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Scottish Court of Session Decisions
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Cite as: 1927 SC 740, 1927 SLT 507,  ScotCS CSIH_2
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17 June 1927
The pursuer has raised the present action of damages against the defender on the ground that the statements contained in the extract from Mr Beveridge's letter annexed to the defender's letter are false and defamatory, and that the defender having published these statements is responsible therefor. It seems clear that the statements are defamatory, and the defender does not dispute this, nor does he deny that he is responsible for their publication. He maintains, however, that the occasion is privileged, and that there are no averments which, if proved, would entitle a jury to hold that he was acting maliciously. He also seeks to justify the libel, and has pleaded veritas; and in support of that plea he has made detailed averments on record, and proposed a counter-issue of veritas. The pursuer, on the other hand, contends that the averments made by the defender in support of his plea of veritas are not relevant, and that the counter-issue should accordingly be disallowed. By arrangement between the parties the argument before me was limited in the first place to the questions of whether the occasion was privileged, and whether malice was relevantly averred.
Was the occasion privileged? It is for the Court to decide whether the occasion is privileged or not, and at this stage of the case, that question must be decided on the pursuer's averments. The tests which have to be applied in deciding such a question have been laid down in many cases. Several of these are referred to in the opinion of Lord Atkinson in the case of London Association for Protection of Trade v. Greenlands, Limited,  2 A. C 15, at p. 33, and also in the opinion of Lord Hunter in the case of Cochrane v. Young, 1922 S. C. 696, at p. 701. I may refer to the oft-quoted passage in Parke, B's., judgment in Toogood v. Spyring, (1834) 1 C. M. & R. 181, at p. 193, “fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. … If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits”; and to the case of Davis v. Snead, (1870) L. R., 5 Q. B. 608, where Lord Blackburn used these words (at p. 611), “Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona fide and without malice does tell them it is a privileged communication.” It was maintained for the pursuer that a case of privilege could not arise unless a legal relationship existed between the person making the communication and the person to whom it is made. No doubt such a relationship exists in many of the cases in which it has been held that there was privilege, but I do not think it is essential that there should be such a relationship. It is sufficient to refer to the case of an employer who is asked to give the character of a former servant to a person who is contemplating employing him. No legal relationship exists in such a case, but it is well settled that a communication of that kind is privileged. In the admitted circumstances of the present case, it seems to me that the defender had a moral and social duty to make the communication complained of, and that he and the members of the committee had an interest in making and receiving it respectively. The pursuer had made a general appeal to the public of Scotland for donations and subscriptions on behalf of his mission and school and college, and he had also made a personal and individual appeal to the defender. As vouching his bona fides and also the good work which the mission was doing, he had founded upon and referred the defender to the appeal issued and signed by the members of the Scottish Committee. The pursuer in his condescendence avers that the cumulative weight of the testimony he produced was more than sufficient to vouch to any reasonable man, beyond any shadow of doubt, that the mission had done and was capable of doing useful work in its field of operations, and that the pursuer, as its general superintendent, was a man of unimpeachable character and worthy of trust. Now, I think it must be admitted that the pursuer's credentials appear to be very satisfactory, but I do not think a jury would be entitled to hold that the defender acted unreasonably or unfairly because he took the view that the people who signed the appeal might have little personal knowledge of the pursuer and the work being carried on by his mission, and that it would be more satisfactory to get first-hand information from a person living on the Gold Coast, in whom he, the defender, had confidence. Further, it appears to me that an institution of this kind, which makes an appeal to the public for funds, invites the public to make all reasonable inquiries into the objects and history of the institution and into the character of the person who manages and administers it. It is in the public interest that people should not be deterred by the fear of actions of damages from making inquiries and communicating the information so obtained to those who have recommended such an appeal. The report which the defender received from Mr Beveridge with regard to the pursuer and the mission was one which, if true, indicated that neither the pursuer nor the mission was worthy of support, and that the mission was merely a fraudulent scheme to benefit the pursuer, who was described in plain terms as a blackguard. Now, what was the defender's duty when he received this communication from Mr Beveridge? I think that he had both a duty and an interest to make known this communication to the individual members of the committee. As a member of the public and as an individual he had been invited by them to subscribe to the institution, and he had an interest to know what they had to say with regard to the information which he had received from Mr Beveridge with reference to the institution and the person who was at the head of it. On the other hand, the members of this committee had recommended the pursuer and his appeal to the people of Scotland, and they had accordingly an interest to receive this communication, which, if true, meant that the pursuer was perpetrating a fraud on the public. Further, if what was stated by Mr Beveridge was true, the members of the committee were themselves unwittingly being made participators in this fraud. I do not think it lies in the mouth of the pursuer to say that the defender and the members of the committee had no interest in the matter, for he himself had invited the defender to give a donation to the mission, and had referred him to the committee as a body who knew about himself and his mission. In Waller v. Loch, (1881) 7 Q. B. D. 619, an unfavourable report made by a charity organisation society to a lady to whom the plaintiff had applied for a donation was held to be privileged, on the ground that the society had a moral or social duty to make it. It is true that in that case the report was made in response to a request for information about the plaintiff. I think, however, that the same ground of judgment applies to a case where information which appears to show that an object is not deserving of support is communicated to those who are recommending the appeal by a person who has been asked to subscribe to it. I am therefore of opinion that the communication which was sent by the defender to the members of the Scottish committee, and which, if true, meant that the pursuer and his appeal were a fraud, was privileged.
