[COURT OF APPEAL]

EGGER v. VISCOUNT CHELMSFORD AND OTHERS.

[1960 E. No. 1537.]

Libel and Slander - Privilege - Qualified - Joint publication - Defamatory letter published by secretary of unincorporated club on instructions of sub-committee members - Occasion privileged on ground of common interest - Finding by jury of express malice in five committee members but no malice in secretary and three committee members - Judgment entered and order for costs of two trials made against all defendants - Whether defence of qualified privilege attaching to individual defendant or to publication - Whether innocent publisher of joint libel on privileged occasion affected by malice of joint publisher.

The plaintiff brought an action claiming damages against the assistant secretary and 10 members of a sub-committee of a club which was an unincorporated body, for libel contained in a letter written by the secretary on the instructions of the sub-committee to a person with an interest to receive the letter. The defendants pleaded, inter alia, that the letter was written on an occasion of qualified privilege. The plaintiff by her reply alleged express malice on the part of the defendants as ousting the privilege. After a long trial the jury disagreed; on a retrial, the jury returned a verdict for the plaintiff, but found that the secretary and three of the eight surviving committee members were not actuated by malice in publishing the letter. At each trial the judge ruled that the occasion was one of qualified privilege; but at the conclusion of the retrial, the trial judge, holding that the situation was analogous to that in Smith v. Streatfeild [1913] 3 K.B. 764; 29 T.L.R. 707, entered judgment against all the defendants and ordered that they should pay the costs of both jury trials, which had been long and expensive. On appeal by the secretary and the three committee members found innocent of malice:-

Held, allowing the appeal, (1) that the non-malicious committee members were not liable to the plaintiff, for each had in relation to the joint publication an independent and individual privilege which could not be defeated by the malice of others taking part in

the joint publication. A person who without malice publishes or takes part in publishing a defamatory statement on an occasion of qualified privilege is not a tortfeasor, and cannot be held to be a joint tortfeasor, for the privilege attaches to the individual publisher and not to the publication (post, pp. 265A-D, 266E, 271G-272B).

Longdon-Griffiths v. Smith [1951] 1 K.B. 295; 66 T.L.R. (Pt. 2) 627; [1950] 2 All E.R. 662 and Meekins v. Henson [1964] 1 Q.B. 472; [1962] 3 W.L.R. 299; [1962] 1 All E.R. 899 approved.

Smith v. Streatfeild [1913] 3 K.B. 764; 29 T.L.R. 707 overruled.

Statement of the general rule based on Smith v. Streatfeild in Gatley on Libel and Slander, 5th ed. (1960), p. 587 disapproved (post, pp. 265B, 266F).

Per Lord Denning M.R. If a plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence of qualified privilege, or to cause a comment, otherwise fair, to become unfair, he must prove malice against each person whom he charges with it (post, p. 265C).

Per Davies L.J. If a publication has been held not to be a fair comment, all concerned in publishing it have published an unfair comment, and no question of individual malice or bona fides can arise. Such a case is not analogous with a case where there is a joint publication on an occasion of qualified privilege where some of the publishers are innocent of malice, for there the innocent publishers rely on their independent individual privilege (post, p. 269D).

(2) That the assistant secretary, being innocent of malice, was not liable to the plaintiff, for he had an independent and not a derivative privilege and could not be affected by the malice of his principals or any of them. Though under the settled law of respondeat superior an innocent principal is liable for the fraud or malice of his agent acting within the scope of his authority, there is no principle equivalent to respondeat inferior, and so to hold would be beyond all reason. The observations of members of the House of Lords in Adam v. Ward [1917] A.C. 309; 33 T.L.R. 277, H.L., which appear to suggest that the malice of a principal could affect an agent, were unnecessary for the decision in that case, and, as obiter dicta and erroneous, are not binding (post, pp. 265A-D,266G, 271A-C, 272C-D and F-G).

Order of Marshall J. reversed in part.

APPEAL from Marshall J. and a jury.

The plaintiff, Mrs. Valerie Egger, a judge of Alsatian dogs, issued a writ in 1960 against C. A. Binney, the assistant secretary of the Kennel Club, an unincorporated association, and against the 10 individual members of the club's show regulations committee, claiming damages for alleged libel contained in a letter dated February 18, 1960, written and published by the defendants and sent through the post to one Violet Ross, the secretary of the Alsatian German Shepherd Dog Chub of Northern Ireland. The letter was as follows: "Dear Miss Ross, The committee at a meeting held on Monday last, was unable to approve the

appointment of Mrs. V. Egger to judge Alsatians at the Alsatian German Shepherd Dog Club of Northern Ireland Championship Show, 1960. Yours sincerely, C. A. Binney, Assistant Secretary."

By her statement of claim, the plaintiff claimed that by those words in their natural and ordinary meaning the defendants meant and were understood to mean that she was not competent or qualified to judge championship Alsatian German Shepherd Dogs, although she held herself out so to be, and/or that she was otherwise unsuitable so to act, for reasons reflecting on her integrity.

The defendants, after delivery of further and better particulars, claimed by their defence, inter alia, that the words were no libel and in any event were true in substance and in fact. Further, they claimed that the words were written and published solely to the said Violet Ross who, with the plaintiff and the defendants, had a common interest in the subject-matter thereof; and that the words were written and published bona fide and without malice towards the plaintiff and under a sense of duty and in the honest belief that they were true; and that the occasion was therefore privileged.

By her re-amended reply, the plaintiff claimed that in publishing the words the defendants were actuated by express malice; and particulars of the alleged malice followed.

The action was first tried before Widgery J. and a jury on May 10, 13, 14, 15, 16 and 17, 1963. The judge ruled that the occasion of publication was privileged; but the jury were unable to agree and a retrial was ordered.

The retrial took place before Marshall J. and a jury in 1964, on February 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24 and 25. The trial judge ruled that the occasion of publication was privileged. The jury found answers to the questions left to them as follows: "(1) Are the words complained of defamatory of the plaintiff? Yes. (2) If so, were any, and, if so, who among the following, actuated by malice in coming to their decision on February 15, 1960, or communicating it to Miss Ross in the letter containing the words complained of: 1. Lord Chelmsford: Yes; 2. Mr. Issard Davies: No; 3. Colonel Gatheral: Yes; 4. Mr. McKie: Yes; 5. Mr. Pagliero: No; 6. Mr. Roberts: No; 7. Mr. Saunders: Yes; 8. Mr. Walters: Yes; 9. Mr. Binney: No. (3) If so, damages? £750."

Junior counsel for the plaintiff then asked his Lordship whether he wished to hear legal argument. Junior counsel for the defendants said: "I do not feel able to address your Lordship on costs.

