Broome v Cassell
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''Broome v Cassell & Co Ltd'' was an English libel case in 1970 which raised important legal issues concerning
exemplary damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
and the role of
precedent A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common-law legal systems place great valu ...
s in English law. It is also known for the involvement of the controversial writer
David Irving David John Cawdell Irving (born 24 March 1938) is an English author and Holocaust denier who has written on the military and political history of World War II, with a focus on Nazi Germany. His works include ''The Destruction of Dresden'' (19 ...
.
Captain Captain is a title, an appellative for the commanding officer of a military unit; the supreme leader of a navy ship, merchant ship, aeroplane, spacecraft, or other vessel; or the commander of a port, fire or police department, election precinct, e ...
Jack Broome Captain John Egerton Broome DSC (23 February 1901 – 19 April 1985), also known as Jackie Broome, was a Royal Navy officer who served in both World Wars. He commanded the escort group of the ill-fated Arctic Convoy PQ 17 in 1942. After the Sec ...
, a distinguished retired
Royal Navy The Royal Navy (RN) is the United Kingdom's naval warfare force. Although warships were used by English and Scottish kings from the early medieval period, the first major maritime engagements were fought in the Hundred Years' War against F ...
officer, sued Cassell Ltd and
David Irving David John Cawdell Irving (born 24 March 1938) is an English author and Holocaust denier who has written on the military and political history of World War II, with a focus on Nazi Germany. His works include ''The Destruction of Dresden'' (19 ...
for libel for publishing a book by Irving on the destruction of
Convoy PQ 17 PQ 17 was the code name for an Allied Arctic convoy during the Second World War. On 27 June 1942, the ships sailed from Hvalfjörður, Iceland, for the port of Arkhangelsk in the Soviet Union. The convoy was located by German forces on 1 July, aft ...
in 1942. The book alleged that the destruction of the convoy was in large part due to Broome's conduct, even though Broome's superiors had absolved him of any blame at the time. After a three-week trial in the High Court, a jury awarded Broome £40,000 in damages, including £25,000 in
exemplary damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
(also known as punitive damages), the highest award for libel made in England up to that time. The defendants appealed to the Court of Appeal in 1971 against the size of the jury's award. The Court of Appeal upheld the award, but also used the opportunity to criticise the 1964 House of Lords decision ''
Rookes v Barnard ''Rookes v Barnard'' 964 AC 1129 is a UK labour law and English tort law case and the leading case in English law on punitive damages and was a turning point in judicial activism against trade unions. The case was almost immediately reversed b ...
'', which severely limited the circumstances under which exemplary damages could be awarded. Arguing that the Lords' decision had been made ''
per incuriam ''Per incuriam'', literally translated as "through lack of care" is a device within the common law system of judicial precedent. A finding of ''per incuriam'' means that a previous court judgment has failed to pay attention to relevant statutory pr ...
'',
Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...
, the
Master of the Rolls The Keeper or Master of the Rolls and Records of the Chancery of England, known as the Master of the Rolls, is the President of the Court of Appeal (England and Wales)#Civil Division, Civil Division of the Court of Appeal of England and Wales a ...
, suggested that trial judges should disregard ''Rookes v Barnard'' and direct juries in accordance with the law as understood previously. On a further appeal, the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
in 1972 also upheld the jury award, but the
Lord Chancellor The lord chancellor, formally the lord high chancellor of Great Britain, is the highest-ranking traditional minister among the Great Officers of State in Scotland and England in the United Kingdom, nominally outranking the prime minister. The ...
, Lord Hailsham of St Marylebone severely rebuked the Court of Appeal for directing judges of first instance to ignore ''Rookes v Barnard'', which he considered as being incompatible with the hierarchical system of English courts. Lord Hailsham's speech in ''Broome v Cassell'' is cited today in relation to the hierarchical nature of the English legal system and for lower courts' duty in following the decision of higher courts. The parts of ''Rookes v Barnard'' concerning exemplary damages remains good law, although they have been rejected in most leading Commonwealth jurisdictions. Irving continued to provoke controversy, later becoming a prominent
Holocaust denier Holocaust denial is an antisemitic conspiracy theory that falsely asserts that the Nazi genocide of Jews, known as the Holocaust, is a myth, fabrication, or exaggeration. Holocaust deniers make one or more of the following false statements: * ...
. He was later involved in ''
Irving v Penguin Books Ltd ''David Irving v Penguin Books and Deborah Lipstadt'' is a case in English law against American historian Deborah Lipstadt and her British publisher Penguin Books, filed in the High Court of Justice by the British author David Irving in 1996, ...
'', another high-profile libel suit.


