Scottish Court of Session Decisions

This case in which the pursuers conclude for interdict and a decree ordaining the defender to delete certain matters from Websites, came before me on procedure roll on the pursuers' fourth plea-in-law. Decree de plano was not sought in terms of the plea but, instead, the pursuers craved the Court to delete from probation eight separate averments.

After the pursuers' counsel's submissions the defender was invited to consider his position and after a short adjournment accepted that five of the contested averments could be deleted. These were those at page 11C-D, page 11E-12A, page 26D, 27C and 27E.

The Court was thus required to determine whether the averments challenged at 14B-D, 29C-30C and 37D-E should remain on the Record.

Senior counsel for the pursuers argued that each of these passages of averment were irrelevant. The first because the conduct of the pursuers in the litigation was not a matter for averment. The averment about the defender's consideration that he was being disadvantaged by a regular Court process could have no relevance to the case before the Court which was to determine the veritas of the defender's statements which were put in issue. The defence was essentially veritas. The defender's fifth plea-in-law was "The statements complained of by the pursuers being true, the defender should be assoilzied". In response the defender asserted that he had no option "not to defend this action" but that it should have been raised elsewhere. I accept the submission of counsel that this passage of averment is wholly irrelevant and of no assistance to the Court in determining whether or not the statements made by the defender were true.

The pursuers' criticism of the averments at page 29C-30D was essentially that the whole allegation was wholly unfocused, that no letter or response said to have been incorporated had been produced and that it was unclear what the incident was or what its relevance was to the defence of truth.

In argument the defender seemed to accept that he was at fault in not having produced the letters he said he had incorporated in his defences. He could not explain why it was relevant to invoke Mr Bain's correspondence with the pursuers, a matter of hearsay about what someone had told him. In his address to the Court the defender elaborated somewhat upon the alleged incident but none of his elaboration appears on the Record and accordingly whether or not it could be relevant was not possible to determine. In my opinion the averments as pled are unsuitable for probation and I shall delete them.

The final matter was the pleading at 37D-E. The defender attempted to explain this obviously collateral averment by asserting that the pursuers had failed to take steps to exclude poachers from their land and that this could be inferred from his narrative. In my opinion the averments that the defender has on two occasions seen men with dogs at Whinneyhill and that shots have been heard coming from Whinneyhill after dark adds nothing whatsoever to the case and certainly does not as pled demonstrate anything adverse to the pursuers' conduct of their affairs.

I should only add that a Minute of Amendment was proposed at the bar by the defender to add certain new averments. That amendment was opposed by the pursuers on the ground that it also contained wholly irrelevant matters. With that submission I agreed and in the exercise of my discretion I did not allow the Minute of Amendment to be received or the Record amended in terms thereof.

In the event I sustained the defender's fourth plea-in-law to the extent of excluding the averments specified in the pursuer's Note of Argument from probation. Quoad ultra I allowed a proof before answer.

Since the defence as pled by the defender was of truth and required a proof, the pursuers moved that the defender be ordained to lead at the proof. The defender did not dissent from that proposition and accepted that it would be his task to lead at the proof hereafter to be fixed.