Defence in an action of libel or slander is a most important document, and should not be drafted hurriedly or on insufficient materials. Before settling it, counsel should be put in possession of all the facts. If there is any thought of a justification, the evidence by which it is proposed to support that plea should be submitted to counsel in full detail, and his opinion taken as to its sufficiency. Counsel should also be informed of all facts which might support a plea of privilege.

Amendment.

The defendant's counsel, on receiving the Statement of Claim, should first consider if it discloses any cause of action. If the words are not actionable per se, and no special damage is alleged, he should apply under Order XXV. r. 4, to have the action dismissed as being frivolous and vexatious. (Hubbuck & Sons v. Wilkinson, Haywood & Clark, (1899) 1 Q. B. 86; 68 L. J. Q. B. 34; 79 L. T. 429.) So, if the words set out are not defamatory in their ordinary signification, and there is no innuendo, or if the innuendo alleges a meaning which it is clear that the words cannot bear. So, again, if it appear on the Statement of Claim that the words were uttered on an occasion which is clearly absolutely privileged. (Gompas v. White, (1889) 6 Times L. R. 20.) Where the words complained of are not set out verbatim, an application should be made under Order XIX. r. 27. But in other cases, unless the defect is seriously embarrassing, it is better policy to leave it unamended; it is no part of the defendant's duty to reform the plaintiff's pleading. And be careful in drawing the Defence not to aid the defect in the claim in any way; the less said about that part of the pleading, the better; do not admit it; if need be, traverse it in so many words; but after such denial, avoid the whole topic if possible; leaving the plaintiff's counsel to explain it to the judge at the trial if he can.

Particulars before Defence.

But the more usual application at this stage is for particulars. (See Order XIX. rr. 7, 8.) If no particulars be given of a material allegation the plaintiff will be entitled at the trial to give evidence as to any fact which tends to support the allegation. (Hewson v. Cleeve, (1904) 2 Ir. R. 536.) The defendant therefore should try to bind the plaintiff down to some particular state of facts of which alone evidence may be offered at the trial.

It is now settled practice that the defendant is entitled to particulars of the times when, and the persons to whom the alleged slanders or libels were published, if such details are not given in the Statement of Claim. (Roselle v. Buchanan, 16 Q. B. D. 656; 55 L. J. Q. B. 376; 34 W. R. 488; extending the decision in Bradbury v. Cooper, 12 Q. B. D. 94; 53 L. J. Q. B. 558; 32 W. R. 32; 48 J. P. 198.) But an application for such particulars must be made promptly. (Gouraud v. Fitzgerald, 37 W. R. 265; 5 Times L. R. 80.) Particulars will not be ordered of the general allegation in the Statement of Claim that the words are published maliciously. (Order XIX. r. 22.)

It is no objection that the defendant must know already the facts for which he asks by way of particulars; he is entitled to know the case that is going to be made against him. So, too, it is no objection to an order being made for such particulars that the plaintiff may be thus indirectly compelled to disclose the names of his witnesses. "If the particulars are those that he ought to give, he cannot refuse to do so merely on the ground that his answer will disclose the names of the witnesses he proposes to call." (Per Lord Esher, M.R., in Zierenberg v. Labouchere, (1893) 2 Q. B. at p. 187; and see Humphries & Co. v. Taylor Drug Co., 39 Ch. D. 693; 37 W. R. 192; 59 L. T. 177; Bishop v. Bishop, (1901) P. 325; 70 L. J. P. 93; 85 L. T. 173.) And there is no distinction between actions of libel and of slander in this respect. But, of course, the plaintiff cannot be compelled to give the names of the persons passing in the street at the time the alleged slander was uttered. (Wingard v. Cox, W. N. 1876, p. 106.) Nor can a person libelled in a newspaper be expected to give the names of all who take the paper. Where the words were uttered in a public room, the plaintiff was ordered to give the best particulars he could of the names of the persons present at the time. (Williams v. Ramsdale, 36 W. R. 125.) So in an action for slander of title the plaintiff was ordered to give particulars of the occasions when the words were spoken and of the persons present on such occasions. (Roche v. Meyler, (1896) 2 Ir. R. 35.)

So, too, whenever any special damage is claimed, but not with sufficient detail, particulars will be ordered of the alleged damage. Thus, the plaintiff can be compelled to state the names of the customers who he alleges have ceased to deal with him, or of the friends who have ceased to show him hospitality, in consequence of the defendant's words. This is a very useful order; as if the plaintiff cannot give the names, he will not be allowed at the trial

to give any evidence in support of the allegation. (See Dimsdale v. Goodlake, (1876) 40 J. P. 792; and Precedents Nos. 16, 17, 23.) Particulars of general damage will never be ordered.

But no order will be made where the defendant does not really need the information to enable him to prepare his case for trial or where such an order would be oppressive. (See Duke v. Wisden, (1897) 77 L. T. 67; 13 Times L. R. 481; London and Northern Bank, Limited v. George Newnes, Limited, (1900) 16 Times L. R. 433.)

Defence.

