Scottish Court of Session Decisions

This was an action of damages for slander at the instance of William Primrose, club-master of the New Abbotsford Club, a working man's club in Edinburgh, against James H. Waterston, property and insurance agent, one of the Magistrates of the City of Edinburgh.

The slander complained of as averred by the pursuer, was uttered by the defender while sitting as a magistrate in the Police Court, and the defence was judicial privilege.

The pursuer averred that among the objects of the New Abbotsford Club was the supply of refreshments to the members, but denied that its main object was the supply of intoxicating liquors. He further averred as follows:—“(Cond. 4) For some time past an agitation, instigated and supported by teetotalers and other prejudiced persons, has been carried on in Edinburgh against all working men's clubs, and devices have been resorted to to discredit and suppress them. The said New Abbotsford Club is one of those clubs so attacked, although its members are not exclusively or chiefly composed of working men. The defender, who calls himself a temperance reformer, has taken a prominent part in said agitation, and has expressed strong views against the use of intoxicants and in favour of the suppression of the liquor traffic completely, whether carried on in licensed houses, in clubs, or in private houses. The supporters of this agitation, including the defender, have instigated the Edinburgh City Police to make raids on the said New Abbotsford Club, and to institute prosecutions against the officials of said club and the pursuer on charges of alleged shebeening, but in every instance, as regards this club, the charges have failed, and the accused concerned in the charges acquitted of any illegality. The pursuer believes and avers that the slander of which he complains formed a part of a deliberate design on the part of the defender to throw obloquy and discredit upon working men's clubs, and upon the pursuer as one of the officials of said New Abbotsford Club. (Cond. 5) On the 15th day of August 1901 the pursuer's son William Primrose, nine years of age, was in company with Ernest Maclagan and Harry and Brown, when Ernest Maclagan, as a boyish frolic, mounted a lorry and took a lemonade bottle and ran up Chambers Street with it.… Witnesses informed a police constable that Ernest Maclagan had taken the bottle, and this officer duly reported the abstraction of the bottle by Maclagan to the Central Police Office. (Cond. 6) It ought to have been quite well known to the police that only against Ernest Maclagan could there be a charge of theft in connection with said abstraction from said lorry of said lemonade bottle; but a charge of theft was wantonly brought against the pursuer's son and the said Ernest Maclagan. The two boys were accordingly brought before the defender at the Police Court, Edinburgh, on 16th August 1901, on a charge of having stolen a bottle of lemonade from a lorry. The pursuer's wife was present in Court. The defender was quite well aware that the father of the boy William Primrose was the clubmaster who had unsuccessfully been prosecuted, as aforesaid, but he needlessly asked the pursuer's wife, who was present, ‘What does your husband do?’ The pursuer's wife replied that he was clubmaster of the Abbotsford Club, The defender thereupon said that he must continue the case to have the boy's father before him, and he despatched a policeman to bring the pursuer to the Police Court. He did this for the purpose of slandering the pursuer, as after-mentioned. The defender had no right to send for the pursuer as he did, especially seeing that the pursuer, finding it inconvenient for himself to attend, had directed his wife to look after the boy, who, he had satisfied himself, was not guilty of any offence. A policeman having been sent for him, the pursuer appeared, along with his boy, at the bar later in the day. The defender thereupon asked him, ‘Are you the boy's father?’ The pursuer replied that he was. The defender thereupon said, without any reference whatever to the charge made against his son, ‘You are the clubmaster of the Abbotsford Club?’ The pursuer replied that he was. The defender thereupon uttered the following words, or words to a like import and effect, ‘Well, I have to tell you that not only are you ruining other people but you are ruining the boy. I know several families who are going straight to the devil from your club. You take their money, then send them out, while their wives and families are starving, and they are nearly killed when you are done with them, and here your boy comes charged with felony.” Said statements had no bearing upon any business before the defender, and the pursuer was neither accused nor witness.… Explained that the defender in asking the pursuer's wife who her husband was merely pretended to ask for information. He was aware, having been informed by the officials of the Court who the boy was, but he sent for the pursuer wantonly to gratify his feelings of malice against the pursuer and the institution of which he was master. The defender had no right to send for and address him as to his son's conduct, even had the case been heard and proved, which it had not, and his only purpose in sending for him was to take advantage, as he thought with impunity, of his magisterial position to vilify him in public. Moreover, the said observations were not pertinent to any case

