Pearson v Educational Institute of Scotland
| Jurisdiction | Scotland |
| Judgment Date | 02 May 1997 |
| Date | 02 May 1997 |
| Docket Number | No. 34. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Cameron of Lochbroom.
PracticeCommission and diligenceDisclosureRecovery of names of persons sending report prima facie defamatory of petitionerConfidentialityWhether publication of report privilegedReport sent to trade unionWhether recovery be grantedWhether prima facie must be pled before recovery permittedWhether proceedings likely to be broughtAdministration of Justice (Scotland) Act 1972 (cap 59), sec 1(1A)(b) and (4)1Contempt of Court Act 1981 (cap 49), sec 102
The petitioner brought a petition under the terms of sec 1(1A)(b) of the Administration of Justice Act 1972 seeking, inter alia, an order requiring a trade union to disclose the names and designations of persons concerned with the preparation and despatch to the union of a document entitled Borders College Vote of No Confidence, 6 September 1994 on the basis that it contained allegations concerning the petitioner which were defamatory. The Lord Ordinary (Lord Cameron of Lochbroom) refused the prayer of the petition. The petitioner thereafter reclaimed.
Held (aff judgment of Lord Cameron of Lochbroom) (1) that for a petition to succeed under sec 1(1A)(b) there had at least to be a stateable case which an applicant was in a position to make against the defender, even if the identity of that defender was not known for the time being; (2) that that presupposed the availability to the applicant of responsible legal advice as to the nature of the averments which would be required in order to make such a case, and whether the available information, apart from the identity of the defender, was sufficient for that purpose; (3) that sec 1(1A) proceeded on the hypothesis that there was in existence at the date of the application under that subsection a person against whom the proceedings would be likely to be brought, the applicant needing only to discover the identity of that person in order to bring the proceedings; (4) that this assumed that if any specific matters of fact relative to that person would be required in order to make a stateable case, the applicant should already be in possession of information as to those matters at the time of making the application for disclosure of that person's identity; (5) that it was conceded that the document in question was privileged if sent to the union by a member of a body so that the petitioner was not in a position to argue that the sender of the document, whoever sent it, did not do so on an occasion of qualified privilege and was not in a position to suggest at this stage that the sender of the document, whoever that might be, was actuated by malice in sending the document to the union; (6) that, accordingly, the argument was whether the petitioner would require to make averments of malice at the outset in order to make a stateable case, or whether it would be sufficient for him to make averments of defamation, and only make averments of malice at a later stage, once qualified privilege had been pleaded in defence; (7) that a responsible legal adviser, in circumstances where the existence of qualified privilege would properly be inferred from the narrative which would be bound to appear in the summons, would give advice that averments of malice would require to appear in the summons at the outset in order for a stateable case to be made, it not being enough to say that an action of defamation could be raised without addressing any potential defence, if the
defence was inherent in the facts averred in the summons; and, accordingly (8) that such averments were necessary to demonstrate that an action was likely to be brought and it was not open to the court to override the statutory requirements; and reclaiming motionrefusedOpinion that although it was unnecessary to discuss the relationship between sec 1(4) of the 1972 Act and sec 10 of the Contempt of Court Act 1981, assuming that the interests of justice was the appropriate test in carrying out the balancing exercise in sec 10 of the 1981 Act, there was no good reason to confer public interest protection on an anonymous informer actuated by malice and that, if the petitioner had been able to make averments of malice, the anonymity of the potential defender would not have been protected.
Parks v. Tayside Regional Council 1989 SLT 345 andDominion Technology Ltd v. Gardner Cryogenics (No 1)1993 SLT 828 applied.
R Campbell Pearson brought a petition under sec 1(1A)(b) of the Administration of Justice (Scotland) Act 1972 in which he sought,inter alia, an order requiring the Educational Institute of Scotland, a trade union, to disclose the names and designations of persons concerned with the preparation and despatch to the union of a document entitled Borders College Vote of No Confidence, 6 September 1994 on the basis that it contained allegations concerning the petitioner which were defamatory, untrue and bore upon the petitioner's character and reputation.
The petition called before the Lord Ordinary (Lord Cameron of Lochbroom) who, at advising, refused the prayer of the petition.
The petitioner thereafter reclaimed.
Cases referred to:
Colquhoun, Petr 1990 SLT 43
Dominion Technology Ltd v. Gardner Cryogenics Ltd (No 1) 1993 SLT 828
Friel v. Chief Constable of StrathclydeSC 1981 SC 1
Goodwin v. UKHRC (1996) 22 EHRR 123
James v. BairdENR 1916 SC 510
Parks v. Tayside RC 1989 SLT 345
Suzor v. McLachlanENR 1914 SC 306
Watson v. BurnetUNK (1862) 24 D 494
X Ltd v. Morgan-Grampian Publishers LtdELR [1991] 1 AC 1
The cause called before the Second Division, comprising the Lord Justice-Clerk (Cullen), Lord Nimmo-Smith and Lord Morison for a hearing on the summar roll.
At advising, on 2 May 1997, the opinion of the court was delivered by Lord Nimmo Smith.
Opinion of the CourtThe petitioner and reclaimer is principal and chief executive of Borders College in Galashiels (the college). The college is an educational establishment, which is self-governing and is funded, for the most part, by grant from the Scottish Office Education Department (the SOED). The respondents are the Educational Institute of Scotland (the EIS) and a full-time official thereof. The EIS is a trade union of which some, but not all, of the employees of the college are members. Other employees are members of the Scottish Further and Higher Education Association (the SFHEA), a body separate from the EIS.
On 6 September 1994, at a meeting attended by employees of the college, among them members of the EIS, a vote of no confidence in the management of the college was passed. Thereafter a document entitled Borders College: Vote of no confidence, 6th September 1994" was sent to the EIS. The contents of the document included allegations relating to the petitioner. It is not appropriate to repeat these allegations here: it suffices to say that they areex facie defamatory of the petitioner; though it should be noted that in their pleadings the respondents aver that the allegations in the said document are substantially true. The EIS sent the document on a confidential basis to the SOED, which then, with the permission of the EIS, sent it to the board of management of the College to investigate the matters referred to in the document. The consequences of that investigation are not relevant for present purposes.
The document does not identify its author or authors, or who sent it to the EIS. The petitioner avers that he does not know the identity of the person or persons in question, and that the respondents have refused to disclose this, if known to them. He further avers that he requires to know the identity and designation of the person who sent the document to the EIS and whether that person is the author of the document; that he intends to commence proceedings for damages against the person who sent the document to the respondents in respect that the person concerned has, by disseminating the document, defamed the petitioner; and that, if that person is not the author, he intends to raise proceedings against that person to ascertain the author or authors of the document so that separate proceedings for damages may be raised against the author or authors. He accordingly applies, under sec 1(1A)(b) of the Administration of Justice (Scotland) Act 1972, for an order ordaining the respondents to...
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