Scottish Court of Session Decisions

On 11th August 1905 John Campbell, Welton Farm, Blairgowrie, brought an action against Major Archibald Hamilton Cochrane of Dalnabreck, Ballintuim, Blairgowrie, to recover £500 as damages for slander contained in two letters written by the defender to the pursuer's agents. Campbell had been engaged by Major Cochrane's gamekeeper (Ross) to manage a small farm for his master. In the course of his work he considered he was interfered with by Ross and saw his master with regard to the matter, and shortly afterwards, at a second interview, he was dismissed on a month's notice. Having taken legal proceedings for wrongous dismissal he was successful in his action, and it was in the negotiations prior to that action that the letters complained of were written.

The pursuer averred—“With that object”—[ i.e., to get his relations with Ross put on a proper footing]—“the pursuer called upon the defender on the evening of Monday, 31st August 1903, and desired that a meeting be arranged by the defender at which Ross should be present, as he deemed it unfair to make any statement about Ross until he should be present to hear and answer same. The defender took offence at the attitude of the pursuer in insisting that Ross be present at the interview, and, becoming angry, replied that if Ross was interfering with his work, it was no business of the pursuer's whatever, and that he would not tolerate complaints from servants, and he could not have anyone about his place that would

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find fault with Ross, and to remember that he was master there and no one else. Still in a temper, he discussed with the pursuer the terms of his engagement as arranged with Ross, and admitted that he was bound by these terms, and agreed to have a meeting of parties in his presence on the following Wednesday, at which the subject could be fully discussed. Up to this date the defender personally had acted towards the pursuer in a kindly manner, and indicated that he appreciated the services of the pursuer and his wife. As the result of the said meeting, however, the defender conceived a strong dislike to the pursuer. On the … 2nd September the pursuer, Ross, and defender met in front of Dalna breck House, and the terms of the pursuer's engagement were discussed. Ross, in reply to a question from the defender, stated that he had no recollection of what he had said at his meeting with the pursuer in April prior to the engagement, and stated that he did not remember what he had said about butter on that occasion. He further declined to contradict the pursuer's narrative of the terms of his engagement. The defender then told the pursuer that he could not find fault with Ross, as Ross had been with him for over five years, and that the pursuer would have to leave, and that he would get a month's warning. The pursuer replied that he was a yearly engaged servant, to which the defender rejoined that he was not, and that he considered all servants were monthly servants. The defender added that he knew the law well, for he had been a justice of the peace and had sat on the justice bench in England and that the law was the same in Scotland as in England. The pursuer replied that ‘that might be the case in England, but it was not in Scotland,’and he declined to accept the statement as correct. The defender thereupon became very angry at the pursuer for daring to contradict his statement of the law in Scotland, and the personal dislike to the pursuer which he had conceived at the previous interview became very much increased and very pointed.… The defender closed the interview by giving pursuer one month's notice to leave, repeating that he would have no one about the place that would find fault with Ross.… It was well known not only to the defender but also to Ross and the other outdoor servants as well as the indoor servants of the mansion-house who came to the dairy for supplies, that the pursuer was taking an allowance of 1 Ib. of butter or less per week, and he did so quite openly as part of the stipulated remuneration for his own and his wife's services at Dalnabreck. At the interview on 2nd September foresaid the defender accepted the pursuer's claim to butter as a right in terms of his engagement, and from that date onwards until he quitted the defender's service the pursuer continued to take the allowance of butter to which he had a right. So far from the defender offering any objection to that course he knew it was being taken as before and acquiesced in that. The defender did not on that or any other occasion suggest to the pursuer personally that the latter was stealing his property nor use any language that would bear that inference. On the contrary he was so well satisfied with the absolute truth of the pursuer's narrative of the terms of his engagement that the defender upbraided the gamekeeper Ross for having given such goodterms.… The pursuer consulted Mr

