Broadway Approvals Ltd v Odhams Press Ltd (No. 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE RUSSELL |
| Judgment Date | 26 March 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J0326-2 |
| Date | 26 March 1965 |
| Court | Court of Appeal |
[1965] EWCA Civ J0326-2
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Lawton and a Jury — Middlesex)
Lord Justice Sellers
Lord Justice Davies and
Lord Justice Russell
Mr. J.T. MOLONY, Q:C. and Mr. HUGH DAVIDSON (instructed by Messrs. Simmons & Simmons") appeared' on behalf of the Appellants (First and Second Defendants).
Mr., DESMOND ACKNER. Q.C. and for. DAVID HIRST (instructed by Messrs. Oswald Hickson, Collier & Co.") appeared on behalf of the Respondents (Plaintiffs).
In the issue of the Sunday newspaper, "The people", published on Sunday 25th November, 1962, there appeared an article the subject-matter of this defamation action which was tried before Mr. Justice Law ton and a jury in May, 1964.
It arose in this way. A Mr. and Mrs. Wragg and their son Stephen, who was eleven in 1962, were living in Chapel-en-le-Frith, Derbyshire. Stephen was interested in stamp collecting and having seen an advertisement inserted by the plaintiffs, Broadway Approvals Limited, in a boys' paper called "The Buster" he replied to it and asked for the is Od. packet of 114 different stamps which the advertisement offered. With the is Od. packet came another packet of stamps on approval said to be worth 28s.6d. but the whole could be purchased for 25s.Od. Stephen had not asked for any stamps on approval and was surprised to receive them.
Mrs. Wragg learnt of the more costly stamps which had been sent to Stephen and disapproved strongly of the plaintiffs' conduct in sending them. The plaintiffs sent to Stephen some standard form notices which they called reminders. The plaintiffs' practice was to send three reminders but Mrs. Wragg recalled receiving two only. The first reminder was called "a Friendly Reminder". It said "We sent you a selection of stamps on approval… Please make returns on this shipment in the next few days… These 'approvals' are sent for 14 days only so we ask that you take care of this account promptly".
Then there was "a second Friendly Reminder", which added the words "at your request we sent you a selection of stamps on approval… We must insist that you make returns on this shipment in the next few days".
The last was headed "Final Notice… We have written you twice but have not received payment for our shipment or had the stamps back. These stamps were sent to you in good faith, at your request, for 14 days only. We must insist that you make settlement immediately".Sir. and Mrs. Wragg and Stephen deliberately ignored the two notices they received on the ground that Stephen had not asked for any stamps to be sent on approval and then Stephen received, in accordance also with the plaintiffs' practice, a common form solicitor's letter addressed to Master Stephen Wragg which insisted on the return of the stamps or a remittance for 28s.6d. within two weeks from the date of the letter, 7th March, 1962.
As the Wraggs felt very critical of the plaintiffs' conduct Mrs. Wragg wrote to "The People" about it. Someone from the "People's" office in Manchester interviewed Mr. and Mrs. Wragg and Stephen and made a report on the interview, and Mr. Ive of the London office saw Mr. Santo at his office in Dulwich and learnt that he was the Managing Director of Broadway Approvals Limited who carried on a very substantial mail order business in postage stamps. Mr. Ive also made a report or submitted an article to "The people's" office.
The advertisement in the children's paper "The Buster" was headed "World's biggest shilling" and towards the end had these words; "Pill your album have swopping material for months I Regular 5/9 value for 1/- to introduce our Bargain Approvals. Send 1/- today. Ask for lot RF 13. Please tell your parents you are writing".
Mrs. Wragg had taken the view that as Stephen had not asked for approvals to be sent when he sent his shilling the plaintiffs should not have sent the stamps to Stephen without his parents' permission.
"The People" accompanies its title at the top of its frontpage with the words "Frank, fearless, free" and "The paper that looks ahead", which presumably expresses its policy. The complaint raised by Mrs. Wragg was a matter of public interest and "as accepted to be so by learned counsel for the plaintiffs. "The People" clearly so regarded it and an article was prepared which appeared on the lower half of page 11 immediately below an article about a woman's life of a scandalous and sordid nature.
The article now complained of was headed "What a way to run a business scaring kids with solicitors' letters. Stamp it out". The pun was perhaps irresistible to the person responsible for the heading.
The article was sued upon as defamatory of both the plaintiff company and Mr. Santo its Managing Director, and it was alleged by paragraph 5 of the Statement of Claim that the words in their natural and ordinary meaning "bore the inference that the first plaintiff under the direction of the second plaintiff as Managing Director were guilty of discreditable and improper business conduct in their dealings with children". The defendants sought to justify the alleged defamatory meaning.