Historical background

Convoy PQ 17 PQ 17 was the code name for an Allied Arctic convoy during the Second World War. On 27 June 1942, the ships sailed from Hvalfjörður, Iceland, for the port of Arkhangelsk in the Soviet Union. The convoy was located by German forces on 1 July, aft ...
was a 1942 Allied
Arctic convoy The Arctic convoys of World War II were oceangoing convoys which sailed from the United Kingdom, Iceland, and North America to northern ports in the Soviet Union – primarily Arkhangelsk (Archangel) and Murmansk in Russia. There were 78 convoys ...
carrying supplies destined for the Soviet Union. It comprised 34 merchant ships, four auxiliary ships, and an escort of 21 warships. Close escort was provided by the First Escort Group, under the command of
Commander Commander (commonly abbreviated as Cmdr.) is a common naval officer rank. Commander is also used as a rank or title in other formal organizations, including several police forces. In several countries this naval rank is termed frigate captain. ...
J. E. Broome. In addition, the First Cruiser Squadron, under the command
Rear Admiral Rear admiral is a senior naval flag officer rank, equivalent to a major general and air vice marshal and above that of a commodore and captain, but below that of a vice admiral. It is regarded as a two star "admiral" rank. It is often regarde ...
L. H. K. Hamilton, as well as a heavy covering force under the command of
Admiral Admiral is one of the highest ranks in some navies. In the Commonwealth nations and the United States, a "full" admiral is equivalent to a "full" general in the army or the air force, and is above vice admiral and below admiral of the fleet, ...
Sir John Tovey Admiral of the Fleet John Cronyn Tovey, 1st Baron Tovey, (7 March 1885 – 12 January 1971), sometimes known as Jack Tovey, was a Royal Navy officer. During the First World War he commanded the destroyer at the Battle of Jutland and then co ...
, provided further cover from a distance. The convoy sailed on 27 June 1942. On 4 July, the
First Sea Lord The First Sea Lord and Chief of the Naval Staff (1SL/CNS) is the military head of the Royal Navy and Naval Service of the United Kingdom. The First Sea Lord is usually the highest ranking and most senior admiral to serve in the British Armed ...
, Admiral of the Fleet
Sir Dudley Pound Admiral of the Fleet Sir Alfred Dudley Pickman Rogers Pound, (29 August 1877 – 21 October 1943) was a British senior officer of the Royal Navy. He served in the First World War as a battleship commander, taking part in the Battle of Jutland ...
, ordered the convoy to scatter, due to fears that it was about to be attacked by German surface vessels, including the battleship ''Tirpitz''. Broome interpreted the order to scatter as indicating that an attack by ''Tirpitz'' was imminent. Preparing for battle, he collected the destroyers under his command and attached them to the Hamilton's First Cruiser Squadron. It later transpired that ''Tirpitz'' and its battlegroup was not in the convoy's vicinity: their planned sortie against the convoy had been cancelled, and the battlegroup had returned to port. Pound had in fact received an intelligence assessment from Paymaster Commander
Norman Denning Vice-Admiral Sir Norman Egbert Denning, (19 November 1904 – 27 December 1979) was a Royal Naval and Intelligence Officer at the Admiralty and Defence Intelligence Staff who served as Director of Naval Planning from 1945 to 1956, Director of ...
(whose brother Lord Denning sat on Irving and Cassell's appeals in 1971) that the battlegroup was unlikely to attack, but disregarded the advice. The convoy's merchant ships, left without protection after the scattering of the convoy, became easy targets for
Luftwaffe The ''Luftwaffe'' () was the aerial-warfare branch of the German ''Wehrmacht'' before and during World War II. Germany's military air arms during World War I, the ''Luftstreitkräfte'' of the Imperial Army and the '' Marine-Fliegerabtei ...
aeroplanes and
U-boat U-boats were naval submarines operated by Germany, particularly in the First and Second World Wars. Although at times they were efficient fleet weapons against enemy naval warships, they were most effectively used in an economic warfare role ...
s. Of the 35 merchant ships, 24 were sunk, with heavy loss of life and supplies. The loss was compounded by the distrust it created among Allies. The Soviet Union did not believe so many ships could be lost in one convoy and openly accused the Western Allies of lying. Despite the help provided by the material delivered, PQ 17 actually worsened Soviet-Allied relations over the short term, with the Soviets never acknowledging the efforts of Allied merchant seaman or sailors. US Admiral
Ernest King Ernest Joseph King (23 November 1878 – 25 June 1956) was an American naval officer who served as Commander in Chief, United States Fleet (COMINCH) and Chief of Naval Operations (CNO) during World War II. As COMINCH-CNO, he directed the U ...
, already known to distrust the British, was furious with what he perceived as Admiral Pound's bungling and promptly withdrew TF 39, sending it to the
Pacific The Pacific Ocean is the largest and deepest of Earth's five oceanic divisions. It extends from the Arctic Ocean in the north to the Southern Ocean (or, depending on definition, to Antarctica) in the south, and is bounded by the continen ...
. He hesitated to conduct further joint operations under British command. US Navy Admiral Dan Gallery, who was serving in Iceland at that time, called PQ 17 "a shameful page in naval history". Broome, a relatively junior officer obeying orders from the Admiralty, was not blamed by his superiors for his actions. Admiral
Sir John Tovey Admiral of the Fleet John Cronyn Tovey, 1st Baron Tovey, (7 March 1885 – 12 January 1971), sometimes known as Jack Tovey, was a Royal Navy officer. During the First World War he commanded the destroyer at the Battle of Jutland and then co ...
reported that:
I do not consider that the commanding officer of the was in any way to blame for the subsequent heavy losses. From the signals which he had received, he deduced, quite reasonably, that surface action was imminent: and was correct in his decision to concentrate his destroyers and join the rear-admiral commanding first cruiser squadron.
Broome was subsequently promoted to
captain Captain is a title, an appellative for the commanding officer of a military unit; the supreme leader of a navy ship, merchant ship, aeroplane, spacecraft, or other vessel; or the commander of a port, fire or police department, election precinct, e ...
and received the
Distinguished Service Cross The Distinguished Service Cross (D.S.C.) is a military decoration for courage. Different versions exist for different countries. *Distinguished Service Cross (Australia) The Distinguished Service Cross (DSC) is a military decoration awarded to ...
. He received several major commands before retiring from naval service in 1947. He then became a writer and illustrator.


