[1972]-A.C.-1027

A.C.

1027 Lo'd Simon of

Reg. v. Nat. Nat. Ins. Ins . Comr., Comr., Ex p. Hudson Hudson (H.L.(E.) (H.L.(E.) )

Glaisdale

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Committee Committe e on on your Lordship Lords hips' s' House) should sit in banc when invited to review a previous decision.  Appeals allowed. Thompson; The Solicitor, Solicitor, Department of Health and Solicitors: W. H, Thompson; Social Security. F. C.

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[HOUSE OF LORDS]

CASSELL  & CO. LTD 

APPELLANTS AND

AND ANOTHER BROOME AND

RESPONDEN RESP ONDEN TS

[On appeal from   BROOME V. CASSELL   & Co.  LTD.] D

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197 1971 Nov. 29, 30; 30; Dec. 1,2, 6, 7, 8, 9, 13, 13, 14, 14, 15, 16, 16, 20; 1972 1972 Feb. Feb . 23

Lord Lor d Hailsham of St. Marylebone L.C., Lord Lor d Reid, Lord Lor d Morris of Borth-y-Gest, Viscount Dilhorne, Dilho rne, Lord Wilberforce, Lord Lor d Diplock and Lord Kilbrandon Kilbr andon..

 Libel and Slander   Damages for libel —   Exemplary damages —  —   —   Book written and published in face of threats of libel actions  Documents  Documents disclosed by author and publishers covering  —  period of preparation and publication of book—Claim for exemplary damages —   Award by jury of exemplary damages exceeding amount of compensatory damages — Whether Whether jury entitled to award exemplary damages on broad view of whole of defendants' conduct or within narrow limits laid down by  House of Lords in 1964 decision — Whether Whether evidence of conduct showing defendants knowingly or recklessly publishing libels on calculation calculation that profits for themselves likely likely to exceed compensation payable to plaintiff  Judicial Precedent   House of Lords decision —   How far binding —  —  Whether Court of Appeal entitled to treat it as delivered per incuriam as being being inconsistent inconsistent with previous House of Lords decision A distinguished retired naval officer brought actions for libel against the publishers and author of a book presented as the authentic authent ic account of a wartime disaster when when a convoy convoy under unde r naval nava l escort to Russia in 1942 1942 suffer suffered ed destruction destru ction follow follow ing an ill ill founded founded Admiralty signal signal to scatter the convoy. convoy. He claimed, inter alia, al ia, that passages in proof proof copies copies distributed some months before general publication and in the hard back edition of the book meant that he as commander of the convoy's destroyer escort bore a share of the responsibility for the dis aster. The defendants pleaded justifica justification tion of the words in their their ordinary ordina ry meaning. Shortly before the trial, trial , notice was given given that the plaintiff intended also to claim exemplary damages. At the trial with a jury, the judge ruled that the claim for exemplary damages must be specifi specificall cally y pleaded and allowed an amendment to the statement of claim for that purpose.

1028 Broo Broome me v. Cassel Casselll & Co. (H.L.(E.)) U972] U972] The defendants did not give evidence but made full dis covery of documents, which which included correspondence and the author's day-book covering the period from preparation of the manuscript to general release. They showed, showed, inter alia, that from a very early stage the defendants had known that the  plai  plaint ntif ifff object objected ed to passag passages es relating to his his conduct conduct and threatened a libel action and that high-ranking naval experts considered the account libellous, but that the book had pro ceeded to publication with only minor modifications of the  passag  passages es complain complained ed of. of. The trial judge directed the jury that if they awarded dam ages they should award separate sums for compensatory and exemplary damages and that exemplary damages should be awarded only if they were satisfied that the defendants' conduct came within the second of the three categories laid down by the House of Lords through the speech of Lord Devlin in   Rookes v.   Barnard  [196 [1964] 4] A.C. 112 1129, 9, 1226 1226-1 -122 227 7 (as "ca " calc lcul ulat ated ed"" to make a profit for themselves which might well well exceed the com pensati  pensation on payable payable to the plai plaint ntiff iff); ); and he warned warned them them that such an award in a civil action was in the nature of a fine for a crime and should be be approached approac hed strictly. The jury awarded the  plai  plaint ntif ifff £15, £15,00 000 0 compensatory compensatory and £25, £25,00 000 0 exemplary exemplary damages, damages, a total of £40,000 against both defendants. On appeals by both defendants against the award of exem  plary damage damagess on the ground that the evidence evidence of their conduct conduct did not satisfy satisfy Lord Devlin's second category, and on the author's appeal against the amount of the compensatory dam ages, it was argued for the first time on behalf of the publishers that, seeing that   Rookes v .  Barnard   made exemplary damages a penalty to fine defendants, the jury in cases where there was more than one defendant should be asked to split the punitive award to reflect reflect their view view of the relative guilt guilt of of each. For the plain plaintiff tiff it was was submitted that th at the evidence evidence about the defen defen fell within within Lord Devlin's second category, and, dants' conduct fell alternatively, that the court was free to apply House of Lords decisions in libel actions before   Rookes v.   Barnard   where awards of exemplary damages for the whole of the defendants' conduct had been approved. The Court of Appeal held that, whether on the basis that it was bound by Rookes v. Barnard   or on that of the law which  previou  previously sly prevailed, prevailed, the plain plainti tiff ff was entitled entitled to succ succee eed d and to retain the amount amoun t of the exemplary damages awarded to him,  but that  Rookes v.   Barnard   was not binding as being incon sistent with previous decisions of the House of Lords and decided per incuriam. The publishers appealed to the House of Lords on the issue of exemplary damages: —  Held,  (1) that the decision in   Rookes V.  Barnard   was not arrived at per incuriam, that in the hierarchical system system of the English courts it was not, in any event, open to the Court of  Appeal to direct judges of first instance to ignore a decision of the House and further (Viscount Dilhorne dissenting) that  Rookes v.   Barnard   was not inconsistent with any earlier decision of the House of Lords (post, pp.   1054B-D, 1084F-G,

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1098F-G, 1099A-B, 1107A-C, 1113C-D, 1131B-E, 1132D).

(2) (Unanimously) that, inasmuch as there was evidence on which which the jury could find find that the case case fell fell within the second of the categories enumerated by Lord Devlin in   Rookes v.  Barnard, viz., that the defendants had calculated that the money to be made out of their wrongdoing would probably exceed the damages at risk, they were under a potential liability to pay

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1029 A.C. 

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Broome v. Cassell & Co. (H.L.(E.))

exemplary damages: th e fact tha t the th e tortious act was   committed  in   carrying on  business was not   sufficient;   in the  course of  carrying it must be don e with guilty knowledge  for the motive that  the chances of   economic advantage outweighed  th e  chances of economic or   physical penalty (post, p p .  1079B-E,  1088G-H, 1094C-E, 1101G-H, 1130D-F, 1132G-H). (3) (Viscount Dilhorne, Lord Wilberforce a nd   Lord Diplock dissenting) that th e trial judge adequa tely directed  th e jury in acc orda nce with th e  principle laid down in Rookes v .  Barnard tha t they must be told that   if, but only if, if, the sum awarded  by  by way wa y of   compensation was wa s inadequate t o punish th e  defendant, they might mark their disapproval of  his  h is conduct by  awarding a larger  sum su m  (post, pp . 1062B-C,

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1118D-F,   H2lH—1122A, 1134G—1135A). (4) (Lord Wilberforce a n d   Lord Diplock dissenting) that  the trial judge adequately directed  t h e jury as to the requirement that, where a  plaintiff sued more than on e defendant in th e same action in respect of  t h e same publication,  the sum which might be  awarded  by  way  wa y of   exemplary damages was t he  lowest for which any of the defendants could  be   held liable o n  that score (post, pp.  1 0 6 3 D - F ,  1 0 6 4 F - G , 1 0 9 0 F - G , 1 0 9 6 F - G ,  1106A-B, 1118G—11!19A,  1122A-B,  1 1 3 4 H — 1 1 3 5 A ) .

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(5) (Viscount Dilhorne, Lord Wilberforce an d Lor d Diplock dissenting) that th e amou nt arrived   at by the jury, thou gh large,  was not beyond that which 12  reasonable me n could award   for the  libel (post, p p .  1066B-C, 1 090G— 1091D, 10 96 H—

1097D, 1106E-G, 1118F-G, 1123C-D, 1135E-G). Per   Lord Hailsham  of St. Marylebone  L.C. I n  awarding " aggravated" damages, a s  distinct from " exempla ry" dam ages, t h e  natural indignation of  the  t he  court is a  legitimate motive in making a  generous, rather than a  moderate, solatium, since the injury was wa s greater because  of the defendants ' conduct exciting th e indignation. T h e three categories categories enumerated  in  Rookes v .  Barnard  were concerned with cases where, be yond what wa s awarded  for    loss of repu tati on, injured feelings, feelings, out fo r  loss raged morality, protection against further calumny o r   outrage, an additional  sum was needed  to  vindicate th e strength of the th e law la w an d   supplement its strictly pena l provisions (post,  pp. 1076G—  1 077B ).

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Per   Lord Hailsham of St.   Marylebone  L.C.  Damages rema re main in a  civil, n ot  a  criminal remedy even where a n exemplary award  is appropr iate (post, (post, p . 1082c). Reid. Exemplary damages ar e anomalous in con Per  Lord Reid. fusing t h e function  of the civil  law, which  is to  compensate, with that  of the criminal law to   inflict deterrent a n d  punitive   punitive  pena  pe nalt ltie ies; s; acco ac cord rdin ingl gly, y, th e anomaly should   not be permitted  in any class of   case where its use was not  covered  by  authority (post, p .  1086B-G).

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  granted Per Lord Wilberforce. I t cannot lightly be  taken for  granted that th e purpose of  t   that the  t he law of   tort is compensation or  that criminal law la w rather than th e civil law is in such cases as this the  bett  be tter er inst in st rume ru ment nt for    conveying social disapproval or  redressing  redressing fo r  conveying a wrong done t o the  th e social fabric (post, p . 11 14C-D) . I am far   from convinced that Lord Devlin   in his  second category intended  to   limit punitive damages in  defamation actions to   cases where a " profit motiv e " is  shown (post, p . 1119B-C).  Rookes v .  Barnard   [1964]  A.C. 1129, H.L.(E.) applied.  E. Hulton & Co. v .  Jones  [1910]  A.C. 20,  H.L.(E.) and  Ley v .  Hamilton  (1935) 15 153 3 L.T. L. T.   384, H.L.(E.) considered. A.C.  1972—37

1030 Broome Broome v. Cassell Cassell & Co. (H.L.(E.) ) [1972 [1972]] Decision of the Court of Appeal [1971] 2 Q.B. 354; [1971] A 2 W.L.R. 853; [1971] [1971] 2 All E.R. E.R . 187 187 affirmed. affirmed. A The following cases are referred to in their Lordships' opinions:  Addie (Robert) & Sons (Collieries) Ltd. v .  Dumbreck  [1929] [1929] A.C. 358, H.L.(Sc).  Addis V. Gramophone Co. Ltd. [1909 [1909]] A.C. 488, H.L.(E.).  Ashby v.  White (1703) 2 Ld.Raym.  938.  Attorney-General for New South Wales V. Perpetual Trustee Co. Ltd. [1955] A.C. 457; [1955] 2 W.L.R. 707; [1955] 1 All E.R. 846, P.C.  Australian Consolidated Press Ltd. v.   Uren  [1969] 1 A.C. 590; [1967] 3 W.L.R. 1338 1338;; [1967] [1967] 3 All E.R. E. R. 523, P.C.  Bell v.  Midland Railway Co.  (1861) 10 C.B.N.S. 287.  Benham v.  Gambling [1941] A.C. 157; 157; [1941] [194 1] 1 All E.R. 7, H.L.(E.).  Bocock  v.   Enfield Rolling Mills Ltd.   [1954] 1 W.L.R. 1303; [1954] 3 All E.R. 94, CA.  Broadway Approvals Ltd. v.  Odhams Press Ltd. (No.   2) [1965] 1 W.L.R. 805; [1965] 2 All E.R. 523, C A .  Bulli Coal Mining Co.  v. Osborne [1899] A.C.  351, P.C. Chapman v.  Lord  Ellesmere  Ellesmere [1932] 2 K.B.  431, CA. Clark  v.  v.  Newsam (1847) 1  Exch. 131. Crouch v.   Great Northern Railway Co.   (1856) 11 Exch. 742.  Dawson v. M'Clelland  [1899 [1899]] 2 Ir.R. Ir. R. 486.  Dougherty v.  v . Chandler  (194  (1946) 6) 46 N.S.W.S.R. 370.  Egger  v.  Viscount Chelmsford  [1965] 1 Q.B. 248; [1964] 3 W.L.R. 714; 714; [1964]3A11E.R.406,CA.  English and Scottish Co-operative Properties Mortgage and Investment Society Ltd. v.   Odhams Press Ltd. [1940] [1940] 1 K.B. K.B . 440; 440; [1940] [1940] 1 All E.R. E .R. 1, CA . Fay v.  Parker (1872) (1872) 53 N.H. N. H. 342. Fielding v.   Variety Incorporated  [1967]   [1967] 2 Q.B. 841; [1967] 3 W.L.R. 415; [1967]2A11E.R.497,CA. Forsdike v.  v . Stone (186 (1868) 8) L.R. 3 CP C P . 607. Greenlands Ltd. v. Wilmshurst and London Association for Protection of Trade [1913] 3 K.B. 507, CA.  Heydon's Case (1612) 11 Co.Rep. 5a.  Hill v.  Goodchild  (177 (1771) 1) 5 Burr. Bur r. 2790.  Huckle v. Money (1763 (1763)) 2 Wils. 205.  Hulton (E.) & Co. v.  Jones  [1910] A.C. 20, H.L.(E.).  James v . Baird, 1916 S.C 510.  Leith V. Pope (1779) 2 Wm.Bl. 1327.  Lewis  v. Dfli/y Telegraph Ltd. [1963] 1 Q.B. 340; 340; [1962] [ 1962] 3 W.L.R. 50; [1962] 2 All E.R. 698, C.A.; [1964] A.C. 234; [1963] 2 W.L.R. 1063; 1063; [1963 [1963]] 2 All Al l E.R.   151, H.L.(E.).  Ley v.   Hamilton (193 (1934) 4) 151 151 L.T. L. T. 360, C.A.; (1935 (1935)) 153 153 L.T. 384, H.L.(E.). H.L.( E.).  Livingstone  v. Kawyarcfr Coa/ Co.  (1879) 6 R. 922; (1880) 5 App.Cas. 25, H.L.(Sc).  Loudon v.  Ryder  [1953] [1953] 2 Q.B. Q.B. 202; 202; [1953] [1953] 2 W.L.R. 537; 537; [1953] [1953] 1 All E.R. E.R . 741, C. A.  McCarey v . Associated Newspapers Ltd. (No. 2)   [1965] 2 Q.B. 86; [1965] 2 W.L.R. 45; [1964 [1964]] 3 All E.R. 947, C A .  M'Grath v.  Bourne (1876) Ir.R. 10 CL. 160.  Mafo v. Adams [1970] 1 Q.B. 548; 548; [1970] 2 W.L.R. 72; [1969] [1 969] 3 All E.R. 1404, CA.

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Broome v. Cassell & Co. (H.L.(E. (H.L .(E.)) ))

[19 65] 1 W.L .R. 1038; 1038; [1965] [196 5] 2  Manson v. Associated Newspapers Ltd. [1965] All E.R. 954.  Mechanical and General Inventions Co. Ltd. and Lehwess v .  Austin  and [1935] A.C . 346, 346, H. L. (R ).  Austin Motor Co. Ltd. [1935] [1900] A.C. A. C. 113, H.L.(E. H.L .(E. ).  Mediana (Owners) v . Comet (Owners) [1900] (1814) 5 Ta unt. un t. 442.  Merest  v . Harvey (1814) [196 4] 1 W.L.R. W.L. R. 16; [1963] [196 3] 3 All  Morey v . Woodfield (No. 2)  (Note) [1964] E. R.   533, C.A. Practice Statement (Judicial Precedent)  [1966] 1  W.L.R.  1234; [1966] 3 All E.R. 77, H.L.(E.). (1889) 24 Q.B.D . 53, C.A. Praed  v .  Graham (1889)  Reg. v . Deputy Industrial Injuries Commissioner, Ex parte Amalgamated [1967] 1 A.C. A. C. 725; [1967] [1967] 2 W.L.R W.L .R..  Engineering Union, In re Dowling [1967] 210, H.L.( E.). 516; [196 7] 1 All E.R . 210, A. C. Reg. v . National Insurance Commissioner, Ex parte Hudson [1972] A.C. 944; [1972] [1972] 2 W.L.R W.L .R.. 210; [1972] 1 All E.R . 145, H.L.(E H.L .(E.). .). [196 4] A.C . 1129; 1129; [1964] [1964 ] 2 W.L.R. W.L .R. 269; [1964] [19 64] 1 All  Rookesv. Barnard  [1964] E.R. 367, H.L.Q3.). [1959] 2 Q.B. Q.B . 429; [1959] 3 W.L.R. W.L .R. 437; [1959] 3 All E.R. E. R. Scott  v .  Musial [1959] 193,  C.A. (1818) 2 Sta rk. 317. Sears v.  Lyons (1818) Smith v .  Streatfeild  [1913] [191 3] 3 K. B. 764. (1932) 47 C.L.R. C.L. R. 279. Smith's Newspapers Ltd. v.  Becker  (1932) 117 C.L. C. L.R. R. 118. Uren v . John Fairfax & Sons Pty. Ltd. (1966) 117 [196 6] 1 Q.B. 273; [1965] [19 65] 2 W.L.R. W.L .R. 455; [196 5] 1 All Ward  v.   James [1966] E.R. 563, C.A. Wilkes v.   Wood  (1763) Lofft. 1. (1845) 1 C.B. 841. 841 . Williams v .  Currie (1845) W.L .R. 1072; 1072; [1960] 2 All Al l E.R. E. R. 806, C.A. Williams v . Settle [1960] 1 W.L.R. Young v. Bristol Aeroplane Co. Ltd. [1944] K .B. 718; 718; [1944] 2 All E.R. 293,  C.A. YoussoupofJ  v . Metro-Goldwyn-Mayer Pictures Ltd. (1934) (1934) 50 T.L .R. 581, C.A. The following additional cases were cited in argument:

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[1909 ] A.C. 488, H.L.(E.). H.L. (E.). Addis v. Gramophone Co. Ltd. [1909]  Amos v.   Vawter  (1969) (1969) 6 D.L. D. L.R. R. (3d) 234. (1908) 24 T.L.R. T.L .R. 399, C.A. C.A .  Anderson v.   Calvert  (1908) (1969) 6 D.L. D. L.R. R. (3d) 322; 322 ; (1970) (1970) 12  Bahner  v. Marwest Hotel Co. Ltd. (1969) D.L.R. (3d) 646. 334, C A .  Bull v .  Vazquez [1947] L.J.R. 551; [1947] 1 All E.R. 334, [1944] K. B. 693; [1944] [1944] 2 All E.R. 17 1. Constantine v . Imperial Hotels Ltd. [1944] Denison v . Fawcett  (1958) (1958) 12 12 D.L. D. L.R. R. (2d) 537. (1970) 17 D.L.R D.L .R.. (3d) 222.  Eagle Motors (1958) Ltd. v.   Makaoff  (1970)  Emblen v.   Myers (1860) 6 H. & N . 54. 147, C A .  Exchange Telegraph Co. Ltd. v.   Gregory & Co. [1896] 1 Q.B. 147, 330. Fogg v.   McKnight  [1968] N.Z. L.R. 330. D. L.R. R. (3d) 531. Fraser  v .  Wilson (1969) 6 D.L. Greville  v. JFweman [1967] N.Z.L.R. 795. (1967) 63 D.L .R. (2d) 217. Gouzenko v. Le/o//i (1967)  Hornal v . Neuberger Products Ltd. [1957] 1 Q.B. 247; [1956] 3   W.L.R. 1034; [1956] 3 All E.R. 970, C.A.  Johnson v . Stewart   [1968] S.A.S.R.  142.

1032 Broome Broome v. Cassel Casselll & Co. (H.L.(E.) (H.L.(E.))) [1972 [1972]] Kelly v. Sherlock  (1866)  (1866) L.R. 1 Q.B. Q.B. 686. A Kirisits v. Morrell (1965) 52 W.W.R. 123. Knight  v. Egerton (1852)  (1852) 7 Exch. Exch . 407.  Leachlnsky  v. CTirta/e [1.946] K.B. 124; [1945] 2 All E.R. 395, C.A.; sub nom. Christie v.  Leachinsky [1947] A.C. 573; [1947] 1 All E.R. 567, H.L.(E.).  McElroy v.  Cowper-Smith and Woodman   (1967) 62 D.L.R. (2d) 65.  McKinnon v.  F. W. Woolworth Co. Ltd. (1968) (1968) 70 D.L.R. D.L.R . (2d) 280.  Mason  v. v . C/ar/te [1955] [1955] A.C. A. C. 778; [195 [1955] 5] 2 W.L.R. W.L.R. 853; [1955] [1955] 1 All E.R. B 914,H.L.(E.).  New York Times Co. v.  Sullivan (1964) 376 U.S. 254. Perrin v. Morgan [1943] A.C. 399; [1943] 1 All E.R. 187, 187, H.L.(E.). Pratt  v.  British Medical Association [1919] 1 K.B. 244. 244.  Rook  v. Fairrie [1941] 1 K.B. 507; [1941] 1 All E.R. 297, C.A.  Rosenbloom v.  Metromedia Inc.  (1971) 403 U.S. 29. Schuster  v.  v. Martin (1965) (1965) 50 D.L.R. D.L .R. (2d) 176. 176. C Sharkey v. Robertson (1969) 3 D.L.R. (3d) 745. Truth (N.Z.) Ltd. v. Bowles [1966] N.Z.L.R. 303. Tullidge v.  Wade (1769) 3 Wils. 18. 18. Washington Gas Light Co.  v. Lansden (1898) 172 U.S. 534. Wasson v.  California Standard Oil Co.   (1964) 47 D.L.R. (2d) 71.

Appeal from the Court of Appeal (Lord Denning M.R., Salmon and  Phillimore L.JJ.). This was an appeal from a judgment of the Court of Appeal dated March 4, 1971, whereby an award of £40,000 damages made at the trial  befo  before re Lawt Lawton on J. and and a jury jury on Februar February y 17, 1970, was uphel upheld. d. The The award award was on a consolid consolidated ated action by the respondent, John Egerton Broome, for libel contained in a book, " The Destruction of Convoy PQ17," written by the second respondent, David Irving, and published by the appellants, Casse Cassell ll & Co. Ltd. In respect respect of of the publication of of the hard  back  back edit editio ion n of the book, book, the jury aw awar arde ded d the resp respond onden entt comp compen ensa sato tory ry damages of £14,000 and exemplary damages of £25,000 against both the appellants appellants and the second second respondent. In respect of of the proof copies of the book the jury awarded the first respondent compensatory damages of £1,000. £1,000. The appellants now now appealed against the exemplary damages only, The book was an account of the circumstances in which the naval  protec  protectio tion n wa wass wi with thdr draw awn n from rom a conv convoy oy of merc mercha hant ntme men n proce proceedi eding ng to Russia in July 1942, with the consequent loss of most of the ships. Captain Broome Broome was the commande commanderr of the escort. escort. The book contained contained criticisms of of him. These were were alleged alleged by him in paragrap paragraph h 5 of of his statement of claim claim to mean " that the plaint plaintiff iff was disobedient, careless, incompetent, indiffere indifferent nt to the fate of the merchant ships and/or by virtue thereof had wrongly withdrawn his destroyer force from the convoy and/or taken it closer to the German airfields than he had been ordered to and had thereby been largely responsible for or contributed extensively to the th e loss loss of of the the aforesaid aforesaid ships and and the effec effecti tive ve destruction destruction of more more than two-thirds two-thirds of Convoy Convoy P.Q.17." P.Q.17. " The facts are stated in the opinion of Lord Hailsham of St. Marylebone L.C.

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Broome v. Cassell Cassell & Co. (H.L.(E.) (H.L .(E.)))

 Roger Parker Q.C. and   Robert Alexander  for for the appellants. The Court of Appeal have (1) purported to overrule   Rookes v. Barnard [1964] A.C. 1129 1129,, a unanimous decision decision of the House of Lords, Lords , and reinstate one of their own decisions which had been overruled by the House of Lords; (2) instructed judges to follow that decision; (3) introduced a new doctrine under which a decision of the House of Lords can be ignored as having been delivered per incuriam on the ground that the House had misinterpreted one of of its own previous decisions; decisions; (4) (4) awarded in a libel action a sum four times greater than that awarded a few weeks  prev  previo ious usly ly to a youn young g man man who who had had los lostt both both legs legs..  Rookes v.  Barnard   [1964] A.C. 1129 had been consistently applied as representing the law, and on that basis the appellants elected to call no evidence. evidence. The case reached the Court of Appeal on that basis. At first instance counsel for the respondent had reserved the point for possible future argument. In the Court of of Appeal counsel counsel for for the appellants did not object to its being being argued. The present present appeal is on the narrow ground of exemplary damages. There are two basic questions: question s: (1) (1) Whether the House will will adhere to  Rookes v.  Barnard   or will put the clock back and adhere to the Court of Appeal's view that that decision was unworkable and illogical; (2) whether the House will will further further develop the law law so as to abolish the anomalies and injustices resulting from the practice of making one award in respect of exemplary damages against joint defendants, a practice which stems from and is said to be justified by Heydon's Case (161 (1612) 2) 11 Co.Rep. Co.R ep. 5a; but bu t which, far from from being justi justifi fied ed by it, is is shown shown by it to be unjust unjustifi ified. ed. Ever since that tha t case it has been taken to be the law law that there should be one judgment against joint tortfeasors for damage flow flowin ing g from from the joint tort. The appellants appe llants do not quarrel quar rel with that. tha t. But the principle has been applied in cases of exemplary damages, where it leads to obvious injustice when one defendant is wholly innocent or where the degrees degrees of guilt are ar e differe different, nt, e.g., e.g., where the printer of a libel libel is saddled with the guilt of the author who has known throughout that the statements were both defamatory and untrue and has made an outrageou rageouss attempt to just justif ify y them, them, whil whilee the printer printer has not.  Rookes v.  Barnard   by putting exemplary damages squarely on the basis of punish ment opens the door to correcting this lamentable situation, because justice can be b e done to the plai plaint ntif ifff by a joint award of compensatory compensatory damages so that he can have recourse to both defendants defendants..  Rookes v.  Barnard   was the first case in which any court has bent its mind to seeing what exemplary damages ought and ought not to cover, where the line was to be drawn, what conduct c onduct went went to aggravate aggravate the injury injury and what required punitive damages. The logical logical extension extension of of that case would be, not just a split award of damages, but (1) that awards of exemplary damages should be subject to the same burden of proof as criminal cases and (2) that the amount should be for the judge rather than for the jury and should be subject to a fixed limit. limit. In this case the House of Lords is concerned concerned with the defamation defamation of Captain Broome alone and whether or not the appellants should be  punis  punished hed for for that. If the Royal Royal Na Navy vy has been been defa defame med, d, that has nothin nothing g to do with with this action. Further, Furt her, there was no allegat allegation ion in the pleadings

1034 Broome v. Cassell Cassell & Co. (H.L.(E. (H. L.(E.)) ))

[1972]

that the book book charged charged Captain Captain Broome with with cowardice; so, when when the defendants pleaded justification, they did not know that that point arose. But from from an early stage in the trial Captain Broome Broome made it clear clear that he complained complained of of that imputation. imputation. Since Since the consideration of that construction was not challenged, it is admitted that the jury were free to reach that conclusion. On the principles laid down in  Rookes v.  Barnard   there was no evidence evidence on which which the jury could award award punitive damages damages against the appellants. A defendant defendant is entitled entitled to say say in effect effect:: " I believe believe that what I am writing writing does does not defame. defame. If it does, I believe believe it is true. If I lose on these issues I expect to pay exemplary damages and, if I persist in  just  justif ific icat atio ion n in a way whic which h aggr aggrav avat ates es the inju injury ry,, I expe expect ct to have have to  pay aggr aggrav avat ated ed damages." damages." But that does does not mean mean that any any publis publisher her who goes ahead, despite the threat of an action, and loses is automatically liable to pay aggravated damages.  Rookes v.  Barnard   put the matter on the ground of "punish and deter. det er."" The jury must take into account account the conduct of the person they intend to punish. The appellants knew knew that a charge of disobedience disobedience to orders orders was made in the book. They sought without succes successs to justify justify that, but they did did not know they they woul would d fail. No one had sugg sugges este ted d that t hat a charge of cowardice was being being made and they should should not be punished punished on the basis of their having made an imputation of which Captain Broome had not complain complained ed until the trial. If a defendant defendant has no defen defence ce or is reckless whether he has or not, he may take the risk of publishing for the sake of profit profit and the jury are a re then entitled entitled to awa award rd such such damages damages as will punish and deter the particular person in the circumstances of the case. But the appellants had had not been been reckles recklesss and there was was no good good ground for awarding aggravated aggravated or punitive damages against them in regard to the charge of disobedience, whilst there is no evidence that they knew that by inferenc inferencee they were were calling calling Captain Broome a coward. coward. The fact that the jury found found that the words were were capable of bearing that tha t meaning meaning and that they did have that meaning does not establish a case for exemplary damages. damages. For that it would would have been necessar necessary y to establish that the appellants knew knew they were were calling calling Captain Broome a coward coward and that they did so knowingly and recklessly, and calculating that the profit they would make would cancel out any damages awarded against them. They did not try to justi justify fy the charge charge of cowardice. cowardice. Though the author intended to make a charge of cowardice, the appellants did not spot it. As to the questions which were put to the jury, there was no request  by the plai plaint ntif iff' f'ss coun counse sell for for alt altern ernati ative ve quest question ionss in the even eventt of the lega legall decisi decision on going the other way. way. The questions were not wrong wrong because, because, as a matter of law, as the law then stood, there was plain authority that there should be an award of one sum. Suppose an author, a publisher and a printer were all sued for a joint libel. After After a compensa compensatory tory award in one one sum, sum, so as to ensure ensure that the injured party had the best possible chance of recovering payment for the full amount, including aggravated damages in the  Rookes v. Barnard  sense, sense, there should be be three differe different nt verdicts in respect of punitive damages. Assume a wholly innocent printer, the defendant with most money, a very guilty and impecunious author and a publisher less guilty than the author

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 but richer richer.. If there there wa wass a joint joint award, award, it woul would d be the inno innocen centt printer printer from from whom the the plainti plaintiff ff would recover payment. payment. In the authorities before  Rookes v.  Barnard  the courts found great diffi difficul culty ty in dealing with damages in libel actions where there th ere were relative rela tive degrees of guilt. By section section 1 (2) (2) (a) of of the Law Reform (Miscellaneous (Miscellaneous Provisions) Act 1934 where a course of action survives for the benefit of the estate of a deceased person the damages damages recoverable do not include exemplary exemplary damages. Similarl Similarly y it would would be wrong wrong to recover recover against against the estate of a deceased person something designed designed as punishment for an individual. An award should should not make an innocent party suff suffer er.. If   Rookes v.  Barnard   stands, the argument that there should be separate awards is unanswerable. In the case of of compensat compensatory ory damages any injustice to the less guilty of joint tortfeasors in making the sum recoverable against all arises from from the necessit necessity y of of ensuring that the  plai  plaint ntif ifff shal shalll recov recover er for for the whol wholee of his inju injury ry.. But, But, once once one gets gets outside that sphere, there is no reason to support support the injusti injustice. ce. Since Since there has been no diff difficu icult lty y in applying it. If there  Rookes v.  Barnard there were not to be separate awards the right course might be to make no award of exemplary damages where there was a guilty and an innocent party. If it is wrong that tha t a whol wholly ly innocent party part y shou should ld have to pay the fine for the guilty one, it is also wrong that a party only one-tenth guilty should have to pay the whole. Here the case was not such that the meaning of the words complained of was so obvious that it could be inferred that the publishers knew it. In any event, such a case would have to be the subject of a very careful direction to the jury. It is accepted accepted that  Rookes v.  Barnard stated the law different differently ly from from what it was previously thought to be and that the House of Lords was deliberately and consciously trying to analyse the decisions on exemplary damages so as to reduce the scope of what it regarded as an anomaly to a limited limited class of of case. The House of of Lords Lord s was exercisi exercising ng its proper functi function on in examining examining the law law in detail with with a view view to stating it. The principle activating the House was that the plai plaint ntif ifff must be ful fully ly com  pensat  pensated ed for for every everyth thin ing g that we went nt to inju injury ry but that, once once that wa wass achieved, the circumstances in which punishment should be added should  be kept in narrow narrow conf confin ines es becaus becausee (a) (a) punish punishmen mentt is not normal normally ly the function function of the the civil law and (b) (b) the award of compensation to the th e  plai  plaint ntif ifff woul would d itse itself lf amount amount to some some measure measure of of punish punishmen ment. t. In that case case  E. Hulton & Co. v.  Jones  [1910] A.C. 20 was irrelevant because it had nothing to do with with punitive damages, whil whilee Ley v.  Hamilton  (1935) 153 L.T. 384 was before the House and cannot have been ignored per incuriam. Lord Devlin explained that case and   Loudon v.  Ryder  [1953] 2 Q.B. 202 202 was overruled. The argument in  Rookes V.  Barnard   [1964] A.C. 1129, 1159-1164 is significant. There were always two things for which exemplary damages could be awarded: awar ded: (a) aggravation aggravation of the compensation compensation due and (b) (b) punishment. punishment. All the House of Lords did on that point in   Rookes v.  Barnard  was   was to recognise the two elements and say that they were separate and should  be dealt with with separa separatel tely, y, because because mitig mitigati ation on whic which h may may reduce reduce the puniti punitive ve

1036 Broome Broome v. Cassell Cassell & Co. (H.L.(E.) (H.L.(E.) )

[1972]

side cannot reduce reduce the compensatory side. The injury done to the plaint plaintiff iff . may aggravate aggravate the damages. damages. Circumstances Circumstances may may mitigate mitigate the punitive damages. damages. The foll follow owin ing g points emerge: (1) Before  Rookes v.  Barnard   the law with regard to exemplary damages was was confus confused ed and fraught with with anomalies. (2) No court had previously attempted any analysis of the position. The House of Lords wa wass entitled entitled to do so and and did so. (3) No one could could suggest suggest that the three categories laid down by Lord B Devlin Devlin at pp. pp. 1226-1227 1226-1227 were were wrong. wrong. The The only only question that tha t can be raised is whether there are or ought to be more categories. (4) Whether the limitation limitation to the the categories was right or wrong, one can extract from from the case case the follow following ing proposi prop ositio tions: ns: (a) that the plain plaintif tifff must be the victim of punishable behaviour; (b) that the award should not be greater than the fine would have been if the conduct were criminal; Q (c) that the appellate courts should see that the power to punish is exercised with restraint and can decide for themselves what punishment is reason able;  i(d) that the jury must be specifically warned in each case against double counting; (e) that what in the past has been lumped together under various appellations really comprises two distinct categories—compensatory damages, aggravated aggravated or otherwise, and punitive damages. These proposi tions are correct and desirable, whatever whatever may may be the position position with with regard D to the categories of cases where an award of punitive damages is allowed. Just as there must be some relation between the sort of damages awarded for defamation and physical injury, so if criminal courts are awarding fines of £10,000 only for the most serious injuries, the civil courts should should keep pace with with them. If the criminal courts are awarding awarding fines fin es for malicious malicious damage damage to property in a certain certain broad range, then, if civil civil g courts award ten times that amount in damages, damages, they they are wrong: wrong : see see 1129, 1227-1228 1227-1228.. As to excessiv excessivee dam  Rookes v.  Barnard  [1964] A.C. 1129, ages, see  McCarey v. Associated Newspapers Ltd. (No.  2) [1965] 2 Q.B. 86, 101; Broadway Approvals Ltd. v.  Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805, 818, 818, 821; Fielding v. Variety Incorporated  [1967]   [1967] 2 Q.B. 841,  850-851,  854-855 and   Mafo v.  Adams [1970] 1 Q.B. 548, 554-555. F As to directing a jury in accordance with   Rookes v.  Barnard, see  Manson v. Associated Newspapers Ltd.  [1965] 1  W.L.R. 1038, 1040-1041. It is diffi difficu cult lt for a jury to segregate in their minds minds the evidence evidence against against one defendant which which is not admissible admissible against another. Unless Unless the true test is that, once a tort is established, no matter what the evidence, the  jury  jury are free free to aw awar ard d exem exempl plar ary y damag damages es,, it must must fol follow low that the jury G must be instructed instructed in what what case casess they they are fre freee to do so. The jury must  be told told to cons consid ider er what what sum is enou enough gh to comp compen ensa sate te the plai plaint ntif ifff for everything, including injury to his feelings, and that then they must ask themsel themselves ves whether whether that is enoug enough h to punish punish the defendant. defendant. Once the diffi difficu cult lty y of translat translating ing injured feelings feelings into money has been overcome, there is no further diffic difficul ulty ty in adding punitive damages. In splitting the „ damages, double counting must be avoided and the jury must be warned that the damages awarded as compensation may be enough to punish the defendant and provide an effective deterrent, however heinous his conduct.

1037 A.C.

Broome v. Cassell Cassell & Co. (H.L.(E.))

The object of punitive damages is to punish and deter the defendant, not " others. The applicability of   Rookes V. Barnard in Australia came before before the Consolidated Press Ltd. V.  Uren  [1969] 1 Privy Council in Australian Consolidated 612, 634, 637, 642. See the judgments in the High Court of of A.C.  590, 612, Australia in  Uren v.  John Fairfax & Sons Pty. Ltd.  (1966) 117 C.L.R. 118,  126-127, 129 et seq., 143-144, 148-149, 156 et seq., 158-159. g  [1953] 2 K.B. 202 202 was was the only only reported case where where Loudon v.  Ryder  [1953] there was a specific split between punitive and compensatory damages: at pp. 207-208 Singleton L.J. was almost indicating the course which  Rookes v.  Barnard foll follow owed. ed. The Court of of Appeal held held that tha t there was was no fault in the summing-u summing-up p and that the split split was acceptable. The  practical  practical reason reason why it is desira desirable ble to split split the damage damagess is that if a case case goes to the Court of Appeal the court cannot know what the jury thought, C e.g., whether they they wished wished to punish the defendant. Exemplary damages can still be given for trespass or assault by government servants or against Rachman-type landlords assaulting tenants. In  Kelly v.  Sherlock   (18 (1866 66)) L.R. L. R. 1 Q.B. 686, 686, 697-698 it looks as as though then, so far far as libel was concerned, concerned, the the courts were still still treating damages as limited to aggravated compensation and not extending to punitive D damages.  Hulton's case [1909] 2 Q.B. 444, 444, 445, 448, 450, 457, 457, 476; [1910] A.C. 20, 20,  23, 24 is not an authority on exempl exemplary ary damages. There is nothing to indicate that either counsel or the trial judge had in mind elements of recklessness recklessness or punishment. Nor is Ley v.  Hamilton  (1934) 151 L.T. 360,  364, 364, 368-369, 374; (19 (1935 35)) 153 153 L.T. L.T. 384, 386. 386. The The expressions " aggravat aggravated ed " and " puni pu niti tive ve"" were there used used without any attempt to E distinguish distinguish them. That Tha t case does not confl conflict ict with  Rookes v.  Barnard. To say that damages are " at large " is in contrast with cases where the  pl  plain aintiff must must prove prove act actual ual loss loss.. It means means that he is not limi limite ted d to what what he has demonstrated that tha t he has lost. lost. Thus in a newspaper newspaper case the  jury  jury coul could d take into acc accou ount nt its wi wide de circul circulat atio ion. n. Lord Atkin's use of the expressions " at large" and " real" damage should be read in this  p ligh light. t. In act action ionss for for negl neglig igen ence ce damage damagess are at large. large. There is one one  judg  judgme ment nt but the judg judgee regu regula larl rly y speci peciffies £X for for agre agreed ed spec specia iall damage damages, s, £Y for loss of earnings and £Z for general damages. The problem regarding  Rookes v.  Barnard is : (1) (1) Since Since on any view view it is open to the House of Lords to interpret that case, should it overrule it if if it can? (2) (2) If it were minded to do so: (a) was that tha t decision decision delivered delivered  per incur incuriam iam,, so that that course course could could be taken taken apart from the practi practice ce G direction of of 1960? 1960? (b) If If the the decision decision was not delivered per incuriam does the practice direction direction enable the House to overrule it? (c) (c) If If so, is the case one which should be overruled? The House of Lords should not depart from the  Rookes v. Barnard categories categories because: beca use: (1) (1) Punishment Punishment by a judge and jury in a civil civil court should be strictly confined because the defendant is robbed of the proJJ tection accorded by the criminal law, law, the functi function on of which which is to deal with punishment in the follow following ing respec res pects: ts: (a) the benef benefit it of the burden of proof proof in criminal cases; (b) the right to t o call witnesses witnesses if a submission submission of "no evidence" fails; (c) the presentation of the case both on guilt

1038 Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.( E.))

[1972]

and punishment on a dispassionate basis by the prosecution; (d) the absence from the criminal law of a discovery of documents procedure; (e) the right not to say anything which will go to punishment until guilt has been established; (f) the right to appeal against conviction or sentence or both, of which a civil defendant would be deprived if there could not be split awards; (g) the right to have the punishment determined by the judge and not the jury; (h) the benefit of the Judges' Rules. (2) (2) To allow punitive damages damages is to encourage plaintiff plaintiffss to go on JJ gold-digging expeditions and in jury awards involves great danger of wholly inconsistent standards by comparison with the damages awarded for very grave personal injuries. (3) So far as the second category in  Rookes V. Barnard   [1964] A.C. 1129, 1226-1227 is concerned, there must be present both the basic elements (a) knowledge of the falsehood or recklessness and (b) continuance of the libel because because of of an assess assessmen mentt that t hat the gain gain will will outwe outweigh igh any possible C damages. Otherwise Otherwise in the absence absence of of the firs firstt a defendant defendant could be be  punis  punishe hed d merel merely y for bein being g wrong wrong and in the absen absence ce of the seco second nd mere mere knowledg knowledgee of of wrongdoing wrongdoing would would be enough. The two together, con con stituting an attempt to profit from a known wrong, are necessary if the  is to be kept within matter  is within reasonable reasonable bounds. (4) (4) Some Some cla clarifi rificat cation ion was needed. The House of Lords gave it and  Q to depart from it can only lead to a weakening of the certainty which is one of the great strengths of English law, once the House of Lords has  pronou  pronounce nced d on the law. law. (5) To go back to  pre-Rookes v.  Barnard   days would be to go back to confusi confusion on as to the tests and to t o a syste system m under which which apparently apparent ly anything which aggravated the injury would automatically justify  punish  punishmen ment. t. E (6) (6) Though that case has been been criticised criticised for trying to t o lay down down categories, in fact it lays down principles of general application rather than leaving the matter with no basis of principle under which for some torts there can be awards of punitive damages and for others there cannot. (7) The decision was not reached reached per incuriam. incuriam. As to the practice practice direction direction of of 1966 1966,, it is not desired desired to argue its p validity, but it was not an action of the House of Lords in its legislative capacity capacity nor yet in in its judicial judicial capacity. One cannot get rid of the whole whole doctrine of precedent by a practice direction. But, if the House of of Lords Lord s wishes to do something, no one can stop it being done.  Rookes v.  Barnard   correctly distinguishes between "punitive" dam ages, ages, on the one hand, hand , and " compensatory," including including " aggravat aggravated ed " damages, on the other. It is correct for for juries to split the damages damages and G  presen  presents ts no great great diff ifficul iculty ty wher wheree there is one defend defendant ant.. But it may may cause difficulties where there are joint defendants. The relevant authorities are:  Heydon's case, 11 Co.Rep. 5a;  Clarke v. (1847) 1 Ex. 131, 139; 139;  Hill v.  Goodchild   (1771) 5 Burr. 2790;  Newsam  (1847)  Dawson v.  M'Clelland  [1899] [1899] 2 Ir.R. Ir. R. 486, 486, 490, 490, 496-497, 498, 498, 501; Greenlands  Ltd. v.  Wilmshurst   and London Association for the Protection TT of Trade [1913] 3 K.B. 507;  Smith v.  Streatfeild   [1913] 3 K.B. 764, 764, 769;  Chapman v.  Lord Ellesmere  [1932] [1932] 2 K.B. 431, 471-^72. The relatively innocent defendant is not to be made to suffer for the

1039 A.C.

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guilty guilty defendant. The plain plaintif tifff must have the right to recover compensation from from all the defendants defendants for his injury, injury, but for for damages damages for insult insult and the like he must go go against against the guilty guilty defendant defendant alone: see  Halsbury's  Laws of England, 3rd ed., vol. 11 (1955 (1955), ), p. 223, para. 391, where there was relied on Exchange Telegraph Co. Ltd. v. Gregory & Co.  [1896] 1 Q.B. 150 150,, 151, 153. See also  Mayne on Damages,  12th ed. (1961),  pp. 164-165, para. 175. The matter of of a libel libel action against joint defendants defendants was dealt with with in Australia in  Dougherty v.  Chandler   (1946) 46 S.R. N.S.W. 370, 372, 373-374, 378: see also  Egger  v.  v. Viscount Chelmsford  [1965]   [1965] 1 Q.B. 248, 262-263 which was adopted in Gatley on Libel and  Slander,  Slander, 6th ed. (1967),  p. 606, para. 1390. When two defendants are tried jointly the evidence called against one might be used to inflame inflame the jury generally. One solution might might be that only evidence evidence against both should should be admissible. admissible. That woul would d give give the innocent defendant complete protection. protection. But there might might be diff diffic icul ulty ty if there were no common evidence. Suppose a case in which the total damages awarded are £6,000, the  jury  jury inte intend ndin ing g £1,0 £1,000 00 agains againstt A and and £5,0 £5,000 00 again against st B, the the high higher er sum sum  bein  being g in respe respect ct of aggrav aggravati ation on or puni punishm shment ent.. A migh mightt be forc forced ed to pay the whol wholee sum and, if if he could could get contribution contribution against B, he woul would d  be left eft to take take his his chance chance of so reco recove veri ring ng it. Whe When one is deal dealin ing g wi with th  punish  punishmen ment, t, that that is basi basica call lly y unsou unsound. nd. If a plaintiff sued two defendants separately for libel and the actions were later consolidated under section 5 of the Law of Ubel Amendment Act 1888 the result result could could be that there might be an apportionment of £X damages damages against A and £Y against against B. Again, ifif one of three thre e joint defendants defendants pays money into court, if if that is accepted accepted it ends the action action against him and he is unaffe unaffecte cted d by the damages awarded against the other defendants. The effect of   Rookes V. Barnard is that th at if, as here, one is dealing with with  purel  purely y punit punitiv ivee damage damages, s, in justice justice and comm common on sens sensee the proper proper thin thing g to do is to award the appropriate punishment against each defendant. Noth Nothin ing g in law law preve prevent ntss that course course fro from bein being g taken. taken. If there is now a distinction between compensation and aggravation, then a fortiori there must be a distinction distinction betwee between n compensation compensation and  puniti  punitive ve damage damages. s. The poli policy cy of the law law in rega regard rd to punitive punitive dama damage gess is to teach the defendant defendant that tort does not pay. Therefore nothing nothing in  Haydon's case, 11 Co.Rep. 5a, applies to punitive punitive damages. damages. They can  be awa award rded ed agai agains nstt the guil guilty ty party alone. alone. It is acc accor ordi ding ng to the poli policy cy of the law if each defendant defendant is punished punished according according to his guilt in one aotion. In the case of a claim for contribution by one joint tortfeasor against another under section section 6 of the Law Reform (Married (Married Women Women and Tort T ort feasors) feasors) Act 1935 1935 in respect of of punitive damages one would be in the realm of of fantasy. fantasy. Suppose Suppose a lump sum were were awarded, although although there were differe different nt degrees of guilt, and tortfeasor tortfeasor A, having paid the full full sum, claims contribution from tortfeasor B, the recovery of half the sum he has paid would defeat the policy of the law if A were the more guilty of the two.

