Scottish Court of Session Decisions

On 21st March 1905 John Campbell, joiner, Donald Blair, grocer, and Peter M'Intyre, baker, all of Tarbert, raised an action of damages for slander against The Scottish Educational News Company, Limited, Edinburgh, concluding for £250 each. The case was heard before the Lord President and a jury, and the jury returned a verdict for the defenders, finding for them on the first issue, and finding it unnecessary to return a verdict on the other issues. The pursuers applied for and obtained a rule and the case now came before the Court on the rule.

The issues for the pursuers were in the following terms :—“It being admitted that the defenders published the article printed in the appendix hereto—(1) Whether the said article is of and concerning the pursuer …. and falsely and calumniously represents that the pursuers combined to secure the dismissal of Robert Ail'd from the post of teacher in the Tarbert School solely from motives of personal hostility to him, and not in the bona fide discharge of their duties as members of the School Board of Tarbert, to the loss, injury, and damage of the pursuer …. (2) Whether the said article is of and concerning the pursuer …. and falsely and calumniously represents that he had preferred and subsequently circulated what he knew to be a false charge of neglect of duty against the said Robert Aird as a pretext for dismissing him, to the loss, injury, and damage of the pursuer .…”

A counter issue on behalf of the defenders was also submitted in the following terms:— “(1) Whether in or about 1904 the pursuer … conceived feelings of personal hostility to the said Robert Aird. and whether in consequence thereof the said … in October 1904 preferred what he knew to be a false charge of neglect of duty against the said Robert Aird as a pretext for dismissing him from his office of headmaster, and did on said pretext, on or about 24th November, and in conjunction with the said … and … cause the said Robert Aird to be dismissed from said office.”

The important portion of the article in the Educational News, of which paper the defenders were proprietors, upon which the action was based ran as follows:—“… After years of a steady policy of building up a secondary department, in which evidently both the School Board and the headmaster took a deep interest and a proper pride, a change of policy occurred on the part of the School Board coincident with the return of a new set of members to that body. The staff was cut down to such an extent that the efficiency of the work was maintained only by the special efforts of the headmaster and staff. H.M. Inspector frankly pointed out the folly of the policy (dictated purely by motives of economy); the County Council withdrew its grants; the intelligent and educated minority of the School Board never ceased to protest. Yet all to no effect. It is not often that what may, without offence, be styled the ‘working-class’ element in the community is so short-sighted as to cut off deliberately the one agency by which their children may hope to make good the difficulties and drawbacks which handicap them in their onward and upward struggle for existence. Yet this is what we find in Tarbert. The teacher had warmly identified himself with the success of the higher work, and did not hesitate to express his regret at seeing the work, so carefully fostered for years, so ruthlessly demolished in an hour. The consequence to him has been serious. The opposition of the majority of the School Board to the policy with which he was identified developed into personal hostility to himself. ‘We must get rid of this pestilent fellow.’ But the small cunning which is never very far away from the mainsprings which move certain types of mind at once suggested that to dismiss a teacher for such an alleged reason would be to court the public condemnation which it would assuredly call forth. Some other ostensible reason must therefore be found to put before the public as the reason for his dismissal. This was done in Mr Aird's case by making a charge against him in connection with his absence from school on the afternoon of Friday the 21st October 1904, an absence due to temporary indisposition as is conclusively proved by the testimony of competent witnesses, even as the baseless charge is refuted as conclusively by the same testimony. But one more degree of cunning is here introduced. It is not necessary to allege ‘cause’ in dismissing a teacher. The ipse dixit of a bare majority is sufficient so long as the other obligatory processes of the Mundella Act are duly observed. Therefore the Tarbert School Board ‘dismisses’— as it believes—Mr Aird by legal process, and gives no reason for its action. That of course does not hinder the unofficial and subterranean diffusion of the story of the alleged cause of the School Board's action, and the story has been spread abroad in that amorphous and indefinite form which is warranted and expected to do the most harm to Mr Aird, and at the same time safeguard his traducers. …”

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The Lord President's charge to the jury at the trial was as follows:—“Gentlemen of the Jury—This case has been conducted with very great ability, and in a certain way with very great moderation, by the learned gentlemen on both sides of the bar. It is a case of a kind that has been committed by the law to the determination of a jury, and not to a judge, and accordingly I am afraid that I cannot relieve you of the responsibility that is put upon you of deciding these matters, nor even of telling you how I think you ought to decide them. But what I can do for you, and what I hope to do, is to bring your minds precisely to the question that you have got to decide. In the course of the very able speech to which you have just listened, there is I think only one remark which I must rather caution you against, and that is the remark with which it concluded. It may be perfectly true that the effect of your verdict may be rather more far reaching than the confines of this case, and that its effect may be on the one side or on the other as the learned counsel put it. But, gentlemen, you have not got anything to do with that. You have not got to think what the effect of your verdict is going to be elsewhere. You have taken an oath to do justice in this case between these two parties, and you have got to do that without fear or favour, reflecting that, after all, the consequences of that do not depend on you, you having done your duty.