''The Destruction of Convoy PQ-17''

In 1968, the British author
David Irving David John Cawdell Irving (born 24 March 1938) is an English author and Holocaust denier who has written on the military and political history of World War II, with a focus on Nazi Germany. His works include ''The Destruction of Dresden'' (19 ...
finished a manuscript on the destruction of Convoy PQ 17. Originally titled ''The Knight's Move'', it contained several attacks on Broome's conduct during the operation, and generally blamed him for the destruction of the convoy. In particular, it accused Broome of having disobeyed instructions given by Rear-Admiral Hamilton, and had taken the convoy too close to the Norwegian coast, thus exposing it to attacks from land-based ''
Luftwaffe The ''Luftwaffe'' () was the aerial-warfare branch of the German ''Wehrmacht'' before and during World War II. Germany's military air arms during World War I, the ''Luftstreitkräfte'' of the Imperial Army and the '' Marine-Fliegerabtei ...
'' aeroplanes. Furthermore, it accused Broome of having misunderstood the Admiralty's signals, of deserting the convoy because of cowardice, and of not caring about the fate of the merchant ships under his protection. In October 1966, Irving submitted the manuscript to his publishers, William Kimber & Co Ltd, who in turn sent the manuscript for review to Captain Stephen Roskill, formerly the official historian of the Royal Navy. Roskill replied that "this book reeks of defamation and any publisher should be very cautious before issuing it." At the same time, Irving sent the manuscript to Captain
John Litchfield USS ''Litchfield'' (DD-336/AG-95) was a in the United States Navy following World War I. Namesake John R. Litchfield was born on 7 March 1899 at Flanagan, Illinois. He was a Navy pharmacist's mate serving with the 6th Marine Regiment. He was k ...
(who had been present at the time) and to Donald McLachlan. Both men rejected Irving's attacks on Broome and condemned his conclusions. Irving also sent the manuscript to Broome, who reacted angrily and threatened legal action. In November 1966, William Kimber told Irving that they were not prepared to publish the manuscript. Irving then took the manuscript to Cassell in December 1966. In March the following year, Cassell agreed to publish the manuscript in book form, despite Broome's threats. The title was changed to ''The Destruction of Convoy PQ-17''. The publishing contract contained an indemnity clause in which Irving undertook to indemnify Cassell if the book was found to be libellous. Upon hearing of the book's impending publication, Broome wrote to Cassell, who assured him that major changes had been made to the original manuscript, which was not the case. In early 1968, Cassell issued 60 proof copies of the book, along with an advertisement, but stopped the publication in February 1968. In March 1968, Broome issued a writ for libel against Cassel and Irving in respect of the proof copies. In June, the defendants entered pleas of justification and
fair comment Fair comment is a legal term for a common law defense in defamation cases ( libel or slander). It is referred to as honest comment in some countries. United States In the United States, the traditional privilege of "fair comment" is seen as a pr ...
. In August 1968, Cassell again changed its mind, and issued the book in hardcover. Broome issued another writ for libel. The two actions were consolidated and was listed for trial in January 1970. Two days before the first hearing, Cassell issued a paperback edition of the book, possibly in anticipation of the publicity the trial would bring.


