Opinion of Mr. Cecil W. Lilley

re Payment into Court etc.

[Waterhouse & Co., Solicitors for Constable & Co.]

[Correspondence concerning Constable & Co.'s preparation for the libel suit brought by

Aleister Crowley against Nina Hamnett and the publication of her book Laughing Torso.]

Waterhouse & Co.

Solicitors

10 & 12 Bishopsgate,

London, E.C.2.

8 November 1933

CROWLEY

v.

CONSTABLE & COMPANY LTD & OTHERS

OPINION.

The new rule extending the right of payment into Court with a denial of liability to the Defendant in a libel action raises a problem of great difficulty in the present case, and may raise the same difficulty in any libel action brought in respect of the publication in which, as here, the publishers have justified. In the case of a newspaper further publication is not of course contemplated in the ordinary way, but where a book is the vehicle of publication it is in many instances true that further publication is contemplated. Indeed, as in this case, further publication may be an obligation owed by the publishers to the author.

There may be some question whether the words referred to in the statement of claim are defamatory at all. But that is a question first to be determined by the Judge as to whether they are capable of being defamatory, and second by the Jury as to whether they are in fact defamatory. It may I think be reasonably contemplated that the second question will be left to the jury as to each publication. The real defence in each case is justification. It is necessary to contemplate, however, that the defence may fail and in that event the Plaintiff would be entitled to a verdict, although in view of the circumstances it is extremely probable that that verdict would be for nominal damages only. If there were a verdict for nominal damages it is quite possible and even probably that the Judge would deprive the successful Plaintiff of his costs. The Judge could not, however, order the Plaintiff to pay the costs of the unsuccessful Defendants.

If the Defendants paid money into Court with a denial of liability the Plaintiff could take out the money if he chose. If he did take it out the action would be concluded against all the Defendants. The costs in that event would be in the discretion of the Judge but in the case of Beardon v. Capital Syndicate 27 T.L.R. 427 (C.A.) the peculiar result followed that the Defendant paying money into court was liable for costs up to the date of payment in, while the Defendants who had not paid into Court were given the whole costs of the action as against them. If the Plaintiff did not take the money out, but recovered a smaller sum at the trial the position would be that the Defendant who had paid money in would be entitled to judgment with costs after the date of payment in. The other Defendants, if they had not also paid into Court, could get no judgment themselves and would be liable for the costs of the action, unless the Judge deprived the Plaintiff of costs. Penny v. Wimbledon R.D.C. 1898 2 Q.B. 212; 1899 2 Q.B. 72. The Court of Appeal approved the Order made in Beardon's case because no tort had been proved against the Defendants who had not paid money into Court, and they were therefore entitled to their costs in that case, whereas in Penny's case, which was carried to trial, the tort was proved and therefore only the Defendant who had paid money into Court had successfully shielded himself against its consequences in costs.

Costs, however, are only one of the matters for consideration in the present problem. Assuming the publishers paid money into Court with a denial of liability and it were taken out, there would be no decision upon the issues as to whether there had been a libel and whether it had been justified. The Plaintiff's claim up to date would be satisfied as against all Defendants. In contemplation of law, however, each separate publication of a libel is a separate tort, and therefore a further publication after the money had been taken out and the action brought to an end would give rise to a fresh cause of action—at all events as against the Defendant who had paid in the money. What would be the position of the Defendants who had not paid in in the event of those Defendants obtaining an order against the Plaintiff for costs, is an extremely difficult problem. I think there is no doubt whatever that a fresh action could be brought in respect of further publications against the Defendant who had paid in the money and who would presumably have been made liable for all the Plaintiff's costs up to the date of his payment in. At all events in his case no plea or application founded on the result of the previous proceedings would be available.

No if Messrs. Constable were to pay money into Court in this case and it were taken out, they would be in a very difficult position with regard to the further issue of the book. Under their agreement I presume they are bound to publish so long as there is a market. On the other hand they would have no better answer to fresh proceedings in respect of further publication than they have now—indeed they might be in a worse position in the matter of damages if their plea of justification failed.

In these very difficult circumstances I do not think I can take the responsibility of advising Messrs. Constable to pay money into Court unless they were to do so with the consent of the Defendant Hamnett and upon the terms that they should be under no obligation to her to go on publishing.

Messrs. Constable will of course appreciate that publication of this book can only be resumed if the present proceedings result in a verdict for the Defendants. A verdict for the Plaintiff, even if only for a farthing damages, would leave them liable to further proceedings if they then continued to publish.

The Statement of Claim has now been amended. After consideration I think it is desirable to amend the Defence by admitting the innuendo now pleaded in order that the Plaintiff may be confined to the meaning put upon the words by the innuendo in paragraph 3 of the Amended Statement of Claim. I have settled the necessary amendment, which can be delivered under the provision to that effect contained in the Plaintiff's order for leave to amend. Having regard to the letter from the Plaintiff's Solicitors now with my papers I have spoken to the Plaintiff's Counsel informing him that I propose to amend the Defence.

As to a notice in mitigation of damages—This is a matter on which I should have wished to have had a word with he Counsel for the other Defendant, but have so far not succeeded in discussing the matter with him.

CECIL W. LILLEY

8th Nov. '33.

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