EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Hardie Lord Kingarth	[2011] CSIH 86 A952/08 OPINION OF THE COURT delivered by LADY PATON in the cause FRANCES CURRAN Pursuer and Reclaimer; against SCOTTISH DAILY RECORD AND SUNDAY MAIL LIMITED Defenders and Respondents: _______

Act: McIlvride; Anderson Fyfe LLP

Alt: R Dunlop, Q.C.; Balfour + Manson LLP

29 December 2011

Introduction

[1] The pursuer is a member of the Scottish Socialist Party (SSP). She has been "actively involved in socialist politics for around thirty years ... At all material times she was a member of the executive committee of the SSP and a member of the Scottish Parliament (an MSP) who had been elected as an SSP candidate. She is widely known throughout Scotland as being associated with the SSP and the policies and political views it promotes" (Article 2 of Condescendence, page 6A-B of the Reclaiming Print).

[2] In a civil jury trial in June and July 2006 Tommy Sheridan, then an MSP and leader of the SSP, sought damages for defamation against News Group Newspapers Limited (NGNL). He alleged that articles in the News of the World had falsely accused him of having visited a "swingers' club", committed sexual indiscretions, and been unfaithful to his wife.

[3] The pursuer was not called as a witness by either party. On 4 August 2006 the jury found in Mr Sheridan's favour, and awarded him damages of £200,000. That same day, the pursuer joined with two other SSP members in issuing a press statement in the following terms (Article 2 of Condescendence, pages 8E-9B of the Reclaiming Print, and Answer 2, pages 13E-15A of the Print):

"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 rewrite 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."

[4] A further statement was issued on 4 August 2006 by the SSP United Left, a group within the SSP founded in June 2006, the pursuer being one of the founding members (Article 2 of Condescendence, page 9A-B of the Reclaiming Print, and Answer 2, pages 15B-26D of the Print). That statement deprecated the fact that Mr Sheridan's "bogus defamation action" had prejudicially affected the SSP, and described the case as an "absolute political scandal" rather than a "sex scandal". The statement commented inter alia that:

"... Tommy Sheridan's supporters have stated that this court case is part of the wider struggle of the labour movement ..."

and that Mr Sheridan had:

"... launched an incredible campaign of disinformation, inside and outside the party, alleging that he was 'done in' by those supposedly jealous of his status, or driven by personal and political ambition."

The statement also said:

"The United Left launched on 11 June 2006 condemns the misguided efforts of those who failed to uphold the truth about our party's history, our minutes, our democratic decisions and the actions of our elected office bearers. They may have done this from a misguided sense of loyalty, but they helped fuel the myth that Tommy Sheridan had been framed - a myth that they knew not to be the case."

[5] In the evening of 4 August 2006 the pursuer spoke to a journalist from The Daily Mail newspaper. She was quoted in that newspaper on 5 August 2006 as saying (Article 2 of Condescendence, page 9A of the Reclaiming Print, and Answer 2, pages 27C-28A of the Print):

"I am not surprised in a way that the jury found the way they did, because everyone hates the tabloids. But there are people who have lied their way through this trial and Tommy is one of them.

If there is any perjury investigation we have got nothing to hide. We have no problem with the police knocking on our door, because we have told the truth ... We are going to have some serious discussions in the party, because we cannot go forward on a pack of lies."

[6] On 5, 7, 8 and 9 August 2006 the defenders published a series of articles in The Daily Record, said to be based on exclusive interviews with Mr Sheridan. Another article appeared in The Sunday Mail on 6 August 2006. In the edition of The Daily Record published on 7 August 2006, a photograph of Mr Sheridan was accompanied by the words:

"I'll destroy the scabs who tried to ruin me", and

"Tommy vows to win back the leadership of Scottish Socialists".

In a summary of the content of the article, it was stated:

"In an exclusive interview with the Record Tommy Sheridan vows to fight for his political future and destroy the SSP 'scabs' who tried to ruin him ..."

Within the article it was stated inter alia:

"[Mr Sheridan] said: ... 'The majority of SSP members have clearly displayed their support for me against News of the World'. But Sheridan stressed he would be unable to work with the people who gave evidence against him.

Enemy

He said: 'There's 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."

The article continued:

"Referring to three MSPs who testified against him, Mr Sheridan said 'Should I stand and be re-elected [as convener of the SSP], then Carolyn Leckie, Rosie Kane, and [the pursuer] and their supporters will have to decide whether they stay in a party led by me. I'm 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 these individuals have declared they'll no longer work with me politically, they stand exposed as political blackmailers trying to hold their party to ransom ..."

The article further added:

"Sheridan says he believed he had a deal by which colleagues would support his legal fight if he quit the leadership. He admitted he was 'naïve' not to suspect a political plot to destroy him ... [Sheridan's] political future depends on whether he senses enough support among the rank-and-file membership, whether he stands, and whether he wins ... he believes the SSP can still be a force in Scottish politics."

Further text can be found in the copy production in the Joint Appendix, and in the Lord Ordinary's opinion.

[7] The newspaper carried photographs of four MSPs, one being the pursuer, with the word "SCAB" in large print superimposed on each photograph.

