Wheatley v Anderson and Miller
| Jurisdiction | Scotland |
| Judgment Date | 02 December 1926 |
| Docket Number | No. 17. |
| Date | 02 December 1926 |
| Court | Court of Session |
Lord Murray, Lord Justice-Clerk (Alness), Lord Ormidale, Lord Hunter, Lord Anderson.
ProcessDiligence for recovery of documentsAction for slanderDefence of fair commentAverment of facts by defenderRecovery of documents limited to facts set forth in slander.
In an action to recover damages for libel, brought against the publisher of a newspaper which published a letter containing the alleged libel and against the writer of the letter, a defence of fair comment was pleaded. After issues were adjusted, the defenders presented a specification containing seventeen calls, and moved for a diligence. The letter complained of set forth two particular facts, but in the defences numerous other facts were set forth, and most of the calls aimed at the recovery of documents to prove these other facts. The Lord Ordinary having refused the specification in toto, the defenders reclaimed.
Held (rev. judgment of Lord Murray) that the defenders were entitled to recover documents to establish the facts referred to in the letter complained of, but were not entitled to recover documents relating to other facts referred to only in their defences.
SlanderPrivilegeComment on public mattersDefence of fair comment.
Opinions (per Lord Hunter and Lord Anderson) that, where the defence of fair comment is put forward in an action to recover damages for slander, the comments must be warranted by the facts stated in the writing complained of, in the sense that the facts must afford a reasonable foundation for the comments, and that it is not legitimate for a defender, by the averment of new facts in his defences, to extend the limits of inquiry.
Lyons v. Financial NewsUNK, (1909) 53 Sol. J. 671, commented on.
The Right Honourable John Wheatley, Member of Parliament for the Shettleston Division of the City of Glasgow, brought an action against Alexander B. Anderson, Parkhead, Glasgow, printer and publisher of the Eastern Argus and Glasgow East End Advertiser newspaper, which circulated in the constituency, and against John Maurice Reid Miller, 83 Renfield Street, Glasgow, who was the pursuer's political opponent at the parliamentary election in 1924, to recover 3000 from each of them in name of damages for the publication of an alleged libel of and concerning the pursuer, and for holding him up to public odium, hatred, and contempt.
The pursuer averred that unfounded rumours prejudicially reflecting upon him had been in circulation in Glasgow, and upon 19th September 1925 The Glasgow Eastern Standard newspaper, in which the pursuer was largely interested, issued in its columns, with the pursuer's knowledge and approval, a public challenge to the pursuer's traducers inviting them to prove the verity of the rumours referred to, and offering to pay 1000 to anyone who could establish the truth of any of the rumours. The challenge was headed Mr Wheatley and his Traducers. Our 1000 Challenge, and it referred in particular to rumours that the pursuer was a professional money-lender, that he was interested in the liquor trade, that he conducted a contractor's business with sweated labour, and that he was interested in a bookmaking business; and it categorically denied that there was any truth in these rumours.
In reply, the second defender, on 21st September 1925, sent for publication to the first defender a signed letter of that date, contained in the schedules appended to the issues approved of. The first defender printed and published the letter in the issues of his newspaper on 25th September and 2nd October 1925. The letter, after some introductory remarks, contained this passage:If he [pursuer] resents the rumours which you indicate are current regarding his interest in the liquor and usury traffic, the remedy lies in his own hands. There is a much more effective way of silencing these rumours than by issuing challenges. Let him make public his banking accounts and ALL his financial transactions since the date of his composition with his creditors, and let him most particularly give an account of transactions in concert with a certain well-known publican and agent for a firm of brewers, then will the public have the pleasure of discovering what an honourable, upright, and generous man he is. The letter then quoted a passage from a newspaper called the Catholic Herald attacking the pursuer, and commented on the fact that the pursuer had not vindicated his character by prosecuting that newspaper. After referring to certain alleged political actings of the pursuer and to his denunciations of capitalists while himself a capitalist, the letter continued:In view of his denunciation of the rapacity of capitalists and their plunderously excessive profits, the public would doubtless be intrigued to learn the extent of the return Mr Wheatley has had in cash and bonus shares on his original investment in Messrs Hoxton & Walsh, Limited. As far as I can ascertain, his original holding was 500; we must allow him a fair amount for the upkeep of himself and his family in a degree of luxury in the meantime; so when we find his present holding in Hoxton & Walsh 11,000, apart altogether from his interest in subsidiary companies, when we remember your statement that he has not one penny invested in any outside commercial concern, and when we take into account the fact that his municipal and parliamentary duties have taken up a great deal of his time, we are driven to the conclusion that he has done pretty well for himself by exploiting his employees. The letter further contained this passage:In a public speech, which was fully reported in the press, I described Mr Wheatley as an unscrupulous political charlatan, and a man who had no regard for the sanctity of an oath. I repeat that statement herewith.
