IAN KENNEDY v. JOHN ALDINGTON AND OTHERS
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 58 |
| A5023/01 | OPINION OF T G COUTTS, QC, (Sitting as a Temporary Judge) in the cause IAN KENNEDY Pursuer; against JOHN ALDINGTON and OTHERS Defenders: ________________ |
Pursuer: Henderson; Haig-Scott & Co WS
First Defender: Laing; Drummond Miller WS
Second and Third Defenders: Wade; Brechin Tindal Oatts
6 May 2005
Introductory
[1]In this action the pursuer seeks damages from the defenders jointly and severally in connection with an alleged defamation and its consequences. The defamation was said to be contained in a letter, written by the first defender and published by the third, which challenged the authenticity and description of a motor car advertised for sale in "The Automobile", the magazine published by the third defenders. Whether the pursuer's averments are relevant is discussed below but the first matter which requires decision is raised by the defenders' pleas of forum non conveniens.
Forum non conveniens
[2]The pursuer's averments on the matter of jurisdiction disclose a tenuous connection with Scotland. All the parties are domiciled in England. The only connection averred with Scotland, apart from the publication and circulation of copies of the magazine "The Automobile" there, is "the pursuer has substantial Scottish connections. His father was born in Scotland and he was married, to his first wife, there. He has relatives in Scotland and a number of fellow car enthusiasts reside there."
[3]It was not disputed, however, by the defenders that there is concurrent jurisdiction in Scotland and England. The question is whether the action would be more appropriately determined in the English courts.
[4]Actions such as this are subject to a limitation period of one year in the English courts, but not so in Scotland. The pursuer avers that no action has been raised in England but that he had instructed solicitors to raise proceedings there. He goes on to aver:
"They failed to pursue his claim prior to its being time barred. There is no realistic prospect of proceedings being raised in England. The pursuer raised proceedings against Vizards Staples and Bannister for negligence and breach of contract in failing to raise an action in time. The pursuer settled the action on the basis that these proceedings had commenced in Scotland. He received the sum of £25,000 in full of his claim against said Solicitors. His costs of pursing the litigation exceeded the sum received by him. Defenders are likely to seek to strike out any action based on such a limitation period in the event that it is raised now. Accordingly, the alternative forum suggested by the defenders is not appropriate. The pursuer has no other means of vindicating his reputation or of obtaining damages from the defenders."
[5]Although the defenders' pleadings contain a general denial, when pressed, they did not assert that they would refrain from seeking to strike out any action raised in England in the event that it was raised there at the present time.
[6]Examination of the English statutory provision discloses that there is a discretionary exclusion of the time limit for actions for defamation in section 32A of the Defamation Act 1996.
[7]That section reads:
32A.-(1) If it appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which-
(a)the operation of section 4A if this Act prejudices the plaintiff or any person whom he represents, and
(b)any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to-
(a)the length of, and the reason for, the delay on the part of the plaintiff;
(b)where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A-
(i) the date on which any such facts did become known to him, and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
(c)the extent to which, having regard to the delay, relevant evidence is likely-
(i) to be unavailable, or
(ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.
(3) In the case of an action for slander of title, slander of goods or other malicious falsehood brought by a personal representative-
(a)the references in subsection (2) above to the plaintiff shall be construed as including the deceased person to whom the cause of action accrued and any previous personal representative of that person; and
(b)nothing in section 28(3) of this Act shall be construed as affecting the court's discretion under this section.
(4) In this section "the court" means "the court in which the action has been brought.
[8]In Scotland the limitation period for defamation is three years and for malicious falsehood, six years.
[9]It can be seen from the pursuer's averments that the only substantial matter in favour of the action's being pursued in Scotland is that it would fail if it were pursued in England.
[10]The pursuer's averment is not disputed in any detail. I treat it as accurate. I was satisfied that if the pursuer were to attempt to raise his action in England it would not survive the limitation plea.
