Riddick v Thames Board Mills Ltd

RIDDICK v. THAMES BOARD MILLS LTD.

[1974 R. No. 122]

1977 Feb. 8, 9, 10; Lord Denning M.R., Stephenson and
March 11 Waller L.JJ.
F
Libel and Slander—Publication of libel—Company's internal memo-
randum—Report to staff manager on dismissed employee—
Disclosure in action against company by ex-employee—Report
used as basis for subsequent libel action—Jury's finding of
malice in report—Whether publication—Whether use in libel
action against public policy
Public Policy—Administration of justice—Discovery—Action for
Q wrongful arrest—Disclosure of internal company report—
Whether use as basis for subsequent libel action valid
In September 1967 the plaintiff began employment as a
shift engineer at the defendant company's Cumberland factory.
After doubts about his ability, he was dismissed on February
28, 1969, for failure to do his job satisfactorily. He was told
that he would be paid two months' salary and then, as if he
xj had been dismissed for gross misconduct, he was escorted by
the chief engineer and personnel manager at the factory to
a waiting car and driven, seated between them, by a security
officer to where his own car was parked. The plaintiff and
his solicitor complained of his dismissal, the manner of it

Riddick v. Thames Board Mills (C.A.) [1977J.
and its effect upon him, to the company. In consequence,
R, the chief personnel manager at the company's head office A
in Essex, asked a colleague, F, to ascertain the facts about
the dismissal. In a memorandum of April 16, 1969, made
after speaking by telephone to the chief engineer and per-
sonnel manager at the factory, F reported what they had
told him to R. The memorandum referred to the plaintiff not
having been up to the demands of his job, to his known
instability and to his being highly strung and unsure of him-
self. F dictated the memorandum to his secretary who typed B
it and handed it to R. R read it and filed it.
By writ of October 3, 1969, the plaintiff claimed damages
against the company for wrongful arrest and false imprison-
ment. On discovery in the course of the action, the company
disclosed the memorandum of April 16, 1969. The action was
settled in January 1971 on terms endorsed on counsel's briefs
including the payment of £251 to the plaintiff's solicitors and
the withdrawal of the allegations of wrongful arrest and false C
imprisonment.
In February 1972 the plaintiff claimed damages against the
company for defamation " flowing from the wrongful manner "
of his dismissal, but that action was struck out as being a
further claim for damages in respect of the same matters
as in the action which had been settled: however, during the
hearing in the Court of Appeal of an appeal against the order
striking out the action, it was said that the plaintiff should not D
be prevented, if he was so advised, from bringing a fresh
action based, inter alia, on the memorandum of April 16,
1969.
By writ of December 19, 1974, the plaintiff, who had been
unable to obtain work after his dismissal, claimed damages
for defamation based on the memorandum of April 16, 1969.
At the trial no evidence was given that the memorandum had
been read by anyone other than F, R and the secretary who E
typed it. The judge told the jury not to have regard to the
plaintiff's continued unemployment but ended his summing-up
by telling them that although the plaintiff had made many
applications he had failed to get a job.
The jury found that the words in the memorandum of
April 16 were defamatory of the plaintiff, that he had proved
malice and they awarded him £15,000 damages. Judgment
was entered for the plaintiff for that sum. F
On appeal by the company: —
Held, allowing the appeal, that a party who disclosed a
document on discovery was entitled to the protection of the
court against any use of it otherwise than in the action in
which it was disclosed, and, since the memorandum of April
16 had been disclosed by the company in the first action
which had been settled, in the interests of public policy and _
justice to the company the plaintiff was not entitled to use ^*
it as the basis for the subsequent defamation action, and
accordingly the action failed (post, pp. 896c-D, 897A, 901H—
902A, F-G, 912C-D).
Dicta of Jenkins J. in Alterskye v. Scott [1948] 1 All E.R.
469, 471 and Distillers Co. (Biochemicals) Ltd. v. Times News-
papers Ltd. [1975] Q.B. 613 applied.
Per curiam. The judge misdirected the jury on the rele- u
vance of the plaintiff's failure to get jobs after his dismissal
and, had it been necessary, there would have had to be a
retrial on the issue of damages (post, pp. 892D, 897E-F,
906F).

883
1 Q.B. Riddick v. Thames Board Mills (C.A.)
Per Lord Denning M.R. Inter-departmental memoranda
A have a special place in the law of libel; a master should not be
liable for a confidential report made by one of his servants
about another, even though that servant was malicious in
making it (post, pp. 893B-C, G, 894E, 895B-C).
Per Stephenson L.J. It is not open to the Court of Appeal
to adopt the theory that there was no publication because
the company was publishing a libel to itself (post, p. 899F-H).
Where two servants are acting in the course of their employ-
» ment by a company, that company cannot escape respon-
sibility for the malice of one because the other is acting
without malice, and the company could not defeat the plain-
tiff's claim by the plea of qualified privilege (post, p. 901D-E).
Per Waller L.J. F published the memorandum to his
secretary and to R, but in the circumstances that publication
was not infected by the malice (as found by the jury) of the
_ chief engineer and personnel manager of the factory, and,
C accordingly, the plea of qualified privilege succeeded (post,
pp. 907D-E, 910B-C).
Osborn v. Thomas Boulter and Son [1930] 2 K.B. 226,
C.A.; Egger v. Viscount Chelmsford [1965] 1 Q.B. 248, C.A.
and Bryanston Finance Ltd. v. de Vries [1975] Q.B. 703,
C.A. considered.
Judgment of Caulfield J. on verdict of jury reversed.
The following cases are referred to in the judgments:
Alterskye v. Scott [1948] 1 All E.R. 469.
Arvey Corporation v. Peterson (1959) 178 F.Supp. 132.
Bartonshill Coal Co. v. McGuire (1858) 3 Macq. 300.
Boxsiusv. Goblet Freres [1894] 1 Q.B. 842, C.A.
Broadway Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R.
E 805; [1965] 2 All E.R. 523, C.A.
Bryanston Finance Ltd. v. de Vries [1975] Q.B. 703; [1975] 2 W.L.R.
718; [1975] 2 All E.R. 609, C.A.
Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise
Commissioners (No. 2) [1974] A.C. 405; [1973] 3 W.L.R. 268; [1973]
2 All E.R. 1169, H.L.(E.).
D. v. National Society for the Prevention of Cruelty to Children [1976]
F 3 W.L.R. 124; [1976] 2 All E.R. 993, C.A.; [1977] 2 W.L.R. 201;
* [1977] 1 All E.R. 589, H.L.(E.).
Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B.
613; [1974] 3 W.L.R. 728; [1975] 1 All E.R. 41. ,
Edmondson v. Birch & Co. Ltd [1907] 1 K.B. 371, C.A.
Egger v. Viscount Chelmsford [1965] 1 Q.B. 248; [1964] 3 W.L.R.
714; [1964] 3 All E.R. 406, C.A.
Hopkinsonv. Lord Burghley (1867) L.R. 2 ChiApp. 447. <
O Hutchinson v. York, Newcastle and Berwick Railway Co. (1850) 5 Exch.
343.
Imperial Chemical Industries Ltd v. Shatwell [1965] A.C. 656; [1964]
3 W.L.R. 329; [1964] 2 All E.R. 999, H.L.(E.).
Lloyd v. Grace, Smith & Co. [1912] A.C. 716, H.L.(E.).
Middleton v..Fowler (1699) 1 Salk. 282.
Osborn v. Thomas Boulter and Son [1930] 2 K.B. 226, C.A.
H Priestley v. Fowler (1837) 3 M. & W. 1.
Pullman v. Walter Hill & Co. Ltd. [1891] 1 Q.B. 524, C.A.
Reynolds \. Godlee (1858) 4 K. & J. 88. <
Richardson v. Hastings (1844) 7 Beav. 354.

884
Riddick v.Thames Board Mills (C.A.) [1977]
RofJ V. British and French Chemical Manufacturing Co. and Gibson
A
[1918] 2K.B. 677, CA.
Young v. Edward Box and Co. Ltd. [1951] 1 T.L.R. 789, CA.
The following additional cases were cited in argument:
Anderson v. Bank of British Columbia (1876) 2 Ch.D. 644, Jessel M.R.
and C.A.
Ankin v. London and North Eastern Railway Co. [1930] 1 K.B. 527, ~
C.A.
Armstrong v. Strain [1952] 1 K.B. 232; [1952] 1 All E.R. 139, CA.
Brooks v. Prescott [1948] 1 All E.R. 903, CA.
City of Baroda, The (1926) 134 L.T. 576.
Meekins v. Henson [1964] 1 Q.B. 472; [1962] 3 W.L.R. 299; [1962]
1 All E.R. 899.
Norwich Pharmacol Co. v. Customs and Excise Commissioners [1974]
A.C. 133; [1973] 3 W.L.R. 164; [1973] 2 All E.R. 943, H.L.(E.) C
Schneider v. Leigh [1955] 2 Q.B. 195; [1955] 2 W.L.R. 904; [1955]
2 All E.R. 173, CA.
Webb v. East (1880) 5 Ex.D. 108, C.A.
APPEAL from Caulfield J. and jury.
By writ of December 19, 1974, the plaintiff, Robert Riddick, claimed ~
damages for defamation against the defendants, Thames Board Mills
Ltd. By paragraphs 13 and 14 of the statement of claim the plaintiff
alleged that on April 16, 1969, the defendants through their servants
Fleming and Smith communicated by telephone with one F. G. Fathers,
a senior officer employed at the defendants' London headquarters; that
Fleming and Smith asserted that it was necessary carefully to plan the
plaintiffs dismissal from the defendants' Workington factory because it E
was known that the plaintiff was inefficient, mentally unstable and subject
to hysteria; that "infected with the same malice," Fathers prepared and
published a document (dated April 16, 1969) to one D. D. Rixon, a
senior official employed by the defendants, which contained details of
the defamatory matters embodied in the telephone conversation and
readily condoned the action of Fleming and Smith in their treatment of p
the plaintiff. *
By an amended defence of May 3, 1976, the defendants pleaded
(paragraph 4) that it was admitted that Fathers prepared and sent to
Rixon a memorandum dated April 16, 1969, referring to the plaintiffs
dismissal on February 28, 1969, but it was denied that it was defamatory
of the plaintiff, and further (paragraph 5) that the memorandum was sent
by one servant or agent of the defendants to another of their servants G
or agents in the course of their employment and it was denied that there
was any publication. Further or alternatively it was pleaded (paragraph
6) that if the document of April 16 was published, any such publication
was on an occasion of absolute or qualified privilege and (paragraph 7)
that the document had been disclosed to the plaintiff in the course of
proceedings between the parties by writ issued October 3, 1969 (1969 R. u
No. 98), and it was an abuse of the process of the court for the plaintiff
to rely on such a document so obtained.
On May 27, 1976, the jury answered the questions left to them as

