Scottish Court of Session Decisions

On May 9, 1906, David Brown, 18 Montague Street, Edinburgh, brought an action to recover damages against the Lord Provost, Magistrates, and Town Council of the City of Edinburgh, and Roderick Ross, Chief-Constable in the Edinburgh City Police, 21 George Square, Edinburgh. The summons contained a conclusion for £3000 as damages for wrongous dismissal, against the Lord Provost, Magistrates, and Town Council, alternatively against the Chief-Constable, and alternatively against them both conjointly and severally or severally, in such proportions as the Court should fix, and, lastly, it contained a conclusion against the Chief-Constable for £2000 as damages for slander.

The facts of the case are narrated by the Lord Ordinary ( Johnston) in his opinion ( infra).

The pursuer, who was summarily dismissed on 21st March 1906 for circulating false and slanderous statements regarding the Chief-Constable—he admitted having referred to a current rumour when in conversation with G. W. Taylor, clothier in George IV Bridge, some years previous—based his claim on the ground of slander on the following averment—“(Cond. 8) Upon the said 21st of March the defender Ross, in his own room, constituted himself a species of tribunal, making himself both prosecutor and judge, the pursuer being the accused, in regard to said rumour about himself, but said proceedings had no relation to the police force or discipline therein. The pursuer attended this tribunal as ordered. The defender Ross read over a paper containing a charge of circulating false and slanderous statements about himself, and asked, ‘Are you guilty or not?’ The pursuer said he had already explained the circumstances. The defender Ross interposed in an overbearing manner and said, ‘I'll see what you have to say afterwards; are you guilty or not? You must be the one or the other.’ The pursuer then pleaded not guilty. Witnesses were called in and examined by the defender Ross, who conducted the proceedings oppressively and with malice against the pursuer. Taylor was examined and corroborated what the pursuer had said. Constable Strachan was called and admitted telling the pursuer of the rumour, and for merely repeating it was then and there sentenced by the defender Ross to a reduction of 4s. weekly. Two other witnesses were examined by the defender Ross, who precognosced such witnesses before he (so to speak) put them into the box and questioned them before himself. The defender Ross got gradually more and more malicious towards the pursuer, and after summing up the results of the investigation made by himself, he announced that the pursuer was guilty and that he did not intend to put off long time with him, and proceeded to pronounce sentence. He said ‘I find you guilty. You are a danger to me, a danger to the force, and I dismiss you,’ or words to that effect. Then after a pause, he added, ‘as a disgrace to the force.’ By this Ross meant that the pursuer was a person who ought to be shunned by his fellows as a danger to them, and that he was a disgrace to his profession and unfit to be a member of it. Said words were addressed by Ross to the pursuer, they were of and concerning the pursuer, and they were falsely, calumniously, and maliciously and without any cause uttered by Ross in the hearing and presence of the said Deputy Chief-Constable Chisholm, the said G. W. Taylor, Sergeant William Anderson, Constable Alexander Strachan, Constable George Renton, and ex-Superintendent James Minty. … Denied that the defender Ross was actuated by any opinion of what discipline in the force required, or by any

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other motive than revenge. Denied that the pursuer was guilty of any offence. Said rumour had no bearing upon discipline, and in point of fact had not affected discipline in any way as the defender Ross well knew. He used discipline as a pretext for revenge.”

The pursuer, inter alia, pleaded—“(1) The pursuer having been wrongfully, maliciously, and without any cause dismissed from his employment in the Edinburgh City Police, he is entitled to decree against one or other of the defenders as craved. (2) The defender Ross having acted wrongfully and maliciously and without any cause in dismissing the pursuer from his position in the Edinburgh City Police, the pursuer is entitled to decree as craved against him. (3) Alternatively. The pursuer having been wrongfully dismissed by the defender Ross, acting as a servant of the other defenders within the scope of the authority conferred upon him by or through them, they are liable to the pursuer in reparation, and the pursuer is entitled to decree against them. (4) The defender Ross having slandered the pursuer, the pursuer is entitled to reparation, and decree ought to be granted as concluded for in the fourth conclusion of the summons.”

The defenders the Magistrates of Edinburgh, inter alia, pleaded—“(2) These defenders should be assoilzied, in respect that the defender Ross is not their servant, and that they are not responsible for his actings.”

