All ER Reprints*/[1929] All ER Rep /Cassidy v Daily Mirror Newspapers, Ltd - [1929] All ER Rep 117

[1929] All ER Rep 117

Cassidy v Daily Mirror Newspapers, Ltd

COURT OF APPEAL

SCRUTTON, GREER AND RUSSELL LJJ

17, 18 APRIL, 13 MAY 1929

Also reported [1929] 2 KB 331; 98 LJKB 595; 141 LT 404; 45 TLR 485; 73 Sol Jo 348

Libel – Defamatory words – Statement on face of it not defamatory – Defamatory inference drawn by per-
sons aware of certain circumstances – Circumstances not known to publisher of words – Statement defama-
tory of person not mentioned therein.

Liability for libel depends, not on the intention of the defamer, but on the fact of defamation. A person is liable
for the reasonable inferences to be drawn from the words he used, whether be foresaw them or not, and if he
scatters two-edged and ambiguous statements broadcast without knowing or making inquiry about facts ma-
terial to the statements he makes, and the inferences which may be drawn from them, he must be liable to
persons who, knowing those facts, draw reasonable inferences from the words he publishes. A statement
which on the face of it is not defamatory may become so when published to persons who know of certain
circumstances, and it matters not that the publisher did not know the facts which enabled persons to whom
the libel was published to draw an inference defamatory of the plaintiff. Words may be published with refer-
ence to such circumstances, and to such persons knowing the circumstances, as to involve an inference in
regard to someone not in terms mentioned in the statement, which would not be involved by the publication
of the same words either in different circumstances or to persons ignorant of the particular circumstances
which occasion the inference.

Accordingly, where a newspaper published the photograph of a married man accompanied by the following
words: "Mr MC, the racehorse owner, and Miss X, whose engagement has been announced," and the wife of
MC alleged that the photograph and the accompanying words meant, and had been taken by friends of hers
to mean, that MC was a single man and she had not been married to him, but had been living with him as his
mistress,

Held (GREER, LJ, dissenting): the judge at the trial of her action was right in holding that the publication was
capable of a defamatory meaning and the jury were justified in saying that it was defamatory, and, therefore,
the plaintiff was entitled to recover.

Notes

By s 4 of the Defamation Act, 1952, a person who has published a defamatory statement about another unin-
tentionally and innocently may make an offer of amends which, if accepted, will prevent proceedings for libel
being taken, and, if not accepted, can be pleaded in defence to an action by the party defamed.
[1929] All ER Rep 117 at 118

Considered: Ralston v Ralston, [1930] All ER Rep 336; Youssoupoff v Metro-Goldwyn-Mayor Pictures, Ltd
(1934) 50 TLR 581; Bruce v Odhams Press, Ltd, [1936] 1 All ER 287. Applied: Hough v London Express
Newspapers, Ltd, [1940] 3 All ER 31. Referred to: British Russian Gazette and Trade Outlook, Ltd v Associ-

 ated Newspapers, Ltd, Talbot v Associated Newspapers, Ltd, [1933] All ER Rep 320; Newstead v London
Express Newspapers, Ltd, [1939] 4 All ER 319; Knuppfer v London Express Newspapers, Ltd, [1942] 2 All
ER 555.

As to what is a defamatory statement, see 24 HALSBURY'S LAWS (3rd Edn) 17 et seq; and for cases see
32 DIGEST 17 et seq. For Defamation Act, 1952, see 32 HALSBURY'S STATUTES (2nd Edn) 399.

Cases referred to:

(1) Capital and Counties Bank v Henty (1880) 5 CPD 514; 49 LJCP 830; 43 LT 651; 28 WR 851, CA; af-
firmed (1882) 7 App Cas 741; 52 LJQB 232; 47 LT 662; 47 JP 214; 31 WR 157, HL; 32 Digest 21, 121.

(2) Simmons v Mitchell (1880) 6 App Cas 156; 50 LJPC 11; 43 LT 710; 45 JP 237; 29 WR 401, PC; 32 Digest
49, 577.

(3) Australian Newspaper Co v Bennett, [1894] AC 284; 63 LJPC 105; 70 LT 597; 58 JP 604; 6 R 484, PC;
32 Digest 62, 900.

(4) E Hulton & Co v Jones, [1909] 2 KB 444; 78 LJKB 937; 101 LT 330; 25 TLR 597, CA; affirmed, [1910] AC
20; 79 LJKB 198; 101 LT 831; 26 TLR 128; sub nom Jones v E Hutton & Co, Ltd, 54 Sol Jo 116, HL; 32 Di-
gest 17, 77.

(5) Bourke v Warren (1826) 2 C & P 307, NP; 32 Digest 17, 75.

(6) Gibson v Evans (1889) 23 QBD 384; 58 LJQB 612; 61 LT 388; 54 JP 104; 5 TLR 589, DC; 18 Digest
(Repl) 184, 1598.

