If you can't say anything nice...

You wait years for an interesting Scottish defamation case, then along come four at once.

This year has already seen not one but two of that highly unusual happening, a Scottish civil jury case in defamation. The publicity, of course, has principally gone to Tommy Sheridan, who won a 7:4 verdict and £200,000 on 4 August when the News of the World’s defence of veritas failed.

In its smaller dimension, solicitor John McCormick’s action against The Scottish Daily Record and Sunday Mail Ltd, arising from his professional involvement in proceedings concerning the De La Salle List D school child abuse cases, was equally successful. The Sunday Mail failed to establish its fair comment defence for using terms such as “smear campaign” and “cover-up”. As in the Sheridan case, on 19 January a (unanimous) jury awarded the whole sum concluded for, in this case £45,000.

Jury trial procedure

In the forest of coverage the Sheridan case received, the press showed a conspicuous indifference to the procedural points arising. Sheridan followed in the footsteps of Winter v News Scotland Ltd 1991 SLT 828 in that the defenders, although leading in proof, as is normal with a veritas defence, were allowed to give their closing speech last. The defenders expressed concerns that Mr Sheridan, as a party litigant, would overstep the mark in his closing speech without their having a right to reply.

Further, the issue ran: “Whether… the pursuer committed adultery [with Fiona McGuire, Anvar Khan and other unnamed individuals], that he was a ‘swinger’, that he participated in orgies, that whilst he claimed to be teetotal he drank champagne; meaning thereby that he was a hypocrite and an abuser of his position of power as a Party Leader.”

The defenders did not accept that someone who drank champagne on occasions whilst saying he was teetotal was necessarily a hypocrite. There was no suggestion that Tommy Sheridan had campaigned against alcohol and purported to be a moral abstainer from it. Thus, they argued, the onus of proof that this meaning was defamatory, and that the allegation about abuse of power had been brought home, rested on the pursuer – with the defenders in the dark as to how he would approach these aspects.

Lord Turnbull, letting the newspaper go second, was influenced by the textbook comment (Hajducki, Civil Jury Trials (2nd ed), para 19.01) that the order of speeches was at the discretion of the presiding judge: “although I accept without hesitation Mr Sheridan’s commitment to keeping within the relevant rules, I cannot ignore the fact that he does not work within the confines of professional responsibility, nor, understandably, is he aware of all of the relevant considerations and limitations. This fact was obvious when one considers the number of occasions on which Mr Sheridan has sought to embark upon illegitimate examination and made suggestions which are evidentially unfounded”.

The defenders also succeeded in persuading the court to allow recall of one of their witnesses, after Mrs Sheridan had suggested in examination-in-chief that the witness had previously claimed to have been offered money by the News of the World.

The impact of party litigants

It will be clear that Mr Sheridan’s status as a party litigant strongly influenced the shape of the hearing. This is of some significance: legal aid being unavailable for most defamation actions – and possibly also because of the types of personalities commonly involved – party litigants are not uncommon. Since the millennium, at least 12 Scottish defamation cases have involved party litigants, almost invariably as pursuers. Given that such cases are themselves rare, this is a remarkable number. The result can be protracted and uncomfortable, if not chaotic. This is no-one’s fault. To refuse party litigants the right to raise defamation actions would be an intolerable denial of justice to the majority who cannot afford Court of Session expenses. Once they are in court, the judge must often, in ordinary fairness, tilt the seesaw in favour of indulging the unrepresented. There is also, in the pragmatic interests of speed and perhaps implicit moral pressure, a tendency for the other side’s lawyers to make the beau geste. This is leaving aside the possible impact on the jury of such an apparently unequal contest between two black gowns and a solicitor, and one underdog.

Such factors loomed large in Sheridan. Lord Turnbull, as has been seen, admitted to not enforcing the rules of admissibility and relevance more than once. He also allowed adjournments for extra preparation time – as directly acknowledged by Mr Sheridan in his closing submission: “Lord Turnbull… despite being aware of my personal disdain of the unfairness and pomposity which I feel oozes from the pores of our court system, has displayed nothing but fairness, respect and courtesy”. The defenders, for their part, provided both a detailed outline of their own closing submissions and style notes of exception to Mr Sheridan.

Framing issues and counter-issues

In both the Sheridan and McCormick trials, there were notes of exceptions challenging the judge’s charge to the jury. The most significant was the News of the World’s, seeking this direction in their favour: “In the issue, the pursuer complains that he has been defamed by the statements that he committed adultery, that he was a swinger, that he participated in orgies and that, whilst he claimed to be teetotal, drank champagne. The meaning put on these statements by the pursuer is that he is a hypocrite and that he is an abuser of his position of power as a party leader. The onus of establishing that any of the statements complained of has that meaning, therefore, lies with the pursuer. There is no evidence before you that would entitle you to hold it proved that any of the statements complained of means that the pursuer is an abuser of his position of power as a party leader. Accordingly I direct you to answer the issue in the negative.”

