COURT OF APPEAL

ADAMS v. SUNDAY PICTORIAL NEWSPAPERS (1920)

LD. AND CHAMPION.

[1950 A. 144.]

Defamation - Alleged libel - Defence of fair comment - Plaintiff's reply of "express malice" - Interrogatories as to defendant's sources of information or grounds of belief - P. S. C., Ord. 31, r. 1A.

In an action claiming damages for libel, the defendants pleaded fair comment made bona fide on a matter of public interest, making use of what is commonly called the "rolled-up" plea. By his reply, the plaintiff pleaded that the words complained of were printed and published with express malice.

He applied for leave to administer to the defendants the following four interrogatories:-

"(a) Before you published the words complained of, or caused them to be published, had the plaintiff to your knowledge sent any letter or letters to any and what anti-British newspaper or newspapers and/or politician or politicians in the United States of America? If yea, identify the said letter or letters.

(b) Before you published the words complained of, or caused

them to be published, did you know of any and what anti-British newspaper or newspapers, politician or politicians having on any and what date or dates in any and what way or ways used any and what utterances of the plaintiff for propaganda against Marshall Aid?

(c) Before you published the words complained of, or caused them to be published, had the plaintiff to your knowledge used on any and what date or dates in any and what way or ways the plight of the unemployed for an attack on Britain?

(d) What steps and/or precautions did you take and what inquiries did you make before publishing, the words complained of, or causing, them to be published, to ascertain whether the expressions of opinion contained therein were founded on facts?"

By R. S. C., Ord. 31, r. 1A: "In an action for libel or slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant's sources of information or grounds of belief shall be allowed".

The plaintiff contended that this new rule did not prohibit the administering of these interrogatories, since the plaintiff sought to ascertain by them the actual information and knowledge of the defendants - not the sources of their information, and, the actual belief of the defendants not the grounds of their belief; and that the answers to the interrogatories would be vital to his case on the issue of express malice and to disposing fairly of the cause or matter.

Held, that in each case the administering, of the interrogatory was prohibited by the terms of the new rule - R. S. C., Ord. 31, r. 1A.

APPEAL from Parker, J., in chambers.

The plaintiff, by his statement of claim, stated that he was at all material times the honorary secretary of the Bolton Unemployed Workers' Committee and that the first-named defendants, Sunday Pictorial Newspapers (1920) Ld., falsely and maliciously printed and published and the second-named defendant, Ralph Champion, falsely and maliciously wrote and caused to be printed and published of the plaintiff and of him in the way of his office the following words:-

"A LITTLE MAN WHO DOES A GREAT DEAL OF HARM

By RALPH CHAMPION"

"His name is William Adams, and he claims to be the spokesman of the unemployed in Bolton, Lancashire's prosperous cotton and engineering town. He is not very important there, and I would not bother you with his activities if he confined them to Lancashire. But Mr. Adams boasts that he sends many letters to anti-British newspapers and politicians in the United States, 'exposing the plight of the unemployed', and says that they use his outpourings for propaganda against

Marshall Aid. I saw a sample of his writings when he sent a "letter to the Pictorial. In it he accused Britain of being 'hypocritical' in demanding increased production from workers, and said that the Ministry of Labour had done nothing to procure work for several hundred Bolton unemployed. William Adams is small, dark, and suffers from a chest complaint. He was discharged from the R.A.M.C. in 1943 on medical grounds and since then, he says, he has done less than twelve months' work, usually as a temporary night watchman.

Helping the Other Chaps. - But he told me: 'I get a disability pension. So I am not so worried about finding a job for myself. My main concern is to help other chaps'. 'The other chaps' are the 800 members of Bolton Unemployed Workers' Committee, of which he is hon. secretary. Only half these men are out of work. The remaining 400 are numbered among Bolton's 93,000 employed workers. Make no mistake. If it were true, as Mr. Adams suggests, that hundreds of capable men are unable to find jobs in Bolton, then he would be fully justified in the accusations he makes. But what are the facts? The manager of Bolton Labour Exchange, Mr. Barrett, declared when I saw him: 'If two dozen fit men who wanted to work walked into this office now, I could find them jobs immediately'. Who are these people, then, whom Mr. Adams so vociferously represents? Most of them are good, honest people who would very much like to achieve the dignity of a regular job at a regular wage. But they have one common disadvantage from an employer's point of view: They are not physically fit. I went with Mr. Adams through case-papers of many of his members, and later I met some of the men. Only one was 100 per cent. physically fit. All the others had some disability either poor eyesight, weak hearts, paralysed arms, chest complaints or a variety of neuroses. And hardly a soul among them had not taken at least temporary jobs in recent months.

