[HOUSE OF LORDS.]

AND

ET E CONTRA.

Defamation - Libel - Justification - Fair Comment - Distinction between Allegations of Fact and Expressions of Opinion - Misdirection - New Trial.

The plea in an action for libel that in so far as the words complained of consist of allegations of fact they are true in substance and in fact and in so far as they consist of expressions of opinion they are fair comments made in good faith and without malice on a matter of public interest is not a plea partly of justification and partly of fair comment, but is a plea of fair comment only.

Dictum of Collins M.R. in Digby v. Financial News [1907] 1 K. B. 502, 507 followed.

The plaintiff, who had published several books in favour of the artificial prevention of conception and had established a mothers' clinic for constructive birth control in a poor district in London, brought an action of libel against the author and publishers of a controversial work designed to expose the dangers alleged to be involved in artificial birth control. The passage complained of stated, in effect, that the plaintiff was taking advantage of the ignorance of the poor to subject them to experiments, and that at the plaintiff's clinic working women were instructed in a mode of contraception stated by an eminent professor of gyn¾cology

to be the most harmful of which she had experience, and described the campaign carried on by the plaintiff as monstrous and as a more serious crime than that for which Charles Bradlaugh was condemned to jail. The defendants pleaded justification and fair comment. The Lord Chief Justice, in summing up, did not expressly tell the jury that the plea of justification covered the whole of the alleged libel, whether fact or opinion, and invited them to deal under the category of fair comment with expressions of opinion. The jury found that the words complained of were true in substance and in fact, but that they were not fair comment, and awarded the plaintiff 100l. damages. On these findings the Lord Chief Justice entered judgment for the defendants, but this judgment was reversed on appeal:

Held (Lord Wrenbury dissenting on both points), (1.) that judgment should be entered for the defendants; by Viscount Cave L.C., Viscount Finlay, Lord Shaw of Dunfermline and Lord Carson, on the ground that there was no evidence to support the finding that the comments were unfair; and by Lord Shaw of Dunfermline and Lord Carson, on the further ground that the finding of the jury on the plea of justification afforded a complete answer to the action; (2.) that a new trial ought not to be granted on the ground of misdirection, as no substantial miscarriage had been occasioned by the misdirection, if any.

Decision of the Court of Appeal reversed.

APPEAL from an order of the Court of Appeal, whereby it was ordered that a judgment entered for the appellants, the defendants, at the trial of an action for libel before the Lord Chief Justice of England and a special jury should be reversed and judgment entered for the respondent (the plaintiff) for 100l., with a special direction as to costs.

The following statement of facts is taken from the opinion of Viscount Cave L.C.:-

The plaintiff, Mrs. Marie Stopes, who is a Doctor of Science and a Doctor of Philosophy of the University of Munich, but has no medical qualification, has for some time been engaged in a campaign in favour of a practice which is known as "birth control," but which is more accurately described as the prevention of conception by artificial means, and in connection with this campaign has published certain books and has established a mothers' clinic for constructive birth control in a poor district in Holloway. The defendant H. G. Sutherland is a Bachelor of Medicine and of Surgery and a Doctor of Medicine of the University of Edinburgh, and is the author of a book called Birth Control: A Statement of Christian Doctrine against the Neo-Malthusians, which was published

by the other defendants, Harding and More, Ld., in March, 1922. This book, which is a controversial work designed to expose the dangers, social, medical and moral, which the author considers to be involved in the artificial prevention of conception, contains in its seventh chapter (headed "Evils of Artificial Control"), and in a section headed "Specially hurtful to the Poor," the following paragraph, which is admitted to refer to the plaintiff: "Secondly the ordinary decent instincts of the poor are against these practices, and, indeed, they have used them less than any other class. But, owing to their poverty, lack of learning and helplessness, the poor are the natural victims of those who seek to make experiments on their fellows. In the midst of a London sl um, a woman who is a doctor of German Philosophy (Munich) has opened a birth control clinic where working women are instructed in a method of contraception described by Professor McIlroy as 'the most harmful method of which I have had experience' (Proceedings of the Medico-Legal Society, 7th July, 1921). When we remember that millions are being spent by the Ministry of Health and by local authorities - on pure milk for necessitous expectant and nursing mothers, on maternity clinics to guard the health of mothers before and after childbirth, for the provision of skilled midwives, and on infant welfare centres - all for the single purpose of bringing healthy children into our midst, it is truly amazing that this monstrous campaign of birth control should be tolerated by the Home Secretary. Charles Bradlaugh was condemned to jail for a less serious crime."

In consequence of the publication of the above paragraph the plaintiff brought this action against the defendants, claiming damages for libel and an injunction. The defendant Sutherland in his defence pleaded (1.) that the words complained of in their natural meaning were true in substance and in fact; (2.) that the words in their natural meaning were fair and bona fide comment made and published without malice on a matter of public interest; and (3.) as an alternative plea, that in so far as the words complained of consisted of allegations of fact they were true in substance and in fact and

in so far as they consisted of expressions of opinion they were fair comments made in good faith and without malice upon matters of public interest. The defendants Harding and More put in a defence which was somewhat different in form, but which for practical purposes has been treated as being to the same effect as the defence of the defendant Sutherland. Particulars having been given and issue joined, the action went for trial.

The action was tried by the Lord Chief Justice with a special jury; and after a hearing which lasted for five days the learned judge put to the jury a series of questions which, with the answers given by the jury, were as follows:-

"(1.) Question. Were the words complained of defamatory of the plaintiff? Answer. Yes.

"(2.) Question. Were they true in substance and in fact? Answer. Yes.

"(3.) Question. Were they fair comment? Answer. No.

"(4.) Question. Damages, if any? Answer. £100."

On the following day the Lord Chief Justice, after hearing arguments as to the meaning and effect of these findings, gave judgment for the defendants; and as the reasons which he gave for taking that course throw light upon the course of the case, it is desirable to quote them in full: "In this case," he said, "the jury, after a protracted deliberation extending to something like four hours, have found by their verdict that the words complained of in this action, while they were defamatory of the plaintiff, were true in substance and in fact. In the course which the case took that really became the main issue. On the one hand, nobody denied the sincerity, the ability or the honesty of purpose of the plaintiff. On the other hand, there was no real evidence of ill-will on the part of the defendants. Mr. Charles, at the conclusion of the case for the plaintiff, submitted to me that there was no evidence of malice and invited me in effect to say that upon the defence of fair comment it was not necessary to submit any question to the jury. My own mind inclined in that direction, but upon the whole I thought it was more satisfactory, inasmuch as I thought the matter ought to be wholly before the jury, to

leave that question also to the jury, and I decided not to withdraw it. So it came about that at the conclusion of the matter there were two questions put to the jury: one of them upon the plea of justification, and the other upon the plea of fair comment. I have always understood that (in the words which have been quoted) it is a good defence to an action for libel that the words complained of are true in substance and in fact; and although no doubt suggestions were made and arguments were employed upon the one side and upon the other as to whether a particular element in the words complained of was fact or opinion, it was clearly put to the jury, I think - at least, it was put as clearly as I could put it myself - that it was for them to decide whether particular statements which had been the subject of observation on the part of learned counsel were fairly to be regarded as statements of fact or expressions of opinion. I pointed out to the jury again and again that the meaning of those words was a question entirely for them. After that direction they have found that the words complained of were true in substance and in fact. It does not appear to be possible to depart from the ordinary rule."

The plaintiff having appealed against this judgment to the Court of Appeal, that Court did not disturb the verdict, but by a majority (Bankes and Scrutton L.JJ., Younger L.J. dissenting) allowed the appeal and directed judgment to be entered for the plaintiff for 100l. and half the costs of the action. The decision of the majority of the Court was based on the view that the learned judge had invited the jury to distinguish between allegations of fact contained in the alleged libel and expressions of opinion, and to deal with the former under the plea of justification and with the latter under the plea of fair comment; and that, as under the latter head the finding of the jury was in favour of the plaintiff, she was entitled to judgment for the damages assessed by the jury and for a proportion of the costs. Hence the present appeal.

1924. Oct. 23, 24, 27. Serjeant Sullivan K.C. (of the Irish and also of the English Bar) and Theobald Mathew (with them

Rabagliati and Harold Murphy) for the appellants. This action was fought throughout the trial on the plea of justification, and having regard to the facts before the jury their second finding that the words complained of were true in substance and in fact covered all the ground. If the substantive charge contained in the passage complained of as a libel is found to be true, the description of the plaintiff's campaign as monstrous and as a more serious crime than that for which Bradlaugh was condemned to jail carries the matter no further. There is therefore no room for finding 3. The test is whether these words of invective or reproach contain any ground of imputation substantially distinct in its nature and character from that which forms the main charge or gist of the libel. As much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it that need not be justified: Edwards v. Bell (1); Morrison v. Harmer (2); Clarke v. Taylor (3); Cooper v. Lawson. (4) The verdict amounts to this: "If on our findings we have to give the plaintiff anything we give her 100l." The plea of justification involves the justification of every injurious imputation which a jury may think is to be found in the alleged libel, and if that plea is established the plea of fair comment does not arise: Digby v. Financial News (5); Dakhyl v. Labouchere (6); Hunt v. Star Newspaper Co. (7) No case before this has arisen in which it has been held or even suggested that justification was not a complete answer to a civil action for libel. But even if something is excepted out of the proof of justification in this case, still this is not a comment of such a nature in view of the facts as to be outside the bounds of fairness and honesty McQuire v. Western Morning News Co. (8) As to the pleading; the defendants' alternative plea, commonly known as the rolled up plea, was added to complete the defence. It is a perfectly proper plea and means what it says. [On

(1) (1824) 1 Bing. 403, 409.

(2) (1837) 3 Bing. N. C. 759, 767.

(3) (1836) 2 Bing. N. C. 654.

(4) (1838) 8 Ad. & E. 746, 751, 753.

(5) [1907] 1 K. B. 502, 507, 509.

(6) [1908] 2 K. B. 325n., 327.

(7) [1908] 2 K. B. 309, 317, 319, 323.

(8) [1903] 2 K. B. 100, 109.

this point counsel referred to Plymouth Mutual Co-operative and Industrial Society v. Traders' Publishing Association (1); Digby v. Financial News (2); Dakhyl v. Labouchere (3); Hunt v. Star Newspaper Co. (4)]

Sir Hugh Fraser (with him Herbert Metcalfe) for the respondent. The rolled up plea was invented in 1890: Penrhyn v. Licensed Victuallers' Mirror. (5) It is embarrassing and improper and there is nothing to justify it. It is nothing more than the plea of fair comment, which requires that the allegations of fact must be true in order to substantiate it. This was the opinion of Collins M.R. in Digby v. Financial News (6), and that opinion has been followed in Peter Walker & Son v. Hodgson (7), Lyons v. Financial News (8), and Maisel v. Financial Times (9): see also Aga Khan v. Times Publishing Co. (10) The old plea of justification included everything, and there is no ground for departing from the old system of pleading. Upon the merits, having regard to the form of the summing up of the Lord Chief Justice, the second finding of the jury must be construed as being limited to questions of fact. The meaning of the findings as a whole is that the allegations of fact were true and that the comment was unfair. It is obvious that the learned judge was directing the attention of the jury to the libel being divisible into two parts - allegations of fact and expressions of opinion. But he never asked the jury, as he should have done, Are all the words, including the expressions of opinion, true? Nor did he point out to the jury that in order to substantiate the plea of justification they must find that the expressions of opinion as well as the allegations of fact were true. In the circumstances it is impossible to say what the jury regarded as statements of

(1) [1906] 1 K. B. 403, 411.

