Szalatnay-Stacho v Fink

 

Szalatnay-Stacho v Fink

TORTS; Defamation: CONFLICT OF LAWS

KING’S BENCH DIVISION

HENN COLLINS J

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

19, 20, 21, 22, 23, 28 NOVEMBER, 7, 19 DECEMBER 1945

Libel – Privilege – Absolute privilege – Official communications on State matters – Level of such communications – Conflict of laws.

Conflict of Laws – Libel – Privilege – Official communications on State matters.

The defendant, who was chief military prosecutor in the Czechoslovak army, forwarded to the Military Office of the President of the Czechoslovak Republic,

then in England, a number of written statements, by Czechoslovak soldiers, concerning the activities of the plaintiff while Czechoslovak diplomatic

representative in Egypt. In a covering letter he formulated against the plaintiff, charges of serious criminal offences, of gross disloyalty to his country and of

being wholly unfit to be employed in the Czechoslovak diplomatic service. In an action by the plaintiff for libel it was contended on behalf of the defendant

that the communication was absolutely privileged either as being a step in the proceedings of a military tribunal or as being an act of state, and, in the

alternative, that the defendant acted without malice on an occasion of qualified privilege:—

Held – (i) As the communication had nothing to do with any disciplinary matter and did not touch or concern any matter over which any military tribunal had,

by Czechoslovak law, any jurisdiction, it was not a step in the proceedings of a military tribunal.

􀂭 303􀀉

(ii) passing as it did at a lower level than that between Ministers of the Crown it would not, in English law be absolutely privileged.

Chatterton v Secretary of State for India applied.

(iii) By the comity of nations the court should extend to the communication the same protection as the Czechoslovak courts would afford, and as no

action would lie in those courts against the defendant, a state official acting as such, the communication was absolutely privileged.

Hart v Gumpach applied.

Notes

It is well established that absolute privilege from proceedings for libel, where the document in question is an act of state, does not exist where the

communication passes between persons at a lower level than that of ministers. It was indicated, however, in Hart v Gumpach that it is contrary to the comity

of nations, and therefore against the public interests of this country, to entertain a suit involving an inquiry into reports made by an officer in the service of a

foreign state to the Government of that State, provided that such communications are entitled to absolute protection by the law of that State. In this case it is

proved as a fact that the document would be so protected by Czech law, and the judge accordingly holds that the defence of absolute privilege succeeds, by

virtue of the principle laid down in Caldwell v Vanvlissengen (1851), 9 Hare 415, the headnote of which is as follows: “If in any case, the rights of foreigners

out of their own country are governed by their own laws, it is not by force of those laws themselves, but by the law of the country in which they may be,

adopting those laws as part of its own law for the purpose of regulating such rights.”

As to Absolute Privilege of Official Communications on State Matters, see Halsbury, Hailsham Edn, Vol 20, p 468, para 568; and for Cases, see Digest,

Vol 32, pp 111, 113, Nos 1428, 1429, 1444.

As to Privileged Occasion, see Halsbury, Hailsham Edn, Vol 20, p 846, para 568; and for Cases, see Digest, Vol 32, pp 110, 111, Nos 1426–1420.

As to Application of Foreign Law, see Halsbury, Hailsham Edn, Vol 6, p 195, paras 235, 236; and for Cases, see Digest, Vol 11, pp 307–309, Nos 9–17.

Cases referred to in judgment

Chatterton v Secretary of State for India [1895] 2 QB 189, 32 Digest 111, 1428, 64 LJQB 676, 72 LT 858.

Hart v Gumpach (1873), LR 4 PC 439, 32 Digest 112, 1444, 42 LJPC 25.

Action

Action for libel. The facts are fully set out in the judgment.

F W Beney KC and J Foster for the plaintiff.

G O Slade KC and Arthian Davies for the defendant.

Cur adv vult

19 December 1945. The following judgment was delivered.

HENN COLLINS J. The plaintiff is a Czechoslovakian national, and complains of the publication in England by a fellow national of defamatory matter,

charging the plaintiff with serious criminal offences and of gross disloyalty to his country, and with being wholly unfit to be employed in the Czechoslovak

diplomatic service. The charges relate to a time when the plaintiff was the Czechoslovak diplomatic representative in Egypt. It is not material to particularise

the charges made against him any further because there is no plea of justification in this action, which proceeds upon the footing that none of the charges are

well-founded. The publication is admitted, and the sole defence is privilege, either absolute or qualified.