(7) Nevill v Fine Art and General Insurance Co, [1897] AC 68; 66 LJQB 195; 75 LT 606; 61 JP 500; 13 TLR
97, HL; 32 Digest 72, 1010.

Appeal against a verdict and judgment in an action tried before McCARDIE, J, and a com-
mon jury.

The defendants, in the issue of the "Daily Mirror" of 21 February 1928, published a photo-
graph of a man and a young woman with the following explanatory matter:

"To-day's Gossip. News and Views about Men, Women and Affairs in General. Mr M
Corrigan, the racehorse owner, and Miss [X], whose engagement has been an-
nounced."

The man shown in the photograph was Kettering Edward Cassidy, otherwise known as Michael
Corrigan, and he was the husband of the plaintiff to whom he had been married in 1916. The pho-
tograph was taken at a race meeting where Cassidy posed in company with a lady for a photogra-
pher to whom he said that he was engaged to marry the lady and that the photographer might an-
nounce it. The plaintiff sued the defendants for damages for libel, alleging that the photograph and
words bore a meaning defamatory of the plaintiff, namely, that she was not lawfully married to her
husband, but had lived with him as his mistress, pretending to her friends to be a respectable mar-
ried woman. The defendants denied that the words published bore the meaning alleged, and con-
tended that the matter and words did not constitute a libel. They also said that the words in their
natural and ordinary significance were true in substance and in fact. The learned judge, being of
opinion that the photograph and words were capable of bearing a meaning defamatory of the plain-

 tiff, left it to the jury to decide whether they were in fact defamatory of the plaintiff. The jury found
that they did reasonably bear a defamatory meaning and returned a verdict for the plaintiff for 500
pounds. The defendants appealed on the following grounds: (i) that the judge should have with-
drawn the case from the jury; (ii) that the judge misdirected the jury; and (iii) that the damages were
excessive.
[1929] All ER Rep 117 at 119

WA Jowitt, KC, CJ Conway, KC, and GR Blanco White for the defendants. Serjeant Sullivan, KC,
and Martin O'Connor for the plaintiff.

The following judgments were read.

Cur ad vult,

13 May 1929

SCRUTTON LJ:

The facts in this case are simple. A man named Cassidy, who for some reason also called himself Corrigan
and described himself as a general in the Mexican Army, was married to a lady who also called herself Mrs
Cassidy or Mrs Corrigan. Her husband occasionally came and stayed with her at her flat, and her acquain-
tances met him. Cassidy achieved some notoriety in racing circles and in indiscriminate relations with
women, and at a race meeting he posed, in company with a lady, for a racing photographer, to whom he said
that he was engaged to marry the lady and that the photographer might announce it. The photographer,
without any further inquiry, sent the photograph to the "Daily Mirror" with an inscription: "Mr M Corrigan, the
racehorse owner, and Miss [X], whose engagement has been announced." I omit the lady's name. The "Daily
Mirror" published the photograph and the inscription. This paper was read by the female acquaintances of
Mrs Cassidy or Mrs Corrigan, who gave evidence that they understood from it that that lady was not married
to Mr M Corrigan and had no legal right to take his name, and that they formed a bad opinion of her in con-
sequence. Mrs Cassidy, accordingly, brought an action for libel against the newspaper, setting out these
words with an innuendo, meaning thereby that the plaintiff was an immoral woman who had cohabited with
Corrigan without being married to him.

At the trial counsel for the defendants objected that the words were not capable of a defamatory meaning.
McCARDIE, J, held that they were; the jury found that they did reasonably bear a defamatory meaning, and
awarded the plaintiff 500 pounds damages. The damages were high, but the plaintiff called considerable evi-
dence of social damage to reputation; and the defendants' solicitor suggested, when the plaintiff alleged she
was married to Mr Corrigan, that there must be some mistake, and even after she had produced her mar-
riage certificate, did not admit the marriage. It is not possible to interfere with the damages, and some allega-
tions of misdirection and wrongful admission of evidence came to nothing. The real questions involved were:
(i) Was the alleged libel capable of a defamatory meaning? (ii) As the defendants did not know the facts
which caused the friends of Mrs Cassidy to whom they published the words to draw defamatory inferences
from them about the plaintiff, were they liable for those inferences?

