United Kingdom House of Lords Decisions

THE RESULT OF THE TRIAL

THE APPEAL TO THE COURT OF APPEAL

JUDGMENT OF THE COURT OF APPEAL

THE COURSE TAKEN BY THE COURT OF APPEAL

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literally, impossible. Whatever the merits, chaos would have reigned until
the dispute was settled, and, in legal matters, some degree of certainty
is at least as valuable a part of justice as perfection.

"Their Lordships regard the use of precedent as an indispensable
" foundation upon which to decide what is the law and its application
" to individual cases. It provides at least some degree of certainty
" upon which individuals can rely in the conduct of their affairs, as
" well as a basis for orderly development of legal rules.

"Their Lordships nevertheless recognise that too rigid adherence
" to precedent may lead to injustice in a particular case and also
" unduly restrict the proper development of the law. They propose,
" therefore, to modify their present practice and, while treating former
" decisions of this House as normally binding, to depart from a previous
" decision when it appears right to do so".

"In this connection they will bear in mind the danger of disturbing
" retrospectively the basis on which contracts, settlements of property
" and fiscal arrangements have been entered into and also the especial
" need for certainty as to the criminal law.

"This announcement is not intended to affect the use of precedent
" elsewhere than in this House."

THE MERITS OF THE APPEAL

(i) That there was no evidence to be left to the jury that the conditions
were fulfilled to bring the case within one of the three " categories " of
case listed by Lord Devlin in Rookes v. Barnard as being appropriate
for an award of punitive damages, and in particular the second, which
was admittedly the only relevant category.

(ii) That, even on the assumption that the first contention was wrong,
Lawton J. had misdirected the jury in at least two important matters.

(iii) That in any event the award of £25,000 was excessive, and
could not be sustained.

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THE FACTS ON WHICH THE BOOK WAS FOUNDED

The fate of the PQ 17 convoy is one of the most publicised, as well as
one of the most tragic, naval operations of World War II. The evidence
showed that it had been written about many times, notably by Captain
Roskill. R.N., the official Naval historian, and by the late Mr. Godfrey Winn,
whose book was said to have sold half a million copies. It is unnecessary
to recapitulate the facts here. They are graphically described in the judgment
of the Master of the Rolls.

It is sufficient to say that the primary cause of the disaster flowed from
an order to the convoy to scatter, which made the ships in it an easy prey
to the aircraft and submarines by which they were attacked. This order to
scatter was issued by the Admiralty in Whitehall and was due to a faulty
appreciation by the Naval Staff, in particular, as is now known, by the then
First Sea Lord himself, that the German battleship Tirpitz was at sea, and
to a decision, also by the then First Sea Lord, to take the responsibility for
the order on himself rather than leave the decision to the discretion of the
naval officers on the spot. The naval officers on the spot, including Admiral
Hamilton in command of the Cruiser Squadron, and Captain Broome, had
no option but to obey, and the convoy was thus left to fan out on individual
courses covering a vast area of sea.

So far there can be no controversy. But the two naval officers, rightly
considering that the order to scatter must denote the approach of a superior
hostile surface force, sailed West in company. Admiral Hamilton was acting
under precise orders from the Admiralty. Captain Broome was not. Captain
Broome had proposed and Admiral Hamilton accepted that he should put
himself under command of the Admiral commanding the cruisers. That this
decision was courageous there can be no doubt. What has been subse-
quently disputed was whether it was as wise as it was certainly brave. Some
have thought that it was no more than the inevitable reaction of gallant and
experienced naval officers to the threat of surface action. Others have
thought that its effect was to remove from the area of the convoy the only
naval elements, which might have countered the U Boat and air attacks, and
thus to contribute to the extent of the convoy's losses. Which of these two
views be correct it is not appropriate here to discuss. But what is relevant
to the present appeal is that those who criticised the decision had previously
fastened the responsibility on Admiral Hamilton. It was one of the distinc-
tive features of Mr. Irving's book (which it may have shared with a German
work with whose author he had collaborated) that it attempted to place
responsibility for the withdrawal of the destroyers entirely or mainly on the
shoulders of Captain Broome. This was a difficult thesis to sustain since
Captain Broome was the junior officer of the two, and had only " proposed "
the course which both forces ultimately pursued. It also involved the
propositions, both disputable, that the decision was wrong in the light of the
information then available, and that the absence of the destroyers made a
significant difference to the loss of life and material.

From the start Captain Broome contended that the passages in the book
relating to himself which it is not necessary to set out at length were defam-
atory. In his statement of claim he said that they meant and were intended
and understood to mean: —

" that the Plaintiff was disobedient, careless, incompetent, indifferent
" to the fate of the merchant ships and/or by virtue thereof had
" wrongly withdrawn his destroyer force from the convoy and/or taken
" it closer to the German airfields than he had been ordered to and
" had thereby been largely responsible for or contributed extensively to
" the loss of the aforesaid ships and the effective destruction of more
" than two-thirds of the Convoy PQ.17."

In addition, at the trial it was contended that the ordinary and natural
meaning of one of the relevant passages was that Captain Broome was a
coward and for this reason " needed no second bidding" to desert the
convoy. The defendants both disputed that the book bore any of these
meanings, but contended that without them the passages in the book were

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true. It is evident from their verdict and from the magnitude of the
award of damages that the jury rejected the contentions of the defence,
though how far and to what extent must be to some extent a matter of
speculation.

THE MATERIAL BEFORE THE JURY

From the commencement of the trial it was contended for Captain
Broome that notwithstanding the limitations of Rookes v. Barnard, he was
entitled to " exemplary " or " punitive" damages. The trial judge ruled
(though on this point he was subsequently overruled by the Court of
Appeal) that, if so, he was bound to include a plea to this effect in his
statement of claim, and the pleading consequently introduced into the
statement of claim by way of reamendment affords a convenient summary
of the way the case was then put. The pleader wrote: —

" The plaintiff will assert that the defendants and each of them
" calculated that the money to be made out of the said book containing
" the passages complained of would probably exceed the damages at
" risk (if any) and that the plaintiff is consequently entitled to recover
" exemplary damages."

He then went on to give particulars. If established, the plea clearly
puts the case within the second of the three exceptional categories listed by
Lord Devlin in Rookes v. Barnard. The question for the judge was whether
there was evidence to leave to the jury on which they could find that the
case was indeed to be placed in this category. If there was such evidence,
and if the jury were not misdirected, inclusion within the second category
would have entitled (though not compelled) them to make some award on
this account.

The Appellants contended before the Court of Appeal and before us
that there was no such evidence. In my opinion, this contention wholly fails.
To convince us they would in practice have to establish that there was
no evidence on which a properly directed jury could find that at the time
of publication they were fully aware the words bore and were intended and
understood to bear the meanings attached to them in the statement of claim
since if at the time of publication the words were known to bear these
meanings, they were false to the knowledge of the appellants and published
with that knowledge for profit. In my view, the meanings or most of them
are sufficiently obvious from a casual reading of the book, and the inadequate
attempts by the author or the publishers to provide an alternative meaning
or an escape route by which they could argue the alternative before a jury
by small modifications or carefully phrased ambiguities are less an indication
of innocence or naivete than a clear sighted appreciation of the danger
that they faced. Mr. Irving was not represented before us, but his case
was strenuously advanced before the Court of Appeal, and in another context
(to be discussed later) we had to consider his case when counsel for the
Appellant expressly accepted as accurate the Master of the Rolls' colourful
account of his behaviour. It is abundantly plain from this account that
Mr. Irving at least knew, and carefully planned, what he was doing, that he
went on with it in spite of repeated warnings from the most authoritative
sources, that he conceived the book " as a book with a difference as all men "
(that is including Captain Broome) " were shown to be cowards ", and that
he prided himself on being able to say " some pretty near the knuckle things
" about these people " (he was directly referring to Captain Broome's threat
of proceedings) " but if one says it in a clever enough way, they cannot take
" action ". The rules of evidence preclude us from taking these admissions
of his state of mind as evidence against the Appellants. But, in my opinion,
the " near the knuckle things " said about Captain Broome in the course
of this book, including the allegation that he was a coward, were said
sufficiently plainly for an experienced publisher to know perfectly well what
their meaning was and (he fact that they were said "in a clever enough
" way " should have told them plainly that they were said with deliberate
intent to convey the meanings without incurring heavy damages.

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The Appellants were not the first publishers selected by Mr. Irving. His
original publishers were William Kimber Ltd., who ultimately refused to
publish the book on the ground that the book was " a continuous witch hunt
of Captain Broome" having been advised by Captain Roskill, who gave
evidence for Captain Broome, and perhaps by others that " the book reeks
" of defamation ". In the absence of evidence by either defendant at the
trial it is impossible to say how much of this was known to the Appellants.
But it is certain that Mr. William Kimber warned the Appellants in unmis-
takable terms that his House had rejected the book precisely on the grounds
that it was libellous, amongst others of Captain Broome. The undisputed
response of the Appellants was either flippant or cynical. Moreover, Cap-
tain Broome himself had warned them on several occasions that if they
published the book, as they did, in substantially the form in which he had
seen it, they must expect an action for libel from himself. That they took
these threats seriously can be seen from their reaction to the latest of them
which followed the issue of the proof copies. On receipt of this, the Appel-
lants placed a stop on the book in the following terms: —

" Will you please note that absolutely and positively, not one single
" copy, on any pretext whatsoever, is to be removed from the House
" without reference to me."

In attempts to sell the serial rights their efforts were " shot down " by
three national Sunday newspapers presumably on the same grounds.

What the full explanation of their subsequent publication may have been
will never be known, since the Appellants did not elect to give evidence.
But in the absence of any explanation the jury were perfectly entitled to
infer that they had calmly calculated that the risks attendant on publication
did not outweigh the chances of profit What is certain is that, in so far
as they were aware that the passages complained of could be reasonably
understood to bear the meanings attached to them by Captain Broome,
including the allegation of cowardice, they published them knowing them in
this sense to be false, since no effort was made at any stage to suggest
that there was any material on which a reasonable publisher could base the
belief that the passages complained of, if they bore these meanings, were
true. In his judgment in the Court of Appeal the Master of the Rolls lists
other features of the case against the Appellants upon which the jury were
entitled to base inferences with most of these, except the reference to
the paperback edition, which, contrary to what he says (perhaps per
incuriam), was not published by the Appellants but under licence
by another publisher, I find myself in agreement. In particular, I concur
in what was said in the Court of Appeal about the dust cover of the book,
which, making every allowance for the popular style in such productions
and putting the most favourable interpretation upon every phrase in it,
seems, to my mind, in the absence of explanation, to indicate that the pub-
lishers were well aware of the full implication of the passages complained
of and were prepared to sell the book on this sensational interpretation.
In such circumstances to argue that there was no evidence from which the
jury could infer that " the Appellants had calculated that the money to be
" made out of the book containing the passages complained of would
" probably exceed the damages at risk (if any) " was, to my mind a somewhat
forlorn hope, and nothing which Counsel for the Appellants said in the
course of his strenuous and ably conducted argument has convinced me to
the contrary. I will refer to the passage from Lord Devlin's speech in
Rookes v. Barnard relating to the categories later for its proper interpreta-
tion, but I cannot see how, on any view, if these facts were proved to be
satisfaction of a jury, properly directed, they are not sufficient to enable the
jury to base inferences bringing the publication within the second category.

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THE DIRECTION ON THE RELATION BETWEEN
THE TWO AWARDS

There was much more substance in, and I find much greater difficulty in
deciding upon, the Appellants' second contention, which was based, not
upon Lord Devlin's three listed categories, but upon his exposition of the
general conditions under which exemplary damages may be awarded after the
conclusion of the three " considerations " listed on pp. 1227 and 1228 of the
report which, he says, ought always to be borne in mind. At this point,
Lord Devlin said :—

" Thus a case for exemplary damages must be presented quite differ-
" ently from one for compensatory damages; and the judge should not
" allow it to be left to the jury unless he is satisfied that it can be
" brought within the categories I have specified. But the fact that the
" two sorts of damage differ essentially does not necessarily mean that
" there should be two awards. In a case in which exemplary damages
" are appropriate, a jury should be directed that if, but only if, the sum
" which they have in mind to award as compensation (which may, of
" course, be a sum aggravated by the way in which the defendant has
" behaved to the plaintiff) is inadequate to punish him for his outrageous
" conduct, to mark their disapproval of such conduct and to deter him
" from repeating it, then it can award some larger sum." (italics mine).
" If a verdict given on such direction has to be reviewed upon appeal,
" the appellate court will first consider whether the award can be justified
" as compensation and if it can, there is nothing further to be said. If
" it cannot, the court must consider whether or not the punishment is,
" in all the circumstances, excessive. There may be cases in which it is
" difficult for a judge to say whether or not he ought to leave to the jury
" a claim for exemplary damages. In such circumstances, and in order
" to save the possible expense of a new trial, I see no objection to his
" inviting the jury to say what sum they would fix as compensation and
" what additional sum, if any, they would award if they were entitled
" to give exemplary damages. That is the course which he would have
" to take in a claim to which the Law Reform (Miscellaneous Provisions)
" Act, 1934, applied."

