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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> David Rankine v. William Roberts [1873] ScotLR 11_89 (26 November 1873)
URL: http://www.bailii.org/scot/cases/ScotCS/1873/11SLR0089.html
Cite as: [1873] SLR 11_89, [1873] ScotLR 11_89
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
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v.
Facts:
In a case where the presiding judge in a jury trial admitted proof of malice in replication to a defence of privilege, held that this was not matter for a bill of exceptions, being within his discretion.
David Rankine, parish schoolmaster and sessionclerk, Bathgate, raised an action for slander against William Roberts, auctioneer, Bathgate. Issues were adjusted and sent to a jury, and were tried before Lord Ormidale on July 21st and 22d, 1873. The pursuer and defender led evidence, and on the conclusion of the defender's evidence, in which he
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endeavoured to prove privilege, the pursuer's counsel moved for leave to lead evidence in replication with a view of proving malice. The defender's counsel objected, but the presiding Judge repelled the objection, and defender's counsel thereupon excepted to this ruling. In addressing the jury, Lord Ormidale directed them that the defender's statement referred to in the first issue was not a privileged communication, and this direction was excepted to on behalf of the defender; and his counsel asked his Lordship to direct the jury that the said statement was privileged, which direction his Lordship refused to give, and this ruling also was excepted to. The jury returned a verdict in favour of the pursuer, and awarded £100 damages. The case came before the First Division on a Bill of Exceptions, and a rule to show cause why there should not be a new trial on the ground that the verdict was contrary to evidence. Defender's Authorities— Macbride v. Williams, Jan. 28, 1869, 7 Macph. 427; Fenton v. Currie, Feb. 22, 1843, 5 D. 705; Starkie on Libel, 274; Scarll v. Dixon, 1864, 4 Foster & Finlason, 250; Gibb v. Barron, July 1, 1859, 21 D. 1099.
Pursuer's Authorities—55 Geo. III. c. 42, § 7; 13 and 14 Vict. c. 36, § 45; Watson v. Burnet, Feb. 8, 1862, 24 D. 494; Milne v. Bauchope, July 19, 1867, 5 Macph. 1114; Macfarlane's Practice, pp. 127, 128; Willox v. Farrell, Feb. 26, 1848, 10 D. 807; Leslie v. Blackwood, July 22, 1822, 3 Murray, 157.
At advising—
Now, it appears to me important to consider whether this is proper subject matter for exception, and it seems to me that it was a matter wholly in the hands of the presiding Judge, and a matter for his discretion. It must be kept in mind that we are not here dealing with an objection to the competency of a piece of evidence, nor with the admissibility of a particular witness. The objection is only as to the time when the evidence was led. It is no doubt true that an objection to the competency of evidence may form a ground for exception, and that view is justified by the Act of 1815; but then this difficulty arises. There are two modes of asking for a new trial in respect of a miscarriage of justice, and in dealing with these our guide is still the Act of 1815. By sec. 6 of that statute it is enacted “that in all cases in which an issue or issues shall have been directed to be tried by a jury, it shall be lawful and competent for the party who is dissatisfied with the verdict to apply to the Division of the Court of Session which directed the issue, for a new trial on the ground of the verdict being contrary to evidence; on the ground of misdirection of the Judge; on the ground of the undue admission or rejection of evidence; on the ground of excess of damages, or of res noviter veniens ad notitiam, or for such other cause as is essential to the justice of the case; provided also that such interlocutor granting or refusing a new trial shall not be subject to review by reclaiming petition, or by appeal to the House of Lords.” Under this section any kind of objection may be the subject of an application for a new trial, but there are certain specified grounds for exception, which are given in sec. 7. These are as to the competency of witnesses, the admissibility of evidence, or other matter of law arising at the trial, and the judgment of the Court in these cases is subject to appeal to the House of Lords. The distinction is plain. Under sec. 7 the question is to be one of law, and must be one arising out of an objection to the competency of witnesses, the admissibility of evidence, or other matter of law. Now, I think that the true construction of sec. 7 is that nothing but a question of law can be the subject of a bill of exception. In the first place, then, Is this a question of law? I think not. I think it is a question as to the discretion of the presiding Judge. I do not say that the presiding Judge may not exercise his discretion in such a way as to make an appeal to this Court competent, but certainly I do not think that has been the case here.