885
1 QJJ. Riddick v. Thames Board Mills (C.A.)
follows: (1) Are the words in the memorandum of April 16 defamatory
^ of the plaintiff? Answer—Yes. (2) Has the plaintiff proved malice?
Answer—Yes. (3) What sum do you award by way of damages—answer
£15,000. Judgment was accordingly entered for the plaintiff for £15,000.
The defendants appealed on the grounds, inter alia, that the judge
erred in law (1) in not ruling that the memorandum of April 16, 1969,
was published on an occasion of absolute privilege (a ground not pursued
B in argument); (2) in not ruling that the plaintiffs use of the memorandum
in the action (having been disclosed to him on discovery in a previous
action) was an abuse of the process of the court and use for a collateral
or ulterior purpose which the court would not permit; (3) and (4) in not
ruling that there was not sufficient evidence of malice to go to the jury;
(5), (6) and (7) in his directions to the jury on damages and on the plain-
tiffs unemployment. It was also contended that the damages awaded were
C unreasonable and excessive.
The plaintiff filed a respondent's notice.
The facts are stated in the judgments.
A. T. Hoolahan Q.C. and J. Melville Williams for the defendant com-
pany. Important questions of law as to publication, dictation to a typist
D (see Arvey Corporation v. Peterson (1959) 178 F.Supp. 132, 136 on
"Dictation to a stenographer" and citing the American Restatement,
Torts) and discovery, the use of a document disclosed for a collateral
purpose, arise on the appeal. £15,000 was an enormous sum to award as
damages and there was misdirection. There was clearly privilege for the
report of April 16, 1969: if there was any malice, there was no malice
in the writer of the report. [Reference was made to the pleadings in the
E first action, by writ of October 3, 1969; and to R.S.C., Ord. 24, r. 5 and the
note 24/5/7 in The Supreme Court Practice 1976, vol, 1, pp. 406-407.]
On the issue of "No Publication," see Gatley on Libel and Slander,
6th ed. (1967), p. 113, and the note citing the American cases beginning
" It has . . . been held in America that . . . dictation . . . to a stenographer
. . . does not amount to a publication . . ." which should be compared with
p the note at p. 104 of Gatley, 7th ed. (1974). In Arvey Corporation v.
Peterson, 178 F.Supp. 132, the United States District Court, E.D.
Pennsylvania, adopted the view (p. 136) " that a dictation by an officer of
a corporation to his secretary is a publication."
A business communication to someone outside the company is a
publication on an occasion of qualified privilege: Osborn v. Thomas
Boulter and Son [ 1930] 2 K.B. 226.
G The question is: what is the position of an internal memorandum
which remains within the company?
[LORD DENNING M.R. Every company has to have reports on members
of its staff.]
If a company sends a memorandum to itself there is no publication.
The publication to the typist in Osborn's case was privileged because she
JJ received the communication as typist, i.e., that was her " interest." Does
such an employee receive the communication both as employee and as
individual?
There is an actionable publication if, and only if, a defendant has

886
Riddick v. Thames Board Mills (C.A.) [1977]
made it to a third person; publication to the party libelled is not publica-
tion for the purposes of a civil action: see Gatley on Libel and Slander,
7th ed., p. 103. In the civil law one is looking for actionable publication.
Where the defendant is an individual any publication to a secretary is
publication to a third person; but the position of individuals may be
different from that of companies. The defendants in Osborn v. Thomas
Boulter and Son [1930] 2 K.B. 226 were a firm, probably a partnership
(see p. 234). Neither Osborn's case, nor Bryanston Finance Ltd. V. de B
Vries [1975] Q.B. 703, nor Egger v. Viscount Chelmsford [1965] 1 Q.B.
248, was concerned with a limited company which is a concept and not
an individual. Can it be argued that a company employee is not a third
person vis-a-vis the company? The employee may, of course, have a
double capacity. Conceding that there was publication from Fathers to
Rixon for which the company was vicariously liable there can be no doubt
but that it was on an occasion of qualified privilege because it was made
in the course of the company's business and in its interests: Bryanston
Finance Ltd. v. de Vries [1975] Q.B. 703.
A person who without malice takes part in publishing a defamatory
statement on an occasion of qualified privilege is not a tortfeasor, the
privilege attaches to the individual publisher and not to the publication:
Egger v. Viscount Chelmsford [1965] 1 Q.B. 248. An innocent agent is D
not liable for the fraud or malice of his principal: per Lord Denning M.R.
at p. 262; Armstrong v. Strain [1952] 1 K.B. 232, 244.
Many companies must have adverse reports made on their employees.
If Fathers was innocent of malice, so were the defendants, the company:
see per Sellers L.J. in Broadway Approvals Ltd. v. Odhams Press Ltd.
(No. 2) [1965] 1 W.L.R. 805, 813. The defendant company cannot be E
liable unless Fleming and Smith caused the memorandum to be published.
If the defendant company is to be held liable in damages it can only be on
the basis that Fleming and Smith were parties to the publication of the
memorandum and were malicious. It would be strange if the company
was liable for its internal confidential reports.
[WALLER L.J. Can one attribute malice to the company?] p
A company is an entity but not an individual. In Meekins v. Henson
[1964] 1 Q.B. 472, the defendants were three partners in a firm and
judgment was given against the only defendant who was found to have
been malicious. A company can only be vicariously liable if its servant
maliciously caused the publication.
On the " Discovery " issue, if a document is obtained on discovery, it
must not be used for a collateral purpose: see Richardson v. Hastings G
(1844) 7 Beav. 354, 356; Hopkinson v. Lord Burghley (1867) L.R. 2
Ch.App. 447, 448, 449; Reynolds v. Godlee (1858) 4 K. & J. 88, 91-92.
Documents obtained on an order for discovery should not be communi-
cated to a stranger to the suit or used for any collateral object: Bray on
Discovery, 1st ed. (1885), p. 238. There is an implied obligation not to
make improper use of disclosed documents: Alters/eye v. Scott [1948] 1 JJ
All E.R. 469, per Jenkins J. at p. 470. The general principle of Distillers
Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613,
621C-F, 625c-D covers this case. D. v. National Society for the Preven-

887
1 Q.B. Riddick v. Thames Board Mills (C.A.)
tion of Cruelty to Children [1976] 3 W.L.R. 124 deals with the competing
principle of public interest: see per Lord Denning M.R. at pp. 131-132;
and in the House of Lords [1977] 2 W.L.R. 201. See also per Lord Reid
in Norwich Pharmacol Co. V. Customs and Excise Commissioners [1974]
A.C. 133, 173-174; Schneider v. Leigh [1955] 2 Q.B. 195 (privilege limited
to litigant); and Webb v. East (1880) 5 Ex.D. 108.
The only competing public interest to that of the confidentiality of
B discovery is the right to redress. The balance of interest is all on one side.
The House of Lords in Alfred Crompton Amusement Machines Ltd. V.
Customs and Excise Commissioners (No. 2) [1974] A.C. 405 came down
on the side of privilege. [Reference was made to Meekins v. Henson
[1964] 1 Q.B. 472.] Justice and public interest do not require that the
plaintiff should be allowed to use the material disclosed by the defendants
in the first action in the later action. ,
As to damages, no pecuniary loss was proved. Malice only falls to be
considered on the basis that the plaintiff's feelings were hurt. There,
might have to be a retrial on damages.
The plaintiff in person referred to Anderson v. Bank of British'
Columbia (1876) 2 Ch.D. 644; Ankin V. London and North Eastern
Railway Co. [1930] 1 K.B. 527; The City of Baroda (1926) 134 L.T. 576-
and Halsbury's Laws of England, 4th ed., vol. 13 (1975), para. 78 on
discovery.
The previous proceedings were not adjudicated upon. There was no
withdrawal of the claim for libel. [Reference was made to Brooks v.
Prescott [1948] 1 All E.R. 907, 911 and Schneider v. Leigh [1955] 2.
Q.B. 195.]
E As to the position of privilege for documents in respect of a litigant.
in person, see Halsbury's Laws of England, 4th ed., vol. 13, para. 85.
The defendants are a subsidiary of Unilever and the question of the
harm that may be done to an individual in a big organisation has to be
considered. Vicarious liability affects the position of the big company.
As to publication, see Eraser on Libel and Slander, 7th ed. (1936), pp.
19 24
F ~ -
Hoolahan Q.C. in reply said that there was no evidence that the
memorandum of April 16,1969, had any effect.
Cur. adv. vult.
March 11. The following judgments were read.

G LORD DENNING M.R. It is eight years ago now since Robert Riddick,
the plaintiff, was dismissed from his employment. Yet the manner of it
has reverberated through the Law Courts ever since. He was a shift
engineer in a mill at Workington in Cumberland. It was run by the
defendants, a subsidiary of Unilever, called Thames Board Mills Ltd.
(" the company "). Tree trunks went in at one end of the mill. Card-
JJ board came out at the other end. Mr. Riddick had only been with the
company for about 18 months. Previously, since boyhood, he had been
with the Workington Steel Mills for 28 years. He had work with them
which was within his capacity, but he then became redundant. At the'

888
Lord Denning M.R. Riddick v. Thames Board Mills (C.A.) [1977]
age of 44 he moved to this new job of shift engineer at Thames Board
Mills Ltd. But after 18 months his employers thought that he was not A
up to it. They had nothing against him personally. He was a man of
excellent character, who tried his very best. But they felt that he simply
could not measure up to the responsibilities of a shift engineer. So they
decided to terminate his services with them and give him two months'
salary in lieu of notice. It is the manner of his dismissal which has
caused all the trouble. B
On February 28, 1969, he was sitting in his office at the mill. It was
2 p.m. at the end of his shift when he was not due to come on again for
four days. Two senior officers came in. One was Mr. Fleming, the chief
engineer. The other was Mr. Smith, the personnel manager. They told
him that he had finished his last shift with the company because the
company were dispensing with his services from that time onwards, but Q
they explained that he would be paid two months' salary. He asked
why he was being dismissed. They said it was because he was not up
to the required standard, that he had been warned several times to
improve, but he had not managed to do so. They helped him collect his
few personal belongings. They took him down with them to a waiting
car. The driver was a security officer in uniform. They sat him between
them in the back of the car. They drove him to the security gate, where ^
they transferred him and his belongings to his own car. He asked them
whether his dismissal was connected with a recent affair in which two
officers of the company had been accused of serious misconduct, and
had been dismissed. Was he suspected of anything similar? They said
it was not. It was only that he had been unable to fill the job of shift
engineer. E
The news of his dismissal spread through the works like wild-fire.
Many associated it with the other two who had been guilty of grave
misconduct. Outside the works, too, in the small town of Workington
(where he had lived all his life), the word went round. Rumours were
rife. The whole mill was shocked.
The effect on Robert Riddick was immediate and lasting. He has p
never got over it. He was greatly distressed. His health has been affected.
He has not been able to obtain work. He has been on social security
ever since.
Later that year (1969) he went to solicitors and brought an action
against the company, claiming damages for "wrongful arrest and false
imprisonment." The action was in the list to be heard at the Carlisle
Assizes on January 17, 1971. But it was settled on these terms endorsed G
on counsel's briefs:
"£251 in court to be paid out to plaintiff's solicitors and costs on
party and party basis to be taxed in default of agreement; this sum
having been accepted before the hearing. Allegations of wrongful
arrest and false imprisonment against defendant unreservedly with-
drawn." H
Mr. Riddick was very discontented. He had wanted his case decided
by a judge and jury: and here he had come away with virtually no

