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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Paton v Sarwar [2000] ScotCS 269 (2 November 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/269.html Cite as: [2000] ScotCS 269

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[1] This is an action of defamation, which called before me in procedure roll, in respect of the defender's first plea-in-law seeking dismissal.

[2] The background to the matter relates to certain allegations which the pursuer maintains the defender made against him in the course of a parliamentary election in 1997 in the Govan constituency, which election was eventually won by the defender. Subsequent to his election, the defender was tried on certain criminal charges arising out of his alleged conduct during the campaign, of which charges he was acquitted. However, in the course of that trial and lodged as a Crown production was an affidavit by a Badar Islam, which was presented to me by the pursuer. In that affidavit, certain allegations are made against the pursuer, which he regards as defamatory of him. He therefore claims damages as a consequence of what he refers to as the defamatory and malicious actions of the defender.

[3] Counsel for the defender's attack upon the pleadings and indeed the whole action was fundamental, submitting that there was no basis of relevant fact to support the pursuer's claim for defamation. No attempt, it was said, was made to specify the precise time and place when the alleged defamatory statement was made and more fundamentally, no sufficient allegation of a defamatory statement and its context was made. He referred to Collins v Jones 1955 1 QB 564 and Russell v Stubbs Ltd 1913 SC (HL) 14 per Lord Shaw of Dunfermline at pages 23 and 24. The substance of these decisions was that the precise terms of the alleged defamatory statement if the action was properly to regard as defamation required to be averred and, if necessary, shown to be capable of bearing the innuendo which based the complaint. In the present case it was submitted that no attempt was made event to define the defamatory statement. What was complained about at best was some form of conduct on the part of the defender to the detriment of the pursuer. Specifically, counsel also complained of the absence of causal connection between the alleged malice emitted on the part of the defender and the injury to the pursuer's feelings which he allegedly suffered. Equally, it was not clear what crime it was suggested the pursuer had committed having regard to the fact that in terms of the Representation of the People Act 1983. Late registration of voters did not constitute a criminal offence. It is to be noted that, when replying to me, the pursuer, representing himself, maintained that the crime of which he was suggesting the defender had accused the pursuer, was common law fraud.

[4] Counsel also made a number of detailed supplementary submissions with regard to the relevancy and specification of certain specific averments which were directed to inter alia the following matters:

[5] As will become apparent, I will not require to deal with these specific averments. Suffice it to say that if the case had turned upon the issues that were raised by counsel in this respect, I would have supported each of his detailed submissions.

[6] When the pursuer came to address me, it became immediately apparent that he is wholly misconceiving the legal position of what he alleges to have happened at the instigation of the defender. His real complaint relates to the substance of the affidavit which, of course, is not a statement by the defender but rather by the maker of the document. That in itself is sufficient to indicate, to my mind, that the whole approach to the notion of defamation against that background is misconceived. An action of defamation by definition depends upon a slanderous statement which must be identified and averred. In the present case, all that is averred, is certain conduct on the part of the defender as explained in the affidavit by the maker of that document, Mr Islam. What the pursuer appears to be complaining of is that the remarks which were attributable to the pursuer in the affidavit as having been made to Mr Islam were instigated or created by the defender.

[7] If such conduct, assuming it to be proved, amounts to a legal wrong justifying a remedy is not a matter I need to consider because this case is purely focused on the question of defamation. In my opinion, it has not been succinctly averred to a sufficient standard to give due notice to the defender as to what is the precise slander alleged, in terms of pointing to the issue of a defamatory statement. The allegations are far too vague and inspecific to give fair notice to the defender of the precise defamatory statement of which he has complained or if more than one, the relevant number equally are not precisely identified

[8] In these circumstances I do not consider that the pursuer's pleadings give fair notice to the defender of the case he has to meet under the charge of defamation. I regard therefore the case as hopelessly irrelevant and it will be dismissed. The defender's first plea-in-law is sustained.