ACTION FOR LIBEL

Dominion, Volume 11, Issue 209, 23 May 1918, Page 6

ACTION FOR LIBEL

CLAIMS FOR £8,000 DAMAGES JURY AWARDS £200 SOME INTERESTING EVIDENCE ?! An action for damages for alleged libel was heard in tho Supreme Court yesterday before Mi. Justice lidwards and a common jury of twelve- Luther Hopkins, plaintiff, claimed damages of £2WO from each of four newspaper proprietors named as in all,, The jury awarded ,£2OO in all, J350 from each of the newspapers. Theso wore originally four separate aotions—Luther Hopkins v. Blundell Bros., Ltd., v. the "N.Z. Times" Co., Ltd., v. tho AA r elliugton Publishing Co., Ltd., and v.-Wilson and Horton—but the four actions were consolidated. The statement alleged to be libellous was in the following paragraph, published on November 30 in the ""Evening Post. The Dominion, tho "N.Z. Times," and the "N.Z. Herald" on December 1 :- SOLICITOR STRUCK OFF ROLL V£By Telegraph—Press Association. Christchurch, November 30. On the application of the Canterbury Law Socioty, at the Supreme Court to-day, a rule nisi was granted for the striking of Luther Hop- . kins, a solicitor, off the roll. . - • The Claim. ' The statement of claim was practically the same in all tho actions; that against The Dominion bebg as follows:— (1) That the plaintiff is a _ solictor carrying on the practice of his proiession in Christchurch and AVellington, in New Zealand. (2) That tho defendant company is a duly incorporated company, having its registered office and carrying on business >at Dominion Avenue, Plimmer's Steps, in tho City of AVellington. (3) That the defendant on or about the first day of December, 1917, falsely and maliciously printed and published the plaintiff in a newspaper called The Dominion the words -fnllmvimr. that is to say, "Solicitor Struck off. the Ml," tho defendant .meaning thereby that the plaintiff was unfit to cany on his practice as a solicitor or Uiat; he had been guilty of improper and unprofessional conduct in his practice as n solicitor, or that he had been guilty of such conduct in his practice as a solicitor as to have rendered him liable to be struck off the Roll of Solicitors, and not to be allowed to carry on such practice as a solicitor. (4) That in consequence of the promises the plaintiff has been and is greatly injured in his credit, profession, and reputation. The Defence. The statement of defence was the same for all tour actions. AVe quote that advanced on behait of The Dominion:— As to the a_Uegations in- tho statement oi chum in tne action against the AVellington Publishing Company, Ltd., defendant says:— - : (1) It has no knowledge that the plaintiff is carrying on the practice of the profession of a solicitor in Christchurch and Wellington, and for the purpose of putting the plaintiff to the proof thereof it denies each and every allegation contained in paragraph (1) of the statement of claim.

(2) It admits the allegation in paragraph 2 of tho statement of claim. (3) It admits that on Deceufber 1 it printed and published in Tiie Dominion the words set out in paragraph (3) of the statement of claim, but it says that the said words were published without malice, and it further says that the words complained of were only a heading to a telegram to the full text of which the defendant company craves leave to rofer at the trial of this action, and that reading the heading and the whole telegram together the words do not bear, nor are they capable of, the meaning alleged in paragraph (3) of the statement ot ciaim; (4) it denies the allegation contained in paragraph (4) of tho statement of claim; (5) the defendant company published the following apology:—"in a.Press Association telegram published on November 30, under the heading of 'Struck Off the Rolls,' it was stated that 'on the application of the Canterbury Law Society at the Supreme Court to-day, a rule nisi was granted for the striking of Luther Hopkins, a solicitor, off the roll.' As only a rule nisi.was granted, the heading we put to the telegram, 'Struck Oft' the Roll,' was obviously inaccurate. The mistake was made inadvertently, and as our attention has just been called to the matter, we take the 4 earliest opportunity of rectifying the 'error, and expressing our regret if any erroneous impression has been created."

