Gordon Coutts Thomson And Mrs. Maria Teresa Thomson V. Sheriff Kenneth Ross And Others
| Jurisdiction | Scotland |
| Judge | Lord Eassie |
| Date | 18 July 2000 |
| Docket Number | O/11 |
| Court | Court of Session |
| Published date | 18 July 2000 |
| OUTER HOUSE, COURT OF SESSION | |
| O/11/6/98 | OPINION OF LORD EASSIE in the cause GORDON COUTTS THOMSON and MRS MARIA TERESA THOMSON Pursuers; against SHERIFF KENNETH ROSS and OTHERS Defenders: ________________ |
Pursuers: First-named pursuer in person
Second named pursuer: Mayer, Fiona Rasmusen, Solicitor
First Defender: R W Dunlop, McGrigor Donald
Second Defender: Smith, Q.C., Young; Morison Bishop
Fourth-Ninth Defenders: Lord Mackay of Drumadoon, Q.C, subsequently Tyre, Q.C., McGregor; Brodies, W.S.
18 July 2000
Introductory
[1]The pursuers in this action of defamation which was debated on the procedure roll are spouses who formerly carried on practice as solicitors in partnership with each other and a third solicitor who is not a party to this action. The partnership came to an end after the Scottish Solicitors Discipline Tribunal on 7 April 1995 found all the partners guilty of professional misconduct and ordered that the names of both of the pursuers be struck off the roll of solicitors in Scotland with effect from the date of the issue of its written findings, which occurred on 5 June 1995.
[2]Nine defending parties have been convened by the pursuers. The first defender was the President of the Law Society of Scotland at the time material to the subject matter of the action (1995). The second defenders are the Law Society of Scotland itself. The third defending party convened by the pursuers was the Scottish Solicitors Discipline Tribunal as such but following the lodging by the pursuers of a Minute of Abandonment respecting the third defenders decree of absolvitor was pronounced in their favour on 21 April 1998. The fourth to ninth defenders are respectively the six individuals who constituted the membership of the Discipline Tribunal which found the pursuers and their partner guilty of professional misconduct on 7 April 1995. The eighth and ninth defenders are the lay members of that Tribunal. For convenience, where the context makes it appropriate I shall refer to the first defender as "the President"; the second defenders as "the Society"; and the fourth to ninth defenders inclusive as "the Members". I shall also refer to the Members collectively as "the Tribunal" where the context also makes that reference appropriate.
[3]The pursuers, along with their partner, appeared before a Discipline Tribunal in October 1994 on a number of charges inferring professional misconduct. After sundry procedure which included the determination of certain preliminary pleas, a hearing before the Tribunal was fixed for 10 January 1995. On that and subsequent dates evidence was led by the procurator (Mr Neilson) prosecuting the Society's complaint, the proceedings being in due course adjourned. It appears that during the interval of that adjournment discussions between the Society's procurator and solicitors acting for the pursuers and their other partner resulted in the procurator's accepting pleas of guilt to some of the several charges, either in amended or unamended form. It is averred by the pursuers, under reference to certain subsequent correspondence, that in accepting those pleas the procurator departed from the allegations of personal fraud or dishonesty by the pursuers contained in certain of the charges. On the resumption of the hearing the Tribunal heard, on 5 and 6 April 1995, submissions from the procurator and the representatives of the pursuers and their partner respecting the pleas of guilt. Thereafter on 7 April 1995 the chairman of the Tribunal pronounced orally the Tribunal's decision. As part of that decision, the Tribunal directed that immediate publicity be given to the decision (transcript, page 12E). The Tribunal also on that date pronounced an interlocutor ordering that the pursuers be struck from the roll of solicitors from the date of its written findings.
[4]Consistently with its direction that immediate publicity be given, the Tribunal on 7 April 1995 issued to the Press a document containing the text of that which had been said by the chairman earlier that day when giving the Tribunal's decision, save that it omitted inconsequential introductory remarks acknowledging the assistance given by the compearing law agents and added the names of the parties, to give meaning to their procedural designations. That document - "the Press release" - is No.6/1 of process.
[5]Following on the giving by the Tribunal of its decision and the issue by it of the Press release, the Society arranged a Press conference which was held on the afternoon of 7 April 1995. It was given principally by the President and in the course of answering questions from those attending he made certain remarks which the pursuers now maintain were defamatory of them.
