Constantine v Imperial Hotels Ltd

The first and main submission of the defendants was that the present action is an action on the case, that the gist of an action on the case is the damage actually suffered and proved, and here no damage was suffered and no special damage is either alleged or proved. The Statute of Westminster, 2, 1285, authorizing the writ "in consimili casu" produced the writs which were classified under the common denomination "writs of trespass on the case," and the actions on the case based on them included - certainly from very early times - the present form of action before me. This action was based on the common law and on what was termed the custom of the realm. The distinction between the writ of trespass and the writ of trespass on the case would appear to be that trespass was the appropriate remedy for the direct invasion of a right by force either actual or implied by law, and case was the remedy for a wrong in which one at least of those elements was lacking. In an ordinary trespass, in which a forcible act directly caused damage to the plaintiff's person or property, the connexion between the act and the damage was usually obvious, and the damage was presumed, but in case the damage arising from the wrongful act was the gist of the action. Indeed, it has been said by the late Sir William Holdsworth that the constant need to inquire whether the damage complained of was the proximate consequence of the act of the defendant familiarized the courts with the comparatively modern conception of the idea of negligence in law, but, although it was the general rule that damage was the gist of an action on the case and although without question the action before me is an action on the case, it is said by Sir Patrick Hastings that that rule is by no means an inflexible rule and that in certain cases, of which he says this is one, damage will be presumed and that Mr. Constantine can recover.

It is to be observed that White's case;^[4] Fell v. Knight; and Hawthorn v. Hammond;^[5] were all actions on the case, and, incidentally, an indictment may be brought, as in Reg. v. Sprague,^[6] which was brought so recently as 1891 at Surrey quarter sessions and shows that an innkeeper could be indicted, and, indeed, in that case was indicted, for not receiving a guest who was attired in what in those days was called rational dress. The great and celebrated case of Ashby v White,^[7] it must always be remembered, was itself an action on the case, and I observed in reading the very interesting argument in Howell's State Trials, vol. 14, that the Mr. Slade of that day used the very language that the Mr. Slade of this day used before me - that the action would not lie inasmuch as it was an action on the case, that damage was the gist of the action, and that no damage had been proved or could be presumed.

Reference was also made to the action for defamation, which is, of course, an action on the case, but in libel damage need not be proved. It is presumed. The action for slander is an action on the case. In certain specified cases, however, damage need not be proved, but is presumed. These matters go very far back into the history of law. In the beginning of the sixteenth century the common law courts began to take from the ecclesiastical courts most of the suits for defamation. The common law remedy was an action on the case and damage was undoubtedly the gist of the action, but the Court of Star Chamber regarded defamation as a crime, and, when the Court of Star Chamber was abolished, the law of defamation included these two separate and divergent parts derived from the common law and from the Court of Star Chamber. In slander, too, by the middle of the seventeenth century the categories that we know today so well, in which words are actionable per se had been established, the imputation of a criminal offence punishable by imprisonment, the imputation of a contagious disease, or the imputation of unfitness for carrying on a trade or profession. The first of these categories arose from an attempt to distinguish the spheres of jurisdiction of the common law courts and the ecclesiastical courts: the others, most probably, on the obvious tendency of the imputation itself to cause damage. In libel, after the Restoration, the courts held that libel was a wrongful act from which damage could be presumed, but in slander no extension of the settled categories is permitted to this day. In Jones v. Jones,^[8] Lord Wrenbury, in his speech in the House of Lords, said:^[9]

"The fact that the imputation is a gross and grievous attack upon personal character is not of itself enough. For otherwise a statute would not have been necessary to enable a woman or a girl to sue for slander upon her chastity. The imputation must be such and the state of facts such, not as that a judge would necessarily or reasonably presume or infer damage, but as that judges in the past have presumed or inferred damage. This involves a confession which I fear must be made, that the law of slander rests not upon any principle whose elasticity will admit new cases, but upon artificial distinctions. An artificial and arbitrary rule is not a principle. The plaintiff must for success bring his case within the very limited class of cases in which slander has been held actionable. He must show that the imputation is such and the state of facts is such as that a presumption of damage as matter of law has been made in the past under like circumstances. I am of course here speaking, and throughout this opinion I am speaking, of cases in which damage is not proved."

For a most exhaustive discussion of the artificial law of slander Viscount Haldane's speech in that case may be referred to.^[10] The fact, therefore, that libel is an action on the case and yet damage is to be presumed is based on the historical development of the law of defamation, as is the highly artificial position of the law of slander, and it affords me little help in the question which I have to decide today.

