Scottish Court of Session Decisions

Robert Richardson, a sheriff-officer, brought this action of damages for libel against John Wilson, printer and publisher of the Edinburgh Evening News. An article had appeared in several issues of that newspaper on 2d July 1879 in the following terms:—

“ Action of Damages by an Edinburgh Artist.

An action has been called in the Court of Session before Lord Craighill by John Le Conte, Glanville Place, Edinburgh, in which he sues W. S. Douglas, Greyfriars Place, for reduction of a deed of poinding, and sale following thereon, at the defender's instance, and payment of £300 in name of damages. The pursuer says that during the last forty years in which he has followed his profession he has accumulated a vast number of proofs and copies of rare old engravings, and persons in search of such works of art were wont to come to him to be supplied with such. The defender, he alleges, formed a scheme for obtaining possession of these works of art, and in pursuance of this scheme he is said to have instructed Robert Richardson, a sheriff-officer, to execute a pretended poinding and sale of the whole effects of the pursuer upon a small-debt decree for £12, 4s. 1d., dated 12th July 1876, at the instance of the defender against pursuer. The sheriff-officer

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made an inventory of the pursuer's works of art and furniture, putting an absurd valuation upon the property and slumping the articles into a few lots so as to conceal the false and fictitious nature of the valuation. The articles valued at £12, 4s. 1d. are alleged to be worth £130. A sale was made on the 23d May to the defender, and on the following morning he and a son are alleged to have forcibly invaded pursuer's dwelling-house in his absence, which they ransacked, and carried off not only the articles inventoried, but a large number of engravings and unfinished proofs not included in the inventory. The defender is alleged to have stripped pursuer's house of his whole effects, leaving him and his family destitute of a home at a late hour on a Saturday night. These proceedings, the pursuer says, were illegal, cruel, and oppressive. The poinding is averred to be inept for want of a proper inventory and specification of the articles, and ought to be reduced, and in respect of the alleged illegal actings of the defender he claims payment of £300 as reparation.”

The summons in the action alluded to had in fact been served on 20th June, and had been called in Court on 1st July 1879; and the newspaper report was admitted by the pursuer of this action, who was the Robert Richardson referred to in the article, to be correct.

He pleaded, inter alia—“(1) The defender having wrongfully and illegally printed and published the said slanderous and injurious statements before any proceedings had taken place in Court which could be made the subject of a newspaper report, he is liable in reparation.”

The defender admitted having published the article, which he stated was copied from the morning papers of the day in question. He pleaded, inter alia—“(1) The averments of the pursuer are not relevant or sufficient to support the conclusions of the summons. (2) The paragraph in question being a bona fide and correct report of the averments made in an action then called and pending in the Court of Session, the defender was entitled to publish the same, and the pursuer is not entitled to damages for the publication thereof.” The pursuer proposed this issue for the trial of the cause—“Whether on or about 2d July 1879 the defender wrongfully published in the Edinburgh Evening News an article or paragraph in the terms of the schedule hereunto annexed? and whether the statements therein set forth are of and concerning the pursuer, and falsely and calumniously represent him to be a dishonest person, and unfit to hold the office of a sheriff officer, to the loss, injury, and damage of the pursuer?—Damages laid at £500.”

The schedule contained the newspaper article as quoted above.

The Lord Ordinary ( Craighill) pronounced an interlocutor repelling the first and second pleas-inlaw for defender, and approving of the above issue for the trial of the cause. He added this note:—

“ Note.—There is involved in the granting of the issue which in this case has been allowed as important a question as has in recent times been brought before the Court. The pursuer sues for reparation on account of injury said to result from the publication in the defender's newspaper of the statements in a summons which had been called. These statements, the pursuer says, were not only untrue but libellous, and the defender is sued as the publisher of a libel. The defender contends that as the summons had been called, its contents were the property of the world, and the publication of these can no more be the subject of an action of damages for libel than a report of proceedings in open Court. The article complained of, it is right to mention, is not said to be in any way unfair as a representation of the statements in the summons, and consequently issue is at once joined on the question whether, using the words of the defender's second plea, the article in question being a ‘ bona fide and correct report of the averments made in an action then called and pending in the Court of Session, the defender was entitled to publish the same, and the pursuer is not entitled to damages for the publication thereof.’ This, the defender argued, should be treated not as a private but as a public question. The public, however, the Lord Ordinary thinks, have little to do with it, unless in so far as every individual is interested in the prevention of that which may be an injury to some and cannot be a benefit to any. Judicial proceedings, properly so called, are accessible to all, for the courts of justice in this country are open; and stating the case generally, what may be seen and heard may be published. But it does not follow from this that every step of process in a cause, whether it be taken or not taken in Court, from the calling of the summons till final judgment has been given, is an occasion on which everything which can be discovered by an examination of the process may be published to the world. Were such a rule to be recognised, the right of the world to be informed of the contents of writs or productions in a suit would outstrip in point of time the right of the Court. The public, in the opinion of the Lord Ordinary, have no right and have no interest to know more than can be learned by attendance in Court. Not that some things read short, or which have only been referred to in the arguments of counsel, or in observations made by the judge, may not sometimes be fully reported. The less or the more is a question of degree; but the public cannot demand to know, and newspaper reporters who cater for the public cannot insist on knowing, what was not intended to be published merely because a writ or a production has been made a step in judicial procedure. The right and the interest of the public are concerned not with the statements which one party in a cause may make against his adversary, but with the proceedings in open Court, by which between both justice is to be administered.

