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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Adams v. Guardian Newspapers [2003] ScotCS 131 (7 May 2003)
Cite as: 2003 SLT 1058, 2003 SCLR 593, [2003] ScotCS 131, 2003 SC 425, 2003 GWD 16-514

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    Adams v. Guardian Newspapers [2003] ScotCS 131 (7 May 2003)














    in the cause










    Pursuer: Cullen, Q.C., Dunlop; Balfour & Manson, Solicitors

    Defenders: G M Henderson; Haig Scott & Co, W.S.


    7 May 2003


  1. In July 1997 Mr Gordon McMaster, the Member of Parliament for Paisley South, committed suicide. The pursuer was at the time (and remains) the Member of Parliament for Paisley North. She and Mr McMaster were colleagues in the Labour Party, and were also close friends. On 4 April 1998 the Observer newspaper, which is published by the defenders, printed in its Scottish edition an article by its Scotland Editor, Mr Dean Nelson, under the headline:
  2. "Graham accuses rival MP of 'leaking' suicide letter".

    The article was in the following terms:

    "Paisley North MP Irene Adams leaked confidential details of Gordon McMaster's suicide letter to Prime Minister Tony Blair, according to her bitter rival, the West Renfrewshire MP Tommy Graham.

    His claim is the first of a series threatened by the MP after his explusion from the Labour Party last month. It will cause dismay among party leaders who hoped he would go quietly. They fear that a prolonged legal challenge over his explusion and a return to internecine warfare in Paisley will cast a long shadow over their Scottish Parliament election campaign next May.

    Solicitors acting for Graham will start preparing a case for a judicial review of the decision to expel him when the MP returns from holiday on Tuesday. They had been waiting to receive a detailed explanation from the party's National Constitutional Committee.

    Graham has confirmed he will also begin libel actions against two newspapers and launch his own Website to chronicle his campaign by the end of the month.

    McMaster, the Paisley South MP, was found dead in the garage of his Johnstone home in July last year. He had committed suicide by inhaling exhaust fumes. A number of suicide notes were discovered, typed on his home computer, which accused Graham and fellow MP Don (now Lord) Dixon, a councillor and a local newspaper reporter, of mounting a whispering campaign against him.

    One of the letters, addressed to Blair, Scottish Secretary Donald Dewar and then Chief Whip Nick Brown, was taken by Adams, a friend of McMaster, but was selectively leaked to the Daily Mail and Scotland on Sunday before being delivered by hand to the Chief Whip.

    Brown confirmed the letter had been leaked before it was handed to him to pass to Blair, but emphasised that 'no copy of the note was leaked by the Government'.

    Graham was suspended from the Parliamentary Labour Party after the Prime Minister ordered an investigation into the affair by Brown. According to Graham, Brown told him he would soon be cleared and his suspension lifted during a meeting at Graham's MP's home.

    Graham said he was also told that the letter had been leaked before being passed to Blair. 'Nick Brown told us that the two newspapers had "cherry-picked" the suicide letter and assured us that the Prime Minister had not received the letter until after the newspaper articles appeared. Irene Adams took the letters to London herself. There is no way Gordon's family leaked the letter and no way the Prime Minister was involved', Graham told The Observer.

    He said he believed Adams had waged a campaign against him because he had not supported her in the selection contest to fight Paisley North after the death of her husband and because his agent stood against her.

    Adams denied she had leaked the letter. 'The letter had been left on the window of his [McMaster's] car. I took the letter to the Chief Whip three days after [his death]', she said.

    Graham was eventually cleared of any responsibility for McMaster's suicide but remained suspended after new allegations that he tried to smear Adams".

  3. In the present action, the pursuer seeks to recover damages from the defenders for defamation. The action came before me at a hearing on Procedure Roll, at which both parties sought to have certain preliminary pleas sustained or repelled.
  4. 1. Defamatory meaning

  5. Counsel for the defenders invited me in the first place to sustain the defenders' general plea to the relevancy of the pursuer's averments, on the ground that the words complained of were not defamatory and were not capable of bearing a defamatory meaning. Counsel submitted that whether it was defamatory to state that a person leaked a confidential document depended on whether the document was in fact confidential. In relation to the latter point, counsel drew my attention to an admission made by the pursuer in her pleadings:
  6. "Admitted that the [suicide] note was addressed to a number of people, including the deceased's parents, the Prime Minister, the Chief Whip, Mr and Mrs Allison [the former being Mr McMaster's constituency secretary, and the latter being the Provost of Paisley], the pursuer and two newspapers".

    Counsel submitted that the implication of that admission was that the suicide note was intended by Mr McMaster to be published. The note was therefore not confidential, and the newspaper article was therefore not defamatory.

  7. In reply, counsel for the pursuer described this submission as "bizarre". The pursuer was alleged to have broken a confidence by leaking confidential details of a suicide note left by a friend of hers. Such an allegation would plainly tend to lower the pursuer in the estimation of right-thinking members of society generally (applying the test proposed by Lord Atkin in Sim v Stretch (1936) 52 T.L.R.669). Whether the letter was or was not confidential was beside the point: what was relevant was that the article categorised it as confidential.
  8. In my opinion the defenders' submission on this point is misconceived. The issue is whether the imputation contained in the words complained of would tend to affect the pursuer adversely in the estimation of others. The truth or otherwise of the imputation is not germane to that question; and the falseness of a defamatory imputation does not deprive it of its defamatory character.
  9. In the event that I rejected counsel for the defenders' submissions on this issue, counsel for the pursuer invited me to sustain the pursuer's plea to the relevancy of the defenders' averments, in respect of the defenders' averment:
  10. "Explained and averred that the words used in the article complained of are not defamatory of the pursuer and are incapable of bearing a defamatory meaning".

  11. Whether the words complained of are capable of bearing a defamatory meaning is a question of law; and I am in no doubt that that question must be answered in the affirmative. Whether the words complained of are defamatory of the pursuer is a question of fact; but that should not be confused with the question whether the defenders' averment that "the words ... are not defamatory of the pursuer" is relevant and specific, which is a question of law. The words complained of are, on their face, defamatory of the pursuer. There might be, in theory at least, a variety of grounds on which it could be said that the words were not in fact defamatory of the pursuer (e.g. that they referred to another individual bearing the same name, or that they bore an inoffensive meaning in the particular circumstances); but no such grounds are averred. Counsel for the defenders explained in his submissions the basis upon which it was averred that the words were not defamatory of the pursuer; and that basis is, as I have said, misconceived. In these circumstances I conclude that the averment in question is irrelevant and lacking in specification.
  12. 2. Damages

  13. Counsel for the defenders next invited me to "delete" the pursuer's averments of damage, which are in the following terms:
  14. "The pursuer has suffered injury to her feelings, standing and reputation as a result of the false and calumnious representations by the defenders as hereinbefore condescended upon. The representations caused and continue to cause distress to the pursuer. The pursuer is a well-known figure amongst the general public in Scotland. She has been a Member of Parliament since 1990. She sits on the Parliamentary Select Committee for Scottish Affairs. She is a member of the Chairman's Panel. She is a Justice of the Peace in Paisley. The defenders' newspaper has a wide circulation in Scotland. Much publicity has been given in recent times to allegations of 'sleaze', or improper conduct, on the part of Members of Parliament. The pursuer has throughout observed the highest standards of conduct. In the course of her work as a Member of Parliament she is often in receipt of confidential information. In such circumstances, the allegation that the pursuer betrayed a confidence is an extremely damaging one to the pursuer's professional standing and reputation. Despite being called upon to publish an apology for the article, the defenders have repeatedly refused to do so".

