Brown v Magistrates of Edinburgh
| Jurisdiction | Scotland |
| Judgment Date | 20 December 1906 |
| Date | 20 December 1906 |
| Docket Number | No. 41. |
| Court | Court of Session |
Ld. Johnston, Lord M'Laren, Lord Kinnear, Lord Pearson.
Reparation—Master and Servant—Wrongous Dismissal—Contract of service—Burgh—Police—Dismissal of police officer—Liability of magistrates—Powers of Chief Constable—Dismissal at pleasure—Lawful act done with a bad motive—Malice—Edinburgh Improvement, &c., Act, 1893 (56 and 57 Vict. cap. cliv.), sec. 34 (1).—
An act which does not amount to legal injury cannot be actionable because it is done with a bad motive.
Edinburgh Municipal and Police Act, 1879 (42 and 43 Vict. cap. cxxxii.), sec. 55.—
The Edinburgh Municipal and Police Act, 1879, sec. 55, authorises the Chief Constable to appoint police-constables, ‘and also to suspend or remove such constables appointed by him at pleasure.’
A police officer, who had been dismissed from the Edinburgh Police Force by the Chief Constable, brought an action of damages for wrongous dismissal, directed against the Magistrates of the city and also against the Chief Constable. He alleged that the Chief Constable in dismissing him had been actuated by improper and malicious motives.
The Court held (1) (aff. judgment of Lord Johnston) that the pursuer had stated no relevant case to entitle him to an issue for wrongous dismissal (a) against the Magistrates, as they had no power to control the action of the Chief Constable in this matter; or (b) against the Chief Constable, as under the terms of the contract of service the pursuer was liable to dismissal at the Chief Constable's pleasure, and therefore had suffered no wrong in being so dismissed; and (2) (rev. judgment of Lord Johnston) that the pursuer was not entitled to an issue against the Chief Constable for wrongous and malicious dismissal, as the pursuer had suffered no wrong in being dismissed at pleasure, and therefore the averment that he had been dismissed from a malicious motive was irrelevant.
Commercial Bank v. Pollock's Trustees, June 12, 1829, 3 W. & S. 430, followed;Morrison v. Abernethy School BoardSC, July 3, 1876, 3 R. 945, distinguished;Allen v. FloodELR, L. R., [1898] A. C. 1, commented on.
Reparation—Slander.—
Words used by a Chief Constable in dismissing a police officer which held in the circumstances not to be slanderous.
David Brown, formerly a lieutenant of the Edinburgh City Police, brought an action, on 9th May 1906, directed against (first) the Lord Provost, Magistrates, and Town-Council of Edinburgh, and (second) Roderick Ross, the Chief Constable of the Edinburgh City Police, in which he sought for payment of £3000 from one or other of the defenders alternatively, or from both the defenders jointly and severally. The summons also contained a separate conclusion against the defender Roderick Ross for payment of £2000. The sum of £3000 was sued for as reparation for the alleged wrongous dismissal of the pursuer from the Edinburgh Police Force, and the sum of £2000 was sued for as reparation for alleged slanderous statements made by the Chief Constable concerning the pursuer.
With regard to the claim as directed against the Magistrates of Edinburgh, the pursuer averred;—The defenders the Lord Provost, Magistrates, and Council of Edinburgh, are the police authority of the said city, and as such administer the Police Acts therein, and employ and control the constables and officers of the police force, subject to the powers and regulations contained in the statutes there-anent. The defender Ross is the Chief Constable of Edinburgh and head of the Edinburgh City Police. The pursuer and the defender Ross were servants of the said other defenders, and paid by them subject to said statutes.’ The pursuer referred to the appointment of Ross as Chief Constable, and averred that the Magistrates had thereby, ‘subject to the said statutes, invested the defender Ross with the powers which as masters they possessed over their other servants, including the pursuer, and they are responsible for the manner in which he exercises said powers and the consequences thereof.’ The pursuer also referred to the various statutes regulating the appointment of the Chief Constable and members of the Edinburgh Police Force,* and averred that the delegation of the
Magistrates' authority ‘left their liability for the wrongful acts of the said Chief Constable within the scope of their employment unaffected and unimpaired.’
