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SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Menzies

Lord Wheatley

[2013] CSIH 14

A558/12

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in the reclaiming motion

ALAN MASSIE

Pursuer and Respondent;

against

CALLUM MCCAIG & OTHERS

Defenders and Reclaimers:

_______

Act: Summers QC, Galbraith; Lefevre Litigation (Pursuer and Respondent)

Alt: RW Dunlop QC, DG Hamilton; Francis Gill & Co (Defenders and Reclaimers)

1 March 2013

Background
[1] This is an action of defamation. On 19 December 2012, the Lord Ordinary granted interim interdict against the defenders, in terms of the pursuer's conclusion, prohibiting them:

"From defaming the pursuer by making, publishing or otherwise disseminating statements alleging or containing an innuendo that the pursuer's donation of £11,500 to the Gordon Constituency Labour Party was made in order to induce Labour councillors in Aberdeen Council to perform their public functions improperly by voting in favour of development proposals of Carlton Rock Ltd".

[2] The pursuer has a controlling interest in Carlton Rock Ltd, a property development company functioning in the Aberdeen area. Between March 2011 and May 2012, the pursuer donated £11,500 to the Gordon Constituency Labour Party, which operates in the Aberdeen area. Aberdeen City Council have under consideration applications for planning from Carlton Rock. The first defender is a Scottish National Party councillor on Aberdeen City Council and the second defenders are that party.

[3] On 26 October 2012, the first defender issued a press statement, as follows:

"Labour has received £11,500 in donations from [the pursuer] of Carlton Rock over the last 18 months. To put these donations into context: the [second defenders] spent a total of £8,000 in its council election campaign in Aberdeen. So it is not unreasonable to assume that Cllr. Crockett owes his position as Council Leader to the deep pockets of [the pursuer]. As such, it needs to be made abundantly clear to the public that the debt was not repaid by grateful Labour councillors voting in favour of Carlton Rock's development proposals. There is a clear conflict of interest here. In order to resolve it, Labour should either repay the money they have received from [the pursuer], or they should ensure that none of its councillors take part in decisions that will benefit Carlton Rock, including land deals and planning applications. I can reveal that the [second defenders] turned down a sizeable donation from an Aberdeen property developer in the run-up to the council elections. The donation was made in good faith, and with no 'strings' intended, but neither I, or my fellow [second defenders] councillors, would have taken part in any deliberations involving the developer in question".

[4] On 12 December 2012, the second defenders published an article on a website controlled by them. This was headlined "Labour's conflict of interest with property company director". The article referred to the donation of £11,500 and stated that Labour councillors within a local school trust had previously authorised the sale of a site to Carlton Rock for £7 million, despite there being a reportedly higher bid of £11 million. The article referred to a MSP calling for an urgent investigation into the role of the trust in the sale. The article continued that:

"Ironically, in June 2009, Labour councillor [Y] wrote to the council's City Solicitor urging her to investigate the links between [the pursuer] and former Liberal Democrat councillors".

The article repeated the full text of the first defender's statement.

[5] The pursuer's averments make reference to what he maintains are the natural inferences to be drawn from the statement and the article. Subject to a degree of repetition in earlier articles, the case is brought together in the following condescendence:

"6 The statements made and published by the first and second defenders are false and defamatory of the pursuer. The statements were made in a manner calculated to lower the pursuer in the minds of right thinking members of the public. The statement made by first defender ... falsely and calumniously represented by innuendo that the pursuer had given the Labour Party £11,500 with the intention and expectation that Labour councillors would thereafter consider themselves in his debt, and act improperly in the exercise of their public duties by voting in favour of development proposals for Carlton Rock. The website article ... further defamed the pursuer by repeating the first defender's statement and by adding further comment to strengthen the inferences of improper and criminal conduct".

[6] The averments allege continuing defamation by virtue of the issue and publishing of the statement and article. With specific reference to a meeting of the Council scheduled for 19 December 2012, it is said that the pursuer reasonably apprehends that the defenders will continue to make defamatory comments of the nature already alluded to and that:

"In the absence of any evidence or factual basis for such an allegation or innuendo, any repetition by the first defender of this statement in such a context would not be in accordance with the proper performance of his public duties and would be malicious".

