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Cite as: [2003] ScotSC 36

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McAvennie v. Scottish Daily Record Sunday Mail [2003] ScotSC 36 (13 May 2003)



in the cause







Act: Mackenzie, Solicitor, Harper MacLeod. Solicitors.

Alt: Cullen QC, instructed by Levy & Macrae, Solicitors.


GLASGOW, 13 May 2003.

The Sheriff Principal having resumed consideration of the cause, refuses the appeal and adheres to the sheriff's interlocutor dated 15 August 2002; certifies the cause as suitable for the employment of junior counsel for the purposes of the appeal; finds the pursuer liable to the defenders in the expenses occasioned by the appeal and remits the account thereof when lodged to the auditor of court to tax and to report thereon; quoad ultra reserves all questions of expenses and remits the cause to the sheriff to proceed as accords.





[1] The defenders and respondents in this appeal are publishers of the "Sunday Mail" newspaper. The pursuer and appellant is a former professional football player of some public prominence. He seeks damages of 50,000 from the defenders, alleging that he was defamed by them in an article which appeared in their newspaper on 13 June 1999.

[2] The front page of that newspaper bore a wedding photograph of the pursuer and his wife beneath which was published in bold print the words "Macca on wife beating charge" followed by the statement:

"International soccer star Frank McAvennie has been charged with assaulting his estranged wife Laura. The ex-Celtic and West Ham striker was arrested after an incident at the home of his parents. Full story page 11".

Page 11 carried three photographs of scantily clad young women, one being the pursuer's estranged wife, the two others being young ladies with whom he is said to have had previous relationships. Beneath these photographs, again in bold, appeared the headline "Macca on wife assault charge". The text, part of which is quoted by the sheriff in his judgment contained the following statements:

"Former football star Frank McAvennie has been charged with assaulting his wife.

McAvennie, 39 was quizzed by police after his estranged wife Laura claimed he attacked her.

The incident is alleged to have happened at McAvennie's parents' home while the former Celtic and West Ham star was having an access visit with his son Jake".

After a brief narration regarding the separation of the pursuer from his wife and the arrangements for contact with Jake the article proceeded:

"However, an argument is believed to have developed between the couple and Laura phoned the police after she was allegedly assaulted. When two officers arrived a short time later McAvennie had disappeared. The police eventually managed to contact him several days later through relatives to say they wanted to interview him about this wife's allegations. When McAvennie realised the police were after him he agreed to hand himself into nearby Saracen Police Office close to his parents' home, where he was charged with assault and released".

The article went on to narrate that a police spokesman had confirmed that a "39 year old man has been charged with an alleged assault and a report will be submitted to the Procurator Fiscal".

[3] Whilst the defenders contend that the substance of what was contained in this article is substantially true, it is a matter of acceptance on their part that in fact the pursuer was not charged with assaulting his estranged wife on the occasion in question. That concession has a bearing on the future progress of the case, since the defenders as part of their contention that the article was "substantially true" aver that a report was submitted to the Procurator Fiscal which contained a charge drafted to reflect the incident following a police investigation. It does not, however, have a direct bearing on the issue raised in the appeal. Although the pursuer's pleadings are prolix almost to the point of obfuscation of the precise nature of his complaint, that was clarified by the solicitor who appeared on his behalf at the appeal as being (1) that it was defamatory to say he was arrested and charged when he was not, and (2) that the article was capable of bearing the meaning that in fact he did assault his wife. It is the second of these contentions which gives rise to the present issue. The pursuer contends that what was published was not merely an article containing a narration of an allegation; it was an article capable of bearing the construction that the pursuer was in fact guilty of the acts alleged.

[4] This latter contention was rejected by the sheriff. He expressed the view that it was difficult to see how, taken as a whole, what was said in the article complained of stated other than that the pursuer had been arrested and charged with an incident involving the alleged assault of his estranged wife. He said that he did not doubt that some readers might jump to the conclusion that the events did take place but that was not the test. He referred to the speech of Lord Reid in Lewis v Daily Telegraph Ltd, 1964 AC 234 (at p 260) where his Lordship indicates that the test is "what the ordinary man, not avid for scandal, would read into the words complained of". That, as Lord Reid observed must be a matter of impression. The sheriff's impression was the words did not bear the meaning contended for by the pursuer. In consequence in allowing a proof he refused to admit to probation those parts of the pursuer's pleadings that contained the allegation that the article complained of was capable of meaning that the pursuer in fact assaulted his wife.

