Scottish Sheriff Court Decisions

2014 SCDUM 33

SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT DUMFRIES

SUMMARY APPLICATION UNDER THE LAWBURROWS ACTS 1429 AND 1581 AND SECTION 6 OF THE CIVIL IMPRISONMENT (SCOTLAND) ACT 1882

CASE    Ref. No.: B56/11

NOTE

by

SHERIFF GEORGE JAMIESON

in causa

                                                     JAMES DUFF

PURSUER

against

  PATRICK SHEARER, Chief Constable, Dumfries and Galloway Constabulary, Police

                             Headquarters, Cornwall Mount, Annan Road, Dumfries

DEFENDER

DUMFRIES:       APRIL 2011  

The Sheriff, having resumed consideration of the Summary Application, Sustains the Defender’s plea to the relevancy of the Pursuer’s application for lawburrows; Dismisses the application for lawburrows as irrelevant; Refuses as unnecessary the defender’s motion to dismiss or sist the action on the ground of lis alibi pendens; Finds the Pursuer liable to the Defender in the expenses arising in respect of the summary application in terms of Section 6(3) of the Civil Imprisonment (Scotland) Act 1882 as taxed; Directs those expenses to be modified by being reduced by 10% ; Certifies the cause as suitable for employment of Junior Counsel by the Defender; Allows the Defender to put in an Account of Expenses; Remits to the Auditor to tax those expenses and to report on that taxation.

Sheriff George Jamieson

NOTE:

INTRODUCTION

• [1]This is the third of three applications by the pursuer for lawburrows against the Chief Constable of Dumfries and Galloway. The first was heard by Sheriff Smith and was dismissed as irrelevant by him after debate on. The pursuer’s appeal to the High Court of Justiciary was refused as incompetent but in its judgment the High Court expressed obiter views agreeing with the sheriff that the application was irrelevant: see Duff v Strang 2008 JC 251.
• [2]The pursuer then altered certain of his pleadings for his second application B131/10, most notably by claiming fear of harm through defamation for which the defender was said to be responsible. This application was debated before me at a hearing on relevancy and competency on 29 April 2010. My first Note in that case was dated 10 May 2010.I put the case out for further debate in relation to the question whether the process of lawburrows was limited to violent acts, or as averred by the Pursuer, extended to harm by means of defamation. I heard further debate on 24 June 2010.The Pursuer represented himself at that debate.The Defender was represented by Mr Dunlop, Advocate.There follows a copy of my Note No.2 of 5 August 2010 arising from that debate excluding my comments on certain preliminary issues that arose in that debate and my comments on further procedure.

   

                                         MY NOTE No. 2 OF 5 AUGUST 2010 in B131/10

   

  THE STRUCTURE OF COUNSEL’S SUBMISSIONS AND FOOTNOTE 73 OF CHAPTER 5 OF THE TEXTBOOK “SUMMARY APPLICATIONS AND SUSPENSIONS”

   

• [3]There were two aspects to Counsel’s submissions: (1) defamation does not justify an action of lawburrows; and (2) if it did, no relevant case of defamation was stated in the present case.The issues for debate are those focused at paragraphs [29], [30] and [32] of my first Note.As will be seen from those paragraphs, Mr Duff’s position, that defamation can relevantly form the basis of an action of lawburrows, is supported by the authority of Walker and Stair.I do not discuss the authority of Walker on this point in my textbook Summary Applications and Suspensions, but I do discuss what Stair had to say about the question in footnote 73 of Chapter 5, found at paragraph 5-20 and page 59 of that book.Before proceeding further, I think it would be helpful for me to set out verbatim the whole terms of footnote 73:

   

  “At IV, xlviii, 13, Stair takes the view that, per synecdoche, lawburrows need not extend only to protection of one’s person or goods, but also “other injuries, such as menacing, reproaching, reviling, defamation”.  This is not always borne out by the earlier case law.  The law requires an act of violence, including an attempted assault, and therefore not necessarily actual harm (see McKie v McKie (1607) Mor 8029, in which the defender attacked the pursuer with a sword, but did not cause any injuries; Bruce v Laird of Clackmannan (1609) Mor 8030, in which the Defender struck the Pursuer on his breast with his fist, drew his whinger (i.e. dagger) and struck at him therewith, albeit that no harm was done; and Bankton, I, x,160 and 166).  But menacing behaviour not involving attempted violence has not always been enough.  Thus in Wallace v Laird of Hayning (1604) Mor 8027 it was not relevant merely to libel that the defender had chased after the pursuer’s servants, without referring to what harm had been caused to them by the defender.  In Constable of Dundee v Flescheour (1605) Mor 8028 the Defender and about 10 or 12 accomplices took off the defender’s hat, crushed it under his feet, trampled upon it, and threatened the pursuer that if he did not take his hat off in his presence, then he would nail it with a whinger (i.e. dagger) to his head – and this was not held to inferred a contravention of lawburrows! Stair’s logic is flawless, but should be treated with caution (see Erskine IV, i, 16 on this point).  However, there is no reason why the earlier case law (Wallace v Laird of Hayning above, from 1604 and Constable of Dundee v Flescheour, above from 1605) should not be overruled if ever the opportunity arises.  They are not in accordance with the modern conception of assault – see e.g., Gilmour v McGlennan, 1993 SCCR 837 .”

   

  COUNSEL’S SUBMISSIONS THAT DEFAMATION DOES NOT JUSTIFY AN ACTION OF LAWBURROWS

   

  Argument One: There is in Fact no Authority Supporting Mr Duff’s Proposition

   

• [4]Mr Dunlop argued that, in fact, neither Walker nor Stair were authority for the proposition that defamation could relevantly form the basis of an action of lawburrows.Walker cited no authority to support that proposition, not even Stair.Stair, for his part, he submitted, did not support the proposition either.At book IV, title 48, paragraph 13, Stair stated as follows:

   

  “The words in the tenor of law-burrows, bearing, “that the complainers, their wives, barins, tenants and servants, shall be harmless and skaithless, in their bodies, lands, tacks, possessions, goods and gear, and no ways to be molested or troubled therein by the persons complained upon, & c.”  may seem to restrict the effect of law-burrows to skaith in the complainers’ bodies, goods, and lands; and so contravention takes no place on other injuries, such as menacing, reproaching, reviling, defamation; neither upon attempts against the body, as by strokes paried off, or escaped: which injuries are more atrocious than injuries in goods and gear.  But the last words, “no way to molest or trouble,” import, that law-burrows are even to be extended to such cases of trouble or molestation, though no other actual skaith follow.”

   

• [5]In my opinion, this paragraph has to be read in its entirety.When Stair states that contravention of lawburrows “takes no place on other injuries”, including defamation, he is repeating the terms of the Lawburrows Act 1581 which, indeed, does not specifically cover such forms of harm. He acknowledges the terms of the Act “may seem to restrict” the remedy of lawburrows to the types of harm specifically mentioned in the Act.However, at the end of the passage, introduced with the word “but” Stair specifically refers to lawburrows as extending “even to such cases of trouble or molestation [i.e. such as menacing, reviling, reproaching, defamation], though no other actual skaith follow”.Stair was able to take that view, as I wrote in footnote 73, per synecdoche (the synecdoche here arises as is clear from Stair’s reference to the use of the words in the Act that a person is in “no way” to be troubled or molested), for the very reason that Acts of the Parliaments of Scotland are not interpreted literally.They are interpreted more in the spirit of the legislation rather than literally. This form of interpretation is discussed at paragraphs 5-07 to 5-09 of Summary Applications and Suspensions.Stair, in my opinion, is therefore correctly to be interpreted as extending the remedy of lawburrows to types of harm not specifically mentioned in the Lawburrows Act 1581 but which, arguably, fall within the spirit of the Act, to prevent persons from harm or molestation, including defamation.

   

• [6]I explain at footnote 73 Stair’s views were not always borne out by the earlier case law.There had to be some act of violence shown in the earlier cases from 1604 and 1605.I expressed my view in footnote 73 those old cases were restrictive because they were not in accordance with the modern conception of assault.It may be that Stair’s views would be of assistance to a court in modern circumstances considering whether lawburrows should be extended to protect someone from a threat of violence rather than actual violence.Whether or not Stair’s views will one day commend themselves to a Scottish court in relation to this particular point, the issue that has arisen in the present case is whether his view that lawburrows protects from defamation as well as other forms of harm accurately represents the current law of Scotland.It is my opinion that Stair intended the remedy of lawburrows to protect persons from such harm and that in taking that view he was acting consistently with the manner in which Acts of the Parliaments of Scotland are interpreted – not literally, but in the spirit of the Act, to protect people from all manner of harm whereby they may be molested or troubled.It is accordingly my opinion, contrary to that of counsel, that Stair is authority for the proposition that the remedy of lawburrows extends to molestation or trouble by means of defamation as well as other forms of harm.

