Plato Films Ltd v Speidel

March 2. Viscount Smmonps. My Lords, this appeal raises an
interesting question, but it is one to which I have no doubt that
the Court of Appeal has given the correct answer.

The respondent was at all material times the Supreme
Commander of the Allied Land Forces in Central Europe. He
brought the action out of which this appeal arises against the
appellants, Plato Films Ltd., and two directors of that company,
claiming damages for libel and an injunction. The libel alleged
was that in a film called '' Operation Teutonic Sword,'' which
was exhibited and published by them at the National Film
Theatre, London, on November 19, 1958, he had by words and
photographic pictures been depicted (a) as a party to the murders
of King Alexander of Yugoslavia and M. Barthou in October,
1934, and (b) as having betrayed Field-Marshal Rommel to the
Nazis in or about June, 1944.

By their defence the appellants pleaded that the words and
photographie pictures were true in substance and in fact. But,
in addition to this plea of justification, they sought to put in
a plea which I must set out in full. It was as follows: [His
Lordship read paragraph 5 of the defence and continued: ] The
paragraphs to which reference is made in the plea are from the
Kinglish text of the film.

SON RY nado Mi 12s 100 8° Q.B.D. 491.

A.C. AND PRIVY COUNCIL.

The respondent forthwith applied in chambers that this plea
should be struck out of the defence on the ground that it was
scandalous and contrary to the rules of pleading and tended to
prejudice, embarrass or delay the fair trial of the action. The
master in chambers ordered that it should be struck out and his
order was upheld by Sachs J. The appellants appealed to the
Court of Appeal, who in part allowed their appeal, in that they
were permitted to plead as follows: '' Alternatively in mitigation
'of damages the defendants will at the trial of this action give
"evidence in chief that the plaintiff had on or before November
"19, 1958, a bad reputation as a man who was a party to and/or
"responsible for acts which were war crimes and/or against
'humanity and/or atrocities.'' The respondent has not appealed
against this order and I say nothing about it. It must be left to
the trial judge to determine what evidence he will admit. But
this was not enough for the appellants, who by their appeal to
this House ask that their plea should be restored in its entirety.

My Lords, I do not think that the Court of Appeal could have
come to a different conclusion so far as they affirmed Sachs J. if
this case had come before them in or before the year 1882. For
already by that time the clear preponderance of authority extend-
ing over a considerable period was that evidence of particular acts
of misconduct on the part of the plaintiff could not be given in
mitigation of damages where the defendant had failed to justify
the libel of which the plaintiff complained. I find it unnecessary
to examine this volume of authority, for that task was thoroughly
performed by Cave J. in Scott v. Sampson! in a judgment which
has to this day never been challenged. His conclusion was that:
"As to... evidence of facts and circumstances tending to show
'' the disposition of the plaintiff, both principle and authority seem
'' equally against its admission. At the most it tends to prove
'not that the plaintiff has not, but that he ought not to have, a
'' good reputation, and to admit evidence of this kind is in effect
''as was said in Jones v. Stevens? to throw upon the plaintiff
'' the difficulty of showing a uniform propriety of conduct during
'his whole life. It would give rise to interminable issues which:
''would have but a very remote bearing on the question in
'dispute, which is to what extent the reputation which he
'' actually possesses has been damaged by the defamatory matter
'' complained of. Among all the cases which have been reviewed

1 (1882) 8 Q.B.D. 491, 504-505. 2 (1822) 11 Price 235.

1125

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1124 HOUSE OF LORDS [1961].

H. L. (E.) '' there is not one which can be cited in support of the admis-

1961 '' sibility of this evidence. In Bracegirdle v. Bailey* such
-———— ''evidence was rejected by Byles J., after consulting with Willes
oe ''J., and in Jones v. Stevens* the evils attending its admission

Ske '' are eloquently pointed out."'
SPEIDEL.

That was in 1882. In the year 1929 Hobbs v. C. T. Tinling &
viscount ~—_ Co. Ltd.® came before the Court of Appeal, and though the ques-
a tion in that case was not precisely the same, the court made it
very clear that Scott v Sampson ** had been correctly decided.
The judgment of Cave J., said Scrutton L.J., had been accepted
as an accurate statement of the law. But, said the appellants,
it had never been reviewed in this House. That is true and, long
though the decision has stood unchallenged, I should not hesitate
to reverse it, if (to use the language of Lord Wright in Admiralty
Commissioners v. Valverda (Owners) *) it was one of those cases
in which serious inconvenience would follow from perpetuating an
erroneous construction or ruling of law. But it is far, indeed,
from being such a case. That the law was misunderstood or mis-
stated by Cave J. and Scrutton L.J. seemed to me after a fresh
review of all the authorities discussed in Scott v. Sampson" an
impossible contention. In effect, therefore, the plea of the appel-
lants was that the law was not what it ought to be. That is a
plea to which this House is not inclined to listen when it is
sitting as a supreme appellate tribunal, and perhaps I should
ignore it. But I cannot refrain from observing how emphatically
I dissent from the view that the law should be altered to the
advantage of those who make defamatory statements about
others. The defences that are open to one who does so are
numerous and adequate. If none of them is available to him what
excuse has he, and why should any indulgence be shown him?
It is, of course, possible that the so-called '' notorious rogue '' may
recover damages which a perfect system of justice would deny
him. But it does not follow that, because he receives more than
he ought, the libeller pays less than he ought. I have some
sympathy for the view expressed so eloquently by Wood B. in
Jones v. Stevens ® that even evidence of general bad reputation
should be excluded. But I recognise that the law admits it.
It is, no doubt, true that in practice it may be difficult to define

3 (1859) 1 F. & F. 536. 6 [1938] A.C. 178, 194; 54 T.L.R.
4 11 Price 235. 305; [1988] 1 All E.R. 162, H.L.
5 [1929] 2 K.B. 1; 45 T.L.R. 828, 78 Q.B.D. 491.

C.A 8 11 Price 235.

5a 8 Q.B.D. 491.

A.C. AND PRIVY COUNCIL.

exactly either the borderline between evidence of general bad
reputation and that of specific conduct which has led to it or the
area of conduct which the general bad reputation is to cover.
That is only to say that a libel action is an imperfect instrument
for doing justice in every case. There may, in the result, be cases
in which a rogue survives both evidence of general bad reputation
and, where he has gone into the witness-box, a severe cross-
examination nominally directed to credit, and recovers more
damages than he should. But I would rather have it so than that
the law should permit the injustice and, indeed, the cruelty of an
attack upon a plaintiff for offences real or imaginary which, if they
ever were committed, may have been known to few and by them
have been forgotten. I say nothing more of the inconvenience of

having one or more trials within the original trial. The main —

issue has been determined when the defendant has failed in his
plea of justification. How many other trials of the offences
pleaded in mitigation are to be permitted?

There is one aspect of the appellants' plea in mitigation which
deserves special mention. They plead that the respondent has
been depicted in the film as having been " guilty of the conduct
'" hereinafter set out the truth of which the plaintiff . . . does not
'"' deny.''{ It surprises me that it should be considered a proper
matter for pleading that a plaintiff has not thought fit to include
in his action every libellous statement made about him by a
defendant. It is, in my opinion, wholly improper.

My Lords, I do not think it necessary to say anything about
R.S.C., Ord. 36, r. 387. Its operation is expressly limited to
those cases in which justification is not pleaded, and no relevant
implication can be fairly drawn from it in regard to cases in which
it is pleaded. I am the less inclined to do so because the very
experienced counsel who appeared at the bar on this appeal
professed great doubt as to its meaning and effect. In any case,
it does not, and does not purport to, alter the common law as
laid down in Scott v. Sampson®: see Mangena v. Wright.'

