Scottish Court of Session Decisions

On 4th March 1908 William C. M'Lean, apprentice baker, Bo'ness, brought an action against Patrick Campbell Hart, C.E., Glasgow, in which he claimed £500 as damages for judicial slander.

The pursuer averred—“(Cond. 3) On 21st January 1907 the defender raised an action in the Court of Session against his wife, concluding for divorce on the ground of the adultery of his wife with the pursuer or some other male person to the defender unknown. In said action the pursuer was called as co-defender, and the defender averred on record that ‘In consequence of the information elicited by the pursuer from the defender, the pursuer has made inquiries and has ascertained, and now avers, that upon Tuesday, 1st May 1906, and upon other dates during that month, and also in the month of April preceding, the defender (Mrs Hart) misconducted herself with the co-defender (pursuer), and that the co-defender is the father of the child which was born to the defender (Mrs Hart) on or about 11th January 1907.’ These statements are false and calumnious, and were made by the defender recklessly, maliciously, and without probable or any cause. No inquiries whatever were made by the present defender, or on his behalf, relative to the pursuer's connection with the case, and the only communication he caused to be made to the present pursuer was in December 1906, when he endeavoured, through a private detective, to induce the pursuer to sign a similar confession to corroborate the said alleged confession by Mrs Hart. This the present pursuer refused to do. Further, the present defender never had any information connecting the present pursuer with his wife's alleged adultery, except a statement in one of the two documents referred to below, which document the present defender knew, at the time he took the oath of calumny, his wife was repudiating as false. Further, no evidence was attempted to be led at the trial against the pursuer. (Cond. 4) In said action the defender produced and founded on written

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statements alleged to have been addressed to him by his wife on or about 23rd September 1906, and bearing to contain, inter alia, the following statement—‘I, Bella Hart, confess to having on May 1st fallen pregnant with William M'Lean.’ This was all that connected the present pursuer with the alleged adultery in this document. The other statement contained no mention of the present pursuer. With reference to defender's explanations in answer, it is averred that he knew perfectly well that his wife's condition might be due to himself. Denied also that the said documents were sent to the defender voluntarily by Mrs Hart, and explained that this was part of the arrangement between the spouses after mentioned. Explained that the defender took advantage of his wife's pregnancy, and the hysteria consequent thereon, and induced her to write the said alleged confession (Cond.5) The said Mrs Hart in her pleadings in said action denied that she had ever been guilty of adultery with the pursuer, and averred that the said letter or confession founded on by the defender was untrue, and written solely on the suggestion and at the instigation of the defender, and merely for the purpose of obtaining his consent to a separation. In point of fact the defender knew that there was no truth whatever in said alleged confession, and the same was suggested by him, and written at his instigation with a view to obtaining a separation, which at the time both spouses desired. Notwithstanding the defender's said knowledge, and the fact that his wife in said action denied adultery with the present pursuer, and explained the circumstances in which the said alleged confession was written, the defender persisted in his allegations against the present pursuer, and took upon himself the burden of proving the said statements made by him on record, and adopted same as his own. By the judgment of the Court the pursuer was assoilzied from the conclusions of said action in so far as same were directed against him, and was found entitled to expenses against the defender. (Cond. 6) The foresaid statements were made by the defender of and concerning the pursuer falsely, calumniously, and maliciously, and were made without probable or any cause, and were admitted by him to have been so made when examined as a witness in the said action. At 1st May 1906 the pursuer was a boy of seventeen years of age, and was employed in a menial capacity in defender's service, and the foresaid statements made by defender concerning him were known by defender to be untrue, and they were made by defender recklessly, and in the knowledge that the said confession had been repudiated by his wife. There had never been the slightest familiarity much less impropriety between the pursuer and the defender's wife. Moreover, the defender persisted in said statements after his wife had stated on record the circumstances in which the so-called confession had been granted as aforesaid. Further, the defender knew that the child with which he charged the pursuer of being the father had been born on 11th January 1907, and was a child which had the full period of gestation, and that his said wife had been absent in England from 5th to 25th April 1906, during which period intercourse between pursuer and her had been impossible.”

The defender, inter alia, pleaded—“(1) The pursuer's averments are irrelevant and insufficient to support the conclusions of the action, which should accordingly be dismissed. (2) The statements complained of being privileged, and the defender having acted without malice, is entitled to be assoilzied from the conclusions of the action.”