The case for the defence was argued with great ability by Mr Trayner, but the argument, as the Lord Ordinary thinks, did not go to the root of the matter. Everything, so far as Scots law and practice are concerned, was rested on the passage in Erskine's Institutes (b. iv. t. i. sec. 8) where it is said that ‘the summons must be called by the clerk of the process within a year after the last diet, otherwise the depending process falls. This calling of the cause in the Outer House by the clerk of the process after elapsing of the days of compearance was the first step taken in it by the pursuer. The most ancient form required this to be gone about in the presence of a judge; and though no judge has for a long time past interponed his authority to it in person, yet he is in the judgment of law

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considered as present, so that it is still to be deemed a judicial step.’ Perhaps—though not referred to on the part of the defender—a similar, though not quite the same, statement in Mr Beveridge's work on the Forms of Process, vol. i. p. 247, ought here to be cited for the information of the parties and of the Court. At what time the judge was present at the calling the Lord Ordinary has not discovered. But there is little that turns upon this point. Be it, as Erskine says, that in a sense the calling of the summons is ‘still to be deemed a judicial step'—What of it? Will it confer on the public a right to know more than this step—the calling of the summons? Of course, if, as is assumed by the defender, the publication of the contents of the summons is implied in the ‘calling,’ there may conceivably be a right to know and to make known these contents even though the reading of the writ itself is not a part of the proceeding. But there is absolutely no authority for such an assumption; all authority indeed appears to be against it.

The earliest reference in the books to what is described as the calling of a summons, so far as the Lord Ordinary is aware, is to be found in Balfour's Practicks under the head ‘of Saumand-ing,’ No. 143. What is there reported occurred in 1528, which was in the days of the ‘Session’ and nine years before the institution of the College of Justice. It is not safe to say what was the abuse for which a remedy was then provided, but whatever it was, the Lord Ordinary is inclined to think that the ‘calling of the “Saumands”’ here referred to was not the initial step which in more modern times has been so described, but was rather the calling of the cause for hearing and for judgment. This view of the matter he thinks is borne out by the relative enactments in the Act 1537, c. 44, by which the College of Justice was established. The provisions of that statute as regards procedure must import more than rules for bringing actions into Court; and on this point the regulations introduced by the Act 1672, cap. 16, section 1, are also instructive. These are quoted by Stair (Instit. iv. 2, 6), and they make it plain that the first step, which was really ‘a proceeding in Court,’ properly so called, was that which was taken when processes were ‘discussed and determined, as the parties are in readiness and do call for justice after the processes have been seen by the defender's advocates and are returned by them’—the purpose of the regulations being that ‘all processes should be discussed and determined’ according to the date of the returns, ‘which are set down and signed by the defender's advocate upon the process itself, that no parties be preferred in obtaining justice to any other who was ready and calling for it before.’ On the calling of the summons, as that expression is now employed, little of authority is to be found of very ancient date; but in more recent times there is abundance, which may be divided into what implies that the calling was not a publication of the summons, and what is, by implication at least, a prohibition or exclusion of its publication. Reference may be made to a work published in 1799 by ‘a member of the College of Justice’ on the Forms of Process, pp. 46, 56, and 343; to Bell on Deeds, v. 6, p. 45, third edition; and to Ivory's Forms of Process, p. 173. These all tell us what the calling was prior to 1820, and as described in the first of these treatises, p. 52, it was then nothing more ‘than the reading aloud at the Fore Bar the partibus and roll of the defenders' names.’ On 11th March 1820 there was passed an Act of Sederunt, several of the provisions of which are material on the present occasion. By one of these it is enacted that the summons, &c., shall immediately be entered in the list for calling, containing in appropriate columns the names of the pursuer or suspender and defender or charger, and of the counsel and agent of the pursuer or suspender, and shall not thereafter be given up by the clerk except when borrowed by the agent on his receipt, or when transmitted to some other officer of Court. By another, that the calling by the depute clerks or their assistants shall in future be performed, not viva voce as at present, but by the exhibition of the said lists, which shall be subscribed with the proper office-mark, and hung up for public inspection in the Outer House on each sederunt-day immediately preceding a day for the enrolment of causes in the Outer House rolls, and shall so remain hung up from ten o'clock in the morning till two o'clock in the afternoon. And by a third, that in the afternoon of every such day appearance may be entered for defenders or chargers, for which purpose their agents shall attend at the clerk's office between the hours of six and seven, when the appearance shall be marked by the clerk upon the partibus in common form, and the agent shall be entitled to borrow the process on his receipt, which shall infer an obligation to return the same to the clerk on or before the sixth day after entering appearance, under the pain of caption.

