ICLR: King's/Queen's Bench Division/1940/Volume 1/NEWSTEAD v. LONDON EXPRESS NEWSPAPER, LIMITED. - [1940] 1 K.B.

377 [1940] 1 K.B. 377 [COURT OF APPEAL]


1939 Nov. 2, 3, 6, 7, 20. SIR WILFRID GREENE M.R. and MACKINNON and DU PARCQ L.JJ. Defamation - Libel - No intention to defame plaintiff - Words true of another existing person - Questions left to jury - Whether words could be reasonably understood to refer to plaintiff - Disagreement of jury - Plaintiff awarded one farthing damages - Effect of jury's findings. A newspaper published an account of a trial for bigamy and referred to the prisoner as "Harold Newstead, thirty-year-old Camberwell man." The account was true as regards a Camberwell barman of that name, but was not true as regards the plaintiff, Harold Newstead, aged about thirty, who assisted his father in a hairdressing business at Camberwell Road, Camberwell. The plaintiff brought an action for libel against the proprietors of the newspaper. Five questions were left to the jury, who were unable to agree on the first question: "Would reasonable persons understand the words complained of to refer to the plaintiff?" and they assessed the plaintiff damages at one farthing. No judgment was entered and the parties were left to make up their minds as to the future course of the litigation:Held (affirming the decision of Hawke J. [1939] 2 K. B. 317), (1.) that the evidence would have justified a finding by the jury that reasonable persons would have understood the words complained of to refer to the plaintiff; and (2.) that, assuming the words complained of were capable of a meaning defamatory of the plaintiff, the fact that they were true of another person did not afford a good defence to the defendants. Per MacKinnon L.J. That as the jury assessed the damages at one farthing and no reasonable jury could be expected to assess them at a higher figure, the Court ought not to permit or direct a further trial of the action. APPEAL from Hawke J. (1) Argument on points of law arising out of the findings of a jury in an action for libel. The plaintiff was one Harold Cecil Newstead, a hairdresser, who assisted his father in business at Camberwell Road, Camberwell. The defendants were the printers and publishers of the Daily Express newspaper. The words complained of were published in the Daily Express of March 30, 1938, under the title "Why do people

denoting him exclusively. He said 'I kept them both till the police interfered.'" The case for the plaintiff was that he was well known in the hairdressing trade in Camberwell and elsewhere as Harold Newstead. 377 Page 379 3. above . and that he was about thirty years of age. The plaintiff. [1940] 1 K. and were intended. They asserted that the words were published of an existing person of the name and description therein contained. Married legally for a second time in 1932 his legal wife is pictured right. In relation to that other person. 30-year-old Camberwell man. and a Camberwell man.he unlawfully married nineteen-year-old Doris Skelly (left. (a)Was it true to say that the convicted man was "a Camberwell man"? (b) Was it true to say that the convicted man "liked having two wives at once"? [1940] 1 K. and to mean that he had committed bigamy and been punished therefor. it was the absolute duty of the defendants. above). if the words were intended to refer to some other person. submitted that. who was not the plaintiff. The defendants admitted publication. to refer to that person. or at least their duty.B. the words published were true. Would reasonable persons understand the words complained of to refer to the plaintiff? 2. Was the expression "liked having two wives at once" a fair comment on the conduct of the convicted man? 4. and to ensure that the words published should not be capable of referring to any other person. liked having two wives at once. 317. they said. B.B. but denied that the words complained of were intended or understood to refer to the plaintiff. His Lordship left the following questions to the jury:1. 377 Page 378 commit bigamy?" and were as follows: "Harold Newstead. and were understood. in his reply. In omitting the occupation and address of the convicted man were the defendants (a) (b) reckless? negligent? . to take reasonable care to give a precise and detailed description of such person. and they pleaded justification and fair comment. who was jailed for nine months. In breach of such duty they had recklessly struck out words giving the occupation and address of the person convicted.(1) [1939] 2 K. or that they were defamatory of him. He alleged that the words published were understood by a number of people to refer to him.

