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it is very remarkable that it was never once exercised during the twenty years or more in which that Act was in full operation, by and before the actual framers of it* (viz.), Sir John Jervis, C.J., Sir Alexander Cockburn (afterwards Chief Justice), Martin and Bramwell (afterwards Barons of the Court of Exchequer) and Willes (afterwards one of the Judges of the Court of Common Pleas), sitting day by day administering the law and procedure under that Act, and yet not a single case is to be found in the books, nor in the Records of any of the Courts, of the granting of an injunction (either interlocutory or otherwise) to restrain the publication of a libel. There are indeed reports of cases which go far to negative the idea of any such extension of jurisdiction beyond that then possessed by the Courts of Equity. Jervis, C.J., said in the case of Gittins v. Symes, 24 L.J. C.P. 48 (which was an ex parte application under those sections of the Act for an injunction in an action for infringement of a patent) :—“ On cause being shewn, we can give such directions as a Court of Equity would do.” And Lord Campbell, C.J., said, in the case of Benson v. Paull, 2 Jur. N.S. 425, 25 L.]. Q.B. 274, “ It could hardly have been the intention of the Legislature to give the Courts of Common Law a jurisdiction much more extensive than the Courts of Equity have ever exercised.” And again, in the same case, “it never could have been the intention to confer a power on the Courts of Common Law which they could not satisfactorily exercise.” So that it appears from these and other decisions, that the intention of the Legislature was, that as regards the operation of those sections of the C. L. P. Act, injunctions should only be granted where a
* i.e., The Commissioners appointed to inquire into the process, practice, etc., in the Superior Courts at Westminster.
Court of Equity had, previously, jurisdiction to grant such. Therefore, unless a jurisdiction to restrain the publication of libels was actually conferred by the C. L. P. Act, there was, of course, none such to“ transfer" by the Judicature Act.
Such a jurisdiction was, however, as already observed, first asserted by the late Sir George Jessel, M.R., in the case Beddow v. Beddow (supra), then by the same learned Judge, sitting in the Court of Appeal with two Lords Justices, in the Quartz Hill Mining Case (supra), although no injunction was granted in that case. And in a subsequent case in the Court of Appeal (Liverpool Household Stores v. Smith, 37 Ch. D. 170), an application for an injunction to restrain the publication in a newspaper of future articles of a libellous tendency, reflecting on a company, was refused, on the ground of the difficulty of so framing an injunction as not to include non-libellous matter, and because, if granted and disobeyed, the question of libel or no libel would have to be tried on motion to commit (which would be clearly illegal), and because it would be very unadvisable to grant an injunction which would restrain the fair discussion, in the newspapers, of matters of public importance, such as the probable success or failure of a public company.
It could not, therefore, be either “just or convenient," within the meaning of the Judicature Act, 1873, to issue an injunction to restrain such a publication.
The judgment in the Quartz Hill Mining Case was afterwards followed by the Court of Appeal, under the Presidency of the late Lord Coleridge, C.J., in the case Bonnard v. Perryman (1891) 2 Ch. 269, 60 L.J. 617, in which, although no injunction was granted, it was held that “the Court has jurisdiction to restrain by injunction, and even by interlocutory injunction, the publication of a libel,” but that the jurisdiction was such “as to require
exceptional caution in its use," and, adopting the language of Lord Esher, M.R., in the case Coulson v. Coulson, 3 Times L.R. 846, "the jurisdiction is of a delicate nature, and should only be exercised in the clearest cases, where if the jury did not find the matter libellous the Court would set aside the verdict as unreasonable.” And the Court held it to be wiser in the case before them, “as it generally and in all but exceptional cases must be, to abstain from interference until the trial and determination of the plea of justification.”
It appears, therefore, upon perusal of the judgment of the Court in Bonnard v. Perryman, that the new jurisdiction there laid down is beset with difficulties—(inter alia) that it is such as to require "exceptional caution in its use "-is of a “delicate nature,” and “to be exercised only in exceptional cases."
