Williamson v Umphray and Robertson
| Jurisdiction | Scotland |
| Judgment Date | 11 June 1890 |
| Date | 11 June 1890 |
| Docket Number | No. 152. |
| Court | Court of Session |
Ld. Kyllachy. B., Lord President, Lord Shand, Lord Adam, Lord M'Laren.
ReparationLibelJudicial proceedingsPrivilege.
At a meeting of Justices of the Peace for the granting of licences, a letter containing matter defamatory of one of the applicants was read by A, a solicitor, who had been employed to oppose the application. The letter had been written to A by B, one of the clients who so employed him. In an action of damages for libel against both A and B, the pursuer alleged that the defenders knew that the statements in the letter were untrue, that they had made them maliciously for the purpose of defaming the pursuer, and that B had maliciously instructed A to read them in open Court for the purpose of defaming the pursuer's character. Held (1) that as according to the pursuer's averment, A had read the letter in Court as agent for B, and upon his instructions, A had an absolute privilege, and no action lay against him, and (2) that the pursuer was entitled to an issue against B, putting, inter alia, the questions whether he wrote the letter, and maliciously instructed A to read it in Court, and whether it was read by the other defender acting on the instructions so maliciously given.
Bryden Williamson, merchant, Booth of Sand, Shetland, applied for a grocer's licence for his premises at the Licensing Court held at Lerwick on 29th October 1889.
A petition, signed by William Hay Umphray and others, was lodged against the granting of the licence, and in support of it Mr Andrew John Robertson, S.S.C., Lerwick, appeared and stated several objections. He further produced and read in open Court the following letter from Mr William Hay Umphray, son of Andrew Umphray, of Reawick, Shetland, dated 26th October 1889,Dear Sir,There is an attempt on the part of the man who now has the Sand shop to obtain a spirit licence. Mr Williamson, independent minister here, is to go down to town to support petition against this. He will require a legal adviser, and is to call on you. You will see by the accompanying correspondence that very little time was allowed to put in objections, but we managed to lodge a petition on the 23d, which was the time required; but at the same time we gave intimation that another petition was being signed, and we gave Mr Bryden Williamson copies of both petitions. A certificate you will receive herewith. We are in the hope that the Justices will not grant it, for the reasons there stated. There never has been a licence in this quarter, and we would like very much to prevent it. I shall enclose a copy of the reasons given for objecting to it in each of the petitions, that you may consider them before the Court. Mr Williamson is really not a fit person to have a licence. He likes it too well himself, as the Rev. Williamson will tell you, and what makes it still more serious, his wife has been in a lunatic asylum and is often now quite madYours very truly, W. H. Umphray. P.S.In case anything should prevent the Rev. Mr Williamson getting to town, you will please attend meeting without him, and do your best to prevent licence being granted.
The licence was refused, and thereafter Williamson brought an action of damages for slander against Umphray and Robertson.
The pursuer averred that Mr Robertson, after speaking to the objections of which notice had been given, acting on the instructions of the other defender, said he wished to refer to the applicant's character. The agent for the pursuer objected, on the ground that there had been no notice given of such a reason in the petition; whereupon Mr Robertson said he had a letter in his hand from a Justice of the Peace, and that in virtue of sec. 12 of 25 and 26 Vict. cap. 35, he was, as agent for said Justice of the Peace, entitled, without any notice being required, to read it. He thereupon read to the Court a letter he had received from the defender, Mr Umphray (who is not a Justice of the Peace), dated 26th October 1889. No prior notice having been given of the said letter, or of the matters contained in it, as required by statute, Mr Robertson was allowed to read it only because he falsely represented that it was the letter of a Justice of the Peace of Shetland, and pleaded the privilege of a Justice of the Peace to object without notice. (Cond. 2) . The defenders both knew that it was incompetent and illegal to make the said statements in Court, and that the statements were untrue, but they made them maliciously for the purpose of defaming pursuer, and thus succeeding in opposing his application. (Cond. 3) Besides making the said false and calumnious and malicious statements regarding the pursuer to the defender, Andrew John Robertson, in the said letter as condescended on, the defender, Mr Umphray, maliciously and without probable or any cause, instructed Mr Robertson to make the said statements in open Court for the purpose of defaming the pursuer's character, and so lowering him in the opinion of the Justices of the Peace as to make it impossible for them to grant the licence sought. .
