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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Murchy v. Maclullich [1889] ScotLR 26_421 (5 March 1889) URL: http://www.bailii.org/scot/cases/ScotCS/1889/26SLR0421.html Cite as: [1889] SLR 26_421, [1889] ScotLR 26_421 |
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Page: 421↓
[
(Ante, May 21, 1887, vol. xxiv. p. 514.)
In an action of damages for slander, the Court, holding the pursuer's statements irrelevant, assoilzied the defender from the action as laid, and found him entitled to expenses.
The pursuer, without having paid these expenses, raised a new action against the same defender in respect of the same alleged slander, making certain new averments which would have been capable of being added by amendment if he had so moved in the previous action.
Held that he must pay the expenses in the previous action as a condition of insisting in the new one.
In 1887 Donald M'Murchy, sometime Police-Sergeant at Oban, brought an action of damages for slander against Peter Campbell, late Inspector of Police, Oban, and John Campbell Maclullich, S.S.C., Procurator-Fiscal, Inverary.
The ground of action was that the defenders on 19th September 1885, “acting in concert together, or separately, or one or other of them,” prepared a report concerning the pursuer which they sent to Colin M'Kay, Chief-Constable of Argyleshire. The report charged the pursuer with immoral and improper conduct when on duty. He averred—“These statements regarding
Page: 422↓
the pursuer are unfounded and malicious falsehoods, and represented the pursuer to have acted as an immoral and dissolute person, and to be unworthy of employment in the police force.” The above-mentioned false and calumniouscharges against the pursuer were made and circulated by the defenders maliciously and without any just and probable cause. The defenders were actuated by a feeling of ill-will against the pursuer, and a desire to damage his character and deprive him of his situation in the police force. Upon 25th March 1887, as previously reported, the Lord Ordinary ( Lee) found that the pursuer's allegations were not relevant or sufficient to support the action, and found the pursuer liable to the defenders in the expenses of process, and assoilzied the defenders from the conclusions of the summons. Upon 21st May 1887 the Second Division adhered, with additional expenses. The pursuer was charged to make payment of the taxed amount of the expenses to the defenders in the case of Campbell, amounting to £33, 1s. 10d., and in Maclullich's case £32, 8s. The pursuer, however, did not pay these sums, and on 21st September 1888 decree of cessio was pronounced against him at the instance of the agents for Campbell.
Upon 5th July 1888 M'Murchy, who had not paid these expenses, raised actions of damages for slander against Peter Campbell and John Campbell Maclullich, the defenders in the former action.
The ground of action was the same alleged slander as in the previous case, but the pursuer stated further in the action against Maclullich that the defender “was, in making said false statement or report, actuated by a feeling of revenge and ill-will towards the pursuer, owing to the pursuer having reported on the 14th September 1885 to the Chief-Constable Peter Campbell, then an Inspector of Police at Oban, for irregularities and misconduct. A copy of said report is herewith produced and referred to, and the said Peter Campbell, who is said to be a relative of the defender, made a complaint at Oban on the 18th September 1885 to defender, who was in Oban on that date, taking precognition in a case of housebreaking and theft, and informed him that he was reprimanded by the Chief-Constable upon the pursuer's report, and the defender undertook to support and aid the said Peter Campbell to obtain the dismissal of pursuer from his situation on the police force by sending the aforesaid private calumnious imputation against the moral character of the pursuer, maliciously and recklessly, for the purpose of aiding said Peter Campbell, and was thus actuated by a feeling of revenge and ill-will against the pursuer with a view of damaging his character and depriving him of his situation on the police force, well knowing the same to be false.”
The defender Maclullich pleaded—“(2) The pursuer's averments being irrelevant the action ought to be dismissed. (3) The pursuer being insolvent, ought to be ordained to find caution for expenses.”
In the other action against Campbell the defender pleaded—“The pursuer is not entitled to proceed with the present action to any extent until he has paid the expenses awarded against him in the former action.
The Lord Ordinary ( Wellwood) pronounced the following interlocutors in each action:—
23 rd November 1888.—The Lord Ordinary having heard the pursuer and counsel for the defender, in respect the pursuer has not paid the taxed expenses found due to the defender in the action at the pursuer's instance against the defender and John Campbell Maclullich, the summons in which was signeted on 12th January 1887, Refuses in hoc statu the pursuer's motion for issues, and continues the cause till the first sederunt day in January next.”
“9 th January 1889.—The Lord Ordinary, in respect that pursuer has not yet paid the taxed expenses found due to the defenders and referred to in the preceding interlocutor, dismisses the action and decerns: Finds the defender entitled to expenses,” &c.
The pursuer reclaimed.
The defender (Maclullich) was permitted to add to his defences, on payment of the expenses incurred in the present action, a plea similar to that for Campbell quoted above.
The pursuer argued—This was an action for vindication of character. The pursuer ought therefore not to be barred from proceeding with his action because he had not paid the expenses in a former action— Buchanan v. Stevenson and Others, December 7, 1880, 8 R. 220. The defenders in this action had already taken out cessio against the pursuer; they had therefore used their only legal remedy, and could not in addition make it a condition of his going on with this action that he should pay the expenses of the preceding one. In the former action the pursuer's agent had not carried out the instructions he received, and made up the record without putting in specific allegations of malice; that was the ground upon which the action was dismissed, but the pursuer in this action ought not to suffer from the fault of his agent in previous transactions.
