Scottish Court of Session Decisions

George Neill, formerly builder and now commission agent, Edinburgh, raised an action against Simon Henderson, baker, Edinburgh, in which he concluded for payment of £500 as damages for slander.

The pursuer averred—“(Cond. 2) About twenty years ago the defender and Dr John Bowie, 41 Lauriston Place, Edinburgh, and John Nisbet, High Street, Edinburgh, purchased the estate of Parsons Green for feuing purposes, and entered into an agreement for the construction of certain roads dividing their respective portions of said estate. Some time ago disputes arose between the defender and Dr Bowie as to the payment of the cost of constructing said roads. The defender and Dr Bowie agreed to refer the matters in dispute between them in connection with said roads to the arbitration of Mr William Ormiston, Lord Dean of Guild of Edinburgh. Mr Ormiston accepted the reference, and appointed a meeting of parties and their agents to be held on the ground on 6th April 1900, at 2.30 P.M., to hear parties and take evidence on the matters in dispute. As the pursuer had constructed the major portion of the roads on said estate, he was asked by Dr Bowie to attend the proposed meeting, so as to point out to the arbiter the roads which he had made on the orders of and at the expense of Dr Bowie. (Cond 3) On said 6th April 1900 the pursuer accordingly went to said meeting at Hobart Street, Parsons Green. After the agents of the parties had made statements to the arbiter, the pursuer was called upon to state to the arbiter which of the roads in question were made by the different proprietors Dr Bowie and the defender. After the pursuer had made this statement, the defender, in the presence and hearing of the said William Ormiston, Alexander Guild, of Messrs Reid & Guild, W.S., agent for Dr Bowie, and the said Dr Bowie, said, ‘Mr Ormiston, that man cannot speak one word of truth, and all he has stated just now is lies from beginning to end,’ or used words of like meaning or import. The said statement was of and concerning the pursuer, was false and calumnious, and was made maliciously and without probable or any cause. The pursuer immediately called upon the defender to withdraw the said statement, but he refused to do so. On the contrary, the defender reiterated the said slanderous statement in the same or similar language, and subsequently, during said meeting, he addressed other offensive terms towards the pursuer. Subsequently the pursuer wrote the defender by registered letter, calling upon him to apologise for said slanderous statement, but to this letter the defender has made no answer.”

The defender pleaded—“(1) The pursuer's averments are neither relevant nor sufficient to support the conclusions of the summons. (3) In any event, any statement made by the defender regarding the pursuer being privileged, and the defender having made the same without malice, and

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with probable cause, decree of absolvitor should be pronounced.”

The pursuer proposed the following issue for the trial of the cause—“Whether on or about the 6th day of April 1900, and at or near Hobart Street, Parsons Green, Edinburgh, the defender, in the presence and hearing of William Ormiston, Lord Dean of Guild of Edinburgh, Alexander Guild, of Messrs Reid & Guild, W.S., Edinburgh, and Dr John Bowie, 14 Lauriston Place, Edinburgh, or one or other of them, did falsely and calumniously say of and concerning the pursuer: ‘Mr Ormiston, that man cannot speak one word of truth, and all he has stated just now is lies from beginning to end,’ or did use words of the like import and effect of and concerning the pursuer, to his loss, injury, and damage. Damages laid at £500 sterling.”

On 13th November 1900 the Lord Ordinary ( Kincairney) approved of the issue for the pursuer and appointed the same to be the issue for the trial of the cause.

Note.—“I am of opinion that the issue lodged by the pursuer should be approved. The words complained of amounted to a general charge of mendacity, and are, in my opinion, slanderous. The case of Milne v. Walker, November 24, 1893, 21 R. 155, appears to be in point. There have been cases in which language of that sort has been held not to support an award of damages, where it appeared from the proof that the words were spoken in the heat of a quarrel, and were not intended to impute, nor understood as imputing, actual delinquency, but were merely of the nature of coarse vituperation, and were so understood by the person attacked, as in Watson v. Duncan, February 4, 1890, 17 R. 414, and Christie v. Robertson, July 12, 1899, 1 F. 1155. These were not judgments on issues, but on the evidence, and if in this case it shall appear in the evidence that nothing slanderous was intended or understood, the defender may be entitled to a verdict.

“It was argued for the defender that the case was one of privilege, the words complained of being spoken in the course of proceedings in an arbitration. The pursuer maintained that proceedings before an arbiter were not to be regarded, in questions of this sort, as judicial proceedings. But I am clearly of opinion that they are (see Macmillan v. Free Church, July 9, 1862, 24 D. 1282, at p. 1285; Hay v. Cameron, June 18, 1898, 6 S.L.T. 67), and that words spoken in the course of proceedings before an arbiter are entitled to a certain measure of privilege. But I do not consider that such privilege covers a charge of general mendacity; and I am therefore of opinion that it is not necessary to take an issue of malice. I may add that I think malice is relevantly averred.

The defender reclaimed, and argued—(1) There was no issuable matter on record. Even if the defender had made the statement averred by the pursuer, it plainly related to what had passed at the time, and not at any prior period. It was not a charge of general mendacity, but only a statement that what the pursuer had said while giving evidence in the course of the arbitration was not true. The whole point of the charge was in the second part, the first part was merely explanatory. The statement amounted to no more than this—“That is a discredited witness, and you are not to believe him.” The case of Milne v. Walker, supra, did not apply. In that case the charge was made deliberately in a letter written to the newspapers, and it was not a mere casual observation like the present. The observation was also made in rixa, and the literal meaning of the words was extravagant. The action should therefore be dismissed as irrelevant.— Macdonald v. Rupprecht, January 19, 1894, 21 R. 389. (2) If the action were relevant, the statement was privileged, and the issue should be varied by inserting the words “and maliciously.” Arbitration proceedings were in the same position as judicial proceedings. There were no facts and circumstances stated on record from which malice could be inferred, and a mere general averment of malice was not sufficient.— Scott v. Turnbull, July 18, 1884, 11 R. 1131; Gordon v. British and Foreign Metaline Company, November 16, 1886, 14 R. 75; Selbie v. Saint, November 8, 1890, 18 R. 88. In any event, malice must be inserted in the issue, and no example could be cited of any case of judicial slander where an issue had been allowed in which malice had not been inserted in the issue. The practice was all the other way.— M'Intosh v. Flowerdew, February 19, 1851, 13 D. 726; Mackellar v. Duke of Sutherland, January 14, 1859, 21 D. 222.

Argued for the pursuer—(1) The action was relevant. The words used were clearly defamatory. The initial statement was a general charge of mendacity, and it was thereafter stated that his conduct on this occasion was a particular example of a general practice. (2) The case was not one of privilege. The pursuer had not been a party to the constitution of the Court of Arbitration. Further, the Lord Ordinary had rightly held that the initial part of the statement was so irrelevant that it took away any privilege that the defender might otherwise have had. If the case were one of privilege, there were sufficient facts and circumstances stated on record to infer malice.— Douglas v. Main, June 13, 1893, 20 R. 793; M'Ternan v. Bennett, December 21, 1898, 1 F. 333.

At advising—