Scottish Sheriff Court Decisions

Sheriffdom of Grampian, Highland and Islands at Inverness

Case No: A179/09

JUDGMENT by SHERIFF MARGARET M. NEILSON in causa KAREN SINCLAIR or FRASER 29 Laggan Road, Inverness, IV2 4EH PURSUER against CATHERINE FRASER 3 Balgate Drive, Kiltarlity, Beauly, IV4 7HL DEFENDER

Act: Mr. Neil Ramsay, Solicitor,

Anderson, Shaw & Gilbert, Inverness

Alt: Mr. Colin Sandilands, Solicitor,

Stronachs, Inverness

Inverness, 17 June 2010

The Sheriff, having resumed consideration of the cause finds the following facts admitted or proved:-

1.                  The pursuer is employed at Leonard Cheshire House in Inverness by Leonard Cheshire Disability. She started work there in around April 2006 firstly as part-time volunteer co-ordinator, then from around March 2009 in her current role as acting care supervisor. When she was volunteer co-ordinator she used to carry out extra "hands-on" shifts on occasion where she was treated as a senior support worker.

2.                  The defender was employed at Leonard Cheshire House, Inverness, by Leonard Cheshire Disability from around November 2001 until July 2009 when she resigned. Initially she was employed as a support worker, then as a senior support worker from 2005 and a team leader from around March 2008.

3.                  For a period of approximately nine months to one year the pursuer and defender shared a small office without any apparent difficulties.

4.                  The pursuer had from a young age indicated a leaning towards working in the care industry and has done so throughout most, but not all, of her working life.

5.                  The pursuer left school around the age of 16 and started a 2 year social care YTS training programme which involved in the 1^st year a six week college course and three separate three month placements at the Carousel Kindergarten, Bellevue Nursing Home, and the Corbett Centre all in Inverness. In the 2^nd year the pursuer specialised in learning disabilities.

6.                  After she had completed her placement at Bellevue Nursing Home, the pursuer continued to work there part-time for around 18 months to two years, carrying out basic personal care tasks for the elderly residents. She generally worked two six hour shifts at weekends. She left her part-time job at Bellevue Nursing Home when around 18 years old. She then had a number of different jobs including some outwith the care industry, for example working in an office, in a hotel, for a newspaper, for a homeless centre and for the New start charity.

7.                  Bellevue Nursing Home operated from around 1976 to 2001 when it closed. It had around 30 to 40 members of staff, including around 20 carers. There were around 23 dependent elderly residents. The owner and matron of Bellevue Nursing Home was Mrs Kathleen Miller. She ran the home in an efficient manner.

8.                  The defender's late mother, Mrs Kath Fraser, was a resident at Bellevue Nursing Home for approximately 10 years prior to her death in October 2000. She had suffered a stroke at the age of 51. Prior to residing at Bellevue she had stayed at two other nursing homes, both of which her family found to be unsatisfactory for a number of reasons. The defender's family had no such concerns in relation to Bellevue and trusted Mrs Miller and her staff. Mrs Miller would regularly telephone the defender's late mother's family, in particular the defender's sister, Mrs Isobel Brand, to report on her condition and would also chat to them when they visited the home.

9.                  In around March 2009 the post of acting care supervisor with Leonard Cheshire Disability became vacant. Both the pursuer and the defender were highly regarded by management in their respective roles. Both were encouraged by Freda Murray, Leonard Cheshire Disability's service manager, to apply for the post. Both did so. There were no other applicants.

10.              Both the pursuer and the defender were interviewed for the post on Monday 16^th March 2009. The defender was on holiday at the time but had come in specifically for the interview. Following the interviews, the pursuer, who was at work, was offered and accepted the post.

11.              On being advised by Freda Murray that her application for the post of acting care supervisor had not been successful, the defender became extremely angry and upset and started to look for other employment.

12.              On Thursday 19^th March 2009, the defender contacted Freda Murray, her employers' service manager and requested a meeting outwith the workplace. Freda Murray received the telephone call from the defender on her way back from Aberdeen. She was going to be busy the following week and therefore agreed to an immediate meeting. The defender and Freda Murray met at the North Inn, Inchmore on the evening of Thursday 19^th March 2009 ('the Bogroy meeting').

13.              At the said meeting the defender indicated that she had been looking for a new job and intended to resign from Leonard Cheshire Disability. She said that she had been able to tolerate working with the pursuer until now but would no longer be able to do so as the pursuer would be her direct line manager. She said that this was because in around 1993 she had received a telephone call from her sister, Mrs Isobel Brand, who in turn had received a telephone call from Mrs Miller of Bellevue nursing home advising that the pursuer had lifted her hand to the defender's late mother and had been dismissed from her employment as a result.

14.              At the meeting on 19^th March, Freda Murray suggested that she should speak with Billy Thomson, the general manager, about this but the defender asked her not to do so. Freda Murray also suggested that she should speak to the pursuer about the issue and the defender agreed to that course of action.

15.              On Monday 23^rd March 2009, Freda Murray met initially with the pursuer at Leonard Cheshire House and told her what the defender had said to her. The defender then joined the meeting. The defender restated to the pursuer at the meeting what she had told Freda Murray at Bogroy.

16.              Following the meeting on 23^rd March 2009, Leonard Cheshire Disability's personnel manager, Beth Paterson, came to Inverness to meet with both the pursuer and the defender on 22^nd April 2009 in an effort to resolve matters.

17.              A meeting took place on 22^nd April 2009 with the defender, Beth Paterson, Freda Murray and Natasha Gray (note taker) all present. The minutes of the initial and re-convened meeting are No. 5/1/3 of process.

18.              At the end of the meeting the defender became upset and hurriedly left the meeting saying as she left the room, in a raised voice, "Apparently the best person got the job............you ask her why she was sacked from Bellevue Nursing Home" or very similar words. These comments were heard by a number of employees, including Barbara Robertson, Linda Haydock and Beth Paterson, and were also said in the presence of Billy Thomson, Wendy Ross and Carolyn Tomlinson.

19.              The defender did not return to work at Leonard Cheshire Disability. She was signed off work due to stress from 22^nd April 2009 and resigned in July 2009, when she obtained other employment with Sense Scotland. She is currently in the role of Acting Locality Manager having had 2 promotions since starting her employment there.

20.              The pursuer continues to work at Leonard Cheshire Disability in the role of acting care supervisor.

Finds in fact and law

That the pursuer having suffered loss, injury and damage through being defamed by the defender is entitled to reparation therefor.

Therefore repels the pursuer's first and the defender's first, second, third, fourth and fifth pleas in law, sustains the pursuer's second and third and the defender's sixth pleas in law and grants decree against the defender for payment to the pursuer of the sum of FIVE THOUSAND POUNDS (£5,000.00) STERLING with interest thereon at the rate of 8% per annum from 23^rd April 2009 until payment in terms of the first crave of the initial writ and finds the defender liable to the pursuer in the expenses of the action in terms of the second crave as Taxed: Allows an Account thereof to be given in and Remits same when lodged to the Auditor of Court to Tax and to Report.

NOTE

Introduction

[1]       This is an action of defamation in which the pursuer seeks damages from the defender. A proof before answer was fixed and evidence was heard from 17 different witnesses. The evidence, together with the submissions, was heard over seven days on 8^th January, 9^th, 10^th and 11^th February, 7^th and 15^th April and 13^th May 2010.

[2]       As there were two live Rule 22 Notes lodged by the defender, a significant amount of evidence was heard under reservation, to be the subject of submissions. At the outset of the hearing on submissions the defender's solicitor confirmed that he did not intend to insist on his debate points and accordingly I repelled the defender's first two pleas-in-law.

[3]       On behalf of the pursuer, evidence was led from the pursuer herself together with Mrs Maureen Sinclair, Mr George Sinclair, Mr Alan Fraser, Ms Barbara Robertson, Ms Linda Haydock, Ms Freda Murray, Ms Yvonne Gilchrist, Ms Lesley Sharp, Mrs Kathleen Miller, Mrs Christine Calder, Ms Beth Paterson, Mrs Fiona Johnson and Ms Jane Day.

[4]       On behalf of the defender evidence was led from the defender herself together with her sister, Mrs Isobel Brand, and her niece, Ms Lindsay Fraser.

[5]       At the court's request, both solicitors prepared and lodged written submissions in advance. The court would wish to record its appreciation of the two solicitors' efforts in setting out their submissions in a clear and logical manner.

[6]       A significant amount of evidence was led which, unfortunately, for a number of reasons had to be heard over a four month period which added to the difficulties in what was already a relatively complex case. Because of the nature of the defence which was pled, (both the primary defence of veritas and the defender's esto case), it has been necessary to consider the actual evidence, and the quality of it, in some considerable detail.

[7]       Given the complexities of the case, and the different and lengthy submissions made in relation to different aspects of the case, I will not attempt to summarise either party's submissions as a whole but rather will refer to them at the relevant stage in the judgment.

Defamation

[8]       Both parties were in agreement that defamation is the communication of a false statement or idea which is defamatory of the pursuer. In order to establish her case the pursuer would have to show that the verbal utterances of the defender caused or were likely to cause damage to the pursuer's standing and reputation and that in some way they derogated from the way in which her character was perceived by others. It is clear that any utterances must be untrue and it was accepted by both parties that there is a presumption of the statements' untruth and it falls upon the defender to establish that what she said was true. Both parties accepted that if the defender establishes the truth of the statements, it matters not whether they are defamatory or disparaging. If she establishes the truth of what was said her defence of veritas is successful.

