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Page2

Positive or Neutral Judicial Treatment

*226 Osborn v Thomas Boulter and Son.

Court of Appeal
16 May 1930

[1929. O. 1917.]
[1930] 2 K.B. 226
Scrutton, Greer and Slesser L.JJ.
1930 May 15, 16.
DefamationLibelPrivileged OccasionPublication to
PrivilegeReasonable and ordinary Course of Business.

Clerk

of

Person

exercising

If a business communication is privileged, as being made on a privileged occasion,

the privilege covers all incidents of the transmission and treatment of that
communication which are in accordance with the reasonable and usual course of
business; and it is in accordance with the reasonable and usual course of business
for a business man to dictate his business letters to a typist, even although those
letters contain statements defamatory of a third person.
Pullman v. Hill & Co. [1891] 1 Q. B. 524 not followed.
Edmondson v. Birch & Co., Ld. [1907] 1 K. B. 371 followed.
Per Scrutton L.J.: Pullman v. Hill & Co. (supra), where it was held that at the time of
that decision it was not a usual and reasonable thing for a member of a business
firm to dictate a letter containing defamatory statements to, and have it copied by, a
clerk, was merely a decision of fact.
Semble(per Scrutton and Slesser L.JJ.): Where a document containing defamatory
statements is published by being road out to a third person, or where the publication
of the defamatory statement is to a clerk to whom it is dictated, the communication
in either case amounts to slander and not to libel.
Semble(per Greer L.J.): Such communication amounts to libel.
APPEAL from a decision of Horridge J.
The plaintiff was tenant to the defendants of the Royal Oak Inn, Kidderminster, and by
his tenancy agreement was bound to sell only beer supplied by the defendants, who
were brewers. On November 16, 1929, the plaintiff wrote the following letter to the
defendants:
"Dear Sir, I would like you to pay attention to the way my beer order was
dropped which is due to the poor quality beer you have been sending me.
Now I have asked you several times to remedy it and when Mr. Blakeway
came to see it he made many promises, but I am still in the same hopeless
mess as before and you know one cannot trade on promises so this is the
last time I am going to write to you on this matter as it seems very hard to
do business with you."

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Upon that the defendants sent one Blakeway, one of their employees, to investigate the
complaint and to see the plaintiff's premises. Thereafter, *227 on November 27, 1929,
Mr. Boulter, one of the defendant firm, dictated to his typist the following answer to the
plaintiff's letter:
"Dear Sir, In further reference to yours of the 16th inst., in which you
grumble at the quality of the beer, we are sorry to say we have heard
rumours that you are adding water to it, we won't say how, and if this is so
no doubt the people would grumble about the beer. We can only tell you that
if you resort to these kind of measures you are running yourself liable to
heavy fines and penalties, as if Mr. Cowdry, the Food and Drugs Inspector,
were to get on your track you would catch it. Besides this, we do not
countenance this in any shape or form whatever. We do not want our good
beer spoilt and if you will retail it as we send it out you should do the best
trade in the street, the same as this house has always done."
When Mr. Boulter had dictated the letter he said to Blakeway, who was also present, "Is
that right?" to which Blakeway said, "Yes." The letter was then transmitted to the
plaintiff, who thereafter brought this action, alleging that the defendants falsely and
maliciously wrote the letter of the plaintiff in the way of his business and published the
same to certain clerks and/or typists in their employment.
By their defence the defendants said that the words complained of were not defamatory;
that they were written and published in answer to the plaintiff's letter of November 16,
1929, wherein he complained of the quality of the beer supplied to him by the
defendants; that as the plaintiff was the defendants' tenant and bound to sell only beer
supplied by them, the defendants and the plaintiff had a common interest in the quality
of the beer, in complaints made by the plaintiff's customers, and in the rumours referred
to in the words complained of; that the words complained of and the occasion of their
publication were privileged. The defendants further said that in so far as the words might
be held to allege that the plaintiff had in fact added water to beer supplied to him by the
defendants, the words were true in substance and in fact. Further, they said that the
plaintiff had not suffered any damage. *228
At the trial, which was tried without a jury, Horridge J. held that the defendants had
failed to justify the allegation that the plaintiff had watered the beer supplied by him to
his customers; he held, further, that the presence of Blakeway in the room when the
letter of November 27 was read out prevented the occasion being privileged. There was
a conflict of recollection between counsel whether the judge also held that the
communication of the letter to the typist destroyed the privilege. On his findings he gave
judgment for the plaintiff for 500l.
The defendants appealed.
Eales K.C. and Arthur Ward for the appellants. Horridge J. was wrong in holding that the
communication of the letter of November 27 by the appellants to the typist and
Blakeway destroyed the privilege. Pullman v. Hill & Co.1, which appears to decide the
contrary, cannot now be considered good law in view of the later authorities. In
Edmondson v. Birch & Co., Ld.2, Cozens-Hardy L.J. said 3:
"If we were to accede to the argument for the plaintiff, we should in effect be
destroying the defence of privilege in cases of this kind, in which limited
companies and large mercantile firms are concerned; for it would be idle in
such cases to suppose that such documents as those here complained of
could, as a matter of business, be written by, and pass through the hands of,
one partner or person only. In the ordinary course of business such a
document must be copied and find its way into the copy letter-book or
telegram-book of the company or firm. The authorities appear to me to show
that the privilege is not lost so long as the occasion is used in a reasonable
manner and in the ordinary course of business."