“The action as you know very well is an action brought against a newspaper by three private individuals, members of this School Board, who say that newspaper has slandered them. Gentlemen, it is certainly the case that those who go into public life in this country must not hope to indulge in the luxury of a very thin skin. Public life as we like it to be conducted, and as most of us believe it is on the whole for the public benefit that it should be conducted, subjects those who take public positions to very free criticism. And those of us who have been in public life for many years would really I think scarcely ever have been out of court if we had always rushed into the law courts whenever we saw a criticism which we thought was somewhat intemperate and unjust. But at the same time, while that is so, it is undoubtedly the case that there is a line not very easy to define and yet I think commending itself to any man of common sense—there is a line of criticism which must not be crossed. You must confine your criticism to the man's public actions. I do not say that you may not impute motives to him. I think it is a better style of criticism which does not impute motives, whether in the political or any other world. But as long as his motives are kept to purely public actions, then I cannot say that that is a thing which a person can come to a jury and attack. But when you go further, and under the guise of attacking a man's public life you really attack his private character, and state or insinuate that he has been guilty of a disgraceful action in his private character, and that by means of that disgraceful action he has done certain things in public life, then it is a libel, it is a slander, and unless it can be justified upon the truth of it, an action of damages will lie, just as if the whole matter had happened in the domain of private life, and there had not been anything in respect of public life at all. I do not think I need comment further upon these matters, because I think it is a matter really of common sense. It is a matter I have no doubt that is absolutely present to all of your minds as men who read newspapers and appreciate the advantages of a free press, and who see that a free press must not be debased into a licence for attacking private people.

Let us now apply this general principle to the particular case in question. Now, in the case in question there is tabled before you a certain article. The issue on which it is put before you puts this question of fact—‘Whether the said article is of and concerning the pursuer.’ No doubt there is a separate issue—of course you have three of them; but as I have already said I do not think it is probably necessary to have two issues at all; and I think for all purposes we may be content with the second. I do not think there is really any difference between them. I think your verdict would naturally be the same on the first or the second as it would be on both—either for the pursuer or the defender. But it is easier to explain my remarks if you confine attention to the second issue, ‘Whether the said article is of and concerning the pursuer John Campbell, and represents that he had preferred and subsequently circulated what he knew to be a false charge of neglect of duty against the said Robert Aird as a pretext for dismissing him.’ Now, gentlemen, I do not think you will have any difficulty in feeling that that is a good innuendo as the term is, that is to say, that that is a charge of having done something which oversteps the bound of public criticism. That is to say, in other words, that if you do falsely and calumniously represent that somebody else has preferred and subsequently circulated a false charge against a man as a pretext for dismissing him, and has dismissed him, you do go beyond public criticism, and you allege that the person has done something which is disgraceful in itself, and doubly disgraceful when it is used as a cloak to doing something which is not consistent with public duty.

I do not think you will have any difficulty so far. That really is not a question for you at all, because unless the Court had originally thought it a good innuendo, that is to say, a slanderous innuendo, they would not have laid the matter before you at all. The next question really, which is the first question for you, is whether that is to be truly carved out of the article. And this, as Mr Ure said, does not mean whether by any possible twisting of the words of the article you could hold that such a meaning is possible. But it means—What do you as men of ordinary common sense think that article means? Now, in a case of this

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sort, where it deals with matters with which you are all quite familiar—I mean this question of school board and teacher, and so on—the real point is, that you are the best judges of that yourselves. I mean that although it is quite customary and common for persons, for pursuers before the Court, to bring witnesses to say, ‘Well I read the article and I thought it meant so and so’—in a case of this kind I do not think that so much matters as what your own view of the reading of the article as men of common sense would be. The point really on which I think your judgment on the matter ought to turn—and I tell you it is a question for you and not for me—would be this. Supposing you had been for your summer holidays in Tarbert, and that you had got a copy of this Educational News, and read that article about people all strangers to you—only names, so far as you are concerned—still, if you had nothing better to do and read the article, what sense would you have taken out of it? Would you have taken or not taken the sense put to you in this issue? Would you have said—‘Well, I do not know who this John Campbell is; I never heard of him before; but I see this newspaper writer says that John Campbell circulated what he knew to be a false charge of neglect of duty against Robert Aird, a schoolmaster, as a pretext for dismissing him, and on the top of that he did dismiss him.’ That is the test I put to you. Of course here one or two people were put into the witness box to say that this was the meaning of the article, and they said ‘Yes,’ and I am bound to say there was not much cross-examination put to them. But after all I am bound to say that I do not attribute much to that evidence one way or the other. There are some cases where you would have had to have evidence of a technical character, or with regard to a foreign language, or terms of art, which the ordinary juryman might have been expected not to know about, and then it would have been quite good evidence in order to put you in what might be called an intelligent frame of mind. But this matter is dealing with everyday life, in which you have as intelligent a mind as the witnesses. And it is just for that reason that a case of this sort is given to a jury instead of to a judge. It is not that we are not men of the world too, and do not understand, but it is because you do not want to get—and that is the criterion of it—so much what I might call the trained mind to say what is the meaning of it. But the point is, What does the man in the street, to use an ordinary expression, what does he think of it? Because it depends on what the man in the street thinks whether it is a libel or not. For it is the man in the street, the men among whom the circulation of a newspaper goes, who are the judges as to whether it is fair ordinary criticism in this article, or if there is libel. Therefore the first question in this case—and you cannot stir a foot until you have solved it yea or nay—is taking this article and reading it, of course by those passages which I do not need to comment upon—they have been commented upon again and again to you—reading that article as men of common sense, do you take from it the sting, the innuendo as it is called technically, that the article represents that they had preferred and subsequently circulated what they knew to be a false charge of neglect of duty against Mr Aird as a pretext for dismissing him, and dismissed him?