    In inviting me to delete these averments, counsel for the defenders relied upon another admission in the pursuer's pleadings:

    "With reference to the defenders' averments in answer, admitted that the pursuer raised an action in England against the defenders arising out of the said article. Admitted that the case was heard before Master Eyre, under explanation that he dealt only with the defenders' motion to stay the proceedings. The judgment of 8 November 1999 is referred to for its terms, which are admitted ....".

    Counsel for the defenders referred to the judgment in question, in which Master Eyre granted a stay of the English proceedings on the basis of forum non conveniens, Scotland being considered to be the appropriate forum. Counsel drew attention to the following passage in the judgment:

    "The particulars of her claim include the allegation that the article was extremely damaging to her reputation and her ability to hold herself out as a trustworthy and professional Member of Parliament and member of a Select Committee. However, when I queried the truth of this allegation with counsel for the claimant, she told me on instructions that, while the claimant was sure that the article had come to the attention of her colleagues at Westminster, including the Prime Minister, she had not been ordered to explain herself; and she had not received any other indication that adverse consequences might be expected".

    Counsel submitted that, in the absence of an explanation of why those observations no longer held good, no fair notice was given of a matter which called for explanation. In reply counsel for the pursuer submitted that the English judgment might provide material for use at a proof, but was not relevant at the present stage of the proceedings. The pursuer's position in the present action was not in any event inconsistent with the position presented to the English court on her behalf.

  15. In my opinion the defenders' submission on this point also is misconceived. The judgment of Master Eyre does not render any of the issues in the present action res judicata, and does not prevent the pursuer from seeking to recover damages in the present action on the basis of her averments. The pursuer's admission of the terms of the judgment is not inconsistent with her averments of damage; nor do the latter averments fail to give fair notice of her claim.
  16. 3. Parliamentary privilege

  17. Counsel for the defenders next invited me to sustain a plea-in-law in the following terms:
  18. "Both the letter condescended upon and the subject matter of this action being subject to Parliamentary privilege the action should be sisted ante omnia".

    In support of this plea, counsel referred me to averments made on behalf of the defenders:

    "Further explained and averred that the defenders have yet to obtain a copy of the said suicide letter .... The pursuer is, on her own averments, unable to produce a copy .... After this court granted a commission and diligence to recover such a letter the defenders' agents served alternative procedure documents upon the Prime Minister and Nick Brown. Following sundry correspondence with Messrs Steel & Shamash, Solicitors, who act for both the Prime Minister and Nick Brown, they wrote a letter dated 11 June 2001 .... In said letter it was stated that the Prime Minister did not retain a copy of the suicide note. Whilst it was accepted that Nick Brown did have such a copy he refused and refuses to produce it on the basis that Parliamentary privilege attached to it. It was indicated that the said Nick Brown anticipated 'due process' so that the order of the Court of Session could be effective, if indeed it was capable of being so, in England and Wales. The defenders are reasonably apprehensive that they will not be able to recover such a document. The letter was written by one Member of Parliament and delivered to another by another Member of Parliament. Its contents included complaint about the behaviour of yet another Member. In the circumstances it may not be possible for the letter to ever be recovered from said source. Although privilege can be waived (in terms of section 13 of the Defamation Act 1996) neither the author of the letter nor the recipient have done so. The said letter, and its contents, are central to this action. In the absence of the letter the issues between the parties will not be determined fairly. In the circumstances the action should be sisted. In any event most of the issues arising in this case are ones to which Parliamentary privilege attaches. The issues involve the processing of a complaint by one Member of Parliament about another. Although the pursuer can waive her rights neither the deceased nor Tommy Graham nor Nick Brown have. In all the circumstances the action should be sisted".

  19. Counsel for the defenders submitted that a letter of complaint made by one Member of Parliament to another about the conduct of a third Member of Parliament attracted privilege under article 9 of the Bill of Rights 1689. Where the exclusion of material on the grounds of Parliamentary privilege made it impossible fairly to determine the issue between the parties, the proceedings should be sisted. In support of these propositions, counsel cited Rost v Edwards [1990] 2 Q.B.460, Prebble v Television New Zealand Ltd [1995] 1 A.C.321 and Allason v Haines [1996] E.M.L.R.143. Counsel acknowledged that no party to the present proceedings was seeking to question the veracity or propriety of any statement or act said or done in Parliament. Counsel also acknowledged that, according to the defenders' averments, the intended recipients of the suicide letter were not only the Prime Minister and the Chief Whip, but also included the parents of the late Mr McMaster, Mr and Mrs Allison and two journalists. Counsel said that none of these persons had been approached for a copy of the letter.
  20. In reply, counsel for the pursuer invited me to sustain the pursuer's plea-in-law challenging the relevancy and specification of the averments which I have quoted, and to repel the defenders' plea-in-law. Counsel submitted that neither the letter nor the action was concerned with Parliamentary proceedings. Merely bringing the letter inside the Palace of Westminster did not create Parliamentary privilege. In that connection, counsel referred to the explanation of the nature and scope of Parliamentary privilege provided in Prebble v Television New Zealand; to Erskine May's Treatise on the Law, Privileges, Proceedings and Usage of Parliament (22nd edition) at pages 93 to 96; to Mitchell, Constitutional Law (2nd edition) at pages 124 to 125; and to Rivlin v Biliankin [1953]1 Q.B.485. Neither party was challenging the veracity or propriety of anything done in Parliament. In that regard, counsel contrasted the present action with Hamilton v Al Fayed [2001] 1 A.C.395. There was in any event nothing to establish that the letter could not be recovered. Nothing had been done to test the assertion made by Mr Brown's solicitors. No attempt had been made to recover the document through the courts. Nor had any attempt been made to recover it from other persons to whom the defenders averred it had been addressed. In any event, whether or not the letter was available was not material. The contents of the letter were not important, since the defenders in their article had categorised the letter as confidential.
  21. There is little modern authority in Scotland on the issue of Parliamentary privilege; but it was common ground before me, and appears to me to be clear, that the law on this matter is, in general at least (and subject to any divergences arising in consequence of other differences between Scots and English law, e.g. as to procedure) the same in Scotland as elsewhere in the United Kingdom. No difficulty arises, in particular, from the fact that the Bill of Rights was passed by the Convention Parliament in England and had its Scottish equivalent in the Claim of Right (the latter being less specific on the issue of freedom of speech). As Mitchell explains (at page 125), doctrines of Parliamentary privilege were more fully developed in 1707 in England than in Scotland, and it was therefore natural that the greater should be accepted as the basis of the privileges of the Union Parliament (quite apart from the natural tendency of that Parliament to refer to precedents which were familiar to the majority of its members). The assignment of a particular local origin is in any event unlikely to be important, since the current scope of Parliamentary privilege depends on wider considerations.
  22. The concept of Parliamentary privilege was explained by Lord Browne-Wilkinson in Prebble v Television New Zealand. His Lordship referred (at page 332) to article 9 of the Bill of Rights, which provides:
  23. "Freedom of Speech - That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament".