Finally, I must say something upon a question which was
much discussed before your Lordships, though it does not arise
upon the face of the order under appeal. In his judgment
Devlin L.J. said }!: '' It will also be for him [the trial judge] to
'* determine whether the jury should see the whole film, including

© 8 Q.B.D. 491. 11 [1960] 3 W.L.R. 391, 396;
10 [1909] 2 K.B. 958; 25 T.L.R. [1960] 2 All E.R. 521.
534.

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j

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HOUSE OF LORDS © [1961]

'' those parts which are supposed to represent the plaintiff as a
' war criminal, or whether they should see only the parts that are
'' relevant to the libel. We express no opinion on these matters
'because we are concerned with questions of the admis-
'' sibility of evidence only in so far as they enter into the point
'of pleading.'' It was urged on behalf of the appellants that it
is a rule of law that in a libel action the defendant has the right
to have exhibited to the jury the whole of the film or other
publication in which the libel is contained, and that the judgment
of the Court of Appeal implied that there was no such right, but
that it lay in the discretion of the trial judge to determine whether
there should be such an exhibition. I am not sure that the Court
of Appeal meant to decide anything of the kind. But, in any
event, I think it right to say that it will be the duty of the trial
judge first to determine whether (as the appellants allege) in all
circumstances the defendant has such a right and, if he answers
this question in the negative, then to consider whether in the
circumstances of this case the right should be conceded. These
are matters upon which it would not be right at this stage for your
Lordships to come to any conclusion.
The appeal should, in my opinion, be dismissed with costs.

Lorp Rapvcuirre. My Lords, this appeal is wholly concerned
with questions of pleading in preparation for a trial which has not
yet taken place, and the points of pleading that arise are confined
to issues in mitigation of damages. These issues are pleaded by
defendants who have put in a separate defence of justification in
respect of the matters alleged as libels by the plaintiff. Neces-
sarily, therefore, one must restrict what one says at this stage to
what requires to be said in advance of the trial with regard to the
law bearing upon the disputed pleadings.

The pleading in question is paragraph 5 of the defence, which
has been recited in full in the speech of my noble and learned
friend on the Woolsack. Essentially, that paragraph seeks to do
two things: (a) to rely on the fact that the film which contained
the alleged libels depicted the plaintiff as having been responsible
for or associated with other actions of a shameful nature which
he had not complained of in his statement of claim and which,
they pleaded, he did not therefore deny; (b) to assert with regard
to the character of the plaintiff that he was both widely reputed
to have been, and in fact was guilty of the matters complained
of in the statement of claim, and these other matters, and also
certain additional activities discreditable to him.

A.C. AND PRIVY COUNCIL.

That part of paragraph 5 which is summarised under (A) above
has been struck out by the orders in the courts below. In my
opinion, these orders should stand. I do not think that what is
there alleged is a matter of pleading at all, where mitigation of
damages is in question, and I know of no rule of court which can
be vouched as requiring it. If it is said that other parts of the
entire film constitute '' circumstances in which the alleged libel
"" was published "' (in themselves a recognised head of mitigation),
I think that that is a highly artificial meaning to attribute to the
phrase. The real purport of this portion of paragraph 5 of the
defence seems to be to make the point that the plaintiff must be
taken to have admitted the truth of such accompanying deroga-
tory statements as he has not challenged in his libel claim. That
is not a matter for pleading. If it amounts to anything at all, it
is a matter for comment. As a proposition of law designed to set
up some sort of estoppel, I think that it has no foundation. Asa
comment, if it is permissible to make the comment at any stage
of the hearing, that must be at the trial and not before. I
agree, therefore, that paragraph 5 (A) of the defence should
remain expunged from the pleadings.

It was argued that the allowance or rejection of this pleading
involved a decision of law as to whether at the trial the defen-
dants would be entitled to require that the entire film should be
shown to the jury, and not merely those portions that made up
the sound track and pictures conveying the libels complained of.
In my opinion, this point, which is not one of pleading, is not
involved in our decision today. It can only be dealt with as part
of the conduct of the trial. Certainly I do not regard the elimina-
tion of paragraph 5 (A) as affecting one way or the other the
general rule recognised in Cooke v. Hughes * as to a defendant's
right to have the whole of a publication placed before the jury;
but that principle leaves open the question what in any particular
case constitutes the publication or article in which the libel is
contained.

Paragraph 5 (B) raises more than one question, but the main
one, which seems to be the core of this appeal, is whether a defen-
dant may offer in mitigation of damages evidence which bears
upon the disposition of the plaintiff as distinct from his reputation
or only such evidence as bears upon his reputation. On this main
point I am clearly of opinion that in law he has normally been,
and ought to be, confined to the latter branch of evidence.

12 (1824) Ry. & M. 112.

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HOUSE OF LORDS [1961]

I think that the law on all this question of mitigation of
damages by proving bad character or reputation depends upon
two points of principle and, surrounding them, a number of rules
which are primarily rules of practice or convenience designed for
such purposes as to contain the length of trials within manageable
limits, to prevent the jury being avoidably confused as to the
bearing of evidence on different issues, and to limit the grosser
abuses of too great a liberty of reference given to either plaintiff
or defendant. No one can regard these rules as constituting an
instrument of precision for determining the vague concepts which
themselves make up the definition of libel. I will only say that,
in my view, either side may from time to time need protection
from abuse of the permitted liberties: but this is better achieved
by a sense of responsibility on the part of the counsel and by the
judge's handling of the trial itself than by any close restriction
of the range of evidence or cross-examination in matters of
mitigation.

The two matters of principle are these. First, is it to be
permissible to call/evidence of character at all by way of mitiga-
tion? | There is much to be said against allowing it, because, if
it is allowed, there come in all the difficulties of limitation and
possible unfairness of which we have been made conscious by the
arguments in this case. On the other hand, there is, I think,
the preponderating consideration in favour of this head of
evidence that it would be outrageous that a person should recover
damages for injury to a character that he is generally known not
to possess, or, to put it another way, to a reputation that is not
his. In my opinion, therefore, the decision of Scott v. Sampson 38
ought to be treated as settled law on this point, as, indeed, it
has been for more than 80 years. It follows, too, that Jones
v. Stevens,'4 which was a decision that a defendant cannot miti-
gate damages by any evidence of bad character whatsoever, is not
good law and represents a wrong line of reasoning.

The second matter of principle turns on this point to which I
have alluded, whether evidence of a plaintiff's bad character is
to be understood as meaning the character which he bears in
public estimation, by which I mean his reputation, or the
character which might be attributed to him on a nice assessment
of all his actions, if not his thoughts and desires, by which I mean
his disposition. In my opinion, character in this context ought to
mean the former conception exclusively. No evidence should

188 Q.B.D. 491, 498, 508. 1411 Price 235.

A.C. AND PRIVY COUNCIL.

be admitted which is not directed to that head of proof. It is
quite true that in many of the earlier cases disposition, character
and reputation are spoken of without any clear distinction
between the different ideas which they convey; it is true, too,
that on several occasions judges and text writers have spoken of
the character which a man '' ought to have '' as being the rele-
vant matter of proof; but I think that the essential contrast
between reputation and disposition was explained clearly enough
in the judgment of Cave J. in Scott v. Sampson,'® and was
reaffirmed in the judgment of Scrutton L.J. in Hobbs v. Tinling.1®
In my opinion, this is the right line of distinction. I do not
believe that '' the character that a man ought to have '' or to enjoy
has any intelligible meaning. It is not possible for a jury, learn-
ing, perhaps long after the event, of this or that discreditable
action in a man's life, to remake the current public estimation of
him by some ideal piece of analysis. The materials themselves
could not be available. Moreover, any rule that made it possible
for a defendant to put in evidence by way of mitigation some
discreditable action of the plaintiff, irrespective of whether it was
publicly known or not and so contributed to his reputation, would
be a rule so inherently unfair that it ought not to be accepted.

