I beg to move in page 3. line 24, to leave out Clause 5.
Just before we concluded our last debate on this Bill we were considering Clause 5, which deals with justification. It is very short and I think it would be for the convenience of the House if I read it first. It provides that
In an action for libel or slander in respect of words containing two or more distinct charges against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved, if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
This Clause was discussed on Second Reading, and it was also discussed very fully in the Committee stage. I suggested on the Second Reading that this Clause should be omitted; I opposed its inclusion in the Bill on the Committee stage, and I am now moving that it should be excluded from the Bill.
I mentioned, on Second Reading, those parts of the Bill which seemed to me to raise substantial questions of importance which should be considered by the sponsors of the Bill before we arrived at the Committee stage so that everybody would have adequate notice of the attitude that would be adopted in the Committee stage. In Committee after a very full discussion, the inclusion of the Clause was carried by nine votes to eight, by a majority of one vote, and I am sure that everybody, whether in support of it or opposed to it, recognises that here there is a substantial question which deserves full consideration, and even though it is accepted by this House I trust that when it goes elsewhere it will have further full consideration, too.
The Clause deals with separate charges and, therefore, it deals with a position where an action can be brought in respect of the separate charges. I am now repeating the argument which I have already put forward on two other occasions and which I am rather tired of repeating. I shall, therefore, try to keep it within as compact an ambit as I possibly can. Those who are interested in the Bill must by this time be extremely familiar with the argument, and I do not propose to rub it in at undue length.
The argument is this. The Clause deals with separate charges, and, therefore, where we have separate charges an action could be brought in respect of the separate charges. It deals with a position where we have separate charges, some of which are justifiable and some of which are unjustifiable. Therefore, the plaintiff could limit himself to the unjustifiable charge only and would be entitled to succeed on the unjustifiable charge, and there would be no answer at all to him.
But if he is so ill-advised as to bring an action on a justifiable charge as well as the unjustifiable charge, then in the circumstances contemplated in Clause 5 the unjustifiable charge would in effect be brushed aside and he would be allowed no redress at all in respect of it. Whether he would succeed or not would depend, in those circumstances, on the procedure which he adopted, which of course would be a ridiculous result.
It is not on that ground only that I wish to press my opposition. My other ground is this. The Porter Committee, whose recommendation is, of course, the origin of this Bill—this Bill is conceived to carry out the recommendations of the Porter Committee—gave their reasons for recommending this Clause or something in the nature of it. I would invite the House to examine those reasons, to consider the case in the light of those reasons, and then to come to the conclusion whether a Clause of this kind is necessary at all in order to deal with the reasons which the Porter Committee gave.
The reasons the Porter Committee gave are these. They said that in a libel action a verdict on any one charge carries the costs of the action. We have a position, in other words, where several charges are made in a libel action, the plaintiff fails on substantial charges and he succeeds on one charge, but if he succeeds on one charge nevertheless that decision carries the costs of the action and he is entitled to the costs of the action. He is entitled to those costs whether he succeeds on that charge after trial or on an admission of liability and payment into court. If by one means or another he succeeds on one charge, he is entitled to the general costs of the action.
I agree at once that that is quite an unjustifiable position. I agree that there should be a remedy provided for that state of affairs. But my point is this. Here in Clause 5 the Porter Committee are suggesting, by their recommendation, which is included in Clause 5, an amendment of the substantive law to deal with a procedural defect. My case is that the procedural defect to which they allude as the basis for their recommendation should be met by a procedural remedy and not by an alteration in the substantive law. This procedural remedy, of course, can quite simply and easily be dealt with. It is a question of costs.
If there were need for any amendment of the Rules of Court to deal with it or anything of the kind, that could easily be done without legislation or any alteration in the substantive law, but in any case the remedy is already in the hands of the judges. They have got the power to apportion their costs and they can do so without any difficulty. There is no need for this alteration in the substantive law in order to deal with that difficulty. Therefore, this procedural defect, to which the Porter Committee, if I may say so with respect, rightly called attention, should be met by a procedural remedy which is readily available.
