George Bray v.

John Rawlinson Ford

House of Lords; 18 December 1895; [1896] A.C. 44 Lord Halsbury L.C., Lord Watson, Lord Herschell and Lord Shand. 1895 Dec. 18. Libel, Action forMisdirectionNew TrialSubstantial Wrong or MiscarriageRules of the Supreme Court, Order XXXIX. r. 6. In an action for libel the judge misdirected the jury in favour of the plaintiff upon a material part of the libel and the jury gave a verdict for large damages. The Court of Appeal thought that the nature of the libel was such that the jury would have been entitled to give, and would probably have given, the same verdict, even if the direction had been the other way, and refused the defendant's application for a new trial on the ground that in their opinion no substantial wrong or miscarriage had been occasioned by the misdirection, within the meaning of Order XXXIX. r. 6: Held, reversing the decision of the Court of Appeal, that since the assessment of damages is the peculiar province of the jury in an action for libel, and since the jury had not had the defendant's real case submitted to them and might, in assessing the damages, have been influenced by the misdirection, there had been a substantial wrong or miscarriage within Order XXXIX. r. 6 and that there must be a new trial. THE appellant was a governor of the Yorkshire College, of which the respondent was vice-chairman. The respondent had also acted as solicitor to the college and had been paid his charges under the circumstances related in the judgment of Lord Herschell. The appellant wrote a letter to the respondent beginning thus: Sir, during last summer, as you are aware, it came to my knowledge that whilst holding the fiduciary position of vice-chairman of the Yorkshire College you were illegally and improperly, as you know, making profit as its paid solicitor. The letter, which was long, contained comments upon the respondent's conduct, with imputations as to motives and allusions to swindlers, which might be construed as highly libellous. This letter the appellant circulated among the governors of the college and other persons. The respondent having brought an action for libel against the appellant, which was *45 tried before Cave J. and a special jury at Leeds, Cave J. directed the jury that under clause 4 of the memorandum of association of the college the respondent, although vice-chairman, was entitled to receive remuneration for his services as solicitor. 1 The jury returned a verdict for the plaintiff for 600l. The appellant having moved for a new trial on the grounds of misdirection, that the verdict was against the weight of evidence, and that the damages were excessive, the Court of Appeal (Lord Esher M.R., Lopes and Rigby L.JJ.) held that Cave J. had misdirected the jury as to the effect of the clause, but being of opinion that no substantial wrong or miscarriage had been thereby occasioned in the trial within the meaning of Order XXXIX. r. 6, and that the verdict was right and the damages not excessive, dismissed the application with costs. Their Lordships appear to have considered that looking at the nature of the libel, even if the direction had been the other way the jury might properly, and would probably, have given the same verdict. Against this decision the defendant brought the present appeal. Order XXXIX. r. 6 of the Rules of the Supreme Court provides that a new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, unless in the opinion of the Court to which the application is made some substantial wrong or miscarriage has been thereby occasioned in the trial. *46 1895. Dec. 2, 3. Sir E. Clarke Q.C. and BighamQ.C. (Atherley Jones and H. Greenwood with them) for the appellant. The defendant was entitled to have his case put to the jury, but it was not put. An erroneous case instead of the real case was put. The jury were told in fact that it was a libel and they would be justified in giving their verdict upon that assumption. The fact that the Court may think that the result was right is not conclusive on the question of substantial wrong or miscarriage. So to hold would be to substitute the Court for the jury, whose peculiar province it is to assess the damages in an action of libel. No one can say for certain how far the jury may have been influenced by the misdirection which was upon a material point. The judge