These two principles commend themselves, I believe, to all your
Lordships. But it does not seem to me at all clear that by
settling them one has done enough to establish a workable rule
governing the limits of evidence that can be called on the issue of
reputation. This is not a question upon which I myself can find
any certain guide in the numerous decisions prior to Scott v.
Sampson.17 Most of them were given at nisi prius, few are
reasoned, they are in some cases inextricably associated with rules
of pleading that no longer obtain; and, in fact, you could find
among these decisions authority for almost any of a number of
conflicting propositions. I am content to start with Scott v.
Sampson,\* which certainly reviewed and less certainly reconciled
the previous decisions.

In Scott v. Sampson?" Cave J. identified three classes of
evidence more or less bearing on proof of reputation. The first he
described as general '' evidence of reputation '' or bad character:
''the estimation in which he stands in the opinion of others.'
This was admissible. He rejected the second class, '* evidence of
''rumours and suspicions to the same effect as the defamatory

,

15 8 Q.B.D. 491. 178 Q.B.D. 491.
16 [1929] 2 K.B. 1.

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''matter complained of.'' The third class was also rejected,
'* evidence of particular facts tending to show the character and
'« disposition of the plaintiff.'' Hobbs v. Tinling }* does nothing
to extend or limit this classification, which it purports to follow,
although Scrutton L.J. does not lighten the difficulties of main-
taining the distinctions by treating '' general evidence of bad
' character '' as a term interchangeable with evidence of '" general
"bad character '' or reputation.

I think that one can safely get rid of the second class. If a
man cannot justify the libel he has actually published, it would
be too confusing to the jury to allow him nevertheless to put in
evidence on the mitigation issue evidence of rumours or suspicions
to the same effect, the more so as the two issues, justification
and mitigation, are often not tried in successive stages. Such
evidence is a poor sort of evidence at best: and, although it is
not irrelevant on the question of a defendant's express malice in
issuing the libel and, originally, was probably admitted on this
basis, I think that the better rule of practice is not to allow it
at all: see Watt v. Watt.1® A jury will have a difficult enough
time in learning to distinguish between the loss of credit which
may result from a cross-examination of a plaintiff imputing to
him a number of specific incidents bearing on his uprightness and
probity and the retention of the same plaintiff's reputation if the
same incidents are not or are not allowed to be proved in evidence
by way of mitigation of damages.

I cannot see, however, how it can prove possible to treat the
first and third classes as altogether exclusive of each other and
I do not believe that in practice anyone ever does. The difficulty
is that '' general evidence of reputation '' does not convey an
idea of any content. Life not being a morality play or a Victorian
melodrama, men do not enjoy reputations for being bad or good
simpliciter: nor if they did, would the proof of such generalities
throw any light upon the loss of reputation suffered from a parti-
cular libel. So far as the ordinary man enjoys a public reputation
at all, it is a reputation, favourable or unfavourable, in respect of
particular aspects or sectors of his life, and, of course, he is likely
to have a good reputation in some aspects and a bad reputation
in others. In any event, the existence of these reputations will,
if tested, be found to rest on nothing more than particular

131 (1929) 2) Kibaege 19 [1905] A.C. 115; 21 T.L.R. 386,
H.L.

A.C. AND PRIVY COUNCIL.

incidents of some general notoriety or else on rumour or suspicion,
which may or may not be well founded.

What, then, do we mean when we say that we affirm the
principle of Scott v. Sampson?® that general evidence of bad
reputation is admissible but that evidence of particular facts
tending to show the character and disposition of the plaintiff is
not? I have not been able to find that the authorities supply
any satisfactory answer to this. To begin with, there is a fallacy
in supposing that some general phrase can govern the variety of
situations that a libel can create, in particular in supposing that
the admissible evidence ought to be the same, whether the libel
is very particular or very general or whether the plaintiff is a
public figure, whose reputation is largely based on notorious inci-
dents, favourable or unfavourable, or a private individual whose
affairs may well escape the burden of notoriety altogether. These
considerations lead me to the opinion that it would be wrong to
hold that general evidence of reputation, which must mean repu-
tation in that sector of a plaintiff's life that has relevance to the
libel complained of, cannot include evidence citing particular
incidents, if they are of suffieient notoriety to be likely to con-

tribute to his current reputation. Such incidents are, after all,

the basic material upon which the reputation rests, and I cannot
see the advantage to anyone of excluding the better form of
evidence in favour of the worse. It remains true that the issue
is not whether the incidents actually happened but whether it is
common report that they did. If it is, that seems to me the best
available evidence of a plaintiff's reputation. I find it difficult to
combine an aversion from rumour with an indulgence for general
evidence of reputation which, unvouched, is virtually the same
thing.

We seem to have reached a situation in which, while it is
regularly said that only general evidence of reputation can be
given, and that evidence of particular facts cannot, yet in prac-
tice, when before trial there are furnished particulars of evidence
of character intended to be called in mitigation, the particulars
just as regularly refer to specific incidents. This seems to me
very unsatisfactory, because it makes the worst of both worlds.
I have no liking for the rule which admits evidence of reputation
at all; I regard it as a disagreeable necessity to take care of
certain libel cases which require such a rule; but if we are to
have it, I think that there is everything to be said for trying to

20 8 Q.B.D. 491.

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express it in the fairest and most workable form. I doubt if that
is what we achieve today.

It must be remembered that Cave J. in his judgment confined
his exclusion of particular facts to those '' tending to show the
'' character and disposition of the plaintiff,' that is, those which
go to disposition as contrasted with reputation. As I have said, I
am sure that this principle ought to be maintained. But I think
that it goes beyond either what he said or what he would seem
to have wished to imply to treat general evidence of reputation
as excluding all reference to particular facts, if they are of
notoriety. If evidence were to be admitted but confined in this
way and fair warning were given in advance of any particular
incidents to be raised, as is now done, it would not be realistic
to apply to it the description which in Jones v. Stevens? was
thought to render inadmissible evidence of character, that it
would '' allow defendants to impeach all that transactions of
'"a man's life. . . and throw on him the difficulty of showing an
'' uniform propriety of conduct during all his existence.''

If I apply what I have said to paragraph 5 (B) of the defence
and compare it with the truncated form allowed by the order of
the Court of Appeal, the plea that the plaintiff "'in fact was "'
guilty of the conduct alleged would go out, since it is the repute,
not the fact, that matters; and the references to paragraphs 3
and 4 in sub-head (i) would also go out, since those paragraphs
are justification paragraphs which cannot be repeated as mere
repute by way of mitigation. For the rest, I think that it would
have been better to allow paragraph 5 (B) to stand as pleaded,
subject to its reference to paragraph 5 (A), which will have dis-
appeared, being rewritten. All that remains would be governed
by the opening words "' the. plaintiff is widely reputed to have
'""been,'' which seem to me to apply the right limitation in law.
I do not know that the Court of Appeal's more restricted version
of the pleading would make substantial difference to whatever
may happen at the trial: but it does not seem to me any fairer
to the plaintiff than to the defendants to face him with so vast
and vague a denunciation as that he is reputed to have been party
to or responsible for acts which were war crimes or crimes against
humanity or atrocities.

Subject to this, I would dismiss the appeal.

21 11 Price 235, 265.

A.C. AND PRIVY COUNCIL.

