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WILDCAT HAVEN ENTERPRISES CIC AGAINST ANDY WIGHTMAN [2020] ScotCS CSOH_30 (11 March 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_30.html
Cite as:
[2020] ScotCS CSOH_30,
[2020] SLT 473,
2020 GWD 11-159,
[2020] CSOH 30
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OUTER HOUSE, COURT OF SESSION
[2020] CSOH 30
A111/17
OPINION OF LORD CLARK
In the cause
WILDCAT HAVEN ENTERPRISES CIC
against
ANDY WIGHTMAN
Pursuer
Defender
11 March 2020
Pursuer: Mr P. O’Donoghue; Lay Representative
Defender: Dunlop QC; Balfour + Manson LLP
Introduction
[1] In this action, the pursuer alleges that it suffered loss and damage as a result of the
defender publishing defamatory material on internet blogs, Twitter and Facebook. The
pursuer seeks damages in the sum of £750,000 and also seeks interdict to prohibit the
publication of such material. The action called before me for a proof before answer. On
behalf of the pursuer, an application was made under the relevant procedural rules to allow
lay representation by Mr Paul O’Donoghue, who is a director of the company. The motion
was opposed by senior counsel for the defender. I was satisfied that the requirements of the
rules were met and I therefore granted the application.
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The pursuer’s pleadings
The published material founded upon by the pursuer
[2] The defender published blogs on his website which made statements about the
pursuer. The pursuer is a private limited company registered in England. It is the
fundraising vehicle for Wildcat Haven CIC (“WHCIC”), a company which has as its object
the conservation of Scottish wildcats. The pursuer raises funds for WHCIC by various
means, including selling small souvenir plots of land. The defender’s website is entitled
“Land Matters…the blog and website of Andy Wightman”. He published two blogs which
are said by the pursuer to contain defamatory statements. He also published or posted
certain other allegedly defamatory statements on the social media platforms of Twitter and
Facebook. The pursuer also refers to comments posted by others on the defender’s website
as being defamatory, for which the defender is said to be responsible. In order that the
numerous allegations of defamation made by the pursuer can be properly understood and
viewed in context, the blogs, comments, tweets and Facebook post are set out in the
Appendix to this Opinion. Rather than set out every tweet or comment, I have identified
only those that have any real bearing on the matters raised in the action. The Appendix
follows the order in which the allegations appear in the pursuer’s pleadings. When I come
to discuss the allegations pled, I shall refer to the relevant section of the Appendix.
However, when narrating below the parties’ submissions on the allegedly defamatory
imputations, and giving my reasons, a number of the statements made are set out. The
identities of the various individuals referred to in the blogs, or who made comments or
tweets, are not of particular relevance. I have therefore removed the names or profiles of
those persons. Where hyperlinks appear in the blogs, these are underlined. I have had
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regard to the full content of the published material relied upon by the pursuer in its
averments, which I now briefly summarise.
Blog 1
[3] Blog 1 (set out in the Appendix, section 1) was published on 28 September 2015. The
heading (or headline) at the start of the blog stated:
“Wildcat Haven, Bumblebee Haven or Tax Haven?”
Below these words, there was a box or graphic stating “Wildcat Haven is supported by…”
and containing the logos of firstly, Highland Titles Limited (“HTL”), and secondly
Volkswagen. The blog then went on to refer to Wildcat Haven as a project designed to
protect the Scottish wildcat. It referred to one of the sponsors being HTL, a company based
in Alderney that is wholly owned by a charitable trust, Highland Titles Charitable Trust of
Scotland (“HTCTS”), registered in Guernsey. The blog mentioned that HTL appeared to
have established a very close relationship with WHCIC and with the pursuer, and explained
aspects of that relationship, including that HTCTS was identified as the body which would
receive the assets of the pursuer should it be wound-up. It stated that Wildcat Haven had
adopted Highland Title’s dubious methods of selling small souvenir plots of land and
claiming that the purchaser became the owner. Reference was then made to a letter from a
university law professor to a newspaper, which explained the legal position in relation to
ownership of souvenir plots. The blog also mentioned issues about the location of the plot
of land from which the pursuer was selling souvenir plots, including that the plot was part
of land (75 hectares in area) owned by HTL. An addendum was made to the blog, giving
details of discussions between the defender and a senior official in the Channel Islands
about access to accounting information regarding HTL and HTCTS.
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Update to blog 1
[4] At 3 pm on 30 September 2015 the defender added what was described as an
“Update” to blog 1 (Appendix, section 2). The update set out a response to blog 1 which had
been received by the defender from a director of the pursuer. Among other things, the
response stated that: HTCTS was to be replaced by another entity as the body to receive
assets in the event of the pursuer being wound up; that the sale of souvenir plots was “a bit
of fun”; that the “FAQ” on the Wildcat Haven website outlined that registration of souvenir
plots was legally impossible; and that HTL had gifted part of its land to the pursuer. The
update then went on to list a number of questions posed to the director of the pursuer by the
defender, the last of which was whether “Highland Titles” received any payment or
commission from the sale of souvenir plots by the pursuer.
Blog 2
[5] In blog 2 (Appendix, section 3), published on 24 February 2016, the heading was
“Highland Titles day” followed by the same graphic as that in blog 1. Blog 2 contained a
hyperlink to blog 1 and referred to it as being a blog about HTL’s latest effort to raise lots of
money. Blog 2 referred to the sale of souvenir plots and the controversy generated by doing
so. It also referred to the financial affairs of HTL being opaque and it being registered in “a
secrecy jurisdiction”. It named an individual who was said to be a director of both HTL and
the pursuer, as well as being a trustee of HTCTS. The blog then referred to HTCTS as being
the designated body to become the potential recipient of assets from the pursuer. The
questions asked by the defender in the update to blog 1 were repeated and further
comments by the defender about the questions were also set out. Reference was again made
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to the 75 ha site and the income that would be generated by the sale of plots on it. The blog
went on to say that Wildcat Haven had been seeking to become involved in the community
acquisition of a Forestry Commission forest near to Loch Arkaig. It ended with a statement
that in early June 2015 “Highland Title’s bankers and corporate service providers in
Guernsey gave notice of the termination of their services”. It then stated that Wildcat Haven
Enterprises CIC (the pursuer) was incorporated in 30 June 2015.
[6] The pursuer avers that read in isolation and in conjunction with the comments
generated by them (noted below) blog 1, the addendum and update, and blog 2 made eight
separate defamatory imputations, which I deal with in turn later.
Tweets
[7] The pursuer goes on to aver that on 30 September 2015, after the publication of
blog 1, the defender posted a number of tweets on his Twitter account (Appendix, section 4)
addressed to “@wildcathavenuk” and asking questions about points mentioned in blog 1.
The pursuer avers that these questions demonstrated the defender’s lack of knowledge
about the pursuer’s activities at the time he published blog 1 and his failure to seek comment
from the pursuer on the allegations in blog 1. The last question is said by the pursuer to
show “that the defender had no factual basis for his allegations about a financial link
between the proceeds of the pursuer’s sales and HTL at that time”. The pursuer goes on to
aver that the defender also posted tweets on 29 September 2015, three of which are
identified (Appendix, section 5). The pursuer avers that these tweets, taken in the context of
all of the defender’s comments and statements about the pursuer, showed that the defender
was not simply commenting on the practice of selling souvenir plots. Rather, he was falsely
accusing the pursuer of “funnelling” the proceeds of sale of souvenir plots into tax havens.
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The second of the defender’s tweets of 29 September 2015 was said to be defamatory in its
own right in respect that it made the same false statement.
Facebook post
[8] The pursuer then refers to a Facebook post by the defender dated 25 February 2016
(Appendix, section 6), which contained a link to blog 2. The pursuer avers that the post
contained a defamatory statement that Wildcat Haven, and by innuendo the pursuer, had
been dumped by their bankers and corporate service providers.
Comments on the blogs
[9] The pursuer also lists in its averments a number of comments from third parties
(made following blog 1) published on the defender’s website. These comments (Appendix,
section 7), posted on 29 and 30 September 2015, are also said by the pursuer to be
defamatory, whether taken in their own right or read in conjunction with the blogs, and said
to have the same meaning as two of the eight defamatory imputations alleged to have been
made in the blogs.
Further tweets
[10] Averments are made by the pursuer about tweets by the defender between
16 November 2012 and 3 May 2017 (Appendix, section 8). Given the number of tweets
mentioned, and the fact that they refer largely to HTL and HTCTS, I do not set them out in
full in the Appendix. Several of the tweets refer to “Highland Titles” being, or operating, a
“scam”. Other tweets refer to the bankers and corporate service providers of Highland
Titles having withdrawn their services. The pursuer avers that the defender did not rebut or
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deny the suggestions made in these tweets by the others. These tweets were also alleged to
be defamatory of the pursuer in the same manner and extent as two of the eight defamatory
imputations averred earlier in relation to the blogs.
Further averments
[11] The pursuer avers that the offer for sale of souvenir plots of land made on its website
did not represent that persons who bought these plots would obtain a real right to the land.
The sales are said by the pursuer to be a marketing device which enables supporters of
Wildcat Haven to donate funds in a novel, imaginative and light-hearted way. Such sales
are said to be a commonplace method of raising funds for charitable and other causes. The
pursuer’s website stated that members of the public were being asked to help the pursuer by
actually buying part of the land that Wildcat Haven planned to conserve. It also stated that
“It’s a bit of fun, being Laird of an estate, even if the estate is only a square foot of land. You
may [style] yourself as Lord or Lady of Wildernesse…” At the time of the publication of
blog 1, the land comprising the souvenir plots was owned by HTL. Subsequent to the
publication of blog 1, HTL gifted a parcel of land to the pursuer. The pursuer further avers
that the defamatory material centred on the activities of the pursuer and not simply on the
practice of selling souvenir plots. The material inaccuracies at the centre of the defender’s
defamatory statements are said to be that the proceeds of sale of souvenir plots sold by the
pursuer were not being used to fund wildlife conservation but were being paid to HTL and
were being diverted into an offshore tax haven away from public scrutiny.
[12] The sum claimed in damages by the pursuer is £750,000. The pursuer avers that as a
result of the defamatory imputations contained in the published material it has suffered
reputational damage and financial loss. The losses are said to include that prior to the
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publication of blog 1 the pursuer was involved in a proposal to purchase from the Forestry
Commission an area of forest, as a community venture in partnership with a body called
Arkaig Community Forest (“ACF”), and that opportunity has been lost. The purchase was
to be funded by a grant of £500,000 from HTL. The pursuer alleges that, as a result of blog 1
and the comments which it generated, the proposal fell through because ACF immediately
withdrew from the proposed partnership. The pursuer also avers that the volume of sales of
souvenir plots diminished straight after the publication of the blogs.
The defender’s pleadings
[13] The defender avers that the words used in the various material that was published
were not capable of bearing, and in any event did not in fact bear, the meanings complained
of by the pursuer. The defender also avers that the blogs represented the defender’s honest
comment on matters of public interest, conveying his opinions, honestly held by him. The
facts upon which the comments were based were both accurately stated and sufficiently
referenced. The defender also avers that, in any event, the blogs were published on an
occasion of privilege and fell within the defence of Reynolds privilege (derived from Reynolds
v Times Newspapers Ltd and Ors [2001] AC 127). The trade in souvenir plots is said to be a
matter of public interest and concern. In relation to the alleged loss, the defender avers that
the true reason why ACF withdrew from the partnership proposal was that the pursuer had
failed meaningfully to engage with its requests for further information. The defender also
denies causing any loss relating to the volume of sales of souvenir plots.
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Community interest companies
[14] The blogs make reference to the concept of a Community Interest Company (“CIC”),
and that the pursuer is such a company, as is WHCIC. A CIC is required to use its assets,
income and profits for the benefit of the community it is set up to serve. It is also a
requirement of a CIC that it has in its articles of association an “asset-lock” provision, which
includes that, in the event of winding-up, the assets of the CIC will be transferred to a
nominated “asset-locked body” that is another CIC, or a charity, or a body established
outside Great Britain that is equivalent to a CIC or a charity. At the time of publication of
blog 1, HTCTS (which is associated with HTL) was the designated asset-locked body of the
pursuer. Following the publication of blog 1, the pursuer altered its articles of association by
changing the designation of the nominated asset-locked body to a different entity,
unconnected with HTL or HTCTS. In blog 2, the defender incorrectly repeated the assertion
that HTCTS was the pursuer’s designated body for asset-lock purposes.
