Scottish Sheriff Court Decisions

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT DUNFERMLINE

 

Case No:A218/11   JUDGMENT   of   SHERIFF K.J. McGOWAN   In the cause   GEORGE COWAN   Pursuer   against   MARK BENNETT   Defender __________

 

Act: Basten, Solicitor; Alt: McPhate, Solicitor

 

 

Dunfermline, 5th November 2012

 

The sheriff, having resumed consideration of the cause, repels the pleas-in-law for the pursuer; sustains the second plea-in-law for the defender; and absolves the pursuer from the first crave of the writ.

 

_______________________

Sheriff

 

 

 

 

 

 

Note

Introduction

[1]     In this case, the pursuer seeks an award of damages on the grounds of his having been defamed by the defender. The defender denies defamation.

[2]     I heard evidence and submissions on 23 August, 5 September and 3 October, all 2012 from thirteen witness, namely: the pursuer; David Colman, Paul Young, Jonathon Matheson-Dear, John Yorkston, Brian Miller, Ron Shepherd, Hendrick John, JP, and Graham Primrose, all former members, along with the pursuer and defender of the LBD Business Club; Charles Lawrie, a friend (or former friend) of the pursuer and defender; the defender; his wife, Mrs Lindsay Bennett; and Jenny McFarland, an employee of the defender. I was also referred to some documentary productions.

[3]     In the course of submissions, I was referred to the following authorities: RAH v MH [2012] CSOH 126; Munro v Brown [2011] CSOH 117; McLeod v Newsquest (Sunday Herald) Ltd 2007 Rep.L.R.5 and Prophit v British Broadcasting Corporation 1997 SLT 745.

[4]     Having heard the evidence and submissions, I found the following facts to be admitted or proved.

Findings in Fact

[5]     The pursuer carries on business as a painter and decorator. The defender carries on business as a designer and printer. The parties have known each other for some years and were formerly on friendly terms.

[6]     The defender has an outgoing personality with a background in the music business, musical theatre and stand-up comedy. He is gregarious and outspoken. He enjoys "banter" and verbal jokes with people he meets.

[7]     The pursuer is a more reserved person. He has a sense of humour and is prepared to enter into banter in private or in smaller groups of people he knows. He is not comfortable presenting himself to, or speaking in, larger groups of other people.

[8]     The pursuer is heterosexual. The defender knows this.

[9]     Up until about 2010, the pursuer used the defender as his stationery supplier. In about 2009, the wife of a friend of the defender asked the defender to print some pink business cards for her husband as a joke. The defender decided to play a joke on the pursuer by printing about 20 cards out of a batch of 100 ordered by the pursuer in pink rather than grey. This meant that in a box of 100 cards every fifth card or so was pink rather than grey. This set of cards was delivered to or collected by the pursuer who was aware of the existence of the pink cards and subsequently joked with the defender about them. The pursuer never made any complaint about the cards until the matter was referred to in a letter sent to the defender on the pursuer's behalf by his solicitor in March 2011.

[10]  In about 2009, the pursuer was invited to join a business network called LBD. The defender is one of the founders and leading lights of LBD.

[11]  This type of network operates through regular, weekly meetings of business people from different sectors. The principle underlying it is that by attending the meetings, members create business opportunities for themselves and others within the group by means of mutual referrals. The membership of LBD was initially small, there being about twelve members, including the parties and several other persons. Over time, it grew and at its peak had a membership of about 30 - 40.

[12]  The meetings followed a fixed structure. Members met at about 6.30am for an informal chat over coffee and introductions to any guests. The meeting then commenced with each member making 60 second presentations, briefly outlining their respective businesses and any other relevant information. In rotation, one member per week gave a more in-depth presentation about themselves and their business lasting about 10 minutes.

[13]  During the course of the meetings, there were opportunities for members to distribute business cards which were displayed at the entrance to the meeting room and to make and receive referrals of specific pieces of business.

[14]  The membership of LBD was diverse, including tradesmen and professionals from a variety of business backgrounds.

[15]  Throughout the pursuer's period of membership of LBD, the defender regularly introduced or referred to the pursuer as the "gay painter" during the weekly meetings. This phrase was used by the defender about the pursuer at various times in the meetings, including (i) the informal period between arrival at 6:30am and the commencement of the meeting itself at 7 am (ii) when the pursuer was being invited to do his 60 second presentation and (iii) during the section of the meeting devoted to exchanges of referrals. The pursuer was also introduced by the defender to visitors to LBD meetings whom he did not know as "the gay painter".

[16]  On other occasions at LBD meetings, the defender made or directed the following remarks about or to the pursuer:

(i)    "gay couple";

(ii)   if the pursuer and another member were absent from the meeting, the defender would suggest that they were together;

(iii) "you need to watch"

(iv)  "George (the pursuer) and his boyfriend" and

(v)   "His (the pursuer's) boyfriend Paul".

[17]  The defender also "wolf-whistled" when the pursuer was introduced for or doing his 60 second presentation.

[18]  When making these remarks (above) to or about the pursuer at the LBD meetings, the defender put on an exaggerated "camp" gait and altered the tone of his voice to a higher pitch. The defender's behaviour was highly exaggerated.

[19]  The defender behaved in this way towards the pursuer at LBD meetings regularly over a lengthy period of time. The pursuer did not enjoy this attention and was embarrassed and upset by it.

