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All England Law Reports/1971/Volume 2 /Morgan v Odhams Press Ltd and another - [1971] 2 All ER 1156

[1971] 2 All ER 1156

Morgan v Odhams Press Ltd and another

HOUSE OF LORDS

LORD REID, LORD MORRIS OF BORTH-Y-GEST, LORD GUEST, LORD DONOVAN AND LORD PEAR-
SON

24, 25, 29, 30, 31 MARCH, 1 APRIL, 29 JUNE 1971

Libel - Innuendo - Reference to plaintiff - Knowledge of special facts - Newspaper article - Nothing in article
itself pointing to plaintiff - Extrinsic evidence of special facts indicating that article referred to plaintiff -
Whether extrinsic evidence admissible to import meaning that article referred to plaintiff - Knowledge of spe-
cial facts limited to a few readers - Discrepancies between story in article and facts relating to plaintiff -
Whether readers with special knowledge could reasonably understand article referred to plaintiff.

Libel - Innuendo - Interlocutory decision - Particulars - Particulars of plaintiff's claim relied on to show that
words complained of referred to him - Interlocutory application to strike out particulars of claim - Decision of
Court of Appeal that particulars should not be struck out as claim arguable - Whether trial judge bound by
reason of decision to leave case to jury - Duty of trial judge after hearing argument and evidence to rule
whether words reasonably capable of being understood to refer to plaintiff.

Libel - Damages - Assessment - Factors to be taken into account - Failure to offer apology - Knowledge of
special facts indicating that libel referred to plaintiff limited to a few readers - Absence of belief on part of
readers in truth of libel.

On 8 November 1965 the first defendant published in its newspaper an article written by the second defen-
dant which stated: 'A girl who is likely to be a key witness in a dog-doping scandal went into hiding yesterday
after threats were made on her life. [M] left her lodgings in Elsham Road, Shepherds Bush, accompanied by
two men ... [M] ... was kidnapped last week by members of the gang when they heard she had made a state-
ment to the police. She was kept at a house in Finchley but was eventually allowed to leave ... ' No one was
mentioned by name in the article except M. The plaintiff, in whose flat at Willesden M had stayed from 26 Oc-
tober to 1 November 1965, brought proceedings for libel against the defendants. In interlocutory proceedings
the defendants sought to have struck out the plaintiff's amended particulars in his statement of claim on
which he relied to show that the words in the article relating to doping and kidnapping referred to him. The
Court of Appeal refused to strike them out, stating that it was arguable that, if the amended particulars were
proved, the words were reasonably capable of being understood to refer to the plaintiff. At the trial six men
who had seen the plaintiff with M on 28 October 1965 gave evidence that they thought that the article of 8
November referred to the plaintiff. In fact the date at which they had seen M with the plaintiff was before the
week in which it was alleged in the article that she had been kidnapped. Furthermore the plaintiff's flat was at
Willesden, some three miles from Finchley, and M had been going about freely with him when the witnesses
had seen her although she was in a distressed condition. The trial judge ruled that, in view of the
[1971] 2 All ER 1156 at 1157

refusal of the Court of Appeal to strike out the particulars in the statement of claim, he was bound to regard
the case as being arguable and to allow the case to go to the jury. The jury awarded £4,750 damages to the
plaintiff. On appeal the Court of Appeal held that the judge ought to have withdrawn the case from the jury
 Page 2

and given judgment for the defendants since (i) he was not bound by the Court of Appeal judgment in the in-
terlocutory proceedings to let the case go to the jury, and (ii) the words complained of were not capable of re-
ferring to the plaintiff because (a) no person knowing what the six witnesses knew could reasonably have un-
derstood that the article referred to him and (b) in an action for libel the defamation must be found in the
words themselves and not in facts extrinsic to them, ie there must be something in the words themselves, a
key or pointer, which indicated that they referred to the plaintiff.

Held - (1) The trial judge was wrong in holding that he was bound as a matter of law by the decision of the
Court of Appeal in the interlocutory proceedings to hold that the words complained of could reasonably be
understood as referring to the plaintiff by persons who knew the circumstances; nothing could be inferred
from the Court of Appeal's decision not to strike out the statement of claim except that the plaintiff's case was
not unarguable; it did not follow that the plaintiff had a reasonable cause of action; this issue was a matter for
the judge to decide at the trial in the light of the evidence, and having heard the argument (see p 1159 h, p
1169 e and f, p 1174 b, p 1178 f, p 1182 f and g and p 1183 a, post).

(2) (Lord Guest and Lord Donovan dissenting) Nevertheless the judge had been right to allow the case to go
to the jury, and accordingly, on the issue of liability, the appeal would be allowed, for the following reasons--

(i) there were no grounds for holding that the newspaper article could not reasonably have been understood
to have been referring to the plaintiff; although a critical reading of the article would have revealed discrepan-
cies of time and place between the newspaper story and the facts of M's stay in the plaintiff's company it was
not to be contemplated that readers of a newspaper article of this kind would in the ordinary way read it with
such critical care; there was nothing in the evidence given by the witnesses to show that they could not have
been regarded as having acted reasonably in assuming that the article referred to the plaintiff; accordingly, in
view of this evidence, the judge had rightly left to the jury the question of fact whether on the evidence as a
whole readers having knowledge of the circumstances would reasonably have understood that the article re-
ferred to the plaintiff (see p 1163 d to f, p 1168 h, p 1170 b and f, p 1171 b, p 1183 e, f and j to p 1184 b and
d to f, post);

(ii) it could not be held that the article was incapable of referring to the plaintiff by reason of the fact that it
contained nothing which pointed to him because--

(a) (per Lord Reid and Lord Morris of Borth-y-Gest, Lord Guest and Lord Donovan concurring) there was no
rule that, before an article could be said to be defamatory of a person, it must contain within itself some 'key
or pointer' indicating that it referred to him; where necessary extrinsic evidence was admissible to import a
defamatory meaning to words otherwise innocent (see p 1160 h, p 1162 c, p 1170 d, p 1175 b and c and p
1180 h, post); Cassidy v Daily Mirror Newspapers Ltd [1929] All ER Rep 117 and Hough v London Express
Newspaper Ltd [1940] 3 All ER 31 applied; Astaire v Campling [1965] 3 All ER 666 distinguished;

(b) (per Lord Pearson) although it was right to say that, in order to be defamatory of the plaintiff, the article
must contain something which to the mind of the reader with knowledge of the relevant circumstances, con-
tained defamatory imputations and pointed to the plaintiff as the person defamed, the defendants' article
could in the light of the circumstances be interpreted as referring to the plaintiff (see p 1184 g, post).

(3) (Lord Morris of Borth-y-Gest dissenting) On the question of damages the jury had been misdirected with
regard to the following matters; (i) (per Lord Reid,
[1971] 2 All ER 1156 at 1158

Lord Guest and Lord Donovan) since the defendant's case was that they had never said anything about the
plaintiff there was no call for apology and the jury should not have been directed that they could take the fail-
ure to make an apology into account; (ii) the jury ought to have been warned that although the newspaper
 Page 3

had a wide circulation only a very few readers knew of the special circumstances which could have led them
to believe that the article referred to the plaintiff; (iii) (per Lord Guest, Lord Donovan and Lord Pearson) the
judge ought to have referred to the fact that the article was vague and sensational and that few of the wit-
nesses believed the defamatory matter; (iv) (per Lord Pearson) reference should also have been made to the
fact that the unfavourable impression created in the minds of some readers was likely soon to be dispelled by
verifying the facts from the plaintiff. In the circumstances the award of £4,750 was excessive and a new trial
should be ordered on the issue of the quantum of damages (see p 1164 a to d, p 1177 g to p 1178 e, p 1180
j and p 1185 e to j post).

Per Lord Reid and Lord Morris of Borthy-y-Gest. The contention that, if defamatory words concerning A are
published to B who utterly disbelieves them, A would have no cause of action is fallacious. Apart from any
question affecting the measure of damages, A's rights would be unaffected by the circumstance that B in fact
disbelieved the words (see p 1163 g, p 1168 j to p 1169 b, post); dictum of Goddard LJ in Hough v London
Express Newspaper Ltd [1940] 3 All ER at 35 approved.

Decision of the Court of Appeal [1970] 2 All ER 544 reversed.

Notes

For the requirement that defamatory statements must refer to the plaintiff, see 24 Halsbury's Laws (3rd Edn)
17-19, paras 37, 38 c, and for cases on the subject, see 32 Digest (Repl) 18, 81-85.

Cases referred to in opinions

Astaire v Campling [1965] 3 All ER 666, [1966] 1 WLR 34, Digest (Cont Vol B) 490, 969a.

Bourke v Warren (1826) 2 C & P 307NP, 32 Digest (Repl) 18, 82.

Broadway Approvals Ltd v Odhams Press Ltd [1965] 2 All ER 523, [1965] 1 WLR 805, Digest (Cont Vol
B) 493, 1910a.

Bruce v Odhams Press Ltd [1936] 1 All ER 287, [1936] 1 KB 697, 108 LJKB 318, 154 LT 423, 32 Digest
(Repl) 224, 2448.

Capital & Counties Bank v Henty & Son (1882) 7 App Cas 741, [1881-85] All ER Rep 86, 52 LJQB 232,
47 LT 662, 47 JP 214, 32 Digest (Repl) 23, 135.

Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331, [1929] All ER Rep 117, 98 LJKB 995, 141 LT
404, 32 Digest (Repl) 67, 898.

Drummond-Jackson v British Medical Association [1970] 1 All ER 1094, [1970] 1 WLR 688, Digest (Cont
Vol C) 628, 461a.

Hough v London Express Newspaper Ltd [1940] 3 All ER 31, [1940] 2 KB 507, 109 LJKB 524, 163 LT
162, 32 Digest (Repl) 69, 921.

Hulton (E) & Co v Jones [1910] AC 20, [1908-10] All ER Rep 29, 79 LJKB 198, 101 LT 831; affg [1909] 2
KB 444, [1908-10] All ER Rep 29, 32 Digest (Repl) 18, 84.
 Page 4

Hunt v Goodlake (1873) 43 LJCP 54, 29 LT 472, 32 Digest (Repl) 83, 1058.

Jones v Skelton [1963] 3 All ER 952, [1963] 1 WLR 1362, [1964] ALR 170, [1964] NSWR 485, Digest
(Cont Vol A) 1115, 917a.

Knupffer v London Express Newspaper Ltd [1944] 1 All ER 495, [1944] AC 116, 113 LJKB 251, 170 LT
362, 32 Digest (Repl) 17, 75.

Lewis v Daily Telegraph Ltd [1963] 2 All ER 151, [1964] AC 234, [1963] 2 WLR 1063, 32 Digest (Repl)
85, 1073.

Nevill v Fine Art and General Insurance Co [1897] AC 68, [1895-99] All ER Rep 164, 66 LJQB 195, 75
LT 606, 61 JP 500, 32 Digest (Repl) 83,

1053.

Newstead v London Express Newspaper Ltd [1939] 4 All ER 319, [1940] 1 KB 377, 109 LJKB 166, 162
LT 17, 32 Digest (Repl) 18, 85.
[1971] 2 All ER 1156 at 1159

Sadgrove v Hole [1901] 2 KB 1, 70 LJKB 455, 84 LT 647, 32 Digest (Repl) 135, 1560.

Simmons v Mitchell (1880) 6 App Cas 156, 50 LJPC 11, 43 LT 710, 45 JP 237, 32 Digest (Repl) 57, 605.

Appeal

This was an appeal by the plaintiff, Johnny Morgan, against the order of the Court of Appeal (Lord
Denning MR, Phillimore LJ and Sir Gordon Willmer) dated 20 February 1970 and reported [1970] 2
All ER 544, allowing the appeal of Odhams Press Ltd, the first defendant, and Peter Campling, the
second defendant, from a judgment and verdict of O'Connor J and a jury given on 12 May 1969
awarding damages to the plaintiff in respect of statements contained in an article in The Sun news-
paper of 8 November 1965 written by the second defendant and published by the first defendant.
The facts are set out in the opinion of Lord Morris of Borth-y-Gest.

Colin Duncan QC and R L C Hartley for the plaintiff.

Sir Joseph Molony QC and H M Davidson for the defendants.

Their Lordships took time for consideration.

29 June 1971. The following opinions were delivered.

LORD REID.