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In the same case Fletcher Moulton L.J. said 4:

"If a business communication is privileged, as being made on a privileged
occasion, the privilege covers all incidents of the transmission and treatment
of that communication which are in accordance with the reasonable *229
and usual course of business."
Those observations are directly applicable to the facts of this case, the letter complained
of having been dictated to the typist in the ordinary course of business, and having been
referred to Blakeway to ascertain whether it was correct. The same view was expressed
in the later case of Roff v. British and French Chemical Manufacturing Co.5Whatever may
have been the practice in 1890, when Pullman v. Hill & Co.6 was decided, certainly the
practice is now for business men to dictate all their business letters and not to write
them with their own hand.
Sullivan K.C. and J. F. Bourke for the respondent. Notwithstanding what may have been
said of Pullman v. Hill & Co.7 in later cases, it is absolutely on all fours with the present
case, and therefore governs it. As Lopes L.J. there said 8:
"I have never yet heard that it is in the usual course of a merchant's
business to write letters containing defamatory statements. If a merchant
has occasion to write such a letter he must write it himself, and make a copy
of it himself, or he must take the consequences."
Here it cannot be said that it was reasonably necessary and in the ordinary course of
business for the appellants to communicate the letter complained of to the typist or to
Blakeway. In Edmondson v. Birch & Co.9 it was reasonably necessary for the defendants
for the protection of their own interests to communicate the telegram to a clerk for
coding purposes. In Roff v. British and French Chemical Manufacturing Co. 10 the question
of publication to clerks did not arise.
[Boxsius v. Goblet Frres11was also referred to.]
SCRUTTON L.J.
In this case, as the facts do not sufficiently appear in the papers, we might have had
some difficulty were it not that counsel have substantially agreed as to what happened in
the Court below. The facts as agreed are these: The plaintiff in the action, the
respondent in *230 this appeal, was the lessee of a public house which was supplied
with beer by the appellants, who are brewers. On November 16 the respondent wrote a
letter to the appellants in these terms:
"I would like you to pay attention to the way my beer order was dropped
which is due to the poor quality beer you have been sending me. Now I have
asked you several times to remedy it and when Mr. Blakeway came to see it
he made many promises, but I am still in the same hopeless mess as before
and you know one cannot trade on promises so this is the last time I am
going to write to you on this matter as it seems very hard to do business
with you."
That is an allegation that the brewers were supplying beer of poor quality. Mr. Boulter, a
member of the appellant firm, after consulting Mr. Blakeway and sending him to see the
respondent's premises, when a suggestion seems to have been made that the
respondent was not keeping his cellars at a proper temperature, wrote the following
letter to the respondent on November 27:
"In further reference to yours of the 16th inst., in which you grumble at the
quality of the beer, we are sorry to say we have heard rumours that you are
adding water to it, we won't say how, and if this is so no doubt the people