889
1 Q.B. Riddick v. Thames Board Mills (C.A.) Lord Denning M.R.
redress. Even the £251 would, no doubt, go in the costs of his own
solicitors and counsel.
So on February 25, 1972, Mr. Riddick started another action against
the company, followed by a statement of claim on February 5, 1973. This
time he claimed damages for " defamation flowing from the wrongful
manner " in which he was dismissed. He acted in person. There is no
legal aid available for actions for defamation. The company applied to
B strike out on the ground that it covered the self-same ground as the pre-
vious action. Both the registrar and the judge struck it out. On appeal
on November 5, 1973, the Court of Appeal also struck it out. But
in the course of the judgment, Megaw L.J. said that there was one matter
which he might raise in fresh proceedings and that was a claim for
defamation in respect of a memorandum of April 16, 1969. It was an
P internal memorandum made by one servant of the company to another.
Mr. Riddick only got to know of this memorandum because it had been
disclosed on discovery in the first action.
Encouraged by this suggestion, on December 19, 1974, Mr. Riddick
issued yet another writ against the company and delivered a statement of
claim. This contained a lot of the old matter and that was struck out on
July 21, 1975, by Faulks J. But he allowed the part to remain which
D was based on the memorandum of April 16, 1969.
This last action was tried before Caulfield J. and a jury at Carlisle in
• May 1976. Mr. Riddick again appeared in person. It lasted five days.
The jury awarded Mr. Riddick £15,000 damages. The judge entered
judgment against the company for that sum. They appeal to this court.
I must say that £15,000 seems an extraordinarily large sum in respect of
g an internal memorandum. So I must tell how it came about.

Mr. Riddick's employment with the company prior to his dismissal
The mill at Workington was under a general manager, Mr. Scoble.
The head office of the company was at Purfleet in Essex, 300 miles away
from Workington. The officers at each end are in constant telephone
F communication with one another; as well as inter-departmental memo-
randa. The staff personnel manager at head office was Mr. Rixon, who
was assisted by a colleague, Mr. Fathers.
The company have a system whereby the work of all servants in
responsible positions is " appraised " regularly by a senior officer: and
a confidential report is made upon him. Mr. Riddick's work was
_, " appraised " accordingly: and he was shown the reports upon him. On
September 17, 1968, after Mr. Riddick had served one year as shift-plant
engineer, the chief engineer at Workington, Mr. Fleming, made this report
on him:
"His performance began promisingly, but crumbled rather suddenly
in May 1968 when he was taken off shift at his own request, and
having clearly lost his nerve . . . His problems appears one of con-
JJ stant apprehension . . . He discusses problems a lot seeking reassur-
ance . . . He may yet do very well when his confidence builds up . . ."
This appraisal was shown to Mr. Riddick and this comment was
Q.B. 1977—32

890
Lord Denning M.R. Riddick v. Thames Board Mills (C.A.) [1977]
made: "He agrees he worries too much, but says he is now happy in
the job, expects to maintain his performance."
On November 15, 1968, Mr. Fleming, the chief engineer, felt that Mr.
Riddick's performances had not improved, as had been hoped. So he
saw Mr. Riddick and gave him a warning and made a report of it to the
general manager at Workington, Mr. Scoble. The warning was in these
words:
"To come to the point, I am not satisfied with your performance
as a shift-plant engineer . . . Unless you pull your socks up very
shortly, you and T.B.M. must part company."
On February 20, 1969, Mr. Fleming made a written report to the
general manager at Workington, Mr. Scoble:
" I have to report that he has failed to fulfil the requirements of a
shift engineer and request that I be authorised to replace him. In
essence Mr. Riddick lacks the confidence or ability to be a shift
engineer."
On getting the report, the general manager at Workington telephoned
to the head office at Purfleet asking for authority to dispense with the
services of Mr. Riddick. He spoke to the staff personnel manager, a Mr.
D
Rixon, who made this reply in a memorandum:
" Since it appears that he has not been negligent in his duties, but
rather that the job is too big for him, I would suggest that we be a
little more generous than we need to be . . . I suggest, therefore, that
we give him two months' notice . . . but that we would not expect
him to report for duty during those two months."
E
On February 28, 1969, Mr. Riddick was dismissed in the humiliating
circumstances which I have already described. The general manager at
Workington was away at the time. But, when he came back, he made
this apology to Mr. Riddick, on March 5, 1969:
" I was . . . extremely sorry to hear that you had been escorted from
the works to the security gate, i.e., the car park, after this interview, F
and would say immediately that this was a totally wrong decision,
and you can rest assured that this matter has been very fully aired
in private discussions here. This type of action is only carried out
by our company if people are guilty of serious misconduct of any sort
within the confines of the plant and I would therefore offer an apology
on behalf of my colleagues for their somewhat misguided enthusiasm
in this particular instance." G
The chief engineer gave Mr. Riddick a good reference, saying that he
was extremely conscientious, kindly and personable, and was of excellent
character and integrity.

The memorandum of April 16,1969
Soon after his dismissal, Mr. Riddick went to see his solicitor in Wor-
kington. The solicitor took his complaint up with the people at Workington
and afterwards with the head office at Purfleet. He spoke on the telephone

891
1 Q.B. Riddick v. Thames Board Mills (C.A.) Lord Denning M.R.
to Mr. Rixon, the staff personnel manager. This was on April 14, 1969.
On the telephone Mr. Rixon tried to put the company's point of view, but
he felt that the solicitor wished to press the case. So Mr. Rixon asked
his colleague, Mr. Fathers, to find out the facts of the case. Then Mr.
Fathers, in Purfleet, had a telephone conversation with the two men at
Workington, Mr. Fleming and Mr. Smith, who had actually escorted Mr.
Riddick away from the factory on February 28: and he made a written
B report to Mr. Rixon, which is the memorandum complained of in this
action.
I will not read the whole of the memorandum. I will set out parts of
it, underlining the words said to be a libel on Mr. Riddick:
" After the annual shut of 1968, Riddick was told that he had been
employed as a shift-plant engineer and must go back on shift, which
C he did, albeit unwillingly. Since that time his efficiency has been in
question. He was not up to the demands of the job, he was unable
to work without close supervision and was frequently failing in
detail . . . Riddick asked why he was being dismissed, and was told
that he was not up to the required standard, that he had been several
times warned to improve, and he had failed to do so. Despite
D Riddick's known instability, there was no sort of scene and no argu-
ment . . . Knowing Riddick to be highly strung, unsure of himself,
and likely to be hysterical, Fleming and Smith planned carefully to
avoid embarrassment, and my impression is that they were intent only
on kindness and consideration. . . ."
£ Mr. Fathers dictated that memorandum to his secretary. She was also
the secretary to Mr. Rixon. She transcribed it and handed it to Mr.
Rixon. He read it and put it away in the file awaiting further develop-
ments. There it remained. No one else saw it until discovery in the first
action in 1970 when Mr. Riddick sued for wrongful arrest and false im-
prisonment. It was then included in the file handed to the solicitors for
P the company. They included it on August 18, 1970, among the documents
to be disclosed, not claiming that it was privileged. It was very material
to the claims in these actions and was in my opinion properly disclosed.
That report was obviously sent on a privileged occasion and the judge
so ruled. But the jury found that the words in it were defamatory of
Mr. Riddick and that he had proved malice. Not malice in Mr. Fathers
G in Purfleet. But in Mr. Fleming and Mr. Smith in Workington. Mr.
Fathers is dead. But Mr. Fleming and Mr. Smith were both called.' They
denied that they told Mr. Fathers that Mr. Riddick was of "known in-
stability . . . highly strung and likely to be hysterical." The jury must
have disbelieved them. They must have come to the conclusion that Mr.
Fleming and Mr. Smith did use those words on the telephone to Mr.
„ Fathers, and that they had no belief in their truth, and were, therefore,
malicious. I must confess that this seems a little hard on Mr. Fleming
and Mr. Smith—giving evidence in 1976 of a conversation in 1969. But
still it is the finding of the jury which this court must accept.

892
Lord Denning M.R. Riddick v. Thames Board Mills (C.A.) [1977]
The summing up .
At one point in the summing up the judge told the jury not to have
regard to the plaintiff's continued unemployment. He said: " . . . there is
no evidence that that particular document of April 16 played any part in
the plaintiff's continued unemployment." But at the very end of the case
he told the jury:
" Members of the jury, work on the basis that Mr. Riddick has made „
lots of applications for jobs. In fact he has got as low or as high,
whichever way one looks at it—I look on high as referring only to
highly skilled jobs—as to have got down to applying for a job as a
labourer. He has applied for every sort of job but has not got it.
There is no dispute about that. Work on that basis. Are you con-
tent with that, Mr. Riddick?
Mr. Riddick: Yes. C
Caulfield J.: Mr. Riddick has done his utmost to restore himself
to a job but so far he has failed. Very well, members of the jury,
you may retire."
I am afraid those last words must have led the jury to think that they
could give Mr. Riddick damages for his loss of employment for the seven
years since his dismissal. Otherwise I do not see how they could arrive D
at the figure of £15,000. That was a misdirection; because the events of
April 16, 1969, were six weeks after his dismissal and could have played
no part in it.
.On this point I think that there should in any case be a new trial. But
there are other questions to be considered before ordering a new trial.
E
The responsibility of the company
The company raise a very important point about their responsibility.
They say that the only persons who saw this memorandum were Mr.
Fathers, the company's officer, who dictated it to the secretary, who typed
it: and Mr. Rixon, the personnel manager, who received it, read it, and
filed it. It contained words critical of another employee of the company, p
Mr. Riddick. Such a situation arises every day in every company. A
confidential report is made commenting adversely on the efficiency of one
of the staff. It is sent to the manager, who reads it and keeps it in the
file. But it is never sent outside the company to anyone. The occasion
is clearly privileged. But suppose the officer who makes the report has
some grudge or spite against the other servant and makes the report mali-
ciously. The reporting officer himself is clearly liable in damages to the G
servant on whom he has reported. But is the company also liable in
damages to that servant on the ground that the reporting officer was
acting in the course of his employment?
Such a problem is not confined to companies. It applies also to an
individual who runs his own business. Suppose an individual employer
asks his manager for a report on one of the assistants: and the manager JJ
makes it maliciously. He may dictate it to a typist; or he may write it
out in his own hand and send it to the employer. The assistant can, of
course, sue the malicious manager. But can he sue also the employer