Mr. A. W, Blair, with Mr. E. C. Lovvey, appeared for plaiiftiff, and Mr. M. Myers for all the defendants. Air. W. J. Westwood was selected foreman of the jury. ' Tho Case Opened. Mr. Blair explained to the jury something about the actions to be tried. He said that the actions were important to the plaintiff because his professional reputation was affected. Plaintiff was jx Bachelor of Laws, and he had commenced practice in 1905 in Christchurch, achieving some measure of,success. At the outbreak "of war, feeling that ho wished to enlist, he disposed of his interest to his partner. Owing to eyesight troubles he did not go to the war. He came to Wellington in 1917, and had since engaged in a motor-car business.* He had also been engaged in legal and financial matters commonly done by solicitors. Although he had not put up his brass plate as a solicitor, or taken out a practising license, nevertheless ho was a solicitor, and on the rolls. On November 30 he read in the "Evening Post" a telegram stating that an application had been made in Christchurch to have him struck off the Tolls. He had not received one document beafiug on this application. The telegram was repeated the following morning in The Dominion, the "New Zealand Times," and the "New Zealand Herald." That message was headed, "Solicitor Struck Off the Mis," and it stated that a rule nisi had been granted.- Mr. Blair explained that the making of a rule nisi by the Court was no more than an intimation to Mr. Hopkins that he should show cause why he should not be struck off tho.rolla! In'actual fact the application was not proceeded with, and Mr. Hopkins was not struck off the rolls. The Law Society found that it had mado a mistake, and withdrew the proceedings.

But, Mr. Blair said, the damage had been done. Plaintiff's credit had been impaired, and his reputation had suffered. He was shunned by his friends. Plaintiff Gives Evidence. Luther Hopkins, the plaintiff, gave evidence. He said that he was admitted as a solicitor in 1905, and as a barrister in the following year. He practised his profession in Christchurch until August, 1914, when ho dissolved partnership with Mr. Twyiieham, and after that he stayed in Christchurch looking after his own affairs, and also after some of his father's affairs. He occupied tho same office until 191G, and the style of the firm was not altered. During that time he .used often to do small items of business for the firm. His object in dissolving partnership was that he wished to enlist if he could get his affairs in ordor. This proved a longer job than he had thought. Ue enlisted in Februiary, 191G, in Christchurch, but the doctor would not pass his eyes, and told him to come up again in a year. Ho left Christchurch in September, 191G, to go to Sydney oh business, nnd on his return ho visitod Christchurch and Auckland, and came to live in Wellington in February, 1917. Mr. Blair: What was your object in coming to Wellington? Witness: I could not practise actively in Christchurch.

Mr. Blair: That was part of your arrangement'with Mr. Twynehiim? Witness: Yes. And I had to earn a living, and I decided to practise here until I was drawn in the ballot under the Military Service Act. Mr. Blair: Did you actually put out your brass plate? . Witness: No. I was very busy for about three months on business that had taken me to Sydney. Mr. Blair; Wa6 it iegol business?

Witness: Yes, it was tlio upshot of legal business and was partly legal. Mr. Myers: What was it? Witness: I was acting as solicitor for the Golden Point Scheelite Company, which had just been floated. Mr. Myers: He was speculating. Mr. Blair: You were about three months in 'connection with that? Witness: Yes, anil in the later months of that period 1 met up with a certain party' and was tempted to go into an importing business. Mr. Blair: You did start in with them? .AVitncss: Yes. Mr. Blair: It is a motor importing business ?—"Yes, largely." AA'hat is the name of it?—" The Australasian Import Company." Plaintiff's Professional Work. At this time were you doing any legal wcrk at all?—" Only in connection with property affairs of my own in Christchurch that had to be attended to. I did several bits of work for Mr. Twyneham as his agent, and there were from eight to a dozen or more friends who got mo to do work for them." Just a few isolated jobs for friendsP— "Yes." That was your business up till November 30'-"Yes." Witness went on to say that on November 30, as ho was leaving the office, the typist drew his attention to the paragraph in the "Evening Post." Up till that time ho had never- heard <)f any such proceeding. He had no inkling of it. The Law .Society had never served anything on him or communicated with him. He had no idea to what the paragraph referred, and ho wrote that night to Christchurch to find out. tin the following morning identical paragraphs appeared in Tiik Dominion, tho' "New Zealand Times," and in Auckland in die- "New Zealand Herald." Ho wrote to Christchurch giving a full account of his dealings with the man who had made charged! to the Law Sociiity against him, and he took steps immediately to have tho matter corrected. He spoke to his solicitor about libel actions, but did not go definitely into the. matter until January, 1918. Writs were issued on March i. Witness said that the effect of the publication of the paragraph had been to cripple his business and to destroy his credit.

