as “point-to-point rules,” are contained in Appendix B to the rules of the Irish National Hunt Steeplechase Committee. It is provided by the point-to-point rules that point-to-point steeplechases are not governed by the rules of the Irish National Hunt Steeplechase Committee, save 1, as mentioned in the appendix; 2, as regards corrupt practices, and 3, as regards the rules relating to disqualification of persons and horses; and (by rule 1), rule 16 and rules 173 to 177 of the rules of the Irish National Hunt Steeplechase Committee are expressly incorporated.
Glen Rover won the race and was weighed in and the stake money was paid to the plaintiff on the 22nd March, 1944.
On the 23rd February, 1944, Mr. Edward Sweetman, the owner of the horse which was second in the said race, wrote to Mr. Harold Clarke, who was the registrar to the Irish National Hunt Steeplechase Committee, lodging an objection to Glen Rover on the ground that he did not carry the correct weight and alleging that, after dismounting and before weighing in, after the race, lead was given to the plaintiff. He also alleged that when plaintiff was weighing out, before the race, one of the clerks tipped up the scales with his foot.
It is not quite clear under what particular rule this objection was made. Rules 45 to 49 of the point-to-point rules deal with objections and these rules, as I understand them, contemplate that the objections should be made to the stewards of the meeting. An objection, purporting to be made under rule 47, was lodged with the local stewards, but appears to have been rejected by them on the ground that it was not made within five minutes of the weighing in as prescribed by that rule. Rule 48 provides that objections on the particular grounds mentioned in that rule may be received within fourteen days from the conclusion of the meeting. It is doubtful if Mr. Sweetman’s objection could be brought within the terms of that rule and, for this reason and in view of the fact that the objection was made not to the stewards of the meeting, but to the stewards of the Irish National Hunt Steeplechase Committee, I am of opinion that rule 48 may also be disregarded.
Rules 173 to 177 of the rules of the Irish National Hunt Steeplechase Committee dealing with corrupt practices and the disqualification of persons, are expressly incorporated in the point-to-point rules and it seems to me that Mr. Sweetman’s letter was addressed to the stewards of the Irish National Hunt Steeplechase Committee in pursuance of the said rules. Rule 175 (ii), which seems to be the material rule for the purpose of this case, provides, inter alia,that if any person shall conspire with any other person for the commission of any corrupt or fraudulent practice in relation to racing in this or any other country, he shall be warned off all courses where the rules of the Irish National Hunt Steeplechase Committee are in force.
Rule 16 provides that the stewards of the Irish National Hunt Steeplechase Committee have all the powers of the stewards of meetings and the further additional powers therein mentioned. The material powers seem to be: (ii), (c). “To investigate any case which appears to them to require their interference (whether or not referred to them by the stewards of a meeting) and to give a final decision thereon.” (ii), (f). “To warn off any person from all courses where these rules are in force, for such period as they think fit.” Rule 16 (iii) provides that the stewards of the Irish National Hunt Steeplechase Committee are authorised (if they so think fit) to publish in the Racing Calendar their decision with respect to any matter within their jurisdiction or control.
Mr. Sweetman’s letter appears to me to make a definite charge that the plaintiff, with the assistance of certain other persons, was guilty of a specified fraudulent or corrupt practice in connection with racing and it is admitted that the investigation of, and adjudication upon, such a charge was within the jurisdiction of the stewards of the Irish National Hunt Steeplechase Committee. The plaintiff had become bound by the rules and must be deemed to have assented to the exercise by the stewards of the powers thereby conferred on them.
The stewards investigated the charge that the plaintiff had been handed lead after unsaddling and before weighing in and, as a result of such investigation, they warned the plaintiff off all courses in which their rules were in force and they published the result of their investigation in the Racing Calendar of the 9th June, 1944. This is the matter complained of in par. 4 of the statement of claim and it is sought to make both sets of defendants liable therefor the last three defendants as having actually caused the notice to be published and the first three defendants as the publishers. Publication is admitted in the pleadings, and the jury have found that the words are defamatory. The main defence relied upon at the trial was privilege. The learned trial Judge ruled that the occasion was privileged, and thereupon, the following questions were submitted to the jury:”3 (a). Were the inquiries made on behalf of the defendants carried out with a disregard of the ordinary requirements of natural justice?” “(b). If so, did this disregard show malice in the defendants towards the plaintiff?” The jury answered the former of these questions in the affirmative, and disagreed as to the latter.
In these circumstances, the plaintiff contends 1, that the trial Judge was wrong in ruling that the occasion was privileged; 2, that, accordingly, the question of malice does not arise and 3, that he is entitled to judgment, the damages to be assessed by a new jury. The defendants, on the other hand, rely upon the said ruling and say that there was no evidence of malice and claim that they are entitled to judgment. Both contentions involve the validity of the ruling that the occasion was privileged.
In considering that question, it is common case that the plaintiff assented to the exercise by the stewards of the Irish National Hunt Steeplechase Committee of their jurisdiction and powers under the rules applicable to point-to-point steeplechases.
It is clear from the rules, and is not contested by the defendants, that the jurisdiction to inquire into the charge and adjudicate upon it is vested in the three stewards of the Irish National Hunt Steeplechase Committee and must be exercised by them. When this is once recognised, the local inquiry must be ruled out save as a step, and an important step, taken by the stewards for the purpose of collecting evidence. It is not such an investigation as is contemplated by the rules. The only inquiry and adjudication, within the meaning of the rules, was that held and made at the Phoenix Park on the 3rd June, 1944, when all three stewards were present.
It is well recognised that a domestic tribunal (such as the stewards), is not bound by the rules of procedure which would be appropriate in a court of law. I am, however, of opinion that such a tribunal is bound to carry out its investigations in accordance with the requirements of natural justice and I am further of opinion that the plaintiff, in accepting the appropriate rules of racing and submitting to the jurisdiction of the stewards, must be deemed to have done so on the basis that the stewards, in exercising their jurisdiction, would proceed in accordance with the said rules and in accordance with the principles of natural justice.
Suppose, for example, that a complaint were made to the stewards that a person, admittedly subject to the rules, had been guilty of some corrupt practice and the stewards, without any notice to such person or any explanation from him, adjudicated upon the matter and held the charge to have been proved and warned the person off and published their decision and the consequent warning off in the Racing Calendar; I do not think it could be successfully contended that such a person was bound by the adjudication nor would he, in my opinion, be deemed, in the circumstances I have mentioned, to have consented to the publication.
The ground on which the claim to privilege was based at the trial was that the plaintiff had submitted himself to the jurisdiction of the stewards. The validity of this claim of privilege seems to me to depend on the question whether the stewards, in adjudicating on the complaint, acted in accordance with the rules governing point-to-point steeplechases and also with the requirements of natural justice and the determination of this question must precede any ruling by the trial Judge as to whether the occasion was privileged. In so far as this ruling involves or depends upon disputed questions of fact, the facts must be found by the jury before the Judge can rule on the matter. This course was not taken at the trial and, accordingly, I am of opinion that the trial, as regards the matter complained of in par. 4 of the statement of claim proceeded on a wrong basis.
It is unnecessary to deal at any length with the matter alleged in par. 5 of the statement of claim, as the defence to that paragraph depends upon the validity of the defence to par. 4.
So far I have dealt only with the defence based upon the allegation that the plaintiff had become bound by the Rules of Racing governing point-to-point steeplechases and had subjected himself to the jurisdiction of the stewards of the Irish National Hunt Steeplechase Committee. The first-named three defendants, who are stewards of the Turf Club, seem to me to be in a different position. The two sets of rules of racing might have been so inter-related that a person subjecting himself to one set of rules would, thereby, also subject himself to the other set of rules. After a careful study of the rules applicable to point-to-point meetings, I am unable to say that a person subjecting himself to such rules must, as a matter of law, be held to have subjected himself also to the Rules of Racing. Neither am I in a position to say that the plaintiff did not, in fact, accept these rules and subject himself to them. If he did, it must be proved by evidence and found as a fact.
When submitting questions to the jury, the trial Judge left only one question as to damages. As the matters complained of in the statement of claim constitute separate and distinct causes of action against different sets of defendants, I am of opinion that damages should be separately assessed in respect of each cause of action.
For all these reasons, I am of opinion that the trial was unsatisfactory and inconclusive and that neither party is entitled to judgment. The entire action must be re-tried.

BLACK J. :
In this case we have four publications which a jury have found to be libels upon the plaintiff. There are two sets of defendants. The first three are the stewards of the Turf Club and the second three are stewards of the Irish National Hunt Steeplechase Committee, which I shall denote by the letters I.N.H.S. The Turf Club controls flat racing and the I.N.H.S. Committee controls steeplechasing. Neither body, of course, has any right to control anybody unless he submits to such control. All four publications were in the Racing Calendar. The first was a twofold libel and is treated in the statement of claim as two publications, one being by the first three defendants and the other by the second three. It announced that the plaintiff had been warned off all courses subject to the I.N.H.S. rules, and then went on to state the reason, namely, that the plaintiff when riding at a point-to-point meeting “was handed lead after unsaddling and before weighing in.” In Cookson v. Harewood (1),Scrutton L.J. said:”I am quite aware that it is a defamatory statement to say that a man is warned off.” I, too, have no doubt that the bare announcement of the fact that the plaintiff was warned off was defamatory. The reason given for it, being a plain charge of a specific act of gross dishonesty, was of course, separately defamatory. All six defendants were responsible for this first publication. None of them have disclaimed responsibility for it.
The other three publications merely announced the fact that the plaintiff had been warned off certain courses without stating any reason, and the responsibility for them was treated in paras. 6, 7 and 8 of the statement of claim as that of the first three defendantsthe Turf Club stewards alone.
The trial Judge held that the occasions of all the publication were privileged, and left the question of malice to the jury, on which they disagreed. The plaintiff now claims that none of the occasions was privileged, and that, proof of malice being thus immaterial, judgment should be given for him, the only outstanding question being damages. The defendants on their part claim that the occasions were rightly held to be privileged, and that there was no evidence of malice, wherefore judgment should be given for them.

The publication resulted from an inquiry into the said charge of dishonesty against the plaintiff directed to be held by the I.N.H.S. stewards. Only one of them was present at it, Major Watt, but he was assisted by two other persons, Colonel Knowles and a Mr. Lee. Evidence was heard on both sides and it was sworn that a lengthy note of it was placed before the two I.N.H.S. stewards, other than Major Watt, who fully considered it along with Major Watt, and then directed the first of the said four publications complained of in the Racing Calendar.
We have two questions before us: 1, were the occasions, or any of them, privileged? and 2, if they were, was there evidence of malice? I shall consider the first publication only in the first place. There are two arguable grounds for the plea that its occasion was privileged. The first of these grounds is that this publication was of a decision of the I.N.H.S stewards on a matter within their jurisdiction, and that the plaintiff submitted himself to a rule authorising publication in the Racing Calendar of any such decision, and thereby consented to it. If that be so, then Chapman v.Ellesmere (1) is a clear decision that the plaintiff cannot contest the plea that the occasion was privileged; for in that case the Jockey Club corresponded exactly to our Turf Club and to our I.N.H.S. Committee, and the plaintiff was in the same relative position as the present plaintiff. I accept Chapman v. Ellesmere (1) as an unquestionable decision on this point. The first question then is, did the plaintiff so consent, having regard to the circumstances stated by him?
By getting his nomination accepted as entrant and also rider at a point-to-point meeting under the I.N.H.S. rules, he submitted himself, in my opinion, to such of those rules as were made applicable to point-to-point races by Appendix B thereto. The material rule so made applicable is rule 16. Clause (iii) of this rule authorises the I.N.H.S. stewards to publish in the Racing Calendar, their decision on “any matter within their jurisdiction.” Two material matters are expressly placed within their jurisdiction: 1, by clause (ii) (c) of rule 16, “to investigate any case which appears to them to require interference (whether or not referred to them by the stewards of a meeting) and to give a decision thereon”; 2, by clause (ii), (f), of rule 16, “to warn off any person from all courses where these rules are in force for such period as they think fit.”
It is said that the foregoing shows that the plaintiff gave that consent to the first publication which makes its occasion privileged. In answer to this, it was contended that the plaintiff’s only consent was that in his submission to the applicable rules, and was conditional on their observance by the stewards. It is objected that these rules were not observed in two respects. The first respect was this. Rule 164 requires all complaints to be determined by three stewards before a decision thereon is authorised to be published, and it is said that the complaint against the plaintiff was never determined by three stewards. At the only inquiry where witnesses were heard, only one steward was present, and even if one other person taking partColonel Knowlesis treated as deputising under rule 164 for an absent steward, there would still be one of the required three stewards missing. The rule makes no provision for replacing two stewards by deputies. I cannot uphold this objection. In the first place, I do not think that rule 164 applies to point-to-point races at all. Appendix B to the I.N.H.S. rules provides that such races are not governed by I.N.H.S. rules except those it specifies as applicable thereto, and rule 164 is not one of those so specified. In the second place, even if that rule were applicable, I am not satisfied that it was not observed. It requires three stewards to “determine” a complaint, but not necessarily to hear witnesses in person. Judges determine cases, even when depending on evidence, and sometimes may not hear witnesses, the evidence being by affidavit or perhaps taken on commission. If the stewards read the evidence and then made their decision, I think they might be said to have determined the complaint.
The second respect in which it is said that the rules were not observed was in relation to rule 16, which, it is contended, requires every complaint to be investigated before publication of a decision thereon. It is said that the investigation into the complaint on which the publication was founded was conducted in disregard of the essentials of natural justice, and was, therefore, in the eyes of the law, no investigation at all. Here I must divide the first publication, for which all six defendants were responsible, into two parts. One part merely announced the bare fact that the plaintiff had been warned off. The I.N.H.S. rule 16 (ii) (f) empowers the stewards to warn any person off. I find nothing in this or any other rule that requires any preliminary investigation as a condition of the exercise of this power to warn off. As to this, I find myself in the same position as Slesser L.J. in Cookson v. Harewood (1). No doubt the corresponding rule in that case authorised the stewards to warn off any person “in their absolute discretion . . . without assigning any reason for so doing”; but, I think that if that rule did not require the stewards to conduct any investigation before the warning off, neither would it have done so if the words,”in their absolute discretion . . . without assigning any reason for so doing,” had been omitted. Of this rule, Slesser L.J. said:”It is not at all lear to my mind that as a general proposition he” (the plaintiff) “had any right to a hearing.” Similarly, under the I.N.H.S. rule 16, to which the plaintiff submitted himself, it is not at all clear to my mind that the present plaintiff had any right to a hearing before the stewards decided to warn him off under clause (ii) (f) of that rule and to publish the fact of the warning off under clause (iii). I am not satisfied that they were not entitled to make that decision and to publish it in the Racing Calendar on the mere receipt of information of the plaintiff’s misconduct from a source which they considered reliable, provided they did so without malice. That rule guaranteed an investigation, meaning a real investigation which alone would be recognised as such by law and common sense alike, and not a bogus investigation which would be an insult to both. A pretended investigation that disregarded these essentials would, in my judgment, be nothing but a bogus investigation, and I should think it monstrous that a man who had submitted to a rule on the faith of its promise of an investigation should be held thereby bound to accept a sham counterfeit of what had been promised him. Naturally the judges have recognised this. In Cookson v. Harewood (1), Scrutton L.J. treated it as axiomatic that the plaintiff’s consent to an inquiry by the stewards was impliedly subject to “the proceedings being conducted in accordance with natural justice.” So, in Maclean v. The Workers’ Union (2), Maugham J., as he then was, said it was “impossible to doubt that, if rules postulate an inquiry, the accused must be given a reasonable opportunity of being heard”another way of saying that the inquiry must be a real one. Likewise, in Hope v.I’Anson (3) Collins M.R. said:”The plaintiff could not be taken as a matter of law to have consented that decisions arrived at contrary to natural justice should be published”;and Stirling L.J., in turn expressly recognised the observance of the requirements of natural justice as essential to the validity of the inquiry, adding that one rule of natural justice was that a person against whom a complaint was lodged should be given a full opportunity of bringing his case before the tribunal. He cited the well-known club cases laying down the same principle as being wholly applicable to the case of an inquiry before the Jockey Club stewards. Matthew L.J. agreed. I do not, however, require this consensus of high judicial recognition to commend this principle to my judgment; for I believe the notion of fair play is, in our day, sufficiently evolved and widespread to render unthinkable a state of the law which would fail to accept that principle. If, then, the rules entitled the stewards to publish the facts of the warning off without conducting any investigation at all, it could hardly be said that they failed to observe the rules, because, having conducted a purely supererogatory investigation, they did so without due regard to the essentials of justice. If they were not obliged to investigate at all, they could not be obliged to conduct an investigation with due regard to the essentials of justice.
The position seems to me quite different with regard to that other part of the first publication which assigned a reason for the warning off that amounted to a plain charge of a specific act of gross misconduct. I find nothing in rule 16 which makes the preferment of a charge of misconduct a “matter within the jurisdiction” of the stewards, save and except clause (ii) (c) of rule 16, which empowers the stewards to investigate any case and give a final decision thereon. I think this clause gives the stewards jurisdiction to decide that a person has been guilty of specific misconduct, but only after they have investigated the case; and the plaintiff’s consent to publication involved in his submission to rule 16 is conditional on such an investigation having been carried out. An investigation being obligatory when specific misconduct is charged, it must be an investigation which the law recognises as such. On the foregoing reasoning, I am not satisfied that a disregard of the essentials of justice at the inquiry where the witnesses were heard would be material to the question of privilege, so far as the publication was confined to the fact that the plaintiff was warned off; but I am satisfied that such a disregard would be very material to the question of privilege in respect of that part of the publication which plainly accused the plaintiff of a specific act of gross misconduct. If rule 16 and the plaintiff’s submission thereto are required to privilege the occasion of the publication of a charge of specific misconduct, that submission was conditional on rule 16 (ii) (c) being carried out by the stewards. Therefore, before the Judge could rule whether the occasion was privileged or not, it was necessary for him to satisfy himself as to whether or not there had been due regard to those essentials at the investigation
which was in fact held. In my opinion, the trial Judge had not the materials requisite to satisfy himself of this when he ruled that the occasion was privileged, and so I think his ruling was premature. Moreover, I think he never had those materials even at the last moment when the jury answered his questions other than that of malice. What materials did the Judge require? In my opinion he required to know the truth about what took place at and in connection with the investigation and having found that out, it was for him to say whether that did or did not amount to a disregard of the essentials of justice. How was he to find out what took place? In my opinion, he had to find that out from the jury; for it was a pure question of fact and of the credibility of the witnesses. I should deem it most unsafe to ask a jury to say whether the facts they had found did or did not amount to a disregard of the essentials of natural justice. I do not think the term is suitable for laymen to decide about. In Cookson v. Harewood (1),Scrutton L.J. said he did not like the phrase. Neither did Maugham J. in Maclean v. Workers’ Union (2). In his admirable summary of the law he pointed out that most savages have no idea of justice in our sense and that to some extent the same was true of our own ancestors down to a time by no means remote. Hence he said that the phrase”must not be taken to mean that there is any justice natural among men.” I agree, but what then does it mean? We may, if we choose, describe as “natural” every evolutionary advance in our conception of justice. But for me, natural justice means no more than justice without any epithet. I take the essentials of justice to mean those desiderata which, in the existing stage of our mental and moral development, we regard as essential, in contra-distinction from the many extra precautions, helpful to justice, but not indispensable to it, which, by their rules of evidence and procedure, our Courts have made obligatory in actual trials before themselves. Many advanced peoples have legal systems which do not insist on all these extra precautions, yet we would hardly say that they disregard the essentials of justice. In recognition of this distinction of “essentials,” it is well settled in our law that we do not require, for it would not be practicable to expect, that domestic tribunals should observe all the rules, or take all the precautions, in the interest of justice that must be observed and taken in Courts of Law. But, we do require that they shall observe those unwritten rules and take those precautions which are fundamental essentials of justice in the sense which I hope I have not incorrectly indicated. I think it is generally accepted that one of those essentials is that an accused person should have notice of the charge to be made against him, and another of them is that he should know the evidence on which the case is going to be decided, and have an adequate opportunity of challenging it and of calling witnesses for this purpose. The plaintiff swore that these essentials of justice were denied him. Major Watt, Colonel Knowles and Mr. Lee swore that they were not. I am far from saying that, if I were to judge from the transcript alone, I myself could have believed the plaintiff in this regard; but the jury, who saw and heard the witnesses, might have done so. If they did, I am not at liberty to sit in judgment on the measure of their credulity.
If I were to put myself in the place of the trial Judge with the duty of ruling whether the occasion was privileged or not, I should have liked a finding as to whether the plaintiff, before he went to the Midleton inquiry, knew that a charge of misconduct was going to be made against himself, and if so, what it was. If he was subjected to a denial of justice through ignorance as to the charge prior to his going to Midleton, I should then have liked to know whether this was cured, as I think it would have been, if at Midleton, after he found out what the charge was, he was offered an adjournment as Major Watt, Colonel Knowles and Mr. Lee all swore he wasto enable him to produce any witnesses he pleased, which offer would have given him time to prepare his defence.
Finally, I should have liked a finding as to whether the evidence was read over in the plaintiff’s hearing, as Major Watt and Mr. Lee swore it was, and whether, on being asked, he said he did not want any witnesses re-called. If these facts had been found, the Judge would have been in a position to rule as to whether or not the essentials of justice were observed and the occasion privileged. Indeed, I do not say that it would not have sufficed to place him in this position if the question he suggested to the jury in the course of his charge had been specifically submitted to, and duly answered by, the jury. That question, in the learned Judge’s words, was whether “a fair opportunity of knowing what he was charged with and of making his defence and of producing witnesses on his own behalf” was given to the plaintiff. But no such specific question was submitted or answered. The specific question put was whether “the inquiries made on behalf of the defendants were carried out with a disregard of the ordinary requirements of natural justice.” I should consider an answer to that question an unsafe guide for the Judge in determining whether the occasion was privileged or not. The jury might have answered that question in the affirmative, as in fact they did, merely because they may have believed that the plaintiff was not made properly aware of the charge before he went to the inquiry, even though they might also have believed that at the end of the inquiry the evidence was read to him and that he was offered a re-call of witnesses and even an adjournment and a renewed hearing. I could suggest other possibilities, too, which would make the jury’s answer to the question mentioned an unsafe and insufficient guide for the Judge in ruling on privilege, even if the question had been put and answered before, instead of after, that ruling was given. In my opinion, therefore, so far as the second three defendantsthe I.N.H.S. stewardsare concerned, and so far as that part of their publication as charged an act of specific misconduct is concerned, the ruling that the occasion was privileged cannot stand. There was not adequate material to justify it. Neither was there adequate material to justify a contrary ruling. Hence, the trial was inconclusive and a new one is inevitable, since neither the plaintiff nor the second defendantsthe I.N.H.S. stewards could possibly get judgment until a ruling as to whether the occasion was privileged or not is obtained upon adequate material.
If a new trial is ordered on the above ground, we could evade the sole question we are asked to decide in the defendants’ notice of appeal, viz., whether there was evidence of malice. Would that be right? I think not. If the new trial Judge again ruled the occasion privileged, this time on adequate ground, and the jury found malice, we should almost certainly have the defendants’ appeal all over again, with waste of heavy costs and of this Court’s time, which is public time. If we can help to avoid that, and I think we can, by simply revealing our view as to whether there is evidence of malicea view for forming which all the evidence is before usI think we should declare that view. I deem it my duty to state mine, which is that the trial Judge was right in holding that there was evidence of malice to go to the jury, namely, the plaintiff’s evidence which, if true, would show that the inquiry was conducted with a grave disregard of the essentials of justice. No doubt, if there was such a disregard, it might have been due to mere ignorance or carelessness, neither of which would prove malice. But, there might be a case involving a disregard of the essentials of justice of such a type, and under such circumstances, as to make a wrong motive its most probable explanation, especially if those responsible were persons from whom such a disregard would be highly unexpected. It was the province of the jury to say whether this was such a case, and if they thought it was, no Court in my opinion could fairly say that such a conclusion went beyond the bounds of reasonableness. The credibility of the plaintiff’s story is a very different matter, but it is a matter for the jury and not for me. I gather from part of the charge that the trial Judge thought some parts of that story rather unconvincing, and if he did, I should not be surprised. Yet, some admissions of Major Watt and Colonel Knowles may have made the jury less disinclined to reject that story than they otherwise might have been, and perhaps ought to have been, though I express no opinion as to that. It was not denied that the I.N.H.S. stewards sent no official notice to the plaintiff of the charge to be made against him. Instead, a local official a Mr. O’Brienwas deputed to inform him of the inquiry. When the plaintiff said Mr. O’Brien did not do this, he was uncontradicted; for Mr. O’Brien was not called as a witness, and Major Watt admitted that he did not know whether the complaint of the plaintiff’s accuser was communicated to him or not before the hearing of the witnesses. I dissent entirely from the view that the I.N.H.S. stewards were not responsible for this. If they employed an agent to give the plaintiff a notice so vital for him to get, they were, in my view, responsible for seeing that their agent gave that notice. Then at the hearing the plaintiff was sent out of the room while evidence was being given against him, yet Major Watt had the aid of Mr. Lee, a solicitor, and Colonel Knowles admitted that he had experience of courts martial, but had never known them to adopt such a course. No explanation was offered as to why it was adopted at this inquiry. Again, a summary of the evidence was noted by Mr. Lee. This recording was, in Colonel Knowles’s words,”left to Mr. Lee, who took down the important points,”presumably the points that Mr. Lee thought important, though Colonel Knowles added, “we naturally directed.”Asked to explain, he replied, “Well, I suppose I probably said, ‘take that down,’ or something.” The note so taken was all that was placed before the two stewards other than Major Watt. It would thus seem that those two gentlemen who were required by their rules to adjudicate on the case had no voice in deciding what parts of the evidence should be communicated to them and what parts should not. All these matters might contribute, more perhaps than they should, but I could not say irrationally, to a jury’s acceptance of the plaintiff’s account of the proceedings at the actual taking of the evidence, if they could otherwise persuade themselves that that account was credible. If the plaintiff’s story should be once accepted, the inference of malice could not, in my view, be held to be inadmissible. I am not to be taken as suggesting that I should myself either accept the story or draw the inference of malice.
So far, I have been dealing with the position of the second three defendantsthe I.N.H.S. stewardsalthough I think the position of the first three defendants is the same, so far as the first publication for which all six defendants were responsible, is concerned. If the I.N.H.S. stewards establish that the occasion of this publication by them was privileged, I think that privilege enures for the benefit of all others responsible for that publicationthat is, for the benefit of the Turf Club stewards. As Bankes L.J. said in Smith v.Streatfeild (1):”Qualified privilege in one sense may be said to be the privilege of the individual . . . but as a defence it is attached to the publication.”
As regards the other three publications for which the first three defendants alone were responsible, the legal position seems to me quite different. In all I have said up to the present, I have assumedas, indeed, Hope v. I’Anson (2)appears to me to have expressly decidedthat there would be no privilege for any of the publications, unless the plaintiff had submitted himself to a rule authorising them or otherwise consented thereto. If that assumption is right, it seems to me to follow that the first three defendants could claim no privilege for any of the three publications for which they were solely responsible. This seems to me manifest, because I have not been referred to, and have failed to discover, a scintilla of evidence that the plaintiff ever consented to, or submitted himself to, any rule authorising any publication by the Turf Club stewards. The only consent he gave to any publication was given by his submitting himself to those rules of the I.N.H.S. Committee made applicable, by Appendix B thereto, to point-to-point races. He never submitted himself to the Rules of Racinga quite different codewhich are the only rules that authorise publications by the Turf Club stewards. In Chapman v.Ellesmere (3) the plaintiff had submitted himself to a rule authorising publication in the Racing Calendar, and the occasion was held privileged. In Hope v. I’Anson (2), the plaintiff had not submitted to such a rule, and the occasion was held not privileged. Thus, the main distinction between the two cases was the presence in one, and the absence in the other, of the plaintiff’s virtual consent. Unfortunately, as I think, some remarks in the judgments in Chapman v.Ellesmere (1) seem capable of meaning that even without the factor of the plaintiff’s submission to the rule, the occasion might have been privileged. Lord Hanworth M.R. said, at p. 449, it was “of deep importance to persons interested in horse-racing . . . to know that a certain horse had been found to be doped, and that the responsibility . . . had been visited upon the trainer.” He added that the defence of privilege did not rest only upon “the above general consideration.” Did he mean that this defence, although it did not, yet could rest solely upon the general consideration that he had just mentioned, namely the reciprocal duty and interest of the stewards and the racing public? He next distinguished Hope v. I’Anson (2) on the ground that there the plaintiff had not submitted himself to a rule authorising publication. But, he also drew a second and quite separate distinction, namely, that in Hope v. I’Anson (2) “the matter complained of and its possible interest as a racing matter to others was very different from that to be dealt with in the present case.”The difference he referred to, was that in Hope v. I’Anson (2)the complaint was of a common assault, and so presumably not a racing matter within the stewards’ province like the complaint in Chapman v. Ellesmere (1). He must have thought this a material distinction. If it was, then the inference would seem to be that if this material distinction had been absent in Hope v. I’Anson (2) and the complaint had been about a racing matter, the decision would have been different and the occasion privileged, notwithstanding that the plaintiff had not submitted himself to any rule authorising publication.
Slesser L.J., in turn, clearly suggested that publication in the Calendar was the only reasonable mode possible. He said, “where there is only one reasonably possible mode of communication . . . the use of that mode is privileged . . .”No doubt he added “when it is consented to by the plaintiff himself;” but I think the context suggests that this may really have meant that “when it is the only reasonably possible mode, it is privileged, and a fortiori when the plaintiff has consented.” If that is not the meaning, the dictum is puzzling; for (as I think Slesser L.J. recognised earlier) the consent alone would create the privilege. With the consent the occasion would be privileged, even though the mode consented to were not the only one possible. The fact of the mode being the only one possible could not, as far as I can see, affect privilege (as Slesser L.J. seems to have thought it could) except by itself sufficing to create the privilege, without any consent by the plaintiff. Slesser L.J. further said”. . . although the Racing Calendar might come into the hands of persons not interested in racing, yet on a reasonable view of the duty of the defendants to keep racing free from impropriety . . . they were entitled to publish their decision in their own organ . . .” (p. 468). He at once added that for this reason also he thought the occasion was privileged. This, then, was a second reason. The first reason was that the plaintiff had submitted himself to a rule authorising the publication. These quotations suggest to me that underlying this first reasonthe plaintiff’s virtual consentthere was an opinion that even without that consent, by reason of the duty of the stewards and the interest of the racing public, the stewards would enjoy qualified privilege for any publication to any, or all, persons interested in racing of a charge of misconduct against anybody, provided it related to a racing matter and that there was good faith and no malice in making it. Further, they suggest that the occasion would be within the privilege, though the mode of publication was use of the Racing Calendar, not because of any “general public interest in racing” (Slesser L.J. said that would not do), but because publication in the Racing Calendar was “the only reasonably possible mode” of reaching the section of the public interested in racing.
This wide theory of the stewards’ privilege, inconsistent, as it clearly seems to me, with the Court of Appeal judgments in Hope v. I’Anson (1), but which I have conjectured as possibly implicit in the judgments just quoted, would vindicate the ruling of Haugh J. in this case. It would put the Turf Club and the I.N.H.S. stewards in the same position in relation to the whole population that takes an interest in racing that one employer, for instance, occupies in relation to another who seeks information about a servant whom he is thinking of engaging. Such an employer does not need to make an investigation or hear the person he defames. Good faith and absence of malice protect him. So here, on this theory, all the occasions would be privileged, unless there was malice, even if the stewards had conducted no inquiry at all, but merely published what they heard from a source that they mistakenly, or even negligently, considered reliable; for in nearly all the cases of privileged occasion, the successful defendants published uninvestigated hearsay, and sometimes were actually negligent in doing so. It would, I think, follow that the whole question of whether or not the essentials of justice were disregarded at the Midleton inquiry would be irrelevant to the question of privilege, however material it might be on the issue of malice, since there could hardly be an obligation to observe the essentials of justice at an inquiry which need not take place at all. Whether such a theory of privilege underlies certain remarks made in Chapman v. Ellesmere (1) or not, I suspect from arguments I have heard in this Court that the Turf Club and like bodies are under the impression that it is the law. If it is, it vitally affects this case and forms the second of the arguable grounds for the plea of privileged occasion, of which I said at the beginning there were two, the first, with which I have fully dealt, being the plaintiff’s submission to certain rules. I therefore deem it imperative that a definite pronouncement on this theory should not be evaded here. It seems to involve that a small oligarchy that has appointed itself to lay down rules for horse racing with the laudable object of keeping that sport clean enjoys a preferential position in the law of libel denied to other people who might occupy a like position in regard to other activities of no less public importance than horse racing. I believe and hope the law recognises no such discrimination. Racing may be a royal sport, but its clubs have no special prerogative. Their rights are just those of any body which may set itself up in the interest of any other activity, be it sport, trade, or merely the furtherance of an ideal. If the devotees of every one of our countless human pursuits could have their juntas of self-constituted inquisitors, privileged to ruin any citizen by publishing libels upon him as to his conduct in their own particular activity, to all persons interested in that activity, the victim having no redress unless he could prove malice, I think such a law might well make the country that possessed it an admirable one to live out of. Beyond doubt some sectional inquisitions have a limited privilege in certain circumstances. The modern Traders’ Associations exemplify thisif the much-questioned decision in Macintosh v.Dun (2), is good lawonly when they do not work for profit. Their communications have a qualified privilege when made to one or more of their members actually contemplating dealings with the person to whom the communication relates. Why was this factor of the actual contemplation of dealings emphasised by the Lords in London Association for the Protection of Trade v. Greenlands, Ltd. (3) as it had been long before in Waller v. Loch (1) and in Storey v. Challands (2)?Surely not because it was immaterial. But what would the Lords have said if privilege had been claimed for a publication to the whole body of members, who neither sought it nor contemplated any dealings with the person it concerned? I suspect that they would have agreed with Palles C.B. in Fitzsimons v. Duncan and Kemp & Co. (3) when he refused to believe that the privilege extended to what he called”this startling extent.” Such an extension of privilege was rejected in Getting v. Foss (4) and in Elkington v. London Association for the Protection of Trade (5). It has likewise been rejected by the Superior Courts of Canada and the United States, as shown by the cases quoted by Vaughan Williams L.J. in Greenlands Ltd. v. Wilmshurst and the London Association for Protection of Trade (6) and in Gatley on Libel, 3rd ed., 283 n. I have found only two cases Barr’s Case (7) and Keith v. Lauder (8) which may have gone beyond the general trend. If so, they are outweighed, and from the latter of the two Hamilton L.J. was “unable to extract . . . any definite principle.” (See Greenlands v.Wilmshurst and the London Association for Protection of Trade (9).)
These racing clubs are in a weaker, rather than a stronger position than groups of traders who combine to get information about intending customers. The trader groups themselves have set up the inquisitors who claim the privilege, and, as Lord Buckmaster L.C. emphasised (at p. 27) in London Association for the Protection of Trade v. Greenlands (10),”they can themselves control . . . the person by whom the inquiries are made and the method by which such inquiries are conducted.” By contrast, the great racing-minded population has not set up these clubs and cannot control their methods of inquiry or see that they do not abuse their supposed privilege. Above all, no one could say that the great public interested in racing contemplated any dealings with the plaintiff. There is no evidence that even one member of that public did so. If, however, contrary to my view, clubs controlling racing can be treated like traders’ associations of the kind exemplified in the Greenlands Case (10), at least the conditions under which they may claim privilege for the occasion of a defamatory publication in respect of a racing impropriety are, in my judgment, as follows: (a) that the plaintiff must have submitted himself to some rule authorising such publication, or otherwise consented thereto, or (b) in the absence of such submission or consent by the plaintiff, the publication must be confined to a person or persons whose interest in it is not limited to a general interest in racing, but is supported by some existing or contemplated relationship or dealings between such person or persons and the plaintiff, or at least likely to be affected by the plaintiff’s misconduct in some racing matter.
Except under the conditions stated, I think that if Turf Club stewards or officials of like bodies defame anybody, they, like citizens in general, must prove the truth of what they publish or else make just amends to the victim. I believe this to have been the law so far, and unless and until a final decision determines otherwise, I am at liberty to express my hope that it always will be.
In sum, for the reasons stated, my conclusions are these:
1. That the publication of 9th June for which all six defendants were responsible, so far as it merely announced the fact of the warning off, was made on a privileged occasion by the second three defendantsthe I.N.H.S. stewards, and that this privilege enures for the benefit of the first three defendantsthe Turf Club stewards.
2. That so far as the said publication charged the specific misconduct of being handed lead, the question of privilege depends on whether the Midleton inquiry was conducted with a disregard of the essentials of justice or not, which question must be determined by the Judge at a new trial, after proper findings by the jury as to what took place at the said inquiry.
3. That the occasions of the three other publications for which the first three defendantsthe Turf Club stewards alone were responsible were clearly not privileged, since the plaintiff submitted to no rule authorising any publication by those defendants and gave no consent thereto. The issue of malice would thus become irrelevant as regards those defendants, leaving damages alone open. In Watt v.Longsden (1) a new trial was granted for misdirection on malice as regards two publications. But as to the third publication, it was held that the trial Judge had wrongly ruled the occasion privileged. It was then ordered that as to this publication the defendant at the new trial must be confined to the issue of publication. He was not allowed to re-open the plea of privilege or mend his hand by adducing new evidence or argument in support of it. Yet, if it is felt in the present case that at the new trial everything should be open to the first three defendants, as it will be to the second three, I should not demur, especially as I see no prospect of this making any difference to the result. In my opinion there must be a new trial.