    His Lordship continued:

    "In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz - that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges ..... As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830) Vol.1, p.163:

    'the whole of the law and custom of Parliament has its original from this one maxim, "that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere"".

  24. As Lord Browne-Wilkinson indicated in that passage, the privilege in question is not merely a means of protecting free speech in Parliament (such as might be achieved, for example, by conferring an absolute privilege under the law of defamation such as attaches to the reporting of court proceedings). It is a constitutional constraint based on what Sedley J. (as he then was) aptly described as "a mutuality of respect between two constitutional sovereignties": R v Parliamentary Commissioner for Standards, ex parte Al Fayed [1998] 1 W.L.R.669, 670. It reflects a conception of the separation of powers between the legislature and the judiciary. Putting the matter another way, Parliamentary privilege is not (unlike absolute privilege) a defence arising under the law of defamation: it is, rather, an issue going to the jurisdiction of the court. Lord Browne-Wilkinson returned to this point at page 335:
  25. "The wider principle encapsulated in Blackstone's words quoted above prevents the courts from adjudicating on issues arising in or concerning the House, viz, whether or not a member has misled the House or acted from improper motives. The decision of an individual member cannot override that collective privilege of the House to be the sole judge of such matters".

  26. One implication of Parliamentary privilege is that it prevents a court from entertaining any action against a member of the legislature which seeks to make him legally liable for acts done or things said by him in Parliament: in particular, an action for defamation cannot be brought against a Member of Parliament based on words said by him in the House. The principle is however of wider scope. In Prebble Lord Browne-Wilkinson cited (at page 333) a provision of Australian legislation as containing "the true principle to be applied":
  27. "In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of - (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament".

  28. Lord Browne-Wilkinson expressed the same principle in his own words at page 337, in terms which draw a significant distinction:
  29. ".... their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House, subject to any statutory exception ... However, their Lordships wish to make it clear that this principle does not exclude all references in court proceedings to what has taken place in the House ... A number of the authorities on the scope of article 9 betray some confusion between the right to prove the occurrence of Parliamentary events and the embargo on questioning their propriety. In particular, it is questionable whether Rost v Edwards was rightly decided.

    .... if the defendant wishes at the trial to allege the occurrence of events or the saying of certain words in Parliament without any accompanying allegation of impropriety or any other questioning there is no objection to that course".

    The distinction drawn by Lord Browne-Wilkinson is reflected in the terms of article 9 itself: it confers on "proceedings in Parliament" a specific protection from being "impeached or questioned".

  30. Lord Browne-Wilkinson acknowledged (at page 336) that this principle could conflict with the interests of justice in ensuring that all relevant evidence is available to the courts. In that regard, his Lordship said (at page 338):
  31. "Their Lordships are of the opinion that there may be cases in which the exclusion of material on the grounds of Parliamentary privilege makes it quite impossible fairly to determine the issue between the parties. In such a case the interests of justice may demand a stay of proceedings. But such a stay should only be granted in the most extreme circumstances".

    I observe that, in the present case, the defenders seek a sist of the action on the assumption that a sist is the Scottish equivalent of a stay of civil proceedings. The appropriate form of order would in my opinion depend on the circumstances; but, where there was no prospect of a material change in circumstances (e.g. the waiver of privilege under the 1996 Act), the most appropriate form of order under Scots law, in a case in which the issue could not fairly be determined, would be likely to be a decree of dismissal.

  32. In the light of the discussion in Prebble, it is necessary to consider whether the defenders' averments are relevant to establish, first, that the present action is concerned to any extent with proceedings in Parliament; if so, secondly, whether those proceedings are sought to be brought into question in violation of the privilege of Parliament; and, if so, thirdly, whether the exclusion of the privileged material makes it necessary in the interests of justice that the action should be dismissed.
  33. In relation to the first question, I note that the pursuer avers that the suicide letter left by Mr McMaster accused Mr Graham of having waged a campaign against him. It is common ground that the letter was addressed to a number of people, three of whom were Members of Parliament (namely the Prime Minister, the Secretary of State for Scotland and the Chief Whip) and the remainder of whom were not. It is also common ground that, prior to the letter being received by the three Members of Parliament, its terms were published, in part at least, in certain newspapers.
  34. The meaning of the phrase "proceedings in Parliament" has seldom been directly considered by the courts. The case of Rivlin v Biliankin concerned a letter written by a member of the public to a Member of Parliament in an attempt to obtain Parliamentary redress for an alleged grievance. Article 9 of the Bill of Rights was held to be inapplicable because the letter was not connected in any way with any proceedings in Parliament. The reasons given for the decision were brief; and it is difficult to take much from the decision. It suggests that in determining whether a communication to a Member of Parliament forms part of proceedings in Parliament it is not sufficient (in the case, at least, of a communication by a member of the public) that the author of the communication intends that it should result in such proceedings. That however does not offer much assistance in the present case. In Rost v Edwards the plaintiff was a Member of Parliament who wished to lead evidence about the circumstances in which, having been nominated to serve on a Standing Committee, he was de-selected from the Committee, and in which he failed to secure appointment as the chairman of a Select Committee. He also wished to lead evidence as to questions which were asked in the House by Opposition Members about his conduct, and as to a letter which one of the Opposition Members sent to him and also to the Speaker, complaining about the plaintiff's conduct. It appears that the letter concerned the questions which the Member subsequently raised in the House. All these matters were held to fall within the scope of "proceedings in Parliament", without much discussion of that issue. The facts were far removed from those of the present case. The case of Allason v Haines was concerned with the tabling of early day motions in the House of Commons; and Hamilton v Al Fayed concerned the tabling of Parliamentary questions. Both cases plainly concerned "proceedings in Parliament"; but their facts bear no similarity to those of the present case.
  35. Finally, in relation to the decided cases, I note that the importance of avoiding giving Parliamentary privilege an over-extensive scope was made clear in the decision of the Judicial Committee of the Privy Council in Attorney-General of Ceylon v de Livera [1963] A.C.103, where Lord Radcliffe referred (at page 120) to "the proper anxiety of the House to confine its own or its members' privileges to the minimum infringement of the liberties of others", and (at page 121) to "reluctance to treat a member's privilege as going beyond anything that is essential". The importance of these observations is reinforced by the effect given by Parliament to Convention rights (when account is taken of relevant decisions of the European Court of Human Rights, e.g. A v United Kingdom, 17 December 2002, and Cordova v Italy (Nos. 1 and 2), 30 January 2003).
  36. In the present case the averments do not in my opinion suggest that Mr McMaster's suicide letter was related in any way to Parliamentary business: there is nothing to indicate any relationship between the letter and proceedings that were taking place or were to take place or had taken place in Parliament (let alone a relationship between the letter and such proceedings of a nature which would bring the present action within the scope of Parliamentary privilege). Nor is there any other indication of any relationship between the subject matter of the action and such proceedings. The plea of Parliamentary privilege therefore fails, in the first place, on the basis that it has not been shown that the action concerns any act or statement capable of falling within the scope of such a plea.
  37. Furthermore, as Lord Browne-Wilkinson explained in Prebble (and reiterated in Hamilton v Al Fayed), Parliamentary privilege normally applies only when the propriety or veracity of actions or words falling within the scope of the plea is sought to be challenged or investigated in legal proceedings. There is nothing in the pleadings in the present action to suggest that any attempt is being made to challenge or investigate any such actions or words.
  38. 4. Fair comment

  39. The defenders' pleadings contain the following plea-in-law:
  40. "The words complained of in the article being fair comment arising from the facts and subject to public interest the defenders are entitled to absolvitor".

