Egger v Chelmsford (Viscount)
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE DAVIES |
| Judgment Date | 22 July 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0722-4 |
| Court | Court of Appeal |
| Date | 22 July 1964 |
[1964] EWCA Civ J0722-4
In The Supreme Court of Judicature
Court of Appeal
From Mr Justice Marshall
The Master of the Rolls (Lord Denning)
Lord Justice Harman and
Lord Justice Davies
MR PETER BRISTOW, Q. C. and MR G. E. ADEANE (instructed by Messrs Hewitt, Woollacott & Chown) appeared as Counsel far the Appellants, the 2nd, 7th, 8th and 11th defendants.
MR P. COLIN DUNCAN, Q. C. and MR B. NEILL (instructed by Messrs Oswald Hicks on, Collier & Co.) appeared as Counsel for the Respondent.
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 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, Mr 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 fudges 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). And they found that the assistant secretary, Mr 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. Streatfaild 1913, 3 King's Bench, p. 764. The four who were found innocent of malice appeal tothis Court.
The appeal raises a point of much importance in the law of libel. The case of Smith v. Streatfeild 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 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 others". I do not believe there is any such general rule: and I will go through the cases to prove it.
I will first take the cases which are said to support Gatley's general rule. The case, of course, is Smith v. Streatfeild itself. Mr 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 Mr Smith ought not to be re-appointed diocesan surveyor. So the Canon determined to write to the Rural Deans who were the appointing body. He wrote a pamphlet setting out his view 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 Deane. Mr 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. Mr Justice Bankes, 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. Mr Justice Bankes gave two reasons. The first was this: "The finding of the jury establishes the fact that thedefendant 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 premise. 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 Mr Justice Bankes was this: "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 1917 Appeal Cases, p. 309. I have studied the record of this case in the House of Lords. Major Adams, M. P., made 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 farm of a communique and sent out 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 Mr Justice Darling. 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 said (at p. 320): "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 said (at p. 32l): "I fall to see….how any 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 said (at pp. 340-1): "His (Sir Edward Ward's) own personal feelings or privilege 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. Streatfeild was cited to their Lordships in order to suggest that Sir Edward Ward stood in the same position as his principals, the Army Council, but they did not hear the argument to the contrary, as the cage went off on other point (see p. 316). 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 liablein 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 despatches 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...
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Express Malice
...malice of his or her agent. Sun Life Assurance Co. of Canada v. Dalrymple, above, at 310, citing Egger v. Viscount Chelmsford et al, [1964] 3 All E.R. 406 (C.A.), where Lord Denning M.R. stated at 412: A defendant is only affected by express malice if he himself was actuated by it: or if hi......
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Fair Comment
...Sun Life Assurance Company of Canada v. Dalrymple, above, per Spence J. quoting Lord Denning in Egger v. Viscount Chelmsford et. al. [1964] 3 All E.R. 406 at 412 (C.A.): A defendant is only affected by express malice if he himself was actuated by it. There is a significant burden on a plain......
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Parties
...malice of one partner does not taint the others. Meekins v. Henson, ibid, at 480, approved on this point: Egger v. Viscount Chelmsford, [1965] 1 Q.B. 248, per Lord Denning at 263 (C.A.): The other cases are those where you have a group of persons, such as trustees or partners, who entrust o......