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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Thomson & Anor v Ross & Ors [2000] ScotCS 202 (18 July 2000)
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Cite as: [2000] ScotCS 202
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OUTER HOUSE, COURT OF SESSION |
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O/11/6/98 |
OPINION OF LORD EASSIE in the cause GORDON COUTTS THOMSON and MRS MARIA TERESA THOMSON Pursuers; against SHERIFF KENNETH ROSS and OTHERS Defenders:
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Pursuers: First-named pursuer in person
Second named pursuer: Mayer, Fiona Rasmusen, Solicitor
First Defender: R W Dunlop, McGrigor Donald
Second Defender: Smith, Q.C., Young; Morison Bishop
Fourth-Ninth Defenders: Lord Mackay of Drumadoon, Q.C, subsequently Tyre, Q.C., McGregor; Brodies, W.S.
18 July 2000
Introductory
[1] The pursuers in this action of defamation which was debated on the procedure roll are spouses who formerly carried on practice as solicitors in partnership with each other and a third solicitor who is not a party to this action. The partnership came to an end after the Scottish Solicitors Discipline Tribunal on 7 April 1995 found all the partners guilty of professional misconduct and ordered that the names of both of the pursuers be struck off the roll of solicitors in Scotland with effect from the date of the issue of its written findings, which occurred on 5 June 1995.
[2] Nine defending parties have been convened by the pursuers. The first defender was the President of the Law Society of Scotland at the time material to the subject matter of the action (1995). The second defenders are the Law Society of Scotland itself. The third defending party convened by the pursuers was the Scottish Solicitors Discipline Tribunal as such but following the lodging by the pursuers of a Minute of Abandonment respecting the third defenders decree of absolvitor was pronounced in their favour on 21 April 1998. The fourth to ninth defenders are respectively the six individuals who constituted the membership of the Discipline Tribunal which found the pursuers and their partner guilty of professional misconduct on 7 April 1995. The eighth and ninth defenders are the lay members of that Tribunal. For convenience, where the context makes it appropriate I shall refer to the first defender as "the President"; the second defenders as "the Society"; and the fourth to ninth defenders inclusive as "the Members". I shall also refer to the Members collectively as "the Tribunal" where the context also makes that reference appropriate.
[3] The pursuers, along with their partner, appeared before a Discipline Tribunal in October 1994 on a number of charges inferring professional misconduct. After sundry procedure which included the determination of certain preliminary pleas, a hearing before the Tribunal was fixed for 10 January 1995. On that and subsequent dates evidence was led by the procurator (Mr Neilson) prosecuting the Society's complaint, the proceedings being in due course adjourned. It appears that during the interval of that adjournment discussions between the Society's procurator and solicitors acting for the pursuers and their other partner resulted in the procurator's accepting pleas of guilt to some of the several charges, either in amended or unamended form. It is averred by the pursuers, under reference to certain subsequent correspondence, that in accepting those pleas the procurator departed from the allegations of personal fraud or dishonesty by the pursuers contained in certain of the charges. On the resumption of the hearing the Tribunal heard, on 5 and 6 April 1995, submissions from the procurator and the representatives of the pursuers and their partner respecting the pleas of guilt. Thereafter on 7 April 1995 the chairman of the Tribunal pronounced orally the Tribunal's decision. As part of that decision, the Tribunal directed that immediate publicity be given to the decision (transcript, page 12E). The Tribunal also on that date pronounced an interlocutor ordering that the pursuers be struck from the roll of solicitors from the date of its written findings.
[4] Consistently with its direction that immediate publicity be given, the Tribunal on 7 April 1995 issued to the Press a document containing the text of that which had been said by the chairman earlier that day when giving the Tribunal's decision, save that it omitted inconsequential introductory remarks acknowledging the assistance given by the compearing law agents and added the names of the parties, to give meaning to their procedural designations. That document - "the Press release" - is No.6/1 of process.
[5] Following on the giving by the Tribunal of its decision and the issue by it of the Press release, the Society arranged a Press conference which was held on the afternoon of 7 April 1995. It was given principally by the President and in the course of answering questions from those attending he made certain remarks which the pursuers now maintain were defamatory of them.
[6] On 5 June 1995 the Tribunal issued its full written findings (7/10 of process) - the "Findings" - whereupon the pursuers' appealed to the Court of Session respecting the penalty imposed upon them by the Tribunal. That appeal resulted in due course in the quashing of the Tribunal's decision and a remit to a differently constituted tribunal which on 13 October 1999 of new ordered that the pursuers be struck from the roll. The Opinion of the Court quashing the Tribunal's decision was delivered on
12 March 1999 and, endeavouring to summarise its reasoning in the briefest of terms, the reason wherefor the decision was quashed was that as respects one charge, affecting the second pursuer only, (the Marc Williams charge) the Tribunal included in its findings of facts material relevant to that charge upon which the procurator had accepted a plea of not guilty. For completeness it may be recorded that the pursuers have further appealed against the decision of the differently constituted tribunal, which of new ordered their removal from the roll of solicitors on 13 October 1999.
[7] In this action however the pursuers seek payment by the defenders jointly and severally of damages respecting certain passages in the Press release and the Findings and certain remarks made by the President at the Press conference.
The allegedly defamatory statements:-
(a) The Members
[8] Given that the delivery by the Tribunal of its decision on the morning of 7 April 1995 and the issue by it of the Press release preceded the holding of the Press conference I consider it convenient first to endeavour to identify the allegedly defamatory statements which the pursuers attribute to the Members.
[9] It is averred by the pursuers that the Press release contained two matters which were factually incorrect. The first of these incorrect statements in the Press release, quoted at page 32C in the Closed Record, is in these terms:
"During 1992 and 1993 the respondents made claims under the Legal Advice and Assistance Scheme to the Scottish Legal Aid Board in respect of fees amounting in total to approximately £30,000 covering some 1200 cases. When called upon by the Board to justify the fees claimed they were unable to produce any files or other records to justify the fees claimed. The Tribunal was informed that the £30,000 had been repaid to the Legal Aid Board".
The inaccuracy averred by the pursuers is that the sum of £30,000 had not been repaid by them to the Scottish Legal Aid Board, the claimed fees of £30,000 not having been paid by the Board to the firm of which the pursuers were partners in the first place. It is admitted by the Members in their defences that the Press release - and the oral decision which it replicated - are inaccurate insofar as stating that £30,000 had been repaid to the Scottish Legal Aid Board respecting claims for fees for legal advice and assistance which the firm had been unable to substantiate. The Members go on to aver that a sum of £30,000 had been repaid to the Scottish Legal Aid Board in relation to a particular case and that the error was thus made "in good faith, after many days of evidence and following a complex agreement by the pursuers to certain of the facts complained of against them in the complaints by the Law Society of Scotland and an acknowledgement by the pursuers that the admitted facts amounted to professional misconduct on their part".
[10] The second passage to whose accuracy exception is taken is quoted at page 33B of the Closed Record as follows:-
"The First and Second Respondent [i.e. the First and Second pursuers] permitted fraudulent claims to be made to the Legal Aid Board and their failure to be able to provide details of work done in relation to claims for fees amounting to approximately £30,000 was regarded by the Tribunal as entirely unacceptable behaviour for a solicitor".
The inaccuracy complained of is averred to be as follows:-
"The statement 'failure to be able to provide details of work done' is incorrect. The true facts as given to and accepted by the Discipline Tribunal are that the Scottish Legal Aid Board was provided with name, address and date of birth, of the client in question together with date the advice was given and the nature of that advice. In so doing the pursuers were following the then common practice of the Profession as referred to at page 379 in The Journal of the Law Society, October 1993. A copy of said article is produced, referred to for its whole terms and held as incorporated herein brevitatis causa. The statement 'permitted fraudulent claims' is incorrect. The Tribunal was advised all fraud and dishonesty on the part of the pursuers had been departed from as foresaid. Furthermore mention of the £30,000, which could not be obtained due to failure to be able to provide details of work done, within the same sentence as 'permitted fraud' implies a fraudulent scheme on behalf of the pursuers to obtain £30,000 pounds from the Legal Aid Fund".
Apart from the Press release the pursuers put in issue two passages in the extensive written findings issued by the Tribunal on 5 June 1995. The passages, quoted at pages 38-39 of the Closed Record are in these respective terms:-
(i) "This background and the number of fees involved demonstrated that the failure to produce files or other records was therefore not a mere omission on the part of the respondents but a significant element in a calculated scheme to maximise the payment to them from the Legal Aid Fund and in such circumstances the Tribunal is entitled to take a very serious view of the respondents in this matter".
(ii) "The first and second respondents permitted fraudulent claims to be made to the Legal Aid Board and their failure to be able to provide details of work done in relation to claims for fees amounting to approximately £30,000 was regarded by the Tribunal as being entirely unacceptable behaviour for a Solicitor".
The pursuers go on to aver that:
"Said comments were calculated to imply a fraudulent scheme on the part of the pursuers. As previously condescended upon details and records of work done were provided. Said comments are not consistent with any allegations of fraud and dishonesty on their part having been departed from".
(b) The President
[11] As already indicated, the allegedly defamatory statements averred to have been made by the President were uttered at the Press conference on the afternoon of 7April 1995 subsequent to the issue by the Tribunal of the Press release which contained the text of the decision issued orally by the chairman of the Tribunal that morning. The averments narrating the statements attributed to the President are to be found at page 18B-C of the Closed Record in these terms:-
"There is no reason why this matter should not be reported to the police" ... and ... "in the past when there has been evidence that solicitors have been acting fraudulently the matter has sometimes been brought to the police's attention".
Although not strictly pertinent to the relevancy of the pursuers' case, it may be appropriate to note the President's response in the averments on his behalf at page 26 of the Closed Record where, having narrated that the Press conference was conducted on the basis of the Press release issued by the Tribunal, it is averred that -
"The [President] was pressed by the assembled media on the question of whether or not the matter would be reported to the Police. In reply the [President] stated: 'It is not a matter we have taken a decision on, but in the past, where there has been evidence that Solicitors have been acting fraudulently, the matter has sometimes been brought to the Police's attention'.
[12] Apart from those specific attributions to the President at the Press conference there is to be found at page 18D of the Closed Record the following averments:-
"Included within their pleas was an acceptance that both pursuers were vicariously 'responsible' for the actings of their staff member who altered the dates of signature and commencement of 5 Legal Advice and Assistance forms. However when making their announcements to the Press the defenders plainly said that the pursuers 'permitted' said actings thereby giving the impression to the legal profession and the public that they had wilfully and knowingly defrauded the Scottish Legal Aid Board".
The general reference to Press announcements by the defenders, without particular specification of the defender in question or the occasion does not demonstrate the care and attention to detail which would ideally be expected of a pleader in a case such as this. However, in limited clarification of the pursuers' broad averment it is admitted on behalf of the President that -
"In giving a conference, the [President] fairly and accurately reported the findings of the Tribunal as summarised in their Press release, and in doing so mentioned that the pursuers had been found guilty of permitting fraudulent claims to be made to the Legal Aid Board. That assertion was a fair and accurate report of one of the findings of the Tribunal. The pursuers, in their Pleas to the Tribunal, had accepted that they were professionally responsible for the running of an office in which there had been fraudulent conduct carried out by members of staff"
(c) The Society
[13] Although it is possible to decern within the pursuers' somewhat diffuse pleadings statements by the Tribunal and the President of which complaint is made there is no independent corporate utterance by the Society which is put in issue. However, in the course of the debate, during submissions by junior counsel for the Society, counsel for the second pursuer and Mr Thomson, the first pursuer, as a party litigant, expressly intimated their acceptance that any liability on the part of the Society was based solely on a vicarious liability for the utterances of the President at the Press conference.
