Scottish Court of Session Decisions

Lord Justice-Clerk.—I have had an opportunity of reading Lord Dundas's opinion, and I concur in it.

Lord Dundas.—The Lord Ordinary has not furnished us with any note of the grounds upon which he decided to allow the pursuers' issues in these cases. I much regret this, because I should like to have been certain that in arriving, as I have done, at an opposite conclusion, I had duly weighed and discounted the various reasons which led his Lordship to the result he reached. It appears to me that the pursuers have not stated a case on record relevant for inquiry.

The parties are agreed that the first of the two occasions libelled was privileged. The pursuers maintain that the second was not so. I think they are wrong. The limits within which statements, although erroneous in fact and injurious to the character of another, may (in the absence of malice) be protected by privilege, were said by Parke, B., in Toogood v. Spyring, to include those “made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned.” That opinion has since been, as Lord Macnaghten observed in Mackintosh v. Dun, “frequently cited, and always with approval.” In Shaw v. Morgan Lord Young put the matter in very similar language when he said that “if the statement be made in the discharge of a duty or in the reasonable attention to a man's own business and affairs, which gives him legitimate cause to write or speak of his neighbour, the occasion displaces the presumption of malice and the presumption of falsehood, and he is only answerable if malice be shown to have existed in fact, and if the statement be untrue.” Now, what was said by the defender upon the second occasion libelled was uttered by him on the day following the pursuers' dismissal, and addressed by way of explanatory information to the members of the drawing-office staff, to which the pursuers had belonged. It seems to me that, in these circumstances, the defender's statements were plainly made “in the conduct of his own affairs, in matters where his interest is concerned,” and that he had “legitimate cause” to speak of his reasons for dismissing the pursuers with “reasonable attention” to his “own busiuess and affairs.” The matter intimately concerned both the defender and his other employees, and one can see that the pursuers' dismissal, if unexplained by the defender, and possibly misrepresented from other quarters, might have produced results very injurious to the welfare of the business. That is, in my judgment, a sufficient ground for holding the occasion to be privileged. But I should be prepared to hold further that the defender's statements were made in the discharge of a duty, because, to use the words of Maule, J., who delivered the opinion of a strong Court in Somerville v. Hawkins, “it was the duty of the defendant, and also his interest, to prevent his servants from associating with a person of such a character as the words imputed to the plaintiff, as such association might reasonably be apprehended to be likely to be followed by injurious consequences both to the servants and to the defendant himself.“—See also Manby v. Witt .

The defender's counsel argued that, assuming the two occasions to be privileged, as I hold that they were, the pursuers' records disclose no relevant allegations of malice, and that the actions therefore fail. I think the argument is well founded. It was contended for the pursuers that malice was relevantly averred, because it must be inferred from the reckless and intemperate nature of the language used, and the facts alleged as to the abrupt manner of the pursuers' dismissal, without any inquiry or investigation by the defender, who (to quote from A B's record) “maliciously refused to allow the pursuer to make any explanation, and summarily declined to discuss the matter.” In deciding as to the relevancy or otherwise of the pursuers' averments of malice, one must, I apprehend, consider the words attributed to the defender along with the facts known to him (according to the pursuers' records) at the time the statements were made. There is here, be it observed, no suggestion of antecedent malice, or any actual ill-will, spite, or grudge. It appears that the defender was aware that the two young men were shut up together in one of the three W.C.S adjoining the lavatory, a small dark place, for a period of at least ten minutes or thereby. He summarily dismissed the pursuers. One of them having demanded an explanation, the defender used the words quoted in cond. 3. It is to be kept in view that, this occasion being admittedly privileged, the bona fides of the defender in saying what he did is to be presumed. As Lord Macnaghten observed in Jenoure v. Delmege, “The privilege would be worth very little if a person making a communication on a privileged occasion were to be required, in the first place, and as a condition of immunity, to prove affirmatively that he honestly believed the statement to be true. In such a ease bona fides is always to be presumed.” I am unable to discover anything in the words used that can be held to be reckless, extravagant, or unreasonable, or evidencing malice, if the defender believed, under the circumstances above summarised, that the pursuers' conduct was such as to be inconsistent with ordinary human decency. And I take a similar view with regard to the language—very strongly expressed, no doubt—attributed to the defender on the second occasion. I respectfully adopt, as precisely applicable to the present case, what was said by the Lord Chancellor (Lord

Buckmaster) in the recent case of Lyal v. Henderson : “To submit the language used on privileged occasions to a strict scrutiny, and to hold all excess beyond the actual exigencies of the occasion to be evidence of express malice, would greatly limit, if not altogether defeat, the protection which the law gives to statements so made—(see Laughton v. Sodor and Man ). The real question is whether, having regard to the circumstances, the statement is so violent as to afford evidence that it could not have been fairly and honestly made; for the very essence of a privileged occasion is that it protects statements that are defamatory and false, when, apart from the protection, the very character of the statement itself carries with it the implication of malice. If once the privilege be established, unless there be extrinsic evidence of malice, there must be something so extreme in the words used as to rebut the presumption of innocence and to afford evidence that there was a wrong, and an indirect, motive prompting the publication—Spill v. Maule .” I am unable, looking to the circumstances alleged, and to the legitimate presumption of the defender's bona fides, to read the strong expressions used by him as being inconsistent with a fair and honest belief, reasonably entertained by him; and I do not think that a jury could properly, or would be entitled to, regard them otherwise. As to the pursuers' other contentions, I cannot hold that the defender, looking to what he himself had observed, was under a duty to make investigation or inquiry; or that any investigation he might have made would have been likely to be of a fruitful character. Nor do I consider that, having dismissed the pursuers, he was bound to listen to explanations on their part; to decline to do so may or may not have been an error of judgment, but it fell distinctly short of anything like evidence of malice.

