[IN THE HOUSE OF LORDS.]

AND

Defamation - Libel - Privileged Occasion - Excess of Privilege.

Upon a plea that a libel was published on a privileged occasion it is for the judge to determine whether the occasion is privileged and whether the privilege has been exceeded.

Where a libel contains defamatory matter not referable to the duty or interest which gives rise to the privileged occasion, such matter is outside the occasion and is not protected; and such excess of privilege in part of a defamatory publication may also be evidence of malice as to the whole of it. Excessive language in regard to a matter within the privileged occasion is material only as evidence of malice, and, semble, in determining whether such language is evidence of malice, it will not be subjected to strict scrutiny.

A public official who, acting under the direction of his principals, signs and publishes a libel takes the benefit of the privilege of his principals and is liable for their malice; and, semble, evidence of malice on his part is irrelevant.

The plaintiff, who was formerly an officer in a cavalry regiment and was subsequently elected a member of Parliament, in a speech in the House of Commons, falsely charged the General commanding the brigade of which his late regiment formed part with sending confidential reports to Headquarters on officers under his command, containing wilful and deliberate misstatements. The General having referred the matter to the Army Council, the defendant, as secretary to the Council and by their direction, wrote a letter to the General, vindicating him against the charge made by the plaintiff and containing defamatory statements about the plaintiff, and sent it to the Press for publication. The letter was widely published in the British and Colonial Press. In an action for libel by the plaintiff against the defendant, the defendant pleaded that the letter was published on a privileged occasion:-

Held: (1.) That the occasion was privileged and that there was no evidence of malice on the part of either the Council or the defendant; (2.) that, having regard to the circumstances under which the plaintiff's charge was made, the publication of the libel was not unreasonably wide; (3.) (Earl Loreburn doubting

but not dissenting) that in the special circumstances of the case the defamatory statements were strictly relevant to the vindication of the General, and that the whole of the letter was protected.

Decision of the Court of Appeal affirmed.

APPEAL from an order of the Court of Appeal (Buckley L.J., Pickford L.J., and Bankes L.J.) reversing a judgment of Darling J. in an action for libel brought by the appellant against the respondent, in respect of a letter, dated August 5, 1910, written by the respondent, as secretary to the Army Council and by their direction, and issued by him to the Press by order of the Council. The sole defence relied on by the respondent was that the letter was published on a privileged occasion.

The following statement is taken from the judgment of the Lord Chancellor:-

"The facts, so far as they are material, lie in very short compass.

"Major Adam, the plaintiff and appellant, was an officer in the 5th Lancers, in 1906, stationed at Aldershot. The commanding officer of his regiment was Colonel Graham, who in the autumn of 1906 made a confidential report with regard to Major Adam. This report was submitted to Major-General Scobell, and was by him transmitted, together with notes of his own upon it, to General Sir John French, who was General Officer Commanding-in-Chief at Aldershot. This report, with the notes upon it, is in the evidence called the 'combined report.' It was not shown to Major Adam before being sent in, as it ought to have been by the King's Regulations, but it was shown to him some weeks later - about December 6, 1906. On November 3, 1906, Sir John French sent in a confidential report of his own with regard to Major Adam. Neither of these reports was produced at the trial, as the Secretary of State stated that it was contrary to the public interest that they should be put in evidence.

"A letter dated December 1, 1906, was sent from the Army Council to Sir John French, stating, with reference to a letter of his of November 3, reporting the unsuitability of Major Adam as a cavalry leader in the field, that after full consideration of the circumstances of the case it had been decided that he should be called upon to forward an application to retire from the Service, failing which it

would be necessary to submit for His Majesty's approval his removal from the Army, and that Sir John French was requested to communicate this decision to Major Adam. Major Adam wrote begging for a reconsideration of this decision, or, failing that, for the longest possible grace before sending in his papers, in order that he might get something to do, and in the result, owing to the good offices of Major-General Scobell, Major Adam was given a post in the office of the Chief of the General Staff. He remained at this post until January, 1910. On October 18, 1907, it was announced that he and four other officers were to be placed on half-pay, and on November 30 of the same year a communiquŽ appeared stating that this action was not due to any cause detrimental to the character of these officers, and that, though they were not considered suitable to retain their positions as officers in the 5th Lancers, their services could be, and in three cases were being, utilized in other appointments, and that the regiment was not inefficient to take the field.

"In October, 1909, Major Adam asked that the circumstances under which he was placed on half-pay should be reconsidered with a view to his reinstatement on full pay, but he was informed by a letter of November 3 that his case had been carefully considered and that the Army Council saw no reason to reopen the question.

"In January, 1910, Major Adam was returned as member of the House of Commons for Woolwich, and vacated his staff appointment.

"On June 27, 1910, he made a speech in the House of Commons in which he referred to the case of Captain Bryce-Wilson, one of the five officers who had been placed on half-pay, and read out in the House the following statement: 'That Major-General H. J. Scobell, Royal Irish Lancers, did render to superior authority a confidential report or confidential reports on an officer or officers under his command, which report or reports contained wilful and deliberate misstatements of fact, thereby deceiving those in authority to whom the report or reports were rendered, and causing injustice to be done to one of the regiments under his command.'

"Major Adam then went on to say, according to the report in 'Hansard,' which was in evidence: 'Major-General Scobell is on his way home at the present time from South Africa. He arrives in England at the end of this week, and I hope when he sees the report

of this in the paper, as I intend he shall do, he will appreciate the meaning of the words, "wilful and deliberate misstatement of facts." I have tried to make it clear, and I hope he will turn up that paragraph in the King's Regulations which compels an officer in a case like this to refer the matter to his superior authority, the superior authority in this case being the Army Council. I hope sincerely that the Army Council will see that justice is done to Captain Wilson and that penalties are meted out to those officers who deserve it.'"

In reference to this speech the Lord Chancellor said: "This speech must have conveyed to every one who heard it or read the report the impression that Major-General Scobell was charged with conduct unworthy of an officer and a gentleman within the meaning of the King's Regulations. It is impossible to suppose that Major Adam did not intend to convey this impression. At the trial, however, he stated that he did not impute such unworthy conduct to Major-General Scobell, and that he said what he did merely in order that Major-General Scobell might demand an inquiry to clear himself, in the course of which Major Adam believed information might be obtained with regard to the attack upon him which he believed to be contained in the combined report.

"I abstain from comment upon Major Adam's conduct in making, for such an indirect purpose, an unfounded attack upon General Scobell, who had rendered Major Adam great service at the time of his removal."

His Lordship then continued: "Major-General Scobell brought the matter before the Army Council, who, after investigating it, issued through the Press the letter which is complained of as a libel upon Major Adam, and which forms the subject of this action. It was addressed to Major-General Scobell, and is as follows:-

"In reply to your letter of July 8th, 1910, asking that an enquiry should be instituted in regard to a statement made by Major W. A. Adam, M.P., in the House of Commons on June 27th to the effect that while in the command of the 1st Cavalry Brigade you rendered confidential reports on certain officers which reports contained wilful and deliberate misstatements of facts, I am commanded by the Army Council to inform you that a thorough investigation has been made of the reports made by you at that time on certain officers of the 5th Lancers, who were afterwards removed from the regiment,

and to whom it is believed that Major Adam's statement bore reference. Major Adam is himself one of these officers. The Council also thought it proper to address a letter to Major Adam on the 23rd ultimo, inquiring whether he desired to forward for their consideration any statement in amplification or substantiation of his charge against you. On the 29th idem a reply was received from Major Adam to the effect that he had written to the Secretary of State for War on the subject, but his letter of the same date to the Secretary of State is found to contain nothing pertinent to the present investigation. The Council are satisfied that not only did your reports contain the unbiassed and conscientious opinion you had formed on the officers in question, but that the conclusions at which you arrived were correct, as they were afterwards borne out not only by the opinion of your successor in command of the 1st Cavalry Brigade, but also by a special report on the 5th Lancers made by H.R.H. the then Inspector-General of the Forces, and confirmed by the General Officer then Commanding-in-Chief the Aldershot Command. Further, as showing the absence of hostile bias, the Army Council note that in the case of Major Adam, who in 1906 was called upon to retire from the service in consequence of adverse reports, which were duly communicated to him, you intervened on his behalf and urged the Council to give him another chance in an extra regimental appointment. In the result it was decided to give Major Adam this chance. I am to add that the Council are of opinion that the charge brought against you by Major Adam is without foundation.'

"The action was brought on November 14, 1912, against Sir E. Ward, by whom, as secretary to the Army Council, the letter complained of had been signed and issued to the Press in obedience to the orders of the Army Council. The defendant did not dispute that the letter was defamatory of the plaintiff but pleaded privilege.

"The case was tried before Darling J. and a special jury. Four questions were left by the learned judge to the jury. These questions, with the answers of the jury, are as follows:-

"1. Was the publication a matter of a public nature? - A.: No.

"2. Was the publication made by the defendant in discharge of his duty as secretary to the Army Council and for the purpose of affording information to the public? - Answer to both branches

of this question: Yes. 3. Was the subject-matter of such publication by the defendant matter about which it was proper for the public to know? - A.: No. 4. Was the matter contained in the letter appropriate for the public to know? - A.: No. And the jury assessed the damages at 2000l.

"Application being made for judgment, the learned judge said: 'On these findings I hold that the publication was not a privileged publication, nor a publication on a privileged occasion, and therefore I shall enter judgment for the plaintiff.'

"The defendant appealed to the Court of Appeal, which held that the occasion was privileged, and that there was no evidence of malice, and directed judgment to be entered for defendant. The plaintiff, Major Adam, appealed from this judgment to your Lordships' House and asked that judgment should be entered for him, or, alternatively, that the case should be sent down for a new trial."

