Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH NUMBER44
A952/08	OPINION OF MORAG WISE, Q.C (Sitting as a Temporary Judge) in the cause FRANCES CURRAN Pursuer; against SCOTTISH DAILY RECORD AND SUNDAY MAIL LIMITED Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: McIlvride; Anderson Fyffe LLP

Defender: Dunlop; Balfour and + Manson LLP (for Levy & McRae)

26 March 2010

Introduction

[1] This is an action for damages for defamation. The pursuer is a member of the Scottish Socialist Party ("the SSP") and a Member of the Scottish Parliament ("an MSP"). The defenders are the publishers of the Daily Record and Sunday Mail newspapers. The pursuer's case arises from four pages of articles appearing in the edition of the Daily Record published on 7 August 2006. The articles were said to be based on interviews with Mr Tommy Sheridan. The matter came before me on the procedure roll for discussion of the defenders' first and fifth pleas‑in-law. Mr Dunlop argued for dismissal of the action while Mr McIlvride for the pursuer submitted that the case should be sent to proof before answer.

[2] The headline on the front page of the Daily Record of 7 August 2006 was in the following terms:

"I'll destroy the scabs who tried to ruin me. Tommy vows to win back leadership of Scottish Socialists."

The article on pages 4 and 5 of the newspaper of that date contained a headline "It's me or oblivion" and included photographs of four MSPs, Colin Fox, the pursuer, Rosie Kane and Carolyn Leckie, all members of the SSP. The following are excerpts from the article in question, which was styled in the form of an interview with Mr Sheridan;-

"The MSP, who won £200,000 defamation damages on Friday, is exhausted by the sensational court case and bitter at how the former allies he now calls 'political scabs' turned on him..."

He said

"The last 18 months have been full of personal attacks on my character and slurs on my private life. Individuals with positions of influence within the party have used those positions to try to isolate me as an individual and as a political force..."

He said

"There is no way I could be convener of a party with its apparatus controlled by those who have tried to politically undermine me..."

"I will find it very difficult to continue to be associated with individuals whom I consider collaborators with the enemy, who have become political scabs..."

"I am not in favour of expulsions even though I consider those who lined up with broad smiles on their faces as they entered the court to be political scabs.

When a socialist takes on one of the most ruthless anti-union and anti-socialist empires in the world and wins, you would expect socialists to rejoice.

The fact that some so called socialists have strained their voices in condemnation of me, rather than in jubilation, exposes the level of personal hatred that has infected these people.

I believe there has been a statement issued by three MSPs that they will not work with me. Not speaking to them ever again will not keep me up at night.

But if those individuals have declared they'll no longer work with me politically, they stand exposed as political blackmailers trying to hold their party to ransom..."

Submissions for the defenders

[3] Mr Dunlop explained that the pursuer's claims that she was defamed in the article referred to above arise in the context of the well publicised civil jury trial in Mr Tommy Sheridan's defamation action against News Group Newspapers Limited ("NGNL") who publish the News of the World newspaper. The jury returned their verdict in that trial on 4 August 2006, finding in favour of Mr Sheridan and awarding him damages of £200,000. It is not in dispute that the jury trial and the jury's verdict were reported extensively in the print and broadcast media in Scotland. It is also admitted that the defenders printed a series of articles based on exclusive interviews with Mr Sheridan and that the Daily Record and Sunday Mail newspapers have a wide circulation in Scotland.

[4] Mr Dunlop's motion was to invite me to dismiss the action on the basis that no relevant case of defamation was made out in the pursuer's pleadings, which failing to delete certain averments which he elaborated on as part of his esto position that, were the action to proceed to proof before answer, those deletions would in any event require to be made.

[5] Mr Dunlop's first argument was to the effect that a criticism by an MSP of another MSP does not amount to defamation because of the permitted latitude in criticising those who hold public office. He submitted that it was well settled that the question of whether a specific criticism falls within that latitude is a matter of law for the court to determine at this stage. On the general approach to allegedly defamatory material reference was made to Angus McLeod v News Quest 2007 SCLR 555 at 559. In particular it was emphasised that the article involved must be read as whole and that the test was whether the words used in it tended to lower the pursuer in the estimation of right thinking members of society generally. In doing so the court is entitled to have regard to the impression the alleged defamatory material had on it - Gillick v British Broadcasting Corporation [1996] EMLR 267.

[6] To the general rule Mr Dunlop submitted, must be added the particular situation of those holding public office where greater latitude in relation to criticisms made of them was available. In that context reference was made to McLaughlin v Orr Pollock & Co [1894] 22 R 38, Langlands v Leng 1916 SC (HL) 102 and Mutch v Robertson 1981 SLT 217. Those decisions all supported the contention that criticisms of someone holding public office could not have a defamatory meaning unless they amounted to an imputation of dishonesty or dishonourable behaviour. In Mutch v Robertson the following passage from McLaughlin v Orr Pollock & Co was cited with approval:-

"It is only where private character is attacked, or when the criticism of public conduct is combined with the suggestion of base or indirect motives that redress can be claimed on the ground of injury to reputation."

