Scottish Court of Session Decisions

On 11th April 1907 Alexander Goodall, wine and spirit merchant, Glasgow, brought an action against Andrew Forbes, J.P., Alexander Sinclair, J.P., John Battersby, J.P., J. Paton Maclay, J.P., all of Glasgow, and Robert Kyle, writer, 45 West Nile Street, Glasgow, in which he sought to have the defenders ordained, “conjunctly and severally, or otherwise severally, or according as their several liabilities shall be determined,” to make payment of £3000 as damages for slander.

The following narrative is taken from the opinion ( infra) of the Lord Ordinary (Salvesen) “This is an action of damages for slander of a somewhat unusual kind. The pursuer is the tenant of premises at 68 M'Alpine Street, Glasgow, in which he carried on business under a public-house licence from May 1603 to May 1907. He paid £1000 for the business, and expended £3000 in improving the shop. While carrying on the business the pursuer was also

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employed as traveller by a firm of distillers in Fife.

The pursuer in due course presented an application for the renewal of his licence to the Licensing Court held on 9th April 1907. Before the Court met there was served upon him a note of objections to the renewal of his licence, signed by Mr Robert Kyle, a writer in Glasgow. It bore to be on behalf of certain objectors named who were occupiers or owners of property in the neighbourhood of the pursuer's premises. The objectors asked the Court to refuse a renewal of the pursuer's certificate, for the following among other reasons—‘The applicant is not a fit and proper person to hold a public-house licence;’ ‘the present holder is not conducting the business in a satisfactory manner, in respect that dissolute men and women of loose habits and easy virtue are allowed to frequent the premises.’ A copy of the note of objections was lodged with the clerk to the Licensing Court.

The pursuer appeared at the Licensing Court on 9th April, when Mr Kyle consented to the Magistrates granting his application for renewal under reservation of his right to appeal against their decision to the Licensing Appeal Court.

On 19th April Mr Kyle lodged, in the names of the original objectors, a note of appeal to the Licensing Appeal Court against the decision granting a renewal of the pursuer's licence, and asking the Court to refuse the renewal. On 7th May—the date of the meeting of the Appeal Court—the pursuer attended with his agent, when the appeal lodged by Mr Kyle was called. Mr Kyle addressed the Court in support of the appeal, and repeated the statements contained in the objections. The hearing of the appeal was continued till the following day, when the appeal was sustained by a majority and the renewal of the pursuer's licence refused.

It is admitted that certain of the parties for whom Mr Kyle professed to act were entitled to lodge objections to the renewal of the pursuer's licence; and had the pursuer's case been directed against them no action could have been founded on the statements made in the note and repeated before the Appeal Court, except on the footing that they were made maliciously. The pursuer's case, however, is that the objections were not really made by these parties, but by the defenders, who were office-bearers or prominent members of an association in Glasgow known as the Citizens' Vigilance Association, in pursuance of a systematic attack which they were conducting against members of the licensed trade. Mr Kyle was the salaried law agent of the Association, and although it is admitted that he obtained a mandate in his favour from certain persons, who were owners or occupiers of property in the neighbourhood, authorising him to sign and lodge objections to the granting of a renewal of the pursuer's licence, it is averred that none of these parties knew that any statement was being put forward on their behalf which contained any reflections on the pursuer's personal character or his method of conducting his business. It is said that on obtaining this mandate the defenders acted entirely on their own initiative, and never at any stage of the proceedings consulted with the nominal objectors; that the latter never knew what objections had been lodged in their names, and gave no authority for an appeal being presented to the Licensing Appeal Court. In short, the case is that the real parties who initiated and conducted the proceedings against the pursuer were the defenders, and that they used the names of the parties for whom they professed to act merely as a cloak under which they might pursue their policy of endeavouring to reduce the number of licensed premises. As none of the defenders were owners or occupiers of property in the district, it was contended that they had no privilege in making the statements complained of.”

