Adam v Ward
|House of Lords
Defamation - Libel - Privileged Occasion - Excess of Privilege.
Upon a plea that a libel was published on a privileged occasion it is for the judge to determine whether the occasion is privileged and whether the privilege has been exceeded.
Where a libel contains defamatory matter not referable to the duty or interest which gives rise to the privileged occasion, such matter is outside the occasion and is not protected; and such excess of privilege in part of a defamatory publication may also be evidence of malice as to the whole of it. Excessive language in regard to a matter within the privileged occasion is material only as evidence of malice, and, semble, in determining whether such language is evidence of malice, it will not be subjected to strict scrutiny.
A public official who, acting under the direction of his principals, signs and publishes a libel takes the benefit of the privilege of his principals and is liable for their malice; and, semble, evidence of malice on his part is irrelevant.
The plaintiff, who was formerly an officer in a cavalry regiment and was subsequently elected a member of Parliament, in a speech in the House of Commons, falsely charged the General commanding the brigade of which his late regiment formed part with sending confidential reports to Headquarters on officers under his command, containing wilful and deliberate misstatements. The General having referred the matter to the Army Council, the defendant, as secretary to the Council and by their direction, wrote a letter to the General, vindicating him against the charge made by the plaintiff and containing defamatory statements about the plaintiff, and sent it to the Press for publication. The letter was widely published in the British and Colonial Press. In an action for libel by the plaintiff against the defendant, the defendant pleaded that the letter was published on a privileged occasion:—
Held: (1.) That the occasion was privileged and that there was no evidence of malice on the part of either the Council or the defendant; (2.) that, having regard to the circumstances under which the plaintiff's charge was made, the publication of the libel was not unreasonably wide; (3.) (Earl Loreburn doubting but not dissenting) that in the special circumstances of the case the defamatory statements were strictly relevant to the vindication of the General, and that the whole of the letter was protected.
The following statement is taken from the judgment of the Lord Chancellor:—
“The facts, so far as they are material, lie in very short compass.
“Major Adam, the plaintiff and appellant, was an officer in the 5th Lancers, in 1906, stationed at Aldershot. The commanding officer of his regiment was Colonel Graham, who in the autumn of 1906 made a confidential report with regard to Major Adam. This report was submitted to Major-General Scobell, and was by him transmitted, together with notes of his own upon it, to General Sir John French, who was General Officer Commanding-in-Chief at Aldershot. This report, with the notes upon it, is in the evidence called the ‘combined report.’ It was not shown to Major Adam before being sent in, as it ought to have been by the King's Regulations, but it was shown to him some weeks later — about December 6, 1906. On November 3, 1906, Sir John French sent in a confidential report of his own with regard to Major Adam. Neither of these reports was produced at the trial, as the Secretary of State stated that it was contrary to the public interest that they should be put in evidence.
“A letter dated December 1, 1906, was sent from the Army Council to Sir John French, stating, with reference to a letter of his of November 3, reporting the unsuitability of Major Adam as a cavalry leader in the field, that after full consideration of the circumstances of the case it had been decided that he should be called upon to forward an application to retire from the Service, failing which it would be necessary to submit for His Majesty's approval his removal from the Army, and that Sir John French was requested to communicate this decision to Major Adam. Major Adam wrote begging for a reconsideration of this decision, or, failing that, for the longest possible grace before sending in his papers, in order that he might get something to do, and in the result, owing to the good offices of Major-General Scobell, Major Adam was given a post in the office of the Chief of the General Staff. He remained at this post until January, 1910. On October 18, 1907, it was announced that he and four other officers were to be placed on half-pay, and on November 30 of the same year a communiqué appeared stating that this action was not due to any cause detrimental to the character of these officers, and that, though they were not considered suitable to retain their positions as officers in the 5th Lancers, their services could be, and in three cases were being, utilized in other appointments, and that the regiment was not inefficient to take the field.
“In October, 1909, Major Adam asked that the circumstances under which he was placed on half-pay should be reconsidered with a view to his reinstatement on full pay, but he was informed by a letter of November 3 that his case had been carefully considered and that the Army Council saw no reason to reopen the question.
“In January, 1910, Major Adam was returned as member of the House of Commons for Woolwich, and vacated his staff appointment.
“On June 27, 1910, he made a speech in the House of Commons in which he referred to the case of Captain Bryce-Wilson, one of the five officers who had been placed on half-pay, and read out in the House the following statement: ‘That Major-General H. J. Scobell, Royal Irish Lancers, did render to superior authority a confidential report or confidential reports on an officer or officers under his command, which report or reports contained wilful and deliberate misstatements of fact, thereby deceiving those in authority to whom the report or reports were rendered, and causing injustice to be done to one of the regiments under his command.’
“Major Adam then went on to say, according to the report in ‘Hansard,’ which was in evidence: ‘Major-General Scobell is on his way home at the present time from South Africa. He arrives in England at the end of this week, and I hope when he sees the report of this in the paper, as I intend he shall do, he will appreciate the meaning of the words, “wilful and deliberate misstatement of facts.” I have tried to make it clear, and I hope he will turn up that paragraph in the King's Regulations which compels an officer in a case like this to refer the matter to his superior authority, the superior authority in this case being the Army Council. I hope sincerely that the Army Council will see that justice is done to Captain Wilson and that penalties are meted out to those officers who deserve it.’”
In reference to this speech the Lord Chancellor said: “This speech must have conveyed to every one who heard it or read the report the impression that Major-General Scobell was charged with conduct unworthy of an officer and a gentleman within the meaning of the King's Regulations. It is impossible to suppose that Major Adam did not intend to convey this impression. At the trial, however, he stated that he did not impute such unworthy conduct to Major-General Scobell, and that he said what he did merely in order that Major-General Scobell might demand an inquiry to clear himself, in the course of which Major Adam believed information might be obtained with regard to the attack upon him which he believed to be contained in the combined report.
“I abstain from comment upon Major Adam's conduct in making, for such an indirect purpose, an unfounded attack upon General Scobell, who had rendered Major Adam great service at the time of his removal.”
His Lordship then continued: “Major-General Scobell brought the matter before the Army Council, who, after investigating it, issued through the Press the letter which is complained of as a libel upon Major Adam, and which forms the subject of this action. It was addressed to Major-General Scobell, and is as follows:—
“In reply to your letter of July 8th, 1910, asking that an enquiry should be instituted in regard to a statement made by Major W. A. Adam, M.P., in the House of Commons on June 27th to the effect that while in the command of the 1st Cavalry Brigade you rendered confidential reports on certain officers which reports contained wilful and deliberate misstatements of facts, I am commanded by the Army Council to inform you that a thorough investigation has been made of the reports made by you at that time on certain officers of the 5th Lancers, who were afterwards removed from the regiment, and to whom it is believed that Major Adam's statement bore reference. Major Adam is himself one of these officers. The Council also thought it proper to address a letter to Major Adam on the 23rd ultimo, inquiring whether he desired to forward for their consideration any statement in amplification or substantiation of his charge against you. On the 29th idem a reply was received from Major Adam to the effect that he had written to the Secretary of State for War on the subject, but his letter of the same...
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