Lyal v Henderson
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1916 |
| Docket Number | No. 18. |
| Date | 05 June 1916 |
| Court | House of Lords |
Ld. Chancellor (Buckmaster), Viscount Haldane, Lord Kinnear, Ld. Atkinson, Ld. Parker of Waddington.
Appeal to House of Lords—Competency—Interlocutor setting aside verdict of jury and entering judgment for unsuccessful party—Jury Trials Amendment (Scotland) Act, 1910 (10 Edw. VII. and 1 Geo. V. cap. 31), sec. 2.
The exclusion of appeal to the House of Lords against interlocutors allowing a new trial, contained in sec. 6 of the Jury Trials (Scotland) Act, 1815, is not imported into the Jury Trials Amendment (Scotland) Act, 1910; and, accordingly, there is a right of appeal to the House of Lords against an interlocutor of one of the Divisions of the Inner House, pronounced under sec. 2 of the latter Act, setting aside the verdict of a jury and, in place of granting a new trial, entering judgment for the party unsuccessful at the trial.
Reparation—Slander—Privilege—Malice—Intrinsic evidence of malice—Issue—Innuendo—Dishonourable conduct.
Observed (per the Lord Chancellor) ‘To submit the language used on privileged occasions to a strict scrutiny, and to hold all excess beyond the actual exigencies of the occasion to be evidence of express malice, would greatly limit, if not altogether defeat, the protection which the law gives to statements so made. The real question is whether, having regard to the circumstances, the statement is so violent as to afford evidence that it could not have been fairly and honestly made; for the very essence of a privileged occasion is that it protects statements that are defamatory and false, when, apart from the protection, the very character of the statement itself carries with it the implication of malice. If once the privilege be established, unless there be extrinsic evidence of malice, there must be something so extreme in the words used as to rebut the presumption of innocence and to afford evidence that there was a wrong and an indirect motive prompting the publication.’
At a meeting of a school board the chairman drew the attention of the meeting to the fact that a member moving a certain amendment adverse to the headmaster had, as defender in an action of damages for slander at the instance of the headmaster, been found liable in the sum of £400, and moved that this fact should be recorded in the minutes as showing that the member, in moving the amendment, was a prejudiced party. In an action of damages for slander against the chairman at the instance of this member the pursuer innuendoed the statement and motion of the defender as representing that the pursuer was actuated, not by a sense of public duty, but by private animosity, and was thereby guilty of dishonourable conduct. It was admitted that the occasion was privileged.
Held (aff. judgment of the Second Division) that there was no evidence, in the statement itself or in the circumstances in which it was made, to infer malice. Question whether, in any event, the statement was capable of bearing the innuendo placed upon it.
(In the Court of Session 9th November 1915.)
On 6th May 1913 Alexander Lyal, farmer, Greenknowe, Gordon, Berwickshire, brought an action for damages on the ground of slander against George Henderson, farmer, East Morriston, Gordon, Berwickshire, and Thomas Henderson, retired tea planter, Fawside Lodge, Gordon, Berwickshire. The alleged slander was contained in a motion proposed by the first defender and seconded by the second defender, and carried at a meeting of the School Board of Gordon, and afterwards recorded in the minutes of the School Board.
The facts of the case, as narrated by the Lord Chancellor in his opinion, were as follows:—
‘It appears that the pursuer and the defenders have for many years past devoted themselves to the important public duty of assisting in the affairs of Gordon School Board. From 1885–1903 the pursuer was a member of the Board, and acted as its chairman from 1894–1900. In 1906 he stood for election but failed to be returned; but in 1911 he again became a member. George Henderson and Thomas Henderson were both re-elected at the same election in 1911, and in 1912 George Henderson was appointed chairman of the Board. The headmaster of the school from 1889 down to the present time was a Mr Leitch, and differences of opinion arose between him and the pursuer as early as 1902. It is not relevant to inquire what was the cause of this disagreement. It is quite possible, in determining this case, to assume that the pursuer was acting in what he believed to be the best interests of the school in the course that he took. But unfortunately, in the pursuit of his object he was led into uttering defamatory statements about the headmaster, which resulted in an action for libel, and a verdict given in favour of the headmaster for the sum of £400 damages.
‘In the election of 1906, when the pursuer was standing for election, Thomas Henderson thought it was his duty to issue a circular to the electors referring to this fact. The circular is dated the 5th of April 1906, and the important passage in it is this:—“Mr Lyal has again seen fit to come forward as a candidate, and I am sure all right-thinking persons will agree with me that, after the result of the Leitch v. Lyal case, he cannot be a fit man to sit on a board where he may have to vote on questions affecting the headmaster and the staff generally, and I trust electors will show their disapproval of his action.”
‘Again in 1909 Mr Henderson wrote to Mr Hogg on the eve of the election of that year, stating that he intended to get a nomination ready for opposition to Mr Lyal, unless he could get an assurance that he was not going to stand.
