Scottish Court of Session Decisions

This was an action of damages for defamation at the instance of William Blackburn Craig, merchant in Glasgow, against William Taylor, junior, oil merchant and colour manufacturers, Liverpool. The case was tried before Lord Ormidale and a jury on the 17th July 1866, upon the following issue:—

“It being admitted that on or about the 14th day of March 1866, the defender, William Taylor, junior, wrote and transmitted to the pursuer a letter in the following terms:—“Liverpool, March 14, 1866. Sir,-Yours of the 13th inst. to hand. Just as I expected, ‘ your orders plentiful yr. money nowhere, but there are too many of this class in your Town particularly-please try elsewhere, but friends in my way of business in this Town will have the opportunity of reading your communications. I cannot say I wish you better fortune elsewhere, because I believe Yr. system shd. be put a stop to. Yours, &c.,

(Signed)

“ W. Taylor, Jr.

“Mr Craig, Glasgow.”

“Whether the said letter is of and concerning the pursuer, and falsely and calumniously represents the pursuer as a dishonest person who had sought to obtain goods from the defender, William Taylor, junior, without having the means of paying the price thereof, and without intending to pay the price thereof, and as one of a class who conducted business on the system of buying and obtaining goods without having the means of paying and without intending to pay, the price thereof, to the loss injury, and damage of the pursuer?”

Damages claimed, £500.

The jury returned a verdict for the pursuer, and assessed the damages at one farthing; and the question now in dispute was whether, under the circumstances of the case, this verdict carried expenses. The Lord Ordinary (Ormidale) on the 28th November 1866, found that it dia. His Lordship observed in his note:—

“As a general rule, it cannot be denied that a pursuer of an action of damages, for slander or defamation of character, who has succeeded in obtaining a verdict, although only for nominal damages, is entitled to expenses. At the same time, it is equally undoubted that exceptional cases have occurred where a pursuer in an action of damages for slander or defamation of character has not been found entitled to expenses, notwithstanding of his having been successful in obtaining a verdict. The question here is, whether the present case falls under the general rule or the exception.

The Lord Ordinary is of opinion that the present case is not to be treated as an exceptional one, and therefore the pursuer is entitled to expenses. In arriving at this conclusion, he has been influenced by the following considerations:—(1.) The slander or defamation by the defender, of which the pursuer complained, as set out in the issue, is of a very serious description. (2.) The jury, while by their verdict they found it proved that the slander or defamation complained of was uttered by the defender, have at the same time found that it was false and calumnious, and to the loss, injury, and damage of the pursuer. (3.) The defender down to the last made no apology or retractation; and (4.) while in consequence of no publication of the slander being proved, the jury may have thought it sufficient to give the pursuer only nominal damages, it cannot be overlooked that it was of importance to the pursuer to have the very serious charge made against him by the defender negatived by a jury; the more especially as the letter containing the slander also expressed something of the nature of a threat, that the matter would be made known by the defender to his friends in his line of business in Liverpool.”

Against this interlocutor of the Lord Ordinary the defender reclaimed.

Rhind (with him Rutherfurd Clark), for

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him, argued—1. If the case is one of damages for defamation, it falls within the exception stated in the Lord Ordinary's note, and not within the general rule. Mason v. Trail, 2d July 1851, 13 D. 1282; Duncan v. Balbirnie, March 3, 1860, 22 D. 934. 2. But this cannot be said to be an action of damages for defamation. The letter was never published beyond being sent to the pursuer; and thus the injury done was one not to his character but to his feelings only. Lovi v. Wood, 1st June 1802, Hume p. 613.

The Solicitor-General and Shand, for the pursuer, were not called upon.