Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 196
A237/12	OPINION OF LORD BANNATYNE in the cause THE RIGHT HONOURABLE DAME ELISH ANGIOLINI QC Pursuer; against GEORGE ROBERT GREEN Defender: ________________

Pursuer: Dunlop QC; Balfour + Manson LLP, (for Levy & McRae, Glasgow)

Defender: Party

19 December 2013

Introduction

[1] This matter came before me as first a procedure roll at the instance of the pursuer in terms of which the court was moved to sustain the pursuer's first plea‑in‑law and to grant interdict in terms of the fourth conclusion of the summons. In the alternative, the court was invited in terms of a motion which called before me on behalf of the pursuer to grant summary decree by sustaining the pursuer's first and third pleas-in-law so far as grounded in defamation and by granting interdict in terms of the fourth conclusion of the summons.

[2] Mr Dunlop, QC appeared on behalf of the pursuer and the defender appeared on his own behalf.

Procedural background

[3] Given the way that matters developed in the course of argument before me, it is perhaps convenient at this stage to set out certain of the procedural background.

[4] The defender was originally represented by solicitors who were acting under emergency legal aid provisions. The defender's full legal aid application was refused on or about 3 October 2012. The defender sought review of the said decision. This review was however unsuccessful. The defender's agents withdrew from acting on 10 December 2012. Form 30.2 procedure was thereafter instigated and a form was received from the defender on 19 December 2012, stating that he was insisting in his defence and was going to represent himself. On 5 March 2013 a letter was received from the defender's previous agents stating that they had been reinstructed. On 29 April 2013 said agents again withdrew from acting. The defender has represented himself since that date. The case was appointed to the procedure roll for a debate on the pursuer's first plea-in-law in terms of an interlocutor of 1 May 2013. The pursuer's note of argument was lodged on 8 May 2013. The matter came before me on 18 October 2013.

Background to the action

[5] The action at the instance of the pursuer sought inter alia a non-harassment order and two interdicts. In particular, conclusion 4, with which the hearing before me was concerned, sought an interdict in the following terms:

"For interdict against the defender and anyone acting on behalf of the defender, under his direction, authority or control or at his instigation, from defaming the pursuer by representing (other than for the purposes of (i) legal proceedings, or (ii) making a report to police or other law enforcement officers), directly or by implication, that the pursuer has been involved in, or has suppressed or attempted to suppress the investigation into, alleged sexual abuse of HG and/or the alleged murder of RDG;"

The background to this action is that the defender is an active campaigner relative to the issue of child abuse. In particular the defender has alleged on numerous occasions, (a) that a paedophile ring has been operating in Aberdeen which has sexually abused children (in particular a girl named HG); and (b) that a variety of establishment figures, were involved in the paedophile ring.

[6] The pursuer was formally Regional Procurator Fiscal for Grampian, Highlands and Islands. She was subsequently appointed Lord Advocate. She was Lord Advocate from 2006 to 2011.

[7] It is not a matter of dispute (rather it is a matter of admission or deemed admission in the pleadings, given in particular the nature of answers 4 to 11) that the defender had conveyed a number of allegations of and concerning the pursuer and these allegations against the pursuer are helpfully summarised at paragraph 3 of the pursuer's note of argument and are as follows:

"3.1. That a police investigation into allegations of child abuse 'was eventually dropped on the orders of [the pursuer]'. (Condescendence 4)

3.2. That there 'is little doubt that [the pursuer] is currently abusing her position at the Crown Office to both intimidate the media and mislead Crown Office staff.' (Condescendence 4)

3.3. That the pursuer '...lied in order to protect herself and obstruct the course of justice'. (Condescendence 4)

3.4. That there has been a failure by the pursuer to '...deal effectively with paedophile rapists' and that '...no fewer than seventeen serial paedophile sex abusers were allowed to continue their horrifying crimes, secure in the knowledge of the tacit protection of the [pursuer]'. (Condescendence 3)

