Scottish Court of Session Decisions

Brevet-Colonel William Eagleson Gordon, V.C., Easter Moncreiffe, Bridge of Earn, pursuer, brought an action against John Leng & Company, Limited, defenders, for payment of £5000 in name of damages for slander. The pursuer founded upon an article in an issue of the People's Journal, of which the defenders were proprietors, dated 29th December 1917, which was in the following terms:—

“ Begin To-day these Thrilling Revelations.

The Most Daring Man in Hated Sennelager.

What I Saw and Did in Hunland.

By Corporal George Mutch,

Gordon Highlanders.

A short time ago Corporal Mutch was doing punishment in the cells of Sennelager for his third unsuccessful attempt to escape. At his fourth attempt he succeeded in reaching Holland, and is now safe and sound at his home in Mintlaw, Aberdeenshire. In the following narrative this gallant soldier relates some of the amazing experiences that befell him during his three years in Germany. ‘ There is no doubt that you are the most daring man in Sennelager,’ said the Commandant of that infamous German prison camp to Corporal Mutch when handing him over for trial by Court-Martial for ‘ insulting’ a German sentry. His words were not new to the Gordon Highlander. He had long been recognised by his comrades and captors as the most adventurous spirit in the camp.

It's no use fighting any longer, men. It is only a useless sacrifice of life. We'd be better to put down our arms and surrender.’

That day in September 1914, when Colonel Gordon, of the Gordon Highlanders, gave us the above order, was, I believe, the most eventful of my life, crowded with excitement though it has been during the past three years.

Page: 311↓

It was just after our famous retreat from Mons. Having been a regular soldier at the outbreak of war, I had been drafted with my regiment to the front at the very beginning of the war, and took part in the battle which ended in the historic retreat. Our battalion, or rather what remained of it, consisting of some 600 men, under Colonel Gordon and Colonel Neish, found itself separated from the main forces, then retreating. We knew that the enemy must be close on our heels, but we never guessed that they had actually cut us off.

We sent out two scouts to see how the land lay, and they returned with the report that the road seemed all clear in the direction of the village of Auden court. Here lay our chance of slipping through to our own lines. For five kilometres we marched down that hot and dusty road. We were all very footsore and weary, and had had practically nothing to eat for three days.

Dusk was beginning to fall as our long weary line straggled into Audencourt, when suddenly a few rifle shots rang out ahead of us. The first thought that jumped to my mind was that some Frenchmen had mistaken us for the enemy, and were opening fire on us. The fusillade increased, and men began to fall on both sides.

In the van shouts were raised to show that we were British, but the firing continued. In the dusk we could see figures in the fields on each side of the road, and a young officer went out to investigate. He returned with the report that the Germans had completely surrounded us. About the same time a German officer, evidently under the impression that we were surrendering, came right down to our ranks. We quickly let him know by making him a prisoner that we were not giving in so readily.

Captured.

Then we opened fire on the enemy. As we were a splendid target for them, however, and they were almost invisible to us, it was plain that very soon we would be competely wiped out. We could neither advance nor retire, and gradually the Germans closed in about us. After about twenty minutes, Colonel Gordon ordered us to throw down our arms, and the fight was over.”

