Scottish Court of Session Decisions

The Education (Scotland) Act 1872 (35 and 36 Vict. cap. 62), sec. 70, provides that the school board may summon before them any parent who fails to perform the duty of providing elementary education for his child or children, and if he shall fail to appear, or to satisfy the board that he has not failed in such duty without reasonable excuse, and if he shall not undertake to perform such duty, “it shall be lawful to and shall be the duty of the school board to certify in writing that he has been, without reasonable excuse, failing to discharge the duty of providing elementary education for his child or children, and on such certificate being transmitted to the procurator-fiscal of the county, or district of the county, in which the parent resides, or other person appointed by the school board, he shall prosecute such parent before the sheriff of the county for such failure of duty as is in the certificate specified, and on conviction the parent shall be liable to a penalty not exceeding twenty shillings, or to imprisonment not exceeding fourteen days,” &c.

The Education (Scotland) Act 1883 (46 and 47 Vict. cap. 56), sec. 9, provides—“If the parent of any child, without reasonable excuse, neglects to provide efficient elementary education as aforesaid for his child, or fails to secure the regular attendance of his child at some public or inspected school, it shall be lawful for the school board, after due warning to the parent of such child, to complain to a court of summary jurisdiction, and such court may, if satisfied of the truth of such complaint, order that the child do attend some public or inspected school willing to receive him and named in the order.… An order under this section is in this Act referred to as an attendance order.” And by section 10 it is enacted—“Where an attendance order is not complied with without reasonable excuse, a court of summary jurisdiction, on complaint made by the school board, may, if it think fit, impose a penalty not exceeding twenty shillings, with expenses, or of imprisonment not exceeding fourteen days.”

Archibald Macaulay, crofter, Illeray, North Uist, was prosecuted in the Sheriff Court at Lochmaddy by Archibald Macdonald, the compulsory officer appointed by the School Board of North Uist, for failure to educate his children. The Sheriff-Substitute ( Webster) convicted the accused of the offence charged, and he was imprisoned for three days, having failed to pay the fine imposed. Upon 3d June 1887 the High Court of Justiciary suspended the conviction and sentence, on the ground that no certificate under section 70 of the Act of 1872 had been produced, and that the attendance order produced was not sufficient as it did not apply to the children named in the complaint.

Macaulay then raised this action of damages against Archibald Macdonald, the School Board officer, Donald Dott, clerk to the School Board, and the School Board and the individual members thereof.

The pursuer averred—“(Cond. 6) The foresaid proceedings were grossly unjust, illegal, and oppressive, and were entered upon recklessly and in utter disregard of criminal procedure and the provisions of the Education Acts, and were malicious and without probable cause. (Cond. 8) The proceedings which are complained of were authorised by the said School Board, and the illegal prosecution and imprisonment of the pursuer were due to, and the consequence of, the instructions which they incompetently issued. They did not give the pursuer due warning in terms of said section (sec. 9 of the Act of 1883); they did not present a complaint to the Sheriff and obtain the ‘attendance order’ as a condition precedent to instituting the foresaid proceedings, nor did they inquire whether the pursuer had any reasonable excuse for the non-attendance of his children at school before instituting said proceedings. Further, no formal minute of authority was produced to the Sheriff, nor any evidence to show that the Board authorised said proceedings, and no written evidence was produced to show that the foresaid provisions of the statute had been complied with by the Board. The said complaint was signed and served by the defender Archibald Macdonald, who also acted as nominal prosecutor and witness. (Cond. 9) Further, the pursuer avers that the defender Dott was actuated by malice towards him, and instigatedt the foresaid proceedings maliciously and without probable cause. He prepared the said complaint, instructed the defender Archibald Macdonald to serve it, appeared at the trial, and acted partly as prosecutor and partly as Sheriff-clerk Depute. At the conclusion of the trial, the defender Dott procured the conviction, and in Court desired Police-Constable Colin Macdonald, residing in Lochmaddy, an officer of Court, to incarcerate the pursuer upon it. The said Colin Macdonald refused, and the defender Dott thereupon handed the conviction to the defender Archibald Macdonald, with instructions immediately to incarcerate the pursuer, which was forthwith done.”

The pursuer pleaded—“(1) The pursuer having been injured in his feelings, reputation, and character by the defenders' said illegal and unwarrantable proceedings, he is entitled to

Page: 92↓

reparation and solatium as libelled. (2) The defenders having in the foresaid circumstances acted maliciously and without probable cause, and the pursuer having suffered injury thereby as set forth, is entitled to decree as libelled.”

The defenders pleaded, inter alia—“No relevant case.”