The defender (Maclullich) argued—The defender had been assoilzied in the former action because the averments of the pursuer were irrelevant and insufficient to support his pleas. The same averments were made in this action, the report to which the pursuer objected, the manner of publication alleged, and the allegations of malice were the same; all that the pursuer had done was to say that he had reported a relation of the defender Campbell for misconduct, and that therefore the defender had conspired against him. That did not make the condescendence relevant against the pursuer, but even if it did, the pursuer could not ask for a proof of his averments until he had paid the expenses in the former action. Any change that the pursuer now made in his averments could have been made by new averment upon record in the previous action. That would only have been allowed to be done on payment of the expenses incurred up to the date of amending the record. The same principle ought to apply here, as in fact the cases were the same— Irvine v. Kinloch, November 7, 1885, 13 R. 172; Wallace v. Henderson, December 22, 1876, 4 R. 265; Struthers v. Dykes, February 10, 1848, 8 D. 815; Macleod, 3 S. 79. The action was not relevant, as it was laid against a public officer in discharge of his duty— M'Murchy v. Campbell, May 21, 1887, 14 R. 725.
Page: 423↓
At advising—
No case was quoted to us which was quite upon all fours with this one, but when we consider the cases to which we were referred, where the pursuer of an action found it necessary to amend his record for the purpose of making a relevant case, we find that he was usually called upon to pay the expenses previously incurred as a condition to his being allowed to make the amendment. I am unable to see any distinction between what was done in those cases and the principle which I think ought to govern this case. In bringing this action the pursuer is just endeavouring to do what he might have done in the former action by adding averments which he thinks will make a relevant case, and that is what he might have done by amendment in the previous case. I am clearly of opinion that if he had proposed to do that there would have been some conditions as to expenses imposed upon him, and I think that the same principle ought to be carried out here.
I think that the case of this defender in asking that the pursuer should be called upon to pay the expenses of the former action before he can proceed is even stronger than if the request had been made upon an application to amend the record, because it is plain that the defender had been put to greater expense in the one case than in the other. I think we must adhere to the Lord Ordinary's interlocutor of 23rd November.
What, then, are the facts of this case. The groundwork of it is the same grievance as in the previous case; it is brought against the same defender by the same pursuer, but at that time he did not present it in a relevant manner, as he had no averment of malice, which might have made it relevant, but these could have been added to the record at any time before judgment was pronounced, and if the pursuer had stated on record facts which would have authorised him to make the averments of malice, he might have asked that they should be added, and the Court would have been bound to allow them in order to get at the real matter in dispute between the parties in terms of the 29th section in the Court of Session Act of 1868. Then it is a matter of familiar practice that an amendment of that character, changing the ground of action completely, is only allowed upon condition of paying the expenses incurred by the opposite party as they have thus been rendered useless. That is the general rule. I assume Lord Lee's judgment in the former case, dismissing the action as irrelevant, to have been right, that the case had been reclaimed, and that before judgment had been pronounced affirming the judgment, that the pursuer had asked leave to amend his record by adding these statements of malice, and had been allowed to do so on condition of paying to the defender the expenses he had incurred. Suppose that was so, and the pursuer did not wish to incur that penalty, but allowed the defender to obtain his decree by not paying the expenses, and then said, “I will reach my end by another way; I will bring a new action, and add these averments so as not to have to pay these expenses,” I think that the Court would have frustrated such an attempt. It may be very true that the irrelevancy for which the first action was dismissed did not arise from his fault; he may have given his agent proper instructions, which were not carried out, but his adversary must be reimbursed in the expenses which he had expended in defending the action. Therefore, in my opinion, the only condition upon which we can allow the pursuer to continue this action is that he should pay the expenses incurred by the defender in the previous case.
Page: 424↓
The Court pronounced this interlocutor:—
“The Lords approve of the Auditor's report on the pursuer's account of expenses: Allow the taxed amount, being £11, 14s. 6d., to be imputed in payment pro tanto of the sum of £33, 7s. 9d., being the taxed amount of expenses and dues of extract found due to the defender in the action at the instance of the pursuer against the defender and Peter Campbell, and the said sum of £11, 14s. 6d. having been imputed accordingly by the counsel for the defender, and the pursuer having made payment to the defender of £21, 13s. 3d., being the balance of said sum of £33, 7s. 9d., open up the record in this cause: Allow the new plea tendered by the defender to be added thereto, and the plea having been added accordingly, of new close the record; and having heard parties further in the cause, recal the interlocutor of the Lord Ordinary of 9th January last; adhere to his Lordship's interlocutor of 23rd November last.”
The pursuer thereafter paid the expenses in which he was found liable in the previous case against Maclullich, and a proof before answer was allowed.
Counsel for the Pursuer—Party.
Counsel for the Defender— M'Kechnie— Forsyth. Agent— Thomas Carmichael, S.S.C.
