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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McCue v (First) Scottish Daily Record & Ors [2000] ScotCS 236 (25 August 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/236.html Cite as: [2000] ScotCS 236

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John McCue seeks damages for defamation from the publishers of the Sunday Mail and one of their journalists, Norman Silvester. As a result of earlier procedure his claim is now restricted to solatium for injury to feelings and damage to reputation. He maintains that an article in the Sunday Mail on 9 July 1995 falsely implied that he was directly involved in serious criminal activity or at the very least had connived at it. A number of issues arose in the course of the proof and were addressed in parties' submissions. However, only if the article bore the innuendo claimed by the pursuer would the other issues arise.

The article had an "Exclusive" tag and was written by the second defender. In the edition of the newspaper relied upon by the pursuer it occupied a prominent place and had a striking headline in these terms:

followed by:

The material passages of the article are these:

The article was accompanied by a photograph showing the Cumberland Arms pub with a police car apparently outside.

Initially Mr McCue, who conducted his own case, claimed that the article was defamatory in three separate ways. However, in the course of the proof he departed from two of these and confined his submissions to the third. The two points departed from related to the assertion that the pursuer had "strong connections with reformed killer Jimmy Boyle", and to what the pursuer suggested was a contrived photograph designed to give the impression of a police car sitting outside the pub when it was in fact outside the adjacent police office. On the first point Mr McCue ultimately accepted that he did have what could be described as "strong connections" with Jimmy Boyle and that these were not said in the article to be other than family ties. The only reference in that passage to criminal activity relates to the past activity of Jimmy Boyle. There is no suggestion that the pursuer was in any way involved in that activity. So far as the photograph is concerned the pursuer ultimately conceded that he was not in a position to establish that it was other than a genuine shot of the police car and the pub nor that, even if it was contrived in some way, it falsely impugned his character.

That the latter point featured at all in this case probably owes much to another unusual aspect of the case, which in the end was not of great significance but might at first blush be seen as important. There was in fact no raid on the Cumberland Arms at all. The raid took place at premises known as "Suntowers". Sunbeds had recently been installed there. The premises were shortly to be opened as a hairdressing salon with sunbed facilities. When the raid took place the premises were already open unofficially and had occasional customers. The pursuer was involved in setting up the business. He claimed that he was one of six partners and acknowledged that he had taken a very active part in establishing the business. However, the newspaper's glaring mistake of attributing the raid to the Cumberland Arms was in itself of no significance and was not relied upon by the pursuer as such, since his case depends on establishing the innuendo of his involvement in criminal activity whether or not the locus is accurately identified. The only real significance of the mistake about the locus is that the pursuer's case has been made clearer, because there is no doubt that he was, at the time, the sole tenant and licensee of the Cumberland Arms and therefore in control of the premises, whereas his exact relationship with Suntowers and the extent of his control of these premises were in dispute. In the end it has not been necessary to determine that dispute. However, I think I should indicate that the evidence, particularly that of Jennifer Douglas, a property manager with the landlords of the premises, Glasgow City Council, indicated to me that the pursuer was the dominant "partner" in a loose liaison of persons involved in the establishment of the proposed business. The others were the existing tenant of the premises and four ladies who would staff the premises. He signed the agreement for the sunbeds and was sequestrated in the name "John McCue t/a Suntowers" as a consequence. The pursuer was the moving force.

The first question to be determined is whether the article states or implies that the pursuer was actively involved in criminal activity or had connived at it. In his pleadings the pursuer avers at page 9B-C that the article:

and at page 14C-D:

In his final submission he argued that at the very least the article implied that he had turned a blind eye to criminal activity in his premises.

Since there emerged from the evidence no particular circumstances affecting the pursuer or surrounding the article which the pursuer relied upon as giving the article a defamatory meaning, that question falls to be determined by consideration of the words themselves. The question for me is whether the article, as it would be read by a reasonable member of its ordinary readership reading it in a fair-minded way, would be read as an attack on the character or reputation of the tenant and licence-holder of the Cumberland Arms. That approach is consistent with the only authority to which I was referred by Mr Ellis, counsel for the defenders, viz. Bernhardt v Adams 1912 S.C. 748 at 752-3.

