Scottish Court of Session Decisions

On May 29, 1906, James M'Donald, shepherd, Lochgoilhead, brought an action against Neil M'Lachlan, farmer, Knock, Lochgair, Lochgilphead, in which he sought to recover £250 as solatium and damages for slander.

The defender had been charged in the Sheriff Court at Lochgilphead with failure to report two cases of sheep-scab amongst his sheep, an offence under the Diseases of Animals Act 1894 and the Sheep-Scab Order 1905, and had, when pleading guilty, handed a written statement to the Sheriff, who read it aloud and commented on it. The statement was as follows—

“Knock Farm.

Dear Sir,—In pleading guilty to the charge of sheep-scab as found on two hoggs, I may explain that I left the management of my sheep stock entirely in the hands of my shepherd, who did not inform me that there were any signs of scab amongst them. The stock was dipped in the usual way in November, and at that time there was not the slightest signs of scab or any other disease among them. It was with very great surprise I learned in February that two hoggs were affected with scab.

I may say that I am tenant of Knock Farm for the last twenty-two years, and this is the first time there has been any complaint made against me.

Neil M'Lachlan.”

The pursuer, who had been in the defender's service as his only shepherd, averred that the statement was false; that the outbreak had been reported to the defender on 4th December 1905, when he had himself inspected the sheep and satisfied himself of the fact; that in January 1906 the defender had assisted in dipping some sheep which were affected; and that, in addition, the defender had been informed by two adjoining farmers whose names were given. “(Cond. 4) The foresaid statement made by the defender to the Sheriff was of and concerning the pursuer. It was not only false but was calumnious, inasmuch as it charged the pursuer with failure to report to the defender the outbreak of scab, thereby branding the pursuer with neglect of his duties, and with unfitness and incompetence as a shepherd. Further, the said statement was made maliciously and without probable cause. It was known to the

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defender to be false, and was made by him recklessly and without regard to the consequences it involved to the character and reputation of the pursuer. The object of the defender in making said false and calumnious statement, it is believed and averred, was to endeavour as far as possible to exculpate himself from the charge made against him at the expense and to the detriment of the pursuer, his character and reputation as a practical and experienced shepherd.”

The pursuer further averred that reports of the proceedings in the Sheriff Court, referring to the said statement, had appeared in the issue of the Argyleshire Advertiser and Lochfyneside Echo for March 28, 1906, and in the issue of the Oban Times for March 31, 1906, both of which newspapers had a large circulation in the surrounding country, and that he had in consequence been deeply wounded in his feelings, and that his character and reputation as an experienced shepherd had been seriously injured, as well as his future prospects imperilled.

The defender, inter alia, pleaded—“(1) The pursuer's averments being irrelevant, the action should be dismissed, with expenses. (2) The defender in making the statement referred to was absolutely privileged in doing so, and the pursuer is not entitled on account of said statement to sue the present action.”

On November 7, 1906, the Lord Ordinary ( Dundas) allowed an issue in the following terms:—“It being admitted that on 27th March 1906, within the Sheriff Court at Lochgilphead, the defender, in pleading guilty to a charge of having contravened the Diseases of Animals Act 1894, in respect of failure to report sheep-scab among his stock, handed to the Sheriff who presided at the trial a written statement in the terms contained in the schedule hereto annexed—Whether the said statement is, in whole or in part, of and concerning the pursuer, and falsely, calumniously, and maliciously represents the pursuer to be a person neglectful of his duties and unfit and incompetent as a shepherd, to the loss, injury, and damage of the pursuer.”

Opinion.—“On 27th March 1906 the defender, an Argyllshire farmer, was charged in the Sheriff Court at Lochgilphead, at the instance of the County Council, with failure to report two cases of sheep scab among his stock. He was not professionally represented in Court. He pleaded guilty to the charge, and handed to the presiding Sheriff a written statement, the terms of which are fully printed in the record in this action. The statement contained, inter alia, an explanation that ‘I left the management of my sheep stock entirely in the hands of my shepherd, who did not inform me that there were any signs of scab amongst them.’ The pursuer of this action, James M'Donald, was in fact the defender's shepherd at the time in question. He avers that ‘the written statement so handed by the defender to the Sheriff was read aloud and commented on by the Sheriff in Court, and was thereafter handed by him to the Clerk of Court;’ and that a report of what took place in Court when the defender pleaded guilty and was fined appeared in the local newspapers, which ‘made reference to the statement made by the defender to the Sheriff.’ The present action is brought by the pursuer against his then employer, the defender, for damages for slander, which he assesses at £250.

The first question is whether the statement made by the defender to the Sheriff imports a slander upon the pursuer. The innuendo upon record is that ‘it charged the pursuer with failure to report to the defender the outbreak of scab, thereby branding the pursuer with neglect of his duties and with unfitness and incompetence as a shepherd.’ I have had doubts upon this point. The innuendo seems to me to involve some strain upon the language of the defender's statement. But I think that, looking to the pursuer's whole averments, the innuendo is one which might not unreasonably be extracted from the written statement.

