SUPPLEMENT
TO THE
"HONGKONG TELEGRAPH
INTERESTING
SHANGHAI LIBEL CASE.
POLLAK. O'Shea.
The petition discloses no libel.
The petition discloses no libel on the plaintiff. The petition does not identify the plaintiff with any of tlo persons referred to in the words complained of.
That motion is brought under Rule 43 of the Rules of this Court and also under the general rule with regard to embarrassing the pleadings.
OF THE 14TH DECEMBER, 1895.
the boat raco yesterday." It was a caso on appeal from the Supreme Court of New South Wales (case cited).
His Lordship-Was an iuuuondo ubt sot out in the ploadings?
Mr. Ellis-I am going to deal with the question of do more than what has been done, and I wouk! refer you to Odgers na Libel, pago 567, whore under the heading "Proof that the words referted to the plaintiff," occurs the passage the libel does not name the plaintiff there may
be need to show who was meant.”
His Lordship-Wo have not got to that, yot. All that Mr. Wilkinson says is that for his information you ought to say which of these three mon was meant, or uld the words "meaning the plaintiff" after the description you say applies to him. Then he will know with certainty who is
mennt,
Mr. Ellis-I say there is sufficient identification because, the petition avors that the defamatory matter was published concerning the plaintiff.
His Lordship-If the plaintiff is the Polish Jew you ought to say so and then we would know where wo stand; that is nll. When you come to trial you must establish by evidence that the Polish Jow was in fact moant to be the plaintiff. On the fact of it I do not think you can get over that difficulty because it so happens that the paragraph dees refer to more than one person, and you must show exactly which of these persons is the plaintiff. It is simply adding the words " meaning the plaintiff."
Mr. Ellis-Do I take it you are of opinion that the peti- tion ought to be amended with regard to those words? If so I won't trouble you with further argument on the point.
His Lordship-Perhaps, you will say which of these persons you do menn ?
His Lordship-And in the second paragraph? Mr. Ellis-But like shrewd business men they" pril
Mr. Wilkinson, continuing :-Now it will be seen that wo havo in paragraph 3 a statement that false and malicions words were written "of and concerning the plaintiff," but then when we come to look at the words themselves, we find that five, or six porsons possibly,, are referred to and In the Supreme Court, at Shanghai, on the 9th instant that there is nothing in the petition itself to identify theende later on. I would submit it is not necessary to Mr. George Jamieson, Acting Chief Justico, hoard a mo
Plaintiff with any one of these persons. The first person tion by the defendant in a libel suit then pending in which mentioned in what is called "the slauder," is what is called a Mr. Iguntz Pollak is the plaintiff and Mr. Houry O'Shea,
"the unfortunate clerk." Now, is the plaintiff "the_u Editor and Proprietor of The China Gazette, the defendant. fortunate clork?" There is nothing to show he is. The Mr. II. Browett and Mr. F. Ellis appeared for the plain next person is a "revengeful contemptible little l'oliels tiff and Mr. H. S. Wilkinson, Crawn Advocate, for the Jew and again there is nothing to show the plaintiff is defoulmit. The China Gazette gives the following report the Polish Jew referred to. The next is "the firm," but of the hearing --
the petition does not say the plaintiff is a member of that At the opening of the proceedlings, Mr. Wilkinson said :— firm; and then, there is mentioned a referenco to "The May it please your Lordship, I appear in support of a motelograph clerk," who may or may not be "the unfortunate tion on behalf of the defendant. The motion is: ") clerk," but at all events he seems to be distinct from the That the petition be dismissed without any answer being Polish Jow." Then, we have in paragraph.3b. “the mein- required of the defendant, or in the alternative, that thebers of the firm," and then we have the informer," who may or may not be any of the people referred to above. potition.be amended by the plaintiff, and that until such amendment all proceedings in the suit be stayed on the In the first paragraph we have three parsons, who must, so far as any menning can be given to the words at all, be following among other grounds-
absolutely distinct. These three are the clork, whether the unfortunate clerk or the telegraph clerk it is the same, the Polish Jew, the firm and the members of the firm and there is no identity between any of theso. Now the Rule with regard to the identification of the plaintiff is laid down very distinctly, The defamatory words must refer to some ascertainal or ascertainable person, and that person must bo the plaintiff. That is Odger's Law on Libel and Stan- Mr. Ellis-What section is that?
der, second edition, 1890. In Starkie's Law of Libel and Mr. Wilkinson-It is Rule 43. "Defence on ground of Slander, third edition, page 360, which was published in 1869. wo find "And so afgo where the libellous matter charged does law. Where a defondant conceives that ho has a good legal or equitable defence to the petition, so that even if not, on the face of it, appear to relate to the plaintiff, although the allegations of fact in the petition were admitted or previously averred to be published and concerning the plaintiff, and innuendo is necessary to show in what way clearly established "—that is the allegations of fact and no
Mr. Ellis-The words are the work of a revengeful,,« it relates to the plaintiff." That is, as I have spil n others,-"Yet, the plaintiff would not be entitled to any decreenguinst him (the defendant), he may raise this defonce Standard book, although published in 1869, and it is nicees-contemptible little Polish Jew.”.
