Scottish Court of Session Decisions

This was an action of damages at the instance of John Waddell, printer and publisher in Alloa, against Andrew Roxburgh, printer, publisher, and editor of The Alloa Weekly News and District Reporter.

The pursuer averred that in November 1893 the Tillicoultry Burgh Commissioners invited tenders for the printing of the register of voters for that burgh for a period of five years. The pursuer's tender was the lowest and was accepted. For some time previously the defender had borne a groundless ill-will against the pursuer. This he had shown in several instances (which were specified)—“(Cond. 4) In his said newspaper, The Alloa Weekly News and District Reporter of Wednesday 20th December 1893, the defender inserted an article headed ‘Burgh Commissioners,’ and in a note to that article he stated—‘This contract was secured by the lowest offerer in a mean and contemptible manner. We attach no blame to any of the burgh officials, but to the unfair advantage taken by the successful offerer to secure the contract.— Ed.’—meaning thereby that the pursuer had obtained the said contract by dishonest or fraudulent and improper means. The statements and representations contained in said note were made and published by the defender falsely and maliciously to gratify his spite and ill-will against the pursuer, and with the special design and object of injuring the pursuer in his trade as well as in his feelings and reputation, and of exposing him to public contempt. (Cond. 5) The pursuer was the lowest and successful offerer in the contract above referred to, and the said statements by the defender are of and concerning the pursuer, and are false, malicious, and slanderous. The statements referred to have been read by a large number of people in and around the district where the pursuer carries on his profession, and among others by his constituents and friends, with the result that he has been injured in his feelings and reputation as well as in his trade and business as a printer and publisher”

The defender pleaded—“(1) No relevant case.”

The pursuer proposed the following alternative issues for trial of the cause—“(1) Whether the said statement was of and concerning the pursuer, and falsely and calumniously represented that the pursuer had obtained the said contract by dishonest and improper means, to the loss, injury, and damage of the pursuer. (2) Whether the said statement was of and concerning the pursuer, and whether the said statement was false, and was made and published by the defender with the design of injuring the pursuer, to his loss, injury, and damage?”

On 13th March 1894 the Lord Ordinary ( Kincairney) disallowed the issues and assoilzied the defender.

“ Opinion.—This is an action of damages for defamation by the printer and publisher of an Alloa newspaper against the printer, publisher, and editor of another newspaper, also published in Alloa. The words complained of published in the defender's news-paper are these—‘This contract was secured by the lowest offerer in a mean and contemptible manner. We attach no blame to any of the burgh officials, but to the unfair advantage taken by the successful offerer to secure the contract.’ The contract referred to was a contract for printing the register of voters for Tillicoultry, and the paragraph is said to refer to the pursuer. Two alternative issues have been tabled by the pursuer, the one appropriate to an action for slander, the other to an action for verbal injury.

The first issue is, whether the paragraph referred to represented that the pursuer had obtained the contract by dishonest and improper means. The question debated was, whether the paragraph complained of could reasonably be innuendoed as involving a charge of dishonesty. I have answered that question in the negative, although not

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without hesitation. The case is presented as a mere question of construction of the paragraph, and no circumstances are averred as colouring the paragraph, or as suggesting that the words meant more than their ordinary construction conveys. The idea of dishonesty involves some kind of fraud or falsehood perpetrated by misrepresentation, or concealment, or some sort of circumvention; but it is not suggested that the paragraph pointed at anything of that kind, and therefore it does not appear to me that according to its reasonable construction it can be held to involve a charge of dishonesty. The words ‘unfair advantage,’ read in connection with what precedes, seem to suggest some undue advantage taken by the pursuer which might be characterised as mean and contemptible, but not as fraudulent or dishonest.

It was not maintained that the words, although objectionable and insulting, were defamatory without the innuendo.

The alternative issue was proposed to meet the event of the paragraph being held not to be defamatory, and was said to be warranted by the recent case of Paterson v. Welch, May 31, 1893, 20 R. 744. The model of the issue in that case has not been followed exactly in the present case, but there would have been no difficulty in altering this issue so as to bring it into conformity with the issue in Paterson v. Welch. But I have disallowed the issue on other grounds, because I do not think that this is a case to which the judgment in the case of Paterson v. Welch applies, unless it applies to every false statement of which it is averred that it was made with a design to injure. I think that it cannot be reasonably suggested that the words complained of were used with any design to injure the pursuer or to expose him to public hatred and contempt.”

The pursuer reclaimed, and argued—The statement complained of had been made, according to the pursuer's allegation, out of ill-will, with design to injure, and with the result of inflicting injury. The pursuer was in these circumstances entitled to an issue of verbal injury on the authority of Paterson v. Welch, May 31, 1893, 20 R. 744. It was proposed to alter the second issue to bring it into conformity with the issue allowed in that case. If not entitled to the second issue, the pursuer was entitled to the first, for the defender's words could reasonably be innuendoed as imputing dishonesty to the pursuer.

Argued for the defender—No dishonesty was imputed, but at the most dishonourable conduct. The innuendo was therefore unfair, and the statement was not slanderous— Archer v. Ritchie, March 19, 1891, 18 R 719; Turnbull v. Oliver, November 21, 1891, 19 R. 154.

The defender was not called upon to answer the pursuer's argument that an issue of verbal injury should be allowed.

At advising—