"operate the doctrinal network." To Lord Loreburn, however, it
appeared incumbent upon the Courts to pursue the same course of
"individualizing cases," but, speaking judicially in London and in
a Scots appeal, he used other words to describe this duty of a judge.
"Tn considering the question whether the occasion was an occasion
of privilege the Court will regard the alleged libel," (or slander)
"and will examine by whom it was published, to whom it was pub-
lished, when, why, and in what circumstances it was published, and
will see whether these things establish a relation between the parties
which gives a social or moral right or duty." Baird v. Wallace-
James (1). But, in examining the facts, it must be kept steadily in
view what the question for the Court is. The primary question for
the Court is whether the occasion is privileged. If the occasion is
privileged other questions may arise and it is possible that they may
be, or comprise, matter of law for the Court, though it is more
likely that they will be questions of fact for the jury. The question
whether the defamatory matter is or may be relevant to the occasion
may arise in a form which the Court must decide. But it is for the
jury to say under the issue of malice with what purpose the defam-
atory matter was published. That is to say whether the occasion
was used for the purpose of the privilege is a matter for the jury ;
and since upon this issue the burden is upon the plaintiff, a question
of the sufficiency of evidence to sustain the issue, which, of course,
is one for the Court, is a question whether the plaintiff has displaced,
not whether the defendant has established, privilege for the com-
munication. Whether or not the occasion gives a privilege is a
question of law for the judge, but whether the party has fairly and
properly conducted himself in the exercise of it is a question for the
jury: per Lord Campbell C.J. in Dickson v. Earl of Wilton (2).
"A confusion is often made between a privileged communication
and a privileged occasion. It is for the jury to say whether a com-
munication was privileged ; but the question whether an occasion
was privileged is for the judge " per Lopes L.J. in Pullman v. Walter
Hill & Co. Ltd. (3). "If the occasion is privileged it is so for some
reason, and the defendant is only entitled to the protection of the
privilege if he uses the occasion for that reason . . . I apprehend
the moment the judge rules that the occasion is privileged, the burden
of shewing that the defendant did not act in respect of the reason
of the privilege, but for some other and indirect reason, is thrown
upon the plaintiff": per Brett L.J. in Clark v. Molyneuz (4).
(1) (1916) 85 L.J. P.C. 193, at p. 198. (3) (1891) 1 Q.B, 524, at p. 529.