[20]  Other members of LBD who witnessed this behaviour recognised it as a caricature but found it tiresome and unprofessional.

[21]  None of the members of LBD were led to believe by the defender's conduct that the pursuer was homosexual.

[22]  In due course, the pursuer sought legal advice and on 3 March 2011, a letter was sent on his behalf to the defender (i) calling upon him to refrain from such further conduct and to compensate the pursuer to the extent of £10,000.00 and (ii) threatening court proceedings: No. 5/4 of Process. The defender in turn took legal advice and, shortly thereafter, expelled the pursuer from LBD.

[23]  A week or two later, the pursuer received a telephone call from a lady who runs a van selling snacks ("the roll van") locally to say that she had discovered some of the pursuer's business cards which were displayed there and which had been defaced with abusive comments.

[24]  The pursuer collected these cards. There were some 13 of them. Handwritten on the back of the cards in black ink were various abusive terms: No. 5/1 of Process. In particular, there were four cards which had, respectively, the following handwritten words on the back:

(i)    "shags schoolgirl" (sic);

(ii)   "keep him away fae your kids";

(iii) "wanks over schoolgirls"; and

(iv)  "love to paint school".

[25]  The pursuer believed that the words on the cards had been written by the defender.

[26]  The initial writ in the present action was warranted on 2 December 2011. In terms of the defences lodged on 30 January 2012, the defender denied being responsible for the defaced business cards.

[27]  Charles Lawrie is a painter and decorator. He has known the pursuer for about 16 years and regarded the pursuer as a good friend. Mr Lawrie also knows the defender as a tenant of a person that he (Mr Lawrie) does work for and as his (Mr Lawrie's) stationery supplier.

[28]  Mr Lawrie became aware of the dispute between the pursuer and the defender. He knew that part of the dispute concerned defaced business cards.

[29]  In about late 2011 or early 2012, Mr Lawrie had a trainee called Liam, who had been placed with him through Fife Enterprise. Mr Lawrie was dissatisfied with a number of aspects of Liam's work and behaviour and dismissed him.

[30]  In about March or April 2012, Mr Lawrie was at the roll van and heard a rumour in passing that Liam had been responsible for defacing the pursuer's business cards. At the time, Mr Lawrie thought that the rumour was true.

[31]  A short time later, he was doing some work near the defender's business premises. He saw the defender and spoke to him about what had happened. Mr Lawrie gave the impression to the defender that he knew that Liam was the culprit and that he had dismissed him for having defaced the cards.

[32]  The defender asked if Mr Lawrie would be prepared to confirm in writing what he had said. He agreed to do so. The defender took him into the office and Mr Lawrie repeated what he had said to the defender in the presence of the defender and Mrs Bennett. She typed up a letter which she believed reflected what she had been told. She checked the terms of it with Mr Lawrie and he willingly signed it: No. 6/1 of Process.

[33]  At some stage between 20 April 2012 and 16 May 2012, the defender's defences were adjusted to reflect the information provided by Mr Lawrie: Nos. 9 and 10 of Process. The defences were subsequently amended to identify Liam by name: No. 11 of Process.

Submissions for parties

[34]  It was common ground that there were two distinct phases to be considered, namely (i) the defender's conduct towards the pursuer at the LBD meetings (including the pink business cards which the pursuer asserted had been distributed by the defender at these meetings); and (ii) the defaced business cards found at the roll van.

Events at LBD meetings

[35]  Mr Basten's position was that the defender's conduct towards the pursuer at the LBD meetings - particularly by referring to him as "the gay painter" - imputed (i.e. in the sense of attributing a characteristic) that he was homosexual. That was untrue, as the defender knew. Although accepting that an imputation of homosexuality was not of itself defamatory, Mr Basten contended that in the particular circumstances of this case, it was defamatory because it lowered the pursuer's reputation in the eyes of other members (e.g. Mr Yorkston, Mr Matheson-Dear) and, as a matter of probability it would have lowered his reputation in the eyes of any guests at the LBD meetings who had not met him hitherto.

[36]  Even if what the defender was doing could be said to be "a joke" that was no defence to a claim of defamation: Prophit v BBC.

[37]  On behalf of the defender, Mr McPhate contended that the defender's conduct towards the pursuer at the LBD meetings could not amount to defamation. First, the evidence plainly showed that the defender was acting in an outrageously "camp" manner. There was ample evidence of that. No third party witnessing the defender's use of the words "the gay painter" in the context of the defender's behaviour could have believed that the defender was seriously saying that the pursuer was actually homosexual. None of the witnesses said that they had been led to believe that. Second, even if the words spoken were not self-evidently a joke, the imputation of homosexuality was not defamatory. The circumstances of Prophit v BBC were very special. Society had moved on. It could not be suggested that an imputation of homosexuality would damage a person's reputation in the minds of right thinking people.

The defaced business cards

[38]  Mr Basten submitted that the statements on certain of the defaced cards imputed that the pursuer was a paedophile and that that was plainly defamatory. He accepted that the pursuer could not prove definitively that it was the defender who had distributed the defaced cards. It was, he said, a question of looking at the evidence as a whole.

[39]  The defender had said in evidence that he thought the letter sent to him on the pursuer's behalf by Mr Basten was a joke, yet he had summarily ejected the pursuer -whom he described as a close friend - from LBD. He knew that that would damage the pursuer. The truth was that the defender had been angry.

