Scottish Court of Session Decisions

 

Opinion of Lord Macphail

 

Angus Macleod (Pursuer)

against

Newsquest (Sunday Herald) Limited (Defenders)

11^th January 2006

 

This action for defamation was dismissed by Lord Macphail as it was manifest from the language used that the article concerned was in no way an attack upon Mr Macleod; the ordinary reader would have understood that the article had been written for his or her entertainment in a cheerful, irreverent and playful spirit, and had contained elements of fantasy.

 

This is an action of damages for defamation. The pursuer is Mr Angus Macleod, the Scottish Political Editor of The Times and a regular contributor to BBC radio and television. In this action he sues the publishers of The Sunday Herald for £50,000 for alleged defamation in an item in "Alan Taylor's Diary" in the edition of 18 December 2005.

 

The item gave or purported to give an account of a ceremony at which there had been awarded "the prestigious Tartan Bollocks Award, which is given to the Holyrood hack who has made the biggest gaffe of the year." It contained the following passage:

 

"Angus Macleod of the Times who, like Alexander Graham Bell, is justly renowned for his powers of invention, came close with his confident prediction that Jim Wallace would still be leading the LibDems in 2007. Mr Wallace repaid the faith shown in him by promptly announcing his retirement."

 

In his pleadings in the action Mr Macleod complained that the article conveyed to the reader the false impression that he enjoyed a just renown for his powers of invention; that he was a disreputable journalist who made up stories rather than investigated them; that he was not a fit and proper person to be employed by The Times or the BBC; and that he had invented a conversation with Mr Wallace.

 

At a legal debate before Lord Macphail the publishers' counsel submitted that the action should be dismissed because the reasonable reader would have regarded the words complained of as nothing more than an absurd joke. Mr Macleod's counsel argued that the words conveyed the defamatory meanings he attached to them.

 

Summary of Lord Macphail's Opinion

·        Lord Macphail held that an ordinary reasonable reader would not have attached to the words used any of the meanings attributed to them by Mr Macleod. In his Lordship's opinion the reader would have understood that the "Diary" had been written for his or her entertainment in a cheerful, irreverent and playful spirit, and had contained elements of fantasy.

 

·        His Lordship said that it would have been clear to the reader that Mr Macleod was being chaffed or teased by the diarist in a light-hearted or bantering manner for having written a story which could be described as a "gaffe". It was manifest from the language employed that it could in no respect be regarded as an attack upon Mr Macleod. Lord Macphail therefore dismissed the action.

 

 

 

 

 

NOTE

This summary is provided to assist in understanding the Court's decision. It does not form part of the reasons for that decision. The full report of the Court is the only authoritative document.

 

 

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OUTER HOUSE, COURT OF SESSION   [2007] CSOH 04
A16/06	OPINION OF LORD MACPHAIL   in the cause   ANGUS MACLEOD   Pursuer;   against   NEWSQUEST (SUNDAY HERALD) LIMITED   Defenders:     ­­­­­­­­­­­­­­­­­________________

 

 

Pursuer: G. M. Henderson; Haig-Scott & Co., W.S.

Defenders: M. S. Jones, Q.C., Dunlop; Balfour & Manson

 

 

11 January 2007

 

Introduction

[1] This is an action of damages for defamation. The defenders have stated a general plea to the relevancy of the pursuer's averments, and I have now heard counsel in debate on the procedure roll. The defenders argued for dismissal, while the pursuer submitted that the case should be sent to proof before answer.

 

The pleadings

[2] The pursuer is a journalist. The defenders are the publishers of The Sunday Herald. The pursuer avers that on 25 February 2005 he wrote an article in the Scottish edition of The Times "in which Jim Wallace quashed speculation that he was to stand as Leader of the Liberal Democrats in Scotland." The pursuer goes on to say, "Notwithstanding the terms of the article Wallace resigned on 9 May 2005."