In my opinion, this passage contains a most valuable and important con-
tribution to the law of exemplary damages which prior to Rookes v. Barnard
had not, so far as I am aware, been adequately stressed in any previous case,
and which, in my view, would retain, and possibly even increase, its value even
if the categories in Rookes v. Barnard were to be wholly rejected.

In essence the doctrine is that the award of a punitive element in damages,
if it is ever permissible, must also remain discretionary, and, in order to give
effect to the second of the three " considerations " listed at page 1227, the
judge should always warn a jury that they need not award anything, and
must not do so unless they are satisfied that a purely compensatory award
(in a sense which I will explain) is inadequate. It follows that whatever they
do award should only be a sum which has taken into account the award of
damages already notionally allowed as compensation, including, where appro-
priate, the " aggravated " element required by a defendant's bad conduct, and
should never exceed the amount by which the required penalty (if that is
the right word) exceeds the required compensation.

I shall revert to this feature of Rookes v. Barnard later. But what is said
in substance by the Appellants in this case is that the summing-up failed to
give effect to this important and, in my view, vital principle.

The learned judge directed the jury over two days and much that he said
was irrelevant to the question of exemplary damages. Of what was relevant to
exemplary damages, most was a direction to the jury about the second cate-
gory and the evidence in the case relevant to it. This reflected the balance
of argument by counsel during the case and it appears from a remark in the
judgment of Phillimore L.J. in the Court of Appeal that, in some sense at
least, both counsel agreed that dependent on the view which the jury took
of the facts Lawton J. should leave the question of exemplary damages to

9

the jury. But there were two passages in the summing-up relevant to the
present issue. The first was a passage on the first day of the summing-up
when the judge, having directed the jury that punitive damages were in the
nature of a fine, went on to give two examples from the criminal law carrying
the moral that the punishment must neither be excessive nor inadequate to
the gravity of the offence and said:—

" If you are going to punish a man to show him that libel does not
" pay. provided, of course, it comes within Mr. Justice Widgery's defini-
" tion" (he was referring to Manson v. Associated Newspapers Ltd.,
" supra) what you do must be reasonable in all the circumstances,
" bearing in mind that is a penalty."

The second, and more important, of the passages was on the second day
of the summing-up when, after leaving an agreed list of questions to the jury,
the learned judge said: —

" As you will see, the issue of damages has been divided into two
" questions. The first one is No. 3, ' What compensatory damages do
"' you award the plaintiff? ' You will remember that compensatory
" damages are compensation for something, they are not given to you.
" When you come to consider that question you must remember that
" this is a joint publication by Cassells & Co., Ltd., and Mr. Irving.
" You do not award two different sums. You award one sum and you
" will leave the lawyers to work out what it means, but it is one sum.
" Do you all follow that? Then having decided what are the proper
" additional compensatory damages then you will go on and consider the
" fourth question, namely, ' Has the plaintiff proved that he is entitled
"' to exemplary damages? ' It is for him to prove that he is entitled
" to it, not for the defendants to prove that he is not. This question
" has got to be divided up into a number of subsidiary questions and
" the reason for this is problems of law which arise, but you do not
" have to concern yourselves with those. That is my responsibility.
" There are two defendants and, as I have been at pains to point out
" to you during my summing-up, the case against each defendant on the
" issue of punitive damages is different, so you will have to consider
" the case against each defendant separately. I suggest you start with
" Mr. Irving and then go on to Cassell & Co., Ltd. In respect of each of
" them you will ask yourselves this question: ' Has the plaintiff proved
"' his entitlement against that defendant? ' If the answer is yes then
" you will have to go on and assess how much punitive damages should
" be awarded. If the answer is no he will get no punitive damages. At
" least that will be your finding. What the law is is another matter, but
" that will be your finding.

" Having carried out that operation in relation to Mr. Irving you should
" carry out exactly a similar operation in relation to Cassells & Co.
" Remember all the time that letters written by Mr. Irving or to Mr.
" Irving, other than by Cassells, are not evidence against Cassells & Co.
" I cannot stress that too much. You will have to ask yourselves: ' Has
"' he proved that he is entitled to punitive damages against Cassells
"' & Co. Ltd.? ' If the answer is no that is that. If the answer is yes
" you will have to assess the damages.

" I have put all that into an omnibus lawyers' series of questions. I
" could have put it all into one question, but I came to the conclusion
" that it would probably be better for you. I will read paragraph 4
" again. ' Has the plaintiff proved that he is entitled to exemplary
"' damages? If yes, has he proved his entitlement against one or both
"' of the defendants? If one only, against which one? ' Then you see
" the last question under this heading, ' What additional sum should be
"' awarded him by way of exemplary damages? ' Would you be good
" enough to underline the word 'additional', because I want to know,
" and learned counsel want to know, if you do decide to award punitive
"damages, how much more do you award over and above the
" compensatory damage."

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What was said against this passage on behalf of the Appellants was that
this summing-up was defective in that it did not make it absolutely plain to
the jury that before making any punitive award against the defendant they
must first take into account and assess the punitive effect of any compensatory
award (including any element of "aggravated" damage) and only award
such amount (if any) by which the appropriate penalty exceeded such award.
I am bound to say that I have found the greatest difficulty in accepting the
summing-up on this point as adequate, and my difficulties were increased
by two passages in the final speech of Captain Broome's counsel which as
counsel for the Appellants persuasively argued seemed to indicate that the
respective awards of compensatory and punitive damages were entirely
separate assessments and that one should not be balanced against the other.
In so far as counsel said this, and he appears to have done so, he was, in my
opinion, entirely wrong. In the end, however, I have come to the conclusion
that the judge's direction was just adequate to convey the impression intended
in the passage of Lord Devlin's speech which had been accurately read to
the jury by counsel for Mr. Irving and that the jury were not in fact misled.
In coming to this conclusion I have been impressed, as was the Court of
Appeal, by the stress the judge laid on the word " additional " in the passage
cited, by the fact that the form of the questions left to the jury (which did
not include as it should have done, the words " if any " in that relating to
punitive damages) was agreed by counsel and by the fact that the line of the
judge's summing-up was entirely in accord with the case for the Appellants
as it was put to the jury on their behalf, and that everyone seems to have
assumed that the result of the jury's answers was that which in fact obtained.
I desire, however, to say that the direction on this point, if sufficient, as I am
constrained to say it was, was only barely sufficient, and that I trust that in
future cases of this kind trial judges will stress the matter a good deal more
clearly and with greater emphasis than was done here. In the present case
I do not think that the judge can be blamed for putting the matter compen-
diously in a form which seems to have misled no one, which accorded with
the way and with the emphasis with which it had been put to the jury on
behalf of the Appellants, and which, according to Phillimore L.J.'s
observation quoted above had, in some sense, been agreed.

A SINGLE AWARD OR TWO?

Less meritorious, in my view, was the second criticism of the direction
put before us. This was in effect that the judge did not correctly direct
the jury as to the principles on which a joint award of exemplary damages
can be made against two or more defendants guilty of the joint publication
of a libel in respect of which their relevant guilt may be different, and their
means of different amplitude. With high regard for the judgments of the
Master of the Rolls and of Salmon L.J., I differ from both in what they
said on this aspect of the matter, both as to the effect of the judge's sum-
ming up and to what it ought to be in such cases. The Master of the Rolls
said: —

" There is, of course, a difficulty. How is a jury to assess the one
" figure against two defendants. Are they to fix it at a high sum which
" they think the more blameworthy ought to pay? Or a low sum for the
" least blameworthy? That must be left to the jury. They may, if they
" choose, fix a figure in between. The Judge can, I think, tell them that
" they can fix it as against the more blameworthy, expecting him to pay
" it: and leave the least blameworthy (if he is called upon to pay) to
" recover contribution. In this case the Judge left it to them without any
" specific direction. That was, J think, quite legitimate: and is no
" ground for disturbing the verdict." [the italics are mine].
The Master of the Rolls then added:

" In any case, however, I think Cassells are not at liberty to take this
" point. They did not ask Judge or jury to split the damages. The
" Judge told Counsel the questions he was going to put to the jury: and
" asked their comments. That was the time for Counsel to ask for the
" exemplary damages to be split. Not having asked, it is too late to
" ask in this Court."

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Salmon L.J. appears to have thought that the award should reflect the
amount due by the most guilty of the tortfeasors and he said: —

" You may be saying to yourselves: if we do take the view that both
" these defendants should pay something by way of punitive damages,
" should we take into consideration the relative culpability of each one?
" Again, and I merely say this by way of illustration, and certainly not
" by way of guidance to you, say, for example you took the view that
" Mr. Irving was more to blame than Cassells & Co., or to be fair, you
" took the view that Cassells & Co. being an experienced firm of
" publishers were more to blame than this young man. Mr. Irving,
" should you make Cassells & Co. pay a larger sum by way of punitive
" damages than Mr. Irving? The answer to that is no " (italics mine).
" Whatever damages, if any, you decide should be awarded by way of

12

" punitive damages must be the same sum in respect of both Mr. Irving
" and Cassells & Co. Ltd., if you find them both liable to pay punitive
" damages. Have I made that clear? "

This direction is in many ways defective as a piece of clear English prose.
In particular, it contains an ambiguity, later cured by an exchange in the
presence of the jury between counsel and the Bench as to whether the jury
is to award a single sum against both defendants or two sums, each against
one of the defendants. But on the crucial point as to whether this sum,
when awarded, should represent the higher or the lower figure for which
the jury found either guilty I myself find no difficulty in thinking that the
jury would have been clear that they were to award the lower. I would
hope that on other occasions this would be made even plainer, but I find
it difficult to criticise an experienced judge for not being absolutely crystal
clear on this point at the end of a two day direction over a wide range of
different topics following a seventeen day trial. I would not disturb the
verdict on these grounds.

I also consider that having agreed to the form of the questions left to the
jury it was not really open to the Appellants to contend, on appeal, that the
awards should be split. In any case I am fortified in my view of the matter
by the fact that I find the same difficulty as did the Court of Appeal in
differentiating in any way between the moral culpability of the two
defendants. Mr. Irving may have been the author of the defamatory matter.
But the Appellants published it, on the jury's finding, with their eyes open
as to what it contained. It may be that Mr. Irving had fewer means and
if the jury were looking on the exemplary damages from the point of view
of deferring him, they could have awarded a smaller sum. But there seems
to have been no evidence concerning the means of either party, and I do
not see how at this late date we can properly be invited to speculate. The
enterprise was essentially a joint one, and if the Appellants had not all
the information available to Mr. Irving, they had enough to make sure
that they knew exactly what they were doing. It is difficult to know on
what principle the jury could have differentiated between the two defendants.

WAS THE AWARD EXCESSIVE?

The final point taken for the Appellants was that the award of £25,000
exemplary damages, or, as it was equally properly, and possibly better put,
the total award of £40,000 (which included the exemplary element) was
so far excessive of what twelve reasonable men could have awarded that
it ought to be set aside and a new trial ordered. I cannot disguise from
myself that I found this an extremely difficult point in the case, and have
only decided that the verdict should not be disturbed, with great hesitation,
because I am very conscious of the fact that I would certainly have awarded
far less myself, and possibly, to use a yardstick which some judges have
adopted as a rule of thumb, less than half the £25,000.