That is the main ground on which the Porter Committee proposed the amendment incorporated in Clause 5. But they also say that where there are a number of charges made and the plaintiff succeeds on one charge and fails on the other charges, his success on the unjustifiable charge might amount to a general whitewashing of the plaintiff, and that might be undesirable.
There are three answers to that. The first is that if the costs are apportioned, as I recognise at once that they ought to be, and that the plaintiff should not be entitled to the general costs of the action because of success on one of the arguments, it makes it extremely difficult for him to say that he succeeded in the general action.
Secondly, if he limited his action to unjustifiable charges only he would obviously succeed on the unjustifiable charges, and, therefore, his position would depend upon the procedure which he adopted. Thirdly, this is a matter of common sense, for, after all, it is the individual citizen who is the defamed person and brings his action against publishers of one kind or another and in particular against newspapers. The publicity is in the hands of the newspapers themselves to a very large extent. The small defendant citizen who is, generally speaking, a plaintiff in actions of this kind are not people with a great command of publicity. I do not think myself that there is very great force in those reasons, and so far as there is substance in them they can be met by the procedural remedy which I have already suggested.
I now leave the Porter Committee reasons and come to more general considerations. There is a strong view among lawyers—and very distinguished lawyers, too—that the defence of justification should be made not easier as this Clause makes it, but more difficult, and justification should only be a defence where it is in the public interest that it should be. In other words, not only has justification to be established, but it has to be established that the statement to be made is in the public interest.
Speaking for myself I do not share that view, but it is a consideration which the House should have in mind when dealing with Clause 5, that there is a substantial body of opinion which considers that the law of justification is not sufficiently stringent, and that the plea of the defendant should be more restricted than it is, in fact, at the moment.
The second general consideration which I should like to bring before the House is that it seems to me dangerous to take a course of action which would enable the Press or any publication to be less careful than they are at present in their statements about people. It means that there will be less restraint upon dressing up a story than there is at the present time, that additional details could be added, and that some more "pep" could be put into the story. It is an extremely dangerous tendency, and it is the duty of Members of Parliament to do everything they can to protect the small person, the ordinary citizen, and if this Clause is carried it means that he is more exposed to defamatory statements than he is at the present time.
It may be that it is a person who has committed some fault which is within Clause 5. I recognise at once that a person coming within the Clause is somebody about whom a defamatory statement can justifiably be made, but I suggest that where a person is the subject of a defamatory statement of that kind, it is important that what is said about him should be severely limited to what can be justifiably said about him, and that he should not be thrown to the wolves. He should not be somebody about whom a "pep" story can be written up with defamatory statements which on the present law would make the publisher liable to damages.
I think, therefore, that it is not desirable as a matter of substance that we should encourage greater laxity in Press accounts or in publications at all whether Press or otherwise about people of whom admittedly some defamatory statement can justifiably be made. There is a dangerous tendency in this Clause and I think the House should reject it.
I will just summarise my reasons. First of all, the result of this Clause will be to make the plaintiff's remedy dependent upon the procedure which he was advised to adopt. Secondly, the Porter Committee reasons for recommending some such Clause as this were procedural reasons which should be made by a procedural remedy, and not by a substantial change in the law. They ought to be made properly by other means than the change in the law as proposed in the new Clause. The tendency of this Clause would be to encourage greater laxity in Press stories and in other publications.
It is for reasons of this kind that a substantial minority in Committee on this Bill voted against this Clause and there is a substantial minority in the House against it. I am glad to see that one of the hon. Members who has put his name to the exclusion of Clause 5 is the hon. and learned Gentleman the Member for Kensington, South (Sir P. Spens), whom we all hold in such high respect. It is certainly not a party issue of any kind. It is a matter which cuts across both sides of the House, and I suggest for the reasons which I have ventured to put before this House that the Clause should be rejected.
I beg to second the Amendment.
This Amendment has been moved by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) in a very clear manner. The exposition which he has given of the legal position covers the entire matter, and I have no desire to detain the House by covering the ground which he has already covered.
Looking at it as an outsider and not from the point of view of an experienced practitioner, I think the discussion which took place upstairs and which has been summarised so ably by my hon. and learned Friend turns on two points. First is the technical point which he mentioned, which obviously weighed very considerably with the Porter Committee. I also think that the point he made, that the particular difficulty can be dealt with perfectly well by the rules of procedure, seems to me a conclusive answer to the matter which weighed so heavily with the Porter Committee.
