Scottish Court of Session Decisions

Captain Roy Cochrane, Edinburgh, pursuer, brought an action against Dr William Young, West Calder, Midlothian, defender, for payment of £5000 as damages for slander.

The pursuer averred, inter alia—“(Cond. 1) The pursuer when the present action was raised was the secretary of the Midlothian War Pension Committee. He is married and resides in Palmerston Place, Edinburgh. The defender is a member of the said Committee. On or about 9th November 1921 No. 2 Standing Committee of the said War Pension Committee appointed a small Sub-Committee for the purpose of considering a letter from the Ministry of Pensions with reference to the reduction for reasons of economy of the staff of the Committee. The said Sub-Committee consists of T. W. H. M'Dougal, Esq., of Raeshaw, Gorebridge, chairman of the main Committee and No 2 Standing Committee, Mrs Stuart, Borthwick Castle, Gore-bridge, and Mr Robert Hood, Burnbank Cottages, Ratho. The pursuer acted as secretary to the said Sub-Committee. The

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defender is not and never was a member of the said Sub-Committee. The statements in answer in so far as not coinciding herewith are denied, subject to the admissions that the defender is vice-chairman of the War Pensions Committee, but as such he is not ex officio a member of all Sub-Committees, and in particular that he was not a member of the foresaid Sub-Committee. Explained that Mr M'Dougal, who is chairman of the War Pensions Committee, was specially appointed as a member of the said Sub-Committee. (Cond. 2) A meeting of the said Sub-Committee was held on 18th November 1921, and a letter from Colonel Warden, the Regional Director of the Ministry of Pensions, with reference to the reduction on grounds of economy of the staff of the Committee, was submitted by the pursuer. It was subsequently decided to adjourn the meeting to enable Mr M'Dougal, the chairman, to interview the Regional Director, and to arrange for the Regional Director attending the next meeting at which the subject of the said letter would be dealt with. (Cond. 3) The next meeting of the said Sub-Committee was held on 28th November 1921 in the pursuer's room at the Local War Pension Committee's Office at 17 Atholl Crescent, Edinburgh. At the hour arranged for the meeting Mrs Stuart, Mr Hood, the Regional Director, a Mr Simpson and a Mr Rintoul (both from the Region Offices of the Ministry of Pensions), and the defender entered the pursuer's room. The defender, though not a member of the Sub-Committee, immediately announced that he had been requested by the chairman to take the chair. The defender then assumed the chair though not entitled to do so, and in the presence and hearing of the pursuer and of all those present at the said meeting proceeded to read a letter which he stated Mr M'Dougal had received from three members of the staff of the Local War Pensions Committee. The said letter was in the following terms or in terms of the like import and effect:—‘17 Atholl Crescent, Edinburgh, 25 th November 1921.—T. W. H. M'Douga), Esq., of Raesliaw, Heriot.—We, the undersigned members of staff, respectfully wish to place before you our united protest against the intolerable treatment meted out to us by Captain Cochrane, and to bring to your knowledge facts which we think should now be known to you. It is the case that Captain Cochrane's treatment to many pensioners and to members of staff is utterly obnoxious and offensive, and that he makes use of obscene and indescribably filthy language when addressing us; that his immoral conduct has now become a byeword in the office; and that we now find it impossible to continue under his control. We wish also to state that it is the case that while his daily average attendance at the office is not more than 4 1 2 hours, about half of that time is employed by him in dealing with business matters other than that pertaining to pensions. We would therefore ask that full investigations be made, and that if you consider it desirable immediate opportunity be afforded us to substantiate this protest. We have thought it advisable to forward a similar protest to the Regional Director. We speak on behalf of all the members of the staff other than two female members.— Alice M. T. Gorrie. R. Guthrie Irvine. John S. Slorach.’ The pursuer is not in possession of the said letter or of any copy thereof, and requests for a copy which he has made to the acting secretary of the Committee and to the Regional Director have both been refused. The terms of the said letter as now set forth in the condescendence are quoted from the defences in an action which the pursuer has raised against the writers of the letter. By the statement in said letter that pursuer's ‘immoral conduct has now become a byeword in the office,’ on which the defender commented, the defender intended to represent and did represent that the pursuer had been guilty of immoral relations with female members of his staff, and it was so understood by those who heard it.… (Cond. 4) The pursuer immediately protested that the said letter was a complete surprise to him, and that the statements made in it were absolutely untrue. Mr Hood said that the meeting could not consider the letter, as it had no connection with the business for which the meeting had been called. The defender, however, stated that as chairman he overruled Mr Hood's objection. At the instigation of the defender the meeting thereupon determined to proceed at once to investigate the matter by questioning the writers of the letter. It was at first proposed by the defender that this should be done outwith the presence, of the pursuer, but the pursuer protested against this course, and after discussion it was agreed to allow him to be present. The writers of the letter were then called in succession into the room and were questioned as to the statements made by them in the letter. None of the writers of the letter was able to substantiate, or did in fact substantiate, any of the statements therein.… (Cond. 5) At the conclusion of this inquiry the pursuer again protested, and referring to the charge against him of immoral conduct with female members of the staff, said that it was abominable that such a charge should be made against him. The defender then said, ‘I believe it is true.’ These words or words of the like import and effect were uttered by the defender in the presence and hearing of the pursuer and of all those present at the said meeting. By them he intended to represent and did represent that pursuer had been guilty of immoral conduct with female members of the staff.… (Cond. 8) Pursuer's relations with defender have been strained for years past, and on many occasions the defender has taken up a hostile attitude and manifested a strong animus against him. Inter alia in 1918 the pursuer, who was then also secretary of the West Calder War Pensions Committee, as the parish minister there, Dr Anderson, had interested himself in pension work and done much for war pensions and was prepared to accept nomination upon the Local Sub-Committee, wrote to the defender, who was chairman of the Committee, suggesting that

