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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) URL: http://www.bailii.org/uk/cases/UKHL/1972/3.html Cite as: [1972] UKHL 3, [1972] 2 WLR 645, [1972] AC 1027 |
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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
THE RESULT OF THE TRIAL
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] A.C. 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.
THE APPEAL TO THE COURT OF APPEAL
JUDGMENT OF THE COURT OF APPEAL
3
THE COURSE TAKEN BY THE COURT OF APPEAL
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.
"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."
THE MERITS OF THE APPEAL
(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
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.]
" 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
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
THE LAW BEFORE ROOKES v. BARNARD
" Prior to Rookes v.
Barnard, the law as to exemplary damages was
" settled
".
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?
"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."
WHERE SOLATIUM IS ENOUGH
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] A.C. 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 covets—which 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