5. [1940] 1 K. Peek. The jury returned answers to the last four questions. because the article in question could not refer to the plaintiff and was therefore not defamatory. (4).C. E. but the paper on which they were written was handed down to counsel.B. In the absence of recklessness a person is not liable to pay damages for a publication that is true of one person. 20. and unless sensible people reading the libel could see that it referred to the plaintiff it would not be a libel . The defendants appealed. v. The words complained of were not reasonably capable of applying to the respondent. The answers of the jury were not read out in Court. Hulton & Co. B. 337. 377 Page 380 [SIR WILFRID GREENE M. Lord Loreburn L. O. and the jury ought to have so directed. (2) deals with recklessness and refers to Derry v.) that therefore no judgment would be entered. McNulty (3) Lord Dunedin followed E. C. the case was withdrawn from the jury. and he must be injured by it. B.J. (3) (1889) 14 App. who was not the plaintiff. but were unable to agree on the first question. Hulton & Co. and were discharged. Farwell L. C. in Jones v. Hulton & Co. 444.] The averment that the libel was written of and concerning the plaintiff is a material averment. his Lordship held (1. Slade for the appellants. even if all the friends of another person think that the . [1910] A. (2. Cas.see Lord Alverstone C. Where words are published which are true of an existing person no action will lie at the suit of another person. (2) [1909] 2 K. London Express Newspaper. G. in Jones v. and (3. Damages (if any). Daily Mirror Newspapers (5) was a very different case from the present one. (3) (1) [1909] 2 K. did not afford a defence to the action. Jones (2) and in Shaw v. v. even if that person satisfies the jury that reasonable people might think the words apply to him. E. Ld. Hulton & Co. question four was immaterial. E. The appellants' claim that they were entitled to a judgment in their favour on the jury's answers to questions two and three. Jones.J. and the parties must be left to make up their minds as to the future course of the litigation. 6. 444. The de facto intention of the writer does not affect the issue. Recklessness must depend upon the facts in each case.R.) that an answer to the question whether reasonable persons would understand the words to refer to the plaintiff was essential to the success of the plaintiff in the action. Having heard arguments. (2) In D. Cassidy v. Hulton & Co. (1) applied. The appeal was heard on November 2.) that the principle in Jones v. 3. v. and the fact that the words complained of were intended to refer to. in E. and they assessed damages at one farthing. 480. Question one did not matter. and were true of an existing person. Thomson & Co. 7. 1939. (1) A libel consists in using language which others knowing the circumstances would reasonably think to be defamatory of the plaintiff. The question what effect should be given to the findings of the jury was adjourned for further consideration.

The intention to be found is not one of de facto intention but of assumed intention. 744. The question whether something written about a particular person is capable of applying to another particular person is one for the judge and not the jury. (2) [1910] A. Recklessness arises when the assumed intention differs from the de facto intention by reason of the conduct of the writer of the libel. 452-3. R. An example of (b) is when words are published about A and the publisher must be assumed to know that in view of the outstanding position of B a large number of persons would regard them as applying to B. B. comes from the same district and is about the same age. or (b) by the circumstances and manner of publication.) whether the statement was true of some one other than the plaintiff and of this there is no doubt. 475. B. (6) [1936] 1 K. 20.) Assumed intention is manifested in two ways (a) by the defamatory words themselves. and the plaintiff must plead and prove the circumstances: Bruce v. [1940] 1 K. (5) [1929] 2 K. Ld. Odhams Press. The statement made here was capable of verification by anyone interested and no reasonable person would jump to the conclusion that it referred to his friend the plaintiff. The same sort of question arises as when the question is whether the words used are capable of a defamatory meaning and the question is not what the writer meant. C. 444. The only province of the factor for recklessness in cases of this type is when the writer of an alleged libel says he never meant it in his own mind. The matters that arise here are (1. When the only things that emerge from the evidence in dealing with a true statement (1) [1909] 2 K. although it is apparent that everyone must understand otherwise. 697. B. (2. It is a species of estoppel by conduct. has the plaintiff shown that a defamatory statement has been published of him and.B. (3) (1927) 71 Sol.cap fits him. (6) There is nothing in the article or the surrounding circumstances in this case that particularly points to the plaintiff. 23. 377 Page 381 about some one other than the plaintiff are that the plaintiff has the same name. 331. (4) (1925) 41 Times L. for this purpose an assumed intention must be shown in the clear evidence of no de facto intention. (3.) If the statement is true of that person. J. as already suggested. Lister. It is only where in the words used is a true statement about someone else there is something which points particularly to the plaintiff that the time comes to go to the jury. No one can reasonably assume that the plaintiff is meant. unless there is something in the article or the surrounding circumstances that particularly points to the plaintiff. it is impossible to infer the intention to refer to the plaintiff. Here there is nothing of the kind. (1) Here there was not the necessary foundation to enable the question to be put to the jury of who was the person to . but what meaning the words used might reasonably bear: see Perryman v.

