Scottish Court of Session Decisions

Henry Richard Pope brought four actions of damages for slander against the following defenders—(1) George Outram & Company, Limited, proprietors and publishers of the Glasgow Weekly Herald; (2) Edinburgh Evening News, Limited, proprietors and publishers of the Edinburgh Evening News; (3) Alexander Marr, proprietor and publisher of the Aberdeen Free Press and the Evening Gazette; and (4) D. C. Thomson & Company, Limited, proprietors and publishers of the Evening Telegraph and Post.

The four actions were founded on the publication of similar paragraphs in each of the newspapers, and the question in each case was substantially the same. This report is based on action against Outram & Company.

The article complained of was—“ Strange New York Divorce Suit. Remarkable Revelations.—A curious divorce suit, in which London figures to a large extent, began in the Supreme Court of New York a week ago. The petitioner for a separation is Mrs Ida Elizabeth Ensign, and the respondent Mr Henry Asher Ensign, a well-known New York banker. The husband counter-sues for divorce, naming Mr H. R. Pope, an automobile dealer of London, as co-respondent. The latter, who is defended by ex-Governor Black and Judge Olcott, two of the most famous lawyers in this country, joins with Mrs Ensign in vehemently denying the allegations. The petitioner (says the Daily Telegraph correspondent) specified numerous acts of cruelty. One night in New Mexico she says her husband drove her out of the window and compelled her to stay till daybreak on the lawn in her night

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clothes. Another time he threatened to shoot her at the Marie Antoinette Hotel, New York. In the cross-suit the husband makes the remarkable allegation that he first met his wife in Piccadilly in July 1898, and, ‘blinded by uncontrollable infatuation,’ married her within a month, in order to reform her. He asserts that at the time of the marriage she was already the wife of a Mr Ramsay Kennedy of Glasgow, an assertio'n which Mrs Ensign indignantly denies. The respondent imputes misconduct to Mr Pope during a trip to Switzerland. Mrs Ensign, who is a beautiful woman and who seems perfectly refined, says her family live in Surrey, and that she has come to this country to fight for the honour of herself and those dearest to her. The husband sailed in the ‘Republic’ last week for the Mediterranean. In Mr Ensign's counter-petition he denied all the charges of cruelty, describing his association with the alleged Piccadilly girl in the following quaint fashion—‘It was a chance acquaintance, but I was so captivated with her beauty and her winning ways that a few days only were sufficient to convince me that I could never live quite happily without her, and about a month thereafter we were married at St Martin's-in-the-Fields. I had deceived myself into the belief that by a life's devotion I could so educate and purify her mind that some day she would be a woman that any gentleman might proudly call his wife, and I loved her with all my heart and soul. I have given her unselfish and absolute devotion, and the tenderest care. I early sent her to a first-class boarding-school, that she might there improve the mere rudiments of education she possessed, but she would not study. I provided her with private tutors, introduced her to the best society in England and in this country, and surrounded her with those requirements and those influences of a Christian life to which she in early years had been a stranger. This I did in order that she might forget for all time the allurements of the abandoned life she once had led, and become imbued with the ideals of refined and virtuous living, with the true felicity of married life, and with the sacredness of home—but she would have none of it.’ Mr Ensign then set forth that his wife, in following the inclination of her mind, would try to show it outwardly by blackening her eyebrows, powdering and painting her cheeks. ‘I did, in fact, restrain her, for when I came home at nights and found her make-up, such as no decent woman would consent to meet her, it nearly drove me mad.’ Mrs Ensign denied the insinuation, asserting that her husband possessed an ungovernable temper.”

