Watt v. Longsdon

Judgment by SCRUTTON L.J

This case raises, amongst other matters, the extremely difficult question, equally important in its legal and social aspect, as to the circumstances, if any, in which a person will be justified in giving to one partner to a marriage information which that person honestly believes to be correct, but which is in fact untrue, about the matrimonial delinquencies of the other party to the marriage. The question becomes more difficult if the answer in law turns on the existence or non-existence of a social or moral duty, a question which the judge is to determine, without any evidence, by the light of his own knowledge of the world, and his own views on social morality, a subject matter on which views vary in different ages, in different countries, and even as between man and man.

The Scottish Petroleum Company, which carried on business, amongst other places, in Morocco, had in Casa Blanca, a port in Morocco, a manager named Browne, and a managing director named Watt. The company had in England a chairman named Singer, who held a very large proportion of shares in the company, and also another director, Longsdon, a young man under thirty years of age. The latter had been in Morocco in business and friendly relations with Watt and Browne, and was a friend of Mrs. Watt, who had nursed him in an illness. The company went into voluntary liquidation in November, 1927, and Longsdon was appointed liquidator. In April, 1928, Mrs. Watt was in England, and her husband in Casa Blanca. It is not clear, and there is no evidence, what the effect of the liquidation had been on the actual employment of Watt and Browne, that is, whether they, or either of them, still received a salary. Watt's directorship was, under the Companies Act, in a state of suspended animation. Under these circumstances Longsdon in England received at the beginning of May from Browne in Casa Blanca a letter stating that Watt had left for Lisbon to look for a job, that he had left a bill for for whisky unpaid, and that he had been for two months in immoral relations with his housemaid, who was now publicly raising claims against him for money matters. The woman was described as an old woman, stone deaf, almost blind, and with dyed hair. A number of details were given which Browne said Watt's cook had corroborated. The information was mixed up with an allegation that Watt had been scheming to compromise or seduce Mrs. Browne. The letter concluded: "From a letter shown to me by Mr. Watt I know how bitterly disappointed Mrs. Watt is, and how very much troubled she is. It would therefore perhaps be better not to show her this letter as it could only increase most terribly her own feelings in regard to her husband. These awful facts might be the cause of a breakdown to her, and I think she has enough to cope with at present. Mr. Singer, however, should perhaps know." On May 5, Longsdon, without making inquiries, sent Browne's letter on to Singer, the chairman of the board of directors. At the trial Watt's counsel put in Longsdon's answer to interrogatory 5 that he believed the statements in the letter to be true. On May 5 Longsdon wrote a long letter to Browne, in which he said that he had long suspected Watt's immorality, but had no proof; that he thought it wicked and cruel that Mrs. Watt, a very old friend of the writer's, should be in the dark when Watt might return to her - did not Browne agree? - that he

(Longsdon) would not speak until he had a sworn statement in his possession, "and only with such proof would I speak, for an interferer between husband and wife nearly always comes off the worst." Could Browne get a sworn statement? "It may even be necessary for you to bribe the women to do such, and if only a matter of a few hundred francs I will pay it and of course the legal expenses." Longsdon's letter describes one of the women who was to make this sworn statement as "a prostitute all her life," a description not contained in Browne's letter. Watt returned to England in May. Without waiting for the sworn statement, on May 12, Longsdon sent the letter to Mrs. Watt. Mr. and Mrs. Watt separated, and Mrs. Watt instituted proceedings for divorce, which apparently are still pending.

Mr. Watt then instituted proceedings against Longsdon for libel - namely (1.) the publication of Browne's letter to Singer; (2.) the publication of the same letter to Mrs. Watt; (3.) Longsdon's letter of May 5 to Browne. The claim alleged: "The plaintiff, the defendant, and one E. A. Browne were at all material times in the employment in Morocco of the Scottish Petroleum Company, Ld., a company now in liquidation, of which one W. M. G. Singer was chairman and had a controlling interest therein," and the defence admitted it: "The facts alleged in paragraph 1 of the statement of claim are admitted." The plaintiff also put in at the trial the defendant's answers to interrogatories that his only information on the subject was derived from Browne's letter, that he made no further inquiries, and that he believed that all the statements in Browne's letter, and in the defendant's letter of May 12 were true. The defendant did not justify, but pleaded privilege. The case was tried before Horridge J. and a jury. The learned judge held that all three publications were privileged, and that there was no evidence of malice fit to be left to the jury. He therefore entered judgment for the defendant. The plaintiff appeals.