[7] The Lord Ordinary's Opinion makes reference to the submissions of the pursuer that the statement and article carried an innuendo of a defamatory nature. He noted that the defenders' submission was, first, that the statement and article were not capable of bearing the innuendo contended for and that, in any event, secondly, what was complained about amounted to no more than fair comment. It was also said by the defenders that, thirdly, the material was covered by qualified privilege. The final submission for the defenders was that, in relation to the granting of interim interdict, regard had to be had to section 12(3) of the Human Rights Act 1998, which prohibited interim relief being granted in circumstances such as the present, unless the court was satisfied "that the applicant is likely to establish that publication should not be allowed".

[8] The Lord Ordinary's conclusions were expressed in relatively short compass. He found that the whole tenor and language of the statement was one involving an obligation or debt owed by the Labour Party to the pursuer. In terms of Russell v Stubbs 1913 SC (HL) 14 (Lord Shaw at pages 23-24), the reasonable or natural inference to be drawn from the words used was that the Labour councillors had reached, or would reach, a view in favour of Carlton Rock's development proposals because of the donation made by the pursuer. If that were correct, then the innuendo contended for by the pursuer had been made out. That innuendo was of criminal conduct. Accordingly, the Lord Ordinary was of the view that a prima facie case of defamation had been made out.

[9] In relation to qualified privilege, this was dismissed with the simple sentence that said:

"I was not satisfied that the case of qualified privilege had been established".

The Lord Ordinary did not address the issue of fair comment at all. He did turn to the issue of balance of convenience and noted that, in terms of Gatley on Libel and Slander (11th ed) paras 27.2-27.3 and Burn-Murdoch: Interdict para 379, the court would be slow to interfere with legitimate political discussion. He took the view that that point was reinforced by the provisions of section 12(3) of the 1998 Act, which he encapsulated as meaning that the pronouncement of interim orders was prevented "unless publication is ultimately disallowed after a full hearing of a case" (para [8]). He found that the test in section 12(3) had been satisfied by virtue of the pursuer's case being "relatively strong" (ibid). Accordingly, and apparently based solely on the strength of the merits, the Lord Ordinary held that the balance of convenience favoured the pronouncement of the interim order.

Submissions
Defenders and reclaimers

[10] The defenders contended that, as a generality, the Lord Ordinary's interlocutor was not supported by the content of his Opinion, which lacked any proper consideration of qualified privilege and any consideration whatsoever of fair comment. The likelihood test under section 12(3) subsumed the traditional requirement to demonstrate a prima facie case and the court had to consider any relevant defences (Dickson Minto v Bonnier Media 2002 SLT 776, Lord Carloway at para [6]; Greene v Associated Newspapers [2005] QB 982, Brooke LJ at paras 22, 46-47).

[11] The pursuer had failed to make out a prima facie case that a defamatory meaning was "a reasonable, natural, or necessary interpretation" of the words used in the statement or article (Russell v Stubbs 1913 SC (HL) 14, Lord Shaw at 23). The hypothetical "reasonable reader" would have to be unduly suspicious and prone to selecting a defamatory meaning in order to derive any allegation of criminality, which was the only case the defenders had to meet (Macleod v Newsquest (Sunday Herald) 2007 Rep LR 5, Lord Macphail at para [14] following Gillick v British Broadcasting Corporation [1996] EMLR 267, Neill LJ at 272-3). The focus of both the statement and article had been to criticise the Labour councillors in respect of a potential conflict of interest. This focus could not have related to the pursuer, who was merely a donor and had no public duty. Any criminality could only have been on the part of the Labour councillors.

[12] The interdict was too broad in its terms and would impact on the defenders' ability to discharge their public duties. The real difficulty was what the defenders could or could not say. There required to be far greater precision in the form of interdict (British Data Management v Boxer Commercial Removals [1996] EMLR 349, Hirst LJ, delivering the judgment, at 361; Murdoch v Murdoch 1973 SLT (Notes) 13).

