OUTER HOUSE, COURT OF SESSION

 

[2011] CSOH 117

 

A519/09

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD DOHERTY

 

in the cause

 

GAIL MUNRO

 

Pursuer;

 

against

 

DEREK BROWN

 

Defender:

 

 

ннннннннннннннннн________________

 

 

 

Pursuer: Dunlop QC; Simpson & Marwick, Solicitors

Defender: Paterson, Solicitor Advocate; Tods Murray LLP

 

 

6 July 2011

 

 

Introduction
[1] The pursuer is an accomplished curler. In February 2008 a women's team "skipped" by the pursuer won the Scottish Ladies Curling Championship. The pursuer was skip and the other members of the team were Karen Addison, Ann Laird and Lyndsay Wilson. The team thereby qualified to represent Scotland at the World Ladies Curling Championships in Vernon, Canada in March 2008. A reserve player, Lynne Cameron, was selected to join the team. The defender was the National Coach. He was employed by the Royal Caledonian Curling Club ("RCCC"), the sport's governing body in Scotland. He had ultimate control and responsibility in relation to team selection for games at the Championships in Vernon. The Team Coach was Rhona Martin - who had represented Scotland and the United Kingdom in numerous international competitions. She won a gold medal at the 2002 Olympics. Four other support staff travelled with the Scotland team (Kenneth More, Cate Brewster, Nancy Murdoch and Mandy Belch).

[2] The team did not fare well in the Championships. It won its first game but then lost eight games in a row. The eighth defeat was by Japan on the evening of 26 March 2008. At a team debriefing session ("the debrief") later that night the defender told the pursuer that she was being dropped from the team for the game against Italy the next day. The pursuer left the debrief. The meeting went on to discuss tactics for the Italy game. After the debrief had been concluded another member of the team, Ms Wilson, told the defender that she was upset at the pursuer being dropped and did not wish to play unless the pursuer played. At around midnight that night a discussion took place between the pursuer and Ms Martin in Ms Martin's hotel room. The pursuer and Ms Martin also had a briefer discussion at around breakfast time the next morning.

[3] Neither the pursuer nor Ms Wilson played in the team's final two games. These games - against Italy and the Czech Republic - were both played on 27 March 2008. A team of three women, comprising Ms Addison, Ms Laird and Ms Cameron, represented Scotland in each game.

[4] Immediately after the Italy game the defender gave a press conference. At the press conference he stated that the pursuer had been given the opportunity to play against Italy but that she had refused to play.

[5] As a result of what the defender said at the press conference it was widely reported in the press and other media that the pursuer had refused to play for Scotland. Reports appeared in various newspapers in the United Kingdom and Canada (in the Scotsman, The Canadian Press, and the Eye Opener of 28 March 2008; in the Daily Record, the Daily Mail, and The Times of 29 March 2008; in the Annandale Observer; and in Scotland on Sunday on 1 June 2008). The BBC and the Canadian Press Agency reported that the pursuer had refused to play. Similar reports appeared on various websites including those of Slam! Sports, CBC Sports, and the RCCC.

[6] In this action the pursuer sues the defender for defamation. She avers that what the defender said at the press conference was false and defamatory. The defender maintains that what he said was true. On behalf of the defender it is accepted that if it was untrue it was defamatory.

[7] I heard evidence and submissions at a proof before answer over the course of three days. The defender had been ordained to lead at the proof. The witnesses called by the defender were the defender, Karen Addison, Kenneth More, Ann Laird, Cate Brewster, Colin Grahamslaw and Rhona Martin. The witnesses called by the pursuer were the pursuer, Alan Cowan, Lyndsay Wilson, Fiona Hardie and John Munro. There were two Joint Minutes.

 

Disputed matters
[8] The matters in dispute were (i) whether the pursuer had been asked by Rhona Martin if she would play in the Italy game; (ii) if so, whether she refused to play; (iii) if she was not asked, whether the pursuer indicated to Rhona Martin that she would not play for the team if the defender asked her to.

 

The pleadings
[9] In her Condescendence the pursuer averred:

"COND. III...(U)pon the pursuer returning to the hotel, the pursuer spoke with Rhona Martin. Rhona Martin did not ask the pursuer to play in the game against Italy. She did raise the possibility that the defender might ask the pursuer to return to the ice. The pursuer considered it unlikely that the defender would make such a request and she responded accordingly. She did not state that she would refuse to go back on the ice. At no stage did she refuse to play for the Scotland team. The following morning, Rhona Martin advised the defender of her discussions with the pursuer. She did not advise the defender that the pursuer had refused to play for Scotland. She suggested to the defender that he speak direct with the pursuer. The defender declined to do so. At the rink in the course of the game against Italy, Rhona Martin was told by the defender that he planned to state on the RCCC website that the pursuer had "refused to go back on the ice". Rhona Martin advised the defender that he could not properly say that, as he had not asked the pursuer to return to the team...

