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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCue v Scottish Daily Record & Sunday Mail Ltd & Anor [1998] ScotCS 82 (30 November 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/82.html Cite as: [1998] ScotCS 82

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In this action the pursuer seeks an award of damages against the defenders on the ground that he was defamed in an article in the Sunday Mail newspaper of 9 July 1995. The pursuer has reclaimed against an interlocutor of the Lord Ordinary dated 14 November 1997 by which the defenders were assoilzied in respect of the pursuer's failure to find caution in the sum of £15,000 as ordained by a previous interlocutor of 10 September 1997. The point at issue in this reclaiming motion is whether the pursuer should have been ordained to find caution. At an earlier stage in the history of this reclaiming motion it was held by a court of five judges on 5 June 1998 that it was competent for the pursuer to seek the review of the interlocutor of 10 September 1997.

The reclaiming motion was heard initially on 29 September 1998, and was continued to enable the defenders to lodge a minute setting out certain factual matters on which they had relied and for the pursuer to lodge answers thereto. This was done in due course. On 28 October when the case was called By Order counsel appeared for the pursuer, who until then had represented himself. The court granted his motion for the substitution of fresh grounds of appeal in place of the existing, and indicated that it would hear further argument in regard to the reclaiming motion, but restricted to those matters which had not been covered in the previous discussion on 29 September. On 30 November 1998 the discussion on the reclaiming motion was completed.

It is not in dispute that the pursuer is an undischarged bankrupt, having been sequestrated on 9 June 1997, shortly after the raising of this action. It is clear from the opinion of the Lord Ordinary who ordained caution to be found by the pursuer that he accepted an argument for the defenders that, in the light of the decision of Lord Cowie in Grindall v. John Mitchell (Grangemouth) Ltd. 1984 S.L.T. 335, the pursuer's averments as to patrimonial loss were apparently irrelevant. This was because of the absence of an averment that both the trustee in sequestration and the creditors had specifically abandoned the pursuer's claim for such loss. However, Mr. Taylor, who appeared as solicitor advocate for the defenders, accepted that, in the light of the doubt cast on that decision by Lord McCluskey in Dickson v. United Dominions Trust 1988 S.L.T. 19, he could not support the argument which had been presented to the Lord Ordinary. In these circumstances Mr. Taylor accepted that the exercise by the Lord Ordinary of his discretion was flawed in this respect, and accordingly that it was open to this court to look at the question of caution afresh.

A convenient starting point in considering the circumstances of the present case is the fact that the pursuer is an undischarged bankrupt. In Clarke v. Muller (1884) 11 R. 418 the Lord President (Inglis) said at page 419 that, having looked through all the authorities, he was satisfied that the general rule was quite established to the effect that a pursuer who is an undischarged bankrupt cannot be allowed to sue an action without finding caution for expenses. He continued:

That statement of the law has been followed in a number of later cases. In Fraser v. McMurrich 1924 S.C. 93, the Lord Justice Clerk (Alness) stated at page 97 that the law was settled by that case. As was pointed out by Lord Fraser of Tullybelton in Stevenson v. Midlothian District Council 1983 S.C. (H.L.) 50 at page 58, the normal reason why a bankrupt is ordered to find caution as a condition of being allowed to sue an action is that he is usually seeking to recover for himself something which properly belongs to his estate which has been sequestrated, and accordingly he is not the proper party to sue. It is true that in Thom v. Andrew (1888) 15R 780 Lord Young stated at page 782-783 that there was a recognised exception, which was not an absolute exception, in the case of certain actions of a personal character, of which the gross slandering of a bankrupt was an example. However, in the light of the decided cases, we do not consider that this is an authoritative statement of the law. Further it may be noted that the opinion of Lord Young has been relied upon where there is no question of the pursuer's action being of potential benefit to his creditors (see Cooney v. Kirkpatrick 1989 S.C. 61, per the Lord Justice Clerk (Ross) at page 62). This does not apply to the present case. Accordingly we approach the question of caution on the footing that the normal rule is that the pursuer who is an undischarged bankrupt should be required to find caution unless there are exceptional circumstances which lead the court in the exercise of its discretion to decide otherwise.

We can deal shortly with one factor which the pursuer invited us to take into account. He submitted that the article had led to his sequestration. No doubt if the pursuer could show at least prima facie that there was substance in this assertion it would be a significant factor against the ordaining of caution (see Gallagher v. Edinburgh Corporation 1929 S.L.T. 356). However, we are not satisfied that he has done so. The pursuer offers to prove that at the time of the publication of the article he was in discussions with a bank with a view to the provision of overdraft facilities and with a brewing company in regard to a trading loan, and that as soon as the article appeared each of those undertakings withdrew from their discussions with him. He also avers that his creditworthiness ceased as a consequence of the article and that he had to give up a public house business and obtained no consideration for it. However, the account of the pursuer's state of indebtedness which the defenders set out in the minute which was lodged as a result of the interlocutor dated 29 September 1998 - which is substantially admitted by the pursuer - conflicts with the assertion that the article led to his sequestration. In these circumstances we attach no weight to this factor.

