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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Moffat v News Group Newspapers Ltd [1999] ScotCS 149 (17 June 1999) URL: http://www.bailii.org/scot/cases/ScotCS/1999/149.html Cite as: [1999] ScotCS 149

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This is an action of damages for defamation brought by the pursuer in respect of articles published by the defenders in a newspaper on 27 August 1994. Put shortly, the articles are said by the pursuer, who is a director of Scottish Television Plc, to be defamatory of him in, among others, the respect that they represented directly and by innuendo that he had carried on, and was continuing to carry on, an adulterous relationship with a professional colleague, Rhoda Macdonald. Parallel defamation proceedings in respect of the same newspaper articles have been brought by Rhoda Macdonald and, for convenience, where the context makes it appropriate, I shall refer collectively to the pursuer in this action and Rhoda Macdonald as "the pursuers". In both of the actions the Record has closed and the parties have agreed that a proof should take place. A diet of proof, for both actions, has been allocated for four days in November this year.

In each of the actions a motion in similar terms has been enrolled on behalf of the pursuer. One branch of the motion seeks to have the defenders ordained to lead at the proof. In their defences to the actions the defenders plead that the allegations made in the newspaper articles are true and in these circumstances, the burden of establishing veritas being on them, the defenders consent to leading at the proof. I shall therefore grant this branch of the motion. The other and contested branch of the pursuer's motion is -

The paper apart contains six paragraphs. Paragraph 1 refers to an averment by the defenders that "Other STV production staff told Donnie MacLeod [Rhoda Macdonald's then husband]..." and follows that reference with the question "Who are these staff?". Paragraph 3 adverts to an averment that a particular producer "appeared to be acting under pressure" in cancelling a particular engagement and to an averment that "STV's solicitors later advised that the engagement had been cancelled on the instructions of Rhoda Macdonald" and states that those solicitors should be identified as also should be the persons "supporting" the former averment.

The remaining paragraphs refer to averments more directly concerned with the personal relationship between the two pursuers. Thus paragraph 2 relates to an averment made by the defenders to the effect that while attending a film festival at Roscoff in March 1989 the pursuers held hands while walking on a beach. Paragraphs 4 and 6 concern the pursuers' attendance at a film festival in Londonderry in March 1994 and, particularly, averments that the pursuers lunched together at a named restaurant and averments concerning the occupation of two hotel bedrooms allocated to the pursuers respectively, from which the defenders seek to infer adultery. Paragraph 5 relates to the pursuers' attendance at a similar film festival in Fort William in April 1995 and in particular to the state of occupation of the pursuers' respective hotel bedrooms on a specified night, from all of which a similar inference of adultery is sought to be drawn. In the case of each of these paragraphs identification of those who "support" the averments is sought.

Section 1(1A) of the Administration of Justice (Scotland) Act 1972 ("the 1972 Act") provides that -

The terms of sub-section (4) are not pertinent for present purposes.

In moving the motion Mr Jones, who appeared for the pursuer, observed that subject to exceptions not material to the present case the Court had no common law power to order the disclosure of the identity of witnesses at large. His motion was thus presented under the terms of section 1(1A) of the 1972 Act. In that connection Mr Jones referred to the Opinion delivered by Lord Macfadyen in Boyce v Cape Contracts Limited 1998 S.L.T. 889 and in particular the passage at 891L in which Lord Macfadyen expressed his agreement with the views expressed by Lord Kirkwood in Mooney v City of Glasgow District Council 1989 S.L.T. 863 to the effect that the discretion conferred by the section fell to be exercised in light of the circumstances of the particular case, that it was for the party seeking the order to put forward circumstances which justified its being made, and that the tests should be whether in the circumstances relied on by that party, when weighed along with any counter-bearing circumstances relied on by a party opposing the application, it was in the interests of justice that the order be granted.

Counsel submitted that in the present action there were particular circumstances favouring the early disclosure of the identity of the defenders' witnesses and thus the exercise of the discretion given by section 1(1A) of the 1972 Act. Those particular circumstances were that the defenders made averments of what counsel described as being many instances of alleged improper familiarity between the two pursuers in different locations in France, Northern Ireland, and Fort William. In view of those many and widespread instances, counsel submitted that in order for the pursuers' solicitors to have a reasonable opportunity to precognosce the defenders' witnesses and make any further appropriate investigations it was necessary to start on that precognition exercise now, rather than await the intimation 28 days prior to the proof diet of a list of witnesses in terms of Practice Note 8/1994. Counsel added further that it might be that there were in existence witnesses who might not be included by the defenders on their list if their testimony were in fact favourable to the pursuers.

