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Cite as: [1931] UKHL 1, [1931] AC 333

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JISCBAILII_CASE_TORT

Die Luiiae, 23° Martii, 1931

Parliamentary Archives,
HL/PO/JU/4/3/865

TOLLEY

J. & S. FRY & SONS, LIMITED.

Viscount Hailsham.

Viscount
Hailsham.

Viscount
Dunedin.

Lord

Buck-

master.

Lord

Blanes-

burgh.

Lord
Tomlin.

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 pro-
truding 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 de-
scriptions 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 pur-
" poses, 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 sub-
mitted 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 pub-
lication complained of was capable of some, at least, of the mean-
ings attributed to it in the innuendo, and that those meanings
were defamatory.

9815 A.

2 [2]

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 reputa-
" tion 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 him-
self 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 per-
missible 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 con-
sidering 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.

[3] -3

Whilst this correspondence was proceeding, there was a sug-
gestion 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' Adver-
tising Agents replied on the 4th June in the following terms :—

" You return the Suzanne Lenglen lay-out with the sug-
" gestion 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 is more than likely that both Helen Wills and Betty
" Nuthall would be upset at our caricaturing them for adver-
" tising purposes."

It seems to me that this letter is a plain intimation by the
Defendants' own Advertising Agents that the natural result of
using the names of these two ladies for the purpose of the Defend-
ants' advertising campaign would be to impugn their amateur
status, and that for this reason it would be undesirable to use
their names, although it would be safe to use that of Mlle. Lenglen,
who is a professional. This can only be on the ground that the
inference which would naturally be drawn from the appearance
of such an advertisement would be that the persons whose names
were used had consented to their use and had consented on such
terms as were inconsistent with their position as amateurs.

I think the Jury were entitled to take this letter into account
in determining what was the natural inference to be drawn from
the publication complained of, and that there is to be found in
this letter evidence entitling the Jury to hold that the publication
of the Plaintiff's name as part of the Defendant's advertising
campaign, did imply to the ordinary reader that the Plaintiff had
lent himself to the Defendant's advertising scheme. If so, there
was a case to go to the Jury; both sides are agreed that the
summing up was not open to criticism, and the finding in favour
of the Plaintiff ought not, therefore, to be disturbed.

As to the damages, there has been no appeal from the decision
of the Court of Appeal that these were excessive, and that a new
trial is necessary. Whether or not the new trial should be limited
to the question of damages, or whether it; should extend to a
re-trial of the whole case, is a matter of discretion. I cannot see
in the facts of this case any ground for saying that the amount
of the damages awarded is so excessive as to warrant the inference
that the Jury took a biassed or mistaken view of the whole case.
The imputation against the Plaintiff was a most offensive one;
it was given the widest possible publicity; when, the Defendants
were given an opportunity to apologise and to contradict the
imputation that the Plaintiff had consented to the use of his name,
they refused to avail themselves of it; and I think that the case
is one in which a Jury might properly give very substantial
damages. I accept the decision that £1,000 is too much, but unless
your Lordships are prepared to hold that in every case in which
excessive damages are given there must be a re-trial of the whole
case, I cannot see in the present case any sufficient ground for
making such an Order. In my opinion the new trial should be
limited to the assessment of damages.

4 [4]

With regard to costs, the Plaintiff must have the costs of the
trial; in the Court of Appeal the Defendants succeeded in their
motion for a new trial, and in the result failed in their motion
for judgment: I think each party should bear his own costs of
that appeal. The Plaintiff, has succeeded in his appeal to your
Lordships' House, and the Defendants must pay the costs.

I move, your Lordships, accordingly.

[5]

TOLLEY

L. S. FRY & SONS, LTD.

Viscount Dunedin.

Viscount
Hailsham.
Viscount
Dunedin.

Lord

Buck-

master.

Lord

Blanes-

burgh.

Lord
Tomlin.

MY LORDS,

The sole question raised by this Appeal is whether the case ought
to have been withdrawn from the jury by the Judge, and judgment
entered for the Defendants.

It has been stated again and again and is not in dispute that the
question for the Judge is whether the writing or publication com-
plained of is capable of a libellous meaning. It is for the jury, if
the Judge so rules, to say whether it has that meaning :

The most authoritative pronouncement on actions of this sort
because it is a judgment of this House, is to be found in the case of
Capital & Counties Bank v. Henty 7 App. Cs. 741. Both parties
in this ease have appealed to it as an authority in their favour. My
Lords, I think the ruling canon in that case is to be found in the
judgment of Lord Chancellor Selborne. That was a case where as
here the mere words used were not libellous. But Lord Selborne
then proceeded to enquire what were the circumstances under which
the document was published. In that case he held the circumstances
did not and could not lead to any libellous imputation. The circu
lar was directed to Henty's customers alone, and there were quite
innocent reasons which would justify the circular. But he pointedly
said that if the circumstances had been otherwise, if the circular
had been placarded up or published to the world at large the effect
might have been quite otherwise.

