(first) William Roddie And (second) Spectrum Properties (scotland) Limited Against Associated Newspapers Limited
| Jurisdiction | Scotland |
| Judge | Lord Jones |
| Neutral Citation | [2015] CSOH 30 |
| Court | Court of Session |
| Published date | 26 March 2015 |
| Year | 2015 |
| Date | 26 March 2015 |
| Docket Number | A62/10 |
OUTER HOUSE, COURT OF SESSION
[2015] CSOH 30
A62/10
OPINION OF LORD JONES
In the cause
(FIRST) WILLIAM RODDIE and (SECOND) SPECTRUM PROPERTIES (SCOTLAND) LIMITED
Pursuers;
against
ASSOCIATED NEWSPAPERS LIMITED
Defenders:
Pursuers: Henderson; BLM
Defenders: Dunlop QC; Gillespie Macandrew LLP
26 March 2015
Introduction
[1] This is a defamation action. The defenders are the owners and publishers of the “Scottish Mail on Sunday” newspaper (“the newspaper”). On page 45 of the newspaper’s edition of 12 January 2014, the defenders published the following article:
[2] The following averments are made on behalf of the pursuers:
“The main theme of the article was to suggest that, in the wake of the forthcoming Commonwealth Games in Glasgow, public money was being handed out to companies that did not deserve it. The central complaint was that this money was handed out to the second pursuers who were run by the first pursuer who had a criminal background. The named complainer was a councillor who had a past history of encouraging irresponsible press articles. In the defenders' article it is said that he raised concerns ‘six years ago’. In fact his concerns were contained in an article written in the News of the World newspaper. On page 37 of the print edition of 1st November 2009 the News of the World published an article of and concerning the pursuer. That article contained the headline ‘Fury over Halls Bid by jailed Fraudster.’ There were two sub headlines namely ‘Fury over halls bid by fraudster’ and ‘Councillor slams William Roddie's property plan.’ The pursuer sued the publishers and accepted an ‘Offer of amends’. He received substantial damages.” (Article II of the condescendence)
[3] The pursuers aver that the terms of the article “were false and calumnious”. “The plain meaning of the article”, they say, “was that the first pursuer was a convicted fraudster who continued in criminal enterprise.” The averments continue in the following terms:
“In the headline and first sentence of the print edition of the article there is reference to the first pursuer as a ‘fraudster’. The allegation was that he is a fraudster and not merely that he has been convicted of the crime in the past. In the fourth paragraph there was reference to his conviction and it was repeated in the caption under the photograph. In addition the article contained a complaint regarding ‘public money being handed out to people with a criminal background.’ The picture created by the article was that the first pursuer was running his company as a vehicle for committing further fraud on the public purse; that he had caused the company to conduct itself in an irregular manner and that the auditors had resigned as a result.” (Article III of the condescendence)
[4] The pursuers aver that the terms of the article were false and calumnious also “in so far as it is related to the second pursuers.” The averments continue as follows:
“The plain meaning of the article was that the second pursuers were not a company to do business with: they were run by a fraudster which rendered them a poor credit risk and their auditors had resigned in suspicious circumstances.” (Article IV of the condescendence)
In article V of the condescendence, the pursuers aver: “The articles contained unqualified assertions of guilt.”