My Lords, on 8 November 1965, the first defendant published in their newspaper The Sun an article which
the plaintiff thought referred to and defamed him. Two months later he issued a writ and statement of claim.
More than three years elapsed before the trial of the action. During this time the case was taken twice to the
 Page 5

Court of Appeal in proceedings under RSC Ord 18, r 19 on the ground that the plaintiff's statement of claim
and particulars disclosed no reasonable cause of action. I understand that your Lordships are agreed that
this procedure is only intended to apply to cases where it is plain and obvious that the plaintiff has no case.
Whether that is plain and obvious or only arguable can depend on little more than first impression. The Court
of Appeal on the second occasion could decide no more than that the case should go to trial. It seems to me
to be very regrettable that existing procedure permits the expenditure of so much time and money as oc-
curred in this case on so simple a preliminary issue.

The article complained of has been set out by my noble and learned friends and I shall not set it out again.
The question in this case is not whether the words are defamatory: plainly the words are. The two questions
which arose here were whether they were capable of referring to the plaintiff and whether they did so refer.
The first was for the trial judge when the defendants took the point at the conclusion of the plaintiff's evidence
at the trial. Owing to the somewhat elaborate judgments in the Court of Appeal the trial judge seems to have
thought that this question had been decided there: he did not realise, and I can hardly blame him, that the
Court of Appeal had no power to decide that question, and that he must decide it himself. So he left the case
to the jury. The jury found for the plaintiff and awarded damages of £4,750. Two questions are now before us
for decision: first, whether the case ought to have been left to the jury; and secondly, whether there was mis-
direction by the trial judge either on the merits or on the question of damages. It was also argued that even if
there was no misdirection the amount of damages is excessive: about that I shall say no more than that, if
the jury was properly directed, I could not hold that this amount was so clearly and greatly excessive that the
verdict could not stand.

It must often happen that a defamatory statement published at large does not identify any particular person
and that an ordinary member of the public who reads it in its context cannot tell who is referred to. But read-
ers with special knowledge can and do read it as referring to a particular person. A number of matters are not
[1971] 2 All ER 1156 at 1160

in dispute in this case. It does not matter whether the publisher intended to refer to the plaintiff or not. It does
not even matter whether he knew of the plaintiff's existence. And it does not matter that he did not know or
could not have known the facts which caused the readers with special knowledge to connect the statement
with the plaintiff. Indeed the damage done to the plaintiff by the publication may be of a kind which the pub-
lisher could not have foreseen. That may be out of line with the ordinary rule limiting damage for which a tort-
feasor is liable, but that point does not arise in this case.

On the other hand when people come and say that they thought that the plaintiff was referred to by a state-
ment which does not identify anyone there must be some protection for a defendant who is thus taken un-
awares. It is now well settled that the plaintiff must give sufficient particulars of the special facts on which he
or his witnesses rely. But that in itself may not be enough. It may be plain and obvious that no sensible per-
son could, by reason of knowing these facts, jump to the conclusion that the defamatory words refer to the
plaintiff. Then RSC Ord 18, r 19 can be used to stop the case from going to trial. Otherwise the case goes to
trial.

The next protection for the defendant is that at the end of the plaintiff's case the judge may be called on to
rule whether the words complained of are capable of referring to the plaintiff in light of the special facts or
knowledge proved in evidence. The main question in this case is: how is he to make that decision? It is often
said that because a question is for the judge to answer it must be a question of law. I have more than once
stated my view that the meaning of words is not a question of law in the true sense, even in other depart-
ments of the law where a much stricter test of the meaning of words is adopted than in the law of libel. It is
simply a question which our law reserves for the judge. The question of how words should be read in libel
cases was discussed in Lewis v Daily Telegraph Ltd and I shall not repeat what was said there. We have to
consider how 'ordinary sensible men' (per Lord Devlin ([1963] 2 All ER at 174, [1964] AC at 286)) would un-
derstand the words. So here the judge had to consider how ordinary sensible men, having the special knowl-
edge proved, could understand the words complained of.
 Page 6

But the Court of Appeal imposed a farther, to my mind artificial, limitation:

'There must be some key or pointer in the article itself indicating that it refers to the plaintiff a ... There must be some
words, some initials, some asterisks, some reference or other to him, such that the pleader can insert in these days, as
he always did in the old days, the key words in brackets "(meaning thereby the plaintiff)" b ... there must be something in
the article which pointed to the plaintiff c ... the court must be satisfied that there is something in the article itself to serve
as a peg on which to hang the alleged identification of the plaintiff as the person referred to--something, in other words,
which expressly or by implication points to the plaintiffd.'

In my view, the second of these quotations cannot possibly be right. Suppose a statement that X is illegiti-
mate, and an action by X's mother. It seems to me obvious, and counsel did not contend otherwise, that if
the statement is untrue, the law could not deny an action to the mother. But there is no word after which the
pleader could insert (meaning thereby X's mother). Then I ask what kind of peg, key or pointer would be suf-
ficient. Suppose the statement is that 'X was murdered at 10.05 pm--we know the time because his watch
was smashed at that time and we

a
[1970] 2 All ER 544 at 549, [1970] 1 WLR 820 at 828 per Lord Denning MR
b
[1970] 2 All ER at 550, [1970] 1 WLR at 829 per Lord Denning MR
c
[1970] 2 All ER at 552, [1970] 1 WLR at 831 per Phillimore LJ
d
[1970] 2 All ER at 553, [1970] 1 WLR at 832 per Sir Gordon Willmer
[1971] 2 All ER 1156 at 1161

know it was accurate--and at 10.10 pm a man believed to be the murderer was heard running on the pave-
ment outside the house'. The plaintiff left a party in the next door house at 10.10 pm and ran to catch a bus
and he brings an action. Is 'a man' a sufficient peg? The pleader could add '(meaning thereby the plaintiff)'.
Or suppose the statement was 'A man wearing a hat and a dark overcoat believed to be the murderer was
seen ... ' Is that a sufficient peg? Or 'a tall man with a limp was seen ... ' Is that sufficient? Just how much
particularity must there be?

Let me test the matter by supposing that the statements in the defendants' article had been somewhat differ-
ent. Suppose it had said that Margaret Murray had been kidnapped by the doping gang and taken to a house
in Cricklewood on a date which corresponded with the date of her arrival at the plaintiff's flat in Cricklewood
and suppose that instead of going about with the plaintiff she had felt unwell and had remained in that flat but
that her presence there was known to a number of people. There would be no pointer to the plaintiff; there
are many thousands of houses in Cricklewood and to regard a reference to a house in an area where, say,
100,000 people reside as a pointer to any one or every one of them would be to reduce this new limitation to
an insubstantial formality. But I would think it impossible to say that ordinary sensible people, who knew of
the arrival of Margaret Murray at the plaintiff's flat and that she had not gone out, would have been unreason-
able in coming to the conclusion that the article meant that the plaintiff was one of, or was in league with, the
gang.

Some people may think that the law has gone too far in holding that the publisher of a defamatory statement
which identifies no one is liable if knowledge of special facts which the publisher could not know causes sen-
sible people to think that the statement applies to someone the publisher had never heard of. That may be
arguable: I express no opinion about it, farther than to say that in deciding the question one would require to
 Page 7

have in mind not only the innocent publisher but also the person who wishes to injure the reputation of the
plaintiff but tries to avoid liability by disguising his libel so that it conveys nothing to the ordinary reader but
causes those with special knowledge to infer that it is aimed at the plaintiff.

If this new limitation is intended to distinguish between an innocent publisher and a publisher who has the
plaintiff in mind it fails in its object. It would still leave the publishers of matter ex facie defamatory in its na-
ture liable in at least three cases: where he uses what he thinks is a fancy name (E Hulton & Co v Jones),
where the plaintiff happens to have the same name as the person to whom he intends to refer (Newstead v
London Express Newspaper Ltd) and where he happens to put in something which could be regarded by
those with special knowledge as a pointer or peg although he never intended it to point to the plaintiff. I can
see no substantial distinction between that case and the case where those with special knowledge are
caused to infer that there is a reference to the plaintiff by the narration of facts and circumstances which cou-
pled with that special knowledge do indicate the plaintiff.

The principal authority cited for this novel doctrine is Astaire v Campling. That was a very different kind of
case. Defamatory statements had been made about Mr X: no one knew who he was. Then the defendant
published something which gave a clue to his identity but he did not in any way adopt the earlier defamatory
statements. It was obviously right to hold that he incurred no liability for libels published by others. Sellers LJ
said ([1965] 3 All ER at 667, [1966] 1 WLR at 39):
'It may well be that in circumstances where the identity of a plaintiff is not expressly referred to in an article extrinsic evi-
dence may be given to establish

[1971] 2 All ER 1156 at 1162

identity, but it seems to me a wholly different matter to seek to add to the alleged libel defamatory views expressed and
published by somebody else.'

Diplock LJ said ([1965] 3 All ER at 669, [1966] 1 WLR at 41):

'... the statement of fact or expression of opinion relied on as defamatory must be one which can be reasonably said to
be contained in the statement in respect of which the action is brought and not merely in some other statement.'

I can find nothing in the judgments which throws any light on the question with which I am now dealing, or
which indicates that this question was in the mind of any of the learned judges.

There was no peg or pointer in Cassidy v Daily Mirror Newspapers Ltd or in Hough v London Express News-
paper Ltd. I see nothing wrong with these decisions. They do, however, show that the court recognises that
rather far-fetched inferences may be made by sensible readers. I therefore reject the argument that the plain-
tiff must fail because the defendants' article contained no pointer or peg for his identification. So I turn to the
question whether this case ought to have been left to the jury.

Six witnesses, of whom three were or had been in the police force and three owned businesses, said that
they thought that this article referred to the plaintiff. So on what ground is it to be said that the article could
not reasonably be so understood, and that there was no case to go to the jury? The fact that a number of
honest witnesses formed a certain view is by no means conclusive. It is only an item of evidence. It is for the
judge to decide whether on the evidence an ordinary sensible man could draw an inference that the article
referred to the plaintiff. Much must depend on the degree of deliberation and concentration with which that
sensible man must be supposed to have read the article. If he must have done as a lawyer or a man of busi-
ness would do in scrutinising an important document to discover its meaning, he might reach one result. If he
should only be supposed to have read his daily newspaper in the way in which ordinary people generally do
read it he might reach a different result. That is well illustrated in the present case. The article refers to a
house in Finchley. The plaintiff's flat is in Cricklewood some three miles away, though Finchley Road is only
 Page 8

a mile away. Is the sensible reader bound to say to himself, 'this can't refer to the plaintiff' or can he say, 'we
all know that newspaper articles, though giving a good general impression, are often inaccurate in detail as is
inevitable when stories have to be written at speed?' And there is a discrepancy in time. The article says 'last
week' whereas the girl Murray arrived at the plaintiff's house a week earlier. The article is written in a way
which makes it a little difficult to follow the chronology. Is the sensible reader bound to observe this difference
and, if he does, could he say to himself that the article published on Monday may have been written a couple
of days earlier when 'last week' would have been accurate?

Then there is the fact that the girl was often seen going about openly with the plaintiff and it is argued that
this shows that she cannot have been kidnapped. But she was seen to be in a distressed and once in an al-
most hysterical condition. Could the sensible man not say to himself that that is quite consistent with a kid-
napper having terrified the girl so that she did not try to resist or escape. It is quite true that the six witnesses
gave different reasons for thinking that the article referred to the plaintiff and some were not very good rea-
sons. But two of them were so impressed that separately they rang up the plaintiff to draw his attention to the
article. He 'exploded' and denied that there was any truth in it. Apparently it did not occur to any of them that
the article did not refer to the plaintiff at all.

If we are to follow Lewis's case and take the ordinary man as our guide then we
[1971] 2 All ER 1156 at 1163

must accept a certain amount of loose thinking. The ordinary reader does not formulate reasons in his own
mind: he gets a general impression and one can expect him to look again before coming to a conclusion and
acting on it. But formulated reasons are very often an afterthought. The publishers of newspapers must know
the habits of mind of their readers and I see no injustice in holding them liable if readers, behaving as they
normally do, honestly reach conclusions which they might be expected to reach. If one were to adopt a
stricter standard it would be too easy for purveyors of gossip to disguise their defamatory matter so that the
judge would have to say that there is insufficient to entitle the plaintiff to go to trial on the question whether
that matter refers to him, but the ordinary reader with perhaps more worldly wisdom would see the connec-
tion and identify the plaintiff with consequent damage to his reputation for which the law would have to refuse
him reparation. It may be that publishers ought to have a defence so that they are not liable if neither party
nor the authors knew or ought to have known anything about the plaintiff or any special reasons which cause
certain readers to identify him with the defamatory matter, but we are not concerned with that in this case.