[8] In November 2008, the pursuer raised an action of defamation against the defenders, averring inter alia that the innuendo contained in the article was that, notwithstanding her professed commitment to socialism and trade unionism, the pursuer had been happy to align herself with, and to assist, the anti-socialist NGNL, in furtherance of a plot to destroy Mr Sheridan's political career, and that in consequence she was a "scab" and a "political scab", failing to act in accordance with her publicly professed principles in a way which was dishonourable, hypocritical and lacking in integrity, all of which was untrue. In particular, the article appeared to suggest that she had given evidence as a witness for NGNL against Mr Sheridan, when she had not (Article 5 of Condescendence).

[9] The defenders lodged defences, inter alia taking a general plea to the relevancy and specification of the pursuer's action, and also a plea of qualified privilege in the following terms:

"5. Separatim. The article complained of being subject to qualified privilege, and not having been actuated by malice on the part of the defenders, the defenders should be assoilzied."

[10] A debate took place. On 26 March 2010 the Temporary Lord Ordinary (M Wise QC) sustained the first and fifth pleas in law for the defenders and dismissed the action. The Lord Ordinary stated inter alia:

"[29] ... 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 ...

[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 ...

[34] ... 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 ..."

[11] The pursuer reclaimed.

Amendment prior to reclaiming motion

[12] Prior to the reclaiming motion, Mr Sheridan was prosecuted in the High Court of Justiciary for perjury said to have been committed during the civil jury trial. On 23 December 2010 he was convicted of perjury, and subsequently sentenced to imprisonment. The pursuer thereupon amended her pleadings. At the end of Article 2 of Condescendence she added inter alia the words:

"... The pursuer's statements that Mr Sheridan had lied when giving evidence to the effect that he had never admitted to his SSP colleagues that he had visited a 'swingers club', were true. They were known by Mr Sheridan to be true. On or about 23 December 2010 Mr Sheridan was convicted, on indictment, of having committed perjury in denying that he had made such an admission. There had been, throughout the course of Mr Sheridan's action against NGNL, considerable ill feeling on his part directed towards the pursuer and her fellow party members who had formed the United Left faction and who had made it clear that they considered Mr Sheridan was acting improperly in pursuing his action in light of the admission he had made to his party colleagues. It is believed and averred that in making the statements concerning the pursuer now complained of Mr Sheridan acted maliciously."

[13] The pleadings were further amended by adding at the end of Article 5 of Condescendence the words:

"Separatim esto the terms of the article amounted to a retort by Mr Sheridan to attacks made on his character by the pursuer, Mr Sheridan knew that the comments made by the pursuer regarding the veracity of his evidence were true. It is believed and averred that the statements made by him concerning the pursuer were actuated by malice. In those circumstances any qualified privilege which would otherwise have attached to the occasion of the publication of the article by reason of Mr Sheridan's statements amounting to fair retort was destroyed. Separatim in those circumstances no qualified privilege attached to that occasion."

The pursuer also added a new Ground of Appeal as follows:

"2(b) Further and in any event, the pursuer offers to prove that insofar as the statements made by Mr Sheridan and published by the defenders were a retort to an attack on his character by the pursuer (i) the pursuer's comments were true; (ii) they were known by Mr Sheridan to be true; and (iii) the retort by Mr Sheridan was made maliciously. On those averments, if proved, any qualified privilege attaching to the occasion on which Mr Sheridan's retort was published was destroyed. Separatim, no qualified privilege attached to the occasion."

Submissions for the pursuer and reclaimer

[14] Mr McIlvride for the pursuer invited the court to allow the reclaiming motion, to recall the Lord Ordinary's interlocutor of 26 March 2010, and to allow the parties a proof before answer all pleas standing. In his submission, there were three issues before the court:

1. Whether the statements made in the article were, or were not, defamatory of the pursuer, taking into account the wide latitude allowed in criticism of those who hold public office.

2. Whether malice on the part of Mr Sheridan deprived the defenders of any qualified privilege enjoyed in relation to his retort to the attacks made on him.

3. Whether in any event the statements made by Mr Sheridan, and repeated by the defenders, exceeded any fair retort to the attacks made on him by the pursuer, and for that reason did not give rise to qualified privilege.

[15] The submissions were presented in seven chapters:

Chapter I: The principal submissions for the pursuer

(1) The Lord Ordinary erred in holding that the statements were not defamatory, either directly or by innuendo. The latitude allowed to criticism of the public conduct of public figures did not extent to criticism premised on a false statement of fact as to that public conduct.

(2) Alternatively (even if proposition (1) were ill-founded), criticism of a public figure was defamatory when it imputed base or indirect motives, and the Lord Ordinary erred in holding that the statements complained of could not be read as imputing base or indirect motives to the pursuer.

(3) Insofar as qualified privilege attached to the occasion of publication by reason of Mr Sheridan's statements being a retort to an attack upon him by the pursuer, the privilege enjoyed by the defenders was derived from or dependent upon the privilege enjoyed by Mr Sheridan. If that privilege were lost by Mr Sheridan by reason of his statements having been actuated by malice, so too was the defenders' derivative privilege lost.

(4) In any event, the Lord Ordinary erred in holding that the statements made by Mr Sheridan amounted to fair retort. A person responding to an attack is entitled to make a robust retort, but qualified privilege does not attach to the occasion if he goes beyond a reply, no matter how robust, to make new or different allegations against the attacker.

