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Colonial Cases

LInstitution St Joseph and Mother St Philomene v. Clark and Kingsmill, 1896

[civil procedure]


L'Institution St Joseph and Mother St Philomene v. Clark and Kingsmill

Supreme Court for China and Japan
10 June 1896
Source: North China Herald, 12 June,1896



10th June.


   The Chief Justice sat in Chambers for the purpose of hearing two applications on behalf of the plaintiffs, for whom Mr. H. S. Wilkinson appeared, the defendants being represented by Mr. W. V. Drummond, instructed by Mr. Gedge, of Messrs. Johnson, Stokes and Master.

   Mr. Wilkinson said he had to make two applications, the first being under Rule 32 of the Rules of the Supreme Court, upon a summons to the following effect:

   Let all parties concerned attend the Judge in Chambers on Wednesday the 10th day of June,1896, at 11 o'clock in the forenoon on the hearing of an application on behalf of the Plaintiffs for an order that the conclusion of the Plaintiffs' petition be amended so as to read:

   "And the Plaintiffs claim 50,000 Taels damages."

   And that notice of the amendment be given to the Defendants by the service of such order on the defendants or their Solicitors.

   Mr. Drummond said the application was absolutely unnecessary, as it was perfectly open to the plaintiffs to make an amendment, such as the one now asked for at any time. It might be made in open Court during any stage of the case, or even after a verdict had been obtained. There was a case quite recently in the Times' law reports and he had another case to show that after a verdict had been given the claim for damages could be increased. There was no necessity in the present case to take out a summons which added to the expenses.

   His Lordship - There is no additional expense in this case, because it will be simply granted, without costs.

   Mr. Wilkinson said the next application was for an order "that the defendants do on or before the 10th June,1896, file an answer to the several material allegations contained in the plaintiffs' petition." The application was made under Rule 48.

   "Where the defendant does not answer or puts in an answer amounting only to a general denial of the plaintiffs' claim, the plaintiff may apply by summons for an order to compel him to answer specifically to the several material allegations in the petition; and the Court if such allegations are made briefly, positively, and distinctly made, and it thinks that justice so requires, may grant such an order. The defendant shall within the time limited by such order put in his answer accordingly and shall therein answer the several material allegations in the petition, either admitting or denying the truth of such allegations seriatim as the truth or falsehood of each is within his knowledge (as the case may be) stating as to any one or more allegations that he does not know whether such allegation or allegations is or are true or otherwise. The defendant so answering may set up by such answer any defence to the suit, and may explain away the effect of any such admission therein made by any other allegation of facts."

   The learned counsel said it was clear that in a case of this sort it would be improper to go to trial and leave the answer open inasmuch as by the rules of the Court the defendant would then be in a position at the hearing of the suit to set up any answer he liked with the permission of the Court, and it was desirable that there should be some answer put in. As to the time he did not press the date because if his Lordship made an order he was quite prepared that any reasonable time for putting in an answer should be allowed, but he submitted there ought not to be any unreasonable delay on the matter.

   Mr. Drummond said that in the first instance he had only to ask his Lordship to give at least a week for the filing of an answer. As a matter of fact the matter had only been placed in his hands on the previous day and he had just had time to glance through the petition and summons and he had not even seen the materials upon which the case was founded. No doubt there had been some delay in filing an answer, but his Lordship was aware of negotiations which had been going on between the parties with the view of effecting a definite and complete settlement of the matter. These negotiations came to nothing, and another offer was made which was set out in the following affidavit:

.  .  .  

I, Herbert Johnson Gedge, of Shanghai, in the Empire of China, make oath and say as follows:

   Acting as Counsel for the Defendants in this suit and in pursuance of instructions received from them, I wrote on the 9th of June last to Mr. H. S. Wilkinson, the Plaintiffs' Counsel in this suit, the letter in the words and figures following, and I on the same day delivered the letter to Mr. H. S. Wilkinson.

4, Balfour Buildings,

Shanghai, 9th June,1896

L'Institution St. Joseph against J. D. Clark and T. W. Kingsmill,

   Dear Sir, - In order to settle the unhappy dispute without litigation and as our client had not nor ever had a desire to injure either L'Institution St. Joseph or anyone connected therewith, they are prepared to unreservedly withdraw all imputations which they have incautiously been the medium of publishing against the Plaintiffs, to apologise for the same in manner and terms agreeable to the Plaintiffs, and (though aware that money is not the Plaintiffs' object) to pay them the sum of Tls. 200 and costs to be taxed.