Evidence and submissions
Witnesses
[15] Mr O’Donoghue gave evidence on behalf of the pursuer. His evidence-in-chief took
the form of a witness statement which he adopted as part of his evidence. He was then
cross-examined by senior counsel for the defender. Thereafter, he was given the
opportunity (in effect, re-examination), to state his observations on the points raised in
cross- examination and he did so. The evidence of Mr O’Donoghue covered his personal
details, his involvement with wildcat conservation, WHCIC and the pursuer and their
relations with HTL and HTCTS. He referred to the terms of the blogs, the addendum and
update, comments posted by others, tweets and the Facebook post by the defender and
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stated why these were false and defamatory. He spoke about the lack of any attempt by the
defender to contact the pursuer prior to publishing the blogs and other material, and the
impact of the defender’s statements upon the pursuer and on him personally. He explained
why the pursuer asserted that the statements were made maliciously. He also dealt with the
losses alleged to have been suffered by the pursuer. No other witness was called on behalf
of the pursuer.
[16] Two witnesses were called for the defender. The first was Mr Servant from ACF. He
spoke to the reasons why ACF had declined to deal with the pursuer in relation to the
potential purchase of the forestry site at Arkaig. The defender then gave evidence, including
about the documents and information that he had considered and the research he had
carried out prior to making the blogs and other comments. In cross-examination he denied
acting maliciously and explained why the points that he had made were not defamatory, or
were substantially true or fair comment and had been stated in the public interest.
Submissions
[17] When I come to deal with each defamatory allegation, I shall summarise in broad
terms the evidence relied upon and the submissions in respect of that allegation before
giving my decision on it. It may however assist if I set out, very briefly, a summary of the
respective submissions.
Submissions for the pursuer
[18] The pursuer’s position was that the defamatory statements mainly focused on the
assertion that the pursuer operated through a tax haven. The pursuer was said to be
portrayed as an operation carrying out scams and acting illegally. Numerous statements
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had been made on multiple platforms over a sustained period. The reasonable reader would
be led to believe that:
“the pursuer was a tax dodging scam, designed to con the public out of money and
then funnelling money donated to wildcats to the Channel Islands, to line the
pockets of corporate fat cats and aristocratic landed gentry”.
The defender had admitted publishing factually incorrect information. He had been reckless
and irresponsible and driven by malice. He had a clear disdain both for HTL and tax havens.
He had stated that HTL and the pursuer are the same entity. The damage caused by the
defender’s publications had been disastrous and had destroyed a promising venture that
was providing, and would have continued to provide, valuable funds for wildcat
conservation. The vast majority of the statements published by the defender were
statements of fact and so the defence of fair comment did not apply. If there were any
comments, they did not state the facts that were founded upon, were not in the public
interest, and were in any event driven by malice. Lack of responsibility on the part of the
defender and the malicious nature of his statements defeated his arguments about qualified
privilege. The defences should be rejected. Reference was made to Allen v Times Newspapers
[1975] AC 135; Cooper, Defamation and Verbal Injury (2nd ed.); Joseph v Spiller [2011] 1 AC 852; Tse
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Submissions for the defender
[19] On behalf of the defender, it was submitted that the pursuer had stuck doggedly to a
position that was simply not borne out by the evidence. The meanings asserted by the
pursuer were not justified by the words used. In any event, most of the statements were
covered by the defence of fair comment. To the extent that factual assertions were made,
these were substantially true. There was no allegation anywhere that the pursuer had paid
HTL anything. As the pleaded meanings were largely not conveyed by the words used, that
was an end to the matter. If the court was prepared to ask itself what is the true sting of the
blogs, the answer was that the reasonable reader would have derived from them the simple
impression the pursuer had hooked up with and adopted the business model of HTL, and
that the defender was criticising the business model as dubious and controversial. This was
all covered by the defence of fair comment. However, this true sting was not pled by the
pursuer. In so far as there were any factual inaccuracies, these would not destroy defence of
fair comment. The Facebook post complained of, when read along with blog 2, was not
defamatory. The tweets complained of were not defamatory and in any event the various
defences referred to also applied. In relation to the comments of others posted on the
defender’s blog, in terms of the Electronic Commerce (EC Directive) Regulations 2002,
regulation 19, the defender was not liable. The defence of Reynolds privilege only required
to be resorted to if the pursuer’s pleaded meanings were both valid and not addressed by
the defences of veritas or fair comment. The defender had made the statements in the public
interest. His journalism was responsible. It satisfied the considerations listed in the Reynolds
case. The defender had explained in his evidence why he did not seek any comment in
advance of publication and respect should be given to his editorial judgement in that regard.
The inclusion of any inaccurate facts was of limited importance and should not destroy the
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privilege. There were significant doubts as to whether the pursuer’s allegation of malice had
any relevance to these proceedings. In addition to there being no real role for malice, the
suggestion of malice was not made out. Turning to the question of damages, the pursuer
required to show either actual financial loss or harm to trading reputation. Neither of these
had been established. Much of the documentary evidence had not been spoken to by any
witness. No satisfactory evidence of loss had been advanced. The pursuer had agreed at a
previous hearing in the case that evidence would be needed from a forensic accountant to
establish loss. The absence of such evidence was telling. This action was highly regrettable
and had involved considerable expense. It was an attempt to silence a commentator who
was exercising a legitimate entitlement to make comment and to raise concerns on matters
which were admittedly in the public interest. His freedom to criticise and to ask questions
should prevail. Reference was made to Russell v Stubbs Ltd 1913 SC (HL) 14; James v Baird
1916 SC (HL) 158; Macleod v Newsquest (Sunday Herald) Ltd 2007 SCLR 555; Koutsogiannis v
Sunday Mail Ltd 2010 SLT 377; Massie v McCaig; Defamation Act 1952, section 6; Joseph v
Reynolds v Times Newspapers Ltd; Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359;
Flood v Times Newspapers Ltd [2012] 2 AC 273; GKR Karate (UK) Limited v Yorkshire Post
Newspapers Limited and Others (No. 2) [2000] EMLR 410; Thomson v Ross, unreported, 18 July
2000; Lewis v Daily Telegraph [1964] AC 234; Waverley Housing v BBC, unreported, 10 March
1993; Electronic Commerce (EC Directive) Regulations 2002, regulation 19; and Gateway
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Decision and reasons
Relevant legal principles
[20] I begin by setting out the relevant legal principles on the following key matters: the
meaning of the statements complained of, the defences of fair comment and veritas and the
responsibility of a website proprietor for comments made by others. For convenience, I will
deal with what in this case are more general issues of malice and Reynolds privilege after
discussing the individual defamatory imputations, and then turn to the issue of loss.
Assessing whether statements are defamatory
[21] Words are defamatory when they cause harm to reputation. Among the classic
definitions of defamation is whether the imputation would tend to “lower the [pursuer] in
the estimation of right-thinking members of society generally”: Sim v Stretch [1936] 2 All ER
1237 (at 1240). This approach is applied in cases in Scotland: see eg Massie v McCaig; Kinley
v Devine 2014 CSOH 67. It is for the pursuer to aver the meaning which he alleges that the
words complained of bear and it is that alleged meaning which the court requires to
consider: Russell v Stubbs Ltd; James v Baird. The approach taken to identifying the meaning
to be ascribed to the words is an objective one, involving a consideration of what the
reasonable man would take from a reading of the material complained of: Duncan v
Associated Scottish Newspapers Ltd 1929 SC 14, 1929 SLT 454 (per Lord Anderson at 20). The
ordinary meaning of words includes what the reasonable reader would read into them. It is
“necessary to confine innuendoes upon, and inferences from, such words within an area
which admits of their being made without strain and as an expression of the reasonable,
natural, or necessary meaning of the words employed”: Russell v Stubbs Ltd (per Lord Shaw
at 402-3). The ordinary and natural meaning of words may be either the literal meaning or it
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may be an implied or inferred or an indirect meaning; any meaning that does not require the
support of extrinsic facts passing beyond general knowledge but is a meaning which is
capable of being detected in the language used can be a part of the ordinary and natural
meaning of words: Lewis v Daily Telegraph (per Lord Devlin at 279).
[22] The court should focus on how the ordinary reasonable reader would construe the
words, being particularly conscious of the context in which the statement was made:
Stocker v Stocker at [39]-[40]. The individual elements of the proper approach have been
narrated in several cases in England: see e.g. Allen v Times Newspapers; Jeynes v News
Magazines Limited. These include that the governing principle is one of reasonableness and
that the ordinary hypothetical reader is taken to be representative of those who would read
the publication in question. In Scotland, there is a helpful compilation of dicta in this regard
in Lord MacPhail’s decision in Macleod v Newsquest (Sunday Herald) Ltd at [13]-[14]. The
principles in relation to meaning were more recently summarised by Nicklin J in
Koutsogiannis v The Random House Group Limited (cross-references omitted):
“11. The Court’s task is to determine the single natural and ordinary meaning of the
words complained of, which is the meaning that the hypothetical reasonable reader
would understand the words bear. It is well recognised that there is an artificiality in
this process because individual readers may understand words in different ways …
12. The following key principles can be distilled from the authorities …
(i) The governing principle is reasonableness.
(ii) The intention of the publisher is irrelevant.
(iii) The hypothetical reasonable reader is not naive but he is not
unduly suspicious. He can read between the lines. He can read in
an implication more readily than a lawyer and may indulge in a
certain amount of loose thinking but he must be treated as being a
man who is not avid for scandal and someone who does not, and
should not, select one bad meaning where other non-defamatory
meanings are available. A reader who always adopts a bad
meaning where a less serious or non-defamatory meaning is
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available is not reasonable: s/he is avid for scandal. But always to
adopt the less derogatory meaning would also be unreasonable: it
would be naive.
(iv) Over-elaborate analysis should be avoided and the court
should certainly not take a too literal approach to the task.
(v) Consequently, a judge providing written reasons for
conclusions on meaning should not fall into the trap of conducting
too detailed an analysis of the various passages relied on by the
respective parties.
(vi) Any meaning that emerges as the produce of some strained, or
forced, or utterly unreasonable interpretation should be rejected.
(vii) It follows that it is not enough to say that by some person or
another the words might be understood in a defamatory sense.
(viii) The publication must be read as a whole, and any ‘bane and
antidote’ taken together. Sometimes, the context will clothe the
words in a more serious defamatory meaning (for example the
classic “rogues’ gallery” case). In other cases, the context will
weaken (even extinguish altogether) the defamatory meaning that
the words would bear if they were read in isolation (eg, bane and
antidote cases).
(ix) In order to determine the natural and ordinary meaning of the
statement of which the claimant complains, it is necessary to take
into account the context in which it appeared and the mode of
publication.
(x) No evidence, beyond publication complained of, is admissible
in determining the natural and ordinary meaning.
(xi) The hypothetical reader is taken to be representative of those
who would read the publication in question. The court can take
judicial notice of facts which are common knowledge, but should
beware of reliance on impressionistic assessments of the
characteristics of a publication’s readership.
(xii) Judges should have regard to the impression the article has
made upon them themselves in considering what impact it would
have made on the hypothetical reasonable reader.
(xiii) In determining the single meaning, the court is free to choose
the correct meaning; it is not bound by the meanings advanced by
the parties (save that it cannot find a meaning that is more
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injurious than the claimant’s pleaded meaning).”
Internet blogs and social media
[23] As noted above, context is extremely important, and that has particular relevance in
relation to words used on social media. It has been said that “the advent of the 21st century
has brought with it a new class of reader: the social media user”: Stocker v Stocker (at [41]).
The court should keep in mind the way in which such postings and tweets are made and
read. It would be wrong to engage in elaborate analysis of a statement made on social
media, or to parse it for its theoretically or logically deducible meaning: rather, the search for
the single meaning should reflect the fact that social media is a casual medium that is in the
nature of conversation rather than carefully chosen expression and is pre-eminently a
medium in which the reader reads and then moves on: Stocker v Stocker (at [41]-[43]).
Lord Kerr also referred with approval (at [44]) to the comments of Nicklin J in Monir v Wood
posts and Twitter messages fairly quickly and they do not pause and reflect or ponder on
what meaning the statement might possibly bear; their reaction to the publication is
impressionistic and fleeting; the essential message that is being conveyed is likely to be
absorbed quickly by the reader. In this case, the ordinary hypothetical reader must be taken
to be a reasonable representative of the readers of the blogs, or in the case of the tweets, of
the users of Twitter who follow the defender, and for the Facebook post, of those who read
[24] There has also been some discussion in the English case law of the test for whether
two publications are to be treated as one for the purposes of defamation: Dee v Telegraph
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tweets published on different occasions might form part of the context in which a particular
post or tweet is read and understood by the ordinary reasonable reader, I have had regard to
WLR 68:
“[39] I would include as context parts of a wider Twitter conversation in which the
offending tweet appeared, and which the representative hypothetical ordinary
reader is likely to have read. This would clearly include an earlier tweet or reply
which was available to view on the same page as the offending material. It could
include earlier material, if sufficiently closely connected. But it is not necessarily the
case that it would include tweets from days beforehand. The nature of the medium is
such that these disappear from view quite swiftly, for regular users. It may also be
necessary, in some cases, to take account of the fact that the way Twitter works
means that a given tweet can appear in differing contexts to different groups, or even
to different individuals.”
