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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Barratt International Resorts Ltd V. Barratt Owner's Group (Revised 1) [2002] ScotCS 318 (20 December 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/318.html Cite as: [2002] ScotCS 318 |
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Barratt International Resorts Ltd V. Barratt Owner's Group (Revised 1) [2002] ScotCS 318 (20 December 2002)
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OUTER HOUSE, COURT OF SESSION |
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A2387/99
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OPINION OF LORD WHEATLEY in the cause BARRATT INTERNATIONAL RESORTS LIMITED Pursuers; against BARRATT OWNERS' GROUP and OTHERS Defenders:
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Pursuers: Sandison; Boyds
Second Defenders: A Smith, Q.C.; Digby Brown
Fourth and Fifth Defenders: Dunlop, Brown; Shepherd & Wedderburn, W.S.
20 December 2002
[1] The pursuers are a company incorporated under the Companies Acts and have their registered office in Edinburgh. They have an interest in a number of holiday resorts in the United Kingdom and Spain and in particular they manage resorts in Scotland at Aberfoyle, Loch Rannoch and Dalfaber. These resorts are timeshare developments where what the pursuers call visitors purchase the right to occupy an apartment within the resort for a specific period each year. Such persons are more commonly known as timeshare owners. This right persists for a lengthy or indefinite period of time. The heritable subjects at each resort are owned by independent trust companies in trust for a resort club, which is a body set up to administer each resort. In terms of the constitution of each resort, the resort club is made up of the owners of all the timeshare apartments. This club is represented by a committee. There are five members on each committee, three of which are elected by the owners of the timeshares and two of which are nominated by the pursuers. The committee appoints a management company to maintain the resort. The pursuers themselves are the management company selected by the committee in all of the resorts with which they are connected. [2] The first defender is an unincorporated body established some years ago by the second and third defenders to represent the interest of the occupiers of timeshare apartments managed by the pursuers. It is said to have been dissolved in May 2000. There has been no appearance for the first defender in the present action. The second and third defenders are timeshare owners at the pursuers' Aberfoyle resort and have been since 1995. They are dissatisfied with certain aspects of the way in which their timeshare apartment is managed by the resort club committee and by the pursuers as the management company. They believe that the pursuers are arranging the regulation of the timeshare resorts with which they are connected in their own interests and not in the interests of the timeshare occupiers. The defenders have made their views clear on a number of occasions and in a number of ways, particularly by directing a variety of statements against the pursuers on a website and by means of a magazine, called "The Takeaway - The Barratt Owners' Newsletter", which they have produced from time to time. It appears that the fourth defender has died and the fifth defender is currently in negotiation with the pursuers to withdraw from the action. The second and third defenders are therefore the only remaining active defenders in the case. [3] In the present action the pursuers seek three conclusions against the defenders. The first is a claim for damages, said by the pursuers to represent the pecuniary loss which they have suffered to their business goodwill in Scotland as a result of statements made by the defenders. Secondly, the pursuers seek interdict against the defenders from causing them verbal injury by publishing false statements or imputations to the effect that the pursuers are incompetent or unscrupulous, or that they will stop at nothing to achieve their own ends; that they are aggressive or unpleasant in business matters, or that they mismanage their business and the holiday resorts managed by them, or that they control the committees of the clubs at the various resorts. Thirdly, the pursuers seek interdict against the defenders from communicating in any way with members of the committees of the resort clubs for the purpose, or to the effect of suggesting to them, that they should act in any way in breach of the management agreements entered into between the various clubs and the pursuers. [4] The averments made by the pursuers in support of these conclusions are as follows. The defenders are said to publish through their internet website and their magazine material which is circulated to timeshare owners at the resorts managed by the pursuers, including such owners in Scotland. In Condescendence V of the Closed Record the pursuers list a number of statements made by the defenders which they describe as false allegations and malicious imputations against them and their business. In particular, they aver that on 2 September 1999 the defenders on their website described the pursuers as grossly incompetent and as pulling the strings of club committees. In May 1999 the pursuers were described as having pulled nasty little tricks to stop timeshare occupiers having their say at meetings, and to have told lies about the defenders. In January 1999 the pursuers aver that the defenders, again on their website, indicated that the pursuers would stop at nothing to achieve their ends, and called for them to be removed completely as "the only answer". [5] In the edition of "The Takeaway" dated August 1999, and circulated