Bayne & Thomson v Stubbs, Ltd
| Jurisdiction | Scotland |
| Judgment Date | 29 January 1901 |
| Date | 29 January 1901 |
| Docket Number | No. 65. |
| Court | Court of Session |
Lord Kincairney, Lord Trayner, Lord Moncreiff, Lord Justice-Clerk.
Reparation—Slander—Privilege—Malice—Trade Slander—Company for providing subscribers with confidential Information as to financial status of traders.—
In an action of damages for slander, the pursuers averred that shortly after they had placed an order with a manufacturer the defenders wrote to the manufacturer of and concerning them that ‘they do a fairly extensive trade, but the account, from various causes, is not regarded with much confidence in these markets, although in certain quarters they appear to be in receipt of moderate credit. The capital at command, however, is limited, and the payments of late have been slow and unsatisfactory, but their settlements for years have always been dilatory. At the same time, several of their shops are not thought to be paying, and it is feared that credit transactions meanwhile represent more than an average risk’; and that the defenders had failed to make adequate inquiry, which would have shewn that these statements were false.
It was admitted that the defenders were a company formed for the purpose, inter alia, of preventing their subscribers from making bad debts, by furnishing them with information as to the financial status of persons with whom they proposed to trade; that the manufacturer was a subscriber of the company; that the letter complained of was written in response to a request by the manufacturer for information as to the amount of credit which it would be safe for him to give the pursuers; and that the information was given on the condition that it was confidential, for the use of the subscriber only, and not to be divulged by him to any third party.
Held (1) (dub. Lord Trayner) that the case was relevant, and (2) that the defenders were privileged in writing as they did, and that malice must be put in the issue.
This was an action of damages for slander at the instance of Messrs Bayne & Thomson, grocers and confectioners, Renfrew Street, Glasgow, against Messrs Stubbs, Limited, Edinburgh.
The pursuers averred;—(Cond. 2) ‘About the middle of February 1900 the pursuers gave an order to Messrs Gatti Brothers, chocolate manufacturers, Acton Street, Haggerston, London, per their Glasgow agent, Mr James Thompson Dowling, for a half ton of chocolates at £74 per ton nett. One half of the order was to have been delivered immediately after the order was given, and the balance when required.’ (Cond. 3) ‘Immediately after the said order was given the defenders, in or about February or March 1900, wrote to Messrs Gatti, stating that the pursuers' account ‘from various causes is not regarded with much confidence in these markets, although in certain quarters they appear to be in receipt of moderate credit. The capital at command, however, is limited, and the payments of late have been slow and unsatisfactory, but their settlements for years have always been dilatory. At the same time, several of their shops are not though to be paying, and it is feared that credit transactions meanwhile represent more than an average risk.”’* (Cond. 4) ‘The said statements made by the defenders are of and concerning the pursuers, and are false. By the said statements the defenders represented that the pursuers were in financial difficulties, and were persons whose financial position was so bad as to render it unsafe for merchants and traders to have business relations with them. They were made by the defenders of and concerning the pursuers falsely, calumniously, and maliciously. If the defenders had made adequate inquiry they would have ascertained that the financial status of the pursuers was excellent. They, however, failed to make such inquiry. As a result of said statements being made, Messrs Gatti failed to deliver the first portion of the chocolate when required, and only made delivery thereof upon receiving an assurance from their said representative that the said statements regarding the pursuers were entirely untrue.”
The defenders, in reply, stated that the letter contained no libel, and averred (Ans. 3 and 4) ‘that the defenders are a company of merchants and others engaged in trade, formed for the purpose, inter alia, of promoting bona fide trading, and preventing their subscribers from making bad debts. The said Messrs Gatti, who are subscribers of the defenders, made inquiry regarding the pursuers' position in the spring of the present year, and the defenders, in the exercise of their lawful rights in the interests of their said subscribers, answered said inquiry, but the defenders' answer was marked “private and confidential”; and is a confidential document, and is regarded as such by Messrs Gatti.’
The defenders pleaded, inter alia;—(1) The pursuers' averments are irrelevant, and insufficient in law to support the conclusions of the summons. (2) The answer which the defenders made to Messrs Gatti's inquiry being confidential, and, separatim, being a privileged communication, the defenders ought to be assoilzied.
By interlocutor dated 13th November 1900, the Lord Ordinary (Kincairney) repelled the defenders' first and second pleas, and approved of the following issue:—‘(1) Whether on or about February or March 1900 the defenders wrote to Messrs Gatti stating that the pursuers' account [here followed the statement libelled in cond. 3], and whether the said statements are of and concerning the pursuers, and are false and...
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Barr v Musselburgh Merchants Association
...at p. 251. 3 Aitchison v. M'Donald, 1911 S. C. 174. 4 M'Laren v. RobertsonUNK, (1859) 21 D. 183. 5 Bayne & Thomson v. Stubbs, LimitedSC, 3 F. 408; Keith v. LanderSC, 8 F. 356; Jackson v. KempUNK, (1900) 7 S. L. T. 391; Waller v. LochELR, (1881) 7 Q. B. D. 619; Cooper on Defamation (2nd ed.)......