R. 7. T. the learned judge would take that into account in considering whether there was a case to leave to the jury. and R. Alternatively the appellant asked for a new trial and in that case asked that the finding of a farthing damage should stand. [1940] 1 K. [SIR WILFRID GREENE M. there is no such thing as absolute truth.) that judgment could be given on the questions answered by the jury. The facts here are that in the report of the proceedings for bigamy at the Central Criminal Court. It is necessary first to ascertain the meaning of the words used and then see whether they are true and the meaning must be ascertained independently of the writer's .B. 6. R. 197. It is for the papers to make fair and accurate reports and it is only if they do this that the newspaper can claim exemption on the ground of privilege in a case where the report can be taken to apply to a different person. 377 Page 382 would be different if there was something in the surrounding circumstances to point to the plaintiff. M. but the judge had found that the statement was privileged and the jury found that there was no malice. 200. 377 Page 383 referred to as nearly as possible. It is these omissions that have made the words capable of referring to the plaintiff and therefore it is a question for the jury whether the words could reasonably be taken to refer to the plaintiff and the learned judge so held. so that on that finding alone the appellant was entitled to judgment and the absence of an answer to the first question was immaterial. The jury was discharged because they could not agree and therefore there is no verdict. A.] The jury disagreed on the first question of whether the alleged libel referred to the plaintiff..whom the published statement might be understood to refer to. It is submitted that the Court has power so to direct: see Order XXXIX." It is the omission of these identifying things that have given rise to this action and the defendants' sub-editor agreed that it is important to identify the person [1940] 1 K. The appellants here are entitled to judgment on two grounds (1. Next. It is a good defence if the defendants can show that the possible mistake arose through no lack of reasonable care and this the defendants cannot do in the present case. Again there is no such thing as legal or assumed intention any more than there is legal fraud. and was not of the age mentioned in the statement. was unmarried. Here the plaintiff had a second Christian name. At a later stage someone altered that account once more by altering "barman" into "man. In other papers the occupation and address were inserted. Denning K. 3 Ex.) that there was no case to go to the jury and (2. as if a man with the relevant poster had been placed opposite his shop. the Harold Newstead the convict was referred to as having the occupation of a barman and his address in Camberwell given. It (1) (1868) L. After the report reached the newspaper office the assistant editor wrote the matter up into a story and in doing so omitted the address and referred to the man as a Camberwell barman. rr. If the statement in truth referred to an insignificant person and might be taken to refer to a well known person. and the judge ought to have dismissed the action. This point of the appellants' argument would lead to a man who published a libel with the intent of injuring A escaping liability where there was another man of the same name of whom it was true. It is unreasonable to jump to the conclusion that he was referred to. Wilson for the respondent.C.B.

(6) It is now established that what matters is not what the writer of an article means. Kennedy (4) the very point that arises here of omitting a description that would have distinguished that person to whom reference was intended to be made for someone else. Ld. Tribune Co. 12. (5) In Washington Post v. [1910] A. This is made clear by Jones v. Proprietors of the Oldham Chronicle. but what the article means to its readers. p. S. (2) Unreported. They are published at the publisher's peril unless he has some reasonable excuse for doing so. The words used here were clearly defamatory and no regard can be paid to the intention in publishing them. pp. Wilson. and it is for the judge to determine whether what is complained of is capable of a defamatory meaning: Lord Tomlin in Tolley v. 444. 125. (7) When considering whether a publication is reasonably capable of a defamatory meaning the fact that it is true of another person does not matter. 403.B.). Peck v.J. [DU PARCQ L. Kennedy (4) and an Australian authority is Lee v. 341.). p. E. Henty. Fry & Sons. C. (3) and Washington Post v. Ld. [MACKINNON L. (1) [1909] 2 K. 377 Page 384 Metro-Goldwyn-Mayer Pictures. and Gatley on Libel (2nd ed. (1) The judge is clearly right here in holding that the words in question were capable of being defamatory of the plaintiff and that being so the case must clearly go to the jury. They ought to have known that by omitting the name and occupation of the person they were referring to they made it possible that what they said might be taken to apply to another person: see Pollock on Torts (14th ed. The element of negligence is only material in considering whether there is reasonable excuse for what has been done: see Salmond on Torts (9th ed. referred to Cooper and Wife v. 14-15. 331. In Fraser on Libel and Slander (7th ed.).). Here the appellants cannot rely on their defence as reasonable excuse. (2). (2)] It is well established by Hulton's case (1) that the Court did not look to the intention with which words were published: see Spencer Bower on the Law of Actionable Defamation (1st ed. B.intention. (3) [1929] 2 K. 126.] It cannot be an excuse that what has been published . pp. B.J. 200. Hulton & Co. there is a long list of cases in which judges have differed as to what is reasonably capable of a defamatory meaning. It is not what was the intention of the writer of the article that matters. 20. [1940] 1 K. p. J. An article which is prima facie innocent may became capable of a defamatory meaning by reason of the circumstances surrounding its publication. Globe Newspaper Co. but what was the tendency of the article: Capital and Counties Bank v.). In Cassidy's case (3) it was pointed out that if published words were reasonably capable of referring to A the publisher must take the consequences: see Youssoupoff v. (1). American cases dealing with this branch of the law are Hausa (or Hauson) v.

