John and George Taylor - Jeffre - R. Bell v. Archibald Swinton, W. S. - A. Wood [1824] UKHL 2_Shaw_245

UKHL
John and George Taylor - Jeffre - R. Bell v. Archibald Swinton, W. S. - A. Wood
[1824] UKHL 2_Shaw_245
Lords Craigie and Cringletie .

Subject_ Slander — Reparation. —

Circumstances in which (affirming the judgment of the Court of Session) an action of damages, founded on alleged slanderous expressions made use of in judicial proceedings, was sustained.Mr Archibald Swinton , writer to the signet, having been employed as agent for some of the creditors of the York Buildings Company, in the various proceedings that took place in Scotland for the division of their funds; and the late Mr John Taylor, writer to the signet, having been employed in the same capacity for other creditors—Mr Swinton, in 1811, and after the death of Mr Taylor, published a pamphlet or statement, addressed to the creditors in general, in which he represented, that Mr Taylor was accountable to them for large sums; and in which, after suggesting that the creditors should take joint measures for bringing Taylor to an account, he represented, that the creditors need not be afraid that they would run any risk of involving themselves in any unprofitable expense, for he “begs it to be distinctly understood, that the concurring

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In the course of these proceedings, language of a very intemperate nature had been made use of by the appellants against Mr Swinton; and it was alleged, that he had retorted in a mode equally as offensive. After the petition and complaint was dismissed, (and which it was alleged by Mr Swinton had been extensively circulated by the appellants extrajudicially), he brought an action of damages against them, in which he set forth, “that the defenders, contriving, and most wickedly and maliciously intending to ruin, if they could, the pursuer's character and reputation, not only with his employers, the creditors of the York Buildings Company, but with the Lords of Council and Session, and with the public in general, and to bring him into public infamy and disgrace, by causing it to be suspected and believed, that, by preparing and communicating the statement

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and most wickedly and maliciously intending to ruin, if they could, the pursuer's character. Whether this be true or not, the Lord Ordinary knows not, and it is not his province to try it; but, if it be true, he considers it is of no consequence whether it was done in the course of judicial pleadings or not, except, that being done in a court of justice, whose part it is to protect the innocent, it is an aggravation of the offence. And Mr Swinton further libels, that the injury was increased by the defenders not even confining their libel to that Court, but by their publishing it wherever they could.”
“It may be true and quite proper, that rash and injurious words, either spoken or written, but particularly when spoken by an advocate in the course of his pleading for his client, and when not irrelevant to the matter at issue, nor maliciously spoken or written, should not be actionable; but the Lord Ordinary considers, that even the character of a Counsel does not protect him if malice be at the bottom, and the inductive cause of his pleadings; and far less will the client himself be protected, when he maliciously and falsely (indeed wilful falsehood implies malice) instigates his Counsel to lay before a court of justice a false and malignant charge against an individual; and this is the doctrine quoted by Messrs Taylors themselves in page 14. of their memorial.
But this is just what Mr Swinton libels. He libels an injury; and that this was inflicted by the Messrs Taylors contriving,

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The appellants having reclaimed, the Court, on the 8th June 1821, adhered. *

They then entered an appeal to the House of Lords, in which they maintained, that as the action which they originally raised against Mr Swinton, in the form of a petition and complaint, was undoubtedly competent, and had only been dismissed in hoc statu; and as that complaint rested upon the foundation, that the statements contained in Mr Swinton's pamphlet were false and malicious, and had been made for the improper purpose of inducing creditors to employ him to raise actions against the appellants, they were entitled to bring before the Court the various motives by which he had been influenced, and to characterize them and his whole conduct in language as strong as they thought fit, seeing that these motives were pertinent to the issue, which was, whether he had been guilty of propagating the libellous falsehoods, inciting parties to litigation, and mendicating employment; and that they were the more entitled to do so, as Mr Swinton not only attempted to maintain the truth of his allegations, and the justifiable nature of his conduct, but made use of expressions against them of a calumnious nature, which he must have been aware would not be submitted to, and could have the effect only to produce retaliation. They therefore contended, that at least so far as regarded the statements which had been made in judicio, and which had not been ordered to be expunged by the Court, and which must consequently be considered as having been held to be pertinent, and not liable to objection, the action at Mr Swinton's instance was irrelevant, and ought to be, dismissed.—On the other hand, Mr Swinton contended, that as his charge against the appellants was, that under the pretence and semblance of a judicial proceeding, which had been dismissed, they had wickedly and maliciously slandered

Footnote

* See 1. Shaw and Ballantine, No. 71.

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The House of Lords ordered and adjudged, “that the appeal be dismissed, and the interlocutors complained of affirmed; and it is further ordered, that the cause be remitted back to the Court of Session, to do therein as may be just and necessary.”Appellants' Authorities .—6. Bacon's Abridg. 199. 244, 245.; Hodson and Scarlett, 1818, (Barn, and Ald. 232.); 3. Dow, 377.Solicitors: C. Berry— A. Mundell, —Solicitors.

(Ap. Ca. No. 47.)