JOCKEY SEEKS DAMAGES

Evening Star, Issue 23324, 21 July 1939, Page 11

JOCKEY SEEKS DAMAGES

ACTION AGAINST ' STAR' COMPANY RACING COMMENTARY INSERTED INJURY TO CREDIT AND REPUTAT'ON ALLEGED Claiming that Ills credit and reputation as a professional jockey had sulfered by reason of a commentary that appeared lu the 4 Kveuing Star or May I on his riding of Foxlove at th 6 South Canterbury Jockey Club’s meeting. George Barclay to-day brought an action against the ‘ Star ’ Company, seeking £5Ol as damages. The case was heard in the Supreme Court beiore Mr Justice Smith and a jury. The conipany’s defence to the action will be that-there was no libel in the reference and that it was fair comment. Mr G. J. Herd, of Invercargill, appeared for Barclay, the company being represented by Mr A. C. Stephens, with him Mr G. C. Cruickshank, of Invercargill. RACING WRITER’S COMMENT. The matter to which Barclay took exception was published in the ‘ Racing Notes ’ of the ‘Star.’ and was as follows: Foxlove, Unlucky. The unlucky horse at the South Canterbury Jockey Club’s meeting last week was Foxlove. To be beaten out of the money each day bv the narrowest of margins in exceptionally fast times showed him to be a galloper well above the average, and! good enough to take his place in any company. In the Timaru Cup he was unlucky at the start through no fault of his own or his rider. This cost him several lengths, and when lps rider decided to make up this lost ground he did so on a turn and 1 outside the big field. Before reaching the turn for homo he had run up into third place and secured a place next the rails for a few strides. Instead of waiting next the rails until he got into the straight Barclay pulled him out again and he made the final bend' on the outside of The Sandwichman and Spartan. In a few strides Foxlove was in front, but when tackled just inside the distance he did not have enough left in reserve to hold off his challengers. He demonstrated his gameness by fighting on well, and Settlement just beat him in the last stride for third money. In the Teschcmaker Handicap on Saturday Foxlove jumped out well and was one of the lenders on the sharp bend out Of the straight, 'file Sandwichmaii and Swordstick were setting a very solid pace out in front, and Foxlove was going well next the rails and about a length and a-half behind this pair. Up till reaching the approach to the home turn Barclay had done everything right, then he made the same mistake- as in the Cup. and went up on the outside of these, two horses as they made the turn into the straight, instead of waiting next the rails until the straight run home was entered. Again he ~-madoehis .Tu.il too goon, and in a blanket-finish, with heads only between. the first four, Foxlove was fourth.' There was no d ; sgrace in being beaten in such fast time each day, and better handled he ■ could not.have missed winning one " of these two races. After the first day's display it was surprising that the stable apprentice was not put up. as in Saturday's race a.n allowance could have been claimed. JOCKEY’S CLAIM. Barclay claimed that this was published “ falsely and maliciously.” The ‘ Star,’ he contended, meant, and was understood to mean, that he was incompetent and not fit to be trusted or employed to ride Foxlove; that ho 'ost these two races by improper riding and gross mismanagement of the horse; that he did not conduct himself’properly as a jockey in those races ; that he did not handle the horse in a iroper or efficient manner; that, but for his riding, Foxlove would have won one or other of the races; that bis riding was not worthy of an apprentice. COUNSEL’S ADDRESS. Opening the case for the plaintiff. Mr Reed said that Barclay, who lived it Invercargill, rode extensively throughout the South Island. The first, day. of the Timaru races was held on ApriJ 27. and on this and the second day' of the mooting lie had the mount on Foxlove. On both occasions he was fourth. Counsel then read the ‘ Evening Star’s ’ comment upon his performance in the races. When Barclay road this comment he' felt aggrieved and that he had been libelled, and he now said that, by reason of this publication. ho had been brought into odium, ridicule, and contempt. He said that the ‘Star’ had defamed him. Counsel wont on to give legal definitions of libel, and said the plaintiff would set out to prove that the words used were injurious to him in bis calling. Against that, the ‘ Star ’ would say that none of the words bore, or were understood to bear, or were cap- | able of bearing, the meaning alleged by | Barclay. The company would also claim 1 that the words were not defamatory that they did not injure him, and that they were true in substance and in fact j It would be contended by the company j that this was fair comment made in good faith and without malice. Counsel here pointed out that no newspaper was entitled to go further in such comment than the ordinary fairminded man in the street would go. “ If a man comments fairly on facts which he considers to bt; true, then ha is perfectly justified, and he is protected against action for defamation said Mr Reed. “ But there are one or two things he must protect himself against Ho must show the facts are true. For instance, he cannot make mis-statements, or invent them, and comment on them. I should add that i the matter to be commented upon I should be matter of public interest—and I don’t imagine that in New Zen- | land there could be any matter ofjnore i public interest than horse racing. | His Honour; T don’t suppose there j will be any great doubt about that. Mr Reed. . Continuing, counsel said that it must be established that the facts as given by the ‘ Star ’ in its commentary upon these races were true facts. > These races were over in a Hash, and if comments were made the facts must be stated correctly. If the company could not satisfy the jury that it did give the correct facts, then its right to comment disappeared. But. even assuming that the facts were true, the onus was on the company to show that the words used were fair in the circumstances j Counsel emphas-'sed that a newspaper , bad no more latitude than an ordinary | subject in .such comment. “ It must