R. O. Slade upon the language used by Farwell L. Lord Shaw. 1939.J. The learned Lord Justice says (2): "But it is not enough for a plaintiff in libel to shew that the defendant has made a libellous statement. It is to be observed that the opinions of the members of the House were not on that occasion considered opinions: if they had been. 781-2. I think it right to state my views upon this matter. and the opinion of the other noble and learned Lord.J. (3) (1909) 214 U. 350. in view of the fact that when that case reached the House of Lords. (7) [1931] A. as representing the real ratio decidendi of the majority of the House. and that the plaintiff's friends and acquaintances understand . G. Great reliance was placed by Mr. Hulton & Co. 20. whose reasoning I find it impossible to reconcile with much of what was said by Farwell L. the language of Lords Atkinson and Gorell in relation to the judgment of Farwell L. SIR WILFRID GREENE M. There is a consensus of opinion that carelessness is no defence to an action for libel. as the expressions in question have given rise to much doubt and controversy. (5) (1934) 51 C. (4) (1925) 3 Fed. Rep.(1) (1934) 50 Times L. does not differ from it in any important particular. 333.B. 207. R. (6) (1882) 7 App. C. (1) It is not surprising that he should have done so. I do not think it necessary to deal at length with the case.R. upon which Mr. two out of the four noble and learned Lords who heard the appeal (Lords Atkinson and Gorell) expressed their "substantial concurrence" with that judgment. Slade strongly relied. 2nd series. Slade replied. I am constrained to regard the reasoning of Lord Loreburn L.J. Cas.J. (2) (1893) 159 Mass. E. But I wish to offer some observations of my own upon one crucial matter.C. At the same time. 581. 741.. I have read the judgment about to be delivered by du Parcq L.J. Agreeing as I do with his conclusions.C. 276. would no doubt have been more explicit. 377 Page 385 is true of another person. 185. Rep. Lords Atkinson and Gorell expressed their concurrence with the opinion of Lord Loreburn L. There are two passages in the judgment of Farwell L. L. Nov. which was much discussed before us. and the reasons which he gives for them. [1940] 1 K. 293.. In these circumstances. in his judgment in the case of Jones v. S.

since my view upon the matter is clear.B.and yet the fraudulent intent is of the essence of the action. 481. 444." Later on he says: "So the intention to libel the plaintiff may be proved not only when the defendant knows and intends to injure the individuals. In that action the necessity for the presence of a fraudulent intention is satisfied if it be shown that the defendant made the statement in question recklessly. careless whether it hold up the plaintiff to contempt and ridicule or not" and (3) "the element of intention." Farwell L. (2) Ibid. if the description is made recklessly. careless whether it were true or false. B." Now it is important to examine carefully the process of reasoning of which these passages form part.B. 464. 377 Page 386 it to be written of him: he must also shew that the defendant printed and published it of him. (2) Ibid. but what did the words mean having regard to the relevant surrounding circumstances. for if the defendant can prove that it was written truly of another person the plaintiff would fail.J." Again. the Lord Justice says (1): "If the libel was true of another person and honestly aimed at and intended for him. [1940] 1 K. (4) Ibid. It appears to me that the analogy of the action of deceit is not a true analogy. the latter has no cause of action." He had previously referred to the fact that fraud is committed where a representation is made (4) "recklessly. which is as essential to an action of defamation as to an action of deceit. Peek (1) .. unless he intended them to refer to the plaintiff.in other words. 480. but also when he has made a statement concerning a man by a description by which the plaintiff is recognized by his associates. then says that the point of difference between himself and Fletcher Moulton L.J. can be proved in the same way in both actions. careless whether it be true or false. although all his friends and acquaintances may fit the cap on him. 481. But this recklessness and this carelessness have .J. 377 Page 387 although there was no intention to cheat or injure the person to whom the statement was made . lies in the meaning of the word "intended" and states (correctly. settled law that a defendant is not guilty of libel unless he wrote and published the defamatory words 'of and concerning the plaintiff' . That view is summarized by Fletcher Moulton L. and not for the plaintiff.(1) [1909] 2 K. B. [1940] 1 K." It would be affectation to say that in criticizing the reasoning of so learned a judge I speak with hesitation.Derry v. to my mind. if I may respectfully say so) that "the inquiry is not what did the defendant mean in his own breast. 444. as to the necessity of the presence of an intention on the part of the defendant to refer to the plaintiff. expresses his agreement with the view which had been expressed by Fletcher Moulton L. and (1) [1909] 2 K. (3) Ibid.J. In the first passage Farwell L. where he says (2): "It is therefore.J. 480.

