Lord Hamilton v Glasgow Dairy Company
| Jurisdiction | Scotland |
| Judgment Date | 20 March 1930 |
| Date | 20 March 1930 |
| Docket Number | No. 94. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Ld. Moncrieff.
SlanderInnuendoPrivilegeMaliceSufficiency of averments of maliceAction by producer of milk against dairy company based on circular issued to customers.
In an action of damages for slander, brought against a dairy company by a producer of high grade milk, the pursuer averred that he had, for a considerable period, supplied "certified milk" to the defenders for distribution among their customers; that, on 11th May 1929, the defenders intimated to the pursuer that no further supply would be required after 31st May, as thereafter one of the shareholders of a company associated with the defenders would be in a position to supply their customers; that, on 26th May, the pursuer enclosed, within the sealing capsules of the bottles of milk supplied by him to the defenders, a notice to consumers of his milk that, as his milk would not be obtainable from the then distributors after 1st June, those who desired it thereafter should communicate with the pursuer's manager; and that, on 28th May, the defenders issued a circular to their customers stating that, upon bacteriological examination, the pursuer's milk had been found not to comply with the statutory regulations regarding "certified milk," in that bacillus coli had been found in one-tenth cubic centimetre, and that, as a result, they had decided to look out for another source of supply, and, after testing samples of milk from various producers, had selected the new supplier's milk as the most satisfactory. It was admitted by the defenders that the standard of "certified milk" was so high that, even with every care, isolated samples of it might be found to fall below the standard.
The pursuer proposed an issue in which he innuendoed the circular of 28th May as representing that he had supplied milk to the defenders as "certified milk" which was of an inferior quality and contaminated with bacillus coli, and that, in consequence, the defenders had terminated their contract with the pursuer.
Held (1) (dub. the Lord President) that the circular was capable of supporting the innuendo proposed; (2) that the occasion on which the circular was issued was privileged; but (3) (rev.judgment of Lord Moncrieff) that, having regard in particular to the contrast between the defenders' attitude to the pursuer when the contract was terminated and the terms of their circular, and, further, to the fact that their letter to the pursuer disclosed an intention to benefit a conjunct and confident person, the pursuer had relevantly averred facts and circumstances from which malice might be inferred; and issue allowed.
Dicta of Lord Kinnear in Russell v. Stubbs, Limited, 1913 S. C. (H. L.) 14, at p. 20, [1913] A. C. 386, at p. 393, approved, and dicta of Viscount Haldane in Langlands v. John Leng & Co.,1916 S. C. (H. L.) 102, at p. 105, commented on, perLord Sands and Lord Blackburn.
Lord Hamilton of Dalzell brought an action against (first) the Glasgow Dairy Company, Limited, 8 Ashley Street, Glasgow, and (second) Arthur Gilmour, C.A., 8 Ashley Street, Glasgow (who was the secretary and manager of the Company), concluding for decree against the defenders, jointly and severally, for the sum of 4000 as damages for slander.
The circumstances of the case, as disclosed by the averments of parties, were as follows:The pursuer was tenant of Dalzell Home Farm, Motherwell, where he carried on business as a producer of high grade milk. The first defenders were milk distributors in Glasgow, and the second defender was their secretary and manager. The type of milk dealt in by the pursuer and defenders was known as "certified milk,"all dealings in which were controlled by the provisions of the Milk and Dairies (Amendment) Act, 1922,1 and of certain Statutory Rules and Orders, and in particular the Milk (Special Designations) Order (Scotland), 1923,2 issued thereunder. Under the Act and the Order of 1923 the pursuer held a producer's licence to sell "certified milk," and the first defenders had a dealer's licence for the Glasgow area. Among the statutory conditions attaching to these classes of licences was the following condition as to the quality of the milk:"On a sample being taken at any time before delivery to the consumer, the milk shall be found to contain (b) no coliform bacillus in one-tenth of a cubic centimetre "3
The defenders the Glasgow Dairy Co. had, for a considerable period, been supplied by the pursuer with "certified milk," which they retailed to their customers. The milk was not supplied to them by the pursuer in bulk, but in sealed bottles, which these defenders delivered intact to their customers.