High Court

The trial on the consolidated action opened in the
Queen's Bench Division The King's Bench Division (or Queen's Bench Division when the monarch is female) of the High Court of Justice deals with a wide range of common law cases and has supervisory responsibility over certain lower courts. It hears appeals on point ...
of the
High Court of Justice The High Court of Justice in London, known properly as His Majesty's High Court of Justice in England, together with the Court of Appeal of England and Wales, Court of Appeal and the Crown Court, are the Courts of England and Wales, Senior Cou ...
on January 26, 1970 before Mr Justice Lawton and a jury. David Hirst QC represented Broome, while Colin Duncan QC appeared for Irving and Michael Kempster QC represented Cassell. On January 28, Broome entered the witness box, giving evidence over several days. and was cross-examined. Vice-Admiral Sir William O'Brien, Vice-Admiral Sir John Hayes, Admiral Sir John Frewen, and Vice-Admiral Sir John Eaton, all gave evidence for Broome. Basil Elliott, a policeman who had been a signalman on Broome's ship at the time, gave evidence for him after learning of the trial from a newspaper report. William Kimber, Stephen Roskill, and
John Litchfield USS ''Litchfield'' (DD-336/AG-95) was a in the United States Navy following World War I. Namesake John R. Litchfield was born on 7 March 1899 at Flanagan, Illinois. He was a Navy pharmacist's mate serving with the 6th Marine Regiment. He was k ...
also gave evidence: a film taken by Litchfield hours after the convoy's scattering was shown in court to rebut Irving's claim that Broome was "a broken man" after the convoy scattered. On 10 February, the plaintiff rested his case; the defendants declined to call any evidence or witnesses. In his final submissions, Hirst accused the defendants of "effrontery" in maintaining that the words complained of were true in the face of the evidence. Michael Kempster, for Cassell, submitted that historians were entitled to paint pictures "warts and all", and maintained that the words complained of were both not defamatory and substantially true. On 16 February, Lawton J summed up and charged the jury; he instructed the jury that they could award exemplary damages if they found that Irving knowingly lied for profit (the second ground in ''Rookes v Barnard''). However, he cautioned the jury against awarding exemplary damages simply because they think that "he rvingis not a very attractive young man". On 17 February, after five hours of deliberations, the jury returned a verdict for Broome. It awarded him £1,000 in
compensatory damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
for the publication of the 60 proof copies, £14,000 in compensatory damages for the publication of the hardback edition of the book, and £25,000 by way of
exemplary damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
, against both Irving and Cassell Ltd. The total, £40,000 in damages, was the highest award for libel in England up to that time. The record would not be broken until 1987, when
Jeffrey Archer Jeffrey Howard Archer, Baron Archer of Weston-super-Mare (born 15 April 1940) is an English novelist, life peer, convicted criminal, and former politician. Before becoming an author, Archer was a Member of Parliament (1969–1974), but did not ...
was awarded £500,000 against the '' Daily Star.'' Outside of the courtroom, Broome and Irving shook hands.


Court of Appeal

Irving and Cassell appealed to the Court of Appeal, where a court constituted of
Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...
MR, Lord Justice Salmon and Lord Justice Phillimore heard the appeal over two weeks in February 1971. Irving appealed against the amount of both the compensatory and exemplary damages, while Cassell only appealed against the amount of exemplary damages. The appellants argued that on the evidence presented at trial, their conduct did not fall within Lord Devlin's second category as set out in ''Rookes v Barnard'', and thus no exemplary damages could be awarded.


