Robin Miles Bridge v. Wai Kin-bong and Another
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HCA006588/1983 Action No. 6588 of 1983 DEFAMATION: In an action for libel the defence provided by Section 4 of the Defamation Ordinance is not available to the proprietor or the editor of a newspaper unless the payment into court by way of amends is expressed to be made as such and is sufficient to compensate the plaintiff for his injury. Action No. 6588 of 1983 IN THE HIGH COURT OF JUSTICE BETWEEN
_______ Coram: Hon. Mantell J. Dates of Hearing: 21st and 22nd February, 1984. Date of Delivery of Judgment: 24th February, 1984. ___________ JUDGMENT ___________ 1. This is a libel action which has been tried without a jury. The plaintiff is a solicitor and was a partner in Deacons. The defendants are the proprietor and the editor of Chinese language newspaper. 2. On 4th May 1983, the defendants published a report in their newspaper the English translation of which reads:-
The truth of the matter was that the plaintiff had been restrained from acting for a period of five years from the date of his leaving Deacons for any person, firm or company who had been a client of that firm within the previous three years. The injunction granted on 1st March 1983 by Mr. Justice Hunter and upheld by the Court of Appeal. was in support of a barring out provision in the plaintiff's partnership agreement. In parenthesis, I might mention that the question of whether or not the covenant is enforceable has since gone to the Privy Council whose advice is awaited. 3. The plaintiff does not read Chinese and got to hear of the report through a member of the Bar. It made him very annoyed. They are not his words but it added insult to the injury suffered in the Courts. He instructed solicitors to write to the editor. They did so on 6th May 1983. They demanded the publication of an apology in agreed terms and substantial damages and costs. They said that the article was clearly highly defamatory of the plaintiff who "is currently (without being in breach of any court order) engaged in private practice on his own account". On 12th May 1983, solicitors for the defendants wrote back enclosing an extract of that day's edition of the paper said to amount to an apology. The entry had been given at least equal prominence as the offending article and was in somewhat bolder type. In translation it reads: " NOTICE OF CORRECTION & APOLOGY
No complaint was ever made as to the adequacy of the apology and the next thing to happen was the issue of the writ. 4. The Statement of Claim alleges in paragraph 5 that the ordinary and natural meaning of the article complained of is That the plaintiff has been ordered not to practise as a solicitor either as a partner of any solicitors firm or as a sole proprietor. Paragraph 5a pleads further and in the alternative that the words mean that the plaintiff had been suspended and/or struck off by order of the court because he had continued to act for clients of Deacons after leaving the firm. Paragraph 5 is admitted and paragraph 5a is denied. It is not denied that the words are defamatory and, indeed, in the course of argument it was conceded by Miss Pinto that they are, though in what sense she did not say. The defence rests upon Section 4 of the Defamation Ordinance which is similar in terms to that provided by Section 2 of Lord Campbell's Act. Section 4 provides:-
There is no question of malice, so the first question I have to answer is this: was the libel inserted without gross negligence? The 1st defendant, the editor, told me that the copy came from a news agency specialising in Court reporting. Every Chinese language newspaper uses them and his paper had done so for 23 years. In the past, they had proved to be thoroughly reliable. The report came in too late in the day for him to be able to check its accuracy if it was to be included in the morning edition, though had it come in during the day, he would have checked it out by some means of which he was not entirely clear and no more am I. But I must take it that there is a system for confirming the accuracy of Court reports which in a case such as the present could have been resorted to if the 1st defendant had been prepared to delay publication for 24 hours. That he was not prepared to do, though he took the precautionary step of omitting all reference to the plaintiff by name and some material which he considered to be damaging. In the past, judges have stepped around the question of what is gross negligence. See the judgment of Lord Justice Andrews in Bell & Another v. Northern Constitution Ltd.(1) and that of Mr. Justice Scholes in Tsui Man Yeuk v. Ling Ai Ming & others(2) and, save in one Canadian case, as far as I know a judicial definition has never been attempted. The one case to which I have been referred is Allan v. Bushnell T.V. Co. Ltd.