COND. IV. Following the game against Italy the defender attended a press conference. At the press conference the defender stated that the pursuer had been given the opportunity to play in the game against Italy but that she had refused to play..."

[10] The defender responded:

"Ans. 3 ...Shortly after the debrief finished, one of the team members, Lyndsay Wilson, refused to play in the Italy game if the pursuer wasn't playing. The defender asked Lyndsay Wilson to play and she refused...the defender intended to check with Lyndsay Wilson the next morning whether she had changed her mind and would play for the Scotland team in the Italy game and, if she still refused, he intended asking the pursuer to play. When the pursuer returned to the hotel in the early hours of the morning she told Rhona Martin that she would not go back on the ice if the defender asked her to. By saying so, the pursuer refused to play for the Scotland team. In the morning, prior to the Italy game, the pursuer and Lyndsay Wilson left the hotel without speaking to the defender. The pursuer and Lyndsay Wilson were requested not to travel with the other members of the team to the Italy game to prevent morale being lowered for the other team members. The defender did not speak to the pursuer or with Lyndsay Wilson prior to the game against Italy. Rhona Martin was clear in her discussions with the defender and others that the pursuer had refused to play for Scotland in any further games during the World Championships in Vernon. In particular, Rhona Martin advised Ann Laird, Kenny More, Karen Addison, Nancy Murdoch and Lynn Cameron that the pursuer was refusing to play....The first time that Rhona Martin maintained to the defender that she had not asked the pursuer to play again was on Friday 28th March, 2008 on the way back from a trip to the ski resort of Silver Star...

Ans. 4 ...Admitted at the press conference that the defender stated that the pursuer had been given the opportunity to play in the game against Italy but that she had refused to play....The defender's statements were true in their entirety....Esto the pursuer did not refuse to take the ice again, which is denied, the defender in good faith relied upon the information provided to him by Rhona Martin when being interviewed by the press after the Italy game."

 

[11] The pursuer's pleas-in-law were:

"1. The pursuer having been defamed by the defender as condescended upon is entitled to reparation from him therefrom.

2. The sum concluded for being reasonable reparation to the pursuer for the said defemation decree should be pronounced as concluded for."

The defender's pleas-in-law were:

"1. The pursuer's averments being irrelevant and lacking in specification the action should be dismissed.

2. The statements made by the defender being true the defender should be assoilzied from the conclusions of the summons.

3. The pursuer not having suffered loss or damage as a result of the statements made by the defender the defender should be assoilzied.

4. In any event the sum sued for being excessive and not a reasonable estimate of the pursuer's loss decree should not be pronounced as concluded for."

 

The evidence on the disputed issues
[12] The critical issue was what was said in the discussion between the pursuer and Rhona Martin in the latter's hotel room in the very early hours of 27 March 2008, and in the briefer conversation at around breakfast time. The only witnesses present throughout the discussion in Ms Martin's room were the pursuer and Ms Martin. Ms Wilson was present for a short period at the beginning of the discussion but then left.

[13] The pursuer's evidence was that after the debrief she and Ms Wilson had obtained permission to go and see their families in a nearby hotel. When they returned at about midnight they had gone to Ms Martin's room. (While they were knocking on her door the defender had opened his door briefly). Ms Wilson had only stayed in Ms Martin's room for about five or ten minutes. The pursuer may have been there for about an hour. She had been angry and upset about the night's events. At no point had Ms Martin asked her to play in the game against Italy. What Ms Martin had done (in a light-hearted way) was to suggest that it was possible that the defender might ask the pursuer back for the Czech game. The pursuer's recollection was that she indicated she thought it very unlikely that the defender would do that. She accepted she might have said "There is no fucking way he will ask me." The pursuer did not say that if he did she would tell him "where to go". She had not said anything which might have led to Ms Martin forming the impression that she would refuse to play if asked. She was not at any point during the discussion given the opportunity to return to the ice to play for Scotland in either the Italy game or the Czech game, and she did not refuse to play. She had not said she was not prepared to play if asked. At around breakfast time on the same morning Ms Martin had come to her room. She had requested that the pursuer and Ms Wilson not travel on the team minibus but make their own way to the arena. At that time the pursuer had said to Ms Martin that if the defender wanted her to play in the Czech game he would have to telephone her. The pursuer went to the arena. She took her playing gear with her. She watched the Italy game that afternoon and the Czech game that evening. The defender did not make any contact with her that day. It was not until the day after the press conference that the pursuer discovered what the defender had said about her. She was outraged. She went to see the defender in the team hotel. She demanded a retraction. In cross-examination she was asked whether, if on the morning of the Italy game she had been asked by the defender to play, she would have played. She replied that she probably would have done.

