Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 67

A765/04

 

Lady Paton

Lord Drummond Young

Lord McGhie

OPINION OF THE COURT

delivered by LADY PATON

in the cause

THOMAS SHERIDAN

Pursuer and respondent;

against

NEWS GROUP NEWSPAPERS LIMITED

Defenders and applicants:

Pursuer and respondent:  Party; Dangerfield

Defenders and applicants:  A Duncan QC, Richardson;  Ledingham Chalmers

 

19 August 2016

Civil jury trial for damages for defamation

[1]        In a civil jury trial in July and August 2006 the pursuer, then a member of the Scottish Parliament and leader of the Scottish Socialist Party (SSP), sought damages for defamation against the defenders.  In his summons, the pursuer averred that certain articles in the News of the World in 2004 falsely accused him of inter alia sexual practices involving bondage, spiked heels, and whipping.  He averred that the articles falsely accused him of adultery, participating in orgies, and drinking champagne (when he was teetotal).  He averred that the articles meant that he was a hypocrite and an abuser of his position as leader of the SSP.  He denied all the allegations.

[2]        In his defamation action, the issue for the jury was in the following terms:

“Whether the statements in the articles published by the defenders in the ‘News of the World’ on 14^th November 2004, 21^st November 2004 and 2^nd January 2005 falsely and calumniously said that the pursuer committed adultery (with Fiona McGuire, [AK] and other unnamed individuals);  that he was a ‘swinger’ and that he participated in orgies;  and while he claimed to be teetotal drank champagne;  meaning thereby that he was a hypocrite and an abuser of his position of power as a party leader to the loss, injury and damage of the pursuer”.

 

[3]        The defenders pled justification, in that the articles were true, or at least substantially true.  They lodged a counter-issue in the following terms:

“Whether it is true that the pursuer committed adultery (with Fiona McGuire, [AK] and other unnamed individuals), that he was a ‘swinger’, that he participated in orgies, that whilst he claimed to be teetotal he drank champagne;  meaning thereby that he was a hypocrite and an abuser of his position of power as a party leader.”

 

Background

[4]        The initial article in the News of the World concerned Fiona McGuire (pursuer’s Appendix A1 pages 58 to 62).  The article was particularly lurid.  A summary of its content and effect is contained in the pursuer’s pleadings as follows:

“2 … On Sunday 14^th November 2004, the defenders published a number of articles of and concerning the pursuer in their Scottish Edition.  On the front page of the newspaper there was a picture of a Fiona McGuire wearing a towel as well as a picture of the pursuer.  The headline stated ‘Scottish Exclusive – My Four IN-A-BED Orgy with Tommy’.  The front page also contained sub headlines which stated ‘Ex-escort girl tells how MSP Sheridan cheated on his wife’ and ‘Party boss lusted after married lover in PVC bondage gear’.  Thereafter the newspaper devoted pages 2-5 to articles of said nature and of and concerning the pursuer … The sting of the articles was that the pursuer had a four year affair with Fiona McGuire.  That their affair involved participating in raunchy group sex sessions and that their affair took place during the currency of his marriage.  So far as the pursuer is aware he has never met Fiona McGuire …”

 

[5]        In their answers, the defenders averred inter alia:

“2. … Explained and averred that the News of the World … seeks to publish articles that are of general interest to the ordinary reader, including articles which expose hypocrisy or inappropriate conduct on the part of public figures ... [The defenders then outlined how they had obtained information from Fiona McGuire, and continued] … On 12^th November 2004 … [AK] told the newspaper that she had had an affair with the pursuer and that she had visited a swingers club with him.  Accordingly, at the time of publication of the articles, the newspaper had been given information from a number of separate sources consistently to the effect that the pursuer had been unfaithful and had visited a swingers club …”

 

[6]        The defenders made further averments about the locations at which the pursuer’s affair with Fiona McGuire was said to have been conducted:  for example at the Treetops Hotel, Aberdeen;  various locations in Glasgow, Aberdeen, and Dundee;  in a car in a lay-by in Dumbarton;  at a Travel Lodge, Dundee;  at the Thistle Hotel, Aberdeen;  at a hotel in Newcastle (where another couple were said to have joined them in a sex session).  The defenders further averred that the pursuer had been involved in group sex at the Moat House Hotel, Glasgow.

[7]        The pursuer’s denials resulted in further headlines and articles about him in the News of the World.

[8]        In his pleadings, the pursuer averred:

“6.  The contents of said articles are false and defamatory.  They expressly accuse the pursuer of being a ‘love rat’ and that by cheating on his wife with the two named women as well as other unnamed parties.  They were written with a view to lowering the pursuer’s reputation in the mind of right thinking members of the public and did so.  The articles purported to expose the pursuer as a hypocrite, serial adulterer, and as a ‘swinger’ fond of participating in orgies.  The effect of the allegation that he had sex with a party worker was to expose him as an abuser of a position of power.  It was well-known amongst members of the party, the press, and the general public that the pursuer was teetotal.  By virtue of the allegations made to the effect that the pursuer was a ‘champagne socialist’ the effect of the article was to portray him as a hypocrite.  In addition the allegation that the pursuer was a regular user of a prostitute is of itself defamatory …”

 

[9]        The defenders pled inter alia:

“3. The terms of the headlines, sub-headlines and articles complained of being true or at least substantially true, the defenders should be assoilized.”

The civil jury trial in 2006

[10]      The civil jury trial began on 4 July 2006.  The evidence took twenty days.  The defenders employed Sellers Legal Services to record and transcribe the evidence.  Their transcript now forms the defenders’ Appendix 2.  

[11]      The defenders had been ordained to lead at the trial.  They led 24 witnesses, including the pursuer.  Several of the witnesses, including Fiona McGuire, AK, and KT, gave evidence of having had extra-marital sexual relations with the pursuer, and/or being involved in some way when the pursuer was engaged in extra-marital sexual relations, including group sex.  All of those allegations were denied by the pursuer.

[12]      The pursuer for his part led 13 witnesses, including his wife Gail Sheridan.  In the latter part of the trial he dispensed with counsel and agents, and represented himself. 

[13]      When the evidence was finished, the jury heard speeches from the pursuer and the defenders’ senior counsel.  Lord Turnbull then charged the jury inter alia as follows (defenders’ Appendix 2 Day 22 page 101, 116 et seq, and Day 23 page 30):

“ [page 101] … let us look at the definition of defamation then.  ‘Defamation is the communication of a false statement or idea which is defamatory of the pursuer in the sense of harming his or her public character or honour or reputation or of being derogatory or disparaging in the eyes of the reasonable person’.  It is sometimes put this way, that the test is whether the words would tend to lower the pursuer in the estimation of right-thinking members of society generally …

[page 116 et seq] … Having looked … at what each side needs to establish in terms of the respective onus of proof, can we then look at what the possible outcomes might be?  There are a number of possible outcomes, and I am only going to identify one or two of them to try and assist you.  But the first outcome might be this:  you might be satisfied that Mr Sheridan has made out his case that the News of the World defamed him by [saying] that he drank whilst claiming to be teetotal in the sense they were meaning he was a hypocrite.  You might also be satisfied that he was defamed by the claim that he had an affair with a party worker, thereby meaning he abused his position of power.  You might also find that the defenders have failed to establish their case that he was a hypocrite, on account of adultery, being a swinger and participating in group sex.

    Now if all of this was the case, then obviously Mr Sheridan would have succeeded in doing what he had to, and the defenders would have failed in doing what they had to.  If that was the case, then obviously Mr Sheridan would succeed.

    Another possible outcome is this:  you might find that Mr Sheridan has failed to establish the matters he needs to, and the defenders have successfully demonstrated the truth of all of their allegations, and in this scenario, obviously the defenders would succeed.  They would have proved everything they set out to prove and Mr Sheridan would have failed to prove what he set out to prove.  And so, each of these two options are quite easy, they are at either ends of the spectrum – but what if you are somewhere in between?