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Dr Anderson should be put on the Sub-Committee. The defender refused to agree to this, and was annoyed with pursuer for having mentioned the minister's name as (unknown to pursuer) the defender was not on good terms with the minister. Again, in the beginning of 1920, while the foresaid T. W. H. M'Dougal was vice-chairman of the Midlothian Pensions Committee, the pursuer had occasion to object to his interfering with the staff and the working of the office, and pointed out that the staff should be under his (pursuer's) authority, as had been recorded in the minutes of the Committee. Defender went to pursuer and told him that unless he gave an abject apology to Mr M'Dougal he would not only have Mr M'Dougal against him, but that he himself (the defender) would do everything in his power to make him suffer for it. The pursuer could not see his way to give such an apology, there being no occasion for it, and defender carried out his threat and has ever since been most antagonistic to pursuer. Further, without any reason the defender quarrelled with pursuer regarding the latter having paid out of the Civil Liabilities Fund a sum of £75 to a West Calder pensioner of whom the defender disapproved, and threatened to have pursuer made personally responsible for said sum although the Committee had definitely approved of the payment before it was made. Other similar instances might be given.… (Cond. 9) The allegations made by the defender by his reading of the statements contained in the said letter and commenting thereon—which statements he adopted and made as his own—and the statement made by the defender which is condescended on in article 5 hereof, are of and concerning the pursuer and are false and calumnious and represented and were intended to represent, inter alia, that the pursuer had had immoral relations with female members of the Ministry of Pensions staff at 17 Atholl Crescent, Edinburgh, and were so understood by those who heard them. The defender read the statements contained in the said letter and made the said statement to the said meeting maliciously and without any knowledge of or belief in their truth, and without making any previous inquiry in the matter, but recklessly and with a desire to injure the pursuer and gratify his ill-will towards him. The whole proceedings of the meeting were irregular and partial and were conducted by the defender with the desire to injure the pursuer. The defender was not a member of the said Sub-Committee and had no right or duty to be present at any of its meetings or to make any statements in connection with its business, and it was beyond the remit to the Sub-Committee to deliberate upon the position of the pursuer or investigate any charges made against him. The pursuer's reputation and good character have greatly suffered as a result of the defender's said statements, and the pursuer has sustained great injury to his feelings and in his business interests as secretary of the said Committee. Reparation for the said injury and loss of reputation is moderately estimated at the sum concluded for.”

