Scottish Court of Session Decisions

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Cite as: [1911] ScotLR 225, [1911] SLR 225

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SCOTTISH_SLR_Court_of_Session

Page: 225↓

Court of Session Inner House First Division.

Tuesday, December 5. 1911.

[ Lord Cullen, Ordinary.

49 SLR 225

Smith

v.

Walker.

Subject_1Reparation
Subject_2Slander
Subject_3Innuendo
Subject_4Failure to Aver Facts and Circumstances Justifying Innuendo — Relevancy.
Facts:

W. wrote to E., a bookmaker, a letter in the course of which he said—“As regards your friends L. and D., neither of whom I have had the distinguished—I may say the very distinguished—pleasure of meeting, and as I always bet with the ready only on the racecourse, I think it rather out of place for them to send alleged accounts to me.” In an action of damages for slander by D. against W., the pursuer sought to innuendo these words as representing that he (the pursuer) had attempted to obtain money from the defender by presenting fraudulent accounts to him showing a balance due by the defender on certain betting transactions. Held that the words were not capable of reasonably sustaining the innuendo, and that, in the absence of any averment of facts and circumstances capable of supporting the alleged sinister meaning, the action must be dismissed as irrelevant.

Capital and Counties Bank v. Henty, (1882) L.R., 7 A.C. 741, followed.

Headnote:

George William Smith, turf commission agent, Leeds, carrying on business under the name of George Drake, brought an action of damages for slander against James Walker, publican, Aberdeen.

The pursuer averred, inter alia—“(Cond. 2) On or about 2nd June 1911 the defender was introduced personally to the pursuer by Robert Evans, turf commission agent, at Epsom races, where the pursuer was carrying on business under his trade name. The said introduction was for the purpose of enabling the defender to bet with the pursuer on credit, and the pursuer, relying on the recommendation of the said Robert Evans, did enter into certain betting transactions on credit with the defender, as a result of which the defender became indebted to the pursuer to the amount of £95. The pursuer subsequently rendered to the defender an account for the said transactions, a copy of which is herewith produced and referred to. (Cond. 3) In a letter dated 12th June 1911, and addressed
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and sent to the said Robert Evans, the defender wrote, ‘As regards your friends Lee and Drake, neither of whom I have had the distinguished, I may say the very distinguished, pleasure of meeting, and as I always bet with the ready only on the race-course, I think it rather out of place for them to send alleged accounts to me … (Cond. 4) The said statements in the said letter, written and sent by the said James Walker to the said Robert Evans, were written of and concerning the pursuer, and are false, malicious, and calumnious. By said statements the said James Walker represented, and intended to represent, that the pursuer, though well knowing that no betting transactions had ever taken place between him and the defender, had attempted to obtain money by fraudulently presenting to the defender accounts showing a balance due by the defender on certain betting transactions. Further, the said statements represented and were intended to represent that the pursuer, having received full and final payment in ready money from the defender of all sums due to him in respect of any transactions between them, relying on the absence of any receipt, was endeavouring fraudulently to obtain a second payment from the defender in respect of the same transactions. The said statements were calculated to injure, and did injure, the pursuer in his professional reputation.…”

The defender pleaded, inter alia—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the action.”

On 15th November 1911 the Lord Ordinary ( Cullen) approved of the following issue—“Whether on or about 12th June 1911 the defender did write and send to Robert Evans a letter containing the following words, viz., ‘As regards your friends Lee and Drake, neither of whom I have had the distinguished—I may say the very distinguished—pleasure of meeting, and as I always bet with the ready only on the race-course, I think it rather out of place for them to send alleged accounts to me’; and whether the whole or any part of the said words are of and concerning the pursuer, and were meant and intended to represent, and did falsely and calumniously and injuriously represent, that the pursuer was attempting to obtain money from the defender by presenting fraudulent accounts to him showing sums due by the defender on alleged betting transactions between the pursuer and the defender, to the loss, injury, and damage of the said pursuer. Damages laid at £500.”

