Hebditch v MacIlwaine

JurisdictionEngland & Wales
Date1894
Year1894
CourtCourt of Appeal
[IN THE COURT OF APPEAL.] HEBDITCH v. MACILWAINE AND OTHERS. 1894 April 5. LORD ESHER, M.R., A. L. SMITH and DAVEY, L.JJ.

Defamation - Libel - Privileged Occasion - Absence of Interest or Duty in Person to whom defamatory Statement is made - Belief of Defendant in existence of such Interest or Duty.

In order that the occasion upon which a defamatory statement is made may be privileged, it is necessary that the person to whom such statement is made, as well as the person making it, should have an interest or duty in respect of the subject-matter of such statement. It is not sufficient that the maker of the statement honestly and reasonably believes that the person to whom it is made has such an interest or duty.

Tompson v. Dashwood, (11 Q. B. D. 43) disapproved of.

APPLICATION by defendants for judgment or new trial.

The action, which was for libel, was tried before Vaughan Williams, J., with a jury. The defendants pleaded a justification and privilege.

It appeared that the plaintiff had been elected to the office of guardian of the poor for the parish of South Petherton. The defendants, who were ratepayers of the parish and entitled to vote at the election, signed and sent to the board of guardians a letter complaining of certain irregularities which they alleged to have occurred at the election, and suggesting that the matter ought to be inquired into. The first part of this letter alleged in substance that voting papers had been tampered with, that the voting paper of a voter had been filled up by an employé of the plaintiff in the absence of the voter, and his wife had been induced to put her mark to the paper, and that other similar cases had occurred; the latter part of the letter alleged in substance that electors had been treated with drink. The plaintiff alleged that the effect of the letter was to impute that he had himself participated in the malpractices therein mentioned. The judge left to the jury the following questions: 1. Whether the letter was libellous with regard to the plaintiff; 2. Whether the plea of justification was proved; 3. Whether the defendants honestly believed it to be their duty to make each and all of the communications contained in the letter to the board of guardians, and did so acting under a sense of that duty; 4. Whether the defendants honestly and reasonably believed that the board of guardians were the proper authority to whom to apply in respect of each and all of the matters mentioned in the letter. The judge reserved any question of actual malice until these questions had been answered. The jury found that the letter was libellous with regard to the plaintiff, and that the plea of justification was not proved. In answer to the third question they found that the defendants acted partly under a sense of duty, and partly not. In answer to the fourth question, they found that the defendants did honestly and reasonably believe that the board of guardians were the proper authority to whom to apply. The judge, thinking the effect of these answers ambiguous, asked the jury the following further questions: 1. Whether the defendants wrote the first part of the letter under a sense of duty, and believing the board of guardians to be the proper authority to whom to apply; 2. a similar question with regard to the latter part of the letter. The jury answered the first of these questions in the affirmative, and the second in the negative.

The judge thereupon held that the occasion was not wholly privileged, and, therefore, the plaintiff was entitled to damages, the amount of which he asked the jury to assess. The jury assessed the damages at 10l., for which sum the judge gave the plaintiff judgment.

J. Alderson Foote, for the defendants. The judge, upon the finding of the jury that the defendants honestly and reasonably believed the board of guardians to be the proper authority to whom to apply, ought to have held the occasion to be privileged. That being so, in the absence of express malice, the defendants would be entitled to judgment. The jury, no doubt, found in the negative on the question whether the defendants acted under a sense of duty with regard to the latter part of the letter. But that question would only be material in dealing with the question of express malice. That question never arose, the judge ruling that the occasion was not privileged. There was no evidence in this case to go to the jury of actual malice.

The defendants as ratepayers had an interest in the matter to which the letter related. It may be admitted that the board of guardians could take no action in the matter brought before them by the defendants. They could not avoid the plaintiff's election. That could only be done by a petition under the Municipal Corporations Act, 1882, part IV., which is rendered applicable in the case of elections to the office of guardian by the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, s. 36. It is contended, however, that, where a person who has a grievance makes a complaint in respect thereof to a person or body, whose duty he honestly and reasonably believes it to be to inquire into and redress such grievance, the occasion is privileged. See per Fitzgerald, B., in the Irish case of Waring v. M'Caldin.F1 The ruling of Blackburn, J., in Scarll v. DixonF2, is in favour of the view that the fact that the complaint is by mistake made to the wrong person will not prevent the occasion from being privileged. In Harrison v. BushF3 the Court no doubt declined to express any conclusive opinion on this point, but the language used by Lord Campbell, C.J., in delivering the judgment, seems in favour of the contention now put forward for the defendants. See also Lake v. KingF4; Rex v. BayleyF5; Fairman v. IvesF6;

McDougall v. ClaridgeF7; Cleaver v. SarraudeF8; Rex v. Baillie.F9

[LORD ESHER, M.R., referred to the observations made by Cresswell, J., in Pearson v. LemaitreF10, upon the cases of McDougall v. ClaridgeF7 and Fairman v. Ives.F11]

In many of these cases the complaint was made to persons who really could not be said to have any duty to take action in the matter; and yet the occasion was held to be privileged. In Harrison v. BushF12, the ground of the decision, no doubt, was that the complaint must be treated as having been in substance addressed to the Sovereign. But it is difficult to put the decisions and dicta in many of the previous cases on that ground; for instance, in Fairman v. IvesF11, the Secretary of State for War had nothing to do with making an officer in the army pay his debts, and could not be supposed to represent the Sovereign for that purpose. The case of Tompson v. DashwoodF13 is a distinct authority in...

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  • Table of Cases
    • Canada
    • Irwin Books Cyberlibel: Information Warfare in the 21st Century? Part VIII
    • 15 June 2011
    ...[1982] 1 Q.B. 47 ........................................................................................ 83 Hebditch v. MacIlwaince [1894] 2 Q.B. 54 ...........................................................................108, 227 Hemming v. Newton, 2006 BCSC 1748 .............................
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    • Canada
    • Irwin Books Cyberlibel: Information Warfare in the 21st Century? Part IV
    • 15 June 2011
    ...material part of the cause of action in dispute is not the uttering, but the publication, of the language used (Hebditch v. MacIlwaince [1894] 2 Q.B. 54, at 58, 61, 64, O’Keefe v. Walsh [1903] 2 Ir. R. 681, at 706). Newson (Chief Provincial Firearms Oicer for B.C.) v. Kexco Publishing Co. (......
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    • Irwin Books Cyberlibel: Information Warfare in the 21st Century? Part II
    • 15 June 2011
    ...material part of the cause of action in dispute is not the uttering, but the publication, of the language used (Hebditch v. MacIlwaince [1894] 2 Q.B. 54, at 58, 61, 64, O’Keefe v. Walsh [1903] 2 Ir. R. 681, at 706). and at the same page approves the following statement from Clement Gatley, ......
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    • Irwin Books Canadian Libel and Slander Actions
    • 17 June 2004
    ...material part of the cause of action in dispute is not the uttering, but the publication, of the language used (Hebditch v. Madlwaince [1894] 2 Q.B. 54, at 58, 61, 64, O'Keefe v. Walsh [1903] 2 Ir. R. 681, at 706). and at the same page approves the following statement from Clement Gatley Ga......
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