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Gretna 2, Real Madrid 0: Sheridan v News Group Newspapers Ltd.

Document Cited authorities 9 Cited in Related
Vincent
DOI10.3366/elr.2017.0395
Published date01 January 2017
Pages115-122
Author
Date01 January 2017

“What we have done … is the equivalent of Gretna taking on Real Madrid at the Bernabeu and beating them on penalties.”1

BACKGROUND AND PRIOR LITIGATION

The latest instalment in Tommy Sheridan's defamation battles came in August 2016, in Sheridan v News Group Newspapers Ltd.2 Matters started in 2004, when Mr Sheridan raised a defamation action in relation to articles published by the then News of the World. As the Inner House noted, the issue put to the jury was:

Whether the statements in the articles published by the defenders in the ‘News of the World’ on 14th November 2004, 21st November 2004 and 2nd January 2005 falsely and calumniously said that the pursuer committed adultery (with Fiona McGuire [AK] and other unnamed individuals); that he was a ‘swinger’ and that he participated in orgies; and while he claimed to be teetotal drank champagne; meaning thereby that he was a hypocrite and an abuser of his position of power as a party leader …3

The defence was veritas. Section 5 of the Defamation Act 1952 states that, in a defamation case, a defence based on the truth of the story “shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure … reputation having regard to the truth of the remaining charges.” Lord Turnbull explained the effect of this section to the jury as follows:4

[if] he ought to properly be seen as an adulterer, a swinger, someone who likes to participate in group sex, is his standing or reputation materially reduced by saying that he is also an abuser of power[?] … So if you found that some claims have been established and some not, then you would have to examine the question of whether or not the claim which had not been established did still materially injure Mr Sheridan's reputation. And if you found it did, then you would be entitled to find for him …

 And the jury duly did find in Mr Sheridan's favour, returning a majority verdict and awarding him £200,000.5 In December 2010, he was found guilty by majority verdict of perjuring himself in the defamation trial.6 The effect of the perjury verdict was to establish for legal purposes that the pursuer had lied about attending sex clubs and swingers' clubs, lied in his denial that he had had an affair with a party worker, and denied previous admissions to and statements by Scottish Socialist Party officials about visits to the clubs

Following this, News Group Newspapers sought to have the defamation jury trial verdict reopened.7 The motion was for a new trial, although what they ultimately sought was a remit to a Lord Ordinary. Section 29 of the Court of Session Act 1988 gives several grounds for seeking a retrial. In the Sheridan case, the critical ones were that the verdict was contrary to the evidence (section 29(1)(c)) and res noviter veniens ad notitiam (section 29(1)(e)). The res noviter in this case included an affidavit from a new witness, MM, regarding an extra-marital affair, and videotape footage from George McNeilage of the pursuer admitting certain conduct, including visiting Cupid's Club. Section 29(1) ends with a catch-all provision: “or on such other ground as is essential to the justice of the cause”. Sheridan argued, and the Inner House accepted, that the requirement that the ground be “essential to the justice of the cause” was over-arching. News Group's motion was refused by the Inner House on 19 August 2016.

 THE INNER HOUSE DECISION

The decision may have surprised many. As Lady Paton, giving the decision of the unanimous Inner House, stated, “a conviction for perjury by a party to a litigation will normally be expected to result in a re–hearing. Perjury … can usually be seen to go to the root of a case”.8 In reaching its conclusion, the Inner House emphasised the deference to be shown to the judgment of the civil jury, as having seen and heard the witnesses, and as responsible for weighing up questions of current social standards.9

The Inner House was clearly impressed by the pursuer's argument about the Fiona McGuire element of the journalism. Sheridan argued that the entire cause had been sparked by the News of the World's front page article showing a picture of a woman named Fiona McGuire headlined “My 4-in-a-bed orgy with Tommy” and sub-headlined “Ex-escort girl tells how MSP Sheridan cheated on his wife”. He had shown the Inner House what bore to be a witness statement from her to the police recanting her evidence. Moreover, she was a prominent witness amongst the 24 led by the defenders in 2006 – yet, while the 2006 jury heard both from Fiona McGuire and about her, her allegations...

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