The defender reclaimed, and argued—The innuendo was unreasonable and strained. The words simply meant that the defender denied that any debt was due. The case of Blasquez v. Lothians Racing Club and Reid, June 29, 1889, 16 R. 893, 26 S.L.R. 633, founded on by the pursuer, was distinguishable, as the words there complained of were used in connection with the pursuer being turned off a race-course, which was the substantive ground of action.

Argued for respondent—The innuendo was reasonable. The proper test was whether it was inconsistent with the words complained of— Mackay v. M'Cankie, January 27, 1883, 10 R. 537, per Lord President Inglis at P. 539, 20 S.L.R. 357. The present case was similar to Blasquez ( cit.), where an issue was allowed. Reference was also made to the opinion of Lord M'Laren in Sexton v. Ritchie & Company, March 18, 1890, 17 R. 680 at p. 696, 27 S.L.R. 536, aft. 18 R. (H.L.) 20, 28 S.L.R. 945.

Judgment:

Lord President—This is an action at the instance of George William Smith, a turf commission agent, against James Walker, a licensed publican carrying on business in Aberdeen. The pursuer sets forth that he is a turf commission agent—which in common parlance is a book maker—and that he carries on business under the name of George Drake. He then sets forth that on a certain date in June 1911 the defender was introduced personally to him by Robert Evans, another turf commission agent, at the Epsom races, and he says that he entered into certain betting transactions on credit with the defender. The defender denies that betting transactions were entered into, but of course at this moment we must take it that the pursuer's statement is correct. Then in the next condescendence the pursuer says—“In a letter dated 12th June 1911, and addressed and sent to the said Robert Evans, the defender wrote”—he does not quote the whole letter, but he simply takes this quotation—“‘As regards your friends Lee and Drake, neither of whom I have had the distinguished—I may say the very distinguished—pleasure of meeting, and as I always bet with the ready only on the race-course, I think it rather out of place for them to send alleged accounts to me.” The letter is admitted to have been transmitted. Upon that the pursuer raises an action of damages for slander against the defender, and an issue has been granted by the Lord Ordinary which runs thus—…[ His Lordship quoted the issue.] …”

I am of opinion that that issue ought not to be granted. The law upon this matter is, I think, perfectly well settled, and I might quote many cases in which it has been laid down, but I will take one in the House of Lords. It is an English case, but in this matter there is no distinction between the law of England and the law of Scotland, and I take the words of Lord Selborne, the Lord Chancellor, in the case of the Capital and Counties Bank v. Henty, 1882, 7 App. Cas. 744. Lord Selborne says there—“In Sturt v. Blagg, Wilde, C.J., said, ‘It is the duty of the judge to say whether a publication is capable of the meaning ascribed to it by an innuendo, but when the judge is satisfied of that, it must be left to the jury to say whether the publication has the meaning so ascribed to it,’” There the quotation ends, and Lord Selborne proceeds. in his own words “If the judge, taking into account the manner and the

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occasion of the publication and all other facts which are properly in evidence, is not satisfied that the words are capable of the meaning ascribed to them, then it is not his duty to leave the question raised by the innuendo to the jury.” And then he goes on, in a sentence I need not quote, to say that there must be something which to a reasonable mind would suggest the innuendo. It therefore always comes to be this, if the words are not slanderous in themselves and an innuendo is suggested, does the Court think that the words are capable reasonably of sustaining that innuendo?

I am of opinion here that the words are not capable reasonably of sustaining the innuendo. I think when you say, “I am a person who always bets in ready money, and therefore it is absurd for anyone to send me accounts for an alleged debt,” you show of course perfectly clearly that you repudiate the idea of owing anything; but you do not seem to me to say anything which can be reasonably construed into an averment that the attempt to say that you did owe something was a fraudulent attempt.

Now I think that as the argument developed, Mr M'Clure was driven to admit that if you take the mere words as they stand, that view is correct. But his argument was this. He said—“If I am allowed to prove all the surrounding circumstances between these people, I shall show that it was not unreasonable to take this meaning out of the words, and I cannot do this unless I have the opportunity of submitting the circumstances to a jury.” I do not doubt that Mr M'Clure so far was perfectly right—that is to say, that you may by bringing in extraneous facts and circumstances give a point to words which without these extraneous facts and circumstances they would not bear, but which in the light of these extraneous facts and circumstances they may bear.