[7] Turning to the article that forms the basis for the pursuer's claim (lodged at 6/1 of process) Mr Dunlop submitted that, given that the article must be looked at as a whole, it represented an attack on the public and/or political activities of the pursuer and her colleagues. The term "scab" in the article was a reference to the pursuer being a "political scab". Throughout the article the conduct complained of is always referred to as political conduct and was accordingly permissible in accordance with the wide latitude referred to in the authorities above. Mr Dunlop accepted that looked at in isolation, the superimposition of the word "scab" on the pursuer's photograph might be construed as defamatory but there was clear authority to the effect that one could not isolate a potentially defamatory part of such an article and that when looking at the piece as a whole the context was clear - see Charleston v Newsgroup 1995 2 AC 65. Mr Dunlop submitted that if his argument in relation to this first point was accepted he would be entitled to dismissal on that basis alone.

[8] On an esto basis certain other arguments were presented. In particular, Mr Dunlop argued that certain averments within Article 5 of Condescendence were irrelevant. Even if proved, they did not impute defamation. The averments in question appear in Article 5 of Condescendence (page 20D). In essence those averments are to the effect that the pursuer had aligned herself with NGNL during the trial, had assisted them in the litigation between them and Mr Sheridan and that the article misrepresented that the pursuer had given evidence at the jury trial on behalf of NGNL against Mr Sheridan. The question to be asked, Mr Dunlop submitted, was whether it would lower any person in the estimation of right thinking people to be told that someone had given evidence in court. Mr Dunlop accepted that the averments that went to the extent of offering to prove that the article suggested that the pursuer had been giving evidence in furtherance of a plot against Mr Sheridan would be relevant, but those that went only to the alleged act of giving evidence were not.

[9] Further, it was said that in the context of the article the word "scab" was clearly a political comment rather than an assertion of fact. In Article 5 (page 21B of the closed record) the pursuer avers that the term was used as an assertion of fact and not fair comment. If that was so then the only defence that would be open to the defenders was a plea of veritas and not fair comment. This issue raised a question of how one assessed as a fact whether someone was a "scab". It was submitted that used on its own the term made no sense and that it must regarded as comment. Reference was made to Grech v Odhams Press 1958 2 QB 215 in support of the contention that comment is often recognised and distinguished from allegations of fact by the use of metaphor. Further, in Branson v Bower 2001 EMLR 32, there was a trial on a preliminary issue of whether the words in an article complained of were comment or statements of fact. The judge at first instance decided that for the purposes of a defence of fair comment, comment was, "...something that was or could be reasonably inferred to be, a deduction, inference, conclusion, criticism, remark, observation etc." In the Court of Appeal the first instance decision was upheld as the articles concerned appeared to express a series of opinions about the motives of the appellant in a way which would leave the reader in no doubt that they were inferences drawn by the respondent from the facts set out in the article. In this case, argued Mr Dunlop, it was clear from the Daily Record article that it was being said that Mr Sheridan deduced and inferred that the pursuer and others had supported or assisted the News of the World and were therefore political scabs. The word scab was being used as a metaphor for disloyalty and was thus a criticism. If this particular argument was accepted it would involve the deletion of averments in Article 5 from page 21B, where it is explained that the word scab was used as an assertion of fact and that the statements in the article amounted to assertions that the pursuer was in fact a scab.

[10] A further argument was presented that the comments made in the article were in any event protected by qualified privilege. It was contended that there are two different species of privilege. The first is commonly known as "Reynolds privilege" (as propounded in the case of Reynolds v Times Newspapers Limited [2001] 2 AC 127). That type of privilege can be claimed where a journalist reports responsibly on matters of public concern thus entitling him to privilege. An example of how that type of privilege might fit into the present action could be found in the averments in Answer 5 at page 23 (C to D) of the closed record where the defenders aver that the article in the Daily Record was published on an occasion subject to qualified privilege because the jury trial and its result, as well as the opinions of Mr Sheridan as the main protagonist therein, were at the time of publication matters of the highest public interest and concern. The averments in Answer 5 go on to detail the nature of the statements made and their context. However, Mr Dunlop accepted that the court could not be satisfied on the issue of whether this was responsible journalism or not at the stage of procedure roll discussion. What the defenders sought to rely on at this stage was a second and distinct type of qualified privilege in the form of fair retort or fair reply to an attack. The defenders' position on that was set out in Answer 5 at page 25 of the closed record A to B where it is clear that as a separate argument the defenders state that Mr Sheridan was responding to an attack made upon him by the pursuer and her colleagues in the SSP United Left. The defenders were entitled to qualified privilege as those who reported Mr Sheridan's response to the attack.

[11] There are two statements said to have been made by or on behalf of the pursuer and her colleagues involved in this aspect of the case. These are set out in the closed record at pages 9 to 16. The first was a statement which the defenders aver was a press statement issued by the pursuer, Rosie Kane MSP and Carolyn Leckie MSP on 4 August 2006 in the immediate aftermath of the verdict of the jury. Mr McIlvride confirmed that it was admitted that the following statement was made by the pursuer and her fellow two MPs and that it was in the following terms:-

"Statement by Frances Curran MSP Rosie Kane MSP and Carolyn Leckie MSP, 04/08/06.

We are angry that the Scottish Socialist Party has been dragged through the Court of Session for 4 long weeks and now faces another ordeal as the News of the World launches an appeal.