It was argued for the pursuer, however, that, on the assumption that a communication dealing with the merits or demerits of the appeal would have been privileged, the communication actually sent exceeded the occasion of the privilege, in respect that it contained a personal attack on the pursuer, and also that in the last sentence it implied that his conduct had broken his wife's heart. The pursuer was, however, not merely a collector on behalf of the mission. He describes himself in his condescendence as being its founder and also its general superintendent. I cannot doubt that in these circumstances the personal character of the pursuer would be regarded as a material fact by prospective subscribers and by the members of the committee. I feel certain that the members of the committee would never have recommended the appeal if they had believed the pursuer to be a dishonest person, and I feel equally certain that very few subscriptions would have been obtained if that belief had been shared by the persons who had been invited to subscribe. The statement in the last paragraph of the letter might perhaps have been omitted, but it really adds nothing to what is contained in the preceding paragraph, as it appears to me merely to mean that the dishonest conduct of the pursuer, as described in that paragraph, had broken his wife's heart. As was pointed out by Lord Buckmaster, L.C. in Lyal v. Henderson, 1916 S. C. (H. L.) 167, at p. 175, “To submit the language used on privileged occasions to a strict scrutiny, and to hold all excess beyond the actual exigencies of the occasion to be evidence of express malice, would greatly limit, if not altogether defeat, the protection which the law gives to statements so made.” It was suggested, however, that the privilege was also exceeded, because the communication was sent not only to the individual members of the committee, but also to the secretary. But the committee were as a body interested in the matter, and presumably would consider it as a committee in the presence of the secretary, and I think it was natural and reasonable for the defender to send a copy of the communication to him.
Malice.—If the occasion was privileged and the privilege was not exceeded, the next question to be considered is whether malice is relevantly averred. I think it is now settled that a general averment of malice is not sufficient, and that facts and circumstances, intrinsic or extrinsic, must be averred from which a jury might infer that the defender had acted from personal illwill or from an indirect or improper motive, and that the presumption of good faith, which arises from the fact that the occasion is privileged, had been displaced—Cochrane v. Young, 1922 S. C. 696; Dunnet v. Nelson, 1926 S. C. 764; A B v. X Y, 1917 S C 15; Lyal v. Henderson, 1916 S. C. (H. L.) 167. The averments with regard to malice are to be found in condescendence 16. It is important to keep in view that the pursuer and defender had never met except at one interview. According to the pursuer's account of the matter the meeting appears to have been of an entirely harmonious character, and there is nothing averred which would give the defender any kind of reason for forming an illwill against the pursuer. Now, I do not leave out of account that malice may be inferred from the circumstances in which the communication complained of is made, or even from the terms of the communication itself, but the facts and circumstances averred must be judged of with reference to the case presented by the pursuer on record—Farquhar v. Neish, 17 R. 716, at p. 718; Dunnet v. Nelson, 1926 S. C. 764—and it seems to me a very material circumstance that there were no antecedent relations of any kind between the pursuer and the defender. It is difficult to conceive how in these circumstances the defender could harbour any illwill against the pursuer. Upon what facts and circumstances, then, does the pursuer found as indicating that the defender was acting maliciously? It may be observed that it is not averred by the pursuer that the defender did not believe the information contained in Mr Beveridge's communication, or that he knew it to be false. It is true that the pursuer avers that the defender had no grounds for making any charge against him, but this obviously means that he had no grounds other than the letter which he had received from Mr Beveridge. The circumstances which were founded on as pointing to malice were—(First) the serious nature of the charge; (second) the fact that no inquiry was made by the defender into the truth of Mr Beveridge's allegations, and that no communication was made to the pursuer before the members of the committee were informed; (third) the extravagant and intemperate nature of the language used; and (fourth) the fact that the defender had made no apology to the pursuer, but, on the contrary, had pleaded veritas.
I fail to understand how malice can be inferred from the serious nature of the charge. If an occasion is privileged, the defamatory character of the charge can never deprive the defender of the privilege which the law gives him, and this rule must apply whether the defamation be trivial or serious.“To raise out of the very facts which constitute the privilege an argument that it has been used dishonestly and not fairly seems to me to be out of the question”—per Lord Kinnear in Lyal v. Henderson, 1916 S. C. (H. L.) 167, at p. 183.
The second ground which the pursuer alleges for inferring malice against the defender is that he did not communicate with the pursuer or make any inquiry into the matter before transmitting the information to the committee. I do not think that the defender was bound to do either of these things. He certainly could not very well have conducted an inquiry into Mr Beveridge's allegations; and, if any such inquiry was to take place, it was much better it should be in the hands of the representative committee which had commended the appeal to the people of Scotland, rather than in those of a private individual such as the defender. I think the defender might well have been accused of acting as a busybody, if he had taken upon himself to conduct an inquiry at his own hand. Nor do I think that the defender was under any obligation to communicate with the pursuer himself. It could not be expected that the pursuer would pronounce an impartial opinion on charges against himself, and, whether he had admitted or denied them, I think it would still have been the duty of the defender to have communicated the information received from Mr Beveridge to the members of the committee. It has repeatedly been held in similar circumstances that such allegations are not sufficient averments of malice—Couper v. Lord Balfour of Burleigh, 1913 S. C. 492; A B v. X Y, 1917 S C 15; Cochrane v. Young, 1922 S. C. 696. It is also suggested that the fact that the defender had no authority from Mr Beveridge to publish his letter indicates that he was acting maliciously. The defender apparently assumed that Mr Beveridge would not object to the publication of the letter, but I fail to see how it can be inferred from that circumstance that the defender had an illwill to the pursuer. The fact that the defender disclosed to the members of the committee that he had not Mr Beveridge's authority to publish the letter seems to me rather to point to his good faith in the matter.
