VAN CUYLENBERG v. CAPPER et al

060-NLR-NLR-V-12-VAN-CUYLENBERG-v.-CAPPER-et-al.pdf


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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood ltenton.
1909.July 31.
VAN CCYLENBERG v. CAPPER el at.
D. C., Colomfx), 24,477.Defamation—Innuendo—Words libellous per se—Pleas of justificationand lair comment—Particulars in support of the pleas—Interro-gatories—Question of fact decided by Judge without a jury—Function of an Appellate Court—Roman-Dutch Law of defamation—English Law—Damages—Costs.
Held, that in an action for defamation where the words arelibellous per se, no innuendo need be alleged or proved; where insuch a case an innuendo is alleged, but the innuendo so alleged is“ bad ” in law, the plaintiff is entitled to rely on the defamatory 'meaning of the words themselves in support of his action. Butwhere the words are not defamatory in themselves, and theplaintiff has attached to them a particular meaning by innuendoes,and fails to substantiate such innuendoes, his suit must fail.
Ramanathan v. Ferguson and another1 referred to and com-mented on.
Wood Renton J.—Where in an action for libel the defendantpleads both justification and fair comment, the plea of fair commentonly arises when the plea of justification has failed; and the two pleasshould be kept distinct in the mind of the Judge trying the case.
Dakhyl v. Labouchere* and Hunt v. Star Newspaper Co.*referred to.
Wood Renton J.—A defendant pleading justification and faircomment in an action for libel must give or should be compelled tpgive particulars on which he means to rely to substantiate his pleas.Arnold and Butler v. Bottomley and others * referred to.
The function of an Appellate Court dealing with questions offact decided by a Judge without a jury discussed.
T
HIS was an action for defamation. The plaintiff, who is aproctor of the Supreme Court and proprietor and editor-in-
chief of a newspaper called the “ Ceylon Independent,” claimedRs. 20,000 from thq defendants, the owner and the editor of anewspaper called the “ Times of Ceylon.” The libel complained ofappeared in the “ morning edition ” of that paper of January 5, 1907,in an article entitled “ From the Courts Venandah,” and signed by“ Outdoor Proctor.” The words are fully set out in the judgments.
The District Judge (J. Grenier, Esq.) dismissed-the plaintiff’saction with costs.
» {1884) 6 S. C. C. 89.* {1908) 2 K. B. 325 n.
{1908) 2 K. B. 309.
{1908) 2 K. B. 151.
I
VOL. XII.8
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1909.
July 31.
The plaintiff appealed.
Bawa (with him E. W. Jayewardene). for the plaintiff, appellant.KUiott (with him Hayley), for the defendants, respondents.
July 31, 1909. Hutchinson C.J.—
Cur. adv. vuit.
This is an action against the owner and editor of the “ Times ofCeylon ” for damages for a libel published in the “ morning edition ”of that paper on January 5, 1907. The District Court dismissedthe action.
The judgment, under appeal is that of a Judge who has had longand honourable service both as a District Judge and as an ActingJudge of this Court. It is a very able and perfectly fair and impartialjudgment, and I cannot see in it the least indication of any unjudicialtone or temper. The petition of appeal in criticising the judgmentuses language which is disrespectful to the Judge, and is whollyunjustifiable. I am surprised that it should have been signed bythe plaintiff’s proctor and three well-known advocates. T think weought to direct the Registrar to expunge from it the last sentencesof paragraphs 11 and 15 and the whole of paragraph 13. Mybrother Wood Renton agrees with me, and we so order accordingly.
Some of the learned Judge’s conclusions as to the alleged libellousstatements I either agree '.vith or accept, but I am sorry to say that' I cannot assent to all of them.
The first statement which I need specify is that w hich is headed“ B ” in the plaint. It says : “ If I had bought a doubtful claim ina doubtful way from a doubtful person and pressed it in a doubtfulmanner at Downing street, and had received doubtful eneduragement,I should feel distinctly doubtful- about ultimate success. Sodoubtful that, though I might fight it in Courts where it costs menothing, but editorial tergiversation, in the way of lawyers’ fees, Ishould hardly care to cross the seas with it, unless somebody else’smoney backed me and it.” Tliis the plaintiff says means that he,in a dishonourable and questionable manner, purchased from aperson of doubtful and bad repute a fictitious claim against theGovernment of the Island, and had further improperly employedillegitimate and dishonest means to obtain an official recognition ofsuch claim at the hand of His Majesty’s Secretary of State for theColonies.” It is proved that this statement refers to a purchase bythe plaintiff of what is called the Dehigama claim, which was aclaim brought by one Le Mesurier against the Government ofCeylon, and which the plaintiff had bought from the trustee in thebankruptcy of Le Mesurier. The innuendo which I have quoteddoes not refer specially to the words “ though 1 might fight it inCourts where it costs me nothing but editorial tergiversation in theway of lawyers’ fees.” The defendants in their answer deny that
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the words of the passages set out in the plaint bear the meaningsplaced on them in the piaint; and they say that the meanings of thewords of the said passages are plain and clear on the face thereof,and that the statements therein are true. The meaning of the wordsI have last quoted is plain and clear; they can only mean that thefighting in Court of the claim which he had bought cost the plaintiffno fees, but only editorial tergiversation.
