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The Advocate Co. Ltd. v. Arthur Leslie Abraham
Concise Analytical Summary of the Opinion (Lord Goddard)
Factual and Procedural Background
The respondent sued the appellants to recover damages for libel published in the appellants' newspaper, the Barbados Advocate. Two publications were complained of: one in the issue of 3 April 1943 and another in the issue of 15 April 1943. At trial before the Chief Justice of Barbados and a special jury, the judge held the 15 April publication was not defamatory of the respondent and withdrew it from the jury; no cross-appeal was taken on that ruling. The jury returned a verdict for the respondent on the remaining alleged libel, awarding damages of £2,296 5s. 0d., and judgment was entered accordingly. The appellants appealed on three grounds: (1) the words were incapable of a defamatory meaning of the respondent; (2) inadmissible evidence was received (witnesses were asked the meanings they attached to the words); and (3) the damages awarded were excessive. The appeal was heard by Their Lordships, who considered these issues and the facts surrounding the publications and apology.
Legal Issues Presented
- Whether the words complained of were incapable, as a matter of law, of bearing a defamatory meaning of the respondent (i.e., whether they were only of a class and not aimed at an individual).
- Whether it was erroneous to admit evidence in which witnesses were asked what meaning they attached to the words (a question said to invade the province of the jury).
- Whether the damages awarded by the jury were excessive and should be interfered with on appeal.
Arguments of the Parties
Appellants' Arguments
- The words complained of were incapable of meaning or defaming the respondent because they were directed at the Palestine police as a body and not at any individual member (thus no individual could sue).
- Evidence was wrongly received at trial: witnesses for the respondent were asked not only to whom they understood the words to refer but also what meaning they attached to the words—questions which, the appellants contended, were inadmissible because the jury must decide meaning.
- The damages assessed by the jury were excessive and should be reduced or set aside.
Respondent's Position (as shown in the opinion)
- The respondent treated the letter published on 3 April as aimed at him and his brother officer because they were the only two police officers in Barbados who had previously served in the Palestine Police Force; solicitors were consulted and demands were made for apology, undertaking and substantial damages and costs.
- After receipt of the demand the appellants published a public apology in the 17 April issue of the paper; despite that apology the respondent pursued the action and obtained a jury verdict and damages.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Knuppfer v. London Express Newspaper Ltd. (1944) AC 116; 113 LJ KB 251; 170 LT 362; (1944) 1 All ER 495 | Principle that where words are spoken of a class or body, an individual member cannot sue unless circumstances show the words may be aimed at him; if such circumstances exist the judge should leave the question to the jury. | The court relied on this authority to explain and confirm that because only two officers in Barbados had previously served in Palestine (the respondent being one) and the letter was published in a Barbados paper about such appointments, the judge was justified in leaving the question of whether the words were aimed at the respondent to the jury. |
| Greenlands Ltd. v. Wilmshurst (1913) 3 KB 507; 83 LJ KB 1; 109 LT 487 | Principle that appellate tribunals will interfere where an award of damages is so excessive (or so inadequate) as to be a wholly incorrect estimation of damage; amount must bear some relation to actual damage suffered. | The court cited this case to support interference with the jury's award as being excessively high and unreasonable in relation to the damage proved. |
| Flint v. Lovell (1935) 1 KB 354; 104 LJ KB 199; 152 LT 231 | Explains the same principle about appellate interference with excessive damages and the need for damages to relate to actual harm and not be extravagant. | The court invoked the case to reinforce the view that the jury's award was disproportionately large and that appellate intervention was warranted. |
Court's Reasoning and Analysis
The court addressed the appellants' grounds in the following sequence and reasoning, based exclusively on the opinion text:
- Admissibility of witness evidence: The court acknowledged that while witnesses may be called to prove that they understood the words to refer to the plaintiff (i.e., identification), they should not be asked what meaning they attached to the words because the determination of meaning is for the jury. The Chief Justice ought to have disallowed those specific questions. However, no contemporaneous objection was taken at trial; that failure precluded overturning the verdict on that ground. Furthermore, the trial judge's summing-up correctly instructed the jury to consider what a reasonably intelligent person would understand the words to mean.
