Dickson Minto W.S. & Ors v. Bonnier Media & Anor [2002] ScotCS 137 (15th May, 2002)
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OUTER HOUSE, COURT OF SESSION
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P546/02
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OPINION OF LORD CARLOWAY
in the Petition of
DICKSON MINTO W.S., and OTHERS
Petitioners;
against
BONNIER MEDIA LIMITED and ANOTHER
Respondents:
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Petitioners: A. Jones (Solicitor-Advocate), Ketchen & Stevens WS
Respondents: R.W. Dunlop; Haig-Scott & Co WS
11 May 2002
1. Facts
- The petitioners are a firm of solicitors and its partners, including Mr. Alastair Dickson. The respondents are respectively the publishers and printers of the newspaper "Business am". Despite the considerable breadth of the prayer of the petition, ultimately, under some prompting from the Court, the petitioners sought to restrict their motion for interim interdict to one prohibiting the first respondents from:
"publishing any article showing or tending to show that the petitioners and, in particular, Alastair Dickson had acted in a conflict of interest situation in respect of the business dealings between Belinda Robertson Limited, Plye Design Limited and/or Elvina Investments Limited".
The information contained in the statements of fact in the petition is reasonably described as sparse. However, although it is not set forth in averment, I was, upon enquiry, informed that the background to the application is that Mr. Dickson is involved in a relationship with one Belinda Robertson. Ms. Robertson has a substantial interest in Plye Design Ltd. and its subsidiary Belinda Robertson Ltd. Elvina Investments Ltd. are, or at least were, clients of the petitioners in respect that the petitioners have advised Elvina in the past on certain matters. Elvina have now invested in Plye Design. The petitioners maintain that they did not advise Elvina in connection with this investment. Rather, a letter from Elvina is produced to the effect that they did not regard the petitioners as acting for them in the investment and they had employed their own lawyers in the Channel Islands, at the petitioners' request, to represent their interests. This letter is slightly ambiguous in that it does not directly address the question of whether any advice had been tendered to them by the petitioners regarding the investment but perhaps that is explained by the short time available to produce precise information.
- What is contained in the petition is a narrative that on Friday, 10 May 2002, the Law Society of Scotland contacted the petitioners and told them that, earlier that day, a journalist from "Business am" had requested information regarding allegations of conflict of interest. On contacting the journalist, the petitioners were told that it was the first respondents' intention to publish, on Monday, 13 May, an article concerning the matter about which enquiries of the Law Society had been made. However, the journalist declined to provide details of what would be contained in the article. It was on this basis then that an interim interdict was sought since, maintained the petitioners, any allegation of conflict of interest would be defamatory. Agents for the petitioners made the petitioners' position clear about this in a letter faxed to the journalist, the terms of which were incorporated into the pleadings.
- The first respondents' agents had some difficulty in obtaining information on the article as, during the period between being advised of the application in response to their caveat (Friday evening) and the case calling before me at 10 a.m. on Saturday 11 May, "Business am" had been closed. However, with such intelligence as had been gleaned, they were able to state that they understood that it was the first respondents' intention to publish an article to the effect that the petitioners had advised a client (presumably Envira) to invest in Plye Design but did not seek to make any accusation, at least directly, of conflict of interest. Any facts published, it was asserted, would be truthful. "Business am" were not rumour-mongers but a responsible publication of matters in which the Scottish business community might be interested.
2. Submissions
- The petitioners submitted that they had made out a prima facie case and that, having regard to the potential damage to the petitioners' reputation, the balance of convenience favoured the grant of the interim order sought. Reference was made to the celebrated cases of Waddell v British Broadcasting Corporation 1973 SLT 246 (Lord Justice-Clerk (Wheatley) at 251, 252); Fairbairn v Scottish National Party 1980 SLT 149 (Lord Ross at 152) and to Baigent v McCulloch 1998 SLT 780, T.G. Coutts QC at 784). On the other hand, the first respondents pointed out that the Outer House decision in Baigent was out of step with the House of Lords' view, albeit on English law, as expressed in Reynolds v Times Newspapers [2001] 2 AC 127. Furthermore, matters had moved on from Waddell and Fairbairn by the bringing into force of section 12 of the Human Rights Act 1998 (c. 42). In terms of section 12, the Court now required to be satisfied that the petitioner was likely to establish, after proof if necessary, that the publication would be interdicted. Reference was made to the English Court of Appeal case of A v B & C [2002] EWCA Civ 337. In relation to the matters set out in sub-section 12(4), Mr. Dickson's relationship with Ms. Robertson was public knowledge and the dealings of the petitioners were matters of public interest. It was accepted that one of the petitioners' clients had invested in one of Ms. Robertson's companies. In these circumstances, the petitioners had not established that they would be likely to succeed. If the article turned out to be defamatory then the petitioners could extract an apology through the offices of the Press Complaints Commission or sue for damages.
3. Decision
- Section 12 of the Human Rights Act 1998 provides :
"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.
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(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to...journalistic material...to
(a) the extent to which -
(i) the material has, or is about to, become available to the public; or
(ii) it is, or would be, in the public interest for the material to be published;
(b) any relevant privacy code."
In terms of this section, before I could grant interim interdict, I would have to be satisfied not only that the petitioners had a prima facie case (in the sense previously understood in cases of this nature) and the balance of convenience rested in their favour but also that upon a final determination of the case, after a proof if necessary, the petitioners would be likely (my emphasis) to succeed. It is difficult to assert that the petitioners will succeed in circumstances in which it is not known what exactly is to be published. The petitioners' fears stem from what has been said to them in relation to an enquiry of the Law Society relative to a conflict of interest and from the journalist disclosing only limited information that the article to be published will cover the subject matter of that enquiry. In response to that, the petitioners have set out, through their agents, what their position on the facts is and this ought now to be clear to the first respondents.
- Looking at the factual background, I am not satisfied that it has been established that the petitioners are likely to succeed in an application for permanent interdict against such article as is to be published, even if it did allege or hint at conflict of interest. The petitioners deny any conflict of interest. However, it is accepted that Mr. Dickson is in a relationship with Ms. Robertson and clients of the petitioners did invest in one of her companies. It is very difficult, upon an ex parte application, to conclude that even a hypothetical article involving an allegation or innuendo of conflict of interest would ultimately, after appropriate enquiry, be prohibited as defamatory in the face of defences of, for example, veritas and/or fair comment. Although I am not at all persuaded by any argument of the first respondents based upon the effectiveness of PCC complaints or to the effect that the petitioners' business dealings are matters which it is in the public interest to know about, it is perhaps not without significance that the petitioners are solicitors and their performance in accordance with ethical standards is a matter of public interest. Furthermore, although there may be problems with quantification, an alternative remedy of damages does exist. In all the circumstances, having regard to the statutory test, I am unable to conclude that a prima facie case, as that should perhaps now be understood in light of section 12, has been made out.
- In looking at the balance of convenience, weighing the important private interest of the petitioners in protecting their professional reputations with the right of freedom of expression and its importance in maintaining a free press, I consider that the balance of convenience rests in favour of "Business am" being allowed to publish whatever article they consider appropriate. In that regard, no doubt they will bear in mind what the petitioners have said is their position and the potentially substantial financial consequences should the article transpire to be defamatory.
- For these reasons I will refuse the application for interim interdict.
