Scottish Court of Session Decisions

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Cite as: [1899] SLR 37_54, [1899] ScotLR 37_54

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Wednesday, November 1. 1899.

37 SLR 54

Sproll

v.

Walker.

Subject_1Expenses
Subject_2Slander
Subject_3Tender
Subject_4Sufficiency of Apology.
Facts:

The defender in an action of damages for slander, the slander consisting in the use of the expression “swindler” during a quarrel, tendered on record to the pursuer the sum of one guinea with expenses, and offered to retract any language of an offensive nature which he might have used. He further wrote to the pursuer a letter in which he expressed regret for having used the expression, if he did use it—while denying that he had used it. The pursuer rejected the tender, and the case was tried before a jury, who found a verdict in his favour, but awarded him only one farthing damages.

The presiding judge refused to grant to the pursuer the certificate necessary to entitle him to recover expenses where the damages are below £5.

Held that the defender was entitled to expenses from the pursuer.

Headnote:

An action was raised by James Sproll, confectioner, Leith, against John Walker, wine merchant, Uphall, Linlithgowshire, concluding for payment of £500 as damages for slander. The ground of action averred by the pursuer was, that while he was engaged in transacting business in the shop of Mr Fleming, one of his customers, the defender entered, and, in the presence of Mr Fleming, said of the pursuer, “That man is a damned swindler.” The pursuer further averred that the defender made this statement intending to represent that the pursuer was a dishonest person, and that his business had suffered in consequence of the statement.

The defender averred that there had been a quarrel between the pursuer and himself over a trade transaction. He admitted having used strong language to the pursuer, but denied that he had intended to reflect in any way on his honesty. The defender further stated—“Defender without prejudice to his pleas, hereby offers to retract any language he used on the said occasion of an offensive nature, and to apologise for the same, and he also tenders the sum of one guinea sterling in full of the pursuer's claims against him, with the expenses of process to date as these may be taxed. Moreover, since the defences were lodged, the defender, with the view of ending the dispute between them, wrote a letter, of date 25th April, a copy of which is produced, apologising for what occurred on the occasion in question. Reference is made to said letter.”

The letter in question was in the following
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terms:—“ Holmes, Uphall, 24 th April 1899.— Sir,—Referring to what passed on the evening of Thursday 16th February last between you and me on my premises and those of my neighbour and tenant Mr Fleming, I hereby express regret to have lost my temper with you and engaged in an interchange of abusive epithets. I don't believe I called you a swindler. If I did I am sorry for it. I thought myself wronged in the lozenge transaction we were discussing, and about which you called on me, and in the heat of the moment I went further with you than I intended or meant. Considering the provocation you gave me you had little ado to take the matter into Court. However, as much in justice to myself as to you, I repeat my regret for the use of unbecoming language towards you.—Your obedient servant. (Signed) John Walker.”

The defender's agents had previous to the closing of the record written the following letter to the pursuer's agent:—“Dear Sir— James Sproll v. John Walker. …—There had been a deal between pursuer's firm and defender in lozenges. Defender thought himself overcharged. He wrote about it and pursuer called for him on the subject. A discussion ensued, which soon became an abusive altercation. On defender's part I express his willingness to withdraw and apologise for his share of that altercation, as also to pay pursuer's expenses of the action. As defences are not due till to-morrow, these expenses can only amount to between £3 and £4, say that the sum be fixed at £5. Of course, defender maintains he made use of no such words as pursuer has libelled, but in any case he withdraws any hint of charging pursuer with being a swindler. …—Yours truly (Signed) James F. Macdonald.”

The case was tried before a jury on the following issue:—“Whether, on or about 16th February 1899, and within or near the premises occupied by Mr Alexander Fleming, grocer, Holmes, the defender, in the presence and hearing of the said Alexander Fleming, falsely and calumniously said of and concerning the pursuer that he was ‘a damned swindler,’ or used words of the like import and effect, to the loss, injury, and damage of the pursuer? Damages laid at £500.”

The jury returned a verdict for the pursuer on the issue, and assessed the amount of damages at one farthing.

Judgment:

Lord M‘Laren refused to grant the pursuer the certificate which under section 40 of the Court of Session Act 1868 (31 and 32 Vict. cap. 100) is necessary to enable the pursuer to recover his expenses where the sum awarded by a jury in an action for defamation or libel is less than £5.

On the motion to apply the verdict the defender moved the Court to find him entitled to his expenses against the pursuer, on the ground that he had in the letters quoted above offered an ample apology to the pursuer, and had tendered to him a sum substantially greater than that a warded by the jury.

The defender founded upon the cases of Mitchells v. Nicoll, May 24, 1890, 17 R. 795, and Bonnar v. Roden, June 1, 1887, 14 R. 761.

The pursuer opposed the motion, on the ground that the defender had never offered a proper apology inasmuch as he had never actually withdrawn the offensive expression— Faulks v. Park, December 22, 1854, 17 D. 247.

Lord M‘Laren—I have already exercised the power which is conferred by statute on the presiding Judge of refusing the pursuer his expenses by withholding the certificate which would entitle him to expenses when the damages awarded are less than £5. I cannot say that I had any difficulty in taking that course, because the sum awarded as damages was the smallest possible. It appeared to me that the action was of the most trivial character, and ought not to have been persisted in after the explanation offered.

I should have been pleased to concur in any judgment proposed by your Lordships as to the defender's expenses. My opinion, however, is, that in the circumstances the defender is entitled to his expenses, because, while the Court of Session Act gives power to the presiding Judge as to the pursuer's expenses, I understand that when the defender moves for expenses the question must be dealt with in the same manner as before the passing of that Act. Now, in an ordinary case of an action for damages, if the sum awarded is less than the sum tendered, the defender is entitled to expenses. This rule is modified in the case of actions for slander where character is involved, because a tender is not deemed sufficient unless it is accompanied by an apology. Having regard to the trivial character of this action, I am of opinion that the apology offered was sufficient. The kind of apology required depended on the nature of the imputation, and as the case is merely one of the use of an offensive expression in the circumstances described, I think the apology offered was sufficient, that it ought to have been accepted, and that the pursuer was in the wrong in carrying the case to trial.

Lord Kinnear—I agree, and would only add that I am very far from saying that, where an action is brought for the vindication of character from a serious slander, a tender in money is sufficient to relieve the defender from liability for expenses if it be not accompanied by such an apology as by its terms vindicates the character of the pursuer as effectively as would the verdict of a jury. That is the law laid down in Faulks v. Park ( 17 D. 247), and I see no reason to dissent from it, but it has no application to a case of this kind, which is obviously an action of a trivial and unreasonable character and such as a reasonable man would not have brought into Court, and which the presiding Judge has refused to say was necessary for the vindication of the pursuer's character.

Therefore it appears to me that looking to the fact that there is nothing in the case except that language was used by the defender which should not have used, and that the defender having an action brought against him expressed sorrow for having

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used it, if he did use it—because he did not admit having used it—and tendered a sum of money, not indeed large, but substantial as compared with the sum which the jury has thought sufficient to award, if the pursuer had accepted the sum and apology offered he would have had all the advantage and more which the verdict of the jury has given him.

The Court pronounced this interlocutor—

“Apply the verdict found by the jury on the issue in this cause, and in respect thereof decern against the defender for payment to the pursuer of the sum of one farthing: Find the defender entitled to expenses since 6th April 1899, the date of lodging the defences, and remit,” &c.

Counsel:

Counsel for the Pursuer— T. B. Morison. Agent— William Hamilton, S.S.C.

Counsel for the Defender— J. C. Watt. Agent— James F. Macdonald, S.S.C.
1899