Scottish Court of Session Decisions

This was an action at the instance of John Paterson, Provost of St Andrews, against James Ritchie Welch, writer, St Andrews, for payment of £500 in name of damages.

The pursuer averred—“(Cond. 3) At the annual meeting of the School Board, held in St Andrews on 11th June 1892, the defender presiding, he, in the course of submitting the annual financial statement to the Board, said in the presence and hearing of … or one or more of them—‘That the School Board had lost during the past year the grant under the 39th section of the Madras College Scheme for the education of the pupils in the sixth and ex-sixth standards, and that the members of the Board who were governors of the Madras College were endeavouring to secure the £90 to which they were formerly entitled, under the Madras College Scheme, for pupils attending the Burgh School, to enable them to complete their education in the Madras College, but that this had met with an unqualified opposition from one of the governors of the College, who stated at a recent meeting of governors that the pupils from the board schools would contaminate the genteel children attending the Madras College.’ … The governor of Madras College, who was in the foregoing remarks referred to by the defender, and alleged to have made the said statement, was the pursuer. (Cond. 4) On 26th October 1892 a public meeting was held in St Andrews for the purpose of nominating candidates to fill the ten vacancies caused by the retirement of the senior members of council… . The defender at this meeting, in the presence and hearing of … reiterated and confirmed the statement complained of in the preceding article … (Cond. 5) The statement made and repeated by the defender as aforesaid, that the pursuer had used the words attributed to him by the defender, is absolutely false. The pursuer did not use the said words, and did not use any words of like meaning or effect. The defender, when he made and repeated

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the said allegation regarding the pursuer, knew that it was false. He meant by the said statement to represent, and he did thereby represent, that the pursuer was a man who held in contempt the poorer classes of the community, and others whose children attend the board schools in St Andrews, and the said children; and who was capable of reviling them, and had in fact reviled them, by representing the presence of the said children at the Madras College as a source of contamination to the children of the richer members of the community, and by representing that the said children who attend the board schools were morally unfit to associate with the other pupils who attend the Madras College. The said statement and representation were made by the defender falsely, calumniously, maliciously, and of set purpose, with the view of inducing an ill opinion to be had of the pursuer by the inhabitants of St Andrews, of injuring him in his position of Chief Magistrate, in the opinion of the citizens generally, and of holding him up to contempt and odium. Further, the said statement and representation were maliciously and recklessly made in the knowledge that they were false, with the special view of injuring the pursuer by influencing the ensuing municipal election, and of damaging the prospects of the candidates who supported the line of policy advocated for several years past by the pursuer. Accordingly the greatest publicity was given to the defender's charge against the pursuer. Not content with the attention which was called to the matter by the reports in various newspapers, the defender, by means of placards and circulars published and issued by him, either alone or acting in concert with others, and also by word of mouth, did everything in his power to circulate the falsehood which the defender had originated and reiterated as before mentioned. As matter of fact, the injury caused to the pursuer by the defender has been very serious. The defender, by his unfounded accusations, and by putting words into the mouth of the pursuer which he never used, succeeded in poisoning the minds of great numbers of the citizens, so that they came to regard the pursuer as the enemy of the poor. At the municipal election which took place the evil consequences were most apparent, and as to the result of the prejudice which had been created against the pursuer very many persons were induced to record their votes against the candidates who were supporters of the pursuer, or professed themselves as in favour of the line of policy which he advocated. The pursuer's supporters in the council had at previous elections been returned at the top of the poll; but at this last election, in consequence of the prejudice which had been created against the pursuer, out of the ten candidates who were known as belonging to the pursuer's party only three were elected. Indeed, the feeling against the pursuer was excited to such an extent that on the night of the election a crowd attempted to enter the pursuer's grounds in front of his house for the purpose of burning his effigy… . The said statement and representation of the defender have thus not only been hurtful to the pursuer's feelings, but they are calculated to impair, and have materially impaired, his influence and usefulness as a public man and a citizen, and seriously prejudiced his personal comfort and social position in St Andrews, where he lives.” …

The defender pleaded, inter alia (1) that the pursuer's averments were irrelevant.

On 8th March the Lord Ordinary ( Stormonth Darling) approved of the following issue—“1. Whether, on or about the 11th day of June 1892, at a meeting of the School Board of St Andrews, held in the Town Hall of St Andrews, the defender, in the presence and hearing of … all members of the School Board of St Andrews, and others, falsely and calumniously used the words set forth in the appendix hereto, or words of similar import and effect; and whether the statement was of and concerning the pursuer, and falsely and calumniously represented that the pursuer was a man who held the poorer classes of the community in contempt, and had reviled them by representing that their children were morally unfit to associate with, and therefore likely to contaminate, the children of the richer members of the community, to the loss, injury, and damage of the pursuer.” The appendix contained the statement quoted in condescendence 3. A second issue was approved of relative to the repetition of the statement complained of alleged in condescendence 4.

“ Opinion.—This is a very peculiar action of damages for slander, and I have had some hesitation in holding that there is issuable matter. But I have come to the conclusion that the pursuer is entitled to an issue if he chooses to insert in it the full innuendo which he avers on record.

The alleged slander consists, not in any opprobrious language directly applied by the defender to the pursuer, but in what is said to be a false report of some observations made by the pursuer at a meeting of Governors of the Madras College. Misreporting a public speaker is of course not actionable unless the words put into his mouth are of a slanderous or scandalous description. But if A falsely says of B that he used slanderous words of C, that is the same thing as calling B a slanderer, and is, I take it, actionable.