Feb. 19, 20, 22, 23, 26. Sir Hugh Fraser, for the appellant. The libel is admitted, and the sole defence is privilege. The document complained of is a travesty of the facts, and it contains serious charges against the appellant. The plea of privilege fails on two grounds: first, because the publication was unnecessarily wide; secondly, because the defamatory statements in the letter went beyond the requirements of the occasion. As to 1: The letter was an answer to a charge made by the appellant against Major-General Scobell in Parliament, and the reply to the charge should have been made through the same channel. There was no necessity to publish the letter broadcast in the British and Colonial Press, and the publication of the letter to so large a number of persons renders it unprivileged altogether. There is no duty to publish to the world at large untrue defamatory statements unless they are protected by statute or are contained in a report of parliamentary or judicial proceedings, or proceedings in the nature of a judicial inquiry: Purcell v. Sowler (1); Brown v. Croome(2); Lay v. Lawson. (3) The investigation in this case was an inquiry with closed doors and was not in the nature of a judicial proceeding. As to 2: The real question is whether the statements complained of

(1) (1877) 2 C. P. D. 215.

(2) (1817) 2 Stark. 297, 301.

(3) (1836) 4 Ad. & E. 795.

were made in the discharge of a legal or moral duty and were reasonably necessary to the discharge of that duty. The law as to what constitutes a privileged occasion is laid down in the recent case of London Association for Protection of Trade v. Greenlands, Ld. (1), where this House approved the well-known definition of Parke B. in Toogood v. Spyring. (2) There was no duty here to say anything beyond what was necessary for the vindication of Major-General Scobell. The Council, and the respondent as their agent, have gone outside what the law allowed. The defamatory statements concerning the appellant were not relevant to the purpose of the letter. They are therefore in excess of the privilege and not entitled to protection: Hebditch v. MacIlwaine (3); Duncombe v. Daniell(4); Warren v. Warren (5); Senior v. Medland.(6) At any rate, the excess is some evidence of malice: Cooke v. Wildes. (7) [He also referred to Laughton v. Bishop of Sodor and Man (8), Nevill v. Fine Arts and General Insurance Co. (9), and Capital and Counties Bank v. Henty & Sons. (10)] There is no privilege for libels published in defence of other people except where there is a special relationship, such as agent and principal or solicitor and client. This libel was not published in self-defence, and no special relationship existed between the Army Council and General Scobell.

Assuming that the occasion was privileged, there was evidence of express malice to go to the jury, and upon this point Darling J. was wrong. The respondent stands in the same position as his principals the Army Council. It is no answer to an action for libel against a public official to say that he did merely what he was told by his principals to do. It is not suggested that the Council or the respondent were actuated by personal spite against the appellant, but they published a document containing statements which they knew to be false. [Upon this point he referred to Smith v. Streatfeild. (11)]

At the conclusion of the arguments for the appellant:

(1) [1916] 2 A. C. 15, 22, 33-35.

(2) (1834) 1 C. M. & R. 181, 193.

(3) [1894] 2 Q. B. 54.

(4) (1837) 8 C. & P. 222.

(5) (1834) 1 C. M. & R. 250.

(6) (1858) 4 Jur. (N.S.) 1039.

(7) (1855) 5 E. & B. 328, 340.

(8) (1872) L. R. 4 P. C. 495.

(9) [1895] 2 Q. B. 156; [1897] A. C. 68.

(10) (1882) 7 App. Cas. 741, 787.

(11) [1913] 3 K. B. 764.

The LORD CHANCELLOR intimated that their Lordships desired to hear the respondent's counsel only upon the question whether the statements concerning the appellant were germane to the vindication of General Scobell.

Sir John Simon, K.C. (Sir Frederick Smith, A.-G., and G. A. H. Branson with him), for respondent. Some confusion has arisen from the frequent use in the authorities of the term "privileged communication," which can only mean a document published on a privileged occasion where express malice is not proved. But the question whether the occasion is privileged is for the judge, and the question of express malice, assuming that there is evidence, whether extrinsic or intrinsic, on the point to be submitted to the jury, is for the jury: Pullman v. Hill & Co. (1); Boxsius v. Goblet Fr�res(2); Edmondson v. Birch & Co. (3); Huntley v. Ward(4); Simmonds v. Dunne. (5)

A case might conceivably arise in which a document contained two subject-matters, both containing defamatory statements, so wholly divorced from one another that the judge might rule that the occasion was privileged as regards one subject-matter but not as regards the other, but the point has never arisen for decision, although it has been mooted in several cases: Warren v. Warren (6); Jacob v. Lawrence (7); Nevill v. Fine Arts and General Insurance Co. (8) In such a case the fact that part of the communication was wholly irrelevant to the duty or interest which gave rise to the privilege would not destroy the privilege in regard to the whole communication, although it might afford strong evidence of malice. But any excess of language within the ambit of the subject-matter is material only in so far as it is or may be evidence of express malice. Such excess does not import malice and is not necessarily evidence of malice; to constitute such evidence the excess must be substantial: Laughton v. Bishop of Sodor and Man (9); Nevill v. Fine Arts and General Insurance Co. (10); Spill v.

(1) [1891] 1 Q. B. 524, 529.

(2) [1894] 1 Q. B. 842.

(3) [1907] 1 K. B. 371.

(4) (1859) 6 C. B. (N.S.) 514.

(5) (1871) Ir. R. 5 C. L. 358, 362.

(6) 1 C. M. & R. 250.

(7) (1879) 4 L. R. Ir. 579, 584.

(8) [1895] 2 Q. B. 156, 170.

(9) L. R. 4 P. C. 495, 508.

(10) [1895] 2 Q. B. 156, 170, 172.

Maule. (1) Applying these principles to the facts, it is material to observe that not merely did the appellant vilify General Scobell, but he was really championing his own cause, and was not acting, as he professed to be, in the public interest as a disinterested commentator. He made an attack upon General Scobell's honour, and in the reply it was relevant to show that General Scobell, so far from being actuated by malicious motives, was doing what he could to assist the appellant. All the statements complained of were strictly relevant to the vindication of General Scobell.

Sir Hugh Fraser in reply. It is for the judge, in determining whether the occasion is privileged, to satisfy himself that the particular communication is reasonably necessary for the discharge of the duty which gives rise to the occasion: Henwood v. Harrison. (2) In Fryer v. Kinnersley (3) the Court, in considering whether the privilege applied, took into account the evidence of the language used. "It is not enough to have an interest or a duty in making a communication; the interest or duty must be shown to exist in making the communication complained of": Lynam v. Gowing (4), per Dowse B. When it is said that there is some excess in the communication that is an ambiguous term. It may mean either that there is in the communication a statement which is not reasonably necessary for the discharge of the duty, or that the language used in a statement which is referable to the duty is stronger than is reasonably necessary. In the former case the statement is outside the privileged occasion altogether and there is no question of malice to go to the jury; in the latter case it is for the jury to consider the language as evidence of malice: Wright v. Woodgate. (5) The defamatory statements in this case fall under the former category. Here the duty of the Council was not to attack the appellant but to vindicate General Scobell, and, having regard to the fact that the so-called investigation resolved itself into a consideration of confidential reports behind closed doors, it was specially incumbent on the Council not to go a step beyond what was necessary for General

(1) (1869) L. R. 4 Ex. 232, 235.

(2) (1872) L. R. 7 C. P. 606, 628.

(3) (1863) 15 C. B. (N.S.) 422.

(4) (1880) 6 L. R. Ir. 259, 268.

(5) (1835) 2 C. M. & R. 573.

Scobell's vindication. [He also referred to Ede v. Scott (1) and O'Hea v. Cork Union. (2)]

The House took time for consideration.

March 22. LORD FINLAY L.C. My Lords, this is an action for libel, and the questions that arise in this appeal are whether the occasion was privileged, and, if so, whether there was evidence of express malice. [His Lordship stated the facts and continued:] The law of privilege is well settled.

Malice is a necessary element in an action for libel, but from the mere publication of defamatory matter malice is implied, unless the publication was on what is called a privileged occasion. If the communication was made in pursuance of a duty or on a matter in which there was a common interest on the party making and the party receiving it, the occasion is said to be privileged. This privilege is only qualified and may be rebutted by proof of express malice. It is for the judge, and the judge alone, to determine as a matter of law whether the occasion is privileged, unless the circumstances attending it are in dispute, in which case the facts necessary to raise the question of law should be found by the jury. It is further for the judge to decide whether there is any evidence of express malice fit to be left to the jury - that is, whether there is any evidence on which a reasonable man could find malice. Such malice may be inferred either from the terms of the communication itself, as if the language be unnecessarily strong, or from any facts which show that the defendant in publishing the libel was actuated by spite or some indirect motive. The privilege extends only to a communication upon the subject with respect to which privilege exists, and it does not extend to a communication upon any other extraneous matter which the defendant may have made at the same time. The introduction of such extraneous matter may afford evidence of malice which will take away protection on the subject to which privilege attaches, and the communication on the extraneous matter is not made upon a privileged occasion at all, inasmuch as the existence of privilege on one matter gives no protection to irrelevant libels introduced into the same communication.

(1) (1858) 7 Ir. C. L. R. 607.

(2) (1892) 32 L. R. Ir. 629.

That the occasion of this letter was privileged seems to me to be clear beyond all controversy. Major Adam had made a violent attack upon the character of Major-General Scobell, who appealed to the Army Council for inquiry. It was the duty of the Army Council to inquire into the truth of this charge and to make the result of that inquiry known as widely as possible. It is said that there was unnecessary publicity given to their findings, but it must be remembered that Major Adam's speech in the House of Commons had been extensively reported, as he obviously intended it should be when he made his attack upon Major-General Scobell, and the Army Council did no more than their duty in giving a wide publicity to their finding that the charge was unfounded.

