Tolley v J. S. Fry & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | Viscount Hailsham,Viscount Dunedin,Lord Buckmaster,Lord Blanesburgh,Lord Tomlin |
| Judgment Date | 23 March 1931 |
| Judgment citation (vLex) | [1931] UKHL J0323-3 |
| Date | 23 March 1931 |
| Court | House of Lords |
[1931] UKHL J0323-3
Viscount Hailsham.
Viscount Dunedin.
Lord Buckmaster.
Lord Blanesburgh.
Lord Tomlin.
House of Lords
After hearing Counsel, as well on Thursday the 30th as on Friday the 31st, days of October last, upon the Petition and Appeal of Cyril Tolley, of 74, St. James's Street, in the County of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 25th of November, 1929, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of J. S. Fry and Sons, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 25th day of November 1929, complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That Judgment be entered for the Appellant for damages to be assessed, and that a New Trial be had between the parties for the assessment of such damages: And it is further Ordered, That the Costs incurred by the Appellant in respect of the trial before Mr. Justice Acton be taxed by one of the Taxing Masters of the Supreme Court of Judicature, and paid by the said Respondents to the said Appellant; And it is further Ordered, That the Respondents do also pay, or cause to be paid, to the Appellant the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That each party do bear and pay their own Costs in the Court of Appeal: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The plaintiff in this case is a well-known amateur golfer. The Defendants are manufacturers of chocolate in various forms.
In the month of June 1928, the Defendants published in the "Daily Sketch" and "Daily Mail", newspapers enjoying a large circulation in London and the provinces, a caricature of the Plaintiff which represented him in golfing costume having just completed a drive, with a packet of the Defendants' chocolate protruding from his pocket, in the company of a caddie who is holding up packets of the Defendants' chocolate; below the caricature was a limerick in the following terms:—
"The caddie to Tolley said, Oh, Sir,
Good shot, Sir! That ball, see it go, Sir,
My word how it flies,
Like a cartet of Frys,
They're handy, they're good, and priced low, Sir."
The caricature and the limerick were surrounded with descriptions of the merits of the Defendants' chocolates, and the whole was plainly an advertisement of the Defendants' goods.
The Plaintiff thereupon brought this action for damages for libel. He did not complain of the caricature or the words as being defamatory in themselves; but the innuendo alleged that the "Defendants meant and were understood to mean that the Plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the Defendants' chocolate, that he had done so for gain and reward, that he had prostituted his reputation as an amateur golf-player for advertising purposes, that he was seeking notoriety and gain by the means aforesaid, and that he had been guilty of conduct unworthy of his status as an amateur golfer."
At the conclusion of the Plaintiff's, case, the Defendants submitted that there was no case to go to the Jury; the Judge overruled this contention and the Jury found a verdict for the Plaintiff for £1,000 damages. From this decision the Defendants' appealed, asking for a new trial on the grounds that the damages were excessive, and further asking for judgment on the ground that the Judge ought to have ruled that there was no case to go to the Jury. The Court of Appeal came to the conclusion that the damages were excessive, and that there ought in any event to be a new trial on that ground; but the majority of the Court further held that there was no case to leave to the Jury and accordingly directed that judgment should be entered for the Defendants. From this latter decision the present appeal is brought to your Lordships' House.
My Lords, from the foregoing narrative it is plain that in order to succeed, the Plaintiff must satisfy the Jury that the publication complained of was capable of some, at least, of the meanings attributed to it in the innuendo, and that those meanings were defamatory.
The oral evidence adduced by the Plaintiff, apart from his own testimony, was that of a Mr. Storey, an eminent amateur golfer, and Mr. Hobson, a Secretary of two well-known golf clubs. Mr. Storey said "If an amateur golfer lent himself to a scheme for advertising, a great many people would think he was not maintaining his amateur status. It would damage his reputation as an amateur golfer." Mr. Hobson said, "If an amateur lent himself, as a golfer, to the advertisement of people's goods, I think he would be called on to resign the membership of any reputable club." No evidence was called to contradict this testimony; and it seems to me that if the Jury accepted that evidence, they were bound to reach the conclusion that if the publication conveyed the meaning that the Plaintiff had lent himself to the Defendants' advertising scheme, it was defamatory. There remains, however, the question whether the publication was capable of bearing that meaning. If it was capable of such a meaning, then it seems to me that the Judge was bound to leave the case to the Jury. The case is unusual in that the defamatory innuendo does not depend upon the words used of the Plaintiff, but solely upon the circumstances in which the publication takes place. The argument for the Defendant was that there was no evidence called to prove that well-known persons were in the habit of allowing their names to be used for advertising purposes, and that in the absence of such evidence a Jury could not be allowed to reach the conclusion that the publication impliedly represented that the Plaintiff had given such permission.
My Lords, I gravely doubt whether any such evidence was necessary. The question here does not depend upon a state of facts known only to some special class of the community, but to the inference which would be drawn by the ordinary man or woman from the facts of the publication. It is always difficult to determine with precision the amount of judicial knowledge which is permissible to a Judge or Jury; but I am not satisfied that it would not be open to a Jury acting on their own knowledge as ordinary citizens, to assume that no reputable firm would have the effrontery and bad taste to take the name and reputation of a well-known man for an advertisement commending their goods without first obtaining his consent. But if evidence was necessary, I think it is to be found in the correspondence between the Defendants and their Advertising Agency, which was put in at the trial. No objection was taken either in the Courts below or at the Bar of your Lordships' House, to the admissibility of this correspondence as a correct statement of the opinions of the writers. From this correspondence it appears that about six months before the date of the publication complained of, the Defendants had been considering the possibility of using the names of a number of well-known men and women in various walks of life, to commend their goods and advertise their merits. Apparently they had been conscious from a very early date that some of the persons with whom they were proposing to take this liberty, would be likely to object; and Counsel's opinion was taken as to whether each individual caricature could be regarded as libellous. The Defendants expressed themselves as unwilling to allow their Agents to ask the consent of the persons whose names they were proposing to use because, as they said, they felt that this was "rather bad form." Why it should be regarded as bad form to ask the consent of any individual to the use of his name in this manner, and yet unobjectionable to use his name without his consent, I am unable to Understand. However, from the correspondence it appears that a number of the proposed caricatures were ruled out as being libellous, but that the caricature of the Plaintiff was passed by Counsel as not being in itself defamatory.
Whilst this correspondence was proceeding, there was a suggestion that Mlle. Suzanne Lenglen's caricature should be used in the course of the campaign. Mlle. Suzanne Lenglen is a well-known professional lawn tennis player. Early in June 1928, the Defendants suggested that Mlle. Suzanne Lenglen should be omitted and that either Miss Helen Wills or Miss Betty Nuthall should be substituted. Miss Wills and Miss Nuthall are well-known amateur lawn tennis players. To this suggestion the Defendants' Advertising Agents replied on the 4th June in the following terms:—
"You return the Suzanne Lenglen lay-out with the suggestion that we should feature either Helen Wills or Betty Nuthall instead. We feel that there are several things which make this undesirable. Firstly, both Betty Nuthall and Helen Wills are amateurs, and in tennis circles even more than in golf circles the amateur status must be very carefully guarded, hence if Cyril Tolley has any quarrel with us, it...
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