A number of factors lead me, however, to the belief that the verdict
should not be disturbed. The first, and paramount, consideration in my
mind is that the jury is, where either party desires it, the only legal and
constitutional tribunal for deciding libel cases, including the award of
damages. I do not think the judiciary at any level should substitute itself
for a jury, unless the award is so manifestly too large, as were the verdicts
in Lewis v. Daily Telegraph Ltd. [1963] 1 Q.B. 340 or manifestly too small,
as in English & Scottish Co-operative Properties Mortgage & Investment
Society Ltd. v. Odhams Press Ltd. [1940] 1 K.B. 440, that no sensible jury
properly directed could have reached the conclusion. I do not think much
depends on the exact formula used to describe the test to be applied,
whether the traditional language " so large (or small) that twelve sensible
"men could not reasonably have given them " (per Esher M.R. in Praed v.
Graham (1890) 24 Q.B.D. 53 at p. 55 or that of Palles C.B. in McGrath v.
Bourne I.R. 10 C.L. 160 at 164 cited by Lord Wright in Mechanical and
General Inventors Co. & Lehwess v. Austin [1935] A.C. 346 at 378. that
" no reasonable proportion existed between it and the circumstances of the

13

" case ". The point is that the law makes the jury and not the judiciary
the constitutional tribunal, and if Parliament had wished the roles Co be
reversed in any way, Parliament would have said so at the time of the
Administration of Justice (Miscellaneous Provisions) Act, 1933. since section
6 of that Act expressly accepts defamation actions (otherwise than in a
limited class of case) from the general change which it then authorised.

In addition to the above cases counsel for the Respondent cited
Youssoupoff v. Metro-Goldwyn-Mayer (1934) 50 T.L.R. 581. at pp. 583,
584; Bocock v. Enfield Rolling Mills [1954] 1 W.L.R. 1303 ; Scott v. Musial
[1959] 2 Q.B. 429 at 436; Morey v. Woodfield [1964] 1 W.L.R. 16; McCarey
v. Associated Newspapers [1965] 2 Q.B. 86; Broadway Approvals Ltd. v.
Odhams Press [1965] 1 W.L.R. 805. esp at 818. and 820.

I do not see anything in the above cases which alters the principle
involved, nor am I aware of anything in the nature of exemplary damages
to alter it in this limited class of case. It may very well be that, on the
whole, judges, and the legal profession in general, would be less generous
than juries in the award of damages for defamation. But I know of no
principle of reason which would entitle judges, whether of appeal or at
first instance, to consider that their own sense of the proprieties is more
reasonable than that of a jury, or which would entitle them to arrogate
to themselves a constitutional status in this matter which Parliament has
deliberately withheld from them, for aught we know, on the very ground
that juries can be expected to be more generous on such matters than
judges. I speak with the greater conviction because my own view is that
the legal profession is right to be cautious in such matters and juries are
wrong if they can be said to be more generous. But that is not the law
and I do not think that judges who hold my view are any more entitled to
change the law on this topic than they have been in the past.

Counsel very rightly drew our attention to observations of Lord Devlin
in Rookes v. Barnard at p. 1227 when he said:

" I should not allow the respect which is traditionally paid to an
" assessment of damages by a jury to prevent me from seeing that the
" weapon is used with restraint. It may even be that the House may
" find it necessary to follow the precedent it set for itself in Benham
" v. Gambling (1941) A.C. 157, and place some arbitrary limit on
" awards of damages that are made by way of punishment."

I regard Benham v. Gambling as setting an absolutely necessary but
wholly arbitrary rule to solve an absolutely insoluble problem, and I do
not think it could readily be extended to exemplary damages for libel simply
on the ground that judges do not agree with juries on quantum. I do not
think the first sentence in Lord Devlin's observation means more than
that the House will use its legitimate powers to interfere with awards by
juries with particular regard to the need for preserving liberty, which he
was concerned to express, and if it means that the House was conferring
on itself greater powers than it previously possessed I would have regarded
it as an usurpation of the function of the legislature as a whole. We were
also referred to the observations of the Court of Appeal in Ward v. James
[19661 1 Q.B. 273 at p. 301. If the passage quoted there means more than
that Court, in exercising its undoubted right to interfere with unreasonable
verdicts will have more regard than heretofore to the general level of
damages in cases of a similar nature, and particularly personal injury
cases, it may need further consideration.

The second reason which leads me to decline to interfere with the jury's
verdict in this case is the peculiar gravity of the facts of this case. I share
with Lord Justice Phillimore the view that the jury must have found that
" these grave libels were perpetrated quite deliberately and without regard
" to their truth by a young man and a group of publishers interested solely
" in whether they would gain by the publication of this book. They did
" not care what distress they caused." It is true, and I have been con-
strained to say, that I would have treated this heinous offence against
public decency with far less severity than did the jury in this case. But, at
the end of the hearing, I found myself as unable to say as were the three

14

eminent judges in the Court of Appeal that no twelve reasonable jurors
could have come to a different conclusion from myself. These matters
are very highly subjective, and I do not feel myself entitled to substitute
my own subjective sense of proportion for that of the constitutional tribunal
appointed by law to determine such matters.

I should add, lest I be thought to have overlooked the point that, to
avoid the expense and anxieties of a new trial Counsel on both sides
agreed to leave to us, in case the appeal should succeed, the assessment
of any sum to be awarded. I doubt myself how satisfactory this would have
been but, quite obviously, before we embarked upon such a task we should
have to be first satisfied that the original verdict could not stand, and to
this preliminary issue the agreement between counsel is necessarily
irrelevant.

THE DECISION IN ROOKES v. BARNARD

" Prior to Rookes v. Barnard, the law as to exemplary damages was
" settled ".

15

"Such damages are variously called punitive damages, vindictive
" damages, exemplary damages, and even retributory damages. They
" can apply only where the conduct of die defendant merits punishment,
" which is only considered to be so when his conduct is wanton, as when
" it discloses fraud, malice, violence, cruelty, insolence, or the like. or.
" as it is sometimes put, where be acts in contumelious disregard of the
" plaintiff's rights . . . Such damages are recognised to be recoverable
" in appropriate cases in defamation ".

If the Master of the Rolls had gone on to quote from para. 212 of the
same edition he would have read the following passage, inconsistent with
his construction of the foregoing, under the heading " A Double Rationale "
which should, I hope, have disabused him of the idea that the law of
punitive damages was in fact settled prior to Rookes v. Barnard. The
passage is as follows:

" 3. A Double Rationale

" Through all these various cases, however, runs another thread,
" giving a very different explanation of the position. For indeed it
" cannot be said that English law has committed itself finally and fully
" to exemplary damages, and many of the above cases point to the
" rationale not of punishment of the defendant but of extra compensa-
" tion for the plaintiff for the injury to his feelings and dignity. This is,
" of course, not exemplary damages at all. It is another head of non-
" pecuniary loss to the plaintiff."

(The italics are mine).

Indeed, in the well-known American textbook on the law of damages by the
late Professor Charles T. McCormick, published in 1935 by the West
Publishing Company of Minnesota occurs the following passage to the same
effect on page 278: —

" In England, where exemplary damages had their origin, it is still
" not entirely clear whether the accepted theory is that they are a distinct
" and strictly punitive element of the recovery, or they are merely a
" swollen or ' aggravated' allowance of compensatory damages per-
" mitted in cases of outrage. It is only in America that the cases have
" clearly separated exemplary from compensatory damages, and it is
" only here that the doctrine, thus denitely isolated, has been attacked
" and criticised."

More characteristic than either of these passages and more illustrative of
the confusion which reigned before Rookes v. Barnard is the paragraph on
the subject in Lord Simonds' edition of Halsbury's Laws of England (Vol. 11
title Damages p. 223)

" Exemplary damages. Where the wounded feeling and injured pride
" of a plaintiff, or the misconduct of a defendant, may be taken into
" consideration, the principle of restitutio in integrum no longer applies.
" Damages are then awarded not merely to recompense the plaintiff for
" the loss he has sustained by reason of the defendant's wrongful act,
" but to punish the defendant in an exemplary manner, and vindicate
" the distinction between a wilful and an innocent wrongdoer. Such
" damages are said to be ' at large', and, further, have been called
" exemplary, vindictive, penal, punitive, aggravated, or retributory."

This passage clearly shows the extraordinary confusion of terminology
reflecting differences in thinking and principle which existed up to 1964.
Apart from anything else, " aggravated " damages, classed as compensatory
by Mayne and MacGregor, and by Professor McCormick, are assimilated to
exemplary or punitive damages as such, as is the phrase damages " at large ",
—an expression so indefinite in its connotation that counsel for the appellants
in argument felt able to include within it (as this passage suggests
inappropriately) even the general damages for pain and suffering in a
personal injuries case. Clearly, before Rookes v. Barnard, the thinking
and the terminology alike called aloud for further investigation and exposi-
tion, and, since in such cases it is the classic function of this House to
make such reviews I cannot accept the simpliste doctrine of the Court of

16

Appeal either that there was no need to make it, or that the only thing to
restore clarity is to go back to the state of the law as it was in 1963.
In passing, I may say that I do not attach so much importance as did
the Court of Appeal to the circumstance that the two categories mentioned
by Lord Devlin had never been discussed in argument by counsel. The
cases and text books on exemplary damages had been exhaustively read,
and when this House undertakes a careful review of the law it is not
to be described as acting per incuriam or ultra vires if it identifies and
expounds principles not previously apparent to the counsel who addressed
it or to the judges and text book writers whose divergent or confusing
expressions led to the necessity for the investigation. Of course, in a sense,
it would be easy enough to direct a jury under the old law if one simply
said to them that any conduct of which they chose on rational grounds to
disapprove would give rise to an award of exemplary damages and that
any sum they chose to think appropriate as the penalty would be acceptable.
But no-one in recent years has ever thought this, although it is noteworthy
that as recently as 1891 the author of Sedgwick's " A treatise on the Measure
" of Damages " was writing (op: cit: eighth edn: pp. 502 and following)—

"Until comparatively recent times juries were as arbitrary judges of
" the amount of damages as of the facts . . . Even as late as the time
" of Lord Mansfield it was possible for counsel to state the law to be
" that ' The Court cannot measure the ground on which the jury find
"' damages that may be thought large: they may find upon facts
"' within their own knowledge' . . . The doctrine of exemplary
" damages is thus seen to have originated in a survival in this limited
" class of cases of the old arbitrary power of the jury". (Italics
mine.)

Clearly modern juries must be given adequate professional guidance and
the object of Lord Devlin's opinion in Rookes v. Barnard was to enable
them to have it. Speaking for myself, and whatever view I formed of the
categories, I would find it impossible to return to the chaos which is
euphemistically referred to by Phillimore LJ. as " the law as it was before
" Rookes v. Barnard ".

Before I examine the actual decision in Rookes v. Barnard I would now
propose to make two sets of observations of a general character. The first
relates to the context in which damages must be awarded, the second to
the terminology to be used in particular classes of case.

THE SUBJECTIVE ELEMENT IN DAMAGES

Of all the various remedies available at common law, damages are the
remedy of most general application at the present day, and they remain the
prime remedy in actions for breach of contract and tort. They have been
defined as " the pecuniary compensation obtainable by success in an action
" for a wrong which is either a tort or a breach of contract". They must
normally be expressed in a single sum to take account of all the factors
applicable to each cause of action and must of course be expressed in
English currency. (Mayne and MacGregor on Damages 12th Edition
paragraph 1.)

In almost all actions for breach of contract, and in many actions for tort,
the principle of restitutio in integrum is an adequate and fairly easy guide
to the estimation of damage, because the damage suffered can be estimated
by relation to some material loss. It is true that where loss includes a
pre-estimate of future losses, or an estimate of past losses which cannot in
the nature of things be exactly computed, some subjective element must enter
in. But the estimate is in things commensurable with one another, and
convertible at least in principle to the English currency in which all sums
of damages must ultimately be expressed.

In many torts, however, the subjective element is more difficult. The pain
and suffering endured, and the future loss of amenity, in a personal injuries
case are not in the nature of things convertible into legal tender. The
difficulties arising in the paraplegic cases, or, before Benham v. Gambling,
in estimating the damages for loss of expectation of life in a person who

17

died instantaneously, are only examples of the intrinsically impossible task
set judge or juries in such matters, Clearly the £50,000 award upheld in
Morey v. Woodfield (No. 2) [1964] 1 W.L.R. 16 could never compensate
the victim of such an accident. Nor. so far as I can judge, is there any
purely rational test by which a judge can calculate what sum. greater or
smaller, is appropriate. What is surprising is not that there is difference of
opinion about such matters, but that in most cases professional opinion
gravitates so closely to a conventional scale. Nevertheless in all actions in
which damages, purely compensatory in character, are awarded for suffering,
from the purely pecuniary point of view the plaintiff may be better off. The
principle of restitutio in integrum, which compels the use of money as its
sole instrument for restoring the status quo, necessarily involves a factor
larger than any pecuniary loss.

