Scottish Court of Session Decisions

The Scottish Rights of Way and Recreation Society (Limited), along with two members of the public, brought this action of declarator of the existence of a public right-of-way for passengers on foot and horseback and for driving cattle, from a point on a public road near Braemar and, inter alia, proceeding down Glen Clova and through the lands of the defender Duncan Macpherson of Glen Doll to a point on a public road leading to Kirriemuir. The defender Mr Macpherson denied the existence of any such right-of-way through his lands. It was stated at the bar that the circumstances which had given rise to the action and its merits had provoked a large amount of popular feeling in the district interested. The pursuers had published a report in the Scotsman newspaper of the action their Society had taken and proposed to take in the matter, and besides the appearance of two letters in that paper, a member of the Society had replied to a letter on the subject which had appeared in the Standard newspaper. In these circumstances, on the pursuers moving the Lord Ordinary (Kinnear) for an order for issues, the defender asked that the case should be sent to proof before his Lordship. His Lordship appointed the issues to be tried by a jury.

“ Note.—The defender maintains that this case should be tried without a jury, on the ground to which the Court gave effect in Blair v. Macfie, viz., that the minds of the public, and particularly of that part of the public from which juries are drawn, have been prejudiced in regard to the merits of the case by discussions in the newspapers. But the only publications for which the pursuers are responsible appear to me to be of a very different character from the letters which were addressed to the newspapers by the pursuer in the case referred to. It cannot be supposed that the public mind has been so prejudiced by anything that appears in the pursuers' reports as to render a fair trial by jury impossible or improbable; and the mode of trial ought not to be affected by the letters of persons for whom the pursuers are not shewn to be answerable, or by letters addressed to a newspaper published in London. This case is distinguishable from that of Blair on another ground—because the road now in question is at a distance from Edinburgh, so that there can be no local feeling upon the subject in the district from which the jury are to be drawn.”

The defender reclaimed, and argued—This case was parallel with Blair v. Macfie, Feb. 2, 1884, 11 R. 515, in which the Court appointed the cause to be tried without a jury. The minds of that part of the public from which the jury would be likely to be drawn had been prejudiced in regard to the merits of the case by the publications and letters in the newspapers for which the pursuers were responsible. The distinction drawn by the Lord Ordinary between this case and that of Blair as to local feeling vanished when it was seen that pending the case the pursuers by publishing their Society's reports had advertised themselves as the champions of the public right.

The pursuers replied—There were only two letters written to the Scotsman, and the Standard was not a paper which could be said to be universally circulated amongst the class of persons from whom the jury would be likely to be taken. The report was a perfectly harmless one. In Blair's case there was a thick mass of correspondence, for which the pursuer was himself responsible. There was, then, nothing whatever to prejudice a jury's mind here. The Court would, moreover, be slow to interfere with the Lord Ordinary's discretion in such a matter.

At advising—