B e f o r e :
THE VICE-CHANCELLOR (Sir Donald Nicholls)
LORD JUSTICE BUTLER-SLOSS
SIR MICHAEL KERR
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LINDA KAREN JOYCE
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v.
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(1) KIM SENGUPTA
(2) NEWS (UK) LIMITED
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(Transcript of The Association of Official Shorthandwriters Limited, Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)
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MR GEOFFREY ROBERTSON Q.C. and MR ANDREW NICOL, instructed by
Messrs Stephens Innocent, appeared for the Appellant (Plaintiff).
MR DESMOND BROWNE Q.C., instructed by Messrs Theodore Goddard, appeared for the Respondents (Defendants).
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HTML VERSION OF JUDGMENT
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THE VICE-CHANCELLOR: In 1989 Miss Linda Joyce was employed by Her Royal Highness the Princess Royal as her lady's maid. On 25th April the Today newspaper published an eye-catching article written by its chief crime correspondent, Mr Kim Sengupta. The banner headlines on the front page read "ROYAL MAID STOLE LETTERS" and "Sacked as Anne names the culprit". The material part of the article read:
"The thief who stole Princess Anne's intimate letters has been tracked down by police.
She is a royal maid who has been interviewed by detectives four times.
The Princess had told police that she believed the maid was the culprit and that she acted out of spite when she handed the four letters, written by the Queen's Equerry, to a national newspaper.
After the theft, Anne immediately ordered that the maid should not go into rooms where there might be confidential papers.
The servant, who is unmarried, will now be dismissed from royal service.
As TODAY revealed two weeks ago, she will not be prosecuted. Buckingham Palace has told Scotland Yard that the Queen does not want the adverse publicity a court case will inevitably bring.
But the maid will have to give a written guarantee that she will not discuss the sensitive letters from Commander Tim Laurence either in Britain or abroad. The woman, who has travelled abroad on royal tours, has repeatedly denied the allegation despite intense grilling by the Yard's Serious Crime Squad under Det Chief Supt Roy Ramm.
Her fingerprints were taken at Anne's home, Gatcombe Park in Gloucestershire, and will now be compared with forensic clues from the intimate notes. The results will be known within a week.
Police have discovered that the maid had been on bad terms with the Princess for a long time. Anne had told her off several times. The maid has also complained to colleagues about poor pay and conditions.
A senior detective said: 'This appears to be a classic case of a woman who feels she has been wronged. We have little doubt she is the guilty party and are now awaiting forensic confirmation.'
'Even if we get the proof we cannot prosecute. The matter will be decided behind closed doors by the Palace...'"
The article clearly referred to the plaintiff, and it contained several assertions regarding her. In particular, the article said that she had stolen her royal employer's intimate letters, she had handed the letters to a national newspaper, she had been ordered not to go into rooms where there might be confidential papers, and she had been or was about to be dismissed.
One might expect that proceedings for libel would have followed. The article was grossly defamatory. The newspaper did not publish any retraction or apologies, although it has not sought to say that the assertions of fact were true. However, there was a difficulty confronting the plaintiff. She did not have the money needed to pursue proceedings at her own expense, and legal aid is not available for defamation proceedings. There is an express provision to this effect in the Legal Aid Act 1988 (see schedule 2, part 2, paragraph 1).
Nothing daunted, the plaintiff's legal advisers formulated a claim against Mr Sengupta and News (U.K.) Limited, the publisher of the newspaper, for malicious falsehood. In law this is a different cause of action, with different ingredients, from a claim for defamation. Unlike defamation, malicious falsehood is a type of proceedings for which legal aid is available. Legal aid to bring proceedings for malicious falsehood was granted to the plaintiff, and this action followed. A writ was issued on 31st August 1990, and the statement of claim was served on 21st September. The defendants then applied to strike out the statement of claim as an abuse of the process of the court. On 12th December 1990 Mr Gilbert Gray Q.C., sitting as a Deputy High Court Judge, acceded to that application. He decided that a case of defamation had been forced into the ill-fitting garb of an action for malicious falsehood. The case could not be pleaded properly as malicious falsehood because it was in essence a case of libel. From that decision the plaintiff has now appealed.
The plaintiff's claim
The plaintiff seeks an opportunity to amend her statement of claim, so I work from the latest version of the proposed amendments. Miss Joyce's case is that the article contains several serious untruths regarding her: contrary to what is said in the article, she did not steal the letters, she was not banned from rooms containing confidential documents, she was not dismissed in consequence, she was not required to undertake that she would not discuss the letters, and she was not on bad terms with the Princess. She has left her employment with Princess Anne. She did so on 5th May 1989, following a letter of resignation written months earlier in January 1989, but her resignation was for personal reasons unconnected with the statements in the Today article.
