Scottish Court of Session Decisions

Robert Burns, proprietor of model lodginghouses in Glasgow, raised an action of damages for slander against C. Diamond, editor and proprietor of the Glasgow Observer and Catholic Herald newspaper.

The language complained of was contained in an article published in the defender's newspaper on 2nd November 1895, from which the following are extracts:—“Mr Robert Burns, of the Fourth Ward election fame, is undoubtedly a man to be watched. He has many plausible ways with him, but when he puts on airs as to religion and virtue, he must expect that his conduct will meet with some criticism.… As a refresher might we ask, Is Mr Robert Burns of the Fourth Ward contest the same gentleman who, having been married in an Established Church, once called, as he believed in extremis, for his boon companion, a Catholic, asking the latter to go for the priest, in order that he might be married according to Catholic ritual, before death overtook him? Is Mr Robert Burns the gentleman who while in Campbeltown renounced the Catholic religion and embraced Freemasonry? Is he the gentleman to whom the priest of the day in Campbeltown spoke in terms of the strongest condemnation of his attitude towards the Church after the opening of his Freemason connection? Is Mr Robert Burns the gentleman whose children have been known openly to lament the neglect of their religious training? …”

The pursuer proposed two issues, of which the Lord Ordinary ( Stormonth-Darling) disallowed the second, and allowed the first as amended, appointing it to be the issue for the trial of the cause.

The issue as approved of by the Lord Ordinary was as follows:—“It being admitted that the defender in the issue of 2nd November 1895 of the Glasgow Observer and Catholic Herald newspaper, printed and published the article set out in the schedule appended hereto, and in particular the passage—‘Mr Robert Burns, of Fourth Ward election fame, is undoubtedly a man to be watched. He has many plausible ways with him, but when he puts on airs as to religion and virtue, he must expect

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that his conduct will meet with some criticism and the passage, ‘Is Mr Burns the gentleman whose children have been known openly to lament the neglect of their religious training?’ Whether the said passages are of and concerning the pursuer, and falsely and calumniously represent that the pursuer while making a profession of religion, had so entirely neglected the duty of giving religious training to his children as to receive and merit their condemnation therefor, to the loss, injury, and damage of the pursuer. Damages laid at £1000.”

The pursuer thereupon gave notice of motion to vary the terms of the said issue by substituting for it the following:—“(1) It being admitted that the defender in the issue of 2nd November 1895 of the Glasgow Observer and Catholic Herald newspaper, printed and published the paragraph—‘Is Mr Burns the gentleman whose children have been known openly to lament the neglect of their religious training?’ Whether the said paragraph is of and concerning the pursuer, and falsely and calumniously represents that the pursuer had so entirely neglected the duty of giving religious training to his children as to receive and merit their condemnation therefor, to the loss, injury, and damage of the pursuer. (2) It being admitted that the defender in the issue of 2nd November 1895 of the Glasgow Observer and Catholic Herald newspaper printed and published the following statements, viz.—Mr Robert Burns of Fourth Ward election fame is undoubtedly a man to be watched. He has many plausible ways with him, but when he puts on airs as to religion and virtue he must expect that his conduct will meet with some criticism.’ ‘As a refresher might we ask, Is Mr Robert Burns of the Fourth Ward contest the same gentleman who, having been married in an Established Church, once called, as he believed in extremis, for his boon companion, a Catholic, asking the latter to go for the priest, in order that he might be married according to Catholic ritual before death overtook him?’ ‘Is Mr Robert Burns the gentleman who while in Campbeltown renounced the Catholic religion and embraced Freemasonry?’ ‘Is he the gentleman to whom the priest of the day in Campbeltown spoke in terms of the strongest condemnation of his attitude towards the Church after the opening of his Freemason connection?’ Whether the said statements are of and concerning the pursuer, are false and were made with the design of exposing and did expose the pursuer to public hatred and contempt, to his loss, injury, and damage? Damages laid at £1000.”

The second of the issues thus proposed to be substituted was identical with the pursuer's second issue which had been disallowed by the Lord Ordinary.

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 28, provides that “it shall be lawful to either party … without presenting a reclaiming-note, to move the said Division to vary the terms of any issue that may have been approved of by an interlocutor of the Lord Ordinary, specifying in the notice of motion the variation that is desired : Provided also that nothing herein contained shall be held to prevent the Lord Ordinary or the Court from dismissing the action at any stage upon any ground upon which such action might at present be dismissed according to the existing law and practice.”

The Act of Sederunt, 14th October 1868, sec. 6, enacts that when an interlocutor has been pronounced by a Lord Ordinary approving of issues, “it shall not be necessary nor competent to reclaim against the said interlocutor, if the party aggrieved thereby desires only to obtain a variation of the terms of the issue or issues, and does not desire to have such issue or issues, or one or more of such issues, disallowed in toto; but in every such case, the party shall apply by motion to the Inner House in terms of the 28th section of the said recited Act (the Court of Session Act), specifying precisely in his notice of motion the particular variation or variations which he desires should be made on the said issue or issues.”

Argued for the defender—(1) The motion to vary was incompetent, for what the pursuer sought to do was not to vary the terms of the issue, but to add a new issue. His proper course to attain that end would have been to bring the interlocutor of the Lord Ordinary approving of the issue under review by means of a reclaiming—note. (2) Since, however, the pursuer had raised the question in this way, the defender was entitled under section 28 of the Court of Session Act, to ask the Court to disallow the issue in toto, and it was competent for the Court to do so.

Argued for the pursuer—The motion to vary was the only competent course here, for what was sought was merely to break up the issue into two parts, one dealing with the alleged neglect by the pursuer of his children's religious education, the other with his attitude towards Roman Catholicism. This was just the converse of what the Lord Ordinary had done when he approved of the issue as amended. An issue could not be varied on a reclaimingnote— MacArthur v. Ballantyne, May 13, 1871, 8 S.L.R. 499. As regards the merits of the issues, the first issue was analogous to that allowed in Macfarlane v. Black & Co., July 6, 1887, 7 R. 870, while the second issue was supported by the decision in Paterson v. Welch, May 31, 1893, 20 R. 744. The present case was distinguishable from Waddell v. Roxburgh, June 9, 1894, 21 R. 883, and from M'Laughlan v. Orr, Pollock & Co., November 6, 1894, 22 R. 38.

At advising—