Scottish Court of Session Decisions

On 13th January 1908 John Webster, grocer and provision merchant, Govanhill, Glasgow, brought an action against R. Paterson & Sons, coffee essence manufacturers, Glasgow, in which he sued for £1000 damages for slander.

He averred—“(Cond. 2) The pursuer has never had any businesss relationship with the defenders, and has never purchased or sold, or pretended to sell, the essence of coffee known as ‘Camp’ coffee, manufactured by them. Notwithstanding this fact, however, the defenders, on or about 12th August 1907, presented in the Sheriff Court at Glasgow, a petition at their instance against the pursuer, in which they craved the Court ( First) To interdict the pursuer by himself, or those in his employment, from circulating or making statements to his customers or others to the effect that coffee known and sold under the name of ‘Kit’ coffee, or other coffee manufactured by Kit Coffee, Limited, 195 Broomloan Road, Govan, is the same and made of the same ingredients or from the same recipe as ‘Camp’ coffee, or from selling ‘Kit’ coffee or other coffee manufactured by Kit Coffee, Limited, for ‘Camp’ coffee, manufactured by the defenders, and to grant interim interdict; and ( Second) to grant a decree against the pursuer ordaining him to pay to the defenders the sum of £100 as damages.… The said petition was served on the pursuer on 13th August 1907. (Cond. 3) The defenders averred, inter alia, in said petition that they had been coffee manufacturers in Glasgow and elsewhere for over forty years, and for the last twenty years have manufactured and put on the market a brand of coffee known as ‘Camp’ coffee, to which name they have the exclusive right, and in connection with which they have registered the word ‘Camp’ as a trade-mark as applied to coffee; that for many years prior to 1904 the partners of defenders firm were Mr Campbell Paterson and Mr Walter Paterson; that in or about the month of October 1904 Walter Paterson retired from the firm, being paid by the said Campbell Paterson the sum of £20,000 as his share and interest in the firm, including goodwill, which was valued at that date at the sum of £10,000 or thereby, and the greater part of which represented the value of ‘Camp’ coffee as a trade name; that notwithstanding the arrangement then come to, the said Walter Paterson has had a substantial interest in a firm of Adams & Co., who were the original makers of ‘Kit’ coffee, and has a substantial interest in the Kit Coffee Company, Limited, which company is competing with the defenders in the sale of coffee; that it had come to the knowledge of the defenders that the pursuer had been representing to his customers and to others that the coffee recently put upon the market under the name of ‘Kit’ coffee is exactly the same as ‘Camp’ coffee, that it is made from the same recipe, and contained the same ingredients; that the pursuer had further stated that ‘Kit’ coffee is