having withdrawn the principal part of the defendant's case from the jury, there was a substantial wrong to the defendant and a miscarriage of justice. [They also referred to Jenoure v. Delmege 2; Blair and Girling v. Cox. 3] Sir F. Lockwood Q.C. and Odgers Q.C. (Scott Fox with them) for the respondent. The evidence shewed that the appellant had long had a grudge against the respondent, and the jury manifestly thought that he was actuated by malice, or they would not have given such damages. And the worst part of the libel was not the allegation as to the respondent making a profit as solicitor, but the comments and allusions to swindlers. There is no reason to suppose that even if the direction of Cave J. had been in favour of the appellant the jury would have given smaller damages for a libel so malicious and unfounded. The question whether there has been a substantial wrong or miscarriage is for the opinion of the Court and if the Court consider (as the Court of Appeal did) that the jury would have given, and would have been justified in giving the same verdict, if there had been no misdirection, there ought not to be a new trial. The clause in the memorandum was difficult, of construction and the respondent might well construe it to mean that he was entitled to profit costs. There was not the slightest evidence in support of the appellant's reflections upon *47 the respondent's character: that was the main point, and the question under the clause was of minor importance. [They also referred to Watkin v. Hall. 4] Bigham Q.C. in reply. The House took time for consideration. Dec. 18. LORD HALSBURY L.C. My Lords, in this case, an action for libel, the learned judge directed the jury that the plaintiff, who was a solicitor, was entitled to charge an institution, of which he was himself both occasionally the solicitor and also a governorthat is, a person entrusted with the government and management of the institution in questionthe profit costs which he would have been entitled to charge if he had not filled that character. It is not necessary to consider whether the institution could have given such a consent as would have enabled him to have taken such profit, because I am of opinion that no such consent was, in fact, given; the matter relied upon is absolutely irrelevant to such a question. It cannot now be denied that this was a misdirection. The only question, therefore, which we have to deal with is whether, in the language of the rule applicable to this matter, a substantial wrong or miscarriage has been thereby occasioned at the trial. My Lords, I think there has been a substantial wrong and a miscarriage. I think there has been a substantial wrong, since I think the defendant was not permitted to present his case to the jury with the argument that his original complaint was true. This seems to me a substantial wrong, and I am not prepared to say what a jury might think if they were told that the original complaint was itself unfounded, or if they were told that, though this original complaint was well founded, there was excess in the language by which that original complaint was made; but it appears to me that it was, in this case, withdrawing from the jury a question which the defendant had a right to have submitteda right which was so relevant and important to the discussion that I must say I cannot regard it as *48 trivial or immaterial matter; and I think it was a miscarriage, as this view was not presented to the jury. What influence such a wrong might have had upon the verdict or upon the amount of damages I am not disposed to consider. The case must be tried again, and I desire to say nothing which can in any way influence the arguments upon the trial which must take place. It is nothing to the purpose to say that the rest of the printed matter complained of as a libel would justify a verdict to the same amount of damages. I absolutely decline to speculate what might have been the result if the judge had rightly directed the jury. It is enough for me that an important and serious topic has been practically withdrawn from the jury, and this is, I think, a substantial wrong to the defendant. I do not think it desirable to say what would be my own construction of the rule in other cases not now before me. I am, therefore, of opinion that the judgment of the Court of Appeal should be reversed, and that a new trial should be ordered; and I move your Lordships accordingly. LORD WATSON.

