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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cunningham v. Scotsman Publications [1986] ScotCS CSOH_1 (27 November 1986)
URL: http://www.bailii.org/scot/cases/ScotCS/1986/1987_SC_107.html
Cite as: [1986] ScotCS CSOH_1, 1987 SCLR 314, 1987 SLT 698, 1987 SC 107

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JISCBAILII_CASE_SCOT_DELICT

27 November 1986

CUNNINGHAM
v.
THE SCOTSMAN PUBLICATIONS LTD. CUNNINGHAM v. D. C. THOMSON & CO. LTD. CUNNINGHAM v. GEORGE OUTRAM & CO. LTD

At advising, on 27th November 1986, the Lord Ordinary allowed a proof before answer.

LORD CLYDE'S OPINION.—These three actions which have come before me on procedure roll raise the same point. In each action the pursuer, Mr David Cunningham, is seeking damages from the proprietor and publisher of a newspaper for an alleged slander in a newspaper article. In each case the article in question was said to have been published in the respective newspapers on 5th April 1984. There are differences in the text of the respective articles but the substance is to the same effect and each contains a passage in broadly similar terms which forms the basis for the pursuer's allegations of slander.

In each case the article is concerned with proceedings which took place in the Court of Session before Lord Cameron in the vacation court on 30th March 1984. On that occasion an application for interim interdict was made in an action at the instance of J. Fraser Construction Ltd. against (first) Mercantile Developments Ltd., (second) Mr David Cunningham, the pursuer in the present actions, and (third) a Mr James Shanks. The action concerned an alleged transfer of certain shares to among others Mr David Cunningham and the capacity in which he and the others were alleged to be holding these shares. The application before the vacation court was made ex parte with no appearance for the defenders in the action. The summons had been signetted but had not yet been served. In the action against The Scotsman Publications Ltd., the defenders aver inter alia as follows:

"Explained and averred that the said article reported the order made by Lord Cameron in the vacation court on the said date together with the allegations made by the pursuers to that action in their pleadings and which were founded upon by them for the purpose of seeking the said order. On the said date the sitting of the vacation court was being covered for the defenders by Mrs Chris Mackay, a reporter employed by United News Service (Edinburgh) Ltd. Mrs Mackay is an experienced court reporter and has covered the Court of Session in Edinburgh for many international newspapers over a period of 12 years. At or about 4.15 p.m. on the said date, counsel appeared at the bar of the court on behalf of the pursuers in the said action above condescended upon. He referred Lord Cameron to the case and summons before the court and asked the vacation judge to grant interim interdict in terms of the fifth conclusion thereof. On the basis of the averments in support of the said conclusion Lord Cameron pronounced the said order. The next week Mrs Mackay and another reporter went to the general department of the Court of Session and asked to see the summons relating to the said action. It was given to them without question. Both reporters then made abstracts from the summons and forwarded them to their newspapers."

Similar averments appear in the action against D. C. Thomson & Co. Ltd. In the action against George Outram & Co. Ltd., the corresponding passage in the defences was accepted as being substantially to the same effect but it is different in some respects and reads as follows:

"The said article reported the order made by Lord

Cameron in the vacation court on the said date together with the allegations made by the pursuer in his pleadings which were founded upon by him for the purpose of seeking the said order. A copy of the said summons was made available to the defenders' reporter by the general department of the Court of Session as is normal practice. The said article was a fair and accurate report of the said proceedings. The said article was privileged."

In amplification and clarification of these averments it was expressly accepted by senior counsel for the defenders in all three actions at the procedure roll hearing before me that the summons had not been read out in court. The articles which were subsequently published on 5th April 1984 went beyond what had been said aloud in court at the hearing and reproduced certain of the averments in the summons evidently obtained from an inspection of the terms of the summons in the general department. In particular each of the articles reported the allegations in the summons which the pursuer now claims were false and calumnious. The respective articles and the summons are incorporated in the pleadings and my attention was drawn to their terms. The pursuer avers that in July 1984 a minute of abandonment was lodged in the action raised by J. Fraser Construction Ltd. and that that action was subsequently dismissed.

In each action the defenders table inter alia a plea, in each plea no. 3, to the effect that they were entitled to qualified privilege and had not acted out of malice. The pursuer's fourth plea in each action seeks that the defenders' third plea should be repelled as not being supported by relevant averments. The point which has been argued before me is whether a claim of qualified privilege can lie in the circumstances averred.

There is no doubt as to the general law applicable here. It is clear that a statement by counsel addressing a court is subject to absolute privilege and the same holds good with regard to a written statement by counsel in his pleadings. The allegations in the summons here, if defamatory, were accordingly privileged. In general anyone who repeats a defamatory statement may himself be liable for defamation. But an exception is recognised in relation to the reporting of what took place on a privileged occasion such as the proceedings in a court of law. This, as Lord Kyllachy observed in a passage which I quote later in Wright & Greig v. Outram & Co. (1889) 16 R. 1004; (1890) 17 R. 596, is an exception based on public policy. The exception is to the effect that if what is said publicly in open court is reported fairly and accurately then the person so reporting may be protected by a qualified privilege, that is to say that he is not answerable for the circulation of defamatory material in the absence of proof of express malice. That position was accepted by both parties in the present case and it was also accepted, under reference to the case of Pope v. Outram & Co. 1909 S.C. 230, that the onus is on the defender in an action of defamation to prove that his report is fair and accurate. It was also recognised by both parties that a newspaper reporter is, as regards the matter of qualified privilege, in no different position in law from that of any member of the public. As Lord Kyllachy observed in Wright & Greig v. Outram & Co. (1890) 17 R at p. 599:

"I do not, for my part, consider that any privilege whatever attaches to a newspaper report as such. If a newspaper gives circulation to a slander, it is simply in the position of any other person circulating a slander, and the general rule is that a person circulating a slander is answerable equally with the author of the slander."