[5] Mr Mackenzie, Solicitor, on behalf of the pursuer challenged this conclusion. He contended that the sheriff had erred in his approach and ought to have allowed the whole matter to have proceeded to a proof before answer. At p 10 of the his note the sheriff said:

"The principal issue which I have to resolve is whether the words complained of carry the defamatory meaning for which the pursuer contends".

Mr Mackenzie contended that the true issue for determination at the stage of debate was whether the words complained of were capable of carrying the defamatory meaning. He referred to Russell v Stubbs Ltd, 1913 SC (HL) 14 at p 20 and in particular to a passage in the speech of Lord Kinnear at p 20 where he says:

"The law is perfectly well settled. Before a question of libel or slander is submitted to a jury the court must be satisfied that the words complained of are capable of the defamatory meaning ascribed to them".

What the sheriff had done was to reach a factual conclusion that the words did not bear a defamatory meaning, a step which he was not entitled to take until he had heard the evidence. The reason was that it was necessary to examine the publication complained of in the light of the evidence to determine whether one could "import to language a meaning which it would not otherwise bear" (Russell v Stubbs supra at p 21). Whilst the pursuer contended that the article complained of amounted to an assertion that the pursuer had in fact assaulted his wife, at the very least it was capable of being read and understood as containing an assertion to that effect. He sought to contrast the situation with that in Lewis v The Daily Telegraph, 1964 AC 234. That was a case in which two national newspapers published stories relating to police enquiries into the activities of a firm of which the plaintiff was Chairman. Similar issues arose as in the present case, the allegation being that the words used where capable of meaning that the plaintiff was guilty of fraud. That was rejected by the House of Lords. Mr Mackenzie sought to demonstrate that the present case was "qualitatively different" from Lewis. In that case their Lordships were of the view that there was only a "bare statement" that a police enquiry was being made. In the present case the defenders had not only published the fact that there was a police investigation and a charge but details which backed it up.

[6] Mr Mackenzie also submitted that the defenders' position could not be saved because of the fact that both headlines referred to a "charge". Charleston and Another v News Group Newspapers Ltd, 1995 2 AC 65 was authority for the view that a prominent headline could not found a claim in libel in isolation from the accompanying text. The converse applied. In this case it was not the headlines which were complained of but the text itself and the two had to be looked at together. In essence Mr Mackenzie argued that the pursuer was entitled to a proof on the matter of whether the words used were capable of bearing the meaning that he had in fact carried out an assault. The question for proof was, what is the one true meaning that could be taken from the article by a reasonable person?

[7] In response Mr Cullen QC for the defenders indicated that there was little between the parties as to the law to be applied at this stage. He accepted that it was a question of law for the court to decide whether the article was capable of bearing the meanings which the pursuer contended. He further accepted that the court had to consider the totality of the article including the headlines and interpret the text in its entirety. He contended that the sheriff had not erred in applying these principles. He had not adopted the wrong approach. He had correctly understood the role of the court at the stage of debate and had applied the test as set out by Lord Kinnear in Russell v Stubbs. Even if there was an error in approach by the sheriff that merely resulted in the matter being at large for the appellate court. Approaching the matter afresh the article complained of was not capable of bearing the "inference of guilt" contended for by the pursuer.

[8] On the question of approach Mr Cullen founded strongly on the case of Leon v Edinburgh Evening News Ltd. In that case the pursuer had been summoned to appear in a police court in relation to a charge of breach of a licensing law. He appeared and was acquitted. A newspaper published an article headed "The Edinburgh Licensing Prosecution, Prisoners Acquitted". The basis of the pursuer's defamation action was that as he had not been apprehended but had appeared in answer to a citation and had then been acquitted he had never been a "prisoner". Mr Cullen pointed in particular to the concluding paragraph in the Opinion of Lord Kinnear which is in the following terms:

"...the pursuer says that he was inaccurately described as a prisoner and that so to describe him was libellous. I think the description was not technically exact. But a newspaper in a paragraph of this kind does not necessarily use technical language; and in ordinary language an accused person at the bar of a court may not improperly be described as a prisoner. To an ordinary reader the paragraph with its heading would not in my opinion convey any more injurious meaning than that the pursuer had been accused and had been acquitted. The pursuer maintains that it is for a jury to say whether it has not a further and defamatory meaning. But whether the words of which he complains are capable of a defamatory meaning is a question of law; and the court must be satisfied that they are before they are sent to a jury. If they are, it is for the jury, having regard to all the circumstances of the publication, to say whether they in fact conveyed that meaning. I am of the opinion that the action is irrelevant, and should be dismissed".