Widgery J. was not asked to make an order in the previous hearing, and no order was made, and I am in the position of having to ask your Lordship that no order be made as to the costs of the previous hearing. I cannot make any remarks ..." Marshall J. intervened: "There is a further point. I may as well tell you ... that I regard this as a Streatfeild case¹ and accordingly I propose to give judgment against all the defendants on the basis of the authority of the Streatfeild case.¹" Counsel for the plaintiff asked for an order for costs and also for the costs of the first trial. His Lordship said that there would be judgment for the plaintiff against all the defendants "save Mr. Binney who, I think, cannot be regarded as a member of the committee ... though he was the publisher." Counsel said that Binney was the publisher. Marshall J. then said: "I think, as he was the publisher, I was wrong, and he must come in. Judgment, therefore, against all the defendants for £750 and the costs of this trial and the previous trial." Judgment was entered on March 24, 1964, subject to a correction to the effect that as two of the defendants on the record (H. S. Lloyd and the Earl of Northesk) had died before the hearing of the action, their names should be withdrawn from the list of the defendants liable under the judgment.

The three members of the committee, Issard Davies, Pagliero, and Roberts, and the assistant secretary, Binney, in whose favour the jury had made a finding of no malice, appealed, asking that judgment might be entered for them against the plaintiff and that she be ordered to pay their costs of the action and also the costs of the previous action. The grounds of appeal were as follows: (1) that the judge was wrong in law in holding that by reason of Smith v. Streatfeild¹ he was bound to enter judgment against those of the defendants whom the jury had found not to have been actuated by malice because the jury found the other surviving defendants to have been so actuated; (2) that Smith v. Streatfeild¹ was wrongly decided and ought to be overruled; (3) that the judge was wrong in law in holding that the situation of the appellants was analogous to that of the non-malicious defendants in Smith v. Streatfeild¹ rather than to that of the non-malicious defendants in Longdon-Griffiths v. Smith²; (4) that in any case the judge was wrong in law in holding that the situation of the assistant secretary, Binney, was analogous to that of the non-malicious

1 [1913] 3 K.B. 764; 29 T.L.R. 707.

2 [1951] 1 K.B. 295; 66 T.L.R. (Pt. 2) 627; [1950] 2 All E.R. 662.

defendants in Smith v. Streatfeild³ and in failing to hold that he, as secretary to the committee of which the other defendants were members, charged with the duty of communicating the decision of the committee to Miss Ross, had an independent privilege in respect of such communication which was unaffected by the malice of the defendants who were found to have been malicious.

By a cross-notice the plaintiff asked that the judgment of Marshall J. should be affirmed on the additional ground that, irrespective of the decision in Smith v. Streatfeild,³ the four appellants were affected by the malice of the other five defendants. Further, it stated that in the event of the appeal of the four defendants or any of them being allowed, the plaintiff would contend that judgment should be entered for such as might be successful without any order for costs against her; alternatively, that any costs which she might be ordered to pay should be ordered to be paid direct to the four defendants by the other five defendants found to be malicious, on the following grounds: (1) that all the defendants were members of the sub-committee of the Kennel Club which published the letter complained of; (2) that as neither the sub-committee nor the club itself was a legal person, it was necessary to bring an action against the members of the relevant sub-committee; (3) that all the defendants were represented by the same solicitor and counsel; (4) that in fact though not in law the action was brought against and defended by the Kennel Club itself; (5) that the costs of the defendants were not increased by the fact that the four appellant defendants were made parties to the action; and (6) that in the circumstances of this action the appeal by the four defendants was unnecessary and oppressive.

Peter Bristow Q.C. and G. E. Adeane for the appellants. The question, which is res integra in this court, is whether in the case of a joint publication on an occasion of qualified privilege, the malice of one or more of the defendants destroys the privilege of the other non-malicious defendants. The judge followed Smith v. Streatfeild³; but it is submitted that that case was wrongly decided, or alternatively that it is distinguishable as a case in which the privilege of the non-malicious printers was derived from that of the malicious defendant. In the present case each of the committee members had a duty to come to an

3 [1913] 3 K.B. 764.

independent quasi-judicial decision on the question whether the plaintiff's selection as a judge should be approved, just as do trustees, or members of the Bench of an Inn of Court considering the conduct of a member of the Bar. Each member of the committee therefore has an individual privilege and that privilege is a defence which is not affected nor destroyed by the malice of other committee members. To hold them jointly liable would mean that if, for instance, a minority of the committee voted against sending the letter and it was sent because of a majority decision actuated by malice, the innocent minority could be held liable. That cannot be right or just.

There are three possible categories in which qualified privilege is pleaded: (i) Where a principal publishes, on information given by his agent. If the agent is malicious, the principal is liable on the well-established principle of respondeat superior: Fitzsimons v. Duncan and Kemp & Co. Ltd.⁴ (ii) Where the agent in a purely ministerial capacity publishes on the order of the principal, he has no privilege of his own, and if the principal is malicious the agent is also liable. That might have been the basis on which Smith v. Streatfeild⁵ was decided; and it has stood for over 50 years, though not without being criticised. The statement of principle based on that case, however, which appears in Gatley on Libel and Slander, 5th ed. (1960), pp. 578, 587, is too wide. [Fraser on Libel and Slander, 7th ed. (1936), pp. 172-174 was also referred to.] (iii) Where the ordinary relationship of principal and agent does not arise, but each publisher has his own privilege. Here there may be two situations: (a) where there is a special relationship, such as solicitor and client or clerk to a local authority, the solicitor and the clerk each have their own individual privilege, and (b) where no agency is involved, but each individual publisher enjoys a separate privilege: Longdon-Griffiths v. Smith⁶ - a case of trustees; and Meekins v. Henson⁷ - a case of partners, where Winn J. pointed out the distinction between parallel and derivative privilege. [Crozier v. Wishart Books Ltd. and Others⁸ was also referred to.] The present case, so far as it concerns the three innocent committee members, falls into category (iii) (b), supra. [Smith v. National Meter Co. Ltd.⁹; Eglantine Inn Ltd. v. Smith¹⁰;

4 [1908] 2 I.R. 483, 507, C.A.

5 [1913] 3 K.B. 764.

6 [1951] 1 K.B. 295; 66 T.L.R. (Pt. 2) 627; [1950] 2 All E.R. 662.

7 [1964] 1 Q.B. 472, 480; [1962] 3 W.L.R. 305; [1962] 1 All E.R. 899.

8 [1936] 1 K.B. 471; 52 T.L.R. 255; [1936] 1 All E.R. 1, C.A.

9 [1945] K.B. 543; 61 T.L.R. 366; [1945] 2 All E.R. 35.

10 [1948] N.Ir. 29.

