Allegations against firm of managing agents by husband of tenant of flat in luxury block–Interim injunction granted to restrain proposed publication to press of allegations–Whether injunction should be continued–Principles governing grant of injunctions in libel actions–Importance of preserving freedom of speech–Injunction discharged, but undertaking not to make certain accusations maintained.
This was an
interlocutory appeal by the defendant from a decision of Jupp J continuing an
injunction which the plaintiffs, J Trevor & Sons, had obtained ex parte
to restrain the defendant, Philip Raymond Solomon, until the trial of the
action from making statements alleged to be defamatory of the plaintiffs in
their capacity of managing agents.
H Martineau
(instructed by Lurigram & Co) appeared on behalf of the plaintiffs; J
Littman (instructed by Bernard Sheridan & Co) represented the defendant.
Giving
judgment, LORD DENNING MR said: This case is concerned with a block of luxury
flats at Fountain House, Park Street, London W1. Those flats used to belong to
the Prudential Assurance Co, but they recently changed hands. The new owners
are a concern, of whom we know little except that it is an overseas company,
Fontana Societe NV, which is incorporated in the Netherlands Antilles, and is
said to be controlled by an Arab gentleman, one Sheik Khojabe. These new owners
operate through new managing agents, J Trevor & Sons. As a result of that
changing of hands, there has been a change of policy in regard to the tenancies
of the flats. The new owners, instead of letting for long terms at moderate
rents, want to make short-term lettings to rich tenants at higher rents, often
Arabs. We have been shown a recent letter which shows that it is the general
policy to buy out sitting tenants as cheaply as can be done. The agents get a
bigger reward if the payment is low than if it is high.
One of the
tenants in one of the flats is the wife of Mr Philip Solomon. He has formed the
impression that there has been harassment of the long-term tenants in this
block so as to get them out, to get them evicted, or to get them to leave in
one way or the other. For instance, the lifts have been out of action for long
periods. The excuse is that they are not safe and need repairs. Again, the hot
water and central heating have been cut off for one reason or another. The
carpets have been taken up, and so forth. At all events, Mr Solomon regards it
all as deliberate harassment in order to get the long-standing tenants out. He
may be quite wrong about that, but he is very sincere in his beliefs. He puts
the responsibility on the managing agents, J Trevor & Sons. He is accusing
them of harassment. Their answer is that they have only acted on the direct
orders and instructions of the new owners and not on their own responsibility
at all. This answer is not at all satisfactory because the new owners cannot be
reached. They have no place of business in England. They have no address
registered at which they can be served. They say, I suppose, that they are not
carrying on business here, and so need not register an address for service.
Even J Trevor & Sons say that they are not the agents for the short-term
lettings. That is done by another firm.
In these
circumstances Mr Solomon, feeling that recourse to the law would be too slow
and inefficient, was proposing to call a meeting last Thursday [December 8
1977] at the Westminster Cathedral Conference Room. He asked that the press
should come. He was proposing to make known his allegations to the press in the
hope that they would give publicity to them. Mr Solomon, before doing so,
warned Messrs Trevor & Sons of what he was going to do. There-upon they
went ex parte to May J on Thursday and got an injunction to restrain him
from making statements to the following effect. It was put in four paragraphs:
. . .
. . . (a) a
statement that J Trevor & Sons and/or any partner or employee thereof are
unmitigated scoundrels and gangsters (b) a statement that J Trevor & Sons
and/or any partner or employee thereof have harassed the tenants of Fountain
House, Park Street W1 (c) a statement that J Trevor and Sons and/or any partner
or employee thereof are or have been working in conjunction with the Arabs
against the British population (d) any statement injurious to the credit or
reputation of the plaintiffs.
May J granted
an interim injunction over a few days in order to hold the position. As a
result of that injunction Mr Solomon, at his meeting, did not make any
statements of that kind.
When the
summons came for rehearing before Jupp J yesterday [December 13 1977], he
adjourned it. He felt he had not the time to deal with it finally then. Mr
Solomon did, however, offer an undertaking that he would not accuse J Trevor
& Sons of being unmitigated scoundrels and gangsters: and Jupp J continued
the injunction in respect of harassment in (b) and working with the Arabs in
(c), such injunction to continue until a hearing could be held, the first
available date being next February.
