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Cite as: [1944] AC 116, [1944] AC 196, [1944] UKHL 1

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    Die Lunae, 3° Aprilis, 1944

    Parliamentary Archives,



    The Lord Chancellor



    Lord Atkin


    Russell of


    It is an essential element of the cause of action for defamation that
    the words complained of should be published " of the plaintiff ". If
    the words are not so published, the plaintiff is not defamed and
    cannot have any right to ask that the defendant should be held
    responsible to him in respect of them. In the case now before us
    the learned trial Judge, Mr. Justice Stable, decided that the words
    of the libel did refer to the plaintiff. The Court of Appeal, con-
    sisting of Lord Justice MacKinnon and Lord Justice Goddard,
    decided that the words could not be regarded as referring to the
    plaintiff, and consequently allowed the appeal and dismissed the
    action. This is the issue which we now have to decide.

    The Defendants printed and published in their newspaper on July
    ist, 1941, the words following, which are set out in the Statement of
    Claim: —

    " But the quislings on whom Hitler flatters himself he can
    " build a pro-German movement within the Soviet Union are
    " an émigré group called Mlado Russ or Young Russia.

    " They are a minute body professing a pure Fascist ideology
    " who have long sought a suitable fuehrer—I know with what
    " success. Established in France and the United States they
    " claim to have secret agents able to enter or leave the Soviet
    " Union at will.

    " Hitler intends to nominate a puppet fuehrer from their
    " ranks to replace the Soviet national leaders of the Kremlin,
    " and establish a reactionary totalitarian serf State on the
    " German and Italian model.

    " The proposed line of operation is the seducing of Red Army
    " officers from their allegiance to their country and with their
    " aid destroying trade unions, co-operatives, collective farms,
    " and the Soviet Parliamentary system with a ruthless massacre
    " of all the present leaders, great and small, of the Russian
    " people.

    " The vast majority of Russian émigrés repudiate these
    " people, but Hitler is accustomed to find instruments among
    " the despised dregs of every community. He intends Ukrainian
    " pogroms as a starting point for general anarchy in Russia."

    In these words there is no specific mention of the Plaintiff from
    beginning to end, and the only countries in which it is stated that
    this group of émigrés is established are France and the United
    States. Evidence was given at the trial that the Plaintiff had joined
    the Young Russia Party in 1928, that in 1935 he became Assistant
    Representative of the Young Russia Movement in Great Britain,
    and that in 1938 he was appointed Representative of the Movement
    in Great Britain and head of the British Branch of the Movement.
    The headquarters of the Movement were in Paris until June 1940
    when they were removed to America.

    These facts standing alone, however, do not justify the con-
    clusion that the words complained of are capable of being read
    as a defamation of the Plaintiff. The words make allegations
    of a defamatory character about a body of persons—some thou-
    sands in number—who belong to a Society whose members are
    to be found in many countries. In O'Brien v. Eason [1913] 47
    Irish L.T. 266, Holmes L.J. and Cherry L.J. ruled that where com-
    ments of an alleged defamatory character were made upon an

    34592 A

    2 [2]