The following averments and answers, inter alia, appeared on record—“( Cond. 4) The statements quoted with regard to the pursuer were false, calumnious, and malicious, and were made without probable cause, and contained most serious charges against the pursuer's character and reputation, and against his conduct as a licence—holder. He was very greatly injured in his feelings by such charges being made against him, and was wholly at a loss to account for their origin. The statements in answer are denied. ( Answer 4 for Andrew Forbes, Alexander Sinclair junior, and John Battersby)—These defenders did not authorise or lodge the said objections. ( Answer 4 for Joseph Paton Maclay)—Admitted that the said statements contained a charge against the pursuer in respect of the manner in which he was conducting his business, as set forth in the said objections. This defender believes that the said statements were true. Quoad ultra denied. ( Answer 4 for Robert Kyle)—Admitted that the said statements contained a charge against the pursuer in respect of the manner in which he was conducting his business, as set forth in said objections, and explained, under reference to Answer 11 for this defender, that the said statements were true. [Explained and averred that during the year immediately prior to the lodging of said note of objections in April 1907, dissolute men and women of loose habits who were living in the farmed—out houses in the tenement in which the pursuer's premises were situated, and in the back tenement immediately behind the pursuer's licensed premises, and in other adjoining tenements, were allowed to and did frequent the said public-house, and that during the months of January, February, March, and April 1907, prior to the lodging of said note of objections, and during the four months immediately preceding, and particularly on Saturdays and Mondays of each week during the said period, many of the said women who lived by prostitution and the men who consorted with them were allowed to and did habitually frequent the pursuer's said public-house, and were served with drink

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there. The said women were in the habit of accosting men both inside the pursuer's said premises and on the street immediately opposite the premises. This happened to Samuel Walker, West George Street, Glasgow, and to other men whose names and addresses are not known to this defender. The said women, or most of them, lived under assumed names, and were known to their associates and in the district only by nick-names or their Christian names. Since the refusal of the pursuer's licence on 8th May 1908, many of them have disappeared or have left the district, and cannot now be traced. The character of the said women and of their male associates, and the frequenting the pursuer's public-house by them, as above stated, were well known to the pursuer.] Quoad ultra denied.” (The words within square brackets were added on amendment in the Inner House.)—“… (Cond. 8) Immediately prior to the meeting of the Licensing Court and Licensing Appeal Court of Glasgow in April and May 1907, the defenders were members of the said Citizens' Vigilance Association, and were also members of the Licensing Laws Executive Committee of said association, and of a sub-committee of said association, or of one or other of said committees. The said association, and the said committees and the defenders as members of said association, were opposed to the renewal of pursuer's licence, and in stating the objections complained of the defender Kyle was representing himself and the other defenders; and he put forward said objections on their behalf, acting under their employment and on their instructions and with their full knowledge and consent. The said Robert Kyle was at the time the salaried law agent of the said association. The said Andrew Forbes was president; the said Alexander Sinclair junior was honorary secretary; the said John Batters by was paid organising secretary, and a member of the Licensing Appeal Court. The said J. P. Maclay had been the first president, and was one of the executive commit tee of and the principal subscriber to the association, and he took a prominent part in formulating the said false and slanderous statements, and presenting the same in the Licensing Court and Licensing Appeal Court. The said Robert Kyle, with the knowledge and approval of the other defenders, obtained by means of emissaries of the said association a pretended mandate in his favour, professing to authorise him to sign and lodge on behalf of the nominal objectors objections to the granting of a renewal of pursuer's licence. Some of the signatories to the said mandate had no qualification under the statute to object to pursuer's licence, and in the case of at least one of them, the said Sarah Cairnduff, her signature was adhibited by one of the emissaries of the said association. None of the parties whose names appeared on the said mandate knew that any statement was being put forward on their behalf which contained any reflection on the pursuer's personal character or his method of conducting his business. In point of fact, the majority of said partie had no knowledge whatever with regard to the pursuer. None of the said nominal objectors had any definite idea as to what was intended to follow on the mandate. Having obtained the said mandate, the said Robert Kyle and the other defenders thereafter acted entirely on their own initiative, and never at any stage of the subsequent proceedings consulted with the nominal objectors. The whole expenses of and connected with the opposition to pursuer's licence were defrayed from the funds of the said Vigilance Association. The said Robert Kyle, authorised and instructed by the other defenders, and acting in concert with them, attended at the said Licensing Court and pretended to the members of the Court that he represented the said nominal objectors, although he and the other defenders well knew that the real objectors were the defenders. The decision of the said Licensing Court to grant a renewal of the pursuer's licence was not communicated by the said Robert Kyle, or by any of the other defenders, to the nominal objectors, who remained in entire ignorance of the same; but notwithstanding this the defenders, immediately on said decision being pronounced, resolved, without the slightest authority from the persons whose names they were using, to lodge the said appeal to the Licensing Appeal Court, which they lodged and presented accordingly in their own interests.… ( Answer 11 for Robert Kyle)—Admitted that the statements contained in said objections were made concerning the pursuer, and represent that the pursuer had failed to conduct his business in a satisfactory manner, in respect that he allowed dissolute men and loose women to frequent his premises. Quoad ultra denied. Explained that the pursuer was at the date of his application for renewal of said licence employed as a commercial traveller for a firm of distillers, and that as his time and attention were occupied in the performance of his duties as said traveller he was unable to give proper attention to the said public-house business, and was in that respect in the opinion of the objectors not a fit and proper person to hold a public-house licence. Said objections did not represent that the pursuer was a person of bad character. The pursuer obtained a renewal of his licence at the Licensing Court for the City and Royal Burgh of Glasgow, held in or about April 1908.”

