Waters v Sunday Pictorial Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER |
| Judgment Date | 18 May 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0518-3 |
| Court | Court of Appeal |
| Date | 18 May 1961 |
[1961] EWCA Civ J0518-3
In The Supreme Court of Judicature
Court of Appeal
(Interlocutory List)
Lord Justice Willmer and
Lord Justice Danckwerts
MR. LEONARD LEWIS (instructed by Messrs. A.L. Phillips & Co.) appeared as Counsel on behalf of the Appellant (Plaintiff).
MR. DAVID HIRST (instructed by Messrs. William Charles Crocker) appeared as Counsel on behalf of the Respondents (Defendants).
This is the Plaintiff's appeal, brought with the leave of the learned Judge, from an Order made in Chambers by Mr. Justice Hinchcliffe on the 17th March, 1961. By his Order the learned Judge dismissed an appeal by the Plaintiff against an Order of Master Jacob refusing to strike out certain paragraphs of the Defendants' Defence.
The Plaintiff's action is for libel in respect of an article published in "The Sunday Pictorial" on the 9th August, 1959. It is admitted that the words complained of are defamatory. But the Defendants, by their Defence, raised a number of defences, which included, first, a plea of justification; second, a plea of fair comment made bona fide and without malice on a matter of public interest; thirdly, a plea (as to part of the words complained of) that they are a fair and accurate report published bona fide and without malice of judicial proceedings; and, fourthly, a plea in mitigation of damages, that, as the result of certain judicial proceedings, the Plaintiff had already been brought into scandal, odium and contempt.
It is not necessary for the purposes of this appeal to read in full the article complained of, which is fully set out in the Statement of Claim. For the purposes of the questions before us, it is sufficient to say that the gist of the complaint is that the article referred to the Plaintiff by name as "a notorious, dodgy operator of London slum properties", and in another passage as "this wily dodger". The article also set out that he was "the man whose estate agency was described in 1953 by Lord Goddard, then Lord Chief Justice, as 'a fraudulent business from beginning to end'".
The portions of the Defence sought to be struck out were those in which it was sought to rely on certain judicial proceedings in which the Plaintiff had been involved. These judicial proceedings were three in number. First, there was a criminal prosecution in 1953 on an indictment charging the Plaintiff with a number of offences of dishonesty. The Plaintiff was convicted on eleven out of fourteen counts; but, on appeal to the Court of Criminal Appeal, all the convictions were quashed on the ground that the Summing Up was defective. It was in the course of those proceedings in the Court of Criminal Appeal that the learned Lord Chief Justice made the observation to which I have already referred. Secondly, there was a civil action in 1954 in the Lambeth County Court, which was brought by a company in which the Plaintiff was interested in respect of a mortgage on a dwellinghouse. It is alleged that, in the course of giving judgment dismissing the claim, the learned County Court judge made certain observations suggesting frand on the part of the Plaintiff. Thirdly, there were also in 1954 certain proceedings in the Court of Appeal brought by two other companies in which the Plaintiff was interested for possession of certain house property. The Court of Appeal held that the leases were forfeited to the Crown under the Mortmain and Charitable Uses Act, 1888. But the members of the Court made certain observations by way of adverse criticism of the respective companies.
Some or all of these three judicial proceedings are relied on by the Defendants as part of their defence under all the four heads of defence to which I have already referred.
The application to strike out parts of the Defence was said to be based on Order 19, Rule 27, and Order 25, Rule 4, and also on the inherent juriadiction of the Court. These Rules provide for a variety of reasons for striking out a pleading; but the only reason advanced in argument before us has been that the particular paragraphs of the Defence which are attacked are said to disclose no reasonable answer to the Plaintiff's claim. It seems, therefore, that the only Rule really in question here is Order 25, Rule 4.
It is well-established that the drastic remedy of striking out a pleading, or part of a pleading, cannot be resorted to unless it is quite clear that the pleading objected to discloses no arguable case. Indeed, it has been conceded before us that the Rule is applicable only in plain and obvious cases. It is, perhaps, not without significance that we managed to spend the whole of the day yesterday in listening to an argument as to whether or not the matter objected to did set up an arguable case.
For the purposes of this appeal, we are not in any way concerned as to whether any of the defences raised is likely to be successful. The sole question in relation to each of the four headings is whether the case sought to be set up is so unarguable that it ought to be struck out in limine. I have come to the conclusion, in relation to each of the four headings, that it is quite impossible for us to take this drastic course.
Having stated that conclusion, I propose to say as little as possible as to the merits of the various defences raised, for I do not wish anything I may say now to prejudice the eventual trial of the action. It is, however, necessary to describe how the application arises in relation to each of the four heads of defence.
As to the plea of justification, the application is to strike out four sub-paragraphs of the Particulars of Justification, in which are set out the observations of the various Judges in the course of the judicial proceedings to which I have referred. It is contended that what the various learned...
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