Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 126
A189/11	OPINION OF LORD MATTHEWS in the cause R A H Pursuer; against M H Defender: ­­­­­­­­­­­­­­­­­________________

Pursuer: Heaney; Morton Fraser LLP

Defender: Party

1^st August 2012

[1] In this action the pursuer seeks interdict against the defender, or anyone on his behalf, from defaming him and in particular from repeating or distributing material repeating, or by other means publishing, statements that he acted dishonestly or unprofessionally or maliciously (or any combination or them) when preparing a child welfare report in relation to family proceedings in Jedburgh Sheriff Court in 2004. Interim interdict was granted on 14 April 2011. The pursuer also concludes for payment of the sum of £150,000 sterling with interest, by way of damages, and the expenses of the action.

Background
[2] The pursuer is a solicitor in the Borders. By interlocutor dated 30 January 2004 pronounced at Jedburgh Sheriff Court he was appointed to investigate and report on the welfare and circumstances of the children of the parties to a divorce action. The defender in that action was the current defender's son, the children therefore being his grandchildren. Having made certain investigations and interviewed the defender on 24 February 2004, the pursuer submitted his report to the court on 4 March 2004. It is now accepted that the report contained certain inaccuracies. Broadly speaking, the pursuer contends that these were innocent mistakes, while the defender's position is that these were malicious lies. After the report was submitted the defender instructed solicitors, who wrote to the pursuer, in terms which I will hereafter indicate, calling upon him to amend his report. That matter was reported to the Sheriff Principal in due course. He wrote to the solicitors and they took no further action. The defender, however, pursued a number of avenues which culminated in his distributing a handbill in the Borders area on or about Sunday 10 April 2011. I will set out the terms of the handbill in due course but broadly speaking they were to the effect that the pursuer was a liar who knowingly supplied false and, in the defender's opinion, malicious information to the sheriff. It is the distribution of that handbill which has given rise to the current proceedings.

[3] The full nature of the defender's complaints will become apparent but I should say that at the outset that one of the complaints was in relation to a statement in the report submitted by the pursuer that the defender "was seen by Social Workers but told not to put himself at risk of further allegations merely as a precaution". By minute of amendment sent to the defender one week before the proof the pursuer sought to amend the Record by inserting an averment that that statement was "included in the report and ought not to have been. It was included in error".

[4] I should say also that that minute of amendment also covered certain material in condescendence 9.

[5] As that article of condescendence stood it was in the following terms:

"The Pursuer has suffered injury to his feelings, standing and professional reputation as a result of the distribution by the Defender of the false and defamatory statements. The statements caused and continue to cause distress. The Pursuer's estate agency business is well known in the Scottish Borders. The Pursuer's name is that of the business. His reputation is important to the business. At the time of reading the action it is not possible to quantify the extent of any loss to the Pursuer's earnings".

[6] The minute of amendment sought to delete the last sentence thereof and substitute therefore the following: "Any damage to his business being difficult to quantify, the Pursuer seeks solatium only".

[7] The pursuer also sought to lodge certain productions. The defender did not oppose the lodging of the productions but he objected to the minute of amendment.

[8] I was satisfied that the minute of amendment operated in the defender's favour and I allowed the Closed Record to be amended in terms thereof, reserving all questions of expenses. A Joint Minute to the effect that copies were equivalent to original documents and that documents were what they bore to be, whereupon evidence was led.

The Evidence
[9] The pursuer gave evidence on his own behalf. He said that he was 53 years of age and was a solicitor and estate agent, having been admitted in 1981 or 1982. He worked with a number of firms including Brechin Robb and McGowan's in Dumfries, where he did court work and some family work. In 1984 moved to a firm in Kelso now known as Tait's WS. He started the court and family law department in that firm. He stayed with them until he was 40 then set up his own firm, H & Co in Kelso. He did exclusively family work with the new firm. Around 1988 as the firm progressed he took on another partner for conveyancing work and the firm's practice became more general. He became involved in property and estate agency, although he still did some family work and was the treasurer of the Family Law Association. Around 6 years ago he took on an assistant to do court work. At present his estate agency had around 200 houses on the market and also had a significant letting business. The firm name was on the posters outside the houses with which the firm dealt. He was a member of the executive of the local solicitors property centre and along with another firm they had the largest part of the solicitors' estate agency business in the Borders, where there were 25 firms or so. The firm advertised in the press and in the Borders Solicitors' Property Centre Journal on a fortnightly basis. His name was mentioned in that and his properties tended to be the higher value ones. The firm's name and logo appeared on the front inside cover with the list of the main member firms. He was keen on publicising his firm. In Kelso his firm had a legal office, a property shop and a letting office under the name of Borders Country Lets, using the firm's logo and there was also an office on the A7 in Selkirk in a prominent position with his name in large letters on the signage. They sold and let almost exclusively in the Borders but also in Northumberland. The business extended from Eyemouth to Peebles and beyond and also in the area around Lauder, Lammermuir and Hawick. It was well known in the Borders. Reputation and professional standing were exceptionally important in the Borders. For recreational purposes he would go to musical events. He played a guitar and sang in folk clubs. He also played golf and was a member of the Hirsel and Minto Golf Club.

[10] 6/31 of process was the interlocutor appointing him to report in the case of

PH v HJH, dated 30 January 2004. 6/7 of process was a letter from Colin A McNab, Solicitor of Andrew Haddon & Crowe, WS, the solicitors for the pursuer in the sheriff court case. That letter enclosed a copy of the initial writ and gave certain information about the case into which I need not go for present purposes. Inter alia it gave details of the pursuer in that case and her partner as well as other potential interviewees so that the pursuer in the instant case could make arrangements to see them. The penultimate paragraph of the letter is in the following terms:

"There is one matter which may be of no moment but about which you should be aware. There were allegations some three years ago about Mr H's father having interfered with K in some way. The matter did not proceed to a prosecution but there was Social Work Department involvement. It would appear that there is some kind of dictat that K should not be left alone in the company of her grandfather".

[11] K was one of the children in respect of whom the pursuer had to report. The pursuer in the sheriff court case liked to be known as PB and will be referred to as such hereinafter.

[12] The pursuer said that in 2004 he had had a lot of experience in dealing with reports including attendance at seminars. He enjoyed family work.

[13] The report was to be distributed to the parties' solicitors. It was not intended that it be distributed more widely. It was at a very early stage of the proceedings in connection with interim measures and would not be dispositive of the case. It was envisaged that the clerk would assign a further interim hearing to allow agents to make further submissions as they sought fit and it would be for the sheriff to make any further decisions. The letter from Mr McNab indicated his version of what the issues were and also indicated that the defender's solicitor was a Mr Iain Burke. 7/6 of process was a letter dated 6 February 2004 from the pursuer to Mr Burke seeking to ascertain the defender's position. The final paragraph of that letter is in the following terms:

"There is one further matter of a delicate nature that I have been alerted to. I am told that some allegations were made against the Defender's father in connection with the child K and while that did not proceed to a prosecution there was some form of social work involvement. I am advised that there was some form of dictat that K should not be left alone in the company of her grandfather and clearly that is something that I may need to discuss with Mr H and it is only fair that I let you know that the issue has been raised and if you have any relevant information it would be helpful if you could provide this".

[14] The pursuer also wrote to the Reporter to the Children's Hearing. In addition, he made two or three phone calls, sent a reminder letter to Mr Burke on 18 February and then received a reply dated 19 February 2004, which is 6/9 of process. The letter dealt generally with the merits of the sheriff court action from the perspective of the defender in that case and went on:

"He is also worried about a number of incidents of injuries which K has received although there are always explanations of a kind tendered. The incident you mentioned in relation to his father, K's grandfather, I presume must relate to an incident around four years or so ago when an allegation was made by P. This was investigated by the police who basically found out that there was nothing to support the allegation. The allegation came immediately after my client raised concerns of a hand print on K's bottom which had obviously come from a smack of considerable force and he was very concerned about it. He raised this with P and within days thereafter the police were calling at his father's house regarding an allegation. As I say the investigation found absolutely nothing untoward and nothing has ever been heard about it again".

The letter then invited the pursuer to speak to the child if he had not already done so.

[15] By this stage the pursuer had spoken to the child's mother and her witnesses. He had also written to the Reporter and the Social Work Department. 6/2 was the report he submitted dated 4 March 2004. It was posted to the sheriff clerk on 5 March and copied to the parties that day. The report indicated that he had spoken to the pursuer, PB, the maternal grandmother, the pursuer's partner EAB, the children KLH and HJH, the maternal grandfather, the defender, the defender's mother, the defender's father (the defender in the current action), the head teacher at the relevant primary school and the Reporter. He had received a letter from the Reporter and a later letter from the Child Protection Officer. At page 3 of the report there appears the following paragraph:

"I also asked Miss B about concerns to which I had been alerted by the pursuer's solicitors regarding Mr H's father. Apparently K had made some comment which had given rise to concerns which she had passed onto the Social Work Department. These were investigated and both parents called to a meeting but no further action was required. She understood that the Social Work Department had indicated that in the circumstances K should not be left alone in the company of her grandfather. There does not appear to have been any problem in the intervening years and Miss B was at pains to stress that she has no concerns and she had merely reported the incident at the time out of concern for the child".

