Scottish Court of Session Decisions

William Horn Henderson, solicitor, Linlithgow, raised an action for £500, as damages for slander, against James Russell, solicitor there.

The pursuer in his condescendence made the following averments:—In 1887 and 1888, while the defender was his managing clerk, negotiations took place between him, as agent for Mr Seton of Preston, and the Police Commissioners of Linlithgow, as to the purchase by the latter from Mr Seton of a water supply, including a site for a reservoir. The negotiations resulted in an agreement by which Mr Seton granted to the commissioners a water supply and a site for a reservoir for a yearly payment of £75. The pursuer further averred that he had drafted and engrossed the agreement, and by the mistake of a clerk a clause was omitted from the draft of the agreement finally submitted to the commissioners, and from the engrossed agreement. After the agreement had been engrossed, but before it was sent to the commissioners for signature, the omission of the clause was noticed by him, and he then instructed his clerk to add it to the deed. The clause was engrossed by writing it in at the end of one of the clauses of the agreement, and the agreement with the clause so inserted was signed by the commissioners on 17th and 20th May 1889. The clause alleged to have been omitted was as follows:—“And they,” the commissioners, “shall be bound to relieve the first party and his foresaids of all expenses which they may incur in connection therewith, and with the preparation of this and the said other minute of agreement, and of the lease to follow thereon, in the same manner as if they had obtained their rights under the Provisional Order for which they have made application.”

The defender was dismissed by the pursuer on 31st March 1890.

The pursuer further averred—“(Cond. 10) In consequence of his dismissal, the defender conceived malice against the pursuer, and actuated by said malice, on a day between 15th May and 23rd July 1890 (the particular day and month being unknown to the pursuer), the defender, in his own office at Linlithgow, stated to the said John Thom (the clerk to the commissioners) that the clause in the agreement binding the commissioners to relieve Mr Seton of expenses had been added to the agreement after it had been executed by the commissioners, or made a similar statement to the same effect. Having subsequently been elected one of the Police Commissioners of the burgh of Linlithgow he resolved to take advantage of his official position to injure the pursuer. In pursuance of this design, at a meeting of the Commissioners of Police, held on the 10th day of December 1893, within the Council Chambers, Linlithgow, the defender again stated in the presence and hearing of Provost Gilmour and Bailie M'Alpine, both of Linlithgow, and others of the Police Commissioners, and of their clerk the said John Thom, or one or more of them, that the clause in the agreement binding the commissioners to relieve Mr Seton of expenses had been added to the agreement after it had been executed by the commissioners, or made a similar statement to the same effect. The defender meant by said statement and by his previous statement to Mr Thom that the clause quoted in condescendence 4, or a portion thereof (that quoted above), had been fraudulently interpolated in the agreement by the pursuer, or by his instructions, after the agreement had been signed by the commissioners.”

The defender lodged defences and made the following statements in answer to the above article—“(Ans. 10) Admitted that the defender, after leaving the pursuer's employment, was elected one of the Police Commissioners. Denied that he conceived any malice against the pursuer, or resolved to take advantage of his official position to injure the pursuer. Admitted that the defender, at the request of the clerk to the

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commissioners (who stated to defender that he was taking evidence with the view of the commissioners reducing the said agreement if necessary), gave a statement on precognition to the said clerk of what he knew as to the agreement, and then stated to him that the expenses clause referred to, from and after the words ‘in connection therewith,’ had been added or caused to be added by the pursuer to the water agreement after its execution by the commissioners.… Explained that about the time when the said clause was added to the agreement, the pursuer informed the defender that it had been included in the agreement with the authority of the clerk to the commissioners, and the defender believed his to be the case when he made the said statement in precognition to Mr Thom. Further, the statements made in said precognitions are privileged and are true, Admitted that at a meeting of the Police Commissioners the defender stated in the presence of the parties mentioned that the clause as to expenses in the said water agreement, from and after the words ‘in connection therewith,’ had been added to the agreement after it had been executed by the commissioners, but that the pursuer had stated to the defender that this was done with the consent of the clerk to the commissioners.… The said statement was made by the defender in discharge of his duty as a commissioner and was privileged.… Quoad ultra denied, and explained that the statements made by the defender were not intended to bear, and do not bear, the innuendo here sought to be put upon them by the pursuer.”

The defender pleaded, inter alia, privilege and veritas.