 

Andrew Curneen v Alphonsus Sweeney

Supreme Court

30 July 1969

[1962. No. 1548 P.]
[1969] 103 I.L.T.R 29
O’Daly C.J., Lavery, Haugh, Walsh, O’Keeffe JJ.

 

O’Daly C.J.:

I have read the Judgment about to be delivered by Mr. Justice Lavery and I agree with it.

Lavery J.:

This appeal is brought by the plaintiff from the verdict of a jury and the judgment entered thereon by Murnaghan J. dismissing the action with costs.

The plaintiff claimed damages for defamation alleging that the defendant uttered a slander to one O’Carroll a clerk in his employment and to other of his employees on a date in June or July 1962.

The plaintiff is a solicitor and the defendant an auctioneer.

The defendant as auctioneer had sold a property to a Mr. Meyer. Mr. Meyer had informed the defendant that the solicitor to act for him in the matter was the plaintiff.

It is alleged that the defendant in his own office instructed Eamonn O’Carroll one of his staff in the presence of other employees—one Harrington is named — to tell Mr. Meyer, without naming him as the informant, that the plaintiff was an unreliable solicitor and unfit to act for him.

I need not set out the words attributed to the defendant. They plainly meant that the plaintiff was dishonest and could not be trusted. If spoken, they were defamatory and seriously so; calling for substantial damages.

The defendant in his defence denied the speaking of the words complained of.

That was a clear issue and the verdict decides it in favour of the defendant.

But the defendant also pleaded that if the words were spoken it was on a privileged occasion and without malice.

Though the nature of this plea is well understood it will make things clearer if it is set out.

Paragraph 3 of the defence reads: *31

3. If the Defendant spoke or published any of the words set out in paragraph 4 of the Statement of Claim (which is denied) such words were spoken and/or published in the Defendant’s capacity as auctioneer and house-agent acting on behalf of the said Paul Meyer referred to in the Statement of Claim, and in the interests of his said client, and in the honest discharge of his duty towards his said client, and in the bona fide belief that such words were true, and without any malice towards the Plaintiff: and spoke and/or published them only to the said Eamonn O’Carroll and another member of the Defendant’s staff, being a person or persons who had to deal with the said Paul Meyer on behalf of the Defendant and communicate with him on behalf of the Defendant and who had a corresponding interest and duty in the matter. Such publication was therefore privileged.
The defendant was entitled to make this plea as a defence alternative to his plea that he did not speak the words at all.

I defer comment on whether, in the circumstances, it was an appropriate plea.

At the trial, evidence of publication of the words was given and the relations between the parties: the defendant, the auctioneer; Meyer, the purchaser; O’Carroll, the defendant’s clerk and Curneen, the solicitor nominated by the purchaser to act for him were proved. At the close of the plaintiff’s case the claim of privilege and absence of proof of malice was submitted to the judge by the defendant’s counsel, and he was asked to rule that the case should be withdrawn from the jury and should be dismissed.

After argument, the judge reluctantly and with reservations as I understand the course of the trial, ruled that the occasion was privileged but that he would leave the issue of malice to be determined by the jury.

The defendant auctioneer was acting for the vendor. The plea of privilege was based on the suggestion that Meyer the purchaser had become a client of the defendant in the vague sense that being a stranger unfamiliar with local conditions the defendant had a moral or social duty though not a legal one to protect him from being over-reached.

It was argued that there was a relationship established of principal and client as between auctioneer and purchaser.

The judge having given his ruling the defendant went into evidence.

On his direct examination he said he had never had any dealing with the plaintiff in any previous sale and that he had never met him. On cross-examination he said at once that he did not know of anything to suggest that the plaintiff was other than a solicitor of the best reputation and that he accepted him to be so and had never thought, or had reason to think otherwise.

The defendant was entitled to plead privilege. He was entitled to stand on this plea at the trial. He did so up to the point when he gave evidence which demonstrated that the plea was completely unsustainable.

His counsel then withdrew the plea.

In my opinion it was unsustainable and must have been recognised as unsustainable at all times.

In my opinion the occasion of the alleged publication could not be considered privileged. There was not a relationship between the defendant and Meyer justifying a defamatory statement made to O’Carroll to be communicated to Meyer. The statement attributed to the defendant could not be considered a privileged communication.

Whatever doubts are possible on this issue which the judge ruled in the defendant’s favour there can, I think, be no doubt that the statement alleged could not be protected by privilege. The violence and the intemperate character of the language attributed to the defendant went completely beyond anything which could be appropriate even if the defendant considered the plaintiff to be an unreliable solicitor against whom Mr. Meyer should be guarded. These words, if used, were evidence of malice.

The defendant’s evidence that he did not know anything against the plaintiff and did not believe he was other than a reputable solicitor makes the plea of privilege, persisted in up to the end of the evidence at the trial, not only unjustified but unstateable.

If this course has brought about an unsatisfactory trial there must be a new trial.

In my opinion it has had that result.

The plea of privilege and the evidence relating to it apart, the issue in the action, *32 apart from damages was a single one—were the words spoken?

This issue involved the credibility of the witnesses and full enquiry into the circumstances.

The Court has the stenographer’s note of the evidence at the trial, transcribed, verified and adopted by the trial judge. There is not available a verbatim record of the application for a direction by counsel for the defendant nor of the judge’s ruling. There is no verbatim record of the submissions of counsel nor of the judge’s rulings nor of the learned judge’s charge to the jury.

The judge has supplied the Court with his notes and has made a report. Counsel have also supplied copies of their notes.

This material, full as it is, cannot supply the place of a verbatim record. There are discrepancies in the several accounts, omissions, and, where conflict arises, defects of recollection in giving explanations.

This is natural and what one would expect. Nevertheless, they make difficulties for this Court which is asked to examine the course of the trial both generally and in regard to a considerable number of specific matters.

The appeal may be broadly stated as based on the submission that the trial was unsatisfactory and that the verdict and judgment should therefore be set aside and a new trial be ordered.

On the material available I think the course of the trial can be ascertained sufficiently for the determination of the appeal.

I think it will be enough to examine the circumstances in which the evidence of Mr. Vorck was offered, admitted with reservations, and afterwords excluded.

I propose to set out these circumstances as I, doing the best I can on a study of the material, ascertain them without setting out how I reconcile the different accounts. To do this would be interminable and tedious.

The plaintiff adduced the evidence of Eamonn O’Carroll which, if accepted, proved the publication of the defamatory words alleged.

He offered the evidence of Mr. Vorck who would depose that the defendant on another occasion made a statement to him defamatory of the plaintiff of a similar character to that alleged to have been made to O’Carroll and relating to the retainer by Mr. Meyer of the plaintiff as his solicitor in the purchase of the property being dealt with by the defendant as auctioneer.

The defendant objected to the introduction of this evidence. Its admissibility was argued at length in the absence of the jury.

The learned judge’s ruling is recorded in his note. I do not set it out in full but so far as material. It was: (2) If the evidence is tendered I will admit it as relevant to establish malice. (3) The evidence is not admissible if the words uttered (that is by the defendant to Vorck) were spoken on a privileged occasion. (4) Whether the occasion was privileged or not could not be determined till the end of the evidence. (5) If he (the judge) should then hold the occasion privileged he would probably discharge the jury and make the plaintiff liable for the costs.

It appears that the point was whether what the defendant was alleged to have said to Vorck was protected by privilege and was not related to the plea of privilege in respect of the alleged publication to O’Carroll the subject matter of the action. This apparently was not understood and when opening this appeal Mr. Peart did not appreciate it and subsequently corrected his statement.

Mr. Vorck gave evidence and was cross-examined closely and at length. If his evidence is accepted, the defendant in relation to the transaction in respect of which the libel complained of was uttered, in substance repeated it.

At the conclusion of the evidence the defendant withdrew the claim of privilege and the judge then ruled that the evidence of Vorck was now inadmissible and should be *33 excluded from consideration by the jury. The judge directed counsel for the plaintiff in closing the case in his address to the jury not to refer to this evidence and warned that if it were referred to he would discharge the jury and order the costs of the trial to be paid by the plaintiff.

Counsel, addressing the jury, conformed to the direction of the judge and did not refer to the evidence of Vorck.

The judge then charged the jury and directed them to ignore the evidence of Vorck in considering their verdict. It does not appear that he gave any explanation to the jury as to why they should do so.

In my opinion the learned trial judge was correct in ruling that if the alleged statement to Vorck was made on a privileged occasion it might affect its admissibility and certainly the weight to be given to it.

This need not be considered because at no stage was it submitted that this alleged publication was privileged.

To make my view plain I should observe that a privileged communication can be of little, if any, indication of malice in the speaker.

There were two questions for the jury: 1. Were the words spoken? 2. If so, what damages?

The jury answered that the words were not spoken and therefore did not consider the matter of damages.

This statement of the course of the trial is selective, made out from the various notes of counsel, controlled by the note of the trial judge and his report. I do not think that there is, except in detail, any difference between the parties as to its accuracy.

It is not possible to say what the jury thought about the evidence of Vorck which they had heard.

They had not heard the arguments as to its admissibility or the basis on which it was admitted provisionally or why it was ruled out for their consideration.

It is reasonable to think that they were puzzled and may have thought that Herr Vorck was to be discarded as an untrustworthy witness.

These are difficulties inherent in trial by jury. A careful charge may adequately meet most of these difficulties and an appeal court, if it has the charge before it, can consider whether or not they have been met.

The issues now are:—
1. Was the evidence of Vorck admissible?
2. If it was, how far was it open to the jury to consider it on the issue of the publication complained of to O’Carroll?
It was admissible on the issue of malice and of damages: Pearson v. Lemaitre 5 M. & G. 700; Barrett v. Long 3 H.L.C. 395. This is admitted, but the respondent submits that as the jury, having found that there was no publication the fact that the judge ruled the evidence out does not affect the result or invalidate the verdict.

Was the evidence proper to be admitted for the consideration of the jury on the issue of publication?

In my opinion in the circumstances of this case it was admissible subject to a direction by the judge to the jury as to how they should deal with it.

Pearson v. Lemaitre establishes that the evidence of similar libels to other persons may be given. So given, it is difficult, perhaps impossible, to restrict a jury from taking it into account in their deliberation and determination of every part of the case.

In the present case the defendant gave evidence that not only had he not spoken the words complained of but that they were so far from his knowledge of, and opinion of the plaintiff that he could not have done so. *34

In considering this, it would be material to shew that he had made a similar statement to another person. The defendant’s state of mind has become an issue.

I do not overlook the fact that Vorck’s evidence was given before the defendant gave evidence and made his denial. This does not affect the position.

What has to be considered is the situation when the case was submitted to the jury.