    In that regard, the defenders aver:

    "Further and in any event the words complained of represented fair comment on the surrounding facts presented in the article. The material in the article was a matter of public interest. The said McMaster died leaving a suicide letter. The pursuer took it upon herself to deliver copies of the letter to three recipients. Prior to the receipt by said recipients the contents of the letter or at least parts of them appeared in newspapers. The family of the deceased and the recipients of the letter denied 'leaking' the contents. In the circumstances, it was fair comment that suspicion attached to the pursuer".

    It appears from the pleadings that "the words complained of" comprise the headline of the article together with the first, fifth, sixth, seventh, ninth and tenth paragraphs.

  41. Counsel for the pursuer invited me to sustain the pursuer's plea-in-law challenging the relevancy and specification of the averments which I have quoted, and to repel the defenders' plea-in-law. Counsel submitted that the words complained of were not reasonably capable of being construed as comment: they were statements of fact, rather than expressions of opinion. It was impossible to identify any part of the article which could be regarded as comment. Counsel cited in this connection London Artists Ltd v Littler [1969] 2 Q.B.375, Telnikoff v Matusevitch [1992] 2 A.C.343 and Paul v Cheng [2001] E.M.L.R.777. The defenders' averment that "it was fair comment that suspicion attached to the pursuer" was beside the point: the article alleged guilt, not suspicion.
  42. In reply, counsel for the defenders submitted that everyone accepted that there was a controversy about the leaking of the letter. It was also a fact that the leak took place before the document was received in Westminster. On these facts, an issue arose as to whether what Mr Graham said about the pursuer was fact or comment. When requested by the court to indicate any specific words in the article which were capable of being construed as comment, counsel was unable to provide a clear response.
  43. In London Artists Ltd v Littler, Edmund Davies L.J. (as he then was) said (at page 395):
  44. "It behoves a writer to indicate clearly what portions of his work are fact and what are comment, for, in the words of Fletcher-Moulton L.J. in Hunt v Star Newspaper Co Ltd [1908] 2 K.B.309, 319:

    '.... comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v Chapman (1853) 3 C & K 286'.

    Failure to exhibit clarity in this respect carries its own risks, for, as Fletcher-Moulton L.J. went on to say, at page 320:

    'Any matter, ...which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment'.".

  45. The same point was made more recently by Lord Nicholls of Birkenhead in Reynolds v Times Newspapes Ltd [2001] 2 A.C.127 at page 193:
  46. "[T]o be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made".

  47. In the present case, as I have mentioned, counsel for the defenders was unable to point to any statement in the article which might be construed merely as an expression of opinion. The averment that "it was fair comment that suspicion attached to the pursuer" is immaterial, since no such comment can be found in the article. In the circumstances, and bearing in mind the observations which I have quoted from London Artists Ltd v Littler and Reynolds v Times Newspapers Ltd, I conclude that no relevant issue of fair comment arises in this action.
  48. 5. Veritas

  49. The defenders' pleadings contain the following plea-in-law:
  50. "The words complained of in the article being true or substantially true the defenders are entitled to absolvitor".

    In that regard the defenders' pleadings contain the averment:

    "Further and in any event the words complained of are true or substantially true".

  51. Counsel for the pursuer invited me to sustain the pursuer's plea-in-law challenging the relevancy and specification of the averment which I have quoted, and to repel the defenders' plea-in-law.
  52. Counsel for the pursuer submitted that, in order to establish a defence of veritas, the defenders required to prove not merely that the allegations which they reported had been made, but that those allegations were true. That followed from the "repetition rule", explained in Lewis v Daily Telegraph Ltd [1964] A.C.234. Lord Devlin said (at pages 283 to 284):
  53. "I agree, of course, that you cannot escape liability for defamation by putting the libel behind a prefix such as 'I have been told that ...' or 'It is rumoured that ...', and then asserting that it was true that you had been told or that it was in fact being rumoured. You have, as Horridge J said, in a passage that was quoted with approval by Greer L.J. in Cookson v Harewood [1932] 2 K.B.478n, 485n, 'to prove that the subject matter of the rumour was true'".

    Similar observations were made by Lord Reid (at page 260) and Lord Hodson (at page 275). In the present case, counsel submitted, it was not clear that the defenders were offering to prove that the pursuer had behaved in the manner reported in the article, rather than proving merely that the reported allegations had been made. In Answer 2, in response to the pursuer's averments about the article, the defenders averred:

    "Explained and averred that the article contained a balanced account of further problems the Labour Party was having with Tommy Graham, M.P.".

    In the same answer, the defenders averred that the suicide letter was addressed to numerous individuals, including two journalists, and that "it was the wish of the deceased that the letter be widely published": these averments contradicted the truth of the allegation that the letter was confidential. Counsel also founded on the terms in which the defenders responded to the following averments made by the pursuer:

    "The article falsely and calumniously represented, directly and by implication, that the pursuer had 'leaked' to two newspapers confidential details of a suicide letter left by Gordon McMaster and addressed to the Prime Minister; that in doing so she was acting in pursuance of a campaign against a rival, namely Graham, in order to harm him and to benefit herself; that in doing so she had violated a confidence entrusted in her; and that she was thus untrustworthy".

    The defenders respond, in Answer 3:

    "Denied. Explained and averred that the words used in the article complained of are not defamatory of the pursuer and are incapable of bearing a defamatory meaning. The article made it clear that Tommy Graham accused the pursuer of 'leaking' the suicide letter to the press. It was presented in the context of the continuing fight between the party and the M.P. Further and in any event the words complained of are true or substantively true".

    In any event, counsel submitted, the bare averment in the last sentence quoted failed to give the pursuer fair notice of the case she had to meet: for example, as to when, how or to whom she was alleged to have leaked the letter.

