Scottish Court of Session Decisions

This was an action brought in the Sheriff Court at Portree by Donald M'Neill, retired catechist, Portree, against Neill MacKinnon, merchant there, in which the pursuer craved decree for £250 as damages for slander

The pursuer alleged that on 13th August 1894, at a meeting of the Presbytery of a religious body, styling themselves the Free Presbyterian Church of Scotland, held at Portree, the defender stated maliciously and without probable cause that the pursuer, while acting as catechist of the Free Church at Braes in Skye, “had kept the money of the Church in his own pocket, and the money which should have gone to Edinburgh he had used for his own purposes,” or used words to the like effect, meaning thereby that the pursuer while acting as catechist at Braes received certain moneys belonging to the Free Church of Scotland which he should have remitted to the treasurer of said Church at Edinburgh, and retained them in his own pocket and used them for his own purposes.

The defender averred that on a certain Sunday in 1890 he conducted a service for the pursuer at Braes, and at the end of the service intimated that during that week the collectors would go round and collect the contributions to the funds of the Church, and that the collectors went round accordingly and received the people's contributions. He also averred as follows:—“The majority of the said collectors sent the contributions collected by them to the Church's treasurer at Portree, but one or more of said collectors handed the money so collected by them to the pursuer that he might transmit the same to the treasurer of the said Church. The pursuer did not, however, transmit to the Church treasurer the said sums handed to him as aforesaid. At this time it is believed he was in embarrassed circumstances, and it was matter of common report in Braes and Portree that he did not account to the treasurer of the Church for the sums paid to him by the said collectors as aforesaid, but applied the same to his own purposes.”

With regard to the occasion on which the slander was said to have been uttered, the defender averred that what he said was said in response to the invitation of the moderator of the Presbytery, who proceeded upon a request by the pursuer that the Presbytery should effect a reconciliation between him and the defender.

The defender pleaded, inter alia—“(3) The statements by the defender having been made in good faith to a competent court appealed to by the pursuer for that purpose, and in response to an invitation from it, the same are privileged.”

There was no plea of veritas.

After sundry procedure a proof was allowed by which the following facts were established:—Previous to 23rd February 1892 the pursuer and the defender were, the former for about thirty years, and the latter for about five years respectively, elders and members of the Kirk-Session of the Free Church congregation at Portree. For some time prior to that date the pursuer had also been catechist in connection with that congregation at Braes. In 1890 the pursuer was in embarrassed circumstances, and his salary as catechist was arrested for a debt due to the Caledonian Banking Company, Limited. The pursuer's salary as catechist was his sole means of support, and the great majority of the people of Braes among whom he lived and worked, sympathising with him in being deprived of his livelihood, determined, instead of giving their usual contributions to the funds of the Free Church, to give all they could spare to the pursuer personally. On a certain Sunday in September 1890 the defender, who was conducting a service for the pursuer at Braes, intimated that during the ensuing week the collectors for the funds of the Free Church would go round and make the collections. The collectors accordingly went round the people and collected money from them, but they were directed by the large majority of the contributors, instead of handing the contributions to the treasurer of the Free Church, to hand them to the pursuer for his own use, as it was their desire that the money should be paid to him and not to the Free Church. The collectors accordingly paid the money given to them with these directions to the pursuer, who retained it for his own use. The collectors who had acted in this manner were subsequently summoned before the Deacon's Court of the Free Church congregation at Portree, and remonstrated with for what they had done. They were told not to do so again, and they promised that they would not. There was also a good deal of talk in the parish of Portree with regard to the conduct of the collectors and the pursuer in regard to this matter.

On 22nd February 1892 the Kirk-Session of the Free Church congregation at Portree, after investigation into the conduct of the pursuer with reference to the collection on his behalf, and also with reference to certain charges made by him in the course of his bankruptcy examination against the agent of the Caledonian Banking Company, Limited, who was a fellow elder in the Free Church, dismissed the pursuer from his office of catechist, but allowed him to retain his office as an elder and member of session until he retired of his own accord in May 1893. The defender took an active part in the investigation into the pursuer's conduct, and voted for his dismissal. Thereafter the pursuer and defender ceased to be on friendly terms.