[16] Chapter II: Pleadings and opinion

Counsel submitted that the newspaper appeared to think that the pursuer had testified against Mr Sheridan, whereas she had not. There was an innuendo that she had been happy to give evidence against Mr Sheridan, and to align herself with NGNL against Mr Sheridan; and that (as she chose to assist the defenders in their dispute with Mr Sheridan) she should be considered a political scab. A scab was someone who was regarded as "having betrayed the common cause of the employees engaged in [an industrial dispute with the employer]": Article IV of Condescendence, at page 31A-B of the Reclaiming Print. The innuendo was of hypocrisy, betrayal of principles, acting in a dishonourable way for short-term gain - in other words, acting in a reprehensible way in the socialist circles in which the pursuer moved. The Lord Ordinary erred in concluding at paragraph [29] of her opinion:

"... 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."

The Lord Ordinary also erred in concluding at paragraph [31] that the article could be "characterised as a fair retort to an attack on Mr Sheridan by, amongst others, the pursuer", and that accordingly qualified privilege attached to it.

[17] Chapter III: Reynolds v Times Newspapers Ltd

Both counsel accepted that the question whether there was privilege as defined in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 (namely that the reporting had been responsible and objective) could be determined only after a proof before answer. Nevertheless counsel for the pursuer submitted that certain passages in Reynolds were of assistance. Reference was made to Lord Nicholls at pages 203-204; Lord Cooke at page 219B-C; Lord Hope at pages 231C-233C; Lord Hobhouse at page 238A-C. If the innuendo was that the pursuer and others had voluntarily aligned themselves with a leading anti-socialist and anti-trade-union organisation headed by Mr Murdoch, thus betraying their principles for the squalid motive of winning a factional dispute against Mr Sheridan, then it was significant that the factual substratum was inaccurate. All that the pursuer had asserted was that she had told the truth about what was said at the meeting of the SSP committee.

[18] Chapter IV: Whether the statements made in the article were, or were not, defamatory of the pursuer, taking into account the wide latitude allowed in the criticism of those who hold public office

Counsel submitted that there were two strands in the Lord Ordinary's reasoning: (i) The Lord Ordinary analysed the statements as critical of a public figure, and not defamatory. The statements amounted to a public attack, and there was no imputation of dishonesty. (ii) The Lord Ordinary indicated, additionally, that the statements about the pursuer would not tend to lower her in the esteem of the public; they would simply be seen as robust criticisms of someone who happened to be part of an opposing faction within the SSP. The Lord Ordinary had erred in both respects, for the following reasons:

(i) Statements critical of a public figure, and not defamatory

[19] Properly understood, the authorities, while allowing criticisms and comments of public figures, did not extend to a licence to make factually inaccurate statements about a public figure's conduct, and then to criticise the person on the basis of that inaccurate premise. Thus the authorities did not extend to untrue statements of fact. Even if that were not a correct definition of the latitude allowed in the context of criticism of the conduct of a public figure, the pursuer offered to prove that the innuendo in the article amounted to an imputation of a base or indirect motive. That was defamatory. Reference was made to Mutch v Robertson 1981 SLT 217, at pages 222, 225-227; Branson v Bower [2001] EMLR 32, paragraphs 12 and 13; McLaughlan v Orr, Pollock & Co (1894) 22 R 38 at page 39; Waddell v Roxburgh (1894) 21 R 883 at page 885; Steele v Scottish Daily Record and Sunday Mail Limited 1970 SLT 53, at pages 62 and 64; Langlands v John Leng & Co 1916 SC (HL) 102 at page 106; Gatley, Libel and Slander (11^th ed), paragraph 2.33.

[20] In the present case, the pursuer offered to prove that she did not willingly assist the defenders against Mr Sheridan, and that she did not betray the principles she professes by publicly collaborating with the defenders as part of a conspiracy to wrest control of the SSP from Mr Sheridan. In short, she offered to prove that the factual substratum of the defenders' article was entirely untrue, and that imputations that she had acted as a scab, hypocrite, and with dishonesty, were therefore defamatory. The latitude which the law allowed to public figures was not apt to cover what the pursuer offered to prove.

[21] Even if that submission was ill-founded, counsel submitted as an alternative that what was imputed to the pursuer were actings with a base or indirect motive. The pursuer accordingly met the test set in Mutch v Robertson, cit sup.

(ii) Statements not lowering the pursuer in public esteem

[22] The Lord Ordinary had erred in concluding that the terms of the article were incapable of lowering the pursuer in the esteem of the public. The article was capable of being construed as imputing to the pursuer base and indirect motives, acting in a way which was not honest, was hypocritical, and was for purposes undeclared. It must follow that the terms of the article were defamatory. The Lord Ordinary seemed to suggest that all that the article conveyed was that the pursuer had been disloyal in failing to support Mr Sheridan (and that, it was accepted, would not be defamatory). But the terms of the article went much further in suggesting that she collaborated with the enemy, walked smiling into court to give evidence to assist the enemy against Mr Sheridan, and as a result was a hypocrite who had betrayed her political principles: that was defamatory. Reference was made to Winn v Quillan (1889) 2F 322, at pages 323-324; Cuthbert v Linklater 1935 SLT 94, at page 97. As the innuendo was of dishonesty and hypocrisy, there was no need to consider the views held within certain sections of society (such as trade unionists, socialists, labour circles, or other groupings).

[23] In the result therefore the Lord Ordinary had erred in holding that the words complained of were not capable of bearing a defamatory meaning or innuendo. There were relevant averments for a proof before answer.