The third ground on which it was suggested that malice might be proved against the defender was that the language used in the communication was unnecessarily extravagant and intemperate. It must, however, be kept in view that the defender made no charge against the pursuer, but merely transmitted to an interested body the information he had obtained from Mr Beveridge. He is responsible for publishing Mr Beveridge's letter, but he did not adopt Mr Beveridge's language as his own, and in his communication to the committee he made it quite plain that he knew nothing of the matter himself. He expressed no opinion as to whether the allegations made by Mr Beveridge were well founded or not, but he merely forwarded them to the proper authority as requiring consideration by them. I think it would have been dangerous for the defender to have paraphrased in any way the words used by Mr Beveridge. His own letter is expressed in very temperate and reasonable terms, and the use of the words “private and confidential” was a warning by him to the recipients that the matter dealt with in the letter raised serious questions, and that it would require to be handled with discretion and reserve. In my opinion there is nothing in the terms of the defender's letter which would justify a jury in holding that the defender was actuated by a wrong motive.
Lastly, the defender is said to have acted maliciously, because he has refused to apologise to the pursuer and has taken a plea of veritas. It may be observed that it is not stated on record that the plea of veritas has been put forward in mala fide. That being so, I think I must assume that the plea has been put forward in good faith by the defender and in the fair exercise of his rights as a litigant. It has been held in England that a refusal to withdraw or to substantiate veritas may be evidence of malice—Simpson v. Robinson, (1848) 12 Q. B. 511,—but I was not referred to any case in which it has been held that the mere fact that the defender has put forward the plea of veritas is sufficient to warrant the inference of malice. The fact that a defender maintains his belief in charges which have been made against a pursuer in the face of the pursuer's denial is not in itself sufficient to justify a jury in holding that the presumption in favour of the defender's bona fides on a privileged occasion has been displaced—See Couper v. Lord Balfour of Burleigh, 1913 S. C. 492.
I am unable to find anything in the pursuer's averments which, if proved, would justify a jury in finding that the defender acted from anything else than a sense of public duty. I am therefore of opinion that there is here no relevant averment of malice. I shall accordingly sustain the defender's first plea in law; disallow the issues proposed for the pursuer; and dismiss the action.
The pursuer reclaimed, and the case was heard before the Second Division on 27th and 31st May 1927.
Argued for the pursuer (reclaimer);—The present case did not fall under the doctrine of privilege, even as that doctrine had been extended by the case of Cochrane v. Young . A plea of privilege was competent only when the statement of which complaint was made was uttered by a person with a duty to make it to another person having a corresponding duty to receive it. Here the relationship between the pursuer and the defender was not such as to warrant the plea. Neither the pursuer nor the Scottish committee had asked the defender to make inquiries relative to the pursuer; and the defender had no moral duty, right, or interest to make the communication of which the pursuer complained. A person might be privileged to make a statement, but might not be entitled to make the particular statement in question. The defender had gone beyond the region of legitimate criticism, and had attacked the domestic character of the pursuer. He had lost, therefore, any privilege which he might have had. Assuming, however, that the occasion was privileged, the degree of privilege was so qualified that it was sufficient for the pursuer merely to aver that the statement was circulated maliciously. It was not necessary to aver facts and circumstances relevant to infer malice. The defender was bound to have regard to the rights of the pursuer, whatever was his duty to the committee; and disregard of these rights was in law malice. Malice in this sense was not mere illwill or personal spite. Malice could be inferred intrinsically from the extravagance of the language used; and extrinsically (1) from the defender's failure to communicate the allegations to the pursuer when communication was an easy matter, (2) from his failure to make further inquiry before putting Mr Beveridge's letter into circulation, as he ought to have done in view of the pursuer's testimonials, (3) from the reckless manner in which the defender had circulated that letter, and (4) from his refusal to withdraw the statements made and apologise, and from his insistence on the plea of veritas. A plea of veritas, it was true, was not conclusive evidence of malice, but it was an element to be taken into account when considering whether or not there was malice. The fact that veritas was pleaded entitled the pursuer to have the case tried before a jury. The attitude of the defender was to assert the truth of all the charges made, and at the same time, by pleading privilege, to deny to the pursuer the opportunity of proving that the statements were untrue. To allow the case to go to trial before a jury would not prejudice the defender, and would do justice to the pursuer.
Argued for the defender (respondent);—The occasion was privileged. The defender had not only a public and private duty to circulate Mr Beveridge's statement; he had also, apart from duty, a right to do so. Assuming that there was privilege, the pursuer had not made relevant averments of malice. The tendency of the decisions had been to extend the doctrine of privilege, and to lay upon the pursuer a heavier onus of proving malice. Formerly a bare averment of malice was sufficient. An averment of facts and circumstances relevant to infer malice was first required in the case of Ingram v. Russell . In Macdonald v. M'Coll a complete change had been made in the law of privilege, which reached its furthest extension in the case of Cochrane v. Young . In the present case the onus on the pursuer was heavy. The degree of privilege was high in respect that (1) the pursuer was trying to collect a large sum of money; (2) the amount of influential information put forward by the pursuer made it likely that large sums would be raised; (3) inquiry with regard to the Gold Coast was difficult, and would take time; (4) the matter was urgent, as the pursuer was obtaining subscriptions; (5) the seriousness of the charges adduced by Mr Beveridge made it the more urgent that the defender should act quickly; and (6) the defender in his covering-letter to the committee emphasised his sense of the public duty which lay upon him. The sufficiency of the pursuer's averments must be judged from the case on record. The pursuer had made no averment that the defender did not believe Mr Beveridge's statements, and such an averment was necessary. It was quite clear that disparaging remarks might be made upon a privileged occasion, but it was not possible to raise out of the very facts which constituted the privilege an argument that the privileged occasion had been used dishonestly and unfairly. Where it was sought to infer malice from a reckless use of language, a specific averment of wrong motive was required. As far as the pursuer's pleadings showed, it might fairly be presumed that the defender had acted in bona fide. The pursuer ought expressly to have rebutted such a presumption by averring that the defender was actuated by an improper motive. Malice could not be inferred from a failure to make further inquiry. It was for the committee, not for the defender, to make any necessary inquiries. Communication of the charges to the pursuer would not have helped matters. The case of A B v. X Y illustrated that. The other cases cited by the pursuer upon this point did not apply. It would not do to found upon the extravagance of the language used in Mr Beveridge's letter. The defender's own language was temperate in tone, as could be seen from his covering-letter. The real question was whether, having regard to the circumstances, the statements were so violent as to afford evidence that they could not have been fairly and honestly made. Judged by that test the defender could not be held to have acted maliciously. The case of Gall v. Slessor was distinguishable from the present. In that case the letter in question had been written by the defender himself, and contained slanderous statements which were averred to have been written after due deliberation. Denholm v. Thomson (1880) 8 R 31 could not now be considered sound, in view of Lyal v. Henderson . It was for the Court to consider whether, if the pursuer's averments were established, a jury would be entitled to bring in a verdict in his favour. The plea of veritas alone did not presume malice. Nor did the refusal to apologise. They were rather proof that the defender honestly believed in the truth of the statements. But, even if other circumstances suggesting malice had been averred, the plea of veritas could not at this stage be used to infer malice. The case of Simpson could not be used to support the pursuer's contention as to the effect of the plea, in view of the much later decision in Caulfield v. Whitworth .
