Case Analysis Test Bonnard V Perryman

This is a neutral citation of the case that can be found in volume 2 of the Chancery Law Reports for 1891, at the beginning of page 269.

What is the significance of the dates 27 February and 3 March 1891?

On 27th February, the motion was heard before Mr Justice North (date of hearing) in the High Court.

The 3rd March, was the date that the opinion of the judge was delivered.

Question 2

Name counsel for Mr Bonnard.

The counsel for the plaintiff was Napier Higgins, Q.C., and Dunham.

Name counsel for Mr Perryman.

The counsel for the defendant was Cozens-Hardy, Q.C., and W. E. Vernon.

Question 3

At first instance, Mr Perryman was one of a number of defendants. Why were the

others not party to this case in the Court of Appeal?

Mr Justice North granted the interlocutory injunction against Perryman only. According to Justice North, he did not believe it was necessary to consider the case against Allen, since granting an injunction against Perryman effectively achieved the Plaintiff’s objectives, explicitly in preventing the publication of the allegedly libellous article until trial. Hence, the other defendants had no reason to make an appeal.

What was the effect of the original order made by North J?

The original order restricted Perryman “his servants and agents, until trial or further order, from selling, circulating, or delivering or communicating to any person or persons, or permitting to be sold or circulated, or delivered or communicated, to any person or persons, any copy of the Financial Observer and Mining Herald of the 7th of February, 1891, containing an article headed “Fletcher Mills, Providence, Rhode Island".

Justice North also ordered Perryman and agents to refrain from printing or publishing or selling any copy of the said article, or any extract thereof, or material portion thereof, so far as such extract or portion affects the Plaintiffs, or either of them.

Question 4

According to Lord Coleridge, how many questions need the Court of Appeal answer?

What are they?

There are two questions that need to be answered:

1) Does the Supreme Court have jurisdiction to issue an injunction to control the publication of an alleged libel, either at all, or before the libel has been deemed to be such?

2) Secondly, if such jurisdiction does exist, is this a case in which the court should exercise its remit?

Question 5

According to Lord Coleridge, what was it unnecessary for the Court of Appeal to decide

and why?

It was unnecessary to consider whether the Court of Appeal, sitting with its full number, can, “according to the course and practice of the Court, overrule a Court consisting of three or any other number of members, if the decision which they are asked to review appears to be clearly wrong."

This was considered irrelevant because the prior decisions of the Court on the main question “appear to us to be perfectly correct". Therefore, the decision was evidently not wrong. Consequently there was no need to consider this issue.

Question 6

a) Explain how, according to Lord Coleridge, the right to free speech may be

respected by the courts when issuing injunctions in cases such as this.

Coleridge refers to the need for “exceptional caution" before granting an injunction to prevent a wrongful impediment of free speech. He adopts the language used by Lord Esher, M.R., in Coulson v Coulson:

“To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable."

In essence, the Court must consider, at the interim stage, whether the action in question amounts to libel. An injunction should only be granted where the action is clearly libellous and will likely be deemed so at trial.

b) Which two statutes combine to give the higher courts the power to issue

injunctions restraining the publication of a libel?

The two statues are-

The Common Law Procedure Act, 1854

Judicature Act, 1873.

c) According to Lord Coleridge, what must be the outcome of the appeal and why?

Coleridge allowed the appeal. He argues that the Court should not directly interfere in a libel case until the trial stage when the Defendant’s defence of justification can be fully considered. Coleridge believes this publication is clearly libellous. However, he feels it should be up to a jury alone to decide whether the Defendant’s defence of justification is a valid one. Furthermore, an interim decision may “turn upon the question of the general character of the Plaintiffs." Coleridge regards this as a question which can rarely be answered satisfactorily before trial. Perception and conjecture are no substitute for the investigation and evidence provided at trial. In Coleridge’s view, this case is not sufficiently exceptional to justify the interference of the Court before then. The likely damage caused to the Defendant in the event of a wrongly granted injunction would amount to more than “nominal damages". Therefore, the decision should be reserved for trial.

Question 7

In the first instance judgment:

(a) What authorities does North J cite to support his conclusion that the High Court has jurisdiction to issue the injunction sought by the plaintiff?

North regards Quartz Hill Consolidated Gold Mining Company v. Beall as sufficient authority to establish the Court’s jurisdiction to issue the injunction.

Within his citation of Jessel’s original judgement in Quartz Hill, the cases of Beddow v. Beddow, Shaw v. Earl of Jersey and Day v. Brownrigg are quoted by Jessel as confirmation of the Court’s jurisdiction.

(b) How many objections does North J locate, according to the Quartz Hill Consolidated Gold Mining Company case, to the exercise of the jurisdiction to issue the injunction? What are they?

