Scottish Court of Session Decisions

James Selbie, messenger-at-arms, Peterhead, sued George Saint, grocer there, for £50 as damages for slander, alleged to have been uttered under these circumstances:—John Penny occupied a shop in Peterhead, belonging to the defender, from Whitsunday 1889 to Whitsunday 1890. Penny left the country in October 1889 without paying his rent, and as the pursuer alleged authorised him to take charge of his business. On 11th October 1889 the defender ejected the pursuer from the shop. Penny, and Selbie as his mandatory, then raised an action of damages (which was ultimately withdrawn) against the defender, whose defences contained, inter alia, the following statement—“The pursuer (Penny) and Selbie commenced to clear the premises with the evident intention of defrauding defender of his right of hypothec for his rent, but he obtained a warrant from the Court and sequestrated in security some effects which pursuer or Selbie did not manage to remove. Selbie was seldom sober during the time he was on the premises.” These statements were the ground of the present action.

The defender alleged that the pursuer was notour bankrupt, and produced in evidence thereof an extract decree for expenses against pursuer and expired charges thereon.

The defender pleaded—“(3) The expressions founded are under the special circumstances not actionable. (4) The pursuer ought to be ordained to find caution for expenses.”

Upon 26th June 1890 the Sheriff-Substitute ( Brown) found the action relevant and ordered proof.

Upon 19th July the Sheriff ( Guthrie Smith) upon appeal ordained the pursuer within eight days to find caution for the past and future expenses, and on the defender's failure so to do, dismissed the action.

The pursuer appealed, and argued—Caution was unnecessary. Mere impecuniosity was not a sufficient ground. The pursuer in an action of damages for slander was in a specially privileged position, as the action was to vindicate his character. It was averred that the pursuer was notour bankrupt, but that was only in the sense of the Debtors Act 1890, and not of the 7th section of the Bankruptcy Act 1856. It had been decided that such bankruptcy did not necessarily imply that a pursuer must find caution as a condition of suing his action— Macrae v. Sutherland, February 9, 1889, 16 R. 476. On the merits—The words complained of by the pursuer were actionable even although they were part of the record in a judicial proceeding. There was no absolute privilege given to a litigant as there was to other parties called into the case necessarily as witnesses, counsel, or judges. It must be shown that the words used were both pertinent and relevant to the issue. The words complained of here were neither relevant nor pertinent; even if relevant and pertinent, there was enough in the averments to show malice and want of probable cause on the part of the pursuer— Gordon v. British and Foreign Metaline Company, November 16, 1886, 14 R. 75; Mackellar v. Duke of Sutherland, June 14, 1859, 21 D. 222, and June 18, 1862, 24 D. 1124; Munster v. Lamb, July 5, 1883, L.R., 11 QBD 588.

The respondent argued—No doubt the matter was in the discretion of the Court, but the pursuer ought to be made to find caution for expenses, as this was only one of a series of actions which the pursuer had brought, and which he had either withdrawn or lost. The statements complained of, whether true or false, were at least pertinent and relevant to the issue. If they were pertinent, then no facts and circumstances had been stated from which the Court might infer malice on the part of the defender, and it was decided that that was necessary when the occasion was privileged, as this was, the statements complained of being part of a record in a proceeding in a court of justice— Williamson v. Umphray, June 11, 1890, 17 R. 905; ‘ Farquhar v. Neish, March 19, 1890, 17 R. 716.

At advising—