It has been said that their observations as to the plaintiff, Major Adam, were not relevant to their vindication of Major-General Scobell, and that privilege does not extend to this portion of the letter. These observations appear to me to be directly relevant. The plaintiff did not mention in his speech in the House of Commons that he was himself interested in the matter, and any one who heard or read his speech would have been left under the impression that he was a perfectly disinterested person who had taken up the case of a brother officer. The vindication by the Army Council of Major-General Scobell would have been incomplete if the true relation of Major Adam to these proceedings had been left out. The two passages especially impugned were, first, the statement that the plaintiff was one of the officers who had been removed from the regiment, and, second, the following sentences: "Further, as showing the absence of hostile bias, the Army Council note that in the case of Major Adam, who in 1906 was called upon to retire from the Service in consequence of adverse reports which were duly communicated to him, you intervened on his behalf and urged the Council to give him another chance in an extra regimental appointment. In the result it was decided to give Major Adam another chance."

So far from being alien to the investigation of the charge made by the plaintiff against Major-General Scobell both these passages appear to me to be directly relevant to it. It was essential to show that Major-General Scobell had been actuated by a friendly feeling towards the plaintiff, and it was as incidental to this that the

fact that the plaintiff had been called on to retire should be introduced.

The privilege extended to the whole letter, and there is nothing either in the letter itself or in the surrounding circumstances to supply any evidence of express malice.

I agree with the Court of Appeal in thinking that the judge ought to have ruled that the occasion was privileged.

The learned judge ruled that there was no evidence of malice against the defendant personally, as he had acted for the Army Council and under their orders. The question was really not one of personal malice on the part of the defendant. He was the agent and servant of the Army Council, and must stand or fall with them. If the letter was published on a privileged occasion as regards the Army Council and without malice on their part, their secretary, through whom the communication was made by them, has the benefit of the privilege which attached to the Council itself. If, on the other hand, the occasion had not been privileged, or there was express malice, their secretary would be liable, although he personally had no ill-will towards the plaintiff.

In my opinion this appeal should be dismissed with costs.

EARL LOREBURN. My Lords, Sir Hugh Fraser has put all that could possibly be urged on behalf of the appellant with a fairness which added to the weight of his argument. But he has failed to show that there is any evidence of malice either in the defendant or in the Army Council. The document charged as a libel admittedly contains matter which admits of a defamatory sense, and the defendant's counsel did not dispute that it in fact had a defamatory meaning. Accordingly that issue was not left to the jury. There is no plea of justification, and therefore the one remaining question is that raised by the plea of privilege.

I understand the law to be as follows: It is for the judge alone to rule whether or not there is an occasion of privilege, and the rule on that subject was laid down many years ago in the case of Toogood v. Spyring. (1) Subsequent decisions have illustrated that rule. But the fact that an occasion is privileged does not necessarily protect all that is said or written on that occasion. Anything that

(1) 1 C. M. & R. 181.

is not relevant and pertinent to the discharge of the duty or the exercise of the right or the safeguarding of the interest which creates the privilege will not be protected. To say that foreign matter will not be protected is another way of saying the same thing. The facts of different cases vary infinitely, and I do not think the principle can be put more definitely than by saying that the judge has to consider the nature of the duty or right or interest and to rule whether or not the defendant has published something beyond what was germane and reasonably appropriate to the occasion, or has given to it a publicity incommensurate to the occasion. For a man ought not to be protected if he publishes what is in fact untrue of some one else when there is no occasion for his doing so, or when there is no occasion for his publishing it to the persons to whom he in fact publishes it. All this is for the judge alone, and the question of malice, which is for the jury, cannot arise till the judge has ruled on the whole question of privilege.

Language has been used in some cases which seems somewhat to confuse the two separate points, namely, whether the defendant has gone beyond the privilege which the occasion creates, and whether the defendant has forfeited the privilege by malice. Excess of privilege in part of a defamatory publication may of course be evidence of malice as to the whole of it, but the two things are different. The one is a matter for the judge, the other is matter for the jury. And observations made by judges in directing juries as to what is evidence of malice are not necessarily applicable when they have to rule as to excess of privilege. But I agree that in ruling upon that subject a judge may well think that a man is justified in inculpating his accuser in order more effectively to exculpate himself, and also may well think that the defendant has not exceeded the privilege when he has expressed himself with some warmth under real provocation, though no one can be justified in using such an occasion beyond the reasonable limits of self-defence.

I will only add that when one part of a libel is held to be protected by privilege and the other part not protected the jury ought to be told that they cannot give damages in respect of the first part at all, unless they are satisfied that it was malicious, which may be proved by the character of the unprotected part or by other evidence.

Applying this view of the law to the present case, I am quite

sure that the attack made on General Scobell by the appellant in the House of Commons not only permitted but required the Army Council to vindicate the conduct of that officer, and that both that Council and the defendant, who acted by their direction, were in the fullest sense within the privilege recognized by the law when they published to the country at large a defence of General Scobell. I have had more doubt upon the question whether or not all that is contained in the letter which forms the subject of this action was covered by the privilege, and am disposed to take on that point the same view of the facts that appears from his summing-up to have been taken by Darling J.

But in view of the speech of the appellant made in the House of Commons, where he used an absolute privilege to attack another officer who had done him no wrong, but on the contrary had befriended him, I could not possibly approve of the heavy damages awarded by the jury. I shall not dissent from the view of your Lordships.

LORD DUNEDIN. My Lords, the pleadings and evidence in this case are voluminous and the issue of importance to those concerned. Yet, notwithstanding the elaborate and painstaking address of the counsel for the appellant, which absolved your Lordships from sharing the regret ha expressed at the absence of his leader, I cannot say that I have any doubt or hesitation in thinking that the judgment of the Court of Appeal was right. The reasons given for that judgment by Lord Wrenbury, then Buckley L.J., are entirely satisfactory to my mind. I only venture to add some remarks of my own, because some of the leading principles of the law of libel and privilege have been freely discussed, and this case will take rank in the future as an authoritative pronouncement on these matters. I do not propose to enter in detail into the facts of the case, as that has already been done by the Lord Chancellor, and I shall only mention those which are necessary to make intelligible the conclusions at which I have arrived.

The primary fact in the case is the speech made by the plaintiff in the House of Commons on June 27, 1910, and in particular the paragraph he read from a typewritten sheet in order, as he said, "that there may be no mistake and that I may not be led away by rhetorical

exaggeration." I need not quote it, as that has already been done. To my mind these words could, to the audience which heard them or to the ordinary man who read them in "Hansard" or in a newspaper report, only convey one meaning, namely, that General Scobell had inserted, with deliberate purpose, false statements of fact in a report or reports as to officers under his command and had thereby deceived those in authority, with the consequence that a certain regiment had been unjustly treated. It is true that on a critical analysis of the words "rendered" and "containing" it is possible to make the sentence fit with the idea that the false statements in the report were not of General Scobell's own fabrication, but were merely forwarded by him. But neither is that the natural meaning of the words nor is it what the plaintiff intended should be understood by them, for he admits in cross-examination that he phrased the passage as he did in order to compel General Scobell to take up the matter under the King's Regulations; and the only part of the King's Regulations which imposes such a duty is the paragraph which compels an officer whose "character or conduct as an officer or a gentleman has been impugned" to ask for an inquiry. He seeks to excuse himself by saying that the inquiry, if held, would have shown that the real culprit as to the false statements was Colonel Graham and not General Scobell.

That the words used contained an imputation on General Scobell's honour no one can doubt. Under the King's Regulations, already referred to, the General could not deal with the matter himself, but was bound to do what he did - bring the matter before the Army Council and ask them to inquire as to the truth of the accusation made against him.

On this it appears to me clear that there arose on the part of the Army Council a duty, not only moral, but actually legal under military law, to make the inquiry demanded. In what particular way or form the inquiry should be held was, I think, a matter for them and for no one else to determine. The Army Council proceeded to institute an inquiry, but before doing so they called on the plaintiff to furnish them with any statement he might wish to make "in amplification or substantiation" of the charge that he had made. To this the plaintiff replied that as the inquiry was to be conducted by themselves, and as the Army Council "had forfeited the

confidence of the Army and the public," he did not propose to do anything more.

The Army Council accordingly held the inquiry within, so to speak, their own walls. They came to the conclusion that the charge made was unfounded. They wrote a letter to General Scobell telling him so, and they published that letter.

Now, if the matter is thus baldly stated, can it for a moment be supposed that this publication is not a performance of a moral if not even of a legal duty and as such privileged? Let us look at the situation. General Scobell is grossly attacked in a speech in the House of Commons - a speech which in that place, from motives of high public policy, is protected by absolute privilege. Under the King's Regulations he may not take up the matter himself and defend himself in the public Press. He is bound to refer the matter to the Army Council and await their verdict. The verdict is in his favour. What would that avail him unless there was a right in the Army Council to publish the result at which they had arrived? If it were not so, then the absolute privilege of the House of Commons, intended to safeguard the liberty of discussion, would be really turned into an abominable instrument of oppression.

Two replies are, however, made to this, which I shall take in their order. It is said, first, that the publication here was to an unduly wide public, that there was no duty to publish to every one, but only to those who were likely to have become aware of the accusation, and that to make such a wide publication as was here made was in accordance with no duty or right. My Lords, I think that a man who makes a statement on the floor of the House of Commons makes it to the world. True it never reaches every person in the world. In some cases, if the orator is unknown to fame and the statement intrinsically unexciting, it may not reach very many. But no one knows whom it may reach, and it was only, I think, plain justice to General Scobell that the ambit of the contradiction should be spread so wide as if possible to meet the false accusation wherever it went. Do what you will, the stern chase after a lie that has got the start is apt to be a long one. As a matter of fact the Army Council instructed their secretary, the defendant, to send the communication to the channels to which they ordinarily send all official communications. The list is a long one and the ambit of

influence is wide; but in my judgment the list was not longer or the ambit wider than was demanded by justice to General Scobell.