893
1 Q.B. Riddick v. Thames Board Mills (C.A.) Lord Denning M.R.
himself on the ground that the malicious manager committed a tort in the
course of his employment, for which the employer is responsible? It
would be most extraordinary if he could.
Take another instance which is quite common. Two servants of the
same company have a quarrel and each reports adversely on the other.
Each accuses the other of some misconduct or other in the course of his
employment. If both are malicious, is the company liable in damages to
B both of them?
I venture to suggest that in all these cases it would be quite unaccept-
able that the master should be held liable. A master should not be held
liable for reports made to him by one of his servants about the conduct
of another servant, even though it is in the course of the employment.
But what is the legal basis of it?
_ From time to time there has been much discussion on the true basis
of the master's liability for the wrongs of his servant. I will take two
competing theories.
Qui facit per alium jacit per se
According to one theory, the master is liable for the acts of his servants
because they are regarded as being authorised by him: so that in law
D the acts of the servant are the acts of the master. This theory is founded
on the maxim: Qui facit per alium facit per se. Thus in Middleton v.
Fowler (1699) 1 Salk. 282 Holt C.J. said:
" . . . no master is chargeable with the acts of his servant, but when he
acts in execution of the authority given by his master, and then the
act of the servant is the act of the master;...
In Hutchinson v. York, Newcastle and Berwick Railway Co. (1850) 5
Exch. 343, 350 Alderson B. said: " whatever the servant does in order to
give effect to his master's will may be treated by others as the act of his
master: ' Qui facit per alium, facit per se.' " In Bartonshill Coal Co. v.
McGuire (1858) 3 Macq. 300, 306, Lord Chelmsford L.C. said:
" every act which is done by a servant in the course of his duty is
F regarded as done by his master's orders, and consequently is the same
as if it were the master's own act, according to the maxim, Qui facit
per alium facit per se."
If that theory were to be applied to inter-departmental memoranda,
then it would follow that the act of the one servant in making the report
would be the act of the master: and the act of the other servant in
G receiving it and reading it would also be the act of the master. So it
would be in law the master making a publication to himself. No one can
be made liable for a libel published only to himself: any more than a
man is liable for writing a defamatory letter and keeping it in his desk,
showing it to no one.
That is an attractive theory. I know that it will not fit in with the
JJ cases where a company has been held liable for letters dictated by a
director to a typist. But in none of those cases was this point of publica-
. tion properly argued. So it is still a permissible theory, and I would for
myself adopt it.

894
Lord Denning M.R. Riddick v. Thames Board Mills (C.A.) [1977]
Respondeat superior .
According to another theory, the master is responsible for the wrong-
doing of his servant—not because it is his act—but because the policy of
the law is to make him responsible for wrongs done by the servant in the
course of his employment, even though the master did not authorise
the act, and even if he forbad it; and even though it was not done for the
master's benefit but for the servant's own benefit. This theory is based
on the maxim respondeat superior. It has prevailed in the law ever since "
Lloyd v. Grace, Smith & Co. [1912] A.C. 716, and must now be accepted
as the correct basis of the master's liability. On this basis the inquiry is
simply this: was the servant liable? If yes, was he acting in the course
of his employment? If yes, then the master is liable: see Young v.
Edward Box and Co. Ltd. [1951] 1 T.L.R. 789, 793; Imperial Chemical
Industries Ltd. V. Shatwell [1965] A.C. 656, per Lord Pearce, at pp. 685- c
686.
It is this theory which has been applied in the many cases where a
director of a company or other servant has dictated a letter, which is sent
to a customer or some other person outside the firm containing criticisms
of him. It has always been assumed that there was a publication by the
company, but held that the dictation by the servant to the typist is a pj
privileged occasion. So that, if it is malicious, the employer is liable:
see the long list of cases from Pullman v. Walter Hill & Co. Ltd. [1891]
1 Q.B. 524, through Osborn v. Thomas Boulter and Son [1930] 2 K.B.
226, to Bryanston Finance Ltd. V. de Vries [1975] Q.B. 703.
None of those cases, however, concerned inter-departmental memo-
randa. And, I must say, that to my mind these stand on a very different g
footing. These should form an exception to the doctrine of respondeat
superior, just as the doctrine of common employment did in former times.
That doctrine was introduced by the judges in 1837 in Priestley v. Fowler
(1837) 3 M. & W. 1. It was at that time avowedly based on the policy of
the law. The court said that to carry the principle of respondeat superior
so far as to make a master liable for the negligence of a fellow-servant p
would " carry us to an alarming extent." It was later justified on the
theory that there was an implied term in the contract of employment by
which every servant took on himself the risk of injury from the negligence
of a fellow-servant: see Hutchinson v. York, Newcastle and Berwick
Railway Co., 5 Exch. 343, per Parke B., at p. 351. This implied term
was a fiction, but it served the public policy of the time. In those days Q
no employer was insured against accidents to his workmen, so some
limitation had to be placed on his liabilities. When insurance became
general for personal injuries, the doctrine was seen to have outlived its
usefulness in that sphere. It was abolished by Parliament in 1948 so
far as personal injuries were concerned. But I would suggest that it
may be still available today in cases of defamation. " Common employ- „
ment" may, I think, be used in aid of the public policy of our time: so
as to protect a master from being liable for inter-departmental memoranda
made by his servants.

895
1 Q.B. Riddick v. Thames Board Mills (C.A.) Lord Denning M.R.
. The simple solution
Either of those two theories would afford sufficient basis for the ex-
emption of the master. But in case neither of them satisfies those with
logical minds, I would say with Holmes J., that " The life of the law has not
been logic: it has been experience": Holmes Common Law (1882),
p. 1. The experience of this very case is lesson enough. Assuming that
the master is liable for confidential reports, many days and much expense
B have been consumed in the court of trial and in this appeal court in in-
vestigating the evidence of malice, the infection of malice, the imputation
of malice, and so forth. When you consider all these complications, you
will, I hope, come to the conclusion that it would be much better to adopt
the simple solution which I propose: a master should not be liable for a
confidential report made by one of his servants about another, even though
Q that servant was mahcious in making it. Let the aggrieved servant bring
his action against the malicious servant who reported on him. But do not
let him bring it against the master who employs both of them and has
done nothing wrong.

Documents disclosed on discovery
Yj There is, however, another point raised by the company. This memo-
randum on Mr. Riddick of April 16, 1969, was disclosed to him in the
course of the first action. He would not have known anything of it unless
it had been disclosed—as it had to be—in the affidavit of documents
ordered by the court. Now the question is: having thus obtained the
document, is he entitled to sue the company on the ground that it was
a libel on him?
E Discovery of documents is a most valuable aid in the doing of justice.
The court orders the parties to a suit—both of them—to disclose on oath
all documents in their possession or power relating to the matters in issue
in the action. Many litigants feel that this is unfair. I have often known
a party—faced with such an order—saying to his solicitor: " Need I dis-
close this document to the other side? It will damage our case greatly if
P they get to know of it." The solicitor's answer is, and must be: " Yes,
you must disclose it, however much it damages your case." Again I
have known a party to say to his solicitor: " But these are my own con-
fidential papers—my own personal diary—our own inter-departmental
memoranda. Must I disclose them? " The answer of the solicitor again
is "Yes. You must disclose them. Confidential information has no
privilege from disclosure: see Alfred Crompton Amusement Machines Ltd.
G v. Customs and Excise Commissioners (No. 2) [1974] A.C. 405, 433. The
court insists on your producing them so as to do justice in the case."
The reason for compelling discovery of documents in this way lies in
the public interest in discovering the truth so that justice may be done
between the parties. That public interest is to be put into the scales
against the public interest in preserving privacy and protecting confidential
JJ information. The balance comes down in the ordinary way in favour of
the public interest of discovering the truth, i.e., in making full disclosure.
This balancing act—of weighing the competing public interests—is what
I advocated in my judgment in D. v. National Society for the Prevention

896
Lord Denning M.R. Riddick v. Thames Board Mills (C.A.) [1977]
of Cruelty to Children [1976] 3 W.L.R. 124, 132-134. I did not intend
in any way to diverge from the 16th Report of the Law Reform Committee
(Privilege in Civil Proceedings) (1967) (Cmnd. 3472), para. 1. I went, no
doubt, a little too far in suggesting a presumption in favour of con-
fidentiality, as the House of Lords afterwards pointed out in [1977] 2
W.L.R. 201. But otherwise I find nothing in the speeches to detract from
the balancing process. The thing to do in every case is to weigh the
competing public interests and see which way the scales come down: and B
this, I gather, was the view preferred by Lord Simon of Glaisdale: see
[1977] 2 W.L.R. 201, 228-229; and by Lord Edmund-Davies at p. 233
(V) and (VI).
I proceed to hold the balance in the present case. On the one hand
discovery has been had in the first action. It enabled that action to be
disposed of. The public interest there has served its purpose. Should it Q
go further so as to enable the memorandum of April 16, 1969, to be used
for this libel action? I think not. The memorandum was obtained by
compulsion. Compulsion is an invasion of a private right to keep one's
documents to oneself. The public interest in privacy and confidence
demands that this compulsion should not be pressed further than the
course of justice requires. The courts should, therefore, not allow the ^
other party—or anyone else—to use the documents for any ulterior or
alien purpose. Otherwise the courts themselves would be doing injustice.
Very often a party may disclose documents, such as inter-departmental
memoranda, containing criticisms of other people or suggestions of negli-
gence or misconduct. If these were permitted to found actions of libel,
you would find that an order for discovery would be counter-productive.
The inter-departmental memoranda would be lost or destroyed or said E
never to have existed. In order to encourage openness and fairness, the
public interest requires that documents disclosed on discovery are not to
be made use of except for the purposes of the action in which they are
disclosed. They are not to be made a ground for comments in the news-
papers, nor for bringing a libel action, or for any other alien purpose. The
principle was stated in a work of the highest authority 93 years ago by p
Bray J., Bray on Discovery, 1st ed. (1885), p. 238:
" A party who has obtained access to his adversary's documents under
an order for production has no right to make their contents public or
communicate them to any stranger to the suit: . . . nor to use them
or copies of them for any collateral object . . . If necessary an under-
taking to that effect will be made a condition of granting an Q
order: . . . "
Since that time such an undertaking has always been implied, as Jenkins J.
said in Alterskye v. Scott [1948] 1 All E.R. 469, 471. A party who seeks
discovery of documents gets it on condition that he will make use of them
only for the purposes of that action, and no other purpose. The modern
authorities are well discussed by Talbot J. in Distillers Co. {Biochemicals) JJ
Ltd. v. Times Newspapers Ltd. [1975] Q.B. 613, 621; and I would accept
all he says, particularly as to the weighing of the public interests involved:
see p. 625.