Under Cross-Examination. Mr. Myers: "Will yon-mind tolling me whether your desire is to clear your character and reputation or to get damages? ■ ' Witness: I'want to clear my character and' reputation as much as possible, and also to retrieve my credit. Mi'. Myers: In other words, you want \o get daiuagwf—"Well, yes." '" \\ hen you saw this paragraph on November 30 your concern ( was at once for your reputation? Would that too correct?—"i r cs." You' were in AVellington during December of last year, and in January, February, and March of this yoar living in Wellington ?—"Yes." Supposing you .are acting as a. solicitor and a man comes to you who lias been ilibelled, I suppose your first cave would Be—as it would be your duty—to save the /reputation of your client?— "Yes." And if you wished to be successful in that the first thing you would do would be to communicate with the so that a retraction could be at once inserted?—" Yes, Mr. Myers, if that ciient came to me with all the information enabling me to point out that the whole 'thing was a mistake." Now, Mr. Hopkins, you received within 24 or 48 hours letters from Christchurcihi "which would show you what the position was?—"l received two letters telling ine who the party ,'was who brought the action, and tolling me they would forward details in a day or two." But you knew you had not been struck off the rolls? You could not have been? —"Yes, seeing that I had more than a lay knowledge of what the paragraph meant, I did." Other Action Could Have Been Taken, If necessary, you could have telegraphed to (jiinstcliurch and got imorinatioir by telegram?—" Well, .anyone 11 telegraphed to would have to" go to the Court, aud lie could not have gono there." He could have gono the next day?— "lies." You have admitted to me that you could not have been struck off the roll, and therefore that you knew the telegram was a mistake r—"Yes." You saw that it was a Press Association telegram, that in the ordinary course it would appear in other newspapers• tho following morning?—" That idea never crossed my mind. What 1 was concerned most auout at the time was the statoment made in tho telegram. I was absolutely bewildered."

You did not go to the morning papers and see that the statement was not repeated?—"No; how could I? I didu't Know what had happened." You did not go to the Press Association ?—"No." You made no request then or since to have u communication sent round New Zealand to put you right?—" No." You did not communicate with any of these different newspapers asking for an explanation oh' apology" ?—"No, by the time I knew what the matter was, it was too late for an apology." You did not write to these newspapers before you commenced your action?— "No. They did not write to me before they put that in the paper." Don't you blow as a solicitor that it has been said by the Court over and over again that a letter ought to be sont to a newspaper before action for libel, in order that the matter may be as far as possible put Tight?—"No, I don't know that." It never occurred to you 'to do that? —"No, it did not." "A Spicy Bit." Of course, you don't suggest it is any more than a bona-fide mistake? You don't suggest the papers have anything against you?—" Not against me. I suppose they thought it was a spicy bit to put in about b solicitor, "and to please the public throughout New Zealand." Eight throughout New Zealand! But you are not known throughout New Zealand ?-"No." '

"Practising as a Solicitor."