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would grumble about the beer. We can only tell you if you resort to these
kind of measures you are running yourself liable to heavy fines and
penalties, as if Mr. Cowdry, the Food and Drugs Inspector, were to get on
your track you would catch it. Besides this, we do not countenance this in
any shape or form whatever. We do not want our good beer spoilt and if you
will retail it as we send it out you should do the best trade in the street, the
same as this house has always done."
That is the letter complained of and, unless it is privileged, it is obviously actionable,
inasmuch as it alleges that he deliberately watered his beer. It is fair to the respondent
to say that the appellants failed to justify this allegation, so the respondent is free from
the imputation that he watered the beer he supplied to his customers. The letter,
however, can give rise to no cause of action unless it was published to some third party.
The respondent pleaded *231 that the letter was written maliciously, and that it was
published to certain persons in the appellants' employment. It appears that Mr. Boulter
dictated the letter to a lady typist, and then, at Mr. Boulter's request, she read out the
words she had written, Blakeway being also then present. Mr. Boulter said to Blakeway,
"Is that right?" and Blakeway said, "Yes." On that a question may arise, as to which at
present I express no opinion except to say that it must not be taken that I am clear that
there was in what happened any publication of a libel. What Mr. Boulter dictated to the
typist appears to be a slander, and on the question whether when the typist read out
what she had written that constituted a slander or libel I can only say that
notwithstanding John Lamb'scase 12 the text writers appear to think it a slander and not
a libel. I therefore do not wish this to be a decision that on the state of facts with which
we are concerned what happened was the publication of a libel. To me it appears to be a
slander.
At the trial, at the end of the plaintiff's case counsel for the appellants submitted that no
case had been made out, because the occasion of the publication being a communication
between the respondent, who alleged that bad beer had been supplied to him, and the
brewers, who were protecting their own interests by repudiating the suggestion of bad
beer and suggesting another cause for its inferior quality, was privileged. There is a
slight difference in the recollection of counsel as to what the judge then said. They agree
that he said that he was going to hold that the presence in the room of Blakeway
destroyed the privilege; they differ as to whether he also said that the communication of
the letter to the typist destroyed the privilege. The judge went on to say to the
defendants: "You must prove your justification." They tried to do so, and in the opinion
of the judge failed; and the judge said nothing more about privilege.
Mr. Sullivan has addressed us with great vigour in support of the proposition that
Pullman v. Hill & Co.13has decided this case, and he made that submission in spite of
three *232 subsequent decisions of the Court of Appeal. Pullman v. Hill & Co.14, he
contends, still survives as a decision on law which governs this case. In my view, on the
question whether privilege is lost by communicating to a staff of clerks the alleged
defamatory matter, the rule we have to apply has been laid down by this Court after a
consideration of Pullman v. Hill & Co.15 in Edmondson v. Birch & Co., Ld. 16, and again
adopted in this Court in Roff v. British and French Chemical Manufacturing Co.17 In
Edmondson v. Birch & Co., Ld.18, a company in England wrote and cabled to a company
in Japan about the character of a person whom it was proposed to employ. The letter
and cable, which contained defamatory matter, were, in the ordinary course,
communicated to the clerks of the company sending the letter and cable, by dictation,
copying and coding. Collins M.R., after considering the previous cases of Pullman v. Hill &
Co.19 and Boxsius v. Goblet Frres20, said 21:
"The result of the two cases to which I have alluded, taken together, appears
to me to be that, where there is a duty, whether of perfect or imperfect
obligation, as between two persons, which forms the ground of a privileged
occasion, the person exercising the privilege is entitled to take all reasonable

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means of so doing, and those reasonable means may include the

introduction of third persons where that is reasonable and in the ordinary
course of business; and if so, it will not destroy the privilege."
Cozens-Hardy L.J. said

22

"I think that, if we were to accede to the argument for the plaintiff, we
should in effect be destroying the defence of privilege in cases of this kind, in
which limited companies and large mercantile firms are concerned; for it
would be idle in such cases to suppose that such documents as those here
complained of could, as a matter of business, be written by, and pass
through the hands of, one partner or person only. In the ordinary course of
business such a document must be copied and find its way into the copy
letter-book or telegram-book of the company *233 or firm. The authorities
appear to me to show that the privilege is not lost so long as the occasion is
used in a reasonable manner and in the ordinary course of business."
Fletcher Moulton L.J. said