897
1 Q.B. Riddick v. Thames Board Mills (C.A.) Lord Denning M i l .
In my opinion, therefore, Mr. Riddick was not entitled to use the
memorandum of April 16, 1969, as the basis of an action for defamation.

Conclusion
Mr. Riddick put his case before us with courtesy and moderation. We
wish that he could have had legal aid so as to deal with the points raised
by Mr. Hoolahan. But that is not available in libel cases. So Mr. Riddick
B has had to conduct the case on his own. Whilst one feels much sympathy
for him in being out of work for so long, nevertheless the fact remains
that this memorandum of April 16, 1969, had nothing to do with it. It
did not affect his reputation in the least. It did not damage him in the
slightest. His cause of action, even if it existed, was of the most technical
description. But in my opinion it did not exist at all. I would allow the
Q appeal and enter judgment for the defendant company.

STEPHENSON L.J. The jury have awarded the plaintiff £15,000 for
the injury caused to his feelings and reputation by the memorandum of
April 16, 1969. That memorandum was composed by Mr. Fathers from
information partly if not mainly derived from what Mr. Fleming and Mr.
Smith had told him on the telephone. It was typed by a secretary, read
by Mr. Rixon and filed. No one else was proved to have seen it until it
was disclosed in the plaintiff's earlier action against the defendant com-
pany. That means that the slanders of Mr. Fleming and Mr. Smith were
published only to Mr. Fathers and through him to the typist and Mr.
Rixon, and that very limited publication took place over six weeks after
the company had dismissed the plaintiff and, according to his own evidence,
E grievously wounded his feelings and irreparably damaged his health and
reputation on February 28, 1969.
It follows from those few undisputed facts that the jury's award is so
grossly excessive that it must have taken into account other matters than
the consequences of the publication of the memorandum. That means
that the company is entitled to a new trial and a re-assessment of damages
P at a very modest figure—if the plaintiff is entitled to any damages at all.
I have no doubt that in spite of the judge's direction on damages the
jury must have included in that amount damages for the conduct of Mr.
Fleming and Mr. Smith on February 28, 1969, perhaps damages for a
wider publication than was proved in evidence and possibly a punitive
element as well. [His Lordship examined the summing up on the issue
of damages and of the evidence given on that issue, and continued: ]
G Furthermore the plaintiff made it clear in his intelligent, courteous and
candid address to us that he suspected or believed that what Mr. Fleming
and Mr. Smith had said about him on the telephone had been overheard
by servants of the General Post Office and that the memorandum of April
16 had reached the outside world and contributed to his continuous un-
employment. But he did not cross-examine Mr. Rixon to suggest that he
U had shown the memorandum to anyone else, even a filing clerk. There
was no proof of these suspicions and the jury may have acted wrongly
on them also.
Only by considering " the industrial exercise of February 28, 1969 "

898
Stephenson LJ. Riddick v. Thames Board Mills (C.A.) [1977]
[the manner of dismissal] to be relevant to damages as well as to malice
could the jury have arrived at a figure of £15,000 to compensate the
plaintiff for such a restricted publication as that of April 16, 1969. It
was natural that they should have fallen into the same error as the plaintiff
[who in his final speech claimed to have lost £21,000 by reason of the
defendants' conduct], but it was unjust to the company.
But is the plaintiff entitled even to minimal damages for what Mr.
Fleming and Mr. Smith maliciously said about him and Mr. Fathers wrote B
about him? Mr. Hoolahan concedes that he cannot claim absolute privilege
for the memorandum, as had been contended before this court in the 1972
action, and pleaded in paragraph 6 of the defence in this action, but only
qualified privilege. That the judge rightly accepted, and Mr. Hoolahan
does not challenge the jury's finding of malice, if that is limited to malice
on the part of Mr. Fleming and Mr. Smith only. But he maintains that
Mr. Fathers was not " infected with " that malice, as the plaintiff alleged,
and that the company's privilege was not destroyed by that malice. Mr.
Hoolahan claims also that the company is not liable to pay the plaintiff
any damages on two other grounds: (1) no publication, (2) no right of
the plaintiff to use the memorandum for a collateral and ulterior purpose
to that for which it was disclosed in the earlier action.
I consider first the defence of no publication. By paragraph 5 of the D
company's defence it was pleaded that
" . . . the said documents of March 5 and/or April 16, 1969, were
each sent by one servant or agent of the defendants to another servant
or agent of the defendants acting in the course of their employment
and in the premises the defendants deny that there was any publication
by the defendants of the said documents or either of them." £
No issue now arises on the document of March 5 because the judge's
ruling that it was written on an occasion of qualified privilege without any
evidence of malice is not challenged in this appeal.
Publication is not actionable unless it is publication to a third party.
A cannot sue B for defaming him to A himself, or to B himself; that is
to say where B reads to himself his libel on A and then locks it away, p
A must prove that B defamed him to C. Here it is said that the defendant
company acting by its servant or agent Fleming or Smith or Fathers
published defamatory words to its servants or agents Fathers, his typist
and Rixon, each and all acting on behalf of itself so that there was no
publication except by the company to itself.
This would be arguable were it not concluded against Mr. Hoolahan,
in my judgment, by decisions of this court. In Pullman v. Walter Hill & G
Co. Ltd. [1891] 1 Q.B. 524 the defendants were Walter Hill & Co. Ltd., a
limited company, whose managing director dictated a defamatory letter to
a " typewriter "; the letter was copied by a boy and sent to the plaintiff's
office where it was read by two clerks. Day J. ruled that there was no
publication to the typewriter and the boy, who were both employed by
the defendant company, or to the clerks employed by the plaintiff. On JJ
appeal it was argued for the plaintiff that there was publication to both
pairs of servants or agents and for the company that a corporation cannot
write a letter except through an agent (pp. 525-526). The Court of Appeal

899
1 Q.B. Riddick v. Thames Board Mills (C.A.) Stephenson LJ.
held that there was publication of the letter and no protection by privilege:
see per Lord Esher M.R. at p. 527, per Lopes L.J. at p. 529 and per
Kay LJ. at p. 530. Later decisions of this court have distinguished and not
followed the decision on privilege but have never questioned the decision
on publication.
In Boxsius v. Goblet Freres [1894] 1 Q.B. 842, judgment was entered
by Lawrence J. against both defendants, one of whom was a firm of
B solicitors, for a libel in a letter dictated by one of the firm to one clerk
and copied by another. It was then sent to the plaintiff and was not
published to anyone but the plaintiff herself and the defendants' own
typewriting and copying clerks. The first ground of appeal was that
there was no evidence of publication; but this court held that there was,
Lord Esher M.R. and Davey LJ. not referring to the question, Lopes LJ.
_, at p. 846 expressly stating that there was evidence of publication by com-
municating the letter to the clerks.
Edmondson v. Birch & Co. Ltd. [1907] 1 K.B. 371 was another case
in which a limited company was sued for libel, as in Pullman's case [1891]
1 Q.B. 524, in a letter (and also in a telegram) dictated by its managing
director. Lawrence J. ruled at p. 374 (presumably as in Boxsius' case
[1894] 1 Q.B. 842 following Pullman's case) that there was publication to
D the defendant company's clerks but that the company was protected by
privilege. There appears to have been no argument on publication in
either court, but in both courts the defendant company was protected by
privilege.
In Roff v. British and French Chemical Manufacturing Co. and Gibson
[1918] 2 K.B. 677 the first defendants appear to have been a firm, not a
p limited company, but as Scrutton LJ. at p. 683 pointed out the appeal
raised no question:
" under what circumstances the fact that a letter is read by a clerk,
shorthand writer or typist of the sender, or by a clerk, shorthand
writer or copyist of the receiver, constitutes a separate publication
to those servants."
p It is not then surprising that when Osborn v. Thomas Boulter and Son
[1930] 2 K.B. 226 was argued and decided the defence admitted publica-
tion to the servants of the defendant firm, and when this court had recently
to consider a letter dictated to a secretary by an individual, many questions
relating to privilege and its extent were canvassed but nobody questioned
the fact of publication to the secretary or suggested that the individual
was by dictating the letter to his servant or agent merely communicating
G
the letter to himself: Bryanston Finance Ltd. V. de Vries [1975] Q.B. 703.
I therefore feel bound to reject the submission that there was no
publication and respectfully to dissent from the opinion of Lord Denning
M.R. that the point of publication was not properly argued in any of
these cases and it is permissible for this court to adopt the theory that
the company was publishing a libel to itself.
JJ The next defence of qualified privilege must rest on the company's not
being responsible for the malice which the jury found against the com-
pany's servants who published the libel. That malice was proved against
Mr. Fleming and Mr. Smith. It was not, in my judgment, proved against

900
Stephenson LJ. Riddick v. Thames Board Mills (C.A.) [1977]
Mr. Fathers. He would not be " infected by " their malice as alleged in
the plaintiff's statement of claim borrowing from the language of Lord
Denning M.R. in Egger v. Viscount Chelmsford [1965] 1 Q.B. 248, 261,
where it was held that even in a joint publication some publishers may be
privileged because not malicious and some not privileged because malicious.
So the company can only be responsible for the libel published by Mr.
Fathers if the libel is Mr. Fleming's or Mr. Smith's because they caused
its publication. They themselves would be responsible for their slanders B
to Mr. Fathers, but they would only be responsible for the publication of
his slander or libel to the typist (the lords justices differed in Osborn's case
[1930] 2 K.B. 226 on which such a communication would be) if they con-
templated or must have contemplated that he would communicate it to
the typist, and they would only be responsible for the publication of the
libel to Mr. Rixon if they contemplated or must have contemplated its p
further communication to him. This matter was not explored in evidence
as it should have been, and would have been if Mr. Riddick had been
represented by counsel. I appreciate the force of what Waller L.J. is
going to say on this point in the judgment which I have had the privilege
of reading in draft. I agree with him that there is no proof of any
particular words having been spoken by Mr. Fleming or Mr. Smith—
except by inference from Mr. Fathers's memorandum itself. But I have D
reached the same conclusion as Lord Denning M.R. that the jury dis-
believed their denials, and were entitled to find that they or one of them
spoke some at least of the defamatory words recorded in the memorandum
and must have expected Mr. Fathers to write down and pass on to some-
one in authority the detailed account requested of them. At any rate I
would not like to decide against a plaintiff appearing in person a point p
covered somewhat imperfectly by his pleading and supported to a limited
extent by the evidence, after the judge had assumed that the jury could
decide it in his favour. On the whole I would regard the evidence as
justifying the inference that Mr. Smith, if not Mr. Fleming, had the
necessary knowledge to impute to him responsibility for the publications
to the typist and Mr. Rixon.
If that is right, the company must answer for the malice of Mr. Smith F
and possibly of Mr. Fleming, because although they were not employed to
render a malicious account of the plaintiff to fellow servants or the com-
pany, they were doing with malice what it was in the course of their
employment to do without malice and so their activities were within the
ordinary principles on which the law declares "respondeat superior":
compare what Lord Denning M.R. said in Egger's case [1965] 1 Q.B. 248, G
261.
I regret that I cannot agree with Lord Denning M.R. in extricating the
company from the application of respondeat superior by reintroducing the
doctrine of common employment. For I am uncertain whether public
policy requires the reintroduction and whether freedom to make and receive
internal reports and memoranda is not adequately safeguarded by the need r,
to prove malice without in effect conferring on their publication an absolute
privilege for the employer himself.
It may seem unfair to an employer, particularly a corporation which

