Scottish Court of Session Decisions

This action of damages for alleged slander was brought in the Sheriff Court at Ayr, the pursuer being John Shaw, a sheriff-officer at Ayr, the defender being Arthur Morgan, bookseller and stationer, Ayr, a member of the Town Council and Police Commission of the burgh, and also of a committee called the “Arrears of Rates Committee.” On 8th December 1886 this committee met and agreed to employ the pursuer for the recovery by summary warrant of arrears of water rates which had become due and payable on 8th November previous. This appointment was approved of by the Town Council

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on 13th December. On the 15th a summary warrant was obtained from the Sheriff, and the pursuer in virtue of his appointment proceeded to execute the warrant against parties in arrear. At a meeting of the Arrears of Rates Committee shortly thereafter it was arranged that the pursuer should meet every morning with two or more of the member and report his work of the previous day, and this resolution was duly carried out. On 14th February 1887, at the ordinary monthly meeting of the Police Commission, the defender made the following motion in reference to the police and other assessments which became due and payable on 14th February 1887—“In the middle of March, to appoint a collector to call for all unpaid rates, without costs, and that this collector be authorised to receive instalments from those out of employment, and that all rates unpaid at the end of the statutory period be recovered according to law.” In the course of a speech in support of the above motion, in which he said “it was undesirable to have a sheriff-officer if they could get a collector to do their work satisfactorily,” the defender used the following expressions—“What could be more repulsive than to demand rates of a dying woman?” … “Sheriff officers were not always worshippers of the sober deity.” On the Provost of the burgh, who presided, saying—“For myself, I think Shaw” (the pursuer) “is quite a competent man,” the defender replied—“A man who is drunk cannot be competent, and Bailie Shankland knows that. I would rather let loose a wild beast upon the community than a drunk man.” This was the slander complained of.

The pursuer averred that he believed that in consequence of his requiring the defender to pay his arrears of rates he had incurred the malice of the defender, and that the words complained of were not pertinent to the subject-matter then before the Police Commission. He further averred—(Cond. 15) “The defender did not attend these committee meetings as he ought to have done, so as to receive all information and explanations of the pursuer's conduct and proceedings in the discharge of his duties, and complain there and then against the pursuer, who had there the right to or privilege of reply, and which was the proper time and place to challenge the pursuer's conduct, but the defender, on the contrary, took advantage of his public position to comment unfairly, falsely, maliciously, calumniously, and without probable cause, upon the pursuer's conduct at the said meeting of Police Commissioners, without notice to the pursuer, and where the pursuer had no privilege of reply, to the prejudice of the pursuer, and to his loss, injury, and damage to his feelings, character, reputation, and business.” (Cond. 17) “The said false and calumnious statements by the defender against the pursuer … before the Police Commissioners were without probable cause, and if not made maliciously, were made recklessly, culpably, and calumniously, without due inquiry into the whole facts and circumstances connected with the pursuer's proceedings and conduct as collector.”

The defender replied—“The whole statements made by the defender at the said meeting are not libellous—were made by the defender to his fellow Commissioners in bona fides, in the exercise of his public duty; were pertinent to the discussion pending before the meeting; true in fact (at least the defender had probable cause for believing them true); and he was privileged, as a member of the said Police Commission, to make the statements referred to at the said meeting.” He then proceeded to condescend on a number of occasions on which, he alleged, the pursuer had been drunk during business hours while in the execution of his duty as collector of arrears of water rates.

The pursuer pleaded—“(1) The statements complained of are false and calumnious statements, and were made in the presence and hearing of the parties herein named. (2) The said false and calumnious statements being made by the defender in reference to the pursuer, and meant by the defender to apply to the pursuer, as libelled, to the pursuer's loss, injury, and damage to his feelings, character, reputation, and business, the pursuer is entitled to solatium and damages therefor. (3) The defender's statements at the meeting of Police Commissioners, not having been pertinent to the subject-matter before the meeting at the time, were not privileged. (4) The statements complained of were made by the defender maliciously and without probable cause, to the loss, injury, and damage to the feelings, character, reputation, and business of the pursuer, for which the pursuer is entitled to solatium and damages. (5) The said false and calumnious statements and imputations by the defender upon the pursuer, before the Police Commissioners, being made without probable cause, and recklessly, culpably, and calumniously, without due enquiry into the whole facts and circumstances, as above set forth, to the loss, injury, and damage to the pursuer's feelings, character, reputation, and business, the pursuer is entitled to solatium and damages therefor. (8) The defender has not averred a relevant defence of veritas convicii in respect of his statements in council. (9) The defender has not averred a relevant defence to entitle him to raise the plea of privilege in respect of his statements in council.”

The defender pleaded—“(4) The statements having been made by the defender in his capacity of a Police Commissioner of the burgh of Ayr, at and to a regular meeting of the Town Council or Police Commission of Ayr, and having been made by the defender in bona fides, and with probable cause, he is entitled to be assoilzied from the conclusions of the action in respect of such statements. (7) The defender having neither borne nor shown any animus defamandi towards the pursuer, is entitled to be assoilzied from the conclusions of the action. (8) The whole statements made by the defender being true in fact, or warranted by the pursuer's acts and behaviour, the defender is entitled to be assoilzied.”