    It is in this situation, if you are in between the two, that the terms of the Defamation Act of 1952 would apply.  And Mr Jones showed you that on the screen yesterday.  Just let me read the terms of that again to you and then discuss them a little.  The terms of section 5 of the Defamation Act of 1952 reads as follows:

‘In an action for libel or slander or defamation, in respect of words containing two or more distinct charges against the pursuer, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the [pursuer’s] reputation having regard to the truth of the remaining charges.’

    Now, let us look at what that means.  The section, of course, applies where the words complained of constitute ‘two or more distinct charges’.  And the charges in this case are set out in the issue;  we have looked at them.  They are that Mr Sheridan did various things, which meant that he was a hypocrite and an abuser of power.  And the effect of this section of this Act is to allow the defenders a complete defence even if they do not prove the truth of all the charges made.  Of course, they do not automatically get the benefit of that section.  So, if you found yourself in the situation where some of the charges were established by the defenders, and some were not, then you would have to ask yourselves:

“What is the effect of the conclusion which you have arrived at?”

And you would have to ask yourself this:

“Standing what the true state of Mr Sheridan’s reputation ought to be in the light of the charges that have been established, do the words used which have not been established still materially injure his reputation?”

    So, putting that into an example:  if, in light of your decision, he ought to properly be seen as an adulterer, a swinger, someone who likes to participate in group sex, is his standing or reputation materially reduced by saying that he is also an abuser of power if that cannot be proved?  So it is working out where the proper standpoint is – the proper starting point is this.  So if you found that some claims have been established and some not, then you would have to examine the question of whether or not the claim which had not been established did still materially injure Mr Sheridan’s reputation.  And if you found it did, then you would be entitled to find for him.  If you found that it did not, then you would be entitled to find for the defenders …

    [page 30] How do you go about giving your judgment then?  You do so by answering the issues in the case.  In this case you have the issue and the counter-issue, and they are linked;  the answer to each follows logically from the answer to the other.  So if you decide to find in Mr Sheridan’s favour, then you would answer ‘Yes” to the issue for the pursuer, and consequently ‘No’ to the issue for the defenders, and if you decide to find in the defenders’ favour, you would answer ‘No’ to Mr Sheridan’s issue and ‘yes’ to the defenders’ issue …”

[14]      The following day, 4 August 2006, (defenders’ Appendix 2 Day 23 page 96) the jury, by then reduced to 11 in number, delivered the following verdict:

Answer to the issue:  Yes (majority, 7 to 4).

Answer to the counter-issue:  No (majority, 7 to 4).

Damages assessed at £200,000.

No supplementary questions seeking clarification of the verdict were put to the jury.

[15]      On 11 August 2006, the defenders enrolled a motion for a new trial.  On 15 August 2006, the case was appointed to the Summar Roll.

[16]      In September 2006 the defenders were in discussion with George McNeilage (the pursuer’s friend and best man at his wedding) in relation to a video-tape.  Mr McNeilage claimed to have video-taped the pursuer in late 2004 – i.e. long before the civil jury trial – making certain admissions which contradicted evidence he gave during the civil jury trial.  The defenders paid Mr McNeilage £200,000 for the tape.  The pursuer’s position is that the tape is a total fabrication.

[17]      Criminal proceedings against the pursuer and his wife Gail Sheridan ensued, in particular investigations into allegations that they had given perjured evidence during the civil jury trial.  In September 2007, the defenders’ motion for a new civil jury trial was sisted.

[18]      Investigations were also being made into the activities of the News of the World and the defenders’ staff.  Allegations of inter alia phone-hacking by members of the defenders’ staff were investigated.

[19]      In 2010 the criminal trial concerning the Sheridans took place.  It lasted 12 weeks.  The Crown witnesses included Fiona McGuire, AK, KT, and George McNeilage.  According to the pursuer, issues of phone-hacking and other questionable activities on the part of some of the defenders’ staff were raised, and were denied by the defenders.  The pursuer did not at that stage have all the documents which were ultimately recovered by police operations.  Such documents as he had were often heavily redacted.  As a result, according to the pursuer, it was difficult to show linkages and connections which he wished to demonstrate to the jury.

[20]      The indictment against the pursuer contained numerous detailed charges, specifying that he had given false evidence in the civil jury trial in that inter alia he had falsely denied that:

• at an SSP executive committee meeting on 9 November 2004, he made admissions about two visits to Cupid’s Club;
• at the Moathouse Hotel on 14 June 2002, he had sexual intercourse with a woman PQ while in a bedroom with another man XY;
• between 1 January 1994 and 27 September 2002, he had a sexual relationship with AK; and
• between 1 January 2000 and 31 December 2005, he had a sexual relationship with KT (a party worker).

[21]      Notably, the indictment did not contain any charges alleging that the pursuer had lied on oath about Fiona McGuire (the subject of the first News of the World article published on 14 November 2004).  That may have been as a result of investigations tending to show that Fiona McGuire had not told the truth:  cf paragraph [45] below.  Nor did the indictment contain any charge alleging that the pursuer had lied on oath about his being teetotal.  That may have been attributable in part to evidence given on oath in the civil jury trial by the editor of the News of the World, who is noted in the transcript as explaining that the detail about drinking champagne was added because “that [was] what Fiona [McGuire] wanted … she wanted to change some details so that she came out in a better light” (defenders’ Appendix 2 Day 18 pages 122-124).

[22]      On 23 December 2010, the pursuer was found guilty by majority verdict of the following offences:

“(2) on 21 July 2006 … you … being affirmed as a witness in a civil jury trial of an action for defamation then proceeding there at your instance … did falsely depone [denials of the matters specified in (A) to (C), (M) and (O) below]

the truth being as you well knew,

1. that on 9 November 2004 at the Executive Committee meeting of the Scottish Socialist Party held at 70 Stanley Street, Glasgow you did admit to attending said Cupid’s in Manchester on two occasions in 1996 and 2002 and that you had visited said club with said [AK];
2. that at said meeting it was stated by said Alan William McCombes and Keith Robert Baldassara that they had previously raised the issue of you attending a sex club in Manchester and that you had admitted to them that it was true;
3. that at said meeting you did not deny having visited a swingers’ club in Manchester; ….

(M) that on 26 September 2002 you did attend said Cupid’s in Manchester with said Andrew McFarlane, Gary Clark, [AK] and [KT] and that you had visited a club for swingers;  ...

(O) that between 1 January 2000 and 31 December 2005, both dates inclusive, you did have a sexual relationship with [KT], and that you had stayed overnight with her at [an address in Dundee].”

 

[23]      The verdict demonstrated that the jury did not find it proved beyond reasonable doubt that the pursuer had lied in his denial of the Moathouse events.  Nor did the jury find it proved that the pursuer had lied in his denial of having a sexual relationship with AK.  Thus on the basis of the criminal jury’s verdict (together with the absence in the indictment of any charge relating to Fiona McGuire or to drinking champagne) it was not open to the defenders to contend that the criminal trial established that the pursuer had lied on oath during the civil trial in his denial of:

• having sexual relations with Fiona McGuire (including practices such as group sex, bondage, spiked heels, and whipping), all at a time when he was a married man
• having sexual relations with AK, at a time when he was a married man
• participating in orgies
• drinking champagne.

But the defenders were able, after the criminal trial, to contend that the criminal jury’s verdict established beyond reasonable doubt that the pursuer had lied on oath to the civil jury when he denied:

• that at the SSP executive committee meeting on 9 November 2004, he had made admissions about having visited Cupid’s Club in Manchester on two occasions, one in 1996 and one in 2002, and having visited the Club with AK
• that at the said meeting, Mr McCombes and Mr Baldassara stated that the pursuer had admitted to them that it was true that he had attended a sex club in Manchester
• that at the said meeting, he did not deny having visited a swingers’ club in Manchester
• that he had visited Cupid’s Club on 26 September 2002 in the company of others including AK and KT
• that he had a sexual relationship with KT between 1 January 2000 and 31 December 2005, including staying overnight with her at an address in Dundee.

