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

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

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

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

nmistakable terms that they rejected the book preci-

ly because it was libellous. The response of Cassells

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

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

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

Barnard

was not inconsistent

with earlier decisions of the House.

The Guardian,

24 February, 1972.

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