[24] Chapter V: Privilege, and whether malice on Mr Sheridan's part deprived the defenders of the qualified privilege enjoyed in relation to his retort to an attack made upon him

It was accepted that Mr Sheridan was entitled to qualified privilege in the context of a "fair retort" to the pursuer in the media (including newspapers). However in those circumstances the defenders' qualified privilege was derived from and dependent upon Mr Sheridan's privilege. Counsel submitted that if Mr Sheridan's privilege were lost (because he acted maliciously, knowing that the accusations made against him were true), so too was the defenders' qualified privilege lost. Reference was made to Brims v Peter Reid & Sons (1885) 12 R 1016, at pages 1019-1020; Cooper, The Law of Defamation (1906) pages 162-165; McKercher v Cameron (1892) 19R 383; Adam v Ward [1917] AC 309, at pages 320, 340 and 341. If malice were established on the part of the author of a letter published in a newspaper, the newspaper could be in no better position than the author. It was for the newspaper wishing to rely on the privilege of the person making the statement to investigate that person's motivation. The pursuer offered to prove that Mr Sheridan had acted maliciously, and accordingly the pursuer had relevantly averred circumstances in which the defenders were no longer entitled to the qualified privilege attaching to his retort.

[25] Chapter VI: Whether in any event the statements by Mr Sheridan repeated by the defenders exceeded a fair retort to any attack made on him by the pursuer, and for that reason did not give rise to qualified privilege

For this chapter of his submissions, counsel focused solely upon the "Statement by Frances Curran MSP, Rosie Kane MSP and Carolyn Leckie MSP 04/08/06" referred to in paragraph [3] above, as it was counsel's contention that the pursuer had no responsibility for the longer statement by the SSP United Left referred to in paragraph [4] above.

[26] The only issue was whether Mr Sheridan's reply to the attack exceeded what he was entitled to say by way of fair retort. It was accepted that the retort could be robust: Gray v SSPCA (1890) 7R 1185, at pages 1197-8. Counsel nevertheless submitted that what Mr Sheridan said could not be regarded as a fair retort to the pursuer. The pursuer had accused Mr Sheridan of being a liar. Mr Sheridan had not denied or rebutted the charge against him, but had made new allegations, with the innuendo that the pursuer was a traitor to the SSP cause, a hypocrite, and acting dishonourably. That went beyond fair retort. However robust the retort might be, there was no entitlement to make entirely new allegations which were defamatory: cf Milne v Walker (1983) 25R 13, at pages 157-159. Mr Sheridan was entitled to deny being a liar, but was not entitled to move on to further unrelated allegations. In answer to a question from the bench, counsel conceded that if the proper construction of Mr Sheridan's retort was that the pursuer was part of a conspiracy within the SSP intent on bringing him down, and advancing themselves, that would not be defamatory. But Mr Sheridan's comments accused the pursuer of being prepared to collaborate with, and to assist, the enemy of socialism, in order to get her way. The innuendo was of hypocrisy, and that went beyond the bounds of fair retort.

[27] Chapter VII: A passage in the pursuer's pleadings not admitted to probation

At paragraph [37] the Lord Ordinary decided that, had she allowed the case to go to proof, she would have deleted the averments in Article 5 from page 21B relating to the word "scab" being used as an assertion of fact. That decision was challenged. However counsel for the defenders was willing to concede that the passage remain in the pleadings in the event that a proof before answer was allowed.

[28] Counsel concluded by renewing his motion that the court should allow the reclaiming motion, recall the Lord Ordinary's interlocutor of 26 March 2010, and to allow the parties a proof before answer all pleas standing.

Submissions for the defenders and respondents

[29] Senior counsel submitted that the appeal should be refused, and the decision of the Lord Ordinary adhered to. There were three issues: (a) whether the words had a defamatory meaning; (b) whether qualified privilege applied, on the basis of "fair retort"; and (c) what relevance, if any, did the alleged malice on the part of Mr Sheridan have.

(a) Defamatory meaning

[30] The submissions for the pursuer confused two separate and distinct questions: (i) whether or not the words complained of were defamatory; and (ii) whether or not the words complained of were fair comment.

[31] In relation to the first question, only if the words were capable of a defamatory meaning was the question of "fair comment" relevant: Gatley op cit paragraph 2.33; Mutch v Roberton cit sup; McLaughlan v Orr, Pollock & Co cit sup. The pursuer maintained that different considerations applied if the statement was false: but whether or not a comment was true told one nothing about whether the statement was defamatory. The discussion in Reynolds v Times Newspapers Ltd cit sup focused upon whether or not a species of qualified privilege should evolve: but not upon whether or not certain words were defamatory of an individual. The Lord Ordinary had correctly distilled and followed the law set out in cases such as Mutch v Robertson, and had correctly applied the law relating to the meaning of words and whether they were defamatory. The Lord Ordinary also derived support from the dicta of Lord Macphail in Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555, at page 559. In assessing whether words were defamatory, it was important to bear in mind the latitude permitted by the law in discussions about the public actions of someone in public life: cf Godfrey v W & D C Thomson (1890) 17 R 1108, at page 1113. In the present case, all that existed was an accusation of political disloyalty. That was not actionable. Everyone had the fundamental freedom to comment openly and without restriction upon the political activity of people in public positions: McLaughlan v Orr, Pollock & Co cit sup. Only if there were allegations of criminal conduct, dishonesty or immorality would a defamation action have some chance of success. No such imputations could be found in this case. The correct distillation of the content of the article was contained in the Lord Ordinary's analysis at pages 65-66 of the Reclaiming Print. Mr Sheridan's carefully-worded riposte concerned politics. Both the law of Scotland and the Strasbourg jurisprudence were consistent with the decision in Mutch cit sup. The latitude permitted in the criticism of a politician was discussed in Lingens v Austria
[1986] 8 EHRR 407, paragraphs 41 and 42. Those paragraphs echoed what Lord McLaren said in McLaughlan v Orr, Pollock & Co cit sup in the 1890s. Similar guidance was contained in Dlugolecki v Poland 24 February 2009, European Court of Human Rights, Application no. 23806/03, paragraphs 34, 35 and 37. The Lord Ordinary stressed (correctly) the repeated references to political matters in Mr Sheridan's comments. His complaint was one of political disloyalty. Mr Sheridan's trial involved politics and the law, and to suggest that the media could not report what Mr Sheridan said in the light of his success at the jury trial would result in a palpable restriction of freedom of expression wholly inconsistent with authority both in domestic law and European law.