After certain procedure the Sheriff ( Brand), on 22nd August 1887, allowed a proof, and remitted to the Sheriff-Substitute.

The Sheriff-Substitute ( G. Watson), on 19th January 1888, after proof, pronounced this interlocutor:—“… [ After quoting the language complained of]—Finds that these statements were intended by the defender, and were understood by those to whom they were addressed, to apply to the pursuer, and to signify that he had been drunk while engaged as aforesaid in collecting the arrears of water rates: Finds in law that in making the said accusations against the pursuer the defender

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was not in the circumstances protected by privilege: Finds in fact that the defender has failed to prove that the said accusation was well-founded in fact: Therefore finds in law that the said accusation being false and calumnious, the defender is liable in damages to the pursuer in respect thereof: Assesses the damages at £10; and decerns against the defender for that sum.”

“ Note.—The words complained of being undoubtedly injurious to the character of the pursuer, the defender pleads—(1) that they were privileged by reason of the occasion on which they were uttered, and (2) that they were warranted by truth.

“I. The Plea of Privilege.—Wherever there is a duty to make a statement that is injurious to the character of another, there is also the privilege to do so without malice being inferred. Hence members of a public body, such as the Police Commission of Ayr, being responsible for the good conduct of the officials employed by them, have prima facie a certain privilege in communicating to their fellow-members in the discharge of their public duty what may injuriously affect the character of such an official. This privilege, however, is not absolute, but subject to be displaced by contrary considerations, and in the present case the Sheriff-Substitute is of opinion that there are two grounds on which the defence of privilege must be repelled.”

1. The observations complained of by the pursuer were not pertinent to the business then under consideration of the Police Commission—viz., the defender's motion, the terms of which are set forth in the above interlocutor. It was not necessary for the defender's purpose, in advocating that motion, that any individual reference should be made to the pursuer. The motion related to the collection of the police and other assessments just then falling due, and the defender was quite entitled to commend the more lenient method which he proposed, by pointing out and illustrating the inevitable harshness of the alternative system of poinding by a sheriff officer. But there was no proposal before the Commission that the pursuer or any other individual should be appointed to collect the assessments in question, and the defender therefore was not called upon to animadvert on the conduct of the pursuer. The way to test the right of the defender to speak of an individual is to consider whether it is at all necessary for the performance of the duty, or legitimate in the exercise of the right, properly belonging to the defender on the occasion in question, to make any allusion to any individual at all, per Lord President Inglis in Craig v. Jex Blake, July 7, 1871, 9 Macph. 978. Judging by this test, the Sheriff-Substitute is of opinion that the defender's remarks, so far as reflecting on the character of the pursuer, were not pertinent to the occasion, and were not privileged.

2. Another answer to the defender's plea of privilege is indicated in the note to the Sheriff-Principal's interlocutor of 22nd August 1887. The Sheriff there expresses the opinion that as the pursuer was in the first instance at least responsible to the Arrears Committee of the Town Council, the course adopted by the defender in accusing the pursuer at a meeting of the Police Commission, at which the pursuer had no right to appear and defend himself, is one in which he is not protected by any privilege, and this opinion derives additional force from the circumstances disclosed in evidence. It appears that at a meeting of the Arrears Committee, shortly after the pursuer's appointment as collector, it was arranged by those present that certain members should attend every morning during the collection of the arrears at the Town Chamberlain's Office, that meetings were accordingly held daily, or almost daily, at which the pursuer reported his proceedings on the previous day, and received instructions in special cases; that persons who had complaints against the pursuer, or desired explanations, frequently attended also, and that their cases were investigated by the members of committee present. These meetings being informal, and being held daily, or nearly so, at the same hour, members of committee were not summoned to them by notice; but the defender was aware that such meetings were taking place daily, and Bailie Shankland depones—‘I remember having a conversation with the defender sometime after the pursuer had been appointed, during which the defender informed me of several cases in which severity was said to have been used by the pursuer, and on that occasion I recommended the defender to attend the morning meetings, when he would be able to ascertain as to the truth of these reports.’ The defender was aware that other members of committee had investigated the complaints as well as he, and that their inquiries had led them to a different conclusion from that which he had arrived at, yet he declined to avail himself of the opportunities of investigation which they had used, and which were equally open to him. In these circumstances the Sheriff-Substitute is of opinion that the plea of privilege cannot be sustained—see Odger on Libel and Slander, p. 282.

The result of this finding is to make it unnecessary for the decision of this action to inquire into the averments of special malice made on record against the defender. The Sheriff-Substitute thinks it right, however, to state his opinion, after considering the evidence, that the pursuer has entirely failed to prove the existence of such malice. The Sheriff-Substitute is persuaded that the defender was actuated not by motives of personal ill-will, but by a bona fide sense of duty and a benevolent desire to put an end to what he honestly believed to be a public abuse. It is therefore with great reluctance that the Sheriff-Substitute has come to the conclusion that, for the reasons stated, the observations complained of were not protected by privilege.”

