Editorial Committee of the Cambridge Law Journal

"Better the Devil You Know..." Precedent in the House of Lords. Tort. Libel. ExemplaryDamagesAuthor(s): David FlemingSource: The Cambridge Law Journal, Vol. 30, No. 2, 1972(A) (Nov., 1972), pp. 232-238Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4505563 .

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232 The Cambridge Law Joarnal [1972A]

" BETTER THE DEVIL YOU KNOW . . . "

PRECEDENT 1N THE HOUSE OF LORDS TORT LIBEL EXEMPLARY DAMAGES

IN three recent House of Lords cases involving review of past decisions of the House their Lordships failed to reach unanimity. Not surprisingly there have been mutterings about " certainty " being " eroded"; one has been expecting tllis since the Practice Statesnent [1966] 1 W.L.R. 1234 there are always those who expect the horse to bolt the moment the stable door is ajar. Admittedly, division among their Lordships enhances the impression of uncertainty and certainty in the law is a totem to which men cling with great fervour, but differences of opinion may express " honest intellectual differ- ences" (Blom-Cooper and Drewry, Final Appeal. p. 89).

In Jones v. Secretary of State or Social Services [1972] 2 W.L.R. 210 their Lordships were asked to reconsider their decision in Minister of Social Security v. Amalgamated Engineering Union (Re Dowling) [1967] 1 A.C. 725 where it had been held that a finding by an insurance officer (or by an appeal trxbunal) that an insured person had suffered " personal injury caused . . . by accident arising out of and in the course of his employment . . ." (s. 7 (1) (a) of the National Insurance (Industrial Injuries) Act 1946; see now s. 5 (1) (a) of the National Insurance (Industrial Injuries) Act 1965) and was therefore entitled to " injury benefit" was binding on a medical board hearing the same person's claim for " disablement benefit."

The appellant Jones was awarded injury benefit on appeal to his local appeal tribunal for myocardial infarction (a morbid condi- tion of the tissues of the heart resulting from obstruction of the circulation) supposedly caused by Iifting a heavy piece of scrap metal at work. In due course he claimed disablement benefit but the medical board (upheld by a medical appeal tribunal) determIned that he had suffered only a strained chest as the result of lifttng the scrap.

In upholding a refusal to grant certiorari to quash the decision of the National Insurance Commissioner that the determination was not erroneous in point of law the Court of Appeal distinguished Dowling's case, but their Lordships were unanimous in holdtng that Jones case (and the conjoined appeal of one Hudson) were not distinguishable from the leading case.

A majority (Viscount Dilhorne, Lords Diplock, Wilberforce and Simon of Glaisdale) thought the Dowling decision wrong, but Lord Simon joined the minority (Lords Reid, Pearson and Morris of Borth-y-Gest) in holding that it should not be overruled. Their Lord- ships expressed some doubt whether decisions on points of statutory

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233 C.L.J. Cases and Comment

interpretation (see, e.g., per Lord Reids p. 215; per Lord Simon, p. 269 and in Knuller Ltd. v. D.P.P. [1972] 3 W.L.R. 143, 179; cf. per Viscount Dilhorne, p. 240) or recent decisions should be overruled (per Lord Reid, p. 215; cf. per Viscount Dilhorne, p. 240). But, because of the position Lord Simon took, his speech is the most instructive.

His Lordship thought that since Parliament had neglected two opportunities to deal with the point the Minister should not ask the House to step in (p. 270; contra per Lord Diplock, p. 260). Noting that the Practice Sfatement expressed the possibility that the following of precedent might lead to injustice, his Lordship said that as far as he could judge, medical opinion was now moving in favour of the view that exertion could cause myocardial infarction It would, therefore, be unfair to the appellants to overrule Dowling's case (p. 270; see also per Viscount Dilhorne, p. 241). Moreover his Lordship expressed concern as to the possible effect on cases decided in the light of Dowling's case. In short, to follow precedent would minimise the possibility of injustice; a more lnappropriate case for exercising the power could hardly be imagined.