[3] The defenders published an article of and concerning the pursuer in their edition of 18 December 2005. It appeared on page 12, which was headed "DIARY". The title of the page was "ALAN TAYLOR'S DIARY". It contained a number of items. One of them gave or purported to give an account of a ceremony at which there had been awarded "the prestigious Tartan Bollocks Award, which is given to the Holyrood hack who has made the biggest gaffe of the year." The item contained the following passage, which includes the words of which the pursuer complains:

"Angus Macleod of the Times who, like Alexander Graham Bell, is justly renowned for his powers of invention, came close with his confident prediction that Jim Wallace would still be leading the LibDems in 2007. Mr Wallace repaid the faith shown in him by promptly announcing his retirement."

[4] The pursuer avers in article 4 of the condescendence:

"The contents of said article are false and calumnious. Journalists are not permitted to invent stories. In most instances a journalist who has invented a story is liable to summary dismissal. The requirement to take care not to publish something that is inaccurate, a misleading statement or a distorted report is part of the PCC [Press Complaints Commission] Code of Practice. Almost all other codes of practice for journalists throughout the world require that they should present fair and accurate information. The article conveyed to the reader the false impression that the pursuer enjoyed a just renown for his powers of invention. The reader would have concluded that he was a disreputable journalist who made up stories rather than investigate them. They would have concluded that he was not a fit and proper person to be employed by The Times or to take part in broadcasting for the BBC and other broadcasters. Those who read his article of 25 February 2005 would have concluded that he invented a conversation with Jim Wallace."

[5] The defenders' first plea-in-law is in these terms:

"1. The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed."

The pursuer has stated pleas to the relevancy of averments in the defences relative to fair comment and to the article's not being defamatory and being banter, but the pursuer's counsel did not address me on those pleas. I heard submissions relative only to the defender's first plea-in-law.

 

The defenders' submissions

[6] Counsel for the defenders submitted that two questions arose at this stage. (1) Would an ordinary reader take from the article the meanings which the pursuer asserted? (2) Would the ordinary reader have understood the article in a defamatory sense? Whether the pursuer's averments met these tests was a matter of law. The meanings asserted by the pursuer must represent reasonable, natural and necessary inferences from the words used, regard being had to the occasion and the circumstances of their publication. Counsel referred to Russell v Stubbs Ltd 1913 SC (HL) 14, Lord Kinnear at pages 20-22, Lord Shaw of Dunfermline at pages 23-24, and James v Baird 1916 SC (HL) 158, Earl Loreburn at page 163, Lord Kinnear at pages 165-166. The principles to be employed when deciding the meanings to be attributed to words were set out in Gillick v British Broadcasting Corporation [1996] EMLR 267 by Neill LJ at pages 272-273. A very similar approach had been taken in McCann v Scottish Media Newspapers Ltd 2000 SLT 256.

[7] In the present case, said the defenders, the article complained of was not a news item, and would be readily understood to be a piece of satire or sarcasm. An attempt to give the words a defamatory meaning was "a strained and sinister interpretation" (Russell, Lord Shaw of Dunfermline at page 23). While it was not a defence to say that the words used were only a joke, it was a defence to say that the circumstances showed that the words could not be understood by those who read them as having a serious meaning. If a reasonable reader would have seen them as chaff and banter, the article was not defamatory. Counsel cited F T Cooper, The Law of Defamation and Verbal Injury (2^nd edition, 1906), page 46, and Bell v Haldane (1894) 2 SLT 320. In England the essence of libel was the publication of written words to a person or persons by whom they would be reasonably understood to be defamatory of the claimant. It was necessary to take into consideration, not only the actual words used, but the context of the words. It followed that in the case of a newspaper article the defendant was entitled to have considered as part of the claimant's case the whole of the piece from which the alleged libel was extracted. If a reasonable reader would have understood the words as made in jest, they were not actionable. Counsel referred to Gatley on Libel and Slander (10^th edition, 2004), paragraphs 3.14, 3.28, 3.29 and 3.32.