to persons holding timeshares at the pursuers' resorts, the pursuers were accused of mismanagement, and the retiring chairman of the committee at the Aberfoyle resort was described as having acted on the orders of the pursuers. This article was accompanied by a picture of a Cossack kicking out with his boot, which the pursuers interpret as suggesting that they are in the habit of strictly controlling club committees. In the same publication the pursuers are described as unscrupulous developers, and an earlier issue of the newsletter described doing business with the pursuers as being characterised by unpleasantness and aggravation. In an issue of the magazine dated October 1999 the pursuers are accused of stage managing the 1999 Annual General Meeting at the Forest Hills Resort, so that democracy and the owners' wishes were never allowed to interfere with what was described as the pursuers' master plan. The same issue further alleges that the pursuers have only one interest, namely the maintenance of their control over the club combined with their ability to extract vast sums of money out of the occupiers of the timeshare apartments without any real accountability. The pursuers infer further from this that the charges which they make for carrying out their management responsibilities are said by the defenders to be excessive. In the same issue the pursuers are described as arrogant. [6] It is in terms of these averments that the pursuers seek to interdict the defenders from causing further verbal injury to them by repeating such alleged false statements or imputations in terms of their second conclusion. Further, however, the pursuers by implication appear to accept on their pleadings that they have to aver that the falsehoods published by the defenders are actuated by malice against them. In particular, the pursuers specifically aver in Condescendence VI that the nature of the falsehoods and the circumstances of their publication indicate what is described in the pleadings as a "sole or dominant intention" on the part of the defenders to injure the reputation and commercial interests of the pursuers. In particular, reference is made to an entry in the defenders' website of 1 September 1999 which notes, with approval, that the defenders had given the pursuers "a bloody nose", and which calls upon the readers to "wound" the pursuers. In the edition of "The Takeaway" of August 1999, the defenders note with satisfaction that they have given the pursuers a nasty series of headaches. The pursuers also note that the defenders' email address during early 1999 was "[email protected]". Finally, one of the directors of the pursuers' executive is referred to as "a Furby" and as "oily". In these circumstances the pursuers allege that the defenders have demonstrated that their sole or dominant interest in making these various statements consists in injuring the pursuers' business reputation and goodwill. Further, the pursuers claim that the defenders have set about harming their business in order to promote their own activities, advertisements for which appear in their publications and website. They accordingly seek interdict in terms of the third conclusion of the summons. [7] The pursuers' case against the defenders therefore comprises three distinct elements. In the order discussed at debate, these were a claim for interdict against the defenders from causing verbal injury to the pursuers, a second claim for interdict against the defenders from inducing members of the committees of the pursuers' resort clubs to breach the management agreements between the clubs and the pursuers, and thirdly a claim for damages for injury to the pursuers' business goodwill arising out of the alleged false claims by the defenders. At debate, the second and third defenders were separately represented, and counsel for both argued that the pursuers' averments in support of their conclusions were irrelevant and lacking in specification, to such a degree that the action should be dismissed at this stage. [8] The second defenders' counsel began by arguing for his first plea-in-law, which is a general plea to the relevancy of the pursuers' case. He submitted that the essential nature of the delict of verbal injury alleged by the pursuers was malicious falsehood, and this had not been averred with sufficient clarity. More particularly, there was insufficient specification in the pursuers' pleadings to allow any court to conclude that the statements attributed to the second and third defenders were malicious. Counsel then set out to define what in his view was meant by verbal injury in Scots law. In his submission, the remedy of verbal injury sought by the pursuers in the present action is identical to the remedy of injurious falsehood or malicious falsehood found in English law. The requisites of such an action are threefold. Firstly, the pursuers must aver and prove a malicious communication, in the sense that it is intended to injure the pursuers' business or property. That the content of the information is malicious can be proved in a variety of ways. Secondly, the pursuer must prove that the statement contained in the malicious communication is false. Thirdly, the pursuer must prove that he has suffered at least some general financial loss as a consequence of the malicious of injurious falsehood. Reference was made to Walker on Delict, 2nd ed., p.902-3; and Clerk and Lindsell on Torts (18th ed.) p.1246 et. seq. Counsel also referred to section 12(1) of the Human Rights Act 1998 and claimed that the application of that section was significant in terms of the present action which sought to interdict freedom of expression. In considering the nature of the communication, a court should recognise the desirability of freedom of expression in any