Alexander v North Eastern Railway Co

In the 1860s in North East England, J Alexander—a manufacturer and general merchant from Leeds—was convicted of riding a train from Leeds to Darlington without a valid ticket. Before considering the case of Mr Alexander and his libel action against the North Eastern Railway Company, it is worth briefly highlighting the historical significance of the location of Mr Alexander’s fare evasion.

The Birth of the Railways

North East England is widely regarded to be the birthplace of the railways. It was here that the world’s first tramways were laid.¹ North East England was also the location of the world’s first steam-powered public railway which operated between Darlington and Stockton.² The proposal to construct a railway initially attracted widespread opposition, with many of the view that a canal would be a better option for transporting coal to England’s coast.³ However, when it became clear that constructing a railway would be cheaper than a canal, the Stockton and Darlington Railway was born.⁴ On 27 September 1825, the first ever train ran from Darlington to Stockton, with approximately 450 people on board.⁵ People travelled from all over the region to witness the great spectacle, and the day was declared a public holiday.⁶ Many locals, however, were terrified of the harm that the fire-breathing steam engines might cause. There were even rumours that humans would die if they travelled as fast as trains could move.⁷ Others believed that trains could ‘injure the brain’, with their jarring motion thought to drive passengers mad and trigger violent outbursts.⁸ As the first ever train left Darlington, it was led by a man on horseback carrying a flag proclaiming, ‘periculum privatum utilitas publica’–‘the private danger is the public good’.⁹

Thirty-eight years after the excitement of that day, the Stockton and Darlington Railway Company was taken over by the North Eastern Railway Company. It was in this same year–1863–that Mr Alexander was convicted of riding on one of the North Eastern Railway Company’s trains without a valid ticket.

The Libel Action

Mr Alexander was charged before magistrates for not having purchased a valid ticket for the train he was riding between Darlington and Leeds. He was given the penalty of a fine or a period of imprisonment of two weeks if he defaulted on the fine. However, following his conviction, the North Eastern Railway Company published a notice at their stations which stated that Mr Alexander was convicted and issued a fine or three weeks’ imprisonment if in default.

Mr Alexander alleged that the North Eastern Railway Company had committed libel in its inaccurate description of his penalty. At common law, libel is the publication of defamatory matter in a permanent form (e.g. by writing), whereas slander is the publication of defamatory matter in a transient form (e.g. by spoken word that is not recorded).¹⁰ Whereas libel was actionable per se (i.e. without proof of damage), slander required such proof.¹¹ Today, the common law distinction between libel and slander has been abolished in many jurisdictions, with both falling under the umbrella of defamation.¹² Back in the mid-1860s, however, it was an action for libel that Mr Alexander chose to bring against the defendant. He argued that the effect of the defendant’s overstatement—describing his imprisonment if in default as three weeks rather than two weeks—was to make his offence appear more reprehensible than it actually was.

The Railway Company relied upon the common law defence of justification.¹³According to the Railway Company, Mr Alexander’s conviction was described with sufficient accuracy, meaning it was not libellous.

The Substance of the Sting

The Kings Bench held on a demurrer¹⁴ that the difference between Mr Alexander’s actual conviction and the published statement did not deprive the Railway Company of its defence. This was consistent with earlier authority which had found that only the ‘sting’ of a libellous statement must be justified:

‘As much must be justified as meets the sting of the charge, and if anything be contained in a charge which does not add to the sting of it, that need not be justified’.¹⁵

The Kings Bench in Mr Alexander’s case confirmed that a slight or immaterial inaccuracy, which in no way alters the defamatory sting, will not vitiate the defence of justification. Put simply, it was not necessary to prove the literal truth of every single word in the defendant’s statement, so long as the facts which constituted the sting remained true. Here, the substance of the imputation—that Mr Alexander would be liable to spend a number of weeks in jail if he failed to pay his fine—was not altered by the insignificant difference in the number of weeks that appeared in the defendant’s published statement.

It is important to note that the question of whether the statement remained substantially true, or whether the inaccuracy actually had a different effect upon the mind of the public, was ultimately a matter of fact to be determined by the jury. The decision of the Kings Bench was that the jury was entitled to regard the statement as having been justified, given that the slight inaccuracy did not necessarily make the notice libellous.

