Broome v Cassell & Company Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Chancellor,Lord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Wilberforce,Lord Diplock,Lord Kilbrandon
Judgment Date23 Feb 1972
Judgment citation (vLex)[1972] UKHL J0223-1

[1972] UKHL J0223-1

House of Lords

Lord Chancellor

Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Wilberforce

Lord Diplock

Lord Kilbrandon

Cassell & Company Limited
and
Broome and Another

Upon Report from the Appellate Committee to whom was referred the Cause Cassell and Company Limited against Broome and another, that the Committee had heard Counsel as well on Monday the 29th and Tuesday the 30th, days of November last, as on Wednesday the 1st, Thursday the 2d, Monday the 6th, Tuesday the 7th, Wednesday the 8th, Thursday the 9th, Monday the 13th, Tuesday the 14th, Wednesday the 15th, Thursday the 16th and Monday the 20th, days of December last, upon the Petition and Appeal of Cassell and Company Limited, whose registered office is situate at 35, Red Lion Square, London, W.C.1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 4th of March 1971, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the First Respondent John Egerton Broome lodged in answer to the said Appeal, the Second Respondent David Irving not having lodged a Case in answer thereto, though ordered so to do; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 4th day of March 1971 complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the First Respondent one-half of the taxed Costs incurred by him in the Court of Appeal and also one-half of the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the First Respondent the Costs incurred by him in respect of the Appellants' Petition to amend the Draft Judgment: And it is further Ordered, That the sum of £25,000 paid into Court by the Appellants by way of exemplary damages be paid out of Court to the First Respondent, together with accrued interest thereon:

And it is further Ordered, That of the sum of £22,000 paid into Court by the Appellants in respect of Costs (a) the sum of £21,470·30 being the First Respondent's taxed Costs of the trial of the action before the Honourable Mr. Justice Lawton also be paid out of Court to the First Respondent together with accrued interest on the said sum of £21,470·30, and (b) the sum of £529·70 being the balance of the said sum of £22,000, be paid out of Court to the Appellants together with accrued interest thereon: And it is further Ordered, That of the sum of £7,000 paid into Court by the Appellants in respect of Costs (a) the sum of £913·19 being one-half of the First Respondent's taxed Costs of the Appellants' Appeal to the Court of Appeal referred to in the said Order of 4th March 1971, also be paid out of Court to the First Respondent, together with accrued interest on the said sum of £913·19, and (b) the sum of £1086·81 being the balance of the said sum of £7,000 after deducting £5,000 already paid out of Court to the Appellants, be paid out of Court to the Appellants together with accrued interest thereon:

And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Lord Chancellor

My Lords,

1

NATURE OF THE PROCEEDINGS

2

This appeal arises out of two consolidated actions for libel on the publication of a book. The first action was in respect of the 60 proof copies of the book, the second in respect of the principal or hard back edition of the book. We were told that there are separate proceedings still pending in respect of a paper back edition, published under licence by separate publishers. This paper back edition was mentioned at all stages in the proceedings as being potentially relevant to the question of damages. The House is not otherwise concerned with it.

3

The plaintiff in the action (the first Respondent to this appeal) is a retired Captain in the Royal Navy of unblemished reputation, who, at the time of the matters referred to in the book, held the rank of Commander, and occupied the responsible position of Officer Commanding the escorts in the ill-fated convoy P.Q.I7. He held active command throughout the war, and ended his wartime naval career with his present rank of Captain in command of the battleship Ramillies. The subject matter of the book, and its title, was "The destruction of Convoy PQ17" which, as is well known, was one of the great naval disasters of the war, in which all but 11 out of over 35 merchant vessels were sunk on their way to the Soviet Union and about 153 merchant seamen killed by enemy action and a vast quantity of war material lost.

4

The defendants in the action were respectively the author of the book, David Irving, who is the second Respondent in the appeal, and was not represented before us, and the publishers of the book, Cassell & Co. Ltd., who are the Appellants.