The alleged libel does not mention the plaintiff, but I think it is clear that words published about A may indi-
rectly be defamatory of B For instance, "A is illegitimate." To persons who know the parents, those words
may be defamatory of the parents. Or again, "A has given way to drink; it is unfortunately hereditary." To per-
sons who know A's parents these words may be defamatory. "A holds DLitt degree of the university at X, the
only one awarded." To persons who know B, who habitually describes himself - and rightly so - as "DLitt of
X," these words may be capable of a defamatory meaning. Similarly, to say that A is a single man or a bache-
lor may be capable of a defamatory meaning if published to persons who know a lady who passes as Mrs A

 and whom A visits. As LORD BLACKBURN says in Capital and Counties Bank v Henty (1) (7 App Cas at p
771):

"There are no words so plain that they may not be published with reference to such circum-
stances, and to such persons knowing these circumstances, as to convey a meaning very dif-
ferent from that which would be understood from the same words used under different circum-
stances,"

or, as COTTON, LJ, says in the same case (5 CPD at p 536):

"One must consider, not what the words are, but what conclusion could reasonably be drawn
from it, as a man who issues such a document is answerable

[1929] All ER Rep 117 at 120

not only for the terms of it, but also for the conclusion and meaning which persons will reason-
ably draw from and put upon the document."

It was argued that the words were not capable of the meaning that Corrigan was a single man, for they might
mean that Corrigan was intending to seduce a woman under promise of marriage, or that he was divorced
and could marry. On this I would remark that it would be so unusual for a seducer publicly to make his untrue
representations, that the jury might well reject this meaning. Also, that I do not agree with some dicta, that if
words are capable of several meanings, some defamatory and some innocent, they should not be left to the
jury. I agree with the view of SIR MONTAGUE SETH in Simmons v Mitchell (2) when he said (6 App Cas at p
158):
"The judge must decide if the words are reasonably capable of two meanings; if he so decide,
the jury must determine which of the two meanings was intended."

And by "intended" I understand that a man is liable for the reasonable inferences to be drawn from the words
he used, whether be foresaw them or not, and that if he scatters two-edged and ambiguous statements
broadcast, without knowing or making inquiry about facts material to the statements he makes, and the infer-
ences which may be drawn from them, he must be liable to persons who, knowing those facts, draw reason-
able inferences from the words he publishes. As LORD HERSCHELL said in Australian Newspaper Co v
Bennett (8) ([1894] AC at p 287):
"It is not disputed that, whilst it is for the court to determine whether the words used are capa-
ble of the meaning alleged in the innuendo, it is for the jury to determine whether that meaning
was properly attached to them. It was therefore the province of the jury in the present case to
determine whether the words used were written of the plaintiff, and whether they bore the
defamatory sense alleged."

In my view, the words published were capable of the meaning: "Corrigan is a single man," and were pub-
lished to people who knew the plaintiff professed to be married to Corrigan; it was for the jury to say whether
those people could reasonably draw the inference that the so-called Mrs. Corrigan was in fact living in im-
moral cohabitation with Corrigan, and I do not think their finding should be interfered with.

But the second point taken was that the defendants could not be liable for the inference drawn because they
did not know the facts which enabled some persons to whom the libel was published, to draw an inference
defamatory of the plaintiff. This was rested on some dicta of BRETT, LJ, in Henty's Case (1) that the evi-
dence which made apparently innocent statements defamatory must be "known both to the person who
wrote the document and the person to whom it was published." This, I think, was originally obiter, and, since

 the decision in Hulton & Co v Jones (4) is no longer law. The statement in FARWELL, LJ's judgment in that
case in the Court of Appeal ([1909] 2 KB at p 478) is:
"The rule is well settled that the true intention of the writer of any document, whether it be con-
tract, will, or libel, is that which is apparent from the natural and ordinary interpretation of the
written words; and this, when applied to the description of an individual, means the interpreta-
tion that would be reasonably put upon those words by persons who know the plaintiff and the
circumstances."

The whole of the passages in that judgment on pp 478 and 479 of [1909] 2 KB are worthy of attention. This
judgment was approved by LORD GORELL and LORD ATKINSON in the House of Lords, and repeated by
LORD SHAW LORD SHAW says ([1910] AC at p 26):
[1929] All ER Rep 117 at 121
"My Lords, I demur to the observation so frequently made in the argument that these principles
are novel.Sufficient expression is given to the same principles by ABBOTT, CJ, in Bourke v
Warren (5) in which that learned judge says:

'The question for your consideration is whether you think the libel designates the plaintiff in
such a way as to let those who knew him understand that he was the person meant. It is not
necessary that all the world should understand the libel; it is sufficient if those who know the
plaintiff can make out that he is the person meant.'

I think it is out of the question to suggest that that means 'meant in the mind of the writer,' or of
the publisher; it must mean 'meant by the words employed.' The late COLERIDGE, CJ, dealt
similarly with the point in Gibson v Evans (6) when, in the course of the argument, he remarked
(23 QBD at p 386): 'It does not signify what the writer meant; the question is whether the al-
leged libel was so published by the defendant that the world would apply it to the plaintiff.'"