- Whether words capable of defamatory meaning of the respondent: The court summarized and applied established law (citing Knuppfer) that if words are directed at a class, an individual member cannot sue unless circumstances show the words may be aimed at him. The court identified relevant circumstances here: only two former Palestine Police officers were in Barbados (the respondent and Captain Holmes-a'-Court); the letter was published in a Barbados paper about appointments of Palestine police officers to the Barbados force; the letter was written by "A Barbadian." On that factual matrix the court held the judge was justified in leaving the question to the jury and that the judge gave full and clear direction on the matter.
- Assessment of damages (excessiveness): The court recognized the ordinary respect owed to the jury's assessment of damages but reiterated authorities (Greenlands; Flint) that appellate courts will interfere where the award is so excessive as to be wholly incorrect. The court noted mitigating facts: a prompt, full and ample apology was published by the appellants (the apology expressly regretted any annoyance, praised the officers' intelligence and efficiency, and reiterated a prior favourable article), the respondent's brother-officer had been satisfied by the apology, and the respondent himself stated in evidence that money was not his object. The court found no actual damage proved and considered that, in view of the apology, a modest figure (the court mentioned £100 as an extreme limit for annoyance) would have been reasonable; the jury's award bore no relation to such considerations and was extravagantly excessive.
- Relief ordered: Consequently, while the court upheld the trial judge's approach to liability and the jury's finding of defamation (so far as liability was concerned), the court concluded the damages award must be set aside as excessive. They ordered a new trial confined to the question of the amount of damages to be awarded.
- Costs allocation: The court balanced the parties' positions: the appellants failed on liability (the principal point of appeal) but succeeded in relation to the quantum of damages. Accordingly, the court ordered that the appellants pay one-half of the respondent's costs of this appeal; the costs of the new trial were left to the discretion of the trial judge who will hear it.
Holding and Implications
APPEAL PARTLY ALLOWED
Holding (direct and explicit):
- The appellate court affirmed the trial judge's decision to leave the question of whether the publication referred to the respondent to the jury (i.e., liability was not disturbed).
- The jury's verdict and the resulting judgment were set aside only insofar as they related to the amount of damages awarded, because the damages were excessive and unreasonable.
- There will be a new trial limited solely to assessing the amount of damages to be awarded to the respondent.
- Costs of this appeal: the appellants were ordered to pay one-half of the respondent's costs of the appeal; costs of the new trial were left to the trial judge's discretion.
Implications:
- Direct consequence for the parties: the finding on liability stands and the respondent's entitlement to damages is recognized in principle, but the quantum determined by the jury is annulled and must be re-assessed at a fresh hearing limited to damages.
- No novel legal principle was laid down by this opinion; the court applied established authorities (including Knuppfer, Greenlands Ltd. v. Wilmshurst, and Flint v. Lovell) to the facts. The decision demonstrates appellate willingness to interfere where a jury's award of damages is extravagantly excessive, particularly where mitigating circumstances (notably a full apology and absence of actual damage) are present.
Final procedural disposition: Appeal partly allowed. New trial limited to amount of damages; costs order as above.
Lord Goddard. -
The action out of which this appeal arises was brought by the respondent to recover damages for libel published by the appellants of him in their newspaper the "Barbados Advocate." He complained of two publications, one in the issue of 3rd April 1943, and another in that of 15th April. The action was tried before the Chief Justice of Barbados and a special jury. His Honour held that the publication of 15th April was not defamatory of the respondent and withdrew it from the jury. There is no cross appeal so it is unnecessary to refer to it further. He left the other alleged libel to the jury, who gave a verdict for the respondent with 2296 5s. od. as damages, a curious sum considering that no special damage was alleged, and judgment was entered accordingly. The appellants appeal on the grounds (1) that the words were incapable of a meaning defamatory of the respondent; (2) that inadmissible evidence was received in that all the witnesses for the respondent were asked and stated the meanings they attached to the words; and (3) that the damages were excessive. Before setting out the facts it will be convenient to deal with the second of these grounds.
