CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1824.
2
d Division.
No. 35.
John and
George Taylor,Appellants.—Jeffrey—R. Bell
v.
Archibald Swinton,W. S. Respondent.—A. Wood
June4.
1824.
Lords Craigie and Cringletie
.
Subject_Slander — Reparation. —
Circumstances in which (affirming the judgment of the Court of Session) an action of damages, founded on alleged slanderous expressions made use of in judicial proceedings, was sustained.
Mr
Archibald Swinton, writer to the signet, having been employed as agent for some of the creditors of the York Buildings Company, in the various proceedings that took place in Scotland for the division of their funds; and the late Mr John Taylor, writer to the signet, having been employed in the same capacity for other creditors—Mr Swinton, in 1811, and after the death of Mr Taylor, published a pamphlet or statement, addressed to the creditors in general, in which he represented, that Mr Taylor was accountable to them for large sums; and in which, after suggesting that the creditors should take joint measures for bringing Taylor to an account, he represented, that the creditors need not be afraid that they would run any risk of involving themselves in any unprofitable expense, for he “begs it to be distinctly understood, that the concurring
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creditors are not to be called upon for any advance, but merely to contribute out of their future dividends in proportion to the dividends of the principal creditors.” At the same time he inserted advertisements in various newspapers, informing the creditors that there Were still dividends due to them; and recommending them either to apply to himself or to Mr Mundell, solicitor in London; and it was also alleged, that he sent copies of the pamphlet to all the creditors, and caused it to be circulated extensively throughout the country. The grounds on which it was stated in this pamphlet that Taylor was accountable to the creditors was, that he, together with a Mr Lloyd, a solicitor in London, (who had also been employed as agent for several of the creditors), had been guilty of a long continued and systematic series of frauds, by which they had appropriated to themselves upwards of L. 130,000. Taylor being dead, the appellants, who were his sons, presented a petition and complaint to the Court of Session against Mr Swinton, complaining of this pamphlet, and praying for censure, fine, and damages. This complaint was met by defences, both on the competency and on the merits —Mr Swinton alleging that a summary proceeding was incompetent, and that his statements were well founded; but that the Court could not enter into an investigation without doing prejudice to various actions which had been instituted, and were in dependence against the representatives of Taylor, for restitution of the funds intromitted with by him. After a great deal of procedure, their Lordships dismissed the complaint, “in respect that the Court cannot hoc statu investigate the facts contained in Mr Swinton's statement;” and they found him entitled to expenses, but subject to modification.
In the course of these proceedings, language of a very intemperate nature had been made use of by the appellants against Mr Swinton; and it was alleged, that he had retorted in a mode equally as offensive. After the petition and complaint was dismissed, (and which it was alleged by Mr Swinton had been extensively circulated by the appellants extrajudicially), he brought an action of damages against them, in which he set forth, “that the defenders, contriving, and most wickedly and maliciously intending to ruin, if they could, the pursuer's character and reputation, not only with his employers, the creditors of the York Buildings Company, but with the Lords of Council and Session, and with the public in general, and to bring him into public infamy and disgrace, by causing it to be suspected and believed, that, by preparing and communicating the statement
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aforesaid, he had been guilty of maliciously and wantonly disseminating publicly and openly what he knew to be false and unfounded calumnies upon the character of their father, the said John Taylor, deceased; and of likewise, thereby, for his own emolument, inviting and encouraging the said creditors to institute against them, the said defenders, what he knew to be unjust and groundless actions, upon the improper and invidious offer, that if he were employed to conduct them, the parties should be put to no expense if he did not succeed: And the said defenders further most wickedly and maliciously intending and devising to induce, as well the said creditors to dismiss him the said pursuer from their employment, as the Lords of Council and Session to censure and punish him as guilty of the offences aforesaid: And the said defenders, in the last place, most illegally and unjustly designing to stifle all inquiries into the state of accounts betwixt their said father and his employers, the said creditors of the York Buildings Company, and expecting and trusting, that if they could destroy or injure the pursuer, they would thereby for ever discourage and intimidate the creditors, or any person to be employed for them, from at any time inquiring after their rights;—had the audacity and temerity to compose, print, and publish, or cause to be composed, printed and published, a most false and injurious libel against the pursuer, under the shew and form of a legal proceeding, against him, viz. under the shew and form of a petition and complaint, addressed and presented in their names to the Lords of Council and Session; in which petition and complaint the said defenders did most falsely, wickedly, and maliciously, set forth a variety of injurious, malicious, and libellous matter against the pursuer, and of and concerning him, his conduct as an agent of the creditors of the York Buildings Company, and of and concerning the information given in said statement to the creditors; describing him as a propagator of falsehood, —an incendiary of litigation, —a mendicator of employment, —an attorney prowling for prey, and a nuisance to society; and representing him as unfit for the employment, and unworthy of the confidence of the creditors; as a disgrace to the profession to which he belongs, and as having behaved in so reprehensible and barefaced a manner, as to merit being suspended from the exercise of his profession; with many other opprobrious, scurrilous, and injurious epithets and accusations, all intended to vilify, calumniate, defame, and traduce him, the said pursuer, as will be made manifest by reference to the said petition and