1040 Broome Broome v. Cassell Cassell & Co. (H.L.(E.) (H.L. (E.)))

[1972]

In the present case the summingsumming-up up was was defectiv defective. e. The jury were not directed that they could award exemplary damages if, but only if, the sum " awarded awarded as compens compensatio ation n was inadequate to punish the defendants. defendants. Nor were they told that the sum awarded as exemplary damages must be the lowest for which either of the defendants could be held liable on that score, i.e., i.e., the highes highestt common common factor. They were only told that the th e damages damages should should be reasonable. They were were not told that tha t the case of a  book  book is diff diffeerent rent from that of a newsp newspape aper, r, sinc sincee the sale sale of a book is B stopped by a successful action, The damages were were excessi excessive. ve. A fine fine of £25,000 £25,000 was was not reasonable  punis  punishme hment nt when when the comp compen ensa sati tion on wa wass only only £15, £15,00 000. 0. A total sum of £40,000 was more than was necessary to punish or deter the defendants. This case cannot be compared with that of John Bloom who caused near rum to hundreds of people and was fined fined £30,000: " The Times " news news  paper,  paper, Oc Octo tobe berr 11, 1969. 969. The Benham v. Gambling [1941] A.C. 157 point c was considered in Rookes v. Barnard. A claim claim for for exemplary damages should be pleaded because because the defendant is entitled to know that he is being charged with matter which  just  justif ifie iess them. them. It is a specific char charge ge and ca call llss for for the high highes estt degr degree ee of discovery. discovery. The basic rule is that all the facts facts relevant to the claim claim must must  be pleade pleaded. d. The fact fact that a thin thing g is releva relevant nt does does not nece necess ssar aril ily y make make J J it disclosa disclosable. ble. It is not disclosable disclosable if it is not pleaded. What the parties parti es must disclose disclose are documents relevant relevant to the th e issues issues in the action. " Rel R elev evan ant" t" means the facts facts on which which the plai plaint ntif ifff is entitled entitled to rely. But if he does not choose to rely on them, they need not be disclosed. On the evidence it cannot be said that the appellants knew of the libel, but thought that their profits would outweigh any damages awarded. 117 GL.R GL .R.. 118, 118, is the E  Robert Alexander   following.  Vren's  case, 11 only case in which  Rookes v.  Barnard   [1964] A.C. 1129 has been reject rejected ed in the Commonwe Commonwealth alth.. In Canada there ther e has been a tendency tendency of late not to follow it, on the ground that the categories are not part of the law of Canada, but there has been no analysis of the   Uren type and no refusal refusal to fol follo low w it on the grounds there set out. The criticism criticismss have  been  been limi limite ted d to the ca cate tego gori ries es and and there there has been been no rejection of the disdis- p tinction betwe between en aggravated aggravated and exemplary damages. In the United States the law law regarding regarding libel is quite different: different: see  New York Times v. Sullivan (1964 (1964)) 376 U.S. 254. There Ther e is no well-set well-settled tled doctrine doctrine of punitive damages. damages. In Australia   Johnson v. Stewart   [1968]  S.A.S.R.  142 followed  Rookes V.  V. Barnard.  Rookes v.  Barnard  has not been been rejected rejected in New Zealand Zeala nd::  Truth (N.Z.) Ltd. v. Bowles [1966] N.Z.L.R. 303, 304, 307; Greville v. Wiseman G [1967] N.Z.L.R. 795; Fogg v.  McKnight   [1908] N.Z.L.R, 330, 331, 332. The relevant Canadian cases are McElroy v.  Cowper-Smith and   Wood man  (1907 (1907)) 62 D.L.R. D.L.R . (2d) 65, 66, 74;  McKinnon v.  F. W. Woolworth Co.  Ltd.  (1968) 70 D.L.R. (2d) 280, 289-290:  Bahner  v.  v . Marwest Hotel Co.  Ltd. (196 (1969) 9) 6 D.L.R. (3d) (3d) 322, 329; (1970) (1970) 12 D.L.R. (3d) 646; (1969) 6 D.L.R. (3d) (3d) 531. In  Gouzenko V.  Lefolii H Fraser  V.  Wilson (1969) (1967) 63 D.L.R. (2d) 217 (compare  Denison v. Fawcett (1958) (1958) 12 D.L.R. (2d) 537) and  Eagle Motors  (1958)  Ltd. v.  Makaoff   [1971] 1 W.W.R. W.W.R. 527 527  Rookes V. Barnard was not followed. followed. It was foll follow owed ed in   Kirisits v.

1041 A.C. A

 

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Broome Broome v. Cassel Casselll & Co. (H.L.(E.))

 Morrell (1965) (1965) 52 W.W.R. 122; Schuster  V.  V. Martin (1965) 50 D.L.R. (2d) 176;  Sharkey v.  Robertson  (1969) 3 D.L.R. (3d) 745;  Amos v.  Vawter (1969) 6 D.L.R. (3d) 234.  Wasson V.  V. California Standard Oil Co. (1964) 47 D.L.R. (2d) 71 fall precisely within the second category in   Rookes v.  Barnard. In the United States, Massachusetts, Louisiana, Nebraska and Washing ton have no punitive damages at all. In New Hampshire and Michigan Michigan what are calle called d exemplar exemplary y damages are really really aggravated aggravated damages. In Con necticut the limit of of punitive damages is the cost of of the t he litigation. litigation. As to  puniti  punitive ve damages damages,, see see McCormick's Law of   Damages (1935), pp. 278-279 and   Prosser   on Torts, 3rd ed. (1964), (1964), pp. 9-12. As betwee between n joint defen defen dants dants split awards are allow allowed ed in 15 States. As to the problem problem of of joint defendants, see Washington Gas Light Co.  v. Lansden (1898) 172 U.S. 534. The law of damages is not well settled in the United States:   Rosenbloom v.  Metromedia Inc.  (1971 (1971)) 403 U.S. 29, 55, 58, 82. 82. See also " Punitive Damages in Tort Cases" by Clarence Morris (1931) 44   Harvard Law  Review 1173,1175,1188. In the Commonwealth cases there is no suggestion that   Rookes v.  Barnard  is unworkabl unworkablee or produces injustice. injustice. The law of of the United States on damages is so different from ours that it cannot be said that the law of punitive damages is well well settled settled and and contrary to  Rookes v.  Barnard.  David Hirst Q.C., Andrew Bateson Q.C. and   M. G. Tugendhat   for the respondent. The respondent's fundamental fundamental submission submission is that the  jury's awa award rd of dama damage gess wa wass a proper awa award rd,, give given n on a proper direct direction ion  by the judge, judge, and shou should ld not be distur disturbed bed.. The amount amount wa wass proper, proper, whether regarded as two separate sums or as one global award and whether  Rookes V. Barnard  [1964] A.C. 1129 was right or wrong. The The facts facts fit fit squarely squarely into category category two of that case. There was was material before before the  jury to entitl entitlee the respon responden dentt to exemp exempla lary ry dama damage gess under under that cat categ egory ory.. The judge's direction to the jury was in order. The jury had (before them the book   itself. There was was evidence evidence that the appellants knew the nature of the respondent's complaint at the time they publish published ed it. Here alone was ample material from from which which they they could draw the infe infere renc ncee that the matter matter fell fell wi with thin in cat catego egory ry two. two. In the correspondence there was evidence of the motives of the appellants and the author. It is comm common on grou ground nd that tha t the onl only y questio question n on appeal is: " was there material on which the jury could properly make the relevant finding?" The Th e imputations against against the respondent shou should ld be regarded as a whole. whole. One is entitled entitled to assume the worst against the appellants. appellants . There were manifest manifest libels libels in the th e book which which they must be infer inferred red to have known known were were libels. They are to be assumed assumed to be intelligen intelligentt publishers. Any such publishers on the material they had before them would have known known the passages passages complained complained of to be untrue. There Ther e was enough enough to  put even even a stup stupid id publ publish isher er on inquir inquiry. y. The appellan appellants ts publ publis ishe hed d the  book  book afte afterr another another publis publisher her had reject rejected ed it as being being too danger dangerous ous.. The " Iblu Iblurb rb " on the th e dust cover shows shows that tha t they must have known what the book book meant. They knew that tha t it had been been read by by an eminent naval historian who had condemned its factual content, but they never approached him. The jury were entitled entitled to draw draw the infere inference nce that the appellants thought that they would get away with the publication, and that they

1042 Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E.) )

[1972]

knew the book book fal falsi sifi fied ed the the order orde r of events. The charge of of cowardice . wass not the jury's only wa only basis basis for for awarding exempl exemplary ary damages. damages. All the other passa passages ges were were put to them. them. The jury also also concluded concluded that the appellants regarded a libel action as valuable in promoting the sale of the book. In default default of any explanation explanation by by the appellants who who call called ed no evidence, the jury were entitled to draw these inferences against them. The particulars of justification did not suggest either the truth of the words or the innuendoes. innuendoes. Yet the appellants appellants publis published hed the hard back edition edition B of the book after the respondent had commenced his first action and after delivery of their defence. defence. The evidence evidence indicates that the appellants were reckless and must have known that the words have the meanings alleged, yet went ahead, knowing that they could not justify them and  beli  believ evin ing g that the libe libell act actio ion n woul would d boost boost their their sale saless and prof profit its. s. So far as the  Rookes v.  Barnard   [1964] A.C. 1129 categories are concerned, concerned, one cannot cannot find fault fault with with the summing-u summing-up, p, if if that th at case lays ^ down down the correct criterion. It complied with the directions laid down, down,  partic  particula ularly rly as regar regarde ded d the " if, but only only if," direc directi tion, on, whic which h had been been referred to by counsel in his his speech before the summing-up. Further Furt her,, the " if, if, but b ut only if," if," direction in Rookes v. Barnard,  though of high authority, is in fact obiter and, if it were omitted from the summing-up, it would not  be fat fatal. al. The judge judge mod model elle led d Ids Ids dire directi ction on on that in Manson's case case [1965] [1965] j ) 1 W.L.R. 1038 1038.. The jury's answer answerss to the questions questions show show that they did did not regard the £15,000 as adequate punishment and so they were entitled to award award an additional sum sum for for punitive damages. damages. The jury were were entitle entitled d to express the view of society at large on the appellants' conduct and the court should not usurp their function and reduce the figure. The judge's direction indicated that the sum awarded as compensation was to be taken into account in assessin assessing g the punitive damages. It also adequately indicated indicated E that the exemplary damages awarded against  two> joint defendants must be limited limited to the highest com commo mon n factor. factor. There There are cases in whic which h the com  pensat  pensatory ory and and aggr aggrav avat ated ed dama damage gess migh mightt be smal smalll and and the punit punitive ive dam dam ages large; the sum must be fixed in the circumstances of the particular case. In principle principle an appellate court should should not interfer interferee with with the figure figu re of compensatory compensatory or punitive damages unless unless the verdict is one p which which 12 reasonable juryme jurymen n could could not have have arrived arrived at. a t. There Ther e is no case case where where the court has has applied applied a narrower narrower test. It applies to exempl exemplary ary as well as to compensatory damages. In assessing exemplary damages the jury are properly entitled to take into acc account ount:: (a) the status of the plaintiff; (b) the extent of the defendant's wrongdoing, wrongdoing, i.e., the the flagra fla grancy ncy,, seriousness, and offens offensive ivenes nesss of the libel and the extent to which which the defendant defendant knew it was untrue; untrue ; (c) (c) the extent extent to G which which it was apparent apparent tha thatt a plea of justification must mus t fail; (d) the defen dant's dant' s attitude from from publication till till the end of of the trial. Further, Furthe r, in fixin fixing g the sum required to punish, they must have regard to the conduct, attitude and means of the defendant. In  Youssoupofl v. Metro-Goldwyn-Mayer Pictures Ltd., 50 T.L.R. 581, 584, 588, the jury awarded £28,000 £28,000 at the the 1934 1934 rate rat e of exchange. exchange. The H Court of of Appeal upheld upheld the principle principle of of punitive damages damages.. The case case illustrates the attitude of an appellate court to a jury's verdict. In Mechanical and  General  V. Austin  General Inventions Co. Ltd. and Lehwess V.

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.( E.))

[1935] A.C. A.C . 346, 357, 37,1 37,1.. 372, 373, 377-378 and Austin Motor Co. Ltd. [1935] it is relevant that the jury aw awarded arded £35, £35,000 000 damages, the Court of of Appeal App eal reduced the sum to 40s. and the House of Lords reinstated the jury's finding. Other later cases indicate no weakening of the principle that the verdict of the jury must stand unless it is wholly beyond the bounds of reason: see Bocock  v. Enfield Rolling Mills Ltd. [1954] 1 W.L.R. 1303, 1303, 1305 1305 and   Scott  v.  Musial  [1959] 2 Q.B. 429;  Lewis v.  Daily Telegraph  Ltd. [1963] 1 Q.B. 340, 340, 381, 395, 408; [1964] A.C. 234 (whic (which h was was manifestly a case where the jury went wild); Morey v.  Woodfield (No. 2)  Note [1964] 1 W.L.R. 16, 16, 17-18, 21, 22; McCarey's  case [1965] 2 Q.B. 86,  110; Broadway Approvals Ltd. v. Odhams Press Ltd. (No.  2) [1965] 1 W.L.R. 805, 818-819, 820;  Ward  v.  James  [1966] 1 Q.B. 273, 300. On this line of cases the principle stands firm as stated by Lord Esher M.R. in  Praed  v.  v.  Graham  (1829) 24 Q.B.D. 53. There is nothing in the summing-up which could lead the jury to an award which would militate against freedom freedom of speech. If the words were defamatory and untrue, freedo freedom m of speech speech does not arise. Everything which which aggravates or mitigates the defendant's conduct is relevant. There was no misdirection on that. This Thi s was a very bad, gross and offe offens nsiv ivee libel. libel. The appellants appel lants'' conduct was as bad as it could could be. The book's dust-cov dust-cover er made it clear clear that they not only understood understood the th e libel libel but were trading on it. There was no apolog apology y or expression of of regret. Though there there was nothing offe offens nsive ive in the conduct of the t he trial, tri al, the t he plaint plaintiff iff was crosscross-exami examined ned for two and a half days on the " disobedien disob edience" ce" aspect aspect of of his behaviour. behaviour. There was was no attempt to show show that th at he h e was responsible responsible for the t he loss of the th e convoy. convoy. As to quantum, the correct approach here is to look at the whole £40,000 because the jury must be assumed to have taken it as the proper sum which which the defendants defendants should pay. If the th e global global figure fig ure is correct the  proportion  proportion whic which h ea each ch of the other other sums sums bore to the other other is irrelev irrelevant. ant. If one looks looks at the separate figure fig uress the £15,00 £15,000 0 must be assume assumed d to t o be the th e full full figure figure for the aggravated damages. Why were the punitive punitive damages damages so much more? On the summi summing-up ng-up the aggravated damages damages were limited to the hurt hur t and injury injury caused caused to the th e respondent's feeling feelings. s. None of of the factors making for exemplary damages came into that, since the judge followed   McCarey's case [1965] 2 Q.B. 86. The jury were entitled to notice that the appellants were very substantial publishers who, as shown on the flyfly-le leaf af of the t he book, had substantial interests throughout throughou t the t he ComCommonwealth monwealth and, to conclude from the correspondence, that th at they anticipated making very substantial substantial profits. profits. Having regard to the serious seriousness ness of of the libel, the jury were entitled to conclude that a very substantial award of damages was appropriate to deter them and to express on behalf of the  public  public disapp disapprova rovall of their their conduct conduct.. Unle Unless ss sums sums in this range range were were right right outside the purview of libel juries, it could not be said that this sum was inappropriate. As for the author, the jury were were entitled entitled to conclude conclude that his conduct merited grave punishment to mark disapproval of an author who was not an impoverished young man but a prolific writer who had  produc  produced ed more more than one one succ succes esssful ful book.

1044 Broome v. Cassell & Co. Co . (H.L.(E.) )

[1972]

If it be held that the respondent falls within the second category in [1964] 4],, A.C. 1129 1129,, it is not no t desired to attack that case. A  Rookes v.  Barnard [196 Assuming that category two stands up, then, on its proper construc tion, the principle applicable is broad, that of a defendant who knowingly and deliberately or for some other wrong motive commits a tort in order to secure some advantage for   himself. That Tha t would would be full fully y in accordance with the object of teaching a wrongdoer that such conduct does not pay. " P a y " goes goes beyo beyond nd mone money. y. B Category Category two two shoul should d cover cover more more than material advantage. The test should cover a malicious or wrong motive, high handed or oppressive conduct, undertaken for for advantage, material or otherwise. otherwise. A great corporation might deliberately seek to ruin a small competitor, whose competition was so small that there was no measurable material ad vantage in doing doing so. That would would be a gross gross misuse misuse of power power and should should p  be covere covered d if the law law seek seekss to discou discourag ragee such such action. What What Lord De Devl vlin in said in regard to the second category [1964] A.C. 1226-1227 was illustrative and not confini confining. ng. In some some of of the case casess he cited cited there ther e was no balance of of  prof  profit it agai agains nstt damages:  Bell v.  Midland Railway Co.  (1861 (1861)) 10 C.B.N.S. 287, 304, 307, 308; Williams v.  Currie (184 (1845) 5) 1 C.B. 841, 84 1, 847, 848;  Crouch V. Great Northern Railway Co.  (18 (1856 56)) 11 Ex. 742, 759. 759. Under category two any balancing of of potential profit against potential damages was only only D intended by Lord Devlin as an illustration and is not a necessary ingredient. Calculation need not be shown. shown. It is enough enough to show show by the evidence evidence or  by proper infer inferen ence ce from from the evi evide denc ncee that the defenda defendants nts acted acted delibe deliberat rately ely and with knowledge of the falsehood and that the words bore the  the defamatory meaning meaning contended contended for. If they then went ahead it would would be a proper inference inference from from those facts that they did did so for for an advantage adv antage and therefore came within within category category two. However, in the present case that last inference is not needed, because there is evidence that the appellants reckoned that the publication of the  book  book woul would d be good good publi publicit city y and so woul would d the threat of a libel libel act action ion.. If the fact that a publisher thought he might get away with it took the case out of category two, that would be an undesirable state of the law, since since it would would encourage people to libel the poor and the meek. F Alternatively, if these submissions as to the ambit of category two are wrong, and it is to be construed normally, it conflicts with earlier authorities. author ities. There has been been put in the plaintiff's plaintiff's path a narrow gateway gateway which should not be there:  Anderson v. Calvert  (1908)   (1908) 24 T.L.R. 399, 400;  Hulton's  cas casee [1909] [1909] 2 K.B. 444; [1910] A.C. 20, 23, 24-25;  Greenlands' case [il913] 3 K.B. 507; the  Yousoupoff  case,   case, 50 T.L.R. 581; English and Q Scottish Co-operative Properties Mortgage  and Investment Society Ltd. v. Odhams Press Ltd. [1940] 1 K.B. 440, 455, 457-458, 461-462;  Rook  V. 515-516, 517; Bull v.  Vazquez  [1947] L.J.R. Fairrie [1941] 1 K.B. 507, 515-516, 551, 553-554;  Leachinsky V.  V. Christie [1946] 1 K.B. 124, 124, 141-142; [1947] A.C. 573. Above all it conf conflic licts ts with two previous House of of Lords Lor ds decisions. decisions. Lord Loreburn's speech in  E. Hulton & Co. V.  Jones [1910] A.C. „ 20, 20,  24, 25, clearly upholds the principle of exemplary damages and was concurred in by the other Law Lords. The true basis of   E. Hulton & Co. v.  Jones  [1910] A.C. 20 appears

1045 A.C.

Broome Broome v. Cassel Casselll & Co. (HX.( (H X.(E.) E.)))

more clearly from the Printed Case submitted to the House of Lords. Reason Reason 5 in the appellants' ca case se was: was : "Because it was admitted by the respondent by his counsel that the only persons who were the agents or servants of the appellants in writing or publishing the words complained of did not know of the existence of the respondent and did not intend to refer to him." g

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Reason 5 of the respondent's responden t's case was: was : " That it was competent competent for for the jury in determining whether whether the appellants were liable and also in assessing damages to take into their consideration the conduct and evidence of the writer and of the appellants' agents in publishing the libel and to conclude that the writer and the agents or some of mem in fact published the libel of the respon responden dentt and mean meantt to do so.. .." That case was not considered in   Rookes v. Barnard.  Ley v.  Hamilton  (19 (1935 35)) 153 153 L.T. L.T. 384, with which the th e principle laid down in  Rookes v.  Barnard   also conflicts, is important as an authority on punitive damages. In that case the distinction distinction betwee between n aggravated aggravated and  puniti  punitive ve dama damage gess wa wass drawn drawn.. The puniti punitive ve elem elemen entt wa wass expr expres essl sly y left left to the jury. In dealing dealing with with the question question of of exces excessi sive ve damages damages in the Court of Appeal (1934) 151 L.T. 360, 374 et seq. Maugham L.J., when he spoke of " real" damages, meant compensatory damages, including aggravated damages, damages, and, when when he spoke of of punitive, he meant punitive. He drew drew a real distinction distinction between between the two. two. Se Seee also also Greer L.J. at pp. pp . 364 364 and 369. Lord Atkin in the House of of Lords, Lor ds, 153 L.T. 384, 386, 386, wa wass making making the same distinction when he spoke of " real" and " punitive " damages. Lord Devlin's Devlin's interpretation of  Ley v.  Hamilton in  Rookes v. Barnard [1964] A.C. 1129, 1129, 1230 1230 was erroneous. Before the categories in   Rookes v.  Barnard   the tests were wider. Whether or not the motive of profit was in the defendant's mind the court had the weapon of punitive damages available. In  Mason v.  Clarke  [1955] A.C. 778, 796-797, Lord Simonds seems to say say that the making making of a char charge ge of frau fraud d in the course course of the trial trial was no ground for exemplary exemplary damages. damages. There is no reported case where where an action for deceit was made a subject of exemplary damages, though there is no logic in not n ot all allowin owing g them. As to the old principles of exemplary damages, see   Merest  v. Harvey (1814) 5 Taunt. 442, 443; Tullidge v.  Wade (1769) 3 Wils. 18, 19;  Leith v. Pope (1779)  (1779) 2 Wm.Bl. 1327; Sears v.  Lyons (1818) 2 Stark. 317; Williams v.  Currie (184 (1845) 5) 1 C.B. 841; 841 ; Emblen v.  Myers  (1860) 6 H. & N. 54; Pratt  v.  British Medical Association   [1919] 1 K.B. 244. 244.  Rookes v.  Barnard   [1964] A.C. 1129, 1223, 1229 proceeds on the  basis  basis that it is foun founde ded d on authori authority. ty. An appeal appeal to authorit authority y pervad pervades es all the speeches. speeches. Yet no case cit cited ed delineates any of the categories in the th e way way they are delineat delineated ed by Lord Devlin. The categor categories ies are created by by accepting acce pting as authoritative certain aspects of of the ratio rat io decidend decidendii of of certain cases and rejecting others. others. The The categories are constructed by reference, not to statements of principles in the old cases but to certain common features in the facts: fact s: pp. pp . 1223, 1223, 1227 1227.. There is no no reason why why these

1046 Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E. ))

[1972] [1972]

 particul  particular ar featur features es of the old old ca case sess shou should ld be esta establ blis ishe hed d as part of the common common law law when when others were were rejected. The categories categories are proper factors to be taken taken into consideration, consideration, but only only examp examples les of of wider rules. Com Com  pare sect sectio ion n 17 (3) of the Copyr Copyrigh ightt Act 1956 1956..  Williams v.  Settle  [1960] 1 W.L.R. 1072 1072,, 1075-1076, 1075-1076, 1081, 108 1086 6 treats treats the the Act as permitti pe rmitting ng an award of exemplary damages. See also section 13 (2) of the Reserve and Auxiliary Forces (Protection of Civil Interests) Act 1951. It is said that evidence evidence in mitigation mitigation is relevant relevant once one is through the gateway. gateway. Mitigation Mitigation and exemplary damages damages are two sides sides of the th e same coin. In defamation defamation actions, subjec subjectt to givin giving g the proper prope r notices under the rules of court, cour t, the defendant defendant can always always give give eviden evidence ce in mitiga tion, e.g., when one newspaper copied a libel from another and did not invent invent it, or if its conduct was was innocent: innocent : see see sectio section n 4 of the Defamation Defamation Act 1952. 1952. It would would be strange strange if a defendant defendant had an unrestricted right right to  prove  prove in evid eviden ence ce miti mitiga gati ting ng circ circum umst stan ance ces, s, wher wherea eass a plai plaint ntif ifff coul could d only only  prove  prove circ circum umst stan ance cess just justif ifyi ying ng exem exempl plar ary y dama damage gess if he coul could d get get through through the narrow gateway gateway.. The principle principle must cut both ways: see see Constantine v.  Imperial Hotels Hotels Ltd. [1944] [1944] K.B. 693,708. The categories have been strongly criticised in  V'ren's  case, 117 C.L.R. 118. The Court of of Appeal's criticisms criticisms in the present present case are limited limited to the categories. categories. The respondent has similarly similarly limited his his criticisms. Whether or not one likes the suggestion that the House of Lords in  Rookes v. Barnard  acted   acted per incuriam, the categories merit serious reconsideration. Restriction to the categories would shut out from the zone of exemplary damages damages cases cases in which which they are a useful useful weapon weapon in the t he law's armour armoury. y. When a man embarks on a course of conduct leading to a tort from motives of malice to ruin the  plaintiff,  whatever whatever it costs, costs, he is is outside outside any any of of the categories, but it is there that punitive damages are a valuable weapon and should be retained.  Loudon v.  v . Ryder  [1953] 2 Q.B. Q.B. 202 wa wass a correct decisio decision n on its facts facts.. It is out of of line with the proper approach ap proach that t hat it should should be overruled. Exemplary damag damages es are usef useful ul in press, radio or television cases, when it is impossible to establish that the matter comes within category two because it is impossible to isolate a particular part of a larger publication. In a case of a personal vendetta, punitive damages damages would be useful if the jury did not reckon compensatory damages sufficient. In many cases the criminal law affords no protection. In general summary, on the main point this case falls within category two on its proper wide construction. If that is upheld, there is no need to attack category category two. Such Such an attack is a seco second nd line line argument argument only criticising  Rookes v.  Barnard   in that respect and not in any other. As to "if, but only if," if," it is submitted submitted that tha t (1) (1) the summing-up summing-up adequately complied with that direction; (2) the direction which the trial  judge  judge gave gave and the questi questions ons he aske asked d the jury corres correspon ponded ded wi with th the direction in  Manson [1965] 1 W.L.R. 1038 1038;; the defendants defendants put their case on that basis and cannot now criticise the judge for using the same  basis;  basis;  (3) (3) the jury by by awarding more under the exemplary exemplary head than under the compensator compensatory y head show showed ed that they regarded the "if, but only if," if," test as satisfie satisfied; d; (4) (4) it never occurred to anyone to sugges suggestt that th at the jury jury might have intended to award £25,000 £25,000 in all.

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.) (H.L.(E.) )

As to quantum, the whole tenor of the authorities stresses the sacrosanct nature of the award of a jury as the constitutional tribunal to assess damages; this applies both to compensatory and exemplary damages. There has been no suggestion that exemplary damages fell to be treated in any special special way. way. The principle does not all allow ow the House of of Lords to determine its own view of a reasonable figure and treat any divergence theref therefrom rom as unreas unreasonabl onable. e. The proper approach approach is to take the jury's figure figure and ask whether it is beyond beyond all reasonable bounds bound s on the facts as a whole, whether it was completely completely divorced from from reality, reality, If not, it must stand, although the appellate tribunal might itself have awarded quite quite a differ different ent sum. In relation to both defendants defendants the sum sum awarded was well within the bounds of the reasonable and should be upheld. following. ing. In the Court of of Appeal [1971] 2  Andrew Bateson Q.C. follow Q.B. 354, 380 refers to the certain Commonwealth cases in relation to Rookes v.  Barnard  [1964] A.C. A.C. 1120. 1120. The Canadian cases relied on by the appellan appellants ts in which that that authority author ity was follow followed ed were all cases at first first instance. But in  McElroy,  6 D.L.R. D.L.R. (2d) (2d) 65, Spenc Spencee J. in a dis senting judgment held that in Canada the jurisdiction to award punitive damages was not so limited. That That was follow followed ed by the British British Columbia Supreme Court in  Bahner,  6 D.L.R. (3d) 322, and the British Columbia Court of Appeal, 12 12 D.L.R. (3d) (3d) 646, 646, upheld upheld that th at decision decision.. In  Eagle  Motors  (1958)  Ltd. v.  Makaoff   (1970 (1970)) 17 D.L.R. (3d) (3d) 223, 224, 224, 225 225 the the dissenting judgment of Spence J. in   McElroy  was treated as stating the law of Canada in relation to  Rookes v.  Barnard.  Thus the British Columbia Columbia appellate jurisdic jurisdiction tion rejec rejected ted that t hat authority. In  McElroy, 6 D.L.R. (2d) 65, Hall J., expressing the opinion of the majority, accepted the distinction between aggravated and punitive damages. It would would be wrong wrong to say that tha t the majority majority had not considered  considered   Rookes v. Barnard  and   and that tha t Spence Spence J. was was in isolation. isolation. He dissent dissented, ed, not on on the matter of prin ciple but on quantum. From the judgments in  Gouzenko v. Lefolii, 63 D.L.R. (2d) 217, 222223,  an Ontario case, it is plain that the  Rookes v. Barnard  principle   principle was not considered considered to be part par t of the law of Cana C anada: da: see see also Eraser  v. Wilson, 6 D.L.R. D.L.R. (3d) (3d) 531. It is a correct summary to say that in Canada the doctrine of the categories in  Rookes V. Barnard has been rejected. In considering whether or not a jury's verdict is reasonable the prin ciple, as all the authorities go to show, is that the appellate court considers whether the jury has taken into account any factors which should not have been been so so taken. But in  Lewis v.  Daily  Telegraph  Ltd.  [1964] A.C. 234 234 the figure figu re was so so big big that it was not necess necessary ary to look at the factors. In the present case the question of factors was not raised, so the only limitations are those laid down in   Rookes v.  Barnard   [1964] A.C. 1129, 1227-1228. Here there was an appalling libel. An award of of £40, £40,000 000 damages against a well-known author and a successful publishing firm, for such a tort would not be calculated to deter anyone from publishing a true allegation. allegation. Parker Q.C. in reply. Ever since the firs   Gatley on Libel firstt edition of  Gatley  Slander   in 1924 there has been a statement to the effect of para. 1425 and  Slander  on p. 619 of the current 6th edition (1967) that it is the duty of the judge

1048 Broome Broome v. Cassell Cassell & Co. (H.L.(E.) (H.L.(E.) )

[1972]

to direct the jury as to any rule of law which governs the assessment of damages and that, if he does not do so, the court will grant a new trial: see see Knight  V. Egerton  (1852) 7 Ex. 407, 409 there cited. At the trial in this case the case was conducted and the summing-up was framed framed and the defendant defendantss decided decided to call no evidence evidence on the basis that  Rookes v.  Barnard   [1964] A.C. 1129 was good law and that the judge was boun bound d by it. The Th e defendants never tried tried to throw doubts on it. It was in the Court of of Appeal that tha t the plai plaint ntif ifff argued that it was wrongl wrongly y B decided, so as to preserve his windfall of exemplary damages as well as his compensati compensation. on. In the result result the Court of of Appeal held held that it was was wrongl wrongly y decided decided per incuriam. The respondent' res pondent'ss Printed Case in the House of Lords has sought to uphold the Court of Appeal in rejecting the categories. categories. The extra expense expense in in thus opening up the commo common n law of libel stemmed wholly from the respondent's efforts to maintain the windfall on a diff differe erent nt basis to that on which which it had been been awarded awarded against the C appellants. On Rookes v. Barnard  many  many questions questions may arise ar ise:: What is the true inter  pretati  pretation on of the cat catego egori ries? es? Do they they suf sufficien cienttly cover cover the fiel field? d? If they they do not, are there there furth further er cate categor gories ies or none at all? If there are further categories, how how are they to to be define defined? d? If there should should be no categories, what what are to be the essent essential ial elemen elements ts to make make a case case appropriate for an J J award of punitive damages? So far as a s the result of of this appeal is con cerned none of these questions need arise because the decision to call no evidence was reached on the basis that the law applicable was category 2 as interpreted in  McCarey  [1965] 2 Q.B. 86. The categories in  Rookes v.  Barnard   are admittedly not wholly free from from anomalies anomalies in the award of exemplary exemplary damages. But it is also  possi  possibl blee with with great great malice malice to do much much harm to another another witho without ut commi committ ttin ing g E any tort at a t all. It is possible possible to dismiss dismiss a man in circumstances circumstances involv involving ing great humiliation and he would still be limited to his ordinary contractual rights:  Addis v.  Gramophone Co. Ltd. [1909] A.C. 488, Such Such anomalies do not affect the rule in   Rookes v.  Barnard, There would would be others if it disappeared. Category Category one does not apply to this case. So far as the civil civil law is p concerned concerned bullies of of other types than those there described described meet meet their deserts in terms of aggravated damages, or the matter might be left to the criminal law. Category two does not require a precise calculation of profit, but there must be a general weighing up coupled with either knowledge that there is no defence to the libel or indifference whether there is a defence or not, or beli belief ef that tha t the plain plaintif tifff can be frightened frightened off. It cannot cannot be be said G that a defendant has sold a man's reputation for profit unless he has made some sort of reckoning that the gain will outweigh the loss in damages. damages. Profit Profit is necessaril necessarily y arrived arrived at by by a balancing process. But a defendant defendant is not automatically liable to punitive damages because he is a  publi  publishe sherr or a newsp newspape aperr owne ownerr carryi carrying ng on busi busine ness ss for for prof profit it.. There may be circumstan circumstances ces in which which it can be inferr inferred ed that a reckoning has TT taken place. Every newspaper newspaper and book is published published for profit. profit. Somethi Something ng more must be shown to justif justify y punitive damages, damages, i.e. specif specific ic attenti attention on at at

1049 A.C.

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

management level to the problem of omitting a passage from a book or an article fro from m a newspaper newspaper or of leavi leaving ng it in. Here it must be show shown n that the appellants assessed that it would produce a better return to  publis  publish h the book book as it stoo stood d and pay libe libell dama damage gess than than to remo remove ve the  pass  passag ages es comp compla lain ined ed of. Ot Othe herw rwis isee any any deliber deliberate ate libe libell by a publis publisher her must be automatically automatically punishable by by exemplar exemplary y damages. damages. That would would  put libe libell in a clas classs by itsel tselff sinc since, e, for for exam exampl ple, e, most most trespa trespass sses es and and assau assaults lts are deliberate but b ut exemplary exemplary damages are not payable for for them per se. se. In category two there must be a deliberate test for estimate estimated d gain. The assessment must be, not of the risk of losing the action, but of the risk of the damages turning out to be higher than the estimated profit.  No test test has been been sugg sugges este ted d in the House House of Lords to replac replacee the categories. categories. If they were to go, one would would be back with with loose loose overall  princi  principle ples, s, as there there are no other other means means of defi defini ning ng the ca case sess in whic which h an award of punitive punitive damages can be made. To depart depart from from the categories would conflict with  Rookes v.  Barnard. If there were were to to be a departure from it, there would have hav e to be a definitio definition n of principles to guide judges and juries. But it cannot be departed from from because it was not delivered delivered  per incuri incuriam. am. Theref Therefore ore the ca cate tegor gorie iess must must stan stand d unle unless ss they they are to be overruled by virtue of the Practice Direction of 1966 [1966] 1 W.L.R. 1234. The mere mere fact fact (if it we were re a fact fact)) that this this Appellat Appellatee Comm Committ ittee ee woul would d come to a differe different nt conclusion is not enough enough to justif justify y such a step. If that were so there would be no certainty about any decision and that would be contrary to the spirit of the Practice Direction: see  Reg. V.  National Insurance Commissioner, Ex parte Hudson  [1972] A.C. 944.   Rookes v. Barnard  departed Even if  Rookes   departed from long-settled practice, that would not be a reason for overruling it. The House of of Lords Lord s has done so in the past: pas t: see see Perrin v.  Morgan [1943] A.C. 399, 412, 412, 415. As to Ley v.  Hamilton,  153 L.T. 384, if Lord Atkin's remarks about fines fin es were were taken literally, it might be regarded regarded as an authority author ity for the th e  propos  propositi ition on that dama damage gess in libe libell ca case sess shou should ld not includ includee any purely purely  puniti  punitive ve elem elemen ent. t. Before  Rookes v.  Barnard   the purely punitive side of damages had not been been segr segreg egat ated ed.. It woul would d be wron wrong g to create create a situ situat atio ion n in whic which h  puniti  punitive ve dama damage gess depe depend nded ed on whet whether her the judge judge wa wass angry angry enou enough gh to leave them to the jury and the jury were angry enough to award them. The categories under   Rookes v.  Barnard  should should be upheld. upheld. That case defined for the first time what was truly embraced by " aggravated " dam ages,  which depend on aggravating circumstances leading to additional hurt, justifying increased compensatory damages. The "if, but only if," if," direction direction is vital for the avoidance of double counting. counting. That Tha t should should be made plain. There is no misdirection misdirection as long as the t he judge makes makes it plain. As to split awards, if it is accepted that the judge must rule whether there is evidenc evidencee to t o justif justify y a punitive award, then it must be legitimate legitimate to split the damages so that in doubtful cases an appeal can be disposed of without recourse recourse to a new trial. trial . It is not sought to reopen any of the cases decided before or after  Rookes v.  Barnard.  What the House of Lords said about the cases referred referred to therein is adopted. As to the cases cases not referred referred to therein

1050 Broome v. Cassell & Co. (H.L.(E. (H.L .(E.)) ))

[1972]

and now cited in the present case, none but Ley v.  Hamilton,  153 L.T. 384, and  and   Hulton's  case case [1910] A.C. 20 was was binding binding on the House, and  almost all have a high element of aggravation or can be slotted into one or other of of the categories. categories. The additional cases cases cite cited d in the present case do not materially advance die matter or suggest that the House of Lords had overlooked any principle or practice. In finding the necessary facts under category two the burden of proof is that of the balance of probabilities: probabili ties: could could a properly directed directed jury draw the relevant inferences as being the more probable of the available Ltd. [1957] 1 Q.B. inferences? See Hornal v. Neuberger Products Ltd. Q.B. 247, 258, 263. On the evidence evidence the jury should should not have awarded exemplary damages. In the summing-up the " if, but only if," if," requirement requirement was not com  plie  plied d wi with. th. There was was no ment mentio ion n what whatev ever er of the compen compensa sato tory ry dama damage gess  bein  being g taken taken into ac acco count unt.. Great Great relia reliance nce is plac placed ed on  Manson's case case [1965] 1 W.L.R. 1038. 1038. It is the model summing-up summing-up in dealing dealing with the categories. It would be disastrous disastrous if if the the House of of Lords were were to give give any countenance to the idea that if at the end of a defective summing-up counsel does not take a point, which is simply one of misdirection, such as the omission omission of of an " if, if, but only only if," if," direction, he is thereafter pre cluded from from taking the point on appeal. appeal. The direction was also defectiv defectivee on the highest highest common common factor point. point. It should have been made plain that Clark  v.  v. Newsam, 1 Ex. 131, represents the law. law. As to t o quantum, quantum, it is fancif fanciful ul to sugges suggestt that that anything more than £15,000 £15,000 damages was was necessary necessary to deter either of the defendants. At a stroke that could have turned the modest profits expected into a considerable loss. Neither the publishers nor the author nor n or anyone else else would would be incline inclined d to t o do the sam samee thing thing again. again. The publishers publishers we were re less to blame,  but their mea means ns were were great greater. er. As betw betwee een n them them the the high highes estt comm common on fact factor or cannot be anything like £25,000. £25,000. Such Such a sum sum endangers liberty of expres sion in publications from fear something might go wrong.  David Hirst Q.C. Knight  v.  v. Egerton, 7 Ex. 407, cited by the appellants in reply, wa wass not in point here. It dealt with with a situation situation in whi which ch neither neither counsel counsel nor the judge gave gave any indication indication as to the proper damages to the  jury  jury who who made made an aw awar ard d whic which h coul could d be shown to be math mathem emati atica call lly y wrong in principle. The present case is completely completely differ different; ent; the judge frame framed d his questions questions to the jury on Manson  [1965] 1 W.L.R. 1038 without comment from counsel.

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Their Lordships took time for consideration. G ST . MARY MARYLEB LEBON ONE E L.C. My February 23, 1972. LORD HAILSHAM OF ST. Lords,

 Nature of the proceedings This appeal arises out of two consolidated actions for libel on the  publ  public icat atio ion n of a book. book. The firs firstt ac acti tion on was in resp respec ectt of the 60 proo prooff j§ copies of the book, the second in respect of the principal or hard back edition of the book. We were were told that there ther e are separate proceedings still  pend  pendin ing g in resp respec ectt of a paper paper back back editi edition, on, publ publis ishe hed d under under lice licenc ncee by

A.C.

Broome v. Casscll & Co. (HX. (H X.(( E.)) E. )) v

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separate publishers. This paper back edition edition was mentioned mentioned at all stages stages in the proceedings as being potentially relevant to the question of damages. The House is not otherwise concerned with it. The plain plainti tiff ff in the action (the first firs t respondent to this appeal) appeal) is a retired captain in the Royal Navy of unblemished reputation, who at the time of the matters referred to in the book, held the rank of Commander, and occupied the responsible position of officer commanding the escorts in the B ill-fat ill-fated ed convoy convoy PQ17. He held held active command command throughout the war, and ended his wartime naval career with his present rank of captain in command of the battleship  Ramillies. The subject subject matter of of the book, and and its title, was " The Destruction of Convoy PQ17 " which, as is well known, was one of the great naval disasters of the war, in which all but 11 out of over 35 merchant vessels were sunk on their way to the Soviet Union and about 153  _ merchan merchantt seam seamen en kill killed ed by enem enemy y actio action n and a vast vast quant quantity ity of of wa warr material material c

 

lost.

The defendants in the action were respectively the author of the book, David Irving, who is the second respondent in the appeal, and was not represented before us, and the publishers of the book, Cassell & Co. Ltd., who who are the appellants. D The result of the trial The trial of the action took, we we were were told, 17 days before before Lawton J. and ' a jury. In the result, on February 17, 17, 197 1970, 0, the jury jury found found a verdict for for the plainti plaintiff ff and awarded awarded against against both defendants (1) the sum of of £1,000 £1,000 in respect of publication of the proof copies of the book, counsel for the  pla  plaiinti ntiff havi having ng wa waiv ived ed any any clai claim m to exem exempl plar ary y dama damage gess on the proo prooff g copies, (2) (2) £14,000 £14,000 described as " compensatory damages " in respect of of the hard back edition, and, (3) in respect of the hard back edition a further sum of £25,000, £25,000, described as " by way of exemplary damages." damage s." Judgment was entered for the sum sum of of £40,0 £40,000 00 against both defendants. The present appeal relates solely to the above sum awarded " by way of exemplary damages " of £25,000. So far as relevant to this appeal, the entire proceedings before Lawton J. P were conducted by all the counsel counsel concerned concerned and summed summed up by the judge to the jury on the basis of the remarks of Lord Devlin on pp. 1220-1233 of the report of   Rookes v. Barnard  [1964]   [1964] A.C, 1129, and of the direction following Lord Devlin's remarks by Widgery J. in   Manson v. Associated 1038.. This was was not surprising surprising sinc sincee all  Newspapers Ltd. [1965] 1 W.L.R. 1038 the other members of the House of Lords had expressly concurred in Lord G Devlin's opinion opinion on this point, though without without adding adding reasons reasons of of their own, own, and the opinion in   Rookes v.  Barnard,  which was strictly an intimidation case,  case,  though obviously intended to apply generally, had been expressly applied applied to defamation defamation proceedin proceedings gs by the Court of Appeal in  McCarey v. 86; by by Pearson, Willmer Willmer  Associated Newspapers  Ltd. (No. 2) [1965] 2 Q.B. 86; and Diplock L.JL; in   Broadway Approvals Ltd. v.  Odhams Press Ltd. Sellers, s, Davies and Russell L.JJ.; L.J J.; in H  (No. 2) [1965] 1 W.L.R. 805, by Seller   [1967] 2 Q.B. 841, by Lord Denning M.R. Fielding v. Variety Incorporated  [1967] and Harman and Salmon LJJ.; and in Mafo v.  Adams  [1970] 1 Q.B. 548, a case of deceit and other causes of action, the principles enunciated in

1052 Lord Hajisham of

Bro ome v. Cassell Cass ell & Co. Co . (H .L .( E. ))

[1972] [19 72]

St. Marylebone L.C.