dispute. The present case, counsel argued, was simply about complaints being made by a customer concerning the poor quality of service received from the provider of that service. [9] Counsel sought further support for his view of what was meant by malicious falsehood by reference to a variety of authorities. In Joyce v Sengupta [1993] 1 W.L.R. 337, the Vice Chancellor (Sir Donald Nicholls) (at p.341) distinguished between defamation and injurious falsehood, and emphasised that both falsehood and malice were essential ingredients of the latter cause of action. In Balden v Shorter [1933] 1 Ch. 427, it was said that malice involves some dishonest or improper motive. In White v Mellin [1895] AC 154 the term maliciously was understood to mean something that was expressed for the purpose of injuring another person, and was not done either bona fide, or was done with the knowledge that what was said was false. Malice, counsel maintained, was something which was not easily established. It could be evidenced by spite, or malevolence, or some other improper motive, or by intent to injure, or at least by a lack of honest belief in the truth of what was being said (Walker, supra p.902). Reference was also made to Greers Ltd v Pearman & Corder (1922) 39 R.P.C. 406, and Spring v Guardian Insurance plc and Others [1993] 1.C.R. 412. [10] From these various authorities counsel for the second defender drew three broad principles concerning malice. Firstly, malice can be established by proof that the statement was false and that the maker of the statement knew that it was false, or possibly was at least reckless as to whether the statement was true or not. Secondly, malice can be proved by establishing that the maker of the statement was motivated by spite or an intention to injure without just cause, or some such other cause. Thirdly, the mere fact that a statement was false did not amount to malice. In these circumstances, counsel submitted that the pursuers required to describe and establish an ulterior or dominant motive in the pleadings, which would indicate that any allegedly untrue statement made by the defenders was malicious. The pursuers have not in the present case made clear the basis of such a claim. Having regard to all the statements made by the defenders in their context as averred by the pursuers, counsel submitted that the pursuers had not demonstrated that the dominant motive of the defenders has been to harm or injure the pursuers. Accordingly, the remedy of verbal injury was not available to them. [11] Counsel for the second defender then turned his attention to the pursuers' third conclusion, which seeks to interdict the pursuers from communicating with members of the committees of the resort clubs, suggesting that they should act in breach of contracts between themselves and the pursuers. It was accepted that it was an actionable delict for a third party knowingly or unjustifiably to induce a breach of contract by direct persuasion on inducement, thereby causing damage (Walker supra p.919-921). [12] In the present case, however, counsel submitted that there were no averments that any committee member was going to break any contract, or that the purpose of any communications issued by the second defender was to induce committee members to break their contractual obligations. So even if there was an inducement by the defenders to the resort committees or other timeshare owners to breach the terms of their agreement with the pursuers, such an approach was apparently never going to be acceded to and interdict should therefore not be granted. There must be averments to the effect that contractual obligations will be breached as a result of the defenders' activities. Reference was made to the British Motor Trade Association v Gray 1951 SC 586 at p.599-600. In these circumstances the averments supporting the second conclusion of the summons should be dismissed. [13] Finally, counsel turned to the issue of damages. He maintained that the averments in support of the first conclusion of the summons were wholly lacking in specification. Although section 14 of the Defamation Act 1952 provided that the averment of special damage was not necessary in actions of this kind, some detail of the general loss claimed by the pursuers should be provided. All that was said was that there had been damage to the business and that management time had been spent dealing with the defenders' claim. In these circumstances the pursuers' conclusion for damages should also be dismissed, and the defenders' third plea-in-law should be sustained at this stage. [14] For the third defender, counsel similarly asked for dismissal of the action in terms of his preliminary plea-in-law. Counsel's submissions in respect of the pursuers' second and third conclusions were grouped under four headings, echoing the submissions of the first defender, which he adopted. In addition, however, he submitted that there were no relevant averments which could attribute responsibility to the third defender for the verbal injury complained of by the pursuers. He also adopted the second defenders' submissions on damages. However, he made a number of additional submissions. It was insufficient, he maintained, for the pursuers simply to extract a series of discrete quotations attributable to the defenders outwith their context and describe these as malicious. This did not provide proper notice to the defenders of the pursuers' complaint. It was essential that the words complained of were set in their context; the pursuers cannot pick and choose. Reference was made to Martin v McLean (1844) 6 D 981; Collins v Jones [1955] 1 Q.B. 566 at 571 - 572; and Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 70D. Without the allegations being placed in context, it was impossible to know