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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cunningham v. Duncan & Jamieson [1889] ScotLR 26_316 (2 February 1889) URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0316.html Cite as: [1889] SLR 26_316, [1889] ScotLR 26_316 |
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In an action of damages brought against the publishers of a newspaper for alleged libels contained in an editorial article and a series of letters purporting to come from a number of independent writers, which had been published in the defenders' newspaper, the pursuer averred that the defenders were themselves the authors of both article and letters, and he lodged a specification craving diligence to recover the manuscripts of the article and letters and any books or writings relating to their authorship and composition. The issue taken by the pursuer related only to the publication of the alleged libels.
Held that the pursuer was entitled to the diligence craved, and to lead evidence in
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support of his averment as to the authorship of the letters in aggravation of damages without putting the question of authorship in issue.
William Cunningham raised this action against Duncan & Jamieson, printers and publishers of the Stirling Observer and the Stirling Saturday Observer, for payment of £1000 as damages for alleged slanders on the pursuer published in these papers.
The alleged libels were contained in a series of letters and one article which appeared in the pages of the Stirling Observer and Stirling Saturday Observer between 6th September and 20th October 1888, and which charged the pursuer with corrupt conduct as a member of the Town Council of Stirling. The letters purported to be from a number of independent correspondents, and were variously signed “Trader,” “Another Trader,” “One More Trader,” “A Baker Street Voter,” “Another Baker Street Elector,” and “Bow Street.”
The pursuer averred—“(Cond. 14) The whole of the said letters and articles published by the defenders as aforesaid not only contain the false, calumnious, and malicious passages before cited, but, whether taken together or separately, were calculated to hold up and expose, and did calumniously and injuriously hold up and expose, the pursuer to public contempt and ridicule. They were part of a systematic plan to destroy or injure the pursuer's respectability, reputation, character, and usefulness as a public man; and they have had the effect of lowering and degrading the pursuer in the eyes of the public. (Cond. 16) … The pursuer believes and avers that the defenders either wrote the said letters or procured them to be written for publication in their said newspaper. The defenders have declined to give the pursuer any information or any satisfaction, and in these circumstances the present aetion has been rendered necessary. The sum sued for is reasonable reparation in the premises.”
The defenders denied these averments.
The defender pleaded—“(2) The statements complained of being only fair comments on the public conduct of a public man, they do not form a ground of action. (3) The pursuer having suffered no damage, the defenders should be assoilzied.”
On 15th December 1888 the Lord Ordinary ( Fraser) approved of an issue for the trial of the cause, which was to the following effect—“It being admitted (1) that the defenders are the printers and publishers of the Stirling Observer and Stirling Saturday Observer newspapers, and (2) that the defenders published [then followed a reference to the letters and the article and the dates of publication]—Whether the said statements, letters, and article, printed in the appendix hereto, or any of them, or part of them, are of and concerning the pursuer, and falsely and calumniously represent that the pursuer being a member of the Town Council of Stirling took advantage of his position to make money to the town's great hurt, that he had been bribed by the Caledonian Railway Company to betray the interests of the burgh in favour of the said Caledonian Railway Company, that he was a two-faced man, and a Judas, and ought to be shunned; or make similar and calumnious representations of and regarding the pursuer, to his loss, injury, and damage?”
(Subjoined was an appendix in which the letters and article were set out at length).
The following specification of books and writings for the recovery of which a diligence was asked was thereafter lodged by the pursuer:—“1. The manuscripts of the various letters referred to in the 5th, 6th, 8th, 9th, 10th, 11th, and 12th articles of the condescendence, and the manuscript of the newspaper article mentioned in the 7th article of the condescendence, or the manuscripts of the writings or documents embodying the said letters or article. 2. The business books of the defenders for the period between 1st August and 5th November 1888—including diaries, journals, memoranda-books, note-books, letter-books and cash-books—that excerpts may be taken therefrom of all entries therein relating to the said letters or article, or any of them, or to the authorship, composition, or publication thereof, or to payments made by the defenders on account thereof, or in connection therewith. 3. All letters received by the defenders during the foresaid period relating to the letters or article in question, or to the authorship or publication thereof, and all receipts received by the defenders for payments by them on account of, or in connection with, the said letters or article. 4. All letters received by the defenders during the months of September and October 1888, from the pursuer and his law-agent regarding the publications in question. 5. Failing principals, drafts, scrolls, duplicates or copies of the foregoing,”
On 9th January the Lord Ordinary granted diligence at the instance of the pursuer for the recovery of the books and writings mentioned in the specification with the exception of those mentioned under the first three heads thereof.