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made by the original manufacturer of ‘Camp’ coffee, and that he would on no account keep ‘Camp’ coffee, ‘Kit’ coffee being the same article and more profitable to deal in; that in particular the pursuer on or about 6th and 24th July 1907 made such statements to Miss Millicent F. T. Dick and Miss Annie E. T. Dick, both residing in Stevenson Drive, Langside, Glasgow, when asked for ‘Camp’ coffee, and to John Abraham, 16 Barony Street, Glasgow, and to many others whose names were not then known to the defenders. (Cond. 4) The defenders further averred, inter alia, in said petition that the foresaid statements, alleged to have been made by the pursuer, were false; that the coffee known as ‘Kit’ coffee, and which is manufactured by Kit Coffee Company, Limited, is a different and inferior article to ‘Camp’ coffee in many respects, and in particular it is deficient in caffeine, the most valuable constituent of coffee, ‘Camp’ coffee containing about 25 per cent. more caffeine than ‘Kit’ coffee; that the said statements alleged to have been made by the pursuer are injurious to the defenders' business, in respect that by making such statements the pursuer was inducing his customers and others to believe that coffee sold under the name of ‘Kit’ coffee is the same article as desired by such customers and others who have ordered ‘Camp’ coffee, thereby inducing them to purchase ‘Kit’ instead of ‘Camp’ coffee, and diminishing the sale of the latter; and that not only were the said statements alleged to have been made by the pursuer false, but they were made fraudulently and maliciously by the pursuer with the intention of damaging the reputation of the defenders' coffee, and encouraging the sale of ‘Kit’ coffee, because the manufacturers of the latter article offered better terms to the pursuer than did the defenders—the Kit Coffee Company, Limited, preferring to sell at a loss in order to induce grocers to take their coffee in preference to ‘Camp,’ and thereby damage the latter. The defenders further averred in said petition that in making such statements the pursuer was acting fraudulently and maliciously in collusion with the said Walter Paterson, or his son Robert, or the Kit Coffee Company, Limited, with the intention of forcing ‘Camp’ coffee off the market, and substituting ‘Kit’ coffee therefor, a device to evade the restrictive obligation which the said Walter Paterson was under on his retiral from the defenders' firm with a large sum in name of goodwill (Cond. 6) The foresaid petition and action for interdict and damages was raised by the defenders against the pursuer for the purpose of advertising and gaining publicity for their coffee essence known as “Camp” coffee, of interfering with the pursuer in the legitimate conduct of his business, and of intimidating him from buying or selling a coffee essence known as ‘Kit’ coffee. The defenders were well aware that the pursuer had a perfect right to sell ‘Kit’ coffee, that their action for interdict and damages against him was quite unwarranted and groundless, but that their malicious action would seriously hamper him in the legitimate conduct of his business, and might force him into giving up the sale of ‘Kit’ coffee rather than be involved in litigation. With this object in view, and for the purpose of wrongfully obtaining interdict against the pursuer, the defenders falsely, maliciously, and calumniously stated in said petition that the pursuer made the various statements before condescended on falsely, fraudulently, and maliciously with the intention of damaging the reputation of the defenders' coffee and encouraging the sale of ‘Kit’ coffee, because the manufacturers of the latter offered better terms to the pursuer than the defenders did, and that in making such statements the pursuer was acting fraudulently and maliciously in collusion with Walter Paterson or his son Robert, or the Kit Coffee Company, Limited, with the intention of forcing ‘Camp’ coffee off the market and substituting ‘Kit’ coffee therefor, which, they averred, was a device to evade the restrictive obligation which the said Walter Paterson was under on his retiral from the defenders' firm with a large sum in name of goodwill, and that the pursuer was thus guilty of fraud (Cond. 7) At the same time as presenting the said petition for interdict against the pursuer the defenders presented no fewer than thirty-five such petitions and actions in the Sheriff Court at Glasgow on or about said 12th August 1907 for interdict and damages against that number of grocers and provision merchants carrying on business in the city of Glasgow.… This was done in pursuance of a fraudulent and malicious scheme conceived by the defenders using legal process for the purpose of advertising and gaining publicity for their coffee essence called ‘Camp’ coffee, and of intimidating grocers from dealing in ‘Kit’ coffee (Cond. 9) The defenders, while the action was still in this position [ i.e., sisted on a plea of all parties not called] and without a proof of their averments having been taken therein, maliciously caused to be repeatedly inserted in various newspapers which are issued to the public and have a large circulation in the City of Glasgow and throughout Scotland, conspicuously displayed advertisements with prominent head lines printed in specially large type, such as ‘Appeal to the Public,’ ‘Truth will Prevail,’ ‘Honour Bright,’ ‘Warning to the Public’ with reference to their ‘Camp’ coffee. The said advertisements set forth that the defenders ‘having repeatedly received complaints from members of the public that when they asked for or ordered “Camp” coffee in certain grocers’ shops they were supplied with another coffee essence said to be “exactly the same as Camp,” “made from the same recipe as Camp,” “made by the man who used to make ‘Camp.’” Further, the said advertisement specially refer the public to the fact that the defenders have raised actions against thirty-five of the grocers found making false and misleading

