Scottish Court of Session Decisions

This was an action of damages for alleged slander brought by Gilbert Archer, 2 Wellington Place, Leith, against John Ritchie & Company, proprietors of the Evening Dispatch, Edinburgh.

The pursuer averred—“(Cond. 2) On 2nd September 1890 the defenders caused to be printed and published in the Evening Dispatch newspaper of that date the following paragraph:—‘ Mr Archer's Crooked Ways.—The usual weekly meeting of Sir Walter Scott Lodge, I.O.G.T., was held last night in Marshall Street Hall—the C. T. (Mr James R. Clark) was in the chair. Brother James Hamilton, Grand Councillor of the Order, was one of the visitors, and he was requested to occupy a seat on the platform beside the Chief Templar. After the initiation of candidates, Brother Hamilton was asked to address the meeting. In the course of his remarks he referred to the business which had been before the Grand Lodge at Aberdeen. He stood before them that night as the defeated candidate for the Grand Chief-ship, but he felt bound to explain how he happened to be a candidate for the office at all. Had he known that Brother Archer was anxious for the post again, he certainly would not have allowed his name to be proposed. The idea of being a candidate for the office had never entered his head until some time before the meeting of the Grand Lodge Brother Archer came to him and urged him to become a candidate, as he said he had no intention of standing again for the post of Grand Chief. That was the origin and history of his candidature, and while he was not in the least astonished at Brother Archer's name being proposed again for the G. C. T., they could fancy his feelings when he saw that Brother Archer was actually a candidate, and seemed to have no intention of withdrawing, for that was the first and only intimation he ever received that Brother Archer had changed his mind, and was ambitious to again fill the chair. He felt he was justified in making these explanations, as his conduct in opposing Brother Archer was apt to be misunderstood and misrepresented by the brethren throughout the country. Brother Hamilton concluded by earnestly urging the members to work more energetically than ever. It was in the subordinate lodges, and not in the district and Grand Lodges, that the work must be done, if it is done at all. Brother Hamilton received a cordial vote of thanks for his address.’ The meeting referred to in said paragraph was, as the defenders well knew, a private meeting of the Good Templar Lodge referred to, and as the defenders also well knew it is and was contrary to the rules of the said Order and the said Lodge to publish reports of the proceedings at the meetings. There were no reporters at the meeting, and the defenders obtained the information as to what passed at said meeting improperly and surreptitiously.” “(Cond. 3) In the same issue of the said Evening Dispatch newspaper the defenders also printed and published an editorial note or leaderette to the following effect:—‘The mystery connected with the Chief Templarship becomes deeper than ever by the explanations given by Mr Hamilton in an Edinburgh Lodge last night. No one stands higher—few indeed so high—in the estimation of the Order, and any statement made by him regarding his candidature for the G. C. T.-ship may therefore be readily accepted. That candidature was none of his seeking. Mr Archer about three months ago intimated that he did not intend to offer himself for re-election, and he suggested that Mr Hamilton should stand. Mr Archer's resolution was referred to publicly in several lodges and elsewhere, and no whisper was heard of any change in his intention until his name was proposed again at the Grand Lodge Session, and the surprise of Mr Hamilton may be understood when he found that Mr Archer did not withdraw his name. The contest was thus forced upon Mr Hamilton under circumstances which he never contemplated, rendering his position very unpleasant. It is to be hoped that this sharp practice, which is of a piece with other proceedings of the official clique at the head of the Order,

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will not be lost upon the members.’ … The defenders also on the same day printed and published and exposed publicly in the streets and other public places in Edinburgh, Leith, and other towns, a bill of contents, being a large placard, in which were prominently printed in large type the words, ‘Mr Archer and his Crooked Ways.’” “(Cond. 4) The statements contained in the foresaid paragraphs, note, and placard are of and concerning the pursuer, and are false and calumnious, and were printed and published by the defenders maliciously, and without probable cause. The pursuer never went to Mr Hamilton or urged him to become, or suggested that he should become, a candidate for the office of Grand Chief Templar, or said to Mr Hamilton that the pursuer did not intend to stand again for the office. By the statements above quoted the defenders intended to represent, and did represent, that the pursuer had been guilty of deceitful and dishonourable conduct, and that he habitually indulged in conduct that was unfair and deceitful and dishonourable, and that he was unworthy of the confidence and respect of the members of the said Order. The said statements further represented that the pursuer had wilfully misled the said James Hamilton by statements which he, the pursuer, knew to be false, and that the pursuer had been guilty of unfair and treacherous conduct towards Mr Hamilton, and that the pursuer was a man who was frequently guilty of wilfully misleading others by statements known by him to be false, and of unfair and treacherous conduct in his dealings with others, and that he was a man who was unworthy of trust or confidence.”