The main thrust of the pursuer's case that he should not be ordained to find caution was presented by his counsel, Mr. Dunlop. He submitted that it was relevant for the court to take into account the strength of the pursuer's case and the relative strength of the defence. Mr. Taylor, on the other hand, did not dispute that in the past the court had taken into account the fact that the position of one or other of the parties was untenable. However, he submitted that, in the absence of that situation, the respective strength of the parties was a neutral factor. We consider that this is an unduly narrow approach which is not supported by authority. No doubt examples can be found in which the case of one or other of the parties has been described as untenable. However, that does not demonstrate that this is the test by which the court determines whether the strength or weakness of the position of one of the parties is a relevant consideration. Strictly speaking, the question is not one of relevance but of materiality. The stronger the position of one party relative to the other the more the court would be disinclined to ordain a step to be taken which would prevent him proceeding.

At this point it is convenient to set out a short summary of the parties' averments. The pursuer's complaint arises out of the fact that the article narrated that undercover detectives had found a large number of forged banknotes in a raid on a public house in Glasgow, The Cumberland Arms. The article also stated that the public house was run by the pursuer, "who has strong connections with reformed killer Jimmy Boyle". It is also averred that alongside the article was a photograph of The Cumberland Arms which was taken at such an angle as to show a police car apparently outside the public house. Beneath the photograph was the caption: "Cumberland Arms...scene of the dramatic operation by police". The pursuer avers that the article was untrue; and that the police did not find a quantity of forged banknotes in the premises. Further the pursuer had no "strong connections" with Jimmy Boyle. The police vehicle was merely parked outside Gorbals Police Station which was situated next to the Cumberland Arms. The pursuer then avers:

The defenders for their part aver that the information which was received by the second defender, who was a newspaper reporter, was inaccurate to the extent that the raid had taken place, not at the Cumbernauld Arms, but at premises then known as the Suntowers Tanning Parlour situated at 10 Commercial Street approximately 500 yards away. The defenders aver that at the material time the pursuer was known to be involved in the running of that business along with Mr. George O'Neil. They aver that the terms of the article did not defame the pursuer. They were substantially true. He had been involved in running The Cumberland Arms.

Mr. Dunlop pointed out that the pursuer's case was essentially built on the innuendo which, it was averred, the reader would understand from the article. The defenders did not suggest that this innuendo was incapable of being drawn. Accordingly the question at any enquiry would be whether a reasonable reader would have derived the innuendo which was averred by the pursuer. For their part the defenders averred that the article was "substantially true". However, it was important to note that the defenders did not offer to prove that the innuendo averred by the pursuer was true. They only offered to prove that there had been a raid at other premises with which the pursuer had a connection. Mr. Dunlop referred to a passage in the opinion of the Lord Justice Clerk (Inglis) in Harkes v. Mowat (1862) 24 D 701 at page 703 as follows:

He also referred us to Cooper on Defamation 2nd edition page 245 where the author points out that it is only if the pursuer's issue with its innuendo is affirmed by the jury that any defamation requiring justification has been proved. He continues:

In the present case the defenders did not aver that the innuendo which the pursuer sought to put on the words was justified. Accordingly their defence was in reality limited to challenging the innuendo which the pursuer sought to derive from the terms of the article.

Mr. Taylor accepted that the defenders were not offering to prove that the pursuer was involved in criminal activities, and accordingly they were not seeking to establish that innuendo averred by the pursuer was true. Their position was that while the article was capable of bearing such an innuendo it did not in fact do so. If the action was to proceed it would be for the jury to decide that question. The defenders would seek to prove that a raid took place at the other premises, although it did not appear to be likely that this was in dispute. They would also seek to prove that the pursuer's association with these premises was at least as well known as his connection with The Cumberland Arms. The pursuer did not now appear to dispute that he had been involved in the operation of the other premises, although at an earlier stage in the case he had informed the Lord Ordinary that he had nothing to do with them.

In the present case we note that the defenders do not dispute that the statement made in the article that there had been a raid on The Cumberland Arms public house was inaccurate; that the defenders do not dispute that the article is capable of bearing the innuendo averred by the pursuer; and that they do not seek to prove the truth of that innuendo. These appear to us to be important factors in giving some indication of the relative strength of the parties in regard to the merits of the action. In the case of a bankrupt pursuer in a defamation action the fact that the statement is admittedly untrue has been treated as a circumstance which is favourable to the contention that he ought to be allowed to proceed without caution (Collier v. Ritchie & Company (1884) 12 R. 47); and similar considerations may apply where the pursuer effectively is in the position of being a defender (Neil v. South East Lancashire Insurance Co. 1930 S.C. 629). In the present case we require to take account of the fact that there was a substantial period of time between the publication of the article and the raising of the present action. The summons in which was signeted on 4 February 1997. Delay may be a significant factor, as in Collier. However, it should also be borne in mind that at the outset and until the instruction of Mr. Dunlop the pursuer was representing himself. In the whole circumstances we have come to the conclusion that, on balance, the considerations in favour of the pursuer not being ordained to find caution prevail.

Accordingly we will allow the reclaiming motion, recall the interlocutors dated 10 September and 14 November 1997, and remit the action to the Outer House for the Lord Ordinary to proceed as accords.