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Cite as: [2003] Scotcs 189
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Harwood, Re Petition for an order [2003] Scotcs 189 (04 July 2003)
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OUTER HOUSE, COURT OF SESSION |
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P1179/02
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OPINION OF J. GORDON REID, Q.C. Sitting as a Temporary Judge in Petition of IAN HARWOOD Petitioner; for an order in terms of Section 1 of the Administration of Justice (Scotland) Act 1972
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Petitioner: Wade; MacRoberts
Respondents: Buchanan; Balfour and Manson (1st Respondent)
McLean; Tods Murray, W.S. (2nd to 15th Respondents)
4 July 2003
Introduction
[1] The petitioner seeks an order under section 1 of the Administration (Scotland) Act 1972 for recovery of a letter or letters said to have been written by the first respondent (Douglas Jackson) to members of Glasgow Golf Club, including Council Members of that Club. The petitioner, whose application for membership of the Club has been rejected by the Council, alleges that the letter or letters contain defamatory statements about him. He wishes to recover the offending correspondence and sue Mr Jackson for damages.Procedural Background
[2] Following the presentation of the Petition, Answers were lodged on behalf of Mr Jackson, who is the Vice Captain of the Club, and on behalf of the second to fifteenth respondents who are the Club's Council Members. After adjustment, a Procedure Roll discussion rather than a Hearing (which the petitioner offered and which would be the more common form of disposal of such petition proceedings) was fixed. When the case called on the morning of 11 June 2003, Mrs Wade, for the petitioner, presented a short Minute of Amendment. The purpose of the Minute of Amendment was to deal with certain criticisms of the petitioner's pleadings intimated in Notes of Argument. The contents of the Minute had been intimated by Mrs Wade to her opponents on 10 June. The main, but not the only, effect of the Minute was to narrow the scope of the order being sought. The respondents did not object to the Minute of Amendment but wished an opportunity to lodge answers within twenty one days, and the expenses of the diet of Procedure Roll which would have to be discharged. Neither counsel for the respondents could explain why it was necessary for them to lodge Answers and thus alter their own pleadings when the purpose of this diet of Procedure Roll was to consider only the petitioner's pleadings. I therefore refused to allow Answers. Mrs Wade then moved to allow the Petition to be amended in terms of her Minute of Amendment. Counsel for the respondents now no longer sought the discharge of the diet of Procedure Roll. Mr McLean, for the Council members, intimated that the points raised by him in his Note of Argument had been dealt with adequately by the Minute of Amendment and he sought a Hearing at which the question whether I should exercise my discretion in favour of the petitioner should be considered. He envisaged lodging affidavits in advance of such a Hearing. However, it appeared to me from his submissions that any such affidavits would contain nothing more than a statement as to who were and are Council members and whether they hold any of the documents sought to be recovered. He and Mr Buchanan were unable to identify any statute, Rule of Court or practice authorising or requiring such affidavits. Mr Buchanan did not seek to discharge the diet of Procedure Roll but wished to insist in his attack on the petitioner's pleadings. It was said that Mr Jackson might take a different view in the light of the amendment but what that different view might be was not disclosed. There was also some discussion as to whether, should I reject the attack on the petitioner's pleadings, an order in terms of section 1 of the 1972 Act could be granted or whether a further hearing would be required. It seemed sensible to attempt to deal with all issues at the same diet. There was nothing in the submissions of either counsel for the respondents indicating that the respondents would or might be thereby prejudiced if I did so. I therefore allowed the petition to be amended, appointed a Hearing to take place along with the Procedure Roll and directed that both should commence at 2pm, which they did. It seemed to me that this was entirely consistent with the flexible nature of petition procedure and the summary nature of applications under section 1 of the 1972 Act. It had the advantage of dealing with all issues together; it avoided the need for a further hearing; and reduced costs. Moreover, I could detect no prejudice to any party by such a course of procedure.The petitioner accordingly now seeks and order for recovery of:-
"All letters held on (sic sc by) or on behalf of the respondents or any of them written or purporting to be written by the first respondent (containing information of and concerning the petitioner and) pertaining to the petitioner's (his) application for membership of Glasgow Golf Club and containing the allegation that he misappropriated or attempted to misappropriate a sum in the region of £500,000 immediately prior to the appointments of Receivers to Topek Roofing Ltd and failing principals, all drafts, copies, duplicates or any computer software and hardware (including floppy disks, hard disks and other means of storing information) in which's stored a copy of the above property."