[32] A subsidiary issue was the question of defamation within a particular group. In that context, the decision in Winn v Quillan cit sup did not provide any authority, as the person concerned was not a public figure. The question was not whether the words would render the pursuer obnoxious to a limited class, but rather whether the imputation would tend to lower the pursuer in the estimation of right-thinking members of society generally: Gatley, op cit, paragraph 2.10.

[33] The article as a whole was a political attack. The suggestion was that the pursuer had failed to maintain her political principles. It was the political conduct of the pursuer which was under attack.

(b) Whether qualified privilege applied, on the basis of "fair retort"

[34] There was no dispute that Mr Sheridan had been publicly attacked by the pursuer. The only questions were whether he had stepped beyond the robust response to which he was entitled, and if so, what effect that had. It was clear on the authorities that Mr Sheridan was entitled to make forceful statements: Laughton v Bishop of Soder and Man 1872 LR, 4 PC 495, at pages 505 and 508. A wide tolerance and a great latitude was allowed: Gray v SSPCA cit sup at page 1198; Adam v Ward [1951] AC 309, at pages 330, 334-335, 339. The riposte should not be weighed on too fine a scale. Mr Sheridan had not gone beyond such a response. The background to the response was the pursuer's admission that, on the day the jury found in Mr Sheridan's favour, the pursuer, Miss Kane, and Miss Leckie put out a statement in the terms quoted in paragraph [3] above. The pursuer also admitted that she gave an interview to The Daily Mail, reported on 5 August 2006. Senior counsel was content to proceed on the basis of the pursuer-Kane-Leckie statement, and the interview with The Daily Mail. The pursuer accused Mr Sheridan of lying, of perjury, and of conducting a misguided litigation. She maintained that her version of events was the true one; that she, Miss Kane and Miss Leckie required to make the statement to protect the democracy of the party; that any assertions of a political plot were untrue; that Mr Sheridan was guilty of paranoia; and that her way forward was the only way forward for her party. The following Monday, the defenders carried Mr Sheridan's response. It was plainly a response to the attack by the threesome. Mr Sheridan was saying (in response to the defence of democracy and the party to moving forward on the basis of truth) that he found it difficult to work with people he considered to be collaborators with the defenders, with a political sub-text. While the pursuer claimed that there was no plot, Mr Sheridan responded by saying that it would be naïve not to suspect a political plot to destroy him. While the authorities did not demand a precise congruence between the attack and the retort, if such congruence was needed, it certainly existed in this case. The Lord Ordinary's summary at paragraph [34] of her opinion was entirely accurate. If that summary was correct, the whole basis of the challenge to qualified privilege failed.

[35] If Mr Sheridan were held to have exceeded the parameters of fair retort, the weight of authority suggested that such an excess did not matter: cf Adam v Ward cit sup, Lord Dunedin at page 326; Horrocks v Lowe [1975] AC 135, Lord Diplock at page 151 B-H; Frazer v Mirza 1993 SC (HL) 27. The true analysis was that even if it was correct that Mr Sheridan had overstepped the limits, that did not mean that the occasion was not privileged: the excessive response was merely relevant in relation to malice, as malice would destroy Mr Sheridan's privilege whatever its parameters.

(c) What relevance, if any, did alleged malice on the part of Mr Sheridan have

[36] Senior counsel accepted that the pursuer's averments about malice were relevant for an inquiry concerning Mr Sheridan. However the pursuer did not offer to prove malice on the part of the newspaper: thus any malice on the part of Mr Sheridan was irrelevant. Brims v Peter Reid & Sons cit sup did not provide authority for the concept of transferred malice. The ratio at page 1021 was that a newspaper publishing an anonymous letter cannot plead privilege, because the anonymity precluded the court from assessing whether or not privilege attached. The dicta relied upon in Adam v Ward cit sup were obiter; also the circumstances were unusual in that there, an agent was responsible for the actions of his principal. No other case cited suggested that malice was transferable. Since 1913 there had been no Commonwealth authority supporting the doctrine of transferred malice. If the pursuer's line of argument were correct, newspapers would be placed in an impossible position. How were they supposed to know that the individual was motivated by malice?

