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Cite as: [2002] ScotCS 22

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    Wray v Associated Newspaper Ltd and Anor [2002] ScotCS 22 (23rd January, 2002)

    EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

    Lord Kirkwood

    Lord Nimmo Smith

    Lord Kingarth

     

     

     

     

     

     

     

     

     

    XA29/00

    OPINION OF THE COURT

    delivered by LORD KIRKWOOD

    in

    RECLAIMING MOTION

    in the cause

    JAMES WRAY

    Pursuer and Respondent;

    against

    ASSOCIATED NEWSPAPERS LIMITED and ANOTHER

    Defenders and Reclaimers:

    _______

     

     

    Act: Dorrian, Q.C., Dewar; Drummond Miller, W.S. (Pursuer and Respondent)

    Alt: Mitchell, Q.C., R.W. Dunlop; Haig-Scott, W.S. (Defenders and Reclaimers)

    23 January 2002

  1. This is a reclaiming motion at the instance of the defenders and reclaimers, Associated Newspapers Limited (hereinafter referred to as "the defenders"), against an interlocutor of the Lord Ordinary dated 14 March 2000 which awarded the pursuer and respondent, James Wray, the sum of 60,000 together with the expenses of the cause. The quantum of the award is not challenged.
  2. The award was made in an action of damages for defamation which arose out of an article which was published in "The Mail on Sunday" on 1 February 1998. The article began on the front page of the newspaper and appeared under the headlines "Shocking claims of violence in politician's marriage" and "Labour M.P. "Beat Me" says Wife". It continued on page 3 of the newspaper under the headline "He held a kitchen knife to my throat". The pursuer has been the Member of Parliament for Glasgow Baillieston since 1987. In his pleadings the pursuer founded particularly on the following statements which were contained in the article:
  3. "Catherine Wray...says she was once in hospital for three days after he punched her in the eye. On another occasion he threatened her with a knife. She said: 'He is a bully, a control freak. He says he was a boxer but I've never seen him punch anything other than a punchbag that can't hit back or a woman who can't defend herself.'

    She was hanging curtains when the violence first happened. 'I asked him to give me a hand. He was in a bad mood and he just punched me in the stomach.' Over the years she got used to the kicks and punches, trying hard not to provoke them. 'Anything would set them off - if I wasn't at home when he phoned; if I spoke to a man he didn't know...anything. He was obsessively jealous and possessive'.

    'Over the years he punched me in the chest, punched me in the stomach, kicked me in the back. Once we were on holiday in France and he wanted me to go to a street market very early in the morning. I told him he should go on his own and he kicked me in the small of the back. I just lay there and cried.'

    'He has flung me across bedrooms into wardrobes, thrown objects at me, roaring like a bull.

    'In 1990 I was in bed and he came home from London. He started to bawl and scream at me, then started punching me. I curled up in a ball.

    Then I thought if I could get to the patio door it would set the alarm off and the police would come. As I moved he punched me in the right eye. I ran and was behind the window when the police came but he told them something and they just left. The next day I went to hospital'. She told medical staff she had stepped on a brush but eventually admitted the truth to the surgeon who treated her.

    For a while everything was fine. Then, in 1993, 'I walked into our bedroom and went to pick up his trousers off the floor. He told me to get my hands off them. I snapped and threw an ornament at the wall. That was the start again. He chased me and flung me into the wardrobe'.

    'Once he pulled a kitchen knife on me, held it to my throat until it nicked me, telling me that I was doing his head in. I just stayed very still and he flung it down and went out.'

    '...he turned into an obsessional, possessive, foul-mouthed control freak who would punch and kick me for no reason at all, except that he was in a bad mood'."

