Defamation. Exemplary Damages

Editorial Committee of the Cambridge Law Journal

Defamation. Exemplary DamagesAuthor(s): Gillian WhiteSource: The Cambridge Law Journal, Vol. 23, No. 2 (Nov., 1965), pp. 206-210Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505032 .

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The Cambndge Law Journal The Cambndge Law Journal [1965] [1965] 206

an ordmary householder, having the normal telension set, could do so. The plaintiff's complaint wvas not concerned with znterference with domestic amenities, but with its business, which was exceptionally vulnerable to illterferexlce; it could not demand exceptional protection for its exceptionally sensitive business. There is com° pelling authority that " A man cannot increase the liability of his neighbour by applying his own property to special uses, whether for business or pleasure ": Eastern and South Af7wican Telegraph Co. Ltd. v. Cape Town Trarnways Co. Ltd. [1902] A.C. 381 at p. B93 (P.C.); Robinson v. Kilvert (1889) 41 Ch.D. 88. Two American decisions were adopted by Buckley J. The first was Amphitheatres Inc. v. Po7ttland Aleadows (1948) 198 P. 2d 847 (noted in 62 Harv.L.R. 704), a decision of the Supreme Collrt of Oregon. The plaintiX owned an out-of-door cinema; the defendant had floodlights on their adjoining racecour:;e which made it impossible for the films to be seen by the audience. Neither business had a superior social utility. The plaintiff's claim in nuisance failed on account of the sensitive character of their o business. The second was Philltppsy v. Pacific Power * Light Co. (1922) 207 P. 957, where the Supreme Court of WashingtorB refused relief to the plamtiff, whose telegraph line was adversely affected by the defendants' overhead power line Here the trouble could have been cured by the plaintiff by adding a return line to complete the circliit. No reference was made to the Canadian case of Noyes s. FIuron * Erie Afortgage Corp. [1982] 8 D.L.R. 143, where the defendants by floodlighting their building interfered with the plaintiff's business of advertising by illuminated signs " a bussess of unusual and sensitive nature." The plailltiff was unsuccessful in his claims under Rylands v. Fletcher and in nuisance.

However, as Buckley J. observed, the plailltiff could not be said to be without a possible remedy since Part II of the Wireless Telegraphy Act, 1949, empowered the Postmaster-General to make regulations relating to possible sources of interfereIlce with wireless telegraphy.

1'. ELLIS LEWIS.

DEFAMATION- EXEMPLARY DAMA(SES THE passage in Lord Deslin's judgment in Itookes v. Barnard [1964] A.C. 1129 which enunciates the principles governing the award of exemplary damages, a passage which, as Professor Hamson points out iIl his note on the case ([1964] C.L.J. 159 at p. 176), is in fact a judgment " per curiam per Lord Devlin," has borne fruit in three recent actions in defamation. We can now review the prac- tical application in three suits agaiDst newspaper publishers of the

206

an ordmary householder, having the normal telension set, could do so. The plaintiff's complaint wvas not concerned with znterference with domestic amenities, but with its business, which was exceptionally vulnerable to illterferexlce; it could not demand exceptional protection for its exceptionally sensitive business. There is com° pelling authority that " A man cannot increase the liability of his neighbour by applying his own property to special uses, whether for business or pleasure ": Eastern and South Af7wican Telegraph Co. Ltd. v. Cape Town Trarnways Co. Ltd. [1902] A.C. 381 at p. B93 (P.C.); Robinson v. Kilvert (1889) 41 Ch.D. 88. Two American decisions were adopted by Buckley J. The first was Amphitheatres Inc. v. Po7ttland Aleadows (1948) 198 P. 2d 847 (noted in 62 Harv.L.R. 704), a decision of the Supreme Collrt of Oregon. The plaintiX owned an out-of-door cinema; the defendant had floodlights on their adjoining racecour:;e which made it impossible for the films to be seen by the audience. Neither business had a superior social utility. The plaintiff's claim in nuisance failed on account of the sensitive character of their o business. The second was Philltppsy v. Pacific Power * Light Co. (1922) 207 P. 957, where the Supreme Court of WashingtorB refused relief to the plamtiff, whose telegraph line was adversely affected by the defendants' overhead power line Here the trouble could have been cured by the plaintiff by adding a return line to complete the circliit. No reference was made to the Canadian case of Noyes s. FIuron * Erie Afortgage Corp. [1982] 8 D.L.R. 143, where the defendants by floodlighting their building interfered with the plaintiff's business of advertising by illuminated signs " a bussess of unusual and sensitive nature." The plailltiff was unsuccessful in his claims under Rylands v. Fletcher and in nuisance.