[6]On 5 June 1995 the Tribunal issued its full written findings (7/10 of process) - the "Findings" - whereupon the pursuers' appealed to the Court of Session respecting the penalty imposed upon them by the Tribunal. That appeal resulted in due course in the quashing of the Tribunal's decision and a remit to a differently constituted tribunal which on 13 October 1999 of new ordered that the pursuers be struck from the roll. The Opinion of the Court quashing the Tribunal's decision was delivered on
12 March 1999 and, endeavouring to summarise its reasoning in the briefest of terms, the reason wherefor the decision was quashed was that as respects one charge, affecting the second pursuer only, (the Marc Williams charge) the Tribunal included in its findings of facts material relevant to that charge upon which the procurator had accepted a plea of not guilty. For completeness it may be recorded that the pursuers have further appealed against the decision of the differently constituted tribunal, which of new ordered their removal from the roll of solicitors on 13 October 1999.
[7]In this action however the pursuers seek payment by the defenders jointly and severally of damages respecting certain passages in the Press release and the Findings and certain remarks made by the President at the Press conference.
The allegedly defamatory statements:-
(a) The Members
[8]Given that the delivery by the Tribunal of its decision on the morning of 7 April 1995 and the issue by it of the Press release preceded the holding of the Press conference I consider it convenient first to endeavour to identify the allegedly defamatory statements which the pursuers attribute to the Members.
[9]It is averred by the pursuers that the Press release contained two matters which were factually incorrect. The first of these incorrect statements in the Press release, quoted at page 32C in the Closed Record, is in these terms:
"During 1992 and 1993 the respondents made claims under the Legal Advice and Assistance Scheme to the Scottish Legal Aid Board in respect of fees amounting in total to approximately £30,000 covering some 1200 cases. When called upon by the Board to justify the fees claimed they were unable to produce any files or other records to justify the fees claimed. The Tribunal was informed that the £30,000 had been repaid to the Legal Aid Board".
The inaccuracy averred by the pursuers is that the sum of £30,000 had not been repaid by them to the Scottish Legal Aid Board, the claimed fees of £30,000 not having been paid by the Board to the firm of which the pursuers were partners in the first place. It is admitted by the Members in their defences that the Press release - and the oral decision which it replicated - are inaccurate insofar as stating that £30,000 had been repaid to the Scottish Legal Aid Board respecting claims for fees for legal advice and assistance which the firm had been unable to substantiate. The Members go on to aver that a sum of £30,000 had been repaid to the Scottish Legal Aid Board in relation to a particular case and that the error was thus made "in good faith, after many days of evidence and following a complex agreement by the pursuers to certain of the facts complained of against them in the complaints by the Law Society of Scotland and an acknowledgement by the pursuers that the admitted facts amounted to professional misconduct on their part".
[10]The second passage to whose accuracy exception is taken is quoted at page 33B of the Closed Record as follows:-
"The First and Second Respondent [i.e. the First and Second pursuers] permitted fraudulent claims to be made to the Legal Aid Board and their failure to be able to provide details of work done in relation to claims for fees amounting to approximately £30,000 was regarded by the Tribunal as entirely unacceptable behaviour for a solicitor".
The inaccuracy complained of is averred to be as follows:-
"The statement 'failure to be able to provide details of work done' is incorrect. The true facts as given to and accepted by the Discipline Tribunal are that the Scottish Legal Aid Board was provided with name, address and date of birth, of the client in question together with date the advice was given and the nature of that advice. In so doing the pursuers were following the then common practice of the Profession as referred to at page 379 in The Journal of the Law Society, October 1993. A copy of said article is produced, referred to for its whole terms and held as incorporated herein brevitatis causa. The statement 'permitted fraudulent claims' is incorrect. The Tribunal was advised all fraud and dishonesty on the part of the pursuers had been departed from as foresaid. Furthermore mention of the £30,000, which could not be obtained due to failure to be able to provide details of work done, within the same sentence as 'permitted fraud' implies a fraudulent scheme on behalf of the pursuers to obtain £30,000 pounds from the Legal Aid Fund".
Apart from the Press release the pursuers put in issue two passages in the extensive written findings issued by the Tribunal on 5 June 1995. The passages, quoted at pages 38-39 of the Closed Record are in these respective terms:-
(i) "This background...
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