What has to be decided is whether it would have been unreasonable for a hypothetical sensible reader who
knew the special facts proved to infer that this article referred to the plaintiff. I shall not set out those facts be-
cause it appears to me that in the end it all depends on the way in which one is required to assume that a
sensible reader will react on reading this kind of article in a daily newspaper. If one must assume that he
thinks and acts cautiously as a lawyer would do in his professional capacity then I have no doubt that he
would say that that inference is not justified in this case. But if one is entitled to be more realistic and take ac-
count of the way in which ordinary sensible people do in fact read their newspapers and draw inferences
then equally I have no doubt such people would quite probably draw this inference.

This case could only have been withdrawn from the jury if it was proper for the judge to say that all these six
witnesses must be regarded as having acted unreasonably in reaching their conclusions. I see nothing in the
evidence to justify that conclusion. In my view, it could only be reached by applying an unrealistic test of what
is reasonable. I do not think that the law does or should require that. I am therefore of the opinion that the
case was properly left to the jury.

One other matter I must mention at this stage. One of the witnesses thought that the article referred to the
plaintiff but completely disbelieved it; he thought it was rubbish. It was argued that he must be left out of ac-
count because no tort is committed by making a defamatory statement about X to a person who utterly disbe-
lieves it. That is plainly wrong. It is true that X's reputation is not diminished but the person defamed suffers
 Page 9

annoyance or worse when he learns that a defamatory statement has been published about him. There may
be no clear authority that publishing a defamatory statement is a tort whether it is believed or disbelieved. But
very often there is no authority for an obvious proposition: no one has had the hardihood to dispute it.

The next question is whether the trial judge misdirected the jury. It can, I think, be said that taken as a whole
his summing-up was unduly favourable to the plaintiff and that he put too much emphasis on some matters
which were not of primary importance. But he did more than once give the correct direction as to the law and
he did make it clear that the decision was for the jury alone. A judge is not bound to conceal his own opinion.
Owing to the length or complexity of a summing-up the jury may not always keep in mind everything that is
said to them, and sometimes a jury may tend to forget a part, even an important part, of what was said to
them. But a trial judge would have a well nigh impossible task if it were open to an appeal court to hold misdi-
rection because they thought, on reading the transcript, that one matter had been overemphasised or an-
other insufficiently emphasised. There may be rare cases where that would be proper. But in my opinion this
is not one of them. So in my judgment there was no misdirection on the main question of liability.
[1971] 2 All ER 1156 at 1164

But I think that there was misdirection as to the elements which the jury could consider in assessing dam-
ages. The sum awarded was, I think, surprisingly high and misdirection may well have brought that about.
The learned judge directed the jury that they could take into account the fact that there had never been a
word of apology from the defendants. In an ordinary case where the statement alleged to be defamatory
clearly was made of or concerning the plaintiff an apology may well go to mitigating damages. Whether mere
failure to make an apology can ever justify aggravation of damages may be doubted--I need not decide that
here. In the present case I do not see what room there was for an apology. The defendants' case throughout
was that they never said anything at all about the plaintiff. The question for the jury was whether what they
said should be regarded as applying to him or not. To have apologised--I do not know how--might have
seemed to be going some way towards admitting that they had defamed the plaintiff. I think that here there
was a misdirection.

This case had another peculiarity which I think the learned judge ought to have explained to the jury. Al-
though The Sun has a very large circulation only a very few of its readers could have read this article as re-
ferring to the plaintiff--only those who knew the special facts proved in evidence. It was for the jury to judge
how many that might be. No doubt there would be a few more than the six who gave evidence. But the jury
ought to have been warned that it was only publication to those few that could have in any way damaged the
plaintiff's reputation and that they should bear that in mind in assessing damages. Failure to give that warn-
ing may well have caused the jury to assess damages on too wide a basis.

Accordingly in my judgment the verdict of the jury must stand on the question on liability but there must be a
new trial on the question of the amount of damages.

LORD MORRIS OF BORTH-Y-GEST.

My Lords, this was a case which was for trial by a judge and jury. It was so tried. The jury came to clear and
unanimous decisions. Though in these days there are not many civil causes which fall for decision by the ar-
bitrament of a jury it is of the utmost importance that in such cases their province should not be invaded nor
their function usurped. Matters which are properly for their consideration must be left to abide such consider-
ation. Unless there has been some misdirection or some irregularity their decision ought not to be over-
turned. It must be accepted. It is their view and not that of others which should prevail.

The action related to an article which was published in The Sun newspaper on 8 November 1965. On the fol-
lowing day the plaintiff consulted his solicitors and they wrote in complaint on his behalf on 12 November.
 Page 10

The plaintiff was not mentioned by name. But it is manifest that someone may be referred to in an article
without being named. In some circumstances nearly every reader of an article will at once understand that a
reference is to a particular person even though he is not named. In other circumstances such understanding
will only be by limited groups of people. There is here no mysterious principle of law. It is ordinary plain com-
monsense that a hurtful statement may be made concerning a person though his name is not given. In the
language of the law a plaintiff will have a cause of action if he proves that there has been publication of and
concerning him of words which are defamatory of him. The simple issue in this case was whether there was
such a publication.

The article which was published clearly states that there had been dog doping on a vast scale; that those re-
sponsible had reaped great financial gain: that their arrest was likely and imminent; and that a girl named
Margo Murray, who, at their instigation had done much of the doping, had made a full statement to the police
and was likely to be a key witness in the expected criminal proceedings. The article then proceeds to state
that the girl had gone into hiding (following threats on her life) after leaving her lodgings accompanied by two
men and that in the previous
[1971] 2 All ER 1156 at 1165

week she had been kidnapped by members of the gang and kept in a house in Finchley until she was al-
lowed to leave on promising to return to Canada. In fact the girl had been in the plaintiff's house for some
days and nights. She had been seen by many people to be in his company. They knew that she was Margo
Murray. Witnesses came forward and gave evidence to the effect that they had read the article and con-
cluded that it referred to the plaintiff. While all agreeing that it referred to the plaintiff they differed as to which
part of the article contained the more grave allegation against him.

In my view, the article sets out as clearly as possible that the person or persons who had kept Margo Murray
in a house in Finchley had kidnapped her and had done so by reason of membership of or association with
the dog doping gang. If witnesses who knew that Margo Murray had been in the company of and in the
house of the plaintiff said that on reading the article they concluded that the article referred to the plaintiff
were they telling the truth? That was essentially a matter for the jury. Had they been reasonable in so con-
cluding that the article referred to the plaintiff? That was also essentially a matter for the jury. If the jury ac-
cepted the evidence of the witnesses as being truthful and reasonable it would be for the jury further to de-
cide whether the words were defamatory. They would have little difficulty in so deciding. If the jury thought
that the words of the article recorded that whoever had kept Margo Murray in a house in Finchley had done
so in the interests of or as a member of the dog doping gang and after she had been kidnapped by members
of the gang and if the jury accepted that the witnesses had reasonably identified the plaintiff as being referred
to they could hardly fail to conclude that the plaintiff was most gravely defamed. The jury by their verdict must
have accepted that it was reasonable for those who knew certain facts to conclude, as they did, that the
plaintiff was designated.

There was a matter of a technical nature which was involved at the stage of pleading. None of this concerned
the jury. A defendant is entitled to have such knowledge of the case against him as will enable him to decide
how he should plead. So in Bruce v Odhams Press Ltd it was held that in a libel action the material facts on
which a plaintiff relies will include those facts and matters from which it is to be inferred that the words were
published of the plaintiff.

'In such a case as the present, the plaintiff, not being actually named in the libel, will have to prove an innuendo identi-
fying her in the minds of some people reasonably reading the libel with the person defamed, for there is no cause of ac-
tion unless the plaintiff can prove a publication of and concerning her of the libellous matter. See A. L. SMITH, M.R., in
Sadgrove v. Hole (p 1901] 2 KB 1 at 4).'
 Page 11

(see per Slesser LJ ([1936] 1 All ER at 291, [1936] 1 KB at 708)). So in Bruce v Odhams Press Ltd under
rules of court a statement (either in a pleading or in particulars) is necessary of the material facts on which
the party pleading relies.

Before the case finally reached the stage of being heard there were elaborate and extended interlocutory
proceedings. Following the writ of 3 January 1966, the statement of claim (served on 4 January 1966) had
set out facts and matters on which the plaintiff relied in support of the allegation that the words complained of
referred to him. The defendants applied to strike out the claim in libel. They said that the facts and matters
relied on did not support the allegation that the words complained of referred to the plaintiff. They failed be-
fore the master and before the judge but succeeded in the Court of Appeal where an order was made that
the claim in libel be struck out unless the statement of claim was amended. It was amended. The defendants
applied for further particulars. Further particulars were
[1971] 2 All ER 1156 at 1166

delivered. The defendants again applied to strike out. Again they said that the facts and matters set out did
not support the allegation that the words referred to the plaintiff. They lost before the master but succeeded
before the judge and then lost in the Court of Appeal. They failed in a petition for leave to appeal to this
House. Salmon LJ in the Court of Appeal said that if the pleading and particulars had originally been in the
form in which they then were he did not think that the previous appeal to the Court of Appeal would have suc-
ceeded; he made it clear that the court was merely deciding that it was arguable that the words could be un-
derstood as referring to the plaintiff. So in November 1967 the defendants delivered their defence. I only refer
to this melancholy history of the pre-trial skirmishing because it came in for consideration when, at the con-
clusion of the plaintiff's case at the trial (in May 1969), counsel for the defendants invited the learned judge to
rule that the words complained of did not identify anyone.

Certain facts were not in dispute. In 1965 the plaintiff got to know a journalist, Mr Gabbert. Mr Gabbert be-
came interested to investigate, to enquire into and to collect information in regard to dog doping. When he
had collected his material he would be able to write an article in which there would be an exposure of a star-
tling and sensational nature. He got to know a girl, Margo Murray, who, at the instigation and for the advan-
tage of others, had actually carried out dog doping. She made a statement to the police. A prosecution was
likely and in spite of her personal involvement she was to be a witness for the prosecution. It became obvi-
ous, therefore, that she should be looked after and that she should be protected. It is easy to imagine the
steps that those in peril of prosecution might be tempted to take if they had knowledge of an impending pros-
ecution and of her likely role. With the knowledge and concurrence of the police Mr Gabbert found accommo-
dation for her and provided finance for her.

The plaintiff and Mr Gabbert were in touch with each other because the plaintiff had some journalistic
projects in view. On one occasion Mr Gabbert introduced the girl Margo Murray to the plaintiff. The three met
on a later occasion. Subsequently the plaintiff entertained Margo Murray to an evening meal at a restaurant
in the Finchley Road. The hour got very late and the weather very foggy and in the result Margo Murray ac-
cepted his suggestion that she could have accommodation in his flat. In fact she stayed there in the period
from 26 October to 1 November. The plaintiff's evidence was that Mr Gabbert had been most concerned as
to the whereabouts of the girl; although during that period she and Mr Gabbert had met, he had discovered
that she was missing for several days from the place of residence which he had found for her and searches
for her had been made. On 1 November she left the plaintiff. The plaintiff said that she reluctantly left with Mr
Gabbert after he had threatened her with three years' imprisonment if she did not. During the period when
Margo Murray was with the plaintiff they were seen together by many people and I must quite briefly refer to
the evidence given by some of them.

On 7 November Mr Gabbert published an article in The People in which he fully revealed the dog doping
scandal. He named those responsible. He gave a full account of Margo Murray's part. It was a dramatic and
trenchant exposure. On the very next day in The Sun there followed the sensational article written by the de-
fendant, Mr Peter Campling. Here was indeed a revelation. The fact was stated that the girl Margo Murray
 Page 12

had been kidnapped. She had been kidnapped by members of the dog doping gang. She had been kept in a
house in Finchley. Now she was in hiding having left her lodgings accompanied by two men.

The jury had no knowledge as to why the defendant came to write these words. Though Mr Gabbert was a
witness the defendant was not. The defendant presumably expected that those who read his article would
think that it was true. The legal position was thus stated by Lord Shaw of Dunfermline in his speech in E Hul-
ton & Co v Jones ([1910] AC 20 at 26, [1908-10] All ER Rep 29 at 48):
[1971] 2 All ER 1156 at 1167
'In the publication of matter of a libellous character, that is matter which would be libellous if applying to an actual per-
son, the responsibility is as follows: In the first place there is responsibility for the words used being taken to signify that
which readers would reasonably understand by them; in the second place there is responsibility also for the names
used being taken to signify those whom the readers would reasonably understand by those names; and in the third
place the same principle is applicable to persons unnamed but sufficiently indicated by designation or description.'

