Alan Massie V. Callum Mccaig And Others

JurisdictionScotland
CourtCourt of Session
JudgeLord Wheatley,Lord Menzies,Lord Justice Clerk
Judgment Date01 March 2013
Neutral Citation[2013] CSIH 14
Date01 March 2013
Docket NumberA558/12
Publication Date28 February 2013

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Menzies

Lord Wheatley

[2013] CSIH 14

A558/12

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the reclaiming motion

ALAN MASSIE

Pursuer and Respondent;

against

CALLUM MCCAIG & OTHERS

Defenders and Reclaimers:

_______

Act: Summers QC, Galbraith; Lefevre Litigation (Pursuer and Respondent)

Alt: RW Dunlop QC, DG Hamilton; Francis Gill & Co (Defenders and Reclaimers)

1 March 2013

Background
[1] This is an action of defamation.
On 19 December 2012, the Lord Ordinary granted interim interdict against the defenders, in terms of the pursuer's conclusion, prohibiting them:

"From defaming the pursuer by making, publishing or otherwise disseminating statements alleging or containing an innuendo that the pursuer's donation of £11,500 to the Gordon Constituency Labour Party was made in order to induce Labour councillors in Aberdeen Council to perform their public functions improperly by voting in favour of development proposals of Carlton Rock Ltd".

[2] The pursuer has a controlling interest in Carlton Rock Ltd, a property development company functioning in the Aberdeen area. Between March 2011 and May 2012, the pursuer donated £11,500 to the Gordon Constituency Labour Party, which operates in the Aberdeen area. Aberdeen City Council have under consideration applications for planning from Carlton Rock. The first defender is a Scottish National Party councillor on Aberdeen City Council and the second defenders are that party.

[3] On 26 October 2012, the first defender issued a press statement, as follows:

"Labour has received £11,500 in donations from [the pursuer] of Carlton Rock over the last 18 months. To put these donations into context: the [second defenders] spent a total of £8,000 in its council election campaign in Aberdeen. So it is not unreasonable to assume that Cllr. Crockett owes his position as Council Leader to the deep pockets of [the pursuer]. As such, it needs to be made abundantly clear to the public that the debt was not repaid by grateful Labour councillors voting in favour of Carlton Rock's development proposals. There is a clear conflict of interest here. In order to resolve it, Labour should either repay the money they have received from [the pursuer], or they should ensure that none of its councillors take part in decisions that will benefit Carlton Rock, including land deals and planning applications. I can reveal that the [second defenders] turned down a sizeable donation from an Aberdeen property developer in the run-up to the council elections. The donation was made in good faith, and with no 'strings' intended, but neither I, or my fellow [second defenders] councillors, would have taken part in any deliberations involving the developer in question".

[4] On 12 December 2012, the second defenders published an article on a website controlled by them. This was headlined "Labour's conflict of interest with property company director". The article referred to the donation of £11,500 and stated that Labour councillors within a local school trust had previously authorised the sale of a site to Carlton Rock for £7 million, despite there being a reportedly higher bid of £11 million. The article referred to a MSP calling for an urgent investigation into the role of the trust in the sale. The article continued that:

"Ironically, in June 2009, Labour councillor [Y] wrote to the council's City Solicitor urging her to investigate the links between [the pursuer] and former Liberal Democrat councillors".

The article repeated the full text of the first defender's statement.

[5] The pursuer's averments make reference to what he maintains are the natural inferences to be drawn from the statement and the article. Subject to a degree of repetition in earlier articles, the case is brought together in the following condescendence:

"6 The statements made and published by the first and second defenders are false and defamatory of the pursuer. The statements were made in a manner calculated to lower the pursuer in the minds of right thinking members of the public. The statement made by first defender ... falsely and calumniously represented by innuendo that the pursuer had given the Labour Party £11,500 with the intention and expectation that Labour councillors would thereafter consider themselves in his debt, and act improperly in the exercise of their public duties by voting in favour of development proposals for Carlton Rock. The website article ... further defamed the pursuer by repeating the first defender's statement and by adding further comment to strengthen the inferences of improper and criminal conduct".