[11]This matter was debated at length on procedure roll, discussion on this point occupying four-fifths of the time spent, despite the strictures of Lord Templeman in Spiliada (below) who said that the solution of disputes about the relative merits of trial in England and trial abroad is pre-eminently a matter for the trial judge before whom submission should be measured in hours not days. However, the question of whether a court should send an action away to another jurisdiction in which it was bound to fail due to the operation of the law of limitation operating in that jurisdiction, as opposed to possible failure on fact or merits, although discussed in the authorities has not been subject to any definitive view.
[12]Discussion of this matter began with Sim v Robinow 9 R 665. There the Lord Ordinary in refusing to sustain the plea forum non conveniens said "the general rule was that the court must exercise its jurisdiction unless there are very clear and weighty grounds for refusing to do so". Lord Kinnear, who discussed the matter fully and whose opinion has been referred to in the subsequent cases, said at page 668 "the plea can never be sustained unless the court is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of all the parties and for the ends of justice". He discussed at page 669 sist as opposed to dismissal to reflect the plea and, obiter, said that he would not have been of the opinion that to sist process was an expedient course to follow, for,
"if this court is not a convenient forum for the trial of the cause then the action ought to be dismissed, but, if this court is a convenient forum, then I can see no reason why the action should not go on in the ordinary way."
He continued:
"In all these cases there was one indispensable element present when the court gave effect to the plea of forum non conveniens, namely, that the court was satisfied that there was another court in which the action ought to be tried as being more convenient for all the parties and more suitable for the ends of justice."
[13]In Societe du Gaz de Paris v Armateurs Francais 1926 SC(HL) 13, the only important factor in favour of Scottish jurisdiction was that arrestments had been used in Scotland to found jurisdiction but another important matter was that in France where the defenders operated, a defence of limitation of liability was open to them. The Lord Chancellor at page 17 said "From the beginning to the end of the case there is not a breath of Scottish atmosphere". Lord Dunedin at page 18 stressed the importance of the use of appropriate as the translation for conveniens. The plea was sustained. The action was dismissed.
[14]The defenders referred to and founded upon Spiliada Maritime Corporation v Cansulex Ltd 1987 1 AC 460. It requires first to be noted that the circumstances of that case were that what was being considered was the English procedure for an order for service outwith the jurisdiction in terms of RSC Ord 11 R 4(2). However the court held that in deciding the appropriateness of granting the order the court had, as in applications for a stay of proceedings founded on the ground of forum non conveniens, to identify in which forum the case could more suitably be tried in the interests of all the parties and to further the ends of justice. The court specifically applied Lord Kinnear's dictum and Lord Gough fully discussed in general terms the application of the plea of forum non conveniens. It should be noted that the question was whether to stay the proceedings, not whether to outrun the case.
[15]While this debate was adjourned Lady Smith in Banks v CGU Insurance plc delivered an opinion on 5 November 2004. There she discussed the applicable law in a reparation action which was thus not similar to the present. She did so in the following terms which can be adopted as an appropriate resumé:
"1.the burden rests on the defender to persuade the court to uphold the plea;
2.the plea cannot be upheld unless the court is satisfied that there is another court that has competent jurisdiction and that it is appropriate that the action be tried there in that it can be tried there more suitably for the interests of all the parties and the ends of justice. Of all the applicable principles, this is the fundamental one. It would appear to have its origins in the dicta of Lord Justice Inglis in the case of Clements v Macaulay (1886) 4 M 583 as repeated by Lord Kinnear in the case of Sim v Robinow and it was applied by Lord Jauncey in the case of Credit Chimique v J Scott Engineering Ltd;
3.the fact that the pursuer has ex hypothesi, founded jurisdiction as of right in accordance with the law of this country can be regarded if not as, of itself, giving her a legitimate advantage, as imposing upon the defender the burden of showing not only that Scotland is not the natural or proper forum but to go further and establish that there is another available forum which is clearly or distinctly more appropriate;
4.in considering whether there exists some other forum which is clearly more appropriate for the trial of the action, the court should look first to see what factors there are which point in the direction of the other forum proposed by the defender, asking whether it is the one with which the action has the most real and substantial connection. In the course of such an examination in the Credit Chimique case, Lord Jauncey drawing on not only Sim v Robinow but also the cases of Clements v Macaulay and Societe du Gaz de Paris v Armateurs Francais 1925 SC 332 and 1926 SC(HL) 13, referred to the need to look for 'weighty reasons' pointing in favour of the other forum;
5.if, at that stage, the court concludes that there is no other available forum which is clearly more appropriate it will ordinarily refuse to sustain the plea;
6.if, however, the court concludes that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily uphold the plea unless there are circumstances by reason of which justice requires that it should, nevertheless not be sustained. The burden is, at this stage, on the pursuer and the court should take into account all the circumstances of the case, including any which go beyond the matter of connecting factors such as, for instance, the question of whether or not, in the foreign jurisdiction, the pursuer is likely to obtain justice."
