Scottish Court of Session Decisions

Francis Christie Chalmers, wholesale bottler and aerated water manufacturer, Aberdeen, pursuer, brought an action against Barclay, Perkins, & Company, Limited, brewers, London, defenders, in which he sued for £5000 as damages for slander and malicious prosecution.

The pursuer had for some years bought the defenders' stout in barrels for bottling purposes.

He made the following averments, inter alia—“(Cond. 4) One day in the end of May 1910 the pursuer on going into his premises was told that a Mr Bain had ordered four dozen bottles of defenders' stout, and that these had been despatched to him. Said bottles had, the pursuer believes, been taken from the stock of bottled stout lying on the shelves of the pursuer's store. The pursuer attached no importance to said purchase, and heard no more thereof until on or about 5th July 1910, when he received from the defenders' law agents in Aberdeen a letter dated 4th July 1910, which is produced and referred to. Said letter, which was written on the instructions of the defenders, stated that the stout bought by Mr Bain was in bottle, one lot bearing pursuer's name and the other the number ‘1241,’ and that all the samples bearing the label with pursuer's name proved, on analysis, to have an original gravity of from 1064·09 to 1067·46 instead of 1073. The letter then proceeded in the following terms:—‘This discloses that a very serious tampering in the way of adulteration has taken place with the stout issued to you by Messrs Barclay, Perkins, & Company, and bottled by you, and we have their instructions to take proceedings against you for that offence. Before taking the matter into Court, however, they have accepted our advice to give you an opportunity of suitably apologising, and we are therefore instructed to say that if you will give them a letter acknowledging the fault complained of and apologising therefor, to be advertised at the discretion of our clients, and will pay a sum of say ten guineas to the Aberdeen Royal Infirmary and the expenses to which our clients have been put in the matter, they will take no further proceedings with regard to it. Failing your consenting to this course, however, we shall have no help but take the matter into court, when we need not say the consequences must be much more serious to you.’ By said letter the defenders represented that the pursuer had adulterated stout supplied to him by them, and had, for his own profit, dishonestly and fraudulently sold the adulterated mixture to his customers as stout of the defenders' manufacture, and that he was thus guilty of an offence for which he was liable to prosecution. The said charge against the pursuer contained in said letter was false and calumnious, and was made with gross recklessness and with malice. The pursuer was much hurt in his feelings that any such accusation should be made against him, and it occasioned him very great anxiety and disturbance of mind, especially looking to the fact, hereinafter referred to, that owing to the stout in question having been entirely disposed of, he was deprived of the means of instantly proving his innocence. The pursuer was, and is, entirely unable to understand for what reason the said charge was made. There was no ground for any such charge, and no person acting with due care and without gross recklessness could have made it. The pursuer through his agents immediately repudiated the charge made against him. (Cond. 5) By 5th July 1910, the date of receipt of said letter, the barrel or barrels of defenders' stout from which said four dozen bottles had been drawn had been returned empty to defenders, and all the stout which had been bottled therefrom had been disposed of. The pursuer had thus no opportunity of making any comparison between the quality of the stout alleged by the defenders to have been contained in said bottles, and the bulk from