Factual Background
[3] The petitioner avers that he applied for membership of Glasgow Golf Club in 2001. His application came before the Council members and was refused by them. No reasons were given. He made enquiries. He was advised that Mr Jackson had written to a number of existing members, including Council members, stating directly or indirectly that the petitioner was not a fit and proper person to become a member of Glasgow Golf Club because he had either misappropriated or attempted to misappropriate about £500,000 prior to the appointment of Receivers to Topek Roofing Limited (of whom Mr Jackson had been one for a short period) to the detriment of the creditors of that company or words to that effect. The petitioner believed that the letter was circulated to the Council Members. He further avers that the statements contained in the letter are false and defamatory of him both directly and by innuendo, and that the allegation of misappropriation of money in defraud of creditors was an allegation of dishonesty which adversely affected his reputation and was made with malice. The petition then narrates that the petitioner wishes to raise an action for damages against Mr Jackson, that he has been advised by his solicitor and counsel that he has reasonable prospects of success, and that in order to make his averments more specific, the letter written by Mr Jackson requires to be obtained. It is also said that the letter or copies remain in the hands of the second to fifteenth respondents. [4] From the terms of the Answers lodged on behalf of Mr Jackson and those lodged on behalf of the Council, it is reasonably plain that there is no dispute that the petitioner's application was considered and rejected by the Council. It is pointed out that several of the respondents were not members of the Council when the decision was made. The Answers for the Council raise the question of qualified privilege and "fishing", but Mr McLean did not press these points in his submissions.Submissions
[5] On behalf of Mr Jackson, Mr Buchanan advanced three main propositions. First, the petitioner must aver an intelligible prima facie case. Second, at the stage of presenting the petition, the petitioner must be in possession of specific matters of fact relative to Mr Jackson which would allow the petitioner to make a prima facie case. Third, it must be shown by the petitioner that he has the intention of making that prima facie case. Mr Buchanan accepted that one should not apply the same standard of pleadings to the Petition as would be applied to an actual defamation action. However, that is exactly what he proceeded to do and subjected the Petition to the same sort of scrutiny as might be expected in an ordinary action where the usual test of relevancy fell to be applied rather than considering whether the petitioner had averred a prima facie case. He cited Pearson v EIS 1997 S.C. 245 at 251I, 252D-G Friel v Chief Constable of Strathclyde 1981 S.C. 1, Dominion Technology Ltd v Gardner Cryogenics Ltd (No 1) 1993 S.L.T. 828 in support of these propositions. He submitted that as the petitioner had averred that he had been defamed directly or by innuendo in Article 3 of the Statement of Facts the weaker alternative rule applied. As innuendo was averred, the language used and the imputation flowing therefrom must be averred. He cited Cooper on Defamation page 102, 108-9, Norrie on Defamation and Related Actions page 12, McCann v Scottish Media Newspapers Ltd 2000 SLT 256, James v Baird 1916 S.C. (H.L.) 158 Murray v Wyllie 1916 S.C. 256, and Finnie v Logie 21D 82. Alternatively, the names and addresses of persons who formed an impression about the language employed had to be averred (Boulting v Elias 1990 S.L.T. 596 at 600). He submitted that what was missing from the petition was a positive averment that the letter was written, that it was circulated, the language employed upon which the innuendo was based, and the intention to raise proceedings. The petitioner had not averred that proceedings were likely to be brought, averring merely that he wished to raise an action against Mr Jackson. There were inconsistencies within the averments warranting the conclusion that the Petition was irrelevant. Finally, he submitted that I should not exercise any discretion I had in favour of the petitioner citing Civil Service Building Society v MacDougall 1988 S.C. 58. He submitted that the petitioner desired not to recover evidence but to make his pleadings more specific. [6] Mr McLean, for the Council members of the Golf Club, expressly declined to adopt Mr Buchanan's submissions and made no challenge to the relevancy of the petition. He invited me to defer making a decision and sought further time to enable him to lodge affidavits. He pointed out that some of the respondents were not members of the Council at the material time and so not present at the meeting