The defender Ross, inter alia, pleaded—“(2) This defender having dismissed the pursuer in the exercise of a discretion conferred and of a duty laid upon him, by statute, he should be assoilzied with expenses. (3) The defender not having slandered the pursuer, he should be assoilzied with expenses. (4) The actings of the defender and the conversations libelled having taken place on privileged occasions, and without malice and in discharge of defender's duty, he should be assoilzied with expenses.”

On July 24th 1906 the Lord Ordinary ( Johnston) pronounced this interlocutor—“Finds that the pursuer has stated no relevant case against the Lord Provost, Magistrates, and Town Council of Edinburgh: Therefore dismisses the action against the said defenders, and decerns: Finds the said defenders entitled to expenses, allows an account to be given in, and remits the same to the Auditor to tax and report …: Further, holds the issue as adjusted and settled; approves of the same as now authenticated accordingly, and appoints the same to be the issue for the trial of the cause against the defender Roderick Ross.” [The issue allowed was—“Whether on or about 21st March 1906 the pursuer was wrongfully and maliciously dismissed from his employment in the Edinburgh Police Force by the defender Roderick Ross, to the loss, injury, and damage of the pursuer?”

Opinion.—“In this case David Brown, lately lieutenant in the Edinburgh Police, sues the Lord Provost, Magistrates, and Town Council of the City, and Roderick Ross, Chief-Constable of the City Police, for damages for wrongous dismissal from his post of lieutenant of police, and separatim the defender Ross for damages for slander uttered in connection with such dismissal.

“In connection with the adjustment of issues three questions have been raised—First, Does any action lie against the Corporation? Second, Is the defender Ross protected by the statutory provision under which he acted? and Third, Can an additional statement proposed to be added by Ross as an amendment of record be allowed? These questions must be determined before I can proceed to the adjustment of issues.

The circumstances of the case are peculiar. The pursuer joined the Edinburgh Police in 1885 as constable, and between that date and March 1906 he rose with, I think, unusual rapidity through the ranks of sergeant, inspector, and detective-inspector to that of lieutenant of police, to which he was promoted on 16th March 1906. Five days afterwards, viz., on 21st March 1906, he was summarily dismissed from the force. As his pay in the rank which he had gained was £160 per annum, with the prospect of a substantial retiring allowance, and as he was interested in various police funds, it follows that the loss to which he was subjected by his summary dismissal is very serious. His career is broken. He cannot get employment in the line to which he has devoted himself through life, and at the age of something over forty he will find it difficult to make a fresh start. On the other hand, his dismissal was based on the offence of circulating a scandalous and untruthful statement reflecting on the moral character of the Chief-Constable, conduct which, if brought home to him, may be fairly said to be subversive of discipline. The case therefore from whichever side it is viewed is a most serious one, and deserved the anxious and able argument which it received.

In disposing of the preliminary questions which have been raised I desire to be particularly careful not to prejudice the character of either of the principal parties to it. But I am obliged nevertheless to deal with the averments as they appear on record.

Briefly, the circumstances as disclosed on the pursuer's condescendence are these — Certain rumours affecting the character of the defender Ross are alleged to have been current in the police force and outside of it from two to four years ago, and the pursuer, though regarding them as he says as idle gossip, on a particular occasion, at least a year preceding his dismissal, admits that he spoke of them as such gossip to a certain G. W. Taylor, a mutual friend of his own and the defender Ross. The conversation was, as the pursuer alleges, after that interval of time reported by Taylor to the defender Ross, and he further avers that Ross, who was quite aware of said rumours when they were prevalent, had asked Taylor

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to report to him the name of any constable who might repeat the said rumours in his hearing, so that, instead of vindicating his character in the usual way, the defender Ross might wreak his private vengeance on the persons under his control who might be detected discussing him or said rumours. Taylor having reported the above conversation to the defender Ross, the pursuer alleges that he was on 19th March 1906 called into Ross's room in the Police Chambers in Edinburgh and charged with what had thus come to Ross's knowledge. I do not go into the detail of what further is alleged to have occurred on the 19th, 20th, and 21st March, but it is admitted that on the latter date Ross, after certain proceedings in which he acted alone in his position and on his authority as Chief Constable, summarily dismissed the pursuer. The police record, published in ordinary course, of the occurrence is as follows:— ‘21st March 1906.—Lieutenant David Brown dismissed the service for that he did on certain dates between three and four years ago, and the summer of 1905, circulate a scandalous and untruthful statement severely reflecting on the moral character of the Chief Constable.’