[9]       If she does not establish the truth then the defender must rely on her esto case which is the defence of qualified privilege. This involves the defender establishing that she is protected by a qualified privilege arising as a result of the occasions upon which the statements were uttered.

[10]   Again, both parties were in agreement that if the defender established that the occasions did amount to qualified privilege that this would not provide a defence if, nevertheless, it is shown by the pursuer that the statements were uttered in malice or with a motivation driven by animosity.

[11]   Dealing first with the alleged defamatory utterances or actionable statement(s) it is necessary obviously to identify what the potentially actionable statements are. This was not as straightforward as might appear at first sight. The pursuer had proceeded on the basis that the statement was that a number of years earlier (in around 1993) the pursuer had lifted her hand to the defender's mother while in the course of her employment in a nursing home and that she had been dismissed from that employment as a result. It was agreed by both parties that such a statement would lower the pursuer's standing in the estimation of right thinking people, and that it could be seen as an assault on character of anyone, never mind someone currently working in the care industry. The defender's position, however, was that while the "allegation" contained in article 3 of condescendence would be defamatory, it did not accurately reflect what the defender had said and, in any event, what the defender had said was true. The pursuer alleges that on the first occasion that an actionable statement was made, it was made by the defender to Freda Murray at the Bogroy meeting on 19^th March and she subsequently repeated it on 23^rd March to the pursuer and Freda Murray. The pursuer's position is that another actionable statement was made following the meeting on 22^nd April when the defender left the meeting in Leonard Cheshire House stating in a loud voice inter alia "Apparently the best person got the job ...........you ask her why she was sacked from Bellevue Nursing Home" or something very similar. The defender's position was that there was only one possible potentially actionable statement, namely that made at the Bogroy meeting.

[12]   I found the defender's submissions somewhat confusing in regards to the question of the actionable statement. Clearly if the pursuer was unable to establish that there were any actionable statements then her case would proceed no further. However, the first submission on behalf of the defender is that the statement was not an allegation (as averred). I do not accept this submission. It appears that the defender is, in some way, seeking to argue that because she has couched the statement in terms of referring to it as having been told to her in a telephone call from her sister following a telephone call that her sister received from Mrs Miller, that meant it was not an allegation. The defender has not pled in this case that she was motivated only by innocent dissemination of the defamatory statement and her solicitor, indeed, did not seek to argue that. The defender made reference more than once to the fact that she "chose her words carefully". She said that in her evidence and other witnesses gave evidence to the effect that she had said that to them at times. It would appear that she had some belief at the time of making the statements that if she said that she was just passing on what someone else had told her sister and what her sister had told her then it could not be actionable. This is clearly incorrect in law. Throughout her evidence she made it abundantly clear that she considered the terms of the statement to be true, had no doubt that it was the pursuer who was involved and had no doubt that "lifting her hand to" meant committing an assault. The defender is not able to hide behind the fact that she is putting forward the allegation that the pursuer assaulted her mother and was dismissed from her employment for that by saying she simply received a telephone call about another call. The law is clear. It is not a defence to say that you are simply passing on a message. As was said by Lord Devlin in Lewis v Daily Telegraph 1963 H.L. (E) at 283, "You cannot escape liability for defamation by simply putting the statement behind a prefix such as "I have been told that...." or "It is rumoured that...." and then asserting that it was true that you had been told or that it was in fact being rumoured." There is a clear inference from what the defender has said that she was alleging that the pursuer was sacked for assaulting her mother. As the pursuer's solicitor correctly submitted she was clear in her evidence that she was not saying that 17 years ago Mrs Miller looked into an incident or something similar and that she, (the defender) did not know whether the allegations were true or not, or indeed that they were untrue. She made the statements on the basis that they were true. She admitted in her evidence that she was sure that the pursuer had lifted her hand to her late mother. If someone chooses to pass something on then they are at peril of someone taking issue even if they are simply reporting it. Here it was clear that the defender gave currency to the allegations.

[13]   The defender has submitted secondly that what was said was not defamatory and that if some meaning should be ascribed to the words uttered then the pursuer is required to have averred that meaning (Gloag and Henderson at 30.06). "In some cases it may be necessary to explain technical, ironical or ambiguous language or to supply a stigma which may, but does not necessarily, lurk in the words used. This is done by setting forth on record and putting in issue an innuendo that is the precise defamatory meaning which the pursuer attaches to the words... If the innuendo consists of a special meaning dependent on knowledge of specific facts, publications to persons aware of those facts at that time must be proved."

[14]   I do not accept the submission that this is a case where innuendo is relevant. There is no technical or, indeed, ambiguous language. Every witness gave evidence to the effect that they understood the expression "lifted her hand to" as referring to an assault, as indeed did the defender herself. Indeed, some witnesses who were understandably unable to remember the exact words used said that they had been told that there had been an assault or that the pursuer had slapped a patient or "had put her hands" on her. I consider that the averments on record are sufficient to cover the pursuer in this regard.

[15]   The third submission on behalf of the defender was that in relation to the meeting on 22^nd April, no-one other than the pursuer and those in attendance at the meeting knew she was leaving or at that time knew of the telephone call received by the defender from her sister. It is clear from the passage from Gloag and Henderson referred to above, that for a statement to be actionable those hearing the statement must be proven to have known at the time they heard the statement of the surrounding facts which would have allowed what was said to be understood as defamatory. The defender's position appears to be that those hearing the statement made when the defender exited the meeting either already knew of it already or else did not know anything of the circumstances which would enable them to work out that the person being referred to was the pursuer. I consider that this submission is unsound. It is a matter for evidence which will be considered in more detail later. Given the defender's own admission in evidence that she uttered the statement when leaving the meeting which contained the words "Apparently the best person got the job......" and "........you ask her why she was dismissed from Bellevue" in the same sentence, it is inconceivable that anyone who heard the statement would not have known that it referred to the pursuer given that only two people, the pursuer and the defender, had applied for the job and the evidence suggested that it was a small organisation where everyone knew what was going on. At least two credible witnesses said they knew it must refer to the pursuer. One was told the full details later in the staff meeting and the other was told the full details later by the pursuer. At the very least they understood that it referred to the pursuer having been dismissed from a nursing home. On that basis, I am satisfied at this stage that there are at least two potentially actionable statements, both the statement made at Bogroy on 19^th March which was subsequently repeated and the statement made on 22^nd April as the defender left the meeting.

Veritas

[16]   The pursuer having established that there is a potentially actionable statement or statements, the burden of proof shifts to the defender to establish the defence of veritas. Again, the defender appears to rely on the fact that she claims not to have been saying that the pursuer had lifted her hand to the late Mrs Fraser in around 1993 but was seeking only to pass on information about a telephone conversation. It is necessary to consider the defender's evidence in some detail at this stage. If, as her solicitor submits, she was not alleging that the pursuer had in fact lifted her hand to her mother, why would she raise it at all? The defender's submission is that all the defender requires to prove to benefit from the defence of veritas is that the call was received by her from her sister in the terms averred in answer 3. The defender submits that she does not require to prove that the pursuer did in fact lift her hand to the defender's mother or that she was dismissed for so doing simply that she got a call telling her this. The defender's position in submissions is thereafter somewhat puzzling. If that is all she requires to do to succeed then presumably the only submission required is that which has been made and it is a matter which requires to be left to the court, namely to assess the credibility of the defender and her two witnesses, her sister and her niece, and to balance that with the evidence of the pursuer and her witnesses. There is no reason for the defender to go on and make further submissions in relation to whether any assault actually took place except presumably on a fall back basis. It was clear from the defender's evidence that she was absolutely sure that an assault had taken place and that the pursuer was responsible for it.

The Evidence

[17]   I found the defender's evidence to be unsatisfactory in a number of ways. It was contradictory in places. She was evasive at times, particularly in cross-examination, and she was extremely dogmatic. She was not prepared to accept even the slightest possibility that she might have been mistaken about the content of the telephone call or about the fact that she had concluded (as had her sister) that it was the pursuer who was involved, albeit that the call happened some 17 years ago. However, she wanted the court to accept that she could not remember in detail anything else that had happened around the same time but subsequent to the telephone call precisely because it was 17 years ago. She had no recollection of speaking to Mrs Miller in the home after she had been told of the assault. She said "I honestly can't remember a conversation from 17 years ago" yet she asked the court to consider it credible that she remembers her sister's call word for word. She had no recollection of when she eventually went to the home to see her mother. She knew she had not gone straight away. She did not remember speaking to her mother about it. However, she was absolutely clear about the words used in the call. It was notable that her sister, Isobel Brand, who also gave evidence, was in a very similar position. She apparently also remembered the words used, word for word, and very noticeably used exactly the same words as her sister, the defender, but she likewise appeared to have a very vague and hazy recollection of what happened subsequently which seems unusual given the circumstances. In addition, both spoke of their horror, shock and anger as to what had happened. They both explained that their mother had been subject to some unsatisfactory treatment in two other care homes where she had resided earlier in terms of general lack of care and hygiene. Both agreed that an assault was significantly worse than a general lack of care yet neither, despite being horrified at what they had been told, thought it appropriate to visit the home and speak to Mrs Miller immediately. Both ladies appeared, on the face of it, to be quite forceful characters in their different ways yet both decided just to sit back as Mrs Miller had "dealt with it". It was also notable that both of them said that they had not rushed in to see Mrs Miller or their mother as they had no need to do so because they were told their mother had "not been marked". This is an unusual turn of phrase. Both claimed to be speaking from their recollection of what happened in 1993 and not from discussions with each other in recent times, yet both used exactly the same expressions ("lifted her hand to" and "not marked"). I find the fact that they used such similar terms in evidence to be curious given the passage of 17 years, and in particular given the fact that they had such hazy recollections of other associated contemporaneous matters.