 Rookes v. Barnard  were accepted as applicable where the evidence justifi justified ed . it by Sachs Sachs and Widgery Widgery L.JJ. L.JJ . and a nd Plowman Plowman J. Except for two important passages and one minor passage of which complaint is made, and to which I will come later, Lawton J.'s direction to the jury was unexceptionable as an exposition of the law as it has been declared in the House of Lords by an unanimous House in   Rookes v.  Barnard  and   and applied by the Master of the Rolls and ten Lords Justices and one puisne puisne judge judge in in the above cases cases in in the Court of of Appeal and as it had had B  been  been expo expoun unde ded d by Widg idgery ery J. in his his direc directi tion on to the jury jury in  Manson v.  Associated Newspapers Newspapers Lid. The appeal to the Court of Appeal At the end of the seventeen-day trial the costs of the proceedings which, as between party and party, followed the event, must have already been Q enormous. Both defendants defendants accepted accepted the verdict verdict on liability. liability. The defen defen dant Irving appealed on all all the damages awarded. The present present appellants appealed on the award of of £25,000 £25,000 " by wa way y of of exemplary damage damages." s." The appeal lasted nine days before the Court of Appeal (Lord Denning M.R., Salmon and Phillimore L.JJ.) and judgment was given on March 4, 1971, dismissing both appeals with costs, which must by this time, with the costs of the trial, tria l, even even on on a party and party pa rty basis, have greatly greatly exceeded exceeded the D amount of of the award. Befo Before re the Appellate Appellate Committee Committee of of this House the appeal appea l lasted 13 workin working g days, thus again greatly increasing the sum at stake, though by this time the respondent Irving had given up the struggle.  of the Court of Appeal Appeal  Judgment  of

The Court of of Appeal took a somewh somewhat at unusual course. On the view view E which which they formed formed of the matter, matter, which, which, as will will appear appear,, I have come come to share though with greater hesitation than they expressed, they were for dismissing the appeal on the grounds that the criticisms of the direction by Lawton J. failed, and that the mere size of the award was not one which, on accepted accepted principles, principles, could be attacked. If they had stopped stopped there, it is  poss  possib ible le,, and perhaps perhaps like likely ly,, that that the proc procee eedi ding ngss wou would have have come come to an p end. It is doubtful if leave to appeal to this House would would have been given, given, and if it had not, the two remaining parties would have been spared the costs of of the 13 days' days ' hearing in your Lordships House. Even if if leave to appeal had been given in the above circumstances a great deal of the time occupied before us would have been saved. But the Court of Appeal did not stop at dismissing the appeal on these grounds. Whether Whether or not they were encourag encouraged ed by the zeal of plaintiff plaintiff's 's " counsel, they put in the forefront forefront of their judgments the view view that tha t  Rookes v. Barnard  [1964]   [1964] A.C. 1129 was wrongl wrongly y decided by the House of Lords Lo rds and was not binding binding even even on the Court of of Appeal. Appea l. It was, so they said, arrived arrived at per incuriam, and and without without argument argument from from counsel. It ignored, ignored, they claimed, two previous decisions in the House of Lords, Ley V.  Hamilton (1935) 153 L.T. 384 and  E.   E. Hulton & Co. v. Jones  [1910] A.C. H 20, 20, which had approved awards of punitive or exemplary damages on lines inconsistent with Lord Devlin's opinion in   Rookes v.  Barnard. They felt themselves themselves forti fortifie fied d in this this view view with with the somewhat cool reception in the

1053 A.G.

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Commonwealth Commonwealth of   Rookes v.  Barnard,  particularly in the Australian Supreme Court decision in  Uren v. John Fairfax & Sons Pty. Ltd.  (1966) 117 C.L.R. 118 118 which which had been aff affir irme med d so far as regards rega rds Australian Austra lian law  by  by the Judicial Judicial Comm Commit itte teee of the Priv Privy y Coun Counci cill in the associ associat ated ed ca case se of of  Australian Consolidated  Press   Press Ltd. v.  Uren [1969] 1 A.C. 590. 590. Neither Lord Denning M.R. nor Salmon L.J. seem to have been in any way inhibited or embarrassed by the fact that each had been party to at least one of the B decisions of the Court of of Appeal applying   Rookes v.  Barnard   [1964] without question. Not content with all this, all three members members A.C. 1129 without of the Court of Appeal went further still and, besides declaring   Rookes v.  Barnard   to have been decided per incuriam and ultra vires, proceeded to say say that it wa wass "unw "u nwork orkab able le," ," and in the the meanti meantime, me, theref therefore ore [1971] [1971] 2 Q.B. 354, 384 " judges should direct juries in accordance with the law as it was understood before   Rookes V. Barnard  "   " which the court considered, C to use use the the phrase phrase of of Lord Denning Denning M.R. as " settled." As sent to us by the Court of Appeal, therefore, the appeal before us raised raised several several questions of wide ranging ranging importance. Quite apart apar t from from the th e merits of the respective litigants, these questions include the status of  judgm  judgment entss and the rele releva vanc ncee of preced precedent ent in this this House, House, the circ circums umsta tanc nces es when, if at all, decisions of this House may be questioned by the Court of  j) Appeal, Appeal, and and judg judges es of first rst inst instan ance ce dire directe cted d by the Court of Appeal Appeal to disregard them. There Ther e is also the whole whole question question of of exemplary damage damagess as canvassed in Rookes v. Barnard  and subsequent decisions. What began as a simple proceeding between a plaintiff and two defendants has assumed, at the expense of two of the litigants, the dimensions of a constitutional question and a general enquiry into one aspect (and perhaps more than one aspect) of the law of damages. E The course taken by the Court  of  of Appeal In view of their importance it is unavoidable that before entering into the merits of of the appeal I should should discuss discuss in in a few few paragraphs parag raphs both the th e  propriety  propriety and the desira desirabil bilit ity y of the course course taken taken by the Court Court of Appeal. Appeal. I desire to do so briefly and with studied moderation. F From the point of view view of the litigants litigants it is obvious, obvious, I would would have thought, that, on the view taken by the Court of Appeal, the course taken was unnecess unnecessary. ary. Private litigants have been been put to immense immense expense, of which most must be borne by the loser, discussing broad issues of law unnecessary unnecessary for the disposal of of their dispute. If the Court of Appeal felt, as they were well entitled to do, that in the light of the Australian and other Commonwealth decisions   Rookes v. "  Barnard  ought  ought to be looked at again by the House of Lords, either generally or under the Practice Declaration of 1966, Practice Statement (Judicial Precedent) [1966] 1 W.L.R. W.L.R. 1234, 1234, they were were perfectly perfectly at liberty to say so. so. More, they could could have sugg suggest ested ed that so soon soon as a case at first instance arose in which the ratio decidendi of   Rookes v.  Barnard   was unavoidably involved, the parties concerned might wish to U make use of of the so-cal so-called led " leap-frogging" procedure now available to them them under the Administration of Justice Act 1969 and thus avoid one stage in our three-tier syste system m of appeals. appe als. But to to impose impose on these these litigants, litigants, to whom the question was, on the court's view, unnecessary, the inevitable

1054 Lord Haiisham of

Broome v. Cassell & Co. Co . (HX. (H X.(E (E.) .) )

[1972] [197 2]

SI.  SI.  Marylebone L.C.

 burden  burden of furthe furtherr cost costss afte afterr all they they had been been throu through gh up to date was not, in my view, defensible. Moreover, it is necessary to say something of the direction to judges of first instance to ignore  Rookes v.  Barnard as " unworkable." As wil willl be seen when I come to examine Rookes v.  Barnard   in the latter part of this opinion, I am driven to the conclusion that when the Court of Appeal described the decision in  Rookes v.  Barnard as decided decided " per incuriam " or " unworkable " they really only only meant meant that they did not agree with it. But, in my view, even if this were not so, it is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore deci sions of the House of Lords in this way and, if it were open to the Court of Appeal to do so, it would would be b e highly highly undesirable. The course taken would have put judges of first instance in an embarrassing position, as driving them to take sides in an unedifying dispute between the Court of Appeal or three members members of of it (for (for there is no guarantee guarantee that other Lords Justices would have followed them and no particular reason why they should) and the House House of of Lords. Lord s. But, much worse worse than this, litigants litigants would would not have known known where where they stood. stood. None could could have reached finali finality ty short of the House of Lords, and, in the meantime, the task of their pro fessional advisers of advising them either as to their rights, or as to die  probable  probable cost cost of obtain obtaining ing or defe defend ndin ing g them, them, woul would d have have been, been, quite literally, impossible impossible.. Whatever the merits, chaos would would have reigne reigned d until the dispute was settled, and, in legal matters, some degree of certainty is at least as valuable a part of justice as perfection. The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tie tiers. rs. Where decisions manifestly manifestly conflict conflict,, the decision in  Young v.  Bristol Aeroplane Co. Ltd. [1944] K.B. 718 718 offe offers rs guidance to each tier in matters matter s affect affecting ing its it s own own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. freedom. Even this House, since it has taken taken freedo freedom m to revi review ew its own decisions decisions,, will will do so cautiously. That Th at this thi s is so is apparent appare nt from from the terms of the declaration of 1966 itself where Lord Gardiner L.C. said  [1966] 1W.L.R. 1234:

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" Their Lordships regard the use of precedent as an indispensable foundation upon which which to decide what is the law and and its application to individual cases. cases. It provides at least some some degree of certainty certain ty upon which individuals can rely in the conduct of their affairs, as well as a basis for for orderly developme development nt of legal legal rules. " Their Lordships neverth nevertheles elesss recognis recognisee that too t oo rigid adherence " to precedent may lead to injustice in a particular case and also unduly restrict the proper prope r developmen developmentt of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this th is House as normally binding, to depart dep art from a previous decision decision when it appears right to do so. " In I n this connectio connection n they wi will ll bear in mind mind the danger danger of of disturbing J J retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law.

1055 A.C.

Broome v. Cassell & Co. Co . (HX (H X .(E. .( E.)) )) v

v

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„ *?'« Haiisham of St. Maryle Marylebon bonee L.C.

" This announcement is not intended to affect the use of precedent elsewhere than in this House." It is also apparent from the recent case of   Reg. v. National Insurance Commissioner, Ex parte Hudson  [il972] A.C. 944, where the decision in Reg. v.  Deputy Industrial Injuries Commissioner, Ex parte Amalgamated  Engineering Union, In re Dowling  [1967] 1 A.C. 725 came up for review review „ under the 1966 1966 declaration, declaration, that the House will will act sparingly sparingly and cautiously in the use made of the freedom assumed by this declaration. In addition, the last paragraph of the declaration as quoted above clearly affirms the continued adherence of this House to the doctrine of precedent as it has been hitherto applied to and in the Court of Appeal. The merits of  the  the appeal C It is now possible possible to turn to the merits of the case so far as these were canvassed before us on the assumption of the continued authority of the  Rookes v.  Barnard  decision decision.. Befo Before re us the appellants appellants made three contentions, contentions, (i) (i) That there was no evide evidence nce to be be lef leftt to the jury that the conditions were fulf fulfil ille led d to bring the case within within one of of the three thre e " categories " of cases listed by Lord Devlin in Rookes v. Barnard  as  a s being being Q appropriate appropri ate for an award award of punitive punitive damages, damages, and in particular the second second,, which which was admittedly the only only relevant category, category, (ii) (ii) That, That, even on the assumption that the first contention was wrong, Lawton J. had misdirected the jury in in at least two two important matters, (iii (iii)) That in any event event the award of of £25,0 £25,000 00 was excessive, excessive, and could not be sustained. In order to understand these contentions contentions it is necessary necessary to say somethi something ng about the facts. E The facts on which the book  was  was founded The fate of the PQ17 convoy is one of the most publicised, as well as one of of the most tragic, naval operations of of World World War II. II . The evidence evidence showed that it had been written about many times, notably by Captain Roskill, R.N., the official naval historian, and by the late Mr. Godfrey Winn,  p whos whosee book book wa wass said said to have have sold sold half alf a mill millio ion n copi copies es.. It is unne unnece cess ssar ary y to recapitulate the facts facts here. he re. They are graphicall graphically y describ described ed in the  judg  judgme ment nt of of Lord Den Denni ning ng M.R. M.R. It is suffi suffici cien entt to say that the primary cause of of the disaster flowe flo wed d from an order to the convoy to scatter, which made the ships in it an easy prey to the aircraft and submarines by by whi which ch they were attacked. This order to scatter was issued by the Admiralty in Whitehall and was due to a faulty G appreciation appreciation by the naval staff, in particular, as is now known, by the then First Sea Lord   himself,  that the German battleship  Tirpitz was at sea, and to a decision, also by the then First Sea Lord, to take the responsibility for the order on himse himself lf rather than leave leave the decisi decision on to the discretion discretion of of the naval offi office cers rs on the spot. The naval naval off offic icer erss on the spot, including Admiral Hamilton in command of the cruiser squadron, and Captain Broome, had no option but to obey, obey, and and the convoy convoy was was thus thus lef leftt to fan fan out JJ Broome, on individual courses covering a vast area of sea. So far ther t heree can be no controversy. But the two naval offi officer cers, s, rightly considering that the order to scatter must denote the approach of a superior

1056 f 

Sf r i . H a } \ h a m ? ^

Broome Broome v. Cassel Casselll & Co. (H.L.(E.)) (H.L.( E.))

[1972]

St. Marylebone L.C.

hostile surface surface force, force, sailed sailed west west in company. Admiral Hamilton was acting under precise orders from from the Admiralty. Captain Broome wa wass not. Captain Broome had proposed and Admiral Hamilton accepted that he should put himself under command of the admiral commanding the cruisers. That this decision decision was was courageous courageous there can be no doubt. What has been subsequent subsequently ly disputed was whether whether it wa wass as wise wise as it was certainly brave. Some have thought that it was no more than the inevitable reaction of gallant and experie experienced nced naval offi office cers rs to the threat of of surface surface action. Others have thought that its eff effec ectt was to remove from from the area of the convoy convoy the only naval elements, which might have countered the U-boat and air attacks, and thus thus to contribute to the extent of of the convoy's losses. losses. Which Which of of these two views views be correct it is not appropriate approp riate here to discuss. But what is relevant to the present appeal is that those who criticised the decision had  previ  previou ousl sly y fast fasten ened ed the resp respon onsi sibi bilit lity y on Admiral Admiral Hamilto Hamilton. n. It was one one of the distinctive distinctive features of Mr. Irving's book (which (which it may may have shared with a German work with whose author he had collaborated) that it attempted to place responsibility for the withdrawal of the destroyers entirely or mainly mainly on the shoulders of of Captain Captain Broome. This was a diffic difficul ultt thesis thesis to sustain since Captain Broome was was the junior offi office cerr of the two, and had only " proposed " the course which both forces ultimately pursued. It also involved the propositions, both disputable, that the decision was wrong in the light of the information then available, and that the absence of the destroyers made a significant difference to the loss of life and material. From the start Captain Broome contended that the passages in the book relating to himself which it is not necessary to set out at length were defam atory. In paragraph paragr aph 5 of of his statement of of claim claim he said that they meant and were intended and understood to mean: " that tha t the the plaint plaintiff iff was disobedient, disobedi ent, careless, incompetent, indifferent indifferent to the fate of the merchant ships and/or by virtue thereof had wrongly withdrawn his destroyer force from the convoy and/or taken it closer to the German airfields than he had been ordered to and had thereby  been  been larg largel ely y resp respons onsibl iblee for for or contri contribut buted ed exte extens nsiv ivel ely y to the loss loss of the aforesaid aforesaid ships and the th e effec effecti tive ve destruction of more mo re than twothirds of the Convoy Convoy PQ17." PQ17. "

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In addition, at the trial it was contended that the ordinary and natural meaning of one of the relevant passages was that Captain Broome was a coward and for this reason "needed no second bidding" to desert the convoy. convoy. The defendant defendantss both bot h disputed disputed that tha t the book bore any of of these meanings, but contended that without them the passages in the book were true. It is evident evident fro from m their verdict and fro from m the t he magnitude of the award G of damages that the jury rejected the contentions of the defence, though how far and to what extent must be to some extent a matter of speculation. The material before the  jury From the commencement of the trial it was contended for Captain   Rookes v. Barnard  [1964] Broome that notwithstanding the limitations of  Rookes [1964] JJ A.C. 11 1129, he wa wass enti entitl tled ed to "exem "ex empl plar ary" y" or "pu "p u ni t iv e" damag damages. es. The trial judge ruled (though on this point he was subsequently overruled by the Court of Appeal) that, if so, he was bound to include a plea to this effect in

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Broome Broome v. Cassell Cassell &  Co. (HX.(E.)) v

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1057

Hajisham of

St. Marylebone Marylebone L.C. L. C.

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his statement statement of of claim, and the pleading pleading consequen consequently tly introduced introduced into the statement of claim by way of reamendment affords a convenient summary of the way way the case wa wass then then put. The pleader wrote in paragraph 7: 7: " The plaint plaintiff iff will will assert that tha t the defendants and each of them calculated that the money to be made out of the said book containing the passages complained of would probably exceed the damages at risk (if any) and that t hat the the plainti plaintiff ff is consequently consequently entitled to recover B exempl exemplary ary damages."

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He then went went on to give give particulars. particula rs. If established, established, the plea clearly clearly puts the case within the second of the three exceptional categories listed by Lord Devlin in Rookes v. Barnard. The question question for the judge was whether whether there was evidence to leave to the jury on which they could find that the case was indeed indeed to be placed placed in this category. category. If there was such such evidence evidence,, and if if the jury were not misdirected, inclusion within the second second category would have entitled (though not compelled) them to make some award on this account. The appellants contended before the Court of Appeal and before us that there was no such such evidence. evidence. In my opinion, opinion, this contention contention wholl wholly y would in practice have to establish establish that tha t there fails. To convince us, they would was no evidence evidence on whic which h a properly properly directed directed jury could could find that at the time of publication they were fully aware the words bore and were intended and understood to bear the meanings attached to them in the statement of claim, since, if at the time of publication the words were known to bear these meanings, they were false to the knowledge of the appellants and  publ  publis ishe hed d wi with th that know knowle ledg dgee for for prof profit it.. In my view view,, the mean meanin ings gs or most of them are are suff suffic icie ient ntly ly obvious from from a casual reading readin g of of the book, and the inadequate attempts attempts by the author or the publishers publishers to provid providee an alternative meaning or an escape route by which they could argue the alternative before a jury by small modifications or carefully phrased ambiguities, are less an indication of innocence or naivet6 than a clear sighted sighted appreciation of the danger that tha t they they faced. faced. Mr. Irving was not represented before us, but his case was strenuously advanced before the Court Court of Appeal, Appeal, and and in another another conte context xt (to (to be disc discus usse sed d lat later) er) we had had to consider his case when counsel for the appellant expressly accepted as accurate the Master of the Rolls' Rolls ' colou colourfu rfull account of his behaviour. It is is abundantly plain from this account that Mr. Irving at least knew, and care full fully y planned, what he was doing, doing, that he went on with it in spite of repeated warnings from the most authoritative sources, that he conceived the book " as a book with a diffe differe rence nce as all me m e n " (that is, including including Captain Broome) Broome) " were shown shown to be cowards," cowards," and that he prided hims himsel elff on being being able to say " some pretty near the knuckle things about these people " (he was directly referring to Captain Broome's threat of proceedings) " but if one says it in a clever clever enough enough way, way, they cannot take action." actio n." The Th e rules of evidence preclude us from taking these admissions of his state of mind as evidence evidence against against the appellants. But, in in my opinion, opinion, the " near the knuckle knuckle thin th ings gs"" said said about Captain Broome Broome in the course course of of this book, book, including including the allegation that th at he was a coward, were said said suffi suffici cient ently ly plainly for an experienced publisher to know perfectly well what their meaning was and the fact that they were said " in a clever enough way " should

1058

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

[1972]

St. Marylebone L.C.

have told told them plainly plainly that they they were were said said with deliberate intent to convey convey . the meanings meanings without without incurring incurr ing heavy heavy damages. But the case against Cassells does not stop at the obvious meanings to  be attached attached to the passa passages ges in the book. book. Even Even if, whic which h I coul could d not ea easi sily ly accept, they did not understand the drift of the book at a first reading, they acquired the right to publish and they went on actually to publish in circumstances circumstances fro from m which which the jury were clearly clearly entitled to infer infer that they went went ahead with with the most cold-blooded cold-blooded and clear-sight clear-sighted ed appreciation of B what they were were doing. The appellants were not the first fir st publishers selec selected ted by Mr, Irving. His original publishers were Willia William m Kimber Ltd., Ltd. , who ultimately ultimately refuse refused d to  publ  publis ish h the book book on the groun ground d that the book book was " a continuous continuous wit witch ch hunt of Captain Broome " having been advised by Captain Roskill, who gave evidence for Captain Broome, and perhaps by others, that " the book reeks „ of defamation." In the absence absence of evidence evidence by by either defendant defendant at a t the th e trial, it is impossible to say how much of this was known to the appellants. But it is certain that Mr, William Kimber warned the appellants in un mistakable terms that his house had rejected the book precisely on the grounds that it was libellous, amongst amongst others of Captain Broome. Broome. The undisputed response of the appellants was either flippant or cynical. Moreover, Captain Broome Broome himse himself lf had warned them on several occasions D that, if they published the book, as they did, in substantially the form in which he had seen it, they must expect an action for libel from  himself. That they took these threats seriously can be seen from uieir reaction to the latest of of them which which follow followed ed the issue of of the th e proof copies. copies. On receipt of this, the appellants placed a stop on the book in the following terms: " Will Wi ll you please note that absolutely absolutely and positivel positively, y, not one single single g copy, on any pretext whatsoever, whatsoever, is to be removed removed from from the house without refer referenc encee to me." m e." In attempts to sell the serial rights their efforts were " shot down " by three national Sunday newspapers presumably on the same grounds. What the full explanation of their subsequent publication may have been will will never never be known, known, since since the appellants did not elect to give give evidenc evidence. e. F But, in the absence of any explanation, the jury were perfectly entitled to infer that they had calmly calculated that the risks attendant on publication did not outwei outweigh gh the chances chances of profit. profit. What is certain is that, in so far as they were aware that the passages complained of could be reasonably understood to bear the meanings attached to them by Captain Broome, including the allegation of cowardice, they published them knowing them in this sense sense to t o be false, false, since no eff effor ortt was made at any stage stage to sugg suggest est " that there was any material on which a reasonable publisher could base the  beli  belief ef that the passa passages ges comp compla lain ined ed of, if they they bore these these meani meanings ngs,, were were true. In his judgment judgment in in the Court of Appeal Lord Denning M.R. lists other features of the case against the appellants upon which the jury were entitled to base inferenc inferences. es. With With most of of these, except except the referen reference ce to the paperback edition, which, contrary to what he says (perhaps per JJ incuriam), was not published by the appellants but under licence by another publisher, I find fin d myse myself lf in agreeme agreement. nt. In particular parti cular,, I concur in what was said in the Court of Appeal about the dust cover of the book,

A.C.

Broome v.  Cassell  & Co. (H.L.(E.)) v

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1059 „  L°«» Haiisham of St. Marjicbone Marjicbone L.C .

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which, which, making every allowan allowance ce for the popular popul ar style in such productions, and putting the most favourable interpretation upon every phrase in it, seems, to my mind, in the absence of explanation, to indicate that the pub lishers were well aware of the full implication of the passages complained of and were prepared to sell the book on this sensational interpretation. In such circumstances, to argue that there was no evidence from which the  jury  jury coul could d infe inferr that " the appell appellant antss had ca calc lcul ulat ated ed that the mone money y to be B made out of the book containing con taining the passages passages complained complained of would  probab  probably ly exce exceed ed the dama damage gess at risk risk (if a n y )" wa was, s, to my mind mind,, a somewhat forlorn hope, and nothing which counsel for the appellants said in the course of his strenuous and ably conducted argument has convinced me to the contrary. I will will refer to the passage fro from m Lord Lord Devlin's speech speech in  Rookes v.  Barnard   [1964] A.C. 1129 relating to the categories later for its proper interpretation, but I cannot see how, on any view, if these facts ^ were proved to the satisfa satisfactio ction n of a jury, properly directed, directed, they they are not sufficient to enable the jury to base inferences bringing the publication within the second category.

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The direction on the relation  relation between the two awards There was much more substance in, and I find much greater difficulty in decidin deciding g upon, the appellants' appellan ts' secon second d contention, whic which h wa wass based, based, not upon Lord Devlin's three listed categories, but upon his exposition of the general conditions under und er which exemplary damages may be awarded after the conclusion of the three "considerations" listed on pp. 1227-1228 of the report which, he says, says, ought ought always always to be borne in mind. At this  p . 1228:  point,  point, Lord Devl Devlin in said said,, at p. " Thus Thus a case for exemplary damages must be presented quite dif diffe fer r ently from one for compensatory damages; and the judge should not allow it to be left to the jury unless he is satisfied that it can be  broug  brought ht wi with thin in the ca cate tego gori ries es I have have spec specif ifiied. ed. But But the fact fact that the the two sorts of damage differ essentially does not necessarily mean that there there should be two awards. awards . In a case in which which exemplary damages are appropriate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum  aggravated  by   by the way in which the defendant has   to the plaintiff) is inadequate to  punish him for his outrageous behaved  to conduct, to mark their  disapproval  disapproval of such conduct and to deter him  from  repeating it, then it can award some larger  sum   sum "  (italics (italics mine). " If a verdict given on such direction has to be reviewed upon appeal, the appellate court wi will ll first firs t consider consider whether the award can be just justif ified ied as compensati compensation on and if it can, there is nothing nothing further to be said. If it cannot, the court must consider whether or not the punishment is, in all the circumstances, excessive. excessive. There may be cases in which which it is difficult for a judge to say whether or not he ought to leave to the jury a claim claim for exemplary damages. In such such circumstances, and in order to save save the possible possible expense expense of a new trial, trial , I see no objecti objection on to his inviting the jury to say what sum they would fix as compensation and what additional sum, if any, they would award if they were entitled to give give exemplary exemplary damages. That Tha t is the course course whic which h he woul would d have

1060 Lord Haiisham of St. Marylebone Marylebone L.C. L. C.

Broome v. Cassell Cassell & Co. Co . (HX.( X. (E.) E. )) v

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[1972] [1972] i

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to take in a cla claim im to whic which h the Law Reform Reform (Miscellaneous (Miscellaneous Provisions) Act, 1934 1934,, applied." applied ." In my opinion, this passage contains a most valuable and important contribution to the law of exemplary damages which, prior to   Rookes v.  Barnard,  had not, so far as I am aware, been adequately stressed in any  previ  previous ous ca case se,, and and whic which, h, in my vie view, woul would d retain, retain, and and poss possib ibly ly even even increase, its value even if the categories in   Rookes v.  Barnard  were to  be wholl holly y reje reject cted ed.. In essence the doctrine is that the award of a punitive element in damages, if it is ever permissible, must also remain discretionary, and, in order order to give effe effect ct to the second second of the three three " considerations consideration s " listed listed at  p.  1227, the judge should always warn a jury that they need not award anything, and must not do so unless they they are satisf satisfied ied that a purely com  pensat  pensatory ory aw awar ard d (in a sens sensee which hich I wi will ll expla explain in)) is inadequ inadequate ate.. It foll follow owss that whatever they do award should only be a sum which has taken into account the award of damages already notionally allowed as compensation, including, including, where where appropriate, the " aggr ag grav avat ated" ed" element element required required by a defendant's bad conduct, and should never exceed the amount by which the required penalty (if that is the right word) exceeds the required compensation. I shall revert to this feature of   Rookes v.  Barnard later. But what is said in substance by the appellants in this case is that the summing-up failed failed to give eff effec ectt to this important importa nt and, and, in my view, view, vital principle. principle. The learned judge directed the jury over two days and much that he said was irrelevant irrelevant to the question of of exemplary damages. Of what was relevant to exemplary damages, most was a direction to the jury about the second category and the evidence evidence in the case case relevant to it. This reflect reflected ed the  balan  balance ce of argu argume ment nt by coun counse sell during during the ca case se and it appears appears from from a remark in the judgment of Phillimore L.J. in the Court of Appeal that, in some sense at least, both counsel agreed that, dependent on the view which the jury took of the facts, Lawton J. should leave the question of exemplary damages to the jury. But there were two passages in the summing-up summing-up relevant to the present issue. The fir first st was a passage on the fir first st day of of the summing summing-up -up when when the judge, having directed directed the jury that t hat punitive damages were in the nature of a fine, went on to give two examples from the criminal law carrying the moral that the punishment must neither be excessive nor inadequate to the gravity of the offence and said: " If you are going to punish a man to show him that libel does not  pay,  pay, provi provided ded,, of course course,, it comes comes withi within n Widg Widger ery y J.'s defi defini niti tion on " (he (he was referring to  Manson v. Associated Newspapers Ltd.  [1965] 1 W.L.R. 1038 1038)) " what what you do must be b e reasonable in all the circum stances, stances, bearing bearing in mind that it is a penal p enalty." ty." The second, and more important, of the passages was on the second day of the summing-up when, after leaving an agreed list of questions to the  jury,  jury, the the lear learne ned d judg judgee said: said: " As you will see, the issue of damages has been divided into two questions. questions. The first one is No. 3, ' What compensatory compensatory damages damages do you award the plaintiff?' plaintiff?' You will will remember that that compensatory

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x

"

Lord Haiisham of St. Marylebone Marylebone L.C. L. C.

damages are compensati compensation on for something something,, they are not given given to you. When you come to consider that question you must remember that this is a joint publication by Cassell & Co. Ltd., and Mr, Irving. You do not award two diffe differen rentt sums. You award one sum sum and you will leave the lawyers to work out what it means, but it is one sum. Do you you all fol follo low w that? th at? Then having having decided decided what are the proper additional compensatory damages then you will go on and consider the fourth question, question, namely, ' Has the plai plaint ntif ifff proved proved that tha t he is entitled entitled to exemplary damages?' damages ?' It is for him to prove prove that he is entitled entitled to it, not for for the defendants defendants to prove that he is is not. This question question has got to be divided up into a number of subsidiary questions and the reason for this is problems of law which arise, but you do not have to concern concern yourselves yourselves with with those. those. That is my responsibi responsibility lity.. There are two defendants and, as I have been at pains to point out to you during my summingsumming-up, up, the case against against each defendant defendant on the issue of punitive damages damages is differen different, t, so you you will will have to consider the case against against each defendant defendant separately. separately. I sugges suggestt you you start sta rt with with Mr. Irving and then go on to Cassell Cassell & Co. Ltd. In respect of of each of of them you you will will ask yourselves this question: question: ' Has the plai plaint ntif ifff proved his entitle ment against that defendan defe ndant?' t?' If the answer answer is yes yes then then you will will have to go on and assess how much punitive damages should should be awarded. awarded. If the answer answer is no he will will get no punitive punitive damages. At least that will will be your find finding ing.. What the law law is is is another matter, but that will will  be your your finding. Havin Having g carrie carried d out that opera operatio tion n in relati relation on to Mr. Irving you should carry out exactly a similar operation in relation to Cassell Cassell & Co. Remember all a ll the time that tha t letters written written by Mr. Mr. Irving or to Mr. Irving, other than by Cassells, are not evidence against Cassell Cassell & Co. I cannot stress stress that too much. You wi will ll have to ask yourselves: yourselves: ' H a s he proved proved that tha t he is entitled entitled to punitive punitive damages damages against against Cassell Cassell & Co. Ltd? Lt d? ' If the answe answerr is is no that is that. If the answer is is yes yes you you wil willl have to assess assess the damages. I have put all that into an omnibus lawyers' serie seriess of of questions. I could have put it all into one question, but I came to the conclusion that it would probab probably ly be better better for for you. you. I wi will ll read read paragraph paragraph 4 again. again. ' Has the  pla  plaiintif ntifff prov proved ed that he is enti entitl tled ed to exemp exempla lary ry damages? damages? If yes, yes, has he proved his entitlement entitlement against against one one or or both of of the defendants? defendants? If one only, only, against which which one? on e?'' Then you you see see the last question question under  • this heading, ' What additional sum should be awarded him by way of exemplary exemplary damage d amages?' s?' Would Would you be good enough enough to underline the word ' additional,' because I want to know, and learned counsel want to know, if you do decide to award punitive damages, how much more do you award over and above the compensatory damage." What was said against this passage on behalf of the appellants was that this summing-up was defective in that it did not make it absolutely plain to the jury that before making any  punitive award against the defendant they must first first take into account and assess the punitive effe effect ct of any com  pensat  pensatory ory aw awar ard d (inc (inclu ludi ding ng any any elem elemen entt of " aggravated" dama damage ge)) and and only award such amount (if any) by which the appropriate penalty exceeded such award. A.C.  1972—38

1062 Lord Haiisham of  

Broome v.  Cassell  & Co. (H.L.(E.)) (H.L.( E.))

[1972]

St. Marylebone L.C.

I am bound to say that that I have found found the greatest dif diffi ficu cult lty y in accepting the summing-up on this point as adequ a dequate, ate, and and my diffi difficul culti ties es were increased increased  by tw two o pass passag ages es in the final spee speech ch of Captai Captain n Broome' Broome'ss coun counse sell whic which, h, as counsel for the appellants persuasively argued, seemed to indicate that the respective awards of compensatory and punitive damages were entirely separate assessments and that one should not be balanced against the other. In so far as counsel counsel said this, and he appears to have done so, he was, was, in my my opinion, entirely entirely wrong wrong.. In the end, howeve however, r, I have come to the conelusion that the judge's direction was just adequate to convey the impression intended in the passage of Lord Devlin's speech which had been accurately read to the jury by counsel for Mr. Irving and that the jury were not in fact misled. In coming to this conclusion conclusion I have been been impressed, as was was the Court of Appeal, by the stress the judge laid on the word " additional" in the passage cited, by the fact that the form of the questions left to the  jury  jury (whi (which ch did did not incl includ udee as it should should have have done, the word wordss " if any any " in that relating to punitive damages) was agreed by counsel and by the fact that the line of the judge's summing-up was entirely in accord with the case for the appellants as it was put to the jury on their  behalf,  and that every one seems to have assumed that the result of the jury's answers was that whic which h in fact fact obtained. I desire, howeve however, r, to say say that the direction on this  point,  point, if sufficien cientt, as I am const constrai rained ned to say say it was, was, was was only only barely barely sufficient, and that I trust that in future cases of this kind trial judges will stress the matter a good deal more clearly and with greater emphasis than was done here. In the present case I do not think that tha t the judge can can be blamed blamed for putting the matter compendiously in a form which seems to have misled no one, which accorded with the way and with the emphasis with which it had been put to the jury on on beha behalf lf of the appellants, and and which, which, according to Phillimore L.J.'s observation quoted above, had, in some sense, been agreed.

.

B

^

D

g

 A single award  or  or two? Less meritorious, in my view, was the second criticism of the direction  put befo before re us. This wa wass in effect that the judge judge did did not correc correctl tly y direct direct p the jury as to the principles on which a joint award of exemplary damages can be made against two or more defendants guilty of the joint publication of a libel in respect of which their relevant guilt may be different, and their means of differ different ent amplitude. amplitude. With high regard for for the judgments of Lord Denning M.R. and of Salmon L.J., I differ from both in what they said on this aspect of the matter, both as to the effect of the judge's summing-up and to to what what itit ought ought to be in such such cases. Lord Denning Denning M.R. said [1971] G 2 Q.B. 354, 383: " T h e re is, of course, a dif diffi ficu cult lty. y. How is a jury to asse assess ss the the  one figure against two defendants. Are they to fix it at a high sum which they think the more  blameworthy ought to pay? Or a low sum for the least  blameworthy?  blameworthy? That must be left to the jury. They may, if they choose, fix a figure in between. The judge can, 1 think, tell them that  J J they can fix it as  against  the   the more blameworthy, expecting him to pay it: and leave the least blameworthy (if he is called upon to pay) to recover  contribution.   contribution.  In this case the judge left it to them without any

1063 A.C.

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.( E.))

 Hatoham am c . Lord Hatoh

of

St. Marylebone L.C.

. 

 was, I think, quite legitimate: specific direction. That  was, quite legitimate: and is no ground  disturbing the verdict."  (The italics are mine. mine.))  for  disturbing

Lord Denning M.R. then added: " In any case, however, I think Cassells are not at liberty to take this  point.  point. They They did not ask judg judgee or jury to split split the dama damage ges. s. The judg judgee told counsel counsel the questions he was going going to put to t o the jury: jur y: and asked B for their comments. comments. That wa wass the time for counsel counsel to ask for the exemplary exemplary damages damages to be split. split. As that was not done, it is is too late to ask in this court." Salmon L.J. appears to have thought that the award should reflect the amount due by the most guilty of the tortfeasors and he said at p. 393: " . . . it is wel welll settl settled ed that where where there there are severa severall defen defendan dants ts who who have C all committed committed a joint tort, there can be only only one award of one sum sum of damages against all of them:  Greenlands  Ltd. v.  Wilmshurst and  London Association for Protection of Trade  [1913] 3 K.B. 507. 507. It may bear hardly on one or more of the defendants. The moral may  companions in tort as be that you must be as  careful in choosing your  companions  you are in choosing your companions when you go out shooting."  j j (The (The ita itali lics cs are agai again n min mine. e.))

E

F 

G

JJ

With respect to both judgments which, as will be seen, are arguably not quite consistent with one another, I think the effect of the law is exactly the opposite and that awards of punitive damages in respect of joint  public  publicati ations ons shou should ld refle reflect ct only only the lowe lowest st figure for for whic hich any of of them them can  be held held liable liable.. This see seems ms to to me to fl flow inex inexora orably bly both fro from the princi principle ple that only only one sum sum may may be awarded in in a singl singlee proceed proceeding ing for a joint tort t ort,, and from from the authorities authorit ies which which were cited cited to us by Mr. Mr. Parker in detail d etail in the course of his argument argument.. Mr. Parker referred referred us to Heydon's Case (1612) 11 Co.Rep. 5a;  Clark  V. Newsam  (1847) Exch. 131; Hill v. Goodchild   (1771) 5 Burr. 2790;  Dawson v.  M'Clelland   [1899] 2 Ir,R. Ir,R . 486; Greenlands  Ltd. v. Wilmshurst and London Association for  Protection   Protection of Trade [1913] 3 K.B. 507, especially at p. 521;  Smith v. Streatfeild  [1913]   [1913]   Ellesmere [1932] 2 K.B. 431, 471 3 K.B. 764, 769; Chapman v.  Lord  Ellesmere 471 per Slesser L.J.;   Dougherty v.   Chandler (1946) (1946) 46 N.S.W.S.R. 370;  Egger  v. Viscount Chelmsford  [1965] 1 Q.B. Q.B. 248, 248, 262 and to t o Gatley on Libel and Slander, 6th ed. (1967 (1967), ), p. 606, para. par a. 1390 1390.. I think that the th e inescapable con clusion clusion to be drawn from these authorities is that only one sum sum can be awarded by way of of exemplary damages where the plaint plaintif ifff elects to sue more than one defendant defendant in the same same action action in respect respect of of the same publication, and that this sum must represent the highest   common  factor, that is, the lowest  sum sum for which which any of the t he defendants can be held liable on this score. Although we were concerned with with exemplary damages, I would would think that the same principle applies generally and in particular to aggra vated damages, and that dicta or apparent dicta to the contrary can be disregarded. As counse counsell conceded, however, however, plaintif plaintiffs fs who wish wish to differentiate differentiate between between the th e defendants can do so in various ways, for example,  by  by elec electi ting ng to to sue the the more more gui guilt lty y only only,, by by com comme menc ncin ing g separate separate proc procee eedi ding ngss against each and then consolidating, or, in the case of a book or newspaper

1064 L„rd HaUsbam of

Broome v. Cassell & Co. Co . (H.L (H .L.( .(E. E.)) ))

[1972] [1972]

St. Marylebooe L.C.

article, article, by by suing suing separately separately in the same same proceedings for the publication publication of of the manuscript manuscript to the publisher publisher by by the author. Defendants, Defendants, of of course, have their ordinary contractual or statutory remedies for contribution or indemnity so far as they may be applicable to the facts of a particular case. But these may be inapplicable to exemplary damages. Having established his principle, counsel for the appellant went on to argue that the judge had misdirected the jury, seeking to encourage us in this beli belief ef by the submissio submission n that, that, if if he had persuaded at least two two members of the Court of Appeal to defend it on one of two possibly inconsistent and erroneous bases, the learned judge might well have succeeded in making the  jury  jury acce accept pt one one of of them them as as the grou ground nd of of their their awa award. rd. The passage in the summing-up on which the appellants relied for this purpose purpose was as follows. follows. It occurs immediately immediately after after the th e passage passage already quoted quoted in whic which h the judge judge directs the jury to regard the exemplary exemplary damages damages as a sum sum additional to the compensator compensatory y award. Lawton Lawton J. went on: " You may be saying saying to yourselves: if we do take the view view that both these defendants should pay something by way of punitive damages, should we take into consideration consider ation the relative culpability of each one? Again, and I merely say this by way of illustration, and certainly not  by  by way of guid guidan ance ce to you, you, say, say, for exam exampl plee you you took took the view that Mr. Irving was more to blame than Cassell & Co., or to be fair, you took the view that Cassell & Co. being an experienced firm of  publi  publishe shers rs were ere more more to blam blamee than than this youn young g man, man, Mr. Irving Irving,, should you make  Cassell & Co. pay a larger  sum   sum by way of punitive damages than Mr. Irving? The answer to that is no "   (italics mine). " Whatever damages, damages, if any, you decide decide should be awarded by way way of  puniti  punitive ve dama damage gess must must be the same same sum sum in resp respec ectt of both both Mr. Irving Irving and Cassell & Co. Ltd., if you find them both liable to pay punitive damages. damages. Have I made that clear? "

.

B

-,

"

g

This direction is in many ways defectiv defectivee as a piece of of clear English English  prose.  prose. In particula particular, r, it contai contains ns an ambi ambigu guit ity, y, lat later er cure cured d by an exch exchan ange ge in the presence of the jury betwe between en counsel counsel and the the Bench Bench as to whether p the jury is to award a single sum against both defendants or two sums, each eac h against one one of of the defendants. defendants. But on on the crucial point as to whether whether this sum, when awarded, should represent the higher or the lower figure for which die jury found either either guilty, I myse myself lf find find no difficul difficulty ty in thinking thinking that the jury would would have have been been clear clear that th at they were were to award the lowe lower. r. I would hope that on other occasions this would be made even plainer, but I find it dif diffi ficu cult lt to criticise an experienced experienced judge for not being absolutely O crystal clear on this point at the end of a two-day direction over a wide range of of differ different ent topics follow following ing a 17-day 17-day trial. trial. I would would not disturb the th e verdict on these grounds. I also consider that, that, having agreed to the form form of the questions left left to the jury, it was not really open to the appellants to contend, on appeal, that the awards should should be split. In any case I am fortif fortified ied in my my view view of of JJ the matter mat ter by the fact fact that t hat I find find the same diff diffic icul ulty ty as did the Court of Appeal in different differentiating iating in any way way betwee between n the the moral culpability of the two tw o defendants. Mr. Irving Irving may may have have been been the author autho r of of the defamator defamatory y

1065 A.C.

Broom Broomee v. Casse Cassell ll & Co. (ftL, (f tL,(E. (E.)) )) v

v

c.

i^ i ^ a Haiisham of of

St. Marylebone Marylebone L.C. L. C.

matter. But the appellants published published it, i t, on the jury's jury 's find findin ing, g, with their eyes open as to what it contained. It may be that Mr. Irving had fewe fewerr means, and, if the jury were looking on the exemplary damages from the  point  point of view view of deterri deterring ng him, him, they they coul could d have have aw award arded ed a small smaller er sum. sum. But there seems to have been no evidence concerning the means of either  party, and I do not see see how how at this this lat latee date we ca can n proper properly ly be invi invite ted d to speculate. The enterprise was essent essentiall ially y a joint one, and if the appellants B had not all the information information available available to Mr. Irving, Irving, they they had enough enough to make sure that tha t they knew exactly what they were doing, It is diff diffic icul ultt to know on what principle the the jury could have differenti differentiated ated between between the two defendants. -,

D

F

^

U

Was the award excessive? The final fin al point taken for the appellants was that the award of £25, £25,00 000 0 exemplary damages, or, as it was equally properly, and possibly better, put, the total award of £40,000 (which included the exemplary element) was so far excessive of what twelve reasonable men could have awarded that it ought to be set set aside and a new new trial ordered, I cannot disgui disguise se from from myse myself lf that t hat I found this this an extremely diff diffic icul ultt point in the case, and have only decided that the verdict should not be disturbed, with great hesitation, because I am very conscious conscious of the fact fact that I would would certainly have awarded awarded far less  myself,  and possibly, to use a yardstick which some judges have adopted as a rule of thumb, less than half the £25,000. A number of factors lead me, however, to the belief that the verdict should should not be disturbed, The firs first, t, and paramount, param ount, consideration in in my my mind is that the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel cases, including the award of damages. I do not think the judiciary judiciary at a t any level level shou should ld substitute itsel itselff for a jury, unless the award is so manifestly too large, as were the verdicts in  Lewis V.  Daily Telegraph Ltd. [1963] 1 Q.B. 340 340 or manifestl manifestly y too too small, as in English and Scottish Co-operative Properties Mortgage and  Investment Society Ltd. V. Odhams Press Ltd. [1940] [1940] 1 K.B. 440, 440, that no sensibl sensiblee jury properly directed could could have reached the conclusion. conclusion. I do not think much depends on the exact formula formula used to describe the test to  be applie applied, d, wheth whether er the traditional traditional lang langua uage ge so large large (or (or smal small) l) " that twelve sensible men could not reasonably have given them":  per Lord Esher M.R. in  Praed  v.  Graham  (1890) 24 Q.B.D. 53, 55 or that of Palles C.B. in  M'Grath v.  Bourne (1876) (1876) Ir.R Ir .R.. 10 C.L. 160, 160, 164 cited by Lord Wright in  Mechanical and General Inventors Co. Ltd. and Lehwess v.  Austin and Austin Motor Co. Ltd.  [1935] A.C. 346, 378, that " no reasonable proportion propo rtion existed existed between between itit and the circumstances circumstances of the case." cas e." The point is that the law law makes the  jury  jury and not the judici judiciary ary the consti constitut tution ional al tribunal, tribunal, and if Parliam Parliament ent had wished the roles to be reversed in any way, Parliament would have said so at the time of the Administration of Justice (Miscellaneous Provisions) Act 1933, since section 6 of that Act expressly excepts defamation actions (otherwise than in a limited class of case) case) from from the general change which which it then authorised. In addition to the above cases counsel for the respondent cited Youssoupoff  v. Metro-Goldwyn-Mayer Pictures Ltd. (1934) 50 T.L.R. 581,

1066 Lord HaUsham of

Br oome oo me v. Cassel Cas selll & Co . (H .L .( E. ))

[1972] [19 72]

St. Marylebone L.C.

583,  584;  Bocock  v.  Enfield Rolling Mills Ltd.   [1954] 1 W.L.R. 1303; Scott  v.  Musial  [1959] 2 Q.B. 429, 436;  Morey v.  Woodfield (No. 2) A (Note) [1964] 1 W.L.R. 16;  McCarey v.  Associated Newspapers Ltd. (No.  2) [1955] 2 Q.B. Q.B. 86 86 and   Broadway Approvals Ltd. V. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805 especia especially lly at pp. 818, 820. I do not see anything in the above cases which alters the principle involved, nor am I aware of anything in the nature of exemplary damages to alter it it in this limited limited clas classs of of case. It may very very we well ll be that, on the B whole, judges, and the legal profession in general, would be less generous than juries in the award of of damages for defamation. But I know of no  princ  principl iplee of reas reason on which hich wou would entitle entitle judge judges, s, whe wheth ther er of appeal appeal or at first instance, to consider that their own sense of the proprieties is more reason able than that of a jury, or which would entitle them to arrogate to them selves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expecte expected d to t o be more generous generous on such matters than judges. I speak with the greater conviction because my own view is that the legal profession is right to be cautious in such matters and juries are wrong if they can be said said to be more generous. generous. But that is not the law law and and I do not think that  judg  judges es who hold hold my view are any any more more enti entitl tled ed to chan change ge the law law on this topic than they have been been in the past. D Counsel very rightly drew our attention to observations of Lord Devlin in Rookes v. Barnard  [1964]   [1964] A.C. 1129 1129,, 1227-1228, when when he said: " I should not allow the respect which is traditionally paid to an assessment of damages by a jury to prevent me from seeing that the weapo we apon n is use used d wi with th restraint. It may even even be that the House may may find find it necessary to follow follow the precedent precedent it set for itse itself lf in  Benham £ v.  Gambling  [1941] A.C. 157, and place some arbitrary limit on awards of damages that are made by way of punishment."

