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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Cassell & Co Ltd v Broome (No 1) [1972] UKHL 3 (23 February 1972)
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Cite as: [1972] 2 WLR 645, [1972] UKHL 3, [1972] AC 1027

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JISCBAILII_CASE_TORT
JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    Die Mercurii, 23° Februarii 1972

    Parliamentary Archives,
    HL/PO/JU/4/3/1220

    HOUSE OF LORDS

    CASSELL & COMPANY LIMITED

    v.
    BROOME and Another

    Lord Chancellor Lord Reid
    Lord Morris of Borth-y-Gest
    Viscount Dilhorne
    Lord Wilberforce
    Lord Diplock
    Lord Kilbrandon


    Lord Chancellor

    my lords,

    NATURE OF THE PROCEEDINGS

    This appeal arises out of two consolidated actions for libel on the publica-
    tion of a book. The first action was in respect of the 60 proof copies of the
    book, the second in respect of the principal or hard back edition of the book.
    We were told that there are separate proceedings still pending in respect of
    a paper back edition, published under licence by separate publishers. This
    paper back edition was mentioned at all stages in the proceedings as being
    potentially relevant to the question of damages. The House is not otherwise
    concerned with it.

    The plaintiff in the action (the first Respondent to this appeal) is a retired
    Captain in the Royal Navy of unblemished reputation, who, at the time of
    the matters referred to in the book, held the rank of Commander, and
    occupied the responsible position of Officer Commanding the escorts in the
    ill-fated convoy P.Q.17. He held active command throughout the war, and
    ended his wartime naval career with his present rank of Captain in command
    of the battleship Ramillies. The subject matter of the book, and its title, was
    " The destruction of Convoy PQ17 " which, as is well known, was one of the
    great naval disasters of the war, in which all but 11 out of over 35 merchant
    vessels were sunk on their way to the Soviet Union and about 153 merchant
    seamen killed by enemy action and a vast quantity of war material lost.

    The defendants in the action were respectively the author of the book,
    David Irving, who is the second Respondent in the appeal, and was not
    represented before us, and the publishers of the book, Cassell & Co. Ltd.,
    who are the Appellants.

    THE RESULT OF THE TRIAL

    The trial of the action took, we were told, 17 days before Lawton J. and
    a jury. In the result, on the 17th February, 1970, the jury found a verdict
    for the plaintiff and awarded against both defendants (1) the sum of £1,000
    in respect of publication of the proof copies of the book, Counsel for the
    plaintiff having waived any claim to exemplary damages on the proof
    copies, (2) £14,000 described as "compensatory damages" in respect of the
    hard back edition, and, (3) in respect of the hard back edition a further
    sum of £25,000, described as " by way of exemplary damages ". Judgment
    was entered for the sum of £40,000 against both defendants. The present
    appeal relates solely to the above sum awarded " by way of exemplary
    " damages " of £25,000.

    So far as relevant to this appeal, the entire proceedings before Lawton J.
    were conducted by all the counsel concerned and summed up by the judge
    to the jury on the basis of the remarks of Lord Devlin on pages 1220-1233
    of the report of Rookes v. Barnard (
    [1964] AC 1129), and of the direction
    following Lord Devlin's remarks by Widgery J. in Manson v. Associated
    Newspapers Ltd.
    [1965] 1 W.L.R. 1038. This was not surprising since all
    the other members of the House of Lords had expressly concurred in Lord
    Devlin's opinion on this point, though without adding reasons of their own,
    and the opinion in Rookes v. Barnard which was strictly an intimidation
    case, though obviously intended to apply generally, had been expressly
    applied to defamation proceedings by the Court of Appeal in McCarey v.
    Associated Newspapers Ltd.
    [1965] 2 Q.B. 86, by Pearson, Willmer and
    Diplock L.J.J.; in Broadway Approvals Ltd. v. Odhams Press Ltd. [1965]

    A

    2

    1 W.L.R. 805, by Sellers, Davies and Russell L.J.J.; in Fielding v. Variety
    Incorporated
    [1967] 2 Q.B. 841, by Lord Denning, M.R. and Harman and
    Salmon L.J.J.; and in Mafo v. Adams [19701 1 Q.B. 548, a case of deceit
    and other causes of action, the principles enunciated in Rookes v. Barnard
    were accepted as applicable where the evidence justified it by Sachs and
    Widgery L.J.J. and Plowman, J.

    Except for two important passages and one minor passage of which com-
    plaint is made, and to which I will come later, Lawton J's direction to the
    jury was unexceptionable as an exposition of the law as it has been declared
    in the House of Lords by an unanimous House in Rookes v. Barnard and
    applied by the Master of the Rolls and ten Lords Justices and one puisne
    judge in the above cases in the Court of Appeal and as it had been expounded
    by Widgery J. in his direction to the jury in Manson v. Associated News-
    papers Ltd.

    THE APPEAL TO THE COURT OF APPEAL

    At the end of the seventeen day trial the costs of the proceedings which,
    as between party and party, followed the event, must have already been
    enormous. Both Defendants accepted the verdict on liability. The defendant
    Irving appealed on all the damages awarded. The present Appellants
    appealed on the award of £25,000 " by way of exemplary damages ". The
    appeal lasted nine days before the Court of Appeal (Denning M.R., and
    Salmon and Phillimore L.J.J.) and judgment was given on the 4th March,
    1971, dismissing both appeals with costs, which must by this time, with
    the costs of the trial, even on a party and party basis, have greatly exceeded
    the amount of the award. Before the Appellate Committee of this House
    the appeal lusted thirteen working days, thus again greatly increasing the
    sum at stake, though by this time the Respondent Irving had given up the
    struggle.

    JUDGMENT OF THE COURT OF APPEAL

    The Court of Appeal took a somewhat unusual course. On the view which
    they formed of the matter, which, as will appear, I have come to share though
    with greater hesitation than they expressed, they were for dismissing the
    appeal on the grounds that the criticisms of the direction by Lawton J. failed,
    and that the mere size of the award was not one which, on accepted principles,
    could be attacked. If they had stopped there, it is possible, and perhaps
    likely, that the proceedings would have come to an end. It is doubtful if
    leave to appeal to this House would have been given, and if it had not, the
    two remaining parties would have been spared the costs of the thirteen
    days' hearing in Your Lordships House. Even if leave to appeal had been
    given in the above circumstances a great deal of the time occupied before us
    would have been saved.

    But the Court of Appeal did not stop at dismissing the appeal on these
    grounds. Whether or not they were encouraged by the zeal of plantiffs'
    counsel, they put in the forefront of their judgments the view that Rookes v.
    Barnard was wrongly decided by the House of Lords and was not binding
    even on the Court of Appeal. It was, so they said, arrived at per incuriam,
    and without argument from counsel. It ignored, they claimed, two previous
    decisions in the House of Lords, Ley v. Hamilton (1935) 153 L.T.R. 384 and
    E. Hulton & Co. v. Jones [1910] A.C. 20, which had approved awards of
    punitive or exemplary damages on lines inconsistent with Lord Devlin's
    opinion in Rookes v. Barnard. They felt themselves fortified in this view
    with the somewhat cool reception in the Commonwealth of Rookes v.
    Barnard, particularly in the Australian Supreme Court decision in Uren v.
    John Fairfax and Sons Pty. Ltd. [1967] A.L.R. 25 which had been affirmed
    so far as regards Australian law by the Judicial Committee of the Privy
    Council in the associated case of Australian Consolidated Press Ltd. v.
    Uren [1969] 1 A.C. 590. Neither Denning M.R. nor Salmon L.J. seem to
    have been in any way inhibited or embarrassed by the fact that each had
    been party to at least one of the decisions of the Court of Appeal applying
    Rookes v. Barnard without question. Not content with all this, all three

    3

    Members of the Court of Appeal went further still and, besides declaring
    Rookes v. Barnard to have been decided per incuriam and ultra vires, pro-
    ceeded to say that it was " unworkable ". and, in the meantime, therefore,
    " judges should direct juries in accordance with the Law as it was understood
    " before Rookes v. Barnard " which the Court considered, to use the phrase
    of the Master of the Rolls, as " settled ".

    As sent to us by the Court of Appeal, therefore, the appeal before us
    raised several questions of wide ranging importance. Quite apart from the
    merits of the respective litigants, these questions include the status of
    judgments and the relevance of precedent in this House, the circumstances,
    when, if at all, decisions of this House may be questioned by the Court of
    Appeal, and judges of first instance directed by the Court of Appeal to
    disregard them. There is also the whole question of exemplary damages as
    canvassed in Rookes v. Barnard and subsequent decisions. What began as a
    simple proceeding between a plaintiff and two defendants has assumed, at the
    expense of two of the litigants, the dimensions of a consitutional question
    and a general enquiry into one aspect (and perhaps more than one aspect)
    of the law of damages.

    THE COURSE TAKEN BY THE COURT OF APPEAL

    In view of their importance it is unavoidable that before entering into the
    merits of the appeal I should discuss in a few paragraphs both the propriety
    and the desirability of the course taken by the Court of Appeal. I desire to
    do so briefly and with studied moderation.

    From the point of view of the litigants it is obvious, I would have
    thought, that, on the view taken by the Court of Appeal, the course taken
    was unnecessary. Private litigants have been put to immense expense, of
    which most must be borne by the loser, discussing broad issues of law
    unnecessary for the disposal of their dispute.

    If the Court of Appeal felt, as they were well entitled to do, that in the
    light of the Australian and other Commonwealth decisions Rookes v.
    Barnard ought to be looked at again by the House of Lords, either generally
    or under the Practice Declaration of 1966 [1966] 1 W.L.R. 1234, they were
    perfectly at liberty to say so. More, they could have suggested that so
    soon as a case at first instance arose in which the ratio decidendi of Rookes
    v. Barnard was unavoidably involved, the parties concerned might wish to
    make use of the so-called "leap-frogging" procedure now available to
    them under the Administration of Justice Act, 1969, and thus avoid one
    stage in our three-tier system of appeals. But to impose on these litigants,
    to whom the question was, on the Court's view, unnecessary, the inevitable
    burden of further costs after all they had been through up to date was not,
    in my view defensible.

    Moreover, it is necessary to say something of the direction to judges of
    first instance to ignore Rookes v. Barnard as " unworkable ". As will be
    seen when I come to examine Rookes v. Barnard in the latter part of this
    opinion, I am driven to the conclusion that when the Court of Appeal
    described the decision in Rookes v. Barnard as decided " per incuriam "
    or " unworkable " they really only meant that they did not agree with it.
    But, in my view, even if this were not so, it is not open to the Court of
    Appeal to give gratuitous advice to judges of first instance to ignore
    decisions of the House of Lords in this way and if it were open to the
    Court of Appeal to do so it would be highly undesirable. The course taken
    would have put judges of first instance in an embarrassing position, as
    driving them to take sides in an unedifying dispute between the Court of
    Appeal or three members of it (for there is no guarantee that other Lords
    Justices would have followed them and no particular reason why they
    should) and the House of Lords. But, much worse than this, litigants
    would not have known where they stood. None could have reached finality
    short of the House of Lords, and, in the meantime, the task of their pro-
    fessional advisers of advising them either as to their rights, or as to the
    probable cost of obtaining or defending them, would have been, quite

    4

    literally, impossible. Whatever the merits, chaos would have reigned until
    the dispute was settled, and, in legal matters, some degree of certainty
    is at least as valuable a part of justice as perfection.

    The fact is, and I hope it will never be necessary to say so again, that,
    in the hierarchical system of courts which exists in this country, it is
    necessary for each lower tier, including the Court of Appeal, to accept
    (loyally the decisions of the higher tiers. Where decisions manifestly
    conflict, the decision in Young v. Bristol Aeroplane Company [1944] K.B.
    718 offers guidance to each tier in matters affecting its own decisions. It
    does not entitle it to question considered decisions in the upper tiers with
    the same freedom. Even this House, since it has taken freedom to review
    its own decisions, will do so cautiously. That this is so is apparent from
    the terms of the declaration of 1966 itself where Lord Gardiner L.C. said
    [1966] 1 W.L.R. 1234:

    "Their Lordships regard the use of precedent as an indispensable
    " foundation upon which to decide what is the law and its application
    " to individual cases. It provides at least some degree of certainty
    " upon which individuals can rely in the conduct of their affairs, as
    " well as a basis for orderly development of legal rules.

    "Their Lordships nevertheless recognise that too rigid adherence
    " to precedent may lead to injustice in a particular case and also
    " unduly restrict the proper development of the law. They propose,
    " therefore, to modify their present practice and, while treating former
    " decisions of this House as normally binding, to depart from a previous
    " decision when it appears right to do so".

    "In this connection they will bear in mind the danger of disturbing
    " retrospectively the basis on which contracts, settlements of property
    " and fiscal arrangements have been entered into and also the especial
    " need for certainty as to the criminal law.

    "This announcement is not intended to affect the use of precedent
    " elsewhere than in this House."

    It is also apparent from the recent case of Jones v. Secretary of State for
    Social Services
    (Times Newspaper, December 21st, 1971), where the decision
    in Minister of Social Security v. Amalgamated Engineering Union [1967]
    1 A.C. 725 came up for review under the 1966 declaration, that the House
    will act sparingly and cautiously in the use made of the freedom assumed
    by this declaration.

    In addition, the last paragraph of the Declaration as quoted above clearly
    affirms the continued adherence of this House to the doctrine of precedent
    as it has been hitherto applied to and in the Court of Appeal.

    THE MERITS OF THE APPEAL

    It is now possible to turn to the merits of the case so far as these were
    canvassed before us on the assumption of the continued authority of the
    Rookes v. Barnard decision. Before us the appellant made three conten-
    tions—

    (i) That there was no evidence to be left to the jury that the conditions
    were fulfilled to bring the case within one of the three " categories " of
    case listed by Lord Devlin in Rookes v. Barnard as being appropriate
    for an award of punitive damages, and in particular the second, which
    was admittedly the only relevant category.


    (ii) That, even on the assumption that the first contention was wrong,
    Lawton J. had misdirected the jury in at least two important matters.

    (iii) That in any event the award of £25,000 was excessive, and
    could not be sustained.

    In order to understand these contentions it is necessary to say something
    about the facts.

    5

    THE FACTS ON WHICH THE BOOK WAS FOUNDED

    The fate of the PQ 17 convoy is one of the most publicised, as well as
    one of the most tragic, naval operations of World War II. The evidence
    showed that it had been written about many times, notably by Captain
    Roskill. R.N., the official Naval historian, and by the late Mr. Godfrey Winn,
    whose book was said to have sold half a million copies. It is unnecessary
    to recapitulate the facts here. They are graphically described in the judgment
    of the Master of the Rolls.

    It is sufficient to say that the primary cause of the disaster flowed from
    an order to the convoy to scatter, which made the ships in it an easy prey
    to the aircraft and submarines by which they were attacked. This order to
    scatter was issued by the Admiralty in Whitehall and was due to a faulty
    appreciation by the Naval Staff, in particular, as is now known, by the then
    First Sea Lord himself, that the German battleship Tirpitz was at sea, and
    to a decision, also by the then First Sea Lord, to take the responsibility for
    the order on himself rather than leave the decision to the discretion of the
    naval officers on the spot. The naval officers on the spot, including Admiral
    Hamilton in command of the Cruiser Squadron, and Captain Broome, had
    no option but to obey, and the convoy was thus left to fan out on individual
    courses covering a vast area of sea.

    So far there can be no controversy. But the two naval officers, rightly
    considering that the order to scatter must denote the approach of a superior
    hostile surface force, sailed West in company. Admiral Hamilton was acting
    under precise orders from the Admiralty. Captain Broome was not. Captain
    Broome had proposed and Admiral Hamilton accepted that he should put
    himself under command of the Admiral commanding the cruisers. That this
    decision was courageous there can be no doubt. What has been subse-
    quently disputed was whether it was as wise as it was certainly brave. Some
    have thought that it was no more than the inevitable reaction of gallant and
    experienced naval officers to the threat of surface action. Others have
    thought that its effect was to remove from the area of the convoy the only
    naval elements, which might have countered the U Boat and air attacks, and
    thus to contribute to the extent of the convoy's losses. Which of these two
    views be correct it is not appropriate here to discuss. But what is relevant
    to the present appeal is that those who criticised the decision had previously
    fastened the responsibility on Admiral Hamilton. It was one of the distinc-
    tive features of Mr. Irving's book (which it may have shared with a German
    work with whose author he had collaborated) that it attempted to place
    responsibility for the withdrawal of the destroyers entirely or mainly on the
    shoulders of Captain Broome. This was a difficult thesis to sustain since
    Captain Broome was the junior officer of the two, and had only " proposed "
    the course which both forces ultimately pursued. It also involved the
    propositions, both disputable, that the decision was wrong in the light of the
    information then available, and that the absence of the destroyers made a
    significant difference to the loss of life and material.

    From the start Captain Broome contended that the passages in the book
    relating to himself which it is not necessary to set out at length were defam-
    atory. In his statement of claim he said that they meant and were intended
    and understood to mean: —

    " that the Plaintiff was disobedient, careless, incompetent, indifferent
    " to the fate of the merchant ships and/or by virtue thereof had
    " wrongly withdrawn his destroyer force from the convoy and/or taken
    " it closer to the German airfields than he had been ordered to and
    " had thereby been largely responsible for or contributed extensively to
    " the loss of the aforesaid ships and the effective destruction of more
    " than two-thirds of the Convoy PQ.17."

    In addition, at the trial it was contended that the ordinary and natural
    meaning of one of the relevant passages was that Captain Broome was a
    coward and for this reason " needed no second bidding" to desert the
    convoy. The defendants both disputed that the book bore any of these
    meanings, but contended that without them the passages in the book were


    6

    true. It is evident from their verdict and from the magnitude of the
    award of damages that the jury rejected the contentions of the defence,
    though how far and to what extent must be to some extent a matter of
    speculation.

    THE MATERIAL BEFORE THE JURY

    From the commencement of the trial it was contended for Captain
    Broome that notwithstanding the limitations of Rookes v. Barnard, he was
    entitled to " exemplary " or " punitive" damages. The trial judge ruled
    (though on this point he was subsequently overruled by the Court of
    Appeal) that, if so, he was bound to include a plea to this effect in his
    statement of claim, and the pleading consequently introduced into the
    statement of claim by way of reamendment affords a convenient summary
    of the way the case was then put. The pleader wrote: —

    " The plaintiff will assert that the defendants and each of them
    " calculated that the money to be made out of the said book containing
    " the passages complained of would probably exceed the damages at
    " risk (if any) and that the plaintiff is consequently entitled to recover
    " exemplary damages."

    He then went on to give particulars. If established, the plea clearly
    puts the case within the second of the three exceptional categories listed by
    Lord Devlin in Rookes v. Barnard. The question for the judge was whether
    there was evidence to leave to the jury on which they could find that the
    case was indeed to be placed in this category. If there was such evidence,
    and if the jury were not misdirected, inclusion within the second category
    would have entitled (though not compelled) them to make some award on
    this account.

    The Appellants contended before the Court of Appeal and before us
    that there was no such evidence. In my opinion, this contention wholly fails.
    To convince us they would in practice have to establish that there was
    no evidence on which a properly directed jury could find that at the time
    of publication they were fully aware the words bore and were intended and
    understood to bear the meanings attached to them in the statement of claim
    since if at the time of publication the words were known to bear these
    meanings, they were false to the knowledge of the appellants and published
    with that knowledge for profit. In my view, the meanings or most of them
    are sufficiently obvious from a casual reading of the book, and the inadequate
    attempts by the author or the publishers to provide an alternative meaning
    or an escape route by which they could argue the alternative before a jury
    by small modifications or carefully phrased ambiguities are less an indication
    of innocence or naivete than a clear sighted appreciation of the danger
    that they faced. Mr. Irving was not represented before us, but his case
    was strenuously advanced before the Court of Appeal, and in another context
    (to be discussed later) we had to consider his case when counsel for the
    Appellant expressly accepted as accurate the Master of the Rolls' colourful
    account of his behaviour. It is abundantly plain from this account that
    Mr. Irving at least knew, and carefully planned, what he was doing, that he
    went on with it in spite of repeated warnings from the most authoritative
    sources, that he conceived the book " as a book with a difference as all men "
    (that is including Captain Broome) " were shown to be cowards ", and that
    he prided himself on being able to say " some pretty near the knuckle things
    " about these people " (he was directly referring to Captain Broome's threat
    of proceedings) " but if one says it in a clever enough way, they cannot take
    " action ". The rules of evidence preclude us from taking these admissions
    of his state of mind as evidence against the Appellants. But, in my opinion,
    the " near the knuckle things " said about Captain Broome in the course
    of this book, including the allegation that he was a coward, were said
    sufficiently plainly for an experienced publisher to know perfectly well what
    their meaning was and (he fact that they were said "in a clever enough
    " way " should have told them plainly that they were said with deliberate
    intent to convey the meanings without incurring heavy damages.

    7

    But the case against Cassells does not stop at the obvious meanings to
    be attached to the passages in the book. Even if, which I could not easily
    accept, they did not understand the drift of the book at a first reading, they
    acquired the right to publish and they went on actually to publish in cir-
    cumstances from which the jury were clearly entitled to infer that they went
    ahead with the most cold-blooded and clear-sighted appreciation of what
    they were doing.

    The Appellants were not the first publishers selected by Mr. Irving. His
    original publishers were William Kimber Ltd., who ultimately refused to
    publish the book on the ground that the book was " a continuous witch hunt
    of Captain Broome" having been advised by Captain Roskill, who gave
    evidence for Captain Broome, and perhaps by others that " the book reeks
    " of defamation ". In the absence of evidence by either defendant at the
    trial it is impossible to say how much of this was known to the Appellants.
    But it is certain that Mr. William Kimber warned the Appellants in unmis-
    takable terms that his House had rejected the book precisely on the grounds
    that it was libellous, amongst others of Captain Broome. The undisputed
    response of the Appellants was either flippant or cynical. Moreover, Cap-
    tain Broome himself had warned them on several occasions that if they
    published the book, as they did, in substantially the form in which he had
    seen it, they must expect an action for libel from himself. That they took
    these threats seriously can be seen from their reaction to the latest of them
    which followed the issue of the proof copies. On receipt of this, the Appel-
    lants placed a stop on the book in the following terms: —

    " Will you please note that absolutely and positively, not one single
    " copy, on any pretext whatsoever, is to be removed from the House
    " without reference to me."

    In attempts to sell the serial rights their efforts were " shot down " by
    three national Sunday newspapers presumably on the same grounds.

    What the full explanation of their subsequent publication may have been
    will never be known, since the Appellants did not elect to give evidence.
    But in the absence of any explanation the jury were perfectly entitled to
    infer that they had calmly calculated that the risks attendant on publication
    did not outweigh the chances of profit What is certain is that, in so far
    as they were aware that the passages complained of could be reasonably
    understood to bear the meanings attached to them by Captain Broome,
    including the allegation of cowardice, they published them knowing them in
    this sense to be false, since no effort was made at any stage to suggest
    that there was any material on which a reasonable publisher could base the
    belief that the passages complained of, if they bore these meanings, were
    true. In his judgment in the Court of Appeal the Master of the Rolls lists
    other features of the case against the Appellants upon which the jury were
    entitled to base inferences with most of these, except the reference to
    the paperback edition, which, contrary to what he says (perhaps per
    incuriam),
    was not published by the Appellants but under licence
    by another publisher, I find myself in agreement. In particular, I concur
    in what was said in the Court of Appeal about the dust cover of the book,
    which, making every allowance for the popular style in such productions
    and putting the most favourable interpretation upon every phrase in it,
    seems, to my mind, in the absence of explanation, to indicate that the pub-
    lishers were well aware of the full implication of the passages complained
    of and were prepared to sell the book on this sensational interpretation.
    In such circumstances to argue that there was no evidence from which the
    jury could infer that " the Appellants had calculated that the money to be
    " made out of the book containing the passages complained of would
    " probably exceed the damages at risk (if any) " was, to my mind a somewhat
    forlorn hope, and nothing which Counsel for the Appellants said in the
    course of his strenuous and ably conducted argument has convinced me to
    the contrary. I will refer to the passage from Lord Devlin's speech in
    Rookes v. Barnard relating to the categories later for its proper interpreta-
    tion, but I cannot see how, on any view, if these facts were proved to be
    satisfaction of a jury, properly directed, they are not sufficient to enable the
    jury to base inferences bringing the publication within the second category.


    8

    THE DIRECTION ON THE RELATION BETWEEN
    THE TWO AWARDS

    There was much more substance in, and I find much greater difficulty in
    deciding upon, the Appellants' second contention, which was based, not
    upon Lord Devlin's three listed categories, but upon his exposition of the
    general conditions under which exemplary damages may be awarded after the
    conclusion of the three " considerations " listed on pp. 1227 and 1228 of the
    report which, he says, ought always to be borne in mind. At this point,
    Lord Devlin said :—

    " Thus a case for exemplary damages must be presented quite differ-
    " ently from one for compensatory damages; and the judge should not
    " allow it to be left to the jury unless he is satisfied that it can be
    " brought within the categories I have specified. But the fact that the
    " two sorts of damage differ essentially does not necessarily mean that
    " there should be two awards. In a case in which exemplary damages
    " are appropriate, a jury should be directed that if, but only if, the sum
    " which they have in mind to award as compensation (which may, of
    " course, be a sum aggravated by the way in which the defendant has
    " behaved to the plaintiff) is inadequate to punish him for his outrageous
    " conduct, to mark their disapproval of such conduct and to deter him
    " from repeating it, then it can award some larger sum." (italics mine).
    " If a verdict given on such direction has to be reviewed upon appeal,
    " the appellate court will first consider whether the award can be justified
    " as compensation and if it can, there is nothing further to be said. If
    " it cannot, the court must consider whether or not the punishment is,
    " in all the circumstances, excessive. There may be cases in which it is
    " difficult for a judge to say whether or not he ought to leave to the jury
    " a claim for exemplary damages. In such circumstances, and in order
    " to save the possible expense of a new trial, I see no objection to his
    " inviting the jury to say what sum they would fix as compensation and
    " what additional sum, if any, they would award if they were entitled
    " to give exemplary damages. That is the course which he would have
    " to take in a claim to which the Law Reform (Miscellaneous Provisions)
    " Act, 1934, applied."

    In my opinion, this passage contains a most valuable and important con-
    tribution to the law of exemplary damages which prior to Rookes v. Barnard
    had not, so far as I am aware, been adequately stressed in any previous case,
    and which, in my view, would retain, and possibly even increase, its value even
    if the categories in Rookes v. Barnard were to be wholly rejected.

    In essence the doctrine is that the award of a punitive element in damages,
    if it is ever permissible, must also remain discretionary, and, in order to give
    effect to the second of the three " considerations " listed at page 1227, the
    judge should always warn a jury that they need not award anything, and
    must not do so unless they are satisfied that a purely compensatory award
    (in a sense which I will explain) is inadequate. It follows that whatever they
    do award should only be a sum which has taken into account the award of
    damages already notionally allowed as compensation, including, where appro-
    priate, the " aggravated " element required by a defendant's bad conduct, and
    should never exceed the amount by which the required penalty (if that is
    the right word) exceeds the required compensation.

    I shall revert to this feature of Rookes v. Barnard later. But what is said
    in substance by the Appellants in this case is that the summing-up failed to
    give effect to this important and, in my view, vital principle.

    The learned judge directed the jury over two days and much that he said
    was irrelevant to the question of exemplary damages. Of what was relevant to
    exemplary damages, most was a direction to the jury about the second cate-
    gory and the evidence in the case relevant to it. This reflected the balance
    of argument by counsel during the case and it appears from a remark in the
    judgment of Phillimore L.J. in the Court of Appeal that, in some sense at
    least, both counsel agreed that dependent on the view which the jury took
    of the facts Lawton J. should leave the question of exemplary damages to

    9

    the jury. But there were two passages in the summing-up relevant to the
    present issue. The first was a passage on the first day of the summing-up
    when the judge, having directed the jury that punitive damages were in the
    nature of a fine, went on to give two examples from the criminal law carrying
    the moral that the punishment must neither be excessive nor inadequate to
    the gravity of the offence and said:—

    " If you are going to punish a man to show him that libel does not
    " pay. provided, of course, it comes within Mr. Justice Widgery's defini-
    " tion" (he was referring to Manson v. Associated Newspapers Ltd.,
    " supra) what you do must be reasonable in all the circumstances,
    " bearing in mind that is a penalty."

    The second, and more important, of the passages was on the second day
    of the summing-up when, after leaving an agreed list of questions to the jury,
    the learned judge said: —

    " As you will see, the issue of damages has been divided into two
    " questions. The first one is No. 3, ' What compensatory damages do
    "' you award the plaintiff? ' You will remember that compensatory
    " damages are compensation for something, they are not given to you.
    " When you come to consider that question you must remember that
    " this is a joint publication by Cassells & Co., Ltd., and Mr. Irving.
    " You do not award two different sums. You award one sum and you
    " will leave the lawyers to work out what it means, but it is one sum.
    " Do you all follow that? Then having decided what are the proper
    " additional compensatory damages then you will go on and consider the
    " fourth question, namely, ' Has the plaintiff proved that he is entitled
    "' to exemplary damages? ' It is for him to prove that he is entitled
    " to it, not for the defendants to prove that he is not. This question
    " has got to be divided up into a number of subsidiary questions and
    " the reason for this is problems of law which arise, but you do not
    " have to concern yourselves with those. That is my responsibility.
    " There are two defendants and, as I have been at pains to point out
    " to you during my summing-up, the case against each defendant on the
    " issue of punitive damages is different, so you will have to consider
    " the case against each defendant separately. I suggest you start with
    " Mr. Irving and then go on to Cassell & Co., Ltd. In respect of each of
    " them you will ask yourselves this question: ' Has the plaintiff proved
    "' his entitlement against that defendant? ' If the answer is yes then
    " you will have to go on and assess how much punitive damages should
    " be awarded. If the answer is no he will get no punitive damages. At
    " least that will be your finding. What the law is is another matter, but
    " that will be your finding.