3.5. That it 'is a disgrace beyond words that the criminal interests of prominent individuals such as [the pursuer] are given priority over those of HG and her fellow sufferers'. (Condescendence 6)

3.6. That charges against the alleged paedophile ring '...have been effectively blocked by the [pursuer], who was deeply involved in the original perversion of the course of justice in 2000 when she was Procurator Fiscal at Aberdeen'; thereby accusing the pursuer of (i) deliberate obstruction of a criminal investigation into child abuse; and (ii) misuse of her position as Procurator Fiscal to pervert the course of justice. (Condescendence 7)

3.7. That the pursuer was deeply implicated in attempts to conceal acts of child abuse; that she was acting in an effort to protect abusers of children; that she 'effectively buried the case' against those abusers; and that she 'repeatedly failed to tell the whole truth'; thereby accusing the pursuer of (i) deliberate obstruction of a criminal investigation into child abuse; and (ii) misuse of her position as Procurator Fiscal to pervert the course of justice. (Condescendence 8)

3.8. That the pursuer is 'corrupt', having 'consistently attempted to pervert the course of justice'; and that it is 'reasonable to conclude that the murder of an innocent man can be added to the sickening child-rape crimes covered up by [the pursuer]'; thereby accusing the pursuer of (i) complicity in concealment or 'cover up' of murder and child abuse; and (ii) perversion of the course of justice. (Condescendence 9)

3.9 That the pursuer has been involved in conduct with a 'criminal element', with there being 'no doubting her increasingly desperate efforts to conceal the facts behind the multiple rapes of HG, at least seven other children and the murder of RDG', which 'attempts at suppression run counter to the course of truth, justice and the overwhelming and urgent public interest, as the rape gang and murderers are still at large'; thereby accusing the pursuer of complicity in concealment or 'cover up' of murder and child abuse. (Condescendence 10)"

Submissions on behalf of the pursuer

[8] Against the foregoing background Mr Dunlop advanced four core propositions:

(a) The essential requirements of an action of defamation having been admitted, it was for the defender to raise a relevant defence.

(b) Adopting the most generous approach to the defender's pleadings no such defence is pled.

(c) The limited restraint sought in terms of the fourth conclusion would not contravene article 10 of the European Convention on Human Rights ("the Convention").

(d) In light of the foregoing, interdict as fourth concluded for should be granted.

Mr Dunlop commenced his detailed submissions by considering what are the requirements of an action of defamation. These he submitted were encapsulated in Norrie: Defamation and Related Actions in Scots law at page 8 where the learned author says this:

"The action for defamation is by far the most common form of action arising from an attack on a person's character, honour and reputation, and in many respects it is the most peculiar. It is an intentional delict in which the intent to injure is usually irrebuttably presumed. It is a delict only if the statement or communication upon which it is based is false, but with which falsity is rebuttably presumed leaving the defender with the onus of proving, as a defence, truth or veritas. The pursuer does, however, always have the onus of proving that the statement or communication complained about is 'defamatory' and that it has been 'communicated' from the defender to either the pursuer alone or to some other person. Liability for defamation arises, therefore, only when the pursuer relevantly pleads and subsequently proves both elements."

As to whether a statement is defamatory, the test is set out by Lord Atkin in Sim v Stretch [1936] 2 All ER 1237:

"Would the words tend to lower the plaintiff in the estimation of right‑thinking members of society generally?"

Applying that test, Mr Dunlop submitted that the complained of statements regarding the pursuer could not be other than defamatory. It was his position that no right-thinking member of the public could regard such statements as other than defamatory in the most serious way. Mr Dunlop described them as paradigm examples of defamatory statements.

[9] Thus he submitted if the meaning of the words was defamatory and related to the pursuer (as he submitted they did) then it would be for the defender to establish the existence of some defence (see: Norrie at page 11 and Sexton v Ritchie & Co 1890, 17 R, 680 per Lord McLaren at 696).

