Gordon v John Leng & Company
| Jurisdiction | Scotland |
| Judgment Date | 14 March 1919 |
| Docket Number | No. 47. |
| Date | 14 March 1919 |
| Court | Court of Session |
Ld. Ormidale, Lord Justice-Clerk, Lord Dundas, Lord Salvesen.
ProcessReclaiming noteReclaiming without leaveCompetencyAllowance of proofInterlocutor fixing diet for adjustment of issuesCourt of Session Act, 1868 (31 and 32 Vict. cap. 100), sec. 28.
ProcessJury trialPlea to relevancyTime for lodging issues.
In an action of damages for slander held (after consultation with the Judges of the First Division) that an interlocutor repelling a plea to the relevancy of the action, and assigning a diet for the adjustment of issues, could competently be reclaimed against within six days without the leave of the Lord Ordinary.
Little v. North British Railway Co.SC, (1877) 4 R. 980, followed.
Observed that in cases where one of the parties urges the plea of irrelevancy, and the other party desires trial by jury, the Lord Ordinary ought, as a rule, to have the proposed issues before him at the discussion, whether that discussion takes place in the Procedure Roll or upon the adjustment of issues.
ReparationSlanderInnuendoNewspaperFalse statement that a commanding officer gave an order to his men to surrender.
A newspaper published an article purporting to be based on the experiences of a corporal in a Highland regiment which surrendered in the retreat from Mons in 1914. The article stated that, during an engagement in the retreat, Colonel G. of that regiment, after saying that further fighting was only a useless sacrifice of life, ordered the men under his command to throw down their arms and surrender. In an action of damages for slander brought by Colonel G. against the proprietors of the newspaper, the pursuer averred that the statements, so far as they related to him, were false and were known by the defenders to be so at the time of publication; that in fact the troops might have cut their way through had no order to surrender been given; that an officer who surrendered in face of the enemy fell, under the King's Regulations, to be arrested and to be tried by general court martial; that, particularly in the area in which Highland regiments were recruited and this newspaper circulated, reports had been current with regard to the circumstances of the alleged surrender, reflecting injuriously on the conduct of the troops and the courage and capacity of their officers, and especially of the officer said to be responsible for the surrender; that these reports were well known to the defenders and to the individual shareholders of the defenders' company when the article was published; and that the statements complained of were intended to represent that he was the officer responsible for the surrender, and had failed in his duty as a soldier. The defenders accepted the pursuer's statement that no order to surrender had been given by him.
Held (1) that the pursuer was entitled to an issue, and (2) (diss. Lord Salvesen) that an innuendo must be set forth in the issue; and an issue approved containing the innuendo that the statements falsely and calumniously represented that the pursuer was the officer responsible for the surrender, and that he had failed in his duty as a soldier.
On 2nd April 1918, Brevet-Colonel William Eagleson Gordon, V.C., Easter Moncrieffe, Bridge of Earn, brought an action against John Leng & Company, Limited, Dundee, the proprietors of the People's Journal, for payment of 5000 in name of damages for slander. The pursuer founded upon a portion of an article published in that newspaper on 29th December 1917. The portion of the article complained of was as follows:
Begin to-day these thrilling revelations.
THE MOST DARING MAN IN HATED SENNELAGER.
What I Saw and Did in Hunland.
By Corporal George Mutch, Gordon Highlanders.
| A short time ago Corporal Mutch was doing punishment in the cells of Sennelager for his third unsuccessful attempt to escape. At his fourth attempt he succeeded in reaching Holland, and is now safe and sound at his home in Mintlaw, Aberdeenshire. In the following narrative this gallant soldier relates some of the amaziug experiences that befell him during his three years in Germany. | There is no doubt that you are the most daring man in Sennelager, said the Commandant of that infamous German prison camp to Corporal Mutch when handing him over for trial by court martial for insulting a German sentry. His words were not new to the Gordon Highlander. He had long been recognised by his comrades and captors as the most adventurous spirit in the camp. |
It's no use fighting any longer, men. It is only a useless sacrifice of life. We'd be better to put down our arms and surrender.
That day in September 1914, when Colonel Gordon, of the Gordon Highlanders, gave us the above order, was, I believe, the most eventful of my life, crowded with excitement though it has been during the past three years.
It was just after our famous retreat from Mons. Having been a regular soldier at the outbreak of war, I had been drafted with my regiment to the front at the very beginning of the war, and took part in the battle which ended in the historic retreat. Our battalion, or rather what remained of it, consisting of some 600 men, under Colonel Gordon and Colonel Neish, found itself separated from the main forces, then retreating. We knew that the enemy must be close on our heels, but we never guessed that they had actually cut us off.
We sent out two scouts to see how the land lay, and they returned with the report that the road seemed all clear in the direction of the village of Audencourt. Here lay our chance of slipping through to our own lines. For five kilometres we marched down that hot and dusty road. We were all very footsore and weary, and had had practically nothing to eat for three days.
Dusk was beginning to fall as our long, weary line straggled into Audencourt, when suddenly a few rifle shots rang out ahead of us. The first thought that jumped to my mind was that some Frenchmen had mistaken us for the enemy, and were opening fire on us. The fusillade increased, and men began to fall on both sides.
In the van shouts were raised to show that we were British, but the firing continued. In the dusk we could see figures in the fields on each side of the road, and a young officer went out to investigate. He returned with the report that the Germans had completely surrounded us. About the same time a German officer, evidently under the impression that we were surrendering, came right down to our ranks. We quickly let him know by making him a prisoner that we were not giving in so readily.
Captured.
Then we opened fire on the enemy. As we were a splendid target for them, however, and they were almost invisible to us, it was plain that very soon we would be completely wiped out. We could neither advance nor retire, and gradually the Germans closed in about us. After about twenty minutes Colonel Gordon ordered us to throw down our arms and the fight was over.
The material averments of the parties were:(Cond. 1) The pursuer is a Brevet-Colonel in the army, and at the commencement of the war in August 1914 was Senior Major in the 1st Battalion of the Gordon Highlanders, then under the command of Lieut.-Colonel Francis Hugh Neish. In August 1914, owing to the circumstances existing at the time of the incident referred to in the article quoted in condescendence 4, the pursuer by virtue of his rank was in command of a mixed column consisting of part of the said 1st Battalion of the Gordon Highlanders and companies of the Royal Scots and Royal Irish. (Cond. 3) The defenders are proprietors of a weekly journal known as the People's Journal, which they advertise as having the largest circulation of any paper north of the Forth, and which in fact circulates largely in the area from which the Highland regiments are recruited. (Cond. 4.) In the issue of the said People's Journal, dated 29th December 1917, the defenders published an article entitled The most daring man in hated Sennelager, and purporting to be by Corporal George Mutch of the Gordon Highlanders. This article commenced with the following words: It's no use fighting any longer, men. It is only a useless sacrifice of life. We'd be better to put down our arms and surrender. That day in September 1914, when Colonel Gordon of the Gordon Highlanders gave us the above order, was, I believe, the most eventful of my life, crowded with excitement though it has been during the past three years. And further on it contained the following statement: Then we opened fire on the enemy. As we were a splendid target for them, however, and they were almost invisible to us, it was plain that very soon we would be completely wiped out, we could neither advance nor retire, and gradually the Germans closed in about us. After about twenty minutes Colonel Gordon ordered us to throw down our arms, and the fight was over. (Cond. 5) An officer who surrenders or who is...
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