which led to the rejection of the petitioner's application. He suggested that if an order were to be granted it should be restricted to attempts to misappropriate. In the course of his submissions he handed up a bundle of documents. These were essentially pro forma letters signed by the second to fifteenth respondents dated between 9 and 16 December 2002 stating that they did not hold the letter or letters referred to in the Petition. They are silent on the question whether such a letter existed or was held by them at one stage or where it might now be. [7] Mrs Wade, for the petitioner, invited me to apply Lord Cullen's test in Dominion Technology and Lord Maxwell's in Friel. A prima facie case had been averred. She also referred to Smith Ptr. 1985 S.L.T. 461. The traditional test of relevancy need not be met. The sting of the libel had been set out with reasonable certainty. She referred to British Data Management plc v Boxer Commercial Removals plc and Anr 1996 3 A.E.R. 707 at 717 C-H, an action to restrain the publication of a threatened libel. The petitioner sought the section 1 order to make his case more precise. Even if the letter has been destroyed the petitioner could still sue. The innuendo is dishonesty and that had been clearly averred. There was no requirement to reach the standard of pleading set out in James. There was no basis for refusing to exercise the statutory discretion in favour of the petitioner.Decision
[8] In an application by petition for an order under section 1 of the 1972 Act for the recovery of documents, the petitioner must be able to show that proceedings are likely be brought and that in relation to such proceedings he has a prima facie, intelligible and stateable case (Pearson at page 250-251). In order to determine whether such a case exists, it is neither necessary nor appropriate to subject the petitioner's pleadings to a detailed examination. The usual tests of relevancy and specification do not apply. The pleadings will be considered to ascertain whether the basic ingredients of an intelligible and stateable case are present. In my opinion, the averments adequately disclose the substance and basis of the case which the petitioner proposes to make (Dominion Technology at 832B-D, quoted with approval in Pearson at page 250C-E, 251 I -252B). Friel does not add anything on this point. Here, I am in doubt that the petitioner has averred a prima facie, intelligible and stateable case. He has averred that a statement has been made about him, asserting that he had, at lowest, attempted to misappropriate company funds to the detriment of creditors or words to that effect. The innuendo of dishonesty is averred. It is also averred that the allegation was made with malice and that it was calculated to lower his reputation in the minds of right thinking members of society. The sting of the libel is expressed with reasonable certainty (see British Data at page 717c-j). What is sought here is, in effect, quite specific, namely a letter written by Mr Jackson relating to the petitioner's application for membership and containing specific allegations. [9] While I accept the first and third propositions advanced by Mr Buchanan, I reject his submissions insofar as they were designed to show that the petitioner had not satisfied these propositions. I am not sure that I fully understood the applicability of his second proposition which appears to be taken from a passage in Pearson at page 252C in connection with proceedings under section 1(1A) of the 1972 Act, to disclose the identity of the author of an allegedly defamatory report. [10] In my opinion, it is inappropriate to apply the weaker alternative rule to pleadings where the ordinary standards of relevancy do not apply. It is not therefore necessary to consider either the cases supporting the rule (Finnie v Logie 1859 21D 825 or Murray v Wyllie 1916 S.C. 356- the modern statement of the rule by Lord Stott in Haigh & Ringrose Ltd v Barrhead Builders Ltd 1981 S.L.T. 157 was not cited to me) or what might be described as technical aspects of pleading in an action of defamation. In any event, it seems to me that it is questionable whether the petitioner needs to aver an innuendo. An allegation of misappropriation of company funds is an unambiguous assertion of dishonesty; any innuendo averred would echo or focus the defamatory words used and would not be required as a matter of relevancy (Cooper at page 102-3; 109). Here, the statements complained of are at least capable of being defamatory in their own terms and if they are not the petitioner has averred what he says they really mean, namely an allegation of dishonesty (Norrie page 12-14). In James, cited by Mr Buchanan, the issue before the House was whether the occasion on which alleged defamatory statements were made in a letter were privileged. It was very doubtful whether the letter in question was