This was a court case we didn't want to be involved in and one that Tommy Sheridan should never have initiated.

Tommy has lied his way through this court case and we want no part in that.

We have told the truth and we stand by the minutes of our party which record the truth about Tommy Sheridan's standing down as National Convenor in November 2004 and we will resist any attempt to revive the SSP's history.

The most important thing now is for all SSP members to be in possession of the facts.

We are very unhappy that the courts have had this information while party members have been in the dark and we will defend and protect the democracy of the SSP.

There is no plot, no frame up of Tommy Sheridan, the idea only exists in his paranoid imagination.

The party can move forward but only on the basis of acceptance of the truth.

This is not over yet and even at this late stage it is not too late for Tommy to tell the truth.

The truth remains the truth."

The defenders also claim that on the same day a statement was issued by the SSP United Left, a faction within the SSP founded in June 2006 by the pursuer and others in reaction to the perceived damage occasioned to the SSP by the adverse publicity surrounding Mr Sheridan's defamation case. The terms of that statement are set out on record. I was informed by Mr McIlvride that it was accepted that the pursuer was a member of the said faction within the SSP but it was not accepted that she was personally involved in issuing that statement.

[12] According to Mr Dunlop, standing the admission that the pursuer was responsible for the first press release and that the making of the second statement by the SSP United Left was by a faction within the party that she was part of albeit the statement not having been made by her personally, it was open to the court to find that at this stage that the article in the Daily Record was a reply by Mr Sheridan to an attack. If so, the reply was covered by privilege. The privilege was qualified to the extent that it may be rebutted by malice. However the pursuer would require to aver malice and she has not done so.

[13] It was submitted that if I characterised the article as privileged, being a reply to an attack, then the lack of averments of malice was fatal to the pursuer's case. In support of that proposition reference was made to Rogers v Orr 1939 SC 121 in which it was said to be settled in the practice of the court that in cases of privilege, the pursuer's averments of malice must be supported by relative averments of facts and circumstances that infer such malice on the part of the defender (page 133 per Lord Moncreiff). It was noteworthy in this case that there was no assertion at all that Mr Sheridan was malicious in making the comments that he did about the pursuer, far less were facts and circumstances averred from which malice could reasonably be inferred. Malice is in any event a personal attribute and it was submitted that it would be difficult to say that the defenders were malicious.

[14] The press release issued by the pursuer and others on 4 August 2006 was said to contain clear allegations that Mr Sheridan lied on oath and that he was wrong to allege a conspiracy on the part of his former colleagues. According to Mr Dunlop, it was important to note that the press release had been issued on the same date as the jury's verdict in the defamation action. Notwithstanding the terms of that verdict, the statement of the SSP United Left had referred to Mr Sheridan's litigation as a "bogus defamation action" and its impact on the party as an "absolute political scandal". The press release on behalf of the pursuer alleged that the idea of a plot or frame up existed only in Mr Sheridan's "paranoid imagination". This was a sustained and highly critical attack on Mr Sheridan as a perjurer and fantasist who had tortured and tormented his party to save his own vanity. He was portrayed by his colleagues as someone who had betrayed his socialist principles and had damaged his party. The context was important to the extent that the repost by Mr Sheridan appeared immediately, on the first available weekday after the press releases. Mr Dunlop argued, under references to the parts of the Daily Record article that mentioned that Mr Sheridan considered his colleagues should be participating in jubilation rather than condemnation to illustrate that the article could clearly be construed as a response to the statements given by the pursuer and others on the Friday.

[15] Reference was then made to a number of authorities on the issue of a response to an attack in defamation proceedings. First the decision in Laughton v Bishop of Sodor and Man 1872 LR 4(PC) 495 was cited as authority for the proposition that so long as the responder uses a "like for like" medium to that in the original statement or attack, it was more likely to be seen as a response. In this case the press was used to respond to a press release. In Dwyer v Esmond 1877 IR 11 CLS 542 it was said that if by making a statement one invites resort to the "Court of Public Opinion" then publication of a response may be merited, even if defamatory, so long as it is without malice. In Adam v Ward 1917 AC 309 it was made clear that it is the occasion which is privileged in the context of a response to an attack. That privilege is defeated if the response is malicious, but a bona fide belief is assumed unless there are specific averments and a plea of malice. The House of Lords also confirmed the "like for like principle" if resort by the attacker was through the press. The case of Loveday v Sun Newspapers 1938 59 CLR 503 was a decision of the High Court of Australia where again it was reiterated that where a plaintiff had himself chosen the press for the purpose of giving publicity to his attack he could not complain if the defendant used the same medium for reply. Importantly it was said that the principle protected both the person attacked and the proprietor of the newspaper which publishes his reply to it. The rationale for that extension is that the privilege is said to be of no value if the means of exercising it are not also protected. Mr Dunlop then referred to the decision of the First Division in Gray v Scottish Society for the Prevention of Cruelty to Animals 1890 17 R 1185. There, a stable keeper who had been tried on a charge of cruelty to animals which was ultimately found not proven, published correspondence between him and the Secretary of the Society for the Prevention of Cruelty to Animals in which he demanded payment of the expenses of the prosecution arguing that he had suffered a cruel injustice. Thereafter the Secretary of the Society wrote to the same newspaper, detailing the information on which the prosecution had proceeded and referring to a warning which the Society had addressed to the stableman in another case. It was also pointed out that the decision had been one of not proven which the Secretary remarked was "in the circumstances a very different verdict from not guilty". The stableman's action for damages for slander in respect of the letter under related advertisement was dismissed on the basis that the Society was in the circumstances entitled to defend themselves against the stableman's allegation in a manner as public as that in which they were accused. It was found that the Society's letter did not exceed the legitimate limits of a reply and defence against the stableman's attack.

