Scottish Court of Session Decisions

In the early part of 1885 Messrs Drummond & Graham, accountants, Edinburgh, instituted an agency called “The Shopkeepers' Mutual Protection Agency.” With the view of attracting subscribers they issued a prospectus which set out that—“In consequence of the abolition of imprisonment for debt, the Wages Arrestment Act, the effect of the law of hypothec, and the facilities afforded the unscrupulous by the Married Women's Property Act, it is admitted on all hands that to give credit meanssimply to be cheated by a large and growing section of apparently respectable people. How to counteract this evil is a problem of the greatest importance to every person giving credit; existing trade protection offices—useful enough to wholesale houses—fail to cope successfully with it.

“This agency has been established with a view to remedy this state of matters by affording the opportunity of organisation on mutual principles to all classes of shopkeepers. It is intended to be a medium for interchange of information by enabling the trading classes to communicate one to another their knowledge of doubtful and habit and repute bad payers, and thus effectually to boycott them.

“The full advantages of the agency will be readily seen in the following departments—[Here followed a list of the departments, one of which was called the “Directory.” In the prospectus as first framed, and to some extent circulated, the passages as to the “Directory” ran thus]:—

“ The‘ Directory.’

“A book is issued to subscribers containing upwards of one thousand names and addresses of people against whom decree in absence has been obtained; the arrangement is alphabetical, and it is believed that it will prove as valuable as it is easy of reference. This will be supplemented at intervals by a ‘Cyclostyle’ list of current information.”

The prospectus then proceeded to describe the different departments of the agency, which included a defaulters' register, a department for status inquiries, and a department for the recovery of debts. Afterwards Messrs Drummond & Graham published a revised prospectus couched in terms similar to those of the original prospectus except in the paragraph regarding “The Directory,‘which ran as follows:—“ Books are issued at intervals containing names and addresses of people against whom decree in absence is obtained from time to time. It must be clearly understood that there is not the least intention on the part of the agency to insinuate or imply that the parties mentioned are unworthy of credit, the information is given as a matter of fact and without prejudice; however, in cases where credit is given or likely to be extended to parties therein named the advantage of the enquiry department is obvious.”

In one of these lists of names of persons against whom decree in absence had been obtained the name of James Andrews, solicitor, appeared. He raised an action in the Sheriff Court at Edinburgh in which he prayed the Court “to ordain the defenders to produce a list of the subscribers or members of ‘The Shopkeepers’ Mutual Protection Agency,’ conducted or carried on by them; at least to give the names and addresses of those to whom they furnished the list of those alleged to be in debt, and who refuse or are unable to pay their debts, from whom debts are irrecoverable, and who are unworthy of credit, or one or more of them, containiug the pursuer's name; to ordain the defenders to collect and produce in process the whole of the lists furnished by them as aforesaid; to ordain said lists to be destroyed; to interdict the defenders from printing, lithographing, fac-similegraphing, writing, or in any wise putting on paper and publishing, distributing, or exhibiting any lists containing the pursuer's name; and to grant interim interdict; to grant a decree against the above-named defenders ordaining them to pay to the pursuer the sum of £500.” He averred that the insertion of his name in the defenders' list inferred that he was one of the class of persons described in the opening paragraphs of the prospectus, i.e., unscrupulous in the contraction of debt, a doubtful and habit and repute bad payer, to give credit to whom was to be cheated—unworthy of credit altogether, or at least until his credit had been established by inquiry. He averred further that he was a practising solicitor, and that as there were 700 or 800 subscribers to the defenders' agency, drawn mainly from the class amongst whom he practised, he had suffered great injury by having been slaudered falsely and maliciously, and without probable cause.

The defenders averred that they were privileged; that their agency was a private medium of information; that they stated in their prospectus that they had no intention of insinuating that the parties mentioned in their lists were unworthy of credit; and that in point of fact decree in absence had been obtained against the pursuer on 18th June 1884 for £6, 7s. 3d., and on 10th June 1885 for £8, 2s. lld., which had not yet been paid.

On 10th February 1886 the Sheriff-Substitute ( Rutherfurd) dismissed the action on the ground that the pursuer's averments were irrelevant.

