THE ASSOCIATED NEWSPAPERS OF CEYLON LTD., Appellant and DR. GUY DE SILVA, Respon

026-NLR-NLR-V-63-THE-ASSOCIATED-NEWSPAPERS-OF-CEYLON-LTD.-Appellant-and-DR.-GUY-DE-SILVA-Respon.pdf


SANSONI, J.—Associated Newspapers of Ceylon Ltd. v. Guy de Silva
145
1960Present:Sansoni, J., and H. N. G. Fernando, J.THE ASSOCIATED NEWSPAPERS OF CEYLON LTD., Appellant,and DR. GUY DE SILVA, Respondent
S. C. 223 and 232—D. C. Colombo, 42945/M
Defamation—Publication of contents of pleadings filed in pending civil proceedings—Defence of privilege—Scope.
Privilege attaches to the publication of documents placed before the Judgein open Court in judicial proceedings, though the contents of the documentsare not read out. Accordingly, the publication, before the trial, of the contentsof the plaint and answer filed in an action is privileged.
jpPRAL from a judgment of the District Court, Colombo.
H. V. Perera, Q.C., with G. T. Samaravnckreme and D. R. P. Goone-tiUeke, for Defendant-Appellant in S. C. 223 and for Defendant-Respondent in S. C. 232.
U.W. Jayewardene, Q.C., with P. N. Wikramanayake, for Plaintiff-Respondent in S. C. 223 and for Plaintiff-Appellant in S. C. 232.
Cur. adv. vult.
November 22, 1960. Sansoni, J.—
The plaintiff sued to recover a sum of Rs. 50,000 from the defendantas damages arising from the publication of four articles in the SundayObserver of 10th November, 1957, and the Thinakaran of 11th November,1957. All four articles refer to the plaintiff being the co-respondent in adivorce action filed in the District Court of Panadura. That actionwas filed on 12th June, 1957 ; answer was not filed by the wife althoughshe was served with summons, but an answer was filed by the presentplaintiff on 15th October, 1957, and on that day the trial was fixed for31st January, 1958. The present plaintiff in that answer denied thecharge of adultery made against him, and asked for the dismissal of theaction. The four articles in question correctly set out the contents of theplaint and the answer filed in the divorce action, and mentioned that thecase had been fixed for trial on 31st January, 1958. Each article had aheadline which read “ Doctor cited in Divorce Suit
The defendant in its answer admitted the publication of the articlesin question and pleaded that such publication was privileged because (1)they were fair and accurate reports of judicial proceedings, and (2) theywere in respect of matters which the defendant had a duty or interestto communicate to the readers of its newspapers, and its readers had aninterest in knowing.
7—Lxin
2—J, N. n J.9456—2,033 (9/61)
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SANSONT, J.—Associated Newspapers of Ceylon Ltd. v. Quy de Silva
When the ease came up for trial, the plaintiff’s counsel suggested thefollowing issues :
Are (a) the headlines,
the articles,defamatory of the plaintiff ?
To what damages will the plaintiff be entitled ?
The defendant’s counsel suggested issues based on the defence of privilegeraised in the answer. It will be noted that no issue raising the questionof malice was suggested by the plaintiff’s counsel.
The only evidence called was that of the plaintiff’s proctor whoproduced the articles in question, and through him were also producedthe plaint, answer, and journal entries in the divorce action.
The learned District Judge held that the publication of the articles inquestion was not privileged because the publication of the contents ofthe pleadings before the trial commenced was not covered by privilege.He awarded the plaintiff Rs. 1,000 as damages and the defendant hasappealed.
“ The rule of law is that, where there are judicial proceedings before aproperly constituted judicial tribunal exercising its jurisdiction in opencourt, then the publication without malice of a fair and accurate report ofwhat takes place before that tribunal is privileged ”, said Lord Esher,M.R., in Kimber v. The Press Association x. Although it was suggestedbefore us that the articles in question were not a fair and accurate reportbecause .of the headlines, I see no substance in this contention. Theplaintiff was a doctor and the headlines, “ Doctor cited in Divorce Suit ”,are perfectly accurate.
I shall deal with some other incidental questions raised by Mr. Jaye-wardene before I consider what seems to me to be the main questionarising on this appeal. It was urged that as the article first appearedon the front page of the Sunday Observer, the defendant w7as giving itundue publicity. I see nothing in this complaint : in later editions thesame articles occupied less prominent positions, as one w7ould expect.Nor do I read anything sinister into the delay between the filing of theansw7er and the publication of the articles. Another submission was thatthe evidence of the reporter or the Editor of the defendant’s newspapershould have been led to show how a copy of the pleadings in questionwas obtained : it was suggested that some malicious person had thesepleadings published in order to appeal to the idle curiosity or the desirefor gossip on the part of the readers of the newspapers. In the absenceof an issue suggesting that the publication was malicious, the defendantneed only show . that the articles were a fair and accurate report ofjudicial proceedings which took place in open court. The circumstances 1
1 (1892) 1 Q. B. 65.