At advising on 17th June 1927,—
The pursuer avers that he exhibited to the defender a variety of documents which vouched his personal character and the bona fides of the work in which he was engaged. The defender informed the pursuer that, before giving him a contribution, he (the defender) proposed to communicate with a missionary friend on the Gold Coast. On 25th March 1925 the pursuer avers that the defender wrote and circulated to each member of the Scottish committee, which had been formed to promote the pursuer's appeal, and also to its secretary, a letter in the following terms:—[His Lordship then quoted the terms of the letter].
The pursuer avers that the statements for which the defender made himself responsible are slanderous, and he claims £5000 from the defender in respect of them. The pursuer also avers that the statements of which he complains were made by the defender maliciously. The latter pleads that the occasion on which he communicated with the members and secretary of the committee was privileged, and that he acted without malice. He further avers that the statements regarding the pursuer, which are contained in Mr Beveridge's letter, and which he (the defender) passed on to the members of committee, are true in fact. The Lord Ordinary has sustained a plea by the defender to the relevancy of the pursuer's action, and has dismissed it. Against that interlocutor the pursuer has reclaimed.
Two questions arise for decision (1) whether the occasion on which the defender acted was a privileged one, and (2) whether, if it was, the pursuer has relevantly averred facts and circumstances from which malice on the part of the defender may be inferred.
(1) That the occasion was a privileged one I entertain no doubt at all. Indeed, the pursuer's counsel, while declining to give up their contention that the occasion was not privileged, argued but faintly against the view that it was. Apart from the fact that one of your Lordships takes another view, I should have thought it plain that the defender had a right, if not indeed a duty, on the occasion in question, to communicate with the committee. Whether the defender communicated at the proper time and in a proper manner with the committee is another matter, which remains for consideration under the second head. But that the defender had an interest to make a communication to the committee, and that the committee had an interest to receive it, is, to my mind, clear. Had the defender remained silent, then, assuming that he believed Mr Beveridge's statements, as he says he did—and the pursuer, be it noted, says nothing to the contrary—he would have made himself and the committee participators in a fraud upon the public.
What was the situation ? The defender was aware that the pursuer had enlisted a committee to aid him in securing money from the public for his enterprises in West Africa. In point of fact, the defender had himself been approached by the pursuer. for a contribution to these objects. And then, cutting athwart the pursuer's financial schemes, the defender learned from a friend—on whose word it is not averred that per se he was not entitled to rely—that the pursuer, so far from being a philanthropist and a Christian, was a swindler and a charlatan. In these circumstances, it was, in my opinion, not only the right, but the duty, of the recipient of such information, as a good citizen, to pass it on, at an appropriate time and in an appropriate manner, for consideration to the body of men who had, as he thought, been hoodwinked by the pursuer. In other words, the pursuer's averments disclose a privileged occasion.
(2) The question of malice I have found to be much more difficult. That the defender was not animated by malice against the pursuer in the popular sense is, I think, obvious, if not indeed admitted. Their first and only interview appears to have been an entirely harmonious one; they were previously unacquainted; and to suggest that, in anything which the defender did or wrote, he was actuated by spite or illwill against the pursuer seems, on the face of it, to be extravagant. There is no suggestion of an oblique motive on the part of the defender in taking the course which he did. But that does not end the matter. Malice in a legal sense and malice in a popular sense have different significances. The absence of illwill does not necessarily infer the absence of malice. For example, there can be no doubt that malice in law against a pursuer may be inferred from recklessness of statement on the part of a defender regarding him.
Bearing that distinction in mind, I pass to consider the averments of malice made by the pursuer. They are to be found in condescendence 16. I did not understand the pursuer's counsel to dispute that, assuming the occasion to have been privileged, a bare averment of malice will not do, or that, in order to make his action relevant, it is incumbent on him to aver facts and circumstances from which malice may be inferred. The question is, Has he done so?
Before considering in detail what the pursuer has averred, it is important to observe what he has not averred.. He has not averred that the defender made the statements complained of in the knowledge that they were untrue. Such an averment has always been regarded, and, I think, properly regarded, as a good averment of malice. Indeed, it is difficult to imagine better proof of malice than the promulgation of an injurious statement in the knowledge of its falsity. But there is, as I have said, no such averment made in this case. The defender says that he accepted Mr Beveridge's statements as true, and the averments of the pursuer are consistent with that view. The pursuer does not aver that Mr Beveridge was an unreliable person, or that the defender—apart from the fact that Mr Beveridge's statements conflicted with other statements already before the defender—had any reason so to regard him. It is consistent with the pursuer's averments that the defender, apart from the qualification to which I have adverted, had no reason to doubt what Mr Beveridge reported to him. In other words, the averments of the pursuer seem to me to be consistent with the view that the defender acted in bona fide, and from a sense of duty. This appears to me to go to the root of the case. If there is a relevant averment of malice made by the pursuer, it must be sought for and found in another region than that to which I have referred.