Falke v. Herald and Weekly Times¹¹; Webb v. Bloch¹²; and Dougherty v. Chandler¹³ were also referred to.]

The assistant secretary also has a separate privilege of his own. As the secretarial officer of a club which is not a legal persona, who has to deal with the decisions of sub-committees, he cannot be made jointly liable for the malice of some members when he himself has been found not guilty of malice. The submission is more difficult in his case, because of dicta in Adam v. Ward,¹⁴ a case in category (i) of respondeat superior, in which some members of the House delivered dicta unnecessary to the decision as to what the position of the secretary to the Army Council, the defendant Ward, would have been if it had been found that the Army Council was malicious: see per Lord Finlay, Lord Dunedin and Lord Atkinson.¹⁵ But as the dicta were unquestionably obiter, and as the question whether or not Sir Edward Ward might have had an independent privilege was not argued, those dicta should not bind this court. In that case the secretary only published the libel; in this case the assistant secretary wrote the letter. It would be a grave injustice if this wholly innocent assistant secretary is held to have no independent umbrella of privilege but is to be held jointly liable for the malice of some of the committee members. If there had been a finding of malice against him, the principle of respondeat superior would apply, and it would be a category (i) case; but here he is more than a mere ministerial agent. It was his duty to answer the letter addressed to the club; and in the circumstances he should be held not liable to the plaintiff.

P. Colin Duncan Q.C. and Brian Neill for the plaintiff. Though the question of law in relation to qualified privilege is of great interest to lawyers, the facts on this appeal are more important, for the plaintiff, having correctly started her action against all the committee members of an unincorporated body and being unable to select in advance those who would be found guilty of malice, has now been put in peril in regard to the costs of this appeal on a question in which she has no interest.

[LORD DENNING M.R. The court must decide the question of law whether judgment was rightly entered against these appellants. The question of costs may be considered later.]

11 1925 Victoria L.R. 56, 72.

12 1928 41 C.L.R.(Aus.) 331, 342, 359.

13 1946 46 State Rep.N.S.W. 370. 375.

14 [1917] A.C. 309; 33 T.L.R. 277, H.L.(E.).

15 [1917] A.C. 309, 320, 331, 340-341.

It should be noted that Marshall J. was told by counsel for the plaintiff in the course of the hearing and again after the jury had made their findings that there were authorities other than Smith v. Streatfeild¹⁶ which might be relevant; but the judge applied Smith v. Streatfeild¹⁶ without having had those cases cited to him. Though that decision was criticised by Uthwatt J. in Smith v. National Meter Co. Ltd.¹⁷ and by Slade J. in Longdon-Griffiths v. Smith¹⁸ and elsewhere, it has been followed far more frequently than it has been criticised; and Bankes J., in his judgment correctly stated the rule of law as it is now set out in Gatley, 5th ed. (1960), p. 587, namely, that where a document which contains defamatory matter is published on an occasion of qualified privilege and is in law a publication by two or more persons, and the court finds that one or more of the defendants is actuated by express malice, the plaintiff has an unequivocal right to recover damages against somebody; and each of the persons taking part in that joint publication is equally liable.

It has always been accepted that the privilege attaches to the occasion and not to the individual. The test in each case is whether the publication is a tortious act. The jury found that the sending of the letter in this case was a tortious act and it follows that the privilege of the occasion was destroyed by the malice of some of the publishers. Longdon-Griffiths v. Smith¹⁸ is distinguishable, for there each individual trustee had an independent right, if not a duty, to make the communication which was made; but here there was a corporate decision by the sub-committee. It was a decision which could not have been made nor communicated by any one individual committee member, and none of them had a separate interest or duty to make the communication to Miss Ross. Where there is no separate duty or interest there is no element of separate privilege; and on the jury's findings and the application of settled law, the plaintiff had a right to recover against all those who had engaged on a tortious joint adventure.

It is conceded that the expression "joint tortfeasors" used by Bankes J. in Smith v. Streatfeild¹⁹ is inept when applied in this branch of the law, for it really begs the question; but when Bankes J. spoke of the printers as joint tortfeasors with Canon Streatfeild, he used the expression correctly in the sense in which it was used later by Scrutton L.J. in The Koursk,²⁰ as meaning

16 [1913] 3 K.B. 764.

17 [1945] K.B. 543, 546.

18 [1951] 1 K.B. 295, 302 et seq.

19 [1913] 3 K.B. 764, 769.

20 [1924] P. 140, 155; 40 T.L.R. 399, C.A.

not that the printers were joint tortfeasors ab initio but that they became jointly responsible for taking part in a joint adventure which, though on an occasion of qualified privilege, was affected by malice. If the appellants are right, it will mean that the printers and publishers of matter which is pleaded as fair comment but is found to have been written by an author actuated by malice, would escape the consequences of the joint publication. That is contrary to the law as hitherto accepted: see Crozier v. Wishart Books Ltd. and Others,²¹ where the point was considered in interlocutory proceedings.

[LORD DENNING M.R. The case of fair comment may be different; but privilege may attach to the individual. If this plaintiff had sued only the assistant secretary and he had been found innocent of malice, could she succeed on the ground of the malice of committee members who were not parties to the action?]

It is conceded that in such a situation the court would be concerned only with the defendant who was before it. But in Adam v. Ward²² some of the members of the House of Lords said that if malice had been found in the Army Council it would have affected the defendant secretary. [Pearson & Son Ltd. v. Dublin Corporation²³; Brooke v. Bool, per Salter J.²⁴; Yuille v. B. & B. Fisheries (Leigh) Ltd. and Bates, per Willmer L.J.²⁵; and London Association for Protection of Trade v. Greenlands Ltd.²⁶ were also referred to.] Too much sympathy should not be felt for the non-malicious defendants, for the court can apportion the damages and costs as between the defendants, and that provides a sufficient remedy.

The privilege of a solicitor is wholly distinguishable from the privilege under consideration here. It does not arise in respect of the subject-matter of the communication, as in the case of a secretary or typist, but from the very special relationship of solicitor and client; it is almost an absolute privilege. [Crawford v. Dunlop²⁷ was referred to.]

Neill following. The assistant secretary as agent of the committee had no independent privilege, for it was the principal's business on which the agent was engaged whereas it is the relation

21 [1936] 1 K.B. 471, 475, C.A.

22 [1917] A.C. 309, 320, 331, 340-341.

23 [1907] A.C. 351, H.L.

24 [1928] 2 K.B. 578, 585.

25 (1958) 2 Lloyd's Rep. 596, 619, C.A.

26 [1916] 2 A.C. 15; 32 T.L.R. 281, H.L.

