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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Nicol v. Caledonian Newpapers Ltd & Anor [2002] ScotCS 106 (11th April, 2002) URL: http://www.bailii.org/scot/cases/ScotCS/2002/106.html Cite as: [2002] ScotCS 106

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Nicol v. Caledonian Newpapers Ltd & Anor [2002] ScotCS 106 (11th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LADY PATON in the cause ALLAN MACKENZIE NICOL Pursuer; against (FIRST) CALEDONIAN NEWSPAPERS LIMITED and (SECOND) ALLAN CALDWELL Defenders   ________________

 

 

Pursuer: Bovey, Q.C.; Devlin; Lindsays S.S.C. (for O'Donnell Vaughan, Solicitors, Glasgow)

Defenders: Jones Q.C.; Ellis; Balfour & Manson (for Bannantyne, Kirkwood, France & Co, Solicitors, Glasgow)

11 April 2002

Judicial Proceedings (Regulation of Reports) Act 1926

1. The long title of the Judicial Proceedings (Regulation of Reports) Act 1926 (c.61) is in the following terms:

"An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals."

Thereafter the Act provides:

"1. RESTRICTION ON PUBLICATION OF REPORTS OF JUDICIAL PROCEEDINGS. - (1) It shall not be lawful to print or publish, or to cause or procure to be printed or published -

1. in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals;
2. in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or [an action of adherence or of adherence and aliment], any particulars other than the following, that is to say:-
1. the names, addresses and occupations of the parties and witnesses;
2. a concise statement of the charges, defences and countercharges in support of which evidence has been given;
3. submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
4. the summing-up of the judge and the finding of the jury (if any) and the judgement of the court and observations made by the judge in giving judgement:

Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.

(2) If any person acts in contravention of the provisions of this Act, he shall in respect of each offence be liable, on summary conviction, to imprisonment for a term not exceeding four months, or to a fine not exceeding five hundred pounds, or to both such imprisonment and fine:

Provided that no person, other than a proprietor, editor, master printer or publisher, shall be liable to be convicted under this Act ...

(4) Nothing in this section shall apply to the printing of any pleading, transcript of evidence or other document for use in connection with any judicial proceedings or the communication thereof to persons concerned in the proceedings, or to the printing or publishing of any notice or report in pursuance of the directions of the court; or to the printing or publishing of any matter in any separate volume or part of any bona fide series of law reports which does not form part of any other publication and consists solely of reports of proceedings in courts of law, or in any publication of a technical character bona fide intended for circulation among members of the legal or medical professions..."

Press report of a divorce action

2. In 1996, the pursuer was a party to a divorce action. On 10 September 1996, an article appeared in the Evening Times newspaper, published by the first defenders. The article had been written by a journalist, the second defender. As the pursuer avers in his pleadings, the article "purported to be an account of proceedings in a proof in [the] divorce action at the instance of the pursuer's wife which had been heard at Glasgow Sheriff Court ... Said article was intended to and did defame the pursuer in that it contained allegations that the pursuer had assaulted his wife on several occasions, a suggestion that he was evading his responsibility to his children, and an allegation that he was a liar ...". The article did not mention the pursuer's opening statement to the sheriff to the effect that, although the merits of the divorce action were not being contested, the allegations made by the pursuer's wife were not accepted by him as true. Furthermore, the article was published before the sheriff had made findings-in-fact and issued his judgement.

Action for defamation

3. In July 1997, the pursuer raised the present action for defamation, seeking damages against the first defenders as publishers of the Evening Times newspaper, and against the second defender, the journalist involved. The first and second defenders combined to lodge one set of defences.

Defence of qualified privilege

4. The defenders' fifth plea-in-law is in the following terms:

"5. The article being a fair and accurate report of court proceedings to which qualified privilege attaches, the defenders should be assoilzied."

In support of that plea-in-law, the defenders aver in Answer 2, at page 13E-14A:

"In any event, esto the allegations contained in the article are false and defamatory of the pursuer (which is denied) the article was a fair and accurate report of proceedings in court and as such covered by qualified privilege. The defenders did not publish the article maliciously."

5. For his part, the pursuer avers that the writing and publication of the article was malicious. In Article 4 of Condescendence, the pursuer offers to prove that his wife was friendly with a colleague of the second defender, and that his wife arranged for the attendance of the second defender in court. He further offers to prove that the article went far beyond the boundaries set by the Judicial Proceedings (Regulation of Reports) Act 1926; that despite the second defender's attention having been drawn to the contents of the 1926 Act, he persisted in his detailed reporting of the case; that it was malicious not to report the pursuer's opening statement to the sheriff that although the merits of the divorce action were not being contested, the allegations made by his wife were not accepted by him as factual; that the article was published in advance of the sheriff's judgement; and that in all the circumstances the publication of the article was malicious.
6. In response, the defenders aver in Answer 4, at page 16F-18C:

"4. Admitted that the publication of details of evidence in divorce cases is prohibited by the Judicial Proceedings (Regulation of Reports) Act 1926 which restricts the reporting of divorce actions. Admitted that in terms of section 1(b) of said Act the reporting of such proceedings is restricted to reporting the names, addresses and occupations of parties and witnesses; a concise statement of the charges, defences and counter-charges in support of which evidence has been given; submissions on points of law and matters relating to the judgement of the court. Admitted that the article reported details of the evidence given. Admitted that the article was published in advance of the sheriff's judgement in the case and accordingly without the benefit of the court's adjudication on the evidence led. Quoad ultra denied. Explained and averred that the proceedings between the pursuer and his wife were newsworthy. As hereinbefore averred the pursuer's wife was alleging that [he] had been violent towards [her]. The pursuer himself was a former procurator fiscal, who had been required to prosecute offenders for crimes including assault. In court the pursuer had not contradicted his wife's evidence that he had used violence towards her or that he had made false representations to the Child Support Agency. He also made the specific admissions referred to in Answer 2 above. There was a legitimate public interest therefore in the reporting of the proceedings."