The other fact which entered into the question is a more general and a broader one. It is a point of view which has weighed heavily with those of us who have been rather critical of what have been called the defendant Clauses in this Bill, that it is rather contrary to one's idea of fair play that a man should be hit when he is down. The fact that somebody has a character which does not stand up to the glare of cross-examination in every respect does not mean that his interests should not be considered. Far be it from me who has never been cross-examined by hon. and learned Members of this House to imagine that any one could stand up easily to that kind of treatment.
I see the hon. and learned Gentleman the Member for York (Mr. Hylton-Foster), whose cross-examination I have often admired from a safe distance, showing signs of lusting to get at me in the witness box. The fact that the plaintiff's character was not spotless would be no reason why the defendant should be able to ride off on the whole issue and to say: "I have said things about you which are untrue and which have subjected you to ridicule, hatred and contempt, but after all you are no person to complain because you have a pretty spotty character, anyhow." That is not the kind of argument which should appeal to the House, and is one of the good reasons why the House should reject the Clause.
In the debate in Committee it was impressive to note the weight of professional opinion behind this point of view, quite apart from those who looked at the matter from a broader point of view. In fact, the Clause was maintained in the Bill by only one vote. In the minority was my hon. and learned Friend the Member for Leicester, North-East who then, as today, presented a conclusive case. He had the support of the hon. and learned Member for Kensington, South (Sir P. Spens) and of the hon. and learned Member for Middlesbrough, West (Mr. Simon), whose views on this matter carry great conviction.
It is clear that there is a very strong weight of the highest possible professional opinion against this Clause on the technical side. Those who look at the matter from a broader point of view need not be terrified or frightened by the fact that those who are practised in the law of defamation in the courts think that the Clause is desirable and necessary. The misgivings which prompted the Porter Committee to recommend a Clause of this kind can be met by procedural Regulations. I ask the House to reject the Clause by carrying the Amendment.
It is with considerable diffidence that I venture to differ from the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas), who has proposed the Amendment, because I would defer to his opinion with great respect on many matters. I could agree entirely with his argument and with the argument of the hon. Member who seconded the Amendment, if it were not for the latter part of the Clause, where I read:
… if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
Those words give to the court the power to protect the rights and the position of the individual. I do not think that the hon. and learned Gentleman was justified in drawing the picture he did of someone who has been defamed being thrown to the wolves and being placed in the position of having bad things written about him. There is much to be said for the charge of laxity in regard to the Clause, but the words I have quoted are quite sufficient to give full protection to the individual. The legal position will not be materially altered to the prejudice of a libelled individual. For that reason I hope that the House will reject the Amendment.
I intervene in regard to what I consider an important reform in Clause 5, very necessary, and long overdue. I do not think there is a case at all for rejecting it. The very reasons that have been given for the Amendment are those which support the proposed reform.
It is useful to look at legal matters from a common-sense point of view and not strictly from the point of view of a lawyer all the time. Every lawyer who practises in this field of the law knows that when he is advising in a libel action he is sometimes met by the fact that most of the words used were well justified; but there may be one small point that cannot be justified. A defence can be presented to show that the person who brings the action is a rogue, yet the action may fail because justification cannot be pleaded with regard to that small point.
Surely a person who goes into print, say in a newspaper, is under an obligation to tell the truth. It is no answer for him to say, "I didn't tell the truth in this small point of minor importance because you are a rogue, anyway." If a writer tells a lie he does so at his peril. That is the position at common law.
The answer to that objection is very simple. When a plaintiff brings an action for damages he is saying to the court, "My character has been defamed and I want damages because of an attack made upon my reputation." If there is no damage to his reputation or no attack has been made, the fact that one small part of the allegation cannot be justified is no reason why he should ask the court to award damages.