By the law of England there are occasions on which a person may make defamatory statements about another which are untrue without incurring any legal liability for his statements. These occasions are called privileged occasions. A reason frequently given for this privilege is that the allegation that the speaker has "unlawfully and maliciously published," is displaced by proof that the speaker had either a duty or an interest to publish, and that this duty or interest confers the privilege. But communications made on these occasions may lose their privilege: (1.) they may exceed the privilege of the occasion by going beyond the limits of the duty or interest, or (2.) they may be published with express malice, so that the occasion is not being legitimately used, but abused.

Parke B. gave the explanation of privileged occasions in these words: "In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits." It will be seen that the learned judge requires: (1.) a public or private duty to communicate, whether legal or moral; (2.) that the communication should be "fairly warranted by any reasonable occasion or exigency"; (3.) or a statement in the conduct of his own affairs where his interest is concerned. Parke B. had given several other definitions in slightly varying terms. For instance, in Cockayne v. Hodgkisson he had directed the jury "Where the writer is acting on any duty, legal or moral, towards the person to whom he writes, or where he has, by his situation, to protect the interests of another, that which he writes under such circumstances is a privileged communication." This adds to the protection of his own interest spoken of in Toogood v. Spyring the protection of the interests of another where the situation of the writer requires him to protect those interests. This, I think, involves that his "situation" imposes on him a legal or moral duty. The question whether the occasion was privileged is for the judge, and so far as "duty" is concerned, the question is: Was there a duty, legal, moral, or social, to communicate? As to legal duty, the judge should have no difficulty; the judge should know the law; but as to moral or social duties of imperfect obligation, the task is far more troublesome. The judge has no evidence as to the view the community takes of moral or social duties. All the help the Court of Appeal can give him is contained in the judgment of Lindley L.J. in Stuart v. Bell: "The question of moral or social duty being for the judge, each judge must decide it as best he can for himself. I take moral or social duty to mean a duty recognized by English people of ordinary intelligence and moral principle, but at the same time not a duty enforceable by legal proceedings, whether civil or criminal. My own conviction is that all or, at all events, the great mass of right-minded men in the position of the defendant would have considered it their duty, under the circumstances, to inform Stanley of the suspicion which had fallen on the plaintiff." Is the judge merely to give his own view of moral and social duty, though he thinks a considerable portion of the community hold a different opinion? Or is he to endeavour to ascertain what view "the great mass of right-minded men" would take? It is not surprising that with such a standard both judges and text-writers treat the matter as one of great difficulty in which no definite line can be drawn.

[The occasions giving rise to a privileged communication follow:]
"either (1.) a duty to communicate information believed to be true to a person who has a material interest in receiving the information, or (2.) an interest in the speaker to be protected by communicating information, if true, relevant to that interest, to a person honestly believed to have a duty to protect that interest, or (3.) a common interest in and reciprocal duty in respect of the subject matter of the communication between
speaker and recipient."

In my opinion Horridge J. went too far in holding that there could be a privileged occasion on the ground of interest in the recipient without any duty to communicate on the part of the person making the communication. But that does not settle the question, for it is necessary to consider, in the present case, whether there was, as to each communication, a duty to communicate, and an interest in the recipient.