A great deal of the plaintiff’s cross-examination was directed totliis question of “editorial tergiversation,” that is to say, it wasdirected to showing that he, as editor of his newspaper, the “ CeylonIndependent,” had on various occasions been guilty of tergiversation.And the plaintiff admitted that in the prosecution of the Dehigamaclaim in appeal in this Court he paid no fee to his counselMr. Dornhorst. But there is no evidence that there was any tergiver-sation which enabled him to avoid payment of any lawyers’ fees,or which had that for its object. This statement is on the face ofit defamatory, and upon the evidence it is certainly not true.
The defendants’ counsel contends that upon the issues. whichwere settled we must confine ourselves to the innuendoes ; that we-can only consider whether the statements complained of bear theinnuendoes attached to them in the plaint; and that as it is notalleged in the plaint that the statement as to fighting in Courts“ w'here it costs me nothing but editorial tergiversation in the wTayof lawyers’ fees,” has any particular meaning, we are debarred fromconsidering whether it is true or not. The plaintiff however says,in paragraph 3 of the plaint, that the statements complained of inthe article are false and malicious ; the defendants in their answersay that they are true ; and it appears to me that the issues cover,and were intended to cover, an inquiry w-hether the statementscomplained of, whether they had or had not the meanings attributedto them in the plaint, were defamatory of the plaintiff and false andmalicious.
A great deal of the cross-examination of the plaintiff was, as 1have said', directed to the question of his alleged “ tergiversation.”The Judge says, and I agree with liim, that the word as used inthis paragraph is capable of meaning that the plaintiff had at onetime attacked or criticised a person and had subsequently praisedthat person for purposes of his own, and thus saved lawyers’ feesin connection with the Dehigama litigation. He says that thedefendants asserted that both Mr. Dornhorst and Mr. CharlesPerera had at one time been vilified or abuseefin the columns of the“ Independent,” but that after the plaintiff had borrowed Rs. 2,000from each of them the attacks ceased, and thereafter both thesegentlemen were eulogized on several occasions. The Judge refersto attacks on Mr. Perera in the “ Independent ” from 1897 toFebruary, 1902, and specially to one in 1897, which charged Mr.Perera, who was then a member of the Colombo Municipal Council,
1909.
July SI.
HdT<-HINSON
C.J.
( 228 )
1909.with abettingsubordinate officials of the Council in extorting
July 31.blackmail; hecomments severely on the fact of the plaintiff
Hutchinsonborrowing Rs.2,000 in March, 1.903, from the man whom he had
J.thus attacked ;and he then refers to the fact that in May, 1903,
there appeared in the “ Independent ” an article very laudatory ofMr. Perera.
With regard to Mr. Dorhhorst, the last attack on him in the“ Independent ” was in January, 1900 ; after that there were noarticles or correspondence affecting him; the loans of Rs. 2,000 tothe plaintiff were in 1903 ; and the occasion when Mr. Pomliorstacted as counsel for the plaintiff without a fee -was in 1905. TheJudge does not find, and he could not have found, that there wasany justification for the suggestion that the plaintiff saved thepayment of the fee by his tergiversation. He finds, however,“ that as regards the cases of Mr. Perera and Mr. Pomhorst, thecharge,” that is, of tergiversation, “ has been reasonably mode out,and that the factor which influenced the plaintiff in.his conduct wasthe loan of Rs. 2,000 which each of them gave him, and which stillremains unpaid.’'
I think it is impossible to support this finding as regards Mr.Dornhorst; I can find no evidence to justify it. And as regardsMr. Perera, it is founded mainly on the fact that attacks had beenmade on him in the “ Independent ” up to February, 1902, and thatin May, 1903, two months after the loan, an article very laudatoryof him appeared in the same paper. To my mind that would notbe enough to justify the finding, if there were nothing more. Butthere is something more ; there is the fact that the article of May,1903, was published whilst the plaintiff was in England, and thatthe editor of the paper swears that he did not know until this actionwas . commenced that the plaintiff had borrowed money from Mr.Perera, and that the plaintiff never asked him to change his attitudetowards, or influenced him in his criticism of, Mr. Perera, and thatthey never even discussed the subject. I cannot think that thelearned Judge’s opinion as to the plaintiff’s conduct towards Mr.Perera is warranted by the evidence.
“ Tergiversation,” like “ turncoat,” “ traitor,” and many otherwords of that kind, is a term of abuse, but not necessarily defamatory.Every man whose opinions are worth anything “ tergiversates ”sometimes quite honestly ; upon learning some fresh facts, or seeingthe old ones in a different light, he goes through the process whichhe calls changing his mind, but which, if the question on which hehas done so is one of public interest, and he is a man who takes partin public affairs, his enemies call by some of these opprobrious names.But although it may not be defamatory to charge a newspapereditor with tergiversation, I must say that I think it defamatory tosuggest that he was guilty of it for the purpose of getting a lawyerto act for him without fee. That suggestion is made in the
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article of which the plaintiff complains, and it was altogether 1909unfounded.July 31.