[24]      On 26 January 2011 the pursuer was sentenced to 3 years imprisonment for giving perjured evidence.  By that time, there were criminal investigations into allegations of phone-hacking by certain members of the defenders’ staff.

[25]      The pursuer immediately lodged an appeal against his conviction for perjury, requesting that any decision in relation to the appeal be delayed until there had been further recovery of documents.  No period of delay was granted.  The appeal was refused at first and second sift. 

[26]      The defenders had learned of the existence of a woman named MM.  She gave them information (and ultimately an affidavit dated 20 January 2011) stating that she had had sexual relations with the pursuer on several occasions over a long period “from when [she] was 15 years old until 39 years old” (defenders’ Supplementary Appendix page 36).  MM had not been a witness in either the civil jury or the criminal jury trial.

[27]      The pursuer made an application to the Scottish Criminal Cases Review Commission seeking to have his perjury conviction re-investigated and referred to the High Court of Justiciary with a view to having the conviction quashed. The application was supported by documents concerning the activities of the News of the World.  Many of the documents had been disclosed to the pursuer by the Crown Office after being recovered by police operations. The pursuer lodged many of those documents in the present civil proceedings, in his Appendix A to H. 

[28]      On 14 February 2014, the defenders’ motion to recall the sist in the civil case was refused.  On 17 September 2015 a motion to recall the sist was granted.  After sundry procedure, the hearing of the motion for a new civil trial took place on 10-12 May 2016.

 

Relevant legislation

[29]      The Court of Session Act 1988 provides:

“Application for new trial

29.-(1) Any party who is dissatisfied with the verdict of the jury in any jury action may, subject to such conditions and in such manner as may be prescribed, apply to the Inner House for a new trial on the ground –

(a)        of misdirection by the judge;

(b)        of the undue admission or rejection of evidence;

(c)        that the verdict is contrary to the evidence;

(d)       of excess or inadequacy of damages; or

(e)        of res noviter veniens ad notitiam;

or on such other ground as is essential to the justice of the cause.

 

(2)        The Inner House on hearing an application under this section may, subject to section 30 of this Act and any act of sederunt, grant or refuse a new trial.

 

(3)        If the Court, on an application for a new trial on the ground that the verdict is contrary to the evidence, after hearing parties is unanimously of the opinion that the verdict under review is contrary to the evidence, and that it has before it all the evidence that could be reasonably expected to be obtained relevant to the cause, it may set aside the verdict and, in place of granting a new trial, may enter judgment for the party unsuccessful at the trial”.

 

[30]      The Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 provides:

“Convictions as evidence in civil proceedings

10.-(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United Kingdom … shall … be admissible in evidence …

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom … (a) he shall be taken to have committed that offence unless the contrary is proved …

(3) Nothing in this section shall affect the operation of section 12 of this Act … whereby a conviction … in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact …

Conclusiveness of convictions for purposes of defamation actions

12.-(1) In an action for defamation in which the question whether the pursuer did or did not commit a criminal offence is relevant to an issue arising in the action, proof that, at the time when that issue falls to be determined, he stands convicted of that offence shall be conclusive evidence that he committed that offence:  and his conviction thereof shall be admissible in evidence accordingly …”

 

Submissions for the defenders
[31]      Senior counsel for the defenders moved the court to set aside the jury’s verdict of 4 August 2006;  to recall the interlocutor of 16 June 2006 allowing issues;  and to remit the case to a Lord Ordinary to proceed as accords.

[32]      In view of the substantial appendices lodged by the pursuer, and in order to keep the proceedings manageable, the defenders no longer requested the appeal court to re-determine the case in terms of section 29(3) of the 1988 Act.  Senior counsel acknowledged that the case was by now 10 years old, the pleadings were out-of-date, there had been the criminal conviction in the meantime, and the pursuer had many matters which he wished to raise:  thus the defenders simply sought the setting aside of the verdict and a remit to a Lord Ordinary who could ensure that pleadings and other matters were brought up to date, and that any subsequent debates or proofs could proceed in an orderly manner.  Even on the pursuer’s submissions and analysis (namely that evidence against him was illegally obtained or tainted, and therefore the perjury conviction was based on inadmissible evidence and should be quashed) there would have to be averments, evidence, and discussion.

[33]      The defenders advanced three grounds for their motion to set aside the jury verdict. (i) It was essential to the justice of the cause that the verdict be quashed as unsafe.  To allow the verdict to stand, when the pursuer had been convicted of perjured evidence given in the civil jury trial, was contrary to the justice of the cause.  (ii) The verdict was contrary to the evidence.  (iii) Res noviter veniens ad notitiam, namely the fact of the perjury conviction, and new evidence from George McNeilage and MM. 

[34]      As background material, senior counsel referred to certain passages in the pursuer’s evidence on 21 July 2006 where he emphasised his own integrity and honesty (defenders’ Appendix 2 Day 13 pages 32, 41-42, 140-141, 149, 157 and 161).  The transcript also contained many passages where the pursuer accused people of lying (including members of his own party). 

[35]      Senior counsel addressed the court on the three grounds as follows.

[36]      (i) Essential to the justice of the cause:  There were two reasons under the first head.  (a) On any view, the verdict was not safe.  On the basis of the true evidence, the pursuer was, at the very least, an adulterer, who went to swingers’ clubs, was a liar, and a hypocrite.  (b) The pursuer had perpetrated a fraud on the court.  Reference was made to Lord Reed’s lecture “Lies, damned lies:  Abuse of process and the dishonest litigant” 26 October 2012;  and to Lockyer v Ferryman (1877) 4 R (HL) 32;  Maltman v Tarmac Civil Engineering Ltd 1967 SC 177.  As a result of the conviction for perjury, the pursuer fell into the category of “dishonest litigant”, with all the consequences.

[37]      (ii) Verdict contrary to the evidence:  Senior counsel submitted that a verdict reached where the pursuer had committed perjury should be viewed as a verdict contrary to the evidence.  It had been essential to the pursuer’s success that he was accepted as honest, and that his evidence was accepted as credible and reliable.  Without his perjured evidence, the pursuer would not have succeeded at the original trial.  The defenders’ position was that a verdict which was contrary to truthful evidence and depended on dishonest evidence was a verdict “contrary to the evidence”.  Evidence which was perjured should not be considered to be evidence properly before the court. Reference was made to the 1988 Act and to Snodgrass v Hunter (1897) 2F 76. 

[38]      (iii) Res noviter veniens ad notitiam:  Senior counsel referred to Miller v Mac Fisheries Ltd 1922 SC 157 at page 160, and accepted that Miller defined the threshold which he had to meet.  In support of the defenders’ submission, counsel prayed in aid the perjury conviction, the McNeilage video-tape (defenders’ Supplementary Appendix page 3 et seq), and the evidence of MM.

[39]      The genuineness of the video-tape was vouched by two experts.  Further the tape had been made on 18 November 2004 (although not released to the defenders until 2006):  it could not therefore be said that the tape had been compiled because the defenders had offered Mr McNeilage money.  The pursuer was recorded as admitting that he had visited a swingers’ club on two occasions (contrary to the evidence he gave at the civil trial), and regretting having made admissions at the SSP executive meeting on 9 November 2004.  Further the video-tape revealed his attitude to women, and what he had said about KT.  

[40]      In relation to the evidence of MM, senior counsel referred to her affidavit (defenders’ Supplementary Appendix page 36 et seq), and to an affidavit from a solicitor Kenneth Lang explaining how her evidence came to light (Supplementary Appendix page 52 et seq).