Nelson, solicitor, Blairgowrie, withreference to the notice given to him to leave whereby his yearly engagement was brought to an end at the Martinmas term in place of the following Whitsunday. Mr Nelson, by letter to the defender, dated 2nd February 1904, intimated the details of the pursuer's claim for reparation and inquired whether he had any proposal to make for settlement. The pursuer being reluctant to take court proceedings desired that the defender should have a full opportunity of settling amicably. By letter, dated 4th February 1904, the defender replied to Mr Nelson as follows, viz.—‘In answer to your letter of February 2nd, I write to inform you that John Campbell was not engaged by me by the year, but on the same condition as all my other servants—one month's notice on either side; also I may inform you that the reason of Campbell's dismissal was that I found him appropriating my butter to his own use, which butter he was in duty bound to deliver at my house.’ The said letter is produced herewith and referred to. The statement in said letter that the pursuer was found by the defender ‘appropriating ’ his butter ‘for his own use’ was false, malicious, and calumnious, and was intended to mean and does mean that the pursuer had dishonestly appropriated and stolen butter belonging to the defender. The defender well knew that the only question under discussion was the duration of the pursuer's contract of service, and the said malicious statement contained in said letter was gratuitous and unwarranted, and was false in the knowledge of the defender, and was uttered without any cause. It was wrongfully made for the purpose of gratifying his animus against the pursuer, and in so uttering the said slander the defender was giving way to the malice and ill-will he had conceived against the pursuer, before condescended on. (Cond. 10) The pursuer's agent Mr Nelson, in reply by letter dated 5th February, remarked that according to his information the defender was in error when he said that the pursuer was engaged by the month, and as a final effort to avoid court proceedings he suggested that the pursuer was quite prepared to meet the defender in an amicable settlement if possible. The defender immediately replied by letter, addressed to the said Mr Nelson, dated 6th February 1904, that it would serve no good purpose to argue in this matter, and added these words, inter alia, viz.—‘I do not anticipate any difficulty in proving that Campbell did dishonestly take my butter.’ That statement charging the pursuer with dishonesty is a repetition of the gross slander narrated in the preceding article.

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It was false, malicious, and calumnious, and was intended to mean, and did mean, that the pursuer was a dishonest man and a thief, and had theftuously and feloniously taken the defender's butter. The defender well knew that the only question under discussion was the duration of the pursuer's contract of service, and the said malicious statement contained in said letter was gratuitous and unwarranted, and was false in the knowledge of the defender, and was uttered without any cause. In so repeating the said slander the defender was giving way to the malice and ill-will he had conceived against the pursuer, before condescended on, and the slander was uttered for the purpose of gratifying his personal animus against the pursuer.” …

On 10th November 1905 the Lord Ordinary ( Ardwall) pronounced the following interlocutor:—“Repels the first plea-in-law for the defender: Allows amended issues to be lodged as proposed at the bar, and, that having been done, approves of the said amended issues, and appoints the same to be the issues for the trial of the same.”

Opinion.—.… “I have at present to decide whether the pursuer has set forth a relevant case. The first contention put forward by the defender in support of his plea against the relevancy is that there is here a case of absolute privilege, and he relied on the case of Watson v. Jones and M'Ewan, [1905] A C 480, in support of this contention. I think Watson v Jones and M'Ewan was concerned with a very different question from the present, namely, what privilege a witness had in the preliminary stages of an action before he entered the witness-box. A witness has an absolute privilege as was established in that case, and as was understood, though not decided to be the law before that case came up, and the other case of Rome v. Watson, 25 R. 733, cited for the defender, was a case establishing the absolute privilege of a counsel or solicitor speaking on behalf of a client.

“The statements in the letters complained of here are not statements either of a counsel or of a witness; they are letters written by one of the parties to a dispute to the agent of the opposite party, who is about to raise an action against him. Now, undoubtedly letters written in these circumstances are entitled to a privilege, and a privilege of a very high order. They were written in answer to letters which very naturally elicited the statements which are made, but they are not, in my opinion, entitled to the absolute privilege which has been applied to the case of witnesses, advocates, or solicitors. They enjoy a privilege more resembling the privilege which attaches to statements on record in ordinary cases of judicial slander. I therefore hold that the plea against the relevancy, so far as founded on absolute privilege, must be repelled.