However, as Buckley J. observed, the plailltiff could not be said to be without a possible remedy since Part II of the Wireless Telegraphy Act, 1949, empowered the Postmaster-General to make regulations relating to possible sources of interfereIlce with wireless telegraphy.

1'. ELLIS LEWIS.

DEFAMATION- EXEMPLARY DAMA(SES THE passage in Lord Deslin's judgment in Itookes v. Barnard [1964] A.C. 1129 which enunciates the principles governing the award of exemplary damages, a passage which, as Professor Hamson points out iIl his note on the case ([1964] C.L.J. 159 at p. 176), is in fact a judgment " per curiam per Lord Devlin," has borne fruit in three recent actions in defamation. We can now review the prac- tical application in three suits agaiDst newspaper publishers of the



C.L.J. Case and Comment

prmciple that " one man should not be allowed to sell another man's 207

reputation fcor a profit. Where a defendant with a cynical disregard

for a plaintift's rights has caIculated that the money to be made out

of his wrongdoing will probably exceed the damages swt risk, it is

necessary for the law to show that it cannot be broken with

impunity " ([1964] A.C. 1129 at p. 1227). In both McCarey v Associated Newspapers Ltd. (No. 2) [1965]

2 W.L.R. 45 and Broadway Approvals Ltd. v. Odhams Press Ltd.

[l965] 1 W.L.R. 805, the Court of Appeal ordered a new trial on

the ground that excessive and erroneous amounts of damages had

been awarded by the respectitre juries at first instance. In {Ianson

v Associated Newspapers Ltd. [1965] 1 W.L.R. 1088, Widgery J.

directed the jury that they ght consider awarding exemplal y

damages only if they were driven to infer that the article (which

allegedly comlected the plaiIltiff with the " great " train robbery)

had been published by the defendants " coIlscious of the fact that

it had no solid foundation and with the cynical and calculated

interltioIl to use it for what it was worth, on the footlng that it

would produce more profit than any possible penalty in damages "

(p. 1041). The jllry found for the plaintiff but declined to award

exemplary damages. There were four defendants ill McCarey's casc-all newspaper

publishers. The defamatory material was contained in reports of an

inquest on a hospital patient who had died after an accidelltal

injection by the plaintiff, a radiologist, of surgical spirit instead of

sa)ine. The coroner recorded a verdict of misadventure, and said

there had been no criminal negligence. The plaint;ff alleged that

passages in the reports, published in two national newspapers and

two local paperss suggested that he had tried to shift responsibility

for the death onto someone else, that the coroner had rebuked him

for this, and that he had had to be cross-exaed by t}ee coroner

before admitting any responsibility ill the matter. Thompson J

directed the jury that the amount of damages was " at large,"

and that they might consider this to be a case ln which, even on the

plaintiff's version of events, confusion and error in reporting had

occurred with no deliberate imtent to harm the doctor's reputation.

Thompson J., trymg the action iIl April 1964, was not referred

to the House of Lords judgment of January 1964 in Rookes s.

Barnard. The jury found for the plaintiff and awarded a total sum of

£9,000, dilrided unequally among the four defendants £2,000 and

£3,000 against the national dailies and £1,500 and £2nS00 against

the local papers, respectively. The defendants appealed on the

issue of damages alone.



208 The Cambridge Law Journal tl965]

The Court of Appeal reaffiirmed the mitial principle that the jury's verdict upon damages should not be set aside uniess the court considers the sum awarded so excessive that no twelve men could reasonab]y have given it. Pearson LJ. in the leading judgment then cited Youssoupofl v. M.G.M. Pictures Ltd. (1984) 50 T.L.R. 581 and Lewis v. Daily Telegraph Ltd. [l96B] 1 Q.B. 840 as sc illustrative of what was tbe prevailil}g view, even up to 1963- that punstive or exemplary damages could properly be awarded "

