Mitchell v. Smith [1919] ScotLR 578 (16 July 1919)

Mitchell v. Smith [1919] ScotLR 578 (16 July 1919)

The pursuer's averments, when strictly scrutinised, were sufficient to entitle him to a jury issue on malice, as they went beyond a bare assertion of knowledge of falsity and included specific facts such as lack of inquiry, no intention to prove, and use for intimidation. The privilege attaching to judicial pleadings can be overcome where such facts and circumstances are averred.

Citation
[1919] ScotLR 578
Parties
Pursuer: Robert Mitchell; Defender: Edwin G. Smith
Jurisdiction
Scotland
Judgment Date
16 July 1919
Procedural Posture
Civil / Appeal From Dismissal of Action for Judicial Slander
Outcome
Interlocutor of the Lord Ordinary recalled; first plea-in-law for the defender repelled; cause remitted to the Lord Ordinary to proceed.
Legal Topics
Judicial Slander, Qualified Privilege, Malice, Averments of Malice, Reparation
Tort Defamation Judicial Slander Qualified Privilege Malice Averments of Malice Reparation

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Parties

Robert Mitchell

Pursuer

Edwin G. Smith

Defender

Procedural Posture

Civil / Appeal From Dismissal of Action for Judicial Slander

Legal Issues

  1. 1 Whether the pursuer's averments were sufficient to infer malice and overcome the privilege attaching to statements made in judicial pleadings.
  2. 2 Whether a bare averment of knowledge of falsity is sufficient to entitle the pursuer to a jury issue in judicial slander.

Ratio Decidendi

The pursuer's averments, when strictly scrutinised, were sufficient to entitle him to a jury issue on malice, as they went beyond a bare assertion of knowledge of falsity and included specific facts such as lack of inquiry, no intention to prove, and use for intimidation. The privilege attaching to judicial pleadings can be overcome where such facts and circumstances are averred.

Court Disposition

Interlocutor of the Lord Ordinary recalled; first plea-in-law for the defender repelled; cause remitted to the Lord Ordinary to proceed.

Orders

  • Recall of the Lord Ordinary's interlocutor dismissing the action.
  • Repelling the defender's first plea-in-law.