[14] Ms Martin's evidence was that at the debrief the defender had pulled rank on her and had taken the decision to drop the pursuer for the Italy game. That had been one possibility which had been discussed between the defender and Ms Martin before the debrief, but when Ms Martin had not taken that action during the debrief the defender had stepped in. Only the defender had the power to reinstate the pursuer to the team. Immediately after Ms Wilson's discussion with the defender following the debrief the defender had said to Ms Martin that the team would play with only three players. The defender had not asked her to offer either the pursuer or Ms Wilson the opportunity to play in the Italy game. When the pursuer had come to her room late that night she had been upset. She questioned why matters had not been handled differently. She was struggling to understand why, even if the defender had decided she should not play as first stones, she had not been given the opportunity to play further down the team. Ms Martin had suggested that the defender had taken her off the team for the Italy game but it was possible he might ask her back for the Czech game. The pursuer had said "There is no fucking way he will ask me." The pursuer had thought that the defender had made his decision and that she would not be back on the ice. Overnight Ms Martin had become increasingly concerned about the prospect of Scotland fielding a team of only three players. The next morning she had spoken to the defender. She had said to him that the pursuer was not happy, that she would probably tell him "where to go", but that he had to phone her. She explained to the court that she had got that impression because the pursuer had been angry and upset. She had said to him more than once that he should phone the pursuer but that she would probably tell him "where to go", " to fuck off". That morning in the hotel she had told the players and some of the support staff what she had told the defender - that the mood she was in the pursuer would probably tell the defender to "fuck off" if he asked her to play. At around breakfast time she had gone to the pursuer's room to suggest that the pursuer and Ms Wilson make their own way to the arena. On that occasion the pursuer had said that if the defender wanted the pursuer to play in the Czech game he would have to phone her. While on the bench during one of the matches on the 27th March (the pursuer thought it was the Italy game but she accepted it was possible it was the Czech game) the defender had referred to a proposed statement for the RCCC website which was to indicate that the pursuer had refused to go back on to the ice. Ms Martin had said that was not correct - that the pursuer hadn't been asked to play. The defender had said "But you asked her to play", to which Ms Martin had responded along the lines "No - you removed her from the ice and you didn't ask me to ask her if she would play". The following day while driving back from lunch at the Silver Star ski resort the defender had said to her that there was trouble brewing in the press and that they had better get their stories straight. Ms Martin had said she was not going to lie. The defender had said "But you told me she said there was no fucking way she would play". Ms Martin had replied that she hadn't asked the pursuer to go back on the ice. In evidence-in-chief she accepted that during a discussion with the defender later that evening she had said "I didn't officially ask Gail to play". She explained that what she had meant by that was that she wasn't in a position to ask her to go back on the ice. It wasn't within her power. Ms Martin spoke to having kept daily notes while she was in Vernon. She had been advised that there might be a disciplinary hearing and that she should make notes. She had typed the statement 6/23 of process on the journey home using handwritten notes that she had made. She thought the handwritten notes may have been destroyed by her once the typed notes were printed off. She confirmed that the typed notes were an accurate record of events as she recalled them.

[15] Ms Wilson spoke to being unhappy at the pursuer being dropped, to suggesting to the defender that the pursuer play in her stead, and to telling him that she wasn't happy playing if the pursuer wasn't playing. She recalled the defender saying the team would play with three players. Later that night she had been in Ms Martin's room for only a few minutes. During the time she was there Ms Martin had not invited the pursuer to play against Italy or suggest that there was any prospect of her doing so. During that time the pursuer had not refused to play. On the day after the Italy game the pursuer had shown her a newspaper report that said the pursuer had refused to play. The pursuer had been angry because that was wrong and she had wanted to get it corrected.