   

  Argument Two: Stair is not Binding on the Court

   

• [7]Counsel referred to the Stair Memorial Encyclopaedia of The Laws of Scotland, Volume 22, paragraphs 438-441 in relation to the authority attached to institutional writings in the law of Scotland. At paragraph 440, page 217, it is noted that views expressed by institutional writers “can be disregarded on grounds of obsolescence or rejected by a bench of judges”.

   

• [8]It seems to me there is no reason why I should not follow that approach.It appears to be supported by the various footnotes referred to in the text and, in my opinion, accords with common sense.Time and circumstances change and law has, in my opinion, to be free to develop with those times and circumstances.

   

• [9]Counsel also referred to paragraph 444, page 218, where it states that in “the absence of conflicting authority” the statements of institutional writers as to the law of Scotland “were to be applied”.He sought to draw from this a general principle that if two institutional writers conflicted with each other, then the court was bound by neither of them.For my part, I would not like to lay down such a general rule.It appears to have an element of logic to it but it seems to me preferable to assess, firstly, whether there is any conflict between institutional writers, the reason for any such conflict, and the strength of their respective arguments, before determining which of the institutional writers to follow.

   

  Argument Three: Erskine Takes a View Contrary to that of Stair

   

• [10]In his Institute of the Law of Scotland, at IV, I, 16, Erskine discussed the action of contravention of lawburrows in the context of it being a penal action.He narrates the history of the action and certain practices in relation to it, which are, now, in fact obsolete.However, in the context of that discussion, Erskine makes an important remark which relates to the substance of the action of contravention of lawburrows.He states: “this action being penal is not incurred merely by the uttering of reproachable words, where they are not accompanied with violence, or at least with a real injury”.

   

• [11]Counsel also referred to an earlier sentence in this passage of Erskine to the effect that lawburrows is “obtained at the suit of him who is disturbed in his person or goods by another, and containing a warrant to charge the party complained of to give security, that the complainer shall be kept harmless from illegal violence.”

   

• [12]Counsel argued, therefore, that the purpose of an action of lawburrows, and any resulting contravention of lawburrows, was limited to acts of “illegal violence” and contravention of lawburrows was not incurred merely by the uttering of reproachful words, where they were not accompanied with violence, or at least with a real injury.”

   

• [13]In footnote 73 of chapter 5 of Summary Applications and Suspensions, I regarded Stair’s “logic as flawless”, but said his views should be treated with caution, under reference to the views expressed by Erskine.That discussion in footnote 73 was not with reference specifically to the question of whether defamation could relevantly form the basis of an action of lawburrows. It was with reference to Stair’s view that as the purpose of the action of lawburrows is to protect from harm or molestation there was no reason to limit the action to cases of actual “real injury”.For example, the case of Constable of Dundee v Flescheour in 1605, in which it was held there was no contravention of lawburrows, must have been a very distressing one for the pursuer.The defender in that case threatened to nail the pursuer’s hat to his head and did so in circumstances that must have been very menacing indeed.Because it is permissible to interpret Acts of the Parliament of Scotland per synecdoche, and not literally, it would logically follow in my opinion, as it seemed to do in Stair’s opinion, that lawburrows should be extended to the protection of a person from acts of harm or molestation, not involving actual physical violence, but including other injuries such as menacing, reproaching or reviling.

   

• [14]In my opinion, Erskine was not discussing the question of defamation at all.He was in my opinion accurately recording the practice of his time, in terms of the case law, that lawburrows had not, in fact, been extended to cases involving merely the uttering of reproachful words without at least an element of real injury.The phrase “the uttering of reproachful words” as used by Erskine is not used in the context of defamation but in the context of violence.Erskine’s reference to “illegal violence” must, in my opinion, be read as a reference to illegal violence as understood at the time he was writing.As I state at footnote 73 of page 5 of Summary Applications and Suspensions, the case law dating back to 1604 and 1605 in relation to violence is not in accordance with the modern conception of assault. If therefore on this point there is a conflict between Stair and Erskine, I personally would follow Stair because I believe, in principle, he is correct, and, secondly, his views anticipate the modern law of assault.

   

• [15]That, however, does not touch on the question of whether I consider Stair correctly extended the remedy as far as defamation.Stair’s view that the remedy should be extended to menacing behaviour, though no actual bodily harm happened may in modern conditions be the preferable view so far as violent harm is concerned.

   

• [16]In summary, therefore, I do not think that if there is conflict between Stair and Erskine, that conflict is such that neither Stair nor Erskine is to be followed on the question of what acts constitute contravention of lawburrows and thus the harm against which an action of lawburrows is intended to protect.

   

  Argument Four: Stair’s Views are Obsolete

   

• [17]Counsel pointed out that the First Edition of Stair’s Institutions were published in 1681 and the Second Edition in 1693.Stair’s passage in relation to lawburrows extending to defamation had not altered between the two volumes and therefore dated to 1681.Counsel, as indeed I, in writing chapter 5 of Summary Applications and Suspensions, have been unable to find any case law in the intervening 329 years in which an action of lawburrows has been extended to cases of defamation.

   

• [18]When I wrote footnote 73 of Chapter 5, and expressed the view that Stairs’ position was a logical one, I did not specifically have in mind the case of defamation.I was more particularly concerned with cases of menacing behaviour in which no actual bodily harm occurred.Although I regarded his views as logical because he was entitled to interpret the Lawburrows Act 1581 per synecdoche so as to extend the remedy of lawburrows beyond cases involving actual bodily harm, I also noted that Erskine was recording the position as contained in the case law at the date of his Institute in 1773.I also expressed the view there was no reason why the earlier case law, taking a restrictive view of lawburrows, should not be reconsidered in the light of modern conceptions of assault.

   

• [19]I am therefore of the opinion that nothing conclusive can be drawn from the argument based on the absence of case law.No case in the past, as reported in the law reports, has dealt with an action of lawburrows extending to cases of defamation.This does not, however, mean to say that the remedy was not intended by the Parliament of Scotland in 1581 to be extended to such cases. As Stair notes, the purpose of the remedy is to protect persons from molestation or harm so that they are in “no way” to be harmed or molested.There is in my opinion no reason in principle why lawburrows should not extend to cases of harm by defamation simply because there is no reported case that says so.The court is entitled as a matter of law based on established principles of interpretation of Acts of the Parliaments of Scotland to extend the application of the Lawburrows Act 1581 to any case falling within the spirit rather than the literal meaning of the Act.Stair’s views in relation to defamation are not in my view obsolete or obsolescent so far as based on an understanding of how to interpret Acts of the Parliaments of Scotland.Walker took the same view as Stair that defamation extended to harm not specifically mentioned in the Act, including defamation, and although he did not support that view by reference to authority, that shows in my view Stair’s views cannot necessarily be regarded as either obsolete or obsolescent.

   

  Argument Five: The Lawburrows Act 1581 must be Construed in a Manner Consistent with the Human Rights Act 1998

   

• [20]Counsel, under reference to the passage quoted from Erskine, pointed out that lawburrows was an action penal in nature.Since there was no reported case extending the remedy of lawburrows to cases of defamation since 1693, the court could not now do so as Article 7 of the Human Rights Convention established the right to freedom from retroactive penal provisions and its extension to cases of defamation would constitute an unlawful interference with the right to freedom of expression under Article 10 of the Convention.

   

• [21]I accept Counsel’s submission that the Defender, as Chief Constable, is entitled to the protection of both Articles 7 and 10 of the Human Rights Convention. However, as I understood it, his argument in relation to Article 10 was based on an interference not prescribed by law.

   

• [22]I also accept his submission that the Lawburrows Act 1581 should be interpreted so as to be compliant with modern human rights legislation as that legislation applies to statutes whenever passed.The argument in relation both to Article 7 and Article 10, however, is that there would be an unlawful interference with human rights because no reported case has ever extended the remedy of lawburrows to cases of defamation and accordingly that would amount to retroactive penal provision and restriction on freedom of expression without legal basis.The difficulty, in my opinion, with those arguments is that both Stair and Walker extend the remedy of lawburrows to cases of defamation.True there is no reported case to that effect but there is the institutional authority of Stair, and the further, more modern, authority of Walker who also regarded the remedy as capable of extending to cases of defamation.These statements of the law have never, in terms, been disapproved by a bench of judges.I do not think, therefore, that anyone could reasonably complain that his human rights was being invaded if the court were to proceed on the basis that Stair and Walker were authority to be followed in the modern law of Scotland.

