Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 67
A189/10	OPINION OF LORD BANNATYNE in the cause MARION KINLEY Pursuer; against JAMES DEVINE Defender: ________________

Pursuer: Party

Defender: Party

9 April 2014

Introduction

[1] In this action the pursuer asserted that she had been defamed by the defender and sought reparation from him therefor. The matter came before me for proof before answer. Both the pursuer and defender represented themselves.

[2] In the course of the proof I heard evidence on behalf of the pursuer, from the pursuer herself and Eilidh McDonald. On behalf of the defender I heard evidence only from the defender.

The allegations of the pursuer and the defender's response

[3] The pursuer's position on record was this: she founded on alleged defamatory statements which fell into two broad chapters: first, that between in or about June 2008 and October 2008 the defender, while the pursuer was off work, made the following statements to Eilidh McDonald:

"(a) The pursuer was from June 1998 onwards being investigated by the Police (and in particular Special Branch) with regard to her handling of office accounts. That he personally had been interviewed by the Police and that they had informed him that the pursuer's handling of office accounts was under investigation; that they were concerned about fraudulent mobile phone bill claims.

(b) That the pursuer had helped herself to 'bonus' money that she awarded to herself to which she was not entitled.

(c) That she fraudulently claimed for both her and her son's mobile phone bills and paid for them using office funds.

(d) That she had stolen significant sums of money, whilst working as office manager, from public funds that had been allocated to the office.

(e) That the pursuer suffered from a serious gambling addiction. That she frequented a casino three times per week. That when he visited a casino with her the members of staff all knew her well".

(See: page 7E to 8E of the closed record)

In addition it was said that allegations of a similar nature had been made by the defender to Linda Chatwin:

"(a) In or around October 2008 he told her that the pursuer was the subject of a police investigation for fraud.

(b) Around 6 weeks later he told her that whilst he had a budget of £500 to £800 for a cleaner this had gone missing. He made it clear that the pursuer was responsible for the loss of that money.

(c) The reason why she no longer worked for him was as a result of her dishonesty".

(Page 9A - C of the closed record)

Beyond that it was stated that similar allegations had been made to councillors and politicians.

[4] The second chapter of allegations was this: the pursuer asserted that the contents of a letter dated 2 October 2008 sent by the defender to the pursuer contained statements of a broadly similar nature to those which had been made to the above. Within that letter the defender alleged that the pursuer:

"(a) Provided the defender with false information relating to her previous employment;

(b) Falsified an overtime claim in April 2007;

(c) Falsified a bonus claim in September 2007;

(d) Falsified the defender's signature in relation to a letter from Sheriff Officers;

(e) Registered an office phone in her name and falsified claims regarding the account".

(See: page 6A - C of the closed record)

[5] The defender's position in reply to the above as set out on record was in summary as follows: with respect to the first chapter of allegations he denied saying these things to Ms McDonald, Ms Chatwin and others. He had an esto position as regards the statements and this was to the following effect: he contended that if he had said these things they were in any event substantially true.

[6] As regards the second chapter of allegations as contained in the said letter the defender admitted the sending of this letter which as I understood it, had been prepared on his instructions and on the basis of information provided by him to members of staff in the House of Commons. However, he again contended that what was contained within the said letter was substantially true.

The circumstances surrounding the allegations

[7] The defender was at all material times an MP. The pursuer was at all material times employed by the defender as his office manager to assist him as an MP, in his various duties. During the period 31 March 2008 to 5 October 2008 the pursuer was off work for medical reasons. The pursuer's absence from work was triggered by a phone call to her from a Ms Fox, which phone call was instigated by the defender and the details of which I will turn to later in this opinion. She intended to return to work on or about 6 October 2008. The defender became aware of her intention to return to work at some time shortly before 6 October 2008. The defender suspended her from work by said letter dated 2 October 2008. His reasons for suspending her were as above set out. The defender responded to said letter, refuting the allegations, by letter dated 15 October 2008. There was thereafter sundry procedure regarding the suspension involving the parties, the pursuer's union and the House of Commons authorities. Eventually the pursuer took the defender to an Employment Tribunal ("the ET") claiming unfair dismissal. The tribunal held that she was constructively dismissed in terms of a judgement dated 14 October 2010. The defender was convicted following trial in 2011 of two offences of false accounting in relation to his constituency office, involving claiming £8,365 in expenses. He received a sentence of 16 months imprisonment (6/21 and 6/25 of process).

The legal framework

[8] Before turning to consider the evidence in this matter, it is perhaps convenient at this stage to set out the law relative to an action of defamation.