[13] Even if the words complained of were capable of bearing the innuendo contended for, the defence of "fair and honest comment" applied (Joseph v Spiller [2011] 1 AC 852, Lord Phillips at paras 2-3). The comment was clearly a matter of public interest drawn from statements of fact, which were admitted to be true, and it was, or could reasonably have been inferred to be, a "deduction, inference, conclusion criticism, remark, [or] observation" (Branson v Bower [2001] EMLR 800, Latham LJ at paras 11-12 citing Gatley on Libel and Slander (9th ed, para 12.6) under reference to Clarke v Norton [1910] VLR 494, Cussen J at 499; Jeyaretnam v Goh Chok Tong [1989] 1 WLR 1109 Lord Ackner, delivering the judgment of the Privy Council, at 1113). The comment was not so extreme that it could not have been made honestly. The defence applied to the contention that there was a conflict of interest; the conflict having been derived from admitted facts. The defence also applied to any innuendo up to and including an allegation of criminality which was similarly derived from those facts.

[14] The defence of qualified privilege extended to statements made in the course of the defenders' council or public duties, including allegations of criminality, and was only avoided by proof of malice (Shaw v Morgan (1888) 15 R 865, LJC (Moncrieff) at 869; Lightbody v Gordon (1882) 9 R 934, LP (Inglis) at 937, Lord Shand at 940). The pursuer had made no relevant averments of malice; political spite was not sufficient (Joseph v Spiller (supra), Lord Phillips at para 69 under reference to Tse Wai Chun v Cheng [2001] EMLR 777 Lord Nicholls at para 48). The test of malice was subjective. The pursuer had to aver that it was the motive of the defenders to injure the pursuer or that their publications had been reckless without consideration of whether their content was true (Horrocks v Lowe [1975] AC 135, Lord Diplock at 149-151). If the court accepted that the innuendo was demonstrated, it had been unintentional. The first defender did not believe the content of the innuendo to be true. In these circumstances, qualified privilege would not be lost given the unintended nature of the innuendo (Loveless v Earl [1999] EMLR 530, Hirst LJ at 538-539).

[15] The Lord Ordinary had conflated the test to be applied under section 12(3) of the 1998 Act and the balance of convenience. He had failed to give sufficient weight to the need to protect freedom of speech, especially in the political arena (Macmillan Magazines v RCN Publishing Co [1998] FSR 9). If the interdict stood, the defenders' rights were stifled with no remedy. By contrast, it was relevant that damages were available, if the pursuer ultimately succeeded in his action (Dickson Minto v Bonnier Media (supra)).

Pursuer and respondent

[16] The pursuer sought to have the reclaiming motion refused and the interlocutor of the Lord Ordinary affirmed. The finding of innuendo had been a discretionary decision. The pursuer had demonstrated a prima facie case as understood in the context of section 12(3) (Dickson Minto v Bonnier Media (supra)). In any event, the Lord Ordinary's interpretation of the statements complained of ought to be afforded some weight.

[17] The terms of the interdict were not so wide that it should not have been granted (Burn-Murdoch: Interdict, pp 96-98). A distinction had to be drawn between the importance of clarity in framing an interlocutor and the essential requirements to plead a relevant case of defamation (cf British Data Management v Boxer Commercial Removals (supra)). The full extent of the defamatory words was known and it was perfectly clear what the defenders were prohibited from saying.

[18] The pursuer had to satisfy the court only that the words complained of were capable of bearing the innuendo alleged. Regard had to be made not only to the language of the publication (Russell v Stubbs (supra), Lord Kinnear at 19) but also its wider context (Macleod v Newsquest (supra), Lord Macphail at para 22). The statement was published on an official political party website and the ordinary reader would have been entitled to rely on it as an accurate expression of fact on a matter of public interest. The clear innuendo was that the pursuer made donations to a political party in order to induce Labour councillors to perform their public functions improperly. Whether or not this constituted criminal behaviour, in terms of the Bribery Act 2010, it was defamatory in the sense that it would have lowered his reputation in the minds of right thinking members of the local community. If the true import of the statements complained of had only been a conflict of interest on the part of the local councillors, this could have been made plain. However, no reference was made to the statutory scheme for dealing with such complaints (Ethical Standards in Public Life etc (Scotland) Act 2000; Councillors' Code of Conduct (3rd edition, December 2010, Standards Commission for Scotland)). In any event, comments on conflict of interest and allegations of improper conduct were not mutually exclusive.

[19] Whilst the Lord Ordinary did not address the issue of fair comment, the requirements of the defence (Joseph v Spiller (supra); Tse Wai Chun v Cheng (supra)) had not been met. The innuendo was an assertion of fact rather than comment. The solitary expression "it is reasonable to assume" could not be taken to benefit the entire publication and there was no other language indicating this was a case of comment (cf Jeyaretnam v Goh Ghok Tong (supra) at 1113).