I ask you to say now whether or not during 11)17 you were practising as a solicitor in Wellington?—"Do you call doing sundry work practising?" Mr. Myers: Would you mind answering my question? Yon are a solicitor unci you know what practising as a soli-* citor means. Wero you practising in 1<!17?—"It is hard for me to answer;' Mr. Mvers: I want you to answer. Witness: I made money as a solicitor. Mr-. Myers: Did you? Would you say yon were practising?—" Not openly." 'Were you practising?—"l was availnble to those of my friends who came to Did you have a practising certificate?— "No." Did you charge for your services ?- "Yes. I got certain very good lees.' Did you keep anv books as a solicitor? -"No, I handled no trust moneys." How many people did you do work for? -"Perhaps' from nine to twelve." Thev were mere friends of your own?— "Yes."

Then vou were not practising as a solicitor in the ordinary way?—'' No. Yon had no practising certificate. 1 think you had no practising certificate in 1916. When did you take out a practising certificate this year?—" May 13." Was not that certificate taken out for the express purpose of this action?—" Not expressly. No; I certainly thought —— You thought it would help you?— "Yes."

So that you did not take out a certificate for 1916, or 1917, and you didn t apply for a certificate for this year until the end of March, when you thought it would help you in this action ?—"Yes, I thought I might need one." You thought you might need one! Why?—"l thought you might question niv right." You did not apply for a practising certificate until alter you issued the writ?— "No." ' ■ You say you were doing professional business in 1917. I ask you again if that is true?—" Yes, it is true." i .Mr. Myers reminded witness of the affidavit ho had made in connection with tho Law Society's proceedings in Christchurch. In that affidavit witness did not mention tho fact that ho was carrying on business as a solicitor. "Can you say," said counsel, "why you did not tell tho Law Society and the Court that you

1 had been practising as a. solicitor if what you say now is truo?—"Because I had not practised openly." What do you moan by openly?—"lwas not soliciting any busiaess from clients." I suppose you know that by doing business and charging for it as solicitor you. wero committing contempt of court?—"l know it now. I did not know it before." Do you mean to say you did not know in 1917 when you wero doing work in this way?—"l always understood it was only necessary to have a certificate to sue for costs." Do you know that practising without a certificate involves penalties?—"l do know* now." Why So Long Delay? Why did you wait so long before bringing this action?—"l'irstly, because the holidays intervening prevented me from proving that tho matter was a mistake." Why didn't you bring the action against the newspapers.-—"Because I wanted to clear my Character With the Law Society, and they took a considerable time to look into the matter before coming to the conclusion that things were exactly as I had said they were."" .'i'ou did not want to start this action until you knew you were clear from tllu Law Society?—"Oh, no; 1 knew I w-Duld bo clear."

It' you knew that why, didii't you bring your notions against newspapers, because that would liave been the best tiling to do' With a view of clearing your character ? Why didn't you do it?—"l hiive already .tuutrtrcd that, J \t anted, to have this matter fared up in Christcliurch.. I never anticipated for a moment it would drag on so long." So that in tho meantime you were deliberately allowing your reputation to bis under a cloud which you could have cleared away?—"l don't 'say that. To :my mind, tho damage had been done the moment the articles came out, and in." amount of explanation such as was afterwards put in would reach the people that tho first announceent reached." Don't you think an apology on the following day would have lielped to clear your reputation ?—"Yes, but on the other hand, if I had gone to the newspapers with nothing in my hands to show them, would they have apologised?"