Let us see then what the pursuer does aver. He states that the defender had read the testimonials submitted to him by the pursuer; that he (the defender) made no inquiry which would justify him in acting as he did; that he had no ground for making charges against the pursuer; that, without communicating with the pursuer, as he should have done, he circulated Mr Beveridge's letter to the committee; that he had no reason or call for doing so; that Mr Beveridge's letter contained no facts which justified his charges against the pursuer; that the defender should have asked for evidence of them, and also for Mr Beveridge's permission to publish his letter; that the defender made no attempt to ascertain from a reliable source whether or not the charges made by Mr Beveridge were true; that he was animated by a desire to injure the pursuer; and that he recklessly broadcasted the charges referred to.
The pursuer's argument on these averments, as I understood it, was that the defender was not justified in passing on the letter which he received from Mr Beveridge without further inquiry. The pursuer argued that the defender had before him, ere he received Mr Beveridge's letter, a large volume of testimony from the Gold Coast, from America, and elsewhere, which vouched for the pursuer's probity and honour. He argued that, before blasting the pursuer's reputation, the defender—instead of condemning the pursuer unheard, on the ipse dixit of one person who in his letter set out no facts and circumstances which justified the conclusions which he reached and retailed regarding the pursuer—should first have communicated with the pursuer himself, and should also have communicated again with Mr Beveridge.
Now, I must own that, at the debate, that argument profoundly impressed my mind. Indeed, its effect and force are not dissipated even now. But I have come to the conclusion—though not, I confess, without difficulty—that the pursuer has failed to aver facts and circumstances from which malice on the part of the defender can be inferred. In my judgment, the defender would have acted more prudently had he sent for the pursuer and laid the contents of Mr Beveridge's letter before him for comment, before circulating it. In all probability the pursuer would have informed the defender that the charges made were false, and might have done so with such convincing force that the defender would have refrained, at any rate without further inquiry, from promulgating the terms of Mr Beveridge's letter. Again, the defender, in my judgment, would have acted more wisely had he written to Mr Beveridge stating that the contents of his letter were disconform to responsible information which was before him (the defender) regarding the pursuer, and inviting Mr Beveridge to give concrete instances vouching the charges which he had made. But, assuming that criticism to be well founded, it does not appear to me that it saves the pursuer's case from irrelevancy. The criticism involves, it may be, that the defender acted hastily, negligently, without that sound judgment which prudence would dictate. But that, I think, is not enough. So to act, provided that action was taken in bona fide—and there is nothing to displace that view—does not connote malice. The pursuer's argument must be, not that the defender acted without inquiry —for he did inquire of Mr Beveridge—but that he acted on insufficient inquiry. I am unaware of any case in which the mere inadequacy of inquiry made by a defender has been held sufficient to give rise to an inference of malice on his part. In short, I am of opinion that the pursuer's averments fall short of what the law requires in order that malice may be inferred.
Something was said by the pursuer's counsel regarding the strength of the language employed regarding the pursuer. But it should be remembered that the language was that of Mr Beveridge, not that of the defender. And, while it is of course true that the disseminator of a slander is equally liable with its originator, nevertheless it is not, I think, without significance, from the angle from which I am now considering the case, that the defender passed on what Mr Beveridge wrote without addition, alteration, or commentary of his own. As regards any inference to be drawn from the implication which the defender's letter yields to the effect that he withheld a subscription which he contemplated giving to the pursuer, I should have thought the inference would merely be that the defender accepted Mr Beveridge's statement, and acted upon it in bona fide. Something was also said on behalf of the pursuer regarding the reference to the pursuer's wife which Mr Beveridge's letter contains and which was described as both irrelevant and injurious. I think the reference is of small, if any, importance. I do not regard it as involving a separate and independent attack on the pursuer's character. It merely narrates the historical sequel to the conduct of which Mr Beveridge had already accused the pursuer.
When to what I have already said it is added that the defender wrote the letter complained of, not hot-foot but after due consideration, that he marked it “private and confidential,” that he named his informant, and that he frankly avowed that he had no express authority from Mr Beveridge to publish his letter, then I think it is clear that the worst that can fairly be said of the defender is that, in what he wrote and transmitted, he formed a mistaken view regarding the pursuer, and that he committed an error of judgment. But an error of judgment has never, so far as I know, been held to be tantamount to malice in the legal sense. As Lord Buckmaster said in Lyal v. Henderson, “To submit the language used on privileged occasions to a strict scrutiny, and to hold all excess beyond the actual exigencies of the occasion to be evidence of express malice, would greatly limit, if not altogether defeat, the protection which the law gives to statements so made.” All that being so, I think that the pursuer's case fails.
