Scottish Court of Session Decisions

Lord President—The question is whether this case should be sent to a jury, or whether, as the respondent moves us to do, we should send the case back to the Sheriff-Substitute. There is no doubt that in an appeal under section 30 of the Sheriff Court Act 1907 this Court has a discretion to take the latter course. It appears from the record, and particularly from the averments of the pursuer, that the slander complained of was an incident occurring in the course of a midnight meeting between the parties in Argyle Street, Glasgow, which was attended with a considerable display of temper, and in which it is very likely that a number of verba volantia were exchanged. The question whether the words used amounted to a slander will have to be determined according as the circumstances, when established in evidence, reveal the whole affair to have been in the nature of a rixa, or on the other hand justify the imputation to the defender of slanderous intention. We were referred to Greer v. Corporation of Glasgow ( 1915 S.C. 171) as containing a definition of the class of case in which the Court ought to exercise its discretion by remitting back. That case referred to a claim in respect of physical injuries, and what I venture to think a sound general rule applicable to actions of that character was laid down to the effect that if the physical injuries founded on appeared to be such as would not reasonably warrant a verdict of more than £50, then the case should be regarded as one which is not of sufficient importance to warrant the elaboration and expense involved in a trial by jury in this Court. I hesitate, however, to apply generally to actions of slander a rule which measures the importance of the cause simply by the amount which a reasonable verdict would not exceed. For the importance of an action which involves character is not necessarily. measured either by the amount of damages to which a pursuer restricts his claim, or by the amount which a jury might reasonably award. But whether a particular measure is applicable or not, I think the real underlying consideration is the same in all cases, namely, the relatively serious or relatively trivial character of the action as that is revealed by the pleadings. I have already indicated what I think is the substance of the pursuer's averments in this case, and I cannot think that it is one which it is reasonable to send to a jury in preference to allowing the proof to be taken before the Sheriff-Substitute. I am therefore for exercising our discretion by sending the case back.

Lord Mackenzie—I am of the same opinion. It was not disputed by Mr Duffes that this case belongs to a class in which the Court may exercise their discretion under section 30 of the Act of 1907. When that is admitted it only remains for me to say that I cannot conceive of a case more appropriate for the exercise of that discretion, because the circumstances as disclosed upon record show that whatever language was used was used in the course of a street squabble.

As regards the rule laid down in Greer's case ( 1915 S.C. 171), that is a good working rule for cases of personal injury, but as regards actions of damages for slander I do not know that it is necessary to lay down any hard-and-fast rule. Each case must be disposed of upon its own circumstances.

Lord Skerrington—I agree with your Lordships. The test whether an action is suitable for trial by jury is different in a case where character is involved from what it is in a case where the whole question is one as to the extent of a physical injury. None the less we must be satisfied that a case proposed to be sent to a jury is reasonably suitable for that form of trial. The relevancy of this action is not disputed, but the surrounding circumstances savour strongly of a brawl or squabble. I think that it is not a case suitable for jury trial, and that it is well suited to be tried by the Sheriff-Substitute in the district where the cause of action arose.

Lord Cullen did not hear the case.