Evans & Sons v Stein & Company
| Jurisdiction | Scotland |
| Judgment Date | 17 November 1904 |
| Date | 17 November 1904 |
| Docket Number | No. 14. |
| Court | Court of Session |
Lord Kincairney, Lord M'Laren, Lord Adam, Lord Kinnear, Lord President.
ReparationSlanderForeignLex loci delictiPublication of Slander.
In order to maintain an action ex delicto in Scotland, when the wrong is committed in another country, the wrong must be one for which an action can be maintained both by the law of Scotland and by the law of the country in which it is said to have been done.
In an action of damages for slander brought by a firm in England against a firm in Scotland, the pursuers averred that the slander was contained in two letters and a telegram, sent from Scotland, by the defenders to the pursuers, and that the slander had been published in the sense of English law, in respect that the letters had been dictated to and typewritten by the defenders' clerks, and that the telegram had passed through the hands of post-office clerks. The names of the defenders' clerks and of the post-office clerks were not given.
The Court (rev. judgment of Lord Kincairney) dismissed the action, holding (1) that there was no relevant averment of publication of defamatory matter to persons other than the pursuers; (2) that the defamatory statement to the pursuers was made in England; (3) that it was admitted that by the law of England the statement to the pursuers themselves was not an injury to reputation and was not an actionable wrong; and (4) that the action could not be maintained in respect that the statement was not an actionable wrong by the law of England.
On 13th January 1904 Joseph Evans & Sons, engineers, Wolverhampton, raised an action against John G. Stein & Company, Ganisterand Fireclay Works, Bonnybridge, concluding for 1000 damages for slander.
The pursuers averred that the slander complained of was contained in two letters and a telegram dispatched through the post-office and delivered to the pursuers at Wolverhampton, complaining of delay in forwarding certain pumping plant. (Cond. 10) The statements in the letters and telegram were falsely and maliciously made, and without probable cause or any cause. The question whether the letters and telegram are actionable falls to be determined according to the law and practice of Scotland. The letters complained of were dictated by the defenders to, and typewritten by, a clerk or clerks in the employment of the defenders in Scotland. The letters and telegram of the defenders, dated 18th and 19th June 1903, addressed to the pursuers were in the ordinary course of the business opened by, and read by, members of the staff of pursuers' firm on delivery at the pursuers' place of business. None of said letters or telegram were in fact opened by, or read by, partners of the pursuers' firm in the first instance. All the said letters and telegram were thus published to third parties, in the sense of English law, both in Scotland and in England. The said telegram, dispatched by the defenders on 18th June 1903, passed through the hands of clerks in telegraph offices as an open message both on its dispatch from Scotland and on its arrival in England, and was thus published to third parties in both countries in the sense of English law.
The defenders averred;(Ans. 10) The pursuers carry on business in England, and the letters complained of were addressed and delivered to the pursuers at their place of business in Wolverhampton. Said letters were not published in Scotland, and the question whether or not the contents of said letters are libellous falls to be determined according to English law and practice. By the law of England, in order to constitute a libel it is necessary for the alleged libellous writing to be published to a third party, and the dispatch by the defenders to the pursuers of said letters was not publication in the sense of English law.
The pursuers pleaded, inter alia;(1) The defenders having slandered the pursuers as condescended on, the pursuers are entitled to reparation as concluded for, with expenses.
The defenders pleaded, inter alia;(1) No relevant case.
On 21st June 1904 the Lord Ordinary (Kincairney) pronounced an interlocutor approving of certain issues and counter issues for the trial of the cause.*
The defenders reclaimed, and argued;The locus delicti was in England, where the alleged wrong had been committed, and therefore the question whether any wrong had been done to the pursuers entitling them to damages must be decided by the law of England.1 According to English law no action for damages for defamation could lie unless the defamatory words were published to a third party.2 Here there had been no publication. Sending a letter through the post was not publication.3 Dictating a letter to a clerk was not publication, and the name of the clerk was not stated. When a wrong was alleged to have been done in a foreign country no action would lie in the Courts of this country unless the wrong was actionable both in the foreign country and in this country.4
Argued for the pursuers;The locus delicti was in Scotland, where the letter had been written and posted, and the question whether an actionable wrong had been done must be determined according to the law of Scotland.5 Publication to a third party was not necessary in Scotland.6 The wrong was done when the letters were posted, just as a contract might be completed by the posting of a letter. The locus of a crime committed through the agency of the post-office was the place where the letter was posted.7 In England, it had been held that a letter was published by the act of posting in the place where it was posted.8 (2) Although by the law of England a defamatory statement to the person defamed was not actionable, there had here been publication to third parties. Communication to clerks or typewriters in the employment of the person sending the letter was publication according to English law.9 So also was the sending of a telegram.10 A wrong had been committed which was actionable both by the law of Scotland and by the law of England, and an issue should be allowed.11
Lord M'Laren.The defenders in this case, who are described as makers...
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