§ Mr. Deputy Speaker (Mr. Sydney Irving)
With this Amendment we may discuss Amendment No. 9, in page 2, 1883 line 32, leave out from 'of' to end of line 33.
§ Mr. Dewar
The House will be relieved to know that these Amendments, as far as I know, have nothing specifically to do with the law of Scotland and the matter is, perhaps, of slightly more general interest. It arises out of the point made by the hon. and learned Member for Northwich (Sir J. Foster) in Committee on 16th April, reported at col. 85 of the OFFICIAL REPORT.
Clause 4 will add a new Section 12A to the Defamation Act, 1952, the idea being—I think that the proposal is generally acceptable and this Clause has had the warmest welcome of all—that a defendant should be able to advance in mitigation evidence of other charges against the plaintiff. The difficulty, as see it, is that the new Section 12A would allow the defendant to advance evidence of other charges made at the same time which he did not ultimately intend to prove were true. It is felt that this might be generally prejudicial and somewhat unjust.
The effect of the Amendments would be to make the new subsection (1) read:Subject to the following provisions of this section, in any action for libel or slander the defendant may give evidence in mitigation of damages that, in addition to any charges contained in the words complained of in the action, other words containing other charges against the plaintiff published on the same occasion as the words complained of were true".The point here is the deletion of the words in paragraph (b),or one or more of them".which imply that the defendant could cite charges which were to be made but which he would not be in a position to prove. That implication is confirmed as the new Section 12A stands by subsection (2), which provides that the requirement of due notice is not confined to the charges to be proved under subsection (1)(b) but refers generally to any matter on which the defendant may give evidence under subsection (1).
It is undesirable that there should be any encouragement given to a defendant to bring in evidence other than that which he can prove to be true. An example probably affords the easiest way to make 1884 the point clear. The defendant originally stated that the plaintiff had committed adultery with X, that he had conducted himself in an improper or indelicate way towards women over a period of time, and that he had lived in sin for a considerable time with Y.
The truth is that the plaintiff had been living in a union out of wedlock with a woman, but he had not committed adultery with X and there was no truth in that allegation. He might then bring defamation proceedings, presumably, on the ground that he had not committed adultery in those circumstances. But, as he would have great difficulty in disproving the more general assertion about his conduct towards women, he might be advised to ignore that and not bring it into the action.
Under the new Section as drafted, however, when defending himself against the charge of defamation for his allegation of adultery with a specific person, the defendant might not only be able to advance the fact that the plaintiff had been living out of wedlock with a woman, but he could bring in a more generalised allegation of conduct over a period of time towards women.
It seems to me that that could be unfortunate. It might well be that the defendant, although he was bringing it in in the form of a plea of mitigation, would be in no position to substantiate his more general charges; they might be utterly without foundation. However, as the new section is drafted, he could drag them in and then, once they were in, they might well prejudice the jury's attitude towards damages in making its final decision.
No doubt, the judge would point out that the defendant had not proved the truth of the generalised charge, and he would say that under subsection (1) as now drafted the defendant was entitled to give evidence on that statement and the plaintiff had not claimed in his action that it was untrue. However, in spite of that, the very circumstances in which the matter was mentioned and, so to speak, paraded could create the danger of a general build-up of prejudice in the jury's mind in coming to its final decision.
As I say, the general idea of Clause 4 is widely welcomed, namely, that it 1885 should be open to a defendant to plead in mitigation other charges which have substance but which have been excluded from the main body of the action because of careful and wise selection of the grounds in the legal fight by the plaintiff. On Second Reading, the Attorney-General gave the example of an accusation against a jockey that he pulled his horse in 10 races whereas, in fact, nine of the charges were true and the tenth was not, the slander action being taken on the tenth.
To tidy up this situation and to strengthen the position of a defendant in this situation when he has been caught on narrow grounds, and to ensure that he can bring in wider issues or charges made at the same time which are true, the Clause has been framed as it has. But it seems to me proper that we should tighten it a little further and enforce upon the defendant, when he brings in the charges in mitigation, that he limit them to those which are true and which he is prepared to substantiate in evidence.
That is the general intention, and I hope that it commends itself to the House.
§ 1.15 p.m.
§ The Attorney-General
I listened with care to the interesting argument advanced by my hon. Friend the Member for Aberdeen, South (Mr. Dewar). The new Section 12A which Clause 4 inserts into the Defamation Act, 1952, was criticised by the hon. and learned Member for Northwich (Sir J. Foster) in Committee, and it is criticised now by my hon. Friend, on the ground that subsection (1) appears to allow the defendant to mitigate his damages by proving that other charges, or one or more of them, were true.
It is the wordsor one or more of themwhich cause the difficulty. Subsection (2) requires the defendant, as a condition of giving evidence that these other charges were true, to give notice of them at some previous stage to be specified by rules.
What is criticised in the present draft is that it is wrong to allow the defendant to give notice of a number of other charges and yet allow him to mitigate 1886 his damages if he proves the truth of some only of them. This, it is said, will enable the defendant to level at the plaintiff a number of charges on which he has no intention to rely, thereby effectively throwing some additional mud at the plaintiff. This is what worries my hon. Friend.
The answer to that criticism is that a defendant who intentionally levels other charges against the plaintiff which he knows he has little chance of substantiating will be not mitigating but aggravating his damages. On the other hand, it would defeat the whole purpose of the new Section if the defendant's attempt to mitigate his damages failed totally merely because he did not succeed in establishing the truth of one, perhaps the least serious, of the other charges of which he had given notice.
In Committee, I gave the example of a jockey alleged to have pulled his horse in 10 races, of which only one allegation is complained of. If the defendant gives notice of intention to prove the other nine in mitigation of damages, he should not be defeated in this attempt merely because, when the time comes, he succeeds in proving only eight of the nine allegations, although his failure to prove the ninth may obviously result in the quality of the mitigation being less effective.
If one considers the case of a film, for instance, one sees the thought which lies behind the draft as it stands. Let us suppose that the matter complained of is a libel in a film. The defendant wants to rely on other matter contained in the same film. It could be assumed that he would put in evidence the whole film, even though the film might contain numerous charges against the plaintiff, and the defendant, although able to adduce evidence as to the truth of some of those charges, is not able to adduce any evidence as to the proof of the remainder of them.
Apparently, what is proposed in the Amendment is that in these circumstances the defendant cannot put the whole film in evidence. He would have to try to produce in evidence an edited version consisting of those bits of film which contained the charges in respect of which he is able to give evidence as to their truth. I wonder whether it will always, or even usually, be practicable to do this.
1887 There are, therefore, difficulties arising from the proposed Amendments, but, if the Bill makes further progress, I undertake to look at the points made by my hon. Friend.
§ Amendment, by leave, withdrawn.