in libel cases. What then is the effect of Rookes v. Barnard P

Put shortly, it is that a clear distinction must be drawn between compensatory and punitive damages; and that punitive (or exemplary) damages ought to be avarded sn only two categories of cases, namely, oppressive, arbitrary or unconstitutional acts by govern- ment servants, and cases where the defendant's conduct had been deliberately calculated by him to make a profit which be anticipated would exceed any compensation payable to the plaintiS. Libel cases might be found within the second category, but the instant case was not among them. Pearson L.J. and Diplock L.J agreed in finding oIlly the injury to the plaintifl's professional honour and

the natural grief he had suBered as compensable elements. There was no evidence of pecuniary loss or of " social damage." Nor was there any elemeIxt of deliberate insult by the defendants which wouId

serve as a ground for aggravated damages (a head of award which

should be quite distinct from esemplary damages). No case had

been made out for an award of exemplary damages under Lord

Devlill's second category. Diplock L.J. was careful to underline (at p. 62) that this principle

of preventing tbe defendant from obtaining a reward for his wrongdoing is based upon public policy and not upon the reparation of private wrongs. The plaintiff is the fortunate but fortuitous bene-

ficiary of the prsciple. In arriving at the conclusion that a total of £9,000 was an

unreasonably high sum of compensatory damages, lliplock L.J. referred to the size of awards for physical iniury, statillg (p. 64) that

it was not just that " in equating incommensurables when a man's

reputation has been injured the scale of values to be applied bears

no relation whatever to the scale of values to be applied when

equatiIlg those other i}lcommensurables, money and physical injur- ies." Were the law to be more jealous of a man's reputatioll than

of his life or limb, it would be ginng effect to " the values of the

duel." A similar approach was followed by Sellers L.J. in Broadway

Approvals Ltd. v. Odhams Press Ltd. An article published in



C.L.J. Case and Cornment 209

The People drew attention to the bussess practices of a stamp

company which had issued somewhat misleading advertisemerlts

directed to iuvenile collectors with the apparent. aim of inducing

them or tbeir parents to accept axld pay for larger and more expen-

sive packets of stamps than those featured ill a " bargam offer.'

The jury awarded £5,000 to the plaintiff company and £10,000

to the managing director. The Court of Appeal ordered a new trial

on the grods of an inadequate direction on the issue of malice,

a misdirection on fair comment Sa excessive damages. Space does

not permit an examination here of the first two grounds. On

damages, the court foHowed and applied the principles of Rookes v.

Barnard and lMcCarey's case. The jlldge's statement to the jury

that there was a punitive aspect in damages, a:nd some of the

directions which followed this statement had departed from these

prmciples. It was now established that compensatory damages

was the norm, and exemplary damages should ouly be awarded

where the defendant profited from his own wrong (at p. 819).

Moreover, the peculiar position of Ilewspaper publishers and pro-

prietors whose normal business it is to publish news and comment

for profit had to be recognised. The House of Lords in Rookes

could not be taken to mean that newspapers would ipso facto be at

greater risk than any other category of defendant. Before any

defendant could be liable for exemplary damages a more direct

pecuniary benefit must be shown. Davies L.J. suggested (p. 822)

that endence of an intentioIl to make a specific profit from the

publIcation of the item complaiTled of would be reqliired.

On the basis of compensation, the Court of Appeal held that the

amounts awarded were extravagant. They bore no relation either

to sums awarded for physical injury if the director had lost a leg,

Sellers L.J. estimated tbat he would not have received more than

about £5s000r to the amount of fines imposed by the crimiIlal

courts for oSences far more grievous than a criticism of a method

of trading. The analogy between physical injury and injury to

reputation might well be a belpful guide to the jury which could

be indicated by the judge in appropriate cases. But a venture

into the scale of fines for criminal offences as a possible comparative

yardstick appears to be a new departure of limited utility. The

fact that the crimmal statutes prescribe a variety of penalties which

frequently o;re more to historical consideratioIls than to any

attempted weighung of the shades of gravity iIl different offences

must collstitute a serious obstacle to the use of ies as a giide to * * * . l

< .amages 1ll ClVl . aCtlOnS.

While the legal profession will probably welcome the clarifica-

tion which Lord Oevlin's exposition of this branch of the law of



The Cambndge Law Journal The Cambndge Law Journal 210 210 Clo65] Clo65]

damages has achieved, the publishers and proprietors of newspapers would be over-sange if they were to ant.icipate a marked diminution in the financial risk attaching to defamatory material. The Court of Appeal still starts from the principle that a jury's verdict is not lightly to be set aside, and there remains considerable scope for awardng large sums on the compensatory basis in any case presenting grounds for aggrarrated damages.