The matter complained of takes the form of a letter, with its enclosures, addressed by the defendant, who was the Chief Military Prosecutor in the Czech

army—a position which corresponds roughly with our Judge Advocate General—to the Military Office of the President of the Czech Republic. The letter

transmitted a number of written statements from several Czech soldiers touching the activities of the plaintiff in Egypt while he was upon diplomatic service

there. By far the greater part of those statements consists of hearsay, but a small part of them deals with matters within the knowledge of those making the

statements.

The covering letter was in these terms. It is headed with letters which in the Czech language indicate “Confidential”, and is dated 17 November 1941:

‘Re Dr. Szalatnay-Stacho—accusation, [and then there is a reference to enclosures]. The Military Office of the President of the Republic, London.

All England Law Reports 1936 - books on screen™

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Preamble

The General Prosecutor received on several occasions information from members of the Czechoslovak Army in England regarding the activity of the

Czechoslovak Envoy in Cairo, Dr. Szalatnay-Stacho. The above-named being a civil person, the General Prosecutor could not institute criminal

proceedings and has, therefore, ordered administrative examinations 􀂭 304􀀉 of all persons who could elucidate the question. The contentions of

Corporal Milos Kuna, which are supported in particular by the statement of Lieutenant Colonel Josef Bartik as regards the opinion of the French and

English Intelligence Service of the above-named Czechoslovak Envoy, are so grave that the General Prosecutor considered it his duty to bring the

matter to the notice of the President of the Republic. The Envoy, Dr. Szalatnay-Stacho is accused of the following … ’

and then follow four numbered paragraphs each of which sets out one or more sections of the Czechoslovak criminal law which it is alleged have been

contravened. I do not propose to read those paragraphs nor the documents which are fully set out in the statement of claim.

Whether the statement that the plaintiff “is accused of” the crimes set out in the numbered paragraphs is to be taken as the defendant’s formulation of the

offences which the statements tend to support, if they are accepted as true, or whether it is to be taken as a statement of charges made by the defendant, is

immaterial upon the question of absolute privilege, with which I now propose to deal.

Absolute privilege is claimed for what may conveniently be called the “Dossier” either as being an act of state, or as being a step in the proceedings of a

military tribunal. If I am to judge the communication by our standards, then in my view it is neither an act of state, nor a step in the proceedings of a military

tribunal to which the protection of absolute privilege would attach. It was not a step in the proceedings of a military tribunal because this communication had

nothing to do with any disciplinary matter, and did not touch or concern any matter over which any military tribunal had by Czech law any jurisdiction; and

this privilege is conferred fo the preservation of military discipline and administration. I think the defendant’s letter of 17 November 1941, which is the letter

complained of, and his letter dated 22 March 1944, set out the position very fairly. It was because, as military prosecutor, he had no jurisdiction, that, rightly

or wrongly, he took the step he did, and reported to the office of the President.

Still less, perhaps, do I think the dossier would be protected as an act of state. In my judgment that protection is afforded only to communications passing

at a higher level, so to speak, than this one. I take the passage in Fraser on Libel, 6th Edn, p 197, as my standard. It was approved in Chatterton v Secretary of

State for India ((1895) 2 QB 189, at p 191), in these terms, by Lord Esher:

‘I shall not go through the authorities which have been cited. In all of them the law seems to have been stated to the same effect, and it seems to me

to be accurately summed up in FRASER ON THE LAW OF LIBEL AND SLANDER, where he says (6th Edn., p. 197), after stating that no action lies

in respect of a defamatory statement in a report made in the course of military or naval duty. “For reasons of public policy the same protection would,

no doubt, be given to anything in the nature of an act of state, e.g., to every communication relating to state matters made by one minister to another, or

to the Crown.” I adopt that paragraph as stating the law correctly.’

There is no authority, so far as I am aware, which indicates that communications passing at a lower level than those between Ministers require this

exceptional protection.