[16]Lady Smith went on to discuss the situation which might arise where a limitation period had elapsed. She said that in such cases, following the reasoning of Lord Gough, practical justice should be done which may, if the pursuer has unreasonably allowed the limitation period to expire in the other jurisdiction, involves a plea of forum non conveniens being sustained even although that will mean the pursuer's claim would inevitably be defeated by a plea of time-bar in the other jurisdiction.
[17]However in Scotland Lord Wellwood in Lowe v Lowe 1893 1 SLT 43 determined that it would not be doing equal justice to parties to compel the pursuer to go to a court where his action must necessarily fail due to the operation of limitation. Lord Wellwood did not, of course, give consideration to the equities if there was a question of negligence causing the expiry of the time limit.
[18]Whether the action is dismissed as a result of the plea or sisted appears to be of significance. Lord Jauncey in Credit Chimique v J Scott Engineering Ltd 1979 SC 406 had before him, it appears from the body of the opinion, argument as to whether sist or dismissal was appropriate. He decided to sist in order to enable the pursuers to pursue their claim in the French court rather than dismiss, despite holding that the French court was more appropriate. He thus left open a recall of the sist and the possibility of continuing the action in Scotland.
[19]It is important that in the earlier cases where dismissal was granted, the matter of limitation of actions as contrasted with prescription did not arise. It might well be undesirable to consider whether the failure to raise the action elsewhere was the result of negligence because this opens issues of fact wider than those of simple appropriateness. Further, if the effect of sustaining the plea were to result in the dismissal of the action that would appear to be inequitable in an action concerning the publication of defamatory matter. In this case presently before the Court not only are there concurrent jurisdictions but there are also separate grounds of fact. On any view of the authorities, of which more below, a pursuer has a Scottish claim when a wrong is done to him in Scotland. To dismiss the action on the ground of forum non conveniens would in the circumstances of this case deprive him of a remedy to which he is entitled thus in effect determining the merits of the action on this procedural point. All things being equal sist might have been appropriate since an English action would encompass all damages. All things however are not equal. There seems to be little point in sisting an action so that it may be brought elsewhere and there dismissed with the result of determining a cause of action for a defamation which is undoubtedly Scottish. This, it should be noted, only arises because of limitation provisions. But for those there would be no difficulty in sisting or dismissing the action since the whole damages could be awarded elsewhere. However, since it is known that the whole damages cannot now be awarded in England and since the Scottish court has concurrent jurisdiction, it is not clearly in the interests of justice or of the parties if the Scottish court which is the choice of the litigant does not continue with, and determine the action brought before it.
[20]That is a matter which has been considered to be of importance in some of the examples listed at [54] below. This is demonstrated by the onus being upon the defenders to persuade the court to sustain the plea. The pursuer, by averring the relevant limitation periods applicable in Scotland and England has demonstrated that even if the English courts might have been appropriate, they no longer are.
[21]On the whole matter I shall not sustain the defenders' plea of forum non conveniens. That requires me to consider the defenders' pleas to the relevancy and specification of the action as laid in Scotland.
Historical background
[22]The pursuer purchased a vehicle, 50 LMU, in 1985. It had been originally sold in chassis form, having been exhibited in the London Motor Show in 1956/1957. The pursuer's pleadings contain a history of previous owners and the fitting of bodywork thereto, originally with a view to racing, although the car was never raced. It has all along been referred to as a Frazer Nash.
