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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Joseph Evans & Sons v. John G. Stein & Co. [1904] ScotLR 42_103 (17 November 1904)
URL: http://www.bailii.org/scot/cases/ScotCS/1904/42SLR0103.html
Cite as: [1904] SLR 42_103, [1904] ScotLR 42_103
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SCOTTISH_SLR_Court_of_Session
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Court of Session Inner House First Division.
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v.
Facts:
A firm of engineers carrying on business in England brought an action of damages against a firm carrying on business in Scotland for defamation contained in two letters and a telegram sent by the defenders from Scotland to the pursuers in England. The pursuers averred that the letters and telegram were “published” in the sense of English law, in respect that the letters were dictated by the defenders to and typewritten by clerks in the employment of the defenders, and that the telegram passed through the hands of the telegraph officials in telegraph offices both on its despatch from Scotland and on its arrival in England.
Held ( rev the judgment of Lord Kincairney) (1) that the locus delicti was in England; (2) that the locus delicti being in England, no action lay in a Scots court unless there was an actionable wrong by English law as well as by Scots law; and (3) that there was no actionable wrong under English law, in respect that there was no publication of the slander, and action dismissed.
On 13th January 1904 Joseph Evans & Sons, hydraulic and general engineers, Culwell Works, Wolverhampton, brought this action against John G. Stein & Company, Ganister and Fireclay Works, Bonnybridge, concluding for £1000 damages for defamation.
On 16th May 1903 the pursuers, in answer to an inquiry made by the defenders, forwarded to the defenders two complete estimates for pumping plant. On 28th May 1903 the defenders, by telegram addressed to the pursuers' agents in Glasgow, Messrs W. B. & J. Bain, accepted one of these estimates, and requested the pursuers to send them the pump specified therein with appurtenances, all as quoted for.
The pursuers averred that owing to the defenders delaying to accept the estimate till 28th May, the acceptance was received by the pursuers just at the time when their works were about to close for the Whitsuntide holidays, and the works were not reopened until 8th June. They further averred that the works of other manufacturers, who supplied the pursuers with chains and other appurtenances of pumping machines, were also closed during that period.
The defenders', on the other hand, averred that the pursuers' agents had represented, contrary to fact, that the pump was in stock and ready for delivery.
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On 18th June 1903 a letter and telegram, and on 19th June a letter, were despatched by the defenders from Scotland to the pursuers in England. The said letters and telegram were alleged by the pursuers to be defamatory.
The pursuers averred—“(Cond. 10) … The question whether the contents of said letters and telegram are actionable falls to be determined according to the law and practice of Scotland.… Explained and averred further that the letters complained of were dictated by the defenders to and typewritten by a clerk or clerks, and were also copied into a letter-book by a clerk or clerks in the employment of the defenders in Scotland. The letters and telegram of the defenders dated 18th and 19th June 1903, addressed to the pursuers, were in the ordinary course of the business opened by and read by members of the staff of pursuers' firm on delivery at the pursuers' place of business. None of said letters or telegram were in fact opened by or read by partners of the pursuers' firm in the first instance. The said letters and telegram were thus published to third parties in the sense of English law both in Scotland and in England. The said telegram, despatched by the defenders on 18th June 1903, passed through the hands of clerks in telegraph offices as an open message both on its despatch from Scotland and on its arrival in England, and was thus published to third parties in both countries in the sense of English law.”
The defenders denied these averments, and “explained that the pursuers carry on business in England, and that the letters complained of were addressed and delivered to the pursuers at their place of business in Wolverhampton. Said letters were not published in Scotland, and the question whether or not the contents of said letters are libellous falls to be determined according to English law and practice. By the law of England, in order to constitute a libel it is necessary for the alleged libellous writing to be published to a third party, and the despatch by the defenders to the pursuers of said letters was not publication in the sense of English law.”
The pursuers pleaded, inter alia—“The defenders having slandered the pursuers as condescended on, the pursuers are entitled to reparation as concluded for, with expenses.”
The defenders pleaded, inter alia—“(1) No relevant case. (4) The defenders, not having slandered the pursuers, are entitled to absolvitor.”
On 21st June 1904 the Lord Ordinary ( Kincairxhy) approved of certain issues and counter issues for the trial of the cause.