[37] Counsel referred to Egger v Viscount Chelmsford [1965] 1 QB 248, Lord Denning at pages 258 to 264; and Lords Davis and Harman. Egger had stood for 46 years, without being criticised or overturned. Egger had been adopted in Gatley, Libel and Slander (11^th ed), paragraphs 17.22, 17.24, and 17.25. The author(s) took the view that the same principles would apply in the present case. Any relevant Commonwealth authority took the same view: Hart v Wrenn and Australian Broadcasting Corporation [1995] NTSC 107, paragraphs 343 and 367; Roberts v Bass, 2002 CLR 1 (where all the justices except Callinan J did not support transferred malice), paragraphs 22, 32, 34, 38, 45-47, 118-120, 180-183; Bass v TCN Channel Nine [2003] NSWCA 118 (where the broadcaster was held to have known that what was being published was false), paragraphs 75-77, 150, 154; Cornwall v Rowan, judgment of the Full Court, 24 November 2004, pages 116-118, 174, 181; McLeod v Jones [1977] 1 NZLR 441, page 444; Paul v Cheng [1998] HKCFI 1033; Irene Adams v Guardian Newspapers Limited 7 May 2003 (Lord Reed). There was thus a uniform approach in the Commonwealth, in Australia, in New Zealand, in Hong Kong - all adopting Egger, and concluding that there could be no "cross-infection" of malice.

[38] Cassel & Co Ltd v Broome [1972] AC 1027 was a House of Lords case involving seven judges. There it was held that where there were two defenders, one malicious, the other not, the latter was not to be saddled with the consequences of the malice of the former.

[39] Section 4 of the draft Defamation Bill relevant to England and Wales was consistent with defenders' position: in particular the proposed section 4(6) brought in a "knew or ought to have known" test for the defence.

[40] Scots law was to the same effect as Commonwealth law: Keay v Wilson (1843) 5 D 407, at page 409; Aiken v The Caledonian Railway Company 1913 SC 66 at page 71; Gordon and Maria Thomson v Sheriff Kenneth Ross 18 July 2000, Lord Eassie, paragraphs [60] to [62].

[41] Senior counsel finally submitted that an examination of the authorities, starting with Egger cit sup, traversing the Commonwealth, and returning to Scotland, spoke with one voice. Malice was a personal attribute, and did not transfer. Whether or not Mr Sheridan was malicious was therefore nothing to the point when considering a case against The Scottish Daily Record or The Sunday Mail.

[42] In conclusion (i) what was said was not defamatory; (ii) in any event, privilege attached and the parameters had not been overstepped; (iii) even if the parameters of privilege had been overstepped, that only went to demonstrate possible malice on the part of Mr Sheridan, and was irrelevant in a question with the defenders. The Lord Ordinary had not erred (other than to have been over-generous to the pursuer when suggesting that the position might have been different if Mr Sheridan had accused the pursuer of being a liar: Mr Sheridan was quite entitled to riposte in such a way, but he had not done so). The reclaiming motion should be refused.

Discussion

Defamatory meaning

[43] Mr Sheridan characterised his dispute with NGNL as a political struggle, in which he represented the ideals and goals of socialism which NGNL sought to oppose and undermine. The articles about his private life were, according to Mr Sheridan, a concoction of lies being used by those politically opposed to him in order to undermine his political leadership and standing in the community, and to bring his political career to an end. He made it clear to everyone that he was looking for loyalty, commitment, and support against the forces of anti-socialism. He in effect asked everyone, in particular his fellow members of the SSP, for total political loyalty, support and solidarity, a necessary part of which comprised a wholesale denial of all the prejudicial allegations concerning his private life, a united front when reporting what had happened at the SSP meeting in November 2004, and a wholehearted support of his account of events (as opposed to NGNL's).

[44] On one view, the jury's verdict demonstrated such solidarity and support. By contrast, the pursuer's contemporaneous public press statements did not, for in those statements she accused Mr Sheridan of lying in the course of the civil jury trial, and in effect, by referring to "the minutes of our party which record the truth about Tommy Sheridan's standing down as National Convener in November 2004", of having admitted, at the SSP meeting, that he had done what was described in the relevant parts of the press articles. Mr Sheridan's response was to accuse the pursuer publicly of political disloyalty and of being a "scab". In that context, the name "scab" would in our view be understood by the public as someone who had failed to support a cause (often involving striking workers or trade unions) - on this occasion, the cause being Mr Sheridan and socialism. In the article in question, in the context of Mr Sheridan's dispute with NGNL, the pursuer's actings were characterised as a failure to be politically loyal to Mr Sheridan and a failure to support the cause of socialism.

[45] There is a clear line of authority in Scottish law to the effect that a wide latitude is allowed to comment and criticism in the political and public sphere. In the late 19^th century, Lord Shand observed at page 1113 of Godfrey v W & D C Thomson (1890) 17 R 1108:

"... I think that in these times persons must be allowed to speak pretty freely of public political conduct and principles ..."

In the same case, Lord McLaren stated at page 1114:

"In considering cases such as the present - actions of damages against newspapers of public speakers for defamation - it is to be remembered that it is the privilege of every citizen to express his opinions freely regarding the public acts and utterances of his fellow-citizens. It is sometimes said that everyone who occupies a public position invites such criticism, and it will not, I think, make the criticism actionable that it is uncourteous, or even offensive or vituperative, provided it amounts to nothing more than an expression of opinion on a matter of public concern ..."

[46] In McLaughlan v Orr Pollock & Co (1894) 22R 38 at page 42, Lord McLaren noted that the issue in slander was:

"... the imputation of something which is criminal, dishonest, or immoral in the character or actions of the person aggrieved ... It is hardly necessary to point out that the constitution of this country tolerates the utmost freedom in the discussion of the conduct and motives of those who take part in its public business, whether in the higher plane of statesmanship or in the conduct of local affairs ... It is only when 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 ..."

