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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> McKellar v. MacKinnon [2004] ScotCS 28 (06 February 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/28.html Cite as: [2004] ScotCS 28 |
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Kirkwood Lord Osborne Lord Abernethy
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XA35/03 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL From the Sheriffdom of South Strathclyde, Dumfries and Galloway by H. AIDEN McKELLAR Pursuer and Respondent; against MICHAEL MacKINNON First Defender and Appellant; _______ |
Act: Skinner; Brodies (Pursuer and Respondent)
Alt: Mrs. Janys M. Scott; Drummond Miller, W.S. (First Defender and Appellant)
27 January 2004
[1] This is an appeal by the first defender against an award of £5,000 in favour of the pursuer in name of damages in respect of defamatory statements which were made by the two defenders in November 1996. The second defender was not represented at the hearing of the appeal. [2] The sheriff heard the proof in June 2002. He found that the pursuer and respondent had for many years been the principal teacher of music at St. Joseph's College, Dumfries and was so employed in November 1996. The first and second defenders were then 15 years of age and were fourth-year pupils at the school studying both music and drama amongst other subjects. On 28 November 1996 the pursuer was directing a choir practice in the main music room, which adjoined the drama studio. The two defenders had received permission to use the drama studio at the same time in order to work on a drama presentation. The member of staff who gave them that permission had warned them to "keep the noise down" in view of the fact that the choir practice was going on. When the defenders had finished work on their drama presentation, they left the drama studio but, instead of leaving the music department, they went into a music practice room which was situated on the other side of the corridor from the main music room and contained a piano. Both defenders sang a song very loudly, the second defender accompanying their singing on the piano. They sang a parody version of a song which was then in vogue, the chorus of "because your gorgeous" having been replaced by the words "because you're a bastard". The noise being made by the defenders was heard by the pursuer and members of the choir, and the pursuer stopped the choir practice and went to the room occupied by the defenders. He told them to get out of the music department and he also told them that he would be telling their parents what had happened. The sheriff found that the pursuer did not at any time have any physical contact with either of the defenders. When the defenders left the room they were laughing, but as the first defender was going downstairs he clutched his right side. The defenders then complained to the Depute Rector of the school that the pursuer had assaulted the first defender by striking him on the right-hand side of his body. Later that evening the account of the alleged assault was repeated to the Rector, and the pursuer was instructed to leave the school premises forthwith pending investigation of the complaint. On 2 December 1996 he was suspended from his employment at the school. The senior management of the school carried out investigations into the incident, and on 4 December 1996 the defenders each gave a formal statement to the Rector stating that the pursuer had assaulted the first defender by punching him in the stomach. Disciplinary proceedings then followed, and on 16 December 1996 the pursuer's employers held a disciplinary hearing into the defenders' allegation at which the two defenders repeated their account of the pursuer having assaulted the first defender. On 18 December 1996 the chairperson of the disciplinary hearing recommended the dismissal of the pursuer. In February and March 1997 the Education Committee of Dumfries and Galloway Council held a dismissal hearing in the course of which the defenders again repeated the allegation that the first defender had been assaulted by the pursuer. In the event, the Committee did not uphold the recommendation for dismissal and decided to reinstate the pursuer. However, the defenders' parents were not happy with this outcome, and the defenders' allegation was raised again at a hearing before the Disciplinary Committee of the General Teaching Council on 11 December 1998. The two defenders gave evidence on oath at that hearing, but the pursuer was found not guilty of infamous conduct in a professional aspect. The pursuer had been unable to found on the initial allegations of assault made by the defenders on 28 November 1996 as they were time-barred, but he claimed that he had been defamed by the defenders when they had repeated the allegations on 4 and 16 December 1996 and in the course of the hearing in February and March 1997. [3] The sheriff found that the allegation that the pursuer had struck the first defender was false. The proof was conducted on the agreed basis that the circumstances in which the allegation was made gave rise to qualified privilege, and one of the principal issues was whether there had been proof of malice. Having found in favour of the pursuer, the sheriff awarded damages of £5,000. An appeal to the sheriff principal was refused by interlocutor dated 10 February 2003. [4] When the hearing before us began, counsel for the first defender stated that she wished to contend that this was a case where absolute privilege applied. That was the only matter she wished to argue, as she was not in a position to challenge the sheriff's findings on the basis that qualified privilege applied. Counsel for the pursuer objected to the issue of absolute privilege being raised at this late stage. Before we deal with the submissions which were made to us, it will be helpful to give a brief narrative of the earlier procedure. [5] Once the action was raised, the first defender took the plea that the statements complained of by the pursuer were covered by absolute privilege. Following a debate, that contention was rejected by the sheriff by interlocutor dated 22 May 2000 and, although an appeal was taken to the sheriff principal, the appeal did not relate to the sheriff's rejection of the plea of absolute privilege. Indeed, in the course of the hearing before the sheriff principal, the solicitor for the first defender stated that it had been accepted that any statements made by the defenders were subject to qualified privilege, the appeal being concerned with the sufficiency of the pursuer's averments of malice. The sheriff principal took the view that the pursuer had not given fair notice of the basis upon which the court was being invited to hold that each of the defenders had been actuated by malice, and that the defenders were entitled to have the action dismissed. However, while the appeal was at avizandum, the pursuer lodged a minute of amendment and was subsequently allowed to amend, and the case was then remitted to the sheriff to proceed as accords. The sheriff allowed a proof before answer which took place in June 2002. We were informed by counsel for the pursuer that shortly before the start of the proof it was agreed that the proof would proceed on the basis that the circumstances in which the defenders had repeated the allegation of assault had attracted qualified privilege, and the proof had, in fact, proceeded on that basis. Counsel for the first defender did not dispute that that had been the position, and it was common ground that towards the end of the proof the parties had lodged a joint minute which stated that they had agreed inter alia as follows:"Qualified privilege applies to the circumstances in which the First Defender and Second Defender made the statements complained of by the Pursuer".