The second reply raises what is, I think, the real and only point in the case. I have hitherto dealt with the communication as if it was a bald statement of the unfoundedness of the charge against General Scobell. But the letter was a long one, and it is urged that, in so far as it went beyond the mere statement of General Scobell's innocence and proceeds to say things defamatory of the plaintiff, it was not in the exercise of any duty or right, and that for these statements there is no privilege.

My Lords, in discussing this question a controversy was raised at the Bar as to what is the accurate way of expressing the legal doctrine. It has to be kept in view that the learned counsel for the defendant did not put forward the contention that the language used was not defamatory of the plaintiff. At first sight this is rather startling in view of the expressions used and in the light of the facts of the case. I should have thought that what may be called the moral effect of this attitude on the jury would be rather disastrous. I do not doubt that the words used - upon which I shall comment shortly - were such that the judge could not, if asked, have removed them entirely from the cognizance of the jury by ruling that they were incapable of a defamatory interpretation. But they were equally capable of an innocent interpretation and an interpretation which squared with the underlying facts of the case. Now it is one thing, so far as moral effect is concerned, to say "I meant what I wrote innocently, and I contend that is the true meaning of the words used" - even although it may eventually be decided against you that the true interpretation is otherwise, and it is another thing to say from the first "I cannot deny that the words I used were defamatory." That words intended innocently may yet be held to be defamatory is quite certain. No better illustration can be given than the case of Hulton & Co. v. Jones. (1) In that case, in which there was difference of opinion between the learned judges, and where certainly the high-water mark of the doctrine was reached, but which, as a decision of your Lordships' House, is certainly the law, no one for a moment supposed that the writer of the article was using words which he thought were defamatory of the plaintiff, Artemus Jones.

(1) [1910] A. C. 20.

He did not even know of his existence. Yet none the less the words were held to be defamatory because they could be read by the ordinary reader as so applying. Notwithstanding, however, that the admission thus made is startling, I have come to the conclusion that it makes no difference to the matter in hand. In other words, the admission of the defendant through his counsel that the words used were in themselves defamatory puts the case in precisely the same position as if the judge had left the true meaning of the words to the jury - as I think he would, if there had been no admission, have been bound to do - and the jury had found that they were defamatory.

What now is the situation? You have a communication issued on a privileged occasion; and in gremio of that communication are used words which are in themselves defamatory. What test is to be applied? On the one hand, it is said that, the occasion being privileged, the whole document is privileged, but that if in the document you find parts which are not really necessary to the fulfilment of the particular duty or right which is the foundation of the privilege on the occasion, then these parts may be used as evidence of express malice. In other words, it stands thus: Malice, which is of the essence of libel, is presumed from defamatory words. Privilege destroys that presumption. But the place of the implied malice which is gone may be taken by express malice which may be proved. It may be proved either extrinsically or intrinsically of the document, and such words in the document are apt as evidence. Thus Buckley L.J. states as to the whole matter: "There are two questions. The first whether the occasion was a privileged occasion, and if it was, then, secondly, whether there was any evidence of malice."

On the other hand, it is said that it is not necessarily a question of malice at all; that privilege applies to what is written and published in response to a duty or right; and that if anything is found in the thing published which is not reasonably appropriate to that duty or right, then privilege cannot extend to that. My Lords, I think it will be found that in most cases these are merely two ways of expressing the same point. But there is this to be said in favour of the former method, that it is a formula which as a test will fit most if not all cases, whereas the second would necessarily break

down in a good many. For it could always be said with apparent force that it never can be necessary to incorporate in a statement made in response to a duty or right any defamatory statement which is not logically necessary to fulfil that duty or right. Thus cases like Spill v. Maule (1) ("most disgraceful and dishonest") and Laughton v. Bishop of Sodor and Man (2) ("bring false witness against a neighbour") would, if tried by this latter test alone, be held to be wrongly decided, though as a matter of fact I do not think it is suggested that they were anything but right, and in my opinion they were right, as, indeed, becomes evident if they are tried by the first test.

My Lords, I have not said that the first test is universally applicable and for this reason: If the defamatory statement is quite unconnected with and irrelevant to the main statement which is ex hypothesi privileged, then I think it is more accurate to say that the privilege does not extend thereto than to say, though the result may be the same, that the defamatory statement is evidence of malice. But when the defamatory statement is, so to speak, part and parcel of the privileged statement and relevant to the discussion, then I think the first way is the true way to put it, and under it will also range all the cases where the express malice is arguable from the too great severity or redundancy of the expressions used in the privileged document itself. In short, I adopt the law as laid down by Lord Esher M.R. in the case of Nevill v. Fine Arts and General Insurance Co. (3) The learned judge there says: ".... in this case there was no evidence of such malice. That being so, the defendants have proved that the occasion was privileged, and there was no evidence of malice in the mind of anybody to rebut that privilege, and the defence stands good. But then the jury were asked to find, and have found, that the privilege was exceeded. There may be an excess of the privilege in the sense that something has been published which is not within the privileged occasion at all, because it can have no reference to it. Instances have been put during the argument of cases where a defendant on an occasion which is privileged as between himself and some other person makes some defamatory statement affecting a third person which has nothing to do with the

(1) L. R. 4 Ex. 232.

(2) L. R. 4 P. C. 495.

(3) [1895] 2 Q. B. 156, 170.

privileged occasion, in which case, of course, that third person would have a right of action against the defendant, and, as between him and the defendant, there would be no privileged occasion." (A good illustration of this will be found in the case of Warren v. Warren. (1)) "But when there is only an excessive statement having reference to the privileged occasion, and which, therefore, comes within it, then the only way in which the excess is material is as being evidence of malice."

This question is of necessity closely connected with the question of the respective functions of the judge and of the jury. I do not think it necessary to analyse the very numerous decided cases which were cited to us in the course of the argument. I have studied them all, and what I am about to say is, I believe, the true doctrine to be drawn from them. But it may be as well to make this remark, that certainly some confusion has resulted from the use of the convenient phrases "privileged statement" and "extension of the privilege." Strictly speaking, it is the occasion on which a statement is made that is privileged, and the phrase that such and such a statement is privileged would be more accurately, though perhaps, more clumsily, expressed by saying that, the statement having been made on a privileged occasion, malice cannot be implied from defamatory expressions therein, but must be proved as a real fact. The malice to be proved must be real malice, and is generally called "express malice" to distinguish it from the malice which is implied from the defamatory words themselves. The duty of deciding whether the occasion is privileged is cast upon the judge alone, and the jury has no hand in it. The criterion as to whether the occasion is privileged or not is most tersely stated in the well-known passages of Parke B.'s judgment in Toogood v. Spyring (2): ".... fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned" and again: "If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." And the judge must put the question suggested by that definition to himself.

(1) 1 C. M. & R. 250.

(2) 1 C. M. & R. 181, 193.

If the statement is, so to speak, divisible into parts it may be that the judge may come to the conclusion that certain parts are not truly referable to the particular right or duty which in the case in hand is the foundation of the privilege. If so, he will so find - that is to say, he will find that paragraph 1 is referable and appropriate to a privileged occasion, paragraph 2 is not so. Then if paragraph 2 contains defamatory words, malice will be implied as to them. If, however, he finds that both paragraphs are referable and appropriate to the privileged occasion, then, as it is more commonly but less accurately expressed, he finds that the privilege extends to the whole statement. In that case the next question he has to put to himself is whether the defamatory words complained of are capable of affording, from their own nature alone, evidence of express malice. If he holds them incapable, and there is no other evidence extrinsic of the document, then the plaintiff's case is gone and the jury has not to be called upon at all. But if the judge thinks that the words are so capable, then he must leave it to the jury to say whether from the words alone, or in conjunction with extrinsic evidence, if there be any such, express malice has been proved. It might thus occur, though the case will probably be rare, that, as above imagined, defamatory words in the non-privileged paragraph 2 could afford evidence of express malice in connection with the expressions used in the privileged paragraph 1.

I need scarcely add, but it makes the statement complete to do so, that, if there is controversy as to whether the words used are defamatory or not, it is for the judge to determine whether they are capable of a defamatory meaning, and, that being resolved in the affirmative, it is for the jury to find whether they are actually defamatory or not.

My Lords, I now return to the facts of this case, and here I am of opinion, concurring with the Lord Chancellor, that the present case is a case where the defamatory statement was part and parcel of the privileged statement and relevant to it. A grave charge had been made against General Scobell, but it had been made in the guise of calling attention to the grievance of brother officers - particularly one officer - of the plaintiff. It was relevant to show that in so doing the plaintiff was really airing his own grievance, "Mutato nomine de te Fabula narratur," and I think that the Army Council

were entitled to say so. In doing so, they used the expression relative to the plaintiff of "removed from the regiment," an expression which in the innocent sense was true and not defamatory, for the plaintiff had been removed from his regiment by being sent to Headquarters and subsequently put on half-pay. It is true that it must be taken as settled that the expression must be regarded in a defamatory sense. But, though that is so, it is well settled that express malice cannot be held as proved from the mere fact of the expression being defamatory: Spill v. Maule (1) and Laughton v. Bishop of Sodor and Man. (2) And, further, when considering whether the actual expression used can be held as evidence of express malice no nice scales should be used. I would particularly cite the words of the judgment of the Privy Council of the latter case (3): "Some expressions here used undoubtedly go beyond what was necessary for self-defence, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, that protection which the law throws over privileged communications." This disposes of the first passage pointed out as defamatory.