    " Having carried out that operation in relation to Mr. Irving you should
    " carry out exactly a similar operation in relation to Cassells & Co.
    " Remember all the time that letters written by Mr. Irving or to Mr.
    " Irving, other than by Cassells, are not evidence against Cassells & Co.
    " I cannot stress that too much. You will have to ask yourselves: ' Has
    "' he proved that he is entitled to punitive damages against Cassells
    "' & Co. Ltd.? ' If the answer is no that is that. If the answer is yes
    " you will have to assess the damages.

    " I have put all that into an omnibus lawyers' series of questions. I
    " could have put it all into one question, but I came to the conclusion
    " that it would probably be better for you. I will read paragraph 4
    " again. ' Has the plaintiff proved that he is entitled to exemplary
    "' damages? If yes, has he proved his entitlement against one or both
    "' of the defendants? If one only, against which one? ' Then you see
    " the last question under this heading, ' What additional sum should be
    "' awarded him by way of exemplary damages? ' Would you be good
    " enough to underline the word 'additional', because I want to know,
    " and learned counsel want to know, if you do decide to award punitive
    "damages, how much more do you award over and above the
    " compensatory damage."


    10

    What was said against this passage on behalf of the Appellants was that
    this summing-up was defective in that it did not make it absolutely plain to
    the jury that before making any punitive award against the defendant they
    must first take into account and assess the punitive effect of any compensatory
    award (including any element of "aggravated" damage) and only award
    such amount (if any) by which the appropriate penalty exceeded such award.
    I am bound to say that I have found the greatest difficulty in accepting the
    summing-up on this point as adequate, and my difficulties were increased
    by two passages in the final speech of Captain Broome's counsel which as
    counsel for the Appellants persuasively argued seemed to indicate that the
    respective awards of compensatory and punitive damages were entirely
    separate assessments and that one should not be balanced against the other.
    In so far as counsel said this, and he appears to have done so, he was, in my
    opinion, entirely wrong. In the end, however, I have come to the conclusion
    that the judge's direction was just adequate to convey the impression intended
    in the passage of Lord Devlin's speech which had been accurately read to
    the jury by counsel for Mr. Irving and that the jury were not in fact misled.
    In coming to this conclusion I have been impressed, as was the Court of
    Appeal, by the stress the judge laid on the word " additional " in the passage
    cited, by the fact that the form of the questions left to the jury (which did
    not include as it should have done, the words " if any " in that relating to
    punitive damages) was agreed by counsel and by the fact that the line of the
    judge's summing-up was entirely in accord with the case for the Appellants
    as it was put to the jury on their behalf, and that everyone seems to have
    assumed that the result of the jury's answers was that which in fact obtained.
    I desire, however, to say that the direction on this point, if sufficient, as I am
    constrained to say it was, was only barely sufficient, and that I trust that in
    future cases of this kind trial judges will stress the matter a good deal more
    clearly and with greater emphasis than was done here. In the present case
    I do not think that the judge can be blamed for putting the matter compen-
    diously in a form which seems to have misled no one, which accorded with
    the way and with the emphasis with which it had been put to the jury on
    behalf of the Appellants, and which, according to Phillimore L.J.'s
    observation quoted above had, in some sense, been agreed.

    A SINGLE AWARD OR TWO?

    Less meritorious, in my view, was the second criticism of the direction
    put before us. This was in effect that the judge did not correctly direct
    the jury as to the principles on which a joint award of exemplary damages
    can be made against two or more defendants guilty of the joint publication
    of a libel in respect of which their relevant guilt may be different, and their
    means of different amplitude. With high regard for the judgments of the
    Master of the Rolls and of Salmon L.J., I differ from both in what they
    said on this aspect of the matter, both as to the effect of the judge's sum-
    ming up and to what it ought to be in such cases. The Master of the Rolls
    said: —

    " There is, of course, a difficulty. How is a jury to assess the one
    " figure against two defendants. Are they to fix it at a high sum which
    " they think the more blameworthy ought to pay? Or a low sum for the
    " least blameworthy? That must be left to the jury. They may, if they
    " choose, fix a figure in between. The Judge can, I think, tell them that
    " they can fix it as against the more blameworthy, expecting him to pay
    " it: and leave the least blameworthy (if he is called upon to pay) to
    " recover contribution. In this case the Judge left it to them without any
    " specific direction. That was, J think, quite legitimate: and is no
    " ground for disturbing the verdict." [the italics are mine].
    The Master of the Rolls then added:

    " In any case, however, I think Cassells are not at liberty to take this
    " point. They did not ask Judge or jury to split the damages. The
    " Judge told Counsel the questions he was going to put to the jury: and
    " asked their comments. That was the time for Counsel to ask for the
    " exemplary damages to be split. Not having asked, it is too late to
    " ask in this Court."

    11

    Salmon L.J. appears to have thought that the award should reflect the
    amount due by the most guilty of the tortfeasors and he said: —

    " It is well settled that where there are several defendants who have
    " all committed a joint tort, there can be only one award of one sum
    " of damages against all of them: Greenlands Ltd. v. Wilmshurst &
    " London Assn. for Protection of Trade
    [1913] 3 K.B. 507. It may
    " bear hardly on one or more of the defendants. The moral may be
    " that you must be as careful in choosing your companions in tort as
    " you are in choosing your companions when you go out shooting."
    [The italics are again mine.]

    With respect to both judgments which, as will be seen, are arguably not
    quite consistent with one another, I think the effect of the law is exactly
    the opposite and that awards of punitive damages in respect of joint publica-
    tions should reflect only the lowest figure for which any of them can be
    held liable. This seems to me to flow inexorably both from the principle
    that only one sum may be awarded in a single proceeding for a joint tort,
    and from the authorities which were cited to us by Mr. Parker in detail
    in the course of his argument. Mr. Parker referred us to Haydon's case
    (1611) (11 Co. Rep. 5a); Clark v. Newsam, [1847] 1 Ex. 131 ; Hill v. Good-
    child
    (1771) 5 Burr. 2791 ; Dawson v. McLelland [1899] 1 R. 486; Green-
    lands Ltd. v. Wilmshurst and Another
    [1913] 3 K.B. 507 esp. at 521 ; Smith
    v. Streatfeild [1913] 3 K.B. 764 at 769; Chapman v. Ellesmere (Ld) [1932]
    2 K.B. 431 at 471 per Slesser L.J.; Dougherty v. Chandler (N.S.W.) [1946]
    State Reports 370; Egger v. Chelmsford [1965] 1 Q.B. 248 at 262 and to
    the current (6th) edition of Gatley at para. 1390. I think that the inescap-
    able conclusion to be drawn from these authorities is that only one sum can
    be awarded by way of exemplary damages where the plaintiff elects to sue
    more than one defendant in the same action in respect of the same publica-
    tion, and that this sum must represent the highest common factor, that is
    the lowest sum for which any of the defendants can be held liable on this
    score. Although we were concerned with exemplary damages, I would
    think that the same principle applies generally and in particular to aggra-
    vated damages, and that dicta or apparent dicta to the contrary can
    be disregarded. As counsel conceded, however, plaintiffs who wish to
    differentiate between the defendants can do so in various ways, for example,
    by electing to sue the more guilty only, by commencing separate proceedings
    against each and then consolidating, or, in the case of a book or newspaper
    article, by suing separately in the same proceedings for the publication of
    the M.S. to the publisher by the author. Defendants, of course, have their
    ordinary contractual or statutory remedies for contribution or indemnity
    so far as they may be applicable to the facts of a particular case. But these
    may be inapplicable to exemplary damages.

    Having established his principle, Counsel for the Appellant went on to
    argue that the judge had misdirected the jury, seeking to encourage us in
    this belief by the submission that if he had persuaded at least two members
    of the Court of Appeal to defend it on one of two possibly inconsistent and
    erroneous bases, the learned judge might well have succeeded in making the
    jury accept one of them as the ground of their award.

    The passage in the summing-up on which the Appellants relied for this
    purpose was as follows. It occurs immediately after the passage already
    quoted in which the judge directs the jury to regard the exemplary damages
    as a sum additional to the compensatory award. Lawton J. went on: —

    " You may be saying to yourselves: if we do take the view that both
    " these defendants should pay something by way of punitive damages,
    " should we take into consideration the relative culpability of each one?
    " Again, and I merely say this by way of illustration, and certainly not
    " by way of guidance to you, say, for example you took the view that
    " Mr. Irving was more to blame than Cassells & Co., or to be fair, you
    " took the view that Cassells & Co. being an experienced firm of
    " publishers were more to blame than this young man. Mr. Irving,
    " should you make Cassells & Co. pay a larger sum by way of punitive
    " damages than Mr. Irving? The answer to that is no " (italics mine).
    " Whatever damages, if any, you decide should be awarded by way of

    6

    12

    " punitive damages must be the same sum in respect of both Mr. Irving
    " and Cassells & Co. Ltd., if you find them both liable to pay punitive
    " damages. Have I made that clear? "

    This direction is in many ways defective as a piece of clear English prose.
    In particular, it contains an ambiguity, later cured by an exchange in the
    presence of the jury between counsel and the Bench as to whether the jury
    is to award a single sum against both defendants or two sums, each against
    one of the defendants. But on the crucial point as to whether this sum,
    when awarded, should represent the higher or the lower figure for which
    the jury found either guilty I myself find no difficulty in thinking that the
    jury would have been clear that they were to award the lower. I would
    hope that on other occasions this would be made even plainer, but I find
    it difficult to criticise an experienced judge for not being absolutely crystal
    clear on this point at the end of a two day direction over a wide range of
    different topics following a seventeen day trial. I would not disturb the
    verdict on these grounds.

    I also consider that having agreed to the form of the questions left to the
    jury it was not really open to the Appellants to contend, on appeal, that the
    awards should be split. In any case I am fortified in my view of the matter
    by the fact that I find the same difficulty as did the Court of Appeal in
    differentiating in any way between the moral culpability of the two
    defendants. Mr. Irving may have been the author of the defamatory matter.
    But the Appellants published it, on the jury's finding, with their eyes open
    as to what it contained. It may be that Mr. Irving had fewer means and
    if the jury were looking on the exemplary damages from the point of view
    of deferring him, they could have awarded a smaller sum. But there seems
    to have been no evidence concerning the means of either party, and I do
    not see how at this late date we can properly be invited to speculate. The
    enterprise was essentially a joint one, and if the Appellants had not all
    the information available to Mr. Irving, they had enough to make sure
    that they knew exactly what they were doing. It is difficult to know on
    what principle the jury could have differentiated between the two defendants.

    WAS THE AWARD EXCESSIVE?

    The final point taken for the Appellants was that the award of £25,000
    exemplary damages, or, as it was equally properly, and possibly better put,
    the total award of £40,000 (which included the exemplary element) was
    so far excessive of what twelve reasonable men could have awarded that
    it ought to be set aside and a new trial ordered. I cannot disguise from
    myself that I found this an extremely difficult point in the case, and have
    only decided that the verdict should not be disturbed, with great hesitation,
    because I am very conscious of the fact that I would certainly have awarded
    far less myself, and possibly, to use a yardstick which some judges have
    adopted as a rule of thumb, less than half the £25,000.

    A number of factors lead me, however, to the belief that the verdict
    should not be disturbed. The first, and paramount, consideration in my
    mind is that the jury is, where either party desires it, the only legal and
    constitutional tribunal for deciding libel cases, including the award of
    damages. I do not think the judiciary at any level should substitute itself
    for a jury, unless the award is so manifestly too large, as were the verdicts
    in Lewis v. Daily Telegraph Ltd. [1963] 1 Q.B. 340 or manifestly too small,
    as in English & Scottish Co-operative Properties Mortgage & Investment
    Society Ltd. v. Odhams Press Ltd.
    [1940] 1 K.B. 440, that no sensible jury
    properly directed could have reached the conclusion. I do not think much
    depends on the exact formula used to describe the test to be applied,
    whether the traditional language " so large (or small) that twelve sensible
    "men could not reasonably have given them " (per Esher M.R. in Praed v.
    Graham (1890) 24 Q.B.D. 53 at p. 55 or that of Palles C.B. in McGrath v.
    Bourne
    I.R. 10 C.L. 160 at 164 cited by Lord Wright in Mechanical and
    General Inventors Co. & Lehwess
    v. Austin [1935] A.C. 346 at 378. that
    " no reasonable proportion existed between it and the circumstances of the


    13

    " case ". The point is that the law makes the jury and not the judiciary
    the constitutional tribunal, and if Parliament had wished the roles Co be
    reversed in any way, Parliament would have said so at the time of the
    Administration of Justice (Miscellaneous Provisions) Act, 1933. since section
    6 of that Act expressly accepts defamation actions (otherwise than in a
    limited class of case) from the general change which it then authorised.

    In addition to the above cases counsel for the Respondent cited
    Youssoupoff v. Metro-Goldwyn-Mayer (1934) 50 T.L.R. 581. at pp. 583,
    584; Bocock v. Enfield Rolling Mills [1954] 1 W.L.R. 1303 ; Scott v. Musial
    [1959] 2 Q.B. 429 at 436; Morey v. Woodfield [1964] 1 W.L.R. 16; McCarey
    v. Associated Newspapers [1965] 2 Q.B. 86; Broadway Approvals Ltd. v.
    Odhams Press [1965] 1 W.L.R. 805. esp at 818. and 820.

    I do not see anything in the above cases which alters the principle
    involved, nor am I aware of anything in the nature of exemplary damages
    to alter it in this limited class of case. It may very well be that, on the
    whole, judges, and the legal profession in general, would be less generous
    than juries in the award of damages for defamation. But I know of no
    principle of reason which would entitle judges, whether of appeal or at
    first instance, to consider that their own sense of the proprieties is more
    reasonable than that of a jury, or which would entitle them to arrogate
    to themselves a constitutional status in this matter which Parliament has
    deliberately withheld from them, for aught we know, on the very ground
    that juries can be expected to be more generous on such matters than
    judges. I speak with the greater conviction because my own view is that
    the legal profession is right to be cautious in such matters and juries are
    wrong if they can be said to be more generous. But that is not the law
    and I do not think that judges who hold my view are any more entitled to
    change the law on this topic than they have been in the past.

    Counsel very rightly drew our attention to observations of Lord Devlin
    in Rookes v. Barnard at p. 1227 when he said:

    " I should not allow the respect which is traditionally paid to an
    " assessment of damages by a jury to prevent me from seeing that the
    " weapon is used with restraint. It may even be that the House may
    " find it necessary to follow the precedent it set for itself in Benham
    " v. Gambling (1941) A.C. 157, and place some arbitrary limit on
    " awards of damages that are made by way of punishment."

    I regard Benham v. Gambling as setting an absolutely necessary but
    wholly arbitrary rule to solve an absolutely insoluble problem, and I do
    not think it could readily be extended to exemplary damages for libel simply
    on the ground that judges do not agree with juries on quantum. I do not
    think the first sentence in Lord Devlin's observation means more than
    that the House will use its legitimate powers to interfere with awards by
    juries with particular regard to the need for preserving liberty, which he
    was concerned to express, and if it means that the House was conferring
    on itself greater powers than it previously possessed I would have regarded
    it as an usurpation of the function of the legislature as a whole. We were
    also referred to the observations of the Court of Appeal in Ward v. James
    [19661 1 Q.B. 273 at p. 301. If the passage quoted there means more than
    that Court, in exercising its undoubted right to interfere with unreasonable
    verdicts will have more regard than heretofore to the general level of
    damages in cases of a similar nature, and particularly personal injury
    cases, it may need further consideration.

    The second reason which leads me to decline to interfere with the jury's
    verdict in this case is the peculiar gravity of the facts of this case. I share
    with Lord Justice Phillimore the view that the jury must have found that
    " these grave libels were perpetrated quite deliberately and without regard
    " to their truth by a young man and a group of publishers interested solely
    " in whether they would gain by the publication of this book. They did
    " not care what distress they caused." It is true, and I have been con-
    strained to say, that I would have treated this heinous offence against
    public decency with far less severity than did the jury in this case. But, at
    the end of the hearing, I found myself as unable to say as were the three

    14

    eminent judges in the Court of Appeal that no twelve reasonable jurors
    could have come to a different conclusion from myself. These matters
    are very highly subjective, and I do not feel myself entitled to substitute
    my own subjective sense of proportion for that of the constitutional tribunal
    appointed by law to determine such matters.

    I should add, lest I be thought to have overlooked the point that, to
    avoid the expense and anxieties of a new trial Counsel on both sides
    agreed to leave to us, in case the appeal should succeed, the assessment
    of any sum to be awarded. I doubt myself how satisfactory this would have
    been but, quite obviously, before we embarked upon such a task we should
    have to be first satisfied that the original verdict could not stand, and to
    this preliminary issue the agreement between counsel is necessarily
    irrelevant.

    THE DECISION IN ROOKES v. BARNARD

    These considerations really conclude the result of this appeal. It must,
    in my view, be dismissed. But. lest other litigants be put to expense and
    uncertainty comparable to that which the parties to this case have, in my
    view, unnecessarily suffered, it is now unavoidable that I should deal at
    length with the wider issues in the law of damages on which the Court of
    Appeal founded the greater part of its judgment. Before I do so I ought
    to remark that, though counsel for the appellants took the point that the
    trial judge should have withdrawn the question of the paper back edition
    from the jury. I regard the way in which he left it to them as so favourable
    to the appellants as not to justify a new trial on that ground alone.

    The judgment of the Court of Appeal was based on the simple proposi-
    tion that the decision in Rookes v. Barnard so far as it affected punitive or
    exemplary damages was made per incuriam and without prior argument by
    counsel and that judges should in future ignore it as unworkable, and that.
    in directing juries, judges of first instance should return to the status quo
    ante Rookes v. Barnard as if that case had never been decided at all.

    I have already said, and will not repeat, what I think about the propriety
    of the Court of Appeal in doing this at all, and the appropriateness, in view
    of the consequences to the parties, of their doing it in this case. I now
    proceed to consider how far their opinions are correct.

    I make no complaint of their view that Rookes v. Barnard clearly needs
    reconsideration by this House, if only because of the reception it has received
    in Australia, Canada and New Zealand. I view with dismay the doctrine
    that the Common Law should differ in different parts of the Commonwealth,
    which is the effect of the decision in Australian Consolidated Press v. Uren
    [1969] 1 AC 590, and anything one can do in this case to bring the various
    strands of thought in different Commonwealth countries together ought to
    be done. Moreover, as I shall show, many of Lord Devlin's statements have
    been misunderstood, particularly by his critics, and the view of the House
    may well have suffered to some extent from the fact that its reasons were
    given in a single speech. Whatever the advantages of a judgment of an
    undivided court delivered by a single voice, the result may be an unduly
    fundamentalist approach to the actual language employed. Phrases which
    were clearly only illustrative or descriptive can be treated in isolation from
    their context, as being definitive or exhaustive. I am convinced that this
    has happened here and that to some extent at least, the purpose and nature
    of Lord Devlin's exposition has been misunderstood.

    THE LAW BEFORE ROOKES v. BARNARD

    Whatever else may be said, the Court of Appeal's judgment is based on
    one assumption which is plainly incorrect. This assumption is, to quote its
    most characteristic expression on the lips of the Master of the Rolls:

    " Prior to Rookes v. Barnard, the law as to exemplary damages was
    " settled ".

    In point of fact, it was nothing of the kind. Lord Denning went on im-
    mediately to quote from he 12th edition of Mayne and MacGregor on
    Damages the following passage from para. 207.


    15

    "Such damages are variously called punitive damages, vindictive
    " damages, exemplary damages, and even retributory damages. They
    " can apply only where the conduct of die defendant merits punishment,
    " which is only considered to be so when his conduct is wanton, as when
    " it discloses fraud, malice, violence, cruelty, insolence, or the like. or.
    " as it is sometimes put, where be acts in contumelious disregard of the
    " plaintiff's rights . . . Such damages are recognised to be recoverable
    " in appropriate cases in defamation ".

    If the Master of the Rolls had gone on to quote from para. 212 of the
    same edition he would have read the following passage, inconsistent with
    his construction of the foregoing, under the heading " A Double Rationale "
    which should, I hope, have disabused him of the idea that the law of
    punitive damages was in fact settled prior to Rookes v. Barnard. The
    passage is as follows:

    " 3. A Double Rationale

    " Through all these various cases, however, runs another thread,
    " giving a very different explanation of the position. For indeed it
    " cannot be said that English law has committed itself finally and fully
    " to exemplary damages, and many of the above cases point to the
    " rationale not of punishment of the defendant but of extra compensa-
    " tion for the plaintiff for the injury to his feelings and dignity. This is,
    " of course, not exemplary damages at all. It is another head of non-
    " pecuniary loss to the plaintiff."

    (The italics are mine).

    Indeed, in the well-known American textbook on the law of damages by the
    late Professor Charles T. McCormick, published in 1935 by the West
    Publishing Company of Minnesota occurs the following passage to the same
    effect on page 278: —

    " In England, where exemplary damages had their origin, it is still
    " not entirely clear whether the accepted theory is that they are a distinct
    " and strictly punitive element of the recovery, or they are merely a
    " swollen or ' aggravated' allowance of compensatory damages per-
    " mitted in cases of outrage. It is only in America that the cases have
    " clearly separated exemplary from compensatory damages, and it is
    " only here that the doctrine, thus denitely isolated, has been attacked
    " and criticised."

    More characteristic than either of these passages and more illustrative of
    the confusion which reigned before Rookes v. Barnard is the paragraph on
    the subject in Lord Simonds' edition of Halsbury's Laws of England (Vol. 11
    title Damages p. 223)

    " Exemplary damages. Where the wounded feeling and injured pride
    " of a plaintiff, or the misconduct of a defendant, may be taken into
    " consideration, the principle of restitutio in integrum no longer applies.
    " Damages are then awarded not merely to recompense the plaintiff for
    " the loss he has sustained by reason of the defendant's wrongful act,
    " but to punish the defendant in an exemplary manner, and vindicate
    " the distinction between a wilful and an innocent wrongdoer. Such
    " damages are said to be ' at large', and, further, have been called
    " exemplary, vindictive, penal, punitive, aggravated, or retributory."

    This passage clearly shows the extraordinary confusion of terminology
    reflecting differences in thinking and principle which existed up to 1964.
    Apart from anything else, " aggravated " damages, classed as compensatory
    by Mayne and MacGregor, and by Professor McCormick, are assimilated to
    exemplary or punitive damages as such, as is the phrase damages " at large ",
    —an expression so indefinite in its connotation that counsel for the appellants
    in argument felt able to include within it (as this passage suggests
    inappropriately) even the general damages for pain and suffering in a
    personal injuries case. Clearly, before Rookes v. Barnard, the thinking
    and the terminology alike called aloud for further investigation and exposi-
    tion, and, since in such cases it is the classic function of this House to
    make such reviews I cannot accept the simpliste doctrine of the Court of

    16

    Appeal either that there was no need to make it, or that the only thing to
    restore clarity is to go back to the state of the law as it was in 1963.
    In passing, I may say that I do not attach so much importance as did
    the Court of Appeal to the circumstance that the two categories mentioned
    by Lord Devlin had never been discussed in argument by counsel. The
    cases and text books on exemplary damages had been exhaustively read,
    and when this House undertakes a careful review of the law it is not
    to be described as acting per incuriam or ultra vires if it identifies and
    expounds principles not previously apparent to the counsel who addressed
    it or to the judges and text book writers whose divergent or confusing
    expressions led to the necessity for the investigation. Of course, in a sense,
    it would be easy enough to direct a jury under the old law if one simply
    said to them that any conduct of which they chose on rational grounds to
    disapprove would give rise to an award of exemplary damages and that
    any sum they chose to think appropriate as the penalty would be acceptable.
    But no-one in recent years has ever thought this, although it is noteworthy
    that as recently as 1891 the author of Sedgwick's " A treatise on the Measure
    " of Damages " was writing (op: cit: eighth edn: pp. 502 and following)—

    "Until comparatively recent times juries were as arbitrary judges of
    " the amount of damages as of the facts . . . Even as late as the time
    " of Lord Mansfield it was possible for counsel to state the law to be
    " that ' The Court cannot measure the ground on which the jury find
    "' damages that may be thought large: they may find upon facts
    "' within their own knowledge' . . . The doctrine of exemplary
    " damages is thus seen to have originated in a survival in this limited
    " class of cases of the old arbitrary power of the jury". (Italics
    mine.)

    Clearly modern juries must be given adequate professional guidance and
    the object of Lord Devlin's opinion in Rookes v. Barnard was to enable
    them to have it. Speaking for myself, and whatever view I formed of the
    categories, I would find it impossible to return to the chaos which is
    euphemistically referred to by Phillimore LJ. as " the law as it was before
    " Rookes v. Barnard ".

    Before I examine the actual decision in Rookes v. Barnard I would now
    propose to make two sets of observations of a general character. The first
    relates to the context in which damages must be awarded, the second to
    the terminology to be used in particular classes of case.

    THE SUBJECTIVE ELEMENT IN DAMAGES

    Of all the various remedies available at common law, damages are the
    remedy of most general application at the present day, and they remain the
    prime remedy in actions for breach of contract and tort. They have been
    defined as " the pecuniary compensation obtainable by success in an action
    " for a wrong which is either a tort or a breach of contract". They must
    normally be expressed in a single sum to take account of all the factors
    applicable to each cause of action and must of course be expressed in
    English currency. (Mayne and MacGregor on Damages 12th Edition
    paragraph 1.)

    In almost all actions for breach of contract, and in many actions for tort,
    the principle of restitutio in integrum is an adequate and fairly easy guide
    to the estimation of damage, because the damage suffered can be estimated
    by relation to some material loss. It is true that where loss includes a
    pre-estimate of future losses, or an estimate of past losses which cannot in
    the nature of things be exactly computed, some subjective element must enter
    in. But the estimate is in things commensurable with one another, and
    convertible at least in principle to the English currency in which all sums
    of damages must ultimately be expressed.

    In many torts, however, the subjective element is more difficult. The pain
    and suffering endured, and the future loss of amenity, in a personal injuries
    case are not in the nature of things convertible into legal tender. The
    difficulties arising in the paraplegic cases, or, before Benham v. Gambling,
    in estimating the damages for loss of expectation of life in a person who


    17

    died instantaneously, are only examples of the intrinsically impossible task
    set judge or juries in such matters, Clearly the £50,000 award upheld in
    Morey v. Woodfield (No. 2) [1964] 1 W.L.R. 16 could never compensate
    the victim of such an accident. Nor. so far as I can judge, is there any
    purely rational test by which a judge can calculate what sum. greater or
    smaller, is appropriate. What is surprising is not that there is difference of
    opinion about such matters, but that in most cases professional opinion
    gravitates so closely to a conventional scale. Nevertheless in all actions in
    which damages, purely compensatory in character, are awarded for suffering,
    from the purely pecuniary point of view the plaintiff may be better off. The
    principle of restitutio in integrum, which compels the use of money as its
    sole instrument for restoring the status quo, necessarily involves a factor
    larger than any pecuniary loss.

    In actions of defamation and in any other actions where damages for loss
    of reputation are involved, the principle of restitutio in integrum has neces-
    sarily an even more highly subjective element. Such actions involve a money
    award which may put the plaintiff in a purely financial sense in a much
    stronger position than he was before the wrong. Not merely can he recover
    the estimated sum of his past and future losses, but, in case the libel, driven
    underground, emerges from its lurking place at some future date, he must
    be able to point to a sum awarded by a jury sufficient to convince a bystander
    of the baselessness of the charge. As Windeyer J. well said in Uren v.
    John Fairfax & Sons Pty. Ltd. 117 C.L.R. at p. 150:

    " It seems to me that, properly speaking, a man defamed does not
    " get compensation for his damaged reputation. He gets damages
    " because he was injured in his reputation, that is simply because he was
    " publicly defamed. For this reason, compensation by damages operates
    " in two ways, as a vindication of the plaintiff to the public, and as
    " consolation to him for a wrong done. Compensation is here a solatium
    " rather than a monetary recompense for harm measurable in money."

    This is why it is not necessarily fair to compare awards of damages in this
    field with damages for personal injuries. Quite obviously, the award must
    include factors for injury to the feelings, the anxiety and uncertainty under-
    gone in the litigation, the absence of apology, or the reaffirmation of the
    truth of the matters complained of, or the malice of the defendant. The bad
    conduct of the plaintiff himself may also enter into the matter, where he has
    provoked the libel, or where perhaps he has libelled the defendant in reply.
    What is awarded is thus a figure which cannot be arrived at by any purely
    objective computation. This is what is meant when the damages in defam-
    ation are described as being " at large ". In a sense, too, these damages are
    of their nature punitive or exemplary in the loose sense in which the terms
    were used before 1964, because they inflict an added burden on the defend-
    ant proportionate to his conduct, just as they can be reduced if the defendant
    has behaved well—as for instance by a handsome apology—or the plaintiff
    badly, as for instance by provoking the defendant, or defaming him in return.
    In all such cases it must be appropriate to say with Esher, M.R. in Praed v.
    Graham (1890) 24 Q.B.D. 53 at p. 55): —

    " In actions of libel ... the jury in assessing damages are entitled
    " to look at the whole conduct of the defendant" (I would personally
    add " and of the plaintiff ") " from the time the libel was published
    " down to the time they give their verdict. They may consider what
    " his conduct has been before action, after action, and in Court during
    " the trial".