[8] Counsel went on to analyse the article and to submit that it did not convey to a reasonable reader any of the meanings attributed to it by the pursuer in article 4 of the condescendence. The reasonable reader would regard the words complained of as nothing more than an absurd joke (Gatley, paragraph 3.32). The Diary page was chockful of assertions of fact which were obviously false and from which no reasonable reader could possibly take any calumnious reading. The item satisfied the test stated by Martin J in Triggs v Sun Printing Association (1904) 179 NY 144 at 155 and quoted in Gatley, paragraph 3.32, footnote 29:

"Jest is not justification unless it is manifest from the language employed that it could in no respect be regarded as an attack upon the reputation of the person to whom it related."

It was obvious that only a jest had been meant. No injury could be said to have been done, and no action could lie. The action should therefore be dismissed.

 

The pursuer's submissions

[9] Counsel for the pursuer stated that although an action of defamation was among the enumerated causes ordered by statute to be tried by jury in the absence of agreement otherwise or special cause, the pursuer sought proof before answer. The action should not be dismissed as irrelevant unless it must necessarily fail even if all the pursuer's averments were proved (Jamieson v Jamieson 1952 SC (HL) 44 at page 50 per Lord Normand; Henderson v 3052775 Nova Scotia Ltd [2006] UKHL 21, 2006 SC (HL) 85 at paragraph [16] per Lord Rodger of Earlsferry).

[10] The pursuer had written his article of 25 February 2005 on the basis of information provided by Mr Wallace. The article published by the defenders described it as a prediction. If the article had said only that the pursuer had made a false prediction, that would not be defamatory; or if it had referred to the pursuer as being like Nostradamus or the Brahan Seer, no action would have been raised. But journalists were not permitted to invent stories. The question was whether the words complained of were capable of bearing a defamatory meaning. If there was controversy as to which of two meanings should be ascribed to them, the case should be sent to proof before answer. Standing the duty of a journalist not to invent, the imputation in the article was capable of lowering the pursuer in the minds of right-thinking members of society. Reading the article as a whole would not assist. The diarist had been reporting events which had recently taken place. The other items related to other people. An invention was not the same as a prediction: the other persons referred to in the item were journalists who had made human errors by publishing an old story or by making wrong predictions or mistakes. The pursuer, however, was said to be "justly renowned for his powers of invention." It was a strained construction of the passage to suggest that somewhere in the article there was something that could palliate the seriousness of the allegation. The situation could not be saved by surrounding the words in question with jokes and false facts. It was not a complete answer to a defamatory statement that it was meant as a joke: Prophit v British Broadcasting Corporation 1997 SLT 745 at page 747F. A person was not allowed to murder another's reputation in jest. The Court would have to be satisfied that the alleged words in jest had been so written that it was obvious to every ordinary reasonable reader that only a jest was meant, and the words could in no respect be regarded as an attack upon the pursuer's reputation (Gatley, paragraph 3.32 and footnote 29). Here, there was a bane, but no antidote (cf Gatley, paragraph 3.29). Having set up the defamatory idea that the pursuer had a reputation for being an inventor, what followed was a non sequitur. The fact that the statement was in the "Diary" was neither here nor there. It was not banter: it conveyed to the reader the meanings set out in article 4. The pursuer's counsel distinguished Bell v Haldane from the present case: the Lord Ordinary had not interpreted the words complained of, and the present case was in the different territory of the public domain.

[11] Counsel on both sides referred to article 10 of the European Convention on Human Rights but did not discuss it in detail.

 

Discussion

[12] I begin by adopting the words of Lord Macfadyen in McCann v Scottish Media Newspapers Ltd 2000 SLT 256 at pages 2260L-261B:

"I am not concerned at this stage with deciding whether in the articles complained of the defenders did in fact defame the pursuer. My task is to decide whether the pursuer has set out in his averments a relevant case that the articles contained defamatory imputations against him. The authorities which were cited to me as to the nature of that task were expressed in terms of the contrast between the role of the judge in determining the relevancy of the averments of defamation and the role of the jury in determining whether the pursuer had in fact been defamed. Here the pursuer does not seek trial by jury. Counsel's motion was for the allowance of a proof before answer, leaving standing not only the pursuer's plea to the relevancy of the defence of fair comment, but also the defender's plea to the relevancy of the action. By proposing a proof before answer, the pursuer may be taken to have waived his entitlement to a decisive determination in his favour that his pleadings are relevant; but that does not deprive the defenders of their right to a decision as to whether the pursuer's averments are relevant. They are entitled to dismissal of the action if, on the application of the appropriate tests, the pursuer's averments do not relevantly support the proposition that he has been defamed."

