Broome v Cassell & Co Ltd

The parts of Rookes v Barnard concerning exemplary damages remains good law, although they have been rejected in most leading Commonwealth jurisdictions.

On 4 July, the First Sea Lord, Admiral of the Fleet Sir Dudley Pound, ordered the convoy to scatter, due to fears that it was about to be attacked by German surface vessels, including the battleship Tirpitz.

Despite the help provided by the material delivered, PQ 17 actually worsened Soviet-Allied relations over the short term, with the Soviets never acknowledging the efforts of Allied merchant seaman or sailors.

US Navy Admiral Dan Gallery, who was serving in Iceland at that time, called PQ 17 "a shameful page in naval history".

Originally titled The Knight's Move, it contained several attacks on Broome's conduct during the operation, and generally blamed him for the destruction of the convoy.

In particular, it accused Broome of having disobeyed instructions given by Rear-Admiral Hamilton, and had taken the convoy too close to the Norwegian coast, thus exposing it to attacks from land-based Luftwaffe aeroplanes.

It accused Broome of having misunderstood the Admiralty's signals, of deserting the convoy because of cowardice, and of not caring about the fate of the merchant ships under his protection.

In March the following year, Cassell agreed to publish the manuscript in book form, despite Broome's threats.

The publishing contract contained an indemnity clause in which Irving undertook to indemnify Cassell if the book was found to be libellous.

Upon hearing of the book's impending publication, Broome wrote to Cassell, who assured him that major changes had been made to the original manuscript, which was not the case.

In early 1968, Cassell issued 60 proof copies of the book, along with an advertisement, but stopped the publication in February 1968.

In March 1968, Broome issued a writ for libel against Cassel and Irving in respect of the proof copies.

Two days before the first hearing, Cassell issued a paperback edition of the book, possibly in anticipation of the publicity the trial would bring.

Basil Elliott, a policeman who had been a signalman on Broome's ship at the time, gave evidence for him after learning of the trial from a newspaper report.

[7] In his final submissions, Hirst accused the defendants of "effrontery" in maintaining that the words complained of were true in the face of the evidence.

[8] Michael Kempster, for Cassell, submitted that historians were entitled to paint pictures "warts and all", and maintained that the words complained of were both not defamatory and substantially true.

However, he cautioned the jury against awarding exemplary damages simply because they think that "he [Irving] is not a very attractive young man".

The appellants argued that on the evidence presented at trial, their conduct did not fall within Lord Devlin's second category as set out in Rookes v Barnard, and thus no exemplary damages could be awarded.

Defendants in civil cases were liable to be punished through exemplary damages, without the benefit of the safeguards that exist in criminal courts, such as the heightened burden of proof.

In Rookes v Barnard (1964), Lord Devlin severely limited the circumstances under which exemplary damages could be awarded.

The Judicial Committee of the Privy Council later endorsed the Australian High Court's rejection of Rookes v Barnard.

The three judges all concluded that the defendants' conduct fell into Lord Devlin's second category in Rookes v Barnard, and that therefore the jury was entitled to award exemplary damages.

Lord Denning, who gave the main judgment, began by noting that both sides in Rookes v Barnard accepted that juries could award exemplary damages for libel.

I say this primarily because the common law of England on this subject was so well settled before 1964 – and on such sound and secure foundations — that it was not open to the House of Lords to overthrow it.

Lord Reid criticised exemplary damages as anomalous and opposed their extension to any class of case which was not covered by previous authority.

[18] Judicial interpretations of Rookes v Barnard in the light of the House of Lords' decision in Broome v Cassell still remain contentious, as seen in Kuddus v Chief Constable of Leicestershire Constabulary.