Queen's Bench

HAMERTON บ.

GREEN.

T. T. 1863. rated by royal charter on the 5th of April 1852. [FITZGERald, J. Can we take notice of that charter? It is not set out in the defence; and it is not a document of which we can take judicial cognizance.]-But it appears on the pleadings that the Law Society is an incorporated body. In the case of Bell v. Parke (a), reference was made to the Articles of War.-[FITzgerald, J. For all that we can know, the Law Society may be incorporated as a company. The charter should have been set out in the defence.]— Surely the Court can take cognizance of a royal charter referred to in the defence.-[HAYES, J. No; the only question is, whether it is sufficiently stated in the plea to allow of our reading it? I do not think that it is.-FITZGERALD, J. If anything turned upon the charter, it would be open to you to apply to amend the defence by setting out the charter.]-At present, the matter will not be further pressed on the Court. But the defendant is entitled to put it in this way, that the Law Society has been incorporated for the general benefit of the profession of attorneys and solicitors, and that a complaint made to such a body, and submitting to their consideration an alleged act of misconduct of the defendant, who on this record admits himself to have been at that time a member of that society, is privileged; and it is not necessary that the person or body to whom the complaint was made should in fact have the power to give redress. It is enough if that person or body can put the matter in a train to enable redress to be obtained. From reported cases it appears that the Law Society is recognised as such by the different Courts. For instance, it appears on motions touching the admission of attorneys under unusual circumstances: In re M'Nally (b).* The communication is privileged if the writer has a personal interest in the subjectmatter of the publication, believes that the act done injures generally the profession to which the party who did it belongs, and (a) 10 Ir. Com. Law Rep. 279. (b) 3 Ir. Com. Law Rep. 576.

* On the 27th of May, in this Term, the Law Society was heard by the Court on an application which it made, that the case of Scovell v. Gardner should not be heard, as the attorney for the defendant was an attorney in England, but not in Ireland.

believes that the body or person to whom the communication was
addressed had power to give redress.-[O'BRIEN, J. Do not forget
that the defendant did not say in the letter that he sought redress.]
-It is not necessary that the defendant should have been in search
of redress, or soliciting anything for himself. The belief that ano-
ther man has done an act contrary to the etiquette of the society
of which he is a member, is an adequate justification to any one
of the public who brings such conduct under the notice of the
Society. Bell v. Parke (a) does not apply to the present case,
because it was admitted that there was a sufficient duty cast on
the defendant if he had taken the proper course.
In that case
the pleading was vicious, on two grounds: it did not aver that
the party to whom the complaint was made had any power to
entertain, or even to receive the complaint, with a view to insti-
tute an inquiry; neither was it averred that the charge was made
for the purpose of promoting an inquiry. Again, in Ede v.
Scott (b), the plea did not justify the charge of felony. Also,
Blagg v. Sturt (c) has on this point been substantially overruled;
for, in Harrison v. Bush (d), Lord Campbell, C. J., said that the
decision in Blagg v. Sturt was to be upheld, on the ground that
in that case there was evidence of express malice on the part of
the defendant: but plainly he was of opinion that it could not
otherwise be supported. Blackham v. Pugh (e) shows that it is
sufficient if "a party having sustained a grievance, or that which
"he thought a grievance, has addressed a complaint to a person
"whom he supposed capable of redressing it, and, in so doing,
"has used defamatory language." If there are reasonable grounds
for the man's belief that the party had power to give redress,
that belief confers a privilege: Wenman v. Ash (f); Woodward v.
Lander (g); Fairman v. Ives (h); M'Dougall v. Claridge (i);
and Harrison v. Bush (k).-[FITZGERALD, J. Any person else in

(a) 10 Ir. Com. Law Rep. 279.
(c) 10 Q. B. S99.

(e) 2 C. B. 623.

(g) 6 C. & P. 548.

(b) 7 Ir. Com. Law Rep. 609.

(d) 5 El. & Bl. 354.

(f) 13 C. B. 844-45.

(h) 5 B. & Ald. 642.

T. T. 1863.
Queen's Bench

HAMERTON

v.

GREEN.

Queen's Bench

HAMERTON บ.

GREEN.