[16] The pursuer said that that fairly represented what he was told by PB and indeed her solicitor. The main focus of the discussion with her was her current situation and the other matter was in the past. She wished to draw a line under it and he had reported it in that light. 7/8 of process was a letter which he received from the Social Work Department dated 23 February in response to the letter he sent them on 6 February. This was the second letter he had received from them. The first said that they could find no record of the allegation and he had written to them again. The letter of 23 February 2004 is in the following terms:

"Thank you for your letter of 6 February 2004 re the above named children. Having reviewed our records I can confirm an allegation was made in 1999 by our client (sic) the circumstances being as you noted. K did not report any incident in joint interview, therefore no action was taken.

The social work contact amounted to a single meeting with both parents to share the information and advise accordingly. I hope this information is of use to you".

The letter is signed by Gillian Nicol, the Child Protection and Reviewing Officer

[17] The pursuer said that in the course of the current litigation the defender had lodged a number of documents which he did not see in 2004. The first of these was 7/1 of process, a letter dated 26 July 1999 from the then Child Protection and Reviewing Officer, Christine Clarke. It was addressed to the defender in the original action and said the following:

"Some concerns have been expressed to the Social Work Department regarding the safety and welfare of your daughter K. I would like to discuss these matters with both you and your ex-wife, PB."

The letter went on to suggest a meeting at the Hawick Social Work Office and 7/2 was a record of that meeting, which took place on 29 July 1999. It was signed by the Ms Clarke.

[18] It appeared from that record that the couple both arrived with extended family members and after some discussion the concerns were made known to the child's father alone. He was told that K was alleged to have told her mother that her grandfather, the present defender, had touched her inappropriately in the vaginal area. The officer explained that the allegations made by K had been investigated by way of a joint interview of K by a social worker and police officer, that K had not repeated the allegation and that as a result the police and the Social Work Department were not able to pursue the matter. The record goes on as follows:

"It therefore was left for both parents to ensure that K was safe. Part of that process was to inform him of the facts. Mr H was able to confirm that during his contact visits, K was never out of his sight and that she would never be alone and unsupervised. I confirmed that this was the reason why we wanted to talk to him and that ( ) had hoped that he would be able to allay her fears in this way. I explained that this was the end of the matter, that I would pass on to the Reporter that we had met and dealt with the matter and that the SWD was satisfied that the parents were taking sufficient steps to ensure the safety and welfare of K".

[19] The record goes on to deal with other matters and then finishes as follows:

"I then phoned ( ) and explained that the meeting had gone ahead and what information he had provided. She was relieved to hear what had been said and I explained that the matter was now at an end from the SWD view and we would pass this view on to the Reporter as well. She was in agreement with this and said she would contact her solicitor with regard to clarifying the legal status of K's contact and residence".

[20] I assume that the named blanked out is that of the pursuer in the sheriff court action, the child's mother. In view of the fact that the child's father said that K was never out of his sight and that she would never be alone and unsupervised, the pursuer said that he could see how the child's mother and her solicitor might have got the idea that there was a dictate in place .

[21] I have to say that my own reading of that record suggests that when the child's father said she would "never be alone and unsupervised" he was talking about the past rather than what would happen in the future.

[22] Nonetheless, another view could be taken of that information.

[23] 7/5 of process, another document which the pursuer had not seen, was an extract of the Social Work Department's records containing the following entry:

"Child protection concerns were raised on 03.04.99 that K had bruising to buttocks, no further action taken following assessment of ( ) parenting. ( ) made a report to the Social Work Department on 14.07.1999 following K informing her mother that ( ) had touched her down there and pointed to her vagina. K was given a joint police/social work interview. ( ) said no further action was taken and K must have been mistaken or confused about her ( ) actions. Discussion with the Child Protection Unit and examination of previous records show that no further action was taken and there were clearly no concerns about father Mr H".

[24] 7/4 was a letter dated 6 August 1999 from Christine Clarke to a solicitor J Ian Collie, for whom Mr Burke worked, and which contained the following sentence:

"I have now written to both Mr H and Ms H confirming what I told them last week, namely that the Social Work Department will be taking no further action in respect of K".

[25] At page 4 of the pursuer's report, 6/2 of process, he narrated the information given to him by the maternal grandmother and the child's mother's partner, EAB. None of the people was known to him. He would not have accepted appointment if he had known them. When he spoke to Mr B he was not aware that he had been sentenced to imprisonment by the High Court of Justiciary. The defender's solicitor told him nothing about that and he knew nothing about it. The first he knew of it was when he read the production. He had no means of carrying out any criminal record checks. Page 5 of the report completed the information from Mr B and also contained information from the maternal grandfather and the child's father. It is not necessary for me to repeat that information. Thereafter the report recorded information from the defender's mother and the information from the defender in the current case is recorded on page 9 as follows:

"I spoke separately to the Defender's father at 19 Davidson Place, Newton St Boswells. This is within walking distance of the Defender's house and is an extremely comfortable family home and the children regularly visit when they see their father for contact. Mr H confirmed the contact arrangements as previously described and showed me the children's toy cupboard. Mr H impressed as someone who had clear view (sic) on what would be best for the children and he was in no doubt that it would be better for the children that they should be staying with their father. He was aware that there had been some complaints about him in the past but maintained that it was in the nature or a 'tit for tat' complaint. He was seen by Social Workers but told not to put himself at risk or further allegations merely as a precaution. No other action was taken".

[26] The pursuer was asked how the statement in the second last sentence came to be in his report. He said that he could now see that it was an error, a genuine error. He had a letter from the Social Work Department dated 23 February saying that the Department had met the parents and he could only surmise that he had confused the parents with the grandparents. When he wrote his report he did not deliberately ignore the letter of 23 February and did not deliberately lie. He absolutely would not. He hardly knew the current defender and did not hate him. The only time he met him was the day he interviewed him. He said they got along well. His house was stunning compared to those round about him. It was a comfortable family home and he was offered a cup of tea. He bore him no ill-will then nor at anytime, including the present. He did not want to see him suffer and bore no malice towards him or anyone else in the case. It was suggested to the pursuer that the defender's contention was that he told maliciously lies and put the material into the public domain to hurt him. In response he said that he did not put it into the public domain. The report was put into court and lodged with the solicitors.

[27] He then returned to the report. After setting out the information from the current defender it narrates that he spoke to the then defender's sister, the children and the head teacher. At the bottom of page 11 there appear the following comments: "I made enquiries and established there were no current concerns regarding the children's contact with the Defender's father". This related to enquiries of the Reporter and the Social Work Department.

[28] Thereafter he set out his conclusions and recommendations and the 1999 matter was not mentioned in that part of the report. He was asked whether he took his responsibilities to court seriously and said that he was probably too serious and was very conscientious. He spent a lot of extra time dealing with the matter. He was asked why he mentioned the 1999 incident at all. In response he said that the pursuer's solicitor had told him that there was some form of dictact that the child should not be left alone with her grandfather. If the 1999 incident had been raised at the hearing and he had not touched upon it the court would have felt that he had not done his duty properly when there was a fundamental allegation about the child's safety. He was asked whether any supplementary report was asked for and said that he heard no more from the court after he lodged his report. Thereafter his role was at an end. If the court had asked for clarification or a supplementary report or he had been asked to appear at the child welfare hearing or a contested proof he might have had further involvement. It was open to the parties to cite him. He believed that the action was settled but he heard nothing about the case other than in relation to a number of side issues involving him. 7/10 was a letter of 17 August 2011 from Mr Burke to a solicitor who used to act for the defenders, Ms Sarah McGregor of Warners, Solicitors. This consisted of Mr Burke telling her his recall of events after he submitted his report. Inter alia the letter contains the following:

"With regard to my recollections I certainly recall, and indeed it is noted in the attendance notes, that H and his family were very upset about some of the comments in the report and MH in particular was quite vocal about it. You will see my meeting with him on the 16th. March 2004 lasted for an hour and twenty eight minutes going through the Report and that was because they were all very upset about it. I also recall an occasion when Mr & Mrs H (Senior) were in my office and I spoke to RH on the telephone asking if he would retract the particular offending paragraph in his letter. Unfortunately I don't have an attendance note in the file for that date and I can't remember exactly when it was although I am confident that it was around the same time because this was a very "hot" topic for MH in particular. RH was quite clear that he was not prepared to remove any paragraph and indeed did not see any need to do so. At that stage I then advised the H family that because I was dealing with H's ongoing contract dispute I felt that M would be better represented elsewhere and he then did go and instruct alternative representation himself. Although I can't remember the precise date I am quite clear that I had a telephone conversation with Mr H (the current pursuer) in which I explained the situation to him but he indicated he felt that there was no need for him to change the report. Subsequently of course M was able to obtain a copy of a letter from The Social Work Department confirming that they had advised RH of that in February prior to him releasing a Report and no doubt that is a matter which M has already identified to you".