(2) [1907] 1 K. B. 502, 507, 509.

(3) [1908] 2 K. B. 325.n, 327.

(4) [1908] 2 K. B. 309, 317, 319, 323

(5) (1890) 7 Times L. R. 1.

(6) [1907] 1 K. B. 502, 507.

(7) [1909] 1 K. B. 239, 255.

(8) (1909) 53 S. J. 671.

(9) (C. A.) Unreported. Jan. 13, 1914. Reported in the House of Lords on another question 112 L. T. 953. The judgments of the Court of Appeal are set out in the Appendix to the case in the House of Lords.

(10) (1924) 40 Times L. R. 299.

fact and what as expressions of opinion. The crucial question was never put to the jury. The Lord Chief Justice ought to have said: If you find everything true there is no occasion for the plea of fair comment. But, instead, he said that certain things were expressions of opinion, and he did not make it clear to the jury that those expressions of opinion must be included in the plea of justification. Therefore, assuming that the verdict in the respondent's favour cannot stand, there ought to be a new trial on the ground of misdirection. There must be a new trial if the question to be determined is not put to the jury in such a way as to satisfy the appellate tribunal that the mind of the jury was really directed to the essential question in the case: Jones v. Spencer. (1) Assuming misdirection, the appellate tribunal will decline to speculate what the jury would have done if the case had been properly presented to them. Therefore it cannot be said in this case that no substantial wrong or miscarriage has been occasioned by the misdirection: Bray v. Ford. (2) As to fair comment, to support the plea honest belief in the justice of the comments is not sufficient; there must be a reasonable degree of judgment and moderation: Wason v. Walter (3); Campbell v. Spottiswoode. (4) On the question whether the comment was made without malice, the language of the passage complained of shows such an unreasoning prejudice as to amount to malice in law. Language which is extravagant and too violent for the occasion may afford a ground for inferring malice: Royal Aquarium and Summer and Winter Garden Society v. Parkinson (5); Spill v. Maule. (6) There is therefore no ground for the view taken by Younger L.J. that there was no evidence to support the finding of the jury that the comment was not fair.

Theobald Mathew in reply referred to Order XXXIX., r. 6.

The House took time for consideration.

(1) (1897) 77 L. T. 536, 538.

(2) [1896] A. C. 44, 48, 50, 52, 55.

(3) (1868) L. R. 4 Q. B. 73, 96.

(4) (1863) 32 L. J. (Q.B.) 185, 202, 3 B. & S. 769, 781.

(5) [1892] 1 Q. B. 431, 444.

(6) (1869) L. R. 4 Ex. 232, 235.

1924. Nov. 21. VISCOUNT CAVE L.C. My Lords, this is an appeal by the defendants in the action from an order of the Court of Appeal in England reversing a judgment of the Lord Chief Justice in their favour and directing judgment to be entered for the plaintiff for 100l. and certain costs. [His Lordship stated the facts.] My Lords, I think it is desirable at this point to say that in my opinion this House is not concerned with any question as to the desirability of the use of contraceptives, or as to the propriety of encouraging such use by the circulation of printed matter or in any other way. No such question has been or could be raised or argued in this action, which is founded only upon an alleged libel upon the plaintiff as to the mode in which she has carried on her campaign; and, accordingly, I do not think it would be proper for me to express an opinion upon the wider question. The real questions to be determined on this appeal are, first, what is the meaning and effect of the verdict of the jury; and, secondly, whether there should be a now trial?

My Lords, the answers of the jury to the second and third questions put to them by the trial judge appear at first sight to be inconsistent with one another. The plea of justification - i.e., that the words complained of were true in substance and in fact - means that all those words were true and covers, not only the bare statements of fact contained in the alleged libel, but also "any imputation which the words in their context may be taken to convey": per Collins M.R. in Digby v. Financial News (1); and from this it has been held to follow that, if on such a plea a verdict is found in the defendant's favour, there is no room for any discussion of the question of fair comment. "The plea of fair comment does not arise if the plea of justification is made good": per Lord Loreburn in Dakhyl v. Labouchere. (2) But although this may be the ordinary rule, I agree with the Court of Appeal in holding that there is difficulty in applying it to the verdict in the present case. The Lord Chief Justice did undoubtedly, in summing up the case, draw a marked distinction between fact and opinion; and while he carefully and clearly instructed

(1) [1907] 1 K. B. 502, 509.

(2) [1908] 2 K. B. 325n., 327.

the jury that it was their duty to deal under the plea of justification with the "real sting of the matter" and the "real pith and marrow" of the statements made, he does appear to me to have invited them to deal under the category of fair comment with such parts of the alleged libel as consisted of mere expressions of opinion upon the facts alleged and proved. I proceed, therefore, to deal with the verdict upon the assumption that the jury acted upon that principle.

In this view of the matter it is necessary to consider what parts of the paragraph complained of the jury were entitled to treat as containing the "real sting of the matter," or in other words what were the substantive charges made against the plaintiff as distinguished from the opinions expressed upon the conduct so imputed; and it appears to me that upon a careful reading of the alleged libel those charges may be divided into three parts, as follows: (1.) By the first two sentences, which must be read together, the defendants in effect stated that (to quote the interpretation put upon those sentences by the plaintiff in her statement of claim) the plaintiff was taking advantage of the ignorance of the poor to subject them to experiments. By this statement Dr. Sutherland meant, as he told the jury, not that at the plaintiff's clinic surgical experiments were made upon poor persons, but that they were there subjected to a social experiment which was contrary to the laws of nature; and no doubt the jury, to whom it was left to determine the natural meaning of the statement, were satisfied that the statement was reasonably to be understood in that sense. In any case they found this charge, which was plainly a statement of fact, to be true; and passages were quoted to your Lordships from the plaintiff's published works and the evidence in the case which were amply sufficient to entitle the jury so to find. (2.) By the third sentence of the paragraph complained of as a libel the defendants alleged that at the plaintiff's clinic working women were instructed in a mode of contraception which had been described by Professor McIlroy as the most harmful method of which she had had experience. With reference to this allegation the learned judge instructed the jury that in

order to justify it the defendants must prove, not only that Professor McIlroy had used the quoted words with reference to a method of contraception (the use of a check pessary) recommended by the plaintiff at the clinic - as to which there was no question - but also that the method referred to was in fact of a harmful and dangerous nature. This charge, which was also a statement of fact, was found to be true; and there was undoubtedly evidence upon which the jury could find that the methods recommended by the plaintiff for the prevention of conception might not improbably be the cause of injury to the persons by whom they were used. This was particularly the case with regard to an apparatus called the "gold pin," which was said by several of the witnesses to be calculated to produce abortion. (3.) By the last two sentences of the alleged libel the defendants in effect charged the plaintiff with carrying on her campaign by means of literature not less obscene than that for which Charles Bradlaugh was prosecuted, and of such a nature as to infringe the criminal law which forbids such publications; and this charge, the most serious of all, was also found by the jury to be true in substance and in fact. Your Lordships' attention was called to passages in the plaintiff's books upon which the defendants had relied as supporting this charge, and those passages appeared to me to be of such a nature as fully to justify the finding of the jury. That all the above charges were treated at the trial as matters of fact to be considered under the plea of justification is clear from the circumstance that towards the end of the arguments counsel for the plaintiff handed to the Lord Chief Justice a note defining the statements of fact contained in the alleged libel in the following terms "(a) experiment, (b) victims, (c) most harmful method, (d) crime, (e) more serious"; and the summing up by the learned judge proceeded on these lines.

Then if, as the jury have found, all the above charges were true - if it be true that the plaintiff took advantage of the helplessness of the poor to subject them to experimental processes of a harmful and dangerous character and carried on her campaign by means of obscene publications which

constituted a breach of the criminal law - what remains in the alleged libel to which the description of "unfair comment" can have been intended by the jury to apply? Scrutton L.J., in his judgment in the Court of Appeal, pointed to two statements in the paragraph complained of as being statements of opinion upon which a question of fair comment might arise - namely, (1.) the statement referring to "the decent instincts of the poor," and (2.) the expression "monstrous campaign." I think that another expression - namely, that the offence of which Charles Bradlaugh was convicted was "less serious" than that of the plaintiff - may also be regarded as a statement of opinion; but apart from these three expressions I can find nothing in the alleged libel which the jury were entitled to rank under that category.

Then was there any evidence or other material upon which a reasonable jury could find that, assuming (as it must be assumed) that the charges above enumerated were true in substance and in fact, these expressions of opinion or any of them constituted unfair comment? This is plainly a question for the Court, which has to determine whether the document is capable in law of being a libel: per Collins M.R. in McQuire v. Western Morning News Co. (1) I do not think there was any such evidence. With regard to the first of these three statements - namely, the statement that the ordinary decent instincts of the poor are against the practice of using contraceptives - I doubt whether this is properly to be regarded as a comment upon the plaintiff's conduct at all. No doubt it is in a sense an expression of opinion; but it expresses the opinion of the writer, not as to the mode in which the plaintiff recommends the practice of birth control for adoption, but as to the practice itself. But, even assuming that the sentence contains a reflection upon the plaintiff, I am unable to understand how, having regard to the facts found to be true, the reflection can be said to be unfair. On the other hand, the word "monstrous" is undoubtedly a comment, and, if unfair, might give cause for complaint; but if, as the jury have found, the campaign in question has been carried out by

(1) [1903] 2 K. B. 100, 111.

means of the circulation of obscene and criminal matter, and if the defendants were justified in so stating, then the addition of the epithet "monstrous" can add nothing to the libel. And a like observation applies to the indication by the writer of his opinion that the plaintiff's offence was more serious than Bradlaugh's. If the substantive charge, that the campaign is obscene and criminal, may justly be made, a description of the same campaign as "monstrous" or "serious" is not a new and separate charge, but a mere shadow of the substantive charge for which a separate justification is not required. Upon this point there is considerable authority. Thus in Edwards v. Bell (1) Burrough J. said that "as much must be justified as meets the sting of the charge, and if any thing be contained in as charge which does not add to the sting of it, that need not be justified." So in Morrison v. Harmer (2), where the defendants had charged the plaintiffs with an impudent fraud and had referred to them as "scamps and rascals," it was held that it was sufficient for the plaintiffs to establish the substance of their charge, and that they need not justify the additional words quoted; and Tindal C.J. said: "We cannot .... understand these words, however offensive, as containing any charge different and distinct from that of which the truth has been justified in the first plea; and we are not aware of any authority, by which it is determined, that the justification of the truth of the substantial imputation contained in a libel, is not sufficient, unless it extends also to every epithet or term of general abuse which may be found in the description or statement of such imputation." And in Cooper v. Lawson (3) Coleridge J. said: "It would be as much too strong to say that all such comments are to be submitted to the jury; for there are cases, one of which has been put, where the inference is so fair, that, if you prove the fact, you prove the correctness of the comment." It appears to me that the present case falls within the principle of these decisions, and that the epithets "monstrous" and "more serious," which in gravity fall far below the substantive

(1) 1 Bing. 403, 409.

