Ratcliffe v Evans
|England & Wales
|Court of Appeal
Defamation - Words not Actionable per se - Publication of Falsehoods about a Business - Special Damage - Evidence - General Loss of Business.
In an action for words not actionable per se, but constituting an untrue statement maliciously published about the plaintiff's business, which statement is intended or reasonably likely to produce, and in the ordinary course of things does produce, a general loss of business as distinct from the loss of particular known customers, evidence of such general loss of business is admissible, and sufficient to support the action.
MOTION to enter judgment for the defendant, or for a new trial, by way of appeal from the judgment entered by Mr. Commissioner Bompas, Q.C., in an action tried with a jury at the Chester Summer Assizes, 1891.
The statement of claim in the action alleged that the plaintiff had for many years carried on the business, at Hawarden in the county of Flint, of an engineer and boiler-maker under the name of “Ratcliffe & Sons,” having become entitled to the goodwill of the business upon the death of his father, who, with others, had formerly carried on the business as “Ratcliffe & Sons”; that the defendant was the registered proprietor, publisher, and printer of a weekly newspaper called the County Herald, circulated in Flint-shire and some of the adjoining counties, and that the plaintiff had suffered damage by the defendant falsely and maliciously publishing and printing of the plaintiff in relation to his business, in the County Herald, certain words set forth which imported that the plaintiff had ceased to carry on his business of engineer and boiler-maker, and that the firm of Ratcliffe & Sons did not then exist.
At the trial the learned commissioner allowed the statement of claim to be amended by adding that “by reason of the premises the plaintiff was injured in his credit and reputation, and in his said business of an engineer and boiler-maker, and he thereby lost profits which he otherwise would have made in his said business.” The plaintiff proved the publication of the statements complained of, and that they were untrue. He also proved a general loss of business since the publication; but he gave no specific evidence of the loss of any particular customers or orders by reason of such publication. In answer to questions left to them by the commissioner, the jury found that the words did not reflect upon the plaintiff's character, and were not libellous; that the statement that the firm of Ratcliffe & Sons was extinct was not published bonâ fide; and that the plaintiff's business suffered injury to the extent of 120l. from the publication of that statement. The commissioner, upon those findings, gave judgment for the plaintiff for 120l., with costs.
The defendant appealed.
Bowen Rowlands, Q.C., and E. H. Lloyd, for the appellant. The learned commissioner ought to have entered judgment for the defendant. The evidence given by the plaintiff of a general loss of business ought not to have been admitted. In order to support the action, which is not an action for slander of the plaintiff in the way of his business, but an action on the case, special damage must have been alleged and proved. If the plaintiff had brought his action for slander, he must have proved special damage by calling witnesses to say that they had withdrawn their custom from him. He ought not to be in a better position by having brought an action on the case in the nature of an action for slander of title. In such an action there must, in order to support it, be an express allegation of some particular damage: Malachy v. Soper.F1 The analogy of actions for slander in which damage is the gist of the action applies. If the slander is not actionable per se, then, if the plaintiff may prove general damage, he can recover because the defendant's statement has been repeated by others; but the decisions in Ward v. WeeksF2 and Dixon v. SmithF3 are founded on the principle that the defendant cannot be made liable for repetitions of the statement he has made. It is conceded that in a certain class of cases — of which Evans v. HarriesF4 may be one — where from the nature of the case the plaintiff cannot give evidence of special or particular damage, the jury may infer such damage from the fact that the plaintiff's business has gone; but Evans v. HarriesF4 differs from the present case, because there was there a personal imputation on the plaintiff; it was never treated as an action on the case. In Riding v. SmithF5, also, though the Court held that special damage must be proved in order to support the action, they thought, under the circumstances of that case, that it might be proved by giving general evidence of the falling off of the plaintiff's business, without shewing that particular persons, who had heard the defendant's statements, had ceased to deal with the plaintiff. The principle of Malachy v. SoperF6 should be applied here. [They also referred to Western Counties Manure Co. v. Lawes Chemical Manure Co.F7; Clarke v. Morgan.F8]
F. Marshall, for the respondent. The evidence of the plaintiff's general loss of business was admissible, and it was evidence of special damage sufficient to support the action. The defendant's statements were published in a newspaper which was widely read in Wales, and the natural consequence would be to prevent persons who were, or intended to be, customers of the plaintiff, and who read the statements, from giving him further orders.
From the nature of the case, it was impossible that the plaintiff could give other than general evidence of his loss of business; and this comes within the class of cases in which it has been held that such evidence is sufficient evidence of special damage to support the action. Malachy v. SoperF9 is not in point here. The Court did not intend to lay down a general rule; they thought that, under the circumstances of that case, there was no sufficient allegation or proof of special damage. [He referred also to Thomas v. WilliamsF10; Dicks v. Brooks.F11]
May 26. The following judgment of the Court (Lord Esher, M.R., Bowen, and Fry, L.JJ.), was read by
BOWEN, L.J. This was a case in which an action for a false and malicious publication about the trade and manufactures of the plaintiff was tried at the Chester assizes, with the result of a verdict for the plaintiff for 120l. Judgment having been entered for the plaintiff for that sum and costs, the defendant appealed to this Court for a new trial, or to enter a verdict for the defendant, on the ground, amongst others...
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