The issue submitted by the pursuer for the trial of the case in regard to the alleged statement to Mr Thom was as follows:—‘Whether, on a day between 15th May and 23rd July 1890, the defender, in his office in Linlithgow, in the presence and hearing of John Thom, solicitor, Linlithgow, falsely and calumniously stated of and concerning the pursuer that the clause in an agreement between the Police Commissioners of Linlithgow and Mr Seton of Preston, binding the commissioners to relieve Mr Seton of expenses, had been added to the said agreement after its execution by the said commissioners, or made a similar false and calumnious statement of and concerning the pursuer, meaning thereby that the clause quoted in the schedule hereto, or a portion thereof, had been fraudulently interpolated in the said agreement by the pursuer, or by his instructions, after its execution by the said commissioners, to the loss, injury, and damage of the pursuer? Damages laid at £250.’

A similar issue was submitted for the trial of the case as regards the statement to the Police Commissioners.

The defender submitted a counter issue whether the pursuer did add or cause to be added the clause in question to the agreement after it had been signed by the Police Commissioners.

The defender's issue was objected to by the pursuer on the ground that it was not a true issue of veritas, since it did not cover the innuendo in the pursuer's issues. For this reason the defender's issue was disallowed by the judge (Lord Stormonth Darling), and the issues submitted by the pursuer were settled to be the issues for trying the case.

The case was tried before the Lord Justice-Clerk and a jury. At the trial counsel for the defender put to several witnesses the following question:—“Was the clause as to expenses added to the agreement after it had been signed by the commissioners?” and other questions to the same effect. Counsel for the pursuer objected to these questions in respect of there being no counter issue of veritas, and the Lord Justice-Clerk sustained the objections, whereupon counsel for the defender excepted to the ruling.

The defender's evidence was to the same effect as this statement in Ans. 10 above quoted.

Mr Thom stated that he called on the defender and asked him whether the clause dealing with expenses was in the deed before signature by the commissioners, with the view of putting himself in possession of the facts so that he might advise the commissioners whether or not they should reduce the deed. The defender and Mr Thom both repudiated the meaning placed on the defender's statement by the pursuer's innuendo. There was no other evidence to support the innuendo. As stated in the opinions of the Judges, the evidence led did not prove the pursuer's averments of malice.

The jury found for the pursuer upon the first issue, and assessed the damages at one farthing. They found for the defender on the second issue, on the ground that there was no malice proved on his part.

The defender presented a bill of exceptions, and also moved for a new trial, on the ground that the verdict upon the first issue was contrary to evidence.

Argued ( First) In support of the hill of exceptions.—The pursuers objections to the proposed questions, which had been sustained, were founded on the rule that the defender could not prove veritas without an issue to that effect. But in this action the defender had proposed an issue whether or not the clause had been added after signature, and this had been objected to by the pursuer and disallowed by the Court because it did not cover the alleged slander— Bertram v. Pace, March 7, 1885, 12 R. 798. The evidence which the defender had desired to lead at the trial, and which had been objected to and disallowed by the Judge, was the substance of the proposed counter-issue. It thus appeared that if the pursuer's objection was upheld, a defender could never prove that the statement made by him was true unless he tabled an issue admitting that the slanderous construction which the pursuer put upon his words was a true one. ( Second) On the motion for a new trial—The evidence of the defender and Mr Thom completely disposed of the pursuer's

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innuendo. Apart from it there was no slander, and therefore the pursuer's case failed by his failure to prove that the defender intended to convey the meaning attributed to his statement by the pursuer. Further, the occasion was privileged. Mr Thom's evidence showed that he had visited the defender in his official capacity for the purpose of taking a precognition or making inquiries in the public interest. In such circumstances the defender's answer to the town clerk was privileged. If the occasion was privileged the defender was only answerable if the pursuer proved that malice existed and that the statement was untrue— Shaw v. Morgan, July 11, 1868, 15 R. 865, Lord Young's opinion, p. 870, This had not been done here.

Argued for pursuer—The occasion was not privileged. The verdict of the jury showed that they thought that Mr Thom, when he called on the defender, had not been acting in his official capacity for the public good, but had been indulging in idle gossip. He certainly was not taking a precognition. Even if it were assumed that the case was one of privilege, although the defender would be presumed to have acted in good faith, the onus still lay upon him to prove that the statement was true. But if the defender was going to lead evidence as to the truth of a charge, he must give notice not only by a plea on record but also by tabling a counter issue veritas convicii—Torrance v. Waddel, December 12, 1868, 7 Macph. 243; Craig v. Jex Blake, July 7, 1871, 9 Macph. 973; Paul v. Jackson, January 23, 1884, 11 R. 460, Lord Fraser's opinion, p. 468. There being no counter issue of veritas, the defender was precluded from proving that his statement was true, and the jury were bound to pronounce a verdict on the assumption that the statement was false.

At advising—