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complaint from beginning to end. By means of which petition and complaint, by the passages therein before quoted, and others of similar import, to be pointed out and referred to in the course of the proceedings to follow hereupon, and by publishing, dispersing, and circulating copies of the said petition and complaint in London, Edinburgh, and other places, among all and sundry who chose to receive them, and to which they were invited by notices advertised in the public newspapers, the said defenders traduced, defamed, and vilified the said pursuer, and used every endeavour to bring him into discredit and contempt, as well with the said creditors of the York Buildings Company, as with the public at large: In consequence whereof, the pursuer has not only suffered, or might have suffered materially in his character and reputation, to his great patrimonial loss, but was likewise put to a great deal of trouble, loss of time, and expense, in defending himself against this most injurious, calumnious, ill-founded, and malicious complaint; and is therefore entitled to recover from the said defenders exemplary damages in solatium and reparation of the great injury thus committed against him. Therefore it ought and should be found, by the decree of the Lords of Council and Session, that the said defenders composed, printed, and published the petition and complaint libelled on, or caused the said petition and complaint to be composed, printed, and published; and that the said petition and complaint contains a variety of false, injurious, and libellous matter, to the great hurt and prejudice of the pursuer's character and reputation, tending to vilify, defame, and traduce him in the estimation of his employers and others; and thereby have been guilty of a gross libel against him. And the same being so found and declared, the said defenders ought and should be decerned and ordained to make payment, conjunctly and severally, to the said pursuer, of the sum of L. 5000 sterling, or of such other sum as our said Lords shall be pleased to modify in name of damages and expenses.” On the other hand, the appellants brought a counter action, founding on the matters alleged to be libellous in Mr Swinton's pamphlet, and also in his pleadings in regard to the petition and complaint, and in which they concluded for L. 10,000 of damages. In defence, the appellants maintained generally, that as the expressions on which Mr Swinton's action rested had been made use of in judicio, they could not infer damages. After ordering a condescendence by Mr Swinton, Lord Craigie found, “That the petition and complaint libelled on was, in substance as
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well as in form, and in many of the circumstances attending it, improper and highly injurious to the pursuer; and that although, in the pleadings which followed on the pursuer's part, there was much intemperance, and several improper expressions, these cannot be considered as sufficient altogether to deprive the pursuer of the redress that would otherwise have been competent to him: That although the amount of the redress thus due to the pursuer may be in some degree affected by the ultimate result of the process now depending in Court, in which the parties are interested either individually or professionally, there must still remain a just claim to a certain extent competent to the pursuer against the defenders for damages, and for the expenses incurred in obtaining the same: Therefore, and as the pursuer insists for an immediate determination, finds the defenders, conjunctly and severally, liable in damages; modifies the same to 200 guineas, and decerns: Finds the defenders also liable in expenses:” and at the same time assoilzied Mr Swinton from the action at the instance of the appellants, with expenses. Both parties having represented, the Lord Ordinary sisted proceedings till farther progress had been made in the actions by the creditors against the appellants; and thereafter, the case having been remitted to Lord Cringletie, and Mr Swinton having consented that the relevancy of the appellant's action should be sustained, his Lordship accordingly did so; and at the same time “repelled the objections of Messrs Taylors, defenders, to the relevancy of the action against them at Mr Swinton's instance, for damages.” And his Lordship expressed his opinion in the following note:—
“It may be true and quite proper, that rash and injurious words, either spoken or written, but particularly when spoken by an advocate in the course of his pleading for his client, and when not irrelevant to the matter at issue, nor maliciously spoken or written, should not be actionable; but the Lord Ordinary considers, that even the character of a Counsel does not protect him if malice be at the bottom, and the inductive cause of his pleadings; and far less will the client himself be protected, when he maliciously and falsely (indeed wilful falsehood implies malice) instigates his Counsel to lay before a court of justice a false and malignant charge against an individual; and this is the doctrine quoted by Messrs Taylors themselves in page 14. of their memorial.
