Cunningham v. Skinner [1902] ScotLR 39_727 (19 June 1902)

Cunningham v. Skinner [1902] ScotLR 39_727 (19 June 1902)

The prior action's dismissal did not constitute res judicata, as it was not a decree of absolvitor and did not address the merits. The delay in bringing the action was adequately explained by the pursuer's bankruptcy and lack of access to documents. The pursuer, now discharged and having paid prior expenses, was not required to find caution. The issues were relevant and malice was properly included due to the privileged nature of the statements.

Citation
[1902] ScotLR 39_727
Parties
Pursuer: John Ralston Cunningham junior; Defenders: George Skinner and others
Jurisdiction
Scotland
Judgment Date
19 June 1902
Procedural Posture
Civil / Interlocutory Appeal on Preliminary Pleas and Issues
Outcome
Defenders' preliminary pleas repelled; interlocutor of Lord Ordinary adhered to; issues to proceed to trial with malice included.
Legal Topics
Slander, Privilege, Res Judicata, Mora (delay), Caution for Expenses
Tort Company Law Bankruptcy Slander Privilege Res Judicata Mora (delay) Caution for Expenses

Case Brief

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Parties

John Ralston Cunningham junior

Pursuer

George Skinner and others

Defenders

Procedural Posture

Civil / Interlocutory Appeal on Preliminary Pleas and Issues

Legal Issues

  1. 1 Whether the statements in the memorandum constituted actionable slander against the pursuer.
  2. 2 Whether the action was barred by res judicata due to a prior dismissal.
  3. 3 Whether the action was barred by mora (delay).

Ratio Decidendi

The prior action's dismissal did not constitute res judicata, as it was not a decree of absolvitor and did not address the merits. The delay in bringing the action was adequately explained by the pursuer's bankruptcy and lack of access to documents. The pursuer, now discharged and having paid prior expenses, was not required to find caution. The issues were relevant and malice was properly included due to the privileged nature of the statements.

Court Disposition

Defenders' preliminary pleas repelled; interlocutor of Lord Ordinary adhered to; issues to proceed to trial with malice included.

Orders

  • Issues as adjusted by the Lord Ordinary approved, including malice.
  • Plea of res judicata repelled.