Law of Tort - Fiona Shackleton - Case Study Example

Law of Tort In order to constitute a tort, a ment must be false and capable of bearing a defamatory meaning. But what constitutes a defamatory meaning is what the ordinary man would interpret as defamatory. It is not what someone into special skills would infer as defamatory. The words 'the celebrity lawyer now finds himself in the frame' are in fact defamatory since when they are interpreted, they mean that the lawyer found himself in hot soup trouble. 1 First the article has been published in one of the local newspaper. Publication is one of the ingredients that must be proofed for one to successfully sue in an action of defamation. The defamatory statement is written hence it qualifies as a libel. My first advice to Nick Freeman is to bring an action for libel which is adorable without the plaintiff having to prove special damage. Furthermore, the statement 'opponents say that he puts the keys of high powered cars back into the hands of drink drivers is ironical and it is meant to lower his reputation as a celebrity lawyer.' Again look at the words 'stitch him up' as used by the police officers. These words can be interpreted by any ordinary person. The words should not be taken in their ordinary meaning in order to find defamation in them but from the inference which would be drawn by the ordinary person who read the words. First, Nick Freeman should sue the publishers of the article for the following types of damages:- i) Substantial damages: The allegations on the newspaper are enormous especially that Nick Freeman was arrested on conspiracy to pervert the course of justice in a bid to protect drunk drivers. It is apparent that these allegations will substantially affect his profession. He should therefore sue the company substantial damages. 2 Special damages: The article would be read by several clients of Nick and his several would-be clients. They may refuse to enter into contracts with him in future. This is likely to financially affect his career in the future. He can the therefore seek special damages for that matter. In the case of Byre v Deare, the plaintiff was a member of a golf club. Some gaming machines were removed from the club following the complaints made to police. Then some typewritten lampoons were placed where the machines were installed and it read a follow:- For many years upon this spot, You heard the sound of the merry bell, Those who were rash and those who were not, Lost and made a spot of cash, But he who gave the game away, May be Byrne in hell rue the day. 3 An action for defamation by the plaintiff did not succeed as it was held that a right thinking person would not view the words as defamatory. ii) Another remedy available to Nick is injunction. Since he is anxiously eager to prevent further publications by the newspaper, he can apply for an injunction. This would compel the court to order the company to stop further publication of information concerning him. 4 Case 2 Fiona Shackleton is currently employed by Payre Hick Beach which was not her employer at the time of the case between Prince of Wales and Diana. But the Evening Standard has gone ahead to print a false statement that it was Payre Hicks Beach firm as a whole which conducted the case when the truth is that it was in fact Farrar's. 5 Fiona Shackleton shall have to proof the following:- i) Justification: - in order for her to successfully sue the defendants, Fiona Shackleton must justify that the words so printed injured her reputation as a lawyer. For that matter, she should argue that these printings would effect a similar case before her, that of Sin Paul Mc Carthey v Lady Mills - Mc Marthey. ii) Reference to the plaintiff: - That the words so printed referred to her. Though in actual sense, there is nowhere her name is mentioned, only the firm's name. She is the one who represented the case into E. Hulton and Co. v Jones. A newspaper published an article that the plaintiff was accused of staying with a woman in France. The defendants alleged that they had invented the name i.e. there was no one with such a name. However, it was found out that there was a journalist by that name. It was held that the libel against the plaintiff by the newspaper and damages were awarded thereof. 6 Fiona Shackleton will have the following remedies:- a) General damages: - Because reference was made to him and the statement was false as it is had nothing to do with Payre Hicks Beach; this amounted to libel against her. In addition, the libel is likely to cause discomfort for his current clients who might withdraw on the basis of the publication. For this case, she should sue the defendants for damages. 7 b) Exemplary/punitive damages: These are awarded in any case the court considers that the conduct of the defendant is such extent that punishment needs to be exercised in Davies v Shah where grievous allegations were made and repeated successfully by the defendants. The allegations similar to those made by the Evening Standard, portrayed the plaintiffs as dishonest and one who exhibited professional misconduct in his career. That were found to be false and the plaintiffs were awarded exemplary damages. 8 Case 3 The words as published may not appear to be defamatory on sight. Unless investigations reveal that the president only died of the mild stroke and not through poisoning, then the words will amount to deformation. Poisoning an individual is like murder and is a criminal offence. If an allegation has been brought against the plaintiff that he is guilty of a criminal offence and the allegation is found to be false, the plaintiff need not prove the defamatory. It will be actionable per se. 9 In this case the publication has attacked the cabinet generally and no individual has been mentioned as the culprit. It would be very difficult for Adriaan Volk to bring a suit to defamation against him. He has not been mentioned in the statement as the chief suspect. Statements are often made which are defamatory but in which the person defamed is not named. Anyone who purports to have been defamed by such a statement is required to prove that the statement is made to his reference. It is not sufficient enough for some specific person to have believed that the defamatory statement referred to the plaintiff but "the whole world" i.e. a significant/substantial number of persons. 