For instance, we know how narrow is the line that separates the crime of false pretences from the crime of larceny. Suppose someone publishes a statement saying that a man has committed offences by stealing goods and obtaining goods by false pretences. Suppose it later turns out that although there were cases where he stole goods, strictly speaking, he did not commit the crime of obtaining goods by false pretences. If an attempt were made to justify that libel the plaintiff would be bound to win, because the defendant could not justify the charge. Great injustice might well be done in that way by allowing the plaintiff to get away with something when having regard to his reputation, he clearly ought not to succeed.
Surely, in that example, the person defamed has been convicted. It is alleged that he has been convicted of two crimes whereas in point of fact he has not been found guilty of the second crime of false pretences. The defendant who published the libel ought to have exercised reasonable care and to have ascertained that the man was not guilty of what the defendant had said he was guilty of.
I was about to add before that interruption that if there were any danger it is really dealt with by the words in the last part of the Clause. They are:
… if the words not proved to be true do not materially injure the plaintiff's reputation
having regard to the truth of the remaining charges.
Therefore, when a judge or jury are discussing this matter, all the arguments can be put before them and, if there is material damage done, the plaintiff will have his remedy. Surely, however, it is not right that a plaintiff should be entitled to get damages when it is proved by way of justification that he is a rogue but, because of the failure to justify some small point, he is then entitled to obtain a verdict.
I am sorry to interrupt, but this is important. Would my hon. and learned Friend say that it is a small point to say a man has been guilty of obtaining goods by false pretences?
I did not say that an allegation that a man has obtained goods by false pretences was a small point. What I tried to do by way of illustration was to take a case where a man was a rogue and has stolen goods and had been convicted a number of times, and words were published alleging he was guilty of a number of offences of stealing or obtaining goods by false pretences. There is a narrow line between the two offences and, because of that, I say it would be wrong for a plaintiff to succeed although his reputation had suffered in no way because of the mistake.
It has been said in argument that this is a procedural matter. I venture to suggest that it is not. I suggest that the Rules Committee would have great difficulty in providing a remedy by rules with regard to this matter. I regard the reform put forward in the Clause as long overdue and I hope the Amendment will be rejected.
I want first to acknowledge the clear and restrained way in which the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) has put this matter. As he said, he has put it before, but I think that today he has put it even better. However, he has not convinced me and I want to follow the hon. and learned Member for Stoke Newington and Hackney (Mr. Weitzman) in this in saying, strange as it may appear to some who are listening, that we should not emphasise the legal side of it but look at the commonsense point of view.
Hon. Members might like to be reminded that this matter was dealt with by the Porter Report on page 20 under the heading "The Defence of 'Justification'." It starts by saying:
Under the existing law, it is a good defence in any action for defamation … to prove 'justification,' i.e. that the words complained of are true in substance and in fact.
It goes on to discuss that, and then under a subheading "Substantial Justification" is dealt with. Although the hon. and learned Gentleman regarded it as a minor point in the drafting of the Report, I would venture to suggest to the House that it is not so. It is emphasised in paragraph 80 of the Report that it is very undesirable for a plaintiff to obtain an undeserved whitewashing of his reputation.
It is quite clear from reading this Clause what it is designed to prevent. It says that the defence of justification is not to fail by reason only that the truth of every charge is not proved. As has been pointed out, it does not stop there because, if it did, it would be open to all the objections of the hon. and learned Gentleman and of the hon. Member for Widnes (Mr. MacColl). The Clause goes on to say:
… if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges.
Therefore, the matter must be considered as one of substance, and the Porter Report reaches this conclusion in paragraph 81:
… we think that the existing case law has in the course of its evolution, tended to encourage too close a dissection of each sentence, indeed of each phrase, in a defamatory statement and to overlook the real effect of the statement when read as a whole. Judged by first principles, a plaintiff should not be entitled to recover damages if the defendant proves that the main charge or gist of the libel is true, even though he fails to prove the truth of some minor charge, provided that such minor charge does not add appreciably to the injury to the plaintiffs reputation.
As I understand, this Clause is regarded as being substantially important by those responsible for publishing newspapers. A great deal of the argument here and in Committee against this kind of Clause has been apt to be based on the contrast between the poor little citizen and the great wicked monster paper like the "Daily Horror" or the "Daily Racer."
