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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mills v. Kelvin & Jambs White, Ltd [1912] ScotLR 725 (28 May 1912) URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0725.html Cite as: [1912] ScotLR 725, [1912] SLR 725 |
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A manager brought an action of damages against his former employers for having, as he alleged, falsely, maliciously, and without probable cause, lodged with the procurator-fiscal a charge of theft, and also one of fraud, against him. An issue and counter issue having been allowed, the Court granted the pursuer a diligence to recover “All charges, statements, or other writings lodged by the defenders or their solicitor, or by any of their directors, with the Procurator-Fiscal, Glasgow, or the Crown Agent, Edinburgh, and relating to charges of theft or fraud against the pursuer between 1st November 1911 and 16th January 1912.”
R. K. Mills, instrument maker, Clarkston, pursuer, brought an action against Kelvin & James White, Limited, nautical instrument makers, Glasgow, defenders, in which he claimed £5000 damages for slander in respect, inter alia, of their having, as he alleged, falsely, maliciously, and without probable cause, lodged certain criminal information with the procurator-fiscal against him.
The pursuer, who had formerly been in the defenders' service as works manager, but who had been dismissed, averred—“(Cond. 4) In or about the month of November 1911 the defenders, through their law agent, lodged with the Procurator-Fiscal at Glasgow two serious criminal charges against the pursuer, viz., ( first) a charge of the theft of certain gauges, jigs, and other articles which were the property of the defenders, and ( secondly) a charge of fraud in connection with the despatch of said articles to the premises of Messrs Burt Brothers in Birmingham. The precise words in which the defenders formulated the said charges against the pursuer are unknown to him, but the substance of the charges is as above set forth, and said charges were put forward by the defenders on or about the 4th, 8th, and 15th of November 1911, and these were maliciously persisted in and pressed in the following months of December and January. The defenders have prevented the pursuer from obtaining the documents which the defenders, through their law agent and directors, lodged with the criminal authorities, but he believes and avers that the charge of theft was contained in a statement lodged in or about November 1911 with the procurator-fiscal, and the charge of fraud was made in or about the month of December or January following and was contained in what purported to be precognitions and statements of certain of the defenders' directors and servants and Mr F. H. Harris (works manager for Burt Brothers), and in certain letters written by or on behalf of said directors (who were acting for the defenders) to the Crown Agent in Edinburgh.”
He pleaded—“(1) The defenders having falsely, maliciously, and without probable cause lodged the said criminal information with the procurator-fiscal against the pursuer, the defenders are liable in reparation.”
The defenders, who admitted that in the month of November 1911 they “laid before the Procurator-Fiscal at Glasgow certain information which had come to their knowledge with reference to the pursuer's actings, with a view to the prosecution of
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the pursuer on a charge of theft or fraud,” pleaded, inter alia—“(2) The defenders having acted with probable cause and without malice in lodging the said criminal information with the procurator-fiscal, they should be assoilzied. (3) The statements made by the defenders in the information laid by them before the procurator-fiscal being true in point of fact, the defenders should be assoilzied. (4) The pursuer having been guilty of theft as condescended on, the defenders are entitled to absolvitor.”
On 8th March 1912 the Lord Ordinary ( Ormidale) approved of the following issues and counter issue:—“1. Whether the defenders, in or about the months of November and December 1911 and January 1912, falsely, maliciously, and without probable cause, lodged, or caused to be lodged, with the Procurator-Fiscal at Glasgow a charge or charges of the theft by pursuer of certain gauges, jigs, or other articles which were the property of the defenders, to the loss, injury, and damage of the pursuer? 2. Whether the defenders, in or about said months, falsely, maliciously, and without probable cause, lodged, or caused to be lodged, with the Procurator-Fiscal at Glasgow, or the Crown Agent at Edinburgh, a charge or charges of fraud against the pursuer, to his loss, injury, and damage?” Counter issue.—“1. Whether during the period between 1st January 1911 and 21st September 1911 the pursuer, while in the service of the defenders, fraudulently caused to be made for himself by the defenders' employees, and at the defenders' cost, duplicates of the tools, gauges, patterns, and other articles employed in the manufacture of the defenders' instruments, and also caused to be delivered to himself a complete azimuth mirror, the property of the defenders, and further fraudulently caused the said duplicates and other articles and the said mirror to be forwarded to Birmingham on various dates during said period, for his own purposes, and to await his further instructions?”
The pursuer lodged a specification of documents for the recovery of which he craved a diligence. The first article was as follows:—“1. All charges, applications statements, or other writings, lodged by the defenders or their solicitor or by any of their directors with the Procurator-Fiscal, Glasgow, or the Crown Agent, Edinburgh, and relating to charges of theft or fraud against the pursuer between 1st November 1911 and 16th January 1912.” [The word “applications” in italics was deleted in the print as amended.]
His Lordship having granted diligence for the recovery of the documents called for in the first article as amended, the defenders reclaimed, and argued—The pursuer was not entitled to recover the pre-cognitions taken by the defenders, for these were in the same position as pre-cognitions taken by the procurator-fiscal Such precognitions were not recoverable— Sheridan v. Peel, 1907 S.C. 577, 44 S.L.R. 406.
Argued for pursuer—The specification had been intimated to the Lord Advocate and he had not lodged objections. That being so, it was well settled that the pursuer was entitled to recover the documents called for— Henderson v. Robertson, January 20, 1853, 15 D. 292.
The Court (the
Counsel for Pursuer— Morison, K.C.— C. H. Brown. Agents— Carmichael & Miller, W.S.
Counsel for Defenders— Macmillan, K.C.— Hon. W. Watson. Agents— Alexander Morison & Company, W.S.
