Scottish Court of Session Decisions

[Reference is made to the case of Leon v. The Edinburgh Evening News, Limited, May 13, 1909, ante p. 705, in which the case now reported was referred to.]

On 9th March 190S the Grand Theatre and Opera House, Glasgow, Limited, brought an action against George Outram & Company, Limited, proprietors and publishers of the Glasgow Evening News, in which they claimed £2500 as damages for slander alleged to be contained in the heading of a newspaper paragraph published by the defenders.

The heading and paragraph were as follows:—

GLASGOW THEATRE SURPRISE.

‘ Grand’ to be Wound Up.

Petition in Court.

“ Edinburgh, Saturday.—A petition was presented to the First Division of the Court of Session to-day by Richard Waldon, theatrical manager, Crosslees House, Thorn—liebank, and William Campbell, house factor, 3 Dundas Street, Glasgow, for the winding up of the Grand Theatre and Opera House (Glasgow), Limited.… [ This paragraph narrated how the petition, came to be presented and was not complained of ] … The company, it is said, has spent all its capital, and cannot carry on business, and should be wound-up by the Court. The petitioner Waldon holds 100 preference and 1041 ordinary shares, and the petitioner Campbell holds 50 preference and 190 ordinary shares. Apart from ordinary trade debts, which are of no great amount, the only liabilities of the company are the bond for £7500 and another in an adjoining property for £1500, the debentures for £4000, and the £3000 loan from the bank. The theatre and adjoining property have been valued at £31,000, and if the sale is effected there will be a considerable surplus of assets available for divison. It is expedient that the company should be sold as a going concern, but should be carried on meantime, as Fred Karno is to produce a pantomime early in December. It is suggested that the liquidator should be authorised to borrow £1000 to carry on the business.

“Intimation was ordered of the petition.”

The pursuers averred—“(Cond. 3) On 23rd November 1907, the date on which the First Division ordered intimation, advertisement, and service of said petition, the defenders published in the most prominent part of the Glasgow Evening Times, a paragraph with a heading in very large type, as follows:—‘Glasgow Theatre Surprise.’ ‘Grand to be wound up.’ By the said heading and paragraph the defenders falsely, calumniously, and maliciously stated and represented to the public that the Grand Theatre was insolvent and bankrupt; that a winding-up order had been pronounced by the Court in consequence of the inability of the company to pay its debts; and that the said company was to be wound-up.”

They proposed this issue—“It being admitted that the defenders printed and published in the Glasgow Evening Times newspaper of 23rd November 1907 the heading and paragraph contained in the Schedule hereto annexed—Whether the statements and representations contained in the said heading are of and concerning the pursuers' company, and falsely and calumniously represent that the pursuers' company had become bankrupt, and that the Court of Session had pronounced an order for the winding up of the pursuers' company, to the loss, injury, and damage of the pursuers? Damages laid at £2500.” [A schedule containing the report followed.]

On 21st May 1908 the Lord Ordinary ( Guthrie) dismissed the action as irrelevant.

Opinion.—“In this case the question, as raised by the issue, is limited to the one matter of the meaning, when fairly read by a reasonable reader, of the headlines and paragraph complained of, which appeared on 23rd November 1907 in the defenders' paper, In condescendence 3 the other question is raised as to whether the defenders made an illegitimate use of ex parte averments contained in a certain petition by publishing them at a particular stage of Court procedure, but no issue is taken upon this question.

In regard to the question which forms the matter of the issue, it is clear enough that, if the issue is allowed, it would require to read—‘Whether the statement and representation contained in the said heading and paragraph are of and concerning the pursuers,’ and so on. Taking the two together, it appears to me that the pursuers have not made a relevant case. In the first place, it is clear on the authorities that the two must be read together. They do not require to be read carefully, as one

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reads a deed of entail, but as a casual reasonable reader—a layman—would read an ordinary newspaper paragraph.

There is no complaint of the terms of the paragraph itself. It is carefully framed and brings out distinctly that the facts averred are a mere echo of what is contained in the petition.

The complaint is limited to the heading, which runs—

Glasgow Theatre Surprise.

‘Grand’ to be Wound-up.

Petition in Court.

The heading must be taken as a whole. In condescendence 3 the heading is quoted without the last words ‘Petition in Court.’ If the heading had been so worded the result might have been different. But taking these words ‘Petition in Court’ along with the two preceding lines, I do not think that any person who could be called a reasonable reader would be entitled to come to the conclusion that there had been an order to wind up the company. He would either conclude—as I think a lawyer would—that there was a mere proposal to wind up the company, or he would be doubtful what the words meant. If he were in the latter position, he would go to the paragraph and his doubt would be at once removed, because he would find that all that had been done was that a petition had been presented and intimation ordered. Therefore I do not think there is sufficient ground for the pursuers going to a jury to say whether, in the words of condescendence 3, ‘By the said heading and paragraph the defenders falsely, calumniously, and maliciously stated and represented to the public that the Grand Theatre was insolvent and bankrupt; that a winding-up order had been pronounced by the Court in consequence of the inability of the company to pay its debts; and that the said company was to be wound up.

It is right to add that the ambiguity to which I have referred applies in another view to the second line of the heading. A company may be wound-up without being insolvent. The expression is ambiguous; but the ambiguity disappears when the paragraph to which the heading is a fingerpost is read.

I therefore disallow the issue and dismiss the action.”

The pursuers reclaimed, and argued—The headnote was slanderous, inasmuch as it represented that the reclaimers’ company was to be wound up as insolvent. A slander might be contained in the head—note to a paragraph, though the paragraph itself was not defamatory— Archer v. Ritchie & Company, March 19, 1891, 18 R 719, 28 S.L.R. 547 (Lord M'Laren's opinion).

Counsel for respondent were not called on.