“ Note.—On the part of the pursuer it was admitted at the bar that two decrees in absence had been obtained against him in the Small-Debt Court on the 18th of June 1884 and 10th June June 1885 respectively, for the sums stated in the defenders’ answer to Condescendence, art. 3; and on the other hand it was conceded by the defenders that the pursuer is the person named James Andrews, referred to in the list of names as of North St David Street, where it appears that the pursuer resided for some time prior to Whitsunday 1884, when he removed to St Andrew Square; and the Sheriff-Substitute has ascertained. from examination of the Small-Debt Court book of causes, that in the decree in absence obtained against him on 18th June 1884 he is designed as residing in North St David Street. It was also admitted by the defenders, and indeed could hardly be disputed, that the circulation of the list in question among their subscribers was tantamount to publication of its contents. In these circumstances the question comes to be, whether the defenders’ publication of the list containing the pursuers’ name was or was not libellous; and the Sheriff-Substitute is unable to distinguish the case in principle from

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that of Fleming v. Newton, 1848, 6 Bell's App, 175, where the House of Lords, reversing the judgment of a majority of the Judges of the Court of Session, refused interdict against the publication of a list taken from the register of protests known as the ‘Black List,’ containing the names of persons whose bills had been protested for non-payment, on the ground that such a publication was not libellous in circumstances which did not infer malice. In delivering judgment the Lord Chancellor (Lord Cottenham), after referring to statutes and authorities to show that the register of protests is accessible to the public like the proceedings of a court of justice, observed—‘From these references it appears to me that the Legislature have thought that the public at large ought to have recourse to this register, and of all the public the defendants have the highest interest in the knowledge of its contents. They are engaged in mercantile affairs, in which their security and success must greatly depend upon a knowledge of the pecuniary transactions and credit of others. That each of them might go or send to the office and search the register is not disputed, and that they might communicate to each other what they had found there is equally certain, but what they have done is only doing this by a common agent, and giving the information by means of printing. No doubt if the matter be a libel this is a publication of it, but the transaction disproves any malice, and shows a legitimate object for the act done.’ It appears to the Sheriff-Substitute that these remarks are applicable to the present case, where the thing published is the fact that decrees in absence have been obtained against the pursuer and others in a court of justice (the Small-Debt Court), the purpose of the publication being precisely the same as in the case cited, viz., to communicate information to tradesmen which might induce them, before giving credit to the persons in question, to make some inquiry as to their position. Of course the fact that decree in absence has been obtained against a man in the Small-Debt Court does not necessarily infer that he is in bad credit any more than the fact that he is the acceptor of a bill protested for non-payment. It is true that in the present instance the defenders are not exactly in the same position as the defenders in the case of Fleming v. Newton, where the information was collected and published for a society of mercantile men by their paid agent, while here the list in question is printed by the defenders with a view to their own profit, and circu ated among a set of subscribers. But the Sheriff-Substitute does not think that that is a material distinction between the two cases. The same observation would apply to the reports of cases in the public journals, to the law reports, and to such publications as Stubbs’ Weekly Gazette, in which the pursuer's name was printed apparently without objection on his part, along with those of other persons against whom decrees had been granted in absence in the Small-Debt Court.

“The pursuer, however, alleges that by the publication of the defenders’ list he has been ‘falsely and maliciously slandered, and without a probable cause, and he has been thereby greatly injured in his feelings, reputation, and credit, as well as in his business as a solicitor,’ &c. This statement, the Sheriff-Substitute thinks, would be manifestly insufficient without some distinct averment upon record of the grounds from which malice is to be inferred, and the pursuer alleges that ‘said list is intended to represent, and does represent, that those whose names are in it are unscrupulons in the contraction of debt, are doubtful, and habit and repute bad payers, to whom to give credit is to be cheated, and that while ordinary trade protection offices fail to cope successfully with such parties, that established by the defenders is bound to do so, and ‘thus effectually to boycott’ the parties whose names are in said list.

“Consistently with the decision in the case of Fleming v. Newton, the Sheriff-Substitute does not think that the mere publication of the fact of decree having been along with the other persons named in the defenders' list, could be held to imply that the defenders' intention and motive were what the pursuer represents them to have been.

“The pursuer, however, maintains that the statement in the second article of the condescendence (quoted above) sets forth the inference naturally to be deduced from the terms of a prospectus issued by the defenders with the view of obtaining subscriptions. The prospectus states that in consequence of the abolition of imprisonment for debt ‘the Wages Arrestment Act, the effect of the law of hypothec, and the facilities afforded the unscrupulous by the Married Women's Property Act, it is admitted on all hands that to give credit simply means to be cheated by a large and growing section of apparently respectable people. How to counteract this evil is a problem of the greatest importance to every person giving credit. Ordinary trade protection offices—useful enough to wholesale houses—fail to cope successfully with it. ‘“This agency is established with a view to remedy this state of matters by affording the opportunity of organisation on mutual principles to all classes of shopkeepers. It is a private medium for interchange of information, enabling the trading classes to communicate one to another their knowledge of doubtful and habit and repute bad payers, and thus effectually to boycott them.’ It appears to the Sheriff-Substitute that this passage in the prospectus does not refer to the defenders’ list, or, as it is termed in the prospectus, the ‘directory,’but that it is descriptive of the objects of the defenders’ agency, which includes several departments—a defaulters’ register, a department for status inquiries, and another for the recovery of debts. No doubt the list or ‘directory’ is also a department of the agency, but it is nothing more than a list of the names and addresses of persons against whom decree has been taken in absence, and the copy of the prospectus sets forth that ‘it must be clearly understood that there is not the least intention on the part of the agency to insinuate or imply that the parties mentioned ( i.e., in the list) are unworthy of credit. The information is given as a matter of fact, and without prejudice; however, in cases where credit is given, or likely to be extended to persons therein named, the advantage of the inquiry department is obvious.’