The defenders admitted the publication of the report of the meeting and leaderette quoted in Conds. 2 and 3, but denied that they were slanderous, or could bear the innuendo attempted to be put upon them. They also averred that the statements made therein were substantially true; that the publication of the report was justifiable, and the statements therein privileged, as being the fair and reasonable discussion and criticism of matters of public concern, and that the leaderette, so far as it was not a mere resume of actual facts in connection with the election to the Grand Chief Templarship, was a fair and reasonable criticism of the public action of the pursuer in his relations with a public body.

The defenders pleaded, inter alia:—“(1) The pursuer's statements are irrelevant, and the action should be dismissed. (2) The paragraphs, leaderette, and placard complained of, not being libellous, decree of absolvitor should be pronounced.”

On 13th January 1891 the Lord Ordinary ( Wellwood) approved of the following issue for the pursuer—“It being admitted that the defenders are the printers, proprietors, and publishers of the Evening Dispatch newspaper, published in Edinburgh. It being also admitted that in the number of the said newspaper which bears date and was printed and published in Edinburgh upon the second day of September 1890 there was printed the paragraph set forth in the Schedule A hereto annexed, as also the editorial note or leaderette set forth in the Schedule B hereto annexed. Whether the defenders on 2nd September 1890 printed and published and publicly exposed a bill of contents of said newspaper, or large placard, bearing the words ‘Mr Archer and his Crooked Ways?’ And whether the said paragraph, note, and placard, or any of them, are of and concerning the pursuer, and falsely and calumniously represent that the pursuer's conduct had been dishonourable, to the pursuer's loss, injury, and damage? Damages laid at £500.”

The following counter issue for the defender was disallowed by the Lord Ordinary—“Whether, prior to the election of a Grand Chief Templar in August 1890, the pursuer represented to members of the Independent Order of Good Templars that he did not intend again to be a candidate for the office of Grand Chief Templar; and whether by said representations being repeated to him, James Hamilton, a member of said Order, was induced to believe that the pursuer would not be a candidate for said office, and was, with the knowledge and acquiescence of the pursuer, induced to become a candidate for said office himself; and whether the pursuer, notwithstanding said representations, and without any notice to the said James Hamilton, did become a candidate for the said office, and was elected to said office, and thereby defeated the candidature of the said James Hamilton?”

“ Opinion.—The defenders maintain that the pursuer's averments are wholly irrelevant, and that no issue should be allowed. The question is a narrow one, and the slander complained of, if it was a slander, was perhaps not very serious. But on considering the whole of the pursuer's averments I think that the case must go to a jury.

The publications of which the pursuer complains were all inserted in or published in connection with an issue of the Evening Dispatch of 2nd September 1890. The pursuer complains—firstly, that the defenders published what bore to be a report of a weekly meeting of the Sir Walter Scott Lodge of the Independent Order of Good Templars in Scotland, of which the pursuer was then and is now Grand Worthy Chief Templar. In that report it is stated that ‘Brother Hamilton,’ who had been a candidate for the Grand Chiefship, stated that ‘Brother Archer,' the pursuer, came to him and urged him to become a candidate as he had no intention of standing again for the post, and that subsequently, without giving him, Brother Hamilton, any notice of his change of mind, the pursuer presented himself as a candidate and was re-elected. In regard to the publication of this report the pursuer makes two complaints—First, that the statement attributed to Brother Hamilton is false in respect that he, the pursuer, never went to Brother Hamilton or urged him to become a candidate on the representation that he was not going to

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stand again; and, secondly that the meeting was a private meeting, the proceedings of which should have been kept secret by the members of the lodge.

The pursuer next complains that whether the publication of that report by itself would have been a good ground of action or not, the defenders have given it a calumnious meaning, and lost any privilege they might otherwise have had by inserting the heading ‘Mr Archer's Crooked Ways.’

The pursuer further complains that the defenders printed and published and publicly exposed in the streets and elsewhere a placard on which were printed in large type the words ‘Mr Archer and his Crooked Ways;’ and that in a leaderette in the same issue of the paper the defenders repeated the statement attributed to ‘Brother Hamilton’ in the report, and added—‘It is to be hoped that this sharp practice, which is of a piece with the other proceedings of the official clique at the head of the Order, will not be lost upon the members.’