  4. The defenders averred that the content of the article was true. The pursuer and Mrs. Wray, who had originally been called as the second defender, had married in 1985 and they finally separated in 1995. The defenders averred that throughout the time they were living together Mrs. Wray was physically and mentally abused by the pursuer, who would assault her by punching and kicking her for no reason. The first occasion was when Mrs. Wray was hanging curtains in the matrimonial home sometime between 18 October 1985 and 6 January 1987. She asked the pursuer if he would hold on to the bottom of the curtains but suddenly, and for no reason, the pursuer punched her in the stomach. In about 1987, during a trip to France, when the pursuer and Mrs. Wray were taking twelve drug addicts around for rehabilitation purposes, the pursuer punched Mrs. Wray in the stomach. On or about 6 January 1987 he assaulted her and the trauma to her right eye resulted in spontaneous vitreous detachment and intra-retinal haemorrhage with bi-lateral high myopia. The pursuer had often grabbed her by the throat. In 1989 they went to Nice on holiday. Mrs. Wray was in bed one morning when the pursuer wanted her to go to an early morning street market. When she said that she was too tired and did not want to go the pursuer kicked her hard in the small of her back. During a holiday in France in 1988 the pursuer had told Mrs. Wray that she was "the cleaner" and called her a "blind bastard". On 1 February 1990 Mrs. Wray was in bed asleep when the pursuer came into the house screaming and bawling. He began to strike her across the body and head and her eye was badly marked. She was referred by her general practitioner to hospital and detained there as an in-patient for four days. She went to stay with a friend but returned to live with the pursuer after he promised that he would not hit her again. However, on one occasion outside the St. Enoch Society in London he had slapped her across the face, and then grabbed her by the neck and pushed her against a wall. On another occasion he had punched her on the breast. On another occasion Mrs. Wray had brought home a Chinese meal and the pursuer had kicked it out of her hands, spilling the food all over her. In 1993, when Mrs. Wray was tidying the bedroom and went to pick up the pursuer's trousers which were lying on the floor, the pursuer had said "Get your hands off them, you bastard". She lost her temper and threw a shoe at the wall, and the pursuer threw an ornament at her. In about 1994 the pursuer had pushed Mrs. Wray into a wardrobe. In 1994 in the course of a visit to Strasbourg the pursuer had assaulted her by pushing her. In 1995 he had held a kitchen knife to her throat, touching her neck. Mrs. Wray left the house and when she returned the pursuer had gone, and he did not return to the matrimonial home again. It was admitted that Mrs. Wray had received payment of 25,500 from the defenders in respect of the article which had been published.
  5. The position of the pursuer, both in his pleadings and in the evidence which he gave, was that he had never assaulted his wife. He averred that she had had an alcohol problem throughout the period of the marriage and that she regularly consumed alcohol to excess. She had had medical problems with her eyes throughout her life and had required medical treatment. With regard to the incident on 1 February 1990, the pursuer averred that his wife had been extremely drunk and her clothes had been strewn about the floor of the bedroom and the hall. As the pursuer entered the bedroom carrying some of her clothes, she sat up in bed "and may have (the pursuer cannot be sure) struck her head in the bed headboard". She then tried to get out of bed and fell on to the floor. As she did so she struck her right eye or head on the bedside cabinet. She tried to stand up but was unable to do so and fell against the patio doors, thereby setting off the security alarm and the police attended. She had visited her general practitioner on 2 February, having awoken with a bad hangover. She had a small bruise below her eye but it had not been caused by anything done by the pursuer. She was referred to Gartnavel General Hospital, and the pursuer took her there and she was detained.
  6. The defenders led at the proof and the Lord Ordinary heard evidence over four days. We had the benefit of a full transcript of the evidence, and the evidence was summarised by the Lord Ordinary in his Opinion. In these circumstances we do not consider that it is necessary for us to rehearse that evidence in detail, except in so far as it may be necessary to do so for the purposes of considering the arguments raised in the course of the reclaiming motion. The defenders' first witness was Mrs. Wray, who gave evidence generally in line with the allegations in the article and the defenders' averments on record. In particular, she gave her account of how she had sustained her eye injury in February 1990 and we shall return to that incident in more detail later. It was suggested to her in cross-examination that she had loved to socialise, was frequently out all night and, in particular, that she had had a serious drink problem, but she denied those allegations. Miss Anne Hetherington, who was a neighbour, and who had seen Mrs. Wray about three times a week, stated that it was rubbish to suggest that the pursuer's wife was a drunk. In fact, she was scared of him because of his violence. She corroborated the Chinese meal incident in respect that she confirmed that Mrs. Wray had gone to her house covered in the food. The next witness was Mr. Francis Wray, a brother of the pursuer. He specifically denied the suggestion that Mrs. Wray was a drunk. He had seen the pursuer acting like a "raging bull". He said that the pursuer had told him that his wife's eye injury in February 1990 had been caused as the result of her striking her head against a piece of furniture while drunk in the bedroom. Susan Fulton, whose husband's parents had been next-door neighbours of the Wrays, said that she had seen Mrs. Wray in hospital after the incident in February 1990, that she looked a mess and that she had a black and blue eye and damage to her face. She completely dismissed the suggestion that Mrs. Wray was a drunk. The defenders' proof concluded with evidence from two doctors, namely Professor Dutton and Dr. Quin, Mrs. Wray's general practitioner, and we shall deal with their evidence in some detail at a later stage.
  7. The first witness for the pursuer was Mr. Wray whose evidence, as the Lord Ordinary observed, was in marked contrast to that of Mrs. Wray and the witnesses called by the defenders. The pursuer categorically denied many times that he had ever struck his wife or been violent towards her. He maintained that on countless occasions he had removed a knife from her when she had been in a drunken state and, indeed, in relation to the last incident involving a knife to which Mrs. Wray had spoken, the truth was that she had come at him with two knives which he had managed to take from her. That had been the last straw and he had left her. He maintained that she had a serious drink problem, if she was not an alcoholic. She had frequently embarrassed him in public when she was under the influence of drink. He gave his account of the circumstances in which his wife had sustained an eye injury in February 1990. The article in question had been a complete fabrication. The pursuer was followed by Mrs. Kathleen Grant, a neighbour, who stated that Mrs. Wray was frequently aggressive and frequently taunted her husband. Mrs. Wray was an excessive drinker, and she became a different person when she drank. Mrs. Grant recalled the incident in February 1990 when Mrs. Wray had come to her house with an eye injury, before she had sought medical assistance, and had told her that she had hit her head on the night stand. She had never seen any other signs of violence or injury, nor had Mrs. Wray complained to her that she was being assaulted by her husband. Mr. William Perrie, a retired councillor, spoke to the character of the pursuer, and Laura Wray, who married the pursuer in July 1999, described him as a very even-tempered, loving man who was not prone to violence. Evidence was also given by the pursuer's children from his first marriage. His daughter, Michelle, said that she had not seen any signs of violence on Mrs. Wray nor had she made any complaints that she was being assaulted. However, Mrs. Wray had a drink problem and there had been a lot of gin bottles in the house on various occasions. James Wray said that he never saw his father being violent towards his wife. Mrs. Wray's drinking was more than just social drinking and there had been incidents when she had been under the influence of drink. The last witness was Mrs. Catherine Molloy who had known the pursuer for twenty-five years and had been best maid at his wedding to Mrs. Wray in 1985. She said that she had not seen any signs of violence, nor had Mrs. Wray complained that she was being assaulted. Mrs. Wray drank a great deal, and Mrs. Molloy believed that she had a drink problem. She had seen the pursuer being embarrassed on many occasions by the conduct of Mrs. Wray, particularly when she was drunk.
  8. Before the Lord Ordinary counsel for the defenders accepted that the article in question, if false, was defamatory and that it was for the defenders to establish, on a balance of probabilities, the substantial truth of the allegations. It was not, however, necessary to prove the truth of every word, but the "sting" of the article had to be identified and shown to be true. It was accepted that the substance of the article described the pursuer as a violent, domineering bully who had committed assaults on his wife, and that is what had to be established as a matter of fact. Counsel submitted that, on the evidence, the defenders had succeeded in discharging the onus on them. Counsel for the pursuer substantially accepted that the law was as stated by counsel for the defenders but submitted that the question of onus was important. If the defenders did not prove the truth of the allegations, the pursuer must succeed. Accordingly, if the Lord Ordinary was not prepared to accept the evidence of Mrs. Wray and her supporting witnesses, then the pursuer's case must succeed.
  9. The Lord Ordinary observed that the positions of the pursuer and Mrs. Wray, on the evidence, were wholly irreconcilable. The evidence of the defenders had categorised the pursuer as a monster, while the pursuer's evidence had almost categorised him as a saint. This led the Lord Ordinary to what he described as the inevitable conclusion that neither was probably the case. He went on to observe that while the onus was on the defenders to prove, on a balance of probabilities, the truth of the allegations, strong evidence was required. The weight necessary to tip the balance in favour of the defenders had to be considerable, having regard to the very serious allegations which had been made. The Lord Ordinary also observed that, whatever view he took of the pursuer's evidence, if he was unable to be satisfied as to the credibility and reliability of Mrs. Wray, then the defenders would fail because the onus was on them and the pursuer required to prove nothing. In these circumstances he began his consideration of the evidence by making a detailed study of the evidence of Mrs. Wray in order to try to reach a position on her credibility and reliability. In that connection, he stated that the issue of drink was one of the keys that he proposed to use to unlock the credibility problem. He observed that the respective positions of the pursuer and Mrs. Wray on the issue of drink were irreconcilable, and he found it proved that, even if she was not an alcoholic, she certainly had a drink propensity and he saw no reason to doubt that when taking drink she could become belligerent. He held that her evidence did not reflect the real position so far as her drinking problems were concerned. He considered that there was too much of a pattern, in the evidence presented by and on behalf of the pursuer, to find the limited concessions which she had made in the witness box to be credible. In relation to the 1990 eye incident, he found that Mrs. Wray's account was suspect and, further, that the incident had to be looked at in the context of divorce discussions which were taking place at the time, which had given her every motive to maintain that her husband had hit her. The Lord Ordinary went on to observe that, as he had dismissed the 1990 eye incident, not much more credence could be given to the 1987 eye incident. Mrs. Wray had stated at the hospital that her eye injury on that occasion had been caused by a brush handle, and the Lord Ordinary took the view that the matter seemed to be neutral and that once again Mrs. Wray might well have had a reason for changing her story in 1990 because of the divorce discussions which were taking place. The Lord Ordinary was also critical of Mrs. Wray's evidence in relation to the first alleged punching incident. She had alleged that she had been punched in the stomach, but she said that she could not remember whether the incident had taken place before or after the loss of her child as the result of a miscarriage. He attached little weight to the incident in France in 1987. While the Chinese food incident had given him some concern, as the version to which the pursuer had spoken, namely that she had thrown the food at him and he had put up his hands to defend himself, had not been put to Mrs. Wray in cross-examination, he took the view that even if the pursuer had lost his temper, that did not in itself castigate him as a violent wife-beater and bully.