But that does not dispose of the question of absolute privilege, because I find that in Czech law, which for me is a question of fact, this communication

could not have founded any action, civil or criminal. I am not quite sure how far the experts in law who have been called before me differed upon this

question, if at all, but if and so far as there was any difference I accept the categorical statement of Dr Hartmann that the provisions of the Imperial Decree of

1806, No 758, make such an action as the present inconceivable in Czechoslovakia, because the defendant was a state official, and acting as such. The fact

that he had by Czech law, no official cognisance of the matters in hand is not, I think, a material consideration upon this aspect of the case. If he was, in fact,

exceeding his official duty, and in some respects he certainly was, the plaintiff’s remedy is to call in question the excess by some other form of procedure. In

passing I may mention that the plaintiff appears to have done this, and without success. All the circumstances in which the defendant acted, and all the

criticisms of his action had been put to Dr Hartmann, and his answer, to which I have referred, was given in the light of those circumstances.

􀂭 305􀀉

That raises the question whether by the comity of nations, His Majesty’s courts should extend to communications such as this, passing between Czech

nationals, on Czech affairs, the same protection as their own domestic courts would afford. It is, of course, only by comity that protection could be afforded,

even to the acts of state of a foreign government, for we, here, have no direct interest in the good government of any foreign power, however friendly—but

equally, of course, we have an indirect interest; and it has been indicated in Hart v Gumbach ((1873) LR 4 PC 439, at p 465), that in some circumstances it

may be against the public interests of this country to entertain a suit involving an inquiry into reports made by an officer in the service of a foreign state to the

government of that state, and that one of those circumstances would be the fact that such a communication would be protected in the foreign state. That, as I

have found, is the case with this communication.

It is proper in this case to apply the doctrine which the Privy Council thought it might be proper to apply in the very circumstances which have arisen

here. If the comity of nations is ever to be applied, it should surely be applied where the document in question was published in this country only because the

foreign government, being our allies, were our guests while their unhappy country was occupied by our common enemy. I, therefore, think I ought to apply it,

and to hold that this dossier is absolutely privileged.

The fact that by the general Czech law no action would have lain in Czechoslovakia at the suit of the plaintiff against the defendant, even if he had not

been a state official, for lack of pecuniary loss, or special damage, as we should call it, has, of course, no bearing upon the question of absolute privilege, and I

have disregarded it in this relation.

That really disposes of the action, but in case it is carried further, I think I ought to express my view upon the question of qualified privilege, and malice.

As I understand the argument for the plaintiff, there are two grounds upon which I ought to hold that the occasion was not privileged. First, that there was no

duty, right or interest in the defendant to make the communication, or if there was, that there was no corresponding duty, right or interest in the recipient to

receive it. And, second, that extraneous matter was introduced which went beyond anything which the duty, right or interest, if there were any, could

reasonably require.

If and so far as this second ground lies apart from the question of malice, I do not think there is anything in it. The statements which the letter covered

may not have been adequate to support all the charges which the defendant’s letter formulated, and the charges may be referred to or based upon a wrong and

misread paragraph of the laws. These are, no doubt, matters material on the question whether malice should be inferred, but I do not find one word in the

documents which does not touch or concern the matter in hand. So far, therefore, as concerns excess of the occasion, if I may so label this contention, I hold

the occasion privileged.

The first ground, the absence of reciprocal duty, right or interest, presents more difficulty, for though the question whether an occasion is privileged is

one of law, its foundation in this case, namely, the duties, rights and interests of sender and recipients, rests upon Czech law—a question of fact of for

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

me—upon which there was no little difference of opinion between the experts. It is never easy to project one’s self, so to speak, into another system of law,

and foresaking all notions derived from English law, to surrender one’s mind to it without reserve. And it is the more difficult when the system refers all

duties, rights and interests to the text of formal written laws, and such appears to be the Czecho-Slovakian System. If there is any residual outside the written

law I am told it is small, and for the present purposes immaterial.

I must, therefore, address my mind to the written law, and while avoiding all temptation myself to construe it, or rather the English translations of it,

resolve as best I can the questions of fact which arise from the differing views of the experts. Dealing, then, for the moment solely with the question of

reciprocal duties, rights and interests, I find that the defendant had a duty, as a citizen, which was certainly no less because of his official capacity, to hand on

the information contained in the statements attached to his covering letter of 17 November 1941.

The defendant was under a duty to hand on this information to authority— 􀂭 306􀀉 there is no definite article in the Czech language—and there was

strong controversy as to who, in the then existing circumstances (for there was not, in November 1941, a full complement of Ministers) was indicated by

“authority.” The conclusion I have come to is that while a Minister is primarily indicated the President of the Republic falls within the description; and that

the defendant, though he could have performed his duty in another way, was discharging an obligation in a legitimate way by addressing himself to the

President.