I regard   Benham v.  Gambling  as setting an absolutely necessary but wholly arbitrary rule to solve an absolutely insoluble problem, and I do not think it could readily be extended to exemplary damages for libel simply on the ground ground that judges judges do not agree agree wi with th juries on quantum. I do not p think the first sentence in Lord Devlin's observation means more than that the House will use its legitimate powers to interfere with awards by juries with particular regard to the need for preserving liberty, which he was concerned to express, and, if it means that the House was conferring on itself greater powers than it previously possessed, I would have regarded it as an usurpation of the funct function ion of the legislature as a whole. We were also referred referred to the observations of the Court of of Appeal Appeal in  Ward  v.  v. James G [1966] 1 Q.B. 273, 301. If the passage passage quoted there means means more than that the court, in exercising its undoubted right to interfere with unreasonable verdicts, will have more regard than heretofore to the general level of damages in cases of a similar nature, and particularly personal injury cases, it may need need further consideration. The second second reason reason which which leads me to decline decline to interfere interfere with with the jury's jur y's J J verdict in this case case is the peculiar gravity of of the facts facts of of this case. I share with with Phillimore L.J. the view view [1971] 2 Q.B. 354, 354, 400 400 that the jury must have found that

1067 A.C.

.

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E. ))

c#  Lo»>

Haiisham  of

"the "t hese se we were re grave libels libels perpetrated quite deliberately deliberately and without without regard to their truth by a young man and a firm of publishers interested solely in whether they would gain by the publication of this book. They did not care what distress they caused."

It is true, and I have been constrained to say, that I would have treated this heinous offence against public decency with far less severity than did the  _ jury jury in this case. case. But, at the end of the heari hearing, ng, I foun found d myself as unable unable to say as were the three eminent judges in the Court of Appeal that no twelve reasonable jurors could have come to a different conclusion from matters are ar e very highly highly subjective, subjective, and I do not fee feell myse myself lf myself. These matters entitled to substitute my own subjective sense of proportion for that of the constitutional tribunal appointed by law to determine such matters. I should add, lest I be thought to have overlooked the point, that to C avoid the expense and anxieties of of a new new trial tria l counsel counsel on both sides agreed agreed to leave to us, in case the appeal should succeed, the assessment of any sum to be awarded. I doubt mysel myselff how satisfacto satisfactory ry this would would have been  but, quite obvi obviou ousl sly, y, before before we emba embarke rked d upon upon such such a task task we shou should ld have to be first satisfied that the original verdict could not stand, and to this  preli  prelimi mina nary ry issu issuee the agre agreem emen entt betw betwee een n coun counse sell is nece necess ssar aril ily y irrel irreleva evant. nt. The decision in Rookes Rookes v. Barnard These considerations considerations really really conclude conclude the result result of of this appeal. It must, in my view, view, be dismissed. But, lest other litigants be put to expense expense and uncertainty comparable to that which the parties to this case have, in my view, view, unnecessarily unnecessarily suffe suffere red, d, it is now now unavoidable that t hat I should deal at length with the wider issues in the law of damages on which the Court of E Appeal foun founded ded the greater part of of its judgment. Befor Beforee I do so I ought to remark that, though counsel for the appellants took the point that the trial judge should have withdrawn the question of the paper back edition from from the jury, I regard the way in which which he left left it to them as so favourable to the appellants as not to justify a new trial on that ground alone. The judgment of the Court of Appeal was based on the simple proposi p tion tion that the decis decisio ion n in  Rookes V. Barnard  [1964]   [1964] A.C. 1129 so far as it affe affect cted ed punitive or exemplary damages was made per incuriam and without  prior  prior argume argument nt by coun counse sell and and that judg judges es shou should ld in futu future re igno ignore re it as unworkable, and that, in directing juries, judges of first instance should return to the status quo ante   Rookes v. Barnard  as   as if that case had never  been  been deci decide ded d at all. I have already said, and will not repeat, what I think about the propriety G of the Court of Appeal in doing this at all, and the appropriateness, in view view of the the consequences to the parties, parties , of of their their doing it in in this case. I now now  proc  procee eed d to cons consid ider er how how far far their their opin opinio ions ns are correct. correct. I make no complaint of their view that  Rookes v. Barnard  clearly   clearly needs reconsideration by this House, if only because of the reception it has receive received d in Australia, Austra lia, Canada Canada and New New Zealand. Zealand. I vie view w with dismay dismay the JJ doctrine that that the common common law law should dif diffe ferr in diff differe erent nt parts part s of the Commonwealth, which is the effect of the decision in   Australian Consoli 590, and anything one can can do in dated Press Ltd. v.  Uren [1969] 1 A.C. 590, this case to bring the th e various strands strands of thought in differe different nt Commonwealth

1068 Lord Haiisham of

Broo Br oome me v. Cassell Cas sell & Co . (H .L .( E. ))

[1972] [19 72]

St. Marylebone L.C.

countries together together ought ought to be done. Moreover, Moreover, as I shall shall show, show, many many of . Lord Devlin's statements have been misunderstood, particularly by his critics, and the view view of the House House may well well have suffer suffered ed to some extent from from the fact fact that t hat its reasons were were given given in a single speech. Whatever the advantages of a judgment of an undivided court delivered by a single voice, the result may be an unduly fundamenta fundamentalist list approach to the actual language language employed. Phrases which which were were clearly clearly only illustrative or descriptive can  be treate treated d in isol isolat atio ion n from from their their conte context xt,, as being being defi defini niti tive ve or exhausti exhaustive. ve. B 1 am convinced that this has happened here and that to some extent at least, the purpose and nature of Lord Devlin's exposition has been misunder stood. The law before Rookes V.  V. Barnard Whatever else may be said, the Court of Appeal's judgment is based on Q one assumption assumption whic which h is plainly plainly incorrect. This assumpt assumption ion is, to to quote its most characteristic characterist ic expression expression on the lips of Lord Denning M.R., [1971] 2 Q.B. 354, 354, 379: " Prior to  Rookes v. Barnard, the law as to exemplary damages damages was was settled." In point of of fact, fact, it was was nothing nothing of of the kind. Lord Denning M.R. went on immediately to quote from Mayne and  MacGregor   MacGregor 12th ed. (1961), (1961), the followi following ng passage from from para. par a. 207 2 07:: on Damages, 12th

"Suc "S uch h damages damages are variously variously called called punitive damages, damages, vindictive vindictive damages, exemplary damages, and even retributor retri butory y damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so when his conduct is wanton, as where it discloses fraud, malice, violence, violence, cruelty, insolence, or the like, or, as it is sometimes put, where he acts in contumelious disregard of the  plai  plaint ntif iff' f'ss rights rights . . . Such Such dama damage gess are reco recogn gnis ised ed to be recov recover erabl ablee E in appropriate cases of defamation;" If Lord Denning M.R. had gone on to quote from paragraph 212 of the same edition he would have read the following passage, inconsistent with his construction of the foregoing, under the heading " A Double Rationale " which should, I hope, have disabused him of the idea that the law of  punit  punitive ive dama damage gess wa wass in fact fact sett settle led d prior to  Rookes v.  Barnard. The F  pass  passag agee is as as follow follows: s: " 3.  A Double Rationale " Through all these various cases, however, runs another thread, giving a very different explanation of the position. For indeed it cannot be  that  English said  that   English law has committed  itself  itself finally and fully to exemplary damages, and many of the above cases point to the   rationale  not of  "  punishment of the defendant but of extra compensation for the  plaintiff for the injury to his feelings  and dignity. This is, of course, not exemplary damages at all. It is another head of non-pecuniary loss to the plaintiff."  (The  (The italics are mine). Indeed, in the well-known American textbook on  The Law of Damages Q  by the the late Prof Profes esso sorr Charl Charles es T. McCor McCormi mick ck,, publi publish shed ed in 1935 by by the West West Publishing Company of Minnesota occurs the following passage to the same effect on p. 278:

1069 A.C.

Broome v. Cassell & Co. (H.L.( (H. L.(E.) E.)))

„ i f jd HaHsham of St.. Marykbone Marykbone L.C. L. C.

.

" I n England, where where exemplar exemplary y damages damages had their origin, origin, it is still still not entirely clear whether the accepted theory is that they are a distinct and strictly punitive element of the recovery, or they are merely a swollen or ' aggravated' allowance of compensatory damages permitted in cases cases of of outrage. It is only only in America America that the cases cases have clear clearly ly separated exemplary from from compensatory damages, and it is only here that the doctrine, thus definitely isolated, has been attacked and B criticised." More characteristic than either of these passages and more illustrative of the confusion which reigned before Rookes v. Barnard  is   is die paragraph  Halsbury's Laws of England, on the subject in Lord Simonds' 3rd edition of  Halsbury's vol. 11 (1955) title " Damages "; p.  233, para. 391: " Exemplary damages. Where the wounded feelin feeling g and injured pride pride C of a  plaintiff,  or the misconduct of a defendant, may be taken into consideration, the principle of restitutio in integrum no longer applies. Damages are then awarded not merely to recompense the plaintiff for the loss he has sustained by reason of the defendant's wrongful act,  but to punis punish h the defen defenda dant nt in an exem exempl plar ary y manner manner,, and and vindi vindica cate te the distinction between between a wilf wilful ul and an innocent wrongdoer. wrongdoer. Such Such damages damages are said said to be ' at large,' and, further, have been been cal called led n exemplary, vindictive, penal, punitive, aggravated, or retributory." This passage clearly clearly shows shows the extraordina extraordinary ry confusi confusion on of terminology reflecting differences in thinking and principle which existed up to 1964. Apart from anything else, " aggravated " damages, classed as compensatory  by Mayn Maynee and MacG MacGreg regor, or, and by Pro Profe fess ssor or Mc McCo Corm rmic ick, k, are assi assimi mila late ted d to exemplary exemplary or punitive damages damages as such, such, as is is the phrase damages damages " a t large,"—an expression so indefinite in its connotation that counsel for the appellants in argument felt able to include within it (as this passage suggests inappropriatel inappropriately) y) even the general damages for for pain and suffe sufferi ring ng in a  person  personal al inju injuri ries es ca case se.. Clearl Clearly, y, befo before re  Rookes v,  Barnard,  the thinking and the terminology alike called called aloud for further investigation investigation and exposi tion, and, since since in such such cases it is the classic classic func functio tion n of this House to F make such reviews, reviews, I cannot accept the t he simpliste simpliste doctrine of of the Court Court of Appeal either that there was no need to make it, or that the only thing to restore clarity clarity is to go back back to the state state of of the law as it was in 1963, In  pass  passin ing, g, I may may say that I do not attach attach so much much import importanc ancee as did did the Court of Appeal to the circumstance that the two categories mentioned  by Lord De Devl vlin in had neve neverr been been disc discus usse sed d in argum argument ent by coun counse sel. l. The cases and textbooks on exemplary damages had been exhaustively read, ** and when when this House undertakes u ndertakes a careful careful revi review ew of of the law it is not to  be desc descri ribe bed d as ac acti ting ng per incu incuria riam m or ultra vire viress if it iden identi tifi fies es and expounds principles not previously apparent to the counsel who addressed it or to the the judges and text book writers writers whose divergent or confusin confusing g expressions led to the necessit necessity y for the the investigation. investigation. Of course, course, in a sense, it would be easy enough to direct a jury under the old law if one simply J J said said to them that any conduct of whic which h they they chose on rational rationa l grounds to disapprove would give rise to an award of exemplary damages and that any sum they chose to think appropriate as the penalty would be acceptable. But no one in recent years has ever thought this, although it is noteworthy

1070 Lord Haiisham of Si. Marylebone L.C.

Broome Broom e v. Cassell Cassell & Co. Co . (H.L (H .L.( .(E. E.)) ))

[1972] [19 72] l

that as recently as 1912 the author of Sedgwick's  A  Treatise on the Measure . of Damages, 9th ed., vol. I, para. 349, pp. 688-689 was writing: " Until comparatively recent times juries were as arbitrary judges of the amount of damages as of of the facts facts . . . Even as late as the th e time time of Lord Ma Mans nsfi fiel eld d it was possible for counsel to state sta te the law to be that ' T h e court cannot cannot measure measure the ground ground on whic which h the jury jury find damages that may be thought large; they may find upon facts within their own knowledge. . . .' . . . The doctrine of exemplary B damages is thus seen to have originated in a survival in this limited   arbitrary power of the jury."  (Italics mine.) class of cases of the old  arbitrary Clearly modern juries must be given adequate professional guidance and the object of Lord Devlin's opinion in  Rookes v.  Barnard  was   was to enable them to have it. Speaking Speaking for   myself,  and whatever view view I formed formed of the categories, categories, I would would find it imposs impossible ible to return to the chaos which which is C euphemistically euphemistically referred to by by Phillimore L.J. [1971] 2 Q.B. 354, 399 399 as " the law as it was before before Rookes v. Barnard." Before I examine the actual decision in  Rookes v. Barnard  I   I would now  propose  propose to make two two sets sets of of observ observat ation ionss of a genera generall charact character. er. The first relates to the context in which damages must be awarded, the second to  case. the terminology to be used in particular classes of  case. D The subjective element  in  in damages Of all the various remedies available at common law, damages are the remedy of most general application at the present day, and they remain the  prime  prime reme remedy dy in ac acti tions ons for brea breach ch of contrac contractt and tort. They They have have been been defined as " the pecuniary compensation obtainable by success in an action for for a wrong wrong which which is is either either a tort or a breach of of contrac con tract." t." They must normally be expressed in a single sum to take account of all the factors applicable to each cause of action and must of course be expressed in MacGregor on Damages, 12th ed. (1961), English currency: Mayne and MacGregor  para. 1. In almost all actions for breach of contract, and in many actions for tort, the principle of of restitutio in integrum integrum is an adequate and fairly fairly eas easy y p guide to to the estimation of damage, because the t he damage suf suffe fere red d can be estimated estimated by relation to some some material loss. It is true that where loss includes a pre-estimate of future losses, or an estimate of past losses which cannot in the nature of things be exactly computed, some subjective element must enter in. But the estimate estimate is in things commensurable commensurable with with one another, and convertible at least in principle to the English currency in which which all sums of damages must ultimately be expressed. ® In many torts, torts , however, however, the subjective subjective element element is more diffi difficul cult. t. The  pain  pain and and suffering endure endured, d, and and the future future loss loss of amen amenit ity, y, in a person personal al injuries case are not in the nature of things convertible into legal tender. The The diffic difficult ulties ies arising in the paraplegic par aplegic cases, or, before  Benham v. Gambling [1941] A.C. 157, in estimating the damages for loss of expecta tion of life life in a person person who who died died instantaneously, are only examples examples of the J J intrinsically impossible impossible task set judges or juries in such such matters. matte rs. Clearly the £50,000 award upheld in  Morey v.  Woodfield (No. 2) (Note)  [1964] 1 W.L.R. 16 could never compensate the victi victim m of of such an accident. Nor, so so

1071 A.C.

Br oome oo me v. Cassel Cas selll & Co . (H .L .( E. )) v

K 

"

„ Lord Haiisham of S«. S«. Marylebone L.C. L. C.

.

far as I can judge, is there any purely purely rational test by which which a judge can calculate what sum, sum, greater or smaller, smaller, is appropriate. appropr iate. What is surprising surprising is not that there is difference of opinion about such matters, but that in most cases professional opinion gravitates so closely to a conventional scale. Nevertheless Nevertheless in all all actions in which which damages, damages, purely compensatory in character, are awarded for suffering, from the purely pecuniary  point  point of vie view the plai plaint ntif ifff may may be better better off. The princip principle le of restitu restitutio tio B in integrum, which which compels the use of money as its sole sole instrument for restoring restoring the status quo, necessaril necessarily y involv involves es a factor larger than any  pecuni  pecuniary ary loss loss.. In actions actions of of defamation and in any other actions where damages damages for loss of reputation are involved, the principle of restitutio in integrum has neces sarily an even even more highly highly subjective subjective element. Such Such actions involve involve a  _ mone money y aw awar ard d whic which h may may put the pla plainti intiff ff in a purel purely y fina financ ncia iall sens sensee in a much stronger stronger position than he was before before the wrong. wrong. Not merely merely can can he recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a by stander stander of of the the baselessn baselessness ess of of the charge. As Windeyer J. wel welll said in  Uren v. John Fairfax & Sons Pty. Ltd., 117 117 C.L.R. C.L.R. 115, 150: ^

g

" I t seem seemss to me that, properly speaking, speaking, a man defame defamed d does does not get compensation for  his damage damaged d reputation. He gets damages damages because he was injur injured ed in his reputation, that is simpl simply y because because he was was  publ  public icly ly defa defame med. d. For this this reason reason,, comp compen ensa sati tion on by dama damage gess operat operates es in two ways— ways—as as a vindication of the plain plaintif tifff to the public and as consolation to him for a wrong wrong done. Compensation is here a solatium rather than a monetary recompens recompensee for harm measurable measurable in money."

This is why it is not necessarily fair to compare awards of damages in this fiel field d with damages for personal personal injuries. injuries. Quite obviously, obviously, the award award must include factors for injury to the feelings, the anxiety and uncertainty under gone in the litigation, the absence of of apology, or or the th e reaffi reaffirma rmation tion of the truth truth of of the matters matter s complained complained of, of, or the malice malice of the defendant. The bad F conduct of of the the plain plainti tiff ff hims himsel elff may also enter into the matter, matter, where where he has  prov  provok oked ed the libel, libel, or wher wheree perhaps he has has libel libelle led d the defe defend ndan antt in reply reply.. What is awarded is thus a figure which cannot be arrived at by any purely objective objective computatio computation. n. This is what is meant when when the damages in defam defam ation are describe described d as being being " at large." large ." In a sense, sense, too, these damage damagess are ar e of their nature punitive or exemplary in the loose sense in which the terms used before 1964 1964,, because they they infli inflict ct an added burden on the defen defen ~ were used dant proportionate to his conduct, just as they can be reduced if the defendant has behaved well—as for instance by a handsome apology—or the plaint plaintiff iff badly, as for instance by provoking the defendant, or defaming defaming him in return. return . In all such such case casess it must be appropriate appropri ate to say say with Lord Esher M.R. in Praed  v.  v. Graham, 24 Q.B Q.B.D .D.. 53,5 53 ,55: 5: IT " . . . in ac acti tion onss of l i b e l . . . the jury jury in asse ssessi ssing dama damage gess are are enti entitl tled ed to look look at the whole whole conduct of of the defe de fend ndan ant" t" (I woul would d personall personally y add "a " a n d of the plaintiff") "from "fr om the time time the libe libell was was publi publishe shed d down down to t o the time they they give give their verdict. They may consid consider er what what

1072 Lord Haiisham ot

Broome v. Cassell Cassell & Co. (H.L (H .L.( .(E. E.)) ))

[1972] [19 72]

St. Marylebone L.C.

his conduct has bee been n before before action, after after action, and and in court during the trial." It is this too which explains the almost indiscriminate use of " at large," " aggravated," aggr avated," " exemplar exemplary y " and " punitive " before before  Rookes V.  Barnard. To quote quote again from from Professor Professor McCormick's McCormick's work, it was originally originally only in America that the distinction between " aggravated " damages (which lake into account the defendant's bad conduct for compensating the  plai  plaint ntif iff' f'ss inju injure red d feeli elings ngs) and and " puniti punitive ve " or " exemp exempla lary ry " dama damage ge wa wass really drawn. My own own vie view w is that in no English case, and perhaps perh aps even even in in no statute, where the word " exemplary " or " punitive " or " aggravated " occurs before 1964 1964 can one be absolutely sure su re that that there there is no element of confusi confusion on between between the two element elementss in in damages. It was not until Lord Lor d Devlin's speech in  Rookes v.  Barnard  that   that the expressions " aggravated," on the one hand, and and " punitive punitive " or " exemplary," on the other, acquired acquired separate and mutually exclusive meanings as terms of art in English law. The next point to notice is that it has always been a principle of English law that the award of damages when awarded must be a single lump sum in respect respect of of each separate separate cause of action. Of course, where where part par t of of the damage can be precisely calculated, it is possible to isolate part of it in the same cause of action. It is also possible possible and desirable to isolate diffe differen rentt sums of damages receivable in in respect of of diffe differen rentt torts, torts, as was was done here in respect of of the the proof proof copies. But I must say I view view with with some distrust distru st the arbitrary subdivision of different elements of general damages for the same tort as was done in  Loudon v. Ryder  [1953] 2 Q.B. 202, and even, even, subject to what I say later, what was expressly approved by Lord Devlin in  Rookes v. Barnard  [1964]   [1964] A.C. 1129 1129,, 1228 1228 for the laudable laudable purpose purpose of avoiding a new new trial. tri al. In cases cases where where the award of of general damages contains a subjective element, I do not believe it is desirable or even possible simply to add separate sums together for different parts of the subjective element, especially where, as was done by agreement in this case, the subjective element element relates under under differe different nt heads to the same factor, in this case case the bad conduct of of the defendant. defendant. I woul would d think with with Lord Atkin in Ley v.  Hamilton,  15 153 L.T. 384, 384, 386: " T h e 'pu 'p u niti ni tiv v e' elem elemen entt is not some somethi thing ng which is or can " (italics mine) " be added to some some known known factor which which is non-punitive," or in the words of Windeyer J. in   Uren v. Fairfax & Sons Pty.Ltd., 117C.L.R. 118,150:

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" The variety of the matters which, it has been held, may be con sidered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of  inextricable considerations." consideratio ns." (Italics (Italics again again mine.) mine.) G In other words the whole process of assessing damages where they are " at large " is essenti essentiall ally y a matter of impression impression and not addition. When When exemplary damages are involved, and even though, in theory at least, it may  be poss possib ible le to winnow nnow out out the pure purely ly punit punitive ive elem elemen ent, t, the dang danger erss of double counting by a jury or a judge are so great that, even to avoid a new trial, I would would have thought thought the dangers usuall usually y outweig outweighed hed the advantages, advantages, J J Indeed, though it must be wholly illegitimate to speculate in such a matter, the thought crossed my mind more than once during the hearing that it may even have happened in this case.

1073 A.C. 

Broome v.  Cassell & Co . (H.L.(E.))

„ L»'<1 Hajisbam of  of St. Marylebone L.C.

B

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D

 p

G

JJ

Terminology This brings me to the question of of terminology. It has been more than once pointed out the language of damages is more than usually confused. For instance, the term " special damage " is used in more than one sense to denominate actual past losses precisely calculated (as in a personal in  juries  juries act action ion), ), or "materi "ma terial al damage damage act actua uall lly y suffered" suffered" as in desc descri ribi bing ng the factor necessary to give rise to the cause of action in cases, including cases of slander, actionable actionab le only only on proof proof of " special damage dam age." ." If itit is not too deeply embedded in our legal language, I would like to see " special damage damage " dropped as a term of art a rt in its latter sense and and some phrase like " material loss loss " substituted. substituted. But a similar similar ambigui ambiguity ty occurs in in actions of defamation, defamation, the express expression ionss " at large," larg e," " punitive," puniti ve," " aggravated," " retributory," " vindictive" and " exemplary " having been used, as I have pointed out, in inextricable confusion. confusion. In my view it is desirable to drop the use of the phrase " vindictive " damages altogether, despite its use by the county court judge in  Williams v.  Settle  [1960] [1960] 1 W.L.R. 1072 1072.. Even when when a purely punitive element element is involved, vindictiveness is not a good motive for awarding punishment. In awarding " aggrav aggravated ated " damages damages the natural indignati indignation on of the court at the injury injury inflic inflicted ted on the plain plainti tiff ff is a perfecdy perfecdy legitimate motive in making making a generous generous rather than a more moderate award to provid providee an adequate adequa te solatium. But that that is because the injury to the plai plainti ntiff ff is actually greater and, as the result of the conduct exciting the indignation, demands a more generous solatium. Likewi Likewise se the use of " retr re trib ibut utor ory" y" is objectionabl objectionablee because because it is ambiguous. It can be used used to cover cover both aggravated damages to compencompensate the plain plaintif tifff and punitive or exemplary damages purely to punish the defendant defendant or hold hold him him up as a s an example. example. As between " punitive " or " exemplary," one should, I would suppose, choose one to the exclusion of the other, since it is never wise to use two quite interchangeab interchangeable le terms to denote the same same thing. thing. Speakin Speaking g for  for  myself,   myself, I prefer prefer " exemplary," not because " punitive punitive " is necessari necessarily ly inaccurate,  but " exempl exemplar ary y " better better expr expres esse sess the polic olicy y of the law law as expr expres esse sed d in the cases. cases. It is intend intended ed to tea teach ch the defe defend ndan antt and others others that " tort does does not pay" by demonstrating what consequences the law inflicts rather than simply simply to make make the defendant suff suffer er an extra penalty for what he he has done, although that does, of course, precisely describe its effect. The expression " at large " should be used in general to cover all cases where awards of damages may include elements for loss of reputation, injured feelings, bad or good conduct by either party, or punishment, and where in consequ consequence ence no precise precise limit can be set in extent. It would would be convenient if, as the appellants' counsel did at the hearing, it could be extended to include damages for pain and suffering or loss of amenity. Lord Devlin uses the term in this sense in Rookes v. Barnard  [1964]   [1964] A.C. 1129, 1221, 1221, when when he defi define ness the phrase as meaning meaning all cases wher wheree " t h e award is not limited to the pecuniary loss that can be specifically proved." But I suspect that tha t he was was there there guilty of a neologism. neologism. If I am wrong, it is a convenient use and should be repeated. Finally, it is worth pointing out, though I doubt if a change of terminology is desirable or necessary, that there is danger in hypostatising

1074 Lord Haiisham of

Broome Broome v. Cassell Cassel l & Co. Co . (H.L (H .L.( .(E. E.)) ))

[1972] [1972]

St. Marylebone L.C.

" compensatory," compensatory, " " punitive," puniti ve," " exemplary exemplary " or " aggravat aggravated ed " damages at all. all . The epithets are all element elementss or considerations considerations whic which h may, may, but wit with h the exception of the first need not, be taken into account in assessing a single sum. They are not separate heads to be added mathematically mathematically to one another.

.

 Analysis of Rookes v.  Barnard

This being said, it is necessary to analyse the decision in   Rookes v. must be remembere remembered, d, of of intimidation and not libel. libel. The  Barnard, a case, it must only actual decision on damages must be looked for on pp. 1232-1233 where where Lord Devlin Devlin says: " I doubt whether the facts disclosed in the summing-up show even a case for aggravated damages; a different impression may be obtained when when the facts facts are ful fully ly displa displayed yed upon a new new trial. At present present there seems to be no evidence that the respondents were motivated by malevol malevolence ence or spite spite against against the appellant. They wron wronged ged him not  primar  primarily ily to hurt him him but so as to ac achi hiev evee their own ends. If that had not been their dominating motive, then what they did would not have been been done in furtherance furtherance of a trade tra de dispute and the t he whole whole case case has been fought fought on on the basis that it was. It is said that they persisted in believing that their closed shop position was endangered by the appellant's conduct even when their official leaders told them that it was not. Be it so; pig-headedne pig-headedness ss wil willl not do. Again, in so far as disclosed in the summing-up there was no evidence of offensive conduct or of of arrogance or insolence. insolence. It was, I think, sugge suggest sted ed that tha t some some impolite observations were made about the appellant, but that is not enough; enough; in a dispute dispute of of this sort feel feelin ings gs run high high and and more than hard words are ar e needed needed for aggravated aggravated damages. Mr. Silkin Silkin relied strongly strongly on the flagrant breach of contract with B.O.A.C. and the respondents' open disregard of of their pledges pledges and their lack of consideration. But this was was not conduct that aff affec ecte ted d the appellant. He was no more distressed or humiliated by it than any of B.O.A.C.'s passengers whose convenien convenience, ce, it might might be said, and and interests were were brushed aside by the respondents in their determination to secure their object."

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Although, as will be seen, I prefer much of what Lord Devlin said on the subject of exemplary damages to what has been said by his subsequent critics, and propose to follow it, the decision in  Rookes v. Barnard  must  must be viewed viewed in the light of these conclusions. It is not verbally inspired. inspired. But Q it is a carefu carefull and valuable decisio decision n not lightly lightly to be set aside. The passages in the report: which have given rise to criticism and dis cussion cussion go from from p. 1220 1220 to the top of p. p . 1231 1231 of the Law Report Report and can  be divi divide ded d conv conven enie ient ntly ly into into the foll follow owin ing g parts. The first part consists in exposition of the authorities and principles which is contained in pp. 1220-1225 where Lord Devlin begins to draw his conclusions. „ These conclusions, which form the second portion of his opinion, include the three " alleged categories " (pp. 1225-1227), the three " considerations " 1230-1 -123 231 1 the the commen commenta tary ry and and exposi expositi tion on of finally pp. 1230 (pp. 1227-1230) (pp. 1227-1230) and finally

1075 A.C. 

Broome  v. Cassell & Co. (H.L.(E.)) v

'

c,

Lord Haiisham oi

St. Marylebone Marylebone L.C .

the consequences of what he has said and these occupy the rest of the  pass  passag agee under under discu discuss ssio ion. n. Was the decision per  incuriam?  incuriam?  Now,  Now, I think think I must must protest at the outs outset et at the theory theory that Lord De Devl vlin in (or those members of the House who agreed with him) was speaking " per incuriam." incuriam ." I have already already dealt with with the argumen argumentt that his conclus conclusion ionss B did not follo follow w the actual submissions submissions of of counsel on either side. Lord Devlin was, of course, perfectly well aware that, in drawing these conclusions from the authorities, he was making new law in the sense in which new law is always made when an important new precedent is established. established. Thus, he said, at p. 1226: " I am well aware that what I am about to say will, if accepted, impose C limits limits not hitherto express expressed ed on such such awards and that there is powerf powerful, ul, though not compe compelli lling, ng, authority for allowin allowing g them them a wider wider range. I shall not, therefore, conclude what I have to say on the general  prin  princi cipl ples es of law law wi with thou outt retur returnin ning g to the author authoriti ities es and and makin making g it clear to what extent I have rejected the guidance they may be said to afford."

D But a judge is always always entitled entitled to do this whe when n the exact limits, rationale, and the extent of a principle is being discussed, and when those limits, rationale, and extent have never been authoritatively defined.  Nor can it be said said fair fairly ly that he had had igno ignore red  d  Ley v.  Hamilton,  153 L.T. 384. In fact he quoted from from it at length and treated it, making making allowance for the confusion in the legal terminology at the time to which I have already drawn attention, as a case case of " aggravated aggravated " damages. I think think " he was was right right in so so doing; although although I also think Salmo Salmon n L.J. was almost certainly right in thinking that the inverted commas in which Lord Atkin  puts " puni puniti tive ve " are not a guid guidee to its meani meaning ng.. The word word is in inver inverted ted commas for the same reason that " real" in the earlier passage is in inverted commas. They are quotation marks and Lord Atkin was quoting the actual words in the judgment of Maugham LJ. which he was criticising. F It is a fairer critic criticism ism of Lord Devl Devlin in to say say that he did not mention mention  E. Hulton & Co.  v.  Jones  [1910] A.C. 20. Both Mr. Hewart in argument in that case and Lord Loreburn L.C. in his speech, at p. 24, which may have been extempore, reflect a view of the law of damages for libel apparently at variance with the law as Lord Devlin has now declared it to show, the diff differ eren ence ce is more apparent than real. It is  be. But, as I shall show, diff diffic icul ultt to square either Mr. M r. Hewar H ewart's t's argument or the passage of of Lord L ord ^* Loreburn L.C.'s L.C.' s speech speech with with the explicit explicit admission admission made in the Court of Appeal and repeated in the facts stated on p. 20 of the report that the use of the name " Artemus Jones " by the editor and author was innocent, and it is on this basis that the case is is normally cited as an authority. authority . Judging the use made of the case in the Court of Appeal by their own criteria of Lord Devlin, the case is certainly not a binding authority on the law of exemplary H damages. It was never argued argued as such, although although the observations observations of of Lord Loreburn L.C. can be fairly used as testimony, and even as persuasive authority, for the state of legal thinki thinking ng at the time. In law, law, howev however, er, if Lord Devlin be right, the law of exemplary damages was still evolving,

1076 Lord Haiisham of

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and   E. Hulton & Co. v. Jones made no pretence at altering altering or def defini ining ng it, nor did either counsel in the case argue the case in terms which raised the question in its present form.

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 Did Rookes v. Barnard extend exemplary damages  to fresh torts? Having Having rejected rejected the theory that th at Lord Lor d Devlin's speech speech can can be pushed pushed aside as having been delivered per incuriam, I hope I may now equally dispose dispose of another misconcepti misconception. on. I do not think think that t hat he was under the B impression either that he had completely rationalised the law of exemplary damages, nor by listing the " categories " was he intending, I would would think, thi nk, to add to the number of torts for which exemplary damages can be awarded. Thus Thus I disagree with with the dictum dictum of of Widge Widgery ry L.J. in  Mafo v.  Adams [1970] 1 Q.B. 548, 558 558 (which, (which, for for this t his purpose, can be treated Q as an action for deceit) when he said: " As I understand Lord Devlin's speech, the circumstances in which exemplary damages may be obtained have been drastically reduced,  but  but the range range of offences in resp respec ectt of whic which h they they may be grante granted d has  been  been increa increased sed,, and I see see no reas reason on sinc sincee  Rookes v,  Barnard  [1964]   [1964] A.C. 1129 A.C. 1129 why, when considering a claim for exemplary damages, one should should regard the nature of the tort as exclud excluding ing the claim." This would be a perfectly logical inference if Lord Devlin imagined that he was substituting a completely rational code by enumerating the categories and stating the considerations. considerations. It is true, of course, that actions for deceit could well come within within the t he purview purview of of the second second category. But I can see see no reason for thinking that Lord Devlin intended to extend the category to deceit, and counsel on both sides before us were constrained to say that, though though it may be paradoxical, paradoxical , they were were unable to fin find d a single single case case where E either exemplary or aggravated damages had been awarded for deceit, despite the fact that contumelious, outrageous, oppressive, or dishonest conduct on the part of the defendant is almost inherently associated with it. The explanation may lie in the close close connection connection that tha t the action has always always had with with breach of contract: contra ct: see the discuss discussion ion in  Mayne and  4 1,  especially at para. 968.  MacGregor,  MacGregor, chapter  41, p Where solatium is enough

The true explanation of   Rookes v.  Barnard   is to be found in the fact that, where damages for loss of reputation are concerned, or where a simple outrage to the individual or to property is concerned, aggravated damages in the sense I have explained can, and should in every case lying outside the categories, categories, take care of the exempl exemplary ary elemen element, t, and the jury should should " neither be encouraged nor allowed to look beyond as generous a solatium as is required for the injuria simply in order to give effect to feelings of indignation. indignation. It is not that the t he exempla exemplary ry element element is excluded excluded in in such such precisely y because in the nature nature of things it is, and should be, cases. It is precisel included in every such case that the jury should neither be encouraged nor allowe allowed d to look for for it outside the solatium solatium and then to add to the J J sum awarded another sum by way of penalty additional to the solatium. To do so would be to inflict a double penalty for the same offence. The surprising thing about  Rookes v.  Barnard  is   is not that Lord Devlin

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restricted the award award of of exemplary damages viewed viewed as an addition to or substitution for damages by way of solatium to the three so-called categories,  but that he allow allowed ed the three so-ca so-call lled ed cat catego egorie riess to exis existt by way way of of excep excep tion to the general general rule. That he did this is due at least least in in part to the fact fact that he felt himself bound by authority to do so, but partly also because he thought that there were cases where, over and above the figure awarded for loss of reputation, for injured feelings, for outraged morality, and to B enable a plaint plaintiff iff to protect prote ct hims himsel elff against future calumny or outrage of of a similar kind, an additional sum was needed to vindicate the strength of the law and act as a supplement to its strictly penal provisions (cf. what he says says at pp. 1226,123 1226,1230 0 of of the report). Q

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 v . Barnard unworkable?  Is Rookes v. I confes confesss I am quite unable to see see why why such such a view view of the matter is " unworkabl unwo rkable." e." As I have already pointed out, it has been worked worked in fact fact for nearly eight years. On the contrary, by insisting insisting on a single single sum sum being being awarded for outrageous behaviour in nearly every case of tort, and allowing the jury full vent to their legitimate feelings within the proportions set by the injury involved, it seems to me that judge and jury are set an inherently less dif diffi ficu cult lt task than if they were were told told first first to take ta ke into account the t he aggravating aggravating factors, and then to impose an additional addition al " fine fin e " for the siz sizee of which they have neither the qualifications nor any measure by which they can limit their discretion, particularly since neither counsel nor the  judge  judge can mentio mention n particular particular figures figur es which which can have have any releva relevance nce to the actual actual case. The Th e diffi difficu culty lty consists, not in working the syst system em of of aggravated and purely compensatory damages, where they apply, as they do in almost ever every y ca case se of contum contumeli elious ous conduc conductt under Lord Devlin's Devlin's opinion opinion,, but in working a system of punitive damages alongside the system of aggravated and compensatory compensatory damage. This dif diffi ficu cult lty y exists whether Lord Devlin's limitation to the categories be right or wrong and, if it were wrong, would exist in in every case, and not only in in a small small minority of of cases. The diff diffic icul ulty ty resides in the fact that the thinking underlying the th e two syste systems ms is as incompatible as oil and vinegar, the one based on what the plaintiff ought to receive, receive, the other based on what 12 reasonable, but otherwis otherwisee uninstructed, men and women think the defendant ought to pay.

The meaning of the categories As regards the meaning of the particular categories, I have come to the conclusion that what Lord Devlin said was never intended to be treated G as if if his words were verbally inspired, and much of of the criticism criticism of them which has succeeded reports of the case has been based on interpretations which are false to the whole context and unduly literal even when taken in isolation from it. The only category exhaustively discussed before us was the second, since the first fir st could obviously obviously have no application to the instant case. But I TT desire to say of of the th e first fir st that I would would be surprised surprised if it included only only servants of the t he Government Government in the strict sense sense of the word. It would, in my view, obviously apply to the police, despite  Attorney-General  for New South Wales v. Perpetual Trustee Co. Ltd. [1955] A.C, A. C, 457, and almost

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as certainly certainly to local and other off offic icia ials ls exercising exercising improperly rights of of search . or arrest without warrant, and it may be that in the future it will be held to include other abuses of power without warrant by persons purporting to exercise exercise legal legal authority. What it wil willl not include include is the simple simple bully, bully, not because the bully ought not to be punished in damages, for he manifestly ought, but because an adequate award of compensatory damages  by way way of sola solati tium um wi will ll nece necess ssar aril ily y have have punishe punished d him. him. I am not prepared prepared to say say without without further consideration consideration that th at a private individual misusing misusing B legal powers of private prosecution or arrest as in  Leith v.  Pope (1779) 2 Wm.Bl. Wm.Bl. 1327, 1327, where the defendant had h ad the plaint plaintiff iff arrested arrested and tried tried on a capital charge, might not at some future date be assimilated into the firs firstt category. category. I am not prepared to make an exhaustive exhaustive list list of of the emanations emanations of of government government which might or might might not be included. But I see no reason to extend it beyond this field, to simple outrage, malice or contumeliou contumeliouss behaviour. In such such cases a properly directed jury will will not ^ find find it necessary to differentiat differentiatee between between what the plaintif plaintifff ought to receive and what the defendant ought to pay, since the former will always include the latter to the extent necessary to vindicate the strength of the law. When one comes to the second category, we reach a field which was more exhaustively exhaustively discussed discussed in the case before us. It soon became apparent that a broad rather than a narrow interpretati interpretation on of Lord Devlin's Devlin's D words was absolutely essential, and that attempts to narrow the second category by a quotation out of context of one sentence from the passage wherein wherein it is defi defined ned simply simply will not do. d o. Lord Lor d Devlin Devlin founded his second category on a sequence of cases beginning with  Bell v. Midland Railway Co.  (1861) 10 C.B.N.S. 287, and on the judgment of Maule J. in  Williams v.  Currie  (1845) 1 C.B. 841, 848 and the dictum of Martin B. in Crouch v.  Great Northern Railway (185 (1856) 6) 11 Exch. 742, 759. None of  of  E these were were examples of of precise calculation of of the balance balance sheet type. Then he said, at p. 1227: " I t " (that is the motive of of making a prof profit) it) " is a factor also that is taken into account in damages for libel; one man should not be allowed to sell sell another man's man's reputation for profit profit.. Where a defendan defendantt with a cynical cynical disregard disregard for for a plaintif plaintiff's f's rights has calculated calculated that the money money to F  be made made out out of his his wron wrongd gdoi oing ng wi will ll probabl probably y exce exceed ed the dama damage gess at risk, it is necessary for the law to show that it cannot be broken with impunity.   This category is not confined to moneymaking in the strict sense. It extends to cases in which the defendant is seeking to gain at  —  the expense of the plaintiff  some   some object   perhaps some property which he covets — which which either he could not obtain at all or not  obtain  obtain except  Q, at a price greater than he wants to put down. Exemplary damages can properly be  awarded whenever  it  it is necessary to teach a wrongdoer that  tort  (Italics mine.)  tort does not pay."  (Italics Even a casual reading of the above passage shows that the sentence: " Where a defendant defendant with a cynical cynical disregard for a plaintiff' plaintiff'ss rights has calculated that tha t the money money to be be made out of his wrongdoing wrongdoing wi will ll probably probably n exceed the damages at risk, it is necessary for the law to show that it cannot  be broken broken wi with th impuni impunity ty " is not intend intended ed to be exhau exhausti stive ve but illust illustrat rative ive,, and is not intended to be limited to the kind of mathematical calculations

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to be found found on a balance sheet. The sentence sentence must must be read in its context. The Th e context context occurs immediatel immediately y after after the sentence: " one one man shoul should d not  be allo allowe wed d to sell sell another another man's reputati reputation on for for profit, profit,"" wher wheree the word word " calculation calculation " does not occur. The context context also also includes includes the fina finall sentence: " Exemplary damages can properly be awarded whenever it is necessary to teach a wrongdoer wrongdoer that tha t tort does not pay." pay. " The who whole le passage passage must must be read sensibly as a whole, together with the authorities on which it is based. It is true, of course, as was we well ll pointed pointed out by Widg Widger ery y J. in Manson v.  Associated Newspapers Ltd. [1965] 1 W.L.R. 1038 1038,, 1045 1045,, that the mere fact that a tort, and particularly a libel, is committed in the course of a  busi  busine ness ss carrie carried d on for for prof profit it is not sufficien cientt to bring bring a ca case se wi with thin in the the second second category. category. Nearly all newspapers, newspapers, and most most books, are published published for  prof  profit it.. What What is nece necess ssar ary y in addi additio tion n is (i (i) knowl knowled edge ge that what what is prop propos osed ed to be done is against the law or a reckless disregard whether what is pro pose  posed d to be done done is ille illega gall or lega legal, l, and (ii) (ii) a deci decisi sion on to carry carry on doing doing it  becau  because se the prospec prospects ts of materia materiall advant advantage age outw outwei eigh gh the prospe prospects cts of material loss. It is not necess necessary ary that the defendant defendant calculates that the  plai  plaint ntif iff' f'ss damage damagess if he sues sues to judg judgmen mentt will be smal smalle lerr than than the defe defend nd ant's ant 's profit. profit. This is simpl simply y one one example example of the principle. The defendant defendant may calculate that th at the plai plaint ntif ifff wi will ll not sue at all because he has not the money (I suppose the plaint plaintiff iff in a contested libel action like the present must be prepared nowadays to put at least £30,000 at some risk), or because he may be physic physically ally or otherwise otherwise intimidated. What is necessary necessary is is that the tortious act must be done with guilty knowledge for the motive that the chances of economic advantage outweigh the chances of economic, or  perhaps  perhaps phys physica ical, l, penalty penalty.. At this stage one must examine some of the counter arguments which found found favour favour in the Court of of Appeal. How, it may be asked, about the late Mr. Rachman, who is alleged to have used hired bullies to intimidate statutory tenants by violence or threats of violence into giving vacant  poss  posses essi sion on of of their their resi reside denc nces es and and so plac placin ing g a valuable valuable ass asset et in the the hands hands of of the landlord? land lord? My answer answer must must be that if this is not a cynical cynical calculatio calculation n of profit profit and cold-blooded cold-blooded disregard of a plaintiff's plaintiff's rights, I do not know know what what is. It is also also argue argued d that the secon second d ca cate tego gory ry does not not take take care care of the case of of a man who pursues a potential plai plaint ntif ifff to ruin out of sheer hatred and malice. The answer answer is that tha t it does does not do so because this is already taken care of in the full compensation or solatium for the injuria involved in which the jury can give full rein to their feeling of legitimate indignation without going outside the bounds of compensatory damages in the sense in which which I have explained the th e phrase, phra se, that tha t is, damages of of suffic sufficie ient nt size size to enable the plain plainti tiff ff to point to the size size of the award to indicate indicate the baseless baseless ness of the false charge, and damages for the outrage inflicted in exact  proporti  proportion on as it wa wass unprov unprovoke oked, d, unaton unatoned ed for, for, or malic malicio ious. us. I woul would d have thought the second category was ample to cover any form of injury committed within the scope of those torts for which aggravated and exem  plar  plary y damage damagess may may be aw awar arde ded d wher wheree the moti motive ve was materi material al advant advantage age.. 548 is not really really an authority to the con Mafo v.  Adams [1970] 1 Q.B. 548 trary, although I would have thought that the damages there awarded for inconvenience, breach of covenant, and loss of a regulated tenancy were  perhaps  perhaps at presen present-d t-day ay value valuess too smal smalll for for the wron wrong g commit committed ted.. What What

