EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
	[2013] CSIH 82
Lady Paton Lady Dorrian Lord Kingarth	A189/11 OPINION OF THE COURT delivered by LADY PATON in the cause RAH Pursuer and Respondent; against MH Defender and Reclaimer: _______________

Pursuer and Respondent: Heaney; Morton Fraser LLP

Defender and Reclaimer: Party

18 October 2013

Introduction

[1] This is an action of defamation. The pursuer is a solicitor in the Borders. In 2004 he was appointed as a court reporter in a family case involving the defender's granddaughter. The report ultimately contained an inaccurate sentence, stating that the defender "was seen by Social Workers but told not to put himself at risk of further allegations merely as a precaution" (paragraph [3] of the Lord Ordinary's opinion). As the defender explained to this court, that sentence, when read in context, implied that it was not safe to leave him alone with his granddaughter. He was extremely upset by the implication, which was totally without foundation. Both he and his wife enjoyed being with their grandchildren, including their granddaughter, and this court was advised that the repercussions caused by the inaccuracy had been devastating.

[2] Any such implication was indeed wholly wrong. As the Lord Ordinary noted at paragraph [81]:

"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."

[3] The pursuer's position at the proof before answer was that the erroneous information had been included in the report by an innocent mistake (paragraph [2] of the opinion). He accepted that he had obviously got the facts slightly confused when he came to compile his report (paragraph [37] of the opinion), despite having a letter from the social work department dated 23 February 2004 which, if read carefully, would have alerted him to his error. By contrast, the defender considered that, when compiling and submitting the report (dated 4 March 2004), the pursuer had deliberately and maliciously told lies about him, as the pursuer knew or ought to have known from the letter dated 23 February 2004 that the defender had never been seen by social workers or told not to put himself at risk of further allegations.

[4] When addressing this court, the defender emphasised that he had requested the pursuer to change and correct his report. The pursuer had not done so, which was, it was submitted, proof of his malicious motive. The defender had pursued a number of avenues seeking correction of the erroneous statement, but without success (paragraph (2) of the opinion).

[5] Ultimately the defender felt driven to produce leaflets, quoted in paragraph [33] of the Lord Ordinary's opinion as follows:

"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 and independent public inquiry 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 e-mail address was provided).

JUSTICE FOR THE SCOTTISH PEOPLE"

[6] The defender distributed about 90 to 100 of those leaflets in the local community in the Borders. It is clear from the terms of the leaflet that the defender was alleging that, at the time of preparing and submitting the report, the pursuer deliberately and knowingly supplied false information, and was motivated by malice.

The action of defamation

[7] The pursuer raised the present action of defamation against the defender, averring that the leaflets had damaged his reputation and caused him and his family considerable upset and distress. He obtained an interim interdict, which prevented further distribution of the leaflets. He sought damages. The defender pled veritas in his defence. A proof before answer took place before Lord Matthews.

[8] Having heard evidence and submissions, the Lord Ordinary accepted the pursuer's evidence that the sentence had been included in error (an error described by the Lord Ordinary in paragraphs [85] and [86] as "at least careless"). He accepted that it was not a deliberate lie. As he put it in paragraphs [87] and [88]:

"[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 ...

[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 ..."

[9] Thus the Lord Ordinary held that the defender had failed to prove veritas - in other words, that the defender had failed to prove that the pursuer had maliciously lied in the course of carrying out his duty as a court reporter (paragraph [88] of the opinion). After referring to authorities, namely Baigent v British Broadcasting Corporation 2001 SC 281 and Munro v Brown 2011 SLT 947, he granted perpetual interdict and awarded the pursuer damages of £15,000 in name of solatium, together with expenses. The decision is reported as H v H 2012 SLT 1100.

The reclaiming motion

[10] The defender reclaimed against that decision. He contends that he was successful in proving that the contents of the leaflet were true, a fortiori as the pursuer initially refused to change his report, and ultimately only admitted at a very late stage that the sentence was erroneous and without foundation. Accordingly the defender should not have been found liable in damages. In any event, the damages awarded were excessive.

[11] Before us, the defender placed considerable emphasis on the delay which had occurred before the pursuer admitted that the information contained in the sentence was erroneous. There had been an amendment to the pursuer's pleadings at a very late stage, shortly before the proof before answer (paragraph [3] of the opinion).

Discussion and decision

[12] As Lord Thankerton explained in Thomas v Thomas 1947 SC (HL) 45 at page 54:

" ... (1) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion. (2) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence. (3) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court."

[13] In the present case, the Lord Ordinary had the benefit of hearing and seeing all the witnesses, including the pursuer and the defender. He heard submissions. He took the case to avizandum and then produced a carefully considered and reasoned opinion. He accepted the pursuer's evidence, as he was entitled to do, and in addition gave supporting reasons as noted in paragraph [8] above. One of these reasons deals with the delay in admitting that the sentence was erroneous, and what inferences the Lord Ordinary felt could be drawn from that delay.

[14] On the information before us, the Lord Ordinary was entitled to accept the pursuer's evidence. Not only did he have the opportunity to assess the pursuer's demeanour and the way in which he gave his evidence, but the supporting reasons given by the Lord Ordinary cannot be criticised. In the result therefore we are not persuaded that the Lord Ordinary erred in any way in his assessment of the evidence he heard, or in his conclusion.

[15] As for quantum of damages, the Lord Ordinary very properly sought some guidance in the decided cases. However as Lord Johnston pointed out in Baigent v BBC 2001 SC 281, at paragraph [22]:

" ... Every case of defamation is unique in respect of both the content of the slander and its effect upon the victims and it therefore follows, in our view that even comparison with other decided cases in that area is of very limited value."

In our view, the leaflet was clearly damaging to the reputation of a local solicitor such as the pursuer. Honesty and integrity are qualities of particular importance in the legal profession. On the evidence, the Lord Ordinary was entitled to take the view that the leaflets had caused the pursuer and his family considerable upset and distress: see paragraphs [90] to [91] of the opinion. In the circumstances we are unable to say that the award of £15,000 was one he was not reasonably entitled to make.

[16] Nevertheless there is one aspect of the monetary award in this case which requires correction, namely interest. The interest awarded on the past element of the award (ie £10,000) should have been at the rate of four per centum per annum. We shall allow the reclaiming motion to that extent. Quoad ultra we refuse the reclaiming motion. Meantime we reserve the question of the expenses of the reclaiming motion.