Scottish Court of Session Decisions

The facts of this case are narrated as follows by the Lord Ordinary:—“The Scottish Football Union is composed of all the football clubs in Scotland playing the game

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under the Rugby Football Rules which have been admitted into its membership, and it is alleged that the affairs of the Union are managed by a committee.

On 27th October 1894 a match was played at Mossilee, Galashiels, between the Gala Football Club, of which club the pursuer Murdison is a member and vicecaptain, and the Watsonian Club, both of which clubs are members of the Scottish Union. At this match the third defender, James Dick junior, acted as referee. At the match there seems to have been a good deal of rough and disorderly behaviour, into which I need not go, because the pursuer has not lodged any issue in reference to what took place on the field. He seeks damages on account of what came after.

On the day of the match, 27th October, the referee, James Dick junior, wrote to the secretary of the Football Union a letter in the following terms:—‘As referee in the match Watsonians v. Galashiels, at Galashiels to-day, I regret that I find it my duty to report the treatment I received there. During the match, which was a fast and exciting one throughout, my decisions were repeatedly questioned by members of the Galashiels team, and I was the object of several offensive remarks. The spectators hooted and hissed every decision of mine which was not in favour of the local team—this I may say the Galashiels team made no effort to prevent. Immediately on the call of time I was surrounded by the entire crowd of spectators, and but for the prompt action of Messrs Gordon Cochrane, W. S. Brown, and a few members of both teams, would have fared badly. We had to fight our way to the pavilion, and after leaving the field were pelted with mud, &c., and followed by hundreds of men and boys till safely within Mr Cochrane's house. Beyond a few kicks on the legs, and a blow from a stone on the back of the head, I sustained no injury. The Watsonians were similarly treated during their drive to the hotel. As to a reason for the demonstration, I am at a loss. If I was glaringly unfair, I presume the Galashiels team will appeal to the Union committee regarding my decisions; otherwise the matter is more inexplicable and unwarranted. I make no further comment, but simply leave this letter in your hands, to be dealt with as you see fit.’

On 29th October the secretary replied—‘I have your letter of the 27th inst., which will have the attention of the committee as soon as I am able to place all the necessary information before them. Meantime I will be obliged if you can inform me of the name of any one or more players who used offensive remarks to you during the game, or who questioned your decisions.’

On the same day the defender, Dick, replied—‘ Gala v. Watsonians. I am in receipt of your letter of to-day's date. I can give the name of one player who was probably the worst offender, both in questioning my decisions and in making offensive remarks; I refer to T. Murdison, one of the Gala forwards. He is perhaps unfortunate in being singled out, as I could have mentioned others had I known their names. I regret that I should have to mention names at all, but I believe in doing so I am furthering the best interests of football.’

In consequence of these letters a meeting of the committee of the Union was held, and it was resolved to investigate the disturbances complained of. This resolution was intimated to the Gala and Watsonian clubs, but in the intimations no express reference was made to any charge against the pursuer.

The inquiry was held on 9th November. The pursuer attended and gave evidence, and he denied the statements made about him in Mr Dick's letter of 29th October. Mr Dick also gave evidence, and the pursuer states that he not only reiterated the charges in his letters, but further accused the pursuer of having during the match called him, the referee, ‘a bloody little brute.’

The pursuer avers that the inquiry was conducted unfairly and irregularly in various particulars, which will be noticed afterwards.

The result was that on 9th November the committee adopted the following finding and resolution—‘That T. Murdison used offensive language to the referee.’ … ‘That T. Murdison be severely censured, and be ordered to apologise to the referee.’

It is averred that the committee specially instructed the secretary to ‘communicate their decision to the press.’

The pursuer did not apologise, and on 6th December 1894 a resolution was adopted ‘that T. Murdison be suspended from playing until the committee withdraw the suspension.’ The pursuer's averment on this point (Cond. 7) is that this resolution was adopted by ‘the members of the committee, who are the second defenders, or some of them.’

It is averred in Cond. 7 that the ‘findings and resolutions were published in newspapers containing football intelligence throughout Scotland with the first and second defenders' knowledge and sanction, and thus obtained wide publicity among football players and among the general public.’

The pursuer avers that this suspension was illegal and incompetent, and that its effect is ‘to prevent the pursuer from playing in any club or against any club which is a member of the Football Union. Such clubs refuse to play along with or against any person who has a professional stigma set against him, and, in consequence of the jurisdiction asserted by the first and second defenders, members of clubs composing the Union decline to play with or against the pursuer, for fear that the said defenders should treat their doing so as an offence.’ The defenders admit that, so long as the suspension stands, no club which is a member of the Scottish Football Union is entitled to play either with or against the pursuer.

