Clause 5. — (Justification.)

Part of Orders of the Day — Defamation (Amendment) Bill – in the House of Commons at 12:00 am on 27th June 1952.

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Photo of Mr Lynn Ungoed-Thomas Mr Lynn Ungoed-Thomas , Leicester North East 12:00 am, 27th June 1952

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.

12.15 p.m.

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.