Scottish Court of Session Decisions

This is a defamation action in which both parties have tabled preliminary pleas directed to the relevancy of the Summons and Defences respectively. The defenders' plea is a general plea seeking dismissal of the action but Mr Wallace, for the pursuer, was content that under that "umbrella" I could give effect to counsel for the defenders' motion to exclude from probation certain specified averments.

The action arises out of an article in the Sunday Mail dated 24 January 1999 which was prefaced by a front page headline, "Champagne, Hookers and The Celtic Stars". The whole article is incorporated in the pursuer's pleadings brevitatis causa but it will perhaps suffice to say that that headline gives the general flavour of what follows except, it has to be said, that the pursuer's alleged choice of beverage turns out to have been beer rather than champagne. The pursuer avers that the article contained a number of defamatory imputations but only three of these were specifically attacked by Mr Anderson, for the defenders, as being irrelevant. I should say, in passing, that, despite a brief submission by Mr Anderson to the contrary, I am quite satisfied that the remainder of the imputations alleged are at least capable of being construed by a jury as defamatory.

Two of the three imputations which were attacked by Mr Anderson are averred in the following terms:-

I can deal with these quite shortly. The article in question does state in terms that the pursuer, amongst others, was "very drunk" and that around 5am the police were called to Marbella's "seedy No 1 Club" because the pursuer and other "football stars" refused to leave. In my opinion these express allegations more than warrant the two alleged imputations in question. The third, however, presents rather more difficulty and, in its amended form, is averred at P. 10C of the Closed Record in these terms:-

As it seems to me, and in agreement with Mr Anderson for the defenders, the real question for the Court is whether this allegation was, as averred, "implied" by the article in question and that, I conceive, is a rather different question from whether words actually used do or do not convey a particular "innuendo". Although this distinction may not always have been clearly noticed in the authorities, the difference is, in my view, fairly obvious and is well summed up by Cooper on Defamation, 2^nd Ed. at p.103. Accordingly, I did not find to be of assistance a number of authorities cited by both parties on the subject of innuendo. The question to my mind is quite simply whether the alleged implication is or is not one which is capable of being fairly extracted from the article. If it can, then there is no dispute but that it is defamatory. But, having read and re-read both the front page headlines and the accompanying article, I have reached the view that this particular implication cannot, in fact, be spelt out. The sexual connotations in the article were no doubt intended to attract the attention of a certain type of reader but I consider that such a reader would reach the conclusion that, while the pursuer had spent time in what is described as a "nightclub brothel", there was no allegation that he actually succumbed to the sexual temptations on offer. Instead, all the emphasis, in my view, is on drink, drunkenness and, eventually, on the police having to be summoned. I accordingly refuse to remit to probation that particular averment. For the rest, I am satisfied that the pursuer's averments are fit to go to a jury.

As matters turned out Mr Wallace's attack on the relevancy and specification of certain of the defenders' averments was met by a Minute of Amendment lodged at the bar by counsel for the defenders. I shall accordingly, of consent, repel the first and second pleas-in-law for the pursuer and, having excluded from probation the pursuer's averment at p.10C of the Closed Record, I shall also repel the first plea-in-law for the defenders and allow issues.