(2) 3 Bing. N. C. 759, 767.

(3) 8 Ad. & E. 746, 753.

charge and add nothing to it, need not be separately justified. If this be so, then there was, as Younger L.J. held, no evidence whatever on which a rational verdict could be found to the effect that the comment was unfair, and the judgment of the Court of Appeal in favour of the plaintiff cannot stand.

There is one further point to be dealt with. It was contended on behalf of the respondent that, assuming that the judgment in her favour cannot stand, there should be a new trial on the ground of misdirection. It was said that the Lord Chief Justice did not in any part of his summing up ask the jury to say whether all the words of the alleged libel were or were not true, and that he so distinguished fact from comment that the jury may have excluded from the plea of justification a substantive part of the libel and dealt with it as comment. Having carefully read the summing up with this point in mind, I do not think that this criticism is justified. The learned judge did indeed leave it to the jury to determine for themselves what parts of the words complained of were statements of fact and what parts were comment; but he invited them more than once to deal under the plea of justification with the real sting of the libel, and ultimately put to them the question whether the words complained of, that is to say, all the words complained of, were true in substance and in fact. It may be that the learned judge might usefully have explained to the jury that if the words complained of were substantially true there was nothing upon which a verdict of unfair comment could be founded, or he might (as at one time he was inclined to do) have withdrawn that issue from the jury; but if he was wrong in this the error was not to the prejudice of the plaintiff. In my view, therefore, a new trial should not be ordered.

For the above reasons I move your Lordships that this appeal be allowed and the cross-appeal dismissed, and that the order of the Court of Appeal be discharged and the judgment of the Lord Chief Justice restored, with costs here and below.

VISCOUNT FINLAY. My Lords, this is an action brought by Mrs. Stopes, the wife of H. V. Roe, against Halliday

Sutherland, the author, and Harding & More, Ld., the publishers of a work containing words alleged to be a libel upon the plaintiff. Sutherland pleaded that the words were true in substance and in fact and also, in the alternative, that they were fair comment on a matter of public interest. For the purposes of this appeal it is agreed that the publishers are to be treated as having raised the same defences.

The case was tried before the Lord Chief Justice with a special jury. In answer to questions put by the Lord Chief Justice the jury found that the words complained of were defamatory of the plaintiff, that they were true in substance and in fact and that they were not fair comment, and they assessed the damages, if any, at 100l. Upon these findings the Lord Chief Justice entered judgment for the defendants. On appeal, a majority of the Court of Appeal (Bankes and Scrutton L.JJ.) gave judgment for the plaintiff with 100l. damages, while Younger L.J. was of opinion that the appeal should be dismissed.

The plaintiff holds a degree in philosophy given by the University of Munich and has taken an active interest in the subject of birth control. She founded and manages a clinic for birth control at 61 Marlborough Road, Holloway, N., and has written and published several works on the subject. The defendant Sutherland is a doctor of medicine of the University of Edinburgh and is the author of a book entitled "Birth Control: A Statement of Christian Doctrine against the Neo-Malthusians," which contains the words complained of. As set out in the statement of claim they are as follows: [His Lordship set out the passage complained of as a libel.]

The defendant Sutherland pleaded: "(4.) The said words in their natural meaning are true in substance and in fact." Para. 5 of his defence raised the defence of public comment on matters of public interest, and para. 7 was as follows: "(7.) In the alternative, if, which is denied, the said words bore or were understood to bear the meanings alleged, this defendant says that in so far as the said words consist of allegations of fact the same are true in substance and in fact and in so far as the said words consist of expressions of opinion the same

are fair comments made in good faith and without malice upon such facts and upon such other matters as are referred to in paragraph 5 hereof, which said facts and other matters are matters of public interest." The defence contained particulars of para. 4 and of paras. 5 and 7. These defences are to be taken to have been also raised by the second defendants.

It is clear that the truth of a libel affords a complete answer to civil proceedings. This defence is raised by plea of justification on the ground that the wolds are true in substance and in fact. Such a plea in justification means that the libel is true not only in its allegations of fact but also in any comments made therein.

The defence of fair comment on matters of public interest is totally different. The defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard to a matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence there must, of course, be a basis of fact on which the comment is made.

For a good many years past a practice has prevailed of raising this defence by what has been called the "rolled up plea," but it will be found that this term is a misnomer based on a misconception of the nature of the plea. Such a plea states that the allegations of fact in the libel are true, that they are of public interest, and that the comments upon them contained in the libel were fair. The allegation of truth is confined to the facts averred, and the averment as to the comments is not that they are true but only that they were made in good faith, and that they are fair and do not exceed the proper standard of comment upon such matters.

There has been a good deal of misconception as to the nature of this plea. It has been sometimes treated as containing two separate defence rolled into one, but it in fact raises only one defence, that being the defence of fair comment on matters of public interest. The averment that the facts were truly

stated is merely to lay the necessary basis for the defence on the ground of fair comment. This averment is quite different from a plea of justification of a libel on the ground of truth, under which the defendant has to prove not only that the facts are truly stated but also that any comments upon them are correct.

The nature and the effect of this defence are well stated and explained by Wessels J.P. in Van der Hoven v. Erasmus (1) in the Supreme Court of South Africa. I am unable to agree with the view taken upon the subject by the Court of New Zealand in Norton v. Bertling. (2)

Such a defence on the ground of fair comment will fail if the jury are satisfied that the libel was malicious or that it exceeded the bounds of fair comment.

On the question of fair comment, the law is in my opinion correctly stated by the Master of the Rolls (afterwards Lord Collins) in the case of McQuire v. Western Morning News Co. (3): "It is, however, for the plaintiff, who rests his claim upon a document which on his own statement purports to be a criticism of a matter of public interest, to shew that it is a libel - i.e., that it travels beyond the limit of fair criticism; and therefore it must be for the judge to say whether it is reasonably capable of being so interpreted." In this passage Lord Collins followed on the lines laid down in the judgment of the Court in Henwood v. Harrison. (4) The judgment of the majority of the Court (Willes, Byles and Brett JJ.) was delivered by Willes J. (Sir James Shaw Willes), and on p. 628 will be found the following passage: "But it is not competent for the jury to find that, upon a privileged occasion, relevant remarks made bona fide without malice are libellous. As Lord Wensleydale said in the same case" (Parmiter v. Coupland (5)), "'Every subject has a right to comment on the acts of public men which concern him as a subject of the realm, if he do not make his commentary a cloak for malice or slander.' It would be abolishing the law of privileged

(1) 1922 T. P. D. 1.

(2) (1910) 29 N. Z. L. R. 1099.

(3) [1903] 2 K. B. 100, 111.

(4) (1872) L. R. 7 C. P. 606.

(5) (1840) 6 M. & W. 105, 108.

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. 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. In actions of libel, as in other cases where questions of fact, when they arise, are to be decided by the jury, it is for the Court first to determine whether there is any evidence upon which a rational verdict for the affirmant can be founded." There are other authorities to the same effect which are conveniently collected by Mr. Gatley in his work on the law of libel and slander (pp. 364-367).

On consideration of the application for judgment on the findings of the jury, the Lord Chief Justice said (p. 396 of the Appendix, letter E): "Mr. Charles, at the conclusion of the case for the plaintiff, submitted to me that there was no evidence of malice, and invited me in effect to say that upon the defence of fair comment it was not necessary to submit any question to the jury. My own mind inclined in that direction, but upon the whole I thought it was more satisfactory, inasmuch as I thought the matter ought to be wholly before the jury, to leave that question also to the jury, and I decided not to withdraw it." I think there can be no doubt that the Lord Chief Justice was right in so thinking, as it would have been very unsatisfactory to deal with the point raised by Mr. Charles before the facts had been ascertained by verdict. After the verdict the Lord Chief Justice, after hearing argument, entered judgment for the defendants. In stating his decision, the Lord Chief Justice refers to the submission so made by Mr. Charles. That submission was in effect that there was no evidence either of malice or of any excess in the comments, and on this ground I think that the decision of the Lord Chief Justice that judgment should be entered for the defendants was right. I do not, however, think in the very special circumstances of this case that the entry of judgment for the defendants can be supported simply

on the ground of a verdict for the defendants on the plea of justification on the ground of truth. Of course, a clean finding for the defendants on a plea of justification entitles the defendants to judgment. But in the present case when the summing up is looked at it is impossible to treat the finding of the jury as a finding that the whole libel, including comment as well as facts, is true. I read the summing up as a direction to the jury that in considering the justification they were to find whether the statements of facts in the libel were true, while as to any portion of the libel consisting of comment, they were to say whether it was fair comment. The jury found that the facts were correctly stated, but as regards the comment they found that it was not fair. It is therefore, in my judgment, impossible to deal with the case as if there had been a finding for the defendants upon the plea of justification in the ordinary way. The finding was merely that the factshad been proved.

On the plea of justification the question which ought to have been left to the jury was whether the libel, comments as well as averments of fact, was true. I cannot find that that question was put. In my opinion the Lord Chief Justice in his summing up divided averments of fact from comments, and it was as regards the former only (averments of fact) that the jury were asked whether they were true. The finding of the jury must be read as if they had said "the averments of fact in the libel, as distinguished from the comments are true." Then in the answer to the third question the jury sap that the comment was not fair. It does not, however, in my opinion follow that there should be a new trial on the ground of. misdirection. The jury have found that the facts are truly averred. Given these facts, there is nothing on which in point of law the finding that the comment was unfair can be supported. This is a question of law for the Court, and in my opinion it could properly be answered only in one way, and the Lord Chief Justice and Younger L.J. were right in saying that on these findings judgment must be entered for the defendants.

What were the averments of fact in the libel? As

formulated by counsel for the plaintiff, they will be found in the note of the Lord Chief Justice on p. 415 of the Appendix.

I. Heads (a) and (b) relate to the sentence in the libel "But owing to their poverty, lack of learning and helplessness, the poor are the natural victims of those who seek to make experiments on their fellows."

II. Head (c) relates to the allegation in the libel that at the birth control clinic "working women are instructed in a method of contraception described by Professor McIlroy as the most harmful method of which she had had experience." The jury were rightly told by the Lord Chief Justice that the question for them was whether these words, which were used by Professor McIlroy, were in fact true.

III. Heads (d) and (e) relate to the following words: "Charles Bradlaugh was condemned to jail for a less serious crime."

I proceed to deal with these three passages.