[9] The requirements thereof are helpfully encapsulated in Norrie: Defamation and Related Actions in Scots law at page 8 where the learned author says this:

"The action for defamation is by far the most common form of action arising from an attack on a person's character, honour and reputation, and in many respects it is the most peculiar. It is an intentional delict in which the intent to injure is usually irrebuttably presumed. It is a delict only if the statement or communication upon which it is based is false, but with which falsity is rebuttably presumed leaving the defender with the onus of proving, as a defence, truth or veritas. The pursuer does, however, always have the onus of proving that the statement or communication complained about is 'defamatory' and that it has been 'communicated' from the defender to either the pursuer alone or to some other person. Liability for defamation arises, therefore, only when the pursuer relevantly pleads and subsequently proves both elements."

Accordingly in the case before me the pursuer first had to prove that the statements complained of were defamatory. As to whether a statement is defamatory, the test is set out by Lord Atkin in Sim v Stretch 1936 2 AER 1237: "Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?" It seems to me that if the statements made were false then applying the above test they were clearly defamatory. The statements broadly allege serious criminal conduct on the part of the pursuer and that she was a gambling addict. Taken either individually or together these allegations were bound to lower the pursuer in the estimation of right-thinking members of society generally. In the course of his submissions to me the defender at no point sought to argue to the contrary.

[10] Secondly the pursuer had to establish the statements were communicated from the defender to the pursuer or to others. At least insofar as the first chapter of statements, this was a matter of dispute. With regard to the second chapter, there was no dispute that the defender had said letter sent to the pursuer.

[11] Once the above had been established it was for the defender to establish the truth of the allegations. The issues before the court came to be these: had the statements in the first chapter been communicated by the defender to persons other than the pursuer? Were the statements in substance true? Were the statements made maliciously?

Submissions

[12] The pursuer's submissions commenced by briefly outlining the law. With respect to the issues on the merits she submitted I should accept her evidence and the evidence of Ms McDonald. She submitted I should reject the evidence of the defender and highlighted various points in his evidence which she submitted showed him to be incredible and I will deal with these in my discussion. With respect to damages, she referred to her evidence on this matter. She referred me to Munro v Brown [2011] CSOH 117, an opinion of Lord Doherty as regards the issue of quantum.

[13] The defender in his submissions began by directing my attention to a note prepared by senior counsel, who was acting at an earlier stage in the case. This was prepared for a debate and was of no material assistance to me in considering the issues before me following proof.

[14] Apart from the above he submitted as I understood it that I should reject the pursuer's evidence as untruthful and Ms McDonald's as unreliable. He submitted I should accept his evidence as truthful.

[15] His esto position was that the damages sought were excessive.

Discussion

The merits

[16] In considering the above issues the core question for the court came to be this: which of the witnesses led, if any, were credible and reliable? I without any difficulty found the pursuer and Ms McDonald to be credible and reliable. Equally without any difficulty I found the defender not to be a credible or reliable witness. My reasons for the above findings are as follows:

[17] Before turning to look at the evidence of the pursuer and defender and my assessment of their credibility and reliability I wish to consider first the evidence and the credibility and reliability of Ms McDonald.

[18] Ms McDonald was for a period a parliamentary researcher for the defender. In particular she came into contact with and had dealings with the defender during the period while the pursuer was off work between March and October 2008. She gave evidence to the following effect: while the pursuer was off work during the foregoing period the defender's initial position was to express worry and concern about the pursuer. However, over time his attitude changed. At one point he advised Ms McDonald that investigations were going on into the pursuer's accounts. He said that Special Branch had sat him down and said there was an investigation into the pursuer's mobile phone account. The defender spoke to her on a number of occasions about this. On later occasions when he spoke to her about this, rather than saying that the Special Branch were investigating the pursuer, he said that the police were investigating her. She stated that the defender suggested that the pursuer had fraudulently claimed money from the office.

[19] She went on in her evidence to state that, shortly before the pursuer was due to return to work in October 2008, she asked the defender why the pursuer would fraudulently have claimed money. The defender replied that she had done this because of gambling. He said that he had gone to a casino with the pursuer and found that she knew people there. He said that the pursuer was going to the casino a few times per week and that was why she was fraudulently claiming money. She also stated that the defender had spoken to her about the pursuer giving false information relative to a previous job. She said that the defender had advised her that among the pursuer's fraudulent claims was the fraudulent claiming of a bonus.

[20] Immediately before the pursuer was due to come back to work in October 2008, Ms McDonald said that she had advised the defender that the pursuer was returning on the Monday. His reply to that was: "No she fucking won't".

