Macmillan v Wilsons
| Jurisdiction | Scotland |
| Judgment Date | 25 October 1887 |
| Date | 25 October 1887 |
| Docket Number | No. 4. |
| Court | Court of Session |
Lord President, Lord Mure, Lord Shand, Lord Adam.
Expenses—Jury trial—Slander—Nominal damages—Court of Session Act, 1868 (31 and 32 Vict. c. 100), sec. 40.—
The 40th section of the Court of Session Act, 1868, enacts that where the pursuer in an action of damages in the Court of Session for defamation or libel recovers by the verdict of the jury less than £5, he shall not be entitled to recover from the defender any expenses unless the Judge before whom the verdict is obtained shall certify that the action was brought for vindication of character, and was, in his opinion, fit to be tried in the Court of Session.
Held that when the Judge grants such certificate the Court will give effect to his opinion, and award expenses to the pursuer.
In an action of damages for slander at the instance of Robert Macmillan against Messrs H. J. & J. Wilson, the proprietors of the Edinburgh Evening News, the jury awarded the pursuer one farthing of damages, and the pursuer now moved the Court to apply the verdict, and to find the defenders liable in expenses. An application had previously been made under the 40th section of the Court of Session Act, 1868,* to Lord Shand, who had tried the case, and his Lordship had granted a certificate that the action was brought for vindication of character, and fit to be tried in the Court of Session.
The defenders opposed the motion, contending that it had been established at the trial that the pursuer had no character to lose, and that the jury had taken that view when they awarded only one farthing of damages. Under the 40th section it was in the discretion of the Court to abstain from giving expenses, even after the presiding Judge had granted a certificate.
Lord President.—The 40th section of the Court of Session Act provides that when a verdict is obtained from a jury carrying less than £5 damages in the case of an action for defamation or for libel, the pursuer is not to be found entitled to expenses unless he satisfies the presiding Judge, and obtains from him a certificate to the effect, that the action was brought for the vindication of character, and was, in his opinion, fit to be tried in the Court of Session. I think it will be in the recollection of your Lordships that before the passing of this Act the rule was the same in substance, and that anybody obtaining expenses upon a verdict for nominal damages in an action for defamation or for libel was...
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