Miss Joyce asserts that the article was published maliciously: Mr Sengupta who wrote the article and the sub-editor who chose the headline "Royal maid stole letters" were recklessly indifferent about the truth or falsity of the serious allegations. Mr Sengupta took no steps to check the police suspicions on which he says he relied; he did not speak to the plaintiff, he made no independent investigations, he did not even await the outcome of the fingerprint tests mentioned in the article.
Miss Joyce claims damages. The article falsely portrays her as untrustworthy. This has damaged her future employment prospects. She also claims exemplary damages, and an injunction against repetition.
Malicious falsehood and defamation
Before turning to the issues raised by the appeal I should comment briefly on the difference between defamation and malicious falsehood. The remedy provided by the law for words which injure a person's reputation is defamation. Words may also injure a person without damaging his reputation. An example would be a claim that the seller of goods or land is not the true owner. Another example would be a false assertion that a person has closed down his business. Such claims would not necessarily damage the reputation of those concerned. The remedy provided for this is malicious falsehood, sometimes called injurious falsehood or trade libel. This cause of action embraces particular types of malicious falsehood such as slander of title and slander of goods, but it is not confined to those headings.
Falsity is an essential ingredient of this tort. The plaintiff must establish the untruth of the statement of which he complains. Malice is another essential ingredient. A genuine dispute about the ownership of goods or land should not of itself be actionable. So a person who acted in good faith is not liable. Further, since the object of this cause of action is to provide a person with a remedy for a false statement made Maliciously which has caused him damage, at common law proof of financial loss was another essential ingredient. The rigour of this requirement was relaxed by statute. I shall have to return to the question of damages at a later stage. For present Purposes it is sufficient to note that if a plaintiff establishes that the defendant maliciously made a false statement which has caused him financial damage, or in respect of which he is relieved from proving damage by the Defamation Act 1952, the law gives him a remedy. The false statement may also be defamatory, or it may not. As already mentioned, it need not be defamatory. Conversely, the fact that the statement is defamatory does not exclude a cause of action for malicious falsehood, although the law will ensure that a plaintiff does not recover damages twice over for the same loss.
Abuse of process: (1) no right to trial by "jury
It is as plain as a pikestaff that had legal aid been available for libel, this action would have been a straightforward defamation action. In an action for malicious falsehood the plaintiff has to take on the burden of proving that the words were false and that in publishing them the defendant was actuated by malice. It would make no sense for Miss Joyce to take on this burden. If this had been a defamation action she would not have to prove malice, and if the newspaper wished to put in issue the truth of the defamatory assertions it would have to plead and prove justification as a defence.
One consequence of this action being a claim for malicious falsehood and not defamation is that there is no absolute right to a trial by jury. With certain exceptions not applicable to this case, either party to an action has a right to have the action tried with a jury where there is in issue a claim in respect of libel, slander, malicious prosecution or false imprisonment (section 69(1) of the Supreme Court Act 1981). In cases outside section 69(1) there is no such right, although the court retains a discretion to order trial with jury. Counsel for the defendants submitted that trial by jury in defamation actions is a constitutional right of newspapers. He reminded us of the observation of Lord Denning M.R. in Rothermere v. Times Newspapers Ltd [1973] 1 W.L.R. 448, 452, that every defendant who is charged with libel, either in criminal or civil proceedings, has a "constitutional right to have his guilt or innocence determined by a jury." In Sutcliffe v. Pressdram Ltd [1991] 1 Q.B. 153, 181, Nourse L.J. referred to "the primacy of the jury" in defamation cases and that this had been settled by Fox's Libel Act 1792.
Against this background counsel submitted that the present action should be struck out by the court as an abuse of process because it is based on a secondary tort which deprives the defendants of their absolute right to have a jury trial. This right is a legitimate juridical advantage they would have had if the plaintiff had relied on the primary tort. By a "secondary tort" was meant a tort which would not be relied upon save for the plaintiff's need to secure a collateral purpose unrelated to the merits of her claim.
I am not able to accept this submission. The concept of a legitimate juridical advantage has been taken from the field of conflict of laws where an issue arises over the country in which a dispute between the parties should be determined. The issue there concerns which of two countries, with their different laws and legal systems, would be the more appropriate forum.