GTLLIAN WHITE.

COVENANT8 AFFECTING LAND THE decision of Stamp J. in the Great Aintree SellixIg Handicap (otherwise knowIl as Sefton s. Tophams Ltd. [lDG4] 1 W.L.R 1408, noted ante, p. B8) has now come under the scrutiny of the Court of Appeal [1965] B W.L.R. 528, and the result is a victory by a short head for Lord Sefton.

It will be recalled that when Tophams Ltd. (hereafter called Tophams), of whom Mrs. Topham was " the presiding genius " (per IIarman L.J.), bought from Earl Sefton the freehold of Aintree Racecourse, they covenanted, inter alia not to cause or permit the use of the land for any purpose other than horseraciIlg (and certam other purposes), at least, during the lifetime of Inrd Sefton. Tophams had agreed to sell the land to Capital and Counties Property Company Ltd. (hereafter called Capital) for £900,000. Capital intended to develop the land as a howsing estate. Earl Sefton retained no land in the ncinity, and so could not, on normal equitable prmciples, enforce the covenant agarust a purchaser from Tophams. Stamp J., however, granted injunctions against both Tophams and Capital; he held that if Tophams were to convey the land to Capital they would be iIl breach of their covenant, and that Capital would be guilty of the tort of inducing a breach of covenant

In the Court of Appeal two main pOiIltS were taken: (i) Construction of the covenant By a majority (Sellers and

Harman L.JJ., Russell L.J. dissenting), the Court of Appeal were of opinion that a conveyance by Tophams to Capital would amount, so far as Tophams were concerned, to cc permittiIlg ' use for some purpose other than horseracing and the other permitted uses. Therefore, an mjunction should be granted against Tophams, to restrain them from causing or permitting the use of the land for some purpose other than the permitted purposes. Sellers L.J. said: sc I am of opinion that a conveyance of the land by Tophams . . . would be permitting the use of the land in a manner contrary to that to which they bound themselves during the Efetime of Lord

damages has achieved, the publishers and proprietors of newspapers would be over-sange if they were to ant.icipate a marked diminution in the financial risk attaching to defamatory material. The Court of Appeal still starts from the principle that a jury's verdict is not lightly to be set aside, and there remains considerable scope for awardng large sums on the compensatory basis in any case presenting grounds for aggrarrated damages.

GTLLIAN WHITE.

COVENANT8 AFFECTING LAND THE decision of Stamp J. in the Great Aintree SellixIg Handicap (otherwise knowIl as Sefton s. Tophams Ltd. [lDG4] 1 W.L.R 1408, noted ante, p. B8) has now come under the scrutiny of the Court of Appeal [1965] B W.L.R. 528, and the result is a victory by a short head for Lord Sefton.

It will be recalled that when Tophams Ltd. (hereafter called Tophams), of whom Mrs. Topham was " the presiding genius " (per IIarman L.J.), bought from Earl Sefton the freehold of Aintree Racecourse, they covenanted, inter alia not to cause or permit the use of the land for any purpose other than horseraciIlg (and certam other purposes), at least, during the lifetime of Inrd Sefton. Tophams had agreed to sell the land to Capital and Counties Property Company Ltd. (hereafter called Capital) for £900,000. Capital intended to develop the land as a howsing estate. Earl Sefton retained no land in the ncinity, and so could not, on normal equitable prmciples, enforce the covenant agarust a purchaser from Tophams. Stamp J., however, granted injunctions against both Tophams and Capital; he held that if Tophams were to convey the land to Capital they would be iIl breach of their covenant, and that Capital would be guilty of the tort of inducing a breach of covenant

In the Court of Appeal two main pOiIltS were taken: (i) Construction of the covenant By a majority (Sellers and

Harman L.JJ., Russell L.J. dissenting), the Court of Appeal were of opinion that a conveyance by Tophams to Capital would amount, so far as Tophams were concerned, to cc permittiIlg ' use for some purpose other than horseracing and the other permitted uses. Therefore, an mjunction should be granted against Tophams, to restrain them from causing or permitting the use of the land for some purpose other than the permitted purposes. Sellers L.J. said: sc I am of opinion that a conveyance of the land by Tophams . . . would be permitting the use of the land in a manner contrary to that to which they bound themselves during the Efetime of Lord



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Defamation. Exemplary Damages