Though I have thought it right to express my opinion on this question, yet the matter is before us in another way also. We have here a motion for a rule to show cause why there should not be a new trial on the ground that the Judge ought not to have admitted the evidence in replication. As regards that matter, my opinion is, and more particularly after hearing the views of his Lordship. who tried the case, that he acted wisely and well in admitting that evidence. In the second place, however, I am of opinion that that evidence was not necessary to prove the pursuer's case, and that he had already proved enough to entitle the jury to find malice proved. So far as the first exception, therefore, is concerned, I do not think that it gives any ground for a new trial. The second exception is on a different ground. The Lord Ordinary directed the jury that the statement by the defender was not privileged, and the defender's counsel thereupon excepted to that direction, and asked for the following ruling:—“That the defender being a member of the congregation of the Parish Church of Bathgate, and the pursuer clerk to the kirk-session of the parish, the communication made by the defender to Mr Smith was a
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To this ruling, also, the defender's counsel excepted, so that the second and third exceptions may be considered together. Now, the first question is, Was the communication in the first issue privileged? Whatever may have been the character of that contained in the letter with which the second issue deals, I cannot have the smallest doubt that the statement in the first issue was not privileged. What is proved is that the defender came into the shop of John Smith in Bathgate, and there, in the presence of another witness, said, “that the pursuer had been drunk and disorderly within the Royal Hotel, Bathgate, late on the night of the 14th, or early on the morning of the 15th November 1872, or about that time, and had been in consequence forcibly ejected or thrown out from said hotel by two of the female servants therein, and left by them outside in a state of drunkenness.”
Now the privilege with which the defender is supposed to be invested is, that he made this statement as an elder of the church. I do not stop to inquire whether that could ever have been privileged, but certainly it never could have been so here. If he had been privileged on that ground he should have proceeded cautiously and carefully, and avoided all publicity, but this was just what he did not do, and so I have no doubt as to the second and third exceptions, that they can never stand. The only question which remains is as to the rule for a new trial, whether the verdict is contrary to evidence. It is said on behalf of the defender that it is so in these particulars. It is not said that the words contained in the first issue were not uttered, or that the letter contained in the second issue was not sent and received, but then it is said that the jury went against the evidence in finding malice proved, and also in respect of their finding that the negative of the counterissue of veritas was proved. All I can say as to that is, that, in the first place, there was good evidence of malice if the jury believed the witnesses; and, secondly, that not only was there no evidence, but there was a complete disproof, of veritas. The question is, Were the jury right or wrong in believing the witnesses? and that is a question solely for the jury to consider. They had before them the evidence for the pursuer, and they had the contradictory evidence for the defender, and they have found for the pursuer on both issues, and we cannot meddle with their verdict. In regard to the first exception, I forgot to say that there is a case directly in point, I mean the case of Christie v. Thomson, Jan. 28, 1859, 21 D. 337. In that case the pursuer was bound to prove that he had given notice of action, but omitted to do so till he and the defender had both closed their cases. The presiding Judge allowed evidence of notice to be then led, and a bill of exceptions was refused on the ground that the Act of Sederunt of Feb. 16, 1841, was merely directory, and that it was within the discretion of the presiding Judge to admit evidence out of order.
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After some hesitation, and on consideration of such precedents as can be found, including the case of Christie v. Thomson, I have come to the conclusion that the point is not a proper subject for an exception. It is rather a matter of procedure during trial, to be disposed of according to the judgment and discretion of the presiding Judge. It is not a direction in point of law, to be brought up by an exception. It is, however, not beyond the reach of remedy. If the exercise of the discretion of the Judge has led to injustice, the matter can be considered, and redress given in disposing of the motion for a new trial. I do not think there has been such injustice in this case. The evidence offered was not incompetent. The time for adducing the evidence was within the discretion of the Judge; and his decision on the question of procedure has not led to injustice. On the merits of the disposal of the matter by the Judge who tried the cause, I see no reason to doubt that his decision was just and right.
In regard to the second exception—that taken to the ruling that the statement referred to in the first issue was not privileged, and in regard to the third and relative exception, I really have no difficulty. I think the ruling right. The privilege is recognised in the second issue, and with that we have at present nothing to do; but the defender pleads privilege. In accordance with that Presbyterian polity which is recognised and accepted by all the branches of the Presbyterian Church, the moral character and conduct of a member, and more especially if he was an elder of a Presbyterian Church, may fairly be brought under the notice of the kirksession of which the minister is moderator, with a view to the dealing with those who offend—that is, exhorting them, reclaiming them if possible, rebuking them if necessary. Of course such discipline ought to be exercised with discretion, and in a Christian and charitable spirit, but its existence and recognition in the Presbyterian Churches of Scotland is beyond doubt.