[18]   Isobel Brand gave evidence which was almost word for word in accordance with that of her sister, the defender. She could not remember what exactly was said but she was under no illusion who was involved (namely the pursuer). She had been surprised as the pursuer always seemed "bubbly". She felt that Mrs Miller had dealt with matters adequately. Like the defender she had no recollection of the conversation with Mrs Miller either when she went in subsequently to see her mother. It does appear surprising that she has such a good recollection of the telephone call and can apparently recite it word for word, yet she has no recollection of any conversation with Mrs Miller afterwards. Her evidence was full of expressions such as "I would have spoken with her" although she said that it would not necessarily have been the next time she visited. She admitted in evidence that she was close to her sister, that there had been no other assaults on her mother in previous care homes and that an assault was more serious than simple lack of care. When she was asked how she knew it was the pursuer who was being talked about, at first she said she could not remember what was said and could not remember whether a description was given or not. Then she said that she had been told that it was the Karen who was friendly, bubbly and gushy. Then she changed her evidence to say that it was just Karen but she knew it must be this Karen (the pursuer). She could not remember how or if she had described the person who had carried out the assault to the defender in the telephone call. It seemed to me that the defender and her sister had clearly discussed the case and their evidence. Mrs Brand was very keen to emphasise and volunteer that she had not used the word 'assault'. If she had not discussed the case in detail why would that be an issue? She seemed unnaturally keen to emphasise the words she had used and the words that she had apparently not used. She was asked why she had contacted Mrs Miller in the recent past. She said that she had been asked to do so by the defender who had told her that following her meeting with Freda Murray (the Bogroy meeting), Freda Murray had then approached the pursuer and that "the shit had hit the fan". It was then that she made contact with Mrs Miller.

[19]   The defender's niece, Lindsay Fraser, also gave evidence. I did not feel that she added much to the defender's case. Indeed, she may have detracted from it. She gave evidence that she had been there when her mother took the call from Mrs Miller. She was told by her mother what had been said. She described it as there having been an incident and Karen having lifted her hand to granny but that Mrs Miller had dealt so there was no need to rush down. She was horrified. She was 17 or 18 at the time and the call took place 17 years ago. She claimed, at first, to be quoting from her recollection of the actual event in 1993 and not from any recent discussions. Curiously she also used the same words as her aunt and her mother. She was evasive at times in her evidence and had to be pushed to answer the actual questions that were put to her. When asked why she knew it was the pursuer she said that she did not know what was said but that she knew it was her. She was asked when her mother had phoned the defender and said she imagined it was soon after the call from Mrs Miller. She accepted she was not present at the time. She said it was never discussed openly. She was asked if she had gone up to the care home and said she had not because Mrs Miller had said that "she was not marked". I found it curious that she also used exactly the same, somewhat unusual, expression and wanted us to accept that it was simply from her recollection from 1993. When pressed she eventually said that she did not remember the exact words used but that she was using "just words to that effect". I found it surprising if she was just coming out with "words to that effect", she had, by sheer chance presumably, come out with exactly the same words as the other witnesses. Her evidence in relation to how she knew that it was this Karen and that there were only two Karens in the care home was unsatisfactory. She "just knew". Why a 17 year old granddaughter who visited her grandmother on a reasonably regular basis could possibly say who all the staff members were at any given time is unclear.

[20]   Turning to the evidence of the defender herself in more detail, she appeared generally calm and collected although there were times when flashes of anger showed through which was consistent with the evidence of other witnesses, in particular Freda Murray, about the defender's character. She was somewhat contradictory. She claimed that she was not at all ambitious but during her time at Leonard Cheshire she had risen through the ranks of support worker, senior support worker and team leader and had obviously applied for the job as acting care supervisor. In her new job which she started in July 2009, she had, by the time of giving evidence, which was less than 9 months on, had two separate promotions. Her evidence was quite vague in some areas and in others it was very specific. She claims to remember the telephone call from her sister word for word but not the time of day or the length of the call. Her attitude to the call seemed odd. Her family had experienced several unpleasant experiences over the years in relation to the care homes her mother stayed in but she took the view that this incident was "just another one". She claimed not to remember how the alleged assailant was described but claimed to know that it was the pursuer and that it would not be the other Karen who worked there. She claimed to know that at the time she received the telephone call. However, later in her evidence she said that she knew it was the pursuer because "she never worked at Bellevue again". Her reasons for not mentioning this matter in 2006 when the pursuer started with Leonard Cheshire were not convincing. She said it was because the pursuer was not "hands-on" then. This is clearly incorrect. I accept the pursuer's evidence in relation to the extra shifts she worked and in particular that of Freda Murray who said she did a significant amount of hands-on work. This evidence was directly supported by Linda Haydock and also by Beth Paterson who said that Freda Murray would have the best knowledge of this. It is entirely illogical to raise the matter in 2009 but not in 2006 if the reasons she raised it were really the reasons that she led the court to believe. She insisted in her evidence that the question of the telephone call had been dealt with, was in the past and that she had moved on but that was clearly not the case. If that were the case why raise it in 2009 when the pursuer got the job they were both going for?

[21]   There were other inconsistencies in her evidence. It was clear that she and the pursuer had shared a small office for some time. The actual length of time seemed to be disputed by her but even on her own evidence it was at least from May 2008 when she became team leader. At times she said they got on. At times she said she was just acting professionally. At times she said she would cringe and get up and leave. She was evasive, particularly in cross-examination when these apparent contradictions were put to her. She kept emphasising that she had to be asked to apply for various jobs. Whether that was correct or not she did apply and would not have done so if not interested. She accepted that the pursuer was in no way a threat to service users now but nonetheless persisted in raising the incident from 1993. She said she was in no doubt at the time that it was the pursuer and in her own words said that she had "taken it in her stride". She then appeared to take great offence in court when it was put to her in cross-examination that she had said just that.

[22]   In relation to the pursuer's appointment as acting care supervisor, the defender came over as very bitter. However often she said that she was not bitter and that it was not about the pursuer but about her, it clearly was about the pursuer. She made contradictory statements. She said she would not have had a problem if she did not get the job provided the pursuer did not get it. She claimed on more than one occasion to be indifferent to the pursuer which was clearly not the case. When questioned about animosity towards the pursuer her answers changed from being indifferent to not liking her to positively disliking her. She accused the pursuer of being unprofessional and ignoring her or communicating by notes after the allegation had been raised. She seemed unable or unwilling to understand that the bad atmosphere in the organisation had occurred as a result of her having raised the issue from 1993. It seemed a completely natural reaction on the part of the pursuer in the circumstances. The defender accepted, in cross-examination, that it would have suited her if she had been able to stay and if the pursuer had left.

[23]   She was furious about the staff meeting that Freda Murray had held admitting that she had said "How dare you" to her when she heard about it but also she admitted that she had stormed out of the meeting on 22^nd April with a raised voice suggesting people should ask the pursuer why she was sacked from Bellevue. It was entirely unrealistic to expect that management would not do something in the circumstances to try and explain the situation to staff and she seemed unwilling or unable to see that. It also appeared that she had exaggerated or elaborated Freda Murray's response when she made the statement to her initially at Bogroy. Having heard Freda Murray giving evidence it was clear that she was trying to be supportive and sympathetic to the defender at the time. Perhaps the defender genuinely read into what Freda Murray said more than there was and took from what was said that Freda Murray would speak to the pursuer and that she (the pursuer) might then leave. She appears to have taken that to mean that Freda would encourage the pursuer to leave whereas Freda Murray did not accept that she had said any such thing. The defender admitted that she knew there would be trouble when the issue was raised. She admitted that she knew it was sensitive and that she was opening a can of worms. She had told her sister "the shit had hit the fan". Yet she said she was not intending trouble. What exactly did she expect? She gave the clear impression to the court that she felt it was her right to get the promoted job. She criticised the pursuer's qualifications or lack thereof as compared to hers. She said that Freda had seemed supportive and was "siding" with her. On the other hand she said it was not about her against the pursuer. However, she accepted that she had said at the meeting on 22^nd April that if she took time off then "Karen would have won". She claimed that it was never about her getting the acting care supervisor's job but all about Karen getting the job and what it meant to her. There were of course only two applicants. She was determined that the pursuer should not get it. She admitted in evidence saying as she left the meeting on 22^nd April ".......ask her why she was sacked from Bellevue" and that this was addressed to Wendy Ross and Carolyn Tomlinson. She seemed to think that if she kept saying that it was not an accusation or an allegation then that would make it not one.