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statements, whereby the public have ‘been deceived and induced to buy inferior coffee, which although bought by said grocers at a much lower price than they can buy “Camp” coffee is palmed on the public as being “the same as Camp,” and the public are charged the same price as if it were “Camp,” ‘that the defenders thereupon made’ investigations and purchases, which proved that a large number of grocers in Glasgow and surrounding districts are, on various pretexts, in the habit of proffering other coffee essence when asked for “Camp” coffee, and that no fewer than seventy-four of these grocers made the above or similar statements, which are equally false and calumnious.’ The said advertisements further proceed—‘We therefore have taken proceedings against thirty-five of the grocers found making such misrepresentations. We most respectfully and earnestly invite buyers of coffee essence to report to us every instance wherein such misrepresentations have been made or may be attempted, so that the public, as well as ourselves may be protected from the substitution of inferior goods, which are invariably sold for the sake of extra profit.’ …. (Cond. 11) The pursuer was one of the thirty-five grocers referred to in the said advertisements, against whom the defenders had taken proceedings on the ground of said alleged fraudulent misrepresentations, and the statements contained in them are of and concerning the pursuer. The public and the trade were freely informed that he was one of the said thirty-five grocers, through the medium of the public press (Cond. 12) The defenders in the said petition and advertisements falsely, calumniously, and maliciously represented, and intended to represent, that the pursuer acted dishonestly as well as dishonourably in the conduct of his business as a grocer and provision merchant, that he was in the habit of making false and misleading statements whereby the public were deceived and cheated, and that he was guilty of fraud. The said statements were made by the defenders of and concerning the pursuer, and were false, calumnious, and malicious.”

The defenders, inter alia, pleaded—“(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (4) The defenders should be assoilzied in respect that the statements complained of and alleged to have been made by the defenders were privileged, and were not made maliciously or without probable cause.”

On 23rd December 1909 the Lord Ordinary ( Guthrie) approved of the following issues:—“It being admitted that the defenders, on or about 12th August 1907, presented a petition for interdict and damages against the pursuer in the Sheriff Court at Glasgow, and that the condescendence annexed to the petition contains the following statements:—‘It has come to the knowledge of the pursuers that the defender has been representing to his customers and to others that the coffee recently put upon the market under the name of “Kit” coffee is exactly the same as “Camp” coffee, that it is made from the same recipe and contains the same ingredients. The defender has further stated that “Kit” coffee is made by the original manufacturer of “Camp” coffee, and that he would on no account keep “Camp” coffee, “Kit” coffee being the same article and more profitable to deal in … The statements complained of and made by the defender are injurious to the pursuer's business in respect that by making such statements the defender is inducing his customers and others to believe that coffee sold under the name of “Kit” coffee is the same article as desired by such customers and others who have ordered “Camp” coffee, thereby inducing them to purchase “Kit” instead of “Camp” and diminishing the sale of the latter. Not only are the statements complained of false, but they were made fraudulently and maliciously by the defender with the intention of damaging the reputation of the pursuer's coffee and encouraging the sale of “Kit” coffee, because the manufacturers of the latter article offered better terms to the defender than did the pursuers, the “Kit” Coffee Company, Limited preferring to sell at a loss in order to induce grocers to take their coffee in preference to “Camp,” and thereby damage the latter. Further, in making such statements it is believed that the defender was acting fraudulently and maliciously, in collusion with the said Walter Paterson, or his son Robert, or the Kit Coffee Company. Limited, with the intention of forcing “Camp” coffee off the market and substituting “Kit” therefor, a device to evade the restrictive obligation which the said Walter Paterson was under on his retiral from the pursuer's firm, with a large sum in name of goodwill'—Whether the said statements, or part thereof, are of and concerning the pursuer and are false and calumnious, and were maliciously and without probable cause inserted or caused to be inserted in the said condescendence by the defenders, to the loss, injury, and damage of the pursuer. Damages laid at £500. Whether the defenders inserted or caused to be inserted in the Edinburgh Evening News of date 19th December 1907 the advertisement contained in the schedule annexed hereto, and whether the said advertisement or part thereof is of and concerning the pursuer and falsely and calumniously represents that the pursuer has acted dishonestly in the conduct of bis business as a grocer and that he has deceived the public by false and misleading statements, to the loss, injury, and damage of the pursuer. Damages laid at £500.”

