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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Dawson v. Giffen [1915] ScotLR 48 (02 November 1915) URL: http://www.bailii.org/scot/cases/ScotCS/1915/53SLR0048.html Cite as: [1915] SLR 48, [1915] ScotLR 48 |
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Page: 48↓
A brought an action of damages against B for slander contained in a letter written by B to A in reply to three letters written by A to B. Three months after the action was raised B brought an action of damages against A for slander contained in the three letters written by A to B. The two actions were tried together before a jury, who found for the pursuers in each case, awarding £180 damages to A and one farthing damages to B. B having moved the presiding Judge for a certificate that the action at his instance was one for vindication of character in terms of the Court of Session Act 1868, sec. 40, A opposed the motion on the ground that B had himself given publicity to the letters by raising his counter action. The presiding Judge granted the certificate. Thereafter B moved in the Second Division for expenses in the action at his instance, and A opposed the motion.
Page: 49↓
The Court ( following Winn v. Quillan, 1899, 2 F. 322, 37 S.L.R. 234) awarded B the expenses moved for by him.
The Court of Session Act 1868 (31 and 32 Vict. cap. 100), section 40, enacts—“Where the pursuer in any action of damages in the Court of Session recovers by the verdict of a jury less than five pounds, he shall not be entitled to recover or obtain from the defender any expenses in respect of such verdict unless the judge before whom such verdict is obtained shall certify on the interlocutor sheet that the action was brought to try a right besides the mere right to recover damages; or that the injury in respect of which the action was brought was malicious; or, in the case of actions for defamation or for libel, that the action was brought for the vindication of character, and was in his opinion fit to be tried in the Court of Session.”
On 21st January 1914 Mrs Rose O'Neill or Giffen, widow, Glasgow, brought an action against Michael D. Dawson, Scotch whisky merchant, Glasgow, for £250 damages for slander alleged to have been contained in a letter written by the defender to the pursuer in reply to three letters written by her to him.
On 15th April 1914 Dawson brought an action against Mrs Giffen for £250 damages for slander alleged to be contained in the letters written by her to him.
An issue and counter issue in the first action and an issue in the second action having been allowed, the actions were tried together on 21st and 22nd July 1915 before the Lord Justice-Clerk and a jury, when the jury found for Mrs Giffen in the action at her instance and assessed the damages at £180, and found for Dawson in the action at his instance and assessed the damages at one farthing.
On 2nd November 1915 counsel for Dawson moved the Lord Justice-Clerk to certify, in terms of section 40 of the Court of Session Act 1868, that the action at his instance was brought to try a right besides the mere right to recover damages, being an action for the vindication of character, and cited the case of Craig v. Jex-Blake, 1871, 9 Macph. 973.
The motion was opposed by counsel for Mrs Giffen, who argued that the letters were private and had been given publicity by Dawson himself after Mrs Giffen's action had been raised. Accordingly there had been no proper publication of the slander, and in the circumstances the action could not properly be described as an action for vindication of character— Williamson v. M'Cann, 1908, 16 S.L.T. 518.
The
Counsel for Mrs Giffen objected to the motion, and argued that the granting of the certificate was not final on the question of expenses. It did not preclude consideration of the question by the Court. The certificate was merely the warrant which entitled the Court to consider the question— Winn v. Quillan, 1899, 2 F. 322, per Lord Young at 325, 37 S.L.R. 234, at 235. The decisions dealt with ordinary actions. They did not apply to the present case, which was that of a counter action. Even if the counter action were a fit one to raise in the Court of Session, no extra expense had been incurred by it. In any event the present case was one where it would be appropriate to modify the expenses if the Court were to allow them.
The Court, which consisted of the Lord Justice-Clerk, Lord Dundas, Lord Salvesen, and Lord Guthrie, without delivering opinions, pronounced an interlocutor applying the verdict and finding Dawson entitled to expenses.
Counsel for Dawson— Horne, K.C.— W. J. Robertson. Agents— Thomas & William Liddle, W.S.
Counsel for Mrs Giffen— George Watt, K.C.— King Murray. Agent— C. F. M. Maclachlan, W.S.