In actions of defamation and in any other actions where damages for loss
of reputation are involved, the principle of restitutio in integrum has neces-
sarily an even more highly subjective element. Such actions involve a money
award which may put the plaintiff in a purely financial sense in a much
stronger position than he was before the wrong. Not merely can he recover
the estimated sum of his past and future losses, but, in case the libel, driven
underground, emerges from its lurking place at some future date, he must
be able to point to a sum awarded by a jury sufficient to convince a bystander
of the baselessness of the charge. As Windeyer J. well said in Uren v.
John Fairfax & Sons Pty. Ltd. 117 C.L.R. at p. 150:

" It seems to me that, properly speaking, a man defamed does not
" get compensation for his damaged reputation. He gets damages
" because he was injured in his reputation, that is simply because he was
" publicly defamed. For this reason, compensation by damages operates
" in two ways, as a vindication of the plaintiff to the public, and as
" consolation to him for a wrong done. Compensation is here a solatium
" rather than a monetary recompense for harm measurable in money."

This is why it is not necessarily fair to compare awards of damages in this
field with damages for personal injuries. Quite obviously, the award must
include factors for injury to the feelings, the anxiety and uncertainty under-
gone in the litigation, the absence of apology, or the reaffirmation of the
truth of the matters complained of, or the malice of the defendant. The bad
conduct of the plaintiff himself may also enter into the matter, where he has
provoked the libel, or where perhaps he has libelled the defendant in reply.
What is awarded is thus a figure which cannot be arrived at by any purely
objective computation. This is what is meant when the damages in defam-
ation are described as being " at large ". In a sense, too, these damages are
of their nature punitive or exemplary in the loose sense in which the terms
were used before 1964, because they inflict an added burden on the defend-
ant proportionate to his conduct, just as they can be reduced if the defendant
has behaved well—as for instance by a handsome apology—or the plaintiff
badly, as for instance by provoking the defendant, or defaming him in return.
In all such cases it must be appropriate to say with Esher, M.R. in Praed v.
Graham (1890) 24 Q.B.D. 53 at p. 55): —

" In actions of libel ... the jury in assessing damages are entitled
" to look at the whole conduct of the defendant" (I would personally
add " and of the plaintiff ") " from the time the libel was published
" down to the time they give their verdict. They may consider what
" his conduct has been before action, after action, and in Court during
" the trial".

It is this too which explains the almost indiscriminate use of " at large "
" aggravated ", " exemplary ", and " punitive " before Rookes v. Barnard.
To quote again from Professor McCormick's work, it was originally only in
America that the distinction between " aggravated " damages (which take
into account the defendant's bad conduct for compensating the plaintiff's
injured feelings) and " punitive " or " exemplary " damage was really drawn.
My own view is that no English case, and perhaps even in no statute,
where the word " exemplary " or " punitive " or " aggravated " occurs before
1964 can one be absolutely sure that there is no element of confusion
between the two elements in damages. It was not until Lord Devlin's

18

speech in Rookes v. Barnard that the expressions "aggravated" on the
one hand and " punitive " or " exemplary " on the other acquired separate
and mutually exclusive meanings as terms of art on English law.

The next point to notice is that it has always been a principle of English
law that the award of damages when awarded must be a single lump
sum in respect of each separate cause of action. Of course, where part of
the damage can be precisely calculated it is possible to isolate part of it
in the same cause of action. It is also possible and desirable to isolate
different sums of damages receivable in respect of different torts, as was
done here in respect of the proof copies. But I must say I view with some
distrust the arbitrary subdivision of different elements of general damages
for the same tort, as was done in Loudon v. Ryder [1953] 2 Q.B. 202, and
even, subject to what I say later, what was expressly approved by Lord
Devlin in Rookes v. Barnard at page 1228 for the laudable purpose of
avoiding a new trial. In cases where the award of general damages con-
tains a subjective element, I do not believe it is desirable or even possible
simply to add separate sums together for different parts of the subjective
element, especially where, as was done by agreement in this case, the sub-
jective element relates under different heads to the same factor, in this
case the bad conduct of the defendant. I would think with Lord Atkin in
Ley v. Hamilton:

" The 'punitive' element is not something which is or can " (italics
mine) " be added to some known factor which is not punitive ",
or in the words of Windeyer J. in Uren v. Fairfax & Sons Property Ltd.
117C.L.R. 118 at p. 150:

" The variety of the matters which, it has been held, may be con-
" sidered in assessing damages for defamation must in many cases
" mean that the amount of a verdict is the product of a mixture of
" inextricable considerations ".

(Italics again mine.)

In other words the whole process of assessing damages where they are
"at large" is essentially a matter of impression and not addition. When
exemplary damages are involved, and even though, in theory at least, it may
be possible to winnow out the purely punitive element, the dangers of
double counting by a jury or a judge are so great that, even to avoid a new
trial, I would have thought the dangers usually outweighed the advantages.
Indeed, though it must be wholly illegitimate to speculate in such a matter,
the thought crossed my mind more than once during the hearing that it may
even have happened in this case.

TERMINOLOGY

This brings me to the question of terminology. It has been more than
once pointed out the language of damages is more than usually confused.
For instance, the term " special damage " is used in more than one sense
to denominate actual past losses precisely calculated (as in a personal in-
juries action), or " material damage actually suffered" as in describing
the factor necessary to give rise to the cause of action in cases, including
cases of slander, actionable only on proof of " special damage ". If it is
not too deeply embedded in our legal language, I would like to see " special
damage " dropped as a term of art in its latter sense and some phrase like
" material loss " substituted. But a similar ambiguity occurs in actions of
defamation, the expressions " at large ", " punitive ", " aggravated ", " re-
tributory ", " vindictive " and " exemplary " having been used in, as I have
pointed out, in extricable confusion.

In my view it is desirable to drop the use of the phrase " vindictive "
damages altogether, despite its use by the County Court judge in Williams
v. Settle [1960] 1 W.L.R. 1072. Even when a purely punitive element is
involved, vindictiveness is not a good motive for awarding punishment. In
awarding " aggravated " damages the natural indignation of the court at the
injury inflicted on the plaintiff is a perfectly legitimate motive in making
a generous rather than a more moderate award to provide an adequate

19

solution. But that is because the injury to the plaintiff is actually greater
and as the result of the conduct exciting the indignation demands a more
generous solatium.

Likewise the use of " retributory " is objectionable because it is ambiguous.
It can be used to cover both aggravated damages to compensate the plaintiff
and punitive or exemplary damages purely to punish the defendant or
hold him up as an example.

As between " punitive " or " exemplary ", one should, I would suppose,
choose one to the exclusion of the other, since it is never wise to use two
quite interchangeable terms to denote the same thing. Speaking for myself.
I prefer "exemplary", not because "punitive" is necessarily inaccurate,
but "exemplary" better expresses the policy of the law as expressed in
the cases. It is intended to teach the defendant and others that " tort does
" not pay" by demonstrating what consequences the law inflicts rather
than simply to make the defendant suffer an extra penalty for what he has
done, although that does, of course, precisely describe its effect.

The expression " at large " should be used in general to cover all cases
where awards of damages may include elements for loss of reputation,
injured feelings, bad or good conduct by either party, or punishment, and
where in consequence no precise limit can be set in extent. It would be
convenient if, as the appellants' counsel did at the hearing, it could be
extended to include damages for pain and suffering or loss of amenity.
Lord Devlin uses the term in this sense in Rookes v. Barnard at p. 1221,
when he defines the phrase as meaning all cases " where the award is not
" limited to the pecuniary loss that can be specially proved ". But I suspect
that he was there guilty of a neologism. If I am wrong, it is a convenient
use and should be repeated.

Finally, it is worth pointing out, though I doubt if a change of terminology
is desirable or necessary, that there is danger in hypostatising "com-
" pensatory ", " punitive ", " exemplary " or " aggravated " damages at all.
The epithets are all elements or considerations which may, but need not,
be taken into account in assessing a single sum. They are not separate heads
to be added mathematically to one another.

ANALYSIS OF ROOKES v. BARNARD

This being said, it is necessary to analyse the decision in Rookes v.
Barnard, a case, it must be remembered, of intimidation and not libel. The
only actual decision on damages must be looked for on p. 1232 where
Lord Devlin says:

" I doubt whether the facts disclosed in the summing-up show even
" a case for aggravated damages ; a different impression may be obtained
" when the facts are fully displayed upon a new trial. At present
" there seems to be no evidence that the respondents were motivated by
" malevolence or spite against the appellant. They wronged him not
" primarily to hurt him but so as to achieve their own ends.

" If that had not been their dominating motive, then what they
" did would not have been done in furtherance of a trade dispute and
" the whole case has been fought on the basis that it was. It is said
" that they persisted in believing that their closed shop position was
" endangered by the appellant's conduct even when their official leaders
" told them that it was not. Be it so; pig-headedness will not do.
" Again, in so far as disclosed in the summing-up there was no evidence
" of offensive conduct or of arrogance or insolence. It was, I think,
" suggested that some impolite observations were made about the appel-
" lant, but that is not enough ; in a dispute of this sort feelings run
" high and more than hard words are needed for aggravated damages.
" Mr. Silkin relied strongly on the flagrant breach of contract with
" B.O.A.C. and the respondents' open disregard of their pledges and
" their lack of consideration. But this was not conduct that affected the
" appellant. He was no more distressed or humiliated by it than any
" of B.O.A.C.'s passengers whose convenience, it might be said, and
" interests were brushed aside by the respondents in their determination
" to secure their object."

20

Although, as will be seen, I prefer much of what Lord Devlin said on
the subject of exemplary damages to what has been said by his subsequent
critics, and propose to follow it, the decision in Rookes v, Barnard must be
viewed in the light of these conclusions. It is not verbally inspired. But
it is a careful and valuable decision not lightly to be set aside.

The passages in the report which have given rise to criticism and discussion
go from page 1220 of the Law Report to the top of page 1231 and can
be divided conveniently into the following parts.

The first part consists in exposition of the authorities and principles which
is contained in pages 1220 to 1225 where Lord Devlin begins to draw Ms
conclusions.

These conclusions, which form the second portion of his opinion, include
the three " alleged categories " (1225-1227), the three " considerations " (1227-
1230) and finally from 1230 to 1231 the commentary and exposition of the
consequences of what he has said and these occupy the rest of the passage
under discussion.

WAS THE DECISION PER INCURIAM ?

Now, I think J must protest at the outset at the theory that Lord Devlin,
(or those members of the House who agreed with him) was speaking " per
" incuriam ". I have already dealt with the argument that his conclusions
did not follow the actual submissions of counsel on either side.

Lord Devlin was, of course, perfectly well aware that, in drawing these
conclusions from the authorities, he was making new law in the sense in
which new law is always made when an important new precedent is
established. Thus, he said:

" I am well aware that what I am about to say will, if accepted, impose
" limits not hitherto expressed on such awards and that there is powerful,
" though not compelling, authority for allowing them a wider range. I
" shall not, therefore, conclude what I have to say on the general
" principles of law without returning to the authorities and making it
" clear to what extent I have rejected the guidance they may be said to
" afford."

But a judge is always entitled to do this when the exact limits, rationale, and
the extent of a principle is being discussed, and when those limits, rationale,
and extent have never been authoritatively defined.

Nor can it be said fairly that he had ignored Ley v. Hamilton (1935) 153
L.T. 384. In fact he quoted from it at length and treated it, making allowance
for the confusion in the legal terminology at the time to which I have already
drawn attention, as a case of " aggravated " damages. I think he was right
in so doing.; although I also think Salmon L.J. was almost certainly right
in thinking that the inverted commas in which Lord Atkin puts " punitive "
are not a guide to its meaning. The word is in inverted commas for the same
reason that " real" in the earlier passage is in inverted commas. They are
quotation marks and Lord Atkin was quoting the actual words in the
judgment of Maugham L.J. which he was criticising.

