SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Menzies Lord McGhie	[2013] CSIH 37 A558/12 NOTE OF REASONS issued by LORD CARLOWAY, the LORD JUSTICE CLERK in the application by ALAN MASSIE Pursuer and Respondent; against CALLUM MCCAIG & OTHERS Defenders and Reclaimers; for Leave to appeal to the United Kingdom Supreme Court _______________

Act: Summers QC, Galbraith; Lefevre Litigation

Alt: RW Dunlop QC, Hamilton; Francis Gill & Co

21 March 2013

[1] The pursuer seeks leave to appeal to the United Kingdom Supreme Court against the interlocutor dated 1 March 2013 allowing the defenders' reclaiming motion and recalling an interim interdict granted by the Lord Ordinary on 19 December 2012 ([2013] CSIH 14).

[2] The pursuer's primary position was that leave to appeal was not required. It was argued that the interlocutor recalling the interim order was, in substance, a final interlocutor (Beattie v Glasgow Corporation 1917 SC (HL) 22, Earl Loreburn at 24). The applicant could not now succeed in his action because of this Court's articulation of the defence of "fair comment" (Opinion, paras 30 - 33). If leave were required, it should be granted on the basis that the proposed appeal raised an important issue of legal principle. It was desirable to clarify whether the Scots law of defamation withheld the defence where the comment was made maliciously or without any belief in its truth. This issue had not been addressed directly in Archer v Ritchie & Co (1891) 18 R 719, which had been relied upon by the court, although not cited in argument.

[3] The respondents argued that leave to appeal was required. The court had not finally determined any aspect of the case or question of principle (Houston v BBC 1995 SC 433, LP (Hope), delivering the Opinion of the Court, at 435). The court had issued an interlocutory judgment which could not sensibly be viewed as a "judgment on the whole merits of the cause" (Court of Session Act 1988 section 40(1); Beggs v Scottish Ministers 2006 SC 657). The United Kingdom Supreme Court ought not to be asked to determine questions of principle on the basis of undeveloped pleadings at an interim stage of proceedings, particularly where the decision involved the exercise of a discretion relative to the balance of convenience. In any event, any prejudice to the applicant would be offset by his right to damages if his action was ultimately successful. In the meantime, the respondents did not intend to reinstate the website article complained of. It was not necessary for the interim interdict to be revived pending an appeal (Mulhern v Scottish Police Services Authority 2009 SLT 353).

[4] Section 40(1) of the Court of Session Act 1988 states, insofar as material:

"40. Appealable interlocutors

(1) ...it shall be competent to appeal from the Inner House to the Supreme Court -

(a) without the leave of the Inner House, against a judgment on the whole merits of the cause, or against an interlocutory judgment where there is a difference of opinion among the judges or where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action;

(b) with the leave of the Inner House, against any interlocutory judgment other than one falling within paragraph (a) above."

[5] The interlocutor recalling the interim interdict granted by the Lord Ordinary was an interlocutory judgment both in form and in substance (Houston v BBC 1995 SC 433, LP (Hope) at 434; Ross v Ross 1927 SC (HL) 4, Viscount Dunedin (at 6) endorsing the approach in Beattie v Glasgow Corporation 1917 SC (HL) 22, Earl Loreburn at 24). The pursuer was unable to point to any case in which a unanimous decision on interim interdict had been appealed to the House of Lords or the United Kingdom Supreme Court without leave. This is not surprising as it is clear that leave is required in such circumstances. The observations of the Lord President (Clyde) in Adelphi Hotel (Glasgow) v Walker 1960 SC 182 (at 184) appear apposite, viz:

"...is our interlocutor granting interim interdict an interlocutor in respect of which leave to appeal is required? In our opinion, it clearly is. If this were a case where the facts were agreed, and where the decision on the question of interim interdict necessarily determined the whole issue in the action, then leave would not be required - see Ellice v Invergarry and Fort Augustus Railway Co., [1913 SC 849] per Lord President Dunedin at p 856. But this is far from the situation in the present case... As Lord Dunedin said in Ross v Ross [(supra)] (at p 6): 'The right of appeal (to the House of Lords without leave) remains where the judgment, though interlocutory in form, is final in substance. The test of finality in substance is to see whether the case would have been equally decided in substance whether the interlocutor under discussion had been pronounced as it was or had been pronounced to the opposite effect.' Applying this test, leave is here clearly required".

It could hardly have been argued that, had the court refused the reclaiming motion, the decision would have been a final one.

[6] The ultimate success or failure of the pursuer's action will be determined at a later stage in the proceedings, notably after the facts have been agreed or established. At this interim stage, however, the controversy between the parties, that is to say whether or not the defenders have defamed the pursuer in an actionable manner, has not been determined and the whole merits of the cause cannot be said to have been disposed of (Buchanan v Alba Diagnostics (No 2) 2004 SC (HL) 9, Lord Hope at para 39). As matters stand, the court has held only (in favour of the pursuer) that the innuendo complained of is "likely" to be made out after proof (Opinion, para 26). The court was unable, on the undeveloped pleadings, to reach a concluded view on whether or not the statement complained of would be covered by qualified privilege (Opinion, para 28). The court considered that the statement and article complained of constituted "fair comment", only on the assumptions that the innuendo was made out and that the circumstances were not privileged (Opinion, para 33). On that basis, the court held that, applying the test under section 12(3) of the Human Rights Act 1998 the pursuer would not be likely to succeed overall after proof (Opinion, para 35). The pursuer's case has not been the subject of a judgment on the whole merits. Leave is therefore required to appeal to the Supreme Court.

[7] Leave to appeal is refused. First, it is not normally appropriate to grant leave to appeal against an interim order where an appeal may lie against the final determination of the cause, at which point any unresolved points of principle might be more properly addressed (Ferguson v Maclennan Salmon Co 1990 SLT 658, LJC (Ross), delivering the Opinion of the Court at 663). Secondly, appeals to the United Kingdom Supreme Court are not normally appropriate unless they raise an issue of law of general or public importance (G Hamilton (Tullochgribban Mains) v Highland Council 2012 SLT 1148, Lord Walker at para 29). The court does not consider that such an issue arises here. Nothing in its opinion on the nature of fair comment in Scots law is in conflict with the decision in Joseph v Spiller [2011] 1 AC 852 or with the additional authorities cited by the pursuer at the hearing on leave to appeal (Wheatley v Anderson 1927 SC 133; Langlands v John Leng & Co 1916 SC (HL) 102). Although the court was not persuaded that a subjective "honest belief" in the comment was a requirement of the defence, that was a relatively minor part of the reasoning which led to the court's ultimate decision to recall the interim order. That reasoning focussed on the terms of section 12(3) of the 1998 Act and on the balance of convenience pending final disposal. Both aspects highlight the interlocutory nature of the decision made.