Then comes the only other passage relied on where the letter says that the plaintiff had been called upon to retire "in consequence of adverse reports which were duly communicated to him." But this is only said as a preface to pointing out that General Scobell, whom he had accused of deliberately making false statements, in virtue of which injustice had been done to regimental officers of whom he was one, had, so far from being actuated by hostile bias against him, been the very man to intercede at Headquarters for the plaintiff, with the result of persuading the authorities to give him another appointment. Indeed, when we come to the language, it is, in my opinion, strictly accurate, and the admission as to defamatory language in general terms cannot be held to apply to it. For he was called on to retire, as witness the War Office letter of December 1, 1906. The reason given for the request was a report by General

(1) L. R. 4 Ex. 232.

(2) L. R. 4 P. C. 495.

(3) L. R. 4 P. C. 508.

French. And that that report was communicated to the plaintiff, notwithstanding the plaintiff's denial in the box, is, I think, proved (a) by the evidence of General French; (b) by the expression used in the plaintiff's letter of March 25, 1911, in which he speaks of "the communication of the General Officer Commanding-in-Chief at Aldershot which I held in my hand, and requested him to apply for the (Colonel Graham's) report to be sent to me to read"; and (c) by the fact that in his letter of December 9, 1906, referring to the War Office letter of December 1, he begs for reconsideration of the decision announced in that letter and makes no complaint of the non-communication of the report therein mentioned. But even if this were not so the same argument would prevail, as I have already stated in regard to the expression "removed from the regiment."

I am accordingly of opinion that privilege attaches to the statement here complained of; that no malice can be implied; and that to succeed the plaintiff must prove express malice. As to express malice, all the learned judges, including the trial judge, are agreed that there is absolutely no evidence, either extrinsic or intrinsic, of malice on the part of the defendant, Sir Edward Ward. For my own part I fail to see how, if it was once shown that Sir Edward Ward was merely obeying orders when he signed the statement drawn up by the Army Council and sent it for publication, and was relying, as he was entitled to do, on the privilege which attached to the action of his superior and principal, the Army Council, any evidence as to malice on his part could be relevant. It is not necessary, however, to decide that question. It is only necessary to add that there is not a shred of evidence of malice on the part of the Army Council. Their malice, in my view, would be relevant. But as it does not exist it is unnecessary to consider that question either.

My Lords, there are two other matters which, although not affecting the judgment to be pronounced, ought, in my opinion, to be mentioned. The learned judge who tried the cause took what I believe is a very unusual course in two particulars. He disposed of the question of malice while the question of privilege was still unsettled. I do not know if this can be said to be wrong, but at least it is highly inconvenient. The second matter is more serious. In order to dispose of the question of privilege he put to the jury

certain questions, of which three were as follows: Was the publication - that is, the document published - of a public nature? Was the subject-matter of that publication by defendant matter about which it was proper for the public to know? Was the matter contained in the letter proper for the public to know? To all of which the jury returned a negative answer, and upon that the learned judge said: "Upon these findings I hold that the publication was not a privileged publication nor a publication on a privileged occasion." It is clear that so far as the questions go they assume that the foundation of the duty or right which was invoked to support the privilege was that the matter discussed was one of public importance: whereas the true foundation in this case was the duty of the Army Council to make publicly known their vindication of General Scobell's honour. But apart from that, and in view of what I have already stated as to the provinces of judge and jury, I entirely agree with the learned judges of the Court of Appeal, who held that these questions were for the judge and not for the jury. If there is some fact left in controversy which must necessarily be determined one way or the other, to allow the judge to view the complete situation and thus enable him to decide whether the occasion was privileged or not, it would be right for the judge to ask the jury to determine that fact. But to put to them questions such as these and then on the findings to find privilege or the reverse is simply to ask the jury to decide for him the question which it is his duty, and not theirs, to determine.

LORD ATKINSON. My Lords, I concur. The facts have been fully stated already, and I desire to refer to them only so far as is necessary to make what I am about to say intelligible. During the progress of Sir Hugh Fraser's able and candid argument I pressed him several times to indicate what were the precise words in the alleged libel which were reasonably susceptible of a defamatory meaning. In the result his replies amounted as I understood, to this: that the word "removed" and the words "which were duly communicated to him," occurring after the word "reports" contained the sting of the libel. He admitted that if after the word "removed" the words "by being put on half-pay" had been inserted and the words "which were duly communicated to him" had been deleted there

would not have been anything defamatory of the plaintiff in it. Owing to the course taken at the trial, the question of whether the alleged libel as it stands is reasonably capable of a defamatory meaning is not open for the consideration of this House. Neither is it open to it to set aside the verdict on the ground that the damages are excessive. But when it is admitted by the appellant's counsel that the trifling alterations in the alleged libel which I have indicated would have made it innocuous, I think there would be great difficulty in holding that, having regard to all the facts of the case, there is any reasonable proportion between the wrong alleged to have been done, and the damages awarded in respect of it. The truth is, I think, that at the trial the investigation was allowed to wander off into all sorts of irrelevant matters. The case proceeded, and the damages were awarded, as if the cause of action was not the alleged libel, but the unjust treatment the plaintiff was alleged to have received at the hands of the military authorities years before the libel was published. The learned judge who tried the case might possibly have ruled, on the question of law, whether or not the occasion on which the alleged libel was published was a privileged occasion but for the answers he had received from the jury in reply to questions as to certain things the existence of which went to make the occasion of the publication privileged. He did not leave the question of privilege or no privilege to the jury, but he did leave to the jury the question as to the presence or absence of the elements which go to create privilege. For instance, the question "Was the subject-matter of the publication by the defendant matter about which it was proper for the public to know?" And the question "Was the matter contained in the letter proper for the public to know?" It is to be regretted that the remarks of Willes J. in Henwood v. Harrison (1) were not brought to Darling J.'s notice. Willes J., a most learned, laborious, and accurate judge, after stating that since the declaratory Act of 1792 (32 Geo. 3, c. 60) the jury are the proper tribunal in civil as in criminal cases to decide the question of libel or no libel, said: "But it is not competent for the jury to find that, upon a privileged occasion, relevant remarks made bona fide without malice are libellous." He then proceeds: "It would be abolishing the law of privileged discussion, and deserting the duty

(1) L. R. 7 C. P. 606, 628.

of the Court to decide upon this as upon any other question of law, if we were to hand over the decision of privilege or no privilege to the jury. A jury, according to their individual views of religion or policy, might hold the Church, the Army, the Navy, Parliament itself, to be of no national or general importance, or the liberty of the Press to be of less consequence than the feelings of a thin-skinned disputant." It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential. Nor is it disputed that a privileged communication - a phrase often used loosely to describe a privileged occasion, and vice versa - is a communication made upon an occasion which rebuts the prima facie presumption of malice arising from a false and defamatory statement prejudicial to the character of the plaintiff, and puts the latter on proof that there was malice in fact: per Parke B., Wright v. Woodgate. (1) Nor that the question of whether the occasion is a privileged occasion or not is, if the facts be not in dispute, or if in dispute have been found by the jury, a question of law to be decided by the judge at the trial. Nor yet that a person making a communication on a privileged occasion has not, in the first instance and as a condition of immunity, to prove affirmatively that he honestly believed the statement made to be true, his bona fides being in such a case always presumed: Jenoure v. Delmege (2); Clark v. Molyneux.(3) All these matters were not questioned. They could not be questioned successfully. Nor was it suggested that, while on the question of malice the bona fide belief of the defendant that he was under a moral or social duty to make the communication is relevant and important, the existence, in fact, of this duty or interest, not merely the defendant's belief in its existence, is the thing which is relevant to the question whether the occasion was or was not privileged: per Lindley L.J., Stuart v. Bell. (4) It was, however, strenuously contended on the part of the appellant, as I understood, that the language used in a communication made on a privileged occasion must, if it is to be protected,

(1) 2 C. M. & R. 573, 577.

(2) [1891] A. C. 73, 79.

(3) (1877) 3 Q. B. D. 237, 249.

(4) [1891] 2 Q. B. 341, 349.

merely be such as is reasonably necessary to enable the party making it to protect the interest or discharge the duty upon which the qualified privilege is founded. It has long been established by unquestioned and unquestionable authority, I think, that this is not the law. This point is of such importance that one may be excused for referring at length to three authorities to show what the law on the subject really is, and in what light the language used in privileged communications is in a Court of law to be regarded. In Spill v. Maule (1) the libel sued upon was contained in a letter written by the defendant, a creditor of a firm, who had been engaged by the firm to wind up its affairs, to another creditor of the same firm. The plaintiff had had disputes with his partner before and during the winding up, and he, suspecting that his partner was drawing out the money of the firm on his own account, took from the cash-box of the firm a parcel of bills, directing the clerk to take an account of them and to tell his partner to debit his, the plaintiff's, account with them. The defendant dealt with this transaction in the above-mentioned letter, and stated that the plaintiff's conduct in reference to it "has been most disgraceful and dishonest, and the result has been to diminish materially the available assets of the estate." The plaintiff at the trial proved these facts. They constituted his case. Thereupon the presiding judge, Martin B., directed a verdict for the defendant. A bill of exceptions was tendered to this ruling, on the ground that though the communication was privileged, yet the violent and abusive terms used in the letter were evidence of actual malice. The judgment of the Exchequer Chamber was delivered by Cockburn C.J., Keating, Lush, Hannen, Hayes, and Brett JJ. concurring. The case is therefore one of high authority. After stating the facts the Chief Justice said (2): "The question then arises, whether the language is too strong for the occasion; the terms applied to the plaintiff's conduct being 'most disgraceful and dishonest.' Now, the communication being privileged, the presumption is in favour of the absence of malice in the defendant, and in order to rebut this presumption, the plaintiff must show actual malice, and he may no doubt show this by reference to the terms of the libel as being utterly beyond and disproportionate to the facts." He then proceeds

(1) L. R. 4 Ex. 232.