The Minute of Amendment
[14] The diet of procedure roll debate commenced on 30 November 1999 but was not completed within the days then allotted to it. In the interval between its adjournment in December 1999 and the resumption of the hearing in the summer term the pursuers, on 17 March 2000, sought leave to allow a Minute of Amendment (No.37 of process) to be received. This was opposed by counsel for the President and the Members on the grounds that it came too late and, principally, that the material which it sought to introduce was also irrelevant. At that stage I allowed the Minute of Amendment to be received and to be answered. On the resumption of the procedure roll discussion counsel for the second pursuer and the first pursuer in person moved that the pleadings be amended in terms of the Minute of Amendment and Answers for the first defender and the fourth to ninth defenders (Nos. 38 and 39 of process). That motion was opposed, again principally on the ground that the Minute of Amendment was irrelevant and, in so far as seeking to answer some of the criticisms already advanced at the November discussion, was an insufficient answer.
[15] While I saw force in the contention advanced by counsel for the defenders that the content of the Minute of Amendment was arguably quite irrelevant, it appeared to me that, since the issues before me concerned the relevancy of the pursuers' case upon which the debate was only partly heard, the more expedient course was to allow the pleadings to be amended in terms of the Minute of Amendment and Answers in order that the relevancy of the proposed additions to the pursuers' pleadings might be given reserved consideration in the context of the whole arguments presented for my adjudication.
The principal heads of submissions
[16] To an extent the submissions advanced by counsel for the respective defenders overlapped or were common to the respective arguments. All of the defenders challenged the competency of the action in respect that it contained a single conclusion for damages seeking to impose joint and several liability on all of the defenders in respect of different alleged defamatory statements. In respect of certain of the averments relating to damages the defenders made common cause, although some additional specific points were also made.
[17] Leaving aside the points relating to competency and damages and looking to what might be described as the substantive issues on liability the points taken by both counsel for the President and, following the concession by the pursuers that the Society was convened only on the basis of vicarious liability, counsel for the Society may be listed as follows:-
(i) The statements by the President of which complaint was made were not defamatory of the pursuers and were not relevantly innuendoed as defamatory of them.
(ii) The occasion of the utterance of the statements gave the President qualified privilege. (This was accepted and conceded by Mr Thomson and counsel for the second pursuer). There were no relevant averments of malice displacing that privilege.
(iii) Apart from the occasion being one to which qualified privilege attached at common law, section 1 read with paragraph 11A of Schedule 1, to the Solicitors (Scotland) Act 1980 conferred statutory immunity on the President for his actings as President of the Society unless it be averred and proved that he had acted 'in bad faith'. The concept of 'bad faith' connoted dishonesty and no relevant averments of bad faith had been made.
(iv) Since the President held office as a public official any action against him required in any event averment and proof of 'want of probable cause' and no such averment was, or could be, made.
The principal submissions regarding liability which were advanced on behalf of the Members may be listed briefly thus:-
(i) The Tribunal is a body which, for itself and for its members, is entitled to the same privileges and immunities as are given to a court and a judge.
(ii) This gives the Members absolute privilege and immunity from suit for any statements made by them in their capacity as members of the Tribunal.
(iii) As a corollary to the submission (i), the averments in Article VI of Condescendence and the Minute of Amendment were irrelevant and should not be admitted to probation.
Counsel for the President, the Society, and the Members all sought dismissal of the action on the grounds of its incompetency and irrelevancy. It appeared to be agreed by parties that Mr Mayer, who appeared as counsel for the second pursuer should respond first to be followed by the first pursuer as a party litigant - albeit that there was but one set of pleadings for the pursuers. In the course of his submissions counsel for the second pursuer moved, after some vacillation, for the allowance of issues for a jury trial notwithstanding the absence of any express prior intention to seek such a method of inquiry. Mr Thomson, with similar hesitation, adopted that course. Counsel for the defenders were in the event content to allow that proposed mode of inquiry to be discussed subject to the condition that they be allowed to plead the existence of difficult questions of mixed fact and law rendering the case unsuitable for jury trial. Both counsel for the second pursuer and Mr Thomson were amenable to that condition.
[18] In considering the arguments advanced in relation to these broad heads of submissions, I find it convenient, notwithstanding the order in which the defenders are convened in the summons, to examine first the contention by the Members that they enjoy absolute privilege if only for the reason that the parts of the Press release in issue have chronological priority among the allegedly defamatory statements of which complaint is made.
Absolute privilege of the Members
[19] In the first speech on behalf of the Members Lord Mackay of Drumadoon (who appeared at the November/December diet) referred in detail to the provisions of the Solicitors (Scotland) Act 1980 relating to the constitution and procedures of the Tribunal, and to the provisions of the Scottish Solicitors Discipline Tribunal Procedure Rules 1989, in support of the proposition that the Tribunal was a judicial body which attracted the absolute privilege accorded to judges in the public interest of their being able to go about their judicial duties without fear of being vexed by civil suits for views expressed by them in performing those duties. In that connection reference was made by counsel to Addis v Crocker [1961] 1 Q.B.11, in which it was held that proceedings under the Disciplinary Committee established pursuant to the Solicitors Act 1957 were judicial proceedings (notwithstanding that the hearing had been held in private). In Lincoln v Davies [1962] 1 Q.B. the view was expressed that disciplinary procedures before the Inns of Court attracted judicial immunity. The factors listed by Lord Diplock in Trapp v Mackie 1979 S.C (H.L) 38 were all to be answered in a way favourable to the proposition that the Tribunal was a judicial body which attracted to it and its Members absolute privilege. During the course of this chapter of Lord Mackay's argument counsel for the second pursuer and Mr Thomson expressly intimated that they accepted that the Tribunal and its Members enjoyed absolute privilege respecting actings within the scope of that judicial activity.
[20] Counsel for the Members further referred to a number of authorities on the nature and scope of judicial privilege, beginning with Hamilton v Anderson (1856) 18D 1003. The principle of absolute privilege was further developed in Harvey v Dyce (1876) 4R 265 in which the First Division adopted what had been said in England in the judgments in Scott v Stansfield (1868) 3 Exch.220 as representing the law of Scotland from which it was clear that even averments of malice and want of probable cause did not remove the protection given to whatever might be said in the course of judicial activity. In addition, reference was made to Williamson v Umphray & Robertson (1890) 17R 905; Primrose v Waterston (1902) 4F 783 and Russell v Dickson 1998 SLT 96.
[21] The issuing of the Press release, replicating the terms of the decision announced orally by the Chairman was part of the Tribunal's judicial activity. The Tribunal was bound by paragraph 14 of Schedule 4 to the 1980 Act to publish its decision in full unless the Tribunal chose to refrain from doing so for the specific reason mentioned in paragraph 14A, which did not apply in the present case. Publication of the text of a decision could not be outwith the proper scope of judicial activity - c.f. Addis v Crocker, per Hodson L.J., 23-4; Gatley on Libel and Slander (9th Ed) para.13.5, footnote 41. The averment at p.34D of the Closed Record that the Tribunal ought not to issue any such Press release since - "at that time both pursuers were entitled to practice law and furthermore had certain duties to fulfill such as completion of part-heard criminal trials. The pursuers had no right of appeal against such erroneous, misleading and defamatory account of events about them until the Tribunal had issued its Final Decision" - was misconceived since the Tribunal had decided that the pursuers be struck off. It could not be said to be against the public interest that publicity be given to that decision.
[22] Further, the existence of errors in the terms of the decision and hence the text of the Press release did not mean that the Members were acting outwith their judicial function. The bare allegation (Closed Record 34D) that the issuing of the Press release was "malicious and defamatory" was of no pertinence where the act was covered by absolute privilege. It was averred by the pursuers that the Tribunal had acted "with said institutional prejudice" (Cond.4 in fine). It was not clear what was meant by that term. Since the pleader referred to "said" institutional prejudice it referred to some other body than the Tribunal but there was no factual connection averred between the first defender and the fourth to ninth defenders. It was to be observed that the same allegation is made against the reconstituted Tribunal (49C). However, it was clear that institutional prejudice whatever it might mean could not prevail against the absolute privilege attaching to the judicial activity.
[23] In the second speech on behalf of the Members at the resumed diet of debate Mr Tyre adopted the submissions made by his predecessor in the case. He stressed that whatever might have been the position in the earlier history, the law was settled by the time of the decision in Primrose v Waterston. The authorities on which that decision was based were fully discussed by the Lord Ordinary in Primrose whose opinion was based particularly on Munster v Lamb (1883) 11 Q.B.D.588. It was clear by the time of Primrose that inferior courts or judges enjoyed the same absolute privilege respecting words spoken or written as did superior judges and the existence of malice or prejudice was not relevant to remove that privilege, the only test being whether what was said had been uttered with reference to and in the course of a judicial inquiry. That malice did not make judicial utterances actionable was decided also in Haggart's Trustees v Lord Hope (1824) 2 Shaw's Appeal 125.
[24] For his part, in what I understood to be his response to the Members' claim of absolute privilege counsel for the second pursuer, Mr Mayer, referred to Adam v Allen (1841) 3D 1058. Although accepting that the Tribunal enjoyed absolute privilege and although on the face of it that case appears to be concerned with whether a minister of religion enjoyed qualified privilege when preaching, counsel sought to draw from the case the proposition that "where those in privileged positions including members of the Scottish Solicitors Disciplinary Tribunal go beyond material necessary to determine the issue before them and enter irrelevant fields either of inquiry, or in final judgment, depending on the circumstances, they may lose their judicial cloak of privilege". Counsel went on to say that absolute privilege was lost in a variety of situations. Thus it would be lost where a judge fell into gross error, or where he appeared prejudiced, or where he acted with impropriety or with "institutional prejudice". The decision in Starrs v Ruxton, now reported at 2000 S.L.T.42, showed that the concept of institutional bias was recognised. In relation to impropriety, reference was made by counsel to Allardice v Robertson (1836) 4W & S 102 whence counsel derived the proposition that where a judge demonstrates such impropriety as demonstrates violation of his judicial duty he loses all privilege If the law were as stated in Primrose, the courts ought to change it. On the view that privilege fell were a judge to show prejudice or behave injudiciously in court, counsel pointed in particular to the averments made in Article V page 39E-40C where it is alleged that -
"On the second day of the Hearing the fourth named defender enquired about the management consultants employed by [the pursuers' firm], namely 'NFP Associates' and in particular what the letters 'NFP' in the name stood for. Before the pursuers could reply the fifth defender said in an audible whisper 'No Fucking Practising Certificate'. These comments were met with sniggers and mirth on the part of the fourth, sixth, seventh, eighth and ninth defenders. Such intense and irreverent language uttered from and condoned by the fourth to ninth defenders showed that the fourth to ninth defenders participated in the said institutional prejudice and demonstrated such impropriety as implied they had violated their judicial duty. In so violating their duty the fourth to ninth defenders acted outwith their judicial capacities".