The particular question before me is whether the qualified privilege exists where the offending words are not spoken

in court but are set out in a summons before the court which is founded upon in ex parte proceedings there taking place.

That the proceedings were ex parte was not founded upon as a ground of distinction in principle. As Lord Craighill recognised in the case of Richardson v. Wilson (1879) 7 R. 237, at p. 240, ex parte cases may be heard in open court and if they are "nothing is published but what occurs in Court", as opposed to the case of an ex parte writ which has not been before the court at all and so anything published of it is not a report of a judicial procedure. This point was echoed by Lord Deas at p. 242. In Kimber v. The Press Association Ltd. [1893] 1 Q.B. 65 a report of an ex parte application before magistrates in open court was held to be privileged having been made fairly and accurately and without malice. While no specialty arises in connection with the point argued before me in respect of the consideration that the proceedings were ex parte it may be that a particular degree of care may require to be taken by anyone reporting a case which has been heard ex parte in order to secure that his report is fair and accurate. As the authorities to which I was referred show, as for example Wright & Greig v. Outram & Co., abridgements and omissions in a report may not necessarily deprive a reporter of the qualified privilege. But where the proceedings have concentrated on only one side of the case particular consideration may require to be given to secure that any reporting accords not only with the requirement of accuracy but also that of fairness. However, that is not a matter which is relevant to the question immediately raised in the present debate.

The pursuer's submission was that the privilege of the reporter does not extend to matter going beyond the factual detail of what went on in court, namely, the identity of the parties and the judge, the nature of the proceedings, what was said by counsel and by the judge and what the court actually did. Thus, a reporter may not set out a passage in a document to which counsel has referred but not read out because neither he nor any member of the public present in court will have heard the passage. Putting the document before the judge is not enough to constitute its publication in open court. It must be actually read out if the qualified privilege is to be available. The pursuer's argument proceeds upon the basic principle that the privilege extends to all persons, including journalists, who desire to put the public in the same position as those within the walls of the court. This principle on his approach prescribes the limit to which privileged reporting will extend. The report in the present case could only have been prepared by obtaining a copy of the summons from the general department of the Court of Session and it went beyond anything which a member of the public would have heard in court when the application for interim interdict was made. It could accordingly not be covered by the qualified privilege.

The defenders on the other hand submit that the proceedings of courts are open to the public and the public is entitled to know what is going on. The purpose of permitting the qualified privilege is to secure that the public may be assured that the court is properly carrying out its judicial function. This public assessment cannot be made if facts are to be withheld. When a document is laid before the court as the basis for the granting of an order the document is thereby published. In the present case the document in question, the summons, was before the court, it was referred to by counsel before the court, the allegations in it were founded upon by counsel and it was an interim interdict in terms of the fifth conclusion set out in the summons which he asked the court to grant. The defenders aver

that it was on the basis of the averments in support of that conclusion that Lord Cameron pronounced the interim interdict. The document was thus incorporated into what was said and the proceedings are not open to the public unless the terms of the document can be made public. Unless the contents of the documents founded upon are made public there would be a breach of the principle that the actings of the court are open to public scrutiny.

Both sides presented a full and careful examination of a number of reported cases from Scotland and elsewhere. I turn next to review these cases, starting with the Scottish cases.

The earliest of the Scottish cases was that of Richardson v. Wilson . In that case a jury trial was allowed in a defamation action where allegedly false and calumnious allegations contained in a Court of Session summons had been published in a newspaper. The summons had been called in court but no other procedure had followed on it. The defender argued that as the summons had called its contents were the property of the world and their publication could no more found an action for defamation than a report of proceedings in open court. Lord Craighill held that the calling of a summons did not result in its publication and allowed an issue.

While the case is thus distinct from the present the opinions delivered are of relevance in principle, although care is to be taken in remembering the context in which the observations were made. At the start of his opinion Lord President Inglis observed (at p. 241):

"The publication by newspapers of what takes place in Court at the hearing of any cause is undoubtedly lawful; and if it be reported in a fair and faithful manner the publisher is not responsible though the report contains statements or details of evidence affecting the character of either of the parties or of other persons; and whatever takes place in open Court falls under the same rule, though it may be either before or after the proper hearing of the cause. The principle on which this rule is founded seems to be that, as Courts of justice are open to the public, anything that takes place before a Judge or Judges is thereby necessarily and legitimately made public, and, being once made legitimately public property, may be republished without inferring any responsibility."

Lord Deas agreed but added (at p. 242) that he did so "with this qualification (if qualification it be) that in saying that whatever takes place before a Judge may be reported, I do not mean (nor do I understand your Lordship to mean) that all papers whatever which have been laid before the Judge may be forthwith printed for the world at large. I do not think that follows in the least degree, and it would be very undesirable if it were to be supposed that we are giving encouragement to any such idea. The principle which lies at the root of the right to publish is that, when both parties have publicly stated their case, an impartial report will be privileged, because there may then be justice and expediency in the public knowing accurately what is passing in Courts of law, including the views urged on both sides. But documents printed ex parte, before the case has proceeded beyond the initial stage, may stand in a very different position. In this particular case I agree with your Lordship that we need not go farther into the matter than to observe that a summons is not by being called made public. Not only is it not thereby made public, but the clerk or agent are violating the rules of Court and their duty if they take upon themselves to enable anyone to publish the summons at that stage." Lord Mure agreed and stated (at p. 243):

"In coming to this conclusion I do not consider that we are in any degree

trenching upon the rule that what is publicly stated before the Judge in open Court may be published in the newspapers."