27 1900 S.C. (Fraser), 5th Ser., Vol. 2, 987.

between the principal and a third party which gives the occasion its privilege: see Stockley v. Hornidge and Carter.²⁸ If there is no independent privilege in the secretary, he stands in the shoes of the principal, with the same rights and the same liabilities, so that when the protection of the principal goes by reason of malice the protection for the agent goes also.

[HARMAN L.J. But if only part of the principal is malicious how is the agent affected?]

The agent will be dragged down by that part of the principal which is malicious even though the malicious part is a minority of the whole. That result has to be faced on the law as it stands.

Bristow Q.C. in reply. The three committee members here were not participators in a concerted action in any sense of that phrase as used in The Koursk.²⁹ The proper analogy would be that of a court composed of more than one member which has to reach a determination on a privileged occasion. If it is correct that each of these committee members was acting quasi-judicially, each had to come to his own decision as to what should be done about the application, and each had his own separate privilege.

As to the secretary, if indeed he has no separate but only a derivative privilege and the dicta in Adam v. Ward³⁰ are to be followed, the court will have to decide from whom that derivative privilege is derived - whether from the five committee members who were malicious or from the three who were innocent. It would make nonsense of the law if there were eight umbrellas, five of which let in the rain and three which kept it out, and the court had to decide under which the secretary might shelter. He has his own privilege and the court should so decide, despite the obiter dicta in Adam v. Ward.³⁰

LORD DENNING M.R. Mrs. Egger is a judge of Alsatian dogs. Her name is on a list of judges kept by the Kennel Club. In February, 1960, Miss Ross, the secretary of a dog club in Northern Ireland, was arranging a dog show. She wrote to the Kennel Club asking that the name of Mrs. Egger might be approved as a judge of Alsatians at the show. The application was put before the shows regulations committee of the Kennel Club. They decided not to approve of Mrs. Egger's appointment, and the assistant secretary was told to write to Miss Ross and tell her so. The letter was

28 (1837) 8 C. & P. 11.

29 [1924] P. 140, 155.

30 [1917] A.C. 309.

in these terms: "Dear Miss Ross, The committee at a meeting held on Monday last, was unable to approve the appointment of Mrs. V. Egger to judge Alsatians at the Alsatian German Shepherd Dog Club of Northern Ireland Championship Show, 1960. Yours sincerely, C. A. Binney, Assistant Secretary." Mrs. Egger thereupon brought an action for libel against the 10 members of the show regulations committee and the assistant secretary, Binney. She said that the words reflected on her competence and integrity. The defendants said that the words were not defamatory. They also pleaded that the occasion was privileged. The plaintiff replied, alleging express malice.

There were two trials of some length. The judges at each trial ruled that the occasion was privileged. At the first trial the jury disagreed. At the second trial the jury found that the words were defamatory of Mrs. Egger. They found that five of the committee members were actuated by malice, but that three of the members were not. (Two of the members had died before the hearing.) They found that the assistant secretary, Binney, was not actuated by malice. They assessed the damages at £750. The judge gave judgment for £750, not only against the five members of the committee who were actuated by malice, but also against the three who were not and also against the assistant secretary who was not. He said he did so on the authority of Smith v. Streatfeild.¹ The four who were found innocent of malice appeal to this court.

The appeal raises a point of much importance in the law of libel. Smith v. Streatfeild¹ has stood for over 50 years. It has formed the basis of several important statements. So much so that in Gatley on Libel and Slander, 5th ed. (1960), at p. 587 the general rule is said to be that "where two or more persons are sued in respect of a joint libel, proof that one of the defendants was actuated by malice will defeat any plea of privilege on the part of the other or others." I do not believe there is any such general rule: and I will go through the cases to prove it.

I will at the outset take the cases which are said to support Gatley's general rule. The first, of course, is Smith v. Streatfeild itself. Smith was a diocesan surveyor for the diocese of Oxford. He had made a survey of Canon Streatfeild's rectory. The canon was dissatisfied with this survey. In consequence he thought that Smith ought not to be re-appointed diocesan surveyor. So the canon determined to write to the rural deans who

1 [1913] 3 K.B. 764; 29 T.L.R. 707.

were the appointing body. He wrote a pamphlet setting out his views and employed the Robert Spenall Press to print it for him. They printed it and sent the prints back to the canon. He then circulated them to the rural deans. Smith brought an action for libel against the canon and the printers. The occasion was plainly privileged. The jury found that the canon was actuated by malice, but the printers were not. They assessed the damages at £50. The canon was clearly liable to pay those damages. But the question was whether the printers were also liable. Bankes J., in a reserved judgment, held that the printers were jointly liable with the canon and he gave judgment against both of them for £50 damages.

I find myself quite unable to agree with this decision. It is quite contrary to justice that the printers, who were entirely innocent, should have been held liable jointly with the canon. Bankes J. gave two reasons. The first was this²: "The finding of the jury establishes the fact that the defendant Canon Streatfeild was a tortfeasor as regards this publication. It necessarily follows, in my opinion, that the printers are joint tortfeasors with him." All I would say is that the conclusion does not follow from the premises. It was not true to say that the printers were joint tortfeasors unless it was first found that they were tortfeasors: and that was not found. There was nothing in the facts found which made the printers tortfeasors at all. They did no wrong of any kind.

The second reason given by Bankes J. was this³: "Qualified privilege in one sense may be said to be the privilege of the individual, in that it arises out of the circumstances in which the individual is placed, but as a defence it is attached to the publication. Where therefore, as here, the plaintiff is complaining of a joint publication, if the defence of privilege as to that publication fails because of the proof of express malice, it fails, in my opinion, altogether, ..." All I would say is that the defence of qualified privilege is a defence for the individual who is sued, and not a defence for the publication. It is quite erroneous to say that it is attached to the publication as distinct from the individual.

The second case is Adam v. Ward.⁴ I have studied the record of this case in the House of Lords. Major Adam, M.P., made

2 [1913] 3 K.B. 764, 769.