After discussing the evidence as regards the defence of veritas, the Sheriff-Substitute said—“Looking to the whole evidence and keeping in view that the question is not what may probably have been, but what is proved to have been the case, the Sheriff-Substitute is of opinion that the defence of veritas has failed. The pursuer is therefore entitled to damages, and the Sheriff-Substitute is of opinion that £10 is a fair sum to be awarded in the circumstances.”

On appeal the Sheriff ( Brand), on 27th February 1888, adhered under reference to the annexed note and dismissed the defender's appeal.

“ Note.—The Sheriff having fully considered the able argument submitted for the appellant, and perused the whole evidence adduced, is

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of opinion that the words complained of were of and concerning the pursuer, were false and calumnious, were uttered without probable cause, and as uttered, were not privileged. He is further of opinion that the damages awarded are moderate and reasonable. In view of the elaborate note of the Sheriff-Substitute with which the Sheriff generally agrees, he thinks it unnecessary to enter upon any detailed examination of the evidence. The defender undertook the onus of proving the veritas of his allegations of drunkenness, an undertaking which has led to a proof going beyond reasonable limits in point of length, and which proof has broken down. The defender appears to have been disposed to accept without proper inquiry injurious statements made against the pursuer, but when the correctness of these statements came to be narrowly investigated it was found that they had no adequate basis in fact. The examination of this part of the proof by the Sheriff-Substitute was exhaustive, and the Sheriff has nothing to add to it. Had the defender adopted the obvious course of bringing those who complained of the pursuer's conduct and actings before the committee on ‘appeals against rates,’ and placing them face to face with the pursuer, such inquiry must necessarily have been made as to have ascertained how the facts stood, and the present action would probably never have been heard of. The defender says no doubt that he mentioned the matter on more than one occasion both to Bailie Shankland and Councillor Allan, but that his complaints did not receive attention. The former admits that the defender made complaints in committee, and the latter that he spoke of the matter in a coffee house. But this was not enough. The defender should have brought together the parties complaining, and the pursuer complained against, and then and there instituted a formal inquiry before the committee into the charges made. The defender demurs to the constitution of the committee, says it had no locus standi, and asks can he be blamed for not complaining to a self-chosen committee. But can the defender seriously argue, first, that he did complain, but was not listened to, and second, that he did not complain because the committee had no locus standi? Are not these positions mutually destructive? It was argued for the defender that he was entitled to use the words complained of, if he had probable cause, though they were not proved to be true, and in support of this contention reliance was placed on the case of Spill v. Mauls, L.R., 4 Ex. Ch. 232. But this argument is at variance with the defence, which is that he had probable cause, because the words were true, and their truth he set about to establish and failed. Nor does the English case quoted help him.

For the pursuer it was maintained that the Sheriff-Substitute had not sufficiently adverted to the words, ‘What could be more repulsive than to demand rates of a dying woman;’ and it was contended that this was the most serious part of the slander, and should have led to the awarding of larger damages than has been given, but the Sheriff is of opinion that these words do not fall to be read separately from the other words complained of. The probable intention in using them was not to make a charge of mere brutality, but to illustrate how objectionable it was to hand over the collecting of rates to a person addicted to drink. In that view the passages complained of are to be taken as a whole, and as containing one slander.”

The defender appealed, and while admitting that the proof of the veritas of the alleged slander had failed, argued it was proved that complaints had been made to him as to the harsh way in which the pursuer was performing his duty. He was quite entitled to attack the system under which the rates were being levied as an irrational one. Indeed it was a duty to the public imposed on him by his public position to do so. The occasion was, then, a privileged one. In the words of the Lord President in the case of Craig v. Jex Blake, July 7, 1871, 9 Macph. 973—The statements were “necessary for the performance of his duty and legitimate within the exercise of the rights properly belonging to him.” It was a clear case of a statement made pertinent to the issue.

The pursuer replied—1. It was the defender's duty if he desired to attack the pursuer's system of levying the rates to have brought up the matter at a meeting of the Arrears Committee where the pursuer could have met him and defended himself. This was all the more incumbent upon him inasmuch as it was clearly proved that he knew these meetings took place every morning. In the words of Odger on Libel and Slander, p. 282, he had neglected “to avail himself of means at hand of ascertaining the truth,” and this neglect was “evidence of such wilful blindness that privilege would not avail him.” 2. The statements were not privileged for they were not pertinent to the motion which he was making. The question had been directly raised in Craig v. Jex Blake, and it was held that there was no privilege where a person singled out another individually and attacked him as a concrete instance of the evil he was attacking. The case of Rae v. M'Lay, July 8, 1852, 14 D. 988, was even more analogous— vide also M'Kellar v. Duke of Sutherland, January 14, 1859, 21 D. 223. The question before the meeting was simply one as to whether in future a sheriff-officer should be appointed a collector or not. It was no warrant for an attack on an individual.

At advising—