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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> BRITISH GAS TRADING LTD AND ANOTHER AGAINST DEREK MCPHERSON [2020] ScotCS CSOH_61 (13 May 2020)
URL: http://www.bailii.org/scot/cases/ScotCS/2020/2020_CSOH_61.html
Cite as: 2020 GWD 20-271, [2020] ScotCS CSOH_61, [2020] CSOH 61
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OUTER HOUSE, COURT OF SESSION
[2020] CSOH 61
A106/20
OPINION OF LADY POOLE
In the cause
BRITISH GAS TRADING LIMITED AND CENTRICA PLC
against
DEREK MCPHERSON
Pursuers
Defender
13 May 2020
Pursuers: Reid; Womble Bond Dickinson LLP
Defender: Party
Note:
[1] This is an action of defamation brought by the first and second pursuers, British Gas
Trading Ltd and Centrica Plc, against the defender, Mr Derek McPherson. The second
pursuer is a corporate parent of the first pursuer. The defender has started a blog at
www.britishgaslawlessness.blogspot.com headed “British Gas: a Lawless Private
Company?”. The first blog post on 2 May 2020 announced 12 weekly episodes to follow,
giving a summary of each episode. The first episode has now appeared. The case came
before me on 13 May 2020 on a motion for interim interdict. I heard argument from the
parties, and took some time carefully to consider their submissions, including a written
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2
submission from the defender. On 13 May 2020 I granted interim interdict in the terms set
out in the interlocutor, and gave the following reasons for doing so.
Governing law
[2] The defender relied on his right to freedom of expression and quoted Article 19 of
the International Covenant on Civil and Political Rights. This International Covenant has
not been incorporated into domestic law. However, Article 10 of the European Convention
on Human Rights is to similar effect and has been incorporated into Scots law by virtue of
the Human Rights Act 1998. Article 10(1) provides so far as relevant:
“Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontier.”
[3] It is important to notice that freedom of expression under Article 10 is a qualified
right. Article 10(2) goes on to say:
“The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of
national security, territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the reputation
or rights of others, for preventing the disclosure of information received in
confidence, or for maintaining the authority and impartiality of the judiciary”.
This means that free expression may be curtailed in circumstances set out in Article 10(2).
These include (as emphasised in bold print in the quotation above) protection of the
reputation of rights or others. In Scotland, the law of defamation is one of the ways
prescribed by law in which the reputation and rights of others are protected.
[4] Section 12 of the Human Rights Act 1998 makes further provision for situations, such
as applications for interim interdict in defamation actions, in which the court is considering
whether to grant any relief that might affect freedom of expression. Section 12(3) provides:
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“No such relief is to be granted so as to restrain publication before trial unless the
court is satisfied that the applicant is likely to establish that a publication should not
be allowed”.
defamation case, the normal test of the pursuer having to show a prima facie case is modified.
A higher standard is required because of the terms of Section 12(3). The court must be
satisfied that the applicant is likely to succeed in the conclusion for a permanent interdict.
The pursuer must also satisfy the court that the balance of convenience favours grant of
interdict. Any order granted must leave the defender in no doubt as to the measure of his
liability, and must be no wider than necessary to protect the legitimate interests of the
pursuers. Given that this case concerns material claimed to be journalistic or literary, the
court also is required to have particular regard to the importance of the Convention right to
freedom of expression, and the extent to which the material has or is about to become
available to the public and whether it is in the public interest for the material to be published
(Section 12(4)).
Are the pursuers likely to succeed in their conclusion for permanent interdict?
[5] Both the initial blog post of 2 May 2020 and the first episode are lengthy, and so the
following quotations give only a flavour of the contents of the blog. The blog asserts British
Gas agents covered up “unlawful business practices”, and “provided blatantly false and
dishonest information in clear violation of anti-fraud legislation throughout the UK”. It
talks of money “stolen” by the British Gas, British Gas hiring an outside counsel with “a
propensity for dishonesty” or “corrupt outside counsel”, and “manifest dishonesty”. It goes
on to say it will provide proof that British Gas’ attempts to cover up its outside counsel’s
outrageous attempt to mislead the court reached to the very highest level of its organisation.
