Berkeley v O' Brien [1901] FJLawRp 1; [1875-1946] 3 FLR 38 (5 September 1901)

[1875-1946] 3 FLR 38

SUPREME COURT OF FIJI

Civil Jurisdiction

BERKELEY

v

O'BRIEN

Ross, Acting C.J.

September 5, 1901

Slander-conversation between Governor and Acting Chief Justice-whether absolutely privileged-reference to barrister being kicked out of Fiji Club-whether touching plaintiff in his profession-procedure on demurrer-effect of plaintiff's failure to plead special damage.

This decision was on the averments of a statement of claim, as follows:-

"(1) The plaintiff is and on the 22nd day of July, 1901, was a barrister and solicitor of the "Supreme Court of Fiji. On the same day the defendant had a conversation with Francis Oswald Edlin Esquire then Acting Chief Justice of the said Supreme Court. The said "conversation (so far as material) commenced by the defendant asking the said Francis Oswa1d Edlin 'Do you know Humphrey Berkeley?' to which the latter replied 'Yes; he is a barrister practising in my Court'.

(2) During the said conversation the defendant falsely and maliciously spoke and published of the plaintiff in reference to his said profession of barrister and solicitor the words following: that is to say, 'Do you call on him? You do call on him then. Do you "know he has been kicked out of the Fiji Club?'-meaning thereby that the plaintiff was a "low practitioner and had been expelled from the Fiji Club as such and as a person of ill-fame' and was therefore an improper associate for an occupant of the Bench.

(3) By reason of the premises the plaintiff has sustained great loss in his said profession and lost clients that he would otherwise have had. And the plaintiff claims:-

(1) One thousand pounds damages for the things complained of and costs."

HELD-

(1) A conversation between two officers of State in the course of their official duty is absolutely privileged.

(2) A statement to the effect that a barrister at law of Inner Temple and solicitor of the Supreme Court of Fiji has been kicked out of the Fiji Club does not touch him in his profession and will not bear the innuendo that he is a low practitioner and an improper associate for an occupant of the bench.

[EDITORIAL NOTE-There was nothing before the Court to add to the particulars in the statement of claim as to the circumstances in which the alleged conversation took place.]

Cases referred to:-

(1) Capital and Counties Bank v Henty [1882] AC 741; 52 LJQB 232; 47 LT 662; 47 JP 214; 32 Dig 21.

(2) Chatterton v The Secretary of State for India in Council [1895] UKLawRpKQB 117; [1895] 2 QB 189; 64 LJQB 676; 72 LT 858; 59 JP 596; II TLR 462; 22 Dig 395.

MOTION IN DEMURRER to an action for damages for slander.

The Acting Attorney-General, C. H. H. Irvine with H. Shaw and H. M. Scott for the defendant, in support of the motion.

F. C. Beddard for the plaintiff.

ROSS,^[1] Acting C.J.-This is an action for slander brought by Mr. Humphrey Berkeley, barrister-at-law, of the Inner Temple, and a solicitor of the Supreme Court, Fiji, against Sir George Michael O'Brien; and the defendant has demurred to the statement of claim.

The grounds stated in the demurrer are:-That the words alleged to have been spoken by defendant as mentioned in paragraph 3 of plaintiff's statement of claim are not, and could not, be actionable, though proved as alleged, and that the action is vexatious; and that the conversation, as disclosed in the plaintiff's statement of claim was between the Governor of the Colony and the Acting Chief Justice of this Colony, and the occasion was absolutely privileged.

I will first state the law so far as applicable, as laid down by Mr. Blake Odgers in his work on libel and slander. Words which produce any perceptible injury to the reputation of another are called defamatory and defamatory words, if false, are actionable. In any given case the fact that the words used by the defendant have perceptibly injured plaintiff's reputation may be (i) either presumed from the nature of the words themselves; or (ii) proved by evidence of their consequence. (i) It will be proved from the nature of the words themselves, among other cases, when the words being spoken of the plaintiff are in the way of his trade or profession. In this case the words are said to be actionable per se, because on the face of them they dearly must have injured plaintiff's reputation. (ii) In all other cases of spoken words the fact that the plaintiff's reputation has been injured thereby must be proved in the trial by evidence of the consequences that directly resulted from their utterance. Such evidence is called" evidence of special damage" as distinguished from that general damage which the law assumes without express proof, to follow from the employment of words actionable per se.

I have now to deal with the words used by the defendant and their construction: The defendant's counsel by his demurrers admits that the conversation set forth in the statement of claim is correctly reported, but submits that it is not actionable. The conversation was in these words. The defendant said "Do you know Humphrey Berkeley?" to which Mr. Edlin, then Acting Chief Justice replied "Yes, he is a barrister practising in my court," The defendant also said "Do you call on him! You do call on him then? Do you know he has been kicked out of the Fiji Club!" and on these words the plaintiff's counsel puts the innuendo "meaning thereby that plaintiff is a low practitioner and had been expelled from the Fiji Club as such and as a person of ill fame, and was therefore an improper associate for an occupant of the Bench."