His Lordship-Will you add “meaning the plaintiff ?' by a motion that the petition be dismissed without any-sary to see whether thint rulo prevails at the present moment or not. In Cunningham and Mattison's Precedents
Mr. Ellis Very well, my Lord. ** auswer being required from him.”,
and Pleadings, published in 1878 wo find :-But not only must the defamatory mutter be alleged to be published, to be false and to be malicions, it must also he alleged to be spoken of and concerning the plaintiff. The plaintiff socks damages in respect of an injury tone to his right of reputation. It may well be that the defondunt is the author of a most abominablo libei; but unless the plaintiff avors and proves that the defamation has roference to him, and is a reflection upon his character, he makes ont no case, Hence the necessity for averring, as is always done, that the words complained of were spoken, etc., and published "of the plaintiff" or "of and concerning the plaintiff," and the necessity of this averment is only dispensed with where the libellous matter itself manifestly points out and applies to the plaintiff. But the necessity of strictly identifying the plaintiff with the defamatory matter does not end with the phase of the general averment. In the body of the pleading the full text of the libel or slander is set out, and here. it is the duty of the pleader wherever it is necessary, to interpolate an averment, or an innuendo, as it is called, connecting the plaintiff with any statement which, on its face, may not seem already to apply to him, but which was intended to apply to him. Instances of this innuendo will be found in the text." That was in 1878, and hero is the very latest book on libel and (3)-On the 3rd of October of the present year, the slander, Odgers, whielt is the leading text-book, second defendant printed and published or enused to be printed and edition, published in 1890. On pago 331 occurs the published in his said newspaper an article headed or entitled passage: "Remember, however, that the presence of such Reckless Newspaper Sanders." The said article con introductory averment will not cure the omission of proper tained, falso and malicious words and statements of andl innuendo.". I say in this statement there is no innuendo, concerning the plaintiff and libels upon the plaintiff calen-and there is nothing to show me who the plaintiff wishes Iated to hold up the plaintiff to public odium and contempt. to be indentified with the Polish Jew, the clerk, the firm, The following are the libels complained of
the informer, or the telegraph clerk. That is almost too clear to justify me in troubling your Lordship with further incut and the point is whether you will allow an amendment and whether, if it be allowed, dismiss the cause as showing un libel. Of course until I know who is the person the piniutiff wishes to be identified with, or indenti- fios himself with, I cannot deal, except nuder the alterna- tive, with the libel, and I do not think I ought to go fully into it and ask whether there is a libel in "Poliah Jew," or whether if it is the plaintiff who is referred to, that is any libel in itself; or whether I ought not to take up all the possible alternatives.", *
The Rule then goes on to say: "On hearing the motion the Court shall either dismiss the petition or order the defendant to put in uu auswer within a short time.". I will ask your Lordship for the first of these alternatives, that is to dismiss the petition on the grounds that I shall set out. I shall cito Rule 10: "Defectivo petition-wbero a petition is defective on the face of it by reason of non-compliance with any provision of these Rules, the Court may either ou ap plication by a defendant, or of its own motion, make an order to stay proceedings until the defect is remedied." Then there is Kule 27:-The fasts material to the estab- lishment of the plaintiff's right to recovor shall be alleged positively, briefly, and as clearly as may be, so as to enable the defendant by his auswer either to admit or deny any one or more of the material allegations." I say the petition is defective in that respect, and I shall row proceed to read it, and under the rules of the Court at home anything embarrassing must be set right. The petition is :-
(1)-The plaintiff is an Austrian subject resiling at Shanghai in the Empire of China.
(2). The defendunt is a British subject residing at Shanghai aforesaid and is the Editor and Proprietor of a newspaper called The China Gazette which has extensive circulation in Shanghai.
י| *
"Reckless Newspaper Slanders."; 3a-"The unfortunate clerk's exposure is the work of a revengeful contemptible little Polish Jew, who in spite upon the firm which recontly discharged him, and out of malice against the telegraph Clerk who was friendly with the members of that firm alleged that the Clork was in the habit of giving the contents of telegrams to the firm." 3b-"In the sun issue the following words :-At the Police enquiry before Consul Bock to-day the Clerk admitted that he had spoken about tele- gruns that passed through his bands while being entertained at tiffin or dinnor by the principals in the firm who obviously employed their hospitality to extract useful secrets from their foolish guest but like shrewd business man they paid nothing for the information to their unfortunato dupe who has boon ruined through his own indiscretion coupled with the spite und other unpleasant characteristics of the infor- mor,"
(4)--In consequence of the publication of the said libels the plaintiff has been and is greatly projudiced and injured in his credit and reputation and has incurred public odium and contempt..
