Walter v. Ashton, (1902) 2 Ch. 282; 71 L. J. Ch. 839; 51 W. R. 131; 87 L. T. 196.

Lloyd's Bank, Ltd. v. Royal British Bank, Ltd., (1903) 19 Times L. R. 548, 604.

But see Dockrell v. Dougall, (1898) 78 L. T. 840; (1899) 80 L. T. 556.

Where, however, the words are not actionable per se, it is submitted that the plaintiff will not be entitled to any injunction until he has established a complete cause of action. "Damages and injunction are merely two different forms of remedy against the same wrong; and the facts which must be proved in order to entitle a plaintiff to the first of these remedies are equally necessary in the case of the second." (Per Lord Watson, in White v. Mellin, (1895) A. C., at p. 167.) Hence, whenever special damage is an essential part of the cause of action, special damage must be proved before the plaintiff can obtain either damages or an injunction.

In some cases of slander and in all actions on the case for slander of title, words disparaging goods, &c., special damage in the strictest sense of the term (i.e., as defined in the last chapter, ante, p. 353) is a necessary part of the cause of action. Until such special damage has arisen the defendant has committed no tort and the plaintiff has no cause of action. A mere apprehension of future damage will not suffice; the plaintiff can recover no damages unless special damage has actually accrued.

Can the plaintiff, however, in any such case obtain an injunction to prevent damage accruing? Although at first sight this might appear desirable, it is difficult to see how the plaintiff can be entitled to any remedy when his cause of action is still incomplete. In actions for personal defamation whenever the words are actionable per se, the plaintiff need show no special damage; he has a good cause of action without it; and in such actions, therefore, an injunction will be readily granted, if the Court can see that the repetition of the words will clearly injure the plaintiff in the way of his profession or trade. But where special damage is essential to the cause of action different considerations apply.

Take for instance the case of White v. Mellin, (1895) A. C. 154; 64 L. J. Ch. 308; 43 W. R. 353; 72 L. T. 334. There the plaintiff alleged that the defendant's words had disparaged the goods which

he manufactured; and special damage therefore was a necessary part of the cause of action. No special damage had in fact occurred; yet the plaintiff contended that though it was necessary to allege and prove special damage in an action of this kind in order to recover damages, it was not necessary to do either in order to entitle the plaintiff to an injunction,—that it was enough if the words were proved to be false and published without just occasion or excuse, and were calculated to injure the plaintiff's business if their further publication was not restrained. But the House of Lords decided the contrary, holding that "if special damage was necessary to the maintenance of the action, and special damage was not shown, a tort in the eye of the law would not be disclosed, and no injunction would be granted." (Per Lord Herschell, L.C., at p. 163.) "In order to constitute disparagement which is, in the sense of the law, injurious, it must be shown that the defendant's representations were made of and concerning the plaintiff's goods; that they were in disparagement of his goods and untrue; and that they have occasioned special damage to the plaintiff. Unless each and all of these three things be established, it must be held that the defendant has acted within his rights and that the plaintiff has not suffered any legal injuria." (Per Lord Watson, at p. 167.)

"The

The only conclusion to be drawn from these and other observations in the judgments in White v. Mellin, is that in all cases of slander where the words are not actionable per se, and in all actions on the case for words causing damage, whether spoken or written, special damage must be proved before the plaintiff can obtain either damages or an injunction. There is, however, one passage in Lord Watson's judgment which leans the other way:-' onus resting upon a plaintiff who asks an injunction, and does not say that he has as yet suffered any special damage, is if anything the heavier, because it is incumbent upon him to satisfy the Court that such damage will necessarily be occasioned to him in the future" (p. 167). This is the passage which the Master of the Rolls subsequently described in Dunlop Pneumatic Tyre Co., Ltd. v. Maison Talbot and others, (1904) 20 Times L. R. at p. 581, as "the high water mark in favour of the plaintiffs upon this point"; and if taken alone it certainly favours the contention that in some cases a Court may grant an injunction before special damage has actually accrued.

The next decision on the subject was also in the House of Lords (Royal Baking Powder Co. v. Wright Crossley & Co., (1900) 18 R. P. C. 95; ante, p. 80); and the observations of the Lords are

equally strong and clear. Here again the defendants' words had caused the plaintiffs no special damage which the law could recognise, and the Court refused to grant an injunction. "To support such an action it is necessary for the plaintiffs to prove

that they have suffered special damage thereby. The damage is the gist of the action, and therefore, according to the old rules of pleading, it must be specially alleged and proved." (Per Lord Davey, at p. 99.) "The plaintiff must prove two things: first, that the libel was maliciously published; and, secondly, that specific money damage has resulted from it. If either of these ingredients be absent the action must fail." (Per Lord James of Hereford, at p. 101.) "The action, then, being one of trade libel, it must, in order to succeed, comply with the conditions stated in White v. Mellin ((1895) A. C. 154). As I read that decision, the essential ground, the gist, of the action in a trade libel case is special damage, done maliciously. Unless the plaintiff has in fact suffered loss which can be and is specified, he has no cause of action. The fact that the defendant has acted maliciously cannot supply the want of special damage, nor can a superfluity of malice eke out a case wanting in special damage." (Per Lord Robertson, at pp. 102, 103.) "There is a class of cases, of which this is one, the true legal aspect of which, however they may be described technically, is that they are actions for unlawfully causing damage. The damage is the gist of the action, and, however much the thing complained of may be the subject of animadversion, it gives no right to an action in a court of law unless damage is proved." (Per Lord Halsbury, L.C., at p. 104.)