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was at issue in  Mafo v.  Adams wa wass the award of of exemplary damages in . an action for deceit deceit (see (see Sachs Sachs L.J., at. at . p. 555) 555) and this, in the event, was never decided. What was decided in that case was was that tha t the plainti plaintiff ff had not discharged the onus of proof that the defendant's motives were such such as to bring the case with within in the secon second d category. This is clear from from the th e fact that both Sachs LJ. and Widgery L.J. based their judgments on a  pass  passag agee from rom the decis decisio ion n of the count county y court court judge, judge, where where he said: said: " The defendant's defendant's reasons reasons for for his actions actions are obscure,": see see per  Sachs Sachs L.J., at B  p. 556, and per Widg Widger ery y L.J., at p. p . 559. 559. I am far from saying saying that, in so far far as it could have been shown that the defendant was actuated by hope of gain, and if the action had been one of trespass, exemplary damages could not have been awarded under the second category, and even though in the absence of authority I am of opinion that exemplary damages cannot be awarded in an action for deceit, I cannot claim that that matter has been finally finall y determin determined. ed. ^ The main criticisms of Lord Devlin's speech are thus shown to have  been  been unfo unfoun unde ded. d. That he we went nt beyo beyond nd the existi existing ng law law he had had no doubt, and nor have I. But, as I have have show shown, n, he was was entitled to do so. It may very well be that, in deciding in favour of the two exceptional categories, he was making an unnecessary unnecessary concession concession to tradition. traditi on. But he made the conces concessio sion n after after a careful careful analysis of of the authorities, authorit ies, and, speaking speaking for D myself,  and given the cautious approach indicated in Lord Gardiner L.C.'s  practi  practice ce declar declarati ation on [1966] [1966] 1 W.L.R W.L.R.. 1234 and and by a majo majori rity ty of this Hous Housee in  Reg. v. National Insurance Commissioner, Ex parte Hudson  [1972] A.C. 944,1  944 ,1 do not think think there is any reason reason for for disturbing disturbing them. I regard the Australian cases, and in particular   Uren v. John Fairfax & Sons Pty.  Ltd., 117 C.L.R. C.L.R. 118, 118, as deciding deciding no more than that th at on the particular parti cular facts facts of that case the award of exemplary damages was not acceptable. In so far " • as they claim claim to establish establish that exemplary exemplary damag damages es can be awarded awarded for for any contumelious disregard of the the plaintiff's plaintiff's rights I may not, of of course, course, comment comment so far as regards the law of Australia, but, so far as regards the law of England, I would say that an adequate award of compensatory damages in such a case must of necessity include, and perhaps more than include, any  punit  punitive ive or exem exempl plar ary y elem elemen ent. t. The proposi propositio tion, n, as a proposi propositio tion, n, woul ould p have been perfectly acceptable so long as the looser terminology prevalent  befo  before re  Rookes v.  Barnard wa wass in use. So far as regards the more strict strict terminology now to be employed, the proposition is not to be treated as acceptable acceptable in the English English courts. court s. Before Before turning to the so-called so-called " considerations " I desire to say a word word concerning the decisions in  Williams v.  Settle [1960] 1 W.L.R. 1072 1072 and  Loudon v.  Ryder  [1953] 2 Q.B. 202, upon which Lord Devlin Devlin also com- G mented.  Williams v.  v . Settle was a case under section 17 (3) of the Copyright Act 1956 1956.. I agree with Lord Devlin Devlin that it is is for consideration consideration in the light of subsequent cases whether that section, which does not use the phrase " exemplary damages," does in fact give a right to damages which are exemplary in the narrower sense used since  Rookes v.  Barnard   [1964] A.C.  1129. 1129. If it does, the case should should be regarded as a secon second d category J J case,  since the defendant's motive was profit. If it does not, and if it is to  be regar regarde ded d as still still authorit authoritati ative, ve,  Williams v. Settle can only be regarded as an extreme example of aggravated damages, though the language of the

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county county court judge was was so strong as to lead lead me to think that I would would not myself have been prepared to make so large an award.  Loudon v.  Ryder  [1953] 2 Q.B. 202 202 is the earliest earliest instance which which I have been able to find where a split award was made of exemplary and compensatory damages for the same tort, and the split was made in circum stances which are not altogether plain from the report, after an award of a lump sum sum had been been announced. What woul would d have happened if if Devlin Devlin J. B (as he was) was) had summed summed up to the jury in favou favourr of a generous award of aggravated damages on the lines of his later speech in   Rookes v.  Barnard course,, a question which which no one can possibly possibly answer. answer. The answer answer is, of course migh mightt we well ll have have been, been, substit substitutin uting g " tres tr espa pass ss"" for for " defamation," defamation," what Windeyer J. said in Uren v. John Fairfax & Sons Pty. Ltd., 117 C.L.R. 118, 152: Q " Telling Telling the jury in a defamation defamation action that compensation compensation is to be measured having regard to aggravating circumstances the result of the defendant's conduct might might not result in a verdict verdict differ differen entt from from that which they would return if they were told that because of that conduct they they could give give damages damages by way of of example. exam ple."" What is certain is that the summing-up by Devlin J. in that case could not, Q as Lord Lord Devlin Devlin hims himself elf surmised, now survive the analysis by Lord Devlin in  Rookes v.  Barnard   of the theoretical basis of exemplary damages in the sense in which the term should now be employed. The "  considerations  considerations " I turn now to Lord Devlin's Devlin's three "consid "co nsidera eration tions." s." It is worth worth  point  pointing ing out that neithe neitherr the Court Court of Appeal Appeal nor any any of the coun counse sell who who appeared before us attacked these as such. such. Nor, so far as I am aware, have these been attacked in the cases in which Commonwealth judges have felt constrained to criticise  Rookes v.  Barnard  [1964] A.C. 1129 1129.. This alone would be a good reason against a simple return to the status quo ante proposed by the Court of Appeal, because the first and second " considerations" coupled with the passage from which I have already F quoted on p, p , 1225 1225 are themselves, themselves, and quite independently of of the " categories," an important, and I think original, contribution to the law on exemplary damages. Whilst, as I have indicated, I cannot mysel myselff follow follow what Lord Devlin says on the second category so far as regards the right of appellate courts to interfere interfere with jury awards on principles diff differ erent ent from the traditional nor, I think, with the proposal that   Benham v. Gambling  [1941] A.C. 157 offers a precedent for arbitrary limits imposed " by the judiciary in defamation defamation cases, I regard it as extremel extremely y important that, for the future, judges should make sure in their direction to juries that the jury is full fully y aware of of the danger of of an excess excessive ive award. A judge should first first rule whether evidence exists exists which which entitles a jury to find fin d facts bringing a case within the relevant categories, and, if it does not, the question of exemplary damages should be withdrawn from the jury's  j | consideration. Even ifif it is not withdrawn withdrawn from from the jury, the judge's task is not complete. He should should remind remind the jury: (i) (i) that the burden of of proo prooff rests on the plaint plaintif ifff to establish establish the facts necessary necessary to bring the case within within the categories, (ii) (ii) That Tha t the mere fact fact that t hat the th e case falls falls withi within n the

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categories categories does not of itsel itselff entitle the jury to award damage damagess purely exemplary in in character. They can and should award nothing unless (iii) they are ar e satisfi satisfied ed that the punitive punit ive or exemplary element is not suff suffic icie ient ntly ly met within within the figure fig ure which which they they have arrived at for the plaintiff's plaintiff's solatium solatium in the sense I have explained and (iv) that, in assessing the total sum which the defendant should pay, the total figure awarded should be in substitution for and not in addition to die smaller figure which would have been been treated treated as adequate adequat e solatium, that is to say, shoul should d be a round sum larger than the latter and satisfying the jury's idea of what the defendant defendant ought ought to pay. pay. (v) (v) I would would also also deprecate, as did Lord Atkin in Ley v. Hamilton, 153 L.T. 384 the use of the word " fine " in connection with the punitive or exemplary element in damages, where it is appropriate. Damages remain a civil, not a criminal, remedy, even where an exemplary award is appropriate, and juries should not be encouraged to lose sight of the fact fact that t hat in making making such such an award award they are putting money money into a  plai  plaint ntiff iff's 's pocket pocket,, and and not contri contribut buting ing to the rates, or to the reve revenu nues es of of central government. If this be correct, the agreed list of questions submitted to the jury in the  prese  present nt case is not the ideal procedu procedure re for ensuri ensuring ng that the jury keep their verdict within within bounds. They should should normally be asked to award a single single sum sum whether whether as solati solatium um or as exemplary exemplary damages. If, If, in order to avoi avoid da second trial, they are asked a second question, they should be asked, in the event of their awarding exemplary damages, what smaller sum they would have awarded if they had confined themselves to solatium in the sense explained. It follows from what I have said that I am not prepared to follow the Court of Appeal in its criticisms of   Rookes v.  Barnard,  which I regard as having imposed valuable limits on the doctrine of exemplary damages as they had hitherto been understood in English law and clarified important questions whic which h had had previously been undiscussed undiscussed or left confused. confused. From From one point of view, there is much to be said for the interpretation put upon Lord Devlin's speech by Windeyer J. in  Uren v. John Fairfax & Son Pty.  Ltd., 117 C.L.R. C.L.R. 118,152 immed immediate iately ly before the passage I have just quoted: quot ed:

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" What the House of of Lords has h as now done is, as I read what was was said, F to produce a more distinct terminology terminology.. Limiting the scope of terms that tha t often often were were not distinguished distinguished in application makes possible an apparently firm distinction between aggravated compensatory damages and exemplary or punitive damages." But it is not to be infer inferred red from from this that the ruling ruling in Rookes v.  Barnard is a pure question question of of semantics semantics.. It may we well ll be true that in most most individual individual ^ cases the precise terminology in which the question is asked of the jury may not make make much much diffe differen rence ce to t o the amount of of the award. Both Windeyer J. in the passage just cited and Lord Devlin at p. 1230 were evidently of of this view. But the following following positive advantages can be gained from adhering to the rules he laid down, if properly interpreted: (1) (1) The danger danger of of double counti counting, ng, of adding adding a pure "f " f i n e " to what what has J J already been awarded as solatium without regarding the deterrent or  puni  puniti tive ve effect of the latter, latter, has has been been elim elimina inate ted, d, or at leas leastt redu reduce ced d to a minimum minimum.. (2) (2) In all cases cases wher wheree the categorie categoriess do not apply, the jury

1083 A.C.

Broo Br oome me v. Cassell Cass ell & Co. Co . (H .L .( E. ))

„ Lord Hailsham of St. Marylebone L.C.

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must be told to conf confin inee the punitive punitive or deterrent element element in their thinking within the limits of a fair solatium. solatium. In other words, to borrow the language, though not the sentiments, expressed in Forsdike v.  Stone (1868) L.R. 3 C.P. 607, 611, the jury must be told to consider   only  what the  plai  plaint ntiiff shou should ld recei receive ve afte afterr givi giving ng fu full allo allowa wanc ncee to the need need to re-es re-esta tabli blish sh his reputation and for the outrage inflicted upon him, and  not   what the defendant defendant should should pay independently independently of of this consideration. (3) In cases where the categories do apply, juries can can be give given n directions a little more informative and regulatory than was the case up to and including the new analysis.  Rookes v,  Barnard   has not perhaps proved quite the definitive state ment of of the law whi which ch was was hoped hoped when when it was was decided. This Thi s is ofte often n the case. I remember remember with suitably mixe mixed d feeli feelings ngs of filial fil ial piety and inherited caution that in his judgment in  Robert Addie & Sons (Collieries)  Ltd. v. Dumbreck  [1929]   [1929] A.C. 358 my father believed he was putting a final end to doubts about the limits of occupiers' liability to trespassers, licensees and invitees. But the way way forward forward lie liess through a considered considered precedent and and not backwards from it. I would hope very much that, in the th e light light of observations made on  Rookes v.  Barnard   in this case, Commonwealth courts might see fit to mod modif ify y some of their criticisms criticisms of of it. I do not n ot know how how far it can be of of value in the United United States of America where it seem seemss to me that the decisions decisions of the t he Supreme Supreme Court have hav e been influen influence ced d greatly  by the terms terms of the First Amendm Amendment ent to the Constitu Constitution tion,, and and by the unsatisfactory unsatisfactory rules prevalent in American courts as to the recovery recovery of costs. However However that may be, we cannot depart depar t fro from m  Rookes v.   Barnard here. It was decid decided ed neither per incuriam incuriam nor ultra vires this House; we could only depart from it by tearing up the doctrine of precedent, and this was was not the object object of this House in assum assuming ing the powers powers adopted by  {Judicial Precedent) [1966] 1 W.L.R. 1234 the Practice  Statement  {Judicial 1234.. Lest I should have been thought to have forgott forgotten en it, I would would observe that the Court of Appeal overruled the decision of Lawton J. that a claim for exemplary exemplary damages damages shoul should d be pleaded. I am content to accept accept their view view on the basis of the the present practice. But in the light light of of the t he decision decision of this House House in the instant instant ca case se I propos proposee to refe referr to the Rule Commi Committe tteee the question whether in the light of   Rookes v.  Barnard   and the present decision decision the present practice should should not be altered. There is much much to be said said for the view view that tha t a defendant defendant against whom whom a claim of of this kind is made ought not to be taken by surprise. My Lords, it follows from what I have said in my opinion this appeal should be dismissed and that costs should follow the event.

G My Lords, the appellants published published a book, " The Destruction of Convoy PQ17" which according to their advertisement on the dust jacket was the result of five intensive years of meticulous research by the author. author . It contained many many statements about the conduct of the respondent respondent who was was the naval offi office cerr in command of the th e convoy. J J He sued sued the appellants and the author autho r for damages damages for libel. After a trial which lasted for some 17 days a number of questions were left to the jury. They found found that tha t the words complained complained of were were defamat defamatory ory of the respondent and were not true in substance substance and and in fact. They were LORD  REID.

1084 Lord Reid

Broome v. Cassell & Co. (H.L.( (H. L.(E.) E.)))

[197 [1972J 2J

asked what compensatory damages they awarded, and they awarded £15,000. £15,000. Then they were asked " Ha Hass the plaint plaintiff iff proved that th at he is entitled  to exemplary damages? " Their answer answer was was yes against both defendants. defend ants.  Next  Next they they we were re aske asked d " What What additio additional nal sum shou should ld be aw award arded ed him him by way wa y of exemplary exemplary damages? " Their answer was was £25,000. £25,000. So judgment was entered against both defendants for £40,000. Others of your Lordships have dealt in detail with these statements and I do not think think it neces necessa sary ry to say say more than that t hat in my my opinion opinion the jury were well entitled to find that they conveyed imputations of the utmost gravity against the character and conduct of the respondent as a naval offi office cer. r. Indeed the appellants appellants do not now seek to disturb disturb the award of £15, £15,00 000 0 as as " compensato compensatory ry damages." Their contention before before your Lord ships is twofold: first, that the jury were not entitled to award any exemplary damages and, secondly, that the amount awarded under this head was much too great. As no objection objection was was taken at the time to the form form of of the question there cannot now be any objection to the jury having been asked in this case to consider separately compensatory and exemplary damages. The whole matter of exemplary damages was dealt with in this House in  Rookes V. Barnard  [1964] [1964] A.C. 1129 1129 in a speech speech by Lord Devlin with with which all who sat with him, including  myself, concurred. concurred. The Court of Appeal dealing with with the present case held that if they applied applied the law as laid down in  Rookes v.  Barnard   the appellants' appeal must fail and the  jury's verdic verdictt must must stand. stand. They They coul could d have have stopp stopped ed there, there, but they they chose chose to go go on and attack the th e decis decision ion of this House as bad law. They were were quite entitled to state their views and reasons for reaching that conclusion  but very very unfor unfortun tunat ately ely Lord Denn Dennin ing g M.R., M.R., apparen apparently tly with with the the concurr concurrenc encee of his two colle colleague agues, s, went went on to say [1971] 2 Q.B. 354, 354, 384: " This This case may, or may not, go on appeal to the House of of Lords. Lord s. I must say a word, however, for the guidance of judges who will be trying cases in the meantime. I think the diffi difficul cultie tiess presented by  are so great that the judges should direct the juries  Rookes v. Barnard  are in accordance with the law as it was understood before  Rookes V. follow ow  Rookes v. Barnard  is   is bound to lead  Barnard. Any attempt to foll to confusion."

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It seems to me obvious that the Court of Appeal failed to understand Lord Devlin's speech, but, whether they did or not, I would have expected them to know that they had no power to give any such direction and to realise the impossible position in which they were seeking to put those  judges  judges in advi advisi sing ng or direc directin ting g them them to disreg disregard ard a deci decisi sion on of this this House. That aberration ab erration of the Court of Appeal has made it necessa necessary ry to re- G examine the whole subject and incidentally has greatly increased the expense to which the parties to this case have been put. The very full argument which which we have had in this this case has not caused me to change the views which I held when Rookes v. Barnard  was   was decided or to disagree disagree with with any of of Lord Devlin's main main conclusions. conclusions. But it has convince convinced d me that that I and my colleagues colleagues made a mistake in simply simply concon- J J curring with with Lord Devlin's speech. speech. With the passage passage of time time I have come come more and more firmly to the conclusion that it is never wise to have only one speech in this House dealing with an important question of law.

1085 A.C.

Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

Lord Lord Reid

My main reason is that experience has shown that those who have to apply the decisio decision n to other cases and still more those who who wish wish to criticise it seem seem to find fin d it diffi difficu cult lt to avoid treating treating sentences and phrases phrase s in a single speech speech as if if they were were provision provisionss in an Act of of Parliament. P arliament. They do not seem seem to realise that it is not the t he funct function ion of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast function ion to enunciate principles principles and much much that they say is rules. It is their funct B intended intended to be be illustrative illustrative or explanatory explanatory and not to be definit definitive. ive. When When there are two or more speeches they must be read together and then it is generally much easier to see what are the principles involved and what are merely illustrations of it. I am bound to say that, in reading the various criticisms of Lord Devlin's speech to which we have been referred, I have been very surprised at the failure of its critics to realise that it was intended to state principles ^ and not to lay lay dow down n rules. But I suppose that those of of us who merely merely concurred with him ought to have foreseen that this might happen and to have taken steps steps to prevent it. So I shall try to repair my omis omissio sion n by stating now in a differ different ent way the principles principles which I, and a nd I believe also Lord Devlin, Devlin, had in mind. mind. I do not think that he would would have disagree disagreed d with any important part of what I am now about to say. D Damages Damages for any tort are or ought to be fixed fixe d at a sum sum whic which h wi will ll compensate the plaintiff, so far as money can do it, for all the injury which he has suff suffer ered ed.. Where the injur injury y is material and has been ascertained ascertained it is generally generally possible possible to assess damages with some some precision. But that is not so where he has been caused mental distress or when his reputation has  been  been attack attacked— ed—whe where, re, to use use the traditio traditional nal phrase phrase,, he has been been held held up to hatred, ridicule ridicule or contempt. Not only only is it impossi impossible ble to ascertain how how far " other people's minds have been affe affect cted ed,, it is almost impossibl impossiblee to equate the damage to a sum of of money. Any one person trying to fix a sum sum as compensation will probably find in his mind a wide bracket within which any sum could be regarded by him as not unreasonable—and differ different ent people will will come come to diffe differen rentt conclusions. So in the end there wil willl probably be a wide gap between the sum which on an objective view could be regarded F as the least and the sum which which could could be regarded regarded as the most most to which which the  pl  plain aintiff is entit entitle led d as compe compensa nsati tion on.. It has long been recognised that in determining what sum within that  bracket  bracket shou should ld be awarded, awarded, a jury, or other other tribunal, tribunal, is entitl entitled ed to have have re gard to the conduct of of the defendant. defendant. He may have behaved behaved in a high high handed, malicious, insulting or oppressive manner in committing the tort or G he or his counsel counsel may may at the trial have aggravated aggravated the injury injury by what what they there said. That Th at would would justi justify fy going going to the top of of the bracket and awarding awarding as damages the largest sum that could fairly be regarded as compensation. Frequently in cases before  Rookes v,  Barnard,  when damages were increased in that way but were still within the limit of what could properly  be regard regarded ed as compe compens nsati ation on to the  plaintiff,  it was said that punitive, T, vindicti vindictive ve or exemplary exemplary damage damagess were were being being awarded. awarded. As a mere matter of of language language that was true enough. The defendant defendant was being being punished punished or an example was being made of him by making him pay more than he would would have had to pay if if his conduct had not been outrageous. outrageous. But the A

1086 Lord Lord Reid

Broome Broome v. Casscll Casscll & Co. (H.L.(E.)) (H.L.(E .))

[1972]

damages though called punitive were were still still truly compensatory: compensator y: the plaint plaintiff iff was not being given more than his due. On the other hand when we came to examine the old cases we found a number whic which h could could not be be explain explained ed in that way. The sums awarded as damages were more—sometimes much more—than could on any view  be just justif ifie ied d as comp compen ensa sato tory ry,, and and courts, courts, perhaps perhaps wi with thout out fully real realis isin ing g what they were doing, appeared to have permitted damages to be measured not by what the plai plainti ntiff ff was fairly entitled to to receive but by what the defendant ought to be made to pay as punishment for his outrageous conduct. That meant that the   plaintiff,  by being given more than on any view could be justified as compensation, was being given a pure and undeserved windfall at the expense of the defendant, and that in so far as the defend ant was being required to pay more than could possibly be regarded as compensation he was being subjected subjected to pure pur e punishment. I thought and still still think that that is highly highly anomalous. anomalous. It is confu confusi sing ng the function of the civil law law which which is is to compensate with the functi function on of the the criminal law law which which is to infli inflict ct deterre deterrent nt and punitive penalties. penalties . Some ob  ject  jectio ion n has been been take taken n to the use of of the word word " fin fine " to denote denote the amount amount  by whic which h punit punitive ive or exem exempl plar ary y dama damage gess exce exceed ed anyt anythin hing g just justly ly due to the  pl  plaintiff. In my view view the word word " fine fine " is an entirely entirely accurate description description of that part of any award which goes beyond anything justly due to the  pl  plaintif tiff and is pure purely ly puniti punitive. ve. Those of us who sat in   Rookes v.  Barnard  thought   thought that the loose and confus confused ed use of words like punitive and exemplary and the failure to recogni recognise se the the diff differe erence nce between between damages which are compensatory and damages which go beyond that and are purely punitive had led to serious abuses, abuses, so we took what we we thought thought was was the best best course open to us to limit limit those abuses. Theoretically we might have held that as purely punitive damages had never been sanctioned by any decision of this House (as to which I shall say more later) there was was no right under under English English law law to award award them. But that would would have been going going beyond beyond the proper function function of this House. There are many well-establ well-established ished doctrines of of the law law which have not been the subject subject of any decision decision by by this House. House . We thought we had to to recognise recognise that it had become an established custom in certain classes of case to  permit  permit aw award ardss of dama damage gess whic which h coul could d not be just justif ifie ied d as compen compensa sator tory, y, and that tha t that must remain remain the law. But we thought and I still think it well within the province of this House to say that that undesirable anomaly should not be permitted in any class of case where its use was not covere covered d by authority. In order to determine the classes of case in which this anomaly had  beco  become me esta establ blis ishe hed d it wa wass of littl littlee use to look look mere merely ly at the word wordss whic which h had been used by judges because, as I have said, words like punitive and exemplary were often used with regard to damages which were truly com  pensa  pensator tory. y. We had to take a broad broad vie view of the whol wholee circ circum umst stan ance ces. s. I must now deal with with those parts parts of of Lord Devlin's Devlin 's speech speech which which have given given rise to diffi difficul cultie ties. s. He set out two two categories of of cases which which in our opinion comprised all or virtually all the reported cases in which it was clear that the court had approved of an award of a larger sum of damages

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1087 A.C. A

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Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

Lord Reid

than could be justif justified ied as a s compensatory. compensatory. Critics Critics appear appear to have thought that he was was inventin inventing g somethi something ng new. new. That Tha t was not my understanding. We were were confr confront onted ed with with an undesirable anomaly. anomaly. We could not abolish it. We had to choose between between confini confining ng it strictly to classes of of cases where it was firmly established, although that produced an illogical result, or permitting it to be extended extended so as to produce a logical logical result. In my view it is better in such cases to be content with an illogical result than to all allow ow any extension. It will be seen that I do not agree with Lord Devlin's view that in certain classes of case exemplary damages serve a useful purpose in vindicating vindicating the strength strength of of the law. law. That Tha t view view did not form form an essential essential step in in his argument. Concurrence with with the speech speech of of a colleague colleague does not mean acceptance of every every word word whic which h he has said. If it did there t here woul would d  be far far few ewer er concur concurre rence ncess than than there there are. So I did did not regard regard disa disagr gree ee-ment on this side side issue as preventing preventing me from from givi giving ng my concurrence. concurrence. I think that the objections to allowing juries to go beyond compensatory damages are overwhe overwhelmi lming. ng. To allow pure punishment in this wa way y contra venes almost every principle which has been evolved for the protection of offenders. offenders. There There is no defini definition tion of of the offe offenc ncee except that that the conduct  puni  punish shed ed must must be oppre oppressi ssive, ve, high high-h -hand anded ed,, malic malicio ious, us, wa want nton on or its like— like— terms far too t oo vague to be admitted to any any criminal code worth worthy y of the name. There is no limit limit to the punishment except that it must not be unreasonable. The punishment is is not infl inflic icte ted d by a judge judge who who has ex  perien  perience ce and at lea least st tries tries not to be infl influe uenc nced ed by emotion: emotion: it is infl inflic icte ted d  by a jury witho without ut exper experie ienc ncee of law law or puni punish shmen mentt and ofte often n sway swayed ed by considerations whic which h every every judge woul would d put out of of his mind. And there is no eff effec ecti tive ve appeal appeal against sentence. All that tha t a reviewing reviewing court cour t can do is to quash the jury's jury' s decisi decision on if if it thinks the punishment punishment awarded is more than any twel twelve ve reasonable men could could award. The court cannot substitute its own own award. award. The punishment punishment must then then be decide decided d by another jury and if they too award heavy punishment the court is virtually powerless. It is no excuse to say that we need not waste sympathy on people who  behave  behave outrag outrageou eousl sly. y. Are we wasti wasting ng sympat sympathy hy on vicio vicious us crimi criminal nalss when when we insi insist st on proper proper lega legall safe safegu guar ards ds for for them? The right right to give give puniti punitive ve damages in certain cases is so firmly embedded in our law that only Parliament can remove remove it. But I must say that I am surpris surprised ed by the enthusiasm of Lord Devlin's critics in supporting this form of palm tree  justice  justice.. Lord Devlin's D evlin's firs firstt category category is set set out on p. 1226 1226.. He said: " The first firs t category category is oppressive, oppressive, arbitrary arbitra ry or unconstitutional action  by the serv servan ants ts of the gover governm nmen ent. t. I shou should ld not exte extend nd this this ca cate tego gory ry  —I say this this wi with th particular particular refe refere renc ncee to the fact factss of this ca case se—t —to o oppressive action by private corporations or individuals."

This distinction distinction has been attacked on two grounds: grounds : first first,, that tha t it only only includes Crown servants and excludes others like the police who exercise governmental functi functions ons but but are not Crown Crown servants and, secondl secondly, y, that it IT governmental is illogica illogicall since both the the harm to the plaint plaintiff iff and the blameworthiness of the defendant defendant may be at a t least equally equally great where the off offen ende derr is a  powe  powerf rful ul privat privatee indivi individua dual. l. With With regar regard d to the first I think think that the

1088 Lord Lord Reid

Broome v. Casscll Casscll & Co. (H.L.(E. (H.L .(E.)) ))

[1972]

context shows that the category was never intended to be limited to Crown servants. servants. The contrast contrast is betwe between en " the governm gove rnment" ent" and private individual individuals. s. Local government is as much government as national government, and the police and many other persons are exercising governmental functions. It was unnecessary in  Rookes V. Barnard   to define the exact limits of the category. category. I should should certainly certainly read it as extending extending to all those who who by common law law or statute statute are exercising functions of a governmental character. B The second second criticism criticism is I think misconc misconceive eived. d. I freely freely admit that the distinction distinction is illogic illogical. al. The real reason for the distinction was, in in my view view,, that the cases showed that it was firmly established with regard to servants of " the government" that damages could be awarded against them beyond any sum sum justi justifie fied d as compensation, compensation, whereas there was no case except one that was overruled where damages had been awarded against a private  bull  bully y or oppres oppressor sor to an amount amount that coul could d not fair fairly ly be regard regarded ed as compensatory, giving to that word the meaning which I have already discussed discussed.. I thought that this House was was therefore free free to say that no more than that was to be awarded in future. We are particularly concerned in the present case with the second category. With the benefit benefit of hindsight hindsight I think I can say say without disrespect to Lord Devlin Devlin that it is not happily happily phrased. phrased . But I think the meanin meaning g is D clear enough. An ill disposed person could could not infrequently deliberately deliber ately commit a tort in contumelious disregard of another's rights in order to obtain an advantage which would outweigh any compensatory damages likely likely to be obtained obtained by his victim. victim. Such a case is within within this category. But then it is said, suppose he commits the tort not for gain but simply out of malice, why why should should he not also be punished? Again I fre freel ely y admit there is no logical logical reason. The reason reason for excluding excluding suc such h a case from from the category is simply that firmly established authority required us to accept this category however little we might like it, but did not require us to go farther. If logic logic is to be preferred preferred to the desirabil desirability ity of of cutting cutting down down the scope for punitive damages to the greatest extent that will not conflict with with establis established hed authority then this category must be widen widened. ed. But as I have already said said I would, would, logic logic or no logic, logic, refus refusee to extend extend the right rig ht p to inflict exemplary damages to any class of case which is not already clearly clearly covere covered d by authority. On that basis basis I support this category. In my opinion, the conduct of both defendants in this case was such that the jury were clearly entitled, if properly directed, to hold that it  brough  broughtt them them wi with thin in the seco second nd cat catego egory. ry. Again, Again, I do not inte intend nd to cove coverr ground already covered by my noble and learned friends, So I say no more than that the jury were were ful fully ly entitled to hold hold that the appellants G knew when they committed this tort mat passages in this book were highly defamatory defamatory of the respondent respondent and could not be jus justi tifi fied ed as true and that it could properly be inferred that they thought that it would pay them to  publ  publis ish h the book book and and risk risk the cons conseq eque uenc nces es of any any act actio ion n the respon responden dentt might might take. It matters not whether whether they thought that they could escape escape with with moderate moderate damages or that that the enormous expense involve involved d in fighti fighting ng J J an action of this kind would prevent the respondent from pressing his claim. It was argued that to allow punitive damages in this case would hamper

1089 A.C. A

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Broome v. Cassell Cassell & Co. (H.L.(E.) )

Lord Reid

other publishers or limit their freedom freedom to conduct conduct their thei r business business because because it can always be inferred inferred that publishers publish any book because they expect to profit profit from from it. it . But punitive damages could not be given given unless unless it was proved that they knew that passages in the book were libellous and could not be justifi justified ed or o r at least deliberately deliberately shut their eyes to the truth. tru th. I would would hope that no publisher would would publish publish in such such circumstances. circumstances. There is no question of curtailing the freedom of a reputable publisher. The next passag passagee in Lord Devlin's speech speech whic which h has caused caused some some diffic difficult ulty y is what has been called called the "if, but only if," if," paragra paragraph ph on  p.  1228. 1228. I see see no diff diffic icul ulty ty in it but again I shall set set out the substance of of it in my my own own words. words. The differe difference nce between compensatory and an d punitive punitiv e damages is that in assessing the former the jury or other tribunal must consider how much the the plaint plaintiff iff ought to to receive, whereas whereas in assessing assessing the latter they they must consider consider how how much much the defendant defendant ought to pay. It can only cause confusi confusion on if they consider both questions questions at the same same time. The only only practical practica l way way to t o proceed proceed is first first to look at the case case from from the point of of view of compensating the  plaintiff. He must not only only be compensated compensated for proved actual loss but also for any injury to his feelings and for having had to suf suffe ferr insults, indignities indignities and and the like. And where the defendant defendant has behaved outrageously very full compensation may be proper for that. So the tribunal will fix in their minds what what sum woul would d be proper as com  pensat  pensatory ory damage damages. s. Then Then if it has been been deter determi mine ned d that the ca case se is a  proper one for punitiv punitivee damag damages es the tribunal tribunal must must turn its attention attention to the defendant and ask itself whether the sum which it has already fixed as compensatory damages is or is not adequate to serve the second purpose of punishment punishment or deterrence. If they think that that sum sum is adequate for the second purpose as well as for the first they must not add anything to it. It is suff suffic icie ient nt both as compensatory compensatory and and as punitive damages. But if they think think that that sum is insuf insuffic ficien ientt as a punishment then they must add to it enough enough to bring it up to a sum sum suff suffic icie ient nt as punishment. The one thing which they must not do is to fix sums as compensatory and as punitive damages damages and add them them together. together. They must must realise realise that the compensatory compensatory damages are always part of the total punishment. It was argued that the jury were were not properly directed directed by the trial  judge  judge on this matter. I agree agree with with your Lordships Lordships that that argume argument nt must must fail. fail. A judge's direction to a jury is is not to be considere considered d in vacuo. It must be read in light of all the circumstances as they then existed and I cannot believe that the jury were left in any doubt as to how they must deal with this matter. Next there are questions questions arising arising from from the fact fact that there were were two defendants. When When dealing with compensatory compensatory damages damages the law law is is quite clear. There was one tort of whic which h both defendants defendants were were guilty. So one sum is fixed as compensation, and judgment is given for that sum against  both defend defendant ants, s, leav leavin ing g it to the plai plain ntiff tiff to sue sue which whichev ever er he choos chooses es and and then leaving leaving it to t o the defendant who has paid to recover a contribution if be can from from the other. But when when we come to punitive damages the position is differe different. nt. Although the tort was committed by both, only one may have been guilty of the outrageous conduct or, if two or more are so guilty they may be

1090 Lord Lord Reid

Broome Broome v. Casscll & Co. (H.L.(E. (H.L .(E.)) ))

[1972]

guilty in differ different ent degrees or, owing owing to one being being rich and anothe an otherr poor, poor,  puni  punish shmen mentt proper proper for for the form former er may may be too heav heavy y for for the latter. latter. Unless we are to abandon all pretence of justice, means must be found to prevent more being recovered by way of of punitive damages from from the least guilty guilty than he ought ought to to pay. We cannot rely on his being being able to recover recover some some contribution fro from m the other. Suppose Suppose printer, author and  publi  publishe sherr of a libe libell are all sued. sued. The printer printer wi will ll probabl probably y be guil guiltl tles esss of of any outrageous conduct but the others may may deserve punishment punishment beyond beyond compensatory compensatory damages. If there has to be one judgment against all three, then it would be very wrong to allow any element of punitive damages at all to be included because very likely the printer would have to pay the whole and the others might not be worth suing for a contribution. The only logical way to deal with the matter would be first to have a  judg  judgmen mentt agai agains nstt all all the defend defendant antss for for the compen compensat sator ory y damage damagess and then to have a separate judgment against each of the defendants for such additional sum as he should should pay as punitive damages. damages. I woul would d agree that that is impracticable. The fact fact that it is impracticable to do do full full justice appears appears to me to affo afford rd another illustration of how anomalous and indefen indefen sible sible is the whole whole doctrine of of punitive damages. But, as I have said said before, we must accept it and make the best we can of it. So, So, in my opinion, the jury should be directed that, when they come to consider what if any addition is to be made to the compensatory damages  by  by way of of puniti punitive ve damages, damages, they they must must consi conside derr ea each ch defend defendant ant separa separatel tely. y. If any one of the defendants does not deserve punishment or if the com  pensat  pensator ory y dama damage gess are in them themse selv lves es sufficient puni punishm shment ent for for any any one of the defendants, then they must not make any addition to the compensatory damages. If each of of the defendants defendants deserves more more punishment punishment than is involved involved in payment of the compensatory damages then they must determine which deserves the least punishment and only add to the compensa tory damages such additional sum as that defendant ought to pay by way of punishment. I do not pretend that that achieves full justice but it is the best we can do without separate awards against each defendant. It was argued argued that here again again there was misdirection misdirection of of the jury because all that was was not made plain to them. But again again I agree with with your Lord ships that in the whole circumstances we ought not to hold the direction of the learned learned trial judge to be inadequate. Again the jury can have been been in no doubt as to what was required of them. There There remains remains what is perhaps perhaps the most diff diffic icul ultt question in this case— case— whether the additional award of £25,000 as punitive damages is so excessive that we we can interfere. I think it was much much too large, but that is not the the test. I would would like like to be able to hold hold that the court has more control over over an award of punitive damages than it has over an award of compensatory damages. As regards regards the latter it is is quite clear clear that a court can only interfere if satisfied that no twelve reasonable men could have awarded so large a sum sum and the reason reason for for that tha t is is plain. The court has ha s no power power to substitute its own own asses assessmen smentt for the verdict verdict of a jury. If it interfer interferes es it can only only send send the matter back to another jury. So before before it can interfere interfere it must be well satisf satisfied ied that that no other jury would award so large a sum. sum. I do not see how this House could arrogate to itself any wider power with

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1091 A.C.

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Broome v. Cassel Casselll & Co. (H.L.(E.)) (H.L.(E .))

Lord Lord Reid

regard to punitive damages. We could not deprive the plain plainti tiff ff of his right to a new new trial so we we must must adhere to the establis established hed test. Any diminu diminu tion or abolition of the functions of a jury in libel cases can only come from from Parliament. Par liament. If this case brings nearer the day whe when n Parliament Parliam ent does take action I for one shall not be sorry. Whether or not we can interfere with this award is a matter which is not capable of much much elaboration. In considering considering how how far twelve twelve reasonable men men might might go, acting acting as jurors juro rs commonly commonly do act, one has to bear in mind how how little guidance guidance the court is entitled entitled to give give them. them. All they they can be told told is that they must not award award a sum which which is is unreasonable. In answer answer to questions whether anything more definite could properly be said neither counsel in this case was able to make any suggestion and I have none to offe offer. r. The evidence evidence in this case is such such that the jury could could take an extremely extremely unfavourable unfavourable view view of the conduct of both defendants. I do not say that they ought to have done so, but they were entitled entitled to do so. And they must have done so. I find find it impossible impossible to say say that no jury of reasonable men, inexperienced but doing their best with virtually no guidance, could could reach the sum of £25,00 £25,000. 0. Or, to put it in another way, way, I would feel no confidence that if the matter were submitted to another  jury  jury they they must must reach reach a subst substant antial ially ly dif differe feren nt result. result. So wi with th consid considera erable ble regret regret I must must hold hold that it woul would d be contrary contrary to our exis existi ting ng law law and  practice  practice if if this this House House refu refuse sed d to upho uphold ld this this verdic verdict. t. It is true that in this case the parties agreed that if the verdict for £25,000 were quashed they would leave it to this House to substitute another figure. But that agreement cannot justify us in doing otherwise than we would have done if the parties had stood on their legal rights. The obvious reason for that agreement was a common desire to avoid the enormous expense expense of a new new trial. tri al. This is not the first firs t occasion occasion on on whic which h I have felt bound to express my concern about the undue prolixity and expense of libel actions. I woul would d not blame any individuals. It may arise from the conduct of a trial before a jury being more expensive than a trial before before a judge. If so that is an additional argument for taking taking these these cases away away from from juries. juri es. Or it may be that it i t suits wealt wealthy hy publishers publishers of of newspa newspaper pers, s, books books and perio periodic dical alss that the cost cost of fighting a libe libell ac acti tion on is so great that none but a person with large financial backing can sue them effect effectiv ively ely.. Whatever be the reason the costs of of this this case have already reached reached a figure figu re which which many many laymen laymen wou would ld call scandalous. I think that those in a position to take effective action might take note. Finally, I must say something about a strange misconception which appears appear s in the judgments of the th e Court of of Appeal in this case. Someho Somehow w they reached reached the conclusio conclusion n that tha t the decisi decision on of of this House in  Rookes v.  Barnard   was made per incuriam was ultra vires, and had produced an unworkable unworkable position. It must be noted noted that tha t in at least three earlier cases cases the Court Co urt of Appeal were were able without dif diffi ficu cult lty y or question to t o apply that tha t decision:  McCarey v.  Associated  Newspapers,  Newspapers,  Ltd. (No. 2) [1965] 2 Q.B. 86; 86;  Broadway Approvals Ltd. v.  Odhams Press Ltd. (No.  2) [1965] 1 W.L.R. 805 805 and  Fielding 2 Q.B. 841. What   Fielding v. Variety Incorporated   [1967] 2 Q.B. has caused their change of mind does not appear but I must deal with their new new view. As regards the present position position being being unworkable, of of course many many diffic difficult ulties ies remain in this branch of the law, but these diffic difficult ulties ies are an

1092 Lord Lord Reid

Broome Broome v. Cassel Casselll & Co. (H.L.(E.)) (H.L.(E. ))

[1972] [19 72]

inheritance fro from m the confus confusion ion of the past. I have dealt fairly fairly fully fully with the  Rookes v. Barnard  [1964] A.C, 112  proper  proper interpre interpretat tation ion of  of  Rookes 1129 and it appears to me that that decision removes many old difficulties and creates few if any new ones. I need not deal separately with the novel idea that a decision of this House can be ultra vires because that charge appears to be consequential on the charge that this House acted per incuriam in reaching its decision. It is perfec perfectly tly legitimate legitimate to think and say that we were were wrong wrong but how anyone could say we acted per incuriam in face of the passage on page 1230 I fail to understand. This charge is really based on what appears to me to be a misreading  by  by the Court Court of Appeal Appeal of tw two o deci decisi sion onss of this this House, House, E. Hulton & Co.  Ley v, Hamilton, 153 v. Jones [1910] A.C. 20 and  Ley  153 L.T. 384.  Hulton's case has always been regarded as the leading authority for the proposition that a defamatory description intended to apply to a fictional fictional person may in fact  be a libe libell on a real real pers person on and and theref therefore ore a subj subjec ectt for for damage damages. s. I see see nothing in the speeches in this House to indicate that punitive damages in the modern sense sense were being considered. It was said that there th ere was an element of recklessness in the failure of the defendants to realise that there wass a real Artemus Jones and that this justi wa justifie fied d a rather high high sum sum of of damages but I see nothing to indicate any vie view w that the damages damages we went nt  beyo  beyond nd anyt anythi hing ng that coul could d be just justif ifie ied d as compe compens nsat atio ion n and and coul could d only only be  just  justif ifie ied d as being being puniti punitive ve in the mod moder ern n sens sense. e. fuller er consideration. consideration. But again again I see  Ley v.  Hamilton requires rather full nothing to indicate that this House held that the damages went beyond compensation or that there had been outrageous conduct justifying a  punit  punitiv ivee aw awar ard d which hich we went nt beyo beyond nd compe compens nsat atio ion. n. The majo majori rity ty in the Court of Appeal certainly held held that the £5,0 £5,000 00 damages damages award was punitive in the modern sense. sense. They held that that the real damage was trifling trifling and the rest punishment. punishment . Greer L.J. said said (1934) (1934) 151 151 L.T. L.T. 360, 369 369 that if if Hamilton had been prosecuted for criminal libel it was inconceivable that he would would have been been fined fin ed £5,000. £5,000. Maugham Maugham L.J. said, at p. p . 374, 374, that the damages could not be described as a fair and reasonable compensation but were were in the nature of a fine. fin e. In this House only only Lord Atkin delivered delivered a speec speech. h. I read it as intended intended to show that elements properly included in compensatory damages were far wider than the majority in the Court of Appeal had thought and that the whole of this this £5,000 £5,000 was in fact justifie justified d as being being compensatory. He said, 153 L.T. 384,386: " The fact is that the criticism with great respect seems based upon an incorrect view view of the assessment assessment of damages for defamation. They are not arrived at as the Lord Justice seems to assume by determining the ' real' damage and adding to that a sum by way of vindictive or  puni  puniti tive ve dama damage ges. s. It is prec precis isel ely y becaus becausee the ' real re al'' damag damagee cannot cannot be ascertained and established established that the damages damages are at large. It is im  poss  possib ible le to track track the scanda scandal, l, to know know what what quarters the pois poison on may may reach: reach: it is impossible impossible to we weigh igh at all clos closely ely the compensation which which will wi ll recompense recompense a man or a woman woman for the insult offe offere red d or the pain of a false false accusation. accusation. No doubt in newspaper newspaper libels libels juries take into account the vast circulations which are justly claimed in present

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1093 A.C. A

Broome Broome v. Cassell Cassell & Co. (H.L.(E.))

Lord Lord Reid

times. The ' puni pu niti tive ve'' element is not somethin something g whi which ch is is or can be added to some some known known factor whic which h is non-punitive. non-punitive. In particular it appears to present no analogy to punishment by fine for the criminal offence of publishing a defamatory libel."

By saying that compensation for insult or the pain of a false accusation cannot be weighed at all closely and that there was nothing here analogous to punishment by fine, he was to my mind making it as clear as words can " make it that the whole whole of this £5,0 £5,000 00 wa wass truly compensato compensatory ry in character. So I think that Lord Devlin was perfectly right in saying that there is no decision of this House which recognises punitive damages in the modern sense of something which which goes goes beyond beyond compensation. compensation . Where the the Court of of Appeal went wrong was in failing to realise that in the older cases damages were frequently referred to as exemplary or punitive although were re in reality compensatory. Q they we On the whole matter I would dismiss this appeal. My Lords, Lords , at the trial of of this action questions arose arose as to whether whether if the plaint plaintiff iff succeeded, he was was entitled to recover recover exemplary exemplary damages damages in addition addition to compensatory compensatory damages. damages. The law relating to exemplary damages was considered in your Lordships' House in 1964 1964 and was laid down in the decision in  Rookes v. Barnard [196 [1964] 4] A.C. 1129. 1129. That Tha t decisio decision n bound bound the learned learned judge. It bound the Court of Appeal. It continues to be binding authority in all all courts unless unless and until it appears to your Lordships to be right to depart from it. In presiding at the trial the learned judge set himself loyally and faith full fully y to foll follow ow the binding authority authority of of the decision. His directions to the jury foll followe owed d the approach approach laid down in the decision though it is con tended that in regard to one or two matters there was faulty exposition which which was suff suffic icie ient ntly ly serious to vitiate vitiat e the award made by the jury of of exemplary exemplary damages. These matters call for for separate consideration. consideration. If the contentions concerning them do not succeed there remains an issue as to whether whether the award of of the jury was exce excessi ssive ve and should should be set aside. If it is held that there was nothing amiss at the trial and that the law as laid down in your your Lordships' Lords hips' House was properly applied applied by the learned learned judge judge it would be an unhappy conclusion if it were now held that the trial had in fact been conducted on wrong or at least on unnecessary lines but that this had only been so because the law law which had to be foll followe owed d had been wrongl wrongly y laid down. If that tha t were the conclusion it is by no means certain that it would be possible to avoid ordering a new trial which would then be conducted on the basis of the law law as newly newly laid laid down. But a result so lamentable (and for the parties so calamitous) must be contemplated as at least a possibility if it is decided that the law was wrongly declared in 1964 and must now be changed or changed back again. Before considering this aspect of the matter further I must express my view in regard to the main contentions which are raised by the appellants. They They for for their their part do not in any any way ques questi tion on the vali validi dity ty of   Rookes v.  Barnard. Their appeal relates only only to the award of of exemplary exemplary damages. The jury found that the words complained of in the hard back edition were defamatory of the plainti plaintiff ff and that the words were not true in substance LORD MORRIS OF BORTH-Y-GEST.