[16] The defender indicated that at the end of the debrief following the Japan game he had said he needed to pull rank to change the team for the game against Italy. The pursuer was dropped. The words used by him may have been "I'm pulling rank - you're off the ice." The pursuer had been very unhappy and had left the meeting. There followed a discussion of tactics for the Italy game. After the debrief had ended Ms Wilson had returned to the room. She had offered to sit the game out to let the pursuer play. She said she would not play if the pursuer wasn't playing. That night the defender had texted the chief executive of the RCCC, Colin Grahamslaw, saying that he had dropped the pursuer, Ms Wilson was refusing to play, and that the team might have to play with only three players. The defender accepted that only he had authority to put the pursuer back in the team. In the early hours of the next morning he had heard doors banging and voices in the corridor outside his hotel room. He had opened his door and had seen the pursuer at Ms Martin's door. He had said "Speak in the morning." After he rose the next morning he had met Ms Martin on the stairs. He had asked what had happened the night before, and where the pursuer and Ms Wilson were. Ms Martin had said "Gail told me there is no fucking way she will go back on the ice." He said that he asked Ms Martin if she had asked the pursuer if she would play; that Ms Martin had indicated she had, and that the pursuer had said there was "no fucking way". Ms Martin had said "Phone her if you want but she'll just tell you to fuck off". The defender had gone back to his room to telephone Mr Grahamslaw. Mr Grahamslaw had asked him to go back to Ms Martin and to make absolutely sure what the pursuer had said. He had spoken to Ms Martin outside the arena and she had confirmed what the pursuer had said. During the Italy game there had been no discussion with Ms Martin about what would be said on the RCCC website. Such discussion as there had been had taken place during the Czech game. Ms Martin had not said during either game that the defender could not say that the pursuer had refused to go back on the ice - the conversation Ms Martin suggested had taken place between them during the Italy game had not taken place. His recollection was that the first time Ms Martin appeared to have had second thoughts about what the pursuer had said to her was on the day following the Italy game. He, Ms Martin, and others had been in his car travelling back from lunch at Silver Star. He had wanted to clarify things with her because of what had happened overnight in the media. He had asked her to confirm what she had said the day before. She had then said that he ought to have spoken to the pursuer. After their return to the hotel the pursuer had come to see him and a discussion between the pursuer, the defender and Ms Martin had taken place. At that time Ms Martin had said that she had not "officially" asked the pursuer to play and that she thought that the defender should have asked her. In the defender's view Ms Martin had realised that what she had said the previous day had had repercussions, and she was attempting to absolve herself from responsibility for what had happened.

[17] Towards the end of the defender's evidence I asked him about the entry for Thursday 27 March 2008 in Ms Martin's statement (6/23 of Process). The entry noted that that morning Ms Martin had told the defender that he should phone the pursuer and ask her to play. It continued:

"I did say to Del [the defender] that the mood Gail was in she would probably tell him where to go! I then went up and asked Gail and Lyndsay if they would mind not coming on the team van as I had to prepare the 3 to perform on the ice and they agreed to walk over to the arena to watch.

I then met Derek in the corridor and said I had spoken to Gail and she said if Del wanted her back on the ice he had to phone her. He said that my assumption of her reaction was good enough for him not to phone but I asked him again to phone her. There was no contact by Derek to the 2 non players at all in the Hotel. At this stage I said to Del he had pulled rank on me and he had not asked Gail to go on the ice so I had not asked her."

I enquired of the defender whether it was correct that Ms Martin had said that the pursuer would probably tell him where to go. His recollection was that Ms Martin had indeed said "She'll probably tell you to fuck off" but that she had also said "She'll just tell you to fuck off."

[19] Ms Addison indicated that she was struggling to remember events three years down the line. She recalled being told by Ms Martin at the hotel on the morning of the Italy game that they would be playing with a team of three players. She could not remember exactly what Ms Martin had said. As best as she could recall, she thought Ms Martin had said the pursuer had been asked to play but had said no.

[20] Mr More was a sports scientist with the Scotland party. He had gone downstairs late on the morning of the Italy game to discover, at second hand, that the team was to play with three players and that the pursuer had been asked to play but had refused. He did not hear what Ms Martin had to say until during the warm up before the Italy game. At that time Ms Martin said that she had asked the pursuer if she would play and that the pursuer had replied "no fucking way". Ms Martin said to him that the defender should have phoned the pursuer. Mr More's evidence as to his response was "I said why should he expose himself to that sort of phone call given what you have told him". The next day he had been in the defender's car on the way back from Silver Star and had been aware of a conversation between the defender and Ms Martin. The defender appeared to be "re-establishing" with Ms Martin the terms of the conversation she had had with the pursuer. He recalled Ms Martin saying "But Derek, you should have phoned her." Mr More had interjected that it would not have made any difference. He didn't recall her saying that she hadn't asked the pursuer to play.

[21] Ms Laird indicated that she had been told by Ms Martin on the morning of the Italy game that a team of three players was to be fielded. Ms Martin said she had asked the pursuer if she would play and the pursuer had said "there was no fucking way" she was playing.