[25] On the question of whether material accessible by means of a hyperlink should be
which he explained:
“[12] It is perhaps unrealistic to proceed on the basis that every reader will follow
all the hyperlinks, but everything depends upon its context. For example, if in a
single tweet there is a single statement that says, ‘X is a liar’ and then a hyperlink is
given, it is almost an irresistible inference to conclude that the ordinary reasonable
reader would have to follow the hyperlink in order to make sense of what was being
said. At the other end of the spectrum, a very long article could contain a very large
number of hyperlinks. Only the most tenacious or diligent reader could be expected
to follow every single one of those hyperlinks. Such a reader could hardly be
described as the ordinary reasonable reader. How many links any individual reader
would follow would depend on an individual’s interest in or knowledge of the
subject matter or perhaps other particular reasons for investigating each of the
hyperlinks in question.
[13] It therefore does not seem to me to be possible to put forward a hard and fast
rule that hyperlinks imbedded in an article that is complained of should be treated as
having been read by the ordinary reasonable reader…
[16] I suppose, ultimately, if it is a matter of dispute, the court is going to have to
take a view as to what hypothetical reasonable reader is likely to do when presented
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by an online publication and the extent to which s/he would follow hyperlinks
presented to him/her…”
In Poulter, Nicklin J then said:
“[24] … Whether readers follow links provided like this is influenced by a number
of factors, including: (1) their familiarity with the story or subject matter and whether
they consider they already know that they are offered by way of further reading; (2)
their level of interest in the particular article and whether that drives them to wish to
learn more; (3) particular directions given to read other material in the article; (4) if
the reader considers that he or she cannot understand what is being said without
clicking through to the hyperlink. It might be reasonable to attribute items (3) and (4)
to the hypothetical ordinary, reasonable reader, but (1) and (2) will vary reader by
reader.”
[26] In light of the points made in the case law, where the pursuer submits that more than
one publication is to be taken into account to found the defamatory imputation, I conclude
that the test to be applied is whether, having regard to all of the circumstances, it is to be
inferred that hypothetical ordinary reasonable reader of the material complained of will also
have read, or have in mind, the other material which is relied upon as context. For that to be
possible, there must be a sufficient nexus, connection or association between the
publications, which could include a reference or hyperlink or the publications being part of
for example, a Twitter conversation, or a series or sequence of material.
[27] While it may be possible to classify different levels of defamatory meaning, there is
in law no settled categorisation. In Koutsogiannis, Nicklin J (at [13]) made these observations:
“… in Chase -v- News Group Newspapers Ltd [2003] EMLR 11 at [45] Brooke LJ
identified three types of defamatory allegation: broadly, (1) the claimant is guilty of
the act; (2) reasonable grounds to suspect that the claimant is guilty of the act; and (3)
grounds to investigate whether the claimant has committed the act. In the lexicon of
defamation, these have come to be known as the Chase levels. Reflecting the almost
infinite capacity for subtle differences in meaning, they are not a straitjacket forcing
the court to select one of these prescribed levels of meaning, but they are a helpful
shorthand.”
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Fair comment
[28] A similar approach to that adopted for identifying the meaning of the allegedly
defamatory statements is to be followed in assessing whether the meaning conveyed by the
words complained of is an assertion of fact, or whether it is a comment or expression of
opinion. As Nicklin J explained in Koutsogiannis (at [16]-[17]):
“…when determining whether the words complained of contain allegations of fact
or opinion, the Court will be guided by the following points:
(i) The statement must be recognisable as comment, as distinct from an
imputation of fact.
(ii) Opinion is something which is or can reasonably be inferred to be a
deduction, inference, conclusion, criticism, remark, observation, etc.
(iii) The ultimate question is how the word would strike the ordinary
reasonable reader. The subject matter and context of the words may be an
important indicator of whether they are fact or opinion…”
[29] The same sort of approach is adopted in Scots law: see Curran v Scottish Daily Record
and Sunday Mail Ltd (per Lady Wise at [37]). The words must be recognisable as comment
rather than an assertion of fact. If it is comment then “The expression of an opinion as to a
state of facts truly set forth is not actionable, even when that opinion is couched in
vituperative or contumelious language”: Massie v McCaig at [30]. The defence of fair
comment is thus made out under Scots law if the meaning complained of is (a) recognisable
as a comment, (b) upon facts which are truly stated, (c) relating to a matter of public interest:
Massie, supra. The rigours of requirement (b) have been relaxed by section 6 of the
Defamation Act 1952:
“…a defence of fair comment shall not fail by reason only that the truth of every
allegation of fact is not proved if the expression of opinion is fair comment having
regard to such of the facts alleged or referred to in the words complained of as are
proved”.
Under Scots law, “malice is not part of the equation”: if something is fair comment derived
from true fact, whether it is maliciously made has no relevance: Massie at [32].
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[30] It has also been held that public interest is not to be confined within narrow limits:
see Joseph v Spiller (at [3]), citing with approval Tse Wai Chun v Cheng. I bear in mind the
observations in Massie v McCaig as to the approach in Scotland. Malice in the sense of
ill-will or spite cannot rebut the defence of fair comment, but if the maker of the statement
has no belief in the opinion expressed that will mean that it is not a genuine opinion for the
purposes of the defence of fair comment.
Veritas
[31] For the defence of veritas (truth), what is required is that the defamatory meaning
conveyed by the defender, insofar as it amounts to an assertion of fact, is substantially true
(Gatley on Libel and Slander 12th ed., para 11.7).
Responsibility for comments made by others
[32] In the present case, the defender did not seek to contend that he had no
responsibility for comments on his website made by others, but relied upon the following
defence. In terms of the Electronic Commerce (EC Directive) Regulations 2002,
regulation 19, the defender is not liable for damages if he:
“does not have actual knowledge of unlawful activity or information and, where a
claim for damages is made, is not aware of facts or circumstances from which it
would have been apparent to the service provider that the activity or information
was unlawful”.
hosted on a website.
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The defamatory imputations
[33] The pursuer sets out in its pleadings the meanings it argues are to be taken from the
relevant publications. The pursuer adopts the standard language used in defamation
pleadings in Scotland that the words in the relevant publications “falsely and calumniously
represent, and are understood by members of the public to represent directly and by
innuendo” the alleged defamatory meaning. I therefore take into account that the pursuer
relies upon innuendo as well as direct representations. It is however clear that innuendo, in
the sense of the words themselves not being defamatory but becoming defamatory because
of special knowledge on the part of a reader, is not asserted, either in the pleadings or in
submissions. Separately, in the written and oral submissions for the pursuer, a different
structure was adopted from that in the pleadings and the specific defamatory meanings
averred were not each individually addressed. I have taken from the written and oral
submissions for the pursuer the points that relate to the specific defamatory meanings
alleged in the pleadings. In those written and oral submissions, individual statements from
the blogs, posts or tweets were on occasion identified and founded upon and I record these
below.
[34] As is obvious, where defamatory imputations are alleged to have been made in
material placed on the internet or on Twitter or Facebook, the position differs from that of,
say, an article in a newspaper. For example, a tweet is not itself a publication to the world at
large. It is also of relevance to note that the material published commonly remains on the
website and, at least for a period of time, on the Twitter account or on Facebook and that it
can be accessed, including very easily by a hyperlink if one is made. Where multiple
publications of this sort are relied upon (as is the case here) it becomes important for the
pursuer to make clear the particular publications founded upon and how and when other
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material should be taken to form part of the context in which the publication is to be
understood. Where, for example, it is to be alleged that an earlier tweet is to form part of the
context of a later tweet, or Facebook post, issues will arise as to how and when that can be
established or inferred. As noted above, hyperlinks and references will no doubt be relevant
factors, as will be the timing of the individual publications (for example, whether they are all
part of the same Twitter conversation). However, if it is to be suggested that the reader of a
tweet must have had in mind the content of a blog made say one month earlier, that
inference may not be easy to draw. Evidence about the number of followers on Twitter, the
number of friends on Facebook and of people who would or did read the blogs (but not of
course about the natural and ordinary meaning of the words), might assist in supporting
such an inference. Very little evidence of that kind was led in this case. It is correct that the
defender plainly has an interest in issues concerning land: his website in entitled “Land
Matters…” and the double meaning of “matters” indicates its clear importance to him. The
tweets referred to in the present case relate to land matters and no doubt there will be other
tweets by the defender about other land issues. The evidence was that the defender has
some 8,000 followers on Twitter. Thus, it may well be the case that a number of people,
interested in such issues, read both the blogs and the tweets by the defender. However, in
order to allow an inference to be drawn that a reader of a tweet must have had in mind the
contents of, for example, a blog made some time earlier to which there is no hyperlink or
reference in the tweet, there requires to be a basis for that inference.
Material on the defender’s website
[35] As noted, the pursuer avers that read in isolation and also in conjunction with
comments generated by them, blog 1, the addendum, and blog 2 made eight defamatory
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imputations. Blog 2 contained a hyperlink to blog 1. I now deal with each of the pleaded
defamatory imputations (underlined below) in turn.
(a) The pursuer is acting in an immoral and illegal way by offering souvenir plots for sale.
[36] In support of this meaning, in its written submissions, the pursuer identifies one
particular “defamatory statement”. On 29 September 2015, a member of the public posted a
query on the defender’s blog asking why the pursuer’s business methods are “not illegal
under the trades description/consumer law?” In response, on the same day, the defender
commented “It may well be illegal – I do recall some deliberations to this effect in the past”.
The pursuer contended that any reasonable reader seeing that statement from the defender
would be led to believe that the pursuer was acting illegally and involved in criminal
activities. The comment was therefore defamatory. The pursuer submitted that the
allegation was untrue and was not backed up by any evidence or facts. Selling souvenir
plots was a well-established business practice adopted by many companies since at least
1971. Also, in blog 2, the defender had said that selling souvenir plots may well be “a bit of
fun” and it was not therefore feasible that the defender honestly believed that selling
souvenir plots may well be illegal.
[37] The defender argued that there was no assertion of the pursuer acting in an immoral
and illegal way. The closest the pursuer could come to anything of that nature was a
reference to WHCIC (not the pursuer) having adopted HTL’s dubious methods of selling
souvenir plots of land and claiming that the purchaser is the owner. There was no assertion
of guilt of criminality or immorality. In any event this was a clear instance of comment and
it was covered by the defence of fair comment. The defender’s response to the query posted
on his blog, founded upon by the pursuer, was plainly an expression of opinion rather than
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stating a fact. The opinion was based on the view that it is false advertising to assert that
one is offering for sale a plot of land when title to the land will not pass on that sale and the
seller is not the owner of the plot. That is obviously something which might be viewed by a
commentator as relating to the law on trades description or consumer law. Accordingly the
defence of fair comment was established in relation to the particular statement relied upon.
In any event, if there was taken to be a factual assertion of illegality or immorality, that was
substantially true. It was neither moral nor legal to offer for sale something that one does
not own, or to offer land for sale without explaining the limitations of the effect of that sale,
or to represent falsely that the purchase will entitle the buyer to style himself or herself as a
Lord or Lady.
[38] Applying the relevant principles and viewing the words in the context of the
relevant publications as a whole, the pursuer is correct as to the meaning which the words
would have conveyed to the ordinary reasonable reader, subject to one qualification. The
qualification is the insertion of the word “possibly” before “illegal”, reflecting the point that
the response to the question that the pursuer quotes, which concerned “trades
description/consumer law”, was that the sale of souvenir plots “may well be illegal”. To
assert that the pursuer is doing something which may well be illegal amounts to a
defamatory imputation. That meaning does not directly assert criminality or immorality,
but it does suggest that there may be grounds to at least investigate such a possibility (Chase
level three). In addition, the clear theme of the blogs was that the sale of souvenir plots is a
practice known to be dubious and in that sense is immoral. I accordingly conclude that the
relevant publications had that defamatory meaning, which is sufficiently close to the
pursuer’s averred meaning.