[10] Turning to the issue of whether a relevant defence was pled, Mr Dunlop first directed my attention to the fact that there was no plea-in-law of veritas or fair comment.

[11] However, Mr Dunlop stressed that he did not wish to rely on a technical approach to the defender's pleadings (although, as he pointed out, the defences had in fact been prepared by counsel), rather he wished to argue that the substance of the defences, as pled, put forward no relevant defence.

[12] Mr Dunlop identified two passages which he believed, on a generous view, perhaps raised the defence of fair comment and veritas. These passages being first as regards fair comment, the following:

"Explained and averred that the defender made statements that the pursuer in her role as Regional Procurator Fiscal and Lord Advocate had acted in a manner which was corrupt, and that she had covered up the sexual abuse of children and the murder of RDG, but that the defender was expressing an opinion which he believed and continues to believe is true." (See: answer 11 at page 16 of the closed record).

As regards veritas, he referred to page 24 at answer 18, which passage was in the following terms:

"Explained and averred that any allegation which he made against the pursuer was either true or he believed it to be true."

[13] Turning first to the defence of veritas his primary position was this: that any such defence failed on the basis of the weaker alternative rule as discussed by Lord Stott in Haigh & Ringrose Ltd v Barrhead Builders Ltd 1981 SLT 157.

[14] Moreover, he contended the bare assertion that a statement is true is not sufficient. Such an averment, he submitted, is wholly lacking in specification. Mr Dunlop asked this question: what is it the pursuer has done and the defender offers to prove that she has done which would demonstrate the truth of the allegations? His position was, as I understood it, that the answer to this question is nothing.

[15] Mr Dunlop referred me, in support of the above submissions, to Adams v Guardian Newspapers Ltd 2003 SC 425 and to the observations of Lord Reed at paragraph 37, page 438:

"[37] Another consideration fortifies my conclusion on this matter. When veritas is pled as a defence in defamation proceedings (as in other contexts where a party makes serious allegations about another party's conduct), the court expects the material averments to be specific. In Macleod v Marshall, for example, Lord Young observed (at p 816): '[T]o justify a libel or slander there must be a distinct substantive averment of a fact or facts which, if proved, will justify it ...'. Although that observation appears in a dissenting opinion, the court appear to have differed as to the application of that principle rather than as to the principle itself (see, eg the observations of Lord Justice-Clerk MacDonald at p 816). The principle is illustrated by Paul v Jackson, where the defender pled veritas in respect of letters which he had written accusing the pursuer of threatening him with murder. Lord Fraser said (at p 468):

'Now, the defender did propose a counter-issue in this case; but it was in such terms of vagueness in regard to time and place that it gave no proper notice to the pursuer of what was intended to be proved against him. The month and the day of the month were not stated ... Nor was the place where the threats were uttered mentioned ... and the threats which are said to have been used were not the threats of murder charged against the pursuer in the letters. This issue was disallowed because of its vagueness, and as justifying no part of the charge against the pursuer'."

In this case, Mr Dunlop submitted, there were simply no averments of the type required to render the case sufficiently specific and accordingly relevant.

[16] Turning to the issue of fair comment, Mr Dunlop again drew my attention to Adams v Guardian Newspapers Ltd where Lord Reed had also considered the defence of fair comment and made certain observations relative to this at paragraphs 28 and 29 of his opinion, page 435:

"[28] In London Artists Ltd v Littler, Edmund Davies LJ (as he then was) said (at page 395):

'It behoves a writer to indicate clearly what portions of his work are fact and what are comment, for, in the words of Fletcher-Moulton LJ in Hunt v Star Newspaper Co Ltd [1908] 2 KB 309, 319:

'... comment in order to be justifiable as fair comment must appear as comment and must not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: see Andrews v Chapman (1853) 3 C & K 286'.

