Scottish Court of Session Decisions

Lord President—I am of opinion that in this case the defender should get his expenses from the date of the tender of £51, and I arrive at this conclusion both on the reason of the thing and on the practice in analogous cases. It is true that if a person is charged with having made a calumnious statement, and by way of tender or retractation only says, “I withdraw it,” or “I regret that I made it,” that will not suffice. because such an expression of regret or retractation is quite consistent with his continuing to believe in what he had said, and the person against whom the calumny was uttered is not placed in the same position as if it never had been uttered. But when a man not only unreservedly withdraws what he has said, but expresses his regret for having said it, and admits that there was no ground for it, the position is wholly different, because when it is admitted that there is no ground for the statement, or in other words that it is untrue, the person injured is put, in so far as the person who made the statement can do it, in the same position as if the statement had never been made.

It is true that over and above this there is the question of damages, which may be very material. If only a nominal amount is tendered, there may be no sufficient vindication of character. The offer of only a nominal sum and its acceptance might convey the impression that the matter was one of small importance. But if the sum tendered is considerable the position is different. Now, in this case not only was there an unreserved retractation and an admission that the charge was groundless, but there was ultimately also a tender of £51. No one could say that this was merely a nominal sum. The tender of it implied an admission that substantial damage had been suffered. The tender, indeed, very accurately guaged the situation, for the verdict of the jury was for £50—£1 less than the tender. In these circumstances I think that the pursuer is entitled to expenses down to the date of the tender of £51, and that the defender is entitled to expenses after that date.

Lord Adam—In cases of this kind there are two matters in issue between the parties—the sufficiency of the apology and the sufficiency of the damages. Was the apology in this case sufficient and ample enough to vindicate the character of the pursuer? It does not appear to me that there is much, if any, difference between a hypothetical apology and any other. Now, the defender here simply says that he does not remember saying what he is charged with having said, and I see no reason why a man should be bound to admit saying what in his belief he did not say. Why should he admit as a fact that he made a statement which he believes he never made. Further, can the pursuer be said to be in a worse position if the defender says, “Assuming that I made the statement complained of then I admit that it was entirely false and that there were no grounds for it,” than he would be if the defender was able to admit, and did admit, making the statement. Accordingly, the question in this case just comes to be, Was the apology made a real and true retractation of the calumnious statement which the defender is assumed to have made. I think it is, and that it is difficult in the circumstances to conceive a more ample apology or more complete vindication of the pursuer's character. The apology, however, does not terminate the case. According to some of the cases cited the tender was equivalent to the verdict of a jury in favour of the pursuer, and the case should have gone no further. But there is always in addition to the apology the question of damages to be considered, for the apology does not satisfy that claim, and the pursuer is entitled to go on with the case to have their amount determined, but he must do so on the ordinary conditions; he must make up his mind either to be satisfied with the sum tendered or take the risk of getting a larger or smaller sum from the jury. I see no reason why in a case like the present the ordinary result should not follow from the sum found by the jury's verdict being smaller than the amount tendered.

Lord M'Laren—I do not think that any general rule can be laid down as to the sufficiency or insufficiency of a qualified or hypothetical apology. There may be cases where such an apology would meet the justice of the case, and others where it ought to be rejected as being evasive or a repetition of the injury. The clearest case for a hypothetical apology is where words have been used which are innocent in themselves but are said to contain a covert meaning. In such a case it is surely enough for the person using the words to say “I admit that I used the words, but not that they bear the meaning attributed to them; if, however, they have conveyed that impression to others I regret and apologise for their use.” Or take this illustration of the other extreme, where a defender has in writing attacked the character or honour of another, I do not think he could get out of it by saying, “If my words convey that impression, I withdraw them.” There would be an obvious insincerity in that form of apology, and I need not say that every apology must be such as a person in good faith and desirous of making reparation would be likely to offer.

In the present case I think the apology is sufficient, first because the Judge who tried the case is of that opinion, and also because I understand that when the slander was uttered the defender was not quite sober, and may have used words which he did not afterwards recollect.

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