[40]  The pursuer had explained in evidence that he had originally used the defender as his printer but had switched suppliers to Minuteman Press. The cards that had been left at the roll van were old cards of the style printed by the defender. The new style of cards had more information on them.

[41]  So the question arose - who else would have had access to cards in the quantity found at the roll van? It was a reasonable inference that that had to be either the pursuer or the defender.

[42]  The writing on the cards was in capitals and there was evidence that the defender wrote in capitals.

[43]  There was also the question of the circumstances in which the defender sought to blame a third party (Liam) for the defaced cards. If it was the defender's position that he had not distributed the defaced cards, then why not just say that? Instead, the defender had advanced the position that Charles Lawrie spoke to him about the cards and that he obtained information from Mr Lawrie that a third party was responsible for defacing the cards.

[44]  It had transpired that the letter dated 5^th April 2012 and presented to the Court as evidence was written by the pursuer's wife. Any prudent person would have made further enquiries into what Mr Lawrie had said before presenting such evidence. The defender's evidence about how the letter got into the hands of Mr McPhate was incredible.

[45]  It was also incredible that having identified the person said to be responsible, no attempt was made to bring him to court. Nor had the defender taken steps to cite Mr Lawrie who had been cited by the pursuer and did eventually appear.

[46]  The inference was that the defender had been looking for a line of defence to the claim which he could run, but then became concerned that the truth would come out about the circumstances in which the letter of 5^th April came to be written.

[47]  Mr Lawrie was an evasive and dishonest witness. He had said that Mrs Bennett had "knocked the letter up" and he had signed it.

[48]  The absence of any evidence of any enquiry by the defender into what he says Mr Lawrie told him pointed to a conspiracy.

[49]  Mr Lawrie knew that the letter was a lie. Why would the pursuer come to court and make up evidence about the defender having applied pressure to Mr Lawrie? The defender did not just say "I didn't do this". If he had decided to depart from the positive line of evidence that Mr Lawrie's former employee Liam had written the offending words on the business cards found at the roll van, he could have deleted the relevant averments. The defender himself contradicted that defence by saying that he did not now believe it to be true.

[50]  The defender's position was not credible. The only possible inference was that the statement had been prepared by the defender's wife following upon the defender meeting with Mr Lawrie for the express purpose of getting him to sign a statement blaming Liam and thereby exculpating the defender.

[51]  The defender's evidence about this whole episode had been evasive.

[52]  It was accepted that the pursuer needed to prove that the defaced cards came from the defender. But the timing; the type of cards which were defaced; the fact that the pursuer had been kicked out of LBD; the circumstances surrounding the letter signed by Mr Lawrie; and the evidence that the defender wrote in capitals, taken together, justified that conclusion.

[53]  There was no other possible explanation - there was strong and compelling evidence to support the pursuer's position.

[54]  In reply, Mr McPhate submitted that the onus of proof was on the pursuer. The pursuer's own evidence was that some of the capitals looked like capitals the defender would use. But there was no direct comparison with a sample of the defender's handwriting and no expert evidence. So the pursuer's own evidence was of little value.

[55]  So far as timing was concerned, the pursuer relied on the cards coming to his notice a short time after his membership of LBD was terminated. He had assumed that the defender was responsible for the defaced cards and the action had been raised on the basis of that assumption.

[56]  So far as the type of cards was concerned, the pursuer says that they were distributed at a time when he was not using the defender as his print supplier. But we had no way of knowing whether the cards were written on before they got to the roll van or at the roll van.

[57]  The pursuer's evidence about what cards were put at the roll van and when was very unclear - but his clearest statement was that "the cards printed by the defender were the only cards I put at the van and I never put new cards there".

[58]  In any event, there was evidence that a variety of business cards, including the pursuer's, were openly displayed at the roll van. Anybody who passed the van had access to the cards.

[59]  The phrases on the cards were not ones which the defender, who was from London, would use.

[60]  The implication of the defaced cards (paedophilia) was completely different to the implication relied on in the first leg of the pursuer's case (homosexuality). The defaced cards did not contain the word "gay". There was no evidence at all that these cards were seen by any third party.

[61]  So far as Mr Lawrie was concerned, it would not have been in the defender's interests to advance a line of defence when he was not sure of it.

[62]  Mr Lawrie did not say in evidence that he had told the defender and his wife that he did not understand some of the words in the letter. Both the defender and Mrs Bennett had proceeded on the basis that it reflected what he had told them. He had signed it. They were entitled to reach that conclusion.

[63]  Mrs Bennett had been aware that Mr Lawrie said that he did not want to come to court, but there was no evidence about him having been cited and then seeking to withdraw his statement. The citation appears to have arisen from his withdrawal of his statement, not the other way round.

[64]  The defender had not sought to put Mr Lawrie's testimony into evidence - so the fact that Mr Lawrie now did not think that Liam was responsible did not rebound on the defender.

[65]  Mr Lawrie denied pressure from the defender. The only evidence about that was the pursuer's testimony that Mr Lawrie had told him that he (Lawrie) would not get work. But that proposition was not put to Mr Lawrie in evidence.

[66]  Perhaps the defender had clutched at the information provided by Mr Lawrie, but he was entitled to do so.