[16] It was noted that the press releases referred to were sent to eight separate national publications. Mr McIlvride having accepted that it made no difference that the pursuer may not have been personally responsible for the statement made by the United Left given that she was a member of that faction, it could be seen that the defenders were, for Mr Sheridan, responding at the same level as the attack. It was also pointed out that the pursuer's averments relating to privilege in Article 5 of Condescendence (page 21D -22D) were a response only to the Reynolds type privilege claimed by the defenders. As it has already been accepted that that issue could not be determined at the procedure roll stage of an action, it could be seen that there was nothing in the pursuer's case directed at the issue of the reply to an attack type of privilege. It could have been averred that the response had gone too far but that would have to have been pled and the pursuer in this case had not done so. In any event, said Mr Dunlop, the response in this case might be seen as more moderate than the initial attack. It was noteworthy that in the case of Gray v Scottish Society for Prevention of Cruelty to Animals referred to above there was no malice averred which was ultimately fatal to the pursuer's case. In the more recent case of Caroll v BBC 1997 SLT (Sh. Ct.) 23 a solicitor had claimed damages for defamation in respect of a statement broadcast on television. The broadcast complained of took place during a news programme broadcast throughout Scotland when reference was made to a Sheriff Court case in which an accused had been sentenced to a period of imprisonment having pled guilty to a charge of assaulting a journalist. The pursuer had been the solicitor of the accused and in the course of his plea in mitigation had said that attempts to investigate the case on his client's behalf had been met with obstruction and even threats that might lead people to conclude that the journalist in question had been working in co-operation or even in collusion with the police. The journalist victim was then asked during the broadcast to comment on the allegation of obstruction and collusion to which he replied "it's an outrageous suggestion by a man who is a complete stranger to the truth." A decision at first instance to allow proof before answer was appealed to the Sheriff Principal who was taken to the various authorities on the question of a retort attracting qualified privilege. The appeal was upheld and the action dismissed on the basis that in the agreed circumstances the occasion was one of qualified privilege. The journalist in question was said to be refuting unpleasant allegations made against him very publicly. It was said he was entitled to defend himself and to do so robustly. If in doing so he employed an epithet directed at the pursuer that was defamatory, that did not deprive him of the protection that the law extended to him "for the common convenience and welfare of society". The statement used by the journalist would only be actionable if malice on his part was proved. As malice had not been alleged by the pursuer the action failed. Mr Dunlop suggested that the case of Caroll was effectively "on all fours" with the present case in that here the unpleasant epithet "scab" had to be understood as part of a robust response to a ferocious attack by Mr Sheridan's former colleagues.

[17] Mr Dunlop submitted that if his argument on the response to an attack type of qualified privilege was upheld then in the absence of any malice being averred his first and fifth pleas-in-law should be sustained and the action dismissed.

Submissions for the pursuer

[18] In the course of his submissions Mr McIlvride invited me to refuse the defender's' motion and to allow a proof before answer on the whole pleadings. In relation to the argument that the statements made in the article are about the pursuer as a holder of a public office on a matter in the public interest, four points were made in response. First it was said that the freedom allowed to criticise holders of public office is only to comment. Secondly, it is a requirement (if privilege is established) that such comment is on facts truly stated. Thirdly, in relation to defamatory statements of fact, politicians are entitled to be protected. And lastly, it was said that even if the first three comments were wrong, then this was a case in which the nature of the imputations being made took the article outwith the protection of qualified privilege as defined in Mutch v Robertson and the other authorities. It was said that the tenor of the statements in the article were to the effect that the pursuer had been guilty of dishonest conduct with base motives.