Defamation on the Rails

Mr Alexander’s case is not the only decision to have considered defamation on the railways. A different conclusion was reached in a case with similar facts decided shortly after the decision of the Kings Bench. In Gwynn v South Eastern Railway,¹⁶ the defendant alleged that the plaintiff, who had travelled on one of its trains without a valid ticket, had been sentenced to a fine or three days’ imprisonment ‘with hard labour’ if in default. This allegation of hard labour was, however, false. The jury found for the plaintiff, with the defendant’s words having produced an entirely false impression of the gravity of the plaintiff’s offence.

Cases of defamation relating to plaintiffs who fail to produce a valid ticket, or are falsely accused of doing so, have also been considered by courts in other parts of the world. In India, the 1889 case of South Indian Railway Company v Ramakrishna¹⁷ concerned a plaintiff who, while travelling on the South Indian Railway from Madras (now Chennai), was mistakenly accused by a railway guard of having the wrong ticket. The plaintiff, who did in fact have a valid ticket, claimed that the railway guard’s accusation was defamatory (slander) as it was said in the presence of another passenger. The Court held that the railway company was not liable. According to Wilkinson J, it was ‘very doubtful’ whether ‘the expression of a mere suspicion is actionable’.¹⁸ Applying the principle of ‘de minimis non curat lex’ (‘the law does not take account of trifles’), it was further noted that any harm caused to the plaintiff’s reputation by the imputation that he was travelling with the wrong ticket was so slight that no person of ordinary sense and temper would complain of such harm.¹⁹ According to Collins CJ, the words used by the guard ‘would not induce the plaintiff reasonably to apprehend that his reputation had been injured and could not and did not inflict upon him any damage’.²⁰

This case can be distinguished from a 2019 decision of the High Court of Ireland.²¹ Leon Diop, described by the High Court as a ‘coloured gentleman’, had just boarded a tram in Dublin when two security guards immediately approached and demanded production of his ticket. Apparently, there had been a problem that day with black youths riding the tram without tickets and generally behaving poorly. Despite having a valid ticket, one of the security guards ordered Mr Diop to get off the tram because he did not like Mr Diop’s attitude. The accompanying hand gestures made by the guard—waving Mr Diop towards the door—made it obvious to other passengers in the carriage that Mr Diop was being ordered to alight from the tram. Having decided that his colleague was overstepping the mark, the second security guard then issued a countermanding order permitting Mr Diop to remain on the tram.

While Barr J found the guard’s request that Mr Diop produce his ticket could not be defamatory, he reached the opposite conclusion in relation to the direction to leave the tram. Other passengers in the carriage, who either overheard the exchange, or saw the gestures that accompanied the direction to leave the carriage, would have reached the conclusion that Mr Diop either did not have a valid ticket, or had otherwise misbehaved in such a way as to justify his removal. Barr J rejected the defence of qualified privilege, which is available, for instance, where the person making a false statement or accusation has a duty or interest in doing so, and the person to whom it is made has a duty or interest in receiving the statement/accusation.²² According to Barr J, while the guards’ initial interaction with Mr Diop (asking for his ticket) was covered by qualified privilege, this ceased to be the case once it was established that Mr Diop had a valid ticket.²³

As there was no lasting damage to Mr Diop’s good name or reputation, Barr J found that this was a ‘fleeting defamation’ that only warranted nominal damages of €500. Of particular significance was the fact that the defamation was ‘almost simultaneously expunged’ by the second guard’s countermanding instruction that Mr Diop could remain on the tram.

Conclusion

While cases involving defamation on the railways (or the tramways) are not common, they have assisted in the development of some important legal principles. Alexander v North Eastern Railway Company continues to be cited, over 150 years later, in support of the proposition that minor inaccuracies in the published matter will not necessarily prevent the defence of truth/justification from being established.²⁴ The application of this legal principle, however, will ultimately depend on the factual situation. If a newspaper reports that a man has been fined for riding a train without a valid ticket on twenty-five occasions, but he has actually only been fined on twenty-four occasions, applying Alexander v North Eastern Railway Company, it seems reasonably clear that the defence of truth/justification will still be established: the substance of the sting—that the man is a habitual fare evader–remains true, with the incorrectly reported number of fare evasions an immaterial detail. However, while the difference of just one fare evasion in this scenario did not add to the sting of the charge, a newspaper report that a man has been fined for two fare evasions, when he has actually only be fined for one, might make a difference to the average reader, given that the factual variation now suggests that the plaintiff is a repeat offender.

Stay tuned for next month’s post!