Lord Shand observed (at p. 243):

"Proceedings in open Court before a Judge may be made the subject of newspaper reports, provided always that the report be fairly and correctly stated. The public are entitled to be present to hear what occurs in open Court, and what is there published in their hearing may be again published if correctly repeated."

The expressions used by Lord Mure and Lord Shand fit with the contention of the pursuer. On the other hand the language used by the Lord President and Lord Deas is somewhat wider. Moreover there are positive indications in the case that the principle that the report should reflect what takes place in court is not absolutely restricted to what a person in the public benches would hear and see. In the Outer House Lord Craighill observed (at p. 238):

"Judicial proceedings, properly so called, are accessible to all, for the Courts of justice in this country are open; and, stating the case generally, what may be seen and heard may be published. But it does not follow from this that every step of process in a cause, whether it be taken or not taken in Court, from the calling of the summons until final judgment has been given, is an occasion on which everything which can be discovered by an examination of the process may be published to the world. Were such a rule to be recognised the right of the world to be informed of the contents of writs or productions in a suit would outstrip in point of time the right of the Court. The public, in the opinion of the Lord Ordinary, have no right and have no interest to know more than can be learned by attendance in Court. Not that some things read short, or which have only been referred to in the arguments of counsel, or in observations made by the Judge, may not sometimes be fully reported. The less or the more is a question of degree; but the public cannot demand to know, and newspaper reporters who cater for the public cannot insist on knowing, what was not intended to be published, merely because a writ or a production has been made a step in judicial procedure. The right and the interest of the public are concerned not with the statements which one party in a cause may make against his adversary, but with the proceedings in open Court, by which, between both, justice is to be administered."

In this passage his Lordship clearly recognises that occasions may occur where a report may include the full text of something which has been read short or even only referred to in what was said in court. The extent of the supplementing is a matter of degree but he suggests that it cannot go beyond what was not intended to be published. Thus the intention of the reference to the document which is not read in full may be a relevant guide. The presence of the statement in a writ or production in the process is not enough to constitute publication where there is no intention that it should be published. In the passage quoted from the opinion of Lord Deas it may be inferred also that something of documentation laid before the judge may be published.

The next case is that of Wright & Greig v. Outram & Co. In that case the court held that there had been sufficient evidence to justify a jury in holding that a newspaper report of proceedings in a bankruptcy court was not fair and accurate because it omitted to report parts of the proceedings which would have shown that the representation contained in the report as published was not true. The case did not directly raise a question of law but Lord Kyllachy referred to what he had said at the stage of the adjustment of issues in the case (reported in (1889) 16 R. 1004), stated the general rule that a person circulating a slander is answerable equally

with the author of the slander and continued ((1890) 17 R. at p. 599):

"That is the general rule, and it was at one time the absolute rule. But of late years, on the ground of public policy, a certain exception has come to be recognised, namely, that a person reporting truly—that is, fairly and accurately—the proceedings in public Courts of justice is not to be answerable for the circulation thereby of defamatory matter—at all events, in the absence of proof of express malice. On that ground, and on that ground alone, does any privilege attach to the reports of proceedings in Courts of justice, and it is a privilege entirely conditional on the truth—that is, the fairness and accuracy—of the report, and it is a privilege, moreover, which is not at all peculiar to a newspaper, but extends to all other persons who desire for any legitimate reason to put the outside public in the same position as the portions of the public who happened to be within the walls of the Court. This is, as I understand it, settled law in England, and it is also, in my view, the law of Scotland."

I should quote two other passages from the opinions of the majority of the judges in this case. Lord Justice-Clerk Macdonald observed ((1890) 17 R. at p. 600):

"The only question, as it appears to me, which was really before the jury was the question whether the defenders, in issuing their report of the proceedings, published a fair report, which, whatever it might imply in regard to the pursuers, could not be challenged as having either by addition, omission, or alteration, conveyed an impression which an accurate report would not have conveyed."

Lord Lee observed (ibid., at p. 607):

"What we have to decide is whether the verdict of the jury upon the issue submitted to them was against the weight of the evidence, and that question depends on whether this was an impartial and accurate report, or a calumnious report not justified by the fact that it was an impartial report of what took place before the Registrar. I hold it to be settled that a defamatory statement contained in a report, or what professes to be a report, of proceedings in a Court of justice is not protected by privilege unless it be impartial and fairly accurate, and the question whether it is impartial and accurate is, in my opinion, a question for the jury."

The case is concerned principally with the fairness of a report where a part of the proceedings is omitted from the report, but Lord Kyllachy's statement of the principle is at the heart of the pursuer's submission. The Lord Justice-Clerk refers to additions to the report but what he is referring to seems to me to be additions which make the report inaccurate in the impression which it gives. That does not seem to me to touch on the propriety of supplementing otherwise the spoken words. The reference to the report as being of "proceedings" leaves open the question which is before me.