defamatory at all. The observations of Lord Kinnear at page 165 simply state that if a pursuer wishes to attach a defamatory meaning to apparently harmless words he must aver the libellous meaning. Here, the petitioner has averred that an allegation of dishonesty has been made. McCann was another case in which the Court considered, as a matter of relevancy, the averments which explained the imputations which the pursuer alleged were made in the statements under consideration. It does not advance the first respondent's argument. Furthermore, Mr Buchanan's argument, based on Boulting, that the petitioner ought to have averred, in this petition, the names and addresses of the persons who formed an impression about the language employed is also unsound because it relies upon the rule of fair notice applied to test the relevancy and specification of a party's pleadings, rather than to test whether a party has averred a prima facie, intelligible and stateable case (see Boulting at page 600F). [11] Having determined that the petitioner has averred a prima facie, intelligible and stateable case, are there any circumstances which would affect the exercise of my discretion so as to prevent him from obtaining the order he seeks? I accept Mrs Wade's argument that it may be inferred from the pleadings that proceedings for damages for defamation are likely to be raised. I reach that conclusion on the basis of all the material placed before me, although I do not attach any weight to the terms of the petitioner's affidavit, required because of the terms of R.C. 64.3. Accordingly, the absence of a formal averment that such proceedings are likely to be brought, which could readily be cured, is of no moment in the circumstances. The petitioner asserts that the documents sought are required to make his averments in his proposed action more specific. The first respondent cited Civil Service Building Society on the question of discretion but that was an ordinary action in which the recovery of documents was sought following a procedure roll discussion. There is nothing in that decision which identifies any factor which would cause me to exercise my discretion against the petitioner. In Smith, the petitioner proposed to raise an action based on medical negligence and sought recovery of hospital records; Lord Wylie, in granting the application under section 1 of the 1972 Act on what he described as a brief statement of facts, observed that in enacting the legislation Parliament was intending to make such records available to pursuers in order to enable them, in such cases, to present the fullest possible averments of fact in a relevant action. He seemed doubtful whether a prima facie case had been made out, but as no special reason had been advanced to persuade him that the application should not be granted, he granted it on restricted terms. Mr McLean invited me to defer granting a final order until he had produced affidavits. However, it appeared that, in substance, all these affidavits would say was that the second to fifteenth respondents did not hold the documents sought. I do not consider that mere assertion by a respondent that he does not hold the documents sought is a good ground for refusing to grant an order under section 1 of the 1972 Act either under the present procedure or in an ordinary action. In the course of proceedings, I asked Mr Buchanan whether Mr Jackson had written a letter of objection in relation to the petitioner's application for membership of the golf club. Surprisingly, notwithstanding that the petition was first presented to the Court last year, Mr Buchanan was unable to provide a straight answer to that simple question. Such an attitude fuels suspicion. Whether such a letter was written and, if so, what its terms were, I cannot say but it seems to me in the interests of justice that the petitioner should be granted the order he seeks. Whether any documents will be produced remains to be seen. No special or cogent reason or exceptional circumstance has been advanced justifying refusal to exercise my discretion in favour of the petitioner who has a prima facie, intelligible and stateable case. If no such letter were written it is somewhat surprising that the petition has been opposed except, perhaps, in relation to expenses. [12] As for the precise terms of the order, I do not consider that there was any substance in the points taken by the respondents. I also do not consider that it matters that some of the respondents were not members of the Council at the material time. The petitioner is entitled to direct his order against the current members of the Council.Result
[13] The respondents' pleas-in-law will be repelled. The substance of the prayer of the petition will be granted as amended insofar as not already dealt with. A Commissioner will be appointed in the usual way. All questions of expenses are meantime reserved.