[19] In elaborating the issue about comment, Mr McIlvride sought to distinguish between defamatory statements of fact and criticisms or comment. A criticism founded on a true representation of facts already before the public was acceptable. However, insofar as there may be criticisms made in the article in question of a public figure on a matter of public interest, those statements would only not be defamatory if they were made on a true representation of the facts. Thus, he argued, the truth or otherwise of the statements made is relevant. To dismiss the action the court would have to be in a position to accept that the criticisms are based on a substantially true representation of the facts. On the other hand, if a criticism is made on the basis of a misstatement of the primary facts then the statement may still be defamatory even if it is made of a public figure. In this way one loses the protection of the latitude if the criticism is based on a false premise. Mr McIlvride argued that helpful guidance could be sought from the House of Lords' decision in Reynolds v Times Newspaper Limited (2001) 2 AC 127. He referred to the test of responsible journalism there set out. The background to the case was that the allegations against Mr Reynolds were that he had deliberately and dishonestly misled the Irish Parliament. In the speech of Lord Nicholls of Birkenhead (at page 201) a distinction was drawn between statements of opinion on matters of public interest, where readers, viewers and listeners could make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment where those expressly or implicitly indicate in general terms the facts on which they are based and defamatory imputations of fact. With the latter form of statements it was said that those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not and the ability to obtain a remedy if malice can be proved is not normally a sufficient safeguard. Mr McIlvride used this passage to support a contention that the matter had been approached in the House of Lords on the basis that the true factual background should be known and that a comment may be strenuous as long as it is on the basis of a true factual background. Reference was also made to the speech of Lord Cooke of Thorndon who expressed the view that there was no good reason why politicians should be subjected to a greater risk than other leading citizens or any other persons of false allegations of fact in the media. It was said that it would be difficult for the public to form their own view on an alleged defamatory statement if they were misinformed as to the factual background. Even if he was wrong in that said Mr McIlvride, there is a recognised exception to the latitude given to criticising public figures where the statement imputes dishonesty, dishonourable conduct or baseness. He too cited Mutch v Robertson 1981 SLT 217 as authority for that proposition. He accepted that the article related to the pursuer's conduct in a public capacity but argued that it contained a suggestion that the pursuer gave false evidence. The expression "she walked smiling to give evidence against him..." carried with it the suggestion that the evidence the pursuer allegedly gave was untrue. In any event, it was said that the article suggests that the pursuer has behaved dishonourably or through base motives. It infers that she has assisted or collaborated with the Murdoch press in order to further a plot within the SSP directed against Mr Sheridan. That, it was argued was imputing dishonourable conduct from base motives. Thus, the statements within the article may be defamatory and the pursuer was entitled to inquiry.

[20] Mr McIlvride then turned to Mr Dunlop's argument that the statements made attracted qualified privilege as being a fair retort by Mr Sheridan in the absence of any averments of malice by the pursuer. According to Mr McIlvride, in responding to an accusation made against him publicly a party is entitled to fair retort to that accusation even if that retort involves an imputation against the party who first attacked him, but the privilege does not extend to new and defamatory allegations made in the course of the retort. The case of Milne v Walker 1893 R 155 was cited in support of that proposition. Mr McIlvride stated that in that case the First Division took cognisance of the decision in Gray v The Scottish Society for the Prevention of Cruelty to Animals cited by Mr Dunlop but nonetheless took the view that fair retort could only be a response to the allegation made and should not constitute a fresh allegation. Accordingly, if the view was taken that Mr Sheridan's "reply" in fact contained new allegations then the article was not privileged at all and malice did not require to be averred.

[21] Turning to the pleadings, Mr McIlvride highlighted the passage in Article 2 of Condescendence that avers that the pursuer did not provide either party in the case between Mr Sheridan and Newsgroup Newspapers Limited with any assistance in preparing for or conducting the litigation. In relation to the terms of the press release issued on behalf of the pursuer and two other MSPs, Mr McIlvride accepted that the words "we have told the truth" must relate to all three MSPs regardless of whether or not each had in fact given evidence in court. He accepted that the press release made at least two separate allegations against Mr Sheridan, namely that he had committed perjury and also that he had a paranoid imagination in relation to the question of a plot with the SSP. He accepted also that the press release was issued shortly after the jury's verdict in Mr Sheridan's case against Newsgroup Newspapers Limited although he said that the precise timing of its issue was unknown. He queried that the statement referred to in the article was the same statement as that made by the pursuer and the two other MSPs. He did not dispute that the defence of fair retort is open in this case, but argued that Mr Sheridan's retort published by the defenders went way beyond what would normally be recognised as a retort attracting qualified privilege.

[22] Turning to Articles 3 and 4, Mr McIlvride sought to respond to the issues raised about whether or not the term "scab" had a defamatory content. The innuendo attributed by the pursuer to the words used in the article was that she had acted contrary to her professed principles and that in doing so her conduct was dishonourable and lacked integrity. Again Mr McIlvride submitted that whilst political criticism made on the basis of true or accepted facts would not be regarded as defamatory where, as here, a newspaper article sought to infer that the pursuer had collaborated with the defenders in Mr Sheridan's defamation action and given evidence on their behalf the statement was a defamatory because the factual foundation simply did not exist. Even if he was wrong in that argued Mr McIlvride, on the Mutch test the defenders have imputed dishonourable or base motives to the pursuer's conduct. A response to the allegations of perjury and paranoia did not entitle Mr Sheridan to say that the pursuer was dishonourable and a scab. The main complaint of the pursuer is the use of the word scab and its innuendo.