  10. The Lord Ordinary then turned to the medical evidence which had been led by the defenders. He took the view that, while it obviously gave Mrs. Wray some prima facie support, it was not enough. The high point of Professor Dutton's evidence, to the effect that a mere fall or bang against furniture would not cause the eye injury which occurred in 1990, did not seem to him to be sufficiently powerful if there were other factors pointing to, or supporting, that position. So far as the evidence of Dr. Quin was concerned, the Lord Ordinary took the view that the medical records likewise provided Mrs. Wray with little or no support, other than to show that she might have had a motive for making the allegations which she had made against the pursuer. The Lord Ordinary took the view that practically all these allegations stemmed from Mrs. Wray and stood substantially uncorroborated. The Lord Ordinary stated that it was almost incredible that over a period of ten years, when he had heard evidence from a number of people who knew the couple well, none of them could depone to any complaints or signs of violence. He could not accept that the violent conduct alleged against the pursuer would not have led either to the victim, Mrs. Wray, "complaining to her close friends, or visits to the doctor or at least signs of injury or discomfort calling for some explanation". In his view the absence of any such evidence called for an explanation to justify it and, without such justification, he did not find the weight of the evidence allegedly supporting the truth of the article to be sufficient to support it. The Lord Ordinary went on to observe that the evidence of Mrs. Molloy had impressed him. So far as the pursuer was concerned, the Lord Ordinary acknowledged that there had been some problems in relation to his evidence and the way in which he gave it, and certain of his evidence had not been put to Mrs. Wray in cross-examination. At times in the witness box he was rambling, and at other times he was obviously under severe emotional pressure, but that had not been surprising for a man in his position. The Lord Ordinary stated that he was impressed by the vehemence of the pursuer's general denials of the basic allegations made against him "which were emphatic, probably exaggerated, but impressive for that reason". It was the firm view of the Lord Ordinary that the pursuer was an honest man who felt deeply wronged, and while some of his assertions in the witness box, both positive and negative, had been exaggerated, the Lord Ordinary was satisfied that the substance of them was true in respect of the pursuer's denial of the sting in the article. On the whole matter the Lord Ordinary concluded that the defenders had failed to satisfy him with sufficient evidence that he could accept that the very grave allegations in the article were true. That being so, the plea of veritas failed and the pursuer was entitled to damages.
  11. We have referred to the eye incident on 1 February 1990 but, in view of the importance which both parties attributed to that incident, it is necessary for us to examine the evidence in greater detail.
  12. Mrs. Wray gave evidence to the effect that on the evening of 1 February she had gone to bed. In the middle of the night the pursuer had returned to the matrimonial home and had started shouting and bawling and asking where she had been. He came at her in a terrible rage and started punching her body. She had the duvet over her and he got her in the eye. She felt something terrible had happened to her eye. He had hit her in the right eye. She had a large lump on the back of her head as she had gone back against the padded headboard when he had hit her. She had tried to open the patio door and the burglar alarm had gone off. She then ran upstairs to get her step-son, James, to help her. The police arrived downstairs, and while she could have attracted their attention she did not do so. She had thought of shouting out of the window to them but had not done so, and she did not know why she had not done so. The following afternoon she had gone to see Dr. Quin, accompanied by Mrs. Grant, and he had sent her to the Western Infirmary. She had taken a taxi to the hospital on her own and she had been detained there. In cross-examination she denied that she had discarded her clothes around the house or that in a drunken condition she had fallen back and hit her head on the headboard and then, when she got out of bed, fallen against a bedside cabinet and struck her face and eye off it, and then lurched into the patio doors. The pursuer gave a quite different account. He gave evidence that he had arrived home from London at about midnight, although he later conceded, after being shown an entry from Hansard, that it had been about 3 a.m. When he got in, his wife's clothes were spread about right through the house. She was in bed asleep and there was a terrible smell of drink. He had shouted and thrown her clothes on the bed. She woke up startled, sat up and threw her head back against the padded headboard. It had been quite a thud. She had then tried to get out of bed, but she was drunk and she fell out of the bed and down to the floor. She had fallen right down and hit her face on the foot of the bedside cabinet. She then struggled up and banged into the patio doors, setting off the alarm. The police came and the pursuer went to the door, but Mrs. Wray did not come down and tell them that she had been assaulted. The following afternoon she went to see Dr. Quin and on her return to the house the pursuer saw a small yellow mark on her eye. That was the only mark on her face and, in particular, she did not have a black eye. He then took her to Gartnavel Hospital. Mrs. Grant gave evidence that she had seen Mrs. Wray after the incident and before she went to see Dr. Quin, but she said that she had not accompanied her to the doctor's surgery.
  13. Dr. Leslie Quin, Mrs. Wray's general practitioner, gave evidence that he saw Mrs. Wray at 3.30 p.m. on 2 February 1990. He thought that Mrs. Grant had come with her as she was so upset that she could not have come by herself. He spoke to finding extensive bruising above and below the right eye, including some bruising further down the face lateral to the lip. She told him that she could not see out of her right eye. She said that she had been assaulted by her husband, and Dr. Quin's note read "assaulted by hand/fist last night". She also had a lump on the back of her head. He made immediate arrangements for her to be seen at the Eye Department at the Western Infirmary. In his opinion the injuries which he noted were consistent with her account of being struck. He was concerned that she was going to lose her eye because she was so badly battered.
  14. Professor Gordon Dutton has been a consultant ophthalmologist at the Western Infirmary, and then at Gartnavel General Hospital, since 1983. Mrs. Wray had attended at the Glasgow Eye Infirmary on 6 January 1987, the history recording that her right eye had been struck accidentally by a brush handle and that she had a right retinal haemorrhage. Professor Dutton saw her on 12 February 1990 when she alleged that at the time of the injury in January 1987 she had not been struck in the right eye by the handle of a brush but had been struck by an assailant. On 12 February she said that she had again been struck in the right eye by the same male assailant twelve days earlier. It was her current partner who had injured her. She was found to have a right traumatic sub-retinal haemorrhage. In April 1990 when she was running for a train she had developed a retinal detachment, and it was very likely that it had occurred as a sequel to the previous injuries. Professor Dutton observed that Mrs. Wray had sustained two almost identical eye injuries with sub-retinal haemorrhages which were three years apart. Both injuries were consistent with her having been assaulted. The fact that she had sustained two very similar injuries was entirely consistent with the history which she had given, as it would have been very unlikely for her to sustain two random accidents causing injuries with such similarities. Mrs. Wray was the only patient that he had seen in the Western Infirmary who had had two successive injuries to the eye producing the same type of injury on each occasion. In cross-examination he conceded that so far as injuries caused by some form of blunt trauma were concerned, medical examination could not distinguish between one cause and another. Mrs. Wray had a myopic eye which was very much larger than a normal eye, and therefore was protuberant and much more likely to be damaged by being struck, as it was not protected by the bony margins. The findings in January 1987 were consistent with accidental contact with a brush handle. The 1990 injury was consistent with having been caused by blunt trauma of some kind. The two injuries had resulted from trauma coming from the same direction. He had never before seen anyone who had sustained two similar blows from similar directions. He expressed the opinion that in the case of these two injuries it was a reasonable inference that on each occasion the mechanism had been the same and the agency had been the same. There had been a direct blow to the eye on each occasion and a hand, or the corner of some structure, could have achieved the necessary penetration.
  15. It will also be appropriate to refer at this stage to the evidence given by Dr. Quin about his medical records relating to Mrs. Wray. On 19 January 1987 there was an entry relating to "Damaged right eye". Dr. Quin received a letter from Professor Dutton, who was then senior lecturer in ophthalmology, dated 27 January 1987 stating that Mrs. Wray had accidentally struck her right eye with the handle of a brush in early January. On 18 May 1987 Mrs. Wray had complained of a sore throat. The following entry on 28 May 1987 referred to persistent neck ache with swallowing and "someone grabbed my throat a few weeks ago: worry + +". An entry on 12 May 1989 stated that her husband wanted a divorce, and an entry on 23 June 1989 referred to "domestic stress". On 28 December 1989 there was an entry "Annoying ache in the right breast" and a diagram showing the area which was tender. On 7 April 1992 there was a reference to right breast pain for the last three months. Dr. Quin said that Mrs. Wray told him that she had received a blow to the breast seven months earlier. She was referred to the Victoria Infirmary by Dr. Quin's partner in 1994, and a letter dated 1 December 1994 from the registrar stated that Mrs. Wray felt that the breast pain began following her last pregnancy three years earlier and expressed the opinion that the pain was probably related to fibrocystic disease. Dr. Quin also stated that he had no reason to suspect that Mrs. Wray had an alcohol problem.
  16. Submissions on behalf of the defenders