SANSONI, J.—-Associated Newspapers of Ceylon Ltd. v. day de Silva
147
then create the privilege, and it was not necessary for the defendant tolead evidence to rebat a suggestion of malice which was never raised in theissues. Where a report is privileged, it does not matter whether thenewspaper reporter was himself present in Court or not: so long as hisfacts are accurate, and correotly set out what actually happened in Court,the source of his information is irrelevant.
The question for decision thus boils down to this : Are the articles apublication of judicial proceedings which took place in open court ? Indeciding this question one must bo careful to distinguish what takes placein open court and before the Judge, from what takes place, say, beforean officer of the Court in his office. It is also necessary to bear in mindthat, under our procedure, every action of regular procedure must beinstituted by presenting a plaint, which will be filed of record only if theCourt entertains it. When it has been so entertained by the Court andfiled, the Court orders a summons to issue to the defendant. Whenthe defendant appears in answer to the summons either in person or byproctor, he does so in open Court. If he does not admit the plaintiff’sclaim, he or his proctor must deliver to the Court a written answer,which the Court may reject or return for amendment if it is defective ;if it is accepted by the Court, the case is fixed for trial, and such an orderis again a judicial order.
In considering whether the publication of pleadings before the trial isprivileged or not, it would be wrong to be guided blindly by decidedcases from other countries, where a procedure which is quite, differentfrom ours may obtain. I do not know what the English procedure is.We were told that in England an action is commenced by the issue of awrit of summons which is endorsed with a statement of the nature of theclaim made ; and that after such a writ has been served on the defendanthe delivers his defence ; and that these steps in the procedure do not takeplace either before the Judge or in open court. In Rex v. Astor1, Scrutton, J.said that newspapers ought not to publish in full the private proceed-ings before the case came on for trial, and he instanced a statement ofclaim, an affidavit, and a writ. In no sense can it be said that the enter-taining of a plaint, the ordering of a summons to issue, the filing of ananswer, and the fixing of a case for trial under our procedure, are privateproceedings : they are all steps in a judicial proceeding : and certainlythe filing of the answer and the fixing of the case for trial are proceedingswhich take place in open Court.
Mr. Jayewardene also referred us to the Scottish case of Richardson v.Wilson 2, which was a case filed in consequence of defamatory statementsmade in a summons in another action. It was held by the Court ofSession that a summons which has been called in Court, but upon whichno other step of procedure has followed, is not a public document, andany person who publishes defamatory statements contained in it is liableto an action of damages. But the judgments show that “ calling a 1
1 {1913) 30 T. L. R. 10.
* {1879) 7 R. 237.
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SANSONI, J.—Associated Newspapers of Ceylon Ltd. v. Guy de Silva
summons ” merely means that the summons is placed in the hands of anofficer of the Court, called the Clerk of the process, who had a duty notto part with it or to give access to it except to the parties or their agents.The Lord Ordinary pointed out in his judgment that nothing occurs inCourt at this stage, and what was published was not a report of judicialprocedure but the contents of a writ which were at the time evenunknown to the Court. When the case went up in appeal, the Lord Presi-dent said that whatever takes place in open Court, either before or afterthe proper hearing of a case, falls under the rule that the publication bynewspapers of what takes place in Court at the hearing of a cause isundoubtedly lawful. The principle on which the rule is founded was that“ as Courts of Justice are open to the public, anything that takes placebefore a Judge or Judges is thereby necessarily and legitimately madepublic, and being once made legitimately public property, may be re-published without inferring any responsibility ”. He then went on tosay that the defender was seeking to apply the rule to what did not falleither within the rule itself or the principle on which the rule was founded.No discussion or proceedings had taken place before a Judge, and sinceno newspaper reporter or any member of the public could have obtainedaccess legitimately to the summons, it must have been obtained in anillegitimate manner. In these circumstances the publication in questionwas obviously not the publication of proceedings which were eitherjudicial or which had taken place in open Court.
In Abt. v. Registrar of Supreme, Court1, the question considered waswhether a stranger to a suit was entitled as of right to inspect the pleadingsin the Registrar’s office before judgment has been pronounced. Theapplication was refused on the ground that the case may never come intoCourt and, therefore, did not concern the public. The case is similarto the Scottish case, in that it tinned on the point that the case had notreached the stage of being dealt with in open Court. A similar case isthat of Transvaal Chronicle v. Roberts 2 in which damages were claimedfrom a newspaper which published defamatory statements which ahusband made about his wife in his affidavit answering to an applicationfor alimony. The affidavit was filed in the Court Registrar’s office,and the case was never called in open Court because the application waswithdrawn. De Villiers, J.P. held that the publication was not privi-leged. He cited with approval a dictum of Mason, J. in Kingswell v.Robinson 3 : “I have no doubt that the publication of documents filedin pending civil proceedings, and not brought up in open Court, is notprivileged, apart from some privileged occasion, such as some specialpublic interest in the information which they contain ”. Having saidthat the privilege attaches only to matters which have iranspired in openCourt, the learned Judge, in considering what falls within the rule, saidthat “ documents which have not been actually read, but to which counsel
* ( 1899) 16 S. C. 476.* (1915).T. P. D. 188.
