Craig Moore V. The Scottish Dialy Record And Sunday Mail Limited
| Jurisdiction | Scotland |
| Judge | Lady Paton |
| Neutral Citation | [2007] CSOH 24 |
| Court | Court of Session |
| Date | 07 February 2007 |
| Docket Number | A613/05 |
| Published date | 07 February 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 24 | |
| A613/05 | OPINION OF LADY PATON in the cause CRAIG MOORE Pursuer; against THE SCOTTISH DAILY RECORD AND SUNDAY MAIL LIMITED Defenders: ________________ |
Pursuer: A. Smith, Q.C., Clark; Harper Macleod, LLP
Defenders: Jones, Q.C., R.W. Dunlop; Balfour & Manson
(for Levy & McRae, Solicitors, Glasgow)
7 February 2007
Inaccurate press report about professional footballer[1] The pursuer is a well-known professional footballer. The defenders are proprietors of the Scottish Daily Record and the Sunday Mail newspapers. On 4 January 2005, the defenders published an article in the Scottish Daily Record, describing how the pursuer had allegedly racially abused a taxi driver. It was in fact a case of mistaken identity: the pursuer was not involved in any such incident. The defenders accepted that they had made a mistake, and ultimately accepted that the article was defamatory of the pursuer.
Defenders' offer of amends[2] The defenders adopted the "Offer to make amends" procedure contained in sections 2 to 4 of the Defamation Act 1996 (made applicable to Scotland, with the exception of section 3(8), by section 18 of the Act). Thus on 7 June 2005, the defenders made an unqualified offer of amends in terms of section 2. Section 2 defines such an offer as an offer in writing "(a) to make a suitable correction of the statement complained of and a sufficient apology to the aggrieved party; (b) to publish the correction and apology in a manner that is reasonable and practicable in the circumstances; and (c) to pay to the aggrieved party such compensation (if any), and such costs, as may be agreed or determined to be payable". Section 3(3) provides that, if parties agree on the steps to be taken in fulfilment of the offer, the aggrieved party may apply to the court for an order that the other party fulfil his offer by taking the steps agreed. Section 3(4) provides that, if parties cannot agree on the steps to be taken by way of correction, apology, and publication, the party who made the offer may take such steps as he thinks appropriate, and may in particular (a) make the correction and apology by a statement in open court in terms approved by the court, and (b) give an undertaking to the court as to the manner of their publication. In terms of section 3(5), if parties cannot agree on the amount of compensation, the court determines the compensation "on the same principles as damages in defamation proceedings". Similarly in terms of section 3(6), if parties cannot agree on expenses, the court decides that matter. Section 3(10) provides that all such proceedings are to take place without a jury.
[3] In terms of section 4, an offer of amends provides the defenders with a complete defence to defamation proceedings, provided that the defenders did not publish the article knowing or having reason to believe that the article was both false and defamatory of the pursuer (section 4(3)). Section 4 provides:
"Failure to accept offer to make amends
4. - (1) If an offer to make amends under section 2, duly made and not withdrawn, is not accepted by the aggrieved party, the following provisions apply.
(2) The fact that the offer was made is a defence (subject to subsection (3)) to defamation proceedings in respect of the publication in question by that party against the person making the offer.
A qualified offer is only a defence in respect of the meaning to which the offer related.
(3) There is no such defence if the person by whom the offer was made knew or had reason to believe that the statement complained of -
(a) referred to the aggrieved party or was likely to be understood as referring to him, and
(b) was both false and defamatory of that party;
but it shall be presumed until the contrary is shown that he did not know and had no reason to believe that was the case.
(4) The person who made the offer need not rely on it by way of defence, but if he does he may not rely on any other defence.
If the offer was a qualified offer, this applies only in respect of the meaning to which the offer related.
(5) The offer may be relied on in mitigation of damages whether or not it was relied on as a defence."
[4] Chapter 54 of the Rules of the Court of Session provides machinery for applications made in terms of the Defamation Act 1996 as follows:
"Form of application to court where proceedings have been taken
54.1 - (1) An application to the court under section 3 of the Defamation Act 1996 (which relates to offers to make amends) where proceedings for defamation have been taken shall be by minute lodged in the process of those proceedings.