My Lords, I shall endeavour, without recapitulating the facts of this case, to indicate the considerations which have led me to differ from the conclusion arrived at by the learned judges of the Appeal Court. The error committed by the presiding judge consisted in his directing the jury that the respondent, as a governor of the Yorkshire College, was legally justified in charging and accepting payment of full professional remuneration in respect of services rendered by him to the college in his capacity of solicitor. Your Lordships can entertain no doubt that the respondent was neither entitled to charge profit costs in respect of these services, nor to retain them when received by him. Such a breach of the law may be attended with perfect good faith, and it is, in my opinion, insufficient to justify a charge of moral obliquity, unless it is shewn to have been committed knowingly or with an improper motive. Order XXXIX. r. 6 of the Supreme Court Rules makes it imperative that a new trial shall not be granted on the ground of *49 misdirection, unless, in the opinion of the Court, some substantial wrong or miscarriage has been thereby occasioned in the trial. I think it is clear that the misdirection given by Cave J. at the trial was such as to occasion a miscarriage in the sense in which that word was understood by the legal profession at the time when the Rules of 1883 were framed. The only question, therefore, which your Lordships have to consider is, whether the miscarriage has been substantial within the meaning of the order. Every party to a trial by jury has a legal and constitutional right to have the case which he has made, either in pursuit or in defence, fairly submitted to the consideration of that tribunal. In the present instance the case made in evidence by the appellant was not submitted to the jury. The whole imputations in his letter of February 26, 1894, which are said to be libellous, arise out of and are strung upon the allegation that the respondent's acceptance and retention of full remuneration for the professional services rendered by him to the college were in violation of the law. The text or basis of these imputations was, in point of fact, true; but the case went to the jury on the footing that it was false. It is plain that the learned judge did not regard its falsity as an immaterial feature of the case which the jury had to consider. He told the jury: In my judgment he (i.e., the respondent) was not making a profit illegally or improperly, and if it was not illegal or improper, of course Mr. Ford could not know that it was either; and that does impute to him conduct which, if it were true, would no doubt tend to lower him in public estimation, and properly so tend. I have already indicated my opinion that the illegality of the respondent's conduct would not necessarily justify a charge of acting improperly if the impropriety imputed meant anything more than illegality; and I agree with the learned judges of the Appeal Court in thinking that, assuming illegality, there are other imputations in his letter which might sustain a verdict against the appellant. I do not profess to know all the considerations by which juries are influenced in arriving at their verdict; but it does appear to me that, in assessing damages, a *50 jury might reasonably take into their consideration whether the charge upon which libellous imputations were made by way of comment was or was not in itself a libel. In the one aspect, the appellant's letter conveyed a wholly baseless and libellous charge; in the other, a well founded accusation, followed up by language which conveyed other and libellous imputations. I do not feel myself in a position to affirm that, in each of these cases, the same jury would have awarded the same sum of damages. I could not possibly arrive at that conclusion without first assessing the damages in each case for myself; and that is a duty which, in my opinion, I ought not to undertake in a case like the present. In such a case the assessment of damages does not depend upon any definite legal rule, and is the peculiar function of the jury, by whom the party liable is entitled to have the measure of his pecuniary liability determined. For these reasons I have come to the conclusion that there has been a substantial miscarriage within the meaning of Order XXXIX. r. 6, and that the case must be remitted for a new trial. I have purposely abstained from suggesting any general rule applicable to the construction of Order XXXIX. r. 6. I doubt the possibility of formulating any rule which would be useful, and I do not doubt the inexpediency of making the attempt. Each case must depend upon its own circumstances. My noble and learned friend Lord Macnaghten, who is unable to be present, has requested me to state that he concurs in the views which I have expressed. LORD HERSCHELL. My Lords, in this case the respondent obtained a verdict for 600l. in an action of libel tried before Cave J. and a special jury at Leeds. The respondent is a solicitor, and has been for some years vice-chairman of the council of

