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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Menzies v. Macdonald [1899] ScotLR 36_769 (21 June 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0769.html Cite as: [1899] ScotLR 36_769, [1899] SLR 36_769 |
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The chief-constable of a burgh wrote to the manager of an hotel within the burgh in the following terms:—“ Special Licenses.—Sir,—It has come to my knowledge that on two occasions recently in connection with special licenses
Page: 770↓
in the Palace Hotel the neighbourhood was disturbed by the firing of shots or fireworks there, and I think it right to give notice that if there is any repetition of this or any other breach of the conditions of the license, I will consider it my duty to strenuously oppose the granting of any special licenses to the house in future.—Yours faithfully, John Macdonald, Chief-Constable.” In an action of damages for slander raised by the proprietor of the hotel against the chief-constable, held that the letter contained no charge of a breach of licence, and was not libellous, and the action dismissed as irrelevant.
A.J.P. Menzies, proprietor and occupier of the Palace Hotel, Inverness, raised an action for 1000 damages for slander against John Macdonald, Chief-Constable of Inverness.
The pursuer averred—“(Cond. 2) On or about the 10th of January 1899 the pursuer's manager in the said hotel received from the defender a letter in the following terms:—[ quoted in rubric.] In a subsequent letter from the defender to the pursuer's agent, dated 13th January 1899, the defender specifies the two occasions by date, viz., 7th October 1898 and 7th January 1899. The pursuer believes and avers that no complaint of disturbance on the occasion mentioned was made by any member of the public to the police authorities. The peace of the neighbourhood was in no respect disturbed on either occasion by the pursuer or by any of his employees, nor by anything done by any person in or upon the pursuer's premises. (Cond. 3) On the first of the two occasions above mentioned, viz., on the 7th day of October 1898, the special licence was obtained for a social function over which Sir Robert Finlay, M.P. for the Inverness burghs, and Solicitor-General for England, presided as chairman, and the Provost of the town of Inverness as croupier. On this occasion, in honour of the Member of Parliament in the chair, some fireworks were displayed about 10 p.m., which is the ordinary closing hour, by some of the company on the roof of the hotel, which stands in its own grounds. On the second occasion above mentioned, viz., on the 7th day of January 1899, the special licence was obtained fora dinner of railway engineers. The guests left the hotel before the expiry of the licence, and did not, while within the premises, fire shots or fireworks of any kind. (Cond. 4) The letter of which the pursuer complains charges him with breach of licence on these two occasions. Said charge is false and calumnious, and was made by the defender recklessly, maliciously, and without probable cause. No breach of licence took place on either of the said occasions, and the defender, when he wrote the said letter was well aware that such was the case. The pursuer has never been convicted of breach of licence, nor has he had any notice of a prosecution for breach of licence. He denies that any breach of licence took place on either of these two occasions. The defender has failed to aver any act on the part of the pursuer amounting to a breach of licence, and he was not at the time said letter was written, nor is he now in possession of any information warranting the allegations that a breach of licence had been committed. The pursuer avers that the charge of breach of licence on the two occasions before mentioned is made by the defender in the knowledge that no breach of licence had been committed, and in reckless disregard of the pursuer's interests. The said charges were not made by the defender in the execution of any official duty, but in breach of duty and maliciously, and for the purpose of annoying and injuring the pursuer and his business. (Cond. 5) Further, the said letter, by the use of the words ‘repetition of this or any other breach of the conditions of the licence,’ charges the pursuer with other breaches of the licence which are not specified, or at all events means, and was intended by the defender to mean, that the pursuer had been guilty of other breaches of licence. No breach of licence having ever occurred while the pursuer has held the said licence, and this being within the knowledge of the defender, the said charge or allegation is calumnious and without probable cause, and is made recklessly and maliciously.” (Cond. 6) The said Palace Hotel owing, inter alia, to the exceptional attractions of its situation, arrangements, and fittings, is a favourite rendezvous for social functions of a high class order, for which special licences are frequently required. The defender's said charges of breach of licence, and his threatened action consequent on these unfounded and malicious charges, are in the highest degree injurious to the pursuer and to his business reputation, and endanger the continued granting to him of special licences in the future, and are to the serious loss, injury, and damage of the pursuer and his business. The pursuer estimates the damage which he has and will suffer, and the solatium to which he is entitled, at £1000.”
The defender averred—“On 7th January information was laid before the defender as Chief-Constable of the burgh of Inverness by the constable on duty near the Palace Hotel that on the two occasions, viz., 7th October 1898 and 7th January 1899, when the said Palace Hotel was open at late hours in virtue of special licences, the neighbourhood had been disturbed by fireworks having been let off from the said hotel on 7th October after ordinary closing hours, and by a shot having been fired in front of said hotel at 2·25 a.m. on 7th January 1899, when a party who had been in the hotel in virtue of a special licence was leaving. Neither the pursuer nor his said manager were personally known to the defender. The said letter was written by the defender in the discharge of his duty as Chief-Constable aforesaid and was privileged. It is an implied condition of a special licence that the peace of the neighbourhood should not be disturbed.”
He pleaded, inter alia—“(1) The action is irrelevant.”
On 14th March 1899 the Lord Ordinary (
Stormonth Darling ) approved of an issuePage: 771↓
for the trial of the cause. In this issue malice was not inserted. The defender reclaimed, and argued that there was no relevant case stated on record.
Argued for pursuer—The letter contained a charge by the Chief-Constable against the defender of breach of special licence. This was the only possible meaning of the letter. The licence was that by means of which an innkeeper made his living, and to an innkeeper nothing was so important as that he should retain his licence. To act upon an unfounded rumour and charge the pursuer with breach of licence was libellous on the part of the Chief-Constable, and the action was therefore relevant— Keay v. Wilson, January 11, 1843, 5 D. 407; Carmichael v. Cowan, December 19, 1862, 1 Macph. 204; M'lver v. M'Neil, June 28, 1873, 11 Macph. 777; Macrae v. Wicks, March 6, 1886, 13 R. 732.
The Court recalled the interlocutor reclaimed against, assoilzied the defender from the conclusions of the action, and decerned.
Counsel for the Pursuer— Ure, Q.C,— Cooper. Agent— John A. Tweedie, Solicitor.
Counsel for the Defender— Guthrie, Q.C.— C. D. Murray. Agents— W. & J. L. Officer, W.S.