In fact, it is important to remember that many of those concerned with this Bill are not the monster daily papers at all; they are those responsible for those admirable and most useful local papers which are often most concerned to study the true facts, to draw attention to abuses and generally to ventilate public opinion in their districts. They are often quite small organisations. They are certainly not monster corporations which can ruin those who attack them. Indeed, often in those cases it is the newspaper which is a smaller entity than those who are attacking it. Therefore, we ought to get away from that point of view.
The hon. and learned Gentleman gave three reasons for not accepting the Porter Committee recommendations as regards whitewashing. First, he said it would be difficult for a man to represent he had won if he had been mulcted in costs. With the greatest respect, I suggest that it is a rather legalistic argument because a great many people do not go into the details of these matters. If the man can say he has won his action, that is enough for him to be able to spread about.
Secondly, it was said that he could succeed if he limited the case to that of unjustifiable charges. There again as a matter of law no doubt that is quite correct, but supposing there is something which comes within the second half of this Clause, something which cannot materially injure his reputation, is it likely that he will bring a separate action? That, again, is a matter of common sense.
The third objection was the point about the poor individual citizen. There one has to hold the balance in a fair way. The other argument of the hon. and learned Gentleman was that it might encourage carelessness. There may be some element of truth in that, but, again, it is a question of two sides to the matter and of balancing the one against the other. I suggest to the House that, in accordance with the general idea underlying this Bill, better protection is required for those who are concerned to focus the spotlight of truth on current events and personalities. I therefore suggest that the Clause is justified and should be retained.
I do not want to retraverse ground which has been covered by abler people who have preceded me, but as this matter troubles quite a number of Members of the House, it might be useful to say a few brief general words as to why I regard the Clause, first, as an important one, and second, not as a mere alternative to some procedural alteration.
In spite of the delicate doubt which was cast by my hon. and learned Friend upon the wisdom of maintaining the defence of truth at full strength—although he did not commit himself to any desire to whittle away that defence—it is generally agreed that cruel as it sometimes is if it is misused, the right to print the truth about people is sacred and necessary in the public interest. That right to print the truth is protected, as far as libel actions are concerned in civil courts, by the defence known as justification, which is dealt with by the Clause.
The defence of justification, in English common law and in English good sense, has never meant that one has to prove every comma and dot of what one has spoken or printed. It means that a person has to prove that the defamatory matter is substantially true and that the sting of what he has said about a man is true. There are a number of old cases where people were called rotgut rascals and things of that kind, and it has been held, of course, that nobody was called upon to prove, strictly speaking, that the man was a rotgut rascal, whatever that might have meant at the time it was uttered.
The trouble has been that in the useless over-refinement of legal quibble, a tendency has grown up which has damaged this fundamental and sound principle of the common law defence of justification—namely, that a person must prove the substance of what he has said to be true; not every dot and comma but the substance of it. That defence has been damaged in some degree by the tendency of judges and lawyers to split up sentences and phrases and to treat what ordinary folk would very often regard as one libel, as a whole series of libels, and the defendant has been put to prove every single phrase used in the libel.
No. "Charge" is a perfectly well recognised term of law. That is why it is used in the Bill. We are dealing not with the gist of the libel, but with separate charges.
What has been suggested by the unanimous decision of the Porter Committee, and the view I respectfully commend to the House, is that this tendency to chop up phrases and to make out of what any ordinary individual would regard as one charge a whole series of charges, is not a wholesome process and runs contrary to the very sound general principle that a defendant should prove the substantial truth of what he has uttered. That is the defence upon the merits of the need for the Clause, and I just want to say a word or two about the fears, which, coming from my hon. Friends, I respect, about the misuse of the Clause.
I feel that my hon. Friends are not showing enough confidence in the good sense and the sense of justice of British juries, because, as has been already pointed out, it would be for the jury to say whether or not the additional charge was of a kind which did substantial damage to the plaintiff's reputation.
I am most delighted to hear that my hon. Friend is coming out in his defence of the British jury, because in the arguments on unintentional defamation the whole of his case was based on the fact that we could not rely on a jury to see that blackmailers got the treatment they deserved. It is rather odd that in the one case a jury cannot be allowed to remain as the protection against abuse of the law, whereas in this other matter we are expected to rely entirely on the jury.
