Scottish Court of Session Decisions

For a number of years prior to 3rd October 1892 Owen Milne was superintendent of the Bute Certified Industrial School, Rothesay. On that date he was dismissed from his post by a majority of the directors in consequence of certain charges which had been made against him. A report of the directors' meeting was published in the local papers.

On 7th December a letter from Milne was published in the Rothesay Express, in which he denied the truth of the charges, and complained that he had been given no opportunity to rebut them. The letter contained the following passage about Bailie Walker, one of the directors—“I notice from the newspapers that Bailie Walker was profuse in his attacks upon me. He admitted that his relations towards me were strained, because, as he alleges, of some old complaint which he made against me, which turned out to be groundless. I doubt not his attitude towards me was strained, or rather hostile, but it was for a very different reason. Although a director, he has been a contractor for the supply of groceries to the school. At the commencement of his present contract I detected that he was trying to send a different brand of coffee from what was contracted for, and I believe a cheaper brand, and I had to call upon him to take it back and insist that he adhere to his contract. He did so with a bad grace, and probably this accounts for the animus which he now displays towards me.” The letter also contained attacks on other residents in Rothesay.

On 10th December a letter from Bailie Walker containing the following passage was published in The Buteman and Advertiser for the Western Isles, of which paper William Archibald Wilson was the publisher—“When Mr Milne rushed into print a few weeks since with statements which on the very face of them bore the impress of apparent untruths, many in the community thought that he would have been advised in his own interest to write no more in the same vicious strain of vituperation, but if he did get such advice he has not benefited by it, as again your midweekly contemporary contains two columns of the most extraordinary composition which perhaps has ever appeared in any newspaper. Every sentence of this contribution mirrors with startling significance the man ‘Milne.’ Meant to be an exposure of a number of Rothesay gentlemen, every line exposes the true nature of the man who wrote it. Perhaps none will feel the sting of the letter so much as those whom he so gushingly thanks in the same breath as he levels his vile statements against so many of our prominent townsmen. Perhaps the best way to deal with a person guilty of writing such letters would be to treat him with silent contempt, more especially as there is not an individual named by him, whether directors of the school or shopkeepers who had occasion to expose his methods, who cannot well afford to adopt this course. But silence is sometimes misinterpreted, and if I am able to show that the statement made as regards myself is a consummate lie, the other statements in ‘Milne's’ letters may be put down in the same category. I hereby charge this man with a deliberate and wilful untruth, contained in what he says with reference to my supplying the school with goods. He says that at the commencement of the contract he detected me in supplying a cheaper brand of coffee. This is a deliberate lie. Immediately on getting the contract I ordered into stock the brand of coffee which was in the schedule. I have the invoice before me which from its date proves this. Several months after I got the contract another order came down for one dozen bottles of coffee. In my absence my shopman executed the order, and in doing so found he was short of the brand by either two or three bottles. He made up the dozen with another brand, which, instead of being cheaper, actually cost more than the scheduled brand, and if any of ‘Milne's friends’ call upon me I will show them convincing proof of this. Mr Milne says he called upon me to take back the coffee and adhere to my contract. This is another deliberate falsehood. When my shopman told me what he had done, I said he should have sent the nine or ten bottles until we got more into stock, which I got the following day, when I sent up the odd bottles and got the others back. What a flimsy story to construct such a superstructure of untruths on! I think I have been sufficiently specific in my reply, and if Mr Milne considers it strong enough to enable him to bring me before that tribunal which he threatened to all and sundry, but which no one fears more than he, I will be delighted, as it will give me an opportunity of proving not only what I have said, but much more that will not be comfortable for him.”

On account of the statements made in this letter Milne raised an action of damages for slander against Walker and Wilson.

The defenders admitted the writing and publishing.

They pleaded, inter alia—“(1) The statements of the pursuer are irrelevant. (2) Privilege. (3) Veritas. (4) The said letter being a fair reply to the attacks made by the pursuer in the public prints upon the writer thereof, the pursuer is barred from claiming damages in respect thereof.”

On 18th July the Lord Ordinary ( Kincairney) approved of issue for the trial of the cause against both defenders, in these terms—(1) Against Walker—“Whether the said statement is in whole or in part of and concerning the pursuer, and falsely and calumniously represents that the pursuer has no regard for truth and is a liar, or makes similar false and calumnious representations of and concerning the pursuer, to the loss, injury, and damage of the pursuer?”

The following counter-issue for the defender was disallowed—“Whether pursuer's statement in his letter published in the Rothesay Express newspaper of 7th December 1892, that he had detected the

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defender Walker at the commencement of his contract for the supply of groceries to the Bute Certified Industrial School at Rothesay, trying to send a different and cheaper brand of coffee than what he had contracted to supply, was a lie?”

“ Opinion.—The pursuer Milne was governor of the Bute Certified Industrial School at Rothesay, and the defender Walker, a grocer in Rothesay, was a director of that school.

On 2nd December 1892 Milne published in the local newspaper a charge against Walker, which may bear the meaning that Walker had dishonestly attempted to palm off on the school cheaper goods than those he had contracted to furnish.

On 10th December Walker published a letter in which he, inter alia, asserted that that statement was a deliberate lie, and made other statements which the pursuer Milne innuendoes as meaning that he, Milne, was a person who had no regard for truth, and a liar.

