Theaker v Richardson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE ORMEROD |
| Judgment Date | 20 December 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1220-4 |
| Court | Court of Appeal |
| Date | 20 December 1961 |
[1961] EWCA Civ J1220-4
Lord Justice Ormerod,
Lord Justice Harman and
Lord Justice Pearson
In The Supreme Court of Judicature
Court of Appeal
judge properly directed on the answers of the Jury that there bad been publication of the libel, and, as they had assessed the damages at £500, he gave Judgment for the Plaintiff for that amount. The appeal is against this part of the Judgment. The grounds of appeal, put shortly, are (1) that the Jury was perverse, and (2) that the damages were excessive.
The Plaintiff and Defendant were both members of the Mablethorpe Urban District Council. They were members of the same political party, and there is no political basis for the ill-feeling between the parties. But that there was ill-feeling is not in doubt, and, on the morning of the 5th May, 1960, the Plaintiff, who lives in Mablethorpe and is the wife of a man who delivers coal in the district, met the Defendant's wife in the town and there appears to have been a quarrel between them. The Defendant also lives in Mablethorpe and is a jeweller, and he came upon the Plaintiff and his wife in the course of this quarrel and found his wife to be in a very distressed condition. He took her home in his car, and then, according to his evidence, returned to his shop to get some election literature, as an election for the Council was to take place within a few cays. He was extremely upset and angry about the events which had happened and decided to write to the Plaintiff. He started write the letter but found that his writing in his angry stat? was illegible, so he started again and this time he typed it. There is no doubt that the letter was abusive and defamatory. It is agreed that there is no truth in the allegations made by the Defendant and his conduct has inexcusable. He accused the Plaintiff of shoplifting and of being a prostitute and a brothel keeper and the language in which the allegations were expressed seems to have been deliberately offensive. His evidence is that having written the letter he put it in an ordinary business envelope, a manilla one, and sealed it by guiding down the flap and further making it secure by putting across the flap a piece of sellotape. He addressed the envelope by typewriter to "coun. Mrs D. Theaker, Victoria Road, Mablethorpe", and decided to take it himself to the house and if possible deliver it in person to the Plaintiff. On reaching the Plaintiff's house, however, he saw a car outside which led him to believe that some person had called upon the Plaintiff on the business of the Council, so he put the letter through the letter-box and walked away. It appears that the Plaintiff was not in the house at the time, but her husband came in shortly afterwards, and, seeing the letter on the mat, opened it, so he says, thinking that it was an election address. Having read it, he looked at the address on the envelope and then realised, again so he says, that the letter was for his wife. At that time the Plaintiff's carried daughter, who lived in the house, came into the hall and the husband showed her the letter. She in turn read it and took it to a house across the road where she expected to find her mother. The Plaintiff claims that in the result her health was affected. She because less popular socially and in the election in the following year her majority was reduced by 400 votes. It is not now claimed that there was publication to anyone other than her husband, and it in on that basis that the case must be considered.
The questions on this issue put to the Jury by the learned Judge were as follows: (1) Did the Plaintiff's, husband open and read the letter? (2) Did the Defendant anticipate that someone other than the Plaintiff would open and read the letter? (3) Was it a natural and probable consequence of the Defendant's writing and delivery of the letter that the Plaintiff's husband would open and read the letter? (4) How much damages? The Jury answered questions 1, 2 and 3 in the affirmative and assessed the damages at £500. Judgment was accordingly entered for that amount and it is from this that the appeal stems.
It is first necessary to consider whether the Jury was perverse in answering questions (2) and (3) affirmatively . The test appears to be whether any Jury acting reasonably could come to such a conclusion. Mr Gardiner for the Appellant has urged that there was not sufficient evidence to justify the finding of the Jury. It is unnecessary for him to say that there was no evidence. That is not the test. He drew attention to the evidence of the Defendant on the writing and delivery of the letter. His submission was that, if this evidence was accepted, there was certainly no publication, and it was not contended at the hearing that there was publication to anyone other than the Plaintiff's husband, but that if the Defendant's evidence was not accepted there was still no sufficient evidence thereby a Jury, acting reasonably, could have come to a conclusion in favour of the Plaintiff.
