The recent decision of the Court of Session in Scotland in RAH v MH ( CSOH 126) is unusual for two reasons. First, it follows a proof (trial) in a defamation action; a rare beast in the Scottish courts. Second, parties’ names in the judgment are anonymised.
The pursuer, RAH, is a solicitor in the Scottish Borders. In 2004, he was appointed as an independent court reporter in a family case involving children’s residence. He received a letter from a solicitor acting for one of the parties in that case, explaining that there had been previous allegations regarding the children’s grandfather, MH, resulting in “some kind of dictat” that one of the children should not be left alone in his company [paragraph 10]. RAH investigated and concluded in his report that MH “was aware that there had been some complaints about him in the past… He was seen by Social Workers but told not to put himself at risk of further allegations merely as a precaution…” [paragraph 25].
It transpired that MH had not been seen by social workers. RAH maintained this was an error as information obtained by him made reference to the child’s parents, not grandparents, meeting with the social work department. Conversely, MH felt this statement constituted a malicious lie. He also took the view that reference in RAH’s report to there being no “current concerns” was misleading as it implied there had been concerns in the past.
In April 2011, MH distributed around 90 to 100 handbills around the Borders where RAH both lived and worked. The handbills expressly referred to RAH as a “liar”, stating he knowingly supplied false and malicious information to the court.
RAH raised an action for interdict against MH to prevent him, or anyone on his behalf, from defaming him and, in particular, from distributing material such as the handbill. He also sought payment of £150,000 in damages.
Following four days of evidence and legal submissions the judge, Lord Matthews, found in RAH’s favour, granting the interdict and awarding RAH £15,000 as solatium.
Judgment – Damages
Given how unusual defamation cases are in Scotland, it is difficult for advisors to predict the likely level of an award of damages. Counsel for RAH based his assessment on the cases of Baigent v British Broadcasting Corporation  SC 282 (“Baigent”) and Munro v Brown  SLT 947 (“Munro”).
In Baigent, the owners of a nursing home (husband, wife and three children) sought damages from the BBC following a television documentary on alleged shortcomings in the nursing home. At first instance, inter alia, damages of £60,000 were awarded to the wife, £50,000 to the husband and £20,000 to each of the children, on the basis the BBC had broadcast “wild and exaggerated statements from disaffected individuals” without any “reasonable proper checking”. On appeal, the Inner House of the Court of Session refused to interfere with these awards, commenting that assessment of damages in a defamation case is of a “unique nature”. The court stated that every case of defamation “is unique in respect of both the content of the slander and its effect upon the victims and it therefore follows… that even comparison with other decided cases in that area is of limited value” [page 289] .
In Munro, a member of the team representing Scotland at the World Ladies Curling Championships raised an action for damages following a press conference in which the national coach stated she had refused to play in one of the games: a statement which the pursuer alleged was untrue. The pursuer was successful and was awarded £20,000 (with three quarters attributable to the past).
Of course, in both of these examples the defamatory statement was circulated nationwide (and even further afield in Munro, with media outlets in other countries reporting the story). In the present case, the handbills were circulated around one particular area, albeit the area in which RAH lived and worked. Indeed, RAH’s counsel stated that MH had acted with “cold, calculated, deliberate and spiteful venom” and that his actions involved “twisting the knife” [paragraph 89]. This was said with reference to the fact MH had deliberately gone to the hamlet in which RAH lived. The attack on RAH was calculated to damage his reputation within the small community.
The cases of Baigent and Munro were also cited by RAH’s counsel as authority for the proposition that proceeding with the defence of veritas and insisting in it until judgment “could result in additional distress and in continuance of the injury to an individual’s reputation” [paragraph 89]. It was suggested this was the case here as MH insisted the statements in his handbill were true throughout the proof.
Lord Matthews accepted that the statements were untrue and that the circulation of the handbills around RAH’s community had a negative effect on him. He was concerned his reputation would be damaged. He lacked motivation and began missing days at work. His marriage was affected. No damages were sought in relation to any business losses, despite the fact the handbills may well have damaged RAH’s business.
Lord Matthews did not consider that the damages should be as great as they were in Munro and Baigent. Interest was ordered to run on two thirds of the £15,000 award from the date on which the material was first published.
Perhaps the most unusual point about this judgment is the fact the judge does not provide parties’ names and simply refers to them by their initials. No explanation for this is given in the judgment. The judge may have taken the view that RAH and his wife should not be exposed to any further attention. On the other hand, pursuers in defamation cases often want their names to be “cleared” and anonymising the judgment arguably restricts RAH’s right in this regard.
The reason for the anonymous judgment may lie elsewhere, though. As set out above, the factual basis of the case, which resulted in the defender distributing the defamatory material, was a court report into a child’s welfare. Given the subject matter involved allegations of abuse by the child’s grandfather which ultimately came to nothing, Lord Matthews was presumably at pains to ensure the child’s privacy is maintained.
However, it is worth noting that Lord Matthews did not make any formal order restricting the reporting of his decision or of parties’ names. The community within which both RAH and MH reside is very small. Even if local people are unable to identify MH, it would not be difficult to identify RAH from the information contained in the judgment. Indeed, at least one Scottish newspaper has named RAH and printed his photograph.
While this judgment is unusual for the reasons discussed above, it is not particularly ground-breaking. It is fairly settled law in Scotland that the level of damages for defamation can differ significantly depending on the facts of each individual case. The level of damages here reflects what Lord Matthews viewed as the harm done to RAH.
While the parties are not clearly identifiable from the judgment, there are no reporting restrictions. It can only be assumed that the judge wished to protect the child’s anonymity. This is fairly standard practice in cases involving children.
Finally, it should be noted that MH is appealing Lord Matthews’ decision.