House Of Lords Before LoRD ATKIN, LoRD RUSSELL of KILLOWEN. and LORD MACMILLAN The HOUSE allowed this appeal by the de- fendant, Mr. Alexander Frederick Churchill Sim, of Old Barton, Cookham Dean, Berkshire, from an order of the Court of Appeal (Lord Justice Greer and Lord Justice Roche, Lord Justice Slesser dissenting), dated June 6, 1935, which dismissed his appeal from a verdict and judgment for ?250 damages for an alleged libel entered against him in an action tried by Mr. Justice Talbot and a common jury. The action was brought by the respondent, Mr. 'Herbert Mercer Stretch, of Applewood, Cookham Dean, claiming damages from Mr. Sim for the enticement away of his (Mr. Stretch's) servant, and for alleged libel. Mr. Stretch complained that on April 12, 1934 while a girl named Edith Saville was in his ser- vice as housemaid at Applewood, Mr. Sim wrongfully induced and procured her to leave his service unlawfully and without his consent and against his will. Mr. Stretch also complained that on the same day Mr. Sim falsely and maliciously sent him the following telegram: - Edith has resumed her service with us to-day. Please send her possessions and the money you borrowcd, also her wages, to Old Barton.-Sim. The plaintiff alleged that by the words in the telegram Mr. Sim meant that he (Mr. Stretch) was in pecuniary difficulties and that by reason thereof he was compelled to borrow and had in fact borrowed money from the housemaid, that he had failed to pay her her wages, and that he was a person to whom no one ought to give credit. Mr. Sim denied that he had enticed the girl to leave the plaintiff's service. He also denied that he rTote or published any of the words complained of. He said that the words of the telegram were not defamatory of Mr. Stretch, that the occasion was one of qualified privilege, and that, if he did send the telegram, he did so in discharge of a moral and social duty to Miss Saville, who was one of his former em- ployees and was about to re-enter his service. The jury awarded Mr. Stretch ?25 damages on the enticement claim, and ?250 damages for libel. Judgment was accordingly entered for Mr. Stretch for ?275, with costs. Mr. Sim appealed to the Court of Appeal only against the verdict and judgment on the issue of alleged libel. That Court (Lord Justice Slesser dissenting) dismissed the appeal. Mr. Sim now appealed against that decision. The case is reported in Thze Times of Febru- ary 21 and June 7, 1935. Mr. G. 0. Slade and Mr. Neville Faulks appeared for the appellant; Mr. J. P. Eddy, K.C., and Mr. F. H. Lawton for the respondent. JUDGMENT LORD ATKIN, in giving judgment, said that the appeal reached their Lordships' House in litigation arising out of a quarrel between neighbours residing at Cookham Dean, and concerned the vicissitudes of a domestic servant, Edith Saville, whose fortune it was to be employcd at successive times by both the plaintiff and the defendant. On the first cause of action the jury found a verdict for the plaintiff for ?25 damages. There was abundant evidence to justify the verdict, and there had been no appeal from it. Before dealing with the appeal in respect of the alleged libel it was necessary to explain the reference in the telegram to " money borrowed." It appeared that at the end of March, " a week just before Easter," which that year fell on April 1, Mrs. Sim had been away for a week. She had left money with Edith to pay the books, but had arranged, on Edith's suggestion, that anything over Edith should pay ou, of her ovm money. Apparently Edith paid two small items amounting to 14s., which sum was outstanding on April 12 and was in fact paid on April 15. At the close of the plaintiff's case counsel for the defendant submitted that the words of the telegram were incapable either of the mean- ing alleged in the innuendo or of any defama- tory meaning. The leamed Judge rejected the submission, and counsel for the plaintiff urged the innuendo before the jury as he had done both in the Court of Appeal and in their Lordships' House. It appeared to him (Lord Atkin) that the alleged innuendo was fantastic and that, the words used were in their ordinary meaning incapable of being understood by reasonable persons as conveying an imputation on the plaintiff's financial credit. It was in his opinion the duty. of the Judge so to have held, and to have withdrawn the count alleging the innuendo from the jury. The question then was whether the words in their ordinary signification were capable of being defamatory. Judges and text-book writers alike had found difficulty in defining with precision the word " defamatory." The conventional phrase exposing the plaintiff to hatred, ridicule, and contempt was probably too narrow. The question was complicated by having to consider the person, or class of persons, whose reaction to the publication was the test of the wrongful character of the words used. He (Lord Atkin) did not intend to ask their Lordships to lay down a formal definition, but after collating the opinions of many authorities he proposed in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally ? Assuming such to be the test of whether words were defamatory or not, there was no dispute as to the relative function of Judge and jury, of law and fact. It was well settled that the Judge must decide whether the words were capable of a defamatory meaning. That was a question of law: was there evidence of a tort ? If they were capable then the jury was to decide' whether -they were in fact defama-. tory. In the present case it was material to notice that there was no evidence that the words were published to anyone who had any know- ledge at all of any of the facts. There wras no direct evidence that they were published to anyone who had ever heard of the plaintiff. The post office officials at