[20] In the context of a local councillor's duty to conduct public business within his constituency his obligation to disseminate information was restricted to persons in the constituency, who alone had an interest in receiving that information (Loveless v Earl (supra), Hirst LJ at 538; Shaw v Morgan (supra); Horrocks v Lowe (supra)). The statements complained of were published on a national website, which effectively constituted worldwide dissemination. Therefore, the defence of qualified privilege could not be made out unless the defenders demonstrated a wider public interest.

[21] Neither the defence of fair comment nor qualified privilege applied to statements made maliciously. If the court found that the innuendo had been intended, since the defenders had admitted they never believed it to be true, they cannot be said to have demonstrated an "honest belief" and the comment was therefore malicious (Tse Wai Chun v Cheng (supra), Lord Nicholls at para 79; Joseph v Spiller (supra) Lord Phillips at para 3). The defenders' lack of belief in the innuendo would generally be conclusive of express malice (Horrocks v Lowe (supra), Lord Diplock at 151). The lack of any apology by the defenders was an adminicle of evidence in considering whether malice was made out.

[22] The Lord Ordinary did not address the balance of convenience as a separate test but, in any event, that balance favoured the grant of interim interdict in the interests of the parties. The innuendo did not serve the purpose of legitimate political debate and did not prevent debate concerning any conflict of interest on the part of local councillors. The pursuer was a property developer and prominent businessman in the local community with an ongoing relationship with the council in relation to various current planning applications. Accordingly it was critical that his reputation was not damaged by unjustified imputations concerning his dealings with council members.

Decision

[23] There are essentially four issues of substantive law to be addressed in the determination of this reclaiming motion, notably whether: (1) the Lord Ordinary erred in holding that there was a prima facie case of defamation; that is to say whether the statement and/or article are capable of bearing a defamatory innuendo of improper, if not criminal conduct, on the part of the pursuer; (2) even if innuendo was demonstrated, the context of the article and statement attracted qualified privilege; (3) in any event, what was said amounted to "fair comment"; and (4) the pursuer was "likely to establish", after proof, that publication should be prohibited. Were the pursuer to succeed on these points, the issues of "balance of convenience" and the scope of the interdict would still fall to be considered.

Innuendo
[24] The court accepts that the Lord Ordinary adopted the correct test for determining what, if any, innuendo was to be drawn from the words actually used. In Russell v Stubbs 1913 SC (HL) 14, Lord Shaw (at 23) described the test as follows:

"Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable, natural, or necessary interpretation of its terms?"

In applying that test, a "strained and sinister interpretation" based upon "mistrust, jealousy, or suspicion" is to be avoided. The innuendo must be of conduct which would, in terms of Sim v Stretch [1936] 2 All ER 1237 (Lord Atkin at 1240):

"tend to lower the [pursuer] in the estimation of right thinking members of society generally".

This test is an echo of a much earlier one found in Smith: Reparation (1864) (at 188) and said (Norrie: Defamation at 9) to be derived from Grotius (Naturrecht, ss 306). It is an objective one, involving a consideration of what the reasonable man would take from a reading of the material complained of (Duncan v Associated Scottish Newspapers 1929 SC 14, Lord Anderson at 20). Whether the test is met is not a question involving the application of judicial discretion. It does, however, require judgment, whether that of a judge or jury.

[25] Both parties have sought to place what they contend to be reasonable interpretations on the words used. It was pointed out by the defenders, with some force on the one hand, that the thrust of the statement and article is directed towards the propriety of the councillors' conduct in not recognising a conflict of interest. That, it was argued, is what the reader would take from the words used and not that the pursuer was effectively bribing the councillors (eg contravening the Bribery Act 2010, s 1) to approve his company's proposals. The statement and article had made it clear that the payment had been made to the constituency Labour party and not to individuals. The pursuer, on the other hand, argued persuasively that the statement and article are phrased in terms of an obligation of debt owed by the councillors to the pursuer by virtue of the payment, which had been, or would be, repaid by favourable consideration given by these councillors of the pursuer's interests as promoted by his company, namely Carlton Rock.