10 For Adriaan to therefore succeed in his suit, it must be established that quite a number of people could reasonably have been lead to recognize the plaintiff as the perpetrator of the act (that of poisoning the president). Although one would argue that by virtue of his position (minister for law and order), Adriaan could have been the chief suspect but his reference would be too remote. Again, Adriaan need to know that when reference is made to a body or class of persons, it is not generally open to any member of it to say that the words relate to him personally, unless there is some words in the statement that relate to him and him alone. So, these allegations will be interpreted to have been made to the whole cabinet which is a group/team of ministers. Otherwise, the question the courts will throw to him will be, are you the cabinet yourself In Hulton and Co. vs. Jones, the judge held; "it is not uncommon to attach a disclaimer at the beginning of a work fiction: the persons and events described in this book are wholly imaginary" so what I can advice the plaintiffs (Adriaan) is to sue only if he can show that he himself is the person being refereed to by the purported defamatory statement. Otherwise he has no remedies in a case, which he has not been mentioned. 11 Case No 4 It is very clear that from the statement that reference was made to the plaintiffs (Clare Balding). Although the words used are not clear since they are not written in the ordinary English language, they are in fact literal. Clare must do a literal translation and convince the court that the words are malice. But I would advice Clare that she ought not to strain in looking for the meaning of the words since inaccuracy in translation may be ignored, but a material difference would be fatal, as will fail to set out the original words. This was held in De Souza .V. Zenith Printing Works Ltd. Clare Balding can sue the defendants by alleging/pleading for an innuendo. This is where a secondary meaning attributable to the words complained of can be sought. 12 By reason of the circumstances surrounding Clare Balding, that of being a Lesbian, the words portray an act of lesbianism. This is shown by the words "Alice will scratch Clare's back shortly". Any reasonable thinking man who knows Clare Balding cannot fall short of interpreting these words to mean lesbianism. The words "she married Alice" are ironical and reasonable persons could and in fact would interpret the words in a defamatory sense. A man in Cassidy v. Daily Mirror Newspaper who was a well know womanizer, let himself to be photographed with a lady who he later claimed was his fiance. A publication of the photograph was made in the dairy mirror as follows; Mr. Mc Corrigan, the race-horse owner and Miss X whose engagement has been announced." The plaintiff, the man's matrimonial wife brought an action for libel against the newspaper terming it is an innuendo. It was held that since the evidence was there, some of her friends believed in the statement hence she was entitled to damages. But on seeking redness on the alleged innuendo, Clare must come up with a reasonable meaning to the published words. In Sim v Stretch, the defendant's persuaded the plaintiff's house girl to leave him and join them. They (defendants) telegraphed the plaintiffs - 'Edith has resumed her services with us today, please send her possessions and the money you borrowed and her wages.' This message discredited the plaintiff as being in a financial crisis, failing to pay her housemaid and even borrowing money from her. On appeal, it was held that the telegram contained no defamatory words. It was unreasonable. 13 So the question here is whether the innuendo can be reasonably be alleged. And most importantly is the question whether the words tend to lower the plaintiff in the estimation of the right-thinking members of the society. Clare can therefore:- i) Sue for an injunction: - she can seek an injunction restraining the Evening Standard from further publication of her stories; she should try to restrain the newspaper against any defences they may put forward such as the publication was a matter of public interest. 14 ii) Indemnity: - Clare Balding can sue for indemnity so that she can be placed in the position she were before the publication. This can take the form of the newspaper company apologizing. It can also take the form of offer of amends where the defendants will have to state that they were unaware of the injury the words have caused. iii) Vindictive damages: - she can also sue for vindictive damages for the loss of reputation as a well known TV present. References Christie, G.C (1997): The Law of Tort: Revised Edn, London, West Publishing Co. Emerson R. W (2003): Business Law, 5th Edn, Sydney, Educational Publisher Emanuel, S. L. (2004): Fundamental of Business Law, 4th Edn, Sydney, Educational Publisher Koziol, H (2004): European Tort Law, London, Springer Koziol, H, Steininger, B.C (2003): European Tort Law 2002, London, Springer Penrose, R (2005): Road to Reality: A Complete Guide to the Laws of the Universe, Sydney, Longman Publisher Jertz, A., Miller L. R, (2004): Fundamentals of Business Law, 3rd Edn, London, Macmillan Publisher Tyler, T. R. (1990). Why People Obey the Law. Hew Haven: Yale. Von Bar, C. (2000): The Common European Law of Torts, Vol.2: London, Oxford University Press Read More