Scottish Court of Session Decisions

Lord President—It appears to me that the general rule to be derived from the decisions as to the circumstances under which the pursuer of an action of damages for defamation is bound to allege facts inferring malice, in addition to alleging that the statement complained of was made maliciously, is very well stated by Lord Kyllachy in the case of Sheriff v. Denholm, in which his Lordship said that the rule which requires a statement of such facts and circumstances must now be taken to apply generally “to all cases where a defamatory statement is made in pursuance of any definite and special duty, whether to the public or to an individual, including any duty owed to the aggrieved person himself.” It might be proper to add to this statement of the rule the words “or in the exercise of any right.”

The question therefore comes to be, whether there is anything in the circumstances of this case to displace the general rule that it is not enough merely to allege that the words complained of were written maliciously, in respect that the circumstances appearing on the record call for explanation on the part of the defender.

It is a very special circumstance in this case that on the pursuer leaving the employment of the defender the defender gave him a certificate in which he stated that the pursuer had been four years in his employment and had left of his own accord, as also that he had always found him sober, honest, and trustworthy. That is certainly a very absolute recommendation, and it has to be compared with what the defender wrote on 17th February 1900—a little more than a year later. His letter of that date was written in reply to a letter from Mr Black, and a copy of Mr Black's letter is produced and referred to. It is in these terms—“Mr Joseph Macdonald has applied to me for a situation, and has given me your name as reference. You might please let me know as to his honesty, sobriety, and his ability as bar-tender. Any information you may give me will be treated as strictly confidential.” Anything said in reply to such an inquiry as that would, under ordinary circumstances, have a large measure of privilege. The defender's answer is—“ Re yours of yesterday—no good,” which plainly means that the pursuer is no good as a bar tender. The important question seems to me to be, whether the apparent discrepancy between that reply and the certificate given a year before is not such as to call for some explanation from the defender, and I am of opinion that it is.

The apparent discrepancy seems to me to be such a special circumstance as the defender may reasonably be called upon to explain. I therefore think that the requisite exception is here made out upon averment, and that we should allow the case to go to a jury.

Lord Adam—The question being whether or not there is a relevant case to go to a jury we must have regard to the averments of the pursuer—[ His Lordship here narrated the material averments]. The first thing to consider is, whether Mr Black's letter and the defender's reply will bear that innuendo. If not—if they are not capable of bearing that innuendo—then there is an end of the case. In my opinion, however, they are capable of bearing that innuendo. If so, then it is for the jury and not for us to say whether it is proved that that is their true meaning. Meanwhile we must take the case on the assumption that that is the true meaning to be drawn from the expression used. If that is so, then we have under the hand of the defender on the 6th February 1899 a statement that the pursuer had been for four years in his employment, that he had left of his own accord, and that he (the defender) had always found him sober, honest, and trustworthy; and then we also have, after an interval of little more than a year, a statement that the pursuer is not honest and sober, that he is a worthless character, and not a fit and proper person to fill the post for which he had applied. Accordingly we have here two statements by the defender within a comparatively short time of each other entirely contradictory. That seems to me to require some explanation. The defender may no doubt have a very satisfactory explanation, but that is for the jury to say—not for us. So far as pleading goes, the defender, in considering the present question, cannot be heard to say, “The first certificate which I granted was false, and I knew it to be false, and that is why I wrote the postcard.” Some explanation is required. On the face of it, if no explanation were offered, then one of the inferences which a jury might be entitled to draw would be, that in writing the postcard the defender was acting maliciously. If Mr Black had simply written asking what is the pursuer's character, and had got the answer which he did, “that he was no good,” that would have been just an ordinary privileged case, and unless there was something stated on record to displace that and to show that he was not simply acting in the discharge of a duty, it might have been necessary to have alleged special facts and circumstances inferring malice. But that is not the present case, for here we have on the face of the proceedings an entirely unexplained contradiction, which differentiates this case from those in which particular averments instructing malice were desiderated.

Lord Kinnear—I am of the same opinion.

I agree with Lord Adam that the first question to consider is, whether the letter will bear the innuendo which the pursuer puts upon it, and I agree with him also, but without expressing any opinion at present as to the precise words which should enter the issue, that it is sufficient that the letter is clearly capable of bearing that innuendo. The letter therefore for the purposes of this discussion must be taken to mean that the defender has alleged

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