“These letters being privileged, as a consequence malice must be relevantly averred on record, together with facts and circumstances from which malice may be inferred. Now that is the question of difficulty here, whether the averments of malice set forth on record by the pursuer are sufficient. I must say that, taking a general view of the case, I think it rather improbable that this old gentleman of 85 was actuated by malice towards this servant whom he knew very little about, and who was just treated in the ordinary way a master would treat a servant with whom he had a dispute; but while that may be my impression upon the general view of the case, I am bound to examine the specific statements made on record, and, examining these, I am forced to the conclusion that a relevant case of malice has been here averred, because the general statement of the pursuer comes to this, that a question arose about the terms of the pursuer's engagement, whether it was an engagement terminable on a month's notice, or whether it was an engagement for a year. The pursuer practically says that in the course of this dispute the defender improperly dismissed him upon a month's notice, on the ground, first of all, that that was according to the terms of his engagement; but he says the defender further, in order to justify this dismissal, brought into the question of dismissal the other question about the appropriation of butter by the pursuer. Now the suggestion is, all through the pursuer's record, that this was a sort of afterthought, and in support of that it is said in article 8 of the condescendence that it was very well known both to all the other servants and also to the defender that the pursuer was taking this butter, that he was taking it quite openly as part of his remuneration, and that he was also taking it even after his dismissal as long as he remained at the defender's farm, and that, notwithstanding all that, the defender put forward this appropriation of butter both in the letters which are complained of and in the record as a serious offence against honesty which justified the dismissal of the pursuer. Now, these are circumstances from which I think malice might be inferred.

“But the matter does not altogether stop here, because the pursuer not only avers these circumstances, but further avers very specifically that at a meeting on 2nd September 1903 the defender got into a war of words with him, first about the law of Scotland as compared with the law of England, and in the next place with regard to the attitude of the pursuer towards Ross, the gamekeeper, who was apparently a sort of factotum in the absence of the defender at his English residence, which lasted most of the year, he being only in Scotland for some three months in the autumn. Now, the pursuer says that the defender lost his temper with him at that time, and the result was a personal dislike to the pursuer on the defender's part which lasted down to the present date. Now, that may be perfectly unfounded or imaginary, but it is averred on record, and of course if the pursuer makes a statement that the defender was actuated by personal

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dislike in what he said or wrote, that is a case of malice. Accordingly, whatever may turn out to be the truth of this case, which I regret has been brought before me at all, I think I must hold that on the record as it stands sufficient facts and circumstances are averred from which malice may be inferred. I accordingly will allow the issues, amended as I have suggested.”

The issues allowed were—“(1) Whether on for about 4th February 1904 the defender wrote and sent, or caused to be written and sent, to J. Sidey Nelson, solicitor, Blairgowrie, a letter in the terms second set forth in Schedule I annexed hereto; whether said letter is of and concerning the pursuer, and falsely, calumniously, and maliciously represents that he had stolen butter belonging to the defender, to the loss, injury, and damage of the pursuer? (2) Whether on or about 6th February 1904, the defender wrote and sent, or caused to be written and sent, to J. Sidey Nelson, solicitor, Blairgowrie, a letter in the terms second set forth in Schedule II annexed hereto; whether said letter is of and concerning the pursuer, and falsely, calumniously, and maliciously represents that he had stolen butter belonging to the defender, to the loss, injury and damage of the pursuer?”

The defender reclaimed, and argued—No facts and circumstances were averred on record sufficient to infer malice. Moreover, the communications complained of were absolutely privileged— M'Ewan v. Watson, [1905] AC 480, July 28, 1905, 42 S.L.R. 837. if such a rule of law were set up as was here propounded, all approach to a settlement in similar cases would be barred.

Argued for pursuer—The Lord Ordinary had indicated two grounds for holding that facts and circumstances were set forth sufficient to infer malice. His judgment should be affirmed. On challenge the defender had given a false reason, not in his mind at the time of dismissal, for that act, and the knowledge he had that it was false inferred malice. There was on record a relevant averment of ill-will to the pursuer, and that in consequence the slander was uttered. In any case, the privilege was not absolute, and the case of Macdonald v. M'Coll, July 18, 1901, 3 F. 1082, 38 S.L.R. 781, gave the rule as to what extent facts and circumstances must be averred.

Senior counsel were not called upon.