[9] This paragraph illustrated quite aptly the approach which the court was required to take at the stage of relevancy, that is to say it was required to determine as a matter of law whether the words were capable of bearing a defamatory meaning. The sheriff in the present case had not shrunk from that responsibility. The approach was consistent in all the authorities. Thus in Russell v Stubbs, Lord Kinnear (at p 20) had quoted from the earlier case of Capital and Counties Bank v Henty, where Lord Selborne said:

"If the judge taking into account the manner and the occasion of the publication and all other facts which are properly in evidence is not satisfied that the words are capable of the meaning ascribed to them then it is not his duty to leave the question raised by the innuendo to the jury".

This observation served to emphasise the different stages at which the question tended to arise in England and in Scotland. In England it was a matter which the court had to consider at the stage of giving directions to the jury whereas in Scotland it arose at the stage of debate. Mr Cullen further founded on a number of passages in Lewis v The Daily Telegraph on the question of the approach to be taken in relation to what words are capable of meaning. He founded, as had the sheriff on the passage at p 260 in the speech of Lord Reid in that case and to passages in the speeches of Lord Morris (p 266); Lord Hodson (p 274) and Lord Devlin at p 286. In the last mentioned passage his Lordship said:

"If the ordinary sensible man was capable of thinking that wherever there was a police enquiry there was guilt, it would be almost impossible to give accurate information about anything: but in my opinion he is not".

[10] Mr Cullen went on to argue that when properly considered as a whole the article complained of in the present case did not in fact contain more than a bald statement that there was a police enquiry. Mr Mackenzie, he said, had adopted a highly selective approach to the article. That was not the approach to be taken by the court when considering the attitude of the "reasonable reader". The conclusion to be derived from the article was that Mrs McAvennie had complained to the police; that an investigation had taken place, and that the defender had surrendered himself and been charged. That was no more than an indication that he was under suspicion because of the allegation.

[11] In my judgment the appeal raises two questions, both of which are essentially in short compass. The first is whether the sheriff adopted the wrong general approach at this stage of the proceedings, was as suggested by Mr Mackenzie. I am quite satisfied that the sheriff has not erred in this respect. There is no doubt - as the passage in the case of Leon founded on by Mr Cullen amply demonstrates - that a Scottish court is required to consider at the stage of relevancy whether the words complained of are reasonably capable of bearing the meaning which the pursuer seeks to put upon them. Whilst the sentence at p 10 of the sheriff's note which Mr Mackenzie criticised is strictly speaking inaccurate in that it appears to set out the issue which a court would determine following proof, there is little doubt that in the passages which follow it the sheriff has approached the matter properly by considering whether the words are capable of bearing the defamatory meaning.

[12] The second issue is whether the sheriff reached the correct result in the application of the test which arises in that general approach. Having regard to the highest authority to which the sheriff refers it is impossible to disagree with the view that in deciding whether the words are capable of bearing the defamatory meaning complained of the court must decide what "the ordinary man not avid for scandal would read into them". The sheriff has applied that test, noting that it is matter of impression. His impression was that the words do not bear the meaning contended for by the pursuer. Having regard to the whole nature of what was published I could not disagree with that view. I accept that one must look at the full content of the article as well as the headlines but the headlines themselves are important in setting the tone of what is thereafter contained. Both headlines refer to a "charge". While it is true that the body of the text goes some distance in setting the scene for the circumstances of the allegation the words used in my view are quite carefully selected to avoid stepping over the borderline between a report of an allegation and a suggestion of guilt. Thus whilst there is a suggestion of an argument between the pursuer and his wife prior to the alleged assault that is qualified by the words "is believed to have developed" and there is nothing in the report of what occurred up to the point that a phone call to the police was made that can reasonably be said to imply guilt. What follows is perhaps slightly more tendentious, in particular by the use of the word "disappeared" to describe the pursuer's departure from the scene. The sentence in which that appears, however, has to be read with the two concluding sentences which do no more than show that, having become aware that the police were looking for him the pursuer handed himself in and was charged. I therefore consider that the sheriff has applied the correct test, but in any event, it is my own impression that the article complained of is not capable of bearing the implication that the pursuer was necessarily guilty of assaulting his wife. I accordingly agree with the sheriff's conclusion and the appeal falls to be refused.

[13] It was accepted that in relation to the appeal proceedings, expenses would follow success. Mr Cullen sought certification of the cause as suitable for the employment of senior counsel. Mr Mackenzie contended that that the matter could have been dealt with adequately by a solicitor. As I have indicated in my judgment the case raises two relatively short issues and I am not without sympathy to Mr Mackenzie's position. On the other hand it is a matter on some importance to both parties and the amount of damages claimed is not insignificant. I have certified the cause as suitable for the employment of junior counsel for the purposes of the appeal.


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