Lorp Denninc. My Lords, the appellants here challenge the
correctness of the judgment of Cave J. in Scott v. Sampson.??
This is a bold thing to do, seeing that it has been accepted for
so long as good law. "But, as the challenge was supported by a
considerable show of authority, I would like to meet it on its
own ground. The law on the subject cannot properly be under-
stood without some knowledge of the old forms of action. From
the earliest writ in 1536 in the Year Books ?* down to the year
1852 the declaration contained three parts: First, The prefatory
averment in which the plaintiff asserted that he was a man
of good character. It usually said that he was a man of good
character and reputation and had never before been suspected of
misconduct of the kind which was imputed to him. Second:
The wrong done. The plaintiff here alleged that the defendant
had falsely and maliciously published of him the words following
(here they were set out) imputing to him misconduct. Third:
The conclusion. In this the plaintiff stated-that by reason of
the foregoing he had been injured in his character and reputation
and claimed damages.

The defendant could not and did not plead to damages. He
could only dispute them under the general issue, that is, not
guilty. And this gave rise to several important questions. The
first was whether, under the general issue, the defendant could
give in evidence the truth of the words in mitigation of damages,
even though he had not pleaded a justification. In 1701 Sir
John Holt C.J. ruled that he could: see Smithies v. Harrison.*4
But in 1737 there was a celebrated case where the beer butler of
Christchurch in Oxford brought an action because it was said of
him: '' John Smith is a rogue and has stolen my beer.'' All the
twelve judges met to consider it and it was held by eight to four
that, as the words imputed a felony, the defendant could not give
evidence of truth in mitigation of damages but had to plead it
specially by a plea of justification: see Smith v. Richardson.?>
And in 1750 this ruling was '' extended to all sort of words, and
'" not barely to such as imported a charge of felony '': see Under-
wood v. Parks.?® | The reason given for requiring it to be pleaded

was so that the plaintiff might be prepared to defend himself.
From Underwood v. Parks **® it followed inexorably that any

evidence of particular facts which tended to prove a justification

22 8 Q.B.D. 491. 24 (1701) 1 Lid.Raym. 727.
23 Y.B. Easter, 27 Hen. 8, f. 11, 25 (1787) Willes 20.
pl. 27 (see Fifoot's History and 26 (17438) 2 Stra. 1200.
Sources of the Common Law, p. 141).

A.C. 1961. 74

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HOUSE OF LORDS [1961]

was not admissible in mitigation of damages but only in support
of a plea of justification, if made: see Starkie on Slander and
Libel, 2nd ed. (1830), vol. II, pp. 90-95.

The second question which arose for decision was whether,
under the general issue, the defendant could give in evidence the
bad character of the plaintiff. In 1809 Sir James Mansfield C.J.
held that it was open to the defendant (in answer to the prefatory
averment of the plaintiff) to call general evidence to prove that
the plaintiff was a man of bad character and had, previously to
the slander, been generally reputed to be guilty of misconduct
of the kind imputed to him (see Harl of Leicester v. Walter'),
and his decision was thereafter upheld by the full Court of
King's Bench in Anon. v. Moor?® and followed thenceforward
by many other judges: see Thompson v. Nye," by Erle J. But

the judges did not allow the defendant to go into particular

instances of misconduct, as distinct from general evidence : \see
Smithies v. Harrison,®® by Holt C.J.; Waithman v. Weaver,*!
by Abbott C.J. The reason for the distinction was well put by
Mr. Starkie: '' The principle on which such general evidence is
'"admitted, whilst evidence of particular facts is excluded, has
''been frequently recognised: it is this—that the party may be
'" prepared with general evidence in support of character, though
'""he cannot be supposed to be prepared with evidence to justify
'"his conduct through life '': Starkie on Slander and Libel, 2nd
ed., vol. II, at p. 98 in notis.

It is only right to say, however, that the Barons of the
Exchequer took a different view. They did not admit even
general evidence of bad character: see Jones v. Stevens.s? But
the judges of the King's Bench took no notice of what the Barons
said. They continued to go the circuits of England and admitted
general evidence of bad character just as they had done before.
Mr. Starkie tells us that such good judges as Holroyd J., Lord
Tenterden C.J., Lord Denman C.J. and Coltman J. all received
general evidence of bad character despite the ruling of the
Barons: see Starkie on Evidence, 3rd ed., vol. II, pp. 641-642.
But they did not allow the defendant to go into particular
instances of misconduct: see Moore v. Oastler,** by Lord

27 (1809) 2 Camp. 251. 31 (1822) Dow. & Ry.N.P. 10.
28 (1818) 1 M. & S. 284. 32 11 Price 285.
29 (1850) 16 Q.B. 175, 180. 83 (1836) Starkie on Evidence, 8rd

30 1 Ld.Raym. 727. eds, vol. Il, p. 642, n.. (e).

A.C. AND PRIVY COUNCIL. 1135

Denman C.J., after consulting Parke B., and Bracegirdle v. H. L. (B.)
Bailey,** by Byles J., after consulting Willes J.

1961
There was once a suggestion that where the defendant pleaded Pere Hoes
. . . . hd T
a justification he could not give general evidence of bad character: Lp.
see Snowdon v. Smith,** in notis by Chambre J. The reason is Geen

not far to seek. Suppose a man accused another of theft and
sought to justify it. If he had to make good this charge with the "4 Dennins-
same strictness as in a' criminal court, he would not be allowed

to bring in evidence of bad character to support it. Could he be

allowed to get it in by a side-wind in mitigation of damages?

The judges eventually held that he could. In Kirkman v.

Oxley ** Heath J. allowed a defendant, who had justified a charge

of theft, to go into evidence of the plaintiff's bad character in

mitigation of damages: see Starkie on Evidence, vol. II, p. 306;

and in 1826 Lord Tenterden did the same: see Mawby v.

Barber.*' On principle this is sound. The object of '' general

'"" evidence of character,'' as Mr. Starkie says, ''is to diminish

''the damages: and this the defendant is entitled to do, though

""he fail to establish his justification '': see Starkie on Slander

and Libel, 2nd ed., vol. II, p. 97.

Such was the law as it stood in 1873. In that year the old
system of pleading was replaced by the modern system of plead-
ing: see section 69 of the Supreme Court of Judicature Act,
1878, and the Rules of Court, 1875. Each party was by Order 19
r. 4, required to plead all the material facts on which he relied:
but by Order 21, r. 4, no denial or defence was necessary as to
damages claimed or their amount, but they were deemed to be
put in issue in all cases. These Rules did not affect the law as
to the admissibility of evidence. But the new Rules did—and
do—make it necessary for the defendant to plead the material
facts on which he relies: and these facts include the plaintiff's
bad character if and in so far as he relies on it. In this respect
I agree with what was said in Scott v. Sampson ** and the Court
of Appeal in the present case. Wood v. Earl of Durham * is
not good law.

This brings me to the case in 1882 of Scott v. Sampson *°
itself, the first decision after the new rules of pleading. Scott
was a dramatic critic for the '' Daily Telegraph.'' Sampson ran

34 (1859) 1 F. & F. 236, 237. 38 8 Q.B.D. 491, 495-496, 507.
35 (1811) 1 M. & S. 286n. 39 (1888) 21 Q.B.D. 501; 4 T.L.R.
36 Starkie on Evidence, 8rd ed., 778, D.C.

vol. II, p. 806, n. (k). 40 8 Q.B.D. 491.

37 (1826) ibid. 642n.

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?

a weekly paper called '' The Referee.'' Sampson wrote an article
in ''The Referee' to this effect: '' Scott has systematically
''abused his position as a dramatic critic so as to extort money.
'' He even threatened Admiral Glyn. He said he would publish
'"some unpleasant facts about Miss Neilson unless he were paid
'* £500: and Admiral Glyn paid him £500 to keep it out.'' Scott
sued for libel. Sampson pleaded justification and failed. The
jury found for Scott with £1,500 damages. But in the course
of the trial Lord Coleridge C.J. rejected certain evidence which
Sampson sought to adduce: and Sampson appealed on the ground
that it ought to have been admitted.