I confess that, assuming the innocence of the pursuer, as I am bound to do, the result of a decision on the lines which I have indicated seems, from the point of view of the pursuer, unfortunate. It is all the more unfortunate seeing that the defender has elected to plead veritas. That plea clearly cannot at this stage be held to afford evidence of malice on the part of the defender. Indeed, so far from evidencing malice on his part, it rather evidences his bona fides. Had the defender not pleaded veritas, had he withdrawn and apologised for the charges which he had made, he would have laid himself open to the suggestion that he stood self-confessed of recklessness. But the defender has not taken that course. He proposes to justify his conduct. In the result, however, the pursuer,
if the views which I have expressed are sound, is, assuming his innocence, left without remedy, in the country in which he has been slandered, against the man who made the slander public, although the charges made are peculiarly odious and indeed fatal to a person occupying the position of the pursuer. Incidentally, I may say that, in my judgment, an action by the pursuer against Mr Beveridge, in an African Court, the decision of which might produce, at the best, but a faint echo in this country, in a land where the slander had not been circulated, would provide a wholly inadequate remedy to the pursuer, if he be an innocent man. I apprehend, however, that such considerations, while they no doubt entail and require the most anxious scrutiny of the pursuer's averments of malice before negativing their relevancy, cannot properly be regarded as a surrogatum for such averments. In the pursuer's averments, after repeated and careful consideration, I am unable to find facts and circumstances set forth from which malice on the part of the defender may be inferred. That being so, I feel constrained to hold that the Lord Ordinary has reached a right conclusion, and that the pursuer's action has properly been dismissed by him as irrelevant. I therefore move your Lordships to affirm the Lord Ordinary's interlocutor.
The defender further maintains that the pursuer's record discloses no averments of facts and circumstances from which a jury would be entitled to infer that the defender was not acting in the discharge of any duty imposed upon him, but was actuated solely by malice. This contention is also, in my opinion, well founded. I approach its consideration having in view that the pursuer does not aver anything in the antecedent relations between him and the defender indicative of spite or personal illwill—anything to suggest that he could be or was actuated by an oblique motive. Their interview was perfectly friendly and harmonious, and the attitude of the defender was sympathetic. It was maintained, however, that as the defender was well aware of the many genuine tributes to the pursuer's life and work (testimony which the pursuer describes as absolutely unimpeachable) he should not have accepted and acted on the statements in the letter without further inquiry. But the defender had already made inquiry from a reliable source. This he did after giving notice to the pursuer of his intention to do so, and no exception was taken at the time by the pursuer. No other or better means of inquiry were open to him. The committee was formed with the entire approval of the pursuer, and the defender was justified, it seems to me, in leaving it for them to determine whether any further investigation was called for. That he elected to act on Mr Beveridge's letter affords no warrant for inferring malice. It was further suggested that the defender should have communicated with the pursuer before passing on his information. It was not said what good purpose could have been served by his so doing, and I can conceive of none. And I cannot think that any malice can be inferred from the fact that the defender passed on Mr Beveridge's letter without first obtaining the writer's consent and authority. Money was already being collected on a representation which was directly countered by the information in the defender's hands. There was a certain degree of urgency, therefore, and it was reasonable to pass it on to the committee quam primum. To my mind, the course followed by the defender, so far from instructing the existence of malice towards the pursuer, demonstrates the defender's sincerity and honesty of purpose.
Again, though the language used by Mr Beveridge was emphatic and,, it may be, extreme or excessive, that consideration of itself can afford no evidence of malice on the part of the defender. It is not his language. He does not adopt it as his own. He passes the letter on just as he received it. His covering letter, on the other hand, is expressed in terms that are temperate; and, by marking his communication as private and confidential, he evinces a desire to impress on the recipients the gravity of the question raised by it. In my opinion, everything that the defender said and did, as averred by the pursuer, is entirely consistent with bona fides and with a total absence of malice in any sense of that term. The mere fact that he has placed on record a plea of veritas has no relevant bearing on the question of malice.
I accordingly agree that the reclaiming note should be refused.
Of the defamatory nature of the communication made by Mr Beveridge about the pursuer there can be no question. The expression is crude, and there is an absence of that reference to specific facts which one would have expected in support of the charges made. I do not think that the pursuer exaggerates when he says that the charges include dishonesty practised under the cloak of religion, blackguardism, and breaking of his wife's heart. If they were well founded, the pursuer was liable to have criminal proceedings instituted against him. If they were false, as the pursuer alleges they were, it is not surprising that he should desire an opportunity of disproving them in Scotland where they had been circulated. Apparently the only method of so clearing his character in Scotland was by raising an action of slander against the defender, who was responsible for the dissemination of the defamatory statements in that country.
In defence to the action raised against him, the defender contends that the communication was published on a privileged occasion, and that no relevant statement of facts from which a jury might find that he had acted maliciously has been averred. He therefore pleads that the action should be dismissed. The Lord Ordinary has given effect to this plea. It may be noted that the defender does not merely rest upon his plea of privilege. He alleges that the statements complained of are true in substance and in fact. In support of his plea of veritas he makes a number of allegations in answer 15 reflecting upon the pursuer's honesty, which are denied by the pursuer. He also makes allegations about the pursuer's treatment of his wife, for which it is said there is no foundation.
It is well settled that the question whether a defamatory statement has been published on a privileged occasion is for the judge and not for the jury. If the occasion is privileged, it is for the jury to say whether, in making the communication, the defender was actuated by malice. Before, however, the case reaches the jury, the judge who presides must be satisfied that facts have been proved from which an inference of malice may be drawn. In many, though perhaps not in all, cases of admitted privilege, the Court which approves of the issue must be satisfied that facts have been set forth from which an inference of express malice may be drawn.
