Lord Coleridge, C. J.[[467]] I am of opinion that this rule must be discharged.
This was an action against the proprietor of a newspaper for publishing a bona fide and fair report of proceedings before a magistrate. Three persons, surveyors, who had been employed by a civil engineer to assist in the construction of a railway in Ireland, hearing that their employer had been paid, and conceiving that the money due to them had been improperly withheld by him, went before a police magistrate in London, and (I must take it for the purpose of my judgment, and do so take it) applied to him for a summons or order under the Masters and Workman’s Act. In the result, the magistrate thought that the facts stated by the complainants showed no ground for a summons against the plaintiff under the Act; and therefore in the result it turned out that, in a certain sense, an application had been made to the magistrate with regard to a matter as to which he had no jurisdiction. I say in a certain sense: but it has been long held, and I think most properly held, that it is not the result but the nature of the application made to the magistrate which founds his jurisdiction: and that, wherever an application is made to a magistrate as to a matter over which, supposing the facts to bear out the statement, he has jurisdiction, he then has jurisdiction to ascertain whether the facts make out a case for the exercise of that jurisdiction which, if the facts make out the case, undoubtedly he has.
It has been laid down again and again in broad terms that the publication of the proceedings in courts of justice is privileged if the report of such proceedings be fair and honest; and this is so found to be. An attempt however has been made (and Mr. Shortt will allow me to say that, if it were possible to have succeeded, I think his argument would have succeeded, because he has said everything that could be said, and has said it well) to distinguish this case and take it out of the general proposition, by bringing it within an undoubted qualification which has been grafted upon that general proposition, viz., that the application to the magistrate here was what may be called an ex parte or a preliminary proceeding. Now, there is no doubt that, in many cases to which Mr. Shortt has referred, the term “ex parte proceeding” has been over and over again used by judges of great eminence, sometimes affirmatively to say that an ex parte proceeding is not privileged, and sometimes negatively to say, this, being a proceeding not ex parte, is privileged; and I do not doubt for my own part that, if this argument had been addressed to a court some sixty or seventy years ago, it might have met with a different result from that which it is about to meet with to-day. Speaking frankly,—and it is useless, if a case has made a certain impression upon your mind after you have done the best you can to understand it, to say it has not made that impression,—it seems to me quite plain that in such cases as Rex v. Fleet, 1 B. & A. 379, judgments of great judges do lay down the rule that an ex parte or preliminary proceeding is not privileged on the ground, good or bad, that it is very hard upon an individual to have a matter stated against him behind his back which he has no means of answering; and that oftentimes an accused person will come to trial, if he be tried, with a heavy weight of prejudice; where the case against him has been reported in the public newspapers, and his own answer, if he has one, from the necessities of the case has not been similarly made known. No doubt there are very strong observations in those cases adopted in Duncan v. Thwaites, 3 B. & C. 556, which go very far to maintain that proposition. There is also a dictum of one of the greatest authorities in our law, Lord Eldon, than whom few greater lawyers have ever sat in Westminster Hall, who is reported, by Mr. Starkie, Starkie on Libel, 4th ed., p. 191 (9), to have once observed that he recollected the time when it would have been matter of surprise to every lawyer in Westminster Hall to learn that the publication of ex parte proceedings was legal.
But we are not now living, so to say, within the shadow of those cases: and it is idle to deny that there are cases since that time, in which the decisions I have just now referred to have been brought to the attention of the learned judges, where the courts have been pressed with the authority of those decisions, and have come to conclusions which it is not for me to say are inconsistent, but which I am perfectly unable to reconcile with those earlier cases; and I find what I think is excellent good sense in the judgment of the Court of Queen’s Bench in the case of Wason v. Walter, which explains how that is. It is a passage which one of the learned counsel read to us, and it is a passage which upon the whole I should desire to adopt and adhere to: “Whatever disadvantages attach to a system of unwritten law,—and of this we are fully sensible,—it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society and to the requirements and habits of the age in which we live, so as to avoid the inconveniences and injustice which arise where the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied. Our law of libel has in many respects only gradually developed itself into anything like satisfactory and settled form. The full liberty of public writers to comment on the conduct and motives of public men has only in very recent times been recognized.” And then the passage goes on,—“Even in quite recent days judges, in holding the publication of the proceedings of courts of justice lawful, have thought it necessary to distinguish what we call ex parte proceedings as a probable exception from the operation of the rule. Yet ex parte proceedings before magistrates, and even before this court, as, for instance, on applications for criminal informations, are published every day; but such a thing as an action or indictment founded on a report of such an ex parte proceeding is unheard of; and, if any such action or indictment should be brought, it would probably be held that the true criterion of the privilege