The pursuer avers that by those publications the defenders falsely and calumniously represented him to have acted in a treacherous and dishonourable manner by intentionally inducing Brother Hamilton to become a candidate and sustain defeat by an untrue and deceitful representation that he, the pursuer, did not intend to seek re-election; and further, that the defenders hinted, by the heading and the passage in the leaderette which I have quoted, that this act of deceit and treachery was not a solitary one on the part of the pursuer, but of a piece with his previous conduct and that of the other officials at the head of the Order.

The defenders, on the other hand, maintain that their words will not bear that meaning, and that, at the worst, they can only be read as meaning that the pursuer's conduct was shabby and not straightforward. I express no opinion as to which construction should be put upon the publications; that, I think, is a matter for a jury to decide in the knowledge of all the facts. All that I decide at present is, that the publications admit of the construction put upon them by the pursuer. In allowing an issue I am, to a certain extent, influenced by the consideration that the reported statement of Brother Hamilton, on which the defenders' comments bear to proceed, is not admitted by the pursuer to be true. Indeed, the defenders admit in their fourth answer, as I read it, either that Brother Hamilton was wrongly reported, or at least that the statement he then made was not in accordance with the facts. Something also depends on the question whether the meeting of the lodge was public or private.

The pursuer's proposed issue which I have allowed is framed on the footing of putting in issue the whole of the publications made by the defenders and reading them together as a whole. I am not prepared to say that that is an unfair way of putting the case before the jury. Indeed, it is more favourable to the defenders than if the pursuer were to separate the paragraphs, for instance, by taking a separate issue in regard to the printing and publishing of the placard.

I have disallowed the counter issue proposed for the defenders, because it does not amount to a justification of the alleged slander. At the same time, I think that without a counter issue the defenders at the trial will be entitled to prove the circumstances in which the alleged libel was published. I do not think that such evidence will be excluded. In Paul v. Jackson, 11 R. 460, the Lord President, while stating that a defender is not entitled to prove the truth of the statements without a counter issue, or any part of them, in order to mitigate damages, or for any other purpose whatever, adds—‘It is equally well settled, however, that a defender charged with slander is entitled to lay before the jury the circumstances in which the slander was uttered, in order to prove the state of his information with regard to the subject-matter, and to show that the offence and consequent injury to the pursuer is not so great as is represented, and so to diminish the amount of damages.’

It will also be open to the defenders at the trial, without a counter issue, to prove, if they can, that the report was one which they were entitled to publish, and that it was an accurate report, and to maintain to the jury that their comments were fair and reasonable criticism on a matter of public interest and the actions of a public man, and therefore not calumnious— Wright & Greig v. Outram & Company, 16 R. 1004.

The concluding paragraph of the pursuer's issue seems to be justified by the terms of the issue adjusted by the Inner House in the case of Macrae v. Sutherland, 16 R. 476.”

The defenders reclaimed, and argued—There was no such denial by the pursuer of the truth of the facts stated in the report and leaderette as was necessary to entitle him to an issue— Gray v. Society for Prevention of Cruelty to Animals, July 18, 1890, 17 R. 1185; Campbell v. Ferguson, January 28, 1882, 9 R. 467. The documents were not in themselves libellous, and the innuendo was unreasonable and forced— Fraser v. Morris, February 24, 1888, 15 R. 454. The report being accurate was privileged, and so was the criticism in the leaderette, as it did not exceed the bounds of fair and reasonable criticism. If the case was sent to trial, separate issues should be adjusted referring to the separate documents complained of. Further, the defenders should be allowed a counter issue, for otherwise they would not be entitled to prove their counter averments— Paul v. Jackson, January 23, 1884, 11 R. 460; Torrance v. Weddel, December 12, 1868, 7 Macph. 243. The defenders were only bound under their counter issue to prove the substantial truth of the statements made by them.

Argued for the pursuer—The documents complained of were slanderous and would bear the innuendo put upon them. The epithet “crooked ways” was calumnious,

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and was very suggestive of what was the intended meaning of the publications— Cunningham v. Duncan & Jamieson, February 2, 1889, 16 R. 383; Dun v. Bain, January 24, 1877, 4 R. 317. It was not desirable to dissociate in the issues the publications complained of. The facts pointed at in the counter issue might be proved without the counter issue. The counter issue did not meet the pursuer's case.

At advising—