(3) in which the Ontario Court of Appeal quoted without adverse comment the trial judge's direction that what must be proved is the absence of "very great negligence". In another context, of course, "gross negligence" and "culpable negligence" are inter-changeable. For my part, I cannot see that the epithet is to be ignored, nor do I think that as used in this Ordinance to impose a burden of proof upon the defendants that it can be merely vituperative. If, as I would hold, "actual" must be taken to qualify "malice" and "full" to qualify "apology" so too must "gross" be taken to indicate the degree of negligence to be disproved. To my mind it connotes something more than carelessness or inadvertence and if I am forced to grasp the nettle I should say that it means flagrant or glaring negligence. In this case, it does not matter because I am satisfied that the defendants were not guilty of negligence at all. Mr. Wai relied upon an agency which had never let him or his predecessor down in 23 years. The report itself was not such as should have excited scepticism in a non-lawyer and it is not suggested that the paper ought to have employed a libel reader. At the highest, it was put that Mr. Wai ought to have delayed publication and made a check the following day by whatever unspecified means he was referring to in his evidence. I think that is a quite unrealistic suggestion. This was a newspaper office. The editor had to balance his responsibility to his employers and the public to deliver the news against the negligible risk that the news agency might have got it wrong. This is not a case in which the slur is blatant or even obvious and as to which I shall have more to say. I am satisfied that the defendants were not negligent at all, let alone grossly negligent. 5. Next, the defendants have to prove that they inserted a full apology either before the commencement of the action or at the earliest opportunity afterwards. Mr. Garland submits that to be full, the apology must include a retraction. He cites Bramwell B. in Lafone v. Smith & others,(4) where, dealing with Lord Campbells Act, he states that the apology must be effectual to counteract the mischief which the injurious statement is supposed to have done and he, Mr. Garland, criticises the apology in this case for not setting the record straight. He says that it should have set out the actual terms of the order made by the Court rather than make a general retraction. I do not agree. The reparation required of the apology is for the injury done to the plaintiff's reputation, not to some abstract notion of truth. If the retraction goes too far, it is the defendants' readers who have the right to complain not the plaintiff and I note as I did earlier that before this hearing no complaint was ever made by the plaintiff as to the adequacy or otherwise of the apology published in the newspaper. Mr. Garland says further that the wording of the apology is ambiguous leaving open the possibility that the retraction was only as to the length of time for which the plaintiff was prevented from practising. That could be right I suppose if one views it in the same way as a traverse in a pleading but in my opinion it is a completely artificial approach and not likely to be adopted by any reader of the newspaper or, indeed, by any jury. In my opinion, the apology was timely, full and effectual so far as any apology ever could be to undo the harm which may have been done by the original article. 6. For the defence under Section 4 to be available, the defendants must show that they have made a payment by way of amends. There is not much authority on the point though the industry of counsel has produced a decision of the New South Wales Court of Appeal.(5) But commonsense requires, as did the old practice, (as to which see Lafone v. Smith & others) that the payment into Court should be a sufficient sum to compensate the plaintiff for his injury. Although formerly the jury was told the amount of the payment in and asked to decide on its sufficiency, the more recent and, I think, better practice has been to ask the jury to state what is a sufficient sum before making known to them the amount for payment into Court. With the agreement of counsel that is what I propose to do, and it is also agreed, I believe, that in the circumstances of this case a sufficient sum by way of amends is going to be the same amount as the damages recoverable in the event of the defendants failing to establish the statutory defence. It is unfortunate in this case that a sum has been referred to in one of the agreed documents but I shall have no difficulty in putting that out of my mind. 7. In tackling the question of compensation be it for damages or by way of amends I have regard to the approach of Mr. Justice Windeyer(6) which was cited with approval by the Lord Chancellor in Broome v. Cassell & Co.(7) :
So it seems to me that the first matter to consider is the nature of the libel itself. That the report was inaccurate and possibly damaging in the same way as an untrue announcement of retirement from practice would be is not and cannot be contested. But wherein lies the attack on Mr. Bridge's reputation? The words "suspended and/or struck off" in paragraph 5a which came in by re-amendment during the hearing and which were at first unwisely admitted by Miss Pinto and might suggest to anyone familiar with the legal profession that Mr. Bridge had been guilty of some unprofessional conduct are not relied upon by Mr. Garland for the plaintiff, and as well not for the report could not conceivably be read as meaning that the plaintiff had suffered a suspension from or striking off the roll. But once that suggestion is discounted what is left? I cannot see that anyone reading the words in context could conclude that the order not to practise was any other than as a result of the injunction proceedings and untrue though it was and damaging though it might have been, the words do not seem to inflict any greater injury upon the character of Mr. Bridge than would have been occasioned by a totally accurate account. Indeed were it not for the admission, and had the issue been left to me, I seriously doubt whether I would have found that there had been any libel. It is, I think, put at its highest and best in the solicitors' letter written immediately after the offending article appeared. Some people might have thought that Mr. Bridge was continuing to practise in defiance of a Court order or even, and at a considerable stretch, that he had been practising since and in defiance of the decision of Mr. Justice Hunter. But however I view it and doing the best I can to see it through Mr. Bridge's eyes, it seems to me that the defamatory content of the article is minimal. 