In my view, since Hulton & Co v Jones (4) it is impossible for the person publishing a statement which, to
those who know certain facts, is capable of a defamatory meaning in regard to A to defend himself by saying,
"I never heard of A and did not mean to injure him." If he publishes words reasonably capable of being read
as relating directly or indirectly to A and to those who know the facts about A capable of a defamatory mean-
ing, he must take the consequences of the defamatory inferences reasonably drawn from his words.

It is said that this decision would seriously interfere with the reasonable conduct of newspapers. I do not
agree. If newspapers, who have no more rights than private persons, publish statements which may be
defamatory of other people, without inquiry as to their truth, in order to make their paper attractive, they must
take the consequences if, on subsequent inquiry, their statements are found to be untrue or capable of
defamatory and unjustifiable inferences. No one could contend that "M Corrigan, General in the Mexican
Army," was "A source in whom we have full confidence." To publish statements first and inquire into their truth
afterwards may seem attractive and up to date. Only to publish after inquiry may be slow, but at any rate it
would lead to accuracy and reliability. In my opinion, the appeal should be dismissed with costs.

GREER LJ:

The plaintiff, Mrs Mildred Anna Cassidy, the wife of Fettering Edward Cassidy, otherwise known as Michael
Corrigan, brought this action to recover damages in respect of a picture and certain words appearing there-
under in an issue of the defendants' newspaper, the "Daily Mirror," dated 21 February 1928. The picture con-
sisted of a portrait of her husband and a lady, and underneath these words were printed: "Mr M Corrigan, the
racehorse owner, and Miss X, whose engagement has been announced." Both the picture and the words are
in themselves unobjectionable. They contain in their ordinary signification no defamatory statement about

 anybody, and it was necessary for the success of the plaintiff in the action that she should establish by innu-
endo that by the picture and the words the defendants said something which was defamatory of her. She
therefore pleaded in her statement of claim that by the said words the defendants meant and intended and
were understood to mean that the said Fettering Edward Cassidy, otherwise known as M Corrigan, that is to
say, the plaintiff's husband, had become engaged to be married to the said Miss X So far the innuendo mere-
ly stated the ordinary meaning of the words in the alleged libel, but the innuendo went on to allege an ex-
tended meaning, to the effect that the said Fettering Edward Cassidy, otherwise known as M Corrigan, was
not a man bound in lawful wedlock to the plaintiff, that the plaintiff was not lawfully married to her husband,
that the plaintiff was living in adultery with him, and that she was a dissolute and immoral woman and a de-
spicable person who had imposed upon her friends
[1929] All ER Rep 117 at 122

and acquaintances and upon such members of the public as knew her, by pretending to be a respectable
married woman, whereas she had been living in concubinage with the said Kettering Edward Cassidy, other-
wise known as M Corrigan, for many years.

In order to succeed in her action the plaintiff was bound to show that, reasonably interpreted, the words used
in the newspaper were intended to convey the meaning set out in the innuendo, being judged not by what
was in the mind of the writer, but what appears from the words he has used. In my judgment, it was not
enough for her to show that people who knew her jumped to the conclusion that she was living with Corrigan
as his mistress. She was bound to show that, reasonably interpreted, the words of the alleged libel contained
an allegation to that effect. She called as her witnesses three ladies who knew her as the wife of Cassidy and
knew that her husband was the man who owned racehorses under the name of Corrigan. Each of these
ladies knew that her husband, as they admitted in their evidence, was a blackguard who had treated her
badly and had been unfaithful to her. They knew that she was living apart from Cassidy, but had seen him on
several occasions visiting the shop where she was employed, and when they saw the paragraph in the "Daily
Mirror" they appear to have jumped to the conclusion that she was a dishonest woman who had been de-
ceiving them and had been living in concubinage with Cassidy. None of the ladies said that, reading the
words of the alleged libel, they came to the conclusion that the reasonable meaning to be attributed to them
was that Cassidy was not the plaintiff's husband. The learned judge left the case to the jury, and the jury
found a verdict for the plaintiff for 500 pounds damages. The defendants appeal, and this court is asked to
say that the judge ought to have decided that there was no case to go to the jury, because the words in their
ordinary meaning are not defamatory of the plaintiff, and, reasonably interpreted, they do not contain any
such defamatory statements as are attributed to them by the innuendo.

In my judgment, this appeal ought to succeed. I think so for two reasons. First, it is not sufficient to establish
liability for a witness to prove that by reason of some fact to which the libel refers he draws an unfavourable
inference against the plaintiff. That is not sufficient to justify a verdict that the words in question are libellous.
The jury must be satisfied by evidence that on a reasonable interpretation of the words used the innuendo is
proved to be an implicit part of the statement made by the defendants. In his speech in Nevill v Fine Art and
General Insurance Co (7) ([1897] AC at p 73) LORD HALSBURY uses these words:

"That stands, therefore, as it appears to me, a long way distant from what was done in Henty's
Case (1) where a communication was made to the persons who had to make payments to the
brewer in the particular case, and they were informed that the cheques of such and such a
bank were not to be received in future. That undoubtedly, as LORD WATSON points out, might
possibly or probably by some persons have been understood to convey some reflection upon
the solvency of the particular bank upon which the cheques were drawn, but because some
persons may choose, not by reason of the language itself, but by reason of some fact to which
it refers, to draw an unfavourable inference, it does not follow that therefore such matter is libel-
lous."