The pursuer averred—“(Cond. 2) In November 1906 Mrs Id Elizabeth Ensign, residing at 7 Holies Street, Cavendish Square, London, wife of Henry Asher Ensign, banker, New York, filed a petition in the American Courts for a judicial separation from her husband on account, of his cruelty. As a defence to the said action, answers were lodged by the said Henry Asher Ensign. He also counterclaimed for absolute divorce on account of his wife's misconduct. In his pleadings in said action the said Henry Asher Ensign also made various scurrilous allegations regarding his wife's moral character, and in particular accused her of adultery with the pursuer. The action was set down for trial for the 31st October 1907 on the following issues, viz.—'1. Was the plaintiff at the time of her marriage to defendant, to wit, on or about the 27th August 1898, already the legal wife of Ramsay Kennedy of Glasgow, Scotland? 2. Did the plaintiff, on or about the month of August 1906, at the White Hart Hotel, Lincoln, England, commit adultery with one H. R. Pope?’ At the calling of the case the said Henry Asher Ensign made no appearance, and the judge accordingly directed the jury to find for the plaintiff in said action— i.e., the said Mrs Ensign—on both issues. (Cond. 3) In their newspaper, of date 9th November 1907, the defenders printed and published an article with the following headings in large type—‘Strange New York Divorce Suit. Remarkable Allegations.’ Said article is in the following terms, viz.—[ quotes article v. supra]. (Cond. 4) The said article falsely, maliciously, and calumniously represents that the pursuer had been guilty of adultery with Mrs Ensign; that he had committed adultery with her on the occasion of a trip which he had with her to Switzerland; that he was the friend and associate of a woman of ill-fame, who had been a street walker and a prostitute and had led an abandoned life; that he was of grossly immoral character and unfit to mix with people of respectable character. The said representations are false and have no foundation in fact, and in publishing them the defenders acted recklessly without regard to their truth or to the feelings and reputation of the pursuer. Moreover, the article complained of was not a fair and accurate report of the pleadings and proceedings in the said action, but, on the contrary was misleading and untruthful in certain important respects, and was calculated to give the public an erroneous impression as to the true position of the parties and the facts of the case. In particular, it unfairly and untruly represents that what it describes as ‘a curious divorce suit,’ in which the pursuer figured, was then proceeding in the American court, and that the allegations against Mrs Ensign and the present pursuer were to be the subject of judicial inquiry and determination. The truth was, as the defenders knew, or ought to have known, at the time of the publication complained of, that the case had terminated by a verdict in favour of Mrs Ensign on both the issues quoted in article 2 supra, which had the effect both of establishing her innocence of the charges brought against her by her husband and of negativing the issue regarding her alleged adultery with the pursuer on the occasion mentioned in the second issue. The verdict of 31 st October was cabled to the press of this country before 1 st November, and was published

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in this country on the morning of 1 st November 1907. Moreover, the statement in the said article that Mr Ensign in the said action of divorce imputed misconduct to the present pursuer during a trip to Switzerland was untrue in point of fact, and was not warranted by anything contained in the said issues and in anything in the settled or final pleadings in the divorce action or by anything which took place in court. In that respect the said article was an unfair and inaccurate report. Further, the said article unfairly did not disclose what was the fact, viz., that in the early stages of the proceedings Mrs Ensign's husband had made counter charges against Mrs Ensign which had been struck out of his pleadings by order of the court. The defenders have already admitted, and it is the fact, that the article which was published by them as aforesaid gave an inaccurate account of the proceedings in the said divorce suit, and they have apologised to Mrs Ensign for the pain and annoyance which the publication had caused her.” [The words printed in italics in condescendence 4 were added by minute of amendment.]

The defenders pleaded—“(1) The pursuer's averments being irrelevant and insufficient to support the conclusions of the summons, the action should be dismissed. (3) The paragraph complained of being a fair and accurate report of the pleadings and proceedings in a public court of record, the defenders are entitled to absolvitor. (4) The said paragraph not being defamatory of the pursuer, the defenders should be assoilzied.”

