Fielding v Variety Incorporated

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE SALMON,LORD JUSTICE HARMAN
Judgment Date08 March 1967
Judgment citation (vLex)[1967] EWCA Civ J0308-1
CourtCourt of Appeal (Civil Division)
Date08 March 1967
Harold Fielding and Harold Fielding Limited
Plaintiffs
Respondents
and
Variety Incorporated
Defendants
Appellants

[1967] EWCA Civ J0308-1

Before

The Master of the Rolls (Lord Denning)

Lord Justice Harman and

Lord Justice Salmon

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From Master Diamond

MR G.R.F. MORRIS, Q.C. and MR MICHAEL KEMPSTER (instructed by Messrs Denton Hall & Burgin) appeared as Counsel for the Appellants.

MR COLIN DUNCAN, Q.C. and MR A.T. HOOLAHAN (instructed by Messrs M.A. Jacobs & Sons) appeared as Counsel for the Respondents.

THE MASTER OF THE ROLLS
1

Mr Harold Fielding is an impresario of distinction. In the last few years he has been responsible for a large number of productions in the West End of London. A year or two ago he produced "Half a Sixpence". It was a great success here. Then it was taken to America where it made great deal of money. In December 1965 he produced another musical show called "Charlie Girl". It was at the Adelphi Theatre. It was a great success too. By the 3rd January, 1966, the box office receipts at the Adelphi Theatre constituted an all-time record for that theatre. Mr Fielding and his company took advantage of this success to put an advertisement in a periodical called "Variety". It is printed and published weekly in New York. It is devoted to the theatrical profession and has a world-wide circulation. It contains notices and descriptions of all that is happening in the theatrical world. As a result of the advertisement, the editor and proprietors of "Variety" must have been well aware of the great success of "Charlie Girl".

2

Nevertheless, on the 9th March, 1966, "Variety" produced an article by a writer who called himself Harm Schoenfeld. It said that the musical stage was "sick", and that a composer called Vernon Duke had surveyed the scene in Paris, London and the United States in the musical theatre world and found that it was "sick". Then the article went on: "The London musical theatre is a story of failure this season, Duke comments. Both the American imports and the locally originated shows, such as 'Twang' and 'Charlie Girl', have been disastrous flops". That statement was true so far as "Twang" was concerned. But it was completely untrue so far as "Charlie Girl" was concerned. It ought never to have been written and inserted in this newspaper at all.

3

Mr Harold Fielding was naturally most indignant. He happened to be in New York about that time or shortly afterwards.He spoke to the editor of this periodical "Variety". The editor roared with laughter and said: "It was nothing. Fielding". Mr Fielding afterwards spoke to the writer of the article. He said it was unimportant and that he would get in touch with Mr Fielding again, which he never did. One or other of them offered to put a note in the paper saying that Mr Fielding had come over to the United States with a view to producing "Charlie Girl" there and negotiating a deal. But, as that was untrue, Mr Fielding rejected the offer. Air Fielding suggested that there should be a two-page, a double-spread, article in the paper to put it right. But this was refused. No correction and no apology was put in the paper at all.

4

Mr Fielding and his Company issued a writ claiming damages for libel and injurious falsehood. The defendants did not put in any defence. Judgment was entered against the paper for damages to be assessed. The assessment came before Master Diamond. He heard the evidence of Mr Fielding and another witness. He awarded £5,000 to Mr Fielding for injury to his personal reputation. He awarded £10,000 to the Company, Harold Fielding Limited., for pecuniary damage. The defendants appeal to this Court on the quantum of the damages.

5

The parties have agreed that the damages for injurious falsehood should be awarded to Mr Fielding's Company: and that the damages for libel should be awarded to Mr Fielding personally.

6

I will first consider the claim for injurious falsehood. In the old days in order to make good such a claim a plaintiff had to show that the words were false: he had to show malice: and also had to prove special damage, which might be general loss of business: see Ratcliffe v. Evans, 1893, 2 Queen's Bench, page 524. Now by the Defamation Act, 1952, Section 3(1) it is no longer necessary to allege or prove special damage if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writingor other permanent form. All the necessary elements are here admitted. It is admitted that the words were calculated to cause pecuniary damage. But the question is: What pecuniary damage has been suffered? The plaintiffs on this head of claim can only recover damages for their probable money loss, and not for their injured feelings.