These enactments show not only that the publication of the contents of the summons is not a result involved in the calling, but, on the contrary, that this is a result which is not intended to occur, and which indeed cannot occur if the prescribed regulations are observed.

The Lord Ordinary will only add that the words inscribed on the partibus, long used and still in use, when appearance is entered for a defender are themselves almost conclusive evidence that the publication of the contents of a summons is not a thing implied in the calling.’ Alt. To see,’ are the words used. The summons and the productions are given out to the procurator for the defender to be seen, and if there is any meaning in the expression, this at least is implied, that the summons and productions are not to be considered as already published.

Authorities in English law were cited to the Lord Ordinary on the part of the defender, the purpose for which these were adduced being to show that reports even of ex parte cases may be published.

This, even from these authorities, appears to be a right which may be subjected to restriction, but it is sufficient to say that in the opinion of the Lord Ordinary they do not touch the present controversy. It may be right or it may be wrong for ex parte cases to be heard in open Court, but if they are so heard, it may follow that in most cases the ordinary rule as to the publishing of judicial proceedings in open Court should be recognised. The distinction between such cases and the present is, that in the former nothing is published but what occurs in Court, whereas in the latter nothing occurs in Court, and what has

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been published is not a report of judicial procedure, but the publication of the contents of a writ the contents of which were at the time even unknown to the Court.

As regards the form of the issue, it may be explained that the pursuer and the defender are agreed; what has been settled by the Lord Ordinary was the ultimate form proposed by the pursuer, which, on the assumption that there is to be an issue, was accepted by the defender.

The Lord Ordinary considers it to be appropriate for the trial of the cause.”

The defender reclaimed, and argued—The tendency of modern decisions was towards freedom of publication. As a general rule, newspapers might report (if they did so correctly) any case pending in the Court. This was a “pending case,” for the calling of the summons was a “step of judicial procedure;” if not, what point was to be fixed, short of the final judgment in a case, at which the proceedings might begin to be reported? In England reports of cases ex parte were published.

Authorities (on the general rule)— Wason v. Walter, Nov. 25, 1868, 4 L.R. (Q.B.) 73 (Cockburn, C.-J., p. 93); Folkard on Libel, 193; Addison on Torts, pp. 791–2, and cases there; Lewis v. Levy, 27 L.J. (Q.B.) 282 (Lord Campbell, p. 289); Curry v. Walter, 1 B. and P. 525. (On the effect of calling the summons)— Aitken v. Dick, July 7, 1863, 1 Macph. 1038; Ersk. Inst. iv. 1, 8; Shand's Practice, vol. i. p. 247; Beveridge's Forms of Process, i. 247; Russell's Forms, i. 36.

Replied for the respondent—The statements in a summons must be regarded very differently from those made for a party in open Court. Calling a summons did not make it public property. The Act of Sederunt forbade the clerk to give up or exhibit a summons at this stage to anyone save the agents. If the public might inspect the summons, why should they not also have access to the productions also? The defender here was really giving unlawfully to the public what they could not lawfully at that stage get for themselves.

Authorities—Act of Sederunt, March 11, 1820; Gilfillan v. Ure, May 18, 1824, 3 S. 21; Shand's Practice, i. 40; Borthwick on Libel, 211, and case of Stewart v. Allan and Mackay there, Dec. 31, 1818, not reported.