[22] Ms Brewster was a performance coach. Her evidence was that on the morning of the Italy game she had heard the defender ask Ms Martin whether the pursuer was going to play. Ms Martin's answer had been "No fucking way." There had then been a little bit of discussion about what had been said and the defender asked if he should phone the pursuer. In examination-in-chief she indicated that Ms Martin had said something along the lines of "She'll just tell you to fuck off". In cross-examination it was put to her that what Ms Martin said had in fact been "She'll probably tell you to fuck off." She accepted that "it was probably along those lines".

[23] In a Joint Minute of Admissions (No. 27 of Process) the parties agreed:

"That the evidence of Lynne Cameron and Nancy Murdoch would be to the effect that:

1.1 on the morning of 27 March 2008...Rhona Martin either said to or was heard saying by Lynne Cameron...and Nancy Murdoch...that "There is no fucking way she [the Pursuer Gail Munro] is taking to the ice again"; and

1.2 Neither Lynne Cameron or Nancy Murdoch heard the Pursuer, Gail Munro, make any make any such remarks to Rhona Martin."

 

How the allegations affected the pursuer
[24] The pursuer was angered and greatly upset by the defender's allegations. Her reputation and standing in curling - in Scotland, Canada and elsewhere - "just cascaded around me". She had to face disciplinary proceedings on her return home. Since the allegations she had not received the warm welcome she had formerly received at home and abroad. She continued to be hurt by the allegations. While some of her friends and acquaintances had stood by her, others had thought less of her. Some of the local population where she lived had sympathised with her, but others had not. By way illustration she described having been out for lunch recently and overhearing her name mentioned. When she had turned round an older gentleman had looked her in the eye and said "Aye, ye dinnae ken me but I ken you. You're the lass that didnae play for your country".

[25] Fiona Hardie, the pursuer's sister, went to Vernon as a supporter. She described the pursuer as having been devastated by the allegations. There had been long term consequences. The pursuer had lost confidence. She was unhappy now in social situations. The issue preyed on her mind every day. It consumed her whole life.

[26] The pursuer's husband, John Munro, also travelled to Vernon as a supporter. He was with her when she first discovered the allegations. She had been utterly shocked, angry, devastated. As time went on she had become more withdrawn. She was now reluctant to go out socially to anything other than family events. On occasion he had had to go to social events without her. Not everyone in the local area had supported her.

 

Contentions for the pursuer
[27] The only defence pled was veritas. The burden of proof was on the defender to prove the truth of all the material statements in the defamatory matter: everything injurious to the pursuer had to be justified (Gatley,Libel and Slander(11th ed), paragraphs 11.12 and 11.13; Fairbairn v Scottish National Party 1979 S.C. 393 per Lord Ross at page 399).

[28] The central question was what passed between the pursuer and Ms Martin. No witness present during the conversations supported the defender's case. Both the pursuer and Ms Martin were very clear that Ms Martin did not ask her to play and that the pursuer did not refuse to play.

[29] Other matters prayed in aid by Mr Dunlop were: (i) the defender had dropped the pursuer; (ii) only he had the authority to reinstate her; (iii) at no time did he attempt to do so; (iv) long before the defender had any of the relevant discussions with Ms Martin he was contemplating playing with only three players; (v) Ms Martin's understanding at the material time was that the defender had decided to play with only three players; (vi) both the defender and Ms Martin were aware that she had no power to countermand the defender's decision to drop the pursuer; (vii) the defender neither asked the pursuer to play nor instructed Ms Martin to ask her to play; (viii) the defender did not speak to the pursuer at all prior to the press conference; (ix) there was a real possibility that poor communication between the defender and Ms Martin may have resulted in the defender having misunderstood her; (x) the contemporary record - Ms Martin's statement - had been compiled on the journey back from Vernon from handwritten notes which had been made at the time of, or very soon after, the relevant events.

[30] Mr Dunlop observed that the defender was asking the court to reject the evidence of both the pursuer and Ms Martin; and instead to infer from what Ms Martin had said to the defender and others that Ms Martin had asked the pursuer to play against Italy, and that the pursuer had refused. That would be an extraordinary course to follow in the face of the evidence of both witnesses that that is not what happened.

[31] Mr Dunlop suggested that the defender did not attack the credibility of the pursuer because it was plain from her demeanour in the witness box that she was telling the truth. She impressed as a person who, to this day, remained genuinely upset at a serious wrong done to her. Nor was there any persuasive reason to question her reliability. In that regard the pursuer's reaction when she discovered the allegations against her was very revealing. She had been outraged and distressed. She demanded an immediate retraction. Her reaction was far more consistent with there having been the conversation she and Ms Martin spoke to, than with there having been a conversation of the sort the defender asks the court to infer took place.