I can see no place for that concept in wholly domestic proceedings. English law has marked out causes of action on which plaintiffs may rely. Many causes of action overlap. On one set of facts a plaintiff may have more than one cause of action against a defendant. He may have a cause of action in tort and also for breach of contract. This is an everyday occurrence with some claims for negligence, or with claims for breach of confidence. Again, a plaintiff may have a cause of action for breach of contract and for breach of fiduciary duty. This also is a frequent occurrence with claims against directors of companies. Or a plaintiff may have more than one cause of action in tort: a factory accident may give rise to a claim in negligence and for breach of statutory duty. These instances could be multiplied. When more than one cause of action is available to him, a plaintiff may choose which he will pursue. Usually he pursues all available causes of action, but he is not obliged to do so. He may pursue one to the exclusion of another, even though a defence available in one cause of action is not available in another. Indeed, the availability of a defence in one cause of action but not another may be the very reason why a plaintiff eschews the one and prefers the other. Limitation is an example of such a defence. I have never heard it suggested before that a plaintiff is not entitled to proceed in this way, and take full advantage of the various remedies English law provides for the wrong of which he complains. I have never heard it suggested that he must pursue the most appropriate remedy, and if he does not do so he is at risk of having his proceedings struck out as a misuse of the court's procedures. In my view those suggestions are as unfounded as they are novel.
I add one further comment regarding the particular context of defamation actions and trial by jury. I shall return to the question of legal aid. Legal aid apart, there is no reason to suppose that in future persons who are the subject of defamatory articles in newspapers will be queuing up to issue writs for Malicious falsehood. It would make no sense for them to do so, and take on the burden of proving malice and, if successful, still not be able to recover damages for loss of reputation.
I return to the present case and add this. The plaintiff is not seeking to avoid a trial by jury. That is not the reason why there is no claim for defamation. As it is, the court retains a discretion to order that the action be tried with a jury. Through her counsel the plaintiff has said she would not oppose any application the defendants may wish to make for a jury in this case. I can detect no improper use of the court's process by the plaintiff.
Abuse of process: (2) "economic lunacy" and legal aid
Mr Browne's second submission was as bold as his first. He submitted that another reason why this action is an abuse is that only nominal damages, or at best modest damages of a few hundred pounds, will be recoverable by the plaintiff. The amount she stands to obtain is wholly out of line with the costs each side will incur. In practice the defendants will never recover their costs even if they are successful in defending the action and even if they make a payment into court of an amount in excess of any damages awarded at the trial. Mr Browne submitted that, so far as the plaintiff is concerned, the action is "economic lunacy", given that any damages awarded to her will be swallowed up by the Legal Aid Board's charge over them as property recovered in the proceedings. Public funds are being used to support the plaintiff in a wholly uneconomic way.
With all respect to counsel, this is a hopeless submission. I shall consider later the question of damages. For the moment let me assume that the defendants are correct in submitting that the plaintiff is unlikely to recover more than a few hundred Pounds in damages. I shall make that assumption although I am not to be taken as endorsing it. Even so I do not see how it follows that this action should be struck out as an abuse. The plaintiff's main purpose in bringing this action is to clear her name. If she wins, she will succeed in doing so. Compared with a libel action, the amount of damages she may recover in malicious falsehood may be small, but there is no reason why she should not be entitled to pursue such a claim. I see no justification for the court stopping her action. The defendants, it must be borne in mind, are resisting her claim in its entirety. The prospect that they are unlikely to recoup their costs even if their defence is wholly successful is an unfortunate fact of everyday life for many defendants when sued by legally aided plaintiffs.
The reality here is that the defendants are unhappy that the plaintiff has obtained legal aid to pursue the action. They fear that if this action is permitted to proceed, the floodgates will be opened. The Legal Aid Board will be flooded with applications for legal aid to pursue claims for malicious falsehood against newspapers. Newspapers will be faced with the prospect, not intended by Parliament, of legally aided plaintiffs pursuing claims against them founded on defamatory articles.
As to these fears, it is vital to keep in mind that the decision on whether or not to grant legal aid has been entrusted by Parliament to the Legal Aid Board, not the court. Parliament has prescribed a framework of limitations and conditions but the Legal Aid Board retains a discretion. A person whose financial resources make him eligible for legal aid must satisfy the board that he has reasonable grounds for taking, defending or being a party to the proceedings (section 15(2) of the Legal Aid Act 1988). He may be refused representation if in the particular circumstances of the case it appears to the board unreasonable he should be granted representation (section 15(3)). Representation may be granted with or without limitations and may be amended, withdrawn or revoked (section 15(4)). Regulation 28 of the Civil Legal Aid (General) Regulations 1989 underscores the duty of the area director to consider the overall merits of each case:
"Without prejudice to the generality of section 15(2) or (3) of the Act, an application for a certificate shall only be approved after the Area Director has considered all the questions of fact or law arising in the action, cause or matter to which the application relates and the circumstances in which the application was made."
