Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 55

A263/13

Lady Dorrian

Lord Malcolm

Lord McGhie

OPINION OF THE COURT

delivered by LADY DORRIAN

in the reclaiming motion

by

NIGEL CAYZER

Pursuer and Reclaimer;

against

TIMES NEWSPAPERS LIMITED

Defenders and Respondents:

Act:  Smith, QC; Gillespie Macandrew LLP

Alt:  Dunlop, QC; Ledingham Chalmers LLP

8 July 2015

[1]        The pursuer in this action is the nephew and executor of the late Sir James Cayzer, for whom he had previously been authorised to act under a power of attorney and Guardianship order. He avers that an article published by the defenders in the Sunday Times dated 2 December 2012 was defamatory of him. The article, headed “Aristocrat’s friends driven to despair” contained the strapline: “Classic car sale ignored the late Sir James Cayzer’s dying wish”, and was accompanied by photographs of Kinpurnie Castle, model cars at a Glasgow museum, and of the reclaimer, with the tag “insert right, Nigel Cayzer inherited the collection”. The article referred to what was understood to have been Sir James’ wishes for the disposal of his fleet of vintage cars in the event that his family did not want them.  It stated that a friend had raised concerns over the welfare of the deceased a year before his death, that Tayside police had been alerted and included quotations from various sources.

[2]        Of the allegedly defamatory aspects of the article as set out in article 4 those insisted in were that:

- that the pursuer acted in a manner that was improper in the administration of Sir James's affairs following his death and that the pursuer acted in breach of his obligations as executor

- that he did so by selling certain valuable motor cars contrary to the wishes of Sir James who wished them to be gifted to the City of Glasgow Transport Museum and that the pursuer is responsible for that action

- that he did so in furtherance to his own personal interests in preference to those of Sir James and the general public;

[3]        It is averred at p 10 of the print that the article fails to make clear that the cars were sold prior to the death, and that the reasonable reader would conclude that “the sale of the vehicles was following the death of the late Sir James and in a manner that ignored his testamentary and philanthropic intention”.

[4]        The respondents aver that the article does not, and cannot, bear the meaning attributed to it by the purser; that the meanings actually conveyed are either substantially true or honest comment on matters of public interest; and that the article was in any event the subject of qualified privilege.

Proceedings before the Lord Ordinary
[5]        When the matter came before the Lord Ordinary for discussion on the procedure roll, parties were agreed that before a case such as this could proceed to inquiry the court had to be satisfied that the words complained of were capable of bearing the defamatory meaning ascribed to them (Russell v Stubbs 1913 SC (HL) 14; followed in MacLeod v News Quest (Sunday Herald) Limited 2007 REP LR 5) and that in judging whether or not the words are capable of being such a meaning the court has to have regard to the natural and ordinary meaning of the words as understood by the ordinary, reasonable reader of them. (see Gillick v British Broadcasting Corporation (as quoted in MacLeod v News Quest (supra))).

[6]        The respondent argued that the language of the article complained of by the pursuer was incapable of bearing the defamatory innuendo contended for. There were no allegations of impropriety or wrongful behaviour, and whilst there were statements to the effect that the pursuer had exercised his power as executor in a way inconsistent with what appeared to be the testator’s wishes, it was expressly stated in the article that there was “no law against failing to comply with requests made in a will”.  The highest one could infer was that the pursuer had acted in a way which upset persons who had known the testator during his life because his property had not been disposed of in a manner he would have wished after his death.

[7]        The reclaimer argued that having regard to the article as a whole, it was defamatory in the manner contended for. The implication was that the reclaimer was guilty of “impropriety” or “moral turpitude”.

Decision of the Lord Ordinary
[8]        The Lord Ordinary concluded that if it were a reasonable interpretation of the article that it carried an imputation of impropriety in the administration of the estate against the testator’s wishes and to the benefit of the pursuer, that “would plainly amount to a potential defamation which would entitled the pursuer to proof”. However, he concluded that the article was not capable of bearing such an imputation. The reclaimer has appealed against that decision.

Reclaimer’s submissions
[9]        In founding upon the reference that there was “no law against” failing to comply with a testator’s wishes the Lord Ordinary appeared to have been considering the well‑established principle of “bane and antidote”, but in doing so he wrongly applied that principle. Reliance was placed on Robertson v Newsquest (Sunday Herald) Ltd & Ors [2006] CSOH 97 in which Lord Reed observed:

“[19] In relation to the ‘bane and antidote’ principle, it was accepted in Stern v Piper (at page 136 per Simon Brown LJ) that a publication which reported a defamatory allegation would not itself be defamatory, and would not therefore fall within the scope of the repetition rule, ‘if, say, the defamatory sting of the article had been wholly removed by surrounding words’.

[20] It appears to me that the latter approach - where part of the article, if it were read in isolation, would convey a defamatory imputation, but the remainder of the article prevents such an imputation from being conveyed - should be understood, at least in Scots law, as a particular example of the more general principle that a publication must be considered as a whole. That principle has long been established in Scots law and can be illustrated by Russell v Stubbs Ltd, where the publication of the pursuer's name in a list of persons against whom decrees in absence had passed (described by the pursuer as a credit blacklist) was held to be incapable of conveying to any reasonable mind the imputation that the pursuer was unable to pay his debts, by reason of a footnote to the list which stated that ‘in no case does publication of the decree imply inability to pay’.”