However, it is interesting to speculate as to what attitude their Lordships, and particularly Lord Simon, would take to a similar case arising after the date of the present decision and involving a less meritorious claimant. Presumably, such a case would be dealt with on the basis that the Dowling decision was right (see, e.g., per Lord Diplock, p. 261). Yet Lord Simon commented that ". ^ . if the matter were res integra, I would presume to put a different construc- tion on the Act than that which commended itself to the majority of the House in Dowling's case" (p. 268).

For Lord Simon, at least. the ball is in Parliament's court; but although there is no dispute about the justice of the decision, the value of Jones' case as precedent may well be more limited than cursory inspection might suggest, a conclusion supported by Lord Simon's view (pp. 270-271) that prospective overruling would have been the best way to deal with the problem.

The appellants in Knuller Ltd. v. D.PP, (noted, ante), who published a newspaper containing a personal column for male homosexuals, were convicted of (inter alia) conspiring to corrupt public morals. On appeal it was argued that their Lordships sllould overrule the decision of the House in Shaw v. D.P.P. [1962] A.C. 220 that conspiracy to corrupt public morals was an offence at common law.

Lord Diplock alone was in favour of overruling Shaw; aIthough their Lordships stated, per curiam, that the courts possess no general or residual power to create new criminal otTences, his Lordship

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234 The CaJnbridge Law JournRI [1972A]

thought that the House had done just that in Shaw's case (p. 170; see also per Lord Reid, dissenting, in Shaw, p. 276), and that the House ought to correct ". . . an unfortunate mistake as to the common law . . ." (p. 171). One might compare this notion of eradicating error before it takes root with, for example, the simiIar statement of Rliscount Dilhorne in the Jones case ([1972] 2 W.L.R. 210, 240), and the apparently contrary view of Lord Reid in the same case (p. 215).

On the other hand, desplte his dissent in the Shaw case Lord Reid did not think that the decision should be overruled, believing ". . . the law with regard to the punishment of immoral acts . . .' (p. 147) to be the sole provence of Parliament (see also per Lord Simon p. 179).

Lord Simon thought it unnecessary . . L to express any opinion whether the decision in Shaw's case was (in an abstract judicial sense) " correct in law " or as to its desirability. In my view, the appeal turns on how far your Lordships are justified in altering the law as previously established (p. 174).

Pointing out that s; It was not contended that the rule had led to any injustice' (p. 178), his Lordship said that what the courts could do, as was laid down in Shanw, was to apply established offences to new circumstances (p 180).

In the Practice Statement their Lordships stated that they would bear in mind ". . . the especial need for certainty as to the criminal law." Lord Reid referred to this as one reason for not overruling Shawws case (p. 147); but Lord Simon devoted three pages to elucidating the meaning of this phrase. His view was that the absence of that certainty enabling one to tell in advance whether given facts will have a certain legal result was ". . . so characteristic a feature of English law that examples, even though drawn from many differ- ent spheres of jurispmdence, give an inadequate impression of how pervasive it is" (p 177). He concluded that ". . . those who choose, in such situations, to sail as close as possible to the wind inevitably run some risk" (p. 178; ct. per Lord Diplock p. 170, and per Lord Reid in Shaw pp. 281-282).

But despite his Lordship's protestation (p. 174) t}le divorce between the question of the rightness of the Shaw decision and the question of whether it should be ovenuled cannot be maintained. It is most unlikely that his Lordship's view as to whether Shaw's case was correctly decided did not influence significantly wllat he had to say about precedent generally, not least because it would have been manifestly unjust to uphoId the conviction had it been agreed that the precedent and admittedly indistinguishable case was wrong.

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C.L.J. Cases and Comment LJJ

(See furtller, Blom-Cooper and Drewry, Final Appeal, pp. 71-72.) Had Lord Simon thought Shaw wrong there would have been a majority for that view; surely then the Practice Statement would have been reIied on-wishful thinking?

Irl Cassell and Co. Ltd. v. Broome 11972] 2 W.L.R. 645 the jury awarded the respondent £15,000 compensatory and £25,000 exeme plary damages for libel against the appellants and Mr. David Irving, the publishers and author of The Destruction of Convoy PQ17 in which the libels were contained.