    It is this too which explains the almost indiscriminate use of " at large "
    " aggravated ", " exemplary ", and " punitive " before Rookes v. Barnard.
    To quote again from Professor McCormick's work, it was originally only in
    America that the distinction between " aggravated " damages (which take
    into account the defendant's bad conduct for compensating the plaintiff's
    injured feelings) and " punitive " or " exemplary " damage was really drawn.
    My own view is that no English case, and perhaps even in no statute,
    where the word " exemplary " or " punitive " or " aggravated " occurs before
    1964 can one be absolutely sure that there is no element of confusion
    between the two elements in damages. It was not until Lord Devlin's

    18

    speech in Rookes v. Barnard that the expressions "aggravated" on the
    one hand and " punitive " or " exemplary " on the other acquired separate
    and mutually exclusive meanings as terms of art on English law.

    The next point to notice is that it has always been a principle of English
    law that the award of damages when awarded must be a single lump
    sum in respect of each separate cause of action. Of course, where part of
    the damage can be precisely calculated it is possible to isolate part of it
    in the same cause of action. It is also possible and desirable to isolate
    different sums of damages receivable in respect of different torts, as was
    done here in respect of the proof copies. But I must say I view with some
    distrust the arbitrary subdivision of different elements of general damages
    for the same tort, as was done in Loudon v. Ryder [1953] 2 Q.B. 202, and
    even, subject to what I say later, what was expressly approved by Lord
    Devlin in Rookes v. Barnard at page 1228 for the laudable purpose of
    avoiding a new trial. In cases where the award of general damages con-
    tains a subjective element, I do not believe it is desirable or even possible
    simply to add separate sums together for different parts of the subjective
    element, especially where, as was done by agreement in this case, the sub-
    jective element relates under different heads to the same factor, in this
    case the bad conduct of the defendant. I would think with Lord Atkin in
    Ley v. Hamilton:

    " The 'punitive' element is not something which is or can " (italics
    mine) " be added to some known factor which is not punitive ",
    or in the words of Windeyer J. in Uren v. Fairfax & Sons Property Ltd.
    117C.L.R. 118 at p. 150:

    " The variety of the matters which, it has been held, may be con-
    " sidered in assessing damages for defamation must in many cases
    " mean that the amount of a verdict is the product of a mixture of
    " inextricable considerations ".

    (Italics again mine.)

    In other words the whole process of assessing damages where they are
    "at large" is essentially a matter of impression and not addition. When
    exemplary damages are involved, and even though, in theory at least, it may
    be possible to winnow out the purely punitive element, the dangers of
    double counting by a jury or a judge are so great that, even to avoid a new
    trial, I would have thought the dangers usually outweighed the advantages.
    Indeed, though it must be wholly illegitimate to speculate in such a matter,
    the thought crossed my mind more than once during the hearing that it may
    even have happened in this case.

    TERMINOLOGY

    This brings me to the question of terminology. It has been more than
    once pointed out the language of damages is more than usually confused.
    For instance, the term " special damage " is used in more than one sense
    to denominate actual past losses precisely calculated (as in a personal in-
    juries action), or " material damage actually suffered" as in describing
    the factor necessary to give rise to the cause of action in cases, including
    cases of slander, actionable only on proof of " special damage ". If it is
    not too deeply embedded in our legal language, I would like to see " special
    damage " dropped as a term of art in its latter sense and some phrase like
    " material loss " substituted. But a similar ambiguity occurs in actions of
    defamation, the expressions " at large ", " punitive ", " aggravated ", " re-
    tributory ", " vindictive " and " exemplary " having been used in, as I have
    pointed out, in extricable confusion.

    In my view it is desirable to drop the use of the phrase " vindictive "
    damages altogether, despite its use by the County Court judge in Williams
    v. Settle [1960] 1 W.L.R. 1072. Even when a purely punitive element is
    involved, vindictiveness is not a good motive for awarding punishment. In
    awarding " aggravated " damages the natural indignation of the court at the
    injury inflicted on the plaintiff is a perfectly legitimate motive in making
    a generous rather than a more moderate award to provide an adequate


    19

    solution. But that is because the injury to the plaintiff is actually greater
    and as the result of the conduct exciting the indignation demands a more
    generous solatium.

    Likewise the use of " retributory " is objectionable because it is ambiguous.
    It can be used to cover both aggravated damages to compensate the plaintiff
    and punitive or exemplary damages purely to punish the defendant or
    hold him up as an example.

    As between " punitive " or " exemplary ", one should, I would suppose,
    choose one to the exclusion of the other, since it is never wise to use two
    quite interchangeable terms to denote the same thing. Speaking for myself.
    I prefer "exemplary", not because "punitive" is necessarily inaccurate,
    but "exemplary" better expresses the policy of the law as expressed in
    the cases. It is intended to teach the defendant and others that " tort does
    " not pay" by demonstrating what consequences the law inflicts rather
    than simply to make the defendant suffer an extra penalty for what he has
    done, although that does, of course, precisely describe its effect.

    The expression " at large " should be used in general to cover all cases
    where awards of damages may include elements for loss of reputation,
    injured feelings, bad or good conduct by either party, or punishment, and
    where in consequence no precise limit can be set in extent. It would be
    convenient if, as the appellants' counsel did at the hearing, it could be
    extended to include damages for pain and suffering or loss of amenity.
    Lord Devlin uses the term in this sense in Rookes v. Barnard at p. 1221,
    when he defines the phrase as meaning all cases " where the award is not
    " limited to the pecuniary loss that can be specially proved ". But I suspect
    that he was there guilty of a neologism. If I am wrong, it is a convenient
    use and should be repeated.

    Finally, it is worth pointing out, though I doubt if a change of terminology
    is desirable or necessary, that there is danger in hypostatising "com-
    " pensatory ", " punitive ", " exemplary " or " aggravated " damages at all.
    The epithets are all elements or considerations which may, but need not,
    be taken into account in assessing a single sum. They are not separate heads
    to be added mathematically to one another.

    ANALYSIS OF ROOKES v. BARNARD

    This being said, it is necessary to analyse the decision in Rookes v.
    Barnard, a case, it must be remembered, of intimidation and not libel. The
    only actual decision on damages must be looked for on p. 1232 where
    Lord Devlin says:

    " I doubt whether the facts disclosed in the summing-up show even
    " a case for aggravated damages ; a different impression may be obtained
    " when the facts are fully displayed upon a new trial. At present
    " there seems to be no evidence that the respondents were motivated by
    " malevolence or spite against the appellant. They wronged him not
    " primarily to hurt him but so as to achieve their own ends.

    " If that had not been their dominating motive, then what they
    " did would not have been done in furtherance of a trade dispute and
    " the whole case has been fought on the basis that it was. It is said
    " that they persisted in believing that their closed shop position was
    " endangered by the appellant's conduct even when their official leaders
    " told them that it was not. Be it so; pig-headedness will not do.
    " Again, in so far as disclosed in the summing-up there was no evidence
    " of offensive conduct or of arrogance or insolence. It was, I think,
    " suggested that some impolite observations were made about the appel-
    " lant, but that is not enough ; in a dispute of this sort feelings run
    " high and more than hard words are needed for aggravated damages.
    " Mr. Silkin relied strongly on the flagrant breach of contract with
    " B.O.A.C. and the respondents' open disregard of their pledges and
    " their lack of consideration. But this was not conduct that affected the
    " appellant. He was no more distressed or humiliated by it than any
    " of B.O.A.C.'s passengers whose convenience, it might be said, and
    " interests were brushed aside by the respondents in their determination
    " to secure their object."


    20

    Although, as will be seen, I prefer much of what Lord Devlin said on
    the subject of exemplary damages to what has been said by his subsequent
    critics, and propose to follow it, the decision in Rookes v, Barnard must be
    viewed in the light of these conclusions. It is not verbally inspired. But
    it is a careful and valuable decision not lightly to be set aside.

    The passages in the report which have given rise to criticism and discussion
    go from page 1220 of the Law Report to the top of page 1231 and can
    be divided conveniently into the following parts.

    The first part consists in exposition of the authorities and principles which
    is contained in pages 1220 to 1225 where Lord Devlin begins to draw Ms
    conclusions.

    These conclusions, which form the second portion of his opinion, include
    the three " alleged categories " (1225-1227), the three " considerations " (1227-
    1230) and finally from 1230 to 1231 the commentary and exposition of the
    consequences of what he has said and these occupy the rest of the passage
    under discussion.

    WAS THE DECISION PER INCURIAM ?

    Now, I think J must protest at the outset at the theory that Lord Devlin,
    (or those members of the House who agreed with him) was speaking " per
    " incuriam ". I have already dealt with the argument that his conclusions
    did not follow the actual submissions of counsel on either side.

    Lord Devlin was, of course, perfectly well aware that, in drawing these
    conclusions from the authorities, he was making new law in the sense in
    which new law is always made when an important new precedent is
    established. Thus, he said:

    " I am well aware that what I am about to say will, if accepted, impose
    " limits not hitherto expressed on such awards and that there is powerful,
    " though not compelling, authority for allowing them a wider range. I
    " shall not, therefore, conclude what I have to say on the general
    " principles of law without returning to the authorities and making it
    " clear to what extent I have rejected the guidance they may be said to
    " afford."

    But a judge is always entitled to do this when the exact limits, rationale, and
    the extent of a principle is being discussed, and when those limits, rationale,
    and extent have never been authoritatively defined.

    Nor can it be said fairly that he had ignored Ley v. Hamilton (1935) 153
    L.T. 384. In fact he quoted from it at length and treated it, making allowance
    for the confusion in the legal terminology at the time to which I have already
    drawn attention, as a case of " aggravated " damages. I think he was right
    in so doing.; although I also think Salmon L.J. was almost certainly right
    in thinking that the inverted commas in which Lord Atkin puts " punitive "
    are not a guide to its meaning. The word is in inverted commas for the same
    reason that " real" in the earlier passage is in inverted commas. They are
    quotation marks and Lord Atkin was quoting the actual words in the
    judgment of Maugham L.J. which he was criticising.

    It is a fairer criticism of Lord Devlin to say that he did not mention
    E. Hulton & Co. v. Jones [1910] A.C. 20. Both Mr. Hewart in argument in
    that case and Lord Loreburn, L.C., in his speech (at page 24) which may
    have been ex tempore, reflect a view of the law of damages for libel
    apparently at variance with the law as Lord Devlin has now declared it to be.
    But, as I shall show, the difference is more apparent than real. It is difficult
    to square either Mr. Hewart's argument or the passage of Lord Loreburn's
    speech with the explicit admission made in the Court of Appeal and repeated
    in the facts stated on page 20 of the report, that the use of the name
    " Artemus Jones " by the editor and author was innocent, and it is on this
    basis that the case is normally cited as an authority. Judging the use made
    of the case in the Court of Appeal by their own criteria of Lord Devlin,
    the case is certainly not a binding authority on the law of exemplary damages.
    It was never argued as such, although the observations of Lord Loreburn,
    L.C., can be fairly used as testimony, and even as persuasive authority, for the


    21

    state of legal thinking at the time. In law, however, if Lord Devlin be right,
    the law of exemplary damages was still evolving, and Hulton v. Jones made
    no pretence at altering or defining it, nor did either counsel in the case argue
    the case in terms which raised the question in its present form.

    DID ROOKES v. BARNARD EXTEND EXEMPLARY
    DAMAGES TO FRESH TORTS?

    Having rejected the theory that Lord Devlin's speech can be pushed aside
    as having been delivered per incuriam, I hope I may now equally dispose of
    another misconception: I do not think that he was under the impression
    cither that he had completely rationalised the law of exemplary damages,
    nor by listing the " categories " was he intending, I would think, to add to
    the number of torts for which exemplary damages can be awarded; Thus I
    disagree with the dictum of Widgery L.J. in Mafo v. Adams [1970] 1 Q.B.
    548 at p. 558 (which, for this purpose, can be treated as an action for deceit)
    when he said:

    "As I understand Lord Devlin's speech, the circumstances in which
    " exemplary damages may be obtained have been drastically reduced;
    " but the range of offences in respect of which they may be granted has
    " been increased, and I see no reason since Rookes v. Barnard [1964]-
    " A.C.I 129 why, when considering a claim for exemplary damages, one
    " should regard the nature of the tort as excluding the claim."

    This would be a perfectly logical inference if Lord Devlin imagined that he-
    was substituting a completely rational code by enumerating the categories and
    stating the considerations. It is true, of course, that actions for deceit could
    well come within the purview of the second category. But I can see no
    reason for thinking that Lord Devlin intended to extend the category to
    deceit, and counsel on both sides before us were constrained to say that,
    though it may be paradoxical, they were unable to find a single case where
    either exemplary or aggravated damages had been awarded for deceit, despite
    the fact that contumelious, outrageous, oppressive, or dishonest conduct on
    the part of the defendant is almost inherently associated with it. The explana-
    tion may lie in the close connection that the action has always had with
    breach of contract (see the discussion in Mayne & MacGregor Chapter 41
    esp. at para. 968).

    WHERE SOLATIUM IS ENOUGH

    The true explanation of Rookes v. Barnard is to be found in the fact that
    where damages for loss of reputation are concerned, or where a simple, out-
    rage to the individual or to property is concerned, aggravated damages in
    the sense I have explained can, and should in every case lying outside the
    categories, take care of the exemplary element, and the jury should neither
    be encouraged nor allowed to look beyond as generous a solatium as is
    required for the injuria simply in order to give effect to feelings of indigna-
    tion. It is not that the exemplary element is excluded in such cases. It is
    precisely because in the nature of things it is and should be included in every
    such case that the jury should neither be encouraged nor allowed to look for
    it outside the solatium and then to add to the sum awarded another sum
    by way of penalty additional to the solarium. To do so would be to inflict
    a double penalty for the same offence.

    The surprising thing about Rookes v. Barnard is not that Lord Devlin
    restricted the award of exemplary damages viewed as an addition to or
    substitution for damages by way of solatium to the three so called categories,
    but that he allowed the three so called categories to exist by way of excep-
    tion to the general rule. That he did this is due at least in part to the fact
    that he felt himself bound by authority to do so, but partly also because
    he thought that there were cases where, over and above the figure awarded
    for loss of reputation, for injured feelings, for outraged morality, and to
    enable a plaintiff to protect himself against future calumny or outrage of a
    similar kind, an additional sum was needed to vindicate the strength
    of the law and act as a supplement to its strictly penal provisions—(cf. what
    he says at pp. 1226, 1230 of the report).


    22

    IS ROOKES v. BARNARD UNWORKABLE?

    I confess I am quite unable to see why such a view of the matter is " un-
    " workable ". As I have already pointed out, it has been worked in fact for
    nearly eight years. On the contrary, by insisting on a single sum being
    awarded for outrageous behaviour in nearly every case of tort, and allowing
    the jury full vent to their legitimate feelings within the proportions set by the
    injury involved, it seems to me that judge and jury are set an inherently less
    difficult task than if they were told first to take into account the aggravating
    factors, and then to impose an additional " fine " for the size of which they
    have neither the qualifications, nor any measure by which they can limit their
    discretion, particularly since neither counsel nor the judge can mention parti-
    cular figures which can have any relevance to the actual case. The difficulty
    consists, not in working the system of aggravated and purely compensatory
    damages, where they apply, as they do in almost every case of contumelious
    conduct under Lord Devlin's opinion, but in working a system of punitive
    damages alongside the system of aggravated and compensatory damage. This
    difficulty exists whether Lord Devlin's limitation to the categories be right
    or wrong and, if it were wrong, would exist in every case, and not only in a
    small minority of cases. The difficulty resides in the fact that the thinking
    underlying the two systems is as incompatible as oil and vinegar, the one
    based on what the plaintiff ought to receive, the other based on what twelve
    reasonable, but otherwise uninstructed, men and women think the defendant
    ought to pay.

    THE MEANING OF THE CATEGORIES

    As regards the meaning of the particular categories I have come to the
    conclusion that what Lord Devlin said was never intended to be treated
    as if his words were verbally inspired, and much of the criticism of them
    which has succeeded reports of the case has been based on interpretations
    which are false to the whole context and unduly literal even when taken in
    isolation from it.

    The only category exhaustively discussed before us was the second, since
    the first could obviously have no application to the instant case. But I
    desire to say of the first that I would be surprised if it included only servants
    of the Government in the strict sense of the word. It would, in my view,
    obviously apply to the police, despite A.-G. for New South Wales v. Per-
    petual Trustee Co. Ltd.
    [1955] AC 457, and almost as certainly to local
    and other officials exercising improperly rights of search or arrest without
    warrant, and it may be that in the future it will be held to include other
    abuses of power without warrant by persons purporting to exercise legal
    authority. What it will not include is the simple bully, not because the
    bully ought not to be punished in damages, for he manifestly ought, but
    because an adequate award of compensatory damages by way of solatium
    will necessarily have punished him. I am not prepared to say without
    further consideration that a private individual misusing legal powers of
    private prosecution or arrest as in Leith v. Pope [1779] 2 Wm.B.l. 1327,
    where the defendant had the plaintiff arrested and tried on a capital charge,
    might not at some future date be assimilated into the first category. I
    am not prepared to make an exhaustive list of the emanations of govern-
    ment which might or might not be included. But I see no reason to extend
    it beyond this field, to simple outrage, malice or contumelious behaviour.
    In such cases a properly directed jury will not find it necessary to differen-
    tiate between what the plaintiff ought to receive and what the defendant
    ought to pay, since the former will always include the latter to the extent
    necessary to vindicate the strength of the law.

    When one comes to the second category we reach a field which was
    more exhaustively discussed in the case before us. It soon became apparent
    that a broad rather than a narrow interpretation of Lord Devlin's words
    was absolutely essential, and that attempts to narrow the second category
    by a quotation out of context of one sentence from the passage wherein
    it is defined simply will not do. Lord Devlin founded his second category
    on a sequence of cases beginning with Bell v. Midland Railway Co. [1861]


    23

    10 C.B.N.S. 287, and on the judgment of Maule J. in Williams v. Currie
    (1845] 1 C.B, 841, 848, and the dictum of Martin B. in Crouch v. Great
    Northern Railway
    [1856] 11 EX 742, 759. None of these were examples
    of precise calculation of the balance sheet type.
    Then he said:—

    " It" (that is the motive of making a profit) " is a factor also that
    " is taken into account in damages for libel; one man should not be
    " allowed to sell another man's reputation for profit. Where a defen-
    " dant with a cynical disregard for a plaintiff's rights has calculated
    " that the money to be made out of his wrong-doing will probably
    " exceed the damages at risk, it is necessary for the law to show that it
    " cannot be broken with impunity. This category is not confined to
    " moneymaking in the strict sense. It extends to cases in which the
    " defendant is seeking to gain at the expense of the plaintiff some
    " object
    perhaps some property which he covetswhich either he
    " could not obtain at all or not obtain except at a price greater than
    " he wants to put down. Exemplary damages can properly be awarded
    " whenever it is necessary to teach a wrongdoer that tort does not pay."
    (Italics mine.)

    Even a casual reading of the above passage shows that the sentence:
    " Where a defendant, with a cynical disregard for a plaintiff's rights has
    " calculated that the money to be made out of his wrongdoing will probably
    " exceed the damages at risk, it is necessary for the law to show that it
    " cannot be broken with impunity " is not intended to be exhaustive but
    illustrative, and is not intended to be limited to the kind of mathematical
    calculations to be found on a balance sheet. The sentence must be read
    in its context. The context occurs immediately after the sentence: "One
    " man should not be allowed to sell another man's reputation for profit",
    where the word " calculation " does not occur. The context also includes
    the final sentence: " Exemplary damages can properly be awarded whenever
    " it is necessary to teach a wrongdoer that tort does not pay ". The whole
    passage must be read sensibly as a whole, together with the authorities on
    which it is based.

    It is true, of course, as was well pointed out by Widgery J. in Manson v.
    Associated Newspapers Ltd. [1965] 1 W.L.R. 1038 at p. 1045 that the mere
    fact that a tort, and particularly a libel, is committed in the course of a
    business carried on for profit is not sufficient to bring a case within the
    second category. Nearly all newspapers, and most books, are published for
    profit. What is necessary in addition is (i) knowledge that what is proposed
    to be done is against the law or a reckless disregard whether what is pro-
    posed to be done is illegal or legal, and (ii) a decision to carry on doing it
    because the prospects of material advantage outweigh the prospects of
    material loss. It is not necessary that the defendant calculates that the
    plaintiff's damages if he sues to judgment will be smaller than the defendant's
    profit. This is simply one example of the principle. The defendant may
    calculate that the plaintiff will not sue at all because he has not the money,
    (I suppose the plaintiff in a contested libel action like the present must be
    prepared nowadays to put at least £30,000 at some risk), or because he
    may be physically or otherwise intimidated. What is necessary is that the
    tortious act must be done with guilty knowledge for the motive that the
    chances of economic advantage outweigh the chances of economic, or
    perhaps physical, penalty.

    At this stage one must examine some of the counter arguments which
    found favour in the Court of Appeal. How, it may be asked, about the
    late Mr. Rachman, who is alleged to have used hired bullies to intimidate
    statutory tenants by violence or threats of violence into giving vacant
    possession of their residences and so placing a valuable asset in the hands of
    the landlord? My answer must be that if this is not a cynical calculation
    of profit and cold-blooded disregard of a plaintiff's rights. I do not know
    what is. It is also argued that the second category does not take care of
    the case a man who pursues a potential plaintiff to ruin out of sheer hatred
    and malice. The answer is that it does not do so because this is already taken

    24

    care of in the full compensation or solatium for the injuria involved in which
    the jury can give full rein to their feeling of legitimate indignation without
    going outside the bounds of compensatory damages in the sense in which
    I have explained the phrase, that is, damages of sufficient size to enable
    the plaintiff to point to the size of the award to indicate the baselessness
    of the false charge, and damages for the outrage inflicted in exact proportion
    as it was unprovoked, unatoned for, or malicious. I would have thought the
    second category was ample to cover any form of injury committed within
    the scope of those torts for which aggravated and exemplary damages may
    be awarded where the motive was material advantage. Mafo v. Adams
    ([1970] 1 Q.B. 548) is not really an authority to the contrary, although I
    would have thought that the damages there awarded for inconvenience,
    breach of covenant, and loss of a regulated tenancy were perhaps at present
    day values too small for the wrong committed. What was at issue in
    Mafo v. Adams was the award of exemplary damages in an action for
    deceit (see from Sachs L.J. at p. 555) and this, in the event, was never
    decided. What was decided in that case was that the plaintiff had not dis-
    charged the onus of proof that the defendant's motives were such as to bring
    the case within the second category. This is clear from the fact that both
    Sachs and Widgery L.JJ. based their judgments on a passage from the deci-
    sion of the county court judge, where he said: " The defendant's reasons for
    " his actions ar obscure " (see per Sachs L.J. at p. 556, and per Widgery L.J.
    at p. 559). I am far from saying that in so far as it could have been shown
    that the defendant was actuated by gain, and if the action had been one
    of trespass, exemplary damages could not have been awarded under the
    second category, and even though in the absence of authority I am of
    opinion that exemplary damages cannot be awarded in an action for deceit,
    I cannot claim that the matter has been finally determined.

    The main criticisms of Lord Devlin's speech are thus shown to have been
    unfounded. That he went beyond the existing law he had no doubt, and
    nor have 1. But, as I have shown, he was entitled to do so It may very
    well be that, in deciding in favour of the two exceptional categories, he was
    making an unnecessary concession to tradition. But he made the concession
    after a careful analysis of the authorities and, speaking for myself, and given
    the cautious approach indicated in Lord Gardiner's practice declaration, and
    by a majority of this House in Jones v. Secretary of State for Social Services,
    I do not think there is any reason for disturbing them. I regard the Australian
    cases, and in particular Uren v. Fairfax & Sons Pty. Ltd., as deciding no
    more than on the particular facts of that case the award of exemplary
    damages was not acceptable. In so far as they claim to establish that
    exemplary damages can be awarded for any contumelious disregard of the
    plaintiff's rights I may not, of course, comment so far as regards the law of
    Australia, but, so far as regards the law of England, I would say that an
    adequate award of compensatory damages in such a case must of necessity
    include, and perhaps more than include, any punitive or exemplary element.
    The proposition, as a proposition, would have been perfectly acceptable so
    long as the looser terminology prevalent before Rookes v. Barnard was in
    use. So far as regards the more strict terminology now to be employed, the
    proposition is not to be treated as acceptable in the English Courts.

    Before turning to the so-called " considerations " I desire to say a word
    concerning the decision in Williams v. Settle [I960] 2 All E.R. 806 and
    Loudon v. Ryder [1953J 2 Q.B. 202, upon which Lord Devlin also com-
    mented. In Williams v. Settle was a case under s. 17(3) of the Copright Act
    1956. I agree with Lord Devlin that it is for consideration in the light of
    subsequent cases whether that section, which does not use the phrase " exem-
    plary damages", does in fact give a right to damages which are exemplary
    in the narrower sense used since Rookes v. Barnard. If it does, the case
    should be regarded as a second category case, since the defendant's motive
    was profit. If it does not, and if it is to be regarded as still authoritative,
    Williams v. Settle can only be regarded as an extreme example of aggravated
    damages, though the language of the county court judge was so strong as to
    lead me to think that I would not myself have been prepared to make so
    large an award.


    25

    Loudon v. Ryder is the earliest instance which I have been able to find
    where a split award was made of exemplary and compensatory damages for
    the same tort, and the split was made in circumstances which are not alto-
    gether plain from the report, after an award of a lump sum had been
    announced. What would have happened if Devlin J. (as he was) had summed
    up to the jury in favour of a generous award of aggravated damages on the
    lines of his later speech in Rookes v. Barnard is, of course, a question which
    no-one can possibly answer. The answer might well have been, substituting
    " trespass " for " defamation " what Windeyer J. said in Uren v. John Fairfax
    and Sons Pty. Ltd.,
    at p. 152:

    " Telling the jury in a defamation action that compensation is to be
    " measured having regard to aggravating circumstances the result of the
    " defendant's conduct might not result in a verdict different from that
    " which they would return if they were told that because of that conduct
    " they could give damages by way of example."

    What is certain is that the summing-up by Devlin J. in that case could not,
    as Lord Devlin himself surmised, now survive the analysis by Lord Devlin in
    Rookes v. Barnard of the theoretical basis of exemplary damages in the
    sense in which the term should now be employed.

    THE "CONSIDERATIONS"

    I turn now to Lord Devlin's three " considerations ". It is worth pointing
    out that neither the Court of Appeal nor any of the counsel who appeared
    before us attacked these as such. Nor, so far as I am aware, have these
    been attacked in the cases in which Commonwealth judges have felt con-
    strained to criticise Rookes v. Barnard. This alone would be a good reason
    against a simple return to the status quo ante proposed by the Court of
    Appeal, because the first and second " considerations " coupled with the
    passage from which I have already quoted on page 1225 are themselves, and
    quite independently of the " categories ", an important, and I think original,
    contribution to the law on exemplary damages. Whilst, as I have indicated,
    I cannot myself follow what Lord Devlin says on the second category so
    far as regards the right of appellate courts to interfere with jury awards on
    principles different from the traditional nor, I think, with the proposal that
    Benham v. Gambling offers a precedent for arbitrary limits imposed by the
    judiciary in defamation cases, I regard it as extremely important that, for the
    future, judges should make sure in their direction to juries that the jury is
    fully aware of the danger of an excessive award. A judge should first rule
    whether evidence exists which entitles a jury to find facts bringing a case
    within the relevant categories, and, if it does not, the question of exemplary
    damages should be withdrawn from the jury's consideration. Even if it is
    not withdrawn from the jury, the judge's task is not complete. He should
    remind the jury

    (i) That the burden of proof rests on the plaintiff to establish the facts
    necessary to bring the case within the categories.

    (ii) That the mere fact that the case falls within the categories does not
    of itself entitle the jury to award damages purely exemplary in
    character. They can and should award nothing unless

    (iii) They are satisfied that the punitive or exemplary element is not
    sufficiently met within the the figure which they have arrived at for
    the plaintiff's solatium in the sense I have explained and

    (iv) That, in assessing the total sum which the defendant should pay,
    the total figure awarded should be in substitution for and not in
    addition to the smaller figure which would have been treated as
    adequate solatium, that is to say, should be a round sum larger than
    the latter and satisfying the jury's idea of what the defendant ought
    to pay.

    (v) I would also deprecate, as did Lord Atkin in Ley v. Hamilton, the
    use of the word " fine " in connexion with the punitive or exemplary
    element in damages, where it is appropriate. Damages remain a
    civil, not a criminal remedy, even where an exemplary award is

    26

    appropriate, and juries should not be encouraged to lose sight of
    the fact that, in making such an award they are putting money into
    a plaintiff's pocket, and not contributing to the rates, or to the
    revenues of Central Government.