I think it right to state that in considering the record with reference to the various points which have to be decided, it has weighed with me that the offence charged was separated from the punishment inflicted by such a lapse of time, and the weight of this consideration is not diminished by the statement of the defender Ross that on said 19th March 1906 it came to his knowledge that the pursuer had while on duty as an inspector in the police force circulated statements similar in character but much more serious in degree, regarding him, from that admitted by the pursuer, and which circulation, if it occurred, would from the context appear to have taken place so far back as the spring of 1904.

The statements on both sides are most unfortunately prolix, and I do not think that any advantage would accrue from further analysing them.

The first question to which I have to address myself is, assuming that the pursuer was wrongfully dismissed by the defender Ross as chief-constable, does any action of damages therefor lie against the Corporation? I use that term in brief for the Lord Provost, Magistrates, and Council, not in their proper character as the Corporation of the City, but as police authority. The earlier Edinburgh Police Acts were superseded by the Edinburgh Municipal and Police Act 1879, and that Act is still in force, except so far as modified by the amending Act of 1893. By sec. 34, sub-sec. 1, of the Act of 1893 it is enacted that the Magistrates and Council shall from time to time appoint a chief-constable, who shall not be removable by the Magistrates and Council unless with the joint approbation of the Lord Provost and of the Sheriff, or in the case of their differing in opinion of the Secretary for Scotland. The Chief Constable therefore holds an exceptional position. He is not appointed ad vitam aut culpam, nor is he appointed at the pleasure of the Magistrates and Council. He occupies an intermediate position, if not of independence, at least of protected employment. And the reason and propriety of this is not far to seek when the history and character of his office is considered. Now the police authority of the city are bound by statute to provide and maintain the city police force, though with the assistance of the Government subsidy. But by sec. 55 of the Act of 1879 it is enacted that, when and so often as the Magistrates and Council shall fix the numbers of the officers of police in their various grades which they shall judge necessary for the policing of the city, ‘the Chief-Constable is hereby authorised and empowered to appoint proper persons for such offices, to direct their distribution or otherwise, and also to suspend or remove such constables appointed by him at pleasure.’ I am not at present concerned with the malicious dismissal of a constable by the Chief-Constable. Even assuming him to be the representative or employee of the Corporation, what he does maliciously he does outwith the scope of his duty, and his employers are not responsible. But assume that without malice he has wrongfully dismissed a constable, does action lie against the Corporation? I answer this question in the negative. It is true that the Chief-Constable is employed by the Corporation in the sense that he is appointed by them and receives his remuneration through them and largely from them, i.e., from the police rate, which they are authorised to levy and administer. It is true also that he is in a sense under their control, but not as an ordinary servant. Their control is limited, and limited by statute consistently with the necessities of the situation. The Chief-Constable there fore occupies a position not only of protected employment but of statutory though it may be limited independence, and in relation to the constables subject to his authority that independence is very wide, and in the matter of their appointment, suspension, or removal, is, as it appears to me, absolute. And the reason of this also is not far to seek in the necessities of the situation. For his action, where he is thus independent, I cannot think that the Corporation, even if to certain effects they are his employers, can be held responsible. I think that the case is entirely distinguishable from those in which they have a statutory duty, which duty they can only perform through officials or servants employed by them, and which duty, by reason of the negligence of such employees, they fail to perform, as in the case of Virtue v. Police Commissioners of Alloa, 1 R. 285.

I therefore come without hesitation to the conclusion that no action lies in the circumstances of the present case against the Corporation of the City of Edinburgh as police authority.

In the second place, is the defender Ross protected by the statutory authority to which I have referred? He maintains

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that he is by statute entitled to dismiss a constable at pleasure, and that all inquiry is precluded into the reason for such dismissal. I cannot think that this is so. It is true he need give no reason. He may commit most grievous error of judgment. He may really act from the most frivolous caprice. But if he is acting within the scope of his duty and is not actuated by personal motives, the constable removed cannot challenge his action or inquire into his reasons. But all this does not entitle him to remove a constable outwith the scope of his duty, and that he does the moment, actuated by personal motives, he removes such constable for his own private ends. While the statute precludes all inquiry into the reasons, it does not in my opinion preclude inquiry into the motives of dismissal. If these motives are malicious there is no protection, because the removal is not within but without the scope of the Chief-Constable's duty. This consideration may affect the averments necessary to justify an issue, and may affect the form of issue, but if the averments properly raise a question of malicious dismissal, then I think the statutory enactment affords no protection.

