I was reminded (plug alert) of my piece “The Aeolus Episode in Ulysses and the Freeman’s Journal: Chief Baron Palles and the law of defamation”, chapter 12 in Oonagh B Breen & Noel McGrath (eds) Palles. The Legal Legacy of the last Lord Chief Baron (Four Courts Press, 2022) (noted here), when I had the pleasure of reading the recent re-publication of Brian McMahon’s article (first published: Law Society Gazette, October 2004, 12), focusing on Dublin’s legal fraternity in Ulysses by James Joyce (pictured left, on the right).

To celebrate the 100th anniversary this year of the publication of Ulysses by Syliva Beach in Paris, this month’s Law Society Gazette (October 2022 (pdf), 41) has reproduced McMahon’s excellent and entertaining article.

Here are some extracts from it about three minor elements of the book that raise interesting issues of a legal nature:

James Joyce’s Ulysses is set in Dublin on 16 June 1904, and its two principal characters are Leopold Bloom and Stephen Dedalus. Bloom is the novel’s hero, and his journey around Dublin echoes Odysseus’ journey in Homer’s Odyssey. …

… Martin Cunningham tells … Bloom, how Reuben J’s son tried to commit suicide by jumping into the Liffey, but was saved by a workman who was rewarded with a florin. The Irish Worker of 2 December 1911 reported a very similar incident, in which Reuben J Dodd [Jr], son of Reuben J [Dodd Sr], jumped into the Liffey and was saved by a workman … When the BBC broadcast this extract from Ulysses in the 1950s, Dodd [Jr] successfully sued for defamation, saying he had jumped into the Liffey after his hat. ….

… [Bloom later joins a] conversation, in which JJ O’Molloy, a once-promising young barrister now fallen on hard times, … begins to tell a story about the famous Chief Baron Christopher Palles, chief judge in the Court of Exchequer in 1904, but unfortunately is cut short. … At five in the afternoon, Bloom makes his way to Barney Kiernan’s pub … When JJ O’Molloy and Ned Lambert enter, they all discuss the alleged libel of Denis Breen by publication of ‘U.p:up.’ on a postcard. … JJ O’Molloy cites Sandgrove v Hole (2 KB 1 [1901]) and opines that the words are capable of defaming Breen. Their meaning remains a subject of debate among Joyce scholars. …

Joyce’s Ulysses is enjoyed by millions around the world who know very little of Dublin city or its history. Irish people are fortunate that their enjoyment of Ulysses is enhanced by the fact that it is a depiction of a day in their capital city’s history, and Irish lawyers are more fortunate still that this depiction extends to their profession.

The Rueben defamation case, the reference to the Lord Chief Baron, and the treatment of Sadgrove v Hole, are all very interesting. As to the Rueben case, more than 800 real people appear in Ulysses (Vivien Igoe The Real People of Joyce’s Ulysses. A Biographical Guide (UCD Press, Dublin, 2016)). The often “blantanly libellous” appropriation of real people certainly courted defamation suits (Sean Latham The Art of Scandal: Modernism, Libel Law, and the Roman à Clef (Oxford University Press, 2009) 104); but, in the event, no-one sued Joyce or his publishers. Nevertheless, one of the reasons for his difficulties in getting published had been that potential publishers had feared being sued for defamation (see Carmelo Medina Casado “Legal Prudery: The Case of ‘Ulysses'” (2002) 26(1) Journal of Modern Literature 90), but publication by Sylvia Beach in Paris was beyond the reach of Irish courts. Similarly, Joyce’s reluctance to return to Ireland may have been, at least in part, because he, too, feared being sued for defamation (see Patrick Callan “Reuben J. Dodd’s ‘Malicious Falsehood’: Ulysses on The BBC (1954–5)” (2018-2020) 11-13 Dublin James Joyce Journal 1-26). If so, then at least one reason why no-one sued Joyce may be because, whilst he lived in Trieste, Paris, and Zürich, he was (like Sylvia Beach) beyond the reach of the Irish courts.