  17. At the hearing of the reclaiming motion counsel for the defenders and reclaimers stated that the case depended on the Lord Ordinary's assessment of the evidence which had been led, and accepted that there was a heavy burden on the defenders to show that the Lord Ordinary's assessment of the evidence had been defective. It was submitted, under reference to Thomas v. Thomas 1947 S.C. (H.L.) 45, that the reasons which the Lord Ordinary had given for his decision were not satisfactory and that he had not taken proper advantage of having seen and heard the witnesses. The evidence of impartial and unbiased witnesses was of particular importance in this case, especially the medical evidence. Counsel referred to Yuill v. Yuill [1945] P. 15 and Morrison v. Kelly 1970 S.C. 65. Counsel submitted that the incident when Mrs. Wray sustained an eye injury in January 1990 was crucial to the resolution of the factual dispute between her and the pursuer. There were two sharply conflicting versions of the incident and no possible middle ground. It was conceded that, if the evidence of Mrs. Wray in relation to the 1990 eye incident was not accepted as credible and reliable, the defenders could not succeed. Mrs. Wray's account was supported by the independent medical evidence, and the Lord Ordinary had not given any satisfactory reasons for rejecting that evidence. There was medical evidence that the eye injury in January 1987 and the eye injury in January 1990 were each consistent with an assault, and Mrs. Wray had said that on both occasions her injury was caused by being struck by the pursuer. Professor Dutton expressed the opinion that it was a reasonable inference that on each occasion the mechanism and the agency had been the same. On each occasion there had been a direct blow to the eye. The 1990 injury had not been consistent with a fall against a straight-edged object, and Dr. Quin said that it was consistent with Mrs. Wray having been struck. Professor Dutton had expressed the opinion that it was very unlikely that anyone would sustain two identical eye injuries in random accidents, and that a fall against furniture would have been unlikely to have caused that particular injury. Mrs. Wray had also received a head injury at the time of the incident in January 1990, and her account of how that had been sustained was far more likely than the account given by the pursuer. The Lord Ordinary had not given any satisfactory reasons for not accepting the medical evidence in relation to the 1990 incident. Further, Mrs. Wray had stated at the time that she had been assaulted by the pursuer. When she was in hospital she had told Anne Hetherington and Susan Fulton that she had been struck by the pursuer and, of course, she had also told Dr. Quin. The Lord Ordinary did not deal with any of those statements. The pursuer's brother had given evidence that the pursuer had given a version of events after the incident which did not accord with the evidence which the pursuer had given in the witness box, but this discrepancy had not been mentioned by the Lord Ordinary who, it was submitted, had misunderstood the brother's evidence. The pursuer had originally stated that he had returned home at about midnight, and it was only after he had been shown Hansard, which established when he had been in the House of Commons that evening, that he accepted that he had not arrived home until about 3 a.m. The pursuer gave evidence that after the 1990 incident he had taken Mrs. Wray to Gartnavel Hospital. Other evidence established that that was not true and the Lord Ordinary had simply accepted that the pursuer had been mistaken. It was also significant that the pursuer gave evidence that, after Mrs. Wray had been to see Dr. Quin and had returned home, all he saw was "a wee yellow mark" on her eye. Dr. Quin, on the other hand, described extensive bruising and said that she was so badly battered that he was concerned that she was going to lose her sight in that eye. Susan Fulton, who saw her in hospital, described her face as "a mess". It was clear that on this matter the pursuer was not telling the truth but it had not been mentioned by the Lord Ordinary. The weight of the evidence was that it was the pursuer who had sought a reconciliation in 1990, but this was not dealt with by the Lord Ordinary either.
  18. Counsel submitted that the Lord Ordinary, who stated that he was dismissing the 1990 incident, had given no satisfactory reasons for taking that course. In particular, the Lord Ordinary had not been justified in taking the view that Mrs. Wray had inflicted the eye injury on herself "albeit the mechanism remained somewhat obscure". On the evidence, the mechanism had not been obscure. There was strong and independent support for Mrs. Wray's account of the vital 1990 incident, and the Lord Ordinary's conclusion that her account of the incident was suspect was not justified. Her account was supported by other witnesses, and that indicated that her evidence about this incident was true. If her evidence in relation to the 1990 incident had been accepted, and the evidence of the pursuer rejected, that would have gone a long way towards establishing her credibility and reliability in relation to the other incidents founded on by the defenders.
  19. Counsel went on to submit that, while the Lord Ordinary had said that the issue of drink was one of the keys which he proposed to use to unlock the credibility problem, he had not gone on to explain what other keys he had used. So far as the evidence of the pursuer was concerned, the Lord Ordinary had found that there had been problems with his evidence and that on various occasions he had exaggerated his evidence. At times in the witness box he had been rambling. Further, he had, in the course of his evidence, made a number of allegations which had not been put to Mrs. Wray in cross-examination, and for which there was no record. One example related to the incident concerning the Chinese meal, the pursuer's allegation that she had thrown it at him not having been put to Mrs. Wray. However, the Lord Ordinary stated that he was impressed by the vehemence of the pursuer's general denials of the basic allegations made against him, "which were emphatic, probably exaggerated, but impressive for that reason". It was submitted that in reaching that conclusion the Lord Ordinary had erred in law. A failure by a witness to tell the whole truth in the witness box cannot do other than undermine his credibility. Counsel then turned to deal with the Chinese food incident which had caused the Lord Ordinary some concern. Mrs. Wray's account of the incident was supported by the evidence of Anne Hetherington, and the pursuer's version, namely that Mrs. Wray had thrown the food at him, had never been put to Mrs. Wray. The pursuer's version was inherently improbable and it appeared that the Lord Ordinary did not accept his evidence on this matter, but he did not go on to deal with the effect which that had on the pursuer's credibility.
  20. Quite apart from the January 1990 incident, counsel submitted that the Lord Ordinary had failed properly to address the medical records relating to other alleged incidents, and that he had been wrong to state that "the GP records, in my opinion, form little or no support...". Dr. Quin's records referred, in addition to the two eye injuries, to Mrs. Wray's complaints about her throat and her right breast. The letter from Dr. Quin to the consultant in December 1989 referred to a blow seven months earlier. Mrs. Wray had given evidence that the pursuer had grabbed her by the neck and had punched her on the chest. While it was accepted that there were no contemporaneous records to the effect that it was the pursuer who had assaulted her, the medical records did provide significant support for her evidence as to the pursuer's violent behaviour towards her. It was submitted that the Lord Ordinary had not satisfactorily addressed that evidence, and that he had failed to consider why she should have made such complaints throughout the marriage if they were untrue. On the whole matter it was contended that the Lord Ordinary's reasoning and assessment of the evidence had been deeply flawed, and that he had not taken proper advantage of seeing and hearing the witnesses. In the circumstances the court should recall the Lord Ordinary's interlocutors of 3 and 14 March 2000 and consider the evidence de novo. On that basis there were two quite irreconcilable versions before the court, Mrs. Wray having spoken to a series of allegations and the pursuer having denied them all and, in particular, having denied that he had ever used violence towards her. In considering the evidence de novo the court should have particular regard to the independent evidence, particularly the medical evidence. The starting point was the eye injury sustained in January 1990 and on the evidence the court should hold that the injury had been caused in the way Mrs. Wray had described. She had no motive for lying to Dr. Quin or Professor Dutton, or the other witnesses. The account given by the pursuer, in so far as he described how she had sustained the eye injury and the head injury, was inherently improbable. Professor Dutton had expressed the view that her injury was not consistent with a fall against furniture, nor were the two eye injuries, in 1987 and 1990, consistent with having been caused by two random accidents. The pursuer had clearly lied about the extent of Mrs. Wray's injuries and taking her to Gartnavel General Hospital. If Mrs. Wray was telling the truth about the 1990 incident, and the pursuer was lying about it, that would strongly support her credibility and reliability in relation to the other incidents. The pursuer's explanation about the Chinese meal incident was just incredible, and had not been put to Mrs. Wray. So far as the evidence about Mrs. Wray's alleged drink problem was concerned, she had said that she did not have a drink problem and on that matter she had been supported by the evidence of Dr. Quin, Anne Hetherington, Susan Fulton and Andrew Wray. Even if she had a drink problem, it did not follow that the 1990 incident had not taken place as she described, having regard to the evidence which supported her account. Having considered the evidence de novo the court should hold that veritas had been established. The defenders' third plea-in-law should be sustained and decree of absolvitor pronounced.
  21. Submissions on behalf of the pursuer