Although it is for the judge to decide whether an occasion is privileged, it is not always possible for him to come to a conclusion upon averments. He may have to know the facts, for, if he is to determine without inquiry, he must be satisfied, on the pursuer's averments alone, that the occasion is privileged. In the case of Adam v. Ward  AC 309
Lord Dunedin said (at page 328): “The duty of deciding whether the occasion is privileged is cast upon the judge alone, and the jury has no hand in it. The criterion as to whether the occasion is privileged or not is most tersely stated in the well-known passages of Parke, B.'s, judgment in Toogood v. Spyring : ‘… fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned,’ and again: ‘If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits.’ And the judge must put the question suggested by that definition to himself. If the statement is, so to speak, divisible into parts, it may be that the judge may come to the conclusion that certain parts are not truly referable to the particular right or duty which in the case in hand is the foundation of the privilege. If so, he will so find—that is to say, he will find that paragraph 1 is referable and appropriate to a privileged occasion, paragraph 2 is not so. Then, if paragraph 2 contains defamatory words, malice will be implied as to them. If, however, he finds that both paragraphs are referable and appropriate to the privileged occasion, then, as it is more commonly but less accurately expressed, he finds that the privilege extends to the whole statement.” In the same case the Lord Chancellor (Lord Finlay) said (at p. 318): “It is for the judge, and the judge alone, to determine as a matter of law whether the occasion is privileged, unless the circumstances attending it are in dispute, in which case the facts necessary to raise the question of law should be found by the jury.”
Applying the principles thus laid down by the learned judges in the House of Lords to the averments made by the pursuer, I ask myself whether I can say, without any inquiry into the facts, that the defender was privileged in making the communication which he did make. I find myself unable to answer this question in the way in which the Lord Ordinary has done, although I recognise that a case of privilege may be established at the trial. It has, however, to be kept in view that the defender was not a member of the committee to whom he made the defamatory communication, and had not been entrusted by them with the duty of making inquiry. He volunteered the statements. These circumstances may not be conclusive against the occasion being privileged. I do not think that they necessarily are. As the Lord Chancellor (Lord Buckmaster) said in the case of London Association for Protection of Trade v. Greenlands, Limited : “Indeed, the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact. New arrangements of business, even new habits of life, may create unexpected combinations of circumstances which, though they differ from well-known instances of privileged occasion, may none the less fall well within the plain yet flexible language of the definition to which I have referred.” The definition to which Lord Buckmaster refers is that given by Parke,
B., in Toogood v. Spyring, which is embodied in the opinion of Lord Dunedin in Adam v. Ward, already quoted.
The fact that the defender was asked for a subscription could hardly be said to make any communication reaching the defender's ears, and passed on by him to those who had apparently vouched for the character and good faith of the pursuer, protected as being published on a privileged occasion. Could it be said that he had fairly made the communication, unless he had some reasonable ground for belief in its truth? Can the existence of such reasonable ground of belief be affirmed without some knowledge of who Mr Beveridge is, and why such an attack as he made upon the pursuer's character should be accepted by the defender as in itself proof of the truth of the charges?
On the assumption that the case falls to be treated as within the category of protected communications where the inference of malice cannot be drawn from the mere fact of the words being defamatory, I do not think it would be safe at this stage to affirm that a jury, even although all the pursuer's averments were established to their satisfaction, would not be entitled to affirm express malice against the defender. A number of cases were cited to us in which the Court held actions of slander irrelevant where the slander had been uttered by the defender in discharge of some public duty, and no facts or circumstances were averred from which it could be inferred by a jury that the defender had been actuated by malice. Each case must depend upon its own averments, and the strength or weakness of the averments of malice may depend upon the nature of the privileged occasion. It has been said that the evidence of malice may be intrinsic or extrinsic. As regards the first of these categories, Lord Dunedin, in the case of Adam v. Ward, refers to defamatory words from their nature alone affording evidence of express malice. He then points out that, if the judge considers the words so capable, he must leave it to the jury to say whether, from the words alone, or in conjunction with extrinsic evidence, if there be any such, express malice has been proved. The Lord Ordinary holds that, in the present case, there is no room for maintaining that there is any intrinsic evidence of malice, because the defender merely passed on a communication which he had received. I do not think that this is necessarily so, if the pursuer succeeds in satisfying the jury that the defender was in possession of such information about the pursuer as they might think made communication of grave charges without further inquiry an act so regardless of the pursuer's interest as to justify them in affirming express malice. On the whole matter, in my opinion, the reclaiming note should be sustained, and the case remitted to the Lord Ordinary to adjust issues.
in my own words, the reasons which have led me to the conclusion that the judgment of the Lord Ordinary is well founded.
The case was represented as being of great importance to the parties. It is undoubtedly vital to the pursuer to disprove, if he can, the charges which have been made against him. It appears to me, however, that the pursuer's conduct would be much more satisfactorily investigated by a responsible individual or committee at the Gold Coast than by leading evidence before a Scottish jury as to what had taken place there. The case is manifestly of importance to the defender, who has discharged what he must have regarded as a painful duty in exposing conduct believed by him to have been fraudulent. The contentions of the pursuer, moreover, give the case an importance which extends beyond the individual interests concerned, and raise questions of general moment in the law of slander. The basis of the law as to privilege is that it is in the public interest that an individual who, on reasonable grounds and from a sense of duty, makes a prejudicial statement as to another, should not be deterred from doing so by the fear of an action of damages, and it is mainly because I think that the contentions advanced on behalf of the pursuer impinge upon that salutary principle that I support the Lord Ordinary's judgment.
I am clearly of opinion that the occasion on which the defender wrote the letter complained of was privileged. When the defender was invited by the pursuer to subscribe to his schemes, the defender was plainly entitled, before subscribing, to make inquiries as to the bona fides of these schemes, and as to the professional and personal character of the pursuer as clergyman and educationalist. In making inquiries as to these matters from a responsible individual on the spot, whom he knew and in whom he had confidence, the defender accordingly did what, as a potential subscriber, he had an interest and a right to do. Having got Mr Beveridge's report, what was the defender to do with it ? It was not suggested, during the debate, that he should destroy or suppress it. To my mind, the absence of any such suggestion on the part of the pursuer's counsel seems to concede the point of privilege. As I understood the argument submitted for the pursuer, the existence of privilege was not seriously challenged, but the suggestion was that the defender should have paused and done certain things before discharging his duty of disclosure. I have reached the conclusion that the defender had not only an interest to communicate the report of Mr Beveridge to the committee who had an interest to receive it, but that he had a duty to make the communication, and that in doing so he occupied a position of privilege. It was maintained that, because the defender, not being a member of the committee, acted as a volunteer in making the communication, he could not successfully plead privilege, or, at all events, that his privileged position was weakened. I am unable to agree with this contention. In my opinion, the privilege of the defender, in making the communication, was just as high as if he had been a member of the committee. He was actuated by the same motive which would have moved a member of committee to make the communication, namely, a sense of public duty. In either case the actuating motive ought to be held to be, as Lord Blackburn put it in
Davis v. Snead, that the person communicating thought in bonafide that it was in “the interests of society” that the communication should be made. It is of course essential that the party pleading privilege should have had reasonable grounds for making the communication, and the averments disclose that the defender was warranted in concluding that he had this justification for what he did. The letter of Mr Beveridge not only expressed the views of the writer, but purported to embody the opinions of three other responsible individuals.