[21] She said that she was aware that Linda Chatwin, another employee in the defender's office, was aware of some of the matters regarding the pursuer which the defender had told her about.

[22] The defender's position in cross examination of Ms McDonald was to challenge her evidence by putting to her that he had not made the above statements. She throughout her evidence maintained that he had said these things.

[23] Although the defender's line of questioning appeared to be a clear attack on the witness's credibility, when it came to submissions the defender specifically submitted that he was not saying the witness was lying, rather his position was that she had got the content of conversations he had had with her wrong, and thus it was an attack on her reliability.

[24] With respect to this witness it seemed to me that she was an entirely independent witness who in particular had no axe to grind as regards the defender.

[25] She stated that she had no reason to make up the evidence which she was giving. She said that it was very upsetting for her to be in court and she would not make up her evidence. These remarks in my judgement very much rang true.

[26] She at no point in her evidence was caught out, nor did she at any point seek to exaggerate evidence which she was giving.

[27] It was put to her in cross examination that there were certain matters she could not remember and therefore why did she remember these statements which she said had been made by the defender. Her answer to this appeared to me to have considerable cogency and was this: she could remember allegations of criminal behaviour made against a colleague, but could not remember other less important issues.

[28] There was nothing in her evidence or in the way that she gave her evidence which caused me to believe she was incredible or unreliable as regards the evidence which she gave. With respect to the core matters in her evidence, namely: the making of these statements by the defender her memory appeared to be clear. Her evidence remained consistent throughout.

[29] Overall I formed a very favourable impression of this witness. Having regard to the foregoing factors I believe I am entitled to conclude that she was a credible and reliable witness.

[30] Turning now to the pursuer, I found her to be a most impressive witness. Her position in evidence was that the statements set out at 7E to 8E of the closed record and repeated in the letter of 2 October 2008 were not the truth. Her credibility with respect to this issue was first supported by the consistency of the position she had taken up regarding these matters. She immediately in 6/1 of process replied to the defender's letter of 2 October refuting all that he had alleged and fully setting out her position in relation to each allegation. She has not departed to any extent from that position.

[31] I believe further support for her credibility is found in the said response letter at paragraph 6 where she offers to meet with staff of the Fees Office in the House of Commons to go through every claim made in order to justify her position. This is I believe hardly the acting of someone who had behaved in the way alleged by the defender. Further in a letter of 5 October 2010 (6/49 of process) to Heather Bryson, Director of Human Resources Management at the House of Commons the pursuer stated that she would welcome an independent investigation of her whole actings regarding the financial affairs of the office which she ran for the defender. Once more I believe this is hardly the acting of someone who had behaved in the manner alleged by the defender. Throughout the pursuer sought to clear her name by seeking strenuously to refute the allegations made against her by the defender. She at no time accepted that there was any truth in these allegations. Her efforts to clear herself and to show that there was no justification for her suspension included, apart from seeking an independent investigation, entering into discussions with the defender and the House of Commons authorities seeking to deal with matters and, when this ultimately failed, taking the defender to an employment tribunal where she was ultimately successful in her claim against the defender. Her whole actings since the allegations came to her attention seem to me to support the credibility of her denial of the wrongdoing contained in these allegations. Her consistent behaviour since the allegations in my view has to be contrasted with the defender's behaviour since that time, which I will turn to look at in detail later in this opinion.

[32] When the defender sought to put these allegations to her in cross-examination she, in my judgement, fully answered any points which the defender sought to advance in support of the allegations. She was never caught out lying in the course of her cross-examination.

[33] The pursuer's position in evidence was that the allegations which were made against her by the defender were made maliciously in order to seek to cover up the defender's own dishonesty and without any thought for the effect they might have on her.

[34] There was support for the above position which the pursuer took in the course of her evidence. First as I have earlier referred to, the defender was convicted of offences relating to his claiming of expenses. The pursuer in her evidence pointed

to the fact that in the course of his trial the defender sought to shift the blame for his own criminal misconduct onto the pursuer.

[35] Secondly the pursuer spoke to going off work due to ill-health in or about 30 March 2008 and not being fit to return to work until about October 2008. Her position in evidence was that this illness was caused by the defender's actings, in particular in or around the weekend of 29 and 30 March 2008. These actings are fully set out in 6/46 of process. However the core of these actings was said to be a phone call to the pursuer from someone posing as a Sunday Telegraph reporter, namely: Eileen Hurleyheigh who said that she was investigating MP's expenses and in particular the pursuer's salary. It was not disputed by the defender that in fact the person who phoned posing to be Miss Hurleyheigh was a Fiona Fox. Nor was it disputed by the defender that he had instigated the making of the phone call, the content of the call and the pretence. The pursuer in the course of 31 March found out about this and was greatly distressed, leading to her absence from work.