In articles 5, 6, and 7 of his condescendence the pursuer referred to six passages in the letter, and innuendoed each of them as importing slanderous representations with regard to him. Two of these passages were referred to in condescendence 5 as follows: (Cond. 5) In particular, the said letter refers to an alleged composition by the pursuer with creditors, and thereby falsely and calumniously and maliciously charges the pursuer with having made such a composition settlement with his creditors instead of paying them in full. Further, the said letter invites the pursuer to give an account of all his financial transactions, and particularly certain transactions with a certain well-known publican and agent for a firm of brewers, so that the public may discover what an honourable, upright, and generous man he is. By this statement the defenders falsely and calumniously and maliciously represented, and intended to represent, and were understood by the readers of the newspaper to mean, that the pursuer was a man of dishonourable, crooked, and mean character, and that in particular his alleged transactions in concert with a well-known publican and agent for a firm of brewers showed the pursuer to be a man of dishonourable, crooked, and mean character. The sixth passage was referred to in condescendence 7 thus:(Cond. 7) Further, it falsely and calumniously and maliciously describes the pursuer as a man who had no regard for the sanctity of an oath.
The pursuer tabled six issues for the trial of the cause, dealing respectively with each of the six passages above referred to; and a seventh issue of holding up to public odium, hatred, and contempt.
The defender J. M. Reid Miller, in his defences, stated that the challenge was directed against himself among others, and that his letter in reply was fair comment on a matter of public interest. In lengthy answers to the articles of the pursuer's condescendence he set forth in detail allegations as to the pursuer's business activities from the year 1900 until the present time.
That defender pleaded, inter alia:(3) In respect the letter complained of is fair comment on matters relating to the pursuer in his public capacity, and that these are matters of public interest in the district in which the letter was published, this defender should be assoilzied. (4) The statements in the said letter, in so far as purporting to be statements of fact, being true, in substance and in fact, and, so far as they consist in expressions of opinion, being fair comments made in good faith upon matters of public interest et separatim being within the recognised limits of public controversy, this defender should be assoilzied.(6) The letter complained of being fair retort to a challenge issued by the pursuer to this defender, and this defender being privileged in writing same, this defender should be assoilzied.
Similar pleas were stated for the defender Alexander B. Anderson.
On 25th May 1926 the Lord Ordinary (Murray) approved of the second and sixth issues proposed by the pursuer and disallowed the others. The two issues allowed, after referring to the publication of the letter in question, were as follows:(1) Whether said letter is in whole or in part of and concerning the pursuer and falsely and calumniously represented that the pursuer was a man of dishonourable, crooked, and mean character, to the loss, injury, and damage of the pursuer? (2) Whether the said letter is in whole or in part of and concerning the pursuer and falsely and calumniously represented that the pursuer had no regard for the sanctity of an oath, to the loss, injury, and damage of the pursuer?
The defenders then lodged a specification of documents, for the recovery of which they moved for a diligence. There were seventeen calls, which included the following [as subsequently adjusted after the advising in the Inner House]:(1) All minutes of meetings of creditors, circulars to creditors, states of affairs, discharges and receipts by creditors, and all other documents and writings in any way relating to the composition entered into with the creditors of the business carried on by the pursuer with his...
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