Most of the rejected evidence related to particular instances
of misconduct. For instance, Sampson sought to give evidence
that Scott had, when reviewing '' Othello' in the "* Daily Tele-
'"' oraph,'' grossly abused the actor who took the part of Iago
because he disliked him personally. This evidence was clearly
inadmissible. Such evidence of particular misconduct has never
been allowed in any of the cases save one—Knobell v. Fuller,*!
where Hyre C.J. held that a defendant might, in mitigation of
damages, give evidence of suspicion tending to justification but
falling short of it. That case was so severely handled by Mr.
Starkie that no one has taken any notice of it since: see Starkie
on Slander and Libel, 2nd ed., vol. II, pp. 98-97. It was clearly
wrong.

The rest of the rejected evidence related to rumours to the
same effect as the libel. Sampson sought to call a witness to
say that, before the article appeared in '' The Referee,'' he had
heard the same story in a London club. It seems perfectly
obvious to us today that such evidence was not admissible. But
at that time there was a considerable body of authority in support
of it. Rumours were admissible, it was said, to the same effect
as the libel so long as they were in existence previously to the
publication. The point had been left open in Thompson v. Nye 4?
in 1850, and there had been a division of opinion on it in Ireland
in 1860 in Bell v. Parke.** I need add nothing to the forceful
remarks made by Cave J. in rejecting it. Was the court to receive
the gossip of some idler in a club? Rumour is a lying jade, begot-
ten by gossip out of hearsay, and is not fit to be admitted to
audience in a court of law.

Nothing in that decision touches the admissibility of general

41 (1797) Peake Add.C. 189. 43 (1860) 11 Ir.C.L.R. 413.
42 16 Q.B. 175,

A.C. AND PRIVY COUNCIL.

evidence of bad character. No such evidence was submitted.
But Cave J. made it quite clear that in his opinion it would have
been admissible. He summarised the former practice succinctly
when he said that '' general evidence of bad character was allowed
'to be given under a plea of not guilty '': see p. 5038. And I have
no doubt he was correct. But you must remember that, up to his
day, the decisions were conflicting. The King's Bench judges
had decided in favour of its admissibility, the Barons of the
Exchequer against it. Cave J. came down on the side of
the King's Bench judges. But it would appear that Hawkins J.
from what he said later in Wood v. Earl of Durham 4* would
have come down in favour of the Barons. The Divisional Court
in Scott v. Sampson ** did not overrule Jones v. Stevens 4*: but
your Lordships can, and I hope you will; and will hold that
general evidence of bad character is admissible. The reasons in
favour of it were given by Mr. Starkie (Starkie on Slander and
Libel, 2nd ed., vol. II, p. 88) 130 years ago in a passage, part of
which was quoted by Cave J.47: '' General evidence . . . seems
""in principle to be admissible, as immediately and necessarily
"" connected with the question of damages. He complains of loss
"of reputation, and that he has been deprived of his character
""by the act of the defendant. Is not the defendant, then, to be
"" permitted to show that the plaintiff's character was previously
"tainted . . . or that he had in fact little character or reputation
'""to lose? To deny this, would be to decide that a man of the
""worst character was entitled to the same measure of
'"" damages with one of unsullied and unblemished reputation. A
''reputed thief would be placed on the same footing with the
'"most honourable merchant, a virtuous woman with the most
'* abandoned prostitute. To enable the jury to estimate the prob-
'"able quantum of injury sustained a knowledge of the party's
'' previous character is not only material but seems to be
'' absolutely essential.''

My Lords, up till this point I have spoken of " general
'' evidence of character'' because that is how it was usually
referred to before Scott v. Sampson.*® But Cave J. seems to

oe

prefer the expression '' general evidence of reputation.'' The
reason is, no doubt, because the words '' character '' and "' reputa-

'' tion '' have various meanings and he wished to make clear what

44 921 Q.B.D. 501, 508. 47 8 Q.B.D. 491, 503.
45 8 Q.B.D. 491. 48 8 Q.B.D. 491.
46 11 Price 2385.

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he meant. A man's ' A

'character,'' it is sometimes said, is what

he in fact is, whereas his '' reputation'' is what other people

think he is. If this be the sense in which you are using the words,

then a libel action is concerned only with a man's reputation, that
is, with what people think of him: and it is for damage to his
reputation, that is, to his esteem in the eyes of others, that he
can sue, and not for damage to his own personality or disposition.
That is why Cave J. spoke of ''reputation'' rather than
'* character."'

The truth is that the word '' character ''' is often used, and
quite properly used, in the same sense as the word " reputa-
'"'tion.'' Thus, when I say of a man that "' He has always
'"borne a good character,'? I mean that he has always been
thought well of by others: and when I want to know what his
'* character '' is, I write, not to him, but to others who know
something about him. In short, his '' character '' is the esteem
in which he is held by others who know him and are in a position
to judge his worth. A man can sue for damage to his character
in this sense, even though he is little known to the outside
world. If it were said of Robinson Crusoe that he murdered Man
Friday, he would have a cause of action, even though no one had
ever heard of him before. But a man's " character,'' so under-
stood, may become known to others beyond his immediate
circle. In so far as the estimate spreads outwards from those
who know him and circulates among people generally in an
increasing range, it becomes his '' reputation,'' which is entitled
to the protection of the law just as much as his character. But
here I speak only of a reputation which is built upon the estimate
of those who know him. No other reputation is of any worth.
The law can take no notice of a reputation which has no founda-
tion except the gossip and rumour of busybodies who do not know
the man. Test it this way. Suppose an honourable man becomes
the victim of groundless rumour. He should be entitled to
damages without having this wounding gossip dragged up against
him. He can call people who know him to give evidence of his
good character. On the other hand, suppose a "' notorious rogue "'
manages to conceal his dishonesty from the world at large. He
should not be entitled to damages on the basis that he is a man
of unblemished reputation. There must, one would think, be
people who know him and can come and speak to his bad
character.

This leads me to the conclusion that, in order to arrive at a

A.C. AND PRIVY COUNCIL.

man's character and reputation, you should call those who know
him and have had dealings with him: for they provide the only
sound foundation on which to build. And in actual practice it is
only such persons who are called. I have looked into many of
the cases where evidence of good or bad character has been given,
and I have been engaged in quite a number myself. It usually
takes this form:

(1) If it is evidence of good character, a witness of good
standing is called, such as a clergyman, a schoolmaster or an
employer, and is asked such questions as these: '' What are
"you? How long have you known him? Have you known him
'well? Have you had an opportunity of observing his conduct?
'" What character has he borne during that time for honesty,
'' morality or loyalty? '' (according to the nature of the case). '' As
'far as you know, has he deserved that character? ''' A good
instance is King v. Waring.*® A servant girl was given a refer-
ence accusing her of dishonesty. In support of her claim for
damages, Lord Alvanley C.J. allowed a former employee to come
and give evidence of her general character for honesty. But the
witness cannot be asked questions in examination-in-chief about
particular facts so as to illustrate the plaintiff's good behaviour
on particular occasions. In cross-examination, however, he may
be asked what are the grounds of his belief, and he may be asked
as to particular facts known to him tending to shake it.

(2) If it is evidence of bad character which is given (such as
that a man is a reputed thief or a woman is a common prostitute),
the evidence often takes the form of a police officer who knows him
being called and saying: "' I know the defendant and have known
'' him (or her) for some time. He is a well known pickpocket,"' or
'* She is a common prostitute,'' or as the case may be. In such
cases the witness usually speaks from his own observation and
knowledge. The greater his personal knowledge, the more valuable
his evidence. A good illustration is Wood v. Cox.°° There a jockey
had been accused of " pulling '' a horse called Success. It was
said that '' he nearly pulled his head off.'' He sued for damages.
Lord Coleridge C.J. admitted evidence of four officials of the
Jockey Club who gave evidence of the plaintiff's bad character
for foul riding and not trying to win. (Incidentally, his employer,
the Duke of Portland, gave evidence in the jockey's favour,
though he seems to have been cross-examined to some effect.)