[13] I also accept Lord Macfadyen's analysis of the questions which the Court must address in judging the relevancy of the pursuer's averments. His Lordship said (at page 261F-L):

"The first stage is to examine what it is averred that the material complained of would be understood to mean. That involves examination of the words used, and of the inferences they are said to bear. I accept counsel's submission that in that context the articles complained of must be read as a whole. Within the context of a single article, that proposition is clearly borne out by Russell v Stubbs Ltd [1913 SC (HL) 14] and Charleston v News Group Newspapers Ltd [[1995] 2 AC 65]. [ . . . ] Once it has been determined whether the articles can bear the meaning complained of, the remaining question is whether that meaning is defamatory. That depends on whether it amounts to an injurious imputation against the character or reputation of the pursuer (Cooper on Defamation (2^nd ed), page 1; Waddell v Roxburgh [(1894) 21 R 883], per Lord Kinnear at page 886), or, in other words, whether it is such as to 'tend to lower the [pursuer] in the estimation of right-thinking members of society generally' (Sim v Stretch [1936] 2 All ER 1237 per Lord Atkin at page 1240).

"In determining whether the pursuer has relevantly averred that the article complained of bears a particular meaning, it is in my view clear on authority that the question is not simply whether the article is theoretically capable of bearing that meaning. Although there are dicta which express the question for the court in terms of whether the words are 'capable of the defamatory meaning ascribed to them' (Russell v Stubbs Ltd, per Lord Kinnear at page 20), Sim v Stretch, per Lord Atkin at page 1240), it is clear that 'capable' must be read in a special sense. Attention must focus on the 'reasonable, natural or necessary' interpretation of the words (Russell v Stubbs Ltd, per Lord Shaw of Dunfermline at page 23). These terms are not synonyms, and I take the view that a reasonable interpretation would be relevant, even if it was not the meaning which the article complained of necessarily bore. When the matter is one of inference, it is the inference of the reasonable person that forms the test (Capital & Counties Bank Ltd [v George Henty & Sons (1882) 7 App Cas 741], per Lord Selborne LC at page 745). It is not, pace Viscount Haldane in Langlands v John Leng & Co Ltd [1916 SC (HL) 102] at page 105, a matter of how the words were actually 'intended to be construed'. Rather the issue is objective: whether the circumstances 'provide grounds for a reasonable inference' that the meaning contended for was intended (Gollan v Thompson Wyles Co [1930 SC 599], per Lord President Clyde at page 604). Any 'strained and sinister' interpretation is to be left out of account (Russell v Stubbs Ltd, per Lord Shaw of Dunfermline at page 23), as is the inference that might be drawn by the 'unusually suspicious' person (Lewis v Daily Telegraph Ltd [[1964] AC 234], per Lord Reid at page 259)."

[14] Valuable practical guidance consistent with Lord Macfadyen's approach is to be found in the judgment of Neill LJ in Gillick v British Broadcasting Corporation [1996] EMLR 267 at pages 272-273. That case was concerned not with words written in a newspaper but with words spoken in a live television programme. Mutatis mutandis, however, the following statement of the principles on which to approach the task of deciding the meaning to be attributed to the words used may be applied in this case:

"(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once.

(2) The hypothetical reasonable reader (or viewer) is not naïve but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) While limiting its attention to what the defendant has actually said or written the court should be cautious of an over-elaborate analysis of the material in issue.

(4) A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.

(5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court are entitled (if not bound) to have regard to the impression it made on them.

(6) The court should not be too literal in its approach.

(7) A statement should be taken to be defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally."

[15] With these principles in mind I now attempt to answer the first question identified by Lord Macfadyen: whether the words used in the material published by the defenders can bear the meanings complained of by the pursuer. I begin by setting out the context in which the material was published and the meanings attributed to it in the pursuer's pleadings.