  54. Counsel for the defenders, in his submissions on the issue of qualified privilege (discussed below), emphasised that the defenders' position was that the article was merely reprinting an allegation as an allegation: it was not reporting the subject matter of the allegation as a fact. As discussed below, that is a legitimate position to adopt in relation to qualified privilege, since the repetition rule has no application in that context. As was said in Al-Fagih v H H Saudi Research and Marketing (UK) Ltd [2001] EWCA Civ 1634, [2002] E.M.L.R.13 per Simon Brown L.J. at paragraph 36 (and repeated by his Lordship in Mark v Associated Newspapers Ltd [2002] EWCA Civ 772, [2002] EMLR 38 at paragraph 33), "the repetition rule concerns only the scope of the defence of justification in report cases: it does not limit the scope of qualified privilege at common law". On the other hand, in order to establish a defence of veritas, the repetition rule means that a defender has to prove the truth of the allegation which it reported. When asked whether the averment that "the words complained of are true or substantially true" was to be understood as an offer to prove the truth of the allegations made by Mr Graham, counsel for the defenders responded that it was standard practice to adopt a "scattergun" approach when pleading a defence to a defamation claim, so as to cover every conceivable defence. That practice had been followed. The veritas defence was intended as a "fall-back". If it was prejudicial to the plea of qualified privilege to construe the averment in question as meaning that the defenders offered to prove the truth of the allegations, then the averment should not be so construed, and the plea of veritas should be repelled. Asked to clarify whether the defenders did or did not maintain in this action that the pursuer leaked the letter, counsel did not provide any further clarification.
  55. In relation to the submission which I have just summarised, I should perhaps observe that it is a fundamental principle of the ethics of advocacy in Scotland that counsel (or a solicitor, as the case may be) must have a proper basis for stating a fact in any pleadings; and the practice of the courts is based upon an expectation that that principle is respected. That principle applies to an averment that a defamatory statement is true with no less force than it applies to other averments of fact.
  56. In the present case, on a proper understanding of what the defenders have to prove in order to establish a defence of veritas, the averment quoted would imply that the defenders propose to prove that the pursuer behaved in the manner which, according to the article, Mr Graham alleged: in particular, that she leaked the letter to the Press. The defenders do not however expressly aver that. It would not necessarily be unsatisfactory to leave the matter as one arising by implication, if the implication were reasonably clear. In the unusual circumstances of the present action, however, that does not appear to me to be the case. The defenders do not, for example, maintain that the letter was confidential, as the article had stated in its first sentence. In addition, and perhaps more importantly, despite being given every opportunity to clarify whether the defenders maintained that the pursuer leaked the letter, counsel for the defenders failed to do so. This is an unsatisfactory position. The action has been brought on the basis that the allegation that the pursuer leaked the letter is a matter of gravity affecting her standing and reputation as a Member of Parliament. It is in my opinion inappropriate and unfair to expect her to go to proof in this action without knowing whether she faces a defence based on the proposition that she leaked the letter, or merely a defence based on the proposition that the defenders were entitled to repeat Mr Graham's allegation. The nature and scope of preparations for the proof depend on this fundamental point.
  57. Another consideration fortifies my conclusion on this matter. When veritas is pled as a defence in defamation proceedings (as in other contexts where a party makes serious allegations about another party's conduct), the court expects the material averments to be specific. In Macleod v Marshall (1891) 18R 811, for example, Lord Young observed (at page 816):
  58. "[T]o justify a libel or slander there must be a distinct substantive averment of a fact or facts which, if proved, will justify it ....".

    Although that observation appears in a dissenting Opinion, the court appear to have differed as to the application of that principle rather than as to the principle itself (see e.g.the observations of Lord Justice-Clerk MacDonald at page 816). The principle is illustrated by Paul v Jackson (1884) 11R 460, where the defender pled veritas in respect of letters which he had written accusing the pursuer of threatening him with murder. Lord Fraser said (at page 468):

    "Now, the defender did propose a counter-issue in this case; but it was in such terms of vagueness in regard to time and place that it gave no proper notice to the pursuer of what was intended to be proved against him. The month and the day of the month were not stated ... Nor was the place where the threats were uttered mentioned ....and the threats which are said to have been used were not the threats of murder charged against the pursuer in the letters. This issue was disallowed because of its vagueness, and as justifying no part of the charge against the pursuer".

  59. In the present case, in order to prove the truth of the words complained of, the defenders would require to lead evidence to establish that the pursuer leaked the letter. Such evidence might directly point to the pursuer as the source of the leak, in which event fair notice would require that some specification be given in the pleadings as to when, or to whom, or by what means the pursuer was said to have leaked the letter. No such specification is however given. Alternatively, the evidence might point to the pursuer's responsibility for the leak as an inference arising from the elimination of other potential sources. Such an approach would involve leading evidence to establish that only particular individuals had access to the letter and that those individuals (apart from the pursuer) did not leak it. In that event, fair notice would require that it be averred that only specified individuals had access to the letter. If it were averred that those individuals (apart from the pursuer) did not leak it, the pursuer's responsibility for the leak could then be "believed and averred" as a matter of inference. No such specification is however given: the defenders aver that certain persons (the averment is not clear as to their identity, but in context it appears to refer to Mr McMaster's family and the three members of the Cabinet to whom the letter was addressed) "denied" leaking the letter, but they do not give notice of an intention to prove that each of the other potential sources of the leak was not in fact responsible for it.
  60. In these circumstances, I conclude that the defenders have not made relevant and specific averments in support of their plea of veritas.
  61. 6 Qualified privilege

  62. The defenders' pleadings contain the following plea-in-law:
  63. "The words complained of being written in circumstances of qualified privilege the defenders are entitled to absolvitor".

    In that regard the defenders aver:

    "Further and in any event the occasion of writing said article was subject to qualified privilege. The article duly appeared in the Scottish edition of the Observer. The article was published without malice. The matter was one of public interest and the Scottish public had the right to know and had legitimate reasons for knowing the information contained therein. The allegation that the defender [sic] had been responsible for the leak was not new and already in the public domain ... The information presented revealed the sources of the article. The defenders made it quite clear that Tommy Graham was still under suspension following allegations that he had smeared the pursuer. The defenders also received information from Nick Brown prior to publication. Comment was sought by the pursuer. The article published her account of events and contained the gist of her side of the story. The tone of the article suggested that Tommy Graham would continue to cause problems for the Labour Party and that the making of the allegation would lead to another enquiry".

    In response, the pursuer avers:

    "Further, the article is not protected by qualified privilege. The allegation of breach of confidence made publicly against the pursuer by another Member of Parliament was an extremely serious charge. The source of this allegation was Tommy Graham, MP, who had previously had several public disagreements with both the pursuer and Gordon McMaster. In the circumstances, Graham was obviously not a reliable or impartial service. The article was poorly researched. It wrongly stated that a number of suicide notes were discovered. The defenders are called upon to specify the nature and extent of all steps taken by them to verify the allegations made by Graham. Their failure to answer will be founded on. In all the circumstances, the article does not attract qualified privilege".

