Bonnard v Perryman case analysis

According to Lord Coleridge, there are two questions that the Court of Appeal will need to answer:

• Is there jurisdiction in the Supreme Court to issue an injunction to restrain the publication of an alleged libel, either at all, or before the libel has been adjudged to be such?
•  Is this a case in which as matter of discretion, the jurisdiction should be exercised if it exists?

The answer given to the first question is that it is absolutely independent of the circumstances of any case. The answer to the second question is that it depends entirely upon the Court.

The Court said that they were satisfied that there was jurisdiction to grant the injunction and therefore became necessary to consider whether the full Court had power to review the decision of  a Court of Appeal, consisting of a smaller number of judges. Lord Coleridge found that the point raised is absolutely unnecessary to ‘discuss or decide this question, because the decision of this court on the main question appears to be perfectly correct’.

According to Lord Coleridge the right of free speech is  for the public interest and individuals should exercise it appropriately with no wrongful actions. Unless an alleged libel is untrue, there is no wrong committed. ‘until it is clear that alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions.’

Before the commencing of the Common Law Procedure Act 1854, no court were able to issue injunctions is cases like this. The commencement of sections 79 and 82 of the Common Law Procedure Act 1854, gave power to the courts to grant injunctions in all actions of defamation. This power was also supported by the Judicature Act 1873, which was conferred by the Chancery Division of the High Court. However that power existed since 1854 and in was first used in the case of Saxby v Easterbrook.

If the Human Rights Act 1998 s 12(3) applies to a defamation action, on an application to restrain publication, the court is required to take into account whether the applicant is ‘likely ‘ to succeed in its application at trial before any such restraint can be given.

The outcome of the appeal must be whether injunction must be granted. The court will need to take decision, whether any future publishing will occur and take this into account. According to Lord Coleridge again , the outcome of the appeal must be ‘the court coming to a decision upon a question of libel or no libel’ and that should help them make a final decision of whether interim injunction should be granted.

Following the decision made in Quartz  Hill Consolidated Gold Mining Company v Beall, Hermann Loog v Bean and Liverpool Household Stores Association v Smith it was stated that interim injunction will not be granted unless very special criteria has been met. Before the Common Law Procedure Act 1854 and the Judicature Act 1873 (sections 79, 81 and 82 of the 1854 Act and sections 16 and 26, subsection 6, of the 1873 Act) coming into force the courts had no jurisdiction for granting interim injunction at or before the trial in actions of libel. There sections, gave power to the courts to grant injunction in actions of libel.

Going back to the case of Quartz Hill Consolidated Gold Mining Company v Beall, North J states: ‘ In the present case I think the objections to the exercise of the jurisdiction are at least three...in the first place, the alleged libel is not proved to be untrue. As a general rule, the plaintiff who applies for interlocutory injunction must shew the statement to be untrue.’ North J also stated the fact that there was no evidence on the statement to be untrue, except the evidence given by the Secretary of the plaintiff’s company. At this point the court refused to interfere. In Quartz Hill Consolidated Gold Mining Company v Beall the court experienced difficulty in deciding whether interim injunction should be granted, as the statement made in that case was of express malice and there was privileged communication between the parties. This point does not arise in Bonnard v Perryman as the article does not have any evidence of express malice. The final point mentioned my North J, summarises all three objections and gives reasoning for the decision: ‘the result is this, that on these three points, first, as to the religion of the plaintiffs, and the Jew’s den, secondly with respect to the acquisition of the furniture and thirdly with respect to Marks, I am satisfied on the evidence before me that the article is untrue in those material respects’.

North J also talks about the case, if it goes to trial. He believes that the final decision will be the same and that interim injunction should be granted. ‘ if the matter was before a jury now, upon the evidence which is before me-that is to say, the evidence of the plaintiffs uncontradicted, not cross-examined to, and merely resting on the defendant’s evidence in answer to it- I am perfectly satisfied there is not any jury in England who would say there should be a verdict for defendant in such case...I am quite satisfied it is a case in which a new trial would be directed.’

The final order made by North J is quite similar to the original one, mentioned previously. His aim is to restrict any further publication and selling of the article complained of in order to avoid future damages which may occur. He also prevents the defendants from re-publishing or repeating the article complained of or any abstract which may affect the plaintiffs. ‘restrain, not the defendant and each of them, but the defendant Perryman, his servants and agents, until trial or further order, from selling, circulating, or delivering, or communicating to any person or persons, or permitting to be sold or circulated or delivered or communicated, to any person or persons, any copy of the Financial Observer and Mining Herald of the 7th of February 1891, containing an article headed ‘Fletcher Mills, Providence, Rhode Island’.

The counsel defending the plaintiffs has stated that the purpose of the publication is blackmailing. The reason for that according to them is that, no matter even if the publication is untrue or atrocious, the court is powerless if the defendant chooses to swear that he will justify the libel at a trial. The counsel believes that the court should take into account the balance of convenience and inconvenience. They have concluded that no real injury will be done to the defendants, if injunction is granted, however there will be a great injury for the plaintiffs. On the balance of convenience and inconvenience, it is in favour of granting the injunction.

The defendant Perryman appealed in the Court of Appeal on 9th and 10th April 1891. Mr Perryman stated that he will be able to prove that all statements are true and agrees to be tried before a jury. Following Kelly&Co v Kellond, it was stated that there is no jurisdiction to grant an interim injunction in libel actions when the defendant he will be able to justify the libel before a jury. The Court of Appeal can overrule any decisions which are against this view. Lord Esher has referred to the Hadfield’s case where he mentioned that the Court of Chancery has had no jurisdiction to restrain the publication of libel before the Judicature Act came in force. The court have mentioned the case of Saxby v Easterbrook and the fact that the injunction in that case was granted after the libel had been found to be such by the jury. It was also stated referring to the case above and Liverpool Household Association v Smith that interim injunction will not be granted unless a very special criteria has been met. The court seems to be satisfied with the fact that there was jurisdiction to grant the injunction.

Kay LJ highlights the statements being made by the defendant Perryman. In paragraph 2 he states he has read the copies of the article, and in paragraph 4 , Perryman says that ‘all allegations are true in substance and in fact’. Paragraph 6 of the affidavit states that he had no connection with the plaintiffs. Order XXXVIII, rule 3 of the Rules of the Supreme Court 1883 requires that affidavit evidence made by person who is not able to strictly prove them must show not only the facts but the grounds of his belief. According to Kay LJ, the defendant Perryman ‘do not attempt to shew the grounds of his belief...there must be strong prima facie evidence that the statement is untrue’. In Kay LJ’s view there is the strong prima facie in the evidence given. In that case the courts should consider the balance of convenience and inconvenience. If injunction is granted it will not prevent the defendant from protecting the public by any other statements. It will only prevent him from repeating them. Kay LJ believes that if the defendant repeats or continues with the publishing it will cause great damage to the plaintiff and the public. These are the reasons given by Kay LJ to justify his opinion that interim injunction should be granted.