The Lord Ordinary ( Lee) on 16th November 1887 assoilzied the defenders from the conclusions of the action, so far as directed against them personally, and approved of the following issue for the trial of the cause:—“Whether on or about the 22d day of April 1887 the defenders, the School Board of the parish of North Uist, wrongfully and illegally caused the pursuer to be tried and convicted before the Sheriff Court at Lochmaddy as a person who had contravened the Education (Scotland) Acts 1872 to 1883, by having without reasonable excuse failed to discharge the duty of providing efficient elementary education for Flora and Jessie Macaulay, two of his children, and having failed to secure the regular attendance of said children at school after receiving due warning of said failure, and to be adjudged therefor to forfeit and pay the sum of five shillings of penalty, and in default of immediate payment, to be imprisoned in the prison of Lochmaddy for the period of three days, and subsequently to be imprisoned under said sentence for the said period, to the loss, injury, and damage of the pursuer?—Damages laid at £500.”

“ Opinions.—In the course of the discussion upon the issues it was intimated by the defenders' counsel that the action was not insisted in against the defenders individually, except in the case of Dott, the clerk to the School Board; and 1 am of opinion that the pursuer's allegation (Cond. 8) being that ‘the proceedings complained of were authorised by the Board,’ the action cannot be maintained against the individual defenders personally. It is not alleged that it was ultra vires of the School Board to institute such proceedings.

“With regard to the case of the defender Dott, it was contended that the allegations in Cond. 9, as to his having ‘instigated’ the proceedings, were sufficient, if proved, to make him answerable personally for them. My opinion is that this contention cannot be sustained. In the absence of any suggestion that Dott, as clerk to the Board, wilfully misled the Board, or failed to bring the matter fully before them, I think that there is no relevant case of wrong on his part as an individual. No doubt it is said that he acted maliciously and without probable cause. But it is not said that he exceeded his authority, and there is no sufficient averment that he was actuated by private malice.

“As to the issue against the School Board, it was maintained, on the authority of Rae v. Linton, 2 R. 669, that the pursuer must undertake in the issue to prove malice and want of probable cause. To sustain this contention would be to deny the pursuer all remedy for the wrong complained of, unless he can prove malice on the part of the corporation. My opinion is that the law gives the pursuer a claim for reparation against the School Board if he proves that the imprisonment which he suffered was wrongful and illegal, and was caused by a mistake for which the School Board is responsible. His case on record is that the sentence and imprisonment were caused by the Board wrongfully praying for in the complaint which they authorised to be instituted, and wrongfully taking from the Sheriff, and enforcing, a sentence inflicting a penalty, and, in default of immediate payment, adjudging him to be imprisoned for three days. The mistake of the Board, according to the pursuer's allegations, was that they failed to take the preliminary steps necessary to justify a prosecution for penalties or imprisonment. They have not certified, and it did not appear that they were in a position to certify, in terms of sec. 70 of the Education Act, that the pursuer had been grossly, and without reasonable excuse, failing to discharge the duty of providing elementary education for his children. This may have arisen from inadvertence. If their statements are correct, they would have been entitled to grant such a certificate in respect of the pursuer's failure to appear when summoned before him, as they say he was, to give explanation. But it was essential to justice, in a case involving imprisonment, that the preliminary steps should be taken. They do not appear to have been taken, and if, as alleged, they were not taken, the pursuer is entitled to an opportunity of showing, whether there was malice or not, that his sentence was wrongful, and that the mistake did him an injury, for which he is entitled to reparation.

“I think that the decision in Rae v. Linton is not applicable to such a case; and that the case of Bell v. Black & Morrison, 3 Macph. 1026, and the observations of the Lord Chancellor in the case of Pringle v. Bremner, 5 Macph. (H.L.) 55, support the pursuer's contention that the words ‘wrongfully and illegally’ are sufficient.”

The defenders reclaimed, and argued—It was necessary to put into the issue malice and want of probable cause— Rae v. Linton, March 20, 1875, 2 R. 669. The defenders had made a mistake in bringing the pursuer before the Sheriff to be fined without producing a certificate, and without having obtained a sufficient attendance order. But that was merely a mistake in procedure for which the defenders could not be held liable. They were a statutory body performing a public duty, and the case was therefore one of privilege. There was no relevant averment of malice— Beaton v. Ivory, July 19, 1887, 14 R 1057; Macaulay v. Macdonald, June 3, 1887, 24 S.L.R. 551.

The respondent acquiesced in the Lord Ordinary's judgment in regard to the defenders Dott. As regarded the School Board, he argued—A wrong had been done here to the pursuer, and there must be a remedy. The School Board had begun the proceedings against him under the Act of 1883. Under that Act it was necessary to get an attendance order, and to show that the parent had refused to obey this order, before a conviction could be obtained. This preliminary was necessary to inform the parent that he had failed in his duty, and was for the protection of the public— Macaulay v. Macdonald, June 3, 1887, 24 S.L.R. 551. It was enough to state that the action had been wrongful and illegal. A corporation could not be held to be guilty of malice— Bell v. Black & Morrison, June 28, 1865, 3 Macph. 1026.

At advising—