Scottish Court of Session Decisions

This was an action of damages for £1000, as raised by William Brims, architect and Dean of Guild, Wick, against Peter Reid & Son, printers and publishers of the John O'Groat Journal. The pursuer had been for some years a member of the town council of Wick and Dean of Guild of the burgh.

The John O'Groat Journal of date 16th October 1884 contained a letter headed “Our Dean of Guild” and signed “Nemesis,” but the publishers refused to disclose the name of the author of this letter. It was in these terms, and the pursuer complained of it as libellous:—

“ Our Dean of Guild.”

“To the Editor of the John O'Groat Journal.

“Sir—As our Dean of Guild is one of the members of the Town-Council who seeks re-election in November, I think it would not be amiss if a few remarks were made on his past term of office.

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“The late George Simpson, who occupied the post of Dean of Guild for many years, was the very antitype of Mr Brims, being late and early, in season and out of season, found at his post attending to the well-being of the town. The erection of buildings in the royal burgh did not entirely engross his attention; he always personally superintended the cleansing, construction, and repair of the roads and drains, and generally by his untiring services materially benefited the town. On the retirement of Mr Simpson, our present Dean, who was being appointed to every public office as a vacancy occurred, thought fit to adorn himself with the order of Dean of Guild, and, as a matter of course, the installation took place. He was possessed of all the necessary qualifications—superfluous time, engineering and architectual abilities of no mean order, and a mind above small things. On entering office he had £300 placed at his disposal—being money paid over to the common good for the county's share in the town hall. To spend this money in an approved fashion great measures were spoken of. Carefully designed plans for a new fish-market were submitted to the Council—and oh ! such a beautiful fish-market that fish-market was to be. Its floor was to be of solid concrete, its shelves and counters of polished Caithness pavement, and roof of iron; but alas! like many a ‘weel laid scheme,’ the fish-shed has ended in thin air. It took six months to admire the beautiful designs, and six months more were spent in carefully sealing them up for depositing among the archives. When the time came for again considering the matter, it was to be like a certain biblical character, part of wood and part of iron. When last seen it was shown as a ‘teefa’ to a public-house in the market-place. It is now apparently in course of construction. As an object of interest it is unique. ‘Come, oh, come and see it!’

“The Dean's attention to our roadways has been very satisfactory from a certain point of view. But with the ratepayers the ‘point of view’ alters considerably. The approaches to the Gaelic Church, Alexandra Place, and Macleay Lane required the earnest attention of the Dean, and £100 of public funds were spent in making good the access to the various properties in these localities. It was also necessary for the town to acquire the service of a ‘handy man,’ who would know nothing, and be able to turn his hand to any kind of job. This was well managed. After much fishing from many waters the Dean drew William, a namesake of his own, and one who was apt to learn. This same William is a most wonderful man. He has proved the opposite of the old saying, ‘Ye cannot serve two masters.’ He could not only do that, but he could serve two masters in different places and at the same time. His accounts abundantly prove that his services were well divided, although the pay possibly came from the one purse. Honour after honour has been heaped upon the Dean in acknowledgment of his great acquaintance with the game of ‘how not to do it.’ He either moves or seconds every motion in the Council, he is a member of the harbour trust (through his knowledge as an architect), and of the police commission until lately, when he was washed out. He is also convener of several committees, which he manages very well so that their labours may be as fruitless as possible; in fact, he is chief of a ring which has too long been dominant and much too long tolerated in our midst. However, after six years of office we have found him out. We know now what we knew when he entered office. The public treasury is empty, and not one iota of public benefit to show for it. It is time that the systematic throwing of dust in the people's eyes had come to an end. The royalty is tired of it, and the extended area will not be tooled by a clique. The new voters are determined to assist the old voters in having much needed reforms carried, and our present Dean is not the man to whom these reforms should be entrusted. At the end of six-years we find the town as filthy as ever, drains lying choked full of sewage, and streets kept like a farmer's yard. Any reforms which have taken place have been wrested by force from the Dean and his party. The young blood which will at November be returned to the Council should at once commence a sweeping reform of all abuses and nuisances at present existing.—Yours, &c Nemesis.”

The pursuer averred that the statements in the letter were false and calumnious; that the defenders published it maliciously; that he was falsely and calumniously represented as a dishonest person, who abused his municipal appointments so as to benefit himself at the expense of the town of Wick; who had dishonestly employed William Waters referred to in the letter to do his private work at the town expense. He averred that the statements were intended to mean, and did mean, that he had been unfaithful to the public trust reposed in him, and had in his municipal position acted corruptly for his personal benefit.

The pursuer also averred that previous letters of an offensive character had appeared in the columns of the John O'Groat Journal, and that he had treated them with contempt; but that the present letter rendered it necessary for him to vindicate his character, and to put a stop to the appearance of such letters in future.