[6] The averments allege continuing defamation by virtue of the issue and publishing of the statement and article. With specific reference to a meeting of the Council scheduled for 19 December 2012, it is said that the pursuer reasonably apprehends that the defenders will continue to make defamatory comments of the nature already alluded to and that:

"In the absence of any evidence or factual basis for such an allegation or innuendo, any repetition by the first defender of this statement in such a context would not be in accordance with the proper performance of his public duties and would be malicious".

[7] The Lord Ordinary's Opinion makes reference to the submissions of the pursuer that the statement and article carried an innuendo of a defamatory nature. He noted that the defenders' submission was, first, that the statement and article were not capable of bearing the innuendo contended for and that, in any event, secondly, what was complained about amounted to no more than fair comment. It was also said by the defenders that, thirdly, the material was covered by qualified privilege. The final submission for the defenders was that, in relation to the granting of interim interdict, regard had to be had to section 12(3) of the Human Rights Act 1998, which prohibited interim relief being granted in circumstances such as the present, unless the court was satisfied "that the applicant is likely to establish that publication should not be allowed".

[8] The Lord Ordinary's conclusions were expressed in relatively short compass. He found that the whole tenor and language of the statement was one involving an obligation or debt owed by the Labour Party to the pursuer. In terms of Russell v Stubbs 1913 SC (HL) 14 (Lord Shaw at pages 23-24), the reasonable or natural inference to be drawn from the words used was that the Labour councillors had reached, or would reach, a view in favour of Carlton Rock's development proposals because of the donation made by the pursuer. If that were correct, then the innuendo contended for by the pursuer had been made out. That innuendo was of criminal conduct. Accordingly, the Lord Ordinary was of the view that a prima facie case of defamation had been made out.

[9] In relation to qualified privilege, this was dismissed with the simple sentence that said:

"I was not satisfied that the case of qualified privilege had been established".

The Lord Ordinary did not address the issue of fair comment at all. He did turn to the issue of balance of convenience and noted that, in terms of Gatley on Libel and Slander (11th ed) paras 27.2-27.3 and Burn-Murdoch: Interdict para 379, the court would be slow to interfere with legitimate political discussion. He took the view that that point was reinforced by the provisions of section 12(3) of the 1998 Act, which he encapsulated as meaning that the pronouncement of interim orders was prevented "unless publication is ultimately disallowed after a full hearing of a case" (para [8]). He found that the test in section 12(3) had been satisfied by virtue of the pursuer's case being "relatively strong" (ibid). Accordingly, and apparently based solely on the strength of the merits, the Lord Ordinary held that the balance of convenience favoured the pronouncement of the interim order.

Submissions
Defenders and reclaimers

[10] The defenders contended that, as a generality, the Lord Ordinary's interlocutor was not supported by the content of his Opinion, which lacked any proper consideration of qualified privilege and any consideration whatsoever of fair comment. The likelihood test under section 12(3) subsumed the traditional requirement to demonstrate a prima facie case and the court had to consider any relevant defences (Dickson Minto v Bonnier Media 2002 SLT 776, Lord Carloway at para [6]; Greene v Associated Newspapers [2005] QB 982, Brooke LJ at paras 22, 46-47).

[11] The pursuer had failed to make out a prima facie case that a defamatory meaning was "a reasonable, natural, or necessary interpretation" of the words used in the statement or article (Russell v Stubbs 1913 SC (HL) 14, Lord Shaw at 23). The hypothetical "reasonable reader" would have to be unduly suspicious and prone to selecting a defamatory meaning in order to derive any allegation of criminality, which was the only case the defenders had to meet (Macleod v Newsquest (Sunday Herald) 2007 Rep LR 5, Lord Macphail at para [14] following Gillick v British Broadcasting Corporation [1996] EMLR 267, Neill LJ at 272-3). The focus of both the statement and article had been to criticise the Labour councillors in respect of a potential conflict of interest. This focus could not have related to the pursuer, who was merely a donor and had no public duty. Any criminality could only have been on the part of the Labour councillors.

[12] The interdict was too broad in its terms and would impact on the defenders' ability to discharge their public duties. The real difficulty was what the defenders could or could not say. There required to be far greater precision in the form of interdict (British Data Management v Boxer Commercial Removals [1996] EMLR 349, Hirst LJ, delivering the judgment, at 361; Murdoch v Murdoch 1973 SLT (Notes) 13).

[13] Even if the words complained of...

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