  22. Counsel for the pursuer began by stressing the very serious nature of the allegations which had been made by the defenders in the article. The court could not interfere unless it was satisfied that the Lord Ordinary was plainly wrong (Clarke v. Edinburgh and District Tramways Co. 1919 SC (HL) 35 per Lord Shaw at page 37). In Thomas v. Thomas, supra, Lord Thankerton had observed (at page 54) that consistorial cases formed a class in which it was generally most important to see and hear the witnesses, and particularly the spouses themselves and, further, that within that class, cases of alleged cruelty would afford an even stronger example of such an advantage. In the present case, which involved allegations of violence by one spouse against the other, the Lord Ordinary had had the advantage of seeing and hearing the witnesses, and it could not be said that he had not taken proper advantage of having done so. It would only be on the rarest occasions that the court would be justified in holding that the judge who heard the evidence had formed a wrong opinion (Yuill v. Yuill, supra). Even if the Lord Ordinary had not taken proper advantage of having seen and heard the witnesses, and the matter became at large for this court, counsel submitted that this was a case in which the court, not having seen or heard the witnesses, would not be in a position to come to any satisfactory conclusion on the basis of the printed evidence (Thomas v. Thomas, supra, per Lord Thankerton at page 54). That being so, the defenders would not have succeeded in discharging the onus on them (Rhesa Shipping Co. S.A. v. Edmunds [1985] 2 All ER 712 per Lord Brandon of Oakbrook at page 714) and the Lord Ordinary's interlocutor would stand.
  23. Counsel submitted that the Lord Ordinary in the present case had not formed a wrong opinion. It was accepted that the pursuer had not required to prove anything. In particular, it had not been necessary for the pursuer to come up with an alternative explanation for the incident in January 1990. The Lord Ordinary had considered whether the pursuer was a credible and reliable witness and had concluded that he was an honest man, and his reference to the vehemence of his denials showed that the Lord Ordinary had had regard to the way in which he had given evidence. While the Lord Ordinary clearly took the view that the pursuer had been a credible witness, what really mattered was the view which he took of the credibility and reliability of Mrs. Wray, and he had been correct to scrutinise her evidence carefully. The Lord Ordinary also clearly had in mind the fact that, when the allegations made against the pursuer were so serious, cogent evidence was needed to enable the defenders to discharge the onus which rested on them. Counsel referred to In re Dellow's Will Trusts [1964] 1 W.L.R. 451 per Ungoed-Thomas J. at pages 454-5; Gatley on Libel and Slander (Ninth edition) para. 33.10 and Norrie on Defamation, pages 132-3.
  24. Counsel submitted that the Lord Ordinary had not failed properly to carry out the duties which were incumbent on him. It was clear that, if the evidence of Mrs. Wray was not accepted as credible and reliable, then the defenders must fail. Accordingly, the Lord Ordinary was correct to begin his consideration of the evidence by examining the evidence which had been given by Mrs. Wray. The issue of drink had loomed large in this case and the Lord Ordinary gave careful consideration to her evidence on this matter. He dealt with the evidence which supported her as well as the evidence which supported the pursuer's allegation that she had a drink problem. In particular, the Lord Ordinary had tested the evidence of Mrs. Wray against the evidence of witnesses who were very close to her during the period in question. It was significant that there was no cross-examination of the evidence about drink given by Michelle Wray, James Wray and Mrs. Molloy. There was a strong body of evidence that Mrs. Wray did have a drink problem, and the Lord Ordinary had been justified in not accepting her denials that she had such a problem. The Lord Ordinary then went on to deal with the 1990 eye incident where an allegation of drunkenness had featured heavily. Counsel accepted that that had been an important incident, but submitted that proof of that incident alone would not be sufficient to prove the sting of the article. The defenders had to prove, by sufficient, cogent evidence, the truth of the substance of the article over the period in question. While the defenders had to prove a course of conduct on the part of the pursuer, it was accepted that not every single incident required to be proved. So far as the 1990 incident was concerned, it was the credibility of Mrs. Wray which was in question and the Lord Ordinary had been entitled to hold, having seen and heard her giving evidence, that her evidence in relation to that particular incident was suspect. In particular, he was entitled to place weight on the fact that she did not try to attract the attention of the police who were at the door. While it was accepted that the pursuer had been wrong about the time he had arrived home, and about taking her to Gartnavel after she had seen Dr. Quin, the Lord Ordinary was perfectly entitled to conclude that on these matters he had not been lying, but had simply been mistaken. So far as the medical evidence relating to that incident was concerned, Professor Dutton had said that it was a reasonable inference that the mechanisms which had caused the 1987 and 1990 eye injuries had been the same, but it was significant that Mrs. Wray had said that the 1990 injury had been caused by a punch, whereas the 1987 injury had been caused by a blow from the back of the hand. While counsel conceded that it would have been better if the Lord Ordinary had gone into Professor Dutton's evidence relating to the element of coincidence in more detail, he had dealt adequately with the medical evidence. On the evidence it had not been possible to say that Mrs. Wray's eye injury had not been caused by contact with a bedside cabinet, as any protruding part of the cabinet could, according to Professor Dutton, have caused the injury. Once the Lord Ordinary had found that Mrs. Wray's evidence about the 1990 incident was suspect, and had dismissed that incident, he had been entitled to hold that not much more credence could be given to the 1987 eye incident, particularly as Mrs. Wray had said at the time that the eye injury had been caused by an accidental blow from the handle of a brush.
  25. The Lord Ordinary had then gone on to consider a number of the other alleged incidents. His treatment of the alleged punching incident involving the curtains, and the incident in France, could not be faulted. The Nice incident was not referred to by the Lord Ordinary, but not much of it had been made in the evidence. While the Lord Ordinary had expressed concern about the Chinese food incident, such an incident, even if proved, would not have gone very far to prove the truth of the article.
  26. Counsel then turned to the general practitioner's medical records. While Mrs. Wray had said on 28 May 1987 that someone had grabbed her by the throat "a few weeks ago", she had seen Dr. Quin ten days earlier about her throat but had made no mention of any assault. With regard to her alleged breast injury, she had originally said that breast pain had begun after her last pregnancy, and the medical records indicated that the pain was due to fibrocystic disease and not to an assault. In the circumstances the Lord Ordinary had been justified in concluding that, in relation to the allegations other than the eye injuries, the medical records provided little or no support for the defenders' case. Further, the Lord Ordinary had been correct to place weight, in relation to the other allegations, on the absence of evidence from witnesses who had seen signs of injury on Mrs. Wray or had said that she had complained of being assaulted by the pursuer. This was particularly significant having regard, as the Lord Ordinary observed, to the fact that the article had referred to a long chain of violent conduct on the part of the pursuer. In particular, the Lord Ordinary was impressed by the evidence of Mrs. Molloy, who knew both the pursuer and Mrs. Wray very well and saw Mrs. Wray about every second day, but stated that she had not seen any signs of violence, nor had Mrs. Wray made any complaints of violence. She also said that if the pursuer had been violent towards Mrs. Wray, she would have known. Similar evidence had been given by Mrs. Grant, Michelle Wray and James Wray. While the defenders sought to rely on a number of what were described as de recenti statements made by Mrs. Wray, the evidence demonstrated a pattern, excluding the 1990 incident, of Mrs. Wray making allegations against the pursuer long after the incidents of which she eventually complained. On the whole matter counsel submitted that it had not been shown that the Lord Ordinary had failed to take proper advantage of having seen and heard the witnesses, or that he had been plainly wrong. If there were shortcomings in the approach of the Lord Ordinary, they were not so serious as to entitle the court to intervene.
  27. Counsel then turned to deal with the situation which would arise if the court decided that the Lord Ordinary's reasoning was so unsatisfactory that the matter was at large. This was not a case where the court should be disposed to reach a different conclusion from the Lord Ordinary on the basis of the printed evidence, particularly as the case depends on an assessment of the credibility and reliability of Mrs. Wray and the pursuer (Morrison v. Kelly, supra, Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370 and Whitehouse v. Jordan [1981] 1 WLR 246). If the court did decide to consider the evidence de novo, it should reach the same conclusion as the Lord Ordinary. In particular, the court should hold that the evidence of Mrs. Wray did not stand up to scrutiny. Alternatively, if the court came to be of the view that it was not in a position to come to any satisfactory conclusion, then the defenders would have failed to discharge the onus on them. The reclaiming motion should be refused.
  28. Conclusion