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It talks of “massive fraud” and British Gas ignoring its obligations under Schedule 5 of the
1995 Gas Act, “British gas’ unlawful business practices”, “this utterly corrupt solicitor’s
behaviour on behalf of, and sanctioned by British Gas”, and this being “an actual danger to
the Rule of Law”. In episode 1 the blog states that information given by the pursuers was
“entirely and knowingly, false and dishonest, and clearly, in violation of the 2006 Fraud
Act” and later “is dishonest and in flagrant violation of both the 2006 Fraud Act and
Common Law Fraud (Scotland)”. (I note that the relevant parts of the Fraud Act 2006 do not
extend to Scotland).
[6] In my opinion, this language, with which the existing blog is peppered, bears a
defamatory meaning when objectively read. I accept the submission of the pursuer that the
blog posts bear the innuendo set out in Article 14 of condescendence. The blog posts contain
clear innuendo that the first pursuer: has been committing fraud and theft, which are
criminal offences; is involved in a criminal conspiracy; and operates unlawful business
practices. Those are matters which would tend to lower the first pursuers in the estimation
of right thinking members of society generally. I also accept that the second pursuer has a
reasonable apprehension that it may also be similarly maligned in blog episodes to come.
Although, so far, the references in the blog are to British Gas, there is express reference to
attempts to mislead reaching the very highest level of the organisation (the second pursuer
being the first pursuer’s parent company), and reference to matters involving people
employed by the second pursuer. There is a long history between the parties which includes
the defender bringing various court actions, including a defamation action against the
second pursuer, which did not succeed. There is other correspondence before the court in
which the defender suggests he will bring the second pursuer before the court.
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[7] The defence raised is that the allegations made are factual. In essence, defences of
veritas and fair comment are raised. For the defence of veritas to succeed, the defender must
prove that the statements made are true. For the defence of fair comment to succeed, the
defender must show that each statement of fact is true, that the matter is one of public
paragraph 30).
[8] I am prepared to accept that the way that the pursuers treat their customers, in
particular in offering them particular tariffs, is a matter of public interest. But I do not
accept that the defender has shown that the statements set out above made by him are true.
Nor do I accept that what is written in the blog could amount to fair comment. There is no
evidence before me of convictions in any court for fraud, theft, conspiracy or any offence of
dishonesty on the part of the pursuers, in respect of the matters raised by the defender. This
is despite a court action in Stornoway sheriff court having been paused to allow the
defender to raise matters with Police Scotland, the Lord Advocate, and the First Minister.
No such proceedings have been brought. The correspondence the defender sought to rely
on as showing the pursuers had accepted they had stolen from him does not bear the
inference he sought to put on it. There is no court order or finding of any regulatory body
before me finding the pursuers have unlawful business practices. There is no professional
finding against the pursuers’ solicitor, and indeed there is a decision at 6/6 of process from
the Scottish Legal Complaints Commission rejecting a complaint about the pursuers’
solicitor by the defender as totally without merit. It is one thing to say, as the pursuers
accept: that one of their employees said that a particular tariff was not available in
Stornoway, and that the answer was not correct; or that their solicitor wrote to the court to
ask for a witness to be excused, describing her as a “junior customer services manager”
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within the second pursuer, although her formal job title was “Senior Customer Manager”;
or that the pursuers declined to respond to a request from the defender’s MP about that
witness’s position saying “As your letter raises issues which are currently connected to live
Court proceedings I am afraid that we are not in a position to respond”. It is quite another
to make serious allegations that the pursuers have committed theft or fraud, criminal
conspiracy, were blatantly or purposefully dishonest, or that they have unlawful business
practices, or that their solicitor is corrupt and a pathological liar, as the defender has done in
submissions and correspondence before the court. In my opinion this goes beyond what can
count as fair comment on the matters by which the defender is aggrieved.
[9] I therefore consider that the pursuers are likely to succeed in their conclusion for
permanent interdict.