The schedule was—

“

The Proprietors of

‘ Camp’

Coffee

Having repeatedly received complaints from members of the public that when they asked for ‘Camp’ Coffee in certain

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grocers ‘shops they were supplied with another coffee essence, said to be’ exactly the same as “Camp”—‘made from the same recipe as “Camp”’—‘made by the man who used to make “Camp”’—and various other

False and Misleading Statements

whereby the public have been deceived and induced to buy inferior coffee, which, although bought by said grocers at a much lower price than they can buy ‘Camp’ Coffee, is palmed on the public as being the same as “Camp,”’ and the public are charged the same price as if it were ‘Camp.’

R. Paterson & Sons

Sole Proprietors and Manufacturers of

‘ Camp’ Coffee

thereupon made investigation and purchases which proved that a large number of grocers in Glasgow and elsewhere are, on various pretexts, in the habit of proffering other coffee essence when asked for ‘Camp’ Coffee, and that no fewer than 74 grocers made the above or similar statements, which are

Equally False and Calumnious.

We therefore have taken proceedings against 35 of the grocers found making such misrepresentations, and will deal with the remainder whenever these test actions have been decided.

“We most respectfully and earnestly invite buyers of coffee essence to report to us every instance wherein such misrepresentations have been made, or may be attempted, so that the public, as well as ourselves, may be protected from the substitution of inferior goods which are invariably

Sold for the Sake of Extra Profit.

Kindly address— R. Paterson & Sons, 77 Charlotte Street, Glasgow.”

Opinion.—“I think both issues must be allowed.

Under the first issue there are two questions ( first) whether there is sufficient averment of facts and circumstances to enable a jury to infer malice, and ( second) whether want of probable cause should be inserted in the issue. In regard to the first matter, it is admitted that on the face of it this is a case of privilege. The averments were pertinent and relevant, and they were made in judicial proceedings. There is therefore a case of privilege which, in the matter of degree, is high.

The next point that is clear is that the mere averment that the defenders were actuated by malice would not be enough. That was strongly put by Lord Justice-Clerk Moncreiff in the case of Gordon, 14 R. 75. The Court must be in a position to judge whether, if the averment of malice is proved, a jury could reasonably infer malice from the circumstances which are alleged. Merely to say that there was malice does not put the Court into that position. There must, therefore, be, as Lord Kinnear put it in Stevenson v. Wilson, 5 F. 309, such facts and circumstances stated as to enable malice to be inferred—‘facts and circumstances’—in his Lordship's words—‘by which such malice has been “evinced and evidenced” as the Lord Ordinary put it.’ The question whether it is sufficient to say that the statements complained of were known to be untrue has been much discussed. There are cases where it has been held that knowledge of untruth would be enough. There are other cases, with different circumstances, where it was held that such knowledge would not be enough. But in this case I find facts and circumstances averred by the pursuer which make it unnecessary to decide that question, namely, the averments at the commencement of condescendence 6, and in condescendence 7 at the end, where it is alleged that there was a fraudulent scheme conceived by the defenders under which, without having any foundation for the statements they were going to make, and without any legitimate object, they devised untrue statements against certain individuals, among whom the pursuer says he is included, to enable them to advertise and gain publicity for their coffee essence, and to enable them to intimidate grocers, and to prevent them dealing in Kit coffee. Now it appears to me that is an averment which will square with all the dicta and all the decisions, with the exception possibly of the dictum in Campbell v. Hamilton, 8 F. 205, by Lord M'Laren, where Lord M'Laren says you must have an averment of something not only antecedent to but also outside of the particular matter involved. The averment here, if true, involves something antecedent, but it would not involve anything outside the subject-matter. I do not find that Lord M'Laren's second requirement is supported by other authority, and, however applicable it may be in certain circumstances, I cannot follow it as a universal rule. Therefore, admitting that mere statement of malice is not enough, and assuming, further, that the mere statement that the averments were known to be untrue would not be enough, I hold that there are here such facts and circumstances in the shape of a conspiracy antecedent to the proceedings complained of as might lead a jury reasonably to the inference of malice.