[36] These actings tend to support the pursuer's position that there was a campaign by the defender maliciously seeking to put forward untruths in which the defender never had any belief.

[37] The pursuer following these events wrote a grievance letter to the defender, 6/46 of process. However this was not replied to.

[38] With respect to the allegation that the pursuer had been subject to a police investigation, the pursuer's denial of this was supported in the clearest possible terms by a letter from DS Mathew Horne, who as I understand it was in charge of investigations surrounding MP's expenses and wrote as follows:

"I can confirm that Mr Carpenter of the House of Commons wrote to me on 6 July 2009 with regards to Mr Devine, MP alleging that Ms Kinley had signed claims for Parliamentary expenses on behalf of Mr Devine, MP. Ms Kinley has not been the subject of an investigation but has provided witness statements in connection with the allegations against Mr Jim Devine, MP".

(See: 6/34 of process).

[39] The defender particularly relied on Mr Carpenter writing to the police regarding the pursuer as backing up his statement that the pursuer was the subject of a police enquiry. The above letter countered this assertion. I also note in passing that the letter from Mr Carpenter is dated 8 July 2009, and even had there been any police investigation of the pursuer following upon that, such investigation would not have formed a foundation for the defender's statements which commenced prior to the date of this letter, namely: in or about June 2008.

[40] The pursuer also produced 6/52/7-9 of process, being letters from the Metropolitan Police and Lothian and Borders Police which confirmed they had no information to disclose suggesting she had been the subject of a police investigation.

[41] Also produced was 6/32 of process which was an email from DC Evelyn Staples from the International Unit (Financial) at New Scotland Yard to the pursuer which said:

"Do bear in mind that when investigations take place we don't 'ignore' blatent [sic] criminal action by those involved with or surrounded by the main suspects. You were not and are not a suspect nor are you being prosecuted take care, I will contact you tomorrow."

This again tended to refute the defender's allegation.

[42] In that the pursuer had been the subject of a police investigation, the defender produced a letter from DS Horne (7/2) which said this:

"The letters were investigated: the matters were considered carefully and no separate criminal investigation was initiated".

On a sound construction nothing said here supports the defender's contention that the pursuer was the subject of a criminal investigation. I again observe that this relates to matters post-July 2009.

[43] With reference to the allegation that the pursuer was addicted to gambling the pursuer produced 6/52/4 of process. This was a letter from Gala Casinos which showed that from 19 December 2003 until 26 July 2009 the pursuer who was a member at this casino had only visited the casino on five occasions. I understood that the casino which was said to found the allegations about the gambling was the Gala Riverboat Casino. This tended to refute the allegation of the defender that she was addicted to gambling at a casino.

[44] Thus when the pursuer was in a position to produce documentation from independent sources which supported the position which she asserted in her evidence and on record, she did so. This also in my view supported her credibility.

[45] Beyond that her position in evidence was that Eilidh McDonald had told her that the defender had made the allegations as set out at pages 7 and 8 of the closed record and when Eilidh McDonald gave evidence she supported the pursuer's position and spoke to these statements being made by the defender. The support of an impressive independent witness like Ms McDonald, once more, in my view enhanced considerably the pursuer's credibility.

[46] The pursuer in her evidence highlighted that though the defender's position was that she had committed serious criminal offences, despite her requests, the defender never gave her the opportunity of having these allegations investigated. Rather, the defender sought to reach a compromise agreement with the pursuer relative to her being suspended from her employment. The various offers made by the defender are summarised in 6/53/1 of process and included offering to pay her sums of up to £21,000 and to give her a reference in the following terms:

"Marion Kinley worked for me from 01 June 2006 until 28 February 2009 as an Office Manager/Executive Secretary. Her duties included providing the full range of secretarial and administrative support. She was also responsible for managing the office, overseeing budgets, supervising other staff and volunteers.

Marion also assisted in drafting letters on a range of issues and responding to email and letters.

I found her to be hard working and flexible she understands the need for confidentiality.

I would have no hesitation in recommending her for a similar role".

(See: 6/53/12).

[47] The pursuer's position in evidence was that the settlement offer supported her position that there was no truth in the allegations that the pursuer had made against her. It appears to me that this contention is a sound one. These negotiations and in particular the offer of a reference in the above terms (the making of which offer was not disputed by the defender) are not consistent with the position that while in his employment the pursuer's behaviour had included serious criminal misconduct. If that had been the case, then there would have been no question of making any payment to the pursuer as a result of her suspension from employment or making an offer to give her a reference in the above terms. These negotiations and the terms of the reference once more support the pursuer's position that these statements were not true. I do not believe that these negotiations could be construed in any other way.