Heads I. and II. may be conveniently treated together, and they are so dealt with in the summing up. The Lord Chief Justice in his summing up discusses at some length the question whether the term "experiment" may be properly applied to the methods advocated by the plaintiff. He points out that the word may bear either of two different meanings. It may be said that the whole system of what is called Neo-Malthusianism is an experiment or that experiments have been made in particular cases. On this point the Lord Chief Justice quotes Dr. Maurice Abbott-Anderson. He was asked (Appendix 381 F.): "Now can you express an opinion as to the stage to which the science of contraception has attained?" and he answers: "Yes, you see it is all experimental. There is no definite statement made by anybody, anywhere, either by personal experience or in any book, that this or that method is a certain contraceptive." The Lord Chief Justice goes on: "It is all experimental. Now the defendant says: by the natural and ordinary interpretation of this phrase, what is meant is that steps have been taken to bring this new gospel, to apply this great social experiment to the poor, and that that

is bad. They take a step further and say that even if you put a limited meaning upon it - of course it is entirely for you to say what you think these words mean, remembering always the standard is what the reasonable reader would have conveyed to him by those words - they say further: if you take the more restricted meaning of the word 'experiment' something of that sort did go on."

The Lord Chief Justice then refers to the two methods described by the plaintiff. The first of them is the check pessary. He points out that while the plaintiff's witnesses say it is all right, a group of eminent witnesses for the defendants say that if the pessary is not fitted tightly it is useless, while if it is fitted tightly it will interfere with the discharge of secretions, leading to mischief and, it may be, to gangrene and peritonitis. The second method to which he adverts is the gold pin; he points to the evidence that its use promotes conception but causes early abortion.

With regard to the pessary, the jury were told by him that the question for them was whether the statement made about it by Professor McIlroy was correct; this is a question of fact and is covered by their finding of truth. There appears to be no contradiction of the evidence that the gold pin is an abortifacient.

The question whether the plaintiff's methods are experimental and whether experiments are in fact performed are questions of fact and as such have been answered in the affirmative by the jury and they have found that as to the danger that attends the use of the pessary.

I go on to deal with Head III., being the allegation in the libel that the crime of Bradlaugh was less serious than that of the plaintiff.

The conviction of Bradlaugh proceeded on the ground that his book describing and recommending methods of birth control was an obscene libel. The obscenity was simply in describing and recommending such methods of control. It will be found that the plaintiff's books not only advocate such methods but contain what is obscene, whatever view may be taken of such methods.

I have gone through the allegations made as to matters of fact, but there remain two sentences of the libel which were relied on as expressions of opinion and libellous.

The first was contained in the words "the ordinary decent instincts of the poor are against these practices." This, it is said, was libellous. The plaintiff's contention on this point, when analyzed, comes to this, that these words involve the expression of an opinion that there was something reprehensible in these practices which revolted the instincts of the poor. It appears to me that it is impossible to hold that the bounds of fair comment are exceeded by the expression of an opinion honestly held that such practices are revolting to the healthy instincts of human nature. There is an old and widespread aversion to such methods on this ground. This sentiment was voiced by the historian of the Decline and Fall of the Roman Empire when in his fortieth chapter he referred to such practices as "detestable precautions."

The other passage relied on by the plaintiff for this purpose was as follows: "It is truly amazing that this monstrous campaign of birth control should be tolerated by the Home Secretary." It has been asserted that the epithet "monstrous" passed the limits of fair criticism. Whether the particular epithet is too strong or not must depend upon the nature of the facts upon which the defendant was commenting - namely, the clinic itself and the plaintiff's publications in support of it. The work for the publication of which Bradlaugh was sentenced was, as I have pointed out, confined to the inculcation of methods of birth control. The plaintiff has done what Bradlaugh did, but she has done something more. We were referred in the course of the argument to certain passages in the books published by the plaintiff of such a nature that they were not read aloud. These books have a very large circulation, and for my part I cannot doubt that they are calculated to have a most deplorable effect upon the young of both sexes. It would be absurd to say that the epithet "monstrous" as applied to such a "campaign" passes the bounds of fair criticism, or that it was not fair comment to use language implying that such

passages as those to which I have referred aggravate the criminality of the obscene libel.

A great deal has been said about the sincerity with which the plaintiff holds the doctrines which she teaches and carries into practice. One of the plaintiff's books is entitled "A New Gospel to all Peoples." In the prefatory note the author claims that this gospel was the result of inspiration, and that she was merely the vehicle for conveying a message from a higher power. This message contains a foul charge against "certain ministers of the Church" with regard to the instruction given by them to the young committed to their charge. Her sincerity is not the question. If an obscene libel is published, the fact that it forms part of a campaign prosecuted with all sincerity affords no defence. The right of free speech is claimed for the advocates of the new gospel, but they must submit to have their tenets and their practices criticized. A French savant is reported to have said that if he had been consulted at the time of the creation of the world he could have given some hints of great value; and this appears to some extent to be the attitude of the plaintiff.

I think it is unfortunate that the plaintiff uses in connection with her clinic the title "doctor." She is a Doctor of Philosophy, but the use of the term "doctor" must lead a great many of the people who frequent the clinic to believe that the person in charge of it is a Doctor of Medicine. This is a common use of the term "doctor" in ordinary conversation, and where a "doctor" is found in charge of a clinic it would naturally be supposed that he is a Doctor of Medicine. Any person who is in fact a Doctor of Medicine would, of course, be subject to the disciplinary action of the Medical Council.

I desire to add some comments upon the manner in which the Lord Chief Justice dealt with the facts of the case in their broader aspects. He begins this part of his summing up by making some observations as to the manner in which, in dealing with the young, sex problems should be handled (Appendix, 376 et seq.). These observations appear to me to be characterized by knowledge of the world and by sound common sense. Some instruction on such matters there must be, but it should

be communicated by a father or mother or some person in loco parentis to the boy or girl individually, and not in classes. The Lord Chief Justice animadverts upon the mischief that might result from such teaching if indiscriminately given, and adopts the canon laid down in the course of the evidence - "sex teaching, yes, but in cold scientific language, not mixing up physiology with emotion, not teaching such truths as need to be taught in the language of adjectives and rhetoric, but with austerity, with coldness, stating the facts and no more." There should be nothing, he says, in the shape of "romantic emotional rhetorical rhapsody." I think few will be found to say that these canons have been observed by the plaintiff in her treatment of these very delicate questions.

A passage at the end of the summing up seems to me to go to the root of the matter (Appendix, p. 389): "Now what is said here? Dr. Sutherland says that this is as bad as the Bradlaugh pamphlet and worse, and he says that in two respects. You have passages, he says, in these books to which no parallel can be found in the pamphlet published by Mr. Bradlaugh - no parallel at all. Your attention has been directed to certain passages" - the Lord Chief Justice says he is not going to read them, and proceeds: "But just consider. The argument is that these are books which may be exposed for public sale indiscriminately, in great quantities, in order to fulfil a mission. The mission is variously described at various points of the argument. The teaching about sex is mixed up with the teaching about contraceptives. The teaching about contraceptives is mixed up with other matter. But it is all said to have been done in pursuance of a mission. Now you may think that, however desirable it may be that proper teaching about sex should be given properly and privately to young people, it is a calamity that books of this kind should be published broadcast. You may think so, or you may not think so, but whatever view you take about that question, you may ask yourselves this question: What legitimate purpose can be fulfilled by the insertion in these books - I do not reread the passages, but I remind you of them, and I must use words which will remind you of them.

What can be the legitimate purpose of the insertion in these books, to be read by married and unmarried, young and old persons of both sexes, whoever can find, in the one case, 6s. and in the other case 3s. 6d., passages which describe the male organ in quiescence and in erection, which describe the encouragement which a man should give to a woman and a woman should give to a man before the act of intercourse is entered upon, and which analyse the successive phases and sensations of the act of sexual intercourse? Obscene! .... You know the passages, you know the context, you know the circulation of these books; can you say that they fall short of being obscene publications?"

I must add a few observations as to the proceedings in the Court of Appeal.

Bankes L.J. states his reasons towards the close of his judgment on p. 422 of the Appendix. What he says comes to this, that the Chief Justice left the plea of justification to the jury simply so far as averments of fact are concerned, and therefore their answers cannot be read as applying to comment. As I have already pointed out, that is perfectly true, but the Lord Justice does not deal with the question whether, when all the averments of fact are found to be true, there remains anything in the shape of comment as to which it could be said that there was evidence fit to be left to the jury to show that the comment was unfair.

I pass to the judgment of Scrutton L.J. I agree with him in thinking that the Lord Chief Justice took the opinion of the jury on the question of truth merely upon the averments of fact in the plea of justification. With regard to what I think is the real point of the case, the Lord Justice says this (p. 427): "There was some faint suggestion before us that when you had ascertained what were really the allegations of fact in the libel, it was not possible for a reasonable jury to find that the comments on those facts were unfair. This point was not taken at the trial, and I think it must fail here." The point was taken at the trial by Mr. Charles, as appears from what was said by the Lord Chief Justice in a passage to which I have already referred (Appendix, p. 396 E), and whatever the

merits of the argument I think it sufficiently appears from what the Lord Justice says that the point was taken in the Court of Appeal. The Lord Justice goes on to point out that the standard of what is considered depravity varies from time to time and that the standard may not be the same in 1923 as in 1877. "From this point of view," he says at p. 428, "there was a wide field to be covered by the questions as to fair comment, to which the jury might address their minds as the tribunal representing ordinary current opinion at the time." But after all said and done, the question really lies in a very small compass. It is this: Could any reasonable man say that on the facts found, which are really few and simple, the comments were excessive?

The reason on which Younger L.J. bases his conclusion in favour of the defendants is this (Appendix, 433 C): "On what I conceive to be the narrowest permissible view of the answer to the second question, the defendants have, I think, justified to such extent as is required of them in such a case as this: the charge in respect of these matters of comment, in my judgment, on the principle laid down in such cases as Morrison v. Harmer (1) has been substantially met and answered in that justification." It comes to this, that when the facts are found as they were here, there is no ground on which it can with any reason be said that the limits of fair comment were exceeded.

My Lords, I agree with the conclusion reached by the Lord Chief Justice and by Younger L.J. I think that the appeal should be allowed with costs here and below and that judgment should be entered for the appellants.

LORD SHAW OF DUNFERMLINE. My Lords, the respondent brought this suit for damages caused to her by an alleged libel appearing in a book entitled "Birth Control," of which the appellant, Sutherland, was the author, and the other appellants, Harding and More, Ld., were the printers and publishers.

The words of the alleged libel have been quoted in extenso by my noble and learned friend on the Woolsack. As to

(1) 3 Bing. N. C. 759.

the merits or otherwise of the allegations themselves, or the theories or practices with which the books of the respondent deal, or as to their scientific accuracy or inaccuracy, or the social or moral advantages or disadvantages which would follow from their adoption - upon all of these things, my Lords, I must resolutely decline to express any opinion whatsoever. I make no judgment upon the views of others: but, speaking for myself, in thus declining to enter upon a matter of deep contest in the medical and sociological and moral spheres, or even to be induced to express or indicate any view or inclination of mind thereon, I am simply paying the respect which is due to the correct ambit of a purely judicial task. This appeal presents questions of law, and in my opinion must accordingly on that footing alone be disposed of.