[23] Turning to the question of the statements in the article about the giving of evidence, Mr McIlvride accepted that it is not defamatory to say that someone has given evidence per se, but the context was important given the nature of the action. It was submitted that the averments challenged by Mr Dunlop in his esto submissions were necessary for the pursuer's case in relation to the meaning to be attributed to the statements in the article from which innuendo is to be taken. It was not just a question of whether someone gave evidence. There would be a difference where someone was cited or attended voluntarily or whether they walked into court with so smiling faces. The article indicated that the pursuer had volunteered and was happy to give evidence and that is a necessary step to the innuendo that she is dishonest and a hypocrite. A statement that somebody has given evidence would accordingly, in the context, be defamatory. In Winn v Quillan 1899 2 F 322, question arose as to whether "informer" was a defamatory term. The literal meaning of the term would be simply someone who provided information to authorities, but the court held that it could be defamatory in an Irish context. Although the statements made in this case might not normally be defamatory, in the context in which the pursuer and Mr Sheridan were operating they were. Reference was then made to Cufbart v Linklater 1935 SLT 94, and to dicta from the case of McFarlane v Black and Co1887 14 R 8709 at page 873 cited with an approval therein. In essence that dicta made clear that it was not necessary for a defamatory statement to impute a crime and that a statement may be defamatory if it accuses a person of what is universally considered to be an immoral act or if it imputes conduct which is contrary to the generally excepted standard of honour or propriety amongst the class of persons to which the individual aggrieved belongs. In the context of the group in which the pursuer is parked in this case the accusation made in the article was capable of defamatory meaning. While it was accepted that the word scab must be a comment and could not be taken literally, Mr McIlvride suggested that it was tantamount to the term "informer" in labour circles. It made no difference whether the word political was added before the word scab, the allegation was one of dishonourable behaviour.

[24] Mr McIlvride emphasised the use of the word "scab" on the front cover of the newspapers as what he said was an assertion of fact. The combination of the photograph and the supreme position of the word scab, together with the tone of the piece being favourable to Mr Sheridan would all lead the reasonable reader to appreciate that what was being said by Mr Sheridan and the Daily Record was that they regarded the pursuer as a scab. He accepted that it was for the court to decide whether the statements were comment or assertions of fact but if either interpretation was possible then the matter should be sent for a proof before answer.

The response of behalf of the defender

[25] Mr Dunlop made a brief response, particularly to the issues of privilege and fair retort. He submitted that the issue of fair comment and the question of whether the words in the article were defamatory at all were entirely separate matters. Any issue of the accuracy of the statement related only to fair comment and not to the question of what the reasonable reader would think on reading the words. As the truth or otherwise of the statements is relevant for a defence of veritas or fair comment but not for the meaning of the words themselves the decision Reynolds is not in point in this case.

[26] Mr Dunlop disputed the suggestion that an inference could be drawn from a statement that someone walked smiling into court to the effect that that person had given false evidence. There was no averment on record that the innuendo from walking into court with a smile was perjury. On the matter of fair retort, Mr Dunlop commented that while Mr McIlvride had argued that the privilege had been exceeded, there was no averment on record that Mr Sheridan had gone beyond fair retort. It was clear from Laughton v Bishop of Sodor and Man which was referred to approval in Gray v The Scottish Society for the Prevention Cruelty to Animals that not all statements going beyond what was required for fair retort amounted to malice. Reference was again made to Adam v Wood where it was clear that it is the occasion that was privileged and any argument that the privilege had been over extended would have to be pled. It was plain that Mr Sheridan was responding to an extreme attack against him. Where there were allegations that he was a perjurer, mentally unwell and had imagined a plot, a response to the maker of the statement that she was a political scab was well within the privilege of fair retort. Even if the statement of the SSP United Left could not be included given the pursuer's current position on it, the admitted statement by the pursuer and the two other MSPs was enough. However, if it is the occasion that is privileged then both the United Left Article and the response were all part of the privileged occasion.

Discussion

[27] First I should record that, notwithstanding the various well publicised developments that have followed the jury's verdict in the case raised by Mr Sheridan against News Group Newspapers Limited, neither counsel suggested that this action should not be progressed pending the outcome of other proceedings arising from that case. The argument before me was restricted to looking at the publication of 7 August 2006 on the basis of the situation that pertained at that time, namely that Mr Sheridan had just succeeded in his defamation action and been awarded £200,000 in damages.

[28] In approaching the question of whether the article complained of is defamatory the first step must be to examine what it is averred that the material would be understood to mean. That involves examination of the specific words used and the inference that they are said to bear. Importantly in this context the law is quite settled that the article complained of must be read as a whole. There is no question of an eye catching headline with photographs being sufficient to found a relevant claim for defamation where the text taken as a whole is not defamatory. That much was made clear in Charleston v Newsgroup Newspapers 1995 2 AC 65 at 72-73.

Further guidance on how to approach an issue of this sort can be found in Gillick v British Broadcasting Corporation 1996 EMLR 267 page at pp272-273, a passage cited with approval in McLeod v News Quest (Sunday Harold) Limited 2007 SCLR 555. That guidance is in the following terms:-

"(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 naive 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."

The approach outlined above can clearly be applied to newspaper articles as well as television broadcasts. It is well established that to the guidance must be added the rule that greater latitude in relation to criticisms of those holding public office is allowed. Accordingly it is only where private character is attacked or where there is a suggestion of base or indirect motives that criticisms of those holding public office might give rise to a relevant claim for defamation. The distinction between criticism of public conduct and of private character was clearly emphasised in the case of Mutch v Robertson 1981 SLT 217.

