The plaintiff in thiscase is a well-known amateur golfer. The Defendants are manufacturers of chocolate in various forms.
In the month of June 1928, the Defendants published in the Daily Sketch and Daily Mail, newspapers enjoying a large circulation in London and the provinces, a caricature of the Plaintiff which represented him in golfing costume having just completed a drive, with-a packet of the Defendants' chocolate pro truding from his pocket, in the company of a caddie who is holding up packets of the Defendants' chocolate; below the caricature was a limerick in the following terms:
The caddie to Tolley said, Oh, Sir, Good shot, Sir! That ball, see it go, Sir,My word how it flies, like a carted of Frys,They're handy, they're good, and priced low, Sir."The caricature and the limerick were surrounded with descriptions of the merits of the Defendants chocolates, and the whole was plainly advertisement of the Defendants goods.
The Plaintiff thereupon brought this action for damages for libel. He did not complain of the caricature or the words as being defamatory in themselves; but the innuendo alleged that the Defendants meant and were understood to earn that the Plaintiff had agreed or permitted his portrait to be exhibited for the purpose of the advertisement of the Defendants' chocolate, that he had done so for gain and reward, that he had prostituted his reputation as an amateur golf-player for advertising purposes, that he was seeking notoriety and gain by the means aforesaid, and that he had been guilty of conduct unworthy of his status as an amateur golfer.” At the conclusion of the Plaintiff's, case, the Defendants submitted that there was no case to go to the Jury; the Judge overruled this contention and the Jury found a verdict for the Plaintiff for Â£1,000 damages. From this decision the Defendants' appealed, asking for a new trial on the grounds that the damages were excessive, and further asking for judgment on the ground that the Judge ought to have ruled that there was no case to go to the Jury. The Court of Appeal came to the conclusion that the damages were excessive, and that there ought in any event to be a new trial on that ground; but the majority of the Court further held that there was no case to leave to the Jury and accordingly directed that judgment should be entered for the Defendants. From this latter decision the present appeal is brought to your Lordships' House.
My Lords, from the foregoing narrative it is plain that in order to succeed, the Plaintiff must satisfy the Jury that the publication complained of was capable of some, at least, of the meanings attributed to it in the innuendo, and that those meanings were defamatory.
The oral evidence adduced by the Plaintiff, apart from his own testimony, was that of a Mr. Storey, an eminent amateur golfer and Mr. Hobson, a Secretary of two well-known golf clubs. Mr. Storey said If an amateur golfer lent himself to a scheme for advertising, a great many people would think he was not maintaining his amateur status. It would damage his reputation as an amateur golfer. Mr. Hobson said, “If an amateur lent himself, as a golfer, to the advertisement of people's goods, I think he would be called on to resign the membership of any reputable club. No evidence was called to contradict this testimony; and it seems to me that if the Jury accepted that evidence, they were bound to reach the conclusion that if the publication conveyed the meaning that, the Plaintiff had lent him- self to the Defendants' advertising scheme, it was defamatory. There remains, however, the question whether the publication was capable of bearing that meaning. If it was capable of such a meaning, then it seems to me that the Judge was bound to leave the case to the Jury. The case is unusual in that the defamatory innuendo does not depend upon the words used of the Plaintiff, but solely upon the circumstances in which the publication takes place. The argument for the Defendant was that there was no evidence called to prove that well-known persons were in the habit of allowing their names to be used for advertising purposes, and that in the absence of such evidence a Jury could not be allowed to reach the conclusion that the publication impliedly represented that the Plaintiff had given such permission.
I gravely doubt whether any such evidence was necessary. The question here does not depend upon a state of facts known only to some special class of the community, but to the inference which would be drawn by the ordinary man or woman from the facts of the publication. It is always difficult to determine with precision the amount of judicial knowledge which is permissible to a Judge or Jury; but I am not satisfied that it would not be open to a Jury acting on their own knowledge as ordinary citizens, to assume that no reputable firm would have the effrontery and bad taste to take the name and reputation of a well-known man for an advertisement commending their goods without first obtaining his consent. But if evidence was necessary, I think it is to be found in the correspondence between the Defendants and their Advertising Agency, which was put in at the trial. No objection was taken either in the Courts below or at the Bar of your Lordships' House, to the admissibility of this correspondence as a correct statement of the opinions of the writers. From this correspondence it appears that about six months before the date of the publication complained of, the Defendants had been considering the possibility of using the names of a number of well known men and women in various walks of life, to commend: their goods and advertise their merits. Apparently they had been conscious from a very early date that some of the persons with whom they were proposing to take this liberty, would be likely to object; and Counsel's opinion was taken as to whether each individual caricature could be regarded as libellous. The Defendants expressed themselves as unwilling to allow their Agents to ask the consent of the persons whose names they were proposing to use because, as they said, they felt that this was “rather bad form." Why it should be regarded as bad form to ask the consent of any individual to the use of his name in this manner, and yet unobjectionable to use his name without his consent, I am unable to understand. However, from the correspondence it appears that a number of the proposed caricatures were ruled out as being libellous, but that the caricature of the Plaintiff was passed by Counsel as not being in itself defamatory.