The next paragraph of which the plaintiff complains ends with Hutchiksonthese words : “ To do that I should have to acquire almost as C.J.much wisdom as is needed to keep a newspaper running with no otherhelp than much dishonesty and a good deal of impudent insolence 1a sharp pair of scissors, and a vast quantity of paste.” Theplaintiff says in his plaint that this means that he had conductedhis newspaper in a dishonest manner. The learned District Judgedoes not refer to this, except by his general finding that theinnuendoes charged by the plaintiff cannot be justified on a fair andreasonable construction of the article complained of. ' It seems tome, however, to be beyond dispute that the words of that paragraphdo bear the meaning which the plaint says they bear. And surely itis defamatory of a newspaper proprietor and editor to say of himthat he runs his paper “ with much dishonesty.” And the Judge hasnot found, and the evidence would not have justified him in finding,that the statement is true. The appellant’s counsel, however, saythat the “dishonesty” spoken of is only the dishonesty of appro-priating without leave or acknowledgment items of news or othermatter from other papers, or the use of “ scissors and paste,” andthat the Judge so understood it, and I think that the Judge diddid so understand it. See pages 310 to 312 of the judgment. Ishould not have taken it to mean no more than that. But I do notthink it is an impossible construction; the defendants in their answersay that the words do not bear the meaning which the plaintiff puton them, and I think we must accept the Judge’s finding, whichis not expressed but implied, that the words do not charge theplaintiff with conducting his paper with any dishonesty, except thedishonesty of taking over paragraphs from other papers and in-serting them in his. And there is evidence of that kind of dishonestyin the article put in evidence, which appeared in the plaintiff'spaper on June 17, 1901, which contains the following paragraph :
“ The impudent plagiarism in which our contemporary has for yearsbeen engaged, coupled with the barefaced way in which the sourcewhence he obtained such news has been concealed, led to theinstitution of a system of reciprocity in this office, against whichthe editor expends his fruitless kicks, and this is the true explana-tion of the only single instance of commandeering cited in therecent screed. Some London news of undoubted interest to ourreaders did appear in our columns without acknowledgment. An.acknowledgment was inserted by a member of our staff in mistake.
It was fortunately, however, detected in time, and corrected in proof.
We have simply treated the ‘ Times ’ as it has treated us.” It istrue that this article was not written by the plaintiff but by theeditor, Mr. Coates; but the plaintiff, the owner of the paper, who-was in Ceylon at that time, must take the responsibility of the
)
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1909.
July 31.
EtUTOHINSON
C.J.
views expressed in it. The article complained of ends with thesewords: “ It is quite time that we learn to say what we think. Todo so is the kindest thing one can do to those of onr champions, whoare deficient in rectitude as they are in rupees.” The plaint saysthat this means' that the plaintiff was a man devoid of honour andintegrity of character. The learned Judge finds that it was nodoubt a direct reference to the plaintiff, but that the defendantshad not exceeded the bounds, as public journalists, of fair andbona fide- comment upon the plaintiff’s conduct as a public man inrelation to matters of public interest, and that the whole of thearticle complained of was printed and published bona fide and with-out malice, and for the benefit of the public and not otherwise. Heheld also that there are no words in the article which are libellousin themselves, and that no malice has been proved. To me itseems plain that the imputation that the plaintiff is deficient inboth rectitude and rupees is libellous in itself ; the words hav e themeaning which is attributed to them in the plaint, and. as thedefendants say in their answer, their meaning is plain and clear onthe face of them. Are they true or are they false ? The Judge doesnot say that it is proved that the plaintiff is deficient in rectitude;he rather seems to think that the words were written in jest. Icannot think so. They seem to me to have been written in seriousearnestness ; and the defendants assert that they are true, and havetried to justify them. There is no adequate evidence to supporta finding of dishonest “ tergiversation ” with regard to eitherMr. Domhorst or Mr. C. Perera, or the Pearl Fisheries Lease, or ofanything dishonourable about the purchase of the Dehigama claim.The District Judge finds that if the meanings attributed in theplaint to paragraphs F and G of the impugned article are admissible.the truth of the statements contained in them has been established,that is, he finds that it is true that the plaintiff, being in indigentcircumstances (in December, 1906), had promoted public meetingsin order to obtain a sum of Rs. 5,000 to enable him to eke out anexistence. The only evidence which I can see of his being in indigentcircumstances in December, 1906, is that in March, 1903, the daybefore his departure to England, he borrowed certain sums amount-ing to Rs. 11,000 from Mr. Doi'nhorst and Mr. C. Perera and others,secured by a mortgage at 7 per cent, interest, oil which aboutRs. 3,000 was still owing at the date of the trial, and that one of thelenders, Mr. Ratnasabapat 1 ty. sued him for his Rs. 2,000 in March,1906, and got judgment and issued a writ against him for it inJanuary, 1907, when the debt was paid. And, on the other hand,there is the plaintiff’s evidence in cross-examination (page 134),which, if true, shows that he was by no means indigent. The stingof the statement in paragraph F, however, is the suggestion that hepromoted public meetings in order to obtain Rs. 5,000, which sumhe tried to raise by starting what is called in the article the “ Rupee
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•
Fond.” This fond was started by a circular letter datedr-December 1909.