On 6th June 1908 the Lord Ordinary ( Johnston) repelled the defender's first plea-in-law and allowed an issue.

Opinion.—“In this action, although as originally stated I do not think there was a relevant case set forth for the pursuer, I think that his amendments render it such that I must send it to trial. The circumstances are that the defender raised an action against his wife some eighteen months ago for divorce, and called as codefender the pursuer in the present action, who was then in the position of his groom. He raised that action, as stated in the record in the present action as amended, basing it upon a written confession under the hand of his wife. It is now said that in the divorce action the present pursuer “was called as co-defender, and defender averred on record that—“In consequence of the information elicited by the pursuer from the defender” (the defender in the passage I am reading means the wife, and the pursuer means the husband) “the pursuer has made inquiries, and has ascertained, and now avers, that upon Tuesday, 1st May 1906, and upon other dates during that month, and also in the month of April preceding, the defender misconducted herself with the co-defender, and that the codefender is the father of the child which was born to the defender on or about 11th January 1907.”’ As originally stated, the first part of that passage was not quoted, and the first part of that passage is what, I think, makes the amended record relevant, because it says—‘In consequence of the information elicited by the’ present defender from his wife, he ‘has made inquiries and has ascertained, and now avers,’ definite facts.

It is alleged now that no such inquiries were in fact made, that the husband ascertained nothing, and founded this averment of a specific act of adultery, and of intercourse continuing over two months, upon absolutely nothing but his wife's letter. That is the averment. It may be true or it may not. The statement to which I refer is—‘This’ (referring to the letter of confession) ‘was all that connected the present pursuer with the alleged adultery in this document. The other statement contained no mention of the present pursuer. These statements are false and calumnious, and were made by the present defender recklessly, maliciously, and without probable or any cause. No inquiries whatever were

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made by the present defender or on his behalf relative to the pursuer's connection with the case, and the only communication he caused to be made to the present pursuer was in December 1906, when he endeavoured through a private detective to induce the pursuer to sign a similar confession to corroborate the said alleged confession by Mrs Hart. This the pursuer refused to do. Further, the present defender never had any information connecting the present pursuer with his wife's alleged adultery, except a statement in one of the two documents referred to below, which document the present defender knew at the time he took the oath of calumny his wife was repudiating as false. Further, no evidence was attempted to be led at the trial against the pursuer.’

The result of the trial was that the Lord Ordinary, while finding that there was enough in the conduct of the wife corroborative of her written confession to justify his granting decree of divorce, held that there was no evidence against the co-defender, and accordingly he was assoilzied. Now, the contention before me has been that there is no relevant averment of facts and circumstances from which malice can be inferred. It is quite true that in the case of Scott v. Turnbull, 11 R. 1131, the Court laid down what had been fully recognised before—but they laid it down authoritatively—that in a case of judicial slander where the statement is relevant to the action—and some judges think even where it is irrelevant, but at the same time pertinent—the pursuer must not merely aver malice, but he must aver a state of circumstances from which malice may be deduced; that it is not sufficient to use the adjectives ‘false,’ ‘malicious,’ and so on, but that there must be circumstances stated from which the malice may be deduced. The late Lord President Inglis puts it thus in the case referred to—‘In order to displace the honest and proper motive of the defender and to show that the statement was made from an improper motive, I think there must be a statement of facts and circumstances from which malice can be inferred.’ That is certainly the law, but it is stated, I think, very widely, and it is to be read in connection with the circumstances of each case. And a very few years afterwards, in the case of Gordon v. The British and Foreign Metaline Company, in 14 R. 75, there is a very important criticism and explanation by the Lord Justice-Clerk Moncreiff of the case of Scott v. Turnbull. He says—‘Now, at this point I should wish to say a few words on the case of Scott v. Turnbull, in 11 R. 1131, and the general principle which that case involved. The objection here is that the mere allegation of malice, without a specification of the facts which would imply malice and would lead the jury to come to the conclusion that it existed, is fatal to the action. Now, I entirely agree in the view that was taken in the case of Scott v. Turnbull. Malice is in the breast of the party accused, and it cannot be known to the outer world unless there has been some act that evinces malice, and from which the existence of malice is to be deduced. Consequently, when a man alleges malice against another in a privilege suit he must have some reason from which he has inferred its existence—some reason not in his own mind merely, but deduced from the outward acts or words of the person against whom the allegation is made. All that was laid down in Scott v. Turnbull—it has been frequently laid down before—was that the averment of malice should not be left on the bare allegation of its existence, that he should specify to some extent at least the outward acts, words, or circumstances which have led him to infer that the person acted maliciously. I think that is quite reasonable, because otherwise an allegation of malice may be a random suggestion for which the litigant alleging it has no grounds in fact. But I do not think that this case falls under that category. On the contrary, without saying in the least that the facts set out on the record necessarily lead to the conclusion that the proceedings in question were malicious, I think they are at all events facts which a jury are entitled to deliberate upon and decide whether they were in their view sufficient to infer malice.’