If therefore a member of a Presbyterian congregation does in bona fide bring under the notice of the minister and kirk-session the conduct of a member of the congregation, and does so in the regular and becoming manner prescribed by the law and custom of the Church, I think he has some degree of privilege. He is considered as exercising a right and, it may be, fulfilling a duty. Therefore, even though the charge which he makes turns out on inquiry to be unfounded, he is not necessarily liable in damages. His privilege protects him unless malice is proved.
This remark is especiallyapplicable and important when the person whose conduct is called in question is not only a member of the congregation and of the church, but is also session-clerk and parochial schoolmaster, a position in which his conduct and character is of unusual importance.
We have nothing to do at present with the second issue, in regard to the letter sent by the defender to the parish minister as moderator of the kirksession. No question is now raised about it. But it serves to show the difference between a privileged statement and a statement without privilege. The slander referred to in the first issue was uttered by the defender in a shop, and in presence of a stranger, and it is manifest that it was uttered, not as a communication with a view to discipline, or as a step in procedure towards a complaint to the kirk-session—the competent Court to be approached with a view to church discipline—but, either with intent to injure, or perhaps from mere recklessness and foolish gossip, but with the necessary result of injury. The defender was in the discharge of no duty in making the statement in Mr Smith's shop, and in presence of Mr Young, that “the pursuer was thrown out of Stewart's Hotel, drunk, on the pavement.” The defender did not then request that his statement should be laid before the session. He did not say he was going to complain to the session. He made the statement on the 16th of November 1872, and after starting the slander he took no further step. In point of fact he did not complain to the minister or the kirk-session till the 12th of February 1873. The jury have found that the statement made by the defender on the 16th November was false. Now, as the defender was on that occasion not bound or called on to speak to Mr Smith or Mr Young of the pursuer's conduct, and was, in so speaking, not in the discharge of any duty, it follows that he spoke on his own responsibility and at his peril, and if his statement was false and injurious he had no privilege.
This brings me to the second part of the case—the motion for a new trial on the ground that the verdict is contrary to evidence.
I do not mean to dwell on this question, or to enter on the details of the proof, though I have read it carefully, and have heard much comment upon it. There is conflicting testimony. In regard to several of the witnesses—including, among others, both the pursuer and the defender, and the two girls, and Baxter—a question of credibility and of the degree of credibility is raised. But such questions are appropriately and peculiarly for the consideration of the jury, who, on weighing the conflicting evidence, have decided for the pursuer. It is on no light ground that the Court can interfere with the verdict of a jury where so much necessarily depends on the personal credibility of witnesses whom the jury saw and heard, and in regard to whom they were entitled and bound to form their own opinion. I am satisfied that we ought not to disturb this verdict.
There are nominally three, although practically only two, exceptions— First, An exception to the ruling of the Judge who presided at the trial, allowing the pursuer to lead some evidence in replication after he had closed his own case, and after the defender had closed his; and Secondly, An exception to the
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In regard to the first of these exceptions, I am of opinion that the subject matter of it cannot be competently entertained by the Court under a bill of exceptions, and can only be considered in a motion for a new trial. It is true that by the 7th section of the statute 55 Geo. III. cap. 42, establishing jury trial in civil causes in Scotland, it is made competent to except to the opinion and direction of the Judge presiding at a trial, “either as to the competency of witnesses, the admissibility of evidence, or other matter of law arising at the trial.” But although this language in its ordinary sense may be said to cover, as the defender's counsel maintained it did, their objection to the ruling of the presiding Judge admitting the pursuer's evidence in replication, I do not think that it can be held to do so in the statutory sense. What, I think, the statute refers to is the receiving or allowing to be adduced evidence inadmissible in itself, in respect of some well founded legal objection. In the present instance, however, the evidence which was allowed in replication is not said to have been in itself exposed to any objection whatever. On the contrary, it was conceded that if it had been adduced by the pursuer at the proper stage, viz., before he had in the first instance closed his case, it would have been clearly admissible. The defender's objection to the evidence is merely that it was offered by the pursuer, and allowed by the presiding Judge, out of time, or, in other words, at an unusual and improper stage of the trial. He maintained that the pursuer having closed his case he was too late in tendering it, and that the presiding Judge was wrong in allowing it after the defender had closed his case. In this view, the defender's objection appears to me to amount to nothing more than that there was an irregularity in the form of process or mode of proceeding observed at the trial; and there can, indeed, be no question that there was a departure from the usual mode or order in point of time observed in leading the evidence as prescribed by the 27th section of the Act of Sederunt of 16th February 1841, passed for the purpose of regulating proceedings in jury causes. But that Act of Sederunt has no connection whatever with the 7th section of the Act 55 Geo. III., cap. 42. It was passed in terms of another section of that Act altogether, viz., the 40th section, which authorises the Court to frame “such rules and regulations as may be necessary for ordering the form of process, and regulating the manner of proceeding at the trial of jury causes.”