[10]      By apparently concluding that the antidote met the bane, the Lord Ordinary ignored the contention that the reclaimer did not rely on an imputation that he had committed a criminal act: rather his position was that the defamatory innuendo was one of moral turpitude, which is not removed by the observation that such actings are not against the law. The Lord Ordinary had also erred in his assessment of the tone of the article, the upset of friends being only an adjunct to the implication of wrongdoing.

[11]      For completeness, it was conceded for the reclaimer that the averments consisting of the alleged imputations referred to at article 4(iv) and (v) and the supporting averments from the words “Further the article” in the 8^th last line of page 6 to the words “false and defamatory” at the start of line 8 of page 7 should be withheld from probation.

Respondents’ submissions

[12]      Standing the statement that there was “no law against failing to comply with the requests made in a will”, the reasonable reader could not conclude that the reclaimer had acted in breach of his “obligations as an executor”, and his case was thus misconceived. The article does not convey the notion that he ignored the wishes in breach of obligations of executor, nor does it represent that there was a sale of vehicles after death. The subtext of the article is that Sir James Cayzer wished the collection of cars to be kept together, whereas the collection was split up and sold: all that is true. The critical issue is not whether they were sold but whether the collection was kept together.

Decision
[13]      The critical issue for the court is whether the article, read reasonably and as a whole, is capable of bearing the defamatory innuendo attributed to it by the reclaimer. The Lord Ordinary concluded that it was not, and appears to have had two reasons for so concluding.  First, the inclusion in the article of the observation that there was no law against failure to comply with non‑testamentary wishes made by a testator. He considered this to be “a formidable obstacle to the pursuer’s case”. It seems that the Lord Ordinary considered that any defamatory sting was removed by the addition of these words. His second reason was that the whole tone of the article amounted to a report of upset on the part of friends of the testator who thought that the reclaimer’s conduct was not in accordance with the innuendos averred.

[14]      In carrying out its task, the court must give the terms of the article their natural and ordinary meaning, without being either unduly suspicious or indulging in over-analysis. To some extent, the exercise is an impressionistic one, in which a judge is entitled to consider the impression which reading the article made on him, and to ask what effect the article as a whole might be expected to have on a reasonable member of the public. The Lord Ordinary understood the test which he had to apply, but we have come to the conclusion that in placing such emphasis on the words indicating that there had been no breach of the law, the Lord Ordinary misdirected himself as to the overall tenor of the article.

[15]      The issue of whether the article can bear the defamatory meaning averred does not rest upon an imputation that the reclaimer had acted unlawfully, and of course, the article does not suggest that he had done so. The imputation contended for by the reclaimer is not that he acted unlawfully, but that he failed to act in accordance with the moral duty expected of him as an executor, ignoring the testamentary and philanthropic intentions of the testator.  It is an imputation that he acted in a way that most people would find repugnant: namely, that entrusted with the capacity as executor he deliberately ignored the testamentary wishes of his uncle, and that he did so for base personal motives, being the person who “inherited the collection” and might thus benefit from the sale.

[16]      The court requires to examine the article as a whole, and to consider whether the imputation alleged constitutes a reasonable and natural interpretation of the article. In our view the Lord Ordinary was in error in concluding that the article could not bear the imputations alleged. He placed too much emphasis on the statement that the actions complained of were not unlawful rather than consider the wider question as to whether the terms of the article as a whole might bear the imputations alleged. The majority of people are likely to feel that an executor is honour-bound to carry out the testamentary wishes of the deceased, and that failing to do so, other than where impossible, is liable, to use the well-recognised if rather old-fashioned phrase, to lower him in the esteem of right thinking members of society.

[17]      As to the second part of the Lord Ordinary’s reasoning, this is tied in with his first reason. It is true that the upset of friends forms part of the content of the article, but we cannot agree that it amounts to the “whole tone” of the article. It would only do so if the article were incapable of carrying the imputation that he acted improperly in his role as executor: then it might be possible to read the article only in the way suggested by the Lord Ordinary. However, it is clear that the article implies that the reason that the friends were upset was because the sale of at least some of the vehicles had been contrary to the testamentary wishes of the deceased. To concentrate, as counsel for the respondent urged us to do, on the breaking-up of the collection, which on any view must have commenced prior to the death, since some vehicles were sold during the testator’s lifetime, is to adopt an over-analytical approach, and requires one to ignore the overall tenor of, and impression gained from, the article.  It is a reasonable inference from the article that some of the vehicles were sold after Sir James’ death, contrary to his wishes, and that the reclaimer, as executor, was responsible for arranging the sale, and as beneficiary, would gain therefrom.

[18]      We have therefor reached the conclusion that the Lord Ordinary erred in law in concluding that the article was not capable of bearing the defamatory imputations alleged. In the circumstances, he should not have sustained the respondents’ first plea in law, but should have reserved that plea pending a proof before answer. We will therefore recall the interlocutor of the Lord Ordinary, in so far as it sustains the defender’s first plea-in-law and dismisses the action, and allow a proof before answer on that plea. We shall withhold from probation the averments referred to at paragraph 11 above.