of authority for the application, but it was shown on the other side that such discussion was not probable, as it was not contemplated by the programme of proceedings of meeting. Manisty J., (who with Grantham, J., heard the case) observed that if the defendant did make the pending action a theme for any discussion he would be liable to serious consequences; but, reserving the question of costs until the trial of libel action, the Court did not think a sufficiently strong case for an injunction had been made out.

In Hayward & Co. v. Hayward & Sons (34 Ch. D. 198), where the defendants published a circular reflecting upon the plaintiffs, and misrepresenting the effect of a judgment obtained to restrain them from trading under the same name, it was held that the circular contained an untrue statement of the judgment, that it was a libel injurious to plaintiffs and published maliciously, and an injunction was granted restraining further publication; but as there was no evidence of damage beyond the plaintiffs' affidavit that the circular was calculated to injure them, and as action was not brought till three months after the circular came under their notice, only 51. damages were awarded.

In case of Stanley v. Troup (Ch. Div.) before North, J., defendant was restrained from publishing until six months after the official account any account of the Stanley Expedition (T. L. R. July 1889, p. 635).

CONTEMPT OF COURT-WHAT CONSTITUTES IT AND HOW

IT IS TREATED.

The Courts very properly visit any attempts on the part of newspapers or writers to influence or prejudically criticise pending proceedings, and views with disfavour editorial comments upon any matter un

CRITICISING PENDING CASES.

47

determined (In re Ledger, Dallas v. Ledger, 52 J. P. 328).

Chitty, J., in the case of the Metropolitan Music Hall Co. v. Lake and others (which was an effort to commit the editor and printer of the Financial News for contempt of Court for publishing an article said to be calculated to interfere with the free course of justice), decided to refuse the motion as not being a bona fide one, and because the publication was not likely to influence the decision of the Court. The learned judge took occasion to review the doctrine of scienter, and as to whether and how far a person might be held guilty of contempt of Court in commenting upon a pending case, whether he knew the case was so pending or not. "If what was published reflected upon the applicant, and was calculated to operate prejudicially to his action, he was entitled to come into Court and say whether what was said was or was not true and interfered with his rights as a litigant, and to sue protection of the Court. Of course, if it were a mere libel, he would be entitled to his remedy in another way." In the case before him, the learned judge ruled, however, that the article was not open to that objection, and it would be a strained interpretation of the law to hold that it could affect the applicant's rights before a jury (5 T. L. R.).

In Brodribb v. Brodribb (56 L. J. 672), the defendant after the service of a citation upon him as co-respondent in a divorce suit, forthwith caused to be inserted in the local newspaper an identical communication denying the statements in the petition, and offering a reward for information concerning them. Such action was held to be a contempt of Court. And where on the hearing of a petition one solicitor characteristically called another abusive names and spoke slanderous words of his conduct in connec

tion with proceedings, and even shook his fist at him, such conduct and language were held an interference with the administration of justice and a contempt of Court for which the judge had power to commit (In re Johnson, 20 Q. B. D. 68; Ex parte Wilton, 1 Dowe, N. S. 805, discussed). A writ of attachment was issued against a defendant in a divorce suit for causing an advertisement to appear calculated to prejudice the petitioner's case. This was a notice seeking information of the birth of a child" probably not registered" (Butler v. Butler, 13 P. D. 73, 57 L. J. P. 16). From these typical cases it is evident that the Courts very properly exercise a strict and jealous control over any attempts at criticising or commenting upon pending proceedings, and this is a power no lover of free and impartial justice would ever wish to see curtailed, restricted or cut down.

Mr. F. H. Fisher, B.L., Middle Temple, sends the editor the following note of a case decided May 20, 1889, in the Queen's Bench Division:-" The case of Hunt v. Clarke, In re O'Malley, the publisher of The Star newspaper, in the Queen's Bench Division, is of interest to newspaper proprietors and editors. A paragraph had been inserted in The Star expanding an entry in the Cause List, and it was alleged that this constituted a contempt of Court. The paragraph was headed To Investors and Others,' and concluded thus: 'Mourners over the Moldacot fiasco are likely to hear a little inside history of the business.' The tendency to gag the Press shown in recent decisions seemed to favour the idea that such a motion would succeed, but we are glad to find Mr. Justice Mathew remarking that he could not divest himself of the impression that the court on this occasion had been made the victim of a practical joke.'

SOME CASES OF CONTEMPT OF COURT. 49

As Mr. Justice Grantham concurred, the application was dismissed with costs. Nevertheless, The Star will have had to pay something considerable for vindicating the liberty of the Press, as every one who has been into Court knows but too well." As will be seen by the report of the case appearing in appendix, this ruling was practically reversed on appeal-the Court of Appeal holding that such remarks were reprehensible.

These cases will fairly illustrate the principle regulating such actions. In the Plate Co. v. Farquharson (17 Ch. D. R.) the Court of Appeal upheld the dismissal of an action of a similar character, the Master of the Rolls holding that such motions ought to be discouraged: as "unless the publication really interferes with the course of justice the Courts ought not to interfere." In re Cheltenham Railway Co., a publication concerning a pending case was held a contempt; and in Daw v. Eley (7 L. R. Ex.) and Tichborne v. Mostyn (7 L. R. Ex.) a similar ruling was adopted where also remarks were made in a newspaper calculated to prejudice the trial. In an unreported case of R. v. Gray, the late Mr. E: Dwyer Gray, M.P., was sentenced by Lawson, J., in 1882, to fine and imprisonment for publishing in the Freeman's Journal a letter commenting upon the misconduct of a jury in a capital offence, although the facts commented upon were undisputed.

E

CHAPTER V.

WHAT IS FAIR COMMENT?

A MATTER of considerable importance arising out of the Libel Act relates to the question of what remarks are entitled to the privilege of exemption under the immunity recognised as "fair comment." This is a limit very difficult to determine, and no hard-and-fast line can be laid down. The tendency of judicial decisions and of the verdicts of juries who are the ultimate judges of the question seems to recognise that a writer is entitled to comment upon all public questions and the conduct of public men as such, so long as his comments are fair, honest, and written with a due regard to what truth, decency and justice dictate.

Mr. Justice Stephen in his Draft Digest defines the doctrine of fair comment in the following words, which are expressive of the principle which should regulate that very delicate dogma of journalistic rights:

"A fair comment is a comment which is either true or which if false expresses the real opinion of its author (as to the existence of a matter of fact or otherwise), such opinion having been formed with a reasonable degree of care and on reasonable grounds" (Digest, art. 247, p. 189).

This definition applies to either civil or criminal libels, and accurately represents the tendency and principle of judicial decisions upon this point. It has been held that a fair and honest discussion of or comment upon a matter of public interest is in point of