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1094 {ford^ Morris ol

Broome Broome v. Cassel Casselll & Co. (H.L.(E.)) (H.L.(E.) )

[1972]

or in fact. They found similarl similarly y in regard to the proof copies. They awarded compensatory sums respective respectively ly of £14,0 £14,000 00 and £1,000. £1,000. No chal lenge as to such results is made. No criticism criticism is advanced in regard to the very careful summing-up of the learned judge dealing with the facts and with the issue issuess as to liability. No suggest suggestion ion is made that that the awards of compensation can be attacked as being excessive or unreasonable. The learned judge left three questions to the jury on the issue of exem  plary  plary dama damage ges. s. First First they they we were re aske asked d whet whethe herr the plai plaint ntiiff had had prove proved d that he wa wass entitled entitled to exemplary exemplary damages. damages. Here the learned judge was was carefully following  Rookes v.  Barnard.  There may be exemplary damages if a defendant has formed formed and been guided by the vie view w that, though he may have to pay some damages or compensation because of what he intends to do, yet he will in some way gain (for the category is not confined to moneymaking in the strict sense) or may make money out of it, to an extent whic which h he hopes and expects will will be worth his while. I do not not think think that the word " calculated " was used to denote some precise balancing  proces  process. s. The situa situati tion on cont contem empl plat ated ed is wher wheree some someon onee face facess up to the  poss  possib ibil ilit ity y of havi having ng to pay dama damage gess for for doin doing g some someth thin ing g whic which h may may be held to have been wrong but where nevertheless he deliberately carries out his plan because he thinks that it will will work out satisfactorily satisfactorily for him. He is prepared to hurt somebo somebody dy because he thinks that he may may wel welll gain by by so doing even allowing for the risk that he may be made to pay damages. As the learned learned judge put it in referenc referencee to defamati defamation on there may be exemplary damages in cases where someone wilfully or knowingly or reck lessly lessly peddles untrut untruths hs for profit. There There must be evidence evidence fit fit to be left left to the jury but, if if there is, then it is is for for the jury to decide decide whether whether there is entitlement to exemplary damages on the basis to which I have referred. It was contended on behalf behalf of the appellants appellants that there ther e was was no evidence evidence fit fit to be left left to the jury in this case case on this issue. In my view view this contention wholly wholly fails. There was ample evidence. It was painstakingly recounted in the summing summing up of of the learned judge. It is helpful helpfully ly referred to and summarised in the judgment of the learned Master of the Rolls. It is reviewed in the speech of Lord Hailsham of St. Marylebone L.C. whic which h I have had the advantage advantage of reading in advance. Similar considerations apply to the question which was put to the jury and which they answered by saying that entitlement to exemplary damages was proved against both defendants. It is in regard to the next question and answer that the greatest doubts and difficul difficultie tiess in my view view arise. Being Being asked—What asked—What additio additional nal sum should be awarded awarded him by way way of of exemplary damages? the answer of the  jury wa wass £25, £25,00 000. 0. So there there we were re three three awards: one one bein being g (for (for the hard  back  back edit editio ion) n) the comp compen ensa sato tory ry figure of £14, £14,00 000: 0: another another bein being g the exemplary damages damages figur fig uree of £25,000. For the total total of of £40,000 £40,000 judgment was entered. I must confess that for my part I should greatly regret it if the practice  beca  became me gene genera rall of havi having ng a separa separate te aw awar ard d of exem exempl plar ary y dama damage gess in this this manner (I wi will ll return to this question question later). But the learned learned judge was was only following the guidance specifically given in  Rookes v. Barnard.  There it was said, at p. 1228, 1228, that the fact that the t he two sorts of damage differ differ essentially does not necessarily mean that there should be two awards.

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.))

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But it was said that there may be cases in which which it is diff difficu icult lt for a judge judge to say whether he ought or ought not to leave a claim for exemplary damages to the jury. I can quite see that in such such a case case it wil willl be easier easier for for an appellate court (where an issue is raised whether there was evidence which could justify an award of exemplary damages) if there are two awards. The award of exemplary damages could be set aside without the necessity for a new trial if the appellate court considered that the evidence was not such such as to have been fit for the consideration of of the jury so as to entitle them to award exemplary exemplary damages. For this reason reason it was was stated in in  Rookes v. Barnard, at p. 1228, that if a judge is in doubt whether he ought to leave a claim for exemplary damages to a jury, then he could invite them to say " what sum they would fix as compensation and what addi tional sum, if any, they would award if they were entitled to give exemplary damages." dama ges." It was this this course that the learned learned judge judge fol follo lowe wed d in the present case. But if if this course is foll follow owed ed the words words " if any " become become of importance. They were were not included included in the question question whi which ch was put to to the jury. There are three very very important issues issues whic which h arise. (1) (1) Did Did the learned learned  judg  judgee give give an adequate adequate directi direction on to the jury to ensur ensuree that they they under understo stood od that they should only award an " additional" sum if they were satisfied that the the amount amount they they were awardi awarding ng as compen compensat sator ory y damag damagee wa wass in itsel tselff not enough enough to punish the defendants? (2) (2) Did the learned judge give give an adequate direction to meet the situation where (as in this case) there are two defendants? defendants? (3) (3) In any any event is the sum of £40, £40,000 000 excessive excessive as an award of exemplary damages and a figure which no reasonable jury could award—with the result that though the purely compensatory part £15,000 is not challenged the award of an additional £25,000 must be set aside? (1) (1) The relevant sentences sentences in the summing summing up have been referred to in the speech of Lord Hailsham of St. Marylebone L.C. and I need not set them out. I would have been been happier if the direction direction on this point (whi (which ch came towards the end of what I venture to think was a masterly review of the case) case) had been ampler and more explici explicitt than it was. But the learned learned  judg  judgee did emph emphas asis isee the word word " additional." He asked asked the jury jury to underl underline ine it. He said said that they they should should underli underline ne it becau because se both both the court court and couns counsel el would want to know " if you do decide to award punitive damages how much more do you award over and above the compensatory damage." Even so it would have been better to have made it abundantly clear that the  puniti  punitive ve eleme element nt is not to be consi consider dered ed in isolation: isolation: an enfor enforce ced d obli obliga gati tion on to pay a large sum sum by way way of of compensatio compensation n has itse itself lf a punitive impact. So a jury ought fully fully to understand that t hat only if a sum sum awarded as com  pensat  pensatio ion n is inadequat inadequatee as a punishm punishment ent shoul should d any any larger larger sum sum be award awarded. ed. Much earlier in his summing-up the learned judge had dealt with this matter in an introductory introductory way. He told the jury that tha t they they were being being asked " not only to give Captain Broome compensatory damages that is a reasonable sum sum for the injury injury to his reputation and the exacerbation exacerbation of his feelings: but in addition to fine Cassell Cassellss and Mr. Irving for for having done what they have done. done. The money which which you you deci decide— de—if if you do decide—to award by way of punitive damages will not go

1096 Lord Morris of

Broome v. Cassell & Co. (H.L.( (H.L.(E.) E.)))

[1972] [1972]

Borth-y-Gest

into the national Exchequer. Exche quer. It wi will ll have to go into Captain Captai n Broome's Broo me's  pock  po cket et." ." Here again there was an omission to emphasise that an award of compensa tion must m ust always a lways and inevitably in evitably be b e a part pa rt of the " fine fine " in cases where the imposition of a " fine " is warranted. Though a study of the shorthand note of what was said has led me to the view view that tha t there the re should have been amplification in the way to which I have referred, the important question now is whether it should be held that the jury were misled with the result result that their award cannot stand. The Th e emphasis placed placed upon the word word " addi ad diti tion onal al"" could not have been lost sight of by the jury. Additiona Addit ionall to what? what ? Quite Qui te clearly, additional addit ional to the amount of compensation awarded. The jury were asked " how much more " they would award. The Th e " more " was to be " over and above " the com  pensati  pen sation. on. It surely must have been clea clearr to the jury that tha t any " more mor e " that they decided upon or any " additional" sum would have to be paid  by those against whom they awarded awar ded it on top to p of the sum that th at they were firs firstt awarding. He Here re was a jury jur y that listened to the case over a period of 17 17 days. They deliberated for nearly five hours. hour s. They awarded a sum of £25,000 £25,000 to be " ad di ti on al " to their award of of £15,000. £15,000. They knew that tha t the total tota l was £40,000. £40,000. Thereafter they heard both counsel agree that there ther e should be a single single judgment judgmen t for that amount amo unt.. No suggestio suggestion n was made (or I think could possibly have been made) that the £25,000 included the £15,000. I would find it diffi difficul cultt to accept that tha t at the stage in their deliberations when they were considering whether Cassells and Mr. Irving should be punished by being made to pay money they should at that stage have left out of account one part of the money that they themselves were awarding awar ding.. If, If, having decided that it was a case for punishpunis hment, the jury were considering the monetary sum which, as such punish ment, should be paid, the point would surely have been raised by one member if not by all members membe rs of of the jury: jury : Are Ar e we not punishing them enough by saying that tha t they must pay £15,000? £15,000? They could have recorded record ed that as their view view had they entertained entertain ed it. I am not prepared to assume that something which which at that stage must really really have been quite obvious was overlooked by the jury. (2) There The re is nothing nothin g in regard to this question which I could usefully usefully add to what Lord Hailsham of St. Marylebone has said in reviewing the authorities autho rities and in formulating his conclusion. I express my concurrence. concurre nce. (3) The approach which should be followed by an appellate court in considering whether an award of damages made by a jury should be assailed assailed on the ground that the sum awarded is excessi excessive ve has been clearly defined defined in author aut horita itativ tivee decisions. They are referred to in the speech of Lord Hailsham Hailsh am of St. Marylebone. Marylebon e. I am bound to say say that the figure figure of £40,000 £40,000 appears appe ars to me to be a high figure. figure. Certainly it must be a very very unusual case in which on a correct application of the law as laid down in   Rookes v.  Barnard   the amount which defendants must pay should so greatly exceed the amount amo unt which is reasonably reasona bly to be received by the plain plaintif tifff by way of compensation. It is this disparity between between the £40,00 £40,000 0 and the th e £15,000 £15,000 that has caused disquiet as to whether the jury may have been caused or allowed allowed to be under a misunderstanding. misunderstan ding. But if if the conclusion is reached

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1097 A.C.

.

Broom Br oom e v. Cassell Cass ell & Co. Co . (H.L (H .L .(E. .( E. )) v

v

"

Lord Morris of Borth-y-Gesl

that the jury knew knew what what they they wer weree about and chose their figures figu res advised advisedly ly then I do not think that I ought to conclude that their " additional" figure figu re of £25,00 £25,000 0 was was so high high that no reasonable reasonable jury could award it. i t. To translate injury injury to and attack upon reputation into monetary monetary terms is is at all times a diff diffic icul ultt exercise. But it was was the same jury that tha t fixed fix ed the " additional" figure of £25,000 that also—without being impeached for so doin doing— g—fi fixe xed d the compensatory figure fig ure of of £15,000. £15,000. If they did not go wide wide B when when fixing fix ing the latter latter why should should it be determined that th at they went wide in fixing fixin g the former? former? The conclus conclusion ion which which I think can be drawn is that the jury took a very serious view of the conduct and attitude of the defendants. If, If, after hearing all the relevant features of the case case probed probed and examined over a period of seventeen days and hearing the evidence of such of the parties as decided to call or give evidence, the jury did take a very serious view, view, there was evidence evidence which which entitled them to do so. They C may have regarded the conduct and attitude attit ude of each of of the defendants with equally sharp shar p disfavour. If it was their considered considered collective view view that that the defamation was grave, and that publication was deliberately undertaken  by those those who who had had regard regard for for their their own advant advantage age but none none for for the honour honour and renown of one whom they traduced, then the jury were warranted in deciding that that such such conduct should should be heavily heavily penalised. Whatever might might  j)  j ) have have been been my person personal al asse assess ssme ment nt had had I been been on the the jury I have have not been been  persu  persuade aded d that it must be deci decide ded d that that the the penalt penalty y impo impose sed d wa wass beyon beyond d the limit to whi which ch a reasonable jury could could go. Nor can it be said with with any assurance that an estimation of a figure by a learned judge would necessarily necessarily have superior validity. A learned judge has experience and and knowledge of other cases but in a matter so elusive as fixing in monetary terms a reflect reflection ion of feelin feelings gs of disapproval there ther e is no norm. It may be E diff diffic icul ultt to give give guidance guidance but a judge judge should be able to express to a jury the same guidance as he would give to  himself. For the reasons which I have given I consider that the appeal should be dismiss dismissed. ed. As I have indicated, the appellants in no way way sough soughtt to impugn the decision in  Rookes v. Barnard  [1964] [1964] A.C. 1129. 1129. Such ardour ard our in criticism as may have been evinced in the Court of Appeal by counsel  p for for the the respon responden dentt beca became me tempe tempere red d and and modified by the ref reflect lectio ion n that an assault upon  Rookes v.  Barnard   was not essential for his success in this appeal and that the overturning of   Rookes V.  Barnard   might at least  poss  possib ibly ly,, invo involv lvee the jett jettis ison onin ing g of all all the the proc procee eedi ding ngss to date and and a com com  plete  plete new new trial trial on a fres fresh h basis. basis. But But as so much much was was said said about about Rookes v.  Barnard  and   and because in the printed case of the respondent the first reason set out was that your Lordships' House should depart from its decision in G  Rookes v. Barnard  (in   (in so far as that decision altered the law on exemplary damages generally or at least in defamation cases) I must record my opinion. In  Rookes v.  Barnard   one submission that was made was that exem  plar  plary y dama damage gess coul could d not be aw awar arde ded d in that that case. case. Other Other subm submis issi sion onss led to a somewhat general consideration of the law relating to exemplary IT damages. The report report of the arguments (fro (from m p. 11 1158 to p. 1164 1164)) shows shows that that certain authoritie authoritiess and and certain text books were referred referred to and were were examined. examined. There were were citation citationss of of some some thirty cases. In the result the House examined and reviewed the law and came to certain conclusions.

1098 Lord Morris of Borth-y-Gest

Broome v. Cassell & Co. Co. (H.L (H .L.( .(E. E.)) )) \

\

[1972] [1972]

/ /

The House was was not bound to limit limit those conclusion conclusionss with within in any any formulat formulation ion . which counsel had thought fit to formulate. It would be idle to deny that a very considerable pruning operation was decided decided upon. It may be that there are some some who would would not have pruned so much and so drastically. It may be that there the re are some who who woul would d have  pruned  pruned more more seve severe rely ly.. What What wa wass done wa wass done in the hope hope of remo removi ving ng from from the law law " a source of confusio confusion n between between aggravated and exemplary damages." It may be that there are some some who who feel feel that though though the prepre- B vious law (built up, as the common law is, as a result of particular decisions given given in particular partic ular sets of of circumstances) was in very many m any respects imprecise and even illogical, yet it was somehow found in practice to work and and to be no serious serious cause of confu confusio sion. n. It may be that there are a re some who consider that manifest variations and divergencies in terminology did not reflec reflectt any really fundamental differ difference encess of approach appro ach:: that, that, for  for  r example, when in Mediana {Owners) v. Comet  {Owners) 113,   {Owners) [1900] A.C. 113, 118 Lord Halsbury L.C. made a reference, though only a passing and incidental incidental one, to punitive damages: " I put aside cases of trespass where a high-handed procedure or insolent behaviour has been held in law to be a subject of aggravated damages, and the jury might give what are called punitive damages " he had much the same conception in mind as had Lord Atkinson when in  Addis v.  Gramophone Co. Ltd. [1909] A.C. 488, 496, he made an in in cidental reference to circumstances of malice, fraud, defamation or violence which would sustain an action of tort in which a person might no doubt "recover exemplary damages, or what is sometimes styled vindictive damages "; or as had Lord Loreburn L.C. when he spoke in  E. Hulton & E  [1910]] A.C. 20,2 20 ,25: 5: Co. v. Jones [1910 " In the seco second nd place the jury were entitled entitled to say this kind of article article is to be condemne condemned. d. There is no tribunal tribunal more fitted to decide in regard to publications, especially publications in the news  paper  paper press, press, whet whethe herr they they bear a stamp stamp and characte characterr whic which h ough oughtt to enlist sympathy sympathy and to secure secure protection. If they they think that the th e licence lic ence is not fairly fairly used used and that the tone and style style of of the libel is is F reprehensible reprehensible and ought ought to be checked, checked, it is for for the jury to say so;" so ;" v, But, even if if some some of of the thoughts though ts above referred to are are in fact fact enter tained, do they give warrant for re-opening now the debate that led to the decision in Rookes v. Barnard? I do not think so. I do not think think that the  powe  powerr that wa wass refe referr rred ed to in the stat stateme ement nt of July July 26, 26, 1966, [196 [1966] 6] 1 W.L.R. 1234 1234 was intended to encourage a tendency periodically periodically to chop and G change the law. In branches of the law law where where clarificat clarification ion becomes neces sary there may well be decisions which as a matter of policy are not universally welcome or where some may think that some variant of the decision decision one one way or the other would would have been more more acceptable. But this does not. mean that decisions of this House should readily be reviewed whenever whenever a case presents itsel itselff which which is covered covered by a decision. decision. There The re must JT  be some someth thin ing g much much more. more. In his book   Principles  of the Law of   Damages  (1962) Professor Street  pose  posess the quest questio ion n whet whethe herr awards awards of of exemp exemplar lary y damag damages es are ever ever just justif ifie ied. d.

A.C.

Broome v. Cassell & Co. (HX,.(E.))

1099 iol$F%£i

Lm

He outlines seven arguments against them and with mathematical im partia  partialit lity y seve even argu argume ment ntss in their their favo favour ur conc conclu ludi ding ng that one canno cannott say say whether or not exemplary damages are desirable. desirable. Whatever general vie views ws may be entertained or whatever inclination there may be in diffe differen rentt  person  personal al view views, s, I see see no advantag advantagee in refu refusi sing ng at this this juncture juncture to reco recogn gnis isee that a deliberate pronouncement was made in Rookes v. Barnard. Though I consider that no reason has been shown for denying to that B pronouncement the authority authority of a decision decision of of this House it is not incon sistent with this approach to express the hope that a necessity for a separate and isolated assessment assessment of of exemplary damages wi will ll be rare. rare. In the search for authority only one case was found prior to  Rookes v. Barnard  in  in which there was was such such a result. That was was Loudon v. Ryder  [ 1953] 2 Q.B. 202 now  is, I think, the first overruled. The present case is, fir st one subsequ subsequent ent to  Rookes v.  Barnard   in which such a separate award has actually been made. In the th e older cases the " vindicti vindictive ve " or " exemplar exemplary y " or " punitive punitive " aspect merely merely became became one element in a composite composite whole. whole. Thus the law as it was in 1877 was summarised in the 3rd edition of   Mayne's Treatise on Damages. He pointed (see p. 37) 37) to the differ differenc encee between between damages in cases of contract (where they were only a compensation) and in cases of tort. In the latter " when when there were no circum circumstance stancess of aggravation aggravation they they D are ar e generally generally the same." But he said at p. 37: " Where the injury is to the person, or character, or feelings, and the facts disclose fraud, malice, violence, cruelty, or the like, they operate as a punishment, for the benefit of the community, and as a restraint to the transgressor." In the various cases cited (see pp. 36, 37, 514, 516) one amount only of damages was assessed. For Fo r a later general summary of of the law (as it was in 1895) reference may be made to Sir Frederick Pollock's 4th   The Law of Torts. He refers (see p. 174) to cases edition of  The cases where where there is great injury without the possibility of measuring compensation by any numerical numerical rule. In such such cases cases he said: sai d: " . . . juries have have been been not not only only all allow owed ed but encou encoura raged ged to give give damage damagess F that tha t express express indignation indignation at the defendant's wrong wrong rather rathe r than a value set upon upon the plaint plaintiff's iff's loss. Damage Damagess awarded awarded on this principle principle are called called exemplary exemplary or or vindictive." He went went on on to explain explain that th at:: " The kind of wrongs to which they are applicable are those which, besides the violation of a right or the actual damage, import insult or outrage," E

The cases cited, to which I need not refer in detail, again appear to me G to be cases in which only only one figu figure re of of damages was assessed. assessed. When juries came to award damages in such cases of tort they did there fore give give and indeed were " encouraged " to give give a sum sum which which marked dis  pleasure  pleasure or indi indign gnati ation on or whic which h wa wass to serv servee as a deterr deterrent ent or as an example or which vindicated the law or which was a way of punishing the defendant. But juries were not invited invited to isolate such such element as was was purely  j j puniti punitive. ve. I do not expec expectt that they they did did in practic practice. e. In some some cas cases es their their dis dis  pleasu  pleasure re or indign indignati ation on woul would d operate operate as a kind kind of toppin topping-u g-up p proces process. s. But But if the process by which they had arrived at a figurecould have been analysed (which normally it could not have been), while it would probably have been

1100 Lord Morris of

Broome v. Cassell & Co. (H.L. (H .L.(E (E.) .)))

U972] U97 2]

Borth-j-Gest

found found that there had had been been nothing nothing in the nature of of a mathemati mathematical cal addition . of separate sums, yet it would have been recognised that some (wholly unascertainable) part pa rt of the whole whole must have been purely punitive. Stated otherwise otherwise such (unascertained) part p art was a fine fine.. Logical analysis analysis force forcess the conclusion therefore that in the result there would in a civil action have  been  been puni punish shme ment nt for for cond conduc uctt not partic particula ularis rised ed in any any crimi crimina nall code code and and that such punishment had taken the form of a fine not receivable by the state but as a sort sort of of bonus by by a private individual individual who who would would,, apart from from B it, be sola solaced ced for for the wrong wrong done to him. him. There may be much much to be said said for making it permissible in a criminal court to order in certain cases that a convicted convicted person should pay compensation.. compensation.. There There is much to be said said against a system under which a fine becomes payable in a civil court without any of of the safeguards safeguards whic which h protect those charged with crimes. If therefore the working of the law before  Rookes V. Barnard  is   is exposed to a relentless logical examination it has to be conceded that some features of it were not in in principle principle acceptable. Yet it may be that no serious serious injust injustice ice resulted. And indeed indeed as we have been told the life life of the t he law ofte often n lie liess not in logic  but  but in expe experi rien ence ce.. It woul would d howe howeve verr be an unfort unfortuna unate te and and bizarr bizarree resul resultt if a wholly laudable attempt to rationalise the law had brought it about that the element which it was most sought to suppress was so brought into sharp relief relief that it attained a signi signific ficanc ancee never before before exhibited. D I would regard the present case as exceptional in the sense that the jury must have considered that the conduct of the defendants merited very special special condemnation. In other other than an exceptional case where exemplary exemplary damages are to be awarded I would hope that a jury would be unlikely to award a total sum which exceeded its purely compensatory component ele ment to an extent in any way comparable to that which is revealed in the  prese  present nt case case.. I would dismiss the appeal. My Lords, Lords, the main issue issuess to be determined in this appeal are ar e (1) whether what was said said by my noble and learned friend, Lord Devlin, in  Rookes v.  Barnard  [1964] [1964] A.C. A.C . 1129 1129 with regard to exemplary damages, and with with which which all all the other members of the House then F sitting agreed, correctly states the law: (2) (2) if it does, whether Lawton J. erred in leaving leaving the question of of exemplary damages to the jury: jur y: (3) having left left it to them, whether whether he misdirec misdirected ted them with with regard regard theret the reto: o: and (4) (4) whether the sum of £40,000 awarded by them, of which £25,000 was exemplary damages, was so excessive that that verdict cannot be allowed to stand. I propose to consider the firs firstt of these these questions last. Although Rookes ® v.  Barnard   was not concerned with damages for libel, I consider the other questions on the assumption that what was said in that case is not to be regarded as obiter in relation to libel cases and is to be regarded as binding on all inferior courts. Lord Devlin expressed the view that there were only three categories of cases in in which which exemplary exemplary damages could could be awarded, namely: (1) (1) JJ JJ where there had been oppressive, arbitrary or unconstitutional action by servants of the government; (2) where the defendant's conduct had been calculated by him to make a profit for himself which might well exceed VISCOUNT DILHORNE.

1101 A.C.

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E.) )

Viscount Dilhom Dil homee

the compensation payable to the   plaintiff;  and (3) where exemplary damages are expressly authorised by statute. The appellants contended that this case did not come within the second category. They called called no evidenc evidencee at the trial and the question question whether it should have been left to the jury to consider exemplary damages, depends on whether there was evidence given given or adduced on behalf behalf of the plaint plaintiff iff on which the jury were entitled to infer and conclude that the defendants' B conduct was of that character. charac ter. I do not think that Lord Devlin ever envisaged that, to bring a case within the second category, the plainti plaintiff ff would would have to show that there th ere had  been  been some someth thin ing g in the nature of a mathem mathemati atical cal cal calcul culati ation on by the de fendant, an assessment of the profit likely to ensue from the publication of defamatory matter and an estimation of the risk of being sued and the damages likely likely to be awarded if if an action was brought. If a plaint plaintiff iff had ha d r  to prove that, it would be seldom that he would be in a position to do so.  Newsp  Newspape apers rs and and book bookss are usua usuall lly y publ publis ishe hed d for for prof profit it and and that fact fact does not by itse itself lf make the publisher liable to pay exemplary damages. I think that Widgery J., as he then was, was right when he said in  Manson v. Associated Newspapers Ltd.  [1965] 1  W.L.R. 1038, 1040-1041: " . . . it is perf perfec ectl tly y clear clear,, from from thos thosee authorities," authorities,"  McCarey v.  Asso n ciated Newspapers Ltd. [1965] 2 Q.B. 86 and  Broadway Approvals  Ltd. v. Odhams Press Ltd. (No. 2) [1965] 1 W.L.R. 805 " that in a case in which a newspaper quite deliberately publishes a statement which it either knows to be false or which it publishes recklessly, careless whether it be true or false, and on the calculated basis that any damages likely to be paid as a result of litigation will be less than the E profits profits which which the publication of that that matter matter wi will ll give, then Lord Devlin's conditions are satisfied and exemplary damages are  permissi  permissible. ble."" He went on to say at p. 1041 that he proposed to tell the jury that they could consider exemplary damages: " . . . if, having having consid considere ered d what material material there there is befo before re them, they they are F driven driven to the inferenc inferencee that this was an article published published by the de fendants conscious of the fact that it had no solid foundation and with the cynical and calculated intention to use it for what it was worth, on the footing that it would produce more profit than any  possi  possibl blee penalt penalty y in dama damage gess wa wass like likely ly to be." be. " I think too that Lawton J. put the matter correctly when he said in the G course of his summing-up: " A man is liable to pay damage damagess on a punitive punitive  basi  basiss if he wilfu lfully lly and and know knowin ingl gly, y, or reck reckle less ssly ly peddle peddless untruths untruths for for  profit."  profit." In my opinion, there was ample evidence on which the jury was entitled to come to the conclusion that the case came within the second category. On December 9, 1966, Mr. Irving the author, sent the manuscript of the JJ book to Cassells with a letter in which which he said said that Captain Broome Broome had threatened legal legal action if the manuscript was published, published, and on December December 23 23 he sent them a long letter in which he quoted an extract from a letter he had received received from from Kimbers the publishers to whom whom he had h ad first firs t submitted submitted

1102 Viscount Dilhome Dil home

Broome Broome v. Casscl Cassclll & Co. (H.L.(E.)) (H.L.(E.) )

[1972]

the manuscr manuscript ipt.. That extrac extractt stated: " . . . if the book book goes goes to a lega legall man as it is, he could could only only tell you that half is libellous. We could not  poss  possib ibly ly publ publish ish the the boo book k as it i s . . . " The manuscript submitted to Cassells was identical with that which Kimbers had seen. seen. Perusal of of it by any any intelligen intelligentt publisher must, eve even n without the advantage of having the views of another publisher, have led to the conclusion that it contained many very grave and serious libels on Captain Broome and the jury were full fully y entitled to conclude that tha t Cassells Cassells realised realised this. Mr. Kimber Kimber gave evidence evidence that about March 8, 196 1967, 7, he had telephoned Mr. Parker, a director of Cassells and told him that they had had one or two threats of libel actions if they published the book; to which which Mr. Park P arker' er'ss response response was: " In that tha t case we we wil willl tight tighten en up the indemnity clause in Mr. Irving's agreement." On December December 27, 1967 1967,, Captain Broome wrote to Cassells Cassells saying diat dia t the manuscript manuscript was " unquestionably unquestionably libellous." libel lous." They replied replied saying that in the light light of of his comments comments " drastic revision revisionss " had been been made. In fact, as Cassells must have known, the revisions that were made did not materially affe affect ct the passages defamatory of Captain Broome. On February 16, 1968, the business director of Cassells circulated a memo randum in the following terms, to all concerned: " It is anticipated anticipated that early copies copies of of The Destruction of of Convo Convoy y PQ17 PQ17 will will start coming coming into into the house on March 5. Will Will you you please note that absolutely and positively not one single copy, on any  pretext  pretext whatso whatsoev ever er,, is to be remo remove ved d from the hous housee without without refe refere renc ncee to me. " Mr. Mitchell: Would Would you you please noti notify fy the printer that t hat this book is to be treated on a maximum maximum securit security y basis and ensure ensure that not one one single single copy copy slips through their net. ne t.""

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Shortly thereafter Cassells circulated proof copies of the book. Why they they did so after the circulation circulation of this memorandum is not known known for no evidenc evidencee was giv given en for for them. In the absence of of any explanation explanation the th e jury were, in my view, entitled to draw the inference that they had decided to  publ  publis ish h the book, book, despi despite te Captai Captain n Broome-'s e-'s threats of action, action, know knowin ing g that F  pass  passag ages es in the book book we were re libe libell llou ouss of Captain Captain Broo Broome me and not carin caring g whether those passages were true or false and on uie footing that it was worth their while to run the risk of an action being brought by him and of his obtaining obtaining damages in order to make a profit profit on die book. On March 5, 1967 1967,, Captain Broome issu issued ed a writ for for libel. On April 1968, his statement of claim claim was delivered. Cassells then knew, if  Q 29, 29, 1968, they were in any doubt before, of what passages he was complaining. On June 14, 14, 1968 1968,, they deliver delivered ed their defence defence.. They pleaded pleaded that th at the words complained of were true in substance and in fact in tiieir natural and ordinary ordinary meaning. They did did not seek seek to justify justify the meaning which the statement of claim alleged the words complained of bore, inter alia, that Captain Broome Broome had been disobedient, disobedient, careless, incompetent, indi indiff ffere erent nt „ to die fate of the merchant ships and had been largely responsible for or contributed extensively to the loss of two-thirds of the ships of die convoy. Despite the issue of this writ, Cassells went on and published a hard back

1103 A.C.

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E .))

Viscount Dilhorae Dilhora e

edition edition of of the book. That led to another writ being being issued issued by by Captain Captain Broome. Again in their defence to this statement of claim Cassells pleaded that the words complained of were in their natural and ordinary meaning true in substance and in fact fact but but did not seek seek to justif justify y the meanings meanings which which in the statement of of claim claim it was was alleged alleged they they bore. The jury by their verdict rejected rejected the plea of justifica justification tion and must have accepted accepted that that the passages complained of of bore the meanings alleged alleged by the plaintiff. I do not propose to t o set out what those passages were. Suff uffice ice it to say say that they clearly alleged that Captain Broome had been disobedient, careless, incompetent, indiffe indifferent rent to the fate of the merchant ships, that he had wrongl wrongly y withdrawn his destroyer force from from the convoy, that tha t he had taken taken it closer to the German airfields than he had been ordered to do and that he had been responsible for the loss of two-thirds of the ships in the convoy. He was was in fact accused accused of of cowardice. That Cassells did not appreciate that the passages complained of could  be under underst stood ood to have thes thesee meani meaning ngs, s, is is hard to accept accept.. Ye Yett after after publica publica tion of the th e proof copies, after receipt of of the writ and the the statement of claim claim in respect of that publication, and when they knew the meanings which it was alleged the passages bore, they went on and published the hard back edition, and at the trial persiste persisted d in their plea of of justific justificatio ation. n. In these circumstances iiff Lawton J, had ruled at the end of the plaintiff's was asked case, as he was  asked to do, that there was no eviden evidence ce from from which which the injury injury could infer that the case came within within the second second category, he would in my my opinion opinion have erred. I therefore therefore reject reject this contention contention of the appellants. After specif specifyin ying g the three categories of cases in which which in his view view exemplary damages might be awarded, Lord Devlin in   Rookes v.  Barnard said that there were three considerations which must always be borne in mind and then went on to say [1964] A.C. 1129,1228: " I n a case in in whi which ch exemplar exemplary y damages are appropriate, appropr iate, a jury should be directed that if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated aggravated by the way way in which which the defendant has behaved to the plain plaintif tiff) f) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it, then then it can award award some some larger larger sum." sum. "

Complaint is made that Lawton J. gave no such direction to the jury. With the agreement of counsel, he asked them to answer seven questions. The first was whether, in respect of the hard back edition, the words G complained of of were defamatory of of the  plaintiff;  the second, were they true in substance and in fact. fact. Their Their answer answer to the first first question was, Yes and to the secon second, d, No. The third question question wa was: s: " What What compensat compensatory ory damages damages do you award the plaintiff? plaintiff? " Their Their answer was £14,000. £14,000. Then in answer to the the fourth and fift fifth h questions they said that he was was entitled to exemplary damages against both defendants. The sixth sixth question question was " What additional additional J J sum should be awarded him by way of exemplary damages? " Their Their answer was £25,000. After the questions had been handed to the jury in the course of the summing-up, Lawton J. told them that, after considering what were the

1104 Viscount Viscount Dilhorne

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

[1972]

compensatory damages if they found for the  plaintiff,  they should go on to consider whether he was entitled to exemplary damages. As to that, tha t, he told them to consider consider the case case against against each each defendant defendant separately, saying: " In respect respect of each of them you will will ask yourselves yourselves this thi s questio ques tion: n: ' Has the plai plaint ntif ifff proved his entitlement entitlement against that defendant? ' If the answer is yes, then you will have to go on and assess how much  punitiv  punitivee dama damage gess shoul should d be awarded." In the next paragraph of his summing-up, he repeated this, saying: " You will will have to ask yourselves: your selves: ' Has he proved that he is entitled to punitive damages damages against against Cassell Cassell & Co. Ltd.? Ltd .? ' If the answer answer is no, that is that. If the answer is yes, you will will have to asses assesss the damages."

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And then then he aske asked d the jury jury to underline the word word " addi ad diti tion onal al"" in the C sixth question question as he and learned counsel counsel wanted wanted to know: " If you do decide to award punitive damages, how much more do you award over and above the compensatory damage?" The jury jur y were thus clearly clearly told that if they found found that the plain plaintif tifff was entitled to punitive damages, they must then assess what punitive damages should should be awarded. They were were never told told that tha t in considering considering whether any any £> sum should be so awarded, they must have regard to the sum they awarded for compensatory damages, and if, and only if, that sum was inadequate to punish the defendants, should they add to it by awarding a sum for exemplary damages. The failure to give such a direction, I regret that I cannot but regard as a most serious omission omission.. It is one of the most most important import ant features of Lord Devlin's speech speech that tha t a direction on the lines lines he stated should be ** given. given. It was not, and instead instead the jury were told twice twice that, if they held that Captain Broome was entitled to exemplary damages, they must assess them. The jury' ju ry'ss verdict verdict show showss that they thought that £15,0 £15,000 00 compensatory damages was insuffic insufficient ient,, but if they had been told that they must, in assessing exemplary damages, take into account the sum awarded in com  pensat  pensation ion,, it is poss possib ible le that they woul would d have have aw award arded ed not £25,0 £25,000 00 but only only p £10,0 £10,000 00 as exemplary damages, that is to say, that they would would have deducted deducted from from the £25,000 £25,000 the £15,000 £15,000 compensatory damages. I regret having to come to this conclusion but I see no escape from it. After a trial lasting 17 days and lengthy lengthy hearings hearings in the Court of Appeal Appea l and in this House, one feels some reluctance to say that the jury's verdict should should not stand. If all the counsel counsel engage engaged d in the case had told the  jury that a sum shou should ld only only be awa awarde rded d for for exem exempl plar ary y damag damages es if the Cr amount of the compensatory damages was insuff insuffici icient ent punishment, then it it might be possible to say that despite the omission in the summing-up, the  jury  jury ca can n have have been been in no doubt doubt as to what what they they we were re requir required ed to do. Unfortunately all counsel did not tell them that. One counsel counsel told the  jury in his final address address that they they must must consi consider der exem exempl plary ary dama damage gess quite separa separatel tely y from from comp compen ensa sato tory ry damag damages es.. He told told them: " . . . they they are J J completely unconnected with each other and in no sense does the one head fall to be balanced balanced against the other " and: an d: " The two sums are so differ differen entt that there is no propriety propriet y in any sense sense in balancing them up." up ."

1105 A.C.

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

Viscount Dilhorne

He thus indicated that account should not be taken of the amount of compensatory damages when deciding what, if any, sum should be awarded for for exemplary exemplary damages. Counsel Counsel for Cassells Cassells did not refer refer to t o the matter  but Mr. Coli Colin n Dunca Duncan n in his his final inal addres addresss for for the defend defendan antt Irvin Irving g read read to the jury the " if, but only if," if," passage of of Lord Lord Devlin's Devlin's speech. As the case was presented to the jury, I can see no ground for the conclusion that they must, despite the omission in the summing-up, have been been aware that they had to take into account the compensator compensatory y damages when deciding, if they held that there was entitlement to exemplary damages, what sum, sum, if any, should should be awarded on on that account. On the contrary, the  pass  passag ages es I have have cite cited d from the summ summin ingg-up up show that they they we were re told told that, if they found found entitlement, they must then assess an amount for exemplary damages. I have regretfully come to the conclusion that in consequence of this omission, the verdict should not be upheld. Another criticism made of the summing-up was that the jury were not told on what basis they should assess assess the exemplary exemplary damages if if they found found that that the plai plainti ntiff ff was entitled to them from from both defendants and if, if, in their opinion, the degree of of guilt of of the defendants differ differed. ed. In the Court of Appeal there was considerable divergence of view as to the proper direction direction to be giv given en on this. While While there is ample authority for the proposition that against joint tortfeasors there can only be one verdict and one judgment for a joint tort, there is not a great deal of authority on this question. question. Such Such as there is points to to the conclu conclusio sion n that the plaint plaintiff iff can only only recover the amount which which all the defendants should should  pay and and that the amount amount to be awarde awarded d shou should ld not be incre increas ased ed to a sum thought adequate adequa te to punish the most guilty guilty defendant: defenda nt: see  Dawson v. M'Clelland   [1899] 2 Ir.R. 486, 490 per   Andrews J.: per   Boyd J. at  p.  493 and  per   FitzGibbon L.J., at p. 499;  Smith v.  Streatfeild   [1913] 3 K.B. 764, 769 per   Bankes J. and   Gatley on Libel and  Slander,   Slander, 6th ed. (1967) (1967),, para. par a. 1389 1389.. If that tha t were not the case case an innocent innocent party party or a less guilty  party  party migh mightt have have to pay pay a sum far far in exce excess ss of that whic which h he ough oughtt to  pay. The resu result lt of this this conc conclu lusi sion on appears appears to be that if three three defen defendan dants ts are sued for for writing, writing, printing and publishin publishing g a libel, libel, if the publisher publisher and author are held liable to pay exemplary damages and the printer is not, the plain plaintif tifff will will not not be be awarded exemplary damages and the publisher and author will avoid liability for such damages. The summing-up contained this passage: " . . . say, say, for for example, example, you you took took the view that Mr. Irving Irving wa wass more more to blame than Cassel Casselll & Co., or to be fair, you you took the view view that Cassell & Co., being an experienced firm of publishers were more to  blame  blame than this this youn young g man, man, Mr. Irving Irving,, shou should ld you make make Cass Cassel elll & Co. Co.  pay a larger sum by way of punitive damages than Mr. Irving? The answer to t o that is No. Whatever Whatever damages, damages, if any, you decide should be awarded by way of punitive damages must be the same sum in respect of both Mr. Irving and Cassell Cassell & Co. Ltd., Ltd., if you you find find them both liable to pay punitive damages." Later in response to an intervention by counsel, the judge made it clear

1106 Viscount Dilhorne

Broome Broome v. Cassel Casselll & Co. (H.L.(E.))

[1972]

that this did not mean awarding one sum against each defendant but one sum against both, " While it can be said that the direction on this might have been more clearly expressed, I think it suffices for this passage did indicate to the jury that they should award a sum which was appropriate to the less guilty of the two. It may, of of course, be the the case case that the jury did did not find that one was more guilty guilty than the other. I now turn to the question question whether whether the damages damages awarded were so g excessive that the verdict cannot be allowed to stand. In  Rookes v. Barnard   [1964] A.C. 1129, 1228 Lord Devlin recognised that where there was entitlement to exemplary damages, that did not necessarily mean that there must be two awards though he expressed the view that where there was doubt about entitlement to such damages, to avoid the risk of a new trial, it might be convenient to have separate awards. One consequence of of there being two awards, awards, one for for compensatory compensatory C damages and one for exemplary, is that the jury's verdict is more open to attac a ttack. k. If £15,00 £15,000 0 was suff suffic icie ient nt to compensate the plaint plaintiff iff for the t he injury injury inflic inflicted ted on him, what what justificati justification on can there be for for an award of a further £25,000 as exemplary damages? Lawton J. very clearly told the jury that they were being asked to fine Cassells Cassells and Mr. Irving for what they had done. He told told them them that they they J J were " really in the position of a judge or magistrate trying a criminal punitive damages damages " must be reasonabl reasonablee in all the case" and that punitive circumstances." An appellate court should only interfere with a jury's verdict as to damages if it is such as to show that the jury has failed to perform its duty:  Meclianical  and General Inventions Co. Ltd. v.  Austin and Austin  Motor Co. Ltd. [1935] A.C. A.C. 346 346 per   Lord Wright at p. 375:  Bocock  v. E 13 03:  Scott  v. Musial  [1959]  Enfield Rolling Mills Ltd. [1954] 1 W.L.R. 1303: 2 Q.B. 429:  Lewis v.  Daily Telegraph  Ltd. [1963] 1 Q.B. 340 340 and other cases. To be set aside, the verdict verdict must be out of of all proportion to the facts. The award of £25,000 for exemplary damages, as a fine and despite the direction given by Lawton J. to which I have referred, in addition to the award of £15, £15,000 000 compensat compensatory ory damages is, in my opinion, opinion, out of of all p  proport  proportion ion to the fact factss and and suffices to show show that they they fail failed ed to perf perfor orm m their duty. Their award was, in my view, view, far in excess excess of of the most that twelve twelve reasonable men could be expected to give. give. If they had appreciated apprec iated that they had to take into account the compensatory damages, then as I have said said perhaps they might might have awarded an additional £10,00 £10,000 0 as exemplary damages. I would would mys mysel elff have assessed assessed a considerably lower figure fig ure.. Perhaps, one does not know, know, they may have thought that the judge G had power to set off one against against the other. However However that may be, I think that the highest figure that could have been awarded by a jury performing its duty for exemplary damages would have been £10,000 in which case  judg  judgmen mentt would would have have been been giv given en not for  for  £40,000  £40,000 but for £25,000. On this ground, too, in my opinion the verdict cannot stand. I turn now now to the fir first st question. question. Does  Rookes v.  Barnard  [1964] [1964] J J A.C. 1129 correctly state the law with regard to exemplary damages? The Court of Appeal held held that it did did not. It was said said that tha t it was a decision decision given given per incuriam. The Court of Appeal Appea l refuse refused d to follo follow w it and

1107 A.C. Broo Broome me v. Cassel Casselll & Co. (H.L.(E.)) Viscou Viscount nt Dilliorne  judg  judges es we were re told told to direc directt juries juries in ac accor corda dance nce with with the law law as under understo stood od "  befo  before re that that ca case se.. Decisions of this House are binding on all inferior courts and must be foll follow owed ed by them. them. There are, are , I think, two grounds on whic which h the Court of Appeal can justifiably refuse to follow what has been said in this House. The firs firstt is that what was said said was obiter. While While it might might be argued argued that tha t the observations made made with regard regard to exemplary exemplary damages damages in in so far as B they they related to libel libel actions were were obiter as no question question with with regard to them arose in  Rookes v.  Barnard   where the question was, could such damages  be give given n for for intimi intimidat dation ion,, the Court Court of Appeal Appeal did did not base base their their ac acti tion on on this ground. The second is where where there are two two clearly inconsistent decisions of this House, and the Court of Appeal has then to choose which to follo follow. w. In the Court of of Appeal it was asserted asserted that t hat what was said said in  Rookes v.  Barnard  was in confli conflict ct with with two previous decisions of this c   House,  E. Hulton & Co. v.  Jones  [1910] A.C. 20 and  Ley v. Hamilton, 153 L.T. 384 but, as I read the judgments, the Court of Appeal did not  proce  proceed ed upon upon this groun ground. d. To say that a decision of this House was given per incuriam is, to say the least, unusual and could be taken, though I cannot believe it was so intended, intended, as of a somewhat somewhat offe offens nsiv ivee character. character. While I regret the use use of D this expressio expression, n, I doubt if it was intende intended d to mean mean more than that the questions involved deserved more consideration in relation, among other things, to libel actions. If that is what was meant, it is, I must confess confess,, a view with which I have considerable sympathy. As I understand the judicial function functionss of this House, although although they they involve applying well established principles to new situations, they do not involve involve adjusting the common common law to what what are thought to be the social social norms ** of the time. They do not include bowing bowing to the wind wind of of change. We have to declare what the law is, not what we think it should should be. If it is clea clearly rly established that in certain circumstances there is a right to exemplary damages, this House should not, when sitting judicially, and indeed, in my view, view, cannot properly abolis abolish h or restrict that right. This, indeed, indeed, was recognised by Lord Devlin when he said, at p. 1226, that it was not open  p to this House House to "arr "a rriv ivee at a determ determina inatio tion n that refu refussed alt altoge ogethe therr to recognise recognise the exemplary princi pri nciple ple." ." If the power to award such damages is to be abolished or restricted, that is the task of the legislature. One criticism that can be made of Lord Devlin's speech is that while recognising that a refusal altogether to recognise the exemplary principle was not possible, he nevertheless restricted the power to award such  _ dama damage gess so that they they ce ceas ased ed to be obtain obtainabl ablee in ca case sess wher wheree prior to  they might have been given.  Rookes v. Barnard  they I agree with Lord Denning M.R. that the   pie-Rookes v. Barnard  McGregor  on  on Damages,  12th ed. (1961), law was well stated in  Mayne and  McGregor   p. 196, 196, para. par a. 207 207 where it is said said that tha t such such damages damages can only be given given "where the conduct of the defendant merits punishment, which is  _. only only cons consid ider ered ed to be so wher wheree his cond conduc uctt is wa wanto nton, n, as wher wheree it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the  plai  plaint ntif iff' f'ss rights."

1108 Viscount Dilhorne

Broome Broome v. Casscll Casscll & Co. (H.L.(E.)) (H.L. (E.))

[1972]

A similar statement is to be found in  Mayne on Damages, 11th 11th ed.  4 1. (1946), p. 41. I do not think that this statement of the law is to be questioned because at p. 200 200 in paragraph 212 212 of the 12th 12th edition edition it is said said tha t hat: t: " i t cannot cannot  be said said that Engli English sh law law has comm commit itte ted d its itself elf fina finall lly y and full fully y to exem exempl plary ary damages," (a view which conflicts with the opinion of Lord Devlin to which I have referred), " and many of the . . . cases point to the rationale not of punishment punishment of the defendant defendant but bu t of of extra compensation compensation for the  plai  plaint ntif ifff for for the inju injury ry to his feel feelin ings gs and dignit dignity. y. This is, of course course,, not exemplary exemplary damages damages at all. It is another head of of non-pecuniary loss loss to the plaintiff." This passage in paragraph 212 did not appear in the earlier editions. I am not concerned with the rationale but with what was recognised to  be the law law before before  Rookes v. Barnard. And I am reinforced in my view by the fact that what was was said in paragraph paragrap h 207 207 appears to accord accord with with Australian law. In this field fie ld there does not appear to have been been any differe difference nce between between Australia Australian n and English law law prior pri or to Rookes v.  Barnard.  In Uren v.  John Fairfax & Sons Pty. Ltd., 117 117 C.L.R. 118 the High Court of Australia refused to follow  Rookes v.  Barnard   and held that exemplary damages might be awarded if it appears that the defendant's conduct in committing committing the wrong exhibited a contumelious contumelious disregard of the plaintiff's plaintiff's rights, McTiernan McTiernan J. saying, saying, at p. 122, 122, that the law of of exemplary exemplary damages damages was " compendio compendiously usly stated " in the passage passage I have cited from Mayne and  McGregor.  McGregor. Lord Devlin's first category "oppressive, arbitrary or unconstitutional action by servants of the government," a category which he said he would not extend to oppressive action by private corporations or individuals, was subjected subjected to serious criticism criticism by Taylor Taylor J. in  Uren v.  John Fairfax & Sons Pty. Ltd., 117 C.L.R. C.L.R. 118. 118. He pointed out that in none of the three old cases on which this category was apparently based, did the decisions turn on the fact that the defendants had acted for the government government.. Surely Surely it is is conduct, not status, that should should determine liability. Power Power to award exemplary damages may be an anomaly,  but I doubt doubt whet whethe herr it is bene benefi fici cial al to the law to see eek k to reduce reduce the area of that anomaly at the price of creating other anomalies and illogicalitie illogicalities. s. Surely Surely it is anomalous anomalous if a person guilty of of oppressive conduct should only be liable to exemplary damages if a servant of the government. In these days there are others than the government who can be guilty of oppressive oppressive conduct. Why Why should should they be be treated differe differently ntly?? I can can find fin d nothing in the three cases to indicate that if the conduct complained of had  been  been by person personss other other than than serva servants nts of the gove govern rnme ment nt,, lia liabi bili lity ty to exemplary damages would have been excluded. Just as the definition of this category might be said to have been obiter to the decision in Rookes v. Barnard [1964] A.C, 1129 1129,, so might might considera tion of of it be be regarded in this case. case. Nevertheless Nevertheless as  Rookes v. Barnard has to be considered in this appeal in consequence of the action taken by the Court of of Appeal, I fee feell I should should express express my opinion opinion which which is that this narrow definition does not appear to me to be justified by the authorities on which it was based. It may also be contended that Lord Devlin's second category is also too

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1109 A.C.