[16] As I have already mentioned, the words appear on a page of the newspaper headed "DIARY" which bears the title "ALAN TAYLOR'S DIARY". The "Diary" consists of a number of items. It will suffice to notice a few of them. The second item is headed, "Up the Amazon without a paddle?" and begins, "Dramatic news!" It continues:

"Anthropologists combing the Amazonian rainforest for a lost Indian tribe have stumbled across Patricia Ferguson, Meenister for Everything, who was recently reported missing in despatches."

The diarist goes on to inform the reader that Ms Ferguson "had spent her spell in the wilderness listening to Franz Ferdinand on her iPod and reading the Oor Wullie annual." The next item is concerned with a statement by the First Minister about a bid by the city of Glasgow to host the Commonwealth Games in 2014. It states:

"'We will have a quality bid,' he decreed, like Caesar announcing the invasion of Gaul, 'one that will deliver an event that will be the envy of the world.'"

Another item begins:

"Lord Berk, who in an earlier incarnation was called Birt, has left Downing Street for a job in the City. This was news to many, most of whom assumed that when the former BBC director general stood down he went into hospital to try and have his charisma by-pass op reversed."

These examples indicate the context in which the item containing the passage complained of by the pursuer appears.

[17] It will be necessary to set out that item in full. It is headed, "Gaffes come home to roost." The text is as follows:

"As ever, the competition was intense for the prestigious Tartan Bollocks Award, which is given to the Holyrood hack who has made the biggest gaffe of the year.

"At a star-studless ceremony in an Edinburgh shebeen, Hamish McDonell, the Hootsmon's peedie political editor, was shortlisted for his fantastic tale in which Lord Forsyth of Blessed Memory called for the abolition of MSPs.

"Sadly the story turned out to be so old that it had mould growing on it. Angus Macleod of the Times who, like Alexander Graham Bell, is justly renowned for his powers of invention, came close with his confident prediction that Jim Wallace would still be leading the LibDems in 2007. Mr Wallace repaid the faith shown in him by promptly announcing his retirement.

"I was shocked to learn that my dear friend Robbie Dinwoodie of The Herald was a contender, having opined that Tory MSP, David Davidson, would not lose his place on the health committee despite forming an unusually strong attachment to Gnat MSP Christine Grahame. How wrong you were, Mr Dinwoodie.

"None, however, it was universally agreed, could possibly compete with Campbell Gunn, who at the height of Taxigate told the embalmed readership of the Sunday Post that David McLutchie-at-Straws would survive the slings and arrows being hurled in his direction. A day later McLutchie offered his resignation. The gratitude of politicians!"

[18] The meanings complained of by the pursuer are these. (1) "The article conveyed to the reader the false impression that the pursuer enjoyed a just renown for his powers of invention." (2) "The reader would have concluded that he was a disreputable journalist who made stories up rather than investigate them". (3) "They would have concluded that he was not a fit and proper person to be employed by The Times or to take part in broadcasting for the BBC and other broadcasters." (4) "Those who read his article would have concluded that he invented a conversation with Jim Wallace."

[19] I now consider whether the material complained of would have conveyed those meanings to the ordinary reasonable reader reading the item once. I bear in mind the words of Lord Macfadyen and Neill LJ. I note, in particular, that the hypothetical reasonable reader is neither naïve nor unduly suspicious, and that the Court should be cautious of an over-elaborate analysis and should not be too literal in its approach.

[20] An examination of the context of the material complained of shows that it appears, not on one of the news pages of the paper, but on a page headed "Diary" and under the heading "Alan Taylor's Diary". In an earlier item the reader is informed that one of the Scottish Ministers had gone missing in the Amazonian rainforest and inter alia had been reading the Oor Wullie annual until she was found by anthropologists. In another, a statement by the First Minister is compared to an announcement by Julius Caesar. In a third, Lord Birt is said to have changed his name to Lord Berk, and to have gone into hospital "to try and have his charisma by-pass op reversed."