[48] The pursuer in her evidence then turned to the claim which she had made to the Employment Tribunal for unfair dismissal on the basis that she had been constructively dismissed by the defender.

[49] She drew to my attention that in this action she was successful. She also drew to my attention that the defender's defence to this action was struck out for failure to comply with a case management order.

[50] Further she sought to highlight certain of the findings in fact of the Tribunal (see: 6/6):

"......

12. In around July/August 2008 whilst the claimant was still on sick leave the respondent advised Amy MacDonald a fellow employee of the respondent that the claimant was being investigated by the House of Commons Fees' Office regarding fraudulent expenses claims. In fact, the claimant has never been the subject of any such investigation either by the House of Commons or indeed by the police.

......

20. During October 2008 the respondent continued to spread malicious rumours about the claimant. In particular, the respondent told Amy MacDonald that the claimant had submitted fraudulent claims for expenses to fund a gambling addiction. Further, he stated that the claimant had been subject to an investigation by Special Branch regarding her claims for expenses. The claimant's only involvement with the police has been to assist them in their investigation against the respondent. Insofar as any gambling addiction was concerned the claimant did attend casinos but sparingly, and has only been in casinos a total of five times over a six year period.

.....

22. The respondent failed to progress the disciplinary proceedings that he had instigated against the claimant and made no attempt to respond to the grievances raised by the claimant. On or around 3^rd November 2008, despite the disciplinary proceedings raised by the respondent against the claimant the respondent contacted Hugh Sculley the Regional Political Officer of Unite the Union asking him to canvas with the claimant whether she would be prepared to leave his employment by way of a Compromise Agreement. In the period November 2008 onwards attempts were made by the respondent to settle any claims the claimant might have by way of a Compromise Agreement.

23. Throughout this period the respondent continued to insist to third parties that the claimant was guilty of financial impropriety and was the subject of a police investigation. By letter dated 28 April 2009 to be found in Appendix X Terry Bird, Director of Operations at the House of Commons wrote to the claimant advising that there was prima facie evidence that she had committed an offence contrary to section 1 of the Forgery and Counterfeiting Act 1981. Terry Bird reached this conclusion after being provided with false information by the respondent. He advised the claimant that in the circumstances she would receive no salary beyond April 2009. It is believed that the claimant's salary was stopped on the direct instruction of the respondent but she was expected to continue her employment with the respondent albeit she continued to be suspended by the respondent.

......

35. Throughout the claimant's period of ill-health the respondent spread malicious untruths about the claimant. In particular, he said that the claimant was being investigated for fraudulent claims. This Tribunal also considered these actions to amount to a fundamental breach of contract."

[51] The decision of the ET and the findings in fact made by the ET tend again to support the pursuer's position.

[52] The pursuer in her evidence stated that she had been awarded approximately £35,000 by the Employment Tribunal. She advised in the course of her evidence that the House of Commons authorities as a result of the said judgement had paid to her the sum of £17,500. The defender had, following upon said judgement, made no payment to her. The payment made by the House of Commons again appeared to me to support the view that the allegations made by the defender of criminal misconduct had no foundation. I find it impossible to understand why the House of Commons authorities would have made this contribution to the payment of the award made by the Employment Tribunal had the defender's allegations of criminal misconduct against the pursuer had any validity. Again this evidence seemed to me to support the pursuer's position and her credibility.

[53] Lastly in her evidence the pursuer turned to the trial of the defender in February 2011 and referred to the defender seeking to divert blame for his criminal misconduct onto her (see: eg 6/15/1 and 6/20/2) and then the following statement being made by his defence barrister:

"During his trial, Devine had claimed his former office manager, Marion Kinley, had paid herself more than £5,000 from his staffing allowance without his knowledge.

But his counsel, Gavin Millar QC, accepted that Kinley had been suspended from the MP's employment at the time of the offences, between October 2008 and April 2009.

Whatever 'the continuing difficulties between the two', Millar said his client accepted she was not to blame". (See 6/25/2 of process)

[54] Again in my judgement this supported the pursuer's position and credibility. In particular it supported her position that the defender had formed and put into effect a campaign against the pursuer to hide what was eventually proved to be his criminal conduct and to deflect inquiries away from himself.

[55] With respect to the defender he gave evidence in support of his position as set out on record that he had not made the statements founded upon by the pursuer and if he had done, then they were substantially true. I did not accept that evidence.