24, 1906, by Mr. de Kretser and Mr. Abeyewardene, informing the 31.
persons to whom it was sent that it was proposed to present a Hutchinson
testimonial to the “ Independent ” for the signal service rendered C J-
to the Ceylon public by its disinterested and powerful advocacy of
the public interests; subscriptions limited to one rupee. The District
Judge finds that the idea of starting the Rupee Fund originated with
Mr. Abeyewardene, a proctor for whom he has much regard; the
fund would be for the benefit of the plaintiff;.Mr. Abeyewardene
was not called on to give his evidence as to the circumstances under
which be issued the circular; and there was evidence from which
the Judge might fairly infer, as in fact he did, that'the plaintiff
“ knew all about it.” But it is a long way from that to the inference
that he promoted public meetings in order to raise that fund. I
cannot think that a “ deficiency in rectitude ” can fairly be inferred
from this affair of the “Rupee Fund.” And I cannot find anywhere
in the evidence any justification for the charge of want of rectitude.
In considering whether we ought to aecept or reject the finding ofthe District Judge on questions of fact, we have to inquire whetherthere is any evidence to support the finding, or, if there is someevidence, whether the finding is one which could fairly and reason-ably be arrived at upon the evidence. It is only if we answereither of these questions in the negative that we ought to refuseto accept his decision.
In ray opinion the suggestion that it cost the plaintiff nothinghut editorial tergiversation in the way of lawyers' fees to fight theDehigama claim in the Courts of Ceylon is defamatory ; and thereis no evidence that it is true. The suggestion that he is deficientin rectitude is also defamatory, and there is no adequate evidenceto justify a finding that it is true. Neither of these suggestions canbe said tc be fair and bona fide comments on matters of publicinterest, and I find them to be malicious. I am therefore of opinion. that the judgment of the District Court ought to have been in favourof the plaintiff. As to the amount of damages, I am not convincedthat the plaintiff has suffered any pecuniary loss in consequence ofthe libel on him ; and Iris counsel says that Iris object in bringing theaction was not to put money into his pocket, but to vindicate hischaracter. I do not think, therefore, that it is a case for givinghea vy damages. We need not send the case back to the DistrictCourt for the purpose of fixing the amount: we have all the materialswhich the District Court would have for that purpose. I wouldallow (he appeal, and give judgment for the plaintiff for Rs. 1,000damages and the costs of the action and of this appeal.
Wood Renton J.—
I desire to associate myself with every word that has fallen frommy lord the Chief Justice in regard to the impropriety of many of
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' 1909 the comments made in the petition of appeal on the learned DistrictJuly SI. Judge of Colombo—a Judge enjoying the high esteem of everyWoOD colleague who has had the privilege of working along with him onRenton J. the Bench, and every line of whose decision in the present case showsthe care and anxiety with which he had approached its determination.We have, however, to consider the case on its merits, apart from ‘the language of the petition of appeal. Mr. Elliott urged us, in hisargument on behalf of the respondents, to apply a principle, which,he contended, had been laid down by the Privy Council in the caseof the Australian Newspaper Company v. Bennett,* and according towhich a Court of Appeal is only justified in reversing the findingof a jury if the verdict is one at which reasonable men could not• arrive. There are English decisions (see Colonial Securities TrustCo., Ltd. v. Massey and others 2 and Coghlan v. Cumberland ®) inwhich the duty of an appellate tribunal, when it has to deal withcases tried by a Judge without a jury, is defined in somewhatdifferent terms. But these decisions turn to a great extent on thespecial rules of English practice (see R. S. C. 0. 58,4), under whichthe Court of Appeal in England is expressly empowered to draw'inferences of fact and to give any judgment and make any order,which ought to have been made in the Court, below. There can beno doubt, however, but that it is mainly in regard to the credibilityof witnesses that the appellate tribunals in England have declinedto interfere with the results of trials in Courts of first instance, andthat they have reserved to themselves full liberty to consider whetherthe inferences drawn by a Judge of first instance from truthfulevidence are, or are not, warranted. In this connection T may referagain to the language used by Lord Halsbury, L.C., on this verypoint in the case of Montgomerie <& Co., Ltd., v. Wallace-James,*a case in which the House of Lords over-ruled two concurrent judg-ments of the Courts in Scotland on a question of fact. Withoutin any way attempting to decide the question whether, and howfar, an appeal to the Supreme Court in Ceylon is a re-hearing, orto throw' any doubt on the settled jurisprudence of this Court inregard to the weight due to the findings of a Judge of first instanceon all questions as to the credibility of witnesses, 1 think that weare entitled, and bound, to consider how far the facts of a casejustify the inferences that are drawn from them. Moreover, where,as in the case before us, the trial Judge has first to direct himselfas to the law, and then apply his direction to the facts, both theterms of the direction and the effect that it mar probably havehad upon the findings of fact have to be carefully taken account of.