The parties further averred:(Cond. 5) "In or about the later months of the year 1928 the defenders the Glasgow Dairy Company, Limited, became associated with an organisation known as the East Kilbride Dairy Farmers, Limited. The defender Arthur Gilmour is the secretary and manager of both Companies, and from and after December 1928 communications upon behalf of the Glasgow Dairy Company, Limited, reached the pursuer upon the notepaper of the East Kilbride Dairy Farmers, Limited, and
bearing to be signed by the defender Arthur Gilmour in his capacity as their secretary. The pursuer also supplied milk at the request of the East Kilbride Dairy Farmers" judge=" Limited. He supplied milk for distribution to no other large-scale distributors in Glasgow than the Glasgow Dairy Company, Limited, and the East Kilbride Dairy Farmers, Limited, and the pursuer believes and avers that, as far as the distribution of his certified milk was concerned, the two companies acted as one concern. On 11th May 1929 the pursuer received a letter on the notepaper of the East Kilbride Dairy Farmers, Limited, and bearing to be signed by the defender Arthur Gilmour as their secretary, intimating that no further supplies of the pursuer's Certified Milk would be required from and after 31st May 1929, either by the East Kilbride Dairy Farmers, Limited, or the Glasgow Dairy Company, Limited, as one of our own shareholders is now in a position to supply our customers. The pursuer was surprised at this action taken upon the part of the distributors, and particularly in respect of the short notice given, and protested; but the supply by the pursuer to the defenders the Glasgow Dairy Company, Limited, of Certified Milk was terminated as at 31st May 1929.Quoad ultra the statements in answer are denied so far as not coinciding herewith. It is explained that the standard of Certified milk is so high that with every care, as the defenders were well aware, it is found that isolated samples are below the prescribed standard. The defenders increased their orders for certified milk to pursuer on 6th December 1928 and 28th December 1928, and on 7th May 1929 the pursuer was asked by the second defender on behalf of East Kilbride Dairy Farmers, Limited, to tender for a supply to Paisley Hospital. Further, in a letter dated 24th May 1929, which is produced and founded on, the defenders wrote, we take this opportunity of thanking you (the pursuer) for the most excellent services rendered by you during the time you have supplied us." (Ans. 5) " admitted that the standard of Certified Milk is so high that with every care isolated samples are below the standard. " (Cond. 6) "The whole of the trade in Certified Milk, which the Glasgow Dairy Company, Limited, had built up, had been built up on the sale of the pursuer's milk, and the pursuer, in order that the customers who desired to continue the purchase of Dalzell Certified Milk after 31st May might be in a position to do so, intimated by means of a slip, enclosed within the sealing capsule sent out with the milk of 26th May 1929, that the existing arrangements for the distribution of Dalzell Milk had been terminated, and specifying the arrangements under which customers would be in a position to have their supplies continued. In response to this notice replies were received from several persons stating that they wished to continue to use the Certified Milk produced by the pursuer, and inquiring as to the future arrangements for distribution. With reference to the statements in answer, the notice referred to is correctly quoted.Quoad ultra the statements in answer are denied. It is explained that pursuer's object in enclosing the notice was to ensure that those persons who desired to continue to receive his milk might do so. This was done in good faith, and in the exercise of his right to inform those persons that his milk could no...
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Lord Hamilton v Glasgow Dairy Company
...dicta of Viscount Haldane in Langlands v. John Leng & Co., 1916 S. C. (H. L.) 102, at p. 105. (In the Court of Session, 20th March 1930—1930 S. C. 683). Lord Hamilton of Dalzell brought an action against (first) the Glasgow Dairy Company, Limited, 8 Ashley Street, Glasgow, and (second) Arth......
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Lord Hamilton v Glasgow Dairy Company
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