Scottish Court of Session Decisions

The pursuer in this action, an accountant in Glasgow, at a meeting for the election of trustee and commissioner on the sequestrated estates of John Mitchell, held on 13th December 1870, attended and voted as mandatory for a number of creditors in favour of Henry M'Lachlan. At the same meeting the defender, as mandatory for certain other creditors, put himself in nomination for the trusteeship. Thereafter the defender had a list of objections to the election of M'Lachlan as trustee prepared and lodged with the Sheriff-Clerk as follows:—“The eligibility of the said Henry M'Lachlan is objected to in respect—(1) That he altered and amended the oaths of the deponing creditors after these were emitted and signed by the deponents and the attesting justices; and further, that he was privy to the alterations made upon the oaths by William Lucas, writer in Glasgow, and Kenneth M'Donald, law clerk, Glasgow, or by one or more of the clerks in the employment of Gordon, Smith, & Lucas, writers, Glasgow, the agents of the bankrupt; and (2) That the said Henry M'Lachlan, or some one acting for him, in his knowledge, and with his consent and authority, gave, or has promised and agreed to give, a consideration in money to Patrick M'Caig, accountant in Glasgow, in respect of the vote tendered and given by him in favour of the said Henry M'Lachlan as trustee.”

On 12th January the Sheriff, after a proof which failed to bring home to M'Lachlan the allegations in the objections, found him duly elected trustee. On 24th February 1871 the pursuer raised the summons in this action, which concludes for £90 in name of damages in respect of the allegations contained in the objections. The defender pleaded that the objections being lodged by his agent unknown to him, and without his instructions, he was not responsible, and that, assuming he did authorise the statements, they were justified by the pursuer's actings in connection with the sequestration, and were privileged, as being contained in a pleading forming part of judicial proceedings to which they were pertinent; and further, that having been made ex malitia, the pursuer could not maintain action for any loss or injury sustained by him.

On 22d May 1872 Sheriff Galbraith “Finds it proved out of the defender's own mouth that he read and allowed the statements complained of to form part of the pleadings in the sequestration process; Finds that these statements are slanderous, and fitted to injure the pursuer in his business, inasmuch as they amount to a charge of corruption in the discharge of the duties entrusted to him by his client; Finds that there is no evidence whatever to support the plea of justification, and that therefore the stating of that plea indicates ill will, or at least great rashness; Finds that the defender must be held personally responsible for all the statements made in his name in the competition which he followed forth, the more especially so that he was present at discussions before the Sheriff, and the objectionable statements were not withdrawn; Therefore finds the defender liable to the pursuer in the sum of £50 sterling, as damages and solatium; Finds the defender liable to the pursuer in expenses; Allows an account thereof to be given in, and remits the same, when lodged, to the Auditor of Court to tax and report, and decerns.

“ Note.—The Sheriff Substitute would have regarded the defender's position with more favour but for the plea of justification stated, as it must have been after mature consideration, and in support of which not one title of evidence has been adduced. Although the defender may not have had any animus against the pursuer in the competition, it is very plain from his examination in this case that he desired to underrate the pursuer's position, while at the same time professing nothing but friendliness.”

On appeal Sheriff Bell, on 6th August, “Finds that it appears that the only grounds upon which the action is laid have not been substantiated, and all that can be laid to the defender's charge is, that after he became aware of the contents of the note he did not formally repudiate the said statement; Finds that it has long been established that a statement made in a judicial process, which is pertinent to the cause, is privilege, and cannot form the ground work of an action of defamation unless it can be proved to have been made maliciously; Finds that the defender has all along denied that he entertains any malice or ill will towards the pursuer, and states in his defences (article 13), that whilst denying all liability he was prepared to make a suitable apology to the purser for any injury to his feelings, character, and reputation, he might conceive to have been occasioned by the unauthorised statement of his (the defender's) agent; Finds that the presence or absence of malice is to be inferred from the whole circumstances of

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the individual case, and the facts which have been here instructed do not bring home malice to the defender, considering, 1st, that the insertion of the injurious matter in the note of objections was not done by him or by his instructions or with his knowledge; 2d, that he is not proved to have on any occasion adopted or repeated the statement, but, on the contrary, seems to have taken an early opportunity of intimating to his agent that he did not wish it to be insisted in; 3d, that the said statement was pertinent to the issue of the competition between the defender and M'Lachlan, and although the defender did not formally withdraw it when it first came to his knowledge, this may have been because he supposed that his agent had not made it without probable cause; and 4th, that nothing has transpired to show that the defender was in point of fact actuated by malice to the pursuer; Therefore sustains the defences, and assoilzies thed efender from the conclusions of the action; but, in respect the defender has alleged in the closed record, certain actings by the pursuer in Mitchell's sequestration which he maintains went to justify the statement complained of, and yet failed to prove any such actings, finds no expenses due, and decerns.”

The pursuer appealed, and argued that the privilege attached to such a statement only so long as the party founded on it as relevant and intended to prove it, that here, as no attempt had been made to prove it, and as it still remained in process, the privilege had ceased.