To make written language libellous, or spoken language slanderous, it is fundamental and essential that they be of and concerning a person, be untrue in substance and in fact, and be defamatory in nature. There is no exception to these rules, whether the language be the language stating fact or stating opinion. When facts are stated they can be justified as being, although defamatory and of and concerning the plaintiff, yet true; when opinions are stated they can be justified on precisely the same grounds - namely, that although of and concerning the plaintiff and defamatory, yet they also are true. In the next place, when in the course of the statement of defamatory matter both facts and opinions are set forth, it is upon similar principles open to a defendant to say that the entirety, both fact and opinion, is true in substance and in fact. That was the present case. It was so pleaded and the trial was conducted by both parties upon that comprehensive defence. In every one of these cases, if the truth of the libel is affirmed by the jury the case is at an end. There is no room for introducing fair comment or of perplexing the jury with the consideration of such a plea, when the defendant has justified the truth of all he has said, whether in stating fact or expressing opinion.

There are two qualifications which must be made upon this absolute rule. In the first place, truth must not be stated

without being fully stated; that is to say, without that context in the case of a libel, and without those circumstances in the case of a slander, which would put a different complexion upon matter which is libellous or slanderous standing by itself, and would possibly or probably destroy altogether its character as such. In the second place, a statement of fact or of opinion which consists in the raking up of a long-buried past may, without an explanation (and, in cases which are conceivable, even with an explanation), be libellous or slanderous if written or uttered in such circumstances as to suggest that a taint upon character and conduct still subsists, and that the plaintiff is accordingly held up to ridicule, reprobation and contempt.

Subject to these qualifications, the rule as to justification in fact being exclusive, as a plea, of a plea of fair comment, in the sense of making the latter unnecessary, is, in my opinion, an absolute rule.

I recognize to the full the great difficulties in which the Lord Chief Justice of England was put in charging the jury, on account of the state of the authorities upon this question of procedure. It is further true that, while the defence of Dr. Sutherland did fully and comprehensively state of the entire libel that it was true in substance and in fact, both it and the defence of the publishers alternatively set forth a defence of "fair and bona fide comment made and published without malice on matters of public interest." And it is interesting further to observe - the Bar equally with the Bench being apparently perturbed by the state of the authorities - that the "rolled up plea" in defence was taken. It is thus expressed: "(7.) In the alternative" - that is, be it observed, an alternative or supposed alternative to two separate and distinct defences of the words being true in substance and in fact, and of the words being fair and bona fide comment - "In the alternative, if, which is denied, the said words bore or were understood to bear the meanings alleged, this defendant says that in so far as the said words consist of allegations of fact the same are true in substance and in fact and in so far as the said words consist of expressions of opinion the same are fair comments made in good faith and without malice upon

such facts and upon such other matters as are referred to in paragraph 5 hereof, which said facts and other matters are matters of public interest." Such a statement of defence, my Lords, arising not unnaturally from the state of the authorities to which I have alluded, is sheer surplusage, in view of the items of defence separately and articulately stated in that defence. It is, however, the "rolled up plea," and in a little I shall consider what that means.

In those circumstances it becomes imperative and crucial to consider the course of the trial.

Much, my Lords, was the subject of discussion as to the scope of fair comment in this case. In my opinion, all this was unnecessary, because, whether fact or opinion, the trial was conducted most frankly and courageously and, I may add, unwaveringly on the part of Mr. Serjeant Sullivan for the defendants, on the footing that the libel in its entirety and in all of its contents was true in substance and in fact, whether statement, inference, or opinion. And it was met in a similar spirit by Mr. Hastings for the plaintiff.

I should explain further that in a plea of justification the defence that a matter of opinion or inference is true is not that the defendant truly made that inference, or truly held that opinion, but is that the opinion and inference are both of them true. A counsel does not lightly accept a burden of that character; because the result is that, if it fail, the damages are in the ordinary case very substantially increased - the slander or libel being accentuated and continued in the proceedings at the trial itself. But when such a defence is undertaken in its entirety, and prevails, then it does so in such a way as to leave nothing in the libel standing, and no further question as to comment to be considered.

We had at your Lordships' Bar for some days a most able and exhaustive discussion of the subject of what is known as the "rolled up plea." In Walker & Son v. Hodgson (1) Vaughan Williams L.J. notes the origin of this plea: "This form of pleading," says he, "which I always think very indefinite and embarrassing, has, however, been adopted and sanctioned

(1) [1909] 1 K. B. 239, 247.

ever since the decision of Mathew and Grantham JJ. in Penrhyn v. Licensed Victuallers' Mirror (1), and must now be accepted as proper pleading." The Penrhyn case contains the pleading thus: "In so far as they consist of allegations of fact the said words are true in substance and in fact, and in so far as they consist of expressions of opinion they are fair comments made in good faith and without malice upon the said facts, which are a matter of public interest." Over and over again that plea has been repeated, until a stage has arrived when its meaning in plain English has been subjected by the Courts in England to a construction apparently unwarranted by its language and certainly productive of confusion in practice.

A very recent illustration may verify this. In Aga Khan v. Times Publishing Co. (2) Scrutton L.J., in the course of his judgment, said: "The two pleas (justification and fair comment) had been rolled into one, and there had been a great difference of opinion in the Court of Appeal on the question whether or not it was a plea of justification and fair comment or of fair comment only. The words, 'In so far as the words consist of allegations of fact, the said words are in their natural and ordinary meaning true in substance and in fact,' by themselves seemed to his Lordship clearly to state a plea of justification, because they justified the words in their natural and ordinary meaning, and it was the natural and ordinary meaning which conveyed the imputation of a defamatory character, and if he (Lord Justice Scrutton) were left to himself, he, personally, would direct particulars to be given of the facts which were alleged to be true and of the comments which were said to be fair."

If I also were left to myself I should respectfully agree with the opinion and suggested direction stated in this last paragraph. Indeed, I go so far as to believe that a similar opinion must have underlain certain observations of Lord Loreburn L.C. in Dakhyl v. Labouchere. (3) And I must add that if the rolled up plea were interpreted and worked in

(1) 7 Times L. R. 1.

(2) 40 Times L. R. 299, 300.

(3) [1908] 2 K. B. 325n.

this correct and sensible manner, then I should see nothing wrong with it. I must, however, make my best endeavour to interpret the true result of the authorities as they stand; and I cannot but be moved by the views of my noble and learned friends who have had a very wide experience upon what is after all purely a question of English practice.

Another case, Digby v. Financial News (1), must be mentioned. It went very far. The Master of the Rolls (Sir Richard Henn Collins) put it thus: "When a plea of justification is pleaded, it involves the justification of every injurious imputation which a jury may think is to be found in the alleged libel." So far so good; but the learned judge proceeds: "This plea" - that is, the rolled up plea already cited - "does not purport to be a plea of justification of the imputations, if any, contained in the libel; it is nothing of the sort, but is a plea intended to raise a totally different defence, that of fair comment." Cozens-Hardy L.J. treats the defence as having "carefully abstained from placing on the record a plea of justification."

I think that error is apt to arise from the manner in which the word "justification" is used in regard to the composite plea. If it is meant to apply to justification simpliciter, that is to say to the whole libel, then it is undoubtedly sound to say that the rolled up plea does not cover it. But I venture the opinion that the rolled up plea never did profess a general justification. That plea is specifically limited. It means "Quoad facts - true; quoad comments - fair." No one denies that if a defendant puts such a plea of specifically limited justification in alone, as a separate and articulate plea standing by itself, he will be entitled to carry on the case to judgment on the footing of being allowed to prove it. But when he has added to that another plea, which might also have been separately stated and allowed to proof - to the effect that in so far as opinions were expressed they were fair comment, then the law (in which I reluctantly acquiesce) is that the combination of these two defences together in what has been called a rolled up plea must be taken as a plea of fair comment

(1) [1907] 1 K. B. 502, 507, 510.

only: the partial justification averred in it is not the subject of probation - that is rolled out: and finally the case is conducted solely on the footing that the facts are assumed to be true. Courts and practitioners will no doubt definitely act upon this footing from this time forward.

I have thought it right to deal with this topic out of respect to the judgments of the Courts below and to the careful arguments at the Bar of the House.

But I must add that although this fair comment plea has proved an awkward cross-current in the case, it is not and never was the main stream of it. For I repeat that the case was pleaded and fought to judgment upon the separately stated issue of complete justification.

In the ordinary case justification of a libel is pleaded simpliciter et generaliter, for the simple reason (1.) that there were no opinions in it, but only allegations of fact; or (2.), as in this case, that both opinions and allegations of fact were true; or (3.), also as in this case, that the opinions followed quite accurately from the facts; they were but the shadow of these, and introduced no matter which by itself would have been actionable. Once that justification is established, the verdict must be applied for the defendant.

But a justification need not be to the whole, but may be to a part. If a man says that a certain neighbour of his was guilty of manslaughter and was also a thief, it is perfectly open to take a plea in justification of either charge only.

In Clarke v. Taylor (1), Tindal C.J. said: "There can be no doubt that a defendant may justify part only of a libel containing several distinct charges. .... But if he omits to justify a part which contains libellous matter, he is liable in damages for that which he has so omitted to justify. The plea in the present instance does not affect to justify the whole of the publication, and we are to see whether the part omitted would, by itself, form a substantive ground of an action of libel. I cannot say that it is of that description."

It remains to be considered what are the conditions and breadth of a plea of justification on the ground of truth. The

(1) 2 Bing. N. C. 654, 664.

plea must not be considered in a meticulous sense. It is that the words employed were true in substance and in fact. I view with great satisfaction the charge of the Lord Chief Justice when he made this point perfectly clear to the jury, that all that was required to affirm that plea was that the jury should be satisfied that the sting of the libel or, if there were more than one, the stings of the libel should be made out. To which I may add that there may be mistakes here and there in what has been said which would make no substantial difference to the quality of the alleged libel or in the justification pleaded for it. If I write that the defendant on March 6 took a saddle from my stable and sold it the next day and pocketed the money all without notice to me, and that in my opinion he stole the saddle, and if the facts truly are found to be that the defendant did not take the saddle from the stable but from the harness room, and that he did not sell it the next day but a week afterwards, but nevertheless he did, without my knowledge or consent, sell my saddle so taken and pocketed the proceeds, then the whole sting of the libel may be justifiably affirmed by a jury notwithstanding these errors in detail.

In the second place, however, the allegation of fact must tell the whole story. If, for instance, in the illustration given, the facts as elicited show what my writing had not disclosed - namely, that the defendant had a saddle of his own lying in my harness room, and that he took by mistake mine away instead of his own and, still labouring under that mistake, sold it - then the jury would properly declare that the libel was not justified on the double ground that there were facts completely explaining in a non-criminal sense anything that was done, and the jury would disaffirm the truth of the libel because, although meticulously true in fact, it was false in substance.

Then, as to the breadth of the justification. When a plea of truth in substance and in fact is made it affirms not only in the sense I have mentioned the facts, but it affirms all that attaches to them as their natural and reasonable meaning. I think the charge of the Lord Chief Justice was correct upon that aspect of the case also. This point as to the breadth of

the justification is an essential matter to be regarded where the "rolled up plea" is taken, because that "rolled up plea" by law assumes the truth of the facts in the libel and quoad opinion pleads a fair comment as to that. The assumption as to the facts being true must similarly be interpreted by the breadth to which I have referred - namely, that the facts, whether justified as true or assumed to be true, carry with them all that these facts reasonably and naturally imply. And secondly, the point as to fair comment with regard to opinion is only reached when there is separate matter in the words used - separate matter of expressed opinion which goes beyond the natural meaning attaching to the facts, but which for all that may be held perfectly within the right of a free citizen, and not to contain any separate actionable matter.