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which the bottles had been filled in the previous month of May. (Cond. 7) In said letter of 4th July 1910 from defenders' law agents in Aberdeen, the defenders stated that the original specific gravity of their stout was always maintained at the figure of 1073, and that the stout purchased for purposes of analysis by the said Mr Bain on or about 27th May 1910 as above mentioned varied from 1064·09 to 1067·46, and it was upon the variation of gravity from their alleged standard of 1073, and that alone, that the charge of tampering by way of adulteration was founded by defenders. It is very difficult from analysis alone to identify any particular sample of stout as of any particular manufacture, and it is impossible for a manufacturer, as the defenders well knew, to say by a mere gravity test whether any specific stout is the stout of his own manufacture. The term ‘original gravity’ applied to stout means the density or gravity of the wort in its unfermented state. As is well known to all chemists and brewers, in the course of the process of fermentation of the wort, certain chemical changes occur which have the effect of altering the gravity of the liquid, and after fermentation it is not possible even by the most careful analysis and calculation to ascertain accurately what was the original gravity of the particular stout. Any such attempt to find the original gravity is always subject to a certain margin of error, the variation depending upon a number of factors, the effect of which cannot be determined with accuracy. Accordingly a manufacturer of stout or beer who wishes to ascertain with any approximation to accuracy whether a particular stout is a stout manufactured by him, is in the habit of adopting other well known scientific tests in addition to the gravity test. Even if all the known tests are adopted it cannot be affirmed with certainty from mere analysis that any stout is the stout of a particular manufacturer. These facts are common knowledge to persons engaged in brewing, and were well known to defenders. Further, even if the defenders could have determined by the result of the gravity test whether the stout in question was stout of their manufacture as supplied to the pursuer, the defenders' chemists in performing the said test failed to take into account essential factors which must be considered before an attempt can be made to estimate ‘original gravity,’ and the defenders knew, or ought to have known, that the said test was absolutely inadequate for the purpose of determining whether or not the pursuer was guilty of adulterating the stout supplied by them and fraudulently selling it as their stout. Nevertheless, upon no other ground than the absolutely inadequate foundation of an alleged gravity test, the defenders made the charge in the said letter of 4th July 1910, and instituted the prosecution hereafter referred to. Further, the defenders make and deal very largely in a stout of a lower specific gravity than that which had been ordered from them by the pursuer, and they did not adopt in their brewery any specific precautions to secure with certainty that on every occasion the stout they were sending to the pursuer was not said stout of a lower grade of gravity, and the individual barrels of stout which they sent to pursuer were not sampled or tested before being despatched to him. In point of fact the stout consigned to the pursuer was frequently of the lower standard of specific gravity. (Cond. 8) On or about 23rd September 1910 a complaint under the Summary Jurisdiction (Scotland) Act 1908 was served upon the pursuer at the instance of the defenders. The complaint charged the pursuer at the instance of the defenders with having, on 28th May 1910, in response to an order by Alexander Henry Bain, spirit dealer, 82 Regent Quay and 2 Commerce Street, both in Aberdeen, sold four dozen reputed pint bottles of stout which had been bottled by pursuer, and that prior to said sale and delivery the pursuer had falsely applied to seven or one or more of said reputed pint bottles of stout the defenders' registered trade-mark (blue label), thereby implying, contrary to the fact, that the stout contained in said seven or one or more reputed pint bottles was the brown stout manufactured by the defenders, and of the standard of quality of the stout so manufactured and sold by the defenders as their brown stout (blue label), contrary to the Merchandise Marks Act 1887, sec. 2 (1) ( b), whereby the pursuer was alleged to be guilty of an offence against the said Act, and had become liable on summary conviction to the penalties set forth in section (2)(3), sub-section (11), of the said Merchandise Marks Act 1887, and in terms of section 14 of said Act to the costs of the prosecution… On 22nd December 1910 the Sheriff gave judgment finding the pursuer not guilty, and the defenders liable to him in the costs of the prosecution. … (Cond. 9) At the trial of said case, although the pursuer was charged with having sold seven bottles of stout not manufactured by the defenders, or not of the standard of quality of defenders' stout, evidence was led in regard to only four of said bottles. No evidence whatever was led by the defenders in regard to the other forty-four bottles which had been purchased by the said Mr Bain. At the trial it transpired that the only ground which the defenders had for making the said charge and instituting the said complaint against the pursuer was their allegation by them that the stout in said four bottles was not of the original specific gravity of 1073 or at the lowest 1072. The defenders failed to prove in said proceedings that all the stout despatched from their brewery had an invariable standard of not less than 1073 or 1072 original specific gravity, and it was admitted that the defenders did manufacture a special draught porter of not more than 1068 original specific gravity. Moreover, it was not proved that the stout supplied to the pursuer was not or might not have been defenders' said draught porter, no identification of individual barrels sent to customers having ever been

