Relief Against Forfeiture―Who Can Apply?
| Published date | 01 May 1965 |
| Author | D. G. Barnsley |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01082.x |
| Date | 01 May 1965 |
364
THE
MODERN
LAW
REVIEW
VOL.
28
organisation with a mass circulation, and
it
is commonly recognised
that, even where there has been
no
direction
on
the possibility
of
awarding exemplary damages, their size has
on
occasion been
related not only to the wide dissemination that has been given
to
the harmful statement, but also to the desire to do something which
will hurt the large organisations who are defendants, and encourage
them to future caution. This kind of policing by the
jury
ought
to
distinguish between deliberate scandal-mongering and inadvertent
misreporting, but it would be hard to assert that this has consis-
tently been the case. The new approach heralded by McCarey’s
case is to be welcomed since it suggests a fundamental distinction
between the two kinds of conduct.
In
Rookes
v.
Barnahl,
Lord
Devlin admitted two exceptions
to
the principle
of
no
exemplary
darnages’ll and the second-that they may be given where the
defendant’s conduct is calculated to make a greater profit than the
likely compensation to the plaintiff-should still cover most cases
of a libel suit deliberately risked in order to increase circulation.”*
It
must also be remembered that Lord Devlin indicated in strong
terms that even where exemplary damages remain appropriate, their
size is to be limited by three considerations, the second
of
whicb
is
that considerable moderation must
be
shown
:
‘‘
I
should not allow the respect which is traditionally paid
to
an assessment of damages by a jury to prevent me from seeing
that the weapon is used with restraint.
It
may even be that
the House may find
it
necessary
to
follow the precedent
it
set for itself in Benham v. Garnbling,l2 and place some arbitrary
limit
on
awards of damages that are made by way of punish-
ment. Exhortations to be moderate may not be enough.”
l8
If
the end-result of this change
of
approach is that judicial control
of damages in defamation actions increases
so
as to become
com-
parable with that now exerted over questions of liability, then the
atypical popularity of the jury
in
this one field of civil litigation
may well disappear. This in its turn suggests that the time
is
ripe
for a reappraisal
of
the machinery available to check abuses
of
press power, for it seems clear that defamation juries have until
now, with beginners’ enthusiasm, taken
to
this particular task
with
a
will.
W.
R.
CORNISH.
RELIEF
AGAINST
FORFEITURE--WHO
Cm
APPLY
?
YET
another nail has been driven into the squatter’s
coffin
by
Plowman
J.’s
decision in Tickner v. Buzzacott.’
Mrs.
S
had been
in possession, adverse to the leaseholder,
of
certain premises
for
a
11
[1964]
A.C.
11‘29
at
pp.
1!2261!227.
11s
But the mere fact that a newspaper pnbliehee for profit
is
not of itself
sufficient:
Broadway
Approvals
V.
Odham
Presa
Ltd.
(1966) 109
S.J.
‘294.
per
Sellers
L.J.
12
rig411
A.C.
157.
18
[1964]
A.C.
11‘29
St
pp.
1227-1228.
1
[1965]
2
W.L.R.
164; [la661 1
All
E.R.
131.
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