Present: Bertram C.J. and Shaw J.   1919.

FERNANDO v. PERIS et al.

232- D. C. Colombo, 43,550.

Defamation-Privileged      communication-Proofs    of      express      malice-Cost -Withdrawing allegation at the trial.

 In    an  action   for    defamation,    when    it    is    shown   that    the    occasion on    which    the    words    were    uttered    or written    was   privileged    it    lies upon    the    other    side    to    displace    that privilege    by   positive    proof    of express malice.

THE facts appear from the  judgment.
           Bawa,    K.C.    (with    him    Samarawickrema),    for    the    plaintiff, appellant.

          Hayley (with him Tisseverasinghe), for respondents.

January 31, 1919.    Bertram C.J.-

Fernando        This is  an appeal from the   decision  of  the  District  Judge   of Colombo. The action was brought by one U. J. Fernando, lay reader of an Anglican church in the neighbourhood of Colombo, for the purpose of the vindication of his character. It is an action for libel against the three defendants, who are church wardens of the church, and who wrote a letter to the incumbent of the church imputing immorality to Mr. Fernando, expressing the belief of the wardens in the charge made against Mr. Fernando, and calling upon the incumbent to take action in the matter. The learned District Judge has found the charge against Mr. Fernando was false, but that the occasion on which the charge was made was a privileged occasion; and he has further held that the plaintiff has not satisfied him that the defendants made the charge otherwise than in good faith.    He has, therefore dismissed the plaintiff's action, with costs.

   [His Lordship set out the facts, and continued] : -

Now it must be taken for the purpose of this case that the charge against U. J. Fernando was a false charge. But it was not until the actual trial of this action that the defendants accepted this position. Mr. Fernando, on June 30, 1916, instituted this action to defend his character. The defendants in their answer expressly pleaded that the charge was true, and, as I say, it was not until they came into Court that, on the advice of counsel, they disclaimed any attempt to justify the charge. In spite of this fact, however, the first witness called on behalf of the defence was the woman, Maria Gomes, whose evidence was not confined merely to saying that she had made communications to the defendants, which would explain the action they took, but made specific charges of the most serious nature: charged the plaintiff with being the father of her child, with having attempted to procure abortion, and with having bribed her witnesses in the maintenance proceedings. All these state­ments v>ere made in examination-in-chief.

The learned District Judge, most properly, and in spite of the fact that the defendants at that stage withdrew the charge of adultery, thought it right that an issue should be framed on that point, and he has expressly exonerated the plaintiff from the charge against him, All that we have to ask ourselves, therefore, is not whether the charge is true, because it is expressly found to be false, but whether the defendants are entitled to claim privilege on the occasion on which they made it.

Mr. Bawa has brought before us a variety of circumstances which he contends, preclude them from the right of claiming privilege. Those circumstances partly consist of certain antecedent facts in the relationship between the parties, and partly in the manner in which they made and pressed their charge. He draws attention to the fact that the charge was accompanied, as I have said, by an

attempt to get the woman churched,   and the attempt to get  the child baptized, and by the institution of the maintenance proceed­ings.   There is no question that this combined and concerted action shows a certain animus and determination on the