Keogh v The Incorporated Dental Hospital of Ireland

• Jurisdiction: Ireland
• Judgment Date: 23 June 1910
• Date: 23 June 1910
• Docket Number: (1909. No. 3860.)
• Court: King's Bench Division (Ireland)

Keogh

and

The Incorporated Dental Hospital of Ireland (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1910.

Libel — Practice — Particulars — Judicature Act. 1877, s. 61 — R. S. C., I. (Feb. 22, 1905), Order XIX., Rule 7.

In an action of libel the defendant is not entitled to particulars of the name or names of the person or persons to whom, the date or dates on which, and the place or places where, the alleged libel was published, in the absence of special grounds requiring them, and especially in a case where the particulars of publication (if any) must be known to the defendant.

Semble: There is no established practice in England for ordering such particulars in actions for libel without special grounds, which would, under section 61 of the Judicature Act, 1877, coerce the Courts in this country to depart from their hitherto well-settled practice.

Motion by the defendants, in an action for libel, for particulars of the publication relied on by the plaintiff.

The action was brought by Myles Keogh against the Incorporated Dental Hospital of Dublin; and the alleged libel was pleaded in the statement of claim as follows:— “The defendants falsely and maliciously wrote and published of the plaintiff the words:—'Resolved—That Mr. Keogh (meaning the plaintiff) cannot be accepted as a student of this hospital (meaning the dental hospital of the defendant company), the committee having the right by their bye-laws to refuse any student without assigning a cause.’”

The said resolution had been passed and entered on the minute book of the defendant company on the 18th May, 1908, on which date an application by the plaintiff to be admitted as a student of the said hospital came before the committee of management of the defendant company, and a copy of the said resolution was sub-sequently, at the request of the plaintiff, sent to him by the Registrar of the defendant company in the course of a correspondence between them relating to the plaintiff's said application.

As the committee of management adhered to the resolution not to admit the plaintiff as a student of the said hospital, the plaintiff brought the present action. The plaintiff's statement of claim did not contain any particulars of the dates when, the places where, or the persons to whom, the alleged libel was published. After the statement of claim had been delivered, the solicitors for the defendant company served on the plaintiff's solicitor a notice requiring particulars in writing of the publication complained of, which request was refused. Believing that the plaintiff's objection to furnish the said particulars was due to a desire that a statement of defence should be delivered before he did so, the defendant company then filed and delivered a defence. The said defence contained a denial that the defendant company wrote or published the words complained of; a plea that the said words did not bear the meaning ascribed to them in the statement of claim, or any defamatory meaning whatsoever; a plea that the said words were no libel; and a plea that the publication (if any) of the said words by the defendant company was made bona fide in the belief that the said words were true, and without malice, and on a privileged occasion. In the particulars of the said plea of privilege it was stated that “the said words were published (if at all) by the defendants to a person or persons interested in, and entitled to be informed of, the defendants' decision upon the plaintiff's said application, and in performance of a duty towards such person or persons, and not in any way otherwise.” After the said defence had been delivered, the solicitors for the defendant company, on the 21st May, 1909, repeated their request for particulars of the publication of which the plaintiff complained, which request was again refused. The defendant company thereupon, on the 28th May, 1909, instituted the present motion for an order that the plaintiff should furnish particulars in writing of the name or names of the person or persons to whom, the date or dates when, and the place or places where, the plaintiff alleged that the said allcged libel was published; and for an order that, upon default by the plaintiff in complying with such order, his statement of claim should be struck out, and the action dismissed with costs. The said motion was grounded upon an affidavit made by one of the solicitors for the defendant company, which stated that the defendants were wholly unaware of the nature of the publication (if any) of the alleged libel relied on by the plaintiff; and that the said particulars were sought merely to enable the defendants to know what case they would have to meet, to limit the issues, and prevent surprise, and for no other purpose whatsoever. In a replying affidavit, filed on the 7th June, 1909, the plaintiff stated that the defendants were well aware of the persons to whom the words complained of were published, as they had in their possession all the information relative thereto. He also stated that his case was that the said words had been communicated by the defendants to the General Medical Council, to several dentists and doctors in Dublin, to their own Board of Governors, and to the Council of the College of Surgeons, and the members thereof.