With regard to the circumstances of his dismissal from the police force the pursuer averred;—‘Certain rumours about the defender Ross' private and domestic affairs and character had been widely current in the police force and in the city of Edinburgh about four and two years ago, but the pursuer regarded them as idle gossip, and on one occasion a long time ago spoke of them as such to a man named G. W. Taylor when Taylor conversed with him. … It is believed and averred that the pursuer's dismissal was brought about by Taylor informing the defender Ross of the conversation he had had with the pursuer nearly a year before. It is further believed and averred that the defender Ross, who was quite aware of said rumours when they were prevalent, had asked Taylor to report to him the name of any constable who might repeat the said rumours to him, so that instead of vindicating his character in the usual way, he might wreak his private vengeance on persons under his control who might be detected discussing him or said rumours. When Taylor opened the conversation about said rumours Taylor had often heard the rumours and was familiar with them, and the pursuer did not communicate to him anything about the Chief Constable which he had not already heard.’
The pursuer further averred that on 19th March 1906 the defender Ross summoned him to his room, and informed him that it had come to his knowledge that the pursuer had, some months or years earlier, mentioned in conversation with Taylor a story which had been in circulation reflecting on Ross' moral character. That the pursuer denied that he had circulated any rumours against Ross, but admitted that in conversation with Taylor, who was an old friend of both parties, reference had been made to certain rumours as to Ross' character prevalent at the time. That thereupon Ross had used violent and abusive expressions towards him, and at a second interview on the following day had again used violent expressions, including the phrase ‘I will make you suffer for it.’‘He then proceeded to devise means whereby to make the pursuer suffer. By this time he had determined for his own private purposes and the gratification of his revengeful feelings to get the pursuer and all constables to whom he might be able to trace a repetition of said rumour out of the force, and he ordered the pursuer to attend upon the following day (21st March), at eleven o'clock, for a mock inquiry, in order to give the semblance of regularity to the malicious dismissal he had already resolved upon.’
The pursuer narrated the proceedings at the inquiry in Cond. 8, which was as follows:—‘Upon the said 21st of March the defender
Ross in his own room, constituted himself a species of tribunal, making himself both prosecutor and judge, the pursuer being the accused, in regard to said rumour about himself, but said proceedings had no relation to the police force or discipline therein. The pursuer attended this tribunal as ordered. The defender Ross read over a paper containing a charge of circulating false and slanderous statements about himself, and asked, “Are you guilty or not?” The pursuer said he had already explained the circumstances. The defender Ross interposed in an overbearing manner and said, “I'll see what you have got to say afterwards; are you guilty or not? You must be the one or the other.” The pursuer then pleaded not guilty. Witnesses were called in and examined by the defender Ross, who conducted the proceedings oppressively and with malice against the pursuer. Taylor was examined, and corroborated what the pursuer had said. Constable Strachan was called, and admitted telling the pursuer of the rumour, and for merely repeating it was then and there sentenced by the defender Ross to a reduction of 4s. weekly. Two other witnesses were examined by the defender Ross who precognosced such witnesses before he (so to speak) put them into the box and questioned them before himself. The defender Ross got gradually more and more malicious towards the pursuer, and after summing up the results of the investigation made by himself, he announced that the pursuer was guilty, and that he did not intend to put off long time with him, and proceeded to pronounce sentence. He said, “I find you guilty. You are a danger to me, a danger to the force, and I dismiss you,” or words to that effect. Then after a pause, he added, “As a disgrace to the force.” By this, Ross meant that the pursuer was a person who ought to be shunned by his fellows, as a danger to them, and that he was a disgrace to his profession and unfit to be a member of it. Said words were addressed by Ross to the pursuer, they were of and concerning the pursuer, and they were falsely, calumniously, and maliciously, and without any cause uttered by Ross in the hearing and presence of the said Deputy Chief Constable Chisholm,’ and others.
The pursuer further averred in Cond. 10:—‘By his said dismissal of the pursuer the defender Ross acted illegally, nimiously, oppressively, and maliciously. The pursuer had always borne a good character in the force, and the alleged offence for which he was ostensibly dismissed, even if it had been brought home to him, which it was not, was not one which justified his dismissal in the reasonable exercise of official discipline or in the reasonable execution of the defender's statutory powers. In the said dismissal the defender was not acting in the interests of the force or of the public, but in pursuit of his own private vengeance. His power to dismiss the pursuer was limited to...
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