There was evidence before the jury as to what various people understood when they read the article. There
was a Mr Wood who was a detective constable. He came to know the plaintiff and said that the plaintiff (who
had retired from being a professional wrestler and had become a writer) was very well known in the Willes-
den and Kilburn area. Mr Wood saw the plaintiff in a restaurant on Thursday 28 October, and the plaintiff in-
troduced Margo Murray to him. She told her story about dog doping. She was distressed. Much detailed evi-
dence was given as to that occasion and as to subsequent meetings and movements. On reading the article
in The Sun Mr Wood's immediate conclusion was that the plaintiff was one of the 'two men' mentioned; he
thought that the plaintiff 'was involved in the dog doping business' though he thought that 'the kidnapping
part' was 'just paper talk'. There was a police detective sergeant. He knew the plaintiff well. He described a
meeting with the plaintiff and Margo Murray on 28 October; he saw no reason why the girl should not con-
tinue, if she so wished, to stay in the plaintiff's flat. He advised that it was a sensible course. He gave evi-
dence as to various occasions and interviews in the days following. He saw the article in The Sun. 'I was
convinced that this article in substance referred to [the plaintiff]'. He knew, however, that the whole matter
was in police hands and he considered that the suggestion that the plaintiff had kidnapped Margo Murray
was rubbish. Though he did not believe the story and thought there had been a lapse of a week between the
time when the girl was with the plaintiff and the publication of the article he 'could put no construction other
than this article or part of it referred to him'. The part was that which mentioned kidnapping.

Another witness (who had been in the police force) who knew the plaintiff met Margo Murray in the plaintiff's
flat; she was in a distressed condition. The plaintiff told the witness about her connection with the dog dop-
ers. In the evening the three of them dined together at a restaurant. That witness read the article in The Sun.
He said that it clearly indicated to him that the plaintiff was one of the two men who were referred to; he was
shocked and upset and got in touch with the plaintiff. Until he spoke to the plaintiff he felt that he was in-
volved.

There was a witness who kept a shop and who knew the plaintiff well. He saw the plaintiff on 27 October in
the company of a young lady; two days later the plaintiff came into his shop accompanied by a young lady
who was introduced as Margo Murray. She seemed rather miserable; the witness saw them passing the
shop on two or three occasions. That witness saw the article in The Sun. 'No doubt in my mind it referred to
[the plaintiff]'. He got in touch with the plaintiff who said: 'Do not believe it. There is no truth in it. It is all right.'
Yet the witness added 'but there was still some doubt in my mind'. On reading the article he said that he was
convinced that it referred to the plaintiff.

Another witness was the proprietor of a restaurant who had known the plaintiff for some years. He described
him as very well known in the restaurant; an ex-boxer and wrestler with quite a reputation. The plaintiff intro-
duced Margo Murray to the witness on 27 October and took her to the restaurant on the 28th; the witness
had gathered that she was staying with the plaintiff; on that day (the 28th) she was excited and sobbing and
 Page 13

hysterical and was causing quite a disturbance. The witness saw the article in The Sun and was 'quite shat-
tered' when he read it.
[1971] 2 All ER 1156 at 1168
'I was very dubious about it, about [the plaintiff] particularly. The whole thing reflected on him as far as I was con-
cerned. I did not know what he had done but I thought he was involved in this dope ring, or something, you know, I did
not really know what to make of it. I thought he had done something anyhow. The fact the girl had been kidnapped, or
the article reported this, and the Flying Squad cars were visiting the local areas--I thought maybe [the plaintiff] was in-
volved in this.'

Another witness was the plaintiff's landlord who had known him for very many years. Visiting the building one
evening he came to know that Margo Murray, to whom he had previously been introduced by the plaintiff,
was staying in his flat; on that evening the girl seemed very distressed. The witness saw the article in The
Sun and immediately thought that the article referred to the plaintiff. Being worried as a landlord he sought
reassurance from the plaintiff. My Lords, the evidence that was before the jury cannot be adequately sum-
marised but I have endeavoured to indicate a few of its features.

At the close of the case for the plaintiff a submission was made on behalf of the defendants that the case
should be withdrawn from the jury. It is important, therefore, to consider how matters stood at that stage. In
some defamation cases the issue is whether words are defamatory. That is a matter for the jury. But the prin-
ciple is just the same in defamation cases as in any other cases, that the judge in his control of the proceed-
ings will not leave a case to the jury if the jury could not properly find for the plaintiff. So if a plaintiff com-
plains that words which have been published of him are defamatory a judge will withdraw the case if he de-
cides that the words complained of are simply not capable of bearing a defamatory meaning. He will decide
whether a reasonable man could (not would) regard the words as defamatory. If they are capable of being so
regarded then it will be for the jury to decide whether or not the words did bear a defamatory meaning. No
such issue arose in the present case. It was not suggested, and could not have been, that the words which
were published were not capable of bearing defamatory meanings. They were clearly very defamatory of
someone. The real issue was whether the words were published of and concerning the plaintiff. It mattered
not what was the intention of the writer. In any event the jury had no means of knowing it. As the defendant
did not give evidence the jury could not know whether the defendant had in some unfortunate way been mis-
led or had based himself on some idle gossip; they would perhaps be disposed to give him the credit for not
having merely invented a sensational story. But the question was 'who was hit'? by the words which were
published. The issue was: was the plaintiff hit? If the words referred to the plaintiff there was no suggestion
that the words were true. The question for the judge at the end of the plaintiff's case was whether there was
evidence on which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question
whether the jury could decide that some readers (having knowledge of certain circumstances) would reason-
ably understand the words as referring to the plaintiff. If no reasonable reader could have understood the
words as referring to the plaintiff then there would be nothing to be left to the jury.

In deciding whether or not the words referred to were reasonably understood as referring to the plaintiff the
jury would consider any pieces of evidence which might tend to negative the conclusion that readers reason-
ably so understood, but if the conclusion were reached that readers did reasonably so understand then it
would be immaterial on this issue whether the readers further believed that the words were true or only partly
so believed or declined to believe that they were true. Here I must refer to a contention which was raised in
argument. It was submitted that if defamatory words concerning A are published to B who refuses to believe
that the words are true then A would have no cause of action. I consider that such a contention is completely
fallacious. Apart from any question affecting the measure of
[1971] 2 All ER 1156 at 1169

damages A's rights would be unaffected by the circumstance that B in fact disbelieved the words. I agree
with what Goddard LJ said in Hough v London Express Newspaper Ltd ([1940] 3 All ER 31 at 35, [1940] 2
KB 507 at 515):
 Page 14

'If words which impute discreditable conduct to my friend are used, he has been defamed to me, although I do not be-
lieve the imputation, and may even know that it is untrue.'

It is necessary to consider what was the submission that was made to the learned judge at the close of the
plaintiff's case. It was contended that 'the article in question identifies nobody nor does it permit the identifica-
tion of anybody except those who are named'; accordingly it was contended as a matter of law that--
'when there is nothing in the article itself to identify or point to the identification of a particular plaintiff it is not open to
him, by calling evidence supposedly of people with special knowledge to prove or attempt to prove that they thought
that he was implicated in some way'.

So it was said that 'one must have something in the words complained of themselves which points to a par-
ticular individual as having done something wrong'. The proposition of law was advanced that the evidence
which had been given in the case--
'... is only of weight if there be a hook upon which it can be hung, and there is no identification of any individual suffi-
cient to constitute a hook or peg for that purpose in this case.'

If that contention had been correct it could have been advanced before any evidence was called or before
the hearing began. (It was indeed suggested that all the evidence given on behalf of the plaintiff at the trial
was irrelevant.) Possibly this circumstance together with the fact that the various judgments in the preliminary
Court of Appeal proceedings were much cited and much relied on by both sides lead the learned judge to de-
cide that he was bound by the last Court of Appeal decision to rule, as he did, that the words were 'capable
of referring to the plaintiff and capable of a defamatory meaning'. In fact I consider that the learned judge was
wholly correct in leaving the case to the jury though his ruling was not one that the previous Court of Appeal
decision compelled him to give. The question for decision was whether a jury could come to the conclusion
that the words referred to the plaintiff. As Lord Alverstone CJ said in Jones v E Hulton & Co ([1909] 2 KB 444
at 454, [1908-10] All ER Rep 29 at 38):
'... if, in the opinion of a jury, a substantial number of persons who knew the plaintiff, reading the article, would believe
that it refers to him, in my opinion an action, assuming the language to be defamatory, can be maintained ... If upon the
evidence the jury are of opinion that ordinary sensible readers, knowing the plaintiff, would be of opinion that the article
referred to him, the plaintiff's case is made out.'

The principle was succinctly expressed by Viscount Simon LC in his speech in Knupffer v London Express
Newspaper Ltd ([1944] 1 All ER 495 at 496, [1944] AC 116 at 119) when he said:
'Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether
the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person re-
ferred to.'

To the same effect were the words of Lord Loreburn LC in describing (in E Hulton & Co v Jones ([1910] AC
at 23, [1908-10]All ER Rep at 47)) the tort of libel:
[1971] 2 All ER 1156 at 1170
'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.'

Having regard to the evidence that was given it would, in my view, have been quite wrong for the judge to
have withdrawn the case from the jury, once he was of the opinion that a jury could come to the conclusion
that reasonable readers would understand the words as referring to the plaintiff. It then became a matter of
fact for the jury to decide whether some readers (knowing certain circumstances) would reasonably under-
 Page 15

stand that the article referred to the plaintiff. It was for the jury to assess the witnesses and their reasonable-
ness and to decide whether reasonable people would reasonably understand that the plaintiff was referred
to. It could not possibly have been said in this case that all the evidence was so irrational that it could not be
accepted by anyone and accordingly did not merit consideration by the jury.

The argument which was addressed to the learned judge and to which I have referred, foreshadowed the ar-
gument which later found favour with the Court of Appeal ([1970] 2 All ER 544, [1970] 1 WLR 820). It was
held that there was no 'key or pointer' in the article itself which indicated that it referred to the plaintiff and it
was held that in order to be actionable an article must contain some words which could be pointed to by a
pleader as 'meaning thereby the plaintiff'. With respect I do not agree; nor would I discredit such a case as
Cassidy v Daily Mirror Newspapers Ltd. Astaire v Campling was an entirely different case from the present
one and, in my view, yields no assistance on any question now raised. But in any event, in my view, the arti-
cle now in question does contain a clear pointer to the plaintiff. Suppose that the words of the article had
been: 'The man who kept Margo Murray in his house last week had kidnapped her and was a member of a
dog doping gang'. I would think that it would be clear beyond controversy that a defamatory statement was
made in reference to the man who had kept Margo Murray in his house last week and that there was publica-
tion to those who read the article and who knew who such man was. The words now in question differ some-
what from the words I have supposed.

Further, it was said that what must be contemplated is that a person would read an article with care. With re-
spect I do not agree. What must be contemplated is a reading of a newspaper in what a jury would consider
to be the ordinary way in which a newspaper article would be read. The average reader does not read a sen-
sational article with cautious and critical analytical care. The plaintiff who successfully complained of an arti-
cle which described someone as a churchwarden at Peckham was neither a churchwarden nor did he reside
at Peckham (Jones v E Hulton & Co). Three points influenced the Court of Appeal. First, it was said that if the
witnesses had reflected they would have decided that Margo Murray was under no restraint when with the
plaintiff and could not have been kidnapped by him and so the reference must have been to someone else.
Any such process of reflection might, however, have led them after reading the article to ascribe kidnapping
as the reason for the state of distress that they had witnessed. It is also to be remembered throughout that
the issue was not whether the witnesses believed the words to be true but whether the words were reason-
ably understood to refer to the plaintiff. Secondly, it was said that if the witnesses had reflected they would
have said that the plaintiff's house was not in Finchley and so the reference must have been to someone
else. Some of the witnesses were asked about this. Though Finchley was in fact three miles from the plain-
tiff's flat readers are often not very precise in their knowledge of districts which broadly speaking are within
the same area. One witness said that he did
[1971] 2 All ER 1156 at 1171

not attach much importance to newspaper references to districts as they were never very accurate; he lived
just off the Finchley Road and people thought that he lived in Finchley though the Borough of Finchley was
three miles away. Thirdly, it was said that the article said 'last week' and if the witnesses had reflected they
would have remembered that some incidents they had seen had taken place more than a week earlier and
so they ought to have concluded that the reference was not to the plaintiff. Some of the witnesses, however,
did not know when it was that the girl had left the plaintiff's flat.

