Scottish Court of Session Decisions

[1] In this action of defamation, the pursuer seeks payment of damages by the defender in respect of an alleged defamatory statement made or instigated by the defender. The action went to debate before the Lord Ordinary and, on 2 November 2000, the Lord Ordinary upheld the defender's first plea-in-law and dismissed the action as irrelevant. The pursuer now appeals.

[2] The defender is the Member of Parliament for Glasgow, Govan Constituency. It is alleged that the defamatory statement complained of was made during the parliamentary election campaign in 1997. At that time, allegations of irregularity and illegality were circulating in the constituency, some of which appeared in the press. These allegations, according to the pursuer's argument, constituted a background or an atmosphere in which the averments relating to the defamatory statement should be considered. The essence of the pursuer's case, however, is found in Condescendence 2 in which he avers:

[3] It is clear from these averments, as the pursuer also confirmed to the court, that the defamatory statements of which complaint is made are to be found in the draft affidavit, a copy of which was before the court. The affidavit was, apparently, never actually sworn or signed, so that the document before the court is, properly speaking, a draft affidavit. The document records the name of the deponent, Badar Islam, and gives his age and something about his career. It records that Badar Islam met the pursuer in connection with his proposed candidacy at the election. Badar Islam did decide to stand as a candidate and the document records that the pursuer called on him at his campaign office on a number of occasions. The document records a number of conversations in which the pursuer allegedly expressed resentment towards the defender and an intention to harm him, or at least his electoral prospects. The first passage which is particularly referable to the present action is in the following terms:

[4] It is then stated that Badar Islam was uncertain as to what value to give to statements by Mr. Paton but that about two weeks before the polling date he became aware of a story in the press suggesting irregularities in the electoral registration process in Pollokshields and in particular in the Leven Street area. Badar Islam made a connection between this report and what he had heard from the pursuer. Later, the document states that the pursuer continued to call at the office and to speak on the telephone and continues:

[5] The document then states that the pursuer continued to phone Badar Islam after the election suggesting that a demand should be made for a rerun of the contest. It also mentions subsequent press publications and later contacts with the defender.

[6] A number of submissions on points of relevancy were made to the Lord Ordinary, most of which he notes very briefly. The ground on which the Lord Ordinary dismissed the action was expressed as follows.

[7] In support of the reclaiming motion, the pursuer submitted that the averments were sufficient to establish that the defender was the "architect" of the document which implicated the pursuer in an electoral fraud and a conspiracy. That, together with the allegations of malice on the part of the defender, should have been sufficient to entitle him to go to trial, so that the truth of the allegations could be established. He submitted that the Lord Ordinary had erred in relying on authorities which were of no value in a difficult and complex matter of this kind. The Lord Ordinary had misunderstood the nature of the illegality which was alleged to have occurred in connection with the election. He had also erred in failing to accept that the averments showed that the defender was the author of or responsible for the document.

[8] Mr. Jones, on behalf of the defender, submitted that the Lord Ordinary had reached the correct result. There was no sufficient averment of a defamatory statement implicating the pursuer in electoral fraud. Secondly, Mr. Jones submitted that there were no sufficient averments of publication of the allegedly defamatory statement. He also drew attention to the fact that before the Lord Ordinary he had made a variety of criticisms of the pursuer's pleadings in other respects, which were not dealt with at length in the Lord Ordinary's opinion, and that these were criticisms which would require to be dealt with if the action were allowed to proceed.

[9] This is not a case in which any material question of general law arises. The only significant authority to which reference was made was Russel v. Stubbs Ltd. 1913 (H.L.) 14, and the only point taken from that case was that an innuendo requires to be clearly and specifically averred. In the course of his submissions, the pursuer accepted that he was not relying upon any allegedly defamatory statement, apart from what was contained in the draft affidavit. He further accepted that there was no direct statement in the affidavit that he, the pursuer, had been guilty of electoral fraud in any form. His submission was that there was an innuendo that he had been so involved. His position was most clearly expressed when he said that there was a clear innuendo, in his opinion, in that the linking of his name with the affair of the illegal registrations caused him to be defamed: the very fact that he was mentioned in connection with the alleged illegalities, in the context of the atmosphere in the constituency at the time and of ongoing police allegations into electoral fraud, carried the implication that he was involved in the illegality and fraud.

[10] In our opinion, that suggested innuendo bears no possible relationship to the contents of the affidavit. The affidavit does not anywhere state or, in our view, imply that the pursuer was involved in making unlawful late regulation of voters or, indeed, in electoral fraud or illegality of any kind. What it says is that the pursuer tried to persuade Badar Islam to draw attention to alleged illegalities or irregularities committed by the defender. There is, on any fair reading of the affidavit, therefore, no basis for the innuendo either in the form averred or in the form in which it was expressed by the pursuer in argument. It follows that the pursuer has failed to aver any defamatory statement made by the defender relating to him.

[11] There was also some discussion of the question whether there were sufficient averments that the defender had published any allegedly defamatory statements. It is not necessary for us to explore this issue in any depth. We should, however, say that the pursuer explained that what he intended to aver was that the contents of the affidavit had been published in that the defender had communicated them to the journalist mentioned in the pleadings. We would be prepared to accept that the pursuer's pleadings might possibly be interpreted in that sense and, had it been necessary to do so, we would have been prepared to allow the pursuer an opportunity to amend in order to make his averments specific enough to go to proof.

[12] As regards the other points which Mr. Jones argued before the Lord Ordinary, the Lord Ordinary's opinion contains a brief note of what the points are. The pursuer said that he would be prepared to amend his pleadings to meet these criticisms and again, had it been necessary to do so, an opportunity might have been allowed for the pursuer to propose amendments to meet any detailed criticism.

[13] In the whole circumstances, however, the reclaiming motion must be refused.