'

49 (1803) 5 Esp. 13. 50 (1888) 4 T.L.R. 652, 656; (1889)
5 T.L.R. 272, C.A.

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The jockey got only one farthing damages. When general evidence

"of bad character is given, the witness cannot in chief give

particular instances: though he can, of course, in cross-examina-
tion be asked the grounds of his belief and on what it is based.

When evidence of good or bad character is given, it should be
directed to that sector of a man's character which is relevant.
Thus, if the libel imputes theft, the relevant sector is his charac-
ter for honesty, not his character as a motorist. And so forth.
It is for the judge to rule what is the relevant sector.

In the year following Scott v. Sampson,*! Order 36, r. 387,
was made. It is confined to cases where justification is not
pleaded. This looks as if someone thought that the evidence
receivable in mitigation of damages was different according as
justification was pleaded or not: just as Chambre J. did in 1811.
But this is not true. There is no difference in principle between
the two cases. I prefer, however, to think that the makers of
the rule thought that, when justification was pleaded, as it was
in Scott v. Sampson,*} that case made it clear that, if the defen-
dant intended to give evidence in mitigation of damages, he had
to include the material facts in his defence. See what Mathew
J. said *? and Cave J.°* Then in order to cover cases where
justification was not pleaded, Order 36, r. 37, was passed so as
to require the defendant to give particulars. The rule did not
enlarge the matters of which he could give evidence. So far as
evidence of '' character '' was concerned, the defendant could still
only give in chief general evidence of bad character and not
particular instances: see Mangena v. Wright **; but henceforward
he had to give notice to the plaintiff of his intention in that behalf
at least seven days before the trial. These particulars may or
may not be included in the pleadings. But in either case the
court has, I think, power to strike them out if, and in so far as,
they consider specific instances which would be likely to embarrass
the fair trial of the action.

This brings me, however, to Scaife v. Kemp & Co.°5. Kemp
& Co. were a trade protection society. They received an inquiry
about the plaintiff, one J. Scaife of Liverpool. They mistook him
for another man of the same name, J. Scaife of Liverpool, and
they answered: '' He is a bad payer, is frequently sued, and
'nothing can be got out of him.'' When the plaintiff sued for
libel, the defendants found out that he, too, was a bad payer.

51 8 Q.B.D. 491. 54 [1909] 2 K.B. 958, 979.
52 Tbid. 494-495, 55 [1892] 2 Q.B. 319;) GY 1.5.@.B.
53 Tbid. 507. OLO:

A.C. AND PRIVY COUNCIL.

Both the Scaifes were apparently bad payers. But instead of
pleading justification, as they should have done, the defendants
furnished particulars under Order 36, r. 37. These particulars
specified certain cheques dishonoured, executions levied, and so
forth. And the defendants followed up these particulars with
interrogatories asking whether certain cheques of the plaintiff at
certain dates had not been dishonoured, whether or not certain
executions had been levied on his goods, and so on. The master
refused these interrogatories. But Denman J. allowed them: and
on appeal Mathew and A. L. Smith JJ. affirmed his decision. It
seems to me that both the particulars and the interrogatories were
an attempt to get in evidence of particular facts which, if proved,
would constitute a justification: and as such they were not
admissible in mitigation of damages. In the absence of a plea of
justification, they ought not to have been allowed. Scaife v.
Kemp & Co.** was, I think, a wrong decision.

Finally, in the review of the cases I come to Hobbs v. Tin-
ling.*® It was a distinct affirmation of Scott v. Sampson. Hobbs
had been convicted of conspiracy to blackmail. A newspaper
thereupon accused him of a lot of other offences which it did
not attempt to justify. But, in order to mitigate damages,
it delivered particulars under Order 386, r. 37, giving many
instances of specific misconduct. Scrutton L.J. said that this
was wrong. The only matter which was properly included was
this 57: '' That the plaintiff is a man of worthless reputation and
'"" character, being known to the police, and in the profession of
"'the law as such.'' Then the newspaper, in order to mitigate
damages, cross-examined Hobbs on specific instances of mis-
conduct. This, too, it was held, was wrong. Such instances can-
not be adduced in cross-examination to damages any more than
they can be in chief. The defendants ought to have called the
police officers and lawyers (indicated in their particulars) to prove
he was a rogue.

Notwithstanding this weight of authority, Mr. Gerald Gardiner
argued that in principle specific misconduct should be admitted in
mitigation of damages. He put this instance: suppose a news-
paper said of a man: "' He has been convicted six times for
'' dishonesty,'' but, on being sued, the newspaper finds that he
has in fact only been convicted twice. The newspaper cannot
justify, he said, because it cannot prove the words were true.

55 [1892

] 2 QB. 319 57 Ibid. 11-12.
56 [1929] 2 K.B. 1.

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Nor can it bring forward the two convictions in mitigation of
damages because they are specific misconduct. So the plaintiff
will get damages on the footing that he has never been convicted
at all. If such were the law, I would agree with Mr. Gardiner
that it would be most unjust and ought to be remedied. But it
is not the law. Although the newspaper cannot justify in whole
it can justify in part. It can plead that, in so far as the words
meant that he had been convicted twice, they were true and thus
bring the two convictions before the jury. In Clarkson v. Law-
son ®* Sergeant Wilde put the very case: ''If [the defendant]
'"'had charged the plaintiff with stealing three horses, he might
'' have justified as to one,'' and Park J. said he could. '"' It was
''the common practice,'' said Sir James Scarlett in one of the
cases cited to your Lordships, '' if a defendant could not justify
'' all, to justify a part of the libel, and produce witnesses to prove
''the part justified, as a ground of mitigation and reduction of
''damages '': see Waithman v. Weaver.®® This rule is based on
sound sense. Seeing that the law does not permit a defendant,
in mitigation of damages, to adduce evidence which tends to
justification, it must permit him to adduce the selfsame evidence
when pleaded in partial justification: see Vessey v. Pike ® by
Lord Tenterden C.J. If it were not so, the plaintiff would recover
damages for a character which he did not possess or deserve; and
this the law will not permit.

But then Mr. Gardiner says that there are cases where not
even a partial justification is open to the defendant, because of
the way the plaintiff frames his action. He took this case.
Suppose a newspaper said of a man: '' He has murdered his
'"' father, stolen from his mother and does not go to church on
'"" Sundays,'' and the plaintiff brings a libel action complaining
only of the imputation that he does not go to church. The
defendants, said Mr. Gardiner, cannot justify the major charges
of murder and theft, because the plaintiff has not complained of
them. They cannot give evidence of them in mitigation of
damages because they are only specific instances. What is,
then, the position? It would, says Mr. Gardiner, be most unjust
that the plaintiff should get damages for the minor matter when,
if the jury had had the whole before them, they would have given
him nothing. I agree it would. But the answer is that the defen-
dants, who had produced such a piece of bathos, would be

58 (1880) 6 Bing. 587, 591. 60 (1829) 3 C. & P. 512.
bo Dow ds Ry Nise lOheeliies

A.C. AND PRIVY COUNCIL.

entitled, in the apt words of Lord Coke, to '' have showed all the
"words and the coherence of them,'' see Brittridge's Case *:
and the jury would no doubt only have given one farthing, as they
did in Cooke v. Hughes.*? In those cases the words so '' cohered
'" together '' that it was necessary for the jury to see all the words
in order to make a correct appreciation of their impact. Whether
the present is such a case, the judge will say at the trial. Your
Lordships can hardly do so at this stage, not having seen the film.