8. I have also to take account of what I have held to be a full apology published eight days later and the fact that similar articles appeared concurrently in several other newspapers, and also that by virtue of Section 17 of the Ordinance as explained by Lord Reid in Lewis v. Daily Telegraph(8) that he plaintiff has already received $35,000 in settlement of a claim or claims, and that there are actions against other newspapers pending. I have regard to the fact that the plaintiff was not named and would not be identified by more than a small proportion of the readership of whom many would be sufficiently well informed to know that the report was inaccurate. At the same time I do not forget that in the case of a serious libel great damage can be done by very limited publication. I take care to distinguish between damage done to Mr. Bridge by reason of the defamation and damage which might flow solely from the inaccuracy of the report and taking all those matters into account and doing the best I can to put myself in the position of a jury, I think that the appropriate award of damages or sum by way of amends will be the nominal one of $1,000. Judgment interrupted for further argument 9. I have now been shown the Notice of Payment into Court and have heard further argument both on the question of where judgment should lie and also as to costs. The defendants paid the sum of $5,000 into Court on 13th July 1983. The Notice is in these words:
Thus, on the face of things, it appears to be no more or no less than a payment in under Order 22. Now, the defence did not allege that there had been any payment in under Section 4 of the Ordinance until the first day of the hearing when leave to amend was given. In my judgment, notwithstanding the fact that the sum paid into Court would be sufficient by way of amends if so expressed, the fact that the payment in was made without it being so stated is fatal to the defendants' statutory defence. Consequently, there will be judgment for the plaintiff in the action in the sum of $1,000. The payment into Court is good under Order 22 and consequently, the plaintiff will have costs up to the date of payment in and the defendants' costs thereafter. Consequently, as I understand the authorities, and I hear no submission to the contrary, there must be an order for payment out to the plaintiff's solicitors of the sum of $1,000 and to the defendants' solicitors of the sum of $4,000 making up the total of $5,000 in Court.
(1) [1943] K.S.D. 108 at p.113 (2) [1965] H.K.L.R. 7 at pp.19 & 20 (3) [1969]4 Dominion Law Reports (3d) 212 (4) [1858] Michaelmas Term Vol.28 33 (5) Levien v. Fox [1890] N.S.W.R. 414 (6) Uren v. John Fairfax & Sons Pty. Ltd. 117 C.L.R. 115, 150 (7) [1972] A.C. 1027 at p.1071 (8) [1964] A.C.234 at p.261 P. Garland instructed by Robin Bridge & John Liu for Plaintiff. Miss J. Pinto instructed by Kwan & Kwan for Defendants. Action No. 6588 of 1983 Date of Delivery : 1st March, 1984. 10. On reading the transcript of the judgment which I delivered last Friday, I see that I did not, as I promised and intended, deal with my reasons for allowing Miss Pinto to amend her defence by withdrawing an admission to paragraph 5a of the Re-amended Statement of Claim. I thought I had, though Mr. Garland, as it has turned out quite rightly, and very courteously raised the matter at the time. I owe Mr. Garland an apology and since the exercise of my discretion may be called in question, I have thought it right to call back counsel to state my reasons now. 11. Paragraph 5a came in by way of re-amendment during the first day of a two-day hearing. The matter was, I think I remember rightly, ventilated during the opening. Miss Pinto amended her defence to admit paragraph 5a even though at the time I gave her an opportunity to consider the matter. It was, I have held, an unwise admission and the following day during the course of her submissions, I gave her leave to amend by withdrawing that admission notwithstanding Mr. Garland's protest that by that time he was unable to call evidence to substantiate the allegation. I took the view that the ordinary and natural meaning of the words was a matter for the Court which would be unlikely to be assisted by evidence on that question and further that the words could not possibly bear the meaning attributed to them. In any event, as to the calling of evidence, Mr. Garland could not point to any witness which he had in mind to deal specifically with that question, it having been his intention as he told me in the course of his opening to rely solely on the evidence of the plaintiff. Nor, at the time of the application to amend and the giving of leave, was any application made, albeit at a very late stage in the proceedings, for leave to call further evidence. In those circumstances and bearing in mind what I considered would be the unfairness to the defendants of deciding the case on the basis of a quite unrealistic admission, I exercised my discretion as I did. 12. By consent, no order as to today's costs.
Representation: P. Garland instructed by Robin Bridge & John Liu for Plaintiff. Miss J. Pinto instructed by Kwan & Kwan for Defendants. |