what the true meaning of the words might be. The burden of proving that they were malicious rested on the pursuers. Regard also had to be given to the mechanism by which the words are said to have occasioned hatred and ridicule. The pursuers' averments in these respects lacked any kind of context and were wholly unsatisfactory. [15] Counsel for the third defender submitted that the leading case on verbal injury was Steele v Scottish Daily Record 1970 S.L.T. 53, where it was held that the words and expressions complained of have to be shown to be designed to injure the complainer, not simply to lead to public disapproval, adverse comment or criticism. The test is whether what was said could be properly regarded by a reasonable judge or jury as bringing the pursuer into public hatred and contempt (p.61). A bare averment that the words or article in question were designed to injure the pursuer or lower him in the public esteem is not enough (pp.63 and 64). [16] Secondly, counsel for the third defenders further submitted that bare averments of malice by the pursuers were insufficient to supply the necessary motive for any untrue statements (Horrocks v Lowe [1975] A.C. 135 at 145 and 149). A desire to injure the pursuers must be shown to be the dominant motive in the malicious communication; knowledge that it might have that effect is not enough. If the defender is acting in accordance with a sense of duty or in the bona fide protection of legitimate interests, what he says cannot be described as malicious. The pursuers must be able to prove, for example, that the defender knew what was said was false. The pursuers' averments did not satisfy these standards. In summary, the pursuers had to demonstrate that the averments on record could reasonably be regarded as evidence of malice, and in the present case they had failed to achieve this. Reference was made to Lyal v Henderson 1916 S.C. (H.L.) 167 at 175; Dunnet v Nelson 1926 S.C. 764 at 769 and Rodger v Orr S.C. 121 at 134. [17] The third submission for the third defender were that there were no relevant averments of responsibility against the third defender as an individual. This submission fell into two parts; firstly, counsel argued that there were no averments that the third defender was responsible for the publication of any of the material, and secondly, there were no specific averments of malice on her part. All that was said (at p.10E of the Closed Record) was that she was believed and averred to be in management and control of the publication "The Takeaway". Such a conclusion must be capable of being inferred from stated facts (Brown v Redpath Brown 1963 S.L.T. 219 at 222). There were no such facts averred in the present case. This is particularly important in respect of a personal attribute such as malice (Egger v Viscount Chelmsford and Others [1965] 1 Q.B. 248). There must therefore be particular averments of malice on her part; it is not enough just to say that she participated in a general exercise (Thomson v Ross unreported 18 July 2000 para.60-62). [18] Finally, counsel for the third defender submitted that the averments in respect of incitement to breach contract were wholly irrelevant and lacking in specification. In this respect he adopted the submissions of the second defender. The averments in Condescendence VIII in support of the third conclusion of the summons failed to specify what the third defender has said on this matter, and in particular to whom, when, and in what way she is said to have offered any inducement. It was therefore not possible to understand the nature of any inducement that she is said to have offered to other people to break any contract. The letter of 31 August 1998 referred to in Condescendence VIII contains no incitement to break any contract and was written by the second defender alone. There are therefore no averments of responsibility in respect of any statements made by the third defender on the question of any inducement offered by her to anyone to act in breach of contract, and accordingly the third defender's preliminary pleas-in-law should be sustained. [19] In response, counsel for the pursuers' argued that it was basically misconceived to suggest that an action such as this could be decided without evidence. He also submitted, in general terms, that there was little point in examining the English laws of defamation; there was no authority which suggested that the law of malicious falsehood in Scotland and the law of defamation in England were similar. There was, he submitted, very substantial differences between defamation and verbal injury. Reference was made to Cooper on Defamation (2nd ed.) p.6 et. seq. At pp.8 and 9, it was accepted that three things have to be proved in an action of verbal injury, namely that what was said was false, that what was said was said maliciously, and that injury or damage had resulted. The question of damages had been overtaken by the Defamation Act 1952. All that is therefore required to justify an action of verbal injury in Scotland now is that the words should reasonably support the inference of an intention to injure (Paterson v Welch 1873 20 R. 744 at 749; Waddell v Roxburgh 1894 21 R. 883). In the present case it could not be said that the statements described by the pursuers were not made, and were not made maliciously. It was not necessary that the malicious falsehood should lead to public hatred; a right of action for personal injury could also simply arise where commercial loss was suffered (see Steele v Scottish Daily Record pp.59-60). Accordingly in the present case considerations of public hatred and contempt were superfluous. Counsel for the pursuers therefore submitted that the test in a case such as the present as to whether the matter should go to enquiry was to see if