Exemplary damages and ''Rookes v Barnard''

The issue of
exemplary damages Punitive damages, or exemplary damages, are damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit. ...
, also known as punitive damages, has long been controversial in English law. It was criticised on the ground that it confused civil and criminal justice: the former's purpose is to compensate and to restore, while the latter's purpose was to punish and to deter. However, compensatory damages were a form of punishment, but one which was administered through civil justice. Defendants in civil cases were liable to be punished through exemplary damages, without the benefit of the safeguards that exist in criminal courts, such as the heightened burden of proof. In ''
Rookes v Barnard ''Rookes v Barnard'' 964 AC 1129 is a UK labour law and English tort law case and the leading case in English law on punitive damages and was a turning point in judicial activism against trade unions. The case was almost immediately reversed b ...
'' (1964),
Lord Devlin Patrick Arthur Devlin, Baron Devlin, PC, FBA (25 November 1905 – 9 August 1992) was a British judge and legal philosopher. The second-youngest English High Court judge in the 20th century, he served as a Lord of Appeal in Ordinary fro ...
severely limited the circumstances under which exemplary damages could be awarded. However, he declined to abolish exemplary damages entirely, because there were precedents for awarding them, and because there were at least two statutes which mentioned them by name. According to Devlin, they could be awarded in cases: # of oppressive, arbitrary or unconstitutional acts by government servants; # where the defendant's conduct had been calculated by him to make a profit for himself which might well exceed the compensation payable to the plaintiff; # where expressly authorised by statute. In subsequent years, ''Rookes v Barnard'' came under criticism from many quarters. Its approach was rejected by the
High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...
, the
Supreme Court of Canada The Supreme Court of Canada (SCC; french: Cour suprême du Canada, CSC) is the Supreme court, highest court in the Court system of Canada, judicial system of Canada. It comprises List of Justices of the Supreme Court of Canada, nine justices, wh ...
, and the
Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...
(later renamed High Court) of New Zealand. The
Judicial Committee of the Privy Council The Judicial Committee of the Privy Council (JCPC) is the highest court of appeal for the Crown Dependencies, the British Overseas Territories, some Commonwealth countries and a few institutions in the United Kingdom. Established on 14 Augus ...
later endorsed the Australian High Court's rejection of ''Rookes v Barnard''.


Judgment of the Court of Appeal

On March 4, 1971, the Court of Appeal unanimously dismissed the appeals. The three judges all concluded that the defendants' conduct fell into Lord Devlin's second category in ''Rookes v Barnard'', and that therefore the jury was entitled to award exemplary damages. However, the judges also used the opportunity to attack the House of Lords' decision in ''Rookes v Barnard''.
Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 when ...
, who gave the main judgment, began by noting that both sides in ''Rookes v Barnard'' accepted that juries could award exemplary damages for libel. Yet
when the House came to deliver their speeches, Lord Devlin threw over all that we ever knew about exemplary damages. He knocked down the common law as it had existed for centuries. He laid down a new doctrine about exemplary damages. He said ..that they could only be awarded in three very limited categories, but in no other category: and all the other lords agreed with him.
After noting that various Commonwealth courts have rejected Lord Devlin's approach, Denning said:
This wholesale condemnation justifies us, I think, in examining this new doctrine for ourselves: and I make so bold as to say that it should not be followed any longer in this country. I say this primarily because the common law of England on this subject was so well settled before 1964 – and on such sound and secure foundations — that it was not open to the House of Lords to overthrow it. It could only be done by the legislature.
Denning criticised Devlin's "new doctrine" as "hopelessly illogical and inconsistent.". Of his first category, Denning argued " her people can be just as oppressive and arbitrary as the servants of the government" and that juries should be able to award exemplary damages for oppressive acts "no matter whether he
he defendant He or HE may refer to: Language * He (pronoun), an English pronoun * He (kana), the romanization of the Japanese kana へ * He (letter), the fifth letter of many Semitic alphabets * He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
is a servant of the government or not." Of the second category, Denning said it was not obvious whether a man who committed libel for profit was more worthy of punishment than a man who committed libel whatever it cost him. Denning concluded that "if ever there was a decision of the House of Lords given
per incuriam ''Per incuriam'', literally translated as "through lack of care" is a device within the common law system of judicial precedent. A finding of ''per incuriam'' means that a previous court judgment has failed to pay attention to relevant statutory pr ...
, this was it". Finally, Denning said that:
the difficulties presented by ''Rookes v. Barnard'' are so great that the judges should direct the juries in accordance with the law as it was understood before ''Rookes v. Barnard''.
Salmon Salmon () is the common name for several list of commercially important fish species, commercially important species of euryhaline ray-finned fish from the family (biology), family Salmonidae, which are native to tributary, tributaries of the ...
and
Phillimore Phillimore is the surname of: People: * Augustus Phillimore (1822–1897), Royal Navy admiral * Claud Phillimore, 4th Baron Phillimore (1911–1994), English architect *Egerton Phillimore (1856–1937), British scholar of Welsh literature and lang ...
LJJ delivered separate judgments agreeing with Lord Denning.


