PART IV.

CHAPTER V.

Printing brief.

Publishing &
petition to
Court of
Chancery.

article of this sort. In the case last referred to, a motion to commit the publishers of two newspapers which had simply reprinted the article was refused, but the publishers had to pay their own costs. The printer of a newspaper which had gone beyond merely reprinting the article, was made to pay the costs of the motion. (a)

Vice-Chancellor Kindersley committed to prison the publisher of a newspaper, for having published a leading article commenting on affidavits made in a suit in Chancery, which had not yet come on for hearing, and holding up to ridicule the makers of the affidavits, and characterising their conduct as utterly disgraceful. (b)

If a court make an order prohibiting the publication of the proceedings pending a trial likely to continue for several successive days, it is a contempt of court to disobey such order. (c)

On a similar ground, viz., that the publication tended to prejudice the world with regard to the merits of the cause before it was heard, the act of a party who printed his brief before the cause came on, was held a contempt of court, though there was nothing in the publication reflecting the court in any way. (d) upon

It was also held a contempt of court for a newspaper to publish, before it was heard, a petition which had been presented to the Court of Chancery for the winding-up of a company, containing grave charges against the directors. It was contended, on behalf of the newspaper proprietor, that the case of a petition to wind-up was an exceptional one, because under the Act it must be advertised, and the advertisement must be accompanied by a statement that (a) lb. See also Tichborne v. Tichborne (22 L. T. N. S. 55).

(b) Felkinv. Herbert (9 L. T. N. S. 635; 33 L. J. 294, Ch.) In this case the publisher was released from custody after ten days' confinement, on payment of costs and fees, and humbly apologising to the court for the contempt which he had committed. The motion for his discharge was opposed on the ground that he should also have apologised to the persons who had made the affidavits, and whom he had injured by the reflections contained in the leading article. The Vice-Chancellor, however, thought that the making of such an apology could not be made a condition precedent to his discharge. "He was not," said his Honour, "committed for an offence against anything appertaining to the honour or character of the defendants, but because the language used was a contempt of this court, and tending to impede the course of justice; not because it was an offence against any given individuals; and when he applies to be discharged, and expresses his contrition, how can the judge say he will not discharge him, unless he does something in respect of a matter for which he was not committed?" (1b.) (c) See Rex v. Clement (4 B. & Ald. 218). (d) See per Lord Hardwick (2 Atk. 471); S. C. nom. Roach v. Garvan (2 Dick. 794).

persons desiring to possess it might obtain copies from the solicitor by an ordinary application. Malins, V.C., said: "No doubt, every contributory and creditor can obtain such copies, but it is not open to any one of the public, strangers to the matter, and does not give a general licence to publish the petition. It is the duty of the solicitor, before he gives copies of such a petition, which frequently contains unpleasant charges, to ascertain whether the applicants are contributories or creditors: he cannot give copies to anyone who will pay for them. There is nothing in the Act or rules which sanctions the publication of a petition of this kind, any more than a bill in Chancery. It was said that there was no intention to injure in this publication; but it is a sound rule that you cannot dive into men's minds, but must draw inferences from their acts. In this case I must attribute to these proprietors, that they did not print these grave charges of fraudulent conduct against these directors unknowingly and unwittingly. They may be true or false, but that must be decided on the evidence. If you once permit such a publication as this, any person may file a petition, and any proprietor of a newspaper may print and publish it, and thus it may be made the vehicle of grievous injury to an individual character."(a)

PART IV.

CHAPTER V.

letters by

"It is of the parties.

It is a contempt of court for the solicitor of one of the Publication of parties in a suit to write letters for publication in a newspaper, solicitor of one which tend to influence the result of the suit.(b) highly important," said Lord Romilly, M.R., (c) "that the court should not allow steps of this sort to be taken by the officers of the court in causes in which they are engaged, which possibly may have an effect favourable to their client or unfavourable to the other side; and I may further say that if I am to go minutely into every sentence of a letter which is written in a public newspaper, to say this is questionable, and that is doubtful, and the like, it is imposing a task and a duty upon the court which it will be impossible to perform. There is one distinct line drawn, which is this, that gentlemen who are concerned for contending clients in this court, whether solicitors or counsel, should abstain entirely from discussing the merits of those questions in public print; if they do it at all, they ought to put their names to their communications. But to let the public suppose that it is merely done by a person who takes a great interest in, and has great knowledge of the subject, and discusses (a) Re Cheltenham and Swansea Railway Carriage and Wagon Company (20 L. T. N. S. 169; L. Rep. 8 Eq. 580).

(b) Daw v. Eley (L. Rep. 7 Eq. 49).

(c) lb. 61.

PART IV.

CHAPTER V.

Liability of editor for

insertion of anonymous

letters.

it from a public point of view, when, if the fact were known, he is the solicitor of the defendant, and has the strongest possible interest in his success, is in my opinion, highly reprehensible." The