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Broome Broome v. Casscll Casscll & Co. (H.L.(E.)) (H.L.(E .))

Viscount Dilhorne

narrowly drawn, for why should conduct lead to exemplary damages if inspired by the profit motive or some some material material interest, interest, and similar similar conduct due to other motive motivess not do so? But the substantial critic criticism ism that can can be made is that by his categorisation, the previously existing and recognised  powe  powerr to awa award rd exem exempl plar ary y dama damage gess is restric restricted ted.. Lord De Devl vlin in inde indeed ed appreciated the novelty of what he was doing when he said that acceptance of his views would " impose limits not hitherto expressed on such awards " (p. 122 1226) 6).. I do not think that this should should have or could could properly be done. It should should have been left left to the legislature. This conclusion does not, however, mean that the jury's verdict as to liability liability must be interfe interfered red with. It was urged urged that Cassells' decis decision ion to call call no evidence was based on the assumption that  Rookes v.  Barnard  applied  applied and that the issue issue was, was, did the case come come within within the second second category? category? While While it may be that the plainti plaintiff ff would have presented his case differen differently tly but for what was said in Rookes v.  Barnard,  the defendants had to meet the case as presented whether or not  Rookes v.  Barnard   applied, and it was in relation to that case case that they they decide decided d to call no eviden evidence. ce. As the case  prese  presente nted d woul would d prior to  Rookes v.  Barnard,  if established, have justified the award of exemplary damages, I cannot accept that the defendants might have reached a diffe differen rentt decision decision about about calling evidence evidence on the case as   Rookes v. Barnard  had presented if  Rookes  had not been followed. I now turn to the passage in Lord Devlin's speech dealing with the assessment of damages, a passage which, save in the respect to which I have referred, was closely followed by Lawton J. in his summing-up. I think that Salmon L.I., as he then was, correctly summarised the pre Rookes v.  Barnard practice when when he said [1971] 2 Q.B. Q.B. 354, 354, 387-388: 387- 388: "Jud "J udge gess used used to direct juries in libel libel actions that, if they they found found in favour of the  plaintiff,  they should award him a sum which would make it plain to the world that there was no truth in the libel and which, as far as money could do so, would compensate him for the distress, humiliation and annoyance which the libel had caused him. They were also also told in appropriate cases cases that they they could could take the whole of the defendant's conduct into account down to the moment they returned their verdict, and that if they came to the conclusi conclusion on that he had behaved outrageously they might, as a deterrent, reflect their disapproval of the defendant's conduct in the amount of the damages which which they awarded. At the same time time they were always warned to  be fair fair and reason reasonabl ablee and and not to allo allow w them themse selv lves es to be infl inflam amed ed against the defendant but to decide dispassionately what in all the circumstances circumstances would would be a reasonable sum sum to award." awar d."

The summing-up in  Loudon v.  Ryder  [1953] 2 Q.B. 202 which was approved by the Court of Appeal also recognised that outrageous conduct was a ground ground for exemplary exemplary damages. damages. That appears ap pears to be the firs firstt case in which a jury was asked to award separate sums for exemplary and for compensatory damages and in which it was suggested that the amount JJ awarded for exemplary damages was to be regarded as the th e imposition of a fine. In Ley v.  Hamilton,  151 L.T. 360 the Court of Appeal by a majority (Greer and Maugham L.JJ.; Scrutton L.J. dissenting) allowed an appeal

1110 Viscount Dilhorne

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

[1972]

from from a jury' j ury'ss verdict awarding £5,00 £5,000 0 damages for libel, one ground ground for the decision being that the damages awarded were excessive; Maugham L J . saying saying,, at p. 374, 374, that the sum could could not be described described " as a fair and reasonable compensation for the damages which the plaintiff"  had suffered, that the verdict could only be justified on the view that the jury were exercising the right to give vindictive or punitive damages, and that " when the damages in question are really not compensation for an injury sustained by the plainti plaintiff ff but in the nature nat ure of a fine fine inflicte inflicted d B on a defendant," the Court of Appeal would be compelled to interfere. In this House, 153 L.T. 384 Maugham LJ.'s approach was rejected  by Lord Atkin Atkin in a spee speech ch wi with th whic which h Lords Toml Tomlin in,, Thankert Thankerton, on, Macmillan and Wright agreed. Part of the relevant passages of Lord Atkin's speech speech were were cited by Lord Devlin but two sentences which which I italicise and *" which which I regard as important importan t were omitted. The full full passage is as follows, follows, at p. 386: "  The fact is that the criticism" (Maugham LJ.'s) " with great respect seems based upon an incorrect view of the assessment of damages for defamation. They are not arrived at as the Lord Justice seems seems to assume by determining determining the ' r e a l ' damage and adding to D that a sum sum by way of vindictive vindictive or punitive damages. It is precisely  beca  becaus usee the ' rea r eal'l' dama damage ge canno cannott be ascert ascertai aine ned d and esta establ blis ishe hed d that the damages damages are at large. It is impossib impossible le to track the scandal, scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman woman for the insult offe offere red d or the pain of of a false accusation. No g doubt in newspaper libels juries take into account the vast circulations whic which h are justl justly y clai claimed med in present times. times. The 'pun 'p unit itiv ive' e' element element is not something which is or can be added to some known factor which is non-punitive. In particular  it  appears   appears to present no analogy to punishment by fine for the criminal offence of publishing a defamatory libel."  „ V Maug Ma ugha ham m LJ L J . did not in his his judgme judgment nt refer refer to " r e a l " damage damage.. I think it is clear that by " real" damage Lord Atkin meant the damage which the plaintiff had suffered. Yet is not the very process condemned in Ley v. Hamilton that which it was said in Rookes v. Barnard  should   should be followed and that which, pursuant to  Rookes v.  Barnard, wa wass fol follo lowe wed d in this case? Lord Atkin said said that t hat Q for the reasons he gave " real" damage i.e., compensatory damage, could not be ascertained and established. Under   Rookes v.  Barnard  a   a jury is to be directed that that which Lord Atkin said could not be done, is to be done and " compensator compensatory y " damages assess assessed ed first. firs t. The punitive element element is not someth something ing that can be added. Yet in  Rookes v.  Barnard  it  it is said that it should should be added if, if, but only only if, the compensatory damages are „ insuff insuffici icient ent.. Lord Atkin Atkin said that there was was no analogy to punishment  by  by a fine for for a crim crimin inal al libe libel, l, yet foll follo owi wing ng  Rookes v.  Barnard,  juries are to be told that punitive damages amount to a fine. I must confess my

mi A.C.

Broome Broome v. Casscll Casscll & Co. (H.L.(E.)) (H.L.( E.))

Viscount Viscount Dilhorne Dilhorne

inability to reconcile the views of this House as expressed in Ley v. A  Hamilton  with those expressed in  Rookes V.  Barnard. Before  Rookes v.  Barnard   the words words " aggravated," aggravated," " punitive," " exempl exemplary ary " and " retributory " were were used used indiscrimin indiscriminately ately to indicate that the damages awarded might be enhanced and might contain a punitive element. By  Rookes V.  Barnard   precise meanings were attached to the words " aggravated " and " exemplary." exemplary." Lord Devlin Devlin recognised, recognised, at p. 1221, JJ that the jury could take into account account the moti motives ves and conduct of of the defendant where they aggravate the injury to the   plaintiff. He said: " There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters whic which h the the jury jury can take into into account account in assessing the appropriate compensation." Q So where where the injury injury is aggravated aggravated,, an addition can be made to the com com  pensat  pensatory ory damag damages. es. While in some cases it may be evident that malice or misconduct has added to the injury, there may be other cases where, although it is clear that there has been malice and misconduct, it cannot be said that the injury inflicted is any greater than it would have been if there had been no malice or misconduct. In such cases it would would seem seem from from  Rookes v. Barnard   that D the compensatory damages should should not be increased. Nor, Nor, in such such cases would it seem that exemplary damages as there defined could always be awarded for they are only to be awarded if the sum given in compensation is " inadequate to punish for outrageous conduct, to mark the jury's dis approval of of such conduct, conduct, and to deter a repetition." The existence existence of malice may not make the defendant's conduct outrageous, and yet it is, I think, established beyond all doubt that before   Rookes V. Barnard  a   a jury was always entitled to award larger damages than they otherwise would have given if satisfied that the libel was actuated by malice. All the members of the Court of Appeal thought that the   Rookes v.  Barnard   approach was wrong and in conflict with the views expressed in this House in Ley v.  Hamilton. I can find find no escape from from that conclusion conclusion and if the choice now lies between following one or the other of those F decisions, I would would myse myself lf choose to foll follow ow the simpler simpler and more flexibl flexiblee approach in Ley v.  Hamilton. The Court of of Appeal also also thought that there was a conflict with the decision of this House in  E. Hulton & Co. v.  Jones [1910] A.C. 20. While While there are some passages passages in the report of that case which which affo afford rd some some ground ground for that that contention, I do not think that tha t they they suff suffiice to establish that that is so with with any degree of of certainty. certainty. While, if the views I have expressed prevailed, it would not be necessary ^ to disturb the jury's jury 's verdict verdict as to liability liability,, I cannot regard regard a directi direction on to assess damages in accordance with  Rookes v.  Barnard   as a proper direction in accordance with the  pr&-Rookes v.  Barnard   practice and as complying with Ley v. Hamilton. So, if my view view were were to prevail, the verdict given in this case could not be sustained and there would, if there had not  been  been agre agreem emen entt by coun counse sell that this this House House shou should ld in that even eventt asse assess ss the J J damages, have to be a new trial tria l limited limited to the assessment assessment of damages. As my view does not prevail, it is not necessary to express an opinion on what that sum should be if this House had to assess it. For the reasons I have stated, I would allow the appeal.

1112 Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E.) )

[1972]

My Lords, this case case must be accounted, accounted, as in many many respects, an unhappy one. After a trial of seven seventeen teen days before a  judge  judge and and jury, in whic which h the the defend defendant antss ca call lled ed no evid eviden ence ce,, the  plaintiff, Captain Broome, was awarded against author and publishers jointly £40,000 damages in respect of libels contained in the book " The Destruction of Conv Convoy oy PQ17." PQ 17." This total sum sum was awarded awarded by the jury as to £15, £15,000 000 as " compen com pensat sator ory" y" damages damages and as to £25,000 £25,000 as " punitive punitive " damages. Captain Broome Broome wa wass awarded awarded his costs of the trial. trial . An appeal was was taken taken to the Court of of Appeal by by both defendants. The substantial substantial points for argument were two: (1) (1) whether the summing-up summing-up was defective as regards the circumstances in which punitive damages may  be giv given in additi addition on to comp compen ensa sato tory ry dama damage gess (2) (2) whet whethe herr the the dama damage gess awarded were excessive. excessive. There was also a question as to whether a separate separat e award should have been been made against against each defendant. Since Since the passages in the book principally complained complained of refle reflecte cted d upon the conduct of of offic officer erss of the Royal Navy, in combat conditions, there was an obvious danger that the jury may have become inflame inflamed. d. This made it particularly particularly necessary that there should be a dispassionate and cool review of the sums awarded and of the summing-up in the Court of Appeal. If matters had taken their proper and normal course, these matters should have been been disposed of within a few few days— days—by by dismissal dismissal of of the t he appeal or or  by an order for for a new new trial, and and no ques questi tion on of appe appeal al to this House woul would d have arisen. This did not happen. The trial had been been conducted conducted properly, and inevi inevi tably upon the basis that the law to be applied as regards any claim for  puniti  punitive ve dama damage gess was was that state stated d by this this House House in Rookes v.  v . Barnard  [1964]   [1964] A.C.  1129. 1129. The learned judge considered considered that that he was bound by what was said said in this House, as he clea clearly rly was. was. But in the Court of Appeal argument was admitted to the effect that  Rookes v.  Barnard,  on punitive damages, was wrong wrong and should should not be b e followe followed: d: the Court of Appeal so decided, and three three judgments, separate separate exercises in forc forcefu efull advocacy, were were delivered delivered giving their reasons. The course permitted permitted and taken was was doubly surprising. surprising. First, there wa wass nothing new about  Rookes v.  Barnard. It was decided decided in 1964: 1964: it had  been  been foll follow oweed and and appl applie ied d in Engl Englan and d by the Court Court of Appeal Appeal its itself three three times since then in, amongst amongst other others, s, libel cases cases without diffic difficult ulty y or prot protest est  by any any of the Lords Justic Justices es invo involv lved ed.. Se Seco cond ndly ly,, it wa was, s, on the vie view of the facts which the Court of Appeal took, unnecessary for the decision of the appeal to decide whether   Rookes v. Barnard   on punitive damages was right or wrong. wrong. The Court of Appeal, having having held held that it was wrong wrong,, still still dismisse dismissed d the appeal, and in an alternative alternativ e passage passage held held that the same result followed if it was right. The consequence consequencess for the present litigants have been heavy. An appeal has been been brought here and argued argued for thirteen days. Counsel Counsel for the appel lants were forced forced into the necessity necessity of arguing at length that tha t  Rookes v.  Barnard  is   is right, and this argument was answered on the respondent's side. A mountain of costs has piled piled up and it is as well well that the th e siz sizee of of this should should  be.  be. understood: understood : it is open open on the record. record. As shown shown by the order of the Court of Appeal, Appeal, the plaintiff's plaintiff's costs at the trial tria l have been taxed taxed at £22,000. £22,000. His costs as asses assesse sed d in the Court of Appeal are £7,000. £7,000. His costs in this LORD WILBERFORCE.

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1113 A.C.

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Broome v. Cassell Cassell & Co. (H.L.(E. (H. L.(E.)) ))

Lord Wilberforce

House must exceed this figure. The taxed costs of the defendants are unlikely unlikely to be less: there will will be further solicitor and own client costs on either side. It may not be unfair to put the aggregate aggregate bill, which which an un un succes successfu sfull party party may have to bear, at more than £60,000. £60,000. It would would be entirely unfair to suggest suggest that the the whole, or even even half half this sum, is due to the course taken in the Court of Appeal—the greater part flows from the inherent inherent nature nature of our system. system. But it is necess necessary ary to say say that in a legal system system so extravagant extravagant and punitive as to costs as ours is in civil civil cases, cases, and  partic  particula ularly rly libe libell act action ions, s, the additi addition on of furt furthe herr burdens burdens,, and and here here they they were were certainly considerable, carries carries the result further further into an unacceptable unacceptable area of injustice. England has not the equivalent equivalent of of the New New South Wales Wales Suitors Fund Act 1951 nor of the Victoria Appeal Costs Fund Act 1964, so when when the machinery creaks it is the private litigants who who pay. I have felt deep concern about this throughout the hearing. My Lords, Lords , observations have already already been been made on other constitutional constitutional aspects of of the Court Court of of Appeal' Appeal'ss judgments. I concur concur entirely entirely wit with h what has been said, and the fact that for reasons of space I abstain from using my own words does not mean that my concurrence is any the less wholehearted. I proceed to the principal task we have, which is to decide the present appeal appeal.. Befo Before re exam examin inin ing g the summ summin ingg-up up,, on which ich the jury's verd verdic ictt wass based, it wa it is necessa necessary ry to establish the law. This involves involves some some re examination of those parts of the decision in   Rookes v.  Barnard   [1964] A.C.  1129 which relate to punitive damages. I shall consider   Rookes v.  Barnard under three heads. heads. First, as to to the analysis it contains of damages in in tort cases: cases: secondly, secondly, as to defamation actions in relation to Lord Devlin's second category—both of these being directly relevant to the present present case: thirdly, and briefly, briefly, as to the first first and second categories, their inclusions and exclusions. I deal first with that portion of the judgment which analyses damages in tort cases into " compensatory " damages, a subhead of which which is said said to  be " aggra aggrava vate ted d " dama damage gess and and puniti punitive ve damag damages es,, beca becaus usee I thin think k that this this has been largely misunderstood—a misunderstanding which has fatally entered entered into the present case. case. The judgment points out that in the reported English authorities, over some two hundred years, there is no clear terminology used; aggravated, exemplary, punitive, vindictive, retributory being adjectives which have been used, sing singly ly or in combination, without distinction or differ differenc ence. e. Then it is suggested that in future there should be a clear and conscious distinction  betw  betwee een n compens compensato atory/a ry/aggr ggrava avated ted and and puni puniti tive ve (or (or exem exempl plar ary) y) dama damage ges, s, the former reflecting reflecting what the plaintif plaintifff has suff suffere ered d materially materially or in wounded feelings, the latter the jury's (or judge's) views of the defendant's conduct. The statement of categories, in in which which alone punitive damage damagess may  be giv given en,, foll follow owss from from this. this. This analysis is powerful and illuminating and undoubtedly represents a valuable contribution to English judicial thought on the subject* but it has its dangers in in practical practical application, as the present case case only only too wel welll shows. shows. * cf. in the United States Fay v .  Parker   (1873) 53 N.H. 342-397 per   Foster J.: and as to textbook discussion,   Mayne and Macgregor on Damages,   12th ed. (1961): Streets Principles of the Law of Damages (1962)

1114 Lord Lord Wilberf Wilberforce orce

Broome Broome v. Casscll Casscll & Co. (HX. (H X.(E (E.) .)))

[1972]

English law does not work in an analytical fashion; it has simply entrusted the fixing of damages to juries upon the basis of sensible, untheoretical directions by the judge with the residual check of appeals in the case of exorbitant verdicts. That is why why the terminol terminology ogy used is empirical empirical and not scientific scientific.. And there is is more than merely practical practical justification justification for this attitude. attit ude. For particularly over the range of torts tor ts for for whic which h punitive punitive damages may be given (trespass to person or property, false imprison ment and defamation being being the commonest) commonest) there there is much to be said B  befo  before re one one ca can n safel fely assert assert that the the true or basic basic principle principle of the law law of damages in tort is compensation, or, if it is, what the compensation is for (if (if one says that that a plaintif plaintifff is given given compensation compensation  because  he has been injured, one is really denying the word its true meaning) or, if there is compensation, whether there is not in all cases, or at least in some, of which defamation may be an example, also a delictual element which con templates templates some some penalty for the defendant. It cannot lightly lightly be taken taken for C granted, even as a matter of theory, that the purpose of the law of tort is compensation, still less that it ought to be, an issue of large social import, or that there is something inappropriate or illogical or anomalous (a question-begging word) in including a punitive element in civil damages, or, conversely, that the criminal law, rather than the civil law, is in these cases cases the better instrument for convey conveying ing social social disapproval, or for for re- j ) dressing a wrong to the social fabric, or that damages in any case can be  broken  broken down down into into the two separa separate te elem elemen ents ts.. As a matter matter of practi practice ce English law has not committed committed itself itself to any of these theories theories:: it may have  been  been wis wiser er than it kne knew. w. This is not the place to argue out the general case for or against  puniti  punitive ve damage damagess in Engl Englis ish h law. law. The exis existe tenc ncee of the princip principle le has its convinc convinced ed opponents, particularly, I understand, in Scotland. Scotland. The argu- E ments against it—that it is an " anomaly," that it brings a criminal element into the civil law without adequate safeguards, that it leads to excessive awards, an unmerited windfall for the  plaintiff;  these and others are by now now well known: they, and and the counter-arguments counter-arguments are well well summe summed d up in Professor Street's  Principles  of the Law of   Damages  (1962), pp. 33-34. Perhaps the opponents opponents have, marginally, marginally, the best best of it in logic, logic, but logic in p excess has never been the vice of English law and I am impressed, as I  con think was Lord Devlin, with the fact that the principle has shown, and  con tinues to show,  its vitality not only in England but in Australia, Canada and New Zealand, as well (though there are special considerations there) as in the United United States of America. America. This is show shown n not only only by reported cases. of which Canadian Provinces, Australian States and New Zealand provide a number of modern modern exampl e xamples!, es!, but in the daily unreported practice of of G the courts. courts . Its It s place place in the th e law law has been endorsed by many many eminent eminent judges in terms which which clearly recognise recognise the punitive element. The principle principle of  punitiv  punitivee dama damage gess has has been been reco recogn gnis ised ed by the High High Court Court of Australi Australiaa on five occasions, by the Supreme Court of Canada and by the Supreme Court of the United States of America. To my mind mind the strongest strongest argument against against it is that English law H already contains a heavy, indeed exorbitant, punitive element in its costs t See, as to Canada Canada,, 48 Canadian Canadian Bar Review (1970) p. p. 373.

1115 A.C.

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Broome v. Cassell Cassell & Co. (H.L.(E.) (H.L .(E.)))

Lord Lord Wilberforc Wilberforcee

system; contrast the United States where it is the absence of this (advocate's costs not being normally recoverable) which is invoked as a justification justification for  puniti  punitive ve dama damages ges.. One One or other must clear clearly ly be refor reforme med, d, and and it is Parlia Parlia ment alone that can do it. I take the discussio discussion n one step further, further, because the the point is very very relevant distinction ion is made made betw between een aggravated aggravated here. In Lord Devlin's opinion the distinct damages and punitive damages; it is said that many of the authorities are really really cases of aggravated aggravated damages damages though though other word wordss are used, used, that apart apa rt from the exceptional cases included in the three categories, aggravated damages are the appropriate appropr iate and suf suffi fici cien entt remedy. Although I doubt very much whether all the cases can be explained in this way—to do so seems to attrib a ttribute ute a high degree of confusi confusion on of thought or inaccuracy of ex  pres  pressi sion on to judg judges es of emin eminen ence ce—t —the here re is attracti attraction on in the disti distinct nctio ion. n. It has the advantage, to some minds, of reducing the area of " punitive " damages, and and of of bringing bringing the remedy remedy nearer to " compensation." But closer examination causes one to doubt whether the separation, otherwise than than in analysis, of compensatory compensatory from punitive damages does not involve involve some real danger in practice. As Windeye Windeyerr J. said in in  Uren v.  John Fairfax & Son Pty., 117 C.L.R. 118,152: " What the House of Lords has now done is, . . . to produce a more distinct terminolog terminology. y. Limiting Limiting the scope scope of terms that ofte often n were not distinguished in application makes possible an  apparently firm dis tinction  between aggravated compensatory damages and exemplary or punitive damages, How far the differ different ent labels denote concepts really differe different nt in effe effect ct may be debatabl deba table. e. I suspect that tha t in seeking seeking to preserve the distinction we shall sometimes find ourselves dealing more more in in words words than than ideas."

(cf.  Salmond on Torts,   15th ed. (1969), which maintains the old "con fusion.") The distinction distinction does not in my my beli belief ef greatly greatly correspond to what what happens in reality, Take a common common ca case se:: a man is assaulted, or his land is trespassed upon, with accompanying circumstances of insolence or con tumely. tumely. He decides to bring bring an action action for for damages, he need not further „ specif specify y the th e claim. Is he suing for compensation, for injury to his feelings, feelings, to teach his opponent a lesson, to vindicate his rights, or "the strength of the law," law, " or for a mixture of of these things? things? Most men would would not ask themselves themselves such questions, many men could not answer them. If they could answer answer them, they might give give differe different nt answers. The reaction to a libel libel may be anything from from " how how outrageous " to " he has delivere delivered d hims himsel elff into my hands. hand s."" The fact fact is that the pla plain inti tiff ff sues for damages, G inviting inviting the the court to take all the facts facts into consideration, and, if he wins, wins, he may ascribe his victory to all or any of the ingredients. As,  again Windeyer J. has said, at p. 150, " the amount of a verdict is the product of of a mixture of inextricable inextricable considerations." considerations. " Se Sedg dgwi wick ck  Damages, 3rd ed. (1858) ) said: {Measure of  Damages, "Where either of these elements [sc, malice, oppression etc.] mingle in the controversy, controversy, the law, instead instead of adhering to the system, system, or even even JJ the language of compensation adopts a wholly wholly differen differentt rule. rule . It  permits  permits the jury to give give what what it terms terms punitiv punitive, e, vind vindic icti tive ve or exemp exempla lary ry damages, in other words, it  blends  together  the   the interests of society and

1116 Lord Wilberforc Wilberforcee

Broome v. Casscll & Co. (H.L.(E (H. L.(E.)) .))

[1972]

of the aggrieved individual and gives damages not only to recompense the suffer sufferer er but but to punish the the offe offende nder. r. This rule . . . seems settled in Englan England d and in in the genera generall jurispr jurisprudence udence of of [the U.S. U. S.A. A.]. ]."" Lord Atkin said just this in Ley v.  Hamilton,   153 L.T. 384 in a passage (cited in other opinions, vide that of Viscount Dilhorne) which, if any in modern modern times, is clear and authoritative. authoritative . Dixon Dixon C.J. endorsed endorsed the principle principle  —s  —see cit citati ation on bel below—a ow—ass did did the key key pass passag agee in in Halsbury's Laws of  England,  England, cited ed by by Lord Lord Hailsham of of St. Marylebone Marylebone L.C. To segresegre- B vol.  vol.  11, p. 223, cit gate the punitive element is to split the indivisible and to invite the stock criticism (vide  Street  loc.   loc. cit.) that civil courts have no business to impose fines. This is is of of critical importance in in practice. If the separation separation of of damages into compensatory/aggravated and punitive is carried through into the instruction to the jury, there is the greatest possible risk of excessive awards, Q through counting twice what is but a different facet of the same bad conduct. Lord Devlin himself clearly understood this; the careful passage on p. 1232, containing the "if, but only only if," if," prescription, prescription, provided his his antidote—an effe effect ctiv ivee one if judges can administer administer it in a timely and effec effecti tive ve way. My Lords, I think there was much merit in what I understand was the older system, before  Rookes v.  Barnard  [1964] A.C. A. C. 1129 1129.. I agree with with the Court of of Appeal that in substance, substance, though not not perhaps philosoph philosophicall ically y D or linguistically, this was clear and as explained above I doubt if there was any conf confusi usion on as to what the jury should should do. It wa wass to to direct direct the jury in in general terms to give a single sum taking the various elements, or such of them as might exist in the case, into account including the wounded feelings of the the plaint plaintif ifff and the conduct of the defendant, but warning them not to double count and to be moderate. A formul formulaa on these these lines lines comm commend ended  ed  p itself to Dixon J. in  Smith's  Newspapers  Ltd. v.  Becker  (1932)   (1932) 47 C.L.R. 300. What amount of of damages, he asked, " is enough to serve at once 279,  300. as a solatium, vindication and compensation to him and a requital to the wrongdoer." An earlier exampl examplee is the direction direction of of Abbott J. in  Sears V.  Lyons  (1818 (1818)) 2 Stark. 317: as evidenc evidencee that modern practice corresponds I could not desire more than the passage, based on considerable experience, in the judgment of Salmon Salmon L.J. "in this case case [1971] 2 Q.B. 354, 354, 387-388 F cited cit ed in full full by Viscount Dilhorne and which which I need not repeat. repeat. If judges were to act in this way, and direct substantially as Salmon L.J. describes, I would would see no basis for ascribing to them any error err or in law. If, If, on the the other hand, use were to be made of the aggravated-punitive distinction, I would think that it is even more necessary that the jury should be directed to give a single sum (Lord Devlin's exception to avoid a new trial is entirely laudrespectfully think, risky). The direction to giv givee a sing single le sum ® able,  able,  but, I respectfully should mean (the necessity to say this illustrates again the dangers of the terminology) not merely producing a single figure by way of verdict, but arriving in their discussi discussion on at a single single sum. It would would be wrong, wrong, and a novelty in the law, that they should, in the jury room, find separately the various elements—pure compensation, aggravated compensation and penalty and add them up to to a total. In no previous previous cited cited case, case, except except in Loudon J J v.  Ryder  [1953] 2 Q.B. 202 202 (overruled (overruled by Lord Devlin himsel himself), f), was this done; it was directly discountenanced by Lord Atkin in Ley v. Hamilton, 153L.T. 153L. T. 384. 384.

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1117 Broo Broome me v. Cassel Casselll & Co. (H.L.(E.))  A.C. Lord Wilberforce I regret that this rather lengthy analysis has been necessary before I deal with wi th the present present appeal: appe al: but in my view view it is fundamental fundamental to a considerati consideration on of the summing-up. The full account of the trial which has been given in previous opinions enables me to summarise. The critical stages stages were these (page (page references references are to the appeal record appendix, part II) of the printed case in the House of Lords: (1) (1) The jury were told that there were two aspects of damages, com  pensat  pensator ory y and and puniti punitive. ve. They They we were re aske asked d firs firstt to cons consid ider er comp compen ensa sato tory ry damages. They had read to them a passage passage from from the judgment judgment of of Pearson L.J. in McCarey V.  V. Associated  Newspapers Q.B. 86  Newspapers  Ltd. [No. 2) [1965] 2 Q.B. in which it was said in clear terms that if there had been any high-handed, oppressive or contumelious behaviour which increased the mental pain and suffering caused by the defamation, this might be taken into account (pp. 91-93). (2) The judge then pointed out that Captain Broome had suffered no actual pecuniary loss: that he had not been shunne shunned d by his comrades: that the trial had been been conducted conducted without without exacerbation: exacerbation: but that what was said in the book might be very wounding to his feelings (pp. 93-98). (3) The learned judge then dealt with punitive damages by reference to the second second category in  Rookes v.  Barnard,  cited the words of Widgery J. in  Manson v. Associated Newspapers Ltd. [1965] 1 W.L.R. 1038 038 and said: " You are being asked here not only to give Captain Broome compen satory damages, that is, a reasonable sum for the injury to his reputation and the exacerbation of his feelings; but  in addition to fine   Cassells and Mr. Irving for having having done what they have have done . . . You are really in the position of a judge or a magistrate trying a criminal case;  you have got, so to speak, to fine the defendant " (p. 101) 101) (emphasis supplied)

and he gives examples of reasonable and unreasonable fines. Later he gives lengthy directions relevant to the second category (was there a calculation P to profit profit etc.) etc.) and on the next next day returns finally fina lly to damages damages (p. 137) 137).. (4) The final direction as to damages consisted of the statement of ques tions for for the jury and explanation explanation of them. The first firs t question question (No. 3) is " What compensatory damages do you you award the plaintif plaintiff? f? " The sum sum ming-up continues: " Then having decided what are the proper additional (sic) compensa _ tory tory dama damage gess you you will go on and and cons consid ider er the fourth fourth quest question ion,, name namely ly,, ' Has Ha s the plain plainti tiff ff proved proved that th at he is entitled entitled to exemplary exemplary damages? ' " and directs the jury to consider this in relation separately to each defendant. Lastly Lastly there is this passage: " Then you see the last question under this heading, ' What additional sum sum should should be awarded him by by way way of exemplary damages? ' Would Would JJ you you be good good enough enough to underline underline the word word ' additional,' because I want want to know, and learned counsel want to know, if you do decide to award  punit  punitive ive damage damages, s, how how much much more more do you you aw awar ard d over over and and abov abovee the compensatory damage."

1118 Lord Lord Wilberforc Wilberforcee

Broome Broome v. Cassell & Co. (H.L.(E. (H.L .(E.)) ))

[1972]

The result of this was an award of £15,000 compensatory damages and £25,000 as an additional sum for exemplary damages. My Lords, I regret to have reached the conclusion that this verdict ought not to stand. Apart Apar t from from the reasons reasons giv given en by by my my noble and learned learned friend, friend, Lord Diplock, with whic which h I respectf respectfully ully agree, I think for mysel myselff that the separation of the element of compensatory damages from that of punitive damages, brought about through the interpretation placed on the second category category and the application of it, involving, involving, as it did, the the need to fix comcom pens  pensat atio ion n (plu (pluss aggr aggrav avat atio ion) n) firs first, t, see if if the the ca case se ca came me withi within n the ca cate tego gory ry,, and then fi fix a separate punitive sum, is fundamentally fundamentally wrong. It has  brough  broughtt about about prec precis isel ely y the the result result which hich wa wass to be fear feared ed from from breaki breaking ng down the indivisible whole, namely, of fixing a compensation figure swollen  by aggra aggrava vati tion on and and then then addi adding ng a fine on top—a top—a fi fine in this this case case excee exceedi ding ng greatly greatly the aggravate aggravated d compensation. compensation. If the matter matter rested on the figures figu res alone, I should find find the greatest diff diffic icul ulty ty in supporting, even with with all the inhibitions properly felt against substituting a judicial opinion for that of the jury, so large a punitive element, particularly in a case such as this where the libel was considered to be (I say nothing as to my own opinion) of a most wounding character, so that the " compensatory " damages must necessari necessarily ly include a large " punitive " element. element. But when when it is seen seen how the jury were direct directed ed to calculate, calculate, and and the direction was was certain certainly ly clear and certainly and visibly acted on, their figures become impossible to accept. In argument the issue was put in the form whether the judge's direction complied complied with Lord Devlin's Devlin's " if, if, but only if," if," advice (p. 1228). 1228). I think that it certainly certainly did did not. The dangers of of separating the compartments (compen satory damages and punitive damages) in so watertight a way are so great, as I have tried to explain, indeed, in my opinion, so wrong in principle that 1 doubt very much whether whether any instructions, in a dif diffi ficu cult lt case, could avoid avoid them. That is why why I think that any any interpretation placed placed on  Rookes v.  Barnard  which  which requires this separation, or authorises it, and the introduction of the profit profit gateway gateway which which almost almost compels compels it, ought to be discarded. But  be, the directions given fall far short of what was necessary however that may be,  —I say this this wi with thou outt any any crit critic icis ism m of the lear learne ned d judg judgee who was mere merely ly following Rookes v. Barnard  as previously previously applied by by the Court of of Appeal, Appeal , When all is said, the warning to the jury against the danger was contained in the word word " addi ad diti tion onal al"" in question question 4. I think this wa wass not enough enough,, for for they had been told that they could inflict a fine. For these reasons, without committing myself to any particular figure if we were called upon to substitute one, I agree with the conclusion of my noble and learned friend, Lord Diplock, as to the necessity for a new trial on the question of punitive damages. I must add one other other point. This is the question question of of a joint joint award award of damage damagess against against tw two o wrongdoe wrongdoers, rs, publisher publisher and author. There is no doubt that the existing law is ill adapted to deal fairly with a case where " guilt" of joint defendants defendants is unequal. unequal. But it is clear clear enough enough what what the law law is: it is is stated by Lord Hailsham of St. Marylebone L.C. in terms which I need not repeat. In the Court of of Appeal Lord Denning Denning M.R. said said that the jury were were free to decide whether to fix punitive damages at the highest figure, the lowest figure, or at a figure between the two and I fear that the jury may well have proceeded proceeded on this somew somewhat hat libertarian liber tarian view of the t he law. law. One may

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Broome v. Cassell & Co. (H.L.(E (H. L.(E.)) .))

Lord Lord Wilberfor Wilberforce ce

escape from the conclusion that this vitiates the verdict by assuming that the tw two o defendants defendants were were equally equally "gu " guil ilty ty," ," but I am not prepared to make this assumption assumption or to ascribe a view view to that effe effect ct to the jury. I think that the jury must have been, at best, confused, at worst misled by the direction, and I cannot accept that acquiescence by counsel validates the defect. I must now deal as briefly as I can with other aspects of the judgment in  Rookes v.  Barnard. I deal first first with with its eff effec ectt on the law of damages for defamation. I am far from convinced that Lord Devlin ever intended to alter the law as to damages for defamation or intended to limit punitive damages in defamation defamation actions to cases where where a " profit profit motive " is shown. shown. (I use use diis diis compendiously for the formula in his second second category.) I summarise summarise the reasons: (a)  Defamation is normally thought of as par excellence the tort when punitive damages damages may may be claimed. claimed. It was so presented presented in argument by counsel for for the respondent respondent (arguing against punitive damages) and he was an acknowl acknowledge edged d expert e xpert in the subject. subject. Every practitioner and a nd ever every y judge judge would take this view. (b) Lord Devlin's passage where where he sets up his second second cate category gory does not refer refer to any any defamati defamation on case, but to three three other miscellaneous miscellaneous cases cases which which he illuminatingly illuminatingly bases in the profi profitt motive, He makes merely merely an incidental reference to libel where he says the profit motive is always a  factor,  factor, not, it should be observed, a  condition. (c) It is dif diffi ficu cult lt to believe that that Lord Lor d Devlin Devlin was intending to limit the scope of of punitive punitive damages in defamation actions so as to exclude highly malicious malicious or irresponsible libels. libels. At least if if he intended intended to do so at a time when when the media of communication are more mor e powerful powerful than they have ever been been and certainly certainly not motivated motivated only by a desire to make money, money, and since elsewhere the judgment shows him conscious of the need to sanction the irresponsible, malicious or oppressive use of power, I would have expected some reasons to be given. If we cannot interpret his judgment as leaving libel outside category 2 as a separate case, well known to everyone, in which punitive damages may be give given n in fami famili liar ar circ circum umst stan ance cess and and as statin stating g categ categor ory y 2 as a qual qualif ific icat atio ion n for other cases, hitherto not explained or rationalised, then since the dis  posal  posal of defa defama mati tion on act actio ions ns wa wass there dealt dealt wi with th brie briefl fly, y, I woul would d say say incidentally, and obiter, I consider that in this case where we are directly concerned with such an action we should disagree with it. This would leave the law as I understand it to be in Australia and Canada, countries where, in this respect, there is not known to me to be any such differen difference ce in " social conditions " as to call for the recognition,  by this this House, House, judic judicial ially ly,, of a dive diverg rgen entt law. law. If chan change gess are to be made, made, they should be made, after proper investigation, by Parliament. I would add, with reference to this point, that the present case well illustrates illustrates the irrationality irrationalit y of of the supposed supposed new new principle. For if if the profit profit motive is essential for the recovery of punitive damages, one would expect the damages giv given en to bear some some relation to the suppose supposed d profit profit and/ an d/or or to the means of of the offender: offender: the idea (if (if there there is any logic logic in the requirement) must be to take the profit profit out of wrongdoi wrongdoing. ng. Yet there was not, and and in many such cases cannot be, any real consideration of the likely profit or of

1120 Lord Lord Wilber Wilberfo force rce Broo Broome me v. Cassel Casselll & Co. (H.L.(E.)) (H.L.(E.)) [197 [1972] 2] the offende offender's r's means. There was no evidenc evidencee what these might might be and the  jury  jury we were re give given n no guid guidanc ance. e. How, How, then, then, coul could d the the puniti punitive ve £25, £25,00 000 0 be other than an arbitrary guess? guess? If one one replies replies that itit represents represents the jury's view of the defendants' conduct (as it probably did) what purpose is served  by int introd roduci ucing ng the pro profi fitt moti motive ve gat gatew eway ay?? Finally, as to other torts as to which, before Rookes v. Barnard, punitive damages could be given but on which some restriction is evidently intended to be place placed d by the judgment. That this House, as a matter of of law, or of of legal policy, was entitled to restrict the scope of punitive damages I have, with all respect to the Court of Appeal, no doubt and, whatever my own reservations as to the wisdo wisdom m of the policy, policy, I should feel feel myse myself lf obliged obliged to accept a new statement of principle if it were clear, consistent and workable and and intelligib intelligibly ly related to the main stream of authority. authority. That That it was not entirely clear, appears well enough from the opinions in the present case: and I cannot entirely entirely blame blame the Court of Appeal Appeal for for attempting to escape from it, just as one may sympathise with a customer when he finds his new suit almost at once requiring alteration, or patching, for putting it aside and reaching for his old old tweeds. There There is not perhaps much diffic difficul ulty ty about category category 1: it is is wel welll based based on the cases and on a principle stated in  if   public officers wi will ll infri infringe nge men's men' s rights, they ought to pay 1703—" if  greater damages than other men to deter and hinder others from the like offences":  Ashby v.  White  (1703) 2 Ld.Raym. 938, 956 per   Holt C.J. Excessive and insolent use of power is certainly something against which citizens citizens require as much much protection today: a wide wide interpretation of of " govern gov ernme ment" nt" whic which h I understand your Lordships to endorse would would correspond with Holt C.J.'s " public officers " and would partly correspond with with modern modern needs. There woul would d remain, even even on the most most liberal inter  pretatio  pretation, n, a numbe numberr of diffi ifficu cult ltiies and and inco incons nsis iste tenc ncie iess as poin pointe ted d out by Taylor J. in  Uren v. John Fairfax & Sons Pty. Ltd.,  117 C.L.R. 118.

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I have more diff diffic icul ulty ty with the commonplace commonplace types of trespass or o r assault assa ult accompanied by insult or contumely, which, even more than " first cate gory " cases touch the life of ordinary men and occupy the county courts. Although Lord Devlin studiously refrains from overruling earlier cases (other than  Loudon v.  Ryder  [1963] 2 Q.B. 202) 202) which which undoubtedly p  proc  procee eede ded d on, on, or cont contai ained ned,, a punit punitiv ivee elem elemen ent, t, his his opin opinio ion n has been been understood as laying down that in future such cases cannot, unless the " profit motive " is present, be treated as cases for punitive damages but only only as cases cases for for aggravated aggravated damages. The phrase used used has been been " aggravat aggravated ed damages damages can do the work of punitive damages." dama ges." I understand that a majority of your Lordships, for possibly differing reasons, are satisfi satisfied ed with this, so it wil willl remain the law in this country. But, G if only in fairness to the Court of Appeal with whose approach to this matter I agree, I must state very briefly why I feel some difficulty. I am far from clear how juries, or judges, are intended to act in the future. Are they they to take it that the law law has been been changed, so so that (absent (absent a profi profitt motive) motive) onl only y " compen com pensa sator tory" y" damages damages can be given given,, plus an element element for " aggravation aggravation " if that is proved? I fear that there will will be J J difficulty in seeing how far earlier cases, or Commonwealth cases, are now authority and that there will be much argument whether a particular case was one of " aggravated " or " punitive " damages or of  both.  both.  Alternatively,

1121 A.C.

Broome v. Cassell Cassell & Co. (H.L.(E. (H.L .(E.)) ))

Lord Wilberforc Wilberforcee

if " aggravated damages " are " to do the work of punitive damages " and if it is to be supposed that juries, or judges, will continue giving damages much as before, then nothing has been gained by changing the label and we are indulgi indulging ng in make bel belie ieff and encouraging encouraging fictio fic tional nal pleading. The whole point is well brought out by Pearson L.J. in McCarey v.  Associated  Newspapers Ltd. (No. 2) [1965] 2 Q.B. Q.B. 86, 86, 105. 105. If the compensatory compensatory  princi  principle ple is accepte accepted, d, punitive punitive dam damag ages es must must not be allo allowe wed d " to creep creep back back B into the assessment assessment in some some other guise," guise, " I must must conf confess ess to sympath sympathy y with the Court of Appeal's preference for the older system and with the objections to the new stated by Taylor J. in  Uren's case, the weight of which clearly impresse impressed d the t he Privy Council. Their validity has been endorsed by cases cases  post-Rookes v.  Barnard in Australia, Canada and and New New Zealand. I share their doubt whether we have yet arrived at a viable substitute. But I note with satisfaction and agreement the opinion expressed by the C noble and learned lord on the Woolsac Woolsack k that the relevant relevant passage passage in in Lord Devlin's judgment, which he cites, should be read sensibly as a whole together with the authorities on whic which h it is based. This may provide a sound sound basis for redevelopment redevelopment of the law. law. My Lords, on all other points not expressly dealt with in this opinion I wish to express my concurrence with that of Lord Hailsham of St.  j)  j ) Maryle Marylebon bonee L.C. L.C. I regre regrett to dif differ fer fro from him him in thinki thinking ng that the appeal appeal should be allowed on the grounds I have stated. My Lords, Lord s, the trial of this action action proceeded, proceeded, correctly, on the basis that as respects the measure of the damages which the jury might award, the judge was bound to direct them in accordance with the law as laid down by this House in Lord Devlin's speech in  Rookes V. E  Barnard  [1964]  [1964] A.C. 1129. 1129. I agree with all your Lordships that there was material upon which the  jury were were entit entitled led to find that the condu conduct ct of each of of the defend defendant antss brought brought the case within Lord Devlin's second category of cases in which exemplary or, as I would have preferred to call them, punitive damages may be awarded. awarded. The jury did so find by specia speciall verdicts. verdicts. That part of the  p judge's summ summin ingg-up up in whic which h he direc directed ted them them as to the matters matters for for their their consideration in arriving at their findings on this issue as respects each of the defendants cannot be faulted. It was, however, also incumbent upon the judge to instruct the jury as to the measure of the damages which they might award if they reached the conclusion that the case as against each of the defendants was one in which they were not precluded from from awarding punitive damages. damages. On this aspect O of the case there were two two principles of of law which which should should have been been stated clearly clearly to the jury. jury . Neither was self-ev self-eviden ident. t. The first was that, even if the jury found that the case came within Lord Devlin's second category and that the defendants' conduct merited punish ment, it did not necessarily follow that they must award as damages to the  plai  plaint ntif ifff a greater greater sum sum than wa wass suffic ficien ient to compen compensat satee him him for for all the U harm and humiliation that t hat he had suf suffe fere red d as a consequence of of the defend defend rtious acts. They should should take into account account as part of the punishmen punishmentt ants' to ants' tortious inflicted inflicted on the defendants defendant s any sum sum (in the result £15,000) which which they were minded to award to the plaintif plaintifff as compensatory damages; damages; and only if if they LORD DIPLOCK.

1122 Lord Lord Diplock

Broome Broome v. Cassel Casselll & Co. (H.L.(E.))

