Dawson v M'Clelland and Others

• Jurisdiction: Ireland
• Judgment Date: 21 April 1899
• Date: 21 April 1899
• Docket Number: (1898. No. 2491.)
• Court: Court of Appeal (Ireland)

DAWSON

and

M'CLELLAND AND OTHERS

(1898. No. 2491.)

Q. B. Div.

Appeal.

Practice — Parties — Joinder of defendants — Separate causes of action — Claim for damage — Action of libel — R. S. C. Ir. Order XVI., Rule 4 —

Booth v. BriscoeELR 2 Q. B. D. 496.

Brown v. AllenENR 4 Esp. 158.

Clarke v. NewsamENR 1 Ex. 131, 140.

Cocke v. JennerENR Hob. 66.

Colledge v. PikeUNK 56 L. T. (N. S.) 124.

Eliot v. AllenENR 1 C. B. 18.

Frescoe v. MayENR 2 F. & F. 123.

Gort v. RowneyELR 17 Q. B. D. 625.

Gower v. CouldridgeELR [1898] 1 Q. B. 348.

Gregory v. CotterellUNK 22 L. J., Q. B. 217.

Harris v. ArnottUNK 26 L. R. Ir. 55

Harris v. ArnottUNK 26 L. R. Ir. 74.

Heydon's CaseUNK 11 Rep. 5b.

Hill v. GoodchildENR 5 Burr, 2791.

Hill v. GoodchildENR 5 Burr. 2790.

Johns v. DodsworthENR Cro. Car. 192.

Lowfield v. Bancroft 2 Stra. 910.

Martin v. KennedyUNK 2 B. & P. 69.

Mitchell v. MilbankENR 6 T. R. 199.

Onslow v. OrchardENR 1 Str. 422.

Praed v. GrahamELR 24 Q. B. D. 53.

Robertson v. WyldeENR 2 M. & Rob. 101.

Rodney v. StrodeENR Carthew, 19.

Sabin v. Long 1 Wils. 30.

Sadler v. Great Western RailwayELR [1896] A. C. 450.

Sadler v. The Great Western Railway CompanyELR [1895] 2 Q. B. 688, pp. 693-696.

Sandes v. WildsmithELR [1893] 1 Q. B. 771.

Smurthwaite v. HannayELR [1894] A. C. 494.

