The Gazette 1972

Law Lords Critical, but Captain Broome keeps £40,000 Award

Captain John Broome, commander of the escort vessels in convoy PQ 17, yesterday heard the Lord Chancellor and six Law Lords dismiss an appeal by the publishers Cassell and Company Limited, against an award to him of £25,000 punitive damages for libel. Captain Broome, who was 71 yesterday, lives at Chelsea. The decision—by four to three— means that Captain Broome will receive the £25,000 in addition to £15,000 compensatory damages also awarded to him. There was no appeal against the £15,000 award. Yesterdays decision ends a legal battle lasting three and a half years by Captain Broome. The action con- cerned the book " The Destruction of PQ 17," by Mr. David Irving. Captain Broome complained that the book accused him of cowardice. The original award against Cassels and Mr. Irving Was made by a jury in February, 1970, after a seventeen- day hearing. The Court of Appeal, after a hearing of nine days, dismissed appeals against the awards, in which Cassels disputed only the amount of punitive damages. The Lords hearing took thirteen days. Costs are estimated at £130,000. Mr. Irving did not a ppeal to the Lords. Cassells have issued a writ against him claiming £100,000. Costs will not be finally deter- mined until this case against Mr. Irving has been decided. All the Law Lords decided that the £40,000 total a ward was more than they would have awarded. But it Was not so excessive that they should change it. But three held that the trial judge, Mr. Justice Lawton, had lot adequately directed the jury on damages. Lord Hailsbam's judgment The Lord Chancellor, Lord Hailsham, recalled the fete of the convoy in 1942, when all but 11 out of more than 35 merchant vessels bound for Russia were sunk °y German planes and U-boats. The convoy scattered, °n Admiralty instructions in the mistaken belief that an a ttack by a battleship was imminent. Lord Hailsham said the first publishers selected by Mr. Irving refused to publish the book on the ground that it was " a continuous witch hunt of Captain Broome " and " reeked of defamation." It was impossible to say how much of that was known t° Cassells but the first publishers warned Cassells in u nmistakable terms that they rejected the book preci- Se ly because it was libellous. The response of Cassells Wa s "either flippant or cynical." The jury was perfectly entitled to infer that Cassells had " calmly calculated that the risk attendant on Publication did not outweigh the chances of profit." Quite deliberate libels He agreed with Lord Justice Phillimore who had Sa id in the Appeal Court that the jury must have found feat " these grave libels were perpetiated quite delibera-

tely and without regard to their truth by a young man and a group of publishers interested solely in whether they would gain by the publication of this book. They did not care what distress they caused." Lord Hailsham said it was a "heinous offence against public decency". But Lord Hailsham said it was with very great hesi- tation that he had decided that the verdict should stand. He would have awarded possibly less than half £25,000. But he could not say that " no 12 reasonable jurors could have come to a different conclusion from myself." Punitive damages anomalous Lord Reid said he thought the whole doctrine of punitive damages anomalous and indefensible- " But we must accept it and make the best we can of it." He thought the £25,000 punitive damages much too large " but with considerable regret thought it would be con- trary to law if the verdict were not upheld. Costs had already reached a figure which many laymen would call scandalous." Lord Morris of Borth-y-Gest thought the total of £40,000 "huge" but not beyond the limit to which a reasonable jury could go. Lord Kilbrandon said that although he would have assessed the damages " at a much smaller s um" he could not say the award should not stand. Lord Dilhorne said he thought the trial judge had made a most serious omission in addressing the jury on punitive damages. He thought the £40,000 award out of all proportion. Lord Diplock thought the jury must have been con- fused as to how punitive damages, if any, were to be assessed. He did not think the jury were adequately directed on that question. Even if he thought the jury were given an adequate direction, he would have set the award aside and substituted a total award of £20,000. House of Lords decisions to be accepted There was also criticism of the Appeal Court. It had said, Lord Hailsham observed, that Rookes v. Barnard decided by the House in 1964 was wrongly decided, and not binding on the Court of Appeal. That course had imposed upon the litigants the " inevitable burden of further costs " in arguing broad issues of law unnecessary for the disposal of their dispute. "The fact is, and I hope it will never be neces- sary to say so again, that in the hierarchical system of courts which exist in this country it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers," Lord Hailsham said Rookes v. Barnard was not inconsistent with earlier decisions of the House.

The Guardian, 24 February, 1972.

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