Debate

7. During a three-day debate, on 5 October and 14 December 2001, and 1 February 2002, counsel for the pursuer invited the court to sustain the pursuer's third plea-in-law, which was in the following terms:

"3. Said article not having been fair nor accurate as condescended upon and publication thereof, being in breach of the Judicial Proceedings (Regulation of Reports) Act 1926, not having been for a legitimate purpose, the defenders are not entitled to rely on the defence of qualified privilege and the defenders' averments relating thereto should not be remitted to probation."

Quoad ultra, counsel for the pursuer sought a proof before answer.

8. By contrast, counsel for the defenders sought a jury trial. Counsel invited the court to repel the defenders' first two pleas-in-law (relating to relevancy and specification), and the pursuer's third plea-in-law (quoted above), and to allow issues.

Submissions for the pursuer

Defence of qualified privilege not open to the defenders as a result of their breach of the 1926 Act

9. Senior counsel for the pursuer submitted that the averments relating to qualified privilege were irrelevant, and should be excluded from probation. It was for the defenders to show that their report was fair and accurate: Pope v. Outram & Co., 1909 S.C. 230, at page 235; Cunningham v.The Scotsman Publications Ltd., 1987 SLT 698 at page 699. As the article was a violation of the 1926 Act, the defence of qualified privilege was not open to the defenders. An essential prerequisite of the defence of qualified privilege was that the news report had been lawfully published: Richardson v. Wilson (1879) 7 R. 237, the Lord President at pages 241-242, also dicta of Lord Deas, Lord Mure, and Lord Shand. A report published in breach of the 1926 Act was by definition unlawful: Moynihan v. Moynihan [1997] 2 F.C.R. 105, Sir Stephen Brown. The pursuers could not seek the protection of the court for such unlawful conduct: Gatley, Libel and Slander, 8^th ed. paragraph 596; 9^th ed. paragraph 14.88; and Professor Walker, Delict, 2^nd ed. page 834, note 80. The plain terms of the 1926 Act permitted only specified matters to be published, and the defenders' article went beyond these matters, extending to accounts of the evidence. The Act set out, in section 1(1)(b)(i)-(iv), the way in which publication of reports was regulated by Parliament. If a criminal charge had to be framed, it would only be necessary to show that the terms of the Evening Times article fell outwith paragraphs (i) - (iv). It would not be necessary to show any actual injury to public morals.
10. The prohibitions in the 1926 Act were clear and unambiguous. There was no need to refer to Hansard or Pepper v Hart [1993] AC 593. The long title of the Act could not be used to restrict or restrain the meaning of the Act. In any event, the terms of the long title were not against the pursuer's argument: it simply introduced an Act which was a means whereby public morals were to be protected. Even if the long title were thought to be against the pursuer, the terms of section 1 were clear. If statutory terms were clear, one could not use the purpose or mischief or long title of the Act to contradict the clear terms. The long title was only of assistance in resolving a difficulty or ambiguity. The long title could not affect the plain meaning of the Act: Maxwell, The Interpretation of Statutes, 12^th ed. pages 3-5; Craies, Statute Law, 7^th ed. page 193-195. The mischief aimed at by the Act was the prevention of injury to public morals by the publication of unsavoury details from judicial proceedings: Friel v. Scott, 1999 S.L.T. 1384, Lord Justice-General Rodger at page 1386. The Act's purpose was achieved by enforcing compliance with section 1(1)(b). Morals in this context meant "moral habits or conduct, habits of life in regard to right and wrong conduct", as well as specifically sexual conduct: Oxford English Dictionary, 2^nd ed., page 1068 definition 7; Tudhope v. Barlow, 1981 S.L.T. (Sh.Ct.) 94, Sheriff Macphail at page 97. The article in the present case contained allegations that the pursuer was a liar and a wife-beater. Publication of such an article affected public morals. If Parliament had wished, it could have restricted the Act to matters of an obscene or corrupting nature: cf. Tudhope v. Barlow, cit. sup. The conduct alleged against the pursuer fell within mischief at which the Act was directed. But in any event, the mischief at which the statute was aimed was immaterial: publication having been prohibited by statute, privilege could not be claimed. The scheme of the Act, and particularly section 1(1)(b), gave an exhaustive list of the matters which could be published without injury to public morals. It was not open to the defenders or to the court to set aside Parliament's enactment of the manner in which public morals were to be protected.

In any event, defence of qualified privilege not open to defenders because publication malicious

11. Counsel further contended that, even if the defenders were in principle entitled to claim qualified privilege in respect of an allegedly fair and accurate report, they were not entitled to privilege if the publication was malicious. The context in which the issue of malice had to be assessed was a balance between the public interest in having an effective remedy against defamation, and the competing public interest in frank and free communication about certain issues, where there was a duty to perform, or an interest to protect. When there was such a duty or an interest, publication in good faith amounted to publication on a privileged occasion: Horrocks v. Lowe [1975] A.C. 135, Lord Diplock at page 149D, quoted by Lord Keith in Fraser v. Mirza, 1993 SC (HL) 27 at page 32D. But it could not be said that a publication rendered unlawful by statute was in good faith. Nor could it be maintained that publication in such circumstances was made in the performance of a duty. The defenders could not maintain that their assessment of the public interest outweighed Parliament's assessment of the public interest. Although section 1(2) of the 1926 Act restricted those who could be prosecuted, the unlawfulness declared in section 1(1) was unrestricted.

Defence of qualified privilege not open to the second defender (the author of the article)

12. Counsel submitted that section 1(1) of the 1926 Act extended to the author of the article, as well as to the publishers. A journalist employed by the first defenders submitted an article to a publisher for the purpose of publication, and in so doing, was a "cause" of the publication: cf. Khaliq v. H.M. Advocate, 1984 SLT 137, Lord Justice-General Emslie at pages 143, 144. In any event, by invoking the defence of fair reporting, the author was associating himself with the act of publication. Accordingly the second defender was also in breach of the 1926 Act, and not entitled to plead qualified privilege.