The defender pleaded, inter alia—“1. The pursuer's averments are irrelevant and insufficient to support the conclusions of the summons and the action should therefore be dismissed.”

The pursuer proposed the following issue—“It being admitted that at a meeting of a Sub-Committee of No. 2 Standing Committee of the Midlothian War Pensions Committee at 17 Atholl Crescent, Edinburgh, on or about 28th November 1921, the defender read aloud, in the presence and hearing of the pursuer and of all those present at the said meeting, a letter in the terms printed in the schedule hereto appended (see supra, condescendence 3)—Whether the statements contained in the said letter and read aloud by the defender were of and concerning the pursuer, and falsely and calumniously represented that the pursuer was guilty of using obscene and indescribably filthy language towards members of the Ministry of Pensions staff at 17 Atholl Crescent aforesaid; that the pursuer had had immoral relations with female members of the said staff—to the loss, injury, and damage of the pursuer? Damages laid at £5000.”

On 26th May 1922 the Lord Ordinary ( Blackburn) pronounced this interlocutor—“… Dispenses with the adjustment of the issue: Sustains the plea of irrelevancy stated for the defender: Dismisses the action; and decerns.…”

Opinion.—“This case raises a different question from the other two cases before me at the instance of the same pursuer, and I am very clearly of opinion that it is irrelevant. The letter alleged to be slanderous and complained of was written and sent to two people, one being Colonel Warden, the Regional Director of the Ministry of Pensions, the head of the whole Department in Scotland, and the other to Mr M'Dougal, the chairman of the Midlothian War Pensions Committee, the letter to each of them being in the same terms, and requesting an inquiry into the whole matter.

There was a Sub-Committee of the Midlothian War Pensions Committee which had been appointed to consider matters rather germane to the question raised in the letter, because it had to do with the organisation of the staffs throughout the district, and a meeting of this Sub-Committee was called by Mr M'Dougal to inquire into the matters raised in the letter. He was prevented by ill-health from attending the meeting, and at his request the defender, who was vice-chairman of the District Committee, attended in his place. It is averred by the pursuer that the defender had not been expressly nominated as a member of this Sub-Committee, and that he was accordingly not entitled to attend the meeting. This averment appears to me to be quite irrelevant, as in my opinion the chairman of a public body is always entitled to nominate a vice-chairman of the body to take his place and discharge his duties when he is himself prevented from doing so. Now the letter being addressed to Mr M'Dougal as chairman of the Pensions Committee

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for the purposes of an inquiry, I think it is quite clear that the publication of the letter to the members of the Departmental Committee to enable them to inquire into the matters complained of is clearly covered by the plea of privilege. But the meeting of the Sub-Committee was also attended by the Regional Director, Colonel Warden, with two officials from the Head-quarters Office, and it is argued that the plea of privilege does not extend to the defender's disclosure of the contents of the letter to these individuals. But the Regional Director had also received a similar letter and it was his duty to make some inquiry, in which he was clearly entitled to the assistance of any members of his staff with whom he chose to consult. Now I think the facts as stated and admitted make it perfectly clear that all these people were assembled at 17 Atholl Crescent on 28th November 1921 for the purpose of considering and discussing the matters dealt with in the letter, and that it was their duty to consider and deal with the whole matter. The only ground of action against the defender is that he read this letter to the meeting. It seems to me that this was his obvious duty, and that in discharging this duty he was privileged. I further think that it would be quite irrelevant to suggest that the pursuer is entitled to prove or attempt to prove that in discharging such a duty he was acting maliciously. Accordingly I shall dismiss the action as irrelevant.”

The pursuer reclaimed, and argued—The pursuer's averments did not disclose a case of privilege. The contents of the letter were not relevant to the business of the meeting. Moreover, there were present at the meeting persons who were not members of the Sub-Committee. In any event the pursuer averred facts and circumstances from which malice could be inferred. Ingram v. Russell, (1893) 20 R. 771, 30 S.L.R. 699, was referred to.

Argued for the respondent—There was no publication of the alleged slander. The pursuer's averments disclosed that it was uttered on a privileged occasion, and facts and circumstances from which malice could be inferred were not averred.

At advising—