Scottish Court of Session Decisions

John Harvey, writer in Lanark, and procurator in the Sheriff Court there, raised this action against the Sheriff-Substitute of Lanarkshire, residing in Lanark, concluding for £1000 of damages and solatium due to him in consequence of the defender having slandered him while debating a case in the Sheriff Court. The expressions complained of were “that the pursuer was an insane man,” and “that he was a juggler,” and further, “that he was a liar.”

The defender admitted that on the occasion referred to he had occasion to observe on the manner in which the pursuer was conducting the debate before him; but pleaded—“(1) The action is incompetent in the Sheriff Court of Lanarkshire, or any other inferior Court. (2) There being no case stated by the pursuer relevant to infer that the defender acted in the matter complained of extrajudicially, beyond his powers or competency as a Judge, the action is not maintainable to any effect. (3) The defender, having in the matter complained of acted regularly in the exercise of his judicial functions, in good faith and with probable cause, and the contrary not being relevantly or competently averred, the action is untenable. (4) Generally, the action being raised against a judicial functionary in respect of matter occurring in the course of his judicial functions, and for alleged damage said in consequence to arise, is an incompetent action, and the statements thereof are not relevant to infer the conclusions.”

The Sheriff of the county remitted the case to another of his Substitutes ( Galbraith) who sustained the 1st, 2d, and 3d pleas, and assoilzied the defender. In a note annexed to his judgment he assigned as his ground of judgment the incompetency of dealing with an action such as the present in the Sheriff Court. On the general ground of incompetency he gave no opinion.

The Sheriff ( Dickson) adhered, but added the following note:—

“Note—The Sheriff-Substitute bases his judgment on the ground of his not having jurisdiction to entertain the action, supposing (for the sake of argument) that it were competent in another Court. The Sheriff is not prepared to adopt this view, for which, so far as he knows, there is no authority. He prefers to reserve his opinion upon it as involving a question of difficulty which it is not necessary to decide, seeing that he has no doubt that, upon the authorities quoted by the Sheriff-Substitute, as well as upon principle, the action is incompetent either in this Court or in any other Court.”

The pursuer reclaimed, and argued—The case of Haggart's Trustees v. Lord President Hope, quoted against him, had no application to an inferior Judge. If the Supreme Court had no jurisdiction to entertain this action, what remedy was there? Besides, although a Judge might be protected by his judicial functions to a certain extent, in using the language alleged he ipso facto laid down his judicial position and its privileges.

The defender argued—This case is altogether incompetent. The law is, that a Judge on the judgment-seat has an absolute immunity against actions of damages.

Authorities— Haggart's Trs., June 1, 1821, 1 S. 46, and H. of L. 2 Shaws Appeals 125; Hamilton v. Anderson, June 18, 1858, 3 Macq. 363; Scott v. Stansfield, 3 Law Reports (Exchequer) 220 (CB. Kelly's opinion).

At advising—