The evidence of Vorck was in my opinion also admissible on the issue as to the speaking of the words complained of on another ground.

The general rule is that evidence of facts relevant merely from their similarity to the main fact is inadmissible.

To this rule exceptions must be made. One such exception relates to acts done as part of the same whole—I am citing Phipson On Evidence (10th Ed. 1963) p. 498. “Similar acts, done with respect to different parts of a common whole are sometimes admissible to prove the acts in question, although all the acts are not parts of the same transaction.” I quote these words as a statement of what is my own opinion and without reference to the authorities in the footnote.

The alleged statement to Vorck was similar to the alleged statement to O’Carroll and was part of the alleged purpose of the defendant to denigrate the plaintiff as the solicitor for Mr. Meyer.

Acknowledging the difficulties facing the Court, I must come to the conclusion that the trial was not satisfactory and that the appeal must be allowed and a new trial be directed.

Haugh J.:

I agree.

Walsh J.:

I also agree.

O’Keeffe J.:

I also agree.

Nevin v. Roddy and Carty

[1935] IR 408
Supreme Court

KENNEDY C.J. :
13 Dec.

The judgment of the Court will be delivered by Mr. Justice FitzGibbon.

FITZGIBBON J. :
This action was instituted to recover damages for libel. The plaintiff is a merchant and commission agent carrying on business in the town of Sligo, and he is also an Alderman for the Borough of Sligo. The defendant, Martin Roddy, is a T.D. for the constituency of Sligo-Leitrim, and was on the date of the publication of the alleged libel the registered proprietor of a newspaper called “The Sligo Champion,” in the columns of which the alleged libel was published in the form of a letter written to the editor for publication by the defendant, Frank Carty, who is also a T.D. for Sligo-Leitrim, and was at the time Chairman of the Sligo County Council.
It is unnecessary to set out the alleged libel in detail, or to refer to it beyond saying that the jury found that it imputed to the plaintiff that he had made statements that were deliberately false, for the purpose of deceiving the members of the Sligo Corporation and the public, that he knew the statements to be devoid of foundation, and that he was unfit for a public position.
The language used in the letter is susceptible of the interpretation placed upon it by the jury, and as there is no finding that the charges are true in substance and in fact the plaintiff is entitled to recover damages unless there is some legal excuse for the publication of which he complains.
The defence is based upon the circumstances which led up to, and are alleged by the defendants to excuse, the writing and publication of the defendant Carty’s letter. These are set out in the defence of Carty, and, lengthy though the recital is, the grounds of this judgment would be unintelligible unless they were repeated here:[Reads paragraphs 4 and 5 of Carty’s defence, set out ante pp. 402-405.]
In addition to these two special pleas, the defence of Carty contained the usual traverses and a plea of “fair comment,” that “in so far as the said words complained of consist of allegations of fact, the said words are in their natural and ordinary meaning true in substance and in fact, and in so far as the said words consist of expressions of opinion they are fair comments made in good faith and without malice for the benefit of the public upon the said facts, which are a matter of public interest.”
What the precise effect of a plea in this form, put forward by the writer of a defamatory letter for publication in the press, may be, is not easy to ascertain, and the plea appears to amount, in the circumstances of this case, to a justification of the libel as true in substance and in fact. As a plea of “fair comment,” in the ordinary sense, it is inapplicable to the case of the defendant Carty.
The defendant, Roddy, the proprietor of the newspaper in which the letter of the defendant Carty was published, pleaded traverses, “no libel,” and “2. The said words were contained in a letter published in the said newspaper, and were a fair and bona fide comment upon a matter of public interest, namely, the election or appointment of a Town Clerk to the Corporation of the Borough of Sligo and the public discussion and controversy to which same has given rise and the public discussion and controversy concerning same that took place at a public meeting of the said Corporation on or about the 19th July, 1933, and were published by this defendant bona fide, and in the usual course of his business as a public journalist and without any malice towards the plaintiff. 3. In so far as the said words consist of allegations of fact they are true in substance and in fact, and in so far as they consist of expressions of opinion they are fair comment made in good faith and without malice upon the said facts which are matters of public interest.”
There was a vacancy in the Town Clerkship of the Borough of Sligo, and the members of the Sligo Corporation, or a large majority of them, were determined to secure the appointment of one Robert Bradshaw. There was considerable opposition to this candidate in other quarters, and each party was exerting influence to secure its ends. The Appointments Commissioners, who had been requested, and whose duty it was, to recommend suitable candidates, sent down a list of three names which did not include the name of Bradshaw. His supporters alleged that improper influence had been brought to bear upon the Minister for Local Government and upon the Appointments Commissioners in order to keep his name off the select list, and, after much correspondence into which it is unnecessary to go, a deputation, which included the plaintiff and Hunt with three other members of the Corporation, met the President of the Executive Council by appointment at Government Buildings, on July 13th, 1933, to discuss the whole matter. There were also present four T.D.’s for the constituency, of whom the defendant, Carty was one.
At the meeting of the Sligo Corporation held on July 19th, there were upon the agenda two notices of motion in the name of the plaintiff, dealing with the appointment to the office of Town Clerk. The plaintiff moved that these two motions should be adjourned for a fortnight, saying that he did so “in view of the recent deputation which interviewed the President on the matter, as a result of which we may expect further developments, I will propose that the Council go into Committee to hear the report of that deputation.” After some rather acrimonious discussion, a Councillor said, “Let us hear what the deputation has to say,” and the plaintiff said, “Now, I am not going to ask that this Council go into Committee to hear the report of the deputation, as I had proposed to do. Councillor O’Connell has asked for it, and he is going to get it, and so will the members of the Council and the people of Sligo.”He and Councillor Hunt made long statements, purporting to be a report of the proceedings of the deputation to the President, from which the quotations in the defence of Carty are extracts.
It is, therefore, clear that the plaintiff intended his words to go forth to the public, he deliberately abstained from moving that the Corporation should go into Committee to hear the report of the deputation, “as he had proposed to do,” and he said “Councillor O’Connell . . . is going to get it, and so will the members of the Council and the people of Sligo.” Whatever charges were then made by the plaintiff were made with the intention that they should be broadcast in the press, and a man who appeals to the public through the medium of the press cannot complain if those whom he has attacked reply to him through the same public medium.
The learned Judge ruled at the trial that the language used by the plaintiff amounted to, or would reasonably convey to those who read it, a charge against the defendant Carty, of using improper influence in relation to the appointment of the Town Clerk of Sligo. This ruling was not challenged and no application was made that any question in respect of it should be left to the jury. The learned Judge also ruled that there was no evidence that the plaintiff and Hunt were “acting in concert,” as alleged by the defendant. This ruling is more open to question, as the plaintiff and Hunt were both members of the deputation, and they were making a joint report to the Sligo Corporation of the proceedings of the deputation. A jury might conceivably have found that each was supplementing the statements of his colleague, and that each adopted and accepted responsibility for the statements of the other if he did not expressly repudiate them. It is, however, unnecessary to consider whether the ruling of the learned Judge upon this point was correct, as it does not affect the conclusions at which we have arrived upon the whole case.
It was thereupon objected by the plaintiff that the only plea of privilege was in respect of a reply to “a joint attack,”and that as concert between the plaintiff and Hunt had not been established, there was no defence of privilege to an attack by the plaintiff alone. There is no express ruling upon this objection, which perhaps was not meant or taken seriously, but whatever be the case, it is reasonably clear that the defence of privilege is pleaded in respect of a reply to the charges contained in the speech of the plaintiff, as well as to those made by Hunt.
The following questions were left to the jury, and the replies to them are annexed.
1. Did the letter complained of impute to the plaintiff, Mr. Nevin
(a) That he had made statements that were deliberately false for the purpose of deceiving the members of the Sligo Corporation and the public? Answer: Yes.
(b) That he knew the statements to be devoid of foundation? Answer: Yes.
(c) That he was unfit for a public position? Answer: Yes.
2. Was the letter complained of a libel on Mr. Nevin? No answer.
3. Was the letter a “fair comment” on the statements made by Mr. Nevin at the Corporation meeting of the 19th July? No answer.
4. Was the defendant Mr. Carty actuated by malice in writing the letter complained of? Answer: No.
5. Damages. Not answered.
The plaintiff’s counsel contended that these findings were inconclusive and amounted to a disagreement, because there was no finding upon the issues of libel and fair comment, while the defendant Carty’s counsel contended that the finding of “no malice” amounted to a verdict for his client. The learned Judge acceded to the latter contention and gave judgment for both defendants. This Court has been asked to set aside the judgment and to direct a new trial upon the ground “that there was no evidence of any combination between the plaintiff and Hunt to attack the defendant, Carty, and that accordingly the learned Judge was wrong in law in ruling (if he did so rule) that the publication by the defendant, Carty, of the matter complained of by the plaintiff was made on a privileged occasion as alleged in paragraphs 4 and 5 of the defence of Carty; alternatively, that the learned Judge was wrong in law in ruling (if he did do rule) that the publication by the defendant Carty of the matter complained of by the plaintiff was made on a privileged occasion as alleged in paragraphs 4 and 5 of the defence of the said defendant, inasmuch as the said defendant’s language was beyond what was reasonably necessary or appropriate to the occasion”; that the findings were incomplete and inconclusive, and did not justify a judgment for both defendants; alternatively, that they did not justify a judgment for the defendant Roddy; that the finding of”no malice” was against evidence, against the weight of evidence, and without evidence; and finally, that the trial was unsatisfactory.
What the object of the insertion of the parenthesis “(if he did so rule)” may be, the plaintiff’s counsel have not attempted to explain, and I am unable to imagine. There is no doubt that the learned Judge did rule, in the plainest terms, that the publication of the alleged libel by Francis Carty was made on a privileged occasion, and the question whether he was right in so ruling is the first and principal question which we have to decide.
The jury has found that the words written of the plaintiff by the defendant Carty were defamatory, that is, that they were calculated to injure his character by bringing him into hatred, contempt, or ridicule, and if so, they constituted a libel if they were published without lawful justification or excuse.
“A libel is anything written or printed, which from its terms is calculated to injure the character of another, by bringing him into hatred, contempt, or ridicule, and which is published without lawful justification or excuse,”(per Parke B. Gathercole v. Miall (1)). To give a civil cause of action the defamatory words must be false, and the statement of claim must contain and averment to that effect, but it is not necessary to aver in the statement of claim that the words were spoken or written maliciously, because”If I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognises the distinction between these two descriptions of malice, malice in fact and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke themfalsely, it is not necessary to state that they were spokenmaliciously” (per Bayley J. delivering the judgment of the Court: Bromage v. Prosser (1)). It is to be observed that the term “malice” does not occur in the legal definition of a libel, the defamatory words constitute a libel, if they are “without lawful justification or excuse.” It rests upon the defendant to allege and establish such lawful justification or excuse, and every plea of this description, whether it be of privilege, fair comment, or any other matter of defence is nothing more than an argumentative traverse of the malice implied by law from the falsehood of the original defamatory statement. “In general,” said Parke B.,”an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander); and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits”: Toogood v. Spyring (2). But unless “warranted by any reasonable occasion or exigency,” the defamation will be actionable even though malice be negatived by the jury: Wenman v. Ash (3), where the jury found that the letter written by the defendant was a libel, but negatived malice in fact. The Judge at the trial, Williams J., had ruled that the occasion was not privileged, and the Court, being of the same opinion, discharged a rule nisi to enter judgment for the defendant.
In the present case the learned Judge ruled at the trial that the occasion or communication was privileged, and the first question for our decision is whether he was right in so doing.

The terms “privilege” and “fair comment” often lead to confusion in the discussion of actions for defamation, and all difficulty may be avoided by substituting the original phrase of Baron Parke “lawful justification or excuse.”
There is a series of decisions of the highest authority in this country which goes far to support the ruling of the learned Judge that the defendant had lawful justification or excuse for resorting to the columns of the “Sligo Champion” to defend himself against the imputations made upon his character by the plaintiff. In O’Donoghuev. Hussey (1) it was held by the Court of Exchequer Chamber, upon demurrers to the defence, that “where a party publishes in a public newspaper statements reflecting upon the conduct or character of another, the aggrieved party is entitled to have recourse to the public press for his defence and vindication; and if, in so doing, he reflects on the conduct or character of his assailant, it is for the jury to say whether he did so honestly in self-defence, or was actuated by malice towards the party who originally assailed him.”
“If the occasion be privileged, and the objection be, that the publication goes too far, and contains matter exceeding the privilege, the question whether it does so or not, is not a question for the Court to decide on demurrer, but one for the consideration of the jury on the plea of privilege.” This is the headnote to the report, but it consists of two passages taken verbatim from the judgment of the Court, delivered by Monahan C.J. That decision was subsequently considered in the Court of Exchequer and explained by FitzGerald B., who had been a party to it, in Murphy v. Halpin (2), which bears a superficial resemblance to the present case, and which it appears advisable to distinguish. The plaintiff Murphy was a guardian of the poor for the Rathdrum Union, who made, at a meeting of the Board, certain statements which were subsequently reported in the “Wicklow News-letter,” and which are described as follows by Deasy B. (p. 137):”These statements were perfectly relevant to the matter then before the Board, namely, the defendant’s application to the guardians to be reimbursed out of the rates the amount of the costs, which he had incurred in defending an action, brought against him for having caused some meat to be condemned as unsound. The plaintiff was addressing himself to that question, and stating reasons in support of his views. They are not defamatory expressions. They do not impute want of skill, corruption or any improper motive to the defendant; and I think there was nothing on the part of the plaintiff to authorise the defendant in circulating through the public press the defamatory statements which are the subject of complaint in this action and that it would be a very dangerous extension of the principle supposed to have been laid down in O’Donoghue v.Hussey (1) if we were to hold otherwise.” Dowse B., who concurred, quoted from O’Donoghue v. Hussey (1), as itsratio decidendi, the first passage from the judgment of Monahan C.J. set out in the headnote to that case. FitzGerald B. says (p. 135):”The ground of the decision, as I understood and now understand it, was, that the plaintiff, by the mode of publication which he adopted, had given the public, to whom the defendant’s communication was made, an interest in the subject matter of that communicationthat is to say, the plaintiff’s character as a witness. The Court had to consider the facilities which the public press, through the medium of pamphlets, periodicals (newspapers and others), affords for the rapid propagation of defamatory statements, and did consider these various instruments, not as what some of them represent themselves to be, organs of public opinion, but what they really are, appeals to public opinion. Appeals in such form (as distinct from mere printing), through the public press, are appeals to the judgment of a tribunal which has a recognised right to form a judgment. The ‘tribunal of public opinion,’ the ‘bar of public opinion,’ and the like, are not now mere phrases. For myself, I might, perhaps, think it better if it were otherwise; but it is not otherwise, and Courts of law must accept the fact, They have done so; and, in truth, every libel sustained as a fair criticism supposes the existence of such right of judgment in the public.”
The learned Baron states the question in O’Donoghuev. Hussey (1) thus (p. 134):”The question, then, was, first, had the defendant an interest in the subject matter of his libelthat is to say, the character of the plaintiff as a witness? Now, the plaintiff hadin the words of the pleaon the plaintiff’s credit held him up in a public newspaper to public odium, and the Court, I think properly, held that the defendant had such interest. Secondly, did the defendant make his communication to persons who had a common interest with him in the character of the plaintiff as a witness? It was to that very public that the plaintiff had addressed his testimony, and I do not think that he could be heard to say that the public had no interest in his testimony.”
As I read the cases, the Court distinguished Murphy v.Halpin (1) from O’Donoghue v. Hussey (2) upon two grounds: firstly, that the plaintiff Murphy, in making his speech at the Rathdrum Board of Guardians, had not appealed to the public at all; and, secondly, that in his speech he had not defamed the defendant Halpin. The first ground deprived Halpin of a right to appeal to the public as interested parties, and the second precluded him from alleging that he had done so in self-defence. The decision in O’Donoghue v. Hussey (2) was again considered by the Courts of this country in Dwyer v. Esmonde (3).It was held by the Court of Exchequer (Palles C.B., FitzGerald and Dowse BB.), that “where a party publishes charges affecting the conduct and character of another, the public at large have, as against him, such a right of judgment upon these charges as renders that public interested in everything material to their judgment being just and true, and the party aggrieved, having an interest in vindicating his character, has a privilege to publish matter of vindication and defence, and all such other matter as is material to the public forming such just and true judgment.”
“But where, on the face of the answering publication, statements appear which are in the nature of affirmative and independent charges of misconduct unconnected with and having no bearing upon the conduct of the party aggrieved, that is not a mere matter of excess, the party aggrieved has no privilege in relation to these statements, and a plea relying on such privilege is bad on demurrer.”Palles C.B., in delivering the judgment of the Court of Exchequer, stated the law as follows (4):”To constitute a privileged occasion, not only must the person publishing and the persons to whom the publication is made have corresponding interests or corresponding duties, but such interests must be in, or such duties in reference to, the subject matter of the communication. The determination, therefore, that any particular publication is privileged involves a consideration, as matter of law, of the nature of its subject matter.
“It is true that, when the occasion has been shown to be privileged, and the question of malice alone remains, the jury can consider the language used, and if stronger than called for by the occasion, can infer from it the existence of malice. But it has, I think, been to some extent overlooked, in the argument before us, that this consideration by the jury is wholly distinct from the previous determination (by the Judge, if the question arise at the trialby the Court, if, as here, it comes before it on demurrer) that the subject matter of the communication is one in, or in reference to, which the interest or duties I have referred to exist. The latter is of the essence of the existence of a privileged occasion; the former becomes material only upon the assumption that the occasion is privileged.
“The plaintiff, through the ‘Freeman’s Journal’ newspaper, reflected upon the conduct of the defendant; and, according to O’Donoghue v. Hussey (1), that act of the plaintiff gave to the defendant a privilege to address, in his own vindication and defence, that public whose opinion on the defendant’s conduct had been invited by the plaintiff. If in so doing he published defamatory matter of the plaintiff, its publication, bona fide and without malice would not be actionable.” “In general, no doubt, the right of criticism and judgment in the public is restricted to matters of public interest; but he who appeals to the public for their judgment upon a matter not public cannot, for the purpose of preventing his adversary’s defence, be heard to say that the public have not the right to pronounce the judgment which he so asked (2).” “Does, then, the defence here show that the matter complained of was matter of defence or vindication of the defendant’s conduct? We have been forcibly asked not to restrict this matter of defence within narrow limits. I am not disposed to do so. As a public appeal extends (so as to embrace the public at large) the class whom the person reflected on is privileged to address, so must the subject matter of the communication which he is entitled to make be extended to include anything which that public may reasonably deem matter of defence or vindication (3).”
He then held that none of the five separate imputations against the plaintiff had any reasonable or natural connexion with the charges alleged in the defence to have been made by the plaintiff against the defendant, and that the allegation that the defendant’s publication was in answer to the charges and in defence could not per semake matter of defence that which did not otherwise appear to be of that character. In the Court of Appeal it was held (by Ball C., May C.J. and Christian L.J.; diss.Morris C.J. and Deasy L.J.) that the defendant’s counsel were entitled to read and rely upon the whole of “The Address of the Tenant Farmers Association,” a document which had been ruled out by the Court of Exchequer (diss.Palles C.B.), as containing the charges against which the defendant claimed a right to vindicate his character. Once this document was admitted, it became clear that the defendant’s countercharges were relevant to the accusations made against him by the plaintiff, and were therefore privileged. Ball C. says (1):”The case of O’Donoghuev. Hussey (2), decided by the Irish Court of Exchequer Chamber, established that if a person be assailed in a newspaper, he is excused if in self-defence he has recourse to the public press, and brings forward bona fide, without malice, in the belief that they are true, statements having relation to the charge, which, in themselves, and apart from the occasion would be libels without excuse. The circumstances rebut the presumption of malice arising from the words.” May C.J. (at p. 253): “There is no difference, I apprehend, between this Court and the Court of Exchequer as to the rule of law applicable to this case. If a defendant in an action of libel relies on privilege as a defence, it is clear that it is for the Court to decide whether the occasion upon which he admittedly used the defamatory language attributed to him was privileged; it is, on the other hand, the province of the jury to find by their verdict whether the defendant abused the privilege which the law accorded to him, and exceeded its due limits.”
“In the present case the privilege claimed is one of self-defencethat the defendant was justified in publishing a statement in answer to the libel admittedly published against him by the plaintiffthereby explaining and accounting for the oppressive conduct towards the present plaintiff, imputed to him in that libel. It is admitted that a privilege of the nature of that claimed by the defendant extends only so far as to enable him to repel the charges brought against himnot to bring fresh accusations against his adversary. This privilege is in fact a shield of defence, not a weapon of attack. And if the charges contained against the plaintiff in the document published by the defendant clearly appeared to be without any reasonable connexion with the charges brought against the defendant by the plaintiff, I should agree with the decision of the Court of Exchequer. But at the same time, I think a Court of law should not overrule a plea of privilege on such a ground, unless it found itself in a position to decide, without any doubt, that the statements contained in the letter of the defendant had no reasonable connexion with the charges brought against him, in reply to which those statements are published.” Morris C.J. held that, even without the document which he considered inadmissible, the defendant’s countercharges had “not alone a reasonable connexion, but a direct and necessary connexion” with the charges to which they professed to be an answer, and concluded (at p. 257):”I should be prepared to hold that, unless the Court saw that by no reasonable intendment could the alleged libellous statements be matter of defence, the privilege extended to such statements; and if excess in the statement, that is matter for the jury from which they might infer malice.” Christian L.J. delivered a characteristic judgment which I shall not quote or epitomise, but in which he entirely approved the explanation of O’Donoghue v. Hussey (1) given by FitzGerald B. in Murphy v. Halpin (2), and Deasy L.J. concluded his concurring judgment by saying (at p. 265): “I do not think the Court should be very strict in interposing its authority to prevent the case from going to a jury who will be able to say whether the statements of the defendants are so irrelevant as to disentitle him to the benefit of the privilege to which prima facie he is undoubtedly entitled,and whether he has abused it by introducing certain matters not in his own defence but in order to libel the plaintiff.”
There is nothing in any English decision of equal or higher authority which conflicts in any way with the principles stated in these Irish cases, and it remains only to apply those principles to the present case.
It was the province of the trial Judge to rule whether the attack made by the plaintiff upon the defendant Carty afforded a reasonable excuse for the defendant to have recourse to the columns of the “Sligo Champion” for his reply. In this connexion it is material to observe the changes that have been made in the law of libel since the decision in Murphy v. Halpin (2), where it was held that the plaintiff, in making a speech at a meeting of a Board of Guardians, could not be said to have appealed to the public for their judgment, merely because his remarks were published in the “Wicklow News-letter.” Before 1881 Halpin might have sued the newspaper, and, if he had proved that the remarks were defamatory, the publisher would have had no defence. But the Law of Libel Amendment Act, 1888 (51 & 52 Vict. c. 64), which repealed sect. 2 of 44 & 45 Vict. c. 60, enacted by sect. 4 that: “A fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the above-mentioned bodies . . . shall be privileged, unless it shall be proved that such report or publication was published or made maliciously . . .”
The plaintiff, before he made the speech which contained the charges against the defendant, stated that he had deliberately decided “not to ask the Council to go into Committee to hear the report of the deputation, as I had proposed to do. Councillor O’Connell has asked for it and he is going to get it, and so will the members of the Counciland the people of Sligo.” To that tribunal he made his appeal, and, as Palles C.B. said in Dwyer v. Esmonde (1),”He who appeals to the public for their judgment . . . cannot, for the purpose of preventing his adversary’s defence, be heard to say that the public have not the right to pronounce the judgment which he so asked.” The occasionof Carty’s reply was therefore privileged, in other words, he had lawful justification and excuse for resorting to the columns of the paper in which the plaintiff’s charges had appeared. We must not be understood as laying down that a man who has been the victim of a defamatory statement may retort by libelling his detractor in any way he pleases. His reply must be relevant to the charge to which it professes to be an answer, but unless the statements made in it have “no reasonable connexion with the charges brought against him, in reply to which those statements are published” it is for the jury to say whether they are so excessive as to indicate that actual malice which will destroy the privilege. I do not say that there may not be excess so outrageous as to justify the Court in holding that no twelve reasonable men could find that it was excused; the analogy of son assault demesne may well apply to an attack upon character as well as to a trespass to the person. A man who has been assaulted may hit back, but if he hits unreasonably hard the jury may punish him for the excess, and I am not prepared to say that a Judge would be wrong who directed a jury that they must not allow the plea of self-defence where a powerful man used a lethal weapon against a weakling
who had committed a technical assault upon him. So where the libelled defendant has replied with a torrent of manifestly outrageous or irrelevant charges, the Judge ought to advise the jury that they should find express malice, or ought himself to rule that such charges are not covered by the privilege and are “without lawful justification or excuse.” In the present case we have scrutinised with anxious care the letter of the defendant Carty, and we are unable to say that there is any defamatory matter contained in it which is not sufficiently connected with the vindication of the defendant’s character to remove any objection to its publication founded upon want of relevancy, or so manifestly outrageous as to justify its withdrawal from the consideration of the jury. The course of cross-examination of the plaintiff afforded material for the consideration of the jury which might have justified them in drawing the inference that the defendant Carty was actuated by express malice in writing the letter of which the plaintiff complains, but this was quite properly explained to the jury by the learned Judge in the course of his charge, to which no objection was taken on this point, and the jury declined to draw an inference unfavourable to the defendant. This was a matter for the jury and the jury alone, and their finding upon it cannot be disturbed. It is objected that the jury have left unanswered the questions as to “fair comment,” and “libel or no libel.” But when it has been ruled by the Court that the occasion or the communication is privileged, the only question left for decision is one for the jury, whether they are satisfied that the defendant was actuated by express malice, and unless they answer this question in the affirmative the plaintiff is not entitled to a verdict, while if they answer it in the negative, their verdict on the whole case is for the defendant. It must not be overlooked that the defence of privilege admits the falsehood and defamatory nature of the statement, but seeks to excuse it. Unless the statement be both false and defamatory, the defence of privilege does not arise at all. If, on the other hand, the statement be both false and defamatory, but the occasion upon which it is made be privileged, the absence of express malice excuses it. The judgment entered for the defendant Carty must therefore stand. As the claim is in respect of a tort alleged to have been committed by joint tortfeasors, the verdict and judgment for one would appear to exonerate the other without more, although there is no express finding in regard to the defendant Roddy. It has been held that the innocent printer and publisher of a criticism prima facie fair may be mulcted in damages because the comment was in fact vitiated, and the privilege destroyed, by express malice, unknown to the printer and publisher, on the part of the writer of the article complained of: Thomas v. Bradbury, Agnew & Co. and Another (1). It is not necessary to consider whether that case was rightly decided, or whether the writer and printer of a libellous statement are strictly and in every case “joint tortfeasors,” an expression which has been the subject of discussion in some recent cases both in this country and in England; nor have we to consider whether the publication of a letter written by Carty which was privileged and written without express malice on his part, would have made him liable in damages if the editor of the paper to whom it was addressed had been actuated by express malice in printing and publishing it, for it has never been suggested that the defendant Roddy had any evil will to the plaintiff or that he published Carty’s letter otherwise than in the ordinary course of journalism. The plaintiff did not ask at the trial that any question as to express malice on the part of Roddy should be submitted to the jury, and if the Judge had been asked to submit such a question, it would, in our opinion, have been his duty to direct that, as there was no evidence to support an affirmative finding, the question ought not to be left to the jury. If, therefore, the writer of the letter had lawful justification and excuse for writing and publishing it, it is difficult to see any ground for holding that the innocent proprietor of the newspaper to which it was sent for publication is liable for damages. The converse case arose in Smith v. Streatfeild and Others (2) where “the writer of a pamphlet employed a firm of printers to print it. This was a natural and proper means of publishing it. He then distributed the pamphlet among persons having with him a common interest in its contents. It contained statements defamatory of the plaintiff. The writer was actuated by express malice. The printers acted in the ordinary course of their business and without malice.”It was held by Bankes J. that the privilege of the occasion extended to the printers, but that the malice of the writer defeated the privilege both for the writer and for the printers, and that they were joint tortfeasors and jointly liable to the plaintiff. In holding that the privilege of the writer protected also the printers of the pamphlet, Bankes J. undoubtedly extended the principle of the decisions in Baker v. Carrick (3), upon which he relied, and Boxsius v. Goblet Frères (1), inasmuch as there was no obligation upon the printers of Canon Streatfeild’s pamphlet similar to that which the relation of solicitor and client imposed upon the defendant in Baker v.Carrick (2) nor any business necessity in fulfilment of duty to a client such as that which was found to exist in Boxsiusv. Goblet Frères (1). But if a man is protected by law in making an appeal to the public through the columns of the public press I can see no ground for holding that the printer and publisher of the paper in which his appeal appears, or the printer of a handbill if he chooses to make his appeal to the public by such an instrument, is liable in damages for the publication, at least unless it is proved to the satisfaction of a jury that the publisher or printer, as the case may be, was himself actuated by express malice, and we express no opinion upon the question whether, in the latter event, the author of the appeal would be liable as a joint tortfeasor with the publisher or printer.
There does not seem to be any direct authority upon the liability of an innocent publisher of a privileged defamatory statement except in a case (3) to which Mr. Justice Murnaghan referred during the argument, viz.: a dictum of Phillimore J. following a ruling of Darling J. atnisi prius(4), that the proprietors of The Times were not liable, in the absence of express malice, for the publication of an extract from a report which was privileged under the Parliamentary Papers Act, 1840 (3 & 4 Vict. c. 9). How far this dictum may be good law, and whether its principle extends to writings or statements privileged otherwise than under that particular statute, it is not necessary for us to decide in the present case, and we express no opinion upon it.
There is, however, in the present case a further ground upon which the defendant Martin Roddy is entitled to rely in the absence of any finding of express malice. By sect. 4 of the Law of Libel Amendment Act, 1888, portion of which has been cited already, it is enacted “that the protection intended to be afforded by this section” (that is to reports of proceedings of town councils, etc.) “shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication and has refused or neglected to insert the same.” Roddy, having published in the “Sligo Champion” on July 22nd a fair and accurate report of the proceedings of the meeting of the Sligo Borough Council held on July 19th, at which chargeswhich the learned Judge has held were defamatory of the defendant Carty were made, was hound in self-defence and in his own interest, in order to obtain “the protection intended to be afforded by this section,” to insert at Carty’s request a reasonable letter or statement by way of contradiction of such report. The Judge has ruled that Carty was justified in making some reply to the plaintiff’s charges, the jury has found that the reply which he did make was not in excess of his rights, and it seems to follow of necessity that Roddy cannot be liable in damages for having printed it, in the absence of any suggestion, not to say evidence, that he was actuated by malice in the publication of Carty’s letter in the form in which it was written. This defence seems to be raised, perhaps rather inartistically, by paragraph 2 of the defence of Martin Roddy, but even if it be not available, the finding of no malice in the writer of the letter and the consequential judgment for Carty protects his joint tortfeasor Martin Roddy in the absence of express malice on his part.
The appeal fails, and should be dismissed with costs.