or contempt. applies the test of recklessness to the meaning of the words used. 20. to identify that person so closely as to make it very unlikely that a judge would hold them to be reasonably capable of referring to someone else. and if the words so referring to B .J. at any rate in the case of statements which are ex facie defamatory.B. But in applying the analogy to the case of libel. makes it as a matter of law impossible for them to be defamatory of B. in E. Subject to this. and can only be altered by legislation. or that a jury would hold that they did so refer. once it is held that the words are capable of referring to the plaintiff. (2) [1910] A. The arguments in this case have ranged over a wide field. in reason to be borne not by the innocent party to whom the words are held to refer.they are relevant only to the question of the fraudulent intent of the person making it. the same words may reasonably convey different meanings to a number of different persons or groups of persons. refer to him they do for all relevant purposes. which was in substance the main argument on behalf of the appellants. for the jury to say whether or not they do so refer. or persons. At first sight this looks as though it would lead to great hardship. 374. it is. But the hardships are in practice not so serious as might appear. ridicule." In the case of libel. words which upon their reasonable meaning refer to B. Their meaning cannot be affected by the recklessness or honesty of the writer. If the words used when read in the light of the relevant circumstances are understood by reasonable persons to refer to the plaintiff. There may also be hardship if words. 23. The law as I understand it is well settled.J. are true of A. Hulton & Co. The appeal must be dismissed with costs. 337. there is no doubt more room for hardship. I do not propose to refer to the authorities which establish this proposition. if those words are defamatory as holding B up to hatred. v. when describing the person of whom they are made. I think. but to state the conclusions as to the law to which I have arrived after examining them. the principle is in truth an illustration of the rule that the author of a written document is to be taken as having intended his words to have the meaning which they convey when understood in the light of the relevant surrounding circumstances. which is quite a different matter. In the case of libel. and so be held to be defamatory of more persons than one. [1940] 1 K. (1) 14 App. where he said (2): "What does the tort consist in? It consists in using language which others knowing the circumstances would reasonably think to be defamatory of the person complaining of and injured by it. except to quote the words of Lord Loreburn L.C. I do not propose to examine those many cases. If A publishes to another person. This is particularly so in the case of statements which purport to deal with actual facts. Persons who make statements of this character may not unreasonably be expected.nothing to do with the meaning of the statement . MACKINNON L. I am unable to hold that the fact that defamatory words are true of A. but are reasonably understood by some as referring to B. But such cases must be rare. C. Jones. and we have been referred to many authorities. not on their faces defamatory. Cas. Even in the case of matters of fact it is no doubt possible to construct imaginary facts which would lead to hardship. but by the party who puts them into circulation. of course. Farwell L. 377 Page 388 After giving careful consideration to the matter. and as applied to B are defamatory. In matters of fiction. If there is a risk of coincidence it ought.

Thirdly.B. what damages he shall be awarded. the reasonable meaning of the words. sixthly. in their reasonable meaning. 377 Page 389 Secondly.J. this preliminary question for the judge must be: "Are these words on their reasonable meaning capable of referring to the plaintiff?" And if he answers that affirmatively I think that. upon the question whether they refer to B must be tested objectively and not subjectively.B. A cannot plead as a defence that the words are. The question is what do the words mean as words. or guarding against the applicability to him of the words. [1940] 1 K. I think it is immaterial whether A was either negligent or reckless in not ascertaining the existence of B. (1)). the rule which is elementary. not what did A in his own mind mean by them or intend them to mean. that was left to them. If B establishes his claim. A cannot plead as a defence that he was unaware of B's existence. In a case in which there is no question that the words are defamatory of him. in Jones v. Further or otherwise negligence or recklessness on the part of A is immaterial. In my opinion the question for us is whether the judge was right in ruling that there was evidence fit to be left . if so. The negligence or recklessness of A may well be among such circumstances. and that when referring to C they are true. Fifthly. reference to negligence or recklessness on the part of A in making the publication. the first question to be left to the jury should be: "Could the words used by the defendant be reasonably interpreted by those (1) [1909] 2 K. The judge overruled this contention: he therefore said that the case must be left for trial by another jury if the plaintiff chose to enter it again for trial. If the words. not exactly in that form. though they also raise other contentions in law. The defendants appeal from this ruling. namely. E.cannot be justified as true. Fourthly. the jury failed to agree. [1940] 1 K. some of which I have previously dealt with adversely to them. and. properly. and only if he answers that question in the affirmative to leave to the jury the questions whether they are in fact defamatory of B. Counsel for the defendants submitted that there was no evidence fit to go to the jury on which they could properly answer this first question in the affirmative. the jury in assessing his damages may take into account all the circumstances of the publication. B. 480. It is hardly necessary to add. there has been in some of the cases (notably by Farwell L. that it is the primary duty of the judge to decide whether the words complained of are capable of a meaning that is defamatory of B. 377 Page 390 to whom they were published as referring to the plaintiff?" On the first question. and the contest is only whether they do so refer. equally capable of referring to C. A may be liable for damages to B. 444. Hulton & Co. if they refer to B. on their reasonable meaning. do refer to B.