The defenders pleaded, inter alia—“1) The conclusions of the summons are incompetent, in respect they conclude against the defenders for a lump sum as damages in respect of separate and distinct wrongs.”

[This plea was added on amendment in the Inner House.]

The defender Kyle also pleaded—“Veritas.”

The pursuer proposed certain issues and the defenders a counter-issue.

On 27th June 1908 the Lord Ordinary ( Salvesen) approved of three of the pursuer's issues as proposed, with amendment, and disallowed the counter-issue.

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Opinion.—“… [ After the narrative ut supra] … The first question I have to decide is whether the statements complained of are defamatory. The pursuer proposes an issue which innuendoes the statement that ‘the applicant is not a fit and proper person to hold a public-house licence,’ as meaning that the pursuer was a person of such bad character that he was unfit to hold a public-house licence. In my opinion the statement is not reasonably capable of being so construed. Unfitness to hold a public-house licence may be due to various causes, and does not necessarily imply any imputation on character. On the other hand, that such a statement may be injurious to a person who is already conducting a licensed business is, I think, plain, and still more so to say of such a person that he conducts his business in an unsatisfactory manner in respect that dissolute men and women of loose habits and easy virtue are allowed to frequent the premises. The very object of the objectors in making these statements was to induce the Appeal Court to refuse the renewal of the licence; and it is vain for the defenders to contend that the statements are not capable of a defamatory meaning. It is sufficient, I think, to make the statements actionable, if they were false, that they were calculated to injure the pursuer's business, and there can be no better proof that injury resulted than that the licence was withdrawn as the direct result, according to the pursuer, of these slanders.

The next question is whether the statements were privileged, and on this head I must in the meantime assume the truth of the pursuer's averments. If the objections were really, as he says, the objections of persons who had no title to lodge objections or to appear at the Court at all, then I think there was no privilege; and the mere fact that they had induced certain persons to give them a general mandate to lodge objections in their name would not necessarily protect them. Much would depend on the terms of the mandate, which is not properly before me, and on the authority which was thereby or otherwise conferred upon them by the persons truly interested. Certainly as regards the statements made in the note of appeal and at the Appeal Court, if it be true that the appeal was taken without the knowledge or consent of any of the nominal objectors the defenders cannot successfully plead privilege; and of course the statements there made are really those that involve the serious question in the case.

A distinction was attempted to be drawn between Mr Kyle and the other defenders, because the pursuer avers that Kyle was acting on behalf of the other defenders and on their instructions; and a law agent who makes statements in judicial or quasi judicial proceedings, on behalf of third parties, is undoubtedly in a privileged position. At the same time it was said that Mr Kyle was an official of the Association, and was thus acting not merely as a law agent, but on his own behalf; and if this be so, no privilege attaches to his actings. It is interesting in this connection to note that the defenders deny that Mr Kyle acted on their behalf. If this be the case, and he did not act on behalf of the objectors, he would have no privilege at all qua law agent; and I think it is better that this question should be kept open so that the Judge who presides at the trial may direct the jury in accordance with the evidence.

The issues which I accordingly propose to allow are the second, fourth, and sixth issues (v. infra). But, at the request of the pursuer, I shall allow him to insert in each of these issues the statement as to his not being a fit and proper person to hold a public-house licence. As the two statements separately, and at all events together, seem to me to be a clear slander of the pursuer's business as a trader, I think it is unnecessary that they should be innuendoed.

“The defenders propose the following counter issue:—‘Whether the pursuer, at and prior to April 1907, failed to conduct his public-house business at 68 M'Alpine Street, Glasgow, in a satisfactory manner, in respect that dissolute men and loose women were allowed to frequent said premises.’ This counter issue precisely meets at least a substantial part of the pursuer's issues; but it is open to the objection that there is no specification upon record of any facts upon which it is based. If the slanderous statements were made in good faith the defenders ought to know the grounds upon which they were made, and to give the pursuer such notice as to enable him to meet the charges made against him. They are really pursuers of this proposed counter issue, and, as it is absolutely unsupported by specific averments, I have no option but to disallow it.”