Whilst this correspondence was proceeding, there was a suggestion that Mlle. Suzanne Lenglen's caricature should be used in the course of the campaign. Mlle. Suzanne Lenglen is a well known professional lawn tennis player. Early in June 1928, the Defendants suggested that Mlle. Suzanne Lenglen should be omitted and that either Miss Helen Wills or Miss Betty Nuthall should be substituted. Miss Wills and Miss Nuthall are well-known amateur lawn tennis players. To this suggestion the Defendants' Advertising Agents replied on the 4th June in the following terms:—
You return the Suzanne Len glen lay-out with the suggestion that we should feature either Helen Wills or Betty Nuthall instead. We feel that there are several, things which make this undesirable. Firstly, both Betty Nuthall and Helen Wills are amateurs, and in tennis circles even more than in golf circles the amateur status must be very carefully guarded, hence if Cyril Tolley has any quarrel with us, it is more than likely that both Helen Wills and Betty Nuthall would be upset at our caricaturing them for advertising purposes."
It seems to me that this letter is a plain intimation by the Defendants' own Advertising Agents that the natural result of using the names of these two ladies for the purpose of the Defendants' advertising campaign would be to impugn their amateur status, and that for this reason it would be undesirable to use their names, although it would be safe to use that of Mlle. Lenglen, who is a professional. This can only be on the ground that the inference which would naturally be drawn from the appearance of such an advertisement would be that the persons whose names were used had consented to their use and had consented on such terms as were inconsistent with their position as amateurs.
I think the Jury were entitled to take this letter into account in determining what was the natural inference to be drawn from the publication complained of, and that there is to be found in this letter evidence entitling the Jury to hold that the publication of the Plaintiff's name as part of the Defendant's advertising campaign, did imply to the ordinary reader that the Plaintiff had lent himself to the Defendant's advertising scheme. If so, there was a case to go to the Jury; both sides are agreed that the summing up was not open to criticism, and the finding in favour of the Plaintiff ought not, therefore, to bedisturbed.
As to the damages, there has been no appeal from the decision of the Court of Appeal that these were excessive, and that a new trial is necessary. Whether or not the new trial should be limited to the question of damages, or whether it; should extend to a re-trial of the whole case, is a matter of discretion. I cannot see in the facts of this case any ground for saying that the amount of the damages awarded is so excessive as to warrant the inference that the Jury took a biassed or mistaken view of the whole case. The imputation against the Plaintiff was a most offensive one; it was given the widest possible publicity; when, the Defendants were given an opportunity to apologise and to contradict the imputation that the Plaintiff had consented to the use of his name, they refused to avail themselves of it; and I think that the case is one in which a Jury might properly give very substantial damages. I accept the decision that Â£1,000 is too much, but unless your Lordships are prepared to hold that in every case in which excessive damages are given there must be a re-trial of the whole case, I cannot see in the present case any sufficient ground formaking such an Order. In my opinion the new trial should be limited to the assessment of damages.
With regard to costs, the Plaintiff must have the costs of the trial; in the Court of Appeal the Defendants succeeded in their motion for a new trial, and in the result failed in their motion for judgment: I think each party should bear his own costs of that appeal. The Plaintiff has succeeded in his appeal to your Lordships' House, and the Defendants must pay the costs.
I move, your Lordships, accordingly.
The sole question raised by this Appeal is whether the case ought to have been withdrawn from the jury by the Judge, and judgment entered for the Defendants.
It has been stated again and again and is not in dispute that the question for the Judge is whether the writing or publication complained of is capable of a libellous meaning. It is for the jury, if the Judge so rules, to say whether it has that meaning:
The most authoritative pronouncement on actions of this sort because it is a judgment of this House, is to be found in the case of Capital and Counties Bank v. Henty 7 App. Cs. 741.Both parties in this ease have appealed to it as an authority in their favour. My Lords, I think the ruling canon in that case is to be found in the judgmentof Lord Chancellor Selborne. That was a case where as here the mere words used were not libellous. But Lord Selborne then proceeded to enquire what were the circumstances under which the document was published. In that case he held the circumstances did not and could not lead to any libellous imputation. The circular was directed to Henty's customers alone, and there were quite innocent reasons which would justify the circular. But he pointedly said that if the circumstances had been otherwise, if the circular had been placarded up or published to the world at large the effect might have been quite otherwise.