[67]  Looking at the totality of the evidence, it did not support the finding that the defender had defaced the business cards.

Quantum

[68]  Mr Basten submitted that the cases of RAH v MH and Munro v Brown might be of assistance. If both legs of the case succeeded, an award of £10,000 would be appropriate. A possible result was that one leg of the case might succeed and one might fail. The leg of the case concerning the defaced business cards was the more serious of the two.

[69]  Mr McPhate submitted that RAH v MH could be distinguished. It was a considerably more serious case involving the publication of nearly 100 handbills containing a very serious allegation. In the present case, the level of distribution of the defaced business cards was uncertain and the number of documents was very much smaller. If only the leg of the case concerning statements at LBD succeeded, any award of damages would be lower still.

Grounds of decision

Events at LBD meetings

The pink business cards

[70]  The relevant averments about this part of the case (Condescendence 3) are not very clear but in evidence the defender admitted printing a set of about 100 business cards for the pursuer in about 2009 of which about one in five were printed pink rather than grey.

[71]  In his evidence, the pursuer denied that he had ordered the pink cards or that they had been printed in his presence or with his knowledge. His evidence in chief about their alleged appearance at LBD meetings was in very narrow compass. He simply said that the defender had produced pink cards at the LBD meetings. He did not say when or how often this happened or how many cards were produced.

[72]  Later in his evidence he said: "I walked into the meeting. They (the pink cards) were distributed round tables. The defender puts the cards out." The pursuer then said: "Each person puts their own cards there."

[73]  I was left in some doubt as to what to make of this evidence. The defender denied distributing pink cards at LBD meetings. His position was that the printing of them had been a one-off joke and that they had been given to the defender who was aware of them and thought it was funny. There was some evidence supporting the latter point from Ron Shepherd who said that on one occasion he was in the defender's office and the pursuer was there and made retrospective reference to the pink cards. Mr Shepherd's impression was that the discussion about the cards was a friendly exchange between the pursuer and the defender.

[74]  If it is correct that the only set of pink cards printed was given to the pursuer, then it follows that he must have taken them to the LBD meeting.

[75]  The crucial issue is of course whether they were distributed and if so by whom. The only other evidence in support of the pursuer's position came from Paul Young, but all he said was "I did see pink business cards". He did not say when or where. None of the other witnesses who had been at LBD meetings had seen the cards, though some said they were "aware" of them.

[76]  As far as this issue is concerned, the evidential burden of proof is on the pursuer to prove the averment. Looking at the whole of the evidence, the pursuer's evidence was very limited and the only support came from Paul Young whose evidence was even more inspecific. I was inclined to believe the defender's denial, especially since no other witness spoke to seeing pink cards at LBD meetings. Accordingly, I do not find it proved that the defender did distribute pink business cards with the pursuer's details on them at LBD meetings. It follows that that allegation cannot form part of the pursuer's defamation case.

The defender's comments at LBD meetings

[77]  A statement is defamatory if it would tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally: Gillick v British Broadcasting Corporation 1996 EMLR 267 page at pp272-273. (The statement also needs to be false. It is not disputed in the present case that the pursuer is not homosexual.)

[78]  In my view, there are three matters which fall to be determined in relation to this leg of the case.

(i)    First, what were the words used about the pursuer ("the words complained of")?

(ii)   Second, what do the words complained of mean?

(iii) Third, did the meaning imputed by the words complained of lower the pursuer in the estimation of right-thinking members of society generally or was that meaning likely to affect a person adversely in the estimation of reasonable people generally?

[79]  I will examine these issues in turn.

What are the words complained of?

[80]  I observe that the averments as to what is alleged to have been said are as follows both sparse and inspecific. They are:

(i) "(The defender") would make references about the pursuer being homosexual."

 

(ii) "He would use words such as 'bum chum' when referring to the pursuer."

 

(iii)   "On one occasion the defender introduced the pursuer to a businessman who was attending one of the (LBD) meetings by stating 'keep your arse to the wall, that's the gay painter'. He also made a hand signal suggesting the pursuer was homosexual."

 

[81]  During his submissions, I did not understand Mr Basten to suggest that (i) was an averment that the defender had actually used the word "homosexual" about the pursuer. (There was no evidence that he did). Instead, I took this to be an encapsulation of the proposition that the defender had used words which imputed the idea that the pursuer was homosexual. There was no evidence to support averments (ii) and (iii). Therefore, they are not proved.

[82]  Nevertheless, the defender admits on Record that he referred to the pursuer as "the gay painter" and also gave evidence to that effect, as did a number of other witnesses. Accordingly, I hold it proved that at LBD meetings, the defender regularly referred to the pursuer as "the gay painter"; and that on occasions he did so in the presence of people who did not know the pursuer who were visitors to LBD meetings.

[83]  Evidence was also led, without objection, of certain other remarks made by the defender, viz:

(i)    The pursuer said that the defender had used the phrase "gay couple", although he was inspecific about whom, when and how often this was said.

(ii)   David Colman said that if pursuer and another member were not at meeting, the defender would suggest that they were together, although he was inspecific about the words used or when and how often this was said.

(iii) Paul Young said that the defender said "you need to watch" in front of whole meeting. Although he did not say so specifically, I took him to be saying that the defender was referring to the pursuer when he did so.