   

  Argument Six: Defamation is Not a Form of Bodily Injury

   

• [23]Counsel pointed out that Stair himself conceded defamation was not a form of bodily injury.That, in my opinion, is a correct interpretation of book 4, title 48, paragraph 13 of Stair, quoted above.The first part of that paragraph narrates the literal provisions of the Lawburrows Act 1581 and, in my opinion, correctly states that, literally, contravention of lawburrows does not take place on other injuries, such as menacing, reproaching, reviling, or defamation.But, and this in my opinion is crucial to the understanding of Stair, the Lawburrows Act 1581 has to be construed as a whole and the words in the Act that in “no way” is a person to be molested or troubled in the body per synecdoche imported the extension of the remedy to other forms of harm.This, in my opinion, is consistent with the method of interpreting Acts of the Parliaments of Scotland according to their spirit and not literally. Stair was therefore entitled on this basis to take the view that the remedy extended beyond the literal terms of the enactment.

   

• [24]Counsel referred me to authorities regarding defamation as a form of bodily injury and noted a conflict in the authorities but that, it had come to be accepted in the authorities defamation was not a form of bodily injury for the purposes of the law of limitation of actions.He referred in particular to the cases of Barclay v Chief Constable, Northern Constabulary, 1986 SLT 562; Fleming v Strathclyde Regional Council 1992 SLT 162; and Mack v Glasgow City Council 2006 SC 543.

   

• [25]While I accept Counsel’ssubmissions that, for the purposes of limitation of actions, defamation is not a form of bodily injury, that in my opinion misses the point about defamation in the context of an action of lawburrows.If one follows the logic of Stair on how the Lawburrows Act 1581 is to be understood and applied, then it will readily be understood that specific forms of harm mentioned, such as bodily harm, are only examples of what the Act was supposed to prevent – that is a person is in “no way” to be molested or troubled by another.While it is true that the word “therein” might qualify that general expression to cases of bodily harm, Stair does not make the qualification and, in my opinion, he did so for good reason- because he was not bound to interpret the Act in that literal manner.

   

• [26]Counsel referred me to the opinion of the High Court in Duff v Strang, and the opinion of Sheriff Macphail, as he then was, in Morrow v Neil.I refer to these cases in my first Note in this case because both cases opine that an action of lawburrows is limited to cases of bodily harm.But in neither case is there a discussion of whether the remedy extends to cases of harm by defamation.Of course it is clear that if the remedy is limited to bodily harm, understood in the sense of actual bodily harm, Stair’s views are not to be followed.But I am reluctant to take a literal application of statements made in cases, albeit cases of high authority, which do not, in terms, discuss the views of Stair and which therefore in my opinion cannot give any direct guidance on the question whether Stair should be followed in modern law.

   

• [27]I do not regard Stair’s views as obsolete or obsolescent and indeed I think those views anticipate the modern law of assault.Stair did not confine himself to questions of assault but sought to extend the remedy of lawburrows to cases of defamation.He was entitled to because the Lawburrows Act 1581 was intended to protect persons from molestation or harm in any form. In neither of the two cases referred to by Mr Dunlop, did the Court discuss or overrule Stair on this point and I therefore do not take them to be authority for the proposition that lawburrows does not extend to cases of defamation.

   

• [28]Counsel also referred to the case of Morton v Liddle 1996 JC 194 arguing that this confirmed that a pursuer in an action of lawburrows had to show reasonable cause to apprehend the defender would harm him in his body or his property: see page 198D.But counsel in that case conceded, for the purposes of the case, lawburrows was restricted to those sorts of circumstances.There was no discussion as to whether lawburrows extended to cases of defamation. In my opinion therefore Morton v Liddle does not settle the question whether Stair is or remains binding authority on this court.

   

• [29]Counsel further referred me to the Outer House case of Mackenzie v Maclennan 1916 1 SLT 186, a decision of Lord Ormidale, involving a case in which there was only one example of threatened violence the complainer could condescend upon.There was no threat, and nothing that could be construed as a threat, of inflicting violence in the future.There was nothing of the nature of continuing menace.There was nothing in the case to suggest the complainer was “in any real fear at all of bodily hurt”.In these circumstances, the Lord Ordinary allowed a proof in relation to whether the decree of lawburrows, granted on the basis of these averments, ought to be suspended.

   

• [30]This case was approved by the High Court in Duff v Strang 2008 JC 251, but again I note in neither case was there any specific discussion as to whether an action of lawburrows extended to cases of defamation.

   

• [31]I further note that in none of the cases cited by Counsel did a “bench of judges” in terms of The Stair Memorial Encyclopaedia article ever overrule Stair on the question whether an action of lawburrows extended to cases of defamation.It seems to me, therefore, that Counsel’s argument that Stair is not to be followed have not been made out.He has not in my view shown Stair’s view to be obsolete or obsolescent, or that any apparent conflict between Stair and Erskine leads to the result that neither of them is to be followed as binding authority.In my opinion, he has not demonstrated that any bench of judges has ever overruled Stair or that the absence of any case law specifically on the point of whether lawburrows extends to defamation rules out the application of that remedy on human rights or any other grounds.Stair extended an action of lawburrows to cases of defamation, and so did Walker.I do not therefore consider that Counsel has made out the first part of his submissions that defamation does not justify an action of lawburrows.

   

  NO RELEVANT CASE OF DEFAMATION IS STATED

   

  Argument One: No Vicarious Liability

   

• [32]The Pursuer avers in Article 2 of Condescendence that “the Defender refused and incited his officers to further fabricate reports in order to mislead the Dumfries and Galloway police authority”.

   

• [33]In Article 5 of Condescendence he avers that the Defender “has ignored directions with regards to harm and defamation and aiding and abetting the police fabricated reports.”

   

• [34]In Duff v Strang 2008 JC 251 at paragraph [27], the High Court stated that “if the Pursuer’s pleadings are to be read as seeking to hold the Defender vicariously liable for wrongdoing on the part of officers in the police force which he formerly commanded, the sheriff was, in our opinion, right to regard them as irrelevant (Handy v Bowman)”.

   

• [35]Handy v Bowman is an unreported decision on Sheriff Bowen, as he then was, dated September 22, 1986.Mr Dunlop did not refer me to a copy of that decision.

   

• [36]He submitted, having regard to the opinion of the High Court in Duff v Strang, that there could be no vicarious liability on the part of the defender in respect of an action of lawburrows.

   

• [37]I note, in this regard, that section 39(1) of the Police (Scotland) Act 1967 previously provided that the chief constable of the police force was liable in reparation in respect of any wrongful act or omission on the part of any constable under his general direction in the performance or purported performance of his functions in like manner as a master is so liable in respect of a wrongful act or omission on the part of his servant in the course of the servant’s employment.

   

• [38]Section 39(3) of the Police (Scotland) Act 1967 provides that any proceedings in respect of a claim made by virtue of section 39 “shall be brought against the chief constable for the time being…; and references in the foregoing provisions of this section to the chief constable shall be construed accordingly.”

   

• [39]I would have been inclined to have agreed with Counsel that a chief constable cannot be held vicariously liable for the actings of his constables in an action of lawburrows.The processes of lawburrows and contravention of lawburrows are penal in nature.If in an action of lawburrows a defender is ordained to produce a bond of caution or a personal bond and does not do so then he may be imprisoned for a period of up to six months.If he issues the bond but contravenes its terms then an action of contravention of lawburrows requires the concurrence of the procurator fiscal.A successful action of contravention of lawburrows does not lead to imprisonment but a finding the defender is obliged to pay to the pursuer the penalty previously fixed in the action for lawburrows: see my account of the procedures in Summary Applications and Suspensions at paragraphs 5-14 to 5-22.

   

• [40]In my opinion, as originally enacted section 39(1) of the Police (Scotland) Act 1967 would not have conferred vicarious liability on the defender in an action of lawburrows because vicarious liability was restricted to liability “in reparation”.Given the penal nature of actions of lawburrows and contravention of lawburrows, I would not have construed section 39(1) as extending and applying to actions of lawburrows.The chief constable has no liability for the actions of his officers apart from that subsection: Davidson v Mccague and another 1971 SLT 206.

