Allan Mackenzie Nicol V. (first) Caledonian Newpapers Limited And (second) Allan Caldwell

CourtCourt of Session
JudgeLady Paton
Publication Date11 April 2002
Date11 April 2002

OUTER HOUSE, COURT OF SESSION

OPINION OF LADY PATON

in the cause

ALLAN MACKENZIE NICOL

Pursuer;

against

(FIRST) CALEDONIAN NEWSPAPERS LIMITED and

(SECOND) ALLAN CALDWELL

Defenders

________________

Pursuer: Bovey, Q.C.; Devlin; Lindsays S.S.C. (for O'Donnell Vaughan, Solicitors, Glasgow)

Defenders: Jones Q.C.; Ellis; Balfour & Manson (for Bannantyne, Kirkwood, France & Co, Solicitors, Glasgow)

11 April 2002

Judicial Proceedings (Regulation of Reports) Act 1926

[1]The long title of the Judicial Proceedings (Regulation of Reports) Act 1926 (c.61) is in the following terms:

"An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals."

Thereafter the Act provides:

"1. RESTRICTION ON PUBLICATION OF REPORTS OF JUDICIAL PROCEEDINGS. - (1) It shall not be lawful to print or publish, or to cause or procure to be printed or published -

    • in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
    • in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or [an action of adherence or of adherence and aliment], any particulars other than the following, that is to say:-
      • the names, addresses and occupations of the parties and witnesses;
      • a concise statement of the charges, defences and countercharges in support of which evidence has been given;
      • submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
      • the summing-up of the judge and the finding of the jury (if any) and the judgement of the court and observations made by the judge in giving judgement:

Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.

(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding five hundred pounds, or to both such imprisonment and fine:

Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act ...

(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions..."

Press report of a divorce action

[2]In 1996, the pursuer was a party to a divorce action. On 10 September 1996, an article appeared in the Evening Times newspaper, published by the first defenders. The article had been written by a journalist, the second defender. As the pursuer avers in his pleadings, the article "purported to be an account of proceedings in a proof in [the] divorce action at the instance of the pursuer's wife which had been heard at Glasgow Sheriff Court ... Said article was intended to and did defame the pursuer in that it contained allegations that the pursuer had assaulted his wife on several occasions, a suggestion that he was evading his responsibility to his children, and an allegation that he was a liar ...". The article did not mention the pursuer's opening statement to the sheriff to the effect that, although the merits of the divorce action were not being contested, the allegations made by the pursuer's wife were not accepted by him as true. Furthermore, the article was published before the sheriff had made findings-in-fact and issued his judgement.

Action for defamation

[3]In July 1997, the pursuer raised the present action for defamation, seeking damages against the first defenders as publishers of the Evening Times newspaper, and against the second defender, the journalist involved. The first and second defenders combined to lodge one set of defences.

Defence of qualified privilege

[4]The defenders' fifth plea-in-law is in the following terms:

"5. The article being a fair and accurate report of court proceedings to which qualified privilege attaches, the defenders should be assoilzied."

In support of that plea-in-law, the defenders aver in Answer 2, at page 13E-14A:

"In any event, esto the allegations contained in the article are false and defamatory of the pursuer (which is denied) the article was a fair and accurate report of proceedings in court and as such covered by qualified privilege. The defenders did not publish the article maliciously."

[5]For his part, the pursuer avers that the writing and publication of the article was malicious. In Article 4 of Condescendence, the pursuer offers to prove that his wife was friendly with a colleague of the second defender, and that his wife arranged for the attendance of the second defender in court. He further offers to prove that the article went far beyond the boundaries set by the Judicial Proceedings (Regulation of Reports) Act 1926; that despite the second defender's attention having been drawn to the contents of the 1926 Act, he persisted in his detailed reporting of the case; that it was malicious not to report the pursuer's opening statement to the sheriff that although the merits of the divorce action were not being contested, the allegations made by his wife were not accepted by him as factual; that the article was published in advance of the sheriff's judgement; and that in all the circumstances the publication of the article was malicious.

[6]In response, the defenders aver in Answer 4, at page 16F-18C:

"4. Admitted that the publication of details of evidence in divorce cases is prohibited by the Judicial Proceedings (Regulation of Reports) Act 1926 which restricts the reporting of divorce actions. Admitted that in terms of section 1(b) of said Act the reporting of such proceedings is restricted to reporting the names, addresses and occupations of parties and witnesses; a concise statement of the charges, defences and counter-charges in support of which evidence has been given; submissions on points of law and matters relating to the judgement of the court. Admitted that the article reported details of the evidence given. Admitted that the article was published in advance of the sheriff's judgement in the case and accordingly without the benefit of the court's adjudication on the evidence led. Quoad ultra denied. Explained and averred that the proceedings between the pursuer and his wife were newsworthy. As hereinbefore averred the pursuer's wife was alleging that [he] had been violent towards [her]. The pursuer himself was a former procurator fiscal, who had been required to prosecute offenders for crimes including assault. In court the pursuer had not contradicted his wife's evidence that he had used violence towards her or that he had made false representations to the Child Support Agency. He also made the specific admissions referred to in Answer 2 above. There was a legitimate public interest therefore in the reporting of the proceedings."

Debate

[7]During a three-day debate, on 5 October and 14 December 2001, and 1 February 2002, counsel for the pursuer invited the court to sustain the pursuer's third plea-in-law, which was in the following terms:

"3. Said article not having been fair nor accurate as condescended upon and publication thereof, being in breach of the Judicial Proceedings (Regulation of Reports) Act 1926, not having been for a legitimate purpose, the defenders are not entitled to rely on the defence of qualified privilege and the defenders' averments relating thereto should not be remitted to probation."

Quoad ultra, counsel for the pursuer sought a proof before answer.

[8]By contrast, counsel for the defenders sought a jury trial. Counsel invited the court to repel the defenders' first two pleas-in-law (relating to relevancy and specification), and the pursuer's third plea-in-law (quoted above), and to allow issues.

Submissions for the pursuer

Defence of qualified privilege not open to the defenders as a result of their breach of the 1926 Act

[9]Senior counsel for the pursuer submitted that the averments relating to qualified privilege were irrelevant, and should be excluded from probation. It was for the defenders to show that their report was fair and accurate: Pope v. Outram & Co., 1909 S.C. 230, at page 235; Cunningham v.The Scotsman Publications Ltd., 1987 S.L.T. 698 at page 699. As the article was a violation of the 1926 Act, the defence of qualified privilege was not open to the defenders. An essential prerequisite of the defence of qualified privilege was that the news report had been lawfully published: Richardson v. Wilson (1879) 7 R. 237, the Lord President at pages 241-242, also dicta of Lord Deas, Lord Mure, and Lord Shand. A report published in breach of the 1926 Act was by definition unlawful: Moynihan v. Moynihan [1997] 2 F.C.R. 105, Sir Stephen Brown. The pursuers could not seek the protection of the court for such unlawful conduct: Gatley, Libel and Slander, 8th ed. paragraph 596; 9th ed. paragraph 14.88; and Professor Walker, Delict, 2nd ed. page 834, note 80. The plain terms of the 1926 Act permitted only specified matters to be published, and the defenders' article went beyond these matters, extending to accounts of the evidence. The Act set out, in section 1(1)(b)(i)-(iv), the way in which publication of reports was...

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