Scottish Court of Session Decisions

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Cite as: [1901] SLR 38_420, [1901] ScotLR 38_420

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SCOTTISH_SLR_Court_of_Session

Page: 420↓

Court of Session Inner House Second Division.

Friday, March 1. 1901.

[Sheriff Court at Dunfermline.

38 SLR 420

Hunter

v.

Russell.

Subject_1Expenses
Subject_2Reparation
Subject_3Slander
Subject_4Apology.
Facts:

In an action of damages for slander, the defender lodged a minute in which it was stated “that if any expressions used by the defender concerning the pursuer could be construed as reflecting in any way upon the pursuer, his character or conduct, he unreservedly withdraws the same, there being no ground therefor, and expresses his regret for the occurrence.” The pursuer lodged a minute of acceptance thereof. on a motion for expenses, held ( dub. Lord Young) that the terms
Page: 421↓
of the apology being equivalent to the verdict of a jury in favour of the pursuer, the pursuer was entitled to expenses to the date of acceptance of the tender.

Headnote:

The Rev. George Hunter, minister of the parish of Kelty, Blairadam, brought an action in the Sheriff Court of Fife at Dunfermline against James Russell, grocer, Kelty, in which he claimed £500 as damages for slander. The pursuer averred that the defender had used certain words of and concerning him, meaning thereby that the pursuer had dishonestly appropriated money belonging to the defender. The pursuer also averred that he was willing to forego any claim of damages that he had if a suitable retraction and apology were granted, but that the defender declined to withdraw and apologise. The defender denied having used the words complained of. The Sheriff-Substitute ( Gillespie) having allowed a proof, the pursuer appealed to the Court of Session for jury trial, and lodged issues for the trial of the cause. During the debate in the Inner House, counsel for the defender stated that while his client did not admit that he had used the words complained of, he was willing to lodge a minute withdrawing and expressing his regret for any expressions he might have used reflecting on the pursuer's character. The case was accordingly continued that this might be done. On 19th February 1901 the defender lodged a minute, which bore—“that if any expressions used by the defender concerning the pursuer could be construed as reflecting in any way upon the pursuer, his character or conduct, the defender unreservedly withdraws the same, there being no ground therefor, and expresses his regret for the occurrence.” The pursuer, on 21st February 1901, lodged a minute of acceptance of the defender's apology, and the case was enrolled for the disposal of the question of expenses. The pursuer moved for expenses, and argued that the apology now offered was equivalent to the verdict of a jury in his favour. He cited Faulks v. Park, December 22, 1854, 17 D. 247, and Mitchells v. Nicoll, May 24, 1890, 17 R. 795. The defender maintained that the Court should find no expenses due, on the ground that the apology contained no admission that he had used the words complained of, and that it was therefore merely a settlement of the action, and not equivalent to the verdict of a jury in his favour.

Judgment:

Lord Justice-Clerk—In this case the pursuer has succeeded in getting rid of a serious imputation upon his character; and I am of opinion that he is entitled to expenses down to the date of his acceptance of the retraction made by the defender.

Lord Young—I have some difficulty in this case, but in the circumstances I am not sorry to think—from what I know to be your Lordships' views—that it is not to be acted upon. My difficulty is this, that the pursuer does not by this minute establish the case which he must have established to the satisfaction of a jury before he could get a verdict, viz., that the words complained of were used calumniously and falsely by the defender, meaning thereby to represent that the pursuer had dishonestly appropriated £4. If the jury had found that the defender used the words complained of, but that these words did not mean that the pursuer had dishonestly appropriated £4, that would have meant a verdict for the defender, and there is nothing in this minute which negatives that possible finding by the jury and so establishes the case which the pursuer must have established in order to get a verdict. But it is not necessary to do more than indicate my difficulty, I should have been disposed to give expenses to neither party.

Lord Trayner—I cannot say that I participate in the doubts which Lord Young has just expressed. I do not know that I have ever seen or heard of a tender which really amounted to an admission of the slander on which the action was laid. In my own experience actions of damages for slander have been settled very much on the lines on which the action here has been settled. The broad question raised in this case was this—The pursuer avers that the defender had slandered him, and he came into Court in order to clear his character of that slander—a matter of importance to anybody, but especially of importance to the pursuer looking to the nature of the slander and to the position and office which he occupies. Now, what is the result? The result has been to vindicate the pursuer entirely from the charge made against him. What the defender says comes to this—“I do not know that I used the language attributed to me, but if I did, and if it is capable of the meaning put upon it, then I express my regret for using such language of the pursuer.” That is an ample vindication of the pursuer's character.

Lord Moncreiff—I am of the same opinion, and also on the ground that the pursuer has obtained everything for which he brought the action, viz., the vindication of his character. As to the apology, I think that it is all that can be expected. The effect of such an apology is precisely the same as if the pursuer had obtained a verdict. If a pursuer goes on with his action after receiving an apology in such terms, he is, according to the case cited— Mitchells v. Nicoll, 17 R. 795—liable in expenses.

The Court, in respect of the minute of tender and acceptance thereof, dismissed the action, and found the pursuer entitled to expenses in both Courts to the date of acceptance of the tender.

Counsel:

Counsel for the Pursuer and Appellant— Watt, K. C.— Wilton. Agent— P. R. M'Laren, Solicitor.

Counsel for the Defender and Respondent— Constable. Agents— Wallace & Begg, W.S.
1901