CLAIM FOR LIBEL

Otago Daily Times, Issue 23868, 24 July 1939, Page 4

CLAIM FOR LIBEL

VERDICT FOR JOCKEY JURY AWARDS £llO DAMAGES MOTION FOR NEW TRIAL ADJOURNED NEWSPAPER CRITICISM HELD UNFAIR A verdict that the expressions of opinion exceeded limits of fair criticism and an award of £SO damages to the plaintiff was the finding of the jury which heard the action for libel brought before Mr Justice Smith in the Supreme Court by an Invercargill jockey, George Barclay, against the Evening Star Company, Ltd. It was alleged that a commentary published in the racing notes of the Evening Star of May 1 on' the performances of the horse Foxlove at Timaru damaged the reputation of the jockey, and Barclay claimed £5Ol damages. After considering its verdict for an hour on, Saturday, the jury found that the words used in the criticism were defamatory, that the facts on which the criticism was based were true, and that the expression of opinion did exceed fair comments

Mr Gordon J. Reed, of Invercargill, who appeared for Barclay, moved for judgment according to the verdict, but Mr A. C. Stephens, who, with Mr G. C. Cruickshank, of Invercargill, appeared for the defence, moved for a new trial on the ground that the jury’s finding on the third issue had no evidence to support it. His Honor adjourned the motions sine die and said it would probably be next week before counsels’ argument could' be heard. Counsel’s Addresses The evidence in the case was completed on Friday evening, and when the court resumed on Saturday morning, Mr Stephens addressed the jury first. Again the only charge made in the Evening Star comment •gainst Barclay was that he had made errors of judgment. Criticism of jockeys’ handling of horses in races was frequent in this country, and the criticism was not of dishonest practices or trickery but that they had not ridden good races. If this action were successful, then a criticism that a man in any "port had made a mistake or an error of judgment would lay the person who wrote or said it open to an action for defamation. Another result would be that sporting writers would not be able to give the public accurate information of the ’ running of a race and would not be’ able to explain why any horse might have failed in a race. . , Counsel spoke of the special meanings drawn by the complainant from the commentary, and said that the issues in this respect had been reduced to three. The plaintiff alleged the meaning of the comment was that he did not handle the horse Foxlove efficiently, and it was a matter for the jury whether to say the jockey made a mistake was to make a charge of inefficiencynaturally two quite different things. u . The reference to putting up a stable apprentice for the second race, counsel suggested, did not carry the meaning drawn by Barclay, that “the riding was worthy of a stable apprentice. The comment in this respect was qualified and explained by the statement that, if an apprentice had been put up, a substantial allowance could have been claimed. Counsel said also that the plaintiff had rushed into court to claim damages without even approaching the Evening Star Company for an apology. Then, when he did appear in court, he took particular exception to comment, •that “ alt the bad luck was in the riding,” a statement that did not appear in the Evening Star coxn-'-mentary. No Inefficiency Suggested Mr Stephens argued that there was no suggestion of impropriety in the commentary, that there- was no suggestion of inefficiency, even in any .particular races, but merely that the jockey had committed two errors of judgment. “If this article is actionable,” counsel said, “ then critics will not be able to comment .on any individual performance in any sport.” - The, second line of defence was .that the criticism was fair comment in the public interest. Mr Stephens said that before comment could be fair it had to be based on correct facts,, and he reviewed the evidence to show that the Everting Star critic’s facts were correct. The Only Conclusion The only conclusion that could be drawn from the commentary, Mr Reed submitted, was that Barclay had ridden 'inefficiently and that but for his inefficient riding, Foxlove must have won one of these two races. If the jury were convinced of that, did it not injure the jockey in his calling? The defence had asked the jury to read the criticism as comment on two errors of judgment. “It is something much more than that,” counsel said. “It means that Barclay rode a rotten race:” His Honor: By “ rotten ” you are not suggesting anything improper? Mr Reed assured the court that . there was no suggestion of impropriety against the newspaper or the writer or in any way against the criticism. He insisted that the commentary could mean nothing other than that Foxlove was inefficiently ■ridden. “A newspaper doesn’t need to say that a jockey is inefficient to attack his reputation,” Mr Reed saidi “It needs only to say that he rode an inefficient race. The Evening Star said that Barclay rode two inefficient races. It ".aid that but for Barclay’s riding of th horse, Foxlove must have won one race. It is easy enough to ride a race from the grand stand cr the press box, but it is a different matter to be on a horse in a fast-run race." ,

Jockey or Apprentice Mr Reed examined the evidence to show that the Evening Star’s writer’s facts were not right and that Barclay’s story of the race, the story of a jockey in the race, was much more likely to be correct. On the question of the suggestion that an apprentice should have been put up on the second day so that the weight allowance could have been claimed, he emphasised that It was the handling of the tradesman Barclay which had ot Foxlove into a winning position in the straight. Was there any guarantee that an apprentice jockey would have .ridden into the same position? It there were no difference between jockeys and apprentices and a weight allowance to apprentices is c. so much value, we would find apprentices being given all the mounts and the jockeys unable to get mounts.” counsel said. No Imputation of Impropriety

In his summing up to the jury, his Honor said he had ruled that the words under examination in this case were not capable of any imputation of impropriety, but that they were capable of the imputation that Barclay was not an efficient jockey in those two races. There was no suggestion of any improper motives in the whole case. His Honor reviewed the facts as they were put forward by each side, and said that the only real difference between them concerned the start of the Timaru Cup- He discussed “fair comment,” and remarked that there was nothing violent or exaggerated in the words of the article. On the

subject of damages, his Honor reminded the jury that the claim for £5Ol was brought on the assumption that the words “ and all the bad luck was in the riding” were included in the Evening Star comment. Those words were not in that commentary. “ Jockeys are like wrestlers, for example,” he said. “ They offer themselves for proper criticism and are expected to stand criticism.” He discussed the fact that the newspaper had not been approached for any apology, and added that there had been no malice proved or suggested in the evidence. So far as injury to Barclay’s reputation was concerned, there was the evidence of the part-owner of Foxlove and the trainer that they were quite satisfied with Barclay’s riding. Apparently, he had suffered no injury there. The jury retired at 12.40 o’clock, and returned with its verdict at 1.40