[29] The pursuer said that he had a vague recollection of Mr Burke's phoning him some weeks after the report was submitted. At that time he did not think that it was within his power to change the report. The letter referred to an offending paragraph but he was not sure what that was. It might be the reference to the defender's having been seen by the Social Work Department or it might be other references. He was asked to look at 7/13, a document dated 25 May 2004 and which appeared to be H's response to his report. He had not seen this document until it was lodged as a production. He appeared to be complaining about a number of matters and this was not an uncommon response. People were very close to issues like this and sometimes their judgment was clouded. They picked up nit-picking points and missed the big issue. The call from Mr Burke was not the end of the matter. The witness was asked to look at 7/15 of process, a letter of 16 June 2004 from Balfour and Manson, Solicitors, to him. That letter indicated that they acted for the current defender and said that the report he submitted to the sheriff contained a number of inaccuracies. The report was submitted to the sheriff and the matter raised by PB or H and as such had been released into the public domain. The main concern was that unsubstantiated allegations relating to an alleged incident between K and the defender had been put before the sheriff without proper knowledge of the facts. The letter goes on:

"You indicate in your report that you have made enquiries with the Children's Reporter/Social Work Department and that there are "no current concerns regarding the children's contact with the defender's father". We are concerned to note that you have contacted the Children's Reporter/Social Work Department, but yet there are still a number of factual inaccuracies contained within your report which may prejudice the public's view of both our client and also HJH's entitlement to contact with his children.

The Social Work Department have never contacted Mr H, yet in your report at page 9 you indicate that Mr H was seen by social workers but told not to put himself at risk of further allegations merely as a precaution. This is false and is borne out by the letter from Gillian Nicol, Child Protection and Reviewing Officer, Scottish Borders Council, dated 23 February 2004. Mr H has never been contacted by anyone from the Social Work Department. On page 3 of your report you state that PB understands that the Social Work Department had indicated that in the circumstances, K should not be left alone in the company of her grandfather. This is false. Given that you have contacted the Children's Reporter/Social Work Department, we would have expected you to have marked in this section that this was false. The Social Work Department have never stated that K should not be left in the company of her grandfather. This is borne out by the letter from Gillian Nicol which was also sent to you on 23 February 2004.

Our client is understandably anxious that the wrong impression is being created of him before the court and also the public at large. We have recommended to our client that we would give you an opportunity of remedying the inaccuracies contained within your report and submitted to the Sheriffdom of Lothian and Borders at Jedburgh and also provide him with a letter of apology for these inaccuracies and the stress it has caused him for some considerable months now. Specifically, Mr H would like it noted within the Children's Reporter/Social Work section that the statement made by PB is false. Our client would also like page 9 altered to state that Mr H has never been contacted by social workers. Our client would also like the Children's Reporter/Social Work section of your report to be altered to be more specific and state that there are no concerns regarding the children's contact with the defender's father, rather than stating current concerns.

We look forward to hearing from you within 14 days to indicate your proposed course of action, failing which we will engage in discussions with our client to take his instructions regarding our own actions to remedy the possible deformation to our client's character and the prejudice to our client's son's application for contact with his children".

[30] The pursuer said that both PB and Mr McNab had told him that there was in place some form of dictact that K should not be left alone with her paternal grandfather. He went on to say that he was surprised that a firm of Balfour and Manson's standing would send this sort of letter, which he thought came from a junior member of the litigation department. The letter, and indeed the defender's pleadings, complained about his using the words "current concerns" but he thought that that was a reasonable thing for him to say. It was not meant to imply anything. In fact he intended to remove the cloud over the defender. He thought that he had a lot to offer the children if the adults started being sensible over contact arrangements. The changes being sought by Balfour and Manson were on behalf of someone who was not even a party to the action. The pleadings attacked the fact that the plural word "concerns" was used rather than the singular word. There was only one concern, it was said. However 7/1 of process, the letter of 26 July 1999 from the Child Protection and Reviewing Officer to the child's parents used the word "concerns".

[31] 7/16 of process was a letter from Balfour and Manson dated 6 July 2004 following a telephone conversation which the pursuer had with the writer on 17 June 2004. It threatened to raise an action of defamation unless the inaccuracies were remedied. It was followed by a letter of 27 July 2004. The pursuer said that his reaction to this was one of complete disbelief. Having received the third letter he forwarded the correspondence to the sheriff clerk for the attention of the sheriff and guidance as to what to do. Thereafter the correspondence must have been forwarded to Sheriff Principal Macphail, Q.C., since 7/18 was a letter dated 22 July 2004 from him to Balfour and Manson which referred to their letters and went on as follows:

"I am directly interested in this matter because the report of which you complain is part of a process under my control in a court for which I am responsible. The Reporter wrote the report in obedience to a remit from the court, and as an officer of the court. I have to tell you that it is wholly unacceptable that you should purport to require the Reporter to amend his report in accordance with your client's wishes under the threat of legal proceedings. The making of threats of that kind has the unfortunate appearance of an attempt to interfere with the course of justice in an action in a court in my Sherrifdom. I naturally should like to think that you had no such intention and that the terms of your letters were insufficiently considered. I trust that upon further reflection you will appreciate that the threatening of an officer of court in an attempt to influence the manner of his performance of his duties to the court was regrettable and ill advised. I look forward to hearing from you that you will not persist in this course. I am copying this letter to the Sheriff at Jedburgh and to the Reporter".

[32] The pursuer wrote a letter dated 17 August 2004 to Balfour and Manson (no 7/30 of process) asking how they proposed to remedy the situation and seeking confirmation that proceedings were no longer in contemplation. Balfour and Manson replied by letter dated 19 August 2004 (no 6/8 of process), indicating that the letters were written under a misapprehension of the position and offered an unreserved apology.

[33] The pursuer then heard no more about the matter until it was brought to his attention in April 2011 that a handbill was circulating in the Borders. On 10 April 2011 (a Sunday) he received a phone call from his brother in Kelso who said that he had seen an oldish man putting leaflets about him through shop doors. His brother lived next door to one of the properties. His initial reaction was to do nothing about it, it being a Sunday afternoon. He went to work on the Monday in Kelso and various people gave him copies of the leaflets, including the opticians next door. He began to receive calls from other people who had received them. A client, Mr Robin Girdwood phoned to say that he had become aware of the leaflet because his wife had brought one back from Galashiels. He was concerned because it called the pursuer a liar. He and his family did business with the pursuer and still did. A number of other potential clients called him as did other estate agencies and he discovered that the leaflet was circulating in Kelso and Gala. The second page of 6/6 of process is a copy of the leaflet and it is in the following terms:

"

WARNING!

R H, Solicitor and Estate Agent

IS A LIAR

When acting as a Court Reporter, he KNOWINGLY supplied FALSE, and in my opinion, MALICIOUS information to a Sherriff's (sic) Court Report, that was put into the public domain. Under Scottish Law, this is a very serious offence, yet the Legal System has done NOTHING about it.

WHY?

IS THIS SCOTTISH JUSTICE? SHAME ON YOU Mr H!

WHAT PART OF THOU SHALT NOT BEAR FALSE WITNESS

DON'T YOU UNDERSTAND?

We have asked for a full independent public enquiry into how Solicitors and Politicians handled complaints against them. At the moment it seems that they can just ignore them and hope that they go away. REGARDLESS of the consequencies (sic) to the injured parties. SO FAR THESE REQUESTS HAVE BEEN COMPLETELY IGNORED!!

This message is written and approved by MH.

For your comments please contact

(an email address was provided)

JUSTICE FOR THE SCOTTISH PEOPLE "

[34] He could not work out who was distributing the leaflets since the name rang no bells. However his partner looked up the database and found that he had done the report that is in question. He had thought first of all that it was simply a disgruntled client. He looked up the file to refresh his memory and when he found that the document had been distributed around rival offices he discussed with his partner what action to take. Was it worth a candle doing anything about it? He made some discrete enquiries but did not want to draw more attention to it than necessary, thereby putting it into the public domain. He went home to Minto and told his wife about it. Thereafter he found out over the next few days that leaflets had been distributed around Minto. That is a hamlet of around 50 people or so with a number of clients and potential clients. On the Wednesday, a number of shops and premises in Denholm, about a mile from Minto, had received them. That is where the shops and the folk club which he attended are situated. He was involved in that community for four years. There were two pubs, a bistro and a garage. A number of shops and houses and both pubs had the leaflets as well as his cleaner's friend. He understood that they had got as far as Gala, 20 miles away, and he presumed they had reached Newton St Boswells. He had no way of knowing how many were handed out and was sure that most people who got them had not contacted him. When he found that the area around his home was involved, he was concerned for the safety of his wife and damage to his name and business. The first part of 6/6 contained e mail traffic. Mr Girdwood sent an e mail to the defender on Monday 11 April in the following terms:

"Dear M

I have found your flyer and it really doesn't tell me what H has done to you.

I would love to comment but I am a bit in the dark.

Bob"

In reply there is an e mail apparently from the defender dated 12 April 2011 and which is in the following terms:

"Dear Bob,

Thank you for your inquiry.

At this moment I cannot go into too much detail, but suffice it to say that RH, when acting as a court reporter, appointed by a Sheriff Court, knowingly supplied false and malicious information to the Court, to the detriment of my good name. It goes without saying, that I have written evidence to back up my claims, as stated, in the flyer.

If you have any more questions, please do not hesitate to contact me again.