My Lords, these were all points for the consideration of the jury. It was for them to say whether any of these
points negatived the view that readers with knowledge of the plaintiff would reasonably have understood that
the words referred to him. It would not have been right for the learned judge on any of these grounds to with-
draw the case from the jury.

Because of the course that they followed the Court of Appeal ([1970] 2 All ER 544, [1970] 1 WLR 820) did
not have to consider the contentions that there was misdirection in the summing-up and that the damages
were excessive. The summing-up was, in my view, a careful one. The learned judge reminded the jury that it
might always be possible for someone, as he put it, to 'cook' a case. The witnesses called on behalf of the
 Page 16

plaintiff were friends of his. It was right, therefore, for the learned judge to ask the jury to consider whether
the witnesses were truthful. As regards the approach which the jury should follow the judge put the matter
most clearly both in the early and later parts of his address. He told them several times that they had to con-
sider whether or not they thought that some readers knowing some or all of the circumstances would reason-
ably understand that it was the plaintiff who was referred to. He invited them to consider what would be the
conclusion of reasonable people who read the article fairly and read it in the way in which reasonable people
would read a daily newspaper. I find no fault with the summing-up.

Then it is said that the damages are excessive. In a case of this sort the quantum of the damages is essen-
tially a matter within the province of the jury and whatever individual view might be formed in regard to the
sum which was awarded I cannot think that it could be said to be such as no reasonable jury could properly
give. The award must stand unless there was any misdirection. It is said that in two respects there was. It is
said that it was a misdirection to mention that there had been no apology. In the context of the summing-up I
do not consider that it was. The learned judge was at pains to tell the jury that if their conclusion in the case
was that the plaintiff was entitled to damages then they would be awarding damages to compensate the
plaintiff and not to punish the two defendants. The sum would relate to the damage to the good name of the
plaintiff and to the injury to his feelings and pride. The defendants made the suggestion to the jury that the
action had been brought as a money-making venture. In those circumstances I cannot think that what the
learned judge said need be regarded as a misdirection. If the plaintiff who, on the verdict of the jury, was seri-
ously defamed was being attacked as having brought an action claiming damages to which he was not enti-
tled was it unfair to point out that the writer of the article who was a defendant had said nothing? The injury to
the plaintiff's reputation and feelings might have been diminished if the defendants had said that they had not
had an intention of referring to the plaintiff and if there had been an expression of regret. They remained
silent. I cannot think that in the circumstances it was wrong to refer to the fact that there was an absence of
what might have diminished the injury to the plaintiff's feelings. When referring to the absence of any word of
regret the learned judge expressly said 'and remember this is not as punishment of a newspaper but it is in
measuring the injury to [the plaintiff's] feelings.'

The other respect in which it is suggested that there was misdirection is that there was an omission to remind
the jury that only a limited number of people would
[1971] 2 All ER 1156 at 1172

know the circumstances which brought it about that the article referred to the plaintiff. In my view, this sug-
gestion is devoid of substance. The trial occupied some parts of eight successive days. It must have been
clear to every juror from an early moment in the case and then throughout the case that identification of the
plaintiff would not be made by every reader of The Sun but by those only who knew certain special circum-
stances affecting the plaintiff. The six witnesses were amongst them. In the earlier part of his summing-up
the judge had clearly reminded the jury of this--though by the time of the summing-up the jury had lived with
the point for days.
'So it is not to everybody who reads the words that it has got to be known. That is why it comes down, for the purpose
of this case, to some of the readers of "The Sun". And who would they be? They would inevitably have to be, in the
case like this, some people with what we might call special knowledge'.

A failure at the end of the summing-up to repeat all this or a failure to emphasise the obvious ought not in my
view to be imputed as misdirection.

I would allow the appeal and restore the judgment based on the decision of the jury.

LORD GUEST.
 Page 17

My Lords, Johnny Morgan, the plaintiff, claims that he was libelled in an article which appeared in the issue
of The Sun for 8 November 1965. The article was in the following terms:

'DOG-DOPING GIRL GOES INTO HIDING

By Peter Campling

'A girl who is likely to be a key witness in a dog-doping scandal went into hiding yesterday after threats were made on
her life.

'Margo Murray left her lodgings in Elsham Road, Shepherds Bush, accompanied by two men.

'It is estimated that the doping gangs have made more than £250,000 in the last few months with coups all over the
country. They are known to have operated at tracks in Ramsgate, Slough, Reading and the Midlands.

'Many arrests are expected in the next few weeks.

'Miss Murray, a 25-year-old Canadian, was kidnapped last week by members of the gang when they heard she had
made a statement to police.

'She was kept in a house in Finchley, but was eventually allowed to leave when she promised that she would return to
Canada.

'FLYING SQUAD
'Before she went into hiding following an exposure of the doping gang in "The People" yesterday, Miss Murray said: "I
told the police everything. The gang got me to dope more than 20 dogs at Walthamstow one night."

'Scotland Yard's Flying Squad yesterday went to several houses, in the Hammersmith, Kilburn and Finchley areas.

'A man known as "The Paymaster", who is believed to have financed the dog dopers has left the country after hearing
that police had interviewed a kennel girl.

'The Scotland Yard investigations are headed by Chief Superintendent Tom Butler, who led the hunt for the Great Train
Robbery gang.'

The name 'Johnny Morgan' did not appear in the article and the plaintiff, therefore, relied on certain extrinsic
evidence which, he said, would entitle an ordinary reader to understand that the article referred to him.

Previously on 7 November there had appeared in The People newspaper an article headed:
[1971] 2 All ER 1156 at 1173
'Dog Racing Sensation. We name the dopers. These men boss the gang. By Michael Gabbert.

'Today we are able to unmask the most highly-organised gang of dog dopers in the history of British Greyhound Racing
... Once I did twenty dogs in one day! ... Margaret Murray: she was worked into the Walthamstow Kennels via the
Labour Exchange.'

The case has had a chequered history which does not reflect credit on the procedure involved. On 4 January
1966 the plaintiff raised his action in respect of the alleged libel against the defendants. The defendants
 Page 18

claimed under RSC Ord 18, r 19 that the statement of claim did not disclose a reasonable cause of action
and should be struck out. The case eventually reached the Court of Appeal who, on 24 May 1966, overruling
the decision of the master and judge in chambers, held that the claim did not disclose a reasonable cause of
action, but allowed the plaintiff an opportunity to amend his pleadings. After the amendments had been made
the defendants again took out a summons to strike out the statement of claim as disclosing no reasonable
cause of action. This summons eventually reached the Court of Appeal who, on 7 July 1967, restored the or-
der of Master Jacob dismissing the summons to strike out. The trial eventually took place before O'Connor J
and a jury who, on 12 May 1969, returned a verdict for the plaintiff and awarded him damages of £4,750.
From this verdict an appeal was taken to the Court of Appeal ([1970] 2 All ER 544, [1970] 1 WLR 820) who,
on 20 February 1970, allowed the appeal and judgment was entered for the defendants. Leave to appeal
was granted by the appeal committee of your Lordships' House.

At the conclusion of the evidence for the plaintiff O'Connor J was moved by the defendants' counsel to with-
draw the case from the jury on the ground that there was no case for them to consider. The learned judge
took the view that as the Court of Appeal at the second hearing had dismissed the summons by the defen-
dants to strike out under RSC Ord 18, r 19 he had no option but to allow the case to go to the jury. Order 18,
r 19, so far as relevant, is in the following terms:
'(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement
of any writ in the action ... on the ground that--(a) it discloses no reasonable cause of action ... or (b) it is scandalous,
frivolous or vexatious; or (c) it may prejudice, embarrass or delay the fair trial of the action; or (d) it is otherwise an
abuse of the process of the court; and may order the action to be stayed or dismissed ... as the case may be.

'(2) No evidence shall be admissible on an application under paragraph (1) (a).'

The procedure under this rule is of an interlocutory nature and demands the exercise of discretion by the
court. The fact that the application to strike out on the ground that the pleadings disclosed no reasonable
cause of action failed does not involve the converse that the pleadings do disclose a reasonable cause of ac-
tion. In the present case all that the Court of Appeal decided at the second hearing was that it was 'arguable'
that the article was reasonably capable of being understood to refer to the plaintiff. They did not decide that it
was so capable. If their opinions did tend to indicate more, then they, in my view, exceeded their jurisdiction
under the rule.

The scope of RSC Ord 18, r 19 was considered by the Court of Appeal in the recent case of Drummond-
Jackson v British Medical Association. It was held by the Court of Appeal (Lord Denning MR dissenting) that
the power of the court to strike out under this rule should be used only in plain and obvious cases. This was
also a case of libel where the question was whether the words were capable of a defamatory meaning. My
noble and learned friend, Lord Pearson ([1970] 1 All ER at 1102, [1970] 1 WLR at 695), denied a reasonable
cause of action as an action with some chance of success. If on examination of the cause of action
[1971] 2 All ER 1156 at 1174

it is certain to fail it should be struck out. These are, if I may say so with respect, correct expositions of the
rule.

In my view O'Connor J was wrong in holding that the matter was foreclosed for him by the decision of the
second Court of Appeal hearing. That court did no more than decide that the plaintiff had an 'arguable case'.
They did not decide that the plaintiff had a reasonable cause of action. The matter was, therefore, at large for
the trial judge to decide in the light of the evidence at the trial whether the case should go to the jury and he
ought to have approached the matter from that standpoint. But even though he decided for a wrong reason to
allow the case to go forward, the question still remains whether he was right in so doing. And that is the
question which I proceed to consider.
 Page 19

If I understand English procedure correctly, at the end of the plaintiff's case in a libel action the trial judge has
to decide whether the words complained of are capable of bearing a defamatory meaning. In this case is also
involved the question whether the words are capable of being understood to refer to the plaintiff. If the judge
decides that the words are not capable of being defamatory of the plaintiff then he should withdraw the case
from the jury. If he decides that the words used are capable of being defamatory of the plaintiff then it is for
the jury to decide whether in fact the words are defamatory of the plaintiff.

On the question whether the words were capable of being defamatory I have no doubt that if they referred to
the plaintiff the words were capable of bearing a defamatory meaning. The article alleged that someone was
associating with a dog doping gang and was attempting to pervert the course of justice by preventing a mate-
rial witness, Margo Murray, from giving evidence by kidnapping her. The difficult question is whether the
words were capable of being understood to refer to the plaintiff. This raises the question whether, at the end
of the plaintiff's case, the judge ought to have withdrawn the case from the jury. The test has been stated:
'were the words in the article capable of being understood by an ordinary sensible reader to refer to the plain-
tiff?' As I have already said, the name 'Johnny Morgan' was not mentioned in the article. But the plaintiff
maintains that by reason of the extrinsic evidence led on his behalf the judge was right in leaving the case to
the jury. The Court of Appeal ([1970] 2 All ER 544, [1970] 1 WLR 820) unanimously took the opposite view
and entered judgment for the defendants.

If I understand their judgment aright the Court of Appeal did so on two grounds. First, that there was no 'key
or pointer' in the article itself to identify the plaintiff and, secondly, that in any case the words in the article
were not reasonably capable of being understood to refer to the plaintiff. With respect to Lord Denning MR I
do not think that in reality these are two separate grounds. The first is merely an aspect of the second.

But I will deal with the first ground. This was said to be based on Astaire v Campling. Lord Denning MR
quoted ([1970] 2 All ER at 549, [1970] 1 WLR at 828) a passage from Diplock LJ ([1965] 3 All ER at 668,
[1966] 1 WLR at 41) to this effect:
'... the statement must itself contain, whether expressly or by implication, a statement of fact or expression of opinion
which would lower the plaintiff in the estimation of a reasonable reader who had knowledge of such other facts, not
contained in the statement, as the reader might reasonably be expected to possess.'

But in my view these observations of Diplock LJ are inapplicable to the question which arises in the instant
case. In Astaire the true basis of the decision is given by Diplock LJ when he says ([1965] 3 All ER at 669,
[1966] 1 WLR at 41):
[1971] 2 All ER 1156 at 1175
'I think that the question raised in this case is one of first principle in the law of libel: what is a defamatory statement? In
my view, the proposition on which this appeal has been based is erroneous. The plaintiff is not entitled by adopting the
device of pleading innuendoes to recover from the defendants damages for defamatory statements made about him by
other persons which are not either expressly or by implication approved, adopted or repeated in the statement by the
defendant in respect of which the action is brought.'