[56] I found the defender to be a wholly unsatisfactory witness and in relation to any matter which was in dispute I was not prepared to accept his evidence.

[57] Generally looking at his evidence, it made no sense; it was implausible; it did not fit with documentation which was produced; it was not consistent; and when subjected to cross-examination the defender was on a number of occasions shown not to have been accurate when earlier giving evidence.

[58] I now turn to examine in detail the defender's evidence.

[59] It was his position that as at 15 March 2008 an audit of the claims he had made to the House of Commons was carried out and as a result of this audit he at that time became aware of the pursuer's criminal behaviour as set out in the letter of 2 October 2008. However, the defender's actings following this alleged discovery point to this not being true: (a) on his own evidence he did not report this matter to the police in March 2008 following the audit and (b) the first action he took was the sending of the said letter in October 2008 (seven months later). If these allegations had been true I would have expected an immediate report of the matter to the police and immediate action to suspend the pursuer not a gap of some seven months. The defender's explanation for not reporting the matter to the police was based on his friendship with the pursuer and not in those circumstances wanting to report the matter to the police. This did not ring true. The defender's explanation for the gap before the sending of the letter was first that it was the law that no action could be taken against the pursuer while she was on sick leave. However, he later changed this evidence to say that it was custom and practice that no action could be taken against a person while that person was on sick leave. In my view neither explanation holds any water. The fact that the pursuer was on sick leave provides no good reason for not initiating disciplinary action against her arising from these allegations. This failure to report to the police and failure to take any disciplinary proceedings for seven months fundamentally undermines his credibility.

[60] Turning to the matters surrounding his actings involving Ms Fox, the defender accepted his actings were unprofessional, but said that they were intended to obtain evidence against the pursuer. As I understood his position, he was seeking to get her to admit criminal misconduct. This makes absolutely no sense as it was his position that by this time he had the evidence of the audit and accordingly there was no necessity for any admission by the pursuer. In any event I could not understand why the defender would seek to obtain such information by using these unorthodox methods. This also did not fit in with his position that the matter was not going to be reported to the police. In these circumstances what was the point of these actings. His position regarding this matter in my view clearly undermined his credibility.

[61] With further reference to the incident involving Ms Fox when the defender was asked in cross-examination about that matter he said he had asked Ms Fox to make the phone call and to pretend to be another person because it was a way of confronting the pursuer. 6/45/6, however, contained a statement issued by Ms Fox saying this following the pursuer's Employment Tribunal and regarding the said telephone call:

"I am pleased Ms Kinley has won her case and deeply regret being unwittingly drawn into this unpleasant saga. In a very, very small way I too was duped by this man. He had assured me that this kind of prank was part and parcel of the humour in his team and that his colleagues gave as good as they got. At that time I had no reason to doubt the integrity of a Member of Parliament....".

[62] This explanation contradicted what the defender was saying: that the telephone call had a serious purpose, namely: to obtain an admission from the pursuer. His position was not that he had involved Ms Fox as part of a prank. Again the terms of Ms Fox's statement appear to me once more to undermine the defender's credibility.

[63] As regards the Employment Tribunal the defender's position was that he was too unwell to defend it and that he had sought an adjournment which was refused. It was his position that this was why the cause was undefended. However, the reason for the matter not being defended as set out in the Employment Tribunal's decision was his failure to comply with a case management order. Again this difference between the documentation and his evidence appeared to me to undermine his credibility.

[64] The defender in cross-examination admitted that after the audit results obtained by him in March 2008 he had gone out with the pursuer for a drink. This seems to me at best very odd behaviour. I do not believe that anyone who had just been advised of the pursuer's criminal conduct would go out for a drink with her. Again this evidence seemed to undermine his credibility regarding these allegations.

[65] The defender in his examination-in-chief denied seeking to blame the pursuer in relation to the offences of which he was eventually convicted in the course of his trial. However in cross-examination he was referred to 6/13 of process, an article in the Daily Telegraph in which the following was set out as regards what was said at his trial:

"Mr Devine said at the end of 2007 he started receiving inquiries from journalists about his expenses claims - which had previously been filled out by Miss Kinley.

He said 'They asked why I had the highest paid office manager - one thought we were having a relationship which we weren't.'

'They seemed to have specific information about claims that had been made'.

Mr Devine said he grew suspicious of Miss Kinley and when he checked his expenses claims, he claimed she had paid herself £1,000 in overtime and £4,300 as a bonus.

'I was astonished at what I found' he said.

Mr Devine said he confronted her and she then went off sick for six months before resigning.

She subsequently took him to an employment tribunal, the court heard."

