A a Albery & Sons Ltd and Another v. South China Morning Post Ltd and Others

HCA011812A/1983

BETWEEN

Coram: Hon. Mantell J.

Date of Hearing: 5th April, 1984.

Date of Decision: 5th April, 1984.

Date of Handing Down Judgment: 13th April, 1984.

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JUDGMENT

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1. On 5th April 1984, I dismissed the plaintiffs' motion to commit Robin George Hutcheon for contempt of court with costs. Because time was short, I reserved my reasons to be handed down later. They now follow.

2. The plaintiffs are money changers with a number of premises in Hong Kong. Mr. Hutcheon is the editor of the South China Morning Post. In April and May 1983, the South China Morning Post published a number of articles and letters critical of the plaintiffs' practice of charging 7% commission on transactions in addition to the profit made on the difference in buying and selling prices. In particular, there were a number of uncomplimentary references to the fart that the notice that commission was to be charged was not given sufficient prominence. The plaintiffs took exception to these articles and letters and brought an action for libel against the South China Morning Post, Mr. Hutcheon as editor and the writer of one of the articles.

3. They allege in the Statement of Claim that among other things the words published mean that the plaintiffs have deliberately tripped or trapped the public and that their practice is dishonest and outrageous. By their Defence, the defendants put forward, inter alia, a plea of justification; but they deny that the words used bore or intended to bear the meanings attributed to them.

4. In December 1983 after the filing of the Defence, the South China Morning Post published two further letters which categorize the plaintiffs as cheats and swindlers. Those words, I accept, could well impute criminal conduct. No proceedings have been commenced in relation to these later publications, save that the plaintiffs took out a summons to prevent by injunction the defendants from further publishing words of the same kind. In a supporting affidavit, one of the matters relied on was the fact that such further publication might prejudice the fair trial of the pending action.

5. On 17th February 1984, the application was heard by Power J. who dismissed it with costs. The next day a temperately worded report of the decision appeared in the South China Morning Post. The plaintiffs lodged an appeal against the decision of Power J. which has now been abandoned as not having any reasonable chance of succeeding.

6. After the dismissal of their application for an injunction, the plaintiffs attempted to interest the Attorney General in taking proceedings for contempt. They brought to his notice the two letters published in the newspaper during December 1983 and the fact that there had been publication of a report of proceedings in chambers which they suggested in itself amounted to a contempt. On 30th March 1984, the Attorney General wrote to the plaintiffs stating that in his view it was not an appropriate case to bring to the attention of the court. Before receiving that reply, however, and perhaps anticipating its contents, the plaintiffs had filed on their own account the notice of originating motion with which I have been concerned. In it, they complained of the two letters and the report of the proceedings in chambers. Before me, Mr. Kaplan very properly abandoned the suggestion that the report of the proceedings before Power J. amounted to a contempt.

7. Where justification is raised in a Defence to an action for defamation, the court will not in the ordinary way restrain re-publication of the words of which complaint is made. That was the view of Power J. to which he gave effect in dismissing the plaintiffs' application and it is founded upon a line of authority of which I need only cite the case of Thomson v. Times Newspapers Ltd.⁽¹⁾ and in particular the words of Salmon L.J. as they appear at page 651:

"It is a widely held fallacy that the issue of a writ automatically stifles further comment. There is no authority that I know of to support the view that further comment would amount to contempt of court. Once a newspaper has justified, and there is some prima facie support for the justification, the plaintiff cannot obtain an interlocutory injunction to restrain the defendants from repeating the matters complained of. In these circumstances it is obviously wrong to suppose that they could be committing a contempt by doing so. It seems to me to be equally obvious that no other newspaper that repeats the same sort of criticism is committing a contempt of court. They may be publishing a libel, and if they do so, and they have no defence to it, they will have to pay whatever may be the appropriate damages; but the writ does not, in my view, preclude the publication of any further criticism: it merely puts the person who makes the further criticism on risk of being sued for libel; and he takes the same risk whether or not there has been any previous publication. I appreciate that very often newspapers are chary about repeating criticism when a writ for libel has been issued because they feel they are running some risk of being proceeded against for contempt. Without expressing any final view, because the point is not before this court for decision, I think that in this they are mistaken. No doubt the law relating to contempt could and should be clarified in this respect."

Of course, that decision and Salmon L. J. 's words must be read in the light of the leading authority of Attorney General v. Times Newspapers Ltd. ⁽²⁾ and the various passages in the speeches of their Lordships to which Mr. Kaplan has invited my attention, and also with regard to the fact that the considerations on a motion for contempt are not identical to those which the court has to look at on an application for an injunction. But it would be surprising indeed if the application of relevant principles led in each case to a different result. In my judgment, prejudice of the fair trial of the action is a relevant consideration on an application to restrain publication of an alleged libel as no less is the fact that justification has been pleaded on a motion for contempt of court. It is difficult to see how the minds of the jury could be affected in such a way as to prejudice the fair trial of the action by the reading in the defendant's newspaper the very words which are complained of in the Statement of Claim, are sought to be justified in the Defence and are to be asserted to be true at the trial. Mr. Kaplan, who, if I may say so, argued an unmeritorious case with considerable skill and restraint and who conceded at the outset that this never was a contempt for which imprisonment would lie, has a subsidiary submission. He says that the words used contain an allegation of criminal conduct which is not justified in the Defence, though of course, it is the plaintiffs' case that the original application did convey that meaning. But I am told by Mr. Ching that if action were to be brought in respect of those later publications, the defendants would seek to justify them. If there ever was anything in the point, that seems to me to be the end of it.

8. I shall say a word or two about costs. The most stringent order which can be made is one for costs on the solicitor and own client basis. Next comes an order for costs on an indemnity basis. The difference is well explained by Sir Robert Megarry in a recent English decision.⁽³⁾ Mr. Ching asked for costs on a common fund basis with discretion to the taxing Master under O.62 r.32(2). In the circumstances, it was a moderate application. As against an order for costs taxed on a common fund basis simplicitier, it may produce a slightly more generous taxation and should do so as against an order for party and party costs. I thought it right to make the order asked for but I made it clear that in so doing, I did not intend to imply any criticism of the plaintiffs for having brought or continued their notice of motion.

(1) [1969]3 All E. R. 648

(2) [1974] A. C. 273.

(3) E.M.I. Records Ltd. v. Ian Cameron Wallace Ltd. & anothers /1982/2 AIIE. R.P.80

Representation:

N. Kaplan, Q.C. & S. Westbrook (Robertson, Double & Boase) for Plaintiffs. C. Ching, Q.C. & W. Stone (Deacons) for 2nd Defendant.