[47] Lord McLaren further emphasised the distinction between the public and private capacity of an individual in Waddell v Roxburgh (1894) 21 R 883 at page 885:

"... [it] is well recognised in practice that a different and stricter standard of construction is to be applied to calumnious expressions affecting a person in his business relations from that applied to expressions used of the same person in his public capacity. We have discouraged actions of damages directed against public men for language used by them whether in the more important field of general politics or in regard to the administration of municipal affairs, or even of charitable societies. No doubt language used of a public man may be libellous, as, for instance, if one were to accuse a member of Parliament of having obtained his seat by bribery, but such accusations are rarely made, and, as has been often observed, there is practically no limit to the language that may be used in public controversy except that which is imposed by good taste and good feeling towards an opponent."

[48] Similarly Lord Justice Clerk Aitchison in Cuthbert v Linklater 1935 SLT 94 at page 97 confirmed that:

"... a statement may amount to a libel 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 accepted standard of honour or propriety amongst gentlemen - amongst the class of persons to which the individual aggrieved belongs."

[49] As was observed by Lord Kissen in Mutch v Robertson (1981) SLT 217, at page 222:

"[When considering] the question whether [an article is] capable of having a defamatory meaning, [the] test is what the words complained of would mean to the ordinary man, and what the ordinary man without special knowledge would infer from them ... In applying that test to words used about a person in respect of his holding a public office, some latitude has been allowed to those who make criticisms of such a person ... [In this case,] the remarks about the pursuer ... related to his conduct in his public capacity only, and not to his conduct in his private life."

At page 223, Lord Kissen went on to say:

"I think that the defenders' submission is correct and the test to be applied to [the statements] is that they are capable of bearing a defamatory meaning if an ordinary man could reasonably infer from them that the pursuer was dishonest or was guilty of dishonourable behaviour or if his public conduct was combined with the suggestion of base or indirect motives."

See too Viscount Haldane in Langlands v John Leng & Co 1916 SC (HL) 102, at page 106 et seq; Gatley, Libel and Slander (11^th ed) paragraph 2.33.

[50] The question whether the statement is capable of bearing a defamatory meaning is not affected by inaccuracies in the statement. As Lord Reed said at paragraph [5] of Irene Adams v Guardian Newspapers Limited, 7 May 2003:

"... The issue is whether the imputation contained in the words complained of would tend to affect the pursuer adversely in the estimation of others. The truth or otherwise of the imputation is not germane to that question; and the falseness of a defamatory imputation does not deprive it of its defamatory character."

[51] Strasbourg jurisprudence also emphasises the latitude given to statements about public figures and political matters. In Lingens v Austria (1986) 8 EHRR 407, at paragraph 41, the European Court of Human Rights observed:

"In this connection, the court has to recall that freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to 'information' or 'ideas' that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no 'democratic society'.

These principles are of particular importance as far as the press is concerned. Whilst the press must not overstep the bounds set, inter alia, for the 'protection of the reputation of others', it is nevertheless incumbent on it to impart information and ideas on political issues just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them ..."

[52] In Dlugolecki v Poland, 24 May 2009, Application no 23806/03, the European Court further stated:

"35. The limits of critical comment are wider if a public figure is involved, as he inevitably and knowingly exposes himself to public scrutiny and therefore must display a particularly high degree of tolerance (see Lingens v Austria ...) ...

37. ... In the context of a public debate the role of the press as a public watchdog allows journalists to have recourse to a certain degree of exaggeration, provocation or harshness ..."

[53] Against that background, we turn to assess the averments in the present case. In our opinion, Mr Sheridan's response as reported in the article contained neither direct defamatory comments nor any of the defamatory innuendo suggested by Mr McIlvride (such as base, dishonourable, or dishonest motives, or hypocrisy). The response was a criticism of someone - in this case a member of the SSP - who had, in Mr Sheridan's view, failed to give him the political support and loyalty he needed in a political battle. Such criticism of public conduct in the context of a political struggle, even if strongly worded ("scab") and even if not always entirely accurate (as there was an apparent misunderstanding about whether or not the pursuer had actually given evidence at the trial), in our view falls well within the latitude permitted by the law where comments are made about persons acting in their public capacity. In particular, we are not persuaded that the article would lower the pursuer in the esteem of right-thinking members of the public. The public were well aware of the nature of Mr Sheridan's dispute with the NGNL. As was noted by Lord Macphail in Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555 (quoting Neill LJ in Gillick v BBC [1996] EMLR 267):

"... (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 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 ...".

In our view, the readers of the article would appreciate that they were witnessing a political skirmish, with warring factions within the SSP and diametrically opposed views about how the party and its members should conduct themselves, including a characteristically forthright public berating by Mr Sheridan of those who, in his view, had failed to give him the unquestioning public and political support he needed in whatever way he demanded and at whatever personal cost to the individual.

[54] In the result, we are not persuaded that the article dated 7 August 2006 was defamatory of the pursuer.

Whether in any event qualified privilege applied, on the basis of "fair retort"

[55] For present purposes, we leave out of account the statement issued on 4 August 2006 by the SSP United Left, as there is a dispute concerning the pursuer's responsibility (if any) for that statement.