Magrath v Finn

Court of Common Pleas.

8 May 1877

[1877] 11 I.L.T.R 103
Morris C.J., Keogh, Lawson JJ.

 

Keogh, J.

[Is not the defendant forbidden by the Synod of Thurles to denounce any man by name?]

That cannot affect this question; there is nothing on the record to enable the Court to take cognizance of any such decree. This case is much stronger than Davies v. Snead (L. R. 5 Q. B., 608), where the interest of a parishioner in the character of his rector was held sufficient; and Whitley v. Adams (15 C. B. N. S. 392), where the interest was that of an incumbent in his parishioners. In Somerville v. Hawkins (10 C. B. 583), the speaking of slanderous words about a dismissed servant to the servants of the defendant, then in his *104 employment, was held privileged. The duty of the defendant here, as a priest, was much greater to admonish his parishioners from associating with a man of evil repute. Communications made in discharge of a moral duty are privileged:1 Starkie, Slander, 4th Ed., 526, 527. The duty of a preacher is to rebuke sin; but if the contention of the plaintiff be right, the greater the sin in the parish the more silent should be the priest. If a priest were preaching at Spike Island to the convicts, would he not be entitled to plead privilege to an action by a convict, for rebuking him for the offence for which he was suffering imprisonment?

Lawson, J.

[The conviction could be thrown down in that case, and would support a justification.]

The Book of Common Prayer of Edward VI. states, at the Communion Service, that if any of them be an open and notorious evil liver the curate shall call and advertise him not to presume to come to the Lord’s table.

[Lawson, J.—He should be prepared to justify his accusation. Keogh, J.—It is contrary to natural justice to condemn a man unheard.]

A clergyman entrusted with cure of souls has the right to admonish his flock. In Jenkins v. Cooke (L. R. 4 Ad. & Eccl. 463; 1 P. D. 80) an action for slander was not thought of.

[Lawson, J.—There was nothing ‘said’ in that case; the clergyman merely refused to administer the sacrament. Morris, C. J.—Where do you draw the line? Do you include street preachers, and every person preaching a sermon? There are a large number of persons who are not entrusted with the cure of souls. We know there are a large number of sects, and that, in fact, preaching is only limited by capacity to do so. Amongst Quakers the female element predominates.]

The principle applies virtute officii only to any clergyman of the late Established Church, or of the Roman Catholic Church, in the discharge of a moral duty, bona fide preaching a sermon.

Morris, C. J.

[It is admitted the defendant was violating his duty—in fact, committing a canonical offence—in naming the plaintiff from the altar, and yet you call it a moral duty.]

The decree of the Synod of Thurles may be important at the trial, when the excess in language will be for the jury; but, on this demurrer it is not to be assumed even that the plaintiff had been mentioned by name. The privilege claimed is not more extensive than that conceded to barristers, or members of the House of Commons.

Murphy, Q.C., in reply.—The use of slanderous words from the pulpit or altar has never been held prileged. The Bishop of Sodor and Man’s case was one of defence, not attack, and merely decided what had been laid down in O’Donoghue v. Hussey. The interest in this case is much less than in Purcell v. Sowler, where the defence was held bad. A clergyman has no more privilege than a laic to bring a public accusation affecting a private individual, and must be prepared to support it by a justification.

Morris, C.J.—This action is brought against the defendant, a parish priest, complaining of his use of expressions towards the plaintiff of a slanderous character, and the defence is one of privileged occasion, based on the fact of the defendant being a parish priest, and of the duty arising from that office of rebuking and admonishing sinners by name. The argument of the junior counsel in support of the plea rested the privilege on the relative position of the plaintiff and defendant, and, as flowing from it, a duty to admonish the plaintiff, which, by the demurrer, it is admitted defendant did bonâ fide and believing in the truth of the statement. The case of Somerville v. Hawkins (10 C. B. 583) was cited, where a master spoke of a servant in presence of other servants, in words which under other circumstances would have been actionable, but which were there held privileged. But Mr. Heron, for the defendant, claimed a privilege as arising to the defendant as a clergyman, virtute officii, of rebuking sin, and, by way of illustration, naming a particular person. There is no authority for such a proposition, and indeed Mr. Heron, when asked was the rule to be confined to Roman Catholic clergymen, and, if extended to clergymen of other denominations, where he would draw the line, answered that he would confine the rule to clergymen having the cure of souls, whom he defined as Roman Catholic priests and clergymen of the late Established Church. Such a distinction is merely arbitrary, and if the privilege existed at all it should be extended to all clergymen of every denomination who preached sermons, or indeed to laymen, many of whom also preach sermons. We cannot adopt the analogy of the privilege of the members of the House of Commons, and of barristers, which has been also pressed upon us. Such a privilege is founded upon other and different principles, and we can find no public benefit in extending this class of cases to persons preaching a sermon, and naming or plainly pointing at particular persons. The moral duty of the defendant has been much pressed upon us; but, it is admitted that the defendant, in denouncing the plaintiff by name, was violating the provisions of one of the decrees of his own Church. It is, therefore, a solecism in reasoning to say that there was a duty incumbent on the defendant, when in the very speaking of the words he was violating his duty. Apart, however, from any such question, we are of opinion that the plea of privilege cannot be extended to the occasion of delivering or preaching a sermon, and on this ground we must allow the demurrer.

Lawson, J.

I never thought this case arguable, and feel some surprise that in the year 1877, for the first time, such a privilege should be claimed, which would not be tolerated in these countries even at a period when ecclesiastics were hardly subject to the laws of the land. I am of opinion that neither from pulpit nor altar can slander be uttered, and if it is, the person who does so must justify its truth or be prepared to take the consequences.

Keogh, J.

I never entertained a doubt about this case from the moment it was mentioned.

 

Hynes-O’Sullivan v. O’Driscoll

Finlay C.J. [1988] IR 436

 

Finlay C.J.
21st July 1988

This is an appeal brought by the plaintiff against the dismiss of her claim for damages in the High Court. The plaintiff is a consultant psychiatrist holding appointments from the Southern Health Board and also engaged in private practice in Cork. The defendant is a solicitor practising in Cork. In May, 1982, the defendant was retained to act for the husband in matrimonial proceedings which were to be held in the High Court in Dublin. He was satisfied that the plaintiff was a necessary and relevant witness to give evidence on behalf of the husband with regard to examinations she had made of the wife some years previously. The defendant had before this occasion neither met nor had professional dealings with the plaintiff. At the defendant’s request his client spoke to the plaintiff about attending as a witness and she requested that the defendant should contact her. Two telephone conversations then took place between the plaintiff and the defendant as a result of which the plaintiff indicated that she was not prepared to travel to Dublin to give evidence in the case. The defendant caused a subpoena ad testificandum accompanied by a viaticum of £20 to be served on the plaintiff and she did attend in Dublin at the family law court on the morning of Tuesday, the 11th May, 1982, the date fixed for the commencement of the hearing of the case. The case was settled after luncheon time without having commenced, and the plaintiff was informed of this by the defendant and returned home. Approximately a week later the plaintiff submitted to the defendant an account of her fees for attending court as a witness, in the sum of £300. The defendant wrote in reply seeking a breakdown of this figure, and to that request there was no response to him from the plaintiff.
On the 3rd June, 1982, the plaintiff wrote to the Incorporated Law Society enquiring as to whether the Society had laid down any guidelines with regard to the issuing of subpoenas to professional people so as to enforce their attendance at court at extremely short notice. In that letter she set out her version of her dealings with the defendant and complained that the defendant had acted in a reprehensible fashion to cause her such harassment. She also sought the help of the Society in obtaining her fees, stating that the seeking by the defendant of a breakdown of them was a further insult to her professional integrity. The Law Society sent a copy of this letter to the defendant and asked him for his comments on it.
On the 24th June, 1982, the defendant wrote a lengthy letter to the Law Society commenting on the letter which the plaintiff had written and giving his version of the events leading to her attendance in court as a witness. In the course of that letter the defendant accused the plaintiff of duplicity and described her as a person “who holds scant regard for professional ethics and even less for the solemnity of the law.” He stated that when he informed the plaintiff that he would be obliged to serve a subpoena upon her to secure her attendance at court on behalf of his client, she replied that if he did she could send him a “sick note.”He also stated that she attempted to avoid service of the subpoena and that she was obsessed with the payment of her fees.
On the 25th June, 1982, the defendant sent a copy of this letter to the secretary of the Irish Medical Association (“the I.M.A.”) with a covering letter making a formal complaint against the plaintiff:
(1) of a willingness alone or in conspiracy with other members of the medical profession to falsify a medical certificate on her behalf;
(2) of a lack of integrity demonstrated in the misleading complaint she made to the Law Society against the defendant; and
(3) of demanding exorbitant fees and expenses for a court appearance.
The secretary of the I.M.A. acknowedged that letter and stated that his Association had no function in relation to such complaints, which were a matter for the Medical Council.
The defendant on the 13th July, 1982, wrote to the secretary of the Medical Council in terms identical to those contained in his letter to the secretary of the I.M.A. and enclosed a copy of his letter of the 24th June, 1982, to the Law Society. The Medical Council sought the observations of the plaintiff upon the complaint made by the defendant and, having considered them, took no action on the complaints.
On the 5th June, 1985, the solicitors for the plaintiff wrote to the defendant claiming an apology, compensation and the payment of costs. In a portion of this letter the claim appeared to be for an apology and costs only. This request was repeated but no reply was made by the defendant to any of the letters. These proceedings were then instituted.
The plaintiff claims damages for libel in respect of (1) the letter written to the Law Society; (2) the letters written and sent to the I.M.A.; and (3) the letters written and sent to the Medical Council. The defendant in his defence, in addition to certain denials, pleaded that the letters complained of were all written without malice on occasions of qualified privilege and furthermore pleaded justification of the allegations (a) that the plaintiff threatened, if served with a subpoena, to send a sick note; (b) that the plaintiff made a misleading complaint to the Law Society; and (c) that the plaintiff demanded for appearance in the High Court fees that were exorbitant.
The action was tried in the High Court by a judge sitting with a jury. At the conclusion of the evidence for the plaintiff an application was made by the defendant to withdraw the case from the jury. The learned trial judge then ruled that while he was satisfied that it had been established that the writing of the letter to the Law Society and to the Medical Council were each occasions of qualified privilege, since it had not been established that the plaintiff was a member of the I.M.A., he (the judge) could not hold that the sending of the letters to that body was an occasion of qualified privilege unless the defendant in evidence established that he had an honest belief that the I.M.A. was the appropriate body to which to make a complaint concerning the conduct of the plaintiff. Accordingly, he decided that the defendant had a case to meet.
Upon the conclusion of the evidence for the defendant the application for a dismiss was renewed. The learned trial judge then ruled that the defendant had an honest belief that the I.M.A. was the appropriate body and that accordingly all the letters were published on occasions of qualified privilege. He further ruled that there was no evidence in respect of any of the letters complained of, which a jury could infer was more probably consistent with malice than otherwise, and that accordingly the case must be dismissed. Against these findings and this order the plaintiff appealed to this Court on a number of different grounds.
The submissions made on behalf of the plaintiff in the course of the appeal can, however, be summarised under the following broad headings.
1. In the absence of proof by the defendant of an actual interest in the I.M.A. in receiving the complaint, no occasion of qualified privilege exists in respect of the letters sent to that body; honest belief by the person publishing the statements complained of being incapable in law of creating such privilege.
2. The claim concerning the letters sent to the I.M.A. should therefore have been left to the jury, subject only to the defences of denial and justification.
3. In ruling on the issue of malice the learned trial judge erred in law in that having considered a number of alleged separate instances of malice, he concluded that there was no case to be left to the jury because the plaintiff had failed to prove the probability of malice in more instances than she had succeeded in so proving.
4. That even if the learned trial judge applied the correct test to the issue of malice to be left to the jury, he erred in concluding that it had not been established in one or more particulars as a probability which should have been left for their consideration.
On behalf of the defendant it was contended:
1. That on the admitted and uncontroverted evidence the defendant’s plea of justification had succeeded and, even though that was not the basis on which the case was dismissed in the High Court, this Court should, if satisfied that that was the legal position, dismiss the appeal.
2. That the proper test in law which should be applied to the defence of qualified privilege in respect of publication to the I.M.A., was that if it were established to the satisfaction of the learned trial judge that the defendant had an honest belief in the fact that this was a body with an interest in receiving the complaint and that if he had taken reasonable care in all the circumstances of the case in arriving at that belief, in law the occasion was the subject of qualified privilege.
3. In the alternative, that proof of the fact that fees due to the plaintiff were paid by the defendant’s client through the medium of the I.M.A. was sufficient proof of an interest in that body in receiving a complaint at least with regard to the charging of exorbitant fees.
4. That none of the items of evidence relied upon by the plaintiff as proof of malice, either viewed individually or collectively, constituted evidence more consistent with malice than otherwise.
In respect of the issues raised by these submissions I have come to the following conclusions.
Plea of justification
The plaintiff made the following admissions in evidence relevant to this issue:
(a) That when the defendant stated that he would be obliged to have a subpoena served upon her she said she would send him a sick certificate.
(b) That when a person came to serve a subpoena on her in her consulting rooms she heard the receptionist stating that she (the plaintiff) was not in, although she was standing in an adjoining corridor and was aware of the purpose of the visitor, namely, to seek; to serve a subpoena: she did not correct her receptionist.
(c) That she did not pay a consultant any fees to carry out her duties on the occasion of her absence from Cork to attend the High Court in Dublin.
I am not satisfied that these admissions necessarily constitute conclusive evidence justifying all the charges made in the correspondence against the plaintiff. They are, in my view, capable of being accepted by a jury as such justification or capable of being accepted as failing to justify the charges made. I therefore conclude that there are no grounds upon which this Court could decide this appeal on the issue of justification.
Qualified privilege in respect of the letters to the I.M.A.
There does not appear to be any direct Irish authority on the question as to whether an occasion of qualified privilege can arise where there is not actually an interest or duty in the person to whom a matter is published, although the person making the publication honestly believes that there is. In Waring v. McCaldin (1873) I.R. 7 C.L. 282 FitzGerald B. at p. 288 in the course of a ruling on a plea of demurrer stated as follows:
“If, without express malice, I make a defamatory charge, which I bona fidebelieve to be true, against one whose conduct in the respect defamed has caused me injury, to one whose duty it is, or whose duty I reasonably believe it to be, to inquire into and redress such injury, the occasion is privileged, because I have an interest in the subject matter of my charge, and the person to whom I make the communication has, on hearing the communication, a duty to discharge in respect of it.”
A consideration of the report of the entire proceedings in that case clearly indicates that the statement which I have quoted from the judgment of FitzGerald B., in so far as it dealt with reasonable belief, was obiter to the issues arising for decision.
In Jenoure v. Delmège [1891] A.C. 73 which was an appeal to the Judicial Committee of the Privy Council from the Supreme Court of Jamaica, Lord Macnaghten at p. 77 stated as follows:
“The Chief Justice went on to tell the jury that the proper authority to whom such a complaint should have been submitted was the superintending medical officer; but he also told them that, if they thought that the appellant had addressed the letter to the inspector of constabulary by an honest unintentional mistake as to the proper authority to deal with the complaint, then the communication would not be deprived of any privilege to which it would have been entitled had it been addressed to the superintending medical officer. So far the summing-up seems to be open to no objection.”
The case in which this statement occurs was one in which the point on appeal before the Privy Council concerned an alleged misdirection by the Chief Justice of Jamaica to a jury on the question of privilege.
In Hebditch v. MacIlwaine [1894] 2 Q.B. 54 the Court of Appeal in England decided that it was not sufficient that the maker of a statement honestly and reasonably believes that the person to whom it is made has an interest or duty to receive it in order to create an occasion of qualified privilege but that the actual existence of such duty or interest must be proved. This decision has since been followed in England and is quoted with approval in successive editions of Gatley on Libel and Slander being referred to at para. 507 of the 7th edition. It was referred to by Black J. in a judgment which dissented on other issues in Kirkwood Hacken v. Tierney [1952] I.R. 185. The principle that in order to establish an occasion of qualified privilege it is necessary to prove the actual existence of a duty or interest in the person to whom the statement is communicated was clearly accepted by the former Supreme Court in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 as well as in Kirkwood Hackett v. Tierney .
There does not appear to have been raised in any case before this Court or before the former Supreme Court the question as to whether an occasion of qualified privilege could also be established by proof of an honest belief in the person publishing the statement formed with reasonable care as to the interest or duty of the person to whom he communicates. In the decision of the House of Lords in London Association for Protection of Trade v. Greenlands Limited [1916] 2 A.C. 15 it was decided that upon an enquiry being made to a person as to the financial circumstances and credit of a trader, that person is justified in giving such information and is deemed in law to do so on an occasion of qualified privilege provided that (1) he bona fide believes in the truth of the information which he gives, and (2) he bona fide believes that the person making the enquiry has an interest which justifies the enquiry. I am not aware of this decision having been considered by any Irish court. If it were possible and desirable to extend the principle laid down in London Association for Protection of Trade v. Greenlands Limited to circumstances other than the credit of traders and even, as is urged in this case, to circumstances where an enquiry is not made, it would quite clearly be fundamental to any principle so developed that a person volunteering such a statement would take the utmost care in ascertaining as to whether the person to whom he was communicating it had an interest or duty to receive it.
In the instant case the defendant, a solicitor, before writing to the I.M.A. took, on his own evidence, no step of any description to ascertain whether they were the appropriate body to which a complaint with regard to misconduct on the part of a doctor should be made. It is quite clear that either a reference by him to the Medical Practitioners’ Act, 1978, or an enquiry made without involving the mentioning of any name to the I.M.A. itself as to whether they were the appropriate body, would have yielded the immediate information that the appropriate body to whom such a communication should be made was the Medical Council. In these circumstances, I am satisfied that even if a defence of qualified privilege can be established in the manner submitted on this appeal by the defendant, that on the facts of this case it could not conceivably arise, and I prefer not, in those circumstances, to express any view as to whether it is part of the law, or, if it is, the circumstances which would give rise to it.
Having regard to the consequences of the publication of such information I take the view that a mere honest belief in the appropriateness of the recipient is not sufficient under any circumstances to create privilege and since the decision of the learned trial judge that the publication to the I.M.A. was privileged seems to have rested upon that principle, it was, in my view, in error.