The impropriety of that remark had the consequence, as I understood counsel, that all of the Members lost all privilege. In relation to the Findings, it was averred in Article 6 of the Condescendence that the Tribunal had wrongly found the second pursuer guilty of a charge relating to Mark Williams, her plea not having extended to that charge. An error of that kind, as best I understood counsel, meant that the findings went beyond the scope of judicial activity.
[25] Mr Thomson in addressing the Court presented a typescript outline of his argument. As developed by Mr Thomson in his oral submissions, the key points which he sought to advance respecting the case against the Members were as follows. Firstly, a distinction was to be drawn between inferior judges and supreme court judges with the consequence that "the judicial robe must be less securely stuck to the shoulders of" members of a discipline tribunal than to those of a supreme court judge. As authority for that proposition Mr Thomson relied on McReadie v Thomson 1907 S.C.1176. When that distinction was made, so I understood the argument, prejudice, ill-will or malice were relevant as removing the absolute privilege; and grossness of error could give rise to a presumption of ill-will. In that connection Mr Thomson referred to Erskine (8th Edition) I:ii:32 and to Stair IV:i:5. On that premise Mr Thomson in his typescript referred to various averments indicating error on the part of the Members. Thus, for example, he pointed to the averment, made at page 34C-D that "the issue of that Press Release in a materially inaccurate and misleading form was malicious and defamatory", this being made against the background of an averment claiming that the Tribunal had been advised that all fraud and dishonesty on the part of the pursuers had been departed from. He likewise referred to the "NFP" averments to which counsel for the second pursuer had referred. There are other instances given in the typescript which I do not think it necessary to rehearse in detail.
[26] As I have already noted both Mr Mayer and Mr Thomson expressly accepted that the Scottish Solicitors Disciplinary Tribunal was a tribunal whose statements enjoyed the absolute privilege of judicial bodies, although at times what was subsequently said by them might appear to indicate a movement from or lack of appreciation of that concession.
[27] I am satisfied on the authorities placed before me that the concession was rightly made having regard to the constitution, function and procedures of the Scottish Solicitors Disciplinary Tribunal. Addis v Crocker was concerned with the proceedings of the Disciplinary Committee constituted in England under the Solicitors Act 1957 and the rules made under and pursuant to that statute. Although there are of course certain variations between the provisions then applicable to that Committee
and those now applicable to the Scottish Solicitors Disciplinary Tribunal (principally, the hearings of the English Committee being required always to be in private) the Court of Appeal held that absolute privilege applied. In doing so it relied on, among others, Dawkins v Rokeby (1873) 8 Q.B.255. Shortly after that decision, disciplinary proceedings against barristers by their respective Inns of Court were recognised as enjoying a similar judicial privilege. In Trapp v Mackie (concerned with the absolute privilege of judicial proceedings in so far as extending to witnesses), Lord Diplock observed (44) that there was no difference in this matter between the law of Scotland and that of England; the extension of the privilege to tribunals acting in a manner similar to a court had been recognised in Dawkins. In holding that absolute privilege extended to words spoken in the course of a local inquiry held pursuant to the Education (Scotland) Act 1946 Lord Diplock listed ten features of the procedures of that local inquiry shared by ordinary courts of justice, whose cumulative effective was more than enough to justify the contention that the local inquiry was acting in a manner as nearly as possible similar to that in which a court of justice acts. As was pointed out by Lord Mackay of Drumadoon, with the exception of the ninth characteristic (respecting which the present Tribunal's position might be a fortiori) the other factors listed were all answered in the present case in a manner favourable to the contention that the proceedings of the Scottish Solicitors Disciplinary Tribunal attracted judicial privilege.
[28] It is convenient at this point to advert to Mr Thomson's submission, founded on McReadie v Thomson, that the judicial privilege attaching to inferior courts differs, in some way, from that attaching to the supreme courts.
[29] McReadie v Thomson concerned an action of damages for wrongful imprisonment on a warrant granted by a magistrate acting illegally and in excess of his jurisdiction. It was not concerned with a claim for defamation for words spoken in the course of judicial activity. The Court distinguished judicial immunity from suit respecting words uttered and the issuing of an order for imprisonment in excess of the magistrate's jurisdiction. In regard to the former (words uttered) the Lord Justice Clerk (McDonald) at 1183 said this:-
"Is there, then, any immunity attaching to the Judges of the inferior Courts for their actings when sitting in judgment. Certainly there is. They cannot be made amenable for words used, however severely they may comment on the conduct of individuals, provided such words are uttered where acting in the exercise of their magisterial functions. Of this the case of Waterston is the latest and most emphatic instance. For in that case the Magistrate, who was dealing with a charge of crime against a child, sent for the child's father, who was in no way party to the proceedings, and was not a witness, and used words to him as regarded his conduct in relation to his child, which, while the Court considered them to be highly reprehensible, they held could not be made the ground of an action of damages, the Magistrate having at the time been engaged in his official capacity. The principle of this is that the right to express himself freely in dealing with matters before him must not be hampered by apprehension that he may be sued in a civil Court and subject to damages, as if what he said had been uttered by him as an ordinary citizen not acting in a public judicial capacity, the words being uttered what presumably at the time seemed to him to be good and just cause".
The Lord Justice Clerk however then drew a distinction between words uttered in the course of judicial activity and the official acts done in that activity and he said this:-
"But while this is so, it is a totally different question whether a Magistrate who when sitting as such does official acts which he has no power to do under a statute in accordance with which he is bound to act, and which judicial acts have the effect restraining the liberty of the subject, and subjecting him to penalty in his person, is immune from civil consequences for the wrong which he has done ....".
[In passing, I would simply observe that the liability of a magistrate for the granting of an illegal warrant was subsequently restricted by provisions in the Summary Jurisdiction (Scotland) Act 1988 now reflected in section 170 of the Criminal Procedure (Scotland) Act 1995]. McPhee v McFarlane's Executor 1933 S.C.163, mentioned by Mr Thomson in the Appendix to his typescript, is also a case concerned with an allegedly unlawful warrant for imprisonment rather than a claim for damages for defamation and in my view it does not assist his primary proposition.
[30] I therefore reject the submission by Mr Thomson that, in regard to defamatory statements, the nature of the judicial privilege attaching to proceedings of the Tribunal differs from the protection from actions of defamation given to statements made by judges in the superior courts.
[31] I turn now to the nature of that privilege. Whatever may have been the position in Scotland at the beginning or early part of the 19th century it is plain that in Harvey v Dyce the First Division of the Court of Session stated the law of Scotland as being in the terms expressed by the Court of Exchequer in Scott v Stansfield. In that case it was alleged by the plaintiff that the words uttered by the defendant County Court judge - "you are a harpy, preying on the vitals of the poor" - were uttered maliciously, and without reasonable cause, and were irrelevant to the inquiry before the defendant County Court judge. It was argued on behalf of the plaintiff that a judge lost his judicial character if he went out of his way and, with reference to wholly irrelevant matters, falsely and maliciously made slanderous statements. That argument was however firmly rejected and the action was held to be not maintainable despite clear averment of malice and lack of reasonable cause. In his judgment Kelly C.B. stated that the provision of the law whereby no action would lie against a judge for words spoken in his judicial capacity was - "... not for the protection of benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences". The absolute nature of the privilege was affirmed subsequently in Primrose v Waterston - which effectively overruled Allardice v Robertson, upon which Mr Mayer had placed reliance. It is clear from the analysis conducted by the Lord Ordinary (Stormonth-Darling) in Primrose v Waterston and particularly his reference to the judgment of the Court of Appeal in Munster v Lamb that averments or allegations of the absence of justification or excuse, of the presence of malice, of personal ill-will, or of irrelevance to the subject matter of the judicial proceedings cannot defeat the privilege attaching to statements issued in the course of such judicial proceedings. The test was clearly stated by the Lord Justice Clerk in Primrose as being - "whether the words complained of were uttered with reference to and in the course of a judicial inquiry".
[32] Applying that test it is to my mind abundantly clear that in issuing and publishing its findings or decisions a court or tribunal is acting with reference to and in the course of its judicial inquiry (cf Hodson, LJ in Addis v Crocker, 2304; Gatley on Libel and Slander, para.13.5, footnote 41). It is beyond any conceivable argument that the performance by the Tribunal of its duty to issue its Findings was not in the course of its judicial functions. I likewise find it beyond any real argument that the publication of the text of the decision given in the course of proceedings somehow falls outwith the proper scope of judicial activity.
[33] Virtually all of what was advanced by Mr Thomson and counsel for the second pursuer focused on what is averred or asserted to be acts of impropriety - such as the NFP comment - or to be prejudice, malice, or error in relation to words uttered or spoken in the course of steps which would form the normal part of judicial activity. Essentially that is the argument advanced and rejected in Scott v Stansfield and has no pertinence to the proper criterion of whether the words complained of were spoken or published in the course of judicial proceedings. For that reason I find the case against the Members to be irrelevant.
[34] For completeness however it may be appropriate that I address more specifically the particular contentions contained in Article VI of Condescendence that in the Findings the Tribunal found the second pursuer guilty of a particular charge (Mark Williams) to which a plea of not guilty had been accepted. Examination of the Findings discloses that the averment is not truly correct. The second pursuer was not found by the Tribunal to be guilty of that charge but facts relevant to that charge were included in the Findings. Assuming in favour of both pursuers that the error was not an unconscious oversight or mistake in what was on any view a complicated case in which evidence had been partly led, it would nevertheless not avail them in taking the Findings outwith the scope of statements issued in the course of judicial proceedings.
[35] I would add that the additional article of condescendence introduced by the Minute of Amendment avers a similar error in the terms of the decision announced on 7 April 1995. This averment, coupled with averments alleging the absence of a response satisfactory to the pursuers of a request by them for evidence of the database records of the date of the creation of the Press release, is put forward as the basis for the belief and averment that "the judgment of the Tribunal had been made and written before the completion of the case". I observe that, in my view, the primary averments put forward do not support the deductory "believed and averred" conclusion. Further, the first premise appears to be unfounded in respect that the text of the decision given on 7 April 1995 does not find the second pursuer guilty of the Mark William charge. But, fundamentally, even if the Tribunal had engaged in the exercise of drafting a proposed text of its decision or findings in advance of the conclusion of submissions, the issue of its decision of findings, even if it could conceivably be said that they were flawed by the anticipatory nature of the draft on which they proceeded, must yet remain plainly within the scope of the judicial inquiry. The averments in the new Article VIII of Condescendence, introduced by the Minute of Amendment are thus wholly irrelevant and assist the pursuers in no way in their endeavour to construct a relevant case against the Members.
[36] In summary, I conclude that nothing has been relevantly averred by the pursuers to show that the Members were not acting within the scope of their judicial functions when either of the documents complained of was published. It follows that in my view no relevant case has been advanced against the Members.