Astaire does not, in my view, assist the defendants.

The necessity for a 'key or pointer' in the publication itself referring to the plaintiff cannot be justified, if extrin-
sic evidence is admissible to connect the plaintiff with the words of the article. It is undoubted that extrinsic
evidence is admissible to import a defamatory meaning to words otherwise innocent. Likewise extrinsic evi-
dence is admissible to connect the plaintiff with the person referred to in the article. This is clearly shown by
the cases of Cassidy v Daily Mirror Newspapers Ltd and Hough v London Express Newspaper Ltd. In Cas-
sidy the newspaper published a picture of Mr Cassidy with Miss X with the caption 'Mr Cassidy the race
horse owner and Miss X whose engagement has been announced'. Mrs Cassidy was not mentioned in the
paper. But she, who was known as the lawful wife of Mr Cassidy, was held to have been libelled by the pic-
 Page 20

ture and caption, the innuendo being that Mrs Cassidy, if Mr Cassidy to be engaged must have been living in
sin with Mrs Cassidy, could not be his wife. A similar situation occurred in Hough. There is, however, an ob-
servation by Goddard LJ ([1940] 3 All ER at 35, [1940] 2 KB at 515) where he poses the question: 'Might rea-
sonable people who knew the special circumstances understand them in a defamatory sense?' I now pass to
consider whether the words in the article were capable of being understood to refer to the plaintiff.

It is, therefore, necessary briefly to refer to the extrinsic facts on which the plaintiff relied. He was well known
in the districts of Willesden Green, Cricklewood, Hammersmith, Kilburn and Finchley. The evidence con-
sisted of a number of acquaintances of the plaintiff who knew that the Margo Murray mentioned in the article
had been staying with him in his flat at Heathfield Road, Willesden. She stayed there from approximately 26
October until approximately 1 November. On 28 October the plaintiff was seen in the company of Margo Mur-
ray. The incident took place in the El Rio restaurant, Walm Lane, Willesden when the plaintiff was there with
Margo Murray and a Mr Donelan. Mr Wood, a detective constable attached to the Willesden Division, saw
the plaintiff with Margo Murray and Mr Donelan. Margo Murray at the plaintiff's invitation told Wood a story
about dog doping. She was crying. When Mr Wood read the article in The Sun on 8 November he concluded
that the two men referred to in the opening paragraph of the article were Donelan and the plaintiff. In cross-
examination he said that he paid no attention to the kidnapping part of the article, but that he reached his
conclusion from the fact of the association between Margo Murray and the plaintiff.

Sergeant Horne was a detective sergeant attached to the Willesden Division. He also was at the lunch party
at the El Rio on 28 October when he was introduced to Margo Murray by the plaintiff. She was crying and
very distressed. He was present when she told her story about dog doping. He knew she was staying at the
plaintiff's flat and he advised her to continue staying there for the time being. When this witness read the arti-
cle he was 'convinced' that it referred to the plaintiff. In cross-examination he said his conclusion was
reached because Margo Murray had been in the plaintiff's flat and from the word 'kidnap', but he knew that
any suggestion of kidnapping was rubbish.
[1971] 2 All ER 1156 at 1176

Mr Baker, who was an ex-police constable, was at the relevant time the licensee of the White Horse public
house. He saw the plaintiff and Margo Murray together on an occasion when he noticed that she was crying.
He said that after reading the article it clearly indicated to him that it referred to the plaintiff and Mr Donelan.
He thought they were the two men referred to in the article because the plaintiff had told him that he had
been at Margo Murray's flat in Elsham Road and that she had been staying at the plaintiff's flat. He paid no
attention to the kidnapping part of the article, but merely reached the conclusion from the association of the
plaintiff with Margo Murray and Mr Donelan.

Mr Martin was the proprietor of a barber's shop in Walm Lane who knew the plaintiff very well. He saw the
plaintiff and Margo Murray passing his shop on several occasions from 27 October onwards. He saw the two
of them emerging from the El Rio restaurant on 28 October in company with Mr Donelan and Mr Wood,
whom he knew as a police officer. He knew Mr Donelan as a bad character. The plaintiff brought Margo Mur-
ray into the shop on the following day and introduced her to the witness. He also saw Margo Murray and the
plaintiff in company on other occasions. The witness read The People article on Sunday 7 November with a
photograph of a girl whom he recognised as Margo Murray. When he read the article in The Sun on 8 No-
vember he had no doubt that it referred to the plaintiff. His thought was solely based on the fact that he had
seen the plaintiff in company with Margo Murray.

Mr Young was the proprietor of the El Rio restaurant in Walm Lane. He had known the plaintiff for about eight
years. The plaintiff had a meal in his restaurant nearly every day. He saw the plaintiff and Margo Murray in
the restaurant on 28 October when she appeared very distressed and was sobbing. This was the only occa-
sion when the witness saw Margo Murray. He read the article in The People on Sunday 7 November and
recognised Margo Murray's photograph and also that of Mr Donelan who had been in the restaurant on 28
October with the plaintiff and Margo Murray. Having read The Sun article on 8 November he was 'very dubi-
ous' whether the plaintiff was involved in it. The dubiety was caused by his knowledge that the girl had been
 Page 21

in the plaintiff's company and had been staying with him. The witness was really very vague. He did not know
what to make of it; he 'wondered' if the plaintiff had got the girl in hiding. 'I did not think ill of anyone at the
time, to be honest.'

Mr Reed lived in Wembley Park and had known the plaintiff for about twenty years. He was the landlord of
the flat where the plaintiff lived at the relevant time. When he was visiting his property he looked into the
plaintiff's flat and saw that the plaintiff and Margo Murray were there. Having read the article in The Sun on 8
November he thought it referred to the plaintiff chiefly for the reference to the girl Margo Murray and the kid-
napping. His belief seems to have been founded on the reference to the Kilburn district and the police flying
squad having visited the district.

I have recounted the salient points in the witnesses' evidence in order to show that I have not failed to appre-
ciate the plaintiff's case. There is no case in the books in which the precise point raised in the instant case
has been considered. I have referred to cases such as Cassidy and Hough where the question was whether
the words were capable, coupled with the extrinsic facts, of bearing a defamatory meaning and the test has
been given as whether an ordinary reader would have understood the words to be defamatory. But here the
question is not whether the words are defamatory. It is conceded that they are, if they refer to the plaintiff.
The question is one purely of identity. 'Are the words capable of being understood to refer to the plaintiff?' In
my view, a somewhat more exacting test should be predicated where the question is one of identity. It is not
sufficient for the reader to say 'I wonder
[1971] 2 All ER 1156 at 1177

if the article refers to Johnny Morgan' nor is pure speculation sufficient. Nor is it sufficient that a reasonable
person believes that the words refer to the plaintiff. The test is an objective one. The ordinary reader must be
fair-minded and not avid for scandal. He must not be unduly suspicious. The ordinary reader must have ratio-
nal grounds for his belief that the words refer to the plaintiff. In my view, this requirement is necessary for the
purpose of preserving the freedom of speech and of preventing newspapers being further liable for torts
which they quite unwittingly have committed.

It is already settled that the journalist need not know the extrinsic facts relied on by the plaintiff (E Hulton &
Co v Jones). It is also the view of Goddard LJ in Hough ([1940] 3 All ER at 35, [1940] 2 KB at 515) that the
fact that the reader does not believe the defamatory allegations against the plaintiff is no defence. The in-
stant case, if decided in favour of the plaintiff, would carry the liability of newspapers even further and it is dif-
ficult to see where it may end.

In my view, none of the witnesses for the plaintiff had any rational grounds for believing that the article re-
ferred to the plaintiff. The idea that he could have 'kidnapped' Margo Murray is too fantastic for reasonable
belief, founded as it was merely on the fact that she had been living in the plaintiff's flat and had been seen
about with him over a period of days; this, moreover, when police officers were present on one occasion and
one of whom advised the girl to continue to stay at the plaintiff's flat. There were no grounds, so far as I can
see, at all for the belief that one of the two men referred to in the opening paragraph was the plaintiff. The
fact is that their belief that the words referred to the plaintiff was founded solely on the association between
the plaintiff and Mr Donelan, a known bad character, and Margo Murray, a known dog doper. These associa-
tions cannot found a reasonable belief that the plaintiff is involved in the known activities of his associates.

In my view, the words were not reasonably capable of being understood by an ordinary reader as referring to
the plaintiff. To hold that the words were so capable would go further than the law has yet gone and this is an
extension which I would deplore. In my view, the Court of Appeal ([1970] 2 All ER 544, [1970] 1 WLR 820)
were right and I would dismiss the appeal and enter judgment for the defendants.

I now turn to the question of damages in respect of which the jury awarded the sum of £4,750. The defen-
dants maintain that there was a misdirection by the trial judge on the question of damages and that in any
 Page 22

case the damages awarded were grossly excessive and that there should consequently be a new trial limited
to the question of damages. These points were not considered by the Court of Appeal ([1970] 2 All ER 544,
[1970] 1 WLR 820) in view of their decision to enter judgment for the defendants. In my opinion, the defen-
dants are entitled to succeed on both these points.

This was not an ordinary libel by a newspaper where the plaintiff was named in the article and where publica-
tion would consequently be to all the readers of the newspaper. The plaintiff could only be identified by those
persons who knew the special facts which enabled them to identify him with the article. There was, therefore,
a very limited publication including and not far beyond, if at all, the witnesses who gave evidence of identifi-
cation. The jury were not told in the summing-up that the damages must accordingly be limited by reasons of
those considerations. This was, in my view, a serious misdirection. Non constat that if the jury had been told
of the limited publication, they would have awarded £4,750. There was another misdirection when the
learned judge told the jury that they might, in considering the amount of damages, take into consideration the
fact that the defendants had never apologised. They maintained the position that the article did not refer to
the plaintiff. Consistently with this defence they could not apologise without widening the area of publication.
The learned judge's actual words were:
[1971] 2 All ER 1156 at 1178
'You are entitled to take into consideration--and remember this is not as punishment of a newspaper but it is in measur-
ing the injury to [the plaintiff's] feelings--the fact that there has never been a word of apology, there has never been a
suggestion from the newspaper saying, "Well, we're terribly sorry, we hadn't the slightest intention of referring to you
and, in so far as anybody thought that, we will instantly say so for the world to see". None of that right up until this mo-
ment. No word of any sort from [the second defendant]; just the blank denial saying: "They don't refer to you and, if
they do, they are not defamatory." It has been reiterated for many days before you, and you are entitled in assessing
the injury to [the plaintiff's] feelings to take that into account.'

In my view, this direction of the judge does not represent the law. Failure to apologise is not evidence of mal-
ice (Broadway Approvals Ltd v Odhams Press Ltd). By parity of reasoning it cannot increase the damages. A
third matter which the judge ought to have referred to in his summing-up was the fact that few of the wit-
nesses who gave evidence believed any of the defamatory matter. This was an item which should have gone
into the balance against an award of damages.

The matter can be viewed from another angle. If the jury awarded damages on the basis of publication to the
world (which was a wrong basis) and the publication was in fact only to a limited class, it follows that the
award of £4,750 is excessive. In any case, I should regard the figure of £4,750 as grossly excessive having
regard to the fact that few, if any, of the publishees believed the dafamatory matter. The damage to the plain-
tiff's reputation can only have been minimal and I should regard £4,750 as amounting to such a figure as no
reasonable jury could in the circumstances have awarded.

I would, therefore, on this aspect of the case be in favour of ordering a new trial limited to the question of
damages.

LORD DONOVAN.

My Lords, when this case came before the Court of Appeal in interlocutory proceedings for the second time,
the court decided, in effect, that it was not satisfied that on the particulars then given by the present plaintiff,
there was no case to answer. To say, as the plaintiff does, that this was equivalent to a finding that there was
a case to answer, seems to me to be a non sequitur. When at the trial the same challenge was made by the
defendants, I think the judge was bound to give an independent ruling on the evidence which had been given
before him.
 Page 23

As regards the merits of the case, the plaintiff's difficulty is, of course, that he is not named or indicated in the
article. He must therefore show that, despite this there are people who could reasonably interpret the article
as referring to him in a defamatory way, because of special knowledge which they possessed. The admit-
tedly defamatory content of the article is: (1) an allegation of the kidnapping of Miss Murray; (2) an allegation
of dog doping by gangs; (3) alleged complicity in that dog doping by Miss Murray. The question therefore is
what special knowledge was possessed and by whom which would lead its possessors reasonably to deduce
from this defamatory matter that it implicated the plaintiff.