In Macleod v. Justices of the Peace of Lewis (1892) 20 R 218 a copy of a closed record including averments by the pursuer which, if untrue, were libellous but omitting the defender's denial of these averments was passed to a newspaper reporter by the pursuer's agent. A summary of the record was published and the defenders wrote a letter to the newspaper describing the allegations as being libellous falsehoods and as having no foundation in fact. The letter was published and the question was whether the publication constituted contempt of court. It was held it did not. Lord Justice-Clerk Macdonald stated (at p. 220) that the handing of an incomplete record to a newspaper reporter was a grave irregularity. "Such an act is quite different from that which does occur in all the Courts of the country, viz.,the publication by the newspapers of what occurs in a case when it has been

brought to that point, that it is openly litigated in Court—evidence led, and the parties pleading. At that stage it is the recognised practice that the proceedings may reach the general public by means of fair and honest reporting. But that is manifestly a different thing to what we have here." Lord Young observed (at p. 221):

"It has frequently been remarked that the reporting of proceedings in Court is simply an enlargement of the audience which hears them in Court, but which is limited by the size of the Court room, etc. It is therefore quite right to report such discussions as those on relevancy, and the report will be privileged if it is fair and accurate. But there is no privilege for the publication of the mere pleadings, and therefore, though a litigant is privileged in the statements he makes on record, he is not privileged if he sends his pleadings (and, it is to my mind, a matter of no moment whether the record is closed or not) to a newspaper for publication."

Lord Trayner concurred and in relation to the impropriety of a person handing a record to a newspaper for publication expressly agreed that the matter of it being closed or unclosed was of no importance (p. 221). The case is of relevance in its recognition of the principle which features in the present case although the matter appears in the context of a claim of contempt of court. It is also of interest in the evident recognition of there being no distinction between an open and closed record with regard to privilege. Again however the opinions do not touch on the precise point before me.

In Pope v. Outram & Co., while Lord McLaren simply referred to the defence of privilege as relating to "a fair and accurate report of public proceedings in a court of justice", Lord Dundas gave as one of his reasons for allowing an issue the consideration that the parties were "at issue in fact as to how far the statements published … represent matter contained in pleadings read in open court". As appears from the account of the defenders' argument the pursuer did not aver that the offending paragraph was copied from written pleadings or that the statements contained in it were not made in open court. Counsel for the pursuer in that case submitted that the defenders had no privilege to publish what appeared only in written pleadings and referred to Richardson and Macleod. Lord Dundas' words might be taken to support the pursuer's approach in the present case but I do not consider that in their context they should be taken with such precision as to be intended to shed light on the particular problem before me.

The most recent of the Scottish cases referred to, Harper v. Provincial Newspapers Ltd. 1937 S.L.T. 462, deals more directly with the point before me. That case concerned a newspaper report of proceedings in the burgh court narrating a sentence of imprisonment on James Harper, 22 Gardner's Crescent, Edinburgh. That address had not been read out in open court. The said James Harper was said to be the pursuer's son. But it was the father who lived at 22 Gardner's Crescent and he claimed that the newspaper report was defamatory of him. The defenders explained that their reporter had verified the name and address from a copy of the complaint furnished by the clerk of court. It was held that the report could still be privileged. Lord Jamieson observed (at p. 463):

"While the publicity given to Court proceedings is thus the basis of the privilege, to limit its scope to what is actually said by judge, counsel or witnesses might not only render the reporting of what takes place of no interest, but might even lead to a report being misleading and unfair. Thus it not infrequently happens that, in the course of a discussion, counsel refer to the litigants simply as ‘pursuer’ and ‘defender’, and their names and designations are never openly mentioned. In such

a case it would be absurd to say that an article, correctly reporting what took place in Court, lost its privilege because the names and designations of the parties as appearing in the written pleadings had been published. Again, reference may be made to a document before the Court, and without a description of, and indeed some quotation from, the document, a report of the proceedings might be altogether unintelligible."

He went on to stress that he was dealing with a complaint in criminal proceedings and that the clerk had been entitled by statute to read out only the accused's name and the substance of the complaint but that the accused had pled guilty to what was contained in the complaint. He concluded:

"I cannot hold that the report loses its privilege because it publishes information contained in the document which was the whole basis of the proceedings in Court, and as to the truth of what was contained therein the accused made public confession. I am, accordingly, of opinion that the article in question, if otherwise privileged, will not lose its privilege merely because the accused's address was taken from the complaint and not actually stated in open Court."

The case of Harper illustrates the propriety of supplementing in a report what has been said aloud in open court as was envisaged by Lord Craighill in Richardson. But Harper did not concern the reporting of allegations which were not voiced in open court. Thus counsel for the pursuer sought before me to distinguish the case from the present in respect that it did not relate to the grounds for a decision. On the other hand it does provide an example of a case where the whole terms of a document which was at the heart of the proceedings were treated as having been published although only a summary of them was given orally and verbally in court.

I may mention at this stage that reference was also made to the fourth edition of a work by Dr Clive and two experienced law correspondents entitled Scots Law for Journalists. It was referred to by counsel for the pursuer not as an authority but as containing a clear summary of the position for which they were contending. It is also of interest in reflecting an understanding of practice. In para. 305 the authors advise on the special care to be exercised in the reporting of ex parte applications for interim interdict. It is considerations of fairness in the making of any report which are here paramount and in para. 307 it is indicated that even where an ex parte application is refused in circumstances of particular public interest a report may be published and that the reporter may seek from the court staff the particulars necessary to prepare a report including the names and addresses of the parties. In para. 308 the sum total of what he is entitled to obtain is said to be the terms of the crave plus the names and addresses of the parties and the names of their counsel and solicitors. Counsel for the pursuer took that passage as a useful summary of their position. However I am not confident that that passage goes as far as they submit. It is related partly to the provisions of a standing instruction to Court of Session staff and it also indicates that there may be published such statements as may elucidate the complaint on which the court order is granted. I note further that in para. 288 it is recognised that a closed record may when a hearing has begun be taken as read in open court even although its contents are not actually read out. Further, in para. 610 the authors state that privilege may also protect statements derived from documents which are merely referred to expressly or impliedly in open court although in the following paragraph it is suggested that the safest rule is to regard information taken from the written documents in a case as privileged after the case comes up

in open court only if it is read out in open court. The authors are clearly conscious of the delicacy and difficulty of affirming a precise rule.