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attempted. (Cond. 10) As above stated, the defenders on procuring the said four dozen bottles of stout on 28th May 1910, did not advise the pursuer that the same were obtained for the purposes of investigation, and they did not afford him any opportunity of having their analysis checked. They waited until all the stout from the barrels from which said four dozen bottles were supplied was exhausted before intimating any complaint to the pursuer. During the period between the beginning of September and the end of October 1910 they themselves supplied to the pursuer, upon orders for the same stout as previously supplied to him, stout of a lower standard of gravity than 1072, although they were on the point of prosecuting him for adulterating or tampering with their stout, for no other reason than that it did not reach the standard of gravity. (Cond. 11) The prosecution against the pursuer, who is a well-known citizen of Aberdeen, was extensively reported in Aberdeenshire newspapers, and as it extended over a number of weeks public attention was widely drawn to it. During the whole time that said prosecution was pending the defenders published twice a week in each of the Aberdeen Journal and Aberdeen Free Press an advertisement in the following terms, viz.:—

‘ Caution to The Public.

Barclay, Perkins, & Co.

When buying London stout, ask for Barclay, Perkins', and insist upon seeing their name on the label, as other stouts are being sold with labels similar in colour and appearance, which deceive the eye. Barclay, Perkins' London stouts are the best, and have stood the test for more than 200 years.’

Although said advertisement did not mention said prosecution or pursuer's name, yet it conveyed to the ordinary readers of said newspaper, as it was intended to do, that the pursuer was one of those who was guilty of the offence specified in the said advertisement, or of some similar fraudulent act, and that there was some intimate connection between the said prosecution of the pursuer and the terms of the advertisement. (Cond. 12) The prosecution of said complaint and the grave charge of fraud therein made has caused the pursuer serious loss and damage in addition to personal suffering. His reputation as a business man has been very seriously injured. Other brewers, such as Messrs Bass & Company, of Burton-on-Trent, have raised difficulties as to continuing to supply him with their goods, and his whole credit and character as a man and a trader have been shaken. There was not a vestige of foundation for the charge made in said letter of 4th July 1910, or in the complaint lodged against pursuer. Both the letter and the complaint were written and formulated without any adequate investigation on the part of the defenders. If the defenders had made such careful and adequate investigation as the circumstances called for, and as they could without difficulty have made, they would themselves have discovered that there were no grounds whatever for charging the pursuer with adulterating the said stout. The defenders made said false and calumnious charge and instituted said complaint recklessly and maliciously, and without caring whether the same was true or false, and without probable or any cause. The very slightest inquiry would have revealed to the defenders that the stout supplied by them to the pursuer was not of a uniform standard of gravity, but they took no pains to confirm the basis on which the whole charge rested, and recklessly and wantonly launched into proceedings against the pursuer which were certain for the time at least to cause him great damage and discredit. This they did in the belief that said prosecution, whether successful or unsuccessful, would advertise their stout and assist them in pushing their wares in the Aberdeen market. In so doing the defenders showed a malicious and wicked disregard of the pursuer's Interests, character, and position. …”

The pursuer pleaded—“(1) The statements in said letter of 4th July founded on in article 4 of the condescendence being of and concerning the pursuer, and false and calumnious, and having been uttered maliciously, to the loss, injury, and damage of the pursuer, he is entitled to reparation.

(2) The defenders having recklessly, falsely, and maliciously, and without probable cause, slandered the pursuer by charging him with having fraudulently adulterated their goods, and the pursuer having suffered injury thereby, are liable to pursuer in reparation. (3) The defenders having recklessly, maliciously, and without probable cause instituted the prosecution condescended on against pursuer, to his loss, injury, and damage, are liable to pursuer in reparation.”

On 23rd December 1911 the Lord Ordinary disallowed an issue laid on the letter of 4th July 1910 and allowed the following issue laid on the complaint—“Whether on or about 23rd September 1910 the defenders maliciously and without probable cause served or caused to be served upon the pursuer and prosecuted to a final issue a complaint in the terms set forth in the schedule hereto annexed, to the pursuer's loss, injury, and damage? Damages laid at £5000.”

