Lewis v Daily Telegraph Ltd (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE SELLERS,LORD JUSTICE PEARSON,LORD JUSTICE RUSSELL
Judgment Date21 January 1964
Judgment citation (vLex)[1964] EWCA Civ J0121-1
Docket Number1958 R. No. 2367

[1964] EWCA Civ J0121-1

In The Supreme Court of Judicature

Court of Appeal

(From: Mr. Justice Roskill-in Chambers)

Before:

Lord Justice Sellers

Lord Justice Pearson and

Lord Justice Russell

1958 R. No. 2367
Rubber Improvement Limited
and
Associated Newspapers Limited
1958 L. No. 2388
John Lewis
and
Associated Newspapers Limited

(Consolidated by Order of Master Clayton dated 29th May 1959)

1958 R. No. 2366
Rubber Improvement Limited
and
The Daily Telegraph Limited
1958 L. No. 2390
John Lewis
and
The Daily Telegraph Limited

(Consolidated by Order of Master Diamond dated 29th May 1959)

Consolidated by Order dated 16th September 1963

Mr. NEIL LAWSON, Q. O. and Mr. ERIC MYERS (instructed by Messrs. Tringhams) appeared on behalf of the Appe-ltnt (Plaintiff Lewis).

LORD GARDINER, Q. O. and Mr. DAVID HIRST (insitftonted by Messrs. Swepstone, Walsh & Co.; appeared on behalf of the Respondents Associated Newspapers Ltd. (Defendants).

LORD GARDINER, Q. C. and Mr, HUGH DAVIDSON (Instructed by Messrs. Simmons & Simmons) appeared on behalf of the Respondents The Daily Telegraph Ltd. (Defendants).

Mr. DOUGLAS LOWE (instructed by Messrc. Bower, Cotton & Bower) appeared on behalf of the Respondent Rubber Improvement Ltd.(co-Plaintiffs).

LORD JUSTICE SELLERS
1

I will ask Lord Justice Pearson to give the first

LORD JUSTICE PEARSON
2

The appellant in these appeals is the plaintiff Lewis, and he is appealing against refusals by Mr. Justice Roskill to make what have been called "deconsolidation orders" in certain actions. To make the position clear, I must briefly trace the history of the relevant actions and proceedings.

3

The plaintiff Lewis was the managing director of the plaintiff company, Rubber Improvement Ltd., until that company went into liquidation at some time I think in 1963. On the 23rd December, 1958, the "Daily Telegraph" published an article as follows: "Inquiry on Firm by City Police. Daily Telegraph Reporter. Officers of the City of London Fraud Squad are inquiring into the affairs of Rubber Improvement Limited and its subsidiary companies. The investigation was requested after criticisms of the Chairman's statement and the accounts by a shareholder at the recent company meeting. The Chairman of the company, which has an authorised capital of £1 million, is Mr. John Lewis, a former Socialist M. P. for Bolton". On the same day the "Daily Mail" published an article in similar, though not quite identical, terms, which I need not read.

4

On that same day, the 23rd December, 1958, four actions for libel were commenced, and the parties were: in the first action the plaintiff company against The Daily Telegraph Limited; in the second action the plaintiff Lewis against The Daily Telegraph Limited; in the third action the plaintiff company against Associated Newspapers Limited, as publishers of the "Daily Mail"; in the fourth action the plaintiff Lewis against Associated Newspapers Limited.

5

On the 13th January, 1959, the four Statements of Claim were delivered, and they very closely resembled each other and were all signed by the same counsel. In each Statement of Claim Paragraph 1 described the nlaintiff company or the plaintifflewis or both of them, paragraph 2 described the defendants, paragraph 3 set out the libel, paragraph 4 alleged an innuendo and gave particulars, and paragraph 5 alleged damage, which was only general damage. The alleged innuendo in the actionhe actionof the plaintiff company against The Daily Telegraph Ltd. and also in the plaintiff company's action against Associated Newspapers Ltd. was in these terms: "By the said words the defendants meant and were understood to mean that the affairs of the plaintiffs and/or its subsidiaries were conducted fraudulently or dishonestly or in such a way that the police suspected that their affairs were so conducted". The alleged innuendo in each of the actions of the plaintiff Lewis was necessarily somewhat longer, as it had to refer both to him and to the plaintiff company, but substantially it was to the same effect.

6

The four Defences, delivered on the 29th January, 1959.were in almost identical terms and were all signed by the same counsel. Each of them admitted paragraphs 1 and 2 of the Statement of Claim and publication of the words complained of, but alleged that the words in their natural and ordinary meaning were true, and denied that the words bore or were understood to bear or were capable of bearing the meanings attributed to them in the alleged innuendo. The alleged damage was denied; and there were pleas in mitigation of damage.