The present action is one of defamation, and, except on one or twopoints, which I will note immediately in passing, the English andthe .Homan-Dutch laws on the subject, in so far as the latter is here
1 (1X94) A. C. 2X4.'» (1X98) 1 Chancery 704.
* (1896) 1 Q. B. 38.* (1904) A. C. 75.
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involved, appear to be practically identical. The plaintiff has toshow that the alleged defamatory statements were made, thatthey refer to him, that they are libellous either per ae or in theirspecial application to himself, and that they were made falsely andmaliciously. The publication of a defamatory statement is primdfacie evidence of malice in the absence of privilege. If these factaprobanda are established by the plaintiff, the burden of proofshifts to' the defendant. He may meet the case against him byalleging and satisfying the Court-that the statements in question
do not refer to the plaintiff, or (b) are not defamatory eitherin themselves or in their special reference to the plaintiff, or (c)although defamatory, are true in substance and in fact, and also—a point on which, in regard to civil proceedings, the Roman-Dutchlaw has gone a step further than the law of England—thattheir publication was for the public- benefit (see Durusamy v.FergusonJ), or (d) although defamatory and not justifiable arebona fide and fair comment on facts which ..are proved, and thediscussion of which is in the public interest, ft would appearthat, unlike English law, the pure Roman-Dutch law did notrecognize inuendoes (Nathan, III., a. 1574). But both in SouthAfrica (Villiera, Roman and Roman-Dutch Law of Injuries, p. 14)and in this Colony the practice of inserting innuendoes in theplaintiff’s statement of claim, or plaint, in libel actions has beenadopted. In the commencement of his judgment in the presentaction (p. 26/204) the learned District Judge makes use of thefollowing language : “ If, of course, the innuendoes charged bythe plaintiff are not reasonably justified by the words complainedof, they must be struck out as bad in law, and the plaintiff’s actionmust fail.” That is, admittedly, not the law- of England; and,with all deference, I am not prepared to assent to the view that itis the law of Ceylon. It is clear, I think, that by English law, ifthe jury find that the alleged defamatory statement does not conveythe meaning assigned to it in the innuendo, the plaintiff’s actiondoes not necessarily fail. He cannot, indeed, in the middle of a case,discard the innuendo in his pleading, and start a fresh one, whichis not on the record. But he is entitled to abandon the innuendopleaded, to fall back upon the words themselves, and to urge that,taken in their natural and obvious signification, without the aid ofhis unproved innuendo, they are defamatory and actionable, andthat, therefore, Iris unproved innuendo may be rejected as surplusage(see Simmons v. Mitchell,2 Fisher v. Nation Newspaper Co.3). It isonly where the jury negative the innuendo and the w'ords are notactionable in their natural and primary sense that judgment mustpass for the defendant (Rremridge v. Latimer *). i
i (1879) Browne Ajyp. D. pp. viii. et teq.* {1880) 6 A. O. 156.
19 ; 2
1909.
July 31,
WoodRenton J.
(1901) 2 Ir. B. 465.
(1864) 12 W. R, 878.
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1909. In support of the view that these rules of law are not in force inJuly 31. Ceylon, we were referred by Mr. Elliott to the case of Ramanathan v.
WoODFerguson and another.1 I have called for the record in that case (D.C.,
Rehton j. Colombo, No. 89,360) in order to see what the precise point was thatarose for actual decision. The plaintiff in his libel first set .out thealleged defamatory matter, and then attached to it certain specificinnuendoes. The defendant pleaded to the innuendoes so stated. Atthe trial the learned District Judge held that the words in question werenot capable of bearing the meanings which the plaintiff had assignedto them, but that they were capable of bearing other defamatorymeanings, which had not been referred to in the pleadings, and whichthe defendants had had no opportunity of contesting at the trial.He gave judgment accordingly in favour of the plaintiff in respectof the defamatory matter, as he himself had interpreted it after thetrial had closed. In appeal the Supreme Court set his judgmentaside on the obvious and, if I may say so, proper ground that it wasnot competent for the District Judge to give judgment for theplaintiff by attaching to the publication in question defamatorymeanings of which the plaintiff had not complained, and of which hehad given no proof. So far as I can see that was the only point thathad to be decided in the case of Ramanathan v. Ferguson and another.*But Chief Justice Burnside, who delivered the judgment of the Courtin that case, the other Judge being Mr, Justice Dias, took occasion toexpress the view that the practice in Ceylon in regard to innuendoesmust be held to follow that of the English Courts prior to theCommon Law Procedure Act, 1852 (s. 61), and he held that, underthe old English practice, where an innuendo wras bad, it might berejected, and the plaintiff might rely on the libellous meaningapparent on the face of the publication, but that, when it was good,the plaintiff must be bound by it, and fail in his suit if he did notestablish his innuendo by proof. I w'ould point out tnat even ifChief Justice Burnside’s language on this point is anything morethan obiter dictum, it would not support the argument which Mr.Elliott based on it, inasmuch as the finding of the learned DistrictJudge in the present case is that the statements complained of arenot capable in law of bearing the meanings which the plaintiff hasassigned to them. The innuendoes, that is to say, are not “ good,”but unproved, but “ bad and it would, therefore, have been opento the appellant, even under the English practice prior to 1852,to have claimed that they should be rejected as surplusage, and tohave fallen back on the contention that they were defamatory per se.The cases cited by Chief Justice Burnside (Harvey v. French 2 andWilliams v. Stott 3) are conclusive on that point, and I may furtherrefer in the same connection to the judgment of Mr. Justice Black-bum in Watkin v. Hall.* On these authorities it appears to me that
1 (1884) 6 S. O. O. 89.»(1833) Cr. and M. 67$.