In opposing this branch of the motion Mrs Smith, for the defenders, stressed that the onus was on the party seeking an order of this kind to put forward specific grounds which justify its making. In support of that proposition she referred firstly to Civil Service Building Society v McDougall 1988 S.C. 58. Counsel then referred to Mooney v City of Glasgow D.C. 1989 S.L.T. 863 and particularly to the passage in Lord Kirkwood's Opinion at 865F, being essentially the passage with which Lord Macfadyen expressed his agreement in Boyce and which has been set out above. Similar agreement had been expressed by the temporary Lord Ordinary (Mr Horsburgh, Q.C.) in Poterala v Uniroyal Tyres Limited 1993 S.L.T. 1072, a case which, like Mooney, was concerned with the disclosure of a named witness's home address dissatisfaction having been expressed with the facility given of precognoscing the witness at his employer's premises.

Mrs Smith submitted that it was appropriate to look at the stage of proceedings which had been reached when an order under section 1(1A) was sought. Leaving aside Poterala, the authorities to which reference had been made were in the main instances in which the party seeking the order had made his application in order that material might be disclosed which might assist him in making his averments more specific. In the present case however the pursuer had not chosen to challenge the specification of the defenders' averments at procedure roll but had agreed to proceed to a proof on those averments. By doing so, the pursuers had accepted the adequacy of the notice given in the pleadings. Section 1(1A) was not intended to supplant the normal practice of written pleadings. Thus, as regards paragraph 1 of the annexation to the motion, the point could have been taken by way of a challenge to the specification of the defenders' averments. Moreover, the matters mentioned in the remaining paragraphs of the annexation were all matters which were essentially within the knowledge of the pursuers and the identity of the defenders' potential witnesses was not necessary or material to the pursuers' definition of their position. In that connection counsel drew attention to the distinction drawn by Lord Macfadyen in Boyce between the first defenders in that case who were not alleged to have been employers of the pursuer but had only succeeded to the liabilities of a defunct company and the third defenders in that case who were themselves alleged to have been the employers. The application for an order against the latter had been refused. The procedure and practice in ordinary proceedings in the Court of Session did not call on a defender to decide on the witnesses likely to be called prior to 28 days before the proof and no sufficient reason had been advanced for departing from that procedure in the present case.

By way of a somewhat separate point, counsel for the defenders drew attention to section 10 of the Contempt of Court Act 1981 and to the passage from the speech of Lord Bridge in X Limited v Morgan-Grampian Limited [1991] 1 A.C. 1 which was quoted in Pearson v Educational Institute of Scotland 1998 S.L.T. 189 at 195. In the view of the terms of the newspapers articles, paragraph 2, 3, 4 and 6 of the annexation to the motion involved the disclosure of the journalistic sources upon which parts of the articles were based. The defenders had a choice whether to lead the evidence of those sources in order to establish their averments at the proof. It had not been suggested by counsel for the pursuers that the identity of the sources from which the terms of the newspaper articles stemmed was essential for the preparation of his case. There were accordingly no interests of justice which could override the defenders' choice as to whether, in due course, to tender the evidence of those sources in support of their averments or rely upon the evidence of the reporter.

In response to Mrs Smith's submissions, counsel for the pursuers pointed out that the cases to which she had referred were concerned in the main with disclosure prior to the closing of the Record in the substantive proceedings. He then submitted that different tests applied after the Record in an action had been closed and proof allowed. He referred to the annotation to Rule of Court 35.2 contained in the Parliament House Book and the discussion in Maxwell on Court of Session Procedure at 233. Mr Jones then pointed out that after the allowance of proof, all relevant documentation pertinent to the proof of the averments was recoverable. If the pursuers could recover all relevant documentation why, asked Mr Jones, should they not be given the identification of the witnesses upon whom the defenders might rely. Since in terms of Practice Note 8/1994 the defenders would have to disclose the identity of the witnesses upon whom they proposed to rely 28 days before the proof he questioned the existence of any reason wherefor they should not make that disclosure now. The practice note did not override the terms of the statute; there was no prejudice to the defenders; and the case was unusual in that there were averments of several incidents of improper familiarity between the pursuers. In relation to section 10 of the Contempt of Court Act, the defenders had not relied on that provision in entering opposition to the motion; it would not do for the defence to say that they might yet invoke it; and in any event, it was in the interests of justice to grant the motion.