Failure to exhibit clarity in this respect carries its own risks, for, as Fletcher-Moulton LJ went on to say, at p 320:

'Any matter, ... which does not indicate with a reasonable clearness that it purports to be comment, and not statement of fact, cannot be protected by the plea of fair comment'.'

[29] The same point was made more recently by Lord Nicholls of Birkenhead in Reynolds v Times Newspapes [sic] Ltd at p 193:

'[T]o be within this defence the comment must be recognisable as comment, as distinct from an imputation of fact. The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made'."

Mr Dunlop went on to submit that what was referred to in paragraphs 3.7 to 3.9 of his note of argument were allegations of fact not opinion and therefore not covered by any defence of fair comment.

[17] Moreover, he contended that for fair comment to arise there must be a substratum of true fact underlying the comment. In support of this he referred me to Massie v McCaig 2013 SLT 373 at pages 378 and 379, paragraph 32. Without such an underpinning of true fact, the case was irrelevant. He submitted that here there was no assertion of fact said to justify the comments. Accordingly, he submitted that the test of fair comment was not met.

[18] In summary, so far as the defences were concerned, it was his position that the defender's pleadings at their highest showed no trace of a relevant defence to an allegation of defamation.

[19] Turning to the third proposition outlined at the outset of his address to the court, he elaborated upon this by directing my attention to Gatley on Libel and Slander, 11^th Edition at page 299 where this is said by the learned editors at paragraph 9.28:

"In principle, the grant of a final injunction is subject to section 12 of the Human Rights Act 1998, since this is relief which 'affects the convention right to freedom of expression'. In practice, however, this provision is much more important in relation to interim injunctions and, at least where the libel is a serious one and the injunction is expressed only in terms necessary to prevent repetition, the grant of one after trial will be legitimate and proportionate."

Mr Dunlop's position was that the libel here was serious and the interdict sought was no wider than what was necessary.

[20] In addition, he referred me to McVicar v United Kingdom (2002) 35 EHRR 22, where at pages 588 and 589, paragraphs 72 and 73 in a section headed: "The Court's assessment. 1 General principles" the court observed:

"72. The Court recalls that, as a general principle, whilst the mass media must not overstep the bounds imposed in the interests of the protection of the reputation of private individuals, it is incumbent on them to impart information and ideas concerning matters of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them.

73. However, Article 10 of the Convention does not guarantee wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public concern. Under the terms of paragraph 2 of the Article, the exercise of this freedom carries with it 'duties and responsibilities' which are liable to assume significance when, as in the present case, there is a question of attacking the reputation of private individuals and undermining the 'rights of others'. By reason of these 'duties and responsibilities', the safeguard afforded by Article 10 to journalists in relation to reporting on issues of general interest is subject to the proviso that they are acting in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism."

Mr Dunlop submitted that having regard to the foregoing there was no breach of article 10 in the circumstances of this case.

[21] Mr Dunlop went on to address me on the issue of the unavailability of legal aid in the instant case, which, as I understood it, was an issue which he believed might be raised by the defender. In relation to this he once more referred me to McVicar v United Kingdom where at paragraph 75 (page 589) the court, in considering the position of a party in similar proceedings who had been ineligible for legal aid and required to represent himself, said this:

"The Court has concluded above in relation to Article 6(1) of the Convention that the applicant was not prevented from presenting his defence to the defamation action effectively in the High Court, nor were the proceedings made unfair, by reason of his ineligibility for legal aid. As a result, it considers that such ineligibility did not, on the facts of this case, interfere with the applicant's right to freedom of expression under Article 10 of the Convention."

As I understood it, the position of Mr Dunlop was that the foregoing countered any argument that the defender might put forward in relation to the issue of his not having legal aid, therefore not being represented and this amounting to a breach of either article 6 or 10 of the Convention.