The defenders called in this action are—(1) The Scottish Football Union and its

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president, vice—president, secretary, and treasurer, and also various individuals, as forming along with these officials the committee of the Football Union, ‘as such committee, and as representing the said Union,’ described as the first defenders; (2) the various individual members of the committee, called the second defenders; and (3) James Dick junior, called the third defender. The action concludes for £1000 from ‘the first defenders, as committee foresaid, and as representing the said Union, and the second defenders as individuals;’ and for £500 as against James Dick junior, the third defender.

Defences have been lodged for (1) the first and second defenders, and (2) for James Dick junior, the third defender.

As in both defences the first plea is that the action is incompetent, and second, that it is irrelevant, the case was debated in the procedure roll. In the course of the debate it appeared desirable that the pursuer's case should be expressed in issues, more especially as his counsel intimated that he did not intend to propose issues in regard to what took place on the field; and accordingly, by interlocutor of 26th June the pursuer was appointed to lodge the issues which he proposed. He now lodged thirteen issues, on which, as well as on the pleas against the competency of the action, parties were heard.”

The pursuer averred—“(Cond. 4) The said letter of 29th October 1894, written and dispatched by the third defender, was in part of and concerning the pursuer, and falsely, calumniously, and maliciously represented, and was intended to represent the pursuer as having used coarse and improper language unbecoming a gentleman and a member of a club in the Scottish Football Union, as being a person who did not play the game of football fairly in accordance with the laws of said game, and in particular, as being a person who, in defiance of said laws, openly challenged and repudiated the authority of the appointed referee, and as being a person unworthy to play football with the members of clubs composing the said Union, and with whom the members of said other clubs ought not to play football; and further represented the pursuer as being a person who had falsely and calumniously imputed gross partiality and unfairness, or at least gross incompetency, to the said third defender in his actings as referee at said match, and had falsely and calumniously represented that the said defender was unfit for the post of referee, and was a dishonest umpire. These imputations were wholly unfounded, and have led to the pursuer being wrongfully excluded, as after mentioned, from playing in clubs and with clubs belonging to the Union. The pursuer through this exclusion has been greatly injured, not only in his feelings but in his reputation. (Cond. 6) … At said inquiry, in the presence and hearing of the second defenders, or one or more of them, he falsely, calumniously, maliciously, and without probable cause, not only read and reiterated the charges against the pursuer contained in his said letters of 27th and 29th October, but further charged the pursuer with having, at said match on 27th October, called him (the third defender) ‘a bloody little brute.’ Said charges were absolutely unfounded, and the said defender thereby made and intended to make the same representations of and concerning the pursuer as are detailed in Cond. 4. (Cond. 7) … On or about 6th December 1894 the members of committee, who are the second defenders, or some of them [the words in italics were deleted by the amendment of record in the Inner House, afterwards referred to], falsely, calumniously, maliciously, and without probable cause, adopted and published a pretended resolution in the following or similar terms—‘That T. Murdison be suspended from playing until the committee withdraw the suspension.’ All the said pretended findings and resolutions were published in newspapers containing football intelligence throughout Scotland with the first and second defenders' knowledge and sanction, and thus obtained wide publicity among football players and among the general public. [The following additional statement was made by the amendment:—Upon the said committee's instructions the finding and resolution of 9th November 1894 were communicated to, inter alia, the following newspapers, viz., the Edinburgh Evening Dispatch and the Glasgow Herald, and on or about 7th December 1894 the resolution of 6th was also communicated to the said Edinburgh Evening Dispatch newspaper. These newspapers and others published the said finding and resolution of 9th November so communicated in their issues of the following dates, viz., the Edinburgh Evening Dispatch on the 12th November 1894, and the Glasgow Herald on the 12th November 1894. Subsequently the said resolution of 6th December was published in the issue of the Edinburgh Evening Dispatch on the 7th.] The pursuer's suspension and all the said pretended findings and resolutions were ultra vires of the said defenders, and incompetent and illegal.”

The defenders pleaded that the action was irrelevant and incompetent, and the first and second defenders further pleaded privilege.

Issues were lodged for the pursuer against the third defender embodying the different innuendoes set forth in his condescendence. Four issues were directed against the first and second defenders relating to the first deliverance of the committee, and containing the same innuendoes as those against the third defender.

