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Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hutchinson v. Clyde And Forth Press Ltd [2006] ScotCS CSOH_184 (01 December 2006)
URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_184.html
Cite as: [2006] ScotCS CSOH_184, [2006] CSOH 184

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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 184

OPINION OF LADY SMITH

in the cause

GRAHAM HUTCHINSON

Pursuer;

against

CLYDE AND FORTH PRESS LIMITED

Defenders:

________________

Pursuer: Henderson, Advocate; Haig-Scott & Co

Defenders: Haldane, Advocate; Dundas & Wilson

13 October 2006

Introduction

[1] The pursuer is a director of a company whose business includes the sale of beds. The defenders own and publish the Ardrossan and Saltcoats Herald, a weekly newspaper. The pursuer has raised an action against the defenders in which he seeks damages in respect of an allegedly defamatory article published in an edition of their newspaper on 2 December 1995. The subject matter of the article was the selling techniques used by the pursuer, particularly those used in the case of sales to the elderly. It was critical of him.

[2] An article to the same effect appeared in the Daily Record prior to that which appeared in the defenders' newspaper. The pursuer has also raised an action for defamation against them. Proof before answer has been allowed in that case and a proof fixed for 30 October 2007.

[3] The present case came before me on Friday 13 October 2006 on the defenders' motion to discharge the diet of procedure roll debate set down for the following week and to sist the action to await the outcome of the pursuer's action against the Daily Record. The pleadings in the case against the Daily Record were not put before me but Mr Henderson did not dispute the defenders' assertion that both actions raised, as their central issue, the question of whether or not the pursuer's selling practices were as set out in the newspaper articles and, accordingly, open to the criticisms voiced in them.

Submissions for the Defenders

[4] For the defenders, Miss Haldane submitted that it was appropriate that the action be sisted to await the outcome of the action against the Daily Record. The same issue was raised in both cases. The defenders accepted that if it was established that the Daily Record had defamed the pursuer then they, the defenders, had also done so. That would leave only quantum to be settled or adjudicated on, if agreement could not be reached. On the other hand, if they were exonerated, it would follow that these defenders would also succeed in being exonerated.

[5] The case against the Daily Record was significantly more advanced. A proof had been fixed. The present case was, on the other hand, at procedure roll stage. Ultimate enquiry was much further off than in the Daily Record case.

Submissions for the Pursuer

[6] For the pursuer, Mr Henderson submitted that the defenders' motion should be refused because he knew of no case in which an action of defamation had been sisted to await the outcome of another similar action. Unless the defenders could point to an absolute rule in their favour, the sist should be refused. The pursuer's only redress against the press was an action of defamation and he should be able to seek that redress as quickly as possible. There was no way of knowing whether people in the area of circulation of the defenders' newspaper had refrained from buying beds because of the article and he was entitled to proceed towards vindication of his reputation there. Although a proof before answer had been allowed in the Daily Record case, a judge might not be available for the case.

[7] He also suggested that the result in the Daily Record case might not be conclusive as those defenders might succeed on a qualified privilege defence which he "thought" that they were founding on. He did not, though, press this matter and the overall impression given remained that it was accepted by the pursuer that, essentially, the Daily Record action would dispose of the question of whether or not the pursuer was defamed by either newspaper. Rather, his central point seemed to be that the pursuer was entitled to full vindication by means of running both actions.

[8] Neither counsel referred to any authority in support of their submissions.

Discussion and Conclusions

[9] I was persuaded that it was appropriate to grant the motion. It appeared that the central issue in this case was also the central issue in the Daily Record case and the defenders accepted that if it was resolved in the pursuer's favour, then they too would be liable for defamation. There would then be no need for that issue to be determined by the court in this case and, as happens in many cases where damages are sought, it was possible that quantum would be agreed thus avoiding any further resort to judicial determination. No clear case was advanced of it being likely that there would be circumstances in which the pursuer would proceed against these defenders if they failed against the Daily Record.

[10] As against the foregoing, in the absence of a sist of the present action, the expense of the procedure roll debate the following week would immediately have been incurred and other preparation expenses would have been liable to ensue, expenses which could prove to have been quite unnecessary once the outcome of the Daily Record litigation was known and which, as in the case of all litigation expenses, would be bound to involve an irrecoverable element even if the defenders were successful in the end of the day.

[11] I bore in mind that I had a discretion in this matter and took the view that looking at the whole facts and circumstances I should exercise it in favour of granting the motion.

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