there were averments of statements alleged to be made by the defenders which could reasonably be said to support the three ingredients of falsehood, intention to injure and actual loss. The false statements were found in the Closed Record in Condescendence V; the pursuers claimed that these words were intended to injure them, and they have averred a consequent loss. The statements complained of were clear. In these circumstances it was a jury question as to whether they were malicious. [20] In respect of the question of malice, counsel for the pursuers was particularly concerned to argue that the term contained no special meaning, as the defenders claimed. Malice, in this context, was simply an intention to injure. There was no Scottish authority to support the view that malice included the idea that a desire to cause injury had to be the dominant motive in the expression of that malice. This may not even have been the case in England (see Balden v Shorter at p.430); any improper or dishonest motive will do, and indecent and dishonest motives in that case were not even considered. Lord Diplock in the case of Horrocks v Lowe described a dishonest or improper motive as being sufficient to constitute malice. It was only where in cases of defamation, a party had placed themselves outwith the jurisdiction of qualified privilege that the question of a dominant motive to injure would arise in assessing the necessary ingredients of malice. This should not apply in an ordinary case of verbal injury. In the case of Steele v The Scottish Daily Record malice was described as merely an intention to injure. The defamation cases cited by the defenders were of little relevance, but even in these (for example Rodgers v Orr and Dunnet v Nelson) what was being considered was simply an improper motive. So counsel argued that malice in Scotland, in the context of actions of verbal injury, could be found just in an intention to cause injury. Such malice can only be inferred from evidence. It was accepted that the statements complained of were made, and their falsehood and malicious nature were therefore matters for evidence and proof. Further it was proper to have regard to the sweeping and general nature of the defenders' attacks on the way the pursuers had done business, the repetition of those attacks, and the fact that the defenders' claims were widely distributed on their website. The tone and content were also significant; much of what was said was sneering and scornful, contemptuous and derisory. The graphic terms used are illustrative of the state of mind of the defenders and indicative of an intention to harm. What the defenders had to say was due to malice, not mere dislike. This was evidenced by the defenders saying that they had caused the pursuers a nasty series of headaches. In addition, their email title for part of the relevant period was "anti-barratt", which showed evidence of their true intent, bearing in mind that they run a competing business. Accordingly there are clear averments that the defenders seek to harm the pursuers in their business, and this is sufficient to found an action of verbal injury. [21] In respect of the pursuers' claim for damages, counsel submitted that by virtue of section 14 of the Defamation Act 1952 the pursuers do not now have to prove special damage if the "words on which the action is founded are calculated to cause pecuniary damage to the pursuer". What this means simply is that such loss is likely to occur (Customglass Boats v Salthouse Bros. [1976] 1 N.S.L.R. p.36 at p.49). The pursuers have averments of financial loss in Condescendence VII, and such averments were considered sufficient in Waverley Housing Management Ltd and Another v The British Broadcasting Corporation (unreported 10 March 1993) on the question of damage to business. [22] In respect of the position of the third defender, counsel maintained that there was sufficient averments to attach responsibility. Both defenders were sued as office bearers of their organisation and as individuals. The defenders are called upon on record to say who is responsible for these various statements and that responsibility is something which must be within their knowledge. In these circumstances, the pursuers are fully entitled to use the formula that they believe and aver that the third defender was responsible for the material described. Further, there is evidence from some of the documents that the third defender was involved (for example production 6/6 at p.6). So in the circumstance it is entirely possible to infer that the third defender was responsible for the statements described in Condescendence 5. [23] Finally, counsel maintained that the pursuers' case that the defenders were concerned to induce a breach of contract was relevant. There was a valid contract between the management committees and the various clubs. The terms of the contracts are found in production 6/8. The defenders have suggested that properly constituted management agreements should be broken. Counsel then gave a number of references to support this claim, in particular in production 6/6 at p.2, production 6/7 at p.3 and production 6/9 (or 6/10) at p.2 of 5 and 6/5/1. (I note that there appears to be some confusion in the marking of these productions). There was also the threat of court action being taken against committee members in terms of production 6/5 which could be seen as a threat to committee members in general terms. Accordingly, as the effect of these various statements could not be properly judged simply as they read; there is a requirement to hear evidence, and to allow this part of the action also to go to inquiry. [24] An action of damages for verbal injury is plainly now a well settled remedy in Scots law. The term is recognised in a side title