Prior to May 1893 a number of persons, including the defender, formerly connected with the Free Church congregation at Portree, seceded from the Free Church, and along with others, formed themselves into another body, which assumed the name and designation of the Free Presbyterian Church of Scotland.

The pursuer was desirous of becoming connected with this new religious denomination,

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and attended their meetings. On July 4th 1894 he wrote the following letter and sent it to the members of the Presbytery of the Free Presbyterian Church of Scotland:—“Rev. and Dear Sir,—Would you, as a member of the Free Church Presbytery of Scotland, be kind enough to take the following into your consideration and to report the same to the first meeting of your party. You are probably aware that some difference arose between Mr Neill MacKinnon, elder, and me two years ago. Owing to that difference I am unable to associate so freely with Secession Congregation in Portree as I otherwise would. Having repeatedly spoken without any effect to various members of the Presbytery to take the matter into consideration, and if possible, without any prejudice to truth, to effect a reconciliation between Mr MacKinnon and myself, I now make my last appeal to your body to take cognizance of my case. In making this appeal to you I am persuaded that I am soliciting nothing else than what the Word of God recommends should be done under such circumstances. If you fail in doing this I shall feel obliged to sever my connection with your body, as well as to make a public declaration of what I consider to be the true state of the issues at stake. It does not, I think, augur very well for the success of your party if at such an early stage of its existence you can afford to ignore a rule of procedure so clearly set down in the Word of God. There are many who will be but too glad to see breaches in our ranks here. I should be very sorry to give any occasion for such rejoicing, but in fairness to myself I shall feel obliged to take the course I have indicated in the event of the Presbytery continuing to deny my request. This letter is strictly private, and if I am under the necessity of dissenting from the Presbytery of Scotland, and give reasons for my dissent, the correspondence between me and Mr MacKinnon and the Presbytery of your Church will be given to the public in full.— I remain, Rev. and dear Sir, yours sincerely, “Donald M'Neill.”

In consequence of this appeal the matter was taken up at a meeting of the Presbytery held at Portree on 13th August 1894 at which both the pursuer and the defender were present. The defender was a member of the Presbytery. The pursuer's letter was read to the Presbytery, and the parties were called upon to speak to the matter therein referred to. The defender thereupon, in the course of conversation on the matter, used these words—“Have you” (meaning the pursuer) “kept the money that should have gone to Edinburgh?” The pursuer then flew into a violent rage, and his conduct was such that the Presbytery did not consider it advisable to proceed further in the matter. No record of this part of the business, or of the conversation between the parties, or between either of them and members of Presbytery, was entered in the minutes, and the clerk deponed that he made this omission in accordance with the instructions of the meeting. Mr Donald Macfarlane, minister of the Free Presbyterian Church at Raasay, who was moderator of the meeting, deponed as follows—“Before the meeting commenced, we, the members of the Presbytery, had agreed among ourselves privately that nothing was to be said at the meeting regarding the questions in dispute between the pursuer and defender, and that is the reason that nothing appears in the minutes regarding the matter. At the request of Mr M'Neill the matter was allowed to be taken up between themselves and settled as Christian brethren.”

The defender deponed—“I don't know that the charge against the pursuer having appropriated money belonging to the Church was proved or not … I found out, to the satisfaction of my own mind, that the report as to pursuer's honesty was well founded and true. It was my wish that M'Neill should be dealt with by the Session … I don't yet believe that the money was collected for M'Neill, but I believe the money was given to him by the collectors. (Q) Are you in the belief that the money collected by these men, and which was given to M'Neill, was Sustentation Fund money, and should have been by them given towards the Sustentation Fund?— (A) I believe that.… There was a report out that pursuer appropriated money belonging to the Free Church, and I wanted him to clear himself before I would have anything to do with him.… I would not have anything to do with him until he would make a thorough confession. I was not to be the judge of his confession or fault.”

By interlocutor dated 16th March 1898 the Sheriff-Substitute ( Fraser), after sundry findings in fact, found in law that the defender had falsely and maliciously slandered the pursuer, and was liable to him in damages: Assessed the damages at the sum of £30: Repelled the defender's defences and pleas, and decerned against him for said sum of £30, with expenses.