Thank you for your interest,

I am yours for Justice,

M. "

[35] That e mail was brought to his attention, he thought, on the Monday. When he saw it he thought that there would be no stopping the defender. He appeared to be a man on a mission as a result of something which had happened a long time previously. He had no idea how many e mails the defender had sent out. Thereafter the pursuer took advice and obtained interim interdict on 14 April 2011. He felt sad that he was being forced to take action to protect his good name and reputation in a relatively small community. He was asked what effect the circulation of the statements and the knowledge of the pending action had had on him. In reply he said he had took his position seriously, had been distracted from getting on with his job, and had missed some days at work, at least in part due to the stress of this. In addition there had been family worries. He had moved to a quiet idyllic spot and someone had come in and spread malicious falsehoods about him. He had done this person no wrong. He could not quantify the effect of all this on his business in a monetary sense. He had been severely distracted from his business, though. He did not know if anyone had been put off from coming to him. He said that it worried him to the extent that he was fairly sure that it had happened, but there was nothing he could not do about it. What had happened had happened. When he first read the leaflet he thought that he was dealing with someone who had got a problem. The language was strange. It was true that he was a solicitor and estate agent but he had not knowingly and maliciously supplied false information to the court. He did not want to be in court and was taking action because the matter could only be put to bed with the granting of permanent interdict. Solicitors were used to criticism. They advised clients all the time to ignore sticks and stones but something had to be done to stop this or it would have gone from bad to worse.

[36] The pursuer was cross examined at length by the defender.

[37] In cross examination he agreed that the role of a Reporter was an important one and reports had to be fair and balanced. He had done a considerable number of them. It was not unusual for a solicitor acting for one of the opposing parties to tell the Reporter that he was so appointed. He was asked whether the comments in the report which were in dispute were true and he said it was true that he was given that information. He was unable to get any definitive answers from the Social Work Department. He reported what he had been told by Ms B, however he dismissed it and said that there were no current concerns. It had been brought to his attention and it was his duty to make enquiries about it. It might have affected the child if he had ignored it. He had also been told by a solicitor that there was a dictat that the defenders should not be left alone with the child. He did not take that as Gospel and wrote to the Reporter and the Social Work Department. He simply reported what he had been told by Ms B. He was not in a position to cross examine her. He could not say whether whether what she said to him was untrue. The primary interest was that of the child, whether the defender was upset or not. He was not telling lies and truthfully reported what was said to him by Ms B. He said that there were no concerns but could not say that there never had been any. The defender had had more success in getting information out of the Social Work Department than he had had. He did not have 7/4 of 7/5 of process when he wrote the report. He confirmed that he had not known anything about the case of Mr B. If he had known about it, he would have referred to it in the report. It was put to him that a reasonable person, when he realised he had made an error, would correct it, otherwise it would be malicious and he said that that was not necessarily the case. There might be other ways of dealing with it, for example by making representations to people relying on the report. The only error he was aware of was the one which was now accepted in the pleadings, as amended. When the fact that the defender had not been seen by the Social Work Department was drawn to his attention, that was well after the report had been submitted and it was open to the defender's son's solicitor to draw the sheriff's attention to it. It was certainly not malicious. He was taken through the correspondence with Balfour and Manson but I need not go into that. He explained that a potential client was someone to whom he might be engaged to give legal or more likely estate agency in services in the future. No one rang to cancel any contracts. Possibly half a dozen people contacted him about the flyer. During his cross, the defender agreed that he was a man on a mission for "veritas, facts and justice". The witness said that he had been distracted from his business by the flyers and by being called a liar. He was sorry that the defender had been distressed as well. He was worried for his wife's safety because she lived alone in a house in a rural location not very many miles from where the defender lived. He was also worried about his business. He agreed it would be a serious matter to supply false information to a court. He denied knowingly putting in erroneous material. He obviously got the facts slightly confused when he came to compile his report. At the end of the day his report on the defender was favourable and he had discounted the concerns. He denied that he was influenced by the fact that the defender was a member of the Romany community. He was concerned for his wife's safety because this leaflet came out of the blue and the language in it was not that of someone who was thinking rationally. It was put to him that when he attended the defender's house to interview him, the latter asked if he would like a cup of tea and he replied that he hoped the defender was not trying to bribe him. He said he might have said that to put the defender at ease.

[38] The next witness was Robin Frank Melvin Girdwood. He said that he had first come across the pursuer when he and his family decided to move from Sussex and live in Kelso. They chose the pursuer's firm because of their website. He dealt with the pursuer on a number of occasions after that. He realised that the firm were a good company to work with and they also dealt with the sale of his mother's house. Compared with her solicitor, his firm were better. They did not socialise. He was an acquaintance rather than a friend. He said that the day before the e mail his wife had come home with the leaflet which had been put through her office door. She was mystified about it. She asked him what he thought of it and when he saw it he experienced a variety of emotions. He was concerned at first whether they had had a near miss as he put it and the second concern was for the pursuer. He recalled that there had been another campaign like this about a hotelier's wife who was said to be having an affair. He did not think that the defender's leaflet was true but he wanted to make some checks. The most obvious way to do so was to contact the defender by e mail and that is what he did. His impression was that the person responsible for the e mail was someone with a problem who was lashing out and not getting anywhere. He showed the information to his cleaner, a friend of the pursuer, and she suggested that the witness speak to the pursuer. He was going to do that anyway. He contacted the pursuer by telephone as far as he remembered and the latter said that he could not tell him very much about it. He recalled being a court reporter in a custody case and said that quite a number of leaflets had been distributed. It was difficult to tell on the phone if he was upset or anxious. This was happening at a time when they were trying to sell their mother's house and having spoken to his mother, brother and sister, they decided that based on past evidence, they would continue to engage the pursuer's services. If he had never dealt with the pursuer before and this flyer had dropped through his door, it would undoubtedly have had an influence on where he placed his business.

[39] In cross examination he agreed that he never contacted the defender again or made any further comments to him.

[40] The pursuer's wife, HOH then gave evidence. She said that on the Sunday in question it was brought to her attention by the pursuer that someone had seen an elderly man putting leaflets through doors in Kelso. She saw it on the Monday and was absolutely shocked. It was something that had come completely out of the blue. At first her husband thought that it was a case of mistaken identity but then after a few hours he told her that it was something to do with his being appointed a reporter. She knew that when he acted as a family lawyer he took pride in doing a good job. He was active in the Family Law Association and attended courses and seminars. He always tried to follow best practice and standards and had high scruples. Over the next few days they found out that the document had been distributed in Kelso and in places which would damage the pursuer such as businesses in the square. Next they heard that it was to be found in Gala. She wondered if perhaps it had been distributed in an area where the defender lived and she phoned a friend who lived there. He said he had not received one and told her not to get involved with the defender's family. She took that seriously. Two or three days later they went into the Fox and Hounds in Denholm and people there drew it to her attention. People generally seemed to be embarrassed to talk about it. The butchers said they had one and thought it shameful. Other people told them that they had heard about it. They were also handed out in Minto, the small village where they lived. That made her feel quite insecure. That was because while it was a business matter and had to be taken on the chin in that context it made her feel unsafe in her house when it came close to home. That was because there was a lot of anger and venom in the leaflet. She knew that the defender knew where she lived and this was 8 years or so after the event. It seemed mad. It went from nothing to total venom and she did not know what the defender was capable of. Professionally her husband was trying to be stoic but she would say that he was wounded. She could not really describe how he felt. He had fears that it might affect him in his business. She imagined that the leaflet's purpose was to do as much damage to his business as possible as well as frightening them. At first he was of the opinion that he would see if it simply went away but when it became personal and they realised that the defender was putting a lot of time and energy into it, they did not know where it would stop so they decided to apply for an interdict. She sensed that in the Borders, especially in Minto and Denholm, people were changing in the way they dealt with them. She thought there was some standing back from them. Since the case had been pending, the publicity and the looming proof had had an effect on the pursuer. It had not been an easy year. He had lost quite a lot of his motivation, put on weight, stopped exercising and was wondering what the point was of doing a good job if someone could demolish his reputation like that. For a few months he worked part time to try to get his motivation back. He was downhearted. The whole thing was very stressful for them and it had put strains on their marriage. She worried about his state of mental health and was concerned in case he would contemplate suicide. On one occasion they had had an argument and he started putting things into an overnight bag. She thought that he was going to drive off but she hid the car keys and his mobile so that he could not go away. He had made a small error but that could not justify what had happened. Neither she nor the pursuer had ever met the defender or his family before 2004 and his only concern had been the best interests of the child. There had been no malice whatsoever.

[41] In cross examination she said that her life had changed. She had never had the feeling of being hated before. She confirmed that she was told not to "mess with" the defender's family and said that she did not ask any more about that. She thought that the defender knew where they lived. She did not know about any attempts that the defender had made to address the matter before issuing the flyer. She was asked whether her husband's social life had suffered and said that he had not played golf for a year and had been a little bit withdrawn. His motivation for work had been affected. She was very nervous at night when she heard noises. She did not know where the defender would have stopped.

[42] At the end of her evidence Mr Heaney lodged a number of documents showing the location of Minto and containing certain statistical information. There was no objection to this and I allowed the documents to be lodged.