[24]   In relation to the evidence led by the pursuer and her witnesses, I found the pursuer herself to be a generally credible and reliable witness. She openly admitted that she could not swear 100% exactly what words were used, which is understandable. I accepted her evidence that she was in a state of shock at the time when the allegations were put to her. This was backed up by other witnesses such as Freda Murray in terms of her reaction. She would say in evidence that it was her "best recollection" or similar which contrasted markedly with the defender's dogmatic approach where there was no room for doubt at all. Much was made of the fact that the pursuer had said at one point that Bellevue was a "shit hole". I did not attach any major significance to this in terms of any inference that this somehow supported the defender's allegations. Rather this was probably the normal way the pursuer spoke in the context of the viewpoint of a 17 year old part-time care worker who was working in a care home where the staffroom was apparently a shed. Much was also made by the defender of the pursuer's relationship with her mother and family. It was not entirely clear what relevance this had but the pursuer was open in her evidence about her relationship with her family and about how she was as a teenager. It did not strike me as anything particularly different from most mother/teenage daughter relationships and this was supported by both the pursuer's mother and Freda Murray. Again I do not consider this at all significant in the context of whether the pursuer may or may not have assaulted someone at Bellevue. The pursuer was also open about topics which were raised and which were clearly difficult for her, such as post-natal depression and matrimonial difficulties, when she was asked about them by the defender's solicitor. The questioning was somewhat intrusive but not objected to in any event. It may have been relevant in the context of quantification but in the context of assessing credibility and reliability, the very fact that the pursuer did not seek to hide anything and responded in a very open manner simply enhanced her credibility.

[25]   At the meeting on 23^rd March she was faced with the defender making accusations about her. She immediately suggested calling Mrs Miller. Why would she suggest that if she had in fact been sacked? The evidence from the pursuer and Freda Murray was to the effect that in response the defender had said that she should not bother to call as Mrs Miller had "lost her marbles" or "had dementia". Initially the defender said in evidence that she made no such suggestion but then eventually conceded that she may have said something like "everyone is getting older" because Mrs Miller could not remember. The pursuer, quite properly, accepted in evidence that she could not say if the defender had been telephoned by her sister or not. She was generally straightforward. She openly gave evidence about matters which did not necessarily show her in the best light, such as once being sacked from working in a hotel. In her own words she had been "useless" and the hotel was absolutely right to sack her. She was clear, however, that she had not ever been dismissed from Bellevue or from any other care job. She did not give the impression that she was trying to hide anything.

[26]   Her explanation for leaving Bellevue was entirely plausible, namely that she was fed up working weekends. She said she would have remembered if she had been dismissed and accepted that either she was not dismissed or else she was lying about it. If she were lying why would she have immediately tried to contact Mrs Miller and others in the home? That makes no sense. It is difficult to try and prove a negative and albeit the burden of proof was on the defender the pursuer's immediate reaction was to take that task on board which I consider further enhances her credibility.

[27]   I also preferred the pursuer's evidence and that of Freda Murray in relation to the pursuer doing extra hands-on shifts while she was volunteer co-ordinator. It was noted that the defender could not even be persuaded to say that the pursuer might have been doing extra shifts that she (the defender) did not know about. She was dogmatic that the pursuer did not do extra shifts. The pursuer's evidence, which I accepted, was that she openly talked about her time at Bellevue. This was backed up by Freda Murray. She was heard speaking to a district nurse who had come into the office and who talked about her grandmother having been in the home. The defender was present at the time. Why on earth would the pursuer bother to raise the topic of Bellevue and risk something in her past coming out if she had something to hide? In relation to the question of Mrs Miller having "lost her marbles" the pursuer said that the defender said this. The defender's initial position was that she definitely did not and perhaps it was Freda Murray. Why would Freda Murray say this? She did not know Mrs Miller and had no interest in her. She must have been passing on what the defender had said to her albeit perhaps not using the exact words.

[28]   Evidence was led from Mrs Maureen Sinclair, the pursuer's mother. She spoke to the pursuer being caring and destined to work with disadvantaged or disabled people. She was generally credible and reliable. If she did not remember something she clearly said so. At times she was vague in terms of time scales, for example how long the pursuer had worked in certain places when she was a teenager which was entirely understandable. Her position was that the pursuer had left Bellevue because the hours interfered with her social life. She spoke to the pursuer being distraught after the meeting with Freda Murray. They had sat and talked and tried to think of people who would remember Bellevue when the pursuer had worked there. She considered that she would have known had her daughter been dismissed and considered that her relationship was a normal relationship with a teenage daughter.

[29]   The pursuer's father, George Sinclair, was not able to add much. He had worked off-shore during the pursuer's youth and was not nearly as involved with her as his wife was. He did confirm that she wanted to work in the care industry. He was straightforward but did not remember much about when the pursuer had worked in various places. He thought he would have known had she been dismissed.

[30]   The pursuer's husband, Alan Fraser, met the pursuer when they were 18. She had always wanted to work in the care sector. His recollection was that she had left Bellevue because she was fed up with weekend work. He would have remembered if she had been dismissed. She would have told him. He could not have forgotten that. He was straightforward in his evidence and I had no reason to disbelieve him. His knowledge in relation to certain matters was limited.

[31]   Barbara Robertson was a support worker with Leonard Cheshire and also worked as a volunteer there. She spoke of the pursuer and defender working in the same office for around 3 years (which clearly must be an overestimate). She felt that she got on with both of them and saw no problems between them. She spoke of the pursuer helping out on shifts. She heard the defender leaving the meeting on 22^nd April saying "just ask her why she got sacked from the nursing home". She heard the specific allegations after that but guessed immediately that it was about the pursuer. She was told in more detail later at the meeting Freda Murray called with staff but the pursuer had already explained to her by then. I found her to be credible and largely reliable.

[32]   Linda Haydock is the administrative training co-ordinator with Leonard Cheshire Disability. She saw no problems or animosity between the pursuer and defender. She had seen them in the past having a laugh together. She spoke to the pursuer having hands-on work doing extra shifts, even while volunteer co-ordinator. She spoke to both the pursuer and defender being passionate about the care industry. She witnessed the defender leaving the meeting on 22^nd April. She had specifically asked her how she got on and heard the response "why don't you ask Karen why she got sacked from Bellevue". When pressed on this she said that she thought that the defender had used the word 'Karen' but in any event even if she had not she took it as referring to the pursuer. She spoke to the defender being very angry. She felt very strongly that the defender, being passionate about care, had a duty to inform Leonard Cheshire Disability in 2006 when the pursuer started work there if she believed the allegations.

[33]   Freda Murray was called by the pursuer but also featured on the defender's witness list. She is the service manager at Leonard Cheshire Disability. She gave the impression of being somewhat weary about the whole affair. I got the impression she felt uncomfortable being stuck in the middle of a dispute between two staff whose work she valued greatly. The impression she gave was that she had tried at the outset to deal with matters in a way that would appease both parties in the hope that matters would just settle down. Clearly they did not and with hindsight she wished she had not got so involved. She was straightforward and did not seek to avoid any difficult questions. If she did not know the answer she would simply say so. On occasion she accepted that she could have been mistaken in her earlier evidence. The defender's solicitor, in submissions, has taken this to signify unreliability but I take it as having an open mind and a preparedness to consider the possibility that she might be wrong. She was not dogmatic in her evidence. She was generally credible and reliable. I do not accept the defender's contention that Freda Murray's evidence varied terribly much between examination-in-chief and cross-examination in any event. The fact that she does not have such a detailed memory of some incidents as the pursuer and defender in my view is not a sign that she is lying or misleading the court, or is unreliable, rather simply that these incidents at the time did not feature so strongly with her as with the others and were of less significance to her at the time. It is quite natural that she does not have such a strong memory or recollection of them. Her evidence was that both parties were valued employees and that the pursuer, when volunteer co-ordinator also had a hands-on role. She saw her in the role of a senior social worker. The pursuer and defender got on well. They shared jokes. She was sure that she would have picked up any negativity. She had to tell the defender that she had not got the job and said that the defender seemed very angry immediately on being told about the job. She had immediately raised the pursuer's lack of qualifications. Freda Murray was surprised at her anger but she had seen flashes before. The defender asked to meet her at Bogroy and told her of the phone call. She had said then that she was choosing her words carefully. Freda Murray had remembered the expression used as "had her hands on". The defender said told her that she had called the matron but the matron had dementia. The defender said "that she had to be 150% sure". She had said she could work beside the pursuer but not under her. When she told the pursuer about what the defender had said the pursuer's reaction was total disbelief and from that reaction Freda Murray immediately considered that it had to be untrue. She asked the pursuer why she had left Bellevue and the immediate response was that she was a young girl with a social life and that it was a good nursing home but that as a young care assistant she had not felt very valued. It is notable that this was her immediate reaction and that the pursuer would not have had time to think up any answers at this time. Freda Murray felt that she supported both parties and probably the defender more than the pursuer and regretted now getting personally involved. At the meeting on 22^nd April she realised she could do nothing more to resolve matters. The defender was very angry and raised her voice, shouted and stormed out. She had seen flashes of anger before and outbursts when the defender had not got what she wanted. She had witnessed a conversation between the pursuer and a community nurse regarding her experiences at Bellevue. The pursuer did not hide the fact that she had worked there. She personally did not hear the words said by the defender when "she stormed out of the meeting" but she did see the people in the corridor and the shocked look on their faces. She was asked if, when the defender said she was not making an accusation, in fact she was. Her evidence was that it was "one and the same thing". She also said that the defender had told her that it was true and that the pursuer had done it. She felt as if the defender was trying to absolve herself of any responsibility. In summary I found her to be a generally credible and reliable witness who found herself in a very difficult situation being stuck in the middle. She valued both employees. She tried to help resolve matters. She gave the impression that she now wishes she had never got involved.

