ALLEGED LIBEL. A QUESTION OF PRIVILEGE.

Evening Post, Volume LXXV, Issue 41, 18 February 1908, Page 7

ALLEGED LIBEL. A QUESTION OF PRIVILEGE.

MOTION TO STRIKE OUT CASE. Before Mr. Justice Chapman, in Chambers to-day, Mr. Bunny, on bohalf of the defendant in the action pending for alleged libel brought by Edward John Searl against Thomas Patrick Lyons, a claim for £1000 damages, moved that tho case should be struck* out on the grounds, (1), that the action was frivolous and vexatious and an abuse of the process of the court ; (2) that the statements complained of in the statement of claim, if made, wore made at a meeting of the creditors of the plaintiff held by tho Official Assignee under the authority of the Bankruptcy Act and upon the examination on oath of the plaintiif, and were privileged, and were made, if at all, by tho defendant as a creditor of the plaintiff upon examination in respect of matters in which the defendant had a direct interest with the other creditors of tho plaintiff. The statements alleged to have been made by tho defendant at the meeting of creditors on the 28th November were traversed by Mr. Bunny, who stated that Mr. Lyons was present on that occasion in three different capacities. First, he was present as a partner of the plaintiff liab't; for the debts incurred by the latter ; secondly, he was present at the special request of the OMcial Assignee in the interests of creditors to give special information in his capacity as partner ; thirdly, ho was present aa a ci editor. The question was whether the report wis bona fide and made in a public court. Counsel referred to several cases to support his contention that the statements alleged to havo been mado by his client, if made, were privileged. A bankrupt was liable to be fined for perjury on evidonce given at a meeting of creditors. The proceedings before the Official Assignee were really court proceedings. Counsel submitted that it was an extraordinary thing to make a creditor at a meeting of creditors a defendant in an action for slander on statements alleged to have been made by him at a public examination, perhaps not with proper authority, but with perfect honesty according to tho views of creditors. It would bo lamentable, submitted tho counsel, that a debtor, in nddition to letting in a creditor, should submit him to a libel action of £1000 damajces also. At the meeting of creditors the statements made without interference on the part of the Official Assignee were simply bristling with points of the kind described. The reports published in tho press illustrated the amount of freedom of speech allowed at these meetings. Mr. Dunn, for the plaintiff, submitted that the Official Ascignee, under the Bankruptcy Act, was not a judicial, hut only an administrative officer, unable to act without reference to the court. Again, Mr. Lyons w?.s not present at the meeting in tho capacity of a creditor. His statements wre made outsido |.he question of the bankruptcy altogether, on a motion of his own to purchase the property of the bankrupt. Mr. Lyons was therefore in the position of a purchaser. Tf there wa3 a privilege, the privilege was only qualified, as the statements were not made on oath. All the facts wero in dispute and the burden of proof was on the defendant. All cases dealing with tho question of jurisdiction showed that the power of tho judge to strike out cases, or dismiss actions should be very sparingly exercised. He submitted that the question was exceedingly difficult, and should not be * determined solely on a motion to dismiss the action as frivolous. A witness in court was not on the same footing as a creditor at a creditors' meeting. The bankrupt would have no protection at all, if creditors wore allowed to make all shorts of allegations outside- th& matter of examinations. Mr. Bunny submitted that if/ the creditor had a qualified privilege only, the Official Assignee would also havo only a qualified privilege, which was not so in reality. Mr. Lyons was probably more deeply interested in the bankruptcy thajl any other person present He was not only a creditor, but a partner also. His statements were privileged. His Honour aaid ho would take time to consider the important question involved.