3 Ibid. 770.

4 [1917] A.C. 309; 33 T.L.R. 277, H.L.

an attack in the House of Commons on General Scobell. General Scobell brought the matter before the Army Council. The Army Council issued through the Press a letter which said that the charge made by Major Adam was without foundation; and thus imputed to Major Adam misconduct in making it. The letter was drafted by the Chief of the Imperial General Staff in his own handwriting. Sir Edward Ward was not present at the meeting of the Army Council. It was typed out in the form of a communique and sent out of the room to Sir Edward Ward for publication. Sir Edward Ward did not do anything to the document beyond signing it at the foot. He did not compose it, correct it, or control the form of it. He just issued it. Major Adam then brought a libel action, not against the Army Council (as he might have done, as he knew all their names), but against Sir Edward Ward, the secretary. It was tried by Darling J. He ruled that there was no evidence of malice to go to the jury, but he also ruled that the publication was not on a privileged occasion. Once he ruled that it was not privileged, Sir Edward Ward had no defence. The jury awarded £2,000 damages against Sir Edward Ward. In the Court of Appeal and the House of Lords it was held that the occasion was privileged, and that there was no evidence of malice either on the part of the Army Council or of Sir Edward Ward. So the action failed. It was therefore quite unnecessary to consider what the position would have been if the Army Council had been actuated by malice whilst Sir Edward was not. The Court of Appeal declined to consider it. But some members of the House of Lords did so: and they clearly thought that Sir Edward Ward would be liable in damages to Major Adam, even though he was entirely innocent. Thus Lord Finlay said⁵: "If ... there was express malice," [on the part of the Army Council] "their secretary would be liable, although he personally had no ill-will towards the plaintiff." Lord Dunedin said⁶: "I fail to see how, ... any evidence as to malice on his" [Sir Edward Ward's] "part could be relevant. ... Their" [the Army Council's] "malice, in my view, would be relevant." Lord Atkinson said⁷: "His" [Sir Edward Ward's] "own personal feelings or privileges are, I think, not involved in the case at all." Those observations were clearly obiter dicta. They were made without hearing argument on the point. Smith v. Streatfeild⁸ was cited to their Lordships in order to suggest that Sir

5 [1917] A.C. 309, 320.

6 Ibid. 331.

7 Ibid. 340-341.

8 [1913] 3 K.B. 764.

Edward Ward stood in the same position as his principals, the Army Council, but their Lordships did not hear the argument to the contrary, as the case went off on the other point.⁹ In these circumstances I do not feel we need pay such great respect to the observations as we otherwise should. I can myself see no reason in law or in justice why Sir Edward Ward should be made liable in damages. If the members of the Army Council had been guilty of malice, they should be held liable in damages for libel, but not their secretary, who acted quite innocently.

Speaking generally, I cannot believe that an agent should be made answerable for the malice of his principal. Take the case of a solicitor who is instructed to write a letter. He is an agent for the client. The client, let us say, is being sued by a firm of architects for their fees. He says that their chief clerk was negligent and incompetent. The solicitor sets this out in a letter to the architects. The client is actuated by malice, but the solicitor is not. Surely the solicitor is entitled to the protection of qualified privilege. He is not infected by the malice of his client. Nor is the typist who takes down the letter and dispatches it.

It is very different when it is sought to make an innocent principal answerable for the malice of his agent. Then you come into a different realm altogether. You come into the law of agency. An innocent principal is liable for the fraud, or, I would add, the malice of his agent, acting within the scope of his authority, whether the agent is acting for his principal's benefit or not: see Lloyd v. Grace, Smith & Co.¹⁰ Two of the cases referred to by Gatley fall into this category. One of them is Fitzsimons v. Duncan and Kemp & Co. Ltd.¹¹ Kemps were a firm of mercantile inquiry agents. One of their customers wanted to know the standing of a grocer, Fitzsimons. The manager of Kemps got a report from their local correspondent named Duncan which was very adverse to Fitzsimons. The manager of Kemps then sent to their customer a condensed form of the report, saying that Fitzsimons should be allowed no credit. Fitzsimons brought an action for libel on this condensed report sent to the customer. The jury found that the local correspondent, Duncan, was actuated by malice, but that the manager was not. The courts in Ireland held that the occasion was privileged, but that the malice of Duncan defeated the privilege for Kemps as well as for

9 [1917] A.C. 309, 316.

10 [1912] A.C. 716; 28 T.L.R. 547, H.L.

11 (1908) 2 Ir.R. 483, 507, C.A.

Duncan himself. That is a plain case where the principal was liable for the malice of his agent on the principle respondeat superior. The same can be said of the next case: Webb v. Bloch.¹² A committee of wheat growers in Victoria wanted to issue a circular to purchasers of wheat. They employed Bloch, a solicitor, to draw it up for them. The circular was critical of Webb, who was the leading spirit of a committee of wheat growers in South Australia. Webb brought an action for libel against Bloch, the solicitor, and the members of the committee. It was found that the circular distorted the facts and that one of the committee and the solicitor were actuated by malice, but that two other members of the committee were not. Those two did not know what was in the circular. It was held by the High Court of Australia that all the members of the committee were liable, including the two who were innocent. Smith v. Streatfeild¹³ was cited in support of this liability. But it is again a plain case where the principal was liable for the malice of the agent on the principle respondeat superior. I must, however, draw attention to the fact that in both these cases the courts relied on the wide principle stated by Lord Loreburn L.C. in S. Pearson & Son Ltd. v. Dublin Corporation¹⁴: "The principal and the agent are one, and it does not signify which of them made the incriminated statement or which of them possessed the guilty knowledge": and by Lord Halsbury in the same case, who said¹⁵: "it matters not in respect of principal and agent (who represent but one person) which of them possesses the guilty knowledge or which of them makes the incriminating statement." It must be remembered that those observations were made in a case where a fraudulent agent made a false statement, knowing it would be passed on innocently by the principal to a third person. In such a case the principal is clearly liable for the fraud of his agent. So also he is liable in like circumstances for the malice of his agent, as in Fitzsimons v. Duncan and Kemp & Co. Ltd.¹⁶ But those observations should be carried no further. They certainly do not warrant any suggestion that an innocent agent is liable for the fraud, or, I would add, the malice of his principal: see Armstrong v. Strain.¹⁷

I would now turn to the cases which go to refute Gatley's

12 (1928) 41 C.L.R. 331.

13 [1913] 3 K.B. 764.

14 [1907] A.C. 351, 354, H.L.

15 [1907] A.C. 351, 359.

16 [1908] 2 Ir.R. 483.

17 [1952] 1 K.B. 232, 233; [1952] 1 T.L.R. 82; [1952] 1 All E.R. 139, C.A.

rule. The first group are those where two or more persons are concerned together in a publication which is defamatory of the plaintiff, but the occasion is not privileged. A typical case is author, printer and publisher. The author is actuated by malice, the others are not. The plaintiff may sue them separately or jointly. If he sues the author separately, he is entitled to get aggravated damages against the author on account of his malice. If he sues the printer and publisher separately, without the author, the damages against them are not to be aggravated by the malice of the author: see Robertson v. Wylde¹⁸ and Crozier v. Wishart Books and Western Printing Services Ltd.¹⁹ As Pollock C.B. said in Clark v. Newsam²⁰: "... it would be very unjust to make the malignant motive of one party a ground of aggravation of damage against the other party, who was altogether free from any improper motive. In such case the plaintiff ought to select the party against whom he means to get aggravated damages." If the plaintiff sues all three of them jointly, then by a settled rule of law dating back to 1611, there can be only one judgment and one assessment of damages, even though one of them is malicious and the others are not: see Sir John Heydon's case.²¹ But I think that the jury should be directed not to give anything in the nature of aggravated damages in a verdict which will affect the one who was innocent of malice. In short, the innocent parties to a joint publication ought not to be affected by the malice of the malicious one.

