Foulger v Newcomb [1867] LR 2 Ex 327
Slander; words in respect of business; special damage
(248 words)
Facts
The claimant was, amongst other things, a warrener and gamekeeper and he was regularly employed as such by neighbouring land occupiers. These neighbouring occupiers often engaged in fox hunting and were against killing or destroying foxes in their neighbourhood by other means. The claimant understood that he would not be employed by the occupiers if he killed foxes, or, if already employed, he would be in breach of his duties by doing so. The defendant falsely alleged that the claimant trapped three foxes, thereby breaching his employment terms. As a result, the claimant’s reputation was severely damaged and the occupiers would no longer employ him as warrener or gamekeeper.
Issues
The defendant argued that his words were not actionable as they imputed a breach of contract to the claimant. Thus, special damage was too remote and could not have naturally resulted from the words. The claimant, on the other hand, said that defendant’s words imputed to him misconduct in his business, and as such, were in themselves defamatory, especially having regard to the defendant’s knowledge of his circumstances.
Decision/Outcome
The Court agreed with the claimant. It held that words imputing misconduct in his business to a man were actionable. As the defendant knew of the claimant’s position as gamekeeper and also knew of the rule that gamekeepers should not kill foxes, he falsely and maliciously said that the claimant was involved in fox-killing. Slander would thus have been committed even in the absence of a special damage.
Updated 19 March 2026
This article accurately summarises the Victorian case of Foulger v Newcomb [1867] LR 2 Ex 327, a foundational authority on slander actionable per se where words impute misconduct in a person’s trade, business, or profession. The legal principle described — that such words are actionable without proof of special damage — remains good law and is consistent with the modern statutory framework. The Defamation Act 1952 and, more recently, the Defamation Act 2013 have reformed defamation law in England and Wales in significant respects, most notably by introducing a requirement under section 1 of the 2013 Act that a statement must have caused or be likely to cause serious harm to the claimant’s reputation before an action will lie. However, the core common law principle illustrated by this case — that slander imputing unfitness or misconduct in a trade, profession, or calling is actionable per se — is preserved and remains relevant to understanding the development of defamation law. Readers should note that the 2013 Act governs claims in England and Wales today, and any modern claim must be assessed against its requirements alongside established common law principles. The article is suitable as a case summary for academic purposes.
