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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macdonald v. Hedderwick & Sons [1901] ScotLR 38_456 (16 March 1901)
URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0456.html
Cite as: [1901] ScotLR 38_456, [1901] SLR 38_456

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SCOTTISH_SLR_Court_of_Session

Page: 456↓

Court of Session Inner House First Division.

Saturday, March 16. 1901.

(Without the Lord President.)

38 SLR 456

Macdonald

v.

Hedderwick & Sons.

Subject_1Proof
Subject_2Diligence
Subject_3Slander in Newspaper
Subject_4Recovery of Defender's Business Books to show Circulation of Newspaper and Localities in which Sold.
Facts:

In an action of damages against the proprietors of a newspaper for slander alleged to be contained in an article which had appeared in the paper, held that the pursuer was entitled to a diligence to recover the defenders' business-books in order to show the circulation of the newspaper at the date on which the alleged slander was published, but was not entitled to have excerpts from the books in order to show the localities in which the newspaper was sold.

Headnote:

The circumstances of this case are reported in the preceding report, p. 455.

The pursuer asked for a diligence for the recovery of, inter alia, “the business-books of the defenders relating to the business carried on by them as proprietors and publishers of the Glasgow Evening Citizen newspaper, including their cash-books, ledgers, day-books, sales-books, balance-sheets, and generally all books and memoranda showing or tending to show the number of copies of the Glasgow Evening Citizen sold or circulated, and the places in which such copies were sold or circulated in the years 1899 and 1900.”

The defenders opposed the granting of the diligence on the ground that the circulation of the Evening Citizen, and the localities in which it was sold, were matters which ought to be proved at the trial by the evidence of their manager and agents.

 Judgment:

Lord Adam—My view of this case is that the pursuer is entitled to know the average circulation of the newspaper at the time of the alleged slander. He is not bound to take as sufficient the statement of the officials of the defenders by putting them into the witness-box. To restrict him to that would be against all principle—I mean that it would not do to refuse the diligence merely on the ground that the pursuer is able to get the evidence he requires by putting the defender into the witness-box. Accordingly, I think that the pursuer is entitled to some information from the books, but I dissent to granting an order in

Page: 457↓

the terms of the specification, viz.—[ His Lordship read the part of the specification which is quoted supra]. That call is a great deal too wide, and would open up an inquiry into the whole business of the company. If, however, there is a book, or if there are books, in the business which would show the number of copies printed and issued, then I think the pursuer is entitled to the information that he can get from them. That is a matter probably that can easily be adjusted by the parties.

As to the call for excerpts of entries showing the particular places where the newspaper was disposed of, I do not think that that is a matter to be granted. That is a question of fact which ought to be ascertained and proved in the usual way, and not by means of entries from the defenders' books. I am for refusing that part of the specification.

Lord M'Laren—I think that it is the right of the pursuer to obtain a return of the approximate circulation of the newspaper in question at the time of the alleged libel. The expense of a diligence in a case like the present is often obviated by the defender voluntarily giving the information which is sought. As that has not been done here I think the pursuer is entitled to a diligence. As regards the distribution of the circulation throughout the West of Scotland, I think that that is a fact which is capable of being proved by oral evidence within such limits of accuracy as are required for the purposes of the case, and I agree that this part of the specification ought not to be granted.

Lord Kinnear concurred.

The specification was accordingly amended at the bar so as to read as follows:—“The books … containing records of the number of copies printed, issued, sold, or returned, that excerpts may be taken therefrom by the commissioner showing the average circulation of the paper for the month of September 1900.”

The Court granted the diligence on the specification as amended at the bar.

 Counsel:

Counsel for the Pursuer— Clyde. Agent— W. C. B. Christie, W.S.

Counsel for the Defender— Cooper. Agents— Millar, Robson, & M'Lean, W.S.

 1901

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URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0456.html