On the first point in the case, accordingly, I have no difficulty in holding that the defender's duty, when he received Mr Beveridge's report, was to communicate it to the committee, and that, in so doing, he enjoyed a high state of privilege.
The other point debated was whether the pursuer has relevantly averred malice. Since the case of Macdonald it has been recognised that, in privileged cases, malice can only be relevantly averred by a condescendence of facts and circumstances from which it may be inferred. A bald averment of malice is not enough. In the present case it is not unimportant to note that malice, in the ordinary or popular sense of the term, as connoting personal animus or illwill, is not averred or suggested. This circumstance, in my view, makes the pursuer's task, in relevantly averring malice, all the more difficult, for, while mere recklessness of conduct or of statement may indicate malicious motive, that recklessness, where there is no allegation of personal illwill, must, in my opinion, be serious and, indeed, gross. The observations of the judges in the case of Lyal v. Henderson make it plain that neither the language nor the conduct of a person speaking or writing on a privileged occasion is to be weighed in nice scales. In other words, malice is not to be presumed because, on a privileged occasion, an ordinary man did not speak or act like a superman. Much reliance was placed by both parties on the case of Cochrane v. Young . To my mind, the averments of malice made in that case are far stronger than those in the present case. On the topic now under consideration, I regard this case as a fortiori of the case of Cochrane.
I now proceed to consider the points taken by the pursuer's counsel as being suggestive of malice. The pursuer founded on intrinsic and extrinsic circumstances as indicating malice on the part of the defender.
The circumstances said to be intrinsic consist (a) in the intemperate character of the language used in the report, and (b) in the reference to the pursuer's wife with which the report concludes. As to (a), the intemperate language complained of is not the defender's, but that of Mr Beveridge. Now, while A is doubtless responsible for the dissemination of a defamatory statement made by B, I am not prepared to hold that the intemperance of the statement of B is to be used as a determinant of the malice of A. The defender's covering letter is phrased temperately and cautiously, and there is nothing in it to show that the defender adopted the extreme language used by Mr Beveridge. As to (b), I consider the reference to the pursuer's wife quite pertinent and relevant. The suggestion of the letter is that the pursuer's conduct broke his wife's heart. This allegation of misconduct or improper marital treatment of his wife on the part of the pursuer was a circumstance to be taken into account by the committee in reference to an appeal for funds by one who was appealing as a clergyman and an educational superintendent. On this part of the case, it was suggested that the defender should have sent to the committee a paraphrase or expurgated edition of Mr Beveridge's letter so as to modify its extreme phraseology. I do not agree. It was, in my opinion, the defender's duty to forward the ipsissima verba of a report of so damning a character.
The extrinsic circumstances which were said to suggest malice on the part of the defender were these:—(1) It was said that he should have communicated with the pursuer before forwarding the report. That would obviously have been a futile proceeding, and would have left matters just where they were when he received the report. The pursuer, judging by his averments in the action, would have denied the charges. Had he done so, what was the defender to do? Plainly, I think, what he actually did, to wit, to send the report to the committee for their consideration. The defender was entitled to assume that any reference of the charges to the pursuer would involve a loss of precious time. (2) It was next maintained that the defender should have himself made some inquiry. Consider, it was said, the character and number of the pursuer's references—from President Coolidge down to a host of less celebrated but quite worthy men. Ought not these testimonials to have induced the defender to hold his hand and set himself to make inquiries as to the truth of Mr Beveridge's allegations? But the defender had made what he regarded as sufficient inquiry, and had obtained information which he considered important and reliable. Any further inquiry surely fell to made by the committee. If the defender had set himself to make further inquiry in Africa, he would have left the pursuer free to collect public money in this country on representations and for purposes which the defender had reason to believe were fraudulent. I have no hesitation in holding that the defender's duty was to act at once, and so prevent the pursuer from collecting a single additional penny of public money. (3) It was suggested that the defender, before sending Mr Beveridge's letter to the committee, should have obtained the authority of Mr Beveridge to do so. The unauthorised use of the letter made by the defender is a matter with which he and Mr Beveridge are alone concerned, and I am unable to hold that this is a circumstance inferring malice on the defender's part. The defender frankly states in his covering letter that the report of Mr Beveridge is being used without his authority. (4) Lastly, the averments and plea of veritas made by the defender were said to be suggestive of malice. I am unable to agree with this contention. The Lord Ordinary has rightly disposed of this point by assuming that the plea has been put forward in good faith by the defender, and in the fair exercise of his rights as a litigant. Its presence on record is insufficient to warrant the inference of malice.
I am satisfied that the conduct of the defender throughout has not been dictated by malice, but by a sense of public duty. The pursuer's averments show that it was this spring of action and not any malicious or oblique motive which urged the defender to forward to the committee the letter of Mr Beveridge.
I am therefore for adhering to the interlocutor of the Lord Ordinary.
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