That last paragraph gives what I believe to be the true and full explanation of the law upon the point. I may also refer to the case of Beaton v. Ivory, in 14 R 1057, in which the late Lord President Inglis, referring to what he had already said in the case of Scott v. Turnbull, says that he did not intend to lay down a general rule in the terms broadly stated in Scott v. Turnbull as applicable to all cases. I think that this indicates that he concurred with the views expressed by Lord Justice-Clerk Moncreiff in the case I have last quoted. But there are two subsequent cases—the case of Campbell v. Cochrane, 8 F. 205, and the anonymous case A v. B, in Court of Session Cases, 1907, 1154, in which words are used by some of the Judges which I cannot help thinking, cannot be received as of general application. In Campbell v. Cochrane one or more of the Judges in support of an averment of malice desiderate a statement of tangible antecedent circumstances. In the case of A v. B the Lord President, I think, asks for either something extrinsic or something to be inferred from intrinsic exaggeration of statement. I think all cases of this class have to be referred to their own particular circumstances. And taking the circumstances alleged here, and taking the law as laid down by Lord Moncreiff—to which I entirely subscribe—it seems to me that we have here an allegation of circumstances from which either the Court or a jury may perfectly well and fairly infer malice. There is nothing extrinsic of the case, there are no tangible antecedent circumstances, but there is, on the allegation now made, a reckless use of the pursuer's name in relation to this action of divorce, under circumstances in which the pursuer of that action, finding it necessary to lay hold of some name in order to justify his action,

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pitches upon the present pursuer, and without inquiry, and without being able to justify himself in the result by leading any evidence whatever, asserts that he was engaged for weeks in an illicit intercourse with his wife. It seems to me that, looking to the class of case we are dealing with, if that allegation be true—I do not say that it is sufficient—but I say that at least it sets forth circumstances under which either the Court or a jury might perfectly fairly consider that the pursuer in the action of divorce had acted with such reckless disregard of the interest of a third party as to be equivalent to malice. I shall therefore repel the plea to the relevancy and send the case to a jury.”

The defender reclaimed, and argued—The pursuer's averments were irrelevant. This was an action of damages for judicial slander, and in such actions a pursuer was bound to aver facts and circumstances from which malice could be inferred— Scott v. Turnbull, July 18, 1884, 11 R. 1131, 21 S.L.R. 749; Gordon v. British and Foreign Metaline Co., November 16, 1886, 14 R. 75, 24 S.L.R. 60; Beaton v. Ivory, July 19, 1887, 14 R 1057, 24 S.L.R. 744; Campbell v. Cochrane, December 7, 1905, 8 F. 205, 43 S.L.R. 221; A v. B, 1907 S.C. 1154, 44 S.L.R. 870. No such facts and circumstances were averred here. It was not malice to aver on record the contents of a confession, provided that was not done with the view of injuring a third party. Statements which were relevant to an issue were clearly privileged, and if made in bona fide and in support of a pursuer's case, no action lay in respect of them. The statements complained of were so made, and the pursuer therefore had no relevant case.

Argued for respondent— Esto that in actions of damages for judicial slander facts and circumstances sufficient to infer malice must be averred, such facts and circumstances had been averred here. The pursuer's averments were sufficient to infer “legal” malice, for he averred that the statements complained of were made recklessly and without inquiry, and that the so-called confession was a trumped-up story instigated by the defender for his own purposes. The defender had recklessly and without any probable cause charged the pursuer with specific acts of adultery, and had persisted in these charges after their repudiation by his wife. These charges had not been established, for the Judge who tried the case had assoilzied him with expenses. The pursuer therefore was clearly entitled to an issue.