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26
[39] Turning to the defences, the meaning (as well as the specific statement made and
complained of) is not an assertion of fact, that being plain from the language used in the
articulation of the meaning and in the statement itself. A view that something is immoral is,
at least in the present context, a matter of opinion. The factual basis for that meaning and
for the comment that the acts “may well be illegal” is the discussion in the blog about the
controversy over whether the sale of a souvenir plot results in the purchaser being, in law,
the owner of the plot. That is plainly a matter of public interest. I therefore accept the
defender’s submission that this is an expression of comment or opinion based upon facts
which are true and made on a matter of public interest. I do not consider that the comments
in blog 2 relied upon by the pursuer justify the pursuer’s position that the defender had no
honest belief that selling souvenir plots may well be illegal: whether or not it was also “a bit
of fun” does not contradict that opinion. It is clear that the defender reasonably believed
that publishing the statement complained of (and indeed all of the other statements) was in
the public interest.
[40] If for any reason the meaning stated is taken as an assertion of fact, it was in any
event substantially true. At the time of blog 1 the pursuer did not own the land and hence
could not purport to sell the plots. There was also evidence led that the “dispositions” given
to particular purchasers referred to land to which the pursuer did not have title. Further, it
is not correct that the purchase of a plot entitled the buyer to style himself or herself as a
Lord or Lady.
[41] In its written submissions the pursuer alleges that there is a further statement in
blog 1 which supports this alleged defamatory meaning:
“Wildcat Haven has adopted Highland Titles dubious methods of selling small
souvenir plots of land and claiming that the purchaser is the owner.”
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27
I conclude that the meaning of this statement alleged by the pursuer, again read in the
context of the relevant publications, is the natural and ordinary one that the pursuer acted in
the same dubious manner as a company (HTL) in relation to the sale of souvenir plots and
claiming that the purchaser is the owner. That meaning does not directly assert criminality
or immorality, but once again it does suggest that there may be grounds to suspect or at
least investigate such a possibility (Chase levels two or three). This is therefore also a
defamatory meaning. I do not consider that the ordinary reasonable reader would have
drawn a distinction between the two Wildcat Haven entities; rather, that reader would
conclude that the pursuer was, at least in part, the subject of the allegation. In any event, in
blog 1 the defender had effectively defined “Wildcat Haven” as involving both the pursuer
and WHCIC.
[42] However, again the defence of fair comment is made out. The meaning complained
of can reasonably be taken to be an inference, conclusion, criticism, remark or observation.
Whether conduct is “dubious” is not a matter of fact but an expression of a view. Whether
the pursuer was claiming that the purchaser is the owner is also an inference or conclusion
drawn from the points made in the pursuer’s website: the blog refers to, and contains a
hyperlink to, “extensive faq” on that matter. The basis of the statement was the facts
narrated in the blogs (concerning the controversy about souvenir plots being ostensibly
sold) which are plainly true and the issue is again clearly a matter of public interest (as
indeed was admitted by the pursuer). Thus, the defence of fair comment applies also to this
defamatory imputation. Again, if the meaning does not fall within the definition of fair
comment, the requirements of the defence of veritas are met.
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(b) The pursuer is tricking members of the public and is not using the proceeds of sale of
souvenir plots to fund conservation of wildcats.
[43] In its submissions, the pursuer made no specific reference to this allegedly
defamatory meaning. The pursuer did, however, refer to there being a defamatory
statement that: "The land is 75 ha in extent and if all sold in 10 ft² plots would generate
£40.35 million sales revenue paid to a company in Alderney in the Channel Islands”. The
pursuer argued that a reasonable reader would therefore assume that the proceeds of the
purchase of a wildcat souvenir plot would be “funnelled” offshore.
[44] The context in which that particular statement is made in blog 1 is that the land from
which the souvenir plots were being sold was owned by HTL. The blog referred to HTL as
naming the area of land as “Bumblebee Haven” from which a person could purchase plots
ranging from 10ft² to 100ft² and call oneself Lord or Lady Glencoe. The blog contains a link
to the title and plan of the area of land. Thereafter the statement founded upon by the
pursuer is made. There is no suggestion in the blog that the pursuer was selling plots of
land of 10ft². The blog refers to the registered address of WHCIC and the pursuer as each
being in Cornwall. It is clear that the ordinary reasonable reader would take the comment
founded upon to be a reference to sales by HTL, that being the company which was selling
10 ft² plots and having its base in the so called “tax-haven” of Alderney in the Channel
Islands.
[45] In blog 2, a similar statement is made. However, the context differed. The second
blog refers to the requirement for an asset-lock that restricts the disposal of assets of the CIC.
It states that in the case of the pursuer HTCTS is “the designated body to become the
potential recipient of the assets”. It then sets out the questions posed by the defender to the
director of the pursuer. It goes on to narrate that following her claim that part of the land
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had been gifted “to us” the defender had “checked the title” and discovered that HTL
“remained the owner and had gifted no land to Wildcat Haven”. It adds that on 9 December
2015, HTL had made an application to the registers of Scotland to transfer part of the land to
the pursuer. It goes on to say that:
"It remains unclear what financial arrangements have been entered into and why
[DW] is a Director and why Highland Titles Charitable Trust for Scotland is the
designated beneficiary of the assets of Wildcat Haven Enterprises CIC”.
Thereafter, it repeats the point founded upon by the pursuer.
[46] I do not consider that these statements, read in the context of the relevant
publications founded upon, mean that the proceeds of sale of souvenir plots by the pursuer
were not being used to fund conservation of wildcats and hence that the pursuer was
tricking members of the public. Specific reference is made to Highland Titles making an
application to transfer part of the land to the pursuer, so the reader was made directly aware
that some of the land might be transferred. It is then said that financial arrangements
remained unclear, indicating that there is no direct assertion of what financial arrangements
existed. Incorrectly, blog 2 states that HTCTS is the designated beneficiary of the assets of
the pursuer. Read along with blog 1, the expression “designated beneficiary” means that the
assets are transferred in the event of winding up. As the defender accepted, as at the date of
blog 2, HTCTS was no longer the asset-lock body or designated beneficiary. However, read
along with blog 1, the statement is simply repeating the position as to what sums of money
would be generated to HTL in the event that the land owned by HTL (not WHCIC or the
pursuer) was sold. That is the meaning. I therefore reject the pursuer's contention that this
defamatory imputation is made, whether directly or by innuendo.
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(c) The pursuer is selling plots which have already been sold as part of a Bumblebee Haven.
[47] While not directly asserted, it appears that the pursuer seeks to rely for this purpose
on certain passages in the blogs. These passages were expressly referred to in the pursuer’s
submissions on allegation (f) which I discuss below. No other specific statement within the
relevant publications founded upon was identified by the pursuer in support of this alleged
defamatory imputation. Properly understood, applying the test of the ordinary reasonable
reader, no such allegation was being made by the defender. The point being made was that
HTL owned the land and was selling plots for the conservation of bumblebees. The
defender simply did not state or imply that any actual souvenir plot was being sold by the
pursuer when it had already been sold by HTL. Accordingly the meaning alleged by the
pursuer is simply not made out, whether directly or by innuendo. The true meaning is
simply that the pursuer was selling souvenir plots from the same area of land as Bumblebee
Haven.
(d) The pursuer is paying and will continue to pay large sums of money comprising the
revenue from the sale of souvenir plots to a company in Alderney in the Channel Islands
where the destination of those sums is beyond public scrutiny and where that money may
well be used for purposes unconnected with the conservation of wildcats.
[48] I have already set out the pursuer’s submissions on this point in the context of
discussing the second defamatory imputation. For the reasons there given, I reject the
pursuer's contentions as to the existence of this defamatory meaning, again whether directly
or by innuendo. I have also set out the true meaning. The relevant publications do not
support the alleged imputation that the pursuer is and will continue to make payments to a
company in Alderney. The reference to the asset-lock was made in the context of potential
winding-up of the pursuer.
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(e) (under reference to inter alia the opening passage of blog 2 linking into blog 1 and the
use of the HTL logo and that links to other blogs which are critical of HTL and to the
comments in the form of tweets generated by blogs 1 and 2 as hereinafter condescended
upon) the pursuer is controlled by HTL which is a disreputable company engaged in
diverting money offshore and in tax evasion.
[49] As is evident from the various publications founded upon, the pursuer here relies on
a fairly complex jigsaw or mosaic of different online material. I have discussed earlier (at
para [34] above) the difficulties with the approach of aggregating a number of individual
online publications. No proper basis was given from which an inference can be drawn that
these various publications would have been read together, either as a single publication or
as part of the context of each other. For that reason, I reject that these various publications
can be aggregated in order to found the meaning alleged. In its submissions, the pursuer
argued that in the blogs the defender stated that HTL and the pursuer are the same entity.
The pursuer also submitted that there are repeated assertions in blogs 1 and 2 that the
pursuer is controlled by HTL. The pursuer referred to blog 2 and the statement therein that
in early June 2015 Highland Titles bankers and corporate service providers had given notice
of terminating their services and that the pursuer was incorporated on 30 June 2015. The
pursuer argued that the reasonable reader would believe that due to losing their banking
provisions, Highland Titles would cease trading and had created a new entity which they
controlled, being the pursuer, and this would allow them to continue funnelling money
offshore. I conclude that the ordinary reasonable reader would take from the blogs that
there was a close link between HTL and the pursuer, including that HTL appeared to have
established a very close relationship with Wildcat Haven which operates via the pursuer,
that DW was a director of both, that HTL owned land in respect of which the pursuer was
apparently selling plots, that HTL had applied to transfer part of the land to the pursuer and
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that HTCTS is the asset-lock of the pursuer. However, this link between HTL and the
pursuer as explained in the blogs did not go as far as meaning, or allowing the inference to
be drawn, that HTL actually controlled the pursuer. While I accept that the structure of this
part of blog 1, and its reference to when the pursuer was incorporated, may carry some
implications, the reference to the bankers and service providers terminating their services
did not imply or infer that HTL would cease trading and, more importantly, did not allow
the inference that the pursuer had been created by HTL and was controlled by it. On that
basis, I reject the defamatory imputation founded upon by the pursuer. I also conclude that
the ordinary reasonable reader would not have taken the material to mean that the defender
was alleging that HTL was “a disreputable company engaged in directing money offshore
and in tax evasion”. There were plainly statements that HTL engaged in dubious or
controversial business methods, in particular in the selling of souvenir plots when the buyer
does not acquire legal title to the plot, and that the proceeds go to an offshore base, which is
a “tax haven”, but that does not go the distance of alleging that HTL is disreputable or
engaged in tax evasion. I conclude that the reader would not take from the relevant
publications, whether directly or by innuendo, that HTL had the characteristics alleged. To
the extent that the pursuer suggests that it was untrue that HTL’s bankers and service
providers had withdrawn their services, the evidence was to the contrary.
(f) The pursuer is paying money raised from the sale of souvenir plots to HTL.
[50] In its written submissions, the pursuer founded upon the statement in blog 1 to the
effect that the land that the “supporters are being invited to acquire is not only already
owned by a company in Alderney and being sold plot by plot for bumblebees, this ‘first
wildcat haven’ is 60 miles to the north of Ardnamurchan and Morvern and well outside the
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area being promoted for wildlife conservation”. The pursuer argued that the defender was
stating that land not owned by the pursuer, from which the plots were being sold, was also
not located where the Wildcat Haven project operates or planned to operate, the clear
suggestion being that this was a scam and that the money raised would be going to an
offshore tax haven. I reject that alleged meaning. The natural and ordinary meaning of the
words is plain and, at the risk of repetition, is simply that the land was at the time of the
blog owned by a company in Alderney, was being sold plot by plot for bumblebees and was
located well outside the area that the pursuer currently stated it was promoting for wildlife
conservation. Those facts are substantially true. At the time of blog 1 the land was owned
by HTL. The disposition in favour of the pursuer occurred on 24 November 2015. HTL was
at the time of blog 1 selling plots to support bumblebees. The area of land was outwith that
which the pursuer was publicising as being used for the wildcat project.
[51] The pursuer makes similar contentions in the second and fourth defamatory
allegations referred to above. For the reasons given there, I do not accept that the defender’s
statements would be taken to mean, directly or by innuendo, that the pursuer was paying
the money raised from the sale of its souvenir plots to HTL. The real meaning is that the
pursuer was seeking to raise money from the sale of souvenir plots and had adopted a
similar approach to that taken by HTL, with whom it had certain links. It is true that in
response to the comments from the director of the pursuer the defender asked the question
whether HTL received any payment or commission from the pursuer. I accept that in some
circumstances a question can, in context, itself convey a defamatory meaning, for example
viewed by the ordinary reasonable reader as being aimed at gathering evidence for an
allegation already plainly made. However, when read in the context of the whole of the
relevant publications, this was truly just a genuine question in the terms stated. The
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34
ordinary reasonable reader would not have considered this to be an actual allegation in the
guise of a question. Accordingly, I conclude that this alleged defamatory meaning is not
supported by the terms of the relevant publications.