It was next argued for the defender that the circumstances under which the statement was made afforded an absolute privilege to the defender. His counsel asserted that its contents were in pari casu with evidence given by the defender as a witness in causa. The absolute character of the privilege which the law accords to a witness is established beyond doubt or question, and its grounds are clearly explained by Lord Penzance in a well-known passage of his opinion in Dawkins v. Lord Rokeby, 7 E. and I. App. 744, which is quoted with approval by Lord President Inglis in Williamson, 1890, 17 R. 905. The defender's counsel referred to the recent case of Watson, 1905, 7 Fr. (H.L.) 109, where this privilege was extended to the case of statements made on precognition and not upon oath. But the statement here in question cannot, in my opinion, in any reasonable sense be said to have been given in evidence, or as that of a witness, or an intending witness; and, in my judgment, no absolute privilege attended the occasion of its production in the Sheriff Court.

But an alternative argument was submitted for the defender which I think requires attention. His counsel maintained that the occasion was at all events one importing a qualified if not an absolute privilege; and that, upon that hypothesis, the pursuer's record is radically defective as lacking any sufficient averment of malice upon the part of the defender. The pursuer's counsel argued that there is here disclosed no case of privilege at all; because the statement was not pertinent to any cause, the cause as such having ended when the plea of ‘guilty’ was tendered, and also because the cases decided in regard to civil proceedings are not applicable in relation to a criminal prosecution such as was here instituted against the defender in the Sheriff Court at Lochgilphead. Upon both these points my opinion is adverse to the pursuer. I see no ground for differentiation

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between civil and criminal proceedings upon this matter; and I think that the statement was made in the course of and was certainly pertinent to the disposal of the cause or matter in hand in the Sheriff Court. Its position seems to me to have been somewhat analogous to that of a minute or other judicial document brought into Court upon the instructions of a party litigant. It was, in my opinion, made in circumstances importing a qualified privilege. Malice must, I think, therefore be relevantly averred upon record. The pursuer alleges, and I must assume at this stage that his allegations are correct, that the statements of which he complains were false to the defender's own knowledge, and were made recklessly and without probable cause; and his counsel urged that these averments if proved would sufficiently import malice on his part. The defender's counsel referred to a somewhat peculiarly phrased passage in condescendence 4, where the pursuer says ‘the object of the defender in making said false and calumnious statement, it is believed and averred, was to endeavour as far as possible to exculpate himself from the charge made against him at the expense and to the detriment of the pursuer, his character and reputation, as a practical and experienced shepherd;’ and they submitted that the latter's own averment thus negatived the presence of that animus injuriandi upon the part of the defender which is the basis, and the necessary condition, of a successful action of damages for slander. This is, to my mind, too narrow and strict a reading of the pursuer's record. I think that the averment really means that the defender was anxious to save himself, and that with this end in view he defamed the pursuer. Of the decided cases in the books the one which is nearest to the present and throws most light upon the manner in which it ought to be dealt with is, in my opinion, that of Williamson, to which I have already alluded. In that case a solicitor read aloud, at a Justice of the Peace Licensing Court, a letter written by a client which contained language defamatory of one of the applicants. This applicant subsequently sued both the solicitor and the client for damages for slander. The action was held to be irrelevant quoad the former; but an issue was adjusted for trial as against the latter. I observe that the principal averment which was held to entitle the pursuer to that issue was to the effect that the defender in question knew that the statements were untrue, but ‘made them maliciously for the purpose of defaming pursuer and thus succeeding in opposing his application.’ In that case, as in the present, the pursuer averred that the defamatory statement made by the defender was made in order to secure a further end, in which malice was not necessarily involved at all, viz., in Williamson's case the refusal of a spirit licence in a district where the defender considered such a thing to be undesirable; in the present case the exculpation of the defender, or at all events the mitigation of his fine. Upon the whole matter I think that the pursuer's averments are such as to entitle him to the issue which he proposes, subject to the insertion of the words ‘and maliciously’ after the word ‘calumniously.’

The defender reclaimed, and argued—The statement complained of was not slanderous; it would not support the innuendo. No knowledge of the existence of the disease was imputed in it to the shepherd, and there was consequently no reflection on him. Even had the statement said that he knew, there would have been no reflection. Had it been alleged that he had failed to give notice to some authority to whom there was a duty on his part to give notice, it might have been different, but the failure alleged, if any, was only the omitting to inform his employer. The action was irrelevant, and should be dismissed.

Argued for the pursuer—The facts here were of importance. The pursuer averred that the statement made by the defender was false, and that the defender knew it was false. The statement further attributed to the pursuer a position of responsibility and a consequent duty, viz., the duty placed on “every person having in his possession or under his charge” an animal affected by sheep-scab to report it Diseases of Animals Act 1894 (57 and 58 Vict. cap. 57), section 4 (1) ( b) and 52—and stated that he had failed in that duty. The innuendo was therefore good, and the issue should be allowed.