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Joint Opinion from Malcolm Hilbery & Cecil W. Lilley [Waterhouse & Co., Solicitors for Constable & Co.]
[Correspondence concerning Constable & Co.'s preparation for the appeal to 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.
15th May 1934
CROWLEY
v.
CONSTABLE & COMPANY LTD & OTHERS
JOINT OPINION.
(1). For the reasons given in consultation when we examined each of the grounds of appeal in detail, we are of opinion that the Plaintiff's appeal ought not to succeed.
(2). We think that an application for security for costs of the appeal should be made, but the material which is at present before us by no means concludes the question of the Plaintiff's ability to pay the costs of the appeal. In our view the Court will require more definite evidence of the Plaintiff's inability to pay than is provided by the three matters pointing to the Plaintiff's impecuniosity which are at present known to the Defendants' advisers. In our view before the application for security is made the bill of costs should be taxed and application should be made for the payment of it so that either the costs below are obtained or the non-payment of them can be proved before the Court of Appeal on the application for security. This non-payment is always accepted as sufficient ground for making an order.
It appears to us there can be no harm, however, in writing a letter alleging the complete impecuniosity of the Plaintiff and stating some of the grounds for making that allegation and asking the Plaintiff's Solicitors whether they agree to give security and if so what security they offer. If they agree it is a case for security and they offer some, though not enough, a motion can be launched without going to the expense of taxation, in order that the Court may decide the amount of the security, and in those circumstances as the only question would be one of amount there would be no need to incur the expense of taxation.
(3). The Defendants can scarcely move in the matter of the letters taken from Betty May. They are the property of Betty May and it is for her and her Solicitors to move in the matter. It would obviously be very valuable if they did move and actively endeavoured to find out how and when the letters came to the possession of Crowley and his Solicitors.
(Signed)
MALCOLM HILBERY
CECIL W. LILLEY
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