[29] I have considered carefully the whole of the text complained of, from the headline on the front page through to the end of the article in which the photographs of the four MSPs appear. The headline, and its reference to "scabs who tried to ruin me" is eye-catching and certainly suggests that something unpleasant is contained in the article about those complained of. The superimposition of the word "scab" on the photograph of the pursuer supports that. However, the whole tenor of the article is a sharp criticism of the behaviour of the pursuer (and others) in the political scene in which she and Mr Sheridan participated at the time. The term "scab" is given context in the written text where it is clear that what Mr Sheridan was complaining of was what he saw as a betrayal by his former political allies. There are particular passages within the article that explain the context. It begins with a statement that Mr Sheridan was vowing to rebuild his "beloved Scottish Socialist Party" by taking over as leader again. It seems to me that a reader of the article would understand that this was a political party in which there was significant internal strife and where some of the members of the party had spoken out publicly against another member, namely Mr Sheridan. I agree with the submissions of Mr Dunlop that the term scab cannot be taken literally in this context and can only be understood in the political context in which it was used. There is in any event no suggestion in the article that the pursuer is being accused of personal immorality or base motives. What is complained of is political disloyalty and a failure on the part of some of the Scottish Socialist Party MSPs to support Mr Sheridan's cause against what he described as "...one of the most ruthless anti‑union and anti-socialist empires in the world". The focus of the article is the question of the leadership of a political party and the ability or inability of some of its members to work with each other. Accordingly I do not consider that this was an attack on the private character of the pursuer but rather on her political decisions and political loyalties. I have considered whether the article, taken as a whole, would tend to lower the pursuer in the estimation of right thinking members of society generally, or be likely to affect her adversely in the estimation of reasonable people generally. Again, I do not consider that it would have that effect. Right thinking members of society are well able to read an article of this sort and see it as no more than a robust criticism of the pursuer as a former colleague and ally of Mr Sheridan. The reference to the pursuer as a "scab" simply has no context without the detail given of the political plot alleged by Mr Sheridan and the references to collaboration with "the enemy" namely Newsgroup Newspapers Limited. I have taken into account also the greater latitude permitted in relation to criticism of the pursuer given the public office that she held. In my view, it is important to distinguish between the disloyal conduct complained of in the article and any imputation of dishonesty. The criticism made of the pursuer is that she was part of a group within the party who were trying to politically undermine Mr Sheridan. Whether or not she was right to do so is not the issue. What matters is that the rift within the political party in question was a very public matter in which the pursuer and others could legitimately be exposed to criticism.

[30] Accordingly, I do not consider that the article under complaint amounts to defamation of the pursuer.

[31] In any event, even if some of the terms used in the article could be regarded as defamatory, I consider that the article can be characterised as a fair retort to an attack on Mr Sheridan by, amongst others, the pursuer. Accordingly, qualified privilege attached to it. Here the timing and context of the publication is of critical importance. On Friday 4 August 2006 the jury had reached a verdict favourable to Mr Sheridan. The response of the pursuer and others to that verdict was to issue a press release in the terms narrated at paragraph [11] above. Leaving aside the question of the propriety of issuing such a statement in light of the jury's verdict what is clear from its terms is that the pursuer was involved in the issue to the extent that the statement was made in her name together with two MSPs who had given evidence at the jury trial. In that context it was said that they (the three named MSPs) had not wanted to be involved in the court case and that it should never have been initiated. The pursuer did not seek in the statement to distinguish herself from the other MSPs who had given evidence in court. The statement referred to the circumstances in which Mr Sheridan had stood down as National Convenor in November 2004 and alleged that the idea of a plot or "frame-up" of the former leader was an idea that existed only in his paranoid imagination. Contemporaneously with the statement from the three MSPs it is accepted that a statement was issued by the SSP United Left, a faction within the SSP of which the pursuer is a part. While it is not admitted that the pursuer was behind that second statement, I do not consider it necessary in looking at the issue of fair retort to take account of the specific content of the United Left statement, given the terms of the statement to which the pursuer has admitted.

[32] As indicated above, if the article complained of in this case was a reply by Mr Sheridan to the attack being made on him by, amongst others, the pursuer, then the reply is covered by qualified privilege. In this context it is important that it is the occasion which is privileged - Adam v Ward 1917 AC 309. As there are no averments of malice on the part of the pursuer, then if the article attracts this type of privilege it will be fatal to her case.

[33] The argument focused before me in relation to this issue was the restriction of the privilege to a retort rather than using a reply as an opportunity to make new and defamatory allegations. Mr McIlvride cited the case of Milne v Walker 189 R 155 in support of that proposition, while Mr Dunlop relied on the case of Gray v Scottish Society for the Prevention of Cruelty to Animals 1890 17 R 1185 to argue that the Daily Record article could be characterised as fair retort. There was no real dispute that, if the article could be regarded as a fair retort, Mr Sheridan had appropriately used the same medium as that used for the attack itself.

[34] It seems to me that the attack made on Mr Sheridan by the pursuer and the other MSPs in their statement on the Friday was both that he had not told the truth in his defamation action and also that he had, through paranoia, imagined a plot at the hands of his fellow MSPs to undermine him. In the article published immediately after that attackpress release, the first part of the attack is effectively not addressed. No counter-allegations of perjury are made in the article against either the pursuer or any other MSPs. Accordingly the issue of the extent, if any, to which the pursuer actively participated in the defamation proceedings is largely irrelevant in this context. She had clearly aligned herself with those who gave evidence in court in her condemnation of the verdict and of Mr Sheridan's allegation of a plot. What the Daily Record article does do is respond vociferously to the suggestion that the plot is imagined. In particular, one of the passages of the article seems to be a direct reference to the statement made by the pursuer and others on the Friday. It states:-

"The fact that some so-called socialists have strained their voices in condemnation of me rather than in jubilation...