(g) DW (who is a director of the pursuer) is also a director of HTL and a trustee of HTCTS
and that, accordingly, the pursuer has close ties with HTL which are alleged to be involved
in dubious and illegal sales of souvenir plots and who are said to have opaque financial
affairs.
[52] This particular allegation was not specifically addressed in the written or oral
submissions of the pursuer. There was, however, reference in those submissions to the
pursuer being controlled by HTL, and HTCTS being the asset-lock, and related matters. The
allegation begins with a specific factual point (concerning DW) which is said to give rise to
close ties with HTL. It is not legitimate to identify only one statement from the blogs which
relates to close ties, when there are others that are true; that divorces the specific point from
the rest of the context. Also, no actual allegation of illegality is identified by the pursuer,
although I accept that the defender had of course said in a comment following blog 1 that
the acts “may well be illegal” and I accept that this comment can be taken to be part of the
relevant publications. The meaning which the ordinary reasonable reader would take from
the relevant publications is that the pursuer has close ties with HTL which is alleged to be
involved in dubious and possibly illegal sales of souvenir plots and said to have opaque
financial affairs. This is a defamatory meaning and I regard it as being sufficiently close to
the meaning averred by the pursuer as to form part of the pursuer’s case. The question then
arises as to whether this meaning is a comment or an assertion of fact. While there are
plainly factual elements in the imputation, viewed by the ordinary reasonable reader it is
comment, as the key point is the inference or conclusion of there being close ties. Taking the
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35
words “may well be illegal” to form part of the material from which the meaning is drawn,
along with the references to “dubious” and to “opaque financial affairs”, these expressions
also point to this being a comment. As to the mention of “close ties”, while this could be
regarded as a factual statement (capable of verification) rather than a comment, viewed in
the context of the meaning I have accepted, it is a comment, an inference or conclusion from
other factual material. In any event, that part of the meaning is plainly true. The close ties
included that at least for a period of time DW was a director of the pursuer and HTL and
that HTCTS was, at least for a period of time, the asset-lock of the pursuer and in due course
there was the gift of land from HTL to the pursuer. The evidence indicated that DW was a
director of HTL until 21 August 2015, but then resumed his directorship from 21 October
2015 until 17 February 2016. He was a trustee of HTCTS until 6 July 2015. Accordingly, he
was a not a director of HTL at the time when blog 1 was published, nor was he a trustee of
HTCTS when either blog was published. However, he was a director of HTL and of the
pursuer when blog 2 was published. There is therefore some factual inaccuracy in the
material published by the defender, but there was ample other evidence of close ties existing
at the time of each blog, including HTCTS being the asset-lock at the time of the first blog
and HTL at the time of blog 1 owning the land from which souvenir plots were being sold
on behalf of the pursuer. That evidence suffices, but I note that there was also other
evidence given about ties between the entities, including that Mr O’Donoghue accepted that
there had been an ongoing relationship with HTL, with it giving funds and supplying gift
packs in relation to the souvenir plots. Thus, while there are certain factual inaccuracies, the
comment is based upon facts which are true. Those facts include the links between the
entities, the controversy as to the sale souvenir plots and the secrecy of the accounting affairs
of HTL/HTCTS. The comment was also made on matters of public interest. For those
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reasons, the defamatory imputation is covered by the defence of fair comment. If that
conclusion is incorrect, then the defence of veritas would apply to the meaning which I have
identified. I therefore sustain the defender’s defence of fair comment, which failing veritas,
in respect of this allegation.
(h) In the event of the pursuer being wound up its assets will pass to HTCTS
[53] This meaning derives from what is plainly stated in parts of the relevant publications
and when read in context it is clearly what the reasonable reader would understand from
the material. However, the meaning is not one which is defamatory. It deals solely with the
situation of winding-up. The matter mentioned forms part of the “close ties” which existed,
albeit that by the date of blog 2 it was no longer true that HTCTS was the asset-lock. The
statement, when repeated in blog 2, was incorrect but not defamatory, whether directly or
by innuendo. There is no suggestion of the pursuer ever being at risk of being wound up, or
of the pursuer collecting money and not using it for wildcat conservation, but intending to
get wound-up and pass it on to HTCTS.
The pursuer’s allegation of the central sting
[54] In relation to the blogs and the material on the defender’s website, the pursuer
averred that:
“The material inaccuracies at the centre of the defender’s defamatory statements are
that the proceeds of sale of souvenir plots sold by the pursuer are not being used to
fund wildlife conservation but are being paid to HTL and are being diverted into
offshore tax havens away from public scrutiny”.
I have already rejected the suggestion that the relevant publications have that meaning. I
therefore conclude that the pursuer’s articulation of the central sting is simply not correct.
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The true sting is that the pursuer was closely associated with HTL and HTCTS, and these
were entities which carried out dubious selling of souvenir plots and were based in a tax
haven. However, this meaning did not include that the pursuer was not using the proceeds
of souvenir plots to fund conservation of wildcats, or that the pursuer was paying large
sums of money to HTL/HTCTS, or that the pursuer was paying money raised from selling
souvenir plots to HTL. The key problem for the pursuer is the lack of reference in the
relevant publications to any such payments. The potential slight confusion regarding the
sale of plots within the 75 ha site, and the total sums generated by sales which would come
to include the gifted land, is not sufficiently clear to establish payments by the pursuer to
HTL/HTCTS. Contrary to my understanding of the submissions for the defender, the
pursuer does indeed allege what I have described as the true sting, or at least something
sufficiently close to it, as a defamatory meaning: see imputation (g) above. However, for the
reasons given on that point, this meaning is not defamatory and even if it is the defences of
fair comment or, failing which, veritas apply.
Tweet dated 29 September 2015
[55] The tweet founded upon by the pursuer and made by the defender on 29 September
2015 (the day after blog 1) contained a link to that blog and was in the following terms:
“Free advice for charities. Have nothing 2 do with souvenir plots, lords and
ladyships and funnelling £ thro tax havens”.
As noted, the evidence was that the defender had some 8,000 followers on Twitter. In my
view, the hypothetical ordinary reasonable reader is likely to have required to click through
to the hyperlink, and read the blog, in order to understand what is being said in the tweet.
The pursuer also argued that on 29 September 2015 another person tweeted “Become a laird
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– help save the #wildcat”, with a link to a newspaper article promoting the pursuer’s
conservation activities. In response, the defender tweeted: “…er no. Please don’t”.
The defender also added, alongside this tweet, a link to blog 1. I am again prepared to
accept, given the timing of the tweet and the hyperlink, that the hypothetical reasonable
reader would have read both tweets and blog 1. The second tweet and the blog therefore
form part of the context. The pursuer also referred in its submissions to another tweet by
the defender, on 28 September 2015, where he used the words “Highland Titles Latest
wheeze”, with a hyperlink to blog 1. This was not the subject of averment and I cannot take
it into account as part of the context. However, even if I did it would make no difference to
my conclusions.
[56] The pursuer contended that the first tweet on 29 September referred to above was
defamatory in its own right in respect that it falsely stated that the proceeds of sale of
souvenir plots was being funnelled through tax havens. The defender argued that this could
not be read on its own as defamatory of the pursuer, which is not named. Further, read
alongside blog 1, various defences applied. The defender also contended that it required a
strained or sinister meaning for someone reading that “ephemeral tweet” and then reading
the entirety of blog 1 to then recall the tweet and decide that the entity “funnelling £” was
the pursuer.
[57] For the reasons I have given above, I do not consider that the reasonable reader
would take from blog 1 that the pursuer was giving or paying the proceeds of the sale of
souvenir plots to HTL or HTCTS. There is no suggestion that the pursuer was “funnelling”
money through tax havens. The material which could reasonably be read as involving
“funnelling” money through tax havens identified only HTL and HTCTS. Blog 1 also states
that:
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“Wildcat Haven is a project designed to protect the Scottish wildcat by preventing
hybridisation with feral cats and providing a network of reserves to manage as
wildcat habitat”.
This is clearly not suggestive of any immoral or illegal conduct but rather is a fair
description of the project’s objectives. In blog 2, reference is made to the latest efforts of
HTL to garner greater respectability by becoming involved with “a conservation project
called Wildcat Haven CIC”. Blog 1also mentions that the pursuer is registered in Cornwall,
and hence not in a tax haven. Blog 2 refers to the pursuer’s registered office being in North
Wales. The whole content of the blogs and the tweet, and the absence of any reasonable
basis for inferring from the relevant publications that the pursuer, rather than HTL/HTCTS
was “funnelling £” through tax havens, result in the defamatory meaning averred by the
pursuer as not being one which the ordinary reasonable reader would take from that
material, whether directly or by innuendo. The meaning is simply that charities should have
nothing to do with selling souvenir plots, lords and ladyships and funnelling money
through tax havens.
Facebook post on 25 February 2016
[58] The Facebook post by the defender dated 25 February 2016 stated “LATEST BLOG
on Highland Titles/Wildcat Haven and being dumped by their bankers and corporate
service providers”. It contained a link to blog 2, which is titled “Highland Titles Day”. The
pursuer submitted that this was put forward as a clear statement of fact and that the
ordinary reasonable reader would be aware that bankers would typically only withdraw
their services if they had suspicions of financial impropriety. The defender submitted that
the Facebook post could not be read on its own. It was in essence a headline, with blog 2
being the article. When read along with the post, the blog made clear that it was Highland
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Titles that were dumped by their bankers and corporate service providers. In any event, the
reference was to Wildcat Haven and not to the pursuer.
[59] The Facebook post by the defender showed the graphic of blog 2 and referred to his
“latest blog”, and as I understand it, contained a link to that blog. The hypothetical ordinary
reasonable reader would understand the post to be, in effect, a headline point, making a
promotion or advertisement of the blog, or an invitation to peruse it. In order to understand
the words in the post I am satisfied that the reader would have accessed and read blog 2.
The relevant publications for present purposes are therefore the post and the blog.
Alternatively, the blog would at least form part of the context in which the post was read.
Taking into account the contents of the blog, I reject the defender’s submission that the
reference to Wildcat Haven would not be taken by the reader to be a reference to the
pursuer. In blog 2 the defender identified Wildcat Haven as involving WHCIC and made
several references to the pursuer, which was the fundraising arm. The reasonable reader, if
he had read the blog and the Facebook post, would not interpret this as a reference only to
the company WHCIC. However, the blog states that “Highland Title’s bankers and
corporate service providers in Guernsey gave notice of the termination of their services”.
The Facebook post should be read in the way described in Stocker and similar cases. The
language used is not designed to be viewed with absolute precision, especially when it is
really simply inviting perusal of the blog. The words in the post are capable of being read as
referring to the blog as concerning “Highland Titles/Wildcat Haven” with the remainder of
the post being rather unclear, until read along with the blog. The blog itself makes specific
reference only to Highland Titles losing its bankers and corporate service providers. In my
view, that is the meaning of the post when read in the context of the blog. While the
Facebook post may introduce some ambiguity, the ordinary reasonable reader would not
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take it, when read in context, to mean that the pursuer was in the same position. I
accordingly do not accept the defamatory imputation alleged by the pursuer.
Comments by others posted on the defender’s website
[60] It was accepted that the comments posted by others on the defender’s website were,
as a matter of law, to be taken as published by him. I do not intend to set out the content of
these other comments in any detail, but they included “many might have been tempted to
contribute to this ***** scheme, purely out of desire to help a threatened species and help
Scotland’s wildlife. It is truly sickening that a loathsome enterprise is operating in this way”.
Other comments said “It’s totally appalling”, a “scam” and “It’s a pity they can’t be gaoled”.
Another comment was in these terms:
“I completely agree with you that it is sickening to think of people using other
people’s love for a beautiful endangered animal to spiv some money. It also angers
me that our laws are so weak for crimes against life. In this particular case I just urge
you to keep reading, keep watching how the story evolves. I’m counting on all of us
to make sure in this case that the truth will out.”