486 THE IRISH REPORTS. [1899. Q. B. Div, their costs out of the assets, after probate is extracted and 1898. their costs are taxed. FRENCH V. HOVE. Solicitor for the plaintiff : J. A. French. Solicitor for Mrs. Hoey and Ellen Mary Hoey : J. P. Lynch. G. Y. D. Q. B. Div. DAWSON v. M'CLELLAND AND OTHERS (1). 1899. Feb. 9, 15, (1898. No. 2491.) 16, 28. Practice—Parties—Joinder of defendants—Separate causes of action—Claim for damage—Action of libel—B. S. C. Ir. Order XVI., Rule 4—Law of Libel Amendment Act, 1888 (51 4 52 Vict. c. 64). In an action for libel by the plaintiff against three defendants, A, B, and C, A, one of the joint owners, and B, the publisher, of the newspaper containing the libel, delivered a joint defence traversing all the allegations in the statement of claim, and pleading fair comment. C, the other joint owner of the newspaper and the writer of the libel, delivered a similar defence, and counterclaimed for a libel published by the plaintiff against him. At the trial, the jury found a verdict for the plaintiff, with £110 damages, and they apportioned the damages, by permission of the Judge, between the three defendants — £100 against C, and £5 each against A and B ; they also found a verdict of sixpence damages on the counterclaim for the defenÂdant C : Held, in the Queen's Bench Division, by Andrews and Boyd, JJ., and by the Court of Appeal, that the jury had no power to sever the damages, and that the judgments entered in accordance with the verdict should be set aside, and a new trial directed. Held, also, by the Queen's Bench Division, that the damages were excessive. NEW TRIAL MOTION on behalf of two defendants in an action of libel brought against three persons for the same libel and tried before Mr. Justice O'Brien and a special jury of the city of Dublin on the 28th and 29th June, 1898. The action was brought VOL. II.] QUEEN'S BENCH DIVISION. 487 by the plaintiff W. N. Dawson, the editor of a newspaper called Q. B. Div. The Armagh Standard, and also a clerk in the office of the Clerk of 1899. A the Union in that town, against three persons jointly—J. DWSON land, a part-owner of an Armagh newspaper called The Ulster M'CLELLAND Gazette, J. G. Peel, a part-owner of same newspaper, and also the town clerk of Armagh, and W. H. Brayden, the printer and publisher of the same newspaper, for a libel contained in an article which appeared in that newspaper on the 29th January, 1898. The libel had reference to the plaintiff's connexion with the rival newspaper, The Armagh Standard, and the publication therein of articles written by him relative to an election for some municipal office in the town. It may be taken, for the purposes of this report, that the article complained of was scurÂrilous and abusive. The defendant Peel, who wrote the alleged libel, delivered a separate defence, with the usual traverses, a plea of no libel, and a plea that the alleged publications were fair comment upon matters of public interest, upon which the plainÂtiff himself in his own newspaper had also published articles conÂtaining serious charges of corruptness and impropriety against the defendant Peel, and counterclaiming for damages for libel contained in an article published by the plaintiff in The Armagh Standard of the 10th December, 1897. It may be taken for the purposes of this report, that this article was likewise scurÂrilous and abusive. The two other defendants delivered a similar defence, jointly, but no counterclaim. It is unnecessary for the purposes of this report to refer further to the nature of the libel which appears sufficiently in the judgments delivered. A. letter (dated 16th February, 1898) was put in evidence at the trial from the defendant Ai‘Clelland to the solicitors for the plaintiff, in which 21`Clelland stated ‘‘ I can only say that your client was not more annoyed than I was on reading the production" complained of. At the close of the trial the following questions were left to the jury which, with their answers, are here subjoined : 1. Is the article in the defendants' paper on the 29th January a libel ?--Answer, Yes. 2. Is the defamatory sense imputed true ?—No answer. 3. Was the article a fair comment on a matter of public interest ?--Answer, No. 488 THE IRISH REPORTS. [1899. Q. B. Div. 4. The damages the plaintiff is entitled to ?—Answer, £110 1899. damages, viz. £100 against Peel, £5 against 11‘Clelland, and £5 DA WSON against Brayden. v. MTLELIAND 5. Is the article of the 10th December, the plaintiff's article, a libel ?—Answer, Yes. 6. Was the said article of the plaintiff written and published in a defamatory sense ?—No answer. 7. Was the said article a fair comment on a matter of public interest ?--Answer, No. 8. The damages to which the defendant Peel is entitled ?ÂAnswer, 6d. Upon these findings the jury, by the direction of the learned Judge, found for the plaintiff as against the defendant T. G. Peel with £100 damages, as against the defendant John WC1elland with £5 damages, and as against the defendant W. H. Brayden with £5 damages, in the original action ; and for the defendant T. G. Peel, on his counterclaim against the plaintiff, W. N. Dawson, with 6d. damages ; and the Judge gave judgment for the plaintiff as against the defendant T. G. Peel for £100, as against the defendant John M'Clelland for £5, and as against the defendant W. H. Brayden, for £5, with costs in the original action against all said defendants ; and for the said defendant T. 0. Peel, on his counterclaim, for 6d., with legal costs if any ; the Judge staying execution in the event of the defendants' lodging in Court the sum of £110, and serving notice of motion for a new trial, and certifying that it was a fit case for a special jury. The defendants T. G. Peel and W. H. Brayden moved for an order that the verdict and judgment in the action and counterclaim be set aside, and a new trial had between the parties in the action and counterclaim, on the ground that the findings and verdict of the jury therein (save the findings on said counterclaim that the words complained of were a libel and were not fair comment) were against evidence and the weight of evidence, and perverse, and unsatisfactory, and on the ground that evidence properly admisÂsible and tendered by the defendants was improperly rejected, and that evidence on behalf of the plaintiff was improperly admitted, and on the ground that the learned Judge had misdirected the jury, and that the findings in the action were inconsistent, and Vol-. Hi QUEEN'S BENCH DIVISION. 489 that same and the judgment in the said action were wrong in law Q. B. Div. and unsustainable on the pleadings and evidence, and that the 1899. WSON DA damages found for the plaintiff in the action were excessive, and v. were improperly ascertained and apportioned. M'CLELLAND 0' Shaughnessy, Q.C., Campbell, Q.C., and Bates, for the defenÂdants Peel and Brayden. Gordon, Q. C., and C. Murphy (Bushy, Q. C., with them), for the plaintiff. Megan; appeared for the defendant McClelland, and said that unless the plaintiff was allowed to enter a nolle prosequi against his client, he would prefer the verdict to stand. ANDREWS, J. :— Feb. 28. This action was brought by the plaintiff against the defendants jointly for the publication of a libel on the plaintiff contained in an article in The Ulster Gazette newspaper, of which the defendants Peel and McClelland were the proprietors, and the defendant Brayden was the printer and publisher. Peel was the writer of the article, and he filed a separate defence. McClelland and Brayden joined in the defence filed by them ; but the joint responsibility of the three defendants for the libel for which the plaintiff sued was relied on by him, and admitted by them at the trial. The same solicitors and counsel appeared for the defendants at the trial, and in substance their defences were traverses, and pleas of no libel and fair comment. Peel. also counterclaimed for a libel by the plaintiff on him, contained in a previous article written by the plaintiff and...