the Yorkshire College. He has manifested his interest in the work of the college by large pecuniary contributions. Either alone or in conjunction with his partner he has acted as solicitor to the college since its incorporation nearly twenty years ago. Prior to 1878, in which year he entered into partnership with another solicitor, he made a present of *51 his time and labour to the college. After entering into partnership he considered that he was not at liberty to do so. He informed the college of this, and bills of costs were afterwards delivered to and charged against the college in the usual way. The total amount of the profit received by the respondent on these bills of costs, which covered the period from 1879 to 1893, was 103l. 10s. His annual subscriptions to the college during the same period considerably exceeded that amount. The libel complained of was a copy of a letter addressed to the respondent, which was sent to more than 300 of the governors of the college and to some other persons. The letter commenced by stating that the respondent, whilst holding the fiduciary position of vice-chairman of the college, had been illegally and improperly, as he knew, making profit as its paid solicitor. On this were founded some comments which a jury would be, to say the least, justified in regarding as gravely libellous. At the trial it was contended that the respondent was, by virtue of the fourth clause of the college's memorandum of association, entitled to receive remuneration for his services, notwithstanding the position he held as vice-chairman of the council. The learned judge adopted this view, and so directed the jury. The Court of Appeal have held that this was erroneous, and I agree with them. I do not think the words relied on have the effect contended for. It is not now in controversy that if this be so the respondent was not warranted in making a charge for his professional services. It is an inflexible rule of a Court of Equity that a person in a fiduciary position, such as the respondent's, is not, unless otherwise expressly provided, entitled to make a profit; he is not allowed to put himself in a position where his interest and duty conflict. It does not appear to me that this rule is, as has been said, founded upon principles of morality. I regard it rather as based on the consideration that, human nature being what it is, there is danger, in such circumstances, of the person holding a fiduciary position being swayed by interest rather than by duty, and thus prejudicing those whom he was bound to protect. It has, therefore, been deemed expedient to lay down this positive *52 rule. But I am satisfied that it might be departed from in many cases, without any breach of morality, without any wrong being inflicted, and without any consciousness of wrong-doing. Indeed, it is obvious that it might sometimes be to the advantage of the beneficiaries that their trustee should act for them professionally rather than a stranger, even though the trustee were paid for his services. It is clear, however, that the learned judge misdirected the jury, and that, as the misdirection cannot be said to have been on a point wholly immaterial, the appellant would have been entitled, prior to the Judicature Act, to a new trial as of right. Order XXXIX. r. 6 provides that a new trial shall not be granted on the ground of misdirection, unless, in the opinion of the Court, some substantial wrong or miscarriage has been thereby occasioned in the trial. The Court of Appeal came to the conclusion that there had been no such wrong or miscarriage in the present case. They thought, as I understand, that the nature of the libel was such that the jury would have been entitled to give, and would probably have given, the same verdict, even if the direction of the learned judge had been the other way. If I had thought that the enactment relied on sanctioned dealing with the case in this way, I am far from saying that I should have differed from the conclusion at which they arrived. But I have come, with some reluctance, I own, to the conclusion that it does not. The provision is, in my opinion, a very beneficial one, and I should be sorry to say anything to narrow its scope further than the language employed seems to me to render necessary. In cases in which the question is what are the facts, or the proper inferences to be drawn from the facts, if the Court think that the verdict of the jury is in accordance with the true view of the facts and of the inferences to be drawn from them, it may be that they would have done right in refusing to grant a new trial on the ground of misdirection, even where the parties had a right to claim that the action should be tried by a jury. But in the case of an action for libel, not only have the parties a right to trial by jury, but the assessment of damages is peculiarly within the province of that tribunal. *53 The damages cannot be measured by any standard known to the law; they must be determined by a consideration of all the circumstances of the case, viewed in the light of the law applicable to them. The latitude is very wide. It would often be impossible to say that the verdict was a wrong one, whether the damages were assessed at 500l. or 1000l. Where, then, the judge so directs the jury as to lead them to take an erroneous view of any material part of the alleged libel, and this view may have affected their minds in considering what damages they should award, I think there has been a substantial miscarriage within the meaning of the rule. The Court may think, as I might think in the case before your Lordships, that the jury would have given the same damages if the law had been correctly expounded; but this is a mere matter of speculation: it cannot be asserted with the least certainty that they would have done so. The jury have returned their verdict on what they were