[56] Mr Sheridan was undoubtedly attacked and criticised by the pursuer in the media in (i) her joint statement issued on 04/08/06, and in (ii) her interview with a journalist on the evening of that date (and published the next day, 5 August 2006). The pursuer called Mr Sheridan a liar, someone who had lied on oath in court (i.e. committed the crime of perjury), someone who had dragged the SSP through a court case, lying all the way, someone with paranoid imaginings that there was a plot to frame him. These were clearly serious allegations.

[57] Mr Sheridan was therefore in law entitled to give a robust response: cf Gray v Scottish Society for the Prevention of Cruelty to Animals (1890) 7R 1185, at page 1198 (Lord Shand quoting Odgers, Libel and Slander, at page 232):

"... communications made in fair self-defence are privileged. If I am attacked in a newspaper, I may write to that paper to rebut the charges, and I may at the same time retort upon my assailant, where such retort is a necessary part of my defence, or fairly arises out of the charges he has made against me. A man who has himself commenced a newspaper war cannot subsequently come to the court as plaintiff, to complain that he has had the worst of the fray ... the privilege extends only to such retorts as are fairly an answer to the plaintiff's attacks."

[58] Lord McLaren commented at page 1200:

"... it is the privilege of every citizen to express his opinion freely in matters which have been brought before the public, and that is specially true when a person is writing to a newspaper to defend himself against charges affecting his own character and conduct. Great latitude must be allowed to a person so put on his defence and endeavouring to meet the case which has been brought against him..."

[59] In the present case, Mr Sheridan did not respond by calling the pursuer a liar. He focused instead upon the main themes underlying his whole campaign, namely socialism against anti-socialist forces epitomised by NGNL; his hope and belief that he would be wholly supported by fellow socialists, and in particular by members of the SSP; the fact that the pursuer had (so far as he was concerned) demonstrated political disloyalty both to him and to his socialist cause - which in his eyes qualified her as a "scab"; and his resulting anger and disappointment, with the caveat that he and the pursuer might find it difficult to work together in the SSP in the future.

[60] In our view, that retort, in the circumstances, came within the parameters of "fair retort". Thus the defenders were entitled to qualified privilege on the occasion that they reported that retort.

Whether any malice alleged on the part of Mr Sheridan has any relevance

[61] For the purposes of this question, we assume that the pursuer would be successful in proving malice on the part of Mr Sheridan (although clearly, malice is denied).

[62] We are not persuaded that there is either principle or precedent to support the pursuer's contention that the defenders' qualified privilege was derived from and was dependent upon Mr Sheridan's privilege, and that if Mr Sheridan's privilege were lost (because he acted maliciously, knowing that the accusations made against him were true) so too did the defenders lose their qualified privilege.

[63] In the context of precedent, we accept that Mr Dunlop's full citation of authority, noted in paragraphs [37] to [40] above, discloses no support for the pursuer's proposition in any case report, text-book, or article. Neither, in our view, did the authorities cited by counsel for the pursuer. Brims v Peter Reid & Sons and McKercher v Cameron, cit sup, concerned the publication of an anonymous letter in a newspaper, and the court's view that "it is impossible to allow the defence of privilege in a case where the libel is an anonymous letter in a newspaper, and the writer is undisclosed". Cooper, The Law of Defamation (2^nd ed) pages 163 and 165, simply provided a commentary on those two cases. As for Adam v Ward, cit sup, there it was decided that an agent who obeyed his principal's command to publish a libel was able to benefit from any privilege enjoyed by his principal: but those circumstances are very different from the circumstances in the present case, where Mr Sheridan was not the "principal" and NGNL were not his agents, simply carrying out his orders. On the contrary, the owners, editors, and other staff at NGNL were in control of the decision whether or not to publish the information obtained from Mr Sheridan.

[64] Quite apart from the lack of precedent, we consider that there is no support in principle for the pursuer's proposition. Malice on the part of an individual is not necessarily easy to detect. Accordingly, to deprive a newspaper or other publishing medium of the defence of qualified privilege because the individual whose views were reported is subsequently proved to have been motivated by malice would, in our view, place too heavy a burden upon the publisher.

[65] In all circumstances, we reject the pursuer's contention that malice on the part of Mr Sheridan would deprive the defenders of any qualified privilege enjoyed by them in relation to the occasion of publishing Mr Sheridan's response to the attacks made on him.

Conclusions

[66] We summarise our conclusions as follows:

Whether the article had a defamatory meaning

[67] For the reasons given in paragraphs [43] to [54] above, it is our opinion that the article complained of did not have a defamatory meaning. We therefore agree with the conclusions reached by the Lord Ordinary in paragraphs [29] and [30] of her Opinion.

Whether in any event qualified privilege applied, on the basis of "fair retort"

[68] For the reasons given in paragraphs [55] to [60] above, we consider that Mr Sheridan's response comes within the parameters of a fair retort, and that qualified privilege applied to the occasion of the publication of the article. We therefore also agree with the conclusion reached by the Lord Ordinary in paragraphs [31] and [34] of her Opinion.

Whether the malice alleged to have motivated Mr Sheridan has any relevance

[69] For the reasons given in paragraphs [61] to [65] above, we are not persuaded that any malice on the part of Mr Sheridan (if such could be proved) has any relevance for the present case. In particular we are not persuaded that, if Mr Sheridan was proved to have acted out of malice, the defenders would lose the defence of qualified privilege.

Decision

[70] We shall refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary dismissing the action. We reserve the question of expenses to enable parties to address us on that matter.