is not whether the report was or was not ex parte, but whether it was a fair and honest report of what had taken place, published simply with a view to the honest publication, and innocent of all intention to do injury to the reputation of the party affected.” Now, to the general line of argument in that passage, and to the accuracy of the statement in the last sentence I have read, I entirely adhere; and it is familiar that not only are unimportant cases and ex parte proceedings published, but a particular class of inquiries which in some of the earlier cases I find actually by name excluded from the privilege,—I mean inquiries before a coroner,—are in cases which may be supposed to interest the public reported in all the newspapers in the kingdom; and yet no one ever heard, at least since I have known Westminster Hall, of an action being brought by a person injuriously affected by such publication, where the report is honest and bona fide, and published without intention to injure. That, therefore, seems to introduce this element into the determination of these cases, that there is a certain elasticity in the rules which apply to questions of privilege (development is perhaps the more correct expression), and that the courts have from time to time applied as best they may what they think is the good sense of the rules which exist to cases which have not been positively decided to come within them. If there had been a case directly in point in which a proceeding such as this, where the matter was at an end, and where the publication had been found by the jury to have been bona fide, honest, and fair, had been held by a court of co-ordinate jurisdiction not to be privileged, I do not hesitate to say for my own part that I should have gladly acted upon it, because I do not disguise that my own judgment is not at all satisfied with the enormous advantage to the public of having every small personal matter reported day by day, often to the extreme pain and injury of individuals, which is supposed to form its justification. Nevertheless, I feel it to be the duty of a judge not to declare what he considers the law ought to be, but to decide according to what to the best of his judgment he finds it is: and, if he finds a principle laid down upon competent authority, it is far better to accept and apply it broadly and honestly, even if he is not in his own mind satisfied with the foundation of the rule, than to attempt to fritter it away in its application to cases which manifestly come within it.
I come therefore to the consideration of this case feeling that the general tendency of the law has been to hold such a publication as this to be within the protection of the privilege. Now, I do find one case which to the best of my judgment appears to cover this case, and from which I am unable, according to the principle laid down in it, to distinguish the case now before us. It is a case to which much reference has been made, and which Mr. Shortt has dealt with at considerable length, viz., Lewis v. Levy; and it has no doubt a most important bearing upon this question. I do not propose to read the elaborate judgment delivered by Lord Campbell in that case: it is well summed up in these words: “The rule, that the publication of a fair and correct report of proceedings taking place in a public court of justice is privileged, extends to proceedings taking place publicly before a magistrate on the preliminary investigation of a criminal charge terminating in the discharge by the magistrate of the party charged.” I am perfectly aware that there may be subtle distinctions,—distinctions which I will not say are merely shadowy, but which are subtle,—between the facts of that case and those of the case now before us: but I cannot disguise from myself that the ratio decidendi and the argument by which the court was there led to hold such proceedings to be privileged, do in effect cover this case. I am of opinion that this is a case in which there was a judicial proceeding terminating, not in the discharge of the party accused, because there was no such person before the magistrate, but terminating in a refusal to proceed with the charge and to set the criminal process in motion. I am unable to distinguish the principle of Lewis v. Levy from that involved in the present case; and I adopt what is said there of the old,—and I may say great case, because it was decided by judges of high authority,—of Curry v. Walter, so far back as the year 1796. That case is adopted by the Court of Queen’s Bench in a written judgment in the year 1858, as a ground of their decision; and, whatever may have been said about it in some of the intermediate cases, and the doubts that have been thrown upon it by some eminent judges, it must I think be considered to be completely rehabilitated by the judgment of the Court of Queen’s Bench in Lewis v. Levy, E. B. & E. 537. I am content, therefore, to rest my judgment in this case upon the principles laid down in Curry v. Walter, 1 B. & P. 525, and deliberately reaffirmed in Lewis v. Levy, E. B. & E., at p. 559, and to say that, upon the principles there laid down, I am of opinion that this rule must be discharged.
Rule discharged.[[468]]
WASON v. WALKER
In the Queen’s Bench, November 25, 1868.
Reported in Law Reports, 4 Queen’s Bench, 73.
The judgment of the court was delivered by
Cockburn, C. J.[[469]] This case was argued a few days since before my Brothers Lush, Hannen, and Hayes, and myself, and we took time, not to consider what our judgment should be, for as to that our minds were made up at the close of the argument, but because, owing to the importance and novelty of the point involved, we thought it desirable that our judgment should be reduced to writing before it was delivered.
The main question for our decision is, whether a faithful report in a public newspaper of a debate in either house of parliament, containing matter disparaging to the character of an individual, as having been spoken in the course of the debate, is actionable at the suit of the party whose character has thus been called in question. We are of opinion that it is not.