    association called the Ancient Order of Hibernians, an individual
    member of the Order, who was not named nor in any way referred
    to, could not maintain an action of libel. They referred to a well
    known dictum of Willes J., uttered more than 50 years before, in
    Eastwood v. Holmes [1858 ]I F. & F. at p. 349 that " if a man wrote
    " that all lawyers were thieves, no particular lawyer could sue him
    " unless there is something to point to the particular individual".
    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 referred to. There are cases in which
    the language used in reference to a limited class may be reasonably
    understood to refer to every member of the class, in which case
    every member may have a cause of action. A good example is
    Browne v. Thomson & Co. 1912 S.C. 359, where a newspaper
    article stated that in Queenstown instructions were issued " by the
    "Roman Catholic religious authorities that all Protestant shop
    " assistants were to be discharged ", and where 7 pursuers who
    averred that they were the sole persons who exercised religious
    authority in name and on behalf of the Roman Catholic Church in
    Queenstown were held entitled to sue for libel as being individually
    defamed. Lord President Dunedin in that case said at p. 363, " I
    ' think it is quite evident that if a certain set of people are accused
    ' of having done something, and if such accusation is libellous, it is
    ' possible for the individuals in that set of people to show that they
    ' have been damnified, and it is right that they should have an
    ' opportunity of recovering damages as individuals." In the present
    case, however, the Appellant rejected the view that every member
    of the Young Russia Group could bring his own action on the words
    complained of, and relied on his own prominence or representa-
    tive character in the Movement as establishing that the words
    referred to himself. There is, however, nothing in the words which
    refers to one member of the Group rather than another. Le Fanu v.
    (1848)1 H.L.C. 637 was, it is true, a decision of this
    House in which Lord Chancellor Cottenham and Lord Campbell
    held that the verdict of a jury awarding damages to the owners of
    a factory in the County of Waterford against the proprietor of a
    newspaper published in that County could be upheld, notwithstand-
    ing that the letter-press in the course of denouncing the alleged
    cruelty with which factory operatives were treated did not specifi-
    cally refer to the Plaintiff's factory. It appears, however, in that
    case that there were circumstances, such as the location of the
    factory, which enabled the jurors to identify the Plaintiff's factory
    as the factory pointed at, and the Lord Chancellor observed at
    p. 664 that " if a party can publish a libel so framed as to describe
    " individuals, though not naming them, and not specifically de-
    " scribing them by any express form of words, but still so describ-
    " ing them that it is known who they are, as the jurors have found
    " it to be here, and if those who must be acquainted with the
    " circumstances connected with the party described may also come
    " to the same conclusion, and may have no doubt that the writer
    " of the libel intended to mean those individuals, it would be
    " opening a very wide door to defamation, if parties suffering all
    " the inconvenience of being libelled were not permitted to have
    " that protection which the law affords."

    It will be observed that Le Fanu v. Malcolmson was a case where
    there were facts pointing to the particular factory which was meant
    to be referred to though the article spoke in more general terms of
    a factory in Waterford. In the present case the statement com-
    plained of is not made concerning a particular individual, whether
    named or unnamed, but concerning a group of people spread over
    several countries and including considerable numbers. No facts
    were proved in evidence which could identify the plaintiff as the
    person individually referred to. Witnesses called for the Appellant

    [3] 3

    were asked the carefully framed question, "To whom did your
    " mind go when you read that article ? ", and they not unnaturally
    replied by pointing to the Appellant himself. But that is because
    they happened to know the Appellant as the leading member of
    the Society in this country, and not because there is anything in
    the article itself which ought to suggest even to his friends that he
    is referred to as an individual.

    There are two questions involved in the attempt to identify the
    Appellant as the person defamed. The first question is a question of
    law—can the article, having regard to its language, be regarded as
    capable of referring to the Appellant ? The second question is a
    question of fact, namely, does the article in fact lead reasonable
    people, who know the Appellant, to the conclusion that it does refer
    to him ? Unless the first question can be answered in favour of the
    Appellant, the second question does not arise, and where the Trial
    Judge went wrong was in treating evidence to support the identifica-
    tion in fact as governing the matter, when the first question is neces-
    sarily, as a matter of law, to be answered in the negative.

    I move that this appeal be dismissed.






