Scottish Court of Session Decisions

This was an action in which the pursuer concluded for payment of the sum of £1000 as damages for slander in the following circumstances.

In 1897 the pursuer's sister had raised an action of declarator of marriage, or alternatively for damages for breach of promise of marriage and seduction. The present defenders were the defender's law-agents.

On 5th March 1897, some months before the summons in that action was signeted, in the course of correspondence with regard to that case, they wrote a letter to the law-agent acting for the present pursuer's sister, which, in so far as of importance for the purposes of this report, was in the following terms—… “You were formerly quite convinced that your client was what we represented her to be, and you so expressed yourself, not only to the writer, but to several of the parties whom you met in this office. Nothing has occurred to justify any change in that conviction, and a perusal of the register of births, &c., would satisfy you that our client's defence is both legally and morally complete, even apart from the conclusive evidence already submitted to you. In justification of this, and in illustration of the liberty which your client and her friends think proper to take with the Registration Acts, we refer you “—[ then followed references to certain entries in the Registers of Births and Deaths]. “This last entry shows that the writer had been misinformed as to the particular child with which your client was to be credited, but this is not surprising in view of the fecundity of the maidens of this family and of their matrimonial and other relationships as disclosed by the above and sundry other entries in the registers.” …

In the present action the pursuer averred that on 5th March 1897 there were living five daughters of the marriage between her father and mother, three of whom were married, and two of whom were unmarried, viz., the pursuer in the former action, and the pursuer in the present action. With regard to the letter complained of, she averred as follows—“(Cond. 4) The said letter contains statements which are of and concerning the pursuer, and are false, calumnious, malicious, and are made without just occasion. Among other statements of and concerning the pursuer in said letter she following are of and concerning her, viz.”—[ then followed the paragraph in the letter complained of beginning “This last entry,” and ending “other entries in the registers,” which is set forth supra]. “These statements were made by the defenders falsely, calumniously, and maliciously, and without probable cause. The said statements were not only untrue, but were made without any just occasion. They imply and represent, and were intended by the defenders to imply and represent, that the pursuer was unchaste, and was a woman of loose and immoral character. The explanations in answer are denied.” She also averred (Cond. 6) that the defenders had not withdrawn and retracted the statements complained of, and that they refused or delayed to do so, although this had been repeatedly required of them.

With reference to the averments in article 4 of the pursuer's condescendence the defenders averred—“(Ans. 4) Denied. None of the statements in said letter are of or concerning the pursuer. When the said letter was written the defenders had never heard of the pursuer and were in ignorance of her existence.” They explained that in the course of their inquiries in reference to the action at the instance of the pursuer's sister they had discovered certain facts regarding members of the pursuer's family other than the present pursuer, and that the statements contained in the letter had reference to these facts, and did not concern the pursuer in the present action.

The defenders had previous to the raising of the action written to the pursuer's law-agents disclaiming all intention of making any charge against the pursuer, and explaining that at the time the letter was written they were not aware of her existence.

Certificates of the entries mentioned in the letter of 5th March 1898 were produced. None of them contained any reference to the present pursuer. They bore upon the matters to which the defenders explained they were referring when writing that letter. It was not alleged that there were any other entries in any register of an incriminating character which concerned the present pursuer.

The defenders pleaded, inter alia— “(1) The pursuer's statements are irrelevant, and insufficient in law to support the conclusions of the summons. (3) The statements complained of not being of or concerning the pursuer the defenders are entitled to absolvitor. (4) The defenders not having slandered the pursuer ought to be assoilzied.”

By interlocutor dated 15th March 1898 the Lord Ordinary ( Kincairney) approved of an issue for the trial of the cause by jury.

The defenders reclaimed, and argued—No issue should be allowed. Immediately upon complain t being made to them, the defenders had disclaimed any intention of referring to the pursuer. They averred that they had never heard of her before, and the pursuer did not allege that this was untrue. No complaint was made of this letter for nearly a year after it was written, and the only publication was to a law-agent to whom it was sent in the course of business. The statement in the letter would not bear the innuendo suggested. The object which the defenders had in making it was to explain and excuse a mistake they had made, and it clearly appeared from the context that the only persons referred to in it were

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those members of the family whose names appeared in the registers. It was not alleged that the pursuer came within that description, and none of the entries referred to concerned her. Authorities cited— Caldwell v. Monro, May 21, 1872, 10 Macph. 717; M'Fadyen v. Spencer & Company, January 7, 1892, 19 R. 350; Folkard on Slander and Libel (6th ed.), 823, and in re Lord Ronald Gower and “The Man of the World,” January 12, 1879 (not reported), there referred to.

Argued for the pursuer—An issue should be allowed. The purpose of the letter was to show that the pursuer's whole family were of bad character, and in particular that the maidens belonging to it were loose and immoral. The pursuer in the present action and the pursuer in the former action were the only unmarried women in the family, and the defenders' slanderous statement therefore clearly applied to the present pursuer. It did not matter what the defenders said they meant. They had uttered a slander in terms which were such as to apply to the pursuer, and she was entitled to reparation for that slander. The cases referred to had no bearing on the present.