It is necessary therefore to examine the evidence given by the Plaintiff and on her behalf, and Mrs Lane relied on a number of matters which she submitted showed that the Defendant anticipated that the letter would be opened and read by someone other than the Plaintiff. It was conceded that regard should be had to the contents of the letter as question (2) involved consideration of the Defendant's state of mind. The principal points she relied on were (1) the address on the letter was typewritten, (2) the letter was unsigned and there was nothing on it to indicate by whom it was sent, (3) the letter was not stamped, nor was it marked "private", (4) the envelope was a manilla envelope of the type frequently used for business correspondence. It was submitted that these matters were in themselves sufficient to warrant the finding of the Jury but there was added reason in the first sentence of the defamatory letter; "For the way you treated Mrs Richardson today I am going to show you up in every way I possibly can". lt was argued that these words were more consistent with the publication of the letter than otherwise. The husband in his evidence gave as his reason for opening the letter that he thought "it was an election address". It is difficult to understand why he should have thought this in the circumstances of the case, except that there was a local election pending. But that is not a matter for our consideration. What has to be decided is the attitude of mind of the Defendant, not that of the Plaintiff's husband, and it is difficult to see why the Defendant should have anticipated that the Plaintiff's husband or anyone else should make a mistake of that kind. My view of the evidence is that none of the matters relied on, taken together or severally, tends to show that the Defendant anticipated that someone other than the Plaintiff would read that letter, and in consequence I have come to the conclusion that the finding in answer to question (2) was perverse, and cannot be allowed to stand.
If question (2) is to be answered in the negative, question (3) is still left open for consideration. The question there, which was answered in the affirmative by the Jury, is: "Was it a natural and probable consequence of the Defendant's writing and delivery of the letter that the Plaintiff's husband would open and read the letter?" Again, in my judgment, this answer was perverse. It is to be remembered that the envelope was sealed by using the gum provided and also by the use of a piece of sellotape applied in such a way as to be an effective sealing device. Surely it cannot be assumed that it is a general practice for one spouse to open the letters of the other, and there was no evidence that the Defendant knew that it might happen in this case. Indeed, the evidence of the husband is that in his experience election addresses were usually delivered in unsealed envelopes, and he gave no other cogent reason for opening the letter apart from saying that from time to time requests for the delivery of coal were pushed through the letterbox by his customers. I find it very difficult to accept, and do not accept, that it was a natural and probable consequence of the Defendant's writing and delivery of the letter that the plaintiff's husband would open and read it, that is, that he would make the mistake he says he made. I come to this conclusion after taking into account the other matters which have been urged in favour of the Jury's answer to question (3). There is, in my judgment, no ground for it. It was perverse.
If the conclusion I have come to is the right one, the question of damages does not arise, as judgment must necessarily be given for the Defendant. But my brethren are of a different view with regard to the answers to questions (2) and (3). It is necessary therefore to consider the question of damages. The Jury awarded the sum of £500, and this is wrong if it was assessed in respect of matters other than publication to the Plaintiff's husband. Mr Gardiner submits that the Jury was invited to assess damages on a wider basis. He referred to certain passages in the transcript of the Summing Up. First of all, at the bottom of page 16 the learned Judge says: "Both learned Counsel have dealt accurately with the question of damages". He then referred on the next page to certain matters of which she complains: "She is not treated with the same respect. She was returned to the Council with a smaller majority. She is quite unable to sleep. She is quite unable to cope with the development of the land". It is difficult to understand now these matters, or any of them, can be the consequence of publication to the husband. But the question is whether the Jury are likely to have taken any of them into consideration. Mr Gardiner prays in aid a passage on page 18 (B) of the transcript...
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Ronald Terance Stocker v Nicola Stocker
...by third parties, who took them out of their envelopes, sealed in one instance and not in the other, to read them. In the first, Theaker v Richardson [1962] 1 WLR 151, a husband opened a sealed letter addressed to his wife written by the defendant. The Court of Appeal refused to interfere w......