Reference was also made in the course of the argument, both by Mr. Slade and by Sir Patrick Hastings, to the action for malicious prosecution. It was the development of the action on the case, founded on the statutory writ of conspiracy, which gave rise to the tort of malicious prosecution. Holt C.J., defines the law in Savile v. Roberts.^[11] It is to be noted that, among other things, he laid down that the plaintiff must prove one of three kinds of damage: (1.) damage to his fair fame; (2.) damage to his person; (3.) damage to his property. The ground of the action was not conspiracy, but the damage, and as a rule no action will lie for bringing a civil action maliciously, but the bringing of a prosecution maliciously may give rise to an action on the case if special damage is proved. In Quartz Hill Consolidated Gold Mining Co. v. Eyre,^[12] Bowen L.J., said: "The reason why, to my mind, the bringing of an action under our present rules of procedure and under our present law, even if it is brought without reasonable or probable cause and with malice, gives rise to no ground of complaint appears to me easily to be seen upon referring to the doctrine laid down by Holt C.J., in Savile v. Roberts." Then he refers to the three matters which I have mentioned as to the kinds of damage. Bowen L.J., continued: "It is clear that Holt C.J., considered one of those three heads of damage necessary to support an action for malicious prosecution. To apply this test to any action that can be conceived under our present mode of procedure and under our present law, it seems to me that no mere bringing of an action, although it is brought maliciously and without reasonable or probable cause, will give rise to an action for malicious prosecution." In a passage which I have had continually before me in considering this case he said:

"Although every judge of the present day will be swift to do justice and slow to allow himself as to matters of justice to be encumbered with either precedents or technicalities, still every wise judge who sits to administer justice must feel the greatest respect for the wisdom of the past, and the wisdom of the past presents us with no decisive authority for the broad proposition in its entirety which the counsel for the plaintiff company have put forward. But although an action does not give rise to an action for malicious prosecution, inasmuch as it does not necessarily or naturally involve damage, there are legal proceedings which do necessarily and naturally involve that damage; and when proceedings of that kind have been taken falsely and maliciously, and without reasonable or probable cause, then, inasmuch as an injury has been done, the law gives a remedy. Such proceedings are indictments - I do not say every indictment, but I mean all indictments involving either scandal to reputation or the possible loss of liberty to the person, that is, all ordinary indictments for ordinary offences. In its very nature the presentation or the prosecution of an indictment involves damage, which cannot be afterwards repaired by the failure of the proceedings, to the fair fame of the person assailed, and for that reason, as it seems to me, the law considers that to present and prosecute an indictment falsely and without reasonable or probable cause is a foundation for a subsequent action for a malicious prosecution."