[34]   Yvonne Gilchrist, a cousin of the pursuer, was a reluctant witness. She did not add much. However, she confirmed that she was the partner of the defender's middle son, Scott, for around 6 to 7 years from age 15 to 21 or so. She had never heard any discussion about the alleged incident by the defender's family in front of her. My general impression was that she did not want to become involved.

[35]   Lesley Sharp manages a care home in Inverness and has done so for 10 years. She used to work in a hotel very close to Bellevue Nursing Home and Mrs Miller's daughter, Julie, also worked there. She knew the pursuer then. She thought that she would have heard if the pursuer had been dismissed.

[36]   Mrs Kathleen Miller, the previous owner/matron of Bellevue Nursing Home gave evidence. She had been described by the pursuer in evidence as "old school" and "running a tight ship". Everyone who gave evidence spoke very highly of her and the way she ran the nursing home in terms of patient care. She ran the home from 1976 to 2001 when it closed. There were 23 dependent elderly patients. She recognised both the pursuer and the defender in court. She had not seen the pursuer for some considerable time. She remembered her but not how she had finished working at the home. She said that she sometimes disciplined younger care workers but she did not remember having to discipline the pursuer. Two people were dismissed during her time, but not the pursuer. She said that the defender had been in touch with her last spring to ask if she remembered the pursuer being sacked for abusing her mother. She remembered that there were two Karens, Karen MacKenzie and the pursuer. She said that had anything happened she would have called for advice to her external advisors who she had employed since 1986 (not 1996 as submitted by the defender). She did not remember making any call. She had thought and thought since she had been approached last year but remembered nothing about any alleged assault on the defender's late mother or how the pursuer left. She said that often people left because of the hours or because they got work nearer to home. When she was asked if someone had been dismissed for assaulting a resident, would the police have been informed, her answer was a straightforward "I don't know, it never happened". Mrs Miller gave the impression of being completely on the ball and rather than having lost her memory because of advancing years, gave the impression of having tried very hard to think if anything had happened and genuinely could not think of anything. I found her evidence to be credible and reliable and generally very supportive of and consistent with the pursuer's position.

[37]   Christine Calder was a retired nursing sister at Bellevue and had worked there for 25 years. It was very well run. She remembered the pursuer who she described as a very good worker. She had worked with her. She could not remember how long the pursuer was there and thought that she had just left as "young girls would move on". There was nothing to make her remember the circumstances of her departure. If there had been an assault and if the pursuer had been dismissed she would have known and she would have remembered. She does not remember and therefore is confident that it did not happen. She also remembered the defender's late mother. Even if the owners had decided to deal with the matter themselves and not use their advisors on this particular occasion, it would have been discussed with senior staff. She thought there was no particular reason why the pursuer had left. She was straightforward and down to earth and was happy to say when she did not know an answer to any particular question. Having been at Bellevue for 25 years she certainly gave the impression of someone who would have known exactly what was going on there. I had no reason to doubt her evidence.

[38]   Beth Paterson was the H.R. manager for Leonard Cheshire Disability. She was called in by Freda Murray when it was apparent that things could not be easily resolved. She used to come to Inverness from time to time for training and other reasons and her impression was that the pursuer and the defender seemed to get on well. She had not at first realised the enormity of the situation or how distressed both parties were. She accepted she was perhaps a little detached as, at the time, she had been dealing with redundancies and an employment tribunal. She thought that the defender's explanation that the pursuer did not work with service users did not make sense as the pursuer would see service users every day. She said, however, that Freda Murray would be the best person to answer the question if the pursuer was hands-on and that the court could rely on Freda's evidence on this. She had seen no evidence of cringing on the defender's part. She considers herself to be very perceptive and thinks that she would have picked up if there had been any tension. The pursuer was, in her opinion, very distressed following the allegations but did come in and do her job and did not act unprofessionally. She had got the impression that the defender wanted to bring matters to a head and that if the issue of Bellevue was not working she would use something else and so raised recruitment qualifications causing the meeting to go in a different direction. When she and Freda Murray tried to give feedback to the defender on the recruitment and interview process, the defender said she did not want to hear and would take it "elsewhere", putting her hand up, saying "stop there" and walking out. She was distressed and agitated and she heard her in the corridor saying something along the lines of "I'm off, apparently the right person got the job, you should ask why she left Bellevue". At least two staff were there at the time. The defender was speaking in a raised voice and Beth Paterson was concerned for the staff. She had noted that the defender had said it was never her intention to cause trouble and her immediate thought on this at the time was that if it was never her intention then why would she do it. I was impressed by Beth Paterson as a witness. She had only become involved around a month after the initial incident and because she did not work with the parties all the time was able to take a detached and objective view. I got the impression that she did not have any axe to grind, was carrying out her duties as H.R. manager in a fair manner and was very surprised at the situation she found in Inverness.

[39]   Fiona Johnson is an auxiliary nurse and in the early 1990s worked in Bellevue as a care assistant. She could not remember if the pursuer was full-time or part-time. She thought that the pursuer had not stayed terribly long, and had left before her and remembered that she had wanted to work in the Corbett Centre. She could not remember anything untoward in relation to the pursuer. She could not remember anyone being sacked. She thought that as it was such a small place she would have been aware if that had happened. I got the impression that she was fair and was not trying to take sides and was genuinely trying to give assistance to the court in terms of what she knew however limited.

[40]   The final witness for the pursuer was Jane Day who worked at Bellevue. She knew the pursuer when she worked there. She could not remember exactly when it was. The pursuer always had a smile and had a lot of time for patients and never had a bad word about anyone. She was always happy. So far as she recalled, the pursuer just left to go to another job. While she was not able to say much, her evidence was at least consistent with that of the other witnesses in terms of the pursuer's general character and demeanour.

[41]   At this point I should mention briefly a topic upon which evidence was led by both parties. It is not clear whether the episode relating to the "family party" is of any real relevance but, I think it is necessary to mention it as it did take up some time in evidence and does seem somewhat symptomatic of the different approaches of the pursuer and the defender. Both parties gave evidence about this episode to some extent. The evidence was extremely confusing. It appears to have arisen from the meeting between the defender and Freda Murray at Bogroy. The suggestion was that the allegation that the pursuer had lifted her hand to the defender's mother was widely known in any event and was discussed at "family parties". As the pursuer led in this case, she gave evidence about this first. At the time, it seemed a strange line of evidence although subsequently it became clear why it had arisen. The pursuer gave evidence to the effect that Freda Murray had passed on to her that the defender had said that her son had been at a family party and had heard the topic discussed openly. It was not clear whose family party was being talked about but the pursuer and her mother clearly assumed it related to the defender's family parties and the pursuer's mother took it upon herself to ask her brother and sister-in-law and then her niece (Yvonne Gilchrist who had been the defender's son Scott's partner for some years) if it had been common currency at Scott's family parties. Freda Murray was clear in her evidence that the suggestion had come from the defender. Yvonne Gilchrist, the reluctant witness, gave evidence which I accepted, that it was never discussed in front of her. The defender in cross-examination, however, said that it must have been talked about at Yvonne's family parties because her family "do not have parties". However she also referred to it being discussed at a party where "drink was taken". This line was all very puzzling. Why would it have been discussed at the pursuer's family parties? I do not accept that it ever was. I consider that the defender was trying to minimise the impact of the allegation she had raised by suggesting that everyone knew about it anyway as evidenced by the fact it was being talked about openly at parties. In evidence she denied saying it yet both Freda Murray and the pursuer said in evidence that she had said it to Freda Murray who passed it on to the pursuer as coming from the defender. The defender then said in evidence that she did know of it being discussed ("at a party where drink had been taken") but notwithstanding that her position was still that she had never mentioned it to Freda. This makes no sense at all and further damages the defender's credibility. Why on earth would the pursuer or Freda Murray have made this up? They would have had no interest in so doing. Both were consistent in their evidence. The pursuer, again, has tried to do her best to disprove the evidence in relation to the family party. The defender's sister was asked and she also said that she was aware that the defender's son, Scott, had heard it spoken about at the pursuer's family parties. Again, her story was totally consistent with that of the defender's in relation to Scott having heard it discussed but again was equally as vague as the defender as to where and when. In relation to this topic I am satisfied that the defender did raise this topic at the Bogroy meeting, (there is no other plausible explanation for the topic having been raised at all), but I am not satisfied that anyone ever discussed it at any family parties. No evidence was led from the defender's son Scott in relation to this topic. The suggestion that it was discussed at the pursuer's family parties frankly is so incredible it can be discounted without further discussion. The evidence in relation to this topic adds nothing specifically to the case but, in my view, detracts further from the defender's credibility.

Veritas

[42]   It is very difficult to try and prove a negative. Although the pursuer does not have to prove that the incident did not happen and it is up to the defender to prove that it did, the pursuer has done her utmost to try and prove or at least show that no such incident happened.