Note.—“The defender has pled ‘privilege’ against the pursuer, and I have repelled the plea, because, as I think, the circumstances of the case did not call for or warrant it. The meeting on the 13th August 1894, at which the defender slandered the pursuer, was not then constituted as a church. It was simply a private meeting of five or six men who were trying at the time to form a church. The meeting refused to take up or consider the case between the pursuer and defender.

The action is founded upon a statement alleged to have been made by the defender at a meeting held at Portree for the purpose of forming a new church, and the first point to be considered is, whether the alleged statement, or any statement having or bearing the same meaning, was really made by the defender. At the commencement of his examination as a witness for the pursuer he readily and distinctly denied that he made any such statement; but subsequently, in course of the same examination, he admitted that he did make a statement at the meeting on the occasion referred to, which, though it is not exactly

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in the same words as those alleged by the pursuer to have been used, I take as having the same meaning. This admission by the defender is to my mind a sufficient admission of his guilt of the charge made against him by the pursuer.

The next point to be considered is whether the statement as now admitted was a true or a false one. As bearing upon that it must be borne in mind that in course of his examination he confessed that he believes that the men mentioned in the minutes of evidence as collectors paid the money received by them in September 1890 to the pursuer, and the men referred to have sworn that they collected the money for and paid it to the pursuer by express instructions from the contributors. This I think sufficiently disposes of the charge of dishonesty made by the defender against the pursuer.

It will be observed that the defender has stated that he does not know whether the charge of dishonesty against the pursuer was proved or not, but he has added that the pursuer was dismissed from office, and that he (defender) in course of his investigations found out to the satisfaction of his own mind that the report which was current in the district as to the pursuer's dishonesty was well founded and true. At anyrate he acted at the meeting of the Kirk Session as one fully convinced upon the point, and voted for the dismissal of the pursuer.

On the whole, and after repeated and careful consideration of the record and evidence, I have come to the conclusion that the pursuer has proved the slander condescended on, and is entitled to obtain decree for damages as prayed for in the original petition.”

The defender appealed to the Court of Session, and argued—(1) In view of the pursuer's own averments and the letter which he wrote, it clearly appeared that the occasion was privileged. There could be no doubt that this would have been the case if this had been a meeting of a Presbytery of the Established Church. But as regards this question there was no difference between the governing bodies of the Established Church and those of dissenting churches— Gibb v. Barron, July 1, 1859, 21 D. 1099; M'Millan v. Free Church, July 9, 1862, 24 D. 1282; Edwards v. Begbie, June 28, 1850, 12 D. 1134. See also Hamilton v. Hope, March 10, 1827, 5 S. 569, which was a case of words uttered at a meeting of a University Senatus. The criterion in all such cases was whether there was legitimate occasion to speak the words complained of, and it did not matter in this view whether the meeting was a duly constituted presbytery or not, or whether the matter was dealt with as part of the formal business or not. Here, at the least, the words complained of were used in consequence of the pursuer's request that his fellow-Christians should endeavour to bring about a reconciliation between him and the defender. (2) Malice was not proved. The defender only spoke when requested. His words were based upon the result of investigation and in consequence of the fama against the pursuer. Moreover, all he did was to ask the pursuer a question.

Argued for the pursuer and respondent— The ground of privilege averred—namely, that the defender had spoken in response to a request of the moderator of the Presbytery— was not proved. The pursuer asked that the difference between him and the defender should be inquired into by the Presbytery, but the Presbytery did not do so. The matter was not dealt with as part of the regular Presbytery business, and the persons present merely acted as private individuals and not as a Presbytery. The authorities quoted were therefore inapplicable. [Lord Young referred to Stuart v. Bell [1891], 2 Q.B. 341, per Lindley, L.J., at page 350.] Even if the occasion was privileged, malice was proved. The defender persisted in making this charge against the pursuer after it had been shown beyond all reasonable doubt that the money which he kept had been subscribed for him personally and not for the Church. That was sufficient proof of malice— Shaw v. Morgan, July 11, 1888, 15 R. 865, per Lord Young at page 871.