23

"I agree. In my opinion the law on the subject, as laid down in the cases,
amounts to this: If a business communication is privileged, as being made
on a privileged occasion, the privilege covers all incidents of the transmission
and treatment of that communication which are in accordance with the
reasonable and usual course of business."
The same was said in Roff v. British and French Chemical Manufacturing Co. 24 If the
principle is as there laid down, the decision in Pullman v. Hill & Co.25 is merely that in
1890 it was not a usual and reasonable thing for a member of a business firm to dictate
a letter containing defamatory statements to, and have it copied by, a clerk. In the
opinion of the Court of Appeal in that case if a member of a business firm wished to send
such a letter he must write and copy it himself. That is a decision of fact. The principle
laid down in Edmondson v. Birch & Co., Ld. 26, applies, while the decision on fact is not
binding on any Court in 1930. I am glad to find that in Salmond on Torts and in Odgers'
Libel and Slander the same view is taken of Pullman v. Hill & Co.27 as an authority. If the
principle laid down in those later cases is what we have to apply, how is it to be applied
to the present case? Brewers supplying beer and a licensee who receives it are
quarrelling about its character. That is clearly a privileged occasion within the principle
laid down in Toogood v. Spyring28, because it is the interest of one party to defend
himself and the interest of the other to receive and consider the defence. Is the privilege
lost where a man defending himself and making charges against another reads a letter
to his servant on whose information he is making the charges, and says, "Is that
correct?" I think that it is clearly not lost in those circumstances. Then, is it lost because
in 1930 a man writing such a letter dictates it *234 to a typist who reads it out from
her notes? Applying Edmondson v. Birch & Co., Ld.29, that appears to me to be a
reasonable way of making a communication to another party, even though the letter
contains defamatory statements. Acting therefore on the authority of that decision and
applying it to the facts of this case, it seems to me (1.) that the occasion on which the
letter was written was privileged; (2.) that the protection was not lost by a
communication of the contents of the latter to Blakeway, the communication to him
being to ascertain whether the letter was justified in view of his report; and (3.) that the
protection of the privileged occasion was not lost by the dictation of the letter to the
typist, that being a reasonable and ordinary method in commercial matters of writing
letters, even though they may contain defamatory statements. The judge ought at the
end of the plaintiff's case to have entered judgment for the present appellants, and
judgment must now be entered for them. The appeal will therefore be allowed.

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GREER L.J.
I am of the same opinion. The plaintiff in the present case was the defendant's tenant
and licensee of a public house, the defendants being brewers. It was not necessary for
the defendants to rely upon the occasion on which the letter in question was written
being a privileged occasion as regards publication to the plaintiff himself, because that is
not a publication in law of which the plaintiff can complain. But it is none the less true
that the occasion on which the letter was written was one which the law regards as
privileged, because it was one in which it was the interest of the defendants to write the
letter, and the interest of the plaintiff to know what view the defendants were taking of
the question that had arisen - namely, who was responsible for the bad quality of the
beer. We approach this case therefore from the point of view that the occasion was
privileged, and the question is whether publication of the letter to the defendants'
servants in the ordinary course of business deprives the defendants of the defence of
privilege. Great *235 reliance was placed by Mr. Sullivan on Pullman v. Hill & Co.30, and
I go with the argument thus far that if that case had never been commented upon or
distinguished, and if it is to be regarded as laying down the law to be applied to letters
and communications written in a merchant's or business man's office, it is decisive of
this case. But the general methods of business may be quite different in 1929 from what
they were in 1890. Where a question arises in 1930, as regards matters which took
place in 1929, the inference to be drawn by a judge as to what are the reasonable
methods of conducting a business is not the same question as that which had to be
decided in 1890. I am not quite clear that if I had been sitting in the Court of Appeal in
1890 I should have drawn the same inference as was drawn by the judges who decided
Pullman v. Hill & Co.31, but the question now is what is the proper inference to be drawn
in 1929, especially having regard to the views that have since been expressed by the
Court of Appeal in other cases? I take it that the law to be applied is correctly stated by
Cozens-Hardy L.J. and Fletcher Moulton L.J. in Edmondson v. Birch & Co., Ld. 32, which
was expressly approved by Swinfen Eady M.R. in Roff v. British and French Chemical
Manufacturing Co.33, where he said 34:
"With regard to the authorities, it was urged on behalf of the plaintiff that the
mere fact that a defamatory communication, prima facie privileged, is
communicated to a third person destroys the privilege. In my opinion that
proposition cannot be maintained. The case of Pullman v. Hill & Co.35 has
been dealt with many times since the date of its decision. It was qualified
and distinguished by Lord Esher in Boxsius v. Goblet Frres36, and it was
further dealt with by the Court of Appeal in Edmondson v. Birch & Co., Ld.37,
where the rule was laid down in these terms by Cozens-Hardy L.J.: 'The
authorities appear to me to show that the privilege is not lost so long as the
occasion is used in a reasonable *236 manner and in the ordinary course of
business.' And Fletcher Moulton L.J. said 38: 'If a business communication is
privileged, as being made on a privileged occasion, the privilege covers all
incidents of the transmission and treatment of that communication which are
in accordance with the reasonable and usual course of business.'"
I take that statement of Fletcher Moulton L.J. to be now a rule of law applicable to cases
of the kind we have to consider in this case. I have come to the conclusion that no one
could possibly say that at the present time or when this letter was written it was other
than a reasonable and usual course of business for brewers and business people
generally, instead of writing business letters in their own hand, to write them through
the intermediary of a typist, and, accordingly. I hold that the dictation to the typist of the
letter in question if a libel and not slander - I am inclined to think that it would be a libel
- was on a privileged occasion, and cannot be complained of unless it could be shown to
have been written maliciously. I am not sorry to come to this conclusion in this case,
because it seems to me a very extraordinary result that a person should get a sum of
500l. for an alleged libel when the only publication complained of was publication to a

