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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 185
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OPINION OF LADY
SMITH
in the cause
APPA UK LIMITED
Pursuers;
against
CLYDE
AND FORTH PRESS LIMITED
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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Pursuers: Henderson, Advocate; Haig-Scott & Co
Defenders: Haldane, Advocate; Dundas & Wilson
13 October 2006
Introduction
[1] The
pursuers are a company whose business includes the sale of beds. The defenders own and publish the Ardrossan
and Saltcoats Herald, a weekly newspaper.
The pursuers have raised an action against the defenders in which they
seek damages in respect of an allegedly defamatory article published in an
edition of their newspaper on 2
December 1995. The subject
matter of the article was the selling techniques used by the pursuers,
particularly those used in the case of sales to the elderly. It was critical of
them.
[2] An
article to the same effect appeared in the Daily Record prior to that which
appeared in the defenders' newspaper.
The pursuers have also raised an action for defamation against
them. Proof before answer has been
allowed in that case and a proof fixed for 30 October 2007.
[3] The
present case came before me on Friday
13 October 2006 on the defenders' motion to discharge the diet of
procedure roll debate set down for the following week and to sist the action to
await the outcome of the pursuers' action against the Daily Record. The pleadings in the case against the Daily
Record were not put before me but Mr Henderson did not dispute the defenders'
assertion that both actions raised, as their central issue, the question of
whether or not the pursuers' selling practices were as set out in the newspaper
articles and, accordingly, open to the criticisms voiced in them.
Submissions for the Defenders
[4] For
the defenders, Miss Haldane submitted that it was appropriate that the action
be sisted to await the outcome of the action against the Daily Record. The same issue was raised in both cases. The defenders accepted that if it was
established that the Daily Record had defamed the pursuers then they, the
defenders, had also done so. That would
leave only quantum to be settled or adjudicated on, if agreement could not be
reached. On the other hand, if they were
exonerated, it would follow that these defenders would also succeed in being
exonerated.
[5] The
case against the Daily Record was significantly more advanced. A proof had been fixed. The present case was, on the other hand, at
procedure roll stage. Ultimate enquiry
was much further off than in the Daily Record case.
Submissions for the Pursuers
[6] For
the pursuers, Mr Henderson submitted that the defenders' motion should be
refused because he knew of no case in which an action of defamation had been
sisted to await the outcome of another similar action. Unless the defenders could point to an
absolute rule in their favour, the sist should be refused. The pursuers' only redress against the press
was an action of defamation and they should be able to seek that redress as
quickly as possible. There was no way of
knowing whether people in the area of circulation of the defenders' newspaper
had refrained from buying beds because of the article and they were entitled to
proceed towards vindication of their reputation there. Although a proof before answer had been
allowed in the Daily Record case, a judge might not be available for the case.
[7] He
also suggested that the result in the Daily Record case might not be conclusive
as those defenders might succeed on a qualified privilege defence which he
"thought" that they were founding on. He
did not, though, press this matter and the overall impression given remained
that it was accepted by the pursuers that, essentially, the Daily Record action
would dispose of the question of whether or not the pursuers were defamed by
either newspaper. Rather, his central
point seemed to be that the pursuers were entitled to full vindication by means
of running both actions.
[8] Neither
counsel referred to any authority in support of their submissions.
Discussion and Conclusions
[9] I
was persuaded that it was appropriate to grant the motion. It appeared that the central issue in this
case was also the central issue in the Daily Record case and the defenders
accepted that if it was resolved in the pursuers' favour, then they too would
be liable for defamation. There would
then be no need for that issue to be determined by the court in this case and,
as happens in many cases where damages are sought, it was possible that quantum
would be agreed thus avoiding any further resort to judicial
determination. No clear case was
advanced of it being likely that there would be circumstances in which the
pursuers would proceed against these defenders if they failed against the Daily
Record.
[10] As against the foregoing, in the absence of a sist of the
present action, the expense of the procedure roll debate the following week
would immediately have been incurred and other preparation expenses would have
been liable to ensue, expenses which could prove to have been quite unnecessary
once the outcome of the Daily Record litigation was known and which, as in the
case of all litigation expenses, would be bound to involve an irrecoverable
element even if the defenders were successful in the end of the day.
[11] I bore in mind that I had a discretion in this matter and took
the view that looking at the whole facts and circumstances I should exercise it
in favour of granting the motion.
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