These provisions show that in reaching its decision the board takes into account a wide range of factors. One factor is the probable cost of the proceedings: see W.F. Marshall Limited v. Barnes & Fitzpatrick [1953] 1 W.L.R. 639, 649. Another is that it may be unreasonable for legal aid to be continued if a legally assisted plaintiff refuses to accept a reasonable offer or a payment made into court by a defendant. In the present case a further factor to be taken into account by the board is the policy underlying the legislature's exclusion of proceedings wholly or partly in respect of defamation from the scope of civil legal aid. These factors are material to the board's decision, but they are not material to a decision by the court on whether to permit a properly-constituted action to proceed to trial or to stop it summarily as a misuse of the court's processes.
If the defendants consider legal aid should not have been granted in this case one course open to them is to take up the matter with the Legal Aid Board. This is commonly done by unassisted parties. Frequently an unassisted defendant goes to the board and asks for a legal aid certificate to be revoked when a legally assisted plaintiff has declined a reasonable offer. Further, if these defendants consider they have grounds for contending that the board misdirected itself or that the decision to grant legal aid was unreasonable in the Wednesbury sense, an application for judicial review of the board's decision is another course open to them. Those are remedies available to the defendants with regard to the board's decision.
I hasten to add that I do not mention these points with a view to encouraging the defendants to challenge the board's decision. I am not to be taken as hinting that the board's decision was erroneous. I express no view either way on that matter. I mention these points only because it is important to appreciate that the defendants' submission raises two distinct questions; one of these questions is before us on this appeal and the other is not. One question is whether legal aid should have been granted. That question is not before us. The other question is whether, legal aid having been granted, this action should be permitted to continue even if, as the defendants assert, at most only modest damages will be recoverable. On this second question the fact that the plaintiff is legally aided is neither here nor there. In general the rights conferred on assisted persons by the Legal Aid Act "shall not affect the rights or liabilities of other parties to the proceedings or the principles on which the discretion of any court or tribunal is normally exercised" (section 31(1)). Once this is appreciated, there is nothing left of the defendants' second submission.
Abuse of process: (3) the action is bound to fail
The defendants' third submission was that the action is incapable of success and should be struck out summarily. The jurisdiction the defendants invoke here is well established.
The court will not permit an action to go to trial if plainly and obviously it cannot succeed. But when exercising this jurisdiction the court is careful not to conduct a summary trial on affidavit evidence without the benefit of discovery of documents and cross-examination of witnesses on disputed questions of fact. If there is an issue or dispute that ought to be tried, the action must go to trial.
Whether this action is bound to fail turns on a consideration of the statement of claim and the affidavit evidence. I approach this issue having in mind that, but for the legal aid complication, this would be a defamation action. It is right to scrutinise the allegations of malice and damage with particular care.
So far as the statement of claim is concerned I am satisfied that, although open to criticism here and there, it does disclose the essentials of a cause of action for malicious falsehood. It is susceptible to a request for further particulars in some respects, but the omissions are not so serious or incapable of being made good that the defendants will be embarrassed in the conduct of their defence.
The judge took a different view. He considered that the particulars of malice were hopelessly inadequate, but he had before him an earlier version of the statement of claim. The draftsman of the pleading has taken note of the criticisms, and the draft before us reflects this. Essentially, the plaintiff's case on malice is that the defendants went ahead and published the police suspicions as though they were fact and did so without taking any steps to check or verify them. This showed a calculated, reckless indifference to the truth or falsity of the allegations. Malice is to be inferred from the grossness and falsity of the assertions and the cavalier way they were published. In my view the pleading raises an arguable issue, and it does so in terms sufficient to inform the defendants of the case against them.