[43] Thereafter the defender was called by Mr Heaney. He said that his family had a carpet business. He had retired at 65 and now had no shares in it. He did not own the land on which the business was located and he received no income from it. He owned the house jointly with his wife. He had been in business for approximately 20 years. The whole family worked together in it. It was an important part of the business to be thought of as fair and reliable. He confirmed that the document he distributed was coloured red and black. He said that he had printed roughly 90 to 100 of them and that he had done it on a printer attached to a computer. He had had no helpers when he distributed them. He was asked whether he targeted particular businesses and he said that he just put them within reasonable proximity of where he lived. He did not intend to print and distribute any more of them. He did not put any out in Newton St Boswells nor Lauder or Duns. Some were in Gala, some in Minto, some in Denholm, a few in Hawick and a few in Kelso. None was distributed in Jedburgh, Lilliesleaf, Lanton or Askirk but there were some in Selkirk. He denied specifically targeting Minto, saying that he did not know that the pursuer lived there. It was an easy walk to Minto from Newton St Boswells if one was a hill walker, which he was not. The e mail from Mr Girdwood was the only one he received. It was put to him that he must have been very disappointed if his intention was to destroy the pursuer's reputation but he denied that. He also said that he resented the implication that he was violent. He was not acting out of hatred or malice, his purpose merely being to get acknowledgement that certain phrases were untrue. All he wanted was an apology and a retraction. It was put to him that the only relevant mistake was the fact that the report said that he was spoken to by social workers rather than saying that it was his son and the latter's wife who were spoken to and he agreed that that was the main one, although he also said that social workers never told him that he should never be along with the child. The pursuer did not retract his comments and they were not mere errors. He confirmed that he had only met the pursuer once. It was put to him that in the section of the report dealing with the pursuer's interview with Ms B, there appeared the following:

"I also asked Ms B about concerns to which I had been alerted by the pursuer's solicitors regarding Mr H's father. Apparently K had made some comment which had given rise to concerns which she had passed on to the Social Work Department. These were investigated and both parents called to a meeting but no further action was required".

He agreed that that was true. It went on: "She understood that the Social Work Department had indicated that in the circumstances K should not be left alone in the company of her grandfather". He denied that he wanted that sentence taken out, the main thing being the suggestion that he had been seen by the social worker and told not to be alone with K. He was not seen by the Social Work Department. He was asked whether he knew what Ms B understood or what she said she understood and said that he was not a mind reader. It was put to him that the sentence simply narrated what the reporter said Ms B thought and his answer was: "Well if that is how you see it, that is how you see it". While the report was addressed to the sheriff there was nothing to say that parties could not discuss it with anybody else. He had no idea what Ms B's thoughts on the matter were, nor did he know what the Social Work Department said to her. It was put to him that the report said "I made enquiries and established there were no current concerns regarding the children's contact with the Defender's father" and he said he would have to accept that as being correct. It was put to him that in his pleadings he asked the court to infer that the pursuer acted with malice because the word "concerns" was used rather than the word "concern" and he said that the pursuer was given notice before the report that there were no concerns and he had been asked to amend it after the report had been submitted but had refused. He wanted the report to have removed from it the suggestion that he had been visited by the Social Work Department and the suggestion that he had abused the child and was not to be left alone with her. He was asked where it said that he abused the child and was referred to the letter from Mr Burke, no 7/7 of process. The defender had inked out a sentence in that letter but the original copy now forms 6/9 of process. On page 3 of that letter there appears the following:

"The incident you mentioned in relation to his father, K's grandfather, I presume, must relate to an incident around four years or so ago when an allegation was made by P. This was investigated by the police who basically found out that there was nothing to support the allegation. The allegation came immediately after my client raised concerns over a hand print on K's bottom which had obviously came from a smack of considerable force and he was very concerned about it. He raised this with P and within days thereafter the police were calling at his father's house regarding an allegation. As I say the investigation found absolutely nothing untoward and nothing has ever been heard about it again".

It was the sentence which I have caused to be typed in bold that was inked out of the copy produced by the defender. He denied that the police called to see him and he was asked whether Mr Burke had made a mistake or whether he was lying. In response he said that he would say that Mr Burke had made a slight error. He agreed that anybody could make a mistake but when the mistake was pointed out and the person refused to do anything about it then in his opinion it became malicious. He agreed that he went with his son to Mr Burke's on 16 March 2004 where they had a meeting lasting 1 hour 28 minutes going through his criticisms of the report. His complaints were not restricted to one line. By that time the defender had obtained information from the Social Work Department that only the parents had been seen. His son's complaints about the report ran to 9 pages but he did not think that those complaints were discussed in depth at the meeting. The main concern was that it was suggested that he had been seen by the Social Work Department. He was asked whether he ever instructed a solicitor to approach the sheriff court directly on the contents of the report and he said that when the letter came from the Sheriff Principal he saw no point. He was in court now because he had been brought here by the pursuer but all he wanted was an apology and that would have been the end of the matter. He accepted that he had complained to the Law Society about Balfour and Manson. He also complained about Sheriff Principal Macphail. His complaint about the Law Society was time barred. It was put to him that when Messengers At Arms served the interim interdict on him he said that he had intended to distribute more leaflets the following weekend but he said that that was not the position as far as he was aware. He was not going to distribute any more. He had no intention of hurting anybody. Coming from a Romany background it was very important that there should not be circulated false information about his harming a child and being visited by the Social Work Department.

[44] Thereafter in lieu of cross examination as such he went over the correspondence with which I have already dealt. There was no doubt, he said, that he was never visited by Social Workers and anything to that effect which appeared in the court report was untrue and malicious. He had made numerous attempts to have the pursuer alter the contents of the report but he had not done so. He had tried to settle the matter amicably and had incurred considerable expense. The pursuer had sought an apology from Balfour and Manson but he had not seen fit to apologise to him for including a malicious untruth in his report so he seemed to have double standards. He referred also to 7/32 of process, a letter dated 4 March 2010 from the Justice Directorate Civil Law Division to the Assistant Clerk to the Public Pensions Committee. The addressee had asked a number of questions, one of which related to the mechanism to amend a malicious court report when a party felt that his views were not accurately represented. The letter writer set out how a report was compiled and inter alia said the following:

"8. When a report is finished, it is then sent to the agents of the parties involved in the action and to the court. It is normal for lawyers to arrange to discuss the report with their clients. The report allows a neutral third party to provide focussed information about the child independently from the parents or family. The sheriff must focus, as required by the legislation, on the welfare of the child.

9. Clients may disagree with aspects of the report and the lawyer will, if it is a material error in fact, have the opportunity at the child welfare hearing to draw the sheriff's attention to the factual error. It is good practice for lawyers to seek views from their clients on the accuracy of the report. See below about the opportunity to challenge a report during a proof.

10. If a report contains something that a party disagrees with strongly they can, through the agent or on their own, write to the sheriff principal setting out their concerns, this is because reporters are appointed to the list of approved reporters by the sheriff principal. Or they can proceed to a proof (another hearing with evidence) and cite the reporter to attend the proof.

11. Reporters have noted that parties often don't recall what they said precisely in the interviews. It is an understandably emotional and difficult time for the parties involved and therefore perceived inaccuracies in reports will often not be of a purely factual nature, but because one of the parties to the action is unhappy with the outcome. Reporters stress that their focus, as directed by the courts, must be to provide the court with all relevant information about the welfare of the child. The decision whether or not to amend a report lies with the sheriff".

[45] The defender said that if the true facts had been put before the sheriff, the untruth could have been nullified. He did not know what steps were taken by his son's solicitors to inform the sheriff. Lastly, the defender referred to 7/33 of process, a letter dated 2 February 2012 from his GP, which, inter alia, said the following:

"Mr H is currently defending a case against Mr H for wrongful accusations made by him in a court report in 2004. This has cost him a great deal of anxiety and worry and has necessitated a referral to a local psychiatric team for anxiety management and counselling, and he had been diagnosed with depression, which is mainly due to the ongoing issues regarding his court appearance. Mr H is constantly worried and anxious about this, he has a poor sleep pattern and as I said, this is making him depressed which has required treating him with antidepressant medication. This long drawn out procedure has obviously had a marked effect on his mental health and I hope for his sake, there is a resolution in this process in the near future."

[46] With that evidence the pursuer's case was closed.

[47] The defender then called Iain Thomas Burke. He confirmed that he had never had any reports from the police or the Social Work Department that there were any concerns about the defender. Concerns were expressed by Ms B's solicitor so they had been raised by her. After he received 7/6 of process, the letter of 6 February 2004, from the pursuer, he met the defender's son and a letter was sent to the pursuer stating that there were no concerns that they were aware of. He thought that was before the report was submitted. He had access to letters from the Social Work Department to the effect that there were no concerns. He was asked whether he contacted the pursuer about the flawed report and said that he had a meeting with the defender and his son. Concerns were expressed and he phoned the pursuer. The latter indicated that he did not feel that he needed to change the report and that it was based on information he had been given. He said that his business had been affected by the recession to some extent. Objection was taken to that question on the basis of no Record and I should say now that I consider that line to be irrelevant. He was not aware of any reason why someone should feel under threat for their safety from the defender or his family.

[48] In cross examination he said he had no reason to disagree that the report was submitted on or about 4 March 2004. He was referred to 6/9 of process and was asked whether this was the extent of his communication with the pursuer about the case prior to the submission of the report. He could not say for certain without the file but the letter certainly raised the issues which were involved. The information in it about the allegation would have come from the defender's son. He also contacted the pursuer after the report was submitted. He was referred to 7/10 of process, a letter to Messrs Warners, Solicitors, dated 17 August 2011. Under reference to that letter he said he sent Warners a copy of his file note. He had had a meeting with the defender and his wife and son on 16 March 2004. It lasted for an hour and a half and the contents of the report were discussed. The defender's son had arrived with a printed note of comments listing a number of concerns and there was a lot to talk about. He spoke to the pursuer on the telephone and raised a concern. He did not specifically recall the defender raising concerns about what the pursuer said was reported to him by Ms B. What exercised him was the reference to his having been visiting by the Social Work Department. There were a number of hearings before the sheriff and the report featured in those. He appeared for the defender's son in many of them. There was no particular discussion of what was said to have been said by Ms B. The sheriff did not consider that to be an important issue in the context of the dispute. His attention was drawn to page 9 of the report and to the following sentences, dealing with the defender:

"He was aware that there had been some complaints about him in the past but maintained that it was in the nature of 'tit for tat' complaint. He was seen by Social Workers but told not to put himself at risk of further allegations merely as a precaution. No other action was taken".

