Tolley v J S Fry and Sons Ltd

A publication which is innocent on its face may acquire a defamatory meaning from the circumstances in which it appears. The judge must decide whether the publication is reasonably capable of that meaning. If it is, the jury must determine whether readers would in fact understand it in that sense.

A commercial advertisement featuring a person may reasonably imply that the person consented to the use of their name or likeness. Where such apparent consent could damage the person's reputation or status, the issue should be left to the jury. A finding that damages were excessive does not invariably require liability to be retried; the new trial may be confined to damages where the award does not show that the jury's view of liability was also distorted.

The appellant, a prominent amateur golfer, sued the respondents for libel after they used his caricature, without his consent, in newspaper advertisements for their chocolate. The caricature was not alleged to be defamatory by itself. The pleaded innuendo was that readers would infer that he had permitted the advertisement for reward and had thereby compromised his reputation and status as an amateur golfer.

The trial judge allowed the claim to go to the jury, which awarded £1,000. The Court of Appeal held that the damages were excessive and ordered a new trial. Its majority also held that there was no case for the jury and directed judgment for the respondents. The golfer appealed against that latter ruling. The central issue was whether the advertisement and its surrounding circumstances were capable of conveying the pleaded defamatory meaning.

1. Appeal allowed by a majority of four to one. Viscount Hailsham, Viscount Dunedin, Lord Buckmaster and Lord Tomlin held that the trial judge had properly left the claim to the jury. Lord Blanesburgh dissented.

2. Per Viscount Hailsham, Viscount Dunedin, Lord Buckmaster and Lord Tomlin, it is for the judge to decide whether the publication is capable of a defamatory meaning. If it is, the jury must decide whether it actually bears that meaning. A publication which is innocent when considered alone may become capable of a defamatory meaning because of the circumstances and environment in which it is published. Viscount Dunedin applied the contextual method stated in Capital & Counties Bank v Henty, 7 App Cas 741.

3. Per the majority, a jury could reasonably infer from the use of the appellant's caricature within a commercial advertisement that he had assented to that use, whether gratuitously or for payment. The advertisement's character, its presentation by a reputable commercial firm and the evidence concerning amateur sporting status made the suggested inference sufficiently reasonable for jury consideration. Unchallenged evidence showed that an amateur golfer's participation in commercial advertising could seriously damage his standing.

4. Viscount Hailsham and Lord Buckmaster regarded the correspondence between the respondents and their advertising agents as further support for leaving the issue to the jury. It showed awareness that associating amateur athletes with advertising might imperil their status. Viscount Dunedin considered the correspondence unnecessary to the threshold decision, while Lord Tomlin reached his conclusion apart from it.

5. Per Viscount Hailsham, the Court of Appeal's unchallenged conclusion that £1,000 was excessive required a new trial on damages. Excessive damages did not, on these facts, justify an inference that the jury's determination of liability was biased or mistaken. The new trial was therefore confined to assessing damages. Lord Buckmaster agreed that the wrong was substantial rather than merely technical.

6. Lord Blanesburgh dissented. In his view, the advertisement was so vulgar that no reasonable reader acquainted with the appellant could suppose that he had consented to it. He also considered that the broader belief concerning amateurs exploiting their status had neither been pleaded under the former practice nor proved by evidence. He would have dismissed the appeal.

1. House of Lords: Allowed the plaintiff's appeal by a majority of four to one. The liability verdict was preserved and the new trial was confined to damages.

2. Court of Appeal: Held that the £1,000 damages award was excessive and ordered a new trial. The majority further held that there was no case to leave to the jury and directed judgment for the defendants.

3. Trial: The judge rejected the defendants' submission that there was no case for the jury. The jury found for the plaintiff and awarded £1,000 damages.