On appeal it was contended, inter alia, that the judge's direction on exemplary damages had not complied with the requirements set out by the Hollse of Lords in Rookes v. Barnard [1964] A.C. 1129. As Lord Hailsham L.C. put it, the Court of Appeal ". . . took a somewhat unusual course...." (p. 651). The appeal was dismissed; the direction to the jury was thought adequate; the award was not considered excessive; but it was forcefully stated that Rookes v. Barnard had been decided per incuriam on the issue of exemplary damages, having been decided svithout argument of counsel and in disregard of two previolls and inconsistent decisions of the House. Further it was said, per curiams that Rookes v. Bsrnard was unwork- able and that puisne judges should direct juries according to the law prior to that decision until the House had reconsidered the question.

The Lord Chancellor rightly thought it indefensibIe that the parties had been forced to spend money discussing issues irrelevant to their dispute (p. 653; see Ca*sell anff Co. Ltdv v. Broome (No. 2) [1972] 2 W.L.R. 1214 on costs). Turning to the instruction to ignore Rookes v. Barnard, his Lordship said that it wolIld have forced

. . pulsne Juc ges

. . . to take sides in an unedifying dispute between the Court of Appeal . . . and the House of Lords. But, much worse than this, litigants would not have known where they stood . . . chaos would have reigned until the dispute was settled ands in legal matters, some degree of certainty is at least as valuable a part of justice as perfection (p. 653).

It seems that this is unanswerable in the context of the present case; but would chaos have reigned? Professor Goodhart remarks: " Such cases would arise only rarely so that the danger of ' chaos ' would be exceedingly unlikely in the law" ((1972) 88 L.Q.R. 305, 310). Nevertheless, for the Court of Appeal to disapprove a decision of the House of Lords in this fashion would force either the disgruntled party (or some future litigant) to ask the House of Lords for a final decision. One thing is clear, Cassell v. Broome was hardly an appropriate occasion for so doing. As his Lordship noted, the last

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236 The Cambridge low Journal [ 1972A]

sentence of the Practice Statement reads: " This announcement is not intended to affect the use of precedent elsewhere than in this House." The main part of the appeal was taken up with their Lordships' analyses of what Lord Devlin said about exemplary damages in Rookes v. Barnard (pp. 1221-1231). The theory is clear, probably deceptively so. 1n cases where damages are at large (i.e., where it is impossible to calculate exactly what the plaintiff has lost) the jury or judge may take into account the defendant's motives and conduct if they have aggravated the 3njury, and may increase the award. Such damages are compensatory and differ from exemplary or punitive damages which are awarded to punish and to deter the defendant.

The real fuss is about the desirability and/or the desirable limits of exemplary damages (see, e.g., per Lord Diplock, p. 720). Lord Devlin's method of dealing with this ' anomaly " (Rookes v. Barnard at p. 1221) was to limit the availability of exemplary damages to three classes of cases which were said to be: first, oppressive action by government servants; secondly, situations where the defendant calcu- lated to make a profit from his wrong-doing which might exceed -compensation payable to the injured party, and, thirdly, where such awards were authorised by statute. Remarking that " Aggravated damages in this type of case can do most, if not all, of the work that could be done by exemplary damages" (p. 1230), Lord Devlin made it clear that he objected to what he obviously regarded as the intrusion of a penal element into civil proceedings and it was, therefore, his belief that awards should not be allowed simply because the defendant had behaved out- rageously.

Two points at once occur, both made by Lord Wilberforce. Though his Lordship thought that the opponents of exemplary damages had ". . . marginally, the best of it in logic . . ." (p. 709) he said that it was by no means certain that the sole function of damages in the English law of tort was compensation. Where damages were at large, ". . . if one says that a plaintiS is given compensation because he has been injured one is really denying the word its true meaning . . .9' (p. 708). It could not be taken for granted that there was something ". . . inappropriate or illogical or anomalous (a question-begging word) in incIuding a punitive element in civil damages . . ." (p. 709). English law may have been " wiser than it knew" in not committing itself to any such theory. His Lordship also saw that: . . . if " aggravated damages " are " to do the work of punitive damages'9 and if it is to be supposed that juries, or judges. will

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C.L.J. 237 Cases and Com/?1ent

continue giving damages much as before, then nothing has been

gained by changing the label and we are indulging in make

belief and encouraging fictional pleading (p. 715).