He was asked whether he raised the second sentence with Sheriff Drummond and said that he certainly did because there was little communication between the defender's son and Ms B. It was a hotly contested residence dispute and the view was that the allegation was made in response to a comment which had been made by the defender's son. The defender in the current case was clear that he had never been seen by the Social Work Department and the sheriff was told that. There was also a letter which the defender's son had, confirming that he had never been seen by the Social Work Department. He did not remember if the sheriff saw that, however, or if it was lodged as a production. He did not remember a supplementary report being requested.

[49] In re-examination he was asked whether he or Sheriff Drummond ever sent the defender a letter about the Social Work Department. In response he said that he had never sent him a letter discussing what was said at the Child Welfare Hearing and it would be unusual for a sheriff so to do.

[50] The next witness was the defender's son, HJH. He said that no one from the Social Work Department advised him that K should not be left alone with the defender. Since K was born his parents had been involved with the children. No one from the Social Work Department had told him that his father had been seen by them and told not to put himself at risk. He had never been told by anyone that the defender had harmed the child. The letter he wrote 8 years ago giving his opinions on the court report set out his thoughts at the time. He said the issue had affected every part of his family. The defender was a different man. 8 or 9 years ago he was very active, now he hardly left the house. He was a very fragile man. The report had affected his own new marriage. It had been brandished by people because his ex-wife had given it to them. Because the report contained a suggestion that his father was seen by the Social Work Department, it had been suggested to the witness that he himself had been a child molester. The report said that there were no current concerns so he used to be asked what current concerns there were now.

[51] In cross examination he was asked about 7/2 of process, the minute of the meeting with the Social Work Department. He said that he would not sit in the same room as Ms B. The department told him of the allegations and he got up and walked out. He would not listen to any more lies. He had no idea what the department said to Ms B. He did say, though, that K was never out of his sight and would never be unsupervised. The only person left alone with the children was him. He did not know his father was going to distribute the handbills. He did not know how many he distributed and he did not help.

[52] The next witness was SMcC. She was the daughter of the defender. Before her marriage she worked in the family business and was an office bearer in the Scottish Gypsy Traveller Association. She was also with Save The Children and the Commission for Racial Equality. She said that neither she nor her husband's family ever had any concerns about leaving their children with the defender. She said that when the pursuer came to interview the defender for the report the latter asked if he wanted a cup of tea and the pursuer's response was to ask whether he was trying to bribe him. She did not think that that was appropriate. In their custom, if a guest came to the house he was offered something and it was bad manners to refuse. She was asked whether it was a joke and she said it was not funny but just rude. She gave evidence of certain positions held by members of her family. I need not go into those but I accepted her evidence that they were positions of responsibility. The paternal grandfather of her children saw them on at least a weekly basis. Her uncle was titled as his son would be in the future. She saw her uncle fairly regularly. She was asked how the report had affected her and her family. This was objected to on the ground of no Record. She said that during the previous week it was her father in law's 66^th birthday. Her three children took him for a party and he kissed and cuddled them. Her own father, the defender, was 72 but they had no cake and candles for him because he would not give his grandchildren kisses and cuddles and would not sit with them. He would not allow himself to interact with his grandchildren, so her own life was affected. She spoke of the effect on the defender's health. His nerves were bad and he did not sleep properly. They sometimes worried what they would find when they got home. He was receiving psychiatric treatment because of the torment and the whole matter had wrecked his life.

[53] I had no difficulty in accepting this evidence but I did not consider it germane to the narrow issue which was before me.

[54] With that the defender's case was closed.

Submissions for the pursuer
[55] Mr Heaney moved me to sustain the first, third and fourth pleas in law and repel the other pleas in so far as not already disposed of. He also moved me to repel the defender's pleas in law, to grant decree for interdict in terms of the first conclusion and to grant decree for payment by the defender to the pursuer of damages in such sum as I thought fit together with interest at the rate of 8% per annum from 10 April 2011 until payment. He also moved for expenses in so far as not already dealt with.

[56] He opened his submissions with a definition of defamation into which I need not go. The defender did not deny that he was responsible for the publication of the handbills and e mail and had admitted to distributing around 100 or so. Perhaps there were more. The defamatory statements were set out on Record and had to be given their plain and natural meaning. The allegation was no less than that the pursuer was a liar who acted with malice against Mr H and lied to the court in the course of carrying out his duty as a reporter in a child welfare case. The statements were defamatory per se and there was no innuendo involved. The only defence that was advanced was one of veritas. There was no defence of fair retort or fair comment. In order to avoid liability the defender had to prove that the defamatory statements were true and their words were to be given their ordinary meaning in the context in which they were used.

[57] The court ought to find that the pursuer in good faith prepared the report about the child K and that it contained a single slip, a mistake. The defender seemed to be concerned that the report said that he harmed the child but it did not do so. Even when Balfour and Manson wrote to the pursuer they wanted him to take out of the report what he had been told by P B. What was said in the report was correct up to a point. It correctly stated that P B had complained that the defender had acted inappropriately towards the child, that the Social Work Department had investigated and that no further action was taken. To that, in error, the pursuer added that the defender was seen by a social workers and told not to put himself at risk of further allegations mainly as a precaution. The pursuer had overlooked the line in the Social Work letter of 23 February 2004 indicating that the parents were spoken to. That letter did not say that there was no Social Work advice given about supervision of the child. That such advice had been given was suggested to the pursuer by Mr McNab, P B's solicitor and by P B's herself. From the Social Work minute, 7/2 of process, it appeared that the supervision of the child was discussed with the defender's son and the gist of that discussion conveyed to P B. One could well see how the pursuer got the impression that an instruction had been given that the child should not be left alone with the defender. The defender, as I have said, criticised the pursuer for reporting to the sheriff what he was told by P B but he had to do so. The pursuer could not change what he was told.

[58] While what the pursuer said about the defender's being seen by Social Workers was not correct, that did not make the pursuer a liar. Integral to the definition of a lie was knowledge that what was represented was false. There was no evidence that when the pursuer made the mistake he was acting with malice. The evidence on the contrary was that he was acting in good faith in the discharge of his duty to the court. Everyone made mistakes. The defender even pointed out that Iain Burke made a mistake when he wrote, in 6/9 of process, that "within days thereafter the police were at his father's house regarding an allegation".

[59] The fair and reasonable reading of the report was that things had moved on since the incident in 1999 and there was no reason for the court to be concerned about the defender. There was no accounting for the way in which the report was read by those determined to take offence.

[60] There was no basis on which to infer that the pursuer acted with malice. He had no motive for trying to harm the defender. As a matter of human experience mistakes were always more likely than motiveless malice. The defender's best guess at a possible motive was to accused the pursuer of prejudice against him because he was a member of the Romany community. If the pursuer was acting with malice he would not have been careful to say in the report that the child's mother had no concerns and, twice, that no action was taken. He might have made reference to the police involvement mentioned in Mr Burke's letter. On the contrary he reported positively about the defender's whole circumstances and the report contained not a hint of ill will towards the defender or his son.

[61] There was nothing in the point that the pursuer did not report that EB had a criminal conviction. The pursuer explained why he did not mention that. It had been reported in 1995, 9 years before the report was prepared, he did not know about it and no one told him about it. The second indicator of malice was said to be the use of the plural "concerns" when referring to the lack of "concern" on the part of the Social Work Department. Nothing further needed to be said on that point since it was self evidently a bad one.

[62] The third point was that because the pursuer did not immediately issue a retraction and apology that showed that he must have been acting out of spite. However the pursuer had explained why he did what he did and I had seen the correspondence to and from Balfour and Manson and the letter from the Sheriff Principal as well as having heard from Mr Burke.

[63] The retraction and apology point might prima facia appear to have something in it until one examined how broad the complaints were that the defender and his family wanted to advance. That could be seen from the initial letter from Balfour and Manson. It seemed to come as a surprise to the defender when Mr Burke said in court that the report, including the mistake and the other matters were the subject of submissions before the sheriff at the Child Welfare Hearings. Not only that, but when the pursuer sent the Balfour and Manson correspondence to the sheriff clerk in July 2004, he brought the entire matter, the defender's complaints included, to the attention of the sheriff. The pursuer told the court why he would not enter into correspondence about the report. He was potentially a witness in the proceedings and his report was not intended for public consumption. It was an interim report addressed to the sheriff and the parties and those affected by it could make submissions about its content about it, as they did. The pursuer could not be blamed for refusing to enter into correspondence about a complaint made by a third party about a Child Welfare Report. That could result in chaos. The Sheriff Principal's attitude supported the pursuer in his refusal to enter into correspondence. Balfour and Manson, in 7/19 of process, suggested that the defender make representations to the sheriff. He did not do so. However, if Mr Burke was right, by 10 August 2004 when that letter was sent, those submissions had probably already been made. Mr Burke indicated that he probably tendered the social work correspondence to the sheriff which would have confirmed that the defender was not spoken to. No supplementary report was ordered. For what it was worth, what happened in the case of the defender almost exactly followed the procedure described in paragraphs 10, 11 and 12 of the letter from the Scottish Government lawyer to Mr David of the Scottish Parliament on 4 March 2010, no 7/32 of process. The matter had to be referred to in the report because it cast light on the background and the relationship between the parties. It had been mentioned by the solicitor for P B and could not simply be ignored. If the allegation was false, then that might reflect on the person making the allegation. The very making of it was a matter of some moment and could not just be ignored. The defender's case simply did not get off the ground. If a lie was a statement made with the intention of deceiving, then there was no basis for finding that the pursuer told a lie in the report. He simply made a mistake. The defamatory statements were repeated in the e mail to Mr Girdwood.