The pursuer averred—“(Cond. 1) The pursuer is a brevet-colonel in the army, and at the commencement of the war in August 1914 was senior major in the 1st Battalion of the Gordon Highlanders, then under the command of Lieut.-Colonel Francis Hugh Neish. In August 1914, owing to the circumstances existing at the time of the incident referred to in the article, the pursuer by virtue of his rank was in command of a mixed column consisting of part of the said 1st Battalion of the Gordon Highlanders and companies of the Royal Scots and Royal Irish.… (Cond. 3) The defenders are proprietors of a weekly journal known as the People's Journal, which they advertise as having ‘the largest circulation of any paper north of the Forth,’ and in fact circulates largely in the area from which the Highland regiments are recruited.… (Cond. 5) An officer who surrenders or who is responsible for an order to surrender in the face of the enemy falls to be put under arrest and tried by general court-martial in terms of article 555 of the King's Regulations. For some time past reports have also been current both in Scotland and England, and particularly in the area mentioned in condescendence 3, with regard to the circumstances of the said alleged surrender reflecting injuriously on the conduct of the troops referred to, and in particular on the courage and capacity of their officers, and specially of the officer said to be responsible for the surrender. The existence of the said reports is a matter of common knowledge, and they were well known to the defenders and to the individual members of their firm or company when the said article was published. (Cond. 6) So far as they refer to the pursuer the statements in the said article are false, and at the time when the said article was published were known to be so by the defenders and by the individual members of their firm or company. The pursuer used no such words and gave no such order as is alleged. The said statements were calculated and intended to associate the pursuer with the injurious reports referred to, and in particular to represent to the public that he was the officer responsible for the said surrender and had failed in his duty as a soldier, and they have had that effect, and were false, calumnious, and malicious. The defenders have thus grievously injured the pursuer in his feelings and in his reputation. The explanations in answer are denied in so far as inconsistent with the pursuer's averments. Explained that in fact the men forming the said mixed column under the pursuer's command were willing to have attempted to cut their way out, and but for the said order would have done so with a fair chance of success. In fact a number of the men of the said mixed column did succeed in so cutting their way out. (Cond. 7) The pursuer has ascertained that the said article was not written by Corporal George Mutch, but by an employee of the defenders who obtained some information from him. He has also ascertained that the statements in question were not made by the said Corporal George Mutch, but were deliberately inserted without authority or justification in the said article by the defenders. The defenders thus falsely represented to the public that the said calumnious statements were made by and on the authority of the said Corporal George Mutch, and thereby deliberately attempted to secure and did secure for them even greater attention than they might otherwise have obtained.”

The defenders pleaded—“1. The pursuer's statements being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed.”

On 11th December 1918 the Lord Ordinary ( Ormidale) repelled the first plea-in-law for the defenders and assigned a diet for the adjustment of issues.

Opinion.—“This is an action of damages for slander.

The defenders moved me to sustain their first plea-in-law and to dismiss it.

They maintained in the first place that the averments of the pursuer, especially

Page: 312↓

with regard to the reports condescended on, are too vague and indefinite to be submitted to probation.

I have no difficulty in repelling that ground of objection.

The reports whose nature is disclosed in condescendence 5 are said to have been current not only for some time past, but prior to the date when the article referred to in condescendence 4 was published—for they are said to have been known to the defenders when the article was published.

It is further said that they were current both in Scotland and England, and particularly in the area in which the defenders' newspaper largely circulates—the area from which the Highland regiments are recruited.

The defenders appear to me to have been given sufficiently specific notice of the case which is to be made against them on this head.

In the second place the defenders maintained that the statements contained in their article of 29th December 1917, including the statement of which the pursuer more particularly complains, namely, that the pursuer gave an order to the troops under his command to surrender, are not calumnious,

I am not prepared to hold that to say of an officer that he gave an order to surrender is necessarily and always to slander him.

Here, however, the circumstances are somewhat special.

Taking the pursuer's averments, the statement that he gave the order to surrender is not only false but was known to the defenders to be false. The mere fact that according to the corporal who is put forward to tell the story the circumstances were such as justified the surrender is of little relevancy if the story as a whole or of the part played by the pursuer has no foundation in fact. Now the statements were not the statements of the corporal at all. They were, according to the pursuer, deliberately inserted by the defenders without authority or justification. They were intended to associate the pursuer with reports which reflected both on the conduct of the troops engaged and on the courage and capacity of their officers, and especially of the officer said to be responsible for the surrender. The pursuer goes on to innuendo them, though I hardly think that an innuendo was required—to represent that he was the officer responsible for the surrender and had failed in his duty as a soldier. That is not an extravagant innuendo.

In my judgment such false statements so made convey a direct aspersion on the character, capacity, and conduct of the pursuer, and are defamatory.”

The defenders reclaimed without leave of the Lord Ordinary, and the pursuer objected to the competency of the reclaiming note.

Argued for the defenders—The interlocutor assigning a diet for the adjustment of issues was an interlocutor importing an allowance of proof and might be reclaimed against without the leave of the Lord Ordinary— Little v. North British Railway Company, 1877, 4 R. 980, 14 S. L.R. 608, Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 28. The case of Brown v. Virtue & Company, Limited, 1889, 16 R. 987, 26 S.L.R. 675, founded on by the pursuer was not in point because no question of relevancy was raised in that case.

Argued for the pursuer—Even if the reclaiming note was competent it was inconvenient and ought to be refused— Brown v. Virtue & Company, Limited, cit. sup.