Leaving aside for the moment the provisions of section 10 of the Contempt of Court Act 1981, I consider that the arguments put forward on behalf of the defenders are to be preferred. While it is of course correct that in Mooney and in Boyce application was made in terms of section 1(1A) of the 1972 Act in advance of the substantive proceedings, or before closure of the Record, I am in agreement with the view that the discretion given by that statutory provision is one which should be exercised having regard to the particular circumstances of the individual case, it being always for the person seeking an order under that provision to show cause for the making of the order and I consider that the same approach should be followed in an application made after the closure of the Record in the substantive litigation.

Adopting that approach it does not appear to me to be sufficient for an applicant merely to say - as counsel for the pursuer rather did at one point in his response - that since a party will in due course be enjoined by Practice Note 8/1994 to intimate and lodge a list of witnesses if he intends to lead evidence to establish the truth of his averments it would be generally expedient if he were to do so earlier than 28 days before the proof diet. There are no doubt arguments in favour of a standard practice of lodging lists of intended witnesses at an earlier stage in the proceedings but in weighing those and other counter-vailing considerations the Court, in its Practice Note, has selected 28 days prior to the proof diet as being the appropriate point in the procedure in an ordinary action at which disclosure of the parties' intended witnesses should be made. Insofar as Mr Jones referred to the practice in the recovery of documentary evidence after the allowance of proof as support for his plea for earlier disclosure, I would observe that that practice obtained at the time when the Practice Note 8/1994 was issued.

Accordingly whatever views as to the general desirability of the early disclosure of witnesses one might hold, I consider that a decision whether to exercise the powers granted under section 1(1A) of the 1972 Act in an ordinary action must be taken in light of the policy edicted by the Court for such actions in Practice Note 8/94. I therefore consider that one must look at the particular circumstances advanced in each case as a ground justifying disclosure of the identity of witnesses at an earlier stage than that indicated by the policy adopted in the Practice Note.

Adverting to the particular circumstances of this case, the contention of counsel for the pursuers was that the present case was unusual in respect that in pleading veritas the defenders allege several and geographically widespread incidents of alleged marital impropriety and it was apprehended that the 28 day period allowed by the Practice Note 8/94 might be insufficient for the proper precognition of the defenders' witnesses and the making of any subsequent inquiries resulting from that exercise. I am not persuaded that the contention so advanced is sound. To my mind, an allegation of a continuing adulterous relationship is not in itself unusual, at least in the context of consistorial proceedings with which the court are familiar. Although counsel for the pursuer sought to described the defenders' averments of the aspects of the pursuers' relationship whence the inference of adultery is inferred as being "many and wide-ranging" and hence "unusual" I do not accept that categorisation. Apart from paragraphs 1 and 3 of the motion, which to my mind raise matters which could and should have been discussed at Procedure Roll had there been any substance to them, the averments of improper familiarity in the remaining paragraphs essentially concern conduct at a beach in France on the occasion of one film festival and conduct at two subsequent film festivals, each taking place over a restricted period of time, and subject to averments whose scope in terms of time and location is relatively confined. More importantly however it must be borne in mind that essentially all of the averments of familiarity concern matters which must be within the direct knowledge of the pursuers and who themselves should know the accuracy or otherwise of what is averred. There is accordingly no need for the pursuers to precognosce the defenders' witnesses in order to know what their position in relation to the allegations made in the pleadings should be. I am accordingly not satisfied that the circumstances of this case are such that the interests of justice require a departure from the normal practice in ordinary actions. The application for an order under section 1(1A) of the 1972 Act is therefore not justified.

Having reached that view it is unnecessary for me to give further detailed consideration to the parties' submissions concerning section 10 of the Contempt of Court Act 1981. It plainly follows from the conclusion which I have already reached that I do not consider that the interests of justice require disclosure of the journalist sources of the articles, at least at this stage. I would simply observe that, on the face of matters, since the burden of establishing veritas lies with the defenders any decision on their part not to lead the evidence of the primary sources of evidence upon which they say the articles in the newspapers were based would be to their forensic disadvantage. I therefore incline to the provisional view that since failure by the defenders to lead the primary evidential source of their averments of veritas would increase the likelihood of those averments being held to be unproved, some special reason would need to be advanced by the pursuer in order to obtain the compulsory disclosure of those journalistic sources.

In the whole circumstances I grant that part of the pursuer's motion ordaining the defenders to lead the proof and for the rest the motion is refused.