Averments to be excluded from probation

13. Counsel for the pursuer concluded by submitting that the pursuer's third plea-in-law should be sustained; the defenders' fifth plea-in-law (relating to qualified privilege) should be repelled, and certain averments should be excluded from probation, namely (a) the defenders' averments in the last two sentences of Answer 2 (pages 13E-14A, from "In any event, esto the allegations" to "the article maliciously"), (b) the whole of the pursuer's averments in Article 4 of Condescendence, and (c) the defenders' averments in Answer 4. In the event that the court refused to exclude any averments from probation, a proof before answer on the whole pleadings should be allowed.
14. Counsel added that if, contrary to the pursuer's submissions, the case were to be sent to jury trial, the first and second pleas-in-law for the defenders would require to be repelled.

Submissions for the defenders

The effect of the 1926 Act

15. Junior and senior counsel for the defenders, in their respective submissions, argued that the proper starting-point was the principle that a fair and accurate report of judicial proceedings benefited from the common law protection of qualified privilege. The 1926 Act did not remove that protection. The 1926 Act, properly construed, was concerned with public morals, public law rights, and public prosecutions. It was not intended to innovate upon existing private law rights of individuals. The Act did not mention any change in the private law existing between the publisher and the person allegedly defamed. There was no such mention, for the reason that the Act did not intend to alter private law rights. The 1926 Act was not concerned with protecting private law rights or reputations of persons involved in divorce proceedings. The Act concerned public morals only.
16. Counsel referred to Lonrho Ltd. v. Shell Petroleum Co. Ltd. [1982] A.C. 173, Lord Diplock at page 185, as authority for the proposition that where a statute imposed only criminal penalties, the statute could not be enforced in any other way. Even if the pursuer averred circumstances which, if proved, could justify a prosecution of the defenders, that would not assist him in the present case. The 1926 Act permitted criminal sanctions to be taken against a limited number of people: it did not innovate on the common law. The wording and focus of the 1926 Act, including the long title, made it clear that it was a statute directed to the protection of public morals. There was no mention in the long title of private rights, nor even a phrase such as "related matters". While it was accepted that the long title could not change wording appearing elsewhere in the Act, the long title could be used where there was ambiguity or where the statutory language was not plain: Craies, Statute Law page 193. The primary purpose of s.1(1) was to prevent indecent material reaching public attention. It was a prohibition against printing and publishing: that was consistent with protection of the public as a whole, not with protection of private individuals. Parliament had chosen a narrow strike to cure the mischief. Those who "printed" or "published" were subject to scrutiny. Section 1(2) limited the persons who were subject to the criminal sanctions. Again, this was consistent with a focus upon newspaper publication, and the prevention of widespread dissemination of material through newspapers. The second defender was a journalist. He was not subject to the sanctions envisaged. Nor did the Act affect other means of communication, such as verbal communication. If the Act were truly concerned with the privacy of divorce proceedings, one might expect it to cover all communications within a divorce action.
17. Section 1(1)(b) made provision for what was and what was not prohibited in divorce proceedings. It was significant that permitted material could contain defamatory matter. For example, a "concise statement of the charges, defences and countercharges" could be defamatory, as could the court's judgement. This was another indication that the statute was directed to the protection of public morals, not the privacy of individuals involved in matrimonial cases. The statute did not make any change in the underlying law of defamation. It was not surprising that an Act, triggered by public concern about sensational divorces, set out in detail what could or could not be published: but the detail did not suggest that the Act was concerned with anything other than public morals. The Lord Justice General in Friel v. Scott, 1999 S.L.T. 1384, at pages 1385L et seq., explained the circumstances in which the Act came to be enacted. In Friel, section 1(1)(b) was regarded as subsidiary to section 1(1)(a). At page 1386F, the Lord Justice General commented that "the aim of the Act is therefore to prevent injury to public morals throughout Great Britain by the publication of unsavoury matters and details from judicial proceedings, wherever they may be held." Thus it was the point of distribution, and not the circulation, which was relevant. The purpose of the Act was not to protect a limited class of persons involved in matrimonial problems, nor to alter the private law rights of persons engaged in such proceedings. The purpose was to prevent injury to the morals of the public at large.
18. One authority which had not been cited in Friel was the case of Duchess of Argyll v. Duke of Argyll [1967] Ch. 302. The pursuer's counsel had traced this authority after the first day of the debate (5 October 2001). At pages 337 to 341, Ungoed-Thomas J. considered the 1926 Act. He commented that the limited number of persons who were liable to criminal sanctions suggested that others who transgressed the provisions would be liable in civil proceedings. However counsel for the defenders disagreed with these dicta and submitted that Parliament intended a very limited means of enforcing the prohibition. Had Parliament not so defined those subject to criminal sanction, anyone who set the type-face, or who carried bundles of newspapers, would be liable to the criminal sanctions.
19. Ungoed-Thomas J. further decided, at pages 341-342, that section 1(1)(b) prohibited the publication of certain details even although they were not injurious to public morals. He therefore concluded that part of the purpose of the Act was to protect those involved in divorce proceedings. However counsel for the defenders submitted that: (1) Ungoed-Thomas J. had given insufficient weight to the long title of the Act; (2) The Act had been thought necessary by Parliament to resolve the problem of publication of salacious divorce material. The mere fact that as a result there was a detailed list of permitted details in relation to divorce actions (in contrast with other actions) did not mean that private law rights had been given to divorce participants. (3) Some details were permitted to be published - including a judgement, which could contain descriptions of what parties had alleged and/or succeeded in proving. If Parliament had intended to protect divorce litigants, it would have been more logical not to permit any such details to be published.
20. Counsel further pointed out that the mere fact that, as a result of the 1926 Act, some individuals benefited from a degree of protection did not mean that Parliament had intended to protect private individuals. The situation was very different from, for example, the Factories Acts, where the main purpose of the legislation was to improve workers' conditions. Courts had held such workers entitled to sue in terms of the Factories Acts. By contrast it was not clear what protection litigants obtained from the 1926 Act. Section 1(1)(b) offered a far wider protection - to anyone named in a matrimonial writ - yet the material permitted in terms of section 1(1)(b) could still be damaging to an individual. If protection of divorce litigants had been the intention of Parliament, it would have been more logical to prohibit the publication of any detail. The fact that the Act incidentally provided protection to some persons did not mean that Parliament intended that private individuals should be protected (in contrast with the Factories Acts, whose main purpose was to improve workers' conditions). The decision of Ungoed-Thomas appeared not to have been cited in Lonrho Ltd. v. Shell Petroleum Co. Ltd., nor in Solomons v. Gertzenstein Ltd. [1954] 2 Q.B. 243, nor in Moynihan v. Moynihan [1997] 2 F.C.R. 105. Ungoed-Thomas J. referred to Windeatt v. Windeatt [1962] 1 W.L.R. 527. However that authority, while noting that as a matter of fact a person associated with a matrimonial case was protected by the 1926 Act, did not go so far as to say that the Act was passed for the purpose of giving such protection.
21. Counsel invited the court to prefer the reasoning and the dicta of the Lord Justice General Rodger in Friel v. Scott and the dicta of the House of Lords in the Ampthill Peerage case [1977] A.C. 547, to the views of Ungoed-Thomas J. in Duchess of Argyll. The reasoning in Friel was superior. Also it was important to bear in mind that the Duchess of Argyll case concerned an interlocutory injunction. The circumstances justifying the grant of such an injunction might be different from the circumstances in which damages could be recovered: cf. Lord Jauncey at page 664L in Noble's Trs. v. Economic Forestry (Scotland) Ltd., 1988 S.L.T. 662.