[66] When the above article was put to him his answer was this: "To my knowledge I did not say this in my trial...No memory of this". I do not accept the defender's position that he had not said this at his trial. I can see no reason for the defender being misquoted. It is not a matter which he could have forgotten. This, to my mind, was an occasion when the defender was caught out in his evidence and shown to be lying.

[67] The defender in cross-examination specifically said that the document which was produced to him in March 2008 following the audit was 7/15 of process. However, when that document is examined it contains on the face of it information which post-dates March 2008 and therefore this document could not have been produced to him in March 2008. This again undermines his credibility.

[68] In relation to the bonus which it was his position the pursuer had falsely claimed, the defender stated in evidence this: he had told the pursuer, when she advised him that she had claimed the bonus, to withdraw the application for it as he had told her that she should not make such a claim. However, he went on to say that after telling the pursuer to withdraw the claim he had not at the time checked with the Fees Office to see that she had done this. The defender in his evidence made it abundantly clear that so far as he was concerned the issue of the bonus was a major one between him and the pursuer. It was clear from his evidence that his position was that the pursuer was not willing to obey his instructions regarding this matter. In these circumstances, it appeared to me if what he was saying was true, he would have, at that time checked with the Fees Office to make sure that this application for a bonus payment had in fact been withdrawn. It made no sense, if this evidence was true, that he would not do so. In fact he made no such checks. This again undermined his credibility.

[69] The defender was asked in cross-examination what he had done in response to the pursuer's refutation of his allegations. It became clear from his evidence that he had done nothing. His position was this: "House of Commons said dealing with it. Basically advice got from Fees Office was resolve it with a payment".

[70] Given the serious allegations he was making about the pursuer's conduct in relation to her running of his constituency office. I cannot see any circumstances in which the House of Commons' attitude would have been as he stated. This evidence appeared to me to be utterly implausible. It is difficult to imagine any circumstances in which the House of Commons would have advised the making of a payment where there was any truth in the allegations which were being made by the defender of serious criminal misconduct on the part of the pursuer in relation to the running of his constituency office. What underlay his allegations was the misappropriation of public funds and the House of Commons was bound to take a serious attitude regarding this if the allegations had any validity. In my view this evidence also undermines the credibility of his evidence regarding these allegations. The only occasion in which the House of Commons authorities appeared to take this matter seriously was when the Director of Operations wrote a letter to the police, referred to at para 22 of the Employment Tribunal findings in fact and as the Tribunal pointed out this was based on "false information" provided by the respondent. The House of Commons authorities' position changed thereafter as is evidenced by their payment of £17,500 towards the pursuer's award.

[71] When asked why he was willing to give the pursuer a reference as earlier set out his explanation was that this was as part of a compromise. This made no sense to me. Why would the defender be offering a reference to someone he alleged had behaved in such a fashion? If the defender had any belief in the allegations he was making he would not have been prepared to give such a reference.

[72] The defender in examination-in-chief stated that in June 2008 he had signed a form giving the police access to all his claim forms. However in cross-examination 6/71 of process, a document dated 10 June 2009, was put to him. In that document the defender is said to have said this:

"There was a report that a letter was being sent to the police asking them to investigate me but I have been assured by senior officer that is totally false.

Innuendo.

'So I have decided to ask the police to investigate the claims which have been made against me'".

[73] Despite the above being shown to him the defender insisted it was in June 2008 that he gave the police his forms. This was another occasion when the defender was caught out in cross-examination. I had no reason to believe that anything stated within the said document was other than accurate. The date issue was of some importance as the defender was insisting that all these matters had come to light in 2008 and he was seeking to deal with them in 2008.

[74] Lastly, I note that the judge in the defender's trial said this about him: "lying in significant parts of the evidence that he gave" (6/30 of process).

Decision with respect to the issues

[75] Having reviewed the whole evidence in the case and concluded for the above reasons to accept the whole evidence of the pursuer and Ms McDonald as credible and reliable and to reject the defender's evidence as incredible, I turn to the issues which I earlier stated arose in this case.

[76] First there was the issue of communication of the statements by the defender, I believe that, given my conclusions with respect to the evidence I am entitled to hold as follows: that the statements set out at 7E to 8E of the closed record were communicated to Eilidh McDonald and that statements about the pursuer being the subject of police investigations were made to several councillors and politicians. I did not hear any evidence from such persons, however, the pursuer in her evidence spoke to the defender making such statements to these persons and for the reasons above stated I was prepared to accept her evidence. She also stated in her evidence that similar statements to those made to Ms McDonald had been made by the defender to Linda Chatwin. Again, although I did not hear from Ms Chatwin I was prepared to accept this evidence given by the pursuer. There was no dispute that the similar statements at 6A to B of the closed record had been communicated by the defender to the pursuer in the said letter.