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before the defender. The defender knew the boys were not to be tried, and they were not tried on said day. (Cond. 7) The said statements, made time and place last above libelled, were of and concerning the pursuer, and they are false and calumnious, and were made wantonly, recklessly, maliciously, and without probable cause.” The pursuer also averred that the case was continued to another day, and that the case was stopped when it was half heard by the magistrate (Bailie Murray), who observed that the prosecutor had utterly failed to make out the charge against William Primrose, and that the charge was too trivial and ought never to have been brought.

The defender pleaded—“(3) The statements complained of being alleged to have been made by the defender while sitting in a public court in his capacity as a magistrate and police judge with reference to a charge which he was considering in that capacity are absolutely privileged, and the defender should be assoilzied, with expenses.”

The pursuer proposed an issue for the trial of the cause.

On 27th November 1901 the Lord Ordinary ( Stormonth Darling) sustained the third plea-in-law for the defender, and assoilzied him from the conclusions of the summons.

Opinion.—“On 16th August 1901 the pursuer's son, a boy of nine, was brought before the defender, sitting as one of the police judges of the city of Edinburgh, on a charge of stealing a lemonade bottle from a lorry. The defender continued the case in order that the pursuer, as the boy's father, might attend. This the pursuer did at a later hour of the same day, whereupon the defender addressed him in the words set out in condescendence 6. The case was then adjourned for proof, and at the adjourned diet, when another magistrate was on the bench, the charge against the boy was dismissed.

The pursuer complains of the language addressed to him by the defender as slanderous, claims damages for its use, and proposes an issue for the trial of the cause.

The defender's first objection to an issue being granted is that the words complained of are not slanderous. If I found it necessary to decide this question, I should have some difficulty in holding that they are. The pursuer does not seek to put any innuendo upon them, and the words are therefore to be judged of as they stand. They are strong undoubtedly, and not such as any man who thought them undeserved could fail to resent. But they are mainly directed against clubs such as that which the pursuer manages, and, particularly when read in the light of the pursuer's own statements in condescendence 4, they seem to have been directed rather by extreme views on the liquor traffic and everybody connected with it, than by any personal ill-will against the pursuer himself. But I do not decide that question, because there is another plea urged by the defender on which I think he is entitled to succeed.

That plea is that no action will lie against a judge for language used when sitting in his judicial capacity, or in other words that in an action for defamation his privilege is absolute.