[61] The pursuer argued that these comments, taken in their own right and read in
conjunction with blog 1, the addendum and the update, and blog 2 represented that (i) the
pursuer is acting in an immoral and illegal way by offering souvenir plots for sale; and (ii)
the pursuer is tricking members of the public and is not using the proceeds of sale of
souvenir plots to fund conservation of wildcats. The defender contended that there was no
suggestion that the defender himself was responsible for the actual content or making of any
of these comments, and that in unchallenged evidence he had explained that these
comments represented the honest views of certain people who had read his blogs and that it
was not for him to censor such views. The defence under regulation 19 of the Electronic
Commerce (EC Directive) Regulations 2002 was therefore made out: the defender did not
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have “actual knowledge of unlawful activity or information”. The pursuer did not seek to
contend that regulation 19 did not apply in the present circumstances and in light of the
decision in Kaschke v Gray it appears to apply to a website host who is merely storing
comments.
[62] In my view, the first comment must be taken as referring to the pursuer, given its
reference to a “threatened species” and “Scotland’s wildlife”. Perhaps arguably, it could be
taken as referring to HTL, particularly in respect of bumblebees, but there was nothing in
the evidence to suggest that bumblebees were themselves a species that was threatened. The
rest of the comment could readily be taken as a reference to the sale of souvenir plots. The
comment has a defamatory meaning, that the pursuer is involved in a sickening and
loathsome enterprise. Viewing this as a comment on the defender’s website, not his own but
one for which he accepted he has legal responsibility, the elements of the defence of fair
comment are met. There was an ample basis on true facts for the making of such a comment,
on a matter of public interest, and there is no reason to conclude that the person who made
the comment, or for that matter the defender, did not hold the view expressed. It is far from
clear that the other comments (apart from the final one) were referring to the pursuer. Given
the repeated reference to HTL and HTCTS in the blogs I am unable to conclude that the
other comments were indeed directed at the pursuer.
[63] More importantly however, I conclude that on the evidence the requirements for the
defence under regulation 19 of the 2002 Regulations are satisfied. No basis was suggested
for the defender having actual knowledge of unlawful activity or information or of being
aware of facts or circumstances from which it would have been apparent to him, as the
service provider, that the activity or information was unlawful. I accept the defender’s
position that he had no actual knowledge to that effect.
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Tweets by the defender between 16 November 2012 and 3 May 2017
[64] The pursuer alleges in it pleadings that a number of tweets by the defender between
16 November 2012 and 3 May 2017 (Appendix, section 8) are defamatory of the pursuer in
the manner and to the extent of points (e) and (f) above. Some of the tweets complained of
were posted relatively close to each other in time, on 25 and 29 September 2015. I conclude
that the hypothetical reasonable reader reading the second of these tweets would have in
mind the content of the first or at least would, in seeking to understand the second tweet,
have scrolled to recent tweets including the first. The same applies to the two tweets on 24
and 25 February 2016. No basis was presented and no evidence was led which would
support the view that tweets published on various other dates, including 16 November 2012,
21 February 2015, 6 April 2016 and 3 May 2017 could, individually or collectively, be taken
along with any of the other tweets to form part of the context of those tweets. Most of these
tweets are not therefore set out in the Appendix.
[65] The submissions made by the pursuer identified two specific tweets by the defender,
said to support the contention that the defamatory allegations were made. The first was
“Fact that Wildcat Haven has blocked my IP address suggests whole operation is being run
by Highland Titles”, tweeted on 29 September 2015. The second was in response to the
following tweet on 10 March 2016 from someone from BBC Scotland: “this Wildcat Haven
project on the @bbcscotland news site, is the one run by the Highland Titles mob?” The
response by the defender was "...@bbcscotland news it is the one where the fundraising arm
is run by Highland Titles – yes". The defender submitted that the complaints made had not
been explored in evidence and in any event that the comments made were not defamatory of
the pursuer, were directed more towards HTL and indeed were plainly true.
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[66] The tweets which are founded upon were referred to in the evidence. The first of the
tweets quoted above was posted shortly after another tweet which referred to the “Latest
scam from Highland Titles”. The tweet founded upon is expressed as suggesting that the
whole operation, including the pursuer’s operation, is being run by HTL. The meaning of
these tweets is that the pursuer may be being run by a company engaged in a scam, which is
a defamatory imputation relatively close to that averred in item (e) above. This is, however,
plainly a comment or expression of opinion: it is a deduction or inference that the defender
has drawn from the fact stated (that he was blocked from the website). It was an
understandable inference on the part of the defender and it was based on the true fact of him
being blocked from the website. It was also dealing with a matter of public interest. I
therefore conclude that this is covered by the defence of fair comment.
[67] In the second of the tweets quoted above, posted on 10 March 2016, in answering
whether the Wildcat Haven project is the one run by “the Highland Titles mob”, the
defender repeats the question and answers “yes”, in respect of the fundraising arm (that is,
the pursuer). The project referred to in the tweet would have been taken by the ordinary
reasonable reader to include the operations conducted by the pursuer. The reader would
undoubtedly simply take the natural and ordinary meaning of these words and understand
them to mean that “Highland Titles” ran and hence controlled the Wildcat Haven project.
The question is whether this tweet, read in that context, has the defamatory imputation
(identified as (e) above) claimed by the pursuer. In my view, it does not. There is nothing in
this tweet from which it can be taken that HTL is a disreputable company engaged in
diverting money offshore and in tax evasion. If there had been some evidence for
concluding that this tweet was read in the context of the blogs or other tweets posted in
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September and October 2015 to which I have referred above, there may have been potential
for that imputation to have been made out, but there was no such evidence.
[68] For the reasons given above in relation to imputation (f), that imputation is also not
made out in the tweets complained of by the pursuer.
Conclusion on the defamatory imputations
[69] The result of this reasoning is that a number of the defamatory imputations founded
upon by the pursuer are not the meanings which the ordinary reasonable reader would have
taken from the relevant material and so those claims cannot succeed. Some of the
defamatory imputations alleged by the pursuer are made out as meeting that test, but in
relation to those imputations defences raised by the defender are established and so these
claims must also fail. It is apparent that there are a number of meanings which the pursuer
relies upon which are not true meanings and indeed are overstatements by the pursuer of
what was actually stated. These include the pursuer’s allegations that the defender referred
to it as the same entity as HTL and that the pursuer itself was “a tax dodging scam designed
to con the public out of money and then funnelling money donated to wildcats to the
Channel Islands, to line the pockets of corporate fat cats and the aristocratic gentry”.
Untrue factual statements made by the defender
[70] In the various publications founded upon, the defender made four untrue
statements. Firstly, in blog 1, that DW was at that time a director of HTL and a trustee of
HTCTS, the latter point also being incorrectly stated in blog 2. Secondly, in blog 2, that
HTCTS was at that time the asset-lock of the pursuer. Thirdly, in a tweet, that HTL ran or
controlled the pursuer. Fourthly, in a Facebook post (read in isolation), that Wildcat Haven
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had been dumped by its bankers and service providers. Apart from the first point, which
was mistakenly confirmed by an authority in Guernsey, there was no proper basis for the
defender to reach these conclusions. The true position in relation to the second point was
available to the defender when he searched the records of the pursuer at Companies House,
but he failed to notice the amended articles of association of the pursuer which changed the
asset-lock from HTCTS to another entity. The third and fourth points appear to be
somewhat careless observations. However, the fact that the defender has made certain
statements which are untrue does not itself mean that the defamatory allegations
complained of by the pursuer were made. I have taken the untrue statements into account
and already explained why they do not have that result. For the defence of fair comment to
be available, it is not necessary that every fact founded upon is true. Moreover, to the extent
it may apply as noted above, the defence of veritas is founded upon statements being
substantially true. The fact that there are these untrue statements made within the material
complained of does not alter my views as to defamatory meanings and the available
defences. The statements in the blogs are, however, relevant to the issue of Reynolds
privilege, which I discuss below.
Malice
[71] The pursuer’s fourth plea-in-law is that the defender’s publications having been
actuated by malice, the fourth plea-in-law for the defender (dealing with veritas) should be
repelled. That contention is not relevant: if the statements of fact were substantially true,
malice cannot affect that defence. Malice is not averred by the pursuer to apply in any other
context. For that reason alone, the pursuer’s position on malice cannot succeed. However, it
is appropriate that I express my views on the points raised in the pursuer’s submissions.
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The pursuer submitted that the defender was driven by malice and that there was a
dominant intent to injure. Malice was said to be demonstrated by alleging that the pursuer
operated in a tax haven when he knew that to be untrue. The pursuer also claimed that the
defender was fully aware that HTCTS were no longer the asset-lock for the pursuer well
before the publication of blog 2. Further, the pursuer contended that the defender knew
very well that selling souvenir plots was legal. There was, the pursuer claimed, a relentless,
unprovoked defamatory campaign against it, using multiple platforms. The publications
were said to be reckless. In relation to the main defamatory sting, the pursuer submitted that
the defender admitted that he never thought that the pursuer operated through a tax haven.
The pursuer also argued that the defender never believed the truth of comments made in
blog 2 about the gift of land by HTL to the pursuer. The defender argued that the issue of
malice had no real part to play in these proceedings. In any event, malice (as defined in the
case law) was not made out.
[72] In relation to malice, the leading authority is Horrocks v Lowe, referred to by
Lord Eassie in Thomson v Ross (at [55]) as showing:
“that a pursuer in a defamation action may aver and prove malice either (i) by
averring and proving that at the time at which the statement was made its maker
knew that what he or she was saying was untrue (or had that wholly reckless
indifference to truth which the law in cases such as fraud equiparates with positive
knowledge of untruth) or (ii) by averring and proving that the statement was made
predominantly for some private spite or ulterior motive divorced from the proper
use of the privileged occasion. On the other hand the fact that the maker of the
statement is by reason of the matter with which he is concerned ill-disposed, or
unfriendly towards, or prejudiced against the person who is the subject of the
statement or to whom the statement relates does not amount to ‘malice’ in the legal
sense.”
As noted above, malice is not part of the equation for the purposes of the defence of fair
comment and it is also irrelevant to the defence of veritas. The only potential relevance for
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present purposes is in relation to Reynolds privilege and whether the defender’s writings
constituted responsible journalism: if actuated by malice, they would not do so.
[73] In my opinion, the pursuer’s submissions about malice (which were in any event not
the subject of specific averments) are without foundation. Mr Wightman was a credible and
reliable witness. He gave his evidence in an honest, straightforward and coherent manner. I
accept his evidence about what he knew and did not know at the time of the various
publications. The suggestion that he made statements that he knew were untrue simply has
no proper basis. He did not state that the pursuer operated in a tax haven. In relation to
HTCTS as the asset-lock, he openly accepted that the information that the pursuer had
changed the asset-lock to a different entity was available at Companies House and that
when doing the electronic search he should have spotted it, but did not, as he thought the
relevant documents were things he had seen before. The pursuer’s further assertion that the
defender acted as an internet troll is manifestly unsupported. The pursuer’s allegations of
malice must fail.
Reynolds privilege
[74] In light of the conclusions I have reached about the meaning of the publications and
the defences thereto, the issue of Reynolds privilege does not arise for consideration. It was,
however, the subject of fairly detailed submissions and I shall briefly give my views as to
whether it would apply in the event that my conclusions above are incorrect. Reynolds
privilege, or public interest privilege, is recognised in Scotland: Adams v Guardian
Newspapers Ltd, following Reynolds v Times Newspapers Ltd. For present purposes, the two
most important authorities on this topic are the decision of the House of Lords in Jameel v
Wall Street Journal Europe Sprl and of the Supreme Court in Flood v Times Newspapers Ltd. The
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plea of privilege should be directed at the actual publication and not at the various
meanings or innuendoes which the pursuer claims to arise from the words of the
publication: Gatley on Libel and Slander (12th ed., at 27.26). The standard of responsible
journalism is to be applied “in a practical and flexible manner” and not “exclusively by
reference to the single meaning which the law attributed to the particular words” (Flood,
para [128]). As is made clear in Jameel, it is the publication as a whole that has to be assessed
when considering the public interest, not merely the particular defamatory allegations of
which the pursuer complains. If the article as a whole is in the public interest, the next
question is whether the inclusion of the defamatory statement was justifiable (Jameel,
para [51]). The question of whether the defamatory statement should have been included is
often a matter of how the story should have been presented (ibid). The inquiry then shifts to
whether the steps taken to gather and publish the information were responsible and fair
(Jameel, para [53]) and hence constituted responsible journalism. As Lord Hoffman observed
in Jameel, (para [54]):
“…the defence is of course available to anyone who publishes material of public
interest in any medium. The question in each case is whether the defendant behaved
fairly and responsibly in gathering and publishing the information. But I shall for
convenience continue to describe this as ‘responsible journalism’.”