901
1 Q.B. Riddick v. Thames Board Mills (C.A.) Stephenson L J.
must act and speak through servants and agents, to be responsible to a
third party, whether or not he is, or has been, its servant, for charges and
counter charges in reports which it is its duty to all its servants as well
as its shareholders and customers to obtain. Yet it is perhaps no more
unfair than a company's responsibility for the fraud of its servants, in-
cluding in some circumstances fraud which causes loss not only to third
parties but to the company itself.
B It may also be thought to be in the public interest of efficiency and
economy that companies should be free to obtain candid reports on their
employees, perhaps even after they have left their employment, and that
in performing this task companies and their servants should be unhampered
by fear of losing privilege for such reports; third parties being sufficiently
protected against the danger of such reports being made with malice by
their right to sue those individual servants of the company who actually
make and publish the reports. But on the other hand it may be thought
as important for the public that companies should control the abuse of
such privilege as that the privilege itself should be maintained.
Some support for the proposition that a company should not be
responsible for a publication by one servant with malice on the part of
another may be found in the observation of Sellers L.J. in Broadway
D Approvals Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805, 813G;
but where both servants are acting in the course of their employment by the
company (as here) I cannot see that the company can escape responsibility
for the malice of one simply because the other is without malice.
I therefore reject the submission that the company can defeat the
plaintiff's claim by the plea of qualified privilege.
That leaves only the plea in paragraph 7 of the defence:
E
" the said document of April 16 was disclosed to the plaintiff in the
course of proceedings between the plaintiff and the defendants by
writ issued October 3, 1969, . . . and not otherwise and the defendants
contend that it is an abuse of the process of the court for the plaintiff
to rely on such a document so obtained herein."
p The authorities cited by Mr. Hoolahan on legal professional privilege
go at least as far as to show that the company may well have been right
not to claim privilege from discovery for the memorandum of April 16,
1969, in the 1969 action in which it was in fact produced for inspection
and thereby came for the first time to the knowledge of the plaintiff. But
the authorities cited by Mr. Hoolahan on the use of such a document
otherwise than in the proceedings in which it is disclosed establish that
G the party so using it is in breach of an implied obligation not to use it
so, which will sometimes be enforced by an undertaking to the court as
a condition of its production: Richardson v. Hastings (1844) 7 Beav. 354;
Hopkinson V. Lord Burghley (1867) L.R. 2 Ch.App. 447; Alterskye V.
Scott [1948] 1 All E.R. 469 and Distillers Co. (Biochemicals) Ltd. v. Times
Newspapers Ltd. [1975] Q.B. 613. Those authorities, particularly the
fj admirable statement of the principle by Talbot J. in the last case at p. 621,
indicate that the obligation is owed to the party who produces the docu-
ment on discovery and to the court; that party is entitled to the protection
of the court against the use of the document otherwise than in the action

902
Stephenson LJ. Riddick v. Thames Board Mills (C.A.) [1977]
in which it is disclosed; and that protection is necessary for the proper
administration of justice; it is important to the public and in the public A
interest that the protection should be enforced against anybody who makes
improper use of it.
Did the plaintiff make such an improper use of the memorandum by
suing the company on it for defamation? If so, can he recover damages
from the company? In my judgment, the answer to the first question is
" Yes," and to the second " No." B
At first sight he might appear to be suing on the memorandum with
the leave of the Court of Appeal in the 1972 action. But there is no
indication in the judgments of the Court of Appeal that the court knew
that the plaintiff first learnt of the memorandum after it had been obtained
by his then solicitors on discovery in that action. The company's objec-
tions to the plaintiff suing on it were, in effect, pleas of res judicata and Q
absolute privilege. There is no hint of the objection now taken that to
sue on it in a fresh action is an abuse of the process of the court. And
Megaw LJ. made it clear that the court was giving the plaintiff leave to
sue on it, though striking out paragraph 10 of the statement of claim
which raised it in an objectionable form, subject to any objections which
the defendant company might take. It would, I think, have been open to
the company to take this third objection to paragraph 10, but the plaintiff D
would have had then, as he has now, an arguable case on it and the court
would not, on this ground of objection, have made any different order or
denied him the right to bring a fresh action on the memorandum. Now
that the point has been argued—and I could wish the plaintiff had been
legally represented and we had had the benefit of argument by counsel
on both sides, though Mr. Hoolahan has done his best to put both sides g
of the case—I have come to the conclusion that the plaintiff is manifestly
using the memorandum in a way which is contrary to the public interest
and unjust to the company.
As he has obtained the memorandum in this way and decided to sue
on it, can he be prevented from using it to get damages from the company?
Or is it like evidence unlawfully obtained in a criminal case which the
prosecution is nevertheless entitled to adduce against the defendant? The
books do not appear to provide a case which answers these questions
directly; but in my judgment the court has and should generally use the
power to protect parties who make full and frank disclosure of documents,
and the public interest in such disclosure, by discouraging the use by a
plaintiff in a later action of a document obtained on discovery in an
earlier action. If the court can require an undertaking from a plaintiff G
not to misuse a document before it is produced to him, it should have
the power to restrain him from misusing it after it has been produced.
And if he misuses it before the court restrains him why should the court
allow itself to be used to countenance his misuse of it? I think it is
entitled and indeed bound to refuse him help and to regard his attempt to
get it as an abuse of its process. ^
I would therefore allow the appeal on this ground. There may be
cases in which a plaintiff would be justified in bringing an action on a
document disclosed in an earlier action. I do not say that it could never

903
1 Q.B. Riddick v. Thames Board Mills (C.A.) Stephenson LJ.
be done without abusing the process of the court. But generally speaking
it would be an abuse of its process and in the circumstances of this case
the plaintiffs use of this memorandum is an improper use which the
court should not countenance. I see no reason why he could not have
done justice to himself—and to the company—by amending his writ in
the 1969 action to add the claim which he delayed making until he pleaded
paragraph 10 of his statement of claim in the 1972 action and is making
B in this action. Perhaps he was then advised that it added so little to his
existing claim as to be not worth making.
I hope that the plaintiff will appreciate that if the appeal is allowed on
this point of law he is not thereby deprived of the chance of obtaining
any sum of money which he would regard as adequate compensation for
the injury which he understandably believes that some of the company's
_, servants have done him. He would not in any case be entitled to receive
in this action more than a very small sum.

WALLER LJ. The plaintiff Robert Riddick joined the defendant com-
pany at their factory at Workington in 1967. Prior to that he had been
employed by another Workington company for some 30 years. On Sep-
tember 4, 1967, he started employment with the defendant company on
the night shift responsible for the day to day running of the engineering
division on that shift. He continued on the night shift until May 1968,
when there was a change. There is a dispute between the parties as
to precisely what happened then but which is unnecessary in this case to
consider. Suffice it to say that after a fortnight's holiday he returned to
work on the day shift. The plaintiff remained on the day shift until the
E autumn when he returned to work on the night shift where he had started.
By this time the plaintiff's employers, the company, were beginning to
have doubts about his ability to do the job. At the end of one year,
namely, in September 1968, having been with the company 12 months
there was an appraisal, strictly confidential, made, which was seen by the
plaintiff and which showed the company's view of his capabilities. At
p that stage it was reported that he had lost his nerve in May and that one
of his problems was one of constant apprehension and constant search
for reassurance and that he was always seeking reassurance when discuss-
ing problems. He saw his report at that time and commented that he
agreed he worried too much.
Thereafter the company arranged to keep a constant check on his
work and the time came when it was decided that he was not up to the
G job he was doing and on February 28, 1969, he was dismissed.
The manner of his dismissal was unfortunate. It was decided to tell
him at the end of his shift and arrangements were made to accompany
him to his car and it was said, though denied by the company, that instruc-
tions were given that he was not to be admitted to the company's premises
again. When he was being taken to his car it was in a company car
JJ driven, as it happened, by a security officer and the plaintiff was seated
in the middle between Mr. Fleming and Mr. Smith. It gave the appear-
ance to anybody who saw it that he was being dismissed for something
disgraceful.

