In a comment on a recent post on the Scottish government consultation on “libelling the dead”, Scots law blogger Jonathan Mitchell QC drew attention to the fact that Scots libel law is effectively identical to that in England.
“something the English haven’t yet picked up on in the current debate as to libel law reform is that our law is effectively identical at present albeit with a very different costs regime, so if the UK Parliament reforms English libel law alone we can expect to see a straightforward transfer of litigation to Edinburgh“
This suggestion inspired us to look into the state of defamation law in Scotland. Overall, there does not appear to be much activity in this area in the Scottish courts.
There was a report in the “Daily Record” – apparently not available on the internet – of a decision of Lord Doherty in the Court of Session on 18 November 2010 in a familiar type of case. The claim is by Polish international goalkeeper Arturo Boruc against the News of the World over claims he sent X-rated texts to a mystery woman. The article alleged that Mr Boruc had “bombarded” a woman known only as “Gail” with sex text messages while his fiancee Sara was pregnant. He sought an order that the newspaper group should reveal the woman’s identity so she could be traced. However, the newspaper made it clear that its defence was veritas – truth – and the case was at a very early stage. The newspaper bore the onus of proof and indicated that it wished to protect their source. The application was dismissed.
No judgment is available in this case. In fact, there appear to have been only been three judgments in defamation cases in Scotland this year. First, there is the Sheriff’s Court case of Sinclair or Fraser v Fraser (16 July 2010) in which Sheriff Margaret Neilson awarded damages of £5,000 in respect of oral defamatory statements by the defender about the pursuer, who had been a co-worker with Leonard Cheshire Disability. Defences of “veritas” and qualified privilege were unsuccessful.
Second, there is the case of Curran v Scottish Daily Record ( ScotCS CSHOH 44) in which temporary judge Morag Wise QC dismissed an action arising out of an interview given by Mr Tommy Sheridan MSP in which he criticised the pursuer, another MSP and other individuals in the Scottish Socialist Party, referring to them as “political scabs”. The judge held that the words were not defamatory
“I have taken into account also the greater latitude permitted in relation to criticism of the pursuer given the public office that she held. In my view, it is important to distinguish between the disloyal conduct complained of in the article and any imputation of dishonesty. The criticism made of the pursuer is that she was part of a group within the party who were trying to politically undermine Mr Sheridan. Whether or not she was right to do so is not the issue. What matters is that the rift within the political party in question was a very public matter in which the pursuer and others could legitimately be exposed to criticism”. 
In addition, the judge found that the statements by Mr Sheridan were privileged as “reply to attack”. This is an interesting judgment which repays reading in full. The Daily Record, unsurprisingly, reported the decision as a “major victory for press freedom”
Third, there is a judgment of the “Inner House” (that is, the Court of Appeal Civil Division) dismissing an appeal in the case of Ewing v Times Newspapers ( ScotCS CSIH 67) against the dismissal of a defamation action. As the Court pointed out Mr Ewing
“has a long history of litigations in the English courts. On 21 December 1989 the High Court, taking into account 37 actions raised by him, declared him to be a vexatious litigant and made him subject to a civil proceedings order“
On 19 June 2008 the Mr Ewing applied to the High Court for leave to institute proceedings (Ewing v News International Ltd and Ors  EWHC 1390 (QB)). On 22 July 2008 Coulson J made a finding that the pursuer was a serial litigator who was obsessed with civil litigation and whose stated policy was not to pay the costs of those who successfully defeated his claims. Mr Ewing then went to Scotland and Northern Ireland, downloaded the article and commenced proceedings in both jurisdictions. Both actions were dismissed.
The Lord Justice Clerk concluded his judgment by saying
“The present action arises because the pursuer came to Scotland to acquire a cause of action. He has no connection with Scotland and has no apparent reputation here to defend. If he should have suffered hurt feelings when he read the article here, his hurt is self-inflicted. Even if there were to be a vestige of merit in the claim, this action would be disproportionate to its value …
The pursuer has inflicted needless expense on the defender. He has imposed a needless burden on the overstretched resources of this court. It is time to bring down the curtain on this action before further time and money are wasted” [17-18].
These appear to be the only defamation cases dealt with by the courts in Scotland over the past twelve months. It may well be that we have missed some that have not been reported and we hope that our readers in Scotland can drawn them to our attention.
Even more surprisingly, there do not appear to be any newspaper reports of libel cases – whether of settlements being reached or cases being withdrawn. The only one mentioned in 2010 on the useful allmediascotland.com site is the Curran case we have already discussed. It may be that we have missed some report and, again, we would be grateful to readers if they can draw our attention to any.
Overall, the level of defamation claim in Scotland appears to be low – perhaps this might be increased, as Mr Mitchell suggests, if English libel law becomes more “defendant friendly” and Scots law remains unreformed.