ADAMS v GUARDIAN Newspapers Ltd
| Jurisdiction | Scotland |
| Judgment Date | 07 May 2003 |
| Date | 07 May 2003 |
| Docket Number | No 32 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Reed
Defamation - Veritas - Parliamentary privilege - Fair comment - Qualified privilege
Process - Ethics of pleading - Basis upon which pleader may make averments of fact
Process - Standard of pleading required in defence of veritas and other serious allegations as to conduct
A newspaper printed an article alleging that a Member of Parliament had accused the pursuer, also an MP, of leaking a suicide letter of a third MP. At procedure roll, the newspaper argued that: (1) the suicide note was intended by the deceased to be published and was not confidential and accordingly the article was not defamatory; (2) the pursuer's averments of damage were irrelevant in respect of certain inconsistencies; (3) a letter of complaint made by one MP to another about the conduct of a third attracted parliamentary privilege; (4) the article was fair comment; (5) veritas; and (6) qualified privilege.
Held that: (1) the issue was whether the imputation contained in the words complained of would tend to affect the pursuer adversely in the estimation of others; the truth or otherwise of the imputation was not germane to that question and the falseness of a defamatory imputation did not deprive it of its defamatory character (p 428D); (2) the words complained of were capable of bearing a defamatory meaning (p 428F-H); (3) there was no inconsistency in relation to the averments of damages (p 429H); (4) the plea of parliamentary privilege failed as there was no suggestion that the suicide letter related to parliamentary business or proceedings (p 434D-F); (5) the defence of fair comment did not arise as the article did not contain an expression of opinion (p 435H-I); (6) whereveritas is pled as a defence in defamation proceedings (as in other contexts where serious allegations are made about conduct) the court expects the averments to be specific, and in the present case they were not (p 438B-D); (7) the speech of Lord Nicholls inReynolds v Times Newspapers Ltd gave authoritative guidance as to the defence of qualified privilege in Scots law as well as English law (pp 443I-444B); (7) the action would not be dismissed on the basis that the occasion was privileged as it was impossible to draw from the pursuer's averments that the standard of responsible journalism had been satisfied (pp446I-447A); (8) the court required to make sensitive judgments about the conduct of journalists which might be influenced by the flavour of the evidence and a fuller understanding of the factual context, and it was premature to reach a view on the defence of qualified privilege without hearing evidence (p 447B-D); and defenders' pleas in law as toveritas, fair comment and parliamentary privilege repelled and certain averments excluded from probation and proof before answerallowed on remaining averments.
Reynolds v Times Newspapers LtdELR [2001] 2 AC 127applied.
Observed that it was a fundamental principle of the ethics of advocacy in Scotland that counsel or a solicitor must have a proper basis for stating a fact in any pleadings, and the practice of the courts was based on an expectation that that principle was respected (p 437F).
IRENE ADAMS raised an action for defamation against Guardian Newspapers Ltd.
The full facts and averments of parties appear sufficiently from the opinion of the Lord Ordinary (Lord Reed).
The cause called before the Lord Ordinary for a hearing on the procedure roll.
Cases referred to:
A v United Kingdom, (2003); 36 EHRR 51
Adam v WardELR [1917] AC 309
Al-Fagih v H H Saudi Research and Marketing (UK) Ltd [2002] EMLR 13
Allason v Haines [1996] EMLR 143
Anderson v Hunter (1891) 18R 467
Attorney General of Ceylon v de LiveraELR [1963] AC 103
Blackshaw v LordELR [1984] QB1
Bruce v Leisk (1892) 19R 482
Cordova v Italy (Nos 1 and 2), ECtHR, 30 January 2003, unreported
English v Hastie Publishing Ltd, QBD, 31 January 2002, unreported
GKR Karate (UK) Ltd v Yorkshire Post Ltd [2000] EMLR 410
Hamilton v Al FayedELR [2001] 1 AC 395
James v Baird 1916 SC (HL) 158
Hayford v Forrester-PatonENR 1927 SC 740
Horrocks v LoweELR [1975] AC 135
Kearns v General Council of the BarUNK [2003] EWCA Civ 331
Lange v Atkinson [2001] 1 NZLR 257; [2000] 3NZLR 385
Lewis v Daily Telegraph LtdELR [1964] AC 234
London Artists v LittlerELR [1969] 2 QB 375
London Association for Protection of Trade v Greenlands LtdELR [1916] 2 AC 15
Loutchansky v Times Newspapers LtdELR [2002] QB 321
Loutchansky v Times Newspapers Ltd (Nos 2-5)ELR [2002] QB 783
MacIntyre v Chief Constable of Kent [2003] EMLR 9
Macleod v Marshall (1891) 18R 811
Mark v Associated Newspapers Ltd [2002] EMLR 38
Paul v Cheng [2001] EMLR 777
Paul v Jackson (1884) 11R 460
Prebble v Television New Zealand LtdELR [1995] 1 AC 321
R v Parliamentary Commissioner for Standards, ex parte FayedWLR [1998] 1 WLR 669
Reid v Coyle (1892) 19R 775