Now applying this method of reasoning to the present case I
find that the caricature of the Plaintiff, innocent itself as a carica
ture, is so to speak imbedded in an advertisement. It is held as part
of an advertisement so that its presence there gives rise to specula
tion as to how it got there, or in other words provokes in the mind
of the public an inference as to 'how and why the Plaintiff's picture,
caricatured as it was, became associated with a commercial adver-
tisement. The inference that is suggested is that his consent was
given either gratuitously or for a consideration to its appearance.
Then it is said, and evidence on that point was given, and not
cross-examined to, that if that were so the status of the Plaintiff
as an amateur golfer would be called in question. It seems to me
that all this is within the province of a jury to determine. The
idea of the inference in the circumstances is not so extravagant as
to compel a judge to say it was so beside the mark that no jury
ought to be allowed to consider it.

My Lords, I come to this conclusion on a consideration of the
advertisement alone, explained with the evidence of the golf players
and the golf secretary. There are here two separate propositions:
(1) Would the caricature associated with the adver-
tisement admit of a reasonable inference that the Plaintiff had
assented to be so depicted. That depends on the view taken of the
picture, of its surroundings, and of its use. (2) If that inference
were drawn would it be deleterious to the Plaintiff's position as an
amateur golfer, and to do him harm. That depends on the evidence
of the golfers. A great deal of argument was directed to the terms
of the letter of June 4th, which has been quoted by his Lordship on

9815 A 3

2 [6]

the Woolsack. I do not consider that to be material to the question
before us. It may well have influenced the jury in coming to the
verdict they did, for to my mind it shows clearly that the general
proposition that amateur status might be called in question by
association of an amateur with an advertisement was well before
the eyes of the Defendants and their advisers. But we are not con-
cerned at present with the justice of the verdict, only with the ques-
tion of whether there was a case for the jury to consider.

I agree with the motion proposed.

[7]

TOLLEY

L. & S. FRY & SONS, LTD.

Lord Buckmaster.

Viscount
Hailsham.

Viscount
Dunedin.

Lord Buck-
master.

Lord

Blanes-
burgh.

Lord
Tomlin.

my lords,

If the advertisement the subject of the alleged libel were issued
with the assent of the Appellant the evidence of Mr. Storey and
Mr. Hobson shows that such conduct would seriously injure his
position in golf clubs and as an amateur golfer. This evidence was
not made the subject of challenge by cross-examination nor of
dispute by rival evidence and indeed is in agreement with common
experience.

The whole question therefore is whether the advertisement it-
self is capable of the inference that such assent either voluntary
or for reward had been obtained before its publication.

Upon the face of it there is no statement to that effect and
evidence to show that such was the reasonable inference was I think
rightly rejected, for if admitted on one side evidence to contradict
it must equally have been admitted on the other. The question
therefore is whether the Judge was bound to say that the publication
was incapable of this meaning. I do not think that he was. All
the circumstances of its issue must be considered and the first is
that the picture is not a mere caricature it is an advertisement,
and it seems to me the question of whether a well-known and re-
spectable trader would be assumed to have the effrontery to use a
man's portrait and his reputation to advertise their goods without
his assent is exactly the class of question on which the opinion of a
jury might well be invoked. If one man calls another a thief with-
out more it might be mere vulgar abuse and not actionable, but if
there are circumstances from which it might properly be inferred
that, goods having been stolen, the man of whom the words were
spoken was pointed to as the thief the words at once become action-
able and it would be open to the jury to consider whether in the
circumstances that was their true meaning.