[77] Secondly there was the defender's position that these statements were substantially true. I conclude without difficulty that the defender has not made out this defence. Rather, I conclude that the pursuer has shown them to be false. In this context I observe that despite the defender continuing down to the date of his trial and beyond, to assert that the pursuer has indulged in criminal misconduct and the police being aware of these allegations no criminal proceedings have ever been taken against the pursuer.

[78] Moreover, there was the issue of whether the statements by the defender were made maliciously. For the reasons already given I have had no difficulty in concluding that the defender when he made these statements to the pursuer and others knew them to be false.

[79] I believe it has been clearly established that the defender was not exercising any legal, moral or social duty in writing the letter of 2 October 2008. In my view it was clearly established that this was done with malicious intent, so there was no question of any qualified privilege attaching to that letter or to any other communication.

[80] The pursuer has therefore I conclude proved that she was defamed by the defender.

Damages

The effect on the pursuer

[81] The pursuer's evidence on this issue was: that as a result of these allegations she had been unable to sleep at night, as she had been very afraid of the police coming to her house. It was very difficult to get another job. She had been unemployed for 6 months after her constructive dismissal. She felt that people's perception had been that there was "no smoke without fire". The allegations had been embarrassing to her and they had had an effect on her whole family. It was her position that the allegations had been given wide currency. The allegations were known at Westminster where she knew people, and in particular it had become known within the Fees Office at Westminster. It had become known in local political circles in Scotland. It was her position that if one went to the web and put in her name all these matters came up on the screen.

[82] Evidence on circulation of the statements was perhaps in this case a little lacking. However, circulation among those working within the House of Commons and in local political circles, appear to me to have been established. There does seem to have been some wider circulation of the allegations as spoken to by the pursuer. The matter appeared to be on the web, and easily accessible by the use of her name. I accordingly accepted that wider circulation within the general community was established. I accepted that her reputation within the political community and wider general community was damaged.

[83] So far as considering the issue of damages I sought to separate the circulation of the statements arising from the defender's trial and otherwise. It appeared to me that any repetition of these allegations which arose from the defender giving evidence at his trial and the quoting of that evidence in the media were protected by absolute privilege.

[84] It appears to me that these allegations are of a serious nature in that they allege criminal misconduct and impugned the pursuer's honesty. I am satisfied that the pursuer has suffered significant distress as a result of these allegations.

[85] I observe that the defender continued to insist on the veracity of these allegations right to the end of the proof. As I have earlier set out I am satisfied that when he made these statements he knew them not to be true and that they were made maliciously.

[86] I do not believe that in assessing damages there were any particular mitigating factors to which I could have regard.

[87] In my view the taking of the plea of veritas and its insistence upon until judgment has resulted in further distress to the pursuer.

[88] As to the approach to the assessment to damages I have had regard to the observations of Lord Doherty in Munro v Brown at paragraphs 51 and 52:

"[51] I approach the assessment of damages on the basis that damages in the law of Scotland are awarded as reparation, and not as punishment, vindication or example (Winters v News (Scotland) Ltd at page 829E; Walker, page 461; Stair Memorial Encyclopaedia, The Laws of Scotland, Vol.15, Obligations paragraph 550). The pursuer is entitled to solatium for her hurt feelings and for the damage to her reputation. She does not advance any claim for patrimonial loss.

[52] While it is proper for me to take account of the level of awards made in other defamation cases in Scotland (Winters v News (Scotland) Ltd at page 831E), in Baigent v British Broadcasting Corporation, at paragraph [22], the Inner House observed:

'Every case of defamation is unique in respect of both the content of the slander and its effect upon the victims and it therefore follows in our view that even comparison with other decided cases in that area is of very limited value'".

[89] In my view having regard to the whole circumstances an appropriate award for solatium is £15,000. I attribute 80% to the past and apply interest thereon at the rate of 4% per annum from 1 June 2008 to date of decree giving a total figure of £17,816.

[90] There was a second head of damages in which the pursuer sought an award for disadvantage on the labour market. There was no real evidence on this issue beyond the pursuer advising me that it had taken her some 6 months before she had obtained alternative employment. I am not persuaded that the pursuer has made out a case for a payment under this head.

Disposal

[91] I shall sustain the pursuer's first plea-in-law, repel the defender's plea-in-law and grant decree for payment by the defender to the pursuer of the sum of £17,816 with interest at the rate of 8% per annum from the date of decree until payment. I will reserve the issue of expenses.