I believe there has been a statement issued by three MSPs that they will not work with me."

These extracts could only be references to a statement made after the verdict of the jury in the defamation action was known. The response being made to the statement seems to be to reiterate the contention that there was a plot, a "cabal" of enemies of Mr Sheridan within the party and to denounce that faction as "political scabs". In what appears to have been a highly charged atmosphere of allegations and counter allegations between Mr Sheridan and his former political allies, it seems to me that the article complained of falls easily within the privilege of fair retort. It is noteworthy that the particular article complained of does not deal with other aspects of the trial or its outcome, its effect on Mr Sheridan as an individual or the impact of the case on his personal life. The article is restricted to a criticism of those who asserted that there was no plot and that Mr Sheridan was in the wrong. I do not consider that the article goes beyond the privilege by making fresh criticisms of a defamatory nature. I cannot accept the submission that walking into court to give evidence with a smile has any defamatory innuendo regardless of whether or not it was accurate. There is some amplification in the retort but nothing in the cases cited to me suggests that the retort must be restricted to a bare denial without emphasis or clarification. There is no reference to Gray v Scottish Society for the Prevention of Cruelty to Animals in the opinion of the Lord President in Milne v Walker. It was not distinguished and the two cases, both of the First Division, must sit side by side. In Gray the specific issue identified by the Inner House was whether a letter of reply exceeded the legitimate limits of a reply and defence against an attack. The reply involved in that case took the form of a reasonably lengthy letter which contained a number of details going beyond a simple denial. In that context the court concluded that the statements complained of did not go beyond what the defenders were entitled to say in reply. In Milne v Walker which involved correspondence to a newspaper, the reply was not restricted to the subject matter of the original attack but contained a new and serious allegation of dishonesty. It is not difficult to see how a different result was achieved in each case. In Gray the response was restricted to the subject matter of the original charge while in Milne v Walker it was not. In this case, had the Daily Record article alleged that, not only did Mr Sheridan deny the statements made by the three MSPs but that he wanted to accuse the pursuer of committing perjury, that might well be characterised as a fresh attack beyond the privilege under discussion. It seems to me that the terms of the article are restricted to criticisms of the pursuer and others for their political activities and political disloyalty during the period of the litigation against NGNL. It contains the robust response to the suggestion that the political plot was a figment of Mr Sheridan's imagination. There is in any event no averment by the pursuer that the response goes beyond the limits of fair retort or that it amounts to malice.

[35] It follows from the conclusions that I have reached on these two issues that I do not consider the pursuer has stated any relevant case against the defenders. It was not disputed that, if privilege attached to the article it would also attach to those who published the privileged article (see Loveday & Son Newspapers Limited and Another [1938] 59 CLR 503).

[36] In reaching the conclusions that I have, I have drawn the distinction between the two different species of privilege as submitted by Mr Dunlop. It seems clear that the case of Reynolds v Times Newspapers Limited 2001 2 AC 127 related to the test of responsible journalism where there are reports on matters of public concern. That type of privilege is pled as a possible defence in Answer 5 (page 23 of the closed record C-D) as an answer to the pursuer's case should it be relevant. It is not necessary for me to address that issue as it is not one for determination at procedure roll discussion. Therefore, the dicta in the Reynolds case about that type of privilege is of no assistance in determining the issue of whether the article complained of here has, taken as a whole, a defamatory meaning and whether as a separate matter, any privilege attaches to it. The privilege that fair retort attracts is dealt with in the Scottish authorities discussed above.

[37] Finally, I would wish to comment on the submissions in relation to the proposed deletions had I found that the pursuer had pled a relevant case of defamation. First, in relation to the averments in Article 5 of Condescendence (page 20D) while I accept the contention of Mr Dunlop that it could hardly be defamatory to state that someone had given evidence in court, those averments could not easily be separated from those offering to prove that the article suggested that the pursuer had been giving evidence in furtherance of a plot against Mr Sheridan which it was accepted would be relevant if the article taken as a whole could be interpreted as having a defamatory meaning. Accordingly I would have been minded, had I been allowing the action to proceed to proof before answer, to allow those averments to remain on record simply as part of the context. However, I do not accept the averment that the term "scab" was being used as an assertion of fact in the article and not as fair comment could have remained. As I have already indicated, the superimposition of the term "scab" on the pursuer's photograph could not possibly be given a literal meaning that she was, physically a "scab". It could only be a comment on the pursuer's political actings and stance and in my view falls well within the definition of comment in Branson v Bower 2001 EMLR 32 as "...something that was or could be reasonably inferred to be, a deduction, inference, conclusion, criticism, remark, observation, etc". Accordingly I would have deleted the averments in Article 5 from page 21B relating to the word "scab" being used as an assertion of fact.

Decision
[38] In light of the decision I have reached I shall sustain the first and fifth pleas in law for the defenders, dismiss the action and shall reserve meantime all questions of expenses.