[41]      For all the reasons advanced, the jury verdict should be set aside.

[42]      Further procedure:  So far as further procedure was concerned, the defenders no longer requested the court to adjudicate on the merits.  Nor did the defenders seek a proof before answer.  The better course was to remit to a Lord Ordinary to proceed as accords.  It was competent to do so in terms of section 29, rule of court 39.1 (which, by subparagraph (5) expressly applied rule 38.6 opening up all previous interlocutors) and Moyes v Burntisland Shipbuilding Co 1952 SC 429.  The passage of time since the original trial in 2006 gave rise to a question about the proper mode of inquiry.  The defenders’ position was that the evidential effect of the conviction for perjury was sacrosanct and could not be challenged in these proceedings:  section 12 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 (although the pursuer took issue with that proposition, contending that section 10 was the applicable provision, and that the conviction gave rise only to a rebuttable presumption which could be challenged).  The defenders’ submission was that one could not use civil proceedings in order to challenge a criminal conviction, and thus section 12 was the correct provision.  A remit to a Lord Ordinary to proceed as accords would mean that the section 10/12 question would become part of the discussion before the Lord Ordinary.  No authority or precedent precisely in point had been traced so far.

[43]      Any new inquiry should be by a judge and not by a jury, as questions of law were in dispute.  Although the case was an enumerated cause, it was trite law that cases of doubtful relevancy should not be sent to trial.  In this case there were several issues of doubtful relevancy, including the meaning and effect of sections 10 and 12 of the 1968 Act;  the question whether the sting of the defamation was covered by the conviction, and the effect of section 5 of the Defamation Act 1952 (cf Rothschild v Associated Newspapers Ltd [2013] EWCA 197, paragraphs 24 and 25);  whether the onus of proof transferred at any stage;  what the pursuer would do with the pleadings, and to what extent he could bring in all the material lodged in his Appendix A to H.  With so many questions requiring answers, it was inconceivable that a further jury trial should be ordered.

 

The pursuer’s submissions

[44]      The pursuer denied lying in the course of the civil jury trial in 2006.  He referred to his live criminal appeal against his perjury conviction.  Section 29 of the 1988 Act contained an overarching provision, namely, whether a re-trial was “essential to the justice of the cause”.  While the pursuer did not ask the appeal court to make findings-in-fact, he did ask the court to evaluate the quality of the evidence which he had collected, and to conclude that a re-trial was not essential to the justice of the cause.

[45]      Frequently overlooked was the fact that it was the Fiona McGuire 5-page article in the News of the World on 14 November 2004 which had started everything.  That article made seriously defamatory statements about the pursuer.  It was now known that Fiona McGuire’s allegations were wholly untrue.  Reference was made to what appeared to be a witness statement given by Miss McGuire dated 9 August 2011 taken by DC Cath Murphy (pursuer’s Appendix G page 267 et seq) in which Miss McGuire was noted as stating at pages 268-9 inter alia:

“Basically the evidence I gave at Tommy Sheridan’s defamation case in 2006 was untrue.  I can’t tell you how sorry I am about it, it has completely screwed up my life.  I got sucked into it & couldn’t get out of it, it didn’t matter what I said, it didn’t matter to the News of the World that while I was ‘in their care’ I’d tried to commit suicide three times.  I felt like I was owned by the News of the World & they’d taken over my life.  I’m not proud of what I’ve done, I felt like I had my back against the wall & had to do what they said … I now want to tell the truth …”

 

[46]      In outlining the evidence available, the pursuer referred inter alia to documents and materials in his Appendix, which were adopted in his pleadings brevitatis causa (Answers number 52 of process paragraph 3.1.11).  The pursuer accepted that he would have to prove all of these matters in court, but submitted that the information placed before the appeal court was such that the motion for a new civil jury trial should be dismissed outright, and the civil case brought to an end entirely.  The res noviter (the McNeilage tape and the MM story) were the shabby products of cheque-book journalism, lacking the necessary quality required to meet the res noviter bar in that they added nothing new.  However even if the res noviter test was met, there should be dismissal of the defenders’ motion, because a new trial was not “essential to the justice of the cause”.  The court should be very reluctant to overturn the carefully deliberated verdict of the jury.

[47]      Some of the matters drawn to the court’s attention were as follows.

[48]      Fiona McGuire being removed from the Scottish jurisdiction to Dubai “in case she got recalled to witness stand”:   On Day 20 of the trial, the pursuer raised the possibility of recalling the witness Fiona McGuire for further questioning.  His motion was not granted (defenders’ Appendix 2 Day 20 pages 33 and 58).  However memos, invoices, and other documents appeared to indicate that the defenders spent a total of about £9,889.44 “sending Fiona away [to Dubai] in case she got recalled to [the] witness stand” (pursuer’s Appendix H pages 4 to 8).  At page 8, a memorandum from the editor of the News of the World appeared to refer to Miss McGuire’s past as “including prostitution and drugs”, and to describe her as the newspaper’s “most flaky witness” who had required “babysitting” by a News of the World employee before and during the trial.  The editor appeared to add “ … just when things are going our way again”, News of the World should not “fall out with Fiona” as he hated the idea of her “turning up on Mr Sheridan’s side at any time”.

[49]      A document containing a reference to Fiona McGuire being taken to Dubai, produced in answer to a court interlocutor, was apparently incomplete:  One document produced in obedience to a court order was headed “Sheridan costs”.  According to the pursuer, the full and accurate version of that document only became available later, as part of a police investigation.  The later document contained an entry “Cost of sending F McGuire away £10,000” (an entry which did not appear in the document previously produced to the court).  Reference was made to the pursuer’s Appendix C pages 116a to 116b, and D page 134.  The pursuer contended that the only possible explanation for this material was that the defenders had deliberately presented a false document in response to an order for recovery.  This was a blatant abuse.

[50]      A member of the defenders’ staff apparently impersonated Fiona McGuire during a phone-call:  A transcript of a telephone call apparently made by one of the defenders’ female staff on 25 October 2005 appeared to show her impersonating Fiona McGuire while talking to a Scottish Mirror journalist (pursuer’s Appendix A1 pages 175 to 178).

[51]      Phone-hacking and tracing of whereabouts:  The pursuer referred to entries apparently showing the hacking of his personal phone and other phones by the defenders, thus giving the defenders access to private and confidential material which they would not otherwise have, and also an ability to trace the whereabouts of the pursuer and others.  He contended that the material demonstrated that the defenders had been able to find certain witnesses, whom they anticipated would give evidence against him, only by illegal means.

[52]      Other examples:  The pursuer had other examples of what were, in his submission, wholly unacceptable journalistic practices amounting at times to attempts to pervert the course of justice.

[53]      The pursuer also made the following further submissions, set out more fully in his note of argument.

(i) Competency:  The defenders’ pleadings in their res noviter minute, insofar as relating to the verdict being contrary to the evidence, were incompetent.

(ii) Relevancy:  It was not possible for the defenders to plead a relevant case of both res noviter and verdict contrary to the evidence:  the same evidence could not found both.  In any event, the pursuer’s conviction could not have been evidence led before the jury in 2006.  Section 12 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1968 did not apply in the present case.

(iii) Abuse of process:  The defenders were seeking to continue what amounted to an abuse of process (cf the matters outlined in paragraphs [48] to [52] above).  The conduct of the defenders made it impossible to have a fair hearing on the matters raised in the motion for a new trial.

(iv) Inadmissibility of evidence illegally obtained:  The evidence on which the defenders sought to rely as res noviter was illegally obtained.  The perjury conviction had been obtained by illegally acquired evidence and by a cover-up of its provenance amounting to a conspiracy to pervert the course of justice.  Any evidence which the defenders sought to lead in the present proceedings was inadmissible.

