[HOUSE OF LORDS]

DAKHYL v. LABOUCHERE. (NOTE)

NOTE (see ante, p. 309 (1)).

THIS was an appeal from a decision of the Court of Appeal, setting aside a verdict and judgment for 1000l. in favour of the appellant (the plaintiff in the action) and ordering a new trial.

The appellant was a doctor of medicine, a bachelor of science, and a bachelor of arts in the University of Paris; and he had since August, 1902, practised as a doctor in Kensington, specializing in the treatment of diseases of the ear, nose, and throat.

The respondent was the editor and proprietor of the newspaper called Truth. In the issue of that paper dated April 2, 1903, he had published the following paragraph relating to the appellant:-

"Sundry inquiries have reached me during the last week or two respecting one Dr. H. N. Dakhyl, of 178, Holland Road, Kensington, who appends to his name the symbols 'B.Sc., B.A., M.D. Paris, &c.,' and describes himself as 'a specialist for the treatment of deafness, ear, nose, and throat diseases.' Possibly this gentleman may possess all the talents which his alleged foreign

degrees denote, but, of course, he is not a qualified medical practitioner, and he happens to be the late 'physician' to the notorious Drouet Institute for the Deaf. In other words, he is a quack of the rankest species. I presume that he has left the Drouet gang in order to carry on a 'practice' of the same class on his own account, and probably he is well qualified to succeed in that peculiar line."

The appellant (the plaintiff) then brought this action claiming damages for libel. The respondent, in his defence, pleaded justification and fair comment. The action was tried before the Lord Chief Justice and a special jury, and resulted, as above stated, in a verdict and judgment for the appellant. On the motion of the respondent, the Court of Appeal (Collins M.R. and Stirling and Mathew L.JJ.) on July 28, 1904, set aside the verdict and judgment and ordered a new trial, on the grounds that the jury might not have sufficiently apprehended from the summing up of the Lord Chief Justice (1.) that it was for them to decide whether the words complained of were defamatory of the appellant; and (2.) the nature and extent of the defence of fair comment.

From this decision the appellant (the plaintiff) appealed.

The effect of the summing up sufficiently appears from the judgments of the Lord Chancellor and Lord Atkinson.

Sir Edward Clarke, K.C., and Hon. Malcolm Macnaghten, for the appellant.

Shee, K.C., Eldon Bankes, K.C., and Hugh Fraser, for the respondent.

LORD LOREBURN L.C. My Lords, in this case, which was one of libel, the Court of Appeal has ordered a new trial, and I am driven to the conclusion that no other order is possible. The pith of the libel is that the defendant wrote of plaintiff as a "quack of the rankest species" in connection with his service on the staff of the Drouet Institute. The defendant denounced the Drouet Institute, on what he claimed to be public grounds, as an organized system for dishonestly obtaining money from persons suffering from deafness in hope of a cure. The defendant pleaded that his accusation against the plaintiff was true, and also that it was protected as a fair comment upon a matter of public interest. The jury found a verdict for the plaintiff for 1000l. I rest my opinion that the verdict cannot stand upon two grounds. In the first place, the defendant was entitled to have the jury's decision, on his plea of justification, whether the words used were true in the plain meaning which the jury might attach to them. Unfortunately the learned judge told the jury more than once that the term "quack" meant a pretender to skill which the pretender did not possess. If that were a sound direction, and really it was put as a direction, there could not be a verdict on this point against the plaintiff, for admittedly he possessed skill. But there are other meanings of the word "quack," such as a person who, however skilled, lends himself to a medical imposture. The jury were the persons to affix the true meaning to the words and to say whether or not it fitted the plaintiff. But they had not the chance if they followed the judge's direction. In the second place, the defendant was, in my opinion, entitled to have the jury's decision, as to the plea of fair comment, whether or not, in all the circumstances proved, the libel went beyond a fair comment on the

