Scottish Court of Session Decisions

Messrs Crabbe & Robertson, cabinetmakers, Dundee, brought an action of damages for slander against Stubbs, Limited, Edinburgh.

They averred — “The defenders are the publishers of a paper known as Stubbs’ Weekly Gazette. The defenders carry on for profit a business which they describe in their advertisements and prospectuses as a means of enabling traders to avoid making bad debts, and they act as an agency for the recovery of overdue accounts, bills, rents, &c. The foresaid paper has a wide circulation throughout Scotland, which is not confined to the trading community. It has a special portion devoted to the publication of traders and others by and against whom decrees in absence have been taken. This is popularly called and known as the ‘Black List,’ and the name of any trader appearing in that list is looked on with grave suspicion as to solvency by all persons reading the said Gazette or knowing of its contents. Its object is to give information to tradesmen and the mercantile community generally as to bankrupts, insolvents, and defaulters in payment of their just debts and obligations.”

They further averred that on 4th January 1895 a summons was raised against them in the Sheriff Court at Dundee by another firm of cabinetmakers for the sum of £2, 10s., and that a proof had been fixed for 19thFebruary, but that on that date they consented to decree being pronounced against them, as they had become satisfied, after inquiry, of the accuracy of the claim. They had been throughout represented by an agent. They complained that the defenders in their issue of Stubbs' Weekly Gazette for Thursday 21st February 1895 had published a “Black List” of those against whom decree in absence had been pronounced on the 19th, which contained the names of the pursuers. The statement thus made and published about the pursuers was false, and by it the defenders falsely represented that the pursuers were unable to pay their debts, and were in insolvent circumstances or pecuniary embarrassment, and wishing to evade payment of a just debt. In consequence of the defenders' fault in thus publishing said decree against the pursuers, the latter have suffered great damage to their credit and business. Their firm has been talked about as insolvent amongst those trading with and interested in them.

The defenders explained—“There is prefixed to the said extracts in said Gazette a note stating that 'publication of the decrees does not imply inability to pay on the part of the persons named. The sums decerned for may have been fully or partially paid or otherwise satisfied or arranged.” They admitted that the decree pronounced had been in foro, but averred that their action “in treating the decree obtained against the pursuers as a decree in absence was warranted by and was in conformity with the terms of the entry contained in the official record of the decrees pronounced in the Sheriff Small Debt Court at Dundee, and the defenders are absolutely privileged in publishing information in accordance with the terms of said entry. It is believed that through some error or omission on the part of the Sheriff Court officials, for which the defenders are not responsible, the said entry was inaccurate, to the extent that the decree should have been represented as one which passed, not in absence, but of consent.”

The defenders pleaded, inter alia—“(1) No relevant case. (3) Veritas; or otherwise the statement complained of being warranted by and in conformity with the information furnished in an entry contained in an official record open to the general public, the defenders are not responsible for any inaccuracy therein.”

Upon 12th June 1895 the Lord Ordinary ( Kincairney) approved of the following issue for the trial of the cause—" Whether, on or about 21st July 1895, the defenders wrongfully published in a publication known as Stubbs' Weekly Gazette a false statement, to the effect that a decree in absence had been obtained against the pursuers for the sum of £2, 10s., with 8s. of expenses? And whether the defenders thereby falsely and calumniously represented that the pursuers were unable to pay their debts, to their loss, injury, and damage? Damages, £500.”

Opinion.—This is an action of damages brought in respect of the insertion of the pursuers’ names in a list published in Stubbs’ Weekly Gazette, bearing to be a list ‘of extracts from the registers of decrees in absence in the Small Debt Courts.’ It is said to be popularly known as the ‘Black List,’ and I suppose there is little doubt that the insertion of the name of any tradesman in that list may be extremely detrimental to his mercantile credit. The formidable character of this ‘Black List’ may in part arise from mere popular impression, but undoubtedly the fact that a decree in absence has passed against a tradesman for a small sum suggests (1) that the debt was a just debt, otherwise the decree would have been opposed; and (2) that the defender had refused to pay, or was unable to pay,

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this just debt, otherwise there would be no occasion for a decree.

The defenders have pleaded that there is no relevant case, and they have also pleaded privilege, a plea in support of which no argument was offered, and there are other pleas to the merits. As I think the pursuers are entitled to have the case sent to a jury, it is better that I should say no more than is necessary about the arguments and pleas of the parties.