The balance of convenience
[10] On the side of the balance against granting interim interdict are the considerations
set out in Section 12(4) of the Human Rights Act 1998. The initial post announcing
12 episodes, and the first episode, are already in the public domain. However, 11 more
episodes are intended. From their descriptions in the initial post, if published they would be
highly likely to contain further defamatory material which is not in the public domain.
While I accept there is some public interest in publication of details about the manner in
which the pursuers treat their customers, that public interest can be met by publishing
without the additional defamatory material the pursuer adds by way of comment, described
above. I have had particular regard to the importance of the Convention right to freedom of
expression, but I consider that if I grant interdict the pursuer is not prohibited from
publishing at all. He is entitled to publish matters which are true, and express fair comment
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on them. What he is not entitled to do is publish in the unrestrained way he has favoured so
far, and which defames the pursuers in the way set out in the interlocutor. I also note that
the Convention right of freedom of expression to which I am having regard is qualified and
allows respect for the rights and reputation of others.
[11] On the other side of the equation, I consider the case against the defender is strong.
Given what the defender stated in his initial blog post about further publishing, in my
opinion the pursuers reasonably apprehend there will be further publication on matters
affecting both companies. Serious allegations are made by the defender of criminal and
unlawful conduct. No court orders or findings of professional or regulatory bodies are
produced which properly substantiate allegations of this seriousness. I also consider that
the potential prejudice to the pursuers if no interim interdict is granted far outweighs the
prejudice to the defender if interim interdict is granted. Further publication containing the
type of defamatory material dealt with in the previous part of this opinion will cause
prejudice to the pursuers. It is likely to be damaging to the pursuers’ reputations and
business interests in Stornoway or elsewhere. Damages to compensate the pursuers for this
type of harm would be difficult to quantify and may not be an adequate remedy. The
prejudice to the defender in contrast is small. He complains of historic events. The blog is
not apparently being published for commercial reasons. If the defender is successful in this
action after proof, he will be able to publish then. The delay will cause him no adverse
financial consequences.
[12] Having balanced the various relevant considerations, I am of the opinion that the
balance of convenience is firmly in favour of grant of interim interdict.
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Scope of the interim interdict
[13] In considering the terms of the orders to make, I was mindful of the importance of
the right of freedom of expression. It would not be appropriate to prevent the defender
from saying anything at all about the events which have passed between him and the
pursuers, because of this right. There is nothing to prevent him publishing full copies of
correspondence previously sent to him by the pursuers. He is entitled to say things that are
true, and make fair comment (as legally defined) on them. The problem is that he is
currently going far further than that, and planning to continue doing so, given what he has
said in the existing blog posts. Accordingly, while I was satisfied interim interdict should be
granted so that the defender refrained from defaming the pursuers, I was concerned that the
order not be any wider than necessary to protect the pursuers’ legitimate interests. After
raising these matters with counsel for the pursuers, he moved to amend the second
conclusion at the bar, and modified his motion to seek interdict only in respect of an
amended paragraph (i), and paragraph (iii), of the second conclusion of the summons.
Those orders exclude court proceedings from the scope of the interdict, including current
proceedings in Stornoway sheriff court involving the parties, so that the defender remains
able to put his case in the way he chooses in those proceedings. In my opinion, the modified
motion struck the appropriate balance between protecting the pursuers’ interests and
allowing the defender freedom of expression within legal limits.
[14] I also had regard to the need to ensure that the defender was in no doubt as to the
measure of his liability. In a situation in which I considered the defender was entitled to
make some comment about the pursuers, but not defamatory comment, a balance had to be
struck in a way that was clear to the defender. In my opinion, the clear prohibition on him
publishing episodes 2-12 in the form presently proposed in his blog post of 2 May 2020,
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together with a specific list of what he was not allowed to do in any other publishing he
chose to do, made matters sufficiently clear.
[15] In submissions, the defender offered to forward what he intended to publish 4 hours
before publication to the pursuers. He could then remove matters appropriately objected to
by them. He also offered not to publish if the pursuers got in touch with certain people to
tell them what the correct position was. These are not matters in respect of which the court
has a role, but it is open to parties to consider them further.
[16] For these reasons I granted interim interdict in the terms set out in the interlocutor.