(2) A minute lodged under paragraph (1) shall set out -
(a) the questions to be determined by the court; and
(b) the contentions of the minuter,
and shall have appended to it a copy of the offer to make amends.
Form of application to court where proceedings have not been taken
54.2 An application to the court under the said section 3 where proceedings for defamation have not been taken shall be by petition presented in the Outer House."
Pursuer's response to the defenders' offer of amends[5] The pursuer responded to the defenders' offer of amends by serving a defamation summons on 7 October 2005. In that summons, the pursuer sought damages of £75,000, narrating the terms of the defamatory article, and the accepted fact that he had not been involved in the incident described. He averred that he had suffered injury to his feelings, standing and professional reputation as a result of the false and calumnious publication. He referred to the distress caused and the adverse comment made by colleagues and members of the public. The summons made no mention of the offer of amends.
[6] The summons was lodged for calling on 1 November 2005. The defenders then had seven days within which to lodge defences in terms of Rule of Court 18.1(2). Moreover they had an important decision to make, as section 4(4) of the 1996 Act provides:
"The person who made the offer [to make amends] need not rely on it by way of defence, but if he does he may not rely on any other defence [italics added]."
Accordingly the defenders had to decide whether to base their defence on their offer of amends, or whether to plead a substantive defence such as fair comment. The defenders chose to rely upon their offer of amends. Their pleadings referred to the offer, which was produced and its terms incorporated. The defenders further narrated the pursuer's response, including inter alia the service of the summons and the lodging of the summons for calling. The defenders finally averred that "the pursuer has rejected the offer of amends".
[7] In adjustments to the pleadings, the pursuer adopted the position that the defenders had impliedly withdrawn their offer of amends, and in any event, that the publication of the article was reckless within the terms of section 4(3) such that the defenders could not rely upon their offer of amends as a defence.
Pursuer's amendment of pleadings, lodging of Minute in terms of Rule 54.1, and withdrawal of section 4(3) argument, on eve of debate[8] The pursuer's third plea-in-law is in the following terms:
"3. The defences being irrelevant et separatim being lacking in specification, they should be repelled and proof restricted to quantum."
The defenders' pleas-in-law include the following:
"1. The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed.
2. The pursuer's averments anent withdrawal of the offer of amends, being irrelevant et separatim lacking in specification, should not be admitted to probation.
3. The pursuer's averments in support of s.4(3) of the Defamation Act 1996, being irrelevant et separatim lacking in specification, should not be admitted to probation ..."
[9] On 11 May 2006 the case was sent to procedure roll to debate those preliminary pleas. A diet was fixed for 8 December 2006.
[10] By Minute of Amendment lodged on 6 December 2006, the pursuer deleted the averments that the offer had been impliedly withdrawn, and substituted the following averments in Article 4 of Condescendence after the words "Quoad ultra denied.":
"Explained and averred that the pursuer intends to accept the offer to make amends. A Minute for the pursuer in terms of which he accepts the said offer will be lodged in process."
[11] At 1600 hours on 7 December 2006, the pursuer lodged in process a Minute "in terms of s.3 of the Defamation Act 1996 and Rule of Court 54.1" craving the court:
"1. To ordain the defenders to make a suitable correction of the defamatory statements referred to in the Closed Record, and a sufficient apology to the pursuer, by publishing the said correction and apology in The Daily Record and giving them equal prominence to the articles complained of by the pursuer.
2. To order the defenders to make payment to the pursuer of the sum of SEVENTY FIVE THOUSAND POUNDS (£75,000) STERLING together with interest thereon at the rate of eight per cent a year from 4 January 2005 until payment.
3. To find the defenders liable to the pursuer in the expenses of process."
[12] The Statement of Facts in the Minute referred to the defenders' offer of amends (which had not been withdrawn); accepted that offer; and defined the questions to be determined by the court as (i) the steps to be taken by way of correction, apology and publication; (ii) the amount to be paid by way of compensation; and (iii) liability for expenses.
[13] Late on 7 December 2006, counsel for the pursuer advised counsel for the defenders that the pursuer would not be insisting upon the argument based on section 4(3) (namely the argument that the publication of the article had been reckless, and that as a result the defenders could not rely upon the offer of amends as a defence to the defamation action).
[14] At debate on 8 December 2006, counsel for the defenders invited the court to sustain the defenders' first...
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