The 13th issue lodged was in the following terms:—“Whether the Scottish Football Union, through its committee, and the said committee and the second defenders, or one or other and which of them, or one or more and which of the second defenders in name of the first defenders, on or about 6th December 1894, wrongfully, incompetently, and unwarrantably passed and thereafter caused to be published in the newspaper press a resolution ‘that T. Murdison be suspended from playing until the committee withdraw the suspension,’ to the

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loss, injury, and damage of the pursuer. Damages laid at £400.”

The Lord Ordinary on 26th July 1895 pronounced an interlocutor by which he dismissed the action against the defender Dick as irrelevant, refused the first twelve issues proposed, and approved of the thirteenth issue.

Note.—[ After narrating the facts as given above]—“lam not prepared to dismiss the action as incompetent. The charges against the Football Union and the committee and its individual members are, it is true, quite different from those made against the third defender Dick; but that defender is sued for a separate sum of damages. The charges, however, involve much the same inquiry, and it does not seem to be incompetent—although I doubt whether it is convenient—to combine with the action against him the separate and different claim against the Union and the committee and its members. But the defenders maintained that the incompetency of the action arose from this, that a slump sum of £1000 was claimed against two defenders, distinguished in the summons as being different parties, viz., the Union and the committee in the first place, and secondly, the individual members of the committee; and it was said that the action was therefore incompetent on the authority of the cases of Barr v. Neilson, 20th March 1868, 6 Macph. 651, and Taylor v. M'Dougal & Son, 15th July 1885, 12R. 1304. The objection is strict and technical, and I rather think that these cases do not apply, because all of these defenders, supposing them different, appear to have been participant in the acts of which the pursuer complains, and the question raised by the action is whether all or any of the defenders are chargeable with and liable in damages for acts in which they are all said to have been participant. There is no decision that such an action is incompetent.

The cases of Somerville v. Rowbothan, 27th June 1862, 24 D. 1187, and The Renton Football Club v. M'Douall, 30th March 1891, 18 R. 670, seem to meet any objection to the manner in which the Football Union has been called.

Holding, then, that it is not necessary to dismiss the action as incompetent, it is necessary to consider its relevancy, and the issues which have been lodged, on which indeed the argument mainly turned.

The first eight issues are directed against the defender Dick, and the other defenders have no concern with them. Dick, on the other hand, has nothing to do with the remaining five issues. The first four issues are laid on his two letters to the secretary of the Union above quoted, and the fifth, sixth, seventh, and eighth, on the evidence which he gave at the inquiry instituted by the committee of the Union.

Now, speaking generally, it appears to me that the letters are temperately and moderately expressed, and bring before the committee a legitimate complaint without the use of exaggerated or defamatory language. Further, I think that supposing Mr Dick had reason as referee to make a complaint at all, his complaint was addressed to the proper quarter, and that altogether independent of any special rules on the subject.

It was argued that according to the rules of the Union, complaints when competent fell to be made to the Union, not to the committee. But the Union is a body of such a nature that it must of necessity act through a committee; and I think that a complaint to the Union could only be made to it through the committee, and that every complaint to the committee was also a complaint to the Union. Further, I consider that the power to take cognisance of the conduct of the clubs which were members of the Union during their matches, and to entertain complaints about such conduct, was necessarily inherent in such a body as the Union, and in the committee by which its affairs were carried on.

Such letters as those under consideration, being letters bringing definite charges before the appropriate body or tribunal, are not readily to be extended beyond their natural meaning by innuendo, so as to make them embody charges which their words do not fairly express. The two letters read together import no more than that the pursuer used language which was offensive to the referee, and that he questioned his decisions.

[ His Lordship here dealt with the issues in detail.]

I am further of opinion that Mr Dick, in writing these letters to the committee of the Union, was unquestionably in a strong position of privilege; and further, that this is a case in which a general averment of malice is insufficient, and that the record contains no sufficient averment of particulars from which malice can be inferred. I think that there is really no such statement. The cases on this point were quoted and commented on at the argument. I have carefully considered them, and find it difficult to extract from them any very clear principle and distinction. I think they are consistent with the conclusion I have expressed.

The next four issues are directed against the Union, the committee, and the members of the committee. They relate to the first deliverance of the committee, by which it was found ‘that T. Murdison used offensive language to the referee.’ … ‘That T. Murdison be severely censured and be ordered to apologise to the referee’…. On the whole, I am of opinion that these issues should be disallowed, on the ground that it is not actionable to say of a man that he used offensive language and is severely censurable, and also on the ground that the committee and the members of it were in a position of privilege, and that no particulars inferring malice are averred.

There are, it is true, a number of statements with reference to the manner in which the inquiry was conducted which are founded on as evincing malice, or at least such disregard of the pursuer's rights as might be held equivalent to malice. I do not think it necessary to advert to these in detail.