Six witnesses gave evidence. It is detailed in the judgments ([1970] 2 All ER 544, [1970] 1 WLR 820) of Lord
Denning MR and of Phillimore LJ and it comes to this; that on 28 October 1965, eleven days before the al-
leged libel was published, the witnesses saw the plaintiff in the company of Miss Murray who was in a dis-
tressed condition; three of these witnesses saw her while she and the plaintiff were having lunch at a restau-
rant; another from his barber's shop opposite; and the other two while the plaintiff and Miss Murray were dis-
cussing her story of the dog doping in the plaintiff's flat with two of the three witnesses who had seen the
couple in the restaurant and thence had gone with them to the flat. These two were Detective Constable
Wood and Sergeant Horne. There was no evidence that anything was said at this discussion in the flat which
[1971] 2 All ER 1156 at 1179

implicated the plaintiff in any kidnapping or in any dog doping. Finally, the plaintiff had been seen by some of
these witnesses in the company of one Mr Donelan who was known to them as a man with a criminal record.
The six witnesses deposed that when they read the article in The Sun newspaper on 8 November they
thought that it did implicate the plaintiff either in the alleged kidnapping of Miss Murray or in the dog doping
allegation. The question is whether this was a reasonable inference for these witnesses to draw, having re-
gard to their knowledge of the proved extrinsic facts.

Certain elementary propositions may be stated. It is always for the plaintiff to prove that the defamatory
words were published of and concerning him. The onus is firmly on him, and if he does not discharge it, he
has no cause of action (Sadgrove v Hole ([1901] 2 KB 1 at 4)). Where, as here, the plaintiff is not named or
indicated in the libel, he may call persons to say that in the light of their knowledge of extrinsic facts they un-
derstood the publication to be defamatory of him (Bourke v Warren, Cassidy v Daily Mirror Newspapers Ltd
and Hough v London Express Newspaper Ltd). Such witnesses can give their evidence generally, and the
grounds on which they formed their opinion be left to be tested by cross-examination. The plaintiff must
prove that the words of the article would convey a defamatory meaning concerning himself to a reasonable
person possessed of knowledge of the extrinsic facts. This requirement postulates (as the plaintiff expressly
accepted) not merely a reasonable person but also a reasonable conclusion. Mere conjecture is not enough
(Capital & Counties Bank v Henty & Son, Hunt v Goodlake ((1873) 43 LJCP 54 at 56), Jones v Skelton
([1963] 3 All ER 952 at 958, [1963] 1 WLR 1362 at 1370) and Gatley on Libel and Slander e).

e
6th Edn, paras 117, 121, 122

Did the plaintiff by the evidence above referred to discharge the onus of proving that the defamatory matter in
the article was published of and concerning him? I would readily concede that the witnesses whom he called
might say to themselves on reading the article and recalling that they had seen the plaintiff in the company of
the distressed girl, and also, occasionally, of Mr Donelan: 'Well, I wonder if Johnny Morgan is mixed up in
this?' In other words, they would indulge in speculation. But did the knowledge that he had been associating
with the girl and Mr Donelan validate as reasonable a conclusion that somehow or another he had been a
party to the kidnapping or to dog doping? I think that question has only to be asked to be answered.
 Page 24

Let it be supposed that instead of suing Odhams Press for damages, the plaintiff after getting the required
leave had prosecuted that concern for criminal libel. He would then have had to prove to a jury beyond rea-
sonable doubt that the libel was published of and concerning him. If the same six witnesses were called and
simply proved that they knew of an association between the plaintiff and Miss Murray and the plaintiff and Mr
Donelan, and based their conclusion of libel on that, no judge trying the case could, in my opinion, possibly
have let the case go to the jury. He would have had to tell them that here there was mere conjecture from as-
sociation; and that no reader of the article could reasonably infer merely from that evidence that the respon-
dents were accusing the plaintiff of a crime. Indeed, to show the danger of such a conjecture, it may be men-
tioned that the plaintiff's association with Mr Donelan turned out to be for the purpose of getting an article on
prison life which the plaintiff hoped to sell.

The standard of proof required in a civil action is, of course, less; it is enough if on a balancing of the proba-
bilities the jury consider that such an accusation could be inferred. But it still has to be reasonably inferred;
and if it becomes clear from
[1971] 2 All ER 1156 at 1180

the cross-examination of witnesses that their conclusion is mere conjecture or speculation then the scales re-
main evenly poised, and the plaintiff does not prove his case. In the present case, after cross-examination, it
was plain that each one of the six witnesses had put two and two together and made it a good deal more
than four.

It is argued, however, that while there might have been no case here if one were dealing with a readership
composed of fellows of All Souls, the readers of The Sun are not in that class. They scan the headlines,
skimp the reading matter, and subject whatever attracts any deeper attention to no careful analysis. Had the
witnesses in the present case done so they would have realised, inter alia, that the plaintiff could not have
been engaged in any kidnapping for the dates given in the article did not fit in with the dates when they saw
him associating with the girl. But, the argument proceeds, this is expecting too high a standard of reason-
ableness in the readers of a popular newspaper. Assuming this to be true for the moment, one may ask
where the argument leads. Are there to be two standards of reasonablness, one for readers of popular news-
papers, and a different one for readers of what are called quality newspapers? So that if this alleged libel had
been published in one of the latter, the plaintiff would have been told that its readers were such careful per-
sons that they would have concluded, even with the aid of the extrinsic facts, that the plaintiff could not have
been one of the persons referred to?

Moreover, in the case of these six witnesses, the article referred (so they thought) to someone whom they
knew, and knew well. It reflected seriously (so they thought) on his conduct and his probity. I fear that read-
ing matter of this sort is more likely to be perused by many people with more attention and more interest than
any more serious and less scandalous matter, and read more than once. Indeed, one of the six witnesses
said expressly that he had read the article very carefully on seeing that Miss Murray was involved, and read it
two or three times. This simply serves to emphasise the unreasonableness of his ultimate conclusion. The
plaintiff's argument is supplemented by this allied contention: that proprietors of newspapers such as The
Sun know that their readers are apt to jump to conclusions; and if they do so, so much the worse for the
newspaper. But this is the very situation in which the law, as it stands at the moment, steps in to protect not
merely newspapers but any writer or publisher, for it imposes an objective test. It requires that any conclu-
sion that they have libelled somebody must be a reasonable conclusion capable of being drawn by reason-
able people, and that mere jumping to conclusions will not do. And the inference of guilt from mere associa-
tion is the hall-mark of the unreasonable man.

Cases such as Cassidy v Daily Mirror and Hough v London Express stand, I think, in a different category.
When a newspaper publishes a statement concerning a man which necessarily implies that he is unmarried,
the same statement necessarily implies that any woman holding herself out as his lawful wife is not entitled
to that status. It is hardly surprising that there have been differences of judicial opinion whether, although the
newspaper may be completely innocent of knowledge of the existence of a lawful wife, it must be regarded
 Page 25

as having defamed her. But at least in such cases it can be said that a reasonable conclusion has been
drawn from what the paper published. On this ground I cannot go with the Court of Appeal ([1970] 2 All ER
544, [1970] 1 WLR 820) in thinking that the two cases cited were wrongly decided, or that there must be
something in the published matter itself which identifies a plaintiff. I do, however, agree that in the present
case that was no evidence justifying a reasonable conclusion that the article was defamatory of the plaintiff,
and on that ground I would dismiss the appeal.

Ordinarily, therefore, I should not need to deal with the issue of damages. But as the majority of Your Lord-
ships think that the appeal should succeed, I express my concurrence on the view that the amount awarded
must be reconsidered for the reasons given by my noble and learned friends, Lord Reid and Lord Guest.
[1971] 2 All ER 1156 at 1181

LORD PEARSON.

My Lords, I will summarise the facts very shortly. For some months before October 1965 Mr Gabbert, work-
ing on the staff of The People, had been investigating a 'dog-doping' conspiracy, and he had found a young
woman, named Miss Murray, who had been a kennel maid at greyhound tracks and had been suborned by
the conspirators to administer drugs, vividly described as 'starters' and 'stoppers', to greyhounds, in order
that the conspirators might place their bets on the greyhounds who had received 'starters' or on those who
had not received 'stoppers'. On 2 October 1965 Miss Murray gave a statement to the police, and soon after-
wards Mr Gabbert was in touch with the police and it was arranged that Mr Gabbert and his colleagues
should look after Miss Murray, who would be a key witness for the prosecution if the conspirators were put on
trial, though of course she could have been put on trial herself. A lodging was found for her in a house or flat
in Shepherd's Bush in West London. The plaintiff, who had been a professional boxer and then a profes-
sional wrestler, had turned to authorship, and he was meeting Mr Gabbert in connection with journalistic
projects. On some date in October 1965, the plaintiff was with Mr Gabbert at a restaurant when someone
else came in with Miss Murray. She was introduced by Mr Gabbert to the plaintiff, and the plaintiff heard the
conversation between them, and after she had left Mr Gabbert told the plaintiff of her experiences and sug-
gested they would make a fantastic story. On 26 October 1965 the plaintiff met Miss Murray by appointment
and took her out to dinner at a restaurant in Finchley Road, and then, as it was a foggy evening, took her to
his flat for the night. The flat was in Cricklewood but on the borders of an area which could be described as
the Finchley Road area. She stayed there with him from 26 October to 1 November 1965. During that period
he and she were seen together in the street and in shops and restaurants in the vicinity of the flat, and it was
observed that she was in a state of distress. On 1 November 1965 Mr Gabbert found Miss Murray, or at any
rate met her again, and he persuaded her, apparently by a threat that she might be prosecuted, to leave the
plaintiff's flat and return to the care of Mr Gabbert and his colleagues until after the trial of the principal con-
spirators.

On Sunday 7 November 1965 there was published in The People a sensational article exposing the dog dop-
ing conspiracy. One of the illustrations for the article was a photograph of Miss Murray bending over a grey-
hound. Her name was given under the photograph, and above it were the words 'Once I did twenty dogs in
one day'. Then on Monday 8 November 1965 there was published in The Sun an article containing the words
complained of, which have been set outf.

f
See p 1172 e to j, ante
 Page 26

The article was written so as to be sensational rather than informative and allusive rather than specific. The
sequence of events and the connections between events are far from clear, especially on a first reading,
which is the only reading which an article of this character is likely to receive. Nobody is named or described
as having been concerned in the kidnapping or in keeping Miss Murray in the 'house in Finchley'. No address
of the house is given. It is not clear whether the second sentence, saying that Miss Murray left her lodgings
accompanied by two men, refers to the occasion on which she was kidnapped or to the occasion when she
was going into hiding. In Cassidy v Daily Mirror Newspapers Ltd ([1929] 2 KB 331 at 339, 340, [1929] All ER
Rep 117 at 120) there is, in the judgment of Scrutton LJ, a passage which I think is applicable to this case,
subject only to minor adjustments of the wording. He said:

'I agree with the view expressed arguendo by Sir Montague Smith in the case of Simmons v Mitchell ((1880) 6 App Cas
156 at 158): "The judge must decide if the words are reasonably capable of two meanings; if he so decide, the jury
must determine which of the two meanings was intended"; and by "intended" I understand that a man is liable for the
reasonable inferences to be drawn from the words he used,

[1971] 2 All ER 1156 at 1182

whether he foresaw them or not, and that if he scatters two-edged and ambiguous statements broadcast, without know-
ing or making inquiry about facts material to the statements he makes and the inferences which may be drawn from
them, he must be liable to persons who, knowing those facts, draw reasonable inferences from the words he pub-
lishes.'

There were called on behalf of the plaintiff six witnesses who had seen Miss Murray in the company of the
plaintiff and knew that she had been staying in his flat. They testified that on reading the article they under-
stood the words complained of as referring to the plaintiff in a defamatory sense. These witnesses were all,
so far as one can judge from the transcript of their evidence and from their occupations and positions, rea-
sonable men--ordinary sensible people. There is no indication to the contrary.