904
Waller LJ. Riddick v. Thames Board Mills (C.A.) [1977]
The plaintiff was extremely upset about the manner of his dismissal
and of course about the dismissal itself. He was given a reference by
the defendants but I need not refer to it.
On April 2, Mr. Bacon, a solicitor acting on the plaintiff's behalf,
visited the company's premises at Workington and saw Mr. Johnson.
Mr. Johnson informed Mr. Rixon at head office at Purfleet, Essex, of the
meeting with Mr. Bacon. On April 16 Mr. Rixon requested Mr. Fathers
to investigate the circumstances of the dismissal. Mr. Fathers was another B
of the company's servants at headquarters at Purfleet. On April 16,
having spoken by telephone to Mr. Fleming and Mr. Smith at Workington,
Mr. Fathers prepared a report. This report went to Mr. Rixon who read
it and filed it. It is to be noted that there is no evidence that anybody
saw the report except Mr. Rixon and the typist who typed it.
In 1969 the plaintiff, through his solicitors, started proceedings against r
the company for false imprisonment and as part of the statement of claim
as originally drafted it was alleged that the manner of his arrest was such
as to bring him into public odium and contempt. In due course that
action was set down for trial before Bristow J. at Carlisle but before the
trial the parties came to terms. The action was withdrawn on terms
endorsed on counsel's brief which included the payment of £251 to the
plaintiff and the withdrawal of the allegations of wrongful arrest and D
false imprisonment.
In the course of the proceedings for that action the report of April 16,
1969, by Mr. Fathers was disclosed to Mr. Riddick. The action having
been settled Mr. Riddick commenced new proceedings against the com-
pany. By a writ issued on February 25, 1972, Mr. Riddick claimed
damages for defamation p
"flowing from the wrongful manner in which the plaintiff was dis-
missed from his employment as shift plant engineer at the defendants'
factory on February 28, 1969."
There was a statement of claim served, drafted by Mr. Riddick personally,
the details of which I do not need to repeat save this, the company applied
to have it struck out and the whole of the statement of claim was struck p
out but with observations in the Court of Appeal in November 1973 that
there was just a possibility of proceedings being conducted in relation
to the report of April 16, 1969, and of two letters dated March 5, 1969.
Thereupon Mr. Riddick started these proceedings which are based
on the report of April 16, 1969, and also of the other two letters to which
I need not refer again because the judge ruled that there was no evidence
of malice in relation to those two letters. G
This action therefore related in the end solely to the report of April
16, 1969. The action came on for trial before Caulfield J. at Carlisle
on May 21, 1976, and after a hearing lasting five days the jury returned
a verdict in favour of the plaintiff for £15,000. The company now appeal
against that decision.
It is to be observed that the sole question before the jury was whether JJ
or not the report of April 16 was defamatory and if it was, bearing in
mind that it was only published to Mr. Rixon who immediately put it in
a file, what if any were the damages. Pausing there, the plaintiff's main

905
1 Q.B. Riddick v. Thames Board Mills (C.A.) Waller LJ.
concern was about the manner of his dismissal but by April 16 he had
been dismissed and the damage, if any, caused by the defamatory nature
of the report of April 16 must in my view be small. It was only sent
to Mr. Rixon and he immediately filed it.
The company's defence to the claim was threefold: (1) no publication
(2) qualified privilege (3) an abuse of the process of the court to found a
claim on a document disclosed on discovery. They say that Mr. Fathers
B was reporting to a fellow employee and was doing his duty making a
report as requested by his employers. Mr. Fathers is dead. The plaintiffs
answer to the plea of qualified privilege is that the company was actuated
by malice. The plaintiff does not rely on malice on the part of Mr.
Fathers. The burden of proof being upon the plaintiff it would be im-
possible for him to prove any malice on the part of Mr. Fathers who is
Q now dead more especially as Mr. Fathers was simply an officer of the
company in Purfleet who did not know the plaintiff personally. What the
plaintiff suggests is that there was malice on the part of Mr. Fleming
and Mr. Smith who were the two people that Mr. Fathers consulted in
order to obtain the information. He submits that the document prepared
by Mr. Fathers was " infected " by the malice of Fleming and Smith.
I do not here set out the whole of the report of April 16 but quote
D certain paragraphs. Paragraph 1:
"The following report arises from a conversation, at your request,
with John Fleming and Jim Smith at Workington by telephone on
April 16 concerning the Riddick case."
The report then goes on to describe one or two movements made by Mr.
E Riddick and then says:
" Since that time his efficiency has been in question. He was not up
to the demands of the job, he was unable to work without close
supervision, and was frequently failing in detail."
That sentence is one of which complaint is made by the plaintiff. Then
•p later on in the same report, having described the manner in which Mr.
Riddick was dismissed there follows this sentence: " Despite Riddick's
known instability, there was no sort of scene and no argument." That
is another sentence of which complaint is made. And then, towards the
end of the report there occur these words:
"Knowing Riddick to be a highly strung, unsure of himself, and
_ likely to be hysterical, Fleming and Smith planned carefully to avoid
embarrassment, and my impression is that they were intent only on
kindness and consideration."
That sentence also is one on which Mr. Riddick relies as being defamatory.
I have already mentioned that the sole question for the jury was the
defamatory nature of the report of April 16. The Court of Appeal in
JT dealing with the second action started by Mr. Riddick made it absolutely
clear that the manner of his dismissal and the circumstances arising from
that manner were not matters which could be litigated again. The com-
promise of the original action disposed of those questions.

906
Waller LJ. Riddick v. Thames Board Mills (C.A.) [1977]
Mr. Riddick was appearing at Carlisle personally and was not repre-
sented and clearly that provides difficulties for the court, particularly in
a case of defamation where there are technical rules which the litigant in
person cannot understand. Nevertheless it is most unfortunate that Mr.
Riddick's case consisted very largely of evidence about the original dis-
missal. He called 14 witnesses besides himself and those 14 gave evidence
before Mr. Riddick gave his evidence. Some of those witnesses gave
evidence about the facts of his dismissal, the manner of it and the con- B
elusions which they drew from it. Others were giving evidence about his
quality and behaviour and by implication giving the lie to the reasons for
his dismissal. All of them were however dealing with the events around
the time of the dismissal and in my opinion were irrelevant to the
question of damage for this libel. The only relevance of those wit-
nesses was to show whether or not the witnesses for the company, in
particular Fleming and Smith, were truthful. The undoubted effect of all
those witnesses was to lead the jury to do the very thing which they were
not supposed to do. The judge did warn them that they must give
damages only for the libel and not for the earlier dismissal but, in my
opinion, the weight of the evidence was such as to make it almost im-
possible to prevent the jury from taking it into account. Unfortunately,
while the judge had warned the jury not to take account of the earlier D
dismissal, there was a passage at the end of the summing up which would
undo those earlier warnings. Mr. Hoolahan, for the company, asked
the judge to direct the jury that the fact that the plaintiff had applied for
a very large number of jobs without success was irrelevant. The judge
did not do so. He said:
"Members of the jury, work on the basis that Mr. Riddick has j?
made lots of applications for jobs . . . He has applied for every sort
of job but has not got it. There is no dispute about that. Work on
that basis."
That clearly left in the minds of the jury the relevance of the failure
to get jobs whereas the failure to get jobs had got nothing to do with this
particular memorandum. Were it necessary I would certainly have said p
that there should be a new trial on the issue of damage because in my
view the only damage which could result from this libel was the effect
on the mind of Mr. Rixon and that would be very small. However, for
reasons which I shall now set out, I am of opinion that this appeal should
be allowed and that judgment should be entered for the defendants.
The first submission of the company is that there was no publication
of this libel. The claim is made against the employers and not against G
Mr. Fathers personally or against Mr. Fleming or Mr. Smith. Mr. Riddick
is suing his employer for defamatory words either spoken or written by
fellow employees. At first sight it seems strange if an employer is liable
in such circumstances; for example one can visualise a case put by Lord
Denning M.R. in the course of argument where two employees are each
defaming the other maliciously and then each suing the employer for his ^
fellow employee's tort—this is a surprising result.
The question of whether or not there has been a publication may
depend upon the capacity in which the company are being sued. The

907
1 Q.B. Riddick v. Thames Board Mills (C.A.) Waller L J.
company may be liable under the maxim respondeat superior for the tort
of a servant. In such a case it would be solely on the basis of the
employer's vicarious liability for his servant's tort and the master would
only be liable if the servant would have been liable if sued. The question
then would be was there an actionable publication by Mr. Fathers when
he dictated the memorandum or indeed when he passed it to Mr. Rixon.
Doubt has been expressed in legal textbooks as to whether this is a
B publication or not. It does seem however that since Pullman v. Walter
Hill & Co. Ltd. [1891] 1 Q.B. 524, considered in Boxsius v. Goblet
Freres [1894] 1 Q.B. 842; Edmondson v. Birch & Co. Ltd. [1907] 1 K.B.
371; Roff v. British and French Chemical Manufacturing Co. and Gibson
[1918] 2 K.B. 677 and Osborn v. Thomas Boulter and Son [1932] K.B.
226 communication to a typist is publication by the person who dictates.
There is a difference of view among American authorities but the American
Restatement, Torts quoted in Arvey Corporation v. Peterson (1959)
178 F.Supp. 132, 136 states that such a dictation would be publication.
I should add that all these authorities agree however that if the subject of
the dictation was privileged the dictation itself would be privileged. See
also Bryanston Finance Ltd. v. de Vries [1975] Q.B. 703 where the ques-
tion of qualified privilege, when a letter is dictated to a typist, was
D considered. There the court, although differing as to the precise nature
of the privilege, was of the opinion that if the communication ultimately
was the subject of qualified privilege then the dictation also was the subject
of qualified privilege. In my view it is not possible to distinguish the
communication made by Mr. Fathers to the typist or to Mr. Rixon from
these other cases. I conclude therefore that Mr. Fathers published the
document.
E If one is considering the responsibility of the company as a corporation
and not merely as an employer responsible vicariously for Mr. Fathers its
servant then a strong argument could be put forward for saying that there
has been no publication. In such a case if there was publication outside
the corporation then clearly the corporation would be responsible for all
its servants concerned in making that communication. But if it is simply
F a question of vicarious liability it may not follow that the conduct of more
than one servant can be considered. And if he has a defence of qualified
privilege and is not malicious, the malice of others will be irrelevant.
Support for the view which I have expressed is to be found in Egger
v. Viscount Chelmsford [1965] 1 Q.B. 248 where the plaintiff had brought
an action against the assistant secretary and ten members of an unincor-
G porated body. The libel was contained in a letter signed by the assistant
secretary and the jury acquitted the assistant secretary of malice. Qualified
privilege attached to the occasion and it was held by this court that only
those particular members of the body who were themselves guilty of
malice were liable and that the assistant secretary and some other members
whom the jury said had not been guilty of malice were not liable. In
the instant case Mr. Fathers would be very much in the position of the
^ assistant secretary in Egger v. Chelmsford and there Lord Denning M.R.
said, at p. 264:
" The only difficulty is the case of the assistant secretary, Binney. If