North J locates three objections;

1) The first is whether an interlocutory injunction is truly required, in particular whether there is an intention to continue the publication of the material in question.

2) There is a general rule requiring a plaintiff applying for an interlocutory injunction to show that the statement is untrue.

3) Finally, North points out “the difficulty of granting an interlocutory injunction where the alleged libel was apparently on its face a privileged communication, and the difficulty there was of going into any question of express malice on an interlocutory application."

(c) How does North J deal with those objections in this case?

North concludes that on certain material points the article is untrue. He regards “the religion of the Plaintiffs, and the Jews' den…. the acquisition of the furniture…. [and] Marks" as untrue statements. He regards an injunction as necessary because of the Defendant’s refusal to provide an undertaking that he would not re-publish the article. Finally, North states that the issue of privileged communications does not arise in this case. He does not think that this newspaper article is a privileged communication in any sense, and he thinks it is unnecessary to investigate whether the article demonstrates express malice.

(d) How does North J believe a jury would deal with this case if it were to go to trial?

According to North J, he believes that no jury in England would be favourable towards the defendant in this case. If there was a possibility that the jury did so, than he believes that a new trial would be directed. Nonetheless, he does highlight that this is purely based on the material that is presently before him. He argues, that if additional evidence was presented at a trial, then a jury may decide that the Defendant has “made out a justification."

Question 8

When deciding on the terms of the original order, what was North J prepared to include, and what was he not prepared to include? Give reasons for your answer?

North was prepared to restrain Perryman, his servants and agents, until trial or further order, from “selling, circulating, or delivering or communicating to any person or persons, or permitting to be sold or circulated, or delivered or communicated, to any person or persons, any copy of the Financial Observer and Mining Herald of the 7th of February, 1891, containing an article headed “ Fletcher Mills, Providence, Rhode Island". He also ordered Perryman to refrain from “printing or publishing or selling any copy of the said article, or any extract thereof, or material portion thereof, so far as such extract or portion affects the Plaintiffs, or either of them."

However, North was not prepared to restrain all future libels. He did not regard this as “necessary or proper". He could not see how to frame an order that could actually prevent any improper libels without also preventing legitimate and proper actions.

In addition, he did not consider it appropriate to grant an injunction against Allen. (costs in action*)

Question 9

a) Summarise, in your own words, the argument made by the appellants to the

Court of Appeal in this case.

The Appellant argued that the Court cannot grant an interlocutory injunction in a libel action if he demonstrates that he can justify it at trial. Here, the Court has no jurisdiction. The Appellant argues that he will be able to prove that the statements were true. Moreover, he argues that he has the right to have the question of justification tried before a jury; it is not for the Court to determine pre-trial.

b) Summarise, in your own words, the argument made by the respondent to the Court of Appeal in this case.

An interlocutory injunction is both justifiable and necessary. The libel is appalling and evidently untrue. No real injury will be done to the respondent if the injunction is granted, whereas great injury will be done to the Plaintiffs if refused. On the balance of convenience and inconvenience it would be “just and convenient" to grant an injunction. A libel action can be tried without a jury. The libel is a clear abuse of the freedom of the press, while one of the Appellant’s affidavits is inadmissible.

Question 10

Explain how and why Kay LJ’s reasoning differs from that of the majority in the Court of

Appeal.

Kay agrees with the majority in the Court of Appeal that the Court has jurisdiction to grant pre-trial injunctions. He also concurs that this authority should be exercised with great caution. Kay’s reasoning differs in so far as he does not consider it expedient to completely discharge the interlocutory injunction. Whereas as the majority perceive the balance of convenience to be in the defendant’s favour, Kay disagrees. The libel is expressed in “coarse and abusive" language suggesting that the Defendant was motivated by some malice or personal feeling rather than acting in the public interest by publishing the article.

In his affidavit, the Defendant has not made an attempt to show the grounds of his belief in the truth of his statements. There is strong prima facie evidence among the affidavits that the statements are untrue. This satisfies the requirement for a plaintiff to show that the statements are untrue before an interlocutory injunction can be ordered.

Kay then considers the balance of convenience test and rules that this lies in favour of the Plaintiff. Granting an injunction would not prevent the Defendant from protecting the public with the legitimate publication of further statements about the Plaintiffs. He will only be restrained from repeating these particular allegations. Even if at the trial the Defendant was shown to have been justified, the likely damages for his inability to repeat the allegations in the interim would be minimal. By contrast, repetition of the statements would greatly harm, if not ruin, the Plaintiffs. If at trial, the Defendant’s allegations are proven false, the failure to grant an interim remedy may cause irreparable damage to the Plaintiffs.

Ultimately, Kay believes the injunction should have been granted.

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