Opinion.—“In this case the pursuer has proposed two issues, but I have come to the conclusion that there is only room for one. Fairly considered, I think that the letter of 4th July 1910 must be read as merely leading up to and forming a step in the prosecution which followed in September. There was, no doubt, an interval of ten or eleven weeks between the receipt of the letter and the service of the complaint, and in this respect the present case differs from the cases of Ferguson v. Colquhoun, 24 D. 1428, and Hassan v. Paterson, 12 R. 1164. But this arises really from the nature of the charge. It was not an accusation of theft or some other criminal offence with which the police are

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familiar, and which in ordinary course would be followed up at once by lodging a complaint with the police and then leaving the public authorities to deal with it. The letter contained a notice that if certain proposals were not accepted proceedings would be instituted in Court. The proposals were not accepted and proceedings were taken in Court. The delay was considerable, but I cannot hold it was undue. Both the letter and the prosecution were concerned with precisely the same incident, the alleged tampering with the defenders' stout before putting it into the bottles which were sold to Mr Bain as containing the stout of the defenders as supplied by them. It seems to me, therefore, that the letter and the prosecution form parts of the same occurrence, and that the pursuer has suffered only one wrong for which he seeks reparation. The proposed issues are in no sense alternative, but the pursuer sues only for one sum of damages and makes no attempt to appraise the extent of the several injuries sustained by him in respect of what he now contends were distinct and separate wrongs.

Accordingly I shall disallow the first issue proposed.

It is not disputed by the pursuer that malice and want of probable cause must go into the second issue, but the defenders maintain that there is no record for malice, that the averments thereanent amount to no more than a general allegation of malice, and that such is not relevant where, as they contend is the case here, the occasion is privileged. There must be, they say, specific averments of facts and circumstances from which malice can be inferred, and they further contend that these facts and circumstances must be extrinsic to and independent of the incident or incidents which constitutes or constitute the wrong. Many authorities were quoted. I have read and considered them all. I do not propose here to resume them. They appear to me to be not in all respects consistent, but there are two classes of cases in which facts and circumstances must be averred. First, cases of judicial slander, and second, cases directed against public officials. The present is not in either of these classes. It is said that a higher degree of privilege exists in the case of a private prosecutor than in the cases embraced in these two classes. In my judgment that is not so. It seems to me that a private prosecutor, as in this case, is primarily at least acting in his own and not in the public interest, and that to lodge and follow forth a complaint charging another man with an offence involving the imposition of a very serious penalty is an essentially different proceeding from the raising or defending a civil action. At the same time, in my judgment, the occasion here was privileged, but the privilege was not of so high a degree as in cases of judicial slander or those in which public officials are the defenders, and therefore the pursuer is not to be held to such strict averments of facts and circumstances as are required in cases of that class.

In regard to the contention that there are here no facts and circumstances evidencing an oblique motive independent of the prosecution and what led up to it, I had at first some difficulty in not giving effect to it in view of the dicta of Lord M'Laren in the case of Campbell v. Cochrane, 8 F. 205. But a careful perusal of these satisfies me that his Lordship had in his mind the particular circumstances and the kind of slander with which that case was concerned. It was a case, moreover, in which the Court held that the presumption of privilege was of the highest order. It seems to me that the way in which a person sets about the institution of a private prosecution may very clearly disclose malice, and that a reckless disregard of the alleged offender's interests as evidenced by a want of reasonable care and adequate investigation in preparing his charge is a sufficient averment on which to found malice. Many of the averments in this case are undoubtedly of a somewhat general nature, but I am not prepared to dismiss the action without giving the pursuer an opportunity of proving what he alleges. The letter of 4th July is in the most absolute terms. No opportunity for excuse or explanation is offered. Then there is a resumption or continuance of trading for ten or eleven weeks. There are, inter alia, averments that the proper means of testing the stout had not been adopted, that in fact the defenders' stout is of varying gravity and not up to the figure alleged by the defenders, and that the stout supplied to the pursuer was frequently of the lower standard of gravity. There is also the matter of the advertisement referred to in cond. XI, and while it appears to deal not with adulteration but with simulate labels, it is averred that it was intended to convey, and did convey, to readers of the news paper that the pursuer—whose prosecution was proceeding intermittently in the Sheriff Court at the time—was guilty of the offence specified in the advertisement.