[22] Lastly, turning to the fourth proposition which he had outlined, Mr Dunlop submitted that once an infringement of substantial interest was shown it was not a matter of the discretion of the court whether to grant the interdict, rather the pursuer was entitled to an interdict. In support of this he referred me to McIntyre v Sheridan 18 April 1997 (Unreported), the opinion of Lord Osborne at pages 15 and 16 and to Cook v Gibson [2013] CSOH 64, paragraphs 14 to 16.

[23] For the foregoing reasons he invited me to grant the order sought or in the alternative to grant summary decree. With respect to the remedies sought in terms of the first two conclusions Mr Dunlop invited me to dismiss them as irrelevant, if I were to grant decree of interdict in terms of conclusion 4.

Defenders submissions in reply

[24] The defender's position was a short one, namely: he was acting on his own behalf and in those circumstances could not properly defend himself. He submitted that in those circumstances a decision in favour of the pursuer would be unfair. He described himself as a foreigner (the instance shows him as residing in England). He had no knowledge of Scots law. He was having to represent himself. He was up against a highly experienced Queen's Counsel, who had particular experience in the area of defamation. Overall therefore, although this was not expressly stated, I understood his position to be that the hearing before me was unfair and thus was a breach of article 6.

[25] This issue was first raised before me when I called on the defender to reply to the submissions made by Mr Dunlop.

[26] Having set out his position relative to unfairness the defender did not seek to engage with the substantive arguments put forward by Mr Dunlop. His position was that he was unable to do so. He, in essence, based his position almost entirely on the issue of unfairness. He did, however, make three further points:

(a) He read a letter which had been sent to the court dated 12 September 2013, number 7/23 of process. As I understood it, the principle purpose of reading this letter was to establish that he had sought to reach an amicable agreement with the pursuer in order to bring this action to an end.

(b) He contended that he was acting in the public interest.

(c) He contended that the pursuer's reputation was so bad that she could not be defamed.

Mr Dunlop sought leave to reply only in relation to one matter raised by the defender in the course of his submissions, namely: that the pursuer's reputation was so bad that she could not be defamed. He made three short and sharp points in relation to this submission: there were no averments on behalf of the defender which would allow any attempt to say that the pursuer's reputation was of such a nature; it was not a sine qua non to establish damaged reputation in Scotland and it was not, in any event, tenable to suggest that allegations of this type would not damage the reputation of anyone other than persons who were of the most disreputable character.

Discussion
[27] The starting point is to consider the question of whether there was any unfairness in the defender not having been granted legal aid and accordingly having to represent himself at the hearing before me and if so whether that amounted to a breach of article 6(1) of the Convention.

[28] In considering that question I believe that the decision of the European Court of Human Rights in McVicar v United Kingdom is of some significance. The factual nexus of that case and the issues before the court were very similar to those in the instant case.

[29] I note that McVicar v United Kingdom involved a defamation action. The facts of the case, so far as relevant to the issue before me, were as follows: see paragraphs 10 and 11:

"10. In December 1995 Mr Christie commenced an action in the High Court for defamation against the applicant, together with the magazine's editor and publishing company. The editor and publishing company were represented by a solicitor-advocate specialising in defamation and media litigation Mr David Price. Mr Price had advised the publishing company prior to publication about the legality of the article in question. A separate action was launched by Mr Christie against the printers and various distributors of the magazine.

11. During the greater part of the proceedings the applicant represented himself because he could not afford to pay legal fees and because, under Schedule 2, Part II of the Legal Aid Act 1988, legal aid was not available for defamation actions. His defence was that the allegations made in the article were true in substance and in fact."

The court held there was no breach of article 6(1) and in particular said this at paragraph 75:

"...the applicant was not prevented from presenting his defence to the defamation action effectively in the High Court, nor were the proceedings made unfair, by reason of his ineligibility for legal aid."

I also note that the court held that there was no breach of article 10 of the Convention.

[30] I am unable to identify any material circumstances which would distinguish McVicar v United Kingdom from the instant case.

