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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin v. McGuiness [2003] ScotCS 96 (2 April 2003) URL: http://www.bailii.org/scot/cases/ScotCS/2003/96.html Cite as: 2003 SCLR 548, 2003 SLT 1424, [2003] ScotCS 96

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Martin v. McGUINESS [2003] ScotCS 96 (2 April 2003)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD BONOMY in the cause ROBERT MARTIN Pursuer; against JOHN McGUINESS Defender:   ________________

 

 

Pursuer: Summers; Henderson Boyd Jackson, W.S.

Defender: McNeil, Q.C., J.G. Thomson; HBM Sayers

2 April 2003

THE ISSUES

1. This is an action for reparation arising out of a road accident on 21 November 1996. Liability is admitted and the outstanding issue is the assessment of damages for the pursuer's resultant back injury.
2. It is a material part of the defender's case that the pursuer exaggerates the effects of the accident. That assertion defends partly upon observations made by private investigators. In answer to the defender's averments about those observations, the pursuer has added by amendment two conclusions and four pleas-in-law based upon the contention that the private investigators' conduct infringed the right that the pursuer claims he has under Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that is a right to respect for his private and family life, his home and his correspondence. Pleas-in-law 4, 5 and 6 support his conclusions for declarator that the conduct of the private investigators was unlawful and damages for the infringement of "the pursuer's right to privacy". Plea-in-law 3 seeks to exclude evidence of the investigation and asserts that, were the Court to admit the evidence obtained, the Court would be in breach of Section 6(1) of the Human Rights Act 1998 (c.42). The first plea-in-law for the defender seeks dismissal of the conclusions for declarator and damages for breach of privacy and the second seeks the refusal of probation to the pursuer's averments relating to the work of the private investigators.
3. Mr McNeil, Q.C., for the defender, maintained that the issues raised by these pleas-in-law could be resolved at procedure roll. Mr Summers, for the pursuer, sought to resolve the apparent contradiction in the pursuer's case, that he sought to include averments about the work of the private investigator in order to obtain damages for breach of privacy but at the same time exclude the defender's averments about the findings of the investigator in relation to the claim for reparation for personal injury, by inviting me to fix a preliminary proof in relation to the issues raised by his pleas-in-law 3, 4 and 5, to be followed in due course by proof on the conclusions, averments and pleas-in-law relating to the claim for reparation for the accident.
4. There are two separate issues raised by these pleas-in-law. The first is the admissibility of the evidence gathered by the private investigators. The other matter is the relevance of the pursuer's case for declarator that the defender has infringed the pursuer's Article 8 right and for payment of damages by the defender for that breach.

ADMISSIBILITY OF EVIDENCE OBTAINED BY PRIVATE INVESTIGATOR AT PURSUER'S HOME

5. I was presented by counsel with a full account of the circumstances bearing upon the point, and I am able to deal with the issue of admissibility on the strength of the submissions made. In any event, a decision of this nature can never be final. At proof on the merits of the claim, the evidence may turn out to be different from a party's anticipation. It would then be open to the Court to make a different decision about the admissibility of the evidence, since it would then be adjudicating against a different factual background. The position is the same as that following a trial within a trial in criminal proceedings. Where the admissibility of, for example, a statement by the accused taken by police officers is determined following the hearing of evidence outwith the presence of the jury, the trial judge may make a different decision in relation to admissibility of that evidence should a different factual background emerge thereafter in the course of evidence before the jury - see Thompson v Crowe 1999 S.C.C.R. 1003 at 1040C.
6. The pursuer's third plea-in-law engages the Court directly in its role as a public authority and is in these terms:

"The report of Mr Watt, the accompanying video and any other evidence he or Messrs Milligan or Loan may give to the extent that it arises from surveillance of or entry into the pursuer's property and conversation with the pursuer's wife should not be admitted into evidence because in so doing the Court would be in breach of Section 6(1) of the Human Rights Act 1988"

Although there are no other averments about Messrs Milligan and Loan, I understand that they, along with Watt who is referred to in Article 4 and Answer 4, carried out inquiries and surveillance at the pursuer's home. The pursuer's contention that the evidence should be excluded is founded squarely on Section 6(1) of the Act which provides:

"(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right."

"Public authority" is defined in Section 6(3) and (4) as follows:

"(3) In this section 'public authority' includes -

(a) A court or tribunal, and

(b) Any person certain of whose functions are functions of a public nature, but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) In sub-section (3) 'Parliament' does not include the House of Lords in its judicial capacity."