I turn to the evidence. Mr Sengupta has made an affidavit setting out the circumstances in which he wrote the article. He refers to conversations with senior police officers. The police told him they were convinced Miss Joyce had stolen the letters. Mr Sengupta tried to reach her on the telephone but was unable to do so. He had no antipathy to her. He honestly believed that what he wrote was true. There are other affidavits produced by the defendants, including one from the editor of Today. The judge seems to have proceeded on the footing that he should accept this affidavit evidence when there was no affidavit evidence on the other side about Mr Sengupta's state of mind. I think the judge fell into error on this. The plaintiff does not accept the accuracy of Mr Sengupta's evidence. In the nature of things she is not in a position to produce evidence to the contrary effect. That should not deprive her of the opportunity to question Mr Sengupta, with a view to persuading the judge or jury that he is not to be believed. In some cases a plaintiff's case will be so weak that a trial is not necessary, but that is not this case. Indeed, had this been a libel action in which a plea of malice had been raised, I do not believe the defendants would have attempted to strike out the plea summarily as one which was bound to fail at trial.
The other matter which weighed with the judge concerned the damage alleged in the statement of claim. The judge was impressed by the plaintiff's letter of resignation. It was clear she had decided that her days as a private personal maid to other ladies, no matter of what status or high degree, were finished. She had indicated her desire to leave service as a ladies' maid before the article was published. This was inconsistent with publication of the article having caused her any special damage. As to this, all I need say is that the damages allegation has now been amended. I did not understand Mr Browne to contend that in its present form the damages claim is bound to fail.
Damages
I turn to the points raised regarding damages. The plaintiff claims, first, that she suffered financial loss in consequence of the Today article. Having regard to the nature and prominence of the assertions in the article, her chances of finding work in any employment requiring trust and confidence have been diminished. Secondly, she relies on section 3 of the Defamation Act, which provides:
"(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-
a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or
(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication."
The plaintiff relies on paragraph (a). She alleges that the article was likely to cause pecuniary damage to her by seriously prejudicing her opportunity to obtain other employment requiring trust and confidence.
On this interlocutory appeal it would be wholly inappropriate for us to attempt to go into the detail of the evidence which may properly be called in support of these claims. Suffice to say, on the first claim the plaintiff will need to give particulars of the financial loss she claims to have suffered sufficient to ensure that the defendants would not be taken by surprise by any evidence she may adduce on the amount of her loss.
As to the second claim, this is an allegation of general damage. In support of this claim the plaintiff cannot adduce evidence of actual loss: see Lord Denning M.R. in Calvet v. Tomkies [1963] 3 All E.R. 610, 611. I do not accept, however, that in consequence the award under this head must necessarily be nominal only. In Fielding v. Variety Incorporated [1967] 2 Q.B. 841 the malicious falsehood lay in falsely describing the "Charlie Girl" show in London as a disastrous flop. Only nominal damages of £100 were awarded in that case because there was no likelihood of the words damaging the success of the show in London or prejudicing the chances of a production in the United States. That case is not authority for the proposition that, in the absence of evidence of actual loss, a plaintiff who relies on section 3 can recover only nominal damages. The whole purpose of section 3 was to give the plaintiff a remedy in malicious falsehood despite the difficulty of proving actual loss. A plaintiff is seldom able to call witnesses to say they ceased to deal with him because of some slander that had come to their ears. In consequence actions for malicious falsehood had become extremely rare: see the report of Lord Porter's committee on defamation (1948 Cmd. 7535, paragraphs 50 to 54). Section 3 was enacted to right this injustice. The section would fail in its purpose if, whenever relied on, it could lead only to an award of nominal damages.
Damages for distress and injury to feelings
The plaintiff claims, thirdly, that as a consequence of the article she suffered anxiety, distress and injury to her feelings. Mr Browne submitted that this third head of damages is irrecoverable as a matter of law and should be struck out. Mr Robertson contended that although at common law proof of pecuniary damage was an essential ingredient of the tort, once pecuniary loss is established, or a claim under section 3 is made out, a plaintiff is entitled to recover his whole loss. If he suffered mental distress, the law will include an award of damages under this head also.
The point seems never to have been decided. As already noted, it is well settled that at common law proof of "special damage" is an essential ingredient in this cause of action. At common law if such damage is not established the action will fail. Lord Robertson emphasised this in The Royal Baking Powder Company v. Wright, Crossley & Co. (1900) 18 R.P.C. 95, 103:
"Unless the Plaintiff has in fact suffered loss which can be and is specified, he has no cause of action. The fact that the Defendant has acted maliciously cannot supply the want of special damage, nor can a superfluity of malice eke out a case wanting in special damage."