[23]The pursuer considered various methods of restoring or improving the vehicle which when he bought it, was not held in high esteem by the vintage car fraternity nor, in particular, by those who were devotees of the Frazer Nash mark. The pursuer's pleadings narrate various contacts and discussions he had with persons of knowledge and influence about his project, i.e. producing an acceptable version of a Frazer Nash vehicle. These included the first defender and a Mr Jenkinson, apparently known in the trade as "Jenks". His pleadings narrate the significance attached to the use of the description "Continental" and "Le Mans Replica".
[24]Eventually the pursuer had constructed a vehicle which he advertised for sale in "The Automobile", a specialist publication of the third defenders.
[25]Apart from pictures of the vehicle and of the process of reconstruction the advertisement read:
"1956 FRAZER NASH MARK II CONTINENTAL LE MANS REPLICA (FIA PAPERS)
Chassis exhibited 1956 Motor Show, Earls Court.
V8 BMW engine no: M29. Lightweight all aluminium chassis no 521/1.
One of only two built. Le Mans No: 421/200/300.
Only car with two chassis nos.
Chassis sold on Show Stand 1956.
Restored 1990-95 to Concours d'Elegance standard.
Le Mans body fitted with approval by John Aldington of AFN and Jenks of Frazer Nash Archives.
Large 50-page history. A must for racing and rallying."
[26]The magazine has a circulation in Scotland and the third defenders admit to 60 Scottish subscribers. There are no averments about readership.
The defamatory letter
[27]Following the publication of the advertisement the first defender wrote a letter to the editor of the Automobile magazine. It was published in the letters page of the magazine dated 8 January 1999. It was in the following terms:
"FROM THE HORSE'S MOUTH
I am surprised that your Advertisement Department should accept a full page advertisement for a rather dubiously named 'Frazer Nash Mark 2 Continental Le Mans Replica'.
The advertisement states that the so called restoration had my approval. I have never professed to be, nor wish to become, a guru of Frazer Nash provenance. Neither have I the gall to dictate what owners can or cannot do to their own property. Additionally, the advertisement suggests that my approval extends to include that of AFN Limited, the manufacturer of the chassis. I sold my interests in AFN and Porsche some three years before the rebodying took place.
It also claims the re-bodying had the blessing of Denis Jenkinson, of the Frazer Nash Archives. I started the Frazer Nash Archives with Jenks with the objective of collecting and recording documentary and photographic evidence of all Frazer Nash originals. If I recall correctly, Jenks's forthright comment on the refurbishment was 'One bastard body replaced with another'. But then he called my 1949 Motor Show cabriolet 'The Blue Blancmange'.
Contrary to what the advertisement claims, only one Continental model, a coupe utilising the Porsche 356 roof and centre section, was built - though it appeared at two Motor Shows, first in red, and then in a white finish - so the car in the advertisement cannot be a replica of that car. Neither did AFN rise to the dizzy heights of a 'light-weight all aluminium chassis ...'
I'm not over the moon with the Editorial Department, either. The caption writer to Michael Bowler's article described the car, other than oddball, as a Frazer Nash Le Mans Replica - with a capital R.
John Aldington,
Henley-on-Thames,
Oxfordshire."
[28]The letter page also contained a cartoon depicting a disconsolate Santa Claus and 3 possible reindeer looking at a vintage car, parts of which are strewn about all over the snow. The cartoon vehicle, I find, cannot be precisely identified as a drawing of the pursuer's Frazer Nash or of any Frazer Nash apart from the broken chains on the snow. The cartoon vehicle might well merit the description "old crock".
Pursuer's averments about defamation
[29]The pursuer's averments are somewhat discursive and lacking in precision. They were challenged by both counsel for the defenders as failing to give fair notice of what the defamatory statements were alleged to be and of their nature. There were, it was argued, no precise averments of the type desiderated in the authorities.