European Convention on Human Rights

22. Counsel for the defenders then argued that where it was possible to read an Act in a way consistent with the European Convention on Human Rights (ECHR), it should be so read.
23. Article 10 of the ECHR provided "1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
24. Counsel for the defenders submitted that to give the 1926 Act an extended meaning which carried into the law of defamation a restriction on qualified privilege in relation to reporting of public proceedings was not a "necessary" restriction, and went beyond a reasonable balance. It was necessary in a civilised society to report what went on in court, except in very special circumstances. If someone was guilty of bad behaviour, and that was exposed in open court, to make reporting of such behaviour sound in damages would be to go beyond what was intended by the 1926 Act. In particular, it was not necessary to look to damages in order to protect public morals. Parliament had provided criminal sanctions. Nor was it necessary to use the Act to restrict the law of qualified privilege in order to protect the reputation of others, because that matter was well managed by the law of defamation. What was said in court was public. If however a person could show malice, the privilege which would otherwise exist would fly off.

The position of the second defender (the journalist)

25. Counsel for the defenders submitted that the 1926 Act did not alter the private law relating to the second defender, the journalist. Firstly, the second defender was not one of the persons made subject to criminal sanctions. Secondly, he did not "cause or procure" publication. Had the 1926 Act been intended to extend to writing as well as to printing and publishing, it would have been easy for Parliament to say so. Following the reasoning in Friel, "publication" occurred when the newspaper was distributed to the world: so publication took place at the distribution point. Given the nature of the acts prohibited, no journalist "caused" or "procured" the initial distribution, and there was nothing in the pleadings to suggest that the second defender had caused or procured the printing or publishing. Accordingly it was impossible to say at the stage of debate that the second defender should not be entitled to claim qualified privilege.

Limits of the concept of unlawfulness

26. Counsel for the defenders contended that the concept of unlawfulness was of little assistance when deciding whether or not private law rights had been innovated upon. Professor Walker in a passage entitled "Unlawfulness" in his textbook on Delict (2^nd ed.) at pages 36-38 pointed out that the concept was unhelpful and confusing in the context of trying to decide whether something was a delict or civilly actionable. The fact that something was unlawful in terms of the 1926 Act did not assist in deciding if private law rights had been created. To hold that any breach of the prohibitions imposed by the Act rendered the publication "unlawful" would have absurd results not intended by the Act: for example, an Edinburgh solicitor who listened to the divorce proof and wrote a letter to a local solicitor reporting on the evidence, would have achieved a "publication" in the law of delict. Normally that publication would be privileged, but if the 1926 Act innovated upon private law acts, then the solicitor would not be entitled to rely upon qualified privilege. The saving provision in section 1(4) applied only to printing, such as the printing of the Closed Record, or a transcript of evidence. Similarly a newspaper editor who published material from a divorce judgement, keeping within the list in section 1(1)(b), but then adding the judge's name, would find that the article had lost its qualified privilege. Parliament had not intended such results, and yet such results would occur if the pursuers' construction were adopted. The clear purpose of the Act was to protect public morals. Thus offences had been created in relation to the printing and publishing of newspapers. The Act was not intended to innovate upon private law rights. The common law relating to the publication of court proceedings was therefore unaffected by the Act.

Response to authorities cited by counsel for the pursuer

27. Counsel then turned to the authorities cited by counsel for the pursuer. Richardson v. Wilson (1879) 7 R. 237 (with particular reference to the Lord President at page 241 and Lord Shand at page 243) was a decision relating to whether or not a document had been made public. "Lawful" and "illegitimate" were used in that context, and did not provide any guidance in the present case. Moynihan v. Moynihan [1997] 2 F.C.R. 105 simply decided that the criminal sanctions for a contravention of section 1(1)(b) applied, whether or not the material published was salacious. This result followed from the means or mechanism which had been adopted to protect the public. But the case did not cast any light upon the law of defamation. Gatley, Libel and Slander (8^th ed. paragraph 596 and 9^th ed. paragraph 14.88) and Walker, Delict (2^nd ed) page 834 note 80, simply gave those writers' views that publication of material prohibited by the 1926 Act might result in loss of qualified privilege. However neither textbook quoted authority, and the passages had been written without the benefit of full argument. Lord Keith in Fraser v. Mirza, 1993 SC (HL) 27 at page 32 (quoting Lord Diplock) was of limited assistance when considering the well-established law relating to reports of proceedings in open court. The discussion did not provide guidance in relation to the 1926 Act.
28. The question of motive and malice came after the stage of deciding whether or not the occasion was privileged. The onus of proof was on the person alleging malice. Counsel for the pursuer was wrong to suggest that malice was sufficiently averred in the pleadings by averring a breach of the 1926 Act. For malice to be established, the pursuer had to show that the contravention could not have occurred as a result of honest misbelief. Establishing that there had been a breach of the 1926 Act might be a factor in assessing whether there had been malice, but it was not conclusive of malice. At the stage of debate, the pursuer would have to show that malice was the only inference which could be drawn. That had not been achieved in the present case. Some of the pursuer's averments on this matter were denied by the defenders (for example, the averment at page 16C-D that "There could not, therefore, be any legitimate purpose in its publication."). The defenders' position was that there was a question of public interest in the publication of the proceedings. Accordingly there were issues of fact to be decided. Moreover, while ignorance of the law was no defence, not everyone could be presumed to know the law. Such a distinction was of importance in the question of malice, for someone might carry out actions which were proscribed and therefore have no defence to a complaint or prosecution based upon his actions, yet his actions might not have been motivated by malice: cf. dicta of Lord Bingham quoting Maule J. at page 997 paragraph [34] of Millar v.Dickson, 2001 SLT 988: "There is no presumption in this country that every person knows the law...".
29. Counsel for the pursuer had referred to Khaliq v. H.M.Advocate, 1984 SLT 137, in relation to the question whether the second defender, a journalist, had caused or procured publication. The defenders' contention was that a journalist such as the second defender did not cause or procure publication. In any event, that question was one of fact which could not be decided at a debate on relevancy. Accordingly, even if the defenders' contention were wrong, the question could not be decided at the stage of debate, and (whatever the court's views about the 1926 Act) the defence of qualified privilege could not be excluded in relation to the second defender at debate. If the court ultimately reached one view about the exclusion of the defence of qualified privilege for one defender, and a different view for the other defender, the practical result would be that the defenders would have to amend their pleadings at page 13E.
30. In conclusion, counsel for the defenders invited the court to repel the first and second pleas-in-law for the defenders and the third plea-in-law for the pursuer, and quoad ultra to allow issues on the pleadings as they stood.