[26] Although the matter is far from being without difficulty, the reasonable man would conclude, from a reading of the material, that what was being suggested was that the pursuer was engaged in what might, at least, be called corrupt practices (if not bribery under the 2010 Act); being the donation of sums to a local Labour party with the intention that this persuade the party's councillors to treat the pursuer's interests more favourably than would be objectively justifiable. The court is therefore of the view that the innuendo complained of is at least "likely" to be made out after proof. The innuendo is one of corrupting local politicians, which the general public would regard as criminal conduct.

Qualified Privilege
[27] In the ordinary case, the necessary ingredient of malice (animus injurandi) in defamation is presumed from the use of defamatory words used against another. That will not occur when the words are said in a context which attracts qualified privilege; that is where public policy dictates that the speaker should express himself freely (Nelson v Irving (1897) 24 R 1054, LJC (Macdonald) at 1057). In that situation, malice must be averred and proved. There is no doubt that a local councillor, speaking upon matters within the council's ambit, may be covered by such privilege (Shaw v Morgan (1888) 15 R 865, LJC (Moncrieff) at 869), if what is said is versans in officio (ie whilst engaged in a public duty; ibid, interlocutor at 872). It is not necessary that what is said took place specifically in the context of a council meeting (Mutch v Robertson 1981 SLT 217), but what is said has to be linked to the councillor's public duties.

[28] The court has been unable to reach a concluded view on whether or not the statement would be covered by qualified privilege in the absence of further information on where and how it was released. All that the court was told was that the first defender released a "press statement". The context of that release is obscure. The defence is, in any event, more difficult once the web article is taken into account, even if the court does not share the view that, because the donation was to a local constituency, it would cease to be a matter of public interest when published on a national website. However, the court is unable to conclude that the defenders, and especially the second defenders, have set out a sound basis upon which to establish the defence of qualified privilege.

[29] The court is not, however, persuaded that there are relevant and specific averments of malice. In that regard, a bare averment of future malice of the type quoted above is insufficient (Suzor v McLachlan 1914 SC 306, LP (Strathclyde) at 312; see also Elder v Gillespie 1923 SLT 32).

Fair Comment
[30] The defence of fair comment has been said to have emerged from that of qualified privilege (Norrie: Defamation at 136, citing Cooper; Defamation and Verbal Injury (2nd ed) (see p 178). However, this would be slightly surprising given the nature of the two defences and the absence, apart from the need for the subject matter to be one of public interest, of common features especially in relation to the effect of proof of malice (infra). Consistent with the general right of freedom of expression:

"the law will not allow a person to recover damages from another for something the latter has said or published about him, although it may be disagreeable, if the utterance is nothing more than rational liberty of speaking would permit or common sense would support" (Cooper (supra) p 179).

As it was put in Archer v Ritchie & Co (1891) 18 R 719 (Lord McLaren at 727):

"The expression of an opinion as to a state of facts truly set forth is not actionable, even when that opinion is couched in vituperative or contumelious language".

In more modern times, Lord Ross was content in Fairbairn v Scottish National Party 1980 SLT 149 (at 152) with defining the defence by quoting from Walker: Delict (2nd ed at 841) that:

"in fair comment the defender must show that each statement of fact is true, that the matter is one of public interest, and that the comment on the facts is fair".

The issue of whether something is a fair inference from the true facts is not elaborated upon and is left to be decided upon the basis of what Cooper (supra) describes as "common sense". The court proceeds on the basis that this is an accurate reflection of the current law. Interestingly, and distinguishing the defence from that of qualified privilege, malice is not part of the equation (cf Walker (supra) at 841-2 under reference to English authorities only). Presumably, the reasoning is that if something is "fair comment" derived from true fact, the fact that it is maliciously made has no relevance. The comment may be made maliciously and be intended to lower the pursuer in the estimation of right thinking people. However, as in the case of a successful plea of veritas, the statement made, whatever the motive of its maker, ceases to be actionable.