Indeed, his fear of being sued if he had returned to Dublin was probably well-founded. As McMahon notes, Reuben J Dodd Jr sued the BBC over his representation in an adaptation of the Hades episode from Ulysses broadcast on BBC Radio 3 on Bloomsday, 16 June, 1954. After four procedural hearings, the matter was settled in November 1955, in a manner that “made a substantial financial contribution” to Dodd’s later years (Callan, 9).The BBC settled, in part, because it did not wish to have an Irish court disturb the legal presumption that “the point of publication took place at the place of transmission and not at the place of reception”, thus potentially opening the BBC up to defamation actions worldwide (Callan, 12, 18). This was not a fanciful concern. In Dow Jones v Gutnick (2002) 210 CLR 575, [2002] HCA 56 (10 December 2002), the High Court of Australia unanimously held that where an article was published online in New York but read in Australia, the plaintiff could sue for defamation in Australia. Hence, if “a publisher publishes in a multiplicity of jurisdictions it should understand, and must accept, that it runs the risk of liability in those jurisdictions in which the publication is not lawful and inflicts damage” (Gutnick [192]; approved and followed in, eg, Lewis v King [2004] EWCA Civ 1329 (19 October 2004) [29] (Lord Woolf LCJ; Mummery and Laws LJJ concurring); Qatar Airways Group QCSC v Middle East News FZ LLC [2020] EWHC 2975 (QB) (06 November 2020) [355] (Saini J)).

As to the reference to Lord Chief Baron Christopher Palles (pictured above left, on the left), in the Aeolus episode in Ulysses, JJ O’Molloy interrupted Professor MacHugh’s discourse on the grandeur that was Rome, to ask ‘Do you know that story about chief baron Palles? … It was at the royal university dinner. Everything was going swimmingly …’. At this point, O’Molloy was interrupted by Lenehan (we never learn his first name), and we hear no more of the story of the Chief Baron at the university dinner. Palles is one of 19 judges to feature in Ulysses (Adrian Hardiman Joyce in Court. James Joyce and the Law (Head of Zeus, 2017) 113); he was deeply involved in university reform (indeed, the Aeolus episode may well be Joyce’s response to the contemporary university question (see So Onose “The Crozier and the Pen: ‘Aeolus’ and the University Question” (2017) Joyce Studies Annual 115); and there are doubtless may stories of Palles at university dinners – so it is a pity that Lenehan interrupted O’Molloy. As Hardiman says the “greatest of all Irish judges of the nineteenth and early twentieth centuries, Chief Baron Palles, merits only two lines of a never-completed anecdote” (id, 115), and the “only” there aches wistfully for the completion of the anecdote.

Finally, as to the treatment of Sadgrove v Hole, in the Lestrygonians episode in Ulysses, Bloom ran into Josie Breen, an old flame by then married to Denis Breen. That morning, Breen had been greatly distressed to receive an anonymous postcard which simply read “U.p: up”, and his reaction was in turn distressing her: “He’s a caution to rattlesnakes”, she said; he had been “with his lawbooks finding out the law of libel. He has me heartscalded”. Worse, he had gone to the offices of John Henry Menton, a solicitor, to take a defamation action for the extraordinary sum of “ten thousand pounds”. Afterwards, Bloom mused that the postcard could have been the work of Alf Bergan or Richie Goulding. In the Cyclops episode, Bergan mocked Breen’s response to the card; and, when challenged by Joe Hynes as to whether he had sent it, he all-but denied it in a famous malapropism: “Me? says Alf. Don’t cast your nasturtiums on my character”. Then O’Molloy piped up: “Of course an action would lie, … It implies that he is not compos mentis. U. p: up”. Bergan countered that Breen is not all there: “Do you know that he’s balmy?”. And O’Molloy replied that “the truth of a libel is no defence to an indictment for publishing it in the eyes of the law”. Here, O’Molloy has confused criminal and civil libel (Hardiman, 106-107); he would have been correct in the case of a criminal libel (unless the publication was in the public interest: section 6 of Lord Campbell’s Act (the Libel Act, 6 & 7 Vict. c.96) 1843), but not in a civil case, where truth was at the time, and still is, a complete defence to a libel action (see, now, section 16 of the Defamation Act 2009 (also here)). In any event, it is a little later in the conversation, returning to the postcard, that Molloy refers to Sadgrove v Hole: “a postcard is publication. It was held to be sufficient evidence of malice in the test case Sadgrove v. Hole. In my opinion an action might lie”.