But then I think the facts and circumstances must be there. In other words, going back again to Lord Selborne, it is “taking into account the manner and the occasion of the publication and all other facts which are properly in evidence.” I need not remind your Lordships that of course the English method of jury trial is different from ours. There is no issue. Demurrer in such cases is unknown. The case goes to trial and the question that we are now trying is not tried, as here, upon a question of granting an issue, but is tried and concluded at the trial itself; and it resolves itself into a consideration by the presiding judge whether he shall take away the case from the jury or not—that is to say, whether he shall say to the jury, “Well now, gentlemen, consider if these words reasonably can bear the innuendo,” or whether he shall say to the jury, “I tell you that, inasmuch as I am of opinion that the words will not reasonably bear the innuendo, there is nothing more for you to do except to return a verdict for the defendant.” Now applying that to our practice, we have got to do that at the stage of approving the issue; and accordingly, if you translate Lord Selborne's words—“taking into account the manner and the occasion of the publication and all other facts which are properly in evidence”—into words that exactly fit our practice, you must substitute for the words “properly in evidence” the words “which are properly averred on record.”

Now when I come to the record I find no averment of that sort. It is a mere naked averment. And I also find this, that even the whole letter is not put forward. It might have been possible to put a colour upon the words from the position that this sentence occupied in the letter. If I may use the expression—colloquial, perhaps, more than literary—if a thing is brought in by the head and the heels, it is of course very much easier to show that it has a sinister meaning than if it comes in its place in the context in the natural course of the letter. If I might be permitted to make a guess about this quotation, it looks like an answer to something said before, but that of course I cannot tell. If, however, there was colour to be got from the facts and circumstances, the pursuer ought to have set them forth. Instead of doing that, he takes out of the letter this little sentence, harmless in itself, and says—“If you will allow me to prove all I want to prove, I think I can show it has a sinister meaning.” I think he cannot be allowed to do that, and I think the innuendo cannot reasonably be taken out of the words as they stand.

Accordingly I think that the interlocutor of the Lord Ordinary ought to be recalled and that the action should be dismissed.

Lord Kinnear—I am of the same opinion. I think that the words complained of will not reasonably bear the meaning the pursuer puts upon them. He takes a single sentence out of a letter, and upon the words of that sentence he alleges that he has a good action for slander. The sentence taken by itself seems to me to come to no more than a rather more peremptory version of what the defender says in stating his position upon record, because the pursuer begins by alleging that he had a transaction with the defender as the result of which the defender became indebted to him to the amount of £95, and the answer is that the defender never had any transaction with the pursuer; he is not aware of ever having met him, he does not know him, and he denies that the account is due. Now if there is ground for that defence, it is a perfectly relevant statement which a man is entitled to make when he is asked for money that he denies to be due.

I think it very possible that words in themselves apparently innocent may be shown to have a slanderous meaning when they are read with reference to the circumstances in which they were uttered or written, or with reference to the context in which they occur. But then if the pursuer intends to make a case to justify an innuendo upon these grounds, he is bound

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relevantly to allege the circumstances which he says tend to show the meaning of the words complained of, and above all he is bound to produce the whole document out of which he has chosen to pick a single sentence to form the subject of this complaint. I think there is no relevant averment here of any fact which would enable a jury to put a different meaning upon the words than the innocent meaning which they naturally bear, and if the pursuer intended to make a complaint of slander from the use of language in one sentence of a letter he was bound to give us the context in which it occurred as well as the particular sentence of which he complained, therefore agree with your Lordship that there should be no issue.

Lord Ormidale—I concur with your Lordships.

Lord Johnston and Lord Mackenzie were absent.

The Court recalled the interlocutor of the Lord Ordinary and assoilzied the defender.

Counsel:

Counsel for Pursuer (Respondent)— M'Clure, K.C.— Normand. Agents— Mackenzie & Kermack, W.S.

Counsel for Defender (Reclaimer)— Watt, K.C.— D. Anderson. Agent— James A. B. Horn, S.S.C.
1911