[30]The pursuer's counsel, while acknowledging and accepting criticism of the elegance of his case as pled, pointed to averments in condescendence 3 where, after incorporating the terms of the letter, he avers that its contents were defamatory of the pursuer and his property. In condescendence 4 the pursuer discusses the letter, the editorial and the cartoon and avers that the cumulative effect of the latter (headline, editorial and cartoon) was to impress upon the ordinary reader the fact that the advertiser (the pursuer) was attempting to pass off counterfeit goods as genuine and thereby defraud a potential purchaser. In condescendence 5, after reiterating the contention that the letter as a whole of itself was defamatory of him, the pursuer goes on to proffer the following detailed comment:
"In any event the expression 'FROM THE HORSE'S MOUTH' would read to the ordinary reader, without such knowledge, that the letter was written by an expert of the Mark. In the body of the letter the first named defender wrote that the car was 'rather dubiously named'. He stated that 'Contrary to what the advertisement claims, only one Continental model was built'. He also claimed never to have approved of the restoration. In an editorial, which followed the letter, the second named defender indicated that whilst he respected the writer's point of view the magazine had always disclaimed responsibility for the statements of its advertisers. He indicated that a copy of the letter would be passed to the owner for his comment, which would be published in the next edition. The foregoing disclaimer taken together with the cartoon and the headline would impress upon the mind of the ordinary reader the fact that the magazine has mistakenly accepted the advertisement for a 'dubious' car without criticism or comment. The statements made in said magazine were false and malicious. The effect of the letter and cartoon generally was to portray the pursuer as the owner and seller of a 'dubious' vehicle, which was mechanically unreliable. The effect of the letter generally, was to portray the pursuer as a fraudster attempting to sell counterfeit goods. The letter was calculated to, and had the effect, of lowering him in the estimation of right thinking members of society. It was capable of harming the character, honour and reputation of the pursuer in the eyes of reasonable people. Both the first named defender and second named defender were well aware of the history of the pursuer's vehicle or ought to have been through their specialist knowledge and contacts with the pursuer. They were well aware that the statements made in said magazine were false. In making the false statements that they did, the said defenders acted maliciously. They were well aware or ought to have been aware that the car was worthy of the description advertised. In addition the pursuer's property, namely the car, has been defamed. As a result of the publication of the matters complained of in a respectable enthusiasts' magazines it was obvious that any right-thinking person with a knowledge of cars of said Mark would conclude that the car for sale by the pursuer was a forgery and, in any event, unreliable mechanically."
[31]It was argued for the defenders that those averments could not pass the test of relevance as it had been expounded by Lord President Inglis in Sexton v Ritchie & Co 17 R 680 at page 685 which was referred to with approval by Lord Kinnear in James v Baird 1916 SC(HL) 158 at 165.
[32]Although, strictly, Lord Kinnear's speech on this point was obiter his summary reads:
"There can be no question at all, I think, that the law is as it was laid down by Lord President Inglis in the case which the present Lord President cites, namely, that in all actions for libel it is the duty of the pursuer to state on the record what he understands, and undertakes to show, is the true meaning of the writing, taken as a whole. If he proposes to put upon words that are apparently harmless a defamatory meaning by reading them with some special application, then it is his duty to allege the intrinsic circumstances which he says prove that defamatory meaning; but if there is no occasion for alleging extrinsic facts at all, it is still, as the Lord President says, his duty, although he is not necessarily required to state extrinsic facts, to state distinctly the libellous meaning which he attaches to the writing. It take it, therefore, that that is the duty of the pursuer, and it is not the duty of the Court. The duty of the Court in framing issues is perfectly clear and perfectly well understood. They are to extract, or to see that the parties extract, from the averments of the pursuer on the record an adequate and appropriate statement of the question of fact which he desires to put to the jury; and if the issue which he proposes seems to them improper, insufficient, or unauthorised by the averment of facts, they may alter it, but they cannot find their facts anywhere but in the pursuer's averments."