* (1913) W. L. D. 129.
SAJE7SONT, J.—Associated Newspapers of Ceylon Ltd. v. Ouy de Silva
149
have referred or which have been used in the course of the proceedings,and which are necessary for a proper understanding, of the case ” arewithin the spirit of the rule. Bristowe, J. who agreed*%ith De Villiers,
J.P. said that while the public had a right to read fair and properreports of the proceedings of Courts of Justice, it is a very different thingto say that a newspaper reporter has a right of access to any of therecords of the Court where the matter has not come before the Courtat all. Where a matter has never been brought into Court, it seemed tohim undesirable and not in the public interest to publish affidavits whichhave never been used. But he also said that so far as matters that occurin Court are concerned, a reporter ought to know what occurred there,and he was at liberty to report all particulars appearing on the recordwhich may be necessary to explain what actually occurred in the Court.
King swell v. Robinson 1 was an action for damages based on the publica-tion of a defamatory letter which was referred to in certain affidavitsfiled in a prosecution for criminal libel. The letter itself, althoughit was referred to in the affidavits, was never produced before the Magis-trate, nor was it read or referred to in any proceedings which took placebefore the Magistrate. A newspaper reporter obtained a copy of theletter from the solicitors and published its contents along with a reportof the other proceedings. In the course of his judgment holding thatthe publication of the letter was not privileged, Mason, J. said that theprinciple that everyone is entitled to publish a fair account of judicialproceedings in open Court embraced the right “ to give all such informa-tion as may be necessary to enable the public to comprehend the courseand result of those proceedings. In Courts of law judges and counselfrequently refer to documents which they have perused, but which arenot read aloud. So far as these documents are used in the course ofproceedings or constitute a ground for discussion or decision, a newspaperis, in my opinion, entitled in ordinary circumstances to publish theircontents as fully as if they had been read aloud and reported verbatim. ”But he held that this rule did not apply to records which are filed in legalproceedings, but which have not yet been discussed or referred toin public. The reason is that in the one case the proceedings and therelevant documents come before the public in open Court, while in theother case there is no proceeding in open Court and the documents are inno sense made public because the stage of publicity has not been reached,and even though it be a judicial proceeding it is not a proceeding in openCourt to which the rule applied. All the cases I have discussed so farrelate to the publication of documents referred to or filed in legalproceedings, but not dealt with in open Court. They are, therefore,not applicable to the facts of the present case.
The rule that allows publication applies, however, to documents which,even though they are not read aloud in open Court, can be taken as read.The present appeal, in my view, relates to such documents. The District
1 (1913) W. L. D- 129.
2*J. X. R 19456 (9/61)
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SANSONI, J.—Associated Newspapers of Ceylon Ltd. v. Guy de Silva
Judge sitting in open Court had the case called in order that the answermight be filed and the case fixed for trial. It is true that the plaint andthe answer would not have been read aloud in Court, but any reporterwho was present would certainly have known that the trial was to takeplace upon the pleadings filed before the Judge. He was, in my opinion,entitled to report the contents of those pleadings, because they formedthe subject of a judicial order made in open Court fixing the case for trialupon those pleadings, and they were necessary to a proper understandingof the case.
An analogous case arose with regard to a charge sheet handed in openCourt to a Magistrate, which contained particulars of the charge, but tothe contents of which no verbal reference was made. I refer to the caseof Kavauxxgh v. Argus Printing and Publishing Company x. It was heldthat where a charge sheet was handed to the Magistrate, sitting in openCourt, for his information, that was tantamount to reading it. It wastaken as read and, therefore, anyone reporting the actual proceedingsin Court was entitled to incorporate in his report the contents of thecharge sheet including the particulars of the charge. Distinguishing thecase of Kingswell v. Robinson 2, Millin, J. said that while the defamatoryletter in that case was never placed before the Magistrate, or in any waytaken as read or seen by him, in the case he was deciding it was necessarythat the Magistrate should be informed of the charge, and he actuallydid see the charge because it was handed to him. He said : “ It washanded to him for that purpose at any rate …. if the contentsof the document are not deemed to be part of the proceedings in Courtwhen handed to the Magistrate for his information then it is a secretdocument, a secret communication between the prosecutor and theMagistrate, a view which need only be stated to be rejected. ”
This decision, to which Mr. H. V. Perera drew our attention, seems tome to cover the facts of the case we have to decide, and it shows quiteclearly that privilege attaches to the publication of judicial proceedingsin open Court where documents are placed before the Judge, thoughtheir contents are not read out. I hold that the articles in question wereprivileged as being fair and accurate reports of judicial proceedings heldin open Court, and the plaintiff’s action should have been dismissed onthis ground.
The appeal of the defendant is allowed with costs in both Courts.The cross-appeal of the plaintiff on the question of damages is dismissed.
H. N. G. Fernando, J.—I agree.
Appeal allowed.Cross-appeal dismissed.
1 (1939) W. L. D. 284.
* (1913) W. L. D. 129.