Mr. Slade further relied on the decision of the House of Lords in Neville v. London "Express" Newspaper, Ld,^[13] clearly an authority of very great importance. It dealt with most interesting questions about the tort of maintenance. In the middle ages the offence of maintenance was treated, as was defamation and conspiracy, both as a crime and as a tort, but in modem times it came to be regarded as a tort rather than a crime. In defamation and conspiracy the civil action was an action on the case in which damage was the gist of the action, but in maintenance it appears to have been "doubtful whether the action was not an action in the nature of trespass, in which nominal damages could be recovered." In Neville v. London "Express" Newspaper, Ld, two very closely connected questions were decided. The first was whether an action for maintenance would lie in the absence of proof of special damage, which is mutatis mutandis the question which I have to decide in the present case, and the second question, closely allied, was whether the success of the maintained litigation was a bar to the action. The decision of the majority of the House of Lords - Lord Finlay L.C., Lord Shaw and Lord Phillimore - was that the action would not lie in the absence of proof of special damage, and Mr. Slade pressed that decision on me in this case. Viscount Haldane and Lord Atkinson dissented, and Sir Patrick Hastings said that, although I was bound by the majority decision if this were a matter of maintenance, the principles enunciated by the dissentient lords were applicable to the facts before me. The dissentient lords thought that, as maintenance was admittedly illegal, the law should give a remedy in tort for nominal damages as in the case of trespass and libel since, as Lord Atkinson said, "the mere invasion of the plaintiff's legal right imports damage and is sufficient to maintain the action." If conduct be illegal, or, indeed, criminal, it does not necessarily follow that an action in tort for nominal damages will lie. If the action for maintenance is not to be regarded as an action on the case analogous to trespass, no doubt an action would lie for nominal damages, but the majority of the House of Lords treated the action as an action on the case and applied the general rule in that case. On the second question the majority of the House of Lords - Lord Finlay L.C., and Viscount Haldane, and Lord Atkinson - held that the success of the maintained litigation was not a bar to the right of action for maintenance. This is, if one may say so with the very deepest respect, in apparent conflict with the decision on the first question, for, if the maintained litigation was just and succeeded and is not a bar to the action, the plaintiff could scarcely claim anything but nominal damages, and, according to the answer to the first question, the action for nominal damages will not lie. There is a passage in the speech of Lord Finlay which I think is of importance in the present case. He said: "The action for maintenance is, in my opinion, one which can be sustained only if special damage has been occasioned to the plaintiff by the maintenance. The maintenance may be punishable as an offence, but to give a right of action the commission of the offence must have caused damage to the plaintiff. Of course, if a right has been infringed, as in Ashby v. White, where a man was deprived of his right to vote, no proof of damage is necessary. As Lord Holt expressed it, 'an injury imports a damage, when a man is thereby hindred of his right'." Lord Finlay, speaking of damages, said: "As there was no damage in the present case, I am of opinion that the action for maintenance must fail and that judgment must therefore be entered for the defendants on this head of claim. I think it would be futile to send the case down for a new trial, even if it were regarded as one in which for the maintenance of the action proof of damage is not necessary. We have all the facts before us and it is clear that, even on this view, only nominal damages could be recovered. Any verdict giving substantial damages on these facts would be perverse and would be set aside. If then the action for maintenance were to be regarded as one for the invasion of a right, to sustain which special damage is not necessary, the proper course would be to give judgment for the plaintiff for nominal damages. But, in my opinion, this head of claim fails altogether." I need not cite other than a passage from the dissentient judgment of Viscount Haldane which shows quite clearly that what he was there doing was to say that in the action for maintenance the proper principle to be applied was the principle which is enunciated by Holt C.J., in Ashby v. White. He said: "As Lord Holt showed in Ashby v. White, every violation of a right imports damage in contemplation of law. This principle applies whether the right arises out of a contract, as in Marzetti v. Williams,^[14] or out of a tort, as in Embrey v. Owen.^[15] The damage may be substantial, but may also amount to what is merely nominal." A little later, after quoting Parke B., he said: "But where the right is, as it often is, an absolute right the doctrine laid down by Lord Holt in Ashby v. White applies, and every infringement of such an absolute right gives a claim to nominal damages, even though all actual loss or injury is disproved." At the end of his opinion Viscount Haldane said: "Under these circumstances I think he was entitled to no more than nominal damages for the violation of his right, and that the jury ought to have been directed to this effect. I think that justice will be done if judgment on the claim for maintenance is entered for him for merely nominal damages, unless the jury on a new trial think that exemplary damages should be given. No direction suggesting such damages should be given." It is clear, therefore, on that case that the real point to be decided was with what class of case the House of Lords was dealing, the majority saying that it was an action founded on case, in which special damage is essential, and Viscount Haldane and Lord Atkinson saying that it was a claim which was akin to the action in Ashby v. White.

The case before me is admittedly in the form of an action on the case, but Sir Patrick Hastings' main contention was that this was a case in which the law will presume damage, and that the decision in Neville v. London "Express" Newspaper, Ld. does not affect the matter. He relied very strongly on Ashby v. White which is reported very fully in Howell's State Trials, where the contentions before the court are very clearly set out and discussed. In that case Holt C.J. said: "The single question in this case is, whether, if a free burgess of a corporation, who has an undoubted right to give his vote in the election of a burgess to serve in Parliament, be refused and hindered to give it by the officer, an action on the case will lie against such officer? I am of opinion that judgment ought to be given in this case for the plaintiff." Later comes the famous passage on which Sir Patrick Hastings relied and which was the passage cited by the dissentient lords in Neville v. London "Express" Newspaper, Ld. Holt C.J. said: "If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and, indeed, it is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal." .... "And I am of opinion that this action on the case is a proper action. My brother Powell indeed thinks that an action upon the case is not maintainable, because there is no hurt or damage to the plaintiff; but surely every injury imports a damage, though it does not cost the party one farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindred of his right."

Is the principle of that case to be applied to the facts of the present matter? In Embrey v. Owen, Parke B. said: "It was very ably argued before us by the learned counsel for the plaintiffs that the plaintiffs had a right to the full flow of the water in its natural course and abundance, as an incident to their property in the land through which it flowed; and that any abstraction of the water, however inconsiderable, by another riparian proprietor, and though productive of no actual damage, would be actionable, because it was an injury to a right and, if continued, would be the foundation of a claim of adverse right in that proprietor. We by no means dispute the truth of this proposition, with respect to every description of right. Actual perceptible damage is not indispensable as the foundation of an action; it is sufficient to show the violation of a right, in which case the law will presume damage; injuria sine damno is actionable, as was laid down in the case of Ashby v. White by Lord Holt, and in many subsequent cases, which are all referred to, and the truth of the proposition powerfully enforced in a very able judgment of the late Story J. in Webb v. Portland Manufacturing Co.^[16] In the case cited, Story J. said: "But I am not able to understand how it can correctly be said, in a legal sense, that an action will not lie, even in the case of a wrong or violation of a right, unless it is followed by some perceptible damage which can be established as a matter of fact; in other words, that injuria sine damno is not actionable. On the contrary, from my earliest reading, I have considered it laid up among the very elements of the common law that, wherever there is a wrong, there is a remedy to redress it; that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages."