"As I understand Lord Devlin's speech, the circumstances in which
" exemplary damages may be obtained have been drastically reduced;
" but the range of offences in respect of which they may be granted has
" been increased, and I see no reason since Rookes v. Barnard [1964]-
" A.C.I 129 why, when considering a claim for exemplary damages, one
" should regard the nature of the tort as excluding the claim."

WHERE SOLATIUM IS ENOUGH

The surprising thing about Rookes v. Barnard is not that Lord Devlin
restricted the award of exemplary damages viewed as an addition to or
substitution for damages by way of solatium to the three so called categories,
but that he allowed the three so called categories to exist by way of excep-
tion to the general rule. That he did this is due at least in part to the fact
that he felt himself bound by authority to do so, but partly also because
he thought that there were cases where, over and above the figure awarded
for loss of reputation, for injured feelings, for outraged morality, and to
enable a plaintiff to protect himself against future calumny or outrage of a
similar kind, an additional sum was needed to vindicate the strength
of the law and act as a supplement to its strictly penal provisions—(cf. what
he says at pp. 1226, 1230 of the report).

22

IS ROOKES v. BARNARD UNWORKABLE?

I confess I am quite unable to see why such a view of the matter is " un-
" workable ". As I have already pointed out, it has been worked in fact for
nearly eight years. On the contrary, by insisting on a single sum being
awarded for outrageous behaviour in nearly every case of tort, and allowing
the jury full vent to their legitimate feelings within the proportions set by the
injury involved, it seems to me that judge and jury are set an inherently less
difficult task than if they were told first to take into account the aggravating
factors, and then to impose an additional " fine " for the size of which they
have neither the qualifications, nor any measure by which they can limit their
discretion, particularly since neither counsel nor the judge can mention parti-
cular figures which can have any relevance to the actual case. The difficulty
consists, not in working the system of aggravated and purely compensatory
damages, where they apply, as they do in almost every case of contumelious
conduct under Lord Devlin's opinion, but in working a system of punitive
damages alongside the system of aggravated and compensatory damage. This
difficulty exists whether Lord Devlin's limitation to the categories be right
or wrong and, if it were wrong, would exist in every case, and not only in a
small minority of cases. The difficulty resides in the fact that the thinking
underlying the two systems is as incompatible as oil and vinegar, the one
based on what the plaintiff ought to receive, the other based on what twelve
reasonable, but otherwise uninstructed, men and women think the defendant
ought to pay.

THE MEANING OF THE CATEGORIES

As regards the meaning of the particular categories I have come to the
conclusion that what Lord Devlin said was never intended to be treated
as if his words were verbally inspired, and much of the criticism of them
which has succeeded reports of the case has been based on interpretations
which are false to the whole context and unduly literal even when taken in
isolation from it.

I thought and still think that that is highly anomalous. It is confusing
the function of the civil law which is to compensate with the function of the
criminal law which is to inflict deterrent and punitive penalties. Some objec-
tion has been taken to the use of the word fine to denote the amount by which
punitive or exemplary damages exceed anything justly due to the plaintiff. In
my view the word fine is an entirely accurate description of that part of any
award which goes beyond anything justly due to the plaintiff and is purely
punitive.

Those of us who sat in Rookes v. Barnard thought that the loose and con-
fused use of words like punitive and exemplary and the failure to recognise
the difference between damages which are compensatory and damages which
go beyond that and are purely punitive had led to serious abuses, so we took
what we thought was the best course open to us to limit those abuses.

Theoretically we might have held that as purely punitive damages had
never been sanctioned by any decision of this House (as to which I shall say
more later) there was no right under English law to award them. But that
would have been going beyond the proper function of this House. There are
many well established doctrines of the law which have not been the subject of
any decision by this House. We thought we had to recognise that it had be-
come an established custom in certain classes of case to permit awards of
damages which could not be justified as compensatory, and that that must re-
main the law. But we thought and I still think it well within the province of
this House to say that that undesirable anomaly should not be permitted in
any class of case where its use was not covered by authority.

In order to determine the classes of case in which this anomaly had
become established it was of little use to look merely at the words which
had been used by judges because, as I have said, words like punitive and
exemplary were often used with regard to damages which were truly com-
pensatory. We had to take a broad view of the whole circumstances.

I must now deal with those parts of Lord Devlin's speech which have
given rise to difficulties. He set out two categories of cases which in our
opinion comprised all or virtually all the reported cases in which it was
clear that the Court had approved of an award of a larger sum of damages
than could be justified as compensatory. Critics appear to have thought
that he was inventing something new. That was not my understanding.
We were confronted with an undesirable anomaly. We could not abolish
it. We had to choose between confining it strictly to classes of cases
where it was firmly established, although that produced an illogical result,
or permitting it to be extended so as to produce a logical result. In
my view it is better in such cases to be content with an illogical result
than to allow any extension.

It will be seen that I do not agree with Lord Devlin's view that in
certain classes of case exemplary damages serve a useful purpose in vindi-
cating the strength of the law. That view did not form an essential step
in his argument. Concurrence with the speech of a colleague does not
mean acceptance of every word which he has said. If it did there would

30

be far fewer concurrences than there are. So I did not regard disagreement
on this side issue as preventing me from giving my concurrence.

I think that the objections to allowing juries to go beyond compensatory
damages are overwhelming. To allow pure punishment in this way contra-
venes almost every principle which has been evolved for the protection of
offenders. There is no definition of the offence except that the conduct
punished must be oppressive, high-handed, malicious, wanton or its like—
terms far too vague to be admitted to any criminal code worthy of the
name. There is no limit to the punishment except that it must not be
unreasonable. The punishment is not inflicted by a judge who has experi-
ence and at least tries not to be influenced by emotion: it is inflicted
by a jury without experience of law or punishment and often swayed by
considerations which every judge would put out of his mind. And there
is no effective appeal against sentence. All that a reviewing court can do
is to quash the jury's decision if it thinks the punishment awarded is more
than any twelve reasonable men could award. The Court cannot substitute
its own award. The punishment must then be decided by another jury
and if they too award heavy punishment the Court is virtually powerless.
It is no excuse to say that we need not waste sympathy on people who
behave outrageously. Are we wasting sympathy on vicious criminals when
we insist on proper legal safeguards for them? The right to give punitive
damages in certain cases is so firmly embedded in our law that only
Parliament can remove it. But I must say that I am surprised by the
enthusiasm of Lord Devlin's critics in supporting this form of palm tree
justice.

Lord Devlin's first category is set out on page 1226. He said—" The
" first category is oppressive, arbitrary or unconstitutional action by the
" servants of the government. I should not extend this category—I say
" this with particular reference to the facts of this case—to oppressive action
" by private corporations or individuals". This distinction has been
attacked on two grounds: first, that it only includes Crown servants and
excludes others like the police who exercise governmental functions but are
not Crown servants and, secondly, that it is illogical since both the harm to
the plaintiff and the blameworthiness of the defendant may be at least
equally great where the offender is a powerful private individual. With
regard to the first I think that the context shews that the category was
never intended to be limited to Crown servants. The contrast is beween
" the government" and private individuals. Local government is as much
government as national government, and the police and many other persons
are exercising governmental functions. It was unnecessary in Rookes v.
Barnard to define the exact limits of the category. I should certainly
read it as extending to all those who by common law or statute are exercis-
ing functions of a governmental character.

The second criticism is I think misconceived. I freely admit that the
distinction is illogical. The real reason for the distinction was, in my view,
that the cases shewed that it was firmly established with regard to servants
of " the government" that damages could be awarded against them beyond
any sum justified as compensation, whereas there was no case except one
that was overruled where damages had been awarded against a private bully
or oppressor to an amount that could not fairly be regarded as compensa-
tory, giving to that word the meaning which I have already discussed. I
thought that this House was therefore free to say that no more than that
was to be awarded in future.

We are particularly concerned in the present case with the second
category. With the benefit of hindsight I think I can say without disrespect
to Lord Devlin that it is not happily phrased. But I think the meaning is
clear enough. An ill disposed person could not infrequently deliberately
commit a tort in contumelious disregard of another's rights in order to obtain
an advantage which would outweigh any compensatory damages likely to
be obtained by his victim. Such a case is within this category. But then
it is said, suppose he commits the tort not for gain but simply out of malice
why should he not also be punished. Again I freely admit there is no
logical reason. The reason for excluding such a case from the category is

31

simply that firmly established authority required us to accept this category
however little we might like it, but did not require us to go farther. If
logic is to be preferred to the desirability of cutting down the scope for
punitive damages to the greatest extent that will not conflict with established
authority then this category must be widened. But as I have already said
I would, logic or no logic, refuse to extend the right to inflict exemplary
damages to any class of case which is not already clearly covered by
authority. On that basis I support this category.

In my opinion, the conduct of both defendants in this case was such
that the jury were clearly entitled, if properly directed, to hold that it brought
them within the second category. Again, I do not intend to cover ground
already covered by my noble and learned friends. So I say no more than
that the jury were fully entitled to hold that the Appellants knew when
they committed this tort that passages in this book were highly defamatory of
the Respondent and could not be justified as true and that it could properly
be inferred that they thought that it would pay them to publish the book
and risk the consequences of any action the Respondent might take. It
matters not whether they thought that they could escape with moderate
damages or that the enormous expense involved in fighting an action of this
kind would prevent the Respondent from pressing his claim.

It was argued that to allow punitive damages in this case would hamper
other publishers or limit their freedom to conduct their business because it
can always be inferred that publishers publish any book because they expect
a profit from it. But punitive damages could not be given unless it was
proved that they knew that passages in the book were libellous and could
not be justified or at least deliberately shut their eyes to the truth. I
would hope that no publisher would publish in such circumstances. There
is no question of curtailing the freedom of a reputable publisher.

The next passage in Lord Devlin's speech which has caused some difficulty
is what has been called the " if but only if " paragraph on page 1228. I see
no difficulty in it but again I shall set out the substance of it in my own
words. The difference between compensatory and punitive damages is
that in assessing the former the jury or other tribunal must consider how
much the plaintiff ought to receive whereas in assessing the latter they must
consider how much the defendant ought to pay. It can only cause confusion
if they consider both questions at the same time. The only practical way
to proceed is first to look at the case from the point of view of compensating
the plaintiff. He must not only be compensated for proved actual loss but
also for any injury to his feelings and for having had to suffer insults
indignities and the like. And where the defendant has behaved outrageously
very full compensation may be proper for that. So the tribunal will fix
in their minds what sum would be proper as compensatory damages. Then
if it has been determined that the case is a proper one for punitive damages
the tribunal must turn its attention to the defendant and ask itself whether
the sum which it has already fixed as compensatory damages is or is not
adequate to serve the second purpose of punishment or deterrence. If they
think that that sum is adequate for the second purpose as well as for the
first they must not add anything to it. It is sufficient both as compensatory
and as punitive damages. But if they think that sum is insufficient as a
punishment then they must add to it enough to bring it up to a sum sufficient
as punishment. The one thing which they must not do is to fix sums as
compensatory and as punitive damages and add them together. They must
realise that the compensatory damages are always part of the total
punishment.

It was argued that the jury were not properly directed by the trial judge
on this matter. I agree with your Lordships that that argument must fail.
A judge's direction to a jury is not to be considered in vacuo. It must be
read in light of all the circumstances as they then existed and I cannot
believe that the jury were left in any doubt as to how they must deal
with this matter.

Next there are questions arising from the fact there were two defendants.
When dealing with compensatory damages the law is quite clear. There was

32

one tort of which both defendants were guilty. So one sum is fixed as
compensation and judgment is given for that sum against both defendants
leaving it to the plaintiff to sue whichever he chooses and then leaving it to
the defendant who has paid to recover a contribution if he can from the
other.

But when we come to punitive damages the position is different. Although
the tort was committed by both only one may have been guilty of the
outrageous conduct or if two or more are so guilty they may be guilty in
different degrees or owing to one being rich and another poor punishment
proper for the former may be too heavy for the latter.