On the other question—want of probable cause—the authorities do not seem consistent; but I think, on the whole, that the view put by Mr Cooper in his book is the sound one, namely, that while under the former practice want of probable cause was not inserted in cases of this kind, the present practice is to insert these words. I do not think that in this case the matter is of great importance, because if the defenders are well founded in their defence they should have no difficulty in showing that they had such information as would amount to probable cause.

On the second issue it is said that the pursuer is neither mentioned nor referred to in such a way as to make it possible for a jury reasonably to affirm that the statement complained of is of and concerning him. But the pursuer has undertaken to show that it is, and there is nothing on the face of the advertisement to exclude the alleged reference to the pursuer, and it will

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therefore be for the pursuer to establish what he alleges.

The other question is not so simple, namely, whether the words used in the advertisement are reasonably capable of warranting the innuendo sought to be placed on them. The advertisement must be taken as a whole. There are passages in it which are objected to but which are not capable of the innuendo, but when one finds that it starts with the heading ‘Truth will Prevail,’ and goes on to allege ‘deceit’ and ‘palming’ on the public, and the use of ‘pretexts,’ with the view of acquiring a trade advantage at the expense of the public by buying Kit coffee at a cheaper rate than Camp coffee, and then selling at the same rate at which Camp coffee is sold, on the statement that it is the same article, I think there would be enough to warrant the conclusion stated in the issue, namely, that the pursuer has acted dishonestly in the conduct of his business.

The only other question is, Whether on the face of it the advertisement was privileged? I see no ground on which privilege can be maintained, and no case was quoted in which such a doctrine has been made out in regard to a newspaper advertisement.”

The defenders reclaimed, and argued—Both issues should be disallowed—(1) The ground of the first issue was judicial slander, and no facts and circumstances sufficient to infer malice had been averred. The statements complained of were pertinent, and a pursuer was entitled to plead his case as high as he could provided his statements were pertinent— Campbell v. Cochrane, December 7, 1905, 8 F. 205, 43 S.L.R. 221. It was not enough to say there was a fraudulent scheme; facts and circumstances sufficient to infer malice must be averred— Selbie v. Saint, November 8, 1890, 18 R. 88, 28 S.L.R. 84. Malice might be inferred, for example, from some extrinsic facts, or from the intemperance or violence of the words used— Adam v. Allan, June 23, 1841, 3 D. 1058 at 1076; A v. B, 1907 S.C. 1154, 44 S.L.R. 870. No such inference could be drawn here. Further, the facts set forth must also be sufficient to infer want of probable cause— Selbie ( cit. supra), and no such facts were averred. (2) The second issue ought also to be disallowed for the advertisement complained of contained no issuable matter. Esto that it might have imputed misrepresentation to the pursuer, it made no accusation of dishonesty—it inferred nothing more than honest mistake, and that was not actionable.

Argued for pursuer—(1) The Lord Ordinary was right, except as regards the words “want of probable cause” which should be deleted from the first issue— Gordon v. British and Foreign Metaline Company, November 16, 1886, 14 R. 75, 24 S.L.R. 60; Williamson v. Umphray and Robertson, June 11, 1890, 17 R. 905, 27 S.L.R. 742. Esto that malice must go into the first issue— Ewing v. Cullen, (1833) 6 W. & S. 566—facts and circumstances sufficient to infer it had been averred— Brown v. Fraser, June 27, 1906, 8 F. 1000, 43 S.L.R. 741; Gall v. Slessor, 1907 S.C. 708, at 714, 44 S.L.R. 547; M v. H, 1908 S.C. 1130, 45 S.L.R. 874. (2) The advertisement read as a whole inferred that the pursuer had been guilty of fraud, for it bore that he had passed off an inferior kind of coffee as the defenders'. The words were reasonably capable of bearing the innuendo put on them by the pursuer.