[37] Counsel for the Members further submitted that if they were not entitled to absolute privilege in respect of the issue of the Press release and the Findings they would nonetheless be entitled to qualified privilege. In view of what I have decided so far, the issue of qualified privilege does not arise. I deal with what is comprehended by qualified privilege in the context of the case against the first defender and in light of those views, I think it sufficient to say that I see no basis on which there are relevant averments of "malice" leading to loss of that privilege on the part of the Tribunal or the Members.
The President's Statements
[38] I turn now to the case pled against the President and the Society. In a submission also adopted by counsel for the Society, Mr Dunlop, who appeared for the President, contended that the statements said to have been made by the President of which the pursuers now complain were not relevantly averred to be statements defamatory of the pursuers.
[39] Of the three statements of which complaint was made the first two were linked. Those statements were "there is no reason why this matter should not be reported to the police" .... and ... "in the past, when there has been evidence that solicitors have been acting fraudulently the matter has sometimes been brought to the police's attention". In the context accepted by the pursuers in their own averments of someone employed in the partnership having altered the date of signature and the commencement of five legal advice and assistance forms submitted to the Scottish Legal Aid Board, those statements were not ex facie defamatory of the pursuers. If it were contended that it was defamatory per se to say that there was no reason for not reporting the matter to the police, that was plainly met with veritas since on the pursuers' own averments, recognising the existence of fraudulent activities within the firm, there was indeed no reason for not reporting matters to the police. The pursuers were not alleged in the statement to have altered the forms and it was not averred that a reasonable listener would assume that it was fraudulent activity of the pursuers which was to be the subject of report to the police. Further, said Mr Dunlop, even if the statement were referable to the pursuers it was still not defamatory. To say that a person was being investigated by the police had been held not to be defamatory - Lewis v Daily Telegraph [1964] A.C.234. A similar case in Scotland was Meikle v Wright (1893) 20R 928 in which, on a narrative of "disgraceful scenes" having occurred at a public house, a newspaper editorial's conclusion, with reference to the publican, that "the Magistrates will, we hope, deal with this gentlemen" was held not to be slanderous.
[40] In response to this particular section of the submissions of Mr Dunlop, counsel for the second pursuer asserted that the first two linked statements complained of were defamatory per se. But if that were not the case an innuendo was pled in Article VII of Condescendence. The averments to which he referred (Closed Record 44B-D) are in these terms:
"The statements by the defenders are false and calumnious. They are defamatory of both pursuers in that they made false imputations or [sic] criminality which would tend to materially lower the reputations of the pursuers in the minds of the public and subject the pursuers to public contempt. These state that both pursuers were involved in criminal behaviour as regards legal aid claims which could render the pursuers liable to criminal prosecution".
The fact that the pursuers were the subject of the disciplinary proceedings meant that it was to be assumed that the pursuers were to be reported to the police, and hence that they were guilty of criminal behaviour.
[41] In relation to the third defamatory statement complained of in the averments at 18D-E and set out in para.12 above, Mr Dunlop pointed first to the fact that the averment did not endeavour to distinguish between defenders; nor did it precisely aver what was said by each; nor did it give any particular factual context to the remarks. The absence of proper specification of those matters rendered this averment irrelevant. Secondly, however, counsel submitted that the particular defamatory meaning - that the pursuers "had wilfully and knowingly defrauded the Scottish Legal Aid Board" - which in this instance the pursuers sought to infer - was not capable of being properly drawn. The Oxford English definition of "permit" was "to allow, suffer, give leave, not to prevent". The word "permit" therefore connoted passivity and a reasonable person would not understand it as meaning the wilfully and knowingly carrying out of the active step of defrauding the Board.
[42] Mr Mayer's position on this particular aspect of the argument, as best I could understand it, was that while the pursuers had accepted before the Tribunal that they had vicarious responsibility for the admitted fraudulent actings of the member of their staff of the partnership, this was, said Mr Mayer, wholly different from their having permitted those actings to take place. Accepting such responsibility was, said Mr Mayer, wholly honourable but accepting that such activities had been permitted was utterly different. To say that the pursuers had permitted fraud was just to say that they had been guilty of actively and wilfully defrauding the Scottish Legal Aid Board.
[43] Looking to the first two linked statements in issue, it is I think clear that they do not in direct terms say anything defamatory about the pursuers or either of them. (It is not in the same category of a direct aspersion such as the remark made in the case of Scott v Stansfield, already quoted). The next question comes to be whether in the circumstances the natural implication of the words, is that the pursuers had been guilty of criminal behaviour involving the making of fraudulent claims upon the Legal Aid Board. In the accepted circumstances of fraudulent claims having in fact been made by one or more of the assistants employed in the partnership, I do not consider that the two remarks complained of reasonably carry the implication that the pursuers are the persons who have committed those frauds. No other special circumstances are averred to displace that implication of the words used. I would add that to say that there are circumstances meriting consideration by the authorities does not amount to a defamatory allegation that the person concerned is guilty of the conduct to be investigated - see Meikle v Wright; Lewis v Daily Telegraph. And to observe that in the past where there has been evidence of solicitors acting fraudulently a report had sometimes been made to the police does not appear to me to affect the implications of the first branch of this linked statement.
[44] I would add that it is of course for a pursuer in a defamation action to aver the innuendo or defamatory meaning for which he contends and it is not for the Court to endeavour to find an appropriate innuendo to supplement or correct the deficiencies in the pursuers' pleadings - see Russell v Stubbs Limited 1913 S.C.(H.L.) 14, per Lord Kinnear 22.
[45] In relation to the third of the statements attributed to the President by the pursuers - that "they permitted fraudulent claims to be made" - counsel for the President relied as part of his submission on the proposition that the dictionary definition of the word "permit" was such as to exclude the meaning which the pursuers seek to attribute to the phrase, namely that they knowingly and wilfully committed a fraud upon the Legal Aid Board. Taking the word "permit" in isolation I am not persuaded that Mr Dunlop's reliance on the dictionary definition provides in itself a complete answer to the pursuers' claim. It appears to me that to permit something to happen may well carry with it the connotation that the person granting the permission was well aware of the activity which he was permitting and was thus party to that activity. On the other hand the term "permit" may simply mean that circumstances arose in which, for want of proper controls or checks, others were enabled to commit fraudulent activities in circumstances in which had those controls and checks been in existence, the frauds would have been detected. The factual context therefore becomes quite important. In one context the statement that a fraud was permitted might simply infer the absence of proper administrative control. In others it might infer a knowledge and a willingness to indulge in fraud.
[46] The difficulty in the present case is that the pursuers do not set out clearly any particular circumstances which, in the whole context of their averments, would plainly result in the latter meaning being reasonably implied. Given that the Tribunal had found the pursuers guilty of professional misconduct involving the permitting of fraudulent claims to be made, it appears to me that the pursuers ought properly to have set out particular circumstances in which the phrase "permitted fraudulent claims to be made" went beyond the background explained in the Press release and the averments made on behalf of the first defender. Those averments are consistent with the explanation or repetition of the decision of the Tribunal and unless particular circumstances were to be averred rendering that beyond their comment or repetition of what had been judicially decided by the Tribunal, the relevancy of this branch of the case is extremely doubtful. However, had that been the only issue in the case, I might have been persuaded to allow a proof before answer if only to set the particular remarks in context, but I would have done so with some hesitation because it appears to me that the pursuers have not properly faced up to the requirements of pleadings in a case such as this. This may well stem from the pursuers' approach, with which I do not agree, of not endeavouring to treat the statements or responsibilities of the various defenders in any discrete way, and of simply lumping all together indiscriminately.
[47] However, whether defamatory or not, the statements of the President are said to be subject to qualified privilege and I therefore turn to that issue.
Qualified privilege of the President
[48] Both the President and the Society plead qualified privilege.
[49] It was expressly conceded by counsel for the second pursuer and Mr Thomson that each of the statements of the President of which complaint is made was uttered on an occasion which was a privileged occasion; that the plea of qualified privilege was to that extent properly invoked; and that it was thus necessary for the pursuers to aver and prove "malice". The discussion accordingly focused largely on what was necessary by way of averment to constitute "malice", sufficient to remove the protection given to those speaking on a privilege occasion such as that upon which the President was accepted as having spoken.
[50] It is convenient at the outset to deal with two relatively short points.
[51] First, at one stage in the course of his address Mr Mayer appeared to make a submission to the effect that malice was to be inferred from the violence or extremity of the language used. In connection with that proposition counsel cited Anderson v Palombo 1986 S.L.T.46 and asserted that violent and extreme language had been used in the present case.
[52] It was not clear to me whether in the event counsel persisted in this submission but in my view it is manifestly untenable. In Anderson the Lord Ordinary referred in restrictive terms to the possibility of malice being inferred from the extreme violence of the language selected by the utterer. He said that consideration of certain cases led him "to conclude that malice may be inferred from the language used in the proved defamatory statement its intensity, violence, virulence or recklessness without proof of prior ill-will. The language used, however, must be very extreme before such an inference can be drawn (Lyle v Henderson)". In my opinion on no reasonable view could the words attributed to the President ever begin to approach the characterisation of violent or extreme language.
[53] Secondly, at various points in the pursuers' pleadings it is averred that the statements made by the defenders were made "maliciously" or were "borne of malice" or the like. Counsel for the second pursuer submitted that a bare averment of malice was sufficient. He referred to the observations of Lord Skerrington in Suzor v McLachlan 1914 S.C.306, 318. Counsel for the Society suggested in her submissions that on one reading of Lord Skerrington's remarks his Lordship was simply recognising that there may be dramatic cases in which reference to extrinsic circumstances was not necessary. For my part I do not consider that the observations may be read in the limited sense suggested by Mrs Smith. However, as Mrs Smith also pointed out, in company with counsel for the President, the observations of Lord Skerrington are in conflict with what was said by the Lord President in Suzor. More importantly perhaps, subsequent to Suzor the adequacy of a bald averment of malice was considered in Rodgers v Orr 1939 S.C.121. The Lord President (Normand) stated at 137:-
"... it is not enough for the pursuer merely to say that the defender spoke maliciously; he must go on to aver facts and circumstances, intrinsic or extrinsic from which malice can reasonably be inferred. The test is whether, if the facts averred by the pursuer were admitted or proved in evidence, a reasonable jury could hold that the defamatory words were not uttered by the defender honestly and in discharge of the duty or right which is the foundation of the privilege".
Similar views were expressed by Lord Moncrieff (with whom Lord Carmont concurred) at 133. I accordingly consider that the bald mention of the defamatory statements having been made maliciously (or in some synonym therefor) is not sufficient. Mr Thomson in a more realistic approach to the matter appeared to recognise the need for averment of specific matters whence malice might be inferred and his typescript contained a note of those averments upon which he relied for this purpose.
[54] However, before examining those averments I consider it appropriate to consider what is involved in the concept of malice sufficient to defeat the qualified privilege attaching to the occasion of the utterance.