prove the facts and establish to the satisfaction of the jury that what it says on those facts is such as would come from a fair and reasonable person,” added Mr Reed. “It is for us to prove that the company has not been fair. It is apparent that there will be a serious contest as to the true facts on the running of those races. Barclay will deny that the ‘ Star's ’ facts are correct, and it is for the jury to ascertain who is telling the truth. Even if the ‘Star’ did toll the truth, wo will set out to show that the comment it made was not fair. Evidence will be produced to show that the position was contrary to that given by the paper—the evidence of the jockey, an owner of the horse, and the trainer, all of whom were .present at the meeting, with expert evidence from other sources.” JOCKEY’S STORY. Barclay, in evidence, said he was a married man and depended on his calling for a living. He had been a jockey for about 11 years, and before that served a stable apprenticeship for four years. Foxlove, he said, was jointly owned by Messrs Brice and Cundali. and was either four or five years old. He had ridden it (and won) at Riverton and twice at Timaru, “ The weather conditions were good for the Timaru Cap, and Foxlove was carrying about 8.4,” said Barclay. “ The stipendiary steward drairs places for us. There were about 14 horses in the race, and I was about No. S out from the rails. 1 did not get a very good start, being wedged in between two horses, and could not jump out.” Barclay marked the starting place of the race on a plan'of the course. Both races were of a mile and a-quarter. “ 1 was one of the last to leave the barrier after being \vedged in,” he said. “ Just before going round the bend I got a good run through the field, some of the horses having left a gap, and I got up into about seventh position. Spartan and The Sandwichman were in front of me. about three lengths away. There were also three horses—Rabble. Dictate, and Nighthawk—in front of me. and I decided to go round them to get up to the leaders. I passed them and was then lying about half a length behind Spartan and The Sandwichman. holding that position until the straight entrance was reached. I went Up alongside them, and the three of us entered •the straight just about neck and neck. From then on Spartan and The Sandwichman were beaten, which left mo in front. However. Rabble came up and patsed me On the outside, and then Dictate went past, and Settlement just heat me by a head on the post for third. You do pot gain much advantage by going for the fence in the run down the straight, and 1 may have come down it one horse off the fence. The only time I was text to tho rails was when the two horses stopped in the straight. On entering the straight 1 was ‘ jiggling ’ Foxlove along And keeping him up to it. The race was run in a track record of 2min 3see.” During the day Barclay was engaged to ride Foxlovo in the Teschcmaker Handicap on the sacond day. On this day the weather was perfect. There were about 11 horses in this race, and on this occasion he drew No. 2 position. It was very much the same field. Witness described the progress of the race, saying he got a good start. He was one of the first three out of the straight, Swordstick and The Sandwichman being with him. A little bit further on he dropped back behind them on the fence. The Sandwichman opened up a gap of two lengths from Swordstick, with Foxlove a length behind again. Barclay then decided to move up on the outside of Swordstick. As he did so Swordstick’s rider also decided to go up. so he (Barclay! dropped back to the fence again. He stayed there until the home turn was reached. At that stage the horses behind were starting to catch them. Barclay could see that if he stayed where lie was he would bo pocketed, and that the horses in front would carry him back through the field when they stopped. So he wont to the outside of Swordstick and The Sandwiohrann. Then Rabble went past him on the outside, with Dictate, also on the outside, going up, too. Thermidor, Im thought, got.through on the rails. The race finished with Rabble first. Dictate second, and Thermidor beating Foxlove bv a head for third. In this race Foxlove was carrying lib more than on the first dnv. Tim time on the second day was onefiftli or two-fifths of a second slower than on the first day. “ Foxlove was beaten because the other horses were Superior on the day,” said Barclay “He has won one race since, at n meeting held at Ashburton, the rider on that occasion being an apprentice. W. Ellis, who is a son of the trainer. Foxlovo is a little light in the mouth, and is inclined, if a jockey holds on too hard, to throw his head up. Later Foxlove ran third at Timaru again, the race being in slow time.” Barclay was cross-examined! by Mr Stephens, and referred to the passages in the ‘ Star’s ’ comment to which he objected, and cited the facts that he said were wrong. He agreed that some of the passages expressed were “ more a crack ” at witness than others, especially the reference that an apprentice should have ridden the horse on the Saturday.

At this stag.' "r Stephens pointed out. that the wo. in the first sentence of the statemcni o; claim. “ and all the had luck was in the riding,” did not appear in the ‘ S(ar’» ’ report. Mr Reed said that it had already been indicated that the ‘ Southland News ’ was also to be proceeded against by the plaintiff, the paragraph appearing in that paper also, but with this additional clause. Ho asked that it be deleted from the statement of claim.

Mr Stephens said he had no objection 11 that course being taken, and the presage was accordingly deleted. Further cross-examined by Mr Stephens, Barclay said he had not approached the writer of the paragraph to make a published apology or a retraction, nor had his solicitor. He rode for any owner who employed him, but he had a number of regular engagements with owners in the South Island. He did not receive regular wages, and his annual earnings were sometimes £2OO, and on other occasions £260 and £3OO. according to tho number of winning horses he rode and the number of his riding engagements. The court adjourned until this afternoon.