[1972] [197 2]

thought that sum to be inadequate in itself to constitute sufficient punish ment were they to award such additional sum as would, when added to the compensatory damages, amount to an appropriate penalty for the defendants' improper conduct. The second was that if the jury thought that the conduct of one of the  joint  joint defen defendan dants ts dese deserv rved ed to be pena penali lise sed d by a less lesser er sum sum than than the conduct conduct of the other, the most that the jury were entitled to award against the defendants was that that lesser sum, sum, if it were to exceed exceed the amount which which they were minded to award as compensatory damages. I have the misfortune to differ from the majority of your Lordships in that I find it impossible to discover in the language of the summing-up any clear statement of of either of these principles. principles. At best I think that when the  jury  jury retir retired ed they they must must have been been conf confu used sed as to how the puniti punitive ve damages damages,, if any, were to be assessed. assessed. At worst I think that they they may well well have have thought that tha t they were to arrive at a sum which which they thought was an appropriate penalty for the defendants' conduct and to add it to any sum awarded as compensatory damages. My Lords, I do not think that on this vital question of the assessment of exemplary damages the jury were were adequately directed. I am forti fortifie fied d in this view by my conviction that, if properly directed, no reasonable jury could could possibl possibly y have reached reached the conclu conclusion sion that the appropriate appro priate penalty to inflict on the less culpable of the defendants was £40,000 for publishing a libel of which the victim was in their view adequately recompensed at £15,000 for all the harm and humiliation that it had caused to him. A penalty of £40,000 is, I believe, very much larger than any of your Lordships would have thought it appropriate to inflict upon the defendants. I doubt if any of your Lordships would have hesitated to interfere with it if  it had been been awarded by a judge sitting sitting alone. He would would have been been vulnervulnerable because because he woul would d have give given n his reasons. Shibboleths Shibboleths apart, there survive to-day two valid reasons why an appellate court should be more reluctant to disturb an assessment of damages by a jury than an assessment  by a judge. judge. The fir first is app appli licab cable le to all kind kindss of actions. actions. It is that a judge judge articulates his findings on the evidence and his reasoning, whereas a jury state the result of their find findin ings gs and their reasoning reasoning but otherwise otherwise are of damages by a jury is excessive excessive dumb. In considering whether an award of an appellate court cannot do other than assume that the jury made every finding of fact and drew every inference that was open to it on the evidence as favourably as possible to the plain plainti tiff ff and as adversely as possible to to the defendant defendant.. In the instant case, howeve however, r, this handicap to an appellate court' cou rt'ss ability ability to do justice is palliated palliated by the facts: fact s: that there was no no con con flict flict of of evidence for them to resol resolve—f ve—for or the defendants called called none, and that that the jury were give given n a partial parti al gif giftt of speech. By their special verdict this House has been told that th at they considered considered that the t he plain plainti tiff ff would would be full fully y compensated by £15,000. £15,000. The The second second reason for reluctance to inter inter fere with a jury's award of damages applies particularly to actions for defamation. defamation. It is that, unless unless the parties otherwise otherwise agree, the consequen consequence ce of setting aside the the jury' jur y'ss verdict must be a new new trial befor beforee another jury, This involves the parties, through no fault of their own, in greatly increased costs which, particularly in libel actions, are, to the discredit of our legal system, out of all proportion even to the large compensatory damages

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1123 A.C.

Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L. (E.))

Lord Diplock

awarded awarded in the instant case. For my part, part, I should not be defl deflec ecte ted d from from setting setting aside a jury's jury' s verdict verdict as a s unreasonable unreasonable by the fear, sometime sometimess ex  pres  presse sed d by appell appellate ate judges judges,, that another another unrea unreason sonabl ablee jury jury migh mightt make make a similar similar unreasonable award of damages on the new new trial. So far as I know this has never happened happened yet. But the consideration consideration of the costs involv involved ed is one whic which h it woul would d be unrealistic and unjust to t o ignore. In the instant case, however, the parties agreed that this House should assess the damages in B the event of the jury's jur y's verdict being being set set aside. aside. No more costs costs woul would d be incurred if the appeal were allowed than if it were dismissed—though the incidence of them on the parties might be different. It may be said, and not implausibly, that there is nothing in the training or experience of a judge which makes him fitter than a jury to determine the pecuniary compensation which a plain plainti tiff ff should should receive for for a reputation reputa tion that is damaged damaged or feeli feeling ngss that are ar e hurt. And there may may be safety safety in C numbers. But it runs counter to the basis of our criminal criminal law, law, in whic which h the  jury determin determinee guil guiltt and the judge determi determines nes the appropriate appropriate punish punishmen ment, t, to treat the jury as better quali qualifi fied ed than a judge to assess assess the pecuniary pecuniary  penal  penalty ty whic which h a defen defendan dantt ough oughtt to pay pay for for cond conduc uctt whic which h merit meritss puni punish sh ment. On an appeal from from the jury's jury' s award of of £40, £40,00 000 0 whic which h I know to be compensatory to the extent of £15,000 only, I should approach it in the  j5 same same way as I shou should ld approach approach a fine of of £40, £40,00 000 0 impos imposed ed by a judge judge in a criminal prosecution. Even if if I thought the jury had been been given given an adequate direction by the judge, I would have set the award aside and substituted an award of £20,000. I have thought it right to express my own minority opinion as to what the result of of this appeal should should be. It is that with with whi which ch the parties are  prima  primaril rily y conc concer erne ned— d—an and d it is they who who are payi paying ng for it. It is, howev however er,, E inherent in our legal system system that, tha t, owing owing to the manner in which which the the Court of Appeal dealt with the instant case, the unsuccessful party is also paying for the ruling of this House upon two questions of law of much more general importance. The first firs t is as to the eff effec ectt of the decisio decision n in  Rookes v.  Barnard  [1964] [1964] A.C. A. C. 1129 on the the assessment of damages da mages for defamation and whether that tha t decision decision ought ought to be follo followed. wed. The The second second is as to the P propriety of of the manner in whi which ch the Court of of Appeal, as an intermediate appellate court, dealt with the decision of this House in   Rookes v.  Barnard. To these these two two topics I now turn. In  Rookes V. Barnard   the plaintiff's claim was for damages for the tort of intimidation. At the trial the judge had summed summed up to the jury in terms which left it open to them to award exemplary damages. There was a crossappeal against the amount of damages, upon upon whic which h this House heard separate G and lengthy lengthy argument. It was necessary necessary as a matter of decision decision of the cross-appeal for this House to determine whether the facts in   Rookes v.   brought it within a category of cases in which exemplary damages  Barnard  brought were recoverable recoverable at common common law. law. This House determined determined that they did did not and ordered a new trial. There There were two differen differentt processes of of reasoning by which which it would would have conclusion of of law. One, which was not adopted TT been possible to reach this conclusion  by this House, wa wass to hold hold that the particul particular ar tort of inti intimi mida dati tion on wa wass one one in which which the common common law did not permit of of exemplary damages. The other, other, which was adopted by this House, was to state the categories of cases in A

1124 Lord Lord Diplock Diplock Broo Broome me v. Cass Cassel elll & Co. (H.L.(E.)) [197 [1972] 2] which alone exemplary damages might be awarded at common law and to determine whether the facts in Rookes v. Barnard  brought   brought it within one of these categories. Lord Devlin's speech upon the cross-appeal in  Rookes v.  Barnard, in which all the five members who heard the appeal explicitly concurred, was a deliberate attempt by this House to do two things. (A) As a matter of legal exposition, to formulate the rationale of the assessment of damages for torts t orts in which damages damages are " at large." larg e." (B) (B) As a matter of legal legal policy, to restrict the categories of cases in which damages can be awarded against a defendant in order to punish him, to those in which this method of in flicting punishment still serves some rational social purpose today. Lord Devlin's speech, however, does not follow the simple arrangement of exposition follo followed wed by choice of policy. He starts starts by formulating three three heads of damages. damages. The purpose of two of them is to compensate compensate the  pl  plaintiff;  that of the third is to punish punish the defendant. This formulation is foll follow owed ed by an analysis analysis of of the previous authorities. author ities. These authorities lead to the policy decision to accept two categories of cases in which exemplary damages may be recovered and, proleptically, to reject other categories of cases in which it had previously been thought that damages might be awarded in order to punish the defendant. defendant. He then reverts to exposition exposition of some considerations considerations which follow follow from from the purpose served by exemplary damages and which should be borne in mind when awards of exemplary damages damages are made. Finally he reverts to an analysis analysis of the previous authorities for the purpose of completing the policy decision by over-ruling those which were authority for the award of exemplary damages where the injury to the the plain plaintif tifff had been aggravated by malice or by the manner of of doing the injury, that is, the insolence or arrogance by which it was accompanied. It is, however, convenient for the purposes of the instant appeal to deal with exposition exposition and with policy separately. The three heads under which damages are recoverable for those torts for for which which damage damagess are " a t larg la rge" e" are cla class ssif ifie ied d under three heads. heads. (1) (1) Compensation for the harm caused to the t he plainti plaintiff ff by the wrongful wrongful physical act of the defendant defendant in respect respect of which which the action is brought. In addition to any pecuniary loss specifically proved the assessment of this compensa tion may may itse itself lf involve involve putting a money value upon physical physical hurt, hur t, as in assault, upon curtailment of liberty, as in false imprisonment or malicious  prosec  prosecuti ution, on, upon upon inju injury ry to reputation reputation,, as in defam defamati ation, on, fals falsee impri impriso son n ment and malicious prosecution, upon inconvenience or disturbance of the even even tenor of life, life, as in man many y torts, tort s, including including intimidation. (2) (2) Additional compensation for the injured feeling feelingss of the plaint plaintiff iff where his sense of injury resulting from the wrongful physical act is justifiably heightened by the manner manner in which which or motive motive for for which the defenda defendant nt did it. This Lord Devlin Devlin calls "aggra "ag gravat vated ed damages." damage s." (3) (3) Punishment of of the defendant for his anti-social behaviour to the plaintiff. This Lord Devlin Devlin calls calls " exem exem  plary  plary damages." damages." I shou should ld have have pref prefer erre red d the alternat alternative ive expres expressi sion on " punitive damages" to emphasise the fact that their object is not to com  pensat  pensatee the plai plaint ntif ifff but to punish punish the the defe defend ndan antt and to deter deter him, him, and  perhaps  perhaps others, others, from from comm commit itti ting ng simi simila larr torts. To avoi avoid d conf confus usio ion n I have, have,

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1125 A.C.

Broome Broome v. Cassell & Co. (H.L.(E. (H.L .(E.)) ))

Lord Lord Diplock Diplo ck

however accepted the lead of Lord Hailsham of St. Marylebone L.C. in A adhering to Lord Devlin's adjecti adjective ve " exemplary." It may seem remarkable that there had not previously been any judicial analysis, even as elementary as this, of the constituent elements of the compound compound "dam "d amag ages es at large." large ." But it has to be remembe remembered red that th at at common law law the assessment of damages was the exclusive function of a  jury,  jury, and, despit despitee grow growin ing g exce except ptio ions ns from the mid-ni mid-ninet netee eenth nth ce cent ntury ury B onwards, nearly nearly all actions for for torts torts in which which damages were at large were tried by jury until after 1933. 1933. The assessm assessment ent of of damages was was an arcanum of the jury box into which judges hesitated to peer; and it does not appear to have been their practice to give any direction to the jury as to how they should arrive at the amount of damages they should award, beyond some general exhortation to do their best in a matter which was peculiarly within their sphere. C What is disclosed disclosed by an examination of previous judgments since since the eighteenth century, given upon applications for a new trial on the grounds that the award award of a jury was too too large or too small, small, is a confus confusion ion of language and consequently of thought as to what were the constituent elements elements in an an award award of damages damages at large. large. In particular there is a complete complete failure to distinguish between aggravated and exemplary damages in cases  j)  j ) wher wheree the mali malice ce of of the def defen enda dant nt or the mann manner er in whic which h he did did the wron wrong g ful act had both increased the injury to the plaintiff's feelings and aroused the indignation of the jury themselves. In addition to the cases specifically referred to by Lord Devlin in  Rookes v.  Barnard,  your Lordships have been been referred referred to many many others in the course course of of the argument in in the instant appeal. app eal. They serve serve but to con con firm firm the confus confused ed state of the law upon this subject subject before before 1964. 1964. ** The tort of of defamation, to which which Lord Devlin Devlin made only a passing reference in Rookes v. Barnard, has special characteristics which may make it diff diffic icul ultt to allocate allocate compensatory damages between between head (1) and head (2). The harm caused caused to the plaint plaintiff iff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude  p toward towardss him. him. A sola solati tium um for for inju injure red d feel feelin ings gs,, howe howeve verr inno innoce cent nt the publi publi cation by the defendant may have been, forms a large element in the damages under head (1) itself even in cases in which there are no grounds for " aggravate aggravated d dama da mage ges" s" under head (2). Again Again the harm done done by the publication, for which damages are recoverable under head (1) does not come to to an end end whe when n the publication publication is made. As Lord Atkin said in Ley v.  Hamilton, 153 153 L.T. 384, 386: " I t is impossible impossible to G track the scandal, to know know what quarters the poison poison may reach." reach ." So long as its withdrawal is not communicated to all those whom it has reached it may may continue continue to spread. I venture to think that tha t this is is the rationale of of the undoubted rule that persistence by the defendant in a plea of justifica tion or a repetition of the original libel by him at the trial can increase the damages. By doing so he prolongs the period period in whic which h the damage from from the JJ original publication continues to spread and and by giving giving to it further publicity at the trial, as in Ley v.  Hamilton,  extends the quarters that the poison reaches. The defendant's conduct betw betwee een n the date of publication publication and the conclusion of the trial may thus increase the damages under head (1). A.C.  1972—40

1126 Lord Lord Diplock

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E. ))

[1972] [19 72]

In this sense sense it may be said said to " aggravate aggravate " the damages damages recoverable as, conversely conversely,, the publication of an apology apology may may " mitigate mitigate " them. But this is not " aggravated damages " in the sense that that expression was used used by Lord Devlin in head (2). On the other hand the defendant's defendan t's con duct after the publication may also afford cogent evidence of his malice in the original publication of the libel and thus evidence upon which " aggra vated damages " may be awarded under head (2) in addition to damages under head (1). (1). But although considerations considerations suc such h as these may blur the edges edges of the boundary between compensatory damages under head (1) and com  pensat  pensatory ory dama damage gess under under head head (2) (2) in the ca case se of defam defamat ation ion,, they they do not affect the clear distinction between the concept of compensatory damages and the concept of exemplary damages under head (3). My Lords, Lord s, the major clarific clarificati ation on of legal legal reasoning reasoning to be found in the expository part of Lord Devlin's speech in  Rookes V.  Barnard  wa wass the recognition, first, that th at the award of a single single sum sum of money as damages for tort, tor t, while it must always perform perform the function function of giving to the plainti plaintiff ff what he deserves to receive to compensate him fully for the harm done to him by the defendant, may in appropriate cases also perform the quite differe different nt function function of fini fi ning ng the defendant what he deserves to pay by wa way y of punishment; and secondly, that even in those appropriate cases, it is only ifif what the defendant defendant deserves to pay as punishment exceeds exceeds what the  plai  plaint ntif ifff deser deserves ves to rece receiv ivee as compen compensat sation ion,, that the plai plaint ntif ifff can be also also awarded awarded the amount amount of the excess. This is a windfall windfall which which he receives receives  becau  because se the ca case se happe happens ns to be one one in whic which h exem exempl plar ary y dama damage gess may be awarded. It is not necessary to dwell upon the three considerations which Lord Devlin Devlin referred referred to as arising arising from from the nature natur e and function function of punitive damages. The first first consideration qualifies qualifies the categories of cases in which which exemplary exemplary damages damages may be awarded. The Th e plain plainti tiff ff must him himse self lf have  been  been the vict victim im of the the cond conduc uctt of the defenda defendant nt whic which h merit meritss punish punishmen ment: t: he can only profit profit from from the windfall windfall if the wi wind nd was blowing his way. way. The second consideration is relevant to the attitude of an appellate court to a jury ju ry's 's assessm assessment ent of of exemplary exemplary damages. I have already taken taken it into account in forming forming my conclusion conclusion that the jury's jury 's award award of of £40,00 £40,000 0 ought to  be set set aside. aside. The third third conc conclu lusi sion on relates relates to the relev relevan ance ce of the defe defend nd ant's means to any assessment of punitive damages in excess of the amount required to compensate the plaintiff. These three considerations are followed by the crucial exposition of the way in which a jury should be directed in a case in which it is open to them to award award punitive damages. damages. I have already dealt with this in the first fir st criti cism cism which which I have made made of the summing-u summing-up p at the trial in the instant case. It should perhaps be pointed out that Lord Devlin did not suggest that in a case which clearly came within within a category which justified justified an award of exemplary damages the jury should be invited to make separate awards in respect of the compensatory and the punitive element, although no doubt a judge sitting alone shoul should d do so. It wa wass only in cases where where it might might  be doubtfu doubtfull wheth whether er exem exempl plar ary y damage damagess were were permi permiss ssib ible le that he sugg sugges este ted d that special special verdicts splitting splitting the total award might serve a usefu usefull purpose in avoiding the necessity of a new trial in the event of appeal. It has not been contended that those parts of Lord Devlin's speech

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E. ))

Lord Lord Diplock

which expounded the rationale of the award and the assessment of exemplary damages in those cases in which which they could be recovered did not serve a useful purpose which lay well within the functions of this House in its judicial capacity. I t brought brough t some some order out of chaos, some some light and reason into what was previously a dark and emotive branch of the common law. law. What has been criticised criticised is the decisio decision n of legal legal policy policy to restrict the categories of cases in which exemplary damages may be awarded. B If the common common law stood stood still while while mankind moved moved on, your Lordships might still be awarding bot and wer to litigants whose kinsmen thought the feud feud to be outmoded—th outmoded—though ough you could could not have done so to the  pla  plain inttiff iff in the instant instant appeal, appeal, beca becaus usee defa defama mati tion on woul would d neve neverr have have be come a cause of action. action. The The common common law law would would not have survived in any of those countries which have adopted it, if it did not reflect the changing norms of of the th e particular particula r societ society y of of which which it is the basic legal legal syste system. m. It has C survived survived because the common common law subsumes subsumes a power in judges to adapt ada pt its rules to the changing needs of contemporary society—to discard those which which have have outlived their t heir usefulness, usefulness, to develop new new rules to meet meet new new situations. As the supreme appellate tribunal of of England, your Lordships Lordshi ps have the duty, when occasion offers, to supervise the exercise of this power  by Engli English sh courts. courts. Other Other supre supreme me appell appellate ate tribunals tribunals exer exerci cise se a simi simila larr D functio function n in other countries which which have inherited the t he English English common common law law at various times in the past. Despite the unif unifyin ying g effe effect ct of that th at inheritance upon the concept of man's legal duty to his neighbour, it does not follow that the development of the social norms in each of the inheritor countries has been been identical identical or will will become become so. I do not think that your Lordships should be deflected from your function of developing the common law of England and discarding judge-made rules which have outlived their purpose E and are ar e contrary to contemporary contemporary concepts of of penal justice in England,  by the consid considera eratio tion n that other courts courts in other countr countries ies do not yet yet regard regard an identical development as appropriate to the particular society in which they perform a corresponding function. function. The fact that the courts court s of Austra Austr a lia, of New Zealand and of several of the common law provinces of Canada have failed failed to adopt ado pt the same policy policy decision decision on exemplary exemplary damages as P this House did for England in  Rookes v,  Barnard afford affordss a cogent reason for re-examining it; but not for rejecting it if, as I think to be the case, re-examination confirms that the decision was a step in the right direction  —tho  —thoug ugh h it may may not have have gone gone as as far far as cou could ld be just justif ifie ied. d. The award of damages as the remedy for all civil wrongs was in England the creature creat ure of of the comm common on law. It is a field fie ld of law in whic which h there has  been  been but little little interv intervent ention ion by Parliam Parliament. ent. It is judgejudge-ma made de law law par G excelle excellence. nce. Its original purpose in in cases cases of trespass was was to discourage discourage  privat  privatee reve reveng ngee in a primi primiti tive ve soci societ ety y inadeq inadequa uatel tely y police policed, d, at least least as much much as it was to compensate the victim for the material harm occasioned to him. Even as late as 1814 1814 Heath J. felt able to say: " It goes goes to prevent the practice of duelling, if juries are permitted to punish insult by exem  plary  plary damage damagess ": " :  Merest  v.  v.  Harvey (1814) 5 Taunt,  Taunt , 442,444. 442,444. H No one would would today sugges suggestt this as a justifica justification tion for rewarding rewarding the. victim of a tort for refraining from unlawful vengeance on the wrong-doer. Conversely, the punishment of wrong-doers today is regarded as the func tion of the state to be exercised subject to safeguards for the accused A

1128 Lord Lord Diplock

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.( E.))

[1972] [19 72]

assured to him by the procedure of the criminal law and with the appro  priate  priate puni punish shmen mentt asse assess ssed ed by a disp dispass assio ionat natee judge judge and and not by by a jury jury rous roused ed to indignation by partisan partisan advocacy. One of of the most signi signific ficant ant and humane developments in English law over the past century and a half has been the increasing protection accorded to the accused under our system system of criminal justice. As my my noble and learned friend, friend, Lord Reid, Rei d, has pointed out no similar protection is available to a defendant as a party to a civil civil action. So the survival into the latter half of the twentieth century of the power of a jury in a civil trial to impose a penalty on a defendant simply to  puni  punish sh him him had had beco become me an anom anomal aly y whic which h it lay lay wi with thin in the power power of this House in its judicial capacity to restrict or to remove; though it would have been anticipating by two years the recent change in the practice of this House if to have done so would have involved overruling one of its own own previous decisions. Lord Devlin's analysis of previous decisions disclosed three kinds of cases in which the courts had recognised the right of a jury to award damages by way of punishment of the defendant in excess of what was sufficient to compensate the plaintiff for all the harm occasioned to him. The categorisati categorisation on was new. new. Its purpose has, I think, been misunder misunder stood. No one sugg suggest estss that judges, when when approving awards of exemplary damages in in particular particular cases in the past consciously consciously differenti differentiated ated between one kind of case in which exemplary damages could be awarded and another. They dealt with with them them all as fallin falling g within within a sing single le nebulous class of cases in which the defendant's conduct was such as to merit  puni  punish shmen ment. t. The purpo purpose se of Lord Lord Devlin Devlin's 's divi divisi sion on of them them into into three three categories was in order to distinguish between factual situations in which there was some special reason still relevant in modern modern social conditions for retaining the power to award exemplary damages, and factual situations in which no such special reason still survived. With this end in view Lord Devlin extracted from the single nebulous class which appeared to be all that had been consciously recognised as  just  justif ifyi ying ng an aw awar ard d of exem exempl plar ary y dama damage gess at comm common on law, law, tw two o cat categ egor orie iess of cases in which which this House decided decided that that there the re were special special reasons why why the power power to award exemplary damages should should be retained. These two (apart from cases where exemplary damages are authorised by statute) are generally generally referred referred to as " t h e categories." But there is also to be found found in the previous cases a third category, consisting of the remainder of the single nebulous class in which this House decided that the anomalous  practi  practice ce of aw awar ardi ding ng exem exempl plar ary y dama damage gess in civi civill proc procee eedi ding ngss ough oughtt to be discontinued. The first firs t category comprised cases of abuse of of an offi offici cial al position of authority. author ity. This would seem to be analogous to the civil civil law concept of of d€tournement de pouvoir, with the limitation that it must involve the com mission of an act which would be tortious if done by a private individual. The cases cit cited ed are two hundred years old. old. It would would not appear that the actual act ual conduct of the defendant defendant himsel himselff need justify justify an award of of aggravated damages. damages. In  Huckle v.  Money  (1763) 2 Wils. 205 the defendant appear appearss to have treated the plain plaintif tifff with courtesy and and consideration. consideratio n. The servant was the whipping-boy for the political head of the government.

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E .))

Lord Lord Diplock

 Nor nee eed d he have have known known that his his act wa wass wrong wrongfu ful. l. Mone Money, y, a mere mere subsub" ordinate ordin ate off offic icia ial, l, can hardly have been expected expected to know know that that general warrants warrants issued by the Secretary Secretary of of State were illegal. In  Wilkes v.  Wood (1763 (1763)) Lofft. Lofft. 1, however, it was said tha thatt a belief belief that the act impugned was lawful could be pleaded in mitigation of damages. The second category was of cases where an act known to be tortious was committed in the belief that the material advantages to be gained by B doing so would would outweigh outweigh any compensatory compensatory damages whic which h the defendant would be likely to have to pay to the  plaintiff. This would would seem seem to be analogous to the civil law concept of enrichessement indue subject to a similar limitation that the act resulting in enrichment must be tortious. The cases cited by Lord Devlin do not include underground trespass to minerals, which provide the classic examples in the nineteenth century of this category category of of tort. There is high high authority authority both in this House (LivingC  stone v. Rawyards Coal Co. (1880) 5 App.Cas. 25) and in the Privy Council (Bulli Coal Mining Co. v.  Osborne  [1899] A.C. 351) that in the case of wilful clandestine trespass to minerals the damages may be assessed at the market value of the minerals without deduction for the cost of working— an award which would would exceed both the the loss loss to the plaintiff plaintiff and the profit profit to the defendant defendant from from his wron wrongf gful ul act. act. The excess excess is is punishment. D The third—and rejected—cat rejected—category egory is numerically by far the largest. It consists of cases in which the manner in which the tort has been committed has attracted a whole gamut of dyslogistic judicial epithets such as wilful, wanton, high-handed, oppressive, malicious, outrageous; particularly those where the defendant's manner of doing the tortious act has been characterised by arrogance or insolence insolence or, in the preferred preferred Australian  phrase,  phrase, a cont contum umel elio ious us disr disreg egar ard d of the the plai plaint ntif iff' f'ss righ rights ts.. Thes Thesee are nearl nearly y E all cases cases in in which which " aggravated damages damages " by wa way y of of compensation apart apa rt from punishment can be awarded and much of the previous confusion about exemplary damages stems from this. Apart Apart from this conf confusi usion on or perhaps because of of it, I do not doubt that it was the general understanding of English judges and of those who practised in the English courts that exemplary damages by way of punishment of  p the defe defend ndan antt as well ell as aggr aggrav avat ated ed dama damage gess by way of comp compen ensa sati tion on of the plain plaintif tifff could be awarded in cases which fall fall within within the the third category. Lord Devlin's speech in  Rookes v.  Barnard  explicity   explicity acknowledges this. It was an understanding which which he himse himself lf had shared. He had give given n effe effect ct to it in his own summing-up in  Loudon v.  Ryder  [1953] 2 Q.B. 202. The decision of legal policy which this House made in  Rookes v.  Barnard   was to retain the first two categories and to discard the third as ^ obsolete. In describing the two categories retained I have deliberately departed from from the ipsiss ipsissima ima verba of of Lord Devlin's description description of of them. His state ment of of the categories was not intended intended as a definit definition ion to be construed as as if it were were enacted law. They were were retained because this House considered that there were circumstances in which a power to award exemplary damJJ ages still still serv served ed a usefu usefull social social purpose and the descriptive descriptive words must must be understood in the light of the social purpose which they were designed to serve. My Lords, had I been party to the decision in Rookes v. Barnard  I  I doubt

1130 Lord Lord Diplock

Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.( E.))

[1972] [19 72]

if I should have considered it still necessary to retain the first category. The common law weapons to curb abuse of power by the executive had not been been forged forged by the mid-eighteenth century. century. In vie view w of the the develop ments, particularly in the last twenty years, in adapting the old remedies  by prero prerogat gative ive writ writ and declar declarato atory ry act actio ion n to chec check k unla unlawf wful ul abuse abuse of  powe  powerr by the execu executi tive ve,, the the aw awar ard d of exem exempl plar ary y dama damage gess in civi civill act actio ions ns for tort against individual government servants seems a blunt instrument to use for for this purpose purpose to-day. But if if it is to be retained— retained—aa question whic which h cannot arise in the instant appeal—the reasoning which supports its reten tion would not confine it to torts committed by servants of central govern ment alone. It woul would d embrace all persons persons purporting to exerci exercise se powers powers of government, government, central or local, conferred conferred upon them by statute or at at common law by virtue of the official status or employment which they held. I have no similar doubts about the retention of the second category. It too may be a blunt instrument to prevent unjust enrichment by unlawfu unlawfull acts. But to restrict the damages damages recoverable recoverable to the actual gain made by the defendant if it exceeded the loss caused to the  plaintiff,  would leave a defendant contemplating an unlawful act with the certainty that he had nothing to lose to balance balanc e against the chance chance that the plainti plaintiff ff might might never sue him or, ifif he did, might fail fail in the hazar hazards ds of litigation. It is only if there is a prospect that the damages may exceed the defendant's gain that the social purpose of this category is achieved—to teach a wrong-doer that tort does not pay. To bring a case within this category it must be proved that the defendant, at the time that he committed the tortious act, knew that it was unlawful or suspecting suspecting it be unlawf unlawful ul deliberately refrained refrained from from taking obvious steps which, which, if if taken, would would have turned suspicion suspicion into certainty. certainty. While, While, of course, it is not necessa necessary ry to prove prove that the defendant defendant made an arithmetical calculation of the pecuniary profit he would make from the tortious act and of the compensatory damages and costs to which he would render himself liable, with appropriate discount for the chances that he might get away with it without being sued or might settle the action for some lower figure, figu re, it must be a reasonable inference inference from from the evidence evidence that he did direct his mind mind to the materi material, al, advantages to be gained gained by committing committing the tort and came to the conclusion that they were worth the risk of having to compensate the t he plaint plaintiff iff if he should bring an action. action. I see no reason for restoring to English law the anomaly of awarding exemplary damages in the third category of of cases. If malice with which which a wrongful act is done or insolence or arrogance with which it is accompanied renders renders it more distressing to the plai plaint ntif ifff his injured injured feelin feelings gs can still be soothed soothed by aggravat aggravated ed damages damages which which are compensatory. I share the scepticism expressed by Windeyer J. in  Uren v.  John Fairfax & Sons Pty.  Ltd., 117 C.L.R. 118, 118, 151-152 151-152 as to whether what was in the de fendant's mind at the time he committed the tort really increases the injury to the plaintiff's plaintiff's feeling. feeling. I think too that tha t an evanescent evanescent sense sense of of grievance at the defendant's conduct is often grossly over-valued in comparison with a lifelo lifelong ng deprivation due to physical physical injuri injuries es caused by negligence. negligence. But my own own equable temperament temperam ent may be idiosyncratic and the the law law of of " aggra vated damages " does not call for closer examination in the instant appeal. Finally, on this aspect of the case I would express my agreement with the

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E .))

Lord Lord Diplock

view that  Rookes v.  Barnard   was not intended to extend the power to award exemplary exemplary or aggravated aggravated damages damages to particular torts tort s for whic which h they had not previousl previously y been awarded; such such as negli neglige gence nce and deceit. Its express purpose was to restrict, not to expand, the anomaly of exemplary damages. My Lords, there is little that I should wish to add to what Lord Hailsham of St. Marylebone L.C. and my noble and learned friend, Lord Reid, have already said said about the way way the instant case was was treated in the Court Court of of Appeal. It is inevitabl inevitablee in a hierarchical syste system m of of courts that there are decisions of the supreme appellate tribunal which do not attract the unani mous approval of of all a ll members members of of the judiciary. When When I sat in in the Court of Appeal I sometimes thought the House of Lords was wrong in over-ruling me. me. Even since that time there have been been occasions, of which which the instant appeal itself is one, when, alone or in company, I have dissented from a decision decision of of the majority majority of this House. But the judicial syste system m only only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted. The Court of Appeal Appe al found found themselves themselves able to disregard the decision of this House in  Rookes v.  Barnard  by   by applying to it the label per incuriam. That label is relevant only to the right of an appellate court to decline to foll follow ow one of of its own previous decisions decisions,, not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard disregard a decisio decision n of of the Court of of Appeal. Even if if the juris diction of the Court of Appeal had been co-ordinate with the jurisdiction of this House and not inferior to it the label per incuriam would have been misused. misused. The reasons reasons for for applying applying it were said to be: be : first, that tha t Lord Devlin Devlin had overlooked two previous decisions of this House in  E. Hulton & Co. v. Jones [ 1910] A.C. 20 and  Ley  Ley v. Hamilton, 15  153 L.T. 384; secondly, that the " two categories " selected selected as those in which which the power power to award exemplary exemplary damages should be retained had not been previously suggested by counsel in the course of their arguments. I find the suggestion that E. Hulton & Co. v. Jones, the leading case on innocent defamation, is to be regarded as an authority for an award of exem exempl plar ary y damage damages, s, quite quite unacce unaccepta ptabl ble. e. Ley Ley v.  Hamilton was discussed at some length in Lord Devlin's speech. I myse myself lf agree with his interpreta tion of of Lord Atkin's Atkin 's speech. speech. The Court of of Appeal did did not and in in this this they now have the powerful support of my noble and learned friend, Viscount Dilhome. Dilhome. But, however however wrong wrong they may may have thought Lord Devlin Devlin was, they cannot have thought that he had overlooked   JLey v. Hamilton. The second second reason I find equally equally unconvin unconvincing cing.. On matters of of law no court is restricted in its decisi decision on to foll follow owin ing g the th e submiss submission ionss made to it by counsel counsel for for one or other of of the parties. parties . After listening to a lengthy argu ment which embraced a full examination of a large and representative selec tion of the relevant relevant previous authorities this House was ful fully ly entitled entitled to come to a conclusion of law and legal legal policy diffe differen rentt from from that that which any individual counsel had propounded. With regard to the amount of exemplary (and also aggravated) damages which which may be awarded where the plainti plaintiff ff elects to sue defendants defendants jointly for a single tort, I agree with Lord Hailsham of St. Marylebone L.C. that the Court of Appeal got it wrong. wrong. Where I dif diffe ferr from from him is in thinking that

1132 Lord Lord Diplock

Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.( E.))

[1972] [19 72]

the trial judge got got it right. I am fort fortifi ified ed in this view view by the fact fact that Lord Denning M.R. understood the summing-up as leaving to the jury a choice whether to award a sum appropriate as a punishment of the more blame worthy of the defendants or the less blameworthy or something in between the two two sums. sums. Salmon Salmon L.J. appears to have have taken the same view. view. Both thought that this was a correct statement statement of of the law. In this I think that they were mistaken as to the law, but right as to what the jury would have understood the summing summing-up -up to mean. B On the wider aspects of the course adopted by the Court of Appeal it is best that I should content myself with expressing my concurrence with all that Lord Hailsham of St. Marylebone L.C. has said. My Lords, Lords , there are several several reasons reasons which which induce me to be as brie brieff as I can. First, the case case in in its important general general aspects aspects is concerned concerned with with doctrines, and to some some extent extent with with procedures, with with which which I am not familiar. Secondly, Secondly, those general general aspects have have been been examin examined ed in great detail and in an authoritative manner by your Lordships who have  prece  preceded ded me. Thirdly, Thirdly, sinc sincee it is unli unlike kely ly that any any contribu contribution tion of mine mine would be regarded as of value in clarifying the law of England, I may at least wind up the consideration of a disastrous case with economy, the lack of which, which, especia especially lly in this class class of of litigation, is, as others of of your y our Lordships have observed, a notoriously discreditable feature of our juris  prudenc  prudence. e. In short, short, havi having ng had the advant advantage age of readin reading g the spee speech ches es  prepar  prepared ed by my my nobl noblee and and learne learned d friends friends,, Lord Hailsh Hailsham am of of St. Maryle Marylebon bonee L.C, Lord Reid and Lord Morris of Borth-y-Gest, I agree with them. It is conceded by the appellants that they libelled the respondent, and they do not attack as excessive the sum awarded by the jury as compensa tion for the damage damage they did to his feeli feeling ngss and his reputation. reputat ion. It is also conceded that, if there was evidence upon which a properly directed jury could find that the appellants had calculated that they might make a profit from publication which might exceed the compensation payable to the  pl  plaintiff, then, since " one man should not be allowed allowed to t o sell another man's reputation for profit," and since it may be " necessary to teach a wrongdoer wrongdoer that tort does not pay," the jury were were entitled entitled to award punitive damages, on the authority of   Rookes v. Barnard   [1964] A.C. 1129, 1227. The first question, and one which from first to last occupied a very great deal of time in your Lordships' House, was whether there was such evidence. I have no doubt on this point at all, and I do not rehearse the evidence. The jury had before them the state of the appellants' knowledge before  public  publicati ation— on—tha thatt the respon responden dentt had warned warned them them that he regarde regarded d certai certain n  pass  passag ages es as libello libellous, us, that prof profes essi sion onal al nava navall opinio opinion n wa wass to the same same effect, and, above all, that another anoth er reputable reputable publisher had refus refused ed to handle the  book  book beca becaus usee of its its defam defamat atory ory characte character. r. The appellants' appellants' attitude is demonstrated by their written references to libel actions as affording " first class cla ss publicity," publicity," and to " tightening tightening up the indemnity indemnity clause." clause ." No doubt there was was an eleme element nt of of the jocular in these remarks, but they do sho show w that the appellants were going ahead with their eyes open as to consequences, and they must have thought it would be worth their while. Counsel for the appellants pointed out, and I for one agree, that since LORD KILBRANDON.

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Broome v. Cassell Cassell & Co. (H.L.(E. (H.L .(E.)) ))

Lord Lord Kilbrandon

all commercial publication is undertaken for profit, one must be watchful against holding holding the profit-motive profit-motive to be suff suffic icie ient nt to to justif justify y punitive punitive damages: damages: to do so would be seriously to hamper what must be regarded, at least since the European Convention was ratified, as a constitutional right to free speech speech.. I can see see that it could could be in the public interest that publication should not be stopped merely because the publisher knows that his material is defamatory; it may well be in the public interest that matter injurious to others be disseminated disseminated.. But if it were sugges suggested ted that this freedom freedom should also be enjoyed when the publisher either knows that, or does not care whether, his material is libellous—which means not only defamatory but also untrue—it would seem that the scale is being weighted too heavily against the protection of individuals from attacks by media of communication. The conduct of the appellants, accordingly, is in my view brought within the principle of the rule laid down in  Rookes v.  Barnard  to   to which I have just referred. referred. If a publisher publisher knows, knows, or has has reason reason to believe, believe, that the act of publication will subject him to compensatory damages, it must be that, since he is actuated actuated by the profit-motive, profit-motive, he is confiden confidentt that by that that publica publica tion he wil willl not be the loser. Some Some deterrent, over and above compensato compensatory ry damages, may in these circumstances be called for. This leads me to the little I have to say on the doctrine of punitive damages. damages. I do not propose to disc discuss uss its merits merits or demerits demerits,, because because I agree with Lord Devlin, not only that it forms part of the law of England, but also that its abolition would not be within within the the judicial functions functions of this House. I will, will, howeve however, r, add that I am not conv convinc inced ed that any statutory example example of of the th e recogniti recognition on of the doctrine is to be found. found. By the Law Law Reform (Miscellaneous Provisions) Act 1934 it is provided that where a cause of action survives for the benefit of the estate of a deceased person, the damages recoverable for the bene benefit fit of of that estate shall not include any exemplary damages. damages. In the previous subsection subsection provision provision had also been made, per contra, for causes of action subsisting   against the estates of deceas deceased ed persons. Since Since punitive damag damages es are punitive or deterrent against against the author of them, it would have been understandable if the statute had refuse refused d to allow allow them them against a dead dead man. But, instead, they have been disallowed disallowed when when they are claimed claimed in respect of of an injury injury to a dead man. This leads me to suppose suppose that by the phrase " exemplary exemplary dam d amag ages es"" Parliament was here referring to what are usually called " aggravated " damages; the estate of a dead man must pay them in order to indemnify the living, but the estate of a dead man, whose feelings, post mortem, have  beco  become me irrele irrelevan vant, t, does does not rece receiv ivee them. them. In the same sens sensee I would would interpret interpret section section 13 (2) (2) of of the Reserve and Auxiliary Forces (Protection of Civil Civil Interests) Act 1951 1951 which provides for the award, in certain circumstances, of " exemplary exemplary damages damages." ." Section Section 13 (2) (2) applies, by virtue of section 13 (6), (6), to Scotland, and and since I can hardly hardly  beli  believ evee that this this Act introd introduce uced d for for the first tim time, e, as it were were by a side side-w -win ind, d, the doctrine of punitive damages into the law of Scotland, I conclude again that " exemplar exemplary y " really really means means " aggravated." Aggravated Aggravated damages, damages, in the English English sense, sense, are available to pursuers in defamation defamation cases cases in in Scotland, Scotland, subject to this qualification, that the conduct of counsel (cf.  Greenlands Ltd. v. Wilmshurst and London Association for Protection of Trade  [1913] 3 K.B. 507) is not accepted as an aggravation unless that conduct has been

1134 Lord Lord Kilbrandon Kilbrandon

Broome Broome v. Casscll Casscll & Co. (H.L.(E.)) (H.L. (E.))

[1972] [19 72]

on the express instructions, or with the privity, of counsel's client—see  James v.  Baird, 1916 1916 S.C. S.C. 510. Finally, Lord Devlin, at p. 1225, 1225, doubted  whether section 17 (3) (3) of of the Copyright Act 1956 authorised authorised an award of exemplary exemplary damages: in my opinion it did not. I do not suppose that anyone now sitting down to draft a civil code would would include an article providing providing for punitive damages. But the doctrine exists, and in my respectfu respectfull opinion the   rationale  of it is explained, by illustrations illustrations as apt as one could could find, find , in the speech speech of Lord Devlin. Devlin. The doctrine proceeds upon the footing, whether sound or not, that in some torts, and in some circumstances, there is an element of public interest to be  protected  protected.. The only only wa way y in whic which h that can be done done may may be by aw award ardin ing g to a plain plaintif tifff a sum of damages which he does not deserve, dese rve, being in exces excesss of any loss or injury injury he has suffe suffered red;; that tha t sum includes an element cal culated to deter the defendant, and other like-minded persons, from committing similar offen offences ces.. One example, which is Lord Lord Devlin's second category, I have already noticed—the publisher who does not mind paying compensatory, even aggravated, damages for libel, because he will still have a profit profit after paying paying them. It is not in the public interest, especia especially lly as the  publi  publishi shing ng agen agenci cies es beco become me more more and more monoli monolith thic, ic, that such such conduc conductt should go unchecked, and no remedial measures other than punitive damages damages see seem m to be open. open. A secon second d example—Lo example—Lord rd Devlin's first firs t category category  —i  —is in the sphere sphere of public public authorit authority. y. Whil While, e, as some some of your your Lordsh Lordships ips have pointed out, the illustration may have been too narrowly drawn, the rationale is clear, clear, and and is the same. An example example might might be an outrageous excess of official authority without any aggravating circumstances (cf.  Huckle v. Money, 2 Wils. 205) resulting in the wrongful imprisonment of a  pers  person on of bad bad characte character. r. False False impr impris ison onme ment nt is primar primarily ily act actio ionab nable le as an injury to reputatio reputation. n. If the plai plaint ntif ifff has none to lose, the amount of of his his compensatory damages may be inadequate to deter, in the public interest, flagrant injustices of this character. The exclusion of the " common bully " category, and the consequent overruling of   Loudon v.  Ryder  [1953] 2 Q.B. 202, are entirely consistent consistent with with this principle. principle. Very large compensatory compensatory damages, damages, whic which h should should be adequate deterrent, are proper in such such cases, and in most of of them the criminal criminal law can also take care of the public interest. I accordingly accept that the case of   Rookes V. Barnard, as it has now  been  been expo expoun unde ded d by my nobl noblee and lea learn rned ed frie friend nd,, Lord Reid, correc correctly tly states the law law of of England. It cannot be said, and and it does does not purport, to to state the law of Scotland; it may be that in other parts of the Common wealth also it is not, for what may be very diff differen erentt reasons, acceptable acce ptable..  Neve  Nevert rthe hele less ss it appears appears to me to give give conten contentt to the doctrin doctrinee of puniti punitive ve damages, and to set proper limits upon it. The trial having been correctly and inevitably conducted upon the basis of   Rookes v. Barnard  as   as then understood, the question now arises whether the learned judge gave the jury adequate and accurate directions in law on that basis. First, did he fail fail to make it clear to the jury that, tha t, if if they had made an award of of compensatory compensatory damages, any additional award award by way of punitive damages could be made " if, but only if," if," the amount of of the compensatory damages did not itsel itselff constitute constitute a suff suffic icie ient nt deterren dete rrent? t? The second objection was that the learned judge gave an inadequate

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Broome Broome v. Cassell Cassell & Co. (H.L.(E.)) (H.L.(E .))

Lord Kilbrandon Kilbrandon

direction as to the course to be followed by the jury should they find  puniti  punitive ve dama damage gess due, due, but a diff ifferen erentt degr degree ee of culp culpab abil ilit ity y in the the tw two o defendants. I think it is suff suffic icie ient nt for me to say that I agree with with those of your Lordships who are of opinion that the directions, in both matters, were adequate. The aspect of the case which has given me the greatest difficulty is the question whether the total amount of the damages awarded is so exces excessiv sivee that the verdict cannot stand. That it is exces excessi sive ve I do not doubt, doubt,  but that is not a sufficient reas reason on for for the award award to be set aside. aside. The ass asses ess s ment of damages in such cases as this is not, in our law, a judicial function. In so far as compensatory damages are concerned, it may well be right that that t hat should be so. If he were were called called on to estimate the sum sum appro  priate to repair repair the inju injure red d feel feelin ing gs and dama damage ged d reputati reputation on of a citi citize zen n who had been defamed, a judge would be making not a legal, but something more like like a social, social, assessment: there is no reason reason to suppose suppose that his estimate would more probably be correct than would that made col lectively lectively by any twelve twelve sensible sensible men and women. women. So when one looks at a  jury's aw awar ard d in such such a ca case se one one has has to ask, ask, whet whethe herr it coul could d have have been been made by sensible people acting reasonably, or whether it must have been arrived at capriciously, capriciously, uncon unconscio scionabl nably y or irrationally. On that test I think the present award must stand. Moreover, Moreover, it is not unprecedented. unprecedented. For example, in a case in which the libel was in some ways less wounding Youssoupoff  v. Metro-Goldwyn-Mayer Pictures  Ltd., 50 than the present— Youssoupoff  T.L.R. 581—an award, adjusted for the change in money values, of well over twice as large as this was upheld by experienced judges. The same test, as the law now stands, must be applied to a jury's award of punitive damages. damages. Whether this should should be so is another matter; ma tter; it is is arguable that the asses assessme sment nt of of punishment punishment is not properly properly a jury's functio function, n, and ought more readily to be challengeable on appeal to a judicial authority. It is obviou obviouss that, as counse counsell for for the appellants appellants forci forcibly bly pointed out, a defendant against whom punitive damages is sought stands to a great extent stripped of the constitutional safeguards which would be his right were he arraigned before a crimi criminal nal court. One of those safeguards safeguards is a calm judicial determination of the penalty appropriate to his offence. Perhaps, if the doctrine of punitive damages is to be retained, it ought to  be made made a condit condition ion preced precedent ent of thei theirr bein being g aske asked d for for that the plain aintif tiff forgo forgo his right to have the case tried by a jury; it is not likel likely y that a defendant would wish to stand on his own right in that respect. So, So,  although I would myself have assessed the damages at a much smaller sum, I cannot say that the award, on the principles under which we now operate, ought not to stand, or that, were a new new trial to be ordered, the result would, in my confi confiden dentt opinion, be substantially differ different ent.. Finally, I do not consider it necessary for me to say anything on the issue of the relations between this House and the Court of Appeal, except that I entirely agree with what has fallen from my noble and learned friend the Lord Chancellor on this topic. I would, accordingly, dismiss this appeal. Appeal dismissed. Solicitors: Herbert Smith & Co.; Theodore Goddard & Co. F. C.