From a period long before the days of Lord Mansfield this principle has been firmly fixed in the law and practice of England. In Rex v. Skinner ( 1772) Lofft 55, which was the case of an indictment against a borough magistrate, that great lawyer expressed it thus:—‘Neither party, witness, counsel, jury, or judge, can be put to answer, civilly or criminally, for words spoken in office.’ Coming down to later times, in Scott v. Stansfield (1868), L.R., 3 Excheq. 220, which was the case of an action of damages against a county court judge, Chief-Baron Kelly in announcing the unanimous judgment of the Court of Exchequer, stated the general proposition, as established by a long series of decisions, that no action will lie against a judge for any words spoken in his judicial capacity in a court of justice, even where the words are ‘alleged to have been spoken maliciously and without probable cause, and to have been irrelevant to the matter before him.’ His Lordship explained the rule as founded on public policy, and as essential to the independent administration of the law ‘in all courts.’ I am not aware that since then the rule, as regards judges of whatever degree, has ever been challenged in England; but there have been cases of the highest authority dealing with the cognate cases of pleaders and witnesses. I need only mention the case of Dawkins v. Lord, Rokeby (in 1875), L.R., 8 Q.B. 255, and 7 English and Irish App. 744, and Munster v. Lamb (in 1883), L.R., 11 QBD 588. The first of these was a unanimous judgment of ten judges in the Exchequer Chamber, affirmed by a unanimous judgment of the House of Lords consisting of Lord Cairns, Lord Chelmsford, Lord Hatherley, Lord Penzance, Lord O'Hagan, and Lord Selborne. The effect of it was to extend to a person who gave evidence (not upon oath) before a court of military inquiry the absolute privilege attaching to a witness in a court of justice, and the Lord Chief Baron, in delivering the judgment of the Exchequer Chamber, assimilated the position of a witness in giving evidence ‘however false or injurious to the character or interests of a complainer’ to that of ‘judges upon the bench, whether in the superior courts of law or equity, or in the county courts, or sessions of the peace.’ Munster's case was an action of damages against a solicitor for highly defamatory words spoken in a court of petty sessions when defending his client against a criminal charge, and Lord Esher, then Master of the Rolls, in delivering the judgment of the Court of Appeal, referred to the cases of judges, witnesses, and advocates as all resting on the same foundation of public policy—‘For the purposes of my judgment,’ he said, ‘I shall assume that the words complained of were uttered by the solicitor maliciously, that is to say, not with the object of doing something useful towards

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the defence of his client; I shall assume that the words were uttered without any justification or even excuse, and from the indirect motive of personal ill-will or anger towards the prosecutor arising out of some previously existing cause, and I shall assume that the words were irrelevant to every issue of fact which was contested in the court where they were uttered; nevertheless, inasmuch as the words were uttered with reference to, and in the course of, the judicial inquiry which was going on, no action will lie against the defendant, however improper his behaviour may have been.’ And Lord Justice Fry pointed out that the rule had been adopted, not in order to screen persons who acted in the malicious or reckless way thus figured, but to guard against the danger that those who merely wished to do their duty might be harassed and deterred by the fear of actions being brought against them.

I have dwelt upon these English cases for two reasons. The first is that where a rule of law is founded upon considerations of public policy, there is a strong presumption, to say the least of it, that the same considerations ought to be applied to two countries living under the same constitution. The second and more immediate reason is that these English decisions have been approved of and followed by our own courts. It is true that in the single case of defamatory words used by a litigant in the course of his pleadings there is a distinction between the laws of the two countries. In England his privilege is as absolute as that of judges, counsel, and witnesses. In Scotland, on the other hand, as pointed out by Lord President Inglis in Williamson & Umphray v. Robertson, 17 R. 905, his privilege is only qualified, and an issue will be allowed against him if the pursuer undertakes to prove malice. This difference rests not merely on a series of cases in Scotland which draw a distinction between the privilege of a litigant and his counsel, but also on the view that public policy does not require the same absolute freedom of speech in the case of one who comes into court in order merely to advance his own private interests as in the case of those who to a greater or less extent are discharging a public function. But Williamson's case is a strong illustration of the absolute privilege accorded to one in the position of an advocate, even where the Court is of no higher position than a meeting of justices for the granting of licences. And the late Lord President, while drawing the distinction to which I have referred, quotes a passage from the opinion of Lord Penzance in Dawkins v. Rokeby with regard to a witness, applies it to the cognate cases of judges and advocates, and says broadly that ‘the absolute privilege accorded to judges, counsel, and witnesses by the law and practice of both countries is founded on obvious grounds of public policy.’ In the case of Harvey v. Dyce, 4 R. 265, which was an action of damages against a Sheriff-Substitute for defamatory words spoken of a litigant in the course of a debate before him, the same eminent Judge, with the concurrence of his brethren, expressly adopted the judgment of Chief-Baron Kelly in Scott v. Stansfield, and said that it had been “settled by a series of judgments in this Court and in England that against an action of this kind the privilege of a judge is absolute,’ It is plain, therefore, that as regards the privilege of judges his Lordship made no distinction either between the law of England and Scotland or between one kind of judge and another.