* (1832) 1 Or. and M. 11.* (1868) L. R. 3 Q. B. 396 at p. 401.
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even if the innuendoes assigned by the appellant are “ bad ” in thesense above explained, he is still entitled, tinder the law oi thisColony, to rely on the contention that the statements complainedof are defamatory on the face of them.
Before proceeding to deal with the facts of the case, it may bedesirable to point out that, where a defendant in an action for libelpleads both justification and fair comment, those two issues mustbe kept distinct in the mind of.the Judge, or of the Judge and jury,trying the case, and that the issue of fair comment only ariseswhere the plea of justification has failed. In recent English cases(see Dakhyl v. Labouchere1 and Hunt v. Star Newspaper (7o.a) theverdicts of juries have been set aside because the Judge whodirected the jury had not placed that distinction clearly before them.The development and present state of the law of England on thesubject are explained by the Court of Appeal in Walker <& Sons v.Hodgson,® where all the authorities, from Campbell v. Spotliswoode4down to Hunt v. Star Newspaper Co. (vhi sup.), are examined.
I come now to deal with the facts. The appellant, who is aproctor of the Supreme Court and the proprietor and editor-in-ebief of the “ Ceylon Independent,” complains of the publicationby the defendants, the proprietors and publishers of the “ Times ofCeylon,” in a morning edition, now no longer published, of theirpaper, of an article entitled “ From the Courts Verandah.” Thearticle was signed Outdoor Proctor.” The learned District Judgesays that, admittedly, neither of the respondents wrote it. I do notsee any such admission on the record. But the point is immaterial.For the identity of the writer has not been disclosed, and therespondents have accepted, both by the terms of their answerand by their attitude throughout these proceedings, full responsi-bility for its publication. The appellant selects eight paragraphs,numbered from A to H in the article in question, and alleges thatthese contain seven distinct libels, to each of which he attaches aninnuendo. Paragraph A comprises three headings : “ The RupeeTestimonial Fund,'-" “The Hat Trick,” and “ A Breakfast TableProblem.” I do not propose to quote the actual language used.It has been found by the District Judge—-and this observationapplies to all the alleged libels—to refer to the appellant. Theinnuendo attached to it in the plaint is in substance that the appellantwas a rogue and a designing wirepuller; that lie had hypocriticallyorganized public meetings posing as “ the champion ” of the people’sliberties, but in reality seeking “ pecuniary gain ” for himself inorder to enable him to prosecute his claim in the’Dehigama case,to which reference will have to be made presently. The respondentsin their answer met this part, and every other part, of the appellant’scase by a defence, .which seems to fall under five heads : (I) That
'(1908) 2 K. B. 325 n.*(1909) 1 K. B. 239.
*(1908) 2 K. B. 309.* (1863) 3 B. and S. 769.
1909.
July 31.
WoodRenton J.
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1909.
July 31.
.Wood,Renton J.
the innuendoes were bad; (2) that tbe publication of the mattercomplained of was not false and malicious ; (3) that the appellanthad suffered no damage; (4) that the meaning of the alleged libel“ was plain and clear on the face thereof, and that the statementstherein are true in substance and in fact, and that their publicationwas for the public good” ; (5) that the circulation of the lists inconnection with the Rupee Fund w as a mattor of public interestand that “ the writer of the contribution aforesaid, having reason tobelieve that the circulation of the said subscription papers had theencouragement and secret support of those for whose benefit theywere intended, made reference to and denounced such improperconduct on their part, and showed by allusion to facts, appearingin the passages cited by the appellant,” that they were unworthy‘ ‘ of the aid for which the public was appealed to, by means of the saidsubscription papers.” The plea concluded by setting up a defenceof fair comment. I can only express my respectful amazement thatthe two last of these defences should have been allowed by theappellant to stand unchallenged on the record. It is the clear dutyof a litigant, who alleges justification, to give particulars of thestatements that he means to justify (see Arnold and, Butler v.Bottomley and others1). This duty was specially important in a caselike the present, where the innuendoes were denied. It is much tobe regretted that the respondents were not at once compelled, eitherby an application for an amendment of their answer or by interro-gatories, to discharge it. This observation applies with even greaterforce to the plea of fair comment. In effect that plea asserts that thewriter of the alleged libel had “ reason to believe ” that there hadbeen “ improper conduct ” on the part of “ those for whose benefit ”the subscription list were intended, and that he had shown “ byallusion to facts appearing in the passages cited ” by the appellant“ that they were unworthy of the aid ” for which they asked. Whowere the parties referred to ? What was the “ improper conduct ”imputed to them ? What “ reason ” had the writer of the article to“ believe ” in its existence ? Surely these were all matters thatought to have been settled in limine. But we must take the easenow as we find it. It appears to me that the plea of fair commentin this case is one of fair comment in the proper sense of the term.That is to say, the respondents—in the event of the failure of theirplea of justification—must be taken to have admitted that theallegations in the libel as^to the Rupee Fund were defamatory ofsome persons unnamed, and to have pleaded that, by virtue of“ facts ” appearing in the article, they had not exceeded the boundsof bona fide and fair comment on a matter of public interest. It isalmost needless to say that pleas of justification and fair commentmust be made out by the litigant who relies on them, and that, inorder to establish the former plea, iri particular, the actual statement* (1908) 2 K. B. 151.
