Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 64
P575/12	OPINION OF LORD DRUMMOND YOUNG in the petition of BRIAN COOK Petitioner; for Interdict and interim interdict ________________

Petitioner: Ross; Simpson & Marwick

Respondent: Respondent in person

26 April 2013

[1] The petitioner is Head of Revenue Services at North Lanarkshire Council. The respondent is Colin Gibson, who lives within the area of North Lanarkshire. The pursuer seeks interim interdict against the respondent's making defamatory statements about him. The petition was presented on 6 June 2012. On 13 June 2012 Lord Stewart heard a motion for interim interdict, which he granted after certain amendments were made to the prayer of the petition. The prayer as now amended is in the following terms:

"to interdict the respondent or anyone acting on his behalf or on his instructions from making untrue and defamatory statements about the petitioner, to the effect that the petitioner has an inappropriate or unnatural interest in children".

The respondent has lodged answers to the petition. The petition and answers were appointed to a procedure roll discussion on the motion of the petitioner. When the case called before me, the respondent appeared in person.

[2] Counsel for the petitioner submitted that the answers lodged by the defender were irrelevant. In those answers, she submitted, the respondent admitted the essential parts of the petition, and disclosed no basis on which the order sought by the petitioner should not be granted. Consequently she moved that I grant the prayer of the petition. I propose to summarize the parties' averments, and then to consider whether the answers disclose a valid defence.

The petitioner's averments

[3] The petitioner's averments are as follows. North Lanarkshire Council became engaged in a dispute with the respondent concerning the non-payment of non-domestic rates in respect of the year 1999/2000. The petitioner became involved in that dispute to his position as Head of Revenue Services at the Council. In the course of their investigations officers of the Council, including the petitioner, sought information from the respondent concerning, among other things, the property in question and the financial affairs of the respondent and his family. The respondent took exception to the questions asked by the Council and engaged in protracted correspondence. He lodged formal complaints about certain officers of the Council including the petitioner.

[4] The petitioner further avers that since May 2011 the respondent has in correspondence pursued a particular allegation about the petitioner. On numerous occasions he stated that the petitioner has an inappropriate or unnatural interest in children. Most of the correspondence took place by email, and the petition contains a number of extracts from these emails, extending over the period from 18 May 2011 to 25 May 2012. Extracts are quoted from 16 emails in total. By way of example, the first email, sent on 18 May 2011 to Alistair Crichton, the Council's Executive Director of Finance and Customer Services and four others, contained the following statements:

"Formal complaint against Brian Cook... for unnatural practices....

It is a recorded fact Mr Cook has taken an unnatural interest in myself and my children... do any of the aforementioned officers have criminal convictions for unnatural interests is the community safe".

The ninth email, sent on 13 February 2012 to John O Hagan, the Council's Executive Director of Corporate Services and nine others, contained the statement:

"I note with interest North Lanarkshire Council eventually admitted to the Ombudsman the inappropriate/unnatural interest your colleague Mr Cook has in children and their affairs a matter now being addressed by appropriate professionals".

The sixteenth email, sent on 22 May 2012 to Mrs June Murray, the Council's Head of Legal Services and 38 others, contained the statement:

"Mrs Murray has yet to provide evidence other than [hearsay] that she has not abused her office in support of Mr Cook's inappropriate interest in children as witnessed by myself...".

[5] The emails complained about were sent to a considerable number of persons, including council officials, councillors and the Scottish Public Services Ombudsman. The petitioner further avers that there is no foundation in any of the respondent's complaints about him. His repeated allegations that the petitioner has an unnatural and inappropriate interest in children are untrue and defamatory, and have caused anxiety and distress to the petitioner. It was against that background that interdict was sought.

The respondent's answers

[6] In his answers, the respondent admits the petitioner's position with the Council, the existence of a dispute in respect of non-domestic rates, and that the petitioner inquired about the financial affairs of the respondent's children and family from 1999 or 2000. The respondent further admits that he had been in correspondence concerning the practice of the petitioner, and that he had used the term "inappropriate" under explanation that the respondent believed that what the petitioner did involved a wrong or unnatural interest in children. The respondent's children, who were aged six and seven at the time when the dispute arose, did not owe any debt to the Council. The respondent had, however, apologized for his use of the word "inappropriate" on 8 June 2012. It is stated that the petitioner sought to mislead the court by failing to refer to the terms of the apology.

[7] At this point I should note that in response to this averment the petition sets out the terms of the respondent's email of 8 June 2012, addressed to Mrs June Murray and 39 others. That email read as follows:

"For the avoidance of doubt and in order to clarify matters the expression 'inappropriate interest in children's affairs by Mr Brian Cook' in my previous email was intended only to convey the message that his enquiries into the financial affairs of my children [were] entirely inappropriate. I accept however that this wording could be misconstrued and would apologize for any offence caused as that was certainly not my intention".

The petitioner further avers that that email was followed by another, dated 11 June 2012, sent to all 70 elected members of the Counsel, enclosing the emails that had been sent from 21 May 2012 onwards. He further avers that when councillors received the latter email several expressed their concern to Mrs Murray about the allegations made by the respondent about a council officer. The petitioner also draws attention to the fact that the apology did not provide an undertaking not to repeat the allegation that the petitioner had an inappropriate and unnatural interest in children.