The defenders have maintained that they are not liable, because what they published was warranted by an official record open to the general public. The pursuers maintained that under sec. 17 of the Small Debt Act, providing for a register or record of small-debt decrees in the form directed, that record was not open to the general public. I am of opinion, however, that the book, which is directed by that section to be kept, is open to public inspection. As I read the section, it is there declared to be so, for I hold that the word ‘registers’ includes the book of small-debt decrees, and certainly nothing is said to the contrary; and the book of small-debt decrees has always been treated as open and accessible to the public. Whether this be so or not, I think that no action could lie against the defenders if all they did was to publish a decree pronounced in the open Court. That sufficiently appears from the opinions in the cases of Andrew v. Drummond & Graham, March 6, 1887, 14 R. 568; and Taylor v. Rutherfurd, March 17, 1888, 15 R. 608. The case of Buchan v. The North British Railway Company, June 16, 1894, 21 R. 379, in which a railway company was held not to be liable in damages for posting bills stating that the pursuer had been convicted of travelling without payment of his fare, rests on the same principles. The defenders quoted also the case of Searles v. Scarlett, September 1892, L.R., 2 Q.B. 56, which carries the immunity of persons publishing such a work as Stubbs’ Gazette very far, and appears to put them in a position of privilege, a point which may perhaps arise before a jury, and about which I reserve my opinion.

The defenders further maintain that they cannot be liable if what they published is a fair excerpt from the public record, even although the entry in the records was erroneous, and in support of that proposition they quoted the case of Annaly v. The Trade Auxiliary Society, 1890, L.R.I., 26 Q.B. and Ex. 394, which seems to bear it out. I do not find it necessary to decide whether that is so or no. The judgment in the more recent case of Reiss v. Perry, April 27, 1895, 11 Times Law Rep. 373, seems to throw some doubt on the cases of Annaly and Searles.

But in this case it is averred that the publication in Stubbs' Gazette was not warranted by the entry in the Small Debt Book, and excerpts from that book have been referred to. It appears that the entry in the Small Debt Book discloses a judgment against the pursuers, but does not disclose whether the judgment was a decree in absence or in foro. The pursuers aver that it was a decree in foro, and that previous entries in the book would, had they been examined, have disclosed that fact.

Now, no doubt, Stubbs' Gazette may serve a most useful purpose, but it is merely a commercial enterprise and venture by the publishers for their own profit, and it is clear that its publication necessitates the utmost caution on their part, and if they make an entry which goes beyond what the public register warrants, and if the reputation of anyone is thereby injured, I am not prepared to say that they may not be answerable for that injury.

That is what, according to the pursuers' averments, has happened, and they have therefore, I think, stated a case which they are entitled to lay before a jury.

In the case of Rarity v. Stubbs, July 17, 1893, 1 Scots Law Times 74, a similar question was raised before Lord Moncreiff, and his Lordship, on a proof, held that the defenders were liable in respect of an erroneous excerpt from a public register.

The defenders found on a note in their Gazette to the effect that ‘publication of the decrees does not apply inability to pay on the part of the persons named; the sums decerned for may have been fully or partially paid or otherwise satisfied or arranged.’ It will be for the jury to say to what extent it aids the defence.”

The defenders reclaimed, and also moved the Court to vary the issue by substituting for the words “a false statement to the effect that a decree in absence had been obtained against the pursuers for the sum of £2, 10s., with 8s. of expenses,” the words “a statement or paragraph in the terms set forth in the schedule appended hereto: Whether the said statement or paragraph is in whole or in part of and concerning the pursuers;” and by appending to said issue, varied as aforesaid, a schedule in the following terms:—

Extracts from the Registers of Decrees in Absence in the Small Debt Courts.

The following extracts are taken from the official books since our last issue, and publication of the decrees does not imply inability to pay on the part of the persons named. The sums decerned for may have been fully or partially paid, or otherwise satisfied or arranged.

In publishing these decrees it is intended to confine the extracts from the records to decrees in absence for £2 and upwards. It may, however, sometimes happen that where the sum sued for exceeds £2, decree is taken for a less sum, in which case the fact of such decree having been pronounced may appear.

Should any inaccuracy be discovered, tending to prejudice anyone, or a decree he inadvertently taken, we are willing to insert a note, without any charge, on authentic information or explanation being supplied to us.

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Forfar.

Date.	Amount.	Defenders.	Pursuers.
1895. Feb. 19.	£2 10 0	Crabbe & Robertson, Cabinet makers and Upholsterers, Tally St., Dundee.	Alexander Imlay & Son, Cabinet Manufacturers, Dundee.”

The defenders further argued—There was no issuable matter. A decree had undoubtedly been pronounced against the pursuers, and the defenders were entitled to make known what took place in open court, and to publish extracts from the books of court. The publication of such extracts was privileged— Searles v. Scarlett, L.R., 1892, 2 Q.B. 56. A mistake had been made in calling the decree one in absence, but the same inferences could be drawn from the fact of a decree in foro for such a small sum having been pronounced. They were careful to say that publication of such decrees did not imply inability to pay.

Argued for the pursuers—The defenders were entitled to publish what took place in Court, but only if they gave a true report. Very serious inferences as to solvency and commercial standing might be drawn from a man allowing a decree to go out against him in his absence which could not be drawn if the decree were in foro. The case was relevant— cp. Andrews v. Drummond & Graham, March 5, 1887, 14 R. 568.

At advising (the terms of the issue, in the event of any being allowed, having been adjusted at the bar)—