Barr v Musselburgh Merchants Association
| Jurisdiction | Scotland |
| Judgment Date | 24 November 1911 |
| Date | 24 November 1911 |
| Docket Number | No. 28. |
| Court | Court of Session |
Lord Dundas, Lord Salvesen, Lord Justice-Clerk.
ReparationSlanderTrade slanderRepresentation that person is unworthy of commercial creditPrivilegeMaliceTrade Protection Society.
A local association of traders issued to its members a list of the names and addresses of certain persons in the district. The list bore no title and contained no comment on the persons whose names were included; but it was admittedly compiled from the black lists. A person whose name appeared in the list brought an action of damages for slander against the association, in which he averred that the list was known in the district as the black list, and that the defenders by inserting his name in it had represented that he was unworthy of business credit.
The Court held (1) that the publication of the pursuer's name in the list was defamatory; but (2) that the defenders were privileged in issuing the list; and, as facts inferring malice were not averred, dismissed the action.
Macintosh v. DunELR, [1908] A. C. 390, considered.
John Barr, china-merchant, Musselburgh, brought an action of damages for slander in the Sheriff Court at Edinburgh against the Musselburgh Merchants Association and certain individuals,members of committee, and as such office-bearers representing the said Association.
The material averments on record were as follows (the passages italicised being added by amendment at the hearing before the Inner House):(Cond. 2) The defenders' Association has for a considerable number of years annually printed, published, and circulated, or caused to be printed, published, and circulated, to and among the traders in Musselburgh and district a list of names and addresses of persons in Musselburgh and district. The said list is prepared and published by the defenders for the purpose of setting forth the names of persons who are unworthy of business credit, and whom it would be unsafe for traders to deal with. It is understood by the members of the Association that the list is composed of the names of persons who are unworthy of business credit, and with whom it would be unsafe to deal. The list is known and referred to as the Black List. In particular, the said defenders on or about the year 1909 printed, published, and circulated, or caused to be so printed, published, and circulated, among said traders a list of such names and addresses, and in each of said lists the defenders wrongfully and maliciously and without probable cause included the name and address of the pursuer, and published and circulated said lists with pursuer's name included therein. By so including the name and address of the pursuer in their said list for the said year before mentioned, and publishing and circulating the same as aforesaid, the defenders have repeatedly and persistently, falsely and maliciously, and without probable cause, represented to the traders and business community of Musselburgh and district that pursuer is a person who will not or does not pay his debts, that he is absolutely unworthy of business credit, that he is unsafe or untrustworthy in his dealings, and that all transactions with him should be for cash payments, and not left to be dealt with according to the usual course of trade. Further, by wrongfully and maliciously including pursuer's name in said list, the defenders intended to represent, as they falsely and maliciously did represent, to the traders and business community of Musselburgh and district that the pursuer is untrustworthy and a person with whom it is not wise to do business upon the ordinary terms of credit; that the trading community required to be frequently warned against him; and that the pursuer was a person whose financial position was so bad as to render it unsafe for traders to have business relations with him. The said representations so made by the defenders of and concerning the pursuer were false and calumnious and unfounded in fact. They were made maliciously and recklessly by the defenders, who could, had they taken the trouble to inquire, have discovered they were groundless. The defenders' statements, as far as not coinciding with those of the pursuer, are denied. With reference to the case in Court on 15th March 1905, defender failed to attend Court, but paid immediately after. The pursuer did not know that he had incurred any liability, his wife having, unknown to him, signed his name to a cautionary obligation. With reference to the case in 1908, there was a bona fide contest and decree given after proof, and this appeared in Stubbs' list. The pursuer paid the sum. (Ans. 2) Denied. The defenders' Association have issued to their own members only two lists containing the names and addresses of persons resident in the locality whose names have appeared in the various publications issued in Scotland and known as black lists. The first of the said two lists was issued by the defenders' Association in the year 1908, and the other in 1909. Pursuer's name was included in the second of said two lists for the following reasons. Pursuers' name had appeared on two occasions in the said black lists, once in March 1905 in respect of a decree against him for 6 obtained in Edinburgh Small-Debt Court on 15th March 1905, and once in July 1908 in respect of a decree for 14 obtained in Edinburgh Small-Debt Court on 16th July 1908. Said decree for 14 was pronounced in an action at the instance of a Musselburgh man. After the last-mentioned decree was pronounced the pursuer refused to pay the sums decerned for, and the holder of the decree proceeded to poind the effects in pursuer's premises. The pursuer alleged that he was possessed of no means, and that everything on his premises belonged to his wife. The poinded goods were advertised in the local newspapers to be sold by warrant of the Sheriff under the said decree and poinding before the present pursuer paid the amount decerned for against him. These proceedings against the present pursuer and advertisements were well known among the trading community of Musselburgh. One of the purposes of the defenders' Association is to inform its members of the names and addresses of persons in the locality against whom small-debt decrees have been pronounced, and in consequence of the foresaid proceedings against the present pursuer the defenders' Association were justified in including his name in the said list of names issued by them to their members. The said list was for private circulation only, and was not issued to any person not a member of the defenders' Association. (Cond. 3) During the years 1905, 1906, and 1907 the defenders marked, or caused to be marked, in the Musselburgh Directory of these years the names of such persons in Musselburgh and district who they represented were unworthy of business credit, and with whom it would be unsafe for traders to deal, and in the Musselburgh Directory of each of the said years the defenders wrongfully, maliciously, and without probable cause marked, or caused to be marked, the name and address of pursuer as a person unworthy of business credit, and published, or caused to be published, Musselburgh Directories with pursuer's name so marked. It was known to all those who had cause to consult said Directories the reason of said marking. By so marking the name and address of pursuer in said Directories for each of the said years the defenders have repeatedly and persistently, falsely and maliciously, and...
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