908
Waller L J. Riddick v. Thames Board Mills (C.A.) [1977]
the matter were free from authority I should have thought it plain
that he was not liable. If the three members of the committee, who
were innocent of malice, are to go free, surely the innocent secretary
should go free too. During the course of the argument I put this to
Mr. Colin Duncan: suppose the plaintiff had sued Binney alone, as
she might well have done, as he was the man who signed the letter.
Binney pleads that the occasion was privileged. She replies express
malice. Surely she can only defeat the privilege by proof of express B
malice on the part of him, Binney, the one defendant she has sued.
She could not set up against him the malice of the committee members,
none of whom is party to the action. All the more so, she could not
set up the malice of only five out of 10 of them. Indeed, if the malice
of one is to be treated as the malice of all, she could set up the
malice of one only and hold all the rest liable, including the secretary. _,
That cannot be right."
And later the court comes to the conclusion that the assistant secretary
would not be liable because he was not malicious. The importance of
only finding the person liable who was in fact guilty of malice supports
the view that I have expressed above because if the company is responsible
it is as the employer of Mr. Fathers and that would mean that if sued _
personally Mr. Fathers would have to have been liable.
This brings me to the question of qualified privilege. Quite clearly
this was a case of qualified privilege because there was a duty on the part
of Fleming and Smith on the one hand and Mr. Fathers on the other to
make the communication. There was a duty on Mr. Fathers to receive
it from Fleming and Smith and on Mr. Rixon to receive it from Mr.
Fathers, so that the occasion (a) of the telephone call to Mr. Fathers and E
(b) of the passing of the paper to Mr. Rixon were both occasions of
qualified privilege and on the authority of the cases mentioned above the
privilege would apply also to the dictation to the typist.
There can be no question of malice on the part of Mr. Fathers. He
was dead and the onus of proving malice was on Mr. Riddick and no
attempt was made to prove malice against Mr. Fathers personally. Further p
it was clear as a matter of evidence that he did not even know Mr.
Riddick, he being at Purfleet and Mr. Riddick being at Workington.
Accordingly, if the case depends solely upon Mr. Fathers then the plea
of qualified privilege would succeed. In other words, if it is a question
solely of the vicarious liability of the company for the words spoken or
typed as a result of Mr. Fathers's dictation then the company would not
be liable. G
The plaintiff's pleading however alleges that Mr. Fathers was "in-
fected " by the malice of Fleming and Smith. If this were an action
against the company for publishing a libel to someone outside the com-
pany, it may well be that it would be possible to examine the conduct of
all its servants and if any of them were malicious to say that that would
defeat the question of qualified privilege. But that is not the case here JJ
because there was no publication outside the company. Indeed it may
well be that if it were coming from the company the question of qualified
privilege would be more difficult to establish.

909
1 Q.B. Riddick v. Thames Board Mills (C.A.) Waller L J.
. That being so there are two possibilities. One that the company is
directly responsible for the words spoken by Messrs. Fleming and Smith
if those words could be proved. In my view there are grave difficulties
about that as the proof of slander would require accurate proof of the
words spoken and would in the particular circumstances of this case require
proof of special damage because Mr. Riddick was no longer employed by
the company at this time.
B The only other way in which the company's plea of qualified privilege
could be defeated would be by making Messrs. Fleming and Smith the
authors of the libel. The judge in his summing up did not deal with these
particular problems, he simply directed the jury:
" What the plaintiff has to prove here, assuming you find he was
defamed in the April 16 document, is malice. So in this case although
C the occasion of the publication was privileged, if the plaintiff has
satisfied you that either Fleming or Smith or both were to their know-
ledge speaking dishonestly of the plaintiff, the plaintiff will have
proved malice."
The judge is assuming in that direction that Fleming or Smith, or both,
were responsible for that typewritten document. To consider whether or
D not there is evidence on which that could properly be said it is necessary
to look at the evidence which was given. It consists first of the first
paragraph of the document itself which reads:
"The following report arises from a conversation at your request
with John Fleming and Jim Smith at Workington by telephone on
April 16 concerning the Riddick case."
E
It then depends on the evidence actually given by Messrs. Fleming and
Smith. Smith said:
" (Q) When you were asked from head office to give some information
about the way and manner in which I had been dismissed, what did
you say to Mr. Fathers, Mr. Smith? (A) He asked for details of the
way you were dismissed, the action which we carried out from the
F shift engineer's office to the car park. Obviously I was going to give
the information because I was there."
In his evidence in chief he had said that Fathers did ring him on April 16
from Purfleet and requested:
" that I go over step by step the action we took from informing Mr.
Q Riddick in the shift engineer's office to his departure at the car park
by the security block. This I did step by step."
Mr. Fleming's recollection was that he heard part of the conversation
between Smith and Fathers and then spoke to Mr. Fathers about another
matter and Mr. Fathers then said " Would you do the same, or go through
the same procedure again on that particular incident and feel that you
JJ did the right thing " and I said " Yes." Bearing in mind that for slander
special damage would have to be proved one has to ask oneself if there
is sufficient evidence there to make either Smith or Fleming responsible
for the libel that was published. In my opinion there was not. There is

910
Waller LJ. Riddick v. Thames Board Mills (C.A.) [1977]
no suggestion anywhere that Mr. Fathers was going to make a written
report, he simply said he wanted them to go through step by step what
happened and no suggestion that it would be included in a written report.
Even if the step by step was to be in the written report there is no reason
for them to believe that any comment which they might have made, and
the jury must have come to the conclusion that they did make it, would
in fact be incorporated in a written document. I have come to the con-
clusion therefore that it is not possible to say that Fathers's publication to B
the typist or to Mr. Rixon can be said to have been " infected " by the
malice of Fleming or Smith. Mr. Fathers's communication had qualified
privilege and unless it was a libel published by Fleming and Smith that
privilege would not be defeated. In my opinion it is not possible to say
on the evidence here that that was a libel published by Fleming or Smith.
No doubt it would have been possible to say that there was evidence that _
they had slandered Riddick but there is no proof of any particular words
having been spoken. I have come to the conclusion therefore that the
plea of qualified privilege is a good one.
If I were wrong in saying that there was no evidence on which it
could be said that Fleming and Smith were knowingly responsible for the
libel, then I am of opinion that at the very least there should have been
a careful direction to the jury on this particular matter. D
The final argument put forward on behalf of the company is that to
allow this claim is an abuse of the process of the court. It is said that
it is of fundamental importance that discovery should not be interfered
with. In the earlier action between the plaintiff and the company the
document of April 16 was disclosed. It was disclosed as part of the
compulsory process whereby any relevant information has to be made p
available to the opposite side unless there is some ground of privilege
to protect it. The argument is that to allow such a: document to form
the basis of another claim is an abuse of the process of the court.
There is a useful statement of principle in a passage from the speech
of Lord Hailsham of St. Marylebone in the recent case of D. v. National
Society for the Prevention of Cruelty to Children [1977] 2 W.L.R. 201,
212, in the House of Lords on a rather different matter: F
" I start with the assumption that every court of law must begin
with a determination not as a general rule to permit either party
deliberately to withhold relevant and admissible evidence about the
matters in dispute. Every exception to this rule must run the risk
that because of the withholding of relevant facts justice between the
parties may not be achieved. Any attempt to withhold relevant Q
evidence therefore must be justified and requires to be jealously
scrutinised."
These words show the importance of not interfering with the disclosure.
The early authorities, e.g., Richardson v. Hastings (1844) 7 Beav. 354;
Hopkinson v. Lord Burghley (1867) L.R. 2 Ch.App. 447 and Reynolds v.
Godlee (1858) 4 K. & J. 88 show that discovery may be refused in an JJ
action" unless the opposite party gives an undertaking that the document
will not be used for any purpose other than the action then proceeding.
In Alterskye v. Scott [1948] 1 All E.R. 469 when the plaintiff applied

911
1 Q.B. Riddick v. Thames Board Mills (C.A.) Waller L J.
for a further and better affidavit of documents and the defendant con-
tended that he should not be required to file a further affidavit except on
an undertaking by the plaintiff not to use the documents for any collateral
or ulterior purpose, Jenkins J. held that the implied obligation which each
party was under to make no improper use of disclosed documents gave
sufficient protection and he refused to order the undertaking asked for.
He said, at p. 471:
B " Therefore, I do not propose to include any such undertaking in the
order for a further and better affidavit of documents. The defendant
must rely on the implied obligation not to make an improper use
of the documents. If he can substantiate improper use in any
particular case, he has his remedy. He can bring that instance of
alleged improper use before the court either on proceedings for con-
Q tempt, if he considers that it amounts to contempt of court, or on
proceedings to restrain the conduct complained of."
In Distillers Co. (Biochemicals) Ltd. v. Times Newspapers Ltd. [1975]
Q.B. 613 Distillers were seeking to prevent the publication of documents
disclosed in previous legal proceedings. Talbot J. in the course of a
careful judgment considered the relevant authorities including Alterskye v.
JJ Scott. He said, at p. 621:
" The plaintiffs claim an overriding protection from publication and
use of their documents which they were compelled to disclose in the
action against them. They claim that this protection involves those
into whose hands the documents come, particularly where the posses-
sion was unlawfully obtained. I do not doubt the correctness of this
proposition; I do not think that, on the authorities and for the proper
administration of justice, it can be argued to the contrary. Those who
disclose documents on discovery are entitled to the protection of the
court against any use of the documents otherwise than in the action
in which they are disclosed. I also consider that this protection can
be extended to prevent the use of the documents by any person into
whose hands they come unless it be directly connected with the action
F in which they are produced. I am further of the opinion that it is
a matter of importance to the public, and therefore of public interest,
that documents disclosed on discovery should not be permitted to be
put to improper use and that the court should give its protection in
the right case."
In D. v. National Society for the Prevention of Cruelty to Children
G [1977] 2 W.L.R. 201 Lord Simon of Glaisdale sets out a number of
examples of evidence which as a matter of public policy should be ex-
cluded from forensic scrutiny. He instances legal professional privilege,
" without prejudice " communications and others and says, at p. 221:
" . . . without attempting to be exhaustive I have tried to show that
there is a continuum of relevant evidence which may be excluded
JJ from the forensic scrutiny. This extends from that excluded in the
interest of the forensic process itself as an instrument of justice (for
example, evidence of propensity to commit crime), through that ex-
cluded for such and also for cognate interests (for example, legal

912
Waller LJ. Riddick v. Thames Board Mills (C.A.) [1977]
professional privilege), through again that excluded in order to facili-
tate the avoidance of forensic contestation (for example, 'without
prejudice' communications), to evidence excluded because its adduc-
tion might imperil the security of that civil society which the adminis-
tration of justice itself also subserves (for example, sources of police
information or state secrets)."
I would add the present case to this number. The interests of the proper
administration of justice require that there should be no disincentive to
full and frank discovery.
Although this court indicated that a claim might arise based on this
document dated April 16, 1969, the court was not called upon to consider
whether or not such action would be an abuse of the process of the court.
Indeed the fact that it was disclosed on discovery is not mentioned in
the judgments. In my opinion it is highly desirable that there should C
be no discouragement to full and frank disclosure on discovery. If there
be a risk that disclosures may produce new causes of action parties may be
deterred from disclosing the document.
I am of the opinion that to use this document, which had been com-
pulsorily disclosed in other proceedings, is an abuse of the process of the
court and it would be contrary to public policy to allow it to be used in ^
these proceedings.
For all the above reasons I would allow this appeal and give judgment
for the company.

Appeal allowed.
No order for costs in Court of Appeal
or below. E
Leave to appeal refused.
Solicitors: Stanleys & Simpson North.

A. H. B.