Opinion.—“This is an action of damages for defamation. The pursuers Evans & Sons carry on business in England, and the defenders Stein & Company in Scotland. The libel is said to be contained in certain letters and a telegram passing from the defenders in Scotland to the pursuers in England.
“I think the letters are undoubtedly slanderous, and I am of opinion that the issue proposed fairly enough expresses their meaning.
“But the defenders stated at the debate an argument of considerable importance and difficulty, contending that the pursuers were not entitled to any issue. Their argument was that the action was founded on a delict committed in England, and that therefore the pursuers' right depended on the law of England, that according to the law of England there could be no libel unless the alleged libellous writings had been published to a third party; and they aver that the despatch ‘by the defenders to the pursuers of the said letters was not publication in the sense of English law.’ They do not aver on record that the telegram was not published. They argued that the pursuers were not entitled to any issue. But I do not think that the defenders have stated any pleas which can cover that argument, and I could not have given effect to it without an amendment of the record. But although the argument was ingeniously and forcibly stated, I am not prepared to assent to it. In the first place, I am not convinced that the case should be determined by the law of England. I think it should be determined by the law of Scotland. The defenders maintained that the place where the letters and telegram were delivered to the pursuers was the locus delicti, and that the law applicable was the lex loci delicti They founded chiefly on Kendrick v. Burnett, November 17, 1897, 25 R. 82, 35 S.L.R. 62, and Goodman v. London and North-Western Railway Co., March 6, 1877, 14 S.L.R. 449. These were cases of injuries inflicted or suffered either on the high seas or in England. But although they are important cases, their bearing on the present case is not nearly so close as that of M'Larty v. Steele, January 22, 1881, 8 R. 435, 18 S.L.R. 266. They were cases in which there was no doubt about the locus delicti. M'Larty v. Steele was an action raised by one Scotsman against another on account of defamation uttered in Penang, in which it was contended that the law of Penang (I understand, the law of England) should be applied, but where the case was decided in accordance with the law of Scotland. That case appears to me to be closely applicable when examined, and to warrant or necessitate the conclusion that this case falls to be decided in accordance with the law of Scotland.
“Further, I do not think it established that England was the locus delicti in this case. No authority was cited to that effect. I am disposed to think that Scotland was the locus delicti, because the letters were written and posted and the telegram despatched in Scotland. It was in Scotland that the defenders did all that they did. They launched the slanders complained of there, leaving them to be taken up and carried forward by the ordinary postal machinery of the country. Now, according to the law of Scotland, publication is not essential to the completion of a libel— Mackay v. M'Cankie, 1883, 10 R. 537, 20 S.L.R. 357. It may be that no damages could have been claimed had the letters not reached the pursuers at all. But when the defenders had done all they could to ensure delivery,
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the utmost that could be said is that their liability might be suspended while the letters were in transit. “Still further, there was, in my opinion, sufficient publication in this case, and it is to be noticed that the defenders do not venture to aver that the telegram which went through the hands of the telegraph clerks was not published, and it seems to me that there is a sufficient averment of publication of the letters also. At least I think there is no sufficient reason for refusing an issue on the ground of want of publication. What the result may be if it should appear in the end that letters had not been published need not now be determined.”
The defenders reclaimed, and argued—The locus delicti was in England, where the wrong was done. As long as the letters were in Scotland no injury was done. It was only when the letters and telegram were delivered in England that the damage was done, and therefore English law must determine the question of remedy—The M. Moxham, 1876, 1 Prob. Div. 107. But in English law no action lay for the damage, because there was no publication of the letters or telegram. The defamatory words were, as in this case, communicated only to the person defamed. There was consequently, in the view of English law, no injury for which damages could be got—Odgers on Libel and Slander, 3rd ed., pp. 170 et seq Sending a letter through the post to a person properly addressed to him was not publication— Barrow v. Lewellin, Hob. 62. There was thus no sufficient averment of publication. In the case of an act done in a foreign country, no action would lie in the courts of this country unless the act was actionable both in the foreign country and in this country— Kendrick v. Burnett, November 17, 1897, 25 R. 82, 35 S.L.R. 62; Goodman v. London and North-Western Railway Company, March 6, 1877, 14 S.L.R. 449; Horn v. North British Railway Company, July 13, 1878, 5 R. 1055, 15 S.L.R. 707.