The question therefore is, whether the words (falsely, as I must assume) attributed to the pursuer can be said to convey a slander against anybody. They are that ‘the pupils from the Board Schools would contaminate the genteel children attending the Madras College.’ It is obvious that these words might mean nothing more injurious than this, that the one set of children were rougher in their manners and coarser in their language than the other set. If that was all, there was nothing like slander imputed to the pursuer. But ‘contaminate’ is an awkward word, and it may have been understood by those who heard it attributed by the defender to the pursuer, as meaning that the

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one set would corrupt the morals of the other. If so, I think it would be a slanderous imputation, directed no doubt against a large class of persons, but none the less a slander.

The pursuer undertakes to prove that the words were used by the defender, and understood by those who heard him, in that more serious sense, and it is hardly in the defender's mouth to deny that the words were capable of conveying it, for in a newspaper report, which he admits on record to be ‘substantially accurate,’ he is represented as having said at a public meeting that he considered the statement ‘an insult to the working men's children.’ The pursuer admits that there must be an innuendo, but in his issues as lodged he proposes one which does not seem to me to advance matters in the least, for it repeats the critical word ‘contaminate’ (in the form of ‘contamination’) without putting any gloss upon it. He maintains that even if the words were understood in a less injurious sense, still they imported a reflection on the children attending the Board Schools, and were calculated to make him unpopular. But I do not know where actions for slander would end if it were held actionable to impute, however falsely, unpopular sentiments to public men. I think therefore the pursuer must undertake the burden of proving that the words were understood to mean moral contamination.

The defender raised the question of privilege. It is one of very little practical moment, because privilege could not possibly cover the second issue, relating to a public meeting which had nothing to do with the pursuer's conduct as a Madras College Governor. Even as regards the first issue, I am by no means satisfied that privilege arises so clearly on the pursuer's own statement as to require that malice should enter the issue. I shall therefore leave the question to arise at the trial.”

The defender reclaimed, and argued—1. The statement complained of was only slanderous if it represented the pursuer as a slanderer. This it did not do. In the first place, it could not reasonably be held that a public man using such words in contrasting one class of the population with another was guilty of slander. Secondly, it was impossible to slander a class, for assuming that defamatory words were used of a class, no member of such class could sue an action of damages for defamation. In the third place, to impute a single slanderous statement to a person was not the same as calling him a slanderer. The issues granted by the Lord Ordinary should therefore be disallowed. 2. The alternative issue of verbal injury which the pursuer now sought should not be granted. It was essential to such an issue that the attacks should be repeated. There must also be patrimonial or other tangible loss alleged, and such an issue had never yet been granted for a verbal attack. If such an issue were granted, it should bear that the defender had made the statement with the intention of holding the pursuer up to hatred and contempt.

Argued for the pursuer—1. The pursuer was entitled to the issues allowed by the Lord Ordinary. The statement made by the defender attributed the utterance of a slander to the pursuer— Christie v. Hony, May 14, 1824, 3 S. 11; Home v. Lundie, March 19, 1832, 10 S. 508. Anything said of a man which tended to vilify him in the minds of his neighbours was actionable— Mackay v. Campbell, July 25, 1833, 11 S. 1031; Russel v. Shirrefs, March 16, 1837, 15 S. 881; Graham v. Roy, February 11, 1851, 13 D. 634. The defender's statement was not the less defamatory because the slanderous words which it imputed to the pursuer referred to a class and not an individual— Society of Solicitors v. Robertson, November 16, 1781, M. 13,935. The fact that the words imputed to the pursuer referred to a numerous class of people increased the injury done to the pursuer, and was an odd ground for saying that he had no remedy. 2. Assuming that the defender's statement was not actually defamatory, still if it were falsely made with the design to injure the pursuer, and had done him injury, it was actionable—Ersk. iv. 4, 80; Sheriff v. Wilson, March 1, 1855, 17 D. 528; Cunningham v. Phillips, June 16, 1868, 6 Macph. 926; M'Laren v. Ritchie, referred to in Coghill v. Docherty, 19 S.L.R. 96; Macfarlane v. Black & Company, July 6, 1887, 14 R. 870, per Lord Young, 874. The same rule had been recognised in England— Riding v. Smith, 1876, L.R., 1 Exch. Div. 91. To entitle the pursuer to an issue on this ground, it was not necessary that the attacks should be repeated. Persistency in such attacks only went to prove intent to injure.

Thereafter on May 19th 1893 the pursuer lodged the following issue for trial of the cause (as alternative to the issues granted by the Lord Ordinary)—“Whether on the occasions after mentioned, or on one or other of them, viz.—(1) On or about the 11th day of June 1892, at a meeting of the School Board of St Andrews, held in the Town Hall of St Andrews, in the presence and hearing of Mrs Purdie, Mr Gerald Blunt, Mr John Laverock, and Mr Jesse Hall, all members of the School Board of St Andrews, and others; and (2) on or about the 26th day of October 1892, in the Town Hall of St Andrews, and in the presence of William Cruden, Bailie Macgregor, Ex-Bailie Aikman, and Bailie Ritchie, all of St Andrews, and others, the defender stated that the pursuer at a recent meeting of the Governors of Madras College, St Andrews, had said that the pupils from the Board School or the working men's children from the Burgh School of St Andrews, if admitted to Madras College, would contaminate the genteel children who were there, or made statements of similar import and effect; whether the said statements were made in pursuance of an intention to expose, and whether the pursuer is thereby calumniously and injuriously exposed to public hatred and contempt, to his loss injury, and damage?

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At advising—