All the witnesses were asked not only to whom they understood the words to refer but also what meaning they attached to them. Where a plaintiff alleges that though he is not mentioned by name he is the person at whom an alleged libel is aimed, or where a name is mentioned, that it would be understood by those who know him to refer to him, witnesses can be called to prove that they understood the words to refer to the plaintiff. But they cannot be asked what meaning they attached to the words because that is the very question the jury have to decide. The Chief Justice ought to have disallowed those questions, but no objection was taken to them, and it is now too late to raise the question of their admissibility as a ground for setting aside the verdict. Moreover His Honour in a full and careful summing up, to which no exception can be taken, put the proper question to the jury, namely, what would a reasonably intelligent person understand the words to mean.
Turning now to the facts of this case, it appears that there had been considerable criticism in the Colony as to the appointments of Assistant Superintendents of Police, and in particular to the recent appointment of a member of the Palestine Police to one of these positions in Barbados in preference to a candidate who was already serving in the Island Police Force. The Government published an explanation of the reasons which influenced these appointments, which appeared in the "Trinidad Guardian" on 25th March. At this time there were two, and only two, former members of the Palestine Police occupying these appointments in Barbados, the respondent, who had been in the Colony for some five years, and Captain Holmes-a'-Court. On 3rd April the following letter appeared in the appellants' newspaper which circulates in Barbados :
"Police Officers:
To the Editor :
Sir,-I have just read to my utter dissatisfaction and surprise, in one of the local newspapers, a reproduction of what is termed therein 'Appointment of Barbados Police Officers explained': I must state, that to me, the reason given for the recommendation of the local candidate being appointed in some Force other than the Barbados Police Force is as perforated as a strainer.
Is there a more beloved and popular Police Officer in Barbados than the Deputy Commissioner, Major Goddard ? Certainly not. From whence came this worthy gentleman ? The ranks of course. Well, than, how can anyone be so short-sighted as to presume that we Barbadians of all other people would not give unto one of our own people the maximum support should the occasion arise, especially when we are aware of the fact that that person is reflecting credit on our sons of the soil ?
It is quite obvious that if one of our people is considered worthy of filling such a responsible position, our first conclusion must definitely be that he is at least twice as capable as the outsider who may be some Lance or Full Corporal in the Palestine Police Force, the majority of whom I have been either fortunate or unfortunate to encounter, can scarcely conjugate more than six or eight of the verbs of their own language, and who, when they try to explain an idea or thought verbally never succeed without the inclusion of a sickening amount of verbosity.
Our Junior N. C. O. is on the spot, he has the qualification plus a perfect understanding of the mentality of the people of the colony and long association with members of the Force, promote this man and give him a chance to prove whether or not he is capable of winning the affections of his compatriots were seniors and associates before presuming that they would make it hard for him to succeed in the position. Should he fail, then you would have something to sing about, then you would have a reason for bringing into the Colony your Palestine Lance-Corporal, who for the most part of all he would bring with him would be a strange accent and a riding-suit, to be taught among other things his job by the local unfortunate junior N. C. O.
I earnestly hope that the representatives of the people will take this matter seriously, keeping before them the fact that they themselves are Barbadians and not members of the Palestine Police Force.
Thanking you for space,
I am, Sir,
Very sincerely yours,
A BABADIAN.
26th March 1943.
Trinidad."
To this the respondent and his brother officer took exception, conceiving it to be aimed at them as the only two Police Officers in Barbados who had previously served in the Palestine Force. They consulted solicitors who, on 15th April, wrote demanding, (1) a full and complete apology to be published in the paper and to be settled by the solicitors; (2) an undertaking to refrain from publishing further defamatory matter of the two officers; (3) a substantial sum for damages and costs. Thereupon the appellants published an apology in their issue for 17th April which though not settled by the respondent's solicitor was in these terms :
"AN APOLOGY
It has been drawn to our attention that a letter appearing in the 'Advocate' of 3rd April under the caption 'Police Officers' has been the cause of considerable annoyance to two of our local Police Officers. We unhesitatingly tender our apologies to these two officers. In the letter referred to the writer belittled the intelligence and efficiency of the majority of the members of the Palestine Police Force whom he had met and we regret that they should have felt that the attack was directed against them.