With regard to the submission made on behalf of the defendant, that the receipt by the I.M.A. from the defendant’s client of the fees due to the plaintiff which it transferred to her was proof of an actual duty or interest in the I.M.A. to receive these letters, I am satisfied it must fail. The only evidence of the circumstances surrounding this payment was the production of a bank draft, apparently endorsed by the I.M.A. and cashed by the plaintiff. Such evidence falls very far short indeed of the onus of proof which was upon the defendant of proving a relevant duty or interest in the I.M.A. to receive the communication concerned.
I am, therefore, satisfied that the publication of these letters to the I.M.A. should have been left to the jury without any issue on the question of malice concerning it.
Rulings on malice
I am satisfied that, although there are some difficulties in accurately understanding from the transcript of the trial what precisely was said by the learned trial judge in his ruling, there are no grounds for the submission made on behalf of the plaintiff, to the effect that the learned trial judge’s ruling on malice should be interpreted as a consideration of each separate item of evidence alleged by the plaintiff to constitute evidence of malice and a ruling that the matter should not be left to the jury because in more instances the plaintiff had failed to establish a probability of malice than in the instances in which she succeeded. The first submission made with regard to the issue of malice on behalf of the plaintiff must therefore fail.
With regard to the more general submission, the position would appear to me to be as follows. It was agreed by counsel for both the plaintiff and defendant in this case that the appropriate test for malice was that laid down in the judgment of O’Byrne J. in the former Supreme Court in the case of Kirkwood Hackett v. Tierney [1952] I.R. 185. This, firstly, was that a trial judge should leave an issue of malice to the jury only if he was satisfied that the evidence given was more consistent with the existence of malice than with its absence, or to put the matter in another but identical way, that the existence of malice, as a matter of probability, was an inference which the jury would be entitled to draw from the evidence given. Secondly, that judgment appears to establish that, as was stated by O’Byrne J. at p. 204, having recited the principle laid down by Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. [1950] 1 All E.R. 449:
“Applying the foregoing principle, which I consider to be sound in law, it is clear that you cannot get evidence of malice from a number of items of evidence, no one of which is, in itself, evidence of malice.”
I do not construe this second proposition as prohibiting a trial judge from having regard to different pieces of evidence which appear to him to be interrelated so as to reach a conclusion as to whether the evidence supports the probability of malice in the manner which I have indicated above. Rather do I construe it as simply laying down a principle which may indeed be of more general application than merely to the question of a judge’s ruling concerning malice, that a number of separate items of evidence establishing a mere possibility of the existence of malice cannot by reason of their multiplicity alone convert that mere possibility into a probability.
In the instant case the plaintiff relied in the court below and relies in this appeal on a number of separate portions of the evidence as constituting evidence of the probability of malice. Some of those may well be capable of being considered interrelated. The main matters upon which reliance was placed may be summarised as follows.
1. Delay on the defendant’s part in making any complaint to anybody concerning the plaintiff’s conduct until such time as the plaintiff had herself made a complaint with regard to the defendant to the Law Society.
2. The length and scope of the defendant’s letter to the Law Society which it is alleged was so far outside necessary or relevant comment on the matters contained in the plaintiff’s letter to the Law Society as to constitute evidence of a motive of revenge or retaliation rather than a motive of a duty to make the complaint concerned.
3. The violence of some of the language used in the letter, particular complaint being made of the allegation that the plaintiff was a person who held scant regard for professional ethics and even less for the solemnity of the law; that she was obsessed with her fees and that she was guilty of duplicity and a lack of integrity in the contents of her letter written to the Law Society.
4. It was asserted that the reference in the letter to the Law Society setting out the history of the family law case giving rise to the request to the plaintiff to give evidence could be construed as a slur on the plaintiff’s professional competence in that it could be construed as indicating that the unfortunate history of the wife in the family law case was due to inappropriate advice or treatment.
5. The failure of the defendant upon request to comply with the demand made on behalf of the plaintiff prior to action for an apology, compensation and the payment of costs or even for an apology and the payment of costs.
6. The plaintiff also relied on the fact that copies of the correspondence sent to the Law Society, to the I.M.A. and to the Medical Council were sent by the defendant to the plaintiff as indicating some element of spite or hostility towards her from him.
With regard to these various allegations of malice I have come to the conclusion that the learned trial judge erred in law in holding that it would not have been open to a jury to reach a conclusion that the probability of the existence of malice in the communications made by the defendant was established by the length and scope of the letter written by him to the Law Society, having regard to the matters on which that Society asked for his comments and the violence of some of the language used in that letter. In reaching this view I am, of course, expressing no opinion as to whether I would accept from all the facts of this case that malice was proved, but rather expressing a view on the legal question which fell to be determined by the learned trial judge as to whether the probability of malice was an inference open to the jury on the evidence which was given.

It is quite clear that the failure or refusal of the defendant to apologise and pay costs, with or without compensation, could not be evidence of malice, having regard to the defence which he subsequently filed in the proceedings of justification. I do not construe the portion of the letter dealing with the history of the treatment by the plaintiff of the wife in the family law case as containing an implication that that treatment was incompetent or negligent, and I do not consider that this was an item of malice which should have been left to a jury. The sending by the defendant of copies of the letters to the plaintiff could not be evidence of malice. Quite clearly the fact that the defendant made no complaint concerning the conduct of the plaintiff until such time as she made a complaint to the Law Society is inter-related with the alleged violence of language contained in his letter to the Society and can be considered with it.
Having regard to the conclusions set out by me in this judgment I am satisfied that this appeal should be allowed and that a new trial of this action should be ordered in accordance with the principles which I have set out in this judgment.

Henchy J.
The plaintiff is a consultant psychiatrist practising in Cork. The defendant is a Cork solicitor. In 1982 the defendant, who was acting as solicitor for the husband in family law proceedings in the High Court, served a subpoena on the plaintiff requiring her to attend the hearing of the case in Dublin and to give evidence for the husband. She attended but was not called as a witness, as the case was settled. When she returned to Cork she sent the plaintiff a bill for £300 in respect of her fees. The defendant’s reply was to ask for a breakdown of that sum. There is no evidence that he took any step to provide for her fees. The plaintiff, feeling aggrieved, wrote to the Incorporated Law Society on the 3rd June, 1982, enquiring if there were any guidelines as to subpoenas served on professional people, complaining of the defendant’s conduct and asking for the Society’s help in recovering her fees.
The Law Society having sent him a copy of this letter, the defendant wrote a long letter to the Society on the 24th June, 1982, giving his version of events, attacking the plaintiff for her “scant regard for professional ethics and even less for the solemnity of the law”, accusing her of threatening to give him a “sick note”if he served a subpoena on her, and complaining that she was obsessed with the payment of her fees.
On the following day the defendant sent a copy of that letter to the Irish Medical Association (“the I.M.A.”) with a covering letter in which he made a formal complaint against the plaintiff, alleging unethical conduct in regard to the”sick note”, lack of integrity as evidenced by her letter to the Law Society, and professional impropriety in that she had demanded exorbitant fees. The secretary to the I.M.A. wrote in reply saying that the I.M.A. had no jurisdiction in the matter and that a complaint such as his was for the Medical Council. The defendant then wrote to the Medical Council repeating the complaints he had made in his letter to the I.M.A. and enclosing a copy of his letter to the Law Society.
The present proceedings have been brought claiming damages for libel against the defendant in respect of (1) the letter he wrote to the Law Society, (2) the letter he wrote to the I.M.A. enclosing a copy of his letter to the Law Society, and (3) the letter he wrote to the Medical Council enclosing a copy of his letter to the Law Society. At the end of the hearing in the High Court the judge withdrew the case from the jury and entered judgment for the defendant. The plaintiff now appeals.
The defendant pleaded justification, but the question of justification does not arise in this appeal. We are concerned only with the question whether the judge correctly ruled that all three occasions of publication were occasions of qualified privilege and that the plaintiff had failed to show that it would be open to the jury to hold that, on the balance of probabilities, the defendant was actuated by malice and had therefore lost the benefit of the qualified privilege.
On the hearing of the appeal it appeared that the parties were agreed that the occasions of the sending of the letter to the Law Society and the sending of the letters to the Medical Council were occasions of qualified privilege. It is common case that the defendant had a right or duty to send those communications and that the Law Society and the Medical Council had a reciprocal duty or interest in receiving them. The only question, therefore, arising in this appeal, in regard to those two communications, is whether there was evidence of malice which was fit to be considered by the jury.
The third communication, namely that sent to the I.M.A., is in a different position. The parties are not agreed that this was a privileged occasion. Counsel for the plaintiff relies on the long-established general rule that an occasion of qualified privilege cannot exist unless the person receiving the communication has in fact a legitimate duty or interest in connection with the subject-matter, and he says that no such duty or interest on the part of the I.M.A. existed here. Counsel for the defendant submitted in reply that the I.M.A. was not without an interest in the complaint made, and that even if it had no interest, the occasion was still one of qualified privilege because the defendant honestly and reasonably believed that the I.M.A. had such an interest.
I am satisfied that the I.M.A. had no legitimate interest in receiving this communication from the defendant. The purpose of the communication was to instigate a disciplinary inquiry by the I.M.A. into the serious matters complained of. But the I.M.A. had no jurisdiction to hold such an inquiry. Such limited powers as it had were exercisable only in respect of its members, and the plaintiff was not even a member. The secretary to the I.M.A. replied to the defendant’s complaint by saying, quite correctly, that it was a matter for the Medical Council. Had the defendant consulted the Medical Practitioners Act, 1978, or made the appropriate inquiries, he would have known that to be so. He imprudently and without due consideration made his complaint to a body which had no legitimate interest in the subject-matter of the complaint. His counsel was driven to falling back on the fact that the I.M.A. eventually sent the plaintiff a cheque in discharge of her fees for attending court, thus, it was suggested, pointing to its interest in the matter. I am satisfied, however, that this cheque was only a method of payment of the fees and that it cannot be treated as vesting in the I.M.A. an interest or duty which even the I.M.A. itself admitted it had not got.
In those circumstances this Court is being asked to hold that the communication sent by the defendant to the I.M.A. is protected by qualified privilege because, although the I.M.A. in fact had no duty or interest in the matter, the defendant honestly and reasonably believed that it had. However, such a version of the law would run counter to two Supreme Court decisions: Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185. While the point does not seem to have been specifically argued in those cases, it is clear from the observations made in the judgments that the Court in each of those decisions was firmly of the opinion that an occasion of qualified privilege cannot exist unless the person making the communication has a duty or interest to make it and the person to whom it is made has a corresponding duty or interest to receive it. It would require exceptional circumstances before this Court should overrule such a clearly held and repeatedly expressed opinion.
I have no difficulty in rejecting the submission, which has only slender judicial support, that the occasion is one of qualified privilege if the person making the communication honestly believes that the person receiving the communication has a duty or interest in receiving it. I cannot believe that the guarantee in Article 40, s. 1, sub-s. 3 of the Constitution that the State will protect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen, would be effectuated if a right to defame with impunity is recognized on such a purely subjective basis. An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Article 40, s. 6, sub-s. 1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one’s reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication.
I consider, therefore, that the only part of the defendant’s submission which warrants serious consideration is the contention that a defendant is entitled to the defence of qualified privilege if he honestly and reasonably believed that the person to whom he published the words complained of had a duty or interest as to the matters referred to in the communication.
Despite the obvious attractiveness of the suggested formulation of the law of qualified privilege, I am not prepared to support the overruling of Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185 to the extent required by the defendant’s submission. In the first place, I am not satisfied that the proposed formulation would be correct for the generality of cases of qualified privilege. Occasions of qualified privilege arise in a wide variety of relationships – legal, social and moral – and in an extensive range of circumstances, and the single formulation suggested might not be suitable for all of those occasions. For example, even the existing general rule, that it is necessary for qualified privilege that the recipient of the communication have a duty or interest in regard to the communication, is waived in certain cases where the communication is made by a person replying to an inquiry as to the credit of another: see London Association for Protection of Trade v. Greenlands Limited [1916] 2 A.C. 15, 42. It may be that many other exceptions or qualifications are called for. The general rule suggested may prove to be unsuitable or unjust in certain cases. I am not persuaded that it would necessarily he an improvement on the present formulation in many cases.
Secondly, I consider that a previous decision of this Court, be it the Court established by the Courts (Establishment and Constitution) Act, 1961, or the Court in its earlier form, should not be overruled unless the point at issue has been duly raised and adequately argued. The formulation now suggested was first advanced to this Court by counsel for the defendant when replying to the submissions of counsel for the plaintiff. The latter did not find it necessary to deal with this point, relying as he was on the law as stated in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185. The result is that we are being asked to overrule part of those decisions, on what has turned out to be an ex parte argument. I find that unsatisfactory, particularly having regard to the possible but unknown ramifications of the suggested change in the law.
Thirdly, I am of the opinion that the suggested radical change in the hitherto accepted law should more properly be effected by statute. The public policy which a new formulation of the law would represent should more properly be found by the Law Reform Commission or by those others who are in a position to take a broad perspective as distinct from what is discernible in the tunnelled vision imposed by the facts of a single case. That is particularly so in a case such as this, where the law as to qualified privilege must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen’s good name. The articulation of public policy on a matter such as this would seem to be primarily a matter for the legislature.
Finally and perhaps most crucially, the suggested restatement of the law should in my opinion not be made in this case because it is not necessary for the purpose of doing justice. If the suggested version of the law were to be applied, the test as to whether the defendant’s communication to the I.M.A. was made on a privileged occasion would be whether he honestly and reasonably believed that the I.M.A. had jurisdiction to deal with his complaint. I do not doubt that he acted honestly, but I am equally satisfied that he did not act reasonably in making that communication. A reasonable solicitor of eleven years standing (which was the span of his experience) would not have sent a letter of complaint to the I.M.A. alleging serious professional misconduct by a doctor, without taking at least some precautions to ensure that the I.M.A. was the appropriate body to deal with the complaint. Yet he seems not to have taken any step to verify his impression that the I.M.A. had competence in the matter. A belief so casually and carelessly founded could not be held to be reasonable. Consequently, even if the suggested test were to be applied, it would avail the defendant nothing. The occasion would still have to be held not to have been privileged. If the law as to qualified privilege as stated in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185 were to be overruled, it would be of no consequence for the purpose of this case. As was stated by this Court in Mogul of Ireland v. Tipperary (N.R.) C.C. [1976] I.R. 260 an overruling of a previous decision of this Court, whether it be the pre-1961 Act or the post-1961 Act Court, should take place only when it is necessary for the purpose of doing justice. That requirement is absent in this case. Even if the Court were to restate the law as requested, such restatement would be only obiter.
I would hold, as regards the communication to the I.M.A., that the trial judge incorrectly ruled that it was made on a privileged occasion. The case should have gone to the jury to determine whether the two letters in question (or any part of them) were defamatory, to decide to what extent (if any) the plea of justification had succeeded, and, if required by the findings on those matters, to assess damages.
As to the communications to the Law Society and the Medical Council, those were clearly made on occasions of qualified privilege. However, the trial judge held that the evidence was such that it would not be open to the jury to hold as a matter of probability that the defendant was actuated by malice. Being therefore of the opinion that the plea of qualified privilege prevailed, he withdrew the case from the jury. I think that was an incorrect ruling. It is well established that the defence of qualified privilege will be defeated if it is shown by the plaintiff as a matter of probability that the defendant, in communicating the words complained of, acted out of what is known in law as malice. Malice in that sense will be shown if the defendant acted from any indirect or improper motive, not merely personal spite or ill-will, which shows that the reason for which the occasion is recognized as privileged has been exceeded or violated.
When a libel or slander action is tried with a jury it is for the judge to decide whether the evidence is such as would reasonably entitle the jury to hold, as a matter of probability, that the publication was actuated by malice, in the legal sense, on the part of the defendant. Where the plaintiff, on whom the onus of proving malice lies, points to a number of examples of malice in regard to the publication, the judge must allow the case to go to the jury if it would be reasonable for the jury to hold as a matter of probability that any one of those instances represents malice. However, if no one of the instances pointed to could reasonably be held by the jury to amount to malice, the case should be withdrawn from the jury, because it would not be open to the jury to hold that a number of instances, no one of which could in itself be held to evidence malice, could in their aggregate amount to malice. The law to that effect was stated by Lord Porter in Turner v. Metro-Goldwyn-Meyer Pictures Ltd. [1950] 1 All E.R. 449, 455:
“. . . each piece of evidence must be regarded separately, and, even if there are a number of instances where a favourable attitude is shown, one case tending to establish malice would be sufficient evidence on which a jury could find for the plaintiff. Nevertheless, each particular instance of alleged malice must be carefully analysed, and, if the result is to leave the mind in doubt, then that piece of evidence is valueless as an instance of malice whether it stands alone or is combined with a number of similar instances.”
I respectfully adopt that statement of the law, which has been applied in a number of subsequent English cases and which was expressly approved by O’Byrne J. in Kirkwood Hackett v. Tierney [1952] I.R. 185. Since the judgment of O’Byrne J. was the effective judgment of the Court in that case, even if I disagreed with that version of the law I would not be free to refuse to follow it. Thus, if no one of the examples of malice relied on by the plaintiff in this case could reasonably have been held by the jury on the balance of probabilities to amount to malice, the judge would have been correct in withdrawing the case from the jury. On the other hand, if any one example could reasonably as a matter of probability be treated by the jury as showing malice, the case should have been allowed to go to the jury.
In my view the judge wrongly withdrew the case from the jury. There were a number of matters which a properly directed jury could justifiably have held to amount to malice. Without going into detail, I would point to the timing, the tone and the contents of the letters, the nature of the language used, the range and breadth of the complaints, and the fact that what began as a defence to a complaint made about the defendant to the Law Society was converted by him into an attempt to establish professional misconduct on the part of the plaintiff. I refrain from going into specific instances, for their weight depends in one degree or another on the actual evidence given at the trial, and since in my view there must be a new trial, in which the evidence may be appreciably different, any comments as to the import of the evidence already given may be misleading in the context of the new trial.
Since it is my opinion that there was a case to go to the jury as to each of the three communications, I would allow this appeal and order a new trial.

Griffin J.
I agree with the judgment of the Chief Justice.

Hederman J.
I agree with the judgment of Henchy J.

McCarthy J.
The trial judge ruled that each occasion upon which the defendant wrote the impugned letters was one of qualified privilege and that it was not open to the jury reasonably to conclude that the evidence was more consistent with express malice than otherwise. It is not seriously in issue that the occasion of the letter to the Incorporated Law Society of Ireland and that of the letter to the Medical Council was in each instance an occasion of qualified privilege. The challenge by
the plaintiff is to the ruling that since the defendant had an honest belief that the Irish Medical Association (“the I.M.A.”) had an interest in receiving the letter, the occasion of that publication was also one of qualified privilege, and, further, that there was no evidence upon which a jury could reasonably conclude upon the balance of probabilities that the defendant was actuated by an improper or ulterior motive amounting in law to express malice. In my judgment, both of the plaintiff’s contentions are correct.
1. The letter to the I.M.A.
It was for the defendant to prove, if it were not admitted, the fact or facts that would establish the occasion to be one of qualified privilege. There was no satisfactory evidence that at the time of the writing of the letter the plaintiff was a member of the I.M.A.: the only hard evidence of the role of the I.M.A. was in the production of the by-laws of that association and these do not assist. There was no evidence that the I.M.A. had either a duty or an interest in hearing complaints of the kind contained in the letter written by the defendant and the accompanying copy letter written to the Law Society. On an empirical test, it seems unlikely that the I.M.A. had an interest in receiving such a letter since it, with its enclosures, was returned by the I.M.A. to the defendant saying that it “was not our affair” and that the appropriate body for such a complaint was the Irish Medical Council. The learned trial judge, at the close of the plaintiff’s case, refused the defendant’s application for a ruling that the occasion of the letter to the I.M.A. was one of qualified privilege; the defendant served notice of cross appeal in which he challenged that ruling, contending that the I.M.A. was, on the evidence, the correct body to receive such a letter, in particular, in respect of the fee complaint, since subsequently the fee was paid by the husband/client through the I.M.A. The alternative argument, and the one upon which greater reliance appears to be place, was that of “honest belief reasonably held”.
In the legal mine field that is the law of defamation, the most sensitive trip wires are those of privilege. There is an abundance of judicial pronouncement on what may be the occasion of qualified privilege, with apparent unanimity that the limits are never set. The defence of qualified privilege is founded upon the needs of the common good whether in the home, the factory, the shop, the houses of finance, or voluntary associations with professional or other purposes. The common good presupposes a common factor, a reciprocal duty or interest in making and receiving the communications. For this reason, it is the judge at trial who rules, on proven or agreed facts, whether or not the occasion is one of qualified privilege. If the facts are in issue, he cannot so rule until the facts are found by the tribunal of fact, the jury. If there is any want of evidence to support the facts essential to the legal conclusion, then such a conclusion is not open. The conclusion itself is one of law based upon an objective test of such reciprocal duty or interest arising, if it does at all, from the instant relationship of the two parties to the communication. (See: Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 and Kirkwood Hackett v. Tierney [1952] I.R. 185). In my view, the learned trial judge
correctly ruled that it had not been shown that the I.M.A. had an interest in receiving the communication in question.
“Honest belief”. It is an attractive proposition that an individual who holds a belief, which is both honest and reasonable, that the party to whom he makes a complaint has an interest in receiving that complaint, in law does so upon an occasion of qualified privilege. The public interest, it is said, is at stake and is served in allowing people to act on such honest and reasonable belief. The argument seems to me to suffer from one fatal defect, it overlooks the situation of the party defamed. He has a constitutional right that the State shall protect as best it may from unjust attack and in the case of injustice done vindicate his good name (Article 40, s. 3, sub-s. 2 of the Constitution). Such a right co-exists with a guarantee of liberty for the exercise of the right of citizens to express freely their convictions and opinion (Article 40, s. 6, sub-section 1). The defence of qualified privilege is itself an impairment in the interests of the common good of the right to vindication of one’s good name. This does not mean that it should be sparingly allowed but, rather, that its existence should be clear, and clear to all parties. The victim of a letter of complaint, plainly defamatory if not necessarily actionable, should not have the determination of his course of action depend upon a circumstance, the honest and reasonable belief of the publisher, which he has no means of examining or testing unless and until he goes to court. The recipient of an enquiry as to the character of a prospective employee may answer the query in a manner which is defamatory but upon an occasion of qualified privilege without fear of being mulcted in damages. But the victim of the complaint in such case can readily learn the facts and, if a letter of enquiry was, itself, false in its base, may well have a remedy against its author. It is desirable that an individual acting in good faith and with reasonable care should be free from liability if he publishes defamatory material to another whom he believes to have an interest in hearing it. It is more than desirable, in my view, that the existence of such immunity should be seen and determined objectively without having to have an examination in court. In principle, I do not find support for what in this jurisdiction would be a departure from existing practice. In short, an occasion of qualified privilege is a legal conclusion to be drawn from established facts; a mistaken belief cannot be the foundation to establish a fact. It is, therefore, contrary to principle that such a defence could be supported by a belief which is mistaken, however honest and reasonable.
It is acknowleged that the perceived legal precedent in England and Scotland is directly contrary to any such enlargement of the law. See: Beach v. Freeson [1972] 1 Q.B. 14; Hebditch v. MacIlwaine (1894) 2 Q.B. 54; Watt v. Longsdon (1930) 1 K.B. 130; Adam v. Ward [1917] A.C. 309; Harrison v. Bush (1855) 5 E. and B. 344; Stuart v. Bell [1891] 2 Q.B. 341; Jenoure v. Delmège [1891] A.C. 73; James v. Baird (1916) S.C. 510 and sub nom. Baird v. Wallace-James (1916) S.C. (H.L.) 158. The point was not argued in Reilly v. Gill and Others (1946) 85 I.L.T.R. 165 or in Kirkwood Hackett v. Tierney [1952] I.R. 185. Counsel for the defendant has argued a consideration of Australian and United States academic authorities in support of the “honest belief” defence for what may well be though ought to be the law (Fleming: Law of Torts, at p. 454; 2nd Restatement of Torts 594, 595. Prosser: Law of Torts, p. 792). It would not, he argues, constitute a change in the essential law of qualified privilege. Honest belief may well sound in the diminution of damages. Under the Defamation Act, 1961, the damages to be awarded in respect of an unintentional defamatory publication may be diminished by proof of no negligence; a like approach might be appropriate to the circumstances such as found by the learned trial judge here, but that touches only on damages and would be met by appropriate direction to a jury.
For the reasons I have sought to indicate, in my view the occasion of the letter to the I.M.A. was not one of qualified privilege.
2. Malice
At the conclusion of the evidence the learned trial judge had to determine whether or not it was open to the jury to conclude that the evidence was more consistent with the existence of an improper or ulterior motive than otherwise, so as to constitute what is called express malice or malice in fact, but might be better termed an abuse of privilege. Such may arise from the violence of language used, the introduction of irrelevant material, the continued publication, and other matters relied upon in the course of trial. I do not consider it necessary or, indeed, desirable to go into any details, description or examination of the alleged instances of such abuse of privilege. In Kirkwood Hackett v. Tierney [1952] I.R. 185, in delivering the judgment of the majority, O’Byrne J. said at p. 204:
“Applying the foregoing principle, which I consider to be sound in law, it is clear that you cannot get evidence of malice from a number of items of evidence, no one of which is, in itself, evidence of malice.”
I would have thought that there may be circumstances in which a series of items of evidence, no one of which would be sufficient to displace the burden of proof which I have sought to outline, may have the cumulative effect of doing so. The question does not, however, arise in the instant case since the matters to which I have referred may each as a matter of evidence support the holding of an abuse of privilege. I reserve for another occasion the question as to whether or not the decision in Kirkwood Hackett requires review.
Much reliance was placed upon the contention that the allegations contained in the letters had, essentially, been established as matters of fact through the evidence of the plaintiff. Insofar as they are pure questions of fact, I am inclined to share that view; the trouble is that many of the statements made in the letters are not allegations of fact but are expressions of opinion. The issues raised in the pleadings in the action are of alleged privilege and of justification. What may have started out as justification may well become a “rolled-up plea”. It was sought to cloak the issue of privilege in the instant appeal in an innocent garment of justification. These are two wholly distinct and separate issues; indeed if justification were established, it would be unnecessary to consider the issue of privilege. Even if justification were established here, however, there remained the factor, but not the issue, of fair comment.
In holding, as I do, that the appeal must be allowed and the action sent for a new trial, I am far from expressing a view that the plaintiff is entitled to damages.