erroneously led to think was the case, and not on the real case which the defendant was entitled to have submitted to them. I find it impossible to say that the case upon which the jury ought to have adjudicated ever was wholly before them, and that they were allowed to give to all the circumstances which might legitimately have influenced the verdict their due weight. This seems to me to establish that there has been a substantial miscarriage, and that the appellant is entitled to a new trial. LORD SHAND. My Lords, I am of the same opinion, and, after the judgments already delivered, I shall endeavour to state shortly the reasons which have satisfied me that a substantial wrong or miscarriage was occasioned at the trial by the misdirection of the learned judge, and that in consequence the appellant is entitled to have the verdict set aside. The plaintiff complained of the alleged libel, that it imputed to him that he had wilfully and knowingly acted illegally and improperly in claiming and receiving profits when acting as solicitor for the Yorkshire College while he held the fiduciary position of a member of the council and was vice-chairman of the college, and further that he acted from base, selfish and *54 sordid motives, and was a man of the same character as the wire-pullers in the Liberator group of swindling companies, and that he had used religious, educational and philanthropic schemes as a hypocritical cover for the purpose of serving his own ends. In the conduct of the case before the jury the plaintiff maintained what is very material to the present controversy, that the libel thus complained of was wholly unjustifiable, because there was no foundation for even the charge of his having claimed and received profits to which he was not legally and properly entitled, as by the memorandum of association of the college he was entitled to claim and receive the fees for business which had been paid to him. The important bearing on the issue before the jury of the question whether the plaintiff was or was not entitled to charge and receive fees for professional business done for the college is apparent. If the plaintiff was entitled to these fees or profits then the libel was entirely unjustifiable, and the defendant was completely deprived of even the suggestion that to any extent he had acted in the public interest. If the plaintiff was not entitled to make the charges the defendant was in a position to plead that the plaintiff was so far in the wrong that to this extent the libel was justified, and that he had truly acted in the public interestconsiderations which had a material bearing on the question of damages. The plaintiff asked and obtained from the learned judge who presided at the trial a direction in law in his favour on the point of his legal right to make the charges; but it has been found, on a more careful consideration of the matter than could be given in the hurry of a trial, that this direction was erroneous. What was the effect of this, or what is it reasonable to infer was the effect? It appears from the charge of the learned judge that he treated the legal question as having an important bearing on the verdict. His Lordship said: In my judgment he (the plaintiff) was not making a profit illegally or improperly, and if it was not illegal or improper, of course Mr. Ford could not know that it was either; and that (meaning the alleged libel) dose impute to him conduct which, if it were *55 true, would no doubt tend to lower him in public estimation, and properly so tend. And in another passage he said: It is for you to say whether it is true that the defendant was actuated by an honest desire to improve the public service, or whether under the guise of doing a public service he was seeking to gratify a feeling of spite and ill-will to the plaintiff. It is obvious that it was a very material consideration in the determination of this question whether the alleged libel was a gratuitous charge entirely without foundation, because the plaintiff was by law entitled to the profits he had made, or whether, on the contrary, the defendant was right in saying that the plaintiff was not entitled to these profits. The misdirection was therefore on a matter clearly material to the issue, which in reference to the point last noticed might possibly have even affected the question whether the plaintiff was entitled to a verdict, and which in any view might seriously affect the question of damages. There was therefore prim facie a substantial wrong or miscarriage occasioned by the misdirection. It has been argued, however, and the argument has found favour with the judges of the Court of Appeal, that if the case be looked further into it will be found that no such wrong or miscarriage was occasioned. It is said that in any view the libel contained unfounded charges of a most serious nature, imputing base motives to the

plaintiff in his conduct and seriously affecting his moral character, and that the sum of damages found by the jury only does substantial justice in this view of the case. I agree with your Lordships in holding that this view cannot be sustained. It in effect asks that another and different case than that presented to the jury shall be tried, and tried, not by the proper tribunal of a jury, but by a Court of Appeal. The Court is asked to consider the libel and the evidence for the purpose of seeing whether liability exists on a view different from that formerly presented, and whether the damages given on the case formerly presented will not fit in suitably with this different case. I am clearly of opinion that, useful as the provision of rule 6 of Order XXXIX. may prove in other cases it ought not to be carried so far as the respondent's argument would carry it, and that the Court cannot be asked, in order to sustain *56 a verdict which involves a substantial wrong to the defendant, not merely to assess damages, but to do so in trying a case materially different from that laid before the jury. The plaintiff may be fully warranted in believing that he will again obtain a verdict for an amount not less than the jury has awarded; but the defendant is entitled to have the real case submitted to the jury, and to have the amount of damages on that case assessed by them.

Representation
Solicitor for appellant: C. Rawlings. Solicitor for respondent: Richard Smith & Sons, for William Warren, Leeds. Judgment and order appealed from reversed: directed that a new trial be had, the costs of the proceedings in both Courts below to abide the event of the new trial: the respondent to repay to the appellant all damages and costs already paid to him, and to pay the appellant's costs in this House: cause remitted to the Queen's Bench Division. Lords Journals December 18, 1895.

1. Clause 4 was as follows: The income and property of the association, whencesoever derived, shall be applied solely towards the promotion of the objects of the association, as set forth in this memorandum, and no portion thereof shall be paid or transferred, either directly or indirectly, by way of dividend, bonus, or otherwise howsoever by way of profit to the persons who at any time are or have been members of the association, or to any of them, or to any person claiming through any of them, provided that nothing herein shall prevent the payment in good faith of remuneration to any officers or servants of the association, or to any members of the association, or other person, in return for any services actually rendered to the association, or by way of reimbursement of payments made, or costs, charges, or expenses incurred in or about the business of the association, or on behalf of the association, or the award or payment in good faith to any member of the association of any honorary distinction or emolument to which he would be entitled according to the rules and regulations of the association, independently of his being a member. 2. [1891] A. C. 73. 3. 37 Sol. J. 130. 4. L. R. 3 Q. B. 396.