Unless we are to abandon all pretence of justice, means must be found
to prevent more being recovered by way of punitive damages from the least
guilty than he ought to pay. We cannot rely on his being able to recover
some contribution from the other. Suppose printer author and publisher
of a libel are all sued. The printer will probably be guiltless of any out-
rageous conduct but the others may deserve punishment beyond compen-
satory damages. If there has to be one judgment against all three then it
would be very wrong to allow any element of punitive damages at all to be
included because very likely the printer would have to pay the whole and
the others might not be worth suing for a contribution.

The only logical way to deal with the matter would be first to have a
judgment against all the defendants for the compensatory damages and
then to have a separate judgment against each of the defendants for such
additional sum as he should pay as punitive damages. I would agree that
that is impracticable. The fact that it is impracticable to do full justice
appears to me to afford another illustration of how anomalous and indefen-
sible is the whole doctrine of punitive damages. But as I have said before
we must accept it and make the best we can of it.

So, in my opinion, the jury should be directed that, when they come to
consider what if any addition is to be made to the compensatory damages
by way of punitive damages, they must consider each defendant separately.
If any one of the defendants does not deserve punishment or if the compen-
satory damages are in themselves sufficient punishment for any one of the
defendants, then they must not make any addition to the compensatory
damages. If each of the defendants deserves more punishment than is
involved in payment of the compensatory damages then they must determine
which deserves the least punishment and only add to the compensatory
damages such additional sum as that defendant ought to pay by way of
punishment.

I do not pretend that that achieves full justice but it is the best we can
do without separate awards against each defendant.

It was argued that here again there was misdirection of the jury because
all that was not made plain to them. But again I agree with your Lordships
that in the whole circumstances we ought not to hold the direction of the
learned trial judge to be inadequate. Again the jury can have been in no
doubt as to what was required of them.

There remains what is perhaps the most difficult question in this case—
whether the additional award of £25,000 as punitive damages is so excessive
that we can interfere. I think it was much too large, but that is not the test.
I would like to be able to hold that the Court has more control over an
award of punitive damages than it has over an award of compensatory
damages. As regards the latter it is quite clear that a Court can only interfere
if satisfied that no twelve reasonable men could have awarded so large a
sum and the reason for that is plain. The Court has no power to substitute
its own assessment for the verdict of a jury. If it interferes it can only send
the matter back to another jury. So before it can interfere it must be well
satisfied that no other jury would award so large a sum. I do not see how
this House could arrogate itself any wider power with regard to punitive
damages. We could not deprive the plaintiff of his right to a new trial so
we must adhere to the established test. Any diminution or abolition of the

33

functions of a jury in libel cases can only come from Parliament. If this
case brings nearer the day when Parliament does take action I for one shall
not be sorry.

Whether or not we can interfere with this award is a matter which is not
capable of much elaboration. In considering how far twelve reasonable men
might go, acting as jurors commonly do act, one has to bear in mind how
little guidance the Court is entitled to give them. All that they can be told
is that they must not award a sum which is unreasonable. In answer to
questions whether anything more definite could properly be said neither
counsel in this case was able to make any suggestion and I have none to
offer. The evidence in this case is such that the jury could take an extremely
unfavourable view of the conduct of both defendants. I do not say that
they ought to have done so, but they were entitled to do so. And they must
have done so. I find it impossible to say that no jury of reasonable men.
inexperienced but doing their best with virtually no guidance, could reach
the sum of £25,000. Or, to put it in another way, I would feel no confidence
that if the matter were submitted to another jury they must reach a substan-
tially different result. So with considerable regret I must hold that it would
be contrary to our existing law and practice if this House refused to uphold
this verdict.

It is true that in this case the parties agreed that if the verdict for £25,000
were quashed they would leave it to this House to substitute another figure.
But that agreement cannot justify us in doing otherwise than we would
have done if the parties had stood on their legal rights. The obvious reason
for that agreement was a common desire to avoid the enormous expense of
a new trial. This is not the first occasion on which I have felt bound to
express my concern about the undue prolixity and expense of libel actions.
I would not blame any individuals. It may arise from the conduct of a
trial before a jury being more expensive than a trial before a judge. If so
that is an additional argument for taking these cases away from juries. Or
it may be that it suits wealthy publishers of newspapers, books and periodicals
that the cost of fighting a libel action is so great that none but a person
with large financial backing can sue them effectively. Whatever be the
reason the costs of this case have already reached a figure which many
laymen would call scandalous. I think that those in a position to take
effective action might take note.

Finally, I must say something about a strange misconception which appears
in the judgments of the Court of Appeal in this case. Somehow they reached
the conclusion that the decision of this House in Rookes v. Barnard was
made per incuriam, was ultra vires, and had produced an unworkable
position. It must be noted that in at least three earlier cases the Court of
Appeal were able without difficulty or question to apply that decision
(McCarey v. Associated Newspapers, Ltd. [1965] 2 Q.B. 86; Broadway
Approvals v. Odhams Press Ltd. [1965] W.L.R. 805 and Fielding v. Variety
Incorporated [1967] 2 Q.B. 841). What has caused their change of mind
does not appear but I must deal with their new view. As regards the present
position being unworkable, of course many difficulties remain in this branch
of the law, but these difficulties are an inheritance from the confusion of the
past. I have dealt fairly fully with the proper interpretation of Rookes v.
Barnard and it appears to me that that decision removes many old difficulties
and creates few if any new ones.

I need not deal separately with the novel idea that a decision of this
House can be ultra vires because that charge appears to be consequential
on the charge that this House acted per incuriam in reaching its decision.
It is perfectly legitimate to think and say that we were wrong but how
anyone could say we acted per incuriam in face of the passage on page 1230
I fail to understand.

The summing-up contained this passage: —

"... say, for example, you took the view that Mr. Irving was more
" to blame than Cassells & Co., or to be fair, you took the view that
" Cassells & Co., being an experienced firm of publishers were more to
" blame than this young man, Mr. Irving, should you make Cassells &
" Co. pay a larger sum by way of punitive damages than Mr. Irvine?
" The answer to that is No. Whatever damages, if any, you decide should
" be awarded by way of punitive damages must be the same sum in
" respect of both Mr. Irving and Cassells & Co. Ltd., if you find them
" both liable to pay punitive damages."

45

two. It may, of course, be the case that the jury did not find that one was
more guilty than the other.

On this ground, too, in my opinion the verdict cannot stand.

46

To say that a decision of this House was given per incuriam is, to say the
least, unusual and could be taken, though I cannot believe it was so
intended, as of a somewhat offensive character. While I regret the use of
this expression, I doubt if it was intended to mean more than that the
questions involved deserved more consideration in relation, among other
things, to libel actions. If that is what was meant, it is, I must confess, a
view with which I have considerable sympathy.

As I understand the judicial functions of this House, although they involve
applying well established principles to new situations, they do not involve
adjusting the common law to what are thought to be the social norms of
the time. They do not include bowing to the wind of change. We have
to declare what the law is, not what we think it should be. If it is clearly
established that in certain circumstances there is a right to exemplary
damages, this House should not, when sitting judicially, and indeed, in my
view, cannot properly abolish or restrict that right. This, indeed, was
recognised by Lord Devlin when he said (at p. 1226) that it was not open
to this House to " arrive at a determination that refused altogether to
" recognise the exemplary principle ". If the power to award such damages
is to be abolished or restricted, that is the task of the Legislature, it may
be after full and prolonged investigation by the Law Commission.

" where the conduct of the defendant merits punishment, which is
" only considered to be so where his conduct is wanton, as where it
" discloses fraud, malice, violence, cruelty, insolence or the like, or, as
" it is sometimes put, where he acts in contumelious disregard of the
" plaintiff's rights ".

A similar statement is to be found in Mayne on Damages 11th Ed. (1946)
p. 41.

" it cannot be said that English law has committed itself finally and
" fully to exemplary damages "

a view which conflicts with the opinion of Lord Devlin to which I have
referred,

" and many of the cases point to the rationale not of punishment of
" the defendant but of extra compensation for the plaintiff for the injury
" to his feelings and dignity. This is, of course, not exemplary damages
" at all. It is another head of non-pecuniary loss to the plaintiff".

Lord Devlin's first category "oppressive, arbitrary or unconstitutional
" action by servants of the government", a category which he said he would
not extend to oppressive action by private corporations or individuals, was

47

subjected to serious criticism by Taylor J. in Uren v. Fairfax supra. He
pointed out that in none of the three old cases on which this category was
apparently based, did the decisions turn on the fact that the defendants had
acted for the government. Surely it is conduct, not status, that should
determine liability. Power to award exemplary damages may be an anomaly,
but I doubt whether it is beneficial to the law to seek to reduce the area of
that anomaly at the price of creating other anomalies and illogicalities.
Surely it is anomalous if a person guilty of oppressive conduct should only
be liable to exemplary damages if a servant of the government. In these
days there are others than the government who can be guilty of oppressive
conduct. Why should they be treated differently? I can find nothing in
the three cases to indicate that if the conduct complained of had been by
persons other than servants of the government, liability to exemplary
damages would have been excluded.

Just as the definition of this category might be said to have been obiter
to the decision in Rookes v. Barnard, so might consideration of it be regarded
in this case. Nevertheless as Rookes v. Barnard has to be considered in this
appeal in consequence of the action taken by the Court of Appeal, I feel
I should express my opinion which is that this narrow definition does not
appear to me to be justified by the authorities on which it was based.

It may also be contended that Lord Devlin's second category is also too
narrowly drawn for why should conduct lead to exemplary damages if
inspired by the profit motive or some material interest, and similar conduct
due to other motives not do so. But the substantial criticism that can be
made is that by his categorisation, the previously existing and recognised
power to award exemplary damages is restricted. Lord Devlin indeed appre-
ciated the novelty of what he was doing when he said that acceptance of his
views " would impose limits not hitherto expressed on such awards " (p.
1226). I do not think that this should have or could properly be done. It
should have been left to the Legislature.

This conclusion does not, however, mean that the jury's verdict as to
liability must be interfered with. It was urged that Cassell's decision to call
no evidence was based on the assumption that Rookes v. Barnard applied—
and that the issue was, did the case come within the second category. While
it may be that the plaintiff would have presented his case differently but for
what was said in Rookes v. Barnard, the defendants had to meet the case as
presented whether or not Rookes v. Barnard applied, and it was in relation
to that case that they decided to call no evidence. As the case presented
would prior to Rookes v. Barnard, if established, have justified the award of
exemplary damages, I cannot accept that the defendants might have reached
a different decision about calling evidence on the case as presented if Rookes
v. Barnard had not been followed.

I now turn to the passage in Lord Devlin's speech dealing with the assess-
ment of damages, a passage which, save in the respect to which I have
referred, was closely followed by Lawton J. in his summing-up.

I think that Salmon L.J., as he then was, correctly summarised the pre-
Rookes v. Barnard practice when he said: —

" Judges used to direct juries in libel actions that, if they found in
" favour of the plaintiff, they should award him a sum which would
" make it plain to the world that there was no truth in the libel and
" which, as far as money could do so. would compensate him for the
" distress, humiliation and annoyance which the libel had caused him.
" They were also told in appropriate cases that they could take the
" whole of the defendant's conduct into account down to the moment
" they returned their verdict, and that if they came to the conclusion that
" he had behaved outrageously they might, as a deterrent, reflect their
" disapproval of the defendant's conduct in the amount of the damages
" which they awarded. At the same time they were always warned to
" be fair and reasonable and not to allow themselves to be inflamed
" against the defendant but to decide dispassionately what in all the
" circumstances would be a reasonable sum to award."

48

The summing up in Loudon v. Ryder [1953] 2 Q.B. 202 which was
approved by the Court of Appeal, also recognised that outrageous conduct
was a ground for exemplary damages. That appears to be the first case in
which a jury was asked to award separate sums for exemplary and for com-
pensatory damages and in which it was suggested that the amount awarded
for exemplary damages was to be regarded as the imposition of a fine.

In Ley v. Hamilton (1934) 151 L.T. 360 the Court of Appeal by a majority
(Greer and Maugham L.JJ's: Scrutton L.J. dissenting) allowed an appeal
from a jury's verdict awarding £5,000 damages for libel, one ground for the
decision being that the damages awarded were excessive; Maugham L.J.
saying that the sum could not be described

" as a fair or reasonable compensation for the damages which the
" plaintiff "

had suffered, that the verdict could only be justified on the view that the jury
were exercising the right to give vindictive or punitive damages, and that

" when the damages in question are really not compensation for an
" injury sustained by the plaintiff but in the nature of a fine inflicted
" on the defendant "

the Court of Appeal would be compelled to interfere.

