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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nelson v. Black and Morrison [1865] ScotLR 1_83 (21 December 1865)
URL: http://www.bailii.org/scot/cases/ScotCS/1865/01SLR0083.html
Cite as: [1865] SLR 1_83, [1865] ScotLR 1_83

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SCOTTISH_SLR_Court_of_Session

Page: 83↓

Court of Session Inner House First Division.

Thursday, Dec. 21. 1865.

1 SLR 83

Nelson

v.

Black and Morrison.

Subject_1Reparation
Subject_2Public Officer.

Facts:

(1) Held that a pursuer of an action of damages against a procurator-fiscal for slander contained in a petition to a Sheriff, must take an issue of malice and want of probable cause. (2) Issue founded upon the obtaining of a warrant to search which was said to be illegal, but which was not executed, disallowed, no damage being relevantly averred.

Headnote:

David Nelson, residing at Glenduckie, sued the defenders, who are joint Procurators-Fiscal of Fife, at Cupar, for damages (1) in respect of their having on 25th December 1864 presented a petition to the Sheriff of Fife, in which they falsely and calumniously represented the pursuer to have been participant in the crimes of conspiracy to take the life of Mr Edgar, the minister of Dunbog, and of Mr Ballingall, farmer, Dunbog, and of writing and sending certain threatening letters to them; and (2) in respect of their having wrongously applied for and obtained from the Sheriff-Substitute of Fife a warrant written on the foresaid petition to search the pursuer's dwelling-house and repositories, which warrant they thereafter published to several parties, to the loss, injury, and damage of the pursuer. The warrant to search, although executed against other parties was not executed against the pursuer. Mr Bell of Glenduckie, one of the parties against whom it was executed, presented a suspension, and the warrant was set aside, so far as it regarded him, by the High Court of Justiciary. Other three parties—Mrs Black and her two sons—also obtained suspension. The present pursuer was proceeding to suspend the same when it was intimated to him that it had been withdrawn as against him. The defenders now admit that this withdrawal was not made till several days after the warrant had been obtained. The pursuer says he incurred considerable expense in preparing his suspension before the withdrawal had been intimated to him.

The case was before the Court upon a report by Lord Ormidale on issues. The pursuer contended that he was entitled to damages against the defenders for the slander contained in the petition, without proving that it was done maliciously and without probable cause, in respect the application was ultra vires of the defenders as fiscals; was not presented by them in the discharge of any official duty; and had been pronounced to be illegal by the Court of Justiciary in quashing the warrant. The pursuer also founded upon the opinions of the Judges of the Second Division of the Court in adjusting issues in an action of damages which had been raised by Mr Bell against the present defenders, which, he maintained, virtually decided the illegality of the defenders' whole proceedings ( Bell v. Black and Morrison, 37 Jurist, 247 and 543).

The defenders, on the other hand, insisted that the pursuer was bound to put malice and want of probable cause in issue, in respect procurators-fiscal were privileged to this extent in the discharge of their official duty. This was a proceeding of that kind. The judgments of the High Court of Justiciary and of the Second Division only decided that the warrant was bad, and that the search made in Bell's case was illegal, and rendered the fiscals liable in damages without the necessity of alleging against them malice and want of probable cause. That did not dispose of the legality of the application by the defenders. As regarded the second issue there was no damage, in respect the warrant had never been executed.

Lord Ormidale reported favourably to the pursuer's contention upon the issues.

The case was debated upon Tuesday. To-day the Court gave judgment.

 Judgment:

The Lord President delivered the leading judgment of the Court. His Lordship said—There are two issues proposed in this case. With regard to the first, the question seems to be limited to this—whether it is necessary for the pursuer to insert that the defenders' statements were made maliciously and without probable cause. This is a case of an application by the procurators-fiscal for a warrant for recovery of documents in reference to a charge of sending threatening letters, and to an alleged conspiracy to do violence to Mr Edgar and Mr Ballingall. In this application the pursuer says he was slandered, in respect he was falsely accused of having been participant in these crimes; and upon that footing seeks damages against the defenders. Procurators-fiscal have certain duties to discharge in the interests of justice, and in the ordinary discharge of such duties they are protected, unless it be proved that they acted maliciously and without probable cause. In this case it is said that it is not necessary for the pursuer to take such a burden of proof upon him, because the warrant which the defenders asked for and obtained was an illegal warrant, and being of such a kind was such as they were not entitled to ask; and so it is argued that they had no privilege in making the statements upon which they did ask it. Questions of nicety and difficulty may arise in some cases as to how far a procurator-fiscal is outwith the ordinary protection accorded by the law when he concludes a petition by asking something which he is not entitled to demand; and these questions must be determined by the nature of the illegality involved in the demand. If “to search repositories”

Page: 84↓

be something beyond all law and reason, that is one kind of illegality. If, on the other hand, it be merely illegal to search them in the way asked and granted here, that is a different kind. The one illegality touches the substance of the proceedings; the other points to some error or omission in the same, or want of caution in carrying them out. Were the illegality of the first kind the pursuer might be entitled to an issue without malice and want of probable cause; but if the illegality be of the second order I am of a different opinion. I think this case comes under the latter class. Under this application it was competent to the Sheriff to have granted a legal warrant. For example, had he limited the search to particular documents, or appointed it to be carried out under his own eye, I am not prepared to say that that would have been an illegal warrant. Now, although that has not been done, I do not think that the defenders' application was out and out and in substance contrary to law. Therefore I am of opinion that the pursuer must take upon him the burden of showing that the defenders' statements were made maliciously and without probable cause. As regards the second issue, it is laid, not upon the petition, but upon the warrant, and is proposed as a separate demand. The pursuer had some difficulty in explaining what injury had been sustained by him other than through the slander, by reason of the warrant having been taken out and kept up against him—it having never been executed against him. The only way in which the granting of the warrant was said to have entailed a separate injury upon him was that he had been put to the expense of preparing a suspension of the warrant before its withdrawal had been intimated to him. I do not think grounds have been laid for that pecuniary claim. The pursuer does not say that the taking out of the warrant was intimated to him. He came to hear of it through its having been executed against the other persons affected by it. Before incurring the expenses of preparing a suspension of it he ought to have applied to the defenders to know the meaning of it, when in all probability its withdrawal as against him would have been intimated. But there is something of a different character in this issue. It is said that the pursuer sustained injury from the publication of the warrant. This publication may give greater cogency to a claim for damages for the calumny. The calumny involved here is of a peculiar kind. It is more of the nature of a judicial slander than anything else. The pursuer will be allowed an opportunity of amending the issues in conformity with the views now expressed, and of considering how the second issue is to be framed if put separately, or whether the whole matter might not be embodied in one issue founded upon slander done maliciously and without probable cause.

The other Judges concurred, Lord Deas remarking that he did so with the qualification that as the Court held that the defenders' application was not in substance incompetent, it was not necessary to consider or determine whether the protection accorded by law to judicial statements would apply to proceedings taken by fiscals.

 Counsel:

Counsel for the Pursuer— Mr Watson and Mr M'Lean. Agent— Mr W. Miller, S.S.C.

Counsel for the Defenders—The Lord Advocate and Mr A. Moncrieff. Agents— Messrs Murray & Beith, W.S.

 1865

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URL: http://www.bailii.org/scot/cases/ScotCS/1865/01SLR0083.html