    If this be correct, the agreed list of questions submitted to the jury in the
    present case is not the ideal procedure for ensuring that the jury keep their
    verdict within bounds. They should normally be asked to award a single
    sum whether as solatium or as exemplary damages. If, in order to avoid a
    second trial, they are asked a second question, they should be asked, in
    the event of their awarding exemplary damages, what smaller sum they would
    have awarded if they had confined themselves to solatium in the sense
    explained.

    It follows from what I have said that I am not prepared to follow the
    Court of Appeal in its criticisms of Rookes v. Barnard, which I regard as
    having imposed valuable limits on the doctrine of exemplary damages as
    they had hitherto been understood in English law and clarified important
    questions which had previously been undiscussed or left confused. From one
    point of view, there is much to be said for the interpretation put upon Lord
    Devlin's speech by Windeyer J. in Uren v. John Fairfax & Son Pty, Ltd. at
    p. 152 immediately before the passage I have just quoted:

    " What the House of Lords has now done is, as I read what was said,
    " to produce a more distinct terminology. Limiting the scope of terms
    " that often were not distinguished in application makes possible an
    " apparently firm distinction between aggravated compensatory damages
    " and exemplary or punitive damages."

    But it is not to be inferred from this that the ruling in Rookes v. Barnard
    is a pure question of semantics. It may well be true that in most individual
    cases the precise terminology in which the question is asked of the jury
    may not make much difference to the amount of the award. Both Windeyer
    J. in the passage just cited and Lord Devlin at page 1230 were evidently
    of this view. But the following positive advantages can be gained from
    adhering to the rules he laid down, if properly interpreted: —

    1. The danger of double counting, of adding a pure "fine" to what
      has already been awarded as solatium, without regarding
      the deterrent or punitive effect of the latter, has been eliminated,
      or at least reduced to a minimum.

    2. In all cases where the categories do not apply, the jury must be
      told to confine the punitive or deterrent element in their thinking
      within the limits of a fair solatium. In other words, to borrow the
      language, though not the sentiments, expressed in Forsdike v. Stone
      (1868) (L.R. 3 C.P. 607, 611) the jury must be told to consider
      only what the plaintiff should receive after giving full allowance
      to the need to re-establish his reputation and for the outrage inflicted
      upon him, and not what the defendant should pay independently of
      this consideration.

    3. In cases where the categories do apply, juries can be given directions
      a little more informative and regulatory than was the case up to
      and including the new analysis.

    Rookes v. Barnard has not perhaps proved quite the definitive statement
    of the law which was hoped when it was decided. This is often the case.
    I remember with suitably mixed feelings of filial piety and inherited caution,
    that in his judgment in Addie v. Dumbreck [1929] A.C.358 my father
    believed he was putting a final end to doubts about the limits of occupiers'
    liability to trespassers, licensees, and invitees. But the way forward lies
    through a considered precedent and not backwards from it. I would hope
    very much that, in the light of observations made on Rookes v. Barnard
    in this case, Commonwealth Courts might see fit to modify some of their
    criticisms of it. I do not know how far it can be of value in the United
    States of America where it seems to me that the decisions of the Supreme
    Court have been influenced greatly by the terms of the First Amendment
    to the Constitution, and by the unsatisfactory rules prevalent in American

    27

    Courts as to the recovery of costs. However that may be, we cannot depart
    from Rookes v. Barnard here. It was decided neither per incuriam nor
    ultra vires this House; we could only depart from it by tearing up the
    doctrine of precedent, and this was not the object of this House in assuming
    the powers adopted by the practice declaration of 1966.

    Lest I should have been thought to have forgotten it, I would observe
    that the Court of Appeal overruled the decision of Lawton J. that a claim
    for exemplary damages should be pleaded. I am content to accept their
    view on the basis of the present practice. But in the light of the decision
    of this House in the instant case I propose to refer to the Rule Committee
    the question whether in the light of Rookes v. Barnard and the present
    decision the present practice should not be altered. There is much to be
    said for the view that a defendant against whom a claim of this kind is
    made ought not to be taken by surprise.

    My Lords, it follows from what I have said in my opinion this appeal
    should be dismissed and that costs should follow the event.

    Lord Reid

    my lords,

    The Appellants published a book "The Destruction of Convoy P.Q.17 "
    which according to their advertisement on the dust jacket was the result of
    five intensive years of meticulous research by the author. It contained many
    statements about the conduct of the Respondent who was the naval officer in
    command of the convoy. He sued the Appellants and the author for damages
    for libel. After a trial which lasted for some seventeen days a number of
    questions were left to the jury. They found that the words complained of
    were defamatory of the Respondent and were not true in substance and in
    fact. They were asked what compensatory damages they awarded, and they
    awarded £15,000. Then they were asked " Has the plaintiff proved that he
    is entitled to exemplary damages? " Their answer was yes against both
    defendants. Next they were asked " What additional sum should be awarded
    him by way of exemplary damages? " Their answer was £25,000. So
    judgment was entered against both defendants for £40,000.

    Others of your Lordships have dealt in detail with these statements and I
    do not think it necessary to say more than that in my opinion the jury were
    well entitled to find that they conveyed imputations of the utmost gravity
    against the character and conduct of the Respondent as a naval officer.
    Indeed the Appellants do not now seek to disturb the award of £15,000 as
    " compensatory damages". Their contention before your Lordships is
    twofold: first that the jury were not entitled to award any exemplary damages
    and secondly that the amount awarded under this head was much too great.
    As no objection was taken at the time to the form of the question there
    cannot now be any objection to the jury having been asked in this case to
    consider separately compensatory and exemplary damages.

    The whole matter of exemplary damages was dealt with in this House in
    Rookes v. Barnard [1964] AC 1129 in a speech by Lord Devlin with which
    all who sat with him, including myself, concurred. The Court of Appeal
    dealing with the present case held that if they applied the law as laid down in
    Rookes v. Barnard the Appellants' appeal must fail and the jury's verdict
    must stand. They could have stopped there, but they chose to go on and
    attack the decision of this House as bad law. They were quite entitled to
    state their views and reasons for reaching that conclusion but very unfortu-
    nately Lord Denning M.R., appearently with the concurrence of his two
    colleagues, went on to say: " This case may, or may not, go on appeal to
    " the House of Lords. I must say a word, however, for the guidance of judges
    " who will be trying cases in the meantime. I think the difficulties presented
    " by Rookes v. Barnard are so great that the judges should direct the juries
    " in accordance with the law as it was understood before Rookes v. Barnard.
    " Any attempt to follow Rookes v. Barnard is bound to lead to confusion."

    It seems to me obvious that the Court of Appeal failed to understand Lord
    Devlin's speech, but whether they did or not I would have exepected them to

    28

    know that they had no power to give any such direction and to realise the
    impossible position in which they were seeking to put those judges in advising
    or directing them to disregard a decision of this House.

    That aberration of the Court of Appeal has made it necessary to re-
    examine the whole subject and incidentally has greatly increased the expense
    to which the parties to this case have been put.

    The very full argument which we have had in this case has not caused me
    to change the views which I held when Rookes v. Barnard was decided or to
    disagree with any of Lord Devlin's main conclusions. But it has convinced
    me that I and my colleagues made a mistake in simply concurring with Lord
    Devlin's speech. With the passage of time I have come more and more firmly
    to the conclusion that it is never wise to have only one speech in this House
    dealing with an important question of law. My main reason is that experience
    has shewn that those who have to apply the decision to other cases and still
    more those who wish to criticise it seem to find it difficult to avoid treating
    sentences and phrases in a single speech as if they were provisions in an Act
    of Parliament. They do not seem to realise that it is not the function of
    noble and learned Lords or indeed of any judges to frame definitions or to
    lay down hard and fast rules. It is their function to enunciate principles and
    much that they say is intended to be illustrative or explanatory and not to be
    definitive. When there are two or more speeches they must be read together
    and then it is generally much easier to see what are the principles involved
    and what are merely illustrations of it.

    I am bound to say that, in reading the various criticisms of Lord Devlin's
    speech to which we have been referred, I have been very surprised at the fail-
    ure of its critics to realise that it was intended to state principles and not to
    lay down rules. But I suppose that those of us who merely concurred with
    him ought to have foreseen that this might happen and to have taken steps to
    prevent it. So I shall try to repair my omission by stating now in a different
    way the principles which I, and I believe also Lord Devlin, had in mind. I do
    not think that he would have disagreed with any important part of what I am
    now about to say.

    Damages for any tort are or ought to be fixed at a sum which will compen-
    sate the plaintiff, so far as money can do it, for all the Injury which he has
    suffered. Where the injury is material and has been ascertained it is generally
    possible to assess damages with some precision. But that is not so where
    he has been caused mental distress or when his reputation has been attacked—
    where to use the traditional phrase he has been held up to hatred, ridicule or
    contempt. Not only is it impossible to ascertain how far other people's minds
    have been affected, it is almost impossible to equate the damage to a sum of
    money. Any one person trying to fix a sum as compensation will probably
    find in his mind a wide bracket within which any sum could be regarded by
    him as not unreasonable—and different people will come to different con-
    clusions. So in the end there will probably be a wide gap between the sum
    which on an objective view could be regarded as the least and the sum which
    could be regarded as the most to which the plaintiff is entitled as compensa-
    tion.

    It has long been recognised that in determining what sum within that
    bracket should be awarded, a jury, or other tribunal, is entitled to have re-
    gard to the conduct of the defendant. He may have behaved in a high-handed
    malicious, insulting or oppressive manner in committing the tort or he or his
    counsel may at the trial have aggravated the injury by what they there said.
    That would justify going to the top of the bracket and awarding as damages
    the largest sum that could fairly be regarded as compensation.

    Frequently in cases before Rookes v. Barnard when damages were increased
    in that way but were still within the limit of what could properly be regarded
    as compensation to the plaintiff, it was said that punitive, vindictive or ex-
    emplary damages were being awarded. As a mere matter of language that
    was true enough. The defendant was being punished or an example was being
    made of him by making him pay more than he would have had to pay if his

    29

    conduct had not been outrageous. But the damages though called punitive
    were still truly compensatory: the plaintiff was not being given more than his
    due.

    On the other hand when we came to examine the old cases we found a
    number which could not be explained in that way. The sums awarded as
    damages were more—sometimes much more—than could on any view be
    justified as compensatory, and Courts, perhaps without fully realising what
    they were doing, appeared to have permitted damages to be measured not by
    what the plaintiff was fairly entitled to receive but by what the defendant
    ought to be made to pay as punishment for his outrageous conduct.

    That meant that the plaintiff, by being given more than on any view could
    be justified as compensation, was being given a pure and undeserved windfall
    at the expense of the defendant, and that in so far as the defendant was being
    required to pay more than could possibly be regarded as compensation he was
    being subjected to pure punishment.

    I thought and still think that that is highly anomalous. It is confusing
    the function of the civil law which is to compensate with the function of the
    criminal law which is to inflict deterrent and punitive penalties. Some objec-
    tion has been taken to the use of the word fine to denote the amount by which
    punitive or exemplary damages exceed anything justly due to the plaintiff. In
    my view the word fine is an entirely accurate description of that part of any
    award which goes beyond anything justly due to the plaintiff and is purely
    punitive.

    Those of us who sat in Rookes v. Barnard thought that the loose and con-
    fused use of words like punitive and exemplary and the failure to recognise
    the difference between damages which are compensatory and damages which
    go beyond that and are purely punitive had led to serious abuses, so we took
    what we thought was the best course open to us to limit those abuses.

    Theoretically we might have held that as purely punitive damages had
    never been sanctioned by any decision of this House (as to which I shall say
    more later) there was no right under English law to award them. But that
    would have been going beyond the proper function of this House. There are
    many well established doctrines of the law which have not been the subject of
    any decision by this House. We thought we had to recognise that it had be-
    come an established custom in certain classes of case to permit awards of
    damages which could not be justified as compensatory, and that that must re-
    main the law. But we thought and I still think it well within the province of
    this House to say that that undesirable anomaly should not be permitted in
    any class of case where its use was not covered by authority.

    In order to determine the classes of case in which this anomaly had
    become established it was of little use to look merely at the words which
    had been used by judges because, as I have said, words like punitive and
    exemplary were often used with regard to damages which were truly com-
    pensatory. We had to take a broad view of the whole circumstances.

    I must now deal with those parts of Lord Devlin's speech which have
    given rise to difficulties. He set out two categories of cases which in our
    opinion comprised all or virtually all the reported cases in which it was
    clear that the Court had approved of an award of a larger sum of damages
    than could be justified as compensatory. Critics appear to have thought
    that he was inventing something new. That was not my understanding.
    We were confronted with an undesirable anomaly. We could not abolish
    it. We had to choose between confining it strictly to classes of cases
    where it was firmly established, although that produced an illogical result,
    or permitting it to be extended so as to produce a logical result. In
    my view it is better in such cases to be content with an illogical result
    than to allow any extension.

    It will be seen that I do not agree with Lord Devlin's view that in
    certain classes of case exemplary damages serve a useful purpose in vindi-
    cating the strength of the law. That view did not form an essential step
    in his argument. Concurrence with the speech of a colleague does not
    mean acceptance of every word which he has said. If it did there would


    30

    be far fewer concurrences than there are. So I did not regard disagreement
    on this side issue as preventing me from giving my concurrence.

    I think that the objections to allowing juries to go beyond compensatory
    damages are overwhelming. To allow pure punishment in this way contra-
    venes almost every principle which has been evolved for the protection of
    offenders. There is no definition of the offence except that the conduct
    punished must be oppressive, high-handed, malicious, wanton or its like—
    terms far too vague to be admitted to any criminal code worthy of the
    name. There is no limit to the punishment except that it must not be
    unreasonable. The punishment is not inflicted by a judge who has experi-
    ence and at least tries not to be influenced by emotion: it is inflicted
    by a jury without experience of law or punishment and often swayed by
    considerations which every judge would put out of his mind. And there
    is no effective appeal against sentence. All that a reviewing court can do
    is to quash the jury's decision if it thinks the punishment awarded is more
    than any twelve reasonable men could award. The Court cannot substitute
    its own award. The punishment must then be decided by another jury
    and if they too award heavy punishment the Court is virtually powerless.
    It is no excuse to say that we need not waste sympathy on people who
    behave outrageously. Are we wasting sympathy on vicious criminals when
    we insist on proper legal safeguards for them? The right to give punitive
    damages in certain cases is so firmly embedded in our law that only
    Parliament can remove it. But I must say that I am surprised by the
    enthusiasm of Lord Devlin's critics in supporting this form of palm tree
    justice.

    Lord Devlin's first category is set out on page 1226. He said—" The
    " first category is oppressive, arbitrary or unconstitutional action by the
    " servants of the government. I should not extend this category—I say
    " this with particular reference to the facts of this case—to oppressive action
    " by private corporations or individuals". This distinction has been
    attacked on two grounds: first, that it only includes Crown servants and
    excludes others like the police who exercise governmental functions but are
    not Crown servants and, secondly, that it is illogical since both the harm to
    the plaintiff and the blameworthiness of the defendant may be at least
    equally great where the offender is a powerful private individual. With
    regard to the first I think that the context shews that the category was
    never intended to be limited to Crown servants. The contrast is beween
    " the government" and private individuals. Local government is as much
    government as national government, and the police and many other persons
    are exercising governmental functions. It was unnecessary in Rookes v.
    Barnard to define the exact limits of the category. I should certainly
    read it as extending to all those who by common law or statute are exercis-
    ing functions of a governmental character.

    The second criticism is I think misconceived. I freely admit that the
    distinction is illogical. The real reason for the distinction was, in my view,
    that the cases shewed that it was firmly established with regard to servants
    of " the government" that damages could be awarded against them beyond
    any sum justified as compensation, whereas there was no case except one
    that was overruled where damages had been awarded against a private bully
    or oppressor to an amount that could not fairly be regarded as compensa-
    tory, giving to that word the meaning which I have already discussed. I
    thought that this House was therefore free to say that no more than that
    was to be awarded in future.

    We are particularly concerned in the present case with the second
    category. With the benefit of hindsight I think I can say without disrespect
    to Lord Devlin that it is not happily phrased. But I think the meaning is
    clear enough. An ill disposed person could not infrequently deliberately
    commit a tort in contumelious disregard of another's rights in order to obtain
    an advantage which would outweigh any compensatory damages likely to
    be obtained by his victim. Such a case is within this category. But then
    it is said, suppose he commits the tort not for gain but simply out of malice
    why should he not also be punished. Again I freely admit there is no
    logical reason. The reason for excluding such a case from the category is

    31

    simply that firmly established authority required us to accept this category
    however little we might like it, but did not require us to go farther. If
    logic is to be preferred to the desirability of cutting down the scope for
    punitive damages to the greatest extent that will not conflict with established
    authority then this category must be widened. But as I have already said
    I would, logic or no logic, refuse to extend the right to inflict exemplary
    damages to any class of case which is not already clearly covered by
    authority. On that basis I support this category.

    In my opinion, the conduct of both defendants in this case was such
    that the jury were clearly entitled, if properly directed, to hold that it brought
    them within the second category. Again, I do not intend to cover ground
    already covered by my noble and learned friends. So I say no more than
    that the jury were fully entitled to hold that the Appellants knew when
    they committed this tort that passages in this book were highly defamatory of
    the Respondent and could not be justified as true and that it could properly
    be inferred that they thought that it would pay them to publish the book
    and risk the consequences of any action the Respondent might take. It
    matters not whether they thought that they could escape with moderate
    damages or that the enormous expense involved in fighting an action of this
    kind would prevent the Respondent from pressing his claim.

    It was argued that to allow punitive damages in this case would hamper
    other publishers or limit their freedom to conduct their business because it
    can always be inferred that publishers publish any book because they expect
    a profit from it. But punitive damages could not be given unless it was
    proved that they knew that passages in the book were libellous and could
    not be justified or at least deliberately shut their eyes to the truth. I
    would hope that no publisher would publish in such circumstances. There
    is no question of curtailing the freedom of a reputable publisher.

    The next passage in Lord Devlin's speech which has caused some difficulty
    is what has been called the " if but only if " paragraph on page 1228. I see
    no difficulty in it but again I shall set out the substance of it in my own
    words. The difference between compensatory and punitive damages is
    that in assessing the former the jury or other tribunal must consider how
    much the plaintiff ought to receive whereas in assessing the latter they must
    consider how much the defendant ought to pay. It can only cause confusion
    if they consider both questions at the same time. The only practical way
    to proceed is first to look at the case from the point of view of compensating
    the plaintiff. He must not only be compensated for proved actual loss but
    also for any injury to his feelings and for having had to suffer insults
    indignities and the like. And where the defendant has behaved outrageously
    very full compensation may be proper for that. So the tribunal will fix
    in their minds what sum would be proper as compensatory damages. Then
    if it has been determined that the case is a proper one for punitive damages
    the tribunal must turn its attention to the defendant and ask itself whether
    the sum which it has already fixed as compensatory damages is or is not
    adequate to serve the second purpose of punishment or deterrence. If they
    think that that sum is adequate for the second purpose as well as for the
    first they must not add anything to it. It is sufficient both as compensatory
    and as punitive damages. But if they think that sum is insufficient as a
    punishment then they must add to it enough to bring it up to a sum sufficient
    as punishment. The one thing which they must not do is to fix sums as
    compensatory and as punitive damages and add them together. They must
    realise that the compensatory damages are always part of the total
    punishment.

    It was argued that the jury were not properly directed by the trial judge
    on this matter. I agree with your Lordships that that argument must fail.
    A judge's direction to a jury is not to be considered in vacuo. It must be
    read in light of all the circumstances as they then existed and I cannot
    believe that the jury were left in any doubt as to how they must deal
    with this matter.

    Next there are questions arising from the fact there were two defendants.
    When dealing with compensatory damages the law is quite clear. There was

    32

    one tort of which both defendants were guilty. So one sum is fixed as
    compensation and judgment is given for that sum against both defendants
    leaving it to the plaintiff to sue whichever he chooses and then leaving it to
    the defendant who has paid to recover a contribution if he can from the
    other.

    But when we come to punitive damages the position is different. Although
    the tort was committed by both only one may have been guilty of the
    outrageous conduct or if two or more are so guilty they may be guilty in
    different degrees or owing to one being rich and another poor punishment
    proper for the former may be too heavy for the latter.

    Unless we are to abandon all pretence of justice, means must be found
    to prevent more being recovered by way of punitive damages from the least
    guilty than he ought to pay. We cannot rely on his being able to recover
    some contribution from the other. Suppose printer author and publisher
    of a libel are all sued. The printer will probably be guiltless of any out-
    rageous conduct but the others may deserve punishment beyond compen-
    satory damages. If there has to be one judgment against all three then it
    would be very wrong to allow any element of punitive damages at all to be
    included because very likely the printer would have to pay the whole and
    the others might not be worth suing for a contribution.

    The only logical way to deal with the matter would be first to have a
    judgment against all the defendants for the compensatory damages and
    then to have a separate judgment against each of the defendants for such
    additional sum as he should pay as punitive damages. I would agree that
    that is impracticable. The fact that it is impracticable to do full justice
    appears to me to afford another illustration of how anomalous and indefen-
    sible is the whole doctrine of punitive damages. But as I have said before
    we must accept it and make the best we can of it.

    So, in my opinion, the jury should be directed that, when they come to
    consider what if any addition is to be made to the compensatory damages
    by way of punitive damages, they must consider each defendant separately.
    If any one of the defendants does not deserve punishment or if the compen-
    satory damages are in themselves sufficient punishment for any one of the
    defendants, then they must not make any addition to the compensatory
    damages. If each of the defendants deserves more punishment than is
    involved in payment of the compensatory damages then they must determine
    which deserves the least punishment and only add to the compensatory
    damages such additional sum as that defendant ought to pay by way of
    punishment.

    I do not pretend that that achieves full justice but it is the best we can
    do without separate awards against each defendant.

    It was argued that here again there was misdirection of the jury because
    all that was not made plain to them. But again I agree with your Lordships
    that in the whole circumstances we ought not to hold the direction of the
    learned trial judge to be inadequate. Again the jury can have been in no
    doubt as to what was required of them.

    There remains what is perhaps the most difficult question in this case—
    whether the additional award of £25,000 as punitive damages is so excessive
    that we can interfere. I think it was much too large, but that is not the test.
    I would like to be able to hold that the Court has more control over an
    award of punitive damages than it has over an award of compensatory
    damages. As regards the latter it is quite clear that a Court can only interfere
    if satisfied that no twelve reasonable men could have awarded so large a
    sum and the reason for that is plain. The Court has no power to substitute
    its own assessment for the verdict of a jury. If it interferes it can only send
    the matter back to another jury. So before it can interfere it must be well
    satisfied that no other jury would award so large a sum. I do not see how
    this House could arrogate itself any wider power with regard to punitive
    damages. We could not deprive the plaintiff of his right to a new trial so
    we must adhere to the established test. Any diminution or abolition of the

    33

    functions of a jury in libel cases can only come from Parliament. If this
    case brings nearer the day when Parliament does take action I for one shall
    not be sorry.

    Whether or not we can interfere with this award is a matter which is not
    capable of much elaboration. In considering how far twelve reasonable men
    might go, acting as jurors commonly do act, one has to bear in mind how
    little guidance the Court is entitled to give them. All that they can be told
    is that they must not award a sum which is unreasonable. In answer to
    questions whether anything more definite could properly be said neither
    counsel in this case was able to make any suggestion and I have none to
    offer. The evidence in this case is such that the jury could take an extremely
    unfavourable view of the conduct of both defendants. I do not say that
    they ought to have done so, but they were entitled to do so. And they must
    have done so. I find it impossible to say that no jury of reasonable men.
    inexperienced but doing their best with virtually no guidance, could reach
    the sum of £25,000. Or, to put it in another way, I would feel no confidence
    that if the matter were submitted to another jury they must reach a substan-
    tially different result. So with considerable regret I must hold that it would
    be contrary to our existing law and practice if this House refused to uphold
    this verdict.

    It is true that in this case the parties agreed that if the verdict for £25,000
    were quashed they would leave it to this House to substitute another figure.
    But that agreement cannot justify us in doing otherwise than we would
    have done if the parties had stood on their legal rights. The obvious reason
    for that agreement was a common desire to avoid the enormous expense of
    a new trial. This is not the first occasion on which I have felt bound to
    express my concern about the undue prolixity and expense of libel actions.
    I would not blame any individuals. It may arise from the conduct of a
    trial before a jury being more expensive than a trial before a judge. If so
    that is an additional argument for taking these cases away from juries. Or
    it may be that it suits wealthy publishers of newspapers, books and periodicals
    that the cost of fighting a libel action is so great that none but a person
    with large financial backing can sue them effectively. Whatever be the
    reason the costs of this case have already reached a figure which many
    laymen would call scandalous. I think that those in a position to take
    effective action might take note.

    Finally, I must say something about a strange misconception which appears
    in the judgments of the Court of Appeal in this case. Somehow they reached
    the conclusion that the decision of this House in Rookes v. Barnard was
    made per incuriam, was ultra vires, and had produced an unworkable
    position. It must be noted that in at least three earlier cases the Court of
    Appeal were able without difficulty or question to apply that decision
    (McCarey v. Associated Newspapers, Ltd. [1965] 2 Q.B. 86; Broadway
    Approvals
    v. Odhams Press Ltd. [1965] W.L.R. 805 and Fielding v. Variety
    Incorporated
    [1967] 2 Q.B. 841). What has caused their change of mind
    does not appear but I must deal with their new view. As regards the present
    position being unworkable, of course many difficulties remain in this branch
    of the law, but these difficulties are an inheritance from the confusion of the
    past. I have dealt fairly fully with the proper interpretation of Rookes v.
    Barnard and it appears to me that that decision removes many old difficulties
    and creates few if any new ones.

    I need not deal separately with the novel idea that a decision of this
    House can be ultra vires because that charge appears to be consequential
    on the charge that this House acted per incuriam in reaching its decision.
    It is perfectly legitimate to think and say that we were wrong but how
    anyone could say we acted per incuriam in face of the passage on page 1230
    I fail to understand.

    This charge is really based on what appears to me to be a misreading
    by the Court of Appeal of two decisions of this House, E. Hulton v. Jones
    [1910] A.C. 20 and Ley v. Hamilton [1935] 153 L.T. 384. Hulton's case
    has always been regarded as the leading authority for the proposition that a
    defamatory description intended to apply to a fictional person may in fact


    34

    be a libel on a real person and therefore a subject for damages. I see
    nothing in the speeches in this House to indicate that punitive damages in the
    modern sense were being considered. It was said that there was an element
    of recklessness in the failure of the defendants to realise that there was a
    real Artemus Jones and that this justified a rather high sum of damages
    but I see nothing to indicate any view that the damages went beyond any-
    thing that could be justified as compensation and could only be justified
    as being punitive in the modern sense.

    Ley v. Hamilton requires rather fuller consideration. But again I see
    nothing to indicate that this House held that the damages went beyond
    compensation or that there had been outrageous conduct justifying a punitive
    award which went beyond compensation. The majority in the Court of
    Appeal certainly held that the £5,000 damages awarded was punitive in the
    modern sense. They held that the real damage was trifling and the rest
    punishment. Greer L.J. said (151 L.T. page 369) that if Hamilton had been
    prosecuted for criminal libel it was inconceivable that he would have been
    fined £5,000. Maugham L.J. said (at page 374) that the damages could not
    be described as a fair and reasonable compensation but were in the nature
    of a fine.

    In this House only Lord Atkin delivered a speech. I read it as intended
    to shew that elements properly included in compensatory damages were
    far wider than the majority in the Court of Appeal had thought and that
    the whole of this £5,000 was in fact justified as being compensatory. He
    said:

    " The fact is that the criticism with great respect seems based upon
    " an incorrect view of the assessment of damages for defamation.
    " They are not arrived at as the Lord Justice seems to assume by
    " determining the ' real' damage and adding to that a sum by way
    " of vindictive or punitive damages. It is precisely because the ' real'
    " damage cannot be ascertained and established that the damages are
    " at large. It is impossible to track the scandal, to know what quarters
    " the poison may reach: it is impossible to weigh at all closely the
    " compensation which will recompense a man or a woman for the insult
    " offered or the pain of a false accusation. No doubt in newspaper
    " libels juries take into account the vast circulations which are justly
    " claimed in present times. The ' punitive' element is not something
    " which is or can be added to some known factor which is non-punitive.
    " In particular it appears to present no analogy to punishment by fine
    " for the criminal offence of publishing a defamatory libel."

    By saying that compensation for insult or the pain of a false accusation
    cannot be weighed at all closely and that there was nothing here analogous
    to punishment by fine, he was to my mind making it as clear as words can
    make it that the whole of this £5,000 was truly compensatory in character.
    So I think that Lord Devlin was perfectly right in saying that there is
    no decision of this House which recognises punitive damages in the modern
    sense of something which goes beyond compensation. Where the Court
    of Appeal went wrong was in failing to realise that in the older cases
    damages were frequently referred to as exemplary or punitive although they
    were in reality compensatory.

    On the whole matter I would dismiss this appeal.

