Herbage v Pressdram Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE GRIFFITHS,LORD JUSTICE KERR
Judgment Date01 May 1984
Judgment citation (vLex)[1984] EWCA Civ J0501-1
Docket Number84/0184

[1984] EWCA Civ J0501-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

On appeal from Order of Mr Justice Webster.

Royal Courts of Justice,

Before:

Lord Justice Griffiths

and

Lord Justice Kerr

84/0184

Between:
Alex William Herbage
and
(1) Pressdram Limited
(2) Feb Edge Litho (1979) Limited
(3) Private Eye Distribution (A Firm)
(4) Richard Ingrams.

Mr RICHARD SLOWE (instructed by Messrs Slowes) appeared on behalf of the Appellant (Plaintiff).

Mr DESMOND BROWNE (instructed by Messrs Bindman & Partners) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE GRIFFITHS
1

This is an appeal by Mr Herbage from the Order of Mr Justice Webster given on the 10th November of last year in which he dismissed Mr Herbage's application for an injunction to restrain the Defendants from further publication of the fact of his conviction of certain offences which are to be regarded as "spent" offences for the purposes of the Rehabilitation of Offenders Act 1974.

2

Mr Herbage carries on business as an investment adviser. On the 8th September 1966 he pleaded guilty to two offences under the Companies Act for which he received two sentences of six months imprisonment to run concurrently. By virtue of the provisions of the Rehabilitation of Offenders Act 1974 those convictions were "spent" after a period of seven years, and for the purposes of the Act Mr Herbage is entitled to be treated as a rehabilitated person. The magazine "Private Eye" has published a number of articles about Mr Herbage's business activities. They are not complimentary, and in each they refer to the fact of Mr Herbage's convictions. They also draw attention to various business failures with which they allege Mr Herbage has been associated. They are clearly calculated to deter the investing public from reposing confidence in Mr Herbage as an investment adviser.

3

By a Writ dated the 2nd November 1983, Mr Herbage started a libel action against the Defendants, complaining of libels contained in four editions of "Private Eye" published between January and November of 1983. In these proceedings he seeks to restrain Private Eye and other Defendants from publishing any further reference to his convictions. Private Eye, through the affidavit of their editor Mr Ingrams, say they will justify the contents of their articles and deny that they published them maliciously. Mr Justice Webster refused the injunction. He did so because he was not satisfied that on the material before him it would be right to impute malice to the Defendants. The case as argued before the Judge proceeded upon the basis that it was only in a wholly exceptional case that an injunction would be granted in a libel action where the defendant pleaded justification or that the words were published on a privileged occasion, so that the burden was on the plaintiff to destroy the privilege by establishing malice; and, applying this principle, there was ample material to justify the exercise of the discretion to refuse the injunction. If the Judge applied the right principle, Mr Slowe does not seek to challenge this exercise of the Judge's discretion. Mr Slowe has, however, by way of an amended notice of appeal challenged the principles which he concedes are well established in the general run of defamation actions and submits that the discretion should be exercised differently where the defendant published a "spent" conviction within the meaning of the Rehabilitation of Offenders Act 1974.

4

The principles which it is conceded generally apply to the grant of interim injunctions in defamation actions are helpfully summarised in Mr Slowe's skeleton argument: firstly, no injunction will be granted if the defendant raises the defence of justification. This is a rule so well established that no...

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