(2) L. R. 4 Ex. 236.

to refer to the plaintiff's act in taking away the bills, and says: "This act was capable of a twofold construction; it might have taken place under such circumstances that the plaintiff could not properly be exposed to any moral censure, as, for instance, if he only intended to keep the assets in security for the benefit of creditors: or the circumstances might have been such that in taking the bills he acted dishonestly and disgracefully. Now, the presumption of the law being in favour of the absence of malice in the defendant, and the only evidence of malice being his description of acts done by the plaintiff, which were capable of a twofold construction, that presumption of innocence which attaches to the writer must also, while his act is capable of a double aspect, still attend him. .... We have not to deal with the question whether the plaintiff did or did not act dishonestly and disgracefully; all we have to examine is whether the defendant stated no more than what he believed, and what he might reasonably believe; if he stated no more than this, he is not liable, and, unless proof to the contrary is produced, we must take it that he did state no more." The direction of Martin B. was accordingly upheld. I cannot find that the authority of this case has ever been questioned. It was cited with approval in the case of Laughton v. Bishop of Sodor and Man (1), to which I am about to refer. It will be observed that the Chief Justice says that the terms of the libel which are evidence of malice are not merely such as are beyond the necessities of the occasion, but such as are utterly beyond and disproportionate to the facts.

The case of Laughton v. Bishop of Sodor and Man (1) has, I think, a direct bearing upon the present case. The appellant Laughton, a barrister, having been retained to oppose at the bar of the House of Keys a bill in which the respondent was interested, in the course of his remarks very severely criticized the respondent and his mode of discharging his duties. The Bishop, in an address which he read to his clergy assembled in convocation, and subsequently had printed and published in a local newspaper, the Manx Sun, did not confine his observations merely to a defence of himself against the charges made against him. He, in addition, violently assailed and denounced his critic, Laughton. He accused him

(1) L. R. 4 P. C. 495.

(p. 498) of making slanderous statements and uncharitable imputations under the apparent sanction of well-informed persons; of making statements with an entire disregard of truth; of being a wicked man; of making calumnious assertions; and of being guilty of the sin of bearing false witness against his neighbour. The Deemster before whom the case was tried ruled that the occasion on which the libel was published was a privileged occasion, but left to the jury the question of actual malice, of which the excessive nature of the Bishop's language he apparently regarded as evidence. The jury found a verdict for the plaintiff for 400l. The Appeal Court of the Isle of Man set aside this verdict, on the ground that there was in the case no such evidence of express malice as justified the Deemster in leaving the question of malice to the jury. This decision was upheld by the Privy Council, on the ground that, having regard to the circumstances and the nature of the attack upon him, the Bishop might have honestly believed that everything he said was true and proper for his own vindication, although in fact some of his expressions exceeded what was necessary for it, and that the language of his charge was more consistent with such an honest belief, and with the purpose of self-vindication, than of injuring the plaintiff, but that had the Bishop referred to the conduct of the plaintiff on any other occasion than that of his addressing the House of Keys, or made any general attack upon his private or professional character, the case would have been different. In delivering the judgment of the Board Sir Robert Collier said (1): "Some expressions here used" (i.e., used by the defendant in his defence) "undoubtedly go beyond what was necessary for self-defence, but it does not, therefore, follow that they afford evidence of malice for a jury. To submit the language of privileged communications to a strict scrutiny, and to hold all excess beyond the absolute exigency of the occasion to be evidence of malice would in effect greatly limit, if not altogether defeat, the protection which the law throws over privileged communications."

That decision has been approved of many times. It was relied upon by Lord Macnaghten when delivering judgment in the case of Jenoure v. Delmege. (2) Its soundness has not, I think, ever been questioned.

(1) L. R. 4 P. C. 508.

(2) [1891] A. C. 73, 76.

In Nevill v. Fine Arts and General Insurance Co. (1) the appellant Lord William Nevill, in the year 1892 became agent to the respondents, and conducted the agency at his own office, 27, Charles Street, St. James's. The appellant, after some months had passed, desired better terms, and a correspondence passed on this subject. In December, 1893, the secretary of the respondents wrote to the appellant informing him that the board of directors of the respondent company had decided to terminate the agreement with him. An alteration of terms was made, and the appellant continued to act as agent for the respondents. In answer to a question as to the appellant's intentions his solicitor wrote on March 13, 1894, that his client wished to sever all connection with the company, owing to the insufficiency of his terms. On March 15, 1894, the secretary of the respondents sent to certain persons who had transacted business with them through the appellant's office a circular stating that the agency of Lord William Nevill at 27, Charles Street had been closed by the directors, and requesting them to direct all communications to the West End secretary at 19, St. James' Street. The innuendo put upon these words was that they meant that the plaintiff had been dismissed by the defendants from his employment as their agent for some reason discreditable to him. Pollock B. tried the case. He stated that he ruled that the occasion which required the writing of some such letter was privileged, that it was contended for the plaintiff that, although the occasion was privileged, that part of the letter which stated falsely that the agency had been closed by the directors was not called for by the requirements of the occasion, and was therefore in excess of the privilege. He accordingly left to the jury the question whether the defendants, in making the statement that the plaintiff's agency was closed by the directors, had exceeded the privileged occasion. The jury, having first found that it was untrue that the directors had closed the agency, answered this question in the affirmative, and found a verdict in favour of the plaintiff for 400l. damages, for which, after consideration, Pollock B. entered judgment. There was no finding of actual malice. On appeal to the Court of Appeal it was decided, the occasion being privileged, that in the absence of a finding of actual malice the defence of privilege was not rebutted,

(1) [1895] 2 Q. B. 156, 159, 160, 171; [1897] A. C. 68, 75.

and that, it appearing on the facts of the case that there was no evidence of actual malice in the publication of the statement complained of, the action was not maintainable. Lord Esher in his judgment deals with the question of this excess of privilege in the words which have been already quoted by my noble friend who has preceded me. Lopes L.J. concurred, and in his judgment relied upon the passage I have already quoted from the judgment in Laughton v. Bishop of Sodor and Man. (1) On appeal to the House of Lords all the noble Lords who took part in the decision were of opinion that the statement that the agency had been closed was true in fact in the only sense relevant to the context in which it was found, and that there was no evidence of malice. They upheld the judgment of the Court of Appeal. And Lord Halsbury, referring to this statement, says: "But suppose it was not true, suppose it was not accurate in the sense in which people would have understood it, .... suppose the persons who wrote that document intended to tell the truth and believed in the truth of what they were writing, even though in the mind of some other person it should be inaccurate in form, it seems to me that it would be impossible to contend that that would be evidence of malice."

These authorities, in my view, clearly establish that a person making a communication on a privileged occasion is not restricted to the use of such language merely as is reasonably necessary to protect the interest or discharge the duty which is the foundation of his privilege; but that, on the contrary, he will be protected, eve though his language should be violent or excessively strong, if, having regard to all the circumstances of the case, he might have honestly and on reasonable grounds believed that what he wrote or said was true and necessary for the purpose of his vindication, though in fact it was nat so. It was next urged on behalf of the appellant that the Army Council should have confined themselves to stating that the charges made against Major-General Scobell were on investigation found to be unfounded, and that he had been fully exonerated, and, therefore, that all the references contained in the libel to the appellant himself, his conduct, career, or the treatment he received, were foreign and irrelevant subjects, not pertinent to the discharge of the duty, or to the protection of the interest which

(1) L. R. 4 P. C. 495, 508.

form the basis of the privilege claimed; but were separable from the relevant parts of the libel, and, to use the words of Lord Esher, were outside the privileged occasion and had nothing to do with it; and that since, to afford a defence, the whole communication should be within the protection of the privileged occasion, if part only were so, the entire communication ceased to be a privileged communication or to be protected. Some question was raised as to whether the presiding judge was the person to decide whether any foreign and irrelevant matter had been introduced into the libel, and whether it was separable. I think it must be the judge who is to do so. He it is who must decide whether the occasion is privileged or not, and if that be so, he must necessarily decide in respect of what portion of the libel the occasion would be privileged if it stood by itself. A more difficult question, however, remains upon which the authorities cited give little, if any, assistance. It is this: What would be the effect of embodying separable foreign and irrelevant defamatory matter in a libel? Would it make the occasion of the publication of the libel no longer privileged to any extent, or would those portions of the libel which would have been within the protection of the privileged occasion, if they had stood alone and constituted the entire libel, still continue to be protected, the irrelevant matter not being privileged at all and furnishing possible evidence that the relevant portion was published with actual malice. In the absence of all guiding authority the latter would, in my opinion, be more consistent with justice and legal principle, and I think it is, in law, the true result. Owing, however, to the view I take of the contents of the libel, this question is, to my mind, a purely academic one. For reasons I shall presently adduce I do not think any foreign or irrelevant matter has been introduced into the libel; but as the point has been raised and fully argued, and is itself of importance, it is, I think, desirable to decide it. I have accordingly expressed my opinion upon it. Some argument was directed to the defendant's precise position in relation to this libel, his rights, duties, and privileges, his feelings towards the appellant, and his express or implied malice. I think his position is plain. He was the mere agent of the Army Council, bound to obey their orders or resign his post - the mere instrument through whose hands the libel passed for publication. His own personal feelings or privileges