In this House ((1935) 153 L.T. 384) Maugham L.J.'s approach was
rejected by Lord Atkin in a speech with which Lords Tomlin, Thankerton,
Macmillan and Wright agreed. Part of the relevant passages of Lord Atkin's
speech were cited by Lord Devlin but two sentences which I underline and
which I regard as important were omitted.
The full passage is as follows: —

"The fact is that the criticism" (Maugham L.J.'s) "with great
" respect seems based upon an incorrect view of the assessment of
" damages for defamation. They are not arrived at as the Lord Justice
" seems to assume by determining the ' real' damage and adding to
" that a sum by way of vindictive or punitive damages. It is precisely
" because the 'real' damage cannot be ascertained and established that
" the damages are at large. It is impossible, to track the scandal, to
" know what quarters the poison may reach: it is impossible to weigh
" at all closely the compensation which will recompense a man or a
" woman for the insult offered or the pain of a false accusation.
" No doubt in newspaper libels juries take into account the vast
" circulations which are justly claimed in present times. The ' punitive '
" element is not something which is or can be added to some known
" factor which is non-punitive. In particular it appears to present no
" analogy to punishment by fine for the criminal offence of publishing
" defamatory libel."

Maugham L.J. did not in his judgment refer to " real " damage. I think
it is clear that by " real " damage Lord Atkin meant the damage which
the plaintiff had suffered.

Yet is not the very process condemned in Ley v. Hamilton that which it
was said in Rookes v. Barnard should be followed and that which, pursuant
to Rookes v. Barnard, was followed in this case? Lord Atkin said that
for the reasons he gave " real " damage i.e., compensatory damage, could
not be ascertained and established. Under Rookes v. Barnard a jury is
to be directed that that which Lord Atkin said could not be done, is to be
done and " compensatory " damages assessed first. The punitive element is
not something that can be added. Yet in Rookes v. Barnard it is said that
it should be added if, but only if, the compensatory damages are insufficient.
Lord Atkin said that there was no analogy to punishment by a fine for a
criminal libel, yet following Rookes v. Barnard, juries are told that punitive
damages amount to a fine.

I must confess my inability to reconcile the views of this House as
expressed in Ley v. Hamilton with those expressed in Rookes v, Barnard.

Before Rookes v. Barnard the words " aggravated", " punitive".
" exemplary " and " retributory " were used indiscriminately to indicate that
the damages awarded might be enhanced and might contain a punitive

49

element. By Rookes v. Barnard precise meanings were attached to the words
"aggravated "and "exemplary ". Lord Devlin recognised (at p. 1221) that
the jury could take into account the motives and conduct of the defendant
where they aggravate the injury to the plaintiff. " There may be " he said
" 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 ". So where the injury is aggravated, an addition can be
made to the compensatory damages.

For the reasons I have stated, I would allow the appeal.

Lord Wilberforce

my lords,

50

in the book principally complained of reflected upon the conduct of officers
of the Royal Navy, in combat conditions, there was an obvious danger that
the jury may have become inflamed. This made it particularly necessary
that there should be a dispassionate and cool review of the sums awarded
and of the summing-up in the Court of Appeal.

If matters had taken their proper and normal course, these matters should
have been disposed of within a few days—by dismissal of the appeal or
by an order for a new trial, and no question of appeal to this House would
have arisen.

This did not happen. The trial had been conducted properly, and inevi-
tably upon the basis that the law to be applied as regards any claim for
punitive damages was that staled by this House in Rookes v. Barnard [1964]
A.C. The learned judge considered that he was bound by what was said
in this House, as he clearly was. But in the Court of Appeal argument
was admitted to the effect that Rookes v. Barnard, on punitive damages,
was wrong and should not be followed: the Court of Appeal so decided,
and three judgments, separate exercises in forceful advocacy, were delivered
giving their reasons.

The course permitted and taken was doubly surprising. First, there was
nothing new about Rookes v. Barnard. It was decided in 1964: it had
been followed and applied in England by the Court of Appeal itself three
times since then in, amongst others, libel cases without difficulty or protest
by any of the Lords Justices involved. Secondly, it was, on the view of
the facts which the Court of Appeal took, unnecessary for the decision of
the appeal to decide whether Rookes v. Barnard on punitive damages was
right or wrong. The Court of Appeal, having held that it was wrong, still
dismissed the appeal, and in an alternative passage held that the same
result followed if it was right.

The consequences for the present litigants have been heavy. An appeal
has been brought here and argued for thirteen days. Counsel for the Appel-
lant were forced into the necessity of arguing at length that Rookes v.
Barnard is right, and this argument was answered on the Respondent's
side. A mountain of costs has piled up and it is as well that the size of
this should be understood: it is open on the record. As shown by the
Order of the Court of Appeal, (he plaintiff's costs at the trial have been
taxed at £22,000. His costs as assessed in the Court of Appeal are £7,000.
His costs in this House must exceed this figure. The taxed costs of the
defendants are unlikely to be less: there will be further solicitor and own
client costs on either side. It may not be unfair to put the aggregate bill,
which an unsuccessful party may have to bear, at more than £60,000. It
would be entirely unfair to suggest that the whole, or even half this sum, is
due to the course taken in the Court of Appeal—the greater part flows
from the inherent nature of our system. But it is necessary to say that in
a legal system so extravagant and punitive as to costs as ours is in civil
cases, and particularly libel actions, the addition of further burdens, and
here they were certainly considerable, carries the result further into an
unacceptable area of injustice. England has not the equivalent of the New
South Wales Suitors Fund Act, 1951, nor of the Victoria Appeal Costs
Fund Act, 1964, so when the machinery creaks it is the private litigants
who pay. I have felt deep concern about this throughout the hearing.

My Lords, observations have already been made on other aspects of the
Court of Appeal's judgments. I concur entirely with what has been said,
and the fact that for reasons of space I abstain from using my own words
does not mean that my concurrence is any the less wholehearted.

I proceed to the principal task we have, which is to decide the present
appeal. Before examining the summing-up, on which the jury's verdict
was based, it is necessary to establish the law. This involves some re-
examination of those parts of the decision in Rookes v. Barnard which
relate to punitive damages.

I shall consider Rookes v. Barnard under three heads. First, as to the
analysis it contains of damages in tort cases: secondly, as to defamation
actions in relation to Lord Devlin's second category—both of these being

51

directly relevant to the present case: thirdly, and briefly, as to the first and
second categories, their inclusions and exclusions.

* See as to Canada 48 Canadian Bar Review (1970) p. 373.

52

daily unreported practice of the courts. Its place in the law has been
endorsed by many eminent judges in terms which clearly recognise the puni-
tive element. The principle of punitive damages has been recognised by the
High Court of Australia on five occasions, by the Supreme Court of Canada
and by the Supreme Court of the United States of America.

To my mind the strongest argument against it is that English law already
contains a heavy, indeed exorbitant, punitive element in its costs system;
contrast the United States where it is the absence of this (advocate's costs
not being normally recoverable) which is invoked as a justification for
punitive damages. One or other must clearly be reformed, and it is Parlia-
ment alone that can do it.

I take the discussion one step further, because the point is very relevant
here. In Lord Devlin's opinion the distinction is made between aggravated
damages and punitive damages; it is said that many of the authorities are
really cases of aggravated damages though other words are used, that apart
from the exceptional cases included in the three categories, aggravated
damages are the appropriate and sufficient remedy. Although I doubt very
much whether all the cases can be explained in this way—to do so seems
to attribute a high degree of confusion of thought or inaccuracy of expression
to judges of eminence—there is attraction in the distinction. It has the
advantage, to some minds, of reducing the area of " punitive " damages, and
of bringing the remedy nearer to " compensation ".

But closer examination causes one to doubt whether the separation, other-
wise than in analysis, of compensatory from punitive damages does not
involve some real danger in practice. As Windeyer J. said in Uren's case
(117 C.L.R. 118, 152) "What the House of Lords has now done is ... to
" produce a more distinct terminology. Limiting the scope of terms that
" often were not distinguished in application makes possible an apparently
" firm distinction between aggravated compensatory damages and exemplary
" or punitive damages. How far the different labels denote concepts really
" different in effect may be debatable. I suspect that in seeking to preserve
" the distinction we shall sometimes find ourselves dealing more in words
" than ideas." [cf. Salmond on Torts 15th Ed. (1969) which maintains the
old " confusion ".] The distinction does not in my belief greatly correspond
to what happens in reality. Take a common case: a man is assaulted, or
his land is trespassed upon, with accompanying circumstances of insolence
or contumely. He decides to bring an action for damages, he need not
further specify the claim. Is he suing for compensation, for injury to his
feelings, to teach his opponent a lesson, to vindicate his rights, or " the
" strength of the law ", or for a mixture of these things? Most men would
not ask themselves such questions, many men could not answer them. If
they could answer them, they might give different answers. The reaction to
a libel may be anything from " how outrageous " to " he has delivered
" himself into my hands ". The fact is that the plaintiff sues for damages,
inviting the court to take all the facts into consideration, and, if he wins,
he may ascribe his victory to all or any of the ingredients.

As, again, Windeyer J. has said, the amount of the verdict is the product
of a mixture of inextricable considerations (117 C.L.R., 118, 150). Sedgwick
(Measure of Damages, 3rd Ed. 1858) said " Where either of these elements
" [sc. malice, oppression etc.] mingle in the controversy, the law, instead of
" adhering to the system, or even the language of compensation adopts a
" wholly different rule. It permits the jury to give what it terms punitive,
" vindictive or exemplary damages, in other words, it blends together the
" interests of society and of the aggrieved individual and gives damages not
" only to recompense the sufferer but to punish the offender. This rule . . .
" seems settled in England and in the general jurisprudence of [U.S.A.]".
Lord Atkin said just this in Ley v. Hamilton (1935) 153 L.T. 384 in a
passage (cited in other opinions, vide that of Viscount Dilhorne) which, if
any in modern times, is clear and authoritative. Dixon C.J. endorsed the
principle—see citation below—as did the key passage in Halsbury's Laws
of England (Vol. 11, page 223) cited by the Lord Chancellor. To segregate
the punitive element is to split the indivisible and to invite the stock criticism
(vide Street 1.c.) that civil courts have no business to impose fines.

53

I regret that this rather lenthy analysis has been necessary before I deal
with the present appeal: but in my view it is fundamental to a consideration
of the summing-up.

The full account of the trial which has been given in previous opinions
enables me to summarise. The critical stages were these (page references
are to the appeal record Appendix Part II):

1. The jury were told that there were two aspects of damages, compensa-
   tory and punitive. They were asked first to consider compensatory damages.
   They had read to them a passage from the judgment of Pearson L.J. in
   McCarey v. Associated Newspapers [19651 2 Q.B. 86) in which it was said
   in clear terms that if there had been any high-handed, oppressive or con-
   tumelious behaviour which increased the mental pain and suffering caused
   by the defamation, this might be taken into account (pages 91-3).

2. The judge then pointed out that Captain Broome had suffered no
   actual pecuniary loss: that he had not been shunned by his comrades:
   that the trial had been conducted without exacerbation: but that what was
   said in the book might be very wounding to his feelings (pages 93-98).

3. The learned judge then dealt with punitive damages by reference to
   the second category in Rookes v. Barnard, cited the words of Widgery J.
   in Manson v. Associated Newspapers [1965] I W.L.R. 1038 and said: " You
   " are being asked here not only to give Captain Broome compensatory
   " damages, that is, a reasonable sum for the injury to his reputation and
   " the exacerbation of his feelings; but in addition to fine Cassells and Mr.
   " Irving for having done what they have done . . . You are really in the

54

" position of a judge or a magistrate trying a criminal case; you have got,
" so to speak, to fine the defendant" (page 101) (emphasis supplied) and he
gives examples of reasonable and unreasonable fines.

Later he gives lengthy directions relevant to the second category (was
there a calculation of profit etc.) and on the next day returns finally to
damages (page 137).