Mr. Gardiner referred also to the Report of the Committee
on the Law of Defamation in 1948 (Cmd. 7536): in which it was
suggested that, as a result of Scott v. Sampson,® a libel action
may resolve itself into a tactical battle so as to force the
plaintiff into the witness-box where he can be cross-examined to
credit. I agree that, if this were the result, it would be plainly
undesirable. The only legitimate purpose of cross-examination
to credit is to damage or destroy the plaintiff's credibility: but,
as often as not, the plaintiff will have said nothing to warrant it.
The plaintiff cannot speak as to his own character and reputation
because he does not know what other people think of him, or, at
any rate, he cannot give evidence as to what they think of him.
And if the purpose of the cross-examination is to introduce
illegitimately specific instances of misconduct—which cannot be
legitimately put in evidence—then it should be discouraged. It
is not good for the law that a judge admit a "' roving "' cross-
examination to credit and then go on to tell the jury to ignore it
when they come to assess damages, knowing that it is an impos-
sible thing to ask them to do. Better not to have it introduced
at all. Better to keep to general evidence of bad character which,
when given by people who know the plaintiff and can judge his
worth, is worth more than many instances and does not embar-
rass the trial as they would do.

My Lords, I think I have now dealt with all the points raised
by the appellants, save the seduction cases and the cases in
aggravation of damages, but these are so far removed from the
present case that I will not spend time on them. It remains

?

only to apply the law to the present case. The original particulars
under 5 (A) were misconceived because there is no need for the
defendant to give evidence in chief about the rest of the film.
If it is one single publication, in which it is necessary to see the
whole in order correctly to appreciate the impact of the parts,

61 (1602) 4 Co.Rep. 18b, 19b. 63 § Q.B.D. 491.
62 (1824) Ry. & M. 112.

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the judge will let the jury see the whole and both sides can make

any fair comment on it. The original particulars under 5 (B)

were misconceived in so far as they related to specific instances

of misconduct. The amended particulars, as allowed by the

Court of Appeal, are permissible in so far as they relate to general _

evidence of bad character in a relevant sector.
I would therefore dismiss this appeal.

Lorp Morris or Bortu-y-Grest. My Lords, if a plaintiff
complains that a defendant has published defamatory matter
concerning him the defendant may in civil proceedings absolve
himself from any liability to pay damages by showing that what
was published was no more than the truth. But if a defendant
fails to do that or is not otherwise protected, is he to be entitled
to reduce his liability to pay damages for having published false
defamatory matter by making new and further accusations and
asserting that they reveal the plaintiff in his true light? Is a
defendant in an action for defamation to be allowed for the pur-
pose of reducing his liability in damages to say in effect: '' Though
'"what I have published was false, if I had published what I
""now assert all of that would have been true''? Or is he to
be entitled to say: '' If what is complained of is false, then the
'" damages which I ought to pay should be diminished because I
'""have in fact published other defamatory statements of the
'* plaintiff and I say that those are true ''?

My Lords, though it would seem incongruous if someone with
a bad reputation could claim damages for injury to his reputa-
tion without risk of the fact of his bad reputation being made
known to the court, it would seem objectionable if the measuring
of the damages that should be paid for publishing some false
defamatory matter could be made the occasion for asserting and
investigating other allegations against a plaintiff with a view
to disclosing his true character and disposition. If in a quest
to discover or to assess the true character and disposition of a
plaintiff a defendant could assert and seek to prove certain deeds
which were discreditable to the plaintiff, the latter could hardly
be denied the right to counter-balance them by asserting and
seeking to prove deeds which redounded to his credit. The limits
of roving inquiry would be hard to control. There would be
trials within a trial. The last stage of a trial would be far
removed from the first. While in some cases any unseemly use
of opportunity to expose a plaintiff might dangerously react, there

A.C. AND PRIVY COUNCIL.

might be cases in which the possession of some piece of informa-
tion as to the past could in callous and unscrupulous hands be
the means of deflecting a plaintiff from pursuing a just claim.
It is the contention of the appellants that in an action for
defamation a defendant should be allowed, on giving due notice,
to adduce evidence in mitigation of damages not only of the
circumstances under which the matter complained of was pub-
lished but also of the true character and disposition (at the
material time) of the plaintiff. This should, however, be limited
(according to the appellants' contention) to what is relevant to
the nature of the allegations made against the plaintiff in the
publication complained of though not otherwise limited inasmuch
as all facts intended to be alleged in the damages-mitigating
process ought, it is contended, to be pleaded with particularity.
If the considerations both favourable to and adverse to these
contentions were being judicially examined for the first time, there
would be much to be said for being sparing (when the sole issue is
that of the amount of the damages) in giving protection to those
who give currency to defamatory statements the accuracy of which
they cannot defend. But, my Lords, the vexing issues to which
the appellants' contention gives rise were often before the courts
in the periods before the decision in Scott v. Sampson.* In some
cases a person who was sued sought to defend himself by showing
that he had merely said what was currently and widely being
said about the plaintiff. '' If so many are saying this, what injury
""has my mere repetition done? '': such was one form of the
plea. My Lords, had such a plea found any lasting favour, the
ugly voices of rumour and gossip with their furtive breathing of
scandal would have gained a hearing which the law denies to
them. In other cases it was sought (as it is now sought) to give
evidence of particular facts tending to show the character and
disposition of the plaintiff. If that could be done without prior
notice it would be manifestly unfair. A plaintiff might not be
prepared with the material to refute some suggestion which,
had there been knowledge that it would be raised, could con-
vincingly have been refuted. But even after due notice (the
desirability of which the appellants recognise) ought such pro-
cedure to be allowed? A man should have damages, say the
appellants, for injury to such reputation as he deserves to have
and not for injury to a reputation that he does not deserve. The
reason, they say, why justification is recognised as a defence

63 8 Q.B.D. 491.

1145

Be (ES
1961

Piaro Fiitms

Lip.
v.
SPEIDEL.

Lord Morris of
Borth-y-Gest.

1146 HOUSE OF LORDS [1961 }

H. L. (E.) in defamation proceedings is that if truth is shown it is thereby
shown that a plaintiff cannot assert injury to a character which

1961 ;
———— he neither does nor ought to possess. In M'Pherson v. Daniels **
og oe Littledale J. said: ''. . . the truth is an answer to the action,

o. '' not because it negatives the charge of malice . . . but because

SPEIDEL.

''it shows that the plaintiff is not entitled to recover damages.
oe '' For the law will not permit a man to recover damages in respect

os 'of an injury to a character which he either does not, or ought
''not, to possess.'' But, in my judgment, that applies to the
character which a plaintiff ought to possess in relation to the
particular matters which are the subject of the libel complained
of. A true statement made of a plaintiff may damage his reputa-
tion, but so far as civil proceedings are concerned a defendant may
say that inasmuch as the statement was true he is not liable
for having caused the damage.

In his notable judgment in Scott v. Sampson © Cave J. traced
the evolution of certain underlying principles, though he recog-
nised and demonstrated that as to some issues there was a con-
siderable conflict of judicial opinion. '' Speaking generally,'' he
said,®* '"' the law recognises in every man a right to have the
'* estimation in which he stands in the opinion of others unaffected
'by false statements to his discredit; and if such false state-
'"ments are made without lawful excuse, and damage results to
'the person of whom they are made, he has a right of action.
'"The damage, however, which he has sustained must depend
'"almost entirely on the estimation in which he was previously
'""held.'' It was a logical step from this to conclude that those
who have to award damages should be entitled to know, if it
be the fact, that a plaintiff is a man of no reputation and that
general evidence of reputation should be admitted: the balance of
previous authority, the learned judge concluded, supported that
view. One of the further issues in the case related to the admissi-
bility of evidence of particular facts tending to show the character
and disposition of a plaintiff. As to this Cave J. concluded that
both principle and authority were equally against its admissibility :
no case that had been cited to him supported its admissibility.