are, I think, not involved in the case at all. He had nothing whatever to do with the composition of the libel, or the approval of its contents. In the mere routine of the work of the office he signed his name to it and passed it on for publication in the way and over the area usual in such cases. To suppose that it was his duty to attempt to dissuade his principals from publishing the libel, to criticize their language, or, save at their request, to alter it is, in my view, quite absurd. It is no doubt true that one cannot defend himself for publishing a libel simply by saying that another person whom he was bound to obey ordered him to publish it; but it is equally true that when an agent, in obedience to the command of his principal, merely does the mechanical act of publishing the libel handed to him complete the privilege of the principal becomes, as it were, his privilege, and if the principal has caused the communication to be made to protect the interest or discharge the duty which would have made the occasion privileged if he had published the libel with his own hand, the agent can equally rely on the publication having been made on a privileged occasion. For this purpose he stands, in my view, in the shoes of his principal, has the same rights and the same liabilities. I think this follows from the reasoning of the judgments in London Association for the Protection of Trade v. Greenlands, Ld. (1) The appellant was not ashamed to admit that he published this vile slander of his friend and benefactor, General Scobell, believing that the charges it contained were untrue. He seeks to justify that most discreditable act by saying that he did it to force General Scobell to demand an inquiry, in which he (Scobell) would be exculpated and the real culprit be discovered. But the Army Council were not told of this unworthy stratagem. They, in their ignorance, could hardly have supposed that the appellant would have stooped to it, and have charged Major-General Scobell with the shameful act he did charge him with unless he believed that the General was really guilty. It was therefore quite natural that, in order to disabuse the appellant's mind of the notion that either Scobell or the Army Council had any ill-will towards him or any motive for doing him a wrong, they should recall the acts of kindness done to him by both. The appellant, in the House of Commons, posed, no doubt, as a member who was bringing forward the

(1) [1916] 2 A. C. 15.

grievances of Captain Wilson, not of himself. That was, however, a mere pretence. The War Office knew it was a pretence. It was too transparent to deceive any one who knew the facts. But the public did not know the facts. It was clearly, therefore, justifiable, if not desirable, that the public should be informed of them, and shown that the appellant in traducing his own superior officer was not the disinterested defender of Captain Wilson, but was grinding his own axe and, under an alias, as it were, airing his own grievances, making his own complaint. It was evidently for the purpose of informing the public on this point that the statement was introduced into the alleged libel to the effect that the appellant himself was one of the officers removed from the 5th Lancers in consequence of the alleged false reports. That was obviously pertinent. So was the statement that the appellant had been called upon to substantiate his charges and had failed to do so. Nothing could tend more to show the public that the charges were untrue and that the exculpation of General Scobell was right. Everything in the libel was, I think, pertinent and relevant to the central facts that the appellant had made these charges against General Scobell, had failed to substantiate them, and that they had been investigated by the Army Council and found to be untrue. The appellant was naturally dissatisfied with the mode of investigation adopted. It manifestly did not suit his book. It frustrated his plan. It afforded him no opportunity, by cross-examination of the man he had made a cockshy of for his calumnies, of discovering the supposed wrongdoer. He would have preferred apparently a Court of inquiry. A Court of inquiry is a Court to collect evidence, not, like a court-martial, to pass judgment. The accused apparently did not ask for a Court of inquiry. The Army Council may have considered they had sufficient evidence before them to enable them to decide, and did not need a Court of inquiry to collect further evidence. It can hardly be contended that the traducer has the right to select the tribunal before which the traduced is to defend himself, and that the traducer is aggrieved if that right is denied to him. His complaint on that head may be disregarded. The next point urged on behalf of the appellant was that the publication of the libel was unnecessarily wide; that it extended over too vast an area; that neither the Army Council nor the defendant had any interest or duty to

publish it to people inhabiting the remote parts of the Empire which the libel might reach; that these latter had no corresponding interest or duty in receiving the communication; and that either the occasion of the publication was therefore not a privileged occasion, or that this wide publication was evidence of actual malice. I cannot agree. The area was the usual area over which such matters are published by the Army Council. It must be remembered that every subject of the Crown, whatever portion of our far-flung Empire he may inhabit, has, and must have, an interest in the British Army, its courage, the confidence of its men in their officers, its discipline and efficiency, for this amongst other reasons, that he never can be sure whether the day may not come when the lives of himself and his family, the safety of his property or his liberty may not depend on its success in the field against the Empire's enemies, or the efficiency of its aid of the civil power in suppressing tumult and crime in the locality where he lives. The efficiency and discipline of troops must depend on the character, training, and acquirements of the officers who lead them. It would be a disgrace and injury to the Service if a man, publicly accused of the shameful breach of duty of which General Scobell was accused, was allowed to continue in command of a brigade in the Army unless and until he had been cleared of the accusation made against him. Every subject, therefore, who had an interest in the Army had an interest in being by a public communication informed of General Scobell's acquittal. But I go further. I think it may be laid down as a general proposition that where a man, through the medium of Hansard's reports of the proceedings in Parliament, publishes to the world vile slanders of a civil, naval, or military servant of the Crown in relation to the discharge by that servant of the duties of his office he selects the world as his audience, and that it is the duty of the heads of the service to which the servant belongs, if on investigation they find the imputation against him groundless, to publish his vindication to the same audience to which his traducer has addressed himself. In my view the Army Council would have failed in their duty to General Scobell personally, and to the great Service which they in a certain sense govern and control, if they had not given the widest circulation to the announcement of the General's vindication. I think, therefore, the appellant's contention on this point

cannot be sustained. I am for these reasons clearly of opinion that the occasion on which this alleged libel was published was a privileged occasion, and that there was no evidence of express malice either against the defendant or against the Army Council. I think the appeal fails on every point, that the decision of the Court of Appeal was right and should be upheld, and the appeal be dismissed with costs here and below. I wish to point out that though the combined confidential report was not, according to the appellant, shown to him before it was sent in, as it should have been, and he was thus deprived of an opportunity of defending himself, still, if it did not charge him with any specific act or default which he could have disproved, but, as far as we know, like Lord French's report, only expressed the opinion of his superiors as to his inefficiency as a leader of cavalry in the field, there was really nothing he could defend himself against. That the report was of this character is strongly suggested by the fact that, though he did see it on December 6, 1906, no protest whatever against it is made by him in his letter of December 9, written three days afterwards. That is what one would have expected if the report merely expressed the opinion of his superiors on his inefficiency. It would have been useless to protest against their judgment of his skill as a leader of cavalry; but it is certainly not what one would have expected if the report accused him of any act or omission which he could explain or disprove. During the succeeding four years he in his letters requests that the Army Council should reconsider their decision as to his retirement, and as to his being placed on half-pay, but he never said all this time that the reports against him accused him of any such act or omission as he could disprove or explain. I share the regret of my colleagues that we have not had these reports before us, but I can well understand that the War Office were unwilling to make a precedent by their production.

LORD SHAW OF DUNFERMLINE. My Lords, I concur.

I should have been well content to adopt, as I respectfully do, the judgment of Lord Wrenbury in the Court of Appeal. But the arguments submitted at the Bar by the learned counsel for the appellant with such care and fulness have convinced me that the course of the procedure in this case was such as to cause both

embarrassment and mischance; and I am glad, accordingly, that your Lordships have thought that the occasion demanded some fresh enunciation of the principles of the law of libel, which principles do not appear to have been followed in the trial of the action.

In view of the judgments which have preceded my own, I do not require to allude in great detail to the facts.

In the House of Commons on June 27, 1910, the appellant made the following statement: "That Major-General H. J. Scobell, 5th Royal Irish Lancers, did render to superior authority a confidential report or confidential reports on an officer or officers under his command, which report or reports contained wilful and deliberate misstatements of fact, thereby deceiving those in authority to whom the report or reports were rendered, and causing injustice to be done to one of the regiments under his command."

He explained that he was making this charge deliberately, and read it from type. He added: "Major-General Scobell is on his way home at the present moment from South Africa; he arrives in England at the end of this week, and I hope, when he sees the report of this in the paper, as I intend he shall do, he will appreciate the meaning of the words, 'wilful and deliberate misstatements of facts.' I have tried to make it clear, and I hope he will turn up that paragraph in the King's Regulations which compels an officer in a case like this to refer the matter to his superior authority, the superior authority in this case being the Army Council. I hope sincerely that the Army Council will see that justice is done to Captain Wilson, and that penalties are meted out to those officers who deserve it."

The meaning of this was only too plain. It was a charge made against Major-General Scobell of a gravely injurious and, unless true, of a deeply calumnious character. The charge was not made against him recklessly, but deliberately; and it was made under circumstances than which none can be more public or command wider attention throughout the Empire, namely, in the House of Commons. It was made under the shelter of the absolute privilege which covers proceedings in Parliament, and it was directed against a man whose mouth was closed by the King's Regulations applicable to the Army. It was acutely pointed at his honour by the reference to that regulation which compels an officer to refer the matter to the

Army Council. So serious was the charge against Major-General Scobell's character and conduct as an officer and a gentleman that he became obliged to submit the case under paragraph 446, a paragraph which prescribes that pending the investigation an officer in such a case may be suspended from duty, "in which case he will be placed under the same restrictions as an officer under open arrest."

Major-General Scobell acted. On his return to this country he requested "that the Army Council may cause inquiry to be made regarding the charge brought against me by Major Adam of having made a 'deliberate misstatement' as I consider that my honour is impugned by such a statement." The appellant was asked by the Army Council whether he wished to forward any statement in amplification or substantiation of his charge. He then indicated that it was something else he was after, namely, investigation into the administration of the War Office as well as into Major-General Scobell's conduct; and he did not comply with a most fair and reasonable request.

On investigation the charge was found to be baseless. The result was a complete acquittal of Major-General Scobell. In February, 1912, that gallant officer died. After his death, namely, in November, 1912, this action was brought.