At the conclusion of the evidence called for the plaintiff, the defendants submitted that they had no case to
answer inasmuch as the words complained of could not reasonably be understood as referring to the plaintiff.
The judge ruled against this submission, holding that he was bound to do so by reason of a decision which
the Court of Appeal had given in interlocutory proceedings at an early stage of the action. At what may be
called the second round of the interlocutory proceedings, after the plaintiff had amended his statement of
claim and particulars, the defendants applied under RSC Ord 18, r 19 for an order that the amended state-
ment of claim and particulars be struck out as disclosing no reasonable cause of action. The application was
made on the ground that the words complained of could not reasonably be understood as referring to the
plaintiff even by persons with knowledge of the circumstances alleged in the particulars. The Court of Appeal
rejected the application, holding that the plaintiff's case, as appearing from the statement of claim and partic-
ulars, might have its difficulties but was not unarguable. The judge's view was that he was bound as a matter
of law by the Court of Appeal's decision in the interlocutory proceedings to hold at the conclusion of the plain-
tiff's evidence that the words complained of could reasonably be understood as referring to the plaintiff by
persons knowing the circumstances. In my opinion, that view was not correct in law. It has been established
by many authorities that the power to strike out a statement of claim as disclosing no reasonable cause of
action is a summary power which should be exercised only in plain and obvious cases: Drummond-Jackson
v British Medical Association ([1970] 1 All ER 1094 at 1100-1104, [1970] 1 WLR 688 at 695-697). Therefore,
from the mere decision of the Court of Appeal not to strike out the statement of claim nothing can be inferred
except that the plaintff's pleaded case was not plainly and obviously destined to fail--it was not unarguable.
There have been cases (referred to in Drummond-Jackson v British Medical Association ([1970] 1 All ER at
1098-1102, [1970] 1 WLR at 693-696)) in which an application under RSC Ord 18, r 19 raised a major ques-
tion of principle and this was decided by the Court of Appeal or your Lordships' House as the basis for decid-
ing that the plaintiff's pleaded claim was bound to fail. Equally a decision on a question of principle might
have been the basis for rejecting such an application. In such cases the ratio decidendi, the decision on the
question of principle, must have its due effect as settling the law on that question.
 Page 27

Before leaving Drummond-Jackson v British Medical Association ([1970] 1 All ER at 1104, [1970] 1 WLR at
699), I should point out that there was an error at the end of my judgment. At that stage I had already dealt
with the question of principle involved and was giving the reason for dismissing the application under RSC
Ord 18, r 19. What I said was '... the words complained of in the present case are capable of bearing a
meaning defamatory of the plaintiff ... ' That was going too far, making a decision that should have been left
to the trial judge. The correct formula would have been: 'It is arguable that the words complained of in the
present case are capable of bearing a meaning defamatory of the plaintiff.'

In the present case the Court of Appeal gave the correct, minimum decision in
[1971] 2 All ER 1156 at 1183

rejecting such an application--deciding only that the plaintiff's pleaded case was not unarguable. Therefore,
the question which the judge had to decide at the close of the evidence for the plaintiff--whether the words
complained of could reasonably be understood as referring to the plaintiff by persons knowing the circum-
stances--was not as a matter of law concluded by the decision of the Court of Appeal on the application un-
der RSC Ord 18, r 19.

Nevertheless the judge, if he had not considered himself bound by the Court of Appeal's decision, might still
have been influenced by this cogent passage in the judgment of Salmon LJ:
'We are not here considering which way the jury will decide. We are not here considering what the probabilities are. But
I think it is fair to observe that it may be that [counsel for the plaintiff] will say to the jury: "Well, dates in newspaper re-
ports are not always understood by the public as being completely accurate; anyone reading the report would think that
about this time there was some person on behalf of a gang who was trying to prevent this girl, who wanted to give evi-
dence against them, from giving evidence. Anyone who took that view of the article and who at about this time knew
that the plaintiff and the girl were living in the plaintiff's flat, who had seen him and the girl together morning, noon and
night, he giving her lunch and dinner day by day in various restaurants and always being in her company, and she be-
ing distraught and upset, might have said to themselves 'Why this must be one of the men who is trying to keep this girl
from giving evidence' or may have said to themselves, 'Perhaps he is a member or associate of this dog doping gang'."'

That was said by Salmon LJ with regard to the plaintiffs' case as pleaded. But by the time when the judge
had to give his decision the six witnesses had given their evidence on behalf of the plaintiff. It was open to
the jury to accept the evidence of those witnesses that they in fact understood the words as referring to the
plaintiff and conveying defamatory imputations. It was open to the jury to regard these witnesses as reason-
able men or ordinary sensible people. It was surely open to the jury to conclude that those witnesses were
acting reasonably when they understood the words as referring to the plaintiff.

In the judgment of du Parcq LJ in Newstead v London Express Newspaper Ltd there is a passage carefully
distinguishing between the respective functions of the judge and the jury in a libel case, and, though the is-
sue was not quite the same as here, I think the principle of what he said is applicable here. He said ([1939] 4
All ER at 329, 330, [1940] 1 KB at 394, 395):
'... there is a clear distinction between the question which a jury may have to answer and the preliminary question
which is for the court. The question for the court is, to adopt the language of LORD HALSBURY, L.C., in Nevill v. Fine
Art and General Insurance Co. ([1897] AC 68 at 76,77, [1895-99] All ER Rep 164 at 168), whether the words are " ...
susceptible of a libellous meaning in this sense, that a reasonable man could construe them unfavourably in such a
sense as to make some imputation upon the person complaining." If the judge holds the words to be susceptible of a
defamatory meaning in that sense, the jury are the constitutional tribunal to decide whether the words in fact have that
meaning. That is to say, it is for the jury to decide whether the reasonable man whom they may be supposed collec-
tively to typify would (not could) so construe them ... The judge must be careful not to answer in advance the question
which is properly for the jury, and to observe the limitation imposed upon his proper function by the law. 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.'
 Page 28

Although the functions of judge and jury are distinct, they are by no means unconnected. The judge has in
relation to matters of fact a regulatory function. The
[1971] 2 All ER 1156 at 1184

decision rests with the jury, and their decision is conclusive on any question of fact so long as there is evi-
dence on which their decision can be founded. The question for the judge in a case such as this is not some-
thing separate and independent from the question for the jury, but is whether there is evidence on which a
reasonable jury, properly directed and acting properly, could give an answer in favour of the plaintiff.

In my opinion, this case could not properly have been withdrawn from the jury, and the defendant's submis-
sion, made at the close of the evidence for the plaintiff, was rightly rejected, though I do not agree with the
judge's view that he was bound by the previous decision of the Court of Appeal.

The Court of Appeal held ([1970] 2 All ER 544, [1970] 1 WLR 820) that the case should have been withdrawn
from the jury substantially on two grounds: (1) that the reasonable man must be envisaged as reading the ar-
ticle carefully so that the discrepancies between 'last week' and the the week before last and between the
'house in Finchley' and the plaintiff's flat situate in Cricklewood on the borders of the Finchley Road area (to-
gether with the fact, which must be assumed to be known to the reasonable man, that Miss Murray had not
been confined in the plaintiff's flat but was seen with him in public places) would prevent the reasonable man
from reading the article as referring to the plaintiff, and (2) that in order to be defamatory of the plaintiff the
article itself must contain some key or pointer indicating that it refers to the plaintiff and there was no such
key or pointer in this case.

As to the first ground, I do not think the reasonable man--who can also be described as an ordinary sensible
man--should be envisaged as reading this article carefully. Regard should be had to the character of the arti-
cle: it is vague, sensational and allusive; it is evidently designed for entertainment rather than instruction or
accurate information. The ordinary, sensible man, if he read the article at all, would be likely to skim through
it casually and not to give it concentrated attention or a second reading. It is no part of his work to read this
article, nor does he have to base any practical decision on what he reads there. The relevant impression is
that which would be conveyed to an ordinary sensible man (in this case having knowledge of the relevant cir-
cumstances) reading the article casually and not expecting a high degree of accuracy.

As to the second ground, I think it is right to say that, in order to be defamatory of the plaintiff, the article must
contain something which, to the mind of a reader with knowledge of the relevant circumstances, contains
defamatory imputations and points to the plaintiff as the person defamed. But this article was plainly defama-
tory and as it referred to the dog-doping girl Miss Murray as having been kidnapped and kept in a house in
Finchley 'last week' it could be interpreted as referring to the plaintiff because that same girl, Miss Murray,
had in the week before last been staying in his flat on the borders of the Finchley Road area and constantly
in his company and evidently in a state of distress. It is rather a thin case for the plaintiff, but not in my view
one which should have been withdrawn from the jury. The jury's verdict on liability should not be set aside.

The judge's summing-up on the question of liability has been attacked on the ground that he paid too much
attention to the credibility and accuracy of the witnesses and not enough to the question whether the words
would reasonably be understood as referring to the plaintiff. In my opinion, this attack fails. In this connection
the principal passage in the summing-up was as follows:
'So, if you have got such readers and there are proved facts of things which had in fact been occurring--if you accept
that those things had been occurring--and those people are reasonable and they read the article in "The Sun", then the
question is for you. Would they as reasonable men identify [the plaintiff] as the person referred to in the article? The
fact that six of them have come along and said "We did so identify him"--they are not trying the case, they are not sit-
ting on the jury--is only evidence, if you think they are reasonable people, of what other reasonable people might have
done. It is only evidence for you,

[1971] 2 All ER 1156 at 1185

 Page 29

you have seen and heard them, as to whether this be right. Therefore of course it is important for you to assess what
sort of people they are, and whether they are telling you the truth about this. Do not put from your minds that it is possi-
ble for people to cook a case and for someone to come along and say it referred to him and see if he could get some
money out of the newspaper. But no one suggested that about any of these six men. Inaccurate they may have been
said to be on some matters, and we will look at their evidence in due course. Thus it is that one arrives at the proposi-
tion: Would some readers knowing some or all of the circumstances reasonably understand that it was [the plaintiff]
who was being referred to? That, members of the jury, is the correct approach. As I say, and as I repeat, the fact that
some people have come and told you that they did so read is only evidence which you have got to weigh up along with
other evidence which we will look at, including the article itself, in applying your minds to the question--Would some
readers knowing some or all of the circumstances reasonably understand that it was [the plaintiff] who was being re-
ferred to?'

That passage, expressed in a way that the jury would readily understand, contains the essential directions as
to the nature of the question to be determined and the bearing on it of the witnesses' evidence and the con-
sequent importance of assessing their credibility and accuracy. I do not think it has been shown that there
was any fault in the summing-up so far as it related to the question of liability, which was the main question in
the action and is the main question in this appeal.

On the other hand, the question of damages was reached at the end of a long summing-up, and was treated
shortly and, in my view, did not sufficiently explain the points in favour of the defence. Certain matters of ag-
gravation were mentioned. One of them was the absence of an apology. But I do not think an apology or dis-
claimer or explanation published in the newspaper would necessarily have helped the plaintiff, because the
thought of a possible connection between this article and the plaintiff' would have been brought to the minds
of readers to whom no such thought had occurred. A letter from the newspaper to the plaintiff, which could
have been shown to his friends and neighbours, would have been better, but it does not appear that the
plaintiff ever asked for such a letter.

The important matters of mitigation were not mentioned. This was by no means the ordinary case of a
defamatory newspaper article where the defamation reaches the minds of hundreds of thousands or some-
times millions of readers. The article would be understood as referring to the plaintiff only by a small and, so
to speak, esoteric circle of friends and neighbours who knew the relevant circumstances. Secondly, the arti-
cle was vague, sensational and elusive in its character. Reasonable readers having the knowledge of the cir-
cumstances and identifying the plaintiff as the person defamed would probably not feel very sure of their
identification nor very sure of the reliability of the defamatory statements or inferences. One of the witnesses
thought that the accusation of kidnapping was aimed at the plaintiff but that it was rubbish. Thirdly, the un-
favourable impression created in the minds of some readers was likely to be soon dispelled. Two of the wit-
nesses promptly asked the plaintiff whether he was associated with dog-doping or kidnapping and they ac-
cepted his assurances that he was not. Others would observe that the police took no action against the plain-
tiff.

I think the sum of damages awarded, £4,750, was inordinately large being out of proportion to any damage
which the plaintiff can reasonably be supposed to have suffered. I would allow the appeal and restore the
verdict and judgment in favour of the plaintiff on the issue of liability, but I would direct a new trial on the is-
sue as to the quantum of damages.

Appeal allowed on the issue of liability, but a new trial ordered as to quantum of damages.

Solicitors: Oswald Hickson, Collier & Co (for the plaintiff); Simmons & Simmons (for the defendants).

S A Hatteea Esq Barrister.