[33]The matter was further alluded to by Lord Shaw of Dunfermline in his speech in Russell v Stubbs Ltd 1913 SC(HL) 14 at page 24 where he says:
"It is for the pursuer of an action to state definitely the meaning which he alleges that the article or words complained of bear, and to put that meaning in issue; and thereafter the court determines whether there is any issueable matter and approves or disapproves or it may vary or adjust the issues proposed for the trial".
He continued at page 26 to refer to the:
"necessity of confining innuendoes upon, and inferences from, words which in themselves are not libellous within an area which admits of their being made without strain and as an expression of the reasonable, natural, or necessary meaning of the words employed".
The question for the court therefore is whether the pursuer has framed his pleadings with sufficient regard to what requires to be put before the court as an "issue of defamation" having regard to the authorities. There being no jury sought, dicta about pleadings from which "issues" can be drawn may not require to be strictly applied, since no issue for a jury trial has to be framed or approved by the Court, a more relaxed view of pleading can be taken.
Summary of arguments on relevancy
[34]The pursuer sought proof before answer on all matters including the questions of qualified privilege and slander of title. He was allowed in the course of the argument to produce the documents referred to by him in the second sentence of condescendence 4, which the Rules say should have been done prior to the debate. Production was opposed by the defenders but was allowed the in the interests of justice. The pursuer departed from his pleadings in condescendence 5 where he had averred that the defenders "ought to have been aware" of certain matters by confining those pleadings to actual knowledge. The remainder of his pleadings, fairly read, counsel argued, were sufficient to entitle the pursuer to a proof before answer.
[35]Both defenders attacked the sufficiency of the averments of the alleged defamation on the basis that all the elements of the defamation were not specific or plain. The pursuer was required but failed to aver the precise words used which gave rise to the defamation nor did he aver appropriately an innuendo. That, in itself, required an averment of the actual words and the circumstances in which they were used, together with an explanation of external facts and circumstances such as special knowledge, which would lead someone to derive a particular meaning from the words. These are rules which, it was said, there is no precedent for relaxation. The pleadings merely allege that the whole of the letter is defamatory. No distinction was pled between any part of it nor were there any relevant averments of how the pursuer was identified as a person defamed. There were no averments of special knowledge such as anyone knowing who the owner of the particular vehicle was.
[36]In addition, the defenders argued that since qualified privilege had been pled as well as slander of title there required to be sufficient averments of malice to counter qualified privilege and to prove slander of title.
Decision on Averments of Defamation
[37]I consider that the pursuer is entitled to ask the Court to have regard to the entire letter. As a matter of pleading, it is overexacting to suggest that the document in question which, on the authority of Charleston v News Group Newspaper Ltd 1995 2 AC 98 requires to be looked at as a whole needs to have detailed pleading of any particular item in it. To my view, it is plain wherein lies the defamation. That can be derived from a consideration of the entire document. The pursuer is entitled, in my view, to take the course he has done both in condescendence 4 and in condescendence 5 where he avers the effect of the letter. It is, says the pursuer, a defamatory document which calls in issue his honesty and integrity.
[38]The pursuer also invokes the headline and cartoon as adding to the defamation. He avers that the headline, the responsibility of the second defenders, repeats and gives an authenticity to the text which follows. The cartoon albeit not a drawing of the pursuer's vehicle, has been employed in such a way as to set the tone of the article. No doubt it is correct that the cartoon of itself is not a defamation since it is plain that the cartoon vehicle is not the same as the pursuer's. Had that cartoon been standing alone, there would have been no cause for complaint, but when it is allied to the content of the letter, it adds a colour for which the second defenders as publishers must be responsible.
[39]Another question is whether the pursuer is sufficiently identified as the subject of the defamation. He is not named but is referred to as the owner of the advertised vehicle. The vehicle has a registration number and it would take little detective work to ascertain who the owner was even if there had not been present in the pursuer's pleadings averments to indicate that the vehicle had been discussed with Jenks who for one would know the identity of the pursuer. So, plainly, did the first defender. There are averments of sufficient detail predating the advertisement of the participation of persons in discussion about the vehicle to make it clear that the pursuer was at least to some extent, known as the seller.