(iv)  In cross examination, Jonathon Matheson-Dear said that the defender referred to the pursuer and Paul Young as "the gay couple" a couple of times.

(v)   John Yorkston said that the defender referred to the pursuer and Paul Young as "the gay boys".

(vi)  Brian Miller (a witness for the defender) said that the defender had used phrases such as "George (the pursuer) and his boyfriend" and "His (the pursuer's) boyfriend Paul". He was inspecific about when or how often these phrases had been used.

[84]  On that basis, I made the findings in fact at I refer here to paragraphs [14] and [15], above.

What do the words complained of mean?

[85]  The word "gay" is a widely accepted and understood colloquialism for "homosexual". Thus, it involves no leap of imagination to conclude that, when taken literally, the phrases "gay painter" and "gay couple" (paragraphs [14] and {15]i), amount to the defender saying that the pursuer was homosexual. The other phrases are less amenable to literal interpretation, but I am prepared to accept that, on the face of it, they would be taken to imply the same thing.

[86]  But in my view, that is not the end of the matter. Words can change meaning according to context.

[87]  In the case of written material, such as a newspaper article, it is settled law that the article complained of must be read as a whole. It is not permissible to 'cherry pick' an eye catching headline with photographs to found a claim for defamation where the text taken as a whole is not defamatory: Charleston v Newsgroup Newspapers 1995 2 AC 65 at 72-73.

[88]  Further guidance on how to approach an issue of this sort can be found in Gillick v British Broadcasting Corporation at pp272-273, a passage cited with approval in McLeod v News Quest (Sunday Harold) Limited. That guidance is in the following terms:-

"(1) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable viewer watching the programme once.

(2) The hypothetical reasonable reader (or viewer) is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(3) While limiting its attention to what the defendant has actually said or written the court should be cautious of an over-elaborate analysis of the material in issue.

(4) A television audience would not give the programme the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.

(5) In deciding what impression the material complained of would have been likely to have on the hypothetical reasonable viewer the court are entitled (if not bound) to have regard to the impression it made on them.

(6) The court should not be too literal in its approach...".

 

[89]  That guidance is directed at material publicised by way of a television broadcast, but in my view, the principle is valid whatever the medium of publication.

[90]  Adapting the guidance set out above for a case such as the present one where the statements complained of were oral and witnessed 'live', I have taken the following approach:

(i) The court should give to the material complained of the natural and ordinary meaning which it would have conveyed to the ordinary reasonable listener overhearing the words complained of.

(ii)     The hypothetical reasonable listener is not naive but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking. But he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available.

(iii)   While limiting its attention to what the defender has actually said, the court should be cautious of an over-elaborate analysis of the material in issue.

(iv)   A listener would not give the words uttered the analytical attention of a lawyer to the meaning of a document, an auditor to the interpretation of accounts, or an academic to the content of a learned article.

(v)     In deciding what impression the words complained of would have been likely to have on the hypothetical reasonable listener, the court is entitled (if not bound) to have regard to the impression it made on it.

(vi)   The court should not be too literal in its approach.

[91]  Taking these points together, I consider that it is necessary to look at the words spoken as a whole and in their context in order to determine whether they capable of being defamatory. In my view, this exercise includes a consideration of the demeanour of the speaker of the words complained of at the time they were uttered.

[92]  In his evidence in chief, the pursuer said that when he stood up to do his for 60 second presentation, the defender wolf-whistled; that during the part of the meeting devoted to the exchange of referrals, the defender had "walked up to me in a gayish way and put on a funny voice". The pursuer agreed that the defender's behaviour was a "gay caricature".

[93]  David Colman said in evidence in chief that if the defender was picking up business referral slips (from the pursuer) he "walked in an effeminate way - it was a caricature." In cross examination he said that any time the pursuer was mentioned, the defender would talk in an effeminate way or put on a walk which was a caricature. He did not think that somebody who was gay would act like that. He agreed that "camping it up" would describe the defender's behaviour.

[94]  Paul Young agreed that the defender's comments were "exaggerated". He did not think the pursuer was gay.

[95]  Jonathon Matheson-Dear said in evidence in chief that at the point of the meeting when business referral slips were being passed over, the defender tended to "do a silly walk - an effeminate walk and a silly voice". In cross examination, he said that the defender's tone was sneering and the remarks made with derision. It was not done in a humorous way, but "not done in a serious way". He agreed that the defender was camping it up and that his behaviour was a "music hall interpretation" of how a homosexual person might act.

[96]  John Yorkston said that every time the pursuer was called upon to do his 60 second presentation, it was followed by the defender doing a wolf-whistle or a comment about him being gay and that "it could be banter the first time but because it went on, I didn't see it as that." In cross examination, he said that the first time comments were made it was light-hearted, if in bad taste. It was both persistence and lack of taste which was the problem.

[97]  Brian Miller said that the defender made light hearted comments which were humorous or intended to be humorous; there were no serious comments about the pursuer's sexuality; it was meant to be banter; he never took them seriously nor did anybody else that he was aware of. In cross examination, he accepted that the defender used "gay" mannerisms, by way of his tone of voice or accent. He had "camped it up" by making his tone of voice higher.