We are. &c.

   On the 10thof June I received the letter from Mr. H. S. Wilkinson which is now produced and sworn to me and marked A. Sworn at Shanghai in the Empire of China this 10th day of June,1896.

Herbert J. Gedge.

Before me, &c.

Shanghai, 10th June.

L'Institution St. Joseph v. J. D. Clark and T. W. Kingsmill.

   Dear Sirs, - I have laid before my clients your letter of yesterday, proposing certain terms for the settlement of this case, but my clients consider that the offer comes too late to admit of its being accepted.

   It is now a considerable time since the letters and articles complained of were published by the defendants, and during all that trine they have made no public withdrawal of the serious imputations on the character of my clients which they have publicly made, and my clients feel that the vindication of their character and that of their Institution now requires that the case should be proceeded with without any compromise.

I am, &c. (Sd.) H. S. WILKINSON.

   Therefore, in the belief that the matter would be settled, an answer had not been filed.

   Mr. Wilkinson said that the correspondence regarding this offer was made without prejudice, with the exception of the letter which had been read, and which was the first official offer and not without prejudice.

   Mr. Drummond said he did not think there was anything on the file which actually explained the delay, but it was a matter which was known to Mr. Wilkinson, his Lordship, and all the parties that there had been very good reasons for supposing it would not be necessary to put an answer on the file, and as long as that view prevailed it was desirable not to complicate matters by any further pleadings, but now a settlement had not been arrived at and it became necessary to file an answer, and what he would ask his Lordship to do was to allow a week in order that he (Mr. Drummond) might consider the nature of the defence to place on the file. As far as the defendants were concerned they had made an offer to settle the dispute without litigation, and they were prepared to withdraw any imputations which they had made, and apologise for the same in manner and terms agreeable to the plaintiffs, and they were willing, beleiving that a monetary consideration was not the desire of the plaintiffs, to pay Tls. 200 and the costs of the case. That appeared to be about as compete and fair an offer as was possible.

   That offer was made because they thought the question of money was not one the plaintiffs were considering, and because they believed that it was desirable in a country like this that a matter of this sort should not be dragged unnecessarily into Court and more or less dirty linen washed in public, which, whatever the result of the case might be, would be believed by tens of thousands of people in this country as more or less founded on fact. This was a state of things which the defendants, as proprietors of a newspaper, were anxious to avoid.  The complaints of the plaintiffs were that no apology had so far been made, but in regard to that he would remark that it was useless and unnecessary to rush into print with an apology which might not be accepted as sufficient, whilst the defendants were prepared to settle the actual terms of it in conjunction with the other parties or their representatives, and if necessary express it in open Court.  The question of delay in apologising could only affect the matter of damages, and reduced it to a question of dollars and cents, a consideration which he did not think was the one the plaintiffs were anxious to entertain or rest their case upon. He thought it would be a pity that for such an idea as that the case should be carried into Court and fought out. Even if they succeeded it would only be a slight addition to any amount of money the plaintiffs might recover. As he had said, he thought the offer made was a reasonable and ample one, and the plaintiffs must be held responsible if they insisted upon taking the case into Court. He had only to ask that his Lordship would allow seven days for the filing of an answer.

   Mr. Wilkinson said he thought ample time had been given to the defendants, but as it was customary where counsel had only been recently instructed to grant an extension, he would of course leave it to his Lordship. With regard to the other points Mr. Drummond had referred to -

   His Lordship thought Mr. Wilkinson need not go into them.

   Mr. Wilkinson said all he wished to remark was that there was a good deal to be said on the other side.

   His Lordship said he would make an order allowing seven days for the filing of an answer.

   Mr. Drummond - Costs to be costs in the case?

   His Lordship - No, I think you must pay costs; there is no reason why the thing could not have been ready.

    Mr. Drummond said the delay had been caused by the negotiations, as he had mentioned.

   His Lordship - No, you must pay the costs.


Source: North China Herald, 24 July, 1896




Shanghai, 20th July

Before Sir N. J. Hannen, Chief Justice, and Messrs. F. Mann, W. Roberts, H. Wilcockson, J. H. Craven, and R. Macgregor, Jury.




   This was an action for libel. Mr. H. S. Wilkinson and Mr. H. P. Wilkinson appeared for the plaintiffs, the defendants being represented by Mr. W. V. Drummond, with whom was Mr. E. Sharp and Mr. Gedge (Messrs. Johnson, Stokes and Master). 