Is not a jurisdiction such as that inconvenient and unconstitutional ? Lord Coke says—"Nothing is lawful which is inconvenient.” And, “the law, that is the perfection of reason, cannot suffer anything that is inconvenient.” And will not this new jurisdiction, as laid down in the above case, be the means of introducing an undesirable and inconvenient degree of uncertainty into the practice and procedure of the Courts ?
The cautious language used throughout the judgment in Bonnard v. Perryman, is in itself sufficient to throw doubt on the legality of injunctions in actions of libel; added to which the impolicy of granting them is manifest.
A jurisdiction of so delicate a nature as to require exceptional caution in its exercise, must be hazardous and uncertain, or inconvenient and impolitic; and if it be either, it is unconstitutional, and therefore contrary to the fundamental principles of the English Law.
The law of England allows a party libelled, not only the choice of two remedies; one in a civil court, the other in
a criminal court; but he may proceed at the same time, both by action-at-law and by indictment: and although in practice the double remedy is seldom resorted to, any case in which, after action brought, the Defendant persisted in republishing the same or other libellous matter, every such publication being a fresh offence, the proper course, undoubtedly, would be (particularly in such a case as that which Sir George Jessel mentions as “an atrocious libel”) to proceed for such second or further publication by indictment; i.l., first by application to a magistrate for a summons, or a warrant to apprehend the offender, who may be committed for trial; when if convicted he may be punished by fine (the amount entirely in the discretion of the Judge) and imprisoned, and may also be required to find sureties for his good behaviour : and such is the recognised practical and constitutional remedy and mode of procedure established by law, and adopted and used for centuries past.
In the case of trivial libels in a newspaper, a Court of Summary Jurisdiction is empowered by the Newspaper Libel and Registration Act, 1881, to convict and fine offenders for such publication, unless they desire to be tried by a jury.
There is, moreover, a further reason why an injunction in libel is an inappropriate and unconstitutional remedy: a Defendant tried and convicted of libel, whether on indictment or criminal information, is entitled to move in arrest of judgment (a right expressly reserved by section 4 of Fox's Libel Act) but of which he is deprived, by the Court issuing a writ of injunction, and thereby usurping the functions of a jury and deciding the case without such a trial. It has now, however, been authoritatively laid down by the Court of Appeal, that a Judge has power to grant injunctions, interlocutory and otherwise, to restrain the publication of libels; but the caution to be observed in its use is not by any means too strongly expressed in the judgment of the Court; and if observed, the new jurisdiction will probably, sooner or later, become a dead letter, if it has not virtually become so already, on account of the obvious difficulties attending any attempt to enforce obedience to the writ: as may be gathered from the report of a recent case; where the Defendant, after verdict and judgment against him for libel, with heavy damages, continued, persistently, to publish repetitions of the libel, containing charges of fraud, perjury and conspiracy against the Plaintiff; yet the Court, in a subsequent action, refused to grant an injunction, and left the Plaintiff to his more appropriate remedy by indictment.* Now, if ever there was a case for the exercise of the new jurisdiction it was that one; an injunction was, however, very properly refused, and the Plaintiff left to his legal and constitutional remedy in a Criminal Court.
It was not until after the Judicature Act and the dictum of Sir George Jessel, M.R., in Beddow v. Beddow, that libel actions were brought into the Chancery Division. The bringing of such an action in that Division is an erroneous mode of procedure. Actions of libel belong to the Queen's Bench Division; and accordingly, where, in a recent case, the Plaintiff sued, in the Chancery Division, the Editor, Proprietor and Publisher of a Newspaper, in an action of libel, and claimed an interlocutory injunction, the Court refused to entertain the application, and said the action ought, forthwith, to be transferred to the Queen's Bench Division.t
A Defendant, against whom an action of libel is brought, has a right, whatever his defence, to a trial by a jury; and, until the case of the Quartz Hill Mining Company and that
* Salomons v. Knight (1891), 2 Ch. 294. + Plumbly v. Perryman and Others, W.N. (1891), p. 64.