to section 14(b) of the Defamation Act 1952 which applies to Scotland. It has been suggested (Walker on Delict, 2nd ed. p.902) that a more appropriate title for the present sort of action might be injurious or malicious falsehood, although such descriptions may only reflect attempts to define particular aspects of the nature of the various types of action for verbal injury. In particular, such a suggestion might indicate that in all cases the words injurious and malicious were interchangeable. In fact, an action of this kind may on one view require the averment and proof of both malice and injury. These various terms originate from English law from which much of the Scottish jurisprudence has developed. However, from the authorities there now appears to be a settled Scottish position. [25] An action for verbal injury arises out of harm said to be done to a person in his business relations by written or verbal falsehoods. That being so, it follows that an action for interdict and interim interdict is competent against an apprehended delict of this kind. The term "verbal injury" is therefore distinct from defamation, which is the remedy available to someone whose personal reputation has been injured by the expression of written or verbal falsehoods. It is also distinct from convicium which is concerned with the hurt to an individual's feelings and public reputation, by being brought into public hatred, contempt and ridicule. Further, there are various types of slanders, recognised principally in the English authorities, but which are of no concern in the present case. Different considerations clearly apply to these various kinds of action. [26] In respect of an action for verbal injury the delict consists in "maliciously communicating written or oral falsehoods calculated in the ordinary course to produce, and in fact producing, actual damage" (Walker p.902). The ingredients of such an action are that false statements, either written or verbal, must be maliciously communicated to third parties, which are calculated or likely to produce, and which in fact do produce, actual damage to the pursuers' business interests. It is not necessary for the pursuers to aver and prove that the defenders knew that the statements were false. The principal discussion at debate in the present case in effect centred around the precise meaning of the word malice in the context of an action for personal injury. [27] Counsel sought to refine their competing definitions of what is meant by malice with reference to a series of authorities, a number of which were concerned with actions for defamation. It was common ground that in such actions the nature of the relationship between the parties was frequently such that the defender could claim that what was said was protected by absolute or, more frequently, qualified privilege. This defence may be rebutted if the pursuer can prove that what was written or said was motivated by malice. In a number of cases the nature of that malice has been examined. Further, the question of malice has been considered in a number of English authorities concerned with slander of goods or title. In the latter cases the question of malice is tied in with the question of comparing the respective merits of rival products, which introduces elements not always relevant to the principles of verbal injury. In summary, these various cases are not always of direct assistance in an action for verbal injury, but they examine some issues which are of interest. [28] In Spring v Guardian Insurance [1993] 1.C.R. 472, it was held that there was no difference between the meaning of malice in actions of malicious falsehood on the one hand and in actions of defamation on the other. In addition, the defenders sought to incorporate the idea of freedom of speech, particularly with reference to the Human Rights legislation, not just into establishing qualified privilege but also into the assessment of whether what was said was malicious. Counsel for the pursuers in the present case therefore maintained that malice was confined to some dishonest or otherwise improper motive and that such an improper motive will be inferred or proved when the words are shown to have been calculated to produce actual damage. However, I think that these conclusions represent an over simplification of the position. In Spring v Guardian Insurance clearly what was envisaged was that the source of the malice would have been that the defenders knew what was said was false or that they were recklessly indifferent to that falsehood. This is not the case here and there are no such averments to that effect. [29] Further, in the case of special or qualified privilege, there must in these circumstances be particular evidence of malice (Lyall v Henderson 1916 (H.L.) 17. It is clear that a bare averment of malice is not sufficient to overcome a qualified privilege, but rather relevant averments are required, intrinsic or extrinsic, to demonstrate that there has been malice on the part of the defender (Rodgers v Orr 1939 S.C. 133, 1939 S.L.T. 49; Quilty v Windsor 1999 S.L.T. 346, 354.) Further, it is clear from the judgment of Lord Eassie in Thomson v Ross (at para.72) that such malice in actions of defamation is not constituted by remarks which are merely unfriendly. [30] Accordingly, to succeed in the ordinary case of verbal injury the pursuers must prove two things. Firstly, they must prove that the statements made by the defenders are false. Secondly, the pursuers must prove that the communication of these statements was malicious. In the context of this kind of action, malice comprises three elements. Firstly, the malice consists in the deliberate utterance of a false statement. Again it will be noted that this does not mean that the maker of the statement necessarily