[32] There were, of course, some difficulties in reconciling Ms Martin's recollection of what she said to the defender and others on 27 and 28 March 2008 with the evidence of the defender and at least some of those witnesses: but it would be an unwarranted leap to reject the evidence of both the pursuer and Ms Martin on that account. It was far more likely that those differences were attributable, in the main, to a lack of good and clear communication between Ms Martin and the others, than that Ms Martin's evidence as to the conversations between her and the pursuer was untruthful or unreliable. In this connection it was important to remember that Ms Martin's evidence was consistent in its essentials with the contemporaneous record which she had prepared.

[33] Mr Dunlop's secondary position was that if it was established that the pursuer had not been asked to play, but that she had said clearly and unequivocally that she would not play if asked, she would still have been defamed. The defender would still have falsely alleged that the pursuer had been offered an opportunity to return to the team, and would also have falsely alleged that the pursuer had been in breach of her player's agreement with the RCCC (by refusing to play when asked). For the defence of veritas to succeed the defender had to prove the truth of all aspects of the statement which were injurious to the pursuer's character (Gatley, paragraphs 11.12 and 11.13). There was a difference between a considered refusal when requested to play and a heat of the moment refusal to play after having been dropped.

[34] As to damages, Mr Dunlop submitted that the allegations were and remain, very upsetting for the pursuer. They had damaged her reputation - both at home and abroad. They had been published far and wide. At best for the defender he had made inadequate inquiry before he made them. If Ms Martin's recollection was correct - that she had made clear to him before the press conference that she had not asked the pursuer to play and that the pursuer had not refused to do so - he had made the allegations in the knowledge that they were false. To this day there had been no retraction. Defending the action to judgment on a plea of veritas had involved repetition of the libel and had caused the pursuer further distress (Baigent v British Broadcasting Corporation 2001 S.C. 281 at page 284 F-G; Walker, Delict (2nd ed.) p. 794; Gatley, paragraph 9.2). A substantial award of damages was necessary in order to vindicate the pursuer's reputation. An appropriate award would be г30,000. Three-quarters of that should be attributed to the past with interest at half the legal rate from 27 March 2008 to the date of decree. In the event that Mr Dunlop's secondary position applied a lesser award would be appropriate.

 

Contentions for the defender
[35] Mr Paterson moved the court to sustain the defender's second plea-in-law, failing which his third and fourth pleas-in-law. The defender's first plea-in-law was not insisted upon.

[36] Mr Paterson asked me to reject the evidence of the pursuer as unreliable, and to reject the evidence of Ms Martin as incredible and unreliable. He submitted that the pursuer was in a highly charged and emotional state at the material time. Her recollection of what was said could not be relied upon. The sheet anchor of the defender's case was what Ms Martin told the defender and other members of the Scotland party about her conversations with the pursuer. That evidence was inconsistent with the accounts of the conversations spoken to in evidence by the pursuer and Ms Martin. The court should infer that Ms Martin did ask the pursuer to play in the Italy game and that she refused; or, alternatively, even if no such request was made of her, that she told Ms Martin that if the defender did ask her to play she would refuse. That would enable the plea of veritas to be upheld. Mr Dunlop's secondary position - and the suggested defamation by reason of a false claim that the pursuer was in breach of her player's agreement - was not the case pled.

[37] If I found for the pursuer Mr Paterson submitted that it would be appropriate to have regard to the level of awards made in Scotland in defamation cases: Winter v News (Scotland) Ltd 1991 SLT 828 at page 831E. The only other award he referred me to was that in Anderson v Palombo 1986 SLT 46. He accepted that the pursuer had had a relatively high standing in the curling world. He suggested that her conduct in leaving the debrief, her removal of Team Munro banners at the arena, and her lack of enthusiastic vocal support for the team during the Italy and Czech games diminished that standing. The fact that she faced disciplinary proceedings on her return home was not a relevant consideration - it formed no part of the case pled. Under reference to Cooper, The Law of Defamation and Verbal Injury (2nd ed.), p. 250 he acknowledged that where a libel was persisted in that could aggravate damages. He argued that here the defender had done no more than conduct a legitimate defence of the action, and that that ought not to aggravate damages (Baigent, at page 284E-F). In mitigation he argued that the allegations had been made in good faith on the strength of what Ms Martin had told the defender; and that they had been made at the press conference in answer to a question (Cooper, page 254 et seq.). He contended that the allegation that the pursuer had refused to play was a relatively trivial matter; and that having regard to this and to the pursuer's own conduct any award should be below the summary cause level of г5,000. He suggested that г4,500 would be an appropriate figure.

