Thorley v Lord Kerry (1812) 4 Taunt 355

Key point

  • In an action for libel, where publication is in permanent form as distinct from slander, there is no requirement for the claimant to prove that he has in fact suffered any damage as a result of the publication in question

Facts

  • Thorley (C) received a letter from Lord Kerry (D) that read: “[Thorley,] under the cloak of religious and spiritual reform, hypocritically, and with the grossest impurity, deals out his malice, uncharitableness, and falsehoods.”
  • C brought a libel suit against D
  • The Court of Kings Bench found in favour of C and ordered damages; D appealed

Issue

  • Whether an action will lie for these words so written, notwithstanding that such an action would not lie for them if spoken

Held (Court of Common Pleas)

  • Judgment affirmed, ordered to recover a compensation for some damage supposed to be sustained by the C by reason of the libel

Lord Mansfield C. J.

Distinction between libel and slander

  • ‘So it has been argued that writing shews more deliberate malignity; but the same answer suffices, that the action is not maintainable upon the ground of the malignity, but for the damage sustained. So, it is argued that written scandal is more generally diffused than words spoken, and is therefore actionable; but an assertion made in a public place, as upon the Royal Exchange, concerning a merchant in London, may be much more extensively diffused than a few printed papers dispersed, or a private letter…. These are the arguments which prevail on my mind to repudiate the distinction between written and spoken scandal; but that distinction has been established by some of the greatest names known to the law.’: p. 371

Current case

  • “[T]hough the words impute no punishable crimes, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt, and ridicule; for all words of that description an indictment lies; and I should have thought that the peace and good name of individuals was sufficiently guarded by the terror of this criminal proceeding in such cases. The words, if merely spoken would not be of themselves sufficient to support an action”: p. 370-71

Commentary

  • Lord Mansfield C. J. was unsatisfied with the distinction between written and spoken defamation and was critical of it for the reasons he cited in p. 371 but he felt bound by case law to uphold the distinction