knew that it was false. Secondly, the falsehood must be uttered with the intention and design of injuring the pursuer. This may be evidenced by "spite, or malevolence, or other improper motive, or intent to injure the pursuers' business, or at least a lack of honest belief in the truth of the statement made" (Walker, p.902). Knowledge of the falsity of a statement may go a long way to demonstrate an intention of injuring the pursuers. Finally, the falsehood maliciously uttered must be calculated or likely to cause the pursuers some actual damage. It is accepted that it is not necessary now for the pursuers to show that they have suffered actual or special damage (Defamation Act 1952 section 14); it is sufficient if the pursuers offer to prove a general damage or loss to the business. [31] It therefore seems to be a clear inference from the various authorities that not all untrue statements made by one party, and communicated to another with an intent to injure or damage, necessarily should be described as malicious. For example, in Steele v Scottish Daily Record, the court, in considering the question of injury and damage, concluded that any resulting public hatred or contempt meant something more than lowering in public esteem, and something more akin to condemning or despising (per LJC Wheatley at p.62). Equally, the communication of words which are merely "ill-disposed, prejudiced or hostile" to the pursuers will not establish the necessary quality of malice (Thomson v Ross para.72). Further, in considering whether or not malice truly exists, regard should be had to the balance between freedom of expression and the right to be protected from calumny (Horrocks v Lowe supra per Lord Diplock at p.150). Although the last two references are to actions of defamation, and in particular to the question of whether the quality of malice in an untrue statement can overcome the defence of qualified privilege, I am satisfied that they also provide relevant considerations in the assessment of what constitutes malice in an action of personal injury. There are in short other considerations in this kind of action apart from the simple communication of untrue statements with the intention of causing damage or injury. [32] The existence of malice therefore may be found from an examination of the way in which statements proved to be untrue are conveyed to the party claiming personal injury. An examination of a number of factors may require to be made before a decision can be reached as to whether the expression of untrue statements can be said to be malicious. But essentially the quality of malice requires some positive element of ill-will or intent to injure as either a principal or a significant element in the expression of any untrue statements. Such malice must therefore be evidenced by something more than the expression of a statement subsequently found to be untrue and uttered with the intention of causing injury or damage. The expression of the statement must certainly be deliberate and made with the intent of injuring the party about whom it is made. That malice is also present may be evidenced in the circumstances by the knowledge that the statement is false, or made with such recklessness that it amounts to the same thing; or by averments of improper motive, malevolence, ill-will, or other evidence of a malicious willingness to injure the reputation of the party at whom the false statements are directed. It may be significant to consider how central the statements are to any dispute ongoing between the parties. It may be easier to infer malice from statements which do not go to the heart of any such dispute but which are rather essentially adventitious in nature. The lack of honest belief in the truth of a statement may in the circumstances go a long way to demonstrate that malice is present. But such considerations - separate from the mere transmission of an untrue statement, - must be separately found. In addition the question of whether the statement is malicious or not will require to be considered against the need to recognise that parties must be able to exercise their views with reasonable freedom in any debate which legitimately concerns them, and an action of personal injury should not be used to stifle a debate however vigorous between parties in conflict over their respective rights. [33] It therefore follows that merely to aver that untrue statements have been made and that they were intended to and did cause injury is insufficient to found an action of verbal injury. The facts and circumstances which introduce the quality of malice must be clearly specified. In Rodgers v Orr 1939 S.C. 121, the Lord President (Normand) (at p.121) said: "....it is not enough for the pursuer merely to say that the defender spoke maliciously; he must go on to aver facts and circumstances, intrinsic or extrinsic, from which malice can reasonably be inferred." Although Rodgers v Orr was an action of defamation, I have no doubt that the same consideration should apply in a case of verbal injury. In Steele v Scottish Daily Record supra, which was a case of verbal injury, Lord Milligan at p.63 said:"In my opinion the submission of the defenders to the effect that in a case of verbal injury a pursuer must aver and prove in what particular way the words or article complained of were designed to injure him is well-founded. In a case of slander intention to injure is presumed, but in a case of verbal injury a pursuer has to aver and prove that the words complained of were intended to produce the effect the words were said to have had (Cunningham v Phillips (1868) 6M 926 per Lord President Inglis at p.929(this reference should be to p.927)); a bare averment that the words or article were designed 'to injure the pursuer' is not sufficient."
