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the case was likely to present features of great interest, and that mourners over a certain "fiasco,” naming it, were "likely to hear a little of the inside history of the business": Held, by the Court of Appeal, a contempt and to be disapproved of, but not a case for committal : the proper course would have been no order on the motion, and no costs.*
Publication of abstract of the affidavits filed on behalf of the plaintiff (but not then before the Court), with comments obviously interested, and gravely unfair and one-sided. After severe censure from the Bench, the proprietor of the newspaper, making his humble submission and apology to the Court, was ordered to pay the costs of the motion.t
The plaintiff in a suit of local interest furnished a local newspaper with a copy of the bill. The paper published a digest of the bill with some slight comment, and a fair and temperate discussion ensued between that and another local paper. Upon a motion, by the plaintiff, to commit the proprietors of the respective newspapers, Bacon, V.C., held that there had been a clear technical contempt, but the
* Hunt v. Clarke, u.s. (Star); cf. In re Crown Bank, Ld., In re O'Malley (Star), 1890, 44 Ch. D. 649, North, J. (a somewhat similar case, but article obviously biassed and stronger-fine £50).
+ Tichborne v. Mostyn, Tichborne v. Tichborne, u.s. (Pall Mall Gazette. The Times and the Morning Advertiser had republished the article with acknowledgment and without any comment of their own. Order, no costs on either side); (cf. O'Shea v. O'Shea and Parnell (Star and New York Herald, Times, 19th February, 1890). The Morning Post had published an article with extracts from the affidavits, and a statement as to certain evidence very damaging to the plaintiff which would be brought forward by the defendants. The printer was ordered to pay the costs of the motion. Per Curiam in Hunt v. Clarke, u.s. : Many paragraphs that appear in newspapers concerning causes about to be heard are not to be approved of. Cf. on this point Brook v. Evans, 1860, 29 L.J. Ch. 616; Metropolitan Music Hall Co. v. Lake, 1889, 58 L.J. Ch. 513 ; In re American Exchange in Europe, 1889, ib. 706 (which three cases have been more particularly mentioned hereinbefore); Ex parte Green, 1891, 7 T.I.R.411.
plaintiff having initiated and invited the discussion, there would be no order and no costs.*
If an advertisement is received and published in the ordinary course of business, it must, in any event, be shewn that the printers and publishers of the newspaper had particular information as to the cause, and on whose behalf the advertisement was brought, or it must be shewn that the advertisement itself was on its face such that a person of ordinary intelligence conducting a newspaper must have known that its publication was an interference with the course of justice.t
It is not, without more, a contempt to publish, pending a cause, an advertisement offering £100 reward for documentary evidence-e.g., that nickel-plating was done previous to a certain year,t or to advertise for a lost deed, or a lost will, or for a certificate of marriage, or of baptism, to prove heirship or kinship.I
* Vernon v. Vernon, 1870, 40 L.J. Ch. 118; 23 L.T. 696 ; 19 W.R. 404 (Berrow's Worcester Journal—The Worcestershire Chronicle); cf. Daw v. Eley, 1868, L.R. 7 Eq. 49, 61.
+ Plating Co. v. Farquharson, 1881, 17 Ch. D. 49, C. A. (Birmingham Daily Post-Action relating to a Birmingham trade).
I Ib.; per Jessel, M.R. Lord Hardwicke, L.C., committed the publisher of the Bristol Journal for publishing an advertisement relating to answer put in by defendant. The publisher, disclosing at whose instance the advertisement had been inserted, was subsequently discharged on submission, paying the
Cann v. Cann (Mrs. Farley's Case; Case of the Bristol Journal), 1754, 3 Hare 333 n.; 2 Ves. Sen. 520; 2 Dick. 795. In Purcell v. McNamara, a similar case (unreported), Lord Erskine refused to commit, Birch v. Walsh, 1846, 10 Ir. Eq. Rep. 93, 99, per Smith, M.R. But see Ex parte Fones, 1806, 13 Ves. 237, where, however, Cann v. Cann is distinguished. See further § ii. (c.) infra ; Plating Co. v. Farquharson, ub. sup., distinguished from ordinary case of contempt by comment per North, J. In re Crown Bank, In re O'Malley Star), 1890, 44 Ch. D. 649 ; 59 L.J. Ch. 767; 63 L.T. 304 ; 39 W.R. 45
§ ii. Contempts by party, or other interested person. Unlike a newspaper proprietor, or a printer, or some such person who merely carries on a business, a party or other person interested or concerned in the cause has not only a peculiar duty cast upon him not to discuss in public the merits of the questions in issue, but if he permits communications written or inspired by him to appear in newspapers without his name, the cause is prejudiced through the deceit, readers being influenced by the knowledge of the matter he is able to display, without being aware that the writer is an interested person, and when he comments on the case he commits contempt, not unwittingly or through negligence or oversight, but of set purpose to serve his own ends.*
(a.) Making, or supplying the materials for making, comment.
