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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] UKHL 3, [1972] 2 WLR 645, [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] 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.

    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 A.C. 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] 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 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