House of Lords

An appeal was lodged to the
House of Lords The House of Lords, also known as the House of Peers, is the Bicameralism, upper house of the Parliament of the United Kingdom. Membership is by Life peer, appointment, Hereditary peer, heredity or Lords Spiritual, official function. Like the ...
. A panel constituted of Lord Hailsham of St Marylebone LC, Lord Reid,
Lord Morris of Borth-y-Gest John William Morris, Baron Morris of Borth-y-Gest, (11 September 1896 – 9 June 1979) was a judge in England and Wales. He was a Law Lord from 1960 to 1975. Early life Morris was born in Liverpool, where his father was a bank manager. He ...
,
Viscount Dilhorne Viscount Dilhorne, of Greens Norton in the County of Northampton, is a title in the Peerage of the United Kingdom. It was created on 7 December 1964 for the lawyer, Conservative politician and former Lord Chancellor, Reginald Manningham-Buller, ...
,
Lord Wilberforce Richard Orme Wilberforce, Baron Wilberforce, (11 March 1907 – 15 February 2003) was a British judge. He was a Lord of Appeal in Ordinary from 1964 to 1982. Early life and career Born in Jalandhar, India, Richard Wilberforce was the son of ...
,
Lord Diplock William John Kenneth Diplock, Baron Diplock, (8 December 1907 – 14 October 1985) was a British barrister and judge who served as a lord of appeal in ordinary between 1968 and until his death in 1985. Appointed to the English High Court in ...
, and Lord Kilbrandon, heard the appeal over 13 days in November and December 1971. Exceptionally, seven law lords sat for the appeal, whereas appeals to the House of Lords were usually heard by panels of five. On 23 February 1972, the House of Lords dismissed the appeals. A majority of the House (Viscount Dilhorne, Lord Wilberforce and Lord Diplock dissenting) found that the trial judge had adequately directed the jury on the question of exemplary damages, and that the jury's award of damages, though large, was not unreasonable. However, Lord Hailsham criticised the Court of Appeal in very strong terms for instructing trial judges to ignore the House of Lords' decision in ''Rookes v Barnard'':
The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers. Where decisions manifestly conflict, the decision in '' Young v. Bristol Aeroplane Co. Ltd.''
944 Year 944 (Roman numerals, CMXLIV) was a leap year starting on Monday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Arab–Byzantine wars, Arab–Byzantine War: Byzantine forces are de ...
K.B. 718 offers guidance to each tier in matters affecting its own decisions. It does not entitle it to question considered decisions in the upper tiers with the same freedom. Even this House, since it has taken freedom to review its own decisions, will do so cautiously.
Lord Hailsham then went on to defend Lord Devlin's decision as being compatible with previous decisions of the House of Lords, which Lord Denning had suggested went against the holding in ''Rookes v Barnard''. Lord Reid criticised exemplary damages as anomalous and opposed their extension to any class of case which was not covered by previous authority. For his part, Lord Wilberforce thought that the "heavy, indeed exorbitant" English costs system already gave English civil justice a punitive element. However, he thought Lord Devlin did not mean to limit punitive damages in defamation cases.
Julius Stone Julius Stone (7 July 1907 – 1985) was Challis Professor of Jurisprudence and International Law at the University of Sydney from 1942 to 1972, and thereafter a visiting Professor of Law at the University of New South Wales and concurrently Dist ...
described the Lords' decision as "what may well be the most hostile ''affirmation'' of a Court of Appeal decision in our history."{{Cite journal, last=Stone, first=Julius, date=September 1972, title=On the Liberation of Appellate Judges: How Not to Do It!, journal=The Modern Law Review, volume=35, issue=5, page=451, doi=10.1111/j.1468-2230.1972.tb02359.x, jstor=1094473


References

House of Lords cases Lord Denning cases English defamation case law David Irving