Now applying this method of reasoning to the present case I find that the caricature of the Plaintiff, innocent itself as a caricature, is so to speak embedded in an advertisement. It is held as part of an advertisement so that its presence there gives rise to speculation as to how it got there, or in other words provokes in the mind of the public an inference as to 'how and why the Plaintiff's picture, caricatured as it was, became associated with a commercial advertisement. The inference that is suggested is that his consent was given either gratuitously or for a consideration to its appearance. Then it is said, and evidence on that point was given, and not cross-examined to, that if that were so the status of the Plaintiff as an amateur golfer would be called in question. It seems to me that all this is within the province of a jury to determine. The idea of the inference in the circumstances is not so extravagant as to compel a judge to say it was so beside the mark that no jury ought to be allowed to consider it.
My Lords, I come to this conclusion on a consideration of the advertisement alone, explained with the evidence of the golf players and the golf secretary. There are here two separate propositions: (1) would the caricature associated with the advertisement admit of a reasonable inference that the Plaintiff had assented to be so depicted. That depends on the view taken of the picture, of its surroundings, and of its use. (2) If that inference were drawn would it be deleterious to the Plaintiff's position as an amateur golfer, and to do him harm. That depends on the evidence of the golfers. A great deal of argument was directed to the terms of the letter of June 4th, which has been quoted by his Lordship onthe Woolsack. I do not consider that to be material to the question before us. It may well have influenced the jury in coming to the verdict they did, for to my mind it shows clearly that the general proposition that amateur status might be called in question by association of an amateur with an advertisement was well before the eyes of the Defendants and their advisers. But we are not concerned at present with the justice of the verdict, only with the question of whether there was a case for the jury to consider. I agree with the motion proposed.
Lord Buck master
If the advertisement the subject of the alleged libel were issued with the assent of the Appellant the evidence of Mr. Storey and Mr. Hobson shows that such conduct would seriously injure his position in golf clubs and as an amateur golfer. This evidence was not made the subject of challenge by cross-examination nor of dispute by rival evidence and indeed is in agreement with common experience.
The whole question therefore is whether the advertisement it self is capable of the inference that such assent either voluntary or for reward had been obtained before its publication.
Upon the face of it there is no statement to that effect and evidence to show that such was the reasonable inference was I think rightly rejected, for if admitted on one side evidence to contradict it must equally have been admitted on the other. The question therefore is whether the Judge was bound to say that the publication was incapable of this meaning. I do not think that he was. All the circumstances of its issue must be considered and the first is that the picture is not a mere caricature it is an advertisement, and it seems to me the question of whether a well-known and respectable trader would be assumed to have the effrontery to use a man's portrait and his reputation to advertise their goods without his assent is exactly the class of question on which the opinion of a jury might well be invoked. If one man calls another a thief without more it might be mere vulgar abuse and not actionable, but if there are circumstances from which it might properly be inferred that, goods having been stolen, the man of whom the words were spoken was pointed to as the thief the words at once become actionable and it would be open to the jury to consider whether in the circumstancesthat was their true meaning.
In this ease there is also some further help to be obtained from letters that passed between the Defendants and the advertising agents. The letter referred to by Lord Justice Scrutton of the 4th June 1928 is certainly very significant. There hail been a suggestion made that Miss Helen Wills or Miss Betty Nuttall should be substituted for an advertisement of which Miss Lenglen was the principal figure. The Agency points out that this is very undesirable for the following reasons: —" Firstly both Betty Nuttall and Helen Wills are amateurs and in tennis circles even more than in golf circles the amateur status must be very carefully guarded, hence if Cyril Tolley has any quarrel with us it is more likely that both Helen Wills and Betty Nuttall would be upset at our caricature ing them for advertising purposes." It is impossible to read this letter without realising that the Advertising Agency were well aware that such advertisement might affect the amateur status of people both in golf and in tennis circles, and it is obvious that this can only happen if the advertisement suggested that the persons caricatured had assented to its publication. It is also worthy of notice that in the letter of the Plaintiff's Solicitor of the 14thMarch 1929 after the proceedings had been started, an offer was made in the following terms:—
That if your clients will publish, in the same newspapers as the advertisement complained of, appeared, a statement that such advertisement was inserted without Mr. Tolley’s knowledge or assent, and that he, Mr. Tolley, received no payment directly or indirectly for the use of his name, our client will then be prepared to agree to an order staying proceedings, the defendants paying the taxed costs up to date."