[64] If I were with the pursuer so far, the question of remedy arose. Mr Heaney submitted that interdict should be pronounced in the same terms as the interim interdict. There was, he said, a real and well founded fear that without an interdict the defender might repeat his behaviour. The material that was circulated was calculated to damage the pursuer. Most of what had driven the defender was wrong headedness but in relation to some important matters, Mr Heaney said that the told bare faced lies. He was said to have lied about whether he knew the pursuer lived in Minto and for that reason targeted it for dropping off handbills. It was too much of a coincidence that of all the small groups of dwellings in the Borders, he chose Minto. There were plenty of other little places where he could have distributed the handbills. He should not be believed when he said that his campaign was at an end by the time the interim interdict was served. One could sense the degree of anger involved in the wording of the handbill and the area where it was distributed, including the square where the pursuer had his business.

[65] In relation to damages, Mr Heaney referred to the case of Munro v Brown [2011] CSOH 117, 2011 SLT 947 where Lord Doherty summarised the law. In that case the coach of the Scottish curling team told the press that the pursuer had refused to play for the national team when in fact he had never asked her to do so. The local and national press reported her refusal and she was awarded £20,000 in solatium. The approach to the assessment of damages was dealt with at paragraphs 50 to 52. There was no element of past and future damage to business reputation.

[66] In the instant case, given the calculated, venomous and spiteful nature of the attack and the pursuer's well-founded fear that his business reputation had been damaged he should be awarded solatium of at least £30,000. Interest should be awarded on two thirds of that sum from 10 April 2011 when the material was first published.

[67] The pursuer, his wife and Mr Girdwood gave evidence about the effect of the handbill and e mail. No wonder the pursuer was upset. From all the circumstances, not least the words used in the handbill, it was reasonable to infer that the defender intended to hurt the pursuer personally and hurt his business. The pursuer said that he was hurt, upset and distracted. His wife described the effect of the distribution of the material and the legal action on the pursuer. She said that she feared that he was depressed and might harm himself. The defender's callous indifference to the pursuer and his wife was exhibited in the manner he cross examined her. When she said that she thought her husband might harm himself and took away his keys, he suggested to her that there was no point in doing that because he might equally have hanged himself from a nearby tree.

[68] The pursuer also said that he was fearful for his safety and that of his wife. The latter eloquently explained why that was so. She took the handbill by reason of the vehemence of its wording, its turning up in her small village and the delay between the events giving rise to it and its publication to be the work of someone who was angry. She did not know what such a person might be capable of.

[69] The defender said that he sent out about 100 handbills. That was not a small number. One handbill was not seen by just one person. Business premises where more than one person worked were targets. The pursuer was well known in the Borders and the handbill was likely to have been remarkable. People liked to gossip and the material put out by the defender would have provided a fruitful source of chit chat. The pursuer also reasonably feared that his business reputation had been damaged. He could not quantify precisely what business had been lost because a potential client was unlikely to phone him, interview him about the content of the handbill and then go elsewhere to sell his house. Mr Girdwood's evidence chimed with common sense. He said that if a person choosing a firm to use to sell his house saw the handbill, he would not have used the pursuer's firm. The same would go for those who simply heard rumours. The stigma did not go away with the granting of the interdict.

[70] The defender might claim that the pursuer should not be awarded a full measure of damages because the attack was somehow provoked by the error in the report but the essence of provocation was that the retort was made when the blood was up and before the person provoked had had the opportunity for mature reflection. That was not the case here. In any event it was more than the error which caused the defender to mount his campaign. The very fact that P B's allegation was reported to the sheriff caused him to be upset.

[71] It was submitted that solatium should be high because of the way that the defender had conducted himself. Reference was made to Baigent v British Broadcasting Corporation 2001 SC 281. The pursuer's suffering was not reduced because the defender was elderly, misguided and had ignored advice. The defender had meditated upon a couple of lines in the document which was intended for the consumption of the sheriff and the parties. He had nursed his wrath for seven years before making a determined attack on the pursuer calculated to damage his professional reputation in the community. He went specifically to the hamlet where the pursuer lived and delivered his handbills there. The cold calculated deliberate and spiteful venom with which he acted was a factor in aggravation and should result in an enhanced award. He was not suggesting that the damages should be higher as some sort of fine relating to the culpability of the wrongdoer but was saying that there was an element of twisting the knife in the pursuer so the award should be greater because that increased the loss, as I understood the argument. It might or may not be true that the allegation made against the defender had an effect on him. One could see that in the evidence of SMcC. However, while one might feel sympathy for the defender, the contents of the report did not constitute a licence for him to lash out at the pursuer. It did not mean that he was any less hurt by what the defender did and it did not make the defender's attack on him any less targeted, hurtful and damaging.

[72] The means of the parties were not relevant to the assessment of solatium, the enforcement of any award being a matter for the pursuer.

[73] In the event of success, the pursuer should be awarded the expenses of process in so far as not already dealt with but it might be that the court would want to see the entire history of offers to settle before making any decision.

Submissions for the defender

[74] The defender submitted that he was in court to defend his good name and reputation as well as those of his family which to some extent had also suffered from the false allegations in the report. He submitted that if someone was caught stealing, one was entitled to call him a thief. If someone was caught lying then one was entitled to call him a liar. What was in the handbills was true. It was the duty of a court reporter to tell the facts and if they were not true facts why were they mentioned in the report. A reasonable person reading the report would think there was some form of truth in it but there was none. There was a world of difference between a mistake and a lie. A mistake was inadvertent but if someone pointed it out and gave you notice that the facts were false, a reasonable person would expect that the person who wrote it would amend it and not perpetuate it for years. Silence could be every bit as incriminating as the spoken word. It was malicious to say that he was not to be left alone in the company of his grandchild. He had raised the question of Romany prejudice which some people had. He could find no reason why the statement should be in the report in the first place. He lived in a modest comfortable home which suited him and he thought that the most important detail would have been the capability of his wife and himself as grandparents. Mr B's record was something which should have been known before the report was made. His involvement should have been looked into in depth. The pursuer could have sent a simple letter of apology and have the statement removed from the court report. The fact that Balfour and Manson apologised for their letter was up to them. The points of complaint were narrow ones. He wanted the false malicious information removed, namely the allegations that he was not to be alone with the child, and the allegations that he had harmed her. The nine pages of complaints were his son's response to the report and not his. It was not impossible for the report to have been amended. It would not have been unreasonable for the pursuer to have told the sheriff that part of his report was untruthful and the sheriff could have asked him to amend his report. This whole business could have been stopped years previously but for the pursuer's intransigence. The Sheriff Principal's letter was a veiled threat. He should have let the legal case go ahead. By this I presume he meant the proposed action threatened by Balfour and Manson. He could not say why the pursuer acted out of malice.

[75] As far as the interdict was concerned, he suggested that there was no basis for any fear that he might distribute any more leaflets. He had not distributed any more since the interim interdict was put in place. He could have distributed it in bigger places if he had wanted to. He was not showing any rage or anger in court. He had always presented himself in a very good manner.

[76] As far as damages were concerned the pursuer should not be given solatium for telling a lie. It was utter nonsense to suggest that the pursuer feared for his wife's safety. His own family was beyond reproach. There was no medical evidence to support the pursuer's state of mind. Basically the pursuer said that he was concerned for his own good name and business but he never considered the defender's. He had not been nursing his wrath for years. On the contrary he had been trying to get this matter amended in an amicable way. The pursuer, being a solicitor, should have known what he was doing and should not have included the malicious lie in his report. A good reputation was important and something that was earned over a lifetime. It was not to be treated lightly as was done against him. The evidence of his son and daughter was true. All he had been trying to do was to get the true facts before the sheriff, the truth being that he had never been seen by the Social Work Department. He had no objection to background reports as long as they were truthful and factual. The first time he heard that Mr Burke said anything about the report to the sheriff was in the course of the evidence. The suggestion that he had harmed a child could be seen in condescendence 6 where it said that the pursuer "was told that an allegation had been made that the defender had harmed one of the children". No one was above the law and if a wrong had been done it should be put to right. It never had been. There was no reasonable explanation for the contents of the report other than malice or racism. It was designed to harm any chances his son had of getting custody. When Mr Burke contacted the pursuer and explained that the report was wrong, the pursuer was clear that he was not going to remove any paragraph and saw no need to do so. A retraction and an apology would have ended the matter. The defender accepted that he had not contacted the pursuer for seven years but said that he was told that it would be a crime to do so. He tried to resolve the matter through contacting MSPs. What was a man to do to receive justice? The pursuer seemed to think that whatever was said by PB was gospel. Every person should have the right to have a false document put right. If it was not put right then the person refusing to do so was acting with malice. The pursuer had caused all this trouble and stress for eight years and in the circumstances the defender sought expenses.