So, upon an application against the authors and printers of a pamphlet, dedicated to the Lord Chancellor, reflecting, by the aid of partial misrepresentation, upon the conduct of certain persons in a lunacy matter, Lord Erskine, L.C., believing the excuse that they were ignorant of the contents refrained from exercising the jurisdiction against two of the printers, committed the third, who had been asked to desist but had refused, and the authors, who were persons interested in the matter.t
And a solicitor to the cause, discussing the merits in a newspaper, under an assumed name, was ordered to stand committed, and
* Daw v. Eley, 1868, L.R. 7 Eq. 49, Romilly, M.R.; Coleman v. West Hartlepool Ry. Co., 1860, 8 W.R. 734, per Page.Wood, V.C.
+ Ex parte Fones, 1806, 13 Ves. 237.
| Daw v. Eley, u.s. (order not to be enforced for a fortnight, to give opportunity for an apology). Cf. S.C. § i. (a.), supra. Upon facts raising a presumption that a solicitor to the cause had furnished the material for a contempt, Lord Langdale, M.R., put him upon his oath to deny it; Littler v. Thomson, 1839, 2 Beav. 129. But upon a like suggestion being made recently,
Where persons believe that a man who is under a prosecution on a criminal charge is innocent, the expression of that belief, even in public, by way of an appeal to others to unite in furnishing means for the defence, though not perhaps strictly regular, should not, ordinarily, be made a matter of complaint and punishment.*
But when at a meeting, held for the purpose of providing funds, the merits of the pending prosecution are canvassed and discussed, and the evidence which will be given at the coming trial made a matter of public observation and discussion in the neighbourhood from which the jury will be taken, a gross and aggravated contempt is committed, * and where a person, in another county, makes a speech in public abusing the Court, and expresses his intention to proceed in his contempt despite the Court, he commits a contempt which the Court cannot possibly pass by.t
If a statement where first made may be privileged as made by a person having a legitimate interest in the case to persons having a legitimate interest in the case, the privilege will not extend to subsequent publication in the newspapers by the person making the statement and others acting with him. I
the Court said that that was a matter which must form the subject of another application, and was not to be considered incidentally upon a motion against the publisher of the matter complained of; Peters v. Bradlaugh, 1888, 4 T.L.R. 414, 418, D.
* Reg. v. Castro (Onslow's and Whalley's Case), 1873, L.R. 9 Q.B. 219. | Ib. (Skipworth's Case), 1873, L.R. 9 Q.B. 230.
I Watt v. Maxim-Western Electric Co.-Maxim-Western Electric Co.v. Watt 1888, 5 T.L.R. 170, North, J. (Speech by a director at company meeting subsequently published by directors in Financial News and Electrician--copies of newspaper purchased by directors and distributed—the respondent (the director making the speech) ordered to pay the costs). See also as to this subsection Birch v. Walsh, 1846, 10 Ir. Eq. Rep. 93, where counsel in the cause having supplied to the Tipperary Vindicator what was alleged to be a garbled report of the proceedings, the Court refused to commit, as it did not appear that there were any more witnesses to be called, or that, if there were, the publication could deter them, or in any way obstruct the free course of justice.
(b.) The publication of pleadings, or other papers, with or without cominent.
It is not a contempt for persons having a legitimate interest in a case, as a number of shareholders in a windingup, to distribute amongst other persons with a legitimate interest, as other shareholders, in a private manner, and without any defamatory view, or intention to obstruct the course of justice, but only to shew the reason for the course they were taking, a letter stating the facts of their case, as the charges in the petition, and giving extracts from the evidence.*
But the sending about by the petitioner, a shareholder, of circulars containing evidence given formerly, and to be offered again, under section 115 of the Companies Act, 1862, would constitute a gross contempt, as tending to defeat the object of the proceeding.t
It is a contempt to circulate through the post and distribute amongst strangers to the action copies of the statement of claim, containing allegations imputing bad faith to the defendant, and under circumstances calculated to prejudice the defendant in obtaining evidence in support of his defence, f or for the plaintiff in an action for dissolution of partnership to abstract from the Receiver's office a rough draft of the Receiver's interim report, and to print and circulate the draft as though it were the report.
And to print and circulate amongst strangers to the action, though concerned in becoming acquainted therewith, an interlocutory order with a recital of the most material facts
* In re London Flour Co., 1868, 17 L.T. 636; 16 W.R. 474, Stuart, V.C.
+ Re Sir John Moore Gold Mining Co., 1877, 37 L.T. 242, per Bacon, V.C.; cf. In re American Exchange in Europe, 1889, 58 L.J. Ch. 706; and see In re Western of Canada, etc., Co., 1877, 6 Ch.D. 109.
I Bowden v. Russell, 1877, 46 L.J. Ch. 414; 36 L.T. 177; W.N. 1877, p. 55, Malins, V.C. § Mitchell v. Condy, W.N. 1873, p. 232, Bacon, V.C.