But then it is said by the pursuer that there is a judgment of the House of Lords in 1830 which ruled that a justice of the peace is not protected against an action of damages for defamation if it be averred that the words were used maliciously and if facts be stated from which malice can be inferred apart from the mere use of the words themselves. That is undoubtedly the effect of Lord Wynford's judgment in Robertson v. Allardice, 4 W. & S. 102. Plainly his Lordship proceeded on the ground that there was a distinction in this matter between supreme and subordinate judges. If he had done otherwise he would have run counter to a judgment of the House only six years before in the case of Hagart v. Lord President Hope, 2 Sh. App. 125, in which it was held that no averment of malice could sustain an action of damages against a judge of the Court of Session. Lord Wynford admits that in that case Lord Gifford, in delivering the judgment of the House, did not make any distinction between supreme and subordinate courts, and it is impossible to read the judgment without seeing that it was based on general grounds applicable to all judges. How, then, did Lord Wynford reach the conclusion that justices of the peace had only a qualified privilege? He had not much guidance from the Court below, for their Lordships had proceeded, not upon what Lord Pitmilly called ‘the supposed distinction between supreme and inferior judges,’ but on a ground which Lord Wynford entirely rejected, viz., that the defenders had gone out of the case before them, and had thereby rendered themselves liable in damages. He based his judgment mainly, I think, upon certain old Scots cases decided at a time when constitutional questions were but little regarded in Scotland, and when inferior courts were much less strictly regulated than they are now. It is remarkable, also, that Lord Wynford announced his intention to endeavour to forget for the moment all the English law he had ever known, although the question was essentially a constitutional one, in which English decisions were entirely to the point, unless it can be contended that there ought to be a difference between the two countries as to the importance of maintaining the independence of the whole judiciary. I suggest these considerations with all the respect which every judgment of the House of Lords must command, as tending to explain why this particular judgment stands in marked contrast to the whole train of decision both in England and Scotland. Undoubtedly, if it had the effect of laying down the rule for which the pursuer contends,

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the cases of Harvey v. Dyce and Williamson v. Robertson, forty-six and sixty years later, were wrongly decided, and there has been created an unfortunate cleavage in one of the minor branches of constitutional law. Nor can these results be avoided by suggesting, as regards Harvey v. Dyce, that there is any real distinction in this matter between the position of a sheriff and a police magistrate. We know that the jurisdiction of the Police Court of Edinburgh is regulated by special statute, and that the presiding judge may be either one of the City Magistrates or one of the Sheriffs of Midlothian. It would be fantastic to suggest that the privilege of the ‘Judge of Police,’ for that is the statutory phrase, varies according as he happens to be the one or the other. I observe that Lord Shand, in Williamson's case, said with reference to Lord Wynford's judgment in Allardyce, that ‘he put the case of a judge on exactly the same footing as that of a party, while undoubtedly in later times the judicial privilege has been found to be absolute.’

I come to the conclusion, then, that ‘the law and practice of Scotland,’ to use the words of Lord President Inglis—and if it be a matter of practice as well as law, practice must necessarily suffer modification with the lapse of time—is the same as the law and practice of England with regard to the immunity of all judges, supreme and subordinate, when sitting in their judicial capacity, from actions of damages for defamation.

For my own part I see no reason why a subordinate judge should not have the same measure of protection as that which is accorded to the Supreme Courts. The true responsibility of all judges depends on the constitutional checks which are provided against the abuse of their office, and it is certainly true that these checks are more simple and more easily applied the lower you descend in the scale of judicature.