I doubt whether my hon. Friend would find a word I have ever spoken in my adult years against the British jury. I am a convinced believer in the British jury, in criminal and in civil cases. My hon. Friend will not find a line in any of my argument which is based on a distrust of the jury. The reason why I moved the other Clause about unintentional defamation, which commended itself to the House, is that I think the law as it stood was bad; and that was the universal view of the Porter Committee and the universal view of the Committee of the House which considered it—at any rate, as far as it was expressed by vote. I hope I shall never say anything which casts doubt upon the wisdom of retaining the jury system in civil and in criminal cases, and I have not done so in connection with earlier Clauses.
It is quite untrue to think that the Clause raises the danger for the derelict character—the man who is down—and that people are being encouraged to shoot at him with impunity. My hon. and learned Friend must realise that there is nothing to stop the advocate of the injured man pointing out to the jury, as has so often been pointed out in cases of this kind, that the jury are dealing with a man whose character is defective and that for that reason he may require protection more than a man who is of very strong character.
My hon. and learned Friend should place a little more confidence in the ability of the advocate to draw the attention of the court to these points and in the ability of the juries and judges to see his point for themselves: that defective characters must not be shot at by reckless people anxious to injure them and who think that they can escape liability under the Clause. There is enough good sense and good law in the courts to protect people from those sorts of dangers.
I urge upon my hon. and learned Friend that the real occasion when the Clause would have effect is when, in pursuance of a public duty, some person—not necessarily a newspaper, but very often a newspaper—is exposing a rogue who is preying upon the public. It may be necessary in order to expose that rogue to elaborate 20 or 30 detailed charges of dishonesty, and it may be that at the time of trial only 29 of those 30 charges could be proved.
It is essential that the rogue should not be whitewashed in the action. It is essential that the substantial truth of the allegations printed should act as a defence. In those circumstances we ought to have a care that by over-meticulous and academic regard for the rights of rogues—I am not suggesting that they should be defenceless and should be besmirched recklessly—we do not inhibit a good deal of healthy expositions of them from being published for the protection of the public.
In those circumstances, I urge the House to preserve the Clause, which is a commonsense Clause and which reestablishes with great clarity the fundamental principle of English law as far as the defence of truth is concerned in a libel action—namely, that the substantial truth or sting of the libel should be justified by the defendant—and to prevent that defence from being endangered by over-refinement.
I had not intended to detain the House, but I have thought about the Clause in every way. I have heard the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) state his case against it more than once, and each time with equal attention and enthusiasm. I am left, however, realising that it is a difficult matter, perfectly convinced that it would be an improvement of the law to include the Clause, and for that reason I desire to say now without recapitulating arguments more than is necessary.
I start rather from the same point of view as the hon. and learned Member. I think that the onus is entirely upon the writer to be careful not to abuse any privilege which the law confers upon him. But I do not forget that the gold-digging plaintiff really is a social evil, and we ought not to be having a law which could be used by the person ordinarily called the "gold-digging plaintiff".
When the right hon. Member for South Shields (Mr. Ede) intervened just now, bearing in mind how hard of heart one may become after experience in the office of Home Secretary, I was astonished to think that anyone could imagine for a moment that an accusation that someone had been guilty of the offence of obtaining goods by false pretences, could ever in any circumstances be regarded as anything but a very serious charge against his character. If I thought that by the inclusion of this Clause we were enabling a horrible writer to make accusations of that kind, which he could not justify and yet not have to pay I would vote against its inclusion and should in no sense support the Clause.
The hon. and learned Member will recollect that I intervened because my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) used it as an example of what the Press would be able to say and get away with. That was what horrified me because, having attended quarter sessions sometimes I realise that people—rightly or wrongly— do regard the obtaining of goods by false pretences as a much worse crime than the committing of a simple theft. My hon. and learned Friend says that if the Press had wrongly stated that a man had been guilty of obtaining goods by false pretences this Clause would enable them to get away with it, and that is what I object to.