   

• [41]A difficulty arises, however, in my opinion, from the terms of section 102 of the Police Reform Act 2002, which amended section 39(1) of the Police (Scotland) Act 1967 by deleting reference to liability “in reparation in respect of any wrongful act or omission” and substituting for those words the words “for any unlawful conduct”.In terms of the amended section 39(1), the chief constable of a police force is liable for any unlawful conduct on the part of any constable under his general direction in the performance or purported performance of his functions in like manner as a master is so liable for any unlawful conduct on the part of his servant in the course of the servant’s employment.

   

• [42]Whether or not this is sufficient to confer vicarious liability in respect of an action of lawburrows is perhaps uncertain and given the amended section 39(1) has been in force since October 1, 2002, questions also arise whether it would apply retroactively to any of the actions the pursuer complains about.

   

• [43]I did not hear any debate on these issues and these issues are not discussed by the High Court in Duff v Strang.I therefore consider it would be inappropriate for me to form any concluded view on these matters, as I have not had the benefit of submissions on them from the Pursuer or Counsel.

   

• [44]Counsel made the additional point that the allegations of defamation in the present case took place prior to the defender taking up office in 2007.If there were various liability to any extent in an action of lawburrows, then standing the specific terms of section 39(3) of the Police (Scotland) Act 1967, which refers to “any proceedings”, I would doubt that it would be open to the defender to argue that proceedings could not be brought against him as “chief constable for the time being”.However, once again, I have not had the benefit of hearing from the parties in debate in relation to that matter and therefore I do not form any concluded opinion in relation to it.

   

  Argument Two: There are No Relevant Pleadings in Respect of Defamation

   

• [45]At the first hearing of this case on 29 April 2010, Mr Duff referred to a number of documents which he argued contained comments defamatory of him.Comments in one police report, for example, refer to him as “a heavy gambler.”

   

• [46]Macphail, Sheriff Court Practice, Third Edition, paragraph 9.30 at pages 303 and 304 points out that “in many cases the defender is entitled to have grounds of action specified in some detail.”Specifically in relation to actions of defamation he states that “the words used and the places where, occasions when and persons before whom they were uttered, and any innuendo, must be specified.”

   

• [47]I find it difficult to understand what the Pursuer is trying to say in his pleadings regarding defamation by the Defender.From his averments in articles 2 and 5 of Condescendence, it appears he is referring to defamatory comments in the police reports and failure by the defender or his predecessors in office to prevent that defamation.

   

• [48]It is not enough for any Pursuer to lodge in process various documents from which the court is supposed to infer his ground of action.If he seeks to rely on defamation he must specify the words used, the places where, the occasions when, and the persons before whom the words were uttered.The Pursuer has not done that.

   

• [49]While I have not been persuaded by Counsel that Stair was wrong in law to extend an action of lawburrows to cases of defamation that does not mean that any averment of defamation in the context of an action of lawburrows must be regarded as relevant.The basis upon which Stair extended an action of defamation to other injuries not specifically mentioned in the Lawburrows Act 1581 is that a person was in “no way” to be molested or troubled.This, in my opinion, requires a persistent course of conduct which a pursuer has reasonable cause to apprehend will be continued if not restrained by the defender being required to find caution in an action of lawburrows: this view is supported in my opinion by the decision of Lord Ormidale in Mackenzie v Macleannan 1916 1 SLT 186, referred to above at paragraph [42]..

   

• [50]It is therefore not enough for a Pursuer in an action of lawburrows to found upon an isolated act of defamation, or acts of defamation many years ago by a police constable.He must in the detail mentioned by MacPhail aver that defamation has occurred in the past, and is reasonably apprehended in the future.He must aver and show in what way he has been molested or troubled by an injury for which the defender is responsible in order to avail himself of the remedy of lawburrows, assuming Stair is correct to extend the remedy to cases involving defamation.

   

• [51]The Pursuer’s averments in this case fall far short of what is necessary to plead a relevant case of lawburrows based on harm from defamation and accordingly I am persuaded by Counsel that the pursuer’s application for lawburrows is irrelevant for that reason.

   

  Argument Three: The Defender has Absolute Privilege in Respect of Defamation

   

• [52]Counsel referred me to the important case of Taylor v Director of the Serious Fraud Office [1990] 2 AC 173.In this case, the House of Lords decided that absolute immunity from suit extended to out of court statements which could fairly be said to be part of the process of investigating a crime.I note, however, at page 215B Lord Hoffmann excluded from absolute immunity “statements which are wholly extraneous to the investigation – irrelevant and gratuitous libels”.

   

• [53]In my opinion, it is only if the Pursuer had averred a relevant case for lawburrows based on harm from defamation that the question of absolute immunity, or otherwise, would have to be considered by the court.It is debatable, to put it no higher than that, whether a statement in a police report referring to the Pursuer as a “heavy gambler”, if untrue, was wholly extraneous to the investigation and amounted to an irrelevant and gratuitous libel.For these reasons, therefore, it would be premature for me to form a concluded view on whether or not the Defender has available to him in respect of the present proceedings a defence based on absolute immunity from suit.

   

  Argument Four: The Defender has Qualified Privilege

   

• [54]Counsel argued the Defender, if not entitled to the benefit of absolute immunity from suit, was entitled to qualified privilege in respect of any defamatory comments made by police officers as being in the discharge of their public duty to investigate crime: see AB v XY 1917 SC 15; and Rogers v Orr 1939 SC 121.

   

• [55]The effect of qualified privilege is a Pursuer has to aver and prove malice in the making of the statements concerned.The Pursuer in the present case has no averments from which acts of malice may be inferred.

   

• [56]I would wish to reserve my opinion on this point.Counsel’s argument was that the Pursuer in an action of lawburrows could not elide the requirement of averring and proving malice in connection with defamation, where qualified privilege applied, by raising an action of lawburrows.I do not necessarily agree with that.In my opinion, it depends on whether or not Stair was correct to extend the remedy of lawburrows to cases involving defamation.As I have indicated, not any case of defamation would relevantly form the basis of an action of lawburrows as the purpose of the action is to prevent a person from being molested or harmed by the sorts of injuries mentioned by Stair, including defamation.It may well be that those carrying out official duties who engage in a course of conduct that would relevantly form the basis of an action of lawburrows would in any event be acting maliciously.If not, the remedies of damages and lawburrows might well be distinct remedies.

   

• [57]In the event, the court does not have to reach any decision on these matters because it has decided the Pursuer has not pled a relevant case for lawburrows in the present action.It is only if he had done so that the court would have found it necessary to consider possible defences to an action of lawburrows based on defamation (if such be a relevant action) such as those based on absolute or qualified privilege.

   

  Argument Five: Time Bar

   

• [58]This argument was introduced when Counsel responded to Mr Duff’s submissions, but it was not developed by either party with full reference to authority.The alleged defamatory comments were said to have taken place a long time ago.Mr Duff maintained that he had only recently been able to find about the defamatory comments as a result of disclosure of the police reports under the Freedom of Information legislation.

   

• [59]Given that I have regarded the Pursuer’s action as irrelevant, and I did not have the benefit of full debate on the question of any possible time bar and, if there were time bar, whether the Pursuer should be relieved of the consequences thereof, I find it unnecessary for the court to form any opinion on these matters.

   

  Argument Six: Fair Hearing

   

• [60]This issue cropped up at the end of the debate, Mr Duff taking the view he was entitled to a fair hearing and that his various averments should therefore to go to proof.Counsel argued it was not contrary to Article 6 of the Human Rights Convention to dismiss a case after debate.This point, in my opinion, has already been decided by the High Court in Duff v Strang 2008 JC 251, as explained in my first Note in this case.Section 6 of the Civil Imprisonment (Scotland) Act 1882 suggests that actions of lawburrows must be decided only after proof, but that, in fact, is not necessary as a matter of law.It would be wholly wrong, in my opinion, for a Defender to be put to a lengthy and potentially expensive proof when no relevant case of lawburrows has been made out.The Pursuer’s right to a hearing of a case depends on him having a relevant case in the first place and it is not inconsistent, in my opinion, with the notion of fairness that he should be denied a proof if he has not relevantly made out a case for lawburrows against a particular Defender.