I think, therefore, that we ought to recall the Lord Ordinary's interlocutor, sustain the first plea in law for the defender in each case, and dismiss the actions.

It is to be regretted that the future careers of these two young men may be hampered by what has occurred. But it seems to me that, if this should be so, they have mainly themselves to blame. Their conduct, assuming the truth of their own averments, appears to have been amazingly foolish; they have augmented the publicity of the matter by raising these (as I think, ill-founded) actions; and gravely accentuated the scandal by the mode in which, for obvious tactical purposes, the innuendoes have been stated on their records.

Lord Salvesen.—The most interesting question in this case is whether on the second occasion libelled the defender's statement, which we must presume to have been as false as it was defamatory, is protected by privilege. On the occasion in question the defender summoned the whole staff of the drawing-office for the purpose, inter alia, of informing them of the grounds which had led him to dismiss their two fellow-servants, the pursuers in the present cases. These grounds of dismissal involved a grave charge of misconduct against the pursuers. Can the defender in such circumstances plead that the communication was privileged?

The point has not been made the subject of express decision in our Courts; but the circumstances are very similar to those which occurred in the case of Somerville v. Hawkins . Wilde, C.J., ruled at the trial that such a statement made to fellow-servants was a privileged communication, and his ruling was upheld by a strong Court. Maule, J., who delivered the judgment of the Court, said (at p. 589): “We think that the case falls within the class of privileged communications, which is not so restricted as it was contended on behalf of the plaintiff. It comprehends all cases of communications made bona fide, in performance of a duty, or with a fair and reasonable purpose of protecting the interest of the party using the words. In this case, supposing the defendant himself to believe the charge—a supposition always to be made when the question is whether a communication be privileged or not—it was the duty of the defendant, and also his interest, to prevent his servants from associating with a person of such a character as the words imputed to the plaintiff; as such association might reasonably be apprehended to be likely to be followed by injurious consequences, both to the servants and to the defendant himself.” I desire to add that where a master has summarily dismissed a servant for gross misconduct he owes it to himself as well as to his staff to inform them of the reason of the dismissal. If he does not do so his conduct may well be misconstrued or misrepresented; and the relations between him and his remaining employees are very likely to become strained by what, without explanation, might naturally be supposed to be arbitrary and oppressive conduct on his part.

My view then being that the second occasion was equally privileged with the first, the only other question that remains is whether the pursuers have relevantly averred that the defender acted maliciously. Where a defamatory statement is made ultroneously the law presumes malice; but where the occasion is privileged the presumption is that the defamatory words were uttered in the honest belief that they were true. It is not enough for the pursuer to aver facts which are equally consistent with the statement having been made bona fide or maliciously. Cock-burn, C.J., in the case of Spill v. Maule makes this perfectly plain: “Now the presumption of law being in favour of the absence of malice in the defendant, and the only evidence of malice being his description of acts done by the plaintiff, which were capable of a twofold construction, that presumption of innocence which attaches to the writer must also, where his act is capable of a double aspect, still attend him. Starting with the presumption of innocence in his favour, we must assume that the defendant did entertain that view of the plaintiff's acts which induced him to believe, and honestly to believe, and say, that the plaintiff's conduct was dishonest and disgraceful. We have not to deal with the question whether the plaintiff did or did not act dishonestly and disgracefully; all we have to examine is whether the defendant stated no more than what he believed, and what he might reasonably believe; if he stated no more than this, he is not liable, and, unless proof to the contrary is produced, we must take it that he did state no more.” Applying this ruling to the present case I think it is not doubtful that the facts known to the defender, which I assume were capable also of an innocent interpretation, were of such a nature that he might reasonably and without malice draw the conclusion which he expressed to the pursuers and afterwards to their fellow-clerks. There are no averments which point to any antecedent ill-feeling on his part towards the pursuers. He may have drawn a mistaken inference from their conduct—and from the absence of a plea of veritas it must be assumed that he did—but there is nothing in the pursuers' statements on record from which I can infer that he acted maliciously. Assuming that the defender honestly believed that the equivocal situation in which the pursuers had placed themselves was one which could only lead to the inference of misconduct on their part, I cannot see that he used any language in describing that conduct which was not appropriate to the circumstances as he believed them to exist. It was argued however that his refusal to listen to any explanation on the part of the pursuers after he had dismissed them was evidence of malice. In some cases this may be so where a defamatory charge is made on the information of another, and where a slight extrinsic enquiry would have shown that the charge was unfounded. In this case, however, the defender was acting on the evidence of his own senses, and there was no possibility of any extrinsic evidence. The explanation of the pursuers, which presumably would have been on the lines of their averments on record, might well have failed to carry conviction to the defender's mind, and was at all events such an explanation as he might honestly disbelieve. In these circumstances I think the pursuers have failed to make a relevant allegation of malice, and that, accordingly, we ought to dismiss the actions. The only consolation that can be afforded the pursuers is that, as the defender has not asked an issue of justification, it must be assumed that the charge is untrue, and it cannot therefore be repeated by others without their exposing themselves to an action of damages for defamation.

Lord Guthrie.—I have had an opportunity of reading Lord Dundas's opinion, and I concur in it.