[55] I was referred by counsel for the defenders to what is perhaps the leading case of Horrocks v Lowe [1975] A.C.135, referred to in the subsequent Scottish case of Fraser v Mirza 1993 S.C.(H.L.) 27 in which there was quoted with approval by Lord Keith of Kinkell a passage from Lord Diplock's speech in Horrocks of which the following is part:-
"... the public interest that the law should provide an effective means whereby a man can vindicate his reputation against calumny has nevertheless to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion. It is not actionable even though it be defamatory and turns out to be untrue. With some exceptions which are irrelevant to the instant appeal, the privilege is not absolute but qualified. It is lost if the occasion which gives rise to it is misused. For in all cases of qualified privilege there is some special reason of public policy why the law accords immunity from suit - the existence of some public or private duty, whether legal or moral, on the part of the maker of the defamatory statement which justifies his communicating it or of some interest of his own which he is entitled to protect by doing so. If he uses the occasion for some other reason he loses the protection of the privilege.
So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interests. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. 'Express malice' is a term of art descriptive of such a motive. Broadly speaking, it means malice in the proper sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interest.
The motive with which a person published defamatory matters can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true, this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person".
For completeness I would also add to the quotation the further passage in the speech of Lord Diplock at 150E-G:-
"Even a positive belief in the truth of what is published on a privileged occasion - which is presumed unless the contrary is proved - may not be sufficient to negative express malice if it can be proved that the defendant misused the occasion for some purpose other than that for which the privilege is accorded by the law. The commonest case is where the dominant motive which actuates the defendant is not a desire to perform the relevant duty or to protect the relevant interests, but to give vent to his personal spite or ill-will towards the person he defames. If this be proved then even positive belief in the truth of what is published will not enable the defamer to avail himself of the protection of the privilege to which he would otherwise have been entitled. There may be instances of improper motives which destroy the privilege apart from personal spite. A defendant's dominant motive may have been to obtain some private advantage unconnected with the duty of the interest which constitutes the reason for the privilege. If so, he loses the benefit of the privilege despite his positive belief that what he said or wrote was true".
Lord Diplock went on to indicate that judges and juries should be slow to draw the inference that a defendant was actuated by improper motives unless satisfied that he did not believe that what was said or written was true. There then follows the following passage at 151A:-
"Qualified privilege would be illusory, and the public interest that it is meant to serve defeated, if the protection which it affords were lost merely because a person, although acting in compliance with a duty or in protection of a legitimate interest, disliked the person whom he defamed or was indignant at what he believed to be that person's conduct and welcomed the opportunity of exposing it. It is only where his desire to comply with the relevant duty or to protect the relevant interests plays no significant part in his motives for publishing what he believes to be true that 'express malice' can properly be found".
It was not argued by the pursuers in terms that Horrocks did not represent the law of Scotland and accordingly, putting matters very shortly, on the basis of Horrocks, I consider that it may thus be said that a pursuer in a defamation action may aver and prove malice either (i) by averring and proving that at the time at which the statement was made its maker knew that what he or she was saying was untrue (or had that wholly reckless indifference to truth which the law in cases such as fraud equiparates with positive knowledge of untruth) or (ii) by averring and proving that the statement was made predominantly for some private spite or ulterior motive divorced from the proper use of the privileged occasion. On the other hand the fact that the maker of the statement is by reason of the matter with which he is concerned ill-disposed, or unfriendly towards, or prejudiced against the person who is the subject of the statement or to whom the statement relates does not amount to "malice" in the legal sense.
[56] Counsel for the second pursuer submitted however that the making of a report or statement recklessly, or without sufficient inquiry constituted malice. He referred to Ingram v Russell as reported in (1893) 1 S.L.T.70 - although the case is in fact fully reported in (1893) 20R 771 and to the report of Dinnie v Hengler 1909 2 S.L.T.237 (also reported at 1910 S.C.4). I am unable to see the first of those cases as being of any assistance in relation to counsel's proposition. In the latter case the pursuer was employed as a box office cashier by the defender, the manager and proprietor of "Hengler's Cirque". Her father - averred to be a "celebrated athletic champion" - had also been employed by the defender, taking charge of the refreshment bar in the "Cirque" but had intimated his intention of giving up that position which it was said had led to ill-feeling. The defender in that case was averred to have accused the pursuer of defrauding him by selling old tickets. The averments of malice proceeded on the basis of the ill-feeling deriving from the father's earlier decision to depart his position in the refreshment bar and the absence of any investigation at all by the defender before making the accusation. The combination of those circumstances was held to be sufficient for inquiry into an issue of malice.
[57] Counsel for the President, in a submission adopted by Mrs Smith for the Society, accepted that Dinnie indicated that a complete want of inquiry might, when taken with other circumstances of ill-will, provide a basis wherefrom malice might be inferred. However, acting on insufficient inquiry could not constitute malice. Put otherwise, there was no duty to make inquiry, failure in which might destroy any reliance on an accepted belief in the justification or propriety of the allegation contained in the statement in issue. In support of that proposition counsel for the President referred additionally to Murray v Wylie 1916 S.C.356 and Heyford v Forrester Paton 1927 S.C.740.
[58] In my opinion, on this particular point Mr Dunlop's submissions are to be preferred. The former case of Murray v Wylie casts perhaps less illumination than the case of Heyford but the report of the latter contains this important passage wherein, having adverted to steps of inquiry which the defender in that case might prudently have taken and respecting which he was criticised for his omission, the Lord Justice Clerk says (755) -
"The criticism involves, it may be, that the defender acted hastily, negligently, without that sound judgement which prudence would dictate. But that, I think, is not enough. So to act, provided that action was taken in bona fide - and there is nothing to displace that view - does not connote malice. The pursuer's argument must be not that the defender acted without inquiry - for he did inquire of Mr Beveridge - but that he acted on insufficient inquiry. I am unaware of any case in which the mere inadequacy of inquiry made by a defender has been held sufficient to give rise to an inference of malice on his part. In short, I am of the opinion that the pursuer's averments fall short of what the law requires in order that malice may be inferred".
That approach is consistent with the terms of Lord Diplock's speech in Horrocks in the report of which at 152H he says -
"I know of no authority which throws doubt upon this proposition apart from a Delphic dictum in the judgment of Greer, L.J. in Watt v Longsdon [1930] 1 K.B.130, 154 where he gives as an example of a state of mind which constitutes malice: 'a man may believe in the truth of a defamatory statement, and yet when he published it be reckless whether his belief be well-founded or not'. If 'reckless' here means the maker of the statement has jumped to conclusions which are irrational, reached without adequate inquiry or based on insufficient evidence, this is not enough to constitute malice if he nevertheless does believe in the truth of the statement itself. The only kind of recklessness which destroys privilege is in difference to its truth or falsity".
[59] Relating this more specifically to the present case, I consider that in particular, the contention of the pursuers that having received the Press release the President ought to have checked that what had been said by the Tribunal was accurate and his failure to do so constituted recklessness sufficient to deprive him of qualified privilege is misconceived.
[60] A further aspect of the law relating to malice arises in the present case from the absence in the pursuers' pleadings of any real effort to distinguish between the position and knowledge of the President when he made the statements attributed to him and the knowledge and position of the Society collectively, or of others in its organisation. At times I understood Mr Mayer to contend positively that all was covered by the catch phrase of "institutional prejudice" and that the alleged collectively derived prejudice - which he then equiparated with malice - of the Society and individuals within it must apply to the President throughout. (Mr Thomson, I think, did not adopt such an extreme position simply contending that the references to "institutional prejudice" were a background for interpreting the President's words and actions).
[61] Counsel for the President and the Society submitted on the other hand that to overcome qualified privilege the pursuers required to aver and prove that the President personally was motivated by malice when making the allegedly defamatory statements. In other words the pursuers required to show either that the President himself knew that what he was saying was untrue or that he said the words complained of from the dominant motive of some ulterior personal private spite unrelated to the proper performance of his moral or legal responsibilities at the Press conference. In this regard I was referred to certain authorities, the principal ones being Keay v Wilson (1843) 5D 407 and Eggar v Viscount Chelmsford & Others [1965] 1 Q.B.248. No relevant contrary authority was put forward by counsel for the second pursuers or the first named pursuer in person.
[62] In my opinion the submission of counsel for the President and the Society on this aspect of the case are well-founded. In Keay the pursuer sought damages for defamation against two defenders who happened to be brothers and who had jointly objected to the renewal of a liquor licence on the ground of the pursuer's alleged unfitness to hold such a licence (that allegation being the alleged defamatory statement). The occasion was attended with qualified privilege. There was evidence of malice against the one brother (Thomas) but little or none against the other brother (Robert). In charging the jury regarding malice the Lord Justice Clerk (Hope) said (411) that -
"The evidence of malice points chiefly to Thomas Wilson. It is not enough to say that, because Thomas had ill-will to the pursuer, Robert took up his case from the same cause. You must not go upon such a supposition. You must have proof as to Robert's motives as well as Thomas's".
The case of Eggar concerned a decision of a committee of whose members some were shown to have been activated by malice but others (including the secretary communicating the decision) were not so motivated. Those not so motivated were not liable for the defamation perpetrated by the malicious committee members. The matter was put thus by Lord Denning, M.R. at 265C :-
"If the plaintiff seeks to rely on malice to aggravate damages or to rebut a defence of qualified privilege or to cause a comment otherwise fair to become unfair then he must prove malice against each person whom he charges with it. A defendant is only affected by express malice if he himself was actuated by it: or if his servant or agent concerned in the publication was actuated by malice in the course of his employment".
For completeness, I should record that Mrs Smith for the Society put forward the corollary to the foregoing that, while an employer might be vicariously responsible for defamation by an employee where, albeit speaking on an occasion attracting qualified privilege, the employee was actuated by malice, it was necessary that the malice be directed towards the employer's affairs before vicarious liability would attach to the employer - see Aiken v Caledonian Railway Company 1913 S.C.66.
[63] Against that analysis of what is required by way of averment and proof of malice I turn to the averments relied upon by the pursuers which, for convenience, I endeavour to classify and to label with catch-word headings as follows:-
A: Procurator's communings
[64] By way of background to these averments it appears that the Annual General Meeting of the Society was held in March 1995 at The Gleneagles Hotel. On 17 March the President addressed the Conference. The pursuers then make the averment that later the same day - "the Pursuers' Solicitor, Mr William McReath held negotiations to settle the ongoing Discipline Tribunal with the Second Defenders' Procurator. The Procurator accepted that all charges of dishonesty against the Pursuers ought to be dropped but he firstly wished to confer with the Law Society Council Members, all of whom were at the meeting. Believed and averred that he did so confer because the Procurator a short time later conferred with the Pursuers' solicitor telling him that all such charges would be withdrawn. The Second Defenders therefore knew or ought to have known that such a course was about to be taken by their Procurator. On the day of the Discipline Tribunal's decision the First and Second Defenders therefore knew or ought to have known that all charges of dishonesty against the Pursuers had been withdrawn. At the very least they ought to have checked that matter before making any announcement to the Press".
[65] Later in the same Article 3 of Condescendence it is averred, on the basis of the procurator's account and file lodged for taxation in relation to expenses, that -
"On 29 March 1995 said Procurator wrote a ten page letter to the second defenders informing them inter alia of the pursuers' pleas. On 30 March 1995 said Procurator sent the Discipline Tribunal Clerk a different ten page letter again detailing the pursuers' pleas, a copy of which was sent to the Second Defenders. On 4 April 1995 said Procurator's Account shows that he also discussed the matter of the pursuers' pleas in mitigation with the Second Defenders and the action he proposed to adopt. On 5 April 1995 said Procurator was engaged in an hour long meeting with the Second Defenders. On 7 April 1995 between 11am and 1pm, one hour before the Third Defender's decision, said Procurator had a two hour meeting with the Deputy Secretary of the Second Defenders, again to discuss the pleas. On 7 April 1995 said Procurator had a final meeting with the Second Defenders lasting one hour sometime after the Third Defender's decision. The Defenders thereby knew or ought to have known that all allegations of fraud and dishonesty on the part of the pursuers had been departed from by the Law Society's Procurator".