[40]There is also in addition the body of averment which makes it clear that those interested in such vehicles are a special and specialised group and whether or not the pursuer had been specifically named there are sufficient averments in the surrounding history to indicate that the pursuer was and would be known to be the person concerned.
[41]The defenders plead qualified privilege on the basis that it was a matter of legitimate public interest to publish a letter challenging the veracity of the description of the vehicle in the advertisement. The pursuer responds by saying that the defenders had no duty to publish defamatory material.
[42]This must I think be a matter for determination after enquiry. It is more difficult, in my view, to justify an attack upon a particular individual in a particular advertisement as possibly constituting a matter of public interest, then it would be, for example, to challenge, say, a safety feature in a mass produced vehicle. In any event, the letter goes beyond a legitimate query or comment about the status of the vehicle and makes positive assertions, from which malice can be discerned.
[43]With regard to the matter of averments of malice, Lord Young in McTernan v Bennett 1 F 333 said:
"There are many cases in which one man acts maliciously towards another, and that other has no idea what has made the man malicious. He may say with perfect truth and honesty, - 'I cannot conceive why he should have any malice against me, but his conduct shows that he has; he has made a false statement; I can prove that he knew it to be false, and I aver that; I will prove it out of his own mouth; and if he did that then he must have acted maliciously, although I cannot conceive what has stirred his malice. '"
In the present case the pursuer has averred a gratuitous attack upon himself and the vehicle he has proffered for sale. Following Lord Young's dictum he is entitled to enquiry about that letter and to invite the Court to hold that there was malice. The matter however does not end there in this case because, in their defences, both defenders in Answer 6 admit that the pursuer is already well known in the circles in which "The Automobile" circulates in Scotland. They aver some previous incident in which the pursuer is alleged to have sold a misdescribed vehicle with a consequent suspension of his membership of the Vintage Sports Car Club and state further that he was refused entry to the Fraser Nash section of that Club.
[43]In such circumstances, the pursuer's claim of an attack upon his honesty, does not appear far fetched.
[44]I accordingly hold that subject to the above noted restriction to his pleadings made by the pursuer he is entitled to proof before answer upon the matter of defamation, i.e.. the matter of the defamatory statement and to respond to the averment and plea of qualified privilege, and to seek to invoke malice on that response and as a basis of his claim of slander of title.
The Damage sustained by the Pursuer
[45]The final matter is whether the pursuer has relevantly averred his damage having regard to the necessity of giving to the defenders clear notice. The Scottish Court has jurisdiction because of the wrong done in Scotland. The question remains, however, whether the pursuer is entitled to an award of damages affecting the damage to his reputation, the slander to the title of his property in general or is confined in some way. There is no pleading confining the claim to any specific head of damage.
[46]The defenders sought assistance from the decision of the ECJ in Shevill &c v Press Alliance SA 1995 2 AC 18. There the House of Lords had made a reference to the ECJ seeking its guidance on the application to actions involving defamation of Article 2 of the Brussels Convention on jurisdiction and Schedule 1 of the Civil Jurisdiction and Judgements Act 1982, the ECJ held that the concept "the place where the harmful event occurred", in Article 5(3) of the Convention, meant that the victim of a libel by a newspaper article distributed in several contracting states could bring an action for damages against the publisher either before the Courts in a contracting state of the place where the publisher of a defamatory publication was established - which had jurisdiction to award damages for all the harm caused by the defamation - or before the Courts of each contracting state in which the publication was distributed and where the victim claimed to have suffered injury to his reputation - which had jurisdiction to rule solely in respect of the harm caused in the state of the court seized. Further, the criteria for assessing whether the event in question was harmful and the evidence required of the existence and extent of the harm to the victim of the defamation were not governed by the Convention but by the substantive law. In paragraph 30 of the judgement in Shevill it is ruled that the courts of each contracting state in which the defamatory publication was distributed and in which the victim claims to have suffered injury to his reputation have jurisdiction to rule on the injury caused in that state to the victim's reputation.
