Scottish Court of Session Decisions

William Buchan raised an action in the Sheriff Court at Edinburgh against the North British Railway Company for £500.

The pursuer averred—“(Cond. 3) On the 13th August 1892 the Sheriff-Substitute, within the Sheriff Court of Edinburgh, on the evidence solely of the defenders' servants, convicted the pursuer of having contravened the Railway Clauses Consolidation (Scotland) Act 1845, sec. 96, and the Regulation of Railways Act 1889, sec. 5, sub-sec. 3 ( a), by travelling on the North British Railway from Kirkcaldy to Haymarket without having previously paid his fare, and with intent to avoid payment thereof—and fined him 5s. 6d. and costs, with the option of twenty days' imprisonment. Said conviction was bad in point of law, and was not warranted by the evidence; but the pursuer in order to avoid the publicity of an appeal, at once paid the fine and expenses in the belief that the proceedings against him were then at an end. This prosecution was in reality instigated by the manager or agent of the defenders, and he supplied all the evidence upon which the conviction was obtained. The pursuer defended himself, and in the course of the trial proved in open Court the illegal, unwarrantable, and violent conduct of the defenders' servants in assaulting him and rifling his pockets,; and in consequence of this, and of his threat to raise an action against the defenders for said illegal conduct, the defenders' said manager or agent conceived malice and ill-will towards the pursuer, which he gratified in the oppressive proceedings after mentioned. (Cond. 4) Towards the end of February and beginning of March 1893, about six months after said conviction, the defenders' agent

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or manager wrongfully and maliciously set about publishing such conviction against the pursuer, in order to gratify his said feelings of malice and ill-will, and to ruin pursuer's business as a traveller, agent, and collector. To accomplish this the defenders' said manager wrongfully and maliciously printed and published a large bill, a copy of which is herewith produced. Said bill is printed in large letters and in red ink, and inter alia contains the following ‘List of Convictions for Offences against the Companies Acts and Bye-Laws:'—

Name and Address.	Date and Nature of Offence.	Result of Con viction.
William Buchan, Canvasser and Collector, 21 Arthur Street, Pilrig, Edinburgh.	Travelling from Kirkcaldy Station to Haymarket Station without having previously paid the Fare, and with intent to thereof. 31st May 1892	Fined Five Shil—lings and Six-pence, with Thirty-Four Shilling and Six-pence of Costs, or Twenty Days' Imprisonment. Sheriff Court, Edin—burgh, 13th August 1892.

There then follows a list of the names of several offenders against the Company's bye-laws; but the pursuer's name and address were maliciously placed at the top of said bill in order the more readily to arrest the attention of the public. … (Cond. 5) Said bill was posted up in all the principal stations on the defenders' railway system. It was posted up in prominent parts of the stations at Newport, Tayport, Dundee, Polmont, St Andrews, Leuchars, Kirkcaldy, Bridge of Earn, Leven, and various other stations over their whole system. It was not published until about six months after 13th August 1892, the date of the pursuer's conviction, and remained and in some stations remains still posted up, and was and is still read by the public. Pursuer's name and address and the conviction against him were inserted in said bill under the pretence of a caution to the public; but in point of fact this insertion was made maliciously in order to rake up said conviction against the pursuer, and injure him in the eyes of the public by representing that he had defrauded the defenders. The defenders have been repeatedly requested to stop the publication of said bill, but they maliciously decline to do so. (Cond. 6) In consequence of the publication of said bill throughout Scotland the pursuer has suffered great loss, injury, and damage in his business as a traveller, agent, and collector. … He has also suffered in his feelings and reputation in consequence of the persistent and malicious publication of the said conviction. Altogether the loss, injury, and damage sustained by the pursuer cannot be stated at less than £500. The defenders have been requested to make compensation, but they decline to do so, and the present action has become necessary.”

The defenders lodged defences, and pleaded, inter alia—“(1) The pursuer's averments are irrelevant, and the action should be dismissed.”

On 23rd November 1893 the Sheriff-Substitute ( Rutherfurd) pronounced the following interlocutor—“Finds that the pursuer's averments are not relevant or sufficient to support the conclusions of the libel; therefore sustains the defenders' first plea-in-law, dismisses the action, and decerns,” &c.

Against this interlocutor the pursuer appealed to the Court of Session, and argued—The law allowed the publication of what took place in courts of law, for the reason that the proceedings might be made known to the public, who were unable to attend and that thus everyone might see that justice was done. But when the publication was not made for that purpose, but was made, as was averred here, by the pursuer for the purpose of gratifying spite against him, and injuring him in the eyes of the public, the law did not protect the persons publishing the proceedings, even although the report might be true in fact— Stevens v. Sampson, November 15, 1879, L.R., 5 Exch. Div. 53, opinions of Lord Coleridge and Lord Justice Bramwell, 55; Riddell v. Clydesdale Horse Society, May 27, 1885, 12 R. 976. The action should be held relevant and issue allowed, the real question for the jury being whether or not the defenders were actuated by malicious motives in making the publication.

Counsel for the defenders were not called on.

At advising—