   Messrs. A. R. Burkill and G. R. Rodgers, who had been summoned as Jurors, not being present when their names were called, were each fined $25,

[Not transcribed.]

His Lordship, in summing up the case said - Gentlemen of the jury, I do not propose to trouble you for any length of time.  The case as it now presents itself to you is a fairly simple one.  There has been a libel - a gross libel - published. That is admitted. There is no defence whatever to it except the statutory one which has been pointed out to you by Mr. Drummond. 

   A great deal has been said both on one side and on the other about bringing this case into Court. I do not think either I or you have much to do with that in realty.  Litigants have a right to come into Court and if they choose to bring cases into Court, however inconvenient it may be to us, and whatever may be the result, we have not much to do with that. It may make us alter our judgment of them as people of the world, but in reality it does not affect the merits of the case, and therefore all you have to consider is, whether the defence, such as it is, has been made out.

   I will once more repeat to you what the Act says

In an action for libel contained in any newspaper or other periodical publication, it shall be competent to the defendant to plead that such libel was inserted in such newspaper or other periodical publication without actual malice.

Now the first thing you have to consider is whether it has been proved, or you can infer from the evidence that has been given before you, that there was any actual malice on the part of the defendants in the publication of this. And you must also see that it was not published without gross negligence.  If it was published either with malice or gross negligence then this defence does not at avail them.  It is for you, having heard the whole evidence, to say whether there was actual malice or gross negligence in the matter, but I think I may be permitted  to go this length and say that if a person published a thing about which he knows nothing at all, although he may think that the person who informs him, is a credible person, and he chooses to believe that the persons who are libelled  are wicked and all sorts of things which are bad, on the mere assertion of somebody who he thinks will be able to prove it when the time comes, it seems to me you might possibly infer that that person had acted with either malice or gross negligence.

   The Act goes on to say, and before the commencement of the action - there was no apology published before the commencement of the action - or at the earliest opportunity afterwards he inserted  in such newspaper a full apology for such libel. Now, you have got to say whether, at the earliest opportunity after the suit was instituted an apology was made. With regard to that it is for you simply to judge. I cannot give you any directions with regard to that at all.

   I think I ought to say this, that with regard to the nature of this apology, what Mr. Drummond said was perfectly true; an offer was made by the defendants to publish such an apology in the papers as the plaintiffs dictated, , and, therefore, as Mr. Drummond pointed out, if that apology as not deemed sufficient by the plaintiffs, there are only the plaintiffs and their advisers to be blamed for that. 

   Then, it seems to me, when you have considered those points, there remains to you only the question of damages, and both counsel have so fully commented upon  it that there is very little left to me to say. All I need to remind you of is that what have been termed vindictive damages have also been termed exemplary damages, and you must not be frightened by somebody having affixed to those damages a word, a name, which does not sound pleasant to one's ears. All it means is that you are not simply to take into consideration the money damage which may or may not have been proved, but you can give something extra. Of course you must not give damages which are simply vindictive on your part. They must be proportionate to what you consider to have been the libel which was published by the defendants, and if you think that the Tls. 200 which were offered by the defendants was a sufficient sum, why give it. If, on the other hand, you think there was something more than Tls. 200 wanted, then give such damages, reasonable damages, as you consider ought to be given.

   But whether you give large damages or small, or whatever is the result of this, this is certain, that the Institution St. Joseph has, as Mr. Drummond said, stood for many years upon its reputation. Whether you give large or small damages, we all know, and everybody knows in Shanghai, that that institution has done infinite good. We know that any allegations that have been made against it are repudiated by the respectable foreign members of the community, and we know that whatever may be the result of this case no harm can come to the Institution St. Joseph.

   Gentlemen of the jury, you will retire to consider your verdict.

   The Jury retired at 11.33 a.m. and returned into Court after an absence of thirteen minutes. When they had answered to their names,

   The Clerk of the Court asked - Have you agreed upon your verdict?

   The Foreman (Mr. F. Mann) - Yes.

   The Clerk - Do you find for the plaintiff or the defendant?

   The Foreman - We find that gross negligence has been proved, and the apology was insufficient, and we award the plaintiffs Tls. 1,000 damages, with costs. We would suggest that a full apology, dictated by the plaintiffs' legal adviser, be published in all the papers in which the libel appeared.

   His Lordship entered judgment in accordance with the finding.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School