Berkeley v O' Brien [1901] FijiLawRp 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] 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.