[47]Shevill, of course, was concerned with matters arising in two contracting states in the E.U. In the present case, the conflict is between Scotland and England in the U.K. and the question of the extent to which the pursuer can claim damages is governed by the Civil Jurisdiction and Judgements Act 1982, Part 3, Schedule 4. Schedule 4 provides that a person domiciled in a part of the United Kingdom may, in another part of the United Kingdom, be sued in matters relating to delict or quasi delict in the courts of the place where the harmful event occurred or may occur.
[48]It is provided in Section 20(5) of that Act that in determining any question as to the meaning or effect of any provision contained in Schedule 8, regard shall be had to any relevant principles laid down by the European Court and to any relevant decision of that Court.
[49]Accordingly, it appears to me that I am required to have regard to Shevill when construing Schedule 8, paragraph 2(c) and in particular to the phrase "the place where the harmful event occurred".
[50]Accordingly, the pursuer here sues for the damage caused to him by the publication in Scotland. That requires to be confined to and would exclude damage occurring elsewhere.
[51]In an action involving defamation and slander of title, however, disentangling the component parts of damage may be extremely difficult. In this case the defenders contend that the pursuer must aver in detail and prove what damage was actually sustained in Scotland so that it can be quantified.
[52]However, in a case of damage to reputation, it is doubted whether, before enquiry, other than the most general approach is required. One approach might be for an assessment to be made of the amount of solatium which would attach to the actual defamation and to disregard such proportion of that as may be determined not to have occurred within Scotland. There does not seem to be anything intrinsically wrong with such an approach which recognises the difficulty of sub-dividing in any precise fashion the damage to reputation.
[53]Similarly, there are even greater difficulties in assessing the damages which may be due for the effect of the slander of title. Evidence of and an assessment of the probabilities of a sale being concluded in Scotland of the vehicle in question would be required. In short, the pursuer would require to demonstrate his loss of a chance of sale having been affected by the Scottish defamation and this would only be the case if a sale were to take place either within Scotland or to a person affected by the defamatory article in Scotland. The question arises therefore to whether such a claim is too speculative to be allowed to go to probation. While on one view it could be so regarded, the courts have been able in many situations to assess the value of the loss of a chance or sales opportunity and there would not seem to be any reason in principle why they could not do so in the present circumstances.
Other Authorities cited and considered
[54]A large number of cases were cited to me in addition to those noted above. While several appeared to be examples and only illustration of the principles canvassed in my opinion, because the matters seemed to be considered important, I record those other cases below so that it can be seen what was placed before me.
Adams v Allen 3D 1058
Argyllshire Weavers Ltd v A Macaulay (Tweeds) Ltd 1965 S.L.T.21
Atkinson v Wood & McIntosh 2F 592
Berezowski v Michaels 2000 1 W.L.R.1004
Browne v D.C. Thomson Ltd 1912 S.C.359
Cairns v Downie, 2004 Glasgow Sh.Ct. A3864/03
Chadha v Dow Jones & Co Inc 1999 E.M.C.R.375
Connelly v RTZ Corporation Plc [1998] A.C.854
Cumming v Scottish Daily Record Ltd 1995 E.M.L.R.538
Don King v Lennox Lewis 2004 E.W.H.G.168
Elder v Gillespie 1923 S.L.T.32
Grappelli v Derek Black Ltd 1981 1 W.L.R.822
Harrods Ltd v Dow Jones & Co Inc 2000 E.W.H.G.1162
Hayford v Forrester Paton 1927 S.C.
Kroch v Rossall 1937 1 A.E.R.725
Lennon v Scottish Daily Record 2001 E.W.H.C.359
Longworth v Hope 3M 1049
Martin v McLean 6D 681
Reynolds v Times Newspaper Ltd 2001 2 A.C.127
Schapira v Ahronson &c 1999 E.M.C.R.375
Steedman v BBC [2001] E.W.C.A.1534
Suzor v McLachlan 1914 S.C.306
UVG Ambulances Ltd v Auto Conversions Ltd O.H. 12 May 2000 (A78/2000)
Conclusion
[55]On the whole matter, I shall repel each defenders first plea-in-law and quoad ultra allow a proof before answer.