7

On the 29th May, 1959, on the application of the plaintiff Lewis, two consolidation orders were made. The actions of the plaintiff company and the plaintiff Lewis against The Daily Telegraph Ltd. were consolidated into one action. The actions of the plaintiff company and the plaintiff Lewis against Associated Newspapers Ltd. were similarly consolidated into one action., Plainly those two consolidation orders were properly made in the situation then existing, and nobody has contended otherwise.

8

There was a long delay, which has not been explained, before tbe actions (being now of course two actions) came to trial. But in July, 1961, they were tried before Mr. Justice Salmon (as he then was) and a;Jury, the action against The DailyTelegraph Ltd. being tried first and the action against Associated Newspapers Ltd. immediately after it. I think the two actions were tried by different juries, but that is not material for the purposes of this appeal. In each action Mr. Justice Salmon held that the words complained of were capable of meaning that the plaintiff conroany and the plaintiff Lewis had behaved fraudulently, and he so directed the jury. The verdicts were in favour of the plaintiffs, and the damages were: against The Daily Telegraph Ltd. £25,000 for the plaintiff Lewis and £75,000 for the Dlaintiff company, and against Associated Newspapers Ltd. £17,000 for the Dlaintiff Lewis and £100,000 for the plaintiff cowpany.

9

In each of the two actions the defendants appealed to the Court of Appeal, and the Court of ADpeal gave judgment on the 4th April, 1962, setting adide the verdicts and judgments, ordering a new trial, directing that the defendants' costs of the appeal be paid by the plaintiffs, and directing that the costs of the trial should abide the result of the new trial. Then in each of the two actions the plaintiffs appealed to the House of Lords, but on the 26th March, 1963, the House of lords dismissed the appeals, affirming the decision of the Court of Appeal and affirming or repeating its directions, and directed that the defendants' costs of the appeal to the House of Lords should be paid by the Plaintiffs.

10

It is to be noted that the Court of Appeal by a majority, and the House of Lords by a majority, held that the words complained of were incapable of meaning that the plaintiff company or the plaintiff Lewis had behaved fraudulently. There was both in the Court of Appeal and the House of Lords careful consideration as to the form of the innuendo; but it is not necessary to refer to that in detail for the purposes of this appeal. Then by applications dated respectively the 29th and 30th July, 1963, the defendants in each of the actions applied for further directions for striking out the alleged innuendo, for further discovery, for the plaintiff company to give security forcosts, for further and better particulars of the Statement of Claim, and for consolidation of the two existing actions into only one action.

11

The summonses were addressed to the same plaintiffs'solicitors who had hitherto been acting for both the plaintiff company and the plaintiff lewis. But, as we have been informed, disputes had arisen between the plaintiff company and the plaintiff Lewis, mainly in resnect of their liability to pay to the defendants the costs of the unsuccessfulappeals, and the solicitors who had hitherto acted for both plaintiffs removed themselves from the record, and Messrs. Tringhams placed themselves on the record as acting for the plaintiff Lewis, and Messrs. Bower, Cotton & Bower placed themselves on the record as acting for the plaintiff company.

12

On the 5th September, 1963, Messrs. Tringhams, acting for the plaintiff Lews only, gave notice to the plaintiff company and their solicitors, and to the defendants and their solicitors, that the plaintiff Lewis would apply for an order that his action against the defendants in each case be deconsolidated from the plaintiff company's action against the sane defendants. There was a separate notice in each of the two actions.

13

Summarising shortly, I can say that the plaintiff Lewis was seeking to have the existing two actions deconsolidated so that the original four actions would re-emerge as separate actions, whereas the defendants were seeking to have the existing two actions further consolidated into only one action, so that there would be a comprehensive consolidation of all four actions.

14

All the applications were heard by Master Jacob on the 16th September, 1963. He rejected the plaintiff Lewis's application for deconsolidation of the two existing actions. He granted the defendants' application for the comprehensive consolidation,. Master Jacob also on the 16th September, 1963, gave the plaintiffs in each of the consolidated actions leave to deliver Amended Statements of Claim, with consequential leaveto the defendants to deliver Amended Defences if so advised. He ordered further and better particulars of the Statement of Claim, stating whether any special damage is alleged and if sogiving particulars of it. He made no order for discovery against the plaintiff Lewis on the plaintiff company undertakingto make a further affidavit of documents. He refused to order security for costs against the plaintiff company.

15

On the 1st October, 1963, the plaintiff company's solicitors...

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