At anyrate, you did not give them an opportunity, did you?—" No." Witness said that for his share of tho partnership business in Christchurch he received .jCiOO. Mr. Myers suggested that as witness had always practised in Christchurch, and was best known there, he might properly ) have brought Hie action there. "Was it," he said, "because there is an action pending against ,you in Christchurch for fraud that you did not bring an action thero? Witness: No. , Mr. Myers; Thero is an Tclion pending against yon for fraud, and your father, and one or two others?—" Yes." Is that why you did not bring tho action in Christchurch ?—"No, the reason was because I am here, and I expected to bo practising here or in business hero, and I wanted the most publicity given to the matter here." Do you not know that it is the practice of any decent paper, if it has done an injury to a man, to put that injury right at tV. earliest possible moment?— "1 am not a judge ot that at all." If you had done v man an injury you would welcome an opportunity of' put-' ting the injury right as far as possiblo? —"Yes." , That Other' Action. To Mr. Blair: Witness referred to the action pending for fraud against him and others iu Christchurch. It was an action commenced sixteen months ago, arising out of transactions that occurred in 1912. It was a claim by two members of a land purchase syndicate against three other members of tho syndicate. The purchase had not ftirncd out as profitably as 'expected. If there was a loss he (witness) would lose in proportion to the number vi his shares, and ho was almost as big a shareholder as tho persons bri'iging the action. Practising in Wellington as he had been he had collected in fees ,£350.

Mr. Myers: That is from eight or ten private friends! Witness said that his biggest fee was for the Golden. Point Scheelito Company. Mr. Myers: That is h'.s own affair? AVitness said the fee ho received was .£220. Mr. Myers: Ask him what liis interest in the company is. Witness said 'ho had received J2120 from another 7nan, and also he had done several smaller matters. In Christchnrch he had received out of the business for each of the Inst two years that he practised there about ,£7OO. Before tho partnership lie had made larger amounts, as mffch as ,£IOOO net in a year. About tho Fees. Mr. Myers asked about the item of ■£120 paid by a man in Wellington, Ha suggested that it was an agency commission. Witness said that it involved a good deal of,legal work. It was mostly for advieo. He had received payment in two lumps of cash. Witness was one of the vendors of the Scheelito Company, and was himself one of the biggest shareholders.

Professional Reputation. Thomas William ISckofield, manager in Wellington for E. G. Dun and Co., said that it was one of the branches of his firm's Business to give confidential reports on a man's financial status. Ho had known plaintiff slightly for six or seven years. When he saw the telegram in the papers ho at once thought that some serious charge had been made against Mr. Hopkins, and that action had been commenced—not then concluded—to have him struck off the rolls. This closed the case for the plaintiff. Case for the Defence. Mr. Myeis said that most of the evidence he had wished to call had beenobtained from plaintiff himself in crossexamination. He (counsel) would call onlj-ja representative of one of tho newspapers to 6how how this perfectly innocent mistake occurred for which Mr. Hopkins eiaimed ,£BOOO. It would be apparent from this evidence—and, indeed, tho fact was well known to Mr. Hopkins as to other people—that every decent newspaper was only too anxious to correct a mistake once made.

How the News Came. Joseph" Parker, editor of the "Evening Post," said that tiio news. message containing the alleged libol had como through tho Press Association, arriving in his office about 2 o'clock. The first message to come was a bare announcement that Luther Hopkiiis had been struck off the rolls. Half an hour later came the correction to say that only a rule nisi had been granted. The correction was made in tho body of tho telegram, but not in the heading. He (witness) had not'bofote even heard of. Mr.' Hopkins. The morning papers, in the ordinary course of daily routine,-, copied the messago from the evening paper. On February 28 he beard that there had been an error in this-messago, and lie had had inserted in the newspaper a correcting paragraph. It was the invariable rule to make a collection if a mistake occurred. In his experience of twenty-five years this was the first time that a newspaper had not boon given an opportunity of aorrecting an unwitting mistake.