On 7th February Milne raised this action of damages against Walker and against Wilson, the publisher.

On 9th March Walker replied by an action of damages founded on Milne's letter of 2nd December.

The record was closed in both actions on 16th May, but in consequence of amendments having been made on the record in this action, Walker's action has got the start of it, and an issue has been adjusted in it putting the question whether Milne had falsely and calumniously averred that Walker had dishonestly attempted to supply the school with the inferior goods averred, and a counter-issue of veritas putting the question whether Walker had in fact acted in the dishonest manner asserted.

The first question arising in the present case is, whether the pursuer is entitled to innuendo the portion of Walker's letter of 10th December, quoted in the first schedule, as representing that the pursuer Milne is a person who has no regard for truth and is a liar. I am of opinion that the innuendo is legitimate.

The letter as I read it asserts that Milne's statements about Walker were consummate and deliberate lies. If that had been all which the letter said, it would not, in my opinion, have warranted the innuendo. But then the letter further says that Milne had made ‘vile statements’ against many prominent townsmen. What these vile statements were I do not know, and then he says that if the statement about himself were shown to be a lie, the other statements might be put down in the same category. That apparently means that these vile statements were deliberate lies. Further, he says that every sentence of Milne's letter ‘mirrors with startling significance the man Milne.’ This language is figurative, but it is not extravagant to represent it as meaning that these vile statements which were consummate and deliberate lies were characteristic of Milne, and what is that but asserting that Milne had no regard for truth and was a liar? I therefore consider the innuendo admissible.

To publish of a man in the newspapers that he has no regard for truth and is a liar is certainly prima facie actionable.

But it is said that this part of the letter complained of is a fair reply to Milne's letter charging Walker with dishonestly furnishing inferior goods, and that therefore on the authority of Gray v. The Society for the Prevention of Cruelty to Animals, July 18, 1890, 17 R. 1185, it would not warrant any action. I understand the law on that subject to be that publications in answer to a public attack, meeting that attack and vindicating the character of the person attacked, are not actionable, but I also understand that this privilege does not extend to charges unconnected with that reply or vindication. If, for example, A should charge B with theft, a denial by B of the charge would not warrant an action of damages by A, however vigorous or gross the language might be in which B's denial was couched. But if B should go on to charge A with theft, that would be actionable, and would not be protected or privileged to any extent on account of A's previous attack.

In this case Walker was entitled to deny Milne's charge, and to do so in whatever language he might think most becoming. But when he went on to charge Milne with having told other lies, it appears to me that he went beyond the bounds of fair reply and retort, and therefore out of the bounds of privilege. My opinion therefore is that the case of Gray does not apply, and that the pursuer is entitled to make the present demand.

And because I think that Walker's charge goes beyond the bounds of fair retort and of privilege, I think that the pursuer is not bound to put malice in his issue. But I do not express any opinion on the question whether ultimately he may be held bound to prove malice.

I think that the defenders' first counter-issue must be disallowed as not coming up to the pursuer's issue. I do not affirm that an issue of veritas must in all cases echo the innuendo or come up exactly to the pursuer's issue. But it must, I think, assert the truth of that part of the accusation complained of which is slanderous and actionable— Bertram v. Pace, March 7, 1885, 12 R. 798. …

No separate argument was submitted for the defender Wilson, the publisher, and I understood it to be conceded that the second issue must be substantially the same as the first.”

The defenders reclaimed, and argued—With reference to the 1st and 2nd issues, the letter complained of would not bear the innuendo sought to be put upon it. The pursuer's character was not assailed. While his statements were called lies, he was not called a liar. To reply to a slanderous attack by calling your calumniator a liar had been held not actionable— Watson v. Duncan, February 4, 1890, 17 R. 404. There was nothing in the letter amounting to the assertion that the pursuer

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was a habitual liar. It was only a somewhat vehement denial of the libellous statement which the pursuer had sent to the papers about the defender Walker, and was a fair retort to the pursuer's attack. It was therefore not actionable— Gray v. Society for the Prevention of Cruelty to Animals, July 18, 1890, 17 R. 1185. The counter-issue should have been allowed. The defenders were willing to insert “deliberate” in their counter-issue, but they were not ready, nor could they fairly be asked, to take upon themselves the burden of proving that the statements which the pursuer had made in his letter about other people were lies, or that the pursuer was an habitual liar. All that could be required was that the counter-issue should fairly meet the substance of the pursuer's charge, and the proposed counterissue satisfied this condition— Carmichael v. Cowan, December 19, 1862, 1 Macph. 204; Torrance v. Weddell, December 12, 1868, 7 Macph. 243; M'Iver v. M'Neill, June 28, 1873, 11 Macph. 777; M'Kellar v. Duke of Sutherland, January 14, 1859, 21 D. 222; Hamilton v. Hope, 1822, 4 Mor. 222.

Argued for the pursuer—The letter would bear the innuendo put upon it. It went beyond the limits of a fair reply to the pursuer's letter. If a reply was turned into a weapon of attack it might be made the basis of an action of slander—Odgers, p. 232; Gray's case, per Lord Shand, 17 R. 1198. The counter-issue must meet the pursuer's innuendo. The counter-issue disallowed did not, and had been rightly refused.

At advising—