5

THE RESULT OF THE TRIAL

6

The trial of the action took, we were told, 17 days before Lawton J. and a jury. In the result, on the 17th February, 1970, the jury found a verdict for the plaintiff and awarded against both defendants (1) the sum of £1,000 in respect of publication of the proof copies of the book, Counsel for the plaintiff having waived any claim to exemplary damages on the proof copies, (2) £14,000 described as "compensatory damages" in respect of the hard back edition, and, (3) in respect of the hard back edition a further sum of £25,000, described as "by way of exemplary damages". Judgment was entered for the sum of £40,000 against both defendants. The present appeal relates solely to the above sum awarded "by way of exemplary damages" of £25,000.

7

So far as relevant to this appeal, the entire proceedings before Lawton J. were conducted by all the counsel concerned and summed up by the judge to the jury on the basis of the remarks of Lord Devlin on pages 1220-1233 of the report of ( Rookes v. Barnard [1964] A.C. 1129), and of the direction following Lord Devlin's remarks by Widgery J. in Manson v. Associated Newspapers Ltd. [1965] 1 W.L.R. 1038. This was not surprising since all the other members of the House of Lords had expressly concurred in Lord Devlin's opinion on this point, though without adding reasons of their own, and the opinion in Rookes v. Barnard which was strictly an intimidation case, though obviously intended to apply generally, had been expressly applied to defamation proceedings by the Court of Appeal in McCarey v. Associated Newspapers Ltd. [1965] 2 Q.B. 86, by Pearson, Willmer and Diplock L.J.J.; in Broadway Approvals Ltd. v. Odhams Press Ltd. [1965] 1 W.L.R. 805, by Sellers, Davies and Russell L.J.J.; in Fielding v. Variety Incorporated [1967] 2 Q.B. 841, by Lord Denning, M.R. and Harman and Salmon L.J.J.; and in Mafo v. Adams [1970] 1 Q.B. 548, a case of deceit and other causes of action, the principles enunciated in Rookes v. Barnard were accepted as applicable where the evidence justified it by Sachs and Widgery L.J.J. and Plowman, J.

8

Except for two important passages and one minor passage of which complaint is made, and to which I will come later, Lawton J's direction to the jury was unexceptionable as an exposition of the law as it has been declared in the House of Lords by an unanimous House in Rookes v. Barnard and applied by the Master of the Rolls and ten Lords Justices and one puisne judge in the above cases in the Court of Appeal and as it had been expounded by Widgery J. in his direction to the jury in Manson v. Associated Newspapers Ltd.

9

THE APPEAL TO THE COURT OF APPEAL

10

At the end of the seventeen day trial the costs of the proceedings which, as between party and party, followed the event, must have already been enormous. Both Defendants accepted the verdict on liability. The defendant Irving appealed on all the damages awarded. The present Appellants appealed on the award of £25,000 "by way of exemplary damages". The appeal lasted nine days before the Court of Appeal (Denning M.R., and Salmon and Phillimore L.J.J.) and judgment was given on the 4th March, 1971, dismissing both appeals with costs, which must by this time, with the costs of the trial, even on a party and party basis, have greatly exceeded the amount of the award. Before the Appellate Committee of this House the appeal lasted thirteen working days, thus again greatly increasing the sum at stake, though by this time the Respondent Irving had given up the struggle.

11

JUDGMENT OF THE COURT OF APPEAL

12

The Court of Appeal took a somewhat unusual course. On the view which they formed of the matter, which, as will appear, I have come to share though with greater hesitation than they expressed, they were for dismissing the appeal on the grounds that the criticisms of the direction by Lawton J. failed, and that the mere size of the award was not one which, on accepted principles, could be attacked. If they had stopped there, it is possible, and perhaps likely, that the proceedings would have come to an end. It is doubtful if leave to appeal to this House would have...

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