The defenders admitted publishing the letter complained of, and also that they declined to divulge its authorship. They averred that at the time when the letter was written a municipal election was about to take place in Wick, and that the pursuer was a candidate for re-election; that the letter in question was not inserted from any malicious motive, but only as a criticism by a member of the public on the conduct of a candidate for office. They maintained that the letter was a fair criticism of a public man in his public capacity, that it was not libellous, and was privileged; and further, that all the statements it contained were currently believed to be true, and were honestly believed by them to be true.

They averred that the pursuer was, as stated, proprietor of property in the places mentioned in the letter, and that William Waters was employed both by the town and privately by the pursuer.

They further averred that upon 2nd January 1885 they wrote to the pursuer's agents expressing their regret that the pursuer should regard as a malicious attack upon his private character what was intended to be only a fair criticism of him in his public capacity.

They pleaded, inter alia, that the statements complained of were not defamatory, and, separatim, they were privileged, and (4) “the statements contained in the said letter are true.”

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The following issue was proposed by the pursuer, and by interlocutor of 19th March adjusted and approved by the Lord Ordinary—“Whether, on or about 16th October 1884, the defenders printed and published in the John O'Groat Journal the letter printed in the schedule hereto annexed? And whether the said letter is in whole or in part of and concerning the pursuer, and falsely and calumniously represents the pursuer as a person who had been unfaithful to the public trust reposed in him as Dean of Guild of the royal burgh of Wick, and had in his municipal position acted corruptly for his personal benefit, to the pursuer's loss, injury, and damage? Damages laid at £1000.”

The schedule contained the letter printed above.

The Lord Ordinary disallowed a counter-issue proposed by the defenders, and putting the question “Whether the statements in the said letter are true?”

“ Opinion.—I was of opinion that the letter complained of, and particularly that part of it which relates to the pursuer's actings as Dean of Guild in regard to the roadways forming approaches to the Gaelic Church, Alexandra Place, and Macleay Lane, support an innuendo that he had been unfaithful to the public trust reposed in him, and had acted corruptly for his own personal benefit. I therefore held that an issue must be allowed.

“(2) On the question whether the pursuer was bound to take an issue averring malice, I was of opinion that a newspaper is not privileged in such comments, as a ratepayer is in discussing the claims of a candidate for public office at a public meeting held for the purpose of considering the claims of candidates. A newspaper in publishing such a letter acts purely as a volunteer, and takes the responsibility of one who publishes a statement without any call to speak on the subject. It was admitted that in no instance has a pursuer of such an action been compelled to take an issue of malice, and it appeared to me that there is no principle for the contention that malice must be put in issue. In giving this opinion I do not question the right of newspapers to comment upon the public acts of public men. But that right, in my opinion, does not extend to uncalled-for attacks upon character.

“As to the counter-issue, I had no hesitation in disallowing it. No example of a counter-issue in which it is not proposed to justify the alleged libel was alleged to exist. The defenders admitted that they did not by their proposed counter-issue offer to prove that the pursuer had applied public moneys to roadways which did not require attention, or required attention only because his properties in that neighbourhood gave him an interest in making good the access thereto.”

The defenders moved the Court to vary the issue by the insertion of the word “maliciously” so that the issue would run, that the letter “falsely, calumniously, and maliciously represented the pursuer,” &c. They also reclaimed against the interlocutor disallowing their issue.

Argued for them—This was a case of privilege. It was the case of the newspaper comment upon the public character of a public man who was offering himself for re-election to a public office; the letter complained of did not exceed the limits of fair criticism; the pursuer was bound in such a case to prove malice, and it should be put in issue.

Authorities— Drew v. M'Kenzie, February 28, 1862, 24 D. 649; Sharp v. Auld, July 14, 1875, 2 R. 940; Docharty v. Coghill, October 18, 1881, 19 S.L.R. 96; Odger v. Mortimer, 28 Law Times, 472; Weyson v. Walter, L.R. 4 Q.B. 73.

Argued for respondent—There was no privilege in the case of anonymous writings, nor was there any privilege which allowed a newspaper to attack the private character of an individual. There was no case in which, when a newspaper was brought into Court the pursuer had to insert the word “maliciously” in the issue— Dun v. Bain, 4 R. 317. Public character might be attacked but not private moral character. The editor took the place of the anonymous writer in refusing to disclose his name. If the writer of the letter was known, and the action was directed against him, malice would not require to be put in issue. So in an action against the publisher of the anonymous letter who takes all the author's responsibilities, the pursuer should not be called on to aver malice.

Authorities— Miller v. Robertson, December 2, 1852, 15 D. 170; Macdowall v. Guthrie, June 25, 1853, 15 D. 778; Spotiswood v. Campbell, 32 L. J. Q.B. 185.; Alexander v Macdonald, 4 Murray, Jury Reports, 94.

At advising—