Before adverting to the terms of the alleged libel I desire to refer to the situation of the War Office created by the demand for and the result of their investigation. It humbly appears to me that the right of the War Office in such a case is, first, to investigate and to condemn or acquit; and, secondly, in the case of an acquittal to publish that fact; while thirdly, on the head of publication, it has the right, and may properly consider it its duty, in justice to an officer who has been publicly wronged, to use its utmost endeavour to undo the wrong whithersoever that wrong may have penetrated.

With regard to the acquittal no complaint is now made. It is not maintained by the appellant that the charge was true; but he regrettably offers no apology for it, but a reason. That reason is of a sinister character - the charge was made against the honour of one officer as a means of forcing a public inquiry in the course of which blame might have been brought home to another.

But with regard to the second and third of these things, namely, the publication of the acquittal and its publication most widely,

the appellant challenges these transactions. I do not think that this challenge is well founded. In my view these things fall not only within the right, but, as I say, within the duty of the War Office. It may be said in general terms that whenever the character of one person is made the subject of a false charge communicated to another in a public manner, that other has the right to overtake the charge wherever it may have reached, and if possible to eradicate the falsehood by the refutation. In the case of an employer generously anxious to undo a wrong to a falsely accused servant the exercise of this right appeals to the former as a duty; and in the case of a public department dealing with the character and conduct of servants of the King the right is no less a duty to the aggrieved officers than also to the public at large. I desire in the next place on this head of the case to express my opinion that it will be only in the most exceptional cases that it will be considered a breach or excess of duty (at present I do not figure for myself any possible case) for the public department or other recipient of the public slander to have published too widely its refutation.

Much time and expense were needlessly caused, in my opinion, in this case on this latter head. What the War Office did was to send the notice of the acquittal to, inter alia, Reuter's and to the Press Association, and so to every newspaper of importance which would care to publish it. In my opinion, in doing so it was within its rights. To recognize that it erred in this particular would be to sanction calculations as to how far the fact of an acquittal of an officer of a charge against his honour should be made public - which calculations upon the part of the War Office would have been shabbily scrupulous. Furthermore, it has to be borne in mind, with regard to the whole question of the repudiation of a false charge, that it has not to be weighed in nice scales. This is so in regard to the language employed, a subject to which I shall presently advert. But it is particularly so with regard to the width of the area selected for the refutation of a wrong which has been done.

It is now necessary to point attention to the subject-matter of both charge and refutation. In his letter of November 12, 1912, the appellant treated the matter as "of the most vital public interest as affecting the pure administration of our Army." I am of opinion that this view is right. The subject-matter was an attack upon the

honour of a soldier of the Crown. In my view this gives just occasion for investigation, and the War Office would be acting with scant justice if, having acquitted the officer, it kept the cleansing of his honour a secret and left the refutation without the widest and most effective publication. I am accordingly humbly of opinion that the occasion of publishing the deliverance of the War Office alleged to be libellous in this case was a privileged occasion, and that the scale and range of the publication of that deliverance were not only within the privilege, but were in themselves proper.

The terms of the published communication by the War Office which is alleged to be libellous have been cited by your Lordships. It took the form of a letter to Major-General Scobell announcing the result of the investigation made.

Privileged, however, as the occasion might be, it was contended that the communication went beyond the occasion and so was not protected by the privilege. I humbly think that this is a more correct way of stating the proposition than that usually adopted. Privilege is a term which is applied in two senses. There is a privileged occasion, and there is also said to be a privileged communication. The former expression is correct; the latter, strictly viewed, tends to error. What is meant with regard to a privileged communication is that it was protected as being within the scope of the privilege attaching to the occasion. The occasion is privileged, the communication is protected.

If, accordingly, and in so far as the communication deals with matter not in any reasonable sense germane to the subject-matter of the occasion, the protection is gone: the occasion with its privilege does not reach a communication upon this foreign and totally unconnected matter. Further, the introduction of such matter into a communication otherwise protected by the occasion may sometimes (this is conceivable) have a bearing upon the issue of whether the other and protected matter was published with express malice.

To apply these observations to the present case: It is admitted that the main and manifest object of the letter is to deal with the charge made against Major-General Scobell. But it is said that in acquitting the accused the department should not have dealt with the accuser. Upon the facts it is conceded that the truth was that Major-General Scobell had befriended Major Adam at a critical

period in the latter's career (when he had been called upon to retire from the Service), had interceded for him, and had prevailed upon the authorities to give him a chance in an extra-regimental appointment. The communiquŽ stated this "as showing the absence of hostile bias." I think it proved that; and in my humble opinion the communication in doing this did not enter upon any foreign field. What it stated was germane: indeed I go so far as to say that I think it would have been scant justice merely to say that the accuser's charge was disproved and to withhold what they knew, namely, that instead of the accused having ill-treated the accuser he had been emphatically his friend.

Having reached this stage, the case, I humbly think, becomes, or should have become, a very ordinary one both in principle and in procedure. The occasion was clearly privileged - the communication dealt with matter germane to the occasion and was protected. Everything else was familiar ground, namely, that in such circumstances the inference that might otherwise have arisen from a statement prejudicial to the plaintiff is rebutted, and it is put upon him (the plaintiff) to establish affirmatively - in the words of Parke B. - that there was "malice in fact - that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made": Wright v. Woodgate. (1) The leading place in authority is still held by Toogood v. Spyring. (2) The most valuable judgment of Willes J. in Henwood v. Harrison (3) gathers the decisions together, including, especially, Toogood (2), and Harrison v. Bush (4) and Whiteley v. Adams(5), and sums them up in these terms: "The principle upon which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals."

In actions for defamation it is the province and duty of the judge to settle the question of privilege, and that without reference of it, or of what goes to establish it, to the jury. The entire mass of

(1) 2 C. M. & R. 573, 577.

(2) 1 C. M. & R. 181.

(3) L. R. 7 C. P. 606, 622.

(4) (1855) 5 E. & B. 344.

(5) (1863) 15 C. B. (N.S.) 392.

authority is, in my opinion, in support of this view; and it is the view adopted in every-day practice. It is not the province or duty of the jury to adjudicate upon or to settle the question of privilege. To use the language of Willes J. (Henwood v. Harrison (1)), "It would be abolishing the law of privileged discussion, and deserting the duty of the Court to decide upon this as upon any other question of law, if we were to hand over the decision of privilege or no privilege to the jury." How far this rule was departed from in this case will be presently seen.

As has been indicated, I am of opinion that this case is one in which privilege should have been affirmed by the judge and the jury directed accordingly to proceed to what was the one and only remaining question - a question of fact within their province, namely, whether express malice on the part of the defendant had been affirmatively established by the plaintiff.

It might have well been considered that there was nothing in the communique to which a libellous meaning could by any reasonable person be attached. This was not the course adopted by the learned counsel for the respondent: they not only admitted that there was matter which was open to a libellous construction, but they, as I read the proceedings, also admitted that the matter was in fact libellous. I fear that this caused much confusion: if it referred to the expressions "removed from the regiment" when the plaintiff was put upon half-pay, it put briefly what the plaintiff himself spoke to when, being asked the effect of putting an officer on half-pay, he said, "It takes him off the regimental list," and what the defendant said, in answer to the Court, namely, an officer "put on half-pay is no longer an officer in the regiment." The admission made appears accordingly to run counter to the facts; and confusion might have ensued from a verdict of malice in such circumstances.

Fortunately this situation was saved by the learned judge, who closed the whole matter by ruling "that there is no evidence of malice - not only no evidence of malice in the publication, but no evidence of malice on the part of the defendant in the publication of this document which would make it necessary for me to leave the case to the jury, if the occasion of its publication were a privileged occasion."

(1) L. R. 7 C. P. 606, 628.

With this ruling it was not open to the jury to find malice as a fact, and, again quite properly, there is no such finding. The case, however, went on for days after this intimation; the inquiry ranged very wide, so wide that I feel convinced that the jury may very well have come to the conclusion that the case they were trying was a case not of libel but truly of wrongful dismissal; and I do not for myself see how the verdict obtained in such circumstances could have stood. It is certainly unusual to find a verdict of a jury taken not upon the fact "was there malice," not even upon elements which lead up to that as a fact, but upon the question of privilege and the elements which might be supposed to bear upon that question of law. I am humbly of opinion that the whole of that procedure was contrary to law.

What happened was that the learned judge asked from the jury answers to certain questions, and the jury found (1.) that the document was not of a public nature, (2.) that the defendant made the publication in the discharge of his duty as secretary to the Army Council, (3.) and for the purpose of affording information to the public, but that (4.) it was not proper for the public to know the subject-matter of the publication. They gave a verdict for 2000l. damages.

It is not necessary to consider whether these findings are supported by evidence. For it is clear beyond all question that the whole of them are in the region of the case relating to the purely and exclusively legal question of privilege. I respectfully agree with the submission made at the trial by the learned counsel for the respondent that "there is no issue of fact proper to be submitted to a jury in order to determine the privileged occasion."

The learned judge did not accede. On the contrary, he relied in determining the question of privilege on the jury's findings, his language being: "On these findings I hold that the publication was not a privileged publication nor a publication on a privileged occasion."

For the reasons already given I am of opinion that this procedure was erroneous. The respective provinces of judge and jury were confounded. I think the verdict so obtained cannot stand, and this quite apart from the large admission of irrelevant and misleading matter to which I have adverted.

But, further - being of opinion that the occasion was privileged, that the communication did not go beyond it, and that no malice was proved in making it - it humbly appears to me that judgment should be entered for the defendant, and that the course taken by the Court of Appeal was correct.

Solicitors for appellant: J. D. Langton & Passmore.

Solicitor for respondent: The Treasury Solicitor.