But do the averments properly raise a question of malicious dismissal? It is said that it is not sufficient to aver malice but that the pursuer must relevantly aver circumstances from which malice may be inferred. I quite agree with this as a general proposition. But then it must be added that the res gestœ of the act or libel complained of are themselves circumstances, and often of themselves sufficient circumstances, from which to infer malice. I confess I think that here if the pursuer's version of them is correct, and I am only judging on relevancy. that his averments are so. The personal interest of the defender Ross, the lapse of time between the offence and the punishment, the character of the inquiry into the pursuer's conduct, and the summariness of his dismissal, are themselves circumstances from which a jury might infer a malicious motive, and when pieced together by the other averments of the pursuer the demands of relevancy are, I think, satisfied.

In the third place, a question of some difficulty remains as to whether a certain amendment proposed by the defender Ross can be allowed. … [ His Lordship disallowed the amendment as proposed.] …

Having now disposed of these preliminary points, it remains to consider the issues. In the first place, it follows from what I have already said that malice must be put in issue. In the next place, can a separate issue on slander be allowed against the defender Ross. This is a somewhat complicated question. The alleged slander is part of the res gestœ of the dismissal, and if the dismissal was both wrongful and malicious there could be no separate issue on slander so as to involve a second and separate award of damages. But assume that the dismissal was not malicious, but only wrongful, then for mere wrongful dismissal the defender Ross is protected by statute. But the statutory protection does not entitle him to accompany the wrongful dismissal with slanderous statements, and therefore I think that a separate case of slander does arise, which must be considered by itself, if the words alleged to have been used involve a slanderous imputation. But then it must be remembered that the defender Ross was in a position of privilege when they were uttered, and therefore the question of malice again arises, and it is hardly conceivable that there should be malicious slander if there was not malicious dismissal. But though theoretically the pursuer might be entitled to a separate issue contingent upon the jury finding for the defender Ross on the first issue, I think, nevertheless, that I am relieved from dealing with this somewhat academic question by the fact that I do not find the words alleged to have been used to be anything more than appropriate to the circumstances of the sentence which was being pronounced, and therefore not really separable from it.

The issues as they stand cannot be granted. They must be altered so as to eliminate the Corporation, and to put malice in issue as regards the defender Ross in the question of dismissal. The issue on slander will be disallowed.

Before dealing with the issues I should have said that I was moved to send this case to proof before myself as likely to involve questions of difficulty requiring time and discrimination at the trial. I think that this will very likely be the case. But I do not on that ground think that I should be justified, against the pursuer's opposition, in withdrawing this case from the jury court. While much of it might be better disposed of by a judge sitting alone, there are other parts of it eminently appropriate to a jury.”

The defender (Ross) reclaimed, and argued — Under the statute which formed the measure of the pursuer's contract of service, viz.,. the Edinburgh Municipal and Police Act 1879, section 55, the dismissal of the pursuer was within the scope of the defender's statutory right and duty, and he was free from liability in consequence, nor would any action lie against him— Mitchell v. Smith, January 26, 1836, 14 S. 358; Fosdick v. North British Railway Company, December 7, 1850, 13 D. 281; Innes v. Adamson, October 25, 1889, 17 R. 11, 27 S.L.R. 26; Robson v. School Board of Hawick, January 19, 1900, 2 F. 411, Lord M'Laren at p. 418, 37 S.L.R. 306; Finlay v. The Royal Liver Friendly Society, October 25, 1901, 4 F. 34, Lord Young at p. 37, 39 S.L.R. 23. The defender's discretion as to dismissal was absolute, and he had to table no reasons for dismissals— Commercial Bank v. Pollock's Trustees, June 12, 1829, 3 W. & S. 430. The defender's act being lawful, the motive on which it proceeded was unimportant and did not demand inquiry— Macfarlane v. Mochrum School Board and Others, November 9, 1875, 3 R. 88, Lord President Inglis at p. 101, 13 S.L.R. 49; Allen v. Flood, L.R., [1898] AC 1, Lord Watson at p. 94, and Lord Herschell at p.