Those observations appear to me to apply to the present case. The language of the alleged libel refers to the
fact of the announcement of Mr Corrigan's engagement, and some persons, that is to say, the ladies who

gave evidence, have chosen, not by reason of the language of the alleged libel but by reason of a fact to
which it refers, to draw an unfavourable inference against Mrs Corrigan, but none of the three has stated that
she interpreted the words as containing an allegation that Mrs Corrigan was not the wife of Corrigan, and if
they had done so I should myself have come to the conclusion that they put upon the words an interpretation
which they could not reasonably bear.
[1929] All ER Rep 117 at 123

It has been suggested that if several inferences may be drawn by the persons to whom the alleged libel is
published, and one of them is injurious to the reputation of the plaintiff, the one injurious imputation may rea-
sonably be inferred to be the meaning of the words, and the case should be left to the jury. In my judgment,
this view is not in accord with the decision of the majority of the House of Lords in Henty's Case (1). LORD
SELBORNE, LC, says (7 App Cas at p 744):
"In deciding on the question whether the words are capable of that meaning [that is, the mean-
ing stated in the innuendo] he ought not, in my opinion, to take into account any mere conjec-
tures which a person reading the document might possibly form as to some out of the various
motives or reasons which might have actuated the writer, unless there is something in the doc-
ument itself or in other facts properly in evidence which to a reasonable mind would suggest,
as implied in the publication, those particular motives or reasons."

This I take to mean that where there are several possible explanations of the words used, only one of which
is defamatory, it is not open to the jury to find that to be the meaning of the words unless there is something
in the documents or facts properly in evidence that would make it reasonable to attribute to the words a
defamatory meaning. LORD WATSON says (7 App Cas at p 788):
"But besides the one injurious inference suggested by the appellants, there are many other
inferences of an innocent character, which naturally might, and probably would, suggest them-
selves to any reader of the circular who was not induced to put a malignant construction upon it
by some cause such as is not proved to have existed in the case of any one of the persons to
whom it was sent."

LORD BRAMWELL says (7 App Cas at p 792):

"I will suppose I am wrong in thinking no inference of insolvency can be drawn from the circular
and will now deal with the third, namely, that the inference to be drawn from the circular was
that the defendants for some reason or reasons, of which the insolvency of the plaintiffs might
be one, would not take in payment cheques on the plaintiffs' branches. Is that actionable? I
think not. The question seems to me one of entire novelty, strange as it may be, that such a
question should now arise for the first time. I cannot think that an action lies in such a case. I
think that the defamer is he who, of many inferences, chooses a defamatory one."

The other reason why I think the decision of the learned judge was wrong is that, in my view, notwithstanding
Hulton & Co v Jones (4) I think the law still is as it was laid down by LORD ESHER in Henty's Case (1). If
intrinsic facts are relied upon for the purpose of converting that which would otherwise be an innocent state-
ment of fact into a defamatory libel, the extrinsic facts must be known both to the person who framed the al-
leged libel and the persons to whom it was published. In this case I take it as common ground that those who
were responsible for the publication of the photograph and the words in question did not know that Corrigan
was a married man. In the report of the decision of the Court of Appeal in Henty's Case (1) LORD ESHER,
then BRETT, LJ, uses these words (5 CPD at p 539):
"The first question for the jury is whether the document would be read in a defamatory sense by
persons of ordinary reason in the position of those to whom it is published. If, in the opinion of
the jury, it would not be so read according to the prim& facie meaning of the language, then
there is a further question - if there is any evidence upon which it can be raised - whether there

 were facts known both to the persons who penned the alleged libel and to the persons to whom
it was published, which would lead the latter reasonably to put upon the document the con-
struction that, having a secondary defamatory sense, it was issued ironically, or otherwise than
in the primary sense of the language. With regard to the second proposition, I think it is neces-
sary that the facts should be known both

[1929] All ER Rep 117 at 124

to the person who indites the libel and to the persons to whom it is published, because if facts
are known to the latter persons from which they might reasonably suppose that the document
is defamatory, but those facts are not known to the person who wrote it, if he were held liable
he would be made liable for doing that which, by the hypothesis, he could have no reason to
suppose would injure anybody, the language used being such as, in its ordinary sense, would
not be defamatory of anybody."