  64. Counsel for the defenders invited the court to find that qualified privilege arose and therefore to dismiss the action, malice not being averred by the pursuer. Counsel for the pursuer on the other hand invited me to sustain the pursuer's plea to the relevancy of the defenders' averments concerning qualified privilege, and to repel the defenders' plea-in-law; which failing, to reserve consideration of this plea until after proof.
  65. In support of his motion, counsel for the defenders relied upon the decision in Reynolds v Times Newspapers Ltd, and in particular the speech of Lord Nicholls of Birkenhead. Counsel submitted that it was plain from the averments in the present case, taking account of the ten matters listed by Lord Nicholls at page 205 (in a passage quoted later in this Opinion) that the balance pointed towards the publication being privileged. In particular, the defenders had not asserted as a matter of fact that the pursuer had leaked the letter: they had merely reported the making of an allegation by one Member of Parliament about another Member of Parliament, together with the latter's response. They had not adopted any position as to whether the allegation was true or not. Counsel also cited three more recent decisions: GKR Karate (UK) Ltd v Yorkshire Post Ltd [2000] E.M.L.R.410; Al-Fagih v HH Saudi Research & Marketing (UK) Ltd and Mark v Associated Newspapers Ltd. Counsel submitted that the judgments in Al-Fagih demonstrated that it was not always necessary to examine the particular facts and circumstances of the individual case: the Court of Appeal had been anxious to set down rules of law arising out of Reynolds. In the present case, it was sufficiently plain from the pleadings that publication took place on a privileged occasion for the court to reach that conclusion without the necessity of hearing evidence. Such matters had been decided in previous Scottish practice without the leading of evidence, as demonstrated by the authorities cited by Lord Hope of Craighead in Reynolds at page 231.
  66. In reply, counsel for the pursuer submitted that the test was whether the newspaper had a duty to communicate, and the public had a corresponding interest to receive, the publication in question. It was therefore necessary to consider whether the particular publication was such as to attract privilege. That depended upon an assessment of the responsibility of the journalism. In relation to the ten matters listed by Lord Nicholls, counsel observed that the ninth matter was:
  67. "9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of facts".

    That matter was not however to be taken in isolation from the other matters mentioned. Whether the occasion was privileged was a question of law; but it was a question which could be determined without inquiry into the facts only where the answer appeared unmistakably from the pleadings: Adam v Ward [1917] A.C.310. Two of the authorities cited by Lord Hope of Craighead illustrated that proposition: Anderson v Hunter (1891) 18R 467 and Bruce v Leisk (1892) 19R 482. The case of Al-Fagih was distinguishable on its facts. The present was not a case in which the newspaper was reporting blast and counter-blast by one politician against another: all the accusations had emanated from Mr Graham. In any event, the defenders' article had not confined itself to reporting that an allegation had been made. In that regard, counsel submitted that much of the article reported as fact matters other than the making of the accusation. The fifth paragraph reported as fact that a number of suicide notes were discovered, which accused Mr Graham and others of mounting a campaign against Mr McMaster. The sixth paragraph reported as fact:-

    "One of the letters, addressed to Blair, Scottish Secretary Donald Dewar and then Chief Whip Nick Brown, was taken by Adams, a friend of McMaster, but was selectively leaked to the Daily Mail and Scotland on Sunday before being delivered by hand to the Chief Whip".

    The implication of that sentence was that the letter which was leaked was the particular letter which had been taken by the pursuer, and that it was leaked after she had taken it and before she had delivered it. The obvious implication was that the pursuer was the source of the leak. The seventh paragraph indicated that the newspaper had inquired into Mr Graham's allegation and reported as fact the result of their inquiry:

    "Brown confirmed the letter had been leaked before it was handed to him to pass to Blair, but emphasised that 'no copy of the note was leaked by the Government'.".

    The implication of that sentence was, again, that the letter which was leaked was the particular letter which was handed to the Chief Whip, namely the letter which "was taken by Adams"; and that that letter had been leaked before it was delivered. The article had thus gone beyond neutral reporting that Mr Graham had made an allegation: it had adopted the allegation as a statement of fact. If the article had merely been "reportage", it would have been unnecessary to seek confirmation from another source. Confirmation was sought because the article was reporting as hard fact the leaking of the letter by the pursuer. The defenders had effectively sided with Mr Graham and presented his accusation as true.

  68. Counsel submitted that the standard to be applied was that of responsible journalism, which was a fact-sensitive test. The onus lay on the defenders to establish that that standard was met. The defenders however averred almost nothing about the steps they had taken prior to publication. The pursuer must be able to test in evidence whether that standard had been met. It would, for example, be relevant to know whether Mr Graham had sought out the journalist, or vice versa. It was possible to envisage circumstances in which a journalist might contact a Member of Parliament in the hope of obtaining a story without meeting the standard of responsible journalism. Referring to the matters listed by Lord Nicholls, counsel submitted that the allegation had been extremely serious; the subject-matter was not a matter of serious public concern, particularly as the article was published more than a year after Mr McMaster's death; the source of the allegation was a person with an axe to grind, as the defenders were aware; the defenders had not given fair notice of any steps taken to verify the allegation, despite being called upon to do so, beyond an inspecific averment that they "received information from Nick Brown prior to publication"; the allegation was not supported by any previous investigation commanding respect; the matter was of no apparent urgency; and although the defenders published the pursuer's denial of the allegation, that was given little prominence compared with the coverage given to the allegation itself. Bearing in mind the public interest that the reputation of political figures should be protected against false allegations, as well as the public interest in freedom of expression, it was not in the public interest in the present case that the public should be informed of the newspaper's conclusion that a grave accusation made by a hostile source with an axe to grind was correct. It was important to ensure that Reynolds was not developed in a way which enabled purveyors of irresponsible statements to find a platform for widespread publication. In addition to the authorities already mentioned, counsel cited Blackshaw v Lord [1984] Q.B.1; Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 536, [2002] Q.B.321; Loutchansky v Times Newspapers Ltd (Nos. 2-5) [2001] EWCA Civ.1805, [2002] Q.B.783; English v Hastie Publishing Ltd, 31 January 2002, Q.B.D.; MacIntyre v Chief Constable of Kent [2002] EWCA Civ.1087, [2003] E.M.L.R.9 and Kearns v General Council of the Bar [2003] EWCA Civ 331.
  69. It appears to me to be important at the outset to have clearly in mind the stage which the present action has reached and the nature of the court's function at this stage. As Lord Hope of Craighead observed in Reynolds (at page 236), there have been Scottish cases in which the question of law, whether the occasion of a communication was privileged, has been determined as a preliminary issue at the stage when the pursuer was seeking the approval of the issues. His Lordship also noted, however (at page 235) that there are cases where it may be necessary to resolve some questions of fact before the issue of law can be addressed as to whether the occasion was privileged. That issue can even be addressed in the course of a jury trial, as appears from such cases as Reid v Coyle (1892) 19R.775, James v Baird 1916 S.C.(H.L.)158 and Hayford v Forrester-Paton, 1927 S.C.740.
  70. At the present stage the court can only dismiss the action, on the basis that the occasion in question was privileged, if that is the only conclusion which can be drawn from the pursuer's averments: if, in other words, the pursuer's averments demonstrate that the occasion was privileged and do not raise the issue of malice, with the consequence that she has failed to make relevant and specific averments which, if proved, would establish her entitlement to reparation. In Reid v Coyle, for example, the court examined the pursuer's averments and concluded that it was not "absolutely plain" (per Lord Justice-Clerk MacDonald at page 776) that those averments disclosed that the occasion in question was privileged. In James v Baird, Lord President Strathclyde said (1916 S.C.510 at page 517):
  71. "It is conceded that it is for the Court to decide whether or not an occasion is privileged. I am of opinion that the Court must decide that question on the facts as averred by the pursuer, or admitted or proved ...."

    In Hayford v Forrester-Paton, Lord Hunter said (at page 759):

    "Although it is for the judge to decide whether an occasion is privileged, it is not always possible for him to come to a conclusion upon averments. He may have to know the facts, for, if he is to determine without inquiry, he must be satisfied, on the pursuer's averments alone, that the occasion is privileged".