I think the judge ought not to let his case go to the jury.would have a special meaning. 377 Page 391 have recourse again to that elusive being "the reasonable man. Jones (1). (Judging from the specimens furnished for our inspection the audience of the defendants' paper must be the more vulgar and unintelligent portion of the general public). may have a still more special signification. But I should like to indicate the reasons which make me doubt. a London man. perhaps he should not impute to them the charitable decency of gentlemen. the nature of the audience may (1) [1909] 2 K. In E. that they are of the class who accept and act on the wickedest proverb that was ever invented: "There is no smoke without fire. If a newspaper printed the sentence: "A. or even to an individual. if they cared to sue. (a) a paragraph in The Times: "John Smith of London. was convicted at the Old Bailey of so and so." and (b) a letter to a householder at his address: "I think it right to let you know that your gardener." On the other hand. who was not the convict. Words in such a paper may have a meaning other than they may have in a local paper addressed to a local audience. but the circumstances of time and place must be taken into account. B. 444." and a man of that name alleged these words to be defamatory of him. Smith. and also the constitution of the audience to whom they were addressed. I think. a man exhibited a poster at the gate of Balliol. B." It seems manifest that The Times could not be successfully sued by a John Smith." and assume that the audience consists of "reasonable people. should have had their cases left to the jury. But if. v.to the jury on which they could reasonably answer "Yes" to the question: "Could the words used by the defendants be reasonably interpreted by those to whom they were published as referring to the plaintiff?" In form this may not be precisely the same as the preliminary question for the judge's determination: "Are the words capable of being defamatory of the plaintiff?" But I think the difference is one of form and not of substance. or lawyers leaving the Courts . and equally manifest that. Hulton & Co.B. or outside the Law Courts. Smith fined for drunkenness. and ought he therefore to leave to the jury the question whether they are so. not merely the actual words. was fined for drunkenness at Bow Street. if the letter was untrue." Secondly." either of two distinguished people. In considering the judge's preliminary question whether the words are capable of being defamatory. what type of mind or intelligence ought the judge to impute to the audience? Not. forty years ago. That doubt is not sufficient to make me express an actual dissent. L. . The audience of a general newspaper is the general public. For I think that truly the preliminary question for the judge is: "On the evidence is it possible for a reasonable jury to answer the above question affirmatively?" My brethren are of opinion that the judge's ruling as to this was correct. bearing the words: "A. is stealing your vegetables and selling them to the local greengrocer. And words in a letter addressed to a few people. A. in considering what is the reasonable meaning of words uttered. I can only suppose that one must [1940] 1 K. I confess that I entertain grave doubt whether it was. especially as I think there is another ground on which this appeal should be allowed. L. the gardener could sue the writer. I would suggest as the two extremes of generality and speciality. The words published to the audiences undergraduates of Balliol.

or contempt. and if he is a man of good character. saying "My real name is Artemus. and (b) the name. who will say they once knew me as Artemus. that that austere journal could ever have printed this trash. e. Hulton & Co. the more remote is the possibility of any real damage to him from the suggested defamation. the percentage of readers who knew of the existence of the plaintiff might have been much greater than the percentage of readers of the Manchester Guardian . Artemus Jones.e. by reason of some local. he needs all the less any protection from any imputation on that character in their minds. As the question is whether the few people who knew of the plaintiff would be acting as reasonable people in thinking. or other. while the percentage of it with special knowledge. and at once holding him in ridicule. I am clear that no one of the many men who struggle through life under the name "John Jones" ought to have had a claim left to the jury. to whom the words were published. and that is a region not far from Manchester. There is implicit also this further consideration.. It was in evidence in that case that the plaintiff was baptized "Thomas Jones. I confess that. 444. 377 Page 393 special knowledge of a section of the audience consists only of their personal acquaintance with the plaintiff. The better his character the more likely are those who know of him (unless they are unreasonably uncharitable) to say: "As usual.. was very widespread and numerous. without further inquiry. and an aunt. hatred." and had only assumed the name Artemus when he came to years of discretion. could have sued." I should be inclined to think that they could only do so if they were more stupid. will say they thought this story of piccadillos at Dieppe referred to me" . or any other Jones. and.B. or did not think about it at all). v.g. acquaintance with the plaintiff. would reasonably think the plaintiff was referred to. B.if I may assume. was infinitesimal. how far is the special knowledge of some members of that audience to be considered in estimating the reasonable meaning of the words to those members? If the audience be a local one. I should be inclined to answer "No.(a) the audience. On the facts of this case . that the words referred to the plaintiff. when one knows anything of one's own knowledge.[1940] 1 K. and may well be owned by more than one person. If the (1) [1909] 2 K. being disagreeable and suspicious people. solely for the sake of argument. and he had dropped the name Artemus when a boy. In all probability there was only one "Artemus Jones" in Great Britain. I have not used that praenomen for many years. is a very ordinary one. i. If the words may have a special significance to the audience. Jones (1) every reader (except those who thought the name merely fictitious. The plaintiff was a well known barrister on the North Wales and Chester Circuit. circumstance." Indeed. But I can call one of my schoolfellows.B. possibly in the world. [1940] 1 K.I think he should have been non-suited. neither Mr. if the words in this case had been printed in a Camberwell newspaper. If the paper had written of the doings at Dieppe of John Jones. If the position had been reversed. and the higher the character of the plaintiff. Harold Newstead. a newspaper gets it wrong. In E. 377 Page 392 have had some minor importance. the smaller the percentage of the specially informed part of the audience. But the sting of the words in that case arose from his very unusual name. and . if they are reasonable people. And if the article had said "Jones" simpliciter. unassisted by the view of my brethren. and had sued Hulton.