[31] Moreover, as regards the fairness of the hearing I would observe that it is not unusual in these courts to have party litigants argue their own case, at first instance at, for example, motion roll hearings, procedure rolls and proofs. It is equally not unusual for party litigants to argue appeals before the Inner House. This often requires the party litigant to argue his case against senior counsel with considerable experience in the area of law which is the subject of the dispute. This shows that cases can proceed without unfairness and breach of article 6 where argued by a party litigant. It seems to me that there is nothing inherently unfair which would amount to a breach of article 6 in having a party litigant argue their case.

[32] Beyond that, looking to the particular facts of the case before me, I would observe that the defender had substantial notice of the procedure roll, the case having been sent to procedure roll on 1 May 2013 and not coming before me until 18 October 2013. The very full note of argument on behalf of the pursuer was lodged on 8 May 2013. The defender accordingly had just under 6 months' notice of the detailed argument which was to be put before the court on behalf of the pursuer. He was aware for all of that time that he would have to represent himself, his solicitors having finally withdrawn on 29 April 2013. There was no question of the defender having no time to prepare for the procedure roll or being taken by surprise by any part of the argument advanced on behalf of the pursuer.

[33] Having regard to the whole circumstances, I am not persuaded that there was unfairness in hearing the procedure roll where the defender did not have the benefit of legal aid and was thus representing himself. There was no breach of article 6 or article 10 in hearing the procedure roll. Given that I have held that there was no unfairness and no breach of article 6 or 10 of the Convention, I do not require to consider what form of relief it would have been appropriate to grant the defender had there been such a breach.

[34] I now turn to consider the pursuer's substantive arguments. I have to do this without the benefit of any material counter argument from the defender. Given that situation, I have sought, in a manner in which would not be necessary where I had heard fully developed arguments on both sides of the bar, to examine rigorously all the submissions made by Mr Dunlop.

[35] It was not disputed by the defender that the statements founded on by the pursuer were made by him. I am clearly of the view that each of the statements is defamatory of her. Applying the test of Lord Atkin in Sim v Stretch I have no difficulty in holding myself satisfied that each of the statements would tend to lower the pursuer in the estimation of right-thinking members of society generally.

[36] The defender sought to suggest in his submissions that the pursuer had no reputation to defame. As I understood it, he sought to rely, to some extent, on the letter which he read to the court and which contained a summary of criticisms which he said had been made of the pursuer.

[37] Having considered the reply made to this argument by Mr Dunlop, I believe there is substantial merit in each of the three points which he advanced. Accordingly for the reasons put forward by Mr Dunlop I reject the argument of the defender on this issue.

[38] Having held that the statements are defamatory, I believe the law is well settled and is this: where a statement made is defamatory, it is for the defender to establish the existence of some defence.

[39] Accordingly the question for the court is this: are there relevant and sufficiently specific averments of any defence set out in the defender's pleadings?

[40] In the passages of the defences referred to by Mr Dunlop I believe, looking at them in the most favourable way possible, that two lines of defence are raised, namely: veritas and fair comment. Having considered the defender's pleadings as a whole I do not believe that any other line of defence is raised.

[41] I first note that neither of these lines of defence is supported by a necessary plea-in-law. However, that could be dealt with by the moving of an appropriate minute of amendment and I take nothing from the lack of such pleas.

[42] Turning then to look at the defence of veritas, the pleadings do, in my view, fall foul of the weaker alternative rule in that belief in the truth of a statement and that statement being true are materially different. To establish his belief in the truth of these statements would not provide a defence (see: E Hulton & Co v Jones 1910 AC 20, per Lord Loreburn LC at pages 23 and 24). Thus, in that the defender only offers to prove the truth or his belief in the truth of his statements, his defence as pled of veritas is irrelevant on an application of the weaker alternative rule.