   

  THE PROVISO TO SECTION 6(3) OF THE CIVIL IMPRISONMENT (SCOTLAND) ACT 1882

   

• [61]I refer to this proviso at paragraph [32] of my first Note in this case.While section 6 of the 1882 Act reformed the procedure in relation to lawburrows, those reforms were not otherwise to “affect existing law and practice in regard to the process of lawburrows”.At paragraph [32] of my first Note I asked the question: if the law and practice at that date did not show the process of lawburrows extending to cases of defamation, should it now be so applied?

   

• [62]Counsel did not specifically address that question in his arguments at the debate on 24 June 2010, though it is possible as he referred to paragraph [32] of my first Note he intended it be addressed as part of his overall submissions about the state of the case law in 1882.

   

• [63]In my opinion, the proviso raises independent and interesting questions as to what, if any, effect it would have on the authority of Stair, who extended the action of lawburrows to cases of defamation.The case of Mackenzie v Maclennan 1916 1SLT 186, referred to above at paragraph [42], arguably suggests a practice of limiting the process of lawburrows to cases of real injury.The proviso, of course, may be entirely irrelevant to the question, given that Walker was of the same mind as Stair, long after the proviso had been enacted.

   

• [64]Given that this particular matter was not specifically debated before me, I am therefore of the view that it would also be inappropriate for me to form a concluded view on the effect of the proviso.

   

  NO MOTION TO ADJUST OR AMEND THE PLEADINGS  

   

• [65]I have now gone through all the arguments made in this case as to whether or not the Pursuer’s averments about defamation relevantly form the basis of an action of lawburrows against the Defender.I have formed the view he has failed to make out a relevant case only on the basis of one of these arguments, but that is enough to dismiss the case.I am reluctant to depart from the authority of Stair and Walker to the effect that defamation might form the basis of an action of lawburrow .That is because the Lawburrows Act 1581 is not to be construed literally.It is to be construed in the spirit of the Act, which would mean extending the Act to injuries not specially listed in it, specifically those mentioned by Stair as the injuries of “menacing, reproaching, reviling, defamation” and that “though no other actual skaith follow”. Stair’s views are not in my opinion obsolete or obsolescent and have not been overruled by a “bench of judges” – therefore neither of the criteria suggested in the Stair Memorial Encyclopaedia article for departing from the authority of Stair apply so as to allow this court to overrule him.

   

• [66]While I recognise the case law has not extended the remedy of lawburrows as far as Stair extends it, it is arguable that the case law, requiring actual bodily harm, is out of touch with modern conceptions of assault.Stair’s views do not appear to have been discussed in any modern authority and both Stair and Walker are of the same mind that an action of lawburrows should extend to circumstances such as “menacing, reproaching, reviling, defamation”.I do not think that the views of Stair are obsolete or obsolescent.If Stair is correct, and the purpose of the Lawburrows Act 1581 is to protect persons from molestation and harm, then there is no reason why it should not logically apply to other injuries though no actual harm occur.

   

• [67]But even if all that is correct, that is far from giving the Pursuer a relevant case for lawburrows against the present Defender.He does not specify in his pleadings, as he must, what the harm consists of so as to be relevant to an action of lawburrows.Specifically with regard to alleged defamation he does not say in his pleadings what the defamation was and when or how it occurred.It appears, if anything, to have occurred a long time ago. The purpose of an action of lawburrows is to prevent a person being harmed again in the future. A relevant case for lawburrows must involve averments of reasonable apprehension of further harm in the future: Mackenzie v Maclennan 1916 1 SLT 186, per Lord Ormidale.

   

• [68]It is in addition arguably the case, in my opinion, that a chief constable would not be liable to be held to account in an action of lawburrows for any acts of his officers, or his predecessor’s officers, prior to the coming into force of section 102 of the Police Reform Act 2002 as any such vicarious liability would be restricted under section 39(1) of the Police (Scotland) Act 1967 to claims for reparation only.

   

• [69]Should the Pursuer have been given an opportunity by me of adjusting or amending his pleadings in order to make more specific his allegations of defamation against the Defender?Indeed, that would not have been enough because he would have had to have gone further than that and made averments as to the basis upon which he had apprehension of future molestation or harm by the Defender or the Defender’s officers and the basis upon which the Defender could, in law, be held vicariously liable for harmful acts by police constables.

   

• [70]The Pursuer did not make any motion to amend or adjust his pleadings and in view of the doubts I have raised in this judgment about whether the Pursuer is in a position relevantly to plead a claim for lawburrows against the Defender, I do not think it would be appropriate, in the interests of justice, to appoint further procedure to that end in this summary application.I note in particular section 6(3) of the Civil Imprisonment (Scotland) Act 1882 requires the court to dispose of an action of lawburrows “without any written pleadings”.Section 50 of the Sheriff Courts (Scotland) Act 1907 requires the Sheriff to “summarily dispose” of a summary application.The onus is on the Pursuer, in a penal action of this nature, to make out a relevant case and if he does not do so it is not incumbent upon the court, nor indeed consistent with the court’s duties under section 6(3) of the 1882 Act and section 50 of the 1907 Act, to order further procedure in a case where the Pursuer has not requested that.

   

• [71]It accordingly follows that as I regard the Pursuer’s action of lawburrows against the Defender to be irrelevant for the foregoing reasons, the Defender’s oral plea to that effect requires to be sustained and the present application for lawburrows dismissed as irrelevant.

   

                                      MY NOTE IN RELATION TO THIS ACTION

   

• [72]I heard debate on the relevancy of this application on 31 March 2011. Mr Duff represented himself. The defender was represented by Mr Kelly, Advocate, who made similar arguments as to relevancy as had been made by Mr Dunlop at the hearing on relevancy and competency in the second lawburrows application on 29 April 2010.However, on some of these arguments he was able to go into more detail than Mr Dunlop had been able to in April 2010.

   

  COUNSEL’S SUBMISSIONS THAT DEFAMATION DOES NOT JUSTIFY AN ACTION   OF LAWBURROWS

          

  Argument One: There is in Fact no Authority Supporting Mr Duff’s Proposition

   

• [73]Mr Kelly also argued that, in fact, neither Walker nor Stair were authority for the proposition that defamation could relevantly form the basis of an action of lawburrows.Walker cited no authority to support that proposition, not even Stair, and in his later work on Delict, 2^nd edition, revised, Walker made no mention of defamation as forming a ground for contravention of lawburrows.Stair, for his part, he submitted, did not support the proposition either.He referred to Stair, bookIV, title 48, paragraph 13, where Stair stated as follows: “The words in the tenor of law-burrows, bearing, “that the complainers, their wives, bairns, tenants and servants, shall be harmless and skaithless, in their bodies, lands, tacks, possessions, goods and gear, and no ways to be molested or troubled therein by the persons complained upon, & c.”may seem to restrict the effect of law-burrows to skaith in the complainers’ bodies, goods, and lands; and so contravention takes no place on other injuries, such as menacing, reproaching, reviling, defamation; neither upon attempts against the body, as by strokes paried off, or escaped: which injuries are more atrocious than injuries in goods and gear.But the last words, “no way to molest or trouble,” import, that law-burrows are even to be extended to such cases of trouble or molestation, though no other actual skaith follow.”

   

• [74]Mr Kelly argued that this excluded lawburrows on any basis other than bodily harm or harm to property. However, I remain of the opinion that this paragraph has to be read in its entirety for the reasons given in my earlier Note and that Stair did intend to include defamation as a ground for lawburrows. Although Stair does state at book I, title 9, paragraph 30 the purpose of lawburrows is “the safety and security of the people”, he also refers to defamation in the context of contravention of lawburrows at book IV, title 48, paragraph 10 as also extending to “other atrocious injuries against wives and bairns, in their fame, as in their persons”. I read that as fortifying my earlier view that Stair did include defamation as a ground for lawburrows.

   

• [75]Mr Kelly argued for a distinction between lawburrows and contravention of lawburrows and that acts justifying the former were more restricted than what inferred contravention. He argued Stair discussed defamation only in the context of contravention of lawburrows and therefore defamation did not justify granting the remedy. But, in principle, I see no reason for that distinction. In my opinion, the facts liable to infer contravention of lawburrows ought logically to relate to the same sort of conduct for which the remedy is granted. Such distinctions are in my opinion liable to lead in practice to artificiality and absurd results.

   

• [76]Mr Kelly argued from references in the case law and the academic articles referred to in his list of authorities that there was under the pre-1882 procedure for lawburrows a formal oath that excluded any protection other than that against bodily harm or harm to property. He referred to Stair at book IV, title 48, paragraph 15 where Stair apparently argued the oath should be extended to other forms of harm.

