Scottish Court of Session Decisions

On 10th October 1911 the Most Reverend Robert Browne, Bishop of the Roman Catholic Diocese of Cloyne, Ireland, residing at Bishop's House, Queenstown, County Cork, and certain other clergymen of the Roman Catholic Church there, brought an action against D. C. Thomson & Company, Limited, publishers and proprietors of the Dundee Courier, in which they claimed damages for slander in respect of an anonymous article which appeared in the Courier on 15th August 1911, entitled—

Sinister Side-lights on Home Rule.

Irish Incidents showing Feeling toward Britain.

By One who has Lived in Ireland.”

The portion of the article of which the pursuers complained is quoted supra in rubric.

The pursuers averred—“(Cond. 1) … The pursuers are the sole persons who exercised religious authority in name and on behalf of the Roman Catholic Church in Queenstown aforesaid in the year 1909. During that year the pursuers alone were the ‘Roman Catholic religious authorities’ of Queenstown, and alone had power and jurisdiction to issue instructions to the members of their religious institutions.… (Cond. 4) The portion of said article, which is in the following terms—[ Here followed the portion complained of]—was written and published by the defenders of and concerning the pursuers.

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The defenders were well aware that the pursuers the Bishop of Cloyne and the said Queenstown clergy, as at a date approximately two years prior to the publication of the said article, constituted and could alone constitute ‘the Roman Catholic religious authorities’ of Queenstown, and it was their intention in publishing and circulating the article complained of to slander the pursuers and injure their reputations as office-bearers of the Catholic Church.… (Cond. 5) In the portion of said article quoted in the preceding article of the condescendence the pursuers are falsely, calumniously, and maliciously charged with having conceived, out of a spirit of religious intolerance and persecution, and to have put into operation, a criminal and illegal conspiracy to secure by an underhand use of ecclesiastical influence upon the Catholic laity the indiscriminate dismissal of all the Protestant shop assistants—a numerous body—in the employment of Roman Catholics in Queenstown solely on account of their being Protestants; and further, with having caused the banishment from Ireland, and ruined the business, of a Roman Catholic shopkeeper in Queens town for refusing to discharge a Protestant employee when ordered to do so by the pursuers in the execution of their alleged illegal scheme and abuse of ecclesiastical authority and influence. (Cond. 6) The statements contained in the said article and the imputations therein conveyed are false, calumnious, and malicious. They constitute a gross libel on the pursuers. In point of fact no instructions whatever were issued by the pursuers either individually or collectively for the dismissal of Protestant shop assistants as alleged. No Roman Catholic shopkeeper was treated in the manner alleged, and the said story is a deliberately concocted tissue of false and calumnious statements, fabricated and published by the defenders in order to defame the characters and reputation of the pursuers and injure them in the eyes of the public.… (Cond. 7) The said false and calumnious statements have seriously injured all the pursuers in their character and reputation as priests and citizens. By them the defenders falsely and calumniously represented and intended to represent that the pursuers were unworthy of their offices in the Catholic Church; that they were guilty of criminal conspiracy according to the law of Ireland and of tyranny over the members of their Church, and of gross oppression of the Protestant shop assistants in Queenstown; and that they were actuated by feelings of bitter animosity and hatred towards the inhabitants of Great Britain.”

The defenders pleaded, inter alia—“(2) The averments of the pursuers being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”

On 9th January 1912 the Lord Ordinary ( Hunter) approved of the following issue—“It being admitted that on or about 15th August 1911 the defenders printed and published in the Dundee Courier of that date an article entitled ‘Sinister Side Lights on Home Rule,’ of which the schedule appended hereto contains an extract—Whether the statements in said extract, or part thereof, are of and concerning the pursuers, or any of them, and falsely and calumniously charge them with abusing their religious influence over the Catholic laity to procure the indiscriminate dismissal of all Protestant shop assistants in the employment of Catholics in Queenstown, and with ruining the business of a Roman Catholic shopkeeper who had refused to discharge a Protestant employee, to the loss, injury, and damage of the pursuers?

Damages laid as follows:—

The Bishop of Cloyne .	The Rev. Thomas Madigan.	The Rev. Cornelius Corbett.	The Rev. Denis O'Connor	The Rev. John O'Donoghue.	The Rev. David Kent .	The Rev. Wm. Francis Browne
£2000	500	500	500	500	500	500

[A schedule containing the title of the article and also the portion complained of was appended to the issue.]

Opinion.—“… [ After narrating the pursuers' averments] …—The defenders maintained two points to me—first, that the article did not refer to the pursuers, and second, that it was not slanderous. It appears to me that both these points must be left to the jury. As regards the first, I think a jury would or might be entitled to hold that the article attacked the conduct of the Roman Catholic religious authorities in Queenstown, and was therefore of and concerning the pursuers. As regards the second, I cannot agree with the argument of the defenders that there is nothing in the article except a general railing accusation, or what might be regarded as attributing meritorious conduct to the pursuers from the standpoint of those professing the same form of faith. To falsely accuse the teachers of any form of Christian doctrine of such bigotry as leads them to compass the temporal ruin of those professing another form of Christianity appears to me an odious charge reflecting upon character and entitling those accused to maintain an action of slander against those making or circulating the charge. I shall therefore allow the pursuers an issue.

The pursuers have proposed an issue without an innuendo, and putting to the jury the question whether the statements in the extract are of and concerning the pursuers, and are false and calumnious. In support of this form of issue I was referred to the case of Macrae v. Wicks, 13 R. 732, 23 S.L.R. 490, but that was an article reflecting upon an hotelkeeper's conduct of his business, and is not a form of issue that has been widely followed in practice. I think that, where the slander is a reflection upon personal character, and is contained in a series of sentences, each one of which is not necessarily slanderous, it is usual to focus what is defamatory by means of an

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innuendo. The issue which I propose to allow is in the following terms:—“Whether … [ quotes v. sup.]….”

The defenders reclaimed, and argued—The article was not slanderous, for when fairly read it did not bear either the innuendo in cond. 5 or that in cond. 7. The words the “Roman Catholic Authorities in Queenstown” did not necessarily mean the pursuers, and even if they did the pursuers were not referred to as individuals but merely in their collective capacity. That being so the action was irrelevant— M'Fadyen v. Spencer & Company, January 7, 1892, 19 R. 350, 29 S.L.R.. 295. [The Lord President referred to Hulton & Company v. Jones, [1910] AC 20.] Esto that slanderous statements regarding a set of persons in their collective capacity might ground an action at the instance of one of their number, that was only so where the party suing had been personally injured thereby— Hustler v. Watson, January 16, 1841, 3 D. 366. That was not so here, and the issue therefore should be disallowed.

Counsel for the respondents were not called on.