Umphray, in answer, stated that the letter in question had been written by him to his father's dictation, and, per incuriam, signed by him in place of his father; that it was private and confidential; and that it was without his authority, and through the mistake of his agent, Robertson, that it was read in Court.
He pleaded, inter alia;(2) The statements contained in said letter of 26th October 1889 being confidential communications between agent and client, are absolutely privileged, and the defender should therefore be assoilzied. (3) The defender Andrew J. Robertson having no instructions or authority from the defender to publish the said letter, or to make any statement as to the pursuer personally, this defender should be assoilzied. (4) In any view, the importing by the said Andrew J. Robertson of the said letter into the proceedings before the licensing Justices being a statement by, or on behalf of, a party to judicial proceedings, is privileged.
Robertson stated that he had acted on the written instructions contained in the letter; and that he had thought the letter was from Mr Umphray senior, who was a Justice of the Peace, and not from his son.
He pleaded, inter alia;(2) The statement complained of having been uttered by the defender whilst pleading as a procurator in a Court of law, was privileged absolutely. (3) The said statement having been made on written information supplied by one of the petitioners for whom the defender appeared before the Court, and in good faith, and having been pertinent to the matter at issue, the defender had an absolute privilege in making it. (4) Separatim, The publication complained of having been made inadvertently through innocent mistake, the defender is not liable in damages.
The pursuer proposed the following issues:(1) Whether the defender William Hay Umphray wrote, or caused to be written, and delivered, or caused to be delivered, to the defender Andrew John Robertson the letter printed in the schedule hereto appended? And whether the said letter, or part thereof, is of and concerning the pursuer, and falsely and calumniously represents that the pursuer was so addicted to drink as to make him an unfit person to hold a grocer's licence, to the loss, injury, and damage of the pursuer? (2) Whether, on or about 29th October 1889, in the Court House, Lerwick, in the presence and hearing of parties named, or one or more of them, the defender Andrew John Robertson read to the Justices then sitting in the Licensing Court the letter printed in the schedule hereto appended, and whether, &c. [as in the first issue.] (3) Whether, on or about 29th October 1889, in the Court House, Lerwick, in the presence and hearing of the persons aforesaid, or one or more of them, the defender Andrew John Robertson, on the instruction of the defender William Hay Umphray, read to the Justices then sitting in the Licensing Court the letter printed in the schedule hereto appended, and whether, &c. [as in the first issue.] Damages laid at 1000.
The Lord Ordinary (Kyllachy), on 8th February 1890, pronounced this interlocutor:Dismisses the action as against the defender Andrew John Robertson, and decerns: Disallows the first and second issues proposed by the pursuer; approves of the third issue as amended, and appoints the same to be the issue for the trial of the case as between the pursuer and the defender William Hay Umphray: Finds the pursuer liable in expenses to the defender Andrew John Robertson, &c.*
The issue allowed was,Whether, on or about 29th October 1889, in the court House, Lerwick, in the presence and hearing of George Hector Bruce, &c., or one or more of them, the defender Alexander John Robertson, on the instruction of the defender William Hay Umphray, read to the Justices then sitting in the Licensing Court the letter printed in the schedule appended hereto [i.e., the letter quoted above]; and whether the said letter, or part thereof, is of and concerning the pursuer, and falsely, calumniously, and maliciously represents that the pursuer was so addicted to drink as to make him an unfit person to hold a licence, to the loss, injury, and damage of the pursuer?
The pursuer reclaimed, and argued;I. In regard to the second issue. A meeting of the Justices for granting or renewing certificates was not a Court. The Public Houses Acts Amendment Act of 1862 (25 and 26 Vict. cap. 35) always spoke of the general meeting of the Justices, and they acted in this matter in an administrative capacity. There was no appeal from the Justices except to Quarter Sessions, and anyone might take an appeal, whether lawyer or not. No doubt the Justices might award expenses, but on one side only. Further, it was not a case between a pursuer and defender in the ordinary sense. The words J. P. Court were nowhere used in the Act of 1862, and the words inferior Court, as defined in...
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Jones v Kaney
...jury, or judge, can be put to answer, civilly or criminally, for words spoken in office." As Lord President Inglis observed in Williamson v Umphray and Robertson (1890) 17 R 905, 910-911 where the claim was one of libel, the rule that gives that privilege to judges, jurors, counsel and witn......