 

 

Tughan v Craig

High Court of Justice.

Chancery Division.

7 February 1918

[1918] 52 I.L.T.R 141
Dodd J.

Dodd, J.

The first question is: Is this action maintainable? An answer was given in the time of Hen. IV., as follows:—“It was resolved, that the thing that a judge does as a judge of record ought not to be drawn in question in this Court.” Apparently the judge in *141 that case was accused of having treated a trespass as if it were a felony: see 27 Ass. pl. 18, given in Salkeld, and cited by Holroyd, J., in Basten v. Carew, 3 B. & C. 656, as an authority. From the date it is almost certain that this decision was either by Chief Justice Gascoyne, or had his approval, and his name stands as that of an independent judge tenacious of constitutional right in the subject. That proposition was unchallenged apparently till the reign of James I. It came under review in Floyd v. Barker, 12 Rep. 23, and was approved of. “As a judge shall not be drawn in question in the cases aforesaid at the suit of the parties, no more shall he be charged in the said cases before any other judge at the suit of the king.” That was a decision in the Court of Star. Chamber. The same matter came up again for consideration in Hamond v. Howell, 2 Mod. 218. That was the famous case n which the Recorder of London fined Edward Bushell, and eleven other jurors, for finding against the evidence, and in default committed them to prison. Bushell applied to the King’s Bench, on habeas corpus, and the fine and imprisonment were held (Vaughan, C.J., presiding) to be illegal. Bushell brought an action against the Recorder. The matter came before Chief Justice Hale and his puisne judges on a pleading motion, but Chief Justice Hale expressed his mind so plainly that an action would not lie that Bushell discontinued his action: 1 Mod. 119. Another of the jurors then brought an action. This action came on a pleading motion before a Court presided over by Vaughan, C.J., himself: 1 Mod. 184. It was held by the full Court that “no action will lie against a judge for a wrongful commitment any more than for an erroneous judgment.” Lord Tenterden in Garnett v. Ferrand, 6 B. & C. 625, adopts the decision in its entirety. He says:—“No action will lie against a judge of a Court of Record for any matter done by him in the exercise of his judicial functions. This freedom from action and question as the suit of an individual is given by law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice.” In Ward v. Freeman, 2 I. C. L. Rep. 460, Mr. Justice Perrin, at p. 494, says he would be far from grounding his opinion on Hamond v. Howell, 2 Mod. 218, and Floyd v. Barker, 12 Rep. 23. It is to be borne in mind, however, that though Hamond v. Howell, 2 Mod. 218, was finally decided before a Court presided over by North, C.J., of which Mr. Justice Scroggs was a member, Chief Justice Hale and Chief Justice Vaughan had expressed opinions to the same effect as I have already noted. Floyd v. Barker, 12 Rep. 23, though a Star Chamber decision, was before a Court of which Lord Coke was a member. But whatever the attitude of mind as to the weight of these two authorities of Mr. Justice Perrin might be, he unqualifiedly accepted Lord Tenterden’s judgment. “The law in fact,” he says (p. 495), “is quite settled, and it is quite unnecessary to refer to the numerous authorities on the subject”; and all the other (nine) judges concurred with him, including the Chief Justice, the Chief Justice of the Common Pleas, and the Chief Baron. The second question is: What course ought a judge who is sued for what he did as a judge to adopt? An action was brought against a Lord Chief Justice of Ireland, and an action brought against a Lord Chancellor of England. The one case is Taafe v. Downes (1813). It is reported in 3 Moore’s Privy Council Cases, p. 36, in a footnote. The case excited much public interest. There would appear to have been no reporting authority in Ireland at the date (1813). But a book was published containing an account of the proceedings and judgments by Mr. Hatchell, a member of the Irish Bar. The learned reporter of the English Privy Council cases thought it of importance, and incorporated the greater portion of the judgments in the footnote. There was a dissenting judgment of Mr. Justice Fletcher, which is not reported by Moore, but is reported at full length by Mr. Hatchell. He held that the act of the Chief Justice in issuing a warrant was extra judicial. He said the Chief Justice was acting on the occasion as an ordinary justice, and needed for his defence the allegation that an ordinary justice needed. Mr. Justice Perrin quotes the judgment of Judge Fletcher from page 165 of Mr. Hatchell’s book. If the act were a judicial act, he would have concurred with the other judges. His judgment on this is the strongest exposition of the consequences that would follow:—“If an action against a judge for a judicial act were maintainable, it would be absurd, it would be preposterous, as well as unjust in the extreme. It would, besides, be infinite”; and he quotes Lord Coke to that effect. I quote from Chief Justice Lefroy as to the course Lord Downes adopted in that action from Ward v. Freeman, 2 Ir. C. L. Rep. 460, at p. 528:—“Lord Downes, with the best advice and a sense of what belonged to him in respect of his office, took the course that has been taken here—he virtually took the same course—he rested upon that protection that it was his duty on behalf of his office and the law to maintain his irresponsibility. *142 An action was brought against him for having issued a warrant in Chamber, and he pleaded that he did so as Chief Justice of the Queen’s Bench. To that there was a demurrer, and the demurrer was overruled, and a decision made that the judge when he did what he did was a judge and acting as a judge of a Court of Record; and he had protection that defended him from any other species of defence. He purposely omitted in the plea a statement of facts, that there was a previous information lodged on which he issued it (the warrant of commitment), and therefore he put on his plea wilfully and designedly that which made it for any other person a bad defence, but which for a judge of the land was a good defence, because what he did he did as a judge of the land.” That course was approved of by Lord Mansfield in the celebrated case of Money v. Leach, 1 W. Bl. 560, and in Mostyn v. Fabrigas, Cowp. 172. The only case in which the contrary course was adopted was the case of Dicas v. Lord Brougham (1833), 6 C. & P. 249. It was an action for false imprisonment against the Lord Chancellor, founded on orders in bankruptcy, which it was insisted were illegal. The defendant was represented by Sir John Campbell, then Solicitor-General. He undertook to prove that the orders were legal. The aged Earl of Eldon was examined for the plaintiff, one may infer with great reluctance, to prove that in his time no such orders would have been issued. The noble defendant must have been chagrined that, as the law then stood, he could not be examined to contradict Lord Eldon. Lord Lyndhurst was the judge. He was then Chief Baron. He was naturally indignant that an issue between such disputants should be a subject of arbitrament for a jury; and one can gather that he did not think the orders were legal. He said to the Solicitor-General:“Why did you allow the evidence to go on?” This was an order pronounced judicially, and this warrant is founded on a judicial order. How can an action of trespass lie after that?” He stopped the case, and directed a verdict for the defendant. The case is an object lesson, and affords the strongest justification for the course the learned Recorder has taken in this case. This case is also referred to by Erle, C.J., in Kemp v. Neville, 10 C. B. N. S. 523. He mentions the interesting fact that a bill of exceptions was tendered and sealed, but it was not pursued further. He approved of the decision. The third question is: Is the Recorder within the privilege? There are many decisions. I content myself with one. In Ward v. Freeman, 2 I. C. L. Rep. 460, an action was brought against an Assistant-Barrister. The ground of complaint was that the defendant having made a decree against the plaintiff, refused the recognizance of the plaintiff and his sureties, which was necessary in order that he might prosecute an appeal. It was a matter for debate whether the act was ministerial merely or judicial, and on that the Court was divided in opinion. It came to the Exchequer Chamber, when that Court was composed of all the judges of the three law Courts. Ten judges were present, and all were unanimous that the Assistant-Barrister was within the privilege. The history of the jurisdiction as Assistant-Barrister is given by Chief Justice Lefroy (at p. 522) at some length. He sums up as follows:—“Thus it appears to me, that all the ingredients which, according to the authorities, entitle a judge to this privilege of protection, concur in the office of Assistant-Barrister. He is a sworn Judge of Record; he has all the powers, authorities, and status of a Judge of the Superior Courts.” The learned Recorder has now, with added dignity, all the jurisdiction and status of the Assistant-Barrister. I may pause for a little on the controversy raised in that action, for though the matter therein debated cannot be raised now, the law in this respect is worthy of consideration. By what he did, or did not do, in that case, the learned defendant deprived the plaintiff of an appeal that was given to him by statute. And there was almost a complete parallel in the case of the Superior Court. By the statute of Westminster the second part of the confirmation of the Great Charter in the reign of Edward the First, a judge was bound to sign or seal a bill of exceptions. That was a necessary preliminary to an appeal by the party objecting. There was no remedy given by the statute for the breach of this duty. What was the remedy? The remedy might be by a writ from the Lord Chancellor, and if the judge returned non ita, there would be an action against him for a false return. Or it might be an action on the case for breach of the statutory duty imposed by the statute. Similarly an action would lie against an Assistant-Barrister for refusing recognizances. Mr. Justice Perrin dissented in the Exchequer Chamber from his own decision in the Queen’s Bench, Mr. Justice Torrens agreed with him; the Chief Baron Pigot and Chief Justice Monahan were of opinion that an action would lie against a judge of a Superior Court for not signing a bill of exceptions, and would lie against an Assistant-Barrister for refusing a recognizance. Neither judge could stop an appeal from his own decision. The Legislature has changed all that. Bills of exceptions have *143 become obsolete. I may be pardoned for drawing the attention of my brethren now practising at the Bar—none of whom, perhaps, ever tendered a bill of exceptions—few of whom, perhaps, ever saw such a parchment—to this great weapon. It was in the hands of an independent advocate, potent against the misdirection of an arbitrary or a stupid judge. It was recognized and appreciated by the judges themselves, as a charter of liberty to the subject, and though one cannot say the duty was never evaded, was maintained inviolate by the judges. All that remains of it now is what one often hears: “Your lordship having told the jury so and so, I call upon your lordship so and so.” Even this fragment of the blade is not without its potency. I may note in passing that by the statute an action would lie against a judge for refusing a writ of habeas corpus in vacation. The fourth question is: Does malice deprive a judge of the protection? The answer may be given to this also in the words of the books in Barnardiston v. Soame, 6 State Trials, 1063. It is laid down that “No action will lie against a judge for what he does judicially, though it should be laid falso malitiose et scienter. They who are intrusted to judge ought to be free from vexation, that they may determine without fear; the law requires courage in a judge, and therefore provides security for the support of that courage.” And if it be objected that this is an old authority, and from the State Trials, it has been adopted by all the eminent judges whose decisions I have already cited. The fifth question is: Does the protection extend to words as well as to acts of the judge? One might here, perhaps, use a little common sense. If an action for conspiracy will not lie, by reason whereof a man was imprisoned, will it lie for slanderous words used in inflicting the sentence? If an action will not lie for treating a trespass as if it were a felony, and committing a man to prison, will it lie for words imputing felony? If Hamond had no right of action for being committed to Newgate, would an action lie for words imputing to him that he had found a verdict against the evidence? As Judge Fletcher would say: “It would be absurd, it would be preposterous as well as unjust.” But this, too, is the subject of express decision. This is not the Court for an action of defamation. That is a common law action, and subject to well-established principles. The privilege of a judge as to words spoken in the course of a judicial trial is absolute. So is the privilege of the advocate and of a witness. Indeed, it is conceded such an action would not lie at common law. It never was questioned, I think, except once. Cockburn, C.J., did venture to say: “I am reluctant to decide, and will not do so until the question comes before me, that if a judge abuses his judicial office by using slanderous words maliciously and without reasonable and probable cause he is not to be liable to an action”: Thomas v. Churton, 2 B. & S. 475. It was an unfortunate dictum for a man called Scott. He was an accountant and scrivener, and the defendant, a County Court Judge, said: “You are a harpy preying on the vitals of the poor.” He brought an action against the judge on the dictum. It came before the Court of Exchequer: Scott v. Stansfield, L.R. 3 Ex. 220. Chief Baron Kelly rested his judgment on Floyd v. Barker, 12 Rep. 23, having seen, I gather, that Lord Coke was a member of the Court. He says at p. 223: “The question arises perhaps for the first time with reference to a County Court Judge, but a series of decisions from the time of Lord Coke down uniformly to the same effect establish the general proposition that no action will lie against a judge for any acts done or words spoken in his judicial capacity in a Court of Justice.” The sixth question is: Has this Court power to interfere? Granted, an action at law is not maintainable. The reason is that a judge is not to have his conduct reviewed by a jury. In a Court of Equity the inconveniences referred to would not arise. For that very reason a Court of Equity should intervene. Otherwise there would be a wrong without a remedy. We do not seek damages. We do not want an action. We do not want an injunction, all we ask is a declaration. We want freedom from adverse comment. At this stage the books fail me, at any rate on the positive side. There is no case for my guidance. But on the negative side the answer is complete. There is no such case: there is no precedent. And here therefore one must use a modicum of common sense. If judge can sit upon judge, where is it to end? This is what Mr. Justice Fletcher meant by “infinite.” Can I review the Lord Chancellor? The Chief Justice? Would it tend to decency and decorum, that even while I was restraining another judge I was preparing material for some other judge to restrain me. But in fact, the books are not so silent. The earliest cases make no reference to juries. That reference to them is only made in later cases to emphasize the inconvenience: Floyd v. Barker, 12 Rep. 23. “The reason why a judge … shall not be drawn in question before any other judge” … “is” … and the reason is there set forth. And in Lord Tenterden’s *144 leading judgment, now accepted as laying down the law, there is no reference to a jury. His words are: “It is a general rule of great antiquity that no action will lie against a judge of Record. It is better that an individual should occasionally suffer a wrong than that the general cause of justice should be impeded and fettered by constant and perpetual restraints and apprehensions of those who are to administer it.” The last question is: Assuming that the defendant was right in not submitting his conduct as a judge to the arbitrament of another judge, is this motion the proper method of raising that defence? The notice of motion is based upon two grounds (1) That the statement of claim discloses no cause of action, and (2) that the action is frivolous and vexatious. I could wish that the second ground had been omitted. The legal advisers of the learned Recorder might well have borne in mind the delicate duty cast upon a judge who is to decide such a question. We exercise our jurisdiction subject to public opinion. A judge who courts popularity is not a judge to be respected. A judge who disdains public opinion is not a good judge. It is permissible to a judge to endeavour to commend the justice that he administers to the people among whom he administers it. Enlightened public opinion in its turn exercises a stimulating and restraining influence on the judge. A solicitor complains that he has been injured in his profession by a judge and that he has no redress elsewhere, and seeks it here. And I am asked to rule that such an action is frivolous and vexatious. I ought not to have been asked to do so. There is this to be said for the learned counsel who drafted the notice of motion that the words “frivolous and vexatious” are used sometimes to indicate an action that is not maintainable. This is not accurate. It would go out that the judge of this Court had banged the door on a suitor, because the defendant was a judge, and I do not wish to leave my decision open to any such comment. I decline to decide that this action is frivolous or vexatious. There remains the second ground. The rule—Ord. XXV., r. 1—upon which the motion is grounded is one under a general heading: “Demurrer and proceedings in lieu of demurrer.” The first rule of the Order abolishes demurrer, “without special leave of the Court or a judge.” I take this application to be in lieu of a demurrer and I made a special order that the matter be disposed of on this application. I hold the action is not maintainable. By no possibility could it succeed. I therefore give judgment, as if there were a demurrer for want of equity. I dismiss the action. This takes away all ground of complaint put forward by the counsel for the plaintiff that they have not been allowed to go into the facts. The allegations must be taken as admitted, as if this was a demurrer. The costs, of course, must follow.

 

Keenan v Wallace

King’s Bench Division

8 November 1916

[1917] 51 I.L.T.R 19
Gibson, Kenny JJ.

 

Gibson, J.

This case has been fully argued, and counsel are agreed that no authority throws much light upon it. The jury, by direction of Gordon, J., found in favour of the defendant. All the findings were in favour of the plaintiff, except upon the one issue of privilege, and the notice of motion is to have the verdict changed to a verdict in favour of the plaintiff. No damages were awarded. The plaintiff got a protection order on February 9 on the strength of representations which the district inspector afterwards found, as he believed, to be untrue. He was honestly of that opinion. On February 23, when there was no business before the Court, the police officer made observations to the effect that the Court had been humbugged on the previous occasion. If his statements were true, no action would lie, but the jury found that they were not true. There might be materials to hold such statements privileged if communicated to the right ears. The magistrates in the present instance had no jurisdiction to interfere with the previous order. They could not exercise any jurisdiction. They might hear the case subsequently at quarter sessions. What is the ground on which an ex parte statement made to a Court that has no business before it can be justified? Is a police officer at liberty to make such statements as a volunteer? If the business had gone through without opposition on the first occasion, would he have been at liberty to go in? He had an interest and a duty in the matter, but his duty was to bring the facts before the proper tribunal. The magistrates had no interest to find out that they had been deceived. There is a fatal difficulty to the defendant’s case in the circumstances under which the communication was made. Why was the information given to the public and the reporters? The accidental presence of persons not interested might not necessarily destroy the privilege, but when a communication is intrinsically public, or when made in a public court, different considerations apply. In my opinion such a communication could even be made privately. It is a possible view that the police officer might invite the attendance of the magistrates at quarter sessions. The basis of the decision of Gordon, J., was the statement of the police officer, that it was the duty of the police to make the communication. Unless there is some provision in an Act of Parliament, nothing in the Police Code can justify the statement. It is certain that an officer by stating that it is his duty could turn the question of law into one of fact. After the case is over, and before a Court which has no jurisdiction to make any order, can a police officer inform the Court in presence of the public that it has been deceived when proceedings are pending at quarter sessions? In my opinion there is no such privilege. If Mr. Wilson’s contention is correct, any police officer could get up in Court the day after a trial and say that all the evidence given the previous day on which the verdict was based was perjured. This case goes beyond any to be found in the books, and we must accede the plaintiff’s application, and give him judgment for one farthing, to cover damages and costs.

Kenny, J.

I concur, with regret. It is more than probable that the magistrates were tricked. The question is whether there was a mutual duty and interest between the magistrates and the police officer. I cannot find that there was. It was before a different Bench, and there were reporters present. There was no jurisdiction to deal with the question. The matter was to come on at quarter sessions. It might be said that the statement had the effect of prejudicing the mind of the Bench when the plaintiff might have shown that it was not in accordance with the facts. There was no duty and no interest, and I agree in the conclusions arrived at by Gibson, J.

Williamson, K.C., applied for the costs of the motion. The plaintiff was compelled to come to the Court by the defendant getting a wrong direction.

Wilson, K.C.—The plaintiff is not entitled to any costs as the jury’s award of no damages shows that the action is one that should never have been brought.

Gibson, J.

The point is a novel one. The Court has full jurisdiction to exercise its discretion in awarding costs. Mr. Wilson argues that the verdict of the jury shows that the plaintiff had no case. Mr. Williamson’s argument is that he should be paid the outlay necessary to protect him from a wrong judgment. Costs cannot be withheld from a person who is protecting himself against a judgment which ought not to have been given against him. The plaintiff will get the costs of the motion.

Kenny, J., concurred.

Reilly v Gill and Others

Supreme Court

18 April 1946

[1951] 85 I.L.T.R 165
Sullivan C.J., Murnaghan, Geoghegan, O’Byrne, Black L.JJ.

 

Sullivan, C.J., having retired from the Supreme Court, did not deliver judgment

Murnaghan, J., in the course of his judgment, said that the appeal had been brought by the defendants against a verdict and judgment for £1,000 damages in an action for libel. The action was tried before the *165 President of the High Court and a jury. The libel complained of was a letter dated 23rd March, 1943, sent on behalf of the defendants to F. Harold Clarke, asking that the name of the plaintiff should be added to the defaulters’ list. Mr. Clarke was secretary of the Irish Turf Club and in consequence of that letter the plaintiff had been warned off all race meetings under the control of the Turf Club.

At the trial the learned President ruled that the letter complained of was written on a privileged occasion, but he also submitted to the jury the question: “In writing the said letter were the defendants actuated by malice against the plaintiff?” That question the jury answered in the affirmative. The appeal brought by the defendants was on the ground that that question should not have been submitted to the jury and that there was no evidence to justify the jury in their finding of malice; alternatively, a new trial was sought on the ground that the damages awarded by the jury were excessive. The plaintiff had served a cross-notice of appeal in which he sought to establish that the learned President was incorrect in ruling that the libel was published on a privileged occasion.

His Lordship said that it was quite evident to him that the Conyngham Club Committee did not consider themselves as a legal tribunal nor as lay arbitrators, but, nevertheless, in determining legal rights it was not what the Committee thought that should be considered. The ruling made by the Committee was the laconic word “Divide,” but this was rightly interpreted as meaning that the plaintiff was to pay Mr. Power the sum of £45. The decision as made might not have been satisfactory to either party but it was competent to the Committee to make the award which it did make.

The letter sent to the Stewards of the Turf Club naming the plaintiff as a defaulter was found by the jury to be defamatory and also to have certain innuendoes which were based upon an allegation that the plaintiff did in fact make a bet which he had refused to pay The defendants had not attempted at the trial to prove that the plaintiff did in fact make a bet which he had refused to pay. The question then arose whether the learned President was right in holding that the publication was made on a privileged occasion.

