Case: Sim v Stretch (1936) 52 TLR 669
Outcome: applied
as it is suggested that the publications conveyed imputations which were defamatory of the applicants or any of them the test to be applied in determining the question of defamatory meaning is that enunciated by Lord Atkin in Sim v Stretch (1936) 52 TLR 669 at 671, namely, would the words tend to lower the applicants in the estimation of right-thinking members of society generally? In Sim v Stretch there had been a quarrel between neighbours which concerned the vicissitudes of a domestic servant whose fortune it was to be employed at successive times by both the plaintiff and the defendant. The defendant had dictated to the post office at Maidenhead a telegram reading 'Stretch, The Twigs, Cookham Dean. Edith has resumed her service with us to-day. Please send her possessions and the money you borrowed, also her wages, to Old Barton. Sim'. The Statement of Claim in that case, after alleging publication of the words of the telegram to the officials of the post office whose duty it was to transmit and deal with the telegram, alleged in paragraph 7: 'By the said words the defendant meant and was understood to mean that the plaintiff [Stretch] was in pecuniary difficulties, that by reason thereof he had been compelled to borrow and had in fact borrowed money from the said housemaid, that he had failed to pay the said housemaid her wages, and that he was a person to whom no one ought to give any credit'. At the close of the plaintiff's case counsel for the defendant submitted that the words of the telegram were incapable either of the meaning alleged in the innuendo or of any defamatory meaning. Lord Atkin proceeded to say at 671: '... The learned Judge rejected the submission ... It appears to me that the alleged innuendo is fantastic, and that the words used are in their ordinary meaning incapable of being understood by reasonable persons as conveying an imputation on the plaintiff's financial credit. It was, in my opinion, the duty of the Judge so to have held, and to have withdrawn the count alleging the innuendo from the jury. ... ... Judges and text-book writers alike have found difficulty in defining with precision the word "defamatory". The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person, or class of persons, whose reaction to the publication is the test of the wrongful character of the words used. I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose, in the present case, the test: Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? Assuming such to be the test of whether words are defamatory or not, there is no dispute as to the relative function of Judge and jury, of law and fact. It is well settled that the Judge must decide whether the words are capable of a defamatory meaning. That is a question of law; is there evidence of a tort? If they are capable, then the jury is to decide whether they are in fact defamatory. In the present case it is material to notice that there is no evidence that the words were published to anyone who had any knowledge at all of any of the facts ... There is no direct evidence that they were published to anyone who had ever heard of the plaintiff. The post office officials at Maidenhead would not be presumed to know him, and we are left without any information as to the officials at Cookham Dean. ... It might, however, be inferred that the publication of the telegram at Cookham Dean was to someone who knew the plaintiff. What would he or she learn by reading the telegram? That Edith Saville had been in the plaintiff's employment; that she had that day entered the defendant's employment; and that the former employer was requested to send on to the new place of employment the servant's possessions, together with the money due to her for money borrowed and for wages. How could perusal of that communication tend to lower the plaintiff in the estimation of the right-thinking peruser who knew nothing of the circumstances but what he or she derived from the telegram itself?' Lord Russell of Killowen and Lord Macmillan concurred with Lord Atkin's reasons.