The pursuer reclaimed, and argued—He was entitled to obtain the diligence craved under these heads of the specification, for he had averred on record that the defenders were the authors as well as the publishers of the letters containing the libels. The fact of that averment having been made distinguished the case from Lowe v. Taylor. The diligence craved was necessary to enable the pursuer to meet a defence that the defenders had only published letters sent to them by various electors, and that, therefore, though there might be legal malice, there was no active malice. It was not necessary that the question of the authorship of the libels should be put in issue. If the defenders would be entitled to prove to the jury the state of mind with which they published the writings, with a view to mitigation of damages, the pursuer was entitled to enter upon a similar proof in aggravation of damages. The pursuer would therefore be entitled to prove to the jury that the defenders were themselves the authors of the writings they published, without putting that question in issue, in aggravation of damages— Merivale v. Carson, December 1, 1887, L.R., 20 Q. B. 275; Brims v. Reid & Sons, May 28, 1885, 12 R. 1016; Pontifex and Wood v. Stevenson, December 7, 1887, 15 R. 125; Odger on Slander (2nd ed.) 309; Scotland v. Thomson, August 8, 1776, F.C., and 2 Hailes 669; Auld v. Shairp, July 14, 1875, 2 R. 940, opinion per Lord Neaves, p. 950; Cooley v. Edinburgh & Glasgow Railway Company,
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December 13, 1845, 8 D. 288. Argued for the defenders and respondents—The publisher had taken the responsibility of the alleged libels which had appeared in his newspaper on himself, and the pursuer was not entitled to the inquiry he asked for, which might disclose the names of third parties not represented in the action— Lowe v. Taylor, June 24, 1843, 5 D. 1261; Brims' case, per Lord President, 1020. At all events, the question of authorship, if there was to be an inquiry into it, must be brought before the jury by being put in issue, and that being quite a distinct question from the question of publication should be brought before the jury in a separate issue.
At advising—
Now, if it be true that there was a systematic plan for the purpose of running down the character of the pursuer as a public man, and if, in prosecution of this systematic plan, the defenders wrote these different letters, as well as the leading article, and gave them the appearance of coming from distinct and independent sources, they certainly were taking means to deceive and mislead the public as to the actual facts that were taking place; because, as the publication stands, they naturally lead the readers of the newspapers, and the public of Stirling generally, to believe that there are a great many people who entertain a very bad opinion of this pursuer, and think that he has been guilty of corruption and malversation of his office as a public man, and that this opinion is by no means confined to the conductors of the Stirling Observer. I apprehend this is calculated to increase very much the damage done to the reputation of the pursuer, because if the opinion of the newspaper alone were concerned, independent persons might have thought—“This is a newspaper scandal, and we cannot take it as true unless we hear more about it.” But if a number of independent persons appear all to be writing to the same effect, the slander becomes more serious in the eyes of the general public.
This aggravation of damage done to the pursuer is a thing which I think it is competent to prove at the trial of the case, and especially when it is averred very distinctly upon record that the damage thus produced arises entirely from the actings of the defenders themselves, the conductors of this newspaper, who falsely represent upon the face of their newspaper that other people, independent writers, agree with them in the view which they took of the pursuer's public conduct. The only difficulty raised on the part of the defenders, as I understand it now, is that if the pursuer means to prove that the newspaper publishers were really themselves the authors, directly or indirectly, of these letters, he must take an issue to that effect, and that the issue as it stands will not enable him to prove that, and therefore this inquiry ought not to be allowed. That is a technical objection, but at the same time it is an objection requiring fair consideration. I do not think it is necessary that the authorship should be put in issue—that is to say, I do not think the pursuer is bound, either in the issue which he has already got, to put authorship as well as publication in issue, or to take a separate issue to authorship. If he put both into one issue he would run this risk, that unless he proved both authorship and publication he could not get a verdict. That objection would not apply if he took a separate issue, but I cannot see the necessity of a separate issue at all, because the only purpose for which this evidence is sought is to show what was the state of mind of the writers of these letters, or what was the state of mind of the writer of the editorial article, who was himself, it is said, the author of the apparently independent letters which appeared in the newspapers.