(4) The final direction as to damages consisted of the statement of ques-
tions for the jury and explanation of them. The first question (No. 3)
is " What compensatory damages do you award the plaintiff? " The sum-
ming up continues—" Then having decided what are the proper additional
" (sic) compensatory damages you will go on and consider the fourth ques-
" tion, namely, ' Has the plaintiff proved that he is entitled to exemplary
" ' damages? ' " and directs the jury to consider this in relation separately
to each defendant. Lastly there is this passage—" Then you see the last
" question under this heading, ' What additional sum should be awarded
"' him by way of exemplary damages? ' Would you be good enough to
" underline the word ' additional', because I want to know, and learned
" counsel want to know, if you do decide to award punitive damages, how
" much more do you award over and above the compensatory damage."
The result of this was an award of £15,000 compensatory damages and
£25,000 as an additional sum for exemplary damages.

My Lords, I regret to have reached the conclusion that this verdict ought
not to stand. Apart from the reasons given by my noble and learned friend,
Lord Diplock, with which I respectfully agree, I think for myself that the
separation of the element of compensatory damages from that of punitive
damages, brought about through the interpretation placed on the second
category and the application of it, involving, as it did, the need to fix com-
pensation (plus aggravation) first, see if the case came within the category,
and then fix a separate punitive sum, is fundamentally wrong. It has
brought about precisely the result which was to be feared from breaking
down the indivisible whole, namely, of fixing a compensation figure swollen
by aggravation and then adding a fine on top—a fine in this case exceeding
greatly the aggravated compensation. If the matter rested on the figures
alone, I should find the greatest difficulty in supporting, even with all the
inhibitions properly felt against substituting a judicial opinion for that
of the jury, so large a punitive element, particularly in a case such as this
where the libel was considered to be (I say nothing as to my own opinion)
of a most wounding character, so that the " compensatory " damages must
necessarily include a large " punitive " element. But when it is seen how
the jury were directed to calculate, and the direction was certainly clear
and certainly and visibly acted on, their figures become impossible to accept.

In argument the issue was put in the form whether the judge's direction
complied with Lord Devlin's " if but only if " advice (1.c. page 1232). I
think that it certainly did not. The dangers of separating the compartments
(compensatory damages and punitive damages) in so watertight a way
are so great, as I have tried to explain: indeed, in my opinion, so wrong
in principle that I doubt very much whether any instructions, in a difficult
case, could avoid them. That is why I think that any interpretation placed
on Rookes v. Barnard which requires this separation, or authorises it, and
the introduction of the profit gateway which almost compels it, ought to be
discarded. But however that may be, the directions given fall far short
of what was necessary—I say this without any criticism of the learned
judge who was merely following Rookes v. Barnard as previously applied
by the Court of Appeal. When all is said the warning to the jury against
the danger was contained in the word " additional" in question 4. I think
this was not enough, for they had been told that they could inflict a fine.

For these reasons, without committing myself to any particular figure
if we were called upon to substitute one, I agree with the conclusion of my
noble and learned friend, Lord Diplock, as to the necessity for a new
trial on the question of punitive damages.

55

I must add one other point. This is the question of a joint award of
damages against two wrongdoers, publisher and author. There is no doubt
that the existing law is ill adapted to deal fairly with a case where " guilt"
of joint defendants is unequal. But it is clear enough what the law is: it is
state by the Lord Chancellor in terms which I need not repeat. In the
Court of Appeal the Master of the Rolls said that the jury were free to
decide whether to fix punitive damages at the highest figure, the lowest
figure, or at a figure between the two and I fear that the jury may well
have proceeded on this somewhat libertarian view of the law. One may
escape from the conclusion that this vitiates the verdict by assuming that
the two defendants were equally " guilty ", but I am not prepared to make
this assumption or to ascribe a view to that effect to the jury. I think that
the jury must have been, at best, confused, at worst misled by the direction,
and I cannot accept that acquiescence by counsel validates the defect.

I must now deal as briefly as I can with other aspects of the judgment
in Rookes v. Barnard. I deal first with its effect on the law of damages for
defamation.

I am far from convinced that Lord Devlin ever intended to alter the
law as to damages for defamation or intended to limit punitive damages in
defamation actions to cases where a " profit motive " is shown. (I use this
compendiously for the formula in his second category.) I summarise the
reasons:

1. Defamation is normally thought of as par excellence the tort when
   punitive damages may be claimed. It was so presented in argument by
   counsel for the Respondent (arguing against punitive damages) and he was
   an acknowledged expert in the subject. Every practitioner and every judge
   would take this view.

2. Lord Devlin's passage where he sets up his second category does
   not refer to any defamation case, but to three other miscellaneous cases which
   he illuminatingly bases in the profit motive. He makes merely an incidental
   reference to libel where he says the profit motive is always a factor, not, it
   should be observed, a condition.

3. It is difficult to believe that Lord Devlin was intending to limit the
   scope of punitive damages in defamation actions so as to exclude highly
   malicious or irresponsible libels. At least if he intended to do so at a
   time when the media of communication are more powerful than they have
   ever been and certainly not motivated only by a desire to make money,
   and since elsewhere the judgment shows him conscious of the need to sanction
   the irresponsible, malicious or oppressive use of power, I would have expected
   some reasons to be given.

If we cannot interpret his judgment as leaving libel outside category 2
as a separate case, well known to everyone, in which punitive damages may
be given in familiar circumstances and as stating category 2 as a qualification
for other cases, hitherto not explained or rationalised, then since the disposal
of defamation actions was there dealt with briefly, I would say incidentally,
and obiter, I consider that in this case where we are directly concerned with
such an action we should disagree with it.

This would leave the law as I understand it to be in Australia and Canada,
countries where, in this respect, there is not known to me to be any such
difference in " social conditions " as to call for the recognition, by this House,
judicially, of a divergent law. If changes are to be made, they should be
made, after proper investigation, by Parliament.

I would add, with reference to this point, that the present case well
illustrates the irrationality of the supposed new principle. For if the profit
motive is essential for the recovery of punitive damages, one would expect
the damages given to bear some relation to the supposed profit and/or to
the means of the offender: the idea (if there is any logic in the requirement)
must be to take the profit out of wrongdoing. Yet there was not, and in
many such cases cannot be, any real consideration of the likely profit or of

56

the offender's means. There was no evidence what these might be and the
jury were given no guidance. How, then, could the punitive £25,000 be
other than an arbitrary guess? If one replies that it represents the jury's
view of the defendants' conduct (as it probably did) what purpose is served
by introducing the profit motive gateway?

Finally, as to other torts as to which, before Rookes v. Barnard, punitive
damages could be given but on which some restriction is evidently intended
to be placed by the judgment. That this House, as a matter of law, or of
legal policy, was entitled to restrict the scope of punitive damages I have,
with all respect to the Court of Appeal, no doubt and, whatever my own
reservations as to the wisdom of the policy, I should feel myself obliged
to accept a new statement of principle if it were clear, consistent and
workable and intelligibly related to the main stream of authority. That it
was not entirely clear, appears well enough from the opinions in the present
case: and I cannot entirely blame the Court of Appeal for attempting to
escape from it, just as one may sympathise with a customer when he finds his
new suit almost at once requiring alteration, or patching, for putting it aside
and reaching for his old tweedes. There is not perhaps much difficulty
about category 1: it is well based on the cases and on a principle stated in
1703—" if public officers will infringe men's rights, they ought to pay greater
" damages than other men to deter and hinder others from the like offences "
Ashby v. White 2 Ld. Ray. 956 per Holt C.J. Excessive and insolent use of
power is certainly something against which citizens require as much protection
today: a wide interpretation of " government" which I understand your
Lordships to endorse would correspond with Holt C.J.'s " public officers "
and would partly correspond with modern needs. There would remain,
even on the most liberal interpretation, a number of difficulties and incon-
sistencies as pointed out by Taylor J. in Uren's case.

I have more difficulty with the commonplace types of trespass or assault
accompanied by insult or contumely, which, even more than " first category "
cases touch the life of ordinary men and occupy the county courts. Although
Lord Devlin studiously refrains from overruling earlier cases (other than
Loudon v. Ryder) which undoubtedly proceeded on, or contained, a punitive
element, his opinion has been understood as laying down that in future such
cases cannot, unless the " profit motive " is present, be treated as cases for
punitive damages but only as cases for aggravated damages. The phrase
used has been " aggravated damages can do the work of punitive damages ".

I understand that a majority of your Lordships, for possibly differing
reasons, are satisfied with this so it will remain the law in this country. But,
if only in fairness to the Court of Appeal with whose approach to this
matter I agree, I must state very briefly why I feel some difficulty.

I am far from clear how juries, or judges, are intended to act in the future.
Are they to take it that the law has been changed, so that (absent a profit
motive) only " compensatory " damages can be given, plus an element for
" aggravation " if that is proved? I fear that there will be difficulty in seeing
how far earlier cases, or Commonwealth cases, are now authority and that
there will be much argument whether a particular case was one of
" aggravated" or " punitive" damages or of both. Alternatively, if
"aggravated damages " are " to do the work of punitive damages " and if it
is to be supposed that juries, or judges, will continue giving damages much
as before, then nothing has been gained by changing the label and we are
indulging in make belief and encouraging fictional pleading. The whole point
is well brought out by Pearson L.J. in McCarey v. Associated Newspapers
(supra.)—" if the compensatory principle is accepted, punitive damages must
" not be allowed to creep back into the assessment in some other guise "
(1.c. page 105). I must confess to sympathy with the Court of Appeal's
preference for the older system and with the objections to the new stated by
Taylor J. in Uren's case, the weight of which clearly impressed the Privy
Council. Their validity has been endorsed by cases post-Rookes v. Barnard
in Australia, Canada and New Zealand. I share their doubt whether we
have yet arrived at a viable substitute.

57

But I note with satisfaction and agreement the opinion expressed by the
noble and learned lord on the Woolsack that the relevant passage in Lord
Devlin's judgment, which he cites, should be read sensibly as a whole together
with the authorities on which it is based. This may provide a sound basis for
re-development of the law.

My Lords, on all other points not expressly dealt with in this opinion I
wish to express my concurrence with that of the Lord Chancellor. I regret
to differ from him in thinking that the appeal should be allowed 'on the
grounds I have stated.

Lord Diplock

my lords,

63

64

that there were circumstances in which a power to award exemplary damages
still served a useful social purpose and the descriptive words must be
understood in the light of the social purpose which they were designed
to serve.

65

inevitable in a hierarchical system of courts that there are decisions of
the supreme appellate tribunal which do not attract the unanimous ap-
proval of all members of the Judiciary. When I sat in the Court of Appeal
I sometimes thought the House of Lords was wrong in over-ruling me. Even
since that time there have been occasions, of which the instant appeal itself
is one. when, along or in company, I have dissented from a decision of
the majority of this House. But the judicial system only works if someone
is allowed to have the last word and if that last word, once spoken, is loyally
accepted.

Lord Kilbrandon

my lords,

There are several reasons which induce me to be as brief as I can. First,
the case in its important general aspects is concerned with doctrines, and
to some extent with procedures, with which I am not familiar. Secondly,
66

those general aspects have been examined in great detail and in an authorita-
tive manner by your Lordships who have preceded me. Thirdly, since it is
unlikely that any contribution of mine would be regarded as of value in
clarifying the law of England, I may at least wind up the consideration of a
disastrous case with economy, the lack of which, especially in this class of
litigation, is, as others of your Lordships have observed, a notoriously
discreditable feature of our jurisprudence. In short, having had the advantage
of reading the speeches prepared by my noble and learned friends the Lord
Chancellor, Lord Reid and Lord Morris of Borth-y-Gest, I agree with them.

67

made, per contra, for causes of action subsisting against the estates of
deceased persons. Since punitive damages are punitive or deterrent against
the author of them, it would have been understable if the statute had refused
to allow them against a dead man. But, instead, they have been disallowed
when they are claimed in respect of an injury to a dead man. This leads
me to suppose that by the phrase " exemplary damages " Parliament was
here referring to what are usually called " aggravated " damages; the estate
of a dead man must pay them in order to indemnify the living, but the
estate of a dead man, whose feelings post mortem have become irrelevant,
does not receive them.

68

Finally, I do not consider it necessary for me to say anything on the issue
of the relations between this House and the Court of Appeal, except that I
entirely agree with what has fallen from the Lord Chancellor on this topic.

I would, accordingly, dismiss this appeal.

(322814) Dd. 197075 150 2/72 St.S.