 

Reply on behalf of the pursuer

Pursuer's case based on common law, not the 1926 Act

31. In response, senior counsel for the pursuer pointed out that the defenders' argument was based upon the principles set out in Lonrho Ltd. v. Shell Petroleum Co. Ltd., cit. sup., For example, Lord Diplock at page 183 stated that:

"...it is well settled by authority of this House in Cutler v. Wandsworth Stadium Ltd. [1949] A.C. 398 that the question whether legislation which makes the doing or omitting to do a particular act a criminal offence renders the person guilty of such offence liable also in a civil action for damages at the suit of any person who thereby suffers loss or damage is a question of construction of the legislation."

However in the present case, the pursuer was not seeking damages in respect of a breach of the 1926 Act. The pursuer could have done so, but had chosen not to. The pursuer's claim was founded on common law. As the defenders had advanced a defence of qualified privilege, the pursuer was invoking the 1926 Act simply to ascertain the nature and extent of the defence. The pursuer was not using the 1926 Act as a sword, but as restricting the defenders' ability to use qualified privilege as a shield. A parallel approach could be found in X v. Bedfordshire County Council [1995] 2 AC 633, Lord Jauncey at pages 728G-729E, and Lord Browne-Wilkinson at page 730H:

"Private law claims for damages can be classified into four different categories, viz. (A) actions for breach of statutory duty simpliciter (i.e. irrespective of carelessness); (B) actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action; (C) actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it; (D) misfeasance in public office, i.e. the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful ..."

32. The matter in Lonrho Ltd. v. Shell Petroleum Co. Ltd. was a Category A issue. If one had to categorise the issue in the present case, the most appropriate category would be category C - fundamentally a common law duty with some interaction with statute. Category A concerned breach of statutory duty simpliciter. The normal rule was that breach of a statute did not give rise to a private law action. Relevant factors to be taken into account included whether there was no other remedy, and what were the means of enforcing the statute. As Lord Diplock said at page 731 of X v. Bedfordshire County Council:

"However, the mere existence of some other statutory remedy is not necessarily decisive. It is still possible to show that on the true construction of the statute the protected class was intended by Parliament to have a private remedy. Thus the specific duties imposed on employers in relation to factory premises are enforceable by action for damages, notwithstanding the imposition by the statutes of criminal penalties for any breach: see Groves v. Wimborne [1898] 2 QB 402".