The Scottish cases disclose the general principle that a fair and accurate report of what takes place in court may be protected by qualified privilege but they do not clearly define the scope of the application of that principle for the purposes of the present case. They do not, in my view, affirm the proposition that the report must be limited to what is said and read aloud in open court. Indeed the propriety of some supplementing of that source has been recognised. But the cases do not prescribe the limits of such supplementing. Furthermore the various judicial dicta in the cases may not always be safely taken beyond the context of the circumstances with which the particular case was concerned.

In the absence of direct authority on the point in issue, counsel sought to explore the principle behind the cases and the reasons for that principle. This leads to a consideration of certain English cases and one from New Zealand where the same principle as has been recognised in the Scottish cases has been analysed and applied. The earliest of the English cases referred to was Kimber v. The Press Association which, as I have already noted, illustrates the application of the rule of qualified privilege to an ex parteapplication. In that case a solicitor sued for damages for an alleged libel in a newspaper report of proceedings before magistrates. The proceedings had been an application for a summons for perjury. The application was granted but it was later dismissed on the hearing. The application was made ex parte. It was held that the proceedings were judicial proceedings in open court, that the proceedings were such as could result in a final decision, that privilege could apply even although the report was published before the final decision was given and that despite the omission of certain matters the report was fair and accurate. Lord Esher M.R. at p. 68 stated the principle as follows:

"The rule of law is that, where there are judicial proceedings before a properly constituted judicial tribunal exercising its jurisdiction in open Court, then the publication, without malice, of a fair and accurate report of what takes place before that tribunal is privileged. Under certain circumstances that publication may be very hard upon the person to whom it is made to apply, but public policy requires that some hardship should be suffered by individuals rather than that judicial proceedings should be held in secret. The common law, on the ground of public policy, recognises that there may be greater danger to the public in allowing judicial proceedings to be held in secret than in suffering persons for a time to rest under an unfounded charge or suggestion."

The next case is that of Furniss v. The Cambridge Daily News Ltd. (1907) 23 T.L.R. 705. The plaintiff in that case had been convicted of a statutory offence in the issuing of an invoice giving an inaccurate statement of the chemical ingredients of manure which he had sold. A newspaper reporter had published a version of the charge derived not from the summons on which the plaintiff had been convicted but from another document which had not been read out in court. The charge stated in that document had the words "which he knew to be false" added to the charge, which implied fraud. The Court of Appeal allowed a new trial holding that the question whether the reporter was negligent or not, which had featured in the judge's charge, was irrelevant and that the document copied by the reporter was not a record of the court. The case was thus one where wholly extraneous material being neither published in open court nor contained in a public record of the court had been added to the report. It is, accordingly,

distinguishable from the present case but it was referred to for a statement by the President, Sir Gorell Barnes, sitting in the Court of Appeal to the following effect:

"The privilege given to reports of proceedings in Courts was based on this, that, as every one could not be in Court, it was for the public benefit that they should be informed of what took place substantially as if they were present."

This formulation was adopted by counsel for the pursuer but the question remains what is included in the word "substantially".

The case of Webb v. Times Publishing Co. Ltd. [1960] 2 Q.B. 535 concerned the availability of qualified privilege to a report in an English newspaper of proceedings in a Swiss court. Notice was taken of certain of the Scottish cases. It was held that since the basis for qualified privilege lay in the concern of the British public in the administration of law in Britain, there was no general privilege attaching to reports of judicial proceedings in foreign courts but that in the circumstances of the case where the subject-matter was closely connected with the administration of justice in England and was of legitimate and proper interest to the English public qualified privilege did attach to the particular report. The foundation of all privilege was the public interest, that is a legitimate and proper interest not one due to idle curiosity or for a desire for gossip. Counsel for the defenders referred to a passage at the end of the judgment of Pearson J. where he indicated that extraneous matters not germane to the matters of public interest would not be covered by the privilege. In the course of his judgment Pearson J. identified five reasons for the privilege which I might conveniently summarise at this point. The first point is that court proceedings are open to the public and therefore reports of them should be freely permitted. Secondly, the conduct of the judge, jury and witnesses should be brought to the bar of public opinion and, by means of the press, the whole nation may be informed and enabled to form an opinion of their conduct. Thirdly, it is for the public interest that the public should learn about and be educated in the adminstration of the law in which some of them may from time to time require to play their part. Fourthly, it is preferable even for the persons affected to have publication of fair and accurate reports than circulation of rumours. Fifthly, the general advantage to the country in having the proceedings made public more than counterbalances the harm to the individuals of being defamed.

In Cook v. Alexander [1974] 1 Q.B. 279 the Court of Appeal set aside the verdict of a jury which had held that a newspaper report of a debate in the House of Lords was not fair and accurate. The report had been a selective sketch of the debate but its selective character was not held to be fatal because the presentation still fairly represented the impression of the debate on its hearers, giving prominence to the speech which made the greater impact but not excluding the reply to that speech and, moreover, the sketch contained reference to a full parliamentary report contained elsewhere in the same issue of the newspaper. The case does not bear precisely on the question before me. It relates directly to the requirement that the report be fair and accurate and it shows that that standard may be achieved despite the making of some omissions from the account of the proceedings and despite the giving of prominence to the most memorable and impressive parts of the proceedings, provided that both sides to the debate are mentioned and there is no unfair distortion. It recognises the broad principle with

which the present case depends but it does not significantly assist on the application of the principle to the present circumstances.