A number of more detailed propositions are set out in Jameel. The reasoning in Flood is
consistent with that in Jameel, and adds some further guidance. There is no need to set out
these propositions here, but I have taken them into account. A well-recognised instance in
which Reynolds privilege may arise is that of consumer protection. In that area, even where
individual criticisms might be made of the publisher, an honest publication alerting the
public to concerns as to the validity of certain activities is likely to be privileged: see eg GKR
Karate (U.K.) Limited v Yorkshire Post Newspapers Limited and Others (No. 2) (at 429-430).
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[75] Applying these principles (and I stress that this issue only arises if my earlier
conclusions are incorrect), I conclude that the defence of Reynolds privilege would not have
been made out. Reynolds privilege cannot in my view apply to the tweets or Facebook post
made in this case, and I do not understand the defender to suggest otherwise. The principal
reason for reaching that view is the nature and content of the tweets and the post: they are
simple and short statements which do not constitute journalism of the kind referred to in the
case law. Turning to the blogs, including the update and the addendum, I accept that these
relate to a matter of public interest, that is, the sale of souvenir plots. I also give appropriate
weight to what might be called the editorial judgment of the defender and overall I accept
that he sought to act reasonably. I also take into account that if the thrust of the blogs is true,
and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have
the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.
Failure to seek comment in advance of publication is a factor, but will not in and of itself
automatically be fatal to the defence, and will only have that result if it makes the journalism
as a whole irresponsible.
[76] In applying the standard of responsible journalism in a practical and flexible manner,
I nonetheless conclude that the blogs do not meet that test. There was an important factual
inaccuracy contained in the blogs, as noted above. While it is correct that the defender did
research and sought verification on a number of the matters mentioned in the blogs, he
made a material omission in failing to take into account that the pursuer had altered the
identity of its asset-lock from HTCTS to another entity; this was stated in the altered articles
of association that he came across when searching the records, but did not peruse. This
resulted in the false statement to that effect in blog 2. The defender made the statement
despite the director of the purser having advised him, several months beforehand, that the
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company had already sent in paperwork replacing HTCTS with another organisation and
that the records would be updated shortly. If the pursuer’s allegations of defamation
founded upon that statement had succeeded, the defender’s failure to peruse the public
documents lodged by the pursuer would have been a key factor. More importantly, on the
information available to me, the pursuer is a small company engaged in a genuine scheme
aimed at the conservation of wildcats, run by well-intentioned and enthusiastic individuals.
This must have been apparent to the defender, at least as being a serious possibility. The
scheme was still seeking to get off the ground around the time of blog 1, as the defender was
fully aware. There was no urgency to publish either of the blogs; unlike a newspaper
seeking a scoop, there was no specific newsworthy matter that had just occurred and
required immediate publication. The defender had, at his leisure, put together the contents
of the blogs. In those circumstances, responsible journalism carried with it the need to seek
comments on behalf of the pursuer in advance of publication. I accept that the contents of
an email from a director of the pursuer were placed as an update of blog 1 the day after its
publication, but that does not affect the impact of the blog on the date of publication.
Moreover, the terms of the email were not established on the part of the defender to
represent what might have been said on behalf of the pursuer had it been given advance
notice. In these circumstances, if (and of course only if) the blogs and comments had indeed
defamed the pursuer in the manner alleged, publication without seeking comment from the
pursuer would have resulted in the test for responsible journalism not being met.
Accordingly, if, contrary to the decisions I have reached, the defamatory meanings alleged
by the pursuer were made out and no other defence was available, the defence of Reynolds
privilege would have failed.
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Loss
[77] As I have explained, the defamation claims made by the pursuer fail because the
meanings alleged are not made out, or available defences apply. The pursuer’s claim for
damages (in the sum of £750,000) must fail. It is however appropriate that I record my views
on the damages claim. A corporate body cannot claim solatium for hurt feelings, as it has no
feelings to hurt (Norrie, Defamation p 66). In Lewis v Daily Telegraph (at 262), quoted in Jameel
(at [155]) Lord Reid observed:
“A company cannot be injured in its feelings, it can only be injured in its pocket. Its
reputation can be injured by a libel but that injury must sound in money. The injury
need not necessarily be confined to loss of income. Its goodwill may be injured.”
In Jameel, by a majority, the Appellate Committee held that a trading company with a
reputation but no actual trade in the UK was entitled to recover general damages for libel
without pleading or proving special damage if the publication had a tendency to damage it
in its way of business. There is no Scottish authority applying Jameel, but in my view the
approach fits with that in Waverley Housing v BBC where Lord Cullen said (at 12-13):
“I am satisfied that as a matter of general principle it is open to the second pursuers
to claim general damages, as opposed to specific damages based on the loss of
particular contracts or the diminution of turnover. However, it has to be recognised
that the fundamental basis of any award of damages to a company pursuer is
patrimonial loss”.
Thus, patrimonial loss remains as the key requirement, but it can be established by showing
damage to goodwill, or a tendency to damage the company in its way of business, rather
than only loss of income.
[78] Two heads of loss are pled here: losses resulting from a proposed deal to purchase
Arkaig forest; and lost sales of souvenir plots. In relation to Arkaig forest, the purchase was
to be made by the pursuer in partnership with ACF and funded by a grant of £500,000 from
HTL. After blog 1, ACF withdrew from the proposed partnership. Mr O’Donoghue
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53
explained that ACF had been actively seeking the pursuer as a partner and doing everything
it could to facilitate the purchase of forest land by the pursuer, before blog 1. The forest was
worth £495,000 and had an annual rental value of about £13,000. Various lost opportunities
were said to have resulted, including the generation of further revenue from the forest. In
relation to lost sales, the pursuer averred that in the fifteen days preceding the publication of
blog 1, sales revenue of £4,761.32 (£317.42 per day) had been generated. In his evidence,
Mr O’Donoghue stated that the impact of the defamatory imputations was still being felt
and the relationship between the pursuer and the press, media and local schools had
changed completely. Relations with the replacement asset-lock entity and the press had also
been damaged. The pursuer’s fund raising had “got off to a fantastic start, raising
thousands of pounds in around a couple of weeks” which then, after the blogs “dwindled to
nothing”.
[79] The defender submitted that in relation to the loss of the Arkaig deal, the evidence
did not support that having occurred as a result of the blog. As to loss of sales, there was no
satisfactory evidence of a downturn in sales, or that it was caused by the blogs or other
publications, or to what extent any such downturn had resulted in actual loss to the pursuer.
No accounts had been produced and no evidence had been led from a forensic accountant,
despite the pursuer having accepted at a previous hearing that this would be necessary.
[80] I conclude that the pursuer has failed to prove any loss. In relation to the Arkaig
forest matter, the evidence of Mr Servant refuted in its entirety the factual basis presented by
the pursuer for this alleged loss. In short, his position was that while the blog gave a
negative impression, the true reason for ACF withdrawing from the deal was delay and
failures on the part of the pursuer to progress matters and ACF’s desire to engage with the
Woodland Trust as the appropriate partner. Turning to losses said to arise from loss of
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sales, there was simply no proper basis in the evidence from which any such loss could be
established. The evidence about any actual decline in sales was at best unclear (partly
because in December 2015, after blog 1, the pursuer apparently enjoyed its highest ever
sales) and in any event there was simply nothing to show the net effect in monetary terms,
having regard to costs and expenses, of the decline in sales. I have had regard to the fact
that after the defender’s publications there was some evidence of reactions which were
adverse to the pursuer, expressed on the defender’s website and on social media. If one or
more of the significant defamatory imputations had been established, with no defence, there
may arguably have been some ground for awarding general damages within appropriately
modest bounds. However, if only less significant defamatory imputations had been
established, I would have found it impossible, on the evidence led, to conclude that any
damage to trading reputation was thereby caused; it could equally have resulted from the
statements by the defender which are legitimate because of the defences of fair comment or
veritas.
Other matters
[81] Certain documents lodged as productions and founded upon by the pursuer were
said to have emanated from HTL. However, in cross-examination of Mr O’Donoghue,
reference was made to the electronic “properties” records of these documents. Some of these
records showed either a different date or a different author (namely a person associated with
the pursuer) from the date or author (a person from HTL) stated in the paper versions. The
defender relied on this point as indicative that these documents could not be accepted as
what they bore to be. There is certainly force in this submission, but the difficulty is that the
court did not hear evidence in any detail as to how, when and by whom these documents
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might have been created, saved or revised and on that basis it is not possible to infer
anything negative about the pursuer’s position in respect of these documents. The defender
also argued that the absence of anyone from HTL to speak to the matters complained of by
the pursuer was worthy of comment, and allowed the court to draw inferences favourable to
the defender: Gateway Assets Ltd v CV Panels Ltd (at [59]). However, I do not accept that
there are any such specific inferences capable of being drawn from that fact in the present
case. I have based my findings on the evidence.
Conclusion
[82] For these reasons, the pursuer’s claim fails. Accordingly, I shall repel the pursuer’s
pleas-in-law, and sustain the second, third, fourth and fifth pleas-in-law for the defender in
the manner and to the extent explained above, and grant decree of absolvitor.
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APPENDIX
1. Blog 1 (29 September 2015)
“Wildcat Haven, Bumblebee Haven or Tax Haven?” …
“If you plan to set up a fundraising campaign for an environmental project, it is a
good idea to think carefully about who is involved and what techniques you plan to
use.
Wildcat Haven is a project designed to protect the Scottish Wildcat by preventing
hybridisation with feral cats and providing a network of reserves to manage as
wildcat habitat.
Yesterday, it launched its campaign. Sponsorship has been provided by Volkswagen,
a company responsible for polluting the environment with nitrous oxide emissions
that it attempted to conceal through one of the biggest corporate frauds of recent
decades. The other sponsor is our old friend Highland Titles, a company based in
Alderney that is wholly owned by a charitable trust (Highland Titles Charitable
Trust of Scotland) registered in Guernsey. See my blog of February for further
information on their operations.
Some time ago, Highland Titles Ltd. blocked my IP address but it came as something
of a surprise to discover that I have also been blocked from Wildcat Haven’s website
despite only having just seen it. Despite this, I have access via a proxy IP in
Germany.
Highland Titles appear to have established a very close relationship with Wildcat
Haven which operates via Wildcat Haven CIC (Community Interest Company) and
Wildcat Haven Enterprises CIC. The Registered Address of both is in Cornwall. One
of the defining features of a Community Interest Company is the asset lock –
provision that in the event of winding up, the assets must transfer to a nominated
body that is a company interest company, charity or Scottish charity; or a body
established outside Great Britain that is equivalent to any of those persons.
In the case of Wildcat Haven CIC, the nominated body is a community-based
company, Sunart Community Company. The money, however, is being raised by
Wildcat Haven Enterprises CIC and the nominated body here is Highland Titles
Charitable Trust for Scotland. Thus, in the event of Wildcat Haven Enterprises CIC
being wound up, its assets will be taken over by Highland Titles Charitable Trust for
Scotland in Guernsey.
Wildcat Haven Enterprises CIC was incorporated on 30 June 2015 with two
Directors, [EO and DW]. [DW] is a Director of Highland Titles Ltd and a Trustee of
Highland Titles Charitable Trust for Scotland.
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Wildcat haven has adopted Highland Title’s dubious methods of selling small
souvenir plots of land and claiming that the purchaser is the owner (see extensive faq
to this effect). This claim was comprehensively debunked in February this year by
legal blogger loveandgarbage. If there remains any doubt, here is the content of a
letter written by [a university law professor]… to the Daily Record newspaper.
Dear Mr [F],
Under Scots law, ownership of land passes from seller to buyer by registration in the Land
Register of Scotland. No registration? Then no transfer. This is currently set out at section 50
of the Land Registration etc (Scotland) Act 2012. (The previous law was essentially the
same.)
(“Souvenir plot” is a term defined in section 22 of the 2012 Act.)
Therefore, if a souvenir plot is sold, registration is required, if the buyer is to acquire
ownership of the plot.
But the Land Register does not accept souvenir plots: this rule is set out at section 22 of the
2012 Act. (The previous law was essentially the same.)
So if a company sells a souvenir plot, the sale cannot be completed. The buyer of the plot does
not become owner of the plot. Ownership of such plots remains with the company.
Whether buyers of souvenir plots are informed that the seller will retain ownership is
something I have no information on.
Sincerely, …
[The professor] should know… See also, a recent academic paper by [JR] and [MC]
which reviews the law in this area.