33. So far as category B was concerned, as was pointed out at page 732C-D, careless performance of a statutory duty in general gave no common law right of action. Under reference to pages 732-735, counsel submitted that, in the present case, although the defence invoked was not a statutory defence, the statute provided a measure of the defence. So the measure of the qualified privilege to which the defenders were entitled depended upon compliance with the statute. The correct approach in the present case was as outlined in pages 732-735 of X v. Bedfordshire County Council, and the approach actually adopted in the circumstances in Lonrho was not appropriate.
34. Esto the approach adopted in Lonrho was of any relevance in the present case, senior counsel for the pursuer submitted that the approach of Lord Justice General Rodger in Friel v. Scott, 1999 S.L.T. 1384 could be reconciled with Ungoed-Thomas J.'s approach in Duchess of Argyll v. Duke of Argyll [1967] Ch. 302.
35. Firstly, Friel v. Scott was a criminal case. Provisions rendering conduct criminal were different from, and read more restrictively than, statements of illegality. Section 1(1) of the 1926 Act set out the illegality. Section 1(2) then laid down the enforcement provisions. The enforcement provisions were much narrower than the illegality provided for in section 1(1). In X v. Bedfordshire County Council, reference was made to the significance of there being a remedy. For a significant part of section 1(1) of the 1926 Act, there was no remedy. Thus even if the defenders' argument based on Lonrho was (contrary to the pursuer's submission) of some relevance, the lack of a remedy indicated that there should be civil enforcement: cf. dicta in X v. Bedfordshire County Council.
36. Secondly, counsel submitted that the only issue in Friel v. Scott was the locus of the publication, which was not a matter currently before the court. The issue before Ungoed-Thomas J. was the extent to which the 1926 Act was enforceable by civil remedy. If there was felt to be any tension between the two decisions, a decision in favour of the pursuer would leave both decisions standing; whereas a decision in favour of the defenders would mean that the logic and approach in Duchess of Argyll had been rejected by this court. As the Lord Justice General pointed out in Friel v. Scott at p.1386A, when referring to the background to the 1926 Act, and to the Ampthill Peerage litigation, prevention of damage to public morals was the principal aim of the 1926 Act, but there was also an intention to restrict invasion of the privacy of those unfortunates whose private and embarrassing intimacies might otherwise be revealed. Such a background set the scene for the decision of Ungoed-Thomas J., who was asked to consider an issue much more like the issue presently before the court. Ungoed-Thomas J. was not considering the issue of damages for breach of statute (category A in X v. Bedfordshire County Council): he was considering - irrespective of whether one could obtain damages for breach of statute - whether the statute was good for certain other civil liability purposes. While counsel for the defenders criticised Ungoed-Thomas J.'s alleged lack of attention to the long title, they conceded that the long title could not constrain, far less contradict, clear words in the statute. Ungoed-Thomas J. had found that there were clear words in the 1926 Act. Counsel for the defenders had been unable to suggest any ambiguity entitling them to pray in aid Pepper v. Hart. Unless they could do so, there was no apparent flaw in Ungoed-Thomas J.'s approach.
37. So even if the defenders were correct in their contention that the pursuer was seeking "Lonrho-type" damages, the pursuer was, as shown in Ungoed-Thomas J.'s reasoning, in a class envisaged by the statute. Although on one view the defenders' interpretation of Windeatt v. Windeatt was correct, on another view, the Court of Appeal's approach was to view the 1926 Act as having a significant effect in the context of an individual's privacy in divorce proceedings. In relation to the defenders' argument that the Duchess of Argyll case related only to interlocutory proceedings, and did not provide authority for a claim for damages, the pursuer in the present case was not seeking damages on the basis of a breach of the 1926 Act: accordingly the pursuer could pray in aid the Duchess of Argyll as a model for civil implementation of the Act. The case of Rickless and ors. v. United Artists Corporation [1988] Q.B. 40, was of assistance, particularly the dicta of Sir Browne-Wilkinson (as he then was) at pages 50-53. With reference to the dicta at page 51B setting out the scheme of the Dramatic and Musical Performers' Protection Act 1958, Sir Browne-Wilkinson's observations and reasoning applied a fortiori in the present case, as the 1926 Act first set out the declarator of illegality, and then the penalty. Rickless bridged any gap which might be thought to exist because Ungoed-Thomas J. was concerned only with an injunction and not with damages.
38. Senior counsel concluded by summarising the pursuer's position as being (1) the defenders' Lonrho approach was erroneous; but (2) esto the Lonrho approach was not erroneous, and the present case was regarded as a claim for damages for breach of statute, the cases of Duchess of Argyll v. Duke of Argyll, and Rickless and ors. v.United Artists Corporation, showed that the pursuer was entitled to a civil remedy.

European Convention on Human Rights

39. Responding to the argument based on the European Convention on Human Rights, senior counsel for the pursuer submitted that "reputation" fell within the scope or definition of "private life" in Article 8 of the European Convention on Human Rights: cf. Niemietz v.Germany (1993) 16 EHRR 97. Article 8 extended to reputation in both private and professional life: Rotaru v. Romania, B.H.R.C. 449 at paragraph 43. Merely because an event happened in public did not mean that it did not involve someone's private life. Accordingly the article complained of constituted an interference with the pursuer's private life. Respect for private life included respect for someone's physical and psychological integrity, and therefore avoidance of the distress caused by defamation of character: cf. paragraphs 32-34 of Botta v. Italy, (1998) 26 EHRR 241. In terms of section 3 of the Human Rights Act 1998, the 1926 Act fell to be construed in compliance with ECHR principles as outlined in paragraphs 32-34 of Botta.
40. In the present case, the publication of the article was in breach of the 1926 Act. It could not therefore be said that the interference with the pursuer's private life was "in accordance with the law". Accordingly there was a violation of the Convention.
41. Further, in relation to Article 10, the courts recognised that different states had different ideas about morality. A wide margin of appreciation was given to each state to decide what restrictions should be placed on freedom of expression: Muller v. Switzerland (1991) 13 EHRR 212. Article 10 permitted restrictions to be imposed by law. The response of the 1926 Act, construed as the pursuer contended it should be, was a "proportionate" response in that (1) the restrictions themselves were limited and discriminating; (2) the imposition of the criminal penalty was discriminating - for while the journalist might be affected by the civil unlawfulness, he was not vulnerable to criminal prosecution: this careful discrimination reflected the fact that publication was in the financial interests of the publisher, that the publisher was usually of a more substantial nature than the journalist, and also that the publisher would be likely to make arrangements to check the lawfulness of what was about to be published, whereas a journalist might not; (3) the 1926 Act protected people's rights and reputations, and supported the rights which the pursuer had in terms of Article 8 (a relevant consideration when weighing the proportionality of the restriction). Because the publication of the article in question was not in accordance with the law, it was in breach of Article 10(2) of the Convention. The penalty of damages was a lesser penalty than the criminal penalty: so the response of the 1926 Act (construed as the pursuer contended) was entirely proportionate.

Miscellaneous responses

42. Counsel for the pursuer submitted that ignorance of the law could not excuse unlawful conduct: the reference to Millar v. Dickson, 2001 SLT 988 was misconceived. Solicitors would not be caught by the 1926 Act because of the express terms of section 1(4). In relation to whether the 1926 Act affected communications other then printing or publishing, counsel submitted that the 1926 Act might well extend to all media, including television and radio.