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I think the complaint as to the exclusion of a newspaper correspondent is absurd; the reason for such exclusion, whether a good or a bad one, being plainly in no way indicative of animus against the pursuer. Assuming the truth of the pursuer's averments as to the procedure of the committee, I cannot say that I think they indicate recklessness or carelessness, but rather deliberation. I do not mean to say that they were in all points to be commended, or that the pursuer's interests, assuming his averments, were safeguarded as they would have been in a court of justice. But that was hardly to be expected, and I am not prepared to regard the defects in procedure averred as indicative of malice or of carelessness equivalent to malice.

The statement that the committee published their resolution in the newspapers caused me at first some difficulty. It is denied, but (although very unlikely to be true) must be accepted in a judgment on relevancy. If the committee did publish their resolution, that would certainly be, to my mind, a highly reprehensible act. But if the resolution itself be not defamatory, I do not see that the publication of it can be actionable.

There remains the thirteenth issue, which is different from all the rest. It refers to the second deliverance which purported to suspend the pursuer from playing until the committee withdrew the suspension. Under this issue damages are claimed as for a legal wrong, and the case of Blasquez v. Lothians Racing Club and Reid, 29th June 1880, 16 R. 893, was referred to as a precedent. In that case the third issue adjusted was whether ‘the defenders, the Lothians Racing Club, wrongfully expelled the pursuer, or caused him to be expelled, from the ring or paddock of the Lothian Racing Club and Edinburgh meeting at Musselburgh, to the loss, injury, and damage of the pursuer,’ which appears to warrant an issue for a wrong of a kind not very dissimilar to that complained of here.

The pursuer maintains that the sentence was wholly ultra vires. The defenders maintain that power of suspension is expressly conferred by the rules of the Union. They refer to a rule at page 31 of a book of bye-laws and laws of the game, bearing date 1890–91. But the pursuer does not admit that these rules were in force at the date in question, and he points to a book of bye-laws and rules bearing date 1894–95, which does not contain the rule in question. If the defenders shall prove that the rule on which they found was in force, they may thereby completely meet the pursuer's case. But I do not see how the pursuer's averments that the rules in force are all contained in the later handbook can be disregarded. It seems a point which cannot be cleared without inquiry.

Now, if a wrong has been done to the pursuer in this matter, I am not disposed to regard it as other than a serious wrong. It does not affect his patrimonial interests, nor necessarily or directly his character; but it puts him in a position of great disadvantage, obloquy, and discomfort. It was, if it have the effect which both parties attribute to it, a sentence of extreme severity, not (whether the committee have power or no) to be lightly pronounced; and cannot help thinking that it is a wrong—if a wrong at all—for which redress against those who did the wrong cannot be refused without denial of justice. I think it much the most serious wrong averred.

But the pursuer has stated this part of his case in such a manner as to make it very difficult to allow the issue he proposes. For he avers in Condescendence 7 that this wrong was done, not by the first defenders—that is, the Union and committee as such—but by the second defenders, i.e., the individual members of the committee, or some of them; while the issue proposed is whether the wrong was done by the Union through its committee, and the said committee ( i.e., the first defenders) and the second defenders, or one or other and which of them, or one or more and which of the second defenders, in name of the first defenders.

It is right to say here that the pursuer craved leave to amend the record, and that one of the amendments which he desired to make was to delete from this part of his record the words ‘or some of them.’ He was not, however, prepared to pay the expenses which I was prepared to award as a condition of allowing the amendment. Besides, the amendment did not fully meet the difficulty.

Having regard, however, to the averment that the findings and resolutions were published with the knowledge and sanction of the first defenders, as well as of the second, and also the express adoption of the sentence by the Union, I am inclined to think that the difficulty raised by the pursuer's record, though troublesome, may be got over, and that the last issue may be approved of.”

The pursuer reclaimed.

In the course of the debate in the Inner House the pursuer craved leave to amend his record by deleting the words “or any of them” in Cond. 7 quoted above, and by making the addition, above referred to, in that condescendence, specifying the papers containing and the dates of the appearance of the resolutions published.

The respondents objected to the proposed amendments being allowed except on payment by the pursuer of all expenses since the closing of the record, as without these amendments the record would not have been relevant— Morgan, Gellibrand & Company v. Dundee Steamship Company, December 9, 1890, 18 R. 205; Gallacher v. Pattison, November 10, 1891, 19 R. 79; Haughton v. North British Railway Company, November 29, 1892, 20 R. 113.