Much of the Aeolus episode takes places in the offices of the Freeman’s Journal newspaper (see, eg, Felix M Larkin “‘The Old Woman of Prince’s Street’: Ulysses and the Freeman’s Journal” (2011) 4 Dublin James Joyce Journal 14; Felix M Larkin “James Joyce’s Joust with Journalism: The Freeman’s Journal in Ulysses’ Aeolus Chapter” (Irish Times, 8 May 2019)). Indeed, a report of a postcard libel case in that newspaper on 5 November 1903 may have provided part of the inspiration for this incident (Robert M Adams Surface and Symbol (Oxford University Press, 1967) [Amazon] 193). Law reports and law journals of the period “are littered with postcard libel cases that took place while the postcard was still considered new media” (Monica Cure Picturing the Postcard: A New Media Crisis at the Turn of the Century (University of Minnesota Press, 2018) 124). The key issue is usually whether there has been sufficient publication to at least one other person besides the plaintiff. In Sadgrove v Hole [1901] 2 KB 1, the Court of Appeal held that the open nature of a postcard easily established publication to third parties who could read it on its journey from defendant to plaintiff. In Robinson v Jones (1879) 4 LR Ir 391 and McCann v The Edinburgh Roperie and Sail-Cloth Company (1889) 28 LR Ir 24, Palles CB had earlier reached the same conclusion that the Court of Appeal in London would subsequently reach in Sadgrove v Hole [1901] 2 KB 1. In Robinson, the plaintiff had been prevented by illness from paying the defendant for seeds, but his wife eventually paid most of the bill. The defendant sent a postcard to the plaintiff, demanding payment of the remainder, and alleging that the plaintiff’s “plea of illness, for not paying this trifle is mere moonshine”. The Court held for the plaintiff, because the contents of the postcard were “visible to every person through whose hands it passes”. Similarly, in McCann, the parties were in dispute over a small sum. The defendant sent a postcard that stated “Settlement. If you do not remit by return, the matter will be handed to our Dublin solicitors”. It was read by the plaintiff’s manager, who did not know the state of the accounts between the plaintiff and defendant. Palles CB held that the contents of the card were published to the people in the post office who dealt with it, as well as to the manager. The Court of Appeal upheld.

In Sadgrove v Hole, the Managing Director of a company employed an architect to prepare plans for an extension to the company’s premises. A quantity surveyor prepared a bill of quantities; and the architect sent copies to several builders. However, the MD considered that the amount of work indicated in the bill of quantities was much more than the company needed; so he sent a postcard to one of the builders saying that the “quantities sent you this morning by architect are entirely wrong”; and he sent another postcard to another of the builders saying that there were “great errors in the quantities posted to you this morning”. The quantity surveyor sued the MD for defamation. Before the Court of Appeal, his counsel referred to the judgment of Palles CB in Robinson v Jones; the Court did not, but AL Smith LJ (Collins and Romer LJJ concurring) held that “if a man writes a libel on the back of a post-card, and then sends it through the post there is evidence of publication” ([1901] 2 KB 1, 4-5). Hence, Robinson, McCann, and Sadgrove, all demonstrate that O’Molloy was right to tell his fellow patrons of Barney Kiernan’s pub that “a postcard is publication”.

Sadgrove is one 32 cases to feature in Ulysses (Hardiman, 18), but O’Molloy’s description is incomplete: the Court of Appeal did indeed hold that “a postcard is publication” sufficient to ground a defamation action, but it also held that the plaintiff had failed to prove that there had been “a publication of and concerning him of libellous matter” ([1901] 2 KB 1, 4 (AL Smith LJ)). Indeed, the case is regularly cited for this point; see, most recently, Goldsmith v Bissett-Powell [2022] EWHC 1591 (QB) (27 June 2022) [130] (Knowles J)). In Sadgrove, the Court held held that the plaintiff had failed to establish that the words in the post-cards referred to the plaintiff, whether directly or by reference or innuendo (on the latter point, see Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (HL)). Moreover, the Court of Appeal in Sadgrove went on to hold that the communication from a client to a builder concerning the building was privileged. On the other hand, in McCann, the Court held that no defence of qualified privilege arose on the facts, so the defamation action in that case was successful. Finally, however, in Sadgrove, the Court of Appeal held that, although sending a defamatory communication by post-card may well be evidence of malice (as O’Molloy commented), there was in the case no evidence of such malice, not least because the plaintiff was no-where referred to in the post-cards. Hence, for all of these reasons, the defamation action in Sadgrove ultimately failed. All in all, the earlier Irish cases of Robinson and McCann would have been more straightforward precedents than Sadgove for O’Molloy; and, had he referred to them, we might well have heard more from him about the Lord Chief Baron, whether at a university dinner or otherwise!