Argued for the respondents—The locus delicti was in Scotland, for it was in Scotland that the defenders did all the acts complained of, viz., the writing and posting of the letters. Therefore the question whether there was an actionable wrong fell to be determined by the lex loci delicti, i.e., solely by the law of Scotland—Gillespie's edn of Barr's International Law, p. 922. In Scotland publication was not necessary to ground an action for defamation— Mackay v. M'Cankie, January 27, 1883, 10 R. 537, 20 S.L.R. 357. The delict was complete on the letters being posted, just as a contract might be completed by the posting of a letter—the Post Office being the mere machinery of delivery. So in criminal law the place where letters are posted is the locus of a crime carried out through the agency of the Post Office— The Queen v. Holmes, 1883, 12 Q.B.D. 23. Also in England a letter was held to be published as soon as posted, and in the place where it was posted if it was ever opened anywhere by third parties—Odgers on Libel, 3rd ed., p. 175. (2) Even if it were held that the locus delicti was in England, the slander was “published” in the sense of English law, and there was therefore an actionable wrong by English law as well as by Scots law. It was settled in England that communication to clerks or typewriters in the employment of the person sending the letter was “publication”— Pullman v. Hill & Company [1891], 1 Q.B. 524. The sending of the telegram was “publication” to the telegraph officials— Williamson v. Freer, 1874, L.R., 9 C.P. 393. These decisions were binding on a Scots court in deciding what constituted “publication” in English law. The defamation being written, it was unnecessary to specify the names of the persons to whom it was published. The present case came within the principle recognised in Machado v. Forster [1897], 2 Q.B. 231; M'Larty v. Steele, January 22, 1881, 8 R. 435, 18 S.L.R. 266.
The peculiarity of the case is that while the law of Scotland awards reparation for defamatory statements made to the party accused on the ground of injury to feelings, the law of England, which does not take account of injury to feelings, gives no action for statements addressed to the party defamed himself. As counsel are agreed as to the doctrine of the law of England on this subject, it is unnecessary that it should be proved.
The Lord Ordinary has allowed an issue on the ground, as he states, “that Scotland was the locus delicti, because the letters were written and posted and the telegram despatched in Scotland.”
On the best consideration I have been able to give to the Lord Ordinary's reasoning on this subject I am not able to concur in his opinion. It appears to me that it is of the essence of an injury of the nature of defamation that the defamatory charge should reach its destination or should at least become known to someone. While the letters complained of were in transit through Scotland
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I do not overlook the consideration that a contract may be completed by the posting of a letter, on the principle that the Post Office is an agency for the transmission of a completed contract. But, as I think, there is no real analogy between the cases. In cases of contract it is considered that the offerer by sending his offer through the Post Office invites a reply through the same medium, and thus the Post Office, with the assent of the two parties to the proposed contract, is made the agent for the delivery of the reply. This is the principle of the law on the subject, because the Post Office does not hold itself out as an agent for anyone except for the delivery of the material packets that are entrusted to it.
In the present case I cannot hold that the Post Office was the agent for the publication of a libel, and there was certainly no preliminary assent on the part of the pursuers to the use of the Post Office for the transmission of a libel upon themselves. I therefore come to the conclusion that no wrong was committed by the defenders within the jurisdiction.
It is proper to notice that the pursuers make a point (Art. 10) of the fact (as they aver) that the letters complained of were dictated by the defenders to and typewritten by a clerk or clerks in their employment, and were copied into the defenders' letter-book.
Now, I am not prepared to hold that the employment of an amanuensis in the ordinary course of business to write letters on business amounts to publication of a libel should such letters be found to contain defamatory matter.
The work of an amanuensis to whom letters are dictated is confidential employment, and in the general case the amanuensis knows nothing of the parties or the subject in controversy. His duties are purely mechanical, and he cannot without a breach of confidence make any use of the information which he may pick up in writing a letter to dictation. It may be that if the person employed to write the letter knew the party to whom the letter was addressed, and the letter conveyed to his mind a defamatory imputation, an action would lie. But in this record we have not even a statement of the name of the clerk to whom the letters were dictated, and there is no suggestion that the letters conveyed any meaning to his mind. In such circumstances I cannot hold that there is a relevant statement of a defamatory libel addressed or uttered to a known person within the jurisdiction. I may add that the difficulty as to formulating a relevant averment in such a case is not removed by the insertion of the word “maliciously.” This word when applied to the act of dictating a letter is obviously a mere expletive, conveying no meaning distinct from that of the averment without the word maliciously.