The other cases are those where you have a group of persons, such as trustees or partners, who entrust one of themselves or their secretary with the writing of a letter. The occasion is privileged. One of the group is actuated by malice. The others are not. In such cases it has been held that each innocent member of the group is entitled to rely on the defence of qualified privilege, without being infected by the malice of the others. It was so held in the case of trustees by Slade J. in Longdon-Griffiths v. Smith,²² and in the case of partners by Winn J. in Meekins v. Henson.²³ I entirely agree with those decisions. Applying the like principle in this case, it means that the three members of the committee who were innocent of malice are entitled to the protection of qualified privilege and are not liable.

18 (1838) 2 Mood. & Rob. 101.

19 [1936] 1 K.B. 471; 52 T.L.R. 255; [1936] 1 All E.R. 1, C.A.

20 (1847) 1 Exch. 131, 140.

21 (1612) 11 Co.Rep. 5a.

22 [1951] 1 .K.B. 295; 66 T.L.R. (Pt. 2) 627; [1950] a All E.R. 662.

23 [1964] 1 Q.B. 472; [1962] 3 W.L.R. 299, 305; [1962] 1 All E.R. 899.

The only difficulty is the case of the assistant secretary, Binney. If the matter were free from authority I should have thought it plain that he was not liable. If the three members of the committee, who were innocent of malice, are to go free, surely the innocent secretary should go free too. During the course of the argument I put this to Mr. Colin Duncan: suppose the plaintiff had sued Binney alone, as she might well have done, as he was the man who signed the letter. Binney pleads that the occasion was privileged. She replies express malice. Surely she can only defeat the privilege by proof of express malice on the part of him, Binney, the one defendant she has sued. She could not set up against him the malice of the committee members, none of whom is party to the action. All the more so, she could not set up the malice of only five out of 10 of them. Indeed, if the malice of one is to be treated as the malice of all, she could set up the malice of one only and hold all the rest liable, including the secretary. That cannot be right.

I cannot help thinking that the root of all the trouble is the tacit assumption that if one of the persons concerned in a joint publication is a tortfeasor, then all are joint tortfeasors. They must therefore stand or fall together. So much so that the defence of one is the defence of all: and the malice of one is the malice of all. I think this assumption rests on a fallacy. In point of law, no tortfeasors can truly be described solely as joint tortfeasors. They are always several tortfeasors as well. In any jointtort, the party injured has his choice of whom to sue. He can sue all of them together or any one or more of them separately. This has been the law for centuries. It is well stated in Serjeant Williams' celebrated notes to Saunders' Reports (1845 ed.) of Cabell v. Vaughan²⁴: "If several persons jointly commit a tort,the plaintiff has his election to sue all or any number of the parties; because a tort is in its nature the separate act of each individual." Therein lies the gist of the matter. Even in a joint tort, the tort is the separate act of each individual. Each is severally answerable for it: and, being severally answerable, each is severally entitled to his own defence. If he is himself innocent of malice, he is entitled to the benefit of it. He is not to be dragged down with the guilty. No one is by our English law to be pronounced a wrongdoer, or be made liable to be made to pay damages for a wrong, unless he himself has done wrong; or his agent or servant has done wrong and he is vicariously responsible

24 (1669) 1 Saund. 291 f-g.

for it. Save in the cases where the principle respondeat superior applies, the law does not impute wrongdoing to a man who is in fact innocent.

My conclusion is that Smith v. Streatfeild²⁵ was wrongly decided and should be overruled: that the obiter dicta on this point of their Lordships in Adam v. Ward²⁶ were erroneous: and that the general rule stated by Gatley does not exist. It is a mistake to suppose that, on a joint publication, the malice of one defendant infects his co-defendant. Each defendant is answerable severally, as well as jointly, for the joint publication: and each is entitled to his several defence, whether he be sued jointly or separately from the others. If the plaintiff seeks to rely on malice to aggravate damages, or to rebut a defence of qualified privilege, or to cause a comment, otherwise fair, to become unfair, then he must prove malice against each person whom he charges with it. defendant is only affected by express malice if he himself was actuated by it: or if his servant or agent concerned in the publication was actuated by malice in the course of his employment. We have come after several years to find that the law is as Lord Porter's Committee recommended it should be.

In my judgment, therefore, the three members of the committee and the secretary were entitled to rely on the defence of qualified privilege. There was no malice on the part of any of them such as to defeat the privilege. I would, therefore, allow the appeal.

HARMAN L.J. The letter which the jury in this case found to contain matter defamatory to the plaintiff emanated from an unincorporated association known as the Kennel Club. This body stands in relation to the dog world much in the position of the Jockey Club in the world of horse racing, or the Law Society in that of law. In particular it regulates the affairs of the dog showing world, and an outside organisation, wishing to promote a dog show which will be recognised by the Kennel Club, must appoint, as a judge of the breeds of dogs shown, a person approved by the Kennel Club. Accordingly the persons promoting a dog show in the North of Ireland in the year 1960 applied to the club for approval of the plaintiff as a qualified judge. This was a matter delegated by the governing body of the club to its shows regulations committee, a committee having executive powers, which in the ordinary course of their exercise disapproved of the plaintiff's appointment. The plaintiff being aggrieved sued for

25 [1913] 3 K.B. 764.

26 [1917] A.C. 309.

libel; but as you cannot sue an unincorporated body by its name, you must sue representatives. She might have sued the treasurer or the president or the general secretary as representing the club. If these persons had defended the action with the approval of the club, they would, of course, have been indemnified by the club against any damages or costs incurred in the course of the defence. The plaintiff here did not take that course, but sued all the members of the shows regulations committee. Nevertheless she sued them as representing the club and if, as I suppose, they defended the action with the club's approval, they are entitled to a like indemnity. The question on this appeal is, therefore, seen to be largely academic. It is unthinkable that, with a body of this sort behind the defendants, it matters to the plaintiff whether she gets judgment against some or all of them. Similarly the four defendant-appellants had nothing to fear in their pockets, being entitled to an indemnity from the club. It was said by Mr. Bristow that they brought the appeal in defence of their reputations; but, with all respect, that plea cannot stand, for the jury has absolved them of malice and therefore their reputations are untouched, the occasion having been privileged, because it was their duty to come to a conclusion on the matter referred to them.