In this ease there is also some further help to be obtained from
letters that passed between the Defendants and the advertising
agents. The letter referred to by Lord Justice Scrutton of the 4th
June 1928 is certainly very significant. There hail been a sugges-
tion made that Miss Helen Wills or Miss Betty Nuttall should be
substituted for an advertisement of which Miss Lenglen was the
principal figure. The Agency points out that this is very unde-
sirable for the following reasons : —" Firstly both Betty Nuttall 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 is more likely that
both Helen Wills and Betty Nuttall would be upset at our caricatur-
ing them for advertising purposes." It is impossible to read this
letter without realising that the Advertising Agency were well
aware that such advertisement might affect the amateur status of
people both in golf and in tennis circles, and it is obvious that this
can only happen if the advertisement suggested that the persons
caricatured had assented to its publication. It is also worthy of
notice that in the letter of the Plaintiff's Solicitor of the 14th

2 [8]

March 1929 after the proceedings had been started, an offer was
made in the following terms :—

" That if your clients will publish, in the same newspapers
" as the advertisement complained of, appeared, a statement
" that such advertisement was inserted without Mr. Tolley's
" knowledge or assent, and that he, Mr. Tolley, received no
" payment directly or indirectly for the use of his name, our
" client will then be prepared to agree to an order staying
" proceedings, the defendants paying the taxed costs up to
" date."

To which the Solicitors for the Respondents replied offering a
limited publication of a statement to the effect that the Plaintiff
had received no remuneration and adding that no one could think
that remuneration had been paid. But they made no reference
whatever to the suggestion that they should say the advertisement
was without Mr. Tolley's knowledge or assent. The Plaintiff's
Solicitor again wrote on the 14th May and referred only to the
question of remuneration, but their first letter was explicit, and
the refusal to accept the statement lent strong colour to the sugges-
tion that the publication in itself suggested assent, and that the
Defendants were not particularly willing to let the world know that
such assent had not been obtained. The evidence to which I have
referred does not depend upon the receipt of money, but on the fact
that an amateur had lent himself to the advertisement of other
people's goods. I think, therefore, there was sufficient for the Jury
to consider, and if that be so, their verdict, excepting as to amount,
is unassailable. Upon this latter point the Court of Appeal have
held that the damages are so unreasonable that on this ground
alone a new trial is justified. This conclusion has not been made
the subject of appeal and upon that head, therefore, the new trial
must be held, though I do not think it right that it should be
assumed that the damages ought to be nominal or trivial. Sub-
stantial wrong has been done to the Plaintiff and not one which is
technical and insignificant.

[9]

TOLLEY

J. & S. FRY & SONS, LTD.

Lord Blanesburgh.

Viscount
Hailsham.

Viscount
Dunedin.

Lord
Buck-
master.

Lord

Blanes-

burgh.

Lord
Tomlin.

my lords,

In this case, with no sympathy whatever for the Respondents in
the predicament in which they have become involved, I agree with
Lord Justice Greer and Lord Justice Slesser. The Appellant,
in my judgment, failed at the Trial to bring home to the
Respondents any actionable wrong. He made no case against them
fit for the consideration of the Jury. At the close of the evidence
it had become apparent as it seems to me that the only reputation
blunted by the publication of this caricature was that of the
Respondents responsible for it.

The Appellant in his evidence stated that he did not find any-
thing offensive in the picture. Presumably that was his impression
all along. It surprises me, but it suggests a sufficient explanation
for these proceedings. Just because the Appellant deemed the
caricature inoffensive, so also might he suppose that the golfing¹world when they saw it would be tempted to conclude that he had
consented to it, if no more. Hence this action.

The Respondents' advisers must have been strongly tempted to
challenge at the Trial this charitable view of their clients' work.
Challenge was so easy. But of course there were difficulties in their
way and the forensic temptation was resisted. They did not con-
test the Appellant's view of their clients' advertisement. But never-
theless that view was, I am convinced, profoundly mistaken. Lord
Justice Scrutton's description of this thing is surely not a whit too
severe. The caricature is a piece of offensive vulgarity, so vulgar
indeed —and this is to my mind the fatal obstacle to the Appellant's
success in these proceedings—that it is almost beyond reason that
anyone knowing anything of the Appellant as he and his record
were disclosed at the Trial could for a moment have supposed or
even suspected that he had had anything whatever to do with its
publication. That publication was surely only another instance of
the toll levied on distinction for the delectation of vulgarity.

And if the Appellant's dissociation from the publication was
thus apparently complete (and no witness was called to contest that
view or to affirm the contrary), then the Appellant's case as hitherto
presented by him is at an end. For it is admitted that the
caricature vulgar though it be is not in itself actionable.
Had its subject been a distinguished statesman it seems
to be agreed that it would have remained innocent. So.
I suppose, if a great scientist or a scholar or a captain of
industry had been enlisted, in like manner, into the service of
chocolate. But it is, so it is suggested, defamatory of the Appellant
because he is a prominent amateur golfer. Upon him the
caricature is a serious libel actionable as such. One naturally
asks why. It seems anomalous that for some hidden reason it
should be defamatory of a man in that character, while it would
have remained legally harmless at the instance of these other
persons not less well known and eminent. And the question is
searching because it has met with what I cannot help thinking is
a somewhat confused answer. It is defamatory of the Appellant,
so it is said, because it is a publication calculated to imperil his
amateur status. Again one asks why, and the answer is because