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118. The present case, an action for damages, was distinguished from Morrison v. Abernethy School Board, July 3, 1876, 3 R. 945, 13 S.L.R. 611—which was an action to recover a sum of money in lieu of reasonable notice of dismissal; and from Marshall v. School Board of Ardrossan, December 10, 1879, 7 R. 359, 17 S.L.R. 242, where what was sued for was a teacher's pension bestowed by statute but oppressively withheld. The defender in dismissing the pursuer was performing an act of administration under statute, and so was a fortiori entitled to an absolute protection, according to the principles decided in M'Ewan v. Watson, July 28, 1905, 7 F. (H.L.) 109, 42 S.L.R. 837, and extended by Campbell v. Cochrane, December 7, 1905, 8 F. 201, 43 S.L.R. 221. The Lord Ordinary was in error in putting malice in issue, since it did not affect this case of dismissal, but if it were inserted want of probable cause should be added. Further, no relevant case of slander was made on record, having regard to the circumstances in which the statements alleged to be slanderous were made, of which these statements formed a part, viz., a privileged occasion— Hassan v. Paterson, June 26, 1885, 12 R. 1164, 22 S.L.R. 775; Malcolm v. Duncan, March 7, 1897, 24 R. 747, 34 S.L.R. 625—nor were facts and circumstances averred to infer malice, and the issue therefore should be disallowed— Innes v. Adamson, ut supra; Beaton v. Ivory, July 19, 1887, 14 R 1057, 24 S.L.R. 744; Campbell v. Cochrane, ut supra, Lord Dunedin at 8 F. 212; Farrell v. Boyd, October 20, 1906, 14 S.L.T. 334.

Argued for the pursuer and respondent—The defender Ross had acted outwith his statutory duties and rights, actuated by private motives of revenge, and facts and circumstances being relevantly put on record to infer malice and oppression, inferring mala fides on his part, an issue should be allowed— Marshall v. The School Board of Ardrossan, ut supra, Lord Deas at 7 R. 374, and Lord Mure at 375; Morison v. Glenshiel School Board, May 28, 1875, 2 R. 715, Lord Neaves at 725 and Lord Ormidale at 727. It was merely owing to lack of specification that the action was dismissed in Macfarlane v. Mochrum School Board, ut supra. The case of Commercial Bank v. Pollock's Trustees, ut supra, had no bearing, since here the defender was acting outwith the scope of his duty, and the only question gone into in that case was whether two-thirds of the directors had ordered the dismissal. “At pleasure” did not mean that dismissal was to take effect at the caprice of the defender and when the discipline of the force was not endangered. If there were averments of oppression and facts to infer malice, then inquiry should be allowed— Willis v. Childe, (1850) 13 Beav. 117, for the statutory right to dismiss at pleasure governing the contract of service must be exercised without malice— Doyle v. Wurtzburg, 32 N.S. L.R. 107, reported in Smith on Master and Servant, 6th ed. at p. 146. Further, the pursuer was entitled to an issue against the Magistrates, whose servant Ross was and for whom they were responsible—Edinburgh Improvement (Amendment) Act 1893, sec. 34 (1); Edinburgh Municipal and Police Act 1879, secs. 11 and 33. The relations of the two defenders were analogous to those of their predecessors in both offices, which had been judicially considered and by that consideration the action against the Magistrates lay— Mitchell v. Stuart, February 1, 1838, 16 S. 409, by Lord Gillies at p. 416—and the master was responsible for such conduct on the part of his servant as was here alleged — Hanlon v. Glasgow & South-Western Railway Company, February 14, 1899, 1 F. 559, 36 S.L.R. 412; and Wood v. North British Railway Company, February 14, 1899, 1 F. 562, 36 S.L.R. 407, were in point. In any case, the pursuer should have an issue on slander. The defender was not in judicial office nor was he privileged; moreover, facts and circumstances were averred sufficient to infer malice— Laidlaw v. Gunn, January 31, 1890, 17 R. 394, 27 S.L.R. 317; Innes v. Adamson, ut supra; M'Murchy v. Campbell, May 21, 1887, 14 R. 725, 24 S.L.R. 514; Campbell v. Cochrane, ut supra, was distinguishable in that such facts and circumstances were lacking. That “disgrace” was slanderous if malice were proved, even though there was privilege, had been laid down in Newlands v. Shaw, December 2, 1833, 12 S. 550.

Counsel for the defenders the Magistrates of Edinburgh were not called upon.

At advising—