Scottish Court of Session Decisions

Gregan Fulton, architect, 12 Castle Street, Edinburgh, raised an action of damages for wrongful publication of a private and confidential matter against Stubbs, Limited, 72 Princes Street, Edinburgh, the proprietors and publishers of Stubbs Weekly Gazette.

The pursuer averred—“(Cond. 1) … The said Stubbs' Weekly Gazette is published every Thursday. It professes to give lists of protested bills of exchange and decrees in absence obtained in the Debts Recovery and Small Debt Courts in Scotland, and also proceedings under sequestrations and cessios. It is circulated largely among the trading class of the community. (Cond. 2) About the month of September 1902 the pursuer found himself in embarrassed circumstances as the result of serious illness and in consequence of a house which he had taken at North Berwick for a period of two years at a rent of £40 a-year, and furnished with valuable furniture, remaining unlet for the whole of the said period. He accordingly consulted his agents with a view of coming to a private arrangement with his creditors… . The pursuer thereafter instructed his agents to call a meeting of his creditors to submit to them a state of affairs, and to make to them an offer of a composition of 5s. per £. The said agents accordingly called a meeting for Tuesday, 14th October 1902. (Cond. 3) On 14th October 1902 seven creditors or representatives of creditors assembled in the chambers of the pursuer's agents at 50 George Street, Edinburgh. The pursuer was represented by Mr R. Galbraith Stewart, S.S.C., a partner of his law-agents' firm, at said meeting.

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Mr Stewart read to the meeting a state of affairs which he had prepared, and gave explanations relative thereto. After some discussion Mr Stewart made, as authorised by the pursuer, an offer of 5s. per £ payable within one week… . The meeting thereupon unanimously accepted the said offer. Before the termination of the meeting Mr Stewart stated that he knew the defenders were in the habit of publishing states of affairs submitted at meetings of creditors, and that he objected to any such publication in this case, as it would ruin the pursuer's prospects.”

A representative of the defenders was present at the meeting, and in Answer 3 it was explained that one of the defenders' subscribers was a creditor of pursuer's, and he instructed the defenders to attend the meeting on his behalf.

The pursuer further averred—“(Cond. 4) Notwithstanding the injunction aforesaid, however, the defenders in their issue of 16th October 1902, under the heading of ‘Lists of Principal Creditors,’ published the following:—‘Gregan Fulton, Architect, Edinburgh. (Private Meeting, see * Note.) [ Then followed a list of twenty-six creditors of the pursuer specifying the sum due to each.] At a meeting held on 14th inst. it was unanimously agreed to accept an offer of 5s. per £, to be paid within a week.’”

The pursuer also averred that in consequence of the publication an arrangement for a partnership between him and another gentleman named had fallen through.

The pursuer further averred as follows:—“(Cond. 6) In consequence of the publication of the said state of affairs by the defenders the pursuer has suffered serious loss and damage. He has been prevented from effecting an arrangement whereby his creditors could have been settled with, and also from embarking on what promised to be a successful business career with his partner in terms of the proposed partnership. His financial reputation has been ruined and his business destroyed. (Cond. 7) For the loss, injury, and damage aforesaid which the pursuer has sustained the defenders are responsible. They acted illegally and wrongfully in publishing in their paper the contents of a state of affairs submitted to a private meeting of the pursuer's creditors and the offer then made on behalf of the pursuer. The said state of affairs was intended for the limited purpose of informing the creditors of the pursuer who might attend the said meeting what his financial position was. The offer made by the pursuer was made at a private meeting, and was intended only for the consideration of his creditors and their representatives who were present. All this the defenders well knew, and in point of fact the pursuer's agent Mr Stewart as aforesaid informed the defenders' representative, who it is believed and averred attended the meeting, not to publish the said statement, and warned him of the consequences of doing so. In breach of said injunction and of their duty in the matter the defenders wrongfully made public the contents of a document intended only for the pursuer's creditors who attended the meeting aforesaid, and also the offer made at the said meeting by the pursuer.”

The pursuer pleaded—“(1) The defenders having wrongfully and illegally published in their Gazette the state of affairs condescended upon, which was of a private and confidential nature, and also the offer made by the pursuer at a private meeting of his creditors, they are liable to the pursuer for the loss, injury, and damage thereby sustained by the pursuer.”

The defenders pleaded—“(1) No relevant case. (2) The publication of the particulars mentioned being a lawful act on the part of the defenders, … the defenders ought to be assoilzied with expenses. (3) The publication complained of being privileged, and the defenders having acted without malice, they are entitled to absolvitor.”

The pursuer proposed an issue for the trial of the cause.

On 30th January 1903 the Lord Ordinary ( Stormonth Darling) pronounced an interlocutor in the following terms:—“Finds that this summons does not disclose any issuable matter: Therefore disallows the issue proposed by the pursuer, sustains the defence, dismisses the action, and decerns,” &c.

Opinion.—“I think there is here no issuable matter. The pursuer does not complain of having been slandered, because all that the defenders published appears to have been a perfectly true account of what passed at the meeting of the pursuer's creditors which he called on 14th October, and at which he submitted an offer of 5s. per £ on his debts, which was accepted. The action accordingly is laid, not on slander, but on the wrongful publication of private and confidential matter. What is said to have taken place is that one of the pursuer's creditors, who had a right to be present at the meeting, selected as his representative a member of the staff of the defenders, and that this representative communicated to the defenders what passed at the meeting. I agree that the fact of this information having been published in a newspaper, the purpose of which is to give information regarding the solvency of traders, confers no privilege on the defenders. They are precisely in the position of private persons getting information and communicating it to outsiders, and I test the case in this way—I take the case of a creditor or the representative of a creditor having been present at this meeting and having joined the other creditors in accepting the composition offered. He then goes into the street and tells a friend of what has passed. Has he any legal duty to refrain from doing so? Such conduct may be shabby, and may result in injurious consequences to the insolvent, but I know no law against his doing so. The person to whom the information has thus been communicated may equally pass it on to another. It may be no better than gossip—malevolent gossip if you will—but such action is not illegal, for the persons I have been figuring are under no sort of obligation towards the insolvent to keep silent;

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there is no relation of confidentiality between them. The case would have been entirely different had these persons been in the employment of the insolvent, or had they obtained the information through having had access to private papers for a limited purpose. That was the case in Brown's Trustees v. Hay. I do not think that decision has any application here.”

The pursuer reclaimed, and argued—No one who was present at the meeting of creditors had any right to communicate what passed for purposes of publication. All record of what passed at the meeting was the private property of the pursuer— Brown's Trustees v. Hay, July 12, 1898, 25 R. 1112, 35 S.L.R. 877; Caird v. Sime, June 13, 1887, 14 R. (H.L.) 37, 24 S.L.R. 569.

Counsel for the respondents were not called upon.