On 18th July 1908 the Lord Ordinary ( Guthrie) approved of an issue in these terms—“It being admitted that the defenders printed and published in the Glasgow Weekly Herald newspaper of 9th November 1907 the headlines and paragraph contained in the schedule hereto annexed: Whether the statements and representations contained in said headlines and paragraph are of and concerning the pursuer, and falsely and calumniously represent that the pursuer had committed adultery with a married woman, to the loss, injury, and damage of the pursuer.” [The schedule contained the paragraph quoted supra.]

Opinion.—“I allow the issue in view of the pursuer's amended record. If, in the circumstances now alleged, the defenders knew or ought to have known that the serious charge against the pursuer to which they had given currency had been, by the time their sensational article appeared, judicially negatived, it was their duty, if they said anything about the matter, to state the whole facts up to date. If they did not do so, the result in law was that they adopted the slander, and the ordinary form of issue must be allowed.”

The defenders reclaimed, and argued—(1) The paragraph contained no slanderous matter, because it did not represent that the pursuer had been guilty of adultery, but only that he had been called as a party in an action of divorce, and that he denied the averments of the pursuer in that action regarding him. (2) The paragraph complained of being a report of proceedings in open Court was privileged if fair and accurate. It was no doubt true that the question whether a report was fair and accurate was for the jury, but the pursuer must nevertheless aver in what respects the report was unfair or inaccurate, and it would be for the Court to determine on these averments whether there was a relevant case to go to the jury— Kimber v. The Press Association, L.R. 1893, 1 K.B. 65. Here the only complaint made against the report was that it did not give the result of the pleadings. That was not a relevant averment of unfairness or inaccuracy unless a newspaper could be made liable for not employing the best means of keeping its news up to date. The mere fact that prior to publication something else had happened could not make a report, otherwise fair and accurate, slanderous. Further, a report did not cease to be fair and accurate because it was published in two issues of a newspaper instead of one. There was nothing in the pursuer's averments to negative the view that the result of the action was published in the succeeding issue. The case of Grimwade v. Dicks and Others, 1886, 2 T.L.R. 627, founded on by the pursuer, had no application, because there the paragraph complained of was an inaccurate report. The amendment did not make the record relevant unless it could be affirmed that the knowledge of one newspaper laid a duty on all others. There could be no such duty unless every newspaper took the risk of the accuracy or inaccuracy of every other newspaper.

Argued for the pursuer—(1) The paragraph contained a slander. If Ensign had published such statements he would have been liable in damages, and the newspaper was equally liable for giving currency to them. (2) To publish pleadings in Court was prima facie a wrong— Richardson v. Wilson, November 18, 1879, 7 R, 237, 17 S.L.R. 122, per Inglis, L.P.: Wright and Greig v. Outram & Co., July 17, 1889, 16 R. 1004, 26 S.L.R. 707; Macleod, v. Justices of Peace of Lewis, December 20, 1892, 20 R. 218, 39 S.L.R. 186; Stevens v. Sampson. 1879, L.R., 5 Exch. Div. 53. In such a case it was for the defenders to show that the publication was a fair and accurate report of proceedings in open Court— Wright and Greig v. Outram & Co., March 11. 1890, 17 R. 596, per Lord Kyllachy at p. 598, 27 S.L.R. 482, at p. 484: Kimber v. The Press Association, cit.,— Grimwade v. Dicks and Others, cit.; M'Dougall v. Knight & Son, 1886, L.R., 17 QBD 636, per Fry, L.J., at p. 642. The pursuer did not admit that the paragraph complained of was a report of proceedings in open Court. (3) The innuendo put upon the paragraph was one which it was capable of bearing, and the pursuer was entitled to have the case sent to a jury on the issue approved by the Lord Ordinary— Ritchie & Co. v. Sexton, March 19, 1891, 18 R. (H.L.) 20, per Lord Herschell, 28 S.L.R. 945; Neilson v. Johnston,

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February 8, 1890, 17 R. 442, 27 S.L.R. 333; Wright and Greig v. Outram & Co., July 17, 1889, 16 R. 1004, 26 S.L.R. 707.

At advising—