The defenders said that there was no way in which, for example, adultery with Anvar Khan, or the drinking of champagne, could amount to the meaning that the pursuer was both a hypocrite and an abuser of power. Had Lord Turnbull acceded to this argument, it would have been sudden death to Tommy Sheridan’s case. He declined to do so. In McCormick, it became necessary at the 11th hour to recast the counter-issue so that it mirrored the tetrapartite format of the issue.

Broadly, the drafting lesson seems to be that, for the pursuers, each “sting” of the defamation, together with the meaning to be drawn from it, should be separately considered; and the counter-issue should be framed so as to enable the jury to say a clear yes or no on each point. More generally, these two jury trials, although very different in important respects – there was no attempt to argue in court that John McCormick had acted wrongly – seem to support the deep Celtic melancholy of the Scottish media defender as to the distaste of lay people for the tabloids they buy and the willingness of jurors to accede to the figure claimed in damages.

Points of meaning

Two much lower-key defamation actions – Haikney v Newsquest (Lady Dorrian, 1 June 2006; misspelled “Haickney” on the Scottish Courts website) and Robertson v Newsquest (Lord Reed, 28 June 2006) – are in their way still more interesting.

Haikney: protest movement

Haikney arose out of an Evening Times article concerning protests expected to accompany the G8 conference in July 2005. Mr Haikney was a member of “Reshape Glasgow”, part of the Dissent network. He said he had intended to disrupt the G8, but only in the form of non-violent protest, and had made this clear to the journalist. The resultant article appeared under a headline “Anarchist threats to Glasgow businesses”, with a strap-line “Activist says his group will wreak havoc as protests escalate ahead of the G8 Summit at Gleneagles”. The article spoke of the group as “extremist”, said that Dissent “had been implicated in bloody riots including violent disorder”, and that Dissent had planned to “wreak havoc”. It went on: “However, despite an anarchic manifesto which urges confrontation and civil disobedience, Mr Haikney said members of Re-shape Glasgow were not interested in violent protests”. Another member was also quoted as saying the group was part of a peace movement and did not condone violence, “but I can understand why some people are driven by frustration to do this”. It also reported: “However, Mr Haikney… took offence when we tried to photograph him… [He] swore and lunged at our photographer for clasping a copy of yesterday’s Evening Times”.

Mr Haikney, who claimed £50,000, said the article meant he associated with a violent organisation and was conspiring to commit violent criminal acts. The Evening Times argued that the article meant simply that demonstrations were planned, the pursuer was involved in the planning, and there was a risk of violence. It was a warning to the public that previous similar demonstrations had been marred by violence, not an allegation that the pursuer was conspiring to engineer such violence.

Lady Dorrian accepted that the article was capable of bearing the meaning that the pursuer was associated with violent organisations, but rejected the idea that it could mean that the pursuer was conspiring to commit violent criminal acts: “The article does indeed suggest that violence might erupt from protests which were intended to be peaceful, but that is not the same thing as saying that the pursuer was conspiring and planning violent criminal acts.”

Robertson: the repetition rule

Robertson v Newsquest was brought by Lord Robertson of Port Ellon in relation to a Sunday Herald article, concerning the settlement by the newspaper of a previous defamation action by Lord Robertson. That action had concerned an anonymous contribution to the Sunday Herald’s online reader forum falsely implicating him in the Dunblane tragedy. The parties settled, with Lord Robertson receiving £25,000. Rival newspapers ran “gleeful” and “vitriolic” coverage of the settlement.

The Sunday Herald in turn ran an article headed “Lessons from Robertson’s Victory”, illustrated by photographs of the Scotsman and the Scottish Daily Mail. The Scotsman photograph showed the headline “Robertson sues over Dunblane killer allegations”. The Scottish Daily Mail headline was “NATO chief sues over Dunblane gun lies”. Lord Robertson argued that the first sentence of the photographed Scottish Daily Mail article, “The Head of NATO is suing for £200,000 damages over claims he was responsible for the Dunblane massacre”, was legible.

The publication was a detailed apologia, dealing with the raising of the first proceedings, the media coverage thereof and the circumstances of settlement: namely, they said, that Lord Robertson accepted a £25,000 tender made “to put a ceiling on escalating legal costs”. The Sunday Herald then described the defence they would have run, innocent dissemination under s 1 of the Defamation Act 1996, and discussed the moderation of content by those hosting message-boards and chatrooms. The article noted that the newspaper had immediately apologised to Lord Robertson and taken down the anonymous contribution.