  29. We have given careful consideration to all the submissions which were made to us. It was common ground that it was for the defenders to establish, on a balance of probabilities, the truth of the allegations made in the article in the Mail on Sunday on 1 February 1998. The defenders would not have to prove the truth of each individual allegation but they had to show that the "sting" of the publication was true. In that connection there was no doubt that Mrs. Wray was a crucial witness, and it was clear that the defenders' case depended heavily on her evidence and that the defenders could not succeed unless she was found to be a credible and reliable witness.
  30. In Thomas v. Thomas 1947 S.C. (H.L.) 45 Viscount Simon made the following observations (at pages 47-48):
  31. "I desire to make some observations as to the circumstances in which an appellate Court may be justified in taking a different view on facts from that of a trial Judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate Court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate Court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth, or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given".

  32. Lord Thankerton observed as follows (at pages 54-55):
  33. "I do not find it necessary to review the many decisions of this House, for it seems to me that the principle embodied therein is a simple one, and may be stated thus:- (1) Where a question of fact has been tried by a Judge without a jury, and there is no question of misdirection of himself by the Judge, an appellate Court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial Judge's conclusion. (2) The appellate Court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate Court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate Court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves; and, further, within that class, cases of alleged cruelty will afford an even stronger example of such an advantage. Normally, the cruelty is alleged to have occurred within the family establishment, and the physique, temperament, standard of culture, habits of verbal expression and of action, and the interaction between the spouses in their daily life, cannot be adequately judged except by seeing and hearing them in the witness-box. The law has no footrule by which to measure the personalities of the spouses. In cases such as the present, it will be almost invariably found that a divided household promotes partisanship, and it is difficult to get unbiased evidence".