The New Zealand case of Lucas & Son (Nelson Mail) Ltd. v. O'Brien [1978] 2 N.Z.L.R. 289 is referred to in Gatley on Libel and Slander (8th edn.), para. 624. It concerned the publication in a newspaper of allegedly defamatory allegations repeated by the newspaper from a statement of claim which had been filed in the Supreme Court registry but on which no further steps had been taken. It was held inter alia that since the statement of claim had not been brought up or referred to in proceedings in open court, qualified privilege did not attach to it and the defence of qualified privilege should be struck out. It was also held that documents filed in the Supreme Court registry but on which no judicial action had been taken were not subject to any right of public inspection. In the course of his judgment the President (The Rt. Hon. Sir Clifford Parris Richmond) set out a summary of the policy reasons which justify the qualified privilege, adopting and enlarging upon the five factors enumerated by Pearson J. in Webb. He reviewed a number of decisions including case law from England, America, Australia, Scotland and South Africa. In the light of that review he affirmed the distinction between "what took place in open Court and that which is done out of Court by one party alone". The case thus related to a situation where there had been no interlocutory appearance in court and in that respect is distinguishable from the present. On the particular point before me, however, some light is thrown by a passage in the opinion of Duff J. in Gazette Printing Co. v. Shallow (1909) 41 S.C.R. 339 quoted by Richmond P. at p. 300. The passage is as follows:

"The publicity of proceedings involving the conduct of a judicial authority serves the important purposes of impressing those concerned in the administration of justice with a sense of public responsibility, and of affording every member of the community an opportunity of observing for himself the mode in which the business of the public tribunals is carried on; but no such object would appear to be generally served by applying the privilege to the publication of preliminary statements of claims and defence relating only to private transactions; formulated by the parties themselves; in respect of which no judicial action has been taken, and upon which judicial action may never be invoked. It is only when such preliminary statements or the claims or defences embodied in them form the basis or the subject of some hearing before, or some action by, a Court or a judicial officer, that their contents can become the object of any real public concern as touching the public administration of justice."

The last sentence in that passage is in line with the approach for which counsel for the defenders was contending before me.

Finally, reference was made to Home Office v. Harman [1981] 1 Q.B. 534; [1983] 1 A.C. 280. In that case it was held that a solicitor who obtained documents including confidential documents on discovery was bound by an implied undertaking not to use them except for purposes of the litigation, that that obligation remained effective after the documents had been read in open court during a trial and that the solicitor was in contempt of court in allowing a journalist to use the documents after the trial for the purpose of writing a newspaper article. In the Court of Appeal Templeman L.J. ([1981] 1 Q.B. at p. 561) observed that the rule that court proceedings must be held in public should not be exploited for purposes that have nothing to do with the administration of justice. In the House of Lords Lord Diplock ([1983] A.C. at p. 303) quoted from Bentham the reason for having cases heard in open court in these terms:

"Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial." Lord Diplock went on to note the side effects which have to be accepted because of the importance of maintaining the general rule, one of which is that a document read out in court can be copied in shorthand by anyone and published as a report of the proceedings even although it is later held to be inadmissible in evidence. The Dean of Faculty referred to the case to support his contention that it was the reading out of a document which gave it publicity and to stress the undesirability that something in a document not read out should be published. But as counsel for the defenders pointed out the case is concerned with a question distinct from the present. Indeed Lord Diplock stated that the case was not about freedom of speech, freedom of the press, openness of justice or documents coming into "the public domain" ([1983] A.C. at p. 280). It is in the context of a question of the duty on a solicitor in relation to confidential documents obtained by discovery and of the contempt of court involved in their being made available for a purpose other than the litigation that the observations in the case must be understood. But counsel for the defenders also pointed out that Lord Roskill after noting the consequences of reading out a document and the variations in practice regarding the extent to which documents may be read out, observed (at p. 324):

"I mention these matters because a rule which made freedom of access to discovered documents depend upon whether or not particular documents are actually read aloud could and well might operate capriciously; and for one letter to be freely available because it had been so read while the answer to it remained subject to the undertaking seems, at least to me, difficult to justify in principle."

I was also informed that the case of Harman was referred to the European Commission of Human Rights and the application was held admissible on 15th May 1984.

I have referred at some length to the case law which was canvassed before me not only to see how far guidance can be found for the solution of a problem not directly decided in those cases but also to ascertain the principles which lie behind the decisions. Counsel on both sides recognised that the present question fell to be determined by reference to principle. In my judgment the case law and the principles behind the decisions tend to favour the defenders' contention.

The basis for the qualified privilege in reporting is to be found essentially in the principle that in general the proceedings of a court are open to public knowledge and public scrutiny. This principle is well recognised in Scotland. As is stated in Mackay's Practice of the Court of Session (Vol. 1, p. 90) the court sits both for the hearing of cases and for the advising of them with open doors. Reference was made to the Act 1693, c. 26, requiring the judges under the procedure then in use to discuss and vote on their decisions in public, a course which did not commend itself to Lord Stair (Institutions, App., para. 7, p. 793: see also Erskine, Institutes, IV.i.71). The Act illustrates the importance which has been put on the principle that the judicial process should be open to the public. Of the general rule relating to court proceedings today as stated in Mackay's Practice, there can be no doubt, although exceptions require to be made in certain special circumstances.