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clerk who wrote the letter at the dictation of Mr. Boulter. The publication complained of
was in the reasonable and usual course of business. For these reasons I think the appeal
should be allowed and judgment entered for the defendants.
SLESSER L.J.
I agree that the appeal should be allowed for the reasons stated by Scrutton L.J. I only
desire to add that in my mind there is considerable doubt whether the publication was a
slander or a libel. It may well be that the circumstance of dictation, and the dictated
matter being brought back and considered by the dictator, may constitute in certain
cases a libel, but in this case I can see no evidence that the dictated matter was ever
brought back for consideration by Mr. Boulter. The evidence is that Mr. Boulter *237
dictated the letter, Blakeway being present, and he saying (when asked by Mr. Boulter if
it was all right), that it was. That looks as if the question had been asked at the time of
the dictation and not after its reduction to writing. It may be that the only
communication between Mr. Boulter and the typist was the bare dictation of the letter. I
agree with the passage in Salmond on Torts, 7th ed., p. 530, where it is said:
"The contents of a written document may be published either by allowing
some one to read the document for himself or by reading it out to him. It is
submitted, however, that this latter mode of communication amounts to
slander only, and not to libel. A defamatory statement may be published by
being dictated to a clerk, shorthand writer, or other reporter who reduces it
to writing, but it is submitted in this case also that such a publication
amounts to slander only. There are dicta to the contrary, indeed, in certain
cases in which dictation to a clerk is said to be the publication of a libel to
the clerk; but it is difficult to see how A can publish to B a document which is
written by B himself."
In the present case I do not think there was evidence on which it can be said that there
was any publication of a libel.

Representation
Solicitors for appellants: W. J. Pitman, for Arthur Hall-Wright & Son, Birmingham.
Solicitors for respondent: Chandler, Boulton & Henderson, for Talbot & Painter,
Kidderminster.
Appeal allowed. (J. S. H. )

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1.

[1891] 1 Q. B. 524.

2.

[1907] 1 K. B. 371.

3.

[1907] 1 K. B. 381.

4. Ibid. 382.
5.

[1918] 2 K. B. 677.

6.

[1891] 1 Q. B. 524.

7.

[1891] 1 Q. B. 524.

8.

[1891] 1 Q. B. 524, 530.

9.

[1907] 1 K. B. 371.

10.

[1918] 2 K. B. 677.

11.

[1894] 1 Q. B. 842.

12.

(1611) 9 Rep. 59b.

13.

[1891] 1 Q. B. 524.

14.

[1891] 1 Q. B. 524.

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15.

[1891] 1 Q. B. 524.

16.

[1907] 1 K. B. 371.

17.

[1918] 2 K. B. 677.

18.

[1907] 1 K. B. 371.

19.

[1891] 1 Q. B. 524.

20.

[1894] 1 Q. B. 842.

21.

[1907] 1 K. B. 380.

22. Ibid. 381.

23.

[1907] 1 K. B. 382.

24.

[1918] 2 K. B. 677.

25.

[1891] 1 Q. B. 524.

26.

[1907] 1 K. B. 371.

27.

[1891] 1 Q. B. 524.

28.

(1834) 1 Cr. M. & R. 181.

29.

[1907] 1 K. B. 371.

30.

[1891] 1 Q. B. 524.

31.

[1891] 1 Q. B. 524.

32.

[1907] 1 K. B. 371.

33.

[1918] 2 K. B. 677.

34.

[1918] 2 K. B. 681.

35.

[1891] 1 Q. B. 524.

36.

[1894] 1 Q. B. 842.

37.

[1907] 1 K. B. 371, 382.

38.

[1907] 1 K. B. 382.

(c) Incorporated Council of Law Reporting for England & Wales

2013 Sweet & Maxwell

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