( 237 )
made, and not some other statement, even if it is equally libellous,must in substance be justified. The case went to trial on six issues,as to the meaning of some of which there was not a little discussionat the argument of the appeal:—
Did the various passages from the article cited in the
plaint support the innuendoes alleged and refer to theappellant ?
Did the statements themselves refer to the appellant, and
were they defamatory of him ?
Were these statements false and malicious '!
Justification.
Fair comment.
Damages.
It w as urged by Mr. Elliott, not as speaking from any recollectionof his own as to what had transpired at the trial in the District Court,but as an inference from the language of the learned. Judge himself,that the appellant had in the Court below accepted the positionthat the statements in the article here in question were notdefamatory per se. and had elected to stand or fall by the innuen-does. No trace of any admission to this effect is to be found in thejournal entries or in the Judge’s notes of the evidence, but Mr.Elliot relied on two passages in the judgment in support of hiscontention : “ Now it appears to me,” says the learned Judge(p. 25/202), “ that the plaintiff’s (appellant’s) case is that there are nowords in the article complained of which are defamatory in tbeirordinary signification,” and again (p. 31/348), “ as I have alreadystated, there are no words in this publication which are libellousin themselves.” Testing Mr. Elliott’s argument on the mattersolely by intrinsic criteria, I have great difficulty in accepting it.I can scarcely believe either that the appellant’s legal advisersshould have made such a damaging admission, or that, if made,the Judge should not have both expressly recorded it in hisnotes and dealt with it in terms in his judgment in language of atotally different character from that which he actually employed.The words “ it appears,” in the first of the two passages abovecited, indicate, I think, that he was paraphrasing the appellant’scase as he understood it from the pleadings, and not as it had beenput before him by any formal admission at the trial. Moreover, ifMr. Elliott’s contention were well-founded, there would have beenno need for the learned Judge to discuss, as be does, the pleas ofjustification and fair comment. He holds in effect that the innu°endoes are bad in law ; and as ex hypothesi the appellant’s case hadbeen staked on their sufficiency ; all that he had to do was to dismissit. I may further point- out that, in regard to one of the most seriousof the alleged libels, the charge of “ editorial tergiversation in theway of -lawyers’ fees,” there is no innuendo, and yet -both aides
1909.
JiHy 31-
WoodRenton J.
( 238 )
dealt with it at the trial, and it is also noticed in the judgment.Mr. Elliott invited us to consult the learned District Judge himselfas to whether or not the admission in question was made. I do notthink that it would be right to do so. The alleged admission iscontested by the appellant’s counsel. No direct evidence of anykind of its existence is to be found in the record. The balanceof probabilities on the materials before us tells heavily against it.Under these circumstances I cio not think that the appellantshould be deprived of whatever legal right he possesses to rely onthe ordinary meaning of the alleged defamatory statement, if theinnuendoes fail. I have thought it best at the very outset of myobservations on the facts to state once for all what 1 understandthe line of defence and the real issues between the parties to be.
I will now deal with the alleged libels in turn as briefly as possible.In regard to the statements grouped under paragraph A, the learnedDistrict Judge has held (p. 26/241) as follows.:—(1) “ That theinnuendoes as charged by the plaintiff cannot in law' be attnbutedto the statements in question ; (2) that the statements complainedof were not published falsely and maliciously with intent to defamethe plaintiff ; (3) that they were fair an.d bona fide comments uponmatters of public interest, and were printed and published withoutmalice, and for the benefit of the public.” There is here no expressfinding on the plea of justification, and no reference is made to thecurious form in w'hich the defence of fair comment was pleaded.But in view of the shape in which the appellant allowed the caseto go to trial, I should not be prepared to interfere with the decisionof the District Court in regard to this paragraph. Paragraph B—“ to dispel doubts ’’—relates to the Dehigama claim. The learnedDistrict Judge holds in effect (pp. 27-30/242-3121 (i.) that thestatements contained in it are not libellous per se : (ii.) that, sc faras the Dehigama case is concerned, the appellant’s conduct, althoughvery ambitious, wras throughout honest and free from all suspicion ;(iii.) that his appearance, however, in that case, as plaintiff againstthe Government, while holding the office of Crown Proctor, wouldcertainly seem to the outside world a very anomalous one ; (iv.) thatthe innuendo assigned in the plaint to that part of the paragraphwhich relates to the Dehigama claim, and which speaks of hishaving acquired that claim in “ a doubtful way,” is bad in law;(v.) that the words were written bona fide and as fair comment onmatters of public interest; and (vi.) that the charge of “ editorialtergiversation,” with which paragraph B concludes, had beenjustified by the evidence elicited, or produced, at the trial withreference to the relations between the appellant on the one handand Mr. Domborst and the late Mr. Charles Perera- on the other.