B: Extrinsic events
(i) The Gleneagles Speech: It is averred that the President in his conference speech "announced that there was an ongoing Discipline Tribunal. He meant the only ongoing Discipline Tribunal, namely that which involved the Pursuers. He announced that said Discipline Tribunal would be a watershed and that there would no longer be any hiding place for fraudulent solicitors. By that he meant inter alia (sic) the Pursuers".
(ii) Celebratory party: In Article 7 of Condescendence it is averred - "on or about the evening of 7 April 1995, that is the day when the Tribunal issued its interlocutor, the First and Second Defenders rejoiced in their removal of the pursuers from the roll of Solicitors in Scotland by throwing a celebratory party in Edinburgh".
(iii) STV Interview: In Article 8 of Condescendence, ostensibly devoted to the averments of loss, one finds this averment: "On 7 April 1995 [the President] appeared on Scottish Television and said that the pursuers would never practice law in Scotland again. In particular he said with relish that 'He (by whom he meant Mr Thomson) and the law are finished'".
(iv) Failure to recant: As I understood it the pursuers also sought to rely upon averments to be found at page 47B in these terms:- "The said Fiscal one Hugh Nelson has subsequently written a letter dated 28 April 1999 in connection with the Opinion of the Court saying in clear terms that he did depart from all allegations of dishonesty. Said letter is produced hereunder referred to for its whole terms and incorporated herein brevitatis causa. The first defender so long as he remained President of the Law Society of Scotland and the second defenders at all times had a duty to check with their Fiscal before insisting on imputing personal dishonesty upon the pursuers. They ought to have established with Mr Neilson that no dishonesty remained as an issued (sic) regarding either pursuer. Having done so they would have been in the position which they ought to have been in since the withdrawal of dishonesty by Mr Neilson. The first and second defenders ought then to have cleared the pursuers' name with as much publicity as they defamed them. They failed over a period of three and a half years to do that and insisted upon a Finding of personal dishonesty being put before three Judges of the Court of Session".
In connection with this sub-head it may be noted that the first defender demitted office as President in May 1995.
I take first the averments which I have grouped under Head A and which do not suggest the presence in the mind of the President of any ulterior spite or motive not germane to the matters with which he was concerned. The pursuers' contention, as I understood it, was that these averments might support proof that the President knew or ought to have known that the claimed and (and for these purposes, assumed) defamatory implications of his remarks were untrue.
[66] In summary, counsel for the President pointed out firstly that the averments claim only that the second defenders (the Society) knew or ought to have known that all allegations of personal dishonesty had been withdrawn. It is not averred that the President, as an individual, either knew or ought to have known that those allegations had been withdrawn. Further, even if by some means, the President were to be placed in the position of the Society collectively, the pursuers did not offer to rise to the standard of proving that the President knew that what he was saying was untrue. Everything was qualified by the weaker alternative of "ought to have known".
[67] While I appreciate that on very first sight those contentions may appear to be technical points of written pleadings, I have come to the view that in the circumstances of a case such as this they are not mere technicalities but points of substance.
[68] In light of the authorities which I have already discussed, I consider it to be well established that malice requires to be personal to the utterer of the statement. Since - in relation to this category of the averments relied upon as indicative of malice - it is thus essential for the pursuers to aver and prove actual dishonesty on the part of the President, general averments of the communication of knowledge or information to the Society or other officers or employees of the Society is not sufficient.
[69] Secondly, while the formula "knew or ought to have known" is no doubt appropriate in certain pleading contexts, particularly perhaps those alleging negligence (where for example the negligence may lie on one hand in the failure to make inquiry or draw proper conclusions from other facts or on the other hand to proceeding despite established knowledge) it is not in my view sufficient in cases where it is necessary to prove actual knowledge on the part of the maker of a statement of the untruth of the statement. For the reasons already discussed I do not consider that failure to make proper inquiry, however reprehensible, may constitute malice. An offer simply to prove that the President ought to have known that all charges of dishonesty had been withdrawn is therefore not sufficient. The relevancy of a pursuer's case is tested by the weaker alternative and by that test it is clear that the pursuers do not undertake to prove the absence of honest belief on the part of the President. Counsel for the second pursuer was dismissive of this difficulty in the pleadings for the pursuers. When asked to address this issue his response was noted in these terms -
"There will be cases where the gap between 'knew' and 'ought to have known' will be extremely wide and a defender would have to know on which the pursuer relies. The law gives them protection in that regard by the weaker alternative rule. But the rule applies to the material facts. The knowledge of the President on the occasions we are discussing is a material fact and what I say is that in this case the distinction or gap between whether the President knew or ought to have known from what he heard at Gleneagles, these letters and these meetings, the gap - if there is one - must be so small as to render any distinction between knew and ought to have known to be distinction without a difference".
[70] Suffice to say, I did not find this response to be satisfactory. The matter is in my view of considerable importance and it is not sufficient to contend merely that there were circumstances whereby the President ought to have known that the allegations of personal dishonesty on the part of the pursuers had been departed from by the Fiscal. Further, in the circumstances of the proceedings before the Tribunal, the phrase "departing from all allegations of personal dishonesty" involves an area of uncertainty. In that connection it is to be observed that the statements complained of were made following the issue of the Press release by the Tribunal and it is not self-evident from its terms that the pleas of guilt to professional misconduct could not infer any possible allegation of dishonesty. The Press release does not record that the procurator "departed from all allegations of personal dishonesty" on the part of the pursuers. As was pointed out by counsel for the second defenders, in its Opinion delivered on 12 March 1999 respecting the pursuers' appeal against the Tribunal's decision, the Inner House of the Court of Session
stated -
"We are not, however, persuaded that any universal withdrawal of allegations of personal dishonesty was effected. If intended by the Fiscal, we are not persuaded that such a universal withdrawal was effectively communicated to the Tribunal".
Whatever discussions or negotiations may have proceeded the tendering of the pleas of guilt to professional misconduct, what was decided by the Tribunal and reported in its Press release must be the ultimate, crucial matter in relation to the President's state of knowledge.
[71] So far as the second category of averments which I have grouped under Head B are concerned, it was not, I think, contended that these were relevant to show lack of honest belief in the President's mind when he made his statements at the Press conference. Plainly the Gleneagles speech, which is prior in time to the hearing at which the pleas were tendered, does not bear on the President's knowledge of those later events. The celebratory party, the STV interview and the failure to recant are to my mind more indicative of a belief in the truth of the statements uttered than the reverse. The contention for the pursuers was rather that these incidents showed a "prejudice" against the pursuers. Thus it was said that in the Gleneagles speech the President had formed a view as to the outcome of the disciplinary proceedings and was thus pre-judging the matter. The STV interview was said to involve a pre-judging of the outcome of any appeal.
[72] It appears to me that, at best for the pursuers, these averments might give the inference that the President was ab ante persuaded that the pursuers were guilty of serious professional misconduct and on that account was ill-disposed towards them. However, such ill-will or bias, or prejudice against the pursuers does not constitute malice in the context of the law of defamation. One who believes another to have been guilty of misconduct will sometimes have no love of that other and be in a popular sense ill-disposed, prejudiced or hostile to that person. However, those sentiments do not constitute malice in the technical sense, and I refer again to the passages from the speech of Lord Diplock in Horrocks which I have already quoted. What is clearly not averred or implied by the pursuers' averments (nor indeed suggested in argument) is that the President had some ulterior or collateral motive or personal spite, other than the interests of the Society, constituting the dominant motive for his utterances.
[73] Accordingly I have come to the conclusion that the pleadings for the pursuers do not contain any relevant averments of malice on the part of the President.
Bad Faith
[74] Paragraph 11A of Schedule 1 to the Solicitors (Scotland) Act 1980, as inserted by the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990, Schedule 8, paragraph 29(16), provides as follows:-
"Neither the Society nor any of its officers or servants shall be liable in damages for anything done or omitted in the discharge or purported discharge of its functions unless the act or omission is shown to have been in bad faith".
It was not disputed by the pursuers that when giving the Press conference the President was acting in his capacity as one of the officers of the Society in the discharge, or purported discharge of its functions, and that it was therefore necessary for them to aver and prove bad faith on the part of the President. Although the only express reference to bad faith to be found in the pursuers' pleadings is in Article 3 of Condescendence (Closed Record 18D, in relation to the first two linked statements by the President) the averments relied upon by the pursuers as demonstrating malice were simply relied upon additionally as demonstrating bad faith.
[75] There was some discussion as to whether, in respect of statements made, the provisions of paragraph 11A added anything to the common law position where the statement was made on an occasion of qualified privilege. Counsel for the President and the Society submitted that bad faith involved a higher test than malice in that the former always connoted dishonesty. Reliance was placed by counsel on the passage in the judgment of Megaw, L.J. in Cannock Chase District Council v Kelly [1978] 1 All.E.R.152, 156D-E in which he said:-
"I would stress, for it seems to me that an unfortunate tendency has developed of looseness of language in this respect, that bad faith or, as it is sometimes put, 'lack of good faith', means dishonesty; not necessarily for a financial motive, but still dishonesty. It always involves a grave charge. It must not be treated as a synonym for an honest, though mistaken, taking into consideration of a factor which is in law irrelevant".
[76] Counsel for the Society elaborated the matter thus: malice was concerned with motive, whereas bad faith was always concerned with the state of knowledge of the person concerned. The two might overlap, where the maker of the statement knew of its falsity. Malice, but not bad faith, would be present if the maker of the statement believed it to be true but uttered the statement for an improper, ulterior motive of personal spite or advantage.
[77] Since I have already come to the view that the pursuers have not made relevant averments of malice on the part of the President, it is not strictly necessary for me to decide whether bad faith has the narrower ambit contended for by counsel for the President and the Society. On either view it does not appear to me that the pursuers have made relevant averments of bad faith on the part of the President. However, for completeness I would say that I am not presently persuaded that the misuse of information believed to be true for a purpose known by the user of the information to be improper could not constitute bad faith. In ordinary parlance one would tend, I think, to describe such actings as not being in good faith. While the content of the statement may be believed to be true and accurate, the making of the statement may be pursued for reasons known to be improper by the maker who may thus be said not to be making any honest use of the occasion. As counsel for the President recognised, the context in which Megaw L.J. pronounced the dictum invoked by counsel was very different from the present context. Accordingly, at least in the context of alleged defamatory statements, I am not persuaded that the practical effect of the enactment differs from the position under the ordinary law. It may well be that, in contrast to statements uttered, in relation to actions taken or omitted the statutory provision may be of importance.
Qualified Privilege/Bad Faith - the Society
[78] As was indicated earlier in this Opinion, it was accepted by the pursuers that their case against the Society was based solely on the Society's vicarious liability for the statements made by the President to which exception has been taken by the pursuers.