and if another jury disagrees. (1) If the judge holds the words to be susceptible of a defamatory meaning in that sense. is similar to that which was applied by this Court in the case of Poliakoff v. It is true that they did not bring in a complete verdict. if not to direct. 390. even if they failed [1940] 1 K. a further trial of this case. yet another. there is a clear distinction between the question which a jury may have to answer. though. (1). since they failed to agree on the first question." Nevill v. 377 Page 395 susceptible of a libellous meaning in this sense. (2. R. the fact that they were true of another person affords a good defence to the appellants. We are encouraged and entitled to assume that any jury consists of twelve reasonable people. Fine Art and General Insurance Co. that twelve reasonable people have assessed the plaintiff's possible damages at one farthing. however. and so on.) That. as I think. For in that case the Court was made aware of the fact that. It is said that we are bound to permit. This ground. and not to supervise a game of forensic dialectics. though with a slight but.). News Chronicle Ld. I suppose I am still entitled to regard them as twelve reasonable people.B. There is. the defendants had paid into Court a sum in excess of that figure. The question for the Court is.) That the evidence would not have justified a finding by the jury that reasonable persons would have understood the words complained of to refer to the plaintiff. another and different ground on which I think this appeal should be allowed.more uncharitable than I hope reasonable people are. 377 Page 394 to agree on a question which has virtually caused disagreement between my brethren and myself. [1940] 1 K. on the facts proved. to adopt the language of Lord Halsbury. I cannot conceive that any twelve reasonable people would arrive at a larger figure. In this case the jury did assess the damages. even assuming that the words were capable of a meaning defamatory of the plaintiff. tradition forbids us to interfere when a jury has assessed damages at a figure that we all think extravagantly excessive. may give the plaintiff the farthing which one jury has already agreed upon. answering "Yes" to it. That is in order that eventually some jury may answer "No" to the first question. DU PARCQ L. that a reasonable man could construe them unfavourably in such a sense as to. if the words did defame the plaintiff.B. and the preliminary question which is for the Court. The ground of this submission is that the words were not capable of such a meaning. And.J. at one farthing. For I think we sit here to administer justice. But they expressed their unanimous opinion as to the amount of damages. whether the words are (1) [1939] 1 All E. paradoxically. I do not think we are constrained to adopt this course. The submissions upon which the appellants rely may be stated shortly as follows: (1. or. the only conceivable damages being one farthing. I know. and which I am satisfied any reasonable jury would agree upon. therefore. As to (1. the . an immaterial extension. on which I would allow this appeal. make some imputation upon the person complaining.