It should be accepted that the plaintiff would not have gone before the Conyngham Club Committee except for their intimation that they would proceed in his absence. But it was, on his own evidence, and on the letters in the case, an established fact, that he had consented to the Committee dealing with the matter. Having regard to the position of the Turf Club as exemplified in the Rules of Racing, and to the position of the Conyngham Club Committee as exemplified in its Rules, and the Rules of Betting, if the plaintiff were, in the circumstances, bound by these Rules it was very difficult to say that the occasion of the publication was not a privileged one. The plaintiff’s case was that he did not know of the Rules and therefore could not be bound by reason of his having consented to go before the Committee; he said that he knew very little about the Committee and could not be taken to have known what rights it claimed to have.

One was familiar in the Courts with a type of case, viz., a special contract modifying the common law or statutory obligations of a common carrier, or carrier of persons. To establish such a special contract it was necessary that a party should have brought to his notice either directly or by reference to some document the terms of the special contract. But there were other classes of cases, some dealing with more important matters in which a person might be bound by Rules and Regulations of which knowledge need not necessarily have been brought home to him. In the municipal laws of this country a person’s relation to his church was based upon an implied contractural obligation, and this obligation might be implied without bringing to the notice of the party the several Rules of his Church.

If, before the plaintiff consented to a decision by the Conyngham Club Committee he had been aware of or been furnished with their Rules and with the Rules of Racing, he would, in his Lordship’s opinion, have consented to these Rules being put in force against him. He was equally bound by these Rules if he omitted to inquire as to the powers of the Committee to which he was going to assent. The matter was not trivial or unimportant—the plaintiff believed that his honour was involved. The Rules of Betting appeared on the face of them to be available to anyone at the price of 1/6. The Irish Racing Calendar, which contained the Rules of Racing, appeared to be a book much in use—for racing men, something like the Irish Law Directory for lawyers. In his opinion the plaintiff, by stating in writing that he would appear before the Committee, impliedly assented to the application of the Rules in the case so far as it affected him. In cases before the Committee the parties were entitled to assume that the Committee was not an arbitrary tribunal, but that the *166 dispute would be ruled by the Rules of Racing and the Rules of Betting.

It was not necessary to consider what the position would have been if the plaintiff had refused to appear before the Committee and the Committee had proceeded in his absence It was sufficient in the present case to deal with the actual facts before the Court.

The authorities cited in argument stated general principles but were not of much help on the special facts. The President had cited to him the case of Chapman v. Ellesmere & Ors. [1932] 2 K. B. 431, which gave privilege to a communication in the Racing Calendar by reason of the terms of the plaintiff’s (a jockey’s) licence.

Betting on horses did in fact constitute a large part of the activities centred around racing and while betting itself was not illegal the law did not, in general, lend its aid towards the enforcement of betting debts. Warning off was spoken of in a loose way as a mode of enforcing such debts and it might be so in an indirect way but its real effect seemed to be directed to prevent persons who were adjudged to be defaulters from making fresh bets. When parties submitted to such an adjudication it seemed clear that the tribunal which made the adjudication and the Turf Club had each respectively a social duty or a social interest in the result of any such adjudication.

It had been submitted on behalf of the plaintiff that the onus was on the defendants to establish that the occasion was a privileged one. That was undoubtedly so but the defendants could rely upon admissions and statements of fact made by the plaintiff, as well as by direct evidence given on behalf of the defendants. The learned President was correct in ruling that the occasion was a privileged one.

If the occasion were ruled to be a privileged occasion the defence of privileged occasion could nevertheless be lost if the defendants were guilty of malice. By malice was meant not the mere publication of defamatory matter, but an actual state of mind which motivated the publication through spite or some indirect motive. It was established law that such actual state of mind should be proved by the plaintiff. Such proof could arise from the conduct of the defendant, the circumstances of the publication or, in some cases, from the actual terms of the defamatory matter.

There was no suggestion by the plaintiff that the defendants or any of them had any ill will against him, he could not suggest any inference of ill will merely because they decided against him. Great stress was sought to be laid on the fact that the plaintiff’s name was sent forward as a defaulter in spite of the warning given in his solicitor’s letter. This point was submitted to the jury by the learned President as capable of being evidence of malice. In his Lordship’s opinion the learned President was wrong in putting the matter in that way. Having ruled that the defendants were entitled to forward the notice that the plaintiff was a defaulter if they acted bona fide, the sending of a notice in spite of a warning was no evidence of malice. If the defendants were not entitled to send the notice acting bona fide, that warning might have been relied upon to increase the amount of damages, but if they were entitled to send this notice, acting bona fide, the warning alone did not afford any evidence of malice.

Stress was also laid upon the principle stated in many cases that an honest belief in the truth of the statement made was essential to establish that an occasion was privileged. When the Committee made the decision to divide the amount claimed, prima facie they formed a view that the plaintiff had made the bet which Mr. Power said he had made. The plaintiff had given no evidence to show that the defendants believed that he did not make any such bet. This was a mere rash and unwarranted assertion and could not be buttressed up by claiming that the defendants should have given evidence that they had an honest belief in the statement which they made.

In his Lordship’s opinion there was no evidence of any kind which would justify a finding that the benefit of the privileged occasion was lost by malice on the part of the defendants and judgment should, in his opinion, be entered for the defendants.

Geoghegan, J., stated that the only matter which, in his view, required much thought was the question of privilege. Before stating the conclusion he had reached on privilege his Lordship epitomised a few matters of fact and law which guided him on the way

1. The defendants were sued personally and not in a representative capacity.
2. In his opinion the Rules of the Conyngham Club or even the existence of that Club at the material time were not proved.
3. None of the defendants gave evidence.
4. The plaintiff in his pleadings put every fact in issue and adhered to that attitude.
5. The canon by which privileged occasions were to be ascertained was stated by *167 Lord Campbell in Harrison v. Bush 5 El. & Bl 348, as follows: “A communication made bona fide upon any subject-matter in which the party communicating has an interest or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty. And the word ‘duty’ cannot be confined to legal duties which may be enforced by indictment, action or mandamus but must include moral and social duties of imperfect obligation.”
6. The “common interest” should be one which the law recognised and appreciated.
7. It was for the defendant to establish that the occasion was so privileged.
8. The question whether the occasion was privileged, if the facts were not in dispute, was a question of law for the judge. If there were questions of fact upon which this depended they should be left to the jury, but when the jury had found the facts it was for a judge to say whether they constituted a privileged occasion.
9. The absence of malice did not make the occasion privileged. The question whether the defendant acted under a sense of duty, though important on the question of malice was not relevant on the question whether the occasion was or was not privileged.
10. Generally speaking in the great majority of cases a judge in deciding whether an occasion was privileged might presume that the defendant honestly believed in the truth of the statement he made. It was usually easy to deal with the question whether the communication stated a matter calling for inquiry or consideration by the proper authority, but the position became difficult when statements were made as matters of the truth of which the writer had satisfied himself and of which the statement was, so to speak, the final determination.
The defendants advanced their defence of privilege on several alternative grounds. In the forefront they relied on the combined effect of the Rules of Racing and (what had been called). “The Conyngham Club Rules of Betting”. It had been sufficiently established that the present plaintiff was not bound by the Rules of Racing. There had not been proof of the Rules of the Conyngham Club (if that Club existed). A document purporting to be an extract from the Rules was sent by post to the plaintiff in the course of a controversial correspondence, it was put in as a document so transmitted but no attempt was made to prove it, the plaintiff’s counsel rightly objected to its being treated as proved. If they were relied on, the Rules and not an extract from them should have been tendered and proved in the ordinary way. Apart from technicalities, it would have been a matter of substance to see the constitution, purposes and general rules of the Club. There was nothing in the evidence that showed anything in the nature of a contractual link between the plaintiff and the defendants.

Alternatively, it was argued that, even if the defendants had merely assumed to act as a committee in the terms of the “Rules of Betting,” the plaintiff had consented to or acquiesced in their claim to jurisdiction. Mr. Power had submitted to or invoked the aid of the Conyngham Club. The letter of 3rd October, 1942, made it plain that the defendants did not consider the conduct of the plaintiff. The tenor of every letter they wrote was in keeping with that attitude. The acts and letters of the plaintiff were consistent with the attitude maintained by him which was that he had for some years engaged in betting on a substantial scale, that he had staked £90 on “Happy Larry,” that he was so clear in his own mind about this as to make him confident he could demonstrate to the defendants that Mr. Richard Power’s clerk was in error. To many it would appear that the plaintiff as a prominent backer, was prudent in trying to keep his good name with the defendants as distinct from submitting what he regarded as the serious question of his personal honour to the final and conclusive arbitrament of the defendants. The plaintiff was repeatedly urged by the defendants to compromise but all through he declined that course and the undesirable implications he thought it had. His attitude, however, variably expressed, was that he had staked £90 once only and not twice, as Mr. Power’s clerk asserted. Viewing all that occurred his Lordship was of opinion that the plaintiff never voluntarily submitted to an assumed jurisdiction of the defendants and further, that the defendants did not pretend to act on the footing that they needed the agreement or consent of the plaintiff. Incidentally, all the bookmaker asked them to do was to say whether or not the bet of £90 was made twice; they were merely meddlesome in dictating a compromise. The defendants further contended that they acted pursuant to an interest or duty, moral or social. It was not necessary to consider whether, according to appropriate standards, the defendants could have had a moral or social duty or interest to enforce a wager made with a bookmaker’s clerk at that race meeting. The Courts had refused to entertain actions for bets even where the defendants had informed the Court they did not rely on the Gaming Act. That was some *168 indication of the judicial view of the social aspect. The legal systems of many modern states refused to enforce bets. The Roman Civil Law appeared to have been strongly antipathetic to bets. It could be assumed, however, that the existence of a social duty or interest was possible. One thing was certain: neither Mr. Power nor the plaintiff ever suggested that £45 had been staked. If £90 had not been staked twice the plaintiff, according to every contention, was in the right. The correspondence revealed that from an early stage the defendants were disinclined to come to a conclusion on Mr. Power’s assertion. They urged the plaintiff and Mr. Power, themselves to settle or compromise. These gentlemen met more than once but as the plaintiff took his stand on the accuracy of his statement no progress was made. The defendants eventually made a minute consisting of the single word “Divide.” This was the only foundation for the letter dated 23rd March, 1943. The defendants’ counsel spoke of this minute as a “Decision”. His Lordship assumed that it expressed the final view of the defendants as to the course they would like the parties to take, but it could not be construed as implying or importing that the plaintiff bet £90 twice or that he had defaulted for any bet. On that view the minute was repugnant to the existence in the minds of the defendants of an innocent belief that the plaintiff was a defaulter for bets. The minute left no room for the introduction of a presumption of honest belief; the legal position that would arise if the minute had been supplemented by other evidence had not to be considered. That aspect of the matter was clearly and forcefully brought to the attention of the defendants by the letter of 27th February, 1943, from the plaintiff’s solicitor.

The Rules of Racing did not contemplate the Stewards inquiring into or considering the truth or falsehood of the statement contained in the letter of the 23rd March, 1943, but that they should treat it as a communication the truth of which was finally established and leading automatically to the plaintiff being posted or listed as a defaulter. The extent of the privilege surrounding a person who made an untrue statement to an investigating or inquiring authority charged with checking the accuracy of the accusation, did not arise here.

Making every allowance for the latitude of expression and the unreasonableness of belief that the law allowed to a defendant claiming privilege, his Lordship was still of opinion that the learned trial judge erred in treating the communication as privileged and that, consequently, the plaintiff’s appeal should be allowed.

On that view only the question of damage remained. It should be remembered that there was no appeal against the findings of the grave innuendoes. The authorities established that in a libel action the amount of the damages was peculiarly for the jury. The findings of the innuendoes should be accepted and indeed had not been appealed against. Having found the libel was so injurious to the plaintiff’s reputation and credit it seemed a case for substantial damages even if the occasion had not been privileged. The learned trial judge erred as to privilege and as to what constituted malice which would displace the supposed privilege; at the same time his charge made it clear that the plaintiff in his evidence had stated that the defendants were above reproach and had made no suggestion against them apart from the publication of the libel. The jury derived nothing from the evidence or the charge to lead them to think there was express malice in the sense of spite or ill will. His Lordship had inclined to the view that the amount of the damages should stand and his opinion would probably have been to that effect were it not that two of his colleagues were of opinion that the question left as to malice might have affected the jury’s estimate. He accepted that view in preference to his own leaning mainly because adherence to the other view would have led to a division of the court which would have necessitated the argument of the appeal a second time.

Consequently, his Lordship stated, he would allow the plaintiff’s appeal but would grant a new trial as to the amount of the damages.

O’Byrne, J., in the course of his judgment said that the libel of which the plaintiff complained was contained in a letter dated the 23rd March, 1943, written on behalf of the defendants to Mr. Harold Clarke, Secretary of the Irish Turf Club and Registrar of the Irish National Hunt Steeplechase Committee. That letter was in the following terms:—

“Please add the name of Dermot E. Reilly, 5 St. Mary’s Villas, Drogheda, to the Defaulters list and oblige.”

The events which led up to the writing of that letter could be shortly stated. On the second day of the Tramore Races in August, 1942, the plaintiff had a bet on a horse called “Happy Larry” with Mr. Richard Power, a well-known bookmaker. A dispute subsequently arose as to the amount of the bet. The horse, which was backed at 3 to 1 on, *169 lost and Mr. Power alleged that the amount of the plaintiff’s bet was £180, whereas the plaintiff alleged that the amount was £90 and the plaintiff paid the said sum of £90 to Mr. Power. That left a sum of £90 in dispute. It appeared from the evidence that a Mr. Sutherland had a bet on the same horse with Mr. Power immediately prior to the plaintiff. Mr. Sutherland’s bet was £90 to £30 on TWICE. The plaintiff alleged that in making his bet he said he would have the same ONCE. It could thus be seen that the dispute was a simple one and really turned on a pure question of fact; namely, whether the plaintiff in making his bet, added the word “ONCE”. The plaintiff and Mr. Power having failed to agree on the matter the latter reported the matter to the Conyngham Club in a letter, dated the 23rd September, 1942, in which he stated “The dispute is a matter of £90 which arises out of a bet made at Tramore on “Happy Larry”, amount £180 (one hundred and eighty pounds) £60 (sixty pounds) on.” Drawing attention to the form of that letter his Lordship said that the Conyngham Club were not asked to determine what sum the plaintiff owed Mr. Power: they were asked to determine a dispute with reference to a matter of £90.

The plaintiff was notified that this complaint had been made and would be investigated by a committee of the Conyngham Club on Saturday the 10th October, 1942, and that, in the event of his failing to attend, the committee might proceed to adjudicate on the matter in his absence. Plaintiff wrote to the Committee stating that he would attend the meeting. At this meeting the matter was postponed, apparently with the object of enabling the parties to settle the matter by agreement.

The parties having failed to agree, the matter came on again at a meeting of the Committee on the 21st November, 1942. At this meeting the four defendants sat and purported to act as a committee of the Conyngham Club. The Committee investigated the matter and heard oral evidence and their decision, as recorded in their minutes, was contained in one word “Divide.” That was interpreted by the defendants as meaning that the plaintiff was bound to pay the sum of £45 and it was for his default in payment of the said sum of £45 that defendants wrote the letter, to which his Lordship had referred.

The defendants, in their defence, referred to the dispute which had arisen between the plaintiff and Mr. Power and pleaded that the words were written and published by the defendants without malice and in the belief that they were true and on a privileged occasion and they submitted that the communication was, accordingly, privileged. In the particulars, given by the defendants in substantiation of this plea, the defendants said that “Pursuant to the adjudication on the said dispute, the defendants in accordance with said Rules (i.e. the Rules of the Conyngham Club) in the exercise of their discretion reported the said plaintiff as a defaulter to the Turf Club, being a communication made bona fide upon a subject-matter in which the defendants had an interest or in reference to which they had a duty in common with the stewards of the Turf Club and the Committee of the Irish National Hunt Steeplechase and were (sic) made bona fide without malice and in the belief that it was true.” They also pleaded that they, as committee of the said Club, decided that the said sum of £90 was due to Mr. Power; but that, as a bona fide mistake had been made by the plaintiff, they decided to enforce payment of the sum of £45; they reported him to Mr. Clarke, as agent for and on behalf of the stewards of the Turf Club.

The action was tried by the President of the High Court with a jury. The President ruled that the occasion was privileged and submitted a question to the jury as to whether the defendants, in writing the said letter, were actuated by malice. The jury answered that question in the affirmative and assessed damages at the sum of £1,000 and judgment was entered for the plaintiff for that amount and costs. The defendants in their notice of appeal asked that the verdict and judgment be set aside, and that judgment be entered for the defendants, or alternatively, that a new trial be directed on the ground, amongst others, that there was no evidence, or alternatively, no sufficient evidence of malice. In a cross-notice, the plaintiff submitted that the learned President misdirected himself in law in holding that the occasion was privileged and he asked that the ruling should be varied. The first question for determination was whether the learned trial judge was correct in his ruling that the occasion was privileged. The general principles governing that question had been well settled and gave rise to no substantial controversy at the Bar. It would accordingly, be sufficeint to state those principles in a general way without reviewing the various authorities on which they were founded. The real trouble arose on the application of those general principles to particular facts.

It was settled law that an occasion was privileged when the person who made the communication had an interest or a duty to *170 make it to the person to whom he did in fact make it and the person to whom he made it had a corresponding interest or duty to receive it. The duty referred to need not be a legal duty: it might be a moral or social duty and of perfect or imperfect obligation. The doctrine of privilege was based partly upon matters of presumption and partly upon considerations of the convenience and welfare of society as a whole. Where a communication was made by some person in the discharge of some social or moral duty or on the ground of a common interest between the party making and the party receiving it, it was inexpedient that the person making the communication should be answerable in damages, where he acted in good faith and honestly believed in the truth of the communication. Want of good faith on the part of the person making the communication destroyed the privilege and, on that question, the belief or state of mind of such person was of paramount importance. The question, however, as to whether the occasion was privileged depended on the admitted or proved facts in each particular case and did not depend upon the state of mind of the person making the communication.

The question then arose as to whether the defendants, as a committee of the Conyngham Club, had a social or moral duty to make the communication to the Stewards of the Turf Club or whether there existed between these two bodies such a common interest, the making and receiving of the communication, as to give rise to privilege. In considering that question regard should be had to the communication which was, in fact, made. It was not sufficient that there was a duty to make a communication: it should be shown that there was a duty to make the communication which was made. The communication requested that the name of the plaintiff should be added to the Defaulter’s list. That appeared upon its face and upon the evidence of Mr. Harold Clarke, to mean that the plaintiff had made and lost a bet and would not pay it.

None of the defendants went into the witness box and there was no satisfactory evidence as to their constitution or functions. They relied upon inter alia the rules contained in a Print entitled Conyngham Club Committee—Rules of Betting. That print came into evidence merely as having been forwarded by the defendants to the plaintiff in the course of correspondence prior to the institution of the present proceedings. They were not formally proved as being the Rules of the Conyngham Club Committee, but were accepted for the purposes of the case. The only Rule therein contained on which the defendants relied was Rule 17 which provided that “The Committee will not necessarily enforce the settlement of compromised accounts. Before giving a decision they may require the books of the debtor, and a statement of his accounts, to be submitted to them and they may order the amount to be settled if they think a reasonable offer is made and on such terms as they may decide.” That Rule, as his Lordship understood the defendants’ case was relied upon as justifying the decision of the defendants to enforce payment of £45 only. In his opinion the Rule in question was confined to compromised accounts and had no application to the facts of the case and might be disregarded.

The Rules of Racing in Ireland were, however, proved by Mr. Harold Clarke and regard should be had to the functions of the defendants under those Rules. Three Rules, in particular, were relied upon:—
Rule 18: The stewards of the Turf Club take no cognisance of any disputes or claims with respect to bets; but they will give effect to an official report of default made to them by a Committee of the Conyngham Club, Dublin, or at Tattersalls.
Rule 179 If any person be reported by a Committee of the Conyngham Club as being a defaulter in bets, he shall be warned off as in the last rule mentioned so long as his default continues.
Rule 176 (Of the I.N.H.S. Rules): If any person be reported by a Committee of the Conyngham Club, Dublin, or at Tattersalls, as being a defaulter in bets, he shall be warned off as in the last rule mentioned, as long as his default continues.
The plaintiff stated in evidence that he was not aware of the precise powers or functions of the Conyngham Club. When asked on his direct examination whether he had any knowledge of the Conyngham Club, he answered: “Nothing more than its name. It conveyed a name to me but nothing more. I knew it was a name connected with racing in some way, with regard to settlements and disputes or warnings-off. Beyond that nothing.” Later on, in the course of cross-examination, he tried to recede somewhat from the position taken up in the foregoing answer. The first letter which he received from the defendants informed him of the complaint and that it would be investigated. The plaintiff was further informed that in the event of his failing to attend the meeting, *171 the Committee might proceed to adjudicate on the matter in his absence. That seemed to have been a clear intimation to the plaintiff that the committee claimed to have jurisdiction to deal with and adjudicate upon the subject-matter of the complaint, and, if the plaintiff had any doubt as to the extent of the powers and functions claimed by the Committee, one would expect him then and there to have asked for particulars as to the jurisdiction claimed by the Committee. He did not do so, but, on the contrary, stated that it was his intention to attend the meeting of the Committee and that he hoped to satisfy them that Mr. Power’s claim was incorrect. In pursuance of this intimation he attended at both meetings of the Committee and gave evidence with a view to establishing his contention that Mr. Power’s claim was unfounded. In those circumstances his Lordship was of opinion that knowledge of the powers and functions of the Committee under the Rules of Racing should be attributed to him and he should be deemed to have assented to the exercise by the defendants of such functions and to have submitted to them the dispute which had arisen between him and Mr. Power.

What were the functions of the Committee? The Rules of Racing contemplated that a defaulter in bets might be warned off, but the Stewards of the Turf Club refused to deal with disputes regarding bets and such disputes, so far as Ireland was concerned, were referred to the Committee of the Conyngham Club. When a person was reported by such committee, as being a defaulter in bets, he was warned off by the Stewards of the Turf Club and by the Committee of the Irish National Hunt Steeplechase.

It had to be considered when and in what circumstances the Committee was entitled to report a person as being a defaulter in bets. It seemed quite clear that they could do so if and when, they had determined that he was such defaulter. That question in the present case depended upon whether or not the plaintiff had made the disputed bet of £90 and that, in turn, depended upon the simple question of fact as to whether, in making his bet the plaintiff used the word “once” so as to indicate that his bet was £90 to £30 on and not £180 to £60 on. If the Committee determined this question in favour of Mr. Power, they would be entitled to report the plaintiff as a defaulter and, in doing so, they would be acting in pursuance of such a duty that the occasion would be privileged.

Did that occasion arise? The defendants said, in their pleadings, that they did determine the dispute in favour of Mr. Power and against the plaintiff; but they gave no evidence as to that—the trial judge was bound to determine the question of privilege upon the admitted or established facts and for that purpose he was bound to disregard improved allegations of fact appearing in the pleadings. What evidence remained? Only the record of the decision of the Committee made at the time and entered in their minute book. That record consisted of the one word “Divide”, which was construed by the defendants themselves as meaning that the plaintiff was bound to pay £45 and it was for his refusal to pay that sum of £45 that the plaintiff was reported as a defaulter.

On no view of the facts could the plaintiff be regarded as a defaulter in respect of the sum of £45. His liability was £90 or nothing. The only power, on which the defendants relied, enabling them to enforce, by report to the stewards, payment of portion of the amount in default was that contained in Rule 17 and that Rule, as already stated, had no application in the present case. The function of the Committee under the Rules of Racing was confined to reporting the plaintiff as a defaulter.

A dispute having arisen between Mr. Power and the plaintiff, the matter of that dispute was referred to the defendants as a committee of the Conyngham Club. The Rules clearly contemplated that, in certain events, the committee might report the plaintiff to the stewards as a defaulter. Whether the claim of privilege was based upon duty or common interest it could not be well founded unless and until the defendants found that the plaintiff was a defaulter or, in other words, until they found that he did, in fact make the disputed bet. In the absence of such a finding how could it be suggested that the defendants were under any duty to report him? Equally, how could it be suggested that any common interest existed between the defendants and the stewards for reporting as a defaulter a person not found to be a defaulter?

