ACTION FOR DAMAGES

Evening Star, Issue 23325, 22 July 1939, Page 13

ACTION FOR DAMAGES

JOCKEY'S CLAIM AGAINST ‘STAR* CASE FOR THE DEFENCE M LIBEL, AKD COMMENT WAS FAIR Lengthy evidence "'as heard in the Supreme Court yesterday afternoon and evening in the case in which George Barclay, an Invercargill jockey, is claiming £5Ol from the ‘Evening Star Company on the grounds that, by reason of a commentary upon his riding of Foxlove in the Timaru Cup and Teschemaker Handicap at L the South Canterbury Jockey Club’s meeting at the end of April, his credit and reputation as a jockey had been injured. The case for the defence opened m the afternoon, and on behalf of the ‘ Evening Star ’ it was submitted that there was no libel in the published matter, and that it was fair comment in the public interest. The ‘ Star strongly refuted any suggestion that there was any impropriety or inefficiency on the part of Barclay, but argued that it simply charged him with malting an error of judgment in his handling of Foxlove, who was fourth’ in both races. . , , Mr Justice Smith and a jury heard the case. Mr G. J.. Reed, of Invercargill, appeared for Barclay, the ‘ Star ’ Company being represented by Mr A. C. Stephens, with him Mr G. C. Cruickshan'k, of Invercargill. PART-OWNER’S TESTIMONY. Albert Cundall, butcher,, of Invercargill, a part,-owner of Foxlove, said that he bred the horse which was about five years old. He had had nine or 10 horses. Foxlove had had about seven wins in the past year. Barclay had ridden him on three occasions, winning the main race at Riverton on the last day. Witness saw both races at Timaru, and had a perfect view of them. He described in detail these races, and substantially corroborated Barclay’s account. In the cup event on the first day Foxlove was tiring in the straight. It was after this race that witness engaged Barclay to ride Foxlove again on the second day, when the horse had 11b more to carry.' Since then Foxlove had started_ in five races and had won one, at Riccartori. On that occasion he was ridden by Ellis, an apprentice. At Timaru again he finished third twice. At Wanganui he was fourth. The Timaru Cup, on April 27, was a very fast race, about 2sec outside a New Zealand record. Witness agreed with the ‘ Star ’ that Foxlove, was unlucky, on his first day’s running, hnt disagreed with the statement that “ when his rider_ decided to make up lost ground he did so on a turn and outside the big field.” Witness said Foxlove passed seven horses in going to the turn, and went up through the centre of the field. He denied the ‘ Star ’ statement that Foxlove was on the rails, but agreed that he did not have enough in reserve to hold off his challengers. “ I-was perfectly satisfied with Barclay’s riding on both days,” •aid Cundall. Mr Stephens: What instructions did you give Barclay ?—None. I do not give riders instructions. Witness agreed that a horse on the outside had a greater distance to cover than one on’the inside. In the Teschemaker Handicap Barclay did not need to pull Foxlove out. He veered off to get past the leaders. To Mr Reed. Cundall said that Foxlove did not like being close to the rails. At Wanganui he drew No. 1 position and stumbled as he went off. On a further occasion whep he drew a •imilar position he again failed to go away well. DID NOT LIKE RAILS. Frederick William Ellis, of Invercargill, the trainer of the horse, said that tne horse had been under his care for about 18 months. Ho was in the trainers’ standi at the’Timaru meeting and had quite a good view of the two races.ln the Cup Foxlove was left at the start j which was liable to happen to any horse. /Ip answer to His Honour, Ellis explained that “ the distance ” commonly referred to in racing was a little over a furlong from the winning post. Ellis added that whenever Foxlove hadl been on the rails he had been beaten. _ He had won most of his races by coming on the outside of other horses., Some horses were frightened of the rails. Witness said he was quite satisfied with Barclay’s riding. When Foxlove won at Riccarton (ridden by witness’s son) the race was run at a slower pace. Ellis disagreed with the ‘Star.’ version of the Cup race, saying that Foxlove got a clear run through the middle of the field. Barclay did not pull the horse out from the rails because he was not there then. He made the final bend on the outside of Spartan and The Sandwichman. Witness agreed that Barclay went on the outside of these; horses again on the second dlay. A jockey was assumed to bo a more expert person than a stable apprentice. Mr Stephens: There may be stable apprentices who are better riders than .’some jockeys?—Yes, that is possible. Witness added, to Mr Stephens, that if an apprentice had been put up on Foxlove an allowance of 51b could! have been claimed. Barclay had not ridden Foxlove since the Timaru meeting. Witness did not recall a conversation with Mr Saunders at Invercargill, but might have spoken to him. He might have said) to Mr Saunders that Foxlove was nnluckv not to win at Timaru. *

