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Cite as: [1905] ScotLR 42_804, [1905] SLR 42_804

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House Second Division.

Wednesday, July 19 1905.

[ Lord Johnston, Ordinary.

42 SLR 804

Lumsden

v.

West Lothian Printing and Publishing Company.

Subject_1Reparation
Subject_2Slander
Subject_3Newspaper
Subject_4Innuendo.
Facts:

In an action of damages for libel the pursuer complained of a letter written in criticism of certain licensing authorities. The letter, after referring to the case of a licence-holder in B who was convicted of she beening and fined £10, proceeded—“And I should like to ask if this was the first conviction against the same party.” Held (rev judgment of Lord Johnston) that the pursuer, a licence-holder in B, who had been once convicted of she beening and fined £10, and was the only licence-holder there who had been so convicted and fined, was entitled to an issue, whether the letter complained of represented that he had been more than once convicted of she beening.

Headnote:

This was an action of damages for libel at the instance of Alexander Lumsden, publican, Clifton Buildings, Station Road, Broxburn, against the West Lothian Printing and Publishing Company, Limited, 34 Hopetoun Street, Bathgate.

The pursuer averred—“(Cond. 1) The pursuer was until recently a wine and spirit merchant at Broxburn, and was licensee of the Central Bar there from 1900 to 1904. The defenders are the printers and publishers of the West Lothian Courier, which is published, inter alia, in the Broxburn district.… (Cond. 3) In or about June 1904 the pursuer was convicted of she beening by the Justice of Peace Court at Linlithgow and fined £10. The offence which the pursuer committed was supplying a regular customer with whisky from his house on a
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Sunday, and was not of a serious character, and was not so regarded by the Justices of the Peace. Thereafter the pursuer sold his business in Broxburn.… The pursuer has not since been convicted of or charged with any offence against the licensing laws. (Cond. 4) Early in February 1905 the Justice of Peace Court found it necessary to forfeit the licence of the Broxburn Gothenburg Public-House, Shortly thereafter, on 10th February 1905, the West Lothian Courier contained the following letter to the editor:—‘Forfeiture of the Gothenburg Licence—Sir, The forfeiture of this licence has aroused great surprise in the district, and little wonder when we consider that the conviction took place without a defence.… Again, I should like to ask if authorities are determined to be so rigorous, why, after convicting another licence-holder in Broxburn of she beening and fining him £10, they did not think it necessary to withdraw his licence? Surely she beening was more heinous in the sight of the law; and I should like to ask if this was the first conviction against the same party.… I am, &c., Fairplay.’ The defenders have been asked to disclose the name of the writer of this letter and have refused. (Cond. 5) The passage in the above letter relative to she beening is written of and concerning the pursuer. It is made quite irrelevantly to the subject under discussion, and is false, calumnious, and malicious. In particular, the passage represents falsely that the pursuer—who is the only person ever convicted of she beening at Broxburn—has been more than once convicted of she beening and other offences, and that the offence of which he was convicted was a very grave one, and it was so understood by those who read it.” …

The defender pleaded—“(1) The statements of the pursuer being irrelevant, the action should be dismissed. (2) The defenders not having slandered the pursuer, should be assoilzied.”

The pursuer proposed the following issue for the trial of the cause:—“Whether the statements in the letter printed in the schedule annexed hereto are of and concerning the pursuer, and falsely and calumniously represent that the pursuer had been more than once convicted of she beening, to the loss, injury, and damage of the pursuer. Damages laid at £500 sterling.”

On 23rd May 1905 the Lord Ordinary ( Johnston) disallowed the issue and dismissed the action.

The pursuer reclaimed, and argued—The implication was unavoidable that the party referred to at the close of the letter complained of had been convicted more than once. The pursuer was entitled to an issue— M'Kerchar v. Cameron, January 19, 1892, 19 R. 383, 29 S.L.R. 320; Carmichael v. Cowan, December 19, 1862, 1 Macph. 204.

Argued for the respondents—The letter complained of, which was written with reference to the conduct of the Magistrates, did not bear the innuendo put upon it by the pursuer.

At advising—

Judgment:

Lord Justice-Clerk—I have had considerable difficulty in making up my mind in this case. It is most undesirable that issues should be too readily allowed on statements made in newspapers' letters, nothing in themselves libellous, and which can only be brought into the category of malicious slanders by innuendo. But having had the advantage of consultation with your Lordships, I have come to the conclusion that in this case the Lord Ordinary has erred in refusing to allow an issue as in a relevant case.

The pursuer complains of a letter which appeared in the West Lothian Courier, in which a conviction against the pursuer for she beening is referred to, and comparisons made between the way in which the Licensing Court dealt with another case which came before them, and that of the pursuer. The writer then proceeds thus:—“And I should like to ask whether this was the first conviction against the same party?” This phrase the pursuer proposes to innuendo as meaning that there was a previous conviction against him which thus aggravated, his offence. It appears to me that such an innuendo might fairly be deduced from the words used, and that the pursuer has stated a relevant case to entitle him to an issue, it being for the jury to say whether on the evidence the innuendo has been established, and what damage, nominal or substantial, has been incurred.

I am therefore in favour of recalling the interlocutor of the Lord Ordinary and allowing the issue.

Lord Kyllachy—I should myself have been quite prepared to concur with the Lord Ordinary's judgment, but I feel the force of the view which your Lordships take, that the innuendo is not absolutely inadmissible, and that therefore the question is one rather for the jury than for the Court. I do not, therefore, dissent from the judgment proposed.

Lord Kincairney concurred.

Lord Stormonth Darling—The Lord Ordinary has disallowed this issue on the ground that the summons does not disclose any issuable matter. The anonymous letter to the defenders' newspaper on which the issue is founded is evidently not written in any spirit hostile to the liquor trade as a whole, for its purport is to complain of the forfeiture of a particular licence in the village of Broxburn. And I do not wonder if his Lordship regarded the pursuer's complaint of a charge that he had been more than once convicted of she beening, when he admits having been convicted once, as rather insubstantial. The charge is spelled out of a passage in the letter which asks if the admitted conviction was “the first conviction against the same party,” and the question is asked for the purpose of showing that, inasmuch as it was not followed by forfeiture, the punishment meted out to the other licence-holder was unduly severe.

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Still, whatever may have been the writer's motive, it was undoubtedly, though not perhaps very grossly, libellous to say or imply that the pursuer had been more than once convicted of she beening if such was not the fact. And I cannot say that the words used, though used in the form of putting a question, were not capable of the meaning that the pursuer had been convicted more than once.

That being so, I think the pursuer is entitled to have the verdict of a jury on the question whether the words were used in that sense or not. The innuendo is not an unreasonable or forced one, and it is only when an innuendo is unreasonable or forced that a Court is entitled to reject it.

I am therefore for recalling the Lord Ordinary's interlocutor and allowing the issue.

The Court recalled the interlocutor reclaimed against and approved of the issue proposed.

Counsel:

Counsel for the Pursuer and Reclaimer— G. Watt, K.C.— Spens. Agents— Bryson & Grant, S.S.C.

Counsel for the Defenders and Respondents— T. B. Morison. Agents— Macpherson & Mackay, S.S.C.
1905