[98]  Ron Shepherd said that the pursuer was referred to as the gay painter in a frivolous way; that the defender behaved in a camp way - his voice and his "walk" (gait). The comments tended to be response to unintentional double entendres by others and he took them to be flippant. When asked if he thought presenting people as homosexual is a joke, he said "The listener would realise it was jocular I hope." He agreed that the defender may have said during referrals "Here's one for the gay painter" while making "camp mannerisms".

[99]  The overall tenor of this evidence is that the defender's behaviour was "a caricature"; like something from "a music hall"; that he was "camping it up"; he was putting on a "funny" or "gay" voice; and adopting a "funny" or "gay" walk (gait); and that he was he was using "gay" hand movements. Much of this evidence was elicited from the pursuer's witnesses in examination in chief.

[100]       Although not raised in evidence, I suggested to the Mr Basten during submissions that the impression which had been created in my mind was that of the character portrayed by John Inman in the 1970s BBC sitcom "Are you being served?. Both solicitors were aware of the character I was referring to. Mr Basten agreed that that was indeed how the defender's behaviour might be characterised.

[101]       In MacLeod v Newsquest, the pursuer, a journalist contended that he had been defamed by a newspaper article, whose meaning was that he had made up a news story and that against the background of the obligation on journalists to publish reports that are not false or misleading, such an allegation (i.e. the propensity to make things up) was defamatory as the imputation in the article was capable of lowering the pursuer in the minds of right thinking members of society. The Court held that, looking at the words complained of in their context (an article which was evidently contained a "far fetched and humorous or at least facetious comparison" and had a "light hearted tenor"), no serious charge was being made against the pursuer. The ordinary reasonable reader would realise that the pursuer was being chaffed or teased.

[102]       Applying that approach to the present case, I am satisfied that no reasonable person witnessing the defender's comments to the pursuer at LBD meetings would have formed the view that the defender was seriously suggesting that the pursuer was homosexual.

[103]       The evidence of the third parties who witnessed the defender's utterances and behaviour supports this conclusion. I agree with Mr McPhate that there was no evidence that the defender's characterisation of the pursuer was taken seriously by those who heard it. By this I mean that they did not take from the defender's comments that the pursuer was, in fact, homosexual. Since that is the alleged defamatory meaning relied upon, it follows that the pursuer's case cannot succeed.

[104]       For the avoidance of doubt, this issue does not turn on an evaluation of whether the defender's "joke" was funny or not. Nor is it a question of taste.

[105]       The issue is: did the third parties realise that the defender was "not serious" (even if they thought the "joke" was not funny and/or in poor taste). In short, the third parties think that the defender was seriously imputing that the pursuer was gay i.e. homosexual? In my view, it is clear that they did not.

Is an imputation of homosexuality defamatory?

[106]       Assuming, for the sake of argument that I had found it to be established that the words complained of were capable of being taken to actually mean that the pursuer was homosexual, is such an imputation defamatory? In other words, did the words used, with their assumed imputation of homosexuality on the part of the pursuer tend to lower the plaintiff in the estimation of right-thinking members of society generally, or be likely to affect a person adversely in the estimation of reasonable people generally: Gillick v British Broadcasting Corporation at pp272-273

[107]       This is a question of fact, but it appears to me that an imputation of homosexuality cannot generally be regarded as calculated (i.e. likely) to harm the reputation of a person, save perhaps in very special circumstances. As Mr McPhate put it, times have moved on. Homosexuality is not illegal. On the contrary, the rights of homosexuals are widely protected by the law. There are many people in public life in Scotland and the UK who are openly homosexual. Looked at in that way, it is difficult to see how an imputation of homosexuality could be defamatory. This is not an innovative view: Quilty v Windsor, 1999, SLT 346, cited at Gloag and Henderson, 12^th edition, para. 30.05 and Stair Memorial Encyclopaedia, Obligations, para. 490

[108]       Mr Basten sought assistance from the case of Prophit v BBC. That case is of limited value as it followed on a procedure roll discussion and the pursuer was allowed a proof on the basis that an imputation of homosexuality was damaging to her reputation because of her membership of a particular religious order where homosexuality was frowned upon as sinful. There is no suggestion that the members of the LBD had a collective moral code which frowned on homosexuality. In any event, it is nothing to the point for the pursuer to aver that an idea is disparaging in the section of society in which he moves if it is not also disparaging in the view of society as a whole: Stair Memorial Encyclopaedia, Obligations, paragraph 487.

[109]       What of the actual evidence? One difference between cases concerning spoken and written words is that in the latter it is not usually possible to know what impact the written words had in the minds of the reader. In the present case, there was evidence about the impact of the words spoken in the minds of a number of listeners. It appears to me that that is a factor which I am entitled to take into account in considering whether they were defamatory, but is not determinative of that issue.

[110]       Mr Basten contended that there was evidence that the defender's repeated utterances of "the gay painter" when referring to the pursuer lowered the pursuer's reputation in the eyes of other members of the LBD. In my view, there is a major difficulty with that proposition.

[111]       It must be borne in mind that the defamatory 'sting' contended for by the pursuer is the imputation that he was homosexual. While I agree that there was evidence that the pursuer's reputation was harmed by the way the defender was treating him, none of the witnesses said that that lowering of the pursuer's reputation in their eyes was because they thought - as a result of having heard the defender's utterances - that the pursuer was a homosexual. Thus, there is no link between the imputation complained of and the consequent lowering of the pursuer's reputation. For example, when Mr Matheson-Dear was asked whether he would have felt differently if the defender had repeatedly called the pursuer an "idiot" or a "fool", he replied "No". His concern was that the attendees were at LBD meetings were there to get business, and the defender's behaviour was not consistent with that.