It only remains that I should notice the argument that the defender was going beyond the case when he sent for the pursuer and addressed him in the language complained of. It is no part of my duty to criticise that language, but I cannot say that a magistrate who had to deal with a child of nine years old was acting unduly in suggesting the attendance of the child's natural guardian, or that in saying what he said, whether it was relevant or irrelevant, he was not sitting in his judicial capacity. If Lord Esher's test in Munster's case was correct, it is enough that ‘the words were uttered with reference to and in the course of the judicial inquiry which was going on.’ That being my view it is unnecessary to consider whether, if the defender's privilege is only qualified, the pursuer has sufficiently averred facts from which malice can be inferred. My apology for the length of this opinion must be that the question is one of some general importance.

I shall sustain the defender's third plea-in-law, disallow the issue, and grant absolvitor.”

The pursuer reclaimed, and argued—1. When he uttered the words complained of the respondent was not acting in his judicial capacity. It was clear from the words used and the circumstances as averred that they were not uttered in the course of the judicial proceedings. If a judge went out of his judicial capacity he was in the same position as a private individual. Assuming that the respondent was entitled to send for the accused boy's father though his mother was in Court, he was not entitled to make a personal attack upon the father in terms which were slanderous and totally unconnected with the case which was proceeding. In this view the pursuer was entitled to an issue without the insertion of the word “maliciously.” 2. The reclaimer's averment was that the respondent had attacked him maliciously, and by the law of Scotland an inferior judge was not protected by any privilege against an action of damages for a slander averred to have been uttered maliciously— Allardice v. Robertson, April 8, 1830, 4 W. & S. 102. The present case was a fortiori of Allardice v. Robertson, because in that case the man slandered was himself charged with a crime, and his agent had pleaded his character in mitigation of penalty; in the present case there was no such circumstance to connect the language used with the proceedings. 3. The English cases relied on by the respondent in support of his absolute privilege did not apply here, even assuming the privilege of a superior and inferior judge to be identical, because there the words uttered were held to have been uttered with reference to judicial proceedings and against a party to the proceedings; moreover, the English cases could not be relied on as authorities in Scotland— Allardice v. Robertson, Lord Wynford, pp. 111 and 115. If the defender was privileged but was liable under the case of Allardice for defamatory language uttered maliciously, then the pursuer was entitled to an issue if he undertook to prove malice and had averred facts and circumstances from which malice might be inferred— Macdonald v. M'Coll, July 18, 1901, 3 F. 1082, 38 S.L.R. 781. The issue should be allowed.

Argued for the respondent—When he uttered the words complained of the respondent was speaking in judicio. The connection between the words uttered and the case proceeding was the suggestion that the business carried on by the reclaimer was not conducive to good moral influence on his boy. The judicial privilege was absolute with regard to words uttered in judicio, and it had been held in England that there was no difference between the privilege of a judge of the Supreme Court and that of an inferior judge— Rex. v. Skinner (1772), Lofft 55; Scott v. Stansfield, (1868), L.R., 3 Excheq. 220; Dawkins v. Lord Rokeby (1873), L.R., 8 Q.B. 255, Kelly, C.B., p. 268; Munster v. Lamb (1883), L.R., 11 QBD 588; Royal Aquarium v. Parkinson (1892), 1 Q.B. 431, Lopes, L. J., 451. The Scotch cases were to the same effect, and

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no distinction had been made between the laws of the two countries— Haggart's Trustees v. Lord President Hope, April 1, 1824, 2 Sh. App. 125, Lord Craigie. p. 133, Lord Robertson, p. 134, at foot, Lord Gifford, p. 143; Williamson v. Umphray & Robertson, June 11, 1890, 17 R. 905, Lord Shand, p. 915, 27 S.L.R. 742; Harvey v. Dyce, December 23, 1876, 4 R. 265, Lord President 266, 14 S.L.R. 178. The case of Allardice v. Robertson, ut sup., was decided on the ground that the justices of the peace had gone extra judicium. That case had been doubted by Lord Shand in Williamson v. Umphray, and Lord Coleridge in Seaman v. Netherclift, 1876, 1 C.P.D. 540, had held himself bound on the authorities to disregard it. If there was to be inquiry it should be by proof, not jury trial, privilege being a question for the Court.

At advising—