[43] Moreover, beyond that there is a critical defect in the defence of veritas as pled and that is the lack of any specification of matters such as: what the pursuer has done and where, how and when she has done it. Such averments are not there and the defence amounts to no more than a bare assertion. Such averments are essential (see: Adams v Guardian Newspapers Ltd page 438, paragraph 37). The lack of any such averments which would, if proved, demonstrate the truth of the allegations renders the defence of veritas irrelevant.

[44] For the foregoing reasons, I do not believe that a relevant and sufficiently specific defence of veritas is pled.

[45] Turning to fair comment, I believe the various arguments advanced by Mr Dunlop all have substance. As contended by Mr Dunlop, the allegations to which he referred are of fact and not opinion and thus the defence of fair comment is not open.

[46] Moreover, I am persuaded that the defence of fair comment is irrelevant in that, as asserted by Mr Dunlop, there is no underpinning of true fact which is said to form a basis for the comment. If such is set forth, the defender would be entitled to express an opinion thereon which would not be actionable, however, such an underpinning of the opinion is essential (see: Massie v McCaig at paragraph 32).

[47] The defender asserted, in the course of his submissions to me, that he was acting in the public interest, however, that does not of itself give rise to a relevant defence of fair comment or any other form of defence.

[48] For the above reasons, I find that the defence pled of fair comment is irrelevant.

[49] The defender in answer 20 at page 24 of the record raises the issue of infringement of his article 10 rights to freedom of expression by the granting of any protective order. With respect to that issue, I am persuaded on the basis of the observations of the court in McVicar v United Kingdom, to which I was directed by Mr Dunlop, that it would not be an infringement of article 10 to grant an interdict in the terms sought. It appears to me, given the nature of the allegations and as I have held absent of any defence such as veritas or fair comment justifying the defamatory allegations, there is no unlawful interference with the defender's article 10 rights in interdicting him from making the said allegations. The interdict concluded for does not go wider than is properly required to protect the pursuer's interest by preventing the repetition of the statements. Thereafter, I am persuaded by the argument put forward by Mr Dunlop that if an infringement of a substantial interest is shown (as here) it is not a matter of discretion for the court whether interdict should be granted but a matter of entitlement.

[50] It was contended by the defender that he had made efforts to settle this action and, as I understood it, his position was that these had been unreasonably refused on behalf of the pursuer. This argument was based on what was said in the letter he read to the court. Having regard to the whole terms of that letter, I do not believe that it is the case that any reasonable offer has been refused. I note in this context that a letter had been sent to the defender by the pursuer's solicitors dated 5 September 2013 stating that an undertaking to the court "to desist from the conduct complained of in the summons will bring to an end to the litigation". This has not, as I understand it, brought a favourable response. Accordingly, I do not believe any offers made by the defender would justify me in not granting the interdict in this case. Finally, as regards the letter which was read in the court, I would say this: it did not form part of the pleadings and therefore was not relevant to the debate before me. However, I allowed the defender to read it, insofar as it might raise matters which could be of significance in a general sense in considering the issues before me. I did not find anything in the letter, so far as read to me, which was of such significance.
Decision and disposal
[51] For the foregoing reasons I am of the view that the defences to the action seeking interdict as fourth concluded for are irrelevant and wholly lacking in specification and that it is appropriate to grant the interdict as concluded for at conclusion 4. There was, in addition, the alternative remedy sought of summary decree. Even if I am wrong in holding the defences irrelevant et separatim lacking in specification, I, in any event, would have granted the alternative motion for summary decree which would have produced the same practical result. It appears to me that, for the reasons above given, there was no defence to conclusion 4 and thus the test for granting a summary decree was met.

[52] As regards the other conclusions, the pursuer recognised that she could not be granted these remedies concurrently with the granting of interdict as fourth concluded for. I accordingly dismiss these conclusions. This leaves the conclusion for expenses. I was not addressed in relation to issue of expenses. I accordingly reserve my position in relation thereto.