Frances Curran V. Scottish Daily Record And Sunday Mail Limited
| Jurisdiction | Scotland |
| Judge | Morag Wise, Q.C. |
| Neutral Citation | [2010] CSOH 44 |
| Court | Court of Session |
| Published date | 26 March 2010 |
| Year | 2010 |
| Date | 26 March 2010 |
| Docket Number | A952/08 |
| OUTER HOUSE, COURT OF SESSION [2010] CSOH | |
| A952/08 | OPINION OF MORAG WISE, Q.C (Sitting as a Temporary Judge) in the cause FRANCES CURRAN Pursuer; against SCOTTISH DAILY RECORD AND SUNDAY MAIL LIMITED Defenders: ________________ |
Pursuer: McIlvride; Anderson Fyffe LLP
Defender: Dunlop; Balfour and + Manson LLP (for Levy & McRae)
26 March 2010
Introduction
[1] This is an action for damages for defamation. The pursuer is a member of the Scottish Socialist Party ("the SSP") and a Member of the Scottish Parliament ("an MSP"). The defenders are the publishers of the Daily Record and Sunday Mail newspapers. The pursuer's case arises from four pages of articles appearing in the edition of the Daily Record published on 7 August 2006. The articles were said to be based on interviews with Mr Tommy Sheridan. The matter came before me on the procedure roll for discussion of the defenders' first and fifth pleas‑in-law. Mr Dunlop argued for dismissal of the action while Mr McIlvride for the pursuer submitted that the case should be sent to proof before answer.
[2] The headline on the front page of the Daily Record of 7 August 2006 was in the following terms:
"I'll destroy the scabs who tried to ruin me. Tommy vows to win back leadership of Scottish Socialists."
The article on pages 4 and 5 of the newspaper of that date contained a headline "It's me or oblivion" and included photographs of four MSPs, Colin Fox, the pursuer, Rosie Kane and Carolyn Leckie, all members of the SSP. The following are excerpts from the article in question, which was styled in the form of an interview with Mr Sheridan;-
"The MSP, who won £200,000 defamation damages on Friday, is exhausted by the sensational court case and bitter at how the former allies he now calls 'political scabs' turned on him..."
He said
"The last 18 months have been full of personal attacks on my character and slurs on my private life. Individuals with positions of influence within the party have used those positions to try to isolate me as an individual and as a political force..."
He said
"There is no way I could be convener of a party with its apparatus controlled by those who have tried to politically undermine me..."
"I will find it very difficult to continue to be associated with individuals whom I consider collaborators with the enemy, who have become political scabs..."
"I am not in favour of expulsions even though I consider those who lined up with broad smiles on their faces as they entered the court to be political scabs.
When a socialist takes on one of the most ruthless anti-union and anti-socialist empires in the world and wins, you would expect socialists to rejoice.
The fact that some so called socialists have strained their voices in condemnation of me, rather than in jubilation, exposes the level of personal hatred that has infected these people.
I believe there has been a statement issued by three MSPs that they will not work with me. Not speaking to them ever again will not keep me up at night.
But if those individuals have declared they'll no longer work with me politically, they stand exposed as political blackmailers trying to hold their party to ransom..."
Submissions for the defenders
[3] Mr Dunlop explained that the pursuer's claims that she was defamed in the article referred to above arise in the context of the well publicised civil jury trial in Mr Tommy Sheridan's defamation action against News Group Newspapers Limited ("NGNL") who publish the News of the World newspaper. The jury returned their verdict in that trial on 4 August 2006, finding in favour of Mr Sheridan and awarding him damages of £200,000. It is not in dispute that the jury trial and the jury's verdict were reported extensively in the print and broadcast media in Scotland. It is also admitted that the defenders printed a series of articles based on exclusive interviews with Mr Sheridan and that the Daily Record and Sunday Mail newspapers have a wide circulation in Scotland.
[4] Mr Dunlop's motion was to invite me to dismiss the action on the basis that no relevant case of defamation was made out in the pursuer's pleadings, which failing to delete certain averments which he elaborated on as part of his esto position that, were the action to proceed to proof before answer, those deletions would in any event require to be made.