  34. Lord Thankerton also quoted a passage from the opinion of Lord Shaw in Clarke v. Edinburgh and District Tramways Co. 1919 SC (HL) 35 at page 37 which was in the following terms:
  35. "In my opinion, the duty of an appellate Court in those circumstances is for each Judge of it to put to himself, as I now do in this case, the question, Am I - who sit here without those advantages, sometimes broad and sometimes subtle, which are the privilege of the Judge who heard and tried the case - in a position, not having those privileges, to come to a clear conclusion that the Judge who had them was plainly wrong. If I cannot be satisfied in my own mind that the Judge with those privileges was plainly wrong, then it appears to me to be my duty to defer to his judgment".

  36. In the present case the Lord Ordinary had the distinct advantage of having seen and heard the witnesses, particularly Mrs. Wray and the pursuer, although one of the principal issues in the case related to whether or not he had taken proper advantage of having done so.
  37. The Lord Ordinary began by recording the evidence which had been led and the submissions of counsel. He then observed that it was recognised that there existed a stark contrast between the positions of the two real parties, the pursuer and Mrs. Wray, which were totally irreconcilable. He went on to state that the "sting" of the article categorised the pursuer as a violent bully, prone to exercising violence upon his wife on numerous occasions, and that the allegations which had been made against the pursuer were very serious. At the hearing of the reclaiming motion counsel for the defenders accepted that the allegations were, indeed, very serious and that, while the standard of proof was on a balance of probabilities, cogent evidence was required to prove the truth of the allegations. As Ungoed-Thomas J. remarked in the case of In re Dellow's Will Trusts, supra (at page 455):
  38. "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it".