With one exception there is no authority dealing expressly with the question whether, if pecuniary loss is established, a plaintiff can also recover damages for anxiety and distress. The authorities are silent on the point. Thus so far as the reported decisions go, they show that an award of "parasitic" damages under this head has never been made for malicious falsehood. The one exception is an observation of high authority: in the Fielding case Lord Denning M.R. (at p.850) stated, in the context of a case where section 3 was being relied °n, that the plaintiffs could only recover damages for their probable money loss and not for their injured feelings.
This state of the authorities suggests that damages for anxiety and distress are not recoverable for malicious falsehood. If that is the law it could lead to a manifestly unsatisfactory and unjust result in some cases. Take the example I gave earlier of a person who maliciously spreads rumours that his competitor's business has closed down. Or the rumour might be that the business is in financial difficulty and that a receiver will soon be appointed. The owner of the business suffers severe financial loss. Further, because of the effect the rumours are having on his business he is worried beyond measure about his livelihood and his family's future. He suffers acute anxiety and distress. Can it be right that the law is unable to give him any recompense for this suffering against the person whose malice caused it? Although injury to feelings alone will not found a cause of action in malicious falsehood, ought not the law to take such injury into account when it is connected with financial damage inflicted by the falsehood?
One turns to analogous torts for guidance. Inducement of breach of contract is another tort in which proof of damage is an essential ingredient. In Pratt v. British Medical Association [1919] 1 K.B. 244, 251, McCardie J. took humiliation and menace into account when assessing the damages. Likewise in conspiracy: see the direction to the jury in Quinn v. Leathern [1901] AC 495, 498. A close analogy is that of slander in a case where it is actionable only on proof of pecuniary damage. In Lynch v. Knight (1861) 9 H.L.C. 577, 598, Lord Wensleydale said:
"Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone; though where a material damage occurs, and is connected with it, it is impossible a jury, in estimating it, should overlook the feelings of the party interested".
The point bristles with problems, not all of which were explored in argument. One possibility is that in an action for malicious falsehood damages are limited to financial loss. That would mark out a clear boundary, but it would suffer from the drawback of failing to do justice in the type of case I have mentioned. I instinctively recoil from the notion that in no circumstances can an injured plaintiff obtain recompense from a defendant for understandable distress caused by a false statement made maliciously. However, once it is accepted there are circumstances in which non-pecuniary loss, or some types of non-pecuniary loss, can be recovered in a malicious falsehood action, it becomes extremely difficult to define those circumstances or those types of loss in a coherent manner. It would be going too far to hold that all non-pecuniary loss suffered by a plaintiff is recoverable in a malicious falsehood action, because that would include injury to reputation at large. The history of malicious falsehood as a cause of action shows it was not designed to provide a remedy for such injury: the remedy for such loss is an action for defamation in which, incidentally, damages for injury to feelings may be included in a general award of damages: see the Fielding case, per Lord Denning M.R. at p.851 and Salmon L.J. at p.855.
Nor would these difficulties be solved by rejecting damages for distress as a separate head of loss in a malicious falsehood action but permitting distress to be taken into account as an aggravating factor. On this footing the judge or jury could take injury to feelings into account when awarding a lump sum of damages "in the round". I do not see how, if only pecuniary loss is recoverable, the amount awarded can be increased to reflect the plaintiff's distress. That would be a contradiction in terms. It would be to award damages for distress in a disguised fashion. If distress can inflame the damages recoverable for pecuniary loss, the difference between awarding aggravated damages for that reason and awarding damages for distress as a separate head of loss is a difference of words only.
My conclusion is that, on the limited argument addressed to us, it would be undesirable to decide this point. It is an important point of law but only a minor point in the present application. The pleading should be left as it stands and, if need be, this issue can be pursued further at the trial. Taking this course will not significantly affect the preparation of the evidence for the trial.
Conclusion
I would allow this appeal, discharge the judge's order, and give the plaintiff leave to amend her statement of claim.
LORD JUSTICE BUTLER-SLOSS: I agree.
SIR MICHAEL KERR: I agree with the judgment of the Vice-Chancellor and the order which he proposes. I only add a few words on the issues relating to damages. However, I do so with some hesitation, since my remarks refer to authorities which were not canvassed in the arguments before us. I therefore mention them merely as an aide memoire for the sake of completeness.
The first aspect concerns the recoverability of general damages in cases where a plaintiff relies on section 3 of the Defamation Act 1952 because he or she is unable to prove any compensatable pecuniary loss. I agree that in such cases it does not follow at all that he will only recover nominal damages.