The words on which the plaintiff's case must stand or fall are those used by the defendant. They are prima facie defamatory and to make them actionable they must either touch the plaintiff in his profession, in which case no proof of special damage is necessary, or special damage must be proved if they do not touch him in his profession. One question for me to decide at this stage is whether the words laid in their primary sense, or in the secondary sense which is given to them by the plaintiff's counsel, are reasonably capable of touching the plaintiff in his profession. Should I find an answer to this question in the affirmative, it would not be my duty to stay the action on this ground of demurrer. Can it be said that you touch a barrister and solicitor in his profession if you say that he has been expelled from a club? I adopt the meaning given to the word, "kicked," by the plaintiff's counsel.

It seems to me that membership of a club has nothing whatever to do with the profession of a barrister and solicitor; and therefore that the words, "Do you know he has been kicked out of the club?", are prima facie harmless as touching the plaintiff in his profession. Are they however, reasonably susceptible of the defamatory meaning put on them in the statement of claim? The words under consideration are in my opinion incapable of the meaning ascribed to them in the statement of claim. I hold then that the words laid do not touch the plaintiff in his profession. To make them actionable the plaintiff must therefore prove special damage. He has prepared for this contingency to some extent by paragraph 3 of his statement of claim, which he admits to be insufficient, but says that the defendant ought to have asked for further particulars and that, not having done so, he cannot now demur. The court has the power to allow amendment at any stage of a case. Particulars of special damage are, it now appears, essential to this part of the plaintiff's statement of claim. He applied for and obtained an amendment of a curious, and what I must now consider a significant, mistake in his statement of claim^[2]; but it did not suit his purpose apparently to apply to amend paragraph 3. I therefore hold him to his statement of claim as it stands, which is fatal to him, as not showing a cause of action. The plaintiff's counsel seems to argue that a defendant is not allowed to demur to a statement of claim in an action for slander, because by the Common Law Procedure Act,^[3] 1852, s. 61, no prefatory averment is needed to support an innuendo.

But to quote Lord Blackburn in Capital and Counties Bank v Henty [1881] 7 AC, p. 782) "the Common Law Procedure Act, 1852, s. 61, was intended to remove the difficulties which a plaintiff had in putting a real cause of action on the record, with sufficient technical precision. It was not intended to alter the law or to deprive the defendant of his right to ask the Court to say that the words alleged to be actionable slander ... were not so in the judgment of the Court." The defendant in this case has such a right and the point put forward by the plaintiff's counsel has little value unless to cause delay.

I pass now to the second ground of demurrer. The question of absolute privilege is very important. It is clear, as a general principle, in the British Empire, that every man, whatever be his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary courts, and that every official, from the Governor of a colony downwards, is under the same responsibility for every act done without legal justification, as any other citizen, to quote Professor Dicey. On certain occasions, however, it is so much to the public interest that a defendant should speak out his mind fully and fearlessly that all actions in respect of words spoken thereon are absolutely forbidden, even though it be alleged that the words were spoken falsely, knowingly, and with express malice. There are not many such cases, nor is it desirable that there should be many. They include the case of an act of State, e.g. every communication relating to State matters made by one officer of State to another. In the words of Lord Esher, Master of the Rolls, in Chatterton v The Secretary of State [C.A. 1895]:-

"If it is not competent to a civil court to entertain a suit in respect of the action of an official of State in making such a communication to another official in the course of his official duty, or to enquire whether he acted maliciously in making it. The reason is that it would he injurious to the public interest that such an enquiry should be allowed, because it would tend to take from an officer of State his freedom of action in an action concerning the public weal. If an officer of State were liable to an action for defamation in respect of such a communication as this, actual malice could be alleged to rebut a plea of privilege; and it would be necessary that he should be caned as a. witness to deny that he acted maliciously. That he should be placed in such a position, and that his conduct should be so questioned in a Court would clearly be against the public interest and prejudicial to the independence necessary for the performance of his functions as an official of State. Therefore the law confers on him an absolute privilege in such a case. This doctrine impose a heavy responsibility on officers of State in the use of the protection afforded them but that it exists is undoubted."

I hold that I have judicial notice of the fact that the defendant was Governor of the Colony at the time the defamatory words were used and as such, he is an officer of State. From the circumstances disclosed in the statement of claim it also appears to me that the alleged defamatory words already mentioned were used by the defendant in a conversation with the Acting Chief Justice of the Colony, also an officer of State; that the conversation in question was between two officers of State in the course of their official duty, and therefore that the occasion and the conversation were absolutely privileged and that no action will lie for such conversation.

Under the circumstances, as they appear on the face of the statement of claim, it appears to me that the action is vexatious and must fail if I allow it to proceed, and I therefore dismiss it.

---

^[1]John Kenneth Murray Ross Esquire, 1.5.0., was called to the Bar by the Honourable Society of the Middle Temple on January 26, 1900, and was appointed Acting Chief Justice on July 25, 1901, an appointment which he held until November 4, 1902, when he resumed his former duties as Collector of Customs.
^[2]The innuendo alleged in paragraph (2) of the statement of claim originally read "meaning thereby that the plaintiff was a law [sic] practitioner and much harassed by claimants on account of his defaults and expelled from the Fiji Club, as a person of ill-fame and therefore an improper associate tor an occupant at the bench."

^[3]15 and 16 Vict., c. 76.