[5] Mr Dunlop's first argument was to the effect that a criticism by an MSP of another MSP does not amount to defamation because of the permitted latitude in criticising those who hold public office. He submitted that it was well settled that the question of whether a specific criticism falls within that latitude is a matter of law for the court to determine at this stage. On the general approach to allegedly defamatory material reference was made to Angus McLeod v News Quest 2007 SCLR 555 at 559. In particular it was emphasised that the article involved must be read as whole and that the test was whether the words used in it tended to lower the pursuer in the estimation of right thinking members of society generally. In doing so the court is entitled to have regard to the impression the alleged defamatory material had on it - Gillick v British Broadcasting Corporation [1996] EMLR 267.
[6] To the general rule Mr Dunlop submitted, must be added the particular situation of those holding public office where greater latitude in relation to criticisms made of them was available. In that context reference was made to McLaughlin v Orr Pollock & Co [1894] 22 R 38, Langlands v Leng 1916 SC (HL) 102 and Mutch v Robertson 1981 SLT 217. Those decisions all supported the contention that criticisms of someone holding public office could not have a defamatory meaning unless they amounted to an imputation of dishonesty or dishonourable behaviour. In Mutch v Robertson the following passage from McLaughlin v Orr Pollock & Co was cited with approval:-
"It is only where private character is attacked, or when the criticism of public conduct is combined with the suggestion of base or indirect motives that redress can be claimed on the ground of injury to reputation."
[7] Turning to the article that forms the basis for the pursuer's claim (lodged at 6/1 of process) Mr Dunlop submitted that, given that the article must be looked at as a whole, it represented an attack on the public and/or political activities of the pursuer and her colleagues. The term "scab" in the article was a reference to the pursuer being a "political scab". Throughout the article the conduct complained of is always referred to as political conduct and was accordingly permissible in accordance with the wide latitude referred to in the authorities above. Mr Dunlop accepted that looked at in isolation, the superimposition of the word "scab" on the pursuer's photograph might be construed as defamatory but there was clear authority to the effect that one could not isolate a potentially defamatory part of such an article and that when looking at the piece as a whole the context was clear - see Charleston v Newsgroup 1995 2 AC 65. Mr Dunlop submitted that if his argument in relation to this first point was accepted he would be entitled to dismissal on that basis alone.
[8] On an esto basis certain other arguments were presented. In particular, Mr Dunlop argued that certain averments within Article 5 of Condescendence were irrelevant. Even if proved, they did not impute defamation. The averments in question appear in Article 5 of Condescendence (page 20D). In essence those averments are to the effect that the pursuer had aligned herself with NGNL during the trial, had assisted them in the litigation between them and Mr Sheridan and that the article misrepresented that the pursuer had given evidence at the jury trial on behalf of NGNL against Mr Sheridan. The question to be asked, Mr Dunlop submitted, was whether it would lower any person in the estimation of right thinking people to be told that someone had given evidence in court. Mr Dunlop accepted that the averments that went to the extent of offering to prove that the article suggested that the pursuer had been giving evidence in furtherance of a plot against Mr Sheridan would be relevant, but those that went only to the alleged act of giving evidence were not.
[9] Further, it was said that in the context of the article the word "scab" was clearly a political comment rather than an assertion of fact. In Article 5 (page 21B of the closed record) the pursuer avers that the term was used as an assertion of fact and not fair comment. If that was so then the only defence that would be open to the defenders was a plea of veritas and not fair comment. This issue raised a question of how one assessed as a fact whether someone was a "scab". It was submitted that used on its own the term made no sense and that it must regarded as comment. Reference was made to Grech v Odhams Press 1958 2 QB 215 in support of the contention that comment is often recognised and distinguished from allegations of fact by the use of metaphor. Further, in Branson v Bower 2001 EMLR 32, there was a trial on a preliminary issue of whether the words in an article complained of were comment or statements of fact. The judge at first instance decided that for the purposes of a defence of fair comment, comment was, "...something that was or could be reasonably inferred to be, a deduction, inference, conclusion, criticism, remark, observation etc." In the Court of Appeal the first instance decision was upheld as the articles concerned appeared to express a series of opinions about the motives of the appellant in a way which would leave the reader in no doubt that they were inferences drawn by the respondent from the facts set out in the article. In this case, argued Mr Dunlop, it was clear from the Daily Record article that it was being said that Mr Sheridan deduced and inferred that the pursuer and others had supported or assisted the News of the World...
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