I cannot find in the speeches of the majority of the Lords who decided this case in the House of Lords any
dissent from the view expressed in the Court of Appeal by LORD ESHER, though they deal with the case
from a slightly different angle, but in the course of his speech LORD BLACKBURN seems to me to use
words which indicate that he agreed with the opinion expressed by LORD ESHER He says (7 App Cas at p
771):
"Independently of all questions as to privilege, the manner of the publication, and the things
relative to which the words are published, and which the person publishing knew, or ought to
have known, would influence those to whom it was published in putting a meaning on the
words, are all material in determining whether the writing is calculated to convey a libellous im-
putation."

He uses the words slightly different from LORD ESHER, "which the person publishing knew, or ought to
know," and I think one must apply LORD ESHER'S words in the sense of that which they "knew or ought to
have known." If it could be said in this case that those responsible for the publication in question knew or
ought to have known that Corrigan was a man who had a wife living at the time, or was a man with whom
there was a lady living and claiming to be his wife, it may be that the question whether the words were or
were not defamatory ought to have been left to the jury, but there was no evidence from which it is reason-
able to conclude that they knew or ought to have known that he was a married man. They were surely enti-
tled to suppose that as he said he was engaged to marry the lady in question he was not in fact a married
man, unless they knew to the contrary.

One or two illustrations may be given which indicate the danger of carrying the law of libel as far as it is ar-
gued in this case it should be carried. It is written of AB that he is ill-mannered and uneducated. It turns out,
though the writer did not know it, that AB was in fact brought up by his uncle. Could it be said that the uncle
could succeed in an action alleging that the words meant that he had badly brought up and educated AB? A
writer might state that AB is an ignoramus. Unknown to the writer AB may have Spent five years under the
tuition of XY at Eton. Could XY allege that this was a libel upon him, the writer having been ignorant, and
having no reason to suppose, that AB had been at Eton? Take another case. A, being under the mistaken
impression that he saw Mr B walking away from a theatre with Miss C, says next morning to an acquain-
tance, "I saw B and C leaving the theatre together last night." Unknown to A, but to the knowledge of his ac-
quaintance, C had been murdered by the man with whom she left the theatre. Could A be successfully sued
by B for saying he had murdered CIf the case against the present defendants was rightly left to the jury, A
could be so sued. To me it seems quite certain that it would be the duty of the judge to rule that the words
were incapable of being so interpreted.

The decision of the House of Lords in Hulton & Co v Jones (4) which was very much relied upon by the plain-
tiff, does not, in my opinion, afford sufficient authority for deciding the present case in favour of the plaintiff. In
that case the words complained of appeared in form to relate to an existing individual who was named. The
words, if applied to an existing person, were clearly defamatory, and the House of Lords, affirming the Court

of Appeal, held that the mere fact that the writer did not intend to injure the plaintiff afforded no defence to the
action. It seems clear that the writer took the risk of making defamatory statements about an individual by
name when he ought to have known that it was possible that there might be a person bearing that name who
would be understood to be meant by the words
[1929] All ER Rep 117 at 125

which were used. LORD LOREBURN, in giving judgment, pointed out that a person charged with libel cannot
defend himself by showing that he intended in his own breast not to defame, or that he intended not to de-
fame the plaintiff, if in fact he did both, and that his remedy was to abstain from using defamatory words. In
the present case no defamatory words were used about anybody, and the defendants are, in my judgment,
entitled to succeed, not because in his own mind the writer did not intend to defame, but because, in fact, he
has not used language which reasonable persons either have, or could have, interpreted as defamatory of
the plaintiff. As FARWELL, LJ, pointed out in the Court of Appeal ([1909] 2 KB at p 480):
"So, the intention to libel the plaintiff may be proved not only when the defendant knows and
intends to injure the individuals, but also when he has made a statement concerning a man by
a description by which the plaintiff is recognised by his associates, if the description is made
recklessly, careless whether it hold up the plaintiff to contempt and ridicule or not. In such a
case it is no answer for the defendant to say that he did not intend the plaintiff because he had
never heard of him; be intended to describe some living person; he can suggest no one else;
and the plaintiff proves that he is believed by his acquaintances and friends to be the person
aimed at, and has suffered damage thereby."

These words have no application where it cannot be said there is any reference by name, by description, or
by necessary inference to the plaintiff in the words complained of.