    Russell of





    Lord Atkin


    I have read the opinion about to be delivered by my noble
    friend Lord Porter, and agree with it and with the proposed motion
    that the appeal be dismissed. I add a few words, however, for 1
    wish to emphasize the point that the judgments in the Court of
    Appeal appear to over-elaborate the law of libel as applicable
    to this case. I venture to think that it is a mistake to lay down a
    rule as to libel on a class, and then qualify it with exceptions. The
    only relevant rule is that in order to be actionable the defamatory
    words must be understood to be published of and concerning the
    Plaintiff. It is irrelevant that the words are published of two or
    more persons if they are proved to be published of him: and it
    is irrelevant that the two or more persons are called by some
    generic or class name. There can be no law that a defamatory
    statement made of a firm, or trustees, or the tenants of a particular
    building is not actionable, if the words would reasonably be under-
    stood as published of each member of the firm or each trustee or
    each tenant. The reason why a libel published of a large or in-
    determinate number of persons described by some general name
    generally fails to be actionable is the difficulty of establishing that
    the Plaintiff was in fact included in the defamatory statement: for
    the habit of making unfounded generalisations is ingrained in ill-
    educated or vulgar minds: or the words are occasionally intended
    to be a facetious exaggeration. Even in such cases words may be
    used which enable the Plaintiff to prove that the words complained
    of were intended to be published of each member of the group,
    or at any rate of himself. Too much attention has been paid, I
    venture to think, in the textbooks and elsewhere to the decision of
    Willes J. in 1858 in Eastwood v. Holmes, 1 F. & F. 347. It is a
    nisi prius decision in which the judge non-suited the Plaintiff both
    because he thought there was no evidence that the words were
    published of the Plaintiff, and for other reasons, and so far as the
    first ground is concerned it appears to me on the facts to be of
    doubtful correctness. His words, " it only reflects on a class of
    " persons " are irrelevant unless it means it does not reflect on the
    Plaintiff: and his instance " All lawyers are thieves " is an excellent
    instance of the vulgar generalisations to which I referred. It will
    be as well for the future for lawyers to concentrate on the question
    whether the words were published of the Plaintiff rather than on
    the question whether they were spoken of a class. I agree that
    in the present case the words complained of are apparently an
    unfounded generalisation conveying imputations of disgraceful
    conduct, but not such as could reasonably be understood to be
    spoken of the Plaintiff.

    It becomes unnecessary to deal with the question of excessive
    damages. I content myself by saying that if the libel had been
    published of the Plaintiff, while the damages awarded are possibly
    too high, I do not find myself in any degree in accord with the
    estimate of the damages suggested by the Court of Appeal.

    Lord Thankerton

    My Lords,

    I concur in the opinions which have just been delivered.






    Russell of




    sess. 1944— [H.L.]


    Lord Russell of Killowen



    I agree that this appeal fails.

    The crucial question in these cases in which an individual
    Plaintiff sues in respect of defamation of a class or group of in-
    dividuals is whether on their true construction the defamatory
    words were published of and concerning the individual Plaintiff.
    Unless this can be answered in the affirmative he has no cause of
    action. It is not, I think, the case of a denned primary rule, with
    defined exceptions to the rule. I would rather say that in every
    case it is the question indicated above.

    When the construction of the matter complained of comes under
    consideration, there may be something in the defamatory matter,
    or in the circumstances in which it is published, which indicates,
    and enables a jury to find, that particular individuals are defamed,
    although they are not named. The case of Le Fanu v. Malcolmson
    (1.H.L.C. 637) is an instance of this. Or the class or group can
    be identified, and is such that each member thereof is necessarily
    defamed. The case of Browne v. Thomson (1912, S.C. 359) is an
    instance of this. A body of trustees or directors would furnish
    another instance in which defamation of the body involves defama-
    tion of each member thereof.

    The present case, however, is far removed from these considera-
    tions. The newspaper article makes allegations about a body of
    persons, some thousands in number, established in France and the
    United States of America. It makes no reference of any kind to
    the Plaintiff or even to England. There is nothing in it which
    would enable anyone to identify any person as being a member
    of the body. All that can be said is that a person who read it and
    who knew that the Plaintiff was a member of the body would
    know that he was one of the numerous individuals from whose
    ranks Hitler hoped at some time to nominate a puppet fuehrer
    in Russia. Nothing more than that. That is really all that I can
    attribute as the meaning of the answers given by the Plaintiff's
    friends to the carefully worded and stereotyped question of the
    Plaintiff's Counsel, viz., " To whom did your mind go when you
    "read that article?"