Submissions for the defenders
[5] The case came before the court for discussion on the procedure roll on 4 February 2014. Senior counsel for the defenders moved the court to dismiss the action. He submitted that it is settled law that it is for the pursuer in a defamation action to aver on record the meaning of the words complained of that he contends for. If such meaning cannot be drawn from the words used, the claim is irrelevant. It is not open to the court to draw another meaning. In support of that proposition, counsel referred to Russell v Stubbs Ltd 1913 SC (HL) 14 (“Russell”). At page 20 of the report, Lord Kinnear describes the relevant law as “perfectly well settled”. “Before a question of libel or slander is submitted to the jury”, said his lordship, “the court must be satisfied that the words complained of are capable of the defamatory meaning ascribed to them. That is a matter of law for the court.” At page 22, his lordship observed that, if the meaning contended for by the pursuer “cannot be sustained as he states it, it is not for the court to discover some other ground which he has not found out for himself”. Lord Shaw of Dunfermline agreed with Lord Kinnear that it is for the pursuer to aver the meaning which he alleges that the words complained of bear and said that the test is this: “is the meaning sought to be attributed to the language alleged to be libelous one which is a reasonable, natural, or necessary interpretation of its terms?” (Page 23) Counsel referred, also, to James v Baird 1916 SC (HL) 158 in which Earl Loreburn and Lord Kinnear both said that is the duty of the pursuer to state on record what he undertakes to show is the true meaning of the writing complained of, taken as a whole. (Pages 163 and 165-166)
[6] Counsel referred next to MacLeod v News quest (Sunday Herald) Ltd 2007 Rep LR 5 in which Lord McPhail conducted an analysis of a number of authorities bearing upon the meaning of the words “reasonable, natural, or necessary” as they are used by Lord Shaw of Dunfermline in Russell. In the course of doing so, his lordship adopted the following views of Lord Macfadyen in McCann v Scottish Media Newspapers Ltd, 2000 SLT 256, at page 261:
“These terms are not synonyms, and I take the view that a reasonable interpretation would be relevant, even if it was not the meaning which the article complained of necessarily bore. When the matter is one of inference, it is the inference of the reasonable person that forms the test … It is not… a matter of how the words were actually ‘intended to be construed’. Rather the issue is objective: whether the circumstances ‘provide grounds for a reasonable inference’ that the meaning contended for was intended … Any ‘strained and sinister’ interpretation is to be left out of account … as is the inference that might be drawn by the ‘unusually suspicious’ person … ” (Citation of authority omitted)
Lord McPhail went on to quote what is described as “valuable practical guidance consistent with Lord Macfadyen’s approach”, which is to be found in the judgment of Neill LJ in Gillick v British Broadcasting Corporation [1996] EMLR at pages 272-273, in these terms:
“(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once.
(2) The hypothetical reasonable reader (or viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.
(3) While limiting its attention to what the defendant has actually said or written the court should be cautious of an over-elaborate analysis of the material in issue.
(4) A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.
(5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court are entitled (if not bound) to have regard to the impression it made on them.
(6) The court should not be too literal in its approach.
(7) A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally.”
[7] Counsel then turned to the pleadings. He noted that, on page 7 of the record in article III of the condescendence, it is averred on behalf of the pursuers: “The plain meaning of the article was that the first pursuer was a convicted fraudster who continued in criminal enterprise. In the headline and first sentence of the print edition of the article there is a reference to the first pursuer as a ’fraudster’. The allegation was that he is a fraudster and not merely that he has been convicted of the crime in the past.” Counsel drew attention to the fact that, on page 9B-C of the record, the defenders aver that the article did represent that the first pursuer was a convicted fraudster, adding that it did so accurately, the pursuer having been convicted of fraud and sentenced to a period of imprisonment in the 1990s. In what counsel argued was effectively an admission of that averment, at page 13B-C of the record, the pursuers aver: “Whilst the first pursuer was convicted of the crime referred to in the article that conviction falls to be regarded as spent within the meaning of the Rehabilitation of Offenders Act, 1974 [“the 1974 Act”].”
[8] It was submitted on behalf of the defenders that the article did not bear the meaning contended for in respect of the first pursuer. It was said, in terms, that he was a convicted fraudster, but that is true. It was not said that he “continued in criminal enterprise”, and the words which were used could not be said reasonably, naturally or necessarily to bear that meaning.
[9] Counsel further contended that the article did not bear the meaning attributed to it in respect of the second pursuers, as recorded in paragraph [4] of this opinion. There is no dispute, he argued, that the first pursuer has a conviction for fraud, nor that the auditors had resigned. The second pursuers are not described as being a poor credit risk or that they were a poor credit risk because they were...
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