    Lord Ormidale's Opinion in the same case is to similar effect (at page 757). The case of Bruce v Leisk (1892) 19R. 482, cited by Lord Hope in Reynolds, is a further illustration of the same approach.

  72. On the other hand, whether the defender has made relevant averments in support of a defence of qualified privilege depends upon a consideration of those averments. The remaining Scottish cases cited by Lord Hope illustrate circumstances in which no relevant averments of privilege had been made.
  73. In relation to the circumstances which render the publication of a newspaper article an occasion to which privilege attaches, parties were agreed that the appropriate starting point was the occasion of the House of Lords in Reynolds v Times Newspapers Ltd, and in particular the speech of Lord Nicholls of Birkenhead. In Reynolds, the House of Lords rejected a submission that there should be a generic privilege extending to the publication of political information to the public at large. While recognising that the publication to the world at large of political information might properly attract protection, their Lordships decided that it remained necessary, on a case-by-case basis, to examine the circumstances of publication before determining whether the public interest was served by treating the occasion as one of qualified privilege. In that regard, Lord Nicholls (with whose speech Lord Cooke of Thorndon and Lord Hobhouse of Woodborough expressed their agreement) made clear the importance of having regard to all the circumstances, citing (at page 195) the statement of Lord Buckmaster L.C. in London Association for Protection of Trade v Greenlands Ltd [1916] 2 A.C.15 at page 23 that the court had to consider "every circumstance associated with the origin and publication of the defamatory matter". Lord Nicholls continued:
  74. "Whether the public interest so requires [viz. requires that publication to the world at large should be privileged] depends upon an evaluation of the particular information in the circumstances of its publication. Through the cases runs the strain that, when determining whether the public at large had a right to know the particular information, the court has regard to all the circumstances. The court is concerned to assess whether the information was of sufficient value to the public that, in the public interest, it should be protected by privilege in the absence of malice".

    Later in his speech (at page 205) Lord Nicholls identified, non-exhaustively, some ten matters which might be relevant to this evaluation:

    "Depending on the circumstances, the matters to be taken into account including the following. The comments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true. 2. The nature of the information, and the extent to which the subject matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8.  Whether the article contained the gist of the plaintiff's side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. 10. The circumstances of the publication, including the timing".

  75. In his dissenting speech, Lord Hope of Craighead observed that qualified privilege attached to an occasion and that it was therefore necessary to identify whether the occasion was such as to attract the privilege. To make this identification, it was necessary to examine the nature of the material, the persons by whom and to whom it was published and in what circumstances. The circumstances relevant to the question whether the occasion was privileged were however distinct from those which were relevant to the separate question whether the occasion had been abused. In that regard, Lord Hope expressed the opinion (at page 237) that certain of the matters listed by Lord Nicholls - the use of sources, whether comment was sought from the plaintiff, and whether the article contained the plaintiff's side of the story - were relevant to the question whether the defendants abused the occasion, rather than to the question whether the occasion itself was privileged. In that connection, Lord Hope explained (at page 236) the differences between these questions, the latter being a question of law for the judge, and the former being a question of fact which, if the trial were by jury, the jury must decide. Lord Hope observed that this separation of functions had been clearly identified in Scottish case-law, and, as I have mentioned, cited a number of Scottish cases in which the question whether the occasion was privileged had been decided as a preliminary issue of law.
  76. On the same day as the Reynolds judgment was delivered, the Judicial Committee of the Privy Council (similarly constituted) issued its judgment in Lange v Atkinson [2000] 1 N.Z.L.R.257, which concerned the same issues. In its judgment, delivered by Lord Nicholls, the Judicial Committee stated (at page 263) that there was a high content of judicial policy in the solution of these issues; that different solutions might be reached in different jurisdictions; and that within a particular jurisdiction the necessary value judgment might best be made by the local courts.
  77. Thereafter the New Zealand Court of Appeal held, in Lange v Atkinson [2000] 3 N.Z.L.R.385, that the steps taken to verify the information, the seeking of comment from the person defamed, and the status or source of the information, were not relevant to the question whether the occasion was privileged (in the context of newspaper publications concerning political matters), although they might be relevant to the question whether the occasion had been misused. Like Lord Hope (whose speech it considered in some detail), the Court of Appeal was concerned to protect the division between the existence of qualified privilege and the judgment as to its misuse. It considered that the approach adopted by the majority of their Lordships in Reynolds blurred this divide and reduced the role of the jury, which it regarded as being of constitutional significance in this context.
  78. The decisions in Lange v Atkinson, and Lord Hope's dissenting observations in Reynolds, were mentioned in passing in the course of the discussion before me; and they are of assistance in understanding the significance of the decision in Reynolds. It was however common ground, as I have mentioned, that the speech of Lord Nicholls in Reynolds gave authoritative guidance as to the defence of qualified privilege, in the kind of setting presently under discussion, in Scots law as well as English law. In the circumstances, I proceed on that basis; nor do I intend to suggest that any other approach should be adopted. Since this appears to be one of the first Scottish cases in which Reynolds has been considered, however, it is appropriate that I should make it clear that there was no suggestion that Scots law might adopt a different approach, or that Scottish authorities pre-dating Reynolds might require me to do so.
  79. The English cases subsequent to Reynolds illustrate the application of the Reynolds approach to a variety of fact situations, some of which are remote from, and others closer to, the facts of the present case. One development emerging from certain of these cases is of particular interest in the present context. In Reynolds, the House of Lords reaffirmed the explanation of malice given by Lord Diplock in Horrocks v Lowe [1975] A.C.135 at page 149. Thus Lord Nicholls said, at page 194:
  80. "If desire to injure was the dominant motive the privilege was lost. Similarly, if the maker of the statement did not believe the statement to be true, or if he made the statement recklessly, without considering or caring whether it was true or not".

    Similarly, at page 201, his Lordship said:

    "Freedom of speech does not embrace freedom to make defamatory statements out of personal spite or without having a positive belief in their truth".

    The other speeches were consistent with this approach (see e.g. Lord Cooke of Thorndon at page 219, Lord Hope of Craighead at page 236 and Lord Hobhouse of Woodborough at page 239).

  81. The subsequent English cases however illustrate the difficulty, of which Lord Hope had warned, of maintaining (on the Reynolds approach) the traditional distinction between the question of law whether the occasion was privileged and the question of fact whether the occasion was abused (in other words, whether there was malice), particularly in relation to the issue of verification. Thus, for example, in Al-Fagih v HH Saudi Research & Marketing (UK) Ltd (the subsequent authority on which counsel for the defenders placed greatest reliance), it was held to be in the public interest for certain allegations made in the course of a political dispute to be reported, as allegations, without the newspaper attempting verification.
  82. The difficulty of reconciling the Reynolds approach with the traditional treatment of malice was recognised by the Court of Appeal in Loutchansky v Times Newspapers Ltd (Nos.2-5). Describing the Reynolds case as a "striking departure ... from the earlier approach", the court said (at para.32) that:
  83. "Reynolds privilege (as we shall call it), although built upon an orthodox foundation, is in reality sui generis".