The decision of the sheriff after proof was appealed to the sheriff principal but the appeal did not raise the issue of absolute privilege.
Before us, counsel for the first defender and appellant, who told us that she was appearing pro bono, intimated that she wished to raise the issue of absolute privilege. She intended to argue that the first defender was immune from proceedings for defamation on the ground of absolute privilege which applied to all the statements which were complained of. She submitted that, while the joint minute had contained an agreement that only qualified privilege applied, that agreement had been unnecessary and ineffective because the first defender's plea of absolute privilege had previously been repelled. The joint minute had not affected the leading of evidence and the pursuer would not suffer any prejudice. While the first defender had not appealed against the sheriff's interlocutor of 22 May 2000 repelling his plea of absolute privilege, the present appeal had the effect of opening up all previous interlocutors. The fact of the matter was that the action should never have been allowed to go to proof at all. The case raised significant issues of public policy, and it would be in the interests of justice to hear the submissions on absolute privilege. The appellant had been 15 years of age when the allegation of assault was made, and 18 years old when the action was raised. He had just left school and had no resources. He was not eligible for legal aid, and could not afford to employ counsel. The first defender had been aware that, if qualified privilege applied, the pursuer required to prove malice, and he had believed that the pursuer would be unable to do so. The appellant and his solicitor had been confused due to the way the issue of privilege had been dealt with by the court. In the course of her submissions, counsel referred to Connelly v. Simpson 1994 SLT 1096 and McCue v. Scottish Daily Record and Sunday Mail Limited 1998 S.C. 811.
[6] Counsel for the pursuer and respondent submitted that the first defender should not be permitted to re-introduce the issue of absolute privilege at this late stage, particularly when his plea relating to absolute privilege had been repelled in May 2000. That decision by the sheriff had not been appealed and the proof had, by agreement, proceeded on the basis that only qualified privilege applied. To allow absolute privilege to be introduced at this stage would be grossly unfair and prejudicial to the pursuer. The proof had been conducted on the basis that qualified privilege applied, and the real issue at the proof was whether the alleged assault had, in fact, taken place. If, as the sheriff held, it had not occurred, the requisite malice could readily be inferred from the fact that the defenders must have known that there had been no assault. After the pursuer had succeeded at the proof, the first defender had appealed to the sheriff principal, but in that appeal the issue of absolute privilege had not been raised. Counsel submitted that, if absolute privilege had been an issue at the proof, the pursuer's case would have been conducted in a different way. In particular, it would have been open to the pursuer to lead evidence as to the circumstances in which the statements had been made with a view to establishing that absolute privilege did not apply (c.f. Trapp v. Mackie 1979 S.C. (H.L.) 38 per Lord Diplock at pp. 49-50). The first defender could not now go back on the formal agreement contained in the joint minute. That agreement had related to the factual circumstances and the law, and had not been equivalent to a simple concession on a point of law. Reference was made to John Thorburn & Sons v. Border Harvesters Limited 1992 S.L.T. 549.Decision
[7] Having considered the submissions which were made to us we are satisfied that the first defender should not be permitted to raise the issue of absolute privilege again at this late stage. While he initially took a plea of absolute privilege, that plea was repelled by the sheriff in May 2000, and no appeal was taken on that matter. The question of absolute privilege did not again feature in the case until counsel for the first defender and appellant sought to re-introduce it at the hearing of the appeal. In the meantime the proof had been held and the parties had entered into a formal joint minute agreeing that qualified privilege applied to the circumstances in which the statements made by the defenders had been made. In our opinion, that agreement, which related to mixed fact and law, cannot be equated to a concession made by one party on a pure matter of law. It is clear that, in the conduct of the proof, parties proceeded on the basis that it was qualified privilege which applied and that the existence of malice was one of the issues. However, if the pursuer had known that it was to be alleged that the statements had attracted absolute privilege, it would have been open to him to consider leading evidence with a view to showing that the circumstances in which the statements had been made were such that the defenders were not protected by absolute privilege. In the particular circumstances of this case we are satisfied that to allow the first defender to re-introduce the issue of absolute privilege at the hearing of the appeal would be unjust and prejudicial to the pursuer. In our opinion, the conduct of the first defender's case has been such that we should not interfere with the interlocutor of the sheriff dated 22 May 2000 which repelled the plea of absolute privilege. [8] As counsel for the first defender stated that she did not intend to argue any of the other grounds of appeal, we have refused the appeal and adhered to the interlocutor of the sheriff principal dated 10 February 2003.