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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Keith Outram & Co [1877] ScotLR 14_591 (27 June 1877)
URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0591.html
Cite as: [1877] SLR 14_591, [1877] ScotLR 14_591
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SCOTTISH_SLR_Court_of_Session
Page: 591↓
Court of Session Inner House First Division.
[Sheriff of Lanarkshire.
Facts:
The defenders in an action of damages for newspaper libel appealed it from the Sheriff Court for jury trial. An issue was adjusted and notice of trial given, and the defenders thereafter craved to be allowed to amend the record and issues to the effect of pleading veritas convicii, thereby raising a new ground of defence. Leave granted, but expenses found due to the pursuer since the date when defences were lodged.
In an action of damages in the Sheriff Court against newspaper proprietors for slander and libel contained in an article published in their newspaper, the defenders pleaded, inter alia, (1) that they were justified in publishing the article complained of, as it was merely a report of charges made in a criminal court, which were matters of notoriety; (2) that there was no malice on their part.
The record was closed, and a proof had been allowed by the Sheriff, when the defenders appealed to the Court of Session for jury trial under the Act 6 Geo. IV. c. 120.
Issues were then adjusted, and notice of trial given for the ensuing sittings. The defenders thereafter put in a print stating that they proposed to amend their statement of facts and pleas in law, and craved the Court to open up the record that they might aver that the statements in the article were true, and that they might put in a counter issue of veritas.
They quoted the cases of Gelot v. Stewart, Mar. 4, 1870, 8 Macph. 649, and Arnott and Others v. Burt, Nov. 14, 1872, 11 Macph. 62.
At advising—
But there are some important conditions on which alone we can allow the amendment. Like all other defences, it ought to have been stated when the defenders came into Court. That is the rule both in this Court and in the Inferior Courts. I can conceive that amendments may be added to the record by a defender at a late stage which do not involve any great hardship to the pursuer, and where no great award of expenses would be necessary as a condition to their being allowed. But this defence belongs to a class of a different kind. It should have been stated when appearance was entered for the defenders in the Inferior Court. It would then have been for the pursuer to consider whether he would go on with the case, and that will now be a matter for his consideration. It is the duty of the Court, when an amendment is allowed, to place a pursuer in the same position as if the defence had been stated at the proper time. The only expense then incurred was the expense of bringing the action into Court, and he might have abandoned the action then on paying the defenders' expenses. All that he has since done may be thrown away if he is now induced to abandon the action.
This rule is not confined to this defence, but to all defences which put it upon the pursuer to consider whether or not he will go on with his action. When we allow such an amendment the payment of all expenses incurred since the defence ought to have been stated must be imposed upon the defender. At the same time, the particular circumstances of any case will always fall to be taken into consideration.
The following interlocutor was pronounced:— “The Lords having heard counsel for the parties on the competency of the proposed amendment of defences (No. 18 of process) on condition of the defenders paying to the pursuer the whole expenses incurred by him in both Courts since 17th January last, Allow the defences No. 6 of process to be amended in terms of the said proposed amendment, and the counter issue, also now proposed by the defenders, to be added to the issue for the pursuer, adjusted and settled on the 3d March last, No. 13 of process: Appoint the said issue for the pursuer, and counter issue for the defenders, to be
Page: 592↓
Counsel for Pursuer (Respondent) — Nevay. Agent— W. R. Garson, S.S.C.
Counsel for Defenders (Appellants)— Asher— Lang. Agents— Campbell & Smith, S.S.C.