Subject to this, I am of opinion that the appeal succeeds. It seems to me that each member of the committee had severally the privilege which his duty imported and that Mr. Duncan's proposition is insupportable. It was that where there is a document published containing defamatory matter by more than one person and the court holds that there is a qualified privilege, then if one of those responsible is actuated by malice, all of them are liable. This proposition seems to have the support of Gatley on Libel and Slander (1960) (5th ed., p. 587, para. 1071), but no real authority for it was cited to us, and it seems to me so unreasonable that I feel bound to reject it.

This proposition seems to have the support of Gatley on Libel committee is different. The jury acquitted him of malice, but it is said that because some of his principals are malicious, he is liable, having no privilege of his own. I can well understand that the principal must be responsible for the malice of his agent, but the converse seems to me quite beyond reason and to involve all sorts of untoward consequences. It is in fact a doctrine of respondeat inferior. If and in so far as this result finds support in the dicta in Adam v. Ward²⁷ of Lord Finlay and Lord Dunedin

27 [1917] A.C. 309, 320, 331.

it seems clear to me that there was no argument on the point and the dicta are not binding on us. I would be for overruling Smith v. Streatfeild,²⁸ as my Lord proposes.

I would, therefore, allow the appeal by discharging the appellants from the order. This will leave the remaining defendants still liable. As to costs, the appellants incurred no separate costs below because they joined with their co-defendants. There should, therefore, be no order below for costs against them and none in their favour. They should, however, in my view have the costs of this appeal which the respondent might have avoided by agreeing to discharge them from the order.

DAVIES L.J. Although the jury found that the four appellants, Davies, Pagliero and Roberts, three of the members, and Binney, the secretary, of the shows regulations committee of the Kennel Club, were not actuated by malice in publishing or taking part in publishing the libel, the judge, with little or no hesitation, gave judgment against them, as he did against the other five members of the committee against whom malice had been found. He considered that he was bound to do so by the decision in Smith v. Streatfeild.²⁸ As a result, these four appellants, though acquitted of malice, are, subject to any question of contribution or to any subvention from the Kennel Club, each liable for the damages assessed by the jury and for the costs of two long trials.

Mr. Bristow, for the appellants, submits that the decision of the judge was wrong. First, he submits that Smith v. Streatfeild²⁸ was wrongly decided; and, second, he submits that that authority does not, in any event, cover the present case.

Smith v. Streatfeild²⁸ is really the basis of the view of the law which has been taken as established for many years and is expressed in Gatley on Libel and Slander, (5th ed.), p. 587, as follows: "1071. The general rule. Where two or more persons are sued in respect of a joint libel, proof that one of the defendants was actuated by malice will defeat any plea of privilege on the part of the other or others."

In Smith v. Streatfeild,²⁸ as has been stated, the author of a defamatory pamphlet published on an occasion of qualified privilege was actuated by malice. The author was therefore liable. But Bankes J. held that the printers, who were found by the jury not to have been actuated by malice, were also liable. He based his judgment on two grounds. He said, first, that the author and the printers were joint tortfeasors. But to say that is, as was

28 [1913] 3 K.B. 764.

pointed out by Slade J. in Longdon-Griffiths v. Smith,²⁹ to beg the question. A person who publishes or takes part in publishing a defamatory statement without malice on an occasion of qualified privilege is not a tortfeasor at all. So, in my judgment, Bankes J. was in error in approaching the question whether the printer was affected by the author's malice from the point of view that the printer was a joint tortfeasor. For unless he was affected by that malice, he was not a tortfeasor.

The second ground of the decision of Bankes J. was this³⁰: Qualified privilege," he said, "is a defence only to the extent that it throws on the plaintiff the burden of proving express malice. Directly the plaintiff succeeds in doing this the defence vanishes, and it becomes immaterial that the publication was on a privileged occasion. Qualified privilege in one sense may be said to be the privilege of the individual, in that it arises out of the circumstances in which the individual is placed, but as a defence it is attached to the publication. Where therefore, as here, the plaintiff is complaining of a joint publication, if the defence of privilege as to that publication fails because of the proof of express malice, it fails, in my opinion, altogether, and the plaintiff establishes his right to succeed in respect of that particular publication."

It is this approach which has given rise to the generally accepted view of the law. In cases of qualified privilege, it is commonly said, the privilege, if not defeated by express malice on the part of the person who is entitled to the privilege, covers ancillary publishers such as clerks, stenographers, typists, printers, etc. But if malice on the part of the person entitled to the privilege is established, then the defence otherwise open to such ancillary publishers fails also. The cloak of privilege, it is said, covers all concerned in the publication; but once malice destroys the cloak, all are unprotected.

But, with the greatest respect to this generally accepted view and to the reasoning of Bankes J., one wonders why this should be so. When Bankes J. says that "qualified privilege is a defence only to the extent that it throws on the plaintiff the burden of proving express malice," one asks: "Malice on the part of whom?" The simple answer would seem to be: "Malice on the part of the particular defendant against whom the plaintiff is claiming damages rather than malice on the part of the person entitled to the privilege. And it is indeed difficult to see why in

29 [1951] 1 K.B. 295, 302.

30 [1913] 3 K.B. 764, 770.

principle a plaintiff should be entitled to recover damages against an innocent non-malicious ancillary participant in the publication merely because the person entitled to the privilege has destroyed his own defence by malice. This sort of consideration would apply not only to people like printers but also to the harmless, necessary typist and the like.

That a master or principal should be affected by the malice of his servant or agent is well understandable in accordance with ordinary principles of law (see Fitzsimons v. Duncan and Kemp & Co. Ltd.³¹. But that a servant or agent should be rendered liable by the malice of his principal or master is more surprising.

Mr. Colin Duncan, for the plaintiff, when in the course of the argument general considerations of this kind were put to him, pointed out that it would be a surprising thing if, in a given case, a defence of fair comment could be open to the printers and publishers despite the fact that the comment had been held to be unfair by reason of the malice of the author. But that is no true analogy. If a publication has been held not to be a fair comment, then all concerned in publishing it have published an unfair comment and no question of individual malice or bona fides can arise.

Strong reliance was placed by the plaintiff, in support of her general proposition, on the observations of some of their Lordships in Adam v. Ward.³² That was an odd case. The alleged libel was the report of an inquiry by the Army Council published at the direction of the Council by the Council's secretary, who was the only defendant. The occasion was one of qualified privilege and it was held that there was no evidence of malice on the part of the Council or the defendant secretary. In the House of Lords counsel for the defendant were called on only on the question of excess of publication or excess of privilege. The House of Lords decided against the plaintiff on that question. Therefore, in the absence of malice, the plaintiff must inevitably fail. But some of their Lordships made observations which the present plaintiff prays in aid.