[8] The answers contain further averments about the alleged foundation for the respondent's complaint about the petitioner. It is stated that the petition involved an invasion of the respondent's family's privacy; the respondent's family has a right to privacy and the recovery of non-domestic rates did not allow for inquiries into the respondent's family and their personal finances.

Submissions for the petitioner

[9] Counsel for the petitioner submitted that the respondent's emails, many of which were sent to a large number of recipients, contained statements to the effect that the petitioner had an inappropriate or unnatural interest in children. Those statements were untrue and inflammatory. Interdict was accordingly necessary; the petitioner did not seek damages.

[10] As to the answers, the respondent did not deny that he sent the emails to which detailed reference is made in the petition. It is not in dispute that the emails contained the statements quoted there; thus there was no factual dispute between the parties in relation to the circulation or content of the emails. It was not stated that the statements in question were true and not defamatory. Otherwise, the respondent's answers were wide ranging, and largely irrelevant having regard to the focused aim of the petition. The respondent sought to introduce a variety of grievances which were irrelevant to the claim of defamation.

[11] The respondent's answers contained an allegation that he had apologized for using the word "inappropriate", in his email of 8 June 2012. Counsel for the petitioner drew attention to the correspondence that had followed that email, as narrated in paragraph [7] above. In particular, the apology gave no undertaking in relation to future repetition of the defamatory statements, and had been followed by the email of 11 June 2012 circulated to all elected members of the Council, which included a repetition of one of the earlier defamatory statements. That, it was submitted, was inconsistent with the purported apology. Thus the apology failed to recognize the serious nature of the defamatory allegation made and gave no undertaking in respect of future conduct. It was therefore irrelevant as a ground for not granting interdict.

Submissions for the respondent

[12] In his submissions, the respondent stated that the petitioner had asked questions about the finances of the respondent's children, which he thought was quite irrelevant to the claim for non-domestic rates and involved in any event a serious infringement of his family's right to privacy. He referred in particular to the position of his son, who is disabled; the petitioner had asked questions about the benefit that was received in respect of that son.

[13] The respondent had tried to resolve matters by giving an apology, but he was not given a proper opportunity to do so; in particular, a request for expenses had been made, which he was unable to pay. He had made serious attempts to settle the petition. Consequently he thought that each party should bear his own expenses. Apart from that, however, he did not dispute the statements that had been made in the emails referred to in paragraphs [4] and [7] above.

Decision

[14] In my opinion the answers for the respondent admit all of the material parts of the petition, and do not advance any reason holding that the statements made were not defamatory. On that basis I will grant interdict in the terms sought in the prayer of the petition.

[15] As I have mentioned, it was not disputed that the emails referred to in paragraphs [4] and [7] above were sent. Nor was it disputed that they were sent to a number of different persons connected with the Council. Those emails contained a substantial number of statements to the effect that the petitioner took an "unnatural" or "inappropriate" interest in children. In my opinion those statements are plainly defamatory. The words used clearly carry the inference that the interest shown by the petitioner in children was such a nature as to be at best undesirable and at worst criminal in nature. It is in my opinion possible to draw that inference from general knowledge about the current usage of the words "unnatural" and "inappropriate" in relation to children; that usage is within the scope of judicial knowledge. The test for whether words are defamatory is of course objective: the critical question is the inference that a reasonable person would draw from the words. On that basis I consider that I am fully entitled to draw the above inference.

[16] In the answers no ground is suggested for not drawing the foregoing inference. The great majority of the averments in the answers are irrelevant to the complaint of defamation. The respondent states a number of grievances that he has against the Council, including the underlying dispute about non-domestic rates. These, however, are not relevant to the complaint of defamation. The same is true about the alleged infringements of the respondent's family's right to privacy (under reference to article 8 of the European Convention on Human Rights); this has nothing to do with the defamatory statements made about the petitioner.

[17] The answers also refer to the inquiries that the petitioner made about the finances of the respondent and his family, including the respondent's children. These averments, too, appear to me to be irrelevant. It may well be that the petitioner asked questions about the finances of the respondent and his family in order to discover the extent to which the respondent was able to make payment of the sum due to the Council. That is speculation, however; the critical point is that inquiries of that nature do not justify statements to the effect that the petitioner shows an "inappropriate" or "unnatural" interest in children. Thus they do not furnish any defence. As to the averments regarding the apology tendered by the respondent on 8 June 2012, that did not contain any undertaking not to repeat the allegations, and that email was followed by the email of 11 June 2012 in which earlier allegations were repeated to a wider audience. For that reason I am of opinion that the apology is plainly irrelevant. Finally, the discussions regarding possible settlement of the dispute were clearly not successful, and are of no significance so far as the merits of the petition are concerned.

[18] For the foregoing reasons, I will hold that the answers as a whole are irrelevant, and will grant interdict in the terms that are now sought in the prayer of the petition.