The question which the judge must put to himself involves the assumption that the hypothetical reasonable man is capable of forming what the jury (and perhaps the judge also) may think to be an unduly censorious or suspicious view. is reconcilable with this principle.. thirty-year-old Camberwell man substantially fits the plaintiff. The judge must be careful not to answer in advance the question which is properly for the jury. it must be left to the jury to determine in which sense a reasonable man would understand them: see the judgment of Scrutton L. as conveniently summarizing the effect of his own judgment. in Cassidy's case (1). It cannot now be argued (in this Court. In my opinion it is now settled law that "liability for libel does not depend on the intention of the defamer. to say: "This may refer to some other Harold Newstead": but I am not satisfied that every reasonable man would necessarily have been so cautious. which would justify a jury in finding. in the language of the statement of claim.J. At the same time he must not shrink from withdrawing the case from the jury if he is satisfied that no reasonable man "could" (not "would") attach to them the defamatory meaning alleged. There was evidence. in E. v. at whom he says he meant to strike. Hulton & Co. it is necessary to come to a decision on the interesting and difficult question raised by the second. (3) It seems to me to be impossible. as he then was.J. they should not be left to the jury. 76-7. or the degree of care which he exercised. In the present case.jury are the constitutional tribunal to decide whether the words in fact have that meaning . on reading the alleged libel. Evidence proving the existence of another person to whom the words might have been taken to refer is only relevant to this first question because it proves the words to have been capable of more than one meaning. it may ." The plaintiff is known as a hairdressers' assistant to a comparatively wide circle of customers and other acquaintances in Camberwell. some defamatory and some innocent. (1) If I am right in rejecting the appellants' first submission. Daily Mirror Newspapers. 68. v. A reasonable man who had some acquaintance with him might have been prudent enough. 377 Page 396 argue that every reasonable man attains to that high standard of judicial fairness. The man who believes no ill of his neighbour until the accusation is proved beyond doubt against him is without question a reasonable man. at any rate) that "if words are capable of several meanings. of which one is defamatory. the reasonable man whom they may be supposed collectively to typify would (not could) so construe them. however. Jones (3). consistently with this principle. that any doctrine which would make the defendant's liability depend upon his state of mind. other than the plaintiff. clearly of opinion that the learned judge was right to leave the question to the jury. Nor do I think. but it would be fallacious to (1) [1897] A. C. that the description "Harold Newstead. Hulton & Co. and of at least one meaning which would not be defamatory of the plaintiff. and as clearly stating the principle established by E.J. where he has acquired a modest fame. Daily Mirror Newspapers. and of that of Scrutton L. Jones. I am. but on the fact of defamation": Cassidy v. and to observe the limitation imposed upon his proper function by the law. in Cassidy v. with the greatest respect for the view expressed by Farwell L.B." The correct view is that if the words are reasonably capable of two or more meanings. that is.whether. and in any similar case in which a defendant says that he was only speaking the truth of another person and not meaning to attack the plaintiff. (2) I quote these words of Russell L. I express no opinion as to the answer which the jury ought to have made to the first question left to them by Hawke J. [1940] 1 K. in my opinion.J. to make the defendant's liability depend on the accuracy of his words in relation to some person.

7. is holding that there has not yet been a trial. In the circumstances. or in which a verdict has been given on one issue. and I would add that I find myself in complete agreement with all his observations upon it. (2) Ibid. that the learned judge was right in holding that the case had yet to be tried. Slade suggested. on the contrary. Marsh v. it follows. 444. even if it commended itself to us.. B. The answers of the jury do not amount to a verdict. I prefer to express no view as to the adequacy of the amount assessed by the jury. so that there has been no verdict and no trial.B. [1940] 1 K. 339. in considering how a reasonable man would understand the words. (1) It is hardly necessary to add that this case is clearly distinguishable from one in which the issues joined on different causes of action have been left to a jury. This is not a case in which a new trial is being sought. that it would be proper to make an order limiting the trial to the issue of liability. When a jury has failed to agree on the question of liability. If these two submissions on the part of the appellants are rejected. and that. Isaacs. but he cannot in my opinion escape liability merely by showing that he was careful and that his intentions were good. a decision which it has no power to make: see Watt v. or. r. 377 Page 397 well be right to direct the jury that a reasonable man must be aware of the possibility (it is for them to say in each case whether it amounts to a probability) that in any district there may be more than one person of the same name. plain that this Court would have no power to take that course. and to treat the quantum of damages as having been already the subject of a decision. . Watt. If a defendant has been careful and precise. not ignoring any parts of the description which are inapplicable to the plaintiff. however. See. for instance. C. The Master of the Rolls has dealt fully with this part of the case.(1) [1929] 2 K. It is. of the Rules of the Supreme Court has no application to a case where the Court is not granting a new trial but. 377 Page 398 of them. he may by his care avoid the risk of a successful action. it would in effect be adopting the jury's assessment of damages as its own. B. 354. in my opinion. Mr.B. they must assume that he will read them with such care as may fairly be expected of him. 331. C. I think. its opinion as to what the damages should have been can have no legal effect. itself deciding what damages ought to be awarded. (3) [1909] 2 K. [1940] 1 K. If this Court were to say that such an assessment of damages must stand. (1) It is equally plain that Order XXXIX. 115. [1910] A. 20. in other words. and been unable to agree as to the others. who have returned a verdict on one or more (1) [1905] A.

Solicitors for appellants: Shirley Woolmer & Co. J. Appeal dismissed. B. . (1) (1876) 45 L. J. Solicitors for respondents: Manches & Co. (Q.) 505.I agree with the Master of the Rolls in thinking that the appeal should be dismissed and it becomes unnecessary to decide the questions raised by the cross appeal. P. B.