Adams agreed with me that these unfortunates would be unsuitable for heavy work. But he could see nothing wrong in using their plight for his damaging attack on Britain Adams also claims that local employers are ignoring the provisions of the Disabled Persons (Employment) Act, which makes it compulsory for big firms to employ a quota of three per cent. disabled, and that the local council engages fit men to do jobs the unfit could do. On this point, the labour exchange says: 'The employers here are playing the game to the full, and the council employs more than its quota'.

Well, there is the evidence. What is the verdict? Bolton's disabled will be better served by their own political parties to

the trade unions and the genuine social workers than by a man like William Adams, who boasts that he helps the enemies of Britain - and so often misrepresents his facts".

The plaintiff pleaded that by these words the defendants meant and were understood to mean that the plaintiff was an unpatriotic man who deliberately misrepresented to anti-British newspapers and politicians in the United States of America the number and plight of unemployed persons in Great Britain, well knowing that he might thereby cause Marshall Aid to cease or to diminish and that this would bring about widespread distress and increase unemployment in this country, and that the plaintiff was therefore utterly unfit to continue in his office or to associate with right-thinking people.

By their defence, the defendants admitted that they printed and published the words of the alleged libel; but they did not admit that the words complained of meant or were understood to mean what was set out in the innuendo. They stated that the words complained of were true in substance and effect, and, alternatively, so far as these words were statements 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 bona fide and without malice upon the facts, which were matters of public interest. By his reply the plaintiff pleaded that the words complained of were printed and published with express malice.

The plaintiff applied for leave to administer eight interrogatories of which the first five were as follows:-

1. Before you published the words complained of, or caused them to be published, had the plaintiff to your knowledge sent any letter or letters to any and what anti-British newspaper or newspapers and/or politician or politicians in the United States of America? If yea, identify the said letter or letters.

2. Before you published the words complained of, or caused them to be published, did you know of any and what anti-British newspaper or newspapers, politician or politicians having on any and what date or dates in any and what way or ways used any and what utterances of the plaintiff for propaganda against Marshall Aid?

3. Before you published the words complained of, or caused them to be published, had the plaintiff to your knowledge used on any and what date or dates in any and what way or ways the plight of the unemployed for an attack on Britain?

4. When you published the words complained of or caused them to be published did you believe that the said words were true?

5. What steps and/or precautions did you take and what inquiries did you make before publishing the words complained of, or causing them to be published, to ascertain whether the expressions of opinion contained therein were founded on facts?

Master Horridge and, on appeal, Parker, J., disallowed interrogatories Nos. 1, 2, 3 and 5, but leave was given to administer interrogatory No. 4. Leave to appeal having been granted by the Court of Appeal, the plaintiff appealed.

Cartwright Sharp, K. C., and Travers for the plaintiff. The four interrogatories which have been disallowed would have been allowed before the advent of the new rule(1), R. S. C., Ord. 31, r. 1A: Elliott v. Garrett(2); and Plymouth Mutual Co-operative and Industrial Society, Ld. v. Traders Publishing Association, Ld.(3).

[SOMERVELL, L.J. The first two interrogatories, having regard to the nature of the words in the article - "Mr. Adams boasts" - might have been disallowed without reference to the new rule.]

The pleading in the innuendo "an unpatriotic man who deliberately misrepresented", should have prevented that. The precedents for these interrogatories will be found in Gatley on Libel and Slander (3rd ed.), at p. 845. There has been no decision yet reported on the effect of R. S. C., Ord. 31, r. 1A. And the only question is whether the new rule affects these interrogatories in this case. The plaintiff interrogated the defendants on their actual information and knowledge - not on their sources of information or grounds of belief. Expressio unius est exclusio alterius. In the case of each of the first three interrogatories the vital word was "know" or "knowledge". Just as interrogatory No. 4, which was allowed, inquired as to actual belief, so the first three interrogatories inquired as to the actual information of the defendants. The fifth interrogatory goes to the belief of the defendants in the truth of the information. These interrogatories are relevant on the issue of express malice which the plaintiff pleaded by his reply. If the answers to them had been "No", they would have been vital to the plaintiff's case, to disposing fairly of the cause or matter, and for saving costs: see R. S. C., Ord. 31, r. 2.