Lord Finlay L.C. said³³: "The question was really not one of personal malice on the part of the defendant. He was the agent and servant of the Army Council, and must stand or fall with them. If the letter was published on a privileged occasion as regards the Army Council and without malice on their part, their secretary, through whom the communication was made by

31 (1908) 2 Ir.R. 483.

32 [1917] A.C. 309.

33 Ibid. 320.

them, has the benefit of the privilege which attached to the Council itself. If, on the other hand, the occasion had not been privileged, or there was express malice, their secretary would be liable, although he personally had no ill will toward the plaintiff."

Lord Dunedin said³⁴: "For my own part I fail to see how, if it was once shown that Sir Edward Ward was merely obeying orders when he signed the statement drawn up by the Army Council and sent it for publication, and was relying, as he was entitled to do, on the privilege which attached to the action of his superior and principal, the Army Council, any evidence as to malice on his part could be relevant. It is not necessary, however, to decide that question. It is only necessary to add that there is not a shred of evidence of malice on the part of the Army Council. Their malice, in my view, would be relevant. But as it does not exist it is unnecessary to consider that question either."

Lord Atkinson said³⁵: "He" [the defendant] "was the mere agent of the Army Council, bound to obey their orders or resign his post - the mere instrument through whose hands the libel passed for publication. His own personal feelings or privileges are, I think, not involved in the case at all. He had nothing whatever at all to do with the composition of the libel, or the approval of its contents. In the mere routine of the work of the office he signed his name to it and passed it on for publication in the way and over the area usual in such cases. To suppose that it was his duty to attempt to dissuade his principals from publishing the libel, to criticise their language, or, save at their request, to alter it is, in my view, quite absurd. It is no doubt true that one cannot defend himself for publishing a libel simply by saying that another person whom he was bound to obey ordered him to publish it; but it is equally true that when an agent, in obedience to the command of his principal, merely does the mechanical act of publishing the libel handed to him complete the privilege of the principal becomes, as it were, his privilege, and if the principal has caused the communication to be made to protect the interest or discharge the duty which would have made the occasion privileged if he had published the libel with his own hand, the agent can equally rely on the publication having been made on a privileged occasion. For this purpose he

34 [1917] A.C. 309, 331.

35 Ibid. 340, 341.

stands, in my view, in the shoes of his principal, has the same rights and the same liabilities."

These are, of course, weighty observations. But in view of the fact that the only matter in issue in that case was that of excess of privilege, they were entirely obiter. And, with the greatest respect, it is very difficult to accept Lord Dunedin's statement that evidence of malice on the part of the defendant in that case would be irrelevant or Lord Atkinson's statement that the defendant's own personal feelings or privileges were not involved in the case at all. For, in my judgment, if the plaintiff in that case had been able to prove express malice on the part of the defendant, the plaintiff would have been entitled to recover, despite the absence of malice on the part of the members of the Army Council. However that may be, it is quite plain that those observations were unnecessary to the decision of that case and are not binding on this court.

The case of Webb v. Bloch³⁶ in the High Court of Australia, though, of course, not binding on this court, might seem to present more difficulty. But it would appear that on this question Sir Adrian Knox C.J.³⁷ merely accepted the principle of Smith v. Streatfeild,³⁸ and that the judgment of Isaacs J. was based on the proposition that the defendants were liable for the malice of their agents, a proposition with which no one would quarrel.

The only other authority to which I think it necessary to refer is Longdon-Griffiths v. Smith,³⁹ already cited. In that case four trustees of a friendly society were sued in respect of a libel contained in a report published by them on an occasion of qualified privilege about the general secretary of the society. One of the trustees was actuated by malice; the other three were not. Slade J., a judge particularly learned in the law of defamation, as we all know, held that all four trustees were entitled to an individual and separate privilege and that, therefore, the three who were not actuated by malice were entitled to judgment.

I agree with that judgment, the reasoning on which it is based, and its criticisms of Smith v. Streatfeild.⁴⁰ And it seems to me that it covers the present case so far as concerns the three members of the committee. Each of them, as such a member, had an independent and individual right and duty to cause the secretary to communicate to the inquirer the decision arrived at by the committee as to the appointment of the plaintiff

36 (1928) 41 C.L.R. 331.

37 Ibid. 359.

38 [1913] 3 K.B. 764.

39 [1951] 1 K.B. 295.

40 [1913] 3 K.B. 764.

as a championship judge. And since malice was not proved against them, they are protected by privilege. It seems to me to be quite intolerable that they should be held liable on account of their colleagues' malice. If this were the law, then a minority who had in a given case actually voted against the publication of a libel could be held liable on account of the malice of the majority. Indeed, Mr. Duncan's proposition goes much further. He submits that if a body of, say, 100 members publish a libel on an occasion of qualified privilege, the 99 non-malicious members can be held liable because of the malice of one. I do not believe that this is, or ought to be, the law.

The case of Binney, the secretary, may be thought to be a little different. It is said on behalf of the plaintiff that he, at any rate, had no individual or independent privilege. His privilege, it is said, was derivative. And, therefore, since five of the members were actuated by malice, he, though innocent, is liable. It so happens in the present case that the majority of the committee were actuated by malice. But Mr. Duncan does not shrink from the contention that the secretary would be liable even if the majority of the committee were shown to be innocent of malice and only a small or insignificant minority were malicious.

I find this to be contrary to common sense, which ought, if possible, even in the law of defamation, ceteris paribus, to prevail. But it is not, in my judgment, necessary for the purposes of this case to pronounce on this point or to decide whether in Smith v. Streatfeild⁴⁰ the printers on the facts of that case were rightly held liable, though I do not dissent from the views expressed on this matter by my Lords.

In my view the true and proper approach to the present case is that the secretary here did have an independent and individual privilege. He was the official mouthpiece of a body exercising quasi-judicial functions. As such he had himself the right and duty to communicate to the person who had made the application or inquiry, the result of the deliberations of the committee. If he himself is free from malice, he is free from liability. An analogy, perhaps not complete, might be found in the Sub-Treasurer of an Inn of Court. He has a duty to publish the result of a disciplinary inquiry by the Benchers. It would, to my mind, be absurd to hold that if, say, one Bencher among a great many were actuated by malice in coming to his decision

40 [1913] 3 K.B. 764.

or in authorising the publication of the result of the inquiry, the innocent Sub-Treasurer would be liable in damages.

In the result, therefore, I would hold that each one of these four appellants was entitled to an independent and individual privilege and that, as the jury have absolved them from malice, each is entitled to judgment.

Solicitors: Hewitt, Woollacott & Chown; Hickson (Oswald), Collier & Co.

M. M. H.