    Lord Morris of Borth-y-Gest

    my lords,

    At the trial of this action questions arose as to whether if the plaintiff
    succeeded, he was entitled to recover exemplary damages in addition to
    compensatory damages. The law relating to exemplary damages was con-
    sidered in your Lordships' House in 1964 and was laid down in the decision
    in Rookes v. Barnard
    [1964] AC 1129. That decision bound the learned
    judge. It bound the Court of Appeal. It continues to be binding authority


    35

    in all courts unless and until it appears to your Lordships to be right to
    depart from it.


    In presiding at the trial the learned judge set himself loyally and faith-
    fully to follow the binding authority of the decision. His directions to
    the jury followed the approach laid down in the decision though it is con-
    tended that in regard to one or two matters there was faulty exposition
    which was sufficiently serious to vitiate the award made by the jury of
    exemplary damages. These matters call for separate consideration. If the
    contentions concerning them do not succeed there remains an issue as to
    whether the award of the jury was excessive and should be set aside. If
    it is held that there was nothing amiss at the trial and that the law as laid
    down in your Lordships' House was properly applied by the learned judge
    it would be an unhappy conclusion if it were now held that the trial had in
    fact been conducted on wrong or at least on unnecessary lines but that this
    had only been so because the law which had to be followed had been wrongly
    laid down. If that were the conclusion it is by no means certain that it
    would be possible to avoid ordering a new trial which would then be
    conducted on the basis of the law as newly laid down. But a result so
    lamentable (and for the parties so calamitous) must be contemplated as at
    least a possibility if it is decided that the law was wrongly declared in 1964
    and must now be changed or changed back again.

    Before considering this aspect of the matter further I must express my
    view in regard to the main contentions which are raised by the Appellants.
    They for their part do not in any way question the validity of Rookes v.
    Barnard.
    Their appeal relates only to the award of exemplary damages.
    The jury found that the words compained of in the hardback edition
    were defamatory of the plaintiff and that the words were not true in sub-
    stance or in fact. They found similarly in regard to the proof copies. They
    awarded compensatory sums respectively of £14,000 and £1,000. No chal-
    lenge as to such results is made. No criticism is advanced in regard to
    the very careful summing up of the learned judge dealing with the facts
    and with the issues as to liability. No suggestion is made that the awards
    of compensation can be attacked as being excessive or unreasonable.

    The learned judge left three questions to the jury on the issue of exem-
    plary damages. First they were asked whether the plaintiff had proved
    that he was entitled to exemplary damages. Here the learned judge was
    carefully following Rookes v. Barnard. There may be exemplary damages
    if a defendant has formed and been guided by the view that though he
    may have to pay some damages or compensation because of what he
    intends to do yet he will in some way gain (for the category is not confined
    to moneymaking in the strict sense) or may make money out of it, to an
    extent which he hopes and expects will be worth his while. I do not
    think that the word " calculated " was used to denote some precise balancing
    process. The situation contemplated is where someone faces up to the
    possibility of having to pay damages for doing something which may be
    held to have been wrong but where nevertheless he deliberately carries out
    his plan because he thinks that it will work out satisfactorily for him. He
    is prepared to hurt somebody because he thinks that he may well gain by
    so doing even allowing for the risk that he may be made to pay damages.
    As the learned judge put it in reference to defamation there may be exemplary
    damages in cases where someone wilfully or knowingly or recklessly peddles
    untruths for profit. There must be evidence fit to be left to the jury but
    if there is then it is for the jury to decide whether there is entitlement to
    exemplary damages on the basis to which I have referred.

    It was contended on behalf of the Appellants that there was no evidence
    fit to be left to the jury in this case on this issue. In my view this contention
    wholly fails. There was ample evidence. It was painstakingly recounted
    in the summing up of the learned judge. It is helpfully referred to and
    summarised in the judgment of the learned Master of the Rolls. It is
    reviewed in the speech of the Lord Chancellor which I have had the
    advantage of reading in advance.


    36

    Similar considerations apply to the question which was put to the jury
    and which they answered by saying that entitlement to exemplary damages
    was proved against both Defendants.

    It is in regard to the next question and answer that the greatest doubts
    and difficulties in my view arise. Being asked—What additional sum should
    be awarded him by way of exemplary damages? The answer of the jury
    was £25,000. So there were three awards: one being (for the hardback
    edition) the compensatory figure of £14,000: another being the exemplary
    damages figure of £25,000. For the total of £40,000 judgment was entered.

    I must confess that for my part I should greatly regret it if the practice
    became general of having a separate award of exemplary damages in this
    manner (I will return to this question later). But the learned judge was only
    following the guidance specifically given in Rookes v. Barnard. There it
    was said (at page 1228) that the fact that the two sorts of damage differ
    essentially does not necessarily mean that there should be two awards. But
    it was said that there may be cases in which it is difficult for a judge to say
    whether he ought or ought not to leave a claim for exemplary damages to
    the jury. I can quite see that in such a case it will be easier for an appellate
    court (where an issue is raised whether there was evidence which could
    justify an award of exemplary damages) if there are two awards. The award
    of exemplary damages could be set aside without the necessity for a new
    trial if the appellate court considered that the evidence was not such as to
    have been fit for the consideration of the jury so as to entitle them to award
    exemplary damages. For this reason it was stated in Rookes v. Barnard
    that if a judge is in doubt whether he ought to leave a claim for exemplary
    damages to a jury then he could invite them to say " what sum they would
    " fix as compensation and what additional sum, if any, they would award if
    " they were entitled to give exemplary damages ". It was this course that
    the learned judge followed in the present case. But if this course is followed
    the words " if any " become of importance. They were not included in the
    question which was put to the jury.

    There are three very important issues which arise. (1) Did the learned
    judge give an adequate direction to the jury to ensure that they understood
    that they should only award an " additional " sum if they were satisfied
    that the amount they were awarding as compensatory damage was in itself
    not enough to punish the defendants. (2) Did the learned judge give an
    adequate direction to meet the situation where (as in this case) there are two
    defendants and (3) In any event is the sum of £40,000 excessive as an award
    of exemplary damages and a figure which no reasonable jury could award
    —with the result that though the purely compensatory part £15,000 is not
    challenged the award of an additional £25,000 must be set aside. (1) The
    relevant sentences in the summing up have been referred to in the speech of
    the Lord Chancellor and I need not set them out. I would have been happier
    if the direction on this point (which came towards the end of what I venture
    to think was a masterly review of the case) had been ampler and more
    explicit than it was. But the learned judge did emphasise the word " addi-
    " tional". He asked the jury to underline it. He said that they should
    underline it because both the court and counsel would want to know " if
    " you do decide to award punitive damages how much more do you award
    " over and above the compensatory damage ". Even so it would have been
    better to have made it abundantly clear that the punitive element is not to
    be considered in isolation: an enforced obligation to pay a large sum by
    way of compensation has itself a punitive impact. So a jury ought fully
    to understand that only if a sum awarded as compensation is inadequate
    as a punishment should any larger sum be awarded.

    Much earlier in his summing-up the learned judge had dealt with this
    matter in an introductory way. He told the jury that they were being
    asked " not only to give Captain Broome compensatory damages that is a
    " reasonable sum for the injury to his reputation and the exacerbation of
    " his feelings: but hi addition to fine Cassels and Mr. Irving for having
    " done what they have done. The money which you decide—if you do
    " decide—to award by way of punitive damages will not go into the National
    " Exchequer. It will have to go into Captain Broome's pocket." Here


    37

    again there was an omission to emphasise that an award of compensation
    must always and inevitably be a part of the " fine" in cases where the
    imposition of a " fine " is warranted.

    Though a study of the shorthand note of what was said has led me to the
    view that there should have been amplification in the way to which I have
    referred, the important question now is whether it should be held that
    the jury were misled with the result that heir award cannot stand. The
    emphasis placed upon the word " additional" could not have been lost
    sight of by the jury. Additional to what? Quite clearly, additional to the
    amount of compensation awarded. The jury were asked " how much more "
    they would award. The " more " was to be " over and above " the com-
    pensation. It surely must have been clear to the jury that any " more "
    that they decided upon or any " additional" sum would have to be paid
    by those against whom they awarded it on top of the sum that they were
    first awarding. Here was a jury that listened to the case over a period of
    seventeen days. They deliberated for nearly five hours. They awarded
    a sum of £25,000 to be " additional" to their award of £15,000. They
    knew that the total was £40.000. Thereafter they heard both counsel agree
    that there should be a single judgment for that amount. No suggestion
    was made (or I think could possibly have been made) that the £25,000
    included the £15,000. I would find it difficult to accept that at the stage
    in their deliberations when they were considering whether Cassells and
    Mr. Irving should be punished by being made to pay money they should
    at that stage have left out of account one part of the money that they
    themselves were awarding. If having decided that it was a case for punish-
    ment the jury were considering the monetary sum which, as such punishment,
    should be paid the point would surely have been raised by one member
    if not by all members of the jury: Are we not punishing them enough by
    saying that they must pay £15,000? They could have recorded that as
    their view had they entertained it. I am not prepared to assume that
    something which at that stage must really have been quite obvious was
    overlooked by the jury.

    1. There is nothing in regard to this question which I could usefully
      add to what the Lord Chancellor has said in reviewing the authorities and
      in formulating his conclusion. I express my concurrence.

    2. The approach which should be followed by an Appellate Court in
      considering whether an award of damages made by a jury should be
      assailed on the ground that the sum awarded is excessive has been clearly
      defined in authoritative decisions. They are referred to in the speech of
      the Lord Chancellor. I am bound to say that the figure of £40,000 appears
      to me to be a high figure. Certainly it must be a very unusual case in
      which on a correct application of the law as laid down in Rookes v.
      Barnard the amount which defendants must pay should so greatly exceed
      the amount which is reasonably to be received by the plaintiff by way
      of compensation. It is this disparity between the £40,000 and the £15.000
      that has caused disquiet as to whether the jury may have been caused
      or allowed to be under a misunderstanding. But if the conclusion is
      reached that the jury knew what they were about and chose their figures
      advisedly then I do not think that I ought to conclude that their " additional "
      figure of £25,000 was so high that no reasonable jury could award it. To
      translate injury to and attack upon reputation into monetary terms is at
      all times a difficult exercise. But it was the same jury that fixed the
      " additional " figure of £25,000 that also—without being impeached for so
      doing—fixed the compensatory figure of £15,000. If they did not go wide
      when fixing the latter why should it be determined that they went wide
      in fixing the former. The conclusion which I think can be drawn is that
      the jury took a very serious view of the conduct and attitude of the
      defendants. If, after hearing all the relevant features of the case probed
      and examined over a period of seventeen days and hearing the evidence
      of such of the parties as decided to call or give evidence, the jury did take
      a very serious view there was evidence which entitled them to do so. They

    38

    may have regarded the conduct and attitude of each of the defendants with
    equally sharp disfavour. If it was their considered collective view that the
    defamation was grave and that publication was deliberately undertaken by
    those who had regard for their own advantage but none for the honour
    and renown of one whom they traduced then the jury were warranted in
    deciding that such conduct should be heavily penalised. Whatever might
    have been my personal assessment had I been on the jury I have not been
    persuaded that it must be decided that the penalty imposed was beyond the
    limit to which a reasonable jury could go. Nor can it be said with any
    assurance that an estimation of a figure by a learned judge would necessarily
    have superior validity. A learned judge has experience and knowledge of
    other cases but in a matter so elusive as fixing in monetary terms a reflection
    of feelings of disapproval there is no norm. It may be difficult to give
    guidance but a judge should be able to express to a jury the same guidance
    as he would give to himself.

    For the reasons which I have given I consider that the appeal should be
    dismissed. As I have indicated, the Appellants in no way sought to
    impugn the decision in Rookes v. Barnard. Such ardour in criticism as may
    have been evinced in the Court of Appeal by counsel for the Respondent
    became tempered and modified by the reflection that an assault upon
    Rookes v. Barnard was not essential for his success in this appeal and
    that the over-turning of Rookes v. Barnard might at least possibly involve
    the jettisoning of all the proceedings to date and a complete new trial on a
    fresh basis. But as so much was said about Rookes v. Barnard and because
    in the printed case of the Respondent the first reason set out was that
    your Lordships' House should depart from its decision in Rookes v. Barnard
    (in so far as that decision altered the law on exemplary damages generally
    or at least in defamation cases) I must record my opinion.

    In Rookes v. Barnard one submission that was made was that exemplary
    damages could not be awarded in that case. Other submissions led to a
    somewhat general consideration of the law relating to exemplary damages.
    The report of the arguments (from page. 1158 to page 1164) shows that
    certain authorities and certain text books were referred to and were
    examined. There were citations of some thirty cases. In the result the
    House examined and reviewed the law and came to certain conclusions. The
    House was not bound to limit those conclusions within any formulation
    which counsel had thought fit to formulate.

    It would be idle to deny that a very considerable pruning operation was
    decided upon. It may be that there are some who would not have pruned
    so much and so drastically. It may be that there are some who would have
    pruned more severely. What was done was done in the hope of removing
    from the law " a source of confusion between aggravated and exemplary
    damages ". It may be that there are some who feel that though the previous
    law (built up, as the common law is, as a result of particular decisions
    given in particular sets of circumstances) was in very many respects imprecise
    and even illogical yet it was somehow found in practice to work and to be
    no serious cause of confusion. It may be that there are some who consider
    that manifest variations and divergencies in terminology did not reflect any
    really fundamental differences of approach: that for example when in The
    Mediana
    [1900] A.C. 113, 118 Lord Halsbury L.C. made a reference, though
    only a passing and incidental one, to punitive damages (" I put aside cases
    " of trespass where a high-handed procedure or insolent behaviour has been
    " held in law to be a subject of aggravated damages, and the jury might
    " give what are called punitive damages ") he had much the same conception
    in mind as had Lord Atkinson when in Addis v. Gramophone Company Ltd.
    [1909] A.C. 48, 496, he made an incidental reference to circumstances of
    malice, fraud, defamation or violence which would sustain an action of
    tort in which a person might no doubt "recover exemplary damages or
    " what is sometimes styled vindictive damages " or as had Lord Loreburn
    L.C. when he spoke in Hulton v. Jones [1910] A.C. 20.25 ("In the second
    " place the jury were entitled to say this kind of article is to be condemned.
    " There is no tribunal more fitted to decide in regard to publications,

    39

    " especially publications in the newspaper press, whether they bear a stamp
    " and character which ought to enlist sympathy and to secure protection.
    " If they think that the licence is not fairly used and that the tone and style
    " of the libel is reprehensible and ought to be checked, it is for the jury
    " to say so").

    But even if some of the thoughts above referred to are in fact entertained
    do they give warrant for re-opening now the debate that led to the decision
    in Rookes v. Barnard? I do not think so. I do not think that the power
    that was referred to in the statement of the 26th July 1966 was intended
    to encourage a tendency periodically to chop and change the law. In
    branches of the law where clarification becomes necessary there may well be
    decisions which as a matter of policy are not universally welcome or where
    some may think that some variant of the decision one way or the other
    would have been more acceptable. But this does not mean that decisions of
    this House should readily be reviewed whenever a case presents itself which
    is covered by a decision. There must be something much more.

    In his book "Principles of the Law of Damages" (1962) Professor Street
    poses the question whether awards of exemplary damages are ever justified.
    He outlines seven arguments against them and with mathematical impartiality
    seven arguments in their favour concluding that one cannot say whether
    or not exemplary damages are desirable. Whatever general views may be
    entertained or whatever inclination there may be in different personal views
    I see no advantage in refusing at this juncture to recognise that a deliberate

    pronouncement was made in Rookes v. Barnard.

    Though I consider that no reason has been shown for denying to that
    pronouncement the authority of a decision of this House it is not inconsistent
    with this approach to express the hope that a necessity for a separate and
    isolated assessment of exemplary damages will be rare. In the search for
    authority only one case was found prior to Rookes v. Barnard in which there
    was such a result. That was Loudon v. Ryder [1953] 2 Q.B. 202 now
    repealed. The present case is I think the first one subsequent to Rookes v.
    Barnard in which such a separate award has actually been made.

    In the older cases the " vindictive " or " exemplary " or " punitive " aspect
    merely became one element in a composite whole. Thus the law as it was
    in 1877 was summarised in the 3rd edition of Mr. Mayne's Treatise on
    Damages. He pointed (see page 37) to the difference between damages in
    cases of contract (where they were only a compensation) and in cases of
    tort. In the latter " if there were no circumstances of aggravation they are
    " generally the same ". But where he said, " the injury is to the person, or
    " character, or feelings, and the facts disclose fraud, malice, violence, cruelty,
    " or the like, they operate as a punishment, for the benefit of the community,
    " and as a restraint to the transgressor ". In the various cases cited (see
    pages 36, 37, 514, 515, 516) one amount only of damages was assessed.
    For a later general summary of the law (as it was in 1895) reference may be
    made to Sir Frederick Pollock's 4th edition of The Law of Torts. He refers
    (see page 174) to cases where there is great injury without the possibility of
    measuring compensation by any numerical rule. In such cases he said—
    " juries have been not only allowed but encouraged to give damages that
    " express indignation at the defendant's wrong rather than a value set upon
    " the plaintiff's loss. Damages awarded on this principle are called exemplary
    " or vindictive ". He went on to explain that—" the kind of wrongs to
    " which they are applicable are those which, besides the violation of a right
    " or the actual damage, import insult or outrage ". The cases cited, to which
    I need not refer in detail, again appear to me to be cases in which only one
    figure of damages was assessed.

    When juries came to award damages in such cases of tort they did therefore
    give and indeed were " encouraged " to give a sum which marked displeasure
    or indignation or which was to serve as a deterrent or as an example or
    which vindicated the law or which was a way of punishing the defendant.
    But juries were not invited to isolate such element as was purely punitive.
    I do not expect that they did in practice. In some cases their displeasure or
    indignation would operate as a kind of topping-up process. But if the

    40

    process by which they had arrived at a figure could have been analysed
    (which normally it could not have been) while it would probably have been
    found that there had been nothing in the nature of a mathematical addition
    of separate sums yet it would have been recognised that some (wholly
    unascertainable) part of the whole must have been purely punitive. Stated
    otherwise such (unascertained) part was a fine. Logical analysis forces the
    conclusion therefore that in the result there would in a civil action have
    been punishment for conduct not particularised in any criminal code and
    that such punishment had taken the form of a fine not receivable by the
    State but as a sort of bonus by a private individual who would apart from
    it be solaced for the wrong done to him. There may be much to be said for
    making it permissible in a criminal court to order in certain cases that a
    convicted person should pay compensation. There is much to be said against
    a system under which a fine becomes payable in a civil court without any
    of the safeguards which protect those charged with crimes. If therefore the
    working of the law before Rookes v. Barnard is exposed to a relentless logical
    examination it has to be conceded that some features of it were not in
    principle acceptable. Yet it may be that no serious injustice resulted. And
    indeed as we have been told the life of the law often lies not in logic but in
    experience. It would however be an unfortunate and bizarre result if a
    wholly laudable attempt to rationalise the law had brought it about that the
    element which it was most sought to suppress was so brought into sharp
    relief that it attained a significance never before exhibited.

    I would regard the present case as exceptional in the sense that the jury
    must have considered that the conduct of the defendants merited very special
    condemnation. In other than an exceptional case where exemplary damages
    are to be awarded I would hope that a jury would be unlikely to award a
    total sum which exceeded its purely compensatory component element to an
    extent in any way comparable to that which is revealed in the present case.

    I would dismiss the appeal.

    Viscount Dilhorne

    my lords.

    The main issues to be determined in this appeal are (1) whether what was
    said by my noble and learned friend Lord Devlin in Rookes v. Barnard
    [1964] AC 1129 with regard to exemplary damages, and with which all
    the other members of the House then sitting agreed, correctly states the
    law: (2) if it does, whether Lawton J. erred in leaving the question of
    exemplary damages to the jury: (3) having left it to them, whether he
    misdirected them with regard thereto: and (4) whether the sum of £40,000
    awarded by them, of which £25,000 was exemplary damages, was so excessive
    that that verdict cannot be allowed to stand.

    I propose to consider the first of these questions last. Although Rookes
    v. Barnard was not concerned with damages for libel, I consider the other
    questions on the assumption that what was said in that case is not to be
    regarded as obiter in relation to libel cases and is to be regarded as binding
    on all inferior Courts.

    Lord Devlin expressed the view that there were only three categories of
    cases in which exemplary damages could be awarded, namely: —

    1. Where there had been oppressive, arbitrary or unconstitutional action
      by servants of the government.

    2. Where the defendant's conduct had been calculated by him to make
      a profit for himself which might well exceed the compensation pay-
      able to the plaintiff: and

    3. Where exemplary damages are expressly authorised by statute.

    The Appellants contended that this case did not come within the second
    category. They called no evidence at the trial and the question whether
    it should have been left to the jury to consider exemplary damages, depends
    on whether there was evidence given or adduced on behalf of the plaintiff
    on which the jury were entitled to infer and conclude that the defendant's
    conduct was of that character.

    41

    I do not think that Lord Devlin ever envisaged that, to bring a case within
    the second category, the plaintiff would have to show that there had been
    something in the nature of a mathematical calculation by the defendant, an
    assessment of the profit likely to ensue from the publication of defamatory
    matter and an estimation of the risk of being sued and the damages likely
    to be awarded if an action was brought. If a plaintiff had to prove that,
    it would be seldom that he would be in a position to do so.

    Newspapers and books are usually published for profit and that fact does
    not by itself make the publisher liable to pay exemplary damages.

    I think that Widgery J., as he then was, was right when he said in Manson
    v. Associated Newspapers Ltd. [1965] 1 W.L.R. 1038:

    "... it is perfectly clear, from those authorities " (McCarey v. Asso-
    ciated Newspapers Ltd.
    [1965] 2 W.L.R. 45: Broadway Approvals Ltd.
    v. Odhams Press [1965] 1 W.L.R. 805) " that in a case in which a news-
    " paper quite deliberately publishes a statement which it either knows
    " to be false or which it publishes recklessly, careless whether it be
    " true or false, and on the calculated basis that any damages likely
    " to be paid as a result of litigation will be less than the profit which
    " the publication of that matter will give, then Lord Devlin's conditions
    " are satisfied and exemplary damages are permissible."

    He went on to say that he proposed to tell the jury that they could consider
    exemplary damages

    "if, having considered what material there is before them, they are
    " driven to the inference that this was an article published by the
    " defendants conscious of the fact that it had no solid foundation and
    " with the cynical and calculated intention to use it for what it was
    " worth, on the footing that it would produce more profit than any
    " possible penalty in damages was likely to be."

    I think too that Lawton J. put the matter correctly when he said in the
    course of his summing-up: —

    " A man is liable to pay damages on a punitive basis if he wilfully
    " and knowingly, or recklessly peddles untruths for profit."

    In my opinion, there was ample evidence on which the jury was entitled
    to come to the conclusion that the case came within the second category.
    On the 9th December, 1966, Mr. Irving the author, sent the manuscript
    of the book to Cassells with a letter in which he said that Captain Broome
    had threatened legal action if the manuscript was published, and on the 23rd
    December he sent them a long letter in which he quoted an extract from a
    letter he had received from Kimbers the publishers to whom he had first
    submitted the manuscript. That extract stated: —

    " if the book goes to a legal man as it is, he could only tell you that
    " half is libellous. We could not possibly publish the book as it is ... ".

    The manuscript submitted to Cassells was identical with that which
    Kimbers had seen. Perusal of it by any intelligent publisher must, even with-
    out the advantage of having the views of another publisher, have led to the
    conclusion that it contained many very grave and serious libels on Captain
    Broome and the jury were fully entitled to conclude that Cassells realised this.

    Mr. Kimber gave evidence that about the 8th March, 1967, he had tele-
    phoned Mr. Parker, a director of Cassells and told him that they had had
    one or two threats of libel actions if they published the book ; to which
    Mr. Parker's response was " In that case we will tighten up the indemnity
    " clause in Mr. Irving's agreement".

    On the 27th December, 1967, Captain Broome wrote to Cassells saying
    that the manuscript was " unquestionably libellous ". They replied saying
    that in the light of his comments " drastic revisions " had been made. In
    fact, as Cassells must have known, the revisions that were made did not
    materially affect the passages defamatory of Captain Broome.

    On the 16th February, 1968, the Business Director of Cassells circulated
    a memorandum in the following terms, to all concerned.

    42

    "It is anticipated that early copies of THE DESTRUCTION OF
    " CONVOY PQ 17 will start coming into the House on March 5th.

    " Will you please note that absolutely and positively not one single
    "copy, on any pretext whatsoever, is to be removed from the House
    " without reference to me.

    " Mr. Mitchell: Would you please notify the printer that this book
    " is to treated on a maximum security basis and ensure that not
    " one single copy slips through their net."

    Shortly thereafter Cassells circulated proof copies of the book. Why
    they did so after the circulation of this memorandum is not known for no
    evidence was given for them. In the absence of any explanation the jury
    were, in my view, entitled to draw the inference that they had decided to
    publish the book, despite Captain Broome's threats of action, knowing that
    passages in the book were libellous of Captain Broome and not caring
    whether those passages were true or false and on the footing that it was
    worth their while to run the risk of an action being brought by him and of
    his obtaining damages in order to make a profit on the book.

    On the 5th March, 1967, Captain Broome issued a writ for libel. On the
    29th April, 1968, has Statement of Claim was delivered. Cassells then knew,
    if they were in any doubt before, of what passages he was complaining.
    On the 14th June, 1968, they delivered their Defence. They pleaded that
    the words complained of were true in substance and in fact in their natural
    and ordinary meaning. They did not seek to justify the meaning which
    the Statement of Claim alleged the words complained of bore, inter alia,
    that Captain Broome had been disobedient, careless, incompetent, indifferent
    to the fate of the merchant ships and had been largely responsible for or
    contributed extensively to the loss of two-thirds of the ships of the convoy.

    Despite the issue of this Writ, Cassells went on and published a hard-
    back edition of the book. That led to another writ being issued by Captain
    Broome.

    Again in their Defence to this Statement of Claim Cassells pleaded that
    the words complained of were in their natural and ordinary meaning true in
    substance and in fact but did not seek to justify the meanings which in the
    Statement of Claim it was alleged they bore. The jury by their verdict
    rejected the plea of justification and must have accepted that the passages
    complained of bore the meanings alleged by the plaintiff.

    I do not propose to set out what those passages were Suffice it to say that
    they clearly alleged that Captain Broome had been disobedient, careless,
    incompetent, indifferent to the fate of the merchant ships, that he had wrongly
    withdrawn his destroyer force from the convoy, that he had taken it closer
    to the German airfields than he had been ordered to do and that he had
    been responsible for the loss of two-thirds of the ship in the convoy. He was
    in fact accused of cowardice.

    That Cassells did not appreciate that the passages complained of could
    be understood to have these meanings, is hard to accept. Yet after publica-
    tion of the proof copies, after receipt of the writ and the Statement of Claim
    in respect of that publication, and when they knew the meanings which it
    was alleged the passages bore, they went on and published the hardback
    edition, and at the trial persisted in their plea of justification.

    In these circumstances if Lawton J. had ruled at the end of the plaintiff's
    case, as he was asked to do, that there was no evidence from which the jury
    could infer that the case came within the second category, he would in my
    opinion have erred. I therefore reject this contention of the Appellants.

    After specifying the three categories of cases in which in his view ex-
    emplary damages might be awarded, Lord Devlin in Rookes v. Barnard
    said that there were three considerations which must always be borne in
    mind and then went on to say: —

    " In a case in which exemplary damages are appropriate, a jury
    " should be directed that if, but only if, the sum which they have in
    " mind to award as compensation (which may, of course, be a sum

    43

    " aggravated by the way in which the defendant has behaved to the
    " plaintiff) is inadequate to punish him for his outrageous conduct, to
    " mark their disapproval of such conduct and to deter him from repeat-
    " ing it then it can award some larger sum."

    Complaint is made that Lawton J. gave no such direction to the jury,
    with the agreement of counsel, he asked them to answer seven questions.
    The first was whether in respect of the hardback edition the words com-
    plained of were defamatory of the plaintiff; the second, were they true in
    substance and in fact. Their answer to the first question was, Yes and to
    the second, No. The third question was " what compensatory damages do
    " you award the Plaintiff? " Their answer was £14,000. Then in answer
    to the fourth and fifth questions they said that he was entitled to exemplary
    damages against both Defendants. The sixth question was " What additional
    " sum should be awarded him by way of exemplary damages? " Their
    answer was £25,000.

    After the questions had been handed to the jury in the course of the
    summing-up, Lawton J. told them that, after considering what were the
    compensatory damages if they found for the plaintiff, they should go on
    to consider whether he was entitled to exemplary damages. As to that, he
    told them to consider the case against each defendant separately, saying: —

    " In respect of each of them you will ask yourselves this question:
    "' Has the plaintiff proved his entitlement against that defendant? ' If
    " the answer is yes, then you will have to go on and assess how much
    " punitive damages should be awarded."

    In the next paragraph of his summing-up, he repeated this, saying: —

    " You will have to ask yourselves: ' Has he proved that he is entitled
    " to punitive damages against Cassells & Co. Ltd.? ' If the answer
    " is no, that is that. If the answer is yes, you will have to assess the
    " damages."

    and then he asked the jury to underline the word " additional" in the sixth
    question as he and learned counsel wanted to know.

    " if you do decide to award punitive damages, how much more do
    " you award over and above the compensatory damage ".

