LIBEL ACTION

Evening Star, Issue 23335, 3 August 1939, Page 10

LIBEL ACTION

JOCKEY'S CLAIM AGAINST ‘STAR’ MOTION FOR JUDGMENT FOR DEFENDANT Before His Honour Mr Justice Smith in the Supreme Court to-day, an application was heard for a motion for judgment for the defendant in the case in which George Barclay claimed damages of £5Ol against the ‘Evening Star’ Company, the grounds on which defendant based the application being that the jury’s verdict was not supported by any evidence. It will be recalled that the jury found that the facts contained in the ‘ Star’s ’ references to the riding of Barclay at the South Canterbury races were true, but that the words used by the paper’s racing writer were defamatory, and that his comment exceeded the limits of ,fair criticism. In this respect the jury took exception to the words “ better handled.” . Mr Justice Smith submitted the following issues to the jury:—(1) Do you consider the words used to be defamatory? (2) Are the statements of fact contained in the article true? (3) Do the expressions of opinion in the comment exceed the limits of fair criticism ? (4) What damages should be awarded? The jury gave an affirmative answer to the first three questions, and assessed the damages at £SO. Mr G. J. Reed appeared for the plaintiff, and Mr A. C. Stephens for the defendant. » . Mr Stephens contended that the jury, having found that the statements of facts were true, had deprived plaintiff of his only ground for contending that the comment was unfair. The plaintiff produced no statement of fact to suprport the innuendo and was reduced to relying on the article as it. stood, and by the verdict of the jury he was now reduced .specifically , to the words “ and better handled as an expression of opinion beyond the limits of fair comment. Even though the facts were true, actually it might be unfair on the grounds of corrupt or dishonourable motives. Counsel declared that there was no suggestion of _ corrupt or dishonourable motives in the article. There was no suggestion that the words were other than the honest expression of opinion of the writer, and the reading of the whole of the article showed the fairness of the writer’s mind. Mr Stephens pointed out that the comment did not even say the horse was badly handled —it only said that it could have been better handled. There was hardly ever a race run in which some jockey was not subjected to criticism, and the question arose if this comment were' libellous how was the public to know if a horse were beaten on its, merits? _ • Quoting figures to indicate the general interest taken in racing, Mr Stephens said that it had been estimated that, apart from the amount invested on the totalisator, the amount invested outside the totalisator was two or three times that which went through the totalisator. , “ You don’t expect me to take judicial notice of that fact,'” drily remarked his Honour. He added that all he needed to be told was that it was a matter of public interest}, and he knew it occupied a considerable amount of space in the public Press. ; Mr Stephens said that if the comment were held to-be -libellous it would not be possible for anyone to say that a performer in the realm of professional sport made, a mistake, or to say that a singer sang. flat. This simply reduced the law of libel and slander to a farcical limit..

Mr Reed said ■ that ■ his friend envisaged newspapers having to curtail their activities very considerably. The foreman of the jury had said that the words “ and better handled ” were what they objected to. Counsel submitted that the foreman,_ must have read the words in. their context/ “ and better handled he could not have missed winning one of these two races.” This was something said about a jockey which hit directly at a man s livelihood, and this had always been carefully preserved. . . His Honour said that, the jury had found the critic’s statement of fact to be correct. It had . been said that the jockey had gone up on the outside of these two, horses as they made the turn into the straight—that too much ground had been covered. If that were true couldn’t anybody, say that the horse could have been better handled? Mr Reed submitted that the_ words could not be divorced from their context. He contended that the onus was on the defendant to show that the comment was fair. He had to discharge that onus first of all, and counsel submitted that it was for the jury to say whether the limits of fair comment had been exceeded. In the use of the words “ and better handled He could not have missed winning one of these two races,” he submitted that defendant had made such a statement that the jockey could almost be said to be recklessly indifferent. Although the jury took exception to these words, it was not to say they did not consider the whole of the article. Counsel- quoted legal authorities at length in support of his claim, and His Honour interposed that on counsel’s arguments they would have-to determine whether horse racing was an entertainment or a_ business. Mr Reed submitted it was a business, and that as far as a jockey was concerned it was his_ business. His Honour said that as far as an actor was concerned it was his business, but he,was subject to severe comment apparently. . Mr Reed contended that the addition of the words “ and better handled he could not have missed winning one _of these two races ” was something which almost became a question of fact. # His Honour: It was the writer’s opinion. of course. Mr Reed said they submitted that the * Star ’ had put itself in such a position that it placed itself into the hands of the jury. In this case a personal attack had beqn made on the jockey—his efficiency was attacked. His Honour agreed that this was so, and he put a parallel. If a professional wrestler or boxer engaged in a bout without adequate training, and some sporting writer commenting on the position said that had he trained better he could not have missed winning the match, could that exceed fair comment? ' . Mr Reed said he would say it might. How could anyone say who might win a contest ? Counsel said he would say it was a question for the jury, subject to the direction of the judge. His Honour said that the right of fair comment was a most important and essential public right. Mr Reed was still addressing the court when the adjournment for lunch was taken.

When the case was resumed this afternoon, Mr Stephens, replying to Mr (Reed, stated that the article as published was, clearly and obviously, on the authorities, nothing more than fair comment. No case had been cited in

which judgment was given for th« plaintiff on an article or criticism m any degree as light as this. JUDGE’S COMMENT. “ I am disposed to accede to the motion forthwith, but in view of the authorities quoted I feel that I should look into them and keep my mind open until I see them,” said His Honour, in. indicating that he would reserve his decision and give a written judgment.