   

• [77]I do not agree that this is what Stair meant. It seems to me Stair was merely recording the extension of the remedy by the 1581 Act to cover forms of harm other than direct bodily harm and that the oath should reflect the terms of the original Act as amended by the 1581 Act.

   

• [78]If defamation is included in the 1581 Act, as I think Stair argues in the other passages referred to, there is was no need to swear a formal oath specifically for harm from defamation. It sufficed to swear the extended oath referred to by Stair.

   

• [79]Mr Kelly then argued Stair meant something different by defamation than is now understood by that term. He referred to Professor Norrie’s summary of the history of defamation in chapter 1 on his book on that topic. This suggests defamation was a criminal matter in the past. I am not convinced that is how to interpret the history of defamation. Mr Kelly was unable to refer to the source material. It seems to me that defamation was sued for in the past most commonly in the commissary court. The attraction of proceeding in that court would have been its local nature and the availability of palinode as a remedy. It seems an action for defamation could be sued for in the High Court of Justiciary, possibly until 1755. These seem to me jurisdictional and procedural matters. Stair’s understanding of defamation seems to have been injury in a person’s “fame”. I do not think it demonstrated Stair meant something fundamentally different by defamation than is now understood by that word.

   

• [80]Finally on this point, Mr Kelly argued the 1581 Act had been misinterpreted by Stair because the word “therein”, not referred to by Stair referred back to molestation in the manner set out in that Act. Again I respectfully disagree. That is in my view the sort of technical approach not to be used in interpreting Acts of the Parliaments of Scotland. For my part, I agree with Stair that the Act is to be interpreted so as to protect persons from harm from others, broadly understood. I shall return to this later when I discuss Mr Duff’s submissions.
• [81]For these reasons therefore I am not persuaded to take a different view of how to interpret Stair in relation to defamation and lawburrows.

   

  Argument Two: Stair is not Binding on the Court

   

• [82]Mr Kelly did not pursue this argument.

   

   

  Argument Three: Erskine Takes a View Contrary to that of Stair

   

• [83]However, Mr Kelly did argue Stair had not been followed by either Erskine or Bankton. He referred in detail only to Erskine’s Institute of the Law of Scotland, at IV, I, 16, where Erskine discussed the action of contravention of lawburrows in the context of it being a penal action.He narrates the history of the action and certain practices in relation to it, which are, now, in fact obsolete.However, in the context of that discussion, Erskine makes an important remark which relates to the substance of the action of contravention of lawburrows.He states: “this action being penal is not incurred merely by the uttering of reproachable words, where they are not accompanied with violence, or at least with a real injury”.

   

• [84]Mr Kelly therefore argued that as the purpose of an action of lawburrows, and any resulting contravention of lawburrows, was limited to acts of “illegal violence” and contravention of lawburrows was not incurred merely by the uttering of reproachful words, where they were not accompanied with violence, or at least with a real injury” it was not open to Mr Duff to seek lawburrows based on defamation.

   

• [85]Mr Kelly also reviewed the modern case law in detail- again there was no trace of an application for lawburrows being based on defamation, which he argued supported Erskine’s view of the law. However, for the reasons given in my earlier Note, Erskine’s reference to “illegal violence” must, in my opinion, be read as a reference to illegal violence as understood at the time he was writing and not necessarily as excluding an application for lawburrows based on defamation.

   

  Argument Four: Stair’s Views are Obsolete

   

• [86]Mr Kelly had also been unable to find any case law in the intervening 330 years from Stair’s 1^st edition in 1681 in which an action of lawburrows has been extended to cases of defamation.

   

• [87]When I wrote footnote 73 of Chapter 5, and expressed the view that Stairs’ position was a logical one, I did not specifically have in mind the case of defamation.I was more particularly concerned with cases of menacing behaviour in which no actual bodily harm occurred. Although I regarded his views as logical because he was entitled to interpret the Lawburrows Act 1581 per synecdoche so as to extend the remedy of lawburrows beyond cases involving actual bodily harm, I also noted that Erskine was recording the position as contained in the case law at the date of his Institute in 1773.I also expressed the view there was no reason why the earlier case law, taking a restrictive view of lawburrows, should not be reconsidered in the light of modern conceptions of assault.

   

• [88]I am therefore of the opinion that nothing conclusive can be drawn from the argument based on the absence of case law.No case in the past, as reported in the law reports, has dealt with an action of lawburrows extending to cases of defamation.This does not, however, mean to say that the remedy was not intended by the Parliament of Scotland in 1581 to be extended to such cases. As Stair notes, the purpose of the remedy is to protect persons from molestation or harm so that they are in “no way” to be harmed or molested.There is in my opinion no reason in principle why lawburrows should not extend to cases of harm by defamation simply because there is no reported case that says so.The court is entitled as a matter of law based on established principles of interpretation of Acts of the Parliaments of Scotland to extend the application of the Lawburrows Act 1581 to any case falling within the spirit rather than the literal meaning of the Act.Stair’s views in relation to defamation are not in my view obsolete or obsolescent so far as based on an understanding of how to interpret Acts of the Parliaments of Scotland.Walker took the same view as Stair that defamation extended to harm not specifically mentioned in the Act, including defamation, and although he did not support that view by reference to authority, that shows in my view Stair’s views cannot necessarily be regarded as either obsolete or obsolescent.

   

  Argument Five: The Lawburrows Act 1581 must be Construed in a Manner Consistent with the Human Rights Act 1998

   

• [89]Mr Kelly did not pursue this argument.

   

  Argument Six: Defamation is Not a Form of Bodily Injury

   

• [90]Mr Kelly did not pursue this argument in the same way as Mr Dunlop in the earlier application- he argued defamation was distinct from bodily injury and was not covered by the 1581 Act.But as I have already noted, Stair did not confine himself to questions of assault but sought to extend the remedy of lawburrows to cases of defamation.In my opinion, he was entitled to because the Lawburrows Act 1581 was intended to protect persons from molestation or harm in any form akin to the bodily harm referred to in the Act.

   

• [91]I do not see any particular objection in principle to applying the remedy to cases of defamation. Lawburrows is now largely superseded by interdict but seeks to achieve the same object as an action for interdict- the stopping of an ongoing or threatened harm. Defamation is a wrong and if a person injured by it reasonably fears its repetition, he might obtain interdict, breach of which might render the defender liable to imprisonment. A person ordained to lodge caution for threatened harm, is liable to imprisonment if he does not do so. If he contravenes lawburrows, the caution is forfeited. Both remedies therefore involve potential penal consequences at some point.

   

  NO RELEVANT CASE OF DEFAMATION IS STATED

   

  Argument One: No Vicarious Liability

   

• [92]The Pursuer continues to aver in his Article 2 of Condescendence in the present application that “the Defender refused and incited his officers to further fabricate reports in order to mislead the Dumfries and Galloway police authority”. In Article 5 of Condescendence he avers that the Defender “has ignored directions with regards to harm and defamation and aiding and abetting the police fabricated reports.”

   

• [93]In Duff v Strang 2008 JC 251 at paragraph [27], the High Court stated that “if the Pursuer’s pleadings are to be read as seeking to hold the Defender vicariously liable for wrongdoing on the part of officers in the police force which he formerly commanded, the sheriff was, in our opinion, right to regard them as irrelevant (Handy v Bowman)”.

   

• [94]Handy v Bowman is an unreported decision on Sheriff Bowen, as he then was, dated September 22, 1986.Mr Dunlop did not refer me to a copy of that decision. Mr Kelly did so and I have now considered that case in detail. I agree with the central point in that case that lawburrows is of a personal nature to the defender and that vicarious liability does not apply in cases of lawburrows.

   

• [95]In my previous note, in this regard, I referred to section 39(1) of the Police (Scotland) Act 1967 which previously provided that the chief constable of the police force was liable in reparation in respect of any wrongful act or omission on the part of any constable under his general direction in the performance or purported performance of his functions in like manner as a master is so liable in respect of a wrongful act or omission on the part of his servant in the course of the servant’s employment and that Section 39(3) of the Police (Scotland) Act 1967 provides that any proceedings in respect of a claim made by virtue of section 39 “shall be brought against the chief constable for the time being…; and references in the foregoing provisions of this section to the chief constable shall be construed accordingly.”

   

• [96]Mr Kelly argued that a chief constable could not be held vicariously liable for the actings of his constables in an action of lawburrows because of the essentially personal nature of that action, as held in Handy v Bowman.