    The jury were thus clearly told that if they found that the plaintiff was
    entitled to punitive damages, they must then assess what punitive damages
    should be awarded. They were never told that in considering whether any
    sum should be so awarded, they must have regard to the sum they awarded
    for compensatory damages, and if, and only if, that sum was inadequate
    to punish the defendants, should they add to it by awarding a sum for
    exemplary damages.

    The failure to give such a direction, I regret that I cannot but regard
    as a most serious omission. It is one of the most important features of
    Lord Devlin's speech that a direction on the lines he stated should be
    given. It was not, and instead the jury were told twice that, if they held
    that Captain Broome was entitled to exemplary damages, they must assess
    them. The jury's verdict shows that they thought that £15,000 compensatory
    damages was insufficient, but if they had been told that they must, in
    assessing exemplary damages, take into account the sum awarded in com-
    pensation, it is possible that they would have awarded not £25,000 but only
    £10,000 as exemplary damages, that is to say, that they would have deducted
    from the £25,000 the £15,000 compensatory damages.

    I regret having to come to this conclusion but I see no escape from it.
    After a trial lasting 17 days and lengthy hearings in the Court of Appeal
    and in this House, one feels some reluctance to say that the jury's verdict
    should not stand. If all the counsel engaged in the case had told the
    jury that a sum should only be awarded for exemplary damages if the
    amount of the compensatory damages was insufficient punishment, then it
    might be possible to say that despite the omission in the summing-up, the
    jury can have been in no doubt as to what they were required to do.
    Unfortunately all counsel did not tell them that. One counsel told the

    44

    jury in his final address that they must consider exemplary damages quite
    separately from compensatory damages. He told them

    " they are completely unconnected with each other and in no sense
    " does the one head fall to be balanced against the other "

    and

    " The two sums are so different that there is no propriety in any
    " sense in balancing them up ".

    He thus indicated that account should not be taken of the amount of com-
    pensatory damages when deciding what, if any, sum should be awarded for
    exemplary damages. Counsel for Cassells did not refer to the matter but
    Mr. Colin Duncan in his final address for the Defendant Irving read to
    the jury the " if, but only if " passage of Lord Devlin's speech.

    As the case was presented to the jury, I can see no ground for the
    conclusion that they must, despite the omission in the summing-up, have
    been aware that they had to take into account the compensatory damages
    when deciding, if they held that there was entitlement to exemplary damages.
    what sum, if any, should be awarded on that account. On the contrary, the
    passages I have cited from the summing-up show that they were told that.
    if they found entitlement, they must then assess an amount for exemplary
    damages.

    I have regretfully come to the conclusion that in consequence of this
    omission, the verdict should not be upheld.

    Another criticism made of the summing-up was that the jury were not
    told on what basis they should assess the exemplary damages if they
    found that the plaintiff was entitled to them from both defendants and if,
    in their opinion, the degree of guilt of the defendants differed.

    In the Court of Appeal there was considerable divergence of view as to
    the proper direction to be given on this. While there is ample authority
    for the proposition that against joint tortfeasors there can only be one
    verdict and one judgment for a joint tort, there is not a great deal of
    authority on this question. Such as there is points to the conclusion that
    the plaintiff can only recover the amount which all the defendants should
    pay and that the amount to be awarded should not be increased to a sum
    thought adequate to punish the most guilty defendant (see Dawson v.
    McLelland (1899) 2 Ir. Rep. 486 per Andrews J. at p. 490: per Boyd J. at
    p. 493 and per FitzGibbon L.J. at p. 499 ; Smith v. Streatfeild [1913] 3 K.B.
    764 per Bankes J. at p. 769, and Gatley on Libel and Slander 6th Ed. p.
    1389). If that were not the case an innocent party or a less guilty party
    might have to pay a sum far in excess of that which he ought to pay. The
    result of this conclusion appears to be that if three defendants are sued
    for writing, printing and publishing a libel, if the publisher and author are
    held liable to pay exemplary damages and the printer is not, the plaintiff
    will not be awarded exemplary damages and the publisher and author will
    avoid liability for such damages.

    The summing-up contained this passage: —

    "... say, for example, you took the view that Mr. Irving was more
    " to blame than Cassells & Co., or to be fair, you took the view that
    " Cassells & Co., being an experienced firm of publishers were more to
    " blame than this young man, Mr. Irving, should you make Cassells &
    " Co. pay a larger sum by way of punitive damages than Mr. Irvine?
    " The answer to that is No. Whatever damages, if any, you decide should
    " be awarded by way of punitive damages must be the same sum in
    " respect of both Mr. Irving and Cassells & Co. Ltd., if you find them
    " both liable to pay punitive damages."

    Later in response to an intervention by counsel, he made it clear that this
    did not mean awarding one sum against each defendant but one sum against
    both.

    While it can be said that the direction on this might have been more clearly
    expressed. I think it suffices for this passage did indicate to the jury that
    they should award a sum which was appropriate to the less guilty of the

    45

    two. It may, of course, be the case that the jury did not find that one was
    more guilty than the other.

    I now turn to the question whether the damages awarded were so excessive
    that the verdict cannot be allowed to stand.

    In Rookes v. Barnard (supra) Lord Devlin at p. 1128 recognised that where
    there was entitlement to exemplary damages, that did not necessarily mean
    that there must be two awards though he expressed the view that where there
    was doubt about entitlement to such damages, to avoid the risk of a new
    trial, it might be convenient to have separate awards.

    One consequence of there being two awards, one for compensatory damages
    and one for exemplary, is that the jury's verdict is more open to attack. If
    £15,000 was sufficient to compensate the Plaintiff for the injury inflicted on
    him, what justification can there be for an award of a further £25,000 as
    exemplary damages?

    Lawton J. very clearly told the jury that they were being asked to fine
    Cassells and Mr. Irving for what they had done. He told them that they
    were " really in the position of a Judge or magistrate trying a criminal case "
    and that punitive damages " must be reasonable in all the circumstances."

    An appellate court should only interfere with a jury's verdict as to damages
    if it is such as to show that the jury has failed to perfom its duty (Mechanical
    & General Inventions Ltd.
    v. Austin Motor Co. [1935] A.C. 346 per Lord
    Wright at p. 375: Bocock v. Enfield Rolling Mills [1954] 1 W.L.R. 1303:
    Scott v. Musial [1959] 2 Q.B. 429: Lewis v. Daily Telegraph [1963] 1 Q.B.
    340 and other cases). To be set aside, the verdict must be out of all proportion
    to the facts.

    The award of £25,000 for exemplary damages, as a fine and despite the
    direction given by Lawton J. to which I have referred, in addition to the
    award of £15,000 compensatory damages is, in my opinion, out of all
    proportion to the facts and suffices to show that they failed to perform their
    duty. Their award was, in my view, far in excess of the most that twelve
    reasonable men could be expected to give. If they had appreciated that they
    had to take into account the compensatory damages, then as I have said
    perhaps they might have awarded an additional £10,000 as exemplary
    damages. I would myself have assessed a considerably lower figure. Perhaps,
    one does not know, they may have thought that the Judge had power to
    set off one against the other. However that may be, I think that the highest
    figure that could have been awarded by a jury performing its duty for
    exemplary damages would have been £10,000 in which case judgment would
    have been given not for £40,000 but for £25,000.

    On this ground, too, in my opinion the verdict cannot stand.

    I turn now to the first question. Does Rookes v. Barnard correctly state
    the law with regard to exemplary damages?

    The Court of Appeal held that it did not. It was said that it was a decision
    given per incuriam. The Court of Appeal refused to allow it and Judges
    were told to direct juries in accordance with the law as understood before
    that case.

    Decisions of this House are binding on all inferior courts and must be
    followed by them. There are, I think, two grounds on which the Court of
    Appeal can justifiably refuse to follow what has been said in this House.
    The first is that what was said was obiter. While it might be argued
    that the observations made with regard to exemplary damages in so far
    as they related to libel actions were obiter as no question with regard to them
    arose in Rookes v. Barnard where the question was, could such damages
    be given for intimidation, the Court of Appeal did not base their action
    on this ground. The second is where there are two clearly inconsistent
    decisions of this House, and the Court of Appeal has then to choose which
    to follow. In the Court of Appeal it was asserted that what was said in
    Rookes v. Barnard was in conflict with two previous decisions of this House,
    Hulton v. Jones [1910] A.C.20 and Ley v. Hamilton (1935) 153 L.T.384
    but, as I read the judgments, the Court of Appeal did not proceed upon this
    ground.

    46

    To say that a decision of this House was given per incuriam is, to say the
    least, unusual and could be taken, though I cannot believe it was so
    intended, as of a somewhat offensive character. While I regret the use of
    this expression, I doubt if it was intended to mean more than that the
    questions involved deserved more consideration in relation, among other
    things, to libel actions. If that is what was meant, it is, I must confess, a
    view with which I have considerable sympathy.

    As I understand the judicial functions of this House, although they involve
    applying well established principles to new situations, they do not involve
    adjusting the common law to what are thought to be the social norms of
    the time. They do not include bowing to the wind of change. We have
    to declare what the law is, not what we think it should be. If it is clearly
    established that in certain circumstances there is a right to exemplary
    damages, this House should not, when sitting judicially, and indeed, in my
    view, cannot properly abolish or restrict that right. This, indeed, was
    recognised by Lord Devlin when he said (at p. 1226) that it was not open
    to this House to " arrive at a determination that refused altogether to
    " recognise the exemplary principle ". If the power to award such damages
    is to be abolished or restricted, that is the task of the Legislature, it may
    be after full and prolonged investigation by the Law Commission.

    One criticism that can be made of Lord Devlin's speech is that while
    recognising that a refusal altogether to recognise the exemplary principle
    was not possible, he nevertheless restricted the power to award such damages
    so that they ceased to be obtainable in cases where prior to Rookes v.
    Barnard they might have been given.

    I agree with the Master of the Rolls that the pre-Rookes v. Barnard
    law was well staled in Mayne & McGregor on Damages 12th Ed. para.
    207 where it is said that such damages can only be given:

    " where the conduct of the defendant merits punishment, which is
    " only considered to be so where his conduct is wanton, as where it
    " discloses fraud, malice, violence, cruelty, insolence or the like, or, as
    " it is sometimes put, where he acts in contumelious disregard of the
    " plaintiff's rights ".

    A similar statement is to be found in Mayne on Damages 11th Ed. (1946)
    p. 41.

    I do not think that this statement of the law is to be questioned because
    in paragraph 212 of the 12th Edition it is said that:

    " it cannot be said that English law has committed itself finally and
    " fully to exemplary damages "

    a view which conflicts with the opinion of Lord Devlin to which I have
    referred,

    " and many of the cases point to the rationale not of punishment of
    " the defendant but of extra compensation for the plaintiff for the injury
    " to his feelings and dignity. This is, of course, not exemplary damages
    " at all. It is another head of non-pecuniary loss to the plaintiff".

    This passage in paragraph 212 did not appear in the earlier editions.
    I am not concerned with the rationale but with what was recognised to
    be the law before Rookes v. Barnard. And I am reinforced in my view by
    the fact that what was said in paragraph 207 appears to accord with
    Australian law. In this field there does not appear to have been any
    difference between Australian and English law prior to Rookes v. Barnard.

    In Uren v. John Fairfax & Sons Pty. Ltd. (1955-60) 117 C.L.R. 118
    the High Court of Australia refused to follow Rookes v. Barnard and held
    that exemplary damages might be awarded if it appears that the defendant's
    conduct in committing the wrong exhibited a contumelious disreagrd of the
    plaintiff's rights, McTiernan J. saying that the law of exemplary damages was
    "compendiously stated" in the passage I have cited from Mayne &
    McGregor.

    Lord Devlin's first category "oppressive, arbitrary or unconstitutional
    " action by servants of the government", a category which he said he would
    not extend to oppressive action by private corporations or individuals, was

    47

    subjected to serious criticism by Taylor J. in Uren v. Fairfax supra. He
    pointed out that in none of the three old cases on which this category was
    apparently based, did the decisions turn on the fact that the defendants had
    acted for the government. Surely it is conduct, not status, that should
    determine liability. Power to award exemplary damages may be an anomaly,
    but I doubt whether it is beneficial to the law to seek to reduce the area of
    that anomaly at the price of creating other anomalies and illogicalities.
    Surely it is anomalous if a person guilty of oppressive conduct should only
    be liable to exemplary damages if a servant of the government. In these
    days there are others than the government who can be guilty of oppressive
    conduct. Why should they be treated differently? I can find nothing in
    the three cases to indicate that if the conduct complained of had been by
    persons other than servants of the government, liability to exemplary
    damages would have been excluded.

    Just as the definition of this category might be said to have been obiter
    to the decision in Rookes v. Barnard, so might consideration of it be regarded
    in this case. Nevertheless as Rookes v. Barnard has to be considered in this
    appeal in consequence of the action taken by the Court of Appeal, I feel
    I should express my opinion which is that this narrow definition does not
    appear to me to be justified by the authorities on which it was based.

    It may also be contended that Lord Devlin's second category is also too
    narrowly drawn for why should conduct lead to exemplary damages if
    inspired by the profit motive or some material interest, and similar conduct
    due to other motives not do so. But the substantial criticism that can be
    made is that by his categorisation, the previously existing and recognised
    power to award exemplary damages is restricted. Lord Devlin indeed appre-
    ciated the novelty of what he was doing when he said that acceptance of his
    views " would impose limits not hitherto expressed on such awards " (p.
    1226). I do not think that this should have or could properly be done. It
    should have been left to the Legislature.

    This conclusion does not, however, mean that the jury's verdict as to
    liability must be interfered with. It was urged that Cassell's decision to call
    no evidence was based on the assumption that Rookes v. Barnard applied—
    and that the issue was, did the case come within the second category. While
    it may be that the plaintiff would have presented his case differently but for
    what was said in Rookes v. Barnard, the defendants had to meet the case as
    presented whether or not Rookes v. Barnard applied, and it was in relation
    to that case that they decided to call no evidence. As the case presented
    would prior to Rookes v. Barnard, if established, have justified the award of
    exemplary damages, I cannot accept that the defendants might have reached
    a different decision about calling evidence on the case as presented if Rookes
    v. Barnard had not been followed.

    I now turn to the passage in Lord Devlin's speech dealing with the assess-
    ment of damages, a passage which, save in the respect to which I have
    referred, was closely followed by Lawton J. in his summing-up.

    I think that Salmon L.J., as he then was, correctly summarised the pre-
    Rookes v. Barnard practice when he said: —

    " Judges used to direct juries in libel actions that, if they found in
    " favour of the plaintiff, they should award him a sum which would
    " make it plain to the world that there was no truth in the libel and
    " which, as far as money could do so. would compensate him for the
    " distress, humiliation and annoyance which the libel had caused him.
    " They were also told in appropriate cases that they could take the
    " whole of the defendant's conduct into account down to the moment
    " they returned their verdict, and that if they came to the conclusion that
    " he had behaved outrageously they might, as a deterrent, reflect their
    " disapproval of the defendant's conduct in the amount of the damages
    " which they awarded. At the same time they were always warned to
    " be fair and reasonable and not to allow themselves to be inflamed
    " against the defendant but to decide dispassionately what in all the
    " circumstances would be a reasonable sum to award."

    48

    The summing up in Loudon v. Ryder [1953] 2 Q.B. 202 which was
    approved by the Court of Appeal, also recognised that outrageous conduct
    was a ground for exemplary damages. That appears to be the first case in
    which a jury was asked to award separate sums for exemplary and for com-
    pensatory damages and in which it was suggested that the amount awarded
    for exemplary damages was to be regarded as the imposition of a fine.

    In Ley v. Hamilton (1934) 151 L.T. 360 the Court of Appeal by a majority
    (Greer and Maugham L.JJ's: Scrutton L.J. dissenting) allowed an appeal
    from a jury's verdict awarding £5,000 damages for libel, one ground for the
    decision being that the damages awarded were excessive; Maugham L.J.
    saying that the sum could not be described

    " as a fair or reasonable compensation for the damages which the
    " plaintiff "

    had suffered, that the verdict could only be justified on the view that the jury
    were exercising the right to give vindictive or punitive damages, and that

    " when the damages in question are really not compensation for an
    " injury sustained by the plaintiff but in the nature of a fine inflicted
    " on the defendant "

    the Court of Appeal would be compelled to interfere.

    In this House ((1935) 153 L.T. 384) Maugham L.J.'s approach was
    rejected by Lord Atkin in a speech with which Lords Tomlin, Thankerton,
    Macmillan and Wright agreed. Part of the relevant passages of Lord Atkin's
    speech were cited by Lord Devlin but two sentences which I underline and
    which I regard as important were omitted.
    The full passage is as follows: —

    "The fact is that the criticism" (Maugham L.J.'s) "with great
    " respect seems based upon an incorrect view of the assessment of
    " damages for defamation.
    They are not arrived at as the Lord Justice
    " seems to assume by determining the ' real' damage and adding to
    " that a sum by way of vindictive or punitive damages. It is precisely
    " because the 'real' damage cannot be ascertained and established that
    " the damages are at large. It is impossible, to track the scandal, to
    " know what quarters the poison may reach: it is impossible to weigh
    " at all closely the compensation which will recompense a man or a
    " woman for the insult offered or the pain of a false accusation.
    " No doubt in newspaper libels juries take into account the vast
    " circulations which are justly claimed in present times. The ' punitive '
    " element is not something which is or can be added to some known
    " factor which is non-punitive. In particular it appears to present no
    " analogy to punishment by fine for the criminal offence of publishing
    " defamatory libel."

    Maugham L.J. did not in his judgment refer to " real " damage. I think
    it is clear that by " real " damage Lord Atkin meant the damage which
    the plaintiff had suffered.

    Yet is not the very process condemned in Ley v. Hamilton that which it
    was said in Rookes v. Barnard should be followed and that which, pursuant
    to Rookes v. Barnard, was followed in this case? Lord Atkin said that
    for the reasons he gave " real " damage i.e., compensatory damage, could
    not be ascertained and established. Under Rookes v. Barnard a jury is
    to be directed that that which Lord Atkin said could not be done, is to be
    done and " compensatory " damages assessed first. The punitive element is
    not something that can be added. Yet in Rookes v. Barnard it is said that
    it should be added if, but only if, the compensatory damages are insufficient.
    Lord Atkin said that there was no analogy to punishment by a fine for a
    criminal libel, yet following Rookes v. Barnard, juries are told that punitive
    damages amount to a fine.

    I must confess my inability to reconcile the views of this House as
    expressed in Ley v. Hamilton with those expressed in Rookes v, Barnard.

    Before Rookes v. Barnard the words " aggravated", " punitive".
    " exemplary " and " retributory " were used indiscriminately to indicate that
    the damages awarded might be enhanced and might contain a punitive

    49

    element. By Rookes v. Barnard precise meanings were attached to the words
    "aggravated "and "exemplary ". Lord Devlin recognised (at p. 1221) that
    the jury could take into account the motives and conduct of the defendant
    where they aggravate the injury to the plaintiff. " There may be " he said
    " malevolence or spite or the manner of committing the wrong may be such
    " as to injure the plaintiff's proper feelings of dignity and pride. These are
    " matters which the jury can take into account in assessing the appropriate
    " compensation ". So where the injury is aggravated, an addition can be
    made to the compensatory damages.

    While in some cases it may be evident that malice or misconduct has
    added to the injury, there may be other cases where, although it is clear
    that there has been malice and misconduct, it cannot be said that the
    injury inflicted is any greater than it would have been if there had been no
    malice or misconduct. In such cases it would seem from Rookes v. Barnard
    that the compensatory damages should not be increased. Nor, in such cases
    would it seem that exemplary damages as there defined could always be
    awarded for they are only to be awarded if the sum given in compensation
    is " inadequate to punish for outrageous conduct, to mark the jury's dis-
    " approval of such conduct, and to deter a repetition ". The existence of
    malice may not make the defendant's conduct outrageous, and yet it is,
    I think, established beyond all doubt that before Rookes v. Barnard a jury
    was always entitled to award larger damages than they otherwise would have
    given if satisfied that the libel was actuated by malice.

    All the members of the Court of Appeal thought that the Rookes v.
    Barnard approach was wrong and in conflict with the views expressed in
    this House in Ley v. Hamilton. I can find no escape from that conclusion
    and if the choice now lies between following one or the other of those
    decisions, I would myself choose to follow the simpler and more flexible
    approach in Ley v. Hamilton. The Court of Appeal also thought that
    there was a conflict with the decision of this House in Hulton v. Jones [1910]
    A.C. 20. While there are some passages in the report of that case which
    afford some ground for that contention, I do not think that they suffice
    to establish that that is so with any degree of certainty.

    While, if the views I have expressed prevailed, it would not be necessary
    to disturb the jury's verdict as to liability, I cannot regard a direction
    to assess damages in accordance with Rookes v. Barnard as a proper
    direction in accordance with the pre-Rookes v. Barnard practice and as com-
    plying with Ley v. Hamilton. So if my view were to prevail, the verdict
    given in this case could not be sustained and there would, if there had not
    been agreement by counsel that this House should in that event assess the
    damages, have to be a new trial limited to the assessment of damages. As
    my view does not prevail, it is not necessary to express an opinion on what
    that sum should be if this House had to assess it.

    For the reasons I have stated, I would allow the appeal.

    Lord Wilberforce

    my lords,

    This case must be accounted, as in many respects, an unhappy one.
    After a trial of seventeen days before a judge and jury, in which the
    defendants called no evidence, the plaintiff, Captain Broome, was awarded
    against author and publishers jointly £40,000 damages in respect of libels
    contained in the book "The Destruction of P.O. 17". This total sum was
    awarded by the jury as to £15,000 as ''compensatory" damages and as
    to £25,000 as " punitive " damages. Captain Broome was awarded his costs
    of the trial.

    An appeal was taken to the Court of Appeal by both defendants. The
    substantial points for argument were two: (1) whether the summing-up was
    defective as regards the circumstances in which punitive damages may
    be given in addition to compensatory damages (2) whether the damages
    awarded were excessive. There was also a question as to whether a separate
    award should have been made against each defendant. Since the passages


    50

    in the book principally complained of reflected upon the conduct of officers
    of the Royal Navy, in combat conditions, there was an obvious danger that
    the jury may have become inflamed. This made it particularly necessary
    that there should be a dispassionate and cool review of the sums awarded
    and of the summing-up in the Court of Appeal.

    If matters had taken their proper and normal course, these matters should
    have been disposed of within a few days—by dismissal of the appeal or
    by an order for a new trial, and no question of appeal to this House would
    have arisen.

    This did not happen. The trial had been conducted properly, and inevi-
    tably upon the basis that the law to be applied as regards any claim for
    punitive damages was that staled by this House in Rookes v. Barnard [1964]
    A.C. The learned judge considered that he was bound by what was said
    in this House, as he clearly was. But in the Court of Appeal argument
    was admitted to the effect that Rookes v. Barnard, on punitive damages,
    was wrong and should not be followed: the Court of Appeal so decided,
    and three judgments, separate exercises in forceful advocacy, were delivered
    giving their reasons.

    The course permitted and taken was doubly surprising. First, there was
    nothing new about Rookes v. Barnard. It was decided in 1964: it had
    been followed and applied in England by the Court of Appeal itself three
    times since then in, amongst others, libel cases without difficulty or protest
    by any of the Lords Justices involved. Secondly, it was, on the view of
    the facts which the Court of Appeal took, unnecessary for the decision of
    the appeal to decide whether Rookes v. Barnard on punitive damages was
    right or wrong. The Court of Appeal, having held that it was wrong, still
    dismissed the appeal, and in an alternative passage held that the same
    result followed if it was right.

    The consequences for the present litigants have been heavy. An appeal
    has been brought here and argued for thirteen days. Counsel for the Appel-
    lant were forced into the necessity of arguing at length that Rookes v.
    Barnard is right, and this argument was answered on the Respondent's
    side. A mountain of costs has piled up and it is as well that the size of
    this should be understood: it is open on the record. As shown by the
    Order of the Court of Appeal, (he plaintiff's costs at the trial have been
    taxed at £22,000. His costs as assessed in the Court of Appeal are £7,000.
    His costs in this House must exceed this figure. The taxed costs of the
    defendants are unlikely to be less: there will be further solicitor and own
    client costs on either side. It may not be unfair to put the aggregate bill,
    which an unsuccessful party may have to bear, at more than £60,000. It
    would be entirely unfair to suggest that the whole, or even half this sum, is
    due to the course taken in the Court of Appeal—the greater part flows
    from the inherent nature of our system. But it is necessary to say that in
    a legal system so extravagant and punitive as to costs as ours is in civil
    cases, and particularly libel actions, the addition of further burdens, and
    here they were certainly considerable, carries the result further into an
    unacceptable area of injustice. England has not the equivalent of the New
    South Wales Suitors Fund Act, 1951, nor of the Victoria Appeal Costs
    Fund Act, 1964, so when the machinery creaks it is the private litigants
    who pay. I have felt deep concern about this throughout the hearing.

    My Lords, observations have already been made on other aspects of the
    Court of Appeal's judgments. I concur entirely with what has been said,
    and the fact that for reasons of space I abstain from using my own words
    does not mean that my concurrence is any the less wholehearted.

    I proceed to the principal task we have, which is to decide the present
    appeal. Before examining the summing-up, on which the jury's verdict
    was based, it is necessary to establish the law. This involves some re-
    examination of those parts of the decision in Rookes v. Barnard which
    relate to punitive damages.

    I shall consider Rookes v. Barnard under three heads. First, as to the
    analysis it contains of damages in tort cases: secondly, as to defamation
    actions in relation to Lord Devlin's second category—both of these being

    51

    directly relevant to the present case: thirdly, and briefly, as to the first and
    second categories, their inclusions and exclusions.

    I deal first with that portion of the judgment which analyses damages in
    tort cases into "compensatory" damages, a subhead of which is said to
    be " aggravated " damages and punitive damages, because I think that this
    has been largely misunderstood—a misunderstanding which has fatally entered
    into the present case.

    The judgment points out that in the reported English authorities, over
    some two hundred years, there is no clear terminology used; aggravated,
    exemplary, punitive, vindictive, retributory being adjectives which have been
    used, singly or in combination, without distinction or difference. Then it
    is suggested that in future there should be a clear and conscious distinction
    between compensatory/aggravated and punitive (or exemplary) damages, the
    former reflecting what the plaintiff has suffered materially or in wounded
    feelings, the latter the jury's (or judge's) views of the defendant's conduct.
    The statement of categories, in which alone punitive damages may be given,
    follows from this.

    This analysis is powerful and illuminating and undoubtedly represents a
    valuable contribution to English judicial thought on the subject [Footnote:
    cf. in the United States Fay v. Parker (1873) 53 N.H. 342-397 per Foster J.:
    and as to textbook discussion Mayne & Macgregor on Damages 12th ed.
    (1961): Street Principles of the law of Damages (1962)], but it has its dangers
    in practical application, as the present case only too well shows. English
    law does not work in an analytical fashion; it has simply entrusted the
    fixing of damages to juries upon the basis of sensible, untheoretical directions
    by the judge with the residual check of appeals in the case of exorbitant
    verdicts. That is why the terminology used is empirical and not scientific.
    And there is more than merely practical justification for this attitude. For
    particularly over the range of torts for which punitive damages may be
    given (trespass to person or property, false imprisonment, defamation, being
    the commonest) there is much to be said before one can safely assert that
    the true or basic principle of the law of damages in tort is compensation,
    or, if it is, what the compensation is for (if one says that a plaintiff is given
    compensation because he has been injured one is really denying the word
    its true meaning) or, if there is compensation, whether there is not in all
    cases, or at least in some, of which defamation may be an example, also
    a delictual element which contemplates some penalty for the defendant.
    It cannot lightly be taken for granted, even as a matter of theory, that the
    purpose of the law of tort is compensation, still less that it ought to be, an
    issue of large social import, or that there is something inappropriate or
    illogical or anomalous (a question-begging word) in including a punitive
    element in civil damages, or, conversely that the criminal law, rather than
    the civil law is in these cases the better instrument for conveying social
    disapproval, or for redressing a wrong to the social fabric, or that damages
    in any case can be broken down into the two separate elements. As a
    matter of practice English law has not committed itself to any of these
    theories: it may have been wiser than it knew.

    This is not the place to argue out the general case for or against punitive
    damages in English law. The existence of the principle has its convinced
    opponents, particularly, I understand, in Scotland. The arguments against
    it—that it is an " anomaly ", that it brings a criminal element into the
    civil law without adequate safeguards, that it leads to excessive awards, an
    unmerited windfall for the plaintiff ; these and others are by now well known:
    they, and the counter arguments are well summed up fn Professor Street's
    Principles of the Law of Damages (1962 page 33-4). Perhaps the opponents
    have, marginally, the best of it in logic but logic has never been the vice
    of English law and I am impressed, as I think was Lord Devlin, with the fact
    that the principle has shown, and continues to show, its vitality not only in
    England but in Australia. Canada and New Zealand, as well (though there
    are special considerations there) as in the United States of America. This
    is shown not only by reported cases, of which Canadian Provinces, Australian
    States and New Zealand provide a number of modern examples*, but in the

    * See as to Canada 48 Canadian Bar Review (1970) p. 373.

    52

    daily unreported practice of the courts. Its place in the law has been
    endorsed by many eminent judges in terms which clearly recognise the puni-
    tive element. The principle of punitive damages has been recognised by the
    High Court of Australia on five occasions, by the Supreme Court of Canada
    and by the Supreme Court of the United States of America.

