#6709 - Cassell V. Broome - Commercial Remedies BCL

Cassell v. Broome

Facts

The fate of the PQ17 convoy is one of the most publicised, as well as one of the most tragic, naval operations of World War II. The evidence showed that it had been written about many times, notably by Captain Roskill, R.N., the official naval historian, and by the late Mr. Godfrey Winn, whose book was said to have sold half a million copies.

It is sufficient to say that the primary cause of the disaster flowed from an order to the convoy to scatter, which made the ships in it an easy prey to the aircraft and submarines by which they were attacked. This order to scatter was issued by the Admiralty in Whitehall and was due to a faulty appreciation by the naval staff, in particular, as is now known, by the then First Sea Lord himself, that the German battleship Tirpitz was at sea, and to a decision, also by the then First Sea Lord, to take the responsibility for the order on himself rather than leave the decision to the discretion of the naval officers on the spot. The naval officers on the spot, including Admiral Hamilton in command of the cruiser squadron, and Captain Broome, had no option but to obey, and the convoy was thus left to fan out on individual courses covering a vast area of sea.

So far there can be no controversy. But the two naval officers, rightly considering that the order to scatter must denote the approach of a superior hostile surface force, sailed west in company. Admiral Hamilton was acting under precise orders from the Admiralty. Captain Broome was not. Captain Broome had proposed and Admiral Hamilton accepted that he should put himself under command of the admiral commanding the cruisers. That this decision was courageous there can be no doubt. What has been subsequently disputed was whether it was as wise as it was certainly brave. Some have thought that it was no more than the inevitable reaction of gallant and experienced naval officers to the threat of surface action. Others have thought that its effect was to remove from the area of the convoy the only naval elements, which might have countered the U-boat and air attacks, and thus to contribute to the extent of the convoy's losses. Which of these two views be correct it is not appropriate here to discuss. But what is relevant to the present appeal is that those who criticised the decision had previously fastened the responsibility on Admiral Hamilton. It was one of the distinctive features of Mr. Irving's book (which it may have shared with a German work with whose author he had collaborated) that it attempted to place responsibility for the withdrawal of the destroyers entirely or mainly on the shoulders of Captain Broome.

From the start Captain Broome contended that the passages in the book relating to himself which it is not necessary to set out at length were defamatory.

From the commencement of the trial it was contended for Captain Broome that notwithstanding the limitations of Rookes v. Barnard [1964] A.C. 1129, he was entitled to "exemplary" or "punitive" damages.

Holding

Decision of the Lower Court

Not content with all this, all three members of the Court of Appeal went further still and, besides declaring Rookes v. Barnard to have been decided per incuriam and ultra vires, proceeded to say that it was "unworkable," and in the meantime, therefore [1971] 2 Q.B. 354, 384 "judges should direct juries in accordance with the law as it was understood before Rookes v. Barnard" which the court considered, to use the phrase of Lord Denning M.R. as "settled."

Multiple defendants – only the lowest figure to be awarded

I think the effect of the law is exactly the opposite and that awards of punitive damages in respect of joint publications should reflect only the lowest figure for which any of them can be held liable. This seems to me to flow inexorably both from the principle that only one sum may be awarded in a single proceeding for a joint tort, and from the authorities which were cited to us by Mr. Parker in detail in the course of his argument.

….only one sum can be awarded by way of exemplary damages where the plaintiff elects to sue more than one defendant in the same action in respect of the same publication, and that this sum must represent the highest common factor, that is, the lowest sum for which any of the defendants can be held liable on this score.

Was Rookes v. Barnard wrongly decided?

The judgment of the Court of Appeal was based on the simple proposition that the decision in Rookes v. Barnard [1964] A.C. 1129 so far as it affected punitive or exemplary damages was made per incuriam and without prior argument by counsel and that judges should in future ignore it as unworkable, and that, in directing juries, judges of first instance should return to the status quo ante Rookes v. Barnard as if that case had never been decided at all.

I have already said, and will not repeat, what I think about the propriety of the Court of Appeal in doing this at all, and the appropriateness, in view of the consequences to the parties, of their doing it in this case. I now proceed to consider how far their opinions are correct. I make no complaint of their view that Rookes v. Barnard clearly needs reconsideration by this House, if only because of the reception it has received in Australia, Canada and New Zealand.

Whatever else may be said, the Court of Appeal's judgment is based on one assumption which is plainly incorrect. This assumption is, to quote its most characteristic expression on the lips of Lord Denning M.R., [1971] 2 Q.B. 354 , 379: "Prior to Rookes v. Barnard, the law as to exemplary damages was settled." In point of fact, it was nothing of the kind.

Terminology – “Exemplary damages” as opposed to “punitive damages”

As between "punitive" or "exemplary," one should, I would suppose, choose one to the exclusion of the other, since it is never wise to use two quite interchangeable terms to denote the same thing. Speaking for myself, I prefer "exemplary," not because "punitive" is necessarily inaccurate, but "exemplary" better expresses the policy of the law as expressed in the cases. It is intended to teach the defendant and others that "tort does not pay" by demonstrating what consequences the law inflicts rather than simply to make the defendant suffer an extra penalty for what he has done, although that does, of course, precisely describe its effect.

Rookes v. Barnard does not extend exemplary damages to new torts

Having rejected the theory that Lord Devlin's speech can be pushed aside as having been delivered per incuriam, I hope I may now equally dispose of another misconception. I do not think that he was under the impression either that he had completely rationalised the law of exemplary damages, nor by listing the "categories" was he intending, I would think, to add to the number of torts for which exemplary damages can be awarded.