The pursuer argued that the reproduction from the Scottish Daily Mail amounted to repetition of the defamatory allegation. Simply by republishing the sentence containing the allegation, the defenders had fallen foul of the “repetition rule”, i.e. that a person who repeats a libel is equally responsible with his author. It was also claimed that the article had set out by innuendo “to portray the pursuer as an irrational bullying individual who raised spurious proceedings… without delay and in circumstances of [hypocrisy]”.

Lord Reed, deciding for the Sunday Herald, distinguished precedents in which a newspaper was “circulating” a defamatory allegation. In the present case the allegation was mentioned in an article “whose tenor was destructive of any defamatory imputation”. As he pointed out, one could not report an acquittal without conveying that the person had previously been charged with a criminal offence: such a report could not reasonably be understood as impugning the acquitted person. Lord Reed suggested that the “bane and antidote” approach whereby part of the article, if read in isolation, would convey the defamatory imputation, but the remainder of it prevented this, was merely “a particular example of the more general principle that a publication must be considered as a whole”. The Sunday Herald article made it clear that Lord Robertson’s complaint was well founded and had properly been the subject of an apology: “The whole tenor of the article is that the allegation against the pursuer was untrue; and the article cannot reasonably be understood as adopting or repeating that allegation.”

The suggestions that the article showed Lord Robertson as being bullying, hypocritical or inappropriately swift to raise action, were also rejected by Lord Reed: “I do accept that the implication is that the pursuer raised court proceedings without delay. I do not… accept that that implication is capable of being defamatory… Indeed, although such prompt and firm action would be particularly understandable on the part of a person occupying such a prominent position in public life, I cannot imagine that it would be defamatory of anybody to say that he had responded to a damaging allegation by raising legal proceedings 48 hours later.”

The Sunday Herald’s lawyers therefore achieved in this case the seldom-realised dream of the media defender – a knockout victory at debate.

What next?

Are we to conclude that defamation actions are a growth industry? Probably not. Certainly, activity in 2006 in Scotland would be a misleading example, set against the trend of previous years. Some tentative conclusions can, however, be drawn. First, Scottish defamation awards are rising. Secondly, drafting issues or counter-issues is harder than it looks. Thirdly, privacy law (see panel) is the next big spectre for the media, whatever happens to the pure defamation action. 

Privacy and defamation: uneasy bedfellows

An interesting feature of both Haikney and Sheridan was the attempt to conflate privacy and defamation claims. The open record in Haikney contains averments about the pursuer’s having “a legitimate expectation of his right to privacy being respected on his own doorstep”, and to the articles being “written in a manner indifferent to the feelings of the pursuer”, neither of which is, on the face of it, germane to the question whether the publication was defamatory or not. Although the latter point might go to damages, the entire doctrine of fair comment makes it patent that your right to express yourself honestly will in principle trump that of your enemy not to have his feelings hurt.

This point was forcibly made by Lord Turnbull in the different context of his charge to the Sheridan jury, when he touched on the jailing of one of the SSP witnesses, Alan McCombes, for his initial refusal to hand over disputed minutes of a party meeting. (Those interested in privacy law – and Lord Turnbull instructed the jury, “We do not have a law of privacy in this country” – will note that the argument made for not handing over this document, that even the principle of giving confidential material to a commissioner engaged the haver’s privacy rights so that he ought to be able to refuse at least initially, was rejected by Lady Smith on 26 May 2006.) Lord Turnbull said of the witness’s claim that the party’s internal documentation should be private: “How do you obtain exclusive ownership of the truth? Who has the right to deny justice to anyone else?… those sort of arguments merely serve to place personal interest above that of justice and the truth… [The SSP] was treated in exactly the same way as any other owner or possessor of documentation”.

Other privacy-based debates sprang up during evidence. Lord Turnbull asked a young News of the World journalist from the bench, what could possibly be the public interest in doorstepping Gail Sheridan to ask if she had had plastic surgery. The power that spouses of public figures may in fact wield in the latter’s careers was robustly demonstrated in the trial, where the media almost unanimously saw Gail Sheridan as her husband’s trump card. It might well be difficult convincingly to advance an argument about public figures, public interest and hypocrisy in a courtroom full of photocopied articles headlined, “My kinky four-in-a-bed orgy with Tommy”, but there is nonetheless a debate to be had about luxury purchases, image management and the, arguendo, complicitous role of the celebrity spouse, and it is a telling straw in the wind that a judge should make such a genuinely puzzled comment. The matter remained unexamined, although Mike Jones QC did observe in closing that it was in the public interest to expose hypocrisy in high places.

Rosalind McInnes is a solicitor with BBC Scotland