    To my mind the strongest argument against it is that English law already
    contains a heavy, indeed exorbitant, punitive element in its costs system;
    contrast the United States where it is the absence of this (advocate's costs
    not being normally recoverable) which is invoked as a justification for
    punitive damages. One or other must clearly be reformed, and it is Parlia-
    ment alone that can do it.

    I take the discussion one step further, because the point is very relevant
    here. In Lord Devlin's opinion the distinction is made between aggravated
    damages and punitive damages; it is said that many of the authorities are
    really cases of aggravated damages though other words are used, that apart
    from the exceptional cases included in the three categories, aggravated
    damages are the appropriate and sufficient remedy. Although I doubt very
    much whether all the cases can be explained in this way—to do so seems
    to attribute a high degree of confusion of thought or inaccuracy of expression
    to judges of eminence—there is attraction in the distinction. It has the
    advantage, to some minds, of reducing the area of " punitive " damages, and
    of bringing the remedy nearer to " compensation ".

    But closer examination causes one to doubt whether the separation, other-
    wise than in analysis, of compensatory from punitive damages does not
    involve some real danger in practice. As Windeyer J. said in Uren's case
    (117 C.L.R. 118, 152) "What the House of Lords has now done is ... to
    " produce a more distinct terminology. Limiting the scope of terms that
    " often were not distinguished in application makes possible an apparently
    " firm distinction between aggravated compensatory damages and exemplary
    " or punitive damages. How far the different labels denote concepts really
    " different in effect may be debatable. I suspect that in seeking to preserve
    " the distinction we shall sometimes find ourselves dealing more in words
    " than ideas." [cf. Salmond on Torts 15th Ed. (1969) which maintains the
    old " confusion ".] The distinction does not in my belief greatly correspond
    to what happens in reality. Take a common case: a man is assaulted, or
    his land is trespassed upon, with accompanying circumstances of insolence
    or contumely. He decides to bring an action for damages, he need not
    further specify the claim. Is he suing for compensation, for injury to his
    feelings, to teach his opponent a lesson, to vindicate his rights, or " the
    " strength of the law ", or for a mixture of these things? Most men would
    not ask themselves such questions, many men could not answer them. If
    they could answer them, they might give different answers. The reaction to
    a libel may be anything from " how outrageous " to " he has delivered
    " himself into my hands ". The fact is that the plaintiff sues for damages,
    inviting the court to take all the facts into consideration, and, if he wins,
    he may ascribe his victory to all or any of the ingredients.

    As, again, Windeyer J. has said, the amount of the verdict is the product
    of a mixture of inextricable considerations (117 C.L.R., 118, 150). Sedgwick
    (Measure of Damages, 3rd Ed. 1858) said " Where either of these elements
    " [sc. malice, oppression etc.] mingle in the controversy, the law, instead of
    " adhering to the system, or even the language of compensation adopts a
    " wholly different rule. It permits the jury to give what it terms punitive,
    " vindictive or exemplary damages, in other words, it blends together the
    " interests of society and of the aggrieved individual and gives damages not
    " only to recompense the sufferer but to punish the offender. This rule . . .
    " seems settled in England and in the general jurisprudence of [U.S.A.]".
    Lord Atkin said just this in Ley v. Hamilton (1935) 153 L.T. 384 in a
    passage (cited in other opinions, vide that of Viscount Dilhorne) which, if
    any in modern times, is clear and authoritative. Dixon C.J. endorsed the
    principle—see citation below—as did the key passage in Halsbury's Laws
    of England (Vol. 11, page 223) cited by the Lord Chancellor. To segregate
    the punitive element is to split the indivisible and to invite the stock criticism
    (vide Street 1.c.) that civil courts have no business to impose fines.

    53

    This is of critical importance in practice. If the separation of damages
    into compensatory/aggravated and punitive is carried through into the instruc-
    tion to the jury, there is the greatest possible risk of excessive awards, through
    counting twice what is but a different facet of the same bad conduct Lord
    Devlin himself clearly understood this; the careful passage on page 1232.
    containing the "if but only if" prescription, provided his antidote—an
    effective one if judges can administer it in a timely and effective way.

    My Lords. I think there was much merit in what I understand was the
    older system, before Rookes v. Barnard. I agree with the Court of Appeal
    that in substance, though not perhaps philosophically or linguistically, this
    was clear and as explained above I doubt if there was any confusion as to
    what the jury should do. It was to direct the jury in general terms to give
    a single sum taking the various elements, or such of them as might exist
    in the case, into account including the wounded feelings of the plaintiff
    and the conduct of the defendant, but warning them not to double count
    and to be moderate. A formula on these lines commended itself to Dixon J.
    in 1932. What amount of damages, he asked, " is enough to serve at once
    " as a solatium, vindication and compensation to him and a requital to the
    " wrongdoer" (47 C.L.R. 279, 300). An earlier example is the direction
    of Abbott J. in Sears v. Lyons (1818) 2 Stark. 317: as evidence that modern
    practice corresponds I could not desire more than the passage, based on
    considerable experience, in the judgment of Salmon L.J. in this case [1971]
    2 All E.R. 205C cited in full by Viscount Dilhorne and which I need not
    repeat. If judges were to act in this way, and direct substantially as
    Salmon L.J. describes, I would see no basis for ascribing to them any error
    in law. If, on the other hand, use were to be made of the aggravated-
    punitive distinction, I would think that it is even more necessary that the
    jury should be directed to give a single sum (Lord Devlin's exception to
    avoid a new trial is entirely laudable, but, I respectfully think, risky).
    The direction to give a single sum should mean (the necessity to say this
    illustrates again the dangers of the terminology) not merely producing a
    single figure by way of verdict, but arriving in their discussion at a single
    sum. It would be wrong, and a novelty in the law, that they should, in
    the jury room, find separately the various elements—pure compensation,
    aggravated compensation and penalty and add them up to a total. In no
    previous cited case, except in Loudon v. Ryder (overruled by Lord Devlin
    himself), was this done; it was directly discountenanced by Lord Atkin in
    Ley v. Hamilton (1.c.).

    I regret that this rather lenthy analysis has been necessary before I deal
    with the present appeal: but in my view it is fundamental to a consideration
    of the summing-up.

    The full account of the trial which has been given in previous opinions
    enables me to summarise. The critical stages were these (page references
    are to the appeal record Appendix Part II):

    1. The jury were told that there were two aspects of damages, compensa-
      tory and punitive. They were asked first to consider compensatory damages.
      They had read to them a passage from the judgment of Pearson L.J. in
      McCarey v. Associated Newspapers [19651 2 Q.B. 86) in which it was said
      in clear terms that if there had been any high-handed, oppressive or con-
      tumelious behaviour which increased the mental pain and suffering caused
      by the defamation, this might be taken into account (pages 91-3).

    2. The judge then pointed out that Captain Broome had suffered no
      actual pecuniary loss: that he had not been shunned by his comrades:
      that the trial had been conducted without exacerbation: but that what was
      said in the book might be very wounding to his feelings (pages 93-98).

    3. The learned judge then dealt with punitive damages by reference to
      the second category in Rookes v. Barnard, cited the words of Widgery J.
      in Manson v. Associated Newspapers [1965] I W.L.R. 1038 and said: " You
      " are being asked here not only to give Captain Broome compensatory
      " damages, that is, a reasonable sum for the injury to his reputation and
      " the exacerbation of his feelings; but in addition to fine Cassells and Mr.
      " Irving for having done what they have done . . . You are really in the


    54

    " position of a judge or a magistrate trying a criminal case; you have got,
    " so to speak, to fine the defendant" (page 101) (emphasis supplied) and he
    gives examples of reasonable and unreasonable fines.

    Later he gives lengthy directions relevant to the second category (was
    there a calculation of profit etc.) and on the next day returns finally to
    damages (page 137).

    (4) The final direction as to damages consisted of the statement of ques-
    tions for the jury and explanation of them. The first question (No. 3)
    is " What compensatory damages do you award the plaintiff? " The sum-
    ming up continues—" Then having decided what are the proper additional
    " (sic) compensatory damages you will go on and consider the fourth ques-
    " tion, namely, ' Has the plaintiff proved that he is entitled to exemplary
    " ' damages? ' " and directs the jury to consider this in relation separately
    to each defendant. Lastly there is this passage—" Then you see the last
    " question under this heading, ' What additional sum should be awarded
    "' him by way of exemplary damages? ' Would you be good enough to
    " underline the word ' additional', because I want to know, and learned
    " counsel want to know, if you do decide to award punitive damages, how
    " much more do you award over and above the compensatory damage."
    The result of this was an award of £15,000 compensatory damages and
    £25,000 as an additional sum for exemplary damages.

    My Lords, I regret to have reached the conclusion that this verdict ought
    not to stand. Apart from the reasons given by my noble and learned friend,
    Lord Diplock, with which I respectfully agree, I think for myself that the
    separation of the element of compensatory damages from that of punitive
    damages, brought about through the interpretation placed on the second
    category and the application of it, involving, as it did, the need to fix com-
    pensation (plus aggravation) first, see if the case came within the category,
    and then fix a separate punitive sum, is fundamentally wrong. It has
    brought about precisely the result which was to be feared from breaking
    down the indivisible whole, namely, of fixing a compensation figure swollen
    by aggravation and then adding a fine on top—a fine in this case exceeding
    greatly the aggravated compensation. If the matter rested on the figures
    alone, I should find the greatest difficulty in supporting, even with all the
    inhibitions properly felt against substituting a judicial opinion for that
    of the jury, so large a punitive element, particularly in a case such as this
    where the libel was considered to be (I say nothing as to my own opinion)
    of a most wounding character, so that the " compensatory " damages must
    necessarily include a large " punitive " element. But when it is seen how
    the jury were directed to calculate, and the direction was certainly clear
    and certainly and visibly acted on, their figures become impossible to accept.

    In argument the issue was put in the form whether the judge's direction
    complied with Lord Devlin's " if but only if " advice (1.c. page 1232). I
    think that it certainly did not. The dangers of separating the compartments
    (compensatory damages and punitive damages) in so watertight a way
    are so great, as I have tried to explain: indeed, in my opinion, so wrong
    in principle that I doubt very much whether any instructions, in a difficult
    case, could avoid them. That is why I think that any interpretation placed
    on Rookes v. Barnard which requires this separation, or authorises it, and
    the introduction of the profit gateway which almost compels it, ought to be
    discarded. But however that may be, the directions given fall far short
    of what was necessary—I say this without any criticism of the learned
    judge who was merely following Rookes v. Barnard as previously applied
    by the Court of Appeal. When all is said the warning to the jury against
    the danger was contained in the word " additional" in question 4. I think
    this was not enough, for they had been told that they could inflict a fine.

    For these reasons, without committing myself to any particular figure
    if we were called upon to substitute one, I agree with the conclusion of my
    noble and learned friend, Lord Diplock, as to the necessity for a new
    trial on the question of punitive damages.

    55

    I must add one other point. This is the question of a joint award of
    damages against two wrongdoers, publisher and author. There is no doubt
    that the existing law is ill adapted to deal fairly with a case where " guilt"
    of joint defendants is unequal. But it is clear enough what the law is: it is
    state by the Lord Chancellor in terms which I need not repeat. In the
    Court of Appeal the Master of the Rolls said that the jury were free to
    decide whether to fix punitive damages at the highest figure, the lowest
    figure, or at a figure between the two and I fear that the jury may well
    have proceeded on this somewhat libertarian view of the law. One may
    escape from the conclusion that this vitiates the verdict by assuming that
    the two defendants were equally " guilty ", but I am not prepared to make
    this assumption or to ascribe a view to that effect to the jury. I think that
    the jury must have been, at best, confused, at worst misled by the direction,
    and I cannot accept that acquiescence by counsel validates the defect.

    I must now deal as briefly as I can with other aspects of the judgment
    in Rookes v. Barnard. I deal first with its effect on the law of damages for
    defamation.

    I am far from convinced that Lord Devlin ever intended to alter the
    law as to damages for defamation or intended to limit punitive damages in
    defamation actions to cases where a " profit motive " is shown. (I use this
    compendiously for the formula in his second category.) I summarise the
    reasons:

    1. Defamation is normally thought of as par excellence the tort when
      punitive damages may be claimed. It was so presented in argument by
      counsel for the Respondent (arguing against punitive damages) and he was
      an acknowledged expert in the subject. Every practitioner and every judge
      would take this view.

    2. Lord Devlin's passage where he sets up his second category does
      not refer to any defamation case, but to three other miscellaneous cases which
      he illuminatingly bases in the profit motive. He makes merely an incidental
      reference to libel where he says the profit motive is always a factor, not, it
      should be observed, a condition.

    3. It is difficult to believe that Lord Devlin was intending to limit the
      scope of punitive damages in defamation actions so as to exclude highly
      malicious or irresponsible libels. At least if he intended to do so at a
      time when the media of communication are more powerful than they have
      ever been and certainly not motivated only by a desire to make money,
      and since elsewhere the judgment shows him conscious of the need to sanction
      the irresponsible, malicious or oppressive use of power, I would have expected
      some reasons to be given.

    If we cannot interpret his judgment as leaving libel outside category 2
    as a separate case, well known to everyone, in which punitive damages may
    be given in familiar circumstances and as stating category 2 as a qualification
    for other cases, hitherto not explained or rationalised, then since the disposal
    of defamation actions was there dealt with briefly, I would say incidentally,
    and obiter, I consider that in this case where we are directly concerned with
    such an action we should disagree with it.

    This would leave the law as I understand it to be in Australia and Canada,
    countries where, in this respect, there is not known to me to be any such
    difference in " social conditions " as to call for the recognition, by this House,
    judicially, of a divergent law. If changes are to be made, they should be
    made, after proper investigation, by Parliament.

    I would add, with reference to this point, that the present case well
    illustrates the irrationality of the supposed new principle. For if the profit
    motive is essential for the recovery of punitive damages, one would expect
    the damages given to bear some relation to the supposed profit and/or to
    the means of the offender: the idea (if there is any logic in the requirement)
    must be to take the profit out of wrongdoing. Yet there was not, and in
    many such cases cannot be, any real consideration of the likely profit or of

    56

    the offender's means. There was no evidence what these might be and the
    jury were given no guidance. How, then, could the punitive £25,000 be
    other than an arbitrary guess? If one replies that it represents the jury's
    view of the defendants' conduct (as it probably did) what purpose is served
    by introducing the profit motive gateway?

    Finally, as to other torts as to which, before Rookes v. Barnard, punitive
    damages could be given but on which some restriction is evidently intended
    to be placed by the judgment. That this House, as a matter of law, or of
    legal policy, was entitled to restrict the scope of punitive damages I have,
    with all respect to the Court of Appeal, no doubt and, whatever my own
    reservations as to the wisdom of the policy, I should feel myself obliged
    to accept a new statement of principle if it were clear, consistent and
    workable and intelligibly related to the main stream of authority. That it
    was not entirely clear, appears well enough from the opinions in the present
    case: and I cannot entirely blame the Court of Appeal for attempting to
    escape from it, just as one may sympathise with a customer when he finds his
    new suit almost at once requiring alteration, or patching, for putting it aside
    and reaching for his old tweedes. There is not perhaps much difficulty
    about category 1: it is well based on the cases and on a principle stated in
    1703—" if public officers will infringe men's rights, they ought to pay greater
    " damages than other men to deter and hinder others from the like offences "
    Ashby v. White 2 Ld. Ray. 956 per Holt C.J. Excessive and insolent use of
    power is certainly something against which citizens require as much protection
    today: a wide interpretation of " government" which I understand your
    Lordships to endorse would correspond with Holt C.J.'s " public officers "
    and would partly correspond with modern needs. There would remain,
    even on the most liberal interpretation, a number of difficulties and incon-
    sistencies as pointed out by Taylor J. in Uren's case.

    I have more difficulty with the commonplace types of trespass or assault
    accompanied by insult or contumely, which, even more than " first category "
    cases touch the life of ordinary men and occupy the county courts. Although
    Lord Devlin studiously refrains from overruling earlier cases (other than
    Loudon v. Ryder) which undoubtedly proceeded on, or contained, a punitive
    element, his opinion has been understood as laying down that in future such
    cases cannot, unless the " profit motive " is present, be treated as cases for
    punitive damages but only as cases for aggravated damages. The phrase
    used has been " aggravated damages can do the work of punitive damages ".

    I understand that a majority of your Lordships, for possibly differing
    reasons, are satisfied with this so it will remain the law in this country. But,
    if only in fairness to the Court of Appeal with whose approach to this
    matter I agree, I must state very briefly why I feel some difficulty.

    I am far from clear how juries, or judges, are intended to act in the future.
    Are they to take it that the law has been changed, so that (absent a profit
    motive) only " compensatory " damages can be given, plus an element for
    " aggravation " if that is proved? I fear that there will be difficulty in seeing
    how far earlier cases, or Commonwealth cases, are now authority and that
    there will be much argument whether a particular case was one of
    " aggravated" or " punitive" damages or of both. Alternatively, if
    "aggravated damages " are " to do the work of punitive damages " and if it
    is to be supposed that juries, or judges, will continue giving damages much
    as before, then nothing has been gained by changing the label and we are
    indulging in make belief and encouraging fictional pleading. The whole point
    is well brought out by Pearson L.J. in McCarey v. Associated Newspapers
    (supra.)—" if the compensatory principle is accepted, punitive damages must
    " not be allowed to creep back into the assessment in some other guise "
    (1.c. page 105). I must confess to sympathy with the Court of Appeal's
    preference for the older system and with the objections to the new stated by
    Taylor J. in Uren's case, the weight of which clearly impressed the Privy
    Council. Their validity has been endorsed by cases post-Rookes v. Barnard
    in Australia, Canada and New Zealand. I share their doubt whether we
    have yet arrived at a viable substitute.

    57

    But I note with satisfaction and agreement the opinion expressed by the
    noble and learned lord on the Woolsack that the relevant passage in Lord
    Devlin's judgment, which he cites, should be read sensibly as a whole together
    with the authorities on which it is based. This may provide a sound basis for
    re-development of the law.

    My Lords, on all other points not expressly dealt with in this opinion I
    wish to express my concurrence with that of the Lord Chancellor. I regret
    to differ from him in thinking that the appeal should be allowed 'on the
    grounds I have stated.

    Lord Diplock

    my lords,

    The trial of this action proceeded, correctly, on the basis that as respects
    the measure of the damages which the jury might award, the judge was bound
    to direct them in accordance with the law as laid down by this House in
    Lord Devlin's speech in Rookes v. Barnard (
    [1964] AC 1129).

    I agree with all your Lordships that there was material upon which the
    jury were entitled to find that the conduct of each of the defendants brought
    the case within Lord Devlin's second category of cases in which exemplary
    or, as I would have preferred to call them, punitive damages may be awarded.
    The jury did so find by special verdicts. That part of the judge's summing-
    up in which he directed them as to the matters for their consideration in
    arriving at their findings on this issue as respects each of the defendants
    cannot be faulted.

    It was, however, also incumbent upon the judge to instruct the jury as to
    the measure of the damages which they might award if they reached the
    conclusion that the case as against each of the defendants was one in which
    they were not precluded from awarding punitive damages. On this aspect
    of the case there were two principles of law which should have been stated
    clearly to the jury. Neither was self-evident.

    The first was that, even if the jury found that the case came within Lord
    Devlin's second category and that the defendant's conduct merited punish-
    ment, it did not necessarily follow that they must award as damages to the
    plaintiff a greater sum than was sufficient to compensate him for all the
    harm and humiliation that he had suffered as a consequence of the defendants'
    tortious acts. They should take into account as part of the punishment
    inflicted on the defendants any sum (in the result £15,000) which they were
    minded to award to the plaintiff as compensatory damages ; and only if they
    thought that sum to be inadequate in itself to constitute sufficient punishment
    were they to award such additional sum as would, when added to the
    compensatory damages, amount to an appropriate penalty for the defendants'
    improper conduct.

    The second was that if the jury thought that the conduct of one of the
    joint defendants deserved to be penalised by a lesser sum than the conduct of
    the other, the most that the jury were entitled to award against the defendants
    was that lesser sum, if it were to exceed the amount which they were minded
    to award as compensatory damages.

    I have the misfortune to differ from the majority of your Lordships in
    that I find it impossible to discover in the languauge of the summing-up any
    clear statement of either of these principles. At best I think that when the
    jury retired they must have been confused as to how the punitive damages,
    if any, were to be assessed. At worst I think that they may well have thought
    that they were to arrive at a sum which they thought was an appropriate
    penalty for the defendants' conduct and to add it to any sum awarded as
    compensatory damages.

    My Lords, I do not think that on this vital question of the assessment of
    exemplary damages the jury were adequately directed. I am fortified in this
    view by my conviction that, if properly directed, no reasonable jury could
    possibly have reached the conclusion that the appropriate penalty to inflict
    on the less culpable of the defendants was £40,000 for publishing a libel of

    58

    which the victim was in their view adequately recompensed at £15,000 for
    all the harm and humiliation that it had caused to him.

    A penalty of £40,000 is, I believe, very much larger than any of your
    Lordships would have thought it appropriate to inflict upon the defendants.
    I doubt if any of your Lordships would have hesitated to interfere with it if
    it had been awarded by a judge sitting alone. He would have been vulnerable
    because he would have given his reasons. Shibboleths apart, there survive
    to-day two valid reasons why an appellate court should be more reluctant to
    disturb an assessment of damages by a jury than an assessment by a judge.
    The first is applicable to all kinds of actions. It is that a judge articulates
    his findings on the evidence and his reasoning, whereas a jury state the
    result of their findings and their reasoning but otherwise are dumb. In
    considering whether an award of damages by a jury is excessive an appellate
    court cannot do other than assume that the jury made every finding of fact
    and drew every inference that was open to it on the evidence as favourably
    as possible to the plaintiff and as adversely as possible to the defendant.
    In the instant case, however, this handicap to an appellate's court ability to
    do justice is palliated by the facts: that there was no conflict of evidence for
    them to resolve—for the defendants called none, and that the jury were given
    a partial gift of speech. By their special verdict this House has been told
    that they considered that the plaintiff would be fully compensated by £15,000.
    The second reason for reluctance to interfere with a jury's award of damages
    applies particularly to actions for defamation. It is that, unless the parties
    otherwise agree, the consequence of setting aside the jury's verdict must
    be a new trial before another jury. This involves the parties, through no
    fault of their own, in greatly increased costs which, particularly in libel
    actions, are, to the discredit of our legel system, out of all proportion even
    to the large compensatory damages awarded in the instant case. For my part,
    I should not be deflected from setting aside a jury's verdict as unreasonable by
    the fear, sometimes expressed by appellate judges, that another unreasonable
    jury might make a similar unreasonable award of damages on the new trial.
    So far as I know this has never happened yet. But the consideration of the
    costs involved is one which it would be unrealistic and unjust to ignore.
    In the instant case, however, the parties agreed that this House should
    assess the damages in the event of the jury's verdict being set aside. No
    more costs would be incurred if the appeal were allowed than if it were
    dismissed—though the incidence of them on the parties might be different.

    It may be said, and not implausibly, that there is nothing in the training
    or experience of a judge which makes him fitter than a jury to determine the
    pecuniary compensation which a plaintiff should receive for a reputation
    that is damaged or feelings that are hurt. And there may be safety in
    numbers. But it runs counter to the basis of our criminal law, in which the
    jury determine guilt and the judge determines the appropriate punishment, to
    treat the jury as better qualified than a judge to assess the pecuniary penalty
    which a defendant ought to pay for conduct which merits punishment. On
    an appeal from the jury's award of £40,000 which I know to be compensatory
    to the extent of £15,000 only, I should approach it in the same way as I
    should approach a fine of £40,000 imposed by a judge in a criminal prosecu-
    tion. Even if I thought the jury had been given an adequate direction by the
    judge, I would have set the award aside and substituted an award of
    £20,000.

    I have thought it right to express my own minority opinion as to what
    the result of this appeal should be. It is that with which the parties are
    primarily concerned—and it is they who are paying for it. It is, however,
    inherent in our legal system that owing to the manner in which the Court
    of Appeal dealt with the instant case, the unsuccessful party is also paying
    for the ruling of this House upon two questions of law of much more general
    importance. The first is as to the effect of the decision in Rookes v. Barnard
    on the assessment of damages for defamation and whether that decision
    ought to be followed. The second is as to the propriety of the manner in
    which the Court of Appeal, as an intermediate appellate court, dealt with
    the decision of this House in Rookes v. Barnard. To these two topics I
    now turn.

    59

    In Rookes v. Barnard the plaintiff's claim was for damages for the tort of
    intimidation. At the trial the Judge had summed up to the jury in terms
    which left it open to them to award exemplary damages. There was a cross-
    appeal against the amount of damages, upon which this House heard separate
    and lengthy argument. It was necessary as a matter of decision of the cross-
    appeal for this House to determine whether the facts in Rookes v. Barnard
    brought it within a category of cases in which exemplary damages were
    recoverable at common law. This House determined that they did not and
    ordered a new trial.

    There were two different processes of reasoning by which it would have
    been possible to reach this conclusion of law. One, which was not adopted
    by this House, was to hold that the particular tort of intimidation was one
    in which the common law did not permit of exemplary damages. The other,
    which was adopted by this House, was to state the categories of cases in
    which alone exemplary damages might be awarded at common law and to
    determine whether the facts in Rookes v. Barnard brought it within one of
    these categories-

    Lord Devlin's speech upon the cross-appeal in Rookes v. Barnard, in
    which all the five members who heard the appeal explicitly concurred, was
    a deliberate attempt by this House to do two things:

    1. As a matter of legal exposition, to formulate the rationale of the
      assessment of damages for torts in which damages are " at large ".

    2. As a matter of legal policy, to restrict the categories of cases in

    which damages can be awarded against a defendant in order to
    punish him, to those in which this method of inflicting punishment
    still serves some rational social purpose today.

    Lord Devlin's speech, however, does not follow the simple arrangement
    of exposition followed by choice of policy. He starts by formulating three
    heads of damages. The purpose of two of them is to compensate the
    plaintiff; that of the third is to punish the defendant. This formulation is
    followed by an analysis of the previous authorities. These authorities lead
    to the policy decision to accept two categories of cases in which exemplary
    damages may be recovered and, proleptically, to reject other categories of
    cases in which it had previously been thought that damages might be awarded
    in order to punish the defendant. He then reverts to exposition of some
    considerations which follow from the purpose served by exemplary damages
    and which should be borne in mind when awards of exemplary damages are
    made. Finally he reverts to an analysis of the previous authorities for the
    purpose of completing the policy decision by over-ruling those which were
    authority for the award of exemplary damages where the injury to the
    plaintiff had been aggravated by malice or by the manner of doing the
    injury, that is, the insolence or arrogance by which it was accompanied

    It is, however, convenient for the purposes of the instant appeal to deal
    with exposition and with policy separately.

    The three heads under which damages are recoverable for those torts for
    which damages are " at large " are classified under three heads.

    1. Compensation for the harm caused to the plaintiff by the wrongful
      physical act of the defendant in respect of which the action is
      brought. In addition to any pecuniary loss specifically proved the
      assessment Of this compensation may itself involve putting a money
      value upon physical hurt, as in assault, upon curtailment of liberty,
      as in false imprisonment or malicious prosecution, upon injury to
      reputation, as in defamation, false imprisonment and malicious prose-
      cution, upon inconvenience or disturbance of the even tenor of life,
      as in many torts, including intimidation.

    2. Additional compensation for the injured feelings of the plaintiff
      where his sense of injury resulting from the wrongful physical act
      is justifiably heightened by the manner in which or motive for which
      the defendant did it. This Lord Devlin calls " aggravated damages ".

    60

    (3) Punishment of the defendant for his anti-social behaviour to the
    plaintiff. This Lord Devlin calls " exemplary damages ". I should
    have preferred the alternative expression " punitive damages " to
    emphasise the fact that their object is not to compensate the plaintiff
    but to punish the defendant and to deter him, and perhaps others,
    from committing similar torts. To avoid confusion I have, however,
    accepted the lead of the Lord Chancellor in adhering to Lord
    Devlin's adjective " exemplary ".

    It may seem remarkable that there had not previously been any judicial
    analysis, even as elementary as this, of the constituent elements of the
    compound "damages at large". But it has to be remembered that at
    common law the assessment of damages was the exclusive function of a
    jury, and, despite growing exceptions from the mid-nineteenth century
    onwards, nearly all actions for torts in which damages were at large were
    tried by jury until after 1933. The assessment of damages was an arcanum
    of the jury box into which judges hesitated to peer; and it does not
    appear to have been their practice to give any direction to the jury as to
    how they should arrive at the amount of damages they should award, beyond
    some general exhortation to do their best in a matter which was peculiarly
    within their sphere.

    What is disclosed by an examination of previous judgments since the
    eighteenth century, given upon applications for a new trial on the grounds
    that the award of a jury was too large or too small, is a confusion of
    language and consequently of thought as to what were the constituent
    elements in an award of damages at large. In particular there is a complete
    failure to distinguish between aggravated and exemplary damages in cases
    where the malice of the defendant or the manner in which he did the wrongful
    act had both increased the injury to the plaintiff's feelings and aroused
    the indignation of the jury themselves.

    In addition to the cases specifically referred to by Lord Devlin in Rookes
    v. Barnard, your Lordships have been referred to many others in the course
    of the argument in the instant appeal. They serve but to confirm the
    confused state of the law upon this subject before 1964.