 

Discussion and decision
The merits
[38] I am not persuaded that I should reject the evidence of the pursuer and Ms Martin on the critical issues. I am not satisfied that on the evidence as a whole I should draw the inferences which Mr Paterson contended I should draw. In very large part I accept Mr Dunlop's submissions.

[39] The pursuer impressed me as a witness who was doing her best to tell the truth. It was very clear to me that she had been stung by the allegations and was still deeply hurt by them. I was not persuaded that her recollection of events could not be relied upon. Her reaction to finding out about the allegations appeared to me to be far more consistent with her account of the conversations with Ms Martin than with what Mr Paterson says I ought to infer was said. The undisputed context to the conversations was that the defender had removed the pursuer from the team; only he had authority to reinstate her; he had not instructed or requested Ms Martin to ask the pursuer if she would play; and he had not instructed or requested Ms Martin to ask the pursuer what her response to him would be if he asked her to play. Given that context it seems very unlikely that Ms Martin would have taken it upon herself, without authority, to ask the pursuer if she would play; or to ask the pursuer how she would respond if the defender asked her to play.

[40] Ms Martin was clear that she had not asked the pursuer to play; had not asked what her response would be if the defender asked her to play; and that the pursuer had not refused to play. Her evidence was substantially consistent with the pursuer's account, and with the contemporaneous record Ms Martin had kept. Nothing in her demeanour, or in any of her evidence as to the conversations with the pursuer, caused me to have any doubt about the credibility and reliability of her account of those conversations.

[41] It is true that some of the evidence of what Ms Martin said to the defender and other Scotland party members sits uncomfortably with her evidence of the conversations with the pursuer. I think it clear that Ms Martin did communicate to the defender and others - in emphatic language - that she thought it unlikely that the pursuer would go back on to the ice if asked. I do not accept that she told them she had asked the pursuer to return to the ice; or that the pursuer refused; or that she told them that the pursuer had said she would not play if asked. I accept that Ms Martin was simply predicting what the pursuer's reaction would be if she was asked. It is significant that the defender did recall Ms Martin say that the pursuer would "probably" refuse to play if he called her (albeit that he also recalled her saying that she would refuse to play). The evidence of Ms Brewster, Ms Cameron and Ms Murdoch does not support the contention that Ms Martin said she had asked the pursuer if she would play. Further, their evidence is not inconsistent with Ms Martin making a prediction. That leaves the evidence of Ms Addison, Ms Laird, Mr More and the defender. Ms Addison's recollection was very vague - I did not find her evidence to be of any assistance. I am left in doubt as to the reliability of Ms Laird's evidence that Ms Martin said she had asked the pursuer to play. As I understood her she was with Ms Cameron at the time, but Ms Cameron did not confirm this part of Ms Laird's evidence. I accept that Mr More was doing his best to recount events as he recalled them, but I am not persuaded that on all matters his account is reliable. He obtained his initial understanding of what had happened not from Ms Martin, but second hand at breakfast time. It was only later at the arena that he maintained he spoke to Ms Martin. My impression was that his understanding as to what had occurred was very much influenced by what he had been told by others; and I accept Ms Martin's evidence that he and other members of the support staff had, at an early stage, allied themselves with the defender in the controversy. Thus, for example, when it was put to him in cross-examination that Ms Martin's position was that she had never asked the pursuer to play his initial response was "That was very different from the account that I got that morning at breakfast". It was only subsequently that he went on to say that it was different from the conversation he had had with Ms Martin. Two examples of him allying himself with the defender were his response at the arena to the pursuer's suggestion that the defender should have phoned the pursuer; and his intervention in the discussion between the Ms Martin and the defender on the way back from Silver Star (to say that it would not have made any difference had the defender phoned the pursuer).

[42] In the whole circumstances I accept the evidence of the pursuer and Ms Martin as being credible and reliable on the critical matters. For the most part, where Ms Martin's evidence conflicts with the defender's evidence, I accept her account as being the more reliable one.

[43] However, I do not accept as reliable her recollection that she informed the defender on the morning of the Italy game, and during the game, that she had not asked the pursuer if she would play. In her evidence-in-chief she made no reference to telling the defender that before the game. It was only during cross-examination, and under reference to 6/23 of Process, that she recalled this matter. In relation to the conversation on the bench she accepted that it could in fact have been during the Czech game. That accords with the defender's recollection (although he differed as to the content of the conversation). It seems to me inherently unlikely that the defender would have said what he did during the press conference if Ms Martin had already told him that she had not asked the pursuer to play.