(v) The defenders’ impeachment of their own witness was not a good ground of appeal:  The defenders’ senior counsel had led the pursuer in evidence at the civil trial.  It was not then open to the defenders to seek to impeach the credibility of their own witness (the pursuer) as they were now attempting to do.

(vi) Perjury in itself could not found res noviter:  For any new evidence to be allowed as res noviter, that evidence must have been in existence at the time of the civil trial.    Self-evidently, the perjury conviction was not such evidence.

(vii) The McNeilage tape and MM’s evidence did not constitute res noviter:  Any evidence sought to be led by the defenders “neither [imported] into the case any new feature nor [put] any new complexion on it” but was “confined in its effect to the further corroboration of the account” which the defenders gave at the civil trial (Miller v Mac Fisheries 1922 SC 157, at page 163).

(viii) The perjury conviction did not justify the sting of the Fiona McGuire article:  Nothing in the perjury conviction met the sting of the Fiona McGuire article, comprising as it did a totally fabricated account involving inter alia bondage, spiked heels, orgies, and whipping.

(ix) None of the defenders’ grounds supported the contention that a new trial was “essential to the justice of the cause”:  Having regard to all the circumstances of the case, including abuse of process and inadmissibility of evidence, the defenders had not made out a case that it was “essential to the justice of the cause” to have a new trial.

(x) Ongoing criminal appeal proceedings:  The court could not, in fairness, reach any final conclusion adverse to the pursuer until the pursuer’s ongoing criminal appeal against his perjury conviction had been determined.

 

Reply on behalf of the defenders
[54]      Senior counsel submitted that there was no live criminal appeal:  only when the High Court accepted a reference from the Commission did a live appeal come into being (sections 124 and 194DA of the 1995 Act).  Questions of fact could not be determined in the civil appeal court.

[55]      The defenders were fully entitled to rely upon section 29(1)(c) and (e) of the 1988 Act. In relation to (c), a verdict returned on dishonest evidence was a verdict “contrary to the evidence” (cf Snodgrass v Hunter).  It could not be the intention of Parliament to protect from appeal verdicts based on dishonesty.  It was essential to the justice of the cause that a new trial be granted.

[56]      There was no contradiction in relying on the conviction to demonstrate res noviter (cf Maltman).  The further evidence showed that the earlier evidence was dishonest.  The defenders also relied upon the evidence of MM, and on the McNeilage video-tape. The pursuer claimed that the tape was a fabrication, but the defenders had circumstantial and expert evidence proving that it was genuine.

[57]      The defenders contended that the pursuer, by his dishonest evidence, had perpetrated a fraud on the court.  The perjured evidence covered so much of the territory of the civil jury issue that it was not possible to conclude that what was left (unperjured) could result in a safe verdict.  Had the true evidence been before the jury, the defenders’ senior counsel could properly have invited them to conclude that the pursuer was an adulterer, a swinger who participated in orgies and was no stranger to swingers’ clubs, a liar (prepared to destroy the reputation of others, including his own party members, in order to maintain those lies), and a hypocrite.  The defenders’ senior counsel would have been able to ask the jury whether this was a man of principle, serving a greater cause;  or whether, with regret, the jury should reply to the latter question in the negative, and to the earlier questions in the affirmative.

 

Discussion

Civil jury as finders-of-fact

[58]      It is a civil jury’s function to decide questions of fact (Thompson & Middleton, Court of Session Procedure page 109;  Ferguson v Western SMT Company Ltd 1969 SLT 213 (HL) at page 214).  A court should be slow to interfere with juries’ decisions, made, in effect, in their role as judges of fact at first instance (cf Thomas v Thomas 1947 SC (HL) 45;  Thomson v Kvaerner Govan Ltd 2004 SC (HL) 1 paragraphs [16] to [17];  McGraddie v McGraddie 2013 SLT 1212, [2013] 1 WLR 2477, paragraph [27] et seq;  Henderson v Foxworth Investments Ltd 2014 SC (UKSC) 12, 2014 SLT 775, paragraphs [62] to [67])

[59]      When a civil jury’s verdict is sought, court procedure permits elucidation of their reasoning, if that is thought necessary.  For example, once evidence has been led, the presiding judge may submit to the jury in writing (along with the issue and any counter-issue) such further questions as he or she thinks fit – questions which are usually formulated after discussion with counsel (Court of Session Rules rule 37.8;  Hajducki, Civil Jury Trials (2^nd edition) paragraphs 20.23, 21.15). 

[60]      In the present case, it would appear that some thought was given to the asking of a supplementary question or questions, but none was in fact put to the jury (defenders’ Appendix 2 Day 23 page 97).  Thus the jury answered the issue in a simple affirmative, and the counter-issue in a simple negative.

[61]      That approach was entirely proper.  However in a case as complex and multi-themed as the present, it is plain that several lines of reasoning were open to the jury.  This court cannot know what the jury made of certain witnesses or certain evidence:  cf dicta of Lord Reid in Ferguson v Western SMT Company Ltd cit sup:

 

“…We do not know precisely what the jury decided about the truthfulness of [certain] witnesses or about the extent to which their evidence should be discounted as being unreliable … what the court can and must do is to decide whether a reasonable jury … could reach [the conclusion reached] (emphasis added)”

 

Thus the jury’s verdict did not necessarily mean that they believed all of the pursuer’s evidence.  Although it is fair to say that the pursuer appears to have presented his case on the basis that his honesty and his marital fidelity were key issues, we do not consider that this was critical to his claim to have been seriously defamed by certain material which was before the jury.  The jury may well have disbelieved large parts of his evidence, and yet been satisfied that the issue should be answered in the way it was.

[62]      We consider that the route or line of thinking set out in paragraph [70] below was an obvious one.  We certainly cannot say that it was not the route adopted by the jury.  If the defenders had wished to clarify matters so that in any future motion for a new trial, such as the present application, a particular path or line of reasoning could be excluded as being one not adopted by the jury, it was for the defenders to take the necessary steps (for example requesting that certain specific supplementary questions be put to the jury). 

 

Section 29 of the 1988 Act:  test to be met

[63]      As noted in paragraph [29] above, section 29(1) of the Court of Session Act 1988 provides:

“Any party who is dissatisfied with the verdict of the jury in any jury action may … apply to the Inner House for a new trial on the ground –

1. of misdirection by the judge;
2. of the undue admission or rejection of evidence;
3. that the verdict is contrary to the evidence;
4. of excess or inadequacy of damages; or
5. of res noviter veniens ad notitiam;

or on such other ground as is essential to the justice of the cause.”

The words “as is essential to the justice of the cause” reflect the approach adopted in Maltman v Tarmac Civil Engineering Ltd 1967 SC 177, Lord President Clyde at page 181, Lord Guthrie at pages 184-5, and Lord Migdale at page 187.  Those words constitute, in our opinion, an overarching qualification which applies to each of the grounds (a) to (e).  While therefore we accept that section 29 permits the setting aside of a civil jury verdict in certain circumstances, we consider that the section will not necessarily be satisfied merely by proof that, for example, some of the evidence given during a civil jury trial amounted to perjury (cf the observations of Lord President Clyde in Maltman), or that some new material, which was unavailable at the trial, has since become available.  As Lord President Clyde noted at page 182 of Maltman, new evidence might result in a new trial only if it was “obviously of crucial importance for the determination of the case” (while at the same time pointing out that “it is not necessary for the court to be convinced that the new evidence will either certainly or probably lead to a different verdict”).  Similarly Lord Guthrie observed at pages 183-4:

“ … res noviter is simply a species of the genus matter ‘essential to the justice of the case’ …”

Thus in our opinion, any party seeking a new trial in terms of section 29 must satisfy the overarching test by demonstrating that one (or more) of grounds (a) to (e) is made out such that it is “essential to the justice of the cause” that the jury’s verdict be set aside and a new trial ordered.