The defendant in his Defence may traverse every material allegation in the Statement of Claim, so as to put the plaintiff to proof of his case. He may at the same time set up some affirmative case in answer to the claim, the burden of proving which will lie on himself. He may also object to the sufficiency of the claim in law. The defendant may also set up a counterclaim. All the defences to which we have referred, or any number of them, may be pleaded together in the same action without leave, although they appear inconsistent. Thus, in Restell and wife v. Steward, W. N. 1875, pp. 231, 232, Quain, J., held that a denial of publication and a justification could be pleaded together. In Stainbank v. Beckett, W. N. 1879, p. 203, the defendant pleaded that the alleged libel did not relate to the plaintiff, that it was a fair comment upon a matter of public interest, and also that it was true in fact; and the Court of Appeal held that the Defence was not embarrassing. A defendant may "raise by his Statement of Defence without leave as many distinct and separate, and therefore inconsistent, defences, as he may think proper." (Per Thesiger, L.J., in Berdan v. Greenwood, 3 Ex. D. 255; 47 L. J. Ex. 628; 26 W. R. 902; 39 L. T. 223.) There is only one exception to this rule. The defendant in an action of libel or slander may not pay money into Court, if he has placed on the record any plea which denies liability to the plaintiff. (Order XXII. r. 1.)

1. Traverses.

The defendant must deal specifically with each allegation in the Statement of Claim which he does not admit to be true. (Order XIX. r. 17.) Sometimes it is advisable for the defendant to traverse an allegation in the Statement of Claim so as to compel the plaintiff to call a particular witness. But as a rule he should admit every statement of fact which he does not intend to seriously dispute at the trial. At the same time, he must be careful how he

admits even the introductory paragraphs, which may appear immaterial; they were not inserted without some purpose. Every allegation of fact not denied specifically will be taken to be admitted. (Order XIX. r. 13.)

The following are the most usual traverses :

(i) "The defendant never spoke or published any of the words. set out in paragraph 2 of the Statement of Claim." The words "either falsely or maliciously "must not be added. (Belt v. Lawes, 51 L. J. Q. B. 359.) For the plea, as it stands without them, is a denial of the publication in fact; if the plaintiff prove publication, the law will presume it to have been false and malicious until the defendant proves either privilege or a justification; and both privilege and justification must be specially pleaded, not merely suggested by the addition of four words to a plea which really raises quite a different defence.

(ii) "The said words do not mean what is alleged in paragraph 2 of the Statement of Claim." This is a traverse of the innuendo. The plaintiff is sure to put the blackest construction on the words: hence the innuendo, if there be one, should always be traversed (except perhaps where the defendant pays money into court).

(iii) "The plaintiff did not, at the date of the publication, if any, of the said words, carry on the business of a butcher as alleged in paragraph 1 of the Statement of Claim"; or "The plaintiff was not at the date, &c., vicar of as alleged," or "was not then

a partner in the firm of A., B. & Co. as alleged." This is a traverse of the special character in which the plaintiff sues; and must always be specially pleaded. (Rules of Trinity Term, 1853, r. 16; Order XXI. r. 5.) If the defendant also wishes to raise at the trial the defence that the plaintiff's trade is illegal, this also must now be specially pleaded. (Manning v. Clement, 7 Bing. 362; 5 M. & P. 211, is no longer law on this point.)

(iv) The words did not refer to the plaintiff." (See R. S. C. App. E., s. 3, No. 2.) Or, if it be alleged that the words were spoken of the plaintiff in the way of his trade, office or profession, the traverse would run : "The defendant denies that he spoke or published any of the said words, with reference to the plaintiff in the way of his said trade (or office or profession of -) or at all."

(v) No denial or defence is necessary "as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted." (Order XXI. r. 4. And see Order XIX. r. 17.)

2. Objections in Point of Law.

The defendant may raise in his Defence any objection in point of law to the Statement of Claim. But he is not bound to do so; he may urge at the trial any point of law he likes, whether raised on the pleadings or not. It is only when the defendant desires to have any point of law set down for hearing, and disposed of before the trial under the latter part of rule 2 of Order XXV., that he must raise it in his pleading by an objection in point of law. And it is clearly worth his while so to raise it whenever the objection may substantially dispose of the whole action, or of any distinct cause of action therein; as in that case the Court may dismiss the action under rule 3 of the same Order (as was done in Mayor, &c., of Manchester v. Williams, (1891) 1 Q. B. 94; 60 L. J. Q. B. 23; 39 W. R. 302; 63 L. T. 805), and so save the parties the expense of fighting unnecessary issues of fact.

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A specimen of such an objection is given in the Rules of 1883, Appendix E., s. 3, No. 2:-" The defendant will object that the special damage stated is not sufficient in point of law to sustain this action." Similarly, if no special damage be alleged, the defendant may object "that the said words are not actionable without proof of special damage, and that none is alleged." Again, if the defendant desires to contend that the words cannot possibly be construed into a libel or slander, such a contention may rightly be stated as a point of law; for, if it be well founded the judge should withdraw the case from the jury. If words which are not defamatory are set out in the Statement of Claim and accompanied by an innuendo which purports to give them an actionable meaning, the defendant should first traverse the innuendo and may then proceed to object "that the said words are incapable of the alleged or of any other actionable meaning."

3. No Libel.

"The said words are no libel." This was held a good plea in Ireland before the Judicature Act, on the ground that it raised a question of fact for the jury, not a point of law for the judge. (Nixon v. Harvey, 8 Ir. C. L. Rep. 446.) And since then such a plea has been freely used in Ireland. (See Maguire v. Knox, Ir. R. 5 C. L. 408; Stannus v. Finlay, Ir. R. 8 C. L. 264; Cosgrave v. Trade Auxiliary Co., Ir. R. 8 C. L. 349; M'Loughlin v. Dwyer (1), Ir. R. 9 C. L. 170.) It is now in common use in England. It is often joined with a plea of fair comment thus: "The said words.