SETTLED OUT OF COURT

Evening Post, Volume CX, Issue 140, 11 December 1930, Page 10

SETTLED OUT OF COURT

"REASONABLENESS OF PARTIES"

When the Court sat this morning Mr. O'Loary said that a settlement had been ?,ffived at, subject, to the Court's con&mt, in respect of the case that was part heard yesterday, and tho three other actions that had been filed. A formal judgment was not asked for, but it was desired that a note should be taken of the settlement for record purposes. On the action commenced yesterday in which Mr. Jorgensen claimed for the recovery of £819 5s professional fees and Mr. Dwan counter-claimed for £ 500, Mr. Dwan would pay Jorgensen £200 and would give him a discharge for tho £500 admittedly due on tho counterclaim. The parties had not been able to agreo as to the amount of damages that should bo awarded in respect of the second action—a claim by Jorgensen against Dwan for £4000 damages for alleged libel. It had been agreed, subject to the Court's concurrence, to ask his Honour to assess the damages. In addition, on behalf of Mr. Dwan, he wished to withdraw in Court tho allegations made in tho letters, the subject matter, of the action. So far as the remaining two actions were concerned, it had been agreed to rcinstato Jorgensen to date in respect of his house property, except that Mr. and Mrs. Dwan took no liability in connection with the first mortgage, interest, rates, etc., and it had also been agreed that tho Dwans would wipe out the interest to date, approximately £72, owing on the second mortgage. Lastly, Mr. Dwan would pay £150 as costs, covering all tho actions.

Mr. O'Leary said lie wished to say that Mr. Dwan now felt that ho had defended the action and adopted the course he had really under a misapprehension. So far as the letters were con-

cerned, the allegations were made in the heat oi" the imoment and ho wished that they should be withdrawn. JUDGE'S* CONGRATULATIONS. "I have 'to congratulate you," said Mr. Justice Ostler, "not only on the reasonableness of the parties themselves but on the reasonableness of counsel, wfa/o have been able to arrive at a settlement in this matter, in which | there was a good deal of feeling and in which thjere wero a great many complicated faots. I shall be quite willing to assess tb.e damages." Counsel then addressed his Honour on the question of the damages that should be awardeil in connection with the action for alleged libel. A, BAD LETTER. Mr. P. 8,. Fitzherbert said that one of the lettars that had been written by Mr. Dwan was a very bad one. It was about as bad as it could be, and it was an expression of intention by a, man who hiad a very great deal of power to carry out that intention. Counsel submitted, that Mr. Dwan had even more power 'than the average rich man, because he had interests all over the district in which Mr. Jorgonscn practised. His Honour: "I have not got to consider that, surely. I have got to consider what djamage Mr. Jorgensen suffered. The p; ower, if he had the power, has not been- exercised." Mr. Fitzharbert said he freely admitted that the result of the settlement had had a considerable influence on the matter of damages. Had the actions been fought out to the end, there would have been animosity between the parties, prottfibly, whereas now, he trusted, Mr. Dwan would do all in his powor to reinstate Mr. Jorgensen in. the minds of the people he might in the meantime have influenced. Ai the same time a letter of that kind, it was submitted, must not be allowed, to pass without reasonable damages.', It was realised, of course, that a.; large sum— hy that it was meant a .sum running into thousands—could n«it be expected, because a great deal ol the damage had been undone by the settlement. Nevertheless, counsel said he thought that the damages should, reasonably compensate the plaintiff for the mental worry and anxiety that he> had suffered in consequence of the la tter. One was entitled to take into accomnt the mental torment Mr. Jorgensen had suffered as a result of knowing that a man with great power had the ability-to carry out that power and injune him. The settlement also was to all intents and purposes an indication of tlie justification of the plaintiff's action. limited' publication. Mr. O'Leary contended that the circumstances giving rise to the cause of action were exceptional. Ho did not know of any case having previously been brought into Court where the publication of the alleged libel had been n-fc to someone outside the defendant's office, but to his . typist in the ordinary course of business. There was no question that had Ma-. Dwan sat down at his desk and written to Mr. Jorgensen what he chose to dictate to his typist, Mr. Jorgensen vrould have had no cause of action .against him. In the circumstances, it "was admitted that tho publication was ;of tho most limited kind. " ■ His Honour aj;recd that tho only publication was to the typist. With regard to the threats in the letter, they were not part of tfte libel, and the plaintiif was not entitled to damages in respect of them. 3le was only entitled to damages suffered to his business by reason of the publication of the slander. So far as that was concerned Mr. Jorgensen could not haws suffered very much. At the same time .it was not necessary for him to prove any damage.' If a person was slandered in the way of his business lie was entitled to damages. The letter1 was ono which he was sure Mr. Dwan in his calm, moments would not have written- at all. Obviously he had been heated at th«i time, and ho would have to pay some sum. He was prepared to assess tiie damages at £50.