[79] If, as I have held, there are no relevant averments of malice or bad faith on the part of the President it follows in my view that there is no defamatory act on the part of the President giving rise to liability by him to which the Society's vicarious responsibility may attach.
[80] However, in the course of the argument advanced for the pursuers there appeared to be suggestions that, while they might be confined to the terms of the statements made by the President, for the purposes of establishing malice or bad faith there could be deployed averments of alleged malice or prejudice on the part of the Society stemming from the averred state of knowledge of other employees, office bearers or Members of the Council of the Society. Thus, at one point, it was suggested that the averment at 16D that:
"On or about March 1994 one Douglas Mill, Solicitor, then a Council Member and presently the Secretary of the Law Society announced to the attendees (sic) at a Law Society of Scotland Post Qualifying Legal Education Course in Glasgow that the first pursuer would shortly be in jail for legal aid fraud"
was habile to show malice on the part of the Society which could consequently affect the bona fides of the President.
[81] I leave aside the obvious but important comment that nothing is said in the pleadings about the capacity in which Mr Mill was alleged to have attended such a conference or the circumstances in which the comment is said to have been made. (For completeness, it may be said that the second defenders aver that they have no record of Mr Mill having attended such a Conference in March 1994 as a convenor or as a speaker, and the making of such a statement by Mr Mill is not admitted). In my opinion the approach contended for - more colourfully described in argument as "mix 'n match" - is not legitimate. It is counter to the principle already discussed that malice must be found in the person of the utterer, and it appears to me to be inconsistent with the ordinary principles of vicarious responsibility, which require that there should be a wrong committed by the inferior for whom the superior is to be held responsible.
Want of probable cause
[82] A further ground whereon it was submitted by counsel for the President that the action, in so far as directed against the President, was irrelevant was the omission of any averment of lack of probable cause. Within the pursuers' pleadings in the Closed Record at 19A-B there is an essentially passing reference to "without probable cause" and in his argument, as best I understood it, counsel for the second pursuer purported to deal with this issue by a simple assertion that such an averment was sufficient. He did not really address the question whether such an averment was necessary in the first place.
[83] Counsel for the President relied on Notman v Commercial Bank of Scotland 1938 S.C.522 and also Fraser v Mirza 1992 S.L.T.740. He submitted that while proof of want of probable cause was not normally requisite in an action of defamation it was required in an action directed against public officers for words spoken or written or acts done in the discharge of their public duties. The President, he submitted, was a "public official" since he held office pursuant to the provisions of the Solicitors (Scotland) Act 1980. A minister of religion might be a public official for this purpose (Murray v Wylie 1916 S.C.356). The existence of the Tribunal's decision gave him probable cause for saying what he did say.
[84] Although in view of what I have already concluded a decision on this point is not necessary for my disposal of the action, it is appropriate that I also give brief expression to my views should the case proceed to a further instance. Notman was a decision of a bench of seven judges. In delivering the Opinion of the Court the Lord Justice Clerk (531) identified three classes of case wherein want of probable cause required to be put in issue, viz (i) actions for abuse of process, (ii) actions for malicious prosecution or denunciation to the appropriate authority, and (iii) "actions directed against public officers for words spoken or written or acts done in the discharge of their public duties". It was to the last category that Mr Dunlop sought to assign the present case, the contention being that the President was a public officer and giving the Press conference was part of his public duties.
[85] The Opinion of the Court in Notman does not elaborate on the scope of the third category. Of the prior authorities referred to in regard to that category, Beaton v Ivory (1887) 14R 1052 concerned instructions issued by the defending sheriff in the exercise of his then public responsibility for maintaining the peace within his territorial jurisdiction. Urquhart v Dick (1865) 3M 932 was an action brought against a procurator fiscal who, in that capacity, had obtained and enforced a warrant for the apprehension of the pursuer on charges of concealment of pregnancy and infanticide from which he subsequently departed. In charging the jury in that case the trial judge (Kinloch) instructed that both malice and want of probable cause required to be proved.
[86] These cases indicate to me that the third category to which the Court in Notman referred is relatively restricted, namely to public officials such as a procurator fiscal carrying out their essential duties. For the rest, the Opinion and decision in Notman is to the effect that want of probable cause is not an appropriate requirement in an action of defamation in which qualified privilege is pled. In the circumstances of Notman the fact that the defenders had been called upon by a Minister of the Crown, following questions in the House of Commons, to provide information did not entitle the defenders to any protection going beyond the proof of malice.
[87] I am not persuaded by Mr Dunlop's submissions on this branch of his argument. It appears to me to be understandable that where the bringing of court proceedings, or the making of a denunciation to the appropriate authorities, or the taking of measures such as the instruction of steps in the enforcement of the system of criminal justice are concerned, there should be the additional protection of the need to prove lack of probable cause for the taking of those steps. The protection so given would plainly have to encompass words uttered as part of the giving of those instructions. But it does not appear to me that the actions of the President in giving a Press conference are beyond the protection of qualified privilege. The actual act of reporting the circumstances to the Crown Office might possibly come within the second category identified by the Lord Justice Clerk in Notman. But the giving of the Press conference, however well intentioned and conceived as being the function of the President of the Law Society does not, to my mind, come within the concept of a public official carrying out his public duties in the sense conceived in the third branch of the categories in Notman.
[88] I therefore reject this branch of the argument advanced by counsel for the President.
Competency of the action
[89] Counsel for all of the defenders submitted that the action was incompetent in the respect that it seeks a joint and several decree against all of the defenders whereas it is evident that the pursuers allege different acts of defamation taking place on different occasions. The President and the Society were distinct from the Members. The President was not a member of the Tribunal and had no control over its proceedings.
[90] In support of the proposition that it is not competent to seek a joint and several decree against two or more defenders in respect of separate defamatory statements counsel for the defenders relied on Barr v Neilsons (1868) 6M 651; Hook v McCallum (1905) 7F 528 and Turnbull v Frame 1966 S.L.T.24.
[91] Barr v Neilsons was an action of defamation brought by a domestic employee against a married couple, her employers, which was founded on two slanderous statements by the wife to the effect that the pursuer was a thief and a separate slanderous statement by the husband in preferring a charge of theft against the pursuer to the police. The action sought a joint and several decree. The First Division found the action to be incompetent on that ground. Having held that a husband is not responsible for the delicts of a wife, the matter was put by the Lord President thus:-
"Therefore we return to consider the competency of this action on the assumption that each defender is answerable for his or her own wrong, just to the same effect as if they were not connected. In these circumstances is this a competent action? I think it is not. In the first place I think it is out of the question to hold that these two parties can be made conjunctly and severally liable for two disconnected wrongs. The question then comes to be are there any other words in the conclusions of the summons to enable us to deal with the case? There is an alternative conclusion that the defender shall be found severally liable, - that is, that each of them be found liable in £250. That will not do, for £250 is the sum claimed for all the three slanders. It is the value of the entire loss sustained in consequence of all the three wrongs. It is clear that it would be just as reasonable to bring an action against two persons who had assaulted the pursuer, - the one in Edinburgh in 1866 and the other in Glasgow in 1867, - and claim a slump sum of damages from the two".
[92] The decision in Barr v Neilsons was followed in the case of Hook, in which the facts were of a broadly similar nature. The action was brought against a husband and wife, the employers of the pursuer, respecting separate defamatory statements of dishonesty by the wife and subsequently a similar allegation by the husband. Although one may detect in the opinion of Lord Kincairney possible reservations concerning Barr v Neilsons, that case was regarded as authoritative. In Grunwald v Hughes 1965 S.L.T.209 the question at issue was the competency of seeking joint and several liability for separate wrongful acts or omissions which together had produced a single result, namely a fire destructive of the pursuer's property. In answering that issue affirmatively, reference was made by the Court without disapproval to the decision in Barr v Neilsons. In Turnbull v Frame, to which I shall return, the Lord Ordinary (Fraser) followed Barr v Neilsons.
[93] In responding to this aspect of the argument, counsel for the second pursuer contended first that this was a case of repeated slander and he referred to the opening sentence of para.35.21 of Gloag & Henderson, where it is said that the "person who originates and the person who repeats a defamatory statement are equally liable in damages". While it is clear that the original defamer and a person who repeats the defamatory statement may each be liable in damages, it being not a defence that the latter was merely repeating what had been said by the former, that is, to my mind, a different proposition to saying that each is responsible for the other's slander and I do not read the passage to which Mr Mayer referred as supporting joint and several liability. Indeed, if one troubles to read to the end of the paragraph it is clear that the opening sentence does not have the meaning for which I understood counsel to contend.
[94] Counsel for the second pursuer, in a contention also adopted also by Mr Thomson, referred to the Outer House decision in Yoker Housing Association Limited v McGurn Logan Duncan & Opfer & Another 1998 S.L.T.1334 as authority for the competency of seeking joint and several liability in the present case.
[95] In Yoker the employers in separate contracts with architects and engineers both relating to the rehabilitation of a tenement property sued the architects alone for certain alleged defects and by a separate conclusion sought joint and several liability against both the architect and the engineers in respect of other defects in the works. As I understand the report of the proceedings, the issue in that case was not related to the competency of seeking joint and several liability in respect of actions or omissions alleged to be separate wrongs but, instead, to the competency of combining in one action the joint and several conclusion against both the architects and the engineers on the one hand with a separate conclusion directed solely against the architects on the other hand, each conclusion being raised on different grounds of liability. Although Barr v Neilsons had been cited to the Lord Ordinary he understandably described it as of little assistance since it was concerned with a very different question from that before him. It follows conversely that Yoker is of no real assistance in the issue arising in the present case. Likewise, Miller Peel Hughes Rutherford & Co v J H Forrester Limited (1897) 5 S.L.T.71, to which Mr Thomson referred, is concerned with the propriety of combining in one action different conclusions each directed against a different defender. It is not at all concerned with the issue of joint and several liability for separate wrongs.