Discussion
[77] It is to say the least, extremely unfortunate that a few words in a report in an action long since settled have given rise to these proceedings following several angst filled years.

[78] Be that as it may, I have to reach a decision on the evidence laid before me.

[79] There is really no dispute on the basic facts. The pursuer was appointed a reporter in the action between P B and the defender's son. PB's solicitor wrote to the pursuer in the terms I have already indicated and included in his letter a reference to the "dictate" which has given rise to the issues before me. Thereafter the pursuer interviewed the persons referred to in his report and in due course submitted it to the sheriff. That report contained information about an interview the pursuer had with P B. On page 3 of the report the pursuer recorded that the child had made some comment which had given rise to concerns which PB had passed onto the Social Work Department. It went on "these were investigated and both parents called to a meeting but no further action was required". Thus far the statements in the report are borne out by the information from the Social Work Department and are not in dispute. The report goes on:

"She understood that the Social Work Department had indicated that in the circumstances K should not be left alone in the company of her grandfather. There does not appear to have been any problem in the intervening years and PB was at pains to stress that she has no concerns and she had merely reported the incident at the time out of concern for the child".

[80] The defender is not in a position to say what the pursuer was told by PB and I have no reason to think that those lines in the report did not accurately reflect what she told the pursuer. Part of the defender's case was predicated, it seemed to me, on the basis that the report said that he had harmed the child. That, however, is not what the report said. It merely reported that someone expressed concerns about that on the basis of a comment made by K. It does not in terms say that the defender harmed anyone. The indication by PB, referred to in the report, that the Social Work Department had indicated that K should not be left alone in the company of her grandfather is reflected in the letter from Mr Burke to the pursuer informing him that he had been appointed as a reporter. I think that it is likely that the information in Mr Burke's letter came from PB, who was his client, and gives credence to the suggestion that this was information which she also gave to the pursuer.

[81] The main issue, however, is the sentence to which I have referred repeatedly on page 9 of the report that the defender: "was seen by Social Workers but told not to put himself at risk of further allegations merely as a precaution".

It is accepted that that is erroneous. For the avoidance of doubt I wish to make it plain that I accept as a matter of fact that the defender was not seen by social workers and was never told not to put himself at risk of further allegations as a precaution. I will come back to that in due course.

[82] It is not disputed that the defender is responsible for the printing and distribution of a number of handbills in the terms indicated. He accepted that he had distributed around 90 to 100 of these. Mr Heaney suggested that there may have been more but there is no evidence for that and I proceed on the assumption that only 90 to 100 were in fact distributed. There is no doubt also that the defender was responsible for the e mail sent to Mr Girdwood.

[83] It is plain that the statements in the handbill and the e mail were defamatory of the pursuer, subject to the defence of veritas. The onus of proving that defence is on the defender.

[84] I do not think anything turns on the fact that the words "current concerns" were used in the report. It is plain that there was a concern in the past, which concern was alleviated. It may be that the word "current" was superfluous and that the report could have said that "there is no concern" but in my opinion this is just pure semantics. The real issue is whether the sentence at page 9 of the report to which I have referred and which is accepted to be erroneous, was just an error or was in fact a deliberate and malicious lie.

[85] I have little difficulty in holding that the insertion of the sentence was at least careless. The pursuer did not have the benefit of the information which the defender later obtained from the Social Work Department but he did have access to no 7/8 of process, the letter from the Social Work Department dated 23 February 2004 which contained the following lines:

"Having reviewed our records I can confirm an allegation was made in 1999 by your client (sic) the circumstances being as you noted. K did not report any incident in joint interview, therefore no action was taken.

The Social Work contract amounted to a single meeting with both parents to share the information and advise accordingly".

[86] On the other hand, as I have said, it is likely that P B gave the pursuer information that there was in place the sort of "dictat" referred to in Mr Burke's letter. In these circumstances, while the inclusion of the offending sentence was at least careless, I can see how the sentence in the Social Work Department's letter was overlooked.

[87] I am unable to find it proved that the pursuer told a deliberate lie. In the first place there is simply no reason for him to have done so. He had, on the evidence which I accept, never met the defender before. Secondly, the information in the report was broadly favourable to the defender and one would have thought that if the pursuer was engaged in a deliberate ploy to discredit him then the conclusions in the report as to the defender would have been different. In the third place I do not consider that the fact that the pursuer refused to alter the report, even if that could be described as intransigent, somehow converts an innocent error into a malicious lie. A number of complaints were made to the pursuer about the contents of the report but he had already submitted it and in response to the complaints he sent the whole of the correspondence to the sheriff clerk whereafter it found its way to the sheriff and the Sheriff Principal. There would have been little point in amending a report on the say so of a third party when it was open to the parties' solicitors to discuss the contents of the report before the sheriff, as indeed they did, on the evidence of Mr Burke, which I fully accepted.

[88] The sting in the handbills and e mail is that the pursuer maliciously lied to the court in the course of carrying out his duty as a court reporter. The defender has failed to prove that that is true and accordingly I find for the pursuer on the merits. As far as remedies are concerned, I note that the defender has obtempered the terms of the interim interdict. However, it is plain that throughout the course of the preceding years he has pursued a number of avenues, albeit quite properly, to bring this matter to the attention of various authorities. The contents of the handbill are, in my opinion, vitriolic. One can understand why that should be so but it remains the case nonetheless. It seems to me to be quite probable that if the defender is not prevented from doing so, he will continue to wage a campaign of sorts against the pursuer and accordingly I am prepared to pronounce perpetual interdict. That leaves outstanding the question of damages.

[89] Mr Heaney submitted that the cold, calculated, deliberate and spiteful venom with which the defender acted was a factor in aggravation and should result in an enhanced award, on the basis that it involved twisting the knife. His support for that was to be found in the case of Baigent v British Broadcasting Corporation [2001] SC 282 and Munro v Brown [2011] SLT 947. Those cases were also cited as authority for the proposition that proceeding with the defence of veritas and insisting in it until judgment could result in additional distress and in continuance of the injury to an individual's reputation. These cases were not authority for the proposition that awards of damages for solatium were anything other than compensatory. They could not be seen as involving an additional punitive factor. What it came to, I think, was a submission that the circumstances in which a statement was made and the fact that it was persisted in might increase the hurt and damage caused to an individual which would then require to be reflected in an appropriate award by way of compensation.

[90] In those cases the defamatory statements were broadcast to the nation. That did not happen in the instant case but nonetheless the statements were circulated in the community where the pursuer lived and around businesses with which he might be expected to deal. I do not think it necessary to find whether or not the defender knew where the pursuer lived.

[91] I have no doubt that all of this has had an effect on the defender but it is the effect on the pursuer which I have to consider. In doing so I have to have regard to a number of factors. The pursuer's own evidence was that he had been distracted from getting on with his job, had missed some days at work, at least in part, due to the stress of this and there had been some family worries. His wife went further, indicating that he had lost his motivation quite a lot, had put on weight, had stopped exercising and at least to some extent was no longer motivated to go into work. He wondered what the point was of doing a good job if someone could demolish his reputation. He was very down hearted and the whole matter had put strains on their marriage. She did refer to concerns that he might commit suicide but that was not something which was referred to by the pursuer at all far less as being something which was attributable to the statements made about him. I have no reason to doubt the evidence of the pursuer's wife but in the absence of any attribution by him of suicidal thoughts to the defamation, I do not take them into account. It seems to me also that the effect of the court action is probably marginal. As I assess his evidence the pursuer understood that solicitors were used to criticisms and his main concern was to put the matter to bed by way of a permanent interdict.

[92] I accept that around 90 to 100 handbills were printed and distributed but, as Mr Heaney said, each handbill would be capable of being read by more than one person and the pursuer was rightly concerned, in my opinion, that his reputation in the community where he lived would be damaged.

[93] The means of the defender are irrelevant in this assessment.

[94] I do not consider, on the evidence before me, that the damages should be as great as they were in for example Munro v Brown, and I assess solatium at £15,000. Most of the damage has already been done and I order that interest at the rate of eight per cent per annum should run on £10,000 of that award from 10 April 2011 when the material was first published. Finally, I should say that there was an issue as to whether the offending material should have been placed in the report at all. It seems to me that in light of the contents of number 6/7 of process, the letter dated 4 February 2004 from Mr McNab, it was a matter which the pursuer was duty bound to investigate. Had he ignored it and had the matter come to light at a later stage, he would have been open to criticism. Even if there was no such duty and the inclusion of the material was a matter for the pursuer's discretion, I cannot hold that the manner in which he exercised that discretion was unreasonable or unwarranted.

Decision
[95] I shall sustain the first, third and in part the fourth pleas in law for the pursuer, repel the first and in part the second pleas in law for the defender and I shall grant decree for interdict in terms of the first conclusion and for payment by the defender to the pursuer of the sum of £15,000 sterling with interest on £10,000 thereof at the rate of eight per centum per annum from 10 April 2011 until payment. The case will be put out By Order on the question of expenses.