It is obvious to anyone with a nodding acquaintance with Captain Abraham and Captain Holmes-a'-Court that our correspondent had never met these Officers; who are highly efficient police officers and men of high intellectual attainments respected by all sections of the community not only for these qualities, but for their easy adaptability to local conditions and their eagerness to enter into every phase of social life in the colony."
It was not so long ago that the 'Advocate' in an article in reply to an attack on members of the 'Palestine Police Force' published in the 'Antigua Magnet', stated that, whatever may have been the experience in other colonies the members of that Force transferred to Barbados were intelligent, gentlemanly and efficient officers and a credit to the local force."
Holding the same opinion to-day we again tender our sincere apologies for any inconvenience and annoyance which our correspondent's letter may have caused."
Their Lordships will refer to this apology when they come to deal with the question of excessive damages.
The respective functions of Judge and jury in actions for defamation are well established and were accurately stated by His Honour at the outset of his summing up. The Judge is to say whether the words are capable of a defamatory meaning and are capable of being defamatory of the plaintiff. It is for the jury to say whether they are in fact defamatory and defamatory of him. It was submitted by counsel for the appellants that these words were incapable of defaming the respondent; they were published, he contended, of the Palestine police as a body and not of any individual member or members of that body, least of all of the respondent. Their Lordships need not enter into a full exposition of the law on this matter, as it was the subject of a recent decision of the House of Lords in (1944) 1944 AC 116 : 113 LJ KB 251 : 170 LT 362: (1944) 1 All ER 495, Knuppfer v. London Express Newspaper Ltd. and passages from the speeches were read by His Honour to the jury. It is enough to say that if on a fair construction the words are spoken of a class or body of persons, an individual member of the class or body cannot sue in respect of them unless there are circumstances that show that they may be aimed at him. If they may be in all the circumstances, the Judge must leave it to the jury to say if they are in fact. Among such circumstances may be the smallness of the class referred to, so that it could fairly be said that all its members are aimed at. Here there are but two police officers in Barbados who had previously served in Palestine and the plaintiff is one of them. The letter is written by a person calling himself "A Barbadian", published in a Barbados newspaper in relation to the appointments to the force in that Island of police officers from Palestine. In these circumstances their Lordships are of opinion that His Honour was amply warranted in leaving the case to the jury. He gave them full and clear direction on the matter and there is no ground on which the verdict for the plaintiff can be disturbed. Reluctant as an appellate tribunal always, is to interfere with the amount of damages, it appears to their Lordships that the jury's award is so excessive and unreasonable that it cannot be allowed to stand. While the assessment is particularly within the province of the jury the amount must bear some relation to the damage suffered. Where it is so excessively high or so inadequate as to amount to a wholly incorrect estimation an appellate tribunal will interfere. It is enough to refer to (1913) 3 KB 507 : 83 LJ KB 1 : 109 LT 487, Greenlands Ltd. v. Wilmshurst. at p. 532 and (1935) 1 KB 354 : 104 LJ KB 199 : 152 LT 231, Flint v. Lovell. where the principle is explained. In libel damage is presumed and no doubt punitive or, as they are sometimes called, vindictive damages may be given, but extravagance is not to be permitted. Here there was a prompt apology, full and ample, and containing an appreciation of and testimonial to the respondent. Their Lordships confess to some surprise that after its publication the respondent thought it necessary to bring this action. His brother officer was apparently satisfied, and it is to be observed that in his evidence the respondent stated that money was not his object. Actual damage there was none; for the annoyance, in view of the apology, many would think 100 an extreme limit. Double or even treble it for sympathy, indignation or what you will the result bears no relation to what the jury gave.
Their Lordships are of opinion that this appeal should be in part allowed; that the verdict of the jury and the judgment should be set aside in so far as it relates to the amount of damages, and that there should be a new trial limited to the amount of damages to be awarded to the respondent. As to costs the appellants have failed before this Board in their appeal as to liability, which was the principal subject of the appeal. On the other hand the respondent endeavoured to uphold the amount of damages awarded, and in this he has failed. Accordingly their Lordships think that the proper order should be that the appellants should pay the respondent one-half of his costs of this appeal. The costs of the new trial will be in the discretion of the Judge who tries it. They will humbly advise His Majesty accordingly.
Appeal partly allowed.
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