[96] When this chapter of the argument was initially raised by Mr Dunlop I did express a wonder whether the different alleged defamatory statements might not be seen as contributing to a single common result, namely the loss of reputation, and that cases relating to the pollution of watercourses might provide a useful analogy. The argument for the pursuer sought to develop this possible approach by submitting that one was concerned with only one wrong, namely a loss of reputation. Mr Thomson also referred in his typescript to such a pollution case, namely Duke of Buccleuch v Alexander Cowan Ltd (1864 2 M 657. It will be noted however that that case preceded Barr v Neilsons and was concerned with an action of interdict by riparian proprietors on the same watercourse. It may also be noted that Barr v Neilsons was not disapproved in Grunwald v Hughes. However, more importantly, the initial thoughts which occurred to me and to which I have just referred were in fact anticipated in the argument and decision in Turnbull v Frame. That litigation concerned defamatory statements made respectively on separate occasions by a chartered accountant and his wife to the effect that the pursuer - also a chartered accountant and a former partner of the defending chartered accountant - had misappropriated money from the partnership. A single conclusion seeking to hold both defenders jointly and severally liable was advanced. In its factual circumstances and in the context of the question of the competency of seeking a joint and several decree for separate slanders by separate defenders it is indistinguishable from the present case. It was argued on behalf of the pursuer in Turnbull v Frame that each separate and wrongful statement contributed to one common result, namely loss of reputation, and could therefore properly form the basis of joint and several liability. It was also argued that the rule against cumulation of defenders in a single joint and several conclusion was essentially a technical rule and that it created a barrier in the way of a pursuer's obtaining justice in a case where he could not quantify the damage caused by each separate slander. Reference was made, by way of claimed analogy, to the case of the pollution of a watercourse, in particular Fleming v Gemmill 1908 S.C.340. However the Lord Ordinary (Fraser) considered the conclusion for joint and several liability to be incompetent. He regarded the case as indistinguishable from Barr v Neilsons, by which he was of course bound. He stated - "I ... do not think that it would be open to me to do otherwise than to follow Barr v Neilsons even if I had been persuaded that the decision was erroneous. But I am respectfully of the opinion that the decision is not open to such criticism. If A slanders the pursuer on one occasion when few persons are present then little damage is done to the pursuer's feelings or reputation, and if B utters a similar slander on a different occasion to a larger assembly, thereby causing great damage to the pursuer's reputation and feelings, I think it would be clearly inequitable that A and B should be jointly and severally liable for the combined results of the separate slanders. Yet that would be the effect of acceding to the pursuer's argument on this point".
[97] Counsel for the Society sought to illustrate the inequity of holding two or more defenders jointly and severally liable for slanders spoken on different occasions by direct reference to the claims advanced in the present litigation. Thus at Closed Record 53D certain consequences are sought to be attributed to the Tribunal's Press release. The President had no control over the issue of that Press release and it would be inequitable that he bear the responsibilities of that. Conversely, counsel for the Members pointed to the averments at 57D wherein the pursuers appear to advance a claim based upon the second defender's failure to agree not to object to the return of the pursuers' practising certificate pending their appeal as determination by the Court of Session.
[98] I am conscious that practical difficulties may arise in distinguishing and attributing responsibility for particular losses flowing from the making of separate defamatory statements. Similar problems may however also arise in terms of the attribution of responsibility for particular losses in cases of corporal injury where, following successive but separate assaults or wrongful acts, the separate physical injuries resulting therefrom may yet have possibly overlapping economic or financial consequences in terms of the victim's ability to earn his livelihood. But that is not seen as a basis for treating those who committed the separate assaults or wrongful acts as jointly and severally responsible for the collective consequences. Likewise successive, but otherwise unconnected, events causing damage to a ship may each be said to have damaged the ship and inhibited the ship's earning capacity but joint and several liability would not arise. As was put by Lord McLaren in a passage to which my attention was drawn by counsel for the Society, namely Ellerman Lines Limited v Clyde Navigation Trustees 1909 S.C.690, 693:
"If, for example, it could be shewn in either of the cases that the pursuer had sustained damage - I will suppose at two different times, say in the morning of the day and again in the afternoon, and when only one defender's vessel was present - you could not possibly have one action against both defenders because that would be a case of unconnected wrongs".
In these circumstances I find myself in unison with the views expressed by Lord Fraser in Turnbull v Frame and I therefore conclude that the defenders' plea to the competency of this action must also be upheld.
Relevancy of the pursuers' averments of loss
[99] Given the conclusions which I have reached on the competency and the relevancy of the merits of the pursuers' claims, the question of the relevancy of the averments of loss does not strictly arise. However, lest the case proceed further, it is appropriate that I record briefly the principal submissions made and my views upon them. In doing so I shall endeavour to group together the respective criticisms under three main heads.
[100] The first head of criticism is that, on the pursuers' own averments, they pled guilty, before the Tribunal, to professional misconduct as a result of which their names were struck from the roll of solicitors. Whether the Tribunal's decision to strike the pursuers from the roll was justified or not, the consequences of that striking off are not on any view recoverable in the present action. In formulating their claim in the present action however the pursuers, it is said, do not distinguish between the consequences of the striking off and the consequences of the alleged defamatory statements. Consequently the averments of patrimonial loss ought to be excluded.
[101] I consider that in principle the point taken is plainly sound. Mr Thomson in his address to the Court did not say anything other than to adopt that which had been said by counsel for the second pursuer. In relation to this particular point, Mr Mayer submitted, as I attentively noted him, that "the two acts - (i) striking off and (ii) the defamatory remarks, when taken together, ruined the pursuers, and damages arise from all foreseeable loss therefor". I did not find that submission, unvouched by any authority, to be helpful or acceptable. In subsequent discussion it was evident that counsel for the second pursuer was reluctant to face up to any need to distinguish between the consequences of the striking off and the alleged defamatory statements.
[102] Some of the losses claimed by the pursuers plainly follow simply from the consequences of their being struck off. Thus the pursuers make a claim for the expenses of employing accountants to prepare partnership accounts to the date of dissolution and the expenses of trying to market the firm. The dissolution is also said to have led to the premature termination of contracts of hire with penalty consequences. Those averments (CR 55C FF) would clearly fall to be deleted as being the evident consequences of the dissolution of the partnership and not the alleged defamation.
[103] Leaving aside that particular example, there is yet detectable in the averments of loss presented by the pursuers the gravamen of a complaint to the effect that, if had they simply been struck off, the partnership's goodwill could yet have been sold for something - which they aver to be £650,000 - but the alleged defamatory statements prevented such a realisation of that goodwill (cf Closed Record 56B). If that contention were capable of proof (as to which I expressed no view) it might, subject to important issues of title to sue, be an appropriate claim and if that were a proper interpretation of the claim, I would not have excluded the averments on this particular ground.
[104] The question of title to sue is however inherent in the second broad ground of attack which related not only to the averments of loss suffered by the partnership - a separate legal personality - but also to losses said to have been suffered by two companies incorporated under the Companies Acts, namely Precognition Services Limited and Computerised Law Offices Limited. Each of the pursuers is averred to have held 33% of the shares in the former; only the first pursuer is averred to have had an interest - as a 50% shareholder - in the latter.
[105] In this connection I was referred by counsel for the defenders to Vaughan v Greater Glasgow Passenger Transport Executive 1984 S.C.32 and Fullemann v McInnes Executors 1993 S.L.T.259. No other authorities on this aspect of matters were cited by counsel for the second pursuer or by Mr Thomson.
[106] In the former case a plumber who carried on business in partnership with another plumber but who had been disabled by a physical injury from carrying on his work sought compensation for loss of earnings in terms of the drop in the amount of his agreed share of the profits of the partnership. The claim, accepted as relevant, was however a limited claim whose limitations are indicated by the later case of Fullemann. At points in his submissions Mr Mayer suggested that all that was being sought was "loss of earnings" but that does not sit happily with the averments. It is abundantly clear that, respecting the firm, the claim is for a loss of the residual capital value of the assets of the firm, particularly the goodwill, whose demise was brought about by the striking off of the pursuers. No question of deprivation of earning capacity arises. Further, the goodwill of the partnership would be a capital asset of the firm - not the pursuers - to be available for the benefit of the firm's creditors and the other partners of the firm. However, the pursuers' claim envisages that they, as only some of the partners, should directly receive the whole value of that capital asset.
[107] Similar and additional difficulties attend the averments relating to the two limited liability companies referred to in the pleadings.
[108] In relation to Precognition Services Limited it is averred that the pursuers were "directors of said company and earned about (£30,000) per year between them from that business". The averments for the pursuers then proceed -
"Newspaper articles soon made it clear that the Law Society had power to discipline anyone who used that company's services. Its business dried up almost instantly thereafter".
It accordingly appears that the pursuers attribute the drying up of the business to newspaper articles advising solicitors that the Society had power to discipline solicitors who used the company's services, rather than the alleged defamatory statements. That apart, it is not made evident in the averments that there was any contractual relationship between the pursuers and the company, performance of which was prevented by the alleged defamatory statements. It is not said, for example, that solely by reason of the alleged defamation the pursuers were prevented from continuing office as directors or from receiving director's fees or remuneration from their shareholdings. In these circumstances it does not appear to me that the pursuers have put forward in averment proper, discrete claims for loss of earnings by each of them as opposed to a corporate loss suffered by the company and in that state of the pleadings I would have regarded it appropriate to exclude these averments from probation.
[109] The position regarding Computerised Law Offices Limited is really no better. It is not averred that there was any arrangement whereby Mr Thomson provided services for remuneration the continuing provision of which was prevented by the alleged wrong - or indeed that he ever received any remuneration from the company. The pleader, having commended in the pleadings the software which the company was intending to sell, then avers that by April 1995 the company was ready to trade. The averments thereafter proceed:-
"Mr Thomson thereby stood to earn substantially from exploitation of Computerised Law Offices Limited Services (sic). That company was also shunned by clients and potential clients following the defender's announcements. It too had to be dissolved with no prospect of a price".
[110] In passing it may be noted that here too the averments do not address in any way the consequences of the striking off as opposed to the alleged additional defamatory utterances. But in my view the averment does not identify with sufficient specification a relevant personal loss of earnings consequent upon the alleged personal wrong which may properly be identified as distinguishable from the corporate loss which might be reflected ultimately in the first named pursuer's patrimony as a shareholder. It appears to be assumed that one should overlook the important distinction between the juristic autonomy of the company and the personal interests of the shareholders or directors.
[111] The third principal issue raised in the discussion of the averments of loss concerns the averments set out at p.57D of the Closed Record which I quote, with the amendment effected by the Minute of Amendment, as follows:-
"Following the said unjudicial and defamatory statements of all of the defenders the pursuers were wrongly denied the opportunity to continue in business until the determination of their appeal. The second defenders ought to have agreed not to object to the return of the pursuers' practising certificates pending the pursuers' appeal being determined by the Court of Session, which course of action would have been the usual and proper course where no personal dishonesty was involved. Instead, during that period the second defenders' President, namely the first defender, on 7 April 1995 appeared on Scottish Television and said that the pursuers would never practice law in Scotland again. In particular, he said with relish that 'He (by whom he meant Mr Thomson) and the law are finished'.
In that climate it was obvious to the pursuers that they need not appeal or apply for their practising certificates to be restored pending appeal as such an application would be futile. Without such certificates the pursuers could not operate their law firm and had no credibility with the clients of their other businesses".
The first observation which may be made is that this effectively asserts a separate wrong, not arising from any defamatory statement (and for which on any view the Members could not conceivably be liable). But, more fundamentally, these averments are in my opinion misconceived. The question whether the pursuers should be permitted to continue to practice pending their appeal to the Court of Session was ultimately a matter for the Court of Session. The fact that the pursuers chose not to exercise their right to make any application for interim suspension of their disqualification from practice is entirely a matter for them and plainly gives no cause for seeking liability on this account against any of the defenders. The averments on this topic would fall to be excluded from probation.
Proof or jury trial
[112] On this now wholly hypothetical question all that I think I need say is that in view of, among other things, the complications discussed in this Opinion I would regard this case as wholly unsuitable for jury trial.
Result
[113] For the reasons which I have elaborated I must dismiss the action by upholding the defenders' pleas to the relevancy and competency of the action, that is to say, pleas 1, 2 and 3 for the first defender; pleas 1, 2 and 3 for the second defenders; and pleas 1 and 2 for the fourth to ninth defenders.