For these reasons, in my judgment, the plaintiff gave no evidence which would support the meaning alleged
by the innuendo, and the words, in their ordinary meaning, not being defamatory, the judge should have di-
rected the jury to find a verdict for the defendants. I need hardly say that I have hesitated considerably before
coming to a decision different from that which has commended itself to SCRUTTON, LJ, and RUSSELL, LJ,
but I have, at any rate, the satisfaction of feeling that my interpretation of the law is more consistent with jus-
tice and fairness than the view which they have felt compelled by the authorities to adopt. It must be remem-
bered that there is no special law for the purposes we are considering applicable to libels by newspapers. If
the decision of my brethren in this case is right, it would be right to say that I could be successfully sued for
damages for libel if, having been introduced to two apparently respectable people as persons engaged to be
married, I repeated that statement in a letter to a friend, on the ground that my words meant that a lady total-
ly unknown to me, who was in fact the wife of the man, was not his wife, and was living in immoral inter-
course with him. It seems to me wholly unreasonable to hold that my words could be construed as meaning
anything of the kind, and wholly unjust that I should be made to pay damages because some unduly suspi-
cious person drew an inference from the fact I stated, which was derogatory to the woman in question, and I
am afraid that for the future people will have to walk with wary steps through life and hesitate a long time be-
fore they accept the apparent bachelordom of any one they know as a real fact. The desire to find in the law
rules which are consonant with reasonable notions of what is fair and just is sometimes an imperfect guide. I
fail, however, to find in any of the decisions anything which compels me to come to the conclusion that the
words used by the defendants in this case are reasonably capable of the meaning alleged in the innuendo.
As I have indicated, this case, on its facts, in my judgment, differs entirely from E Hulton & Co v Jones (4)
where the words complained of were, on the fact of them, defamatory, and were such as would naturally be
applied to a man, if one existed, who bore the name mentioned in the libel. In my opinion the judge should
have ruled that there was no case to go to the jury, and the result of this appeal should be: appeal allowed
with costs, and judgment entered for the defendants with costs.
[1929] All ER Rep 117 at 126

RUSSELL LJ:

The relevant facts in this appeal are few, and may be briefly stated. The defendants, in the issue of the "Daily
Mirror" for 21 February 1929, published a photograph of a man and a young woman with the following words
beneath it: "Mr M Corrigan, the racehorse owner, and Miss [X], whose engagement has been announced."
The man shown in the photograph was the lawful husband of the plaintiff, to whom he had been married in
1916. The plaintiff sued the defendants for damages for libel, alleging that the photograph and words bore a
meaning defamatory of the plaintiff, namely, that the plaintiff was not lawfully married to her husband, but had
lived with him as his mistress, pretending to her friends to be a respectable married woman. The judge, being
of opinion that the photograph and words were capable of bearing a meaning defamatory of the plaintiff, left
it to the jury to decide whether they were in fact defamatory of the plaintiff. The jury returned a verdict for the
plaintiff for 500 pounds. The defendants appeal on three grounds: (i) That the judge should have withdrawn
the case from the jury; (ii) that the judge misdirected the jury; and (iii) that the damages were excessive. On
the question of misdirection and excessive damages, there is no reason, in my opinion, for interfering with
the verdict and judgment on either of those grounds.

The remaining ground of appeal, however, raises questions and considerations of difficulty. The defendants
contend that the published matter is not, on the face of it, defamatory at all either of the plaintiff or of anyone
else. That must, I think, be conceded. Nevertheless, words may be published with reference to such circum-
stances, and to such persons knowing the circumstances, as to convey a meaning which would not be at-
tributable to them in different circumstances: see per LORD BLACKBURN in Capital and Counties Bank v
Henry (1) (7 App Cas at p 771). So, too, I think, words may be published with reference to such circum-
stances, and to such persons knowing the circumstances, as to involve an inference in regard to someone
not in terms mentioned in the statement, which would not be involved by the publication of the same words
either in different circumstances or to persons ignorant of the particular circumstances which occasion the
inference. The first thing to consider in this case is this question: Can the published matter be reasonably
construed as a statement that Mr Corrigan is an unmarried man? For myself I should answer that the pub-
lished matter may not only reasonably be so construed, but must necessarily be so construed. I discard as
too far fetched the suggestion that it might refer to the announcement of an engagement made by a married
man either in anticipation of a divorce or with a view to seduction. If, then, the published matter is a state-
ment that "AB" is an unmarried man, can "AB's" wife successfully complain of that as a statement defamato-
ry of her? This must depend upon (i) whether the statement that "AB" is an unmarried man is capable of be-
ing defamatory of "AB's" wife, and (ii) whether the statement is in fact defamatory of "AB's" wife. McCARDIE,
J, came to the conclusion that in the present case the published matter was capable of being defamatory of
the plaintiff. I can see no reason for differing from that view. The Lord Chancellor in Hulton & Co v Jones (4)
used the following language, which seems appropriate to the present case ([1910] AC at p 23):

"Libel consists in using language which others knowing the circumstances would reasonably
think to be defamatory of the person complaining of and injured by it. A person charged with
libel cannot defend himself by showing that he intended in his own breast not to defame, or that
he intended not to defame the plaintiff, if in fact he did both."

Applying those words to a statement - which for this purpose must be false - that "AB" is an unmarried man,
is it a reasonable view that people who have known a lady who has called and is calling herself the wife of
"AB" might think the statement to be defamatory of the lady? In my opinion, the view is an eminently reason-
able one. Whether, being capable of a defamatory meaning, the statement was in the circumstances of the
particular case defamatory of the plaintiff is another
[1929] All ER Rep 117 at 127

question. That is a question of fact for the jury to answer according to their view of the evidence adduced.

