It was next argued for the defender that the circumstances under which the statement was made afforded an absolute privilege to the defender. His counsel asserted that its contents were in pari casu with evidence given by the defender as a witness in causa . The absolute character of the privilege which the law accords to a witness is established beyond doubt or question, and its grounds are clearly explained by Lord Penzance in a well-known passage of his opinion in Dawkins v. Lord Rokeby , 7 E. and I. App. 744, which is quoted with approval by Lord President Inglis in Williamson, 1890, 17 R. 905. The defender's counsel referred to the recent case of Watson, 1905, 7 Fr. (H.L.) 109, where this privilege was extended to the case of statements made on precognition and not upon oath. But the statement here in question cannot, in my opinion, in any reasonable sense be said to have been given in evidence, or as that of a witness, or an intending witness; and, in my judgment, no absolute privilege attended the occasion of its production in the Sheriff Court.
But an alternative argument was submitted for the defender which I think requires attention. His counsel maintained that the occasion was at all events one importing a qualified if not an absolute privilege; and that, upon that hypothesis, the pursuer's record is radically defective as lacking any sufficient averment of malice upon the part of the defender. The pursuer's counsel argued that there is here disclosed no case of privilege at all; because the statement was not pertinent to any cause, the cause as such having ended when the plea of ‘guilty’ was tendered, and also because the cases decided in regard to civil proceedings are not applicable in relation to a criminal prosecution such as was here instituted against the defender in the Sheriff Court at Lochgilphead. Upon both these points my opinion is adverse to the pursuer. I see no ground for differentiation
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The defender reclaimed, and argued—The statement complained of was not slanderous; it would not support the innuendo. No knowledge of the existence of the disease was imputed in it to the shepherd, and there was consequently no reflection on him. Even had the statement said that he knew, there would have been no reflection. Had it been alleged that he had failed to give notice to some authority to whom there was a duty on his part to give notice, it might have been different, but the failure alleged, if any, was only the omitting to inform his employer. The action was irrelevant, and should be dismissed.
Argued for the pursuer—The facts here were of importance. The pursuer averred that the statement made by the defender was false, and that the defender knew it was false. The statement further attributed to the pursuer a position of responsibility and a consequent duty, viz., the duty placed on “every person having in his possession or under his charge” an animal affected by sheep-scab to report it Diseases of Animals Act 1894 (57 and 58 Vict. cap. 57), section 4 (1) ( b ) and 52—and stated that he had failed in that duty. The innuendo was therefore good, and the issue should be allowed.
Lord President —This is an action to recover damages for an alleged slander uttered under the following circumstances:— The defender was charged in the Sheriff Court at Lochgilphead under the Diseases of Animals Act 1894. Although the actual charge is not set forth, it is clear that what he was charged with was a contravention of section 4 ( b ) of that Act by not having “with all practicable speed” given notice of sheep scab among the sheep in his possession. The defender pleaded guilty, but before sentence was passed handed to the Sheriff a written statement in the form of a letter in these terms.—[His Lordship here read the written statement.] The Sheriff read this letter aloud in Court, and then imposed on the defender a fine of £1.
The pursuer is the shepherd referred to in the letter, and he says he was slandered by the allegations used in the letter about him. The way in which he makes out he has been slandered is that he says the letter contains false, malicious, and calumnious statements about him. He says they were false because he did in fact inform the defender that there was scab among the sheep. That is so far good. But he must also show that the statements were calumnious. He proposes to innuendo the words used in this way, that they “falsely, calumniously, and maliciously represent the pursuer to be a person neglectful of his duties, and unfit and incompetent as a shepherd.” In my opinion, the words in question will not bear such an innuendo, because the only statement
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I have had occasion to remark before that one of the worst uses to which this Court is put is the bringing of trumpery actions of slander. I am unwilling to torture innuendos out of words that do not in any reasonable manner bear the interpretation sought to be put upon them.
I am therefore of opinion that the Lord Ordinary's interlocutor should be recalled and the action dismissed.
On the view I have taken it is unnecessary to deal with the second matter dealt with by the Lord Ordinary in his note.
Lord Kinnear and Lord Pearson concurred.
The Court recalled the interlocutor of the Lord Ordinary and dismissed the action.
Counsel for the Reclaimer and Defender — Cooper, K.C.— Macmillan. Agents— Hamilton, Kinnear, & Beatson, W.S.
Counsel for the Respondent and Pursuer — Crole, K.C.— Ballingall. Agent— W. B. Rainnie, S.S.C.