plaintiff and on the system of medical enterprise with which he associated himself, as a matter of public interest treated by the defendant honestly and without malice. The plea of fair comment does not arise if the plea of justification is made good, nor can it arise unless there is an imputation on a plaintiff. It is precisely where the criticism would otherwise be actionable as a libel that the defence of fair comment comes in. But the learned judge put aside that defence, and told the jury that unless a justification was proved they were bound to find a verdict for the plaintiff, and that, unless justified, the libel is not fair comment and cannot come within the region of fair comment. I agree in what Sir Edward Clarke said to us of the evil which may flow from an order for a new trial in this case. In all cases it is a most deplorable result, not to be entertained upon any but the most solid grounds, as the only means of redressing a clear miscarriage. In the present case I regret it all the more, because the amount of the verdict seems to indicate that the jury took the plaintiff's view of the facts. But I cannot reconcile myself to allowing a verdict to stand when I am convinced that the opinion of the jury was not really taken on two vital points on which the defendant was in law entitled to insist and did insist.

LORD ROBERTSON. I entirely concur in the judgment just delivered by my noble and learned friend on the woolsack.

LORD ATKINSON. My Lords, I concur in the opinion that the appeal should be dismissed and the judgment of the Court of Appeal affirmed. [His Lordship then referred to certain passages in the summing up of the Lord Chief Justice, and continued:-] From these and other passages to the same effect contained in the summing up, it is, I think, clear that at the trial Mr. Shee, on behalf of the defendant, put forward, or attempted to put forward, the same contentions he has put forward before your Lordships - namely, (1.) that the accusation made against the plaintiff in the words which have been described as the sting of the libel amounted in effect to this, and only to this, that the plaintiff "was a quack of the rankest species by reason of his connection with the Drouet Institute, and by reason of his having resorted to and adopted the quack methods of that notorious establishment"; and (2.) that the libel so interpreted was true in substance and in fact, or if not was a fair comment. I do not for a moment suggest that the meaning thus put upon the libel by the defendant is its true meaning, but I think it would be impossible successfully to contend that it is not reasonably susceptible of that construction, or, to use the words of Lord Esher in Merivale v. Carson (1), that "it could not be thought by any reasonable man to have that meaning." If that be so, as I think it is, it was the light of the defendant to have it in some form of words distinctly left to the jury to say whether the meaning so put upon the libel by the defendant was, in fact, the meaning it conveyed to the mind of the ordinary reader. This, however, was not done. No such question was ever left to the jury. The contention was practically ruled out; and the reason why it was not left to them is apparently this, that the libel, read in the sense contended for by the

(1) (1887) 20 Q. B. D. 279.

defendant, does not necessarily impute to the plaintiff want of skill or professional incompetence at all, whereas it would appear to me that the learned Chief Justice was of opinion that the words "he is a quack of the rankest species" necessarily conveyed an imputation of want of skill or incompetence, and that his instruction to the jury on the point amounted to a direction to that effect. He treated the question of the plaintiffs "being a fully qualified man able to deal with the treatment" of the diseases treated in the Drouet Institute as being put beyond all controversy by his possession of the degree of M.D. of Paris, and nearly at the end of his summing up used the following words: "It seems to me that the first question you have to consider is, Has the defendant established before you that this man was a quack of the rankest description? That is the sting of the libel. I am not going over it again. I have told you what that means, and you will consider it from that point of view. If the defendant has not established it, then, of course, the plaintiff is entitled to your verdict. Upon the other part of the case, if you think the system of the Drouet Institute, which Dr. Dakhyl is now carrying on, is a system which no competent medical man ought to be a party to, then you would not think so much of him." But the only portion of his summing up in which he had purported to tell the jury what those words meant was the passage first quoted by the Master of the Rolls, in which he stated that they meant not only "an incompetent person but a person who puffs his own incompetence before the public," a person, "who pretends to medical skill he does not possess." With all respect to the learned Chief Justice, I think he was in error in the course he took. I think that in effect he took upon himself to determine the question which it was the province of the jury to in fact determine, namely, the meaning which the libel in fact convoyed to the mind of an ordinary reader - the sense in which the words complained of were to be understood by that reader. Upon the question of fair comment, with equal respect to the learned Chief Justice, I think he also fell into error. It is only necessary in order to shew that to quote two passages from his summing up dealing with this subject. They respectively run as follows: "(1.) You were told yesterday, and you were told again this morning by Mr. Shee, that the real question here was, was this fair comment, and that if it is fair comment, the fact that the defendant has used strong or exaggerated language, if honestly used, would not prevent it from being fair comment. Upon one part of the case that is a perfectly just observation, namely, upon that part of the case which involves the question of the kind of practice that the plaintiff has carried on; but I am bound to tell you that that has nothing to do with the personal attack upon the plaintiff as a man in his profession. If you find that the defendant has libelled the plaintiff in his profession as a medical man, the fact that the defendant wanted to comment upon a system which he did not approve of would be no justification at all. (2.) Therefore, in so far as this paragraph, if it be a paragraph which is otherwise libellous, relates to the system carried on by the Drouet Institute, of which the plaintiff was the physician, and to criticizing that system because it was a system purporting to advise people without seeing them, in so far as that is a matter for consideration what Mr. Shee told you about fair comment would be (and I tell you so)