From an affidavit made by the Registrar of the defendant company and filed on the 9th June, 1909, it appeared that on the 1st June the plaintiff's solicitor had served a notice, requiring particulars of the names and addresses of the persons who were alleged by the defendants in their defence to be persons interested in, and entitled to be informed of, the defendants' decision upon the plaintiff's application for admission as a student, and to whom the resolution of the 18th May, 1908, was communicated. It also appeared that, in reply to this notice, a letter had been written by the solicitors for the defenfant company stating that the defendants were not aware of any publication by them of the said resolution; and that the plea of privilege in their defence had been inserted with a view of meeting any publication which might be alleged, or attempted to be proved by the plaintiff. The deponent stated that the defendants were “entirely ignorant of having published” the words complained of. Discovery of documents had been made by the defendant company before the present motion was instituted.

T. M. Healy, K.C. (Chambers, K.C., and W. G. Gibson, with him), for the defendants:—

The defendants are entitled to the particulars asked for: Bradbury v. Cooper (1); Roselle v. Buchanan (2); Jackson v. Wine

(1); Davey v. Bentinck (2). If the plaintiff fails to give the particulars asked for, the action should be dismissed; the fact that he says he is unable to do so, is no excuse. It goes to show that the action is frivolous and vexatious: see the judgment of Lord Esher, M.R., at p. 188 of the report of Davey v. Bentinck (2).

Campbell, K.C., and Jefferson, K.C. (Joseph K. O'Connor with them), for the plaintiff:—

The rule that the plaintiff must give particulars of the publication or publications on which he relies applies only to actions for slander; not to actions for libel: Gouraud v. Fitzgerald (3). Folkard on Libel and Slander, p. 240. All the cases cited by the other side, save Davey v. Bentinck (2), refer only to actions for slander: Gouraud v. Fitzgerald (3) was not cited to the Court which decided Davey v. Bentinck (2).

Particulars ought not to be ordered after a defence has been filed It would be unjust to limit the plaintiff to the occasions of publication of which particulars were given; and if that were not done, particulars would be useless to the defendant: see the judgments of Pollock, B., and Manisty, J., in Gouraud v. Fitzgerald (3).

M. G. Gibson, in reply:—

In regard to the rule as to particulars, no distinction can be drawn between actions for slander and actions for libel: Odgers on Libel and Slander, p. 586. In both cases the cause of action must be based on a publication which occurred before the issue of the writ; a subsequent publication can be used only to aggravate damages. Lord Esher, M.R., who was a member of the Court which decided Davey v. Bentinck (2), was also a party to the decision in Gouraud v. Fitzgerald (3). The decision of the Court of Appeal in the latter case was not based on the ground that the rule as to particulars did not apply to actions for libel, but on the special facts of the case before them, viz., the defendants' delay in moving for the order sought: see the report of the case in 5 T. L. R. 80.

In the present case the plaintiff ought to have pleaded in his statement of claim the occasions of publication on which he relies: Odgers on Libel and Slander, p. 582.

T.M. Healy, K.C. (Chambers, K.C., and W. G. Gibson, with him), for the defendants:—

Campbell, K.C., and Jefferson, K.C. (Joseph K. O'Connor with them), for the plaintiff:—

Boyd, J.—

In this case the defendants have moved for an order that the plaintiff do furnish to the defendants full particulars of the name or names of the person or persons to whom, and the date or dates on which, and the place or places where, the plaintiff alleges that the words complained of in paragraph 10 of his statement of claim were published.

The action is for libel contained in a resolution passed by the Committee of the defendant Company, on the 18th May, 1908, and entered on the minutes of the meeting of the Committee. In a letter from the Registrar of the defendant Company, dated 20th October, 1908, the plaintiff was for the first time informed of the existence of the said resolution. Of course it would be impossible for the plaintiff to know who has had access to the record of the minutes of the said Committee, or to whom the same was shown. The defendant Company must know this...