[112]       My impression is that the witnesses called for the pursuer to speak to what they had seen at LBD meetings and what they made of it felt embarrassment on behalf of the pursuer because they thought that he was the butt of a joke which was not funny and had gone on far too long. He was exhibiting signs of discomfort, if not humiliation, at the defender's continued attentions.

[113]       All of these witnesses denied that the pursuer's reputation was damaged in their eyes because of any ascription of homosexuality to him. Some expressed concern that the pursuer's reputation might be damaged in the eyes of "prejudiced third parties". But in my view, that is speculation and I have difficulty seeing how somebody inclined to such a prejudice could be described as a "right thinking member of society": Gillick.

[114]       The overall tenor of the evidence was that the LBD members who were sympathetic to the pursuer thought that he was being presented as unprofessional and not a serious businessman. But even if the defender's conduct towards the pursuer carried the imputation that the pursuer was "not a serious businessman", and that imputation damaged his reputation, the problem remains that that is different from saying that the pursuer's reputation was damaged because he was thought to be homosexual. As already noted, there is no causal link between the defamatory "sting" which the pursuer seeks to prove in this case and the lowering of his reputation. In these circumstances, it appears to me that this aspect of the pursuer's case is fundamentally misconceived and cannot succeed.

Defaced business cards

[115]       It was conceded by Mr McPhate that, on the face of it, four of the cards were defamatory. At the time of hearing the submissions, I was inclined to agree.

[116]       Having considered the matter in the light of the authorities referred to above, I am not sure that that is correct. Although undoubtedly in extremely poor taste and potentially defamatory, the question arises (as it did in relation to the defender's verbal utterances at LBD meetings) whether, on an objective assessment, it can be said that any right thinking member of society having read scribbles on the back of business cards, which have evidently made by some malicious third party, would have taken from them that it was seriously being imputed that the pursuer was a paedophile. In my view, the much more likely reaction of any person would be to regard it as being a "joke" [as in, not a serious suggestion] - albeit in extremely poor taste - and disregard it altogether.

[117]       Accordingly, had it been necessary for me to decide the point, I would have held that the defaced business cards were not defamatory.

[118]       Be that as it may, the question here is whether the pursuer has proved that the defender was responsible for the words complained of being written on the back of the business card and distributed at the roll van.

Discussion

[119]       There was no positive evidence led on behalf of the defender to support the line of defence that Liam was responsible for defacing the cards. So that can simply be put on one side.

[120]       The issue which remains is whether it is proved that it was the defender who was responsible. The onus of proof in that respect lies on the pursuer. The standard of proof is balance of probabilities. The evidence is circumstantial. So the question is - does the evidence as a whole satisfy me that it is more likely than not that the defender was responsible for defacing and distributing the business cards at the roll van?

[121]       The letter signed by Mr Lawrie forms part of that circumstantial picture. In particular, what are the circumstances in which it came to be written and signed? Mr Basten submitted that it was evidence of a conspiracy among the defender, Mrs Bennett and Mr Lawrie to fabricate a line of defence. If that is so, the letter would take on a sinister character and go to the circumstantial case.

[122]       In my view, there are a number of difficulties with that proposition.

[123]       First, Mr Basten asked rhetorically why the defender had not just put forward a (negative) defence that he was not responsible, rather than a (positive) defence that Liam was responsible, which was later not insisted in. But I observe that the defences contain no hint of the so-called positive defence. The timing of the introduction of that positive line of defence is consistent with the letter coming into existence in April 2012.

[124]       Second, if the defender was to choose a co-conspirator, his choice was a strange one, given Mr Lawrie's long standing friendship with the pursuer.

[125]       Third, although Mr Lawrie was plainly a reluctant witness, I formed the impression that he was reluctant to be in court at all. I did not form the impression that he was biased.

[126]       Fourth, his evidence about the circumstances in which the letter came into existence was consistent with that of the defender and Mrs Bennett. I had reservations about parts of the defender's evidence which were flippant and dismissive at times, but on this issue, I believed him. I had no reservations about Mrs Bennett's evidence. I found her to be credible and reliable. She was called as a witness by the pursuer.

[127]       The substance of the evidence from these three witnesses was that Mr Lawrie heard (a rumour) that Liam was responsible; he believed it was true; he mentioned to the defender that he thought Liam had written on the cards; the defender asked him to put it in writing and the letter was "knocked up" by Mrs Bennett who was present in the office.

[128]       Fifth, Mr Lawrie denied being asked by the defender to provide an explanation for the cards. It was he who mentioned them to the defender, not the other way round.

[129]       Accordingly, on this issue, I reject the conclusion that the evidence points to a conspiracy. I accept that Mr Lawrie heard a rumour that Liam was responsible for defacing the cards which he believed at the time and that he passed on that information in good faith. Quite why he claimed to have "sacked the culprit" is not clear. Perhaps it was to ingratiate himself with the defender. It is also not clear why he then sought to distance himself from the letter he had signed. Perhaps it was because he realised he had put himself in the middle of a court case between two people he knew. But ultimately, whatever was going on in Mr Lawrie's head, I accepted his evidence and that of the defender and Mrs Bennett as to the circumstances in which the letter came into existence.