“In these circumstances the Sheriff-Substitute is of opinion that the pursuer's averments are not relevant or sufficient to infer liability for damages on the part of the defenders, and

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he has therefore dismissed the action. In conclusion he has merely to observe, with reference to the pursuer's complaint that the defenders' list contains the names of only some of the persons against whom, according to Stubbs' Weekly Gazette, decrees in absence were obtained on 10th June 1885; that this circumstance is accounted for by the fact that the defenders' list, although it bears the date 1885, was printed prior to the month of June in that year. The Sheriff-Substitute has ascertained by examination of the small-debt book of causes that the list contains the names of all the persons, including the pursuer, residing in Edinburgh and its immediate vicinity, against whom decree in absence was pronounced on the 18th of June 1884.”

The pursuer appealed, and on 6th April 1886 the Sheriff ( Crichton) dismissed the appeal.

The pursuer appealed.

When the case came before their Lordships of the First Division the pursuer moved for leave to amend his record by averring that the “list of names” in which his name appeared had prefixed to it a leaflet, prominently printed, in these terms, viz.:—

“ Caution.

“It must be clearly understood that the information contained in this is intended solely for the personal use of the subscriber, and is under no circumstances to be shown or divulged to a third party, and the subscriber will be held entirely responsible for the breach or non-observance of such understanding. It is possible that there are names contained in this list of people to whom credit under certain circumstances might be given, but it is recommended that use be made of the inquiry department of the agency before the entailing the risk.”

The amendment further stated—“The said list is not and does not purport to be an abstract or copy of any judicial or public record, and beyond names and addresses no information is given. While circulating the said list, or in connection with it, and for the purpose of increasing its circulation, the defenders issued an explanatory prospectus, a copy of which is produced and referred to for its terms. The prospectus and leaflet prefixed to the said list were intended or calculated to convey to the public the representation above stated, or a material part thereof, to the prejudice of the pursuer. The defenders are not agents employed by a society of traders for mutual protection, but are parties who in issuing the said list and prospectus are seeking to increase their own private business.” He also added a statement that before the list was published the first decree in absence had been obtempered, and that the second decree had not been obtained at the date at which the list was issued.

The Court allowed the record to be amended, and allowed a proof.

From the proof it appeared that there were about 1000 Edinburgh subscribers to the agency, and some out of Edinburgh; that the list contained the names and addresses of parties against whom decree of absence had passed in Edinburgh, Leith, and Corstorphine; that the names of wholesale houses and companies were omitted; and that neither the person at whose instance a decree wa3 obtained, nor the sum in it, nor the date of it, were inserted in the list. It appeared further that a decree in absence for £6, 7s. 3d.

had passed against the pursuer on 18th June 1884, but that he had paid the account almost immediately afterwards, and that another decree of 10th June 1885 had passed against him and was still unpaid because he had not funds to meet the account.

On their Lordships resuming consideration of the case the pursuer argued that this was a libellous publication. The opening sentences of the prospectus pointed to the persons whose names were inserted in the list, and accordingly they were held out to be unscrupulous persons who, seeming to be respectable, cheated shopkeepers, and were habit and repute bad payers. Further, these lists were selected lists, and therefore they were not the transcript of a public or judicial record. It was therefore a relevant ground of damage that the prospectus and caution stated with regard to selected parties that there was great unlikelihood that they would pay their debts. Besides, at the date of the first publication Andrews had paid the account for which the decree in absence had passed. The second decree was subsequent to the publication. Thus the plea of veritas fell to the ground. “Stubbs” was the transcript of the judicial record, and was contemporaneous. This list possessed neither of these qualities— M ‘Natty v. Oldham, January 22, 1863, 8 Law Times (N.S.) 604.

The defenders argued—There were various departments in the business, and this was to be kept in view in reading the prospectus. The application of the introductory paragraph in the prospectus was not to be limited to the “directory.” If the information was well-founded in fact the defender could not be guilty of slander, for slander implied two elements—(1) That the statement be false, and (2) that it be calumnious. Here the statement was true, and looking to the pursuer's position it could not be said to be calumnious. It was impossible to say that the caution did not truly apply to such a case as this.

At advising—