To which the Solicitors for the Respondents replied offering a limited publication of a statement to the effect that the Plaintiff had received no remuneration and adding that no one could think that remuneration had been paid. But they made no reference whatever to the suggestion that they should say the advertisement was without Mr. Tolley's knowledge or assent. The Plaintiff's Solicitor again wrote on the 14th May and referred only to the question of remuneration, but their first letter was explicit, and the refusal to accept the statement lent strong colour to the suggestion that the publication in itself suggested assent, and that the Defendants were not particularly willing to let the world know that such assent had not been obtained. The evidence to which I have referred does not depend upon the receipt of money, but on the fact that an amateur had lent himself to the advertisement of other people's goods. I think, therefore, there was sufficient for the Jury to consider, and if that be so, their verdict, excepting as to amount, is unassailable. Upon this latter point the Court of Appeal have held that the damages are so unreasonable that on this ground alone a new trial is justified. This conclusion has not been made the subject of appeal and upon that head, therefore, the new trial must be held, though I do not think it right that it should be assumed that the damages ought to be nominal or trivial. Substantial wrong has been done to the Plaintiff and not one which is technical and insignificant.
In this case, with no sympathy whatever for the Respondents in the predicament in which they have become involved, I agree with Lord Justice Greer and Lord Justice Slesser. The Appellant, in my judgment, failed at the Trial to bring home to the Respondents any actionable wrong. He made no case against them fit for the consideration of the Jury. At the close of the evidence it had become apparent as it seems to me that the only reputation blunted by the publication of this caricature was that of the Respondents responsible for it.
The Appellant in his evidence stated that he did not find any- thing offensive in the picture. Presumably that was his impression all along. It surprises me, but it suggests a sufficient explanation for these proceedings. Just because the Appellant deemed the caricature inoffensive, so also might he suppose that the golfing1 world when they saw it would be tempted to conclude that he had consented to it, if no more. Hence this action.
The Respondents' advisers must have been strongly tempted to challenge at the Trial this charitable view of their clients' work. Challenge was so easy. But of course there were difficulties in their way and the forensic temptation was resisted. They did not contest the Appellant's view of their clients' advertisement. But never-the less that view was, I am convinced, profoundly mistaken. Lord Justice Scrutton's description of this thing is surely not a whit too severe. The caricature is a piece of offensive vulgarity, so vulgar indeed and this is to my mind the fatal obstacle to the Appellant's success in these proceedings that it is almost beyond reason that anyone knowing anything of the Appellant as he and his record were disclosed at the Trial could for a moment have supposed or even suspected that he had had anything whatever to do with its publication. That publication was surely only another instance of the toll levied on distinction for the delectation of vulgarity.
And if the Appellant's dissociation from the publication was thus apparently complete (and no witness was called to contest that view or to affirm the contrary), then the Appellant's case as hitherto presented by him is at an end. For it is admitted that the caricature vulgar though it be is not in itself actionable.
Had its subject been a distinguished statesman it seems to be agreed that it would have remained innocent. So I suppose, if a great scientist or a scholar or a captain of industry had been enlisted, in like manner, into the service of chocolate. But it is, so it is suggested, defamatory of the Appellant because he is a prominent amateur golfer. Upon him the caricature is a serious libel actionable as such. One naturally asks why. It seems anomalous that for some hidden reason it should be defamatory of a man in that character, while it would have remained legally harmless at the instance of these other persons not less well known and eminent. And the question is searching because it has met with what I cannot help thinking is a somewhat confused answer. It is defamatory of the Appellant, so it is said, because it is a publication calculated to imperil his amateur status. Again one asks why, and the answer is becauseit imports that he consented to its publication or was paid to allow it—and expert evidence is called to show that if such had been the fact he would have forfeited his amateur status and might have been required to resign from the golf clubs to which he belongs. The answer seems inconclusive, if not irrelevant. The fact that the consequences to an amateur golfer would have been so immediate and serious seems to supply a convincing reason why consent to such a publication should of all men not be imputed to him. And if the expert evidence was called for the purpose of quantifying damage, how irrelevant it was to the case then being presented by the Appellant. Why, he actually appeared before the Jury as the amateur golf champion in the year succeeding the publication of the caricature. And, further, is it not obvious that no action in relation to his amateur status could have been taken against the Appellant before his conduct in relation to this publication had been challenged by some responsible authority? That it never was so challenged I assume. There was no reference at the Trial to anything of the kind. But if it had been and if in answer he had declared (as I doubt not he would in terms appropriately indignant have declared), that not only had he never consented or been asked to consent to the publication, but that on the contrary he strongly resented the liberties taken with his name and personality, then there could have been no end to the challenge except an apology for having made it. As it seems to me, therefore, on the only case presented by the Appellant, the caricature being per se not actionable, there was nothing left for the Jury to consider.