It is, in these circumstances, clear to me that the defender's objection, referred to in his first exception, must be held to relate “to the form of process,” or “manner of proceeding” at the trial, and not to the admissibility of evidence in the sense of the 7th section of the 55th Geo. III. cap. 42, as contended for on the part of the defender, and as no such objection can be dealt with by way of exception, it follows that the present bill of exceptions, so far as the first exception is concerned, is incompetent.
It by no means follows, however, that supposing the irregularity complained of by the defender in his first exception can be shown to have operated injustice to him, that he is without a remedy, for by section 6th of 55 Geo. III. cap. 42, he is entitled to redress, not by bill of exceptions, but by motion for a new trial—that section providing that a party may apply by motion for a new trial upon a variety of specified grounds, “or for such other cause as is essential to the justice of the case.” The question then arises Whether, in respect of the alleged irregularity, the defender is entitled to a new trial under his motion to that effect? I am very clearly of opinion that he is not. It was not said on the part of the defender that any injustice was done to him by the course which was followed; and that obviously could not have been said with any truth for it does not appear that any additional evidence had been tendered for him after that in replication for the pursuer was closed, or that he even desired time to bring forward any such additional evidence. This being so, and as it was shown at the discussion that if the presiding Judge had not adopted the course he did there would have been some risk of injustice being done to the pursuer, the defender's motion for a new trial, so far as it can be held to be grounded on the alleged irregularity, is on its merits untenable. Nor will it do to say that a new trial must be allowed merely because the usual order of proceeding was departed from, and the rule of the Act of Sederunt was not observed, for it has been authoritatively settled that it is in the discretion of the presiding Judge at a trial to allow proof, although not tendered at the usual stage, and that the Court will not, either under a bill of exceptions or a motion for a new trial, interfere with the exercise of such discretion on the part of the presiding Judge, unless in circumstances very loudly calling for such interference. It was so settled in the case of Christie v. Thomson, 28th January 1859 ( 21 D. 337), although there the circumstances appear to have been more favourable for the party complaining than those of the present case. In that case, also, it was ruled that the 27th clause of the Act of Sederunt of 1841 is merely directory and not imperative. And although the point was in that case taken up under a bill of exceptions—no objection to that form of proceeding having apparently been taken—Lord Colonsay, then the Lord President, very plainly indicates his opinion that a bill of exceptions was incompetent, and that the remedy of the parties complaining was by motion for a new trial.
With regard to the defender's second exception to the presiding Judge's direction to the jury—that the statement referred to in the first issue was not to be dealt with as a privileged one—I am also of opinion that it is ill-founded. The defender may have been privileged in making a regular charge against the pursuer to the kirk-session, and so the presiding Judge held with reference to the second issue, but he certainly was not privileged in making such a charge to Mr Smith openly in that individual's shop, and in the presence and hearing of another person, who it is not pretended held any official position, or had anything whatever to do with the matter. And here I may remark that I participate very much in the views which have been expressed by Lord Deas in regard to the question of privilege as it arises in this case.
Then as to whether there was evidence for the jury entitling them to find as they did, that the defender was actuated by malice in making the charge against the pursuer referred to in the
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With regard to the defender's counter issue of veritas, I need say no more than that I entirely concur in what has been already stated by your Lordships.
The result, therefore, is, that in my opinion, not only the bill of exceptions ought to be disallowed, but also that the motion for a new trial should be refused.
The Court pronounced the following interlocutor:—
“The Lords apply the verdict found by the jury in this cause, and in respect thereof decern against the defender for payment to the pursuer of One hundred pounds in name of damages; find the defender liable to the pursuer in the expenses of process, in so far as not hitherto awarded, allow an account thereof to be given in, and remit the same when lodged to the Auditor to tax and report.”
Counsel for Defender— Fraser and Strachan. Agent— David Milne, S.S.C.
Counsel for Pursuer— Millar, Q.C., and Asher. Agent— Laurence M. Macara, W.S.