  39. The Lord Ordinary, after these and other preliminary observations, stated that he proposed to commence by making a detailed study of the evidence of Mrs. Wray in order to try to reach a position on her credibility and reliability, and in our opinion that approach cannot be faulted. The Lord Ordinary stated that the issue of drink was one of the keys which he proposed to use to unlock what he described as "the credibility problem" in this case. After reviewing certain of the evidence, the Lord Ordinary held it proved that, if not an alcoholic, Mrs. Wray certainly had a drink propensity, and he saw no reason to doubt that, as a number of witnesses had said, she could become belligerent when taking drink. In our opinion, that was a conclusion which the Lord Ordinary was clearly entitled to reach on the evidence before him, and it was a finding which had certain relevance in relation to the 1990 eye incident.
  40. It was accepted by both parties that the 1990 eye incident was a very important one, and that the factual conclusion which was reached in relation to that incident would have a major effect on the court's view of the credibility and reliability of the two principal witnesses in relation to the other alleged incidents. The Lord Ordinary decided that Mrs. Wray's account of the 1990 incident was suspect and he dismissed it, and a great deal of the submissions before us related to whether or not he had been entitled to take that course. In that connection the Lord Ordinary, as we have said, had the advantage of seeing and hearing Mrs. Wray and the pursuer giving evidence, and they had been the only persons present when Mrs. Wray sustained her eye injury. Each gave a quite different account of the incident and there was no way in which the accounts could be reconciled. The pursuer had given evidence that his wife had been drinking and that he had found her clothes all over the floor, and the Lord Ordinary had held that, if not an alcoholic, she had a drink propensity. He clearly accepted that on the night in question she had taken drink. He also placed weight, as he was entitled to do, on the fact that, while she said that she had been assaulted by her husband, she had made no attempt to communicate with the police when they came to the front door, and she had no explanation for that failure. He also observed that Mrs. Wray had a motive to blame the pursuer for the injury having regard to the fact that divorce discussions had been taking place. In addition to these criticisms of the evidence of Mrs. Wray, the Lord Ordinary had heard the pursuer's evidence and he expressed the firm view that the pursuer was an honest man who felt deeply wronged, and that, while some of his assertions were exaggerated, the substance of what he said was true. He referred to the vehemence of his denials and it is clear that he had regard to the demeanour of the pursuer when he was giving evidence. However, counsel for the defenders submitted that, in dealing with the 1990 eye incident, the Lord Ordinary had not given proper consideration to the evidence of Professor Dutton, Dr. Quin and the other witnesses whose evidence was founded on as supporting Mrs. Wray's account of events and demonstrating that the pursuer had not been telling the truth. It is not necessary for a judge of first instance to deal in detail with every aspect of the evidence which was led in the course of a lengthy proof, although he must, of course, take the evidence into account. The Lord Ordinary referred in his Opinion to the witnesses who had given evidence, and summarised the evidence which they had given. We have not been persuaded that the Lord Ordinary has been shown not to have taken into account evidence which was material to the issues which he had to decide. Particular criticism was levelled at the Lord Ordinary in relation to the evidence given by Professor Dutton, and it was submitted that he had not addressed his evidence properly and had not given adequate reasons for preferring the evidence of the pursuer in relation to the 1990 incident. We agree that it would have been more satisfactory if the Lord Ordinary had dealt more fully with the evidence of Professor Dutton, and the other evidence founded on as supporting Mrs. Wray's credibility. However, he had summarised the evidence of Professor Dutton and referred to the other witnesses, and he also referred to Professor Dutton's report. He had narrated that Professor Dutton had expressed the opinion that it was less likely that Mrs. Wray's injury had been caused by a fall against a blunt object, and that it was likely that the mechanism and agency of the 1990 injury, and the 1987 injury, were the same and were consistent with a blow from a fist. In relation to the 1990 incident, the Lord Ordinary observed that the high point of the defenders' case was Professor Dutton's evidence to the effect that a mere fall or bang against furniture would not have caused the eye injury (an accurate summary if by "mere fall or bang" is meant a fall or bang on to a flat surface, as opposed, for example, to a fall on to the sharp corner of a structure), although it was also recognised that the witness conceded that so far as injuries caused by some kind of blunt trauma were concerned, medical examination could not distinguish between one cause and another. The Lord Ordinary took the view that the evidence of Professor Dutton was not, as he put it, sufficiently powerful if there were other factors pointing in the opposite direction. In that connection the Lord Ordinary accepted the pursuer as an honest witness and regarded Mrs. Wray's evidence as suspect. In these circumstances it is clear that the Lord Ordinary took Professor Dutton's evidence into account but did not consider that it was of such weight as to persuade him to believe Mrs. Wray and reject the evidence of the pursuer, whom he regarded as an honest witness. The other evidence in relation to the 1990 incident founded on by the defenders related to the credibility and reliability of the two main witnesses and, while the Lord Ordinary did not go into detail, we have not been persuaded, having regard to the terms of his Opinion, that he failed to take that evidence into consideration when determining whether he was prepared to accept Mrs. Wray as a truthful and reliable witness. Further, he was entitled, in our opinion, to take the view that the pursuer had simply been mistaken as to the time when he had arrived home that night and about taking his wife to Gartnavel Hospital. Once the Lord Ordinary, having seen and heard the witnesses, expressed the view that the pursuer was an honest man and that the substance of his assertions in the witness box was true, we are unable to say that, in relation to the 1990 incident, the Lord Ordinary was plainly wrong to dismiss it, in the sense of not accepting Mrs. Wray's account, although, as we have said, it would have been more satisfactory if he had dealt with the evidence more fully. Once the Lord Ordinary had concluded that he could not accept Mrs. Wray's account of having been assaulted at the time of the 1990 eye incident, he was, in our opinion, clearly entitled to take the view that not much more credence could be given to the 1987 incident. The pursuer denied that he had assaulted Mrs. Wray on that occasion and Mrs. Wray had stated at the time that her eye injury had been the result of an accident, her eye having been struck by a brush handle. There was no independent evidence as to what had happened on that occasion, and it was only when divorce discussions were under way that she alleged for the first time that the pursuer had been responsible for her injury.
  41. The Lord Ordinary then turned to the other alleged incidents founded on by the defenders. In our opinion, he was entitled, for the reasons which he has given, to reject her account of the initial punching incident, and to attach little significance to the incident during the holiday in France. He clearly had more difficulty so far as the Chinese food incident was concerned but, even if Mrs. Wray's account of that incident had been correct, that would not have gone very far towards proving that the "sting" of the article was true. The Lord Ordinary was strongly criticised by counsel for the defenders for taking the view that Dr. Quin's medical records gave little or no support to the defenders' case, but in our view that criticism was not justified. As the Lord Ordinary observed, the allegations relating to the injuries referred to in these records stemmed from Mrs. Wray, and they were substantially uncorroborated. While the Lord Ordinary's treatment of the medical records was cursory, we are satisfied, on the basis of the evidence which was led at the proof, that he was entitled to reach the conclusion that they provided little or no support for the defenders' case in relation to the other incidents founded on by the defenders, particularly having regard to the instances where Mrs. Wray did not allege that injuries had been caused by the pursuer until the divorce discussions were under way. With regard to the incidents on which the defenders sought to found, other than the 1990 incident, it has to be noted that there was very little in the way of corroboration. Further, the Lord Ordinary also observed that he had heard evidence from a number of people who had known the couple well over a period of ten years, but none of whom could speak to any complaints or signs of violence. In particular, he was impressed by the evidence of Mrs. Molloy whose evidence was adverse to the defenders' case. He was unable to accept that, if there had been a long chain of violent conduct, such conduct would not have led to Mrs. Wray complaining to her close friends or at least signs of injury or discomfort calling for some explanation. In our opinion, these were factors on which the Lord Ordinary was entitled to place considerable weight.
  42. We have considered all the evidence led before the Lord Ordinary and the submissions made to us, and we can well understand why the Lord Ordinary said that he had found the case to be extremely difficult. As we have already observed, the allegations which were made against the pursuer in the newspaper article were very serious indeed, and it was common ground that cogent evidence was needed to enable the defenders to establish the truth of those allegations. With the exception of the 1990 incident, corroboration of Mrs. Wray's evidence was thin on the ground, and in relation to that incident we consider that the Lord Ordinary was entitled, notwithstanding the medical evidence, to reject the account given by Mrs. Wray, particularly once he had in essence found that the pursuer was an honest witness. We are unable to say that there was material evidence which the Lord Ordinary failed to take into account. He had the advantage of seeing and hearing the witnesses, particularly the two principal witnesses, and we cannot say that such shortcomings as there are in the Lord Ordinary's reasoning or expression are sufficient to demonstrate that he did not take proper advantage of seeing and hearing their evidence or that the views which he expressed about their evidence was wrong. In particular, in the circumstances of this case it seems to us that he was entitled to accept the evidence of the pursuer and, once he had done so, that it cannot be said that he was not entitled, in effect, to reject the substance of the evidence given by Mrs. Wray. Further, we are quite unable to say that the Lord Ordinary was plainly wrong to conclude that the defenders had failed to satisfy him, with sufficient evidence that he could accept, that the very grave allegations in the article were true. That being so, the reclaiming motion is refused.


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