I am unable to follow' the learned District Judge in these findings,- in so far as they are adverse to the appellant. I think that to say• of a litigant, who is at once a proctor and a journalist, that he has
1909.
July Sl
Wood .Renton J.
( 239 )
acquired a doubtful claim in “ a doubtful way.” and that he baa beenguilty of “ editorial tergiversation ” in order to enable him toprosecute that claim without having to pay “ lawyers’ fees,” isdefamatory on the face of it. The innuendo attached to the formerof these allegations—for, as 1 have already pointed out, no innuendois assigned to the latter—seems to me to be good in law, and I donot think that there is any evidence on the record—with whichalone we are here concerned—that can justify a plea of fair comment.The article does not say that the appellant had acquired theDehigama claim in a way that to the outside world might appearanomalous, or, for that matter, “ doubtful.” It asserts as a factthat the claim had been so acquired. There is nothing, so far as Ican see, in the evidence that made that assertion a fair comment.Certainly the observation attributed to Sir Charles Layard C. J. onthe appellant’s application to be made substituted plaintift in theDehigama case (D 83,107/4281, in view of the attitude assumed bythe Crown on that occasion, does not supply a basis for that plea.I hold that, in regard to this portion of paragraph B, the appellantought to have had judgment entered in his favour. He was,I think, still more clearly entitled to succeed on the charge of“ editorial tergiversation.” Although this charge, as I have alreadysaid, was not made the subject of a special innuendo, its meaningwas well understood by both sides at the trial. The suggestionwas that, whereas the appellant had at one time, in his capacity ofeditor of the “ Ceylon Independent,” attacked Mr. Dornhorst ashis bitterest enemy, he had abandoned this attitude in order tosecure Mr. Domhorst’s services gratuitously as his advocate on theargument of the appeal in the Dehigama case here in the SupremeCourt. The respondents endeavoured to justify the charge byshowing that the appellant had in fact changed the policy of hispaper towards both Mr. Dornhorst and Mr. Charles Perera as aconsequence of a loan made to him by each of these gentlemen in1003. The learned District Judge holds that the charge has been“ reasonably made out.” With the greatest respect, even if it hadbeen established, the fact would not amount to a justification ofthe libel of which the appellant complains, viz., that he had beenguilty of “ editorial tergiversation ” towards Mr. Dornhorst in orderto secure his appearance without a fee in the Supreme Court in theDehigama appeal. As the Chief Justice has shown, there has beenno evidence in justification of that libel, and the appellant has aright to judgment in respect of it. But I agree also with the ChiefJustice, and I cannot usefully add anything to the reasons that hehas given for his conclusion, that, even as regards the loans to theappellant by Mr. Dornhorst and Mr. Charles Perera, the learnedDistrict Judge’s finding, is not warranted by the evidence.
As regards the words “ much dishonesty ” in paragraph C, Ishould not myself have understood them as involving only a charge
1909.
July 31.
WoodRenton 3.
1909.
July 31
WoodBenton J.
( 240 )
of plagiarism. But I cannot say that there is no evidence justifyinga finding to that effect. Paragraphs D to G, both inclusive, derivetheir importance from the manner in which they have been utilizedby the respondents to support the allegation in paragraph H, thatthe appellant—for he is clearly referred to—is as “ deficient inrectitude ” as in rupees. The w ay was prepared for this argumentby the special plea of fair comment, which I have already cited inertenso—a plea that ought to have been at once either struck outas embarrassing, or reduced to precision by amendment or dis-covery. The finding of the learned District Judge on paragraph His as follows :—“ Judged in the light in which the case has presenteditself to me as a jury, and giving the word ‘ rectitude ’ its realmeaning, which is correctness of principle or integrity, it seems tome that the defendants (respondents) have not exceeded the boundsas public journalists of bona fide comment upon the plaintiff’s(appellant’s) conduct as a public man in relation to matters ofpublic interest , and that the whole of the article complained oi wasprinted and published bona fide, and without malice, and for thebenefit of the public, and not otherwise.”
The learned Judge does not hold that the charge of “ deficiencyin rectitude ” has been justified, and I am not satisfied that the legalrelation of the plea of .justification to that of fair comment couldhave been clearly before his mind when he recorded the findingsabove cited. He merely finds, if I understand him aright, that thefacts of the case make an imputation of “ deficiency in rectitude ”fair comment. 1 cannot agree. I will not go through the variouspoints in detail.’ I adopt in regard to each of them the reasoningand the conclusion of the Chief Justice, and 1 concur in the judgmentthat he has proposed.
Appeal allowed with costs; Rs. 1,000 awarded as damages.
,i
August 4, 1909.—
A question having arisen as to the class in which costs were to betaxed, the Chief Justice (Wood Renton J. agreeing) ordered thatcosts be taxed in the class in wrhich the action was brought.