It is evident that for public confidence in the administration of justice to be maintained the public must be able to see and hear the proceedings for themselves. They must be able to attend a court and see and hear what goes on. But their attendance will be of little point if the proceedings are so conducted that

the communications made in open court between counsel and the judge are not disclosed. The substance of the matter discussed in the proceedings may be of such complexity or technicality as to be beyond the ready understanding of every particular visitor, but if the public are to be informed of the proceedings, the proceedings ought to be intelligible. If justice is to be seen to be done what is done must be open to inspection. The public must have at least the opportunity of understanding what is going on and if they do not have the opportunity I do not consider that the hearing is a public one. If the hearing is a public hearing then it does not seem to me that that characteristic is destroyed simply because for perfectly proper reasons of convenience a document is referred to and not read out in full. Where a document had been incorporated into what counsel has said, the proceedings cannot be said to be open to the public unless the terms of the document can be seen by the public.

Of course there must be exceptions to the general rule and these exceptions may also be found to be justified by other considerations of public interest and public policy in the administration of justice. Cases occur and circumstances may arise where it is proper for the doors of the court to be closed. Of course too there are practical considerations which, in the proper control and management of the court's business necessarily impose some restraint on the understanding of the bystander. It would not be practicable to circulate copies of documents referred to in open court around the public benches. But these considerations should not detract from the general principle of openness in judicial proceedings. As I have already noted so great is the danger of secrecy regarded that it is considered preferable to secure publicity albeit at the cost of private hardship. Furthermore, there is a clear advantage in enabling the public to know with certainty and accuracy what has passed in court rather than leaving them to rely on rumour or speculation and the reporting of proceedings may be found to be unfair or misleading if access to pleadings which have been founded upon in open court is not allowed. In order to make a realistic application of the principle to the circumstances of the present case, I cannot restrict the availability of the privilege to a report of what is actually read out in court. The test in my view is not what is actually read out—although all that is read out is published—but what is in the presentation of the case intended to be published and so put in the same position as if it had been read out. If it is referred to and founded upon before the court with a view to advancing the submission which is being made, it is to be taken as published. I find support for the views which I have expressed in the cases to which I have referred, and in the Scottish cases in particular those of Richardson and Harper.

Counsel for the pursuer submitted that the principle for which the pursuer contended provided a useful, clear and ready rule for the journalist. But the pursuer's approach while superficially attractive in its apparent clarity and simplicity seems to me in truth to be artificial and unsatisfactory. To determine the scope of privileged reporting by reference to the method of communication between counsel and judge seems to me to involve the adoption of a standard which could be fixed by chance, caprice or idiosyncrasy. The decision to read or not to read passages in the pleadings may depend on a variety of circumstances, such as whether or not the judge has had an opportunity to read the pleadings in advance of the hearing, whether counsel wishes to emphasise a passage or satisfy himself that the judge has fully noted the significance or importance of a passage,

whether the matter is so plain and so fully pled that by reading short, or by merely indicating the subject matter of successive paragraphs, the whole case can be explained, or whether the matter is so urgent that pleadings prepared in haste require to be read and enlarged upon in oral submission. Styles of advocacy may vary substantially and one advocate may, in his own style, prefer to read passages of pleadings where another in the same case would summarise or simply make reference. I have already referred to the observations of Lord Roskill in the Harman case about the capricious operation of a rule which depended upon the reading aloud or the not reading aloud of a document. That thinking is applicable here.

Further, while at first sight the rule proposed by the pursuer seems precise, once it is admitted, as it must be, that some supplementing to what is actually heard in court is permitted the strict simplicity of the rule begins to fade. It was accepted that the principle had to be modified in the interests of intelligibility but counsel for the pursuer sought to distinguish between supplementing in respect of the names of the parties or the terms of the order and in respect of what actually took place. But that seems to me to be too fine a distinction. If grounds for the application have been placed before the court the disclosure of those grounds seems to me to be necessary for the decision to be intelligible. Further I am not persuaded that the defenders' approach is lacking in clarity or certainty in its application although in some cases the particular circumstances may have to be studied in order to ascertain the extent of the publication.

In relation to the argument on certainty junior counsel for the pursuer submitted that it might not be necessary in some cases to rely on all of the averments in a summons in an application for interim interdict and in particular in the case of the application made by Mercantile Developments Ltd. it would not have been necessary for counsel to refer to the whole of the averments in the summons. He submitted that it would be sufficient for counsel to have stated that there was a dispute about the ownership of the shares and that on the ground of preserving the status quo interdict ad interim against the defenders should be granted. Under reference to the case of American Cyanamid Co. v. Ethicon Ltd. [1975] AC 396 he argued that it would not even be necessary to show a prima facie case on the merits; it would be enough to say that there was a colourable argument on the matter of the ownership of the shares. It was, however, pointed out in reply that the American Cyanamid case does not accurately reflect Scottish law and reference was made to the observations of Lord Fraser of Tullybelton in the case of N.W.L. Ltd. v. Woods [1979] 1 W.L.R. 1294, at pp. 1309–1310. That point in reply was in my view well taken.