‘In this same year a Mrs Ogilvie was appointed mistress of the infant school, and, unfortunately for the welfare of education in the Gordon district, disputes appear quickly to have arisen between her and the headmaster—disputes which continued until they culminated in the dismissal of Mrs Ogilvie in 1912. Throughout this quarrel the pursuer actively championed the cause of Mrs Ogilvie. Messrs George and Thomas Henderson, on the other hand, supported the headmaster. This dispute appears to have been acute when the new Board of 1911 assumed its duties. Various motions were made and recorded in the minutes of the School Board meetings with regard to the matter throughout 1911; and, in the early part of February 1912, on the pursuer's motion, seconded by Mr George Henderson, it was resolved that the Education Department be asked to make a departmental inquiry into the whole case of Mrs Ogilvie since her appointment. Following this, on the 16th of March 1912, the pursuer moved that a number of inquiries be made with regard to the action of the headmaster in relation to Mrs Ogilvie, and a motion, that a copy of the pursuer's statements with regard to these inquiries should be sent to the Department, was moved by Thomas Henderson, but it does not appear from the minutes whether or not it was carried. From the minutes of this meeting it appears that the Board had written a letter to Mrs Ogilvie on the 2nd December 1911, the terms of which are not given; and at this meeting of 16th March, a motion was carried that unless her reply was forwarded within ten days, the Board would proceed to serve her with a formal notice.
‘The dispute continued, and on 10th May 1912 a meeting took place at which it was resolved, on the motion of Mr George Henderson, that Mrs Ogilvie should be dismissed. It was on this occasion that the libel complained of was published. There appears to have been a vehement discussion as to the dismissal of Mrs Ogilvie and the pursuer moved as an amendment that she should be retained as mistress. The minutes then contain the following statement:—“The chairman drew the attention of the meeting to the fact that the mover of the amendment was the defender in the Leitch v. Lyal case and had to pay £400 damages and expenses to the headmaster for slander. And moved that this be recorded in the minute as showing that Mr Lyal, as moving the amendment, is a prejudiced party, seconded by Mr Thomas Henderson.” And it is this statement that is the subject of the libel.’
The pursuer on record averred, inter alia;—(Cond. 6) ‘The said motion relating to the pursuer was intended by the defenders to represent, and did falsely, calumniously, and maliciously, and without probable or any cause, represent that the pursuer had sought and obtained election as a member of the said School Board, and continued to sit thereon, not with the object of impartially discharging his duties as a member of said Board, but solely for the purpose of gratifying a private animosity which he entertained against the headmaster, Mr Leitch, in total disregard of the interests of the School Board and the education of the parish. In any event, the said motion falsely, calumniously, and maliciously represented that in moving the said amendment the pursuer was actuated not by a sense of public duty but by private animosity which he bore towards the said headmaster, and was thereby guilty of dishonourable conduct.’ The pursuer also condescended on an amendment with regard to the same matter, proposed and seconded by the defenders at a meeting of the School Board on 29th March 1913.
The defenders pleaded, inter alia;—The motion and amendment complained of having been made by the defenders in the bona fide discharge of a public duty, are privileged, and the defenders, having acted without malice, are entitled to absolvitor.
The following issue was proposed for the trial:—‘… Whether the defenders or either of them, and which, by the said statement [the statement at the meeting of the School Board on 10th May 1912] represented falsely, calumniously, and maliciously that in moving the said amendment the pursuer was actuated not by a sense of public duty, but by private animosity which he bore toward the said headmaster, and was thereby guilty of dishonourable conduct …?’
The defender...
To continue reading
Request your trial
-
Hayford v Forrester-Paton
...as described in that paragraph, had broken his wife's heart. As was pointed out by Lord Buckmaster, L.C. in Lyal v. Henderson, 1916 S. C. (H. L.) 167, at p. 175, To submit the language used on privileged occasions to a strict scrutiny, and to hold all excess beyond the actual exigencies of ......
-
Macdonald v Martin
...Anderson at p. 364. 9 Campbell v. CochraneUNK, (1905) 8 F. 205;Chalmers v. Barclay, Perkins & Co. 1912 S. C. 521;Lyal v. Henderson, 1916 S. C. (H. L.) 167;Hayford v. Forrester-Paton, 1927 S. C. 740. 10 1910 S. C. 459. 11 14 R. 1057. 12 3 Dow, 160. 13 9 R. 934. 14 22 R. 984. 15 16 R. 774. 16......
-
Lord Hamilton v Glasgow Dairy Company
...C.J., at pp. 414 and 418. 2 Mitchell v. Smith, 1919 S. C. 664, Lord Mackenzie at p. 673, Lord Sands at p. 673; Lyal v. Henderson, 1916 S. C. (H. L.) 167, Lord Kinnear at p. 3 Macdonald v. M'CollUNK, 3 F. 1082. 1 1916 S. C. (H. L.) 102, at p. 105. 2 1913 S. C. (H. L.) 14, at p. 20, [1913] A.......
-
Lord Hamilton v Glasgow Dairy Company
...L.) 14, at p. 20, [1913] A. C. 386, at p. 393; Langlands v. John Leng & Co., 1916 S. C. (H. L.) 102, at p. 105; Lyal v. Henderson, 1916 S. C. (H. L.) 167; Mitchell v. Smith, 1919 S. C. 664;James v. Baird, 1916 S. C. (H. L.) 158, at p. 1 1913 S. C. (H. L.) 14, at p. 20, [1913] A. C. 386, at ......