The jury found that the article was defamatory and that the plea of justification failed and there is no appeal from these findings. The jury also made findings as follows:
If no (that is, if no justification) does the article consist partly of allegations of fact and partly of expression of opinion? Answer — Yes.
If yes, could a fair-minded man in good faith have held the opinion expressed having regard to such of the facts referred to in the article as are proved? Answer — Yes.
If yes, have the plaintiffs proved that in publishing the article the defendants acted with malice? Answer — Yes.
It is understandable and not inconsistent that the jury could conclude that the evidence exonerated the two plaintiffs from any discreditable or improper business conduct but could also think that any fair-minded man could criticise what they did and could hold the views expressed.
The appellants have relied strongly on the finding of fair comment in their favour. The respondents have objected to the form of the question, as they did at the trial, and to the answer of the jury. These contentions have to be considered in the light of the finding that the defendants in publishing the article acted with malice. It is convenient to deal with the issue of malice first.
The appellants have submitted that there was no evidence of malice proper to be left to the jury and that the jury should not have been asked the fifth question on that ground and because it was irrelevant after question 4 had been answered. They further submitted that the jury had received inadequate directions and in particular that in respect of several of the allegations of malice relied on by the plaintiffs they were of such a character and so involved that they required very clear direction by the learned judge as to whether or to what extent such allegations were supported by the evidence and, to the extent that they were proved, were capable in fact or in law of constituting malice.
No submission that there was no evidence to go to the jury or that question 5 was irrelevant was made before the learned judge either before he summed up or after the jury's verdict "before judgment was entered. This omission is no doubt prejudicial to the appellants' submission before us but it does not preclude them from raising the point: Banbury v. Bank of Montreal (1918 Appeal Cases page 626).
The malice pleaded in the Reply was that the defendants did not honestly believe what they wrote to be true; published the words with the deliberate intention of injuring the plaintiffs in their business; and were insincere in their attack on the plaintiffs' advertising and their general methods of business because similar advertisements had previously been published by the defendant company for payment, and the defendant company had prior to publishing the advertisements sought and obtained from the plaintiff company an undertaking in the standard form of undertaking required at the time by the defendants. This undertaking related to the goods fulfilling the description or being identical with the sample, if any, and incidental requirements. It had been entered into as far back as February, 1956. Reliance was placed on a letter of 18th March, 1963, canvassing advertising material for "The People" and another of the 14th December, 1962, from Odhams Pressadvertising department canvassing advertising from the plaintiffs in the magazine "Girl".
By paragraph 4 of the Reply the plaintiffs alleged that the defendants deliberately suppressed in the libel a variety of matters numbered 1 to 7 and by amendment 12 to 15. Sub-paragraphs 8 to 11 are of a different character and require special consideration. No greater effort could have been made by the pleader or counsel as advocate to derive malice from a fleeting article prepared am! published in a routine way arising out of a complaint of a reader, a routine investigation and an article criticising the method of business of the plaintiffs of whom the editorial, department had never previously heard and with regard to whom there was apparently no other interest than to uphold the criticism of Mrs. Wragg and give it some publicity as news.
The facts about the advertising undertaking and the request for advertisement material by another department of the defendants, Odhams Press, and the conversation between Mr. Castle, the plaintiffs' advertising agent, and Mr. Seeny, a representative of Odhams Press, years before 1962, accepted most favourably for the plaintiffs, do not in my view amount to any evidence of malice. The advertising was a separate...
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Nirumalan K Pillay and Others v A Balakrishnan and Others
...law that a refusal to apologise per se cannot constitute evidence of express malice: Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 1 WLR 805 at pp 814, 824H; Horrocks v Lowe [1975] AC 135 at p 152. Counsel for the appellants, while accepting that this was clearly the law, argued t......
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Nirumalan K Pillay and Others v A Balakrishnan and Others
...even though the defendant persists in a plea of justification which he fails to establish. See Broadway Approvals Ltd v Odhams Press Ltd [1965] 1 WLR 805 at pp 814 and 824. What the present plaintiffs` case on this allegation means is that any defendant who defends the action as regards som......
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Arnold Mballe Sube v News Group Newspapers Ltd
...the existence of such a principle. But it has long been axiomatic in this context (as it is in the pleading of fraud): see Broadway Approvals v Odhams Press [1965] 1 WLR 805, Webster v British Gas Services Ltd [2003] EWHC 1188 (QB) [30]. Malicious falsehood 69 This claim was first introduce......
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Introduction
...105 D.L.R. (4th) 37 (B.C.C.A.) at 38: As Russell L.J., as he then was, remarked in Broadway Approvals Ltd. v. Odhams Press Ltd., [1965] 2 All E.R. 523 at 540, the law of libel has characteristics of complexity and subtlety. These characteristics, when analyzed, are not only logical but also......