It is satisfactory to know that this at least is long and well settled. In Cooper v. Lawson (1), a case decided nearly eighty years ago, it was held that one observation with which the libel concluded, "not being a mere inference from the previous statement, but introducing a substantive fact, required a distinct justification; and therefore that, on trial of the above issue, it was properly left to the jury to say, not only whether the evidence made out the facts first alleged, but also whether the imputation, that the plaintiff had been hired, was a fair comment." Coleridge J. remarked that "there are cases, one of which has been put, where the inference is so fair, that, if you prove the fact, you prove the correctness of the comment. But this was not such a case. The comment introduced an additional fact, and then it was for the jury to say whether that was fairly done, or not," and Lord Denman C.J. said: "A comment may introduce independent facts, a justification of which is necessary. The plea is perfectly good, justifying the libel partly as the report of proceedings before a Court, partly as stating that which is in itself true, and partly as giving a fair and bon‰ fide commentary on the proceedings stated. Now a comment may be the mere shadow of the previous imputation; but, if it infers a new fact, the defendant must abide by that inference of

(1) 8 Ad. & E. 746, 753.

fact, and the fairness of the comment must be decided upon by a jury."

In Clarke v. Taylor, already cited, Vaughan J. said(1): "The point is whether any distinct act of criminality imputed to the plaintiff has been left unjustified"; and Bosanquet J. said: "Under the general issue the jury had to consider whether it" (the libel charging the plaintiff with having acted in a great swindling concern at Manchester) "amounted to such a charge or not. The jury have found the justification to be proved, and that justification includes everything material in the charge." Clarke v. Taylor (1) is very important, as undoubtedly the swindling transactions which were libelled as having taken place at Manchester were also in a separate part of the libel said or implied to have been continued at Leeds. This difference of locus, however, was held not to be indicative of a swindling transaction separately carried out at Leeds, but the Court - a very powerful Court considered that the gist of the matter was in truth the charge of swindling at Manchester, with a suggestion that there might have been a few days before a similar practice at Leeds. The sting of the substantive libel having been established as applicable to Manchester and the jury having found for the defendants on that part of the libel applicable to Manchester which was justified, the Court refused to enter a verdict for the plaintiff on the passage not justified - namely, that applicable to the preliminary visit to Leeds. I venture to think that the case of Clarke v. Taylor (1) is of the very highest authority for showing that in libel cases a view meticulously taken, as I have mentioned, of the words of a libel is not sought for, but the opinion of the jury is accepted as conclusive and final on justification if it applies truly to the substantial matter, criminal, nefarious, or contemptible, which the libel as a whole did affirm.

But in truth, my Lords, one cannot but see that in numerous cases this defence of fair comment when taken is reached too soon. If the facts alleged be substantially true and nothing is said in comment which adds to the sting thereof or produces

(1) 2 Bing. N. C. 666, 668.

separate libellous matter, then in all such cases the plea of fair comment should never be reached at all.

I purposely refrain, my Lords, from much of the law as developed more particularly in English authorities as to what is relevant or required to establish a plea of fair comment. The law upon that subject will, no doubt, demand early review. But I refrain because in my opinion the point of fair comment was never reached, or ought never to have been reached in this case. The Lord Chief Justice did make a most proper attempt to present the issues of fact alleged to be raised by the libel separately and distinctly to the jury. He asked what those were, putting the question to Mr. Hastings, the experienced counsel for the plaintiff, and having received his items and tabulated these he charged the jury upon all of them; and, so charged, the jury found that all of them were justified. It is now pleaded, however, that one particular was not put separately to the jury - namely, that the facts being as alleged, the conduct of the plaintiff was monstrous. I think such pleading comes too late; it is not, in my opinion, open to a party so acting to complain because some other item was not dealt with. But quite apart from that, it is to be noted that one of the facts affirmed by the jury was that the plaintiff had published criminal matter, that is to say, obscene libels. The whole of this part of the pleading seems to me an afterthought and to be without warrant. In the first place, the Lord Chief Justice was not asked to put separately to the jury on the issue of justification in fact whether the conduct was monstrous. In the second place, if he had been so asked he could have said most properly to the jury that if they have found the criminal action in the obscenity of the libels as just alluded to, they need not trouble as to its being monstrous, for that, of course, would reasonably and naturally follow from their opinion upon the first point.

I have to confess accordingly that while the Lord Chief Justice, confronted with conflicting authorities, was placed in a position of difficulty, yet in my opinion he would have been warranted in stating broadly that if the justification in its entirety of all the libel were proved the jury need not trouble

about fair comment. I think that that should have been done. The case having been, however, left to them as if fair comment still remained in it, the jury - also manifestly in doubt - while affirming the truth of the libel as a whole have found unfair comment and given a slender award of damages.

My difficulty in the case really arises upon the point of whether in such circumstances a new trial should be ordered. I think that the jury ought to have had the point more plainly put to them, that if the facts and all that they reasonably implied were found true, then their consideration of the fair comment plea became unnecessary. I am much relieved upon this subject by these two considerations: First, of the view of the Lord Chief Justice in applying the verdict. When confronted with these manifestly inconsistent verdicts of the jury the Lord Chief Justice without difficulty affirmed, and in my opinion rightly affirmed, the law that once a verdict had been found that the libel was true in substance and in fact, no room was left for any fair comment. It may be asked, Why then was fair comment put to the jury? The reason why it was put to the jury was that, suppose the verdict of justification had been negatived, or had only been affirmed in part, then, but then alone, the plea of fair comment would have had to be considered. But that was not so. The plea of justification in its entirety succeeded, and I think the learned Lord Chief Justice showed his true opinion - one which I respectfully think was right in law - and adopted the only logical course open to him in the circumstances by applying the entirety of the verdict in favour of the defendant. "I do not say," says Patteson J. in Cooper v. Lawson (1), "I do not say that, in all cases where an alleged libel consists partly of comment, it should be left to the jury to say whether the comment is fair, because, if, as the Attorney-General has put it, the words were, 'he has murdered his father, and therefore is a disgrace to human nature,' it would be ridiculous to ask whether the observation was or was not a fair comment." Similarly in the present case the opinion expressed in the article to the effect that the plaintiff's conduct was

(1) 8 Ad. & E. 752.

criminal as described puts it out of the question to say that a jury so affirming could yet give damages for calling such conduct monstrous. The verdict accordingly in my view was properly applied.

But there is a further and to my mind a cogent reason why a new trial should not be granted. From what I have just observed it could only be granted on the ground of technique. For it is manifest that the real struggle between the parties was as to the truth of the charges made. The learned counsel for both parties put that by their addresses plainly before the jury, and by the verdict of justification I think that issue was in all its breadth settled on the affirmance of justification. What remains, namely, as to unfair comment should not have arisen and, in my opinion, cannot arise unless your Lordships were of opinion that there has been a gross miscarriage of justice. The jury - on a point of fair comment, which was logically out of the case after the affirmance of justification - have given a verdict which drops away altogether on a true application of their verdict on the main struggle and issue of the case. As Lord Herschell expressed it in Jones v. Spencer (1): "I think that the hesitation of a Court to set aside the verdict of a jury is very natural, and that it is expedient that verdicts of juries, when that is the tribunal to determine the question between the parties, should not be set aside, except where one is satisfied that there has been a miscarriage, because a verdict has been found that could not reasonably have been found if the attention of the jury had been directed to the whole of the facts of the case, and to the question in issue which they had to determine."

Furthermore, I am of opinion that in this case Order XXXIX., r. 6, plainly applies to the effect that "a new trial shall not be granted on the ground of misdirection .... unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned." I really cannot affirm that such a wrong was caused. To express the opinion that the conduct which the jury affirmed was monstrous

(1) 77 L. T. 536, 538.

seems to me not a separate finding of opinion at all, but a natural consequence.

On these grounds I accordingly agree that the dissent of Lord Blanesburgh (then Younger L.J.) was sound, that the application of the verdict by the Lord Chief Justice was also sound, that that application should be affirmed and the appeal allowed.

LORD WRENBURY. My Lords, the question of birth control is a question which has long engaged, and in the last fifteen or twenty years has, I believe, increasingly engaged, the attention of many thoughtful minds. From 1913 to 1916 the National Birth Rate Commission included the investigation of this subject in its labours. In 1916 it reported to Mr. Walter Long (afterwards Lord Long of Wraxall), then President of the Local Government Board. The Commission was subsequently reconstituted, and in the year 1918 took a mass of evidence upon, amongst other things, such questions as are dealt with in the plaintiff's books. The then Bishop of Birmingham was chairman and many eminent persons of both sexes were members of the Commission. Amongst them was the plaintiff, Dr. Marie C. Stopes. The Commission made a report in 1920. From the Times newspaper of November 8 I have learned that the Birth Control Committee of this National Birth Rate Commission met this year on November 7, under the presidency of the Bishop of Winchester, when Lord Dawson of Penn and others gave evidence. I mention these facts for the purpose of emphasizing at the outset that the question of birth control is a question of grave - of very grave - importance. To parents or prospective parents it is a question of personal importance. To others, and particularly to those who work among the poor, it is of public importance. To those who have at heart the welfare of the nation it is of national importance. There are cases in which the health and happiness of the woman are impaired by too rapid successions of conception. There are cases in which the parents' means do not allow of the proper maintenance, education and advancement of more than a limited

number of children. There are cases in which the mental or bodily health of the parents forbids or ought to forbid the procreation of defective children. There are those who think that in none of these cases ought control to be exercised. There are those who think otherwise. I express of course no opinion at all as to which are right and which are wrong. But so strong are the feelings of the one side and of the other that hard language may perhaps scarcely create surprise. Whether the language oversteps the bounds and falls into the territory of libel is for a jury to decide.

In many places, and indeed throughout the country I believe, there have been established children's welfare clinics, to which mothers are invited to bring their babies to receive advice on all matters in regard to their management, such as nutrition, cleanliness, infantile maladies and the like. At such clinics the opportunity arises of helping the mothers (who are poor women) with advice, not only as to their babies but as to the question of birth control, which to many of them is a question of vital importance, but as to which they have neither the knowledge nor the means of acquiring the knowledge which more wealthy women obtain from their medical advisers. There are those who think that to extend the work of the clinics so as to include such advice to poor women is upon personal and upon public and upon national grounds right. Dr. Marie C. Stopes, the plaintiff in this action, is a lady who is of that opinion. In order to give poor working women such information as I have indicated, she opened a clinic in Marlborough Road, in the East End of London. She established and maintained it and provided there the services of a fully trained and certificated nurse, all entirely at her own expense. She also wrote certain books relating to birth control, and a very large number of them have been sold to the public. This is a very short statement of the facts as they stood at the time of the publication of the alleged libel upon which this action is brought. Upon the question whether birth control is desirable and legitimate or not I express, of course, no opinion at all. It is not material to do so. My purpose in that which precedes is to emphasize the gravity of

the matter and to indicate the nature of the subject with which I have to do.