Accordingly, the question of privilege turned and depended upon the question as to whether the defendants, before making their report, found, as a fact, that the plaintiff had made the disputed bet. If they had made such a finding, then, in his Lordship’s opinion the occasion was privileged, even though the defendants made a mistake in their finding—the question was referred to them for decision and, if they honestly determined the matter, they were entitled to claim *172 privilege, however erroneous their decision might have been in point of fact.

The evidence upon which the claim of privilege ultimately depended was that contained in the defendants’ minutes. That evidence seemed to be ambiguous. It was open to the construction, placed upon it in the Defence, that the defendants found that the disputed bet had been made; but that, in the special circumstances, they considered that the plaintiff should only be called upon to pay half the amount. It was also capable of meaning that the defendants found that the parties were never ad idem, in which event there was no agreement and, consequently, no bet. Another possible view was that the defendants were unable to decide, as between Mr. Power and the plaintiff, the simple question of fact referred to them for determination, and that, in the circumstances, they considered that the fairest thing would be to compel the plaintiff to pay half the amount in dispute. If the defendants, in fact, decided that the disputed bet was made, it would have been very simple for them or some one or more of them, to have gone into the witness-box and given evidence to that effect. They did not do so and thus left the evidence unsatisfactory and incomplete on a matter peculiarly within their knowledge, in respect of which they, and they alone, could have given evidence.

In those circumstances and bearing in mind the well recognised principle that the onus of establishing a claim to privilege rested upon the defendant making that claim his Lordship was of opinion that the defendants failed to establish their claim and that the ruling of the trial judge on this matter was wrong in law and should be set aside.

The occasion upon which the communication was made, not being privileged malice was to be presumed and the question of express malice did not arise. There was no evidence in the case which would justify a finding that the defendants were actuated by malice in reporting the plaintiff as a defaulter. The fact that the defendants might have made a mistake as to the extent of their powers was no evidence of malice and the entire facts and the history of the proceedings before the defendants all tended to negative malice in the clearest possible way.

The only remaining question was the submission by the defendants that the damages were excessive. In his Lordship’s view a Court should be slow to interfere with the findings of a jury on a question of damages—particularly in a libel action, where the amount of damage was peculiarly a matter for the jury and he agreed that it would not be justifiable to interfere with the finding of the jury merely because it was considered that the amount fixed by the jury was greater than the Court would have found. There was a further element in the case—the jury found that the defendants were actuated by malice in making the communication and they were entitled to take that into account in assessing the amount of damage. Having arrived at the conclusion that the jury were wrong in their finding as to malice and that this might have affected the amount of damages as assessed by them, his Lordship was of opinion that their finding as to damages should be set aside and a new trial directed limited to the amount of damages.

Black, J., in the course of his judgment, said that the second point in the case, namely malice, might well be disposed of first. His view was that there was no evidence on which malice could reasonably be imputed to the defendants and that the jury’s findings of malice was unsustainable. That cleared the way for the real problem, viz., privilege.

The test of a privileged occasion was never better summarized than by Lord Johnston in James v. Baird 1916 S. C. 525 or by Smith, L.J., in Hebditch v. Mcilwaine [1894] 2 Q. B. 54. The defendant should either have had a duty to make or an interest in making the defamatory communication to the party to whom he had made it and the latter should have had either an interest or a duty in having it made to him. The defendant might have an interest, as distinct from a duty, as in Clark v. Molyneux 3 Q. B. D. 237, where he repeated the slander to his curate for a legitimate purpose of consultation. Or again, he might have a duty, but no interest, as half the Court thought he had in Coxhead v. Richards 2 C. B. 569, or as Lindley, L.J., (and on that point, Lopes, L.J.) thought was the position in Stuart v. Bell [1891] 2 Q. B. 341.

So the receiver of the communication might have an interest, as a trader in the credit of an intending customer, or he might have a duty, though no interest, as where he received the communication for somebody who had an interest, or where his capacity was like that of an auctioneer in Blackham v. Pugh 2 C. B, 611.

But, an interest or a duty there should be both on the part of the maker and the part of the receiver of the communication.

Yet, the word “interest” required explanation. A mere general interest would not, his Lordship thought, suffice as a rule. It should be a particular interest. Lord Hanworth, M.R., drew that contrast in Chapman *173 v. Ellesmere [1932] 2 K. B. 431, 456. He said: “There is no authority which protects the statement … where it is made, not in answer, but as a fresh item in which a general, as distinguished from a particular interest already aroused, prevails.”

His Lordship had used the phrase “as a rule” because exceptions were possible, as where the publication was in defence of a party against a false charge already published by the plaintiff. Lord Hanworth had such a case in mind. The ideal example was Adam v. Ward [1917] A. C. 309. Albutt v. General Council of The Medical Association 23 Q. B. D. 400, also stood on special grounds involving a public duty by a quasi-judicial statutory body. In Chapman v. Ellesmere counsel told the Court that he thought those were the only reported cases of the kind.

In London Association v. Greenlands [1916] 2 A. C. 15, 34, Lord Atkinson having referred to the tests, said: “Baron Parke never meant, I think, to lay down that implied malice is to be taken to be rebutted where these tests have not been fulfilled, although the common interest and protection of society might be served by the publication of the defamatory matter in question.” That seemed another way of saying that a mere general interest would not do. Were that not so, anybody who informed anybody else that a third party was a criminal could claim privilege; for the informed party, like every citizen, would have a general interest in the identification of a criminal. Yet, in fact, the informer would be well advised to confine his communication to those who, as Lord Campbell said in Harrison v. Bush 5 E. & B. 334: “Have the power and duty to inquire into it and take steps to prevent the repetition of it.”

Next, if an interest of the addressee in a defamatory communication which was only the interest which he shared equally with the whole community would not privilege the defamer, it would seem logically inevitable, and a fortiori, that an interest which was only a general interest shared equally with all other members of a mere section of the community would not confer such a privilege. It was very different if the addressee and the defamed party were in relationship which involved mutual dealings or if either of them were contemplating entering into dealings with the other. But it could not be thought that the addressee would have the necessary interest if the only probability of his entering into dealings with the defamed party was merely due to their both belonging to a section of the public whose members would be more likely than the rest of the public to enter into such dealings.

How, then, did those views stand in the light of the authorities? In Fitzsimons v. Duncan and Kemp & Co. [1908] 2 I. R. 483, 498, Palles, C.B., whose remarks were described by Hamilton, L.J., in Greenlands v. Wilmshurst [1913] 3 K. B. 543, as “very weighty” pointed out that the defamatory communication there was an answer to inquiries by a client regarding a person “with whom he proposed to deal.” The Chief Baron said: “I am not to be taken as holding that the communication to a client of a book containing particulars as to the solvency of a number of persons, with many of whom the inquirer had no intention of dealing, is within the privilege. I entertain a strong opinion that it is not.” The important words “with many of whom the inquirer had no intention of dealing” were italicised in the official report Palles, C.B., went on to define the notion “that the privilege applied to” what he called “this startling extent.”

In Fitzsimons v. Kemp the parties to whom the libel was published “proposed” as the report said “to enter into dealings with the plaintiff.” Now, if no such dealings had been contemplated, Palles, C.B., clearly would have held that there was no privilege. Yet, the parties being in the same trade, had a common interest in that trade and in the credit of those engaged in it, and were more likely than members of the general community outside that trade to have such reciprocal dealings. Nor, in the Chief Baron’s view, would it suffice even if mutual propinquity or former relations made such future dealings probable; for there might still be an absence of any actual “intention of dealing,” provisionally or otherwise. The Court of Appeal, differing on quite another ground showed no dissent from the Chief Baron on that point.

The Chief Baron’s “strong opinion” accorded with the statement in Odgers on Libel (5th ed., 262) quoted with approval by Hamilton, L.J., in Greenlands v. Wilmshurst [1913] 3 K. B. 523 as follows. “The circular of a merchantile agency, issued to their subscribers generally is not privileged, although a publication by such an agency to persons having dealings with the plaintiff would be privileged.” Then after the words “having dealings”, one should add the further words “or actually contemplating dealings.” But, the actual contemplation of dealings had been so often stressed by eminent judges as to have hardly any doubt that the Chief Baron was right in regarding *174 it as a vital factor. Thus, in London Association For the Protection of Trade v. Greenlands [1916] 2 A. C. 15, 25, 36, Lord Atkinson called the plaintiff “a contemplated customer” and Lord Buckmaster said “a trader may inquire about the credit of a person with whom he proposes to deal.” In Waller v. Loch 7 Q. B. D. 619, 622, Brett, L.J., said: “If a person who is thinking of dealing with another … asks a question about his character … the answer is privileged.” Again, there were the words “who is thinking of dealing.” In Story v. Challands 8 C. & P. 234 Lord Denman, C.J., said: “If A is going to have dealings with B and he makes inquiry of C, this is a privileged occasion” Once more there was the phrase “is going to have dealings.”

The insufficiency of a general or merely class interest, without any dealings or actual contemplation of such between the addressee of a defamatory communication and the defamed party was illustrated by Getting v. Foss 3 C. & P. 232; Hoare v. Silverlock 17 L. J. Q. B. 308; Martin v. Strong 5 A. & E. 538; Elkington v. London Association 28 T. L. R. 117 and Goslett v. Garment 13 T. L. R. 391. In that last case, for instance, there was no privilege in telling a headmaster that a former assistant master had been seen drunk, the previous relations between the two having terminated and there being no new relations in contemplation. Yet, resumed relations were quite possible, and more likely than if the headmaster had not belonged to a class specially interested in the employment of masters. His Lordship could only find two cases which might seem to go beyond the principle stated, and neither might have been adequately reported. They were Barr v. Musselburgh Merchants’ Association 1912 S. C. 74 and possibly Keith v. Lauder (1905) 8 F. C. 356 although from the judgments in that case, Hamilton, L.J., said he was unable to extract any definite principle. If either of those cases went beyond the doctrine suggested, his Lordship preferred the “strong opinion” of Palles, C.B., and the implications of the dicta above quoted.

Applying those principles to the present case, what could be said to give the Turf Club or its stewards that interest in hearing that the plaintiff did not pay his bookmaker which would make the occasion privileged? Could it be the fact that the members of the Turf Club—some fifty in all—were keenly interested in racing? They shared that interest equally with multitudes of people who thronged the betting offices, swarmed to race meetings, or palpitated every day of their lives over the racing reports in the evening newspapers. That kind of interest would not do.

Then could racing enthusiasts acquire the requisite interest by forming themselves into a club to promote racing and to warn off the Turf any person who was reported to them as a defaulter by a self-constituted body whose reports they acted upon automatically? If so, they might cover the whole country with clubs, each with the like interest. Nay, it the devotees of racing could do that, and thereby invest their recognised reporters with privilege, so surely could the votaries of every other sport and game, every cult, every trade, and indeed, every human activity that inspired general enthusiasm or even sectional interest. Each might set up its club, or a club in every parish, to lay down rules outside the ordinary law for the proper conduct of its own particular activity, and each of those in turn might recognise a sort of Conyngham Club of its own as a tribunal to try and report on alleged breaches of its ordinances by any citizen in the land. Anybody might lodge a complaint against anybody else. If the latter did not recognise the tribunal judgment might be given against him by default and published to all the members, however numerous, of a self-constituted body whose rules he, though a complete stranger, was alleged to have broken. The judgment as thus published might be false and defamatory. It might ruin the victim. It might be caused by the incompetence, the stupidity, or even the negligence of the self-appointed inquisitors, for negligence did not necessarily show malice. There would be no right of jury challenge, no appeal and no redress unless it were possible to prove malice.

The fact that enthusiasts in countless other activities had not followed the example of the clubs here in question in assuming rule-making and warning functions and in recognising committees of self-appointed inquisitors was beside the point. The point was that they could do it and if they all did it and all had the privilege claimed, with no better right, by the defendants, the result might well be to open the floodgates to a deluge of privileged defamation undreamed of by the generations of judges who evolved the law upon that subject.

His Lordship’s opinion was that the law did not authorise any such possible extension of privilege and that neither the general enthusiasm for racing of the Conyngham and Turf Clubs respectively, nor their assumption of the functions which they respectively exercised, could, without more, invest the Turf Club or its stewards with the kind of interest *175 in receiving a defamatory communication about an individual which could give rise to a duty in the Conyngham Club Committee to make such a communication or render it a privileged communication if made.

That subject was elaborated for two reasons: 1. It was of general importance in defamation cases, 2. Certain isolated passages in the judgments of Chapman v. Ellesmere [1932] 2 K. B. 431 were capable of conflicting with the view above stated (See Lord Hanworth, p. 449; Slesser, L.J., p. 467; and Power, L.J., p. 473). It was said that “the stewards owe a duty to all persons interested in racing to keep them informed of their decisions.” His Lordship inclined to read those dicta as Lord Halsbury advised in Quin v. Leatham [1901] A. C. at 506“as governed and qualified by the particular facts of the case in which such expressions are found,” the qualifying fact in Chapman v. Ellesmere being that the plaintiff had bound himself by a rule authorising the publication complained of. If the judges really meant that even without that fact the publication in the Racing Calendar would have been privileged that would have been a flat contradiction of the precise point decided by the Court of Appeal in Hope v. L’Anson—a decision from which, after quoting it, they indicated no dissent.

Such, then were the views to be extracted from the authorities and they seemed to accord with natural equity. It would be otherwise if there had existed a certain relationship between the plaintiff and the Turf Club involving mutual confidence or obligation, or if those parties had contemplated any dealings with one another. There was no evidence of any such relationship or contemplation of dealings. There was one way in which it might be argued that such dealings were contemplated. It might be put this way: “The plaintiff was admittedly a frequenter of race meetings. He should be treated as having contemplated the continuance of his practice. His actual visits to race-meetings after the warning-off supported this. By paying his entrance money and entering the enclosure he would be entering into dealings with the owners or controllers of the race-course. Hence, he should have contemplated entering into dealings with the Turf Club. Thus, the Turf Club had the requisite interest in receiving the defendant’s report about the plaintiff.”

That argument could have no applicability assuming that it would otherwise be tenable, unless the Turf Club owned or controlled at least one race-course. There was no evidence given in the case under appeal, or contained in the transcript, to indicate that the Turf Club either owned or controlled a single race-course in the country. Rule 17 of the Rules of Racing had a reference to “the Turf Club lands at the Curragh.” It did not say that those lands included a race-course, and even if it did, the mere Rule would be no proof of the alleged fact. The argument above postulated, therefore, fell to the ground. However, a certified copy of the judgment of Overend, J., in Bellamy & Ors. v. Reilly (since reported in [1945] I. R. 542) was handed to the Court. Evidence seemed to have been given in that case which led Overend, J., to hold that the Turf Club had rights in respect of the Curragh race-course and held land on which stood buildings used in connection with the course, but upon such terms that in the view of Overend, J., the Club could not exclude from the race-course any person tendering the proper charge, save for just cause. But the present defendants and appellants were not parties in Bellamy v. Reilly. In the present case it was sufficient that there was no evidence in the transcript of any ownership or control of any race-course by the Turf Club.

Next it was said that the plaintiff submitted to an adjudication by the defendants and that that involved assent to the publication to the Turf Club stewards of the decision. First, did he so submit? True, he appeared before the Committee and he had written on 9th November, 1942, to say he had left Mr. Power “on the understanding that it was best to leave the entire matter to your esteemed committee at their next meeting.” It would be vain to say that this was not submitting “the matter” to the commitee. But what was “the matter.” Was it the net issue whether he had bet £180 to £60 or £90 to £30 or did it include the wider issue of whether in all the circumstances he ought to pay and the bookmaker ought to accept, a portion only of the disputed bet. In his Lordship’s view, the true meaning of his implied submission to the adjudication of the Committee was too ambiguous to justify holding positively that the plaintiff could be deemed to have left the committee at large to decide upon a compromise. The committee might have concluded that when the plaintiff heard the previous bet of £90 to £30 twice, he said to the clerk “the same once” but that the clerk did not hear the word “once” and therefore entered the same bet as the previous bet, namely £90 to £30 twice. Then, they might have thought that the plaintiff was negligent in not conveying the word “once” to the ears of the clerk, but that the clerk was also negligent in not making sure that he heard all the plaintiff *176 said. Thus, the committee might have believed that while the plaintiff never meant to make the disputed bet, he should pay half of it for his carelessness in letting the clerk be misled and the bookmaker should forego half for his clerk’s carelessness in being misled. That was only a conjecture, but it was the only one on which his Lordship could understand the compromise. On that basis the adjudication could be understood as a sportsmanlike effort to be fair to both sides. The defendants were sportsmen and not lawyers. Yet, if such was their view of the transaction, it was a pity that they did not exercise their option under what were their own rules of forbearing to report the plaintiff as a defaulter in bets.

However, all that might have been, even if the plaintiff could have been held to have submitted to a full adjudication by the Committee with power to direct a compromise, it would not, in his Lordship’s opinion, follow that he thereby assented to the publication of the decision to the stewards of the Turf Club. That very point was decided by the English Court of Appeal in Hope v. L’Anson 18 T. L. R. 201. Collins, M.R., said: “There is no inference in law that a person submitting a decision of a question to certain other persons, thereby submitted to the decision being published as if it were a decision of a Court of law. The defendants must make out by an admission of the plaintiff that he consented to the publication. It was for the jury and not the judge to say whether proceedings come within the ambit of consent.”

In the present case the question of whether the plaintiff knew that the decision would be published to the Turf Club stewards or assented to such a course was not left to the jury, and there was no evidence of any such knowledge or consent, unless it could be held that the plaintiff impliedly submitted in advance to certain printed rules which were alleged to authorise such publication.

Of course, his Lordship continued, if the plaintiff submitted in advance to a rule authorising such a publication, all that he had said about privilege would not avail him and neither would the jury’s finding in respect of the innuendoes alleged. As Slesser, L.J., said in Chapman v. Ellesmere [1932] 2 K. B. 431 at p. 464, that would be a risk “which the plaintiff (by agreeing to a report of the decision, elected to run.” Even though the publication would not otherwise be privileged, the plaintiff could not complain of something to which he had assented. “This defence,” said Slesser, L.J., “is based upon the doctrine volenti non fit injuria, ” and, expressly applying that doctrine, he held that the plaintiff in Chapman v. Ellesmere should fail in respect of the publication in the Racing Calendar. So, too, if the defendants in the present case could invoke that doctrine, which was the true basis of the plaintiff’s failure, to the extent to which he did fail in Chapman v. Ellesmere, the plaintiff should fail here. But to rely on that doctrine the defendants should show that the plaintiff did assent to a rule or rules authorising the publication. What were those supposed Rules? First, there were the Rules of Racing. The plaintiff asservated that he never saw those Rules before the decision was given against him and it could not be said that he was bound by them. Then, there were the alleged Rules of the Conyngham Club. They were never proved, although what purported to be an extract from them was put in as a document which had been sent by the Club’s secretary to the plaintiff long after the decision had been given. It was urged that Rules in that extract authorised the publication. Leaving aside any question as to proof of those Rules, the plaintiff’s uncontradicted evidence was that he never knew they existed, much less what they provided, until he got this belated extract months after the defamation.

Then came the last straw. It was this: If the plaintiff did not know of those alleged rules, he ought to have known that Rules should exist or probably existed, ought to have obtained them, and should, therefore, be deemed to have been bound by them.

First, ought he to have known that there were Rules? His evidence was that he knew the Club existed, but knew nothing of its having the functions material to the case or of the consequences of their exercise. He was asked in cross-examination whether when he got the request to appear before the Committee, he did not think of inquiring what power the Committee had, the suggestion being that he ought to have guessed that there was a code of Rules. His answer was “the average man does not think of such things.” It would be unreasonable to impute to the plaintiff either a knowledge of such Rules or a duty to demand them. But, it would not be unreasonable to impute to the defendants or the secretary of their Club a duty to acquaint the plaintiff with these Rules, at the time of requesting him to appear before the Committee on the basis that if he failed to do so, judgment would be given in his absence.

Lastly, as to the suggestion that he ought to have obtained the Rules; to say that required some temerity, not to use a stronger *177 word, for what were the facts? On 23rd November the Committee advised the plaintiff of its decision and demanded £45. That set him thinking of an appeal and of the possible existence of formal Rules. On 29th November he wrote by registered letter asking if there were Rules and where he could obtain them. He got no answer. A month later he renewed the request. Again he got no answer. After a second month’s delay, he made the request a third time and again got no answer. Finally, on the 16th February he wrote a fourth time, and at long last, on the 22nd February, he got a short note merely enclosing a booklet purporting to be an extract from the long-sought Rules Now, if after the Committee’s decision it took three months and four letters to extract even an answer to his inquiry whether Rules existed and where they could be got, how many letters and how many months would have been required to obtain a like answer if he had thought of inquiring about Rules before agreeing to appear before the Committee on a week’s notice? That might be doubtful, but what seemed not doubtful was that in view of the treatment given to the inqunies the plaintiff eventually made, it did not lie in the mouths of the defendants to say that the plaintiff ought to have obtained and made himself acquainted with the Rules before agreeing to appear before them, and that, therefore, he should be deemed to have submitted to those Rules.

In summing up, his Lordship’s conclusions were:—
1. Neither the Turf Club nor its stewards, whether by reason of their interest in racing or by reasons of the functions they claimed to exercise, had the kind of interest in receiving the defamatory communication that in itself would render the occasion of its making a privileged one.
2. No evidence was given of any other fact which could or might invest the Turf Club or its stewards with that requisite interest.
3. Since the Turf Club and its stewards had not that requisite interest, the defendants could have had no duty to make the impugned communication to those stewards.
4. The plaintiff, like the plaintiff in Hope v. L’Anson 18 T. L. R. 201, and unlike the plaintiff in Chapman v. Ellesmere [1932] 2 K. B. 431, could not be held to have assented either expressly or by implication to any Rule or Rules authorising the publication of which he complained.
5. The learned President ought to have held at the trial that the occasion was not privileged.
6. In view of the foregoing conclusions, the jury’s unsustainable finding of malice was immaterial except on the question of damages, and their unchallenged findings in respect of the libel and innuendoes and the publication sustained the verdict for the plaintiff.
There remained the question of damages. If there were one question more than another on which a jury ought to be the best judges, it was that of the degree of injury likely to be done to a person in the plaintiff’s position by such a libel as the present. Hence, his Lordship thought no Court should interfere with the jury’s estimate of £1,000 except under some abnormal circumstance. But in the present case a very abnormal circumstance existed, namely that the question of malice, which, of course, meant express malice in fact, having been wrongly left to the jury, they returned a finding of such malice without a vestige of evidence to support such a finding. There was malice in law and malice in fact. The difference was immaterial an libel so far as liability was concerned where the occasion was not privileged. But there was a chasm between the two when damages were in question. In a case like the present, where the occasion was not privileged, evidence might be given of a malicious motive—that of malice in fact for the purpose of increasing the damages. That was laid down in Pearson v. Lematre 5 M. & G. 720 and Anderson v. Calvert 24 T. L. R. 399. In Arbath v. N. Eastern Railway Company 11 A. C. 247, 253, Lord Bramwell said: “That unfortunate word ‘Malice’ has got into cases of action for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive. The case is not the same as where actual and real malice is necessary. Take the case where a person may make an untrue statement of a man in writing, not privileged on account of the occasion of its publication: he would be liable although he had not a particle of malice against the man.” But would any rational jury give the same damages where the defendant was merely guilty of technical malice “without a particle of improper motive” as they would award if he were actuated by what Lord Bramwell by contrast called “actual and real malice”? The jury’s award of £1,000 should be taken to represent an adequate sum in their opinion and in fact on the assumption that there was “actual and real malice,” a sum which would be adequate if there were actual and real malice would seem inevitably to be excessive where there was no evidence of any actual or real malice. *178 Indeed it seemed almost incredible that the same jury which in spite of its belief that the defendants were actuated by actual and real malice deemed £1,000 sufficient would have awarded more than an appreciably lesser amount if it had realised that there was no evidence of any such malice.

In his Lordship’s opinion, while the verdict for the plaintiff should stand, the award of damages should not, and there should be a new trial limited to the sole question of damages.