In any event, the general rule in Robinson, McCann, and Sadgrove, that the open nature of a postcard means there is usually sufficient publication to at least one other person besides the plaintiff, does not apply to messages in envelopes (Huth v Huth [1915] 3 KB 32) unless opening of the envelope was foreseeable (Theaker v Richardson [1962] 1 WLR 151 (CA)). These cases were relatively recently approved by the Court of Appeal in Stocker v Stocker [2018] EWCA Civ 170 (12 February 2018)). On 23 December 2012, Mrs Stocker (pictured left; on the right) published a comment to the Facebook wall of her friend Ms Bligh, in which she alleged that her former husband, Mr Stocker (pictured left; on the left), had “tried to strangle” her. Although Mr Stocker had in fact assaulted her, he nevertheless sued her for libel, arguing that the comment meant that he had tried but failed to kill her, and that this was a significant and distorting overstatement of the assault. On the other hand, Mrs Stocker gave evidence that she believed that her comments on Ms Bligh’s wall would be private and not potentially published to all of Ms Bligh’s Facebook friends, and that she gave no further thought to the matter. At first instance ([2016] EWHC 474 (QB) (ex tempore)), Mitting J held that Mr Stocker had been defamed by Mrs Stocker’s comment; he relied on one dictionary meaning of the word “strangle” might be and agreed with Mr Stocker that the comment went too far; and he also held held that posting it on a Ms Bligh’s Facebook wall was publication of it to any of Ms Bligh’s Facebook friends who may have accessed it. The Court of Appeal upheld on both issues of meaning and publication ([2018] EWCA Civ 170 (12 February 2018)). On the latter issue, counsel for Mrs Stocker referred to Huth v Huth and Theaker v Richardson; and Sharpe LJ (McFarlane LJ and Sir John Laws concurring) described them as cases

[38] … where defamatory letters in envelopes addressed to their intended recipients, were ‘intercepted’ by third parties, who took them out of their envelopes, sealed in one instance and not in the other, to read them. In the first, Theaker v Richardson, a husband opened a sealed letter addressed to his wife written by the defendant. The Court of Appeal refused to interfere with the jury’s finding that the defendant was responsible for publication. In Huth v Huth [1915] 3 KB 32 (CA) a curious butler extracted the content of an unsealed envelope addressed by a husband to his wife in her maiden name. In that case, the Court of Appeal upheld the judge’s decision that there was no evidence of publication. In Theaker Lord Justice Harman … said at p. 157: “It thus appears that the answer to the question of publication of libel contained in a letter will depend on the state of the defendant’s knowledge, either proved or inferred, of the conditions likely to prevail in the place to which the libel is destined.” Pearson LJ said at p. 161, “Was [Mr Theaker’s conduct in reading the letter] something unusual, out of the ordinary and not reasonably to be anticipated, or was it something that could quite easily and naturally happen in the ordinary course of events?” Ormerod LJ did not disagree with the test, but with its application to the facts.

[39] The analogy between those cases and this one is not exact however. The defendants in Theaker and Huth consciously used both the ‘medium and the message’ to direct the publication specifically to the intended publishee by using an addressed envelope; whereas the appellant in this case used what she knew to be a semi public mode of publication to make remarks to Ms Bligh, without thinking about the fact that what she said was accessible to others.

[40] … she was the originator of the libel; she was aware that the particular Facebook platform concerned was a semi public one and she deliberately posted on that platform without thinking about who else might see what she posted. … There is nothing unjust so it seems to me, in holding that a defendant in these circumstances should be held to be responsible in law for publishing defamatory material to third parties. … In my opinion therefore, the judge did not err in law in determining that the appellant was responsible in law for publication.

Hence, a comment on a Facebook wall is in exactly the same position as publication on an open postcard, and Sharpe LJ might well also have relied on at least Sadgrove, if not also Robinson and McCann, in coming to her conclusion. However, the Supreme Court ([2019] UKSC 17 (3 April 2019)) reversed the Court of Appeal on the issue of meaning, and so did not reach the issue of publication. On the former issue, Lord Kerr held that Mitting J had fallen into error by relying upon the dictionary definition of the verb “to strangle” as dictating the meaning of Mrs Stocker’s Facebook comment: as a consequence “he failed to conduct a realistic exploration of how the ordinary reader of the post would have understood it” ([2019] UKSC 17 (3 April 2019) [47] (Lord Kerr; Lord Reed, Lady Black, Lord Briggs and Lord Kitchin concurring). This decision is an excellent example of the point that, in defamation cases, the meaning of the impugned publication must be determined contextually, so the question was what would the words “tried to strangle me” would convey to the “ordinary reasonable reader” of a Facebook post, and not what a dictionary meaning of the word “strangle” might be.

I considered Robinson, McCann, and Sadgrove very briefly in my piece “The Aeolus Episode in Ulysses and the Freeman’s Journal: Chief Baron Palles and the law of defamation”, chapter 12 in Oonagh B Breen & Noel McGrath (eds) Palles. The Legal Legacy of the last Lord Chief Baron (Four Courts Press, 2022) (noted here). I will return to the recent launch of that splendid volume in a future post. My discussion of Sadgrove (and, indeed, Stocker) here is considerably more extensive than my discussion of the issues in that chapter, and I did not consider the Reuben case at all, so I am grateful to the prompt in the McMahon piece (and in his online companion) to return to these issues. The Breen and McGrath (eds) Palles volume would make an excellent Christmas present for the lawyers in the your life, and you can buy it at a discount from the publisher. Indeed, buy 2, and enjoy it yourself!