   

• [97]In my previous note, I considered the construction of section 39(1) of the Police (Scotland) Act 1967 as originally enacted would not have conferred vicarious liability on the defender in an action of lawburrows in any event because vicarious liability was restricted to liability “in reparation”.Given the penal nature of actions of lawburrows and contravention of lawburrows, I would not have construed section 39(1) as extending and applying to actions of lawburrows.The chief constable has no liability for the actions of his officers apart from that subsection: Davidson v Mccague and another 1971 SLT 206.A potential difficulty arose, however, in my opinion, from the terms of section 102 of the Police Reform Act 2002, which amended section 39(1) of the Police (Scotland) Act 1967 by deleting reference to liability “in reparation in respect of any wrongful act or omission” and substituting for those words the words “for any unlawful conduct”.In terms of the amended section 39(1), the chief constable of a police force is liable for any unlawful conduct on the part of any constable under his general direction in the performance or purported performance of his functions in like manner as a master is so liable for any unlawful conduct on the part of his servant in the course of the servant’s employment.

   

• [98]I did not express a view in my earlier note whether or not this was sufficient to confer vicarious liability in respect of an action of lawburrows. I did not hear any debate on these issues at that time and these issues were not discussed by the High Court in Duff v Strang.Having had the opportunity of hearing parties in debate on these points on this occasion and the benefit of reading the judgment in Handy v Bowman, I agree with Mr Kelly that vicarious liability has no application in lawburrows, owing to the personal and potentially penal nature of the remedy.

   

  Argument Two: There are No Relevant Pleadings in Respect of Defamation

   

• [99]Mr Duff’s pleadings in this case are more specific about police reports which he argued contained comments defamatory of him.Comments in one police report, for example, refer to him as “a heavy gambler.”

   

• [100]Macphail, Sheriff Court Practice, Third Edition, paragraph 9.30 at pages 303 and 304 points out that “in many cases the defender is entitled to have grounds of action specified in some detail.”Specifically in relation to actions of defamation he states that “the words used and the places where, occasions when and persons before whom they were uttered, and any innuendo, must be specified.”
• [101]I shall discuss Mr Duff’s pleadings later in this Note. I repeat what I said in my earlier Note that while I have not been persuaded by Counsel that Stair was wrong in law to extend an action of lawburrows to cases of defamation that does not mean that any averment of defamation in the context of an action of lawburrows must be regarded as relevant.The basis upon which Stair extended an action of defamation to other injuries not specifically mentioned in the Lawburrows Act 1581 is that a person was in “no way” to be molested or troubled.This, in my opinion, requires a persistent course of conduct which a pursuer has reasonable cause to apprehend will be continued if not restrained by the defender being required to find caution in an action of lawburrows: this view is supported in my opinion by the decision of Lord Ormidale in Mackenzie v Macleannan 1916 1 SLT 186.

   

• [102]Mr Kelly put it this way: an action of lawburrows looks to the future; it does not seek to redress past wrongs. It is therefore not enough for a Pursuer in an action of lawburrows to found upon an isolated act of defamation, or acts of defamation many years ago by a police constable.He must in the detail mentioned by MacPhail aver that defamation has occurred in the past, and is reasonably apprehended in the future.He must aver and show in what way he has been molested or troubled by an injury for which the defender is responsible in order to avail himself of the remedy of lawburrows, assuming Stair is correct to extend the remedy to cases involving defamation.

   

  Argument Three: The Defender has Absolute Privilege in Respect of Defamation

   

• [103]Mr Kelly again referred me to the important case of Taylor v Director of the Serious Fraud Office [1990] 2 AC 173.In this case, the House of Lords decided that absolute immunity from suit extended to out of court statements which could fairly be said to be part of the process of investigating a crime.I note, however, at page 215B Lord Hoffmann excluded from absolute immunity “statements which are wholly extraneous to the investigation – irrelevant and gratuitous libels”.

   

• [104]In my opinion, the Pursuer has advanced his pleadings somewhat. It is now possible to determine what he avers as acts of defamation and therefore to consider if this is a case to which absolute immunity, or otherwise, applies.

  Argument Four: The Defender has Qualified Privilege

   

• [105]Mr Kelly also argued the Defender, if not entitled to the benefit of absolute immunity from suit, was entitled to qualified privilege in respect of any defamatory comments made by police officers as being in the discharge of their public duty to investigate crime: see AB v XY 1917 SC 15.

   

• [106]The effect of qualified privilege is a Pursuer has to aver and prove malice in the making of the statements concerned.The Pursuer in the present case has no averments of malice.

   

• [107]In my earlier note, I opined that the court did not have to reach a decision on matters of absolute or qualified privilege because it has decided the Pursuer has not pled a relevant case for lawburrows in the present action.In the present state of the pursuer’s pleadings it is necessary for me to discuss these issues and I do so later on in this Note.

  Argument Five: Time Bar

   

• [108]This argument was not pursued by Mr Kelly.

   

  Argument Six: Fair Hearing

   

• [109]There were no arguments about absence of a fair hearing in this debate.

   

  THE PROVISO TO SECTION 6(3) OF THE CIVIL IMPRISONMENT (SCOTLAND) ACT 1882

   

• [110]I referred to this proviso at paragraph [32] of my first Note in the earlier case.While section 6 of the 1882 Act reformed the procedure in relation to lawburrows, those reforms were not otherwise to “affect existing law and practice in regard to the process of lawburrows”.At paragraph [32] of my first Note I asked the question: if the law and practice at that date did not show the process of lawburrows extending to cases of defamation, should it now be so applied?

   

• [111]Mr Dunlop did not specifically address that question in his arguments at the debate on 24 June 2010 in the earlier case.Given that this particular matter was not specifically debated before me in the earlier case, I was therefore of the view that it would also be inappropriate for me to form a concluded view on the effect of the proviso.

   

• [112]The matter arose for debate on this occasion. Mr Kelly noted there was no evidence in the case law to show lawburrows applying to defamation cases. However, I am of the view this is a matter of substantive law, rather than the law and practice “in regard to the process of lawburrows”. The reference to the law and practice in the proviso is in my opinion a reference to procedure and accordingly the proviso is not relevant to my views in this case.

   

  THE PLEADINGS  

   

• [113]Mr Duff refers to six police reports in article 5 of his condescendence. He maintained in his submissions there was at least one incident involving defamation and his action was both competent and relevant. I will analyse his pleadings in view of the legal framework set out above and then consider some other of Mr Duff’s submissions.

   

• [114]The first report is dated 7 March 1988. The report mentions a number of things about Mr Duff, including him being a heavy gambler. Mr Duff does not aver this was untrue but he later avers it was defamatory. In my view, such a claim is potentially defamatory in nature and is not necessarily protected by absolute privilege. In Taylor v Director of the Serious Fraud Office [1990] 2 AC 173, the House of Lords decided that absolute immunity from suit extended to out of court statements which could fairly be said to be part of the process of investigating a crime.I note, however, at page 215B Lord Hoffmann excluded from absolute immunity “statements which are wholly extraneous to the investigation – irrelevant and gratuitous libels”. This comment potentially falls into that category. That then would attract qualified privilege, which requires an averment of malice. Mr Duff has failed to aver Lord Hoffman’s exception or malice. His averments are therefore irrelevant.

   

• [115]The second report he refers to is dated 13^th December 1988. It refers to Mr Duff being convicted of an offence. Mr Duff does not aver this is untrue but that was his position at debate. Even so, it does not fall into the category of either an “irrelevant and gratuitous libel” or a malicious statement. At best, it is an incorrect statement- not one that would allow Mr Duff to sue for damages for defamation against the police. On its own it is not enough to found an action of lawburrows but its relevancy depends on other considerations, discussed below.
• [116]The third police report is dated 11^th February 1988. It firstly states Mr Duff was lawfully sequestrated. Mr Duff spent time at debate explaining why he thought his sequestration in 1976 had been unlawful. The reality is the sequestration has never been recalled or reduced. It is prima facie valid. Mr Duff will never agree his sequestration was lawful. The police expressed a different view. This is a difference of opinion, not defamation. This averment is therefore irrelevant.

   

• [117]Secondly, this report refers to Mr Duff having been reported for an offence in connection with his sequestration. Mr Duff stated in debate he was tried for this offence, but acquitted. I can see why he objects to the sentence he quotes, but this is not a claim he committed this crime when he did not. It states he was “reported” for an offence “in that” he did certain things. It would have been better had this read Mr Duff “allegedly” did those things. The reality though is this passage is true- Mr Duff was reported for an offence; he had to have been if he was prosecuted for it and found not guilty. This is not a defamatory statement and is irrelevant.