DEFENCE OPENS. Opening the case for the Air Stephens stated that the plaintiff claimed that the company had published matter defamatory to him, out of which, he contended, certain special meanings could be taken. As a result of these Barclay claimed that he had been injured in his • reputation and in connection with his occupation as a jockey. And ho was entitled to the same protection of his reputation as any other member of the public. The defence to the action would, in the first place, bo that there was no libel contained in the references. “ The words used are not defamatory at all and do not reflect on Barclay in any way at all,” said counsel. “ There is no charge or suggestion of trickery or dishonesty. All that we say is that Barclay made a mistake, or error of judgment, on two occasions.” The plaintiff relied on innuendoes, continued Air Stephens, but in point of fact the ‘ Star ’ made absolutely no charge of incompetency, inefficiency, or impropriety against him. Tho reference in the statement of claim to the suggestion that his riding “ was not worthy of a stable apprentice ” was apparently based on this sentence in the ‘ Star’s ’ comment: “ After the first day’s display, it was surprising that the stable apprentice was not put up, as in Saturday’s race an allowance could have been claimed.’* From tins sentence Barclay evidently jumped to the conclusion that it was stated that his riding was not as good as that of a stable apprentice. But the words were immediately qualified by tho reference to the claiming of an apprentice allowance, and that was the reasonable reading that would be taken of it. It was definitelv not suggested that he was not as good as a stable apprentice. The point was that if his owners had put up an apprentice they could have secured a olb allowance, which was important. It was open to the plaintiff, of course, if the jury decided that the words did not bear the special meanings, suggested, to say that in their natural moaning the words were defamatory, but this was denied by tho company. All the company had done was to say that Barclay had made a mistake. Surely that could be done without the company, or a person for that matter, laying themselves open to on action for damages. A further defence was that the published matter was fair comment on a matter of public interest. The defence must, in the first place, justify the statements of fact. The_ ‘ Star ’ said that Barclay went outside two other horses, a statement that was quite true. Counsel then spoke of the disentanglement of facts and expressions of opinion. An expression of opinion must he fair, reasonable, and honest. Counsel emphasised that there had been no suggestion of dishonesty, and nor did the references go beyond tho bounds of fair criticism. No comment was fair if it were based on statements that were not true, but in this case the facts were true. Counsel concluded by saying that already there were conflicts of evidence on the plaintiff’s side. RACING WRITERS IN BOX. William Alfred Saunders, racing writer of the ‘ Evening Star,’ told the court that he had had over 40 years’ experience in racing, and had for 10 years ridden in races. He. had been secretary to several clubs, handicapper to eight or nine, and had also acted as a starter and advisory steward. His work involved attendance at race meetings and, apart from his work for the ‘ Star,’ he wrote for the Christchurch- ‘ Press.’ the ‘Southland Daily News,’ and ‘ Sporting Life.’ At some meetings he had an assistant, to whom he dictated an account of the race, but at lesser -meetings himself jotted down the positions of the horses at various stages in his race card. At the Timaru meeting he witnessed the races from the Tress box in the stewards’ stand, using glasses. He wrote his reports on the running of the race immediately after each race. Witness then read his description of the two races. He produced his race card, in which were his analytical notes, and detailed the positions of the horses from the start of the two races. The statements of fact given in the reports, he said, were true. .Witness traversed his comments, making particular reference to the extra ground necessarily covered when a horse was pulled to the outside. These expressions of opinion lie gave represented bis honest opinion, which he was_ paid to give. It was his honest opinion that Foxlove could have been better handled. The horse did not stay oh in the Cup, but on the second day he was one of the three horses making the running all the way, but was asked to make his effort a long way (about two furlongs) from the post. Witness considered his comment fair and reasonable. Foxlove had been running very prominently in his races since New Year, and had been solidly backed. It had a particularly big following from Southland. Witness stated that it was the duty of a sporting writer to give the public the full facts of a horse’s performance at a meeting, and to let people know if he was beaten on his merits, or for some other (reason, such as a bump or indifferent handling. It was very desirable that the public should be informed why a horse failed, because the trainers or owners might be accused of not running the horse to win. • Witness explained to counsel that if a horse covered this trade 3ft out from the rails it would run an extra 6 2-7yds, 12 4-7yds if it were 6ft out (the distance two horses would occupy), and 18 6-7yds if it were 9ft nut from the rails. ’ , „ , Air Reed: Foxlove wasn’t fast enough for .Rabble or Dictate ?—No, that is not so. Rabble is a good horse and has won several races this season, but not as many as Foxlove. William Matthew Hayes, racing writer of the ‘ Otago Daily Times,’ said he had been employed in that capacity for 37 years. Ho also represented the * Dominion ’ in Wellington, the ‘ New Zealand Herald ’ and ‘ Weekly News in Auckland. Witness detailed his experience of handicapping in several centres. He was present at the Timaru races, and described what happened in the two events in question. Witness considered that a 51b allowance to I 1 oxlove on the second day would have made a material difference, as on the first dav there were only heads between the first four horses. Authorities abroad gave it that such an allowance of 51b was equal to five lengths. On the second day witness thought that Barclay pulled out too soon on the turn. He should have waited until they straightened up for home. Mr Reed: Wasn’t Foxlove beaten by superior horses?—T wouldn’t say that. Hugh Edward Wilcox, a bank manager. of Timaru, also described the two races. In the cup Foxlove covered so much extra ground that when he was in the straight he had run his rare Jockeys were frequently criticised for injudicious riding in various papers. To Air Reed: Barclay went right round the field in the hack stretch, and altogether covered a tremendous lot of extra ground. Foxlove was beaten by superior horses? —No, by superior riding perhaps. The court adjourned until this morning.