It was argued by the defendants that no liability attaches to the publisher of a statement which is not, on the
fact of it, defamatory, but which only becomes defamatory in the light of outside facts, unless those facts are
known both to the person who publishes the statement and to the persons to whom it is published. For this
proposition reliance was placed upon the views expressed in Henty's Case (1) by BRETT, LJ, in the Court of
Appeal. So far as concerns knowledge on the part of the persons to whom the statement is published no dif-

ficulty presents itself. If the defamatory meaning only arises from a knowledge of outside facts, and the per-
sons to whom the statement is published are ignorant of those facts, those persons could not reasonably
attach a defamatory meaning to the statement. So far as concerns knowledge on the part of the person by
whom the statement is published, I feel difficulty in supporting the proposition. BRETT, LJ, undoubtedly as-
serts it, and as I understand him he bases the publisher's freedom from liability upon absence of intention by
him to defame. That is the only meaning which I can attribute to the following language:
"I think it is necessary that the facts should be known both to the person who indites the libel
and to the persons to whom it is published, because if facts are known to the latter persons
from which they might reasonably suppose that the document is defamatory, but those facts are
not known to the person who wrote it, if he were held liable be would be made liable for doing
that which by the hypothesis he could have no reason to suppose would injure anybody, the
language used being such as in its ordinary sense would not be defamatory of anybody."

It was said that similar views were expressed by LORD BLACKBURN in the House of Lords, but I am unable
to satisfy myself that he did so. But however that may be, the views so expressed are only obiter dicta, and
cannot, in my opinion, survive the decision of the House of Lords in Hulton & Co v Jones (4).

Liability for libel does not depend on the intention of the defamer, but on the fact of defamation. If you once
reach the conclusion that the published matter in the present case amounts to or involves a statement that
Mr Corrigan is an unmarried man, then, in my opinion, those persons who knew the circumstances might
reasonably consider the statement defamatory of the plaintiff. The statement being capable of a meaning
defamatory to the plaintiff, it was for the jury, upon the evidence adduced, to decide whether the plaintiff had
been libelled or not. It was said that it would be a great hardship on the defendants if they were made liable
in consequence of a statement, innocent on its face and published by them in good faith. The answer to this
appeal for sympathy seems to be to point out that, in stating to the world that Mr Corrigan was an unmarried
man - for that construction is the foundation of their liability - they in fact stated that which was false. From a
business angle, no doubt, it may pay them not to spend time or money in making inquiries or verifying state-
ments before publication; but if they had not made a false statement they would not now be suffering in dam-
ages. They are paying a price for their methods of business. A further point was suggested in argument of
this nature. It was said that the published matter might possibly be construed by those who knew of the exis-
tence of the plaintiff as meaning that Mr Corrigan bad, by reason of a divorce obtained by his wife, ceased to
be her husband. If that were so, then it was argued that the published matter, being capable of a meaning in
no way defamatory of the plaintiff, should only have that meaning attributed to it, and that, accordingly, it was
not open either to the judge to leave the case to the jury or to the jury to find libel. The foundation of this ar-
gument rested on the following passage from BRETT, LJ's judgment in Henty's Case (1) (5 CPD at p 541):
[1929] All ER Rep 117 at 128
"It seems to me unreasonable that when there are a number of good interpretations the only
had one should be seized upon to give a defamatory sense to the document."

It was suggested that in face of that opinion the innocent interpretation, if there be one, must always prevail. I
cannot follow how this can be right, for if it be, then how can the rules survive that the judge must decide
whether the statement is capable of a defamatory meaning, and that the question of libel or no libel is for the
jury? Each of these rules postulates the possibility of various meanings, defamatory and non-defamatory,
attaching to the statement. In truth, when the context is examined, it will be found that BRETT, LJ's statement
is addressed only to the question whether, as regards the particular customers to whom - and to whom only -
the alleged libel in Henty's Case (1) was published, it would be unreasonable for them, who knew the facts,
to attribute to the document its only possible defamatory meaning. The quotation from the lord justice does
not, in my opinion, support the argument which was based upon it. When all is said and done, the defen-
dants have published to the world the statement that Mr Corrigan was, on 21 February 1928, an unmarried
man. That statement was, in fact, false, and has been found by the jury to be defamatory of the plaintiff, and
to have caused her damage. There is ample evidence to support the findings, unless we can say that the
published matter was incapable of being defamatory of the plaintiff. This I am not prepared to do. For these
reasons I agree with SCRUTTON, LJ, that this appeal fails.

 Appeal dismissed.

Reported by EJM CHAPLIN, ESQ, Barrister-at-Law.