[31] The court's attention was drawn to the developments which have occurred in relation to "fair comment" in England and Hong Kong. The history of the subject is recounted at length, and with some trenchant criticism of previous judicial dicta, by Lord Phillips in Joseph v Spiller [2011] 1 AC 852. Lord Phillips adopted (para 3), with one slight modification, the requirements for the defence which had been enumerated by Lord Nicholls in Tse Wai Chun v Cheng [2001] EMLR 777 (at paras 16 - 21). He ultimately determined that the defence should be renamed "honest comment" on the basis that Lord Nicholls had stated (para 20) that one of the requirements was that the comment "must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views" (see also Reynolds v Times Newspapers [2001] 2 AC 127). There appears, from Lord Phillips' comments, to be an ongoing debate in England on whether the focus ought to be on whether, looking at the matter subjectively, a person has acted maliciously or on an objective test of whether the "obstinate and prejudiced person" could "have honestly based the comment ... on the facts" (Lord Phillips at para 108). Such a level of sophistication would, as Lord Phillips recognises, remove the issue of fair comment, which has no doubt hitherto been regarded as a matter of fact, from the consideration of a jury (ibid para 116).

[32] It remains important to recognise that this court is concerned with what the law in Scotland actually is and not what it might become, should it develop in the same way as it has in England, in some parts of the Commonwealth (see Gatley on Libel and Slander (11th ed, 1st Supp) para 12.25) or elsewhere. It is important for the court to hear submissions on what the law is in this jurisdiction, before being taken to what may, or may not, be persuasive dicta from other jurisdictions. As matters stand at present, it is sufficient to proceed on the basis that the law put succinctly is that an "expression of an opinion as to a state of facts truly set forth is not actionable" (Lord McLaren supra). The defence is available whether the comment is express or by innuendo (see eg Moffat v London Express Newspaper 1950 SLT (notes) 46).

[33] It is thus a primary requirement for the defence of fair comment that the facts must be true and relate to a matter of public interest. Both of these qualifications appear to be made out in this case. The pursuer is a prominent local businessman. He did make the donations to the constituency Labour party, whose conduct of local affairs will be a matter of local, often national, and sometimes international, interest and concern. The pursuer's company did have development proposals upon which councillors from that constituency party were being asked to vote. In such circumstances, the court considers that a local councillor, such as the first defender, or a political party with a presence on the council, such as the second defenders, would be entitled to raise the matter of the pursuer's donations as one involving, as was commented expressly, a potential conflict of interest. The court is also of the view that it is within the bounds of legitimate public controversy for those having an interest to convey a message, by innuendo or otherwise, that the motive of a property developer, such as the pursuer, in donating large sums of money to a local political party was and is to further his business interests by persuading the members of that party to support his developments. In short, it is fair comment to say that, in these circumstances, the councillors are "in debt" to the developer; even if the developer is ultimately proved to be entirely altruistic in his intentions and intended the donations to assist the local party in its general initiatives designed to assist the citizens of Aberdeen and its environs. Accordingly, on the assumption that the court is correct in holding the innuendo to be made out, and that the circumstances were not privileged, nevertheless what was said in the statement and the article constituted "fair comment" upon true facts stated on a matter of public interest.

Human Rights Act
[34] Section 12(3) of the Human Rights Act 1998 provides that, in relation to the granting of "relief" which might affect a person's Article 10 right to freedom of expression, the court should not grant such relief "so as to restrain publication before trial" unless the court is satisfied that the applicant "is likely to establish that publication should not be allowed". Translating that into language appropriate for use in Scotland, if a pursuer seeks an interim interdict prohibiting a defender from publishing his views, the court should not grant such an order unless it is satisfied that the pursuer "is likely to" succeed in his conclusion for a permanent interdict. This poses a higher hurdle for a pursuer, in this class of cases, than that of demonstrating a "prima facie case" at common law (cf Fairbairn v Scottish National Party 1980 SLT 149). It must be taken to have superseded the common law test (Dickson Minto v Bonnier Media 2002 SLT 776, Lord Carloway at para [5]). The court notes, quantum valeat, that there is an even higher hurdle in English practice (Greene v Associated Newspapers [2005] QB 972, following Bonnard v Perryman [1891] 2 Ch 269) where an interlocutory injunction is only granted, apparently, if it is clear that the defence will fail. That is not the law in Scotland.