I do not think
this injunction should stand. These courts have always upheld freedom of
speech, the freedom of a man to say what he believes to be true. The principle
was well stated by this court in Bonnard v Perryman [1891] 2 Ch
269. Freedom of speech is so important that if a person is only saying or
repeating what he believes to be true, this court will not give an interim
injunction against him. The public interest is best served by his being allowed
to say what he believes to be true.
It has been
argued before us today that that principle has in some way been altered by the
case of American Cyanamid Co v Ethicon Ltd [1975] AC 396. I would
be sorry if it were. I am quite sure that the House of Lords had no intention
whatsoever of altering the well-established principles on which we give–or
refuse to give–injunctions in libel actions. It seems to me that this is a case
which falls within that principle. I doubt whether it was right even to ask Mr
Solomon to give the undertaking which he has given, but as he is ready to give
it, it is as well to let it stand. Otherwise the ordinary principle should
apply. Mr Solomon should be allowed to say publicly what he honestly believes
to be true. I would discharge the injunction and allow the appeal accordingly.
Agreeing,
ROSKILL LJ said: As this case has been argued more fully in this court than was
possible either before May J or Jupp J and as we are differing from those
learned judges I would add a few words of my own.
In principle
it seems to me that this case is completely
[1891] 2 Ch 269, to which my Lord has referred. It is perhaps worth quoting
from the judgment of Lord Coleridge LCJ, at p 284, because what the Lord Chief
Justice there said is directly relevant to the present case:
The right of
free speech is one which it is for the public interest that individuals should
possess, and, indeed, that they should exercise without impediment, so long as
no wrongful act is done; and, unless an alleged libel is untrue, there is no
wrong committed; but, on the contrary, often a very wholesome act is performed
in the publication and repetition of an alleged libel. Until it is clear that
an alleged libel is untrue, it is not clear that any right at all has been
infringed; and the importance of leaving free speech unfettered is a strong
reason in cases of libel for dealing most cautiously and warily with the
granting of interim injunctions.
Then the court
went on to approve what Lord Esher, Master of the Rolls, had earlier said in Coulson
v Coulson (1887) 3 TLR p 846. It would be a strong thing for this court
wholly to stop Mr Solomon from expressing his views upon matters about which he
obviously feels very strongly. Whether he oversteps the mark between that which
is defamatory and that which is not and whether he can justify that which is
defamatory remains to be seen hereafter, but in my view he is entitled to
express his view strongly. Of course if he goes too far the result may be
expensive. The plaintiffs allege that he proposes to say certain things about
them which I will not repeat but which, like my Lord, I find it difficult to
believe can on any view be justified. In relation to that matter, an
undertaking on his behalf was given to May J and, although Mr Littman tried to
persuade us that the defendant should now be relieved from that undertaking, in
my judgment the plaintiffs are entitled to have that undertaking maintained.
But beyond that I do not think there should be any further order against the
defendant. As my Lord has said, it may well be that little or no publicity will
be given to these charges if publicly made. I do not know, nor do I stop to
speculate.
The only
matter which has caused me some doubt, as I think it has Browne LJ, is
paragraph (c) in May J’s original order. The injunction was granted to restrain
any statement that ‘the plaintiffs and/or any partner or employee thereof are
or have been working in conjunction with the Arabs against the British
population.’ It was suggested that any
statement to that effect would infringe the Race Relations Act as recently
amended. For my part, put simply like that, I doubt whether it would. I do not
think that Mr Solomon should be restrained from urging within the bounds of
propriety that that which he alleges is happening is contrary to the interests
of people in this country. He may or may not be right in that view, but it is a
view that he is entitled to hold and to express with such liberty as the law
allows him.
I would only
mention one further matter, to which my Lord has referred. It was suggested
that the American Cyanamid case had altered the law and practice of the
courts as laid down nearly 90 years ago in Bonnard v Perryman. I
am satisfied that it does not. I would therefore maintain the undertaking given
to May J, but otherwise I would make no order.
BROWNE LJ also
agreed.
Order made
that injunction be discharged, undertaking to be maintained, and costs to be
costs in the cause.