I think if that is established it will go to aggravate damages considerably, and I think it is a legitimate ground of aggravation, just as it would be a very good ground for mitigation of damages if the defenders could show that the whole of these letters, or at all events the editorial article, was written under a very strong impression that there were good grounds for believing what was said. It would be very difficult to reconcile the rule which we have established regarding mitigation of damages by an examination of the whole circumstances surrounding the publication of the libel or the uttering of the slander, with a rule which would exclude, on the other side, circumstances tending to aggravate damages. You must admit circumstances, and this is just one of the cases in which, I think, the circumstances alleged may very fairly be put in evidence for the
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I was a little struck at first sight by the suggestion of Mr Thomson, that this diligence may disclose the authors of these letters to be third parties who are not here represented. It would not be desirable that that should be so, but at the same time I cannot say that I have much sympathy with writers of anonymous letters containing very calumnious statements, and I think they will have no very great reason to complain even although in furthering the ends of justice it becomes necessary to drag them from their lurking place, and therefore I dismiss this consideration altogether in disposing of the case. I am for granting the diligence in the terms asked.
But while I feel the force of that very strongly, I am satisfied at the same time that our law has allowed evidence of this kind from the earliest date in which cases of this class have arisen. One element in the estimation of damages which a jury is fairly entitled to take into view is solatium for injured feelings. It may be that in estimating the injury in that respect—the solatium to be given for injured feelings—the amount may vary according to the malice of the libeller and of the circumstances in which the libel was written, and the law has, as I say, from the earliest times admitted proof of the state of mind of the libeller, whether he be the writer of the article or the publisher of the article, or both writer and publisher, as is alleged in this case. I think Mr Guthrie Smith was able to show us from the statement of Lord Hailes in the case of Scotland v. Thomson that so early as 1776 evidence of that kind was admitted in aggravation of damages, although it cannot be, as I have said, that the proper measure of damage would be affected by the state of mind of the writer. In the case of Scotland the illustration given was this, that “words faulty in themselves may be more easily excused when uttered of suddenty, or from provocation, than the same words will be when, after premeditation, they are printed or uttered from the pulpit.” So, I take it, that we have again and again allowed evidence in trials of this kind as to whether the article was written in irritation or on provocation, or whether it had emanated purely from the imagination of the writer. Even in the very last case of this class— Browne v. Macfarlane, January 29, 1889, 26 S.L.R. 289—the ground of judgment was that the jury ought to have the surrounding circumstances before them, including the state of mind of the writer. I think that branch of the law is also illustrated in the case of Coolley. There a person was injured in a railway accident, and the proper question was as to the extent of injury, but the Court resisted the proposal on the part of the railway company to put that question simply into the issue. They held the jury should be in possession of the whole circumstances in which the injury arose, obviously in the view that the nature of the fault might to some extent affect the amount of damages. If it were one of these cases where an accident occurred though all ordinary precautions had been used, then they would be in favour of the company; if, on the other hand, it was a case of gross fault and neglect of duty, that might be an aggravation of damages. Whatever may be said as to the logical reasoning, it undoubtedly was so decided, and the principle has been followed since, for in no case has the question of fault been excluded.
Taking that to be the law and practice which has continued for so many years, the application of it to this case I think is quite clear. If we refuse to allow this evidence, then the publisher goes to the jury, saying—“You must assume that all these letters came from bona fide members of the public, who were heartily disgusted
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I think the case is distinguishable from the case of Lowe v. Taylor, because in that case there was no suggestion that the letters were not letters from bona fide third parties. The argument was taken on the footing that they were from bona fide third parties, and it was held that as the editor chose to take the responsibility there could be no inquiry behind him. This case is different, because of the averment that the publisher himself was the author.
There remains only the question as to whether there should be a separate issue, and while I agree with your Lordship upon that point, I am of opinion that the issue proposed is quite sufficient. The issue puts it thus—these articles have appeared in the paper, and the question is whether they are of and concerning the pursuer, and calumniously represent what is there stated—that is, whether the publisher has so represented, for practically he takes the position of having published them. In that question it appears to me to be simply a point of more or less damages whether he wrote the letters as well as published them. If he published them only, and published them in circumstances that he got them from bona fide third parties, the damages would be smaller in amount than they would be if he wrote the articles himself, but that is merely a case of aggravated circumstances of publication, and I am of opinion that it could be proved in the issue we now have before us. On these grounds I think the diligence is not too sweeping, and I am of opinion that it ought to be granted.
The Court recalled the Lord Ordinary's interlocutor, and remitted the case back to him to grant the diligence as craved.
Counsel for the Pursuer— Guthrie Smith— Wilson. Agent— Andrew Newlands, S. S.C.
Counsel for the Defenders— Comrie Thomson— J. A. Reid. Agent— William Duncan, S.S.C.