Griffen v Divers
| Jurisdiction | Scotland |
| Judgment Date | 24 June 1922 |
| Docket Number | No. 78. |
| Date | 24 June 1922 |
| Court | Court of Session |
Ld. Anderson, Lord Justice-Clerk (Scott Dickson), Lord Ormidale, Lord Hunter.
ReparationSlanderInnuendoConduct inferring hypocrisy, deceit, and treacheryPrivilegeMaliceSufficiency of averments of malice.
In an action of damages for slander brought by a Glasgow licence-holder against two other licence-holders in the city, the pursuer averred that, in view of the provisions of the Temperance (Scotland) Act, 1913, the licence-holders in the city had resolved, as their official policy, to seek to prevent the requisite number of signatures to requisition forms for a poll under that Act being obtained, by themselves abstaining from signing forms and by distributing leaflets urging others to abstain, and that the pursuer had actively and openly supported that policy. He further averred that the defenders acting in concert had, to his serious prejudice, falsely, calumniously, and maliciously circulated a statement, which they both knew to be untrue, to the effect that he had signed a requisition form, and that they had thereby represented that he was a hypocrite, and was acting deceitfully and treacherously to his colleagues in the trade, and that that had in fact been the interpretation placed upon the statement. The occasion on which the defenders made the statement was privileged. The defenders admitted making the statement, but averred that in so doing they had relied upon an admission made to one of them by the pursuer himself that he had signed a requisition form. The pursuer averred that the requisition forms were open to public inspection; and he denied that he had ever signed such a requisition form or had stated to anyone that he had done so, and averred that both the defenders knew that he had never made such a statement.
Held (rev. judgment of Lord Anderson) (1) that, in the circumstances, the statement complained of was reasonably capable of the innuendo averred, and was defamatory; and (2) that malice had been relevantly averred.
Observed, per Lord HunterI cannot imagine any better case of malice than if a defender makes a slanderous statement of a pursuer, and then says, I made it because the pursuer told me that it was in accordance with fact. If it turns out that that was a mere invention, then it appears to me it must be inferred against the defender that he was acting maliciously.
On 14th April 1921 William Griffen, wine and spirit merchant. Glasgow, brought an action of damages for slander against John James Divers and Owen Sherry, both wine and spirit merchants, Glasgow. The conclusions of the summons were for decree (first) against both defenders conjunctly and severally for 5000, (second) against John James Divers for 3000, and (third) against Owen Sherry for 3000.
The parties averred:(Cond. 2) Arising out of the provisions of the Temperance (Scotland) Act, 1913, the Corporation of the City of Glasgow arranged to have a poll under said Act on the 2nd of November 1920, and there was held a poll under said Act in all the thirty-seven wards of the said city. Prior to the said poll, the licence-holders in each of the thirty-seven wards formed themselves into committees for the purpose of combating the attempt to dispossess them of their licences, and the pursuer joined with his colleagues in the trade in the organising of said opposition, Prior to the poll, and when the requisitions in terms of the Act were applied for on or about the 16th of August 1920 the general committee representing the licence-holders came to the deliberate understanding and agreement that they should do all in their power to prevent the necessary number of signatures to said requisitions for a poll being obtained in the said thirty-seven wards. To this end a leaflet calling upon the electors not to sign the requisition was prepared and circulated throughout the whole of the licensed premises in Glasgow. There are over 1600 licence-holders in Glasgow, and, with few exceptions, these leaflets were distributed from all their premises, and in many of the wards the said leaflets were delivered to the houses of the voters. In particular, in all the premises occupied by the pursuer and in those in which he had an interest, these leaflets were circulated between the 16th of August and the 30th of September. Further, the pursuer employed the assistants in his shops to go round the locality in which his business premises were situated and circulate the leaflets to the householders inviting all the electors not to sign the said requisition. It is believed that in the City of Glasgow these leaflets were circulated to the number of nearly half a million, and caused public comment, forming as they did a part of the propaganda carried on on both sides, so that the policy of the licensed trade in this matter became well known to the electorate. Further, it was, as a part of the policy of the licensed trade, resolved that no licence-holder should sign a requisition form, and this resolution was observed by all the 1600 licence-holders in Glasgow. It was further regarded in the trade as the duty of every licence-holder to do his utmost to prevent those in favour of no-licence from obtaining signatures to requisition forms, as if in any ward the number of signatures required by the Act were not obtained the result would be that in that ward there would be no poll. It came to be widely known that the pursuer and the other members of the trade were opposed to the signing of requisitions and had pledged themselves to one another, as in fact they did, to refrain from signing requisitions and to use their utmost endeavours to prevent others doing so. (Cond. 3) In order to defray the expenses necessarily incurred in fighting the organisation which existed for the purpose of securing a poll in favour of no-licence or limitation it was arranged to ask subscriptions from members of the licensed trade to a fund for this purpose. The defenders Sherry and Divers volunteered their services to obtain subscriptions to this fund. Towards the end of September 1920 the defender Sherry, ostensibly for the purpose of delivering some of the leaflets before mentioned for distribution by the pursuer and his assistants, called for the pursuer at his place of business at Garscube Road, Glasgow. On this occasion the defender Sherry was accompanied by the defender Divers. The latter, however, did not enter the pursuer's place of business but remained standing outside the door. No conversation whatever took place between the pursuer and the defender Sherry on this occasion. The defenders' averments and explanations in answer are denied. The pursuer at no time made the statement to the defender Sherry or to anyone that he had signed a requisition paper, and both defenders were well aware that he made no such statement. (Ans. 3) On the occasion referred to the defender Divers did not remain outside the door of the pursuer's shop, but crossed the street to another shop, while the defender Sherry entered the pursuer's shop. He explained the purpose of his visit, and asked for a subscription to the fund, which the pursuer undertook to give. In the course of conversation with the defender Sherry the pursuer said that he had signed a requisition form. The said defender asked him what his object was in so doing, and he said that it was to have a contest in all wards in Glasgow so that the opposition party would not be able to concentrate their efforts on any particular ward. After his interview with the pursuer the defender Sherry rejoined the defender Divers and reported to him the terms of the conversation detailed above. (Cond. 4) The required number of signatures to requisitions was obtained in all the thirty-seven wards, and, in terms of the statute, the requisitions were exhibited by the Local Authority in the district libraries in the said city from the 1st until the 8th of October, and were examined by a large number of the electors in the city. (Cond. 5) The defenders were well aware of the said policy of the licence-holders, and of the intense feeling the local veto campaign had caused in the various areas. The defender Divers entertained feelings of ill-will and malice towards the pursuer arising out of a difference which some time earlier had arisen between them with reference to a transaction relating to the sale of a public-house. The pursuer had been some time previously in negotiation with a Mr Gunn with a view to purchasing a public-house in Clydebank, which the latter wished to sell. The pursuer believed that the defender Divers intervened to induce Mr Gunn not to accept the pursuer's offer. Believing that Divers had acted unfairly towards him in connexion with this transaction, the pursuer resolved to have no further dealings with him. Some time later at one of the Ayr race meetings in August 1920, the defender Divers came up to the pursuer and...
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