The issues allowed were—“(1) Whether in or about the month of April 1907 the defenders, or one or other, and which of them, wrote or caused to be written and sent to the pursuer, and lodged with the Clerk to the Licensing Court of the City and Royal Burgh of Glasgow, objections to the renewal of a public-house licence held by the pursuer for premises at 68 M'Alpine Street, Glasgow, in the following terms, namely, ‘The applicant is not a fit and proper person to hold a public-house licence,’ and

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‘the present holder is not conducting the business in a satisfactory manner, in respect that dissolute men and women of loose habits and easy virtue are allowed to frequent the premises’? Whether the statements in said objections, or part thereof, were of and concerning the pursuer, and were false and calumnious, to the pursuer's loss, injury, and damage? (2) Whether at the Licensing Court of the City and Royal Burgh of Glasgow, held on or about 9th April 1907, the defenders, or one or other, and which of them, stated or caused to be stated objections to the renewal of a public-house licence held by the pursuer for premises at 68 M'Alpine Street, Glasgow, in the following terms, namely, ‘The applicant is not a fit and proper person to hold a public-house licence,’ and ‘the present holder is not conducting the business in a satisfactory manner, in respect that dissolute men and women of loose habits and easy virtue are allowed to frequent the premises’? Whether the statements in said objections, or part thereof, were of and concerning the pursuer, and were false and calumnious, to the pursuer's loss, injury, and damage? (3) Whether at the Court of Appeal from the Licensing Court of the City and Royal Burgh of Glasgow, held on or about the 7th and 8th days of May 1007, the defenders, or one or other, and which of them, stated, or caused to be stated, objections to the renewal of a public-house licence held by the pursuer for premises at 68 M'Alpine Street, Glasgow, in the following terms, namely, ‘The applicant is not a fit and proper person to hold a public-house licence,’ and ‘the present holder is not conducting the business in a satisfactory manner, in respect that dissolute men and women of loose habits and easy virtue are allowed to frequent the premises’? Whether the statements in said objections, or part thereof, were of and concerning the pursuer, and were false and calumnious, to the pursuer's loss, injury, and damage? Damages laid at £3000.”

The defenders reclaimed, and argued on the record as amended—(1) The action as laid was incompetent in respect that it concluded for a lump sum against different defenders in respect of separate wrongs— Taylor v. M'Dougall & Sons, July 15, 1885, 12 R. 1301, 22 S.L.R. 869; Barr v. Neilsons, March 20, 1868, 6 Macph. 651, 5 S.L.R. 391; Hook v. M'Callum, February 25, 1905, 7 F. 528, 42 S.L.R. 399; Flemings v. Gemmill, 1908 S.C. 340, 45 S.L.R. 281; Ellerman Lines, Limited v. Clyde Navigation Trustees, 1909 S.C. 690, 46 S.L.R. 472. The respondent's contention that this was a joint slander was not supported by the averments on record, for no case of combined action was averred. Neither the record nor the issues disclosed such a case, which was now put forward for the first time to meet the plea to competency. In raking these appeals Kyle was acting for different parties—he was their “salaried law agent”—that was not combination. The form of issue negatived any idea of conspiracy or combination, for it put to the jury “whether the defenders, or one or other, and which of them,” made the statements complained of. (2) The record as amended contained averments sufficiently specific to support the plea of veritas and the counter issue— Mason v. Tait, July 10, 1851, 13 D. 1347; Carmichael v. Cowan, December 19, 1862, 1 Macph. 204.

Argued for respondent—(1) The action was competently laid, for the slander complained of was jointly invented and uttered. In making the statements in question at the Appeal Court, Kyle was acting as the reclaimers' agent—he was their mouthpiece. [ Counsel for respondent stated that he abandoned the first two issues and asked merely for the third, viz., that relating to the Appeal Court.] (2) The Lord Ordinary had rightly refused the counter issue. The reclaimers' averments were not sufficiently specific to support it, or to enable the respondent to procure evidence to rebut it. The counter issue ought therefore to be disallowed— M'Neill v. Borison, July 15, 1847, 10 D. 15, at p. 32; M'Bostie v. Ironside, November 14, 1849, 12 D. 74, at p. 75 (foot); Hunter v. Macnaughton, June 5, 1894, 21 R. 850, 31 S.L.R. 713.

At advising—