The substance and gist of the alleged libel was that the plaintiff had exposed the poor to experiments, of which the poor, owing to their poverty, lack of learning and helplessness, were the natural victims, and had opened a birth control clinic where working women were instructed in a method of contraception described by Professor McIlroy as "the most harmful method of which I have had experience," and had carried on a monstrous campaign of birth control, thus committing a crime more serious than that for which Charles Bradlaugh was condemned to jail.

The alleged libel described the plaintiff as "a woman who is a Doctor of German Philosophy (Munich)." This was true. But she was also a Doctor of Science of London University, a Fellow of the University College of London, a Fellow of the Geological Society, a Fellow of the Royal Society of Literature of London, and a Fellow of the Linn¾an Society of London. It may be - I do not know, but it may be - that the jury thought that to describe her as "a woman who is a Doctor of German Philosophy" showed an animus against her which they did not approve.

My Lords, I leave it to others much more conversant than I am with actions for libel to deal with the question of that which is called the "rolled up plea." All that I have to say upon it is this: a libel may and generally does contain both statements of fact and statements of opinion. If the jury are properly directed by the judge and if there is evidence to support their findings they and they alone are the absolute masters of the situation. It is for the jury to say which of the statements are statements of fact and which are statements of opinion, and to say whether those which they find to be statements of fact are true and if they find the facts to be true then whether those which they find to be statements of opinion are fair comment. The pleadings ought to be in such form as to raise all those questions or all such of them as the parties desire to put in issue. The judge ought to direct the jury as to each of them.

The parties are entitled to have the findings of the jury upon each of them. In the present case, paras. 4, 5 and 7 of the defence raised all these questions and the parties were entitled to have the findings of the jury upon each one of them after proper directions from the judge in the matter. The first point, then, is to see what directions they received.

I turn to the summing up of the Lord Chief Justice to see whether he directed the jury upon all of them. I think he did. I agree that there is room for criticism of the summing up in this respect. I should have been glad to find the duty of the jury to discriminate fact and opinion more clearly stated. But I think there is enough. For instance, the Lord Chief Justice, at p. 374 of the Appendix, says this: "They say two things and they say them still; and these are the real issues in this case. They say: so far as statements of fact in what is complained of are concerned, those statements of fact are true statements. So far as regards what is expression of opinion, that expression of opinion is fair comment. Now in order that fair comment may be the issue, the matter upon which the comment is written must be a matter of public interest. And so, apart from the initial question whether these words were defamatory, and defamatory of the plaintiff, the questions which remain are, so far as statement is concerned, was the statement true? And so far as comment is concerned, was the comment fair?" Again, at p. 375: "So you have to consider first of all under this head, what are the parts of those words complained of which are really statements of fact, and having made up your mind upon that point, you proceed then to consider whether the real sting is or is not made good. Then for the rest you may think that - of course, it will be a matter entirely for you - a large part of that which is complained of in the defence is fair comment." Further, at p. 376 he speaks of fair comment as a structure built upon a foundation of truth - thus discriminating between the facts which are the foundation and the comment which is the structure built upon it, and he goes on to say: "You want the two ingredients, true statement of fact, and upon the statement of fact comment which a reasonably fair-minded man might

make, whether you agree with him or whether you profoundly disagree with him." Again, at p. 387 he says, "There are expressions of opinion hitherto, but now it becomes an argument winding up with what you will have to determine - you will probably think it is, but that, again, is a matter entirely for you - a statement of fact." And further down: "Taking the whole thing together he [the defendant] says 'I call this a monstrous campaign.' You may or may not think he is right but that is not the question. The question is: Within the wide words, the large words which I have read to you, is it such a comment as may be fairly made in the sense that it may be the honest expression of a view strongly held?" And when approaching the close of the winding up and after stating the questions which he left to the jury, he says to them, "If you think that the statements were true and the comment was fair, there will be no question of damages at all."

There is to be found in the above, I think, a sufficient direction.

In the result the Lord Chief Justice left to the jury four questions, and those four questions with the answers which the jury gave are as follows:-

It has been contended before your Lordships that the second answer was a complete affirmation of justification, and that once that answer was given there was no room for the answer which followed - namely, No. 3. I cannot so read the questions and answers. I agree that No. 2 if it stood alone might be a complete acceptance of the plea of justification, but it does not stand alone.

I ask myself first - What as matter of construction is the meaning of the words of the Lord Chief Justice as found in the questions? If the second question meant "Are the statements both of fact and of opinion true?" there was no

room for the third question. The answer to the second question would have covered everything. It cannot be that it covered everything, for the Lord Chief Justice goes on to ask: "Were they fair comment?" As matter of construction I cannot stop, so to speak, in the middle of the sentence. To construe the document I must read the whole document, and reading the whole, I can give effect to it only by saying that No. 2 means, were the words so far as you find them to be statements of fact true, and No. 3 means were the words so far as you find them to be statements of opinion fair comment. Again, reading the questions and answers together, I look to find the meaning of the jury. The observations are the same as before. Their answer to No. 2 must mean we find the statements of fact to be true, but to No. 3 we answer that the statements of opinion are not fair comment.

If this be right it remains to consider whether there was evidence upon which the jury could find as they did that the comment was not fair.

Before referring in detail to the evidence, I pause to consider what were the subjects to which the evidence was directed. They were, in substance, two - namely, first, the methods which the plaintiff recommended to prevent conception, and secondly, the steps which she took to spread knowledge of those methods and in particular the contents of the publications which she wrote and sold. The former it was contended were harmful, and were so pursued as to victimize poor and helpless people. The latter it was contended were obscene.

It was not said and could not be said that the description and discussion of the construction, functions and control of any organ of the human body is necessarily obscene. If the description and discussion were in a medical treatise it would be impossible to say it was obscene. In literature intended for the general public it may or may not be obscene. It depends upon the manner of treatment. The subject matter is not obscene, the method of dealing with the subject matter may be obscene. Whether it is obscene or not is matter of opinion, or at any rate the jury may hold it to be matter of opinion. In any case it is matter for them to decide, and by

their answer to the third question they have, I think, answered the question in the negative.

There are some parts of the human body as to which it is matter of no great moment to any man or woman whether he or she has or has not knowledge of their construction, their function, or their control. A man or a woman may go equally well through life, even if he or she knows little or nothing of the structure, functions or control of the liver, the kidneys, or the heart, or has never so much as heard of the thyroid gland. But it may well be that the same is not true of the organs of generation. They are capable of control and of abuse. As to these, knowledge of their construction, their functions and possible methods of their control may be not only legitimate but most expedient, and more particularly in the case of the woman. Those who think that it is legitimate and expedient are certainly entitled to hold that opinion and to do their best to impart the knowledge and assist the man or woman to make use of it. The whole question is as to the manner in which the communication of the knowledge and the suggested application of the knowledge is made. Is it so made as to deprave and corrupt those whose minds are open to immoral influences? If it is not, then, however plain the language may be, it is not obscene. My Lords, it is for the jury and the jury alone to answer these questions. I am not going to express, it is not my function to express, any opinion as to how they ought to be answered in this case. I am going only to look and see whether there was evidence upon which the jury could answer as they did. Was there evidence upon which twelve jurors could reasonably find that the comment in the libel was not fair, that the imputation of victimization and of obscenity was not justified?

I put in the forefront something from the evidence of three of the defendant's witnesses. The first is this: Professor Anne Louise McIlroy, a principal witness for the defendant, said this in cross-examination with reference to the plaintiff's publications.

"Q. Do you think that this is a genuine desire to help in this problem or not? - A. I think it is a misguided desire, but

I have no doubt it is a desire which I am perfectly sure is perfectly genuine.

"Q. It is a genuine desire to help? - A. Yes, but a misguided one."

And again upon a question as to marital intercourse when the woman's health is being impaired by excessive child bearing. "Q. Do not you think that is a question which is at least as important to the welfare of human people in this country as the medical side of it? - A. I think so. Q. Do you yourself think that this lady is genuinely trying to deal with that other side of it? - A. Yes. Q. Do you yourself think that she has done anything which is wicked in what she has done? - A. I think she is misguided." The second is this: The defendant, Dr. Sutherland, at p. 282, answers thus: "Q. Do you think this book is a piece of thoughtful writing - Married Love? - A. Would you tell me what you mean by thoughtful? I am going to say straight away I believe the book was written with the very best intention in the world. I am quite sure of that." The third is this: Dr. Mary Scharlieb, p. 305, had no doubt that the plaintiff was sincere. She considered that the plaintiff's work was an honest attempt but a very mistaken work, and (p. 307) she quite recognized the plaintiff's sincerity and goodness of intention. After these answers it seems to me impossible to dispute that the jury could properly find that the imputation in the libel of victimization of poor and helpless persons and of criminal action was not justified.

I turn to the evidence of the plaintiff's witnesses. She called several medical witnesses of eminence in their profession. Sir James Barr approved the plaintiff's clinic and thought it was doing an enormous amount of good. He thought the method adopted at the plaintiff's clinic was a perfectly simple method and perfectly harmless. Sir William Arbuthnot Lane said that Dr. Stopes' work came to him as a matter of intense interest. "I felt we had come across a real philanthropist at last and an intelligent one, I may say." He thought (p. 169) that Married Love would do a girl who had reached active sexual life a great deal of good. Dr. Harold Chappell (p. 173) thought that "these are matters which we

are constantly discussing, and there is a very real need for them to be discussed quite frankly and openly." Sir William Maddock Bayliss (p. 189) saw nothing in the least objectionable in any of the plaintiff's books. He thought (p. 191) that the most important thing one could do is to bring up children with a clean knowledge of the whole of the sexual relations. Dr. J. L. Hawthorn (p. 198) approved the plaintiff's books and (p. 198) found nothing at all objectionable in any part of Married Love. The Rt. Hon. G. H. Roberts (p. 249) had always appreciated the fact that the subject was one that ought to be treated with tact and delicacy, and felt that Dr. Marie Stopes and those associated with her had done so. Dr. Norman Haire (a witness called by the defendants), referring (p. 312) to a letter which he had written to the plaintiff, said that he had "expressed admiration for the splendid work which she had done." He thought that the plaintiff's books (p. 315) were "serving a very useful purpose." He says this three times. He thinks (p. 316) that it is a very admirable thing that this knowledge should be made public; that there are numbers of terrible tragedies through ignorance in this matter, and he thinks Dr. Stopes' books are excellent. But he disagrees very greatly with her book, the New Gospel to all Peoples. (This is a book called A Revelation of God uniting Physiology and the Religions of Man.) And he thinks (p. 315) that the plaintiff's books "give knowledge of sex to women who otherwise cannot get it." Dr. Agnes Forbes Shorter (again a witness called by the defendants) thinks (p. 322) that Married Love "is evidently written with a very high intention."