It is plain from the inclusion of the House of Lords in its judicial capacity within the definition of a "public authority" that all courts or tribunals fall within that expression, not only when exercising administrative functions but also when adjudicating in litigation.

7. The pursuer's case is that the admission of evidence gathered in breach of Article 8 amounts in itself to an infringement of the pursuer's Article 8 Convention right to "respect for his private and family life, his home and his correspondence." Any court admitting such evidence would thus be acting in a way which is incompatible with a Convention right. The full terms of Article 8 are as follows:

"1. Everyone has the right to respect for private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

While the defender's principal position is that the pursuer has not averred circumstances which amount to an infringement of Article 8.1, he presents that case on two bases. In the first place he submits that what is averred about the conduct of the investigators is not capable of being interpreted as a failure to respect the pursuer's private and family life. As an alternative he submits that, even if at first blush the conduct could be said to be capable of being viewed as an infringement of Article 8.1, that could not be said to be the case here since, firstly, the pursuer could have no "reasonable expectation" not to have inquiry and surveillance carried out at or near his home, having made a claim for damages against the defender, and secondly, under reference to Rees v United Kingdom (1986) 9 E.H.R.R. 56 at paras. 35 and 37 and Lopez Ostra v Spain (1994) 20 E.H.R.R. 277 at para. 51, it is necessary to strike a fair balance between the interest of the pursuer in the protection of his privacy and the competing interest of not only the defender to protect his own assets from an inflated claim but the interests of society in general in ensuring the orderly resolution of claims against insurers and the avoidance of exaggerated claims.

8. I have no hesitation in rejecting the suggestion that the investigators' conduct is not capable of being viewed as an infringement of Article 8.1. Between pages 9D and 11A of the record the pursuer sets out the conduct on which his case of infringement of Article 8 is based. He takes no exception to inquiries made or video footage shot other than at his home. The inquiries that he complains of are that a private investigator came to the house and spoke to his wife on the false pretence that he was a former army colleague of the pursuer. He appeared anxious to speak to the pursuer. He persisted in his enquiries even after the pursuer's wife explained that the pursuer was unavailable. Because he was so persistent and did not seem to be of an age when he could have served in the army with the pursuer, the pursuer's wife became anxious and contemplated calling the police. When he eventually departed, she was left shaken. She and the pursuer discussed the matter on his return and thought that the private investigator might have been checking out their secluded home with a view to a burglary. Because of the that, they installed an alarm system. They both remained anxious. When they discovered the true identity of the investigator and that he was there to try to uncover facts harmful to the pursuer's claim, they became angry at the way in which their privacy was invaded. At page 11B it is averred that further upset and anger were caused to the pursuer and his family by surveillance carried out from an adjacent property, including the use of a telephoto lens to film events in the garden around the house. Although there are averments that some pictures were taken through the window of the pursuer's daughter, I was assured in the course of the debate that there were no pictures showing any part of the inside of the pursuer's property.
9. Mr McNeil submitted that, in relation to the enquiries made, the pursuer's averments boiled down to saying no more than that the investigator sought to discover whether he had the correct address for the pursuer and where the pursuer was at that time. These were questions which it was plainly legitimate for anyone seeking out the pursuer to come to his door and ask. He urged me not to define the right set out in Article 8.1 by reference to the reaction of the pursuer and his wife. He pointed out that a door-to-door salesman legitimately going about his day-to-day business might prompt a variety of reactions from a wide range of potential customers with varying attitudes to salesmen. A salesman, or even an investigator, may be entirely frank and honest and cause upset, while others may lie about their health or status and gain sympathy. He submitted that the right should be defined by reference to the conduct and the objective. He characterised the conduct set out in the pursuer's pleadings as amounting to no more than trying to establish that he had the correct address for the pursuer and where the pursuer was at that time. The objective or aim was entirely lawful, viz - as stated by the pursuer at 11A-B - "... to uncover facts harmful to the pursuer's claim for reparation ...". As for the surveillance, Mr McNeil submitted that it involved viewing what could be seen by anyone passing. The fact that the observations were made covertly rather than overtly did not change the nature of the activity. There was no question of persistent nosiness or intrusive aerial photography or anything of that nature.
10. Mr McNeil relied on Strasbourg authorities to support his submission that the private investigators had not penetrated or intruded upon the private or family life of the pursuer. He relied upon Friedl v Austria (1995) 21 E.H.R.R. 83 at para. 49 as indicating that activity which is easily observed without entering into the target's home does not fall within the notion of private or family life. In Friedl participants in a demonstration in a public place had been photographed. It was important to the Commission's conclusion, that that conduct did not amount to interference with the applicant's Article 8.1 right, that the activity was conducted in a public place and that "there was no intrusion into the 'inner circle' of the applicant's private life in the sense that the authorities entered into his home and took the photographs there." He relied also on the finding of the Court in Halford v The United Kingdom (1997) 24 E.H.R.R. 523, particularly at para. 45, for the proposition that, even where what occurs can be said to fall within that inner circle, there may well be a breach only where the applicant has a reasonable expectation of privacy. That applied to telephone calls made by the applicant at her place of work on telephones allocated to her for her own personal use.
11. Mr Summers did not suggest that the extent of the pursuer's rights should be defined by reference to his or his family's reaction to the conduct complained of. He submitted, and with this submission I agree, that whether the pursuer's Article 8.1 right has been infringed depends upon the conduct complained of. In his submission the enquiries targeted the pursuer's family life and the surveillance targeted his private life. The initial inquiry was designed to obtain private information about the pursuer from the most intimate member of his family by deception. The surveillance was carried out covertly and intruded on his private property and private life.
12. I consider that the pursuer's averments identify conduct of the private investigators which is capable of amounting to an infringement of Article 8 in the absence of other considerations justifying it. However, other considerations do arise and must be taken into account. In looking at these other considerations, I take the pursuer's case at its highest as one of an attempt to gain the confidence of the pursuer's wife by deception with a view to obtaining information about the pursuer's genuine state of health and thereafter covertly filming his activity in those areas of his private property that could be viewed from public ground. That conduct is plainly capable of falling within the definition of failing to show respect for a person's family and private life by trying to obtain information about their health and their activities within the curtilage of their own property. The question, therefore, comes to be whether, assuming that the conduct pled could amount to an infringement of the right to respect for private and family life, it is, nevertheless, conduct which did not in fact infringe the pursuer's right having regard to his reasonable expectations of privacy in the circumstances, or the fair balance that must be struck between the competing interests of the pursuer on the one hand and of the defender and the community as a whole on the other hand, or because it was conduct justified by Article 8.2. Whichever approach one takes, the issues are broadly the same. That was the unanimous view of the European Court of Human Rights in Lopez Ostra v Spain at para. 51:

"Whether the question is analysed in terms of a positive duty on the State - to take reasonable and appropriate measures to secure the applicant's rights under paragraph 1 of Article 8 , as the applicant wishes in her case, or in terms of an 'interference by a public authority' to be justified in accordance with paragraph 2, the applicable principles are broadly similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and in any case the State enjoys a certain margin of appreciation. Furthermore, even in relation to the positive obligations flowing from the first paragraph of Article 8, in striking the required balance the aims mentioned in the second paragraph may be of a certain relevance."

In my opinion the appropriate course is to consider whether the evidence is admissible by reference to the criteria by which interference with the right may be justified in accordance with paragraph 2, always having regard to the fair balance that must be struck between the respective competing interests.

13. Where evidence has been gathered in circumstances which could be said to infringe Article 8.1, it is open to the Court to admit that evidence where to do so is in keeping with the provisions of Article 8.2. There must first of all be a basis in law for admitting the evidence. In our adversarial procedure it is for the presiding judge to decide whether evidence should be admitted, having regard in particular to the question whether it is fair in all the circumstances to admit it. In making that decision the presiding judge has regard to the provisions of Article 6 of the Convention, to any European jurisprudence cited to him that has a bearing upon the decision to be made, and to the principles and rules of domestic law governing the admissibility of evidence. It is accordingly for me to determine whether it would be fair to the parties to admit the evidence which no one doubts is relevant to the principal issue to be determined in this case - the amount of compensation due to the pursuer.
14. The evidence may be admitted if there is a legitimate aim for obtaining and presenting it. That test is satisfied if the admission of the evidence is for one of the listed aims set out in Article 8.2. In this case it is said to relate to "the protection of the rights and freedoms of others." To allow evidence gathered in a way that could amount to an infringement of Article 8.1 for that reason it must also be "necessary in a democratic society" to do so. There must, therefore, be sound reasons relating to the protection of rights and freedoms of others which are recognised in our society, and the infringement involved must be proportionate in the circumstances to its aim.
15. In my opinion the presentation of a false case against any defender in litigation would amount to an infringement of his rights not only to protect his assets but to a fair trial. In an adversarial legal system, where it is for the parties to assemble and present their own cases with the presiding judge acting as a referee rather than an inquisitor, the parties must themselves instruct and carry out all necessary investigations. A party against whom a claim is made is entitled, in order to protect his own interests, to scrutinise and investigate the legitimacy of the claim made against him. One way in which that is traditionally done is to interview witnesses. It is also common place for observations to be made of the activity of an opponent. A pursuer intent upon exaggerating the effects of an injury upon him is likely to try to ensure that he gives a convincing impression of more extensive injury whenever he is in a public place. In and around his own home he is more likely to be less circumspect and off his guard. It is there that the real pursuer is likely to be observed.
16. In striking a fair balance between the interest of the pursuer in the security and integrity of his home as part of his right to respect for his private and family life and the competing interest of the defender in protecting his assets and the interests of the wider community in protecting theirs, I have had particular regard to the degree of intrusion into the pursuer's privacy (subterfuge in a conversation with the pursuer's wife at the door of her home and long-range video recording of the activities of the pursuer in the open area within the curtilage of his property capable of being viewed by a passer-by) on the one hand, and the requirement in an adversarial system of litigation that the defender should himself investigate the case against him with a view to defending himself and his assets from a false claim together with the general threat to the assets of the wider community from the impact of successful fraudulent claims on insurance premiums on the other hand. I have come to the conclusion that such inquiries and surveillance as could conceivably be proved as having been carried out in this case were reasonable and proportionate steps to be taken on behalf of the defender to protect his rights and as a contribution to the protection of the wider rights of the community, and were, therefore, necessary in a democratic society. The Court would not, in my opinion, be acting incompatibly with the pursuer's Article 8 right in admitting the evidence gathered by these inquiries and surveillance. The pursuer was bound to anticipate that his conduct might be scrutinised.

CONCLUSIONS FOR DECLARATOR AND DAMAGES