As it seems to me, this conclusion flows from a general principle of the law of torts. As shown by the speech of Lord Devlin in Rookes v. Barnard [1964] AC 1129, with which the other members of the House agreed, there are many illustrations of circumstances in which torts are committed which may justify an award of damages beyond mere pecuniary compensation. He said at p.1221:
"It must be remembered that in many cases of tort damages are at large, that is to say, the award is not limited to the pecuniary loss that can be specifically proved. In the present case, for example, and leaving aside any question of exemplary or aggravated damages, the appellant's damages would not necessarily be confined to those which he would obtain in an action for wrongful dismissal. He can invite the jury to look at all the circumstances, the inconveniences caused to him by the change of job and the unhappiness maybe by a change of livelihood. In such a case as this, it is quite proper without any departure from the compensatory principle to award a round sum based on the pecuniary loss proved."
Pausing there, it seems to me that in referring to "a round sum based on the pecuniary loss proved" Lord Devlin was using the word "based" in the sense that the pecuniary loss would provide the core or starting point for the assessment of the ultimate award; not that this must be limited to, or reflect no more than, the proved pecuniary loss. Perhaps this goes without saying, having regard to the context. He went on:
"Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation. Indeed, when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed.
But there are also cases in the books where the awards given cannot be explained as compensatory, and I propose therefore to begin by examining the authorities in order to see how far and in what sort of cases the exemplary principle has been recognised."
Lord Devlin then proceeded to review a long line of cases in which damages of this nature have been awarded, but - wrongly, as he held - under the categorisation of exemplary damages. At p.1226 et seq he then stated that exemplary damages may only be awarded in three categories of cases. These do not matter for present purposes save that it should be mentioned, for completeness, that in the present action there is also a claim for exemplary damages under the second of these categories, "in which the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff." However, we are not concerned with that aspect today.
At p.1228 Lord Devlin then proceeded to deal with the category of damages to which he had referred at p.1221, which should properly be described as aggravated damages. He said: "As I have said, damages that are at large can always be fixed as a round sum. Some juries have in the past been very liberal in their ideas of what a round sum should be, and the courts, which have always been very reluctant to interfere with awards of damages by a jury, have allowed very liberal awards to stand..." And on the following page, after referring to some of the epithets which have been used to describe such damages, he went on:
"But when this has been said, there remains one class of case for which the authority is much more precise. It is the class of case in which the injury to the plaintiff has been aggravated by malice or by the manner of doing the injury, that is, the insolence or arrogance by which it is accompanied. There is clear authority that this can justify exemplary damages, though...it is not clear whether they are to be regarded as in addition to, or in substitution for, the aggravated damages that could certainly be awarded."
He then reviewed a number of further authorities and concluded that exemplary damages could not be awarded in addition to aggravated damages. At p.1230 he said:
"This conclusion will, I hope, remove from the law a source of confusion between aggravated and exemplary damages which has troubled the learned commentators on the subject. Otherwise, it will not, I think, make much difference to the substance of the law or rob the law of the strength which it ought to have. Aggravated damages in this type of case can do most, if not all, of the work that could be done by exemplary damages..."
Many illustrations of cases in which aggravated general damages have been recovered for the commission of various kinds of torts can be found in the text-books. They have been considered, for instance, in the context of the torts of assault, conversion, deceit, false imprisonment, malicious prosecution, trespass and others, and the Vice-chancellor has already referred to conspiracy and inducing breaches of contract. There is therefore no reason whatever why such damages should not also be recoverable for the tort of malicious falsehood, either in addition to special pecuniary loss where this has been pleaded and proved, or as general damages where a plaintiff relies on section 3 of the Defamation Act.
I need hardly add that, in drawing attention to this line of authority, I am not for one moment suggesting that an award of aggravated damages would be appropriate in the present case, even if the plaintiff establishes the necessary ingredients of falsity and malice. That will of course be a matter for the judge or jury if the case goes to trial. My object is solely to demonstrate why there could in my view be no question of striking out this action on the ground that no more than nominal damages could be recovered in any event.
However, while the authorities go thus far in favour of the Plaintiff, they conflict with her contention that damages for distress and injury to her feelings can also be recovered as an additional or separate head of damage, and there is certainly no support for such a contention where the alleged malicious falsehood is defamatory, as in the present case. However, for the sake of completeness, and although the authorities are somewhat confused, (see McGregor, paragraphs 1403-1406), it is worth noting two old cases which support the conclusion that in claims other than for defamation, damages for distress and injury to feelings are not recoverable as a separate head of damage, but only in appropriate cases as an ingredient of aggravated damages.