But, as Lord Devlin saw, the danger is of excessive awards resulting

from counting the same conduct twice, once as aggravation and

again for the purpose of adding a penalty or fine. His Lordship

Elad said that juries should be told that they could award exemplary

damages in appropriate cases if, and only if, the sum they intended

to award as compensation (including aggravation) was inadequate to

punish and deter the defendant (p. 1228). Since compensation may

include aggravation, the same conduct may be counted for two

different purposes and it is here that the distinction that Lord Devlin

sought to draw between aggravated and exemplary damages causes

problems (see, e.g. per Windeyer J. in Uren v. John FairfaJc and

Son Pty. Ltd. (1967) 117 C.L.R. 118, 152 cited by Lord Wilberforce,

p. 710). Lord Wilberforce (p. 712) and Viscount Dilhorne (e.g., pp.

701-702) thought that the application of Rookes v. Barnard to the

present case had resulted in " double counting," which they believed

to have been expressly disapproved by Lord Atkin in Ley v. Hamil-

tun (1935) 153 L.T. 384 (H.L.). The majority did not agree: tlzey thought, first, that Lord Devlin

had been right to treat the earlier decisions of the Houses including

Ley v. fIamilton, as instances of aggravated damages (ste, e.g., per

Lord Reid at p. 689); secondly, though, for example, the Lord

Chancellor thought the trial judge's direction ". . . only barely

sufficient . . ." (p. 660), and admitted to having speculated as to the

possibility of " double counting " having taken place (p. 670), they

refused to hold that no reasonable jury could have arrived at the

figure of £40,000 (see, e.g. per Lord Hailsham L.C. at pp. 663-665).

Moreover the majority seemed to agree with Lord Diplock that

Lord Devlin had ". . . brought some order out of chaos, some light

and reason into what was previously a dark and emotive branch of

the common law" (p. 720!. Yet both Lord Wilberforce, whose

antipathy towards exemplary damages has already been Iloted, and

Viscount Dilhorne, who thought Lord Devlin had drawn the cate-

gories too naxTowly, restricting the power to make awards in a way

only Parliament could legitimate]y do (p. 702), preferred the law

prxor to Rookes v. Barnard which was, in I>ord Wilberforce's view

". . . in substance, although not perhaps philosophically or lingulsti-

cally . . . clear . . ." (p. 711). As the Lord Chancellor earlier remarked, the real difficulty lies

in ". . . working a system of punitilre damages alongside the system

of aggravated and compensatory damage" (p. 674) because, in his

vlew, ". . . the thinking underlying the two systems is as incompatible

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238 238 [1972A] [1972A] The Cambridge Law Journal The Cambridge Law Journal

as oil and vinegar . . ." (p. 675). Despite Lord Reid's protestations that it is not the function of the judges ". . . to frame definitions or to lay down hard and fast rules" (p. 681) one cannot but agree with him when he says: " But I suppose that those of us who merely concurred with him [Lord Devlin] ought to have foreseen that this might happen and to have taken steps to prevent it" (p. 682).

Despite recent criticisms of assenting judgments (e.g., Blom- Cooper and Drewry, Final Appeal, pp. 90-95) there may be some- thing to be said for his Lordship's espousal of them in cases like Rookes v. Barnard (p. 681; see also his Lordship's speech in Saunders v. Anglia Building Society [1971] A.C. 1004, 1015).

I)AVID FLEMING.