17. The declarator sought is that the attempt by the private investigator to elicit information about the pursuer from his wife and the subsequent surveillance of him and his family and visitors were unlawful acts. The conclusion for damages is for payment to him by the defender. Since he alone makes the claim for damages, only unlawful acts against him are relevant. While the lawfulness of the means employed to obtain evidence and the admissibility of that evidence may be two quite distinct issues and evidence may be admissible although it was gathered unlawfully, that is not the position in the present case. My decision on the admissibility of the evidence is based on my view that the conduct involved in gathering the evidence did not infringe the pursuer's Article 8 Convention right. Mr Summers explained that the declarator depended upon an infringement of Article 8 and the claim for damages depended on the declarator. It follows that the pursuer's case for declarator and damages is irrelevant on that ground alone. However, how a claim for damages for an infringement of Article 8 by one private individual against another private individual fits into the scheme of the Human Rights Act was debated at some length, and it is only right that I should reflect the submissions of counsel in this opinion.
18. Mr Summers initially sought to suggest that the defender's conduct was unlawful because it was not undertaken in accordance with the provisions of the Regulation of Investigatory Power (Scotland) Act 2000 (asp 11). That Act regulate the activities of law enforcement and other public authorities and does not apply to the conduct of private individuals. Mr Summers did not elaborate upon the point.
19. At one point in his submission Mr Summers suggested that, if the investigator's conduct was unlawful because it was incompatible with Article 8, then damages should be awarded against the defender "under the Human Rights Act". He later recognised that damages under that Act can only be awarded against a public authority. In Section 8(6) 'damages' are defined as 'damages for an unlawful act for public authority'. 'Unlawful' is defined as 'unlawful under Section 6(1)'. It follows that, if the admission by the Court of the evidence of the investigator is incompatible with Article 8, then admitting the evidence would be an unlawful act. That would be established by reclaiming any decision of this Court - Section 9(1)(a) of the Human Rights Act. However, if the evidence was admitted in good faith, it is not competent for an award of damages to be made against the Court as a public authority - Section 9(3).
20. In the alternative, counsel submitted that the pursuer was entitled to damages "at common law". At page 12B it is averred that "... the said surveillance and enquiries made about the pursuer were in breach of his right to privacy at common law." Later at 12E it is averred: "the pursuer is entitled to reparation for the invasion of his right to privacy at common law and for the distress caused to him thereby." However, having made some general propositions to the effect that any breach of Article 8 which was unjustified was "a delictual wrong", counsel then conceded that there was no existing remedy in Scotland apt to provide redress of the sort apparently demanded by Article 8 for breach of a free-standing right of privacy.
21. He went on to make a number of submissions about the Court's duty to provide a remedy for a pursuer who was damaged by a breach of Article 8 by a private individual rather than a public authority. He submitted that it was the duty of the Court to develop existing remedies to take account of modern conditions including the introduction of Convention rights into Scots law. While the specific obligation to interpret the law in a way which is compatible with the Convention rights was confined in Section 3 of the Act to the interpretation of "primary legislation and subordinate legislation", it followed, from the definition of the Court as a 'public authority' and the prohibition upon public authorities acting in a way which was incompatible with a Convention right, that the Court was bound to provide a remedy for any breach of a Convention right. If the Court were to hold the evidence obtained to be inadmissible because to admit it would be incompatible with Article 8, then the very gathering of the evidence itself was an unlawful act in contravention of Article 8. It followed that the right of the pursuer had been infringed; for every infringement of a right there must be a remedy. Mr McNeil for the defenders was broadly in agreement with that submission. While acknowledging that the emphasis of Section 5, 6 and 7 of the Act was on public authorities and that Section 8 restricted the liability to pay compensation under the Act to public authorities, he found it difficult to see why protection should exist for private individuals against actings by state and public authorities that were incompatible with a Convention right but not in respect of the actions of private individuals which were equally incompatible.
22. As a result of this consensus, much of the debate centred on considering the remedies which currently exist in respect of unlawful conduct which might be said to involve an intrusion upon privacy, with a view to identifying one which might be extended or developed to provide a remedy for a private individual whose right to respect for his private and family life is infringed. Two possible sources of a potential remedy for infringement of privacy were advanced by Mr Summers.
23. The first was in the opinions of the Lord President and the Lord Justice Clerk in the seven judge case of Robertson v Keith 1936 S.C. 29. It is tempting to confine the ratio of this case to the conduct of public officials. A chief constable set up an intensive surveillance operation to observe the home of the pursuer because he suspected that one of his officers was concealing himself there and refusing to return to duty. Whether the officer was concealed in the pursuer's house was never established and was immaterial to the decision. The Court proceeded on the basis that the intensive surveillance operation had caused the pursuer's neighbours, acquaintances and customers to believe that she had committed serious criminal offences with the consequence that her business had failed and she had sustained financial loss. Mr Summers founded principally upon the opinion of the Lord Justice Clerk (Aitchison) at page 48 to this effect:

"Was the setting and maintaining of the watch within the competence of the defender? This appears ultimately to be the real question in the case. I do not doubt that to set and maintain a police watch upon the house of a citizen, in circumstances that attract public attention and give rise to suspicion in the public mind, may, if done without just cause, amount to an invasion of the liberty of the citizen as truly and effectively as if the citizen were subjected to physical restraint. But whether in any case it is an unlawful invasion of liberty must depend upon the circumstances of the particular case."

Mr Summers relied also on the opinion of the Lord President (Normand) at page 41 as follows:

"It is not doubtful that any unwarranted and unlawful proceeding by a public officer resulting in injury to anyone will subject him to liability, and that in such a case proof of malice and want of probable cause is not required of the pursuer. The first question, therefore, is whether the action of the defender in ordering the watch to be set falls into this category. It was admitted, and it is, I think, the law, that, if the watch had been set in the course of investigating a crime, and if it had led to some injury to the pursuer, she would have had no case unless she could prove malice and want of probable cause. The protection which is thus given to the police and other public officials acting in the exercise of their duty is a privilege founded on the public interest - Beaton v Ivory (1887) 14 R. 1057 - for it is of the highest importance that public officials should not be hindered in their duty by fears of incurring liability for damages if their conduct is subsequently impugned as indiscreet or imprudent or going beyond what the immediate necessities required."

Under reference to a brief discussion of this case by Lord Kilbrandon, then Law Commissioner, in the 1971 Cambrian Law Review at pages 42-43, Mr Summers submitted that the true ratio of Robertson v Keith was, not that special rules apply to public officials, but that an infringement of the liberty of the individual or of his peaceful enjoyment of his property or the peaceful enjoyment of his own private life by deliberate conduct causing him distress and annoyance was excused only if it was lawful. In the case of the chief constable the conduct was lawful since it fell within the scope of his duties and responsibilities. That being so, he could be held liable only if he had acted maliciously and without probable cause,.