But my Lords when I find that the Jury awarded the Appellant Â£1,000 damages, when there was, so far as I can see, no evidence, on the case presented, properly to instruct any damages at all, the conclusion is inevitable that, if the Jury were not merely venting their displeasure upon the Respondents, they were considering and adjudicating upon a very different case, not suggested even in the Plaintiff's evidence and in on way proved. And that case was, as I followed learned Counsel, really implicit in his argument at your Lordships' Bar. It may perhaps thus be stated:—
There is a widespread belief, well or ill founded, that amongst some gentlemen cricketers, amateur lawn tennis players, and other amateur athletes, including golfers, a practice obtains to utilize and exploit their amateur status for reward by, for example, assisting advertisement campaigns or pushing by the use of their name and personality the sale of proprietary articles and that the Respondents' caricature was such as falsely to represent to the public that the Appellant was one of these athletes whose amateur status is believed to be a mere masquerade.
Now, I cannot doubt that such an allegation, if made and proved; would have amounted to a serious imputation on the honour of the Appellant, and, not being justified, might well have instructed exemplary damages.
But there is nothing in the caricature itself to suggest all that or any of it. In the old days an averment that the libel was published to people who knew of that belief would have been essential. The legislature has rendered it no longer necessary to set out on the record the facts and the colloquium necessary to support an innuendo: they are now only matter of proof at the trial; but the principle remains. See per Lord Blackburn:
River Wear Com- missioners v. Adamson 2 App. Cas. 743, 763; and see also Capital and Counties Bank v. Henty 7 A.C. 741, 771, 778.
My Lords, there was no evidence at all adduced on this subject. None is supplied, as I read it, by the correspondence to which reference has been made. The Appellant himself was the obvious witness on such a topic, and, while one may respect his reticence upon a matter so delicate, the gratification of a quite natural reserve is not to be purchased at the Respondents' expense. Hadevidence on the subject been tendered, the limits of this alleged belief might through cross-examination have been set. Did it get as far as a vulgar caricature like this; did it go beyond a letter or a photograph, signed perhaps, and in point of attractiveness not more truthful than was necessary? In this matter were amateur golfers ever even suspect? It would have been interesting to ascertain the limits of the alleged belief.
But neither the belief nor its limits were explored or made the subject matter of evidence; and I have, I think, said enough to show that neither could have been within the judicial knowledge of the Judge or within the worldly experience of a Middlesex Common Jury.
If therefore this was the real case on which that Jury adjudicated, such a case was entirely beyond their competence. There was no evidence upon it fit for submission to them for consideration or at all, and I reach from this approach also the conclusion that the Respondents were entitled to judgment.
I would dismiss the Appeal.
The only question in this appeal is whether the learned trial judge was wrong in allowing the case to go to the jury.
The law is not in doubt. It is for the judge to determine whether the writing or picture complained of is capable of a defamatory meaning and in this connection it is to be observed that that which is prima facie innocent may become capable of a defamatory meaning by reason of the circumstances surrounding its publication.
If the judge determines that the writing or picture is capable of a defamatory meaning it is for the jury to say whether it is in fact defamatory.
Here the thing complained of is a drawing in the nature of a caricature of the Appellant a well known amateur golfer with some added letter press and other features establishing the identity of the person represented.
Regarded in vacuo it is admittedly innocent, but the question remains whether it is capable of a defamatory meaning by reason of the circumstances surrounding its publication.
It has been published by the Respondents, a commercial Company, as part of an advertisement used for promoting the sale of their goods.
Having regard to the evidence (apart altogether from the correspondence between the Respondents and their advertising agents) it is not in my opinion possible to say that the matter complained of in the circumstances of this case, and in the environment in which it appeared, might not have given rise in reasonable minds to the inference that the Appellant had assented to this publication. Further there was evidence that such an inference might be harmful to the Appellant in view of his position as an amateur golfer.
My Lords upon this view of the matter I think the trial judge "was right in not withholding the case from the jury and I agree with the motion proposed.