In my opinion the article would not be read by such a reader as implicating Mr McCue as the licence-holder and tenant in dealings with counterfeit currency or with drugs. In reaching my conclusion I have given the expression "dealings" the widest possible interpretation, to include being the controller of the premises but turning a blind eye to the use thereof by others for concealing counterfeit currency or handling and concealing drugs. The article does not refer to the licensee or tenant. In two different places it is said that four men and a woman were detained by police. There is no suggestion that Mr McCue was one of them. The only indication given in relation to drugs is that a quantity of drugs was recovered. No other reference is made to drugs. The only specific statement made in the article about the connection between the counterfeit currency and the premises is the statement that undercover cops found a stash of more than £50,000 in forged notes in the course of a raid on the Cumberland Arms. Mr McCue founded strongly on the use of the expression "a stash of more than £50,000 in forged Bank of England £20 and £10 notes". There is no doubt that the word "stash" implies secrecy or concealment. But without any indication of where the notes were found it would not in my opinion be reasonable to infer from that statement read in the context of the whole article a link between the counterfeit money and the tenant and licensee of the premises. A link between the allegation and the tenant and licensee could easily have been made. For example, a reference to Mr McCue as one of those detained by the police, when read in the context of other statements in the article, might well change the meaning of the article to bear the innuendo that he was in fact involved in some way with the currency. In this article as it stands there is no basis for making that link.

It follows that I consider that Mr McCue has read the article in an unduly sensitive way. There are a number of possible explanations for that. Perhaps it was the result of his being alerted to the article before he read it. His brother-in-law and sister who live in England read the article on the morning it was published. They drew it to the attention of a cousin who then contacted Mr McCue about it before he had seen it. Even in his account of what members of his family said, however, Mr McCue did not indicate that they had read the article as implicating him. Perhaps Mr McCue was unduly sensitive at the time about even the remotest suggestion of a link between him and Jimmy Boyle or criminal activity. Mrs McCue was the mother of a son and a daughter by Jimmy Boyle. The children were very young when she married the pursuer. Together they brought both up as their family. As the article says, the son James was murdered the year before. He was a troubled young man. His death was a tragedy for the family. Mr and Mrs McCue went through difficult times thereafter. Or perhaps it was the glaring inaccuracy of the piece. It is no credit to the Sunday Mail that the article is so full of mistakes including, according to Mr McCue, the suggestion that Jimmy Boyle had been married to Mrs McCue. While an error of that kind might easily and understandably be made, it is very difficult to understand how a newspaper with the resources of the Sunday Mail should come to describe in a prominent article a police search of a public house which did not take place and to confuse it with a search at other premises of an entirely different nature. The attempt by Mr Silvester, an experienced journalist, to attribute blame for that to inaccurate briefing by a Detective Superintendent of Strathclyde Police was unconvincing. I did not accept his evidence on that. Shortly after seeing the article Mr McCue instructed solicitors to complain to the newspaper and seek a retraction. His complaints were ignored. It was not until the action was raised in 1997 that any check was made even of the basic inaccuracy in identifying the premises which had been drawn to the attention of the newspaper in the initial complaint. The article was the product of sloppy journalism. That was compounded by an arrogant disregard for the pursuer's legitimate complaint about the inaccuracy of the article. Regrettably, in the course of the proof unsuccessful attempts were made to support other allegations.

It is plain from the affidavits presented by Mr McCue and sworn by a wide variety of people known to him through his good work in the local community in Gorbals, Hutchesontown and Oatlands, and including in their number Members of Parliament and the Scottish Parliament, leading local councillors and other prominent people, that he has throughout remained in high regard among those whose opinions matter to him. That that is so is entirely consistent with the view I have formed that the article does not impute criminal conduct to the pursuer. Having reached that conclusion I do not consider any useful purpose would be served by my reviewing the other issues raised before me, all of which depended on a different decision on this initial point. I shall accordingly sustain the third plea-in-law for the defenders, repel the pleas-in-law for the pursuer and pronounce decree of absolvitor. I do not find it necessary to deal with the other pleas-in-law for the defenders.

I cannot leave this case without commenting on the conduct of the action by both the pursuer personally and Mr Ellis for the defenders. Because of his inexperience in conducting civil litigation Mr McCue found himself from time to time in the position of having to seek the Court's indulgence to consider points or receive documents at a far later stage than would normally be the case. The defenders also sought to lodge productions which ought to have been available much earlier. In every instance Mr McCue and Mr Ellis were happy to discuss the issues that arose and almost always were able to agree to accommodate one another. On the occasions when that was not possible the matter was argued in a dignified and restrained way which did great credit to both in view of the number of procedural hiccups that there were in the course of the proof. It is a fairly common experience in this Court that some party litigants do much to confuse and weaken their own cases by adopting entrenched and unreasonable positions before the Court. I am extremely grateful to Mr McCue for the dignity, restraint and reason he displayed in his conduct of his case, and to Mr Ellis for the courteous way in which he accommodated Mr McCue's inexperience.