24. It is difficult, submitted Mr Summers, to see why, as a matter of principle, there should be any distinction between conduct of an official and conduct of a private individual that has these effects. The Court could, therefore, provide redress for such conduct. However, redress will not be available where, as here, the conduct was lawful.
25. Mr Summers recognised that the other potential source which he proposed involved a degree of judicial legislation. That appeared to be how the similar problem was being addressed in England and Wales. He found support for this approach in Hansard, H.L. November 3, 1997, col. 1230 where the Lord Chancellor expressed the expectation that, regardless of incorporation of the Convention, "the judges are very likely to develop a common law right of privacy themselves." He relied also on a similar view expressed by Lord Bingham in his article, "Opinion: Should There be a Law to Protect Rights of Personal Privacy?" [1996] E.H.R.L.R. 450 at 461-462.
26. He pointed to what he submitted were signs that the English courts were already following that course by extending the circumstances in which an action might lie for what is described in England as "breach of confidence", defined by Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No. 2) [1990] 1 A.C. 109 at 281 in the following terms:

"A duty of confidence will arise whenever the party subject to the duty is in a situation where he either knows or ought to know that the other person can reasonably expect his privacy to be protected."

In delivering the opinion of the Court in A v B plc [2002] 3 WLR 542 Wolff C.J. adopted that definition and said this at page 550:

"It is most unlikely that any purpose will be served by a judge seeking to decide whether there exists a new cause of action in tort which protects privacy. In the great majority of situations, if not all situations, where the protection of privacy is justified, relating to events after the Human Rights Act 1998 came into force, an action for breach of confidence now will, where this is appropriate, provide the necessary protection."

Examples of this development can be seen in Naomi Campbell v MGN Ltd [2002] EWCA Civ 1373; Theakston v MGN [2002] EWHC 137; Douglas v Hello! Ltd [2001] QB 967, [2001] 2 All ER 289 and Venables v News Group Newspapers Ltd [2001] Fam 430. These are all cases involving Article 10 of the Convention and its relationship with Article 8.

27. Against that background Mr Summers made a rather cautious submission that the actio iniuriarum is sufficiently wide to cover any deliberate conduct causing affront or offence to the dignity, security or privacy of the individual. He unfortunately did not elaborate upon this, or attempt to establish by reference to authority the nature of and the basis for that remedy, nor indeed whether modern Scots law recognises it as a remedy. Mr McNeil on the other hand did consider in some detail whether resort to the actio iniuriarum would be one possible way of protecting rights of privacy. In doing so he considered its role in Roman law.
28. That analysis was part of Mr McNeil's submission that Scots law has never recognised a specific right to privacy or to respect for private and family life and has tended to regard privacy as something indefinable - see Stair Memorial Encyclopaedia, Vol. 11 para. 1094. It was possible to identify specific legal wrongs against a person for which there was protection but, in general, the wrong arose because what was done or said came to the public notice. Mr McNeil pointed out by reference to Walker on Delict, 2^nd ed. chapter 21, pages 704-708 that all the situations in which Scots law had recognised infringements of rights as the result of unjustifiable intrusion into private and personal affairs involved invoking recognised principles such as those relating to copyright or breach of contract or defamation. Of course it does not follow that, because a specific right to privacy has not so far been recognised, such a right does not fall within existing principles of the law. Significantly my attention was not drawn to any case in which it was said in terms that there is no right to privacy.
29. By reference to Zimmerman The Law of Obligations at pages 1053-1059 and the Digest of Justinian, ed. Mommsen at para. 21.7 and 21.18, Mr McNeil submitted that the actio inuriarum provides redress only where deliberate conduct involves an attack on personality for an unlawful purpose. Examples were insulting and abusive behaviour, harassment or stalking, which was seen as an attack on the honour of another, beating another man's slave, which was an insult to the honour of the owner, and intruding into another's home for an unlawful purpose. It may, however, be only a short step from an assault on personality of the nature of an insult to the dignity, honour or reputation of a person, causing hurt to his feelings, to deliberate conduct involving unwarranted intrusion into the personal or family life of which the natural consequence is distress.
30. I have done no more than reflect the submissions made. Whether on infringement of Article 8 by one private individual causing loss to another, which has not in the past given rise to a successful claim, should now have that result, and the basis on which such a claim may be made remain to be determined in a case where these questions arise as live issues.

INTERLOCUTOR

31. I shall, accordingly, sustain the first and second pleas-in-law for the defenders, repel the third to sixth pleas-in-law for the pursuer, dismiss the action so far as relating to the first and second conclusions, refuse to remit to probation the averments in article 4 of condescendence from "the encounter left ..." at 10D to "... surveillance of their home" at 11C to "... privacy at common law" at 12B, and the sentence beginning "the pursuer is entitled ..." at 12D, and allow parties a proof on the remaining averments.