[43]   For the reasons I have already given I do not find the defender's evidence to be credible and reliable. Neither do I find her witnesses' evidence to be credible and reliable. The overwhelming body of evidence from the witnesses did not support the defender but was entirely consistent with the pursuer's position. The witnesses were not just her family and husband or friends but included people who had known her in the past but had had no contact with her for some considerable time and people from her workplace who gave the impression that they were entirely neutral. I have concluded that the defender's sister may at some stage have received a telephone call from someone in charge of a nursing home where her mother resided relating to an incident regarding her mother but standing the evidence before the court, in particular the evidence from Mrs Miller and Mrs Calder taken together with the evidence of the pursuer and the other witnesses who gave evidence for the pursuer, I am not satisfied that any such call was made by Mrs Miller in relation to Bellevue and I am certainly not satisfied that it involved the pursuer. Given the passage of time it is quite understandable that the defender's sister's reliability may be in question and that she may have muddled up one incident and having discussed it with her sister many years later the two of them may have put two and two together and genuinely convinced themselves that the incident related to the pursuer, Mrs Miller and Bellevue Nursing Home but in the face of the substantial body of evidence suggesting otherwise, I have concluded that they are mistaken in this regard. The only alternative plausible explanation is that their version of events is simply lacking in credibility. In any event in all the circumstances I am satisfied that the defender's defence of veritas cannot and does not succeed.

Qualified Privilege

[44]   Having decided that the defender has not succeeded in her defence of veritas, which of course she has the burden of proving on the balance of probabilities, it is now necessary to turn to her esto case, namely that she is covered by qualified privilege. Again, in relation to qualified privilege, the burden of proof is on the defender to establish that qualified privilege applies. If it does not, then the pursuer succeeds and is entitled to damages. If qualified privilege does apply then the court requires to consider whether there is malice or animosity involved. If there is, then the pursuer will succeed notwithstanding the protection of qualified privilege but if there is not, the defence will be successful.

[45]   Reference was made by the defender's solicitor in submissions to a number of authorities and in particular to the Scottish case of Cochrane v. Young 1922 SC 696 which adopted a definition of qualified privilege contained in an English case Wright v. Woodgate 1835 2 S M and R 573:

"The proper meaning of a privileged communication is only this: that the occasion on which the communication was made rebuts the inference of malice prima facia arising from a statement prejudicial to the character of the plaintiff and puts it upon him to prove that there was malice in fact - that the defendant was actuated by motives of personal spite or ill will independent of the occasion on which the communication was made."

[46]   The Scottish case of Hines v. Davidson 1935 SC at 30 adopted the guidance contained in the English case of Toogood v. Spyring 1834 1 C M and R and made it clear that a relevant statement giving rise to qualified privilege is one

"....fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned."

[47]   In order to benefit from the protection of qualified privilege the communication requires to be made to someone legitimately interested in the matter and whether qualified privilege exists is a matter of law.

[48]   Reference to the case of Fraser v. Mirza 1993 SC (HL) 27 was made by both parties. The case proceeded on entirely different facts and circumstances but there is a useful passage in Lord Keith's judgment

"So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. "Express malice" is a term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the plaintiff sets out to prove. But to destroy the privilege the desire to injure must be the dominant motive for the defamatory publication; knowledge that it will have that effect is not enough if the defendant is nevertheless acting in accordance with a sense of duty or in bona fide protection of his own legitimate interests. The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true, this is generally conclusive evidence of express malice, for no sense of duty or desire to protect his own legitimate interests can justify a man in telling deliberate and injurious falsehoods about another, save in the exceptional case where a person may be under a duty to pass on, without endorsing, defamatory reports made by some other person."

[49]   Gloag and Henderson states at 30.12 "Qualified privilege does not relate to persons or to the nature of statements but to occasions and it is for the court to decide whether or not the occasion is privileged, although it may not be possible to do so until the relevant facts have been ascertained". It is clear, and I think accepted by both parties, that the onus is on the defender to show that the actionable statements were made on occasions which were privileged and that if she establishes that the occasions are subject to qualified privilege, then the onus switches back to the pursuer, to show that there is in fact malice.

[50]   It was submitted on behalf of the defender that on the first occasion when the initial statement was made (to Freda Murray at Bogroy) it was a statement made by way of explanation as to why the defender felt unable to continue to work at Leonard Cheshire House and was therefore made in the conduct of her own affairs. The meeting was on a one to one basis with her line manager, Freda Murray, who was the appropriate person with whom to raise such an issue and explain her position. It was also submitted by the defender that the second and third occasions followed directly as a consequence of the first, and that both were arranged by the employer of the pursuer and defender and therefore were privileged occasions. I am not persuaded by these submissions. I accept the submissions that in broad terms defamatory utterances would be protected by way of qualified privilege where it is found that they are issued in response to a legal, moral or social duty and within those categories, either issued in the public interest or for a private interest. Clearly there is no legal duty arising here. Likewise, I do not accept that there was a moral or social duty. Had the defender seriously felt that she had a duty to inform her employers of the pursuer's past, because of some concern for service users, she would have been under that moral or social duty to do it when the pursuer started her employment in 2006. I have already discounted the defender's evidence in relation to the pursuer not having any hands-on work in her role as being inaccurate. I have already referred to the fact that I prefer the pursuer's evidence and that of Freda Murray and other witnesses in this connection. Clearly she did have hands-on duties. In any event, the defender herself eventually stated clearly that she had never suggested that the pursuer presented any danger to service users in her work at Leonard Cheshire. Indeed, as the pursuer's solicitor has indicated in submissions, she was keen to stress this. This appears, of course, to contradict her reason for not raising the topic in 2006 on the basis that the pursuer was not doing hands-on work with service users then. On that basis I agree with the pursuer's submissions that the defender could not be covered by the defence of qualified privilege in relation to any moral or social duty.

[51]   The defence of qualified privilege could, therefore, only succeed if based on the protection of a private interest of the defender. The defender's submissions in this regard concentrate on the fact that the court requires to look at the occasion and not the statements. The pursuer's solicitor ultimately accepted that the court had to consider the occasion. The argument was that the occasion was the meeting between an employee and an employer in which the employee is advising that she cannot continue to work for the employer, an occasion therefore prompted by the defender acting in the conduct of her own affairs and relating to her own interests. It was submitted that this clearly falls within the context of occasions attracting a qualified privilege. It was submitted by the defender that the statements made by her were in the context of meetings and discussions with a fellow employee and related to whether the defender would remain in her employment with Leonard Cheshire Disability. It is not clear at all from the evidence that that is indeed the case.

[52]   Reference was made by the pursuer's solicitor to the case of Chapman v. Barber 1989 SLT 830. Completely different circumstances were involved. A director of a company took issue with draft minutes issued by another director and in response made allegations of the first director acting maliciously and against the interests of the company. The defender there had an interest in putting the record straight and putting his side of the argument. There was a current draft minute which he was able to put right. In this case, the pursuer submits, no such live issue has arisen; not only is there no live interest but the incident is some 17 years old. The defender was at pains to say in evidence on a number of occasions that she spoke to Freda Murray because "it was about me". In my view it is not sufficient for the defender simply to say that because it was a meeting between herself and her line manager then the occasion was automatically covered by qualified privilege. Even from the defender's own evidence it was not clear why she was telling Freda Murray of the allegation. By her own evidence she did not consider (now) that service users were at risk and she did not suggest she was not going to be able to work her notice period. It seemed to me that her decision to move job following an interview for a promoted post where the only other internal candidate got the job was entirely a normal reaction and that perhaps she has raised the allegation in relation to the pursuer as some sort of justification either to herself or to Freda Murray, or indeed to both. It is perhaps significant that when the defender met Freda Murray at Bogroy, Freda Murray said she wanted to discuss this with her own line manager Billy Thomson but the defender refused to allow this. Yet when asked if Freda Murray could raise it with the pursuer she consented. If this was genuinely an issue relating to her interests in terms of her employment surely the logical person that matter required to be raised with was Freda Murray's superior, the General Manager, and not the pursuer? The defender's position on this simply does not make sense in the context of arguing that the occasion was one where the defence of qualified privilege was open to her in the circumstances. For all of these reasons, having considered the evidence, I do not consider that the occasion in question, just because it happened to involve a meeting between the defender and her line manager, is one to which qualified privilege applies and accordingly I find that the defender's esto defence of qualified privilege also fails. In any event qualified privilege could only be argued as a possible defence in relation to the initial occasion (at Bogroy) and its immediate repetition (at the meetings in March) but not to the subsequent utterance following the meeting on 22^nd April which on any view could not be argued to be an occasion to which qualified privilege could apply.

Express malice

[53]   If, however, I am wrong in law and the occasions upon which the defender made the actionable statements were indeed privileged then the question would arise as to whether the statements were motivated by "express malice". Both parties agreed that the onus would shift to the pursuer at this stage. Further reference was made to the case of Fraser v. Mirza. To establish express malice the pursuer requires to prove that the dominant motive in the defender's mind was to harm the pursuer's interests and it is not sufficient for the pursuer to establish that the defender simply knew that an effect of making the statement would be to injure the pursuer's interests. It was submitted by the defender's solicitor that the defender was motivated by a concern for her own interests and not a desire to harm the interests of the pursuer. In his submissions the defender's solicitor goes on to refer to various passages of evidence mainly given by the defender and he relies on that evidence to support the submission. At this stage, I would observe, in passing, that for the reasons I have already given when considering the whole evidence in this case in some detail, I have not found the defender to be a credible and reliable witness. Essentially the defender's submissions were to the effect that because the defender said in evidence that it was about her rather than about the pursuer then that meant that express malice was not intended. The pursuer's solicitor's submissions, largely relying on the same evidence, was essentially to the effect that the whole circumstances required to be looked at in particular the attitude in general which the defender had towards the pursuer.