    The court explained that remark as follows:

    "33. Whereas previously it could truly be said of qualified privilege that it attaches to the occasion of the publication rather than the publication, Reynolds privilege attaches, if at all, to the publication itself: it is impossible to conceive of circumstances in which the occasion of publication could be privileged but the article itself not so. Similarly, once Reynolds privilege attaches, little scope remains for any subsequent finding of malice. Actual malice in this context has traditionally been recognised to consist either of recklessness, i.e. not believing the statement to be true or being indifferent as to its truth, or of making it with the dominant motive of injuring the claimant. But the publisher's conduct in both regards must inevitably be explored when considering Lord Nicholls's ten factors, i.e. in deciding whether the publication is covered by qualified privilege in the first place. As May L.J. observed in GKR Karate (UK) Ltd v Yorkshire Post Newspapers Ltd [2000] 1 WLR 2571, 2580:

    'If the judge decides that the occasion was not privileged, the issue of malice does not arise. If the judge decides that the occasion was privileged, he must have decided that, in all the circumstances, at the time of the publication, including the extent of ... inquiries, the public was entitled to know the particular information available .... without [the journalist] making further inquiries. It is a little difficult to see how the same inquiries which objectively sustained the occasion as privileged would be capable of contributing to a conclusion that subjectively she was recklessly indifferent to the truth or falsity of her publication'.

    34. Similarly in Al-Fagih v HH Saudi Research and Marketing (UK) Ltd [2002] EMLR 215, when deciding that verification may well not be necessary or even appropriate in a case of neutral reportage, we concluded that the reckless form of malice could not run. Although that left outstanding the claimant's plea of malice on the basis that the publisher's dominant motive had been to injure him, it may be doubted whether in truth there remains room for such a principle in a case of Reynolds privilege. Once the publication of a particular article is held to be in the public interest on the basis of the public's right to know, can the privilege really be lost because the journalist (or editor?) had the dominant motive of injuring the claimant rather than fulfilling his journalistic duty? It is a surprising thought".

    The court concluded (at para.35) that Reynolds privilege was "a different jurisprudential creature from the traditional form of privilege from which it sprang".

  84. The court went on to explain the correct approach to determining whether Reynolds privilege attaches. In that regard, the court said:
  85. "36. The interest is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed. The vital importance of this interest has been identified and emphasised time and again in recent cases and needs no restatement here. The corresponding duty on the journalist (and equally his editor) is to play his proper role in discharging that function. His task is to behave as a responsible journalist. He can have no duty to publish unless he is acting responsibly any more than the public has an interest in reading whatever may be published irresponsibly. That is why in this class of case the question whether the publisher has behaved responsibly is necessarily and intimately bound up with the question whether the defence of qualified privilege arises. Unless the publisher is acting responsibly privilege cannot arise.


    41. In deciding in any given case whether the standard of responsible journalism has been satisfied, the following considerations are likely to feature prominently in the court's thinking.

    (i) If the publication is held privileged, that, to all intents and purposes, will provide the publishers with a complete defence. In this class of case, as already observed, a finding of privilege will effectively pre-empt a finding of malice ....

    Accordingly, if the defence is established, that, as Gray J pointed out in Loutchansky v Times Newspapers Ltd (No.4) [2001] EMLR 898, 905, para.16, has 'the effect of denying any remedy, whether by way of compensation or other vindication, to a person who has been libelled'. The damaging consequences of that, not merely for the aggrieved individual but for society at large, are highlighted by Lord Nicholls in Reynolds's case [2001] 2 AC 127, 201:

    'Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society which are fundamental to its wellbeing: whom to employ or work for, whom to promote, whom to do business with or to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged for ever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. For it should not be supposed that protection of reputation is a matter of importance only to the affected individual and his family. Protection of reputation is conducive to the public good. It is in the public interest that the reputation of public figures should not be debased falsely'.

    (ii) Setting the standard of journalistic responsibility too low would inevitably encourage too great a readiness to publish defamatory matter. Journalists should be rigorous, not lax, in their approach. It is in the interests of the public as well as the defamed individual that, wherever possible, truths and not untruths should be told. This is in the interests of the media too: once untruths can be published with impunity, the public will cease to believe any communications, true or false.

    (iii) Setting the standard too high, however, would be no less damaging to society. This would deter newspapers from discharging their proper function of keeping the public informed. When determining in respect of any given article whether or not it should attract qualified privilege, the court must bear in mind the likely impact of its ruling not only upon the case in hand but also upon the media's practices generally. Qualified privilege ordinarily falls to be judged as a preliminary issue and before, therefore, the truth or falsity of the communication is established. The question to be posed is accordingly whether it was in the public interest to publish the article, true or false, rather than whether it was in the public interest to publish an untruth. Even, moreover, when the untruth of the article is established (or when, as here, it is not formally disputed), it is important to remember that the defence of qualified privilege tolerates factual inaccuracy for two purposes: first so as not to deter the publication sued upon (which might have been true); and secondly so as not to deter future publications of truthful information".

    In the discussion before me, it was common ground that the approach described in these passages should be followed also in Scots law. I accordingly proceed on that basis.

  86. The application of this approach to the evidence in a case may involve difficult questions of judgment. Its application to the pleadings in the present case, with a view to determining the limited questions which arise at this stage, appears to me however to be more straightforward.
  87. Considering first the defenders' submission that the action should be dismissed on the basis that the occasion was privileged, it appears to me to be impossible to draw from the pursuer's averments the conclusion that the standard of responsible journalism has been satisfied. The pursuer avers that the allegation published in the article was an extremely serious charge, that its source was obviously not reliable or impartial, and that the article was poorly researched. The defenders' averments in answer are denied. In these circumstances, to suggest that the pursuer's averments demonstrate that Reynolds privilege (as explained in Loutchansky) existed would be absurd.
  88. Considering next the pursuer's submission that the defenders' averments are not relevant to establish a defence of qualified privilege, it appears to me that I could only uphold that submission if it was apparent at this stage that such a defence could not be established after evidence had been led on the basis of those averments. I am not so satisfied. The approach to Reynolds privilege explained in Loutchansky requires the court to make sensitive judgments about the conduct of journalists which may be influenced by the flavour of the case as it emerges from the evidence, and by a fuller understanding of the factual context than can be derived from pleadings alone. In the present case, in particular, it appears to me that the evidence may shed light on several of the matters which were discussed in submissions, including the existence (or non-existence) of a public interest in being informed of the allegation with or without its being verified, and the related issue of the adequacy (or inadequacy) of the defenders' attempts to verify the allegation. In those circumstances, it would be premature to reach a concluded view on the parties' competing contentions without such assistance as the evidence may provide.
  89. Conclusions

  90. For the foregoing reasons I shall repel the defenders' pleas-in-law of veritas, fair comment and Parliamentary privilege and exclude from probation their averments concerning those issues. I shall also exclude from probation their averments to the effect that the words complained of did not have a defamatory meaning. The pursuer's pleas-in-law will be sustained to that extent. As the parties were agreed that, failing the dismissal of the action or the granting of decree de plano, a proof before answer would be appropriate, I shall allow such a proof on the remaining averments.

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