Maidenhead would not be presumed to know him, and the House were left without any in- formation as to the officials at Cookham Dean. The plaintiff and his wife dealt at the shop at which was the sub-post office, but there was no evidence that the shopkeeper was the tele- graph clerk: the probability was that he was not. It might, however, be inferred that the publication of the telegram at Cookham Dean was to someone who knew the plaintiff. What would he or she learn by reading the tele- gram ? That Edith Saville had been in the plaintiff's employment; that she had that day entered the defendant's employment; and that the former employer was requested to send on to the new place of employment the servant's possessions together with the money due to her for money borrowed and for wages. How could perusal of that communication tend to lower the plaintiff in the estimation of the right-thinking peruser who knew nothing of the circumstances but what he or she derived from the telegram itself ? The defamatory imputation was said to be in the words " the money you borrowed " coupled with the request for the return of it sent in a telegram. It was said by the Judge at the trial, and accepted by the two members of the Court of Appeal who affirmed the judg- ment, that the words were capable of con- veying to anybody that the plaintiff had acted in a mean way borrowing money from his own maid and not paying her as he was required to, and required to by telegram, and also with- holding her wages. With the greatest respect, that was imputing to the words a suggestion of meanness both in borrowing and in not re- paying which he (Lord Atkin) found it im- possible to extract from their ordinary mean- ing. The sting was said to be in the borrow- ing. It happened that the phrase was substantially true. But he was at a loss to understand why a person's character should be lowered in anyone's estimation if he or she had borrowed from a domestic servant. "USUAL DOMESTIC OCCURRENCE" He would have thought it such a usual domestic occurrence for small sums to be advanced in such circumstances as the present, and with the assent of everyone concerned to be left outstanding for some days, that the mere fact of borrowing from a servant bore not the slightest tinge of " meanness." Of course there might be special circumstances, and so large an amount might be borrowed or left so long unpaid that the facts when known would reflect on the character of the master. But to make an imputation which was based on the existence of facts unknown and not to be inferred from the words attacked was surely exactly to come under the ban of Lord Esher cited in NeviUl v. Fine Art and General Insurance Company (13 Thc Times L.R., 97; [18971 A.., at p.23): " It seems to me un- reasonable that when there are a number of ood interpretations the only* bad one should be seized upon to give a defamatory sense to the document." It was not a case where there was only the choice between two reasonable meanings, one harmless and one defamatory. It was a case where there was only one reasonable meaning which was harmless, and where the defamatory meaning could only be given by inventing a state of facts which were not disclosed, and were, in fact, non-existent. He did not find much value in other cases where words were held to be incapable of being defamatory, and he only cited Clay v. Roberts 8 L.T., 397) because of its reference to social conditions 70 years ago. It was held that it could not be defamatory to say of a physician that Le met homoeopathists in consultation. " Would it be libellous," asked Chief Baron PoUock, " to write of a lady of fashion that she had been seen on the top of an omnibusI or of a nobleman that he was in the habit of buring tallow candles ? There is a differ- ence between imputing what is merely a breach of conventional etiquette and what is iUegal, mischievous, or sinful." He (Lord Atkin) thought that no importance could be attached to the words being published by a telegram. It was quite natural and proper that the defendant should ask for the maid's possessions to be sent to a named address, and natural that he should in the same communication ask that the money which in fact was due to her should be sent to the same place. The truth of this case was that the whole matter was a trumpery affair, and that the alleged libel would probably never have been heard of but for the wounded feelings caused by the improper enticement. That juries should be free to award damages for in- juries to reputation was one of the safeguards of liberty. But the protection was undermined when exhibitions of bad* manners or dis- courtesy were placed on the same level a~s attacks on character and were treated as action- able wrongs. In the present case he found himself in complete agreement with the judgment of Lord Justice Slesser. Being of opinion with him that the words complained of were incapable of a defamatory meaning, he was of opinion that the appeal should be allowed. The order of the Court of Appeal should be set aside, and the verdict and judgment at the trial on the issue of libel should be set aside and judgment entered for the defendant. The judgment for the plaintiff should be reduced to ?25. The plaintiff should have the general costs of the action except in so far as they had been in- ctieased by the issue as to libel, which costs the defendant should have with a set-off. There should be a certificate for High Court costs. The appellant should have the costs in that House and in the Court of Appeal. He moved their Lordships accordingly. The other noble and learned LoRDs concurred. Solicitors: Messrs. Bower, Cotton and Bower, for Messrs. T. W. Stuchbery and Son, Maidenhead; Mr. H. Pinder Brown. HOUSE OF LORDS COMPLAINT OF A TELEGRAM: DEFENDANT'S APPEAL ALLOWED SIM v. STRETCH