Tha
The plaintiff claims Tls. 5000 8.S. damages. plaintiff therefore.prays...
1. That the defendant may be ordered to pay to the plaintiff forthwith the said anm of Tis. 6000. S.S. 2.That the defendant may, ho ordered to pay the
costs of this suit, me dage 3.That the plaintiff may have such further or other relief ns the nature of the case may require and this Honourable Court may deem necessary,
His Lordship-Perhaps it would be better to deal with this point first, and then, if it is desirable to go on with the other matters you will be at liberty to do so.
Mr. Wilkinson-The point I make is that, however it be amended, there is no libel, taking the whole thing as set ont, with the simple addition of identifying the plaintiff. I would say that there is no libel. I wish to take your opinion as to whether it discloses any libel at all.
His Lordship-Mr. Ellis, will you please direct your attention to what Mr. Wilkinson has said, that you failed to identify the plaintiff with any of the different people! who are mentioned in the alleged libel set out? The point is whether you ought not to have added the words "noan- ing the plaintiff," after the description of some of the different people referred to.
nothing for the information to their unfortunate dupe, who has been ruined through his own indiserction coupled with the spite and other unpleasant characteristics of the informer." The words "coupled with the spite and other unpleasant characteristics of the informer "refer to the plaintiff.
Iis Lordship-I think you must amend the petition in so far, as adding the words "racaning tlie plaintiff" after those words.
24
Mr. Ellie-Very well, my Lord. I wish to address you now with regard to the point of innuendo; 1, submit it is not necessary for us to state any innuendo in this case.
His Lordship There is no innuendo possible as far as Contemptible little Polish Jaw" is as the words go. plain as could be, and the only question is do they mean the plaintiff, aud to that extent you must amend the petition. Now, Mr. Wilkinson, will you leave the matter drop thera?
Mr. Wilkinson-Assuming the petition is amended, and' these words are put in, does that disclose a libel upon the plaintiff The reference to unpleasant characteristics" I think wo may dismiss on the spot. Everybody has got unpleasant characteristics. I am sorry to say I've got some myself that I am aware of, and the only question is whether the word "spite" alone is a libel. With regard to the rest I do not think I ought to tronble your Lordship by going into details. I ask you to decido now, once and for all, whether there is or is not a libel. By going into it I shall havo to show something more than is necessary to show here, in order to prove that it cannot be a libel on the face of it; but sitting as you are now without any directions having been given with regard to trial, I think you can deal with the question whether it is a libel and n case for a jury to decide." Another point is, whether in any caso, taking the whole of the circumstances of the case together, the plaintiff ought not to have his.suit now dis- better 'cause. The words evidently refer to some legal missed, or whether he ought to be allowed to make out a proceedings; there aro comments upon them, and of course there can be no libel in the heading. I submit there is no substantial libet on the plaintiff and that we ought not to be called upon to go into the case. There are two questions, whether if it were before a jury they would call it u libel, or whether now, taking the case brouilly, you ought not to dismiss it and save us from further answer.
Mr. Ellis-Do you wish me to address you on this point, my Lord?
His Lordship-No, I think not. I am quito unable" to agree with Mr. Wilkinson. I think as it stands prima facie, there is matter to go to a jury.
I.
Mr. Wilkinson-Very well, my Lord. That is all I asked you to decide.
His Lordship-1 think as it now stands it must go to trial. The plaintiff is entitled to amend the petition by putting in those words and under the circumstances I will cave the costs, to be costs in cause I am bound, to say I think it is a slip more than anything else, and you have asked for a great deal more than I can possibly give you.
Mr. Wilkinson-Then the order will be that the pati tion ba amended, proceedings in the meantime to be stayed, and that the costs bo costs in the cause?,
His Lordship-Y85.
carry
Mr. Ellis-May it please your Lordship, I subrait that I was not obliged to draw my petition in any other way than I have done. I do not consider that it was necessary to name the plaintiff, and I would just like to call your atten- tion to one case, the case of the Australian Newspaper Company veraus Bennett, one of the House of Lords Appeal Cases. In that case the plaintiff was not named; he was only referred to in this way :" According to the Market Printed and Published by CHESNEY DUNCAN at No. 6, Folder's Hill,
to the City of Victoria, Hongkong. Street evening Ananias both Kenneth and Maclean won