Ross v Eason & Son Ltd

• Jurisdiction: Ireland
• Judgment Date: 27 February 1911
• Date: 27 February 1911
• Court: High Court

Joseph Ross

and

Eason & Son, Limited. the “Winning Post” Limited, And Walbrook & Co., Limited (1).

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.

1911.

Practice — Libel — Publication — Service out of the jurisdiction — Necessary or proper party to action properly brought against defendant within the jurisdiction — Order XI, 1 (h).

A letter, alleged to be a libel on the plaintiff, was published by a London newspaper, copies of which were sold in Dublin by Eason & Son, a firm of Dublin newsagents, between whom and the publishers of the paper no contract of agency existed, and who were, as they alleged, ignorant of the alleged libel. Proceedings for the alleged libel were threatened by the plaintiff against the publishers and printers of the paper in London, and on their refusal to nominate a solicitor in Ireland to accept service of a writ of summons on their behalf, the plaintiff, without any previous communication, issued a writ of summons claiming damages for the alleged libel against Eason & Son, and then applied for and obtained an order under Order XI, 1 (h), granting leave to issue and serve a concurrent writ for service out of the jurisdiction on the publishers and printers of the paper in London, alleging that the latter were necessary and proper parties to the action brought against Eason & Son, within the jurisdiction.

Held, by the Court of Appeal (affirming the decision of the King's Bench Division), that the order for service out of the jurisdiction should be set aside, on the ground that the action against Eason & Son was only instituted for the purpose of bringing the English defendants within the jurisdiction of the Irish Courts.

Appeal from an order of the King's Bench Division, dated the 27th January, 1911, whereby it was ordered that the order of the 12th December, 1910, made in this action, granting leave to the plaintiff to issue a writ of summons concurrent with the writ already issued against the “Winning Post” (1906), Ltd., and Walbrook & Co., be discharged, and that the writ of summons

issued in pursuance thereof and the service of the said writ be set aside. The action was one for an alleged libel, consisting of a letter published in an issue of the “Winning Post,” dated the 26th November, 1910, which purported to have been written to the paper by the plaintiff, but was in fact a forgery, and which represented the plaintiff as one interested in racing matters and a betting man, by reason of which the plaintiff, who was the owner of a temperance hotel, alleged that he had suffered loss in his business. On the 29th November, the plaintiff's solicitor wrote to the Secretary of the “Winning Post” and to Walbrook & Co., the printers of the paper, complaining of the alleged libel, and threatening proceedings in respect thereof; on the 1st December, 1910, the London solicitor for the “Winning Post, Company,” replied, stating that the letter was published in the bona fide belief that it was a genuine letter, and undertaking to insert an apology in the next issue of the paper; on the 2nd December, 1910, the plaintiff s solicitor further wrote asking the solicitor for the “Winning Post” to nominate a solicitor in Ireland, to accept service of a writ of summons on behalf of the “Winning Post” and Walbrook & Co., to which, on the 6th December, 1910, the solicitor for the “Winning Post” replied, refusing to nominate a solicitor in Ireland, and pointing out that the proposed action could only be instituted in England.

On the 7th December, 1910, the writ of summons in this action was without any previous communication issued against Messrs. Eason & Son, Ltd., a firm of newsagents carrying on an extensive business in Dublin, who had sold copies of the “Winning Post” containing the alleged libel; and on the 12th December, 1910, the plaintiff applied under Order XI, 1 (h) for, and obtained, the above-mentioned order, granting him leave to issue and serve a concurrent writ out of the jurisdiction upon the “Winning Post,” Ltd., and Walbrook & Co., Ltd., who, on the 27th January, 1911, applied to the King's Bench Division (consisting of Palles, C.B., Gibson and Boyd, JJ.), to set aside the last-mentioned order. Several affidavits were filed for the application; the plaintiff alleging that he had a good cause of action against Messrs. Eason & Son, Ltd., and that the defendants, the “Winning Post,” Ltd., and Walbrook & Co., were necessary and proper parties to such action; that he had instructed his solicitor to ascertain all the parties who were concerned with the publication and distribution of the alleged libel, and that it was his intention to prosecute his action against the said parties to a finish. In an affidavit filed by the manager of the “Winning Post, Ltd., it was alleged that no agency of any kind existed between either of the English defendants and Messrs. Eason & Son, Ltd., and that no account in connexion with the sale of the said paper existed between them, and in an affidavit filed by the manager of Messrs. Eason & Son, Ltd., it was alleged that the latter firm purchased the copies of the paper containing the alleged libel from Messrs. W. H. Smith & Son, Ltd., and not from the “Winning Post” Company; that neither the said manager nor any member of the firm or staff was aware of the letter complained of; that if it had been brought to their notice they would have...