Malcolm v Moore
| Jurisdiction | Scotland |
| Judgment Date | 25 October 1901 |
| Date | 25 October 1901 |
| Docket Number | No. 8. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
ExpensesReparationSlanderTender and ApologyQualified Apology.
In an action of damages for slander the defender denied any recollection of having uttered the statement complained of, but, on the assumption that he had uttered it, offered an apology in which he expressed regret for, and unreservedly withdrew, and admitted that there were no grounds for, what had been said, at the same time tendering a sum of 51. The jury awarded to the pursuer 50 of damages. Held that the defender was entitled to expenses from the date of lodging the tender and apology.
This was an action of damages for slander, the averment of the pursuer being that the defender had stated of the pursuer that he was a thief and a liar, and that he had stolen the defender's pocket-book.
The defender on record denied that he had used the words complained of, and explained that on the day when he was said to have used them the pursuer and defender had been drinking together, and that by the time that they arrived at a shop where the defender first missed his pocket-book, the defender was under the influence of liquor. Although annoyed at the loss of his pocket-book, he did not intend to charge the pursuer with having meddled with it, and is not conscious of having done so. If, however, anything said by the defender could have been construed as reflecting on the pursuer's character in any way, or imputing mendacity or dishonesty to him, the defender expresses regret for having used language capable of such interpretation, and unreservedly retracts the same, as there were no grounds therefor. Under reservation of all his pleas, the defender hereby tenders to the pursuer the sum of 51 sterling, with the expenses of process.*
Issues were subsequently approved of, and the case having gone to trial before the Lord President and a jury, the jury returned a verdict for the pursuer, assessing the damages at 50.
Thereafter the pursuer moved the Court to apply the verdict, and to find him entitled to expenses. The defender moved the Court to find him entitled to expenses after the date of the tender and apology.
Argued for the pursuer;The apology was insufficient. It was qualified and only hypothetical, and the acceptance of it by the pursuer would not have vindicated his character so effectively as the verdict of the jury had done. A money tender in such circumstances, though exceeding the amount ultimately assessed by the jury as damages, was, in the absence of an absolute and unqualified...
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