[44] I find that Ms Martin did not ask the pursuer to play, nor did she ask her if she would play if the defender asked her to. I hold that the pursuer did not refuse to play. I accept Ms Martin's evidence that what she communicated to the defender and others was her view as to the pursuer's likely response were she to be asked by the defender to play. It seems clear that on at least some of those occasions she used language apt to describe a prediction of the pursuer's probable response. In other instances what she said may have been over-emphatic, less apt to communicate a prediction, and more open to being understood as an assertion of the pursuer's position than as a prognostication by Ms Martin. While that might provide grounds for criticising poor communication on Ms Martin's part on those occasions, it does not cause me to doubt the evidence of the pursuer and of Ms Martin as to the terms of the conversations between them.

[45] It follows that the pursuer has proved her case and the defence of veritas fails. In those circumstances the pursuer does not need to rely on the secondary case advanced by Mr Dunlop. Nonetheless, I shall deal with it briefly. The action proceeds on the basis that the sting of the defamatory statement was that the pursuer refused to play for her country. There is no alternative case pled. There is no hint on record of the secondary case which Mr Dunlop developed during submissions (viz that even if the pursuer refused to play for her country she was not asked to; and that in those circumstances the defender's statement that she had acted in breach of her player's agreement with the RCCC was false and calumnious). Had I found that the pursuer had refused to play I would have assoilzied the defender.

 

Damages
[46] It is common ground that the pursuer's reputation in the curling world was lowered by the defender's statement and by its repetition by others. It is clear to me that there was also damage to her reputation in the wider community, and that the pursuer suffered and continues to suffer real distress as a result of the defamatory statement.

[47] In mitigation, I accept that the defender may have honestly believed the allegations he made to be true at the time he made them. That makes his conduct less culpable than if he had knowingly made false statements. Nonetheless, much of the responsibility for finding himself in the position he did must rest with him. Better management and communication on his part would have been likely to have avoided the scenario which unfolded. The fact that the statements were made in a question and answer session at a press conference is of little significance in the present case. The format of the conference was well known to the defender, and he knew full well that the absence of the pursuer and Ms Wilson from the team would a matter he would have to deal with.

[48] Both suggested mitigatory factors would have deserved greater weight if in the days, or even weeks, after the conference the defender he had issued a retraction. The fact is he did not. He continued, and continues, to maintain the truth of the statements he made. Whether pleading and maintaining a defence of veritas aggravates a pursuer's loss, injury and damage depends upon the circumstances of the particular case (Walker, Delict (2nd ed.), pages 786, 794). I am in no doubt that in the present case the taking of the plea and its insistence until judgment has resulted in additional distress to the pursuer and in continuance of the injury to her reputation. It has, for example, resulted in further publication of the allegations and the defence in the press and in the media during the hearing of the proof.

[49] I agree with Mr Paterson that no account falls to be taken of the disciplinary proceedings against the pursuer when assessing damages. The pursuer has no averments concerning those proceedings, and such evidence as was elicited at the proof about them arose only incidentally. There was no detailed examination of the terms of the complaint against the pursuer, and no exploration of whether there was a causal link between the allegations and the disciplinary proceedings.

[50] I consider to be ill-founded the contention that the pursuer's reputation and standing were diminished by her response to being dropped. In my view the pursuer's response was no better or worse than might reasonably have been anticipated in the circumstances. The decision to drop her completely from the team - from her position as captain - was a bolt from the blue to her. The way she was informed of the decision, and how she was treated after it was made, left much to be desired. Condemnation of her for removing Team Munro banners and for not being enthusiastic enough in her support of the team during the Italy and the Czech games struck me as unfair. In the very difficult circumstances in which she found herself the pursuer attended and supported the team during both games.

[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."

Anderson v Palumbo provides no assistance: the imputation there had a very limited effect. The imputation here was considerably less serious than the imputation in Winters. However it was undoubtedly hurtful and distressing to the pursuer. It also damaged her reputation. Prior to the allegations she was an international sportswoman of good standing. The allegations received widespread publicity. They diminished that standing. They have been persisted in by the defender for more than three years. In my opinion in the whole circumstances an appropriate award for solatium is г20,000. I attribute three-quarters of that sum to the past with interest thereon at the rate of four per cent per annum from 27 March 2008 until date of decree. Total damages are accordingly г21,950.

 

Disposal
[53] I shall sustain the pursuer's first plea-in-law, repel the defender's first, second and third pleas-in-law, and grant decree for payment by the defender to the pursuer of the sum of г21,950 with interest at the rate of eight per cent per annum from the date of decree until payment. I reserve meantime all questions of expenses.