[130]       Turning to the other evidence, while the timing of the coming into existence of the letter might be thought to assist the pursuer, the world is full of coincidences and a coincidence of timing on its own proves nothing.

[131]       The pursuer's evidence was that the style of cards found at the roll van was the old style printed by the defender. But there was no direct evidence to suggest that they had been placed there by the defender or on his instructions. The pursuer's evidence in chief about the circumstances which he said gave rise to an inference that the defender was responsible for the defaced cards being displayed at the roll van was very limited - and to some extent confusing. He initially said that the defender had put "grey and pink" cards at the van. He described the defaced cards as being the old style printed by the defender which he no longer distributed. He agreed that anyone else who distributed these cards would have had to have access to a significant number of them and that only he and the defender had such access. He had got a call from the roll van lady about one or two weeks after he got the letter terminating his membership of LBD.

[132]       In cross examination, the pursuer said that he was not aware of the defaced cards before he left LBD. He was then asked when he had last put cards into the display pockets at the roll van. In response, he said "I had just started. A couple of months." He gave no specific date to which the "couple of months" referred but my impression was that he meant that he had started to put cards at the roll van a couple of months before he left LBD. He then said that he had put cards at the van twice but he was not sure when the re-filling was done (my emphasis). He was asked if it could have been before he left LBD and said "No". He confirmed that he had only left LBD about a week before the cards were drawn to his attention and that in the period of one (or perhaps two) week(s) between being told to leave LBD and having the cards drawn to his attention, he was not at the roll van to put cards there. He said that when he got the new cards printed, he stopped using the older cards that had been printed by the defender. He denied that the abusive remarks could have been written on cards he put at the roll van. In re-examination, the pursuer was specifically asked whether he had put any "old" cards at the roll van, He replied: "The cards from the defender are the only cards I put at the van. After this all happened, I haven't put any new cards there." Although there was an attempt to recover this later, the result at best for the pursuer is that his evidence was confused and contradictory and at worst positively proved that he had put old style cards printed by the defender at the roll van.

[133]       I agree with Mr McPhate that the phraseology used does have a Scottish rather than flavour (e.g. "fae") and that the evidence as to the identity of the handwriting is of little value. The offending words do not suggest homosexuality but rather paedophilia against girls.

[134]       Looking at the overall quality, weight and effect of the evidence, I am quite unable to conclude that it is more likely than not that the defender was responsible for distributing the defaced cards at the roll van. That not being proved, this leg of the case against the defender must fail also.

Quantum

[135]       Mr Basten did not seek to insist on the argument that the pursuer was entitled to recover pecuniary losses. In my view, that was the correct course to take. The evidence about loss of business flowing from alleged loss of reputation fell well short of the type of material which would have justified making such an award. Put shortly, there was no specific evidence of actual loss of income far less anything establishing a link between such losses and any damage to reputation brought about by defamatory statements. If I had been invited to award damages for pecuniary losses, I would have declined to do so.

[136]       If one or other or both legs of the pursuer's case had succeeded, he would have been entitled to solatium for injury to feelings and loss of reputation.

[137]       The defender's conduct at the LBD meetings was witnessed by an "audience" and was persisted in. The defender spoke of feeling humiliated and bullied. There was some loss of reputation. If I had found for the pursuer on this leg of his case only, I would have found him entitled to £3000.

[138]       On the face of it, the defaced business cards contained more damaging allegations, but there was no evidence that his reputation had been damaged by their distribution. So far as injury to feelings is concerned, the pursuer's evidence was (again) unclear. There was a passage in his evidence when he was asked series of questions about the pink cards. He then said that the defender had distributed cards at the roll van and that he had not asked the defender to produce or distribute "these cards". He said that when he found out, he was shocked and embarrassed and that he started to stay away from the defender at LBD meetings.

[139]       It is difficult to follow that passage of evidence, which appears to suggest that the pursuer's complaint was that the defender had distributed pink cards at the roll van. Whatever it was meant to signify, it is insufficient to support an award of injury to feelings in respect of the defaced cards. As the pursuer has not proved anything very much in relation to the defaced cards, any damages would have been restricted to a nominal award if that part of the case had been successful.

Disposal

[140]       I have concluded, as a matter of fact and law that the pursuer has not proved that he was defamed by the defender. I shall give effect to that by repelling the pursuer's pleas in law, sustaining the defender's second plea-in-law; absolving the pursuer from the first crave of the writ and putting the matter out for a hearing on expenses.

Footnote

[141]       The pursuer has lost this case. Nevertheless, the defender does not come out of this dispute smelling of roses. The impression given by the defender in evidence was that he was a joker, full of joie de vivre.

[142]       Yet it is clear that the pursuer and a number of other members of LBD were deeply uncomfortable with the defender's behaviour. One is driven to the conclusion that either (i) the defender was aware of this discomfort, yet deliberately persisted with the "banter" in the face of it or (ii) that he was unaware of it, which says little for his awareness of the impact of his actions on those around him and suggests that he badly misread the situation. In my opinion, he must bear some responsibility for the destruction of what had, apparently, been a good and friendly relationship.

[143]       That, and the consequences of this litigation, are deeply regrettable.

_______________________

Sheriff