Scottish Court of Session Decisions

Lord President — The point that is raised here is one, I think, more of novelty than of difficulty. This was an action of damages at the instance of Professor Bradley, and the issue that was sent to the jury was whether the defenders caused certain things to be published, and whether these things were of and concerning the pursuer. It was then innuendoed that they represented him as being guilty of disgraceful professional conduct, to the loss, injury, and damage of the pursuer.

Now the jury really affirmed all those propositions except the last. They held that the defenders had published, that the publications were of and concerning the pursuer, that they did contain a slur upon his professional conduct, but that the pursuer had no real damage done to him by them, and accordingly they assessed the damage at sixpence on each of the three issues. That they did following the view of the facts I had suggested to them in my charge.

Now it is the fact that a tender was put in at some period immediately after the lodging of the defences, and the tender being for a larger sum than the one shilling and sixpence recovered, the defenders would be entitled to expenses after the date of the tender, in accordance with the well-known rule. But then, in asking us to apply the verdict the defenders move also for the expenses prior to the tender, and they do so upon the ground that the action, as they say, never ought to have been raised.

Now the pursuer does not move for these expenses, and he does not move for them for this very good reason, that he comes within the words of the 40th section of the Court of Session (Scotland) Act 1868 (31 and 32 Vict. cap. 100), which provides that “where the pursuer in any action of damages in the Court of Session recovers by the verdict of a jury less than £5, he shall not be entitled to recover or obtain from the defender any expenses in respect of such verdict, unless the judge before whom such verdict is obtained shall certify on the interlocutor sheet that the action was brought to try a right besides the mere right to recover damages; or that the injury in respect of which the action was brought was malicious; or, in the case of actions for defamation or for libel, that the action was brought for the vindication of character and was in his opinion fit to be tried in the Court of Session.” Well, no such certificate was asked from me, and accordingly the pursuer is not in a position to ask for expenses. I may say at once, in order that counsel may not think I am putting any slur upon them, that I should never have granted a certificate in this case if I had been asked to do so, because I am clearly of opinion that this action should never have been raised, and that it was persisted in after it should have been given up. I think that the offers of amende in the letters of the defenders were very proper offers and ought to have been accepted. But then the defenders ask that they should have expenses up to the tender. I think if we granted that we should be, so to speak, going against the verdict of the jury. After all, the jury has affirmed, as I say, certain propositions which put the defenders, not only technically, but in one sense really in the wrong. No doubt the publications did not cause any damage to the pursuer, and the pursuer ought not to have gone on with the action; but still the verdict of the jury shows that in one sense the pursuer was right in raising the action.

Accordingly I think that the motion of the defenders, so far as it asks expenses prior to the date of the tender, should be refused, that we should apply the verdict, and in accordance with ordinary practice where there has been a tender, find the defenders entitled to all expenses since the date of the tender.

Lord Justice-Clerk—I am of the same opinion. When a case such as this is brought, and the Court see fit to send it to a jury, it is a proper case of an action of damages, and the law implies, if the facts are made out, that there was damage. The jury cannot find a verdict for the pursuer—where the claim is for damages—without finding some damages due, but there are cases in which the facts present themselves so unsatisfactorily for the pursuer that the jury, although the pursuer is entitled to a verdict, may give a very small sum of damages as was done in this case. There are also cases in which the purpose of the action, although it may take the form of an action of damages, is to establish some particular fact of importance to the pursuer, and he may often not ask any substantial damages, and in such a case, the jury being required to find damages due, will award just a nominal amount.

In the case where the verdict is given for a very small sum, it is, in the first place, for the judge who tried the case to consider, as your Lordship did in this case, the question whether he would give a certificate that the action was properly raised for the vindication of character. I have heard from your Lordship that you would not have given such a certificate.

Further, there is the case where nominal

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