Holding as I do that there must be some inquiry, I see no reason for not sending the case to a jury. I shall approve of the second issue as the issue for the trial of the cause.”

The defenders reclaimed, and argued—The action was irrelevant. In a privileged case specific or extrinsic facts from which malice could be inferred must as a rule always be set forth. There was here no averment indicating antecedent malice. Averments of facts and circumstances inferring malice were essential in cases of judicial slander, or where public officials were defenders— A v. B, 1907 S.C. 1154, 44 S.L.R. 870; M v. H, 1908 S.C. 1130, 45 S.L.R. 870; Campbell v. Cochrane, December 7, 1905, 8 F. 205 (Lord M'Laren at 214), 43 S.L.R. 221; Shaw v. Burns, 1911 S.C. 537, 48 S.L.R. 432. Moreover, this case was a fortiori of cases of judicial slander, where the pursuer in the action was protecting himself alone. Here the privilege was higher, for it was against the public interest that a person who had grounds

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for believing that an offence had been committed should be deterred from proceeding by fear of the consequences. The whole case on malice resolved itself into one of inadequate investigation and insufficient tests. It was said that malice must be inferred from the recklessness with which proceedings were taken, but it was not said that no inquiry had been made. The defenders had an undoubted title to prosecute with the consent of the procurator-fiscal— Burns v. Turner, December 17, 1897, 25 R. (J.) 38, 35 S.L.R. 265.

Argued for the pursuer (respondent)—In the first place, the pursuer was entitled to an issue on the letter alone. The charge made in the letter was different from that in the complaint; in the former the charge was a common law crime—Macdonald's Criminal Law (3rd ed.), 85—in the latter a statutory offence under the Merchandise Marks Act 1887 (50 and 51 Vict. c. 28), sec. 2 (1) ( b). The letter, moreover, was not a privileged communication, and accordingly averments from which malice and want of probable cause could be inferred were not necessary as regards it. Malice did not require to go into the issue— Wilson v. Purves, November 1, 1890, 18 R. 72, 28 S.L.R. 76; Reid v. Moore, May 18, 1893, 20 R. 712, 30 S.L.R. 628; if it did, the averments were sufficient. As regards the complaint, it was launched so recklessly and so entirely without reasonable grounds that in the circumstances any jury would be entitled to infer malice without any averment of antecedent ill-will. The defenders made their charge without adequate investigation and without asking any explanation. They gave the pursuer no opportunity of testing the stout. While it was no doubt true that both malice and want of probable cause must go in issue, the necessary implication from the above facts was that the defender had acted from illegitimate motives and without any ground whatever— Ingram v. Russell, June 8, 1893, 20 R. 771, 30 S.L.R. 699; Brown v. Fraser, June 27, 1906, 8 F. 1000, 43 S.L.R. 741; Hulton & Company v. Jones, [1910] AC 20; Urquhart v. Dick, May 11, 1865, 3 Macph. 932; The Quartz Hill Gold Mining Company v. Eyre, 1883, 11 Q.B.D. 674; Lundie v. MacBrayne, July 20, 1894, 21 R. 1085, 31 S.L.R. 872; Laidlaw v. Gunn, January 31, 1890, 17 R. 394, 27 S.L.R. 317; Finburgh v. Moss's Empires, Limited, 1908 SC 928, 45 S.L.R. 792; Musgrove v. Newell, 1836, 1 M. & W. 582; Hicks v. Faulkner (1878) 8 QBD 167; Pollock on Torts (8th ed.) 316.

At advising—