Scottish Court of Session Decisions

On 3rd December 1907 Lever Brothers, Limited, Port Sunlight, Birkenhead, brought an action against the Daily Record, Glasgow, Limited, in which they claimed £50,000 as damages for slander. The pursuers, who were soap manufacturers, complained of certain statements published by the defenders with regard to their conduct in entering into arrangements with other soapmaking firms, which the defenders referred to as the “soap combine.”

The following are examples of the passages complained of:—

“ Monday, 22 nd October 1906.

THE SOAP TRUST.

It has no doubt dawned on the British public by this time that they are face to face with another of those octopus concerns against which President Roosevelt is bravely battling in the United States. Various attempts have recently been made in this country to obtain a monopoly of certain trade articles, and the latest is the ingenious design by a few soap manufacturers to control the price and sale of toilet necessaries. The articles that have already appeared in our columns on the operations of the Soap Trust will have both surprised and enlightened the public.… Were the Trust to become all—powerful, which is obviously its aim, it would be no less a menace than a beef trust or an oil trust.

All the American ‘combines’ originated with the object, their promoters said, of cheapening production and reducing labour, and the people have found to their cost that the squeezing out of the smaller manufacturer has ended in the monopolist squeezing millions more out of the pockets of the public than were squeezed in the days of enterprising competition

SOAP TRUST AT WORK.

PRICES UP AND WEIGHT DOWN.

WORKERS BEING DISMISSED.

TOILET REQUISITES AFFECTED.

To-day's news shows that the grocery trade, both wholesale and retail, is realising the serious menace of the coming Soap Trust campaign, with its enhanced prices and reduced weights.

The public, too, which in any case seems bound to come off badly, is beginning to distinguish between soaps which belong to the Trust and those outside its scope.

Prices have already been advanced in some districts for Trust goods.

The Grocers' Federation has protested to have law against the 15-oz. pound, and it would now seem that the Trust are cutting the weight of 12-oz. bars to 11 ozs.

Dismissals of employees are beginning, and seem, despite denials, inevitable, since the entire country is being parcelled up into spheres of operation……

THE POUND OF 15 OZS.

… The Federation has lodged its protest against a pound of 15 ozs.… ‘We want to be able to sell the public a pound of soap when they ask for a pound. The public are willing to pay a higher price per lb. provided the quality is not tampered with.’”

The pursuers averred—“(Cond. 7) The statements made … falsely and calumniously represent, and were intended by the defenders to represent, that the pursuers by themselves and in company with others had been guilty of deceiving the public and traders, and of corrupt, extortionate, and dishonest methods and practices in business.… The said statements … were further false, and made by the defenders without lawful occasion, and with the design of injuring, and with the result of injuring, the pursuers in their trade and business. Said statements were made and published by the defenders with the intent and effect of holding up the pursuers and exposing them to public odium and contempt …”

The defenders pleaded that the articles complained of were “fair comment on matters of public interest.”

The pursuers proposed the following issues:—“It being admitted that the defenders printed and published in the issues of the Daily Record and Mail newspaper between 6th October and 3rd December 1906, and in the issues of the Scottish Weekly Record between 27th October and 24th November 1906, the matters contained in the schedule hereto annexed on the respective dates set forth in the said schedule: (1) Whether the statements therein contained are in whole or in part of and concerning the pursuers, and falsely and calumniously represent that the pursuers by themselves or in company with others had been guilty of deceiving the public and traders by dishonest methods and practices in business, to the loss, injury, and damage of the pursuers. (2) Whether the statements therein contained are in whole or in part of and concerning the pursuers, and whether said statements were false and were made with the design

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of exposing, and did expose, the pursuers to public odium and contempt, to the loss, injury, and damage of the pursuers. Damages laid at £50,000.”

On 12th March 1909 the Lord Ordinary ( Guthrie) disallowed the second issue.

Opinion.—“It is conceded that the pursuers are entitled to the first issue, namely, of dishonesty. But they ask a second issue of holding up to public odium and contempt.

It is admitted that, although occasion must often have arisen for a pursuer desiring, as here, if he fails in the more serious issue, to fall back on another, involving a lighter onus, there is no case in the books or known in practice where such a double issue, cumulative or alternative, has been allowed.

The pursuers' counsel seemed uncertain whether the two issues could both be affirmed by the jury, so much damages being given under each, or whether they would be alternative, the words ‘or otherwise’ being read in between the two. In the end he presented them as alternative.

I am of opinion that the pursuers are not entitled in this case to alternative issues. They must make up their minds as to the meaning and effect of the words alleged to be slanderous. If they will warrant an issue of dishonesty, then they will ask for that issue; if they cannot, be brought up to dishonesty, then they may or may not be entitled to an issue of holding up to public hatred. I have not to consider the circumstances in which the Court will again allow the latter issue, after an interval, since the last case in which that issue was allowed was, I am told, some sixteen years ago.

If the pursuers were entitled to auction with the jury by two bids as they propose, they would be entitled to more. They propose an issue of dishonesty and an alternative issue of public odium and contempt. According to the view they present, they might make their second issue into a third, and interject between the two an issue of public hatred, so that they would first ask a verdict on the ground of a charge of dishonesty; if they failed in that, they would next ask the jury to find that they had been held up to public hatred and contempt; and if they also failed in that, they would lastly ask a verdict on the ground that they had at least been held up to public odium. The alternative issues in a trial to reduce a will are not analogous. There, whichever issue is affirmed, the result is the same.

I therefore approve the first issue, and disallow the second.”

The pursuers reclaimed, and argued—The pursuers were entitled to both issues. Esto that there was no imputation of dishonesty, it was actionable to hold persons up to public contempt and odium as using detestable methods of working, as, for instance, employing sweated labour, and both issues therefore should have been allowed— Cunningham v. Phillips, June 16, 1868, 6 Macph. 926, 5 S.L.R. 602; Paterson v. Welch, May 31, 1893, 20 R. 744, 30 S.L.R. 668. The cases of Waddell v. Roxburgh, June 9, 1894, 21 R. 883, 31 S.L.R. 721, and M'Laughlan v. Orr, Pollock, & Company, November 6, 1894, 22 R. 38, 32 S.L.R. 36, were distinguishable, for there the words complained of did not, as here, imply the design to injure. Where there was a design not merely to ridicule but to injure or to produce loss of business, verbal injury, though not defamatory, entitled the injured party to an issue— Ratcliffe v. Evans, [1892] 2 QB 524. In any event the pursuers were entitled to have the issues submitted to the jury as alternatives.

Counsel for respondents were not called on.