A question might still remain however on the precise definition of what it was that was referred to and precisely which averments in a summons were founded upon. That is a question which does not require to be determined at this stage of the case. On the defenders' averments what was referred to and what was founded upon included the allegations now said to be defamatory and that must be a matter for proof. In the circumstances of this case the defenders say that all the averments in the summons were relied upon as they set out the background to the dispute. While some criticism was made of the lack of specification of the defenders' averments I consider that they are sufficient to go to proof and I understood them as indicating that the allegations complained of were founded upon before the court. But I should not wish to exclude the possibility that cases

could arise where a document contained matter which was quite distinct and separable from the point in issue before the court and neither relevant to it nor necessary for its determination and where such matter might not necessarily be published where other parts were founded upon. I do not have to decide such a case here although the hearing before me presented an example when counsel who opened the case by reading from the closed record expressly refrained from reading the condescendence relating to damages since it was not pertinent to the issue before me. It may be that the averments in that condescendence have not been made public. But however that may be the defenders in the present case submit that the whole summons by Mercantile Developments Ltd. was before the court and founded upon. Whether such was the case or not must be a matter for proof and I need say no more about it.

The pursuer's approach imposes a discretion on counsel and on the judge to admit or refuse the privilege by reading the allegedly defamatory passage aloud or by keeping it to themselves. The Dean of Faculty submitted that counsel should have this freedom to preserve matters as confidential and that counsel was best placed to decide what should not be published. Counsel for the defenders submitted in reply that the pursuer's approach placed an invidious burden on the court and could expose it to public criticism or even suspicion. Both approaches however impose some responsibility on counsel in the decision whether to allow or prevent disclosure and publication. Moreover the court already has the responsibility of deciding whether a hearing should be within closed doors. But while these controls exist over what is or is not to be published, it seems to me that by making publication depend upon whether or not a document which is founded upon in open court is, or is not, read aloud by counsel or judge in open court, suspicion of secrecy may more easily be invited and the broad purpose which lies behind the principle of openness may be put at the risk of frustration.

The pursuer's counsel argued that on the defenders' approach the reader of the reporter's account which included the text of the document referred to in court would have an advantage over the person listening in court who would only have had a reference to the document and that this would be a breach of the general principle. But if some information may be added in a report supplementary to what has been said aloud in court it may be that the supplementary information should be available to those who are attending the court as well as those who are not. Considerations of practicability will obviously arise in that regard. It may not be practicable to make supplementary information immediately available. But it may be that in this matter the newspaper reporter has a responsible role to play in enabling both those within and those without the walls of the court to be equally well informed of what has taken place. The pursuer's argument in this connection does not to my mind resolve the critical issue of the extent to which a reporter may go in supplementing the spoken word.

It was further argued for the pursuer that: the summons was a document to which the public had no right of access. It was recognised in Richardson v. Wilson, to which I have already referred, by Lord Deas and Lord Shand that a summons was not published at the stage of calling and could not be published at that stage. The public had no right of access to it. Reference was also made to rules 13 and 31 of the Rules of Court 1965, the latter of which provides that the principal writ by which a process is commenced shall remain constantly in the office of court "subject to inspection by any party interested" and shall on no account be lent out subject to certain exceptions. It was submitted that the phrase "party

interested"restricted the right of inspection to a party liable to be affected by the action which had been brought and reference was made to R. v. Grech [1957] Crim. L.R. 63. However, in that case the construction of the same phrase in sec. 16 of the Criminal Appeal Act 1907 appears to have been influenced by a statutory definition contained in the Criminal Appeal Rules 1908. Nevertheless the Rule of Court clearly limits the persons who may inspect the summons. Reference was also made to rules 32 and 86 to illustrate the close control exercised over the documents constituting a court process.

On the other hand it was pointed out that Rule of Court 31 only refers to the principal summons and that every process will contain a certified copy. Furthermore, access to the process does not necessarily entail borrowing and while it was not suggested that there was any right in the public to inspect any document in a court process where a document has been made public in open court, my attention was not drawn to any provision which prohibits the inspection of a document which has been founded upon in open court.

The argument before me touched on questions of contempt of court. That was the issue in the case of Macleod to which I have referred. Reference was also made to Graham v. Farquhar 1893, 1 S.L.T. 63 where disclosure of material prior to the stage of the closed record and prior to its being mentioned in court was disapproved, and to Young v. Armour 1921, 1 S.L.T. 211 where publication of averments in an open record was held to be contempt of court. But these cases only throw an incidental light on the matter before me and in connection with contempt of court would require to be considered along with the Contempt of Court Act 1981. I should only observe that it would be unlikely that statements which could amount to contempt of court could at the same time be the subject of privilege (see Lucas at p. 296). On the other hand the accurate reporting of allegations in a summons should not constitute contempt if they have been published in open court. It was not suggested that any question of contempt of court arose in any of the circumstances of the present case and no question of that kind has to be determined here.

On the whole matter, accordingly, I reach the view that the defenders' approach to the question before me is correct. I should, however, add that while the matter was canvassed fairly widely before me the only point which I have to decide relates to allegations in a summons which was signetted but not served and which was put before the court in an ex parte application. My decision does not require to go beyond the circumstances before me. It may well be that documents other than pleadings, such as productions, stand in a different position. The defenders indeed submitted that productions would not be published unless they were led in evidence. Lord Jamieson in Harper recognised that productions were in a distinct category (at p. 464). Further I am not required to consider the position of pleadings in a closed record, in relation to which some conflict between principle and practice may be thought to exist. All I have to decide at this stage is whether in the circumstances disclosed a plea of qualified privilege may be available. In my judgment in the circumstances disclosed such a plea may be open to the defenders and I am not prepared to repel it at this stage. Whether it is a sound plea must depend upon the facts. It was agreed that if I was not going to repel the plea of qualified privilege at this stage, I should allow a proof before answer leaving all pleas standing. In light of the view at which I have arrived I shall accordingly allow such a proof.

[1987] SC 107

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