Although the principles which were classified and stated in
Scott v. Sampson ®" have now stood for nearly 80 years it would
be open to your Lordships, if so persuaded, to hold that the case
was wrongly decided. My Lords, I am not so persuaded. It

64 (1829) 10 B. & ©. 268, 272. - 66 Tbid. 508.
65 8 Q.B.D. 491. 67 8 Q.B.D. 491.

A.C. AND PRIVY COUNCIL.

records and sets out what might be regarded as the greatest
common measure of principle which emerged from the progressive
experience of trial courts over many years. It may neverthe-
less be recognised that criticisms can be directed against the rule
which it affirmed: that general evidence of reputation can be
admitted but not evidence of particular facts tending to show
the character and disposition of a plaintiff. The line, it may be
said, between general evidence of reputation and evidence as to
rumour may often become slender. If there be cross-examina-
tion of a witness who has given general evidence of reputation
then the floodgates may be opened through which streams of
details and particular facts may flow. Furthermore, it may be
said that under existing practice in cases where cross-examination
of a plaintiff as to his credibility is legitimate the range of the
questioning may be wide and the length of a trial correspondingly
extended. Also it may be said that there may in some cases be
difficulties in having available a witness who can speak as to a
man's reputation. If there is force in some or all of these
criticisms it may be that even more forceful criticisms could be
directed against some proposed new rule. These matters, how-
ever, do not so much present themselves as the problems of the
court but rather of any who might wish by legislation to seek to
change the law as it has been evolved.

One of the complications in the present case arises from the
circumstance that the appellants are seeking to assert that the
film not only depicts the respondent as guilty of the particular
conduct of which the respondent complains in the action but that
the film further depicts him as having been guilty of other parti-
cularised conduct and they seek to be entitled in order to mitigate
damages to prove that he was in fact guilty of such other
conduct. For the reasons that I have indicated I do not consider
that they ought to be entitled to do more than to adduce such
evidence as the trial judge admits within the pleading in the
form allowed by the Court of Appeal. I cannot think that the
appellants should be entitled to give evidence of particular facts
tending to show the character and disposition of the respondent
merely because those alleged facts are said to be asserted or
presented in some parts of the film itself. I furthermore cannot
agree that it is legitimate to plead that it was a '"' circumstance "'
under which certain defamatory pictures and words complained
of were published in a film that there were other pictures and
words in the film '' the truth of which the plaintiff in his amended
'statement of claim does not deny."'

1147

a. L. (E.)
1961

Prato Fi~Ms

Lrp.
v.
SPEIDEL.

Lord Morris of
Borth-y-Gest.

1148 | HOUSE OF LORDS [1961]

H. L. (E.) The appellants have submitted that ''the decision of the
'Court of Appeal that the defendants did not have the right to
———— "'require that those parts of the film referred to in paragraph
ne mS "©5 (A) be shown to the jury at the trial of this action was
v. ''wrong.'' My Lords, it seems to me that it will be for the
ee judge at the trial to decide whether the appellants will have the
co, right to insist that the whole of the particular film should be
— seen by the jury. The Court of Appeal recognised that the appel-
lants might wish to make a comment to the jury that the respon-
dent was prepared "' to sit down under'' charges made in the
film and not complained of by the respondent in the action. My
Lords, I do not consider that we are called upon to express
opinion upon any of these matters. It will be for the judge at
the trial to decide whether, either as of the right of one or other
of the parties or otherwise, the jury should see the whole film,
and it will also be for him to decide what evidence is admissible

as being relevant to the issues raised by the pleadings.

I would dismiss the appeal.

1961

Lorp Gurst. My Lords, I have had the opportunity of read-
ing the speech delivered by my noble and learned friend on the
Woolsack and I agree with the reasons which he gives for dis-
missing this appeal. I only desire to add these observations.

It was argued by the appellants that although the decision in
Scott v. Sampson ** was averse to their contention it should not
be followed because it has led to inconvenience and injustice.
I am not satisfied that it has led to these results. In my view,
inconvenience and injustice would certainly follow if the law
were to be as the appellants argued that it ought to be. If allega-
tions of specific instances of misconduct were allowed to be
proved in evidence in mitigation of damages, it would open the
door to issues which were truly collateral and which had but an
indirect bearing on the main question in the case. It would
inevitably prolong the trial and tend to confuse the minds of the
jury by distracting their attention from the main issue. The
result might be that a trial in which the truth or falsity of one
allegation was being investigated might degenerate into trials of
the truth or falsity of a dozen other allegations, whether or not
relevant to the subject-matter of the libel, introduced by the
defendants for the purpose of mitigating damages.

68 8 Q.B.D. 491.

A.C. AND PRIVY COUNCIL.

It is satisfactory that the law of Scotland has been for a
number of years in consonance with the law of England on the
matter (C. v. M.**). The decision in that case derived authority
from an earlier case of A. v. B.7° and I quote the opinion of Lord
President Robertson: '' But, then, courts of law are not bound to
"admit the ascertainment of every disputed fact which may con-
"tribute, however slightly or indirectly, towards the solution of
"the issue to be tried. Regard must be had to the limitations
"which time and human liability to confusion impose upon the
"conduct of all trials. Experience shows that it is better to
'sacrifice the aid which might be got from the more or less
"uncertain solution of collateral issues, than to spend a great
"amount of time, and confuse the jury with what, in the end,
"" even supposing it to be certain, has only an indirect bearing on
""the matter in hand.''

Upon the question of the extent to which the film should be
exhibited to the jury the Court of Appeal have left that matter
to the judge at the trial. The appellants submit that even if
paragraph 5 (B) is to be struck out, they are still entitled to have
paragraph 5 (A) remain as this is the only method of ensuring
that the whole film will be shown to the jury. In my view,
paragraph 5 (A) is objectionable and should be struck out. It
contains the objectionable expression in relation to the allegations
"the truth of which the plaintiff in his amended statement of
""claim does not deny.'' It also contains the defendants' gloss
on the passages of the film referred to. The plaintiff is not, in
my opinion, called upon at this stage to admit or deny this gloss.

The appellants base their argument for the retention of para-
graph 5 (A) upon the decision in Cooke v. Hughes"! where it was
held that the defendant was entitled to have the whole publica-
tion in which the libel was contained read to the jury. The deci-
sion must be read in the light of the facts of that case. I have
no doubt that in some cases it may be necessary in order to
explain the context in which the libel is contained to put the
whole publication before the jury. But this must depend on the
circumstances of each case. In any event, the point taken by

'

"

the appellants relates not to pleading but is a question of evi-
dence. This House is being asked in advance to rule upon a
question of evidence which will arise for the decision of the judge
as a matter of law at the trial. In my view paragraph 5 (A)

69 1923 S.C. 1. 71 Ry. & M. 112.
70 (1895) 22 R. 402, 404.

A.C. 1961. 75

1149

H. L. (E.)
1961

Prato Fits

Lrp.
v.
SPEIDEL.

Lord Guest.

1150 HOUSE OF LORDS [1961 |

H. L. (E.) ghould be struck out for the reason I have given. But this does

1961 not mean that the defendants may not be entitled at the trial to
— have the whole film exhibited to the jury, if they can persuade
Bate ts MS the judge that in order to explain the libel it is necessary to do so.

peony In my opinion the Court of Appeal were right in declining to

make any comment on the question and leaving it to the judge
Lord Guest = at, the trial.
I would dismiss the appeal.

Appeal dismissed.