There was controversy also as to whether the President had an interest in receiving the communication. I think this was in substance the same

controversy as arose about the meaning of “authority.” It was said, among other arguments, that the President, since he had no executive authority in criminal

matters, except to pardon or remit sentences, was not “authority” within the meaning of the law in question; but as I find that he was, I accept Dr Hartmann’s

opinion that the President could at least transmit the matter to an appropriate department of state, and had an interest in receiving it for that purpose, if for no

other. It seems to me that since the defendant discharged his duty in addressing the President, the President must have had a correlative interest or duty to

receive the information. Whether, having received it, the President had or had not thereupon any duty or executive power, does not seem to me to touch the

question.

“But,” the plaintiff contends, “even if the President was a proper recipient of the dossier, the Military Office or Chancellery of the President was not.”

There is nothing, in my judgment, in this contention. The Office or Chancellery is merely the President’s secretariat, and the division of it into civil and

military branches, merely a matter of internal office management. The Office, Chancellery or Secretariat, by whatever name it should be called, is the alter

ego of the President for the receipt of matters directed to the President in his official capacity, and the inevitable channel for all official communications to

him. The defendant’s letter was, in fact marked “confidential” so as to insure that it should go directly to responsible officers, and not to some mere clerk in

the office. I, therefore, hold the occasion to have been one of qualified privilege.

Lastly, as to malice. In the sense of any personal ill-will, it is out of the case. The parties had never met or had any dealings. The malice must, therefore,

be of some synthetic kind, if I may use the expression. When all is said and done, the word “malice” indicates a state of mind, and the question I have to

answer is: Given the occasion, was the defendant using it in singleness of mind in pursuance of his duty, or was he not? That is a question of fact, to be

deduced from all the circumstances.

Much of the criticism of the defendant’s conduct was to the effect that in his official capacity he had nothing whatever to do with offences by civilians,

and that to use the machinery which his office provided for getting further statements from a witness, was to travel altogether outside his province. But one

must remember that the information came to him in his official capacity, probably because the informants were soldiers, and that thereupon it became

incumbent upon him to hand it on to a proper quarter. If in those circumstances he used the machinery at his disposal to see whether the witnesses adhered to

their stories, and to see whether they could be checked by others, ought one to infer some indirect motive? His doing so may have involved a technical

mistake, but it seems to me to have been a most natural one for a man in the defendant’s position to have made, and I am satisfied it was made in all honesty of

purpose.

Again, it is said that the defendant formulated charges which the material before him did not warrant. In the first place, I do not read the covering letter

as doing more than formulating the charges which, in the view of the writer, the attached statements tended to support. He may have been wrong in law in

thinking that the evidence, if accepted, proved or tended to prove offences under the laws which he cited, and, indeed, in one or more instances I think he was

wrong, but again I think he was quite honestly mistaken, and that he was neither adding to nor attempting to add to the facts which the statements disclosed.

It was urged, too, that the statements disclosed were rumour, tittle-tattle, and that to formulate any charge upon them was reckless. This argument has

some attraction for a mind trained in a system which rigidly excludes 􀂭 307􀀉 hearsay; but that is not the Czech system. Hearsay is as freely admitted in

Czech law as direct evidence. Its weight is a matter for the tribunal before whom it is adduced. It would, therefore, have been quite wrong for the defendant

to disregard or exclude matter grounded upon hearsay to which any degree of credence could have been given; and the more so because he had taken some

steps to check it. He was not adjudicating, but forwarding materials upon which others might or might not act, and in doing so I find no indication that the

defendant was actuated by any indirect motive.

The other criticisms of the defendant’s conduct, from which I was invited to find malice, were really variants of those I have already dealt with, and I do

not propose to set them out in further detail. First and last I have to ask myself whether or not the defendant was acting in good faith in the sense I have

already indicated; and I am convinced that he was.

In the result, therefore, there will be judgment for the defendant with costs.

Judgment for the defendant with costs.

Solicitors: Dehn & Lauderdale (for the plaintiff); Blyth, Dutton & Co (for the defendant).

R Boswell Esq Barrister.

[1946] 1 All ER 308