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Sir Roderick says . . .

Every Issue

Cite as: Jan/Feb 2010 84(1/2) LIJ, p.79


Death does void defamation, but . . .

Everyone has their own favourite legal maxim but the trouble is many of these are just plain wrong. Sir Roderick George Smythe-Walters sorts fact from fiction.

I have always had a soft spot for the law of defamation. I once successfully sued the editor of a major Melbourne newspaper who reported that I had “lost a case in the VCAT”.

Thankfully, as part of the settlement it was agreed that a large advertisement would be published which explained that I would not be seen dead appearing in a tribunal.

The editors of this august journal have asked me to consider the aphorism “you cannot defame the dead”.

I can briefly respond that, in general terms, this is true. To use the Latin: actio personalis moritur cum persona. To save you insurance solicitors a trip to Google: “a personal action dies with the person”.

This means that an action in defamation dies with the prospective plaintiff. There may, however, be one exception to this rule: the dead plaintiff who is, in fact, very much alive.

I am reminded of John Stonehouse, who was a member of the British Parliament for the seat of Wednesbury. His dedication to his electorate was such that he decided to engage in some unreasonableness. To avoid being prosecuted for some creative accounting, Stonehouse decided to disappear.

He left clothes on a Miami beach in 1974 and was presumed dead. This presumption was rebutted when he was spotted in a bank in Melbourne, and arrested by police who assumed that he was the famous fugitive Lord Lucan. Deported back to the UK, Stonehouse then demonstrated breathtaking chutzpah. He returned to the British Parliament and continued to represent his baffled constituents. They, no doubt, had considered themselves better represented in his absence.

While he was “dead”, many unkind things were reported about Stonehouse – things that might have “lowered him in the estimation of right-thinking people”, to use the classic definition which my dear friend Lord Atkin coined.

Had Stonehouse so desired, I advise that he could certainly have pursued an action in defamation. The rationale which prevents the dead from pursuing an action for defamation is that they are no longer able to assert a personal right. That rationale disappears if it turns out that they are still alive.

Of course, the fact that he faked his own death might bring into play the defence of truth or fair comment. A newspaper that reported that the prospective plaintiff had “died” or even that he was “shifty”, “unreliable” or “completely bloody bonkers” might be able to suggest that this implication was supported by subsequent events. Stonehouse didn’t pursue a defamation action, most likely because he was caught up in a different court proceeding – his prosecution for fraud.

He received seven years at Her Majesty’s pleasure, and served three. Less than a decade later, and with his defamation action still unprosecuted, he died, for a second time. Or so we are led to believe . . .

I advise, therefore that it is true that the dead cannot be defamed. I caution, however, that it might be wise to check the body first.


Got a question for Sir Roderick?

Email it to sirroderick@liv.asn.au, or fax 9607 9451 or mail C/- LIJ, 470 Bourke Street, Melbourne 3000.

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