This question was also much discussed both in the Commercial Court and the Court of Appeal in Dunlop Pneumatic Tyre Co., Ltd. v. Maison Talbot and others, (1903) 20 Times L. R. 88; (1904) Ib. 579. In that case the defendants' manager had written in reply to an inquiry from a customer that neither the plaintiffs nor any other company except the defendants could supply anyone with a particular kind of tyre, as the defendants alone had the right to import such tyres into England. No special damage resulted from this statement as the customer in spite of it ordered and obtained the tyres in question from the plaintiffs. The plaintiffs applied for an injunction, which Walton, J., granted in spite of the observations in White v. Mellin, suprà (the case of Royal Baking Powder Co. v. Wright Crossley & Co., suprà, was not cited to his Lordship). The learned judge “thought that where, as in the present case, damage would be the natural and direct result likely to follow, and so highly

probable that it might be properly described as imminent, an injunction would lie" (at p. 90), although no damage had as yet occurred. On appeal the Court expressed no opinion as to the point under discussion but dissolved the injunction, and directed judgment to be entered for the defendants, on the ground that there was no malice on their part.

Illustration.

The defendant, who owned the copyright of a picture by Millais, issued a circular threatening proceedings against all persons who bought copies of the plaintiff's magazine, containing a woolwork pattern, which the defendant wrongly deemed to be an infringement of his copyright. The plaintiff brought an action for an injunction and also for damages. He failed to prove that he had sustained any appreciable damage; therefore the Court of Appeal refused to grant him any injunction.

Dicks v. Brooks, (1880) 15 Ch. D. 22; 49 L. J. Ch. 812; 29 W. R. 87 ;
43 L. T. 71.

II. Injunctions granted on an Interlocutory Application
before or without any Verdict.

The Court has also power to grant an interim injunction in cases of libel and slander. (Bonnard v. Perryman, (1891) 2 Ch. 269; 60 L. J. Ch. 617; 39 W. R. 435; 65 L. T. 506; Hermann Loog v. Bean, 26 Ch. D. 306; 53 L. J. Ch. 1128; 32 W. R. 994; 51 L. T. 442.) And this jurisdiction is not confined to words affecting a trade or business. (Monson v. Tussauds, Limited, (1894) 1 Q. B. 671; 63 L. J. Q. B. 454; 70 L. T. 335.) But this jurisdiction is "of a delicate nature; it ought only to be exercised in the clearest cases." (Per Lord Esher, M.R., in Coulson v. Coulson, (1887) 3 Times L. R. 846; approved by Lopes and Davey, L.JJ., in Monson v. Tussauds, Limited, suprà.) Thus, the Court ought not to interfere by way of injunction on an interlocutory application:

(i) Unless the words are so clearly libellous, that if a jury found them not to be libellous, the Court of Appeal would set the verdict aside as unreasonable. (Coulson v. Coulson, suprà; Bonnard v. Perryman, suprà; Newton v. Amalgamated Musicians' Union, (1896) 12 Times L. R. 623; Lloyd's Bank, Limited v. Royal British Bank, Limited, (1903) 19 Times L. R. 548.)

(ii) If the words are such that a jury might properly find them to be a fair comment on a matter of public interest. (Armstrong and others v. Armit and others, (1886) 2 Times L. R. 887.)

(iii) If the words are such that a jury might properly find them to be a fair and accurate report of a judicial proceeding. (Champion & Co., Limited v. Birmingham Vinegar Brewery Co., Limited, (1893) 10 Times L. R. 164.)

(iv) If the occasion of publication be privileged; the Court will not (except, perhaps, in the plainest cases) try the issue of malice or no malice on affidavit. (Quartz Hill Gold Mining Co. v. Beall, 20 Ch. D. 501; 51 L. J. Ch. 874; 30 W. R. 583; 46 L. T. 746.

(v) Where the defendant has pleaded or intends to plead a justification, unless the Court is satisfied that there is no reasonable prospect that the defendant will succeed at the trial in proving his words true. (Bonnard v. Perryman, suprà.)

(vi) Unless there is some evidence that the defendant intends to continue the circulation of the words complained of. (Per Jessel, M.R., in 20 Ch. D., at pp. 508, 509; and see Stannard v. Vestry of St. Giles, 20 Ch. D., at p. 195; 51 L. J. Ch. 629; 30 W. R. 693; 46 L. T. 243.)

(vii) Unless it be established that irreparable or very serious injury will in all probability result to the plaintiff, if the circulation of the libellous statements be allowed to continue. (Mogul Steamship Co. v. M'Gregor, Gow & Co., 15 Q. B. D. 476; 54 L. J. Q. B. 450; Salomons v. Knight, (1891) 2 Ch. 294; 60 L. J. Ch. 743; 39 W. R. 506; 64 L. T. 589.) "If the injury done to the plaintiff can be fully compensated for in damages, the Court ought not to interfere by an interim injunction to restrain the publication of the libel until the trial of the action." (Per Mathew, J., in Monson v. Tussauds, Limited, (1894) 1 Q. B., at p. 677.)

(viii) Where the plaintiff has by delaying the proceeding or by other conduct disentitled himself to such relief. (Monson v. Tussauds, Limited, (1894) 1 Q. B. 671.) An interim injunction must always be applied for promptly.