LOCAL AUTHORITY V. CR1TICAL RATEPAYER-A SU2T IN DEFAMATION

IT'S a free country, is it? A man says that hls local council is behaving in a dictatorial and undemocratic manner. He is tried for it, fined £32,000 and threatened with imprisonment if he ever says such a thing again. It couldn't happen? It did happen, in England, in 1972. Or very nearly. Bognor Regis U.D.C. v. Campion [1972] 2 W.L.R. 983 was a private suit in defamation, so it wasn't a prosecution (or there would 02ave been a jury), and it wasn't a fine exactly (or Mr. Campion, who could not give security for costs, would have been able to appeal), and instead of being convicted he will just be bankrupted for damages of £2,000 and costs of perhaps £30,000. Terms and technicalities apart, however, the matter is as stated. In effect it is a gross invasion of civil liberties and in method it is a serious reproach to English law. It may be instruc- tive to consider first the legal result and secondly the factuaI back- ground; this will be at somewhat greater length than is usual in a

case-note, for there is not often such a bad case. The narrow legal question- the only point on which the long

judgment of Browne J. is reported --was whether a locaI council can sue " in defamation." A Divisional Court of the Queen's Bench in 1891 held that it could not, unless the libel reRected on its property (Manchester Corpn. v. Williams [1891] 1 Q.B. 94) but t}}ree years later the Court of Appeal held that a trading company could

sue without proving any loss (South Hetton Coal Co. v. North-

Eastern News Association [18941 1 Q.B. 133) and the same has since been held of trade unions (Willis v. Brooks [1947] 1 AII E.R. 191). Browne J. took the later decisions to have eclipsed the earlier one. This is unfortunate because the Court of Appeal was wrong to hold that a trading company could sue"in defamation"; it was

as oil and vinegar . . ." (p. 675). Despite Lord Reid's protestations that it is not the function of the judges ". . . to frame definitions or to lay down hard and fast rules" (p. 681) one cannot but agree with him when he says: " But I suppose that those of us who merely concurred with him [Lord Devlin] ought to have foreseen that this might happen and to have taken steps to prevent it" (p. 682).

Despite recent criticisms of assenting judgments (e.g., Blom- Cooper and Drewry, Final Appeal, pp. 90-95) there may be some- thing to be said for his Lordship's espousal of them in cases like Rookes v. Barnard (p. 681; see also his Lordship's speech in Saunders v. Anglia Building Society [1971] A.C. 1004, 1015).

I)AVID FLEMING.

LOCAL AUTHORITY V. CR1TICAL RATEPAYER-A SU2T IN DEFAMATION

IT'S a free country, is it? A man says that hls local council is behaving in a dictatorial and undemocratic manner. He is tried for it, fined £32,000 and threatened with imprisonment if he ever says such a thing again. It couldn't happen? It did happen, in England, in 1972. Or very nearly. Bognor Regis U.D.C. v. Campion [1972] 2 W.L.R. 983 was a private suit in defamation, so it wasn't a prosecution (or there would 02ave been a jury), and it wasn't a fine exactly (or Mr. Campion, who could not give security for costs, would have been able to appeal), and instead of being convicted he will just be bankrupted for damages of £2,000 and costs of perhaps £30,000. Terms and technicalities apart, however, the matter is as stated. In effect it is a gross invasion of civil liberties and in method it is a serious reproach to English law. It may be instruc- tive to consider first the legal result and secondly the factuaI back- ground; this will be at somewhat greater length than is usual in a

case-note, for there is not often such a bad case. The narrow legal question- the only point on which the long

judgment of Browne J. is reported --was whether a locaI council can sue " in defamation." A Divisional Court of the Queen's Bench in 1891 held that it could not, unless the libel reRected on its property (Manchester Corpn. v. Williams [1891] 1 Q.B. 94) but t}}ree years later the Court of Appeal held that a trading company could

sue without proving any loss (South Hetton Coal Co. v. North-

Eastern News Association [18941 1 Q.B. 133) and the same has since been held of trade unions (Willis v. Brooks [1947] 1 AII E.R. 191). Browne J. took the later decisions to have eclipsed the earlier one. This is unfortunate because the Court of Appeal was wrong to hold that a trading company could sue"in defamation"; it was

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