A Clerk's Mistake, His Honour here'made some remark on the term "rule nisi." He said that the motion before the Court was really not a motion for n rule nisi at all, but a motion calling upon Mr. Hopkins lo show cause. The document had been wrongly endorsed by some "young gentleman in a lawyer's office," and it had misled some unsuspecting newspaper men. Witness, continuing his' evidence, said that the accuracy of (he message as sent by the Press Association had been accepted. When tho proceedings against Hopkins were withdrawn, the "Post" gave as much prominence to these proceedings as possible. Big Damages. Mr. Myers said that the case "was probably remarkable in one respect—Hint it was a claim for a larger amount than had over previously been claimed. His Honour: Excuse me, Mr. Myers. Long ago a gentleman named Robinson brought an action against the "Evening Post" for .£50,000! Mr. Myors: Does Your Honour remember whether he recovered anything? His Honour said that tho action did not come to trial. Mr. Myers said that the purpose of

the libel lair was lo ennble a man who had been defamed to clear his character, and not to make suits for damages for libel a money-making game. It would be absurd to suggest that there was any inalico in the publication of this paragraph. It had been published cjuilo innocently without thought of malice, and yet; Mr. Hopkins' was claiming .£8000! It was proper that" the person libelling another by a mistake should bo given nn opportunity of making an apology. Also it was the duty of the person injured to minimise and not to aggravate the damage. Any claimant disregarding any of these conditions put himself in the position of an extortioner.

No Evidence of Malice. In spite of what Mr. Hopkins had said it was clear that ho had not been practising his proiession since IDU, and nail therefore'not suffered professionally. He had admitted having earned ibiO in fees, but of these he hail collected XiiO iroiu a company with which ho was connected as a vendor, and concerning an item of £ia> Mr. Hopkins had noi made a, satisfactory answer to tne suggestion that it was a paymont by way of commission. There was no suggestion at all that any man connected with any of the four newspapers had any animus against Mr. Hopkins. And vet Mr. Hopkins was da.iiung as large a sum as he could have claimed had tne statement been instrted with tho utmost venom and malice, l'iaintili had never asked for retraotion of the statement, although he had all the facts before tluy were known' to the papers, lie hud refrained from doing anything for three months, with the deliberate purpose, counsel suggested, of later inliatmg tho damages. Then he had launched a batch of actions, claiming in four actions =£2000 in each. Such claims, he urged, wero excessive. The maximum that could 1» claimed under the Workers' Compensation Act was ,£SOO. Mr. Hopkins was practically unknown as a lawyer, and he was not practising his profession. It' he had overtaken tho mistake at once, as ho could have done, bo would have suffered little or no damage. But ho preferred to do nothing, and claimed these colossal damages. As soon as tho newspapers did discover that a mistake had been mado they did all in their power to put the matter right., Counsel submitted that as Mr Hopkins was not practising, and had not been practising, he had suffered no real damage. If he had a right to claim such extravagant sums as lie had claimed it would bo much more lucrative to be libelled now and then than to carry on practise as a lawyer. 'When Mr. HopKins sold out lus partnersmp as a lawyer in (Jiirislehurcii in I'M nu sold it for i-MO. tNow he was asking tor dtSOOO, which would, at 5 per cent., give him an income of £100 a year for life. 'Hint was the little nest-egg that ilr. Hopkins wanted to get. It would be the duty of the jury, if they found that Sir. Hopkins had been defamed, to award such tempeuto damages as could be given, having regard to tli; conduct ot tne newspapers and to plaintiff's own conduct. He urged that it was a case for small damages. . Mr. Blair addressed the jury on the question of damages. He repudiated tho suggestion that it was the duty of a person defamed to persuade a newspaper to correct the error. He suggested that the damages should bo substantial. He did not consider that the Wellington papers had made such ample apology as should have been given to Mr. Hopkins. i His Honour said that plainly an incorrect statement had beai published, which was not privileged, and it would be the duty of the jury to award such damages as, in their opinion, would bo a reasonable recompense for the amount of damage done. He discussed tho considerations which 1 might weigh in the assessment of damages. The jury announced their finding after a retirement of twenty-live minutes. ..

The award was of 43300, to be apportioned among tho four papers tit 150 each.. , ' ._ Judgment was entered for _ plaintiff accordingly, with 'costs as against Each defendant on the lowest scale up to the stage of the issue of the four writs, and for the rest as for one action for £M, such remainder costs to he borne in equal shares by the several defendants.