Final reply by defenders

43. Senior counsel for the defenders reiterated that, according to its plain terms, and as construed in the High Court of Justiciary in Friel v. Scott, the 1926 Act was intended to be a regulatory Act, its purpose being the regulation of reports by the imposition of sanctions in the event that the Act was not duly observed. The pursuer's position appeared to be that Parliament's intention, as enacted in the 1926 Act, was broader, and included an intention to innovate upon the common law of defamation in Britain by removing a defence of qualified privilege (although not apparently defences such as veritas or fair comment).
44. The court might wish to approach the matter by posing two questions: (1) When Parliament passed the 1926 Act, did it intend to amend the common law of defamation in Britain. (2) If not, should the Act now be read such that a breach of section 1 creates a right of action and a civil remedy for an individual who claims to be a victim of the breach.
45. In relation to the first question, counsel argued that it would be surprising if Parliament had deliberately set out to achieve an amendment of the common law of defamation, yet had not given some hint of such an intention in the Act. Also there was the odd anomaly that some defamatory matters would be affected by the Act (and the defence of qualified privilege removed in the event of a breach of the Act, according to the pursuer's argument) while other defamatory matters would be unaffected. Further, it was important to remember the long title to the Act, and also the fact that it would be possible to comply fully with the Act, and yet to defame someone involved in a divorce or similar proceedings.
46. In relation to the title to the Act, the long title was "An Act to regulate the publication of reports of judicial proceedings in such manner as to prevent injury to public morals". The words were clear: it was inconceivable that Parliament had formed an intention to amend the law of defamation, yet had decided not to announce its purpose in the long title. Long titles to other statutes gave clear notice whenever Parliament intended to legislate more widely than the immediate or obvious purpose of the Act: for example, the long title of the Contempt of Court Act 1981 was: "An Act to amend the law relating to contempt of court, and related matters"; the long title of the Civil Evidence (Scotland) Act 1988 was: "An Act to make fresh provision in relation to civil proceedings in Scotland regarding corroboration of evidence and the admissibility of hearsay and other evidence; and for connected purposes." It was legitimate to look at the long title to ascertain the purpose of the Act: cf. the approach of the High Court of Justiciary in Scottish Criminal Cases Review Commission, Petitioners, 2001 S.L.T. 1198, at p.1202 paragraph [15].
47. The 1926 Act was clearly an Act which imposed censorship. Its rationale was the protection of public morals. It was a regulatory Act. Counsel for the pursuer appeared to be addressing the question whether the 1926 Act gave rights, imposed duties, and gave civil remedies. Yet counsel abjured reliance upon the 1926 Act in that way, and maintained that the pursuer was not relying upon a breach of statutory duty, or on a violation of the 1926 Act. Counsel for the pursuer seemed to seek to persuade the court to hold that it was Parliament's intention to amend the common law of defamation. Bearing in mind the observations of Lord Diplock at page 183 of Lonrho Ltd. v. Shell Petroleum Co. Ltd. [1982] A.C. 173, the purpose of the 1926 Act was the prevention of injury to public morals. There was no particular "class" which was protected by the Act: section 1(1)(a) referred to medical, surgical and physiological details - a wide classification which could affect any member of the public. The 1926 Act was unlike the Factories Act, sections of which were intended to protect a particular class (factory workers). By contrast, the 1926 Act was a regulatory Act: that was plain on the face of the Act, from its name, and from its long and short title. It was for the benefit of society in general, although on occasions it gave incidental benefit to those involved in divorces.
48. The case of Rickless and ors. v. United Artists Corporation [1988] Q.B. 40 did not assist the pursuer, as the particular Act involved in that case disclosed an obvious intention to protect a named class of individuals.
49. Senior counsel submitted that it was impossible to read into the terms of the 1926 Act an intention to amend the common law of defamation such that, in an action of damages for defamation, the defence of qualified privilege would not be available to a person who had acted in contravention of the Act. The fact that defences such as veritas or fair comment would remain available made the pursuer's argument difficult. Moreover a newspaper report could obey the 1926 Act to the letter, yet still publish allegations defamatory to a party's character. The pursuer's argument was wrong and should be rejected.

European Convention on Human Rights

50. Senior counsel for the defenders submitted that it was unnecessary for the court to trouble with Article 10 of the Convention, or with proportionality. Article 10 only came into play if the court held, on a proper construction of the 1926 Act, that the 1926 Act amended the common law of defamation to the detriment of the defenders. The real question for the court was the proper construction of the 1926 Act. If the court were to hold that the 1926 Act operated to deprive the defenders of defences which they would otherwise have, then the court would have to address the question whether it was necessary to read the legislation that way. Counsel submitted that it was not. Parliament had expressly provided for a criminal penalty: there was no need to look at Article 10. Article 8 might come into play if the court were to hold that the 1926 Act did not amend the common law. If the defenders' construction of the 1926 Act were correct, there was no incompatibility with the Convention, as the 1926 Act sought to protect the same values as Article 8.
51. Niemietz, cit. sup. did not assist the court in determining the question whether the 1926 Act, construed as contended for by the defenders, was incompatible with convention rights. Similarly Rotaru v. Romania, cit. sup. was simply a repetition of Niemietz, and did not help in determining whether the 1926 Act was incompatible with the convention. Nor did the case of Botta v. Italy add anything to the current debate. It could not be said that the 1926 Act represented a lack of action by the state. Compliance with the Act was secured by means of a penalty imposed in the event of breach. The pursuer's counsel seemed to be suggesting that the publication of the article in the newspaper was a breach of Article 8 of the Convention. That approach was wrong. The starting point was that there had been a public court case. The matters disclosed in evidence were then in the public domain. The question of a proportionate response did not arise.
52. Senior counsel again invited the court to repel the defenders' first and second pleas-in-law, repel the pursuer's third plea-in-law, and allow issues.

Opinion

The case against the journalist (the second defender)

53. The second defender did not "print or publish" the article in the Evening Times. Nor, in my view, did he "cause or procure" the printing or publishing of the article. While a journalist may have an element of choice in, firstly, the subject matter of an article, secondly, the question whether or not to write the article, and thirdly, the manner in which the article is written, it is ultimately the decision of the editor (and possibly, on occasions, the publishers) whether or not that article will be included in the relevant copy of the newspaper. I consider that dissemination or publication of the material is the crucial issue. Accordingly whatever view one might ultimately form about the journalist's role in this case, I consider that he was not in breach of section 1 of the 1926 Act and cannot be said to have acted "unlawfully" such that he is deprived of any common law defence which might be open to him when faced with an action of defamation. The question of malice, raised in connection with the plea of qualified privilege, will require to be explored and the facts elicited before any ruling in law can be made. Accordingly in the second defender's case, it is my view that the appropriate procedure is a proof before answer on the averments as they stand, without excision of any particular averment.