The last case to which I need refer is Rothfield v. North British Railway Co..^[17] Mr. Rothfield brought a claim against the railway company for refusing to allow him to stay at their hotel, the North British Station Hotel, at Edinburgh. Lord Anderson, on the hearing of the case, awarded him on the first hearing one guinea damages. There were further matters, but, finally, it was decided by the full court that the defendants were entitled to refuse to receive Mr. Rothfield in their hotel. From the report it appears that: "On November 8, 1918, the Lord Ordinary (Lord Anderson), after a hearing in the Procedure Roll, being of opinion that he could decide the case without any inquiry into the facts, found and declared in terms of the declaratory conclusions of the summons, and found the pursuer entitled to damages, which he assessed at the sum of one guinea." The form of the action there was (a) for a declaration, and (b) for damages, and the damages that were claimed were stated to be "for payment by the defenders of the sum of 105l. in the name of damages." The judgment of Lord Anderson is most exhaustive and instructive on both the English and the Scots law. The matter came a second time before the Lord Ordinary when he affirmed his previous decision. Then the Lord Justice Clerk said: "He therefore" - the pursuer - "raised the present action to have his rights declared," and later: "The origin and development of this branch of the law have been different in England and Scotland. In England it is apparently based on the 'custom of England,' and has been the subject of many judicial determinations. In Scotland it had its origin in statutory provisions in the fifteenth century, and has received little elucidation by judicial utterances, so far as the question raised in the present case is concerned." Again: "But, if I may take the judgment of Lord Alverstone in Browne v. Brandt^[18] as correctly stating the law of England, there does not seem to be much, if any, difference in the result between the laws of England and of Scotland on this subject." I cite passages from this case because they may be helpful as showing what other minds felt on similar facts. The Lord Justice Clerk also said: "Further, if members of the public have rights as to accommodation in an hotel, .... which I think they have, and if the keeper of an hotel is subject to the liabilities before referred to, then I am inclined to think that an action of declarator" - which is similar to our action for a declaration - "may be competently brought by a traveller, who desires to establish the existence of these rights and liabilities, against an hotel keeper who refuses to recognise them, when the traveller legitimately and properly asks that they should be recognised and accorded to him, or, in the appropriate circumstances, puts forward his claim to have these rights declared. I am further inclined to be of opinion that the denial of such rights and liabilities, when legitimately and properly required to be recognised and observed by an individual traveller, would justify an appropriate action of declarator and damages, though the damages awarded might, of course, be merely nominal. I am not satisfied that a declaratory conclusion is an essential preliminary to a conclusion for damages in such an action." Lord Dundas said: "The pursuer concludes for 105l. in name of damages. A claim of that nature must, I think, be supported by averment and proof of some actual legal wrong sustained by the pursuer, for which the defenders are responsible." Then he discussed whether there was in fact any legal wrong and concluded: "A general denial of the pursuer's statement of his alleged rights does not, in my judgment, constitute the infliction of a legal wrong sounding in damages." Lord Salvesen said: "There is, therefore, no evidence upon which we are entitled judicially to proceed of the pursuer having suffered any legal wrong from which a claim of damages, however nominal, might emerge." Lord Ormidale said: "In this action the pursuer seeks to recover damages. He avers that he made application as a traveller for, and was refused, admission to the defenders' hotel, and so suffered a legal wrong. In my opinion, he may be held on one occasion to have made such an application and to have been refused." He went on to deal with the facts and added: "Accordingly, it seems to me that the pursuer did - apart from the question whether the defenders had good ground for refusing him - on this occasion suffer a legal wrong sounding in damages."

With the greatest desire loyally to follow authority which is binding on me, I find that I have yet to decide the express point in this case without any express authority to guide me. Having given the matter the fullest consideration, I hold this action by Mr. Constantine to be maintainable without proof of special damage. His right, I think, is founded on the common law. That right I found was violated. The law affords him a remedy, and the injury which he has suffered imports damage. I think that the principles of the decision in Ashby v. White apply to this case. It only remains for me to say that I was urged by Sir Patrick Hastings to award exemplary or substantial damages, because of the circumstances in which the denial of the right took place when Mr. Constantine suffered, as I find that he did suffer, much unjustifiable humiliation and distress, but on the authorities I do not feel that I can accede to that submission, having regard to the exact nature of this action and the form in which it comes before me. My conclusion is that I must give judgment for Mr. Constantine for nominal damages only, and I, therefore, award him the sum of five guineas.