[21] In the item in which the pursuer is mentioned, the diarist describes, or purports to describe, a ceremony at which an award was given "to the Holyrood hack who has made the biggest gaffe of the year." The reader is told that "the competition was intense" for this distinction. The ceremony is said to have been "star-studless", a neologism intended to convey that it was not "star-studded". It is also said to have taken place "in an Edinburgh shebeen", a word defined by counsel as "an illegal drinking den in which alcohol on which duty has not been paid is served." Reference is then made to "the Hootsmon's peedie political editor", which the hypothetical reasonable reader would understand as a reference to the political editor of The Scotsman and as describing him as being small in stature. That journalist is said to have written an old story about "Lord Forsyth of Blessed Memory", which the same reader would understand as a reference to Lord Forsyth of Drumlean. Next comes the material concerning the pursuer. It is followed by a paragraph mentioning a "Gnat MSP", meaning a Scottish Nationalist MSP, and by a final paragraph referring to "the embalmed readership of The Sunday Post" and "David McLutchie-at-Straws", a reference to Mr David McLetchie MSP.

[22] In my opinion no ordinary reasonable reader would have regarded any of these items as providing reliable factual information. It would have been clear to him or her that the "Diary" was not concerned to convey hard news or serious comment such as no doubt appeared elsewhere in the paper. He or she would not have believed the story about the missing Minister, or taken seriously the comparison of the utterances of Julius Caesar and the First Minister, or accepted that Lord Birt had changed his name to Lord Berk and had been in hospital. In the item in which the pursuer is mentioned, the same reader would not have believed that journalists had competed for the distinction of having made "the biggest gaffe of the year". The words "star‑studless", "shebeen", "Hootsmon", "peedie", "Gnat" and "embalmed", and the names "Lord Forsyth of Blessed Memory" and "David McClutchie-at-Straws" would have conveyed to that reader that this item, like the others, had been written for his or her entertainment in a cheerful, irreverent and playful spirit, and contained elements of fantasy.

[23] Of the four journalists said to have been considered for the award, one of them is said to have written an old story, while the other three, including the pursuer, are described as having made predictions which turned out to be wrong. In my opinion the ordinary reasonable reader would have accepted as fact that the journalists had indeed written those stories.

[24] In all these circumstances, what impression would the material complained of have been likely to have on that reader? The words complained of are these:

"Angus Macleod of the Times who, like Alexander Graham Bell, is justly renowned for his powers of invention, came close with his confident prediction that Jim Wallace would still be leading the LibDems in 2007. Mr Wallace repaid the faith shown in him by promptly announcing his retirement."

Having considered that passage in its context and in the light of the guidance from the cases to which I have referred, I am unable to accept that an ordinary reasonable reader would have attached to those words any of the meanings averred by the pursuer. It may well be that in other circumstances, to say of a journalist that he was justly renowned for his powers of invention would lead such a reader to regard the words as a grave accusation and to attach such meanings to them. In the passage under consideration, however, the words "justly renowned for his powers of invention" not only appear in the context described but also are accompanied by the words "like Alexander Graham Bell", which would have been understood as a far‑fetched and humorous or at least facetious comparison, and are followed by the mention of the "prediction" about Mr Wallace. It is not said that the pursuer had invented the facts on which the prediction was based. The writer does not question whether the pursuer's conversation with Mr Wallace took place, and it is clear from the light-hearted tenor of the item that the writer is not concerned to make a serious charge that the pursuer is a disreputable journalist who is not a fit and proper person to be employed by The Times or the BBC. In my view it would have been clear to the ordinary reasonable reader that the pursuer, like the other three journalists mentioned, was being chaffed or teased by the diarist in a good-humoured or bantering manner for having written a story which could be described as a "gaffe": in the first case the story was an old story, and in the others, including the pursuer's, it was a prediction which had proved to be inaccurate. I have had no difficulty in being satisfied that the reader would not have regarded the passage as conveying any of the very serious meanings pleaded by the pursuer. I consider that it passes the test stated in Triggs: "it is manifest from the language employed that it could in no respect be regarded as an attack upon the person to whom it related."

 

Result

[25] It follows that in my opinion, on the application of the appropriate tests, the pursuer's averments do not relevantly support the proposition that he has been defamed. I shall therefore sustain the defenders' first plea-in-law and dismiss the action.