The plots being offered for sale by Wildcat Haven cost from £30 to £250 for one
square foot of land which purchasers are assured, gives them a “personal right to a
souvenir plot of land in Wildernesse Wood and the opportunity to change their
name to Lord or Lady Wildernesse. Wildernesse Wood is described as “part of the
first Wildcat Haven”. “We are asking you to help us by actually buying part of the land we
plan to conserve.”, the website claims.
So where is Wildernesse Wood? The Wildcat Haven website does not say, but from
this promotional video, it is clear that it is a plot of land above Loch Loyne on the
A87 between Invergarry and Glen Cluanie.
In the video, Dr Paul O’Donoghue is filmed standing in the wood. He claims that
“Every square foot of land we buy has a direct positive impact on the Scottish wildcat. By
supporting this project, you’re helping save the Scottish wildcat step by step.”
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There are two problems with this claim.
First of all, this land is, in fact owned by Highland Titles Ltd. who are already selling
souvenir plots in a “nature reserve” they have named Bumblebee Haven where you
can purchase plots ranging from 10 square feet (£49.99) to 1000 square feet (£499.99)
and call yourself Lord or Lady Glencoe (even though the land is 50 miles north of
Glencoe).
The land was acquired in February 2014 and the title can be seen here and the plan
here. The land is 75ha in extent which, if all sold in 10 square foot plots would
generate £40.35 million in sales revenue paid to a company in Alderney in the
Channel Islands.
But the more fundamental problem is that the Wildcat Haven project is in
Ardnamurchan and Morven – see map below.
The land that supporters are being invited to acquire in not only already owned by a
company in Alderney and being sold plot by plot for bumblebees, this “first wildcat
haven” is 60 miles to the north of Ardnamurchan and Morven and well outside the
area being promoted for wildcat conservation.
I offer this information in the spirit of consumer advice to anyone considering taking
up the offer to become the owner of a square foot of land to create a Wildcat Haven.
AN ADDENDUM
As an addendum to the Highland Titles blog in February, I contacted the Chief
Minister of Guernsey [JT] to ask whether it would be possible to examine copies of
Annual Returns and Accounts of both Highland Titles Ltd., registered in Alderney
and Highland Titles Charitable Trust for Scotland, registered in Guernsey. As I
argued then,
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“Revenue is paid into a company registered in Alderney but as no accounts are published, it
is impossible to be sure. The sole share is held by [W and M] as Trustees for the Guernsey
charity. Under the law of Guernsey, no charity is obliged to provide accounts for public
inspection and it need only file accounts under certain circumstances.
Thus nobody knows if in fact the charity is in receipt of any funds whatsoever. As the sole
shareholder it is not entitled to have any of the revenues of Highland Titles Ltd. transferred to
it. These revenues may well be paid out by the Alderney company as management fees or any
manner of other payments to third parties.”
[JT] informed me that under Guernsey law, the charity is not required to submit any
financial returns and access to the Alderney company records would only be
available to law enforcement agencies if there was evidence of criminal conduct.
Thus, because this land is owned in an offshore tax haven, we are unable to obtain
any information about what happens to the money generated by selling off their
souvenir plots.
(1) There is some disagreement over the appropriate strategy to be adopted to
save the Scottish wildcat. An official project, Scottish Wildcat Action is being run by
20 organisations with the support of the Scottish Government and Forestry
Commission among others. Those behind the Wildcat Haven project, however, have
criticised the official programme.
(2) The Community Interest Company Regulations 2005”
2. Update to Blog 1
“UPDATE 1500hrs 30 Sept 2015
The following response was emailed to me by [EO] and posted on the Wildcat Haven
website here. The response is also contained in a comment below this post together
with my follow up questions.
Dear Andy,
Just hoped to respond briefly to your primary concerns about the Wildcat Haven project.
Highland Titles Charitable Trust is currently listed as our nominated body, it is acting as a
placeholder whilst we agree a few local organisations in the West Highlands who would be
best placed to become the ongoing nominated body. Of course, you’ll have to wait and see on
this one, but we have already sent in paperwork replacing HT with another organisation, I’m
sure records will be updated shortly.
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Our website repeatedly states that the plots being sold are souvenir plots and “a bit of fun”,
our own FAQ outlines that registration of souvenir plots is legally impossible so this seems
little revelation.
In terms of location, the current Haven fieldwork area is in West Lochaber (Ardnamurchan,
Morvern and Sunart). We have been highly successful in neutering feral cats in this area (we
have neutered 50 in the last 7 months alone, leaving close to 500 square miles free of intact
feral or pet cats) and are now ready to expand. You are right to highlight that the land in Loch
Loyne is north of the current Haven area, however that is the very point, we are expanding
northwards and the long term goal has always been to cover the entire Highlands west of the
Great Glen. Loch Loyne is ideally situated being to the east of the Knoydart peninsula and
near to a major land bridge to the rest of the Highlands, which needs to be protected from feral
cat migration. Wildcat monitoring activities are already underway in the area, we are also
looking to start operations in Sutherland which you will note is also well north of the current
Haven zone, as well as looking to buy land within the current fieldwork area.
Part of the Loch Loyne site has been gifted to us by Highland Titles and no plots in the area
provided to us has been previously sold, so it was free for them to pass on, allowing us to offer
actual physical plots to customers immediately, rather than just a promise of buying land in
future.
Wildcat Haven has been around protecting wildcats since 2008, our team comes with
considerable scientific and conversation credibility, we are currently the only effort to protect
wildcats in the wild rather than place them in captivity and our work has been commended
and supported by organisations such as Humane Society International for its exceptional
standards of animal welfare and delivery of humane feral cat control, as well as receiving
considerable coverage across national media recording our work with feral cats, wildcats, local
schools and communities for many years.
We’d also like to take this opportunity to thank you for providing us with reduced rate access
to the Who Owns Scotland database around 2008/2009 when the project was starting up and
needed to start communicating with landowners: you helped us get where we are today,
thanks a lot for your support and promotion of the Wildcat Haven projects.
[EO]
Director,
Wildcat Haven
I replied as follows.
[E],
Thanks for your response.
1. It may be a bit of fun but you are asking folk to help you by “actually buying parts of
the land we plan to conserve” You need to be much clearer that people who spend £100 do not
become owners of the land.
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2. You say that part of the Loch Loyne site has been gifted to you. Can you tell me when
this transaction took place and when it was submitted to the Registers of Scotland for
recording? Can you advise the extent and location of this land?
3. Are there any wildcats on the Loch Loyne land?
4. Why is my IP address blocked from viewing your website?
5. What is the role of Highland Titles in your fundraising? Do they receive any
payment? Do they receive any commission on each plot sold?
Thank you.”
3. Blog 2 (24 February 2016)
“Highland Titles day”
“I intended to have published this blog on Highland Titles Day (10 February – see [MC’s]
blog) Apologies to those who were expecting it then.
Last September, I blogged about the latest effort by Highland Titles Ltd. to raise lots
of money from people who think they get to own some land in Scotland and help
conservation at the same time (see a recent advert in BBC Wildlife magazine – 1.6Mb
pdf – for a flavour of their business model).
Highland Titles Ltd. is a company registered in Alderney. It is owned by Highland
Titles Charitable Trust which is registered in Guernsey. See my blog of 12 Feb 2015
for further background. The company makes its money from purporting to sell small
plots of land as “souvenir plots”. The controversy over the affairs of this company
has been generated because no-one who buying such plots can in law become the
owner of the land and because the financial affairs of the company remain opaque,
being registered in a secrecy jurisdiction.
In its latest effort to garner greater respectability, Highland Titles has become
involved with a conservation project called Wildcat Haven CIC. The fundraising arm
of this organisation is a Community Interest Company called Wildcat Haven
Enterprises CIC with its registered office at Sage & Co Chartered Accountants in
Denbighshire, North Wales. There are two Directors of the company, [EO] and [DW].
[DW] is resident in Alderney and is also a Director of Highland Titles Ltd and a
Trustee of Highland Titles Charitable Trust for Scotland.
One of the requirements of a Community Interest Company is the provision of an
asset lock that restricts the disposal of assets of the CIC. Assets can be transferred to
another CIC or charity and such a body must be designated in the Articles of the
CIC. In the case of the Wildcat Haven Enterprises CIC, the designated body to
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become the potential recipient of the assets is Highland Titles Charitable Trust for
Scotland.
In my response to my September blog, [EO] (who is a Director of both Wildcat
Haven CIC and Wildcat Haven Enterprises CIC) responded and I published the
response as an update to the blog. In turn, I then posed a number of questions to
[EO] as follows”…
[see update to blog 1]
“I never received a reply but can provide an update on some of the questions.
1. The Wildcat Haven website still contains the claim “We are asking you to
help us by actually buying part of the land we plan to conserve.”
2. Following [EO]’s claim that part of the land had been gifted “to us”, I
checked the title and discovered that Highland Titles Ltd. remained the
owner and had gifted no land to Wildcat Haven. Interestingly, on 9
December 2015, however, Highland Titles Ltd. made an application to the
Registers of Scotland to transfer part of Paitna Wood/BumbleBee
Haven/Wildcat Haven to Wildcat Haven Enterprises CIC.
3. No response.
4. No response.
5. No response.
It remains unclear what financial arrangements have been entered into and why
[DW] is a Director and why Highland Titles Charitable Trust for Scotland is the
designated beneficiary of the assets of Wildcat Haven Enterprises CIC.
As I pointed out in my September blog, if all of the 75 hectares of Paitna
Wood/BumbleBee Haven/Wildcat Haven/Wildernesse Wood were sold even as 10
square foot plots, this would generate £40.35 million in sales revenue paid to a
company in Alderney in the Channel Islands. In normal circumstances, a
conservation project would be established as a charity and a trading body or
fundraising enterprise would be established as a whole owned subsidiary of the
charity. There’s a lot of money at stake.
Most recently, Wildcat Haven has been seeking to become involved in the
community acquisition of a Forestry Commission forest by Loch Arkaig.
Finally, a very significant development took place in early June 2015.
Highland Title’s bankers and corporate service providers in Guernsey gave notice of
the termination of their services.
Wildcat Haven Enterprises CIC was incorporated in 30 June 2015.”
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4. Tweets by the defender on 30 September 2015
“…specifically, what extent (ha) of land has been gifted to you and when was this
registered in the Land Register?”
“…are there any wildcats resident in the Loch Loyne woodland?”
“…your website invites purchasers to help u “by actually buying part of the land we
plan to conserve” is this correct?”
“…do Highland Titles receive any payment or commission on souvenir plot sales?”
5. Tweets by the defender on 29 September 2015
[in response to this tweet by another person: “Become a Laird and save Scotland’s
wildcats”]
“or maybe don’t’”
“Free advice to charities. Have nothing 2 do with souvenir plots, lords and ladyships
and funnelling £ thro tax havens”
[in response to this tweet by another person: “Become a laird – and help save the
#wildcat”, referring to a newspaper article promoting the pursuer’s conservation
activities]
“…er no. Please don’t”.
6. Facebook post on 25 February 2016
“LATEST BLOG on Highland Titles/Wildcat Haven and being dumped by their
bankers and corporate service providers”
7. Comments by others on the defender’s website
“I am extremely grateful to you for this Andy, as I’m sure many might have been
tempted to contribute to this ***** scheme, purely out of desire to help threatened
species and help Scotland’s wildlife. It is truly sickening that such a loathsome
enterprise is operating in this way.”
“I completely agree with you it is sickening to think of people using other people’s
love for a beautiful endangered animal to spiv some money. It also angers me that
our laws are so weak for crimes against life. In this particular case I just urge you to
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keep reading, keep watching how the story evolves. I’m counting on all of us to
make sure in this case that the truth will out.
And when we know for sure who’s been lying be happy to join you in throwing
everything at them the law allows.”
“It’s totally appalling. Imagine sitting down and hatching this scam. And on such a
scale. It’s a pity they can’t be gaoled.”
“Sadly… it’s what goes on in that sickening loathsome enterprise, currently operated
as ‘modern’ Scotland.”
8. Further tweets by the defender
25 September 2015: “Latest scam from Highland Titles” along with a picture of
Highland Titles Nature Reserve.
29 September 2015: “Fact that Wildcat Haven has blocked my IP address suggests
whole operation is being run by Highland Titles.”
26 February 2016: [in response to this tweet by another person - “You have made
people think the Haven is a mere scam and said nothing to alter that perception”]
“Do u think it wise 2 be in bed with an offshoreCo whose bankers & service
providers have withdrawn their services?”
10 March 2016:
[in response to this tweet from someone from BBC Scotland -
“this Wildcat Haven project on the @bbcscotland news site, is the one run by the
Highland titles mob?”]
"...@bbcscotland news it is the one where the fundraising arm is run by