Milmo for the defendants was not called on.

SOMERVELL, L.J. It is admitted that if any one of these four interrogatories fell within the scope of R. S. C., Ord. 31, r. 1A, it would be rightly disallowed. In my view, having regard to the

(1) By R. S. C., Ord. 31, r. 1A (S.I. 1949. No. 761 (L.7): "In an action for libel or slander where the defendant pleads that the words or matters complained of are fair comment on a matter of public interest or were published on a privileged occasion, no interrogatories as to the defendant's sources of information or grounds of belief shall be allowed".

(2) [1902] 1 K. B. 870.

(3) [1906] 1 K. B. 403.

nature of the words used in the article, the judge would have been entitled to have disallowed interrogatories Nos. 1 and 2 without reference to the new rule. Counsel's answer to that was based on the innuendo pleaded, which put a special meaning on the words complained of. Whether by such an innuendo you can extend the scope of discovery is a matter which does not fall to be decided at the moment. On that view, I think both interrogatories fall within Ord. 31, r. 1A, since, in reality, they are interrogatories with regard to the defendant's sources of information.

Again, with regard to interrogatory No. 3 I think that the judge could have disallowed that on ordinary principles, but, assuming that it was admissible on the alleged libel and on these pleadings apart from the new rule, then I think that it falls within the new rule. That interrogatory seems to me to be based on this view of the article, that the writer is saying that the plaintiff used the plight of the unemployed for an attack on Britain, and the interrogatory seems to be plainly asking the defendants for either the sources of their information or the grounds of their belief.

Interrogatory No. 5 also is prohibited by the rule. To answer it properly the defendants must state what steps they took. Suppose that the author had written letters asking questions: he would have to set out the persons to whom he had written and all the questions which he had asked, and it would fall within the territory of what the rule says: a defendant must not be interrogated upon the sources of his information.

Counsel for the plaintiff pointed out that the issue of express malice was raised here by the reply. If a defendant answered "No: I did not take any steps", that would or might assist the plaintiff in showing malice; but that is of no assistance to the court in deciding whether the interrogatory comes within the class of interrogatory prohibited by the rule, since that would still be so in the case of an interrogatory which is undoubtedly within the scope of the rule. If the interrogatory were: "what were your sources of information?" and the answer were: "I had none", that answer would assist the plaintiff; but such an interrogatory, it is plain, is prohibited by the rule.

DENNING, L.J. I agree. At one time it was common practice for interrogatories to be allowed in the form set out in Gatley on Libel (3rd ed.), at pp. 845, 846. Those interrogatories used to be allowed, when there was a defence of fair comment, in order to establish malice, but they never did any good; at any rate, in the course of some years' experience I never found them of any use. They were simply a nuisance and ran up costs.

The truth is that the burden on the defendant who pleads

fair comment is already heavy enough. If he proves that the facts were true and that the comments, objectively considered, were fair, that is, if they were fair when considered without regard to the state of mind of the writer, I should not have thought that the plaintiff had much to complain about; nevertheless it has been held that the plaintiff can still succeed if he can prove that the comments, subjectively considered, were unfair because the writer was actuated by malice. As to this, I would say that if the plaintiff has any evidence for alleging malice, all well and good, let him call the evidence at the trial; but if he has no evidence, or insufficient evidence, I do not see why the court should assist him by allowing him to cross-examine the writer about it before the trial; for that is what these interrogatories amount to. The new rule clearly means that interrogatories such as these are no longer to be allowed; and disallowed they must be.

It was said, quite rightly, that the rule does not in express terms disallow interrogatories as to belief, and for that reason the master and the judge did allow interrogatory No. 4 as to whether the defendant believed that the words were true. But I doubt very much whether such an interrogatory helps at all. It might properly be disallowed because Ord. 31, r. 2, says: "Leave shall be given as to such only of the interrogatories as shall be considered necessary either for disposing fairly of the cause or matter or for saving costs". It seems to me that since the new rule, all these common-form interrogatories are gone. This appeal is, in effect, an attempt to re-establish them. I agree that it should be dismissed.

Solicitors: Robinson and Bradley; Godden, Holme & Co.

C. G. M.