 

This particular case

Introduction

[64]      As Lord Guthrie emphasised in Maltman v Tarmac Civil Engineering Ltd cit sup at page 184:

“The grant or refusal of a new trial must always depend on the peculiar circumstances of the case before the Court.”

 

[65]      In their motion for a new trial, the defenders rely on the pursuer’s criminal conviction for perjury, the McNeilage recording, and the allegations made by MM.  The pursuer challenges all three.  He maintains that he has evidence which will wholly undermine and discredit them.  For example, inadmissible evidence including evidence obtained by criminal phone-hacking led, improperly, to the perjury conviction.  The McNeilage recording was fabricated and purchased for £200,000.  The MM allegations were similarly the false product of unacceptable journalistic practices.  The defenders had throughout adopted practices which amounted to perverting the course of justice.  The pursuer argues that it follows that on any view the overarching test is not met.  The pursuer also advances the other arguments set out in paragraph [53] above. 

[66]      This court is an appellate court which does not hear evidence or make findings-in-fact.  We cannot, at this stage, make any findings-in-fact in relation to the McNeilage recording, the MM allegations, or the defenders’ practices.  As for the pursuer’s criminal conviction for perjury, whilst an application has been made to the Scottish Criminal Cases Review Commission, there was, at the date of the hearing, no decision relating to that application.  The pursuer’s case has not been referred to, or accepted by, the High Court of Justiciary.  That being so, we cannot ignore or set aside the existing criminal conviction for perjury. 

 

The civil jury trial in 2006

[67]      The civil jury trial in 2006 lasted five weeks.  The defenders led 24 witnesses;  the pursuer 13.  Three witnesses, namely Fiona McGuire, AK and KT, gave evidence that they had had sexual relations with the pursuer when he was a married man.  Witnesses also gave evidence about other sexual encounters involving the pursuer; the pursuer’s having visited Cupid’s Club on 26 November 2002, and events occurring there;  and the pursuer’s admitting to having visited the club at the SSP meeting on 9 November 2004.

[68]      The jury in 2006 heard all the evidence.  They were thus well-informed.  Moreover they saw and heard the witnesses as they gave evidence, and were able to assess not only the content of their evidence, but also the way in which it was given.  It was the jury’s function to assess the credibility and reliability of witnesses;  to decide whom to believe and whom to disbelieve;  to determine what inferences could be drawn from the evidence which they accepted;  to weigh up questions of current social standards, practices, and mores and to apply the legal directions given by the judge, parts of which are set out in paragraph [13] above (including the definition of defamation, and the terms of section 5 of the Defamation Act 1952).  This court should therefore be slow to interfere with any verdict reached by the jury (as already noted in paragraph [58] above).

[69]      The method by which the jury were to give their verdict was to answer the issue and counter-issue with a straight “Yes” or “No”.   As we have seen, the issue and counter-issue contained various matters.  They did not provide scope for the jury to express an explicitly discriminating verdict.  No supplementary questions were put to the jury for clarification.  Their answers were quite consistent with doubt as to the pursuer’s general credibility, and did not necessarily imply their total acceptance of every word of the pursuer’s evidence, for the following reasons.

[70]      As is well-established, the jury were entitled to believe parts of what a witness said, and to disbelieve other parts.  We consider it clear that the jury could not have returned the verdict they did if they had accepted the evidence of Fiona McGuire.  They were entitled to disbelieve Fiona McGuire’s evidence in its totality, and to accept the pursuer’s evidence that he had never met her, far less had the lurid sexual affair with her as described in the News of the World articles.  This was possible even if they believed KT’s evidence about her sexual affair with the pursuer, and disbelieved the pursuer in his denials.  They were entitled to reach such a conclusion.  They would also have been entitled to reach a similar conclusion about the evidence of the various members of the SSP who attended the executive meeting on 9 November 2004, and to disbelieve the pursuer’s account in relation to those matters.  This would result in a situation where the jury found themselves “somewhere in between” the two ends of the spectrum open to them (cf the judge’s charge, quoted in paragraph [13] above).  In that event, as the judge put it:

“ … if you found that some claims have been established and some not, then you would have to examine the question of whether or not the claim which had not been established did still materially injure Mr Sheridan’s reputation … [emphasis added]” 

 

[71]      The jury in those circumstances would be faced with what was truly a “jury question”, namely whether, applying their views and standards concerning acceptable boundaries for current sexual (and other) practices and mores, “the claim which had not been established did still materially injure Mr Sheridan’s reputation”.

[72]      In such a situation it was, in our opinion, open to the jury to conclude that the pursuer had lied to them in the civil jury trial about several matters (for example, about his relationship with KT, and about what he said at the SSP executive meeting on 9 November 2004, where his evidence had to be set against that of an impressive number of his former friends and colleagues) and yet to decide, on the basis of their assessment of all the evidence, that the unproved claim relating to Fiona McGuire was so torrid, lurid and salacious that the 5-page article about Fiona McGuire on 14 November 2004 (and further articles and headlines concerning Fiona McGuire) still did materially injure the pursuer’s reputation, in that the allegations in those articles tended to lower the pursuer in the estimation of even fairly liberal-minded members of society generally.  The jury were entitled to form the view that the behaviour said to have taken place with Fiona McGuire, described in the initial article referred to in paragraph [4] above and in ensuing articles, went far beyond what was regarded as normal or acceptable according to the practices and mores of current society, and beyond anything else which was alleged in the case, and that it had indeed caused damage to the pursuer’s character and standing.  Their response to the issue would then be “Yes” (and to the counter-issue, “No”). 

[73]      If the jury reached a conclusion somewhere in the middle of the spectrum described to them by the trial judge, it will be seen that the issue and counter-issue provided rather blunt instruments for communicating the particular path which they had adopted, their line of reasoning, and any subtleties or nuances involved in that reasoning and their ultimate conclusion.  All that the jury could do to communicate their reasoning and conclusion was to give a “yes” or a “no” answer.   They were not directed to attempt to give further details by way of qualifying the issue, and they did not have to address any supplementary questions. 

[74]      It seems to us therefore that the jury’s affirmative answer to the issue was likely to have been reached by a route which did not necessarily turn on the pursuer being awarded a  

badge of total credibility, total reliability, nor, indeed, total fidelity.

[75]      Against that background, we turn to consider the grounds upon which the defenders seek a new trial. 

 

Verdict contrary to the evidence

[76]      We are not persuaded by the argument that evidence of perjury at a trial opens the door to an argument that the verdict was contrary to the evidence within the meaning of section 29(1)(c).  We see the attraction of such an argument because it would allow the court to set aside the verdict under section 29 without further procedure.  However the plain meaning of a reference to a decision “contrary to the evidence” means contrary to the evidence actually before the jury.  The defenders’ argument involves the proposition that some evidence which was before the jury should be deemed not to have been before the jury.  The implication would be that a passage of evidence shown to have been perjured should be deleted, and their verdict assessed on the basis of the remaining evidence.  The court, in other words, would be asked to assess the evidence on the basis that the jury knew that the pursuer was, in certain respects, a liar.  We think that this is a far cry from what is usually comprehended by assessment of whether a verdict is contrary to the evidence.  In the present case, for example, the defenders could not succeed by showing that the evidence of the pursuer’s denials should be taken out of consideration because, as we have seen, it would have been entirely open to the jury to find in his favour on the basis of an adverse assessment of Fiona McGuire.  Similarly it would not suffice to show that evidence that the pursuer had lied about certain matters was to be taken to be before the jury.  They might have reached that conclusion themselves.

[77]      We recognise that an observation of Lord McLaren in Snodgrass v Hunter might be thought to provide some support for the argument that a conviction for perjury could found a motion for a new trial on the ground that the verdict was contrary to the evidence.  However his Lordship was not unambiguously to that effect, and in any event, the comment was plainly obiter.  It was made in a most unusual procedural context.  For present purposes, it is enough to say that we do not consider it an argument which avails the defenders in the circumstances of the present case.  We are satisfied that evidence of subsequent developments such as a conviction for perjury can provide an argument under the heading of res noviter.  That provides an appropriate method of ensuring that a just result can be achieved.