7

One thing is dear: There is no pecuniary damage in this country. No-one suggests that the box office receipts at the Adelphi Theatre are any the less by reason of this publication. "Charlie Girl" is such a success in England that it is fully booked up already well into this present season. The only pecuniary damage that is suggested is the chance of losing a production in the United States. Mr Fielding gave his evidence very accurately and very impressively. He said that "Charlie Girl" must suffer harm. But he admitted that in the general trade it is known in New York as a great success: "it is known in the entertainment circles where I am talking to them". He agreed also that anyone thinking of producing "Charlie Girl" in the United States would send someone over here to see it. He added that he was hopeful that he would be able to take it to the United States in due course, but it might have to be varied considerably.

8

In these circumstances I cannot find any evidence to show that the chances of production in the United States have been adversely affected. I should have thought that everyone of note in the theatrical profession in the United States must know by now that "Charlie Girl" has been a great success. None of them is likely to be influenced by those two words written as long ago as March 1966. I cannot go with the Master in his assessment of £10,000. I would only assess the pecuniary damage from this publication at a nominal sum which I would put at £100.

9

I must now consider the claim for libel. By describing"Charlie Girl" as a "disastrous flop", the defendants reflected on Mr Fielding's competence. The damages here are at large. They are not confined to pecuniary damage. At one time in the case of libel it was the understanding of all of us that a jury (or a Judge, if it was tried by a Judge) could mark the disapproval of the Court by awarding exemplary or punitive damages. But the House of Lords in the case of Rookes v. Barnard, 1964 Appeal Cases, page 1129, in a judgment delivered by Lord Devlin, in which the other Lords concurred, have told us that we must not give damages of an exemplary or punitive nature. I believe the High Court of Australia hrs taken a different view, but we in this Court must follow what the House of Lords have told us. So we cannot give exemplary or punitive damages. But Lord Devlin went on to say at page 1221: "It is very well established that in cases where the damages are at large the jury (or the Judge, if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite, or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation". That was followed and applied in the decision of this Court in MoCarey v. Associated Newspapers Limited, 1965, 2 Queen's Bench, page 87. He can, therefore, consider the want of any excuse or justification by this newspaper. It behaved very badly indeed. No correction. No apology, not even to this day. Its conduct must have infuriated Mr Fielding. He is a master in his art and profession: and yet he is treated thus. The injury to him has certainly been aggravated by their conduct. His feelings have been grievously wounded without any justification. For all this he is entitled to damages. But what is the amount to be, remembering that we can no longer give exemplary or punitive damages.

10

In all the circumstances we think the sum of £5,000 which the Master awarded is a wholly erroneous estimate. After consultation together we have agreed to substitute the sum of £1,500.

11

I would allow the appeal accordingly.

12

LORD JUSTICE BARMAN: Such experience as I have had in this Court with the subject of libel has satisfied me that when the damages are, as they say, at large, they do present a most baffling problem. When one is trained in a different school, that problem is necessarily difficult because the damages hear no relation to any calculation that you can make. They are truly, as it is said, at large. In this Court, of course, we only see them when they are said either to be too large by a very long way or too small: and usually they represent the flights of fancy of an incensed jury. In the present case there was no jury. There was a very experienced Master and, therefore, one must regard the dissent that at least my mind has felt from the beginning with some suspicion. One may not, as my Lord has said, award swingeing or punitive damages nowadays. The bad behaviour of the defendants must, therefore, be left out of account on that view.

13

The defendants have indeed, so it seems to me, made the worst of every possible world. They have driven themselves or been driven into a position where it must be taken that they knew what they were publishing was untrue, yet they did it maliciously, that is to say intending to hurt, and then when chall-enged with it, they produced no...

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    ...any event. Further cases relied upon by C 211 Given the reliance placed on it by Counsel for C, I need to address Fielding v Variety Inc [1967] 2 QB 841. This is the only authority drawn to my attention in which nominal damages for malicious falsehood were awarded under section 3 despite n......
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