[35] Given that the Lord Ordinary: (1) appears to have given no thought to the strength of a defence of fair comment; (2) has provided no reason for his conclusion on qualified privilege; and (3) has equiparated the likelihood of success with the pursuer having a "relatively strong case", the court must reassess all the relevant factors in order to decide upon whether the test in section 12(3) is met. It must follow from the court's view on the defence of fair comment that the court does not consider that it is likely that, at a proof, the pursuer will succeed in demonstrating that the publication of the statement or the article should be prohibited as defamatory. Indeed, even if the court were wrong in its conclusion on fair comment, upon the material presently available, given the weaknesses in the pursuer's case in relation not only to that defence but also that of qualified privilege and what might ultimately be held to be the correct innuendo, the court does not consider that the pursuer "is likely" to succeed in obtaining a permanent interdict. It follows from this alone that the interim interdict must be recalled.

Balance of Convenience
[36] Two matters remain to be considered. First, there is the question of whether, if the court is wrong in relation to the substantive points and the effect of section 12(3) of the 1998 Act, the Lord Ordinary erred in what was a discretionary decision on where the balance of convenience lay. As was said in Waddell v British Broadcasting Corporation 1973 SLT 246 (LJC (Wheatley) at 253):

"The decision on the balance of convenience is often a difficult and delicate one, which has to be resolved by individual judgment".

However, there are at least two significant features in a case such as the present which ought to be taken into account and which do not feature at all in the Lord Ordinary's reasoning. First, the material complained of has already been published and thus any interim order pronounced now will only have been partially effective in preventing the perceived wrong. Secondly, if it is determined that the material is defamatory and actionable, the pursuer will be entitled to damages in respect of its publication. He may be able to recover damages of a greater amount in due course if the defamation is persisted in, although the effect of the continuing elements of the wrong may be relatively minor in terms of quantum. Both of these features ought to have featured prominently in any reasoning on balance of convenience (see Kwik-Fit-Euro v Scottish Daily Record 1987 SLT 226, Lord Mackay at 229). Such reasoning ought also to have involved a balancing of the defenders' Article 10 rights to freedom of speech and the pursuer's Article 8 right to respect for his private life (see Reynolds v Times Newspapers [2001] 2 AC 127, Lord Nicholls at 190). The absence of any indication that the Lord Ordinary did have regard to these relevant considerations causes the court to conclude that it must reconsider the question of where, even if the pursuer was likely to succeed, the balance of convenience lay. That likelihood is itself an important factor, as the Lord Ordinary undoubtedly did recognise. However, when it is balanced against the fact that publication has already been made, its value diminishes. Especially in matters of politics involving public figures, protection of the right of freedom of expression is particularly important (Lingens v Austria [1986] 8 EHRR 407, at para 42; Ukrainian Media Group v Ukraine [2006] 43 EHRR 25, at para 39). Reassessing the relevant factors accordingly, the court is of the view that the balance of convenience lies in refusing the interim interdict.

Scope of the Interdict
[37] The second matter concerns the scope of the interim interdict granted. It is correct to say that an interim interdict, and hence any conclusion for interdict, must be framed in such a way that the person interdicted "shall be in no doubt as to the measure of his liability" (Burn- Murdoch: Interdict at 97, under reference to Middleton v Leslie (1892) 19 R 801, LP (Robertson) at 802). Practical specification is what is required. The problem with the current interim order is not its imprecision. The court considers that it is perfectly clear that the defenders are, in summary, interdicted from disseminating statements containing an innuendo that the pursuer's donation was made in order to induce the councillors to vote in favour of Carlton Rock's development proposals. There is no difficulty with this. The problem is with the scope of the order, which prohibits the first defender, and no doubt any other SNP councillor, from making reference to the donation in situations which would clearly be covered by qualified privilege, such as statements at a council meeting. In the absence of malice being relevantly averred, the court considers that such an order is too wide. However, no lesser or different formulation was suggested by the pursuer (cf Murdoch v Murdoch 1973 SLT (Notes) 13 at 14). In these circumstances, the court would have been bound to recall this interim interdict on this ground also.

Conclusion
[38] The court will accordingly allow the reclaiming motion and recall the interim interdict granted on 19 December 2012. It only remains to observe that in the defenders' note of argument, it is stated that "... the marking of the appeal probably suspended the effect of the interim interdict." Lest there be any misapprehension, the marking of a reclaiming motion does not have such an effect. During the currency of an action, an interim interdict remains effective until suspended or recalled (see Stair Memorial Encyclopaedia: Civil Procedure (reissue) para 262 under reference to Maclaren: Bill Chamber Practice at 42).