What I have said regarding the dictation of letters applies with if possible greater force to the transmission of telegrams. The duties of the clerks in the telegraphic department of the Post Office are strictly confidential, and I think it would be a new departure in the law of libel to hold that a telegraphic message which is not otherwise actionable becomes so because it is read by the Post Office clerks who are engaged in its transmission. In this case also it would in my opinion be necessary to make a circumstantial averment of publication to an individual. It would then depend on the evidence of the person named whether the words complained of conveyed any defamatory meaning to his mind.
On the whole matter I am of opinion that no relevant case has been made, and that the defenders are entitled to be assoilzied from the action.
The first question is, was there a delictum or actionable wrong. Nobody disputes that the defenders' conduct was blameworthy. But the question is whether it is an actionable wrong, and it is only after we have ascertained that that we can go on to ascertain whether the locus was one or other of the places mentioned on record. The law on that question, as I think it is settled by modern decisions, is that in order to maintain an action ex delicto in the courts of this country, when the wrong is committed in another country, the wrong must be one for which an action can be maintained both by the law of this country and by the law of the country in which it is said to have been done.
The first question therefore is, whether it is an actionable wrong according to our
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I think that principle also goes to meet the pursuer's argument that the defence in this case was founded upon the law of remedy and not upon the law of obligation. Mr Salvesen argued that if the law of England affords no remedy, the defence on that ground raises a question of remedy which must always be determined by the law of the country in which action is brought. That appears to me to be a confusion of things which ought to be distinguished. The method by which a right may be enforced is a question of procedure; but whether there is any remedy at all, or in other words whether there is a right of action, is not a question of procedure but a question of legal right depending on the existence of an obligation ex contractu or ex delicto, and the question of obligation must be determined first before we can consider what the remedy is.
This appears to me to be in accordance with the doctrine explained by Lord Brougham in Don v. Lippmann, 1837, 2 Sh. & M'L. 682. The distinction taken is between the law which governs the constitution of an obligation and the law of procedure which regulates the remedy. Lord Brougham points out that personal rights and obligations must be fixed by the law of the country in which the parties in whom they inhere are living. But they do not necessarily look to the courts of that country alone as the only tribunals by which the performance of obligations may be enforced or damages may be recovered, because the party complaining is entitled to follow the wrongdoer to the courts of his own country or of any other country to the jurisdiction of which he may be subject. If he does so, he must submit himself to the modes of procedure which are adopted by the court to which he resorts.
This arises from the necessity of the case, because no court of justice can invent new forms of procedure and new rules of evidence in order to meet the case of any particular pursuer who comes into court complaining of wrong done or right infringed in some other country. The rules of evidence and procedure must be applicable to all alike, and therefore when a pursuer comes here he is bound to submit himself to the rules of this Court as to the methods by which his remedy is to be obtained, but he is bound in the first place to show that according to the law of his own country he has a right under which he is entitled to a remedy. In the present case it has been conceded by the pursuer's counsel that he has no right by the law of his own country which will support an action in the courts of that country or in any other.
The question then remains, whether there is a relevant averment of publication or communication to somebody other than the pursuer. I agree with Lord M'Laren that there is not. I think there may or may not be publication of the language contained in a letter if the letter is dictated to a clerk, or if the words in a telegram are communicated as they must be to telegraph clerks. But whether there has been such communication or not is a question of fact; and if a pursuer complains of publication as a wrong he is bound to state specifically to whom the language complained of was made known. Here the averments on that subject are, as I agree with Lord M'Laren, too vague and too entirely wanting in
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The
The Court sustained the reclaiming-note and dismissed the action.
Counsel for the Pursuers and Respondents— Salvesen, K.C.— Irvine. Agents— Dove, Lockhart, & Smart, S.S.C.
Counsel for the Defenders and Reclaimers— Jameson, K.C.— T. B. Morison. Agent— John Morton, Solicitor.