absolutely right, and you ought not to condemn a man because he has used strong language about it. The other branch of the case is the attack upon the individual, and, as has been laid down by many judges of far greater experience and ability than anything I can ever hope to attain to, fair comment is not to be made the opportunity of personal attack. Therefore the first question you have to consider is, Aye or No, is there any personal attack on the plaintiff in his profession as a medical man? If there is not, the personal element goes out of the case, and you may then consider a great deal of what has been said to you as to the criticism upon the system, but if besides the system which is supposed to be attacked and criticized there is personal comment, then you have to consider whether it is true." The statement of the law contained in these passages is, I think, enforced in other portions of the summing up. I cannot find that it is in substance qualified in any. It is, in my opinion, altogether too wide. A personal attack may form part of a fair comment upon given facts truly stated if it be warranted by those facts - in other words, in my view, if it be a reasonable inference from those facts. Whether the personal attack in any given case can reasonably be inferred from the truly stated facts upon which it purports to be a comment is a matter of law for the determination of the judge before whom the case is tried, but if he should rule that this inference is capable of being reasonably drawn, it is for the jury to determine whether in that particular case it ought to be drawn. The well-known passage from the judgment of Crompton J. in Campbell v. Spottiswoode (1), relied upon so strongly by Sir Edward Clarke, was not confined to literary criticism, but applied "to writers on any public matter," and distinctly laid down the principle that if base and sordid motives which are "not warranted by the facts" be imputed, the fact that the writer bona fide believed his imputation to be well founded affords no defence. Joynt v. Cycle Trade Publishing Co. (2) is to the same effect. In this case the established facts might not warrant the personal charge made against the plaintiff of being "a quack of the rankest species," if that charge necessarily implied "incompetence or want of skill" on his part, but if, on the other hand, the libel bears the meaning contended for by the defendant - and, as I have already said, I think it is reasonably susceptible of that meaning - then the question whether the imputation was a fair comment in that it was warranted by the established facts was quite another matter, and should have been left to the jury to determine. The assumption on which the learned Chief Justice appears to have proceeded, namely, that incompetence or want of skill was necessarily imputed to the plaintiff, shaped and coloured his whole summing up. It led him to instruct the jury upon the law in a manner which amounted to misdirection, and prevented him from taking the opinion of the jury on the issue raised by the defendant as to the meaning of the libel. It was, I think, an erroneous assumption, and the fact that it was acted upon necessitates that there should be a new trial, however hard it may be on the plaintiff to be burdened with the cost of a second investigation. There can be no more just and wholesome rule of practice, in my opinion, than that laid down by

(1) (1863) 3 B. & S. 769, at p. 778.

(2) [1904] 2 K. B. 292.

Lord Halsbury in McDoughall v. Knight (1) as to raising new questions on appeal, but this case does not come within it. The questions raised here are not new. They were, in my view, raised below, and practically ruled upon by the Lord Chief Justice in the course of the case.

Solicitors for the appellant: Collyer-Bristow & Co.

Solicitors for the respondent: Lewis & Lewis.

G. A. S.

(1) (1889) 14 App. Cas. 194.