   

• [118]The fourth police report is dated 31^st October 1990. It refers to two individuals who gained nothing “because of Mr Duff’s actions” and Mr Duff not co-operating with his solicitor. There is not anything there which in my opinion can be construed as defamation. Mr Duff may disagree with the report, but that is not sufficient. These averments are therefore irrelevant.

   

• [119]The fifth police report is dated 22^nd February 1991. I have difficulty in seeing what is defamatory there, except for one averment about a conviction. It alleges Mr Duff had legal aid revoked at one point. Mr Duff acknowledged in his submissions at debate it had been revoked but said it was restored. This is not defamation. The reference to him having been convicted for an offence is “in relation to failure to abide by the terms of his sequestration brought about by his own actions and failure to take cognizance of professional advice”.
• [120]In my opinion, this goes beyond the bare statement of a conviction in the second report and potentially falls into the category of an “irrelevant and gratuitous libel”. But again Mr Duff has not averred that, or malice. Accordingly, this averment is also irrelevant.

   

• [121]The sixth police report is dated 22^nd June 1998. Mr Duff believes he should have an investigation into his alleged unlawful sequestration in 1976. This appears to set out his views and wishes. It is not defamatory of him. These averments are therefore irrelevant.

   

• [122]At best for Mr Duff, he has potential defamation in the first report, calling him a heavy gambler, and in the fifth report maintaining not only he was convicted but the alleged basis of wrongdoing. He has not gone on to aver these were excluded from absolute privilege for reason of being an “irrelevant and gratuitous libel” and were malicious statements as they would then have attracted qualified privilege. But even if he had done that, his pleadings would still be irrelevant.

   

• [123]At the end of condescendence 5, he avers the allegations were defamatory and injurious to him and his family. He has averred the defender has incited his officers to circulate the reports to various persons, as recently as 24^th January 2011. The 1581 Act refers to direct or indirect acts of harm so it is arguable the defender could have harmed the pursuer by getting his officers to send out defamatory reports about the pursuer being a heavy gambler and having been convicted of an offence. The statement in the second report about the conviction needs to be assessed for relevancy in this context.

   

• [124]Lawburrows protects from wilful harm. The pursuer avers the defender faked reports with the intention of causing him harm. Faking reports is a different matter from sending out reports with potentially defamatory content in them. The pursuer does not aver the requisite reports were sent out at the defender’s instruction. They may have been, but that is not pled. Inciting someone to do something does not mean he or she acts on that instruction. That is particularly important here because the pursuer avers the defender has acted wrongfully by faking reports- his officers are entitled in law to refuse to carry out criminal instructions.

   

• [125]That is not the end of Mr Duff’s difficulties. There is no averment the defender continues to harm him or Mr Duff has reason to believe he will do so. Future apprehended wrong is what justifies lawburrows as I made plain in my earlier Note.

   

• [126]For all these reasons therefore Mr Duff has failed to aver a relevant case for lawburrows based on defamation.

   

• [127]But he advanced a further argument at debate, implicit in his pleadings. He suggests he was illegally sequestrated in 1976. Since then he has sought to have the situation reversed. He was a successful builder and believes had he not been sequestrated he would have remained vested in land he could have developed and sold for housing at a benefit of up to £20,000,000. He believes there was a criminal conspiracy to defraud him. He believes the defender should investigate that conspiracy and hold an investigation into it. He claims harm to himself and his family because he cannot get his lands and money back because of the defender and his officers.

   

• [128]Mr Duff clearly feels aggrieved by what he perceives to be an injustice that materially affected the course of his and his family’s whole life since 1976. But his action for lawburrows on the basis of the defender not investigating his complaints and allegedly faking reports is fundamentally misconceived. He argues it is harm to him in his property. The 1581 Act covers harm to property. But that is not enough.

   

   

• [129]The defender has to be likely to cause harm in the future. He did not cause the loss to Mr Duff in the past. Even if Mr Duff were correct on his sequestration being illegal those who allegedly conspired against him would have caused his loss. The defender is not obliged to hold investigations into this alleged criminality. He does not wrong Mr Duff in law by exercising discretion not to do so. There is therefore no basis for lawburrows on those averments.

   

• [130]Even if there were any truth in the defender faking reports, the six reports mentioned by the pursuer pre-date his appointment as Chief Constable in 2007 and are all past acts which in and of themselves form no basis for lawburrows.

   

• [131]The only shadow of relevancy is in the defender circulating reports containing untrue statements about the pursuer being a heavy gambler and convicted of an offence in connection with his sequestration. Even that is not enough. There are no averments absolute privilege would not apply and why. There are no averments of malice in the event it did not apply. There are no averments the statements were circulated by the defender personally or on his instructions, to whom and when, and with specific intention to harm the pursuer or his family. There are no averments from which it can be inferred the pursuer reasonably apprehends harm from the defender in the future. He has not pled a relevant case for lawburrows.

   

• [132]I now ask as I did in the previous action, should the Pursuer have been given an opportunity by me of adjusting or amending his pleadings in order to make more specific his allegations of defamation against the Defender?The Pursuer did not make any motion to amend or adjust his pleadings. As in the previous case, I do not think it would be appropriate, in the interests of justice, to appoint further procedure to that end in this summary application.I note in particular section 6(3) of the Civil Imprisonment (Scotland) Act 1882 requires the court to dispose of an action of lawburrows “without any written pleadings”.Section 50 of the Sheriff Courts (Scotland) Act 1907 requires the Sheriff to “summarily dispose” of a summary application.The onus is on the Pursuer, in a penal action of this nature, to make out a relevant case and if he does not do so it is not incumbent upon the court, nor indeed consistent with the court’s duties under section 6(3) of the 1882 Act and section 50 of the 1907 Act, to order further procedure in a case where the Pursuer has not requested that.

   

• [133]It accordingly follows that as I regard the Pursuer’s action of lawburrows against the Defender to be irrelevant for the foregoing reasons, the Defender’s oral plea to that effect requires to be sustained and the present application for lawburrows dismissed as irrelevant.

   

                                                  PLEA OF LIS ALIBI PENDENS

   

• [134]Mr Duff has a related action against the defender inter alia for damages for defamation arising out of much of the same averments. Had I not been with him on relevancy, Mr Kelly moved for dismissal or the sist of this application pending the other action, currently on interlocutory appeal to the Inner House. It is unnecessary to decide that as I have sustained the plea to the relevancy.

   

                                                              EXPENSES

   

• [135]The court has discretion to award expenses as it sees just in an action of lawburrows: Civil Imprisonment (Scotland) Act 1882, section 6(3). I canvassed parties’ views on the hypothesis of either party being successful at debate. Mr Kelly argued expenses should follow success; Mr Duff that he had being trying to get a hearing on lawburrows in circumstances where the defender constantly sought to obstruct him doing so. He argued that, if he lost, he should not be found liable in expenses as he had a legitimate complaint against the defender.

   

• [136]In my view, while there was a shadow of relevancy in some of Mr Duff’s pleadings against the defender, this is now his third unsuccessful attempt relevantly to plead an action of lawburrows. He has failed to do that again, despite my earlier judgment indicating the essential nature of pleadings in such an action and referring to the case law he had to surmount on absolute and qualified privilege. Mr Kelly did go over old ground but specifically in the event I found against him and the case went to another court. I think he was justified in that approach. This case raises points of law of considerable antiquity and importance and had I found Mr Duff had pled a relevant case, it is likely to have gone on appeal to the Court of Session. Mr Duff has raised a third failed application for lawburrows against the Chief Constable. Although he could make some reference to alleged defamation, he wanted the defender to answer for loss allegedly caused to him by others long ago. That was not a proper use of the process of lawburrows.

   

• [137]Having regard to all these considerations, I am of the view that the just course is to find Mr Duff liable for the expenses of this action. He has caused the expense of the litigation, and has not been able to improve significantly on his earlier failed pleadings. Mr Kelly made certain submissions which were not successful before me. But I accept this was done for good reason- to protect his client’s position if the case went further. Given the important issues involved, I think it was in the public interest for him to have done so. However, in all the circumstances I believe a small modification is necessary to reflect the time taken up on those unsuccessful submissions and I shall assess that at 10%. In view of the legal complexity of this case and its public importance, I am satisfied this case is appropriately certified as suitable for employment of junior counsel.