T. T. 1863. the community might have addressed this letter to the Law Society just as well as your client; he had no personal interest in doing so, if he had no duty.]-To a certain extent he had an interest beyond what the other members of society had. But it is sufficient that he did the act on public grounds.-[O'BRIEN, J. The defendant has not alleged any particular ground for writing the letter, by reason of any wrong done to bimself, which would not be open to any other member of society. Anyone in Court might apply to the Law Society to prevent the repetition of such conduct. It is not absolutely necessary for a defendant to specify the particular redress which he sought. [FITZGERALD, J. Is not the case of Harrison v. Bush to be distinguished on the ground that the complaint was made of a Justice of the Peace as such; and that is a character in which every member of the public has an interest ?]-And an attorney is an officer of this Court, engaged in the administration of justice, and in whose character every member of society has an interest. In Turnbull v. Bird (a), belief was held a privilege.-[FITZGERALD, J. In that case, Erle, C. J., distinctly puts the privilege on the ground that the publication was a commentary on the acts of a public man—a man who held a public situation, and whose conduct the defendant had a right to criticise.]-He goes further, and says that the defamatory matter was privileged, if published in the exercise of a right, "as a matter necessary to the protection of the public interests, or the exercise of a public 'right'"-[Fitzgerald, J. Erle, C. J., said:"And the law is, that a man may publish "defamatory matter of another holding any public employment, "if it is a matter on which the public have any interest, within "the limits I will lay down, in accordance with decided cases." That is wholly inapplicable to the present case.]-The plaintiff here is in the position of a man discharging public duties. "If "the occasion be such as repels the presumption of malice, the "communication is privileged "-per Lord Campbell, C. J., in Taylor v. Hawkins (b). A direct personal interest in the subjectmatter of the communication is not always requisite to confer a (b) 16 Q. B. 321.

(a) 2 F. & F. 508.

Queen's Bench

privilege Todd v. Hawkins (a).—[LEFROY, C. J. But that was a T. T. 1863. case in which the defendant had written a private letter to a near relative.]

Macdonogh, in reply.

There is a clear rule, established by the authorities, whereby to determine whether a man brings himself within the limited privilege of the occasion. The rule is that the matters of fact which evidence the occasion creating the privilege must be expressly averred upon the record; and those matters, which must be so expressly averred upon the record, must bring the case to range within the rule that a communication, made bona fide on any subject-matter touching which the party making the communication has an interest or a duty, is privileged if made to a person who has a corresponding interest or a duty, although such communication contains criminating matter which, without that privilege, would afford a ground for an action: Harrison v. Bush (b), acted on in Dickson v. Earl of Wilton (c). It will not therefore suffice for a defendant to plead that he believed that he had a duty or an interest, and that he believed that the party to whom he made the communication had a corresponding duty or interest. No Judge sitting at Nisi Prius could act on such a statement of belief: the Judge must act on the facts as proved, and cannot tell the jury that the privilege existed because the writer believed that he had an interest in the subject-matter of the communication, and that the party to whom he addressed the communication had a corresponding interest. The existence and the bona fides of the belief are for the jury to decide upon: to the Court alone belongs the duty of deciding whether the occasion was one of that nature which creates a privilege.-[FITZGERALD, J. In Harrison v. Bush, Lord Campbell put several instances, and used language which would lead to the conclusion that he thought that belief would be sufficient if reasonable grounds for it existed-if the defendant had reasonable grounds for believing, and (b) 5 El. & Bl. 349.

(a) 8 C. & P. 88.

(c) 1 F. & F. 426.

HAMERTON

v. GREEN.

HAMERTON

V. GREEN.

T. T. 1863. did bona fide believe that the tribunal to which he addressed himself Queen's Bench had power to give the redress for which he applied.]-No doubt, there must be at least both such a bona fide belief and reasonable grounds for entertaining it.-[O'BRIEN, J. But does any case show that, though there were such reasonable grounds and such bona fide belief, those elements would be sufficient to impart a privilege to the communication ?]-No; but the same rule on which the defendant relies has been substantially laid down in the cases already cited of Woodward v. Lander (a), Coxhead v. Richards (b), and Fairman v. Ives (c).

Cur. adv. vult.

June 2.

FITZGERALD, J.

This case was argued before us on the 27th of May 1863. The question arose upon a demurrer to the third defence. The plaint was in libel, and contained two counts. The alleged libel, as I have abstracted it, without the innuendoes, is very short, and purports to be a letter written by the defendant, Mr. Green, to the Incorporated Society of Attorneys and Solicitors for Ireland. [His Lordship, having read the letter, proceeded.] That is the document which is charged to be a defamatory libel, and the publication of which is the subject of this action. It is necessary for me to advert to the plaint, only for the purpose of pointing out that in the first count the innuendoes are of a very extensive character. [His Lordship here stated the important innuendoes.]

The second count is founded on the same libellous publication, but contains no innuendo. But the third defence, to which the demurrer has been taken, is pleaded to both counts. I advert to the extensive character of the innuendoes in the first, not because I intend to found my judgment upon them, but as pointing out one of the difficulties which this case involves,-namely, that which arises upon the construction of the Common Law Procedure Amendment Act, 1853. Two cases have been decided, that is to say, Hemmings v. Gasson (d), which has been followed by the

(a) 6 C. & P. 548.
(c) 5 B. & Ald. 642.

(b) 2 C. B. 595.
(d) 9 El. & Bl, 346.