I hope that my right hon. Friend is not under a misapprehension as to what I said. I was trying to quote an example of where a wrong might be committed. I did not suggest for a moment that if a person accused another person of obtaining goods by false pretences and it was simply a matter of that that he should be able to escape the consequences of making a false allegation. But, if a person wrote about a man that he was a scoundrel and had stolen things and was guilty of a number of crimes and incidentally said, quite wrongly, that he had been guilty of obtaining goods by false pretences, a plaintiff should not be entitled to damages by claiming that he was guilty of all those offences except that of obtaining goods by false pretences, although his reputation was not materially injured.
Everyone is agreed that accusing someone of obtaining goods by false pretences is a serious accusation and whatever that was included with under this Clause it seems to me remarkably unlikely that a British jury would take any other view.
May I present my feeling and impression about this? If there is one thing which infuriates the House more than anything else it is talking Latin to them, but I say that this is an example of the well-known principle of de minimis. I had better translate for the hon. and learned Gentleman, because he and I were at the same educational establishment. If I am right in the view that this is de minimis I do not believe that the Clause would deprive the potential plaintiff of anything of which one would mind depriving him.
I hope that that is right. If the law is not to be used as an instrument for obtaining remedies for trifles, worthless things, in my view all this Clause is securing is that end. No one is entitled, I believe, to obtain any sort of damages, even nominal or contemptuous damages —I do not want to go over the ground about costs—if it is really true to say of his complaint that it is de minimis, a worthless thing.
I believe that the real result of the final words of the Clause is to deprive the plaintiff only if the matter of his complaint is in respect of something of which it is true to say de minimis and on that basis I do not believe that some of the fears of the right hon. Gentleman are well founded.
If it is a trifle and de minimis,there is nothing for the Clause to deal with. It must be attracted to something substantial which is subsidiary to other allegations which are made. Take the case my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) quoted, of larceny and false pretences—I am glad to know that the hon. and learned Member for York (Mr. Hylton-Foster) completely disagrees with my hon. and learned Friend and would consider that a substantial matter. It is difficult to see what the point of the Clause is if the matter is not more than a trifle because, if it is a trifle, it can already be dealt with.
I look at the matter in the way in which it usually arises, namely, when one is advising someone at an early stage whether he has a sound claim in respect of a matter, or the other way round, whether the writer has to pay. It is at that stage that this will arise. Frequently it would be very bold to advise a newspaper that the matter was covered by the naked de minimis principle. It would have to be so very trifling before one could feel safe about that.
I believe that this would improve the position because we would be able to decide as best we may, "Does this or does it not materially injure the plaintiff?" That which does not materially injure—I do not mind whether it is de minimis or not—is something in respect of which one does not want the plaintiff to be seeking damages at law. It does not secure any public advantage. I hope that is the right view because on that basis I wish to support the Clause.
I have already stated what I feel in the interruptions which hon. and learned Members have allowed me to make, but, speaking as a layman, it seems that I am left in a very terrifying position because I have to choose between my hon. and learned Friend the Member for Stoke Newington and Hackney, North (Mr. Weitzman) and the hon. and learned Member for York (Mr. Hylton-Foster) as to what would happen in the hypothetical case which was put up at first with so much assurance by my hon. and learned Friend the Member for Stoke Newington and Hackney, North.
That, of course, is exactly what the lawyers like; that the law shall be so uncertain that each can advise his client to go on with the action because, no matter who loses, and no matter what happens, they will both win. It seems to me that the case put by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas) is the safest one for a layman to pursue, because the further he keeps away from points on which lawyers have contradictory opinions the better for him and for the State.
In view of what I have heard, I wish to support the Amendment moved by the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas). I regret that so few hon. Members on this side of the House should feel as does the hon. and learned Gentleman, but it seems to me that the plea of justification is very important. That this Clause, as the hon. Member for Widnes (Mr. MacColl) put it, does indicate a very dangerous practice. After all, why should a defendant get away with something which is untrue, particularly in the matter of a libel? In a newspaper libel one particular issue may be read by six million or seven million readers. Why should the onus be on the plaintiff to see that his reputation is not smirched?
In the case of slander it is, perhaps, a little different because in most cases of slander proof of special damage is necessary, but, in the case of a libel which has such an enormous circulation as a newspaper libel it seems to me that the onus—as suggested in this Clause— in respect of any matter of libel should not be put on the plaintiff to show that his reputation suffers.