The letters published in this case were anonymous. suit was to restrain the infringement of a patent, one of the issues raised being as to the novelty of the plaintiff's invention, and the letters written by the defendant's solicitor stated facts tending to disprove the novelty of the invention. On the appearance of the first letter, the plaintiff wrote to the editor referring to the suit, and suggesting that the writer of the published letter was an interested party. Notwithstanding this, the editor, besides refusing to insert the plaintiff's letter, as containing personal imputations, afterwards published a further anonymous letter from the defendant's solicitor, knowing that he was a solicitor, but not knowing that he was the solicitor in the pending suit. A motion was made to commit the editor also for a contempt of court, but the motion was refused, the editor, however, having to pay his own costs. Lord Romilly said: "The case of the editor of a newspaper is very different from that of persons who write letters to the paper for publication. His duty is simply to take no part in matters purely personal between individuals, or in matters which are the subject of a lawsuit. But it often happens that private matters are so mixed up with public matters into which it is his duty to enter, that it is very difficult to draw the distinction between them. this case, if the editor had inserted Mr. D.'s [the plaintiff's letter, I should have thought that there was nothing in his conduct calling for the interference of the court; but he did not insert it, and afterwards, with notice that a suit was pending, with the knowledge that the author of the letters was Mr. C., and that Mr. C. was a solicitor, which ought to have induced him to inquire further, and ascertain the exact position which Mr. C. occupied, he allowed further letters on both sides to be published. I am inclined to think, by what the plaintiff told him, he was put upon inquiry whether Copper Cap' [the nom de plume of the letter-writer] was connected with the suit." His Lordship, having taken time to consider the matter, said, on a subsequent day: "As regards the case of the editor, I think that he did not show quite the forbearance towards Mr. D. that he might have done, considering how materially interested Mr. Ď. was in the matter; and that he might have made some little excuse for the warmth which Mr. D. showed upon the subject. At the same time there is nothing I can find against the editor

In

1

That

PART IV.

CHAPTER V.

ing newspaper

tion cannot

for which I can require him either to make an apology or to pay the costs of this motion; but, for the reasons I stated on the last occasion, I cannot give him costs. is out of the question. He has certainly shown a tendency to decide against Mr. D.; but I also feel for the difficult position in which an editor is placed in such cases. But, as I said before, with respect to him I can make no order." If one of the parties to a suit has himself supplied the Party supplynewspaper with the information upon which comments are with informamade, he is not in a position to complain of the contempt. complain of Where the plaintiff in a suit procured the insertion in a contempt. local newspaper of a statement of his claim, and his agent gave the newspaper proprietor a copy of the bill, a motion having been made to commit the proprietor for contempt in publishing certain articles disparaging the plaintiff's claim, Bacon, V.C., refused to make any order whatever in the matter, saying: "I am not considering the offence committed against the court by contempt, but the right which the plaintiff in the suit, who has endeavoured to make use of a newspaper for his own purpose, has to come afterwards and complain of subsequent statements or comments, not malevolent and not libellous, upon the subject which he has submitted to the editor of that newspaper. What right has he to be here to complain? I cannot conceive that he has the slightest right in the world." (a)

not justify

Though one party to a suit in Chancery publish newspaper Publication by attacks on the conduct of his opponent, the latter will not be one party does allowed, by way of defence, to publish, pending litigation, publicatio by ex parte garbled accounts of any of the proceedings in court or before the examiner. (b)

In a case of this kind, Lord Hatherley (when ViceChancellor Wood) restrained, by injunction, the publication of a pamphlet containing an unfair account of the evidence of one of the witnesses, taken before the examiner, saying: "If the one party endeavours to prejudice the public in any way against the other litigant party, there is not the slightest justification for the other party doing the same; and this court, in the administration of justice, always takes care that neither party shall do it. I quite agree with the respondent's counsel in thinking that the present times are very different from those of Lord Hardwicke, and that the present feeling and the general judgment of mankind as to what is or is not proper to be published, are

(a) Vernon v. Vernon (23 L. T. N. S. 697).

...

(b) Coleman v. West Hartlepool Harbour and Railway Company (2 L. T. N. S. 766; 8 W. R. 734).

PART IV.

CHAPTER V.

Distinction between publication by news

and publication by one of the litigants.

exceedingly different to what they were at that time. That may at once be conceded; but at the same time, even as regards the publicity of proceedings in courts of justice, and when it is a question between parties who are not litigant, but between one of the parties litigant and the publisher of a newspaper, for instance; even as between these parties the court, in these days, recognising in the highest possible degree the importance of the public being duly and fairly informed of all that takes place, yet does take care that there shall only be such proper information published in a fair and reasonable manner. mean that courts of justice, in giving directions to a jury as to the ultimate result in that which is or is not a fair publication, always leaves it for the consideration of such jury whether or not an independent, or supposed to be independent, person, who has published a narrative of proceedings of a court of justice, has published them in a fair and reasonable manner, being anxious to inform the public; or whether there is evidence of malice in the modes in which the report was framed. Now, this court, in dealing between litigants, takes care that the litigants shall not, by such foolish attempts as appear to me to have been made on both sides here, create public prejudice, each against his opponent, in the progress of the litigation, which ought to be conducted with all proper calmness and discretion, and for the purpose of eliciting truth.”(a)

The publication of the proceedings in court, pending litigation, by a newspaper reporter, differs from a publication paper reporter, by one of the parties to the litigation in this, that there is a prima facie presumption against the fairness of the latter publication." Nobody," said Lord Hatherley, in the case last referred to, (b) "feels more sensibly than myself the advantage of having a fair publication of all that takes place in a court of justice; but I make this observation, that whenever one of the litigants is the party making the statement, that is a very strong prima facie presumption against its being at all fair, and that in any case in which a litigant makes a publication, it is exceedingly different from that which a newspaper reporter would publish simply in the discharge of what was his duty. Such a case is widely different. I am not aware that any case precisely like this has occurred before; but I had no hesitation in granting the interim order for the injunction in the first instance, because I was aware of what the course of all the courts at all times has been, with reference to keeping their proceedings pure from this false description of excite(a) 2 L. T. N. S. 767. (b) 2 L. T. N. S. 768.