 

Res noviter veniens ad notitiam

[78]      As explained in paragraph [63] above, it is our opinion that any party seeking a new trial in terms of section 29 must satisfy the overarching test by demonstrating that one (or more) of grounds (a) to (e) is made out such that it is “essential to the justice of the cause” that the jury’s verdict be set aside and a new trial ordered.  As Lord President Clyde stated in Miller v Mac Fisheries Ltd 1922 SC 157 at page 160:

“….The allowance of res noviter is always more or less in the nature of an indulgence.  Accordingly, it may present to the court a delicate problem of discretion.  But it is an indispensable condition of the allowance that the res noviter should be material to the justice of the cause;  and it is inconceivable that it should be refused if it is seen to be such that to exclude it from the materials of judgment would prevent justice being done”.

 

[79]      The three elements relied upon by the defenders are:

• the pursuer’s conviction for perjury
• the McNeilage tape
• MM’s affidavit.

[80]      The conviction for perjury:  We are satisfied that, for the purposes of section 29, we are entitled to take the conviction as adequate evidence of the pursuer’s perjury.  That is so whether section 12 of the 1968 Act applies to make the matters established irrebuttable or whether, as contended by the pursuer, the appropriate provision is section 10 which would allow them to be relied upon unless the contrary were proved.  In other words, we can, for the present purposes, take the conviction as establishing, as a matter of fact, that the pursuer had a sexual relationship with KT between 1 January 2000 and 31 December 2005;  that the pursuer attended Cupid’s Club on 26 September 2002;  and that the pursuer made admissions about attending the club to SSP members and to the SSP executive committee meeting on 9 November 2004.  It follows that we must also take into account, as a separate matter, the fact that the pursuer lied about those matters in the civil jury trial. 

[81]      In this particular case, as outlined in paragraph [70] above, the civil jury in 2006 were entitled to conclude that the pursuer had lied about certain matters.  The jury would have been entitled to conclude that the pursuer had indeed visited Cupid’s Club, and that he had not told them the truth about that;  that he had indeed had a sexual relationship with KT, and that he had not told them the truth about that;  and that he had not told them the truth about admissions he had made to SSP members and to the SSP executive committee on 9 November 2004.  Nevertheless the civil jury, weighing up the evidence they had heard, the conclusions they had reached, and their own views about current standards and mores, and applying the directions in law given by the trial judge, would have been entitled to conclude (as outlined in paragraphs [71] et seq above), that the unproved claim relating to Fiona McGuire had been so extreme that the articles about Fiona McGuire did still materially injure the pursuer’s reputation, character and standing.  In other words, the jury were entitled to conclude that the pursuer was not perfect;  that he had lied to them in some respects;  but that he was not someone who drank champagne, participated in orgies, and indulged in kinky sex including bondage, spiked heels, and whipping, those latter allegations being ones which tended to lower the pursuer’s reputation in the estimation of right-thinking members of society generally.  Neither was he, in their assessment of current social mores and practices, a hypocrite or an abuser of his position of power as a party leader, allegations which again tended to lower the pursuer’s reputation in the estimation of right-thinking members of society generally.

[82]      If that was, indeed, the approach the jury took, evidence about the pursuer’s conviction for perjury and about the fact that he lied in the civil jury trial about visiting Cupid’s Club, having made certain admissions to SSP members, and having a sexual relationship with KT, would simply amount to an endorsement of the jury’s assessment, adding nothing new.  As we see no sound basis confidently to assert that the jury did not adopt the route outlined in paragraph [70] above, it follows that we are not persuaded that the conviction for perjury would, in the words of Lord President Clyde in Miller v Mac Fisheries, “[import] into the case any new feature, [or put] any new complexion upon it”, nor that the conviction for perjury makes it essential to the justice of the cause that the verdict reached by the jury in 2006 should be quashed, and a new trial ordered.  We comment further below on the special features of this case which support that view.  We think it right to say in more general terms that we accept that a conviction for perjury by a party to a litigation will normally be expected to result in a rehearing.  Perjury is a serious matter.  It can usually be seen to go to the root of a case and to put a new complexion on the whole evidence.  An important feature of this case was that the material before the jury involved a multiplicity of issues, and in particular, the perjury conviction did not have a direct bearing on the Fiona McGuire article.

[83]      The McNeilage tape:  The genuineness and content of the tape has not been proved.  The pursuer’s position is that it is a complete fabrication.  Without evidence being led, we are unable to express any concluded view as to its provenance or authenticity.  However, for present purposes only, we must assume that it can be established that the tape is genuine,

and that the transcript (Supplementary Appendix pages 4 to 13) is an accurate one.  This raises issues similar to our consideration of the perjury conviction.  We must assume that it would be established that there was a conversation in which the pursuer admitted to Mr McNeilage that he had visited Cupid’s Club in 1996 and 2002, and said that he had made a mistake, but did not wish to admit anything until he was faced with “incontrovertible evidence”.  If we are to take the tape as truly expressing the pursuer’s view, we can see that he was furious that certain information had been disseminated amongst some SSP members, that they were talking about him behind his back, and that they appeared to have agreed that he should admit to visiting Cupid’s Club and resign as party convener without even having heard his side of the story.  We also note that he was emphasising that he had never met the “lassie … being [harassed by the News of the World]” (by inference, Fiona McGuire), far less had an affair with her.  The pursuer was angry that another party member had leaked KT’s name to the News of the World.  He felt that he had lost friends, and felt badly let down and betrayed by some people.  He acknowledged that he had “made a mistake and [he needed] to pay for that mistake”.   

[84]      In our opinion, the themes outlined in the preceding paragraph would not necessarily import into the case any new feature, or put any new complexion upon it.  As noted in paragraph [74] et seq above, the verdict of the jury did not necessarily award the pursuer a badge of total credibility, total reliability, or total fidelity.  There were several routes of reasoning open to the jury in 2006, at least one of which would have involved the jury’s rejection of the pursuer’s denials about visiting Cupid’s Club, rejection of his denials about making admissions to SSP members, and rejection of his denials about a sexual relationship with KT.  In those circumstances, the taped conversation with Mr McNeilage would add nothing new.

[85]      We are not therefore persuaded that the McNeilage tape amounts to such a res noviter as to entitle the defenders to set aside the verdict of the jury in 2006, nor that the McNeilage tape makes it essential to the justice of the cause that the verdict reached by the jury in 2006 should be quashed, and a new trial ordered.

[86]      MM’s affidavit:  The pursuer denies having had any sexual affair with MM.  This is therefore a disputed matter which would require the leading of evidence before a court which could make findings-in-fact and reach a conclusion.  For present purposes only, we assume that the contents of MM’s affidavit could be established in a proof.  In the affidavit (defenders’ Supplementary Appendix pages 36 to 51) a witness named MM apparently states on oath that she had sexual intercourse with the pursuer “on several occasions over a long period, from when [she] was 15 years old until 39-years-old”.  She gives details of a childhood friendship;  a puppy love for the pursuer when she was about eleven years old;  two years absence as a young teenager when she did not see the pursuer;   love at first sight when she returned to Glasgow aged 15, saw the pursuer again, and began a sexual relationship with him; and a continuing but intermittent sexual relationship with him over the ensuing years, both before and after his marriage. 