[54]   Accordingly, if I am incorrect in law, and if any of the occasions when the actionable statements were made are in fact covered by qualified privilege, then the question of express malice, which the pursuer would have to prove, essentially boils down to one of credibility and reliability of the witnesses in general and specifically the evidence of the defender in relation to her motive.

[55]   The pursuer's solicitor submitted that the defender's evidence was evasive and ultimately unsatisfactory in relation to the pursuer. On the one hand she claimed that the incident at Bellevue, although serious, was one which had been dealt with and was in the past. Her evidence was certainly very confused and confusing in relation to how she felt when the pursuer started work in 2006. On the one hand she said she had moved on and on the other hand she felt sick about it. She was pressed in cross-examination about whether she liked the pursuer, disliked the pursuer, did not like the pursuer or was indifferent to her and her evidence was, to say the least, confused and confusing. The pursuer gave clear evidence that she had thought she had got on well with the defender until the interview for the promoted post and subsequent events and I have no doubt that she was telling the truth in that respect. More importantly perhaps, Beth Paterson, Linda Haydock and Freda Murray all considered that they would have picked up on any animosity between the pursuer and the defender. More than one person spoke about the pursuer and the defender sharing a room and having a laugh together for example on one occasion in relation to the defender trying on the pursuer's high heeled shoes yet the defender would have the court believe that throughout this whole period in which she shared a room she was constantly cringing, leaving the room and generally feeling uncomfortable. As the pursuer's solicitor submitted, either the defender was being untruthful about her true feelings towards the pursuer until the promoted post came up or alternatively she was dissembling in a proficient manner during that period. Either way, her credibility is affected. As already referred to, when considering the evidence, the defender was very keen to make it clear that she was not at all bothered about obtaining a promoted post albeit that clearly she had already obtained promotion at Leonard Cheshire Disability on more than one occasion and had applied again for promotion. She gave evidence that it was not because she had hostile feelings about not getting the job but rather an anxiety about how she could continue to work with the pursuer. The defender's solicitor relies on the defender's evidence that she gave that she was not motivated by disappointment or frustration about not getting the job and that it was not "sour grapes" because she did not get the job. Again, as was a feature in her evidence I have referred to earlier, it seemed that the defender took the view that if she kept repeating something then that would automatically make it the truth. Accordingly, even if the evidence suggested that her actions were indeed based on disappointment at not getting the job if she said it was not that then that meant that it could not be. The defender's solicitor submitted that Freda Murray, in her oral evidence, stated that she was surprised by the defender's reaction on being told that she had been unsuccessful in her application and that therefore her reaction could not reasonably be explained by the defender simply being upset at not achieving a promoted post given the evidence of her general lack of ambition. It was submitted that it was wholly consistent with her appreciating that she was not going to be able to continue working at Leonard Cheshire because she was now to be line managed by the pursuer. In passing I would point out that the defender relies in other areas of the case on the fact that Freda Murray's evidence was to be considered as almost entirely unreliable but, in any event, her reaction, which surprised Freda Murray, could, in my view, equally be consistent with an expectation that she would get the promoted post and that the pursuer would not. It was submitted for the defender that there was no evidence of her making the statement to anyone other than her line manager at Bogroy and in the two subsequent meetings and that this therefore emphasised that she was not motivated to harm the pursuer. It is not clear why the defender would necessarily have to go further to cause harm to the pursuer. Just because the actionable statement was kept to a fairly small grouping of recipients, while clearly having a bearing on quantification, does not necessarily mean that it was not motivated by malice.

[56]   The pursuer's solicitor refers to the motivation of the defender in arranging the Bogroy meeting. As has already been noted, the defender accepted that any reference to the alleged incident in 1993 would inevitably cause trouble. All the evidence points to an animosity on the part of the defender stemming from her not obtaining the promoted post. From the minutes of the meeting of 22^nd April, and from the defender's direct evidence in court, it was clear that the defender would have been happy and satisfied with the outcome if the fact of her divulging the allegation had indeed resulted in the pursuer leaving and the defender obtaining the post. The defender's suggestion that the meeting at Bogroy was motivated by her wanting to explain to Freda Murray why she was leaving does not sit well with her evidence that Freda Murray had suggested at that very meeting that the pursuer would probably leave when the allegation was put to her. Clearly, even at this stage, therefore, the defender had some hope that the raising of the allegations in relation to the pursuer would result in the pursuer leaving. This view is fortified by the fact that she wanted Freda Murray specifically to speak to the pursuer about the allegations but not to Billy Thomson. I would reiterate, in passing, that I do not accept that the comments attributed by the defender to Freda Murray in relation to the pursuer leaving or not being loved by her mother in fact were made.

[57]   In considering the question of malice, it is interesting to note the comments of the defender at the meeting on 22^nd April when, it was made clear to her (as noted in the minutes) that the allegation in relation to Bellevue was not going to be investigated and that Leonard Cheshire Disability would not take any action in that respect. The immediate response from the defender as noted in the minutes is "then I have to go down the other route... ." This referred to the fact that she then intended to make an issue of the parties' respective qualifications or lack thereof. The impression she gave was that having tried to damage the pursuer's reputation by raising the allegation from 1993, and having got nowhere, she then chose to raise the qualifications issue. This does not sit well with her claim not to have been interested in getting the post per se but simply not wanting to work under the pursuer as her line manager. The very fact she raised a formal grievance in this respect suggests that she was looking for one possible outcome, namely that the decision on the promoted post be reversed and the defender being offered the position instead of the pursuer.

[58]   Her hostility towards the pursuer is evidenced further by the fact that having raised the 1993 allegation then the qualifications issue, she then chose to refer to what she considered to be the pursuer's unprofessional conduct during the period from 23^rd March until 22^nd April. This is referred to in the minutes of the meeting. It was examined in evidence and boiled down to some fairly petty and minor complaints about the pursuer and her behaviour following the allegations having been made. It is perhaps appropriate at this stage to wonder how exactly the defender imagined anyone might behave in a workplace if such an allegation were made against them. She was upset that the pursuer had not introduced her to someone she was showing round, communicated by e-mail rather than face to face, left messages on her desk rather than speaking to her and so on. What did she expect? Beth Paterson did not think the pursuer acted unprofessionally. Freda Murray said that in one respect she thought the pursuer should have acted differently but understood why she had behaved like that. I consider that the very fact that the defender raised these complaints at all at the meeting is indicative of her general attitude towards the pursuer which is one which clearly displays animosity.

[59]   The defender's submissions in relation to express malice based on the evidence are not, in my view, sustainable. Just because the defender persists in saying that she was not acting out of malice or animosity towards the pursuer does not mean that is in fact the case. The question of express malice is ultimately a matter of fact which has to be inferred from all of the evidence. Having considered all of the evidence before me, and taking into account the credibility and reliability of the various witnesses, I am satisfied that, if I am wrong in law and any of the defender's actionable statements and the occasions she made them are in fact covered by qualified privilege, then I would have found in any event that the pursuer had established on the balance of probabilities that the defender's dominant motive in making the statements was express malice and accordingly the defender's esto position must also fail.

Quantification

[60]   In relation to quantification of damages there were originally two potential heads of claim, namely solatium for hurt feelings and loss of public standing, and patrimonial loss. At the outset of submissions it was conceded that there was no patrimonial loss and that claim was not insisted upon. The only claim being made was one for solatium but that was in the context of someone working in the care industry.

[61]   Reference was made to the Stair Memorial Encyclopaedia, Volume 15, paragraph 551 and to Gloag and Henderson, paragraph 30.24. Reference was also made by both solicitors to case law as noted in their submissions. It is clear from the authorities that the assessment of damages is essentially a jury question and the court has a very wide discretion. Little guidance is available as each case depends upon its own facts. A lot of the authorities relate to quite different circumstances, for example where a newspaper with a widespread circulation has published defamatory statements about a pursuer. Parties were at odds in relation to quantification with the pursuer's solicitor submitting that the sum sued for (£38,000) would fall within an appropriate level of award, whereas the defender's solicitor suggested that only a nominal payment in the region of £400 would be appropriate.

[62]   I accepted the pursuer's evidence that she was very upset when she heard what was being said on 23^rd March. I had no reason to disbelieve her account of her feelings then or indeed at the time of the subsequent meeting on 22^nd April. Her description of her feelings was backed up by evidence given by her mother, Freda Murray and Beth Paterson. She went home immediately she heard of the accusations and tried to think of ways to disprove them. She went almost immediately to see a solicitor.

[63]   I am satisfied that her future in the care industry will not be affected. While there is no suggestion, now, of any claim for patrimonial loss, the court was asked to consider the pursuer's claim in the context of working in the care profession. All the evidence indicated that she had a clear Disclosure Certificate. The pursuer's own evidence indicated that her disclosure had been checked "25 times". The evidence of her current employers was that her employment with them would not be affected and their evidence was that any future job would be based on references and a clear Disclosure Certificate and there was no suggestion that any references from Leonard Cheshire Disability would be anything but positive.