    The tort of defamation, to which Lord Devlin made only a passing
    reference in Rookes v. Barnard, has special characteristics which may make
    it difficult to allocate compensatory damages between Head (1) and Head (2).
    The harm caused to the plaintiff by the publication of a libel upon him often
    lies more in his own feelings, what he thinks other people are thinking
    of him, than in any actual change made manifest in their attitude towards
    him. A solatium for injured feelings, however innocent the publication by
    the defendant may have been, forms a large element in the damages under
    Head (1) itself even in cases in which there are no grounds for " aggravated
    " damages " under Head (2). Again the harm done by the publication, for
    which damages are recoverable under Head (1) does not come to an end
    when the publication is made. As Lord Atkin said in Ley v. Hamilton ((1935)
    153 L.T. 384 at 386): " It is impossible to track the scandal, to know what
    " quarters the poison may reach ". So long as its withdrawal is not com-
    municated to all those whom it has reached it may continue to spread.
    I venture to think that this is the rationale of the undoubted rule that
    persistence by the defendant in a plea of justification or a repetition of the
    original libel by him at the trial can increase the damages By doing so he
    prolongs the period in which the damage from the original publication
    continues to spread and by giving to it further publicity at the trial, as in
    Ley v. Hamilton, extends the quarters that the poison reaches. The defend-
    ant's conduct between the date of publication and the conclusion of the trial
    may thus increase the damages under Head (1). In this sense it may be
    said to " aggravate " the damages recoverable as, conversely, the publication
    of an apology may " mitigate " them. But this is not " aggravated damages "
    in the sense that that expression was used by Lord Devlin in Head (2).
    On the other hand the defendant's conduct after the publication may also
    afford cogent evidence of his malice in the original publication of the libel
    and thus evidence upon which "aggravated damages" may be awarded

    61

    under Head (2) in addition to damages under Head (t). But although
    considerations such as these may blur the edges of the boundary between
    compensatory damages under Head (1) and compensatory damages under
    Head (2) in the case of defamation, they do not affect the clear distinction
    between the concept of compensatory damages and the concept of exemplary
    damages under Head (3).

    My lords, the major clarification of legal reasoning to be found in the
    expository part of Lord Devlin's speech in Rookes v. Barnard was the
    recognition, first, that the award of a single sum of money as damages
    for tort, while it must always peform the function of giving to the plaintiff
    what he deserves to receive to compensate him fully for the harm done to
    him by the defendant, may in appropriate cases also perform the quite
    different function of fining the defendant what he deserves to pay by way
    of punishment; and secondly, that even in those appropriate cases, it is
    only if what the defendant deserves to pay as punishment exceeds what the
    plaintiff deserves to receive as compensation, that the plaintiff can be also
    awarded the amount of the excess. This is a windfall which he receives
    because the case happens to be one in which exemplary damages may be
    awarded.

    It is not necessary to dwell upon the three considerations which Lord
    Devlin referred to as arising from the nature and function of punitive
    damages. The first consideration qualifies the categories of cases in which
    exemplary damages may be awarded. The plaintiff must himself have
    been the victim of the conduct of the defendant which merits punishment:
    he can only profit from the windfall if the wind was blowing his way.
    The second consideration is relevant to the attitude of an appellate court
    to a jury's assessment of exemplary damages. I have already taken it into
    account in forming my conclusion that the jury's award of £40,000 ought to
    be set aside. The third conclusion relates to the relevance of the defendant's
    means to any assessment of punitive damages in excess of the amount
    required to compensate the plaintiff.

    These three considerations are followed by the crucial exposition of the
    way in which a jury should be directed in a case in which it is open to them
    to award punitive damages. I have already dealt with this in the first
    criticism which I have made of the summing up at the trial in the instant
    case.

    It should perhaps be pointed out that Lord Devlin did not suggest that
    in a case which clearly came within a category which justified an award of
    exemplary damages the jury should be invited to make separate awards in
    respect of the compensatory and the punitive element, although no doubt
    a judge sitting alone should do so. It was only in cases where it might
    be doubtful whether exemplary damages were permissible that he suggested
    that special verdicts splitting the total award might serve a useful purpose
    in avoiding the necessity of a new trial in the event of appeal.

    It has not been contended that those parts of Lord Devlin's speech which
    expounded the rationale of the award and the assessment of exemplary
    damages in those cases in which they could be recovered did not serve
    a useful purpose which lay well within the functions of this House in its
    judicial capacity. It brought some order out of chaos, some light and
    reason into what was previously a dark and emotive branch of the common
    law. What has been criticised is the decision of legal policy to restrict the
    categories of cases in which exemplary damages may be awarded.

    If the common law stood still while mankind moved on, your Lordships
    might still be awarding bot and wer to litigants whose kinsmen thought
    the feud to be outmoded—though you could not have done so to the
    plaintiff in the instant appeal, because defamation would never have become
    a cause of action. The common law would not have survived in any of
    those countries which have adopted it, if it did not reflect the changing
    norms of the particular society of which it is the basic legal system. It has
    survived because the common law subsumes a power in judges to adapt
    its rules to the changing needs of contemporary society—to discard those
    which have outlived their usefulness, to develop new rules to meet new
    62

    situations. As the supreme appellate tribunal of England, your Lordships
    have the duty, when occasion offers, to supervise the exercise of this power
    by English courts. Other supreme appellate tribunals exercise a similar
    function in other countries which have inherited the English common law
    at various times in the past. Despite the unifying effect of that inheritance
    upon the concept of man's legal duty to his neighbour, it does not follow
    that the development of the social norms in each of the inheritor countries
    has been identical or will become so. I do not think that your Lordships
    should be deflected from your function of developing the common law of
    England and discarding judge made rules which have outlived their purpose
    and are contrary to contemporary concepts of penal justice in England,
    by the consideration that other courts in other countries do not yet regard
    an identical development as appropriate to the particular society in which
    they perform a corresponding function. The fact that the courts of Australia,
    of New Zealand and of several of the common law Provinces of Canada
    have failed to adopt the same policy decision on exemplary damages as
    this House did for England in Rookes v. Barnard affords a cogent reason
    for re-examining it; but not for rejecting it if, as I think to be the case,
    re-examination confirms that the decision was a step in the right direction
    —though it may not have gone as far as could be justified.

    The award of damages as the remedy for all civil wrongs was in England
    the creature of the common law. It is a field of law in which there has
    been but little intervention by parliament. It is judge-made law par
    excellence.
    Its original purpose in cases of trespass was to discourage
    private revenge in a primitive society inadequately policed, at least as much
    as it was to compensate the victim for the material harm occasioned to
    him. Even as late as 1814 Heath J. felt able to say: " It goes to prevent
    " the practice of duelling if juries are permitted to punish insult by exem-
    " plary damages." (Merest v. Harvey 5 Tawnt. 442.)

    No one would to-day suggest this as a justification for rewarding the
    victim of a tort for refraining from unlawful vengeance on the wrong-doer.
    Conversely, the punishment of wrong-doers to-day is regarded as the func-
    tion of the State to be exercised subject to safeguards for the accused
    assured to him by the procedure of the criminal law and with the appro-
    priate punishment assessed by a dispassionate judge and not by a jury
    roused to indignation by partisan advocacy. One of the most significant
    and humane developments in English law over the past century and a half
    has been the increasing protection accorded to the accused under our system
    of criminal justice. As my noble and learned friend Lord Reid has pointed
    out no similar protection is available to a defendant as a party to a civil
    action.

    So the survival into the latter half of the twentieth century of the power
    of a jury in a civil trial to impose a penalty on a defendant simply to
    punish him had become an anomaly which it lay within the power of this
    House in its judicial capacity to restrict or to remove; though it would
    have been anticipating by two years the recent change in the practice of
    this House if to have done so would have involved over-ruling one of its
    own previous decisions.

    Lord Devlin's analysis of previous decisions disclosed three kinds of cases
    in which the courts had recognised the right of a jury to award damages by
    way of punishment of the defendant in excess of what was sufficient to com-
    pensate the plaintiff for all the harm occasioned to him. The categorisation
    was new. Its purpose has, I think, been misunderstood. No one suggests
    that judges, when approving awards of exemplary damages in particular
    cases in the past consciously differentiated between one kind of case in which
    exemplary damages could be awarded and another. They dealt with them
    all as falling within a single nebulous class of cases in which the defendant's
    conduct was such as to merit punishment. The purpose of Lord Devlin's
    division of them into three categories was in order to distinguish between
    factual situations in which there was some special reason still relevant in
    modern social conditions for retaining the power to award exemplary
    damages, and factual situations in which no such special reason still survived

    63

    With this end in view Lord Devlin extracted from the single nebulous
    class which appeared to be all that had been consciously recognised as justi-
    fying an award of exemplary damages at common law, two categories of
    cases in which this House decided that there were special reasons why the
    power to award exemplary damages should be retained. These two (apart
    from cases where exemplary damages are authorised by statute) are gener-
    ally referred to as " the categories ". But there is also to be found in the
    previous cases a third category, consisting of the remainder of the single
    nebulous class in which this House decided that the anomalous practice of
    awarding exemplary damages in civil proceedings ought to be discontinued.

    The first category comprised cases of abuse of an official position of
    authority. This would seem to be analogous to the civil law concept of
    detournement de pouvoir, with the limitation that it must involve the com-
    mission of an act which would be tortious if done by a private individual.
    The cases cited are two hundred years old. It would not appear that the
    actual conduct of the defendant himself need justify an award of aggra-
    vated damages. In Huckle v. Money (1763 2 Wits. K.B. 205) the defendant
    appears to have treated the plaintiff with courtesy and consideration. The
    servant was the whipping-by for the political head of the government. Nor
    need he have known that his act was wrongful. Money, a mere subordinate
    official, can hardly have been expected to know that general warrants issued
    by the Secretary of State were illegal. In Wilkes v. Wood (1763 Lofft V.I.),
    however, it was said that a belief that the act impugned was lawful could
    be pleaded in mitigation of damages.

    The second category was of cases where an act known to be tortious
    was committed in the belief that the material advantages to be gained by
    doing so would outweigh any compensatory damages which the defendant
    would be likely to have to pay to the plaintiff. This would seem to be
    analogous to the civil law concept of enrichessement indue subject to a
    similar limitation that the act resulting in enrichment must be tortiuous.
    The cases cited by Lord Devlin do not include underground trespass to
    minerals, which provide the classic examples in the nineteenth century of
    this category of tort. There is high authority both in this House (Living-
    stone
    v. Rawyards Coal Co. [1880] 5 App. Cas. 25) and in the Privy Council
    (Bulli Coal Mining Co. v. Osborne
    [1899] AC 351) that in the case of wilful
    clandestine trespass to minerals the damages may be assessed at the market
    value of the minerals without deduction for the cost of working—an award
    which would exceed both the loss to the plaintiff and the profit to the
    defendant from his wrongful act. The excess is punishment.

    The third—and rejected—category is numerically by far the largest. It
    consists of cases in which the manner in which the tort has been committed
    has attracted a whole gamut of dyslogistic judicial epithets such as wilful,
    wanton, high-handed, oppressive, malicious, outrageous; particularly those
    where the defendant's manner of doing the tortious act has been characterised
    by arrogance or insolence or, in the preferred Australian phrase, a contume-
    lious disregard of the plaintiff's rights. These are nearly all cases in which
    " aggravated damages" by way of compensation apart from punishment
    can be awarded and much of the previous confusion about exemplary
    damages stems from this.

    Apart from this confusion or perhaps because of it, I do not doubt that
    it was the general understanding of English judges and of those who
    practised in the English courts that exemplary damages by way of punishment
    of the defendant as well as aggravated damages by way of compensation of
    the plaintiff could be awarded in cases which fall within the third category.
    Lord Devlin's speech in Rookes v. Bernard explicitly acknowledges this.
    It was an understanding which he himself had shared. He had given effect
    to it in his own summing-up in London v. Ryder ([1953] 2 Q.B. 202).

    The decision of legal policy which this House made in Rookes v. Bernard
    was to retain the first two categories and to discard the third as obsolete.

    In describing the two categories retained I have deliberately departed
    from the ipsissima verba of Lord Devlin's description of them. His state-
    ment of the categories was not intended as a definition to be construed as if
    it were enacted law. They were retained because this House considered

    64

    that there were circumstances in which a power to award exemplary damages
    still served a useful social purpose and the descriptive words must be
    understood in the light of the social purpose which they were designed
    to serve.

    My Lords, had I been party to the decision in Rookes v. Bernard I doubt
    if I should have considered it still necessary to retain the first category.
    The common law weapons to curb abuse of power by the executive had
    not been forged by the mid-eighteenth century. In view of the develop-
    ments, particularly in the last twenty years, in adapting the old remedies
    by prerogative writ and declaratory action to check unlawful abuse of power
    by the executive, the award of exemplary damages in civil actions for tort
    against individual government servants seems a blunt instrument to use
    for this purpose to-day. But if it is to be retained—a question which
    cannot arise in the instant appeal—the reasoning which supports its retention
    would not confine it to torts committed by servants of central government
    alone. It would embrace all persons purporting to exercise powers of
    government, central or local, conferred upon them by statute or at common
    law by virtue of the official status or employment which they held.

    I have no similar doubts about the retention of the second category. It
    too may be a blunt instrument to prevent unjust enrichment by unlawful
    acts. But to restrict the damages recoverable to the actual gain made by
    the defendant if it exceeded the loss caused to the plaintiff, would leave a
    defendant contemplating an unlawful act with the certainty that he had
    nothing to lose to balance against the chance that the plaintiff might never
    sue him or, if he did, might fail in the hazards of litigation. It is only if
    there is a prospect that the damages may exceed the defendant's gain that
    the social purpose of this category is achieved—to teach a wrong-doer that
    tort does not pay.

    To bring a case within this category it must be proved that the defendant,
    at the time that he committed the tortious act, knew that it was unlawful
    or suspecting it to be unlawful deliberately refrained from taking obvious
    steps which, if taken, would have turned suspicion into certainty. While, of
    course, it is not necessary to prove that the defendant made an arithmetical
    calculation of the pecuniary profit he would make from the tortious act
    and of the compensatory damages and costs to which he would render
    himself liable, with appropriate discount for the chances that he might get
    away with it without being sued or might settle the action for some lower
    figure, it must be a reasonable inference from the evidence that he did
    direct his mind to the material advantages to be gained by committing the
    tort and came to the conclusion that they were worth the risk of having
    to compensate the plaintiff if he should bring an action.

    I see no reason for restoring to English law the anomaly of awarding
    exemplary damages in the third category of cases. If malice with which a
    wrongful act is done or insolence or arrogance with which it is accompanied
    renders it more distressing to the plaintiff his injured feelings can still be
    soothed by aggravated damages which are compensatory. I share the
    scepticism expressed by Windeyer J. in Uren v. John Fairfax & Sons Pty.
    Ltd.
    (117 C.L.R. 118 at p. 151-2) as to whether what was in the defendant's
    mind at the time he committed the tort really increases the injury to the
    plaintiff's feelings. I think too that an evanescent sense of grievance at the
    defendant's conduct is often grossly over-valued in comparison with a
    lifelong deprivation due to physical injuries caused by negligence. But
    my own equable temperament may be idiosyncratic and the law of " aggra-
    " vated damages" does not call for closer examination in the instant
    appeal.

    Finally on this aspect of the case I would express my agreement with the
    view that Rookes v. Barnard was not intended to extend the power to award
    exemplary or aggravated damages to particular torts for which they had not
    previously been awarded ; such as negligence and deceit. Its express purpose
    was to restrict, not to expand, the anomaly of exemplary damages.

    My Lords, there is little that I should wish to add to what the Lord
    Chancellor and my noble and learned friend Lord Reid have already said
    about the way the instant case was treated in the Court of Appeal. It is

    65

    inevitable in a hierarchical system of courts that there are decisions of
    the supreme appellate tribunal which do not attract the unanimous ap-
    proval of all members of the Judiciary. When I sat in the Court of Appeal
    I sometimes thought the House of Lords was wrong in over-ruling me. Even
    since that time there have been occasions, of which the instant appeal itself
    is one. when, along or in company, I have dissented from a decision of
    the majority of this House. But the judicial system only works if someone
    is allowed to have the last word and if that last word, once spoken, is loyally
    accepted.

    The Court of Appeal found themselves able to disregard the decision of
    this House in Rookes v. Barnard by applying to it the label per incuriam.
    That label is relevant only to the right of an appellate court to decline to
    follow one of its own previous decisions, not to its right to disregard a
    decision of a higher appellate court or to the right of a Judge of the High
    Court to disregard a decision of the Court of Appeal. Even if the juris-
    diction of the Court of Appeal had been co-ordinated with the jurisdiction
    of this House and not inferior to it the label per incuriam would have been
    misused. The reasons for applying it were said to be: first, that Lord Devlin
    had overlooked two previous decisions of this House in Hulton v. Jones
    ([1910] A.C. 20) and Ley v. Hamilton (ubi sup); secondly, that the "two
    categories " selected as those in which the power to award exemplary damages
    should be retained had not been previously suggested by counsel in the
    course of their arguments.

    I find the suggestion that Hulton v. Jones, the leading case on innocent
    defamation, is to be regarded as an authority for an award of exemplary
    damages, quite unacceptable. Ley v. Hamilton was discussed at some length
    in Lord Devlin's speech. I myself agree with his interpretation of Lord
    Atkin's speech. The Court of Appeal did not and in this they now have the
    powerful support of my noble and learned friend Viscount Dilhorne. But
    however wrong they may have thought Lord Devlin was, they cannot have
    thought that he had overlooked Ley v. Hamilton.

    The second reason I find equally unconvincing. On matters of law no
    court is restricted in its decision to following the submissions made to it by
    counsel for one or other of the parties. After listening to a lengthy argu-
    ment which embraced a full examination of a large and representative selec-
    tion of the relevant previous authorities this House was fully entitled to come
    to a conclusion of law and legal policy different from that which any individual
    counsel had propounded.

    With regard to the amount of exemplary (and also aggravated) damages
    which may be awarded where the plaintiff elects to sue defendants jointly for
    a single tort, I agree with the Lord Chancellor that the Court of Appeal got
    it wrong. Where I differ from him is in thinking that the trial judge got it
    right. I am fortified in this view by the fact that Lord Denning MR.
    understood the summing-up as leaving to the jury a choice whether to award
    a sum appropriate as a punishment of the more blameworthy of the defendants
    or the less blameworthy or something in between the two sums. Salmon L.J.
    appears to have taken the same view. Both thought that this was a correct
    (statement of the law. In this I think that they were mistaken as to the
    law, but right as to what the jury would have understood the summing-up to
    mean.

    On the wider aspects of the course adopted by the Court of Appeal it is
    best that I should content myself with expressing my concurrence with all that
    the Lord Chancellor has said.

    Lord Kilbrandon

    my lords,

    There are several reasons which induce me to be as brief as I can. First,
    the case in its important general aspects is concerned with doctrines, and
    to some extent with procedures, with which I am not familiar. Secondly,

    66

    those general aspects have been examined in great detail and in an authorita-
    tive manner by your Lordships who have preceded me. Thirdly, since it is
    unlikely that any contribution of mine would be regarded as of value in
    clarifying the law of England, I may at least wind up the consideration of a
    disastrous case with economy, the lack of which, especially in this class of
    litigation, is, as others of your Lordships have observed, a notoriously
    discreditable feature of our jurisprudence. In short, having had the advantage
    of reading the speeches prepared by my noble and learned friends the Lord
    Chancellor, Lord Reid and Lord Morris of Borth-y-Gest, I agree with them.

    It is conceded by the Appellants that they libelled the Respondent, and
    they do not attack as excessive the sum awarded by the jury as compensation
    for the damage they did to his feelings and his reputation. It is also con-
    ceded that, if there was evidence upon which a properly directed jury could
    find that the Appellants had calculated that they might make a profit from
    publication which might exceed the compensation payable to the plaintiff,
    then, since " one man should not be allowed to sell another man's reputa-
    " tion for profit", and since it may " be necessary to teach a wrong-doer
    " that tort does not pay ", the jury were entitled to award punitive damages,
    on the authority of Rookes v. Barnard
    [1964] AC 1129. The first question,
    and one which from first to last occupied a very great deal of time in your
    Lordships' House, was whether there was such evidence.

    I have no doubt on this point at all, and I do not rehearse the evidence.
    The jury had before them the state of the Appellants' knowledge before
    publication—that the Respondent had warned them that he regarded certain
    passages as libellous, that professional naval opinion was to the same effect,
    and. above all, that another reputable publisher had refused to handle the
    book because of its defamatory character. The Appellants' attitude is
    demonstrated by their written references to libel actions as affording " first
    " class publicity ", and to " tightening up the indemnity clause ". No doubt
    there was an element of the jocular in these remarks, but they do show that
    the Appellants were going ahead with their eyes open as to consequences,
    and they must have thought it would be worth their while.

    Counsel for the Appellants pointed out, and I for one agree, that since
    all commercial publication is undertaken for profit, one must be watchful
    against holding the profit-motive to be sufficient to justify punitive damages:
    to do so would be seriously to hamper what must be regarded, at least
    since the European Convention was ratified, as a constitutional right to free
    speech. I can see that it could be in the public interest that publication
    should not be stopped merely because the publisher knows that his material
    is defamatory ; it may well be in the public interest that matter injurious
    to others be disseminated. But if it were suggested that this freedom should
    also be enjoyed when the publisher either knows that, or does not care
    whether, his material is libellous—which means not only defamatory but also
    untrue—it would seem that the scale is being weighted too heavily against
    the protection of individuals from attacks by media of communication.

    The conduct of the Appellants, accordingly, is in my view brought within
    the principle of the rule laid down in Rookes v. Barnard to which I have
    just referred. If a publisher knows, or has reason to believe, that the act
    of publication will subject him to compensatory damages, it must be that,
    since he is actuated by the profit-motive, he is confident that by that publica-
    tion he will not be the loser. Some deterrent, over and above compensatory
    damages, may in these circumstances be called for.

    This leads me to the little I have to say on the doctrine of punitive
    damages. I do not propose to discuss its merits or demerits, because I agree
    with Lord Devlin, not only that it forms part of the law of England, but also
    that its abolition would not be within the judicial functions of this House.
    I will, however, add that I am not convinced that any statutory example
    of the recognition of the doctrine is to be found. By the Law Reform
    (Miscellaneous Provisions) Act, 1934, it is provided that where a cause of
    action survives for the benefit of the estate of a deceased person, the
    damages recoverable for the benefit of that estate shall not include any
    exemplary damages. In the previous subsection provision had also been

    67

    made, per contra, for causes of action subsisting against the estates of
    deceased persons. Since punitive damages are punitive or deterrent against
    the author of them, it would have been understable if the statute had refused
    to allow them against a dead man. But, instead, they have been disallowed
    when they are claimed in respect of an injury to a dead man. This leads
    me to suppose that by the phrase " exemplary damages " Parliament was
    here referring to what are usually called " aggravated " damages; the estate
    of a dead man must pay them in order to indemnify the living, but the
    estate of a dead man, whose feelings post mortem have become irrelevant,
    does not receive them.

    In the same sense I would interprete section 13 (2) of the Reserve and
    Auxiliary Forces (Protection of Civil Interests) Act, 1951, which provides
    for the award, in certain circumstances, of " exemplary damages ". Section
    13 (2) applies, by virtue of section 13 (6), to Scotland, and since I can hardly
    believe that this Act introduced for the first time, as it were by a side-wind,
    the doctrine of punitive damages into the law of Scotland, I conclude again
    that " exemplary " really means " aggravated ". Aggravated damages, in
    the English sense, are available to pursuers in defamation cases in Scotland,
    subject to this qualification, that the conduct of counsel (cf. Greenland's Ltd.
    v. Wilmshurst [1913] 3 K.B. 507) is not accepted as an aggravation unless that
    conduct has been on the express instructions, or with the privity, of counsel's
    client—see James v. Baird 1916 S.C. 510. Finally, Lord Devlin (at page 1225)
    doubted whether section 17 (3) of the Copyright Act, 1956, authorised an
    award of exemplary damages: in my opinion it did not.

    I do not suppose that anyone now sitting down to draft a Civil Code
    would include an article providing for punitive damages. But the doctrine
    exists, and in my respectful opinion the rationale of it is explained, by
    illustrations as apt as one could find, in the speech of Lord Devlin. The
    doctrine proceeds upon the footing, whether sound or not, that in some torts,
    and in some circumstances, there is an element of public interest to be
    protected. The only way in which that can be done may be by awarding
    to a plaintiff a sum of damages which he does not deserve, being in excess
    of any loss or injury he has suffered ; that sum includes an element calculated
    to deter the defendant, and other like-minded persons, from committing
    similar offences. One example, which is Lord Devlin's second category, I
    have already noticed—the publisher who does not mind paying compensatory,
    even aggravated damages for libel, because he will still have a profit after
    paying them. It is not in the public interest, especially as the publishing
    agencies become more and more monolithic, that such conduct should go
    unchecked, and no remedial measures other than punitive damages seem to
    be open. A second example—Lord Devlin's first category—is in the sphere
    of public authority. While, as some of your Lordships have pointed out, the
    illustration may have been too narrowly drawn, the rationale is clear, and
    is the same. An example might be, an outrageous excess of official authority
    without any aggravating circumstances (cf. Huckle v. Money (1763) 2 Wils.
    K.B. 205) resulting in the wrongful imprisonment of a person of bad character.
    False imprisonment is primarily actionable as an injury to reputation. If
    the plaintiff has none to lose, the amount of his compensatory damages may
    be inadequate to deter, in the public interest, flagrant injustices of this
    character.

    The exclusion of the " common bully " category, and the consequent over-
    ruling of London v. Ryder [19531]2 Q.B. 202, are entirely consistent with
    this principle. Very large compensatory damages, which should be adequate
    deterrent, are proper in such cases, and in most of them the criminal law
    can also take care of the public interest.

    I accordingly accept that the case of Rookes v. Barnard, as it has now
    been expounded by my noble and learned friend, Lord Reid, correctly states
    the law of England. It cannot be said, and it does not purport, to state the
    law of Scotland ; it may be that in other parts of the Commonwealth also
    it is not, for what may be very different reasons, acceptable. Nevertheless
    it appears to me to give content to the doctrine of punitive damages, and
    to set proper limits upon it.

    68

    The trial having been correctly and inevitably conducted upon the basis
    of Rookes v. Barnard as then understood, the question now arises whether
    the learned judge gave the jury adequate and accurate directions in law
    on that basis. First, did he fail to make it clear to "the jury that, if they
    had made an award of compensatory damages, any additional award by way
    of punitive damages could be made " if but only if" the amount of the
    compensatory damages did not itself constitute a sufficient deterrent?
    The second objection was that the learned judge gave an inadequate direc-
    tion as to the course to be followed by the jury should they find punitive
    damages due, but a different degree of culpability in the two defendants.
    I think it is sufficient for me to say that I agree with those of your Lord-
    ships who are of opinion that the directions, in both matters, were adequate.

    The aspect of the case which has given me the greatest difficulty is the
    question whether the total amount of the damages awarded is so excessive
    that the verdict cannot stand. That it is excessive I do not doubt, but
    that is not a sufficient reason for the award to be set aside. The assessment
    of damages in such cases as this is not, in our law, a judicial function.
    In so far as compensatory damages are concerned, it may well be right
    that that should be so. If he were called on to estimate the sum appro-
    priate to repair the injured feelings and damaged reputation of a citizen
    who had been defamed, a judge would be making not a legal, but some-
    thing more like a social, assessment: there is no reason to suppose that his
    estimate would more probably be correct than would that made collectively
    by any twelve sensible men and women. So when one looks at a jury's
    award in such a case one has to ask, whether it could have been made by
    sensible people acting reasonably, or whether it must have been arrived at
    capriciously, unconscionably, or irrationally. On that test, I think the
    present award must stand. Moreover, it is not unprecedented. For
    example, in a case in which the libel was in some ways less wounding than
    the present— Yousoupoff v. Metro-Goldwyn-Mayer (1934) 50 T.L.R. 581)—
    an award, adjusted for the change in money values, of well over twice as
    large as this was upheld by experienced judges.

    The same test, as the law now stands, must be applied to a jury's award
    of punitive damages. Whether this should be so is another matter ; it is
    arguable that the assessment of punishment is not properly a jury's function,
    and ought more readily to be challengeable on appeal to a judicial autho-
    rity. It is obvious that, as counsel for the Appellants forcibly pointed out,
    a defendant against whom punitive damages is sought stands to a great ex-
    tent stripped of the constitutional safeguards which would be his right were
    he arraigned before a criminal court. One of those safeguards is a calm
    judicial determination of the penalty appropriate to his offence. Perhaps,
    if the doctrine of punitive damages is to be retained, it ought to be made a
    condition precedent of their being asked for that the plaintiff forego his
    right to have the case tried by a jury; it is not likely that a defendant would
    wish to stand on his own right in that respect.

    So, although I would myself have assessed the damages at a much smaller
    sum, I cannot say that the award, on the principles under which we now
    operate, ought not to stand, or that, were a new trial to be ordered, the
    result would, in my confident opinion, be substantially different.

    Finally, I do not consider it necessary for me to say anything on the issue
    of the relations between this House and the Court of Appeal, except that I
    entirely agree with what has fallen from the Lord Chancellor on this topic.

    I would, accordingly, dismiss this appeal.

    (322814) Dd. 197075 150 2/72 St.S.



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