Reynolds v Times Newspapers LtdELR [2001] 2 AC 127
Rivlin v BiliankinELR [1953] 1 QB 485
Rost v EdwardsELR [1990] 2 QB 460
Sim v Stretch [1936] 52 TLR 669
Telnikoff v MatusevitchELR [1992] 2 AC 343
Textbooks referred to:
Limon, D W, and McKay, W R,Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22nd ed, Butterworths, 1997) pp 93-96
Mitchell, J D B,Constitutional Law (2nd ed, Scottish Universities Law Institute/W Green, 1968) pp 124-125
At advising, on 7 May 2003 -
LORD REED -
[1] In July 1997 Mr Gordon McMaster, the Member of Parliament for Paisley South, committed suicide. The pursuer was at the time (and remains) the Member of Parliament for Paisley North. She and Mr McMaster were colleagues in the Labour Party, and were also close friends. On 4 April 1998 the Observer newspaper, which is published by the defenders, printed in its Scottish edition an article by its Scotland Editor, Mr Dean Nelson, under the headline: 'Graham accuses rival MP of "leaking" suicide letter'. The article was in the following terms:
'Paisley North MP Irene Adams leaked confidential details of Gordon McMaster's suicide letter to Prime Minister Tony Blair, according to her bitter rival, the West Renfrewshire MP Tommy Graham.
His claim is the first of a series threatened by the MP after his explusion from the Labour Party last month. It will cause dismay among party leaders who hoped he would go quietly. They fear that a prolonged legal challenge over his explusion and a return to internecine warfare in Paisley will cast a long shadow over their Scottish Parliament election campaign next May.
Solicitors acting for Graham will start preparing a case for a judicial review of the decision to expel him when the MP returns from holiday on Tuesday. They had been waiting to receive a detailed explanation from the party's National Constitutional Committee.
Graham has confirmed he will also begin libel actions against two newspapers and launch his own Website to chronicle his campaign by the end of the month.
McMaster, the Paisley South MP, was found dead in the garage of his Johnstone home in July last year. He had committed suicide by inhaling exhaust fumes. A number of suicide notes were discovered, typed on his home computer, which accused Graham and fellow MP Don (now Lord) Dixon, a councillor and a local newspaper reporter, of mounting a whispering campaign against him.
One of the letters, addressed to Blair, Scottish Secretary Donald Dewar and then Chief Whip Nick Brown, was taken by Adams, a friend of McMaster, but was selectively leaked to theDaily Mail and Scotland on Sunday before being delivered by hand to the Chief Whip.
Brown confirmed the letter had been leaked before it was handed to him to pass to Blair, but emphasised that "no copy of the note was leaked by the Government".
Graham was suspended from the Parliamentary Labour Party after the Prime Minister ordered an investigation into the affair by Brown. According to Graham, Brown told him he would soon be cleared and his suspension lifted during a meeting at Graham's MP's home.
Graham said he was also told that the letter had been leaked before being passed to Blair. "Nick Brown told us that the two newspapers had 'cherry-picked' the suicide letter and assured us that the Prime Minister had not received the letter until after the newspaper articles appeared. Irene Adams took the letters to London herself. There is no way Gordon's family leaked the letter and no way the Prime Minister was involved", Graham told The Observer.
He said he believed Adams had waged a campaign against him because he had not supported her in the selection contest to fight Paisley North after the death of her husband and because his agent stood against her.
Adams denied she had leaked the letter. "The letter had been left on the window of his [McMaster's] car. I took the letter to the Chief Whip three days after [his death]", she said.
Graham was eventually cleared of any responsibility for McMaster's suicide but remained suspended after new allegations that he tried to smear Adams.'
[2] In the present action, the pursuer seeks to recover damages from the defenders for defamation. The action came before me at a hearing on Procedure Roll, at which both parties sought to have certain preliminary pleas sustained or repelled.
[3] Counsel for the defenders invited me in the first place to sustain the defenders' general plea to the relevancy of the pursuer's averments, on the ground that the words complained of were not defamatory and were not capable of bearing a defamatory meaning. Counsel submitted that whether it was defamatory to state that a person leaked a confidential document depended on whether the document was in fact confidential. In relation to the latter point, counsel drew my attention to an admission made by the pursuer in her pleadings:
'Admitted that the [suicide] note was addressed to a number of people, including the deceased's...
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