    In my opinion it is impossible to construe the article in any
    way which would justify the view that it contained defamatory
    matter published of and concerning the Plaintiff.


    Lord Atkin



    Russell of


    KNUPFFER (pauper)




    This case raises once again the question which is commonly
    expressed in the form, " can an individual sue in respect of words
    which are defamatory of a body or class of persons generally?"

    The answer as a rule must be No! But the enquiry is really a
    wider one and is governed by no rule of thumb. The true question
    always is, was the individual or were the individuals bringing the
    action personally pointed to by the words complained of?

    Many of the earlier cases appear to have been concerned with
    words alleged to refer not to a class but to one or more out of a
    larger number of persons without, it was said, sufficiently indicating
    who was aimed at. The authorities quoted in argument in Le Fanu
    v. Malcolmson (1848) 1 H.L.C. 637 were of this type though in that
    case itself the defamatory words complained of, whilst they
    appeared to apply to a class, in reality were capable of being shown
    and were shown to be applicable to some of the individuals com-
    prising that class.

    No doubt it is true to say that a class cannot be defamed as
    a class nor can an individual be defamed by a general reference to
    the class to which he belongs. Willis J.'s well known words in
    Eastwood v. Holmes (1858) 1 F. & F. 347 sufficiently illustrate the
    point. Nevertheless the words or the words combined with the sur-
    rounding circumstances may be shown to refer to some person or
    persons individually. Le Fanu v. Malcolmson (supra) has already
    been quoted and Foxcroft v. Lacy (1620) Hobart 89 is an earlier
    example to the same effect. In each case a number of persons were
    involved but they sued, jointly or severally, as individuals because
    their identity was sufficiently ascertained.

    The question whether the words refer in fact to the Plaintiff
    or Plaintiffs is a matter for the jury or for a judge sitting as a judge
    of fact, but as a prior question it has always to be ascertained
    whether there is any evidence upon which a conclusion, that they
    do so refer, could reasonably be reached.

    In deciding this question the size of the class, the generality
    of the charge and the extravagance of the accusation may all be
    elements to be taken into consideration. But none of them is con-
    clusive. Each case must be considered according to its own circum-
    stances. I can imagine it being said that each member of a body,
    however large, was defamed where the libel consisted in the asser-
    tion that none of the members of a community was elected as a
    member unless he had committed a murder.

    Whatever the Tribunal the first question is, are the words in con-
    junction with the relevant circumstances reasonably capable of
    being understood to apply to the Plaintiff.

    In the present case that question must, I think, be answered in
    the negative.

    It is true that the Plaintiff Appellant was and is a member of
    a body upon which very grave reflections have been cast, that
    he is the representative of that body in England, and that there
    are only 24 members of it in this country. But the newspaper

    [7] 2

    article makes no reference to England; it confines itself to allega-
    tions about " a minute body " established in France and the United
    States. Minute no doubt its membership of 2,000 is when compared
    with the vast population of Russia, but in itself it forms a consider-
    able body. Out of that body there was nothing to point to the
    Plaintiff, nor indeed to any individual in this country.

    Nor do I think the Plaintiff's case is improved by the allegations
    of his friends that " their minds turned to " him when they read the
    article. Apart from the vagueness of the question, I can see no
    justification for an inference that he was the person aimed at. If
    it could be said, as it is conceded it could not, that each member
    of the body, wherever resident, could claim to be defamed, some
    case might be made on behalf of the Plaintiff as one of its members,
    but as the evidence stands I see nothing to point to him in contra-
    distinction to the rest. Indeed, inasmuch as he is a member of
    the English group he is the less likely to be referred to.

    I agree that the appeal should be dismissed.

    (34590) Wt. 8284—16 25 4/44 DL G.388

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