First as to the communication between Longsdon and Singer, I think the case must proceed on the admission that at all material times Watt, Longsdon and Browne were in the employment of the same company, and the evidence afforded by the answer to the interrogatory put in by the plaintiff that Longsdon believed the statements in Browne's letter. In my view on these facts there was a duty, both from a moral and a material point of view, on Longsdon to communicate the letter to Singer, the chairman of his company, who, apart from questions of present employment, might be asked by Watt for a testimonial to a future employer. Equally, I think Longsdon receiving the letter from Browne, might discuss the matter with him, and ask for further information, on the ground of a common interest in the affairs of the company, and to obtain further information for the chairman. I should therefore agree with the view of Horridge J. that these two occasions were privileged, though for different reasons. Horridge J. further held that there was no evidence of malice fit to be left to the jury, and, while I think some of Longsdon's action and language in this respect was unfortunate, as the plaintiff has put in the answer that Longsdon believed the truth of the statements in Browne's and his own letter, like Lord Dunedin in Adam v. Ward, I should not try excess with too nice scales, and I do not dissent from his view as to malice. As to the communications to Singer and Browne, in my opinion the appeal should fail, but as both my brethren take the view that there was evidence of malice which should be left to the jury, there must, of course, be a new trial as to the claim based on these two publications.

The communication to Mrs. Watt stands on a different footing. I have no intention of writing an exhaustive treatise on the circumstances when a stranger or a friend should communicate to husband or wife information he receives as to the conduct of the other party to the marriage. I am clear that it is impossible to say he is always under a moral or social duty to do so; it is equally impossible to say he is never under such a duty. It must depend on the circumstances of each case, the nature of the information, and the relation of speaker and recipient. It cannot, on the one hand, be the duty even of a friend to communicate all the gossip the friend hears at men's clubs or women's bridge parties to one of the spouses affected. On the other hand, most men would hold that it was the moral duty of a doctor who attended his sister in law, and believed her to be suffering from a miscarriage, for which an absent husband could not be responsible, to communicate that fact to his wife and the husband. Hawkins J. in Kitson v. Playfair did not have to rule on this point because of the finding of the jury as to malice, and, I think, postponed ruling as long as he could. If this is so, the decision must turn on the circumstances of each case, the judge being much influenced by the consideration that as a general rule it is not desirable for any one, even a mother in law, to interfere in the affairs of man and wife. Using the best judgment I can in this difficult matter, I have come to the conclusion that there was not a moral or social duty in Longsdon to make this communication to Mrs. Watt such as to make the occasion privileged, and that there must be a new trial so far as it relates to the claim for publication of a libel to Mrs. Watt. The communications to Singer and Browne being made on a privileged occasion, there must be a new trial of the issue as to malice defeating the privilege. There must also be a new trial of the complaint as to publication to Mrs. Watt, the occasion being held not to be privileged. The plaintiff must have the costs of this appeal; the costs of the first trial must abide the result of the second trial, the issues being separated.

JUDGMENT BY: GREER L.J

In my judgment no right minded man in the position of the defendant, a friend of the plaintiff and of his wife, would have thought it right to communicate the horrible accusations contained in Mr. Browne's letter to the plaintiff's wife. The information came to Mr. Browne from a very doubtful source, and in my judgment no reasonably right-minded person could think it his duty, without obtaining some corroboration of the story, and without first communicating with the plaintiff, to pass on these outrageous charges of marital infidelity of a gross kind, and drunkenness and dishonesty, to the plaintiff's wife. As regards the publication to the plaintiff's wife, the occasion was not privileged, and it is unnecessary to consider whether there was evidence of express malice. As regards the publication to the chairman of the company, who owned nearly all the shares, and to Mr. Browne, I think on the facts as pleaded there was between the defendant and the recipients of the letters a common interest which would make the occasion privileged, but I also think there is intrinsic evidence in the letter to Browne, and evidence in the hasty and unjustifiable communication to the plaintiff's wife, which would be sufficient to entitle the plaintiff to ask for a verdict on these publications on the ground of express malice.

I think the defendant's conduct in disseminating the gross charges that he did to the plaintiff's wife, and to Mr. Singer, and repeating and to some extent adding to them in his letter to Mr. Browne, and his offer to provide funds for procuring the evidence of the two women in Casa Blanca, affords some evidence of malice which ought to have been left to the jury. It is not for us to weigh the evidence. It will be for the jury to decide whether they are satisfied that in publishing the libels the defendant was in fact giving effect to his malicious or otherwise improper feelings towards the plaintiff, and was not merely using the occasion for the protection of the interests of himself and his two correspondents.

For these reasons I think the appeal should be allowed with costs, a new trial ordered, and the costs of the former trial should abide the event of the new trial.