The case against the newspaper company (the first defenders)

54. The first defenders undoubtedly published the article, or caused it to be printed and published. The terms of the article prima facie went beyond the parameters set by section 1(1)(b) of the 1926 Act. On the pursuer's averments therefore, the first defenders appear to have been in breach of the 1926 Act.
55. The pursuer's case against the defenders is, as I understood counsel, founded primarily on common law rather than any civil right said to arise from the 1926 Act. It was only on an esto basis - esto the pursuer's case should more properly be seen as founded upon certain civil rights accredited to the pursuer as a result of the 1926 Act - that counsel for the pursuer cited and depended upon the views of Ungoed-Thomas J. in Duchess of Argyll.
56. I consider that the pursuer is correct in his view that his claim for damages is truly founded upon common law, because, in my view, the 1926 Act, properly construed, does not give a divorce litigant such as the pursuer any civil law right to recover damages from a newspaper company in the event of their transgressing the boundaries set by the Act. I have reached that view for the following reasons:
57. Firstly, the 1926 Act provides only criminal sanctions, and no civil remedies: cf. the principles set out in Lonrho.
58. Secondly, the long title to the Act suggests that its purpose is the protection of the public from salacious detail, rather than the protection of the privacy of litigants, and in particular litigants in a divorce action: cf. the views expressed by the Lord Justice General in Friel v. Scott.
59. Thirdly, litigants do not appear on a proper construction of the 1926 Act to be an identifiable class of persons intended to be protected. In fact many litigants may be left quite unprotected by the Act. Section 1(1)(b)(i) to (iv) does not prevent allegations of a defamatory nature being printed or published. If a party in a divorce action makes averments that his or her spouse took heroin, or interfered sexually with the children, and these matters were published quite properly within section 1(b)(i) to (iv) as charges, defences, countercharges, submissions, or judgements, it is possible that major damage to reputation could occur without the need for any further detail. Such a situation suggests therefore that the true purpose of the Act is not to protect a party in a divorce case by prohibiting publication of alleged misdemeanours, but to protect public morals by restricting the extent and detail of any salacious, sickening, or disgusting material.
60. Fourthly, it remains to be seen whether the 1926 Act should be read as giving a litigant the civil remedy of interdict and interim interdict preventing publication of an article which exceeds the limits set by section 1(1)(b). The existence of such a statute-based civil right would seem illogical, bearing in mind the views I have reached above. Also the dicta and reasoning of Lord Justice General Rodger in Friel v Scott suggests there would be no such civil right (although admittedly Friel was a criminal, not a civil, case). By contrast, Ungoed-Thomas J. in Duchess of Argyll (a civil case) suggests that a litigant would have civil remedy of interdict arising from the 1926 Act. However that aspect of Duchess of Argyll has apparently not been approved (nor indeed mentioned) in any subsequent case. Also Ungoed-Thomas J. granted the injunction in circumstances equivalent to the seeking of an interim interdict in Scottish courts, and issued his written judgement later. On one view, therefore, in circumstances of some urgency, he found that there was a sufficiently stateable or prima facie case to enable him to grant an interim interdict or injunction preventing publication. It does not necessarily follow that an individual such as the present pursuer would be entitled to other private civil rights as a consequence of a newspaper's breach of the 1926 Act: cf. observations of Lord Jauncey at page 664L in Noble's Trs. v. Economic Forestry (Scotland) Ltd., 1988 S.L.T. 662.
61. I consider therefore that the pursuer's primary position, founded on the common law, is the more correct one.
62. The next question therefore is whether a newspaper company, such as the first defenders, are deprived of defences open to them in terms of the common law of defamation because they are in breach of section 1(b) of the 1926 Act.
63. In my view, on a proper construction of the 1926 Act, a defender's entitlement to plead the defence of qualified privilege (and any other recognised common law defence) is not removed in the event of breach by the defender of the Act, for several reasons:
64. Firstly, the 1926 Act does not provide for such a consequence, either expressly or impliedly. To remove a well-established defence to an action of defamation would be an important innovation in the law of defamation, yet the Act is mute on the subject.
65. Secondly, it would seem illogical and unsatisfactory if a breach of the 1926 Act impliedly removed qualified privilege from a defender, but left, say, fair comment, and/or veritas. An even less acceptable position would be the suggestion that a breach of the 1926 Act removed all defences known at common law. (In the latter case, one could envisage a situation where the information published, although damaging to reputation, was true: the divorce litigant could defend himself or herself in any action for defamation, but a newspaper company which had transgressed the 1926 Act in some minor way, could not).
66. Thirdly, as noted above, the purpose of Act, properly construed, seems to be directed to the protection of public morals and the regulatory control and punishment of owners, editors, printers and publishers by a prosecuting authority on behalf of the public, not to the alteration of private rights in the law of defamation.
67. While I am not persuaded that a breach of the 1926 Act removes a defence such as qualified privilege from the defenders, it is worth noting that the defenders may face serious difficulties in their endeavour to establish that the article of 10 September 1996 was fair or accurate as at the date of publication, bearing in mind the pursuer's opening statement to the court and the fact that the sheriff had not, as at 10 September 1996, found any of the allegations to be true. Similarly there may well be serious difficulties in establishing lack of malice. However these are matters for the proof before answer.

The European Convention on Human Rights

68. Section 3 of the Human Rights Act 1998 provides:

"So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with convention rights".

Article 8 of the European Convention on Human Rights has as its aim the protection of an individual's privacy and family life, his home and his correspondence. Article 10 of the Convention has to some extent a conflicting aim, namely freedom of expression, including unfettered publication of news by the media.

69. As was pointed out by Lord Bingham of Cornhill in Brown v. Stott, 2001 SLT 59, at page 70J-K:

"The [European] Court has ... recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention."

70. In my view, the construction of the 1926 Act contended for by the defenders is the correct one. I do not consider that such a construction is incompatible with convention rights. Rather it reflects an aspect of the "balance between the general interest of the community and the personal rights of the individual".
71. I am not therefore persuaded by any reference to the European Convention on Human Rights that a breach of the 1926 Act prevents the person in breach from attempting to rely upon a relevant common law defence to an action of defamation, such as the defence of qualified privilege.

Conclusion

72. I shall repel the pursuer's third plea-in-law, and quoad ultra, as I consider that certain factual issues require to be explored before decisions in law can be made, I shall allow a proof before answer.