Scottish Court of Session Decisions

A. Hunter & Company, coachbuilders, Crown Works, Lockerbie, Dumfries, and Adam Hunter, as sole partner of that firm and as an individual, raised an action against Stubbs, Limited, publishers of Stubbs' Weekly Gazette, carrying on business and having an office at 92 Princes Street, Edinburgh, to recover damages for loss and injury suffered by them, as they alleged, through the wrongful publication by the defenders of a false and calumnious paragraph in Stubbs' Weekly Gazette.

The pursuers averred that the object of Stubbs' Weekly Gazette was to give information as to bankrupts, insolvents, and defaulters in payment of their just debts, and to enable traders to avoid making bad debts; that a special part of said Gazette, popularly known among the mercantile community and others as the black list,” was devoted to the publication of the names of traders and others against whom decrees in Court in absence had been taken; and that the name of any trader appearing in that list was looked upon with grave suspicion as to solvency.

The pursuers further averred—“(Cond. 2 On or about 6th October 1902 the Star Cycle

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Company, Limited, Wolverhampton, raised an action in the Debts Recovery Court of Dumfries and Galloway at Dumfries, against the pursuers for £40, 2s. 5d. On the day preceding the court-day the pursuers paid the agent of said cycle company £5 to account, and arranged for payment of the balance of said account. Accordingly, on the court-day, 21st October, the pursuers appeared in court by a law-agent, and consented to decree in foro being pronounced against them for £35, 2s. 5d., the balance of said account, which was duly done, it being duly noted in the Sheriff Court books that the pursuers appeared by an agent, and that decree had been granted ‘for £35, 2s. 5d., with 23s. 7d. of expenses, and this of consent.’ (Cond. 3) Notwithstanding the presence at the diet in Court of an agent for the pursuers, and the said decree in foro, the defenders wrongfully and falsely and calumniously published in the issue of Stubbs' Weekly Gazette for Thursday, October 23, 1902, the following—

‘ Extracts from the Registers of Decrees in Absence.

Dumfries, 1902, October 21.

Amount, £35, 2s. 5d.

Defenders—A. Hunter & Company, Crown Works, Lockerbie.

Pursuers—The Star Cycle Company, Limited, Wolverhampton.’

… By said paragraph and publication thereof the defenders represented to the public that a decree in absence for £35, 2s. 5d. had been pronounced against the pursuers at the instance of said cycle company on said 21st October 1902, and it was so understood by the public. The said allegations in said paragraph are false and calumnious in respect that no such decree in absence passed, but a decree in foro, and that of consent. By said false and calumnious paragraph so published the defenders falsely and calumniously represented to the public and mercantile community that the pursuers were unable to pay their debts, and were in insolvent circumstances or pecuniary embarrassments, and were unworthy of credit.”

The defenders explained that the following note was prefixed to the list of decrees in absence published in the Gazette—“The following extracts from the official registers have been received since our last issue made up to the dates given in the second column. It is probable that some of the decrees have been sisted or paid, but it is not known which of them remain unsettled or unpaid at the present time, and in no case does publication of the decree imply inability to pay on the part of the persons named. We are willing at all times to insert any authentic information or explanation relative to decrees, or to correct any inaccuracy that may exist in the registration thereof or otherwise.”

The defenders further stated that when the case was called in the Debts Recovery Court on October 21, the Star Cycle Company were represented by an agent, but the pursuers were not present and had not instructed an agent to appear on their behalf; that the agent representing the Star Cycle Company moved for decree for the sum of £35, 2s. 5d., and his motion was granted; that the decree was recorded at the time in the Sheriff Court books by the Sheriff-Clerk as a decree in absence; that after the Court had risen on that date the defenders' representative examined the said register for the purposes of the defenders' Gazette, and copied out the entries in said register as they then appeared; that this copy was transmitted to the defenders for publication in their Gazette, and was published there; and that subsequently, on the representation of the agent for the Star Cycle Company that an agent for the pursuers was present and consented, the Sheriff-Clerk altered the entry in the Book of Causes to show that the pursuers were represented by an agent, and, in the book containing the decerniture, added the words “and that of consent.”

The defenders pleaded, inter alia—“(2) The entry in the defenders' Gazette being a correct copy of the register as contained in the Book of Causes at the time when it was examined by the defenders, and the defenders in publishing the same having acted without malice, they are entitled to absolvitor. (3) The entry complained of being a correct record of proceedings in open court, and the defenders being privileged in publishing it, they ought to be assoilzied.”

The action was tried before Lord M'Laren and a jury under this issue—“Whether on or about the 22nd October 1902 the defenders wrongfully published in a publication known as Stubbs' Weekly Gazette a statement in the terms set forth in the schedule appended hereto? Whether the said statement in whole or in part is of and concerning the pursuers, and falsely and calumniously represents that the pursuers were unable to pay their debts, to their loss, injury, and damage? Damages laid at £500.”

The schedule appended was the paragraph published in defenders' Gazette on October 23rd 1902, as set forth in Cond. 3 quoted above.

The jury found for the pursuers and assessed the damages at £100.

The defenders moved for a rule on the pursuers to show cause why a new trial should not be granted.

Argued for the pursuers—The meaning of the paragraph alleged by the pursuers was not its fair meaning, having regard to the statement in the Gazette prefixed to the paragraph, to the effect that “in no case does publication of the decree imply inability to pay on the part of the persons named.” The defenders were privileged in giving publicity to proceedings in open Court, and in the paragraph published, having regard to the circumstances in which it was published, there was on the facts no mistake of substance which could mislead the public— Crabbe and Robertson v. Stubbs Limited, July 4, 1895, 22 R. 860, 32 S.L.R. 650; M'Lintock v. Stubbs, October 15, 1902, 40 S.L.R. 10. If there was a mistake, the mistake was made by the

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Sheriff-Clerk, and the extract was correctly made from the books of the Court on the afternoon of the day on which the decree passed, though these books had been subsequently altered. There was no materiality in the distinction between a decree to which the defender consents and a decree in absence. Under the Debts Recovery Act (30 and 31 Vict. c. 96), sec. 3, the form of summons was the same as in the Small Debt Act, and by sec. 6 of the former Act it was provided that the effect of a decree in absence was that the defender was held as confessed. There was evidence to the effect that at the time the decree was granted the pursuers were unable to pay their debts, and in view of this the damages awarded were excessive.