The first is the decision of the King's Bench in Braceqirdle v. Orford (1813) 2 M. & S. 78. That was an action for trespass to the plaintiff's dwelling-house by searching and ransacking it, and it was also alleged that the circumstances implied a false charge to her credit and character that she was a receiver of stolen goods. The jury awarded £50 as general damages, a very large sum at that time, and there was a motion for a new trial. The argument for the defendants was that the allegation of injury to the plaintiff's credit and character was effectively one which lay in slander, for which there was a different limitation period, and there was also a complaint that the judge should not have directed the jury "that the damages undoubtedly ought not to be merely nominal" if they found that the defendant's conduct implied that the plaintiff had had stolen property on the premises. However, Lord Ellenborough C.J. and Le Blanc J. upheld the verdict. Lord Ellenborough said that the alleged false charge of receiving stolen goods had "been laid as a matter °f aggravation only", and not "as a distinct and substantive ground of damage". Le Blanc J. added that it was "always the Practice to give in evidence the circumstances which accompany and give a character to the trespass".
It seems to me that this decision clearly supports the conclusion that in claims for torts other than defamation, damages for distress and injury to the plaintiff's feelings are not recoverable as an additional head of damages. The second old case may also be taken to lend some weight to this conclusion, but it is less compelling since the alleged injury was not caused to the plaintiff but to his wife. That was Huxley v. Berg (1815) l Stark. 98. The claim was again for trespass for breaking and entering the plaintiff's house, and also for battery. The report is contained in a single paragraph as follows:
"The plaintiff was allowed to give in evidence that his wife was so terrified by the conduct of the defendants, that she was immediately taken ill, and soon afterwards died; but this was held to be admissible for the purpose only of shewing how outrageous and violent the breaking, etc. was, and not as a substantive ground of damage".
Finally, a decision of this court may also be worth noting, since it provides a good example of a case in which general aggravated damages were held to be recoverable in addition to a claim for pecuniary loss. In Davis v. Bromley Urban District Council [1903] J.P. 275 (C.A.) the plaintiff brought a claim for damages for trespass against his local authority on the ground that they had wrongfully demolished a wall which he had built on his property. The circumstances showed that the authority had done so in a high-handed and arrogant manner, without respect to his rights. The trial judge directed the jury that the measure of damages was the amount of the out-of-pocket expenses to which the plaintiff had been put by reason of the trespass, and the jury assessed the damages at £20. But the plaintiff successfully appealed on the gown that this was a misdirection, and a new trial was ordered. Collins M.R. said that there must be a new trial because there had been a miscarriage of justice. He said:
"It seems to me that the local authority had taken the law into their own hands, and had done it in such a way as to aggravate the insult to the plaintiff. They acted in a way which had the effect of branding him as a person who was interfering with their rights... The action was brought for an injunction and damages, and in my opinion the learned judge ought to have drawn the attention of the jury to the fact that the defendants had acted in an arbitrary and high-handed manner and without any real justification whatever. I do not think it was fair to treat the matter, as the learned judge appears to have treated it, as a mere question of costs out of pocket. On the contrary, it seems to me that the gist of the case was the aggravation by reason of the circumstances under which the act was done... The learned judge at the trial dealt with the action as if it had been one for the recovery of money out of pocket, and I am bound to say that his dealing with it in that way led to a miscarriage of justice."
Stirling L.J. agreed and Mathew L.J. said:
"In my opinion, a material part of the plaintiff's case was the insult which he had suffered, and I think the learned judge was wrong in dealing with the expenses out of pocket as the proper measure of damages."
As already mentioned, in my view all these authorities must be equally applicable to claims for malicious falsehood. Furthermore, I can see no reason why they should apply any differently according to whether the plaintiff pleads that he has suffered special damage in the form of some pecuniary loss, as he had to before 1952, or whether he now takes advantage of section 3 of the Defamation Act, as in the present case. But they only support the possibility of an award for aggravated general damages, not for an additional claim for distress and injury to feelings, as is expressly claimed in the present case.
I would accordingly strike out this claim as such, although I recognise that something of the same nature could still be recovered as an ingredient of a possible award of aggravated damages. However, since none of the foregoing authorities were considered in the arguments before us and the issue was not explored in depth, I agree that it would be undesirable to decide this point at the present stage and that the pleading should be left as it stands.
Order: Appeal allowed; order below set aside; action reinstated; appellant granted leave to amend statement of claim; defence to be filed within 42 days; appellant to have costs here and below; legal aid taxation for the appellant.