“Now, of course, if you cannot take that out of it, you must find for the defenders on the first issue, and of course there is an end of the case. You do not need to go any further. But if, on the other hand, you think that the meaning of the article is that, then we have to go on to the second portion of the case. You will then have found that the article is ‘of and concerning the pursuer,’ and represents that he preferred, and so on. But there are two words you will have noticed I left out—‘falsely and calumniously.’ The law upon that matter is this, that when a statement is libellous or scandalous, the law always presumes it is false unless the other person can prove it is true. And therefore if you have considered that this is a slanderous statement, as I have said, then you start with the presumption that it is a false statement, unless the other person can show you that it is not false. And that is the meaning of the counter issue, and that is why the counter issue goes, you will see, exactly on the lines of the issue. The counter issue to which I now ask your attention is this—‘Whether in or about 1904 the pursuer John Campbell conceived feelings of personal hostility to the said Robert Aird, and whether in consequence thereof the said John Campbell in October 1904 preferred what he knew to be a false charge of neglect of duty against the said Robert Aird as a pretext for dismissing him from his office of headmaster.’ You will notice that is exactly an echo of the words that are in the other issue. It would not have been, for instance, a counter issue to have put—‘Whether on such and such a date Mr Aird was drunk and was unfit for his duties.’ That would not have come up to the sting—the innuendo. Accordingly, if you come to the conclusion that your verdict ought to be for the pursuer on the first issue, you have then got to start with the idea that the thing is false, unless the other party the defender proves that it is true. The onus or weight of that, as lawyers say, is on the defender. It is for him to show. The question you meet on the second issue depends of course upon a question of fact, and it is with regard to the elucidation of that fact that we have had these three long days of evidence, not too long in this sense, that I do not think any time has been wasted, and it is not for you or me to complain of our duty.…

I hope I have made it clear that you have two steps to consider. The first is whether that innuendo, which as I say I do not think there is any doubt is a good innuendo, of charging something more than true criticism—whether that is to be gathered out of the article. If it is not, the case is at an end, and you will find a verdict

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for the defenders. But if it is to be fairly gathered out of the article, then we must take it that it is a false and calumnious charge, unless the defenders to your satisfaction make you say yea to the question in the counter issue, and not to any other. There are two issues on one certain point. If you give the first issue in favour of the pursuers, you will give the second in favour of the pursuers also.”

On the return of the jury, when the foreman had intimated that they found for the defenders “on the ground that there was no libel in the article complained of,” counsel for the pursuers asked for a verdict on the counter issue. The foreman, however, said the jury thought that their verdict would cover everything, and the Lord President said they were quite right, it did so, and there was nothing more to be said. A verdict finding for the defenders on the first issue and finding it unnecessary to return a verdict on the other issues was thereafter, with the Lord President's approval, recorded.

Argued for the defenders—A new trial should not be granted. The Court would not, save as to whether the words used applied to the pursuer or did not, disturb the verdict of a jury on a question of slander, and certainly not where the question involved public conduct. The innuendo, held possible by the Court, having gone to a jury, and the jury having found as ordinary readers that it was not in the words used, there was no room for a second jury considering it. The article complained of was fair criticism of the pursuers in their public capacity and was not slanderous. The jury had so found, and it was for them to decide— Sexton v. Ritchie & Co., March 18, 1890, 17 R. 680, 27 S.L.R. 536, 18 R. (H.L.) 20, 28 S.L.R. 945; Waddell v.Roxburgh, June 9, 1894, 21 R. 883, 31 S.L.R. 721. There were only two cases in Scotland in which the Court had set aside a verdict in cases of slander, viz., Smith v. Gentle, January 31, 1844, 6 D. 565; and Ross v. M'Kittrick, December 17, 1886, 14 R. 255, 24 S.L.R. 190. In England there was no case where the verdict had been set aside where it was left to the jury to say whether the article in question was or was not a libel—Odgers on Slander (4th ed.) p. 105; Australian Newspaper Company v. Bennett, [1894] AC 284. On the evidence the verdict was right.

Argued for pursuers —The case of Ross v. M'Kittrick showed that the Court would set aside a verdict in a slander action if contrary to evidence, just as in any other kind of action. If the charge here was baseless (as the facts proved showed) the jury were not entitled to find that there was no libel. The article charged the pursuers with inventing a reason which they knew to be false. The jury could not reasonably attribute any other meaning to the article. That being so the pursuers had been slandered. There was no such rule as the defenders contended for in regard to verdicts in slander cases. The verdict here was clearly contrary to evidence and must be set aside.

At advising—