[64]   I do not accept, however, that the allegations are affecting the pursuer's every waking hour as was submitted by her solicitor. I accept that she may well be thinking about the issue a lot of the time, however it appeared from her evidence that she was probably thinking more in the context of her anxiety regarding the court action rather than her reaction to the actual allegations themselves. Her own evidence indicated that the raising of court proceedings and what it was costing had put a big strain on herself and on her family.

[65]   This conclusion is supported by the evidence of the pursuer's mother who said that the issue "raises its head" but also said that the pursuer was "quite stoical". Her husband, when asked if she was still suffering in relation to the accusations said "Yes maybe sometimes. I do see it sometimes." I have no doubt that the pursuer is under considerable strain but I consider that almost all of that can be put down to the ongoing court action rather than the actual actionable statements themselves. On that basis, and although I was not addressed specifically on this by either solicitor, I have concluded that for the purpose of interest the whole award of damages for solatium should be allocated to the past.

[66]   A report was lodged by the pursuer written by Seonaid Rose, a psychologist (No. 5/2/4 of process). I accept from the pursuer's evidence that she has attended Ms Rose and that she feels she has benefited from those attendances. For the reasons given by the defender in submissions I am not able to attach any weight to the actual report which was not agreed or spoken to. The report is undated. The pursuer was taken through the report in examination in chief but all that the court can take from it is that the pursuer has attended Ms Rose. It appeared that Ms Rose, although cited, was not able to attend court and therefore she did not speak to her report. No adjournment was requested by the pursuer in this respect. The report was not agreed. As Ms Rose did not attend court to give evidence, the defender's solicitor was unable to cross-examine her. His submissions in this respect are clear and in my view appropriate. No evidence was led as to the nature of Ms Rose's qualifications or expertise. Her opinions have not been explored or tested. No mention is made in the report of previous occasions when the pursuer suffered psychological ill health and attended Ms Rose. The report did not state upon what information her opinions were based. It was not stated whether Ms Rose had had access to other background information. The pursuer's own evidence suggested that she did not think Ms Rose would have had access to her GP records. The report clearly relies on what the pursuer told Ms Rose at the time. For all of these reasons I am unable to attach weight to the report .

[67]   It was also noted, and accepted in evidence, that the pursuer has not attended her GP at any stage in relation to any anxiety or distress arising out of the allegations. She had attended her GP when she had previously experienced problems of anxiety or depression in the past.

[68]   The defender's submission is that the pursuer had no particular affinity to the care industry but I do not accept that. While she did, in her youth, work in a number of different jobs, for most of her working life she has worked in the care industry and the bulk of the evidence before me supported the fact that she did have such an affinity. The fact that she did not go down the route of training to be a social worker was not, in my view, significant. By the time she would have had to make that decision, she had other responsibilities. The allegations made clearly related to the pursuer's ultimately chosen line of work and on that basis it is quite understandable that they may have affected her more than, for example, an allegation about her behaviour in a social setting.

[69]   Finally, in relation to quantification, certain submissions were made by the defender in relation to the extent of the circulation by the defender of the relevant statement and the response of those who heard the defamatory statement. In this connection, I agree with the defender's broad submissions to the extent that the circulation was not particularly widespread. Certainly this is not a case which can be compared in any way to a lot of the cases quoted to me by way of authority which relate to publication in newspapers which is the more common type of case where a claim for defamation is raised. The defender submitted that she made the statement complained of to only four people, Freda Murray at the Bogroy meeting on 19^th March 2009, the pursuer at the meeting with Freda Murray on 23^rd March 2009 and Beth Paterson and Natasha Gray at the meeting of 22^nd April 2009. That is not, in fact, an accurate representation in terms of the evidence before the court although I do accept that a limited number of people heard the allegations. The defender's position is of course that the "outburst" following the 22^nd April meeting was not actionable, which submission I have rejected for the reasons given. Two credible witnesses said in their evidence, as outlined above, that they knew that the outburst made by the defender as she left the meeting on 22^nd April 2009 must refer to the pursuer. In any event, I do accept that in general terms a very limited number of individuals heard the allegations from the defender and it amounted to a fairly narrow publication of the actionable statements.

[70]   In terms of the response of those who heard the defamatory statements, much has been made by the defender of the fact that the pursuer's employers did not take any steps to investigate the actual allegation or make any suggestion to the defender that her future was in any doubt. In that regard, I accept that following upon the initial statements having been made and the meetings the pursuer had with Freda Murray and Beth Paterson on 22^nd April 2009, the pursuer, by that stage, would have been aware that her current employment was not at risk but I think it is fair to accept that she would have been subject to some general anxiety in relation to her future in the care industry.

[71]   The pursuer's solicitor's submissions in relation to solatium referred, at some length, to the evidence which was led and which I have already outlined in some detail above. I will not rehearse that evidence again. Reference was made by both parties in submissions to a number of authorities. What is very clear, in relation to quantification, is that every case has to be dealt with on its own facts and merits. It is clear that the court has a very wide discretion in this respect. The court was faced, in this case, with submissions from the pursuer that the sum sued for (£38,000) was well within the appropriate upper level of an award whereas the defender suggested that only a nominal amount would be appropriate and the figure of £400 was suggested.

[72]   The defender's solicitor referred to a passage in Gloag and Henderson at 30.24 which states

"A pursuer who proves that he has been defamed is eo ipso entitled to an award of damages, which may be nominal."

[73]   The defender's solicitor also referred to the case of Anderson v. Palumbo 1986 SLT 46. This case related to a police officer who was defamed and spent a period of around 4 months when he was subjected to a degree of worry as to his future and some embarrassment but there was no question of damage to his career or prospects in the police force. The defender's submission was that little helpful guidance can be gleaned from the authorities other than the indication from this case that solatium can be assessed at a nominal level. While it is clear that a nominal amount can be awarded, I found the circumstances in this case to be very different from those in Anderson and although the sum of £200 was awarded then, the case was heard in 1984 and stemmed from a defamatory act in 1979. How the courts deal with damages claims in general has changed significantly since that time. I would also refer to Lord McDonald's comments

"This is a unique case and I received no help from the decided cases on damages cited to me."

[74]   Because of the paucity of defamation cases and the wide divergence in circumstances, I have found likewise that it is very difficult to get any assistance from the authorities.

[75]   Reference was made by the pursuer to the case of Winter v. News Scotland Limited 1991 SLT 828. Again, I found little assistance from this case. It related to a prison officer who raised an action of damages against a newspaper publisher which had printed an article suggesting that she had committed an act of sexual intercourse with a prisoner. It came before a civil jury and was appealed on the amount awarded. The very fact that the case related to publication in a newspaper of what could only be an extraordinarily serious allegation in terms of the pursuer's occupation sets it aside from the current case quite dramatically. The conclusion in the Winter case was that while the award made by the jury was much larger than the extra division hearing the appeal would have awarded, they could not take the view that the jury's award was excessive or one which a reasonable jury could not make. Given the whole circumstances of that case I have found it to be of little real assistance to me.

[76]   Reference was also made to the case of Baigent and others v. The British Broadcasting Corporation 2001 SC 281. This was an appeal to an extra division of the Court of Session from the Outer House where a temporary judge awarded damages. At first sight it seems to have more in common with the current case in that it relates to a nursing home. However the similarities end there. It concerned the broadcast of the television programme concerning the way the home was run and serious allegations made by two ex-employees were broadcast which were very critical. The pursuer's solicitor submitted that in that case the allegation itself was less serious than in the present case which, in my view, is clearly incorrect. At paragraph 19 their Lordships state:

"The extent of the damage..... can be summarised as follows:-

1. That the pursuers were operating a callous and uncaring regime. 2. That the pursuers obliged nursing staff to carry out their duties in an unhygienic and degrading manner. 3. That the pursuers had insufficient staff to care for the patients...4. That the pursuers operated with insufficient staff to supervise patients and therefore put their health at risk."

It is unclear to me how it could possibly be felt that these allegations were less serious than the allegation that the pursuer had apparently carried out one brief assault. What can be taken from that case, however, are the comments from their Lordships at paragraph 22:-

"Fourthly we will observe that we do not find in cases of defamation comparison with awards made in cases of personal injuries particularly helpful or useful ........ every case of defamation is unique in respect of both the content of the slander and its effect upon the victims and it therefore follows in our view that even comparison with other decided cases in that area is of very limited value."

[77]   The pursuer made it clear in her evidence, and this was repeated in the submissions made on her behalf, that the recovery of damages was not her primary aim in pursuing the litigation. That said, it is the only way that someone who has been defamed can be compensated by the court.

[78]   It is clear from the authorities that the court has a very wide discretion and has to adopt a very broad approach in trying to assess a suitable level of damages.

[79]   For all of the reasons given above, and taking a broad approach, having regard to the effect on the pursuer, the fact that she has chosen a career in the care industry, the means of dissemination of the allegation (namely not by widespread publication in a newspaper or by broadcasting a television programme but by direct verbal communication to a very small number of people), I have come to the view that an appropriate award would be £5,000 which is the figure I have awarded. I have also found the pursuer entitled to interest thereon at the rate of 8% per annum from 23^rd April 2009 until payment in accordance with the first crave of the initial writ.