2 [10]

it imports that he consented to its publication or was paid to allow
it—and expert evidence is called to show that if such had been the
fact he would have forfeited his amateur status and might have been
required to resign from the golf clubs to which he belongs. The
answer seems inconclusive, if not irrelevant. The fact that the
consequences to an amateur golfer would have been so immediate
and serious seems to supply a convincing reason why consent to
such a publication should of all men not be imputed to him. And
if the expert evidence was called for the purpose of quantifying
damage, how irrelevant it was to the case then being presented by
the Appellant. Why, he actually appeared before the Jury as the
amateur golf champion in the year succeeding the publication of the
caricature. And, further, is it not obvious that no action in relation
to his amateur status could have been taken against the Appellant
before his conduct in relation to this publication had been
challenged by some responsible authority ? That it never was so
challenged I assume. There was no reference at the Trial to any-
thing of the kind. But if it had been and if in answer he had
declared (as I doubt not he would in terms appropriately indignant
have declared), that not only had he never consented or been asked
to consent to the publication, but that on the contrary he strongly
resented the liberties taken with his name and personality, then
there could have been no end to the challenge except an apology for
having made it. As it seems to me, therefore, on the only case
presented by the Appellant, the caricature being per se not action-
able, there was nothing left for the Jury to consider.

But my Lords when I find that the Jury awarded the Appellant
£1,000 damages, when there was, so far as I can see, no evidence, on
the case presented, properly to instruct any damages at all, the con-
clusion is inevitable that, if the Jury were not merely venting their
displeasure upon the Respondents, they were considering and
adjudicating upon a very different case, not suggested even in the
Plaintiff's evidence and in on way proved. And that case was,
as I followed learned Counsel, really implicit in his argument at
your Lordships' Bar. It may perhaps thus be stated :—
There is a widespread belief, well or ill founded, that amongst
some gentlemen cricketers, amateur lawn tennis players, and other
amateur athletes, including golfers, a practice obtains to utilize
and exploit their amateur status for reward by, for example,
assisting advertisement campaigns or pushing by the use of their
name and personality the sale of proprietary articles and that the
Respondents' caricature was such as falsely to represent to the
public that the Appellant was one of these athletes whose amateur
status is believed to be a mere masquerade.

Now, I cannot doubt that such an allegation, if made and
proved; would have amounted to a serious imputation on the honour
of the Appellant, and, not being justified, might well have
instructed exemplary damages.

But there is nothing in the caricature itself to suggest all that
or any of it. In the old days an averment that the libel was pub-
lished to people who knew of that belief would have been essential.
The legislature has rendered it no longer necessary to set out on
the record the facts and the colloquium necessary to support
an innuendo: they are now only matter of proof at the trial; but
the principle remains. See per Lord Blackburn : River Wear Com-
missioners v. Adamson 2 App. Cas. 743, 763; and see also Capital
& Counties Bank v. Henty 7 A.C. 741, 771, 778.

My Lords, there was no evidence at all adduced on this subject.
None is supplied, as I read it, by the correspondence to which
reference has been made. The Appellant himself was the obvious
witness on such a topic, and, while one may respect his reticence
upon a matter so delicate, the gratification of a quite natural re-
serve is not to be purchased at the Respondents' expense. Had

[11] 3

evidence on the subject been tendered, the limits of this alleged
belief might through cross-examination have been set. Did it get
as far as a vulgar caricature like this; did it go beyond a letter or a
photograph, signed perhaps, and in point of attractiveness not more
truthful than was necessary ? In this matter were amateur golfers
ever even suspect? It would have been interesting to ascertain the
limits of the alleged belief.

But neither the belief nor its limits were explored or made the
subject matter of evidence; and I have, I think, said enough to show
that neither could have been within the judicial knowledge of the
Judge or within the worldly experience of a Middlesex Common
Jury.

If therefore this was the real case on which that Jury
adjudicated, such a case was entirely beyond their competence.
There was no evidence upon it fit for submission to them for con-
sideration or at all, and I reach from this approach also the conclu-
sion that the Respondents were entitled to judgment.

I would dismiss the Appeal.

[12]

TOLLEY

L. & S. FRY & SONS, LTD.

Lord Tomlin.

MY LORDS,

Viscount
Hailsham.

Viscount
Dunedin.

Lord

Buck-