But this is just what Mr Swinton libels. He libels an injury; and that this was inflicted by the Messrs Taylors contriving,
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and most wickedly and maliciously intending to ruin, if they could, the pursuer's character. Whether this be true or not, the Lord Ordinary knows not, and it is not his province to try it; but, if it be true, he considers it is of no consequence whether it was done in the course of judicial pleadings or not, except, that being done in a court of justice, whose part it is to protect the innocent, it is an aggravation of the offence. And Mr Swinton further libels, that the injury was increased by the defenders not even confining their libel to that Court, but by their publishing it wherever they could.”
The appellants having reclaimed, the Court, on the 8th June 1821, adhered.
*
They then entered an appeal to the House of Lords, in which they maintained, that as the action which they originally raised against Mr Swinton, in the form of a petition and complaint, was undoubtedly competent, and had only been dismissed in hoc statu; and as that complaint rested upon the foundation, that the statements contained in Mr Swinton's pamphlet were false and malicious, and had been made for the improper purpose of inducing creditors to employ him to raise actions against the appellants, they were entitled to bring before the Court the various motives by which he had been influenced, and to characterize them and his whole conduct in language as strong as they thought fit, seeing that these motives were pertinent to the issue, which was, whether he had been guilty of propagating the libellous falsehoods, inciting parties to litigation, and mendicating employment; and that they were the more entitled to do so, as Mr Swinton not only attempted to maintain the truth of his allegations, and the justifiable nature of his conduct, but made use of expressions against them of a calumnious nature, which he must have been aware would not be submitted to, and could have the effect only to produce retaliation. They therefore contended, that at least so far as regarded the statements which had been made in judicio, and which had not been ordered to be expunged by the Court, and which must consequently be considered as having been held to be pertinent, and not liable to objection, the action at Mr Swinton's instance was irrelevant, and ought to be, dismissed.—On the other hand, Mr Swinton contended, that as his charge against the appellants was, that under the pretence and semblance of a judicial proceeding, which had been dismissed, they had wickedly and maliciously slandered
_________________ Footnote _________________
* See 1. Shaw and Ballantine, No. 71.
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him in the grossest manner, with the intention of ruining him in his profession and character; and as their statements were not pertinent to the issue, and it was averred by him that they had extrajudicially circulated the petition and complaint—the action was perfectly relevant; and, at all events, it was proper that it should be remitted to a jury, where, upon the facts being proved, the law would be laid down by the presiding Judges, as to whether they were slanderous and relevant to infer damages or not; and consequently the judgments complained of ought to be affirmed.
The House of Lords ordered and adjudged, “that the appeal be dismissed, and the interlocutors complained of affirmed; and it is further ordered, that the cause be remitted back to the Court of Session, to do therein as may be just and necessary.”
Appellants' Authorities.—6. Bacon's Abridg. 199. 244, 245.; Hodson and Scarlett, 1818, (Barn, and Ald. 232.); 3. Dow, 377.