My Lords, the jury had before them all the evidence which I have quoted. They had the plaintiff's books before them. They were in a position to judge and it was for them to judge whether they were written too little from a medical and too much from a sexual or emotional standpoint. They had, of course, a great deal more evidence. I express no opinion at all of my own upon the question whether the comment was fair or not. That is not for me, it is for the jury and the jury alone. But I will say that in my judgment it is impossible

to say that twelve reasonable jurors could not accept and if they thought fit act upon that evidence and find that the imputation conveyed by the language of the libel as to exposing to experiment the poor, who owing to their poverty, lack of learning, and helplessness were the natural victims of experiments and as to a monstrous campaign, amounting to a crime, more serious than that for which Charles Bradlaugh was condemned to jail was not justifiable. Imputations of victimization of the helpless poor and of criminality deserving of imprisonment are not matters to be lightly regarded. They may well cut deep, and the more so in the case of a lady who is giving her time and her money to afford as she thinks (and as her opponents admit bona fide thinks) assistance to her poorer sisters. In my opinion the majority of the Court of Appeal were right in upholding the verdict in the third answer, and giving judgment for the plaintiff in accordance with the finding of the jury upon the third question left to them.

This action I have no doubt was brought not so much to recover money as to re-establish a reputation damaged by libel. As a result of the judgment of this House the plaintiff will fail to recover the damages which the jury awarded. But it remains that a jury have found that the defendant's comment in the matter was not fair, and that their finding in that respect fails to find its proper conclusion in damages by reason only of the fact that your Lordships are of opinion that after their answer to the second question was given the third question was, for the reasons which your Lordships have assigned, not open to them.

I ought to add, that if I am wrong in the view which I have expressed as to the summing up, and if the finding to the third question is not to have effect, then the plaintiff is, I think, entitled to a new trial. For in such case there will have been by reason of misdirection no proper trial of the issue of fair comment. In this view of the case, I have to take it that the learned Lord Chief Justice did not properly direct the jury to discriminate between fact and opinion and to answer this question - namely, If you find that all those which you find

to be statements of fact are true, then do you find that those which you find to be statements of opinion are fair comment? The plaintiff is entitled to an answer to that question.

In my judgment this appeal should be dismissed and the order of the Court of Appeal upholding the verdict of the jury on fair comment should be upheld. And if a majority of this House is of a contrary opinion then in my judgment there should be a new trial.

But as upon both points the majority of your Lordships are of a different opinion this appeal must be allowed, and a new trial must be refused.

LORD CARSON. My Lords, the defendants in this action pleaded that the words complained of in the alleged libel in their natural meaning were true in substance and in fact, i.e., a plea of justification. I have never heard a doubt expressed until this action that such a plea, if proved, is not an answer to any action for defamation. The plea puts upon the defendant the onus of proving not only that the facts alleged to be defamatory are true, but also that any comments in so far as they contain statements or inferences of a defamatory character are also true.

This plea therefore, whether the alleged libel consists of facts only or of comments as well as facts, is a complete answer to any action for defamation. "It is sufficient, however, if the charge on the plaintiff's conduct in the libel is substantially met and answered in the justification. It is unnecessary to repeat any word which might have been the subject of the original comment. So much must be justified as meets the sting of the charge; but if anything be contained in a charge which does not add to the sting of it, that need not be justified": Selwyn's Nisi Prius, vol. ii., 1060, 12th ed. The authorities referred to fully bear out the statement of the law as contained in this passage.

My Lords, I have said so much because I cannot agree with the view expressed by Bankes L.J. in the Court of Appeal in this case, when he says: "Under ordinary circumstances,

when justification and fair comment are pleaded, and when it is in issue whether the words complained of are defamatory, the questions for the jury are: (1.) Are the words defamatory? If yea, then (2.) are they statements of fact or expressions of opinion or partly one or partly the other? (3.) In so far as you find that they are statements of fact, are they true? (4.) In so far as they are expressions of opinion do they exceed the limits of fair criticism upon the matters of public interest?" Such questions appear to me to overlook the real nature of a plea of justification which must stand or fall if so pleaded as a complete answer to the whole of the libel complained of, and cannot be aided by a plea of fair comment, which is no longer relevant if once the plea of justification is found in favour of the defendant.

There is a further paragraph in the judgment of the learned Lord Justice which, in my opinion, is open to the same criticism. He says: "I am not able to agree with the view taken by the Lord Chief Justice that this is a case in which the rule applies that a plea of fair comment does not arise if the plea of justification is made good. The rule applies and applies only, in my opinion, when the justification affords a complete answer. There may be many cases of which the present is, in my opinion, an example, when a jury may consider that the facts are quite truly stated and yet that what they regard as expressions of opinion upon those facts are not fair." My Lords, if upon a plea of justification the jury do not find that the comments or expressions of opinion so far as they contain defamatory matter and are substantial and material parts of the libel complained of are true, their duty would be to find against the defendant on the plea of justification, which cannot be aided or supported by a finding on a plea of fair comment. In the course of the argument I asked Sir Hugh Fraser, the very experienced and able counsel for the respondent, if there was or could be a case in which a plea of justification if proved and accepted by the jury would not be a complete answer, and he very candidly replied in the negative. My Lords, an examination of the proceedings in the present case can, I think, lead to no other conclusion

than that it was fought throughout on the plea of justification. I agree with Bankes L.J. when he says: "In his final speech to the jury Mr. Hastings clearly invited the jury to treat the libel as consisting entirely of statements of fact and to concentrate their attention on the two main charges, namely, that the plaintiff was, in the language of the innuendo, taking advantage of the ignorance of the poor to subject them to experiments of a most harmful and dangerous nature and that she was guilty of a serious crime for which she should be imprisoned. If any possible doubt existed as to Mr. Hastings's attitude it is set at rest by the note of the Lord Chief Justice in which he summarises Mr. Hastings' contention as to which of the statements in the libel are statements of fact." I may add also that the suggestion of a specific question to the jury as to whether the words complained of were true was suggested by Mr. Hastings and was agreed to by counsel on behalf of the defendants, Serjeant Sullivan observing: "The other, my Lord, would be a plea of whether the libel, that is to say fact plus deduction, was true in substance and in fact."

Bankes L.J. also quotes a passage from the closing address of Serjeant Sullivan for the defendants, in which, amongst other matters, he states that "a plea of justification is a plea of justification not only of the words themselves simpliciter, but a plea of justification goes to the induction or meaning that is put upon the whole paragraph. You plead justification not only in respect of your plain statement of fact but also in respect of your inferences both of fact and opinion." As Bankes L.J. observes, "The learned counsel is here accepting, as it seems to me, Mr. Hastings' challenge to deal with the case as though the only issue was, Are the charges made by the defendants against the plaintiff true or are they not?" and he refers to the learned counsel's summing up in this plea of justification. "I most respectfully invite you to find that that statement in its broadest meaning, the whole of that paragraph, whatever meaning you may ascribe to it, does not go one inch beyond the truth in substance and in fact." When one turns to the summing up of the Lord Chief Justice

it is quite evident that he specifically dealt with and explained to the jury the "facts" as put forward in Mr. Hastings' requisition as already referred to and fully explained them and the evidence relating to them to the jury. Furthermore, after the verdict had been given and after argument upon the findings of the jury, the Lord Chief Justice stated in entering judgment for the defendants: "In this case the jury, after a protracted deliberation extending to something like four hours, have found by their verdict that the words complained of in this action, while they were defamatory of the plaintiff, were true in substance and in fact. In the course which the case took that really became the main issue. .... I have always understood that in the words which have been quoted it is a good defence to an action for libel that the words complained of were true in substance and in fact."

My Lords, I do not think that this House or any appellate tribunal can be too careful in ascertaining by an examination of the proceedings what was the course of the trial, what was the real issue fought out by the assent of the parties on both sides? More especially is that necessary in a case where a defendant has frankly and fully taken upon himself the onus of all that is involved in such a plea as that of justification in a libel action, and any appellate tribunal ought to be slow in ordering a new trial under such circumstances unless there has been some substantial misdirection or other flaw in the conduct of the trial which you can at least say may reasonably have caused a miscarriage of justice.

My Lords, in the present case it is said that by reason of the finding of the jury in the plea of fair comment, the jury indicate that they did not understand the position, and that this difficulty was brought about by some misdirection on the part of the Lord Chief Justice. In my opinion, the jury ought not to have been allowed to consider the plea of fair comment at all when once they had found the justification proved, and I think it would have been better if the Lord Chief Justice had so instructed them. I also agree that passages can be selected in the summing up which seem to show some

confusion between facts and opinions in relation to a plea of justification. But, my Lords, as the Chief Justice has pointed out and as I think a careful examination of the whole proceeding shows in the course which the case took, the main issue was were the words complained of true in substance and in fact? On that plea the charge in the libel has been "substantially met," and so much has been justified "as meets the sting of the charge," and on that ground alone I would be prepared to set aside the order of the Court of Appeal and restore the judgment of the Lord Chief Justice. But, my Lords, I should also like to add that if the answer to the plea of fair comment means that notwithstanding the finding on the plea of justification, there were comments that were unfair, I agree with Younger L.J. that there was no evidence "on which a rational verdict could be found to the effect that these remaining comments of the defendants were either unfair or dishonest."

My Lords, I cannot help thinking that some of the confusion and difficulty which has arisen in this case has been caused by reason of the form of plea which has been described before us as the rolled up plea, and the cases cited before us show that not for the first time this form of plea has given rise to doubts and difficulties. That plea No. 7 in the first defendant's statement of defence has nothing whatever to do with a plea of justification. It is not partly justification and partly fair comment, but fair comment pure and simple, no doubt in an altered form from the old one, but nevertheless fair comment only. And I desire to express my entire concurrence with the statement of the late Lord Collins when he was Master of the Rolls in the case of Digby v. Financial News, Ld. (1), which is as follows: "When a plea of justification is pleaded, it involves the justification of every injurious imputation which a jury may think is to be found in the alleged libel. This plea does not purport to be a plea of justification of the imputations, if any, contained in the libel; it is nothing of the sort, but is a plea intended to raise a totally different defence, that of fair comment. Comment, in order to be fair,

(1) [1907] 1 K. B. 502, 507.

must be based upon facts, and if a defendant cannot shew that his comments contain no misstatements of fact, he cannot prove a defence of fair comment."

For the reasons I have given, I agree with the motion proposed by the Lord Chancellor.

My Lords, but for the statements made by my noble and learned friend who has just addressed the House, I should not have thought it necessary or opportune, in considering the legal problems which arise for decision in this case, to have said anything whatever on the subject of the policy of birth control, or the merits or demerits of the plaintiff in the part she plays in furtherance of that object.

I feel bound, however, after listening to the speech of my noble friend, to say that the recital of alleged facts and views he has expressed, which seem to me and will be read by others as being in sympathy with the actions of the plaintiff or her writings or of certain evidence produced on her behalf, must not be taken as in any way representing my own views if I had thought it necessary or relevant to discuss them. I speak of course only for myself, and I notice that the Lord Chancellor and the two noble Lords who followed him have not referred to these matters, a course which I had intended to adopt but for the statements of my noble and learned friend.

Solicitors for the appellants: Charles Russell & Co.

Solicitors for the respondent: Braby & Waller.