[87]      In our opinion, the revelation of a childhood sweetheart affair which became sexual and which continued intermittently over a considerable time (including after his marriage) would again neither import into the case any new feature, nor put any new complexion upon it.   As noted in paragraph [70] above, the jury in 2006 were entitled to disbelieve the pursuer’s denials about having an extra‑marital affair with KT.  Evidence about another intermittent extra-marital sexual affair with MM (denied by the pursuer) would not in our opinion significantly alter such a view, but would merely provide “further corroboration of the evidence already given for one party” (namely, the defenders), and “add somewhat to the contradiction of evidence already given for the other” (cf Miller v Mac Fisheries). 

[88]      We are not therefore persuaded that the contents of MM’s affidavit and her evidence, if proved in court (despite the pursuer’s denials), would have added significantly to the nature of the material before the jury or that MM’s affidavit or evidence that she had an extra‑marital sexual affair with the pursuer as outlined above makes it essential to the justice of the cause that the verdict reached by the jury in 2006 should be quashed, and a new trial ordered.

 

“Essential to the justice of the cause”

[89]      As noted above, we accept that the words “essential to the justice of the cause” constitute an overarching provision, applying to each of the grounds (a) to (e).  However senior counsel for the defenders also presented a self‑standing submission under the heading “essential to the justice of the cause”, and for completeness we give our views on that submission.

[90]      In 2006, the civil jury heard twenty days of evidence.  The jury were in the best position to make judgments about inter alia the credibility and reliability of witnesses, what weight to give evidence, and the sexual (and other) standards and mores applicable at the time.  The jury must be assumed to have obeyed the directions in law given by the judge.  The precise route by which they reached their ultimate decision cannot be discerned from the simple affirmative answer which they gave to the issue.

[91]      At least one route of reasoning open to the jury was, in our opinion, as outlined in paragraph [70] above.  As already noted, we, as an appeal court viewing the jury’s simple “yes” verdict (and not having been privy to the jury’s deliberations in the jury room), cannot confidently assert that the jury did not adopt that particular route or some similar route.  If the jury did so, they could not be criticised for so approaching matters.  It was a route which might have appeared to make obvious sense of the conflicting material before them.  We acknowledge that the defenders seek to present evidence demonstrating that the pursuer lied on many important aspects of the case, and contradicting one of his main contentions, namely his total marital fidelity.  However this was a wholly unusual case.  It seems to us likely that if the jury were satisfied that the substantive allegations made by the newspaper in November 2004 were false, the pursuer’s reputation would have been damaged by those allegations in a way quite different from the impact of the allegations which the defenders subsequently produced by way of a defence, whatever the truth of those allegations. 

[92]      We also have in mind the broader arguments presented by the pursuer in support of his contention that there were special circumstances arising from the defenders’ conduct which meant that a re-hearing was not essential to the justice of the cause.  He presented a persuasive argument based on material in the defenders’ own records.  He acknowledged that we are not a fact-finding body, but invited us instead to consider the weight of the material.  He faces the difficulty that any finding of relevant facts would have to be done by a court below.  By that stage, it would be too late for the application of the overarching test in section 29(1) of the 1988 Act.  The court would be limited to questions of admissibility of evidence.

[93]      Senior counsel for the defenders quite properly made no attempt to explain or rebut the inferences which the pursuer sought to draw from the material before us, recognising that we were hearing a motion for a new trial, and not a proof.  But all of his submissions were based on the premise that it was undisputed that that material was indeed, as it bore to be, material recovered from the defenders.  In the light of the time spent on the material, we have no doubt that the defenders would have indicated that they were challenging its provenance, if that had indeed been their position.

[94]      It is difficult to see what answer there might be to some of the allegations made.  We were directed to what appeared to be records of e-mails showing deliberate steps taken by the defenders to ensure that Fiona McGuire would not be available if the pursuer’s motion to recall her had been successful.  There is material apparently tending to show that she was provided with a trip to Dubai at the relevant time for that express purpose.  The pursuer also contrasted two sets of documents apparently printed from the defenders’ records and appearing to show that in the document produced in response to an order of the court in the criminal trial, the defenders had falsified the record by excluding an entry which would have confirmed that they had indeed paid for such a trip.  Other material was relied on as apparently showing a pattern of phone-tapping, which was said to have allowed the defenders to identify and trace people with whom the pursuer had private contact, with a view to compelling them to give evidence against him.  We found the pursuer’s analysis sufficient to demonstrate a prima facie case for the defenders to answer, and it was far from clear what answer, if any, there could be.

[95]      Had we been in a position to treat the pursuer’s allegations as established fact, we consider that the picture thus painted would have been indicative not only of wilful contempt on the defenders’ part in relation to a specific order of the court in the criminal process, but also of such a disregard for proper journalistic conduct and for certain requirements of the criminal law that we would have had to give serious thought to the question whether the defenders should be allowed to proceed further.

[96]      We have concluded that, in weighing up the question whether the defenders have demonstrated a need for a new trial as being essential to the justice of the cause, we should not ignore this material.  As discussed above, the jury award appears to us to demonstrate a discriminating verdict on the evidence before them.  In all the circumstances we are not persuaded that a new trial in this complicated and unusual case is essential to the justice of the cause between these two parties.

[97]      That is sufficient to dispose of the substantive issue before us.  We deal briefly with certain submissions summarised by the pursuer in his note of argument.

(i) Competency:  We are not persuaded that it was incompetent to include full pleadings in the minute concerning res noviter, possibly going beyond the parameters of the res noviter facts or arguments.  This matter is not governed by any explicit rules of court, and we think the critical issue is that of adequate notice.  The pursuer had adequate notice of the points being taken.  (ii) Relevancy:  On one view, the conclusion which we have reached accords with the pursuer’s arguments under this head. (iii) Abuse of process:  We have dealt with this.  (iv) Inadmissibility of evidence illegally obtained:  This is a matter which would require a full exploration of fact and law (including the meaning and import of sections 10 and 12 of the 1968 Act). (v) The defenders’ impeachment of their own witness was not a good ground of appeal:  We do not accept that the fact that the defenders chose to lead the pursuer in evidence prevents them from attacking the pursuer as (in their submission) an incredible and unreliable witness.  Scottish procedure has not followed the English course of requiring the permission of the court for a party to treat as hostile a witness led by that party.  (vi) Perjury in itself could not found res noviter:  As we understood it, the pursuer’s substantive argument under this head was that a plea of res noviter was based on the proposition that evidence which might have been led was not led because its existence was not known.  It was argued that a conviction for perjury following a trial was a matter which plainly could not have been led at the trial.  We consider this too narrow an approach.  Dicta referring to material “which could have been led” must be read in context.  We have no doubt that a subsequent perjury conviction in respect of the trial should normally be accepted as res noviter.  Whether a specific conviction would be sufficient to justify a new trial would be a question of circumstances.  (vii) The McNeilage tape and MM’s evidence did not constitute res noviter:  We need not add to the views expressed above in relation to these pieces of evidence.   (viii) The perjury conviction did not justify the sting of the Fiona McGuire article:  As noted above, we agree with this submission.  (ix) None of the defenders’ grounds supported the contention that a new trial was “essential to the justice of the cause”:  As noted above, we agree with this submission.  (x) Ongoing criminal appeal proceedings:  As explained in paragraph [66] above, we do not accept that there is a live criminal appeal.

[98]      Journalistic methods:  We have commented above on the pursuer’s allegations as to the illegality and impropriety of the defenders’ conduct.  We can reach no concluded view on such matters.  A proof or a criminal trial would be necessary to enable facts to be explored and submissions made.  We accept that the documents lodged by the pursuer in his Appendix raise serious questions about the conduct of senior members of staff of the defenders.  We were urged to report matters to the Crown Office.  However it seems to us that a formal report is not appropriate, as the activities of certain members of the defenders’ staff are, or have been, the subject of investigation by the police, the Crown Office, and the Scottish Criminal Cases Review Commission.  The pursuer’s assertions are already in the public domain.

 

Decision

[99]      In the result, we refuse the defenders’ motion for a new trial.  We reserve meantime any question of expenses.